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State Of Madhya Pradesh v. Mahesh
Concise Analytical Summary of the Opinion
Factual and Procedural Background
The State of Madhya Pradesh (Appellant) filed this appeal under Section 378 of the Code of Criminal Procedure, challenging the acquittal of the respondents in Sessions Trial No.186/89 (trial before the Additional Sessions Judge, Lahar, District Bhind). The trial Court delivered judgment of acquittal on 29.6.1996. The respondents had been tried for offences under Section 302 read with Section 201 of the Indian Penal Code.
The prosecution case, as recorded in the trial, was that Kallu (a bataidar employed at Ajay Kumar's agricultural field) had prior enmity with members of the complainant's household, including Munni (Ajay's sister) and others. On the intervening night of 22–23 June 1989 Munni's eight-year-old son Amit (also called Nanu) went missing from his maternal relatives' house. A missing person report was lodged and, according to the prosecution, the dead body of Amit was recovered from a well at Sudhare on 24.6.1989. The prosecution relied on two kinds of evidence at trial: (a) last-seen evidence by witnesses Raghuvanshi (PW2) and Ramkumar (PW8), and (b) a memorandum of information (Ex.P/6) under Section 27 of the Evidence Act, said to have been given by accused Kallu which led to discovery of the dead body. The medical report indicated asphyxia due to drowning, opining the nature of death as homicidal.
At trial the respondents denied guilt; the trial Court examined the evidence and acquitted the respondents after finding both the last-seen and memorandum evidence unreliable. The State appealed against that acquittal to this Court.
Legal Issues Presented
- Whether the appellate Court should interfere with the trial Court's acquittal in the circumstances of this case.
- Whether the last-seen evidence (as given by PW2 Raghuvanshi and PW8 Ramkumar) was reliable and could be the basis of conviction.
- Whether the memorandum of information (relied upon under Section 27 of the Evidence Act) was admissible—specifically whether the statutory conditions for Section 27 (discovery, custody at time of information, and that information related distinctly to the fact discovered) were satisfied.
- Whether the conduct of the police (including timing and contents of post-mortem/post-recovery documents) raised doubt about the prosecution's claim that the dead body was recovered at the accused's instance.
- Whether there was compliance with Section 157 Cr.P.C. (investigation/reporting obligations) in the course of investigation.
Arguments of the Parties
Prosecution / Appellant (as reflected in the record)
- The prosecution's factual case as placed on record: the accused Kallu had motive/enmity with the complainant family; the boy Amit went missing and the dead body was thereafter recovered from a well; the recovery was made on the basis of information furnished by the accused (memorandum under Section 27 Evidence Act); and last-seen witnesses had seen Kallu carrying the child shortly before the child was found missing. These features formed the basis for charging the respondents under Sections 302 and 201 IPC.
Respondents / Defence (as recorded submissions)
- It was submitted (and the record shows) that the memorandum offered in evidence was prepared later and not contemporaneous with arrest; the post-mortem referral document (Ex.P/2) did not mention the accused names, indicating the police did not know the accused until after the body was taken out, thus casting doubt on the alleged recovery at the accused's instance.
- It was pointed out that the prosecution did not examine certain witnesses (e.g., Kunwar Singh, described as a witness of last seen) and that there was no cogent evidence of motive; the asserted motives were not believable.
- The defence also relied on the weaknesses in last-seen testimony (failure of witnesses to disclose contemporaneously) and the suspicious circumstances surrounding the memorandum (timing, witnesses' arrival after discovery, overwriting in date) to challenge admissibility and reliability.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Suresh Chand Bahri v. State of Bihar | Two essential requirements for Section 27 Evidence Act: (1) the person giving information must be an accused; and (2) he must be in police custody at the time of giving information. | The Court cited it to restate that custody at the time of information is a pre-condition for admissibility under Section 27, and used this to test the prosecution's claim about the memorandum. |
| Earabhadrappa Alias Krishnappa v. State of Karnataka | Two pre-requisites for Section 27: (1) the information must have caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered (only that part which led to discovery is admissible). | The Court relied on this to emphasize that only information which distinctly leads to discovery of a fact admissible under Section 27 and that the prosecution must show this causal and distinct relation. |
| Jaffer Hussain v. State of Maharashtra | The information must have led to discovery of a fact deposed to; the discovery should be of some fact which the police had not previously learned from other sources; the knowledge of the fact must be first derived from information given by the accused. | The Court quoted this formulation to explain that Section 27 requires the prosecution to prove the accused's information was the source of previously unknown knowledge, thereby justifying admissibility of the portion that caused the discovery. |
Court's Reasoning and Analysis
The Court undertook a focused analysis of the two categories of evidence relied upon by the prosecution — (A) last-seen evidence and (B) the memorandum relied upon under Section 27 of the Evidence Act — and also examined ancillary indicia such as motive and police conduct.
(A) On last-seen evidence:
- The Court reviewed the testimony of Raghuvanshi (PW2) and Ramkumar (PW8). Both witnesses were relatives of the complainant and knew Kallu by virtue of his being Ajay Kumar's bataidar.
- Raghuvanshi admitted in cross-examination that he had not informed anyone the next morning — including police and family searching the missing boy — that he had seen Kallu carrying Nanu in the night; the trial Court characterized him as a concocted witness and rejected his evidence. The appellate Court agreed that this omission undermined reliability.
- Ramkumar was similarly related to Raghuvanshi and also admitted not disclosing this information contemporaneously; the Court found his evidence equally unreliable. The Court concluded there was no clinching, reliable proof on last-seen evidence.
(B) On the memorandum under Section 27 Evidence Act:
- The Court reiterated the statutory preconditions for admissibility under Section 27 (listing four conditions including custody at the time of information and discovery of fact as a consequence of the information).
- Applying the cited precedents, the Court emphasized that the information must have caused the discovery and that the accused must have been in police custody when the information was furnished.
- The Court pointed to specific weaknesses in the memorandum evidence: (a) the memorandum witnesses (PW12 Shyamkishore Bohre and PW14 Chandraprakash) admitted they came to know of the dead body's recovery from the crowd when the body was being taken out of the well, and that they reached the well after police and crowd were already present; (b) PW12 admitted going to the Police Chowki and that there was an overwriting in the date on the memorandum without his signature and he did not know who had made it; (c) a timing inconsistency: the record shows that Kallu was arrested on 25.6.1989 whereas the memorandum allegedly bears the date 24.6.1989, which casts doubt on whether the accused was in custody at the time the information was recorded.
- Because the witnesses who signed the memorandum derived their knowledge of the discovery from the crowd (or from events after the body was removed) rather than from being contemporaneous recipients of information from an accused in custody, the Court held that the memorandum did not satisfy Section 27 requirements. The Court expressly concluded the trial Court did not err in discarding this evidence.
(C) On police conduct, motive and omissions in prosecution case:
- The Court noted the absence of the accuseds' names in Ex.P/2 (the memorandum for post-mortem) despite the prosecution's suggestion that the police knew the names before referring the body for post-mortem; this omission strengthened the inference that the police did not know the accused's names until after the body was removed.
- The Court observed that the prosecution failed to produce evidence of motive that was credible; the supposed motives advanced did not inspire confidence. The prosecution also omitted to examine Kunwar Singh (a witness of last seen), weakening the last-seen case.
- Given the cumulative weaknesses — unreliable last-seen testimony, defective Section 27 evidence, suspicious police conduct regarding documentation, and lack of credible motive/evidentiary omissions — the appellate Court found no basis to interfere with the trial Court's assessment of the evidence.
(D) On appellate interference principle:
- The Court reiterated the settled principle that appeal courts should not ordinarily disturb an acquittal if the trial Court's view is one of two possible views — even if the appellate Court might have taken a different view. The Court applied that principle here and found interference inappropriate.
(E) Procedural compliance:
- The Court also observed lack of compliance with Section 157 Cr.P.C. (as noted in the judgment) in the investigation. This non-compliance formed part of the broader assessment of the investigation's adequacy.
Holding and Implications
Holding: The appeal preferred by the State of Madhya Pradesh is dismissed.
Implications:
- The trial Court's acquittal of the respondents is affirmed; the respondents remain acquitted of the charges in Sessions Trial No.186/89.
- The Court's dismissal was grounded on the trial Court's factual and credibility findings — specifically the unreliability of last-seen testimony and the inadmissibility/doubtfulness of the memorandum relied upon under Section 27 Evidence Act — together with procedural doubts about police action and lack of credible motive evidence.
- The opinion does not purport to lay down a new legal precedent; it applies existing principles (including authorities on Section 27) to the facts and concludes that there is no ground for appellate interference with the acquittal.
This summary is based exclusively on the content of the provided opinion and does not include information beyond that text.
1. Appellant-State of M.P. has preferred this appeal under Section 378 of the Code of Criminal Procedure, after obtaining leave from this Court, against acquittal. In Sessions Trial No.186/89 the respondents were tried under Section 302, read with Section 201 of the Indian Penal Code, before the Additional Sessions Judge, Lahar, District Bhind. Vide judgment dated 29.6.96 the trial Court acquitted the respondents, against which the State of M.P. has preferred this appeal.
2. Briefly stated prosecution story is as under:
that accused Kallu was working as Bataidar at the agricultural field of complainant Ajay Kumar at village Machchand. Kallu used to visit the house of Ajay Kumar daily. Ajay's sister Munni was married with one Jainarain. Munni had objected about the visit of Kallu at the house of Ajay Kumar and she was also objecting to keep him as Bataidar. It was also stated that Kallu had also asked for some money on loan from Jainarain, but Munni had refused to give him money. On account of this, Kallu was keeping enmity with Munni. Mahesh is having his house adjoining to the house of Ajay and there was dispute between Ajay and Mahesh for keeping the bullock- cart of Mahesh in front of the house of Ajay. It was also the prosecution case that once Mahesh had hid the plate of Malti and there was dispute on that count and, it was alleged that Mahesh was keeping enmity with the complainant party.
3. In the intervening night of 22nd and 23rd June,1989 Munni and her 8 years' son Amit @ Nanu was sleeping in the house of his Mama at village Machchand, as Munni had come to her Maika on 22.5.1989. On the night of incident Amit was sleeping with Malti, who is the widow maternal aunt. There were some rains in the night, and because of that Malti lifted Amit @ Nanu and lay down him on the cot which was lying in the gallery near Mama Ravindra @ Kishori Radhe. In the morning it was found that Nanu was missing and gate of the house was found open. He was searched and thereafter missing report was lodged by Ajay Kumar at Police Chowki Machchand where missing crime no.01/81 was registered and the missing boy was searched by the police. It is also the prosecution case that on 24.6.89 the deadbody of Amit @ Nanu was found from the well of Sudhare. On the basis of the information given by accused Kallu memorandum of information was prepared and thereafter at the instance of Kallu the deadbody was recovered from the well of Sudhare. The deadbody was referred for medical examination. The doctor found that the cause of death was asphyxia due to drown, nature of death was found as homicidal and duration was within 36 hours. The statements of the witnesses were recorded, matter was investigated and charge sheet was filed. During trial the respondents abjured their guilt. Trial Court found two types of evidence -one was of last seen and for that two witnesses Raghuvanshi (PW2) and Ramkumar (PW8) were examined and another evidence was of memorandum. The memorandum Ex.P/6 was prepared in presence of Shyamkishore Bohre (PW12) and Chandraprakash @ Bhopali (PW14), as the information was given in presence of these witnesses by the accused.
4. Trial Court after considering the evidence of last seen as well as the evidence of memorandum found that both type of evidence is not at all reliable. Trial Court found that the witnesses of last seen had not given information to the Investigating Officer in the next morning when the police and family members were searching the missing boy, that they had seen Kallu who was carrying Amit in his lap in the night and, therefore, has not placed reliance thereon. So far as the evidence of memorandum is concerned, the trial Court found that it was prepared lateron and in presence of both the witnesses who are related to the complainant party, as they both reached lateron on the spot when the deadbody was taken out from the well, and considering the aforesaid evidence found that the prosecution has failed to prove the involvement of the appellant in the commission of crime by producing the evidence beyond reasonable doubt and acquitted the respondents, against which the State of M.P. has preferred this appeal.
5. We have heard the learned Counsel for the parties and perused the evidence of last seen as well as memorandum available on record. Raghuvanshi (PW2) was knowing Kallu, as he was the Bataidar of Ajay Kumar and he is the relative of Ajay Kumar. When he had seen that Kallu was carrying Nanu, he had inquired from Kallu and Kallu had told him that he is taking him for natural call, but next day when he was involved in searching the missing boy has not disclosed this fact to anybody that in the last night he had seen Kallu carrying Nanu. In the cross-examination he has admitted that he had not informed this fact to anyone else, therefore, the trial Court has rightly disbelieved on his evidence and found that he is a concocted witness and so far as the evidence of Mahesh is concerned that he was with Kallu. He had also not informed about the same to anybody and he could only know that Mahesh was also with Kallu when police arrested him.
6. So far as the evidence of Ramkumar (PW8) about last seen is concerned, he is also relative of Raghuvanshi (PW2). Similarly he had not disclosed this fact that in the previous night Kallu was carrying Nanu and he had asked him as to where he is going, he had told him that he was taking him to attend the natural call and on that count the Court has also not placed reliance on the aforesaid evidence as the same is also found not reliable. Therefore, looking to the aforesaid version of the witnesses, there is no clinching and reliable evidence of last seen on record.
7. So far as the evidence of memorandum under Section 27 of the Evidence Act is concerned, on the basis of the information given by accused Kallu and Mahesh, deadbody was recovered from the well of Sudhare. Shyamkishore Bohre (PW12) and Chandraprakash @ Bhopali (PW14) are the witnesses of memorandum. Shyamkishore Bohre (PW12) has admitted in the cross-examination that after seeing the crowd he had gone to Police Chowki where police has recorded his statement. In the cross-examination he has admitted that after seeing the crowd he had gone on the well and crowd had told him that some deadbody is lying in the well. He has admitted that there is some overwriting in the date without his signatures, but he does not know as to who made this overwriting. Chandraprakash @ Bhopali (PW14) has stated that he had also reached the well as soon as the police had reached there. He had not gone to police and crowd was there at the well. Vinod had gone into the well to take out the deadbody.
8. From the record it is not clear that when accused Kallu was arrested on 25.6.89 then how the memorandum could be prepared on 24.6.89. This shows that even if he was taken into custody, he was not arrested and without complying the legal formality of arrest if memorandum was prepared, that will raise a doubt in the prosecution case, therefore, the evidence of memorandum is also doubtful.
9. Admittedly, under Section 27 of the Evidence Act, four conditions are necessary to prove discovery --(i) there must be discovery of fact albeit relevant fact in consequence of information received from a person accused of an offence; (ii) discovery of such fact must be deposed to; (iii) at the time of receipt of the information the accused must be in the police custody; and, (iv) that only so much of the information as relates distinctly to the fact thereby discovery is admissible. In case of Suresh Chand Bahri v. State of Bihar , the Supreme Court has held that two essential requirements for the application of Section 27 of the Evidence Act are that (1) the person giving information must be an accused of any offence, and (2) he must also be in police custody. In case of Earabhadrappa Alias Krishnappa v. State Of Karnataka., , the Supreme Court has held that for the applicability of Section 27 two conditions are pre-requisite, namely (1) the information must be such as has caused discovery of the fact; and (2) the information must 'relate distinctly' to the fact discovered. Therefore, only that part of the statement of the accused made to the police could be admissible in evidence which led to discovery of a particular fact. In case of Jaffer Hussain v. State of Maharashtra , the Supreme Court has considered the question of admissibility of the evidence under Section 27 of the Evidence Act and held -
In order that the section may apply the prosecution must establish that the information given by the appellant led to the discovery of some fact deposed to by him. It is evidence that the discovery must be of some fact which the police had not previously learnt from other sources and that the knowledge of the fact was first derived from information given by accused.
In the case in hand from the evidence it appears that both the witnesses of memorandum came to know about the discovery of the dead body from the well when the dead body was taken out from the well. Therefore, the aforesaid evidence does not fulfill the requirement laid down under Section 27 of the Evidence Act and when the fact disclosed by accused already known to police and was not in exclusive knowledge of accused, the same is inadmissible in evidence and, thus, the learned trial Court has not committed any illegality in discarding the aforesaid evidence.
10. Learned Counsel for the respondents also submitted that in the document, Ex.P/2, which is the memorandum for post-mortem, the name of the accused persons have not been mentioned when it was known to the police after taking out the deadbody from the well and before referring the deadbody for post-mortem. Therefore, this conduct of the police also raises a serious doubt that names of the accused were not known to the police till the deadbody of the deceased was taken out from the well. Therefore, as has been held, it is also clear that the evidence of memorandum was prepared lateron after taking out the body from the well. Thus, the evidence of memo is doubtful and it cannot be held that the deadbody was recovered on the basis of the information given by the accused persons and at their instance. There is no evidence on record about motive. The prosecution has not examined Kunwar Singh, who was the witness of last seen and the prosecution witnesses could not prove any of the motive mentioned by them against the accused. There is no evidence on record that Kallu, who was Bataidar was a person of suspicion character or inimical to the complainant party. When he was Bataidar why he will commit such a crime for the small thing. Whatever the motives have been shown by the prosecution are not believable and do not inspire confidence. Therefore, after considering the prosecution evidence it appears that the trial Court has not committed any illegality in recording the finding of acquittal. There cannot be any interference in appeal against acquittal even in a case where two views are possible from the same set of evidence. There also cannot be any interference in appeal against acquittal on the ground that the one view taken by the trial Court is erroneous and the other view was also possible.
11. Considering the totality of the facts and circumstances of the case, no case is made out for interference. There is also no compliance of Section 157 Cr.P.C. Thus, the State appeal being devoid of any merit and substance fails and is hereby dismissed.
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