In a most deserving case, the High Court of Madhya Pradesh in a learned, laudable, landmark and latest judgment titled Chandresh Marskole vs The State of Madhya Pradesh in Criminal Appeal No. 1580/2009 pronounced as recently as on May 4, 2022 has set aside the conviction of a man for murder and further directed the State to pay compensation worth Rs 42 lakhs observing that his conviction was a result of a botch and maliciously motivated investigation by an ‘outrightly partisan’ police. While directing the State to pay compensation, the Division Bench of Justice Atul Sreedharan and Justice Sunita Yadav further held that the appellant was free to proceed against the State for an action in tort for malicious prosecution. The Court was deciding an appeal preferred by the appellant against his conviction under Section 302, 201 IPC.
To start with, this learned judgment authored by Justice Atul Sreedharan for a Bench of Madhya Pradesh High Court at Jabalpur comprising of himself and Justice Sunita Yadav sets the ball rolling by first and foremost putting forth in the opening para that, “The Appellant Chandresh Marskole, has filed this appeal aggrieved by the judgment and conviction dated 31/07/2009, passed in Sessions Trial No.06/2009 by the learned 8th Additional Sessions Judge, Bhopal, by which, the Appellant was found guilty of an offence U/s.302 of the I.P.C and sentenced to suffer rigorous imprisonment for life. A fine of Rs.5000/- was also imposed upon him, which was deposited by the Appellant vide receipt No.59, book No.10430 on 31/07/2009 itself. He was also found guilty of an offence U/s.201 of the I.P.C and was convicted and sentenced to suffer rigorous imprisonment for a term of three years for the said offence. For reasons given in this judgement, the case reveals a sordid saga of manipulative and preconceived investigation followed by a malicious prosecution, where the police have investigated the case with the sole purpose of falsely implicating the Appellant and perhaps, deliberately protecting a prosecution witness who may have been the actual culprit.”
Be it noted, the Bench then observes in para 66 that, “In the present case, the following would reveal the nature of the investigation done by the police:- 66.1 The statement u/s. 161 Cr.P.C of PW9 Ram Prasad is recorded by the police on 21/09/08. He states that the Appellant had brought down the bedding from his hostel on 19/09/08 and loaded it onto the dickey of the car. He does not say that he had either helped the Appellant in loading the bedding into the dickey of the car or that he had even touched the bedding. Thus, when this witness says in his police statement that the bedding was heavy, the police ought to have asked him as to how he knew that the bedding was heavy if he had not assisted the Appellant in loading the same into the car? However, no such question is asked to this witness (in his Court testimony the witness specifically states in para 8 that he never touched the bedding). No question is put to this witness by the police as to how, the Appellant managed to open the hatch of the dickey at Denwa Darshan which was locked and the key to which was with him (PW9)? Ex.P26C was given by PW13 to the police on 25/10/08 and it revealed that there were four occupants in the car including PW9. However, no supplementary statement of PW9 is taken by the police enquiring who the two other occupants of the car were, as PW9 only says that besides himself, the other occupant was the Appellant. Thus, the police statement of PW9 (Ex.D3) reflects that the police recorded it as has been given by the witness and there was no interrogation of PW9 which may have revealed if he was truthfully stating the events of 19/09/08.
66.2 PW1, Dr. Hemant Varma’s police statement leaves much to be desired, and he too ought to have been interrogated by the police. Whatever has been stated by PW1 to the police on 20/09/08 (Ex.P1) and his police statement recorded on 24/09/08 is ostensibly based upon the information that he received from PW9. According to his police statement and Ex.P1, Dr. Hemant Varma had gone to Indore on 19/09/08 for some personal work. The police never interrogated PW1 as to what was the personal work for which he went to Indore on 19/09/08? where he stayed at Indore? and what was the mode of transport by which he went to Indore and whom he met there? The police never questioned PW1 that if he had to go to Indore on 19/09/08, then why did he let the Appellant borrow his vehicle with driver to go to Hoshangabad? The police deliberately did not investigate into the absence of PW1 from Bhopal on 19/09/08 and neither did they ascertain if PW1 actually went to Indore on 19/09/08 or did he go somewhere else? The police also do not question PW1 as to how he arrived at the conclusion on 20/09/08 itself that (a) the Appellant was a murderer and (b) what was the reason for PW1 was to mention in Ex.P1, that the Appellant was in a relationship with a girl and that the bedding probably contained the body of Shruti Hill? as these facts were never told by Ram Prasad (PW9) to Dr. Hemant Varma. Ram Prasad (PW9) only says that the circumstances in which the bedding was allegedly disposed of by the Appellant was suspicious. He does not even fleetingly indicate in his police statement that he suspected the bedding to contain human remains let alone the remains of a girl and if that be so, how does Dr. Hemant Varma indicate by necessary implication in his letter dated 20/09/08 (Ex.P1) addressed to the SHO P.S Kohefiza that the Appellant is a murderer and the body may be that of the deceased Shruti Hill? Dr. Hemant Varma ought to have been interrogated intensively by the police on this aspect, but he never was.
66.3 The FSL report had disclosed that there was human sperm in the panties (FSL Article A4) worn by the deceased and in the blanket in which the body was wrapped. However, the police do not send the same for a DNA analysis as it ought to have. If the evidence revealed that it was the Appellant’s sperm, it would not have been of much consequence as the consistent evidence of the prosecution points to a romantic relationship existing between the deceased and the Appellant and that in all probability they were married (as is revealed by the presence of a mangal sutra which was sent along with the body and noticed by the doctor who performed the post-mortem). However, if the DNA revealed that it was not the sperm of the Appellant, the scope of the investigation could have been enhanced.
66.4 The largest hole in the prosecution’s case is Ex.P26C. This is the receipt issued by PW13 at the Pachmarhi toll barrier which reflects that there were four passengers in the Qualis and not two as stated by PW9. PW13 in cross examination has clearly stated that there were four persons travelling in the vehicle and that the receipt was issued to the driver Ram Prasad (PW9). This receipt should have set the alarm bells ringing in the mind of the Investigating Officer. He should have resorted to more strenuous interrogation of PW9 to unravel the truth. Once Ex.P26C revealed that there were four passengers in the Qualis and not two, it should have become apparent to the IO that PW9 was lying. That coupled with the fact that Dr. Hemant Varma gave no proof of his absence from Bhopal and his presence at Indore on 19/09/08, as he did not provide any proof of journey from Bhopal to Indore on 19/09/08 and neither did he produce any witness who could have given a statement to the police establishing his presence at Indore on 19/09/08. The conduct of Dr. Hemant Varma and his claim of absence from Bhopal on 19/09/08 when analysed in the circumstance of Ex.P26C and the statement of PW13, should have goaded the IO to subject Dr. Hemant Varma to rigorous interrogation with regard to his alleged absence from Bhopal and his presence at Indore on 19/09/08 in order to either confirm or eliminate the presence of Dr. Hemant Varma as one of the four occupants of the Qualis. The IO does not even ask Dr. Hemant Varma as to why he gave his Qualis to the Appellant to go to Hoshangabad when Dr. Hemant Varma himself had to travel to Indore on the same day? The IO should have also realised that there was no material unearthed in the course of the investigation to reveal that the relationship between Dr. Hemant Varma and the Appellant was extremely close that Dr. Hemant Varma chose to sacrifice his own comfort of travelling in his car to Indore and instead offered the same to the Appellant to go to Pachmarhi? On the contrary, the letter dated 20/09/08 (Ex.P1) written by the Dr. Hemant Varma to the SHO of PS Kohefiza clearly reveals that from the very outset itself, Dr. Hemant Varma was referring to the Appellant as a murderer even before the body was recovered. All these aspects of the case ought to have made a vigilant investigator to examine the role of Dr. Hemant Varma critically to ascertain, if his role in this case was more insidious than innocent, as was sought to be made out by the police which attributed the role of a witness to him. The omission on the part of the IO of not questioning Dr. Hemant Varma (PW1) and his driver Ram Prasad (PW9) in the light of Ex.P26C is not inadvertent but deliberate. The police knew that the entire case of the prosecution was based on the testimony of PW1 and PW9 and as per their version, on 19/09/08, only two persons travelled in the Qualis to Pachmarhi and back and they were the Appellant and PW9. The emphatic evidence revealed by Ex.P26C that there were four persons in the Qualis threw the investigation into a disarray. Obviously PW9 knew for sure that there were four persons in the vehicle. The driver Ram Prasad’s continued silence and his negation of the suggestion put forth by the defence that there were four people in the vehicle, was to protect them.
66.5 The police kept the Appellant in illegal custody from 20/09/08 till his arrest on 25/09/08. Dr. Hemant Varma in his court testimony as PW1, states in paragraph 7 that the TI of PS Kohefiza took away the Appellant with him on 20/09/08. There is no material on record to show that the police ever released Appellant after he was taken away from the hostel on 20/09/08. In order to arrive at this conclusion, we took into consideration Ex.P7 which is a memorandum of identification of the dead body. The document reveals that the identification was effected by the Appellant on 22/09/08 at 1330 hrs, in the presence of witnesses Ramprasad and Rajendra in which the Appellant has confessed that he has murdered the deceased in his hostel room by strangling her and thereafter disposed of her body at Denwa Darshan. On that date, the FIR was not registered, and neither was the Appellant arrested. The next document relied upon by us is inquest report Ex.P5 dated 22/09/08 in which also the Appellant has confessed to his crime in the presence of the witnesses to the inquest proceedings. The FIR is Ex.P51 and it has been registered on 24/09/08 and the Appellant was formally arrested on 25/09/08 and the memorandum of arrest is Ex.P53. Thus, it is clear from the prosecution’s documents that the Appellant has been in the custody of the police since 20/09/08 till he was formally arrested on 25/09/08. Before his arrest, he was made to confess to the crime during the period he was in custody of the police as is reflected by Ex.P5 and 7 which clearly reveals the malice with which the police was conducting its investigation against the Appellant. The police was well aware of the inherent fallacies and shortcomings in their investigation which have been discussed hereinabove and yet, it went ahead and prosecuted the Appellant knowing fully well that he had no role to play in the crime.
66.6 The police was outrightly partisan in its investigation. It did not investigate the offence from the standpoint of the Appellant at all. Its bias is reflected from Ex.P5 and Ex.P7 where it got the Appellant to confess to his crime before witnesses on 22/09/09 even before the FIR was registered on 24/09/08 and before the Appellant was arrested on 25/09/08. The timeline establishes that the Appellant was in the continuous custody of the police from 20/09/08. This is also proved by the testimony of PW1 Dr. Hemant Varma who states that the Appellant was taken away from the hostel by the police on 20/09/08. The conduct of the police clearly reveals that it was bent upon convicting the Appellant and the statement of the Appellant u/s. 313 Cr.P.C is telling. In response to question No.2, the Appellant has answered that PW1 Dr. Hemant Varma is vengeful towards him due to campus politics. In question No. 130, the Appellant is informed by the Court that PW6 Dr. Bhagwan Waskle stated that the Appellant was staying in the boys’ hostel since 2003 to which the Appellant answers that it is correct to say so but that due to campus politics, PW6 and the Appellant are opposed to each other. Likewise, the Appellant, in his answer to question No. 135 says that PW17 Pragyesh Navlakhe is also inimical terms with him on account of campus politics. Lastly, in response to question 198 where the Appellant is asked as to why the prosecution witnesses are against him, the Appellant replies that on account of political rivalry, he has been implicated on the basis of suspicion and that Dr. Hemant Varma has got him falsely implicated. The Appellant further says that Dr. Hemant Varma knows senior officers in the police and with their help has fabricated evidence against the Appellant and has got him implicated so as to spoil the Appellant’s career and to ensure that the Appellant is unable to study in the college.
66.7 In this regard, it is painful to note that the Ld. Trial Court has not cared to reflect upon the case of the Appellant as per his statement u/s. 313 Cr.P.C. Recently, a two judge bench the Supreme Court held that it is necessary for the Trial Court to deal with a parallel hypothesis set up by the accused in the following words, “Section 313 CrPC cannot be seen simply as a part of audi alteram partem. It confers a valuable right upon an accused to establish his innocence and can well be considered beyond a statutory right as a constitutional right to a fair trial under Article 21 of the Constitution, even if it is not to be considered as a piece of substantive evidence, not being on oath under Section 313(2) CrPC. The importance of this right has been considered time and again by this Court, but it yet remains to be applied in practice as we shall see presently in the discussion to follow. If the accused takes a defence after the prosecution evidence is closed, under Section 313(1)(b) CrPC the Court is duty-bound under Section 313(4) CrPC to consider the same. The mere use of the word “may” cannot be held to confer a discretionary power on the court to consider or not to consider such defence, since it constitutes a valuable right of an accused for access to justice, and the likelihood of the prejudice that may be caused thereby. Whether the defence is acceptable or not and whether it is compatible or incompatible with the evidence available, is an entirely different matter. If there has been no consideration at all of the defence taken under Section 313 CrPC, in the given facts of a case, the conviction may well stand vitiated. To our mind, a solemn duty is cast on the court in dispensation of justice to adequately consider the defence of the accused taken under Section 313 CrPC and to either accept or reject the same for reasons specified in writing” [Reena Hazarika v. State of Assam – (2019) 13 SCC 289 – para 19]. This judgement was once again followed by a three judge bench of the Supreme Court where it held, “Under the Code of Criminal Procedure, 1973, after the prosecution closes its evidence and examines all its witnesses, the accused is given an opportunity of explanation through Section 313(1)(b). Any alternate version of events or interpretation proffered by the accused must be carefully analysed and considered by the trial court in compliance with the mandate of Section 313(4). Such opportunity is a valuable right of the accused to seek justice and defend oneself. Failure of the trial court to fairly apply its mind and consider the defence, could endanger the conviction itself [ Reena Hazarika v. State of Assam, (2019) 13 SCC 289, para 19 : (2019) 4 SCC (Cri) 546] . Unlike the prosecution which needs to prove its case beyond reasonable doubt, the accused merely needs to create reasonable doubt or prove their alternate version by mere preponderance of probabilities [M. Abbas v. State of Kerala, (2001) 10 SCC 103, para 10 : 2002 SCC (Cri) 1270] . Thus, once a plausible version has been put forth in defence at the Section 313 CrPC examination stage, then it is for the prosecution to negate such defence plea” [Parminder Kaur Vs. State of Punjab – (2020) 8 SCC 811 – paragraph 22].
66.8 However, the Ld. Trial Court has not even fleetingly dealt with the version put forth by the Appellant in his statement u/s. 313 Cr.P.C. It was incumbent upon the Ld. Trial Court to deal with the allegation levelled by the Appellant in his answer to question No. 198, that Dr. Hemant Varma was close to the police authorities. In fact, this assertion of the Appellant assumed great significance as Dr. Hemant Varma (PW1) has himself stated in paragraph 12 of his Court testimony that he contacted IG Bhopal Mr. Shailendra Shrivastava directly on his mobile phone which reflects the close relationship between Dr. Hemant Varma and the then IG Bhopal Mr. Shailendra Shrivastava, as the personal mobile number of such a senior official is not in the public domain that anyone and everyone can have access to it. Moreover, PS Kohefiza that conducted the entire investigation was under the jurisdiction of Mr. Shailendra Shrivastava, the then IG Bhopal and therefore, his influence in the case, though no more than a lingering presence like Du Maurier’s Rebecca, was enough for the Trial Court to find that the entire investigation showed signs of manipulation though the same may not be directly attributable to Mr. Shailendra Shrivastava. However, the Ld. Trial Court has unfortunately not even referred to the contentions of the Appellant in his statement u/s. 313 Cr.P.C.
66.9 The enthusiasm shown by the police in conducting this case in a tearing hurry, adds to the suspicion. A speedy trial is most desirable but when a case is investigated, charge sheeted and concluded in less than a year, the same, in the light of other circumstances and the average time usually taken to conclude a trial in this state, makes the cloud even more dense. The incident is of 19/09/08 and the judgement of the Trial Court convicting the Appellant is dated 31/06/09. In less than one year, twenty seven witnesses are examined and sixty documents are exhibited on behalf of the prosecution. A tad too efficient to not arouse suspicion.”
It cannot be lost on us that the Bench then observes in para 67 that, “Thus, from the material on record, we find the conduct of the police is malicious and the investigation has been done with the intention of securing the conviction of the Appellant for an offence he did not commit and perhaps, for shielding Dr. Hemant Varma (PW1) whose involvement in this offence is strongly suspected though there is no material to hold affirmatively against him as he was not on trial. The proximity between Dr. Hemant Varma and the then IG Bhopal Mr. Shailendra Shrivastava, and the fact that PW1 Dr. Hemant Varma’s involvement in the case was far more than that of an innocent bystander in view of what has been discussed by us hereinabove, the investigation ought to have been done by a neutral agency like the Central Bureau of Investigation in the first place.”
Most significantly, the Bench then minces no words to hold in para 68 that, “This is a case that has been deliberately botched up and the Appellant falsely implicated to protect perhaps, the actual perpetrators of the offence who may have been known to the higher echelons of the state police. Under the circumstances, the appeal succeeds, and the judgement of conviction dated 31/07/09 passed in S.T No. 6/09, imposing on the Appellant the sentence of rigorous imprisonment for life for the offence of murder punishable u/s. 302 IPC and for three years for an offence u/s. 201 IPC, is set aside. The Appellant shall be set at liberty forthwith.”
While referring to a recent case law, the Bench then pointed out in para 77 that, “More recently, the Supreme Court in Nambinarayanan Vs. Siby Mathew (2018) 10 SCC 804, awarded a compensation of rupees fifty lakhs to the former ISRO scientist Nambinarayanan who was indicted by the Kerala Police and exonerated by the Central Bureau of Investigation. However, during the course of investigation, which the Supreme Court concluded was malicious, Nambinarayanan had to spend about fifty days as an undertrial.”
Quite significantly, the Bench then concedes in para 78 that, “In comparison to the fate suffered by Nambinarayanan, the Appellant’s fate is almost one of eternal damnation. The Appellant in this case, a Gond tribal, who with much difficulty, thanks to the provision for affirmative action in the Constitution, made it to a State run Medical College and was in the fourth (final) year of M.B.B.S and was on the verge of becoming a full-fledged doctor, a support for his family and a source of inspiration for his community. However, on account of this case, his entire life has been thrown into a disarray. He has spent over four thousand seven hundred and forty days in prison, first as an undertrial after being taken into custody on 20/09/08 (formal arrest was on 25/09/08) and thereafter as a convict. Even by modest accounts, the Appellant would have earned at least rupees three lakhs per annum, whether he be in the service of the State or in private practice. Therefore, in the unique factual circumstances of this case, we hold that the Appellant is eligible for compensation on account of the violation of his fundamental right to life under Article 21 of the Constitution of India.”
