Madhya Pradesh High Court
Mukesh Tiwari vs The State Of Madhya Pradesh on 4 September, 2024
Author: G.S. Ahluwalia
Bench: G. S. Ahluwalia, Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:44012
1 Cr.A. Nos.2025/2009 and 2050/2009
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 04th OF SEPTEMBER, 2024
CRIMINAL APPEAL No. 2025 of 2009
SUNIL TIWARI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
None for the appellants.
Shri Akshay Namdeo - Government Advocate for the respondent / State.
Shri Abhay Gupta - Advocate for the complainant.
WITH
CRIMINAL APPEAL No. 2050 of 2009
MUKESH TIWARI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
None for the appellant.
Shri Akshay Namdeo - Government Advocate for the respondent / State.
Reserved on : 22/08/2024
Pronounced on : 04th/09/2024
JUDGMENT
Per G.S. Ahluwalia J.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 2 Cr.A. Nos.2025/2009 and 2050/2009 By this Common Judgment, Cr.A. No. 2025 of 2009 filed by Sunil Tiwari and DeepakTiwari and Cr.A. No. 2050 of 2009 filed by Mukesh Tiwari shall be decided.
2. The present appeals have been filed under Section 374(2) of Cr.P.C. against the judgment and sentence dated 13-10-2009 passed by 2nd Addl. Judge to the Court of Addl. Sessions Judge, Katni in S.T. No. 42/2008.
3. It is not out of place to mention that since, co-accused Bunty @ Shailendra @ Guddu son of Bhagwandas Tiwari was absconding, therefore, total 8 accused persons, namely Sunil Tiwari, Deepak Tiwari, Mukesh Tiwari, Shrichand Kori, Sunil Vishwakarma, Rakesh Choudhary, Bhawani Kant Dubey and Pappu @ Dharmendra Tiwari were tried for offence under Sections 120B, 364 read with Section 120B, 365 read with Section 120B, 302 read with Section 120B and 201 read with Section 120B of IPC. Rakesh Choudhary and Mukesh Tiwari were also tried for offence under Section 25/27 of Arms Act.
4. Co-accused Bunty @ Shailendra @ Guddu was tried at a later stage and has been convicted by judgment and sentence dated 27-1-2014 passed by 1st Addl. Sessions Judge, Katni in S.T. No. 42/2008. The co-accused has filed Cr.A. No.778 of 2014. A separate trial was conducted and evidences were recorded separately therefore in the light of judgment passed by Supreme Court in the case of A.T. Mydeen and anr. Vs. The Assistant Commissioner, Customs Department in Criminal Appeal No.1306/2021 on 29-10-2021 the appeal filed by Bunty @ Shailendra @ Guddu has been heard analogously, but shall be decided by a separate judgment.
5. By impugned judgment dated 13-10-2009, the Trial Court acquitted Pappu @ Dharmendra Tiwari, whereas convicted Sunil Tiwari, Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 3 Cr.A. Nos.2025/2009 and 2050/2009 Deepak Tiwari, Mukesh Tiwari, Shrichand Kori, Sunil Vishwakarma, Rakesh Choudhary, Bhawani Kant Dubey. The convicted accused persons filed following Cr.A.s :
S.No. Cr.A. No. Accused Remark
1 2025 of 2009 1. Sunil Tiwari
2. Deepak Tiwari
2 2050 of 2009 1. Mukesh Tiwari
3 2155 of 2009 1. Shrichand Kori Withdrawn on 28-09- 2022 4 2373 of 2009 1. Sunil Withdrawn on 28-09-
Vishwakarma 2022
2. Rakesh
Choudhary
5 285 of 2010 1. Bhawani Kant Withdrawn on 28-09-
Dubey 2022
6. The Appellant Sunil Tiwari has been convicted and sentenced for the following offences :
S.No. Under Section Sentence
1 120 B of IPC 7 years R.I. and fine of Rs. 500/- in default
3 months R.I.
2 364/120B of IPC 10 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
3 365/120B of IPC 7 years R.I. and fine of Rs. 500/- in default
3 months R.I.
4 302/120B of IPC Life Imprisonment
5 201/120B of IPC 3 years R.I. and fine of Rs. 500/- in default
3 month R.I.
All the sentences shall run concurrently.
7. The Appellant Deepak Tiwari has been convicted and sentenced for the following offences :
S.No. Under Section Sentence
1 120 B of IPC 7 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 04-09-2024
19:10:32
NEUTRAL CITATION NO. 2024:MPHC-JBP:44012
4 Cr.A. Nos.2025/2009 and 2050/2009
2 364/120B of IPC 10 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
3 365/120B of IPC 7 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
4 302/120B of IPC Life Imprisonment
5 201/120B of IPC 3 years R.I. and fine of Rs. 500/- in
default 3 month R.I.
All the sentences shall run concurrently.
8. The Appellant Mukesh Tiwari has been convicted and sentenced for the following offences :
S.No. Under Section Sentence
1 120 B of IPC 7 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
2 364/120B of IPC 10 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
3 365/120B of IPC 7 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
4 302/120B of IPC Life Imprisonment
5 201/120B of IPC 3 years R.I. and fine of Rs. 500/- in
default 3 month R.I.
6 25/27 Arms Act 3 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
All the sentences shall run concurrently.
9. According to the prosecution story, the complainant Sonu Ben, lodged an FIR on 17-11-2007, alleging that at about 9:00 A.M., he was sitting with Sagar Singh and Gaurav Singh and was having a cup of Tea in Gupta Hotel situated in Shivhare Complex. At that time, one black coloured Bolero Jeep bearing registration no. MP 21 E 0855 which was being driven by Shrichand Kori, came there and stopped ahead of Gupta Hotel. Mukesh Tiwari, Bhawanikant Dubey, Rakesh Choudhary, Sunil Vishwakarma deboarded the jeep. Mukesh Tiwari caught hold of collar of Sagar Singh and scolded that he is showing off too much and pointed a Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 5 Cr.A. Nos.2025/2009 and 2050/2009 country made pistol on his temporal region. Bhawani also took out a country made pistol and pointed towards the abdominal region of Sagar Singh whereas Rakesh Choudhary pointed a knife towards Sagar Singh. Sunil Vishwakarma forcibly made Sagar Singh to sit in Bolero Jeep and it was alleged that the accused persons abducted Sagar Singh and went towards N.K.J. The FIR for offence under Sections 365, 368, 34 of IPC was registered.
10. C.L. Patel, Sub-Inspector went to spot along with complainant Sonu Ben. After 10-15 minutes, the Town Inspector also reached there. Spot map was prepared on the instructions of the witnesses. The statements of witnesses were recorded. On 21-11-2007, Shrichand Kori was arrested along with Bolero Jeep bearing registration No. MP 21 E 0855. On 27-11-2007, an information was received that Rakesh Choudhary has been arrested by Umaria Police Station accordingly he was brought to Katni. On 27-11-2007, Sunil Vishwakarma was also arrested and on his disclosure, the dead body of Sagar Singh was recovered. The dead body was got identified from his father. The photographs of the dead body were taken. The blood stained earth as well as plain earth, three pieces of rope, one blood stained Baniyan were seized from the spot. The dead body was sent for post mortem. On 3-12-07 Rakesh Choudhary was arrested and on 8-12-2007 the appellant Mukesh Tiwari and Bhawani Kant Dubey were arrested. Deepak Tiwari was arrested on 6-1-2008. Sunil Tiwari was arrested on 21-11-2007. The D.N.A. test of the dead body was got done. The seized articles were sent for forensic examination. The police after completing the investigation filed charge sheet for offence under Sections 365, 368, 364, 302, 201, 120B, 34 of IPC whereas the investigation against absconding co-accused Bunty @ Shailendra @ Guddu was kept pending under Section 173(8) of Cr.P.C.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 6 Cr.A. Nos.2025/2009 and 2050/2009
11. The Trial Court by order dated 1-5-2008, framed charges under Sections 120B, 364 read with Section 120B, 365 read with Section 120B, 302 read with Section 120B, 201 read with Section 120B of IPC against Appellants Sunil Tiwari, Deepak Tiwari, Mukesh Tiwari as well as Shrichand Kori, Sunil Vishwakarma, Pappu @ Dharmendra, Bhawani Kant Dubey, Rakesh Choudhary and also for offence under Section 25/27 of Arms Act against Rakesh Choudhary and Mukesh Tiwari.
12. The Appellants abjured their guilt and pleaded not guilty.
13. The prosecution examined Thakur Guman Singh (P.W.1), Sonu Ben (P.W.2), Awadhesh Tiwari (P.W.3), Surendra Kumar Jharia (P.W.4), Gaurav Singh (P.W.5), Sandeep Yadav (P.W.6), P. Kuzoor (P.W.7), Suresh Jain (P.W.8), C.L. Patel (P.W.9), Swami Prasad (P.W.10), Abhishekh (P.W.11), Tilak Singh (P.W.12), Ateen Tiwari (P.W.13), Manoj (P.W.14), Sardar Singh (P.W.15), Amit (P.W.16), Akhilesh Tiwari (P.W.17), Bundeldhar Dwivedi (P.W.18), Amritlal (P.W.19). Mukesh Mishra (P.W.20), A.V. Singh (P.W.21), Dr. B.B. Singh (P.W.22), Ram Kumar Tiwari (P.W.23), Vinod Kumar Dwivedi (P.W.24), Shrikant Gattani (P.W.25), Umesh Dubey (P.W.26), Priyank Agrawal (P.W.27), Harkesh Choudhary (P.W.28), Rajesh Raghuvanshi (P.W.29), Vinod Singh Baghel (P.W.30), Sunny Khampariya (P.W.31), Saidatt Bohare (P.W.31 (this witness has also been numbered as P.W.31), Kumar Iskandh (P.W.32), Kartik Ram Krishna Aiyyar (P.W.33), Amrish Tiwari (P.W. 34), and Dr. Anil Kumar (P.W. 35).
14. The appellants examined Sarita Choudhary (D.W.1) and Narendra Jaiswal (D.W.2) in their defence.
15. The Trial Court by impugned Judgment and Sentence acquitted Pappu @ Dharmendra whereas convicted and sentenced Sunil Tiwari, Mukesh Tiwari, Deepak Tiwari, Shrichand Kori, Sunil Vishwakarma, Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 7 Cr.A. Nos.2025/2009 and 2050/2009 Rakesh Choudhary, and Bhawani Kant Dubey for the offences as mentioned above.
16. As already pointed out, Shricchand Kori, Sunil Vishwakarma, Rakesh Choudhary and Bhawani Kant Dubey have already withdrawn their appeals.
17. Therefore, by this judgment, the appeals filed by Sunil Tiwari, Deepak Tiwari and Mukesh Tiwari shall be considered.
18. In the present case, the Counsel for the Appellants did not appear, therefore, this Court by order dated 21-3-2022, appointed multiple lawyers as amicus curiae. However, on 22-8-2024, when this case was taken up for final hearing, even the amicus curiae did not appear, therefore, in the light of Judgment passed by Supreme Court in the case of Suryabaksh Singh Vs. State of U.P. reported in 2014(14) SCC 222, this Court itself went through the record and heard the learned Counsel for the State.
19. Considered the submissions made by Counsel for State and perused the record.
20. As per the prosecution story, on 17-11-2007 the deceased Sagar Singh was abducted by Mukesh Tiwari, Bhawani Kant Dubey, Sunil Vishwakarma, Rakesh Choudhary in a Bolero Jeep, whereas Shrichand Kori was the driver of Bolero Jeep. The dead body of Sagar Singh was discovered on 27-11-2007 on the information given by Sunil Vishwakarma and thereafter the accused persons were arrested and incriminating articles were seized from them.
21. Thus, it is clear that Appellant Sunil Tiwari, Deepak Tiwari, and Pappu @ Dharmendra (acquitted) were not named in the FIR which was lodged on the allegations of abduction of Sagar Singh.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 8 Cr.A. Nos.2025/2009 and 2050/2009
22. At the cost of repetition, it is mentioned that Shrichand Kori, Bhawani Kant Dubey, Sunil Vishwakarma and Rakesh Choudhary who were named in the FIR have already withdrawn their appeals.
23. Therefore, this Court would consider the allegations of abduction, recovery of dead body of Sagar Singh and incriminating articles seized from Appellants Sunil Tiwari, Mukesh Tiwari and Deepak Tiwari.
24. Thus, this case is based on circumstantial evidence of last seen together, recovery of incriminating article from Mukesh Tiwari and conspiracy against Sunil Tiwari and Deepak Tiwari.
25. Before considering the allegations against the appellants, this Court would like to consider the law governing the field of circumstantial evidence.
26. The Supreme Court in the case of Munish Mubar v. State of Haryana reported in (2012) 10 SCC 464 has held as under:-
"28. Undoubtedly, in a case of circumstantial evidence, all the circumstances must be fully established and all the facts so established, must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature. The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused."
27. The Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has held as under:-
152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 9 Cr.A. Nos.2025/2009 and 2050/2009 v. State of Madhya Pradesh. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh and Ramgopal v.
State of Maharashtra. It may be useful to extract what Mahajan, J. has laid down in Hanumant case:
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between „may be‟ and „must be‟ is long and divides vague conjectures from sure conclusions." (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 10 Cr.A. Nos.2025/2009 and 2050/2009 tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."
156. Lord Goddard slightly modified the expression "morally certain" by "such circumstances as render the commission of the crime certain".
157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case was approved by this Court in Anant Chintaman Lagu v. State of Bombay. Lagu case21 as also the principles enunciated by this Court in Hanumant case have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases -- Tufail case, Ramgopal case, Chandrakant Nyalchand Seth v. State of Bombay, Dharambir Singh v. State of Punjab. There are a number of other cases where although Hanumant case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration, Mohan Lal Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 11 Cr.A. Nos.2025/2009 and 2050/2009 Pangasa v. State of U.P., Shankarlal Gyarasilal Dixit v. State of Maharashtra and M.G. Agarwal v. State of Maharashtra -- a five-Judge Bench decision.
28. The Supreme Court in the case of Padala Veera Reddy v. State of A.P., reported in 1989 Supp (2) SCC 706 has held as under :
10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra.)"
11. See also Rama Nand v. State of Himachal Pradesh, Prem Thakur v. State of Punjab, Earabhadrapa alias Krishnappa v. State of Karnataka, Gian Singh v. State of Punjab, Balwinder Singh v. State of Punjab.
29. The Supreme Court in the case of Balwinder Singh Vs. State of Punjab reported in 1995 (Supp) 4 SCC 259 has held as under :
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 12 Cr.A. Nos.2025/2009 and 2050/2009
4. In a case based on circumstantial evidence, it is now well-settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. It is in the context of the above-settled principles, that we shall analyse the evidence led by the prosecution.
30. The Supreme Court in the case of Harishchandra Ladaku Thange v. State of Maharashtra, reported in (2007) 11 SCC 436 has held as under :
8. "9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 13 Cr.A. Nos.2025/2009 and 2050/2009 of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v.
State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus : (SCC pp. 206-07, para 21) „21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.‟
12. In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests : (SCC pp. 710-11, para 10) „10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 14 Cr.A. Nos.2025/2009 and 2050/2009 of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.‟
13. In State of U.P. v. Ashok Kumar Srivastava it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
14. Sir Alfred Wills in his admirable book Wills‟ Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence : (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar v. State of M.P. it was observed thus : (AIR pp. 345-46, para 10) „10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 15 Cr.A. Nos.2025/2009 and 2050/2009 of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.‟
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be based on circumstantial evidence, must be fully established. They are : (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
31. Thus, the evidence led by prosecution shall be considered in the light of law laid down by Supreme Court.
32. Since, the allegations made against Mukesh Tiwari, Sunil Tiwari and Deepak Tiwari are different, therefore, the case of every appellant shall be considered separately.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 16 Cr.A. Nos.2025/2009 and 2050/2009 Appellant Mukesh Tiwari Abduction of Sagar Singh
33. As already pointed out, the allegation of abduction is against appellant Mukesh Tiwari.
34. Prosecution has examined Sonu Ben (P.W.2), Gaurav (P.W. 5), Sandeep Yadav (P.W.6), and Abhishekh (P.W.11) to prove the allegation of abduction.
35. Sonu Ben (P.W.2) is the complainant. According to this witness, the incident of abduction took place at about 9:00 A.M. and F.I.R., Ex. P.5 was lodged at 9:30 A.M. This witness re-iterated the allegations which he had made in the FIR, Ex. P.5. He further stated that immediately after the incident, he rushed to the house of Sagar and informed his mother about the incident, and thereafter came to Police Station to lodge the FIR. The FIR, Ex. P.5 was lodged within 30 minutes and the distance of police station from the place of incident was only 1 Km. Although this witness was cross-examined in detail, but except few omissions and contradictions, nothing substantial could be pointed out by the defence, so as to make the evidence of this witness unreliable. In the FIR, the number of the Bolero Jeep was specifically mentioned and the names of all the five accused persons were also specifically mentioned. The prompt lodging of FIR lends credit to the correctness of the allegations, but also rules out the possibility of over-implication, exaggeration or deliberations. The Supreme Court in the case of Krishnan and another Vs. State Represented by Inspector of Police reported in (2003) 7 SCC 56 has held as under :
17. The fact that the first information report was given almost immediately, rules out any possibility of deliberation to falsely implicate any person...............Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32
NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 17 Cr.A. Nos.2025/2009 and 2050/2009
36. The Supreme Court in the case of State of U.P. Vs. Harban Sahai reported in (1998) 6 SCC 50 has held as under :
13. PW 1‟s version regarding the occurrence gets a very stable corroboration from the FIR which was lodged by him within two hours of the occurrence. The High Court did not entertain any doubt that the FIR was ante-dated or that there was any delay in its lodgement. Even the defence did not contend like that. In such a situation the prompt and early reporting of the occurrence by PW 1 to the police with all its vivid details gives us an assurance regarding truth of his version.
37. The Supreme Court in the case of Satpal Singh Vs. State of Haryana reported in (2010) 8 SCC 714 has held as under :
15. This Court has consistently highlighted the reasons, objects and means of prompt lodging of FIR. Delay in lodging FIR more often than not, results in embellishment and exaggeration, which is a creature of an afterthought. A delayed report not only gets bereft of the advantage of spontaneity, the danger of the introduction of a coloured version, an exaggerated account of the incident or a concocted story as a result of deliberations and consultations, also creeps in, casting a serious doubt on its veracity. Thus, FIR is to be filed more promptly and if there is any delay, the prosecution must furnish a satisfactory explanation for the same for the reason that in case the substratum of the evidence given by the complainant/informant is found to be unreliable, the prosecution case has to be rejected in its entirety. (Vide State of A.P. v. M. Madhusudhan Rao.)
38. Furthermore, the evidence of Sonu Sen (P.W.2) finds corroboration by evidence of Gaurav (P.W.5), Sandeep Yadav (P.W.6), and Abhishekh (P.W.11).
39. Gaurav (P.W. 5) has stated that it was 9:00 to 9:15 A.M. He was sitting along with Sagar Singh, Sonu Ben (P.W.2) and Roop Chand by the Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 18 Cr.A. Nos.2025/2009 and 2050/2009 side of Gupta Hotel. At that time, one bolero jeep of black colour came and stopped by the side of the road. After about 10 minutes, it went towards Neeraj Talkies and turned around and stopped near the shop of one Ajju Garg. Mukesh Tiwari (appellant), Bhawani Kant Dubey and two more persons who were not known to this witness, deboarded from the jeep. Mukesh and Bhawani Kant Dubey were having country made pistol. They pointed towards Sagar Singh. Another person pointed knife. Fourth person caught hold of Sagar and was also having one white coloured bomb in his hand. He forcibly took away Sagar Singh and compelled him to sit in the bolero jeep. However, the jeep did not start, therefore two persons pushed the jeep. Thereafter the jeep went towards N.K.J. He informed Viru Tiwari, Pappu Dubey on phone about the incident. This witness also informed Guman Singh (P.W.1), the father of Sagar Singh on mobile. It was alleged that few days back, some dispute took place with Sunil Tiwari and therefore, Sagar Singh was abducted. In cross-examination, he admitted that his police statement under Section 161 of Cr.P.C. was recorded on 5-12-2007. However, the delay in recording of police statement would not make much difference, because the name of this witness is mentioned in the FIR, Ex. P.5. Thus, the presence of this witness on the spot at the time of abduction is not doubtful. This witness also stated that immediately after the incident of abduction, he went to the house of appellant Mukesh Tiwari to find out the whereabouts of abductee Sagar, but the appellant was not in his house. This witness has specifically stated that Mukesh Tiwari was armed with country made pistol and had abducted the deceased Sagar. Nothing material could be elicited from his cross-examination, which may make his evidence unreliable.
40. Sandeep Yadav (P.W.6) is another witness of abduction. He has stated that Sunil Tiwari, Mukesh Tiwari, Sunil Vishwakarma, Bhawani Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 19 Cr.A. Nos.2025/2009 and 2050/2009 Dubey are known to him, whereas the other accused persons are not known to him. The deceased Sagar was also known to this witness. He has stated that on 17-11-2007, at about 9 A.M. he was standing near Neeraj Talkies. At that time one black coloured bolero jeep came there and Mukesh Tiwari (appellant) and three others came down and Mukesh Tiwari pointed a country made pistol towards Sagar Singh, whereas another person also pointed a country made pistol. One person pointed knife and Sagar Singh was dragged towards the jeep and thereafter they went towards N.K.J. Lot of persons had gathered there. About one month prior to the date of incident, he and Sagar were going towards Gayatri Nagar. Sagar Singh was stopped by Sunil Tiwari near Durga Temple. Sunil Tiwari had abused Sagar Singh and had also extended a threat that he would kill him. Thereafter they came to Gayatri Nagar. 7-8 days prior to incident of abduction, Sunil Tiwari had suggested this witness that he should leave the company of Sagar otherwise, he too would be killed. At the time of incident of abduction, he was standing near Neeraj Talkies and Abhishekh (P.W.11) was also standing there. Co-accused Dharmendra was talking to somebody on mobile that Sagar is sitting in Gupta Hotel. 4-5 minutes thereafter, one black coloured bolero jeep came and stopped in front of the shop of Ajju Garg and one Bhaijaan. Co-accused Dharmendra Tiwari was also identified by this witness in the Court. After 8-10 days of abduction, this witness came to know that one Sunil Vishwakarma has been arrested and therefore, this witness went to police station, where he was informed by police about the arrest of Sunil Vishwakarma. Sunil Vishwakarma made a statement to the police and also made a statement about the location of the dead body. On the same day, the police took Sunil Vishwakarma to forest area. Sunil Vishwakarma pointed out the tree with which the deceased Sagar was tied. The memorandum of Sunil Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 20 Cr.A. Nos.2025/2009 and 2050/2009 Vishwakarma was recorded. Blood was lying near the tree which was pointed by Sunil Vishwakarma. The dead body of Sagar Singh was lying at some distance. The spot map, Ex. P.12 was prepared. Baniyan and pieces of rope were seized. The lash panchnama Ex. P.13 was prepared. The co-accused Sunil Vishwakarma was arrested vide arrest memo Ex. P.14. In cross-examination, this witness stated that he had narrated the factum of enmity between Sunil Tiwari and Sagar Singh to the police, but could not explain as to why that fact was not mentioned in his police statement, Ex. D.5. He also could not explain that why the fact that Sunil Tiwari had also threatened this witness is not mentioned in his police statement, Ex. D.5. In cross-examination by the appellant Mukesh Tiwari, he stated that he had informed the police that he was standing near the curve situated near Neeraj Talkies, but could not explain as to why the fact that he was standing near the curve was not mentioned in his police statement, Ex. D.5. He also admitted that in his police statement, Ex. D.5 he had not informed the police that bolero jeep had taken a turn from the curve situated near Neeraj Talkies. He also admitted that he had not informed the police that Mukesh Tiwari had pointed the country made pistol. He further stated that he resides near the house of Guman Singh (P.W.1) and the house of Guman Singh is approximately ½ Km away from the place of incident.
41. Abhishekh (P.W. 11) is a chance witness who had gone to the barber shop and since, there was a rush in the shop, therefore, this witness came out of the shop and was standing outside. He saw that one vehicle slowed down near the Gupta Hotel, and after taking turn from Neeraj Talkies, stopped near the shop of Ajju Garg and Bhaijaan. The Appellant Mukesh Tiwari and other accused persons deboarded from the vehicle and forcibly took away Sagar with them. In cross examination, he stated that Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 21 Cr.A. Nos.2025/2009 and 2050/2009 he stayed back for 15-20 minutes but did not give any information to police. Thereafter he went in search of Sagar to village Jhalwara and Hirwara. On 19-11-2007, he found that police personnel were investigating the matter therefore, he informed the police personnel that he too has witnessed the incident. Guman Singh (P.W.1) did not meet him on 17-18. He further stated that prior to incident, hot talk had taken place between Sunil Tiwari and Sagar but could not explain as to why said fact is not mentioned in his police statement, Ex. D.7. He further stated that prior to abduction, Sunil Tiwari had also assaulted him, but fairly conceded that no FIR was lodged.
42. In view of the evidence of Sonu Ben (P.W.2), Gaurav (P.W.5), Sandeep Yadav (P.W.6) and Abhishekh (P.W.11), coupled with the fact that the FIR, Ex.P.5 thereby informing the police about the abduction of Sagar was lodged within a period of 30 minutes of the abduction, this Court is of the considered opinion, that the prosecution has proved the allegation of abduction of Sagar by Mukesh Tiwari and other co-accused persons, namely Shrichand Kori, Sunil Vishwakarma, Bhawanikant Dubey and Rakesh Choudhary. Thus, it is held that the deceased Sagar was abducted by Mukesh Tiwari, Shrichand Kori, Sunil Vishwakarma, Bhawani kant Dubey and Rakesh Choudhary on 17-11-2007. Last Seen Together
43. The Supreme Court in the case of Ashok v. State of Maharashtra, reported in (2015) 4 SCC 393 has held as under :
8. The "last seen together" theory has been elucidated by this Court in Trimukh Maroti Kirkan v. State of Maharashtra, in the following words: (SCC p. 694, para
22) "22. Where an accused is alleged to have committed the murder of his wife and the prosecution succeeds in leading Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 22 Cr.A. Nos.2025/2009 and 2050/2009 evidence to show that shortly before the commission of crime they were seen together or the offence takes place in the dwelling home where the husband also normally resided, it has been consistently held that if the accused does not offer any explanation how the wife received injuries or offers an explanation which is found to be false, it is a strong circumstance which indicates that he is responsible for commission of the crime. Thus, the doctrine of last seen together shifts the burden of proof onto the accused, requiring him to explain how the incident had occurred. Failure on the part of the accused to furnish any explanation in this regard, would give rise to a very strong presumption against him.**"
9. In Ram Gulam Chaudhary v. State of Bihar, the accused after brutally assaulting a boy carried him away and thereafter the boy was not seen alive nor was his body found. The accused, however, offered no explanation as to what they did after they took away the boy. It was held that for absence of any explanation from the side of the accused about the boy, there was every justification for drawing an inference that they had murdered the boy.
10. In Nika Ram v. State of H.P., it was observed that the fact that the accused alone was with his wife in the house when she was murdered with a "khukhri" and the fact that the relations of the accused with her were strained would, in the absence of any cogent explanation by him, point to his guilt.
11. The latest judgment on the point is Kanhaiya Lal v. State of Rajasthan. In this case this Court has held that the circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing the connectivity between the accused and the crime. Mere non-explanation on the part of the accused by itself cannot lead to the proof of guilt against the accused.
12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen together, the prosecution is exempted to prove exact Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 23 Cr.A. Nos.2025/2009 and 2050/2009 happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non- explanation of death of the deceased, may lead to a presumption of guilt.
13. Here another judgment in Harivadan Babubhai Patel v. State of Gujarat, would be relevant. In this case, this Court found that the time-gap between the death of the deceased and the time when he was last seen with the accused may also be relevant.
44. The Supreme Court in the case of Digamber Vaishnav v. State of Chhattisgarh reported in (2019) 4 SCC 522 has held as under :
40. The prosecution has relied upon the evidence of PW 8 to show that the accused and victims were last seen together. It is settled that the circumstance of last seen together cannot by itself form the basis of holding accused guilty of offence. If there is any credible evidence that just before or immediately prior to the death of the victims, they were last seen along with the accused at or near about the place of occurrence, the needle of suspicion would certainly point to the accused being the culprits and this would be one of the strong factors or circumstances inculpating them with the alleged crime purported on the victims. However, if the last seen evidence does not inspire the confidence or is not trustworthy, there can be no conviction. To constitute the last seen together factor as an incriminating circumstance, there must be close proximity between the time of seeing and recovery of dead body.
41. In Arjun Marik v. State of Bihar, it has been held as under: (SCC p. 385, para 31) "31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 24 Cr.A. Nos.2025/2009 and 2050/2009 would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
42. In Kanhaiya Lal v. State of Rajasthan, the Court has reiterated that the last seen together does not by itself lead to the inference that it was the accused who committed the crime. It is held thus: (SCC p. 719, para 12) "12. The circumstance of last seen together does not by itself and necessarily lead to the inference that it was the accused who committed the crime. There must be something more establishing connectivity between the accused and the crime. Mere non-explanation on the part of the appellant, in our considered opinion, by itself cannot lead to proof of guilt against the appellant."
45. The Supreme Court in the case of Shailendra Rajdev Pasvan v. State of Gujarat, reported in (2020) 14 SCC 750 has held as under :
15. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In Bodhraj v. State of J&K, Rambraksh v.
State of Chhattisgarh, Anjan Kumar Sarma v. State of Assam following principle of law, in this regard, has been enunciated: (Shailendra Rajdev Pasvan case, SCC OnLine Guj para 16) "16. ...The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 25 Cr.A. Nos.2025/2009 and 2050/2009 coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."
46. Therefore, the circumstance of Last Seen Together against the Appellant Mukesh Tiwari shall be considered in the light of law laid down by Supreme Court.
47. In order to use the circumstance of Last Seen Together, the prosecution must prove that there was close proximity between the Last Seen Together and time of death of the deceased.
48. Therefore, first of all, this Court would like to consider the Post Mortem Report, Ex. P.16. Dr. Suresh Jain (P.W.8) has proved the Post Mortem Report which reads as under :
Dead body of young Adult Male in advanced stage of petrification. Lying straight supine with missing phalynxes of all fingers of left hand and left thumb completely. Margins of wound is (Illegible) and irregular. Bones of right leg with thigh are exposed ankle to hip with very small tag of soft tissue. Rest of the soft tissue missing. Right great toe is dressed with bandage. Lower abdomen with thigh is fully exposed. Left thigh is exposed 11 inch below the pupil symphyses. Private missing. Lower abdomen is (illegible) of all the soft tissue of abdominal wall upto 13 inch above the pupil symphyses exposing internal organs. Prostate gland seen. No injury seen in exposed organs and intestines. As the body is swollen and advanced stage of decomposition, (illegible) layer of skin is peeled off and underlying dermal part of skin is blackish. The following anti mortem wounds are present on the body :
(1) Incised Wound 2inchx1inchx1 ½ inch deep present on the left side of neck, 4 inch above sternoclavicular joint placed horizontal;
(2) A semi circular incised wound 4 inch x 2 inch x bone deep chipping the bone on left temporal parietal part of scalp present;Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32
NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 26 Cr.A. Nos.2025/2009 and 2050/2009 (3) Horizontal incised wound over left temporal parietal part of scalp 3 inch x ½ inch x brain deep (illegible) exposing the damaging the brain tissue. There is loss of brain tissue from that area ;
(4) Right ear is missing completely exposing a wound of about 4 inch x 3 inch muscle deep. The margins and base of wound is moth eaten irregular (illegible) maggots. Right eye ball missing and left shrunken.
On internal examination, cut fracture of left temporo occipital bone ruptured at wound site brain and spinal cord was injured and missing at the wound site Both lungs were in advanced stage of pulverization due to petrification Liver in early stage of petrification spleen pulverized due to petrification Kidney in early stage of petrification Cause of death As far finding in and over the body of Sagar Singh son of Guman Singh. We all the autopsy member could reach on the opinion that the cause of death seems to be coma associated with shock due to head injury.
Time passed since death is more than 5 days the time of P.M.. However, viscera and bone has been preserved to facilitate the further investigation and D.N.A. testing.
49. Dr. Suresh Jain (P.W.8) in his examination in chief had stated that the duration of death was more than 5 days, but the Counsel for the Appellant, in the cross-examination got further clarified and this witness stated that the time of death may be 6-12 days.
50. The deceased Sagar Singh was abducted on 17-11-2007 and the dead body was recovered in the evening of 27-11-2007 i.e., after 10 days. According to Dr. Suresh Jain (P.W. 8), the death could have occurred within 6-12 days. Therefore, it is clear that there appears to be close proximity between the date of abduction of Sagar Singh and his death.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 27 Cr.A. Nos.2025/2009 and 2050/2009
51. Furthermore, the death of Sagar Singh was homicidal in nature and one incised wound was found on his neck, and two incised wounds were found on his left temporo parietal part of scalp. Thus, it is held that the time of death of Sagar Singh as narrated by Doctor Suresh Jain (P.W.8) establishes close proximity between abduction and time of death.
52. Accordingly, it is held that the circumstance of Last Seen Together has been proved by the prosecution beyond reasonable doubt. Recovery of Dead body of Sagar Singh
53. According to the prosecution case, the dead body of Sagar Singh was recovered on the discovery memo, Ex. P.11 made by co-accused Sunil Vishwakarma and the recovery memo of dead body is Ex. P.13. It is not out of place to mention here that Sunil Vishwakarma has already withdrawn his appeal. Therefore in absence of any challenge to the circumstance of recovery of dead body on the memorandum of Sunil Vishwakarma, a detailed discussion in that regard is not necessary. It is suffice to mention here that the death of Sagar Singh was homicidal and there was close proximity in the incident of abduction and time of death. Identification of dead body
54. Although Guman Singh (P.W.1) had identified the dead body of his son Sagar Singh, but in order to avoid any confusion, the police also got the D.N.A. test. Dr. B.B. Singh (P.W. 22) had taken the blood sample of Guman Singh (P.W.1) and his wife Ragini Singh. This witness has stated that on 5-1-2008, he had taken the blood sample of Guman Singh (P.W.1) and blood Sample of Ragini Singh was taken on 2-1-2008. The identification form of Guman Singh (P.W.1) and Ragini Singh were also filled. This witness was not effectively cross-examined by the defence.
55. The D.N.A. report is Ex. P.55 and according to this report, Smt. Ragini Singh was the biological mother of the deceased and Guman Singh Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 28 Cr.A. Nos.2025/2009 and 2050/2009 (P.W.1) was the biological father of deceased. Dr. Anil Kumar Singh (P.W. 35) who had conducted the D.N.A. test was cross-examined in detail about the medical science pertaining to D.N.A. He further stated that except red blood cell, D.N.A. is found in every part of body of a person. The bone of deceased was sent for D.N.A. test. Dry blood collected on filter is generally sent for conducting D.N.A. test. This witness denied that the dry blood of Guman Singh (P.W.1) and Smt. Ragini Singh was not sent on filter paper. Thus, it is clear that the dead body which was recovered on the memorandum of Sunil Vishwakarma was that of Sagar Singh, son of Guman Singh (P.W.1).
Whether Dead body was recovered from open space or not, if yes then its effect?
56. From the spot map, Ex. P.6, it is clear that the dead body was found at a distance of 2 ½ km from forest track. From the spot map, Ex. P.6, it is clear that the dead body was lying in bushes. Guman Singh (P.W.1) is the father of the deceased. He has stated that on 27-11-2007, he was informed by the police that one dead body has been found in the forest area, therefore, in the morning he has to go for identification. It was further stated that the area where dead body was lying was not motorable and they went to the spot by walking.
57. Awadhesh Tiwari (P.W.3) has stated that he went to the forest along with R.K. Tiwari, S.I. Investigating officer, wrote inquest report after the dead body was recovered. He stayed back in the forest area for the whole night and came back to the police station in the morning along with inquest report.
58. Sandeep Yadav (P.W.6) is also a witness of memorandum of Sunil Vishwakarma Ex. P.11 as well as recovery of dead body. He stated that initially they went on vehicle and after reaching a particular spot, Sunil Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 29 Cr.A. Nos.2025/2009 and 2050/2009 Vishwakarma informed that the vehicle cannot go to the place of incident and accordingly, they walked for about 7-8 Km.s and ultimately found the dead body. Mukesh Mishra (P.W.20) has also stated that there was a rumor in the village that a dead body has been recovered, therefore, out of curiosity, he also went to the spot. The dead body was lying about 2 ½ kms away from forest track.
59. Ramkumar Tiwari (P.W.23) is the investigating officer who had recovered the dead body. He has stated that Sunil Vishwakarma showed the place where dead body was lying. The said space was 2 ½ Kms away from village Kalibarah. The recovery memo, Ex. P.13 was prepared. Merg Intimation Ex. P. 9 was written. Since, it was night, therefore, the dead body was not shifted and it remained on the spot. He stated in the cross- examination, that he along with his staff stayed back on the spot for the whole night. Since, they had not taken food with them, therefore on information given on wireless set, the arrangement of food was made by police personnel as well as by the villagers. He further stated that in the Lash Panchnama Ex. P.1, the opinion of the panchas that the possibility of death is due to injury on neck is mentioned but it was clarified by this witness, that it was the opinion of the Panchas. Since, the dead body was in a state of decomposition, therefore, he had requested for DNA test to establish the identity of the deceased. It was denied that incised wound on the neck could have been caused by bite mark of a wild animal. Thus, it is clear that the place where the dead body was found was not easily accessible.
60. The Supreme Court in the case of State of H.P. v. Jeet Singh, reported in (1999) 4 SCC 370 has held as under :
26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 30 Cr.A. Nos.2025/2009 and 2050/2009 of the articles was made from any place which is "open or accessible to others". It is a fallacious notion that when recovery of any incriminating article was made from a place which is open or accessible to others, it would vitiate the evidence under Section 27 of the Evidence Act. Any object can be concealed in places which are open or accessible to others. For example, if the article is buried in the main roadside or if it is concealed beneath dry leaves lying on public places or kept hidden in a public office, the article would remain out of the visibility of others in normal circumstances. Until such article is disinterred, its hidden state would remain unhampered. The person who hid it alone knows where it is until he discloses that fact to any other person. Hence, the crucial question is not whether the place was accessible to others or not but whether it was ordinarily visible to others. If it is not, then it is immaterial that the concealed place is accessible to others.
27. It is now well settled that the discovery of fact referred to in Section 27 of the Evidence Act is not the object recovered but the fact embraces the place from which the object is recovered and the knowledge of the accused as to it (Pulukuri Kottaya). The said ratio has received unreserved approval of this Court in successive decisions. (Jaffar Hussain Dastagir v.
State of Maharashtra, K. Chinnaswamy Reddy v. State of A.P., Earabhadrappa v. State of Karnataka, Shamshul Kanwar v. State of U.P., State of Rajasthan v. Bhup Singh.)
61. The Supreme Court in the case of Yakub Razak Memon Vs. State of Maharashtra reported in (2013) 13 SCC 1 has held as under :
1707. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar, this Court held : (SCC p. 629, para 22) "22. In the present case the grinding stone was found in tall grass. The pants and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had remained unhampered. The respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also."
1708. In view of the above, it cannot be accepted that a recovery made from an open space or a public place which Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 31 Cr.A. Nos.2025/2009 and 2050/2009 was accessible to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that, it will be the accused alone who will be having knowledge of the place, where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage.
62. Accordingly, it is held that the prosecution has proved that recovery of dead body on the memorandum made by co-accused Sunil Vishwakarma. Although the place from the dead body was recovered is an open space, but it was not easily accessible for general public. Recovery of articles belonging to the deceased from the possession of Appellant Mukesh Tiwari Seizure of Silver Chain with Gold Locket
63. Atin Tiwari (P.W. 13) is one of the seizure witness. He has stated that the memorandum of appellant Mukesh Tiwari, Ex. P.22 was recorded and accordingly, the police had seized one Mala of Rudraksh from the bushes near Hiran River. The seizure memo is Ex. P.23 which bears his signatures at A to A. The Mala of Rudraksh was Ek Mukhi. On the next day, they went to Niwas Road, and one silver chain on which S was engraved, was seized from the house of Nandlal Soni. The seizure memo is Ex. P.24 and his signatures are at A to A. He was cross examined. In cross-examination he admitted that his house is in front of the house of Guman Singh (P.W.1). He had never appeared as a witness in any case. They went to different places in search of Sagar Singh, except the places from where the articles were seized.
64. Sardar Singh (P.W.15) has stated that Appellant Mukesh Tiwari had given a memorandum Ex. P.22 and accordingly, Mukesh Tiwari, took out one Ek Mukhi Rudraksh Mala from the bushes near the Hiran River Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 32 Cr.A. Nos.2025/2009 and 2050/2009 which was seized by seizure memo Ex. P.23. On the next day, the police party along with witnesses including this witness went to the house of Nandlal Soni. Search Panchnama Ex. P.25 was prepared. The appellant Mukesh Tiwari, took out a silver chain having one gold locket from a box which was seized vide seizure memo Ex. P.24.
65. However, the seized articles were not got identified from the witnesses in the Court.
66. Bundeldhar Dwivedi (P.W. 18) has stated that on 6-12-2007, he was transferred to Police Station Kotwali. He was instructed to search out the accused persons. He received an information from the informers that Mukesh Tiwari is in Rewa along with co-accused Bhawani Dubey. Accordingly, the police party went to Rewa. On 7-12-2008 (the date as mentioned in deposition sheet but the arrest memo of Mukesh Tiwari, Ex. P.32 disclose the date of arrest as 8-12-2007), when they reached Rewa, then they came to know that the accused persons have already left for Allahabad. Accordingly, they went to Allahabad and came to know that the appellant Mukesh Tiwari has already gone back to Rewa. While they were coming back from Allahabad, they saw Mukesh Tiwari and Bhawani Dubey near culvert in village Kathra. The police party chased them. Mukesh Tiwari and Bhawani Dubey took out their country made pistol. However, Mukesh Tiwari and Bhawani Dubey were arrested with ammunition. Loaded country made pistols were seized from Mukesh Tiwari and Bhawani Dubey vide seizure memo Ex. P.30 and P.31. Mukesh Tiwari was arrested vide arrest memo Ex. P.32 and one Nokia mobile and three extra SIMs were found in the possession of Mukesh Tiwari. A memorandum of Mukesh Tiwari, Ex. P.34 was recorded. Mukesh Tiwari also informed that he has thrown one Rudraksh mala near Hiran River, which was seized later on and one sword was seized from the Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 33 Cr.A. Nos.2025/2009 and 2050/2009 forest area vide seizure memo Ex. P.35. Thereafter, on 12-12-2007, on the disclosure made by Mukesh Tiwari, the one silver chain with gold locket was seized from the house of Nandlal Soni, vide seizure memo Ex. P.24. The search memo, Ex. P.25 of the house of Nandlal Soni was prepared by this witness. Since, the article was not produced before the Court, therefore, the further examination was deferred and on the next date, the silver chain was identified by this witness as Article 1. In cross- examination, this witness stated that he had received an information that Mukesh Tiwari and Bhawani Dubey are in Rewa and accordingly, they left for Rewa at about 11 P.M. in the night. The informer had informed that Mukesh Tiwari and Bhawani Dubey were seen in the bus stand at about 9- 9:15 A.M. The police party reached Rewa about 5 hours after their departure from Katni. They went to bus stand and tried to search out the appellant. When the police party could not get any information, then he again contacted the informer who assured that he would revert back after collecting information. About one hour thereafter, the informer informed that the appellant has already left for Allahabad. After having break fast, the police party left for Allahabad. The informer also informed, that the appellant Mukesh Tiwari and Bhawani Dubey have gone to attend the marriage of Sonu Nishad. Informer also informed that Sonu Nishad resides in Keetganj area. After reaching Allahabad, they did not take help of local police. After reaching Allahabad, they again contacted the informer who assured to revert back after collecting information. Therefore, the police party took rest awaiting reply from informer and in the meanwhile they did not try to search out the house of Sonu Nishad. In the next morning, the police party was informed by informer that appellant Mukesh Tiwari and Bhawani Dubey have already started from Allahabad for Rewa. Accordingly, the police party also started for Rewa. After they Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 34 Cr.A. Nos.2025/2009 and 2050/2009 crossed village Kathra, they saw the appellant Mukesh Tiwari and Bhawani Dubey were going by walking. They had seen the accused persons from a distance of 30-40 fts. After noticing the police party, the appellant Mukesh Tiwari and Bhawani Dubey pointed country made pistol towards police party. Both the accused were arrested and it took about 1 hour for seizure. They left for seizure of sword from the same place and they took about 4-5 hours to seize the sword. Since, it was night, and recovery of other articles was not possible, therefore, they came back to police station. This witness also stated that since, he had seen the silver chain with gold locket by himself at the time of seizure, therefore, he has identified the same in the Court.
67. Thus, it is clear that although silver chain with gold locket was not got identified from the seizure witnesses Atin Tiwari (P.W.13) and Sardar Singh (P.W.15) in the Court, but the silver chain was got identified from Bundeldhar Dwivedi (P.W.18) in the Court. Merely because Bundeldhar Dwivedi (P.W.18) is a police personal, his evidence and identification of Silver Chain, Article 1 cannot be disbelieved. The Supreme Court in the case of Girja Prasad Vs. State of M.P. reported in (2007) 7 SCC 625 has held as under :
24. We are equally unable to uphold the contention of the learned counsel for the appellant that the trial court was right in not relying upon PW 1 Anup Kumar, the complainant and PW 10 S.K. Tiwari, Inspector of Special Police Establishment. The trial court, it may be stated, discarded the evidence of these two witnesses by laying down the following proposition of law:
"It goes without saying that Anup Kumar and Shri S.K. Tiwari were concerned only with the success of the trap and thus both these persons are interested witnesses. PW 10, Shri Tiwari is Inspector in Lokayukt Office therefore he is highly interested witness."Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32
NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 35 Cr.A. Nos.2025/2009 and 2050/2009
25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.
26. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half a century, in Aher Raja Khima v. State of Saurashtra, Venkatarama Ayyar, J. stated: (AIR p. 230, para 40) "40. ... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not a judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration."
(emphasis supplied)
27. In Tahir v. State (Delhi), dealing with a similar question, Dr. A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341, para 6) "6. ... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form the basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case."
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 36 Cr.A. Nos.2025/2009 and 2050/2009
68. Thus, it is clear that seizure of Silver Chain with gold locket was proved by the prosecution by cogent evidence.
69. It is not out of place to mention here that two memorandums of Mukesh Tiwari were recorded, i.e., 1st on 8-12-2007, Ex. P.34 and second on 11-12-2007, Ex. P.22. In his subsequent memorandum, he admitted that earlier he had given a wrong information with regard to silver chain. Seizure of Ek Mukhi Rudraksh Mala
70. As already pointed out, Atin Tiwari (P.W.13) and Sardar Singh (P.W.15) have stated about the seizure of Ek Mukhi Rudraksh Mala from the bushes near Hiran River. But this article was not got identified in the Court from Atin Tiwari (P.W.13) and Sardar Singh (P.W.15).
71. However, the prosecution examined Vinod Singh Baghel (P.W.30) who had recorded the second memorandum of Mukesh Tiwari Ex. P.22. On the disclosure made by Mukesh Tiwari, one Ek Mukhi Rudraksh Mala was seized from the bushes near Hiran River vide seizure memo Ex. P. 23 and the said Ek Mukhi Rudraksh Mala was marked as Article 33. In cross examination, this witness denied the suggestion, that Guman Singh (P.W.1) had brought the seized articles from market which were falsely shown as seized from appellant. This witness specifically stated that since, he had seized the articles, therefore, he has identified the same. Thus, it is clear that although Ek Mukhi Rudraksh Mala was not shown to Atin Tiwari (P.W.13) and Sardar Singh (P.W.15) in the Court, but the said article was identified by Vinod Singh Baghel (P.W.30) in the Court.
72. Therefore, the seizure of one Ek Mukhi Rudraksh Mala from the bushes near Hiran River on the disclosure made by Appellant Mukesh Tiwari is proved beyond reasonable doubt.
Identification of seized articles Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 37 Cr.A. Nos.2025/2009 and 2050/2009
73. Guman Singh (P.W.1) has identified the Ek Mukhi Rudraksh Mala and Silver Chain with gold locket. According to this witness, T-Shirt, Pant, one Rudraksh Mala, Ear ring and chain with gold socket were identified by him in Jain Dharamshala vide identification memo Ex. P.4.
74. For the time being we will consider the identification of Rudraksh Mala and chain with gold locket only because the aforesaid mentioned two articles were seized from the possession of appellant Mukesh Tiwari. Ear ring was recovered from the dead body, whereas the T-Shirt and pant were allegedly seized from co-accused Rakesh Choudhary, who has already withdrawn his appeal.
75. This witness was cross-examined by the appellant Mukesh Tiwari on the question of identification of articles.
76. This witness has stated that 5 pieces of each article were kept on the table. He had picked up the articles belonging to his son. However, the articles were not got identified from this witness in the Court.
77. Akhilesh Tiwari (P.W.17) had conducted the Test Identification Parade, Ex. P.4. In examination in chief, he stated that he was called by the police to conduct the identification of articles. When he reached Jain Dharmshala, he found that 5-5 articles were kept. Five T-shirts and 5 Trousers were kept, one Rudraksh Mala, one silver chain and one ear ring were kept. However, in cross-examination this witness has stated that five pieces of all the articles were kept on the table. In para 10 of his cross- examination, this witness has further made it clear that multiple pieces of all the articles were kept. No other important question was put to this witness, which may make the identification doubtful.
78. The identification of articles in the Court is the substantive piece of evidence and the identification parade held during the investigation is the corroborative piece of evidence. In the present case, Guman Singh Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 38 Cr.A. Nos.2025/2009 and 2050/2009 (P.W.1) was the best witness to identify the articles seized from the possession of Appellant Mukesh Tiwari, but as already held, the prosecution for the reasons best known to it, did not get the articles identified from Guman Singh (P.W.1) in the Court. Therefore, the substantive evidence with regard to identification is not available.
79. The Supreme Court in the case of Malkhan Singh Vs. State of M.P. reported in (2003) 5 SCC 746 has held as under :
7. It is trite to say that the substantive evidence is the evidence of identification in court. Apart from the clear provisions of Section 9 of the Evidence Act, the position in law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused persons, are relevant under Section 9 of the Evidence Act. As a general rule, the substantive evidence of a witness is the statement made in court. The evidence of mere identification of the accused person at the trial for the first time is from its very nature inherently of a weak character. The purpose of a prior test identification, therefore, is to test and strengthen the trustworthiness of that evidence. It is accordingly considered a safe rule of prudence to generally look for corroboration of the sworn testimony of witnesses in court as to the identity of the accused who are strangers to them, in the form of earlier identification proceedings. This rule of prudence, however, is subject to exceptions, when, for example, the court is impressed by a particular witness on whose testimony it can safely rely, without such or other corroboration. The identification parades belong to the stage of investigation, and there is no provision in the Code of Criminal Procedure which obliges the investigating agency to hold, or confers a right upon the accused to claim a test identification parade. They do not constitute substantive evidence and these parades are essentially governed by Section 162 of the Code of Criminal Procedure. Failure to hold a test identification parade would not make inadmissible the evidence of identification in court. The weight to be attached to such identification should be a matter for the courts of fact. In appropriate cases it may accept the evidence of identification even Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 39 Cr.A. Nos.2025/2009 and 2050/2009 without insisting on corroboration. (See Kanta Prashad v. Delhi Admn., Vaikuntam Chandrappa v. State of A.P., Budhsen v. State of U.P. and Rameshwar Singh v. State of J&K)
8. In Jadunath Singh v. State of U.P. the submission that absence of test identification parade in all cases is fatal, was repelled by this Court after exhaustive consideration of the authorities on the subject. That was a case where the witnesses had seen the accused over a period of time. The High Court had found that the witnesses were independent witnesses having no affinity with the deceased and entertained no animosity towards the appellant. They had claimed to have known the appellants for the last 6-7 years as they had been frequently visiting the town of Bewar. This Court noticed the observations in an earlier unreported decision of this Court in Parkash Chand Sogani v. State of Rajasthan wherein it was observed: (SCC pp. 522-23, para
11) "It is also the defence case that Shiv Lal did not know the appellant. But on a reading of the evidence of PW 7 it seems to us clear that Shiv Lal knew the appellant by sight. Though he made a mistake about his name by referring to him as Kailash Chandra, it was within the knowledge of Shiv Lal that the appellant was a brother of Manak Chand and he identified him as such. These circumstances are quite enough to show that the absence of the identification parade would not vitiate the evidence. A person, who is well known by sight as the brother of Manak Chand, even before the commission of the occurrence, need not be put before an identification parade in order to be marked out. We do not think that there is any justification for the contention that the absence of the identification parade or a mistake made as to his name, would be necessarily fatal to the prosecution case in the circumstances."
The Court concluded: (SCC pp. 523-24, para 15) "15. It seems to us that it has been clearly laid down by this Court in Parkash Chand Sogani v. State of Rajasthan that the absence of test identification in all cases is not fatal and if the accused person is well Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 40 Cr.A. Nos.2025/2009 and 2050/2009 known by sight it would be waste of time to put him up for identification. Of course if the prosecution fails to hold an identification on the plea that the witnesses already knew the accused well and it transpires in the course of the trial that the witnesses did not know the accused previously, the prosecution would run the risk of losing its case."
9. In Harbajan Singh v. State of J&K though a test identification parade was not held, this Court upheld the conviction on the basis of the identification in court corroborated by other circumstantial evidence. In that case it was found that the appellant and one Gurmukh Singh were absent at the time of roll-call and when they were arrested on the night of 16-12-1971 their rifles smelt of fresh gunpowder and that the empty cartridge case which was found at the scene of offence bore distinctive markings showing that the bullet which killed the deceased was fired from the rifle of the appellant. Noticing these circumstances this Court held: (SCC p. 481, para 4) "4. In view of this corroborative evidence we find no substance in the argument urged on behalf of the appellant that the Investigating Officer ought to have held an identification parade and that the failure of Munshi Ram to mention the names of the two accused to the neighbours who came to the scene immediately after the occurrence shows that his story cannot be true. As observed by this Court in Jadunath Singh v. State of U.P. absence of test identification is not necessarily fatal. The fact that Munshi Ram did not disclose the names of the two accused to the villagers only shows that the accused were not previously known to him and the story that the accused referred to each other by their respective names during the course of the incident contains an element of exaggeration. The case does not rest on the evidence of Munshi Ram alone and the corroborative circumstances to which we have referred to above lend enough assurance to the implication of the appellant."
80. Thus, it is held that although the seizure of Ek Mukhi Rudraksh Mala and Silver Chain with gold locket has been proved by the Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 41 Cr.A. Nos.2025/2009 and 2050/2009 prosecution, but the prosecution has failed to prove that the aforesaid articles belonged to the deceased, therefore, it is held that identification of aforesaid articles is not proved.
Seizure of Sword and F.S.L. report
81. Bundeldhar Dwivedi (P.W. 18), Shailendra are the seizure witnesses of sword whereas A.V. Singh (P.W.21) had seized the sword, on the memorandum, Ex. P.34 of Mukesh Tiwari. Shailendra, another seizure witness was not examined by the prosecution. The sword, Article 10 was seized vide seizure memo Ex. P.35. In the seizure memo, blood stains on the sword were mentioned. Similarly, in memo dated 27-12-2017, Ex. P. 52, which was sent by S.P. Katni to Director, F.S.L., Sagar, it is mentioned that sword (Article J) is blood stained. However, in the F.S.L. report, Ex. 53, it is mentioned that no blood was found on Sword which was seized from Mukesh Tiwari. Therefore, the seizure of sword from the possession of appellant Mukesh Tiwari, cannot be said to be the seizure of weapon of offence.
82. Thus, it is clear that the prosecution has proved that the deceased Sagar Singh was abducted by Mukesh Tiwari, and 4 other co-accused persons namely Sunil Vishwakarma, Shrichand Kori, Bhawani Dubey and Rakesh Choudhary, and thereafter the dead body of Sagar Singh was recovered on the memorandum made by co-accused Sunil Vishwakarma. The death of Sagar Singh was homicidal in nature. Although the seizure of Ek Mukhi Rudraksh Mala and one Silver chain with gold locket from the possession of appellant Mukesh Tiwari has been proved by the prosecution, but in absence of identification, it cannot be held that aforesaid two articles belonged to the deceased. Further more, in absence of blood on the sword, Article 10, it cannot be said that the weapon of offence was recovered from the possession of Appellant Mukesh Tiwari.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 42 Cr.A. Nos.2025/2009 and 2050/2009 Whether Mobile and three SIMs were seized from the possession of appellant Mukesh Tiwari?
83. Bundeldhar Dwivedi (P.W.18) and A.V. Singh (P.W.21) have stated that when Mukesh Tiwari was arrested, one country made pistol with one live cartridge was seized vide seizure memo Ex. P.30. The memorandum of Mukesh Tiwari Ex. P.34 was recorded and one sword was seized vide seizure memo Ex. P.35. However, Bundeldhar Dwivedi (P.W.18) has also stated that one mobile phone of Nokia company and three SIMs i.e., one of Airtel Company and two SIMs of Idea company were also recovered. But no seizure memo of Mobile Phone and three SIMs was prepared. Why that was not done has not been clarified by the prosecution.
84. Similarly, A.V. Singh (P.W.21) has also stated that when Mukesh Tiwari was arrested on 8-12-2007, one mobile phone with three extra SIMs were recovered. However, no seizure memo was prepared. Why A.V. Singh (P.W.21) did not prepare the seizure memo of mobile Phone and three extra SIMs recovered from the possession of Mukesh Tiwari, has not been explained. Thus, the prosecution has failed to prove that mobile phone and three SIMs i.e., one of Airtel Company and two of Idea Company were recovered from the possession of Mukesh Tiwari.
85. But, since, the allegation of abduction and circumstance of Last Seen Together has been proved by the prosecution beyond reasonable doubt, therefore, the conviction of the appellant Mukesh Tiwari for offence under Sections 120-B, 364/120B, 365/120B, 302/120B and 201/120B of IPC is hereby affirmed.
86. According to Bundeldhar Dwivedi (P.W. 17) and A.V. Singh (P.W.21) one country made pistol was seized from the possession of Appellant Mukesh Tiwari. G. Kuzoor (P.W. 7) has proved the sanction for Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 43 Cr.A. Nos.2025/2009 and 2050/2009 prosecution under Section 25 and 27 of Arms Act. Tilak Singh (P.W.12) is the armorer who had submitted the ballistic report, Ex. P.17. Tilak Singh (P.W.12) was not cross-examined at all.
87. Thus, it is clear that the prosecution has proved the seizure of country made pistol from the possession of Mukesh Tiwari, therefore, his conviction under Section 25 and 27 of Arms Act is also upheld. Cr.A. No. 2025 of 2009 Deepak Tiwari
88. Deepak Tiwari is the nephew of co-accused Mukesh Tiwari and son of co-accused Sunil Tiwari. Neither he was named in the incident of abduction, nor there is any other evidence of Last Seen Together. Further, no seizure of any incriminating article was made from his possession. Deepak Tiwari was arrested on 6-1-2008 vide arrest memo Ex. P. 37, and one mobile phone containing No. 9977637710 was seized from his possession vide seizure memo Ex. P.38. Although the prosecution has tried to show that the appellant Deepak Tiwari had talked to co-accused Mukesh Tiwari on 17-11-2007, but as this Court has already held that the prosecution has failed to prove the seizure of mobile phone and three SIMs from Mukesh Tiwari, therefore, even if the appellant Deepak Tiwari had talked on mobile No.s 9981880925 and 9300762147 on 17-11-2007, still it cannot be held that Deepak Tiwari had talked to Mukesh Tiwari. Even otherwise, Mukesh Tiwari is the real uncle of appellant Deepak Tiwari. In para 133 of impugned judgment it was also held by Trial Court that Deepak Tiwari had talked on mobile no. 9981880925 on 2-11-2007. Since, Deepak Tiwari is the nephew of Mukesh Tiwari, therefore, telephonic talk with Mukesh Tiwari prior to the offence of abduction cannot be a conclusive proof that Deepak Tiwari was a part of conspiracy. Further more, the prosecution has failed to prove that SIM no. 9981880925, 0754386176 and 9907562943 were seized from Mukesh Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 44 Cr.A. Nos.2025/2009 and 2050/2009 Tiwari. Even no evidence was led to show that in whose names, those SIMs were issued.
89. Therefore, the conviction of Deepak Tiwari for offence under Sections 120-B, 364/120B,265/120B,302/120B and 201/120B of IPC cannot be upheld. Accordingly, it is set aside. The Appellant Deepak Tiwari is acquitted of all the charges.
Appellant Sunil Tiwari
90. Sunil Tiwari, is the father of Deepak Tiwari and real brother of appellant Mukesh Tiwari.
91. Sunil Tiwari was arrested on 21-11-2007 and one mobile phone containing number 9977637710 was seized from his possession.
92. Sunil Tiwari was neither involved in abduction of Sagar Singh, nor there is any evidence of Last Seen Together. No incriminating article was seized from the possession of Sunil Tiwari. The only circumstance is with regard to conspiracy.
93. In para 133 of the impugned judgment, the Trial Court has held that the appellant Sunil Tiwari had talked to appellant Mukesh Tiwari on 3-11- 2007, and on 17-11-2007. Since, the prosecution has failed to prove that three SIMs i.e., No.8991930607048752033, 8991786707078757808 and 8991890110011120637 were seized from Mukesh Tiwari, therefore, it is held that the prosecution has failed to prove that Sunil Tiwari was in touch with Mukesh Tiwari. Furthermore, the prosecution has not proved that in whose name(s) three SIMs i.e., No.8991930607048752033, 8991786707078757808 and 8991890110011120637 were issued. Since, Sunil Tiwari is the real brother of Mukesh Tiwari, therefore, even if any talk had taken place between them, than in absence of any other evidence, it cannot be held that the appellant Sunil Tiwari had hatched conspiracy with Mukesh Tiwari and others to abduct and kill Sagar Singh. Therefore, Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 45 Cr.A. Nos.2025/2009 and 2050/2009 the conviction of Sunil Tiwari for offence under Sections 120-B, 364/120B,265/120B,302/120B and 201/120B of IPC cannot be upheld. Accordingly, it is set aside. The Appellant Sunil Tiwari is acquitted of all the charges.
Question of Sentence in respect of Appellant Mukesh Tiwari
94. Since, none had appeared on behalf of Appellant Mukesh Tiwari, therefore, this Court considered the question of sentence on its own. The minimum sentence for offence under Section 302 of IPC is Life Imprisonment. Therefore, this Court is of the considered opinion, that no interference is required on the question of sentence. Accordingly, the sentence awarded by Trial Court for offence under Sections 120-B, 364/120B, 365/120B, 302/120B and 201/120B of IPC and under Section 25-27 of Arms Act is hereby affirmed. All the sentences shall run concurrently.
Conclusion
95. Ex-Consequenti, the Judgment and Sentence dated 13-10-2009 passed by 2nd Addl. Judge to the Court of Addl. Sessions Judge, Katni in S.T. No.42/2008 in respect of Appellant Mukesh Tiwari is hereby affirmed. However, the same is set aside in respect of Appellant Sunil Tiwari and Deepak Tiwari.
96. The appellant Deepak Tiwari is on bail. His bail bonds and surety bonds are hereby discharged. He is no more required in the present case.
97. The appellant Sunil Tiwari was granted bail. However, it appears that he did not appear before the Registry of this Court and accordingly by order dated 12-9-2012 and 15-9-2014, his bail bonds were cancelled. But thereafter, it appears that he was not arrested and was not produced in this case. Since, this Court has already acquitted the Appellant Sunil Tiwari, therefore, it is held that he is no more required in the present case.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 46 Cr.A. Nos.2025/2009 and 2050/2009
98. So far the Appellant Mukesh Tiwari is concerned, it is submitted by Counsel for State that the Appellant Mukesh Tiwari was also convicted in S.T. 101/200, decided by 2nd Addl. Sessions Judge, to the Court of Addl. Sessions Judge, Katni for offence under Section 147,148,302/149 of IPC and was sentenced to undergo the Life Imprisonment. His Criminal Appeal No. 2049 of 2009 was also dismissed by High Court by order dated 26-2-2018. Since, the Appellant Mukesh Tiwari has been awarded Life Imprisonment twice, therefore, in the light of circular dated 22-9-2022 he not is entitled for remission. Thus, it is clear that appellant Mukesh Tiwari is in jail. Therefore, he shall undergo the remaining jail sentence.
99. Let a copy of this order be immediately sent to the Trial Court along with its record for necessary information and compliance.
100. Cr.A. No. 2025 of 2009 filed by Sunil Tiwari and Deepak Tiwari is allowed whereas Cr.A. No. 2050 of 2009 filed by Mukesh Tiwari is hereby Dismissed.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
Arun*
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 04-09-2024
19:10:32