Madhya Pradesh High Court
Sadan Gond vs The State Of Madhya Pradesh on 10 October, 2017
Bench: H.P. Singh, Rajeev Kumar Dubey
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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.2254/2006
Sadan Gond
V.
The State of M.P.
=================
Ms. Durgesh Gupta and Ms. Pratibha Mishra, learned counsel for the
appellant.
Mr. Y.D. Yadav, learned Government Advocate for the
respondent/State.
Mohd. Siddique, learned counsel appointed as amicus curiae.
PRESENT:
HON'BLE SHRI JUSTICE H.P. SINGH
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
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JUDGMENT
(10/10/2017) As per :- Rajeev Kumar Dubey, J This criminal appeal has been filed against the judgment dated 13/10/2006 passed by Ist Additional Session Judge, Betul in ST.No.108/2005, whereby he found the appellant guilty for the offences punishable under Sections 302, 376(2)/511, 363 and 366 of the IPC and sentenced him to life imprisonment with fine of Rs.5,000/-, R.I. for seven years with fine of Rs.50,000/-, R.I. for five years with fine of Rs.3,000/- and R.I. for three years with fine of Rs.3,000/- respectively with default stipulation.
2. Brief facts of the case are that on 18/01/05 at 12:00 AM Sugantibai (PW/1) resident of Krishna Nagar, Badora, District Betul lodged the report (Ex.P/14) at Police Station Betul Bazar averring that at 9:00 A.M. she had gone for labour work, leaving her daughters Nisha -:2:- and "Deceased A" (name and identity of the "Deceased A" is not disclosed as imposed by law contained in section 228A of IPC) at home and when she returned in the noon, both of her daughters were at home. After lunch, she went to work again. Thereafter, when she returned home at 6:00 P.M, her elder daughter Nisha was at home and preparing food while "Deceased A" was not at home. On that, she went to the field of Ramdeen Rathore in search of her daughter "Deceased A", but she did not find anyone. Thereafter, she saw the appellant, playing with her daughter "Deceased A". On that she called the prosecutrix, but she did not come. She then returned back home and some time later again went to appellant Sadan's house, but she did not find either "Deceased A" or appellant Sadan there. Then she searched her, but did not find her. She doubted that appellant Sadan would have taken her somewhere. On that report Police Inspector LR. Kohli, (PW/11) registered Crime No.10/05 for the offence punishable under Section 363, 366, 376(2)(f), 302 of the IPC and investigated the matter. Next day on 19/01/05 in the morning Nathuram (PW/7) saw the dead body of "Deceased A" lying along the road (NH-69) side at Kishan Malviya's field and informed Sugantibai (PW/1). Then, Sugantibai (PW/1) again informed the police about the same. On that LR. Kohli, (PW/11) went to the spot and prepared spot map (Ex.P/16). He also prepared an inquest report of the dead body of "Deceased A" in the presence of panch witnesses and sent the dead body for postmortem to District Hospital Betul, where Dr. Basant Srivastava (PW/4) conducted autopsy of the dead body of "Deceased A" and gave postmortem report (Ex.P/3) and also prepared the slides of her vaginal swab, took her blood sample and also seized her clothes from her dead body and sent all the items in six separate sealed packets through constable Rajkumar (PW/8) to P.S. Betul Bazar. There Head Constable Dhanraj seized those packets from the possession of Rajkumar (PW/8) and prepared seizure memo (Ex.P/11). On 19/01/05 LR. Kohli, (PW/11) arrested the appellant and -:3:- prepared arrest memo (Ex.P/1) and on the information of appellant seized underwear of the "Deceased A", slippers and shawl of appellant from Ramdeen Rathore's field and prepared information memo (Ex.P/9) and seizure memo (Ex.P/10). Thereafter, he sent appellant to District Hospital, Betul for medical examination where Dr. Basant Srivastava (PW/4) examined appellant and gave the medical report (Ex.P/3). He also took the sample of appellant's hand's nails, his blood sample and prepared slide of his semen and after preservation of that samples sent the same to P.S. Betul Bazar, through Constable Sitaram (PW/3), which was seized by the LR. Kohli (PW/11) from his possession and prepared seizure memo (Ex.P/15). He also recorded the case diary statements of Sugantibai (PW/1), Ku.Nisha (PW/2), Krishna Baraskar (PW/6), Nathuram Gond (PW/7), and Pintu @ Premraj (PW/10). After completion of investigation, Police filed charge-sheet against the appellant before Judicial Magistrate, First Class, Betul, who committed the case to the Court of Sessions. On that S.T.No.108/05 was registered.
3. Learned Ist Additional Sessions Judge framed charge against the appellant for the offence punishable under Sections 363, 366, 376(2)(f), 302 of the IPC. Appellant took the defence that he is innocent and has falsely been implicated in the case. Prosecution produced as many as 11 witnesses to prove his case. However, learned I Additional Sessions Judge after trial found the appellant guilty for the offence punishable under Section 302, 376(2)/511 and 366 of the IPC and sentenced him as aforesaid. Being aggrieved by the impugned judgment, appellant has filed this Criminal Appeal.
4. Learned counsel for the appellant submitted that there is no eyewitness of the incident. The prosecution case is solely based on circumstantial evidence. It is settled that when there is no direct evidence of the commission of offences, the case rests entirely on circumstantial evidence, all the circumstances from which an inference -:4:- of guilt is sought to be drawn must be cogently and firmly established. While in this case no chain of circumstances has been proved by the prosecution beyond reasonable doubt against appellant. Learned trial Court merely on the ground that the accused was last seen along with the "Deceased A" in the evening, found appellant guilty for the murder of "Deceased A", while only on that ground appellant cannot be found guilty for the murder of "Deceased A" in absence of other direct evidence. Prosecution produced the relative of the deceased as main witnesses. No independent witness has supported the case of the prosecution. There are many contradictions and improvements in the statements of prosecution witnesses, so no reliance can be placed on their statements. Learned trial Court without appreciating these facts wrongly found appellant guilty for the offences. In this regard learned counsel of the appellant also placed reliance on a judgment of Hon'ble Apex Court passed in the case of Subhash Chand Vs. State of Rajasthan, (2002) 1 SCC 702, wherein Hon'ble Apex Court has held that the Court has to proceed to examine each of the pieces of incriminating circumstantial evidence so as to find out if each one of the circumstantial evidence is proved individually and whether collectively it forges such a chain of incriminating circumstances as would fasten the guilt on the accused beyond any shadow of reasonable doubt. None of the pieces of evidence relied on as incriminating, by the trial court and the High Court, can be treated as incriminating pieces of circumstantial evidence against the accused. Though the offence is gruesome and revolts the human conscience but an accused can be convicted only on legal evidence and if only a chain of circumstantial evidence has been so forged as to rule out the possibility of any other reasonable hypothesis accepting the guilt of the accused. "Human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions". Between may be true and must be true there is a long distance to travel which must be covered by clear, cogent and -:5:- unimpeachable evidence by the prosecution before an accused is condemned a convict.
5. On the other hand learned counsel appearing for the respondent/State submitted that there is ample evidence on record to prove the guilt of the appellant. Learned trial Court did not commit any mistake in finding the appellant guilty for the aforesaid offence.
6. Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellant under Sections 363, 366, 376(2)/511 and 302 of IPC is liable to be set aside for the reasons stated in the memo of appeal and argued before this Court.
7. On the point whether between 6 p.m. of 18/01/05 to 7 a.m. of 19/01/05 "Deceased A" died due to asphyxia by smothering (kill someone by covering their nose and mouth so that they suffocate) and her dead body was found lying along the roadside (NH-69) at Kishan Malviya's field, Sugantibai (PW/1) mother of the deceased deposed that on the date of incident at 6:00 PM when she returned to her house after work, her daughter"Deceased A" was playing. Thereafter, when at 7:30 P.M. she went to take her daughter she saw that her daughter "Deceased A" was not there. On searching, she could not find her. On the very next day at about 6-7:00 am she found dead body of her daughter lying in front of Maida Mill. Blood was oozing out from her nostril. Her statement is also corroborated from the statement of Nathuram (PW/7) who also deposed that in the morning when he was going to answer the call of nature, on the way he saw dead body of a girl lying on the roadside. The girl did not wear frock and underwear and was naked, blood was coming out from the side of her lips. LR. Kohli (PW/11) in his statement deposed that on 18/01/05 he was posted as Inspector at Police Station Betul Bazar, that day Sugantibai lodged the report (Ex.P/14) about missing of her daughter. On the report he registered Crime No.10/05 for the offence punishable under Section 363, 366 of -:6:- the IPC against the appellant. On 19/01/05 Sugantibai again came to the Police Station and informed that the dead body of her daughter is lying near the road. On that he went on the spot i.e. one k.m. away towards East from Badora square, where the dead body of the "Deceased A"
was lying in a field. He prepared spot map (Ex.P/16) and also prepared inquest report of the dead body of the "Deceased A" before panch witnesses and found that the prosecutrix died due to asphyxia and before her death somebody tried to rape her. His statement is also corroborated from the inquest report (Ex.P/7), also proved by its witness Shivlal (PW/5) and Nathuram (PW/7) and spot map (ExP/16).
8. Dr. Basant Shrivastava (PW/4) deposed that on 19/01/05 he was posted as Medical Officer at District Hospital, Betul. On that day on the application of Constable Rajkumar he conducted postmortem of the dead body of "Deceased A". On examination he found that the dead body is of a female child aged about six-seven years. Rigor mortis was present in all the limbs. Her face, lips and nails ecchymosed, blood mixed froth was coming out from her nostrils, eyes were congested. He further deposed that she found following external injuries on her body.
1. Multiple semi lunar abrasion (nail mark) with blood clots each size 4 m.m. present over right upper and lower lid of eye, nose tip, nasal bridge, left lower jaw and both earlobes.
2. Nail mark abrasion around neck size 4 mm.
3. Abrasion size 1 cm X 1/2 cm with blood clot on left buttock.
The injuries Nos. 1 & 2 were caused by nail scratch and injury No.3 was caused by hard and blunt object.
9. He further deposed that on the examination of genital organ of the "Deceased A" he found that her hymen was ruptured in 5 m.m. diameter. Vagina admits one little finger with strains. Duration of death was between 3-18 hours from the postmortem. In her opinion the deceased died due to asphyxia and mode of death was smothering. In this regard his statement is also supported from the postmortem report (Ex.P/3).
-:7:-10. There is no significant contradiction in the statements of the said witnesses on that point. So there is no reason to disbelieve the statements of aforesaid witnesses on that point. From the statement of these witnesses it appears that "Deceased A" was missing since 18/01/05 from around 7:00 pm and her dead body was found on next the day i.e. 19/01/05 at around 7:00 am and from the statement of Dr. Basant Shrivastava (PW/4) it is also proved that "Deceased A" died due to asphyxia which was caused by smothering. He also stated that duration of her death was between 3 to 18 hours from the postmortem conducted by this witness at 11:15 am on 19/01/05 which also shows that "Deceased A" died between 7:00 p.m. to 7:00 a.m. of 18-19/01/05. Although Dr. Basant Shrivastava (PW/4) did not depose that death of the "Deceased A" was homicidal in nature and amounts to murder, but from his statement it is clear that "Deceased A" aged about six to seven years died due to asphyxia and mode of her death was smothering, which shows that somebody had killed her by covering her nose and mouth, so that she suffocates and sexually assaulted her before her death .
11. So from the statement of these witnesses it is clearly proved that "Deceased A" died between 7:00 pm to 7:00 am of 18-19/01/05 due to asphyxia, which was caused by smothering and her death was homicidal in nature which amounts to murder and somebody also tried to commit rape with her before her death.
12. Although there is no direct evidence on record on the point whether the appellant murdered "Deceased A" and also committed sexual assault on her before her murder and the prosecution story is based only on circumstantial evidence, but prosecution produced following circumstantial evidence against the appellant :-
(i) Appellant was last seen with the "Deceased A"
before her death;-:8:-
(ii) On the information of appellant, Police seized his shawl and underwear of the "Deceased A" stuck with excreta.
(iii) At the time of examination of appellant on 19/01/05 smegma was not present on the appellant's penis.
(iv) On 19/01/05 at the time of medical examination excreta was also found on appellant's trouser & underwear and blood stains on his nail.
13. Regarding point No.(i) Sugantibai (PW/1) mother of the deceased deposed that on the date of incident when she returned home at 6:00 pm after work, her daughters ("Deceased A" and Ku Nisha) were with the appellant, who was playing with them. Thereafter, when she went to take her daughters at 7:30 pm, she saw that the appellant's house was open and none was present there. On searching, she could not find her. Thereafter, at 11:00 pm when appellant was found at his house she enquired him about "Deceased A" to him. On that appellant told her that he did not know about her. She then lodged the report. In this regard her statement is also supported from the FIR (Ex.P/14) which was also proved by the LR. Kohli (PW/11) and by the statement of her elder daughter Ku Nisa (PW/2) who also deposed that appellant lived near her house and on the date of incident "Deceased A" was playing at appellant's house. At 6:00 pm she came back to her house and "Deceased A" stayed there. Later, when her mother went to appellant's house, both "Deceased A" and appellant were not there. Thereafter, when at 11:00 pm, appellant was found at his house, her mother enquired appellant about "Deceased A", who told that he did not know about her.
14. Although Sugantibai (PW/1) and Ku. Nisa (PW/2) are relatives of the "Deceased A", but their statements can not be discarded only on that ground. Likewise, the point that at 11:00 pm -:9:- when Sugantibai found appellant at his house and enquired him about "Deceased A", and he told her that he did not know about her is an improvement in her Court statement. This fact is not mentioned in the FIR (Ex.P/1) logged by her and her case diary statement (Ex.D/1). But only on that ground her entire statement cannot be doubted. From her statement which is also corroborated from the FIR (Ex.P/14) and also by the statement of her elder daughter Ku.Nisha (PW/2) it is clearly proved that on 18/01/05 at 6;00 pm "Deceased A" was last seen with appellant and thereafter at 7 a.m on 19/01/05 dead body of "Deceased A" was found lying along roadside in Premshankar Malviya's farm as mentioned in spot map (Ex.P/16).
15. Regarding point Nos. (ii), (iii) and (iv) LR. Kohli (PW/11) deposed that on 19/01/05 he arrested the appellant and prepared arrest memo (Ex.P/13) and sent him for medical examination and Dr. Basant Srivastava (PW/4), who examined appellant in the hospital deposed that on 19/01/2005 he examined the appellant and found excreta on his underwear and trouser. So, he seized his underwear and trouser. On examination he found that smegma was absent on his penis. In his opinion the appellant is capable for intercourse. He also took the sample of nails of appellant's hand, his blood and also prepared slide of his semen and after preserving that samples sent them to P.S. Betul Bazar through Constable Sitaram (PW/3). His statement is fully supported from the MLC report (Ex.P/3) given by him and statement of Sitaram (PW/3), who also deposed that he took appellant Sadan for medical examination and also took his clothes, slide and hand nails sample from hospital in a sealed packet and produced that packet at P.S. Betul Bazar, which was seized by the LR. Kohli (PW/11) from his possession and prepared seizure memo (Ex.P/15).
16. Dr. Basant Srivastava (PW/4) also deposed that at the time of autopsy of dead body of "Deceased A" he also seized her clothes and prepared slide of vaginal swab and also took her blood and excreta -:10:- sample and after preserving that samples, handed them over to the concerned Constable in six separate sealed packets. Raj Kumar (PW/8) deposed that on 19/01/2005 he was posted as Constable at Police Station Betul Bazar. He took six sealed packets (containing viscera, blood sample, slide of vaginal swab, stool and clothes of the deceased) from the hospital, which were seized by the Head Constable Dhanraj from his possession who prepared seizure memo (Ex.P/11).
17. LR. Kohli, (PW/11) further deposed that on 20/01/05 he again interrogated the appellant and on his information he seized one underwear, slippers of the "Deceased A", and shawl of appellant from Ramdeen Rathore's field and prepared information memo (Ex.P/9) and seizure memo (Ex.P/10), which were also proved by Krishna (PW/6) and Premram @ Pintu (PW/10) panch witnesses of that memos. L.R. Kohli, (PW/11) also deposed that on 26/02/05 he sent seized articles to Forensic Science Laboratory, Gwalior alongwith letter (Ex.P/7). Prosecution also produced FSL report (Ex.P/22) of that article wherein it is mentioned that blood stains were found in appellant's nail sample.
18. Learned counsel of the appellant submitted that shawl and underwear has been seized from the open place which was ordinarily visible to others. Therefore, it can not be said that the said objects were only in the knowledge of the accused. Even otherwise from the statement of Sugantibai (PW/1) it is clear that L.R. Kohli, (PW/11) had already seen that article on 19/01/05 at the time of preparing spot map (ExP/16). So Discovery of that article on the information of accused has no meaning and it is also not proved that seized shawl belonged to appellant. So on the basis of seizure, no adverse inference can be drawn against appellant. Likewise, there is no evidence on record that the blood found on the nails of appellant was human blood and that its blood group matched with the blood group of "Deceased A". So on that basis also no adverse inference can be drawn against appellant.
-:11:-19. But his arguments has no force. Although, Sugantibai (PW/1) deposed that around 6-7 am on 19/01/05 she found dead body of her daughter "Deceased A" lying in front of Maida Mill and the shawl of appellant slippers and underwear of "Deceased A" lying twenty feet away from the dead body, which shows that Sugantibai (PW/1) had already seen that articles on 19/01/05. L.R. Kohli (PW/11) also deposed that on 19/01/05 Sugantibai again came to the Police Station and informed that the dead body of her daughter was lying near the road. On that he went on the spot i.e. one k.m. away towards East from Badora square, where the dead body of the "Deceased A" was lying in a field. He prepared spot map (Ex.P/16) and this witness recovered shawl slippers and underwear from near the spot which would have caught sight of this witnesses while making the spot map because they were lying near the spot. So it can not be said that the shawl, slippers and underwear were for the first time recovered from the information of the appellant. But appellant did not challenge the statement of Sugantibai (PW/1) on the point that seized shawl belonged to him. So it is proved that appellant's shawl was found near dead body of "Deceased A".
20. Likewise, from the FSL report it is not proved that the blood found on the nails of appellant was human blood and that its blood group matched with the blood group of "Deceased A". But from that report it is proved that blood was found in the nail of appellant on 19/01/05. Although the evidence of blood stains found in the nails of appellant cannot be recorded as a conclusive piece of evidence. But it is certainly a piece of evidence which goes to support the other evidence about the guilt of accused. As held by the Hon'blie Apex Court in the case of Namdeo Daulata Dhayagude and Ors. vs State Of Maharashtra AIR 1977 SC 381. Dr. Basant Shrivastava (PW/4) also stated that at the time of medical examination of accused no smegma was present on his penis.
-:12:-21. So from the above discussion in the considered opinion of this Court it is proved against appellant that :-
(i) Appellant was last seen with the "Deceased A" before her death;
(ii) Appellants shawl was found near dead body of
"deceased A".
(iii) At the time of examination of appellant on 19/01/05 no smegma was present on the glance of appellant's penis.
(iv) On 19/01/05 at the time of medical examination excreta was also found on appellant's trouser & underwear and blood stains on his nail.
22. Apex court in the case of State of Rajasthan v. Kashi Ram, AIR 2007 SC 144 held that when the accused does not throw any light upon facts which are specially within his knowledge and which could not support any theory or hypothesis compatible with his innocence, the Court can consider his failure to adduce any explanation, as an additional link which completes the chain. Apex court in the case of Sahadevan Alis sagadevan Vs State represented by Inspector of Police, Chennai (2003) 1 SCC 534 also held that a person who is last found in the company of another, if later found missing, then the person with whom he was last found has to explain the circumstances in which they parted company.
23. In the instant case also the prosecution established the fact that "Deceased A" aged about six to seven years died due to asphyxia and mode of her death was smothering, which shows that somebody had killed her by covering her nose and mouth, so that she suffocates and sexually assaulted her before her death. She was seen in the company of the appellant on January 18, 2005 till at least 7 p.m. and thereafter her dead body was found in the morning of January 19, 2005. So it is the duty of appellant to give explanation regarding -:13:- whereabouts of the deceased when he parted the company of deceased. But appellant after his arrest did not offer any explanation and even during trial only denied the allegations made against him without offering any explanation for his absence from his house between 7:00 pm to 11:00 pm on the crucial day. In the post mortem multiple semi lunar abrasion (nail mark) with blood clots were found on the face and neck of the deceased and her hymen was also found ruptured in 5 mm diameter. During medical examination of appellant on 19/01/05 blood stains were found on his nail and no smegma was present on the glance of his penis. Appellant's shawl was found near dead body of "Deceased A". Appellant did not offer any explanation regarding these circumstance also and even at the trial only denied the allegations made against him without offering any explanation.
24. These incriminating circumstances collectively in our view form a complete chain and are consistent with no other hypothesis except the guilt of the accused/appellant. He did not give any explanation regarding all of these circumstances which clearly proves against appellant that he abducted the "Deceased A" and murdered her and also tried to commit rape with her before murdering her. So we are of the considered opinion that trial Court did not commit any mistake in finding appellant guilty for the aforesaid offences.
25. As far as sentence is concerned, learned trial Court convicted appellant for the offences punishable under Section 363, 366, 376(2) read with Section 511 and 302 of IPC. While the offence under Section 366 of IPC is a graver form of offence punishable under Section 363 of IPC. So in the light of Section 71 of IPC appellant should only be convicted for the offence under section 366 of IPC which is graver. So looking to the facts and circumstances of the case the conviction of appellant for the offence punishable under Section 363 of IPC is set-aside. All other sentences shall remain the same.
-:14:-26. All jail sentence of appellant shall run concurrently. The period of custody during trial shall be adjusted towards the period of substantive sentences of imprisonment.
27. Accordingly, appeal is disposed off.
(H.P. Singh) (Rajeev Kumar Dubey)
JUDGE JUDGE
as/-