Madhya Pradesh High Court
Gyanichand vs State Of M.P. on 25 November, 2021
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
RAJEEV KUMAR SHRIVASTAVA J.J.
Cr.A. No. 481 of 2010
Gyanichandra and another
Vs.
State of M.P.
Shri Ashok Jain Counsel for the Appellant
Shri Naval Gupta Counsel for the State
Date of Hearing : 22-11-2021
Date of Judgment : 25.11.2021
Approved for Reporting :
Judgment
25th- November -2021
Per G.S. Ahluwalia J.
1.This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 18-5-2010 passed by Special Judge (MPDVPK Act) Shivpuri in Special Sessions Trial No. 36/2008 by which the appellants have been convicted and sentenced for the following offences :
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Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) Convicted under Section Sentence 364-A of IPC R/w 11/13 of Life Imprisonment and fine of MPDVPK Act Rs. 1000/- in default 3 months R.I. 302 of IPC R/w 11/13 of Life Imprisonment and fine of MPDVPK Act Rs. 1000/- in default 3 months R.I. 201 of IPC 3 years R.I. and fine of Rs.
1000/-, in default 3 months R.I.
2. The prosecution story in short is that on 7-11-2007, the complainant Rambabu lodged a report, that on 6-11-2007, at about 10 A.M., his son Brajesh Kumar, aged about 19 years had gone to Mangalam Bhavan, Shivpuri for doing Yoga. However, he has not returned back.
3. The police recorded the statements of Rambabu, Raghuvir, Ravi Gaurav, Manish, Varsha etc. In the meanwhile, the complainant Rambabu, received a telephonic call for demand of ransom and a letter was also sent, thereby making demand of ransom. The said letter was seized by the police. Thereafter, the police registered the F.I.R. in crime No. 755/2007 for offence under Section 364-A of IPC. The call details of the telephonic calls, which were being made to the complainant, were taken out. Accordingly, on 13-2-2008, one mobile of motorola company was seized from the possession of one Mukesh. On 14-2-2008, the appellant no.1 Gyani and Kamal were arrested. On the disclosure statement made by appellant no.1 Gyani, the human skeleton and cloths were recovered from the forest area. The Panchnama of the skeleton was prepared. The spot map was 3 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) prepared. The blood stained and plain earth was seized. Two stones were also seized on the disclosure made by the appellant no.1 Gyani. On 24-2-2008, the appellant no.2 Mahendra and Ramjilal and Virendra were arrested. On the disclosure statement made by Mahendra, stones and shoes of the deceased were recovered. The statements of the witnesses were recorded. The bones as well as blood samples of the complainant and his wife were sent for D.N.A. In the D.N.A. report, it was found that the person whose skeleton was recovered, is the biological son of the complainant and his wife. The letter of ransom was sent to handwriting expert, and as per the report of the handwriting expert, the letter was in the handwriting of the appellant no.2 Mahendra. The police after completing the investigation, filed the charge sheet for offence under Sections 364- A, 201,120B,302 of IPC and under Section 11/13 of MPDVPK Act against the appellants and Kamal, Ramjilal and Virendra.
2. The Trial Court by order dated 27-6-2008 framed charges under Section 364-A of I.P.C. R/w Section 11/13 of MPDVPK Act or in the alternative under Section 365 of I.P.C. R/w 11/13 of MPDVPK Act, under Section 302 of I.P.C. R/w 11/13 of MPDVPK Act and under Section 201 of I.P.C. against the appellants and other co- accused persons.
3. The appellants and the co-accused persons abjured their guilt.
4. The prosecution examined Satish Kumar Khatik (P.W.1), Rambabu Singh Tangar (P.W.2), Kailashi Devi (P.W.3), Mukesh (P.W. 4 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010)
4), Jagdish (P.W.5), Mahor Pal (P.W.6), Jagan (P.W.7), Bahadur Singh Raghuvanshi (P.W.8), Janved Jatav (P.W.9), Mohanlal (P.W.10), Hakim Singh Suman (P.W.11), Masih Khan (P.W.12), R.V.S. Parihar (P.W. 13), P.K.Saraswat (P.W. 14), Niraj Pandey (P.W. 15), Hariram (P.W. 16), Ratnesh Singh Tomar (P.W. 17), Dr. C.S. Jain (P.W. 18), and A.K. Das (P.W. 19).
5. The appellant No. 2 examined Smt. Janki (D.W. 1 in his support.
6. The Trial Court by the impugned judgment, acquitted the co- accused persons, namely Kamal, Ramjilal and Virendra, whereas convicted and sentenced the appellants for the offences mentioned above.
7. It appears that being aggrieved by the acquittal of 3 co-accused persons, the State filed an application for grant of leave to appeal, which was registered as M.Cr.C. No. 5240 of 2010. The application was dismissed by order dated 9-5-2011. Thus, the acquittal of the 3 co-accused persons has attained finality.
8. Challenging the conviction and sentence passed by the Court below, it is submitted by the Counsel for the appellants, that the skeleton, which was allegedly recovered on the disclosure statement made by the appellant no.1 was not that of abductee Brajesh Kumar. Further, the body of the deceased was eaten by wild animals, therefore, it appears that the abductee had become the pray of some wild animas. Similarly, the original letter of ransom, allegedly 5 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) written by the appellant no.2 was never produced in the Trial.
9. Per contra, the Counsel for the State has supported the findings recorded by the Trial Court
10. Heard the learned Counsel for the parties.
11. Before adverting to the facts of the case, this Court thinks it apposite to find out as to whether the death of Brajesh Kumar was homicidal in nature or not?
12. As already pointed out, a human skeleton was recovered which was kept in hidden condition under the stones. The said skeleton was sent for post-mortem. Dr. C.S. Jain (P.W. 18) has conducted post- mortem. The following bones were received by him :
(i) Cranium (ii) Mandible (iii) Lt. Humerus (iv) 14 Ribs (v) III to VI cervical vertebra, Ist and IInd cervical vertebra are
attached with cranium, 5th to 125h thoracic vertebra with fine lumbar vertebra +Pelvis+ both femur +both tibia fibula right foot found attached with ligament and tissue.
(vi) Right radius and ulna both attached with metacarpal (II to V) Phalanges of middle and ring fingers (Illegible) seen in Ist and IInd toe right.
Mummified skin attached with right leg, muscles missing. Skin of right leg having loosely attached hairs. 6
Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) Length of femer 44 cms, tibia 38.7 cm, fibula 36.3 cms, humerus 31 cms, Bicondylar width of lower end of femur 7.5 cm, shape of eye cavity square, Chin of mandible square, epiphysis of all vertebra fused, end of long bones fused, iliac crest fused, (Illegible) not obliterated, Glabella prominent, Supraciliary arch (illegible) process all prominent, Last molar teeth was not in the level of 2 nd molar teeth of right upper jaw. Last molar teeth of left jaw was not in the level of 2nd molar teeth. Both incisor teeth of upper and lower jaw, 1 st Canine and premolar teeth were absent. There was no injury on the bones. One cervical vertebra, right humerus and radius bone of left toe were missing. All the bones were human bones and age of the bones was 20 years. The height was 5 ft and 7 inch. The cause of death could not be ascertained. The duration of death was approximately 2-3 months from the date of examination. Humerus and skull bones were packed and sealed in different packets and were sent for D.N.A. Test. The remaining bones were packed and sealed in another box. The post-mortem report/examination report, is Ex. P. 41.
13. On 7-4-2008, a letter dated 17-4-2008 written by S.P. Shivpuri was received by this witness, along with copy of post-mortem report and three stones weighing 6 kg 100 gms, 5 kg and 2 kg and a query was raised as to whether the deceased was killed with the help of those stones or not? Accordingly, he submitted his report, and stated that in case of assault by any of the above mentioned stones, there is a possibility of internal bleeding and death may take place due to 7 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) shock. His report is Ex. P.50.
14. This witness was cross-examined. In cross-examination, this witness has stated that he had not found any stain on the stones. In case, if any assault is made on the head, then there was a possibility of injury on the head, but there was no possibility of any stain on the stone. There was also a possibility of injury to brain. Lot of bones were attached with each other and the age of all the bones was same. He denied that the skull bone could have been that of monkey. He had ascertained the gender on the basis of bones sent to him. The duration of death was not more than 2-3 months as ligament was also attached. He admitted that the bones were not in a sealed condition, but were packed in a carton. He denied that in case of assault by the stones, then there should have been blood stains on the stones.
15. From the cross-examination of this witness, it is clear that the duration of death of the deceased was some time in between 2-3
16. The next question for consideration is that whether the skeleton was that of Brajesh Kumar or not?
17. The blood samples of the complainant Rambabu and his wife Dhanti bai were collected and by letter dated 11-6-2008, the Superintendent of Police, Shivpuri, vide memo Ex. P.42, sent the blood samples of Rambabu, Dhanti bai as well as the skull and humerus bone of the deceased for D.N.A. Test. The D.N.A. Report dated 6-8-2008 is Ex. P.44, according to which Rambabu and Dhantibai were the biological father and mother of the deceased. 8
Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) Thus, it is clear that the prosecution has established that the bones which were recovered at the instance/disclosure by the appellant Gyani, were that of Brajesh Kumar.
18. Now, the question is that whether the death was homicidal in nature or not? This aspect shall be considered and decided after considering the surrounding circumstances.
19. Satish Kumar Khatik (P.W.1) is the seizure witness before whom the police had seized a letter from complainant Rambabu vide seizure memo Ex. P.1. (Later on, the Trial Court remarked the document as Article A) (It is also not out of place to mention here that subsequently, the original letter was also produced along with the handwriting of the expert, and it was marked as Ex. P.49). The complainant Rambabu had informed, that his son Brajesh is missing, therefore, they have to go to police station. The complainant had informed that the letter is regarding demand of ransom of Rs. 6 lacs. This witness was cross-examined. This witness has stated that he had seen the letter, although expressed that at present he doesnot remember the entire contents, but submitted that it was a letter of demand of Ransom of Rs. 6 lacs. He denied that the letter was written by the complainant Rambabu himself.
20. Rambabu Singh Tengar (P.W.2) is the complainant and is the father of the abductee/deceased Brajesh Kumar. This witness has stated that on 6-11-2007, his son Brajesh Kumar had gone for doing Yoga. Thereafter, he did not return back. He searched for his 9 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) whereabouts, but he was informed that his son had not attended the Yoga class. Accordingly on 7-11-2007, he lodged a gum insaan report. On 8-11-2007, he received a telephonic call by which he was informed that, his son is in the captivity of the caller and a demand of Rs. 6 lacs was made. The information of the telephonic call was also given to the police. Thereafter, a letter demanding ransom of Rs. 6 lacs was also received. This witness has identified the letter in the Court. The letter, Article A/Ex. P.49, was handed over to the police, which was seized vide seizure memo Ex. P.1. However, the police did not take any interest and were alleging that his son must have eloped with some girl. Since, this witness was having the Caller ID facility, therefore, he also informed the number of the caller to the police. On 20-12-2007, he had given an application to the police, Ex. P.2. However, no action was taken by the police and accordingly, he informed the I.G. and D.I.G. His son could have been saved, if prompt action was taken by the police. He further stated that after the mobile number was given by this witness, only then the accused persons were arrested. He had identified the cloths of the deceased like T. Shirt, Paint, Underwear, etc in Tahsil Office Shivpuri. The identification memo is Ex. P.3. All the phone calls were made to him, from mobile Phone. This witness was cross-examined.
21. In cross-examination, this witness has stated that he had one son and three daughters. His monthly salary was Rs. 7000-8000 and had no other source of income. He further stated that his son had left 10 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) the house at about 9-10 A.M. He did not inform that he is going for playing cricket. His son was wearing the pant which was the uniform of Ragini Public School. His son was wearing sports shoe and had not taken anything with him. When he apprehended that his son might have been killed, then he informed Chief Minister, D.G.P. and other Senior Officers. After four months of missing, he had expressed his apprehension regarding murder of his son. Some body had thrown the letter after 6 days of abduction. The letter, Article A was not in the envelop and was lying in the gallery. The letter was in original, but there was no date on it. The original letter must be with the police (It appears that at the time of examination of this witness, the original letter was sent to handwriting expert, and at the later stage, the original letter was produced along with the report of the handwriting expert). The police had recorded his statements twice or thrice. The statement for the first time was recorded after the receipt of the letter. At the time of recording of 2 nd statement, he was not aware that his son has been killed. At the time of recording of 3 rd statement, he was aware that his son has been killed. He had received an information of Test Identification Parade. He had identified the articles. He denied that his son had left the house after having quarrel with the family members and is still alive.
22. Kailashi Devi (P.W. 3) has stated that the appellant Gyani had made a confessional statement that the dead body has been kept under the stones and the confessional statement is Ex. P.4. 11
Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) Thereafter, the police along with this witness went to the Hills of Survaya and recovered a skeleton which was lying under the stones. T. Shirt on which Shivpuri M.P. was written, Pant of black colour, Underwear of yellow colour, Kada, socks, blood stained stones and earth were seized vide seizure memo Ex. P.5. The Safina form is Ex. P.6. She had seen the skeleton which was of a man. She had also seen hairs near the skeleton. The Lash Panchnama, Ex. P.7 was prepared. The panchnama of blood stained earth, stone and plain earth, Ex. P.8 was prepared. This witness was cross-examined.
23. In cross-examination, this witness admitted that the complainant is her relative. On the information given by the police She went to police station on 20-2-2008, . The appellant Gyani was not handcuffed, when he had signed the memorandum. They went to Hills of Survayi at about 6 P.M. the S.D.O.(P) was having torch. Apart from police, 15-20 more persons had also gone there. They came back at about 7 P.M. The boy (deceased) had left his house in the presence of this witness. She still recollects the colour of his cloths and the boy had gone after informing this witness. The cloths seized from the spot were lying in scattered condition. The cloths were torn. The writing work was done by the police, on the spot itself.
24. Mukesh (P.W. 4) has turned hostile.
25. Jagdish (P.W. 5) has stated that on 6-11-2007, the complainant Rambabu had informed that his son had gone for Yoga, however, he 12 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) has not returned back and accordingly the gun insaan report was lodged. On 8-11-2007, the complainant Rambabu received a telephonic call, and the information of the same was given to Police Station Kotwali. Thereafter on 15 th, a letter was received in which it was mentioned that the abductee is in their captivity and if Rs. 6 lacs are not paid, then he would be killed. This witness has identified the letter Article A. Article A was seized by the police vide seizure memo Ex. P.1
26. In cross-examination, this witness has stated that the complainant had brought the letter, Article A to this witness. The letter was in original. Article A is the photo copy of the original letter. He expressed his ignorance about the whereabouts of original letter.
27. Mohanpal (P.W. 6) has also stated in the same lines. This witness is the brother-in-law (Saala) of the complainant Rambabu. He has stated that he was informed by the complainant, that his son is missing and accordingly, gum insaan report was lodged. Thereafter, the complainant had received a telephonic call to the effect that the abductee is in the captivity of the caller and a ransom amount of Rs. 6 lacs was demanded. Thereafter, one letter was also received on 14 th and accordingly, the said letter was handed over to the investigating officer. On 13-2-2008, the co-accused Mukesh was arrested and one mobile was seized from his possession vide seizure memo Ex. P.9. From the said mobile, the telephonic calls were made to the 13 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) complainant. Thereafter, he received an information from the police, that accused persons have been arrested and they are to be interrogated, therefore, this witness should come to Police station. Thereafter, this witness went to Police Station Kotwali and the appellant was arrested vide arrest memo Ex. P.11. The appellant informed that the mobile belongs to Babu. Thereafter, he also disclosed about the location of the dead body. Accordingly they went to the spot. A human skeleton was lying in a pit. Some body parts were missing and torn cloths were lying there.
28. In cross-examination, this witness denied the suggestion that he is not related to Kailashi bai or he is not related to Rambabu Tengar. He further stated that he was not knowing the accused persons prior to their arrest. On 20-2-2008, this witness, his sister (Kailashi), S.P.O.(P), and Diwanji had gone to hill and no other person had gone. He further stated that within 10-15 minutes of information, they had reached the police station. Narwar is about 40 Kms away from Shivpuri. The hill is about ½ km high. They had climbed the hill by walking. He stated that it was not completely dark at the time when proceedings were done on the top of the hill.
29. Jagan (P.W.7) has stated that the son of the complainant had not returned back. Thereafter, the complainant had received a letter demanding ransom. The complainant had also received a telephonic call by which a ransom of Rs. 6 lac was demanded. Thereafter, a mobile of Motorola company was seized from Mukesh vide seizure 14 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) memo Ex.P.9. Thereafter, Gyani was arrested. Gyani had informed that Brajesh has been killed and also disclosed that the dead body has been hidden/burried on the hill. The memorandum is Ex. P.4. Thereafter, this witness also went to Urwaha, Narwar. Gyani had pointed out the skeleton on the hill. The cloths, stones, Kada, etc were seized vide seizure memo Ex. P.5. The safina form is Ex. P.6. The Lash Panchnama is Ex. P.7. The blood stained stones were also seized. Mahendra was also arrested vide arrest memo Ex. P.19. He had informed about the shoes and socks of the deceased and his memorandum is Ex. P.20. On the disclosure by Mahendra, one pair of shoe and socks were seized from the hill of Urwahe vide seizure memo Ex. P.21. Similarly, one register was also seized from the house of Mahendra vide seizure memo Ex. P.23. The spot map Ex. P.13 was prepared. The blood stained and plain earth were seized vide seizure memo Ex. P.8. He further stated he had received multiple telephonic calls from mobile no. 9907452406. The complainant had also received similar calls from the same mobile. He further stated that CDR of both the mobiles was obtained by S.P., Shivpuri. This witness was also cross-examined but nothing could be elicited from his cross-examination,which may make the recovery of skeleton, cloths and register, untrustworthy or suspicious.
30. Bahadur Singh Raghuvanshi (P.W. 8) has proved the merg no.9/08, Ex. P.24 and counter copy of F.I.R., Ex. P.25. The said copy was sent to concerning police station and the entry in outward and 15 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) inward register is Ex.P.26 and the acknowledgment of receipt is Ex. P.27.
31. Janved Jatav (P.W. 9) has turned hostile.
32. Mohanlal (P.W.10) had recorded the statements of witnesses during gum insaan enquiry.
33. In cross-examination, this witness has stated that the complainant had brought the letter on 15-11-2007. He had come to the police station at about 9:30 A.M. Letter, Article A doesnot contain the seal of any post office and also doesnot contain the name of sender. The letter was seized.
34. Hakim Singh Suman (P.W. 11) had conducted the identification parade of the articles. He has stated that he had received two sealed packets. One was having cloths of the deceased and another was having shoes of the deceased. He had conducted the test identification of the articles. The complainant had rightly identified the same. The Test Identification Memo Ex. P.3 was prepared by this witness. Thereafter, the articles were returned back in a sealed packet. The panchnama of re-sealing the articles is Ex. P.32. In cross-examination, this witness has stated that similar type of shoes are available in the market. He has not mentioned about the colour, make and company of the shoe. He has also not mentioned the condition of the cloths in detail. He further stated that similar kind of shoes were mixed. However, admitted that similar kinds of cloths were not mixed. The Memo Ex. P.3 is in his handwriting. 16
Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010)
35. Masih Khan (P.W.12) has stated that he was posted as Head Constable in Cyber Crime Cell. An application, Ex. P.33 was received for obtaining the CDR of mobile No. 9907452406. Accordingly the CDR, Ex. P.34 was obtained. By letter dated 15-4- 2008, Ex. P.35, the call details of phone no. 9993728402, 9753069222, 9993612382 were sought. Accordingly, S.P. by letter, Ex. P.36, had directed him to provide the call details. Accordingly, the call details of mobile No. 9993728402, Ex. P.37, 9753069222, Ex. P.38, 99936123282, Ex. P.39 and 9977378997, Ex. P. 40 were provided. In cross-examination, this witness has clarified that the location of the mobile is also shown in the call details.
36. R.V.S. Parihar (P.W.13) had recorded the statements of Rambabu, Jagdish, Nanda Maharaj, Satish on 15-11-2007. In cross- examination, this witness has stated that the complainant had not informed as to whether his son is alive or dead. No one had named the accused persons.
37. P.K. Saraswat (P.W. 14) has stated he had registered the gum insaan report. The enquiry was done by Head Constable Mohanlal. Thereafter, it was found that offence under Section 364-A of I.P.C. has been committed, accordingly, F.I.R., in crime No. 755/2008, Ex. P.30 was registered.
38. Neeraj Pandey (P.W. 15) is the investigating officer. He has stated that on 13-2-2008, he received the case diary for investigation. On 13-2-2008, he arrested Mukesh and seized one mobile phone vide 17 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) seizure memo Ex. P.9. Thereafter on 14-2-2008, he arrested the appellant Gyani and co-accused Kamal vide arrest memo Ex. P.11 and P.12. On 20-2-2008, he had interrogated the appellant Gyani in the presence of the witnesses. He disclosed that the dead body of the deceased has been hidden under the stones. Accordingly, his memorandum, Ex. P.4 was recorded. Thereafter, the appellant Gyani was taken to the Hill where the skeleton, hairs, torn cloths, Steel Kada, One Rudraksh were seized vide seizure memo Ex. P.5. Safina form is Ex. P.6. The naksha Panchayatnama of the skeleton in Ex. P.
7. As per the opinion of the panchas, the skeleton was 2-3 months old and it appeared that animals had eaten the same. The spot map, Ex. P. 13 was prepared. The application for post-mortem, Ex. P. 41 was also prepared on the spot itself. Blood stained and plain earth were also seized from the spot. 2 big and 2 small size stones were also seized on the disclosure made by the appellant Gyani vide seizure memo Ex. P.8. On 27-2-2008, one pair of shoe of the deceased and one stone were seized vide seizure memo Ex. P. 21 on the disclosure made by the appellant Mahendra. One register was also seized from the house of the appellant Mahendra vide seizure memo Ex. P.23. On 11-6-2009, the blood samples of Dhanti bai and Rambabu as well as skull and humerus bone of the deceased were sent for D.N.A. test through S.P., Shivpuri. The draft is Ex. P.42. On the same day, the seized cloths, socks, kada, stone, shoe, and earth were sent by draft, Ex. P.43. The D.N.A. report is Ex. P.44. The 18 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) F.S.L. report of articles is Ex. P.45. The CDR of mobile phone,Ex. P.46 was received. This witness was cross-examined.
39. In cross-examination, it is stated by this witness that he was posted in Shivpuri on 2-1-2008. He got the case diary on 13-2-2008 from Shri P.K. Saraswat. He further stated that the mobile which was used for making threatening calls was seized from the possession of Mukesh and since the CDR of the said mobile was already obtained, therefore, the appellant Gyani was arrested. He further stated that on 14-2-2008, the appellant Gyani had given one more confessional statement but on the basis of said disclosure, the dead body was not recovered. He further stated that he had called Kailashi and Janak Singh by sending some police personal. He also stated that it might be possible that he might have called them by making phone call. The office of S.D.O.(P) is situated at a distance of 35-40 Kms away from the place, from where the skeleton was seized. He further stated that to climb the hill, they were required to walk for 2-3 Km.s. They took about 20 minutes to reach to the top. Apart from Gyani no other accused had gone to the hill. He admitted that before completing the formalities, it had become dark, therefore, some formalities were completed in the light of the torch, searchlight etc. The skeleton was hidden under the stones. He had not seen any external injury on the skeleton. He further admitted that at the time of recovery of skeleton, the parents of the deceased were not present, but the other relatives were present. He further stated, that one pair of shoe of the deceased 19 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) was recovered on the disclosure made by Mahendra. He further stated that the mines were already closed, and there was no movement of any person or vehicle upto the distance of 4-5 kms from the place, from where the skeleton was seized. He further stated that the seized register and the letter were sent to the handwriting expert. The report of handwriting expert is Ex. P.48. The original letter is Ex. P.49. The seized register is Article B and C. He further stated that Mahendra had on his own had taken out the register, which was seized. He denied that the register was not seized from the house of Mahendra.
40. Hariram Godsar (P.W. 16) had registered merg under Section 174 of Cr.P.C.,Ex. P.48.
41. Ratnesh Singh Tomar (P.W. 17) has stated that he had arrested the appellant Mahendra on 24-2-2008. Mahendra had given his confessional statement, Ex. P. 20 disclosing the location of pair of shoes. He further stated that the remaining proceedings were done by Neeraj Pandey.
42. In cross-examination, this witness clarified that since, Neeraj Pandey had gone somewhere, therefore he had instructed him to arrest the accused persons and interrogate them.
43. A.K. Dass (P.W. 19) is the handwriting expert. He has stated that he had compared the disputed handwriting with admitted handwriting and it was found that both the documents are in the handwriting of the same person. This witness was cross-examined, who stated that any body can write in the handwriting of another 20 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) person.
44. The appellant no. 2 Mahendra examined Smt. Janaki (D.W.1), who stated that register was not seized from her house. In cross- examination, she denied that She is not narrating the truth as the appellant Mahendra is her son. She further stated that appellant Gyani is also her son. She denied that her sons have killed somebody.
45. Thus, from the evidence, which has been led by the prosecution, it is clear that on 6-11-2007, the son of the complainant Rambabu left the house for attending the Yoga classes and thereafter did not return back. The complainant received the threatening calls from the mobile and a ransom of Rs. 6 lac was demanded. Thereafter, the complainant also received one letter in which also, the demand of ransom of Rs. 6 lacs was made. On the basis of the telephonic calls made to the complainant, the police succeeded in apprehending the appellant Gyani. On his disclosure, the skeleton of a boy aged about 20 years was seized from the top of the hill. A police party was required to walk for 2-3 Km.s in order to reach to the top of the hill. There was no movement of men or vehicle around the place from where the skeleton was seized. The skeleton was found hidden under the stones. The skull and humerus bones were sent along with the blood sample of Rambabu and his wife Dhanti bai for D.N.A. Test and as per D.N.A. test report, Rambabu and his wife Dhanti bai were the biological parents of the person, whose skeleton was recovered. 21
Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) The cloths and other articles which were recovered from the spot were duly identified by the complainant. Similarly, a register was recovered from the possession of Mahendra. Letter, Article A/Ex. P.49 containing the demand of ransom and the admitted handwriting of Mahendra were sent to the handwriting expert, and it was found that both the documents were written by the same person, therefore, it is clear that letter, Article A/Ex.P.49, by which ransom amount of Rs. 6 lac was demanded, was in the handwriting of Mahendra.
46. It is submitted by the Counsel for the appellants, that since, the skeleton was seized from the open space, and the Neeraj Pandey (P.W. 15) has admitted that the skeleton was eaten by the animals, therefore, it is clear that the deceased Brajesh might have become the pray of animals and the appellant Gyani has been falsely implicated.
47. Considered the submissions made by the Counsel for the appellants.
48. The Supreme Court in the case of Yakub Abdul Razak Memon v. State of Maharashtra, reported in (2013) 13 SCC 1 has held as under :
1794. In State of H.P. v. Jeet Singh, this Court held: (SCC p. 378, para 26) "26. There is nothing in Section 27 of the Evidence Act which renders the statement of the accused inadmissible if recovery 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 22 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) accessible to others."
1795. Similarly, in Gurjinder Singh v. State of Punjab, this Court held that if a weapon was hidden by digging the earth and could be recovered only be removing the earth, it is not desirable to entertain the argument that recovery had been made from a public place which could have been easily accessible to anyone. The Court further held: (SCC p. 536, paras 28 & 29) "28. ... In our opinion, such trivial mistakes should not give any benefit of doubt or any sort of benefit to the accused. In fact, the recovery was made in the presence of Ajaib Singh, Assistant Sub-Inspector and Balbir Singh, Head Constable. It is also not correct that the memo of recovery was not produced before the Court.
29. Ext. P-46, which reveals the fact about the statement made by the accused in relation to pistol incorporates the entire statement made by the accused. Therefore, the said document itself incorporates the statement made by the accused. Moreover, simply because the recovery was made in the presence of policemen would not adversely affect the prosecution case."
1796. In State (Govt. of NCT of Delhi) v. Sunil this Court held:
(SCC pp. 661-62, paras 19-21) "19. In this context we may point out that there is no requirement either under Section 27 of the Evidence Act or under Section 161 of the Code of Criminal Procedure, to obtain signature of independent witnesses on the record in which statement of an accused is written. The legal obligation to call independent and respectable inhabitants of the locality to attend and witness the exercise made by the police is cast on the police officer when searches are made under Chapter VII of the Code. ...
20. Hence it is a fallacious impression that when recovery is effected pursuant to any statement made by the accused the document prepared by the investigating officer contemporaneous with such recovery must necessarily be attested by the independent witnesses. ... The court has to consider the evidence of the investigating officer who deposed to the fact of recovery based on the statement elicited from the accused on its own worth.
21. We feel that it is an archaic notion that actions of the police officer should be approached with initial 23 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) distrust. We are aware that such a notion was lavishly entertained during the British period and policemen also knew about it. Its hangover persisted during post-
independent years but it is time now to start placing at least initial trust on the actions and the documents made by the police. At any rate, the court cannot start with the presumption that the police records are untrustworthy. As a proposition of law the presumption should be the other way around. That official acts of the police have been regularly performed is a wise principle of presumption and recognised even by the legislature. Hence when a police officer gives evidence in court that a certain article was recovered by him on the strength of the statement made by the accused it is open to the court to believe the version to be correct if it is not otherwise shown to be unreliable. It is for the accused, through cross-examination of witnesses or through any other materials, to show that the evidence of the police officer is either unreliable or at least unsafe to be acted upon in a particular case. If the court has any good reason to suspect the truthfulness of such records of the police the court could certainly take into account the fact that no other independent person was present at the time of recovery. But it is not a legally approvable procedure to presume the police action as unreliable to start with, nor to jettison such action merely for the reason that police did not collect signatures of independent persons in the documents made contemporaneous with such actions."
1797. In view of the above, merely because the contraband was recovered from a public place i.e. a place accessible to the public at large, the same does not mean that the recovery is to be discarded. In case, the articles had been hidden by digging up the earth, covering the same up with garbage or other material, the public may not have taken note of it. The same remained in the specific knowledge of the accused i.e. where and also the manner in which the said articles were hidden. Moreover, the recovery cannot be discarded for want of signature of the accused on the recovery memo.
49. The Supreme Court in the case of Gurjinder Singh Vs. State of Punjab, reported in (2011) 3 SCC 530 has held as under :
27. With regard to the recovery of the pistol, the learned counsel is right that the pistol was recovered from a public 24 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) place but it was recovered from the place which could not have been easily located by anyone and, therefore, the accused cannot get benefit which the learned counsel wanted him to get. From the memo of recovery, it is clear that the pistol had been hidden by digging earth under a plant of Sarkanda about half a kilometre away from a bridge of Ladhuwala Uttar. Thus, it is very clear that the pistol had been hidden by digging earth under the plant of Sarkanda about half a kilometre away on the eastern katcha path from the bridge of Ladhuwala Uttar and, therefore, in our opinion, the recovery cannot be said to be from a place which could have been easily accessible to anyone.
50. The Supreme Court in the case of State of H.P. Vs. 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 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.) 25 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010)
51. In the present case, the skeleton of the deceased Brajesh Kumar was recovered from the top of the hill on the disclosure statement made by the appellant Gyani. The appellant could not point out any material from record to suggest that the said place was accessible to general public. On the contrary, Neeraj Pandey (P.W.
15) has stated that upto 4-5 Km.s there was no movement of men or vehicles. Further more, it has also come on record that the witnesses were required to walk for 2-3 km.s to reach to the place where the skeleton was found. Further, the skeleton was found hidden under the stones. The torn cloths of the deceased were also found from the nearby place. Since, the skeleton of the deceased was recovered from a lonely and isolated place, and it was hidden under the stones, and no general public had access to the place from where skeleton of the deceased was recovered, therefore, it is held that the skeleton of the deceased Brajesh Kumar was recovered on the confessional statement/disclosure made by the appellant Gyani.
52. Recovery of the dead body at the disclosure by the accused is a very strong circumstance against the accused, as it is within exclusive knowledge of the accused about the location where the dead body is lying or kept in hidden condition. The Supreme Court in the case of Ranjit Kumar Haldar Vs. State of Sikkim reported in (2019) 7 SCC 684 has held as under :
20. With this background, the argument of the learned counsel for the appellants is that recovery of dead body was at the instance of Mamta Mohanta and that there is no 26 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) recovery in pursuance of disclosure statement made by appellant Ranjit Haldar. Therefore, the recovery of dead body on the statement of wife of the deceased cannot be used against the appellant. We do not find any merit in the said argument. The consistent statement of the prosecution witnesses such as Jamyang Bhutia (PW 5) corroborated by Ravi Deb (PW 3) is that the house in Rabom was taken on rent by the appellant Ranjit Haldar. The dead body was recovered in a gunny bag concealed under the wooden planks covered by mud and stones. The cross-examination conducted on the witnesses does not suggest that the renting of the premises by Ranjit Haldar is disputed in any manner. There is no dispute that the lock of the house was opened by the police for the first time after Ranjit Haldar locked the house and went to his native village. Therefore, in the absence of any question on these aspects that the house was in his possession and no one had access to that house, the burden of proving the fact that somebody had access to the house during his absence was on him in terms of Section 106 of the Act. The appellant Ranjit Haldar has not even suggested to the prosecution witnesses of possibility of access to the house rented by him. The testimony of Jamyang Bhutia (PW 5) that the house was taken on rent by Ranjit Haldar is proved and on the basis of statement of Ravi Deb (PW 3), who is a carpenter and was residing in the same area, the appellant Ranjit Haldar has miserably failed to disprove the presumption under Section 106 of the Act.
21. In respect of the appellant Mamta Mohanta, there is evidence of recovery of dead body concealed in a house on the basis of her disclosure statement, where she was allegedly living with the other appellant along with the deceased and her two children. The recovery of dead body concealed under the wooden planks covered by mud and stones is very strong incriminating circumstance against Mamta Mohanta to maintain her conviction. Apart from such incriminating circumstance, there is a statement of Doma Lepcha (PW 2) before whom she has confessed.
Phurba Lepcha (PW 4) is the husband of Doma Lepcha (PW 2) who supports this testimony.
53. The Supreme Court in the case of Asar Mohd. v. State of U.P., reported in (2019) 12 SCC 253 has held as under :
15. Let us revert to the circumstances which commended to the trial court and also the High Court to take the view that 27 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) the chain of proved circumstances left no manner of doubt that the accused alone were involved in the commission of the offence in question. Those proved circumstances can be delineated as follows:
15.1. Information regarding the missing persons (Zahida and Ishlam) was given by the village watchman viz. Shababul (PW 7).
15.2. The fact that the two named persons had gone missing for about two months was reinforced after the police visited the village to verify the same and in particular the "admission of accused Asar Mohammed (Appellant 1)" that the two missing persons have been murdered by him and the other two accused viz. Asraf Mohammed and Akhtar (Appellants 2 and 3 respectively) and "their dead bodies were dumped by him in the septic tank in the backyard of their house".
15.3. No "missing report" was lodged by the appellants in respect of Zahida and Ishlam, for reasons best known to them.
15.4. Appellant 1 told the police that he would show the place where the dead bodies were dumped and he led the police party to that spot in the backyard of the house of the appellants, which was within his exclusive knowledge and opened the lid of the septic tank himself to facilitate taking out the two dead bodies which he admitted as that of Zahida and Ishlam.
15.5. One of the two dead bodies recovered from the septic tank in the backyard of the house of the appellants was of a full grown-up female around 32 years of age and another of a male child of about 11 years of age which corresponded with the age of Zahida and Ishlam, respectively. 15.6. The dead bodies were dumped more than one month before the same were removed from the septic tank in a highly decomposed condition.
15.7. Ante-mortem injuries were noticed on the vital part of the neck on both the dead bodies which, according to the medical evidence, was the cause of death due to asphyxia and a case of homicidal death.
15.8. The accused neither disputed the identity of the two dead bodies being that of Zahida and Ishlam nor offered any explanation, even though they were confronted with the incriminatory evidence.
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19. After perusing the entire evidence and taking the totality of the proved circumstances into account, we are in agreement with the conclusion reached by the trial court, 28 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) which came to be affirmed by the High Court, regarding finding of guilt against Appellant 1 Asar Mohammed, who had confessed to the police and also led the police party to the place where the dead bodies were dumped.
54. The Supreme Court in the case of Sunder Vs. State reported in (2013) 3 SCC 215 has held as under :
35. Having given our thoughtful consideration to the submission advanced at the hands of the learned counsel for the appellant, we are of the view, that the instant submission is wholly misplaced and fallacious. Insofar as the instant aspect of the matter is concerned, reference may be made to the judgment rendered by this Court in Sucha Singh case wherein it was held as under: (SCC p. 382, para 21) "21. We are mindful of what is frequently happening during these days. Persons are kidnapped in the sight of others and are forcibly taken out of the sight of all others and later the kidnapped are killed. If a legal principle is to be laid down that for the murder of such kidnapped there should necessarily be independent evidence apart from the circumstances enumerated above, we would be providing a safe jurisprudence for protecting such criminal activities. India cannot now afford to lay down any such legal principle insulating the marauders of their activities of killing kidnapped innocents outside the ken of others."........
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37. We may now refer to some further material on the record of the case to substantiate our aforesaid conclusion. In this behalf, it would be relevant to mention that when the appellant-accused was detained on 30-7-2009, he had made a confessional statement in the presence of Kasinathan (PW
13) stating that he had strangulated Suresh to death, whereupon his body was put into a gunny bag and thrown into Meerankulam Tank. It was thereafter on the pointing out of the appellant-accused that the body of Suresh was recovered from Meerankulam Tank. It was found in a gunny bag, as stated by the appellant-accused. Dr Kathirvel (PW
12) concluded after holding the post-mortem examination of the dead body of Suresh that Suresh had died on account of suffocation prior to his having been drowned. The instant evidence clearly nails the appellant-accused as the perpetrator of the murder of Suresh. Moreover, the statement of Kasinathan (PW 13) further reveals that the school bag, books and slate of Suresh were recovered from 29 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) the residence of the appellant-accused. These articles were confirmed by Maheshwari (PW 1) as belonging to Suresh.
In view of the factual and legal position dealt with hereinabove, we have no doubt in our mind, that the prosecution had produced sufficient material to establish not only the kidnapping of Suresh, but also his murder at the hands of the appellant-accused.
55. The Supreme Court in the case of Anuj Kumar Gupta v. State of Bihar, reported in (2013) 12 SCC 383 has held as under :
17. From the above evidence of PW 9, supported by the version of PW 4, it has come to light that at the instance of the appellant and the co-accused Arun Mandal, the body of the deceased Chhotu was recovered from Maldiha Dhar (river stream) and that it was noted at that time the eyes of the dead body and the tongue were protruding out. There were also signs of marks on the neck of the deceased Chhotu. The said part of the confessional statement as recorded by PW 9 cannot be said to straightaway implicate the appellant and the co-accused to the killing of the deceased. Leaving aside the rest of the part of the admission, the identity of the place at the instance of the appellant and the co-accused, as to where the dead body of the deceased was lying, which was exclusively within the knowledge of the appellant, was certainly admissible by virtue of the application of Section 8, read along with Section 27 of the Evidence Act.
18. In such circumstances, in the absence of any convincing explanation offered on behalf of the appellant-accused as to under what circumstances he was able to lead the police party to the place where the dead body of the deceased was found, it will have to be held that such recovery of the dead body, which is a very clinching circumstance in a case of this nature, would act deadly against the appellant considered along with rest of the circumstances demonstrated by the prosecution to rope in the appellant in the alleged crime of the killing of the deceased. Therefore, once we find that there was definite admission on behalf of the appellant by which the prosecuting agency was able to recover the body of the deceased from a place, which was within the special knowledge of the appellant, the only other aspect to be examined is whether the appellant came forward with any convincing explanation to get over the said admission. Unfortunately though the above incriminating circumstance was put to the appellant in the 30 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) Section 313 CrPC questioning where he had an opportunity to explain, except a mere denial there was no other convincing explanation offered by him.
56. Further more, the dead body was found burried/hidden under two stones on a lonely place with no movements of men and vehciles. Therefore, merely because the skeleton was seized from an open place, would not mean that it was not in the exclusive knowledge of the appellant Gyani.
57. It is next contended by the Counsel for the appellant that since, in the Lash Panchnama, Ex. P. 7, it is mentioned by the Panchas that the dead body appears to have been eaten by animals, therefore, it is clear that the deceased must have become pray of wild animals.
58. This submission made by the Counsel for the appellants is misconceived and cannot be accepted.
59. First of all, the skeleton was found hidden/burried under the stones. No animal can/would hide the skeleton under the stones, after eating the person. Further, in the post-mortem report, Ex. P.41, no animal teeth bites were found on the bones. In fact, no injury whatsoever was found on the bones. If a person or body is eaten by the animals, then the bones would necessary suffer teeth marks, but no such mark was found. So far as the opinion of the Panchas, at the time of preparation of Lash Panchnama is concerned, it appears that the Panchas had made certain remarks in a most casual manner. In the Lash Panchnama, Ex. P. 7, it is specifically mentioned that one skeleton is found burried/hidden under the stones. Then without 31 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) realizing that how the animals can hide the skeleton under the stones, a casual remark was made that it appears that the animals must have eaten the person. There was no reason for the panchas to form an opinion that the body must have been eaten by the animals. Be that as it may be. In the Lash Panchnama, only the opinion of the panchas is mentioned, whereas the actual cause of death can be deciphered only after the post-mortem report is received. As no injury on any bone was found, therefore, it is held that the abductee Brajesh Kumar did not become pray of animals, but in fact, he was killed and his dead body was buried under the stones.
60. Thus, it is held that the dead body of the deceased Brajesh was recovered on the disclosure statement made by the appellant Gyani and the appellant Gyani has not clarified as to how he was having special knowledge of location of dead body, specifically when the place is the top of the hill with no movement of men. The place was also not easily accessible, as the witnesses were required to walk for 2-3 Kms to reach to the place where the dead body was found.
61. So far as the involvement of Mahendra is concerned, it is submitted by the Counsel for the appellant, that in fact the police had prepared a forged letter after the arrest of the appellant Mahendra.
62. Considered the submissions made by the Counsel for the appellants.
63. The letter was produced by the complainant Rambabu on 15- 11-2007, which was seized vide seizure memo Ex. P.1, whereas 32 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) Mahendra was arrested on 24-2-2008 vide arrest memo Ex P. 19. Thus, it is clear that the letter Article A/Ex. P.49 was already seized much prior to arrest of Mahendra. Thus, there is no question of preparation of forged letter after the arrest of Mahendra.
64. Further, the letter has been found to be in the handwriting of the appellant Mahendra, which has been duly proved by A.K. Dass (P.W. 19) and the report is Ex. P. 63 and Ex. P.64.
65. The contents of Letter, Article A/Ex. P.49 reads as under :
jkeckcw rsjk yMdk gekjs ikl gS vkSj lgh lyker gS geus vkidks Qksu fd;k Fkk fd ges yMds ds cnys es 6 yk[k :i;s pkfg, oSls iSlks dk bURktke vc rd gks gh x;k gksxk vc ges 15-11-07 dks 'kke 8 cts ckadMs guqeku eafnj ds ihNs Bkdqj ckck ds bLFkku ij iSls pkfg, iSls feyus ds ckn ge rsjs yMds dks lgh lyker NksM nsaxs vkSj vxj T;knk gks'k;kjh djus dh dksf'k'k dh rks vki le> ldrs gS fd vUtke D;k gksxk iSls ysdj flQZ jkeckcw dks gh vkuk gS ge fdlh dk dqN ugh fcxkMsaxs D;ksafd ges flQZ iSlksa ls eryc gS
66. Thus, it is clear that Mahendra had specifically wrote that the abductee is in their possession, and they had already informed the complainant on phone about the ransom amount of Rs. 6 Lac. Thus, it is clear that the letter Article A/Ex. P.49 written by Mahendra is also a strong circumstance to show his complexity in the matter.
67. From the evidence, it is clear that after the son of the complainant went missing. The complainant informed Satish Kumar 33 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) Khatik (P.W.1), Jagdish (P.W 5), Moharpal (P.W. 6), Jagan (P.W. 7). The complainant also disclosed the number of mobile from which he was getting threatening calls, and that information proved to be one of the important link to reach to the appellants. Further more, after the letter, Article A/Ex. P.49 was left in the house of Rambabu (P.W.
2), he again immediately informed Jagdish (P.W. 5), as well as Moharpal (P.W. 6) and handed over the same to the police. Thus, all the circumstances which have been proved by the prosecution indicates towards the guilt of the appellants with definiteness as the chain of circumstances is complete.
68. The Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116 has held as under :
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 34 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) 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.
69. If the circumstances found proved against the appellants are considered in the light of the judgment passed in the case of Sharad Birdhichand Sarda (Supra), it is held that the guilt of the appellants has been proved beyond reasonable doubt
70. Accordingly their conviction under Section 364-A of I.P.C.,read with Section 11/13 of MPDVPK Act, under Section 302 of I.P.C. read with Section 11/13 of MPDVPK Act, and under Section 201 of IPC is hereby upheld.
71. As the minimum sentence for offence under Section 302 and 364-A of I.P.C. is life imprisonment, therefore, the sentence awarded by the Trial Court doesnot call for any interference.
72. Ex Consequenti, the judgment and sentence dated 18-5-2010 passed by Special Judge (MPDVPK Act) Shivpuri in Special Sessions Trial No. 36/2008 is hereby affirmed.
73. A report dated 16-8-2021, has been received from the office of Superintendent of Central Jail Gwalior that both the appellants were released on Parole by the State, but the appellants did not surrender on 1-10-2005 and they have 35 Gyanichandra & Anr Vs. State of M.P.(Cr.A. No. 481 of 2010) absconded. Accordingly, the Trial Court is directed to issue a perpetual warrant of arrest against the appellants, so that they can undergo the remaining jail sentence.
74. The record of the case be send immediately back to the Trial Court, along with the copy of this judgment for necessary information and compliance.
75. The appeal fails and is hereby dismissed.
(G.S. Ahluwalia) (Rajeev Kumar Shrivastava)
Judge Judge
ARUN KUMAR MISHRA
2021.11.25 18:55:09 +05'30'