Madhya Pradesh High Court
Najju vs State Of M.P. on 27 March, 2018
Author: Nandita Dubey
Bench: Nandita Dubey
1 Cr.A. No.494/1995 &
Cr.A. No.496/1995
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 494/1995
Appellant : Nanhelal
Vs.
Respondent : State of Madhya Pradesh
&
Criminal Appeal No. 496/1995
Appellant : Najju
1. Vs.
Respondent : State of Madhya Pradesh
For appellant Nanhelal in Criminal Appeal No.494/1995 :
Shri Ajay Tamrakar, Advocate as Amicus Curiae.
For appellant Najju in Criminal Appeal No.496/1995 :
Shri R.S.Shukla, Advocate as Amicus Curiae.
For the respondent/State: Shri A.N.Gupta,
Govt.Advocate.
PRESENT : Hon'ble Shri Justice S.K.Gangele
Hon'ble Smt. Justice Nandita Dubey
Arguments heard on : 21.03.2018
Judgment delivered on : 27.03.2018
Whether approved for reporting : Yes/No
Law laid down
Significant paragraph numbers :
JUDGMENT
As per Nandita Dubey, J.:
Criminal appeal Nos. 494/1995 and 496/1995 2 Cr.A. No.494/1995 & Cr.A. No.496/1995 arise out of the same incident and, therefore, heard and decided concomitantly.
2. These two appeals arise out of common judgment dated 10.11.1994 passed by First Additional Sessions Judge, Damoh in S.T. No.184/92, whereby the appellants have been found guilty for the offence punishable under Section 302 read with Section 34 of the Indian Penal Code and have been sentenced to life imprisonment .
3. As the sole appellant Baisakhu of Criminal Appeal No.495/95 expired, his appeal stand abated and consigned to record room vide order dated 9.1.2018 passed by this Court.
4. The prosecution case, in brief, is that on the intervening night of 11/12-07-92, the appellants along with other two co-accused assaulted and killed Suresh on account of a verbal altercation which happened two days prior to the incident. It is alleged that a verbal altercation took place between Nanhelal and deceased Suresh, when the deceased used abusive language,then Nanhelal hit the deceased with stick. Suresh thereafter made a complaint about the incident to his father Lakkhu who went to the house of Nanhelal calling explanation. It is further alleged that thereafter 3 Cr.A. No.494/1995 & Cr.A. No.496/1995 Nanhelal threatened Lakkhu that his son has abused him and one of these days he will suffer the consequences.
5. According to prosecution on 11.07.92, deceased Suresh had gone with his brother Hariram and neighbour Ramtu to watch Tajia procession. Hariram and Ramtu returned back to their house, but Suresh stayed back stating that he would come later. However, he did not return in the night. In the morning, a search was organized along with the neighbours. During the search Panchu Chamar found the dead body of Suresh lying face down in the Talaiya ki Khandaniya. They found that his right hand was severed from the wrist and missing.
6. Report (Ex.P/18) to this effect was lodged by Lakkhu, father of the deceased at Chowki-Imaliaghat, PS-Tejgarh. On the basis of this report, Marg was recorded and FIR (Ex.P/22) was registered. Panchnama of the dead body was prepared and the body was sent for postmortem. The accused persons were arrested on 13.07.92 and on the disclosure statement of Nanhelal (Ex.P/12), the severed hand of the deceased was recovered. Disclosure statement of Najju led to the recovery of Bichuwa (a dagger) whereas farsa and 4 Cr.A. No.494/1995 & Cr.A. No.496/1995 bamboo stick were recovered from Nanhelal, and vest from Prabhu. The seized articles were then sent for chemical examination. Dr. O.P.Dubey (PW.6) who conducted the autopsy found the following injuries on the person of the deceased :-
"(i) Multiple small abrasions on anterior aspect of left knee in size of 5"x4";
(ii) Multiple small abrasions on lower part of right thigh, knee and upper part of leg;
(iii) Amputation of right hand at the level of wrist cutting the carpal bone;
It was further observed in the postmortem report (Ex.P/16) that a police constable brought the detached hand during the time of postmortem and on examining the hand it was found that the same was part of the right forearm from where it was cut. The amputated hand was having lacerated wound 1/2"x1/4"x1/8" on back of thumb and lacerated wound 1/2"x1/4"x1/4" on posterior aspect of ring finger. He also opined that the severed wrist was of the deceased Suresh only.
7. After completion of the investigation, the charge sheet was filed against the accused persons. The prosecution in order to substantiate the charges against the accused persons examined as many as 17 witnesses. The principle witnesses are Dr. O.P.Dubey who conducted the postmortem on the body of the 5 Cr.A. No.494/1995 & Cr.A. No.496/1995 deceased, Sudra (PW.1) and Vishram (PW.4) who heard Nanhelal threatening the father of the deceased, Bhagwansingh (PW.2) and Trilok Singh (PW.9) before whom the accused persons made extra judicial confession, Lachhua (PW.14) who saw the deceased being taken by the accused persons.
8. The accused persons in their statements under Section 313 of Cr.P.C.denied the allegations and pleaded false implication.
9. The trial Court, after carefully scrutinizing the evidence on record found the appellants Nanhelal, Najju and Baisakhu guilty and convicted and sentenced them as aforesaid whereas Prabhu was acquitted for lack of evidence.
10. It is submitted by the learned counsel for the appellants that the trial Court has erred in convicting the appellants on the basis of extra judicial confession made to Bhagwansingh (PW.2) and Trilok Singh (PW.9). It is submitted by the learned counsel that extra judicial confession is a weak type of evidence and looking to the contradictions and improvements in the statements of aforesaid two witnesses PW.2 and PW.9, their testimony cannot be relied on. It is further urged that the seizure was faulty and not proved as on the 6 Cr.A. No.494/1995 & Cr.A. No.496/1995 memorandum of Nanhelal recovery was made from Baisakhu. He further contended that it was alleged that the deceased was last seen alive with the appellants, however, there is no such evidence on record, and in absence of any other corroborative piece of evidence, the conviction of the appellants on the basis of last seen theory is not sustainable in law. He lastly submitted that the case is based on circumstantial evidence and looking to the material inconsistency and discrepancies in the evidence of the witnesses, the trial Court has erred in convicting the appellants.
11. On the other hand, learned Govt. Advocate appearing for the State contended that the prosecution has established through evidence of Sudra (PW.1) and Vishram (PW.4) that appellants had threatened the father of deceased. It is further contended that extra judicial confession made before Bhagwansingh (PW.2) and Trilok Singh (PW.9) and the fact of recovery of severed hand of the deceased at the instance of the appellants and in absence of any explanation from them, the trial Court has rightly convicted the appellants.
12. We have heard the learned counsel for the 7 Cr.A. No.494/1995 & Cr.A. No.496/1995 parties at length and perused the record.
13. The prosecution case rests solely upon the circumstantial evidence. It is settled law that when a case is based on circumstantial evidence, the prosecution has to satisfy that the circumstances from which the conclusion of guilt is to be drawn should be fairly established and should be consistent with only the guilt of the accused.
In Raja alia Rajinder vs. State of Haryana (2015) 11 SCC 43, Hon'ble the Apex Court has observed thus :-
"10. As the factual matrix would show, the case of the prosecution entirely hinges on circumstantial evidence. When a case rests on circumstantial evidence, the Court has to be satisfied that :
(i) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(ii) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(iii) 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
(iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis 8 Cr.A. No.494/1995 & Cr.A. No.496/1995 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."
14. The trial Court has based the conviction of the appellants on the following :-
(i) Deceased Suresh was last seen alive with the appellants in night of 11.07.92;
(ii) Extra judicial confession made by the appellants before Bhagwansingh (PW.2) and Trilok Singh (PW.9);
(iii) Amputated hand of the deceased was recovered at the instance of the appellants;
(iv) The doctor opined that the detached hand brought by the police constable was the part of the right fore arm of the deceased from where it was cut.
(v) There was animosity and previous altercation between Nanhelal and deceased Suresh.
15. It is trite law that a conviction cannot be based solely on the circumstance of the last seen together with the deceased.
In Bodhraj vs. State of J & K (2002) 8 SCC 45, the Supreme Court has held that :-
"31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small 9 Cr.A. No.494/1995 & Cr.A. No.496/1995 that possibility of any person other than the accused being the author of the crime becomes impossible."
16. In the present case Panchu (PW.12) in conformity with his 161 Cr.P.C.statement (Ex.D/5) recorded on 12.07.92 has clearly stated that on the night of Tajia procession he went out to ease himself at around 11 pm in the night where he saw the four accused persons standing at the chowki near Talaiya. When he asked as to who was there, Baisakhu replied that they are taking the cattle. He has further stated that in the morning the dead body of deceased Suresh was found lying face down near Talaiya. Similarly Lachhua (PW.14) in conformity with his 161 Cr.P.C.statement (Ex.D/6) recorded on 12.07.92 has stated that he saw Suresh going with Nanhelal,Baisakhu, Prabhu and Najju on the night when he was returning home with his children after watching Tajia procession.
17. Ganesh (PW.15) in his 161 Cr.P.C.statement has stated that he saw the accused persons carrying someone towards Talaiya. According to him, Nanhelal and Prabhu were holding the hands of the person and Najju and Baisakhu were holding the legs. However, in his Court statement he has resiled from his 161 Cr.P.C.statement and had stated that he saw four 10 Cr.A. No.494/1995 & Cr.A. No.496/1995 persons standing at the Tekri but did not recognise them.He has been declared hostile, hence his statement cannot be relied upon.
18. The testimonies of Panchu (PW.12) and Lachhua (PW.14) in this regard are very natural, trustworthy and convincing. It is, thus, established that the time gap between the deceased last seen alive with appellants and the time when his dead body was found is not much. The doctor had also opined that the death had occurred 36-48 hours prior to the postmortem. Hence, the possibility of any person other than the appellants being perpetrator of crime becomes impossible.
19. As regards the extra judicial confession made by the appellants before Bhagwansingh (PW.2) and Trilok Singh (PW.9), it is well settled that extra judicial confession is a weak type of evidence and the Courts should view it with great care and caution.
20. In Vijay Shankar vs. State of Haryana (2015) 12 SCC 644, following the decision in Sahadevan vs. State of Tamil Nadu (2012) 6 SCC 403, the Supreme Court has observed that extra judicial confession is a weak piece of evidence and the Courts are to view it with great care and caution. For 11 Cr.A. No.494/1995 & Cr.A. No.496/1995 an extra judicial confession to form the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities. An extra judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
21. Bhagwansingh (PW.2) who was ex-sarpanch of the village, in his 161 Cr.P.C.statement (Ex.D/1) has stated that Nanhelal has confessed before him that he along with other co-accused has committed murder of Suresh. However, he made improvement in his Court statement and deposed that at around 9 am on 12.07.92 the accused persons came to his house and all of them confessed that they had made the mistake of committing murder of Suresh s/o Lakkhu and thrown the body in Talaiya. They asked him to save them. He had further deposed that when the police came the accused persons went away.
22. Trilok Singh (PW.9) in conformity of his 161 Cr.P.C.statement (Ex.D/2) has stated that at around 8 am in the morning of 12.07.92, Nanhelal, Prabhu, Baisakhu and Najju came to his house. Nanhe confessed that they had committed a mistake. Nanhe 12 Cr.A. No.494/1995 & Cr.A. No.496/1995 said that Suresh fought with them and made a complaint to his father, therefore, they had killed him. According to this witness, Nanhelal said that they took Suresh when he was watching Tajia and murdered him. It is also alleged that the accused persons asked for his help to save them.
23. Ajeem Khan (PW.17) has also corroborated that Trilok Singh (PW.9) has earlier informed him that the accused persons confessed before him that they had murdered Suresh son of Lakkhu.
24. In the present case, recovery of amputated hand was made in pursuant to the disclosure statement made by Nanhelal (Ex.P/12) ,Bichuwa (dagger) vide Ex.P/8, and Farsa and bamboo stick vide Ex.P/9 which has been proved by the seizure witnesses Bhagwansingh (PW.2) and Badri Prasad (PW.3).
25. The contention of the learned counsel that the recovery of the amputated hand was made from Baisakhu on the memorandum of Nanhelal is not correct. It is clear from Ex. P/4,P/5,P/6,P/7 and P/11 that all the accused persons disclosed about the place where they had hidden the amputated hand,and vide Ex.P/12 the hand was recovered at the instance of Nanhelal from under the stone.
13 Cr.A. No.494/1995 &Cr.A. No.496/1995
26. In State of Maharashtra vs. Damu (2000) 6 SCC 269, while dealing with the fundamental facet of Section 27 of the Evidence Act, the Court observed that the basic idea embedded in the said provision is the doctrine of confession by subsequent events, which is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. It further stated that the information might be confessional or non-inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information and, therefore, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum.
27. In the present case, recovery of amputated hand made pursuant to the information given by Nanhelal vide (Ex.P/4 and P/12) and Najju vide (Ex.P/11) was rightly accepted by the trial Court. More over, the appellants have not offered any explanation as to how did they know where the amputated hand was hidden. A specific query was put to the accused persons U/s 313 Cr.P.C. statement with regard to the recovery of amputated hand as question no. 21 and they had 14 Cr.A. No.494/1995 & Cr.A. No.496/1995 simply stated that "Jhooth hai" "Nahi Maloom".
28. In 2014 Cr.L.J. 1943 Rajkumar VS. State of M.P. the Supreme Court has observed :
"12. The accused has a duty to furnish an explanation in his statement under Section 313 Cr.P.C. regarding any incriminating material that has been produced against him. If the accused has been given the freedom to remain silent during the investigation as well as before the court, then the accused may choose to maintain silence or even remain in complete denial when his statement under Section 313 Cr.P.C., is being recorded. However, in such an event, the court would be entitled to draw an inference, including such adverse inference against the accused as may be permissible in accordance with law."
29. In (2012) 6 SCC 174 Munna Kumar Upadhyay @ Munna Vs. State of Andhya Pradesh the Supreme Court has observed that it is settled law that the statement under Section 313 of the Cr.P.C. is to serve a dual purpose, firstly, to afford to the accused an opportunity to explain his conduct and secondly to use denials of established facts as incriminating evidence against him. The Supreme Court has referred to the judgment in the case of (2008) 16 SCC 328 Asraf Ali Vs. State of Assam, wherein it has held :-
15 Cr.A. No.494/1995 &Cr.A. No.496/1995
21. Section 313 of the Code casts a duty on the Court to put in an enquiry or trial questions to the accused for the purpose of enabling him to explain any of the circumstances appearing in the evidence against him. It follows as necessary corollary therefrom that each material circumstance appearing in the evidence against the accused is required to be put to him specifically, distinctly and separately and failure to do so amounts to a serious irregularity vitiating trial, if it is shown that the accused was prejudiced.
22. The object of Section 313 of the Code is to establish a direct dialogue between the Court and the accused. If a point in the evidence is important against the accused, and the conviction is intended to be based upon it, it is right and proper that the accused should be questioned about the matter and be given an opportunity of explaining it. Where no specific question has been put by the trial Court on an inculpatory material in the prosecution evidence, it would vitiate the trial. Of course, all these are subject to rider whether they have caused miscarriage of justice or prejudice. This Court also expressed similar view in S. Harnam Singh v. The State (AIR 1976 SC 2140), while dealing with Section 342 of the Criminal Procedure Code, 1898 (corresponding to Section 313 of the Code). Non-indication of inculpatory material in its relevant facts by the trial Court to the accused adds to the vulnerability of the prosecution case. Recording of a statement of the accused under Section 313 is not a 16 Cr.A. No.494/1995 & Cr.A. No.496/1995 purposeless exercise."
30. Apart from these facts, the doctor had also confirmed that the amputated hand was the part of the right fore arm of the deceased from where it was cut. Bichuwa (dagger), farsa recovered from the appellants were sent for chemical examination but no blood was found on Bichuwa,and there is no report on record with regard to farsa having blood stained or not. However, that would not make any difference in view of the other evidence on record.
31. In Raja alia Rajinder vs. State of Haryana (supra), the Supreme Court has observed thus :-
"22. In a case based on circumstantial evidence, motive assumes great significance as its existence is an enlightening factor in a process of presumptive reasoning".
32. In the present case it has come in the evidence of Hariram (PW.10), Khillu (PW.11) and Lakkhu (PW.13) that 3-4 days prior to the incident an altercation happened between Nanhelal and Suresh, the deceased, on account of deceased singing some song and Nanhelal had beaten him with a stick. The deceased had made a complaint about the incident to his father Lakkhu (PW.13) who went and told Nanhelal's parents about it. Thereafter Nanhelal came and threatened Lakkhu (PW.13) of dire consequences. 17 Cr.A. No.494/1995 & Cr.A. No.496/1995 Sudra (PW.1) has deposed that when he was going towards his house, he crossed the house of Lakkhu where he over heard Nanhelal telling Lakkhu that, "
your son abused me and you made complaint to my parents, I will kill Suresh one of these days",and two days later body of Suresh was found lying in Talaiya.
Vishram (PW.4) had deposed that when he went to deliver wood to Durjan he saw Nanhelal using abusive language for Lakkhu and for this reason deceased Suresh fought with him. Nanhelal then threatened to destroy Lakkhu's family. It is pertinent to note that no cross-examination on this point was done from Sudra (PW.1) and Vishram (PW.4) and their statements had gone unrebutted.
33. From the aforesaid analysis, it is clear that the prosecution has successfully established that the accused persons had a motive and in pursuant to that they had taken the deceased along and murdered him. After considering the material on record and the preposition of law laid down by the Apex Court, it is apparent that the prosecution has firmly established the chain of evidence leading to the guilt of the appellants. The commission of the offence by the accused persons has been clearly established and the 18 Cr.A. No.494/1995 & Cr.A. No.496/1995 trial Court has rightly considered the statements of the witnesses and the documents on record, in recording a finding of guilt against the appellants. Therefore, we do not find any illegality or perversity in the finding of guilt recorded by the trial Court. Therefore, we affirm the same and dismiss the appeals accordingly.
34. It is informed that the appellant Najju of Criminal Appeal No.496/95 is on bail. His bail bonds shall stand cancelled and he is directed to be taken into custody forthwith to undergo the remaining part of jail sentence. Appellant Nanhelal of Criminal Appeal No.494/1995 is reported to have been absconded, and on 09.01.18 the office was directed to issue a perpetual warrant of arrest against him for his arrest as and where he is found. He is also directed to be taken into custody forthwith to undergo the remaining part of his jail sentence.
35. A copy of this judgment be also kept in the record of Cri.Appeal No. 496/95.
(S.K.Gangele) (Nandita Dubey)
JUDGE JUDGE
jitin
JITIN KUMAR Digitally signed by JITIN KUMAR CHOURASIA DN: c=IN, o=HIGH COURT OF MADHYA PRADESH JABALPUR, postalCode=482002, st=Madhya Pradesh, 2.5.4.20=e3d7370a824bba87727307977565201a90755d2ae918c CHOURASIA acf5ba57b88cf8f74ed, 2.5.4.45=0321004061C52C5AE022F36DBD6758159F0B5E2385EC 220D9FED9B36B1460B933D5D34, cn=JITIN KUMAR CHOURASIA Date: 2018.03.27 13:19:12 +05'30'