Madhya Pradesh High Court
Deenu @ Dinesh Parte vs The State Of Madhya Pradesh on 5 October, 2015
Author: N. K. Gupta
Bench: N. K. Gupta
1
Criminal Appeal No.1875/2007
Criminal Appeal No.1937/2007
Criminal Appeal No.1397/2008
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH
PRESENT : Hon'ble Shri Justice Santanu Kemkar.
Hon'ble Shri Justice N. K. Gupta.
CRIMINAL APPEAL NO.1875/2007
Pappu @ Satendra Rajput AFR
-VERSUS-
JUDGE
State of Madhya Pradesh
.................................................................................................
Shri A. P. Shah, Advocate for the appellant.
Shri Akhilendra Singh, G.A for the State.
.................................................................................................
CRIMINAL APPEAL NO.1937/2007
Deenu alias Dinesh Parte
-VERSUS-
State of Madhya Pradesh
.................................................................................................
Shri Siddharth Datt, Advocate for the appellant.
Shri Akhilendra Singh, G.A for the State.
.................................................................................................
CRIMINAL APPEAL NO.1397/2008
State of Madhya Pradesh
-VERSUS-
Pappu @ Satendra and two others
.................................................................................................
Shri Akhilendra Singh, G.A for the State.
Shri A. P. Shah, Advocate for respondent no.1.
Shri Siddharth Datt, Advocate for respondent no.2.
None for respondent no.3.
.................................................................................................
JUDGMENT
(Delivered on the 5th day of October, 2015) Per : N.K. Gupta, J.
These three appeals are related to the judgment dated 22.8.2007 passed by IIIrd Additional Sessions Judge, 2 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 Seoni in S.T. No.125 of 2006 therefore, they are being decided by the present judgment.
2. Pappu alias Satendra the appellant of Criminal Appeal No.1875/2007 and Deenu alias Dinesh appellant of Criminal Appeal No.1937/2007 have preferred the present appeals being aggrieved with the aforesaid judgment whereby, each of them has been convicted of offence under Sections 302, 364 and 201 of I.P.C and sentenced to life imprisonment with fine of Rs.500/-, five years rigorous imprisonment with fine of Rs.500/- and three years rigorous imprisonment with fine of Rs.500/-, respectively and default sentence has also been prescribed in case of non-payment of fine.
3. In Criminal Appeal No.1397/2008 the State has preferred the present appeal against the appellants Pappu alias Satendra, Deenu alias Dinesh and the respondent no.3 Sarika Patel against the judgment of acquittal passed by the trial Court relating to offence under Section 120-B of I.P.C.
4. Facts of the case in short are that the marriage of respondent no.3 Sarika Patel took place with the deceased Praveen on 8.5.2006. Sarika was posted as contractual Assistant Teacher Grade III in a School at Village Dungariya. The deceased Praveen was visiting Dungariya as and when it was required. On 9.7.2006 Sarika had to appear in D.Ed. Examination at School of Excellence, Kevlari and therefore, the deceased Praveen went on his motorcycle to Village 3 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 Dungariya and took his wife Sarika to Village Kevlari on motorcycle. At about 9.00 a.m in the morning Sarika went inside the school for her examination and the deceased Praveen along with his motorcycle remained outside the school. On completion of first paper when Sarika came out of the school, she found that motorcycle of deceased Praveen was lying in front of the school but Praveen was not present. At about 2.00 p.m again Sarika went inside the school for her second examination paper and at about 5.00 p.m she came back, but she found that motorcycle of the deceased Praveen was lying in front of the School, but Praveen was not present. Sarika stayed there up to 6.00 p.m. Thereafter, she informed her father Nathuram Patel (DW1). Nathuram Patel informed Ramaiyalal Patel (PW3), father of the deceased Praveen. On 10.7.2006 Sarika submitted a written missing report Ex.P/1 at Police Station Kevlari (District Seoni). Again on 11.7.2006 Ramaiyalal Patel (PW3) had lodged a complaint Ex.P/7 about his missing son Praveen.
5. On 12.7.2006 the Inspector S. K. Maravi interrogated the appellants Satendra alias Pappu and Deenu alias Dinesh and recorded memo under Section 27 of the Evidence Act Ex.P/11 and Ex.P/13 respectively. The appellants Satendra and Dinesh had confessed about the crime and they intimated about their clothes, weapons of offence etc. Such confession was done by the appellants 4 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 before Umesh Kumar Shrivas (PW7), Shiv Bharti (PW9) and Rajendra alias Raju (PW18). Thereafter, Inspector S. K. Maravi went to the place where the dead body of the deceased Praveen was lying. A memo Ex.P/16 of recovery of the dead body was prepared and the dead body was identified by Ramaiyalal (PW3) and one Kuber Singh on the basis of clothes and other articles found with the dead body. Dr. R. K. Rawat (PW21) who was posted at Community Health Centre, Kevlari was called to the spot to perform the post mortem. Dr. Rawat with the help of sweeper Guddu alias Santlal (PW16) performed post mortem on the body of deceased Praveen and gave his report Ex.P/31.
6. The body was highly decomposed and therefore, various injuries could not be ascertained. According to Dr. Rawat the time of death could be anytime within 2-7 days. However, one incised wound was found on the left side of the neck and all major blood vessels were found cut. There was a fracture on the right mandible bone. According to Dr. Rawat the deceased died due to injuries caused to him especially due to cut of major blood vessels on the neck and death of the deceased was homicidal in nature. Inspector S.K Maravi thereafter, registered a case and seized various articles from the appellants Satendra and Dinesh including their clothes, weapon of offence etc. and prepared seizure memo Ex.P/15 and P/14 respectively. He recorded evidence of various 5 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 witnesses and sent the seized articles to Forensic Science Laboratory for their forensic analysis. After due investigation a charge sheet was filed before the JMFC, Seoni who committed the case to the Court of Sessions and ultimately it was transferred to Third Additional Sessions Judge, Seoni.
7. Appellants Satendra , Dinesh and respondent no.3 Sarika Patel have abjured their guilt. Appellants Satyenda and Dinesh did not take any specific plea in the case. However, they have stated that they were falsely implicated. On the other hand Sarika Patel did not take any specific plea, but she examined the witnesses Nathuram Patel (DW1) and Teksingh Rajput (DW2) to show that she had good relations with the deceased and she had no connection with the appellant Satendra . She was interested to get her transfer from Dungariya and she was not at all involved in the crime. The Additional Sessions Judge after considering the prosecution's evidence acquitted all the accused persons from the charge of section 120-B of I.P.C, but convicted and sentenced the appellants as mentioned above.
8. Appellant Satendra of Criminal Appeal No.1875/2007 has filed an SLP (Criminal) No.21571/2014 for grant of bail and suspension of sentence. Vide order dated 7.11.2014 the Apex Court rejected his application with following observations :
"We see no reason to interfere with the impugned order. The special leave petition 6 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 is accordingly dismissed. Since the petitioner has already undergone nearly eight years of imprisonment, we request the High Court to make an endeavour to dispose of the appeal at an early date preferably within a period of one year from today."
Hence these appeals are finally heard out of turn.
9. We have heard the learned counsel for the parties at length.
10. The present case is dependent upon the circumstantial evidence. There is no eye witness in the case and therefore, it would be appropriate to deal with each circumstance one by one. The first circumstance in the case is that whether the death of the deceased was homicidal in nature? In this connection Ramaiyalal Patel (PW3) and Nathuram Patel (DW1) have stated that Sarika informed them that after leaving her at the School of Excellence the deceased Praveen disappeared. When Sarika came out after completion of her first examination paper the deceased was not present though his motorcycle was lying in front of the school. Again when she came back at about 5.00 p.m after completion of her second examination paper the deceased Praveen was missing and his motorcycle was lying in front of the school and therefore, on the next day Sarika had lodged a written missing report Ex.P/1. Again on the third day Ramaiyalal Patel (PW3), father of the deceased Praveen, had lodged a complaint Ex.P/7 7 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 about missing of Praveen. It is also clear from the evidence of the parties that dead body of the deceased was found near a forest road and it was recovered by Inspector S. K. Maravi with a recovery memo Ex.P/16. It is also admitted that body was putrefied and it could not be identified by the face but with articles like clothes of the deceased, a watch, driving license, three passport size photographs, key of the motorcycle and sandal found with the dead body, the deceased Praveen could be identified. None of the party has challenged the identification of the dead body and therefore, it was established that the dead body recovered by Inspector S. K. Maravi was of the deceased Praveen.
11. Dr. R. K. Rawat (PW21) after performing the post mortem on the body gave a report Ex.P/13. According to him the deceased would have died due to various injuries caused to him. He found an incised wound on the left neck of the deceased Praveen. Various major blood vessel of that place were found cut. One fracture was also found on his right mandible bone. According to Dr. Rawat death of the deceased Praveen was homicidal in nature. The deceased would have died within 2-7 days. The information given by Dr. Rawat has not been challenged by any of the party in the case and therefore, it is proved that the death of the deceased Praveen was homicidal in nature.
8
Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008
12. The second circumstance relates to motive of the accused persons. Such motive as alleged by the prosecution falls in two different categories. It is alleged that the accused Sarika was in love with the appellant Satendra and she gave a sum of Rs.5000/- to the appellant Satendra to kill the deceased Praveen and thereafter, the appellant Satendra with the help of appellant Dinesh killed the deceased. This part of motive also relates to accused Sarika for offence under Section 120-B of I.P.C. Second part of motive, allegedly is that Sarika told the deceased Praveen to bring a pass book of some scheme from the appellant Satendra and when the deceased Praveen went to ask for the pass book Satendra denied to deliver the same and ultimately he gave the pass book to the deceased Praveen by throwing the same and therefore, there was enmity between Satendra and the deceased Praveen. So far as the first part of motive is concerned the prosecution has examined so many witnesses.
13. Out of them one Yashwant Kumar (PW4) was examined to show that uncle of the appellant Satendra asked the witness Yashwant Kumar about the residential place of Nathuram Patel (DW1), father of Sarika so that a talk relating to proposed marriage of Sarika and Satendra could be done. However, Yashwant Kumar has accepted that such incident took place one month prior to the marriage of Sarika. According to Ramaiyalal Patel (PW3) the negotiations relating 9 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 to marriage of Praveen and Sarika were going on for last one year and thereafter the marriage was performed peacefully. It was not indicative from the behavior of Sarika that she was in love with someone else or she was not ready to marry the deceased Praveen. When the witness Yashwant Kumar was asked in detail then he could not state the name of that uncle of the appellant Satendra, who came to enquire about the address of Nathuram Patel. Yashwant Kumar is a Pan Shop Vendor and with so many customers and visitors, he could not possibly remember about a particular customer who came to his shop, that too for so many months till the date of his statement. Still if uncle of appellant Satendra went to the house of Sarika for negotiations relating to marriage of Sarika with the appellant Satendra then such a fact does not indicate that Sarika was in love with the appellant Satendra or she was an unwilling party to marry with the deceased Praveen.
14. It was for the prosecution to prove that after her marriage with the deceased Praveen, she was interested in killing her husband because she was in a love affair with the appellant Satendra. In this context the prosecution has examined Sukchain (PW5), Smt. Indira Uikey (PW6), Principal of the School where Sarika was working at Dungariya, Manilal (PW8) and Nemi Rajput (PW14) but the witnesses did not confirm about any relation or meeting of the accused Sarika with the appellant Satendra. Sukchain (PW5) has turned 10 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 hostile whereas, Smt. Indira Uikey did not say anything about the relation of the accused Sarika with the appellant Satendra. Manilal (PW8) has turned hostile whereas, Nemi Rajput (PW14) has stated that Sarika resided in the house of one Gumrao Singh but he had no knowledge that Sarika ever met with the appellant Satendra in that house. Principal Smt. Indira Uikey has denied that the appellant Satendra was meeting with the accused Sarika in the school. Hence, the prosecution has failed to prove that the accused Sarika had any relation with the appellant Satendra.
15. It was alleged against the accused Sarika that she had given a sum of Rs.5000/- to the appellant Satendra to kill the deceased Praveen. In this connection the prosecution has proved a memo under Section 27 of the Evidence Act Ex.P/11 given by the appellant Satendra in which it was told that he took a sum of Rs.5000/- from the accused Sarika and he gave a sum of Rs.500/- to the appellant Dinesh and he gave a statement that he was ready to produce the remaining sum of Rs.4500/- and thereafter, a sum of Rs.4500/- was recovered by Inspector S. K. Maravi with the seizure memo Ex.P/15. However, in this connection a judgment passed by the Apex Court in the case of "Babboo Vs. State of Madhya Pradesh"
AIR 1979 SC 1042 may be referred in which it is held that a very little portion of memo under Section 27 of the Evidence Act is admissible. It is observed in that judgment that the 11 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 first part of the memo that the accused assaulted with a particular weapon would be inadmissible because it hits the provision of Section 25 of the Evidence Act whereas the discovery of the weapon may be admitted. Hence. In the light of aforesaid judgment in memo Ex.P/11 only that part is admissible in which the appellant Satendra has stated that he kept a sum of Rs.4500/- in cash box of his shop. Umesh Kumar Shrivas (PW7) a witness of memo Ex.P/11 and seizure Memo Ex.P/15 has accepted that a sum of Rs.4500/- was handed over by the appellant Satendra to the Inspector S. K. Maravi from the cash box of his shop. If the evidence of Inspector S. K. Maravi and Umesh Shrivas is accepted as it is then it was proved that the appellant Satendra gave a sum of Rs.4500/- to the Police from the cash box of his shop, but it was for the prosecution to prove that such sum was given by the accused Sarika to the appellant Satendra.
16. The basis of assumptions by the Police regarding motive are contradictory. On one hand it is alleged that the appellant Satendra was in love with the accused Sarika and on other hand it was alleged that the appellant Satendra took a sum of Rs.5000/- to kill the deceased Praveen. If the appellant Satendra was in a love affair with the deceased Sarika then he could kill the deceased Praveen on his own to marry the accused Sarika thereafter and in that case it was in his own interest to kill the deceased Praveen and there was no need for 12 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 him to take a sum of Rs.5000/- from the accused Sarika and if he was not in a love affair with the accused Sarika then no reason has been shown by the prosecution as to why the accused Sarika selected the appellant Satendra for murder of her own husband Praveen.
17. Ramaiyalal (PW3), father-in-law of the accused, Sarika has accepted that Sarika was already employed in the School of Dungariya prior to her marriage. She was married with the deceased Praveen without any hesitation or any denial. After her marriage she was visiting Village Mand where Praveen and Ramailyalal were residing. At Dungariya, the place of posting of the accused Sarika, she kept her grand mother with her and Ramaiyalal was readily sending his wife to stay with the accused Sarika at Dungariya so that she could be helped. Ramaiyalal has also accepted that Sarika had told about her problems at Dungariya when she was scared of the place due to some antisocial elements and she was also interested to get her transfer from Village Dungariya. The most important admission was done by witness Ramaiyalal that the accused Sarika did not get her salary for 4-5 months and therefore, he gave a sum of Rs.1000/- to the accused Sarika on credit so that she could prosecute her life at Village Dungariya. In such circumstances, the prosecution could not prove that the accused Sarika was in a position to give a sum of Rs.5000/- to the appellant Satendra for killing of her husband Praveen. 13
Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008
18. On the basis of the evidence given by Ramaiyalal (PW3), Manoj Kumar (PW1) and Vishnu Prasad Tekam (PW2) relations of the accused Sarika were good with the deceased Praveen and his family members. No incident of any quarrel took place between them. Ramaiyalal Patel (PW3), father-in- law of accused Sarika, gave some money to Sarika so that she could live comfortably at Village Dungariya. No witness of Village Dungariya has stated that the accused Sarika ever met with Satendra during her posting at Dungariya. Nathuram Patel (DW1) has submitted some documents to show that the accused Sarika was interested to get her transfer away from Village Dungariya. If she was interested in the appellant Satendra then she could be interested to continue with her posting at Dungariya. Hence, neither it is proved that she was interested to get her husband Praveen to be killed nor she had any sum so that she could give a sum of Rs.5000/- to the appellant Satendra for killing of her husband Praveen. The trial Court has rightly acquitted all the accused persons from the charge of Section 120-B of I.P.C.
19. So far as the second part of motive is concerned, it is alleged that Sarika was a Secretary of Parent & Teachers Association of that School and Sannilal was President of that Association. The payments of construction done in that scheme could be made with the joint signature of Sannilal and Sarika. It is alleged that Sarika sent the deceased Praveen to 14 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 get the pass book of the transaction from the appellant Satendra, who denied to give that pass book to the deceased Praveen and thereafter, he threw the pass book upon the deceased Praveen with a threat. However, no witness could be examined by the prosecution to prove such allegation. Ramaiyalal (PW3) has stated that Praveen told him about such facts. However, such statement of Ramaiyalal can not be admitted for proof of these facts because those are not admissible under Section 32 of the Evidence Act. Also in the complaint Ex.P/7 Ramaiyalal has narrated the story relating to quarrel between Sannilal and the deceased Praveen. It was not mentioned in the document Ex.P/7 that a quarrel relating to handing over the pass book took place between the appellant Satendra and the deceased Praveen. Sannilal was not examined by the Police to show that he gave the pass book to the appellant Satendra. Similarly, no document has been filed to show that contract of such construction was given to the appellant Satendra and he had received the pass book from Sannilal, the President of Parents Teachers Association. On the other hand Smt. Indira Uikey (PW6) has produced that pass book to the Police and it was seized by a seizure memo Ex.P/9. Smt. Indira Uikey was never asked as to whether the pass book was ever handed over to the appellant Satendra. She has accepted that the pass book was not available and when it was demanded from Sannilal he assured that it will be 15 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 given. Smt. Indira Uikey has denied that the work of construction of lavatory was given to the appellant Satendra. She has also stated that at the time of alleged quarrel, construction was not complete and therefore, there was no question of payment of any amount to the Contractor. Under these circumstances, the prosecution could not prove that any quarrel took place between the deceased Praveen and the appellant Satendra. Hence, the prosecution could not prove any motive with the appellants or the accused Sarika to kill the deceased Praveen.
20. It is the settled view of the Apex Court that motive is not an essential ingredient in a chain of circumstantial evidence to prove a case of murder. Sometimes no one can imagine about the motive to kill the person and therefore, if motive is proved then it can be considered as an additional ingredient in chain of circumstantial evidence, but if chain is not complete then absence of motive shall also give a negative effect while convicting the accused persons. The next circumstance alleged against the appellants Satendra and Dinesh is that the deceased was seen with the appellants soon before the incident. The learned counsel for the appellants has submitted that the facts of last seen together should be proved so as not to leave any time gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead. Such time gap should 16 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 be so small that possibility of any person other than the accused being the author of the crime becomes impossible. Reliance has been placed on the judgment passed by the Apex Court in the case of "Bodhraj alias Bodha and others Vs. State of Jammu & Kashmir) [(2002) 8 SCC 45] and "Sudhash Chand Vs. State of Rajasthan" [(2002) 1 SCC 702] in which it is held that there should not be much time gap between the point of time when the accused and the deceased were seen last alive and when the deceased was killed. In the present case according to Dr. Rawat (PW21) the dead body of the deceased was much putrefied and therefore, according to Dr. Rawat he would have died within 2-7 days from the date and time of post mortem. Post mortem was done on 12.7.2006 and therefore, the deceased would have died in between 5.7.2006 to 10.7.2006. It was apparent that the deceased Praveen took the accused Sarika on his motorcycle so that she could appear in her examination at Excellence School, Kevlari and therefore, the deceased was found alive on 9.7.2006 upto 10.00 a.m. Hence, it is possible that his death was caused in between at about 10.00 a.m of 9.7.2006 and 10.7.2006. Hence, it is possible that the culprit would have taken the deceased Praveen on 9.7.2006 and the deceased would have been killed on the same day. Hence, in the present case, there is no such time gap between the fact of last seen and the death of the deceased.
17
Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008
21. However, it was for the prosecution to prove the fact of last seen by believable witnesses. The prosecution has examined one Sarpanch Vishnu Prasad Tekam (PW2), Ashok (PW10) and Prakashchand Jhangela (PW11) to prove the fact of last seen. If evidence of Vishnu Prasad Tekam is considered then it would be apparent that he gave the statement about the entire story as told by Ramaiyalal Patel and his evidence is nothing, but a hearsay evidence which is not admissible. He did not claim that on 9.7.2006 he was present in front of the Excellence School where the alleged talk between the deceased Praveen and the appellants took place. The case diary statement Ex.D/1 of the witness Vishnu Prasad Tekam was recorded on 9.9.2006 i.e. two months after the incident. When Vishnu Prasad Tekam did not claim that he saw the deceased Praveen and the appellants in a hotel then his hearsay evidence does not give any support to the prosecution's story. Witness Ashok (PW10) has stated that, in month of July at about 9.30 a.m the deceased Praveen went to his shop to take Gutka and a dispute took place for payment of a lesser price. Thereafter, on the second day Ashok identified the person who visited his shop by viewing his photograph shown by the Police. However, in statement of Ashok he did not mention that the deceased Praveen was accompanied by either of the appellants. Hence the evidence given by Ashok does not connect the appellants with the deceased Praveen. 18
Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 Evidence given by Ashok cannot be considered as an evidence of last seen between the deceased Praveen and the accused persons.
22. So far as the statement of Prakashchand Jhangela (PW11) is concerned, it suffers with several drawbacks. He has claimed that when he was going to his house from the Police Station he saw the appellants Satendra and Dinesh along with the deceased Praveen. They were present in Ashok Lodhi's hotel and a talk took place between them that Satendra told the deceased Praveen that Dinesh wanted to purchase a motorcycle and if Praveen helps in such purchasing then such purchasing would be done within two hours and they could come back within two hours. Thereafter, the appellants Satendra and Dinesh took the deceased Praveen on the motorcycle driven by Satendra towards Ugli. If case diary statement Ex.D/3 of this witness is examined then he did not claim in his case diary statements that he went inside the hotel of Ashok Lodhi. On the contrary in case diary statement Ex.D/3 he has stated that two unknown persons came on a motorcycle and took one person who was standing near a motorcycle to hotel of one Jain and thereafter, they went to the Pan Shop of Ashok Lodhi and then they went on a Victor Motorcycle towards Ugli. According to the case diary statement of Prakashchand Jhangela (PW11) the alleged three persons went inside the hotel of one Jain and it is not claimed 19 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 by him that he went inside the hotel and heard their talk. He has alleged that those three persons went to the Pan Shop of Ashok Lodhi and thereafter, they went on a motorcycle towards Ugli. Hence Prakashchand Jhangela (PW11) did not claim in his case diary statement Ex.D/3 that he heard about the talk which took place between those three persons and therefore, his claim before the trial Court that the appellant Satendra told the deceased Praveen to visit him for the purchase of motorcycle is nothing but an after thought explanation given by Prakashchand Jhangela (PW11) to establish that the appellants had taken the deceased along with them.
23. The second draw back in the statement of Prakashchand Jhangela (PW11) is that neither the deceased Praveen nor the appellants Satendra and Dinesh were known to him. In case diary statement ExD/3 he gave the version relating to one unknown person and other two unknown persons. He has accepted in para 11 of his statement that the deceased Praveen was not known to him but he has claimed in para 7 of his statement that the appellants Satendra and Dinesh were known to him prior to the incident. If the appellant Satendra and Dinesh had taken the deceased Praveen in front of Prakashchand Jhangela (PW11) then he would have mentioned the name of Satendra and Dinesh in his case diary statement Ex.D/3 and therefore, according to the statement of Prakashchand Jhangela (PW11) the deceased 20 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 Praveen was taken by two unknown persons and not by the appellants who were known to him. Thirdly, he has accepted that while going to his house he has to pass over bus station and school road. He has accepted that Gram Pachayat Complex would not be in his way while going to his house then he could not see the motorcycle of the deceased lying in front of Panchayat Complex. If he would have gone through the road of Panchayat Complex he could not see the culprit and the deceased Praveen who were standing on the school road. Surprisingly upon the story of witness Prakashchand Jhangela (PW11) regarding deceased Praveen being taken by the appellants Satendra and Dinesh to Inspector S. K. Maravi (PW15) and Inspector S. K. Maravi did recover the motorcycle of the deceased Praveen which was lying in front of Excellence School on the same very day. Prakashchand Jhangela (PW11) has claimed that motorcycle was collected by Inspector S. K. Maravi on the same day and it was taken to the Police Station. However, if seizure memo Ex.P/21 is perused then motorcycle of the deceased Praveen was seized on 10.7.2006 and no time of seizure has been mentioned on the seizure memo Ex.P/21.
24. It is accepted by the witness Prakashchand Jhangela that the deceased Praveen was not known to him. The deceased Praveen was not residing at Village Dungariya along with the accused Sarika. The accused Sarika was not resident of Village Kevlari and therefore, when Praveen visited 21 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 along with Sarika to Village Kevlari so that she could appear in the examination then the witness Prakashchand Jhangela has no opportunity to confirm that the motorcycle which was lying in front of the school was of Madam Sarika or her husband. Prakashchand Jhangela did not claim that he was present in front of the school when the deceased Praveen dropped his wife Sarika at the school and therefore, he had no reason to part with the information about motorcycle. Hence, statement given by Prakashchand Jhangela that motorcycle of the deceased Praveen and Sarika was lying in front of the school indicates that he was giving his version on the basis of the facts informed to him by Inspector Maravi.
25. It is pertinent to note that the witness who was a Home Guard Sainik working at Police Station, Kevlari was available at Police Station on 9.7.2006 as well as after 12 th July, 2006 but his case diary statement Ex.D/3 was recorded on 15.7.2006. Prakashchand Jhangela has given an explanation that he went to Seoni along with the S.D.O.P and he came back on 12.7.2006 and therefore, he was not available for his evidence to be recorded. According to him he told about the fact of last seen to the Inspector S. K. Maravi on 9.7.2006 and he has admitted in the cross examination that Inspector S. K. Maravi called the appellants for interrogation on 9.7.2006 itself. The statement given by Prakashchand Jhangela appears to be a falsehood because such a fact has not been told by him 22 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 in his case diary statement Ex.D/3. If Inspector S.K. Maravi would have received an information on 9.7.2006 that the deceased Praveen went with appellant Satendra and Dinesh and he would have called the appellants on the evening of 9.7.2006 then the crime would have been traced at the most on 10.7.2006 but if the conduct of Inspector S. K. Maravi is accepted then on 10.7.2006 he received a missing report Ex.P/1 lodged by the accused Sarika. Again on 11.7.2006 he received a missing report Ex.P/7 given by Ramaiyalal (PW3), father of the deceased. If Inspector S. K. Maravi had knowledge on 9.7.2006 that the deceased Praveen went with the appellant Satendra and Dinesh then he would have informed such a fact to the father of the deceased Ramaiyalal and Ramaiyalal would not have shown his doubt upon Sannilal, the President of Guardian and Teachers Association of the School Durgariya.
26. Under these circumstances, the testimony of Prakashchand Jhangela appears to be false. If he saw the appellants taking the deceased Praveen with them on 9.7.2006 then he would have told about such a fact to the Inspector Maravi on the same day. If he pointed out that motorcycle of the deceased Praveen was lying in front of the school, then it would have been taken to the Police Station on the same very day however, looking to the seizure memo Ex.P/21 motorcycle was seized after filing of missing report Ex.P/1. If Inspector 23 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 S.K. Maravi was making an enquiry about missing of the deceased Praveen then statement of Prakashchand Jhangela could be recorded in that missing enquiry at least on 10.7.2006 when he was available at the Police Station. If he went with the S.D.O.P to the District Head Quarter, Seoni then he was available on 12.7.2006 and thereafter, thus no reason has been shown by the Inspector S. K. Maravi as to why the statement of the witness Prakashchand Jhangela was not recorded before 15.7.2006. Also if the witness Prakashchand Jhangela would have given a substantial information then it would have been written in his case diary statement Ex.D/3 specifically and also Inspector S.K. Maravi would have acted upon his information on 9.7.2006 itself. On the contrary Inspector S.K. Maravi took steps to enquire about the missing report on and after 12.7.2006.
27. On the basis of the aforesaid discussion it is clear that the statement given by Prakashchand Jhangela is not believable. He is a prepared witness prepared by Inspector S.K. Maravi. Hence, the prosecution has failed to prove beyond doubt that the appellants Satendra and Dinesh abducted the deceased Praveen or they were seen with the deceased Praveen soon before the incident of his murder.
28. Next circumstance which is alleged by the prosecution is recovery of weapons and clothes of the appellants worn by them at the time of incident. In this 24 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 connection the Inspector S. K. Maravi (PW19) has recorded a memo under Section 27 of the Evidence Act of the appellants Satendra and Dinesh as Exs.P/11 and P/13 respectively. It is claimed that the dead body of the deceased was recovered on the basis of memo given by these two appellants. In support of Inspector S. K. Maravi three witnesses Umesh Kumar Shrivas (PW7), Shiv Bharti (PW9) and Press Correspondent Rajendra @ Raju (PW18) were taken as witness on aforesaid memo. Out of them Rajendra @ Raju has turned hostile whereas, no question was asked to witness Shiv Bharti (PW9) before the trial Court relating to memo Exs.P/13 to P/15. Umesh Kumar Shrivas (PW7) has stated about the confessions done by the appellants Satendra and Dinesh. However, by bare perusal of memo Ex.P/11 and P/13, it would be apparent that the appellants Satendra and Dinesh gave the description about receiving of Rs.5000/- from the accused Sarika and giving of Rs.500/- to the accused Dinesh and they informed about the fact where they kept their clothes and weapons of the offence but, in the text of entire memo given by the appellants Satendra and Dinesh, it was not mentioned that they will show the place where they killed the deceased or dead body was lying. Hence, the dead body of the deceased cannot be said to be recovered on the information given by appellants Satendra or Dinesh.
25
Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008
29. If the provision of Section 27 of the Evidence Act is examined then it is a proviso to Sections 24 and 26 of the Evidence Act. It is provided in Section 27 of the Evidence Act that if in consequence of any information given by the accused in custody if any new fact is discovered then such information whether it amounts to a confession or not, is admissible and it may be proved. Hence, for application of Section 27 of the Evidence Act, it is necessary for the accused to give an information relating to a new fact. By perusal of memo Exs.P/11 and P/13 under Section 27 of the Evidence Act given by the appellants Satendra and Dinesh respectively, it would be apparent that they did not give any information about the dead body of the deceased Praveen and therefore, it cannot be said that the dead body was recovered on information given by the appellants Satendra and Dinesh. Inspector S. K. Maravi (PW19) has stated that he started his proceedings of enquiry and investigation on 12.7.2006 at about 7.20 a.m when he recorded the memo Ex.P/11 of the appellant Satendra. Inspector S. K. Maravi could not explain as to how he got the information that the deceased Praveen was killed and the appellants Satendra and Dinesh were the culprits. The conduct of Inspector Maravi as proved by himself indicates that he did not take any step when the information of last seen was given by the witness Prakashchand Jhangela (PW11) in the period between 9.7.2006 and 11.7.2006. He started his 26 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 proceedings by recording the memo under Section 27 of the Evidence Act given by the appellant Satendra. No explanation was given by Inspector S. K. Maravi as to why he started the interrogation of the appellants so confidently so that he had called Ramaiyalal and all his co-villagers present at Kevlari on the day when interrogation was initiated.
30. In this context if evidence of Ramaiyalal Patel is perused then in para 13 of his statement he has stated that he went to take a dip in the river at about 6.00 a.m in the morning and one Constable came to that place with the information that his son has been killed and the Inspector was calling him immediately and thereafter, he along with other co-villagers went to the Police station. The witness Umesh Kumar Shrivas (PW7) who was also a witness of memo Exs.P/11 and P/13 has accepted that when he was bathing in a river along with Ramaiyalal such intimation was received and they were called to the Police Station. Memo under Section 27 of the Evidence Act given by the appellants were recorded after arrival of Umesh Kumar Shrivas (PW7). According to the prosecution a memo Ex.P/11 under Section 27 of the Evidence Act was given by the appellant Satendra on 12.7.2006 at about 7.20 a.m but the information which was sent by Inspector S.K. Maravi to Ramaiyalal and Umesh Kumar Shrivas prior to recording of that memo, that the dead body of the deceased Praveen was traced and those witnesses were immediately called to the 27 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 Police Station. When a missing report was lodged by Ramaiyalal and Inspector S. K. Maravi was making an enquiry in persuance of that missing report then he could know about the dead body of the deceased when an information was given by the accused persons, but, the message which was sent by Inspector S.K. Maravi to Ramaiyalal and Umesh Kumar Shrivas, clearly indicates that Inspector S.K. Maravi got a confirmed news that Praveen was killed and his body was lying at a particular place. Without getting any confirmatory news about the dead body of the deceased Praveen such message could not be sent by Inspector S.K. Maravi to the witnesses that the deceased Praveen was killed. The witness Umesh Kumar Shrivas (PW7) has accepted in para 19 of his statement that he was taken to the spot in a Police vehicle where the dead body was lying and the vehicle was stopped on the forest road where the dead body was lying only 2-3 ft. away. Such evidence given by Umesh Kumar Shrivas indicates that before taking the accused persons to the spot the Police already knew where the dead body was lying and therefore, Inspector S. K. Maravi did not indicate in memo Exs.P/11 and P.13 that the appellants Satendra and Dinesh would show the location of the dead body.
31. When a fact which is already in knowledge of the Police is repeated by the accused then it cannot be said that such statement given by the accused is again admissible under 28 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 Section 27 of the Evidence Act. In this context the judgment passed by the Apex Court in the case of "Vijendra Vs. State of Delhi"[(1997) 6 SCC 171] may be referred in which it is held by the Apex Court that where the fact has already been discovered any statement relating to its further discovery would not be admissible in evidence. Hence, when Inspector S. K. Maravi has already received an information about the death of the deceased Praveen and the place where his dead body was lying then by the memo Exs.P/11 and P/13 it cannot be said that the dead body was recovered on information given by the appellants. The prosecution has also given stress on the evidence given by Manoj Kumar, Ramaiyalal, Umesh Kumar Shrivas etc. that the appellants Satendra and Dinesh told them at the spot that they killed the deceased Praveen and the dead body was lying at that place. However, the evidence of such witnesses cannot be considered as an extra judicial confession. The appellants Satendra and Dinesh were in the police custody and if they had told anything in presence of the Police then their statement made before the witnesses other than Police officials cannot be treated as an extra judicial confession. In this connection a judgment passed by the Rajasthan High Court in the case of "Ramchandan Vs. State of Rajasthan"
(2003 C.R.L.J 2485) may be referred in which it is held that a confession which was made by the accused before Press Reporters while in police custody in presence of the 29 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 investigation officer cannot be proved against the accused in view of Section 26 of the Evidence Act. Hence, the statement of Ramaiyalal, Manoj Kumar and other witnesses on that count are not admissible in the present case.
32. Learned counsel for the appellants have also submitted that if the dead body of the deceased was recovered on the information given by the accused then it is not a sufficient evidence against the accused. Reliance has been placed on the judgment passed by the Apex Court in the case of "Bakshish Singh Vs. State of Punjab" (AIR 1971 SC 2016) and "Kanbi Karsan Jadav Vs. State of Gujarat" (AIR 1966 SC 821) in which it is held that the accused would have given an information and dead body was discovered on that information then it is not a conclusive proof against the accused. Other circumstances are to be considered by the Court to confirm as to how they received the information about the dead body. In the light of the aforesaid judgments the other circumstances are to be considered to convict the appellants for offence under Sections 364 or 302 of I.P.C, but in the present case, it is not established that the dead body was recovered on information given by the appellant Satendra or Dinesh.
33. Inspector S. K. Maravi (PW15) has stated about a memo Exs.P/11 and P/13 given under Section 27 of the Evidence Act by the appellants Satendra and Dinesh 30 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 respectively and also about consequential seizure Exs. P/14 and P/15. However, the witness Rajendra alias Raju (PW18) a Press Correspondent has turned hostile whereas, no question about the aforesaid documents was asked by the prosecution when the witness Shiv Bharti was examined before the trial court. The witness Umesh Kumar Shrivas (PW7) has confirmed about the documents Exs.P/11, P/13 to P/15, but when he was asked as to whether the house of Dinesh was single storied or double storied, he could not answer the question. He has stated that he reached to the house of Dinesh at about 4.00-5.00 p.m and therefore, due to darkness he could not see the position of the house of the appellant Dinesh. The seizure took place in the month of July and at about 4.00 to 5.00 p.m, before sunset and he could not deny about having seen the house, its colour or single or double storey if any. Again when he was asked about the place where the dagger was recovered from Dinesh then he replied that he was standing in the courtyard and the appellant Dinesh and Satendra went inside the house and brought the dagger and clothes. His version is contradictory to the seizure memo Ex.P/14. Similarly, he could not give the appropriate description relating to the seizure from the appellant Satendra. He stated in an omnibus manner that Satendra gave a sum of Rs.4500/- from the cash box of his shop, but he did not state 31 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 specifically that for recovery of the clothes of Satendra he went to the house of the appellant Satendra.
34. After considering the evidence of the witness Umesh Kumar Shrivas, who was the neighbor of the deceased Praveen at Village Mand, it appears that Inspector S. K. Maravi completed the procedure of recovery at Police Station Kevlari and therefore, Umesh Kumar Shrivas could not know about the house of the appellants Satendra and Dinesh. Hence, the witnesses Umesh Kumar Shrivas, Shiv Bharti and Rajendra alias Raju created a doubt in the statement of Inspector S. K. Maravi that clothes and weapons were seized from the appellants Satendra or Dinesh. In this context the report of Forensic Science Laboratory Ex.P/38 is important. No blood was found on the clothes as well as weapons recovered from the appellants Satendra and Dinesh and therefore, recovery of clothes and weapons recovered from the appellants Satendra and Dinesh loses its evidentiary value.
35. On the basis of the aforesaid discussion, it is apparent that prosecution could not prove its case beyond doubt. Chain of circumstantial evidence is broken. The prosecution could not prove that the accused Sarika had any reason to get her husband killed. No motive of the appellants Satendra and Dinesh could be proved to kill the deceased Praveen, fact of last seen together between the appellants Satendra, Dinesh and the deceased Praveen could not be 32 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 proved. No enmity between them is proved. The prosecution could not prove that the dead body of the deceased was recovered from information given by the appellants Satendra and Dinesh. If recovery of clothes and weapons from the appellants Satendra and Dinesh is accepted as it is then no blood stain was found either on clothes of the appellants or weapons recovered from them. Hence the appellants Satendra and Dinesh cannot be convicted of offence under Section 364 or 302 of I.P.C. In this connection the judgment passed by the Apex Court in the case of Bakshish Singh (supra) may be referred in which it is held that in a case resting on circumstantial evidence chain of evidence must be such as not to leave any reasonable ground for conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. Hence, in the present case the trial Court has committed an error in convicting the appellants Satendra and Dinesh of offence under Section 302, 364 of I.P.C. When the appellants were not connected with the crime then it cannot be said that they destroyed the evidence to save themselves or someone else. Hence, the appellants cannot be convicted of offence under Section 201 of I.P.C.
36. In the light of aforesaid discussion the prosecution could not connect the accused persons of offence under Section 120-B of I.P.C and therefore, acquittal of the accused 33 Criminal Appeal No.1875/2007 Criminal Appeal No.1937/2007 Criminal Appeal No.1397/2008 persons recorded by the trial Court of offence under Section 120-B of I.P.C. cannot be interfered. Hence, the appeal filed by the State against all the accused persons against their acquittal of offence under section 120-B of I.P.C is hereby dismissed. When the prosecution could not connect the appellants Satendra and Dinesh with the crime, it is a case in which their appeals may be accepted. Consequently, the appeals filed by the appellants Satendra @ Pappu and Dinesh alias Deenu are hereby allowed. Their conviction as well as the sentence of offence under Section 302, 364 and 201 of I.P.C are hereby set aside. They are acquitted from the aforesaid charges. The appellants Satendra and Dinesh would be entitled to get the fine amount back if they have deposited before the trial Court.
37. The respondent Sarika was on bail. Her presence is no more required before this Court and therefore, it is directed that her bail bonds shall stand discharged. The appellants Satendra @ Pappu and Dinesh @ Deenu are in custody. They be released without any delay. The Registry is directed to arrange for issuance of their release warrants.
(SHANTANU KEMKAR) (N.K. GUPTA)
JUDGE JUDGE
5.10.2015 5.10.2015
bina