Madhya Pradesh High Court
Ravindra Singh vs The State Of Madhya Pradesh on 21 February, 2017
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABALPUR, M.P.
DIVISION BENCH: Hon'ble Mr. Justice S.K.Gangele
&
Hon'ble Mr. Justice Subodh Abhyankar
CRIMINAL APPEAL NO.2094 OF 2010
Gajanand @ Gajju.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.2184 OF 2010
Ravinder Singh.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.2218 OF 2010
Santosh Gupta & Anand Tiwari.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.2283 OF 2010
Santosh Meena.
Vs.
State of Madhya Pradesh.
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Shri K.S.Rajput, Advocate in Cr.A.No.2094/2010, Shri
Prakash Upadhyay, Advocate in Cr.A.No.2184/2010, Shri
K.S.Rajput and Shri Prakash Upadhyay, Advocates in
Cr.A.No.2218/2010 and Shri M.K.Tripathi, Advocate in
Cr.A.No.2283/2010.
Shri Prakash Gupta, learned Panel Lawyer for the
respondent/State.
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JUDGEMENT
(Delivered on this the 21st day of February, 2017) The following judgment of the Court was rendered by:
Subodh Abhyankar,J:
This judgment shall also govern the disposal of above mentioned criminal appeals, as all these appeals have arisen out of common judgment of conviction dated 20.09.2010 passed by the Fourth Additional Sessions Judge, District Khandwa, in S.T.No. 230/2007, whereby the appellants/accused persons have been convicted and sentences as under:
Cr.A.No.2094/2010:
Name of Conviction Fine Default
Sentence
accused u/s (Rs.) clause
RI for
Gajanand @ 302/120-B of
RI for life 1,000/- one
Gajju IPC
year
364/120-B of RI for 10 RI for 6
500/-
IPC years months
300/-
365/120-B of RI for 3 RI for 4
IPC years months
346/120-B of RI for 6
Nil Nil
IPC months
Cr.A.No.2184/2010:
Name of Conviction Fine Default
Sentence
accused u/s (Rs.) clause
RI for
Ravinder 302/120-B of
RI for life 1,000/- one
Singh IPC
year
364/120-B of RI for 10 RI for 6
500/-
IPC years months
300/-
365/120-B of RI for 3 RI for 4
IPC years months
346/120-B of RI for 6
Nil Nil
IPC months
Cr.A.No.2218/2010:
Name of Conviction Fine Default
Sentence
accused u/s (Rs.) clause
Santosh
RI for
Gupta & 1,000/-
302 of IPC RI for life one
Anand each
year
Tiwari
364/120-B of RI for 10 500/- RI for 6
IPC years each months
365/120-B of RI for 3 300/- RI for 4
IPC years each months
346/120-B of RI for 6
Nil Nil
IPC months
RI for one 500/- RI for 3
201/34 of IPC
year each months
Cr.A.No.2283/2010:
Name of Conviction Fine Default
Sentence
accused u/s (Rs.) clause
RI for
Santosh
302 of IPC RI for life 1,000/- one
Meena
year
364/120-B of RI for 10 RI for 6
500/-
IPC years months
365/120-B of RI for 3 RI for 4
300/-
IPC years months
346/120-B of RI for 6
Nil Nil
IPC months
All sentences were directed to run concurrently.
2. In brief, the case of the prosecution is that on 16.08.2007 at around 12'O clock, deceased Gullu @ Ramswaroop was called by his neighbours Ravinder Singh and Amolak Singh to go to Village Chhanera and when the deceased Ramswaroop @ Gullu did not return till the afternoon, his wife PW/2 Smt. Rekha Prajapati tried to call him on mobile phone but as the same was switched off, she also called accused Ravinder Singh Saluja on his mobile phone. Accused Ravinder Singh initially said that he is coming with Gullu but later on said he is not coming with him and since the deceased did not return by the evening, hence Smt. Rekha Prajapati lodged a complaint Ex.P-2 at 10:00 P.M. On 16.08.2007.
3. It is further the story of the prosecution that one day prior to 16.08.2007, i.e. on 15.08.2007, accused Santosh Meena called PW/5 Rajendra Singh who used to drive Trax Gama bearing registration No.MP-12 T-0347 owned by him and said that his vehicle is required on 16.08.2007. On 16.08.2007 Rajendra Singh met accused Ravinder Singh, Amolak Singh, Balwant Thakur and deceased Ramswaroop. All of them boarded PW-5-Rajendra Singh's vehicle and reached at Jaiswal Ka Dhaba from there they started for Village Chhanera and reached a country liquor shop near Sector No.5 at Naya Harsood where accused Sajid also sat in the vehicle and from there they started for Naya Harsood where they stopped at a Chawl and after around 10 minutes, accused Amolak Singh, Guddu Chauhan and Ravinder Singh came out from the Chawl, sat in a white Indica car which was already parked there and left from there whereas accused Balwant Singh and Sajid came out and sat in the vehicle of PW-5-Rajendra Singh. After ten minutes accused Santosh Meena came out from the Chawl and told PW-5 Rajendra Singh to reverse the vehicle and park it in front of the gate and when he did so, accused Santosh Meena opened the back door and pushed deceased Ramswaroop @ Gullu on the back seat. This witness-PW-5 saw that Ramswaroop @ Gullu's both hands were tied behind his back/alongside his waist with a rope and accused Santosh brought something wrapped in a paper and kept it in the vehicle. Accused Anand Tiwari and Santosh Gupta also sat in the vehicle and when PW-5- Rajendra Singh, asked them as to what they are doing, he was told to drive the vehicle and mind his own business. Afterwards accused Gajanand @ Gajju who came on a motorcycle also joined them. In the vehicle, PW-5 Rajendra Singh overheard that accused persons were asking the deceased Ramswaroop @ Gullu as to why their names had been mentioned in a shoot out case but the deceased kept silent.
4. It is further the case of the prosecution that while driving the vehicle when they reached a dense forest, near a Pulia (Culvert), PW-5Rajendra Singh was asked to stop the vehicle and accused Santosh Meena asked him to get out of the vehicle and move a little away as they had to get some papers signed by deceased Ramswaroop @ Gullu. At that time, accused Gajanand @ Gajju came there on a motorcycle and accused Anand Tiwari told PW-5 Rajendra Singh to fetch some Gutkha, cigarette etc. and then PW-5 Rajendra Singh and Gajanand @ Gajju left from that place on Gajju's motorcycle to Sheikhpura. After some time, Santosh Meena called and told him to come towards Khandwa road when this witness PW-5 reached near his vehicle, he did not find deceased Ramswaroop @ Gullu and when he asked about his whereabouts, accused Santosh Meena informed him that they got him signed some documents and left him behind and that he would get home by evening. Thereafter, all the three accused persons got down from PW-5 Rajendra Singh's vehicle and when Rajendra Singh left for his home, Gajanand @ Gajju also accompanied him and when PW/5 asked about Ramswaroop @ Gullu, Gajanand @ Gajju informed that Anand Tiwari had told him that, âGullu @ Ramswaroop ko upper wali dharani me pahuncha diya hai.â Meaning there by that he has been done away with.
5. When deceased Ramswaroop @ Gullu did not reach his home, a complaint was lodged by Smt. Rekha Prajapati on 16.08.2007. In the night of 16.08.2007 itself accused Ravinder Singh also lodged a written complaint, which was registered at Sr. No. 724 in the Daily Register (Roznamcha Sanha), which is Ex.P-29. On 17.08.2007. An FIR Ex.P/32 was also lodged by accused Gajanand @ Gajju on 17.08.2007 regarding the kidnapping of Ramswaroop @ Gullu against Santosh Meena and Santosh Gupta under Sections 365 and 342 of the IPC.
6. During the investigation, statement of PW/5-Rajendra Singh was recorded under s.161 as Ex.D/3 and u/s. 164 of Cr.P.C. on 21.08.2007 vide Ex.D/4. During the investigation, prosecution witness Rekha also submitted letters written by Gullu, which are exhibited as Ex.P-3, 4, 5 and 7 that his life is in danger and is under threat. During the course of investigation, Station House Officer N.S. Rawat (P.W.9) on 19.08.2007 recovered a dead body from beneath a culvert (Pulia), which was subsequently identified as of deceased Ramswaroop @ Gullu vide Ex.P-11. Initially the charge sheet was filed against the accused Santosh Meena, Anand Tiwari, Santosh Gupta @ Michael and Gajanand @ Gajju and accused Ravinder Singh who was subsequently arrested, hence a separate trial was initiated, which was merged in ST No.230/2007.
7. During the course of investigation accused Nos. 1 Santosh Gupta, 2 Anand Tiwari and 4 Gajanand @ Gajju were arrested and accused No.3 Santosh Meena was absconding and hence in his absence charge-sheet was filed under Section 173(8) of the Cr.P.C. and the case was committed in respect of accused Nos. 1 ,2 and 4. Subsequently, accused Santosh Meena was also arrested, hence a supplementary charge-sheet was also filed against him before the Second Additional Sessions Judge, Khandwa, where the case was already pending against accused Nos. 1, 2 and 4 and, thereafter, these cases were transferred to to Fourth Additional Sessions Judge.
8. Against Ravinder Singh S/o Arjun Singh investigation was kept open under Section 173(8) of Cr.P.C. and subsequently, the charge-sheet was also submitted against him and after committal the Session Judge, sent the case to the same judge, where the trial of other accused persons was already pending and this case was also merged into the case of the other accused persons in ST No.230/2007 but evidence was recorded de novo.
9. The other accused persons namely Balwant Thakur, Raj Kumar Chouhan, Amolak Singh, Sajid and Umesh could not be arrested and are still absconding and the impugned judgment has been passed only against five accused persons.
10. The prosecution has examined as many as eight witnesses in ST No. 230/07 and ten witnesses in the case of Ravinder Singh. In defence, two witnesses have been examined and some documents have also been produced. All the accused persons have denied the allegations under Section 313 of the Cr.P.C.
11. Learned counsel for all the appellants have submitted that there is no direct evidence on record against the present appellants to connect them with the alleged offence, therefore the learned trial Court has committed a grave error in convicting them. Under such circumstances, the appellants are entitled to be acquittal.
12. On the other hand, Shri Prakash Gupta, learned Panel Lawyer appearing on behalf of the respondent/State supported the impugned judgment mainly contending that the prosecution has established the guilt of the accused persons/appellants beyond reasonable doubt, hence the impugned judgment does not call for any interference.
13. We have heard the learned counsel for the parties and perused the record.
14. So far as the homicidal death of deceased Ramswaroop is concerned, the same has been proved by Dr. N.K.Sethiya (PW-6), who had conducted the post-mortem on 19.8.2007. According to this witness, the body of the deceased was tied with rope. The hands were tied behind his back and legs of the deceased were also tied and around his neck, rope was tied rolled over for five times. The cause of death is shown to be asphyxia by strangulation, which was homicidal in nature. The duration was between 24 to 84 hours. The post-mortem report is Ex.P-18. In the cross examination this witness has admitted that there was no blister on the body of the deceased. He also admitted that blister occurred after around 48 hours of the death. It is also admitted by this witness that the skin of the body was peeled off on account of blisters. An attempt has been made in his cross examination to suggest that the figure of 84 hours mentioned in the post-mortem report has been tampered with and it was actually 48 hours instead of 84 hours to which the doctor has categorically refused.
15. The alleged incident can be said to have taken place in two phases, first phase is confined to the acts of Ravinder Singh and second phase starts when Ravinder Singh left deceased in the company of other accused persons viz. the present appellants Santosh Gupta @ Michael, Santosh Meena and Anand Tiwari, and Gajanand @ Gajju joined them afterwards. We will first discuss the second phase and then the first phase as it relates to Ravinder Singh who was arrested subsequently and was tried separately in the same trial by the same court.
16. On consideration of the evidence of other witnesses, as stated by Rekha Prajapati (PW-2), the wife of deceased Ramswaroop @ Gullu, he started from his house in the morning of 16.8.2007, he was called by accused Ravindra Singh (appellant in Cr.A.No.2184/2010), who had come to his house with Amolak Singh and took him away. She has stated that at around 2 Oâclock Ravinder Singh called her and informed that he would come with Gullu @ Ramswaroop and there is nothing to worry about and thereafter he informed her that he was speaking from Chhanera and the deceased has been abducted by Raj Kumar Chouhan and his gang. Although this witness-PW-2 has stated in her statement u/s.161 of Cr.P.C. exhibited as Ex.D1 and D/8 that Ravinder Singh has given false assurances that he would come back with Gullu @ Ramswaroop, but there is no specific allegation made by her in her original complaint Ex.P/2 lodged on 16.8.2006. Rekha Prajapati (PW-2) in her statement (Ex.D-1& D/8) recorded under Section 161 of Cr.P.C., has stated that Ravinder Singh had misled her regarding whereabouts of the deceased, and that Ravinder Singh informed her that the deceased had been taken by Raj Kumar Chouhan and other accused persons. The deposition of this witness would be dealt with in detail at a later stage while discussing the case of Ravinder Singh. This witness has also got recovered the letter (Ex.P-3) issued by the deceased Gullu @ Ramswaroop to the police wherein he had expressed his apprehension that Raj Kumar Chouhan and other persons of his gang may attack on him and has also stated in the said letter that Raj Kumar Chouhan accompanied with Guddu @ Umesh Chouhan, Santosh, Balwant Singh and Santosh @ Michael, who had also fired upon him on 11.6.2007 for which Crime No.17/2007 was registered under Sections 294, 307, 120-B of IPC and Sections 25/27 of the Arms Act and they may again try to kill him. Another document got recovered by Rekha Prajapati (PW-2) is a letter along with phone number of various members of Raj Kumar Chouhanâs gang. Similarly, other letters (Ex.P-4, P-5 and P-6) have also been got recovered by PW-2. So far as other accused persons are concerned, she is a hearsay witness and has named them only because it was so informed by accused Ravinder Singh and on the basis of the letters of her husband and also on account of the previous animosity between the deceased Gullu, Raj Kumar Chouhan and other accuse persons.
17. Manish Kumar (PW-3) happens to be the nephew of the deceased. He also made similar allegation against appellant Ravinder Singh. This witness has also identified the body of the deceased Gullu vide Ex.P/9. According to this witness, Ravinder Singh had informed him that Raj Kumar and other accused persons namely Balwant, Santosh, Michael and Anand Tiwari had taken away the deceased, but this witness is not an eye-witness and has implicated the other co-accused persons only on the basis of his earlier knowledge of enmity between Gullu and Raj Kumar as both their families are living in the same house.
18. Rajendra Singh (PW-5) is the star witness, who was there all along with the accused persons and the deceased. According to this witness, Santosh Meena called him on 15.8.2007 and then on 16.8.2007 to bring a vehicle near the railway station and thereafter four persons viz. Ravinder Singh Sardar, Amolak Singh Sardar, Balwant Thakur and Ramswaroop @ Gullu sat inside the vehicle and thereafter they went to Naya Harsood, Sector No.5, and another person to whom Ravinder Singh has referred to as Pahalwan also got into the vehicle. Thereafter they went to a Chawl situated at Sector No.5 and after going into the said Chawl, Amolak Singh, Ravinder Singh and other person Guddu came out, sat in an Indica Car and drove away by saying that they have to come back. After these persons left the Chawl, Santosh Meena asked PW-5 to reverse his vehicle and park the same in front of the room where all of them were sitting. After he parked the vehicle, the back door of his vehicle was opened and Ramswaroop @ Gullu was pushed by the accused persons inside the vehicle, Gulluâs hands were tied with a rope, and other accused persons who also sat in the vehicle were one Pahalwan, Santosh Meena, Anand Tiwari and Santosh Gupta @ Michael. When this witness refused to drive the vehicle on the ground that the hands of Ramswaroop @ Gullu were tied, he was threatened by accused Anand Tiwari who told him to mind his own business and also abused him. Thereafter they also filled the diesel of Rs.500/- in the vehicle only to proceed to village Dharni. When this witness protested to go to Dharni, then accused Anand Tiwari, again abused him and told him that he should be concerned with fair only.
19. Thereafter they went to Malgaon road as directed by accused Santosh Meena and when they reached near Ashapur Mandir, accused Santosh Meena asked to drive the vehicle slowly because Gajanand @ Gajju is coming behind on his motorcycle and he was asked to stop the vehicle in the jungle near the culvert (Puliya) and all of them got down from the vehicle. He also heard accused persons saying to Gullu why their names have been mentioned in the shoot out (Goli Kand). Thereafter Gajanand @ Gajju came there on a motorcycle, and Anand Tiwari took him aside, had some conversation with him and then Gajanand @ Gajju asked this witness PW/5 to come with him on his motorcycle to Sheikhpura to buy Gutkha etc.. At this juncture, a question was also asked by the trial Court that whether he had apprehended that anything may happen to Gullu, whose hands were tied and in reply to the aforesaid question, this witness has clearly answered that Santosh Meena informed him that nothing would happen to Gullu and they have brought him only to teach a lesson. When this witness came back to the spot along with Gajanand @ Gajju from motorcycle after purchasing Gutka, his vehicle was not there and they proceed further. After one-two kms. he received a call from Santosh Meena and was asked to come towards Khandwa road. After reaching Khandwa road, he did not find Gullu @ Ramswaroop in the vehicle and when he enquired about him, then Santosh Meena informed him that they have already left him behind and he would get to his house at Khirkiya, and when this witness asked for fair of the vehicle, Santosh Meena told him to come to Indore Naka where the same would be paid and thereafter Santosh Meena, Santosh Gupta @ Michael and Anand Tiwari, the three accused persons got down from his vehicle, but they left Gajju behind and told him to bring this witness along with him. When this witness-PW-5 reached Indore Naka, Santosh Meena gave him Rs.500/- and told him that remaining sum of Rs.1500/- would be paid at his house only and also asked him to drop Gajanand @ Gajju at Chhanera. When this witness enquired about the whereabouts of Gullu @ Ramswaroop, Gajanand @ Gajju told him that âvkuan us crk;k gS fd xqYyw mQZ jkeLo:i dks mij okyh /kkj.kh esa igqapk fn;k gSAâ and thereafter Gajju got down near Sarvoday Colony and he came back to Khirkiya. After coming back to his house, he narrated the entire story to his father and his father told him that he would lodge a report tomorrow morning. This witness in para 9 of his deposition, has identified the accused Santosh Meena, Anand Tiwari and Gajanand @ Gajju by name , although he could not name Santosh Gupta, but has identified him from amongst other accused persons who mentioned his name as Santosh S/o Kishanlal Gupta. This witness's vehicle (GAMA) bearing registration No.MP12 T-0347 and its documents were also seized vide Ex.P-16. In the lengthy cross examination of this witness, he has admitted that on 16th night, 17th and 18th August, 2007 he did not go to the house of Gullu @ Ramswaroop and he was so afraid that he did not tell this incident to anybody else.
20. PW/5 Rajendra Singhâs statement under Section 164 of Cr.P.C. has also been recorded on 21.8.2007. This witness has also admitted that no test identification parade took place of the accused persons and after the incident he identified the accused persons for the first time in the court only. A suggestion was also put to him that no such incident had taken place and that nobody called for his vehicle on 16.8.2007, he has been confronted with his statements given to the police Ex.D-3 and D/4 u/s.164 of Cr.P.C. The cross- examination of this witness started from 22.7.2008 and completed only on 3.6.2009 i.e. around one year and all the omissions and contradictions as pointed out in his cross- examination are minor in nature. That apart, he has supported the case of the prosecution. This witness has also mentioned the name of four accused persons namely Santosh Meena, Santosh Gupta @ Michael, Gajanand @ Gajju and Anand Tiwari regarding their presence with Gullu whose hands were tied. His testimony has remained unrebutted that he saw the accused persons with the deceased whose hands were tied behind back. Merely because PW-5 Rajendra's statements were also recorded u/s 164 of Cr.P.C. does not mean that his testimony is unreliable.
21. So far as the dock identification by PW-5 of the appellants witnesses for the first time in the Court is concerned, no infirmity can be said to have occurred if no test identification parade has been conducted by the police. Witness Rajendra Singh (PW-5) was in the company of the accused persons for a long time i.e. from the noon till the evening and had ample opportunities to identify them and to know about them by their names. Rajendra Singh (PW-5) in his examination-in- chief, has identified Santosh Meena, Anand Tiwari and Gajanand @ Gajju, but he could not identify one of the accused persons by his name but after he pointed out to one of the accused, he identified himself as Santosh Gupta. Thus the testimony of this witness is found trustworthy and credible.
22. The honâble Apex court in the case of Ashok Debbarma v. State of Tripura, (2014) 4 SCC 747, while dealing with the dock identification has held thus:
â20. We have gone through the oral evidence of PW 10 and PW 13 and, in our view, the trial court and the High Court have rightly appreciated their evidence and the involvement of the appellant in the above incident, including the fact that he had fired at various people, which led to the killing of relatives of PW 10 and PW 13. We are of the view that since the accused persons were known to the witnesses and they were identified by face, the fact that no test identification parade was conducted at the time of investigation, is of no consequence. The primary object of the test identification parade is to enable the witnesses to identify the persons involved in the commission of offence(s) if the offenders are not personally known to the witnesses. The whole object behind the test identification parade is really to find whether or not the suspect is the real offender. In Kanta Prashad v. Delhi Admn., this Court stated that the failure to hold the test identification parade does not make the evidence of identification at the trial inadmissible. However, the weight to be attached to such identification would be for the court to decide and it is prudent to hold the test identification parade with respect to witnesses, who did not know the accused before the occurrence. Reference may also be made to the judgment of this Court in Harbajan Singh v. State of J&K, Jadunath Singh v. State of U.P. and George v. State of Kerala.
21. The abovementioned decisions would indicate that while the evidence of identification of an accused at a trial is admissible as substantive piece of evidence, it would depend on the facts of a given case as to whether or not such a piece of evidence can be relied upon as the sole basis of conviction of an accused. In Malkhansingh v.
State of M.P., this Court clarified that the test identification parade is not a substantive piece of evidence and to hold the test identification parade is not even the rule of law but a rule of prudence so that the identification of the accused inside the courtroom at the trial can be safely relied upon. We are of the view that if the witnesses are trustworthy and reliable, the mere fact that no test identification parade was conducted, itself, would not be a reason for discarding the evidence of those witnesses. This Court in Dana Yadav has examined the points on the law at great length and held that: (SCC p. 316, para 38)
21. â(c) The evidence of identification of an accused in court by a witness is substantive evidence whereas that of identification in test identification parade is, though a primary evidence but not substantive one, and the same can be used only to corroborate the identification of the accused by a witness in court.â So far as the present case is concerned, PW 10 and PW 13 have identified the accused in open court which is the substantive piece of evidence and such identification by the eyewitnesses has not been shaken or contradicted. The trial court examined in detail the oral evidence tendered by those witnesses, which was accepted by the High Court and we find no error in the appreciation of the evidence tendered by those witnesses.â (Emphasis supplied) It is rather surprising that this witness-PW-5, despite being independent has stood by his words which is a rare phenomenon in the present days. His testimony is, what can be described as of sterling nature and cannot be doubted for once.
23. Ramesh Jadhav (PW-7) is the photographer, who had taken the photographs (Ex.P-19 to P-22) of the deceased on the spot. From these photographs, it can clearly be discerned that the deceasedâs hands were tied behind his back and as narrated by Rajendra Singh (PW-5) with a long rope, which is also found by Dr.N.K. Sethiya (PW-6) that deceasedâs hands were tied with rope was also tied around his neck.
24. A.S.I. K.S. Tomar (PW-8) has proved the complaint Ex.P/2 lodged by Rekha Prajapati and also made by appellant Ravinder Singh, which is Ex.P-28. N.S.Rawat (PW-9) is the Station House Officer, Khaknar who had recovered the body of the deceased from beneth a Pulia (Culvert).
25. A.S.I. Suresh Yadav (PW-10) is the investigation officer, who has proved that on 17.8.2007 accused Gajanand S/o Dayaram Mali also reported to the police regarding abduction of deceased Ramswaroop @ Gullu by Santosh Meena and Michael @ Santosh Gupta. On the basis of which an FIRâEx.P/32 vide Crime No.220/2007 was registered under Sections 365, 342 of IPC. This witness has also been confronted with the infirmities of the statements given by Rajendra (PW-5) but nothing substantive could be extracted from his lengthy cross examination which may be helpful to any of the appellants.
26. In their defence, accused persons have examined Shri D.R.Kanungo, retired DSP who has proved Ex.D/5A, D/6A and D/7A. These documents are an attempt to suggest that there was no grievance of deceased Gullu against the present appellants. For example Ex.D/5A is an application submitted by deceased Gullu to the SHO, P.S. Chipabad wherein Gullu has stated that Raj Kumar has nothing to do with an assault on him he has not lodged any report against Umesh, Balwant, Santosh and Michael and the FIR lodged in this behalf is false. Other documents are also of the same nature. But, the aforesaid documents are of no help to the appellants because there is an eyewitness account of their deeds in the present case. In this respect, it is also pertinent to mention here that appellant Gajanand @ Gajju, despite having lodged the FIR has not taken any specific plea regarding his defence.
27. From the aforesaid discussion, the eyewitness account of PW/5 Rajendra Singh is more than sufficient to bring home the offence against the accused Santosh Meena, Santosh Gupta @ Michael, Anand Tiwari and Gajju @ Gajanand Mali. In the considered opinion of this court, the chain of circumstances leading to the death of deceased Gullu @ Ramswarup is complete by the following events:-
(a) Deceased Ramswaroop @ Gullu, with his hands tied behind his back by a rope and was sitting inside the vehicle of PW-5 Rajendra Singh along with accused Santosh Meena, Santosh Gupta @ Michael, Anand Tiwari.
(b) Accused Gajanand @ Gajju also accompanied these three accused persons for some time as their aide and was present at the time when deceased Gullu @ Ramswaroop was very much alive, with his hands tied behind his back by a rope was sitting inside the aforesaid vehicle, he also took PW/5 Rajendra Singh on his motorcycle away from the other accused persons leaving the deceased Gullu alone in the company of other accused persons in order to facilitate the crime.
Otherwise there was no reason for Gajanand @ Gajju to take Rajendra Singh away from the spot. His lodging of FIR Ex.P/32 on 17.08.2007 against Santosh Meena and Santosh Gupta @ Michael also indicates his efforts to create a false evidence to show his innocence, which only leads credence to the story of conspiracy in which he was involved with other accused persons.
(c) Soon after his disappearance on 16.08.2007 in the presence of accused Santosh Meena, Santosh Gupta @ Michael, Anand Tiwari, deceased Gullu @ Ramswarup was not heard of for two days and his body was recovered on 19.08.2007 with his hands tied behind his back. These circumstances as aforesaid, lead to the hypothesis consistent only with the guilt of the accused persons and nothing else. The Honâble Apex Court in the case of Madhu v. State of Karnataka, (2014) 12 SCC 419, observed as under:
â13. This Court has dealt with the case of circumstantial evidence time and again. It has consistently been held that a conviction can be based solely on circumstantial evidence. The prosecution case must stand or fall on its own legs and cannot derive any strength from the weakness of the defence put up by the accused. However, a false defence may be called into aid only to lend assurance to the court where various links in the chain of circumstantial evidence are complete in themselves. The circumstances from which the conclusion of guilt is to be drawn should be fully established. 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 or point to any other hypothesis except that the accused is guilty. The circumstances should be of a conclusive nature and tendency. The evidence produced by the prosecution should be of such a nature that it makes the conviction of the accused sustainable. (Vide Sharad Birdhichand Sarda v. State of Maharashtra, State of U.P. v. Satish and Paramjeet Singh v. State of Uttarakhand.)â (emphasis supplied)
28. Now coming to the first phase of the case, which relates to the involvement of accused Ravinder Singh till he was last seen by the PW/5 Rajendra Singh outside the Chawl at Sector-5 of New Harsood. After Ravinder Singhâs case was merged into the present case, almost all the witnesses have been re-examined. In the statements given by the witnesses in the case of Ravinder Singh, who was subsequently arrested, the statement of Rekha Prajapati, examined as PW/3 in these proceedings is important wherein she has been declared hostile and has not supported her earlier version that Ravinder was trying to mislead her when she spoke to him on 16.8.2007 on phone. She has also stated that appellant Ravinder Singh did not mislead her, and on the contrary she has stated that he is the person who informed her about the incident of abduction of her husband Gullu. She, in her subsequent statement so far as accused Ravinder Singh is concerned, has stated that Ravinder Singh is her well-wisher and helper. She has also stated that Ravinder informed her that Rajkumar had sent him to get the Stamps and when he again reached the place, nobody was there. Thus by her statement, it is clearly established that this witness has been won over by accused Ravinder Singh and cannot be relied upon.
29. Similarly, Manish Kumar (PW/4) in these proceedings, in his supplementary statement has been declared hostile and has not supported the case of the prosecution so far as it relates to accused Ravinder Singh by saying that Ravinder Singh is the family member and he always available for any help.
30. So far as PW-6 Rajendra Singh is concerned, who is examined as PW-5 in the connected trial, his testimony has remained intact that initially Ravinder Singh Sardar, Amolak Singh Sardar, Balwant Thakur, Gullu @ Ramswaroop sat in his vehicle and when they reached at Chhanera at Sector No.5, they went into a room and when Ravinder Singh, Amolak Singh and other person came out from the room, they sat in the Indica Car and left the spot by saying that they have to come back. In his cross examination he has admitted that this statement that Ravinder Singh also said that they have to come back is missing from his 161 statement although he had informed the police regarding the same. This witness is not declared hostile and his testimony is binding on the prosecution. Although, on behalf of Ravinder Singh no suggestion has been put to any of the witnesses that he had gone to take the Stamp and when he came back, nobody was there at the Chawl but still, it is established that after Ravinder Singh left from the spot, Gullu was tied with rope and was taken in Trax. In such circumstances, the conduct of Ravinder Singh revolves around the realm of suspension only and it cannot be said with any certainty that Ravinder Singh knew all along that Gullu @ Ramswaroop is about to be murdered and he genuinely may have taken deceased Gullu @ Ramswaroop to the Chawl in order to discuss the matter with Raj Kumar Chouhan and other accused persons. It is a settled position of law that mere suspicion however strong, cannot be the substitute for proof and in such circumstances, it would be unsafe to convict a person.
31. So far as the Cr.A. No.2184/2010 of appellant Ravinder Singh is concerned, even assuming the testimony of these eye-witness PW/6 Rajendra to be true, as discussed earlier, at the most it can be said that the deceased had gone along with this accused Ravinder Singh to discuss the matter with Raj Kumar Chouhan and thereafter this accused appellant/Ravinder Singh along with Amolak Singh left the spot soon from Sector No.5 at Khairkheda and after they left the deceased who was not tied by then in the company of other accused persons, he got missing for two days and was found dead. It is pertinent to mention here that till this accused was present on the spot along with other accused persons, the hands of the deceased were not tied and soon after he left the spot as narrated by witness Rajendra Singh (PW-5) in great details, that when deceased Ramswaroop @ Gullu came out from the room, his hands were tied and other accused persons also accompanied him. Under such circumstances, when accused Ravinder Singh who had also lodged a complaint in the same night narrating the same incident, which is Ex.P-28 proved by ASI Tomar (PW-8), he is entitled to the benefit of doubt. Under these circumstances, it cannot be said that his involvement in the offence is proved beyond reasonable doubt and that he was also involved in the conspiracy to commit the murder of the deceased Gullu @ Ramswaroop. In fact, the complaint Ex.P/28 lodged by appellant Ravinder Singh also tallies with the statement given by Rajendra Singh (PW-5), and it cannot be said with certainty that appellant Ravinder Singh had conspired with other accused persons or there was any meeting of minds with them to commit the murder of the deceased Gullu @ Ramswaroop.
32. Thus, the finding of the learned judge of the trial court so far as it relates to the appellant Ravinder Singh suffers from proper appreciation of evidence on record.
33. In their accused statements under Section 313 of Cr.P.C. all the accused persons have denied all the allegations and have stated that they have been falsely implicated. Thus, no specific defence has been set up by any of the accused persons.
34. On the above mentioned depositions and the documents available on record, this court comes to the conclusions that:
(a) The presence of the accused persons Santosh Meena, Santosh Gupta @ Michael, Anand Tiwari and Gajanand @ Gajju have been established beyond reasonable doubt. Under these circumstances, these appellants have failed to make out any case to warrant any interference by this Court in the findings recorded by the learned court below, hence their conviction and sentence as awarded by the learned Judge of the trial court is maintained and so far as the conviction of appellant Ravinder Singh is concerned, the same deserves to be set aside after giving him the benefit of doubt.
35. In the result, Cr.A. No.2094/2010 filed by appellant Gajanand @ Gajju, Cr.A.No.2218/2010 filed by appellant Santosh Gupta, Anand Tiwari and Cr.A.No.2283/2010 filed by appellant Santosh Meena being devoid of merits are liable to be dismissed and accordingly the same are hereby dismissed, whereas Criminal Appeal No.2184/2010 filed by appellant Ravinder Singh is allowed, the impugned judgment, so far as it relates to the appellant Ravinder Singh is set aside and the appellant is acquitted.
36. At present appellant Ravinder Singh of Cr.A. No.2184/2010 is in jail, therefore he be released forthwith if not required in any other case by issuing a release warrant without any delay.
(S.K. Gangele) (Subodh Abhyankar) Judge Judge 21/2/2017 21/2/2017