Madhya Pradesh High Court
Ram Kishore vs The State Of M.P. on 30 November, 2017
Author: Nandita Dubey
Bench: Nandita Dubey
1 Cr.A. No. 1143/1994
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 1143/1994
APPELLANT : RAM KISHORE, S/O RAMPRATAP
KORI
Vs.
RESPONDENT : STATE OF MADHYA PRADESH
For the appellant : Shri S.C. Datt, Sr. Counsel with Ms.
Kishwar Khan, Advocate.
For the respondent : Shri Ajay Shukla, Govt. Advocate
PRESENT : Hon'ble Shri Justice R.S. Jha
Hon'ble Smt. Justice Nandita Dubey
Arguments heard on : 22.11.2017
Judgment delivered on : 30.11.2017
JUDGMENT
As per Nandita Dubey, J.:
This appeal has been filed by the appellant, being aggrieved by the judgment dated 22.09.1994, passed by Sessions Judge, Satna, District Satna, in S.T. No. 212/1993, whereby the appellant has been found guilty for the offence under Sections 302 and 201 of the Indian Penal Code and has been sentenced to life imprisonment and fine of Rs.100/- and rigorous imprisonment for two years and fine of Rs.100/-2 Cr.A. No. 1143/1994
respectively, in default of fine, he has to suffer rigorous imprisonment for one month for each offence.
2. The prosecution case, in brief, is that, on 22.08.1993, at about 6.00 A.M., appellant Ramkishore and Bihari took deceased Ramkaran alongwith them to cut wood in the forest. It is alleged that appellant Ramkishore and Bihari came back, however, Ramkaran (deceased) did not return. According to the prosecution, the appellant was enquired about the whereabouts of Ramkaran by his mother P.W.-2 Budhaliya, but they did not say anything. Thereafter, Budhaliya informed P.W.-1 Chhotelal, father of the deceased and a search was mounted. The body of Ramkaran was found near Rajola nala, buried in the soil. Report (Ex.P-1) to this effect was lodged by P.W.-1 Chhotelal at police Station, Nayagaon and after preparing the panchnama (Ex.P-7), the body was sent for postmortem.
3. Dr. M.L. Soing (P.W.-9), who conducted the postmortem has found three incised wounds, one lacerated wound and one abrasion on the body of the deceased. According to him, all the injuries were anti- mortem in nature and the death has occurred 48 hours 3 Cr.A. No. 1143/1994 prior to the postmortem. He has opined that the cause of death was shock on account of excessive haemorrhage.
4. The appellant was arrested alongwith co-accused Bihari, however, on account of Bihari being a juvenile, his trial was separated. The offending weapon was also recovered on the direction of the appellant. The case of appellant was committed to the court of Sessions and the charges under Sections 302 and 201 of the Indian Penal Code were framed.
5. The prosecution has examined as many as 9 witnesses. The statement of the accused under Section 313 of the Cr.P.C. was also recorded and has produced one witness in his defence.
6. The trial Court convicted the appellant relying on the circumstantial evidence. The trial Court believed the evidence of P.W.-1 Chhotelal, P.W.-2 Budhaliya and P.W.-3 Natthu, that it was the appellant who was last seen with the victim/deceased and with whom deceased went out in the morning of 22.08.1993. The trial Court on the basis of last seen evidence and non-disclosure of the whereabouts of the 4 Cr.A. No. 1143/1994 deceased by the appellant on being asked, has found the appellant guilty of committing the offence under Sections 302 and 201 of the I.P.C. and convicted him as aforesaid.
7. Shri S.C. Datt, learned Sr. Counsel appearing for the appellant has vehemently argued that the circumstances of last seen together cannot by itself form the basis of holding the accused guilty of the offence. He has stated that even if it is accepted that the appellant was there, it would be at best amount to be evidence of appellant having been last seen together with the deceased. He has further stated that the prosecution has failed to prove the case beyond reasonable doubt and the complete chain of the circumstances has not been found which could prove the hypothesis of the guilt of the accused. He further submits that only on the basis of the evidence of last seen together, the conviction could not have been recorded. In support of the submissions, Shri Datt, Sr. Counsel has placed reliance on (2005) 12 SCC 438, AIR 1979 SC 1620, (2014) 4 SCC 149 and AIR (2017) SCW 2617.
8. On the other hand, Shri Ajay Shukla, learned 5 Cr.A. No. 1143/1994 Govt. Advocate appearing for the respondent/State has supported the impugned judgment. It was contended that finding and conclusion arrived at by the Court below was based on cogent evidence and the circumstantial evidence brought on record by the prosecution, complete the chain of events and were sufficient to convict the appellant.
9. Having heard the learned counsel for the parties at length and on perusal of the record, it is observed that P.W.-1 Chhotelal in his deposition has stated that his son, the deceased has informed him that he is going alongwith the appellant for cutting the wood in the forest. P.W.-2 Budhaliya, the mother of the deceased has stated that the appellant took her son Ramkaran, aged 9 years for cutting the wood in the forest. The appellant came back after two hours but the deceased was not with him. She has further stated that when she asked the appellant where he has left her son, the appellant did not say anything and instead asked her to search for him. She has further stated that till 12 O'Clock, she on her own searched for her son but as she could not find him, she went to inform her husband, who was working in the University. A search was thereafter mounted. The body of the 6 Cr.A. No. 1143/1994 deceased was found buried in the soil near the nala. Her statement is corroborated and supported by Natthu (P.W.-3) and P.W.-5 Acchelal, who went alongwith P.W.-1 Chhotelal and P.W.-2 Budhaliya in search of the deceased. According to these witnesses, appellant and deceased belonged to the same family, appellant being the nephew of P.W.-1 Chhotelal. According to Chhotelal (P.W.-1), appellant harbored some grudge against him on account of partition and land dispute.
10. P.W.-8 Moodi, wife of Jodha in her case diary statement has stated that she has witnessed the incident, however, she has resiled from her earlier statement and denied the fact of seeing the incident and was declared hostile.
11. Dr. M.L. Soing (P.W.-9), who conducted the autopsy found the following injuries on the body of the deceased :
(1) Incised wound 2 1/2"x 1 1/4" above thyroid cartilage, underneath muscles and wind pipe found cut and carotid vessels on right side are also found cut. (2) Incised wound 2 cm x 1 cm x 1 cm on left side of mandible.
(3) Incised wound 2 cm x 1 cm x 1 cm 7 Cr.A. No. 1143/1994 just infront of left ear (4) Lacerated wound 3"x 2"x 2cm on top of left shoulder.
(5) Abrasion 2"x 1" just below above wound.
According to the doctor, these injuries could have been caused by the offending weapon.
12. The Supreme Court on several occasions has considered the law regarding basing of conviction by the Court on a circumstantial evidence. In the case of Deonandan Mishra Vs. State of Bihar AIR 1955 SC 801, the Supreme Court has observed :
"It is true that in a case of circumstantial evidence not only should the various links in the chain of evidence be clearly established, but the completed chain must be such as to rule out a reasonable likelihood of the innocence of the accused. But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation, and he offers no explanation, which if accepted, though not proved, would afford a reasonable basis for a conclusion on the entire case consistent with his innocence, such absence of explanation or false 8 Cr.A. No. 1143/1994 explanation would itself be an additional link which completes the chain. We are, therefore, of the opinion that this is a case which satisfies the standards requisite for conviction on the basis of circumstantial evidence."
13. In State of Goa Vs. Sanjay Thakran and another (2007) 3 SCC 755, the Supreme Court has observed that the circumstance of last seen together would be a relevant circumstance in a case, where there was no possibility of any other persons meeting or approaching the deceased at the place of incident or before the commission of the crime in the intervening period. The Supreme Court in Sanjay Thakran (supra) has further observed :
"From the principle laid down by this Court, the circumstance of last-seen together would normally be taken into consideration for finding the accused guilty of the offence charged with when it is established by the prosecution that the time gap between the point of time when the accused and the deceased were found together alive and when the deceased was found dead is so small that possibility of any other person being with the deceased could completely be ruled out. The time gap between the accused persons seen in the company of the deceased and the detection of the crime would be a material consideration for appreciation of the 9 Cr.A. No. 1143/1994 evidence and placing reliance on it as a circumstance against the accused. But, in all cases, it cannot be said that the evidence of last seen together is to be rejected merely because the time gap between the accused persons and the deceased last seen together and the crime coming to light is after (sic of) a considerable long duration. There can be no fixed or straight jacket formula for the duration of time gap in this regard and it would depend upon the evidence led by the prosecution to remove the possibility of any other person meeting the deceased in the intervening period, that is to say, if the prosecution is able to lead such an evidence that likelihood of any person other than the accused, being the author the crime, becomes impossible, then the evidence of circumstance of last seen together, although there is long duration of time, can be considered as one of the circumstances in the chain of circumstances to prove the guilt against such accused persons. Hence, if the prosecution proves that in the light of the facts and circumstances of the case, there was no possibility of any other person meeting or approaching the deceased at the place of incident or before the commission of the crime, in the intervening period, the proof of last seen together would be relevant evidence. For instance, if it can be demonstrated by showing that the accused persons were in exclusive possession of the place where the incident occurred or where they were last seen together with the deceased, and there was no possibility of any intrusion to that place 10 Cr.A. No. 1143/1994 by any third party, then a relatively wider time gap would not affect the prosecution case."
14. The relevance of last seen theory came up for consideration before the Supreme court in State of UP Vs. Satish (2005) 3 SCC 114, wherein the Supreme court has observed :
"The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases. In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2."
15. In Deepak Chandrakant Patil Vs. State of Maharashtra (2006) 10 SCC 151, the Supreme 11 Cr.A. No. 1143/1994 Court has held :
"The learned Counsel for the appellant also submitted before us that the evidence of PWs 15 & 13 to the effect that the deceased was last seen in the company of the appellant became irrelevant in view of the fact that the prosecution had (sic not) led direct evidence to prove the assault on the deceased. In our view, the submission does not help the appellant. In this case, the circumstance that the deceased was last seen by PWs 15 & 13 in the company of the appellant, is a circumstance which considered with other evidence on record has been found to prove the guilt of the accused. It is not as if the prosecution has tried to set up a case other than what was sought to be proved by the eye witnesses examined in the case who turned hostile. Since the eye witnesses turned hostile, the circumstance that the appellant had accompanied the deceased and was last seen by him was only treated as one of the circumstances in the chain of circumstances to prove his guilt."
16. The principle that emerges from the above is that last seen theory is a circumstance, which can be relied on, but it is equally settled that only on the basis of last seen together, conviction cannot be recorded. If there is a long time gap between the last seen together and the date of incident, the evidence of last seen together loses much of its importance. 12 Cr.A. No. 1143/1994
17. In the instant case, the deceased went alongwith the appellant for cutting woods in the morning hours of 22.08.1993. The appellant came back after two hours but the deceased did not return with him. P.W.-2 Budhaliya, mother of the deceased/victim asked the appellant about victim's whereabouts, but he offered no explanation, who, then alongwith P.W.-1 Chhotelal and others carried out rigorous search in the forest and found the body of the deceased buried in the soil near the nala. Thus there is no time gap between appellant being last seen together with deceased and the discovery of dead body. Apart from this fact, recovery of sickle at the instance of the appellant and the postmortem report Ex.P-13 and opinion of Dr. M.L. Soing that the injuries to the deceased could have been caused by the offending weapon, complete the chain of events.
18. In the instant case, the prosecution has established that the evidence of deceased being last seen together with the appellant coupled with absence of any explanation from the appellant on being enquired and the proximity of the time when the appellant and deceased were last seen together to the 13 Cr.A. No. 1143/1994 time when the body of the deceased found is a relevant circumstance, which shows that there is no other possibility except for the fact that the crime has been committed in the intervening period by the appellant. In view of the aforesaid, the case law relied on by the learned Senior Counsel has no applicability to the facts of the case.
19. From a perusal of the statement of the appellant under Section 313 of the Cr.P.C., it is clear that the appellant had not taken any defence rather submitted that the family of the deceased has falsely robbed him.
20. 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 14 Cr.A. No. 1143/1994 adverse inference against the accused as may be permissible in accordance with law."
21. 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 :-
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 15 Cr.A. No. 1143/1994 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 purposeless exercise.
22. It is pertinent to note that the plea of alibi has been taken by D.W.-1 Rajkumar, brother of the appellant. It was stated by him that at the time of the incident the appellant was working at Janki kund under the employment of one Chandrapal, however, to substantiate his statement, evidence of Chandrapal was not recorded. Under the circumstances, no reliance could be placed on his statement. 16 Cr.A. No. 1143/1994
23. In view of the aforesaid analysis and the case laws discussed, the evaluation of the evidence made by the trial Court while recording an order of conviction does not suffer from any infirmity or illegality and the grounds on which the order of conviction is based cannot be said to be unreasonable.
24. In the result, the conviction of the appellant passed by the trial Court is affirmed and upheld and the appeal filed by appellant being meritless is dismissed. Appellant 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.
(R.S.Jha) (Nandita Dubey)
JUDGE JUDGE
30/11/2017 30/11/2017
gn
Digitally signed by GEETHA NAIR
Date: 2017.12.01 12:42:51 +05'30'