Madhya Pradesh High Court
Rakesh Kumar Sharma @ Chhotu @ Lallu vs State Of M.P. on 17 February, 2022
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 237 of 2007
Rakesh Kumar Sharma @ Chhotu @ Lallu
Vs.
State of M.P.
_______________________________________
Shri Prakhar Dhengula Counsel for the Appellant
Shri A.K. Nirankari, Counsel for the State
Date of Hearing : 3-2-2022
Date of Judgment : 17th-02-2022
Approved for Reporting :
Judgment
17th - February -2022
Per G.S. Ahluwalia J.
1. This Criminal Appeal under Section 374 of Cr.P.C. has been
filed against the judgment and sentence dated 27-12-2006 passed by
Additional Sessions Judge/Special Judge, Guna in S.T. No. 345 of
2000, thereby convicted and sentenced the appellant for offence
2
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
under Sections 302/34, 201 and 392 of IPC and awarded Life
Imprisonment and a fine of Rs. 1000/- for offence under Section
302/34 of IPC, 6 years R.I. and fine of Rs. 1000/- for offence under
Section 201 of IPC, and 7 years R.I. and fine of Rs. 1000/- for
offence under Section 392 of IPC. All sentences shall run
concurrently.
2. Before adverting to the facts of the case, this Court would like
to refer to the conduct of the appellant, during this appeal. The
appellant was granted bail by order dated 27-4-2009, but thereafter,
he did not appear before the Registry of this Court and accordingly
on 21-12-2009, warrant of arrest was issued against him. The surety
bonds were also forfeited, but the appellant could not be traced.
Thereafter, on 1-9-2014, a statement was made by the Counsel for the
appellant, that the appellant is no more. But since, no document was
filed to substantiate the death of appellant, therefore, the said
submission was not accepted. Ultimately, the appellant was arrested
on 19-12-2019. Thus, it is clear that he remained absconding for 10
long years, and even an attempt was made to play fraud on the Court
by submitting that the appellant has died. Be that whatever it may be.
3. According to the prosecution case, on 2-5-2000 at about 6:35
P.M., an information was received by Police Control Room, Guna
that one dead body of an unidentified person is lying in the bushes
near Temple situated in village Vilonia. Accordingly, the said
information was recorded in Rojnamchasanha of Police Station Cantt
3
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
at serial no. 78. The police party went to the spot, and a dead body of
unknown person was recovered in a naked condition, with multiple
injuries and some part of the body was eaten by animals also. Merg
report, Ex. P.10 was written on the spot, and on the basis of said merg
report, Merg Report No. 25/2000, Ex P.11 was registered in Police
Station Cantt., Distt. Guna. The photographs of the dead body were
taken. As it was already dark, therefore, on the next day, blood
stained and plain earth, one bottle of liquor, the hairs of the deceased
were seized. Safina form was issued. Lash Panchnama was prepared.
The dead body was sent for post-mortem. The post-mortem was done
at 11:15 A.M. Viscera was preserved.
4. It is also not out of place to mention here that B.R. Premi,
S.H.O., Police Station Akbarpur, Kanpur Dehat, Kanpur (U.P.) was on
patrolling along with his police party. He received an information
that one factory, situated near village Navipur, is lying closed for the
last several years and in that premises, one truck is parked in a
suspicious condition, and cloths are being unloaded. The police party
immediately went to the spot and found that two persons were on the
truck and two persons were standing on the ground and the bundles
of cloths were being unloaded. After noticing the police party, all the
four persons started running away. When they were chased, gun
shots were also fired on the police party, however, the police
succeeded in apprehending two persons, namely the appellant Rakesh
Kumar and Rajkumar. The truck was bearing registration no. UP 51
4
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
B 4395. The memorandum of the apprehended persons were
recorded. They informed that two trucks had started from Surat for
Kanpur. On the way, the driver and cleaner of one truck were offered
excessive liquor and thereafter they have been killed. The dead body
of the driver Bhagwandas was thrown in the Cantt. Area of Guna,
whereas the dead body of cleaner Pandit was thrown in Dharnavada
area of Guna. The appellant Rakesh @ Chhotu brought the said truck
i.e., U.P. 51 B 4395 and the goods were being unloaded in the
abandoned factory premises. Accordingly, FIR was lodged in Police
Station Akbarpur, Kanpur Dehat, Kanpur. The appellant and
Rajkumar were arrested and the truck as well as bundles of cloths
were seized.
5. On 4-5-2000, the Sub-Inspector A.K. Singhal formally arrested
the appellant and Rajkumar in Crime No. 178/2000.
6. Radheshyam, the nephew of the driver Bhagwandas, on the
basis of information received from Police Station, Akbarpur, moved
an application on 6-5-2000 for identification of dead body and for
receipt of the same. Accordingly, after taking due permission, the
dead body of the unknown person was taken out from the grave, and
it was identified by Radheshyam and Vijay Pratap Singh. The
identification memo was prepared, and the dead body was handed
over to Radheshyam for cremation purposes. On 11-5-2000, the
investigating officer collected blood from the truck no. UP 51 B 4395
which was parked in the premises of Police Station Akbarpur. The
5
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
memorandum of the appellant Rakesh was recorded and on the basis
of disclosure made by him, blood stained cloths of the deceased were
recovered from Amola Ghati. The memorandum of the co-accused
Rajkumar was also recorded and on his disclosure some stones were
recovered. The seized articles were sent to F.S.L.,Gwalior. The
police after completing the investigation, filed the charge sheet
against the appellant Rakesh Kumar and co-accused Rajkumar for
offence under Sections 302,201,392 and 397 of IPC.
7. The Trial Court by order dated 24-5-2002, framed charges
under Sections 302 or in the alternative under Section 302/34 of IPC,
201, 392,397 of IPC.
8. The appellant and co-accused Rajkumar abjured their guilt and
pleaded not guilty.
9. The prosecution examined Narendra Pratap Singh (P.W.1),
Motilal (P.W.2), Dev Singh (P.W.3), Amrat Lal (P.W.4), Kallu (P.W.5),
Vijay Pratap Singh (P.W.6), Gurucharan Lal Sehgal (P.W.7),
Shrinarayan Awasthi (P.W.8), Bhanu Pratap Singh Tomar (P.W.9),
Balram (P.W.10), Anil Shrivastava (P.W.11), Shriram (P.W.12),
Ramlal Mehta (P.W. 13), Ravinder Singh (P.W.14), Dr. P.K. Sharma
(P.W. 15), B.R. Premi (P.W. 16), Vinod Kumar Khanna (P.W.17),
Santosh Khare (P.W. 18), Angad Singh (P.W.19), Radheshyam
(P.W.20), Kanhaiyalal (P.W.21) and Dashrath Singh (P.W.22).
10. The appellant did not examine any witness in his defence.
11. It is not out of place to mention here that the co-accused
6
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
Rajkumar expired during the pendency of the Trial.
12. The Trial Court by the impugned judgment and sentence,
convicted and sentenced the appellant for the above mentioned
offences.
13. Challenging the impugned judgment, it is submitted by the
Counsel for the appellant, that the case is based on circumstantial
evidence, and the prosecution has failed to prove the chain of
circumstances. There is nothing on record to suggest that cloths
seized from Amola Ghati were that of the deceased Bhagwandas.
Vijay Pratap Singh (P.W.6) has stated that on 2-5-2000, he had
received an information that the driver Bhagwandas has been killed
and the truck has been taken away. Thus, it is clear that the
prosecution was already aware of the name of the deceased, therefore,
it is incorrect to suggest that the dead body was identified only after
the appellant was arrested in Kanpur on 3-5-2000. It is further
submitted that any fact other than discovery is not admissible in the
light of Section 25 and 26 of Evidence Act.
14. Per contra, the Counsel for the State has supported the findings
recorded by the Trial Court.
15. Heard the learned Counsel for the parties.
16. Before adverting to the facts of the case, this Court would like
to find out as to whether the deceased Bhagwandas died a homicidal
death or not?
17. The post-mortem of the unknown dead body, who was
7
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
subsequently identified as Bhagwandas, was conducted by Dr. P.K.
Sharma (P.W.15) and found the following injuries :
Face features are distorted. Body in state of decomposition.
Foul smell all over the body. Maggots are present crawling
all over the body - Time since death within 5 days.
Penis not circumcised indicate Hindu
Skin and soft tissue on face from frontal hair line to
mandible one ear to another ear is absent exposing bones.
Height 163 cms Maxilla bones are missing. Mandible some
teeth (details shown in Post-mortem report) not present.
Skin is missing. Left side of chest left upper part of
abdomen front of neck skin showing nibbling effect indicate
tkuojksa us [kk;k gSA
Following injures are seen :
(i) Stab Wound - on front of right chest region on mid
Clavicular line 11 cm below clavicle 4 x 2 cm deep upto
chest cavity.
(ii) Incised wound - Right side of chest ant-axillary line
5 cm right to injury no.1 5 cm x 1/12 cm muscle deep.
(iii) Stab wound - site right side deltoid region - 7 cm
below to the tip of shoulder size 2.5x.5cm 5 cm muscle
deep.
(iv) Incised wound - right arm antro-laterl-aspect size 4 x
2 cm wound is entering into muscle coming out from ant.
Medial aspect by making exit wound 12 x .5 cm tran 5 cm
(v) Incised wound - on back left shoulder size 2.5 x .5
cm depth 1 cm
(vi) Incised wound - on back left shoulder size 2.5 x .5
depth 1 cm - 2 cm below injury no. 5.
(vii) Incised wound - 2 cm below injury no. 6 3 x 1 x deep
1 cm
(viii) stab wound - back of right shoulder 5 cm below
shoulder size 4.5 x 5 cm wound entry chest cavity coming
out 2 ICS and 3rd ICS piercing right lung.
All injuries are ante-mortem in nature blood clots are
present.
The mode of death of unidentified Hindu male is shock due
to multiple Ante-mortem wound over the body causing
hemorrhage. Injuries caused by sharp and penetrating
object.
Time since death within 5 days.
18. The post-mortem report is Ex. P.24. This witness was cross-
examined.
8
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
In cross-examination, this witness stated that the time since
death was assessed by him on the basis of decomposition of the dead
body.
19. Thus, it is clear that the death of unidentified dead body, which
was subsequently identified as that of Bhagwandas was homicidal in
nature.
20. The next question for consideration is that whether the
prosecution has established the guilt of the appellant, beyond
reasonable doubt or not?
21. The case is based on circumstantial evidence. The
Circumstances can be summarized as under :
(i) The deceased Bhagwandas had informed the owner that the
truck has been loaded and would start for Kanpur on 29-4-2000 along
with Cleaner;
(ii) On 2-5-2000, the dead body of one unidentified person was
found in the Cantt. Area of Distt. Guna.
(iii) On 3-5-2000, on the information received from an informer,
the police of Police Station Akbarpur, Kanpur Dehat, raided an
abandoned factory and found that truck No. UP 51 B 4395 was
parked inside the factory premises and four persons were unloading
the bundles of cloths.
(iv) After noticing the police party, all the four persons tried to run
away and also fired gun shots, but two persons were apprehended i.e.,
the appellant and co-accused Rajkumar.
9
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
(v) The appellant made a confessional statement, that two trucks
had started from Surat, and they have killed the driver and owner of
the second truck and have thrown their dead bodies in Distt. Guna
and looted the truck bearing registration No. UP 51 B 4395.
(vi) The appellant was formally arrested by Madhya Pradesh Police
on 4-5-2000 in Police Station Akbarpur, Distt. Kanpur.
(vii) On 6-5-2000, Radheshyam (P.W. 20) made an application for
identification and handing over of the dead body.
(viii) The dead body of unidentified person was dug out of the earth
and it was identified by Radheshyam (P.W.20) and Vijay Pratap Singh
(P.W.6) to be that of Bhagwandas.
(ix) On the memorandum of the appellant, blood stained cloths
were seized from Amola Ghati.
(x) Blood was recovered from the seat of truck bearing no. UP 51
B 4395.
(xi) As per F.S.L. report, human blood was found on the cloths
seized on the disclosure by the appellant as well as blood lifted from
truck bearing registration No. UP 51 B 4395.
(x) Blood group "O" was found Pant, as well as Seat Covers i.e.,
E2 and E3 which were lifted from the truck bearing registration No.
UP 51 B 4395.
(xi) Blood group "B" was found on two seat covers of truck no. UP
51 B 4395.
(x) Conduct of the Appellant.
10
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
22. Before considering the circumstances alleged against the
appellant, this Court would like to consider the law governing field of
circumstantial evidence.
23. The Supreme Court in the case of Sharad Birdhichand Sarda
v. State of Maharashtra, reported in (1984) 4 SCC 116 has held as
under :
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case against
an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned "must or should" and not
"may be" established. There is not only a grammatical
but a legal distinction between "may be proved" and
"must be or should be proved" as was held by this
Court in Shivaji Sahabrao Bobade v. State of
Maharashtra where the observations were made: [SCC
para 19, p. 807: SCC (Cri) p. 1047]
"Certainly, it is a primary principle that the accused
must be and not merely may be guilty before a court
can convict and the mental distance between 'may be'
and 'must be' is long and divides vague conjectures
from sure conclusions."
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive nature
and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.
24. The Supreme Court in the case of Pudhu Raja v. State
11
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
reported in (2012) 11 SCC 196 has held as under :
15. In a case of circumstantial evidence, the prosecution
must establish each instance of incriminating circumstance
by way of reliable and clinching evidence, and the
circumstances so proved, must form a complete chain of
events, on the basis of which, no conclusion other than one
of guilt of the accused can be reached. Undoubtedly,
suspicion, however grave it may be, can never be treated as
a substitute for proof. While dealing with a case of
circumstantial evidence, the court must take utmost
precaution whilst finding an accused guilty solely on the
basis of the circumstances proved before it.
25. The Supreme Court in the case of Ram Singh v. Sonia,
reported in (2007) 3 SCC 1 has held as under :
39. The principle for basing a conviction on the basis of
circumstantial evidence has been indicated in a number of
decisions of this Court and the law is well settled that each
and every incriminating circumstance must be clearly
established by reliable and clinching evidence and the
circumstances so proved must form a chain of events from
which the only irresistible conclusion about the guilt of the
accused can be safely drawn and no other hypothesis
against the guilt is possible. This Court has clearly sounded
a note of caution that in a case depending largely upon
circumstantial evidence, there is always a danger that
conjecture or suspicion may take the place of legal proof.
The court must satisfy itself that various circumstances in
the chain of events have been established clearly and such
completed chain of events must be such as to rule out a
reasonable likelihood of the innocence of the accused. It has
also been indicated that when the important link goes, the
chain of circumstances gets snapped and the other
circumstances cannot in any manner, establish the guilt of
the accused beyond all reasonable doubts. It has been held
that the court has to be watchful and avoid the danger of
allowing the suspicion to make the place of legal proof, for
sometimes unconsciously it may happen to be a short step
between moral certainty and legal proof. It has been
indicated by this Court that there is a long mental distance
between "may be true" and "must be true" and the same
divides conjectures from sure conclusions.
26. The Supreme Court in the case of Inspector of Police v. John
12
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
David, reported in (2011) 5 SCC 509 has held as under :
Case on circumstantial evidence
33. The principle for basing a conviction on the edifice of
circumstantial evidence has also been indicated in a number
of decisions of this Court and the law is well settled that
each and every incriminating circumstance must be clearly
established by reliable and clinching evidence and the
circumstances so proved must form a chain of events from
which the only irresistible conclusion that could be drawn
is the guilt of the accused and that no other hypothesis
against the guilt is possible.
34. This Court has clearly sounded a note of caution that in
a case depending largely upon circumstantial evidence,
there is always a danger that conjecture or suspicion may
take the place of legal proof. The court must satisfy itself
that various circumstances in the chain of events have been
established clearly and such completed chain of events must
be such as to rule out a reasonable likelihood of the
innocence of the accused. It has also been indicated that
when the important link goes, the chain of circumstances
gets snapped and the other circumstances cannot in any
manner, establish the guilt of the accused beyond all
reasonable doubts. It has been held that the court has to be
watchful and avoid the danger of allowing the suspicion to
take the place of legal proof. It has been indicated by this
Court that there is a long mental distance between "may be
true" and "must be true" and the same divides conjectures
from sure conclusions.
35. This Court in State of U.P. v. Ram Balak had dealt with
the whole law relating to circumstantial evidence in the
following terms: (SCC pp. 555-57, para 11)
"11. '9. It has been consistently laid down by this
Court that where a case rests squarely on
circumstantial evidence, the inference of guilt can be
justified only when all the incriminating facts and
circumstances are found to be incompatible with the
innocence of the accused or the guilt of any other
person. (See Hukam Singh v. State of Rajasthan,
Eradu v. State of Hyderabad, Earabhadrappa v. State
of Karnataka, State of U.P. v. Sukhbasi, Balwinder
Singh v. State of Punjab and Ashok Kumar Chatterjee
v. State of M.P.) The circumstances from which an
inference as to the guilt of the accused is drawn have
to be proved beyond reasonable doubt and have to be
shown to be closely connected with the principal fact
sought to be inferred from those circumstances. In
13
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
Bhagat Ram v. State of Punjab it was laid down that
where the case depends upon the conclusion drawn
from circumstances the cumulative effect of the
circumstances must be such as to negative the
innocence of the accused and [bring home the
offences] beyond any reasonable doubt.
10. We may also make a reference to a decision of this
Court in C. Chenga Reddy v. State of A.P. wherein it
has been observed thus: (SCC pp. 206-07, para 21)
"21. In a case based on circumstantial evidence, the
settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved
and such circumstances must be conclusive in nature.
Moreover, all the circumstances should be complete
and there should be no gap left in the chain of
evidence. Further, the proved circumstances must be
consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence."
11. In Padala Veera Reddy v. State of A.P. it was laid
down that when a case rests upon circumstantial
evidence, such evidence must satisfy the following
tests: (SCC pp. 710-11, para 10)
"(1) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and
firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards the guilt of the
accused;
(3) the circumstances, taken cumulatively, should form
a chain so complete that there is no escape from the
conclusion that within all human probability the crime
was committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should
be inconsistent with his innocence."
* * *
16. A reference may be made to a later decision in
Sharad Birdhichand Sarda v. State of Maharashtra.
Therein, while dealing with circumstantial evidence, it
has been held that the onus was on the prosecution to
prove that the chain is complete and the infirmity of
lacuna in prosecution cannot be cured by false defence
or plea. The conditions precedent in the words of this
14
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
Court, before conviction could be based on
circumstantial evidence, must be fully established.
They are: (SCC p. 185, para 153)
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established. The
circumstances concerned "must" or "should" and not
"may be" established;
(2) the facts so established should be consistent only
with the hypothesis of the guilt of the accused, that is
to say, they should not be explainable on any other
hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature
and tendency;
(4) they should exclude every possible hypothesis
except the one to be proved; and
(5) there must be a chain of evidence so complete as
not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused.'
These aspects were highlighted in State of Rajasthan
v. Raja Ram, at SCC pp. 187-90, paras 9-16 and State
of Haryana v. Jagbir Singh."
27. Thus, it is clear that the prosecution must prove that the chain
of circumstances is complete leaving no other option except that it
was the accused and accused only who has committed the offence.
The deceased Bhagwandas had informed the owner that the truck
has been loaded and would start for Kanpur on 29-4-2000 along
with Cleaner
28. The Deceased Bhagwandas was the driver of Truck bearing
registration No. UP 51 B 4395 and Vijay Pratap Singh (P.W.6) is the
father of Rohit and brother of Jayendra Pratap Singh, who are the
owners of Truck No. UP 51 B 4395. He has stated that on 28-4-2000
at about 9 P.M., the driver Bhagwandas informed him from Surat that
15
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
the goods have been loaded and he would start for Kanpur on the
next morning. This witness was not cross-examined at all. Thus, the
circumstance that Bhagwandas was the driver of Truck No. UP 51 B
4395 and had informed Vijay Pratap Singh (P.W.6) on 28-4-2000 at 9
P.M., that the goods have been loaded and he would start for Kanpur
on the next morning, is held to be proved.
On 2-5-2000, the dead body of one unidentified person was found
in the Cantt. Area of Distt. Guna.
29. Bhanu Pratap Singh Tomar (P.W. 9) was posted as S.H.O.,
Police Station Cantt. He received an information on 2-5-2000 from
Police Control Room, Guna, that the dead body of an unknown
person is lying on A.B. Road near Bilonia village. This information
was recorded in Rojnamchasanha No. 48. This witness went to spot
and found the dead body of a male, which was in putrefied condition
with multiple injuries on it. Foul smell was coming from the dead
body. Accordingly, merg information was recorded at 0 on the spot,
Ex. P.10 and on the basis of which, merg enquiry, no. 25/2000 was
registered,, Ex. P. 11. The F.I.R., Ex. P11 was registered. Safina
form, Ex. P.6 was issued and Lash Panchnama, Ex. P.7 was prepared.
30. Thus, it is clear that the dead body of one unidentified person
was found on 2-5-2000 at 16:35 which is evident from Merg
information, Ex. P.11 and Merg enquiry was registered at 19:10.
On 3-5-2000, on the information received from an informer, the
police of Police Station Akbarpur, Kanpur Dehat, raided an
16
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
abandoned factory and found that truck No. UP 51 B 4395 was
parked inside the factory premises and four persons were
unloading the bundles of cloths.
And
After noticing the police party, all the four persons tried to run
away and also fired gun shots, but two persons were
apprehended i.e., the appellant and co-accused Rajkumar.
31. B.R. Premi (P.W. 16) has stated that he was posted as S.H.O.,
Police Station Akbarpur. He received an information that Katiyar
factory, situated Jainpur is lying closed for the last several days and
in that premises, one truck is being unloaded which appears to be
suspicious. The police party immediately went to the spot and found
that one truck was parked inside the factory premises and two
persons were on the truck and two persons were standing on the
ground and the bundles of cloths were being unloaded. After
noticing the police party, there was helter skelter and gun shots were
also fired on the police party, however, the police succeeded in
apprehending two persons, who disclosed their names as appellant
Rakesh Kumar and Rajkumar. One country made pistol and 2 live
cartridges were seized from each of the accused and they were not
having any license to possess them. The memorandum of the
apprehended persons were recorded. The appellant Chhotu informed
that Kallu Yadav and Rafiq had also gone with them from Kanpur to
Surat. Both trucks were loaded with cloths and were coming back.
17
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
Near Guna they consumed liquor. The driver and cleaner of another
truck namely Habib and Pandit had consumed excessive liquor,
therefore, he started driving that truck, whereas Rajkumar was
driving another truck. Near Guna they killed the Driver Habib and
Cleaner Pandit and threw their bodies. Kallu and Rafiq had also
assisted them. One truck was left at Kanpur by Rajkumar and
another truck was brought to the factory with an intention to sell the
cloth. The truck no. UP 51 B 4395 and bundles of cloths were seized
and the registration of another truck was U.P. 78 B 9494. Thereafter,
he came to know that in respect of truck, offences were registered in
Cantt and Dharnavada Police Station, Guna and thereafter, the M.P.
Police seized the same. The bundles of cloths were handed over on
supurdagi, but the samples were kept. The copy of F.I.R. registered
on 3-5-2000 at Police Station Akbarpur is Ex. P.9. This witness was
cross-examined.
In cross-examination, stated that he did not take independent
witnesses to the factory premises and no separate seizure memo or
arrest memo were prepared. He denied that false case was prepared
in the Police Station.
32. Thus, it is proved that the appellant and co-accused Rajkumar
were apprehended in an abandoned Factory premises and they were
unloading the goods from truck No. UP 51 B 4395.
The appellant made a confessional statement, that two trucks had
started from Surat, and they have killed the driver and owner of
18
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
the second truck and have thrown their dead bodies in Distt.
Guna and looted the truck bearing registration No. UP 51 B 4395.
33. For the reasons mentioned above, it is held that the appellant
Rakesh Kumar @ Chhotu @ Lallu also made a confessional
statement that after killing the driver and cleaner of truck No. UP 51B
4395, their dead bodies have been thrown.
The appellant was formally arrested on 4-5-2000 in Police Station
Akbarpur, Distt. Kanpur.
34. On 6-2-2004, the appellant Rakesh Kumar admitted his arrest,
accordingly, his arrest memo was marked as Ex. P.20, according to
which he was arrested on 4-5-2000 by H. Constable Radheshyam and
Constable Vinod Tiwari of Kotwali Police Station, Guna. Thus, it is
proved that the appellant Rakesh Kumar Sharma was formally
arrested in Police Station Akbarpur, Kanpur Dehat, Kanpur on 4-5-
2000.
On 6-5-2000, Radheshyam (P.W. 20) made an application for
identification and handing over of the dead body.
And
The dead body of unidentified person was dug out of the earth
and it was identified by Radheshyam (P.W.20) and Vijay Pratap
Singh (P.W.6) to be that of Bhagwandas.
35. Bhanu Pratap Singh Tomar (P.W.9) has stated that on 6-5-2000,
Radheshyam, resident of village Mudakiha had made a written
application, Ex. P.12 for identification of dead body of his uncle, and
19
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
accordingly, he had directed H.C.M. to dig out the dead body.
36. Radheshyam Choudhary (P.W. 20) has stated that on the
information given by Police Station Akbarpur about the murder of his
uncle Bhagwandas Choudhary, he came to Guna and identified the
dead body of Bhagwandas, vide identification memo Ex. P.9. The
dead body was received by him and the receipt is Ex.P.29. His uncle
Bhagwandas was a driver of a truck. This witness was not cross-
examined at all. Thus, the identification of dead body of
Bhagwandas remained unchallenged.
37. Vijay Pratap Singh (P.W.6) has also identified the dead body of
his driver Bhagwandas. This witness was not cross-examined at all.
Thus, the identification of dead body of Bhagwandas by this witness
also remained unchallenged.
38. Thus, it is held that the dead body which was recovered on 2-5-
2000 was that of Bhagwandas.
On the memorandum of the appellant, blood stained cloths were
seized from Amola Ghati.
39. Motilal (P.W.2) is the seizure witness, who has stated that on
the disclosure made by the appellant, One Darrie (Cotton Carpet),
Gulband, underwear and quilt were seized from Amola Valley. The
articles were lying in scattered condition. The seizure memo is Ex.
P.4.
40. Challenging the evidence of this witness, it is submitted that
this witness has stated that Raju had disclosed the place where the
20
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
articles were lying. Thus, it is clear that the articles were recovered
on the disclosure made by the co-accused Raju.
41. Considered the submission made by the Counsel for the
appellant.
42. Motilal (P.W.2) in para 1 of his examination-in-chief had stated
that the name of the appellant is Raju. Thus, there was some
confusion in the mind of Motilal (P.W. 2) with regard to the name of
appellant. Therefore, his evidence that Raju had disclosed the
articles has to be considered in the light of para 1 of his examination-
in-chief, and the defence has also not confronted him by pointing out
that the appellant is not Raju. Thus, it is held that in fact the cloths
were recovered on the disclosure made by the appellant.
43. Dev Singh (P.W 3) is the another witness of seizure who did
not support the prosecution case.
44. Bhanupratap Singh Tomar (P.W.9) is the investigating officer,
who had recorded the memorandum of the appellant, Ex. P.2. On the
basis of disclosure made by appellant, one blood stained Darrie, one
pant of pink colour which was stained with blood, one torn pant
stained with diesel and blood, one blue colour Muffler stained with
diesel and blood were seized vide seizure memo Ex. P.4.
45. It is submitted by the Counsel for the appellant, that since,
Bhanu Pratap Singh Tomar (P.W. 9) is a police personal, therefore, his
evidence with regard to disclosure made by appellant should not be
believed.
21
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
46. Considered the submissions made by the Counsel for the
appellant.
47. It is well established principle of law that the evidence of a
witness cannot be discarded merely on the ground that he is a police
personal.
48. The Supreme Court in the case of Baldev Singh Vs. State of
Haryana reported in (2015) 17 SCC 554 has held as under :
10. There is no legal proposition that evidence of police
officials unless supported by independent evidence is
unworthy of acceptance. Evidence of police witnesses
cannot be discarded merely on the ground that they belong
to police force and interested in the investigation and their
desire to see the success of the case. Prudence however
requires that the evidence of police officials who are
interested in the outcome of the result of the case needs to
be carefully scrutinised and independently appreciated.
Mere fact that they are police officials does not by itself
give rise to any doubt about their creditworthiness.
11. Observing that no infirmity is attached to the testimony
of police officials merely because they belong to police
force and that conviction can be based on the testimony of
police officials in Girja Prasad v. State of M.P., it was held
as under: (SCC pp. 632-33, paras 25-27)
"25. In our judgment, the above proposition does not
lay down correct law on the point. It is well settled that
credibility of witness has to be tested on the
touchstone of truthfulness and trustworthiness. It is
quite possible that in a given case, a court of law may
not base conviction solely on the evidence of the
complainant or a police official but it is not the law
that police witnesses should not be relied upon and
their evidence cannot be accepted unless it is
corroborated in material particulars by other
independent evidence. The presumption that every
person acts honestly applies as much in favour of a
police official as any other person. No infirmity
attaches to the testimony of police officials merely
because they belong to police force. There is no rule of
law which lays down that no conviction can be
recorded on the testimony of police officials even if
22
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
such evidence is otherwise reliable and trustworthy.
The rule of prudence may require more careful scrutiny
of their evidence. But, if the court is convinced that
what was stated by a witness has a ring of truth,
conviction can be based on such evidence.
26. It is not necessary to refer to various decisions on
the point. We may, however, state that before more
than half-a-century, in Aher Raja Khima v. State of
Saurashtra, Venkatarama Ayyar, J. stated: (AIR p. 230,
para 40)
'40. ... The presumption that a person acts honestly
applies as much in favour of a police officer as of
other persons, and it is not judicial approach to
distrust and suspect him without good grounds
therefor. Such an attitude could do neither credit to the
magistracy nor good to the public. It can only run
down the prestige of the police administration.'
27. In Tahir v. State (Delhi), dealing with a similar
question, Dr A.S. Anand, J. (as His Lordship then was)
stated: (SCC p. 341, para 6)
'6. ... Where the evidence of the police officials, after
careful scrutiny, inspires confidence and is found to be
trustworthy and reliable, it can form basis of
conviction and the absence of some independent
witness of the locality to lend corroboration to their
evidence, does not in any way affect the
creditworthiness of the prosecution case.'"
(emphasis in original)
49. It is next contended by the Counsel for the appellant that even
if it is found that the blood stained cloths were recovered from Amola
Valley, but as they were seized from an open space, therefore, it is
clear that the appellant was not in exclusive possession and
knowledge of the same.
50. Considered the submissions made by the Counsel for the
appellant.
51. It is not the case of the appellant, that the cloths were
recovered from the Amola Valley (Ghati), which was accessible to
23
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
general public. How the appellant had knowledge about the fact that
the cloths are lying at a particular place in Amola Ghati ? Since, the
blood stained cloths were seized on the disclosure made by the
appellant, therefore, it is held that on the disclosure made by the
appellant, blood stained cloths, Darrie were seized from Amola
Valley (Ghati). The Supreme Court in the case of Anter Singh Vs.
State of Rajasthan reported in (2004) 10 SCC 657 has held as
under:
15. At one time it was held that the expression "fact
discovered" in the section is restricted to a physical or
material fact which can be perceived by the senses, and that
it does not include a mental fact, now it is fairly settled that
the expression "fact discovered" includes not only the
physical object produced, but also the place from which it is
produced and the knowledge of the accused as to this, as
noted in Pulukuri Kottaya case and in Udai Bhan v. State
of U.P.
16. The various requirements of the section can be summed
up as follows:
(1) The fact of which evidence is sought to be given
must be relevant to the issue. It must be borne in mind
that the provision has nothing to do with the question
of relevancy. The relevancy of the fact discovered
must be established according to the prescriptions
relating to relevancy of other evidence connecting it
with the crime in order to make the fact discovered
admissible.
(2) The fact must have been discovered.
(3) The discovery must have been in consequence of
some information received from the accused and not
by the accused's own act.
(4) The person giving the information must be accused
of any offence.
(5) He must be in the custody of a police officer.
(6) The discovery of a fact in consequence of
information received from an accused in custody must
be deposed to.
(7) Thereupon only that portion of the information
24
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
which relates distinctly or strictly to the fact
discovered can be proved. The rest is inadmissible.
17. As observed in Pulukuri Kottaya case it can seldom
happen that information leading to the discovery of a fact
forms the foundation of the prosecution case. It is one link
in the chain of proof and the other links must be forged in a
manner allowed by law. To similar effect was the view
expressed in K. Chinnaswamy Reddy v. State of A.P.
52. The Supreme Court in the case of Yakub Abdul Razak
Memon v. State of Maharashtra, reported in (2013) 13 SCC 1 has
held as under :
1706. In State of H.P. v. Jeet Singh this Court dealt with the
issue of recovery from the public place and held: (SCC p.
377, para 21)
"21. The conduct of the accused has some relevance in
the analysis of the whole circumstances against him.
PW 3 Santosh Singh, a member of the Panchayat
hailing from the same ward, said in his evidence that
he reached Jeet Singh's house at 6.15 a.m. on hearing
the news of that tragedy and then accused Jeet Singh
told him that Sudarshana complained of pain in the
liver during the early morning hours. But when the
accused was questioned by the trial court under
Section 313 of the Code of Criminal Procedure, he
denied having said so to PW 3 and further said, for the
first time, that he and Sudarshana did not sleep in the
same room but they slept in two different rooms. Such
a conduct on the part of the accused was taken into
account by the Sessions Court in evaluating the
incriminating circumstance spoken to by PW 10 that
they were in the same room on the fateful night. We
too give accord to the aforesaid approach made by the
trial court."
1707. Similarly, in State of Maharashtra v. Bharat Fakira
Dhiwar, this Court held: (SCC p. 629, para 22)
"22. In the present case the grinding stone was found
in tall grass. The pants and underwear were buried.
They were out of visibility of others in normal
circumstances. Until they were disinterred, at the
instance of the respondent, their hidden state had
remained unhampered. The respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also."
25Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007) 1708. In view of the above, it cannot be accepted that a recovery made from an open space or a public place which was accessible to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that, it will be the accused alone who will be having knowledge of the place, where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage.
1709. In Durga Prasad Gupta v. State of Rajasthan, this Court explained the meaning of possession as: (SCC p. 266, paras 26 & 27) "26. The word 'possession' means the legal right to possession (see Heath v. Drown). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness.)
27. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge."
53. It is next contended by the Counsel for the appellant, that there is nothing on record to suggest that the cloths seized at the instance of the appellant were that of deceased Bhagwandas.
54. Considered the submissions made by Shri Prakhar.
55. It is true that the prosecution has not got the cloths seized from Amola Ghati identified, but the important aspect of the matter is that how the appellant was aware of the fact that blood stained cloths are lying in Amola Ghati. Further, the conduct of the appellant is also relevant under Section 8 of Evidence Act. The Supreme Court in the case of State (NCT of Delhi) vs. Navjot Sandhu reported in (2005) 11 SCC 600 has held as under :
205. Before proceeding further, we may advert to Section 8 26 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007) of the Evidence Act. Section 8 insofar as it is relevant for our purpose makes the conduct of an accused person relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. It could be either a previous or subsequent conduct. There are two Explanations to the section, which explain the ambit of the word "conduct".
They are:
"Explanation 1.--The word 'conduct' in this section does not include statements, unless those statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant."
The conduct, in order to be admissible, must be such that it has close nexus with a fact in issue or relevant fact. Explanation 1 makes it clear that the mere statements as distinguished from acts do not constitute "conduct" unless those statements "accompany and explain acts other than statements". Such statements accompanying the acts are considered to be evidence of res gestae. Two illustrations appended to Section 8 deserve special mention:
"(f) The question is, whether A robbed B. The facts that, after B was robbed, C said in A's presence -- 'the police are coming to look for the man who robbed B', and that immediately afterwards A ran away, are relevant.
* * * (i) A is accused of a crime.
The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant."
206. We have already noticed the distinction highlighted in Prakash Chand case between the conduct of an accused which is admissible under Section 8 and the statement made to a police officer in the course of an investigation which is hit by Section 162 CrPC. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as "conduct" under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct, 27 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007) falls within the purview of Section 27, as pointed out in Prakash Chand case. In Om Prakash case this Court held that: (SCC p. 262, para 14) "[E]ven apart from the admissibility of the information under Section 27, the evidence of the investigating officer and the panchas that the accused had taken them to PW 11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused."
56. Thus, it is clear that the conduct of the appellant in disclosing that he had thrown the cloths of the deceased as well as Darrie etc in the Amola Ghati is relevant and admissible. Thus, it is held that the blood stained cloths of the deceased Bhagwandas were seized from Amola Ghati at the instance of the appellant. Blood was recovered from the seat of truck bearing no. UP 51 B 4395.
57. Bhanu Pratap Singh Tomar (P.W.9) has stated that on 11-5- 2000, he had seized the truck bearing registration no. UP 51 B 4395 and blood was collected from the cleaner side seat of the truck, under the cleaner seat, angle on the cleaner side as well as on the cleaner seat vide seizure memo Ex. P.14. In cross-examination, no question was put to this witness with regard to seizure of blood from the truck. Thus, the recovery of blood from the cleaner side of the truck no. UP 51 B 4395 remained unchallenged. Thus, it is held that from the cleaner side of the truck No. UP 51 B 4395, blood was recovered which was seized vide seizure memo Ex. P.14.
As per F.S.L. report, Human blood was found on the cloths as 28 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007) well as blood lifted from truck bearing registration No. UP 51 B 4395.
58. As per F.S.L. report, Ex. P.18 Darrie (Cotton carpet) was marked as Article A1, Pant was marked as A2, Pant was marked as A3, Muffler was marked as A4, Seat Cover was marked as E1, Seat Cover marked as E2, Seat Cover marked as E3, Cotton was marked as F, piece of foam was marked as G, and Cotton was marked as H, and human blood was found on all these articles. Thus, it is held that the blood stained cloths which were recovered at the instance of the appellant and the cleaner side of the truck no. UP 51 B 4385 found to be stained with Human Blood.
Blood group "O" was found Pant, as well as Seat Covers i.e., E2 and E3 which were lifted from the truck bearing registration No. UP 51 B4395.
59. As per F.S.L. report, Ex. 19, Human blood of "O" group was found on Pant, one Seat Cover and piece of foam. The F.S.L. report, Ex. P.18 and P.19 were not challenged by the appellant. Thus, it is held that Pant seized at the instance of the appellant from Amola Ghati and seat cover of the truck no. UP 51 B 4395 as well as a piece of foam recovered from the truck no. UP 51 B 4395 were having human blood of "O" group.
Blood group "B" was found on two seat covers of truck no. UP 51 B 4395.
60. As per F.S.L. report, Ex. P.19, Human Blood of "B" group was 29 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007) found on two seat covers of cleaner side of the truck. Thus, it is clear that the blood of one more person was found on the seat cover of the cleaner side of the truck no. UP 51 B 4395 and it is the prosecution case that the Driver and Cleaner of the truck no. UP 51 B 4395 were murdered.
Conduct of the Appellant.
61. In the present case, on 3-5-2000, the S.H.O., Police Station Akbarpur, Kanpur Dehat, Distt. Kanpur, received an information that a truck is parked in a suspicious circumstances in a closed factory. When the premises was raided, four persons were found unloading bundles of cloths from Truck No. UP 51 B 4395. Two persons succeeded in running away, whereas two persons were arrested. Even gun shots were fired at the police party. The appellant Rakesh Kumar and another co-accused Raju were arrested. The appellant Rakesh Kumar made a confessional statement, that they have killed the driver and cleaner of the Truck No. UP 51 B 4395 in Guna District and the dead bodies of Driver and Cleaner have been thrown at two different places, i.e., the dead body of cleaner was thrown near Vijaypur whereas the dead body of driver Bhagwandas was thrown 3-4 Km.s prior to Guna and he drove the truck no. UP 51 B 4395 to Kanpur. Thus, the appellant was found in possession of truck No. UP 51 B 4395, whereas according to Vijay Pratap Singh (P.W.6), Bhagwandas was the driver of the truck No. UP 51 B 4395.
62. On the disclosure made by the appellant, blood stained cloths 30 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007) were seized from Amola Ghati and Human blood "O" was found on the pant as well as the seat cover of cleaner side seat of the truck as well as a piece of foam also recovered from the truck No. UP 51 B 4395.
63. Prior to that on 2-5-2000, the dead body of one unknown person was recovered by Police Station Cantt., Guna and on the application filed by Radheshyam (P.W.20), the said dead body was dug out of the earth and it was identified by Radheshyam (P.W.20) and Vijay Pratap Singh (P.W.6).
64. In the light of Section 8 of Evidence Act, as well as in the light of Judgment passed by Supreme Court in the case of Navjot Sandhu (Supra), the conduct of the appellant is admissible. Whether Vijay Pratap Singh (P.W.6) had got the information of death of Bhagwandas on 2-5-2000
65. By referring to the evidence of Vijay Pratap Singh (P.W.6), it is submitted that since, this witness had already received the information regarding murder of Bhagwandas on 2-5-2000 itself, therefore, it is clear that the identification of the dead body of Bhagwandas on the information given by the appellant is false.
66. Considered the submissions made by the Counsel for the appellant.
67. According to the prosecution case, the Police Control Room, Guna received the information about dead body of an unidentified person on 2-5-2000 at 6:35 P.M. Thus, when the information 31 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007) regarding dead body of an unknown person was received at 6:35 P.M., and thereafter, it was recovered, then the question of receiving information regarding murder of Bhagwandas on 2-5-2000 by Vijay Pratap Singh (P.W.6) is not possible. Further more, it is well established principle of law that the Court, while appreciating the evidence, has to consider the evidence as a whole and the trustworthy evidence should not be discarded on the basis of one or two lines in the evidence of a witness.
68. The Supreme Court in the case of Ashok Kumar v. State of Haryana, reported in (2010) 12 SCC 350 has held as under :
42. This Court has to keep in mind the fact that the incident had occurred on 16-5-1988 while the witnesses were examined after some time. Thus, it may not be possible for the witnesses to make statements which would be absolute reproduction of their earlier statement or line to line or minute to minute correct reproduction of the occurrence/events. The Court has to adopt a reasonable and practicable approach and it is only the material or serious contradictions/variations which can be of some consequence to create a dent in the case of the prosecution.
Another aspect is that the statements of the witnesses have to be read in their entirety to examine their truthfulness and the veracity or otherwise. It will neither be just nor fair to pick up just a line from the entire statement and appreciate that evidence out of context and without reference to the preceding lines and lines appearing after that particular sentence. It is always better and in the interest of both the parties that the statements of the witnesses are appreciated and dealt with by the Court upon their cumulative reading.
69. The Supreme Court in the case of Shyamal Ghosh v. State of W.B., reported in (2012) 7 SCC 646 has held as under :
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as 32 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007) a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
Conclusion
70. After considering the totality of the facts and circumstances of the case, this Court is of the considered opinion, that the prosecution has succeeded in establishing the allegation that deceased Bhagwandas, driver of truck No. UP 51 B 4395 was killed by the appellant and co-accused persons including Raju @ Rajkumar (died during the pendency of the Trial) and his dead body was thrown and blood stained cloths were thrown in Amola Ghati and robbed the Loaded Truck No. UP 51 B 4395 which was brought by the appellant to Kanpur, where they were unloading the bundles of the Cloths with an intention to sell them. Thus, the guilt of the appellant for offence under Section 302/34, 392, 201 of IPC is proved against the appellant beyond reasonable doubt.
71. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment. Therefore, the sentence awarded by the Trial Court, doesnot call for any interference.
72. Ex-consequenti, the Judgment and sentence dated 27-12-2006 passed by Additional Sessions Judge, Guna in S.T. No. 345 of 2000 is hereby affirmed.
33
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)
73. The appellant is in jail. He shall undergo the remaining jail sentence.
74. Let a copy of this judgment, be provided immediately to the appellant, free of cost.
75. The record of the Trial Court be sent back along with copy of this judgment for necessary information and compliance.
76. The appeal fails and is hereby Dismissed.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
ARUN KUMAR MISHRA
2022.02.17 17:42:53 +05'30'