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. 240 of 2007)
HIGH COURT OF MADHYA PRADESH
GWALIOR BENCH
DIVISION BENCH
G.S. AHLUWALIA
&
DEEPAK KUMAR AGARWAL J.J.
Cr.A. No. 240 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 : 03-02-2022
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, Guna in S.T. No. 246 of 2000, by which the appellant has been convicted under Section 302/34 and 201 of 2 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) IPC and has been sentenced to undergo the Life Imprisonment and fine of Rs. 1000/- in default 10 months R.I. for offence under Section 302/34 of IPC and Rigorous Imprisonment of 6 years and a fine of Rs. 1000/- in default 10 months R.I. for offence under Section 201 of IPC.
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. It is not out of place to mention here that charge sheet was filed against the appellant and Raju @ Rajkumar. However, Rajkumar expired during the pendency of the Trial.
4. Further, the driver and cleaner of truck no. UP 51 B 4395 were killed and their dead bodies were thrown at two different places falling within the territorial jurisdiction of Police Station Dharnavada 3 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) and Police Station Cantt. Distt. Guna. Therefore, two different FIRs were registered and two different charge sheets were filed. The present case is with regard to murder of Cleaner Pandit @ Punnu @ Vinod, whereas Cr.A. No.237/2007 is with regard to murder of Driver Bhangwandas. Both the Criminal Appeals have been heard simultaneously.
5. According to the prosecution case, on 2-5-2000, the police station Dharnavada received a telephonic information that on the right side of A.B. Road, near Pagara culvert, the dead body of an unknown person is lying. Accordingly, the SHO, Police Station Dharnavada went to the spot. Safina form was issued and Lash Panchnama was prepared. The dead body of unknown person was sent for post-mortem. Dehati Nalishi was recorded.
6. 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 4 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) succeeded in apprehending two persons, namely the appellant Rakesh Kumar and Rajkumar. The truck was bearing registration no. UP 51 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 Bhangwandas 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.
7. On 4-5-2000, appellant was formally arrested in Crime No. 71/2000 registered at Police Station Dharnavada, Distt. Guna.
8. The memorandum of the appellant was recorded and accordingly, Kurta and torn pieces of Pajama were seized on the disclosure made by the appellant. Similarly on 2-5-2000 itself, one bag and one piece of cloth stained with blood were also seized. The blood stained seat cover of cleaner side of the truck was also seized. The seized articles were sent to F.S.L. The dead body was got identified. The police after completing the investigation, filed the charge sheet for offence under Section 302,201,392,397 of IPC. 5
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007)
9. The prosecution examined Abdul Kalam (P.W.1), Siddhnath Singh (P.W.2), Harnam Singh (P.W.3), Prabhulal (P.W.4), Veerbhan Singh (P.W. 5), Vijay Pratap Singh (P.W. 6), Vinod Tiwari (P.W.7), Kunwar Singh Rawat (P.W.8), Radheshyam (P.W.9), Salimuddin (P.W. 10), Shrinarayan Awasthy (P.W.11), Bhanu Pratap Singh (P.W.
12), Dr. S.K. Jain (P.W. 13), Balram (P.W. 14), Lalaram (P.W. 15), G.A. Khan (P.W. 16), Mohan Singh (P.W. 17), B.R. Premi (P.W. 18), Santosh Khare (P.W. 19), Kanhaiyalal (P.W.20), and Dashrath (P.W.21).
10. The appellant did not examine any witness in his defence.
11. The Trial Court by impugned judgment, convicted and sentenced the appellant for the offences mentioned above.
12. Challenging the conviction recorded by the Trial Court, it is submitted by the Counsel for the appellant, that the prosecution has failed to complete the chain of circumstances. The guilt of the appellant has not been proved beyond reasonable doubt.
13. Per contra, the Counsel for the State has supported the findings recorded by the Trial Court.
14. Heard the learned Counsel for the parties.
15. Before adverting to the facts of the case, this Court would like to consider as to whether the deceased Pandit @ Punnu @ Vinod died a homicidal death or not?
16. Dr. S.K. Jain (P.W. 13) conducted the post-mortem of the deceased and found following injuries on his body : 6
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) Rigor Mortis passed away. Body of Male of 5 ft 4 inch height having no cloths on body, face disfigured, foul smell, multiple blisters present on body some of them ruptured. Skin of upper jaw and upper lip and nose absent, upper jaw divided in two parts from its midline. Clotted blood present on face and neck. Little blood on chest, stomach and pubic region. Tongue protruding out. All incisor teeth present. Abdomen distended small intestine protruding out of abdomen. No tattoo marks present on body. Penis scrotum swollen, ..... of glans penis visible. French cut beard present. Eyes closed right side of face compressed.
(i) Lacerated wound of 4 inch x 3 inch x bone deed transverse on right frontal region at hair line present with multiple fracture of frontal and both parietal bone with clotted blood on surrounding region.
(ii) Incised wound on anterior surface of neck transverse 5 inch x ½ inch x 2 inch deep cutting trachea and vesicles between chin and cricoid cartilage
(iii) Stab wound vertical 2 ½ inch x ½ inch x deep upto peritoneal cavity through which intestine protruding out level of umbilicus 3 inch away from umbilicus left side.
(iv) Stab wound 2x1 inch deep upto peritoneal cavity on left side about ½ inch away from umbilicus at the level of umbilicus intestine protruding out of the wound vertical in direction clotted blood below wound present. All the injuries were ante-mortem in nature. Injury no.1 was caused by hard and blunt object, whereas injuries no. 2,3 and 4 were caused by sharp and edged weapon. Finger tips of both hand preserved and handed over to Police.
Cause of death due to shock caused by hemorrhage and multiple injuries. The post-mortem report is Ex. P. 19.
17. This witness was not cross-examined at all.
18. Thus, it is held that the death of the Pandit @ Punnu @ Vinod was homicidal in nature.
19. Now, the next question for consideration is that whether the appellant along with other co-accused persons has killed the deceased or not?
20. Siddhnath Singh (P.W.2) has stated that on 2-5-2000, he was 7 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) posted as S.H.O., Police Station Dharnavada. He received a telephonic information from an unknown person that the dead body of an unknown person is lying near Pagara culvert on the right side of A.B. Road. Accordingly, he went to spot. Safina form, Ex. P.2 was issued and Lash Panchnama, Ex. P.3 was prepared. The requisition for post-mortem, Ex. P.4 was given. The spot map, Ex. P.5 was prepared. Dehati Nalishi, Ex. P.6 was written on the spot. The memorandum of appellant, Ex. P.7 was recorded and he informed that he had thrown knife and cloths in between Bhadora and Patai. The Kurta and torn pajama were seized vide seizure memo Ex. P.8.
21. He further stated that on 2-5-2000, he had seized one bag and a piece of cloth which was stained with blood vide seizure memo Ex. P.9. He further seized seat cover of cleaner side of the truck vide seizure memo Ex. P.1. The seized articles were sent to F.S.L. This witness was cross-examined.
In cross-examination, he stated that he had received the information at about 15:00. He did not seize any shirt from the truck. He went to Amola Ghati in search of knife but could not recover. The torn pieces of cloths were lifted from various places. He denied that the proceedings were done in the police station. He denied that the spot map was prepared in the police station.
22. Thus, it is clear that on the telephonic information, this witness recovered the dead body and on the memorandum of the appellant, Kurta and torn pajama were seized.
8
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007)
23. Harnam Singh (P.W.3) and Prabhulal (P.W.4) have stated that one dead body was lying near the road. The Safina form Ex. P.2, Lash Panchnama Ex. P.3, Spot Map, Ex. P.3 and seizure memo, Ex. P.9 were prepared in their presence. The dead body was naked and foul smell was coming. In cross-examination, these witness denied that they were summoned in the police station, but clarified that they were called at the place where dead body was lying.
24. Virbhan Singh (P.W.5) and Lalaram (P.W. 15) have stated that on 20-5-2000, the appellant had given a memorandum, Ex. P.7. These witnesses were cross-examined.
In cross-examination, it was stated by Virbhan Singh (P.W.5), that he doesnot recollect that who was the second witness of memorandum, Ex. P.7. He denied that no information as contained in memorandum, Ex. P.7 was given. Lalaram (P.W. 15) admitted that he was working under S.H.O., Siddhnath Singh (P.W. 2) but denied that he has falsely signed the documents.
25. Vinod Tiwari (P.W.7) and Radheshyam (P.W.9) have stated that on 4-5-2000, the appellant was arrested vide arrest memo Ex. P.1. On 4-5-2000 itself, the appellant had given a memorandum, Ex. P.13. These witnesses were cross-examined.
They denied that they did not go to Police Station Akbarpur, Kanpur Dehat, Distt. Kanpur, and all proceedings were done at Dharnavada, Distt. Guna.
26. Salimuddin (P.W. 10) has stated that some cloths were seized 9 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) by the S.H.O., vide seizure memo Ex. P.8. He further stated that only S.H.O., had come and had shown the place, where cloths were lying. In cross-examination, he stated that he had not seen any other person except the police, but denied that he did not go to the spot. However, he admitted that the cloths were seized from open place which was accessible to every one.
27. Thus, it is clear that this witness has not stated that blood stained cloths were seized on the disclosure made by the appellant.
28. Bhanu Pratap Singh Tomar (P.W. 12) is the investigating officer of Crime No. 178/2000 registered at Police Station Cantt., Guna and stated that FIR which was registered in Crime No. 178/2000 at police station Cantt., Distt. Guna is Ex. P.18. The driver and cleaner of the truck were killed. Since, the dead body of cleaner was recovered from a place within territorial jurisdiction of Police Station Dharnavada, therefore, the said offence was investigated by Police Station Dharnavada.
29. Abdul Kalam (P.W.1) and Mohan Singh (P.W. 17) are witnesses of seizure of truck no. UP 51B4395 as well as of seizure of blood from the truck, but both of them have not supported the prosecution story.
30. 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 stated that on 28-4-2000 at about 9 P.M., the driver Bhagwandas informed him from Surat that the goods have been 10 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) 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 goods have been loaded and he would start for Kanpur on the next morning stands proved. However, he further stated that on 2-5-2000, he was informed by Subhash Khatiyal, owner of New Malik Transport Company that his truck was looted at the border of Guna and his driver and cleaner have been killed and the truck and goods have been recovered at Kanpur.
31. Balram (P.W.14) has identified the dead body of unknown person as that of Pandit @ Punnu @ Vinod. The identification memo is Ex. P.20.
32. 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 in 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 11 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) 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. 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. The copy of F.I.R. registered on 3-5-2000 at Police Station Akbarpur is Ex. P.16. This witness was cross-examined.
In cross-examination, he admitted that he did not take any independent witness to the abandoned/closed factory premises. There is no habitat within radius of ½ km of the factory. However, one factory was operational at a distance of 2 furlong from the closed factory.
33. Shri Narayan Awasthy (P.W.11) is posted as Moharir in Police Station Akbarpur, Kanpur Dehat, Distt. Kanpur. He stated that on the 12 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) report of B.R. Premi, he had recorded FIR in crime no. 143/2000 for offence under Section 307 of IPC, Crime No. 133/2000 for offence under Section 25 of Arms Act. The FIRs are Ex. P.16. The details of the articles seized from the factory premises are mentioned in Rojnamchasanha No. 40, Ex. P.17. The registration no. of the seized truck was UP 51 B 4395. This witness was cross-examined who admitted that he was not present on the spot and he had registered the FIR on the basis of information received at the police station.
34. G.A. Khan (P.W. 16) had formally arrested the appellant on 4- 5-2000 at Police Station Akbarpur, vide arrest memo Ex. P.11. The memorandum of appellant is Ex. P.13. The dead body was got identified from Balram vide identification memo Ex. P. 20. This witness was cross-examined.
In cross-examination, this witness has stated that witnesses to arrest memo namely Constable Radheshyam and Constable Vinod Kumar Tiwari were not his sub-ordinates, as this witness was posted in Dharnavada Police Station, whereas the witnesses were posted in Police Station Kotwali, Distt. Guna.
35. Dashrath (P.W. 21) was along with B.R. Premi (P.W. 18) when the factory premises was raided.
36. Santosh Kumar (P.W. 19) and Kanhaiyalal (P.W. 20) are the witnesses of supurdagi of the bundles of cloths and truck no. UP 51 B 4395.
Whether cloths which were stained with blood i.e., Kurta and 13 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) torn Pajama were recovered on the disclosure made by the appellant.
37. The Trial Court in para 32 of its judgment has held that the seizure of cloths has not been proved. Therefore, it was held by the Trial Court that the F.S.L. report also looses its effect. Conduct of Appellant
38. According to the prosecution case, on 3-5-2000, the police at Police Station Akbarpur, Kanpur Dehat, Distt. Kanpur, got an information and accordingly the premises of closed factory was raided and truck no. UP 51 B 4395 was found to be parked inside the factory and four persons were unloading the bundles of cloths including the appellant. The Appellant was arrested on the spot. The appellant has not explained the reasons for his presence in the closed factory premises. Thus, it is clear that the appellant was in possession of truck No. UP 51 B 4395. Whereas Vijay Pratap Singh (P.W.6) has stated that Bhagwandas was the driver of the said truck and the dead body of Bhagwandas was also found in Distt. Guna itself. Further more, Vijay Pratap Singh (P.W.6) had stated that in the night of 28-4-2000, the driver Bhagwandas had informed that the truck has been loaded and he would start for Kanpur in the next morning. Thus, it is clear that Bhagwandas was the driver of the truck no. UP 51 B 4395, but his dead body was found within the territorial jurisdiction of Police Station Cantt., Distt. Guna and the appellant was found in possession of truck No. UP 51 B 4395. 14
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) Further, the appellant had disclosed that they have killed the driver Bhagwandas and cleaner Pandit. The dead body has been identified as that of Pandit @ Punnu @ Vinod and his death was homicidal in nature. However, there is nothing on record to suggest that Pandit @ Punnu @ Vinod was the cleaner of the truck, but the information given by the appellant would be admissible under Section 8 of Evidence Act. Further, the dead body of Pandit @ Punnu @ Vinod was not only recovered on 2-5-2000, but it was also disclosed by the appellant about the place where the dead body was thrown.
39. 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 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. 15 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) 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, 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."
40. Further, 130 bundles of cloths were seized from the possession of the appellant. Neither the appellant could explain as to how he came in possession of the truck no. UP 51 B 4395 nor could explain as to how he came in possession of 130 bundles of cloths which were given on Supurdaginama to Vijay Pratap Singh (P.W.6).
41. The Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra, reported in (1984) 4 SCC 116 has held as 16 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) 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.
42. The Supreme Court in the case of Pudhu Raja v. State 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 17 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) basis of the circumstances proved before it.
43. 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.
44. The Supreme Court in the case of Inspector of Police v. John 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 18 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) 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 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 19 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) 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 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; 20
Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) (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."
45. It is next contended by the Counsel for the appellant that B.R. Premi (P.W. 18) has stated that it was informed by the appellant that they have killed the driver of the truck namely Habib, whereas the driver of the truck was Bhagwandas, therefore, it is clear that memorandum of the appellant was not in respect of murder of Bhagwandas.
46. Considered the submissions made by the Counsel for the appellant.
47. While appreciating the evidence, the Court must read the entire evidence and one line here and there should not be made as a tool to discard the reliable direct evidence.
48. 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 21 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) 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.
49. 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 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.
50. After considering the above mentioned circumstances, it is held that following circumstances are proved against the appellant :
(a) On 2-5-2000, a dead body of unknown person was found with multiple injuries on it;
(b) In post-mortem report, Ex. P.19, the death of the unknown person was found to be homicidal in nature ;
(c) On 3-5-2000, the S.H.O., Police Station Akbarpur, Kanpur Dehat, Distt. Kanpur, got an information that one truck is parked inside a closed factory which appears to be suspicious;
(d) The Factory premises was raided and truck no. UP 51 B 4395 22 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) was found parked inside the premises of closed factory;
(e) Four persons were present out of which two were on the truck whereas two persons were on the ground and bundles of cloths were being unloaded;
(f) After noticing the police party, there was helter skelter and gun shots were also fired on the policy party ;
(g) Two persons i.e., Appellant Rakesh Kumar Sharma and co-
accused Rajkumar were arrested on the spot;
(h) A memorandum of the Appellant was recorded in which he disclosed that two trucks had started from Surat for Kanpur. Truck No. UP 51 B4 395 was being driven by Bhagwandas and the deceased Pandit @ Punnu @ Vinod was the cleaner;
(i) Liquor was consumed by all of them and thereafter, the driver Bhagwandas and Cleaner Pandit @ Punnu @ Vinod were killed ;
(j) The appellant brought the truck No. UP 51 B 4395 to Kanpur whereas the co-accused Raju @ Rajkumar drove another truck to Kanpur ;
(k) The dead body of Pandit @ Punnu @ Vinod was found in the territorial jurisdiction of Dharnavada Police Station, Guna, whereas the dead body of Bhagwandas was found in the territorial jurisdiction of Cantt. Police Station, Guna;
(l) The dead body of Pandit @ Punnu @ Vinod was identified by Balram ;
(m) The appellant has not explained as to how he came in 23 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) possession of truck No. UP 51 B 4395 and 130 bundles of cloths, whereas Vijay Pratap Singh has stated that Bhagwandas was the driver of the said truck, who had informed him on 28-4-2000 that the truck has been loaded and he would start from Surat for Kanpur in the morning of next day.
51. The appellant Rakesh Kumar Sharma has also been found guilty of committing murder of Bhagwandas in Cr.A. No. 237/2007.
52. Thus, in view of the aforementioned circumstances, this Court is of the considered opinion, that the prosecution has succeeded in establishing the guilt of the appellant beyond reasonable doubt.
53. So far as the question of sentence is concerned, the minimum sentence for offence under Section 302/34 of IPC is Life Imprisonment, therefore, the Life Imprisonment and a fine of Rs. 1000/- with default sentence of 10 months for offence under Section 302/34 of IPC and Rigorous Imprisonment of 6 years and a fine of Rs. 1000/- in default 10 months R.I. for offence under Section 201 of IPC doesnot require any interference.
54. However, one important aspect of the matter escaped from the notice of the Counsel for the appellant. Since, no order under Section 427 of Cr.P.C. has been passed, therefore, the sentence awarded in this case would start running after the sentence awarded in Cr.A. No. 237/2000 is undergone by the appellant.
55. In the present case, no prayer has been made for making the sentence concurrent. But this Court cannot lose sight of the fact that 24 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) the deceased Bhagwandas and Pandit @ Punnu @ Vinod were the driver and cleaner of Truck No. UP 51 B 4395. They both were killed in one transaction. Since, the dead bodies of the driver Bhagwandas and Cleaner Pandit @ Punnu @ Vinod were thrown at different places in Distt. Guna, therefore, different crime No.s were registered in two different Police Stations i.e., Dharnavada and Cantt., as a result two separate charge sheets were filed.
56. Now the question is that whether this Court should exercise its power under Section 427 of Cr.P.C. in order to make the sentences concurrent instead of consecutive.
57. As already held both the deceased i.e., Bhagwandas and Pandit @ Punnu @ Vinod were killed in a single incident, but since their dead bodies were thrown at different places, therefore, two different Crimes were registered in two different Police Stations. If the dead bodies of both the deceased persons were thrown at a same place, then only one offence would have been registered against the appellant and Section 31 of Cr.P.C. would have come into play, which provides that two Life Sentences cannot be made consecutive. The Supreme Court in the case of O.M. Cherian v. State of Kerala, reported in (2015) 2 SCC 501 has held as under :
13. Section 31(1) CrPC enjoins a further direction by the court to specify the order in which one particular sentence shall commence after the expiration of the other. Difficulties arise when the courts impose sentence of imprisonment for life and also sentences of imprisonment for fixed term. In such cases, if the court does not direct that the sentences shall run concurrently, then the sentences will run 25 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) consecutively by operation of Section 31(1) CrPC. There is no question of the convict first undergoing the sentence of imprisonment for life and thereafter undergoing the rest of the sentences of imprisonment for fixed term and any such direction would be unworkable. Since sentence of imprisonment for life means jail till the end of normal life of the convict, the sentence of imprisonment of fixed term has to necessarily run concurrently with life imprisonment.
In such case, it will be in order if the Sessions Judges exercise their discretion in issuing direction for concurrent running of sentences. Likewise if two life sentences are imposed on the convict, necessarily, the court has to direct those sentences to run concurrently.
58. Section 427 of Cr.P.C. reads as under :
427. Sentence on offender already sentenced for another offence.-- (1) When a person already undergoing a sentence of imprisonment is sentenced on a subsequent conviction to imprisonment or imprisonment for life, such imprisonment or imprisonment for life shall commence at the expiration of the imprisonment to which he has been previously sentenced, unless the Court directs that the subsequent sentence shall run concurrently with such previous sentence:
Provided that where a person who has been sentenced to imprisonment by an order under Section 122 in default of furnishing security is, whilst undergoing such sentence, sentenced to imprisonment for an offence committed prior to the making of such order, the latter sentence shall commence immediately.
(2) When a person already undergoing a sentence of imprisonment for life is sentenced on a subsequent conviction to imprisonment for a term or imprisonment for life, the subsequent sentence shall run concurrently with such previous sentence.
59. Thus, considering the totality of the facts and circumstances of the case, this Court is of the considered opinion, that the sentence of Life Imprisonment and 6 years R.I. awarded in this case, can be made concurrent with the Life Imprisonment and other sentences awarded in Cr.A. No. 237/2007. Accordingly, it is directed that the sentence 26 Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No. 240 of 2007) awarded in this case, shall run concurrently with sentence awarded in Cr.A. No. 237 of 2007.
60. However, it is made clear that in the light of judgment passed by Supreme Court in the case of Sharad Hiru Kolambe v. State of Maharashtra, reported in (2018) 18 SCC 718, the default sentence shall run consecutively.
61. With aforesaid Modification the judgment and sentence dated 27-12-2006 passed by Additional Sessions Judge, Guna in S.T. No. 246 of 2000 is hereby Affirmed.
62. The appellant is in jail. He shall undergo the remaining jail sentence.
63. Let a copy of this judgment be immediately provided to the appellant, free of cost.
64. The record of the Trial Court be sent back along with copy of this judgment for necessary information and compliance.
65. The appeal fails and is hereby dismissed on merits but is partially allowed on the question of sentence.
(G.S. Ahluwalia) (Deepak Kumar Agarwal)
Judge Judge
ARUN KUMAR MISHRA
2022.02.17 17:40:08 +05'30'