Allahabad High Court
Shera And 2 Others vs State Of U.P. on 7 December, 2018
Bench: Pritinker Diwaker, Kaushal Jayendra Thaker
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Judgement reserved on 26.10.2018 Judgement Delivered on 07.12.2018 Court No. - 3 CRIMINAL APPEAL No. - 1799 of 2013 Shera and 2 others ....Appellant Versus State Of U.P. ....Respondent For Appellant : Ghan Shyam Das,Kamal Krishna,SU Khan For Respondent : Govt. Advocate ___________________________________________________ Hon'ble Pritinker Diwaker,J.
Hon'ble Dr. Kaushal Jayendra Thaker,J.
Per: Dr. Kaushal Jayendra Thaker,J.
1. By way of this appeal, the accused-appellants have felt aggrieved by conviction rendered in Sessions Trial No.10 of 2010 arising out of Case Crime No.43 of 2009, passed by Additional Sessions Judge, Court No.1, Allahabad, vide judgment and order dated 3.4.2013, convicting the appellants under Sections 396, 412 of Indian Penal Code, 1860 (hereinafter referred to as 'I.P.C.'), Police Station-George Town, District-Allahabad.
2. The facts as culled out from the record are that the investigation was moved into motion when PW1 was conveyed that the residence of Dr. Deepa Jain w/o Pramod Kumar Agrawal, in Charan Mani Road, in the jurisdiction of Police Station George Town, on 28.1.2009 at about 3:00 p.m. was locked. PW1 received a phone-call from Upendra Sharma, who is a friend of the deceased, who conveyed that the house of Dr. Deepa Jain was bolted and nobody was answering the telephone calls. PW1 along with his driver went to the residence of deceased. PW1 was the real brother of the deceased Dr. Deepa Jain. When they reached the place of incidence, it was closed and the news-paper was lying outside the door and the room was closed. The driver was asked to go up on the first floor. The driver broke open the door. When the driver went up and came down and opened the door, the said witness along with Upendra Sharma and PW1 came in the house. The door was opened and all the three deceased persons were seen in pool of blood. The articles in the said room were lying halter skelter and valuables were missing. In this regard, report was lodged against unknown people. The police authorities came to the place of incidence and drew the map. The inquest report of the dead bodies was made and they were sent for post-mortem. Certain articles, namely, chappals, a half smoked bidi, Raj Shree Gutka, that is how the panchnama of the place and articles were prepared. This incidence occurred on 28.1.2009. After about four days, a message came to the Police Personnel from their informer that some people were seen at the banks of river Yamuna in doubtful condition with certain ornaments, certain foreign currency and other valuable items. On receiving the message, the police authorities cordoned the accused, out of several persons, three persons were cordoned and recovered valuables as also foreign currency, by preparing Panchnamas. The main gang-leader was never nabbed.
3. Case under Sections 394, 302, 396 and 411 of Indian Penal Code was registered and charge-sheet thereafter was filed under Section 396 read with Section 412 of I.P.C against the accused and other unknown assailants. The PW11 has categorically conveyed in his oral testimony that during the investigation, names of other accused were also revealed. They tried to search the said accused and they arrested Jodan, Sunil and Rajesh and they formed teams to nab the absconding accused. They had on 21.4.2009 arrested accused Shera, Chakori and Bablu under Section 396 read with Section 142 of IPC. He has not scribed in writing any statement of any of the witnesses. No question was asked to him whether and how the names of other accused were disclosed. Similar is the version of PW5 and PW12. PW5 very categorically in his examination-in-chief has submitted that people of ghumantu community, who had come to the Magh Mela had started going but three people were present and they were about to leave the place and at that time they were nabbed and, therefore, from this evidence the case was altered from Sections 392 and 302 to Sections 396 and 412 of IPC, while submitting the charge sheet before the Magisterial court against the name of accused.
4. On the basis of F.I.R., case was registered and investigation was carried out. Inquest report was prepared, formalities for post-mortem examination was carried out and autopsy was conducted. After investigation charge sheet against the accused was submitted. The case was committed to the Court of Sessions by the Magistrate as it was a Sessions triable case.
5. The prosecution so as to bring home the charges have examined the following witnesses who are fourteen in number:
1Anand Kumar Agrawal 17.04.2010 PW1 2 Vinod Kumar 07/12/10 PW2 3 Neetu 19.8.2010 PW3 4 Mala 26.8.2010 PW4 5 Dhananjay Mishra 14.2.2011 PW5 6 Narayan Singh Parihar 06/04/11 PW6 7 Dr. Aniruddh Singh 17.08.2011 PW7 8 Dr. Raj Kumar 17.08.2011 PW8 9 D.P. Shukla 13.12.2011 PW9 10 SI Arvind Jaiswal 21.03.2012 PW10 Recalled 19.05.2012 PW10 11 Amar Singh 31.08.2012 PW11 12 HC Ashok Kumar Shukla 20.09.2012 PW12 13 Vivek Kumar Upadhyay 17.11.2012 PW13 14 Prem Narayan Bharti 12/07/12 PW14
6. In support of the ocular version of the witnesses, following documents were produced and contents were proved by leading evidence:
1F.I.R.
28.01.2009 Ex.Ka-30
2.
Written Report 28.01.2009 Ex.Ka.1
3. Recovery memo of Janjir, Coins, Currency Note, etc. 02.02.2009 Ex.Ka.2
4. Recovery memo of parts of Bidi, Panni, Sindur 29.01.2009 Ex.Ka.22 5 Recovery memo of Ala Katl 28.01.2009 Ex.Ka.23 6 Recovery memo of Blood Stained Sleaper, Marble 28.01.2009 Ex.Ka.24 7 Post Mortem Report of Pramod Kumar 29.01.2009 Ex.Ka.5 8 Post Mortem Report of Ankit Kumar 29.01.2009 Ex.Ka.6 9 Post Mortem Report of Smt. Deepa Agrawal 29.01.2009 Ex.Ka.7 10 Chemical Report of Mudamal sent for FSL 30.07.2010 Ex.Ka.32 11 Chemical Report of Mudamal sent for FSL 21.07.2010 Ex.Ka.34 12 Inquest Panchayatnama of deceased 28.01.2009 Ex.Ka.02 13 Inquest Panchayatnama of deceased 28.01.2009 Ex.Ka.03 14 Inquest Panchayatnama of deceased 28.01.2009 Ex.Ka.04 15 Charge-sheet 21.04.2009 Ex.Ka.29
7. On the witnesses being examined and the prosecution having concluded its evidence. The accused were put questions under Section 313 Cr.P.C. but except pleading that they did not know anything and/or they have been falsely implicated, no material was placed but two witnesses were examined as defence witness by the accused.
8. We have heard learned counsels for the parties and perused the record and paper book.
9. Learned counsel for the appellant has taken us through the entire evidence which we have very minutely scrutinized. He has submitted his written submissions and has submitted that the recovery of ornaments from the accused persons is doubtful as the recovery of ornaments was not supported by the Panch rather (prosecution) witnesses. It is submitted that the independent witnesses of recovery, namely, PW3 and PW4 did not support the prosecution case and have turned hostile and this is, therefore, a missing link in the circumstance and, therefore, the accused could not have been sentenced as it was not proved that they have committed any dacoity.
10. It is submitted by learned counsel for the accused-appellants that as far as arrest of the accused-appellants is concerned, the evidence of DW1, mother of Shera and Chakori gave an application to the Superintendent of Police, Chitrakoot, on 30.1.2009 that Shera and Chakori were arrested on 29.1.2009 by Police Officers of Manikpur, District Chitrakoot and this fact has been overlooked by learned Sessions Judge. It is further submitted that there were some hairs, which were taken from the body of the deceased and samples of hair of accused persons were also taken, it is further submitted that the trial court has not considered the evidence of the defence witnesses rather it has misread the evidence and has come to a conclusion that no defence witness was ever examined. It is next submitted that PW10-Arvind Kumar Jaiswal has stated that from body of deceased Ankit Agarwal, some hairs were found and samples of accused persons were extracted for DNA test but no DNA test report was submitted. This is a missing link as post-mortem also was silent about any hair on body of the deceased, Ankit Agarwal.
11. Learned counsel for the appellants has relied on the judgment of the Apex Court in the case of Musheer khan vs. State of UP reported in 2010(2) SCC 748 and has also relied on the grounds raised in the memo of appeal and has submitted that the accused are not guilty and circumstantial chain is incomplete and that the accused are required to be given benefit of doubt and be acquitted.
12. It is further submitted that no family member of deceased was examined testifying the fact that the valuables belonged to the deceased persons and, therefore, also conviction cannot be based on the recovery made and proved as has been done by the trial court.
13. It has been submitted by learned counsel for the appellants-accused that there was no motive and in a case resting on circumstantial evidence, motive plays an important role, and for which, he has relied on the decision of the Apex Court in the case of Mahamadkhan Nathekhan vs. State of Gujarat, reported in (2014)14 SCC 589, whereby, the acquittal of the accused was restored.
14. Learned advocate appearing for the appellants-accused, has vehemently submitted that the evidence on record goes to show that the offence under section 396 of IPC is not made out, and therefore, the impugned judgment and order of conviction and sentence may be quashed and set aside and the appeal be allowed. Learned advocate for the appellant has submitted that the trial Court has erred in believing the prosecution case and evidence on record. He has further submitted that the judgment and order of conviction is based on improper appreciation of the evidence of prosecution and based on improbabilities and, therefore the same deserves to be quashed and set aside. It is further submitted that there is absence of motive as it is not proved that the deceased had ever demanded any money from the accused. There are several missing links in the evidence led by the prosecution before the trial Court and only on incriminating statement of the accused, punishment cannot be awarded. He has further contended that the chain of incident is broken from day one as no one has seen the accused with the deceased and in the testimony of the witness, it is accepted in the cross-examination that none has seen the accused, and therefore, also the accused could not have gone to the house from where certain articles were found. It is further contended that only on the evidence of witnesses who have not fully supported the prosecution case, the appellant has been convicted. This testimony could not have been relied on by the learned trial Judge which is against the principles of appreciation of evidence under sections 25 and 27 of the Evidence Act. It is submitted that when nobody had seen the deceased with the accused, the accused could not have been convicted. It is submitted that the panch-witnesses of recovery have not supported the case of the prosecution, save and except, the interested witnesses, and therefore, the impugned judgment and order of conviction and sentence deserves to be quashed and set aside.
15. Per contra, learned AGA has taken this Court through the entire evidence on record again and submitted that the impugned judgment and order passed by the learned trial Judge is just and proper. Learned AGA further submitted that in view of the evidence on record, it cannot be said that the learned trial Judge has committed any error in convicting and sentencing the accused to undergo rigorous imprisonment for life. Learned AGA further submitted that the prosecution has proved the case beyond reasonable doubt and there are no missing links in chain of circumstances. There were blood stains found from wintchater (dress) of accused and further more, valuables were found from the place which was not accessible to all, which was shown by the accused. According to learned AGA, there is no missing link and, therefore, it is submitted that this Court may concur with the view taken by the learned trial Judge, and the present appeal be dismissed.
16. While going through the entire record, three things emerge for our consideration:
(I) Whether the death was a homicidal death resulting into murder;
(II) If it was homicidal death, was it coupled with the intention to commit dacoity; and (III) If both these are proved, whether conviction under Section 396 of IPC of all the accused is justified or not.
17. In a case based on circumstantial evidence, motive assumes great significance as its existence is anenlightening factor in a process of presumptive reasoning [See Kundula Bala Subrahmanyam and Anr. v. State of AndrhaPradesh [Jt 1993 (2) SC 559 : 1993(2) SCC 684]].
18. In this case, as per the factual matrix, which would go to show that the case of the prosecution rests on circumstantial evidence, the circumstance from which an inference of guilt is sought to be drawn, has to be cogently and firmly established. They must be of definite tendency which would point to the guilt of the accused and accused alone, the circumstances which would be taken cumulatively must and must form a chain unbroken and no escapism from the conclusion that the crime was committed by the accused and accused alone. This principle has been annunciated way back by the Apex Court in the case of Padala Veera Reddy v. State of M.P. reported in JT 1989 (4) SC 223.
19. This takes us to the issue whether the offence would be murder, which is an ingredient to be proved before proving that offence committed is an offence under Section 396 IPC.
20. It would be relevant to refer Section 299 as also Section 300 of the Indian Penal Code, which read as under:
"S.299. Culpable homicide: Whoever causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
"S.300. Murder--Except in the cases hereinafter excepted, culpable homicide is murder, if the act by which the death is caused is done with the intention of causing death, --
Secondly --If it is done with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused, or--
Thirdly --If it is done with the intention of causing bodily injury to any person and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death, or--
Fourthly--If the person committing the act knows that it is so imminently dangerous that it must, in all probability, cause death or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death or such injury as aforesaid.
Exception 1.--When culpable homicide is not murder.--Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos:--
First--That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person.
Secondly --That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant.
Thirdly --That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation.--Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact.
person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.Exception 2.--Culpable homicide is not murder if the offender, in the exercise in good faith of the right of private defence of person or property, exceeds the power given to him by law and causes the death of the person against whom he is exercising such right of defence without premeditation, and without any intention of doing more harm than is necessary for the purpose of such defence.
Exception 3.--Culpable homicide is not murder if the offender, being a public servant or aiding a public servant acting for the advancement of public justice, exceeds the powers given to him by law, and causes death by doing an act which he, in good faith, believes to be lawful and necessary for the due discharge of his duty as such public servant and without ill-will towards the person whose death is caused.
Exception 4.--Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.
Explanation.--It is immaterial in such cases which party offers the provocation or commits the first assault.
Exception 5.--Culpable homicide is not murder when the person whose death is caused, being above the age of eighteen years, suffers death or takes the risk of death with his own consent.
21. The academic distinction between ''murder' and ''culpable homicide not amounting to murder' has always vexed the Courts. The confusion is caused if Courts, losing sight of the true scope and meaning of the terms used by the legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Section 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences and coming to the decision as to whether it was homcidal death.
Section 299 Section 300 A person commits culpable homicide if the act by which the death is caused is done-
Subject to certain exceptions culpable homicide is murder is the act by which the death is caused is done.
INTENTION
(a) without the intention of causing death; or (1) with the intention of causing death; or
(b) with the intention of causing such bodily injury as is likely to cause death; or (2) with the intention of causing such bodily injury as the offender knows to be likely to cause the death of the person to whom the harm is caused;
KNOWLEDGE KNOWLEDGE
(c) with the knowledge that the act is likely to cause death.
(4) with the knowledge that the act is so immediately dangerous that it must in all probability cause death or such bodily injury as is likely to cause death, and without any excuse for incurring the risk of causing death or such injury as is mentioned above.
22. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was premeditated, accused had intention to cause death of deceased, the injuries were sufficient in the ordinary course of nature to have caused death, accused had intention to do away with deceased, hence the instant case would be falling under Section 300 of IPC. While considering Section 299 as reproduced herein above offence committed in this case would fall under Section 300 on the basis of the observations of the Apex Court in Veeran and others Vs. State of M.P. Decided, (2011) 5 SCR 300 which has been also kept in mind.
23. The cumulative effect of the evidence would show that it was a premeditated murder as injuries caused were on the vital parts of the bodies of all the three deceased. The medical evidence also supports the case of the prosecution. The recovery and discovery are relevant facts and the same have been properly appreciated by the court below. The deceased was done to death by the accused-appellants and certain instruments of crime were recovered at the behest of the appellants from a place which would be within their special knowledge and thus the doctrine of the confirmation by subsequent event is attracted.
24. Even incriminating circumstances were put to the appellants but except making bald denial no proper explanation was given by the accused-appellants which is also a circumstance which has to be held against them.
25. We are convinced that the judgment cited by the counsel will not aid the appellants, reason being, the death was culpable homicide with intention and medical evidence which is produced goes to show that injuries were sufficient to cause death. It is proved that it was murder as defined in Section 300 of IPC and not simplicitor. Considering the evidence of prosecution witnesses and also considering the medical evidence including postmortem report, there is no doubt left in our mind about the guilt of the present appellants.
26. Having held that it was a murder it will have to be seen whether if, there was group of five people of which the three accused were parties and they were the persons who committed the offence as punishable under Section 396 read with Section 412 of the Act.
27. The deposition of witnesses can be segregated into four categories: (I) the complainant and independent witnesses; (ii) the doctor, who performed post-mortem of the deceased; (iii) the punch witnesses, who testified in part and thereafter turned hostile and (iv) police officials, who reached the place whether the accused were nabbed and those who conducted the investigation.
28. Provisions of Section 396 IPC reads as follows:
"396. Dacoity with murder.--If any one of five or more persons, who are conjointly committing dacoity, commits murder in so committing dacoity, every one of those persons shall be punished with death, or 1[imprisonment for life], or rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
29. This takes us to the question as to whether the accused-appellants have committed offence under Section 412 of the IPC. Section 412 reads as follows:
"412. Dishonestly receiving property stolen in the commission of a dacoity--Whoever dishonestly receives or retains any stolen property, the possession whereof he knows or has reason to believe to have been transferred by the commission of dacoity, or dishonestly receives from a person, whom he knows or has reason to believe to belong or to have belonged to a gang of dacoits, property which he knows or has reason to believe to have been stolen, shall be punished with 1[imprisonment for life], or with rigorous imprisonment for a term which may extend to ten years, and shall also be liable to fine."
30. The Apex Court in State of Gujarat vs. Aniruddh, AIR 1997 SC 2780, has held that police officials, who were at the place where the accused were nabbed and have witnessed gathering of evidences and if they are found to be trustworthy their evidences will and has to be evaluated as if they were witnesses of the crime. The ocular version of the police officers has not been impinged in cross-examination. The reappraisal of the entire evidence will go to show that this was a cold-blooded murder of three people in their house. The ornaments were recognized by PW1 to be belonging to deceased. PW3 and PW 4 before turning hostile accepted that they were working at the place of the deceased, their signatures have been identified by them on the panchnamas o f recovery.
31. It would be relevant now for us to go through the cumulative effect of the evidence led before the trial court, which we have reappraised ourselves i.e. prosecution witness No.1 & 2 have testified and have unequivocally stated that they went in the house and that the ornaments were stolen. The deceased were found in pool of blood. The deceased Pramod Agarwal was a person, who used to collect stamps, old coins and old currency notes of different countries and they have identified that the ornaments recovered belonged to the deceased and, therefore, their evidence remains unimpeached. The evidence of the doctors prove that the deceased died a homicidal death and death was due to coma as a result of anti-mortem injuries.
32. The evidence of the police witnesses will have to be examined on the touch-stone of the judgment passed in the case of State of Gujarat vs. Aniruddh Singh (supra) and the accused-appellants belonged to a gang of dacoits, who were known for using power. They used to come to Allahabad and other places. They were also known as a gang of persons like "ghumantu". Their leader, who was named by co-accused, was not nabbed. The police authorities, who have being examined as PW5, PW6, PW9, PW10-PW14 have testified. It can be said that the police authorities have not left any effort to nab such people and they have done their duty very diligently. The leader of the said gang has been shown as a absconder and, therefore, primary fact that they were five in number or more but only three of the accused could be nabbed and charge-sheeted will not take out the case from the definition of Section 396 of the Act. It is proved that even when the police authorities tried to corden the gang members, some of them ran away and three of them are at large still chargesheet was laid against the appellants by substituting the Sections 394, 302 to 396 and 412 of IP Code.
33. PW5 has in his cross-examination also withstood the fact that three people were known as Jodan, Sunil and Rajesh, had accompanied these three peoples. This fact was revealed by the co-accused and, therefore, even if we do not want to consider it to be the contention, which is prima facie proved that there were more than five people, who had come to the place, the place from where the accused-appellants were nabbed was an isolated place. The evidence of PW6 is also corroborating what PW5 has stated. According to the FIR, which has been lodged and the accused have accepted that they have committed the loot along with other co-accused but the other accused have till date of filing of charge-sheet not nabbed.
34. It is true that no independent witness was available at the place of the incidence, the accused were at a place where there were no ingress or angress of people at night and place was very isolated.
35. The evidence, which has been led will go to show that decision in Raju Manjhi vs. State of Bihar reported in 2018 AIJLEC 62550 will apply and though confessional statement in police custody cannot be proved against the accused, however, in this case, the statement reveals leading to recovery of incriminating material and discovery of fact concerning the alleged offence and that has been properly proved against the accused-appellants. The statement goes to show that the accused all three proved by their disclosure statement that the incident was master-minded by head of the assailants and the crime was executed as per the plan. The accused have been proved to be the perpetrators of crime as held by the judgment of Apex Court as held in the case of Vaikuntam Chandrappa and others vs. State of Andhra Pradesh, AIR 1960 SC1340, Soyebbhai Yusufbhai Bharania and others vs. State of Gujarat, AIR 2017 SC 1606 and Kanta Prasad vs. Delhi Administration, AIR 1958 SC 350 and we hold that the said judgment applies in full force and further reference to a decision of Apex Court in Shah Jahan vs. State of Rep. By Insp. of Police, AIR 2018 SC 0-1070 can be perused in coming to the conclusion, which we are going to arrived. We are even fortified in our view by judment in Charan Das Swami vs. State of Gujarat reported in AIR 2017 SC 1761 and pursuant to the disclosures made the investigation was able to carry the investigation forward by ocular evidence. The accused and the ornaments recovered from panchnama is corroborated, the Court below on analysing the relevant facts has rightly found that the unescapable conclusion is that the deceased were hit by the instruments, which were found at the place of the incidence and the perpetrator of the said crime were the accused-appellants alone and none other had committed the crime.
36. We have once again perused the principle enunciated by the Apex Court and reiterated again and again in the case of circumstantial evidence, the conclusion of guilt is already drawn as it is fully established that the accused-appellants belonged to the gang of dacaoits and they were involved in the said activities.
37. The facts are established, which were consistent with the hypothesis of the guilt of accused and that the circumstances complete the chain and point at the fingers towards these accused-appellants and the persons, who had accompanied them but have fled away. The chain of evidence does not show that they were in any way not connected or were innocent and, therefore, we conclude that even their explanations under Section 313 Cr.P.C. does not leave any ground of doubt that they were persons who were not associated with this crime. The bloodstained Winchester was also recovered from one of the accused-appellants. Hence, there is cogent evidence and no different view than that taken by the court below requires to be taken by this Court. Further a reference to Section 8 and 27 of the Evidence Act would fortify our view as it has been held that a simplicitor circumstances, namely, "an accused led a police officer and pointed out the place where weapon was found hidden, would be admissible as conduct under Section 8, irrespective of whether any statement made by him contemporaneously with or antecedent to such conduct falls within purview of Section 27 of IPC1860 Section 302 (para 23)" Pankaj vs. State of Rajasthan, AIR 2016 SC 4150.
38. In the final analysis, the evidence of the witness who were present and who have testified will be more important if the evidence is qualitative in nature. We have to see the quality of evidence and not the quantity. In this case, it is an admitted position of fact that on the basis of the circumstances and subsequent facts, independent source of information, the chain is completed to prove that accused with absconding persons were responsible for murder and loot, which is dacoity as defined in Section 396 of IPC.
39. The submission of counsel for the appellant that panch witnesses of ornaments have not supported the recoveries and hence, it cannt be acted on to convict the accused. In this case, before we go to the aspect that PWs 3 and 4 have not supported the prosecution case, as far as recoveries are concerned, there is one aspect, which will have to be looked into and that is the extra judicial confession of the appellants. It can certainly be linked with other aspects and, therefore, the testimony of the police authorities and PW6 before whom the confession was made at the time of recoveries will also have to be considered. This one link in the chain of circumstances held by the Apex Court in the case of SCLE DIGEST 2016 (1304) 592. Section 24 and 27 of the Evidence Act will also go to show that this is one link in the circumstantial evidence. AIR 2016 SC 4266 will also not permit us to take a different view. The evidence of hostile witnesses even if the same is discarded, the chain cannot be said to be incomplete. They have testified before the Court that they have recognized their signatures, which proves that they were present at the time of recovery or made though they have not supported the recovery. The recoveries have been proved by other witnesses, namely, PW1, PW8, PW9 and PW 10. Just because, no family members was examined or near relative was examined, PW1, who was the brother of the deceased in his testimony has supported that the valuables which were found were of his sister and nephew and that his brother-in-law was in habit of collecting foreign currencies and rare stamps. In that view of the matter the recovery can be said to be voluntarily done. This is the second link, which is unbroken.
40. Just because the witnesses turned hostile, it cannot be a ground for holding that there is a missing link.
41. The witnesses, namely, P.W.1 and P.W.2 gave consistent version of incident and, therefore, their credibility was established beyond doubt. The medical evidence and the evidence of the police authorities, who had arrested the accused also go to show that the chain of circumstances as led herein above was forming a full chain and no gap is left in the chain of evidence and the only hypothesis is that the accused were the only persons, who were guilty of the offence and it was proved that they were not innocent.
42. It is proved that the accused have committed the offence with which they are charged no fault can be found with the judgment of the trial court in holding the accused-appellants quitly under Section 412 of IPC as they have dishonestly received property pursuant to their commission of dacoity and they have retained the same, we are fortified in our view by the decision of the Apex Court passed in the case of Amar Singh vs. State of Madhya Pradesh, AIR 1982 SC 129.
43. We are supported in our view by the decision of Apex Court in the case of Rajiv Singh vs. State of Bihar, 2016 (16) SCC 369; Nizam vs. State of Rajasthan 2016 (1) SCC 550. The circumstances, which proved that the accused had an intention of committing death just because there is lack of DNA testing of their hair will not permit us to hold that they were not guilty. It cannot be said that there was no motive. The motive is well-established. Recovery of articles and ornaments are proved. Circumstancial evidence proves the guilt of the accused. We are in complete agreement with the findings of facts as held by the trial court. The only judgment cited by the learned counsel for the appellants will not apply to the facts of this case as the conviction is not based on the finding of hair or on the basis of DNA test.
44. The accused-appellants are connected with the incident, they and they only have committed the dacoity as defined in Section 396 IPC. We are even supported in our view by the latest decisions of the Apex Court passed in the case of Soyeb Bhai Yushuf Bhai vs. State of Gujarat AIR 2017 SC 1606, upholding the judgment of Gujarat High Court holding that articles ceased at the behest of accused-appellants voluntarily can be fatal to the defence of accused-appellants.
45. The defintion of the word "dacoity" is defined in Sections 391, 395 and 396 IPC and, therefore, while considering the provisions of law, it is proved that they were the accused and they alone who were responsible for the commission of offence. The accused were given the copies of the recoveries also. The evidence of P.W.6 and P.W.5 corroborated these facts and they have been elaborately discussed by the police authorities, who have withstood the cross-examination also. It goes without saying that it was a pre-planned cold blooded dacoity coupled with a view to do away, the deceased away, the deceased doctor, her husband and the minor son. The recoveries are also proved by the police authorities and, therefore, it is proved beyond reasonable doubt that link is complete, the authors of the dacoity are the accused and accused alone. They were never arrested from Chitrakoot. The evidence of defence witnesses are rightly not believed by the court below. PW5, PW6 and PW9 have corroborated the recovery as they were the police authorities but were present at the place of the recovery and, therefore, even as per Section 26 of the Evidence Act, the said recoveries having been proved beyond reasonable doubt based on it.
46. We are again fortified in our view by the fact that the incident is of night. Anand Kumar Agrawal, who was the brother of the deceased has also identified the valuables being belonging to his brother-in-law and sister and, therefore, the submission of learned counsel for the accused that no family member has been examined. PW1 is near relative of the deceased, who has supported the recovery. All the 14 witnesses except PW3 and PW4, all have supported the circumstances, which appear against the accused and they corroborate each other. The evidence of PW5 goes to show that the Panchnama was as per the words of these witnesses, who for whatever reasons have not supported the prosecution witness. Both these witnesses before turning hostile stated that they used to know the deceased as they were working there and before turning hostile, they did not tell the truth. Just because they have not supported the case, it cannot be said that there is non-missing link. The witnesses, who have been examined by the defence also does not prove conclusively their innocence.
47. The defence has not been able to controvert the evidence of these witnesses. Over and above all the other witnesses, as stated above, have supported the respective recovery and discovery documents. Thus, the guilt of the accused stands proved by the oral evidence of P.W.-1 and P.W.-2, who are witnesses and who have testified and recognized the ornaments to be belonging to deceased, as well as by the documentary evidences produced before the trial court, from the evidence of doctors, who had performed P.M. on the body of the deceased and had noticed external injuries and it becomes clear that this is a case of homicidal death. We are, therefore, of the opinion that the learned Judge rightly held accused guilty for the act of causing death of deceased.
48. We are even fortified in our view by additional circumstance namely that the accused person voluntarily produced ornaments from a place which was a secluded place and it cannot be said that it was planted by the investigating authority. The aforesaid plea of the appellant cannot be accepted in view of the recent decision in Raja @ Rajinder Vs. State of Haryana reported in JT 2015 (4) SC 57 and the case before the Apex Court was similar.
49. In this case, the discovery appears to be credible. It has been accepted by the court below and there is no reason why we should discard the same. As the results were conclusive, the accused, in his statement under sec. 313 of CrPC did not give any explanation as to how the blood was found. This discovery positively further prosecution case in the facts of this case. We are supported in our view by the judgment of the Apex Court in the case of John Pandian v. State reported in JT 2010 (13) SC 284.
50. The finding of facts recorded by the learned trial Judge will not permit us to take a different view then that taken by the learned trial Judge. He has discussed the decisions cited before him by the accused and has threadbare discussed the same and held that the circumstantial chain is proved. In para-45 till end, he has discussed how the chain is complete, namely the motive has been proved.
51. We are fortified in our view as a similar view regarding discovery/recovery at the instance of the accused has been considered by the High Court of Gujarat in Criminal Appeal No. 37 of 2010 in the case of Nayan @ Yogesh Sevantibhai Soni vs. State of Gujarat decided on 10.9.2015 by Hon'ble Mr. Justice M.R. Shah (as he then was) and Hon'ble Mr. Justice K.J. Thaker. where in it has been held as under:
"4.5 At this stage, it is required to be noted that dead body has been discovered at the instance of the accused person. At this stage, decision of the Hon,ble Supreme Court in the case of Raja @ Rajinder vs State of Haryana reported in JT 2015 (4) SC 57 is required to be considered. The case before the Hon'ble Supreme Court was on circumstantial evidence and there was a recovery of knife, blood stained clothes and the ashes of the burnt blanket. The accused pleaded that disclosure statement made before the police custody and case were planted by the Investigating Agency. Not accepting the aforesaid plea of the accused, relying upon the decision of the Hon'ble Supreme Court in the case of Deoman Upadhyaya (supra) and Damu (supra), the Hon'ble Supreme Court has held that if an accused give information which relates to discovery of facts in consequence of information received, only that much of the information is admissible. In para 12 to 15, the Hon'ble Supreme Court has observed and held as under:
"12.Another circumstance that has been proven is about the recovery of knife, bloodstained clothes and the ashes of the burnt blanket. The seizure witnesses Sukha, PW7 and Nanak, PW9 have proven the seizure. It is submitted by the learned counsel for the appellant that police had recorded the confessional statement of the accused-appellant at the police custody and thereafter, as alleged, had recovered certain things which really do not render any assistance to the prosecution, for the confession recorded before the police officer is inadmissible. That apart, the accused had advanced the plea that the articles and the weapon were planted by the investigating agency. To appreciate the said submission in proper perspective, we may profitably reproduce a passage from State of U.P. v.Deoman Upadhyaya[5]:
"The expression, ''accused of any offence' in Section 27, as in Section 25, is also descriptive of the person concerned i.e. against a person who is accused of an offence, Section 27 renders provable certain statements made by him while he was in the custody of a police officer. Section 27 is founded on the principle that even though the evidence relating to confessional or other statements made by a person, whilst he is in the custody of a police officer, is tainted and therefore inadmissible, if the truth of the information given by him is assured by the discovery of a fact, it may be presumed to be untainted and is therefore declared provable insofar as it distinctly relates to the fact thereby discovered. Even though Section 27 is in the form of a proviso to Section 26, the two sections do not necessarily deal with the evidence of the same character. The ban imposed by Section 26 is against the proof of confessional statements. Section 27 is concerned with the proof of information whether it amounts to a confession or not, which leads to discovery of facts. By Section 27, even if a fact is deposed to as discovered in consequence of information received, only that much of the information is admissible as distinctly relates to the fact discovered."
13. In State of Maharashtra v. Damu, while dealing with the with the fundamental facet of Section 27 of the Evidence Act, the Court observed that the basic idea embedded in the said provision is the doctrine of confession by subsequent events, which is founded on the principle that if any fact is discovered in a search made on the strength of any information obtained from a prisoner, such a discovery is a guarantee that the information supplied by the prisoner is true. It further stated that the information might be confessional or non inculpatory in nature, but if it results in discovery of a fact it becomes a reliable information and, therefore, the legislature permitted such information to be used as evidence by restricting the admissible portion to the minimum.
14. Thus, if an accused person gives a statement that relates to the discovery of a fact in consequence of information received from him is admissible. The rest part of the statement has to be treated as inadmissible. In view of the same, the recovery made at the instance of the accused-appellant has been rightly accepted by the trial Court as well as by the High Court, and we perceive no flaw in it.
15. Another circumstance which has been taken note of by the High Court is that the bloodstained clothes and the weapon, the knife, were sent to the Forensic Science Laboratory. The report obtained from the Laboratory clearly shows that blood stains were found on the clothes and the knife.True it is, there has been no matching of the blood group. However, that would not make a difference in the facts of the present case. The accused has not offered any explanation how the human blood was found on the clothes and the knife. In this regard, a passage from John Pandian v.State (supra) is worth reproducing:
"The discovery appears to be credible. It has been accepted by both the courts below and we find no reason to discard it. This is apart [pic]from the fact that this weapon was sent to the forensic science laboratory (FSL) and it has been found stained with human blood. Though the blood group could not be ascertained, as the results were inconclusive, the accused had to give some explanation as to how the human blood came on this weapon. He gave none. This discovery would very positively further the prosecution case."
15.1 In view of the aforesaid, there is no substantial reason not to accept the recovery of the weapon used in the crime. It is also apt to note here that Dr. N.K. Mittal, PW1, has clearly opined that the injuries on the person of the deceased could be caused by the knife and the said opinion has gone unrebutted."
In the aforesaid decision, the Hon'ble Supreme Court has held that if chain of circumstance is so completed that it unerringly pointing towards guilt of the accused, even in a case of circumstantial evidence, the accused can be held guilty."
52. The observations of the Apex Court in the case of Soyebbhai Yusuf (supra) will aid to our finding on facts:
"From the oral evidence of the witnesses, the presence of accused no. 1 Soyebbhai Yusufbhai Boraniya, though resides outside the village, is established. The knife was also recovered and the panchnama is also proved. Recently, our view is fortified by the decision of the Hon'ble Apex Court in the case of Rajendrasingh vs. State of Uttaranchal, reported in (2013)4 SCC 713. The discovery panchnama was drawn as per the provisions of sec. 27 of the Evidence Act. In this case, it would be necessary for us to rely on the old decision of the Privy Council in the case of Pulukuru Kottaya & Ors. vs. Emperor, reported in AIR (34) 1947 Privy Council 67, as far as section 27 of the Evidence Act is concerned. In this case, the appellants have done the act. Their overt act as culminated into commission of the criminal offence which was in furtherance of their common intention, namely to do away with the deceased, and therefore, having delved into each and every aspects, we do not think appropriate to take a different view than that taken by the learned trial Judge. The learned trial Judge has minutely scrutinized the evidence, and therefore, it will not be appropriate or proper even after re-evaluating the evidence to take a different view then that taken by the learned trial Judge after appreciating the entire evidence on record. The decision of the Privy Council and the decision of the Apex Court would not permit us to hold that the appellants cannot get the benefit of doubt even on the submissions of learned senior counsel for the appellants, and we concur with the learned trial Judge. This takes us to the role played by accused no. 2,3 and 4. The presence of accused no. 2 and 3 was found at the place of offence. The prosecution has successfully proved that there were five and more persons present at the place of offence who had assaulted the deceased. The deceased was assaulted with motive and the motive is proved. The role of accused no. 2 and 3 is also proved by the prosecution beyond reasonable doubt. So far as accused no. 4 is concerned, there is no cogent evidence that he was the same person who was present in the mob, is proved. His presence is doubtful as he belonged to Madhya Pradesh and he has sent a fax message and from his statement under section 313 of CrPC is also very clear, and therefore, we think that he is the person with a mistaken identity who has been convicted, and therefore, he requires to be given the benefit of doubt just because of the mistaken identity."
53. The Apex Court in the case of Arvindkumar Anuplal Poddar v. State of Maharashtra, reported in 2012 Cri LJ 4007 (SC), has observed as under:
"The recovery from the place of occurrence, the frequent quarrels between the deceased and the accused as stated by PWs 1 and 2, the theory of the deceased having run away from the matrimonial home not properly explained by the appellant apart from the fact that no steps were taken by him to trace his wife, the weapon used, namely, the knife containing blood stains, that the nature of injuries found on the body of the deceased, that as per the version of PW-5, the post-mortem doctor, the death was homicidal and that the injuries could have been caused with the weapon marked in the case, that he appellant wanted to flee from the town itself."
54. In the case of Paulmeli and another vs. Sate of Tamil Nadu thro' Inspector of Police, reported in (2014) 13 SCC 90, in paragraphs no. 20 to 22, the Apex Court has observed as under:
"20. Paulmeli (PW2) has suported the case of the prosecution so far as the present appellants are concerned. He was declared hostile when he did not name the other accused, who stood acquitted by the courts below and there could be no difficulty to accept this deposition to that extent."
55. This Court in Ramesh Harijan v. State of U.P. While dealing with the issue held: (SCC pp 786-87, para 23) "23. It is a settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examine him.
'6....The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof.'
56. In State of U.P. v. Ramesh Prasad Misra, this Court held that evidence of a hostile witness would not be totally rejected if spoken in favour of the prosecution or the accused but required to be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defence can be relied upon. A similar view has been reiterated by this Court in Sarvesh Narain Shukla v. Daroga Singh, Subbu Singh v. State, C. Muniappan v. State of T.N. And Himanshu v. State (NCT of Delhi). Thus, the law can be summarised to the effect that the evidence of a hostile witness cannot be discarded as a whole, and the relevant parts thereof which are admissible in law, can be used by the prosecution or the defence.
57. The facts proved fortifies our view that the judgment of the trial court does not require any interference as it has been proved that there were five and more persons involved in the said commission of offence out of them it is proved by cogent evidence that three of them, who were convicted, also participated in the conspiracy and there was no mistaken identity. The motive to loot and commit dacoity is proved. The accused were habitual gangsters. The circumstantial chain is complete as the windcheater, which has been recovered from one of the accused, which is proved by cogent evidence and the FSL Reports supports our cause. We are not relying on the hairs collected but we rely on the other incriminating circumstances against the accused. Thus, in the final analysis, we hold that the circumstantial chain clearly shows the involvement of the accused, as the recovery of the ornaments was belonging to the deceased, which also goes against the accused.
58. On overall scrutiny of the facts and circumstances of the present case coupled with the opinion of the Medical Officer and considering the principle laid down by the Apex Court in the Case of Tukaram and Ors Vs. State of Maharashtra, reported in (2011) 4 SCC 250 and in the case of B.N. Kavatakar and Another Vs. State of Karnataka, reported in 1994 SUPP (1) SCC 304, we are of the considered opinion that deaths were murder.
59. Considering all facts and circumstances of the case, it is evident that prosecution has been able to bring home the guilt of accused-appellant by trustworthy and unimpeachable evidence. Learned trial judge has marshaled the facts and evidence adroitly. Sufficient evidence has been led to establish the guilt of the appellants/accused and we do not think that any other view then that taken by the learned Trial Judge.
60. The case is a case of circumstantial evidence coupled with the oral testimonies of the eye-witnesses, thus, having discussed the oral as well as the documentary evidence, which has come on record of the case, we are of the opinion that the prosecution has succeeded in establishing its case beyond reasonable doubt against accused. Under the circumstances, we are of the opinion that the learned trial Judge was justified in recording the conviction of accused Under Section 396 read with 412 of I.P.C.
61. Hence we confirm the conviction of all the three accused-appellants and hope that the investigating authorities are able to nab the other accused. The FIR was against unknown persons but they were 5 in number is very clear and their purpose was to commit dacoity with murder.
62. In view of the aforementioned discussion, we are of the view that this appeal has to fail and is, accordingly, dismissed. The impugned judgment passed by the trial court is affirmed.
63. The appellants are already in jail and, therefore, no further order is required.
64. Record and proceedings be sent back to Sessions Court.
Order Date :- 07.12.2018 LN Tripathi