Madhya Pradesh High Court
Ashok And Another vs State Of M.P. on 27 June, 2018
Author: Ashok Kumar Joshi
Bench: Ashok Kumar Joshi
-( 1 )- CRA No. 689/2000
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
BEFORE: HON.SHRI JUSTICE SANJAY YADAV
AND
HON. SHRI JUSTICE ASHOK KUMAR JOSHI
Criminal Appeal No.689/2000
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1. Ashok S/o Mishrilal Sharma
2. Sita S/o Lalaram @ Navalkishore Sharma
.... Appellants
Vs.
State of Madhya Pradesh
Through - Police Station Esagarh, District Guna.
.... Respondent
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AND
Criminal Appeal No.773/2000
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1. Vipin Kumar Sharma S/o Harprasad Sharma
.... Appellant
Vs.
State of Madhya Pradesh
Through - Police Station Esagarh, District Guna.
.... Respondent
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Shri D.R.Sharma, learned counsel with Shri Madan
Mohan Tripathi, counsel for the appellants-Ashok and
Sita in Criminal Appeal No.689/2000.
Shri Gagan Sharma, learned counsel for appellant-Vipin
Kumar Sharma in Criminal Appeal No. 773/2000.
Shri B.K.Sharma, learned Public Prosecutor for the
State.
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JUDGMENT
(Delivered on 27/06/2018) -( 2 )- CRA No. 689/2000 Per Ashok Kumar Joshi,J.:
By this common judgment being passed in Criminal Appeal No.689/2000, another Criminal Appeal No. 773/2000 is also being decided as both of them have been filed against the judgment dated 29 th August, 2000, passed by First Additional Sessions Judge, Ashoknagar, District Guna (then) in Sessions Trial No. 56/2000, whereby each of the appellants has been convicted and sentenced under Section 302/34 (on two counts) of the IPC to undergo life imprisonment with a fine of Rs.2000/- with default stipulation for causing murder of two deceased persons, driver Suresh and cleaner Preetam; and under Section 394 of the IPC to undergo ten years RI with a fine of Rs.5000/- with default stipulation. It is also directed that all the jail sentences of each appellant to run concurrently.
2. Prosecution's case in brief is that on 24.8.1999 a jeep driver of liquor contractor, Manoj (PW-2) was going towards Esagarh from Dhakoni, then at about 11=30 am near village Kulwarchak he saw that on left side of the road dead bodies of two male persons were lying. He saw that head and face of each of the deceased were stained with blood and each deceased was wearing pant and shirt and the age of the deceased was appearing about 20 to 25 years. On Manoj's intimation, merg report (Ex.P/5) was recorded at Police Station Esagarh regarding death of two unknown persons. After receiving intimation SHO of Police Station Esagarh, Kailash Batham (PW-16) reached on the place where both dead bodies were lying and photographs of the dead bodies were taken and after issuing separate safina form, -( 3 )- CRA No. 689/2000 separate inquest memo was prepared relating to each unknown deceased and thereafter both the dead bodies were sent for post mortem. Map of the place where dead bodies were found was prepared vide Ex.P/44 on 24.8.1999 by Kailash Batham and vide seizure memo (Ex.P/45) blood-stained soil and separately plain soil and two chappals of different types were also seized.
3. Dr. S.S.Chhari (PW-4) on 25.8.1999 at Primary Health Centre, Esagarh contacted post-mortem of a male deceased, aged about 25 years, and recorded post- mortem report (Ex.P/8) and on the same day he also conducted autopsy of another unknown male, aged about 20-21 years and separately recorded post-mortem report (Ex.P/9). He also sealed viscera of each of the deceased separately for chemical analysis. S.P.Sharma, Senior Scientific Officer of FSL Unit Guna, (PW-15) on 25.8.1999 in the morning firstly inspected the dead bodies at Esagarh Hospital and caused to take photographs of dead bodies of both deceased persons by photographer of his unit and thereafter he also inspected the place near village Kulwarchak where dead bodies were found and prepared report (Ex. P/41) and outline map of above mentioned place (Ex.P/42) and sent to the Investigating Officer. He opined that both deceased males were murdered at another place but their dead bodies were brought firstly to Dhakoni-Esagarh road near village Kulwarchak and thereafter both dead bodies were kept in bushes.
4. According to prosecution story, in an another incident occurred in the night on 22.10.11999 in territorial jurisdiction of Police Station Esagarh in a -( 4 )- CRA No. 689/2000 police encounter, accused persons of that crime Vipin Sharma, Ashok Sharma and Hamir Singh Yadav were arrested, who were trying to cause loot of a truck and some firearms were also found in their possession, in relation to which Crime No. 275/1999 for the offences punishable under Sections 307, 399 and 402 of the IPC and Sections 25 and 27 of the Arms Act was registered. At the time, on arrest of Vipin Sharma in above mentioned another crime, from his possession a driving licence issued by RTO Jhansi in favour of driver Suresh Kumar Sahu S/o Ramprasad Sahu, aged about 24 years, R/o District Jhansi (UP) was also seized but that seized driving licence was bearing passport size photograph of accused Vipin Sharma.
5. After arrest in another crime on 22.10.1999 separate disclosure statement was given by each of Vipin Sharma and Ashok Sharma, wherein it was disclosed that about two months ago they with Sita had hired a Tata 407 Metador vehicle for carrying pumpkins to City Kanpur (U.P.) and thereafter when they were going towards Aligarh for selling the Metador, then that vehicle was checked by RTO. As they were not having papers relating to that vehicle, hence they ran away leaving that vehicle and intimation about a tyre-liver kept in that Metador's cabin was also given by them separately. On Vipin Kumar's disclosure, memorandum (Ex.P/39) and on Ashok's disclosure, memorandum (Ex.P/40) were prepared and thereafter both of them were formally arrested in relation to crime relating to unknown deceased persons. Thereafter, it was learnt that hired Tata 407 Metador was owned by Surendra Pal (PW-6), resident of Jhansi (UP). Details regarding driver -( 5 )- CRA No. 689/2000 and cleaner of that vehicle and their parents were obtained from Surendra Pal. The relating vehicle was kept by ARTO P.D.Malviya (PW-3) after its seizure at Police Station Lodha, District Aligarh (U.P.). The arrested accused persons Vipin and Ashok were also taken to Police Station Lodha, where Constable Munshi Singh Yadav (PW-13) and Ramkhiladi Gautam (PW-14) identified Vipin and Ashok as persons, who came to Lodha Police Station for keeping that vehicle there, after its seizure by ARTO, Aligarh.
6. After receiving intimation from police, relating vehicle owner Surendra Pal (PW-5), transporter Ashok Chaddha (PW-9), resident of Jhansi, Ghanshyam (PW-7), father of the cleaner Preetam and Ramprasad (PW-8) father of the driver Suresh Sahu came to Superintendent of Police Guna's office, where photographs of dead bodies of both the deceased persons and clothes of each deceased were seen by them, then one of the deceased was identified as truck driver Suresh Sahu and another deceased was identified as Preetam, cleaner of that vehicle. On 25.10.1999 at Police Station Lodha of Janpad Aligarh (UP) a Tata 407 vehicle bearing registration No. UP93-E-0462 was seized by Esagarh Police vide seizure memo (Ex.P/28). On same day, i.e., 25.10.1999 an iron sariya (tyre-liver) was also seized by Investigating Officer Kailash Batham (PW-16) vide seizure memo (Ex.P/31) in the premises of Police Station Lodha of Janpad Aligarh (UP).
7. During investigation facts revealed that on 23.8.1999 all the three appellants had contacted in town Shivpuri (M.P.) with Commission Agent Shahjad Khan -( 6 )- CRA No. 689/2000 (PW-17) at Sabji Mandi and negotiated for hiring a truck for carrying pumpkins to Kanpur Mandi from Esagarh area and thereafter Shahjad Khan (PW-17) contacted on telephone with transporter of Jhansi, Ashok Kumar Chaddha (PW-9) and Ashok Kumar Chaddha telephonically contacted with Surendra Pal (PW-6) and Surendra Pal (PW-6) agreed for sending his Tata 407 vehicle bearing registration No. UP93-E-4062 to Shivpuri for agreed rent Rs.2600/-. On same day, i.e., 23.8.1999 above mentioned vehicle driven by Suresh Kumar Sahu along with cleaner Preetam reached from Jhansi to Shivpuri in the night at about 8 o'clock, thereafter as advance Rs.500/- were given by accused to driver Suresh Sahu and with vehicle and above mentioned driver and cleaner, appellants proceeded from Shivpuri. For getting interim custody of the truck, an application was filed in the Court of Chief Judicial Magistrate Aligarh, on whose order (Ex.P/48) dated 26.10.1999 the above mentioned vehicle was given by Police Station Lodha (UP) to Police Esagarh (MP). Appellant Sita was arrested on 29.10.1999. During investigation a letter dated 10.1.2000 (Ex.P/57) was sent by Investigating Officer to Regional Transport Authority Jhansi (UP) for getting information regarding comparison of photograph of driver Suresh Sahu with seized driving licence of Suresh from appellant Vipin, which was bearing Vipin's photograph. In reply to this query letter written information on the back of Ex.P/57 was received regarding photograph of deceased driver Suresh Sahu and his driving licence from above mentioned RTO Office. The viscera was sent to Regional Forensic Science Laboratory, Gwalior and other materials were sent to FSL Sagar. After completing other -( 7 )- CRA No. 689/2000 formalities of the investigation, charge sheet was filed in the Court of JMFC Ashok Nagar, who committed the arisen sessions trial to the Sessions Judge Guna, who transferred the sessions trial to above mentioned trial Court.
8. Trial Judge framed charges under Sections 394 and 302/34 (on two counts) of the IPC against each accused. Before the trial Court, seventeen prosecution witnesses were examined. It was the defence of appellants that they were falsely implicated. Raju Soni (DW-1) was examined for appellant Ashok, on the point that when Ashok was arrested by the police then he was driving his tractor. After hearing the trial Court convicted and sentenced each appellant as aforesaid. Hence, both these appeals by different appellant/accused persons of the same case.
9. It has been vehemently contended by learned counsel for different appellants that Shahjad Khan (PW-
17) identified before the trial Court appelalnts as the persons, who negotiated with him for hiring a vehicle for taking pumpkins from Esagarh area to Kanpur Mandi, but during investigation no test identification parade was conducted in relation to any of the appellants, hence doc identification in Court was not believable. Similarly, it is argued that two police Constables posted at that time at Police Station Lodha of Janpad Aligarh (UP), Ramkhiladi Gautam (PW-14) and Munshi Singh Yadav (PW-13) have identified only two appellants, though they deposed that Esagarh Police had brought all the three appellants at Lodha, whereas according to prosecution's case only two appellants Vipin and Ashok were taken to -( 8 )- CRA No. 689/2000 Lodha on that day and on this point evidence of Constable Munshi Singh Yadav (PW-13) is even contradictory to his police statement. It was further argued that Dr. S.S.Chhari (PW-4), who conducted autopsy of two deceased unknown male persons, opined that both deceased were appearing to be Muslims as their male organ (penis) was appearing to be circumcised, hence identity of deceased driver and cleaner of relating vehicle is also doubtful. It was also contended that according to medical evidence relating to post-mortem, some incised wounds were found on dead body of each deceased but from the seized iron sariya (tyre-liver) causing of incised wound is not possible. Hence, it is argued that the medical evidence is contrary to the alleged recovered weapon of the murder. Hence, it is argued that the trial Court erred in convicting each appellant for charged offence. Therefore, it is prayed that both appeals be allowed and each appellant be acquitted from the above mentioned offence. In support of the contentions, learned counsel for the appellants of both the appeals have placed reliance on the judgments in the cases of Hallu and others vs. State of Madhya Pradesh [AIR 1974 SC 1936] ; Sharad Birdhichand Sarda vs. State of Maharashtra [AIR 1984 SC 1622]; Dhananjoy Chaterjee vs. State of West Bengal [(1994) 2 SCC 220]; and, State of Goa vs. Sanjay Thakran and another [(2007) 3 SCC 755].
10. Per Contra, learned appearing Public Prosecutor supporting the impugned conviction and sentence contended that according to the prosecution's case, no eye-witness was available and seized tyre-liver was seized only on the disclosure statement of appellants -( 9 )- CRA No. 689/2000 Vipin and Ashok and similarly dead bodies of deceased persons were found in Police Station Esagarh's area as unknown persons, whereas about two months later, appellants were arrested in another crime whereas the vehicle was seized by the ARTO Aligarh on 25.8.1999 and prosecution's case is totally based on circumstantial evidence and the trial Court has properly and legally analysed the evidence available on record in establishing the chain of link of seven circumstances enumerated in para 13 of its judgment. Hence, dismissal of both the appeals is prayed.
11. It would be significant to mention at the outset that according to prosecution's case, both the deceased were murdered in the midnight of 23rd and 24th August, 1999 and on 24.8.1999 dead bodies of both the deceased were found under the area of Police Station Esagarh (M.P.) as unknown persons, whereas the relating vehicle bearing registration No. UP93-E-0462 was seized on 25.8.1999 at Lodha of Janpad Aligarh (UP) by interception as persons travelling in the vehicle were having no papers relating to vehicle as is clear from Ex.P/6 proved by ARTO P.D.Malviya (PW-3) posted at Aligarh (UP). In Ex.P/6 name of the driver of the vehicle is recorded as Dilip S/o Harprasad Sharma and it is also mentioned in Ex.P/6 that driver was not having driving licence, registration book, permit, fitness certificate, insurance papers in relation to pollution. It would be significant to mention here that the name of father of appellant Vipin is also Harprasad Sharma though it appears from Annexure P/6 that on the date 25.8.1999 the driver has mentioned his name as Dilip, but he also mentioned his father's name as Harprasad Sharma. From driving -( 10 )- CRA No. 689/2000 licence of deceased driver Suresh Sahu, which was seized on 22.10.1999, whose photocopy is on record as Ex.P/58, it is proved by evidence available on record that it was bearing the passport size photograph of appellant Vipin Sharma. It appears that for a period of two months after the incident, the deceased persons remained unknown and investigation regarding murder of unknown persons got momentum only after arrest of appellants Vipin Sharma, Ashok Sharma and one Hamir Singh Yadav in another Crime No. 275/1999, registered at same Police Station Esagarh, whose FIR's copy is on record as Ex. P/53.
12. It is clear from the evidence of Dr. S.S. Chhari (PW-
4) and his post mortem report (Ex. P/8) that on 25.8.1999 at the time of starting post-mortem of an unknown male, aged about 25 years, he found swelling and contusions on face of the deceased and his tongue was pressed between teeth and clotted blood spots were present on nose, mouth, ear and face was having swelling and fecal matter had come out from anus and clothes were stained with mud and blood and there was an incised wound on chin of the lower jaw and contusion on left side of forehead with an abrasion and there was also swelling with contusion in back portion of the skull and neck of the deceased was dislocated from its proper place and was also having swelling and multiple contusions and signs of abrasion were present on both the shoulders and both the testicles of deceased were also having swelling and contusion. On dissection, blood clot was found beneath the left side of forehead with depressed fracture of relating bone and in his male private part his both testis were lacerated, lower jaw -( 11 )- CRA No. 689/2000 was broken and front side of bone of neck was also broken and dislocated. He opined that relating deceased has died due to sever injuries to vital organs and excessive bleeding and deceased has died due to asphyxia and shock and such death was appearing to be homicidal and occurred within 48 hours from starting of post-mortem.
13. It is also clear from the evidence of Dr. S. S. Chhari (PW-4) and his another post-mortem report (Ex.P/9) that clothes of another deceased were also stained with blood and mud and his eyes and face were having swelling and coloured blackish blue and blood clots were present on face, ear, nose and mouth. Three incised wounds were found on face of the second deceased and he was also having some injuries on left cheek caused by hard and blunt object and his private parts (male organs) were also having swelling and abrasions and contusions were also appearing on his chest and thigh. On dissection of dead body of another deceased, his skull on right side and ramus of right jaw were found broken and hematoma was present in head and his left testicle was ruptured and right testis (male organ) was found swollen and his right mandible of face was broken. He opined that the death of another deceased was also appearing to be homicidal.
14. It appears that Dr. S.S. Chhari (PW-4) deposed in cross-examination that it was appearing to him that both the deceased were Muslims, as due to swelling on male organ (penis) of each deceased, the outer skin coverage was not appearing on glance penis, hence they were appearing like Muslim persons having circumcised. It is -( 12 )- CRA No. 689/2000 only an opinion as male organs of both the deceased were having severe injuries and only due to above mentioned fact, the subsequent identification of deceased persons by their parents and employer could not be doubted. Hence, it was proved by the evidence available on record that both the recovered dead bodies of unknown persons were of driver Suresh Sahu and cleaner Preetam of above mentioned vehicle.
15. It has been vehemently argued on behalf of appellant Sita that his memorandum (Ex.P/50) was allegedly recorded on 29.10.1999, whereas relating Tata 407 vehicle and iron rod (tyre-liver) were allegedly recovered prior to it on the basis of alleged prior memorandums of appellants Ashok and Vipin, hence, it is argued on behalf of appellant Sita that as there is no eye-witness to the incident, the trial Court erred in convicting and sentencing the appellant Sita without any evidence.
16. Per Contra, it has been argued by the Public Prosecutor on behalf of the respondent/State that appellants Ashok and Vipin and another person Hamir Singh were arrested on 22.10.1999 in another crime registered at Police Station Esagarh vide arrest memo (Ex.P/52) and thereafter Ashok and Vipin were formally arrested in relation to crime in reference to case in hand and Vipin and Ashok's separate memorandums under Section 27 of Evidence Act were recorded by Investigating Officer Kailash Batham (PW-16) vide Ex. P/39 and P/40 respectively recorded on 22.10.1999 and in these separate memorandums, each of the appellants Vipin and Ashok separately disclosed the fact that about -( 13 )- CRA No. 689/2000 two months ago both of them with Sita Brahmin have negotiated at town Shivpuri with a Muslim Commission Agent for carrying pumpkins to Kanpur and that Muslim Commission Agent has fixed a Tata 407 Matador, which came from Jhansi and all three appellants with that Matador's driver and cleaner had gone to Dhakoni Road near Anandpur-Esagarh and on next day when all these three appellants were carrying that Matador towards Aligarh for selling it, then R.T.O. intercepted that Matador, hence all these three appellants after leaving that Matador there, fled away from that place. It is argued by the Public Prosecutor on placing reliance on the judgment in the case of Charandas Swami vs. State of Gujarat and others [2017 (3) M.P.L.J. (Cri.) (S.C.) 353] that under Section 27 of the Evidence Act, the fact discovered is not limited to the seizure of any article or thing and above mentioned facts disclosed in each separate memorandum of Ashok and Vipin were firstly discovered only on the basis of their disclosure excluding the incriminating part of each memorandum.
17. It is significant to remember here that relating Matador's owner was resident of District Jhansi of another State, dead bodies were recovered in Police Station Esagarh's area of District Guna, whereas the relating Muslim Commission Agent was resident of another District Shivpuri and the Matador was kept by the relating ARTO at Police Station Lodha on 25.8.1999 which is clear from the charge sheet (Ex.P/6) submitted by ARTO Aligarh P.D.Malviya (PW-3), who has proved the above mentioned fact. In Ex. P/6, vehicle owner's name Surendra Pal has been rightly mentioned, but the name of driver is mentioned as Dilip S/o Har Prasad Sharma. It -( 14 )- CRA No. 689/2000 is undisputed that appellant Vipin's full name is Vipin S/o Har Prasad Sharma and it was also proved from evidence that from appellant Vipin, who was originally arrested in another crime, driving licence of deceased driver Suresh Sahu was seized, which was having passport size photograph of appellant Vipin. It appears that at the time of interception by relating ARTO appellant Vipin disclosed his name wrongly as Dilip but he disclosed his father's name rightly as Har Prasad Sharma.
18. Appellants Ashok and Vipin were arrested on 22.10.1999 in another crime, whose FIR is exhibited as Ex. P/53 and proved by Kailash Batham (PW-16). The incident had occurred in the intervening night of 23 rd and 24th August, 1999. After incident both these appellants Ashok and Vipin were arrested about two months later in another crime. During this period of two months Investigating Officer Kailash Batham (PW-16) or any other person residing in District Guna could not imagine that on 25.8.1999 relating vehicle was kept at Police Station Lodha by ARTO posted at Aligarh (UP) and that vehicle was contracted on 23.8.1999 by three appellants through a Muslim Commission Agent after negotiating at Shivpuri town. All these facts were firstly discovered from the separate memorandums, i.e., disclosure statements of appellants Ashok and Vipin.
19. In the case of Pulukuri Kottaya and others vs. Emperor [A.I.R. 1947 Privy Council 67], it has been observed that "fact discovered" is not equivalent to object produced, in following words in para 10:-
"10. ....... It is fallacious to treat the "fact -( 15 )- CRA No. 689/2000 discovered" within the section as equivalent to the object produced; the fact discovered embraces the place from which the object is produced and the knowledge of the accused as to this, and the information given must relate distinctly to this fact. Information as to past user, or the past history, of the object produced is not related to its discovery in the setting in which it is discovered."
20. In the case of Charandas Swami (supra), it has been observed by the Apex Court in para 46 of its judgment as follows:-
"46. This Court has restated the legal position that the facts need not be self-probatory and the word "fact" as contemplated by section 27 is not limited to "actual physical material object". It further noted that the discovery of fact arises by reason of the fact that the information given by the accused exhibited the knowledge or the mental awareness of the informant as to its existence at a particular place. In paragraph 128, the Court noted the statement of law in Udai Bhan (supra) that, "A discovery of a fact includes the object found, the place from which it is produced and the knowledge of the accused as to its existence."
21. In Charandas Swami (supra) in relation to conduct of accused in reference to Section 8 of the Evidence Act, following excerption from the case of Vasanta Sampat Dupare vs. State of Maharashtra [(2015) 1 SCC 253] has been taken, which reads thus:-
"28. Additionally, another aspect can also be taken note of. The fact that the appellant had led the police officer to find out the spot where the crime was committed, and the tap where he washed the clothes eloquently speak of his conduct as the same is admissible in evidence to establish his conduct. In this context we may refer with profit to the authority in Prakash Chand v. State (Delhi Admn.) [(1979) 3 SCC 90] wherein the Court after referring to the decision in H.P. Admn. v.-( 16 )- CRA No. 689/2000
Om Prakash [(1972) 1 SCC 249] held thus:
(Prakash Chand case, SCC p. 95, para 8).
"8. ... There is a clear distinction between the conduct of a person against whom an offence is alleged, which is admissible under Section 8 of the Evidence Act, if such conduct is influenced by any fact in issue or relevant fact and the statement made to a police officer in the course of an investigation which is hit by Section 162 of the Criminal Procedure Code. What is excluded by Section 162 of the Criminal Procedure Code is the statement made to a police officer in the course of investigation and not the evidence relating to the conduct of an accused person (not amounting to a statement) when confronted or questioned by a police officer during the course of an investigation. For example, the evidence of the circumstance, simpliciter, that an accused person led a police officer and pointed out the place where stolen articles or weapons which might have been used in the commission of the offence were found hidden, would be admissible as conduct, under Section 8 of the Evidence Act, irrespective of whether any statement by the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 of the Evidence Act."
29. In A.N. Venkatesh v. State of Karnataka it has been ruled that: [(2005) 7 SCC 714, para
9) "9. By virtue of Section 8 of the Evidence Act, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, would be admissible as conduct under Section 8 irrespective of the fact whether the statement made by -( 17 )- CRA No. 689/2000 the accused contemporaneously with or antecedent to such conduct falls within the purview of Section 27 or not as held by this Court in Prakash Chand v. State (Delhi Admn.). Even if we hold that the disclosure statement made by the appellants-accused (Exts. P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and PWs 1, 2, 7 and PW 4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused.
Presence of A-1 and A-2 at a place where ransom demand was to be fulfilled and their action of fleeing on spotting the police party is a relevant circumstance and are admissible under Section 8 of the Evidence Act."
22. The panch witness of disclosure statements of Ashok and Vipin, Maniram (PW-12) has clearly deposed before the trial Court on 6.7.2000 that about 6-7 months before appellant Vipin was arrested in his presence with some other accused persons and his arrest memo (Ex. P/38) is signed by him and in his presence under interrogation by police Vipin has informed the police that he had taken a Matador on rent at Shivpuri and thereafter when he was taking that Matador to a city of the State of Uttar Pradesh, then in the way on interception by RTO, he fled away leaving the Matador at relating place. Maniram also proved his signatures on memorandum (Ex.P/39) relating to appellant Vipin, but he did not support the prosecution's case in relation to appellant Ashok's disclosure statement (Ex.P/40). Hence, he was partially declared hostile by the prosecution and thereafter though he admitted his signatures on his -( 18 )- CRA No. 689/2000 memorandum (Ex. P/40) but he denied the relating suggestion given by prosecution that appellant Ashok had also disclosed some facts in his presence. Another common panch witness of these memorandums was not produced by the prosecution before the trial Court, but in peculiar facts and circumstances of the case, it is clear that the events occurred at Shivpuri and Police Station Lodha of District Aligarh (UP) could be disclosed only by appellants Ashok and Vipin, who also disclosed their involvement in above mentioned disclosed facts with another appellant Sita. In the light of above mentioned citation, it is clear that firstly disclosed facts by appellants Ashok and Vipin separately on 22.10.1999 are proved to be firstly discovered only on disclosure of these appellants as it is clear that facts or events happened about two months ago in different places and States, could not be imagined by Investigating Officer or any panch witness of the disclosure statements.
23. It has been held in the case of In re Pullannagari Rami Reddi and others [AIR 1941 Madras 238] and, Athappa Goundan and others vs. Emperor [AIR 1937 Madras 618] that the confessional statement under Section 27 of the Evidence Act comes within Section 30 of the Evidence Act and may be taken into consideration against a co-accused. It is clear from Ex. P/39 and P/40, memorandum of Vipin and Ashok respectively that in each of the above mentioned disclosure relating appellant disclosed that he with other two appellants had taken the vehicle Tata 407 on rent from Shivpuri and later on it was being carried to Aligarh when it was intercepted by ARTO. Hence, the above mentioned argument advanced on behalf of the -( 19 )- CRA No. 689/2000 appellant Sita appears to be totally without any substance.
24. It is clear from the prosecution's case that only after above mentioned disclosure statements made by appellants Ashok and Vipin, the Commission Agent Shahjad Khan (PW-17), resident of District Shivpuri, transporter Ashok Kumar Chaddha (PW-9) resident of Jhansi and Surendra Pal (PW-6) owner of relating unfortunate vehicle, resident of Jhansi and relatives of the missing driver and cleaner of relating Matador could be traced out, and thereafter unknown deceased persons could be identified by their employer Surendra Pal (PW-6) and father of cleaner Preetam, namely Ghanshyam (PW-7) and Ramprasad (PW-8) father of the deceased driver Suresh Sahu. Ramprasad (PW-8) is a resident of District Jhansi (UP) and similarly Ghanshyam (PW-7) is a resident of another village of District Jhansi. The evidence of Ghanshyam and Ramprasad regarding identification of their deceased sons after seeing the photographs of their dead bodies could not be disbelieved.
25. Similarly, Shivpuri's Commission Agent Shahjad Khan has clearly identified all the three appellants at the time of recording of his evidence before the trial Court and has totally supported the prosecution's case that all the appellants negotiated with him for taking on rent a Matador for carrying pumpkins from Esagarh area to Kanpur and his evidence is totally corroborated by transporter Ashok Kumar Chaddha (PW-9), who was telephonically contacted by Shahjad Khan, and Surendra Pal (PW-6), who was telephonically contacted by Ashok Kumar Chaddha.
-( 20 )- CRA No. 689/200026. Shahjad Khan (PW-17) has also deposed that in his presence all the three appellants have departed from Shivpuri in relating night with the above mentioned driver and cleaner of the unfortunate Matador. Shahjad Khan (PW-17) is having no reason for falsely implicating all the three appellants, who are residents of different districts from Shivpuri.
27. Much emphasis has been given by the appellants' counsel on the fact that during investigation no test identification parade was conducted in relation to identification of appellants by Shahjad Khan (PW-17) as it is clear from the evidence of Shahjad Khan that he has seen all the three appellants only on a day i.e., 23.8.1999 at Shivpuri, but it is well established that identification made by prosecution witness at the time of recording of his evidence in the Court is the only substantive evidence given by relating witness and the test identification parade conducted during investigation is only having corroborative value. It is significant to mention here that Shahjad Khan is not complainant or victim and other facts regarding seizure of Matador by ARTO in District Aligarh (UP) were firstly disclosed only by appellants Ashok and Vipin. In such circumstances, the doc identification made by Shahjad Khan (PW-17) regarding the appellants could not be doubted.
28. It has been observed by the Apex Court in the case of Ravi @ Ravicharan vs. State Rep. by Inspector of Police [AIR 2007 SC 1729] as follows:-
"It is no doubt true that the substantive evidence of identification of an accused is the one made in the court. A judgment of -( 21 )- CRA No. 689/2000 conviction can be arrived at even if no test identification parade has been held."
29. It is observed by this Court in the case of Bharat Singh vs. State of MP [2017 (3) MPLJ (Cri.) 142] that in every case test identification parade is not necessary and in fact doc identification is substantive piece of evidence and if evidence of witness is found reliable then identification of accused in doc can be relied upon.
30. It was clear from his evidence that in the night of 23.8.1999 both the deceased driver Suresh Sahu and cleaner Preetam Chowdhary of relating Matador were last seen alive with three appellants by Shahjad Khan (PW-17) and it is clear from the evidence of complainant Manoj (PW-2) and Investigating Officer Kailash Batham (PW-16) and that of some other prosecution witnesses that on next day, i.e., 24.8.1999 at about 11=30 am the dead bodies of both the deceased persons were seen by complainant Manoj and thereafter by other prosecution witnesses near village Kulwarchak falling under area of Police Station Esagarh.
31. It is proved by the evidence of relating ARTO P.D.Malviya (PW-3) and charge sheet (Ex. P/6) prepared by him that on 25.8.1999 when he was checking vehicles at Aligarh-Mathura Road, papers were demanded from the driver of Tata 407 vehicle bearing registration No. UP93-E-0462 Tata 407 and as the driver was not having any paper including his driving licence, he seized vehicle and thereafter that vehicle was kept in the premises of Police Station Lodha of District Aligarh (UP). Though P.D.Malviya (PW-3) disclosed his inability to identify the -( 22 )- CRA No. 689/2000 appellants and he was partially declared hostile by the prosecution, but he has offered explanation in para 5 that daily about 8 to 10 vehicles' drivers papers got checked in his presence, hence it is not possible for him to remember the faces of all the drivers checked in his presence. His explanation appears to be natural and believable. His evidence is corroborated by police constable Man Singh Yadav (PW-13) and constable Ramkhiladi Gautam (PW-14), who were posted at Police Station Lodha of District Aligarh (UP).
32. Ramkhiladi (PW-14) deposed that on relating date when RTO brought Tata 407 vehicle into the premises of Police Station Lodha, then three persons were seated in that vehicle and two of them have entered into Police Station Lodha. Man Singh Yadav (PW-13) deposed that he recorded relating Rojnamcha entries at Police Station Lodha, then two persons who were seated in relating vehicle brought by ARTO Aligarh on 25.8.1999 in police station premises came before him and at the time of recording of his evidence he identified those two persons as appellants Ashok and Sita. Both these Constables deposed that about two months later on 25.10.1999 three accused persons were brought to Police Station Lodha by Esagarh Police of Madhya Pradesh, and Man Singh identified appellants Ashok and Sita at the time of recording of his evidence, whereas Ramkhiladi deposed that on 25.10.1999 with Esagarh police Vipin and Ashok had come before him but according to prosecution's case and the evidence of Investigating Officer Kailash Batham (PW-16) of Police Station Esagarh, on 25.10.1999 only two appellants Ashok and Vipin were taken to Police Station Lodha of District Aligarh by him. Hence, there appears some contradictions regarding identification of -( 23 )- CRA No. 689/2000 the relating appellants in evidence of above mentioned two Constables posted at Lodha, but due to such natural contradictions their evidence could not be doubted which is substantially corroborated by A.R.T.O. P.D. Malviya (PW-3), who was at the relevant time posted at Aligarh (UP).
33. Investigating Officer Kailash Batham (PW-16) deposed that when appellant Vipin was arrested firstly in above mentioned another crime, then driving licence bearing the name of driver Suresh Sahu was seized from him, but on that driving licence passport size photo of the appellant Vipin was affixed and these facts are also mentioned in relating FIR (Ex. P/53) of another crime. Kailash Batham deposed that due to this abnormality he sent a query letter (Ex.P/57) to R.T.O. Office Jhansi (UP), on whose back side signed reply of R.T.O. Office Jhansi was received and from above mentioned office of Jhansi, a photocopy of driving licence of Suresh Sahu was received, which is Ex.P/59, which is bearing passport size photo of Suresh Sahu, whereas the photocopy of driving licence seized from appellant Vipin is Ex.P/58, whereon passport size photograph of Vipin was affixed, instead of licence holder driver Suresh Sahu. Hence, it is established that after the murder of driver Suresh Sahu, appellant Vipin was using his driving licence after affixing his passport size photograph on driving licence of Suresh Sahu.
34. Investigating Officer Kailash Batham (PW-16) deposed that after preparation of arrest memos and memorandums of appellants Ashok and Vipin and after obtaining their police remand, a police party headed by -( 24 )- CRA No. 689/2000 S.I. Sanjay Chaturvedi was sent to Shivpuri as both these appellants had disclosed that they have taken vehicle on rent from Shivpuri. He also deposed that at Shivpuri Sanjay Chaturvedi got information that relating vehicle was belonging to Jhansi, hence he went to Jhansi and thereafter brought relatives of relating driver and cleaner (Ghanshyam PW-7 and Ramprasad PW-8) to Guna, who identified deceased driver Suresh and cleaner Preetam after seeing photographs of dead bodies and clothes found on dead bodies and on this point identification panchnama (Ex.P/46) was prepared by him.
35. Kailash Batham (PW-16) also deposed that he went to Aligarh on 25.10.1999 with appellants Vipin Sharma and Ashok Sharma and vehicle owner Surendra Pal (PW-
6) and thereafter reached to Police Station Lodha, where vehicle owner Surendra Pal (PW-6) identified his vehicle, hence he seized relating vehicle kept in Police Station Lodha premises vide seizure memo (Ex.P/28) and thereafter fresh memorandums were prepared in relation to both of these appellants, as the iron rod (tyre- liver) could not be recovered from the place firstly disclosed by both these appellants and on the basis of fresh memorandums of these appellants (Ex. P/29 and P/30) relating iron rod (tyre-liver) was seized on production by these appellants from the driver cabin of seized above mentioned vehicle, which was seized by him vide seizure memo (Ex.P/31) and at Police Station Lodha, he recorded police statement of Constable Man Singh Yadav (PW-13) and Ramkhiladi Gautam (PW-14), who stated that earlier same accused persons brought that vehicle to Lodha Police Station. Investigating -( 25 )- CRA No. 689/2000 Officer also deposed that as seized vehicle's custody was not handed over to him by Police Station Lodha's police because it was seized by A.R.T.O. Aligarh, hence after obtaining interim custody order dated 26.10.1999 (Ex.P/48) from the Court of CJM, Aligarh (U.P.), the relating vehicle was received by Esagarh Police.
36. Much emphasis has been given by the appellants' counsel on the point that the wounds, which were found on both of the dead bodies of the deceased persons, could not be caused by above mentioned seized iron rod (tyre-liver) but it is to be remembered that according to prosecution's case there is no eye-witness to the incident of murder and only it was disclosed by appellants Ashok and Vipin in their separate disclosure statements that relating iron rod, i.e., tyre-liver was used by them in killing. It appears from the FSL report (Ex. P/63) that though blood was found on seized iron rod (tyre-liver), but the source of blood and blood-group could not be ascertained. Hence, the evidence relating to recovery of relating iron rod (tyre-liver) does not appear material or much helpful to the prosecution.
37. We are of the considered opinion that the trial Court has minutely, legally and properly analyzed and appreciated the evidence available on record and following circumstances were clearly established by prosecution evidence available on record :-
(i) On 23.8.1999 all the three appellants negotiated at Shivpuri with Sabji-Mandi Dalal Shahjad Khan (PW-17) to arrange for a loading vehicle for carrying pumpkins from Esagarh area to Kanpur -( 26 )- CRA No. 689/2000 and thereafter Shahjad Khan telephonically contacted transporter Ashok Chaddha (PW-9), who telephonically contacted vehicle owner Surendra Pal (PW-6) of truck Tata 407 bearing registration No. UP93-E-0462, which was engaged and in the evening above mentioned vehicle came to Shivpuri with its driver Suresh Sahu and cleaner Preetam Chowdhary.
(ii) On 23.8.1999 from Shivpuri all the three appellants departed by the above mentioned vehicle with above mentioned driver and cleaner for loading pumpkins from Esagarh area as seen by Shahjad Khan (PW-17), i.e. above mentioned driver and cleaner were last seen alive with all the three appellants by Shahjad Khan (PW-17) in night of 23.8.1999.
(iii) On next day in the morning of 24.8.1999 dead bodies of these driver and cleaner were found lying near Esagarh and Dhakoni Road.
(iv) On next day, i.e. 25.8.1999 above mentioned truck bearing registration No. UP93-E-0462 was seized by A.R.T.O. Aligarh (UP) P.D.Malviya (PW-3) during vehicle checking from the appellants and on his instructions appellants took relating vehicle to Police Station Lodha, District Aligarh for keeping it there after its seizure by A.R.T.O.
(v) Till the period of two months, dead -( 27 )- CRA No. 689/2000 bodies recovered on 24.8.1999 at above mentioned place remained unidentified and only on 22.10.1999 for the first time after arrest of two appellants Vipin Sharma and Ashok Sharma in another crime, a driving licence bearing the licence holder/driver's name as Suresh Sahu, was seized from appellant Vipin Sharma but seized driving licence was bearing photograph of appellant Vipin Sharma.
(vi) Only on the basis of disclosure statements given by appellants Vipin Sharma and Ashok Sharma separately on 22.10.1999, the above mentioned vehicle could be seized at Police Station Lodha (District Aligarh) and only thereafter Shahjad Khan (PW-17), vehicle owner Surendra Pal (PW-6) and relatives of deceased driver and cleaner could be traced out, who later on identified the deceased persons on 23.10.1999.
38. On behalf of appellant Ashok, Raju Soni (DW-1) resident of Esagarh was examined, who deposed that on the date of festival Dushahra appellant Ashok had gone after driving his tractor for ploughing his agricultural land, then he was taken by Esagarh Police from his field and Raju Soni deposed that he and appellant Ashok both are residents of Esagarh and appellant Ashok is his neighbourer, but he also deposed in cross-examination that appellant Ashok was having a cloth shop and he also deposed that on that day, appellant Ashok had gone with -( 28 )- CRA No. 689/2000 his tractor for the first time and he has never visited appellant Ashok's cloth shop. It is significant to mention here that it was not suggested to Investigating Officer Kailash Batham (PW-16) in his cross-examination by defence counsel that actually Ashok was arrested from Raju Soni's (DW-1) agricultural land. Similarly, it would be significant to mention here that appellant Ashok in his examination conducted by the trial Court under Section 313 of the CrPC, stated that police captured him from agricultural land, but he did not mention there that he was captured from Raju Soni's (DW-1) agricultural land. In his above mentioned examination appellant Ashok disclosed his occupation as cloth shop. Hence, in above mentioned facts and circumstances it is clear that Raju Soni's (DW-1) evidence appears totally afterthought and unbelievable and a person having cloth shop would go to plough agricultural land of his neighbourer for the first time of his arrest date by the police. It appears only to be high fly of imagination. Such defence evidence could not make the otherwise reliable prosecution evidence doubtful.
39. We are of the considered view that the appellants' conviction recorded by the trial Court is not suffering from any perversity and both the appeals filed by different appellants are meritless.
40. Consequently, both the appeals filed by different appellants are dismissed and the conviction and sentence of each appellant as recorded by the trial Court is affirmed.
41. The order sheet dated 15.2.2018 recorded by this -( 29 )- CRA No. 689/2000 Court in Criminal Appeal No.773/2000 goes to show that appellant Vipin Kumar Sharma is detained in District Jail, Shivpuri in connection with some other case. He be informed about the result of this appeal through relating Jail Superintendent. Both appellants Ashok and Sita of Criminal Appeal No.689/2000 are on bail after suspending their sentences. They are directed to immediately surrender before the trial Court to serve out their remaining jail sentence. The trial Court's order regarding disposal of seized property is affirmed.
With a copy of this judgment record of the trial Court be sent back immediately.
(Sanjay Yadav) (Ashok Kumar Joshi)
(Yog) Judge Judge
27-06-2018 27-6-2018
Digitally signed by YOGESH VERMA
Date: 2018.06.28 10:26:41 +05'30'