Madhya Pradesh High Court
Santosh Kori vs The State Of M.P. on 19 April, 2018
Author: G.S. Ahluwalia
Bench: G.S. Ahluwalia
1 CRA No.27/2005
HIGH COURT OF MADHYA PRADESH
BENCH GWALIOR
SINGLE BENCH:
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
Criminal Appeal No.27/2005
.........Appellant: Santosh Kori
Versus
.......Respondent: State of M.P.
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Shri Pramod Sharma, Counsel for the appellant.
Shri Rukuvendra S. Ghuraiya, Public Prosecutor for the
respondent/State.
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Date of hearing : 12/04/2018
Date of Judgment : 19/04/2018
Whether approved for reporting :
JUDGMENT
(19/04/2018) This criminal appeal under Section 374 (2) of CrPC has been filed against the judgment and sentence dated 2/11/2004 passed by Sessions Judge, Datia in ST No. 52/2004 by which the appellant has been convicted under Section 307 of IPC and under Section 25 (1-B) (a) read with Section 27 of the Arms Act and sentenced to suffer rigorous imprisonment of 4 years and rigorous imprisonment of 1 year respectively and the sentences were directed to run separately.
2. The necessary facts for the disposal of the present appeal in short are that on 9/2/2004 at about 15:40, injured Ramchandra Sahu lodged a FIR against the appellant alleging that the complainant has a cycle repairing shop and at about 3:30 pm he was sitting in the shop. At that time, the appellant fired a gunshot on the complainant with an intention to kill him, which landed on his back. While appellant Santosh was trying to reload the country-made pistol, the complainant had scuffle 2 CRA No.27/2005 with him and tried to snatch .315 bore pistol from the appellant. At that time, Siya Saran and Rajiv, who are the Constables posted in Police Station Civil Lines, District Datia also came there. The appellant was caught on the spot. Rajiv snatched the country-made pistol from the hand of appellant Santosh and he has been brought to the police station. It is further submitted that the incident has been witnessed by Deepak, Siya Saran Yadav, Sanjay Sahu, Babu Khan and Meharban Singh. It was further alleged that since the complainant was getting a shop constructed by the side of his cycle repairing shop and initially he had a talk with the appellant for the said purpose, but since the appellant was demanding more money, therefore, instead of giving the contract to the appellant, the complainant had given the contract to another person, as a result of which, the appellant had a grudge against him. On this complaint, the police registered the offence against the appellant under Section 307 of IPC and Sections 25 and 27 of Arms Act. Complainant Ramchandra Sahu was sent for medical examination. The country-made pistol was seized. The sanction for prosecution under Sections 25, 27 of Arms Act was obtained and, after completing the investigation, the police filed the charge-sheet for offence under Section 307 of IPC and Sections 25 and 27 of Arms Act. The trial Court, by order dated 9/7/2004, framed charge under Section 307 of IPC and Section 25 (1-B) (a) read with Section 27 of Arms Act.
3. The appellant abjured his guilt and pleaded not guilty.
4. The prosecution, in order to prove its case, examined Nathu Ram (PW-1), Rajiv Mohan (PW-2), Dr. M.S. Pansari (PW-
3), Ramchandra Sahu (PW-4), Babu Khan (PW-5), Siya Saran (PW-6), Ashok Kumar Saxena (PW-7) and Rajesh Sharma (PW-
8).
5. The appellant did not examine any witness in his defence.
3 CRA No.27/20056. The trial Court, by judgment dated 2/11/2004 passed in ST No. 52/2004, convicted the appellant for offence under Section 307 of IPC and Section 25 (1-B) (a) read with Section 27 of Arms Act and sentenced him to undergo the rigorous imprisonment of 4 years and rigorous imprisonment of 1 year respectively. No fine amount was imposed. However, the sentences were directed to run separately.
7. Challenging the judgment and sentence passed by the Court below, it is submitted by the counsel for the appellant that although complainant Ramchandra Sahu (PW-4) had sustained a gunshot injury on his back, but there is nothing on record to indicate that anybody had seen the appellant firing the gunshot. The case is more or less based on the circumstantial evidence and the prosecution has failed to prove the circumstances beyond reasonable doubt and the chain of circumstance is not complete.
8. Per contra, it is submitted by the counsel for the State that it is true that complainant Ramchandra Sahu (PW-4) has stated that he could not see as to who had fired at him, but the prosecution has established beyond reasonable doubt that immediately after the gunshot was sustained by the complainant, there was a scuffle between the complainant and the appellant. Appellant Santosh was caught hold by the police personnel on the spot and the country-made pistol was seized from his possession. As per the report of the ballistic expert, the live cartridges as well as the fired cartridge could have been fired from the pistol seized from the possession of the appellant. It is submitted that the appellant has not explained as to how he was found in possession of the country-made pistol and why he was caught on the spot by the police personnel.
9. Heard the learned counsel for the parties.
10. Dr. M.S. Pansari (PW-3) had medically examined 4 CRA No.27/2005 complainant Ramchandra Sahu (PW-4). This witness had found an entry wound on the back of the victim in between 7 th and 8th ribs near the spinal cord and the entry wound was 1½ x 1½ cm (diameter) x 2 cm deep. The tattooing and blackening around the wound was present and the direction of the gunshot was from backward to forward. There was bleeding from the wound. However, there was no exit wound. X-ray was advised and the clothes of the victim were sealed and were handed over to the concerning Constable. On 9/2/2004 itself, the x-ray of the injured was conducted in front of this witness itself and he had found a metallic radio opaque shadow in between 7 th and 8th ribs of the victim. The x-ray plate is Exs. P-6 and P-7 and the x-ray plate is Ex. P-8 whereas the MLC report is Ex. P/-5. In cross-examination, it was stated by this witness that the gunshot was fired from a close range of 4 to 6 feets. This witness has denied the suggestion that the gunshot was fired from a distance of 22 to 25 feets. Thus, it is clear that injured Ramchandra Sahu had sustained gunshot injury and a metallic radio opaque shadow was found in the x-ray report, which clearly shows that the bullet was inside the body of the injured.
11. Now the next question for determination is that as to who had caused this injury to injured Ramchandra Sahu (PW-4).
12. Ramchandra Sahu (PW-4) has stated that it was around 3:30 pm he was sitting in front of his shop on a motorcycle. At that time, appellant Santosh and 4 to 6 persons were fighting with each other and, during that time, somebody fired as a result of which he sustained a gunshot injury on his back. Immediately, at that time, the police reached on the spot. He was shifted to Datia Hospital and he lodged the report at Datia Hospital itself. The FIR is Ex. P-9. From Datia Hospital, he was sent to Gwalior Hospital. However, this witness turned hostile with regard to the allegation as to who had caused the gunshot injury to him as he further stated that he could not see that 5 CRA No.27/2005 who had caused the injury to him. This witness was declared hostile and was cross-examined. He denied that the appellant had fired at him causing injury on his back. He further denied the suggestion that when the appellant was trying to reload the pistol, then he caught hold of him and had a scuffle with him and during this period, the police personnel of police station Civil Lines came on the spot and the appellant was caught hold by the police personnel and he further denied that the Constable Rajiv snatched the country-made pistol from the hand of the appellant. However, he admitted that he and the appellant were brought to the police station by the police personnel. He further admitted that the incident was seen by Deepak, Siya Saran Yadav, Sanjay Sahu, Babu Khan and Meharban Singh. He further admitted that he was intending to construct another shop by the side of his existing shop and for that purpose, he had a talk with the appellant, but since the appellant was demanding more money, therefore, he granted the contract to Babu Khan. However, he denied that the appellant was having any grudge because of this issue. He further denied of making some part of the statement in his case diary statement. He further denied that as he had entered into a compromise with the appellant, therefore, he is not stating the truth before the Court.
13. Rajiv Mohan (PW-2) and Siya Saran (PW-6) are the two police personnel who were sitting outside the police station Civil Lines Datia. These witnesses have stated that they heard the noise of gunshot and saw that the public had assembled in front of the shop of Ramchandra Sahu (PW-4) and, therefore, these witnesses ran towards the shop and found that the appellant and injured Ramchandra Sahu were scuffling with each other. Appellant Santosh is the same person who is present in the Court. Appellant Santosh was having a .315 bore country-made pistol in his hand and Rajiv Mohan (PW-2) 6 CRA No.27/2005 snatched the country-made pistol from the hand of the appellant and the Constable Siya Saran caught hold the appellant. These witnesses have stated that injured Ramchandra had sustained a gunshot injury on his back. The injured as well as the accused were brought by these witnesses to the police station. The injured and the appellant were sent for medical examination to Datia hospital. Rajesh Sharma, Town Inspector had seized a country-made pistol vide Seizure Memo Ex.P-2. Rajiv Mohan (PW-2) had brought a sealed packet from the District Hospital Datia which was containing the shirt and baniyan of the injured and it was seized by Head Constable Ramswaroop vide seizure memo Ex.P-3. The clothes of the appellant Santosh were seized vide seizure memo Ex. P-4. Siya Saran (P/W-6) had further stated that two live cartridges were also seized from the possession of the appellant Santosh vide Seizure Memo Ex. P-11. Both these witnesses were cross- examined in detail and they have stated that the shop of the injured Ramchandra Sahu is situated in front of the police station Civil Lines, District Datia at a distance of around 25 feets. They admitted that the appellant is a mason by profession. Rajiv Mohan (PW-2) has further stated that there was some dispute between the appellant and the complainant Ramchandra Sahu on the question of giving contract. However, both these witnesses have admitted that they have not seen the appellant firing the gunshot.
14. Babu Khan (PW-5) had turned hostile and did not support the prosecution case at all.
15. Ashok Kumar Saxena (PW-7) has proved the sanction for prosecution of the appellant under Sections 25 and 27 of the Arms Act. The sanction granted by the District Magistrate is Ex.P-12.
16. Nathuram Sharma (PW-1) is the armorer posted in the police line Datia on the post of Head Constable. He has 7 CRA No.27/2005 submitted a report Ex.P-1 according to which, the country- made pistol seized from the possession of the appellant was found in working condition and two live cartridges which were sent along with the pistol could have been fired from the country-made pistol and the fired cartridge was also of .315 bore. The fired cartridge had the impression of firing. This witness was cross-examined, but nothing could be elicited from his evidence which may make his evidence doubtful.
17. Rajesh Sharma (PW-8) is the Investigating Officer. He has stated that the injured Ramchandra Sahu (PW-4) came to the police station in an injured condition and lodged the FIR which was written by this witness as per his instructions. The FIR is Ex.P-9. The injured was sent to the District Hospital Datia vide application Ex. P-5A. Fired shell of cartridge was seized by Seizure Memo Ex. P-2 and on the same day, this witness had seized two live cartridges from the possession of the appellant vide seizure memo Ex. P-11. Blood stained clothes of the appellant were seized vide seizure memo Ex. P-4 and the statement of the witnesses were recorded. This witness was cross-examined. He denied that the complainant did not lodge the FIR. He further admitted that Santosh Kori had remained admitted in District Hospital Datial.
18. Thus, if the entire evidence which has come on record is appreciated, then it is clear that there is no evidence on record to the effect that the appellant was seen by any witness having fired the gunshot causing injury to the injured Ramchhandra Sahu (PW-4). In absence of a direct evidence of firing the gunshot, the case of the prosecution rests on the following circumstances:-
(i) The injured Ramchandra Sahu (PW-4) was sitting outside a shop.
(ii) He was intending to construct another shop by the side of his existing shop and for that purpose, initially 8 CRA No.27/2005 he had a talk with the appellant, but since he was demanding more money, therefore, the contract was given to another person.
(iii) The appellant and the injured Ramchandra Sahu were found scuffling with each other and appellant Ramchandra Sahu had sustained a gunshot injury on his back.
(iv) Rajiv (PW-2) and Siya Saran (PW-6), who are the Constables posted in the Police Station Civil Lines Datia, were sitting outside the police station when they heard the noise of gunshot and they immediately went to the shop of injured Ramchandra Sahu (PW-4) and found that the appellant and the injured were scuffling with each other.
(v) Rajiv Mohan and Siya Saran found that the appellant Santosh was having .315 bore country-made pistol in his hand.
(vi) The appellant and the injured Ramchandra Sahu were immediately brought to the police station where the FIR was lodged and the injured was sent to District Hospital Datia.
(vii) In the MLC report, Dr. M.S. Pansari (PW-3) has found an entry wound on the back of the injured Ramchandra Sahu (PW-4).
(viii) In the x-ray report Ex. P-8, a metallic radio opaque shadow was seen between 7th and 8th ribs of injured Ramchandra Sahu and the MLC report as well as the x-ray plates of injured Ramchandra Sahu are Ex.P-5, P-6 and P-7.
(ix) The armorer Nathuram Sharma (PW-1) had found the seized pistol as well as the live cartridge in working condition. The live cartridges could have been fired from the pistol and the shell of the cartridge was 9 CRA No.27/2005 having firing mark on it.
(x) The appellant had a motive to cause injuries to the injured Ramchandra Sahu.
19. The Supreme Court in the case of Munish Mubar v. State of Haryana reported in (2012) 10 SCC 464 has held as under:-
"28. Undoubtedly, in a case of circumstantial evidence, all the circumstances must be fully established and all the facts so established, must be consistent with the hypothesis regarding the guilt of the accused. The circumstances so established should exclude every other possible hypothesis except the one sought to be proved. The circumstances must be conclusive in nature. The circumstantial evidence is a close companion of factual matrix, creating a fine network through which there can be no escape for the accused, primarily because the said facts, when taken as a whole, do not permit us to arrive at any other inference but one indicating the guilt of the accused."
20. The Supreme Court in the case of Sharad Birdhichand Sarda v. State of Maharashtra reported in (1984) 4 SCC 116 has held as under:-
"152. Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant v. State of Madhya Pradesh, AIR 1952 SC 343. This case has been uniformly followed and applied by this Court in a large number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh, (1969) 3 SCC 198 and Ramgopal v. State of Maharashtra, (1972) 4 SCC 625. It may be useful to extract what Mahajan, J. has laid down in Hanumant case (supra):
"It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should 10 CRA No.27/2005 be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused."
153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established It may be noted here that this Court indicated that the circumstances concerned "must or should" and not "may be" established. There is not only a grammatical but a legal distinction between "may be proved" and "must be or should be proved" as was held by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra, (1973) 2 SCC 793 where the observations were made.
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency, (4) they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154. These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
155. It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a 11 CRA No.27/2005 corpus delicti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in King v. Horry, 1952 NZLR 111, thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt:
the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."
156. Lord Goddard slightly modified the expression 'morally certain' by "such circumstances as render the commission of the crime certain".
157. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry case (supra) was approved by this Court in Anant Chintaman Lagu v. State of Bombay, AIR 1960 SC 500. Lagu case (supra) as also the principles enunciated by this Court in Hanumant case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases - Tufail case (supra), Ramgopal case (supra), Chandrakant Nyalchand Seth v. State of Bombay, Criminal Appeal No. 120 of 1957 decided on February 19, 1958, Dharambir Singh v. State of Punjab, Criminal Appeal No. 98 of 1958, decided on November 4, 1958. There are a number of other cases where although Hanuman case (supra) has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration, (1974) 3 SCC 668, Mohan Lal Pangasa v. State of U.P., 1974 4 SCC 607, Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCC 35 and M.G.Agarwal v. State of Maharashtra, AIR 1963 SC 200 - a five-Judge Bench decision."
21. The Supreme Court in the case of Padala Veera Reddy v. State of A.P. reported in 1989 (supplementary) 2 SCC 706 has held as under:-
"10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no 12 CRA No.27/2005 direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests:
"(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra, (1982) 2 SCC 351.)"
11. See also Rama Nand v. State of Himachal Pradesh, (1981) 1 SCC 511, Prem Thakur v. State of Punjab, (1982) 3 SCC 462, Earabhadrapa alias Krishnappa v. State of Karnataka, (1983) 2 SCC 330, Gian Singh v. State of Punjab, 1986 Supp SCC 676, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1."
22. The Supreme Court in the case of Balwinder Singh v. State of Punjab reported in 1995 (supplementary) 4 SCC 259 has held as under:-
"In a case based on circumstantial evidence, it is now well-settled that the circumstances from which the conclusion of guilt is to be drawn should be fully proved and those circumstances must be conclusive in nature to connect the accused with the crime. All the links in the chain of events must be established beyond a reasonable doubt and the established circumstances should be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence. In a case based on circumstantial evidence, the court has to be on its guard to avoid the danger of allowing suspicion to take the place of legal proof 13 CRA No.27/2005 and has to be watchful to avoid the danger of being swayed by emotional considerations, howsoever strong they may be, to take the place of proof. It is in the context of the above-settled principles, that we shall analyse the evidence led by the prosecution."
23. The Supreme Court in the case of Harishchandra Ladaku Thange v. State of Maharashtra reported in (2007) 11 SCC 436 has held as under:-
"8. "9. Before analysing factual aspects it may be stated that for a crime to be proved it is not necessary that the crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consists of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed.
10. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, (1977) 2 SCC 99, Eradu v. State of Hyderabad, AIR 1956 SC 316, Earabhadrappa v. State of Karnataka, (1983) 2 SCC 330, State of U.P. v. Sukhbasi, AIR 1985 SC 1224, Balwinder Singh v. State of Punjab, (1987) 1 SCC 1 and Ashok Kumar Chatterjee v. State of M.P., AIR 1989 SC 1890) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In Bhagat Ram v. State of Punjab, AIR 1954 SC 621 it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the 14 CRA No.27/2005 circumstances must be such as to negative the innocence of the accused and bring home the offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P., (1996) 10 SCC 193 wherein it has been observed thus:
'21. In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.'
12. In Padala Veera Reddy v. State of A.P., AIR 1990 SC 79 it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests:
'10. (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;
(2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of guilt of the accused and such evidence should not only be consistent with the guilt of the accused but should be inconsistent with his innocence.'
13. In State of U.P. v. Ashok Kumar Srivastava, (1992) 2 SCC 86 it was pointed out that great care must be taken in evaluating circumstantial evidence and if the evidence relied on is reasonably capable of two inferences, the one in favour of the accused must be accepted. It was also pointed out that the circumstances relied upon must be found to have been fully established and the cumulative effect of all the facts so established must be consistent only with the hypothesis of guilt.
15 CRA No.27/200514. Sir Alfred Wills in his admirable book Wills' Circumstantial Evidence (Chapter VI) lays down the following rules specially to be observed in the case of circumstantial evidence: (1) the facts alleged as the basis of any legal inference must be clearly proved and beyond reasonable doubt connected with the factum probandum; (2) the burden of proof is always on the party who asserts the existence of any fact, which infers legal accountability; (3) in all cases, whether of direct or circumstantial evidence the best evidence must be adduced which the nature of the case admits; (4) in order to justify the inference of guilt, the inculpatory facts must be incompatible with the innocence of the accused and incapable of explanation, upon any other reasonable hypothesis than that of his guilt; and (5) if there be any reasonable doubt of the guilt of the accused, he is entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on circumstantial evidence but it should be tested on the touchstone of law relating to circumstantial evidence laid down by this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar v. State of M.P., AIR 1952 SC 343 it was observed thus:
'10. ... It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be drawn should in the first instance be fully established, and all the facts so established should be consistent only with the hypothesis of the guilt of the accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused.'
17. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in the prosecution cannot be cured by a false defence or plea. The conditions precedent in the words of this Court, before conviction could be 16 CRA No.27/2005 based on circumstantial evidence, must be fully established. They are:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned must or should and not may be established;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused."
24. The Supreme Court in the case of Ujjagar Singh v. State of Punjab reported in (2007) 13 SCC 90 has held as under:-
"14. Mr Goburdhun has also cited Mahmood v. State of U.P. (1976) 1 SCC 542, Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCC 35, Sharad Birdhichand Sarda v. State of Maharashtra, (1984) 4 SCC 116, Omwati v. Mahendra Singh, (1998) 9 SCC 81, Sudama Pandey v. State of Bihar, (2002) 1 SCC 679 and Ramreddy Rajesh Khanna Reddy v. State of A.P., (2006) 10 SCC 172 in support of his plea relating to the evaluation of circumstantial evidence. These judgments have broadly followed the principles laid down in the judgments referred to above and need not therefore be dealt with by us in extenso.
It must nonetheless be emphasised that whether a chain is complete or not would depend on the facts of each case emanating from the evidence and no universal yardstick should ever be attempted. It is in this background that we must examine the circumstances in the present case."
25. The Supreme Court in the case of Ram Singh v. Sonia reported in (2007) 3 SCC 1 has held as under:-
"39. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court 17 CRA No.27/2005 and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions."
26. Thus, if the abovementioned circumstances reproduced in the previous paragraphs are considered in the light of the judgments passed by the Supreme Court for appreciating the evidence, it is clear that although the complainant/injured Ramchandra Sahu (PW-4) has turned hostile on the question of firing of gunshot by the appellant, but he has admitted that he had sustained gunshot injury on his back and he as well as the appellant were brought to the police station by the police personnel. The complainant Ramchandra Sahu (PW-4) has also admitted that he was intending to construct another shop by the side of his existing shop and, therefore, he had a talk with the appellant and since the appellant was demanding more money, therefore, the contract was given to another person.
18 CRA No.27/2005Rajiv Mohan (PW-2) and Siya Saran (PW-6) have specifically stated that after hearing the gunshot, when they reached on the spot, they found that the appellant and the injured were scuffling with each other. The appellant had a country-made pistol in his hand which was snatched by Rajiv Mohan (PW-2). Live cartridges were seized from the possession of the appellant. Thus, where the appellant was caught on the spot itself and was found in possession of the firearm and the injured Ramchandra Sahu had sustained a gunshot injury as well as the appellant had some motive for causing injury to the injured Ramchandra Sahu, then it can be safely held that all the chains of circumstances have been proved. Although, it has come on record that during the incident, some persons had gathered in front of the shop of injured Ramchandra Sahu (PW-
4), but the appellant has not examined any witness to point out the possibility of firing the gunshot by any person other than the appellant.
27. It is further submitted by the counsel for the appellant that Rajesh Sharma (PW-8) has admitted in his evidence that the appellant was also injured and had sustained injuries on his body and he was admitted in the hospital and in view of the specific admission made by the Investigating Officer Rajesh Sharma (PW-8) and where the prosecution has failed to explain the injury on the body of the accused, then the appellant is entitled for acquittal because the prosecution has suppressed the very genesis of the incident.
28. The submissions made by the counsel for the appellant cannot be accepted for the simple reason that it is the prosecution case that after the gunshot was sustained by the injured Ramchandra Sahu, he had a scuffle with the appellant. Rajiv Mohan (PW-2) and Siya Saran (PW-6) has specifically stated that when they reached on the spot, the appellant and the injured Ramchandra Sahu (PW-4) were scuffling with each 19 CRA No.27/2005 other and the appellant had a country-made pistol in his hand. Thus, it is clear that immediately after sustaining the injury by the injured, there was a scuffle between the appellant and the injured Ramchandra Sahu (PW-4). Although, Rajesh Sharma (PW-8) has admitted that the appellant also had some injuries on his body and he was sent to the District Hospital Datia, but the appellant has not brought his MLC on record to show the nature of the injuries sustained by him. It is well established principle of law that non-explanation of every injury sustained by the accused is not fatal to the prosecution case. In order to give benefit of doubt to the accused, the Court must come to a conclusion that the injuries on the body of the accused were serious in nature and those injuries were caused during the incident. It is further pleaded that where the Court can distinguish the truth from the falsehood, then merely because the accused has sustained some injuries would not be sufficient to throw the case of the prosecution.
29. The Supreme Court in the case of Mano Dutt v. State of U.P. reported in (2012) 4 SCC 79 has held as under:-
"38. The question, raised before this Court for its consideration, is with respect to the effect of non- explanation of injuries sustained by the accused persons. In this regard, this Court has taken a consistent view that the normal rule is that whenever the accused sustains injury in the same occurrence in which the complainant suffered the injury, the prosecution should explain the injury upon the accused. But, it is not a rule without exception that if the prosecution fails to give explanation, the prosecution case must fail.
39. Before the non-explanation of the injuries on the person of the accused, by the prosecution witnesses, may be held to affect the prosecution case, the Court has to be satisfied of the existence of two conditions:
(i) that the injuries on the person of the accused were also of a serious nature; and
(ii) that such injuries must have been caused at the time of the occurrence in question.
40. Where the evidence is clear, cogent and 20 CRA No.27/2005 creditworthy; and where the court can distinguish the truth from falsehood, the mere fact that the injuries on the person of the accused are not explained by the prosecution cannot, by itself, be the sole basis to reject the testimony of the prosecution witnesses and consequently, the whole case of the prosecution. Reference in this regard can be made to Rajender Singh v. State of Bihar, (2000) 4 SCC 298, Ram Sunder Yadav v. State of Bihar, (1998) 7 SCC 365 and Vijayee Singh v. State of U.P., (1990) 3 SCC 190."
30. Thus, under the facts and circumstances of the case where the appellant has failed to prove that he had sustained any serious injury and it is the case of prosecution itself that immediately after sustaining the gunshot injury, the injured had a scuffle with the appellant, it is clear that the appellant might have sustained some injuries during the scuffle and under these circumstances, it cannot be said that the very genesis of the incident has been suppressed by the prosecution by not explaining the injuries on the body of the appellant.
31. Considering the totality of the facts and circumstances of the case, this Court is of the considered opinion that the prosecution has succeeded in establishing beyond reasonable doubt that the appellant had caused injury on the back of the injured Ramchandra Sahu by firing a gunshot. The prosecution has also succeeded in establishing beyond reasonable doubt that a .315 bore country-made pistol with two live cartridges and a shell of a fired cartridge was seized form the possession of the appellant and the appellant has failed to produce the license to possess the same and accordingly the conviction of the appellant under Section 307 of IPC and Section 25 (1-B) (a) read with Section 27 of Arms Act by the trial Court is upheld. Consequently, the appellant is held guilty for committing the offence under Section 307 of IPC and Section 25 (1-B) (a) read with Section 27 of Arms Act.
32. Heard on the question of sentence.
33. The trial Court has awarded the jail sentence of rigorous 21 CRA No.27/2005 imprisonment of 4 years for offence under Section 307 of IPC. Although the injured Ramchandra Sahu (PW-4) has denied that the appellant had any grievance against him on the question of not awarding the contract for construction of a shop, but Rajiv Mohan (PW-2) has stated in his cross-examination that there was a dispute between the appellant and the injured Ramchandra Sahu (PW-4) on the question of not awarding the contract. When the appellant himself has given a suggestion to Rajiv Mohan (PW-2) with regard to the enmity between the parties, then it is clear that as the appellant had a grievance against the injured Ramchandra Sahu (PW-4) because he had not granted contract to the appellant for construction of a shop, therefore, he caused gunshot injury to the injured Ramchandra Sahu (PW-4). This grievance on the part of the appellant cannot be said to be a genuine or reasonable grievance warranting attack on the complainant Ramchandra Sahu (PW-
4). It is the prerogative of a person whether to grant contract to a particular person or not. Nobody can compel another person to grant contract to a particular person only. Under these circumstances, this Court is of the considered opinion that the rigorous imprisonment of 4 years awarded by the trial Court appears to be justified. Similarly, the trial Court has not committed any mistake by awarding the rigorous imprisonment of one year for offence under Section 25 (1-B) (a) read with Section 27 of Arms Act. Accordingly, the sentences awarded by the trial Court are hereby affirmed. The trial Court has directed that the sentences shall run consecutively.
34. The Supreme Court in the case of O.M. Cherian v. State of Kerala reported in (2015) 2 SCC 501 has held as under:-
"20. Under Section 31 CrPC it is left to the full discretion of the court to order the sentences to run concurrently in case of conviction for two or more offences. It is difficult to lay down any straitjacket approach in the matter of exercise of such discretion by the courts. By and large, trial 22 CRA No.27/2005 courts and appellate courts have invoked and exercised their discretion to issue directions for concurrent running of sentences, favouring the benefit to be given to the accused. Whether a direction for concurrent running of sentences ought to be issued in a given case would depend upon the nature of the offence or offences committed and the facts and circumstances of the case. The discretion has to be exercised along the judicial lines and not mechanically.
21. Accordingly, we answer the reference by holding that Section 31 CrPC leaves full discretion with the court to order sentences for two or more offences at one trial to run concurrently, having regard to the nature of offences and attendant aggravating or mitigating circumstances. We do not find any reason to hold that normal rule is to order the sentence to be consecutive and exception is to make the sentences concurrent. Of course, if the court does not order the sentence to be concurrent, one sentence may run after the other, in such order as the court may direct. We also do not find any conflict in the earlier judgment in Mohd. Akhtar Hussain, (1988) 4 SCC 183 and Section 31 CrPC."
35. If the facts and circumstances of the case are considered, then this Court is of the view that the sentences may be directed to run concurrently instead of consecutively. Accordingly, the sentence awarded by the trial Court is modified and it is directed that both the sentences shall run concurrently.
36. With aforesaid modification, the judgment and sentence passed by the Sessions Judge Datia in ST No. 52/2004 is hereby affirmed. The appellant is on bail. His bail bond and surety bond are cancelled with immediate effect. The appellant is directed to surrender immediately before the trial Court for undergoing the remaining jail sentence.
37. The appeal fails and is hereby dismissed.
(G.S. AHLUWALIA)
Judge
AKS 19/04/2018
ALOK KUMAR
2018.04.20 11:19:05 +05'30'