Madhya Pradesh High Court
Kanahiya vs The State Of Madhya Pradesh on 7 July, 2022
Author: Sujoy Paul
Bench: Sujoy Paul, Prakash Chandra Gupta
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CRA No.2402/2013
CRA No.2441/2013
CRA No.2444/2013
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
CRIMINAL APPEAL NO. 2402/2013
Between:-
UMESH KATIYA,
S/O. SHRI NEHRULAL KATIYA,
AGED ABOUT 25 YEARS,
R/O. KAILASH NAGAR, QTR. NO.2987,
SHOBHAPUR COLONY,
PATHAKHEDA, P.S. SARNI, DISTRICT
BETUL
APPELLANT
(BY SHRI SANKALP KOCHAR -ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION SARNI,
DISTRICT BETUL (M.P.)
RESPONDENT
(BY SHRI ARVIND SINGH- GOVERNMENT ADVOCATE FOR
THE STATE AND SHRI RAKESH SAGAR- ADVOCATE FOR
THE OBJECTOR)
CRIMINAL APPEAL NO.2441/2013
Between:-
SHAILENDRA SINGH, S/O MANGAL
SINGH, AGED ABOUT 37 YEARS, R/O.
SHOBHAPUR COLONY, TYPE-III,
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CRA No.2402/2013
CRA No.2441/2013
CRA No.2444/2013
OPPOSITE TO QUARTER NO.141,
JHOPDI, PATHA KHEDA, POLICE
STATION : SARNI, DISTRICT-BETUL
(M.P.)
...APPELLANT
(BY SHRI AMIT DAVE AND SHRI ABHIJEET AWASTHY
-ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION SARNI,
DISTRICT BETUL (M.P.)
..RESPONDENT
(BY SHRI ARVIND SINGH- GOVERNMENT ADVOCATE FOR
THE STATE AND SHRI RAKESH SAGAR- ADVOCATE FOR THE
OBJECTOR)
CRIMINAL APPEAL NO.2444/2013
Between:-
KANAHIYA, S/O. SHRI ROOPLAL
BOREBAN, AGED ABOUT 31 YEARS,
R/O. PREMNAGAR, QUARTER NO.168,
TYPE-II, PATHA KHEDA, POLICE
STATION : SARNI, DISTRICT - BETUL
(M.P.)
...APPELLANT
(BY SHRI ANUBHAV JAIN -ADVOCATE)
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION SARNI,
DISTRICT BETUL (M.P.)
..RESPONDENT
(BY SHRI ARVIND SINGH- GOVERNMENT ADVOCATE FOR
THE STATE AND SHRI RAKESH SAGAR- ADVOCATE FOR THE
OBJECTOR)
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CRA No.2402/2013
CRA No.2441/2013
CRA No.2444/2013
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Reserved on : 21/6/2022
Delivered on : /7/2022
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These appeals coming on for final hearing on 21.06.2022,
JUSTICE PRAKASH CHANDRA GUPTA passed the following:
JUDGMENT
1. The aforesaid appeals are decided by the common judgment.
2. All the criminal appeals arise out of the judgment dated 10/09/2013 passed by the First Additional Session Judge, District - Betul (M.P.) in Sessions Trial no. 66/2008 by which the appellants/ accused persons have been convicted and sentenced for the following offences:-
Appellants Conviction under Sentence
section
All Appellants 201 of IPC 3 Years R.I. and fine of
Rs.1000/-, in default 1 month
R.I.
Umesh Katiya and 302 r/w 34 of IPC Life Imprisonment and fine of Shailendra Singh Rs.5000/-, in default 5 months R.I. Shailendra Singh 364 IPC Life Imprisonment and fine of Rs.3000/-, in default 3 months R.I. Shailendra Singh 435 IPC 3 Years R.I. and fine of Rs.1000/-, in default 1 month R.I. (All sentences to run concurrently) 4 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013
3. The prosecution story in short is that on 04/12/2007, at about 02:00 p.m, deceased Mukesh went to Bagdona with his Hero Honda Motorcycle after telling his wife Saroj Bora (PW-7) but he did not return. He was searched by his family members but no one could find him. Deceased was carrying a mobile phone having no 9425002860 but it was switched off. On 05/12/2007 at 05:40 p.m, Head Constable (hereinafter reffered to as HC) Siya Sharan Sharma (PW-5) wrote a missing person report (Ex. P- 1) at Police Outpost Pathakheda, Police Station Sarni, District Betul based on the information given by the brother of the deceased, Chadrashekhar Bora (PW-1). A Roznamcha Sana (Ex. P-44) also has been written at Police Outpost Pathakheda in this respect.
4. On 09/12/2007 an intimation has been given by Rasid khan resident of Tawanagar to the P/S Tawanagar that a motorcycle is laid down in burnt condition. In this respect a roznamcha Sana no. 206 has been written at P/S Tawanagar Distt. Hoshangabad. Sub-Inspector Dilip Jharbade (PW-8) went to verify the aforesaid intimation with other police officials on the same day. He found that a motorcycle was laid down in burnt condition with chasis no. 07EDNF09476 with key inserted in it having no.1922. Dilip Jharbade (PW-8) seized the aforementioned burnt motorcycle from the pit beside the main road near Dhalai tower before witnesses and prepared a seizure memo (Ex. P- 26) on the same day at 03:40 p.m. On verification, aforementioned motorcycle found to be of deceased Mukesh.
5. Thereafter HC Kundalik Rao prepared a spot map (Ex.P-2) in relation to the house and locality of the deceased. It was found during the inquiry of the missing person that deceased Mukesh used to talk with accused Shailendra and before his missing, he talked to him on phone and 5 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 Shailendra had called him to meet in Bagdona. After inquiry of the missing person, Sub Inspector (hereinafter referred to as SI) Mahendra Singh Chouhan (PW-14) lodged an unregistered crime report (Zero FIR, Ex. P-33) against the accused Shailendra Singh and others on 10/12/2007 at 12:30 a.m. On the same day HC Shyam Patrekar (PW 11) registered an FIR (Ex. P- 32) Crime no. 378/07 under Section (hereinafter referred to as u/s) 364 of Indian Penal Code (hereinafer referred to as IPC) against accused Shailendra Singh and others on the basis of unregistered FIR (Ex.P.-33).
6. During Investigation SI Mahendra Singh Chouhan (PW-14) on 10/12/2007 at 10:00 AM took accused Shailendra Singh in his custody and prepared memorandum (Ex. P-12) under section (hereinafter referred to as u/s) 27 of Indian Evidence Act (hereinafter referred to as IEA) in which accused Shailendra disclosed that- 'I buried the deadbody of Mukesh Bora near bridge of Tawa river, Chhindwara road, Rampur under the sand and covered with stones; My car and motorcycle is kept at my home in Shobhapur Colony, Mukesh's watch, mobile, and the spade used to bury the body is kept at accused Umesh's home; Gave the gold chain of deceased Mukesh to accused Kanahiya after telling him about the incident.' On the same day at 12:35 p.m. at the instance of accused Shailendra Singh and presence of witness Naresh Pandya (PW-3) and Nandu Patil (DW-1) deceased Mukesh's body was exhumed from the location stated by the accused Shailendra Singh and exhumation memo (Ex.P.-13) was prepared by SI Mahendra Singh Chouhan (PW-14) and he also prepared Dastyabi Panchnama (Ex.P-14) at 01:50 p.m. Chandrashekhar (PW-1) identified that the dead body is of Mukesh. SI Mahendra Singh Chouhan (PW-14) 6 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 prepared identification memo (Ex.P-6), thereafter he also prepared a recovery memo of the dead body (Ex.P-5). On 10/12/2007 at 02:00 p.m, SI Mahendra Singh Chouhan (PW-14) has written Dehati Marg Intimation (Ex.P-34 A). ASI Santosh Sen (PW-16) lodged Marg intimation (Ex.P-45) at P/S Sarni on the basis of Dehati Marg Intimation (Ex.P-34 A). SI Mahendra Singh Chouhan (PW-14) prepared spot map (Ex.P.-7), where body of the deceased was buried.
7. On 10/12/2007 at 04:05 p.m, SI Mahendra Singh Chouhan (PW-14) seized plain soil and blood stained soil from the spot vide seizure memo (Ex. P- 15). In the direction of SI Mahendra Singh Chouhan (PW 14), photographs of the dead body of the deceased were taken by the photographer. After giving intimation (Ex.P- 3) to panchas, SI Mahendra Singh Chouhan (PW 14) prepared a Dead Body Panchnama (Ex. P- 4).
8. Thereafter SI Mahendra Singh Chouhan (PW-14) had sent the dead body of deceased for Post Mortem (hereinafter as PM) to CHC with application (Ex. P-36) by Constable Mohan Singh Thakur.
9. On 10/12/2007 at 04:15 p.m. SI Mahendra Singh Chouhan (PW-14) arrested accused Shailendra Singh and prepared arrest memo (Ex.P-35 A), at 04:18 p.m seized blood stained brown coloured shirt and light blue Jeans pant from accused Shailendra Singh which he was wearing at the time of incident vide seizure memo (Ex.P-17). At 04:20 p.m, he seized a Nokia Mobile phone with SIM having no. 9425002760 from the possession of accused Shailendra Singh vide seizure memo (Ex.P-16). At 05:30 p.m being in custody accused Shailendra Singh at the time of interrogation again disclosed that baseball bat is kept in the middle room at his home. Watch and mobile of deceased are with Umesh and the gold chain of 7 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 deceased is with Kanahiya, therefore SI Mahendra Singh Chouhan (PW-
14) has written memorandum (Ex.P-21). At 06:15 p.m, he seized a car bearing no.- MH-31-CN-5319 from place in front of accused Shailendra Singh's residential home in Shobhapur Colony, pathakheda. It was found that the aforementioned car was in running condition and back of the front seat, seat stand, door and few other places inside the car were carrying blood stains, seized the car vide seizure memo (Ex.P- 23). At 06:25 p.m SI Mahendra Singh Chouhan (PW-14) seized a Hero Honda motorcycle bearing no MP-48-B-9716 from the front room in house of accused Shailendra Singh vide Seizure memo (Ex.P-22). At 06:35 p.m, he seized a baseball bat produced by the accused Shailendra Singh from the corner in the middle room of his house vide Seizure memo (Ex. P-24). At 08:15 p.m SI Mahendra Singh Chouhan (PW-14) seized blood stained seat cover (i.e. 3 seats) produced by accused Shailendra Singh from under the bridge of Machna river which was kept on sand vide seizure memo (Ex. P-25).
10. Dr. Manish Vishwas (PW-10) received the body of deseased Mukesh Bora on 11/12/2007 at 10:25 a.m. for postmortem from constable Roshan Singh. At the time of postmortem, he found that deceased was wearing a grey colour shirt with vertical white line, white banyan, blue underwear, navy blue full pant with belt, pearl silver ring on the ring finger of right hand, kalawa on right wrist, 2nd, 4th and 5th button were broken. Left pocket of pant contained Rs. 80/-. Dr Manish Vishwas (PW-10) found the below mentioned injuries over the body:-
1. Lacerated wound 5.5 x 1 cm over the left parietal region.
2. Lacerated wound 3 x 1 cm on right occipital parietal region.
3. Lacerated wound 0.5 x 2 cm on right parietal region.8 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013
4. A cotton handkerchief is found tied over the mouth with the leucoplast tape which is tagged with it, wrapped around the face, cheeks covering the lower halves of both pinna in back of neck below the occipital region.
5. A ligature mark all around the neck 0.5 cm broad.
11. Dr. Manish Vishwas (PW-10) had also found that the body was in advance decomposition state therefore he opined that postmortem of dead body should be made with aid of expert forensic laboratory, Bhopal. He has given short postmortem report (Ex. P- 30). Thereafter deadbody of the deceased was sent to forensic laboratory Bhopal for further postmortem.
12. On 12/12/2007 Dr. Manish Vishwas (PW-10) with presence and guidance of the then, Joint Director Medico Legal Institute, Gandhi Medical College, Bhopal, Dr. D.S. Badkur (PW 17), conducted postmortem of dead body they had found multiple injuries on the body deceased Mukesh. During postmortem handkarchief and leucoplast removed from face, Shirt, Baniyan, Full pant with belt, underwear, pearl ring and kalawa and eighty rupees in cash degloved skin of both hands and viscera have been preserved and handed over to constable Roshan for chemical examination.
13. After completion of the postmortem Dr. Manish Vishwas (PW-10) and Dr. D.S. Badkur (PW-17) gave detailed postmortem report (Ex. P- 31).
14. On 12.12.2007 at 09:30 p.m. Sub Inspector Mahendra Singh Chouhan (PW- 14) took accused Kanahiya Boreban's custody in presence of panch witnesses and at the time of interrogation accused Kanahiya Boreban intimated that he has kept the chain in the pocket of a full pant at home. On the same day at 10:30 p.m, accused Kanahiya Boreban produced a chain made up of gold like metal from the pocket of full pant from his 9 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 home. SI Mahendra Singh Chouhan (PW-14) seized the aforementioned chain from the possession of accused Kanahiya Boreban and prepared a seizure memo (Ex.P-9). On the same day at 11:00 p.m he arrested accused Kanahiya Boreban and prepared arrest memo (Ex. P- 38).
15. On 14/12/2007 at 04:30 p.m, HC Gopal Singh Uikey seized sealed packet of deceased's viscera, liquid samples sealed by seal of Hamidiya Hospital Bhopal from the possession of constable Roshan vide seizure memo (Ex. P- 42). On 19/12/2007 at 07:35 p.m, HC Gopal Singh Uikey seized a sealed packet bearing seal of Hamidiya Hospital Bhopal from the possession of Constable Roshanlal vide (Ex. P- 43). On 20/02/2008 at 12:45 p.m, Devendra Soni (PW-6) weighed the gold chain and found it was 30.160 gm. in this respect ASI Santosh Sen (PW-16) prepared a weigh Memo (Ex.P-11). On 20/02/2008 at the time of identification, Saroj Bora (PW-7) identified the gold chain as deceased's chain. In this respect identification memo (Ex.P-10) was prepared.
16. On 05/12/2007, SHO Sarni called call details of mobile no 9425002760 and 9425002860 from SDO BSNL Office Distt. Betul vide letter (Ex.P- 29). Call details of both the aforementioned mobile phone numbers, article 1 to 14 received from the office of SDO (T) BSNL Distt. Betul. On 05/01/2008 SHO Sarni called for the intimation about issuance of SIM No. 9425002760 and 9425002860 to the deceased Mukesh and Shailendra respectively are issued to someone and being used by the deceased and Shailendra vide letter (Ex. P- 40). In this respect intimation was given by the office of BSNL Distt. Betul to Police vide letter no. circle engineer phone/ mobile/ 07-08 dated 11/01/2008. On 31/05/2008 at 08:00 a.m., SI Deepak Parashar (PW 13) seized photographs (article 15 to 22) 10 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 and their negatives (article 15C to 22C) of deceased which were clicked by the photographer, produced by Constable Harendra vide seizure memo (Ex. P- 36).
17. On 29/05/2008 at 12:15 p.m, accused Umesh Katiya was arrested by SI Deepak Parashar (PW-13) from court premises Distt. Betul vide arrest memo (Ex. P- 35) during the custody, statement of accused Umesh Katiya under Section 27 of the IEA was recorded in which he intimated that "The dead body of Mukesh Bora was buried under sand and was covered with stones near bridge of Tawa river, Chhindwara road, Rampur. Car and bike was kept in the house of Shailendra in Shobhapur colony. Watch of Mukesh was hidden in jungle of Sarni and mobile in jungle of baretha. Spade used to bury the dead body was hidden in jungle of Sarni and he could recover the aforementioned watch, mobile and spade. In this respect SI Deepak Parashar (PW-13) prepared memorandum (Ex. P- 34). On 30/05/2008 at 11:00 a.m., Deepak Parashar (PW-13) alongwith panch witnesses and accused Umesh searched mobile phone in jungle of Sarni at Chhindwara road but mobile phone could not be recovered, then search memo (Ex. P-20) was prepared. On 30/05/2008 accused Umesh being in police custody intimated that "he threw mobile in jungle near Sarni, kept watch near water tank present at courtyard after putting it in polythene bag between bricks in my house at village Kailash Nagar and spade in the backside of the courtyard on the roof of door in my home at Kailash Nagar, in this respect Deepak Parashar (PW-13) has prepared Memorandum (Ex. P-18). On the same day at 09:00 a.m., Deepak Parashar (PW 13) seized a wrist watch and a spade produced by accused Umesh 11 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 Katiya from his house (House no.- 2987) at Kailash Nagar. Deepak Parashar has prepared Seizure memo (Ex. P-19).
18. FSL report (Ex.P- 47) was received from Regional Forensic Science Laboratory, Bhopal alongwith letter (Ex.P-46) dated 11/06/2008. As per FSL Report (Ex.P-47) human blood stains were found on:-
Accused Shailendra Singh- baseball bat, 4 seat covers of car seized at the instance of accused Shailendra Singh and shirt, baniyan, full pant, belt underwear, thread and ring seized from the dead body of deceased.
Blood group B was also found on the baseball bat and seat covers of the car.
19. Statement of witnesses have been recorded u/s 161 of the Code of Criminal Procedure (hereinafter referred as CrPC). After completion of investigation chargesheet u/s. 364, 302, 201, 34 & 435 of the IPC has been filed against the accused persons. The matter was committed before the court of Sessions.
20. Learned trial court framed charges u/s 364/34, 302/34, 435/34 & 201 of the IPC against the accused persons Shailendra Singh and Umesh Katiya and u/s 201 of the IPC against accused Kanahiya. Accused persons abjured the guilt and contended that they are innocent and have falsely been implicated in the offence.
21. The prosecution has examined 19 witnesses namely, brother of deceased- Chandrashekhar (PW-1), wife of deceased- Saroj Bora (PW- 7), Panch witnesses- Chandrakant (PW-2), Naresh Pandya (PW-3), Banwari (PW-4), Devendra Soni (PW-6), Amrit Nandwana (PW-12). HC Siya Sharan (PW-5), who registered the missing person report (Ex. P-1); HC 12 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 Shyam Patrekar (PW-11), who wrote the FIR (Ex.P-32); ASI Santosh Sen (PW-16), who wrote Marg Intimation (Ex.P-45): Dr. Manish Vishwas (PW-
10) and Dr. D.S. Badkur (PW-17), who conducted pm; SDO (Telephone) S.K. Vajpayee (PW- 9) and SDO BSNL (Mobile) Vinay Vishwakarma (PW-18), are related to call details; Home Guard Sunil Singh Raghuvanshi (PW-15) who is seizure (Ex. P- 42) and Ex. P- 43) witness; M.P. Bhaskar (PW-19) who is senior scientist FSL, Bhopal; SI Deepak Parashar (PW-13), SI Mahendra Singh Chouhan (PW-14) and ASI Dilip Jharbade (PW-8) are investigating officers.
22. After completion of prosecution evidence accused persons have been examined under section 313 of the Code of Criminal Procedure. Their defence before the trial court was that they are innocent, they have not commited any offence and police have falsely implicated them in the offence. Accused persons have examined Nandu Patil (DW-1) and Security Officer Bridgestone India Pvt. Ltd. Pithampur Distt. Dhar, Ramji Mishra (DW-2).
23. In the impugned judgment, the trial court has found proved that :-
(1) Accused Shailendra Singh abducted deceased Mukesh Bora with intention to commit murder of the deceased. (2) Accused Shailendra Singh along with accused Umesh commited murder of deceased Mukesh Bora in furtherance of common intention.
(3) Accused Shailendra Singh burnt the motorcycle of deceased Mukesh Bora, with intent to cause mischief by fire. (4) Accused Shailendra Singh burnt the motorcycle of deceased Mukesh Bora and Accused Shailendra Singh alongwith accused 13 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 Umesh buried the dead body of deceased Mukesh Bora with intent to cause disappearance of evidence of offence. (5) Accused Kanahiya took the gold chain belonging to the deceased Mukesh Bora from accused Shailendra even after knowing that accused Shailendra has caused murder of deceased Mukesh Bora.
(6) Learned trial court, in paragraph no. 123 of its judgment has also found proved that accused Shailendra Singh and deceased Mukesh Bora had enemity between each other because of their work i.e. contract work and money lending, therefore accused Shailendra Singh had motive to cause death of deceased.
24. Challenging the impugned judgment, it is submitted by Abhijeet Awasthy, learned Advocate, that the prosecution has failed to establish the guilt of the appellant beyond reasonable doubt in the case solely bassed on circumstantial evidence. The chain of causation must not be broken, whereas in the instant case no clinching and cogent evidence is available against the appellant. Learned counsel further submitted that name of appellant-Shailendra is not mentioned in the missing person report. The motive of appellant to commit the alleged offence is not established. Recovery of dead body and articles were done from an open place, most of the witnesses are relatives of the deceased, deceased was found at the behest of his brother Chandrashekhar (PW-1), seizure witnesses reached at police station on their own, report of FSL is not conclusive, infact no blood was found on the shirt of appellant Shailendra Singh, trial Court acted only upon presumptions statement of witnesses under section 161 of the Cr.P.C. recorded after 6 days of disappearance of the deceased and no complaint by 14 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 widow of deceased, Saroj (PW-7) about behaviour of appellant Shailendra with deceased was made to police. It is also contended by the learned counsel Shri Awasthy that the prosecution has failed to establish the motive of the appellant beyond reasonable doubt, the chain of circumstances are not complete and conclusive against the appellant. It is also submitted that impugned judgment and order of conviction passed is erroneous, contrary to law and against the evidence available on record. The learned counsel has placed reliance on the following judgments:- Tanviben Pankajkumar Divetia V State of Gujarat, (1997) 7 SCC 156; Sharad Birdhichand Sarda V State of Maharashta (1984) 4 SCC 116; Mousam Singh Roy V State of West Bengal (2003) 12 SCC 377; Noor Aga V State of Punjab, (2008) 16 SCC 417; Mohinder Singh and anr. V State of Punjab and ors ( CRA 749 of 2002).
25. It is submitted by Shri Sankalp Kochar, learned counsel for appellant Umesh, that there is no direct evidence in the case rather the case is based on circumstantial evidence and the chain of circumstances is not complete against the appellant. Memorandum (Ex. P-18) has been taken after 6 months of the incident. As per Memorandum (Ex.P-12) of co-accused Shailendra Singh that after murder of the deceased he had given mobile phone, wrist watch and spade to appellant but during investigation mobile phone of deceased has not been recovered. Apart from that the alleged wrist watch of deceased was not put up for identification, it is also not established that the seized spade was used to bury the dead body, therefore in absence of incriminating evidence, seizure of the alleged articles from appellant is not sufficient to hold him guilty. Hence, his conviction and sentence is not sustainable. The learned counsel has relied upon the 15 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 following cases:- Inspector of Police V Bala Prasanna, (2008) 11 SCC 645; Anter Singh V State of Rajasthan, (2004) 10 SCC 657; Pankaj V State of Rajasthan, (2016) 16 SCC 192; Dhan Raj V State of Haryana, (2014) 6 SCC 745 and Sujit Biswas V State of Assam (2013) 12 SCC 406.
26. Learned counsel for appellant Kanahiya, Shri Anubhav Jain submitted that the learned trial court has convicted and sentenced the appellant solely on the ground that the appellant kept the gold chain in his possession knowingly that it belongs to the deceased Mukesh while there is no evidence available on record, to convict the appellant under section 201 of IPC. The learned counsel has relied upon the case of State and ors. V K.C. Hamsa and ors. ( CRA No. 770, of 2015).
27. Per contra, Shri Arvind Singh, Government Advocate and Shri Rakesh Sagar, learned counsel for complainant opposed the submissions and submitted that the judgment of conviction and sentence is in accordance with law. Chain of circumstances is fully established against the appellants, therefore, the trial court has rightly held appellants guilty of the alleged offences, therefore, the aforesaid appeals are liable to be rejected.
28. No other point is pressed by the counsels for the parties.
29. Heard learned counsels for both the parties.
30. Before appreciating the evidences on merit, this court thinks it apposite to find out as to whether the death of deceased Mukesh Bora was homicidal in nature or not.
31. Dr. Manish Vishwas (PW-10) and Dr. D.S. Badkur (PW-17) has conducted the postmortem of the dead body of the deceased Mukesh Bora.
16 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013Dr. Manish Vishwas (PW 10) has stated that we found the dead body in following condition:-
"Body is in state of advance decomposition emitting foul smell, epidermis peal off & loosely adherent to body surface. Whole body is distended and swollen due to gases of decomposition, abdomen distended and tense. Degloving of the skin of hands and feet present. diffuse of morbidity of abdomen and hands. Body is soiled with mud and decomposed fluid. Scalp hair black 2-3 inches long easily peeling out, both eye closed swollen, eye ball partially protruding out. Nose slightly flattened due to pressure. Nostrils contain soil particles. Lips swollen apart, tongue protruded out about 1 inch & swollen and soft. Both upper limbs partially abducted. Both lower limbs partially flexed with knees widely apart. Penis and scrotum are markedly distended due to gases. Penis not circumcised. Rigor mortis passed off and gas stiffening present on all over the body. Hypostasis diffusely present on back and lateral aspects of the body. No fly infestation found. A cotton hand kerchief is found tied over the mouth with the help of leucoplast tape which was tagged with it and wrapped around the face (cheeks) covering the lower halves of both pinna and back of neck below the occipital region.The leucoplast tap measured 104 inches in length and outer 24 inches of it was torn and bifurcated. The handkerchief was tied to the inner most end of the leucoplast and was partially gagged into the mouth."
32. Dr. Manish Vishwas (PW-10) stated that at the time of conducting postmortem following injuries were found on the body of deceased:-
17 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/20131. Lacerated wound 5.5 x 1 cm present on left parietal region just over & anterior to parietal eminence directed anteriorly and slightly laterally & downwards. Underneath the scalp is diffusely ecchymosed all over the parietal region.
2. Lacerated wound 3 x lcm situated on right occipital parietal region over lamdoid suture transversely.
3. Lacerated wound 2 x 5cm situated on right parietal eminence, directed posteriorly downwards and laterally.Underneath the injury No.2 & 3 scalp is diffusely ecchymosed on right parietal, temporal and occipital region.
4. A ligature mark 0.5 cm broad present transversely all around the neck situated on lower part of thyroid cartilage. Margins of the mark are slightly hard and epidermis firmly attached at places, underneath tissues ecchymosed.
33. Dr. Manish Vishwas (PW-10) has opined that the injuries found on the body of the deceased were antemortem injuries, on the head caused by hard and blunt object and evidence of gagging, smothering and mark of strangulation around neck caused by some rope or string. Death could have been due to asphyxia as a result of strangulation and smothering and death was homicidal. Duration of death was within 6-10 days since postmortem examination i.e. 12/12/2007. Postmortem reports are Ex.P-30 and Ex.P-31. Above statements of Dr. Manish Vishwas (PW-10) is supported by Dr. D.S. Badkur (PW-17)
34. In paragraph 6 of cross-examination Dr. Manish Vishwas (PW-10) has admitted that he did not mention in first postmortem report (Ex. P-30) that injuries are antemortem though he stated that they were antemortem.
18 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/201335. Mahendra Singh Chouhan (PW-14) stated that he has made identification of dead body of deceased Mukesh Bora and prepared identification memo (Ex.P-6). Chandrashekhar (PW-1) and Naresh Pandya (PW-3) have also admitted that they had identified that the deadbody was of deceased Mukesh Bora. Their statement is reliable, therefore, it is clear that the dead body was of the deceased Mukesh Bora. Statement of Dr Manish Vishwas (PW-10) regarding homicidal death of the deceased and injuries found on the body of deceased is not disputed in the cross examination. There is no reason to disbelieve the statements of Dr. Manish Vishwas (PW-10) and Dr. D.S. Badkur (PW- 17), therefore, their statement is reliable and it is clear that the death of deceased was homicidal in nature.
36. The next question for consideration is that whether the accused persons namely Shailendra Singh and Umesh Katiya have caused death of the deceased.
37. It is pertinent to mention here that there is no direct evidence or eye witness in the case, entire prosecution case is based on circumstantial evidence.
38. In respect of circumstantial evidence, Hon'ble the Apex Court in the case of Sharad Birdhichand Sarda V State of Maharashtra [(1984) 4 SCC 116] opined as under:-
"153. A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.19 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013
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 vs. State of Maharashtra 1973 2 SCC 793 where the observations were made:
[SCC Para 19, p. 807: SCC (Cri) p. 1047] "Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accusedis 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."
39. Learned counsel for the appellant-Shailendra Singh, has placed reliance upon the case of Tanviben Pankajkumar Divetia (Supra) wherein hon'ble the apex court has observed:-
20 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013"46. We may indicate here that more the suspicious ciscumstances, more care and caution is required to be taken otherwise the suspicious circumstances may unwittingly enter the adjudicating thought process of the court even though the suspicious circumstances had not been clearly established by clinching and eliable evidences."
The learned counsel has placed reliance upon Sharad Birdhichand (Supra), wherein Hon'ble the Apex Court has observed thus:-
"179. We can fully understand that though the case superficially viewed bears an ugly look so as to prima facie shock the conscience of any court yet suspicion, however great it may be, cannot take the place of legal proof A moral conviction however strong or genuine cannot amount to a legal conviction supportable in law.
180. It must be recalled that the well established rule of criminal justice is that "fouler the crime higher the proof'. In the instant case, the life and liberty of a subject was at stake. As the accused was given a capital sentence, a very careful, cautious and metic-ulous approach was necessary to be made."
Learned counsel has placed reliance upon Mousam Singh (Supra) wherein Hon'ble the Apex Court has observed:-
"28. It is also a settled principle of criminal jurisprudence that the more serious the offence, the stricter the degree of proof, since a higher degree of assurance is required to convict the accused."21 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013
The learned counsel has placed reliance upon Noor Aga (Supra), where the aforementioned point held in the case of Mousam Singh (Supra) was discussed.
40. Learned counsel for the appellant Umesh has placed reliance upon the case of Bala Prasanna (Supra) it was discussed that:-
"14. Law is well settled that the prosecution while relying upon the confessional statement leading to discovery of articles under section 27 of the Evidence Act has to prove through cogent evidence that the statement has been made voluntarily and leads to discovery of the relevant facts. The scope and ambit of section 27 of the Evidence Act had been stated and restated in several deicisions of this Court. However, in almost all such decision reference is made to the observation of the Privy Council in Pulukuri Kotaya V King Emperor."
Learned Counsel for appellant has further placed reliance on the case of Anter Singh (Supra), where the following is discussed:-
"14. .....The reason behind this partial lifting of the ban against confession and statement made to police, is that if a fact if actually discovered in consequence of information given by accused, it affords some guarantee of truth of that part, and that part only, of the information which was the clear, immediate and proximate cause of the discovery. No such guarantee or assurance attaches to the rest of the statement which may be indirecly or remotely related to the fact discovered"
Learned counsel has also placed reliance on the case of Pankaj (Supra) where the following has been discussed:-
22 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013"25. It is a well settled principle of law that when the genesis and the manner of the incident is doubtful, the accused cannot be convicted."
Learned counsel has placed reliance on the case of Dhan Raj (Supra), where the following has been discussed:-
"13. ....Recovery must be if a fact which was relevant to connect it with the commission of the crime. Therefore, even if the recovery of the goods is reliable then it does not indicate that the appellant accused committed the murder and the only admissible fact which can be inferred is that they were in possession of the stolen goods."
The learned counsel has placed placed reliance on the case of Sujit Biswas (supra) where in relation to abscondence, the following has been discussed-
"14. ....It can scarcely be held as a determining link in completing the chain of circumstantial evidence which must admit of no other reasonable hypothesis than that the guilt of accused."
41. Learned Counsel for appellant Kanahiya, has placed reliance on the case of K.C. Hamsa and ors. (Supra) where the following is discussed:-
"46- In order to attract section 201 of I.P.C., the accused should know or have the reason to believe that an offence has been committed, he should cause any evidence of the commission of that offence to disappear, or give any information respecting the offence which he knows or has reason to be false, with the intention of screening the offender from legal punishment."23 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013
42. Learned Government Advocate Shri Arvind Singh has relied upon the judgment of Viran Gyanlal Rajput V State of Maharashta [(2019) 2 SCC 311], where it has been stated that:-
"16. ....If the accused volunteered to show the place where he has hidden the deceased's cloth at a particular place only after five days, the investigating officer cannot be blamed for the same. In a given case, the accused may confess ten or fifteen days after his arrest and as such recovery cannot be suspected on this ground alone. Together, these circumstances establish that the appellant had hidden the body of the deceased, as well as her clothes, in a bid to suppress the evidence of his crime."
Learned Government Advocate for the State has also relied upon the judgment of Harinder Singh Alias Hira V State of Punjab, [(2019) 20 SCC 321], where it was discussed in the case that if the dead body of deceased was recovered from a place at the instance of accused, and the accused has made extra judicial confession before witness, then Hon'ble the Apex Court held that these circumstances by themselves form a complete chain which clearly leads to only one inference that it is the accused alone who could have murdered the deceased. In the case of Mohinder Singh and anr. (supra) the Hon'ble Apex Court has observed that prosecution has not come out with any special reason as to why the accused planned such a brutal attack on the deceased so long after the attack on accused, nor has it produced any material to show any proximate cause. In this background, we are inclined to agree with the defence that the motive suggested, on the fact of this case, seems to be very weak and stale.
24 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/201343. Significantly, in this case, the prosecution has relied upon the recovery of dead body and incriminating articles at the instance of appellants/ accused persons.
44. In respect of the below mentioned points, learned trial court has found following circumstances proved, to incriminate the accused persons:-
(1) On the date of incident i.e. 04/12/2007 accused Shailendra Singh called deceased Mukesh Bora through his mobile phone and in the conversation the accused Shailendra asked Mukesh to come to village Bagdona.
(2) On the same day at around 1:30 p.m deceased Mukesh went to meet Shailendra in village Bagdona, telling his wife, Saroj Bora (PW-7) about the same, on his Hero Honda motorcycle.
(3) While going, deceased was wearing a gold chain, a wrist watch and was having a mobile phone with him. After that the deceased never returned home.
(4) On 09/12/2007 at 03:40 p.m, burnt motorcycle of the deceased was seized from the pit beside the main road near Dhalai Tower, P/S Tawanagar, Distt.- Hoshangabad at the instance of accused Shailendra (Ex. P- 26).
(5) On the basis of disclosure statement (Ex.P-12) of accused Shailendra Singh- dead body of deceased Mukesh was exhumed near the bridge of Tawa river, Chindwara road, Rampur.
(6) On the basis of disclosure statement (Ex. P- 12) at the instance of accused Shailendra Singh a car and a motorcycle used in commission of crime are recovered from his house.25 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013
(7) On the basis of second disclosure statement (Ex.P-21) of accused Shailendra Singh- human blood stained baseball bat and seat covers of car, used in the comission of alleged offence were recovered. (8) After the incident accused Umesh had absconded. (9) In the disclosure statement (Ex. P- 18), wrist watch of deceased and spade used to bury the dead body of the deceased were recovered at the instance of accused Umesh Katiya.
(10) Accused Shailendra gave the gold chain belonging to deceased Mukesh Bora to accused Kanahiya after telling him about the incident of the alleged offence.
(11) Accused Shailendra had motive to cause death of the deceased.CIRCUMSTANCE NO. 1
45. In this respect, learned trial court has believed the statement of SI Mahendra Singh Chouhan (PW-14), Naresh Pandya (PW-3), SDO (Phone) Betul S.K. Vajpayee (PW-9) and SDO (Mobile) BSNL Betul Vinay Vishwakarma (PW-18), seizure memo (Ex.P-16), letter (Ex.P- 29), call detail article 1-14 and found proved in paragraph 171 of the impugned judgment that on alleged date of the commission of the offence, the last phone call record was the call by accused Shailendra Singh to the deceased Mukesh Bora.
46. SI Mahendra Singh Chouhan (PW-14) has deposed in paragraph 10 of statement that he has seized a Nokia mobile phone from the possession of accused Shailendra on 10/12/2007 and prepared seizure memo (Ex.P-
16). In paragraph no.3 of deposition, Naresh Pandya (PW-3) has stated that police has seized a mobile phone from possession of the accused Shailendra. Nandu Patil (DW-1), he is also a witness of seizure memo 26 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 (Ex.P-16), he denied that aforesaid mobile phone has been seized from the possession of the accused Shailendra Singh. Further he denied his signature on seizure memo Ex. P-16 (C to C). Therefore, though Nandu Patil (DW-
1) did not support the statement of SI Mahendra Singh Chouhan (PW-14) but statement of SI Mahendra Singh Chouhan (PW-14) supported by Naresh Pandya (PW-3) and seizure memo (Ex.P-16). Therefore the statement of SI Mahendra Singh Chouhan (PW-14) and Naresh Pandya (PW-3) is reliable.
47. Regarding telephonic conversation between deceased Mukesh Bora and accused Shailendra Singh on 04/12/2007, in this respect SI Mahendra Singh Chouhan (PW-14) stated that on 05/01/2008 he wrote a letter (Ex.P- 40 ) to the SDO (Telephone) Betul to furnish the call details relating to phone no 9425002860 of deceased Mukesh and phone no. 9425002760 of accused Shailendra.
48. S.K. Vajpayee (PW-9) and Vinay Vishwakarma (PW-18) have stated that in respect of letter (Ex. P- 29) their subordinate JTO has provided call details (article 1 to 14) in relation to mobile no. 9425002760 and mobile no.9425002860 during the relevant period. In paragraph 5 of cross examination S.K. Vajpayee (PW-9) admitted that call details (article 1 to
14) received from mail through internet, further he admitted that call details received through mail can be tampered before taking its printout. In paragraph 2 of cross-examination Vinay Vishwakarma (PW-18) has admitted that he has not given call details (as aforesaid) to the police. In paragraph 3 of cross examination he has admitted that the call details have not been certified by any officer of his department. Further in paragraph 5 of cross examination, he has also admitted that it is possible to tamper the 27 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 soft copy of call details. In paragraph 6 of cross examination Vinay Vishwakarma (PW-18) has admitted that the print out is generally signed and sealed by the concerned officer.
49. On perusal of the case, it appears that alleged call details (article 1 to
14) are photocopies and neither signed nor certified by the concerned officer. In this respect learned counsel for the respondent has relied upon the case of State (N.C.T. of Delhi) v. Navjot Sandhu [(2005) 11 SCC 600] stating:-
"15. ... Above all, the printout pertaining to the call details exhibited by the prosecution are of such regularity and continuity that it would be legitimate to draw a presumption that the system was functional and the output was produced by the computer in regular use, whether this fact was specially deposed to by the witness or not. We are of the view that the call records are admissible and reliable and rightly made use of by the prosecution."
50. Countering the judgment relied upon by the counsel of respondent, counsel for appellant has relied upon the case of Anvar P.V. V P.K. Basheer [(2014) 10 SCC 473], it has been stated that:-
"22. The evidence relating to electronic record, as noted herein before, being a special provision, the general law on secondary evidence under Section 63 read with Section 65 of the Evidence Act shall yield to the same. Generalia specialibus non derogant, special law will always prevail over the general law. It appears, the court omitted to take note of Sections 59 and 65A dealing 28 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 with the admissibility of electronic record. Sections 63 and 65 have no application in the case of secondary evidence by way of electronic record; the same is wholly governed by Sections 65A and 65B. To that extent, the statement of law on admissibility of secondary evidence pertaining to electronic record, as stated by this court in Navjot Sandhu case (supra), does not lay down the correct legal position. It requires to be overruled and we do so. An electronic record by way of secondary evidence shall not be admitted in evidence unless the requirements under Section 65B are satisfied. Thus, in the case of CD, VCD, chip, etc., the same shall be accompanied by the certificate in terms of Section 65B obtained at the time of taking the document, without which, the secondary evidence pertaining to that electronic record, is inadmissible."
51. Therefore it is clear that principle laid down in respect of admissibility of electronic evidence in case of Navjot Sandhu (supra) case has been overruled by the Anvar P.V. case. Hence, aforesaid principle laid down in case of Navjot Sandhu (Supra) is not applicable in the respect of admissibility of electronic evidence. The same principle was followed in the case of Arjun Panditrao Potkar V Kailash Kushan Rao Gorantyal & ors. [(2020) 7 SCC 1].
52. Case in hand, the respondent admittedly has not produced any certificate in terms of section 65-B of IEA, in respect of the call details (Article 1-14), therefore, the same cannot be admitted in evidence and on the basis of aforesaid printout of call details, it is not proved that on 04/12/2007 accused Shailendra Singh called deceased Mukesh Bora 29 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 through his mobile phone and in the conversation the accused Shailendra called Mukesh to come to village Bagdona.
CIRCUMSTANCE NO 2 & 3:-
53. Saroj Bora (PW-7) in paragraph 2 of her examination in chief, stated that on 04/12/2007 at about 1:30 p.m deceased went to Bagdona by his Hero Honda motorcycle. On her questioning he replied that he is going to meet Shailendra and will return within 10 minutes but after that he did not return home. Chandra Shekhar (PW-1) in paragraph 2 of his examination- in-chief has stated that on 04/12/2007 at 06:00 p.m, Saroj Bora (PW-7) told him on mobile phone that deceased left home at 1:30 p.m and he has not returned yet. After that Chandrashekher (PW-1) searched for his brother, deceased Mukesh Bora but could not find him. On 05/12/2007 Chandrashekhar (PW-1) informed the police, where the missing person report (Ex. P-1) was written. HC Siya Sharan (PW-5) has also stated that on 05/12/2007 at 05:40 AM he wrote a missing person report (Ex. P-1) on the basis of intimation given by Chandrashekhar (PW-1).
54. There is omission in statement written under Section 161 of the CrPC (Ex.D-1) of Saroj Bora (PW-7) that 'while going Bagdona, deceased told her that he is going to meet accused Shailendra Singh', and her aforesaid statement is also not supported by Chandra Shekhar (PW-1) therefore, her aforesaid statement is not reliable but in respect of that, on 04/12/2007 at about 1:30 p.m deceased had left for village Bagdona, her statement is reliable. Statement of Chandrashekhar (PW-1) is also supported by HC Siya Sharan(PW-5) and (Ex.P-1) missing person report therefore his statement is also reliable. Hence, it is clear that on 04/12/2007 30 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 at around 2:00 p.m deceased went to village Bagdona by his Hero Honda motorcycle, thereafter, he never returned home.
55. Saroj Bora (PW-7) in paragraph 2 of her examination-in-chief has stated that while going Bagdona deceased had put on a wrist watch and a gold chain on neck, he was also carrying a mobile phone. Though it is not mentioned in the missing person report that deceased had put on a wrist watch, gold chain and was having a mobile phone but the missing person report was written on the intimation given by Chandrashekhar (PW-1) therefore, on the aforesaid ground her statement can not be disbelieved. Hence, her statement is reliable and it is clear that while going to Bagdona deceased had put on a wrist watch, a gold chain and was having a mobile phone.
56. Therefore, circumstances no. 2 and 3 are found proved that on the same day at around 2:00 p.m deceased Mukesh went to Bagdona by his Hero Honda motorcycle after that he never returned home and while going to Bagdona, deceased had put on wrist watch, a gold chain and was having a mobile phone.
CIRCUMSTANCE NO. 457. ASI Dilip Jharbade (PW-8) stated that on 09/12/2007 an intimation has been given by Rasid khan to the P/S Tawanagar that a motorcycle is laid down in burnt condition in the pit beside the main road near Dhalai tower P/S Tawanagar Distt.- Hoshangabad. In this respect a Roznamcha Sanha no. 206 has been written. He went to verify the aforesaid intimation with other Police officials on the same day. He found that a motorcycle was laid down in burnt condition. He seized the aforementioned burnt motorcycle from the pit beside the main road near Dhalai tower before 31 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 witnesses and prepared a seizure memo (Ex. P-26) on the same day. On verification, aforementioned motorcycle found to be deceased Mukesh's motorcycle. He further stated that he had intimated his senior police officers and SHO vide radio messages (Ex.P- 27 & 28 respectively) in respect of the seizure of aforementioned motorcycle.
58. ASI Dilip Jharbade (PW-8) further stated that seized motorcycle was related to offence no. 378/7 (Ex.P-32) therefore after lodging offence no. 1/7 u/s. 102 of CrPC he has given intimation to concerning P/S. In paragraph 3 of cross examination he stated that he was not able to tell the engine no. because the motorcycle was in burnt condition and was not readable. As per seizure memo (Ex.P-26) and radio message (Ex.P-27 &
28) , the chasis no of the burnt motorcycle was 07EDNF09476 but there is no legal evidence available on record that aforesaid seized burnt motorcycle was of deceased Mukesh Bora, therefore the same is not established.
59. Therefore circumstance no.4 is not found proved that on 09/12/2007 at 03:40 p.m a burnt motorcycle of the deceased was seized from the pit beside the main road near Dhalai tower P/S Tawanagar Distt.- Hoshangabad.
CIRCUMSTANCE NO. 560. SI Mahendra Singh Chouhan (PW-14) stated that on 10/12/2007 at 10:00 p.m, he took custody of accused Shailendra Singh at Police Outpost Pathakheda before Naresh Pandya (PW-3) and Nandu Patil (DW-1), he further stated that while interrogation, accused Shailendra Singh disclosed that he buried the dead body of deceased Mukesh under sand and covered with stones near Tawa river, village Rampur, Chhindwara road, in this 32 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 respect the car and the motorcycle used for the commission of alleged offence is kept at his home, a mobile phone and a spade used to bury the dead body is with accused Umesh and gold chain of deceased Mukesh is with accused Kanahiya. In this respect he prepared disclosure memo (Ex.P-
12). Naresh Pandya (PW-3) also supported his statement. In paragraph 13 of cross examination, Naresh Pandya (PW-3) stated that police called him to come to outpost at about 10:00-10:30 AM on 10/12/2007 and he reached outpost within 5-10 minutes while SI Mahendra Singh Chouhan (PW-14) in paragraph 27 of his cross examination has stated that Naresh Pandya (PW-3) and Nandu Patil (DW-1) reached outpost at 8:20 a.m. As per memorandum (Ex. P- 12) the interrogation was conducted on 10/12/2007 at 10:00 a.m.. Therefore, it is clear that some discrepancies are there in the statement of Naresh Pandya (PW-3) and SI Mahendra Singh Chouhan (PW-14) with respect to time to reach the Police Outpost. But the aforesaid discrepancies are common in nature and does not hinder the credibility of statement of witnesses.
61. SI Mahendra Singh Chouhan (PW-14) has further stated in paragraph 3 of his examination-in-chief that as per disclosure statement (Ex.P-12) of accused Shailendra Singh he went near the bridge of Tawa river, village Rampur and at the instance of accused Shailendra Singh in presence of witnesses and aid of family members of deceased, exhumed and recovered a human dead body. In this respect, he prepared a shav utkhanan Panchnama (Ex.P-13), Dastyabi Panchnama (Ex.P- 14) and Shav Baramadgi Panchnama (Ex.P-5). Naresh Pandya (PW-3) also stated that, in presence of him and Nandu Patil (DW-1) and at the instance of accused Shailendra, police exhumed the body and panchnamas (Ex.P-13, 14 & 5) 33 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 have been prepared. SI Mahendra Singh Chouhan (PW-14) stated that on 10/12/2007 at 01:45 p.m he proceeded for the identification of the dead body. Brother or deceased Chandra Shekhar (PW-1) identified that the dead body is of deceased Mukesh. In this respect, he has prepared identification panchnama (Ex.P-6). Naresh Pandya (PW-3) and Chandra Shekhar (PW-1) also stated that they had identified the dead body was of deceased Mukesh.
62. SI Mahendra Singh Chouhan (PW-14) stated that on 10/12/2007, he prepared spot map (Ex.P-7) before witnesses and the same day he seized blood stained soil and plain soil from the spot and prepared seizure memo (Ex.P-15). He further deposed that on 10/12/2007 after the recovery of dead body, he arrested accused Shailendra Singh vide arrest memo (Ex.P- 35 A). Chandra Shekhar (PW-1) in para 11 of his re-examination-in-chief stated that police prepared the spot map (Ex. P-7) from the place of the recovery of dead body. Naresh Pandya (PW-3) stated that police had seized blood stained soil and plain soil from the spot and prepared seizure memo (Ex.P-15), therefore it is clear that Chandra Shekhar (PW-1) and Naresh Pandya (PW-3) have supported the aforesaid statement of SI Mahendra Singh Chouhan (PW-14).
63. Though prosecution has not chosen to examine Nandu Patil (DW-1) and accused persons have examined him in their defence. Nandu Patil (DW-1) has stated that police has not done any proceeding in his presence and he has also denied his signature on panchnamas (Ex.P-5, P-6, P-12, P- 13, P-14, P-15, P-16, P-17 & Ex. P-35 A). In this respect the counsel of appellant has argued that Nandu Patil (DW-1) has not supported any proceeding in his presence, therefore statement of sole witness Naresh Pandya (PW-3) is not acceptable, it is further argued that there is enmity 34 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 between Naresh Pandya (PW-3) and accused Shailendra Singh with this reason the statement of Naresh Pandya (PW- 3) is also not acceptable and reliable.
64. Learned trial court in paragraph 46 of the impugned judgment has believed on the arguments of prosecution and complainant that accused Shailendra Singh lodged an FIR against Naresh Pandya (PW-3) on 14/04/2009 u/s 307 of IPC to pressurize in order to restrain him from deposing the truth in the court in the instant case and during investigation aforesaid incident was found to be false. Aforesaid argument was not rebutted by accused persons, therefore, it does not appear that Naresh Pandya (PW-3) is an interested witness.
65. Naresh Pandya (PW-3) in paragraph 19 of his cross-examination admitted that accused Shailendra Singh lodged an FIR at P/S Ranipur against him, to shoot and attempt to cause death of accused Shailendra Singh, for which he was taken in custody but accused person has not asked him that the aforesaid offence took place on which date. Therefore, it is not clear that there was enmity between accused Shailendra Singh and Naresh Pandya (PW-3) before the incident of instant case. Paragraph 19 of cross- examination of Naresh Pandya (PW-3) denied that he being friend of deceased, signed all documents prepared by police, further he also denied that accused Shailendra Singh did not disclose anything to police and accused Shailendra Singh has not exhumed any dead body. Therefore, on the basis of aforesaid facts, it does not appear that Naresh Pandya (PW-3) is stating false due to enmity with accused Shailendra Singh. Hence, his statement is reliable.
35 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/201366. Nandu Patil (DW-1) in paragraph 10 of cross-examination has admitted that at the time of proceeding accused Shailendra Singh was not seen by him. The distance between two banks of river is about 100-150 meter. In paragraph 9 of cross examination he also admitted that he was going with Sonu Singh by motorcycle at the time of preparation of panchnamas. Therefore, it clearly appears that Nandu Patil (DW-1) has indirectly admitted that he was present there when the proceeding of exhumation of dead body was taking place. Hence, statement of Nandu Patil (DW-1) is not trustworthy and on the basis of his statement, statement of SI Mahendra Singh Chouhan (PW- 14), Chandra Shekhar (PW-1) and Naresh Pandya (PW-3) cannot be disbelieved. In respect of aforesaid statement of SI Mahendra Singh Chouhan (PW-14) supported by Chandra Shekhar (PW-1) and Naresh Pandya (PW-3), there is nothing to show in their statement that they are interested to falsely implicate accused Shailendra Singh.
67. It is argued on behalf of accused Shailendra Singh that as per deadbody recovery panchnama (Ex.P-5), dead body of deceased has been recovered at the instance of Chandra Shekhar (PW-1) therefore, recovery of deadbody at the instance of accused Shailendra Singh is doubtful.
68. On perusal of statement in para 1-4 of examination-in- chief of SI Mahendra Singh Chouhan (PW-14), it appears that on the disclosure statement and at instance of accused Shailendra Singh, the dead body of deceased was recovered and after identification of dead body aforesaid recovery panchnama (Ex.P-5) was prepared. Therefore, the aforesaid argument is not acceptable.
36 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/201369. Therefore, statement of aforesaid witnesses is reliable and it appears that on the basis of disclosure statement (Ex.P-12) of accused Shailendra Singh and at his instance, dead body of deceased Mukesh was exhumed near the bridge of Tawa river, Chhindwara road, Rampur.
70. Hence in circumstance no. 5, it is found proved that on the basis of disclosure statement (Ex. P- 12) and at the instance of accused Shailendra Singh, dead body of deceased Mukesh was recovered near the bridge of Tawa river, Chhindwara road, Rampur.
CIRCUMSTANCE NO. 6 & 771. SI Mahendra Singh Chouhan (PW-14) stated that at the instance of accused Shailendra Singh, he seized a black coloured Indica car bearing registration No. MH-31-CN-5319. Aforesaid car was in running condition, there were blood stains on seat, stand, rubber, fiber plate and door (i.e. inner side) of the car. He also seized 3 seat covers from the boot of the car, from the courtyard of accused Shailendra's home and prepared seizure memo (Ex.P-23). He further stated that on 10/12/2007 at 06:25 p.m at the instance of accused Shailendra Singh, he seized Hero Honda motorcycle bearing no. MP-48-B-9716 from the front room of his house and prepared seizure memo (Ex.P-22).
72. Devendra Soni (PW-6) has stated that he has no knowledge about the car and bike though he has admitted his signature on seizure memos (Ex.P- 23 & 22). Amrit Nandwana (PW-12) has not said anything about the aforesaid seizure of car and motorcycle then prosecution has declared him hostile and cross-examined this witness in paragraph 5 of examination. He denied that police has seized a motorcycle and a black Indica car from the house of accused Shailendra Singh before him and prepared seizure memo 37 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 (Ex.P-23 & 22). Therefore it is clear that Devendra Soni (PW-6) and Amrit Nandwana (PW-12) have denied the factum of seizure of the aforesaid car and motorcycle but both of the witnesses admitted their signature on both the seizure memos.
73. SI Mahendra Singh Chouhan (PW-14) further stated that on 10/12/2007 while interrogating accused Shailendra Singh again before witnesses, accused Shailendra Singh disclosed that the baseball bat is kept at the corner of the center room at his home, he had thrown the seat covers of car on sand from the bridge of Machna River, wrist watch and mobile phone of deceased Mukesh is in possession of accused Umesh. He also disclosed that the gold chain of deceased Mukesh has given to Kanahiya Boreban by him. SI Mahendra Singh Chouhan (PW-14) prepared disclosure memo (Ex.P-21). He further said that at the instance of accused Shailendra Singh, he seized:- blood stained seat covers (i.e. 3 seat covers) from under the bridge of Machna River and prepared a seizure memo (Ex.P-25); a wooden bat from his house and prepared seizure memo (Ex.P-
24).
74. Devendra Soni (PW-6) and Amrit Nandwara (PW-12) also have stated that accused Shailendra Singh disclosed that he has kept the base ball bat at the corner of the center room, Amrit Nandwana (PW-12) further said that accused Shailendra intimated police that wrist watch and mobile phone of deceased was given to accused Umesh and the gold chain of decease was given to accused Kanahiya, in this respect police prepared disclosure memo (Ex.P-21). He further stated he is not able to recall the proceeding by police in furtherance to the black Indica car, also he stated that there were blood stains on the seat of Indica car, he had seen the 38 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 baseball bat at police station and the same was seized in front of him. He admitted his signature on disclosure and seizure memo (Ex.P-21, P-24 & Ex. P-25). In paragraph 5 of cross-examination Devendra Soni (PW-6) stated that he had reached at police outpost Pathakheda at 2:00 p.m on 10/12/2007 and at that time he put his signature on Ex.P- 22 to Ex. P- 25. He also said that the police has shown him a bat at Police Outpost.
75. Amrit Nandwana (PW-12) stated that accused Shailendra Singh produced a bat from the center room of his house before police. In this respect police prepared seizure memo (Ex.P-24). Further he did not support the prosecution case, therefore, prosecution has declared him hostile and cross examined the witness in para 5 of cross-examination, Amrit Nandwana (PW-12) has admitted that police seized a Hero Honda motorcycle and an Indica car from the house of accused Shailendra Singh and prepared seizure memo (Ex.P-22 & 23) respectively. In para 6 of cross- examination he also admitted that accused Shailendra Singh disclosed that he has thrown seat cover on sand under the bridge of Machna River, further he also admitted that at the instance and produced by accused Shailendra Singh blood stained seat covers have been seized from the aforesaid place. In paragraph 12 he admitted suggestion of accused Shailendra Singh that police was interrogating accused Shailendra Singh at his house. In paragraph 13 of cross-examination, he also admitted the suggestion that the baseball bat was kept already in accused Shailendra's home prior they reached there.
76. Counsel for the appellant Shailendra Singh argued that Devendra Soni (PW-6) has not supported prosecution case in his statement but prosecution has not declared him hostile. Therefore prosecution is bound 39 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 by his statement. He relied on Jagan M Sheshadri V State of Tamil Nadu [(2002) 9 SCC 639], in this case offence under section 13(1)(e) r/w 13(2) of the Prevention of Corruption Act, a witness being the mother in law of the appellant who had supported the explanation offered by appellant/ accused regarding receipt of Rs. 50,000/- and Rs. 40,000/- by him from her. She was Prosecution Witness and has not supported the prosecution case but prosecution has not declared this witness "hostile". In view of aforesaid fact, Hon'ble the Apex Court has observed that prosecution could not wriggle out of the statement of such a witnesses even though that witness was related to the accused.
77. In the case of Javed Masood V State of Rajasthan [AIR 2010 SC 979] Hon'ble the Apex Court has observed that witness was independent, his evidence corroborated by police witnesses and witness was not declared hostile by prosecution therefore, his evidence is binding on prosecution.
78. In this respect Mahendra Soni (PW-6) has partially supported the prosecution case but prosecution has not declared him hostile but as stated in paragraph 5 of cross-examination that at 2:00 p.m on 10/12/2007 at Police Outpost Pathakheda and at that time he put his signature on panchnamas (Ex.P-22 to Ex. P-25) while as per statement of SI Mahendra Singh Chouhan (PW-14) Ex. P-22 to Ex. P-25 panchnamas were prepared between 6:15 p.m to 8:15 p.m at the relevant places. Statement of Devendra Soni (PW-6) is not supported by any witness. Amrit Nandwana (PW-12) also stated that at the time of aforesaid proceeding Mahendra Soni (PW-6) was present, in this situation if prosecution has not declared Mahendra Soni (PW-6) hostile because of not supporting prosecution case, statement of other reliable witnesses can not be disbelieved.
40 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/201379. Statement of SI Mahendra Singh Chouhan (PW-14) is supported by Amrit Nandwana (PW-12) and also by aforesaid disclosure and seizure memos. There is no reason to disbelieve the aforementioned witnesses.
80. As per statement of senior scientist Forensic science laboratory Bhopal MP Bhaskar (PW-19) and report of Forensic science laboratory Bhopal (Ex.P-47), it appears that human blood is found on baseball bat (article D); seat covers of car (article E1-E4) recovered from the accused Shailendra Singh; whereas blood group B is found on strip of cloth (article G) and shirt, banyan, pant, underwear, towel, belt, thread and ring (article H-1 to H-7) recovered from the body of deceased.
81. Learned counsel for the complainant relied upon the judgment of Prabhu Dayal V State of Rajasthan [(2018) 8 SCC 127], in this case Hon'ble the Apex Court has observed that since blood stains were disintegrated by the time blood stains were examined by FSL, the blood group could not be determined. For the same, accused cannot be unpunished, more particularly plain blood stains were found of human origin.
82. In the case of Madhav V State of Madhya Pradesh [AIR 2021 SC 4031] the following was observed:-
" 26. In R. Shaji vs. State of Kerala, [(2013) 14 SCC 266], this court took note of almost previous decisions starting from Prabhu Babaji V State of Bombay, [AIR 1956 SC 51] and including those in Raghav Pranappa Tripathi (supra); Teja Ram (supra), Gura Singh (supra); John Pandian vs. State, [(2010) 14 SCC 129]; Sunil Clifford Daniel vs. State of Punjab [(2012) 11 SCC 205] and came to the conclusion that once the recovery is 41 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 made in pursuance of a disclosure statement made by the accused, the matching or nonmatching of blood groups loses significance.
27. Therefore, as pointed out by this court in Balwan Singh vs. State of Chhattisgarh [(2019) 7 SCC 781], there cannot be any fixed formula that the prosecution has to prove, or need not prove that the blood groups match. But the judicial conscience of the court should be satisfied both about the recovery and about the origin of the human blood."
83. Case in hand, human origin blood found on baseball bat (article D); seat covers of car (article E1-E4) recovered from the accused Shailendra Singh; strip of cloth (article G) and shirt, banyan, pant, underwear, towel, belt, thread and ring (article H-1 to H-7) recovered from the body of deceased and blood group B is found on baseball bat (article D) and seat covers (article E1-E4). Accused Shailendra Singh has not given any explanation about human blood found on those articles which were seized from him. Therefore, it is clear that car, baseball bat, seat covers of car which were recovered from accused Shailendra Singh were used in the commission of the alleged offence but it does not establish that a motorcycle seized from accused Shailendra Singh was used in the commission of the offence.
84. Therefore in circumstances no. 6 & 7 it is proved that on the basis of disclosure statement (Ex.P-12) and at the instance of accused Shailendra Singh, a car used in commission of crime is recovered from his house and on the basis of second disclosure statement (Ex.P-21) of accused Shailendra Singh- human blood stained baseball bat and seat cover of car, used in the commission of the alleged offence were recovered.
42 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 CIRCUMSTANCE NO. 885. There is no evidence available on record which indicates that appellant/ accused Umesh had absconded just after the alleged incident. SI Mahendra Singh Chouhan (PW-14) has not stated anything about absconding of accused Umesh. SI Deepak Parashar (PW-13) has taken custody of accused Umesh firstly but he has also not stated that accused Umesh had absconded after the incident. As per statement of Deepak Parashar (PW-13) and arrest memo (Ex.P-35), it appears that accused Umesh Katiya was arrested on 29/05/2008 i.e. after 6 months of the incident but on the basis of arrest after 6 months, it can not be presumed that accused had absconded. Therefore, in circumstance no. 8 it is not found proved that after incident, accused Umesh had absconded.
CIRCUMSTANCE NO. 986. Deepak Parashar (PW-12) stated that on 29/05/2008 he arrested accused Umesh Katiya vide arrest memo (Ex.P-35) and at 12:25 p.m. He interrogated accused Umesh before witnesses Brij Kishore and Ramesh at that time accused Umesh intimated about wrist watch and mobile phone of deceased Mukesh and spade (i.e. used to bury the dead body) vide memorandum (Ex.P-34). He further stated that on 30/05/2008 at 8:00 AM again interrogated accused Umesh Katiya before witnesses Indraj and Banwari (PW-4) at that time accused Umesh disclosed that he threw mobile phone in Sarani forest, he kept wrist watch in a polythene bag, placed in between bricks near water tank, in the courtyard of his house in village Kailash Nagar and the spade is kept on the roof over the back door of house. He prepared disclosure memo (Ex. P-18).
43 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/201387. Deepak Parashar (PW-13) stated that on 30/05/2008 at 9:00 a.m. at the instance of accused and produced by him, he seized wrist watch and spade from the house of accused Umesh and prepared seizure memo (Ex.P-
19) but mobile phone of deceased could not be found. He prepared search memo (Ex.P-20).
88. Banwari (PW-4) also supported the statement of SI Deepak Parashar (PW-13) in his statement but there is no evidence available on record that aforesaid spade used to exhume the body of deceased and the wrist watch was of deceased Mukesh Bora. Hence, it is not established that seized wrist watch and spade recovered at the instance of accused Umesh Katiya was deceased Mukesh's and spade used to bury the dead body respectively.
89. Therefore in circumstance no 9 it is not found proved that in the disclose statement (Ex. P-18) a wrist watch of deceased and spade used to bury the dead body of the deceased were recovered at the instance of Umesh Katiya.
CIRCUMSTANCE NO. 1090. SI Mahendra Singh Chouhan (PW-14) stated in para 20 of examination-in-chief that on 12/12/2007 at the time of interrogation accused Kanahiya disclosed that he kept a gold chain in pocket of a full pant at his house, he prepared disclosure memo (Ex.P-8) on the same day accused Kanahiya produced a gold chain from the pocket of his pant which he seized vide seizure memo (Ex.P-9) and after arresting the accused he prepared arrest memo (Ex.P-38). Chandrakant (PW-2) also stated that at the time of interrogation by police accused Kanahiya disclosed that the gold chain is in the pocket of a full pant at his home. Further he stated that at the instance of accused and produced by him from the pocket of 44 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 aforesaid pant and police prepared disclosure memo (Ex.P-8) and seizure memo (Ex.P-9). Witness also stated that at the time of proceeding witness Mangilal was also present.
91. Security Officer Ramji Mishra (DW-2) has stated that accused Kanahiya was working at Bridgestone India pvt. Ltd. (hereinafter referred to as factory) Pithampur Distt. Dhar as technician. This witness was also working as Security Officer during 4/12/2007-9/12/2007 in the aforesaid factory, he further stated that police arrested accused Kanahiya on 9/12/2007 at 12:00AM. At the time of his arrest, the witness was deputed as guard at the gate. In paragraph 6 he admitted that a record is made of every outsider who comes in factory, their purpose for visit and the person to whom the meeting supposed to be recorded and a gate pass is issued for the same in the security office near gate, but accused Kanahiya has not produced any identity card or other documents that at the relevant time he was working as technician at the aforementioned factory, Ramji Mishra (DW-2) has also not furnished any documents that he was working at relevant period at the aforementioned factory. Therefore, the statement of Ramji Mishra (DW-2) is not reliable.
92. Though SI Mahendra Singh Chouhan (PW-14) has stated that a gold chain was recovered on the disclosure statement and at the instance of accused Kanahiya but he has not stated that at the time of disclosure statement accused Kanahiya was in his custody. Therefore, it does not appear that at the time of disclosure statement accused Kanahiya was in custody of the police. Hence this disclosure memo (Ex. P- 8) loses its importance.
45 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/201393. Apart from the above discussion, it appears that on 10/12/2007 at 10:00 a.m. accused Shailendra Singh disclosed in his statement (Ex.P-
12) that he has given a gold chain to accused Kanahiya to keep it and statement of SI Mahendra Singh Chouhan (PW-14) and Chandrakant (PW-
2), it appears that aforesaid gold chain is recovered from possession of accused Kanahiya.
94. Therefore it is clear that on the basis of disclosure statement of accused Shailendra Singh, a gold chain is recovered from the possession of accused Kanahiya.
95. As per prosecution story Devendra Soni (PW-6) had weighed the seized gold chain but he has not said anything about the weight of the aforementioned chain. Chandrakant (PW-2) deposed that gold chain was weighed by a goldsmith and prepared a weight panchnama (Ex.P-11). Amrit Nandwana (PW-12) has not stated anything in his examination-in- chief after being declared hostile by the prosecution in paragraph 7 of cross-examination, he admitted suggestion of prosecution that Devendra Soni (PW-6) has weighed the gold chain. Weight panchnama (Ex.P-11) was prepared but Devendra Soni (PW-6) has not said anything about the weight of gold chain. Apart from that prosecution has not declared him hostile, therefore aforesaid statement Chandrakant (PW-2) and Amrit Nandwana (PW-12) is not reliable.
96. Saroj Bora (PW-7) stated in para 3 of her examination-in-chief that the police carried out identification at a place in forest of forest department at that time she identified a gold chain to be of deceased Mukesh. At the time of identification panchnama (Ex.P-10) was prepared. Chandrakant (PW-2) stated that councillor (parshad) Mukesh called him at police 46 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 chowki and at that place Saroj Bora (PW-7) identified a gold chain to be of deceased Mukesh but police has not examined alleged councillor Mukesh. Apart from that Saroj Bora (PW-7) stated that identification parade was held in forest of forest department while Chandrakant (PW-2) stated that identification parade was held at police chowki. As per Saroj Bora (PW-7) it also appears that identification parade was carried out by police while according to the statement of Chandrakant (PW 2) identification parade was held out by Councillor Mukesh. Therefore with regards to place of identification and the person who held the identification, the statement of both the witness being contradictory is not reliable and it does not appear that seized gold chain was related to deceased Mukesh.
97. There is no evidence available on record that accused Shailendra Singh gave the gold chain to accused Kanahiya after telling him about the incident of alleged offence. There is also no evidence available on record that accused Kanahiya had kept the gold chain with him despite knowing the factum that the gold chain is related to deceased Mukesh Bora as well as deceased Mukesh Bora has been murdered.
98. Therefore in circumstance no. 10 it can not be concluded that accused Shailendra Singh gave the gold chain belonging to deceased Mukesh Bora to accused Kanahiya after telling him about the incident of alleged offence.
CIRCUMSTANCE NO. 1199. Saroj Bora (PW-7) stated that deceased used to do contractual work. Accused Shailendra Singh had a contract of construction of Bagdona College road which was cancelled later and the same was given to deceased Mukesh. This being the reason, accused Shailendra Singh used to 47 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 bother deceased Mukesh. Further she said that accused Shailendra Singh used to bother deceased Mukesh due to transaction of money between deceased and Chikku (i.e. resident at Jaajalpur). Though there is omission of her aforesaid statement (Ex.D-1) written under section 161 of CrPC but it is mentioned there (Ex. D- 1) that deceased had got a contract for construction work of college road but on the other hand accused Shailendra wanted to take that contract. It is also mentioned in (Ex.D-1) statement that Chikku had taken loan on interest basis from deceased Mukesh, which he has not returned. Chikku is friend of accused Shailendra Singh. Therefore aforementioned omission is common in nature.
100. Chandra Shekhar (PW-1) stated that accused Shailendra was given a contract from municipality and later it was cancelled and was given to deceased Mukesh. Due to this there was a dispute between deceased Mukesh and accused Shailendra Singh. In paragraph 6 of his cross- examination, he admitted that deceased was not a registered contractor of municipality. Further he admitted the suggestion of accused Shailendra Singh that Chikku had taken loan from deceased Mukesh. Aforementioned loan was to be repaid to deceased, due to this there was dispute between deceased Mukesh and Chikku. In this paragraph he stated that he has no knowledge as to why deceased got that contract from the municipality and for whom he used to work. Though as per aforementioned statement of Chandra Shekhar (PW-1) it appears that deceased was not a registered contractor from Municipality and due to loan transaction there was dispute between deceased Mukesh and Chikku.
101. On perusal of para 6 of cross-examination of Nandu Patil (DW-1), it appears that Nandu Patil (DW-1) did not use to take contracts from 48 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 municipality because he was a councillor (parshad) Radha krishna, ward no 2 of Municipality Sarani. Paragraph 3 in examination-in-chief, the witness stated that he does contractual work and he was having a contract at Rampur. In paragraph 5 of cross-examination he stated that he has been doing contractual work for 5 years. In paragraph 6 of cross-examination Nandu Patil (DW-1) admitted that at the time of this incident his two contractual work were done and none of the contract was in his name but he was working the aforementioned work as petty contractor. In para 5 of cross-examination he has also admitted that accused Shailendra Singh also performs contractual work, therefore it can not be ruled out that deceased used to work as petty contractor. In this situation, statement of Saroj Bora (PW-7) that deceased used to do contractual work. Accused Shailendra Singh had a contract of construction of Bagdona College road which was cancelled later and the same was given to deceased Mukesh, this being the reason, accused Shailendra Singh used to bother deceased Mukesh, this statement is supported by Chandrashekhar (PW-1) as well. Therefore, statement of Saroj Bora (PW-7) and Chandra Shekhar (PW-1) is reliable and trustworthy and it appears that accused Shailendra Singh had a motive to cause death of deceased Mukesh.
102. In the view of aforesaid discussion, the circumstances are found proved that on 04/12/2007 at around 2:00 p.m deceased Mukesh went to Bagdona village on his Hero Honda motorcycle, thereafter he never returned home, while going to village Bagdona deceased had put on wrist watch, gold chain and was having a mobile phone. It is also found proved that on the disclosure statement (Ex. P-12) at the instance of accused Shailendra Singh it is also proved that dead body of deceased Mukesh Bora 49 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 was recovered near the bridge of Tava river Chindwara Road Rampur and a car used in commission of crime is recovered from his house and on the basis of second disclosure statement (Ex.P-21) and at the instance of accused Shailendra Singh- human blood stained baseball bat and seat covers of car, used in the commission of alleged offence were recovered. Accused Shailendra Singh had motive to cause death of the deceased. The circumstances are complete and conclusive in nature, therefore it appears that accused Shailendra Singh is guilty of the offence. In this regard aforementioned case laws cited on behalf of accused Shailendra Singh do not help him in the case.
103. On the basis of aforesaid discussion, in our view it is proved beyond reasonable doubt that accused Shailendra Singh has caused death of deceased Mukesh Bora with intention of causing death and bury the dead body has caused disappearance of evidence of the aforementioned offence. Therefore, offence u/s 302 and 201 of IPC has been proved beyond reasonable doubt against accused Shailendra Singh.
104. Offence u/s 464 and 435 of IPC, chain of circumstances is not complete against accused Shailendra Singh. Chain of circumstances of alleged offence against accused Umesh Katiya and Kanahiya Boreban is also not complete and exclusive. The trial court has committed error to convict and sentence accused Umesh u/s 201, 302 r/w 34 of IPC and accused Kanahiya u/s 201 of IPC. Similarly trial court has committed error to convict accused Shailendra Singh for the offence u/s 435, 364 of IPC.
105. Therefore, CRA no. 2402/13 filed by appellant/ accused Umesh Katiya and CRA no. 2444/13 filed by accused Kanahiya Boreban are allowed. Order of conviction and sentence passed by trial court dated 50 CRA No.2402/2013 CRA No.2441/2013 CRA No.2444/2013 10/09/2013 against accused Umesh and Kanahiya is hereby set aside. Accused Umesh and Kanahiya are acquitted from the said charges. Accused Umesh and Kanahiya are on bail hence, their bail bond is hereby discharged.
106. CRA no. 2441/13 filed by appellant/ accused Shailendra Singh is partly allowed. Order of conviction and sentence passed by trial court dated 10/09/2013 against him under section 435, 364 of IPC is set aside. He is acquitted from the aforementioned charges. We are, therefore, inclined to uphold the order of conviction and sentence u/s 201 passed by trial court and alter the conviction and sentence of the appellant- Shailendra Singh from Section 302 r/w 34 to Section 302 of the IPC. Accused Shailendra Singh is in jail.
(SUJOY PAUL ) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
RC/ MISHRA
ARVIND KUMAR MISHRA
2022.07.08 16:34:47 +05'30'