Madhya Pradesh High Court
Bunty Alias Shailendra Alias Guddu vs The State Of Madhya Pradesh on 4 September, 2024
Author: G.S. Ahluwalia
Bench: G. S. Ahluwalia, Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:44012
1 Cr.A. No.778/2014
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 04th OF SEPTEMBER, 2024
CRIMINAL APPEAL No. 778 of 2014
BUNTY ALIAS SHAILENDRA ALIAS GUDDU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
None for the appellant.
Shri Akshay Namdeo - Government Advocate for the respondent / State.
Reserved on : 22/08/2024
Pronounced on : 04/09/2024
JUDGMENT
Per G.S. Ahluwalia J.
This Criminal Appeal under Section 374(2) of Cr.P.C. has been filed against the Judgment and Sentence dated 27.1.2014 passed by 1 st Addl. Sessions Judge, Katni in Sessions Trial No.42/2008 by which the appellant Bunty @ Shailendra @ Guddu has been convicted and sentenced for the following offences :
S.No. Under Section Sentence
1. 120B of IPC 10 years R.I. and fine of Rs. 1,000/- in default
6 months R.I.
2. 364 of IPC 10 years R.I. and fine of Rs. 1,000/- in default
6 months R.I.
3. 302 of IPC Life Imprisonment and fine of Rs. 1,000/- in
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 04-09-2024
19:10:32
NEUTRAL CITATION NO. 2024:MPHC-JBP:44012
2 Cr.A. No.778/2014
default 6 months R.I.
All the Sentences shall run concurrently.
2. It is not out of place to mention here that Sagar Singh was abducted on 17-11-2007 and his dead body was recovered on 27-11-2007, on the memorandum made by co-accused Sunil Vishwakarma. Co-accused Sunil Tiwari, Dipak Tiwari, Mukesh Tiwari, Sunil Vishwakarma, Rakesh Choudhary, Shrichand Kori, Dharmendra and Bhawanikant Dubey were tried in S.T. No. 42/2008 and by judgment and sentence dated 13-10-2009 passed by 2nd Addl. Judge to the Court of Addl. Sessions Judge, Katni, Dharmendra was acquitted whereas Sunil Tiwari, Dipak Tiwari, Mukesh Tiwari, Sunil Vishwakarma, Rakesh Choudhary, Shrichand Kori, and Bhawanikant Dubey were convicted. The Appellant Bunty @ Shailendra @ Guddu was arrested on 27-11-2009 and accordingly, a supplementary charge sheet was filed.
3. Sunil Tiwari and Dipak Tiwari filed Cr.A. No.2025 of 2009, Mukesh Tiwari filed Cr.A. No.2050 of 2009, Bhawani Kant Dubey filed Cr.A. No.285/2010, Rakesh Choudhary and Sunil Vishwakarma filed Cr.A. No.2373/2009 and Shrichand Kori filed Cr.A. No.2155 of 2009. Shrichand Kori, Rakesh Choudhary, Bhawanikant Dubey and Sunil Vishwakarma have already withdrawn their appeals. Accordingly, Cr.A. No.2025/2009 filed by Sunil Tiwari and Dipak Tiwari and Cr.A. No.2050 of 2009 filed by Mukesh Tiwari were also heard analogously with this Criminal Appeal.
4. Since, Appellant Bunty @ Shailendra @ Guddu was tried separately and evidence was recorded separately therefore, in the light of judgment passed by Supreme Court in the case of A.T. Mydeen and anr. Vs. The Assistant Commissioner, Customs Department in Criminal Appeal No.1306/2021 on 29-10-2021, the appeal is being decided by a Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 3 Cr.A. No.778/2014 separate judgment.
5. According to the prosecution story, the complainant Sonu Ben, lodged an FIR on 17-11-2007, alleging that at about 9:00 A.M., he was sitting with Sagar Singh and Gaurav Singh and was having a cup of Tea in Gupta Hotel situated in Shivhare Complex. At that time, one black coloured Bolero Jeep bearing registration no. MP 21 E 0855 which was being driven by Shrichand Kori, came there and stopped ahead of Gupta Hotel. Mukesh Tiwari, Bhawanikant Dubey, Rakesh Choudhary, Sunil Vishwakarma deboarded the jeep. Mukesh Tiwari caught hold of collar of Sagar Singh and scolded that he is showing off too much and pointed a country made pistol on his temporal region. Bhawani also took out a country made pistol and pointed towards the abdominal region of Sagar Singh whereas Rakesh Choudhary pointed a knife towards Sagar Singh. Sunil Vishwakarma forcibly made Sagar Singh to sit in Bolero Jeep and it was alleged that the accused persons abducted Sagar Singh and went towards N.K.J. The FIR for offence under Section 365, 368, 34 of IPC was registered.
6. C.L. Patel, Sub-Inspector went to spot along with complainant Sonu Ben. After 10-15 minutes, Town Inspector also reached there. Spot map was prepared on the instructions of the witnesses. The statements of witnesses were recorded. On 21-11-2007, Shrichand Kori was arrested along with Bolero Jeep bearing registration No. MP 21 E 0855. On 27-11- 2007, an information was received that Rakesh Choudhary has been arrested by Umaria Police Station accordingly he was brought to Katni. On 27-11-2007, Sunil Vishwakarma was also arrested and on his disclosure, the dead body of Sagar Singh was recovered. The dead body was got identified from his father. The photographs of the dead body were taken. The blood stained earth as well as plain earth, three pieces of rope, Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 4 Cr.A. No.778/2014 one blood stained Baniyan were seized. The dead body was sent for post mortem. On 3-12-07 Rakesh Choudhary was arrested and on 8-12-2007 the appellant Mukesh Tiwari and Bhawani Kant Dubey were arrested. Deepak Tiwari was arrested on 6-1-2008. The D.N.A. test of the dead body was got done. The seized articles were sent for forensic examination. The police after completing the investigation filed charge sheet for offence under Sections 365, 368, 364, 302, 201, 120B, 34 of IPC against Sunil Tiwari, Dipak Tiwari, Mukesh Tiwari, Sunil Vishwakarma, Rakesh Choudhary, Shrichand Kori, Dharmendra and Bhawanikant Dubey whereas the investigation against appellant Bunty @ Shailendra @ Guddu, who was absconding, was kept pending under Section 173(8) of Cr.P.C.
7. As already pointed out the Appellant was arrested on 27-11-2009. Belt and purse allegedly belonging to the deceased Sagar Singh were seized from the possession of Appellant. Test Identification Parade of Appellant was conducted. Police after completing the investigation filed charge sheet under Section 365, 368, 364, 302, 201, 120B/34 of IPC and under Section 25 and 27 of Arms Act.
8. The Trial Court by order dated 6-2-2012 framed charges under Sections 120B, 364, 365/120B, 302/120B and 201/120B of IPC.
9. The Appellant abjured his guilt and pleaded not guilty.
10. The prosecution examined Gaurav Singh (P.W.1), Thakur Guman Singh (P.W.2), Sonu Ben (P.W.3), Mukesh Mishra (P.W.4), C.L. Patel (P.W.5), R.K. Tiwari (P.W.6), Awadhesh Tiwari (P.W.7) Shivcharan Chakravarti (P.W.8), Dr. Suresh Jain (P.W.9), Vinod Singh Baghel (P.W.10), Roopchand Yadav (P.W.11), Sumit Daniel (P.W.12), Ajay Singh (P.W.13), B.D. Dwivedi (P.W.14), Ajay Tiwari (P.W.15), S.K. Jharia (P.W.16) and Sardar Singh (P.W.17).
11. The Appellant did not examine any witness in his defence.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 5 Cr.A. No.778/2014
12. The Trial Court, by impugned Judgment and Sentence has convicted and sentenced the Appellant for the above mentioned offences.
13. In the present case, the Counsel for the Appellant did not appear, therefore, this Court by order dated 22-11-2018, appointed amicus curiae. Thereafter, by order dated 21-3-2022, another amicus curiae was appointed as earlier amicus curiae did not appear. However, on 22-8-2024, when this case was taken up for final hearing, even the amicus curiae did not appear, therefore, in the light of Judgment passed by Supreme Court in the case of Suryabaksh Singh Vs. State of U.P. reported in 2014(14) SCC 222, this Court itself went through the record and heard the learned Counsel for the State.
14. Considered the submissions made by Counsel for State and perused the record.
15. As per the prosecution story, on 17-11-2007 the deceased Sagar Singh was abducted by Mukesh Tiwari, Bhawani Kant Dubey, Sunil Vishwakarma, Rakesh Choudhary in a Bolero Jeep, whereas Shrichand Kori was the driver of Bolero Jeep. The dead body of Sagar Singh was recovered on 27-11-2007 on the information given by Sunil Vishwakarma and thereafter the other accused persons were arrested and incriminating articles were seized from them.
16. Sonu Sen (P.W.3) had lodged the FIR, Ex. P5(c) on 17-11-2007, alleging that at about 9:00 A.M., he was sitting with Sagar Singh and Gaurav Singh and was having a cup of Tea in Gupta Hotel situated in Shivhare Complex. At that time, one black coloured Bolero Jeep bearing registration no. MP 21 E 0855 which was being driven by Shrichand Kori, came there and stopped ahead of Gupta Hotel. Mukesh Tiwari, Bhawanikant Dubey, Rakesh Choudhary, Sunil Vishwakarma deboarded the jeep. Mukesh Tiwari caught hold of collar of Sagar Singh and scolded Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 6 Cr.A. No.778/2014 that he is showing off too much and pointed a country made pistol on his temporal region. Bhawani also took out a country made pistol and pointed towards the abdominal region of Sagar Singh whereas Rakesh Choudhary pointed a knife towards Sagar Singh. Sunil Vishwakarma forcibly made Sagar Singh to sit in Bolero Jeep and it was alleged that the accused persons abducted Sagar Singh and went towards N.K.J. The Police Station Katni Distt. Katni registered FIR No.853/2007, Ex. P.5(c) for offence under Sections 365, 368, 34 of IPC. Spot map, Ex. 6(c) was prepared.
17. Thereafter, it appears that on the memorandum of co-accused Sunil Vishwakarma, dead body of Sagar Singh was recovered on 27-11-2007 and merg under Section 174 of Cr.P.C. was recorded, Ex. P.10(c). Since it was already night, therefore, the police party remained on the spot for the whole night. Blood stained earth, plain earth, three pieces of rope and light blue baniyan were seized from the spot vide seizure memo Ex. P.8(c). The recovery of dead body was made on 28-11-2007, Ex. P.9(c). Naksha Panchnama Ex. P.3(c) was prepared. Requisition for post mortem Ex. P.11(c) was sent. Spot map where the dead body was found was prepared on 28-11-2007, Ex. P.12(c). The articles which were seized from spot and from other co-accused persons were got identified from Guman Singh (P.W.2) vide identification memo Ex. P. 14(c). Post mortem report, is Ex. P.16(c).
18. As already pointed out, the appellant was initially absconding and was ultimately arrested on 27-11-2009 vide arrest memo Ex P.20. His memorandum, Ex. P.18 was recorded on 27-11-2009. On 27-11-2009, One purse containing the visiting card of Guman Singh and belt, allegedly belonging to the deceased, were seized from his house vide seizure memo Ex. P.19. The belt was got identified by holding identification parade vide Ex P.21. Identification Parade of the Appellant was conducted and he was Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 7 Cr.A. No.778/2014 identified by Gaurav Singh (P.W.1) vide identification memo Ex P.22.
19. Thus, the evidence which has been led by prosecution against the Appellant can be summarized as under :
(a) The appellant was amongst the co-accused persons who abducted the deceased Sagar Singh on 17-11-2007. The allegations are that when the jeep did not start, then the appellant was one of the person who pushed the jeep;
(b) The dead body of Sagar Singh was recovered on 27-11-2007 and his death was homicidal in nature;
(c) The appellant was absconding and could be arrested on 27-11- 2009;
(d) On the memorandum of Appellant, one belt and purse containing the visiting card of Guman Singh (P.W.2) were seized from his house;
(e) The appellant was identified by Gaurav Singh (P.W.1) ;
(f) Belt and purse were identified by Guman Singh (P.W.2) Whether the Appellant Bunty @ Shailendra @ Guddu was involved in abduction of Sagar Singh?
20. At the cost of repetition, it is once again made clear that evidence led by prosecution in the present Trial shall be considered and the evidence which was led in the trial of co-accused persons shall not be considered.
21. As already pointed out, Sonu Ben (P.W.3) had lodged the FIR, Ex. P.5(c), clearly mentioning the names of 5 persons only and Appellant Bunty @ Shailendra @ Guddu was not named. There was no allegation that after the abductee Sagar Singh was forced to sit in the bolero jeep, the jeep did not start, therefore, accused persons had pushed the jeep.
22. Gaurav Singh (P.W.1) has stated that the appellant Bunty @ Shailendra @ Guddu is known to him. On 17-11-2007 at about 9-9:15 Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 8 Cr.A. No.778/2014 A.M., he was sitting in Gupta Hotel along with Sagar Singh, Roopchand Yadav, Sonu Ben and Amit Yadav for having a cup of tea. One bolero jeep came and 4 persons, namely Mukesh Tiwari, Bhawanikant Dubey, and two persons deboarded the jeep. Mukesh pointed his country made pistol towards temporal region of Sagar Singh, Bhawani was having sword, and other two persons were having bomb. They forcibly made the abductee Sagar Singh to sit in the jeep. When the jeep did not start, then Bhawani Dubey, the appellant Shailendra @ Guddu and one another pushed the jeep as a result the jeep started. Thereafter, they went towards N.K.J. In cross- examination, he stated that although he had informed the police that the jeep did not start and it was pushed by Bhawanikant Dubey, the appellant Shailendra Tiwari and one other, but could not explain as to why the said fact was not mentioned in his police statement, Ex. D.1(c). Thus, it is clear that there is a material improvement in the Court evidence of Gaurav Singh (P.W.1) to the effect that the Appellant Shailendra had pushed the jeep, thereby giving an impression that the Appellant was also along with other 5 accused persons who had abducted Sagar Singh. Thus, there is a material omission and contradiction with regard to the presence and role played by appellant Bunty @ Shailendra @ Guddu. The Supreme Court in the case of Baldev Singh Vs. State of Punjab reported in (2014) 12 SCC 473 has held as under :
27. We may now consider the submission of Mr Sharan that there were improvements in the deposition of PW 3 over his statements recorded during the investigation under Section 161 CrPC. The Explanation under Section 162 CrPC provides that an omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 CrPC may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether any omission amounts to a contradiction in the particular Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 9 Cr.A. No.778/2014 context shall be a question of fact. Thus, unless the omission in the statement recorded under Section 161 CrPC of a witness is significant and relevant having regard to the context in which the omission occurs, it will not amount to a contradiction to the evidence of the witness recorded in court.
22.1 The Supreme Court in the case of Shyamal Ghosh Vs. State of W.B. reported in (2012)7 SCC 646 has held as under :
69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.
70. In terms of the Explanation to Section 162 CrPC which deals with an omission to state a fact or circumstance in the statement referred to in sub-section (1), such omission may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission occurs and whether there is any omission which amounts to contradiction in particular context shall be a question of fact. A bare reading of this Explanation reveals that if a significant omission is made in a statement of a witness under Section 161 CrPC, the same may amount to contradiction and the question whether it so amounts is a question of fact in each case. (Sunil Kumar Sambhudayal Gupta v. State of Maharashtra and Subhash v. State of Haryana.)
71. The basic element which is unambiguously clear from the Explanation to Section 162 CrPC is use of the expression "may". To put it aptly, it is not every omission or discrepancy that may amount to material contradiction so as to give the accused any advantage. If the legislative intent was to the contra, then the legislature would have used the expression "shall" in place of the word "may". The Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 10 Cr.A. No.778/2014 word "may" introduces an element of discretion which has to be exercised by the court of competent jurisdiction in accordance with law. Furthermore, whether such omission, variation or discrepancy is a material contradiction or not is again a question of fact which is to be determined with reference to the facts of a given case. The concept of contradiction in evidence under criminal jurisprudence, thus, cannot be stated in any absolute terms and has to be construed liberally so as to leave desirable discretion with the court to determine whether it is a contradiction or material contradiction which renders the entire evidence of the witness untrustworthy and affects the case of the prosecution materially.
23. As already pointed out, in FIR, Ex P.5(c), only five persons were specifically named and there was no mention of presence of sixth person.
Furthermore, there was no mention in the FIR, Ex. P5(c), that after Sagar Singh was forcibly made to sit in the jeep, then the jeep did not start, therefore, the jeep was also pushed by appellant Bunty @ Shailendra @ Guddu. Further, Gaurav Singh (P.W.1) has stated that appellant Bunty @ Shailendra was known to him. If the appellant Bunty @ Shailendra @ Guddu was already known to this witness, then non-mentioning of his name in his police statement, Ex. D.1(c) assumes importance. Gaurav Singh (P.W.1) did not mention in his police statement, Ex. D.1(c), that the appellant had pushed the jeep. Under these circumstances, the absence of allegation of pushing the jeep by appellant Bunty @ Shailendra @ Guddu in police statement Ex. D.1(c) amounts to material omission and contradiction. Thus, the evidence of Gaurav Singh (P.W.1) with regard to the presence of Appellant Bunty @ Shailendra @ Guddu at the time of abduction of Sagar Singh and pushing the jeep when it did not start, cannot be relied upon, and hence it is disbelieved.
24. There is another aspect of the matter which cannot be lost sight of. Gaurav Singh (P.W.1) has stated that the Appellant Bunty @ Shailendra @ Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 11 Cr.A. No.778/2014 Guddu is known to him, but the police conducted the Test Identification Parade of the Appellant Bunty @ Shailendra @ Guddu. If Gaurav Singh (P.W.1) was already knowing the appellant, then why the Test Identification Parade of the Appellant was conducted by the Police? Further, Gaurav Singh (P.W.1) has not stated anything about Test Identification Parade in his Court Evidence. Thus, it is clear that the evidence of Gaurav (P.W.1) is not reliable and hence, it is disbelieved.
25. Sonu Ben (P.W.3) has stated that the Appellant Bunty @ Shailendra @ Guddu is known to him. After the abductee Sagar Singh was forcibly made to sit in the bolero jeep, then the jeep did not start. Jeep was pushed by accused persons, but could not state as to whether the Appellant Bunty @ Shailendra @ Guddu was amongst the accused persons who had pushed the jeep or not? In cross examination, he could not explain as to why the fact of pushing jeep by accused persons is not mentioned in FIR Ex. P.5(c). Thus, not only the allegation that the jeep did not start therefore, it was pushed by the accused persons was a material omission and contradiction as it was not mentioned in FIR Ex. P.5(c) but even then he has not named the Appellant Bunty @ Shailendra @ Guddu as an accused who had pushed the jeep.
26. C.L. Patel (P.W.5) is the scriber of FIR, Ex. P.5(c) and in his cross examination, it was admitted that Sonu Ben had not disclosed in the FIR that "the jeep did not start and it was thereafter pushed for getting start".
27. Vinod Singh Baghel (P.W. 10) has admitted that none of the witness except Roopchand Yadav had stated that "the jeep did not start therefore it was pushed by the accused persons", but claimed that this statement was given by only Roopchand Yadav.
28. Roopchand Yadav (P.W.11) has turned hostile. Therefore, it is clear that there is no cogent and reliable evidence to prove that the Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 12 Cr.A. No.778/2014 appellant Bunty @ Shailendra @ Guddu was involved in abduction of Sagar Singh.
Identification of Appellant Bunty @ Shailendra @ Guddu by Gaurav Singh in Test Identification Parade
29. Ajay Tiwari (P.W.15) is the Naib Tahsildar who conducted the Test Identification Parade of Appellant Bunty @ Shailendra @ Guddu. He stated that the Appellant Bunty @ Shailendra @ Guddu was identified by Gaurav Singh (P.W.1). The Test Identification Parade, Ex. P.22 was conducted by him in the meeting hall of Police Station Kotwali on 15-2- 2010. As already pointed out, Gaurav Singh (P.W.1) has not stated that he had identified the Appellant Bunty @ Shailendra @ Guddu in the Test Identification Parade, therefore no importance can be given to the evidence of Ajay Tiwari (P.W.15). Therefore, the reliability of the Test Identification Parade, Ex. P.22 which was conducted in the police station Kotwali, Distt. Katni is not being considered. Even otherwise, the identification of an accused during investigation is not a substantive piece of evidence and at the most, it can be used for corroboration purposes. Therefore, in absence of any evidence by Gaurav Singh (P.W.1) with regard to identification of appellant by him in Test Identification Parade, Ex. P.22, it is held that the Test Identification Parade, Ex. P.22 is of no consequence to find out the guilt of the Appellant Bunty @ Shailendra @ Guddu.
Seizure of Purse and Belt from the Appellant
30. Sumit Daniel (P.W.12) is the seizure witness of purse and belt. He has stated that memorandum of the appellant, Ex. P. 18 was recorded. The purse and belt were taken out by the appellant from his house, which were seized vide seizure memo Ex. P.19. The appellant was arrested vide arrest memo Ex. P.20. In cross-examination, this witness has admitted that Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 13 Cr.A. No.778/2014 similar purse and belt are available in the market. This witness was unable to say that from which place the purse and belt were taken out by the Appellant. It was also stated by him that there was nobody in the house of appellant and the house was open. Visiting Cards are meant to be distributed. Thus, it is clear that not only the house of the appellant was open, but even the witness could not see that from where the purse and belt was taken out by the appellant. Although it was alleged that purse was also containing the visiting card of Guman Singh, but the visiting card was not seized. Since, the purse and belt were not taken out by the appellant, in the presence of this witness, and the house was open and purse and belt of similar nature are easily available in the market, therefore, it is held that not much importance can be given to the seizure of purse and belt.
31. Ajay Singh (P.W.13) is the police personal who had recorded the memorandum of the appellant. He stated that on the basis of disclosure statement, Ex. P 18, one purse and belt of the deceased were seized from the possession of appellant. However, in cross-examination, he admitted that he does not recollect, that by which vehicle they went to the house of appellant. He was also unable to disclose as to whether the house of the appellant was pacca house or kachha house. The appellant had taken out the purse and belt from the box but was unable to state as to whether box was open or locked. It was further stated by this witness that when the appellant was left in the room, then he had taken out the articles. He further admitted that he had not seen the box which is mentioned in the seizure memo Ex. P.19. He further admitted that purse and belt similar to the seized purse and belt are easily available in the market. Thus, it is clear that the appellant is alleged to have taken out the purse and belt when he was alone in the room. Even this witness has not seen the box from which the belt and purse were allegedly taken out by the appellant. Even this Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 14 Cr.A. No.778/2014 witness could not explain that by which vehicle the police party had gone to the house of appellant and even the condition of the house of appellant i.e., whether pacca or kachha was also not known to this witness. Therefore, the evidence of this witness that belt and purse were taken out by the appellant from a box, which were seized by seizure memo Ex P.19 is unreliable.
32. B.D. Dwivedi (P.W. 14) is also a seizure witness and is a police personnel. It is true that the evidence of a police personnel cannot be discarded merely on the ground that he is a police personnel, but his evidence has to be appreciated cautiously. He has stated that they went to the house of appellant on two motorcycles i.e., he and Ganeshwar were on one motorcycle whereas Ajay Singh (P.W. 13) was on another motorcycle. The appellant was made to sit on his motorcycle between him and Ganeshwar. The mother of the appellant was in the house. The box was kept in the middle room and it was in open condition. He admitted that similar belt and purse are available in market. No panchnama was prepared for going to the house of appellant. This witness does not speak about the presence of Sumit Daniel at the time of making of memorandum Ex. P.18 or at the time of seizure Ex. P.19. Sumit Daniel (P.W.12) has stated that there was nobody in the house of the appellant, whereas this witness says, that mother of the appellant was in the house. Under these circumstances, this Court is of the considered opinion, that the evidence of B.D. Dwivedi (P.W.14) is not reliable.
33. Furthermore, purse and belt which were seized, were simple articles and are easily available in the market. Why an accused would keep the same with him, so that a circumstance may be used against him?
34. Thus, it is held that the prosecution has failed to prove that purse and belt were seized from the house of appellant.
Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 15 Cr.A. No.778/2014 Identification of purse and belt
35. Initially, Guman Singh (P.W.2) did not say anything about identification of purse and belt. However, he was recalled, and he stated that 3-4 belts and 3-4 purses were kept on the table and he had identified the purse and belt of his son. Ajay Tiwari (P.W. 15) has stated that the identification of articles was done by him in the Kotwali. The articles were brought by the police. Admittedly the identification of articles was done by this witness in the police station. Articles were brought by the police. This witness has stated that sealed belt was opened and 3 similar belts were kept in front of him. Thus, it is clear that the identification was not only done in the police station, but even the articles were brought by the police and they were opened in front of this witness. Therefore, the presence of police personnel at the time of identification cannot be ruled out. Furthermore, the prosecution has proved the identification memo of belt, Ex. P.21 only and not the identification of purse. Therefore, the identification of seized articles i.e., belt and purse is also not very reliable and it would be very hazardous to rely on the same without any corroboration by supporting evidence. Furthermore, since, the seizure of belt and purse from the possession of the appellant could not be proved by the prosecution beyond reasonable doubt, therefore, even otherwise, the identification of purse and belt is of no importance. Abscondence
36. It is submitted by Counsel for the State that since, the appellant was absconding, therefore it indicates towards his guilty mind.
37. Mere abscondence is not sufficient to draw an adverse inference against the appellant. Sometimes, a person may abscond out of fear. Abscondence provide a very weak type of circumstance and unless and until it is corroborated by substantive evidence, it is not sufficient to Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 16 Cr.A. No.778/2014 convict a person. The Supreme Court in the case of Matru Vs. State of U.P. reported in (1971) 2 SCC 75 has held as under :
19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-
preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. 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 of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence.
37.1 The Supreme Court in the case of Bipin Kumar Mondal v. State of W.B., reported in (2010) 12 SCC 91 has held as under :
Abscondence by the accused
27. In Matru v. State of U.P. this Court repelled the submissions made by the State that as after commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under : (SCC p. 84, para 19)
16. "19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct of self-preservation. The act of absconding is no Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 17 Cr.A. No.778/2014 doubt relevant piece of evidence to be considered along with other evidence but its value would always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it as a very small item in the evidence for sustaining conviction. 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 of the guilt of the accused. In the present case the appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is not inconsistent with his innocence."
A similar view has been reiterated by this Court in Rahman v. State of U.P. and State of M.P. v. Paltan Mallah.
28. Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjee that mere absconding by the appellant after commission of the crime and remaining untraceable for such a long time itself can establish his guilt. Absconding by itself is not conclusive either of guilt or of guilty conscience.
29. The defence did not even make a suggestion to Sujit Mondal, PW 1, that he was not injured by the appellant with a knife. The evidence of PW 1, therefore, cannot be ignored. However, as the prosecution failed to produce any evidence to the effect that Sujit Mondal, PW 1, remained admitted in PHC, Raninagar, that part of the evidence has been ignored by the trial court as well as by the High Court.
38. Thus, it is clear that mere Abscondence cannot be a sole ground to hold a person guilty.
39. So far as the death of Sagar Singh is concerned, Dr. Suresh Jain (P.W.9) who had conducted the postmortem stated that :
Dead body of young Adult Male in advanced stage of Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 18 Cr.A. No.778/2014 petrification. Lying straight supine with missing phalynxes of all fingers of left hand and left thumb completely. Margins of wound is (Illegible) and irregular. Bones of right leg with thigh are exposed ankle to hip with very small tag of soft tissue. Rest of the soft tissue missing. Right great toe is dressed with bandage. Lower abdomen with thigh is fully exposed. Left thigh is exposed 11 inch below the pupil symphyses. Private missing. Lower abdomen is (illegible) of all the soft tissue of abdominal wall upto 13 inch above the pupil symphyses exposing internal organs. Prostate gland seen. No injury seen in exposed organs and intestines. As the body is swollen and advanced stage of decomposition, (illegible) layer of skin is peeled off and underlying dermal part of skin is blackish. The following anti mortem wounds are present on the body:
(1) Incised Wound 2inchx1inchx1 ½ inch deep present on the left side of neck, 4 inch above sternoclavicular joint placed horizontal;
(2) A semi circular incised wound 4 inch x 2 inch x bone deep chipping the bone on left temporal parietal part of scalp present;
(3) Horizontal incised wound over left temporal parietal part of scalp 3 inch x ½ inch x brain deep (illegible) exposing the damaging the brain tissue. There is loss of brain tissue from that area ;
(4) Right ear is missing completely exposing a wound of about 4 inch x 3 inch muscle deep. The margins and base of wound is moth eaten irregular (illegible) maggots. Right eye ball missing and left shrunken.
On internal examination, cut fracture of left temporo occipital bone ruptured at wound site brain and spinal cord was injured and missing at the wound site Both lungs were in advanced stage of pulverization due to petrification Liver in early stage of petrification spleen pulverized due to petrification Kidney in early stage of petrification Cause of death As far finding in and over the body of Sagar Singh son of Guman Singh. We all the autopsy member could reach on Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 04-09-2024 19:10:32 NEUTRAL CITATION NO. 2024:MPHC-JBP:44012 19 Cr.A. No.778/2014 the opinion that the cause of death seems to be coma associated with shock due to head injury.
Time passed since death is more than 5 days the time of P.M.. However, viscera and bone has been preserved to facilitate the further investigation and D.N.A. testing.
40. The post mortem report is Ex. P.16(c). This witness was not cross- examined except by putting one question that opinion given by him is not mentioned in post mortem report Ex. P.16(c). Thus, it is clear that Sagar Singh had died a homicidal death but since, the prosecution has failed to prove that the appellant was in any manner involved in abduction of Sagar Singh, or any incriminating material was seized from the possession of appellant, or the appellant was last seen for the last time with the deceased, therefore, the conviction of the Appellant Bunty @ Shailendra @ Guddu cannot be upheld. Accordingly, the conviction of Appellant Bunty @ Shailendra @ Guddu for offence under Sections 120B, 364 and 302 of IPC is hereby set aside. The Appellant Bunty @ Shailendra @ Guddu is acquitted of all the charges.
41. Ex-consequenti, the Judgment and Sentence dated 27.1.2014 passed by 1st Addl. Sessions Judge, Katni in Sessions Trial No. 42/2008 is hereby set aside.
42. The appellant is in jail. He be set at liberty immediately, if not required in any other case.
43. A copy of this judgment be immediately sent to the Trial Court along with record for necessary information and compliance.
44. The appeal succeeds and is hereby Allowed.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
Arun*
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 04-09-2024
19:10:32