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2005(1) JLJ 206
S.P. Khare and A.K. Shrivastava, JJ.
State of M.P. v. Ramesh Kumar
Cri. Reference No. 3 of 2004; made by II Additional Sessions Judge,
Shahdol, in Sessions Trial No. 160 of 1999; Decided on 6.7.2004.
(2) Evidence Act, 1872 -- S. 3 -- case resting on circumstantial evidence -- circumstances should be cogently and firmly established -should uner- ringly point towards guilt of accused -- should form a complete chain -- established facts should be consistent with the guilt of the accused only -- should be inconsistent with his innocence.
On 5.1.1999 Amit Kumar (hereinafter referred to as ‘the deceased‘) went to market to purchase some articles of household, but when he did not turn up, a missing report was lodged at Police Chowki, Rajnagar. It is said that on 14.1.1999 in the dawn hours, one Sindhi s/o Beershah Kol went to discharge excreta nearby the nala situated near cremation ground, at some distance he found dogs were quarrelling and one dog was eating the human skull. Thereafter, he went to that place and found that some human bones were lying here and there and at some distance he found a shirt and a baniyan of a boy between the age of 10-12 years. The sleeve of the shirt was found to be stained with blood. Similarly, the Sando baniyan was also stained with blood. He also noticed a trouser lying besmeared in the mud. [Para 2
During the course of merg enquiry by Investigating Officer Vijay Pratap Singh, statement ofInder Chand Jain, Patel Chouhan, Kanhaiya, Manish, Guddi alias Amrit, Preetam Yadav, etc. were recorded. On the basis of the statement of these witnesses, it was found that accused persons Raju and Ramesh went to the house of one Amrita and asked her to give pickaxe and spade and thereafter, after half an hour returned it to her. During the investigation, it was also found that accused persons confessed their ‘guilt to Rath Kumar by way of extra-judicial confession. [Para 4
Held : In the present case, there is no direct evidence against the appellant and the prosecution has based its case on the basis ,of circumstantial evidence. [Para 12
It is not proved that the deceased was kidnapped by the appellant. ... Since the doctor could not opine the sex of the person of which the bones were sent to him for examination, according to us, by placing reliance on the decision of the Apex Court in Balwinder Singh [1996 SCC (Cri.) 59], it raises a serious doubt that the bones are of the deceased. ... it is not proved that accused-appellant made any extra-judicial confession to PW 7 Rath Kumar and no conviction could be accorded on its basis. ... There is no evidence on record that any ransom was demanded by the accused-appellant or by any other person, from the family members of the deceased and, therefore, it cannot be said and it is not proved that to re-pay the loan amount of the Bank, the deceased was kidnapped and killed. Thus; the evidence regarding this circumstance would also not help the prosecution.
On the basis of aforesaid reasons, we are unable to uphold the conviction of the accused-appellant recorded by the trial Court and the same is hereby set-aside. (1989) Supp. (2) SCR 706, AIR 1984 SC 1622, (2001) 9 SCC 277, 2002(2) JLJ 273 (SC) and (2003) 8 SCC 180 followed. [Paras 15 to 17
(3) Penal Code, 1860 -- S. 12GB -- witness of conspiracy between accused persons to kidnap the deceased -- remained silent even when deceased got kidnapped, appeals for information regarding deceased were made on loud speakers and even when dead body was recovered -- informed police‘ only after arrest of accused -- alleged place of hatching of conspiracy also highly unlikely -- would be hazardous to rely on his testimony to uphold conviction. [Para 16
(4) Evidence Act, 1872 -- S. 3 -- circumstance of taking pickaxe and spade -- not connected with case -- sex of alleged bones of kidnapped boy not ascertained -- it raises serious doubt whether the bones found were ‘of alleged boy. 1996 SCC (Cri) 59 followed.
[Para 16(ii)
(5) Evidence Act, 1872 -- Ss. 24 and 3 -- circumstance of extra-judicial confession -- cannot be relied upon when witness clearly says that on account of police pressure he gave incorrect evidence. [Para 16(iii)
(6) Evidence Act, 1872 -- Ss. 24 and 156 -- evidence of extra-judicial confession -- is a weak type of evidence -- it is unsafe to convict a person solely on the basis of this evidence without corroboration. 1988 (Supp.) see 526 followed. [Para 16(iii)
(7) Criminal P.C., 1973 -- S. 164 -- statement recorded under -is not substantive piece of evidence -- it can be used either for contradiction or for corroboration -- it is also evident that at one stage of investigation veracity and credibility of such witness was doubted by prosecution -- such evidence is not reliable. 1996(1) Vidhi Bhaswar 269, 1995(II) MPWN 150 and 1991 JLJ 53 relied on. [Para 16(iii)
(8) Evidence Act, 1872 -- S. 27 -- seizure of socks of deceased from accused --so many socks sold by witness and also by others -no reliance on seizure can be placed. [Para 16(iv)
(9) Evidence Act, 1872 -- S. 8 -- no ransom demanded -- no presumption can be drawn that kidnap was to re-pay bank loan taken by the accused -- no motive proved. [Para 16(v)
¼1½ naM lafgrk] 1860 && /kkjk 364] 302 rFkk 201 && ekeyk ikfjfLFkfr;ksa lk{; ij fuHkZj && ifjfLFkr;k¡ lkfcr ugha && vfHk;qDr nks"kflf) dk gdnkj gSA ¿ iSjk 18À
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 3 && ekeyk ikfjfLFkfrd lk{; ij fuHkZj && ikfjfLFkfr;k¡ rdZiw.kZ :i ls rFkk lqn`<+ :i ls LFkkfir gksuk pkfg, && vfHk;qDr dk nks"k vpwd :i ls minf‘kZr gksuk pkfg, && J`a[kyk iw.kZ gksuk pkfg, && LFkkfir rF; dsoy vfHk;qDr ds nks"k ls laxr gksuk pkfg, && mldh funksZf"krk ls vlaxr gksuk pkfg,A
5-1-1999 dks vfer dqekj ¼,rfLeu~i‘pkr~ Þe`rdß ds :i esa fufnZ"V½ x`gLFkh dh dqN oLrq,¡ Ø; djus ds fy, cktkj x;k ijarq tc og ugha ykSVk rc iqfyl pkSdh] jktuxj ls mlds ykirk gksus dh fjiksVZ nkf[ky dh xbZA dfFkr gS fd 14-1-1999 dks Hkksj osyk esa fla/kh iq= chj‘kkg dksy dk iq= ‘ke‘kku ?kkV ds lehi fLFkr ukys ds fudV fuo`Ùk gksus x;k rc mlds ns[kk fd ogk¡ dqN dqÙks yM+ jgs gSa rFkk ,d dqÙkk ekuo [kksiM+h [kk jgk gSA rRi‘pkr~ og ml LFkku ij x;k rFkk mlus ik;k fd ;gk¡&ogk¡ ekuo vfLFk;k¡ iM+h gSa vkSj dqN nwjh ij mlus 10&12 o"kZ dh vk;q ds ckyd dh deht vkSj cfu;ku iM+h ikbZA deht dh ck¡g jDrjaftr FkhA blh izdkj] lSaMks cfu;ku Hkh jDrjaftr FkhA mlus dhpM+ esa yFkiFk irywu Hkh ns[khA ¿ iSjk 2À
vUos"k.k vf/kdkjh fotizrkiflag }kjk ekxZ tk¡p ds nkSjku banjpan tSu] iVsy pkSgku] dUgS;k] euh‘k] xqM~Mh mQZ ve`r] izhre ;kno vkfn ds dFku vfHkfyf[kr fd, x,A bu lkf{k;ksa ds dFkuksa ds vk/kkj ij ik;k x;k fd vfHk;qDr O;fDr jktw vkSj jes‘k] ve`rk ds ?kj x, vkSj mlls xSarh vkSj QkoM+k nsus dks dgk rFkk rRi‘pkr~] vk/ks ?kaVs i‘pkr~ mls ykSVk fn,A vUos"k.k ds nkSjku ;g Hkh ik;k x;k fd vfHk;qDr O;fDr;ksa us U;ksf;dsrj laLohd`fr ds ek/;e ls jFkdqekj ds le{k viuk nks"k laLohdkj fd;kA ¿ iSjk 4À
vfHkfu/kkZfjr % izLrqr ekeys esa vihykFkhZ ds fo#) dksbZ Hkh izR;{k lk{; ugha gS rFkk vfHk;ksuti{k us viuk ekeyk ikfjfLFkfrd lk{; ij vk/kkfjr fd;k gSA ¿ iSjk 12À
;g lkfcr ugha gqvk gS fd e`rd dk O;igj.k vihykFkhZ }kjk fd;k x;k FkkA ------ D;ksafd fpfdRld ml O;fDr ds ftldh vfLFk;k¡ mls ijh{k.k ds fy, Hksth xbZ Fkha] fyax ds ckjs esa jk; ugha ns ldk] cyfoanj flag ¿ 1996 ,l lh lh ¼fؽ 59À esa mPpre U;k;ky; ds fofu‘p; dk voyac ysrs gq, gekjs vuqlkj] bl ckjs esa xaHkhj lansg mRiUu gksrk gS fd ;g vfLFk;k¡ e`rd dh gSA- ------ ;g lkfcr ugha gS fd vfHk;qDr&vihykFkhZ us v lk 7 jFkdqekj ds le{k U;kf;dsrj laLohd`fr dh] rFkk mlds vk/kkj ij nks"kflf) ugha dh tk ldrhA ------- vfHkys[k ij ,slk dksbZ Hkh lk{; ugha gS fd vfHk;qDr&vihykFkhZ }kjk ;g fdlh vU; O;fDr }kjk e`rd ds dqVqac ds lnL;ksa ls eqfDr /ku dh ek¡x dh xbZ Fkh] blfy, ;g ugha dgk tk ldrk vkSj ;g lkfcr ugha fd;k x;k gS fd cSad ds _.k dh jde izfrlanÙk djus ds fy, e`rd dk O;igj.k fd;k x;k vkSj mldh gR;k dh xbZA vr%] bl ifjfLFkfr ds ckjsa esa lk{; ls Hkh vfHk;kstui{k dks lgk;rk izkIr ugha gksrhA
iwoksZDr dkj.kksa ds vk/kkj ij fopkj.k U;k;ky; }kjk vfHkfyf[kr vfHk;qDr&vihykFkhZ dh nks"kflf+) ekU; ugha Bgjk ldrs rFkk nks"kflf) ,rn~}kjk vikLr dh tkrh gSA 1989 lIyh- ¼2½ ,l lh vkj 706] , vkb vkj 1984 ,l lh 1622] ¼2001½ 9 ,l lh lh 277] 2002¼2½ ts ,y ts 273 ¼mPpre U;k-½ rFkk ¼2003½ 8 ,l lh lh 180 vuqlfjrA ¿ iSjk 15 ls 17À
¼3½ naM lafgrk] 1860 && /kkjk 120[k && vfHk;qDr O;fDr;ksa ds e/; e`rd ds O;igj.k ds ""kM~;a= dk lk{kh && e`rd dk O;igj.k gqvk] e`rd ds ckjs esa tkudkjh ds fy, ykmM Lihdjksa ij vihysa dh xbZ vkSj ‘ko cjken gqvk rc Hkh ekSu jgk && vfHk;qDrx.k dh fxjrkjh ds i‘pkr~ gh iqfyl dks bfÙkyk nh && ""kM~;a= jpus dk vfHkdfFkr LFkku Hkh vR;f/kd vlaHkkfor && nks"kflf) ekU; Bgjkus ds fy, mlds ifjlk{; dk voyac ysuk ifjladVe; gksxkA ¿ iSjk 16À
¼4½ lk{; vf/kfu;e] 1872 && /kkjk 3 && xSarh vkSj QkoM+k ysus dh ifjfLFkfr && ekeys ls lacaf/kr ugha && O;iàr ckyd dh vfHkdfFkr vfLFk;ksa ls fyax vfHfuf‘pr ugha && bl ckjs esa xaHkhj lansg mRiUu gksrk gS fd izkIr vfLFk;k¡ ckyd dh FkhA 1996 ,l lh lh ¼fØ-½ 59 vuqlfjrA ¿ iSjk 16¼2½À
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 24 rFkk 3 && U;kf;dsrj laLohd`fr dh ifjfLFkfr && voyac ugha fy;k tk ldrk tc lk{kh Li"Vr% dg jgk gS fd mlus iqfyl ds ncko ds dkj.k xyr lk{; fn;kA ¿ iSjk 16¼3½À
¼6½ lk{; vf/kfu;e] 1872 && /kkjk 24 rFkk 156 && U;kf;dsrj laLohd`fr dk lk{; && nqcZy izdkj dk lk{; gS && laiqf"V ds vHkko ds dsoy bl lk{; ds vk/kkj ij O;fDr dks fl)nks"k Bgjkuk vkiniw.kZ gSA 1988 ¼lIyh-½ ,l lh lh 526 vuqlfjrA ¿ iSjk 16¼3½À
¼7½ naM izfØ;k lafgrk] 1973 && /kkjk 164 && ds v/khu vfHkfyf[kr dFku && eq[; lk{; ugha gS && mldk mi;ksx [kaMu ;k laiqf"V ds fy, fd;k tk ldrk gS && ;g Hkh lqLi"V gS fd vUos"k.k ds ,d izØe ij bl lk{kh dh lR;rk vkSj fo‘oluh;rk ij vfHk;kstui{k dks lansg Fkk && ,slk lk{; voyacuh; ugha gSA 1996 ¼1½ fof/k HkkLoj 269] 1995¼2½ e-iz- ohDyh uksV~l 150 rFkk 1991 ts ,y ts 53 voyafcrA ¿ iSjk 16¼3½À
¼8½ lk{; vf/kfu;e] 1872 && /kkjk 27 e`rd ds ekstksa dk vfHk;qDr ls vfHkxzg.k && lk{kh }kjk rFkk vU; yksxksa }kjk Hkh muds eksts foØ; fd, x, && vfHkxzzg.k dk voyac ugha fy;k tk ldrkA ¿ iSjk 16¼4½À
¼9½ lk{; vf/kfu;e] 1872 && /kkjk 8 && eqfDr /ku ugha ek¡xk x;k && ;g mi/kkj.kk ugha dh tk ldrh fd O;igj.k vfHk;qDr }kjk fy, x, cSad _.k ds izfrlank; ds fy, && gsrqd lkfcr ughaA ¿ iSjk 16¼5½À
Shrivastava, J. -- 1. The learned Second Additional Sessions Judge, Shahdol has referred this death reference under section 366(1) of the Code of Criminal Procedure (hereinafter referred to as 'the Code'), is heard along with Criminal Appeal No. 699 of 2004 filed by appellant Ramesh Kumar against his conviction and order of sentence of death under section 302 of Indian Penal Code (for brevity 'the IPC') passed by learned trial Judge vide impugned judgment dated 8th April, 2004 passed in Sessions Trial No. 160 of 1999. The accused-appellant has also challenged his conviction under section 364 and 201 IPC.
2. In brief the case of prosecution is that on 5.1.1999 Amit Kumar (hereinafter referred to as 'the deceased') went to market to purchase some articles of household, but when he did not turn up, a missing report was lodged at Police Chowki, Rajnagar. It is said that on 14.1.1999 in the dawn hours, one Sindhi s/o Beershah Kol went to discharge excreta nearby the nala situated near cremation ground, at some distance he found dogs were quarrelling and one dog was eating the humal skul1. Thereafter, he went to that place and found that some human bones were lying here and there and at some distance he found a shirt and a baniyan of a boy between the age of 10-12 years. The sleeve of the shirt was found to be stained with blood. Similarly, the Sando baniyan was also stained with blood. He also noticed a trouser lying besmeared in the mud. At 3 p.m., when his duty became off, he went to the police station and lodged a report on 14.1.1999 which was registered as merg report.
3. On the basis of merg intimation report, the Station Officer-in-charge Shri Vijay Pratap Singh arrived at the spot, seized the skeleton, head, clothes (trouser, shirt, Baniyan etc.) and issued notices to Leeladhar Sharma, Inder Chand, Pacho Lal, Ashok Mishra and Gynendra Singh and they identified the clothes to be of the deceased who was killed by unknown person. The investigating officer Shri Vijay Pratap Singh sent the skeleton to Community Health Centre, Bijuri where on examination by Dr. D.K. Kori the bones were found to be of human. Dr. Kori advised to send the skeleton to expert.
4. During the course of merg enquiry by Investigating Officer Vijay Pratap Singh, statement of Inder Chand Jain, Patel Chouhan, Kanhaiya, Manish, Guddi alias Amrit, Preetam Yadav, etc. were recorded. On the basis of the statement of these witnesses, it was found that accused persons Raju and Ramesh went to the house of one Amrita and asked her to give pickaxe and spade and thereafter, after half an hour returned it to her. During the investigation, it was also found that accused persons confessed their guilt to Rath Kumar by way of extra-judicial confession. On the disclosure of fact under section 27 of the Evidence Act, mattress, quilt and a bottle of oil which were used for the commission of the offence under section 377, IPC were also seized. On the basis of the material collected by the investigating officer during merg enquiry, a case under section 302, 377, 364 and 201 IPC was registered against the accused persons.
5. in furtherance to his investigation, the investigating officer recorded the statement of Laxman from whose shop the rope was purchased by accused Raju and Ramesh, the investigating officer further collected the document from Higher Secondary School where accused-appellant Ramesh Kumar was serving as Assistant Teacher. He also seized a certificate from Hari Narain Soni, Manager Central Bank who gave the loan of Rs. 75,000/- to appellant-accused Ramesh to open a shop of provision store under the head of Pradhan Mantri Berojgar Yojana and at the instance of accused persons the investigating officer seized socks of deceased from the house of appellant Ramesh. The socks were subjected to identification, which was conducted by Tehsildar Bihari Lal. The human skeleton was sent to Director, Forensic Medicine Medico Legal Institution at Gandhi Medical College, Bho
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