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2007(2) JLJ 357
Deepak Verma and Rakesh Saksena, JJ.
Chandra Kumar Kankariya and others v. State of M.P.
Criminal Appeal No. 1083 of 1991 (Jabalpur) : against the
judgment of II Additional Sessions Judge, Balaghat,
passed in Sessions Trial No.32 of 1991; Decided on 2.2.2006.
The prosecution story is that on 24.10.1990 at about 4:00 p.m. Girish Kumar Tiwari (deceased) had left his house on his Rajdoot Motorcycle No.CIJ-391. When he did not return till late in night, his wife Smt. Roopa Tiwari informed Girish‘s cousin Pramod Tiwari at about 10-11 O‘clock in night. She informed him that Girish had told her that he was going to fetch money from Pragati Plastic Factory, Bhatera. When Girish had gone from house, he had been wearing brown shirt, black terricot full-pant, a gold chain, two gold rings and a wrist watch. On search, when he was not found, on 25.10.1990 Pramod Tiwari lodged the report about his missing at Police Station Balaghat, which was recorded at Rajnamcha No.2099. On getting information that Girish had met accused Chandra Kumar on 24.10.1990 in Pragati Plastic Factory, police interrogated Chandra Kumar on 25th and 26th October, 1990. On facts emerging out of inquiry, police found it to be a case of abduction and registered a case under section 364 of IPC. On 27.10.1990, during investigation, it was disclosed that accused Chandra Kumar and other accused persons had murdered Girish Tiwari in Pragati Plastic Factory, Bhatera, and had concealed the dead body wrapped in a gunny bag in a Nala near Sonbehri. On information of accused Chandra Kumar recorded under section 27 of the Evidence Act and at his instance the dead body was recovered from Sonbehri Nala and a case under murg was registered. [Para 2
Held : The mere fact that the dead body was pointed out by the appellant or was discovered as a result of a statement made by him would not necessarily lead to the conclusion of the offence of murder ..... Recovery of the dead body at the instance of accused is not a conclusive circumstance that he committed the murder.
The dead body was not covered with anything and was lying in open. It was lying near Nala which was an open place near the road, therefore, it is not possible to concluded that it was only appellant Chandra Kumar, who alone knew about the presence of dead body lying there. In the aforesaid background, the circumstance of recovery of the dead body at the instance of appellant Chandra Kumar cannot be taken to be a conclusive incrimination piece of evidence pointing to his guilt. AIR 1966 SC 821, AIR 1971 SC 2016, AIR 2002 SC 16 and (1999)4 SCC 370 followed. [Paras 15 & 16
(2) Evidence Act, 1872 -- Ss.27 and 3 -- recovery of articles from place not in possession of accused -- discovery giving rise to more than one probable inferences -- cannot be used as incriminating circumstance against accused. [Para 19
(3) Evidence Act, 1872 -- S.3 -- Penal Code, 1860 -- Ss.302 and 201 -- chain of circumstantial evidence not complete -- accused cannot be convicted. [Para 20
(4) Penal Code, 1860 -- S.302/34 -- recovery from open place -- bloodstains found to be of ‘O‘ group -- blood group of deceased not proved -- circumstance not sufficient to record conviction. [Para 22
(5) Evidence Act, 1872 -- S.3 -- case depending on circumstantial evidence -- circumstances must be cogently and family established -- should be of definite tendency -- chain should be formed -- must be complete. AIR 1990 SC 79 and 1992 CrLJ 1104 followed. [Para 24
(6) Penal Code, 1860 -- S.404 -- valuable articles belonging to deceased found in possession of accused -- recovery proved beyond reasonable doubt -- liable for punishment. [Para 17
¼1½ naM lafgrk] 1860 && /kkjk 302 && lk{; vf/kfu;e] 1872 && /kkjk 27 && ‘ko [kqys LFkku ls vfHk;qDr dh izsj.kk ij feyk && lM+d ij ls lc dks n`‘; && <¡dk gqvk ugha && cjkenxh ds dkj.k vfHk;qDr gR;k ds vijk/k ls lac) ugha gksrkA
vfHk;kstu dFkk ;g gS fd 24-10-1990 dks vijkg~u yxHkx 4%00 cts fxjh‘k dqekj frokjh ¼e`rd½ us viuh jktnwr eksVj lkbfdy lh vkb ts&391 ij viuk ?kj NksM+kA tc og jkr esa nsj rd ugha ykSVk] mldh iRuh :ik frokjh us fxjh‘k ds ppsjs HkkbZ izeksn dqekj frokjh dks jkr dks yxHkx 10&11 cts lwpuk nhA mlus mls crk;k fd fxjh‘k us mlls ;g dgk Fkk fd og izxfr IykfLVd QSDVjh] HkVsjk ls /ku ykus tk jgk gSA tc fxjh‘k ?kj ls x;k Fkk og Hkwjh deht] VsjhdksV dk dkyk Qqy iSaV] ,d lksus dh tathj] lksus dh nks vaxwfB;k¡ vkSj ,d gkFk?kM+h igus FkkA [kkst dh tkus ij tc og ugha feyk] izeksn frokjh us 25-10-1990 dks mlds xqe gksus dh fjiksVZ iqfyl Fkkuk ckyk?kkV esa nkf[ky dh tks jkstukepk Ø-2099 ij vfHkfyf[kr dh xbZA ,slh lwpuk izkIr gksus ij fd fxjh‘k] vfHk;qDr panz dqekj ls 24-10-1990 dks izxfr IykfLVd QSDVjh esa feyk Fkk] iqfyl us 25 vkSj 26 vDVwcj dks panz dqekj ls iwNrkN dhA tk¡p fd, tkus ij tks rF; izdV gq, mu ij ls iqfyl us ;g ekeyk vigj.k dk ik;k vkSj Hkk-na-la- dh /kkjk 364 ds v/khu ekeyk jftLVªhd`r fd;kA 27-10-1990 dks vUos"k.k ds nkSjku ;g izdV gqvk fd vfHk;qDr panz dqekj vkSj vU; vfHk;qDr O;fDr;ksa us fxjh‘k frokjh dh izxfr IykfLVd QSDVjh esa gR;k dj nh rFkk ‘ko cksjh esa yisV dj lksucsgjh ds lehi ukys esa fNik fn;k FkkA lk{; vf/kfu;e dh /kkjk 27 ds v/khu vfHkfyf[kr vfHk;qDr panz dqekj dh lwpuk ij vkSj mldh izsj.kk ij ‘ko lksucsgjh ukyk ls cjken fd;k x;k vkSj exZ ds v/khu ekeyk jftLVªhd`r fd;k x;kA ¼iSjk 2
vfHkfu/kkZfjr % ek= bl rF; ls fd ‘ko vihykFkhZ us crk;k Fkk vFkok mlds }kjk fd, x, dFku ds ifj.kkeLo:i [kkstk x;k Fkk] gR;k dk fu"d"kZ ugha fudkyk tk ldrkA ---- vfHk;qDr dh izsj.kk ij ls ‘ko dh cjkenxh ,slh fu‘pk;d ifjfLFkfr ugha gS fd mlus gR;k dh FkhA
‘ko fdlh oLrq ls <¡dk ugha Fkk vkSj [kqys esa iM+k FkkA og ukys ds lehi iM+k Fkk tks lM+d ds lehi [kqyk LFkku gS] blfy,] ;g fu"d"kZ fudkyuk laHko ugha gS fd og dsoy vfHk;qDr panz dqekj gh Fkk ftl vdsys dks ogk¡ iM+s gq, ‘ko dh fo|ekurk dh tkudkjh FkhA iwoksZDr i`"BHkwfe esa] vihykFkhZ panz dqekj dh izsj.kk ij ‘ko dh cjkenxh dh ifjfLFkfr dks mlds nks"k dks bafxr djus okyh fu‘pk;d vijk/k esa Q¡lkus okyk lk{; ugha ekuk tk ldrkA , vkb vkj 1966 ,l lh 821] , vkb vkj 1971 ,l lh 2016] , vkb vkj 2002 ,l lh 16 rFkk ¼1999½4 ,l lh lh 310 vuqlfjrA ¼iSjk 15 ,oa 16
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 27 rFkk 3 && oLrqvksa dh cjkenxh ,sls LFkku ls tks vfHk;qDr ds dCts esa ugha && izdVu] ,d ls vf/kd vf/klaHkkO; fu"d"kZ mn~Hkwr djus okyk && vfHk;qDr ds fo:) vijk/k esa Q¡lkus okyh ifjfLFkfr dh Hkk¡fr iz;qDr ugha fd;k tk ldrkA ¼iSjk 19
¼3½ lk{; vf/kfu;e] 1872 && /kkjk 3 && naM lafgrk] 1860 && /kkjk 302 rFkk 201 && ikfjfLFkfrd lk{; dh ‘k`a[kyk iw.kZ ugha && vfHk;qDr fl)nks"k ugha Bgjk;k tk ldrkA ¼iSjk 20
¼4½ naM lafgrk] 1860 && /kkjk 302@34 && [kqys LFkku ls cjkenxh && jDr ds /kCcs ^vks* lewg ds gksuk ik, x, && e`rd dk jDr lewg lkfcr ugha fd;k x;k && ifjfLFkfr nks"kflf) vfHkfyf[kr fd, tkus ds fy, i;kZIr ughaA ¼iSjk 22
¼5½ lk{; vf/kfu;e] 1872 && /kkjk 3 && ekeyk ikfjfLFkfrd lk{; ij fuHkZj && ifjfLFkfr vkSj lqn`<+rk ls LFkkfir dh tkuk pkfg, && ‘k`a[kyk cuuk pkfg, && iw.kZ gksuk gh pkfg,A , vkb vkj 1990 ,l lh 79 rFkk 1992 lhvkj ,y ts 1104 vuqlfjrA ¼iSjk 24
¼6½ naM lafgrk] 1860 && /kkj 404 && e`rd dh ewY;oku oLrq,¡ vfHk;qDr ds dCts esa ikbZ xbZa && cjkenxh ;qfDr;qDr lansg ls ijs lkfcr && naM dk nk;h gSA ¼iSjk 17
Saksena, J. -- 1. Appellants have filed this appeal against the judgment dated 22.11.1991 passed by the Second Additional Sessions Judge, Balaghat, in ST No.32 of 1991 convicting the appellants under sections 302/34, and 201 of IPC and sentencing them to imprisonment for life and rigorous imprisonment for five years respectively. Appellant No.1 Chandra Kumar has been further convicted under section 404 of IPC and sentenced to RI for three years.
2. Briefly stated, the prosecution story is that on 24.10.1990 at about 4:00 p.m. Girish Kumar Tiwari (deceased) had left his house on his Rajdoot Motorcycle No.CIJ-391. When he did not return till late in night, his wife Smt. Roopa Tiwari informed Girish's cousin Pramod Tiwari at about 10-11 O'clock in night. She informed him that Girish had told her that he was going to fetch money from Pragati Plastic Factory, Bhatera. When Girish had gone from house, he had been wearing brown shirt, black terricot full-pant, a gold chain, two gold rings and a wrist watch. On search, when he was not found, on 25.10.1990 Pramod Tiwari lodged the report about his missing at Police Station Balaghat, which was recorded at Rajnamcha No.2099. On getting information that Girish had met accused Chandra Kumar on 24.10.1990 in Pragati Plastic Factory, police interrogated Chandra Kumar on 25th and 26th October, 1990. On facts emerging out of inquiry, police found it to be a case of abduction and registered a case under section 364 of IPC. On 27.10.1990, during investigation, it was disclosed that accused Chandra Kumar and other accused persons had murdered Girish Tiwari in Pragati Plastic Factory, Bhatera, and had concealed the dead body wrapped in a gunny bag in a Nala near Sonbehri. On information of accused Chandra Kumar recorded under section 27 of the Evidence Act and at his instance the dead body was recovered from Sonbehri Nala and a case under murg was registered.
3. During investigation, on the information of accused Chandra Kumar a gold chain, gold rings, silver locket and Rs.500/- cash of deceased were recovered from his house and a register of accounts belonging to deceased was seized from the house of Hansmukh Katre. At the instance of accused Babboo @ Maqbool blood stained clothes, which he was wearing at the time of occurrence and on iron rod were seized. On the information of accused Hamid, motorcycle of deceased was seized lying near by the Nala and his blood stained clothes were also seized. At the instance of accused Malla (Bhalla) @ Devendra an electric wire which was allegedly used for tying the dead body on the motorcycle and his blood stained clothes were recovered. A carpet, cement plaster of the floor, marble tiles and an iron rod were seized from the Pragati Plastic Factory. The seized articles were sent to FSL Sagar and to FSL Kolkata for serological examination.
4. Gold chain, two gold rings and a silver locket, recovered at the instance of accused Chandra Kumar, were put up for test identification by Smt. Roopa Tiwati and Madan Lal Soni who identified the same to be of Girish Kumar. Dead body was sent for post-mortem examination to District Hospital, Balaghat, where Dr. N.K. Harinkhede, Assistant Surgeon, found that the dead body was highly decomposed and was in unrecognizable condition, eye balls protruded out; tongue was swollen and the whole body was discoloured, foul smell was spreading and meggots were present. Vide his report EX.P-32 four lacerated wounds on the frontal, parietal and occipital region of the skull with fractures of underlying bones and tear of duramatter were found, subdural haematoma with liquified brain matter was coming out. According to him, the cause of death was multiple injuries over the scalp and fractures of skull bones. The injures were caused by hard and blunt object and were ante mortem in nature.
5. After investigation the charge-sheet was filed before the Court of Chief Judicial Magistrate, Balaghat and the case was committed for trial. The t
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