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2017 Supreme(MP) 809
IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak and G. S. Ahluwalia, JJ.
Bhagwan Singh v. State of M. P.
Criminal Appeal No. 491 of 2010 (Gwalior); against judgment of conviction and sentence dated 18.5.2010 passed by Additional Sessions Judge, Sevada, Distt. Datia in Sessions Trial No. 67/2006;
Decided on. 21.12.2017
Sushil Goswami for appellant; Girdhari Singh Chauhan,
Public Prosecutor, for respondent/State.
Headnote:(1) Penal Code, 1860 -- Ss.302, 300 and 201 -- circumstantial evidence -- human dead body found burning near house of appellant -- appellant seen for the last time, standing by side of burning pyre -- pool of human blood, broken pieces of flagstone with blood stains, two broken legs of bed with blood stains found on roof of appellant -- blood stains going downwards found on boundary wall of roof -- blood on ground indicating place where dead body fell -- trails of blood marks of dragging dead body leading to pyre -- buckle and kada found in ashes identified by relatives of deceased -- appellant absconded after incident -- blood stained baniyan and underwear recovered from body of appellant -- cumulative effect of circumstances proved against appellant -- leads to only one conclusion that appellant committed murder -- extra--judicial confession also -- manner in which offence has been committed, would certainly fall within S.300 -- caused disappearance of evidence of offence by burning dead body -- judgment and sentence affirmed. (2014)5 SCC 509, (2012)11 SCC 205, (2012)11 SCC 196, (2017)8 SCC 497, 1962 Supp (2) SCR 203, (2013)9 SCC 778 and (2015)12 SCC 644 followed.
[Paras 33 to 38, 57 & 59
(2) Evidence Act, 1872 -- S.145 -- Criminal P. C., 1973 -- S.161 -- to take advantage of omission in previous statement, attention of witness has to be drawn to it, giving opportunity to explain omission -- omission in case diary statement about appellant coming to her house and taking deceased with him on pretext of cutting crops -- witness not confronted
-- evidence with regard to last seen together cannot be discarded. (2003)12 SCC 587 and (2000)4 SCC 298 followed. [Para 31
(3) Criminal Practice -- mere absconsion -- may not be indicative of guilty mind -- but if conduct is considered in light of surrounding circumstances, absconsion immediately after incident would assume importance. (1993) 2 SCC 684 and (1997)7 SCC 507 followed.
[Paras 39 & 42
(4) Criminal Practice -- absence of motive, by itself, cannot be a ground to reject prosecution case -- although its presence would assume importance in a case based on circumstantial evidence. (2016)12 SCC 783, (2014)12 SCC 439 and (2013)3 SCC 52 followed. [Para 47
(5) Legal Maxim -- falsus in uno, falsus in omnibus -- has no application therefore Courts must try to remove chaff from grain -- submission that since evidence of witnesses in respect of some of the accused persons has been disbelieved therefore their evidence should be discarded in toto -- cannot be accepted. (2014)5 SCC (Cri)573 and (2002)6 SCC 81 followed.
[Paras 51 & 54
(6) Penal Code, 1860 -- S.302 -- even if dead body is not recovered, if prosecution proves beyond reasonable doubt that victim has been done to death -- accused can be held guilty of committing murder. (2013)12 SCC 551 followed. [Para 55
¼1½ naM lafgrk] 1860 && /kkjk 302] 300 rFkk 201 && ikfjfLFkfrd lk{; && vihykFkhZ ds ?kj ds ikl eku o 'ko tyrk ik;k x;k && vihykFkhZ vafre ckj tyrh gqbZ fprk ds ikl [kM+k ns[kk x;k && vihykFkhZ dh Nr ij QSyk gqvk ekuo jDr] ifV;k ds jDrjaftr VqdM+s] iyax ds nks VwVs jDrjaftr iSj ik, x, && Nr dh eqaMsj ij uhps tkrs gq, jDr ds /kCcs ik, x, && Hkwfe ij jDr ls og LFkku bafxr tgkW 'ko fxjk && 'ko [khpus ds fpag fprk rd ys tkrs gS && jk[k esa ik, x, cdyl vkSj dM+k e`rd ds ukrsnkjksa }kjk igpkus x, && vihykFkhZ ?kVuk ds i'pkr~ Qjkj && vihykFkhZ ds 'kjhj ls jDrjfatr cfu;ku vkSj varoZL= cjken && ifjfLFkfr;ksa dk lafpr izHkko vihykFkhZ ds fo:) lkfcr && dsoy ,d fu"d"kZ fudyrk gS fd vihykFkhZ us gR;k dh && U;kf;dsrj laLohd`fr Hkh && ftl jhfr ls vijk/k fd;k x;k] og fuf'prr% /kkjk 300 es vk,xk && 'ko tyk dj lk{; feVk;k && fu.kZ; vkSj naM+kns'k vfHkiq"VA ¼2014½ 5 ,l lh lh 509] ¼2012½ 11 ,l lh lh 205] ¼2012½ 11 ,l lh lh 196] ¼2017½ 8 ,l lh lh 497] 1962 lIyh-¼2½ ,l lh vkj 203] ¼2013½ 9 ,l lh lh 778 rFkk ¼2015½ 12 ,l lh lh 644 vuqlfjrA ¼iSjk 33 ls 38] 57 ,oa 59
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 145 && naM+ izfØ;k lafgrk] 1973 && /kkjk 161 && iwoZrj dFku esa yksi dk Qk;nk ysus ds fy,] lk{kh dks yksi dk Li"Vhdj.k nsus dk volj nsrs gq, mldk /;ku ml vkSj vkd`"V djuk gksrk gS && vihykFkhZ ds mlds ?kj vkdj Qly dkVus ds cgkus e`rd dks vius lkFk ys tkus ds ckjs esa dsl Mk;jh dFku esa yksi && lk{kh dk lkeuk ugha djk;k x;k && vafre ckj lkFk ns[ks tkus ds ckjs esa lk{; R;Dr ugha fd;k tk ldrkA ¼2003½ 12 ,l lh lh 587 rFkk ¼2000½ 4 ,l lh lh 298 vuqlfjrA¼iSjk 31
¼3½ nakfM+d izFkk && ek= Qjkjh && nks"kh eu minf'kZr ugha gksrk && ijarq ;fn ifjorhZ ifjfLFkfr;ksa ds izdk'k esa vkpj.k ns[kk tk, rks ?kVuk ds rqjra i'pkr~ Qjkjh egRoiw.kZ gks tk,xhA ¼1993½ 2 ,l lh lh 684 rFkk ¼1997½ 7 ,l lh lh 507 vuqlfjr ¼IkSjk 39 ,oa 42
¼4½ nkafM+d izFkk && gsrq dk vHkko] vius vki es] vfHk;kstu ekeyk [kkfjt djus dk vk/kkj ugha gks ldrk && rFkkfi] ikfjfLFkfrd lk{; ij vk/kkfjr ekeys esa mldh fo|ekurk egRoiw.kZ gks tk,xhA ¼2016½ 12 ,l lh lh 783] ¼2014½ 12 ,l lh lh 439 rFkk ¼2013½ 3 ,l lh lh 52 vuqlfjrA ¼IkSjk 47
¼5½ fof/kd lw= && ,d ckr esa feF;k rks ,c ckr esa feF;k && ykxw ugha gksrk blfy, U;k;ky;ksa dks nw/k dk nw/k vkSj ikuh djus dk iz;kl djuk gksxk && fuosnu fd dqN vfHk;qDrks ds laca/k esa lkf{k;ks ds lk{; ij vfo'okl fd;k x;k gS blfy, mudk lk{; laiw.kZr% R;Dr fd;k tkuk pkfg, && Lohdkj ugh fd;k tk ldrkA ¼2014½ 5 ,l lh lh ¼fØ-½ 573 rFkk ¼2002½ 6 ,l lh lh 81 vuqlfjrA ¼iSjk 51 ,oa 54
¼6½ naM+ lafgrk] 1860 && /kkjk 302 && 'ko cjken ugh gks rc Hkh ;fn vfHk;kstui{k ;qfDRk;qDr lansg ls ijs lkfcr dj ns fd vkgr ekj Mkyk x;k gS && vfHk;qDr dks gR;k dk nks"kh vfHkfUk/kkZfjr fd;k tk ldrk gSA ¼2013½ 12 ,l lh lh 551 vuqlfjrA ¼iSjk 55
Ahluwalia, J. -- 1. This Criminal Appeal under section 374 of CrPC has been filed against the judgment and sentence dated 18.5.2010 passed by Additional Sessions Judge, Sevada, Distt. Datia in Sessions Trial No. 67/2006, by which the appellant has been convicted under sections 302 and 201 of IPC and has been sentenced to undergo the life imprisonment and a fine of Rs. 10,000/- and rigorous imprisonment of 2 years and a fine of Rs.1,000/- with default imprisonment respectively.
2. The necessary facts for the disposal of the present appeal in short are that on 26.3.2006, an information was given by Kamal Kishore to police that his younger brother, aged about 20 years, is residing along his maternal aunt Kishori in village Ramdeva. At about 7 in the morning, Charan Singh, his cousin brother came to his village Ramgada and enquired that whether Ramkumar has come or not? When he replied that Ramkumar has not come, then he insisted that he should come to village Ramdeva. He came to Ramdeva, where he was informed by Kishori, that the whereabouts of Ramkumar are not known. Yesterday at about 8 P.M., the son of Bhagwan Singh had taken him with him and from thereafter, he has not come back. Then he, his uncle Badam Singh, Ram Singh, Lakhan, Ramdas all went to the house of Bhagwan Singh and found that no body was there in the house of Bhagwan Singh. Fire was burning near his house. Blood was lying on the roof of the house of Bhagwan Singh, therefore, he got suspicious. He found a bone in the fire therefore, it appears that the dead body of his brother is burning. Therefore, he lodged the report. On the basis of the report, the police started inquest enquiry. During enquiry, it was found that it is a case of murder, therefore, FIR was registered under sections 302 and 201 of IPC During investigation, spot map was prepared, blood stained and plain earth was seized, remains of burnt bones and ash were seized, a calculator from the spot was seized, broken piece of bangles were seized. Senior Scientific Officer, scene of crime, inspected the spot and prepared a report. Blood stained underwear and baniyan of the accused were seized. The statements of witnesses were recorded and after completing the investigation, the police filed a charge sheet against the appellant and Kallu, Chandra Prakash, Siyasharan, and Sheela for offence under sections 302 and 201 of IPC.
3. The trial Court by order dated 8.8.2006, framed charges under sections 302 and 201 of IPC.
4. The accused persons, abjured their guilt and pleaded not guilty.
5. The prosecution, in order to prove its case, examined Ratiram (PW1), Sukhlal (PW2), Kamal Kishor (PW3), Komal Singh (PW4), Mukesh (PW5), Smt. Kishori (PW6), Ram Singh (PW7), Ramadhar (PW8), Dr.K.K. Asthana (PW9), Rajesh Kumar (PW10), V.K. Parashar (PW11), Chandan Singh (PW12), Malkhan Singh (PW13) and Dr. R.P. Soni (PW14). The accused persons, and the appellant did not examine any witness.
6. The trial Court by judgment and sentence dated 18.5.2010, passed in S.T. No.67/2006, acquitted co-accused Kallu, Chandra Prakash, Siyasharan, and Sheela and convicted the appellant for offence under sections 302,201 of IPC and sentenced to undergo the life imprisonment and a fine of Rs.10,000/- and rigorous imprisonment of 2 years and a fine of Rs.1,000/- with default imprisonment respectively.
7. The State has not filed an appeal against the acquittal of co-accused Kallu, Chandra Prakash, Siyasharan and Sheela.
8. Challenging the conviction recorded by the trial Court, the counsel for the appellant submitted that on the basis of the same evidence, the trial Court has acquitted the coaccused persons, thus, it is clear that the evidence of the witnesses was not found reliable. There is no admissible evidence available on record. The case is based on circumstantial evidence and the chain of circumstances is not complete. The dead body of the deceased could not be identified, therefore, it cannot be said that Ramkumar has been kill
