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2001 DIGILAW 46 (CHH)

Laldas Alias Lilardas Sahu v. State Of M. P.

2001-04-19

R.S.GARG, W.A.SHISHAK

body2001
JUDGMENT R.S. Garg, J. 1. This judgment shall dispose of Criminal Appeal No. 9 of 1989 (Laldas Vs. State of M.P.), Criminal Appeal No. 208 of 1989 (Kamal Mahar Vs. State of M.P.) and Criminal Appeal No. 209 of 1989 (Sukhdeo Vs. State of M.P.). 2. The appellants Laldas, Kamal Mahar and Sukhdeo have filed these criminal appeals, being aggrieved by the judgment dated 23-12-1988, passed by Additional Sessions Judge, Khairagarh (Rajnandgaon) in Sessions Trial No. 7 of 1988, convicting them under Section 302 read with Section 34, IPC, and sentencing them to undergo life imprisonment. 3. Appellant Laldas in his criminal appeal has also prayed that the motor-cycle which has been confiscated under the said judgment deserves to be released in his favour, because the prosecution has failed to prove that the motor-cycle was used in commission of the offence. 4. The facts in brief are that on 11-11-87 Hukum Singh (since deceased) left his office for going to his house, but did not reach his home upto 13-11-87, therefore, his wife Smt. Meena Kumari (P.W. 13) informed the fact to Moolchand (P.W. 2), who lodged the report on 13-11-87. The said report was recorded as Ex. P-25 by P.W. 15 R.K. Mishra. On 13-11-87 the dead-body was seen by P.W. 1 Faguadas in the village tank, who in his turn immediately informed the matter to the police. After arrival of the police, notices were given to the witnesses for their appearance and thereafter, the body memo (Panchayatnama lash) was prepared; thereafter, certain articles were recovered from near the body and, thereafter, the body was sent for post mortem. The accused Laldas was arrested, who under his memorandum Ex. P-10 gave certain informations to the police; on the basis of which, co-accused Kamal Mahar and Sukhdeo were also arrested. At the instance of accused Laldas, under Ex. P-3, on 21-11-87, cycle belonging to the deceased, a Jawa Motor Cycle and its registration and insurance certificate, a white shirt and a full-pant, both stained with blood were recovered. The memorandum of Sukhdeo was prepared under Ex. P-11 and at his instance under Ex. P-4 at village Thudera a knife alleged to be stained with blood, cover of the knife, HMT Watch belonging to the deceased, Half-shirt and black full-pant alleged to be stained with blood were discovered. The memorandum, prepared under Section 27 of the Indian Evidence Act, under Ex. P-11 and at his instance under Ex. P-4 at village Thudera a knife alleged to be stained with blood, cover of the knife, HMT Watch belonging to the deceased, Half-shirt and black full-pant alleged to be stained with blood were discovered. The memorandum, prepared under Section 27 of the Indian Evidence Act, under Ex. P-9, at the instance of accused Kamal, from the Navagaon village tank a shirt and slippers belonging to the deceased were discovered. The articles belonging to the deceased were put for identification. The identification parade was conducted by P.W. 5 J.R. Chourasia. In his presence, under Ex P-5, P.W. 13 Smt. Meena Kumari, widow of the deceased identified the slippers, shirt, pant, cycle and wrist watch of the deceased. Thereafter, further investigation was made and after being armed with sufficient evidence against the appellants, the police agency filed the challan against the accused persons. As the accused persons denied the commission of offence, they were put to trial. The prosecution examined as many as 15 witnesses, but the accused did not choose to examine any witness in their defence. After hearing the parties, the learned Trial Court convicted and sentenced the accused person as observed above. 5. Shri B.N. Pandey, learned counsel for the appellants submits that the Court below was absolutely unjustified in relying upon the statements of P.W. 4 Ramvilash, P.W. 8 Kanhaiya and P.W. 14 L.N. Shukla (Investigating Officer), in relation to memorandums and discoveries of the articles. He also submits that from the statements of P.W. 3 Shiv Pujan and P.W. 12 Chhotu, it is at all not proved that the deceased was last seen in the company of the accused. He further submits that the records did not contain any evidence to connect the accused persons with the alleged crime. In relation to the disposal of the property, it is submitted by him that it is not shown on the record that the motor-cycle was used in commission of the offence, therefore, the motorcycle could not be confiscated and the accused Laldas is entitled to the custody of the said motor-cycle, which belongs to him. 6. In relation to the disposal of the property, it is submitted by him that it is not shown on the record that the motor-cycle was used in commission of the offence, therefore, the motorcycle could not be confiscated and the accused Laldas is entitled to the custody of the said motor-cycle, which belongs to him. 6. Shri Ranbir Singh, learned counsel for the State, on the other hand, placing his strong reliance on the memorandums, seizures and the other attending circumstances, submits that the prosecution could successfully bring home the guilt of the accused, therefore, the Trial Court was justified in convicting and sentencing the accused persons. Regarding the motor-cycle, he submits that in view of the statements of P.W. 3 Shiv Pujan, the accused persons did bring the deceased to the motel of Shiv Pujan on the said motorcycle, therefore, motor-cycle was rightly-confiscated. He has prayed for dismissal of the appeal. We have heard the parties at length and have perused the records. 7. P.W. 3 Shiv Pujan is working as servant in a road-side motel (Daba) belonging to one Bhatia. According to him, four persons came on a motorcycle, had their food and, thereafter, left. According to him, the three persons standing in the dock did come with the fourth man. He, however, was unable to say anything about the identity of the fourth-man. In his cross-examination, he also could not identify the motor-cycle on which all the four persons had come to his motel. The prosecution in its wisdom has also examined P.W. 12 Chhotu, working at the said motel. The said Chhotu did not support the prosecution, therefore, he was declared hostile. 8. To prove that the accused persons were last seen in the company of the deceased, the prosecution had examined P.W. 11 Keshav Ram. The said Keshav Ram stated before the Court that he was informed by Gulab Yadav that the accused Laldas had taken the deceased Hukumsingh with him. It is worth noting that Gulab Yadav has not been examined by the prosecution to confirm the statement of P.W. 11 Keshav Ram and this statement that P.W. 11 Keshav Ram was informed by Gulab Yadav, is not found in the case diary statements of P.W. 11 Keshav Ram. 9. It is worth noting that Gulab Yadav has not been examined by the prosecution to confirm the statement of P.W. 11 Keshav Ram and this statement that P.W. 11 Keshav Ram was informed by Gulab Yadav, is not found in the case diary statements of P.W. 11 Keshav Ram. 9. In absence of positive statements that Hukum Singh was seen in the company of the accused persons or any statement by P.W. 3 Shiv Pujan and P.W. 12 Chhotu that the fourth-man in the company of the accused persons was Hukum Singh, it would not be possible for this Court to hold that these two persons have seen the deceased in the company of these accused persons. Similarly, in absence of examination of Gulab Yadav to confirm the statement of P.W. 11 Keshav Ram and made the same admissible in evidence, the statement of Keshav Ram P.W. 11 that he was informed by Gulab Yadav that the accused Laldas had taken the deceased with him, cannot be accepted. We are unable to hold that the deceased Hukumsingh was last seen in the company of the accused persons. 10. P.W. 4 Ramvilash and P.W. 8 Kanhaiya are the persons in whose presence, P.W. 14 L.N. Shukla had prepared the memorandums of the accused persons and effected the seizure. According to P.W. 4 Ramvilash, he was called by P.W. 14 L.N. Shukla, in his presence certain statements were given by the accused persons and thereafter, certain articles, at the instance of the accused persons were recovered under Exs. P-3, P-4 and P-12. On this point, he is duly corroborated by P.W. 8 Kanhaiya. According to P.W. 8 Kanhaiya, different memorandums of the accused persons were prepared and, thereafter, the police had gone to the village tank, Supela and Village Thudera, from where incriminating articles were recovered. P.W. 14 L.N. Shukla has also proved that after preparation of the memorandums of the accused Laldas under Ex. P-10, certain articles were discovered which were seized under Ex. P-3. Similarly, under memorandums Ex. P-9, prepared at the instance of the accused Kamal, certain articles were discovered and were seized under Ex. P-12. He has further stated that the clothes of this accused were recovered under Ex. P-18. He has further staled that at the instance of the accused Sukhdeo, his memorandum was prepared at Ex. P-3. Similarly, under memorandums Ex. P-9, prepared at the instance of the accused Kamal, certain articles were discovered and were seized under Ex. P-12. He has further stated that the clothes of this accused were recovered under Ex. P-18. He has further staled that at the instance of the accused Sukhdeo, his memorandum was prepared at Ex. P-11 and at his instance certain articles were discovered which were seized under Ex. P-4. 11. On 21-11-87, in presence of P.W. 4 Ramvilash and P.W. 8 Kanhaiya, the investigating officer, L.N. Shukla (P.W. 14) had seized, the Atlas cycle, alleged to be belonging to the deceased, Jawa Motor Cycle and its registration and insurance, a white shirt and full pant alleged to be blood stained, belonging to accused Laldas. On 2141-87 itself, under Ex. P-4 at the instance of the accused Sukhdeo a knife, half-shirt and a black pant alleged to be blood stained cotton cover of the knife and HMT Watch alleged to be belonging to the deceased were seized. Accused Kamal was taken to the village tank, from where the dead-body was earlier recovered. Accused Kamal in his turn, discovered a shirt and slippers from under the water. The shirt and slippers were alleged to be belonging to the deceased. The clothes of the accused Kamal were recovered under Ex. P-18. 12. Learned counsel for the appellants has challenged these memorandums and discoveries. According to him, P.W. 4 Ramvilash and P.W. 8 Kanhaiya are village Kotwars, therefore, they cannot be relied upon. 13. After going through their entire statements, we are unable to hold that simply because these two persons are village Kotwars, they should be disbelieved. Whether a person is to be relied upon or not would not depend upon where he works or what is his station or status but would depend upon whether he is a truthful witness or not. Irrelevant or a very small contradictions would not make a man ureliable. Even if a man comes from a very lower strata of the society, he cannot be disbelieved in comparison to a man who comes from higher pedestal of the society. Before accepting or rejecting the statements of a particular witness, the Court has to see whether a particular person can be relied upon or not and whether the circumstances are creating a shadow of doubt on the reliability of the said person. 14. Before accepting or rejecting the statements of a particular witness, the Court has to see whether a particular person can be relied upon or not and whether the circumstances are creating a shadow of doubt on the reliability of the said person. 14. In the present case, P.W. 4, Ramvilash and P.W. 8 Kanhaiya could stand tough test of cross-examination and have proved that in their presence the memorandums were prepared and certain articles were discovered at the instance of each of the accused. Even otherwise, there is no good reason to reject, the testimony of the Investigating Officer, P.W. 14 L.N. Shukla. 15. After going through the statements of P.W. 4 Ramvilash, P.W. 8 Kanhaiya and P.W. 14 L.N. Shukla, we are of the opinion that they are truthful witnesses and the Court below was not unjustified in relying upon their testimonies. 16. The question for further consideration is whether the articles discovered at the instance of the accused persons can connect them with the alleged crime. From the statement of P.W. 5 J.R. Chourasia, it would appear that under Ex. P-5, he had conducted the identification proceedings of particular articles. The Atlas Cycle discovered at the instance of accused Laldas, the shirt and slippers of the deceased discovered at the instance of accused Kamal, the wrist watch discovered at the instance of Sukhdeo and the trousers of the deceased seized from the spot were put for identification. According to him, Meena Kumari, widow of the deceased had identified these articles. P.W. 13 Meena Kumari, had identified the said articles in the said proceedings. It was suggested to P.W. 5 J.R. Chourasia that the proceedings vitiated because he did not mix the proper number of articles during the identification proceedings, but the said suggestion was denied by J.R. Chourasia clearly stating that sufficient number of articles were mixed with the article recovered to be identified. After going through the statements of P.W. 5 J.R. Chourasia, we have no hesitation in our mind to hold that the proceedings were conducted in accordance with law and did not stand vitiated. 17. P.W. 13, Meena Kumari, widow of the deceased had identified all the 5 articles. In her lengthy cross-examination, it was suggested to her that she could not identify the articles. In Para 7 of her statement, she had given the reasons for identifying the wrist watch and the cycle. 17. P.W. 13, Meena Kumari, widow of the deceased had identified all the 5 articles. In her lengthy cross-examination, it was suggested to her that she could not identify the articles. In Para 7 of her statement, she had given the reasons for identifying the wrist watch and the cycle. Similarly, she had given proper reasons for identifying the shirt, the trousers and the slippers belonging to the deceased. She was candid when she said that the articles belonged to her husband because her husband was using the said articles in day-to-day life. True, it is that for particular articles she could not provide the particular identification marks, but non-disclosure of those identification marks would not make the said identification useless because, a person who uses the articles every day or the other person who is seeing the said articles every day can identify those articles when the same arc produced before him for identification. According to P.W. 13 Meena Kumari, the husband was using the cycle every day and the wrist watch was given to the deceased by her mother. She had also stated that the deceased was wearing the said trousers, shirt and slippers when he left the home. 18. We find no reason to disbelieve the statements of P.W. 13 Meena Kumari. The learned Court below was not unjustified in relying upon the statement of P.W. 5 J.R. Chourasia and P.W. 13 Meena Kumari. From the above narration and discussion, it would clearly appear that particular articles belonging to the deceased were recovered at the instance of the accused from their possession or from a place which was within the exclusive knowledge of the accused persons. 19. Particular articles which were alleged to be stained with blood were sent for their chemical analysis. Ex. P-23 is the report of the Forensic Science Laboratory. They had examined as many as 11 articles. Article C the shirt belonging to the accused Kamal was found stained with blood. Similarly, the full pant article D-2 belonging to the accused Kamal was also found stained with blood. Article A-2, the trousers recovered at the instance of the accused Laldas was also found stained with blood. Similarly, knife recovered from accused Sukhdeo was also found stained with blood. According to the report, the underwear and the vest of the deceased were also stained with blood. Article A-2, the trousers recovered at the instance of the accused Laldas was also found stained with blood. Similarly, knife recovered from accused Sukhdeo was also found stained with blood. According to the report, the underwear and the vest of the deceased were also stained with blood. A full pant recovered from the spot was also stained with blood. The shirt discovered at the instance of the accused Kamal was also stained with blood. The report of FSL would make it clear that the clothes recovered from two of the accused and knife recovered from the third accused were stained with blood. The accused persons have simply challenged the recoveries, but have not stated before the Court as to how their clothes were stained with blood. The discovery of incriminating articles and identification of the items belonging to the deceased from possession of the accused would clinch the accused. 20. After giving our anxious consideration to the arguments of the parties and after going through the complete records, we are unable to hold that the Court below was wrong in convicting and sentencing the accused persons. So far as confiscation of the motor cycle is concerned, in absence of positive proof on the record that the said motor cycle was used in commission of the offence, the Court below was not justified in directing confiscation of the said motor cycle. The order relating to confiscation deserves to and is accordingly set aside. The motor cycle be returned either to the accused Laldas or to any person under his instructions. 21. The appeal so far as it relates to conviction and award of sentence to the appellants is concerned is dismissed, but in relation to the disposal of the property, it is allowed.