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Madhya Pradesh High Court · body

2002 DIGILAW 1072 (MP)

RAJENDRASINGH v. STATE OF M. P.

2002-12-05

BHAWANI SINGH, S.L.KOCHAR

body2002
S. L. KOCHAR, J. ( 1 ) BY this common judgment, both the aforesaid appeals are disposed of. ( 2 ) THE appellants have preferred these appeals against the judgment dated 18-11-95 rendered by VII Addl. Sessions Judge, Indore in Sessions Trial No. 231/93 thereby convicting the appellants Rajendra and Prakash under Section 302 of the Indian Penal Code and appellant Sunil alias Narendra under Section 302 read with Section 34 of the Indian Penal Code and sentencing them each to undergo imprisonment for life. He, however, acquitted the appellants from the charge under Sections 459 and 394 of the Indian Penal Code. ( 3 ) SHORTLY stated, the facts of the prosecution case before the trial Court were that on 7-1-1992 at about 3. 00 p. m. maid-servant of Pukhrajbai named Rekhabai informed Ramprasad Painter (PW-14) that the door of Pukhrajbai's house is bolted and on giving ring, there was no response to it. She also informed that the blood was coming out from underneath the door. This fact was informed to Mahesh (PW-9) who in turn gave this information on telephone to the son of the deceased named Vinod (PW-6 ). He returned to his house, finding the door bolted from inside, broke open the rear door of the house and found his mother Pukhrajbai dead having so many injuries on her person. He also found that four golden bangles, one golden locket, one golden ring and Pajeb of silver which his mother was wearing on that day were missing from her body. He lodged the report (Ex. P/14) with the Police. The dead body was sent for postmortem examination. Postmortem Report is Ex. P/27, according to which, the deceased died due to shock and haemorrhage because of stab and incised wounds, appellant Prakash was arrested on 20-1-92 from Kanishka Hotel, situated at Chhoti Gwal Toli, Indore, where he was staying from 5-1-92 to 8-1-92. From the shop of M/s. Ashok Brothers, Indore two golden bangles, one locket, a Jhumki were recovered and seized by the police, where it is alleged that appellant Prakash had sold them. At his instance, knife was also recovered. Appellant Sunil alias Narendra was arrested on 29-1-92 and appellant Rajendra Singh was arrested from Gopal Mandir, Ujjain. At his instance also a knife and a silver Pajeb were recovered. After usual investigation, the accused/appellants were charge-sheeted. After trial, the learned Addl. At his instance, knife was also recovered. Appellant Sunil alias Narendra was arrested on 29-1-92 and appellant Rajendra Singh was arrested from Gopal Mandir, Ujjain. At his instance also a knife and a silver Pajeb were recovered. After usual investigation, the accused/appellants were charge-sheeted. After trial, the learned Addl. Sessions Judge convicted and sentenced them as mentioned hereinabove. ( 4 ) WE have heard Senior Counsel Shri Jaisingh assisted by Shri Viveksingh appearing for the appellants and Shri G. Desai, learned Deputy Advocate General for the respondent/state and perused the entire record. ( 5 ) CONTENTION of the learned counsel for the appellants is that the appellants have been falsely implicated on suspicion and there is no complete chain of circumstances pointing out unerringly towards the guilt of the appellants. He vehemently argued for acquittal of the appellants. ( 6 ) AS against this, learned Deputy Advocate General Shri Desai has supported the judgment of conviction passed by the learned trial Court. ( 7 ) NOW we proceed to examine the evidence available on record against the appellants. Admittedly there is no eye-witness of the incident and the case is based on circumstantial evidence against appellant Sunil, except recovery of knife, his pant and shirt on 29-1-92, there is no other evidence available on record. In our considered view, on the basis of this evidence, he cannot be convicted for the offence under Section 302 read with Section 34 of the Indian Penal Code. On the basis of this evidence, it cannot be said that he was present on the scene of occurrence along with other two accused persons and in furtherance of their common intention, took part in commission of murder of deceased Pukhrajbai. On knife as well as the clothes, neither human-blood nor blood-group tallying with the blood-group of deceased was available in the Serologist's Report. Therefore, this circumstance alone is not sufficient to come to the inevitable conclusion that the appellant Sunil was present on the scene of occurrence and took part in the same. ( 8 ) SUPREME Court in the case of Raghuvir Singh v. State of M. P. , AIR 1980 Cri LR 186 (sic) held that the recovery of knife and shirt having human-blood was not sufficient to convict the accused. Also See : Kansa Behera v. State of Orissa, AIR 1987 SC 1507 : (1987 Cri LJ 1857 ). ( 8 ) SUPREME Court in the case of Raghuvir Singh v. State of M. P. , AIR 1980 Cri LR 186 (sic) held that the recovery of knife and shirt having human-blood was not sufficient to convict the accused. Also See : Kansa Behera v. State of Orissa, AIR 1987 SC 1507 : (1987 Cri LJ 1857 ). Therefore, the appellant Sunil is entitled for acquittal. ( 9 ) AS regards the case of Rajendra, he was arrested on 7-2-92 i. e. after two months of the alleged incident. At his instance, on his memorandum statement (Ex. P/7), one silver PAJEB was seized by PW-19 D. S. Kushwaha and the said PAJEB has been duly identified by prosecution witness PW-10 Lalchand, husband of deceased in the Test Identification Parade. The T. I. Parade was held by Naib Tehsildar PW-15 Smt. Sushila vide Exs. P/17 and P/18 and recovery was effected by PW-19 S. I. D. S. Kushwaha on the basis of his memorandum-statement under Section 27 of the Evidence Act. ( 10 ) BY recording of memorandum-statement Ex. P/7 and seizure of Pajeb with cash-book has been duly supported by Panch-witness PW-3 Arun Kumar. He has also identified the silver Pajeb in Court. We find nothing in his statement to disbelieve him. Learned trial Court in paras 53 and 54, while discussing the evidence of extra judicial confession made by this appellant Rajendra, before PW-13 Shantibai and PW-22 Kailash, who have not supported the prosecution case, placed reliance on evidence of extra judicial confession on the basis of their statements recorded under Sections 161 and 164 of Cr. P. C. Learned trial Court has failed to consider that both these statements are not the substantive piece of evidence and, therefore, could not be relied upon. ( 11 ) THIS Pajeb was seized from PW-11 Satyanarayan who had purchased the same and entered this transaction in his cash-book (Ex. P/9), which bears the signature of appellant Rajendra, and the same has been proved by PW-19 D. S. Kushwaha. This recovery has been challenged by the defence on the ground that in the cash-book dated 9-1-92, the entry of purchase was available after final account balance of the day. This shows that the entry was made later on at the instance of the police. This recovery has been challenged by the defence on the ground that in the cash-book dated 9-1-92, the entry of purchase was available after final account balance of the day. This shows that the entry was made later on at the instance of the police. We are not impressed by this argument because, this could be checked on the basis of balance shown on 10-1-92. But, that evidence is not available on record and the defence did not elucidate; from this witness, but there is no cross-examination on this point. ( 12 ) NAIB Tehsildar PW-15 Smt. Gehlot has deposed that Lalchand (PW-1), husband of deceased has duly identified this PAJEB in the Test Identification Parade. It is pertinent to note here that in the First Information Report (Ex. P/14) lodged by PW-6 Vinod, son of the deceased, immediately after the incident, fact of missing of PAJEB from the body of deceased is duly mentioned. So, there is absolutely no room for doubt to hold that the seized silver PAJEB was the PAJEB of the deceased and the same was recovered at the instance of the appellant Rajendra. But, the question remains for consideration, whether on the basis of this recovery after two months Rajendra could be convicted for the offence under Sec. 302 of the Indian Penal Code. In absence of any other evidence regarding his participation in the alleged incident. ( 13 ) ONE knife also is shown to have been seized from Rajendra, but no human blood was found in the Serologist's Report. Therefore, on the basis of the solitary evidence of recovery of PAJEB, at the most presumption against this appellant Rajendra under Section 114 of the Evidence Act would be that of receiver of stolen property. See Surjit Singh v. State of Punjab, AIR 1994 SC 110 : (1993 Cri LJ 3901), Sulekh Chand v. Suresh Chand, AIR 1991 SC 380 : (1991 Cri LJ 469) and Satnarain Sao v. State of Bihar, AIR 1972 SC 1561 : (1972 Cri LJ 1048 ). ( 14 ) WE hold accused/appellant Rajendra guilty of the offence punishable under Section 411 of the Indian Penal Code and sentence him to the period already undergone. He is on bail. During the course of trial he remained in jail for 138 days and for one month after conviction. He is also sentenced to pay a fine of Rs. 2,000/ -. He is on bail. During the course of trial he remained in jail for 138 days and for one month after conviction. He is also sentenced to pay a fine of Rs. 2,000/ -. In default of payment of fine, he shall suffer R. I. for one year. ( 15 ) THE appellant Prakash was arrested on 20-1-92. At his instance golden bangles, golden chain and ear-rings have been seized. Descriptions of these articles are properly mentioned in the First Information Report (Ex. P/14) lodged by PW-6 Vinod, son of the deceased. He also stated that his deceased mother Pukhrajbai was wearing these ornaments on the date of incident. Appellant Prakash was arrested by Town Inspector PW-24 Anoop Mishra from Kanishka Hotel where he was stayed from 5-1-92 to 8-1-92. Immediately after his arrest, on his disclosure-statement, ornaments were seized. PW-5 Omprakash has supported about recording of memorandum statement Ex. P/13 and in pursuance thereof, seizure of ornaments vide seizure Ex. P/12. Knife and T-shirt were also seized at his instance. These ornaments were sold by appellant Prakash to Ashok Brothers and the same were seized from the said shop owned by PW-12 Sunil Kumar Jain. PW-12 Sunil Kumar Jain has identified the appellant and also deposed about purchase of ornaments from him. There is no reason to disbelieve this witness who has also identified the ornaments in Court. These ornaments were also identified in Test Identification Parade (Exs. P/17 and P/18) in presence of Naib Tehsildar PW-15 Smt. Sushila, by PW-10 Lalchand, husband of deceased. ( 16 ) ON the basis of evidence available on record, it is easy to discern that the deceased was wearing these ornaments at the time of her death and same were recovered at the instance of appellant Prakash, at an early date from the date of incident. Appellant Prakash has not furnished any explanation as to how he came in possession of these ornaments. Town Inspector PW-24 Anoop Mishra and PW-2 Nagesh Kumar Khanna have also deposed that Prakash stayed in Kanishka Hotel, Chhoti Gwal Toli, Indore on 5-1-92 upto 8-1-92. The Register (Article A) has been seized show in the entry to this effect. It would be apposite to mention that Prakash is not a resident of Indore and deceased Pukhrajbai was his aunt and had visiting terms. The Register (Article A) has been seized show in the entry to this effect. It would be apposite to mention that Prakash is not a resident of Indore and deceased Pukhrajbai was his aunt and had visiting terms. PW-6 Vinod has stated that on the date of incident, he had been to his house between 1. 30 and 2. 00 p. m. At that time, his deceased mother told him about visiting of Prakash who had come for demanding money. ( 17 ) THIS evidence has been criticised by learned defence counsel on the ground of omission in the First Information Report, but we find it insignificant because, the First Information Report is not an encyclopaedia of whole incident. In the present case, substantial material and important details are mentioned in the First Information Report. ( 18 ) ON information furnished by Prakash one knife and shirt were also seized. In FSL report, blood was found on these articles. Dr. PW-20 R. K. Singh has given opinion that from the seized knife, injuries on the person of deceased could be possible. ( 19 ) ON the basis of the evidence available on record i. e. visit of Prakash at the house of deceased on the date of incident, his stay in the hotel on the same day, his arrest within a short interval on the and recovery of three ornaments i. e. golden bangles, chain with pandel and golden earring coupled with bloodstained knife and clothes are unerringly pointing out towards his involvement in the murder of deceased Pukhrajbai. He was nephew and knowing well about her availability at the house. We, therefore, hold him guilty of the offence punishable under Section 302 of the Indian Penal Code and affirm the conviction and sentence passed against him by the learned trial Court. ( 20 ) IN the result, both these appeals are allowed in part. Conviction and sentence of the appellant Prakash are affirmed. Conviction and sentence of appellant Sunil alias Narendra are set aside. He is on bail. His bail bonds shall stand discharged. Appellant Rajendra is acquitted from the offence with which he has been charged and sentenced. Instead, he is convicted for the offence under Section 411 of the Indian Penal Code and is sentenced to the period already undergone with fine of Rs. 2,000/ -. In default of payment of fine, he shall suffer addl. His bail bonds shall stand discharged. Appellant Rajendra is acquitted from the offence with which he has been charged and sentenced. Instead, he is convicted for the offence under Section 411 of the Indian Penal Code and is sentenced to the period already undergone with fine of Rs. 2,000/ -. In default of payment of fine, he shall suffer addl. R. I. for one year. ( 21 ) APPELLANTS Sunil and Rajendra are on bail. Their bail bonds shall stand discharged. Order accordingly. .