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2009 DIGILAW 201 (MP)

Babloo @ Rajendra v. State of M. P.

2009-02-10

A.P.SHRIVASTAVA, SUBHASH SAMVATSAR

body2009
JUDGMENT Samvatsar, J. -- 1. This judgment shall govern the disposal of the aforesaid three appeals. as they are arising out of the common judgment dated 30.1.2000 passed by the First Additional Sessions Judge, Ashoknagar, district Guna in ST No. 173/97 , whereby the Sessions Court has convicted all the three appellants-accused for commission of offences under sections 364A, 302, 397 and 201 of IPC, and sentenced them to undergo imprisonment for life with fine of Rs.2,000/- each for commission of offence under section 302 of IPC and on failure to deposit fine amount to undergo another terms of one year's RI, they are also sentenced for imprisonment of life with fine of Rs.2,000/- each for commission of offence under section 364A of IPC and on failure to deposit fine amount to undergo one year's RI, again seven years RI for commission of offence under section 397 of IPC, and five years RI with fine of Rs. l,000/- each, for commission of offence under section 201 of IPC and on failure to deposit fine amount to undergo another period of six month's RI. All the sentences were directed to run concurrently. 2. As per the prosecution case, a minor girl named Juhi aged around two and half years d/o Jinendra Jain (PW3) was playing in front of her house on 12.2.1996 and thereafter she was missing and not found. PW 1 Sunil Kumar Jain, uncle of Juhi lodged the complaint at PS Shadora at about 11:30 pm on the same day which is Ex.P-1. On 13.2.1996, a telephonic message was received by the parents of Juhi demanding a sum of Rs.50,000/- towards ransom and stating that the letter is kept near the well and the action be taken in accordance with the contents of the said letter. When this information was given to the police, the police registered Crime No. 18/96 for commission of offence under section 365 of IPC. The letter was seized from the well (Ex.P-3), as per the seizure memo (Ex.P-2). The police after investigation could not trace the accused and hence FR was submitted on 15.11.1996. 3. On 23.2.1997 some informant gave an information to the police and investigation was again re-started. All the three accused were arrested on 8.3.1997. The letter was seized from the well (Ex.P-3), as per the seizure memo (Ex.P-2). The police after investigation could not trace the accused and hence FR was submitted on 15.11.1996. 3. On 23.2.1997 some informant gave an information to the police and investigation was again re-started. All the three accused were arrested on 8.3.1997. During the investigation, these three accused admitted that they have committed murder of Juhi by throttling her neck and stated that they have thrown her dead body in the well owned by Mohan Singh Raghuvanshi. On the basis of the information given by the accused, the memorandums under section 27 of the Evidence Act were prepared vide Ex.P-9, P-1O and P-ll on 8.3.1997 at 12: 10, 12:05 and 12:00 p.m., respectively. On the basis of these memorandums, the well of Mohan Singh was searched and some bones were recovered from the well. These bones were of a young child. A Pajeb (silver ornaments) which was worn by the child was recovered from one of the accused named Raju. After seizure of the bones and the said ornaments, the police registered the case against all the three accused for commission of offences under sections 365,302,397 and 201 of IPC, and filed challan against them. The matter was committed to the Court of Sessions. The Sessions Court framed charges against the accused-appellants for the alleged offences under sections 364A in the alternative 365,302,397 and 201 of IPC. The Sessions Court after framing charges and after recording of the evidence, convicted the present appellants as stated above. Aggrieved by their conviction and sentence as mentioned herein above, all the three appellants have preferred these appeals. 4. Shri R.K. Sharma and Shri M.M. Tripathi, learned counsel appearing on behalf of the appellants contended that the findings of conviction arrived at by the Sessions Court are not based on any legal evidence and thus the conviction of the appellants cannot be sustained in the eyes of law, in view of the evidence on record. Shri D.R. Sihare, learned P.L., representing the State-respondent, on the other hand, supported the judgment of the Sessions Court and contended that the findings of the Sessions Court are based on sound reasonings, supported by cogent and reliable evidence, hence no interference in the judgment is called for. 5. Shri D.R. Sihare, learned P.L., representing the State-respondent, on the other hand, supported the judgment of the Sessions Court and contended that the findings of the Sessions Court are based on sound reasonings, supported by cogent and reliable evidence, hence no interference in the judgment is called for. 5. In the present case the prosecution to prove its case had examined as many as fifteen witnesses while the accused in their evidence had examined five witnesses. Having gone through the evidence on record, we find that in the present case there is no eye-witness to the alleged incident of kidnapping and the case is totally based on the circumstantial evidence. From perusal of the impugned judgment of the Sessions Court, we find that the Sessions has found the evidence proved on the basis of the following circumstances which are extracted below: (i) that, the letter addressed to the father of Juhi was written by accused Babloo; (ii) that, Babloo has telephoned father of the girl for demanding money (iii) that, the dead body of Juhi was recovered at the instance of accused; and (iv) that, the silver ornaments were recovered at the instance of accused 6. Learned counsel appearing for the appellants contended that none of the said circumstances are legally proved by the prosecution. It is submitted that the prosecution has failed to prove that the bones recovered by the police from the well were of abductee Juhi. He invited attention of this Court to the statement of PW14 Dr. D.K. Satpathi, who says that on 27.8.1997, he was working in the department of Medico Legal Institute, Bhopal He stated that the bones were sent by the police Guna to him for examination in connection with Crime No. 18/96 alongwith the letter. In para 2 of his statement he stated that the bones were of a small child and the age of the child must be between 2-1/2 to 3 years, but it was not possible for the doctor to ascertain the sex of the body and therefore from the statement of this doctor it is not proved that the bones were of a female child. The cause of death could not be opined by the doctor, hence learned counsel for the appellants contended that the prosecution has failed to prove that it was homicidal death. The cause of death could not be opined by the doctor, hence learned counsel for the appellants contended that the prosecution has failed to prove that it was homicidal death. Therefore, according to the counsel for the appellants the offence under section 302 of IPC, is not made out. 7. It is true that unless and until the prosecution proves that a person dies of a homicidal death, an offence under section 302 cannot be made out, but that alone cannot be a ground for acquittal of the accused and this Court will have to consider other aspects ofthe matter. The most important evidence in the present case is that of recovery of dead body of abductee and silver ornaments at the instance of the accused vide memorandums Ex.P-9, P-I0 and P-11. From perusal of the aforesaid memorandums, it appears that these memorandums have been prepared by the police at 12:00, 12:05 and 12: 10 p.m. and the Panchnama (Ex.P-12) for search of the well was prepared at 12:40 p.m., on 8.3.1997. The contention of the learned counsel for the appellants is that this evidence is not admissible because from the evidence it is clear that before recovery of the dead body and the ornaments, number of persons including the police were aware of the fact that the dead body was lying in the well of Mohan Singh. In support of his argument, learned counsel for the appellants invited attention of this Court to the statement of PW3 Jinesh Kumar who is complainant in the instant case and father of deceased Juhi. In para 6 of his statement he stated that at about 10-11 0' clock on 8.3.1997 the police informed him that the killers of his daughter are arrested and they have thrown the dead body of his daughter in the well of Mohan Singh in village Shadora. Thereafter, the well was made empty by the police and the bones were recovered. The said bones were seized by the police. From the statement of this witness it appears that the police at least two hours before the preparation of the aforesaid memorandums under section 27 of the Evidence Act, was aware of the fact that the dead body is lying in the well of Mohan Singh. Learned counsel for the appellants has also referred to para 20 of the statement of PW5 Shabbir. Learned counsel for the appellants has also referred to para 20 of the statement of PW5 Shabbir. In para 20 of his statement, this witness deposed that in village Shadora the news was spread that the kidnappers of girl Juhi are arrested by the police, but it was not known by that time that the dead body of Juhi was lying in the well and the police has not recorded any of his statement in that respect. In para 22, this witness has stated that only one memorandum under section 27 was prepared by the police and he has signed that memorandum. He states about 15-20 minutes were spent in preparing the said memorandum and thereafter all of them went to the well. In para 27 this witness says that he knows accused Raju. He admits that prior to 8.3.1997 he is facing trial for commission of theft which was initiated on the basis of the report lodged by Bhagwat Singh. Then he resiled from his earlier version and said that the report against him was not lodged by Bhagwat Singh but it was lodged by Amar Singh. He denies that in that case Raju was also witness and therefore he is in inimical terms. In para 31 it is stated by him that at about 10 in the morning he was at his house and the police constable had come to him and told that the dead body of Juhi is thrown by the accused and the dead body was to be recovered from the well and the police asked him to be witness to the said recovery. He says that the constable told him that the accused have admitted their guilt and asked him to come to the police station. Thus, from perusal of para 31 of the statement of this witness it appears that at about 10 in the morning, the police had informed him that the dead body of Juhi is lying in the well: 8. PW7 Mohan is another witness in the present case. In para 7 of his statement he states that the well is situated at a motor stand and anyone can have access to the said well. He denies that any skeleton was recovered from the well. The most important witness in this connection is PW 13, i.e., the Investigating Officer Sunil Kumar Khemariya, who says that the memorandums. In para 7 of his statement he states that the well is situated at a motor stand and anyone can have access to the said well. He denies that any skeleton was recovered from the well. The most important witness in this connection is PW 13, i.e., the Investigating Officer Sunil Kumar Khemariya, who says that the memorandums. Ex.P-9, P-10 and P-11 were prepared at the instance of accused by him and thereafter they went to the well and the well was made empty with the assistance of 3-4 persons and thereafter the dead body was found in the well. In para 14 of his statement he states that after arrest of the accused the proceedings were completed by videography near the well and in the videography his higher officials were shown to be present. He says that on 8th of this month in the morning he informed his superiors that the accused are arrested and they have admitted the guilt. On this information, his higher officers reached the well at about 9:10 O'clock in the morning. This information was also given to the SDO about the videography in which the photographs of his higher officials were taken. In para I5 this witness deposed that the public was aware of this action and at around 9 in the morning about 1000-500 people were collected near the well. They were residents of village Shadora. In para 16 he states that he has not called the owner of the well and his son Rajendra. He asked Rajesh s/o Mohan Singh to keep the well empty and he got the well empty with the help of engine. He further says that the memorandum under section 27 of the Evidence Act was recorded in the presence of the public and two witnesses have signed the said memorandum. He further says that he took about 5-7 hours for getting the well empty. In para 21 he has stated about the forms of recovery. 9. From reading of the statement of this witness particularly para 14, it is clear that information about lying of dead body in the well was vailable with the police at about 8 in the morning when higher officers were informed that the accused have admitted their guilt and admitted the fact that they have thrown the dead body in the well. The villagers were also aware of this fact and about 1000-500 people collected near the well at about 9 while from the memorandums (Ex.P-9, P-l 0 and P-11) it appears at these memorandums were recorded after 12 O'clock. 10. In a case of Raja Khima v. State of Saurashtra [ AIR 1956 SC 217 ], the apex Court has considered the admissibility of the evidence under section 27 and in para 20 held that the discovery of incriminating articles alleged to have been recovered by the accused is inadmissible in evidence if the police already knew where they were hidden. Thus, as per the aforesaid judgment of the apex Court if the police already knows about the place where the articles are hidden then the evidence about the recovery under section 27 of the Evidence Act at the instance of the accused is not admissible. 11. The next judgment relied on by the learned counsel for the appellants is in the case of Ram Gopal v. State of M.P. [ 2001(2) JLJ 192 ], wherein this Court has held that once the fact is discovered from the other sources there can be no fresh discovery even if relevant information is extracted from the accused and the Court has to be watchful that the protection of sections 25 and 26 of the Evidence Act is not whittled down. There must be a recovery in pursuance of the information furnished by the accused and that information should not have been previously known to the police. The discovery of hidden incriminating articles said to have been recovered by the accused is inadmissible in evidence if the police already knew where they were hidden. If the information is received from a witness to whom the accused had made an extra-judicial confession, then discovery of such hidden incriminating articles under section 27 is immaterial. The same proposition has been laid down by the apex Court in the case of Sukhvinder Singh v. State of Punjab [ (1994)5 SCC 152 ], and in case of Vijender v. State of Delhi [ (1997)6 SCC 171 ]. Thus, it is settled law that if the police is already aware about the hidden of incriminating articles then discovery of those articles under section 27 of the Evidence Act is immaterial and cannot be relied upon for convicting the accused. 12. Thus, it is settled law that if the police is already aware about the hidden of incriminating articles then discovery of those articles under section 27 of the Evidence Act is immaterial and cannot be relied upon for convicting the accused. 12. So far as recovery of ornaments from accused Raju is concerned, the witness to the said recovery is not examined by the prosecution. The said witness Chhotu is examined by the defence as DW4, who says that the Station Officer Chemariya has not seized any articles in his presence. Thus, the recovery of the alleged articles is also not proved in the present case. 13. Now, the next circumstance is about the identification of the accused by PWI0 namely Sharafat Khan. This witness has identified accused Babloo in the test identification parade conducted by the police. This witness was relied upon by the Sessions Court on the ground that 15 days after the kidnapping the sketch of accused Babloo was drawn up at the instance of this witness which is Ex.P-28. This witness in the Court has deposed that on 4.12.1997 he went to the jail for identification of the accused. The identification parade was conducted by the Tehsildar in which 20 persons were included and he was asked to identify the accused and he has identified Babloo alias Mangeri alias Rajan. He also identified accused Babloo in the doc. This witness has no where stated that the sketch (Ex.P-28) was prepared at his instance. Apart from that the person who has prepared the said sketch on computer is also not examined by the prosecution. Therefore, the Sessions Court has committed an error in holding that the said sketch was drawn up at the instance of this witness merely because the Investigating Officer in his statement has stated that this sketch was drawn up at the instance of PW 10 Sharafat Khan. From perusal of his entire statement of this witness it is clear that this witness has no where stated that the sketch was prepared at his instance. So far as test identification parade is concerned, the said TIP was conducted in the jail on 412.1997 when the accused where arrested on 8.3.1997. Thus, the identification parade was conducted after lapse of nine months 14. Now, this Court has to consider as to what is the impact of belated identification. So far as test identification parade is concerned, the said TIP was conducted in the jail on 412.1997 when the accused where arrested on 8.3.1997. Thus, the identification parade was conducted after lapse of nine months 14. Now, this Court has to consider as to what is the impact of belated identification. Apart from that from perusal of the statement of PW 10 Sharafat Khan and the I.O. Sunil Khemariya (PW13) it is clear that there is no evidence whatsoever to show that the face of the accused was covered till identification. In a case of Rajveer v. State of U.P. [AIR 1998 CrLJ 1588 ], the apex Court has held that when there is no explanation or any witness is produced to state that the accused is kept baparda after first remand, then the identification cannot be relied upon. In a case of State of M.P v. Chamru alias Bhagwandas [ 2001(2) JLJ 161 ], this Court has considered the evidence of identification parade and held that if the accused is not kept baparda after his first remand, then the identification proceedings conducted during investigation by the police stands vitiated. In this case, this Court held that the gravity of the offence would not relax the standard of proof required for conviction, the standard being that the evidence should prove beyond any reasonable doubt that this accused was the author of the crime. It was further held that in the instant case, the standard has not been achieved and for the reasons stated earlier the evidence of the three child witnesses does not establish that they had identified the assailant that night. Ultimately it was held that the identification held during investigation was useless and the evidence about recovery of blood stained articles too is of no consequence. 15. Again, in a case of Ravi @ Ravichalldrall v. State Rep. by Inspector of Police [ AIR 2007 SC 1729 ], the apex Court has held that it is no doubt true that the substantive evidence of identification of an accused is the one made in the Court. A judgment of conviction can be arrived at even if no test identification parade has been held. by Inspector of Police [ AIR 2007 SC 1729 ], the apex Court has held that it is no doubt true that the substantive evidence of identification of an accused is the one made in the Court. A judgment of conviction can be arrived at even if no test identification parade has been held. But when a first information report has been lodged against unknown persons, a test identification parade in terms of section 9 is held for the purpose of testing the veracity of the witness in regard to his capability of identifying persons who were unknown to him. Such test identification parade is required to be held as early as possible so as to exclude possibility of the accused being identified either at the police station or at some other place by the concerned witnesses or with reference to the photographs published in the newspaper. In that case, the apex Court has discarded the evidence of test identification on the ground that it was conducted after lapse of time. 16. In a case of Acharaparambath Pradeepan and another v State of Kerala [(2008)1 SCC (Cri) 241], the apex Court has discarded the evidence of test identification on the ground that it was held after two months of the arrest of the accused. In the present case also, the test identification is held after nine months. In a case of Rajesh Govind Jagesha v State of Maharashtra [ AIR 2000 SC 160 ], the apex Court has discarded the evidence of test identification parade on the ground that it was conducted after inordinate delay of about five weeks from arrest of the accused. In the present case we find that there is absolutely no satisfactory explanation tendered by the prosecution as to why the identification parade was conducted after lapse of nine months and there is no evidence on record to show that the accused was kept baparda. In such circumstances, the Sessions Court has committed an illegality in relying upon the statement of PW10 Sharafat Khan on the ground that at his instance the sketch of the accused was drawn up. Therefore, if identification parade is belated such cannot be relied upon for basing conviction of the accused. As already stated above, PW10 Sharafat Khan in his entire statement has no where stated that the alleged sketch was issued at his instance. 17. Therefore, if identification parade is belated such cannot be relied upon for basing conviction of the accused. As already stated above, PW10 Sharafat Khan in his entire statement has no where stated that the alleged sketch was issued at his instance. 17. Now, the only circumstance which remains is the statement of Handwriting Expert, i.e., PW15 O.P.Bilgaiya. This witness is examined by the prosecution to prove handwriting of the accused in the letter (Ex.P3). In para 4 of his statement he says that the report prepared by him was examined by the State Examiner Shri Tomar and no separate examination report was prepared for that purpose. He states that his job is only to prepare report. He does not possess the record of the report. He admits that the job of Handwriting Expert is to examine the line quality of handwriting and pen-pressure is one of most important factors, but when the document is prepared by ball pen the pen-pressure looses its importance. He admits that in his report he has not used the work of line quality. He also admitted that he has not given any report about the pen-pressure as the document is written by ball pen. He admits that the shading of handwriting is also other important factor, but he has not referred anything about shading in his report He has also not made any mention about the exact size of the words used in his report. 18. Even assuming that the letter (Ex.P-3) is written by the accused the said letter was seized by the police on 12.2.1996 and was sent to the Handwriting Expert on 17.3.1997, i.e., after more than one year. The accused were arrested on 8.3.1997. Thus, it is every possibility that the said letter was prepared by the police after the accused were arrested. The apex Court in a case of Sharad Birdhichand Sarda v. State of Maharashtra [ AIR 1984 SC 1622 ], based on circumstantial evidence has laid down the following conditions: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The apex Court in a case of Sharad Birdhichand Sarda v. State of Maharashtra [ AIR 1984 SC 1622 ], based on circumstantial evidence has laid down the following conditions: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established; (2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainabale on any other hypothesis except that the accused is guilty; (3) the circumstances should be of conclusive nature and tendency; (4) they should exclude every possible hypothesis except the one to be proved and; (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused. 19. The apex Court in a case of Bakshish Singh v. State of Punjab [ AIR 1971 SC 2016 ], has considered and held that where in a case the dead body was recovered from the river by the police on the information given by the accused and on the bank of the river there were broken teeth and parts of human body lying, it was held that anybody who saw those parts could have inferred that the dead body must have been thrown into the river near about that place. The accused persons even if were not party to the murder could have come to know the place where the dead body had been thrown. The apex Court has held that in a case resting on circumstantial evidence the circumstance put forward must be satisfactorily proved and those circumstances should be consistent only with the hypothesis of the guilt of the accused. Again those circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground for a conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been done by the accused. In that case, the apex Court found that the guilt of the accused is not satisfactorily established from the available evidence on record and hence acquitted him. 20. As discussed above, in the present case, the evidence about recovery of dead body at the instance of present appellants as well as recovery of ornaments is doubtful because the police was already aware of the fact that the dead body is lying in the well. At the same time, the witness to the recovery of the ornaments has not supported the case of prosecution. The identification by witness Sharafat Khan (PW10) is also doubtful because there is no evidence to indicate that the accused was kept baparda and there is delay of nine months in conducting the said identification parade. There is also possibility that the letter (Ex.P-3) was forcibly got written by the police when the accused remained in custody. Thus, for the reasons mentioned above, we find that the trial Court has committed an illegality in convicting the accused. Accordingly, by reversing the judgments forI the alleged offences and sentence thereon is set aside. 21 Resultantly, all the three appeals are allowed acquitting the appellants from the charges levelled against them. The appellants be set at liberty, if not required in any other criminal case.