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2013 DIGILAW 283 (CHH)

JITENDRA v. STATE OF M. P.

2013-09-24

R.N.CHANDRAKAR, SUNIL KUMAR SINHA

body2013
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. :- 1. Appellant -Jitendra (A-1) has been convicted under Sections 302, 201 and 120-B IPC and sentenced to undergo R.I. for life in 2 counts and R.I. for 3 years and fine of Rs.500/- with default sentence of R.I. for 6 months with a direction to run the sentences concurrently. Appellant- Murlidhar (A2) has been convicted under Section 120-B IPC and sentenced to undergo R.I. for life. They have been convicted in ST. No. 364/96 by the 3rd Additional Sessions Judge, Bastar at Jagdalpur vide judgment and order dated 22nd December, 1997. 2. The facts, briefly stated, are as under:- 2.1 Appellant -Jitendra (A-1) is son of appellant Murlidhar (A-2). Deceased Devdatt was younger brother of Murlidhar (A-2). Devdatt was residing in village Pathraguda and Murlidhar (A2) was residing in village Tokapal. Jitendra (A-1) was residing in village Ghat Dhanora. There was some landed prope11y in the joint ownership of Murlidhar (A-2) and Devdatt (Deceased) in village- Ghat Dhanora. Appellant -Jitendra (A-1) was holding possession of the said property. 2.2 The case of the prosecution is that on 15/05/1996 in the morning, Murlidhar (A-2) visited the house of Devdatt (Deceased) and asked him to go to village Ghat Dhanora for negotiation of sale of their joint property. Both the brothers went on the Hero Puch Moped of Deceased- Devdatt. Devdatt, thereafter, did not return to village Pathraguda. On the next day i.e. 16/05/1996, Murlidhar (A-2) came to the house of the Devdatt (Deceased) and asked his wife - Jamuna (PW-2) about Devdatt. He informed that Devdatt had left his company in village Ghat Dhanora saying that he was going to Jagdalpur. He expressed his innocence saying as to how he has not returned till then. The family members of the Deceased visited Ghat Dhanora, but they could not know the whereabouts of the Deceased. Therefore; a missing report (Ex-P-15-A) was lodged by the son of the Deceased Hemant Dewangan (PW-5) in Police Station - Frejarpur. This was reduced into writing in Rojnamcha Sanha No. 5/96 dated 16/05/1996. 2.3 During the course of investigation of missing report, on some information, appellant- Jitendra (A-1) was taken into custody and his discovery statements (Exs. Therefore; a missing report (Ex-P-15-A) was lodged by the son of the Deceased Hemant Dewangan (PW-5) in Police Station - Frejarpur. This was reduced into writing in Rojnamcha Sanha No. 5/96 dated 16/05/1996. 2.3 During the course of investigation of missing report, on some information, appellant- Jitendra (A-1) was taken into custody and his discovery statements (Exs. P-1, P-2 & P-3) were recorded under Section 27 of the Evidence-Act and 9 pieces of the dead body of the Deceased contained in 3 gunny bags were seized from Indrawati River. Blood stained knife and other articles were also seized at his instance. Hero Puch of the Deceased was also seized. Their seizure memos are Exs. P-4, P-6 & P-8. 2.4 The pieces of dead body were sent for postmortem. The postmortem examination was conducted by Dr. Virendra Kumar (PW-4). He found that the human body sent to him, was in 9 pieces. After keeping them in order, it was identified to be dead body of Deceased-Devdatt. The Autopsy Surgeon found 19 deep incised wounds on the dead body of the Deceased, which was cut into 9 pieces. He opined that the cause of death was haemorrhage and shock on account of above injuries and the death was homicidal in nature. The postmortem report is Ex-P-11. 2.5 The seized articles were sent for their chemical examination to Forensic Science Laboratory (FSL), Raipur, from where, a report (Ex.P-34) was received. According to the FSL report, blood stains were found on various articles, including Farsa, seized at the instance of the appellants. 2.6 The prosecution came with the case that 3 accused persons entered into a criminal conspiracy and the Deceased was taken from his house to village Pathraguda by Murlidhar (A-2) on the pretext that a negotiation is to take place regarding sale of their land. In Pathraguda, when the Deceased was sleeping in the house of Jitendra (A-1), Jitendra (A-1) committed murder of the deceased by using knife and thereafter, he cut his dead body into 9 pieces, which were kept in the gunny bags and the said gunny bags were thrown in the river with an intention to conceal the evidence of murder of the Deceased in the above manner. 2.7 Admittedly, there was no eye-witness of the incident and the case of the prosecution was based on circumstantial evidence. 2.7 Admittedly, there was no eye-witness of the incident and the case of the prosecution was based on circumstantial evidence. Following are the circumstances, on which, the Sessions Judge relied and convicted and sentenced the 2 accused persons (A1 & A-2) as above:- i. The Deceased had gone with Murlidhar (A-2) on 15/05/1996, therefore, he was 'last seen' alive with Murlidhar (A2); i. In the next morning i.e. 16/05/1996, Murlidhar (A-2) visited the house of the Deceased and said that he had left the Deceased in Village Ghat Dhanora and the Deceased had gone with two persons to Jagdalpur; ii. When the son of the Deceased went to Ghat Dhanora, Jitendra (A-1) also told that he had gone to Jagdalpur in the afternoon on 15/05/1996; iii. The dead body of the Deceased was found in 9 pieces in three gunny bags on the discovery made by Jitendra (A1); iv. A knife was also seized on the discovery made by Jitendra (A-1); v. Blood stained clothes and other incriminating materials were also seized on the discovery made by Jitendra (A-1); vi. Farsa was also seized at the instance of Jitendra (A-1); vii. Moped (Hero Puch) was also seized at the instance of Jitendra (A-1); and viii. Blood stains were found in the soil seized from the house of Jitendra (A-1) and blood stains were also found on many articles, including the Farsa and leg-guard of the Moped. 2.8 The learned Sessions Judge relied on the above circumstances and held that Murlidhar (A-2) took the Deceased on the criminal conspiracy with Jitendra (A-1) to village Ghat Dhanora, where the Deceased was committed to death. Therefore, the 2 accused persons (A-1 & A-2) were liable for punishment as above. The 2 accused persons, thus, were convicted and sentenced as above. However, the 3rd accused- Baldev (A-3) was acquitted of the charges framed against him. Hence, this appeal. 3. Mr. Parag Kotecha, learned counsel appearing on behalf of the appellants, has argued that the above circumstances were not fully established; the circumstances were insufficient; the Deceased had gone with Murlidhar (A-2) in an usual manner and left his company in village Ghat Dhanora, therefore, Murlidhar (A-2) would not be liable for punishment; all the circumstances were capable of being explained; and the chain of circumstantial evidence was also not complete. He also argued that Jitendra (A-1) was arrested on 18/05/1996, therefore, his statement cannot be treated as one under Section 27 of the Evidence Act and it cannot be said that the pieces of the dead body were seized at his instance. 4. On the other hand, Mr. N.K. Mehta, learned Panel Lawyer appearing on behalf of the State, has opposed these arguments and supported the judgment passed by the Sessions Court. 5. We have heard counsel for the parties. 6. So far as the arguments relating to discovery made on the statement of Jitendra (A-1) is concerned, it is true that Jitendra (A-1) was arrested on 18/05/1996, but that would make no difference in view of the provisions of Section 27 of the Evidence Act. Section 27 of the Evidence Act reads as under:- "27. How much of information received fro, accused may be proved-Provided that, when any fact is deposed to as discovered in consequence of information received from a person accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved." 7. A bare reading of Section 27 makes it clear that the accused of any offence must be in the 'custody' of the Police Officer and thus, it is not necessary for a discovery that the accused must have been 'formally' arrested by the Police. The difference between 'formal arrest' and 'custody' has to be kept in mind for proper analysis of the provisions of Section 27 of the Evidence Act. 8. There may be a circumstance when an accused may be in custody of the Police, but he may not be arrested and in that situation also, his discovery statement would be admissible under Section 27 of the Evidence Act. Thus, the contention of Mr. Parag Kotecha that the accused was not arrested by the Police at the time of recording his discovery vitiates his discovery statement, cannot be accepted. 9. The main circumstance against Murlidhar (A-2) is the circumstance of 'last seen'. Jamuna (PW-2) is wife of the Deceased. She has deposed in clear words that on 15/05/1996, her husband (Deceased) was taken by Murlidhar (A-2) in the morning. Hemant Dewangan (PW-5) is son of the Deceased. He has supported the above version of Jamuna (PW-2). 9. The main circumstance against Murlidhar (A-2) is the circumstance of 'last seen'. Jamuna (PW-2) is wife of the Deceased. She has deposed in clear words that on 15/05/1996, her husband (Deceased) was taken by Murlidhar (A-2) in the morning. Hemant Dewangan (PW-5) is son of the Deceased. He has supported the above version of Jamuna (PW-2). We fur1her note that when the Deceased did not return to the house, his son- Hemant Dewangan (PW- 5) had gone for his search to village Ghat Dhanora and when the whereabouts of the Deceased could not be known, he lodged missing report No. 5/1996 in Police Station - Frejarpur, which was reduced into writing in Rojnamcha Sanha No. 5/1996 (Ex-P-15-A). A perusal of the Rojnamcha Sanha would show that Hemant Dewangan (PW-5) had stated to the Police that his father (Deceased) was taken by Murlidhar (A-2) on the Moped of the Deceased on 15/05/1996. All this evidence remained unrebutted by the defence. Therefore, it was proved that the Deceased was taken by Murlidhar (A-2) at about 7 a.m., on 15/05/1996 and the circumstance of 'last seen' together was proved against Murlidhar (A-2). 10. The other circumstances are discovery and seizure of pieces of the dead body and other m1icles at the instance of Jitendra (A-1). Jitendra (A1) was taken into custody on 17/05/1996 and three discovery statements (Exs. P-1, P-2 & P-3) were recorded under Section 27 of the Evidence Act and various articles, including the pieces of the dead body in 3 gunny bags were recovered at his instance. This shows that Jitendra (A-1) had personal knowledge about the tact that the pieces of the dead body in 3 gunny bags were submerged in the river, which were recovered by the Police immediately after the discovery statement. Thus, the above discovery and the seizure of 3 gunny bags containing 9 pieces of the dead body of the deceased were grave circumstance against appellant Jitendra (A-1). 11. Certain articles like knife and Farsa were also seized at the instance of Jitendra (A-1) and as stated above, blood stains were found on various articles, including the Farsa seized on the said discovery. They were also incriminating against Jitendra (A-1). The Moped of the Deceased was also seized on the instance of Jitendra (A-1) and blood stains were found on the leg-guard. 12. They were also incriminating against Jitendra (A-1). The Moped of the Deceased was also seized on the instance of Jitendra (A-1) and blood stains were found on the leg-guard. 12. Jitendra (A-1) was in exclusive possession of the land situated in village Ghat Dhanora. The Deceased was a co-owner of the land along with Murlidhar (A-2). The Deceased was taken by Murlidhar (A-2) on the pretext that the land has to be sold, therefore, some negotiations are to be done, and then he was murdered in the above manner. The learned Sessions Judge has held that Murlidhar (A-2), on the next day i.e. 16.5.1996, had visited the house of the Deceased and had said that the Deceased had departed his company in Ghat Dhanora saying that he was going to Jagdalpur and he had gone with 2 Scootarwalas to Jagdalpur. This explanation was incorrect, as on investigation, it was not found that the Deceased had gone to Jagdalpur. On the contrary, it was found that the Deceased was murdered in. the above manner in the house of Jitendra (A-1) in village Ghat Dhanora. It is for these reasons, the Sessions Judge has held that Murlidhar (A-2) was also a participant of criminal conspiracy for commission of murder of the Deceased in the above manner and both the accused persons (A-1 & A-2) have been convicted and sentenced in the above manner. 13. In a case based on circumstantial evidence, the circumstances must be fully established; all the circumstances so established should be of conclusive nature and tendency and none of the circumstances should be capable of being explained and the chain of circumstantial evidence also must be complete. In the instant case, all the above circumstances were fully established by the prosecution. They were of conclusive nature and tendency and none of "the circumstances were capable of being explained and the chain of circumstantial evidence was also complete. 14. We are of the view that the learned Sessions Judge was fully justified in resting the conviction of the appellants (Jitendra- A-1 & Murlidhar- A-2) on the above set of circumstantial evidence and the same deserves to be upheld. 15. Accordingly, the appeal is liable to be dismissed and is hereby dismissed. 16. It is stated that the appellants are on bail. They shall be taken into custody to undergo the remaining sentences imposed against them. 15. Accordingly, the appeal is liable to be dismissed and is hereby dismissed. 16. It is stated that the appellants are on bail. They shall be taken into custody to undergo the remaining sentences imposed against them. HEAD LINE The accused should be in 'custody' while giving discovery statement under Section 27 of the Evidence Act, though he may not have been formally arrested. /kkjk 27 Hkkjrh; lk{; vf/kfu;e esa dFku ds le; vkjksih dks vfHkj{kk esa gksuk vko’;d gS && Hkys gh mldh vkSipkfjd fxjrkjh ugha dh x;h gksA Appeal Dismissed.