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Madhya Pradesh High Court · body

2014 DIGILAW 1673 (MP)

Pappu v. State of M. P.

2014-12-16

ROHIT ARYA, S.K.GANGELE

body2014
JUDGMENT : S.K. Gangele, J. 1. Appellant has filed this criminal appeal assailing the impugned judgment of conviction and sentence dated 23/8/1999 delivered by the Court of Sessions Judge, Morena in Sessions Trial No. 325/1994 convicting him for an offence punishable under section 302 IPC and sentencing to undergo imprisonment for life. 2. Appellant alongwith acquitted co-accused one Kiran Nurse is tried for committing the murder of one Laxminarayan alias Laxman Singh in the night intervening 27th and 28th July, 1994 3. Case of the prosecution, in nut shell, is that on 27/7/1994 appellant came to the house of Laxminarayan alias Laxman Singh (hereinafter, referred to as "the deceased") at the later's residence at Koteshwar Colony, Gwalior and asked about the deceased. At that time, the deceased was taking rest. When the deceased was told about arrival of the appellant, he came out and talked to the appellant for sometime. Around 3.00-3.30 in the afternoon, the deceased went alongwith the appellant on a motorcycle. Thereafter the deceased did not return back alive. Next day around 7.15 in the morning one Kanhaiya informed the Police that a dead body of a person is lying near Chonda bridge on Agra Bombay road. 4. On the basis of the information, a Marg was registered as Ex.P/15. The police reached on the spot, prepared the inquest report of the dead body Ex. P/17 and sent the dead body of deceased for post mortem. During investigation, spot map Ex.P/19 was prepared, blood-stained and plain tar was recovered vide Ex.P/20. The police also recovered an iron rod, two clothes, one Kohinoor watch HMT make, Biris and a currency note of Rs. 5/-. One challan receipt of motorcycle was also seized vide Ex.P/21 on that basis, the police knew that the dead body is of Laxman Singh. The police got verification about the dead body from his relations at Koteshwar Colony. Police recorded statements of the witnesses and raided the house of the suspicious person, however he could not be found. 5. On the basis of confirmation that the person was died, a case was registered for an offence punishable under Section 302 of IPC. On 09/08/1994 statement of one Police Constable Harendra Bhusan was recorded, who stated that the appellant was last seen together with the deceased near Chonda. On that basis, the appellant was arrested and interrogated. 5. On the basis of confirmation that the person was died, a case was registered for an offence punishable under Section 302 of IPC. On 09/08/1994 statement of one Police Constable Harendra Bhusan was recorded, who stated that the appellant was last seen together with the deceased near Chonda. On that basis, the appellant was arrested and interrogated. During interrogation, the clothes of the appellant were recovered from one Kiran (acquitted co-accused). On information from the accused, a boulder was recovered vide Ex.P/4. Motorcycle of the appellant was also seized at the instant of appellant from the well of one Jagdish (PW 4). The appellant was identified in the Test Identification Parade arranged at Morena Jail on 07/08/1994. The Police after completion of investigation, filed challan against the appellant- accused alongwith acquitted co-accused Kiran for an offence punishable under Section 302 of IPC. 6. The Committal Court committed the case to the Court of Session for trial. The Trial Court framed charges against the appellant. The appellant abjured his guilt and pleaded false implication on account of enmity. 7. The trial Court recorded the statements of as many as fifteen prosecution witnesses. It also proved documents Ex.P/1 to Ex.P/9 in support of its case. Defence, although proved Case Diary statements of the witnesses Ex.D/1 to Ex.D/4 on record, however, did not choose to examine any witness. 8. The trial Court after appreciating the evidence on record came to hold that the prosecution could not produce any evidence against co-accused Kiran connecting her with the commission of offence alleged, hence, acquitted her from the charge. The trial Court found clinching evidence against the appellant and also found that the prosecution has completed the chain of circumstantial evidence against the appellant, hence, convicted and sentenced him as indicated herein above. Hence, this appeal. 9. Learned counsel for the appellant has vehemently contended that the conviction of the appellant is based on circumstantial evidence and each link of the chain is not complete. The trial Court committed grave error in convicting the appellant on the basis of suspicion. He, therefore, prayed that the appeal be allowed and the impugned judgment of conviction and order of sentence be set aside. 10. Per contra, learned Public Prosecutor appearing on behalf of respondent- State argued in support of impugned judgment. The trial Court committed grave error in convicting the appellant on the basis of suspicion. He, therefore, prayed that the appeal be allowed and the impugned judgment of conviction and order of sentence be set aside. 10. Per contra, learned Public Prosecutor appearing on behalf of respondent- State argued in support of impugned judgment. He submitted that the trial Court has rightly convicted and sentenced the appellant and no interference is warranted in this appeal. 11. Having heard learned counsel for the parties and having gone through the evidence on record, we are of the considered opinion, that this appeal sans substance and deserves dismissal. 12. In the case in hand, conviction of appellant is based on circumstantial evidence. Hence, this Court is to examine whether each link of the chain of circumstantial evidence is complete and whether the trial Court was justified in convicting the appellant on the basis of circumstantial evidence. 13. In regard oral evidence, Dilip Singh (PW 1), Govind Singh (PW 2) and Rajeshwari (PW 3) are the family members of the deceased and are the witnesses of last seen. Jagdish (PW 4) could not support the case of prosecution and turned hostile. Mohan (PW 5) is a motorcycle mechanic and is also a witness of last seen. Ramnaresh Singh Tomar (PW 6) is an independent witness and is also a witness of last seen. Sahab Singh (PW 7) is the father of the deceased. Hiralal (PW 8) is an independent witness and is also a witness of last seen. He is also a witness to recovery of motorcycle vide Ex.P/11. Pratap Rao Patil (PW 9) is a witness of seizure of clothes. He, however, turned hostile and did not support the case of prosecution. Suresh Kumar Sharma (PW 10) is also a witness to recovery of clothes vide Ex.P/12. BP Shrivastava (PW 11) was posted as Naib Tahsildar, Tahsil Morena at the relevant point of time. He arranged the Test Identification Parade for identifying the appellant. Dr.KK Gupta (PW 12) performed the postmortem examination on the dead body of the deceased and proved the postmortem report Ex.P/14. As per postmortem report, the deceased sustained a lacerated wound on the head caused by hard and blunt object and the cause of death was stated to be shock as a result of injury to brain. Dr.KK Gupta (PW 12) performed the postmortem examination on the dead body of the deceased and proved the postmortem report Ex.P/14. As per postmortem report, the deceased sustained a lacerated wound on the head caused by hard and blunt object and the cause of death was stated to be shock as a result of injury to brain. Harendra Bhushan Mishra (PW 13) was posted as driver on the police vehicle at the relevant point of time. He is an independent witness and also a witness of last seen. Jitendra Nagaich (PW 14) is a witness of seizure of motorcycle vide Ex.P/1. C.R. Chandoriya (PW 15) is the investigating officer. He gave narrated details of investigation. 14. As per the deposition of the witnesses of last seen, who are also relatives of the deceased, viz. Dilip Singh (PW 1), Govind Singh (PW 2) and Rajeshswari (PW 3), the appellant came to their house and asked about the deceased. The deceased was sleeping at that time. Wife of the deceased woke up the deceased. Then the appellant and the deceased talked with each other for a long time. As per the deposition of Dilip Singh (PW 1), brother-in-law of the deceased who incidentally was in the house of his sister, his Jijaji the deceased took the appellant on his motorcycle. The deceased returned back 20-25 minutes thereafter and took his rain coat. Thereafter, the deceased could not return back. 15. Ramnaresh (PW 6), who is also a witness of last seen also deposed that he went to the deceased's house for taking motorcycle, he had to go to University. He had seen the appellant with the motorcycle of the deceased near BP Convent School. When he enquired about it, the appellant told him that he is waiting for the deceased. After sometime, the deceased came there. The trial Court recorded that the time of arrival of the deceased on the spot after he had gone to his house to fetch the raincoat is the same as has been deposed by Dilip Singh (PW 1) and in that way the deposition of Dilip Singh (PW 1) is quite natural. The deceased asked Ramnaresh to wait for sometime, however, he could not return back. 16. The evidence of the appellant's last seen together with the deceased is also stated by another witness of last seen, viz Mohan (PW 5) a motorcycle mechanic. The deceased asked Ramnaresh to wait for sometime, however, he could not return back. 16. The evidence of the appellant's last seen together with the deceased is also stated by another witness of last seen, viz Mohan (PW 5) a motorcycle mechanic. He deposed that the appellant and the deceased came to his shop for repairing of motorcycle. He repaired the motorcycle of the deceased and thereafter both the deceased and the appellant went away. He used to repair the motorcycle of the deceased, hence, he knew the deceased. 17. Jagdish (PW 4) although turned hostile about the person came to his well for keeping the motorcycle, stated the fact that a person came to his well for keeping the motorcycle. Motorcycle of the deceased was recovered from the spot as told by this witness vide Ex.P/1. The trial court has recorded that if the deposition of this witness is examined in the context of the evidence of Harendra Bhushan Mishra (PW 13) another independent witness, it is clear that the person coming to keep the motorcycle was none else than the appellant. 18. The Trial Court also examined the defence of the witness that the evidence of last seen together is not enough to base conviction; it has to be supported by other incriminating circumstances. The Trial Court found that each link of the chain of circumstantial evidence is complete vis-a-vis there are witnesses right from the place from where the deceased and the appellant had gone together, seeing them together on the way, i.e. of motorcycle mechanic and one Ramaresh Singh, till the time of death of deceased on the spot at the dead hours of night. The Trial Court came to hold that the appellant committed the murder of the deceased and to camouflage the death as an accident, threw the dead body on the road so that the body may be crushed under any vehicle to give it a look of accident. 19. The Trial Court has also noticed the activity of the appellant after the incident. Though the deceased and the appellant were close friends, yet the appellant did not turn up to visit the house of the deceased after his death in the last rites, which is against the natural conduct. It has also come in the evidence that the appellant came to the house of the deceased on his bicycle. Though the deceased and the appellant were close friends, yet the appellant did not turn up to visit the house of the deceased after his death in the last rites, which is against the natural conduct. It has also come in the evidence that the appellant came to the house of the deceased on his bicycle. He kept his bicycle there and went with the deceased on his motorcycle, however, he did not turn up to take his bicycle. It has also come in the evidence that appellant played an important role in settling the marriage of the deceased. Since both - the appellant and the deceased were friends - family members of the deceased could not take departure of the deceased with the appellant seriously. 20. The Trial Court has also recorded that had the appellant not in the company of the deceased a day before the incident, there was no occasion for the witnesses Ramnaresh (PW 6), motorcycle mechanic Mohan (PW 5) and Harendra Bhushan Mishra (PW 13) an independent police witness to have deposed about the appellant last seen together with the deceased, and statements of these witnesses were found by the trial court to be natural and trustworthy. 21. The Trial Court has led much emphasis on the testimony of Harendra Bhushan Mishra (PW 13). He is a police personnel and posted as a driver on the police vehicle MP 03/1013. He deposed that when they were returning back to Morena from Rairu they found two persons standing near Noorabad hillock. One of the guards sitting in the vehicle enquired from those persons as to what they had been doing there, whereupon those persons told that they were waiting for somebody. This witness deposed that though he did not enquire from those persons, however, he was watching them in the head light of the vehicle. He identified the appellant in the test identification parade. He further deposed that the place where he had seen those two persons was the same where dead body of the deceased was found. Hence, the Trial Court recorded that identification of the appellant by this witness cannot be doubted. 22. He identified the appellant in the test identification parade. He further deposed that the place where he had seen those two persons was the same where dead body of the deceased was found. Hence, the Trial Court recorded that identification of the appellant by this witness cannot be doubted. 22. The Trial Court has found in para 16 of the impugned judgment that the appellant has not put forth his explanation about the allegations as to where he took the deceased with him and where he dropped the deceased, and in the absence of the deceased not returning back alive, it could be presumed that he remained in the company of the deceased till his death. This finding further found corroboration from the statement of Harendra Bhushan Mishra (PW 13) an independent police witness who found the appellant and the deceased, both together in the dead hours of the night and the dead body of the deceased was found next day from the place where Harendra Bhushan Mishra (PW 13) had last seen them. The Trial Court recorded that there might be some altercation between the appellant and the deceased in which the deceased might have struck the deceased by a bolder and in order to give shape to the death of the deceased as an accident, he threw the dead body on the road so that any vehicle might crush the body and the case could be accidental. 23. The Trial Court has also taken into consideration the medical evidence to find out whether the death was homicidal. Dr. KK Gupta (PW 12) performed postmortem examination over the dead body of the deceased. He found a lacerated wound 3 1/2 x 1 1/2 cm x bone deep on the head. On opening the scalp skull fractures of parietal and temporal bones were seen of size 6 4 cm. Bone of the skull was also fractured. He opined the cause of death to be shock due to injury to brain. The injury was found to be ante mortem. In the cross examination this witness has admitted that such an injury could not be caused in ordinary course in an accident. Had there been accident, the deceased might have received injuries all over the body. He opined the cause of death to be shock due to injury to brain. The injury was found to be ante mortem. In the cross examination this witness has admitted that such an injury could not be caused in ordinary course in an accident. Had there been accident, the deceased might have received injuries all over the body. Although this witness admitted that such type of injury could be caused when the person driving the motorcycle was struck from back and thrown away, such a situation was not there in the present case, since the motorcycle of the deceased could not be recovered from the spot, rather it could be recovered from the place near the well of one Jagdish (PW 4). The motorcycle was also not found to be damaged, which clearly points out that the deceased was inflicted one severe blow on the head by somebody. Since there were multiple fractures of the bones of head like parietal, temporal, the trial Court found that the injury was caused with full force and was sufficient in ordinary course of nature to cause the death. The Trial Court, therefore, held the death of the deceased to be homicidal in nature. 24. The Trial Court has also taken note of the delay in recording the statements of the witnesses by the Police, however, it held that such a delay is not fatal to the prosecution and no benefit could be given to the accused of the flaws committed by the investigating agency. However, the trial Court recorded that such an evidence should be examined minutely. 25. The Supreme Court in Sharad Birdichand Sarda vs. State of Maharashtra, AIR 1984 SC 1622 has held that if the case of prosecution rests upon circumstantial evidence, the prosecution is obliged to prove the complete chain of circumstances unerringly pointing out the guilt towards the accused. 26. In the present case, the Trial Court has rightly held that the prosecution has collected the evidence right from the appellant going with the deceased till he was last seen in the company of the deceased in the dead hours of the night by an independent police witness. 26. In the present case, the Trial Court has rightly held that the prosecution has collected the evidence right from the appellant going with the deceased till he was last seen in the company of the deceased in the dead hours of the night by an independent police witness. The links of the chain of circumstantial evidence, i.e. the deceased's leaving home along with the appellant in the afternoon of the previous day witnessed by the family members, interception of the deceased by Ramnaresh Singh (PW 6) watching him along with the motorcycle of the deceased, getting the motorcycle repaired by the appellant and the deceased together witnessed by the motorcycle mechanic Mohan (PW 5), and enquiry by one of the police personnel of the police vehicle of which Harendra Bhushan Mishra (PW 13) was a driver in the dead hours of the night, when the appellant and the deceased were together, and recovery of the dead body of the deceased from the said place the next day morning, not only completes the each link of the chain of circumstantial evidence, but unerringly points that it was none else then the appellant who committed the murder of the deceased and threw the dead body on the road. We find that the Trial Court has very minutely examined the evidence on record and committed no error of law in convicting and sentencing the appellant and we give our stamp of approval to the findings recorded by the Trial Court. 27. In view of the discussions made herein above, we do not find any merit in this appeal. The appeal fails and is hereby dismissed. 28. Before parting with the judgment, it would be apposite to mention here that during the pendency of this appeal while the appellant was on bail, he committed another brutal offence of throwing acid on a hapless lady resulting into her death and causing grievous injuries to other three persons. On a Reference being made by the Court below for confirmation of death sentence inflicted against the accused in that case, who is the appellant in the present case also, this Court confirmed the capital punishment imposed against the appellant vide its judgment dated 12th December, 2014 delivered in Criminal Death Reference No. 01/2014.