Jokhan Gond @ Manager Gond vs State
2017 Latest Caselaw 5848 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

AFR
 
Reserved
 
Court No. - 47
 

 
Case :- JAIL APPEAL No. - 7500 of 2007
 

 
Appellant :- Jokhan Gond @ Manager Gond
 
Respondent :- State
 
Counsel for Appellant :- From Jail, Sudhir Mehrotra Ac
 
Counsel for Respondent :- A.G.A.
 

 
Hon'ble Shri Narayan Shukla,J.

Hon'ble Chandra Dhari Singh,J.

(Delivered by Hon'ble Chandra Dhari Singh,J)

1. Heard Mr. Sudhir Mehrotra learned counsel for the appellant, Mr. Nagendra Bahadur Singh learned A.G.A. for the State and perused the record.

2. This appeal has been filed against the judgment and order dated 28.01.2004 passed by the learned Sessions Judge, Sonebhadra in Session Trial No.57 of 2001 (State v. Jokhan Gond), whereby the trial court convicted the accused person/appellant for offence punishable under Sections 302 and 201 I.P.C. and sentenced him for life imprisonment for offence punishable under Section 302 I.P.C. and fine of Rs.5,000/-. He was sentenced for four years rigorous imprisonment and Rs.3000/- fine for offence punishable under Section 201 I.P.C. In default of payment of fine imposed under Section 302 I.P.C., he will further undergo six months rigorous imprisonment and for offence under Section 201 I.P.C. in default of payment of the fine will undergo three more months rigorous imprisonment. The sentences shall go concurrently.

3. Brief facts of the case.

(I) As per the prosecution story, the accused Jokhan Gond resident of Village Pipri Sonwani, Police Station Anpara, District Sonebhadra was residing in his in-laws house and he was driving Tractor of deceased Sukalu Kesari on the salary of Rs.1500/- per month. After one and half months, he left the job and joined another job as driver of the tractor of one Deendayal in Village Pipri Sonwani. When the appellant was working as Tractor driver of deceased Sukalu Kesari, the deceased had given some money to him. The accused had not returned the money back after leaving his job.

(II) On 31.12.2000 the deceased Sukalu Kesari started from house at about 7:30 a.m. to go the place of accused for recovery of money, which had been given to the accused-appellant. As per PW-1 Bhagwan Das, who is son of the deceased stated in his statement that his father went to village Sonwani for recovery of money from the accused Jokhan Gond and he had not returned back to home. He had informed his uncle Lalchand that the deceased went to meet the accused Jokhan Gond for recovery of money, but he did not return back. The police station Chopan was informed regarding the missing of the deceased vide written report dated 05.01.2001 given by PW-1 Bhagwan Das. In the report, it was stared that the deceased went to the place of the accused for recovery of the money and did not return back. From that date he was missing.

III. On 06.01.2001, after the missing report, the Inspector along with Radhey Shyam, Gulab Prasad and Bhagwan Das went to Jokhan Gond's house at Sonwani, where he was residing with in-laws. When police asked Jokhan Gond about the deceased then he confessed that he killed Sukalu Kesari. His body was thrown in drain near Lamsodi. On his statement, police taken Jokhan Gond at the place, where he pointed out that he thrown the dead body of the deceased in the drain. At his instance, the dead body was traced and recovered. Police made recovery memo of dead body and Gulab, Radhey Shyam and Bhagwan Das made signature on the memo of recovery as Ex. Ka-3.

IV. The police also recovered sweater, shirt, shoes along with the dead body and the recovery memo of the articles was also prepared, the dead body was sent for the post-mortem. After arrest of Jokhan Gond, police had also recovered the weapon which was used in the incident.

V. On 07.01.2001, PW-6 Dr. S.N. Sharma had conducted the post-mortem examination on the dead body of the deceased, the following injuries was found on the body of the deceased:

i. Incised wound 4 x 1 cm. in the middle of forehead, bone under which was fractured.

ii. Lacerated wound of 2 x 1 cm. on the right side of forehead just above the ear, bone beneath was fractured.

iii. Lacerated wound of 2 x 8 cm. on the left side of forehead just above the ear.

iv. Abrasion of 1 x 3 cm. on the left side of the forehead just above the eye.

The autopsy surgeon opined that on account of grievous injury on vital part i.e. head caused hemorrhage which resulted in comma and death.

VI. The charge-sheet was filed against the appellant for the offence punishable under Sections 302 and 201 of I.P.C. The case was committed to the Court of Sessions for trial. On 22.09.2001, the Sessions Judge, Sonebhadra framed charges under Sections 302 and 201 I.P.C. against the appellant/accused. The accused had denied the charges and pleaded not guilty. He stated that he was falsely implicated in the present case and pleaded for trial.

VII. The trial was proceeded as S.T.No.57/2001 in the Court of the Sessions Judge, Sonebhadra. The prosecution examined seven witnesses i.e. PW-1 Sri Bhagwan Das, PW-2 Gulab, PW-3 Anjani Kumar Singh, PW-4 Duryodhan, PW-5 Sub-Inspector Gopal Singh, PW-6 Dr. S. N. Sharma, PW-7 Constable Indramani Singh to prove his case beyond any doubt. Entire prosecution case is on the basis of circumstantial evidence.

VIII. As per the statement of PW-1 Bhagwan Das, he stated in his deposition that his father (deceased Sukalu Kesari) kept the accused as a Tractor Driver on the salary of Rs.1500/- per month. The accused did his job about one and half months and thereafter he left the job and went to his in-laws house where he got the job of Tractor driver of one Deendayal. Since the accused had taken some rupees from his father-deceased, therefore, the deceased on 31.12.2000 went to the place of accused to ask the said money back.

IX. PW-2 Gulab Prasad stated in his deposition that his brother deceased Sukalu Kesari went to meet the accused to ask his money back which was taken by the accused, when he was driving his Tractor. The accused had taken some money from the deceased. He further submitted that the deceased went to the shop of his son (PW-1 Bhagwan Das) and informed him that he was going to the place of accused to recover the said money which was given to the accused at the time when he was driving his Tractor. He deposed in his deposition that they had searched deceased for three days but he could not be traced and therefore, missing complaint was filed in the police station. On that complaint, an F.I.R. was lodged. The dead body was recovered at the instance of the accused. The dead body was recognized by the witnesses. Police had prepared the memo of recovery of the dead body. PW-2 signed the recovery memo of dead body.

X. PW-3 Anjani Kumar Singh and PW-4 Duryodhan were witnesses of recovery of the weapon which was used in the crime and they signed on the recovery memo of the weapon. They deposed that the accused person confessed his offence in front of the police and other witnesses.

XI. PW-5 S.I. Gopal Singh, police station Bindamganj, Sonebhadra deposed that the missing report of deceased was given by the PW-1 Bhagwan Das. He recovered the dead body of deceased and weapon used in the crime. He made memo of recovery of the dead body as well as recovery memo of the weapon. He further stated in the deposition that the dead body and weapon were recovered at the instance of the accused person. He stated in the deposition that the dead body was composed and same was sent for the post-mortem in the district hospital.

XII. PW-6, Dr. S.N. Sharma conducted the post-mortem of the dead body of the deceased and he prepared the post-mortem report Ex.Ka-21. The following injuries was found on the body of the deceased Sukalu Kesari:

i. Incised wound 4 x 1 cm. in the middle of forehead, bone under which was fractured.

ii. Lacerated wound of 2 x 1 cm. on the right side of forehead just above the ear, bone beneath was fractured.

iii. Lacerated wound of 2 x 8 cm. on the left side of forehead just above the ear.

iv. Abrasion of 1 x 3 cm. on the left side of the forehead just above the eye.

He opined that on account of grievous injury to vital part i.e. head caused hemorrhage which resulted in comma and death. He also found that the death was happened before 70 hours from the time when post-mortem was conducted. All injuries caused by blunt edged weapon.

XIII. The appellant-accused had denied all charges and stated that he was falsely implicated in the case due to the previous enmity. He denied all allegations in his statement under Section 313 Cr.P.C.

XIV. After perusal of the statement made by witnesses and other materials on the record, the trial court convicted the appellant for the offence punishable under Sections 302 and 201 I.P.C. Sentenced him to undergo for life imprisonment with fine of Rs.5,000/- for offence punishable under Section 302 I.P.C., in default of payment of the fine he will further undergo six months rigorous imprisonment. Four years imprisonment and Rs.3,000/- fine for offence punishable under Section 201 I.P.C., in default of the payment of the fine further he will undergo three months rigorous imprisonment.

XV. Aggrieved by the judgment of the trial court, the instant jail appeal bearing No.7500 of 2007 filed before this Court.

4. Learned counsel Mr. Sudhir Mehrotra appearing for the appellant submitted that the prosecution has failed to prove his case beyond any doubt as no motive was present to kill the deceased. He further submitted that after perusing of the all witnesses, it is not established that the accused person had any enmity with the deceased, therefore, no strong motive or intention to kill him. The present case is entirely based on circumstantial evidence. After perusing the materials on record, the chain of the circumstantial evidence has not been completed. It is not a case of last seen as nobody had seen deceased with the accused person. Only on the presumption that as per PW-1 and PW-2 stated in their deposition that the deceased went to the accused for recovery of the money of Rs.1,000/- otherwise no other evidence is on record to prove guilty the appellant. The counsel for the appellant submitted that there are much contradictions in the statements of the witnesses and therefore, these statements also not to be believed for holding the accused person's guilt for offence under Sections 302 and 201 I.P.C. In the last learned counsel for the appellant submitted that after seeing the conduct of the accused, it is also established that he was not involved in any crime of killing the deceased. When the police reached at the house of the accused, he was in the house. The accused is innocent and falsely implicated in the present case.

5. Per contra, learned A.G.A. submitted that it is full proof case of murder. He further submitted that the chain of the circumstantial evidence has been completed and there is no missing link in the chain. The dead body and weapon were recovered at the instance of the accused person from the place which is situated near the village, where he was residing at the time of the incident. As per the deposition of the witnesses, the deceased went to meet him to recover the money. Now, it was for the accused to explain as to what happened to the deceased and in the absence of any explanation from the accused as based on the circumstantial evidence. Court below rightly convicted the appellant and impugned judgment warrants no interference.

6. After considering the rival views, we have perused the deposition of the witnesses and also considered the extra judicial confession made by the accused person. It is cleared by the statements of PW-1 and PW-2 that the deceased went to the house of accused person for recovery of money and after that he was missing and his dead body was recovered at the instance of the accused person itself. There was no occasion for false implication of the accused and the accused has also failed to establish that there were any reason or ground for the false implication in the present case.

The accused had also made confessional statement before the witnesses that he had committed the crime to kill the deceased and thrown the body of the deceased in the drain and on his information the dead body was recovered by the police in the presence of the witnesses; medical reports and other documentary evidence corroborated with each other and therefore, the prosecution has succeeded in proving their case without any doubt.

7. Extra judicial confession made by the accused person is an evidence and added link to complete the chain of circumstantial evidence. The extra judicial confession has to be examined by the court with greater care and caution. It should be made voluntary and should be truthful and it should inspire the confidence.

8. The extra judicial confession was made by the accused in front of the witnesses i.e. Bhagwan Das, Radhey Shyam and Gulab that he killed the deceased and thrown his dead body in the drain situated at Lamsadi Hills, at his instance, the dead body and weapon were recovered.

9. Case of the prosecution is entirely based on the circumstantial evidence. Settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be completed forming a chain and there should be no gap left in the chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his innocence.

10. In Trimukh Maroti Kirkan vs. State of Maharashtra, (2006) 10 SCC 681, the Hon'ble Court held as under:

"In the case in hand there is no eye-witness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."

11. In the instant case there are no eye witnesses to the crime. In a case which rests on circumstantial evidence, the law postulates two fold requirement. (i) every link in the chain of circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond doubt; (ii) all the circumstances must be consistent only with the guilt of the accused. In the instant case the dead body was recovered, weapon was recovered and other articles were recovered at the instance of the accused. The accused confessed before the witnesses that he killed the deceased. As per PW-1, PW-2, PW-3 and PW-4, all these witnesses stated in the statements that the deceased went to the place of the appellant for taking money back from him and after that he did not come back. The dead body was also recovered near the village of the accused.

12. By perusal of the testimonies of Pws. 1, 2, 3 and 4, it is proved that the deceased went to the place of the accused to take money back and the accused also made confession that he killed the deceased for money. It is also established the motive for murder of the deceased i.e. the lust of money as the accused did not want to return the money back which was taken by him from the deceased.

13. The counsel for the appellant submitted that since the appellant was alleged to have committed murder of Sukalu Kesari for the money. But in the instant case, neither the amount was recovered from the site where dead body was found nor from the appellant. Therefore, motive has not been proved.

14. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence lending assurance to the prosecution case. But even, if the prosecution has not been able to prove the motive, that will not be a ground to throw away the prosecution case. Absence of proof of motive only demands careful scrutiny and deeper analysis of evidence adduced by the prosecution. Therefore, non-recovery of the money from the site where dead body was found does not affect the case of prosecution.

15. By perusal of the evidence of PW-1 and PW-2, it is clear that deceased went to the appellant's place for recovery of money and recovery of the dead body, weapon and other articles were made at the instance of the accused-appellant. It is also cleared form the deposition of Pws that the dead body and weapon were recovered from the place which is in the village of the accused. Therefore, it is crystal clear from the evidence, that deceased went to the village of the accused to meet him for recovery of the money. The accused also made confession in front of the witnesses that he had killed the deceased did not give any explanation for false implication.

16. The court below convicted the appellant on the evidence of PW-1, PW-2, PW-3 and PW-4. The witnesses stated in their respective depositions that the appellant had admitted before them that he killed deceased and at his instance recovery of dead body and weapon were made. In the above background, the trial court had found to link the appellant with the murder of Sukalu Kesari.

17. There are five circumstantial weighed with the trial court in convicting of the appellant. There are summarized in the following extracts of the judgment/order of trial court. Thus to summarize the facts :

"i. The deceased went to appellant's village to meet the accused to recover the money.

ii. The appellant had made confessional statement to the Pws that he killed the deceased.

iii. At the instance of the accused recovery of dead body, weapon and other articles were made.

iv. Dead body and weapon recovered from the place near to appellant's village.

v. Motive is also established."

18. Extra judicial confession made by the accused is added link to complete the chain of the circumstantial evidence. The accused after working for one and a half year left the job of the deceased and came to village Pipri, where he used to work for one person namely Deen Dayal. As the accused did not return back Rs.1,000/- of the deceased, therefore, deceased at about 7:30 a.m. on 31.12.2000 left his house in order to obtain money from the accused. The deceased did not return back till 05.01.2001, then, the complainant lodged the missing report. When police with other witnesses went to the village of accused, there he was caught by the police. He confessed that he did crime to kill the deceased. At his instance, dead body, weapon and other articles were recovered.

19. Therefore, in these circumstances, the chain of the circumstantial evidence has been completed to establish of the appellant is guilty for offence punishable under Sections 302 and 201 I.P.C.

20. There is no material on record on the basis of which this Court may take a different view or conclusion from the court below. We do not find any force in this appeal which is accordingly dismissed.

21. The Registry is directed to sent the certified copy of the judgment and all original record of this case to the concerned court below for compliance.

22. The learned Amicus Curiae Mr. Sudhir Mehrotra shall be paid Rs.5,000/- for providing active assistance to the Court from the fund of State Legal Services Authority.

Order Date :- 27.10.2017

Jitendra

(Chandra Dhari Singh,J.)  (Shri Narayan Shukla, J.)