Chattisgarh High Court
Rajesh @ Raka vs State Of Chhattisgarh on 6 December, 2022
1
N/AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
CRIMINAL APPEAL NO. 880 OF 2012
• Yashwant Khutiya, S/o Vanshidhar Khutia, aged about 28 years,
R/o Ludeg, Police Station Patthalgaon, District Jashpur Nagar (C.G.)
... Appellant
versus
• State of Chhattisgarh, through: Police Station Ambikapur, District
Surguja (C.G.)
... Respondent
CRIMINAL APPEAL NO. 887 OF 2012
• Rajesh @ Raka, S/o Numsar Chikawa, aged about 20 years, R/o
Ginabahar, Police Station Kunkuri, District Jashpur (C.G.)
... Appellant
versus
• State of Chhattisgarh, through: Police Station Ambikapur, District
Surguja (C.G.)
... Respondent
CRIMINAL APPEAL NO. 978 OF 2012
• Anil Rawani, S/o Munna Ram Rawani, aged about 20 years, R/o
Village Semaura, Police Station Majhiawn, District Garhawa, Conductor,
Jharkhand (Bihar). At present R/o Village Ludeg, P.S. Patthalgawn,
District Jashpur (C.G.)
... Appellant
versus
• State of Chhattisgarh, through: Police Station Ambikapur, District
Surguja (C.G.)
... Respondent
_________________________________________________________
For Appellant in Cr.A. No.880/2012 : Mr. Prafull N. Bharat, Sr. Adv., with
Mr. Mayank Chandrakar, Adv.
For Appellant in Cr.A. No.887/2012 : Mr. H.S. Patel, Adv.
For Appellant in Cr.A. No.978/2012 : Mr. Vineet Pandey Adv.
For Respondent/State : Ms. Hamida Siddiqui, Dy. A.G. &
Mr. Avinash K. Mishra, Govt. Adv.
______________________________________________________________________________________________________________________________________________________
Hon'ble Shri Justice P. Sam Koshy
Hon'ble Smt. Justice Rajani Dubey
C A V Judgment
[Reserved on: 08/09/2022]
[Delivered on: 06/12/2022]
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Per, P. Sam Koshy, J.
1. The present three Criminal Appeals have been filed separately by
the three Appellants namely Yashwant Khutiya, Rajesh @ Raka and Anil
Rawani, assailing the Judgment dated 10.9.2012 passed by the First
Additional Sessions Judge, Ambikapur, District Surguja, in Sessions
Case No.218/2004, whereby they have been convicted and sentenced
as per the following terms:-
Conviction u/S Sentence
364/149 I.P.C. Life Imprisonment with fine of Rs.1,000/- in default
of which additional R.I. for four months.
302/149 I.P.C. Life Imprisonment with fine of Rs.1,000/- in default
of which additional R.I. for four months.
201 I.P.C. Rigorous Imprisonment for seven years with fine of
Rs.500/- in default of which additional R.I. for two
months.
2. Since these Appeals arise out of a common Judgment of
conviction and that the facts involved, further the grounds raised also
being common, if not identical, all the three Appeals are being decided
by this common Judgment.
3. These three Appeals were earlier considered and decided by this
Court by its Judgment dated 25.9.2018 whereby all these Appeals stood
dismissed. However, on an Appeal to the Hon'ble Supreme Court vide
CRA No.321/2021, CRA No.322/2021 & CRA No.323/2021, the
Judgment passed by this Court dismissing the present Criminal Appeals
was set-aside/quashed by the Hon'ble Supreme Court and the matter
was remitted back for reconsideration of the Appeals afresh. That is how
the matter has again come up before this Court for a fresh consideration
altogether.
4. Case of the prosecution in brief are that on 23.11.2003 when the
deceased Nandu Prasad Gupta along with his wife and family were
going in a cycle rickshaw from Bus Stand Ambikapur to their residence,
at around 11:00pm they were intercepted by the accused persons Anil
Rawani along with Mahendra Das (since died) and Rajesh @ Raka. The
accused persons is said to have misbehaved with the wife of the
Deceased and when he intervened, the accused persons is said to have
started quarrel with him and also threatened him of dire consequences.
On the next day, i.e. on 24.11.2003, when the Deceased narrated the
whole incident to his brother Prem Kumar Gupta (PW-1), he (PW-1)
called the accused Anil Rawani to their Hotel and is said have slapped
him 3-4 times after warning him not to repeat his misbehaviour. In the
evening of the same day, another accused person Mahendra Das (since
died) is said to have come to the hotel of the deceased Nandu Kumar
Gupta and Prem Kumar Gupta and threatened them of dire
consequences for the incident that took place in the morning when Prem
Kumar Gupta is said to have slapped Anil Rawani.
5. It is further the case of the prosecution that on the next day i.e. on
25.11.2003, Mahendra Das and Rajesh @ Raka again came to the hotel
of the Deceased and once again threatened the Deceased of dire
consequences for the incident that occurred on 24.11.2003 when his
brother Prem Kumar Gupta (PW-1) slapped Anil Rawani. Thereafter, on
the same night at around 10:15pm, some of the accused persons came
in a silver colour Marshall Jeep to the hotel of the Deceased. Some of
them went to the hotel of the Deceased, caught hold of him, dragged
him to the Jeep, forcefully made him sit in the Jeep and drove away.
Upon hearing the alarm raised by the Deceased, his brother Prem
Kumar Gupta (PW-1) is said to have come to the rescue of the
Deceased but could not get him released from the clutches of the
accused persons, as one of the accused persons is said to have pushed
him (PW-1) when he tried to intervene. The accused persons thereafter
is said to have committed the murder of the deceased Nandu Prasad
Gupta and threw his body in a pit near the bridge of Jheenk river.
6. Thereafter, on 26.11.2003, on the basis of information given by
Pawan Das, Bhulai Ram (PW-7), Akbar Ram and Kalyan Sai, a body
was recovered from under the bridge near the Jheenk River. A Merg
intimation (Ex. P-31) was recorded. The body was identified by Prem
Kumar Gupta (PW-1) to be that of his brother Nandu Prasad Gupta.
Subsequently, after completing all the legal formalities, on the basis of
the information received during investigation, the offence was registered
against the accused persons under Sections 302, 201/34 and 364 IPC
and Section 25 of the Arms Act. After investigation, charge-sheet was
filed against the accused persons and the matter was put to trial before
the Court of First Additional Sessions Judge, Ambikapur, District
Surguja, where the case was registered as Sessions Trial No.218/2004.
7. In order to establish the guilt of the accused persons, the
Prosecution examined as many as 15 witnesses. The statements of the
accused persons were also recorded under Section 313 of Cr.P.C. in
which they denied the charges levelled against them and pleaded their
innocence and also pleaded false implication in the case.
8. Initially, there were in all eight accused persons were put to trial:-
Accused Persons
1 Mahendra Das 5 Yashwant Khutiya
2 Prakash Painkra 6 Kailash Baghel
3 Rajesh @ Raka 7 Tarun Singh
4 Devendra Yadav 8 Anil Rawani
9. During the pendency of the trial, one of the accused persons
namely Mahendra Das had expired and the trial thereafter proceeded
with the remaining seven accused persons. Out of the seven accused
persons put to trial, the Trial Court vide the impugned Judgment dated
10.9.2012 acquitted four of the accused persons:-
Acquitted Persons
1 Prakash Painkra 3 Kailash Baghel
2 Tarun Singh 4 Devendra Yadav
10. The Trial Court convicted three accused persons, whose names
are given below, for the offence punishable under Section 364 of I.P.C.
with the aid of Section 149 of I.P.C., Section 302 of I.P.C. with the aid of
Section 149 of I.P.C. and Section 201 of I.P.C and sentenced them as
described in the preceding paragraphs:-
Convicted Persons
1 Yashwant Khutiya
2 Rajesh @ Raka
3 Anil Rawani
11. It is this Judgment of conviction and sentence, dated 10.9.2012,
rendered, which is under challenge in the present three Criminal
Appeals filed by the aforesaid convicted persons:-
Appellant Appeal
1. Yashwant Khutiya Criminal Appeal No.880/2012
2. Rajesh @ Raka Criminal Appeal No.887/2012
3. Anil Rawani Criminal Appeal No.978/2012
12. The primary contention made by learned Counsels for Appellants
was that the Court below has committed an error in law in finding the
Appellants guilty of the offence under Section 149 of I.P.C., particularly,
in the backdrop where out of seven persons put to trial four have been
acquitted at the first instance itself. Hence, after the acquittal of the four
accused persons, the necessary ingredients for making out of an
offence under Section 149 of I.P.C. not being available, the conviction
under Section 149 of I.P.C. is per se bad in law and deserves to be set
aside.
13. According to learned Counsels for Appellants, the entire
conviction is based upon circumstantial evidence and the learned Court
below has not appreciated the fact that the nature of circumstantial
evidence said to have been collected by the Investigating Agency and
which has been adduced before the Trial Court is not sufficient and
strong enough to complete the chain of links leading to the conclusive
proof of the Appellants alone being responsible for the commission of
the said offence.
14. Learned Counsels for Appellants submitted that in order to make
out an offence under Section 149 of I.P.C., the necessary ingredient as
is required under Section 141 of I.P.C. which defines "unlawful
assembly" has to be met. The necessary ingredient primarily is the
requirement of five or more persons with a common object getting
together for committing any of the acts which is reflected in Section 141
of I.P.C. In the instant case, though eight persons initially were put to
trial, one of them having died in between, the trial continued for seven
persons and of which also since four of them stand acquitted, only three
persons were left. Thus, the present Appellants could not have been
convicted with the aid of Section 149 of I.P.C. without there being more
than five or more persons with common object for the commission of the
said offence.
15. Learned Counsels for Appellants in support of their contentions
have relied upon the decisions rendered by the Hon'ble Court in the
case of "Vijay Kumar Pandurang Thakre & Others Vs. State of
Maharashtra" [2017 (4) SCC 377] and "Ranjit Singh Vs. State of
Punjab & Others" [2013 (16) SCC 752].
16. In "Vijay Kumar Pandurang Thakre" (supra), the Hon'ble
Supreme Court has in very categorical terms dealt with the ingredients
required for the applicability of Section 149 of I.P.C. According to Hon'ble
Supreme Court, in the absence of evidence of any conspiracy or
common object being established, the accused persons at best could be
held responsible for their individual acts. Moreover, unless it is
established, of the accused to be an active member of an unlawful
assembly, i.e., in the assembly of more than five or more persons, and
of having actively participated with some overt act with necessary
criminal intention, it cannot be held to be an act of unlawful assembly.
17. In the matter of "Ramanlal & Anr. Vs. State of Haryana" [2015
(11) SCC 1], the Hon'ble Supreme Court has considered the scope of
applicability of Section 149 of I.P.C. and relying upon the Constitutional
Bench's decision in "Mohan Singh Vs. State of Punjab" has held that:-
"applying the above principles to the case at hand, we
are of the view that the provisions of Section 149 of the
IPC are no longer available to the prosecution for
convicting the appellants whose number is reduced to 4
consequent upon the acquittal of remaining accused
persons..." (see Para 7 to 13)
18. In "Ranjit Singh Vs. State of Punjab & Ors." [2013 (16) SCC
752], the Hon'ble Supreme Court has held that mere presence in an
assembly does not make a person a member of that unlawful assembly,
unless he has done an overt act or omitted to do something which would
show that he was a member of that unlawful assembly. (see Para 30,
32, 34, 38, & 40)
19. In the case of "Nagesar Vs. State of Chhattisgarh" [2014 (6)
SCC 672], the Hon'ble Supreme Court has held that mere presence or
association alone is not sufficient to hold everyone of them criminally
liable for the offences committed by others unless there is sufficient
evidence to show that each one also intended, or knew the likelihood of
commission of such offence. (see Para 10 to 14)
20. From the plain reading of Section 149 of I.P.C., it clearly reflects
that the said Section prescribes for an assembly of five or more persons
so as to be designated as an "unlawful assembly". It is also the
requirement of law that the members of the so called "unlawful
assembly" apart from being five or more persons, should also have a
common object of committing of an offence. Thus, to bring home the
main charge with the aid of Section 149 of I.P.C., it is incumbent upon
the prosecution to prove the offence to have been committed firstly by
the members of the unlawful assembly and with a common object and
intention of committing an offence. The moment when in the instant case
out of seven persons put to trial, four stood acquitted and only three
persons found to have been involved in the commission of the offence,
the charge of the offence with the aid of Section 149 of I.P.C.
automatically would get dropped. Thus, the impugned Judgment to the
extent of the Appellants being found guilty for the offence under Sections
364 and 302 of I.P.C. both with the aid of Section 149 of I.P.C. does not
seem to be proper, legal and justified. The Judgment of conviction of the
three Appellants with the aid of Section 149 of I.P.C. thus is not
sustainable and to the aforesaid extent the Judgment of the learned
Court below deserves to be and is accordingly set aside.
21. Assailing the impugned Judgment on merits, learned Counsels
appearing for each of the Appellants contended that the finding of the
Court below of conviction and imposition of sentence against the
Appellants is apparently bad and is not based on sustainable, credible
and clinching evidence. At the same time, the finding is totally contrary
to the evidence available on record and is therefore liable to be set-
aside/quashed. According to learned Counsels for Appellants, the
Prosecution has failed to bring the material evidence in the course of
examining the Witnesses and has failed to bring the material and
clinching circumstantial evidence to complete the chain of events with
which the three Appellants could be connected firstly for attracting the
provisions of unlawful assembly as is required under Section 149 of
I.P.C., secondly for making out a case for abduction and thirdly the
committing of the offence of murder of the Deceased.
22. Learned Counsels for Appellants further contended that the
Prosecution has also not led any strong circumstantial evidence for
completing the chain of events as regards the concealment of the dead
body of the Deceased. On this ground also it was pleaded that the
conviction of the Appellants was not sustainable. That, since the
Prosecution has failed miserably in leading strong evidence and without
there being a complete chain of events leading to the conclusive proof of
the offence to have committed none other than the three Appellants, the
impugned Judgment is difficult to be sustained and the same therefore
deserves to be set-aside/quashed and the Appellants are entitled to be
acquitted of the charges levelled against them.
23. So far as the conviction of Yashwant Khutiya in Cr.A. No.880/2012
is concerned, the entire conviction is based upon the circumstantial
evidence. Three of the circumstances relied upon by the learned Court
below for convicting him are the memorandum statements of the
Yashwant Khutiya himself to the extent - (i) disclosing the place of
incident, (ii) recovery of a jacket of the Deceased from the place of
incident and (iii) the recoveries that were made from Yashwant Khutiya.
Yashwant Khutiya is said to be the driver of the vehicle involved in the
incident, i.e., a Marshall Jeep.
24. According to learned Counsel for Appellant - Yashwant Khutiya,
what is to be appreciated is the fact that there is no direct evidence so
as to implicate him in the commission of the offences. As is well settled,
that suspicion howsoever strong it be is not sufficient for convicting a
person unless there are credible and cogent evidence.
25. One of the main Witnesses in the instant case is PW-1 Prem
Kumar Gupta who is the brother of the deceased Nandu Prasad Gupta
and who is also the Complainant or the lodger of the FIR. The plain
reading of the FIR lodged by PW-1 Prem Kumar Gupta would reflect that
while lodging the FIR, he did not disclose the name of Yashwant
Khutiya. At the time of lodging of the FIR, there was only a reference of
Anil Rawani, the Appellant in Cr.A. No.978/2012 and 3-4 other
accomplices. Yashwant Khutiya was got implicated on the basis of
information that was received by PW-1 Prem Kumar Gupta who had
telephoned the transport agency at Ludeg from where Anil Rawani had
hired the vehicle and on calling upon the owner of the travel agency, it
was informed of Yashwant Khutiya being the driver of the said Marshall
Jeep.
26. It is necessary to appreciate at this juncture that the Prosecution
has not been able to satisfactorily prove the involvement of Yashwant
Khutiya in the murder of the Deceased. He was not identified by any of
the prosecution witnesses both in respect of the offence of assaulting
and murdering the Deceased and also in respect of his presence at the
place of occurrence, except for the hearsay evidence that he was the
driver of the said Marshall Jeep which belonged to a travel agency at
Ludeg. It is also pertinent to mention that the Test Identification Parade
of Yashwant Khutiya was not conducted; neither was the owner of the
said Marshall Jeep examined. Surprisingly, the owner of the said
Marshall Jeep was neither cited as a Witness nor was he examined by
the Prosecution. To add with, is the fact that at the first instance when
PW-1 Prem Kumar Gupta lodged the FIR, the name of Yashwant
Khutiya was neither divulged nor did his name appear in the FIR. The
Prosecution has also failed miserably to prove the aspect of Yashwant
Khutiya to be involved with the other accused persons and shared the
common object and intention of abducting and murdering the Deceased.
27. Another factual matrix as is evident from the evidence of the prime
witness PW-1 Prem Kumar Gupta is that he did not firstly knew the
driver and secondly there is no evidence of his hinting towards
Yashwant Khutiya being the driver of the said Marshall Jeep. As regards
the dead body of the Deceased being retrieved at the instance of
Yashwant Khutiya, there are also some discrepancies so far as the
retrieving of the dead body from the bank of Jheenk river is concerned.
According to learned Counsels for Appellants there has been no
independent witness in support of the Prosecution in this regard. As per
the Prosecution and the records of the learned Court below, the
information regarding the dead body lying near the culvert of Jheenk
river is dated 27.11.2003. Yashwant Khutiya was arrested on
28.11.2003 and his memorandum statement was recorded on
28.11.2003 at 4:30pm. Therefore, the place of incident, recovery of dead
body was not a new fact which could be discovered on the basis of
memorandum statement given by him.
28. In view of the aforesaid factual matrix, we are of the considered
opinion that with the aforesaid shortcomings in the prosecution
evidence, it cannot be said that circumstantial evidence with the
aforesaid shortcomings can complete the chain of events required for us
to reach to a conclusion that all the circumstances points towards
Yashwant Khutiya also being involved in committing the alleged offence
under Sections 364/149 and 302/149 of I.P.C. Thus, one of the
circumstance that the place of incident was disclosed by Yashwant
Khutiya fails, as the place of incident was already in the knowledge of
the Prosecution on 26.11.2003 whereas the so called memorandum was
recorded on 28.11.2003.
29. In the matter of Thimma Vs. State of Mysore [AIR 1971 SC
1871], the Hon'ble Supreme Court has held that the fact already
discovered from other sources cannot be discovered afresh even if the
relevant information is extracted from the accused. (see Para 10 & 11).
30. Coming to the Appeal of Rajesh @ Raka, i.e., Cr.A. No.887/2012,
it is the contention of learned Counsel for Appellant - Rajesh @ Raka
that he also has been implicated only on the circumstantial evidence
with no substantial evidence to directly implicate him in the commission
of the offence. His name was not available at the time of lodging of the
FIR itself by PW-1 Prem Kumar Gupta as would be evident from the fact
that when the FIR that was lodged both for the offences under Section
364 of I.P.C. and Section 302 of I.P.C., it was only the name of Anil
Rawani which was reflected along with 3-4 other persons whose name
were neither deposed nor was Prem Kumar Gupta aware of those
names at the relevant point of time.
31. Learned Counsel for Appellant - Rajesh @ Raka also contended
that in addition to the name of Rajesh @ Raka not being disclosed in the
FIR it was also not reflected at the time of recording of the initial
statement; neither is there any evidence showing his active participation
in the entire commission of the offence or the role played by him as
regards his involvement in the incident. According to learned Counsel,
the two prime Witnesses on the basis of which Rajesh @ Raka was got
implicated, is PW-1 Prem Kumar Gupta and PW-2 Umakant Choudhary.
PW-1 Prem Kumar Gupta is the Complainant who had disclosed the
name of Rajesh @ Raka at a much later stage after getting some
information by another Witness who in turn had enquired upon about the
unregistered Marshall Jeep and was informed that the said Jeep was
from Ludeg. Further, on enquiring from the travel agency at Ludeg, it
was informed that the said Jeep was belonging to Ashok Agrawal and
Santosh Agrawal. Further, it was they who had informed that the said
Jeep was on the given date taken on rent by Anil Rawani and the driver
was Yashwant Khutiya, for which again there was no direct or
corroborative evidence. Similar is the evidence of PW-2 Umakant
Choudhary who is the Witness of the memorandum statement of Rajesh
@ Raka in Exhibit P-12 wherein there is a statement of Rajesh @ Raka
also being in possession of a Bhujali (Khukhari knife) and the said
weapon being recovered at the instance of Rajesh @ Raka. Exhibit P-18
is the seizure memo in respect of recovery of Bhujali at the instance of
Rajesh @ Raka.
32. Further contention of learned Counsel for Appellant - Rajesh @
Raka is that the Prosecution has failed to lead cogent evidence as
regards the injuries said to have been caused from the alleged weapon
recovered from Rajesh @ Raka. None of the injuries sustained by the
Deceased could be attributed from the alleged weapon in his
possession. There is a lot of omissions and contradictions in the
statement of PW-1 Prem Kumar Gupta in his court statement as
compared to the statement recorded under Section 164 Cr.P.C. or the
statement made by him before the Police Authorities initially at the time
of lodging of the FIR and the statement that was immediately given
thereafter.
33. As regards the Appeal of Anil Rawani i.e. Cr.A. No.978/2012,
learned Counsel for Appellant - Anil Rawani contended that in addition to
the arguments rendered by the learned Counsels appearing for the two
other connected Appellants, all that he would like to add is that during
the entire trial, the Prosecution has not been able to convincingly prove
the involvement of Anil Rawani in the commission of the offence. It was
also the contention of learned Counsel that the entire allegations and
evidence adduced by the Prosecution is based on circumstantial
evidence, based only on assumptions and presumptions. All the
circumstances gathered together by the Prosecution do not make a
complete chain of links. All the links connected or being referred to as
circumstantial evidence are unconnected to each other so as to reach to
the conclusion that all the links and the chain of events lead to the only
conclusion of Anil Rawani being involved in the commission of the
offence from the start till the end of and also to reach to the positive
conclusion that it was only Anil Rawani alone who could have committed
the offence both so far as the abduction part at the first instance and
murdering the Deceased subsequently.
34. Further contention of learned Counsel for Appellant - Anil Rawani
was that except for the statement of PW-1 Prem Kumar Gupta, there is
no cogent evidence led by the Prosecution to establish the involvement
of Anil Rawani in the commission of the offence. Learned Counsel tried
to submit that even the statement of PW-1 Prem Kumar Gupta does not
have any sufficient force nor has it corroborated by any supporting
evidence. According to him, the Prosecution has also not been able to
corroborate the evidence during the course of investigation from the
medical and forensic evidence.
35. Learned Counsel for Appellant - Anil Rawani further contended
that there was no strong motive available for Anil Rawani to have
committed the said offence. The alleged story made out by the
prosecution of Anil Rawani harassing the wife of the Deceased couple of
nights earlier when the Deceased and his wife was going on an cycle
rickshaw also is not sufficient enough for him to gather the animosity to
the extent of taking the life of the Deceased. Thus, for all the aforesaid
reasons, learned Counsel for Appellant - Anil Rawani prayed for the
quashment of the impugned Judgment of conviction and for acquittal of
Anil Rawani.
36. Opposing the Appeals, learned State Counsel submits that the
circumstances brought together by the Prosecution in the course of
investigation lead to the only conclusion of the three Appellants being
involved in the commission of the crime. According to learned State
Counsel, the Prosecution has been able to establish the motive and
reason for the Appellants to assault the Deceased, the presence of the
Appellants at the place of incident and the fact that PW-1 Prem Kumar
Gupta saw the Appellants forcefully taking the Deceased from his hotel
and immediately thereafter the Deceased was found dead with his body
dumped beneath the bridge of the Jheenk river.
37. Learned State Counsel further submits that the memorandum
statement made by the three Appellants, the seizure made at the
instance of the three Appellants, the statement of PW-1 Prem Kumar
Gupta corroborate the entire circumstances, the chain of events and the
links with which the entire chain of events gets complete and leads to
the only conclusion that the offence in fact has been committed by the
Appellants alone. The chain of events establishes the case of the
Prosecution beyond all reasonable doubts and the conviction of the
Appellants thus does not warrant interference.
38. Learned State Counsel has further, referring to the statement of
PW-1 Prem Kumar Gupta and also referring to the FIR where the name
of Anil Rawani was disclosed, contended that it is a case where the
Prosecution has sufficiently proved the case so far as the involvement of
Anil Rawani is concerned. That, Anil Rawani was a person who was
known to the Deceased and to the other Witnesses who were examined
on behalf of the Prosecution all of whom belong to the same locality. The
weapon seized at the instance of Anil Rawani and the other Appellants
matches the injuries that were suffered by the Deceased.
39. Learned State Counsel also drew the attention of this Court to the
incident that took place a couple of nights prior to the incident where Anil
Rawani is said to have harassed the Deceased and his wife when they
were travelling in the rickshaw. The incident that happened on the
following day where Anil Rawani was slapped by the PW-1 Prem Kumar
Gupta for the previous night's incident. The fact that Anil Rawani and his
friends had threatened the Deceased of dire consequences at the hotel
of the Deceased himself during the day time on the two earlier days.
Learned State Counsel thus submits that the aforesaid incidents and
evidence give strong indications so far as the object, intention and
motive behind the Appellants committing the crime.
40. After hearing all the parties in the Appeals, on a plain reading of
the FIR lodged on 27.11.2003, as is available in the Paper-Book, itself
would show that the Police Authorities had received the information
about the dead body lying at the culvert of Jheenk river and the post-
mortem was also got conducted on 27.11.2003 itself. Therefore, the
finding of learned Court below to the extent that the recovery of the body
was at the instance of memorandum statement made by Yashwant
Khutiya stands disproved. Further, from the reading of the evidence of
the prosecution witnesses, it would reveal that the none of the
Witnesses have deposed of having either seen him at the place from
where the Deceased was abducted nor has any of the Witnesses seen
him driving the said vehicle on the date of incident. Whatever little
evidence that the Prosecution in fact could produce before the Court
were all secondary evidence without any corroboration being made from
any strong, material and cogent evidence.
41. So far as the recovery of a jacket belonging to the Deceased from
the place of incident as also the recovery of a handkerchief on the said
vehicle allegedly used in the commission of the offence is concerned,
the Prosecution in fact has failed to lead any substantial evidence with
which it could be established firstly that the Deceased was wearing a
jacket at the time of incidence. This fact was not even reflected at the
first instance when the FIR was lodged by PW-1 Prem Kumar Gupta.
There is also no conclusive proof available on record to hold that the
jacket which was recovered from the scene of occurrence did belong to
the Deceased. The FIR was lodged promptly by PW-1 Prem Kumar
Gupta and it was before him that the Deceased was abducted on the
night of 25.11.2003 and on the same night PW-1 Prem Kumar Gupta
had gone to the Police Station and while describing the Deceased he
did not mention of the Deceased wearing a jacket. Thus, this finding of
the Court also does not seem to be on the basis of any reliable
evidence; nor is there any corroborative evidence available to implicate
Yashwant Khutiya.
42. Another circumstance for the conviction of Yashwant Khutiya was
the recovery of the Marshall Jeep and where on the seats bloodstains
were found. Admittedly, from the evidence which have been adduced by
the Prosecution, the blood on the seat cover of the said Marshall Jeep
was of 'O' group whereas the contention of the Prosecution is that the
Deceased had the blood group of 'B' group. Though learned Court below
in the course of holding Yashwant Khutiya guilty has reached to the
conclusion that the blood found in the Marshall Jeep of 'O' group would
be that of any of the accused persons, however, the learned Court
below has totally failed in getting the corroborative evidence in this
regard. Neither is there any evidence led by the Prosecution
establishing the fact that some of the accused persons also suffered
injuries on the date of incident. Secondly, there is also no evidence to
show any of the accused who if at all had suffered any injuries had blood
group 'O'.
43. As regards the recovery of a handkerchief from the Marshall Jeep
alleged to have been used in the commission of the offence, what is
necessary to be seen at this juncture is that the said handkerchief was
not sent either for FSL or for the Serologist report and for this simple
reason itself it would be difficult to reach to the conclusion that the said
handkerchief firstly belongs to the Deceased and also whether the
bloodstains found on the said handkerchief did match the blood group of
the Deceased so as to even draw an inference.
44. Thus, from the evidence of the Prosecution, it stands established
that the entire conviction of Yashwant Khutiya was based on suspicion
alone. It is also established from the evidence led by the Prosecution
that there is no cogent evidence adduced by the Prosecution which
could directly point finger upon Yashwant Khutiya of having played an
active role in the commission of the offence of murder of Deceased
Nandu Prasad Gupta.
45. Having heard the contentions of learned Counsel for Appellant -
Rajesh @ Raka, this Court finds that, apart from the two Witnesses i.e.
PW-1 Prem Kumar Gupta and PW-2 Umakant Choudhary, there was no
other evidence or Witness examined on behalf of the Prosecution on the
basis of which the case of the Prosecution gets strengthened so far as
the involvement of Rajesh @ Raka in the commission of the said
offences is concerned. There is an absence of strong corroborative
evidence to substantiate the case of the Prosecution, coupled with the
fact that there is also no evidence in respect of any injuries sustained by
the Deceased from the weapon allegedly seized from the possession of
Rajesh @ Raka.
46. With the aforesaid evidence, the chain of circumstances in the
case becomes too weak for reaching to the conclusion that Rajesh @
Raka also was firstly involved in the commission of the offence and
secondly played an active role in the commission of the offence and
thirdly he too had the common intention and object of assaulting the
Deceased. Thus, the entire conviction of Rajesh @ Raka is again based
on assumptions and presumptions without any strong material and
cogent evidence collected in the course investigation. Hence, the
impugned Judgment of conviction in respect of Appellant - Rajesh @
Raka for the charges levelled is also not sustainable and the same
deserves to be set aside.
47. Having heard the contentions put forth on either side so far as Anil
Rawani, the Appellant in Cr.A. No.978/2012 is concerned, if we look into
the records it would reveal that his name stands reflected from the very
beginning of the case. PW-1 Prem Kumar Gupta, who is the
Complainant and the brother of the Deceased, is also an eye-witness to
the incident so far as abduction of the Deceased is concerned. He has
in very categorical terms submitted that he knows Anil Rawani quite
well. It was also stated by him that he had seen Anil Rawani along with
some other accused persons who had forcefully taken the Deceased
along with them in an unnumbered new Marshall Jeep. The name of Anil
Rawani is also reflected in the FIR that was lodged initially regarding the
abduction of the Deceased.
48. From the afore-given factual matrix of the case, what is apparent
is that the entire prosecution case is strongly based on the evidence of
PW-1 Prem Kumar Gupta. There is no Witness examined by the
Prosecution, who has been able to depose before the Court of having
witnessed the commission of the offence so far as the murder of the
Deceased. The Deceased was forcefully abducted on 25.11.2003 by a
group of people who came on a Marshall Jeep. This incident has been
witnessed by PW-1 Prem Kumar Gupta, the prime witness on behalf of
the Prosecution. PW-1 Prem Kumar Gupta happens to be the elder
brother of the Deceased, who was present at the place from where the
Deceased was abducted. The Deceased was very well known to Anil
Rawani, as there is a statement made by this Witness that he was a
driver in a transport company and who in the past used to come to their
hotel for having food etc. Anil Rawani was the person who had caught
hold of the Deceased also stands established from the evidence of PW-
1 Prem Kumar Gupta.
49. In addition to the aforesaid fact, the PW-2 Umakant Choudhary
has in his deposition accepted that PW-1 Prem Kumar Gupta
immediately after the incident informed him about Anil Rawani and 4-5
other persons having abducted the Deceased. It is also revealed from
the deposition of PW-2 Umakant Choudhary that it was in his presence
that the co-accused Yashwant Khutiya and Devendra Yadav had
informed about Anil Rawani and Mahendra Das (since dead) causing
injuries on the Deceased with sword and knife. In Paragraph-10 of his
deposition, he has again stated that Yashwant Khutiya had stated of Anil
Rawani and Mahendra Das having forcefully made the Deceased to sit
on the Marshall Jeep and took them to a different location. The recovery
of a knife and also the clothes which Anil Rawani was wearing were also
made before him.
50. PW-2 Umakant Choudhary supports the contentions of PW-1
Prem Kumar Gupta to the extent of having immediately disclosed the
involvement of Anil Rawani in the abduction of the Deceased. The body
of the Deceased was found on the next date i.e. on 26.11.2003. The
period of death seems to be the intervening night of 25 th & 26th of
November, 2003. On the previous 2-3 days there was continuous
quarrel and fight between PW-1 Prem Kumar Gupta, the Deceased and
Anil Rawani, which again is the consistent stand taken by Prem Kumar
Gupta right from the time of lodging of the FIR and in all other
statements that he has made before the Police and also before the
Court as PW-1.
51. In the given factual backdrop of the case what is to be seen is,
whether the chain of events completes the circumstances. As has been
discussed in the preceding paragraphs, since Section 149 of I.P.C. is not
made out, the burden of proving the substantial charges levelled against
the Appellants now falls upon the Prosecution to prove the overt-act on
the part of Anil Rawani. It is for the Prosecution to prove its case by
showing the act and the role played by Anil Rawani in the course of
committing the offence, leading to the death of the Deceased. The entire
prosecution story is strongly based upon the evidence of PW-1 Prem
Kumar Gupta and PW-2 Umakant Choudhary, though there are other
Witnesses also examined.
52. As has been discussed earlier in respect of the Criminal Appeals
filed by other two co-accused Appellants namely Yashwant Khutiya and
Rajesh @ Raka, the identification and identity of those two Appellants
has become doubtful as there is no direct evidence available so far as
any of the prosecution witnesses having seen Yashwant Khutiya and
Rajesh @ Raka. These two persons have got implicated on the
memorandum statement, a circumstance which by itself is not strong
enough an evidence for drawing an inference of having committed an
offence or being involved in the commission of offence. Since these
three Appellants namely Anil Rawani, Yashwant Khutiya and Rajesh @
Raka were working with the same transport firm and they were
invariably seen together cannot be a strong ground for assuming that
they all were together and were directly involved in the assault made on
the Deceased to which he succumbed.
53. From the factual matrix narrated in the preceding paragraphs, it
stands established that the presence of Appellant - Anil Rawani at the
time of abduction of the Deceased stands established; whereas the
presence of other two Appellants - Yashwant Khutia and Rajesh @
Raka, has not been conclusively proved.
54. There is no evidence of the Deceased being left by Anil Rawani
and by his friends after abducting him on 25.11.2003 at 10:15pm. The
body of the Deceased was found on the next date itself, i.e., on
26.11.2003. The duration of death was at the intervening period.
Therefore, the involvement of Anil Rawani firstly in the abduction of the
Deceased and secondly in his death stands strongly connected, unlike
the other two Appellants - Yashwant Khutiya and Rajesh @ Raka.
55. Circumstantial evidence is evidence that relies on an inference to
connect the evidence for reaching to a conclusion of fact. In other
words, circumstantial evidence is a proof based on a fact or a set of
facts from which one could only infer the fact in issue which in the
instant case is the involvement of the Appellants in the commissioning of
the offence. In a case based on circumstantial evidence, the test of
bringing the case stands entirely on a different footing than in a case
with direct evidence. In a case of circumstantial evidence, the
Prosecution has to first establish the motive for the commission of the
crime and other relevant evidence collected in the course of
investigation which gives a strong indication for drawing an inference
against the accused Appellants.
56. Hon'ble the Supreme Court in the case of "Krishnan Vs. State"
[2008 (15) SCC 430] dealing with the ingredients required for making
out a case of circumstantial evidence, has held as under:-
"15. ...This Court in a series of decisions has consistently
held that when a case rests upon circumstantial evidence,
such evidence must satisfy the following tests:-
(i) the circumstances from which an inference of
guilt is sought to be drawn, must be cogently and
firmly established;
(ii) those circumstances should be of definite
tendency unerringly pointing towards guilt of the
accused;
(iii) 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 none
else; and
(iv) the circumstantial evidence in order to sustain
conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but
should be inconsistent with his innocence.
[See Gambhir v. State of Maharashtra (1982) 2 SCC 351 :
(AIR 1982 SC 1157)] See also Rama Nand v. State of
Himachal Pradesh (1981) 1 SCC 511 : (AIR 1981 SC
738), Prem Thakur v. State of Punjab, (1982) 3 SCC 462 :
(AIR 1983 SC 61), Earabhadrappa v. State of Karnataka,
(1983) 2 SCC 330 : (AIR 1983 SC 446), Gian Singh v. State
of Punjab, 1986 Suppl. SCC 676 : (AIR 1987 SC
1921), Balvinder Singh v. State of Punjab (1987) 1 SCC 1 :
(AIR 1987 SC 350)."
57. It is settled position of law that in a case based on circumstantial
evidence, the conclusion of guilt drawn should be fully proved. All the
circumstances should be complete and there should be no gap left in
the chain of evidence. The proved circumstances must be consistent
only with the hypothesis of guilt of the accused and totally inconsistent
with his innocence. The chain of evidence should not leave any
reasonable ground for a conclusion consistent with the innocence of the
accused. It must also be such as as to show that within all human
probability the act must have been done by the accused alone.
58. In "Raju Vs. State by Inspector of Police" [2009 11 SCC 111],
the Hon'ble Supreme Court has reiterated the circumstances which are
required to complete a chain of circumstances for convicting the
accused and held that a conviction can be based solely on
circumstantial evidence if the circumstances are tested by the
touchstone of the law relating to circumstantial evidence whereby the
chain of events would clearly draw inference of the guilt being cogent
and firmly established and the guilt also is unerringly pointed out
towards the accused and the circumstances also lead us to the only
conclusion that the accused is incapable of giving proper explanation to
any other hypothesis. For a conviction based upon circumstantial
evidence the chain of circumstances against the accused persons has
to be so complete that it excludes the possibility of any hypothesis other
than the one which is consistent with the guilt of the accused and
inconsistent with his innocence.
59. Further, in the case of "G. Parshwanath Vs. State of Karnataka"
[2010 (8) SCC 593], the Hon'ble Supreme Court has held that 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, where various links in chain are in themselves
complete, then the false plea or false defence may be called into aid
only to lend assurance to the Court.
60. Similarly, in "Shankar v. State of Haryana" [2015 SCW 5324], in
Para 7, the Hon'ble Supreme Court has held that:-
"7. ...The normal principle is that 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 these 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 of any hypothesis other than that of
the guilt of the accused and inconsistent with their
innocence."
61. Taking into consideration all the aforesaid factual matrix of the
case, the evidence that has come on record and the legal position so far
as circumstantial evidence is concerned, it stands established that the
Prosecution has not been able to prove its case beyond reasonable
doubts so far as the involvement of Appellant - Yashwant Khutiya in
Cr.A. No.880/2012 so also the involvement of Appellant - Rajesh @
Raka in Cr.A. No.887/2012 is concerned, coupled with the fact that the
provisions of Section 149 of I.P.C. does not get attracted in the absence
of there being five or more persons available.
62. Thus, Cr.A. No.880/2012 filed by Yashwant Khutia and Cr.A.
No.887/2012 filed by Rajesh @ Raka both deserve to be and are
accordingly allowed. The impugned Judgment dated 10.9.2012 so far as
convicting the said two Appellants for the offence punishable under
Sections 364/149, 302/149 & 201 of I.P.C. stands set-aside/quashed.
Both the Appellants Yashwant Khutiya and Rajesh @ Raka are
acquitted of the charges levelled against them giving the benefit of
doubt.
63. However, as regards the circumstantial evidence in the case of
Appellant - Anil Rawani in Cr.A. No.978/2012, the motive stands
established on account of the incident that transpired on 23.11.2003
when for the first time at night time when the Deceased along with wife
and family was going on a rickshaw, the accused Anil Rawani is said to
have intervened and misbehaved with the wife of the Deceased. This led
to the certain quarrel between the Deceased and Anil Rawani. On the
next date i.e. on 24.11.2003, PW-1 Prem Kumar Gupta, who is the elder
brother of the Deceased, having slapped Anil Rawani for his previous
night's misbehaviour. Thereafter, the threat given to the Deceased and
his brother Prem Kumar Gupta by the colleagues of Anil Rawani of dire
consequences on the same day in the evening as also on the next day
in the morning. This followed the presence of Anil Rawani at the hotel of
the Deceased at the time of abduction having witnessed by PW-1 Prem
Kumar Gupta. The name of Anil Rawani finding place in the FIR. Anil
Rawani having taken the Marshall Jeep on rent from Ludeg village.
Body of the Deceased being recovered immediately after he went
missing upon being abducted forcefully being taken on the Marshall
Jeep. The statement of PW-1 Prem Kumar Gupta so far as the
involvement of Anil Rawani being corroborated by PW-2 Umakant
Choudhary. All the aforesaid circumstances are strong enough
circumstantial evidence which establishes the involvement of Anil
Rawani in the commission of the offence of death of deceased Nandu
Prasad Gupta.
64. To the aforesaid extent, the conviction of Appellant - Anil Rawani
does not warrant any interference and the Cr.A. No.978/2012 filed by
him deserves to be and is accordingly dismissed affirming the conviction
of sentence awarded to him, except the fact that the offences would not
be with the aid of Section 149 of I.P.C. In other words, the Appellant -
Anil Rawani would stand convicted directly for the offence punishable
under Sections 364, 302 & 201 of I.P.C.
65. In the result, the Cr.A. No.880/2012 of Yashwant Khutiya and the
Cr.A. No.887/2012 of Rajesh @ Raka both stand allowed. Since both
Yashwant Khutiya and Rajesh @ Raka are stated to be in Jail, they shall
be released forthwith, if not required in any other case. The
Cr.A.No.978/2012 filed by Anil Rawani stands dismissed.
Sd/- Sd/-
(P. Sam Koshy) (Rajani Dubey)
JUDGE JUDGE
