Kishanlal vs State Of M.P.
2021 Latest Caselaw 3937 MP

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                                  Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

            HIGH COURT OF MADHYA PRADESH
                   BENCH GWALIOR

                        DIVISION BENCH

       G.S. Ahluwalia and Rajeev Kumar Shrivastava J.J.

                        Cr. A. No. 252/2010

                    Kishanlal Vs. State of M.P.

Shri Anoop Nigam, Counsel for the appellant
Shri Rajeev Upadhyaya, Counsel for the State

Date of Hearing         : 31-7-2021
Date of Judgment        : 04-Aug-2021
Approved for Reporting :

                             Judgment

                           04-Aug-2021

Per G.S. Ahluwalia J.


1.    This Criminal Appeal has been filed under Section 374 of

Cr.P.C. against the judgment and sentence dated 1-1-2010 passed by

Sessions Judge, Guna in S.T. No. 281/2009, by which the appellant

has been convicted under Section 302 of I.P.C. and has been

sentenced to undergo Life Imprisonment and a fine of Rs. 200/- with

default imprisonment of one month R.I.

2.    According to the prosecution story, Dehati Nalishi was lodged

by the complainant Smt. Manju Bai on the allegations that, at about 3

P.M., She had gone to a nearby well along with her 7 years old son

and 3 years old daughter for fetching water.            Her 8 months old

daughter Nikita was left by her in the house along with her husband
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                                   Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

as he was playing with her. After about 30 minutes, when She came

back, She found that her husband Kishanlal was not in the house and

her 8 months old daughter was also not there. She thought that her

husband might have taken her daughter along with him. Thereafter,

She found that her daughter Nikita was lying on the floor and was

covered with Shawl. When She picked her, then her headless body

came in her hand, whereas her head was lying on the floor. There

was a pool of blood on the floor. She started screaming, then her

neighbours also came there. Her husband Kishanlal was not there.

Thereafter, Phool Singh went in search of her husband, and found

that the appellant Kishanlal was coming from the riverside. He has

also seen the dead body of his daughter.             It appears that some

unknown person has killed her daughter Nikita.

3.    The police after registering F.I.R., started investigating the

matter. The appellant was arrested. Blood stained Sickle and blood

stained cloths of the appellant were seized from his possession. The

spot map was prepared, the post-mortem of the dead body was

conducted. The statements of the witnesses were recorded. Human

blood was found on sickle and cloths. The police after concluding

the investigation, filed the charge sheet against the appellant for

offence under Section 302 of I.P.C.

4.    The Trial Court by order dated 18-8-2009 framed charge under

Section 302 of I.P.C.

5.    The appellant abjured his guilt and pleaded not guilty.
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                                     Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

6.    The prosecution in order to prove its case, examined

Smt.Manju bai (P.W.1), Pinki Bai (P.W.2), Virjo Bai (P.W.3), Phool

Singh (P.W.4), Omprakash (P.W.5), Ramesh Chandra (P.W.6), Dr.

S.C. Tantiya (P.W.7), D.J. Rai (P.W.8), Vishram (P.W.9) and

Radheshyam Yadav (P.W.10).

7.    The appellant did not examine any witness in his defence.

8.    The Trial Court by judgment and sentence dated 1-1-2010,

convicted the appellant for offence under Section 302 of I.P.C. and

sentenced him to undergo the Life Imprisonment, and a fine of Rs.

200/- in default 1 months R.I.

9.    Challenging the judgment and sentence passed by the Court

below, it is submitted by the Counsel for the appellant, that all the

witnesses have turned hostile. The appellant was not in the house

and had gone towards river side, therefore, it cannot be said that the

deceased Nikita was in the company of the appellant. So far as blood

found on sickle and cloths are concerned, in absence of blood group,

it cannot be said that the blood was that of the deceased Nikita.

10.   Per contra, the Counsel for the State supported the findings

recorded by the Court below and submitted that since, the appellant

has failed to prove that when he parted away with the company of his

8 months old daughter, therefore, the burden is on him to prove his

innocence. It is further submitted that the appellant could not have

gone towards riverside after leaving his 8 months old daughter all

alone in the house.
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                                     Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

11.      Heard the learned Counsel for the parties.

12.      Before considering the evidence, this Court thinks it apposite

the find out as to whether the death of 8 months old Nikita was

homicidal in nature or not?

13.      Dr. S.C. Tantiya (P.W.7) has conducted Post-mortem of the

dead body of the deceased and found following injuries on her body :

             (i) Decapitation of head with upper part of neck
      completely separated from rest of body at C5 level cutting
      all the neck structure (Skin, Muscle, Blood Vessels, Nerves,
      Trachea, Esophagus, Inter-Vertebral Disc at C5,C6 Level)
      and all soft tissues.
             (ii) Incised Wound size 3 X 1 cm X bone deep over
      left Mastoid region.
             (iii) Incised Wound size 10 X .5 cm X Skin deep
      over chest extending from left Mid infra-Clavicular region
      upto Right mid infra Clavicular region. Directed obliquely
      downward-clotted blood seen over margin of wound.
             The Cause of death was shock due to extensive
      hemorrhage due to decapitation.

         All injuries were ante-mortem in nature.

14.      The Post-mortem report is Ex. P.13. This witness was not

cross examined at all.

15.      Thus it is clear that 8 months old Nikita died a homicidal

death.

16.      Now the next question for consideration is that who is the

perpetrator of the offence?

17.      Smt. Manju Bai (P.W.1), who is the mother of the deceased and

wife of the appellant has stated that on the fateful day, She had gone

to a well along with her 7 years old son and 3 years old daughter in

order to fetch water. She left her 8 months old daughter in the house.
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                                    Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

When She came back after about 30 minutes, She found that the head

of the deceased was severed, therefore, She started screaming.

Pinkibai also came there. Thereafter Dehati Nalishi, Ex. P.1 was

lodged. The Dehati Nalishi, Ex. P.1 was read over to the witness,

who admitted that it was lodged by her. She further stated that when

She had gone to fetch water, her husband/appellant, Kishanlal was in

the house and when She came back, he was not there and only the

dead body of the deceased was lying. However, it appears that since,

the witness did not support the prosecution case in respect of Extra

Judicial Confession made by the appellant to this witness, therefore,

She was declared hostile and was cross examined by the public

prosecutor, but he could not elicit anything from this witness which

may indicate, that the appellant had made an Extra Judicial

Confession to her. In cross examination by defence Counsel, this

witness once again re-iterated that when She went to fetch water, the

appellant was in the house.

18.   Pinki bai (P.W.2), Virjo bai (P.W.3), have turned hostile and did

not support the prosecution case.

19.   Phool Singh (P.W.4) also turned hostile on the question that he

was informed by Manju bai (P.W.1) that the appellant has killed the

deceased. This witness was cross examined by the Public Prosecutor.

In cross examination, this witness denied the suggestion that when he

went in search of appellant, then he was coming from the riverside.

20.   Omprakash (P.W. 5) is a witness of seizure. He has stated that
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                                      Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

the appellant had made a Confessional Statement, Ex. P.5 and on his

discovery information, one sickle was seized from his house vide

seizure memo Ex. P.7. The appellant was also arrested vide arrest

memo Ex. P.7. However, this witness did not support the prosecution

on the question of seizure of cloths of the appellant, accordingly on

this limited question he was declared hostile, but nothing could be

elicited from him with regard to seizure of cloths.                       In cross

examination, this witness admitted that the sickles of similar kind are

easily available in the market. However, he denied that the appellant

had not given any discovery information, regarding seizure of sickle.

He further denied that he had put his signatures in the police station.

21.   Rameshchandra       (P.W.       6)   is     the     witness       of     Lash

Panhayatnama , Ex. P.11. He has stated that the dead body of Nikita

was beheaded. A piece of shawl and blood stained earth was seized

vide seizure memo P. 12. He was not cross examined at all.

22.   D.J. Rai (P.W. 8) is the Investigating officer. He has stated that

the appellant was arrested on 30-5-2009 and sickle was seized on the

information given by appellant vide seizure memo Ex. P.7. The blood

stained Paint, Shirt and one Safi was seized from the possession of

appellant vide seizure memo Ex. P.9. The incriminating articles were

sent to F.S.L. Gwalior by memo Ex. P.14 and the F.S.L. report is Ex.P.

15. This witness was briefly cross examined and he denied that no

information regarding sickle was given by the appellant and also

denied that no sickle was seized from his possession.
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                                   Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

23.   Vishram (P.W. 9) has stated that Lash panchnama Ex. P.11 was

prepared. The head of the deceased was separated. The appellant

was arrested vide arrest memo Ex. P.8. His confessional statement is

Ex. P.6 and sickle was seized vide seizure memo Ex. P.7. The sickle

was blood stained. However, he could not explain that whether the

cloths of the appellant were stained with blood or not. The seizure

memo is Ex. P.9. In cross examination, this witness denied that no

discovery information was given by the appellant. He admitted that

the room where wheat husk is stored did not have any door.

24.   Radheshyam Yadav (P.W. 10) is the scribe of Dehati Nalishi,

Ex. P. 1.    He had issued notices, Ex. P.10 to witnesses for the

purposes of preparing lash Panhayatnama. Lash Panchayatnama

Ex. P.11 was prepared. The spot map, Ex. P.16 was prepared on the

information of appellant. A piece of Shawl, blood stained and plain

earth was seized from the spot vide seizure memo Ex. P.12. F.I.R.,

Ex. P.12 was written in the police station Vijaypur. The copy of F.I.R.

was sent to the concerning Magistrate vide Ex. P.19 and the

acknowledgment is Ex. P.19 and the dead body was sent for post-

mortem.     In cross examination, this witness denied that all the

formalities were completed in the police station.

25.   Thus, if the entire evidence is considered, then the following

Circumstances would emerge :

      (i)    The deceased Nikita, a minor girl aged about 8 months

was in the company of appellant/Kishanlal.
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                                    Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

       (ii)    The deceased died a homicidal death because of

decapitation.

       (iii)   Seizure of Blood stained sickle and cloths from the

possession of the appellant.

26.    As the case is based on circumstantial evidence, therefore, this

Court would like to consider the law regarding appreciation of

Circumstantial Evidence.

27.    The Supreme Court in the case of Sharad Birdhichandra

Sarda Vs. State of Maharashtra reported in AIR 1985 SC 1622 has

held as under :

      152. A close analysis of this decision would show that the
      following conditions must be fulfilled before a case against
      an accused can be said to be fully established :
         (1) the circumstances from which the conclusion of
         guilt is to be drawn should be fully established.
         It may be noted here that this Court indicated that the
         circumstances concerned 'must or should' and not 'may
         be' established. There is not only a grammatical but a
         legal distinction between 'may be proved' and 'must be
         or should be proved' as was held by this Court in
         Shivaji Sahebrao Bobade v. State of Maharashtra,
         (1973) 2 SCC 793 : (AIR 1973 SC 2622) where the
         following observations were made :
         "certainly, it is a primary principle that the accused
         must be and not merely may be guilty before a Court
         can convict and the mental distance between 'may be'
         and 'must be' is long and divides vague conjectures
         from sure conclusions."
         (2) the facts so established should be consistent only
         with the hypothesis of the guilt of the accused, that is
         to say, they should not be explainable on any other
         hypothesis except that the accused is guilty.
         (3) the circumstances should be of a conclusive nature
         and tendency.
         (4) they should exclude every possible hypothesis
         except the one to be proved, and
         (5) there must be a chain of evidence so complete as
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                              Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

   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.
153. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.
154. It may be interesting to note that as regards the mode
of proof in a criminal case depending on circumstantial
evidence, in the absence of a corpus delicti, the statement of
law as to proof of the same was laid down by Gresson, J.

(and concurred by 3 more Judges) in The King v. Horry, (1952) NZLR 111, thus :

"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt : the circumstantial evidence should be so cogent and compelling as to convince a jury that upon no rational hypothesis other than murder can the facts be accounted for."

155. Lord Goddard slightly modified the expression 'morally certain' by 'such circumstances as render the commission of the crime certain'.

156. This indicates the cardinal principle of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. State of Bombay, (1960) 2 SCR 460 : (AIR 1960 SC 500). Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases -Tufail's case (1969 (3) SCC 198) (supra). Ramgopal's case (AIR 1972 SC 656) (supra). Chandrakant Nyalchand Seth v. State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19-2-1958), Charambir Singh v. State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4-11-1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration, (1974) 2 SCR 694(696): (AIR 1974 SC 691 at p. 693), Mohan Lal Pangasa v. State of U. P., AIR 1974 SC 1144 (1146), Shankarlal Gyarasilal Dixit v. State of Maharashtra, (1981) 2 SCR 384 (390) : (AIR 1981 SC 765 at p. 767) and M. G. Agarwal v. State of Maharashtra, (1963) 2 SCR 405 (419) : (AIR 1963 SC 200 at p. 206) a

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

five-Judge Bench decision

157. It may be necessary here to notice a very forceful argument submitted by the Additional Solicitor-General relying on a decision of this Court in Deonandan Mishra v. State of Bihar, (1955) 2 SCR 570 (582): (AIR 1955 SC 801 at p. 806), to supplement his argument that if the defence case is false it would constitute an additional link so as to fortify the prosecution case. With due respect to the learned Additional Solicitor General we are unable to agree with the interpretation given by him of the aforesaid case, the relevant portion of which may be extracted thus :

"But in a case like this where the various links as stated above have been satisfactorily made out and the circumstances point to the appellant as the probable assailant, with reasonable definiteness and in proximity to the deceased as regards time and situation ... ... ... ... ... such absence of explanation or false explanation would itself be an additional link which completes the chain."

Last Seen Together

28. Smt. Manju Bai (P.W.1), has stated in her Court evidence that

when She had gone to fetch water from a well, then the appellant was

in the house along with her 8 months old daughter, Nikita and when

She came back, She found that the appellant was not in the house and

the dead body of Nikita was lying on the floor with a shawl over her.

The head of the deceased was separated. In cross-examination by

defence, She once again narrated that when She had gone to fetch

water, the appellant was in the house. This Court evidence is

corroborated by the Dehati Nalishi, Ex. P.1/F.I.R, Ex. P.17 lodged by

her. In Dehati Nalishi, Ex. P.1, She had given the same information.

Thus, it is clear that the case of the prosecution is consistent from the

very beginning that Smt. Manju Bai (P.W.1) had left her 8 months old

daughter, Nikita in the company of her husband Kishanlal and

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

thereafter, when She came back, not only the appellant was not in the

house, but the dead body of the deceased Nikita was lying dead on

the floor with severed head. Thus, the circumstance of Last Seen

Together has been proved by the Prosecution beyond reasonable

doubt.

29. The Supreme Court in the case of Shailendra Rajdev Pasvan

v. State of Gujarat, reported in (2020) 14 SCC 750 has held as

under :

15. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In Bodhraj v. State of J&K, Rambraksh v. State of Chhattisgarh, Anjan Kumar Sarma v. State of Assam following principle of law, in this regard, has been enunciated: (Shailendra Rajdev Pasvan case, SCC OnLine Guj para 16) "16. ...The last seen theory comes into play where the time gap between the point of time when the accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases."

30. The Supreme Court in the case of Ashok v. State of

Maharashtra, reported in (2015) 4 SCC 393 has held as under :

12. From the study of abovestated judgments and many others delivered by this Court over a period of years, the rule can be summarised as that the initial burden of proof is on the prosecution to bring sufficient evidence pointing towards guilt of the accused. However, in case of last seen

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

together, the prosecution is exempted to prove exact happening of the incident as the accused himself would have special knowledge of the incident and thus, would have burden of proof as per Section 106 of the Evidence Act. Therefore, last seen together itself is not a conclusive proof but along with other circumstances surrounding the incident, like relations between the accused and the deceased, enmity between them, previous history of hostility, recovery of weapon from the accused, etc. non- explanation of death of the deceased, may lead to a presumption of guilt.

Here another judgment in Harivadan Babubhai Patel v. State of Gujarat, would be relevant. In this case, this Court found that the time-gap between the death of the deceased and the time when he was last seen with the accused may also be relevant.

31. The Supreme Court in the case of Mahavir Singh Vs. State of

Haryana reported in (0214) 6 SCC 716 has held as under :

12. Undoubtedly, it is a settled legal proposition that the last seen theory comes into play only in a case where the time- gap between the point of time when the accused and the deceased were seen alive and when the deceased was found dead (sic is small). Since the gap is very small there may not be any possibility that any person other than the accused may be the author of the crime............

32. The Supreme Court in the case of Jagroop Singh Vs. State of

Punjab reported in (2012) 11 SCC 768 has held as under :

27. Quite apart from the above, what is argued is that there is a long gap between the last seen and recovery of the dead body of the deceased. As per the material on record, the informant searched for his son in the village in the late evening and next day in the morning he went to the fields and the dead body was found. The post-mortem report indicates that the death had occurred within 24 hours. Thus, the duration is not so long as to defeat or frustrate the version of the prosecution. Therefore, there can be no trace of doubt that the deceased was last seen in the company of the accused persons.

33. The Supreme Court in the case of Rambraksh v. State of

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

Chhattisgarh, reported in (2016) 12 SCC 251 has held as under :

12. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.

13. In a similar fact situation this Court in Krishnan v. State of T.N., held as follows: (SCC pp. 284-85, paras 21-24) "21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar this Court held as follows: (SCC p. 385, para 31) '31. Thus the evidence that the appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded.'

22. This Court in Bodhraj v. State of J&K held that: (SCC p. 63, para 31) '31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible.' It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.

23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.

24. In Jaswant Gir v. State of Punjab, this Court held that in the absence of any other links in the chain of circumstantial evidence, the appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed."

34. Thus, where the time gap between the Last Seen Together and

time of death or recovery of dead body is so less, leading to a solitary

inference that it is the appellant-accused who has committed the

offence, then the burden is shifted on to the appellant-accused to

prove that at what time he had parted away with the company of the

deceased. Further, the sole circumstance of Last Seen Together, may

not be sufficient to hold an accused guilty, therefore, it is necessary to

consider the other evidence against the appellant-accused.

35. As already pointed out, in the Dehati Nalishi, Ex. P.1 which

was lodged within 2 and a half hours of the incident, Smt. Manju Bai

(P.W.1) had specifically stated that after leaving the deceased Nikita

in the company of her husband, She went to the well along with her

two minor children, to fetch water. When She came back, the

appellant-accused was not in the house, and the dead body of Nikita

was lying on the floor in decapitated condition.

36. The appellant-accused in his statement under Section 313 of

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

Cr.P.C. has stated that he had gone towards the river. Therefore, the

question for consideration is that whether the appellant-accused has

succeeded to establish that he had gone towards the river and was not

in the home at the time of murder of Nikita?

37. It is also mentioned in the Dehati Nalishi, Ex. P.1, that when

Phool Singh (P.W.4) went in search of the appellant-accused, then he

found that he was coming back from river side. Smt. Manju Bai

(P.W.1), in her Court evidence, has not stated that when Phool Singh

(P.W.4) went in search of appellant-accused, then he saw that the

appellant-accused was coming from river side. Further, Phool Singh

(P.W.4) has turned hostile, and he has denied the suggestion that

when he went in search of appellant-accused, then he found that he

was coming from river side. Thus, none of the prosecution witness

has stated that the appellant-accused was seen towards the river.

Further, undisputedly, the deceased is a 8 months old girl. If for one

reason or the other, the appellant-accused was of the view that he is

required to go towards the river, then instead of leaving his 8 months

old daughter all alone in the house, he would have taken her along

with him. Therefore, the explanation given by him that he had gone

towards the river is indicative of his guilty mind, as he might have

gone to river, in order to wash himself.

38. Thus, this Court is of the considered opinion, that the

appellant-accused has failed to prove that when and in what manner

he parted away with the company of the deceased.

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

39. Further, vide seizure memo Ex. P.7, a blood stained sickle and

by seizure memo Ex. P.9, blood stained cloths were seized from the

possession of appellant-accused. As per F.S.L. report, Ex. P.15,

human blood was found on Sickle as well as on the cloths of the

appellant-accused. It is true that blood group could not be

ascertained, but it is not the case of the appellant-accused that in fact,

the seized articles contain his blood and not that of the deceased.

40. The Supreme Court in the case of Khujji Vs. State of M.P.

reported in (1991) 3 SCC 627 has held as under :

10. Mr Lalit, however, argued that since the report of the serologist does not determine the blood group of the stains on the weapon and the pant of the appellant, the mere find of human blood on these two articles is of no consequence, whatsoever. In support of this contention he placed strong reliance on the decisions of this Court in Kansa Behera v. State of Orissa and Surinder Singh v. State of Punjab In the first mentioned case the conviction was sought to be sustained on three circumstances, namely, (i) the appellant and the deceased were last seen together; (ii) a dhoti and a shirt recovered from the possession of the appellant were found to be stained with human blood; and (iii) the appellant had made an extra-judicial confession to two witnesses when arrested. There was no dispute in regard to the first circumstance and the third circumstance was held not satisfactorily proved. In this backdrop the question for consideration was whether the first and the second circumstances were sufficient to convict the appellant. This Court, therefore, observed that a few small blood stains could be of the appellant himself and in the absence of evidence regarding blood group it cannot conclusively connect the blood stains with the blood of the deceased. In these circumstances this Court refused to draw any inference of guilt on the basis of the said circumstance since it was not 'conclusive' evidence. This Court, however, did not go so far as to say that such a circumstance does not even provide a link in the chain of circumstances on which the prosecution can place reliance. In the second case also this Court did not consider the evidence regarding the find

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

of human blood on the knife sufficient to convict the appellant in the absence of determination of blood group since the evidence of PW 2 was found to be uninspiring and there was no other circumstance to connect him with the crime. In this case we have the direct testimony of PW 1 Komal Chand, besides the testimony of PWs 3 and 4 which we have considered earlier. The find of human blood on the weapon and the pant of the appellant lends corroboration to the testimony of PW 1 Komal Chand when he states that he had seen the appellant inflicting a knife blow on the deceased. The appellant has not explained the presence of human blood on these two articles. We are, therefore, of the opinion that the aforesaid two decisions turned on the peculiar facts of each case and they do not lay down a general proposition that in the absence of determination of blood group the find of human blood on the weapon or garment of the accused is of no consequence. We, therefore, see no substance in this contention urged by Mr Lalit.

(Underline supplied)

41. The Supreme Court in the case of Rameshbhai Mohanbhai

Koli v. State of Gujarat, reported in (2011) 11 SCC 111 has held as

under :

31. We have already observed that the prosecution has established that FSL report has clearly certified that the blood found on the knife was of human origin. This question fell for consideration in State of Rajasthan v. Teja Ram and this Court held that it would be an incriminating circumstance if the blood on the weapon was found to be of human origin. The same view has been reiterated in Molai v. State of M.P.

42. Thus, it is held that the prosecution has succeeded in

establishing the circumstances of Last Seen Together, seizure of

blood stained sickle and blood stained cloths from the appellant-

accused, and as per serologist, human blood was found on the seized

articles, and the appellant-accused has not discharged his burden in

explaining as to when and in what manner he parted away with the

Kishanlal Vs. State of M.P. (Cr.A. No. 252/2010)

company of his 8 month old daughter. Accordingly, the above

mentioned proved circumstances, lead to only one inference, that it

was the appellant-accused alone who had caused murder of his own 8

months old daughter Nikita.

43. Accordingly, the conviction of the appellant-accused for

offence under Section 302 of I.P.C. is upheld.

44. So far as the question of sentence is concerned, since Life

Imprisonment is the minimum jail sentence, therefore, the sentence of

Life Imprisonment and a fine of Rs. 200/- with default imprisonment

of R.I. for one month, awarded by the Trial Court is also affirmed.

45. Ex Consequenti, the judgment and sentence dated 1-1-2010

passed by Sessions Judge, Guna in S.T. No. 281/2009 is hereby

Affirmed.

46. The appellant is in jail. He shall undergo the remaining jail

sentence. A copy of this judgment be provided to the appellant free

of cost.

47. The appeal fails and is hereby Dismissed.

(G.S. Ahluwalia)                           (Rajeev Kumar Shrivastava)
          Judge                                                Judge

                                ARUN KUMAR MISHRA
                                2021.08.05 16:37:43 +05'30'