Rakesh Kumar Sharma @ Chhotu @ ... vs State Of M.P.
2022 Latest Caselaw 2184 MP

                                    1
          Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)


     HIGH COURT OF MADHYA PRADESH
            GWALIOR BENCH

                      DIVISION BENCH

                      G.S. AHLUWALIA

                                        &

        DEEPAK KUMAR AGARWAL J.J.

                     Cr.A. No. 237 of 2007

     Rakesh Kumar Sharma @ Chhotu @ Lallu

                                        Vs.

              State of M.P.
_______________________________________
Shri Prakhar Dhengula Counsel for the Appellant
Shri A.K. Nirankari, Counsel for the State

Date of Hearing                      : 3-2-2022
Date of Judgment                     : 17th-02-2022
Approved for Reporting               :

                                   Judgment

                           17th - February -2022

Per G.S. Ahluwalia J.

1.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 27-12-2006 passed by

Additional Sessions Judge/Special Judge, Guna in S.T. No. 345 of

2000, thereby convicted and sentenced the appellant for offence

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

under Sections 302/34, 201 and 392 of IPC and awarded Life

Imprisonment and a fine of Rs. 1000/- for offence under Section

302/34 of IPC, 6 years R.I. and fine of Rs. 1000/- for offence under

Section 201 of IPC, and 7 years R.I. and fine of Rs. 1000/- for

offence under Section 392 of IPC. All sentences shall run

concurrently.

2. Before adverting to the facts of the case, this Court would like

to refer to the conduct of the appellant, during this appeal. The

appellant was granted bail by order dated 27-4-2009, but thereafter,

he did not appear before the Registry of this Court and accordingly

on 21-12-2009, warrant of arrest was issued against him. The surety

bonds were also forfeited, but the appellant could not be traced.

Thereafter, on 1-9-2014, a statement was made by the Counsel for the

appellant, that the appellant is no more. But since, no document was

filed to substantiate the death of appellant, therefore, the said

submission was not accepted. Ultimately, the appellant was arrested

on 19-12-2019. Thus, it is clear that he remained absconding for 10

long years, and even an attempt was made to play fraud on the Court

by submitting that the appellant has died. Be that whatever it may be.

3. According to the prosecution case, on 2-5-2000 at about 6:35

P.M., an information was received by Police Control Room, Guna

that one dead body of an unidentified person is lying in the bushes

near Temple situated in village Vilonia. Accordingly, the said

information was recorded in Rojnamchasanha of Police Station Cantt

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

at serial no. 78. The police party went to the spot, and a dead body of

unknown person was recovered in a naked condition, with multiple

injuries and some part of the body was eaten by animals also. Merg

report, Ex. P.10 was written on the spot, and on the basis of said merg

report, Merg Report No. 25/2000, Ex P.11 was registered in Police

Station Cantt., Distt. Guna. The photographs of the dead body were

taken. As it was already dark, therefore, on the next day, blood

stained and plain earth, one bottle of liquor, the hairs of the deceased

were seized. Safina form was issued. Lash Panchnama was prepared.

The dead body was sent for post-mortem. The post-mortem was done

at 11:15 A.M. Viscera was preserved.

4. It is also not out of place to mention here that B.R. Premi,

S.H.O., Police Station Akbarpur, Kanpur Dehat, Kanpur (U.P.) was on

patrolling along with his police party. He received an information

that one factory, situated near village Navipur, is lying closed for the

last several years and in that premises, one truck is parked in a

suspicious condition, and cloths are being unloaded. The police party

immediately went to the spot and found that two persons were on the

truck and two persons were standing on the ground and the bundles

of cloths were being unloaded. After noticing the police party, all the

four persons started running away. When they were chased, gun

shots were also fired on the police party, however, the police

succeeded in apprehending two persons, namely the appellant Rakesh

Kumar and Rajkumar. The truck was bearing registration no. UP 51

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

B 4395. The memorandum of the apprehended persons were

recorded. They informed that two trucks had started from Surat for

Kanpur. On the way, the driver and cleaner of one truck were offered

excessive liquor and thereafter they have been killed. The dead body

of the driver Bhagwandas was thrown in the Cantt. Area of Guna,

whereas the dead body of cleaner Pandit was thrown in Dharnavada

area of Guna. The appellant Rakesh @ Chhotu brought the said truck

i.e., U.P. 51 B 4395 and the goods were being unloaded in the

abandoned factory premises. Accordingly, FIR was lodged in Police

Station Akbarpur, Kanpur Dehat, Kanpur. The appellant and

Rajkumar were arrested and the truck as well as bundles of cloths

were seized.

5. On 4-5-2000, the Sub-Inspector A.K. Singhal formally arrested

the appellant and Rajkumar in Crime No. 178/2000.

6. Radheshyam, the nephew of the driver Bhagwandas, on the

basis of information received from Police Station, Akbarpur, moved

an application on 6-5-2000 for identification of dead body and for

receipt of the same. Accordingly, after taking due permission, the

dead body of the unknown person was taken out from the grave, and

it was identified by Radheshyam and Vijay Pratap Singh. The

identification memo was prepared, and the dead body was handed

over to Radheshyam for cremation purposes. On 11-5-2000, the

investigating officer collected blood from the truck no. UP 51 B 4395

which was parked in the premises of Police Station Akbarpur. The

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

memorandum of the appellant Rakesh was recorded and on the basis

of disclosure made by him, blood stained cloths of the deceased were

recovered from Amola Ghati. The memorandum of the co-accused

Rajkumar was also recorded and on his disclosure some stones were

recovered. The seized articles were sent to F.S.L.,Gwalior. The

police after completing the investigation, filed the charge sheet

against the appellant Rakesh Kumar and co-accused Rajkumar for

offence under Sections 302,201,392 and 397 of IPC.

7. The Trial Court by order dated 24-5-2002, framed charges

under Sections 302 or in the alternative under Section 302/34 of IPC,

201, 392,397 of IPC.

8. The appellant and co-accused Rajkumar abjured their guilt and

pleaded not guilty.

9. The prosecution examined Narendra Pratap Singh (P.W.1),

Motilal (P.W.2), Dev Singh (P.W.3), Amrat Lal (P.W.4), Kallu (P.W.5),

Vijay Pratap Singh (P.W.6), Gurucharan Lal Sehgal (P.W.7),

Shrinarayan Awasthi (P.W.8), Bhanu Pratap Singh Tomar (P.W.9),

Balram (P.W.10), Anil Shrivastava (P.W.11), Shriram (P.W.12),

Ramlal Mehta (P.W. 13), Ravinder Singh (P.W.14), Dr. P.K. Sharma

(P.W. 15), B.R. Premi (P.W. 16), Vinod Kumar Khanna (P.W.17),

Santosh Khare (P.W. 18), Angad Singh (P.W.19), Radheshyam

(P.W.20), Kanhaiyalal (P.W.21) and Dashrath Singh (P.W.22).

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

11. It is not out of place to mention here that the co-accused

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

Rajkumar expired during the pendency of the Trial.

12. The Trial Court by the impugned judgment and sentence,

convicted and sentenced the appellant for the above mentioned

offences.

13. Challenging the impugned judgment, it is submitted by the

Counsel for the appellant, that the case is based on circumstantial

evidence, and the prosecution has failed to prove the chain of

circumstances. There is nothing on record to suggest that cloths

seized from Amola Ghati were that of the deceased Bhagwandas.

Vijay Pratap Singh (P.W.6) has stated that on 2-5-2000, he had

received an information that the driver Bhagwandas has been killed

and the truck has been taken away. Thus, it is clear that the

prosecution was already aware of the name of the deceased, therefore,

it is incorrect to suggest that the dead body was identified only after

the appellant was arrested in Kanpur on 3-5-2000. It is further

submitted that any fact other than discovery is not admissible in the

light of Section 25 and 26 of Evidence Act.

14. Per contra, the Counsel for the State has supported the findings

recorded by the Trial Court.

15. Heard the learned Counsel for the parties.

16. Before adverting to the facts of the case, this Court would like

to find out as to whether the deceased Bhagwandas died a homicidal

death or not?

17. The post-mortem of the unknown dead body, who was

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

subsequently identified as Bhagwandas, was conducted by Dr. P.K.

Sharma (P.W.15) and found the following injuries :

Face features are distorted. Body in state of decomposition. Foul smell all over the body. Maggots are present crawling all over the body - Time since death within 5 days. Penis not circumcised indicate Hindu Skin and soft tissue on face from frontal hair line to mandible one ear to another ear is absent exposing bones. Height 163 cms Maxilla bones are missing. Mandible some teeth (details shown in Post-mortem report) not present. Skin is missing. Left side of chest left upper part of abdomen front of neck skin showing nibbling effect indicate tkuojksa us [kk;k gSA Following injures are seen :

(i) Stab Wound - on front of right chest region on mid Clavicular line 11 cm below clavicle 4 x 2 cm deep upto chest cavity.

(ii) Incised wound - Right side of chest ant-axillary line 5 cm right to injury no.1 5 cm x 1/12 cm muscle deep.

(iii) Stab wound - site right side deltoid region - 7 cm below to the tip of shoulder size 2.5x.5cm 5 cm muscle deep.

(iv) Incised wound - right arm antro-laterl-aspect size 4 x 2 cm wound is entering into muscle coming out from ant. Medial aspect by making exit wound 12 x .5 cm tran 5 cm

(v) Incised wound - on back left shoulder size 2.5 x .5 cm depth 1 cm

(vi) Incised wound - on back left shoulder size 2.5 x .5 depth 1 cm - 2 cm below injury no. 5.

(vii) Incised wound - 2 cm below injury no. 6 3 x 1 x deep 1 cm

(viii) stab wound - back of right shoulder 5 cm below shoulder size 4.5 x 5 cm wound entry chest cavity coming out 2 ICS and 3rd ICS piercing right lung.

All injuries are ante-mortem in nature blood clots are present.

The mode of death of unidentified Hindu male is shock due to multiple Ante-mortem wound over the body causing hemorrhage. Injuries caused by sharp and penetrating object.

Time since death within 5 days.

18. The post-mortem report is Ex. P.24. This witness was cross-

examined.

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

In cross-examination, this witness stated that the time since

death was assessed by him on the basis of decomposition of the dead

body.

19. Thus, it is clear that the death of unidentified dead body, which

was subsequently identified as that of Bhagwandas was homicidal in

nature.

20. The next question for consideration is that whether the

prosecution has established the guilt of the appellant, beyond

reasonable doubt or not?

21. The case is based on circumstantial evidence. The

Circumstances can be summarized as under :

(i) The deceased Bhagwandas had informed the owner that the

truck has been loaded and would start for Kanpur on 29-4-2000 along

with Cleaner;

(ii) On 2-5-2000, the dead body of one unidentified person was

found in the Cantt. Area of Distt. Guna.

(iii) On 3-5-2000, on the information received from an informer,

the police of Police Station Akbarpur, Kanpur Dehat, raided an

abandoned factory and found that truck No. UP 51 B 4395 was

parked inside the factory premises and four persons were unloading

the bundles of cloths.

(iv) After noticing the police party, all the four persons tried to run

away and also fired gun shots, but two persons were apprehended i.e.,

the appellant and co-accused Rajkumar.

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

(v) The appellant made a confessional statement, that two trucks

had started from Surat, and they have killed the driver and owner of

the second truck and have thrown their dead bodies in Distt. Guna

and looted the truck bearing registration No. UP 51 B 4395.

(vi) The appellant was formally arrested by Madhya Pradesh Police

on 4-5-2000 in Police Station Akbarpur, Distt. Kanpur.

(vii) On 6-5-2000, Radheshyam (P.W. 20) made an application for

identification and handing over of the dead body.

(viii) The dead body of unidentified person was dug out of the earth

and it was identified by Radheshyam (P.W.20) and Vijay Pratap Singh

(P.W.6) to be that of Bhagwandas.

(ix) On the memorandum of the appellant, blood stained cloths

were seized from Amola Ghati.

(x) Blood was recovered from the seat of truck bearing no. UP 51

B 4395.

(xi) As per F.S.L. report, human blood was found on the cloths

seized on the disclosure by the appellant as well as blood lifted from

truck bearing registration No. UP 51 B 4395.

(x) Blood group "O" was found Pant, as well as Seat Covers i.e.,

E2 and E3 which were lifted from the truck bearing registration No.

UP 51 B 4395.

(xi) Blood group "B" was found on two seat covers of truck no. UP

51 B 4395.

(x) Conduct of the Appellant.

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

22. Before considering the circumstances alleged against the

appellant, this Court would like to consider the law governing field of

circumstantial evidence.

23. The Supreme Court in the case of Sharad Birdhichand Sarda

v. State of Maharashtra, reported in (1984) 4 SCC 116 has held as

under :

153. 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 Sahabrao Bobade v. State of Maharashtra where the observations were made: [SCC para 19, p. 807: SCC (Cri) p. 1047] "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 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.

24. The Supreme Court in the case of Pudhu Raja v. State

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

reported in (2012) 11 SCC 196 has held as under :

15. In a case of circumstantial evidence, the prosecution must establish each instance of incriminating circumstance by way of reliable and clinching evidence, and the circumstances so proved, must form a complete chain of events, on the basis of which, no conclusion other than one of guilt of the accused can be reached. Undoubtedly, suspicion, however grave it may be, can never be treated as a substitute for proof. While dealing with a case of circumstantial evidence, the court must take utmost precaution whilst finding an accused guilty solely on the basis of the circumstances proved before it.

25. The Supreme Court in the case of Ram Singh v. Sonia,

reported in (2007) 3 SCC 1 has held as under :

39. The principle for basing a conviction on the basis of circumstantial evidence has been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion about the guilt of the accused can be safely drawn and no other hypothesis against the guilt is possible. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to make the place of legal proof, for sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions.

26. The Supreme Court in the case of Inspector of Police v. John

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

David, reported in (2011) 5 SCC 509 has held as under :

Case on circumstantial evidence

33. The principle for basing a conviction on the edifice of circumstantial evidence has also been indicated in a number of decisions of this Court and the law is well settled that each and every incriminating circumstance must be clearly established by reliable and clinching evidence and the circumstances so proved must form a chain of events from which the only irresistible conclusion that could be drawn is the guilt of the accused and that no other hypothesis against the guilt is possible.

34. This Court has clearly sounded a note of caution that in a case depending largely upon circumstantial evidence, there is always a danger that conjecture or suspicion may take the place of legal proof. The court must satisfy itself that various circumstances in the chain of events have been established clearly and such completed chain of events must be such as to rule out a reasonable likelihood of the innocence of the accused. It has also been indicated that when the important link goes, the chain of circumstances gets snapped and the other circumstances cannot in any manner, establish the guilt of the accused beyond all reasonable doubts. It has been held that the court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof. It has been indicated by this Court that there is a long mental distance between "may be true" and "must be true" and the same divides conjectures from sure conclusions.

35. This Court in State of U.P. v. Ram Balak had dealt with the whole law relating to circumstantial evidence in the following terms: (SCC pp. 555-57, para 11) "11. '9. It has been consistently laid down by this Court that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person. (See Hukam Singh v. State of Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v. State of Karnataka, State of U.P. v. Sukhbasi, Balwinder Singh v. State of Punjab and Ashok Kumar Chatterjee v. State of M.P.) The circumstances from which an inference as to the guilt of the accused is drawn have to be proved beyond reasonable doubt and have to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

Bhagat Ram v. State of Punjab it was laid down that where the case depends upon the conclusion drawn from circumstances the cumulative effect of the circumstances must be such as to negative the innocence of the accused and [bring home the offences] beyond any reasonable doubt.

10. We may also make a reference to a decision of this Court in C. Chenga Reddy v. State of A.P. wherein it has been observed thus: (SCC pp. 206-07, para 21) "21. In a case based on circumstantial evidence, the 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 complete 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 and totally inconsistent with his innocence."

11. In Padala Veera Reddy v. State of A.P. it was laid down that when a case rests upon circumstantial evidence, such evidence must satisfy the following tests: (SCC pp. 710-11, para 10) "(1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established;

(2) those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused;

(3) 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 (4) 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."

* * *

16. A reference may be made to a later decision in Sharad Birdhichand Sarda v. State of Maharashtra. Therein, while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity of lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent in the words of this

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

Court, before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

(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 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.' These aspects were highlighted in State of Rajasthan v. Raja Ram, at SCC pp. 187-90, paras 9-16 and State of Haryana v. Jagbir Singh."

27. Thus, it is clear that the prosecution must prove that the chain

of circumstances is complete leaving no other option except that it

was the accused and accused only who has committed the offence.

The deceased Bhagwandas had informed the owner that the truck

has been loaded and would start for Kanpur on 29-4-2000 along

with Cleaner

28. The Deceased Bhagwandas was the driver of Truck bearing

registration No. UP 51 B 4395 and Vijay Pratap Singh (P.W.6) is the

father of Rohit and brother of Jayendra Pratap Singh, who are the

owners of Truck No. UP 51 B 4395. He has stated that on 28-4-2000

at about 9 P.M., the driver Bhagwandas informed him from Surat that

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

the goods have been loaded and he would start for Kanpur on the

next morning. This witness was not cross-examined at all. Thus, the

circumstance that Bhagwandas was the driver of Truck No. UP 51 B

4395 and had informed Vijay Pratap Singh (P.W.6) on 28-4-2000 at 9

P.M., that the goods have been loaded and he would start for Kanpur

on the next morning, is held to be proved.

On 2-5-2000, the dead body of one unidentified person was found

in the Cantt. Area of Distt. Guna.

29. Bhanu Pratap Singh Tomar (P.W. 9) was posted as S.H.O.,

Police Station Cantt. He received an information on 2-5-2000 from

Police Control Room, Guna, that the dead body of an unknown

person is lying on A.B. Road near Bilonia village. This information

was recorded in Rojnamchasanha No. 48. This witness went to spot

and found the dead body of a male, which was in putrefied condition

with multiple injuries on it. Foul smell was coming from the dead

body. Accordingly, merg information was recorded at 0 on the spot,

Ex. P.10 and on the basis of which, merg enquiry, no. 25/2000 was

registered,, Ex. P. 11. The F.I.R., Ex. P11 was registered. Safina

form, Ex. P.6 was issued and Lash Panchnama, Ex. P.7 was prepared.

30. Thus, it is clear that the dead body of one unidentified person

was found on 2-5-2000 at 16:35 which is evident from Merg

information, Ex. P.11 and Merg enquiry was registered at 19:10.

On 3-5-2000, on the information received from an informer, the

police of Police Station Akbarpur, Kanpur Dehat, raided an

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

abandoned factory and found that truck No. UP 51 B 4395 was

parked inside the factory premises and four persons were

unloading the bundles of cloths.

And

After noticing the police party, all the four persons tried to run

away and also fired gun shots, but two persons were

apprehended i.e., the appellant and co-accused Rajkumar.

31. B.R. Premi (P.W. 16) has stated that he was posted as S.H.O.,

Police Station Akbarpur. He received an information that Katiyar

factory, situated Jainpur is lying closed for the last several days and

in that premises, one truck is being unloaded which appears to be

suspicious. The police party immediately went to the spot and found

that one truck was parked inside the factory premises and two

persons were on the truck and two persons were standing on the

ground and the bundles of cloths were being unloaded. After

noticing the police party, there was helter skelter and gun shots were

also fired on the police party, however, the police succeeded in

apprehending two persons, who disclosed their names as appellant

Rakesh Kumar and Rajkumar. One country made pistol and 2 live

cartridges were seized from each of the accused and they were not

having any license to possess them. The memorandum of the

apprehended persons were recorded. The appellant Chhotu informed

that Kallu Yadav and Rafiq had also gone with them from Kanpur to

Surat. Both trucks were loaded with cloths and were coming back.

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

Near Guna they consumed liquor. The driver and cleaner of another

truck namely Habib and Pandit had consumed excessive liquor,

therefore, he started driving that truck, whereas Rajkumar was

driving another truck. Near Guna they killed the Driver Habib and

Cleaner Pandit and threw their bodies. Kallu and Rafiq had also

assisted them. One truck was left at Kanpur by Rajkumar and

another truck was brought to the factory with an intention to sell the

cloth. The truck no. UP 51 B 4395 and bundles of cloths were seized

and the registration of another truck was U.P. 78 B 9494. Thereafter,

he came to know that in respect of truck, offences were registered in

Cantt and Dharnavada Police Station, Guna and thereafter, the M.P.

Police seized the same. The bundles of cloths were handed over on

supurdagi, but the samples were kept. The copy of F.I.R. registered

on 3-5-2000 at Police Station Akbarpur is Ex. P.9. This witness was

cross-examined.

In cross-examination, stated that he did not take independent

witnesses to the factory premises and no separate seizure memo or

arrest memo were prepared. He denied that false case was prepared

in the Police Station.

32. Thus, it is proved that the appellant and co-accused Rajkumar

were apprehended in an abandoned Factory premises and they were

unloading the goods from truck No. UP 51 B 4395.

The appellant made a confessional statement, that two trucks had

started from Surat, and they have killed the driver and owner of

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

the second truck and have thrown their dead bodies in Distt.

Guna and looted the truck bearing registration No. UP 51 B 4395.

33. For the reasons mentioned above, it is held that the appellant

Rakesh Kumar @ Chhotu @ Lallu also made a confessional

statement that after killing the driver and cleaner of truck No. UP 51B

4395, their dead bodies have been thrown.

The appellant was formally arrested on 4-5-2000 in Police Station

Akbarpur, Distt. Kanpur.

34. On 6-2-2004, the appellant Rakesh Kumar admitted his arrest,

accordingly, his arrest memo was marked as Ex. P.20, according to

which he was arrested on 4-5-2000 by H. Constable Radheshyam and

Constable Vinod Tiwari of Kotwali Police Station, Guna. Thus, it is

proved that the appellant Rakesh Kumar Sharma was formally

arrested in Police Station Akbarpur, Kanpur Dehat, Kanpur on 4-5-

2000.

On 6-5-2000, Radheshyam (P.W. 20) made an application for

identification and handing over of the dead body.

And

The dead body of unidentified person was dug out of the earth

and it was identified by Radheshyam (P.W.20) and Vijay Pratap

Singh (P.W.6) to be that of Bhagwandas.

35. Bhanu Pratap Singh Tomar (P.W.9) has stated that on 6-5-2000,

Radheshyam, resident of village Mudakiha had made a written

application, Ex. P.12 for identification of dead body of his uncle, and

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

accordingly, he had directed H.C.M. to dig out the dead body.

36. Radheshyam Choudhary (P.W. 20) has stated that on the

information given by Police Station Akbarpur about the murder of his

uncle Bhagwandas Choudhary, he came to Guna and identified the

dead body of Bhagwandas, vide identification memo Ex. P.9. The

dead body was received by him and the receipt is Ex.P.29. His uncle

Bhagwandas was a driver of a truck. This witness was not cross-

examined at all. Thus, the identification of dead body of

Bhagwandas remained unchallenged.

37. Vijay Pratap Singh (P.W.6) has also identified the dead body of

his driver Bhagwandas. This witness was not cross-examined at all.

Thus, the identification of dead body of Bhagwandas by this witness

also remained unchallenged.

38. Thus, it is held that the dead body which was recovered on 2-5-

2000 was that of Bhagwandas.

On the memorandum of the appellant, blood stained cloths were

seized from Amola Ghati.

39. Motilal (P.W.2) is the seizure witness, who has stated that on

the disclosure made by the appellant, One Darrie (Cotton Carpet),

Gulband, underwear and quilt were seized from Amola Valley. The

articles were lying in scattered condition. The seizure memo is Ex.

P.4.

40. Challenging the evidence of this witness, it is submitted that

this witness has stated that Raju had disclosed the place where the

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

articles were lying. Thus, it is clear that the articles were recovered

on the disclosure made by the co-accused Raju.

41. Considered the submission made by the Counsel for the

appellant.

42. Motilal (P.W.2) in para 1 of his examination-in-chief had stated

that the name of the appellant is Raju. Thus, there was some

confusion in the mind of Motilal (P.W. 2) with regard to the name of

appellant. Therefore, his evidence that Raju had disclosed the

articles has to be considered in the light of para 1 of his examination-

in-chief, and the defence has also not confronted him by pointing out

that the appellant is not Raju. Thus, it is held that in fact the cloths

were recovered on the disclosure made by the appellant.

43. Dev Singh (P.W 3) is the another witness of seizure who did

not support the prosecution case.

44. Bhanupratap Singh Tomar (P.W.9) is the investigating officer,

who had recorded the memorandum of the appellant, Ex. P.2. On the

basis of disclosure made by appellant, one blood stained Darrie, one

pant of pink colour which was stained with blood, one torn pant

stained with diesel and blood, one blue colour Muffler stained with

diesel and blood were seized vide seizure memo Ex. P.4.

45. It is submitted by the Counsel for the appellant, that since,

Bhanu Pratap Singh Tomar (P.W. 9) is a police personal, therefore, his

evidence with regard to disclosure made by appellant should not be

believed.

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

46. Considered the submissions made by the Counsel for the

appellant.

47. It is well established principle of law that the evidence of a

witness cannot be discarded merely on the ground that he is a police

personal.

48. The Supreme Court in the case of Baldev Singh Vs. State of

Haryana reported in (2015) 17 SCC 554 has held as under :

10. There is no legal proposition that evidence of police officials unless supported by independent evidence is unworthy of acceptance. Evidence of police witnesses cannot be discarded merely on the ground that they belong to police force and interested in the investigation and their desire to see the success of the case. Prudence however requires that the evidence of police officials who are interested in the outcome of the result of the case needs to be carefully scrutinised and independently appreciated. Mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness.

11. Observing that no infirmity is attached to the testimony of police officials merely because they belong to police force and that conviction can be based on the testimony of police officials in Girja Prasad v. State of M.P., it was held as under: (SCC pp. 632-33, paras 25-27) "25. In our judgment, the above proposition does not lay down correct law on the point. It is well settled that credibility of witness has to be tested on the touchstone of truthfulness and trustworthiness. It is quite possible that in a given case, a court of law may not base conviction solely on the evidence of the complainant or a police official but it is not the law that police witnesses should not be relied upon and their evidence cannot be accepted unless it is corroborated in material particulars by other independent evidence. The presumption that every person acts honestly applies as much in favour of a police official as any other person. No infirmity attaches to the testimony of police officials merely because they belong to police force. There is no rule of law which lays down that no conviction can be recorded on the testimony of police officials even if

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

such evidence is otherwise reliable and trustworthy. The rule of prudence may require more careful scrutiny of their evidence. But, if the court is convinced that what was stated by a witness has a ring of truth, conviction can be based on such evidence.

26. It is not necessary to refer to various decisions on the point. We may, however, state that before more than half-a-century, in Aher Raja Khima v. State of Saurashtra, Venkatarama Ayyar, J. stated: (AIR p. 230, para 40) '40. ... The presumption that a person acts honestly applies as much in favour of a police officer as of other persons, and it is not judicial approach to distrust and suspect him without good grounds therefor. Such an attitude could do neither credit to the magistracy nor good to the public. It can only run down the prestige of the police administration.'

27. In Tahir v. State (Delhi), dealing with a similar question, Dr A.S. Anand, J. (as His Lordship then was) stated: (SCC p. 341, para 6) '6. ... Where the evidence of the police officials, after careful scrutiny, inspires confidence and is found to be trustworthy and reliable, it can form basis of conviction and the absence of some independent witness of the locality to lend corroboration to their evidence, does not in any way affect the creditworthiness of the prosecution case.'"

(emphasis in original)

49. It is next contended by the Counsel for the appellant that even

if it is found that the blood stained cloths were recovered from Amola

Valley, but as they were seized from an open space, therefore, it is

clear that the appellant was not in exclusive possession and

knowledge of the same.

50. Considered the submissions made by the Counsel for the

appellant.

51. It is not the case of the appellant, that the cloths were

recovered from the Amola Valley (Ghati), which was accessible to

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

general public. How the appellant had knowledge about the fact that

the cloths are lying at a particular place in Amola Ghati ? Since, the

blood stained cloths were seized on the disclosure made by the

appellant, therefore, it is held that on the disclosure made by the

appellant, blood stained cloths, Darrie were seized from Amola

Valley (Ghati). The Supreme Court in the case of Anter Singh Vs.

State of Rajasthan reported in (2004) 10 SCC 657 has held as

under:

15. At one time it was held that the expression "fact discovered" in the section is restricted to a physical or material fact which can be perceived by the senses, and that it does not include a mental fact, now it is fairly settled that the expression "fact discovered" includes not only the physical object produced, but also the place from which it is produced and the knowledge of the accused as to this, as noted in Pulukuri Kottaya case and in Udai Bhan v. State of U.P.

16. The various requirements of the section can be summed up as follows:

(1) The fact of which evidence is sought to be given must be relevant to the issue. It must be borne in mind that the provision has nothing to do with the question of relevancy. The relevancy of the fact discovered must be established according to the prescriptions relating to relevancy of other evidence connecting it with the crime in order to make the fact discovered admissible.

(2) The fact must have been discovered.

(3) The discovery must have been in consequence of some information received from the accused and not by the accused's own act.

(4) The person giving the information must be accused of any offence.

(5) He must be in the custody of a police officer. (6) The discovery of a fact in consequence of information received from an accused in custody must be deposed to.

(7) Thereupon only that portion of the information

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

which relates distinctly or strictly to the fact discovered can be proved. The rest is inadmissible.

17. As observed in Pulukuri Kottaya case it can seldom happen that information leading to the discovery of a fact forms the foundation of the prosecution case. It is one link in the chain of proof and the other links must be forged in a manner allowed by law. To similar effect was the view expressed in K. Chinnaswamy Reddy v. State of A.P.

52. The Supreme Court in the case of Yakub Abdul Razak

Memon v. State of Maharashtra, reported in (2013) 13 SCC 1 has

held as under :

1706. In State of H.P. v. Jeet Singh this Court dealt with the issue of recovery from the public place and held: (SCC p. 377, para 21) "21. The conduct of the accused has some relevance in the analysis of the whole circumstances against him. PW 3 Santosh Singh, a member of the Panchayat hailing from the same ward, said in his evidence that he reached Jeet Singh's house at 6.15 a.m. on hearing the news of that tragedy and then accused Jeet Singh told him that Sudarshana complained of pain in the liver during the early morning hours. But when the accused was questioned by the trial court under Section 313 of the Code of Criminal Procedure, he denied having said so to PW 3 and further said, for the first time, that he and Sudarshana did not sleep in the same room but they slept in two different rooms. Such a conduct on the part of the accused was taken into account by the Sessions Court in evaluating the incriminating circumstance spoken to by PW 10 that they were in the same room on the fateful night. We too give accord to the aforesaid approach made by the trial court."

1707. Similarly, in State of Maharashtra v. Bharat Fakira Dhiwar, this Court held: (SCC p. 629, para 22) "22. In the present case the grinding stone was found in tall grass. The pants and underwear were buried. They were out of visibility of others in normal circumstances. Until they were disinterred, at the instance of the respondent, their hidden state had remained unhampered. The respondent alone knew where they were until he disclosed it. Thus we see no substance in this submission also."

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

1708. In view of the above, it cannot be accepted that a recovery made from an open space or a public place which was accessible to everyone, should not be taken into consideration for any reason. The reasoning behind it, is that, it will be the accused alone who will be having knowledge of the place, where a thing is hidden. The other persons who had access to the place would not be aware of the fact that an accused, after the commission of an offence, had concealed contraband material beneath the earth, or in the garbage.

1709. In Durga Prasad Gupta v. State of Rajasthan, this Court explained the meaning of possession as: (SCC p. 266, paras 26 & 27) "26. The word 'possession' means the legal right to possession (see Heath v. Drown). In an interesting case it was observed that where a person keeps his firearm in his mother's flat which is safer than his own home, he must be considered to be in possession of the same. (See Sullivan v. Earl of Caithness.)

27. Once possession is established, the person who claims that it was not a conscious possession has to establish it, because how he came to be in possession is within his special knowledge."

53. It is next contended by the Counsel for the appellant, that there

is nothing on record to suggest that the cloths seized at the instance

of the appellant were that of deceased Bhagwandas.

54. Considered the submissions made by Shri Prakhar.

55. It is true that the prosecution has not got the cloths seized from

Amola Ghati identified, but the important aspect of the matter is that

how the appellant was aware of the fact that blood stained cloths are

lying in Amola Ghati. Further, the conduct of the appellant is also

relevant under Section 8 of Evidence Act. The Supreme Court in the

case of State (NCT of Delhi) vs. Navjot Sandhu reported in (2005)

11 SCC 600 has held as under :

205. Before proceeding further, we may advert to Section 8

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

of the Evidence Act. Section 8 insofar as it is relevant for our purpose makes the conduct of an accused person relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. It could be either a previous or subsequent conduct. There are two Explanations to the section, which explain the ambit of the word "conduct". They are:

"Explanation 1.--The word 'conduct' in this section does not include statements, unless those statements accompany and explain acts other than statements, but this explanation is not to affect the relevancy of statements under any other section of this Act. Explanation 2.--When the conduct of any person is relevant, any statement made to him or in his presence and hearing, which affects such conduct, is relevant." The conduct, in order to be admissible, must be such that it has close nexus with a fact in issue or relevant fact. Explanation 1 makes it clear that the mere statements as distinguished from acts do not constitute "conduct" unless those statements "accompany and explain acts other than statements". Such statements accompanying the acts are considered to be evidence of res gestae. Two illustrations appended to Section 8 deserve special mention: "(f) The question is, whether A robbed B.

The facts that, after B was robbed, C said in A's presence -- 'the police are coming to look for the man who robbed B', and that immediately afterwards A ran away, are relevant.

                      *      *      *
   (i) A is accused of a crime.

The facts that, after the commission of the alleged crime, he absconded, or was in possession of property or the proceeds of property acquired by the crime, or attempted to conceal things which were or might have been used in committing it, are relevant."

206. We have already noticed the distinction highlighted in Prakash Chand case between the conduct of an accused which is admissible under Section 8 and the statement made to a police officer in the course of an investigation which is hit by Section 162 CrPC. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place where stolen articles or weapons used in the commission of the offence were hidden, would be admissible as "conduct" under Section 8 irrespective of the fact whether the statement made by the accused contemporaneously with or antecedent to such conduct,

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

falls within the purview of Section 27, as pointed out in Prakash Chand case. In Om Prakash case this Court held that: (SCC p. 262, para 14) "[E]ven apart from the admissibility of the information under Section 27, the evidence of the investigating officer and the panchas that the accused had taken them to PW 11 (from whom he purchased the weapon) and pointed him out and as corroborated by PW 11 himself would be admissible under Section 8 of the Evidence Act as conduct of the accused."

56. Thus, it is clear that the conduct of the appellant in disclosing

that he had thrown the cloths of the deceased as well as Darrie etc in

the Amola Ghati is relevant and admissible. Thus, it is held that the

blood stained cloths of the deceased Bhagwandas were seized from

Amola Ghati at the instance of the appellant.

Blood was recovered from the seat of truck bearing no. UP 51 B

4395.

57. Bhanu Pratap Singh Tomar (P.W.9) has stated that on 11-5-

2000, he had seized the truck bearing registration no. UP 51 B 4395

and blood was collected from the cleaner side seat of the truck, under

the cleaner seat, angle on the cleaner side as well as on the cleaner

seat vide seizure memo Ex. P.14. In cross-examination, no question

was put to this witness with regard to seizure of blood from the truck.

Thus, the recovery of blood from the cleaner side of the truck no. UP

51 B 4395 remained unchallenged. Thus, it is held that from the

cleaner side of the truck No. UP 51 B 4395, blood was recovered

which was seized vide seizure memo Ex. P.14.

As per F.S.L. report, Human blood was found on the cloths as

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

well as blood lifted from truck bearing registration No. UP 51 B

4395.

58. As per F.S.L. report, Ex. P.18 Darrie (Cotton carpet) was

marked as Article A1, Pant was marked as A2, Pant was marked as

A3, Muffler was marked as A4, Seat Cover was marked as E1, Seat

Cover marked as E2, Seat Cover marked as E3, Cotton was marked

as F, piece of foam was marked as G, and Cotton was marked as H,

and human blood was found on all these articles. Thus, it is held that

the blood stained cloths which were recovered at the instance of the

appellant and the cleaner side of the truck no. UP 51 B 4385 found to

be stained with Human Blood.

Blood group "O" was found Pant, as well as Seat Covers i.e., E2

and E3 which were lifted from the truck bearing registration No.

UP 51 B4395.

59. As per F.S.L. report, Ex. 19, Human blood of "O" group was

found on Pant, one Seat Cover and piece of foam. The F.S.L. report,

Ex. P.18 and P.19 were not challenged by the appellant. Thus, it is

held that Pant seized at the instance of the appellant from Amola

Ghati and seat cover of the truck no. UP 51 B 4395 as well as a piece

of foam recovered from the truck no. UP 51 B 4395 were having

human blood of "O" group.

Blood group "B" was found on two seat covers of truck no. UP 51

B 4395.

60. As per F.S.L. report, Ex. P.19, Human Blood of "B" group was

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

found on two seat covers of cleaner side of the truck. Thus, it is clear

that the blood of one more person was found on the seat cover of the

cleaner side of the truck no. UP 51 B 4395 and it is the prosecution

case that the Driver and Cleaner of the truck no. UP 51 B 4395 were

murdered.

Conduct of the Appellant.

61. In the present case, on 3-5-2000, the S.H.O., Police Station

Akbarpur, Kanpur Dehat, Distt. Kanpur, received an information that

a truck is parked in a suspicious circumstances in a closed factory.

When the premises was raided, four persons were found unloading

bundles of cloths from Truck No. UP 51 B 4395. Two persons

succeeded in running away, whereas two persons were arrested. Even

gun shots were fired at the police party. The appellant Rakesh Kumar

and another co-accused Raju were arrested. The appellant Rakesh

Kumar made a confessional statement, that they have killed the driver

and cleaner of the Truck No. UP 51 B 4395 in Guna District and the

dead bodies of Driver and Cleaner have been thrown at two different

places, i.e., the dead body of cleaner was thrown near Vijaypur

whereas the dead body of driver Bhagwandas was thrown 3-4 Km.s

prior to Guna and he drove the truck no. UP 51 B 4395 to Kanpur.

Thus, the appellant was found in possession of truck No. UP 51 B

4395, whereas according to Vijay Pratap Singh (P.W.6), Bhagwandas

was the driver of the truck No. UP 51 B 4395.

62. On the disclosure made by the appellant, blood stained cloths

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

were seized from Amola Ghati and Human blood "O" was found on

the pant as well as the seat cover of cleaner side seat of the truck as

well as a piece of foam also recovered from the truck No. UP 51 B

4395.

63. Prior to that on 2-5-2000, the dead body of one unknown

person was recovered by Police Station Cantt., Guna and on the

application filed by Radheshyam (P.W.20), the said dead body was

dug out of the earth and it was identified by Radheshyam (P.W.20)

and Vijay Pratap Singh (P.W.6).

64. In the light of Section 8 of Evidence Act, as well as in the light

of Judgment passed by Supreme Court in the case of Navjot Sandhu

(Supra), the conduct of the appellant is admissible.

Whether Vijay Pratap Singh (P.W.6) had got the information of

death of Bhagwandas on 2-5-2000

65. By referring to the evidence of Vijay Pratap Singh (P.W.6), it is

submitted that since, this witness had already received the

information regarding murder of Bhagwandas on 2-5-2000 itself,

therefore, it is clear that the identification of the dead body of

Bhagwandas on the information given by the appellant is false.

66. Considered the submissions made by the Counsel for the

appellant.

67. According to the prosecution case, the Police Control Room,

Guna received the information about dead body of an unidentified

person on 2-5-2000 at 6:35 P.M. Thus, when the information

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

regarding dead body of an unknown person was received at 6:35

P.M., and thereafter, it was recovered, then the question of receiving

information regarding murder of Bhagwandas on 2-5-2000 by Vijay

Pratap Singh (P.W.6) is not possible. Further more, it is well

established principle of law that the Court, while appreciating the

evidence, has to consider the evidence as a whole and the trustworthy

evidence should not be discarded on the basis of one or two lines in

the evidence of a witness.

68. The Supreme Court in the case of Ashok Kumar v. State of

Haryana, reported in (2010) 12 SCC 350 has held as under :

42. This Court has to keep in mind the fact that the incident had occurred on 16-5-1988 while the witnesses were examined after some time. Thus, it may not be possible for the witnesses to make statements which would be absolute reproduction of their earlier statement or line to line or minute to minute correct reproduction of the occurrence/events. The Court has to adopt a reasonable and practicable approach and it is only the material or serious contradictions/variations which can be of some consequence to create a dent in the case of the prosecution. Another aspect is that the statements of the witnesses have to be read in their entirety to examine their truthfulness and the veracity or otherwise. It will neither be just nor fair to pick up just a line from the entire statement and appreciate that evidence out of context and without reference to the preceding lines and lines appearing after that particular sentence. It is always better and in the interest of both the parties that the statements of the witnesses are appreciated and dealt with by the Court upon their cumulative reading.

69. The Supreme Court in the case of Shyamal Ghosh v. State of

W.B., reported in (2012) 7 SCC 646 has held as under :

69. Another settled rule of appreciation of evidence as already indicated is that the court should not draw any conclusion by picking up an isolated portion from the testimony of a witness without adverting to the statement as

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

a whole. Sometimes it may be feasible that admission of a fact or circumstance by the witness is only to clarify his statement or what has been placed on record. Where it is a genuine attempt on the part of a witness to bring correct facts by clarification on record, such statement must be seen in a different light to a situation where the contradiction is of such a nature that it impairs his evidence in its entirety.

Conclusion

70. After considering the totality of the facts and circumstances of

the case, this Court is of the considered opinion, that the prosecution

has succeeded in establishing the allegation that deceased

Bhagwandas, driver of truck No. UP 51 B 4395 was killed by the

appellant and co-accused persons including Raju @ Rajkumar (died

during the pendency of the Trial) and his dead body was thrown and

blood stained cloths were thrown in Amola Ghati and robbed the

Loaded Truck No. UP 51 B 4395 which was brought by the appellant

to Kanpur, where they were unloading the bundles of the Cloths with

an intention to sell them. Thus, the guilt of the appellant for offence

under Section 302/34, 392, 201 of IPC is proved against the appellant

beyond reasonable doubt.

71. So far as the question of sentence is concerned, the minimum

sentence for offence under Section 302 of IPC is Life Imprisonment.

Therefore, the sentence awarded by the Trial Court, doesnot call for

any interference.

72. Ex-consequenti, the Judgment and sentence dated 27-12-2006

passed by Additional Sessions Judge, Guna in S.T. No. 345 of 2000 is

hereby affirmed.

Rakesh Kumar Sharma @ Chhotu @ Lallu Vs. State of M.P. (Cr.A. No.237 of 2007)

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

sentence.

74. Let a copy of this judgment, be provided immediately to the

appellant, free of cost.

75. The record of the Trial Court be sent back along with copy of

this judgment for necessary information and compliance.

76. The appeal fails and is hereby Dismissed.

(G.S. Ahluwalia)                                             (Deepak Kumar Agarwal)
          Judge                                                              Judge

                               ARUN KUMAR MISHRA
                               2022.02.17 17:42:53 +05'30'