Madhya Pradesh High Court
Sanjay vs State Of M.P. on 24 June, 2022
Author: Subodh Abhyankar
1
Cr.A. No.712/2007
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 24th OF JUNE, 2022
CRIMINAL APPEAL NO.712 OF 2007
Between:-
SANJAY S/O VISHNU PRASAD KUSHWAHA
AGED ABOUT 26 YEARS
OCCUPATION: CYCLE SHOP
R/O SHOP 51, SABNIS BAG
INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI LOKESH BHATNAGAR, ADVOCATE)
AND
STATE OF M.P.
THROUGH P.S. AERODROME
INDORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI A. S. SISODIA, GOVERNMENT ADVOCATE FOR
STATE)
Cr.A. No.712/2007
Reserved on : 11.02.2022
Delivered on : 24 .06.2022
This appeal coming on for judgment this day, Hon'ble Shri
Justice Satyendra Kumar Singh passed the following:
JUDG MENT
The appellant has preferred this criminal appeal under Section
374(2) of the Code of Criminal Procedure, 1973 (2 of 1974) [in short
"Cr.P.C."] against the judgment dated 25.03.2007 passed by the 13 th
Additional Sessions Judge, Indore (M.P.) in S.T. No.50/2006, whereby the
appellant has been convicted under Sections 364, 302 and 201 read with 34
of the Indian Penal Code, 1860 (in short "IPC") and sentenced as under :-
S. Conviction Sentence
Imprisonment Fine Additional
No.
amount imprisonment
in default of
payment of
fine
Cr.A. No.712/2007
1 302 of IPC Life Rs.10,000/- 6 months RI
imprisonment
2 364 of IPC 10 years RI Rs.2,000/- 3 months RI
3 201 of IPC 3 years RI Rs.1,000/- 1 month RI
2. Prosecution story, in brief is as follows :-
(i) That on 03.10.2005, at about 10.00 PM, while
complainant Satyanarayan was standing at square near his
residence 38/2, Jaibhawani Nagar, Indore alongwith his friends
Balli Kushwah, Pappu Ghatge, Pappu Sharma, Manoj Solanki
and brother deceased Kamal making collection for
preparations of Nav Durga puja, appellant Sanjay and co-
accused Mukesh came there and took the deceased Kamal with
them on the motorcycle, which appellant Sanjay was driving
whom deceased referred as his brother-in-law. Deceased
Kamal thereafter did not return home. Next day, on being
enquired about the whereabouts of the deceased, appellant
Sanjay informed that he dropped Kamal outside his house on
the same night. When deceased did not return till late night,
Cr.A. No.712/2007
then at about 23.55 hours, missing person's report (Exhibit-
P/11) was lodged by Rakesh at police station Aerodrome,
Indore. Thereafter, on 05.10.2005, Satynarayan made a
written complaint (Exhibit-P/1) to SHO Police Station
Aerodrome, Indore against the appellant and co-accused
Mukesh on the basis of suspicion as deceased had a fight with
the appellant some 7-8 days prior to the date of incident and
co-accused Mukesh on being inquired about the whereabouts
of the deceased told different version than that of appellant that
he dropped the deceased outside his in-law's house. S.I. Ashok
Rangshahi, on the basis of aforesaid written complaint, lodged
FIR (Exhibit-P/2) against the appellant as well as co-accused
Mukesh for the offences punishable under Section 364 read
with 34 of IPC.
(ii) During investigation, on 06.10.2005, ASI P. S.
Chouhan went to the place of incident, prepared spot map
(Exhibit-P/3), recorded the statements of prosecution witnesses
and made a search for the dead-body of the deceased Kamal.
Cr.A. No.712/2007
On 08.10.2005, S.I. Ashok Rangshahi arrested the appellant
Sanjay, as per arrest memo (Exhibit-P/7) and co-accused
Mukesh, as per arrest memo (Exhibit-P/8). He recorded their
memorandum statements Exhibit-P/11 and P/10 respectively
and thereafter, seized a clutch wire, a broken silver chain, a
pearl necklace, a leather purse containing photographs of
appellant Sanjay and deceased's wife Babitabai alongwith
appellant's license and an amount of Rs.170/- cash on their
instance from Gajarghas near Ralamandal Hills, Indore as per
seizure memo (Exhibit-P/6). On the same day, he also seized a
black coloured rubber sandal on the instance of appellant from
a place near Talainaka, Mhow Phata as per seizure memo
(Exhibit-P/5) and a nylon rope from his house as per seizure
memo (Exhibit-P/4). Identification proceeding was conducted
as per identification memo (Exhibit-P/10) wherein deceased's
brother Ritesh identified the seized broken silver chain and
pearl necklace as the articles of deceased alongwith deceased's
wife photographs. Search of the body of the deceased was
Cr.A. No.712/2007
conducted in Narmada river near Mortakka bridge and also at
Ralamandal Bawdi but the same was not found. After
completion of investigation, charge-sheet was filed before the
Judicial Magistrate First Class, Indore who committed the
same to the Court of Sessions Judge, Indore.
(iii) During trial, co-accused Mukesh filed an application
dated 21.02.2006 under Section 307 of Cr.P.C. through jail for
tendering pardon. Learned Trial Court vide order dated
08.03.2006, excluded his trial and directed to record his
statements under Section 307 of Cr.P.C. Thereafter,
statements of co-accused Mukesh were recorded under Section
307 of Cr.P.C. alongwith statements of other prosecution
witnesses.
3. Learned Trial Court considering the material prima-facie
available on record, framed the charges under Sections 364 r/w 34, 302 r/w
34 and 201 r/w 34 of IPC against the appellant, who abjured his guilt and
prayed for trial. In his statement recorded under Section 313 of Cr.P.C.,
the appellant pleaded his false implication in the matter but he did not
Cr.A. No.712/2007
examine any witness in his defense.
4. Learned Trial Court after appreciating the oral as well as
documentary evidence available on record, recorded the findings that
prosecution proved its case beyond reasonable doubt against the appellant
for the offences punishable under Sections 364, 302 and 201 read with 34
of IPC and sentenced him, as mentioned in para-1 of this judgment. Being
aggrieved with the said judgment of conviction and order of sentence,
appellant has preferred the instant appeal for setting aside the impugned
judgment and discharging him from the charges framed against him.
5. Learned counsel for the appellant submits that the impugned
judgment passed by the learned Trial Court is erroneous on both facts and
in law and based on surmises and conjectures. The prosecution has failed
to prove the fact that deceased was subjected to homicidal death as neither
his dead body has been recovered nor anything else is on record to prove
the fact that he had been murdered. Prosecution has also failed to prove
the fact that appellant had been carrying any motive to commit the murder
of the deceased. Complainant Satyanarayan (PW-2), Balli @ Mahesh
(PW-3), Manoj (PW-4), Rajesh (PW-7) and Rakesh (P-11) all are
Cr.A. No.712/2007
interested witnesses and none of them have stated anything material about
the incident except that on the date of incident, appellant alongwith co-
accused took the deceased on his motorcycle and deceased was last seen in
the company of the appellant and co-accused. There are so many material
omissions and contradictions in their testimony. Mukesh (PW-1) himself
is an accused in the case and his statements recorded under 307 of Cr.P.C.
are inconsistent on material issues and has not supported the prosecution
case therefore, without any corroborative evidence, only on the basis of
inconsistent last seen evidence, findings with regard to the involvement of
the appellant in the crime is not sustainable thus, by setting aside the
impugned judgment of conviction and order of sentence, the appellant may
be acquitted from the charges framed against him. Learned counsel for the
appellant has placed reliance on the judgments passed by Hon'ble the Apex
Court in the cases of [Mohd Younus Ali Tarafdar Vs. State of West
Bengal[(2020) 3 SCC 747], Malaichamy and Another Vs. State of Tamil
Nadu [(2019) 17 SCC 568], Basheer Begum Vs. Mohammad Ibrahim
And Others [(2020) 11 SCC 174]
6. Per contra, learned Public Prosecutor for the respondent-State,
Cr.A. No.712/2007
while supporting the impugned judgment of conviction and order of
sentence submits that the judgment was passed by the Trial Court after
proper appreciation of evidence available on record. Appellant wanted to
marry deceased's wife and was having motive to commit the murder of the
deceased. Prosecution witnesses very well proved that appellant alongwith
co-accused took the deceased last time and Mukesh (PW-1) in his
statement recorded under 307 of Cr.P.C. specifically deposed that
appellant had told him that he threw the deceased into Narmada river from
Mortakka bridge and committed his murder. Therefore, confirming the
impugned judgment of conviction and order of sentence, the appeal filed
by the appellant may be dismissed. Learned counsel for the respondent has
placed reliance on the judgments passed by Hon'ble The Apex Court in the
case of State of Rajasthan Vs. Kashi Ram [(2006) 12 SCC 254], Ranjit
Kumar Haldav Vs. State of Sikkim [(2019) 4 SCC 684], Sanatan Naskar
And Another Vs. State of West Bengal [(2010) 8 SCC 249] and Sanjay
Rajak Vs. The State of Bihar (Cr. A. No. 1070 of 2017 decided on
22.07.2019).
Cr.A. No.712/2007
7. We have heard learned counsel for the parties and perused the
record.
8. In the present case, there is no direct evidence regarding the
involvement of the appellant in the crime. Prosecution case is based on
circumstantial evidence. Factors to be taken into account in adjudication
of cases of circumstantial evidence as laid down by the Hon'ble Supreme
Court in the case of Anjan Kumar Sarma vs. State of Assam 2017 (4)
SCC 359 are as follows :-
(1) The circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned
'must' or 'should' not and '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
the 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 provided; and
(5) There must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
Cr.A. No.712/2007
innocence of the accused and must shown that in all human
probability the act must have been done by the accused.
9. The circumstance relied upon by the prosecution in this case are
(i) motive for the commission of offence,
(ii) the last seen circumstance and
(iii) the recovery of seized articles.
10. Deceased's wife Babitabai (PW-6) deposed that her marriage
with the deceased was solemnized on 23.05.2005 i.e. about four-five
months before the date of incident. She further deposed that her parents
are residents of Sabnis Bag where appellant also resides near her aunt
(Bua) Laxmibai's house. She deposed that she used to go to her Bua's
house where appellant met her occasionally and at that period of moment,
he had told her that he likes her and wanted to marry with her. She further
deposed that after her marriage, appellant used to come to her in-law's
locality Jaibhawani Nagar as the deceased's uncle Tikam Verma's marriage
was solemnized with Sundersingh's daughter who is a resident of Sabnis
Bag and appellant called his daughter as his sister. She deposed that
appellant tried to talk with her at Jaibhawani Nagar also and had told her
Cr.A. No.712/2007
that he still likes her and wanted to marry with her which she refused
straightaway, as she was already married.
11. Laxmimbai (PW-5) has deposed that Babita Bai is her niece,
while appellant is her neighbour and both used to come at her house.
Sundersingh (PW-9) deposed that appellant resides near his house in
Sabnis Bag and called his daughter as sister. He also deposed that his
daughter is married to Tikam Verma (who is uncle of deceased Kamal and
resident of Jaibhawani Nagar) and appellant used to visit his house as well
as his son-in-law Tikam Verma's house. Appellant has not challenged the
aforesaid statements of both the above witnesses therefore, there is no
reason to disbelieve deceased's wife Babitabai's statement that appellant
met with her prior and after her marriage at her Bua Laxmibai's house and
deceased's uncle Tikam Verma's house and had shown her inclination
towards her saying that he likes her and wanted to marry with her. As
Babitabai was married to deceased therefore, learned Trial Court has not
committed any error in finding this fact as proved that appellant was
having motive to commit murder of the deceased so that he can marry with
his wife Babitabai.
Cr.A. No.712/2007
12. Complainant Satyanarayan (PW-2) deposed that on the date of
incident, at about 9.00-10.00 PM, when he alongwith his brother deceased
Kamal was standing at square near his residence making collections for
preparation of Nav Durga puja, appellant alongwith one more accused
came there and called his brother deceased Kamal and thereafter, Kamal
went with them saying that he will return within 1-2 hours. Balli @
Mahesh (P-3), Manoj (PW-4), Rajesh (PW-7), Shyam Sharma (PW-8),
Rakesh (PW-11) and Pappu @ Kailash (PW-12) all have supported his
aforesaid statement and deposed that at the time of incident, they were
present on the spot and appellant alongwith one more accused took the
deceased on his motorcycle in front of them.
13. Complainant Satyanarayan (PW-2) deposed that when his
brother deceased did not return home, next day morning, he asked the
appellant about his whereabouts, then appellant told him that he left the
deceased in front of his house on the same night. He further deposed that
he waited for the deceased till night and thereafter, got his missing person's
report registered through his brother Rakesh at Police Station Aerodrome,
Indore. Rakesh (PW-11) deposed that when his brother deceased did not
Cr.A. No.712/2007
return home, he alongwith his friends and relatives made search for him
and thereafter, in the same night at about 11.00-11.30 PM, lodged missing
person's report (Exhibit-P/11-A) at Police Station Aerodrome, Indore.
14. Complainant Satyanarayan (PW-2) deposed that when his brother
deceased did not return home on the next day also, then on third day i.e. on
05.10.2005, he made a written complaint (Exhibit-P/1) stating therein
suspicion on the appellant and co-accused Mukesh who took the deceased
with them. SHO Ashok Rangshahi (PW-15) deposed that he, on the basis
of above report (Exhibit-P/1) lodged the FIR (Exhibit-P/2) bearing Crime
No.532/2005 at Police Station Aerodrome, Indore against the appellant and
co-accused Mukesh. During trial of the case, co-accused Mukesh moved
an application under Section 307 of Cr.P.C. through jail authorities for
tendering pardon. In pursuance of which, vide order dated 08.03.2006, his
trial was excluded and he was directed to record his statements under
Section 307 of Cr.P.C. thereafter, his statements were recorded.
15. Mukesh (PW-1) in his statements recorded under Section 307 of
Cr.P.C. has deposed that he and appellant both are residents of same
locality Sabnis Bag and on the date of incident i.e. on 03.10.2005, at about
Cr.A. No.712/2007
8.00-8.30 PM, appellant came to his house and took him on his motorcycle
saying that they have to visit Jaibhawani Nagar. He further deposed that
he alongwith appellant went to Jaibhawani Nagar from where appellant
took the deceased also on his motorcycle and all of them went towards
Kaalaghoda. In this way, statements of the complainant Satyanarayan
(PW-2) with regard to the fact that on the date of incident, appellant
alongwith co-accused took the deceased on his motorcycle, thereafter
deceased did not return home are supported by not only the statements of
prosecution witnesses Balli @ Mahesh (PW-3), Manoj (PW-4), Rajesh
(PW-7), Shyam Sharma (PW-8), Rakesh (P-11), Kailash @ Pappu (PW-
12), but also from the statements of accomplice witness Mukesh (PW-1)
who himself moved an application under Section 307 of Cr.P.C. for
tendering pardon and also by the missing person's report (Exhibit-P/11-
A), written complaint (Exhibit-P/1) and FIR (Exhibit-P/2) therefore, there
is no reason to disbelieve the aforesaid evidence of last seen circumstance
produced by the prosecution. Hence, it is established that on the date of
incident, at about 9.30-10.30 PM, appellant along with one more accused
took the deceased on his motorcycle whereafter, deceased did not return
Cr.A. No.712/2007
home.
16. It has vehemently been argued on behalf of the appellant that
Mukesh (PW-1) in para 22,23 and 24 of his cross-examination specifically
stated that appellant and he himself had not taken the deceased and all the
earlier statements made by him with regard to the incident were given
under pressure. It is further argued that Mukesh has not been granted
pardon also therefore his statements cannot be treated as evidence of an
accomplice and should not be taken into consideration.
17. It is true that in the instant case Mukesh (PW-1) has not been
granted pardon as he after stating the incident in his statement recorded on
08.03.2006 under Section 307 of Cr.P.C. stated in para 22 of his cross-
examination recorded on 15.02.2007 i.e. after about a year that earlier he
had made statements under pressure. In the case of Somasundaram Vs.
State [(2016)16 SCC 355], Hon'ble the Apex Court referring decision
passed in Laxmipat Chorariya Vs. State of Maharashtra[AIR 1968 SC
938] has held that the mere fact that pardon has not been granted by a
Court of law does not make an accomplice cease being an accomplice.
Relevant paras are as follows:
Cr.A. No.712/2007
64. From a perusal of the evidence of PW-10 and PW-
11, it becomes clear that they are accomplice witnesses. It is
also clear that the case of the prosecution heavily rests on
their evidence. Before we proceed to examine the culpability
of A-3 and A-4, it is important for us to examine the
reliability of the evidence of the above accomplices. Section
133 of the Indian Evidence Act, 1872, which deals with the
testimony of accomplice witness, reads as under:
"133. an accomplice shall be a competent
witness against an accused person; and a
conviction is not illegal merely because it
proceeds upon the uncorroborated testimony
of an accomplice."
65. The High Court, in the impugned judgment and
order also considered this aspect at some length. After
adverting to judgments of both the Privy Council as well as
this Court, the High Court concluded as under:
"29. A deep study on the above approach in
law as to the evidentiary value of the
deposition of an accomplice, the following
settled principles culminate; that an evidence
of an accomplice need not necessarily be
rejected, that the evidence requires
corroboration in material particulars as well
as the corroboration of the evidence
connecting or tend to connect the accused
with the crime, that such accomplice witness
is reliable. If the above tests are satisfied, the
evidence of an accomplice can be safely
relied upon to hold the accused guilty of the
offence. Keeping the above principle in mind,
Cr.A. No.712/2007
the evidence of PW-10 and PW-11 should be
considered."
66. In the instant case, PW-10 and PW-11 have not
been granted pardon by any Court and have been arrayed as
prosecution witnesses. This Court has held that the mere fact
that pardon has not been tendered by a court of law does not
make an accomplice cease being an accomplice. The learned
senior counsel Mr. Basant R. has aptly placed reliance upon
the case of Laxmipat Choraria v. State of Maharashtra[9], this
Court held as under:
" 7......The word accomplice is ordinarily
used in connection with the law of evidence
and rarely under the substantive law of
crimes. Accomplice evidence denotes evidence
of a participant in crime with others.
Section 133 of the Evidence Act makes the
accomplice a competent witness against an
accused person."
13....The witness was, of course, treated as an
accomplice. The evidence of such an
accomplice was received with necessary
caution in those cases. These cases have all
been mentioned in In re Kandaswami
Gounder AIR1957Mad727, and it is not
necessary to refer to them in detail here. The
leading cases are : Queen Emperor v. Mona
Puna I.L.R. 16 Bom. 661, Banu Singh v.
Emperor I.L.R. 33 Cal. 1353, Keshav Vasudeo
Kortikar v. Emperor I.L.R. 59 Bom. 355,
Empress v. Durant I.L.R. 23 Bom. 213, Akhoy
Kumar Mookerjee v. Emperor I.L.R. 45 Cal.
720, A.V. Joseph v. Emperor I.L.R. 3 Rang.
11, Amdumiyan and others v. Crown I.L.R.
1937 Nag. 315, Gallagher v. Emperor I.L.R.
54 Cal. 52, and Emperor v. Har Prasad,
Bhargava I.L.R. 45 All. 226. In these cases
Cr.A. No.712/2007
(and several others cited and relied upon in
them) it has been consistently held that the
evidence of an accomplice may be read
although he could have been tried jointly with
the accused. In some of these cases the
evidence was received although the procedure
of s. 337, Criminal Procedure Code was
applicable but was not followed. It is not
necessary to deal with this question any
further because the consensus of opinion in
India is that the competency of an accomplice
is not destroyed because he could have been
tried jointly with the accused but was not and
was instead made to give evidence in the
case." (emphasis laid by this Court)
18. In view of the aforesaid legal position, it is clear that statements
of Mukesh (PW-1) can be relied upon subject to the same test of reliability
of the evidence of an accomplice. Mukesh (PW-1) in para 23 of his cross-
examination has admitted his signatures on the application dated
29.12.2005 filed by him through jail authorities for making him approvar
in the case. He also admitted that he again filed second application dated
21.02.2006 through his counsel for the aforesaid purposes. He in his
statements recorded on 08.03.2006 u/S 307 of Cr.P.C. stated about the
incident thereafter on 15.02.2007 i.e. after about a year, all of sudden
during cross-examination, he deposed that his earlier statements were
given by him under pressure , appellant and he himself had not taken the
Cr.A. No.712/2007
deceased on the date of incident. From his aforesaid evidence, it is
apparent that he himself filed applications for making him approvar in the
case and made statements about the incident u/S 307 of Cr.P.C. His
inconsistent statements and silence during examination by the court in
itself sufficient to draw an inference that he changed his earlier version and
was probably win over by the appellant. In these circumstances, his earlier
whole statements made u/S 307 of Cr.P.C. cannot be said to be washed off
and can very well be taken into consideration as corroborative piece of
evidence.
19. Mukesh (PW-1) in his statement recorded u/S 307 of Cr.P.C.
deposed that on the date of incident appellant took him as well as decesed
near Kala ghoda where appellant and deceased consumed liquor thereafter,
appellant took him and deceased near Moretaka bridge, sent him for
bringing prashad and when he returned back, he found deceased missing.
On being asked, appellant told him that he threw the deceased into the
river. As he himself deposed that on the date of incident, he was with the
appellant when he took the deceased on his motorcycle and it has already
been found established from the statements of complainant Satyanarayan
Cr.A. No.712/2007
(PW-1) supported by the statements of not only prosecution witnesses Bali
alias Mahesh (PW-3), Manoj (PW-4), Rajesh(PW-7), Shyam Sharma(PW-
8), Rakesh (PW-11), Kaliash alias Pappu(PW-12) , but also by the
statements of accomplice witness Mukesh (PW-1) and also by the missing
person's report (Ex. P-11) lodged on the date of incident and written
complaint (Ex. P-1) and FIR (Ex. P-2) lodged on next day of the incident
that on the date of incident at about 9:30 -10:30 p.m., appellant alongwith
co-accused took the deceased on his motorcycle whereafter deceased did
not return. In aforesaid circumstances, there is no reasons to disbelieve the
statement made by Mukesh (PW-1) that on the date of incident, he saw the
appellant with the deceased alive together near Mortaka Bridge and
appellant and deceased were seen together alive there also.
20. Complainant Satyanarayan (PW-2) deposed that on the date of
incident, when his brother deceased did not return home next day morning,
he asked appellant about the whereabouts of the deceased then appellant
told him that he had dropped the deceased outside his house on the same
night. Appellant neither in his statement recorded u/S 313 of Cr.P.C. nor
anywhere has given any explanation as to when, where and how he parted
Cr.A. No.712/2007
the company of the deceased. As he fails to offer an explanation on the
basis of facts within his special knowledge, he fails to discharge the burden
cast upon him by Section 106 of the Evidence Act. In this regard
observations made by Hon'ble the Apex Court in the case of State of
Rajasthan Vs. Kashiram (supra) can be relied upon which are as follows:
23. It is not necessary to multiply with authorities. The principle is well
settled. The provisions of Section 106 of the Evidence Act itself are
unambiguous and categoric in laying down that when any fact is
especially within the knowledge of a person, the burden of proving that
fact is upon him. Thus, if a person is last seen with the deceased, he must
offer an explanation as to how and when he parted company. He must
furnish an explanation which appears to the Court to be probable and
satisfactory. If he does so he must be held to have discharged his
burden. If he fails to offer an explanation on the basis of facts within his
special knowledge, he fails to discharge the burden cast upon him
by Section 106 of the Evidence Act. In a case resting on circumstantial
evidence if the accused fails to offer a reasonable explanation in
discharge of the burden placed on him, that itself provides an additional
link in the chain of circumstances proved against him. Section 106 does
not shift the burden of proof in a criminal trial, which is always upon the
prosecution. It lays down the rule that when the accused does not throw
any light upon facts which are specially within his knowledge and which
could not support any theory or hypothesis compatiable with his
innocence, the Court can consider his failure to adduce any explanation,
as an additional link which completes the chain. The principle has been
Cr.A. No.712/2007
succinctly stated in Re. Naina Mohd. AIR 1960 Madras, 218.
21. In State of Rajasthan Vs. Thakur Singh (2014) 12 SCC 211 ,
Hon'ble the Apex Court reiterated the principle that burden of proving
guilt of the accused is on the prosecution, but there may be certain facts
pertaining to a crime that can be known only to an accused, the Court held
as under:
22. The law, therefore, is quite well settled that the burden of
proving the guilt of an accused is on the prosecution, but there may
be certain facts pertaining to a crime that can be known only to the
accused, or are virtually impossible for the prosecution to prove.
These facts need to be explained by the accused and if he does not
do so, then it is a strong circumstance pointing to his guilt based on
those facts.
22. In the instant case, since on the date of incident, deceased was
last seen together alive with the appellant at Jai Bhawani Nagar Square
and also near Mortaka bridge constructed over Narmada River and
thereafter deceased was not seen. Therefore, the facts relevant to the
missing of the deceased being known only to the appellant yet he did not
gave any explanation and chose not to disclose anything. Hence, a very
strong presumption is made out against the appellant that deceased was
Cr.A. No.712/2007
murdered by him.
23. Facts of the case Malaichamy & Another (supra) cited by the
learned counsel for the appellant are entirely different from the facts of the
instant case as in the above case witnesses of last seen circumstance gave
their statements after about a week and they even did not depose that they
saw the victim in the company of the accused persons. In the instant case
appellant's name was mentioned in the missing persons report (Ex. P-11A)
lodged on the next day of the incident and also in written complaint dated
05.10.2005 (Ex. P-1) and in the FIR (Ex. P-2) lodged on the basis of
above written complaint. Statements of almost all the last seen witnesses
u/S 161 of Cr.P.C. were recorded on fourth day i.e. on 06.10.2005 hence
aforesaid judgment cited by the learned counsel for the appellant is of no
assistance.
24. It has been argued on behalf of the appellant as the dead body of
the deceased has not been recovered, therefore it cannot be said that
deceased was subjected to homicidal death and was murdered. From the
statements of ASI P.S. Chouhan(PW-14) and S.I. Ashok Rangshahi(PW-
15), it is true that in the instant case inspite of repeated searches made by
Cr.A. No.712/2007
them as per search memo (Ex.P-9, 14,17 & 18), deceased's dead body
could not be recovered. But as held by Hon'ble the Apex Court in the case
of Sanjay Rajak Vs. The State of Bihar(Supra) and also in the case of
Ramanand & ors Vs. State of Himachal Pradesh [1981 AIR 738] that in a
murder case, it is not necessary that body of the victim should be found
and identified i.e. conviction for offence of murder does not necessarily
depend upon corpus deliciti being found. Relevant paras are as follows:
27............In other words, we would take it that the corpus delicti,
i.e., the dead-body of the victim was not found in this case. But
even on that assumption, the question remains whether the other
circumstances established on record were sufficient to lead to the
conclusion that within all human probability, she had been
murdered by Rama Nand appellant ? It is true that one of the
essential ingredients of the offence of culpable homicide required
to be proved by the prosecution is that the accused "caused the
death" of the person alleged to have been killed.
This means that before seeking to prove that the accused is the
perpetrator of the murder, it must be established that homicidal
death has been caused. Ordinarily, the recovery of the dead-body
of the victim or a vital part of it, bearing marks of violence, is
sufficient proof of homicidal death of the victim. There was a time
when under the old English Law, the finding of the body of the
deceased was held to be essential before a person was convicted of
committing his culpable homicide. "I would never convict", said
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Sir Mathew Hale, "a person of murder or manslaughter unless the
fact were proved to be done, or at least the body was found dead".
This was merely a rule of caution, and not of law. But in those
times when execution was the only punishment for murder, the
need for adhering to this cautionary rule was greater. Discovery of
the dead-body of the victim bearing physical evidence of violence,
has never been considered as the only mode of proving the corpus
delicti in murder. Indeed, very many cases are of such a nature
where the discovery of the dead-body is impossible. A blind
adherence to this old "body" doctrine would open the door wide
open for many a heinous murderer to escape with impunity simply
because they were cunning and clever enough to destroy the body
of their victim. In the context of our law, Hale's enunciation has to
be interpreted no more than emphasising that where the dead-body
of the victim in a murder case is not found, other cogent and
satisfactory proof of homicidal death of the victim must be adduced
by the prosecution. Such proof may be by the direct ocular account
of an eye-witness, or by circumstantial evidence, or by both. But
where the fact of corpus delicti, i.e. 'homicidal death' is sought to
be established by circumstantial evidence alone, the circumstances
must be of a clinching and definitive character unerringly leading
to the inference that the victim concerned has met a homicidal
death. Even so, this principle of caution cannot be pushed too far
as requiring absolute proof. Perfect proof is seldom to be had in
this imperfect world, and absolute certainty is a myth. That is why
under Section 3, Evidence Act, a fact is said to be "proved", if the
Court considering the matters before it, considers its existence so
probable that a prudent man ought, under the circumstances of the
particular case to act upon the supposition that it exists. The
Cr.A. No.712/2007
corpus delicti or the fact of homicidal death, therefore, can be
proved by telling and inculpating circumstances which definitely
lead to the conclusion that within all human probability, the victim
has been murdered by the accused concerned. In the instant case,
Circumstances (1) to (5), in their cumulative effect, are not only
inconsistent with the innocence of Rama Nand appellant, but
ineluctably and rationally compel the conclusion that Sumitra has
died and it is Rama Nand appellant who has intentionally caused
her death. Circumstance (3) involves an admission by Rama Nand
and Shish Ram accused that Sumitra has met an unnatural death.
The only difference between the prosecution version and the
defence version is as to whether Sumitra committed suicide or had
been killed by Rama Nand appellant. It has been found that the
story of the suicide set up by the accused is false. The articles
Salwar (Ex. P.14) and the shoes (Ex. P-15) do not belong to her.
They were planted by the accused to lay a false trail and to mis-
direct the investigation. This circumstance taken in conjunction
with the others, irresistibly and rationally leads to the conclusion
that she has been murdered by Rama Nand appellant and her dead
body has been disposed of by the appellants Shish Ram and Kali
Datt.
25. In the present case, in order to prove deceased's homicidal death,
prosecution has recovered a silver chain and a pearl necklace said to be
worn by the deceased at the time of incident on the instance of appellant .
As the aforesaid articles were seized from an open place and none of the
prosecution witness neither in his statement recorded u/S 161 of Cr.P.C.
Cr.A. No.712/2007
nor in his statement recorded during trial has stated that deceased had worn
aforesaid chains at the time when he went with the appellant and co-
accused, therefore, this fact appears doubtful that aforesaid articles were
seized from the possession of the appellant and the same were worn by the
deceased at the time of incident as held by the Apex Court in the case of
Mohd Younus Ali Tarafdar Vs. State of West Bengal(supra) cited by the
learned counsel for the appellant.
26. Prosecution has also recovered a clutch wire and nylon rope as
the articles used in the crime on the instance of the appellant from his
possession but there is nothing on record which could connect the same
with the crime therefore the same are also of no relevance as held by
Hon'ble the Apex Court in the case of Basheer Begum Vs. Mohammad
Ibrahim and Others(supra) cited by the learned counsel for the appellant.
27. So far as the appellant's extrajudicial confession made before
accomplice witness Mukesh (PW-1) and deceased's wife Babita (PW-6) is
concerned, both the above witnesses have supported the prosecution case.
Babita(PW-6) deposed that on the next day of the incident when she was at
her parental house, appellant told her that he threw her husband deceased
Cr.A. No.712/2007
into the river and murdered him. It has been argued on behalf of the
appellant that Babita did not disclose the aforesaid facts till recording of
her statement u/S 161 of Cr.P.C. i.e. till 07.10.2005, therefore the same
cannot be relied upon. This fact has not been challenged that at the time of
incident Babita (PW-6) was at her paternal house and she returned to her
in-laws house after lodging of the report. Admittedly, her marriage was
solemnized 4-5 months back before the incident therefore her conduct with
regard to not disclosing the aforesaid fact cannot be said to be unnatural.
She disclosed the aforesaid facts to the police when her statements were
recorded u/S 161 of Cr.P.C. Her aforesaid statements are supported by the
statements of accomplice witness Mukesh (PW-1) whose statement can
very well be used as corroborative piece of evidence as held earlier.
Appellant has not given any explanation as to when, where and how, he
parted the company of the deceased therefore learned trial Court has not
committed any error in holding this fact as proved that deceased was
subjected to homicidal death and was murdered by the appellant.
28. In view of the aforesaid discussion, prosecution has succeeded in
proving the fact that appellant having motive to commit murder of the
Cr.A. No.712/2007
deceased, took him on his motorcycle with the help of co-accused and was
last seen together with the deceased alive and committed his murder by
throwing him in the river. Hence, the circumstances proved are unerringly
pointing towards guilt of the appellant and we found no fault in the impugned
judgment of conviction and order of sentence passed by learned trial Court.
There is no merit in the appeal. Thus, the appeal is liable to be dismissed.
29. In view of aforesaid discussions, the impugned judgment of
conviction and order of sentence passed by learned trial Court is hereby
affirmed. This appeal filed on behalf of the appellant is hereby dismissed.
The Registry is directed to send back the Trial Court record
forthwith alongwith copy of this judgment. Let a copy of this order be also
sent to the concerned jail authorities for its speedy compliance and
necessary action.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
24.06.2022 24 .06.2022
gp/sh
SEHAR HASEEN
2022.06.25
14:02:52
+05'30'
