Kashiram vs The State Of Madhya Pradesh
2022 Latest Caselaw 13460 MP

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IN THE HIGH COURT OF MADHYA PRADESH : AT JABALPUR
                   BEFORE
                     SHRI JUSTICE SUJOY PAUL
                                     AND

            SHRI JUSTICE PRAKASH CHANDRA GUPTA

                    CRIMINAL APPEAL NO.2000/2011

Between:-

   KASHIRAM S/O. RAM BAGAS,
   AGED ABOUT 50 YEARS, R/O. VILLAGE
   MAJHEDA, P.S. AHMEDPUR, SEHORE
   (M.P.)
                                                               ...APPELLANT

(BY SHRI S. MUKHERJEE -ADVOCATE)

AND

   THE STATE OF MADHYA PRADESH
   THROUGH      POLICE     STATION
   AHMEDPUR, SEHORE (M.P.)
                                                               ..RESPONDENT

(BY SHRI YOGESH DHANDE, GOVERNMENT ADVOCATE FOR
THE STATE)

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       Reserved on                            :       19/09/2022
       Delivered on                           :       __/10/2022
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 Prakash Chandra Gupta, J. :-
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                               JUDGMENT

Appellant has filed this appeal under section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 03.08.2011, passed by Sessions Judge Sehore in Sessions Trial No. 26/2011 whereby the appellant has been convicted under section 302 of the Indian Penal Code 1860 (hereinafter referred to as IPC) and sentenced to undergo imprisonment for life and fine of Rs. 500/-, in default rigorous imprisonment for a period of three months.

2. The case of prosecution in brief is that the accused Kashiram is father-in-law and deceased Pooran Singh was father of Suresh (PW-3). On 26.11.2010 at around 10.30 pm accused Kashiram came at police station Ahmedpur, District Sehore and gave intimation to SHO Charan Singh Chauhan (PW-7) that his Samdhi deceased Pooran Singh, resident of village Gopalpura has rendered his son ill by black magic. He asked him many times to cure his son but he was not doing the same, so today i.e. 26.11.2010 at around 10.00 pm by the bank of Parva river near his field he killed the deceased Pooran Singh. About this intimation a Roznamcha Sanha ( Ex.P/14A) and thereafter at 10.35 pm Suchna Panchnama also has been written by SHO Charan Singh Chauhan (PW-

7), before witnesses Babulal (PW-1) and Pyarelal (PW-2). At 10.40 pm SHO Charan Singh Chauhan (PW-7) proceeded to the spot for verification of intimation given by accused Kashiram along with ASI P.C. Loat (PW-6), Constable 163 Mahendra, Constable 543 Manoj, Nagar Sainik 85 Kuldeep singh and the accused Kasiram, witnesses

Babulal (PW-1) and Pyarelal (PW-2). In this respect Roznamcha-Sanha (Ex.P/12A) has been written.

3. SHO Charan Singh Chauhan (PW-7) along with police personnel and witnesses at the instance of accused reached near the agricultural field of Kashiram by the bank of Parva river in Majheda village and they had seen that Pooran Singh was lying injured on the track path of the farm. Police personnel taking the witnesses and the deceased Pooran Singh in their vehicle came to Police Thana. ASI P.C Loat (PW-6) and Constable Manoj were sent to the deceased's house in Gopalpura to intimate about his death. Constable 163 Mahendra and Sainik Kuldeep Singh took the deceased to Doctor Alok Rai (PW-8). Doctor Alok Rai (PW-8) examined Pooran Singh and declared that he was brought dead. On receiving intimiation Suresh (PW-3) and Gyan Singh (PW-4) reached police station Ahmedpur.

4. Suresh (PW-3) on 27.11.2010 at 2 am had given intimation that on day before yesterday i.e. on Thursday the accused Kashiram had come to Gopalpura at his home and told his father deceased Pooran Singh that Himmat Singh son of accused is unwell, so let he be treated by the deceased Pooran Singh. On 26.11.2010 at 2.30 pm accused took Pooran Singh to Majheda village. On that night after getting information he (Suresh) along with Gyan Singh (PW-4) came to police station Ahmedpur by motorcycle. At that time accused was also present at police station. He asked the accused about the whereabouts of his father. Then the accused confessed that the deceased had spell bounded his son that is why he killed the deceased and dead body of the deceased was on

the bank of Parva river. He enquired with police about his father then the police informed that the deceased's body was sent to Shyampur hospital. Thereafter Suresh (PW-3) and Gyan Singh (PW-4) went to the hospital and saw Pooran Singh dead and his clothes were immersed with blood. There were sharp injuries on head and back of the deceased. Suresh (PW-3) also told that when he had been to matrimonial house his father- in-law Kashiram has said to him that his father is doing spell bounded on Himmat Singh and he must ask his father to cure Himmat Singh otherwise he would kill the deceased. On the aforesaid intimation Charan Singh Chauhan (PW-7) written a Dehati-Nalsi (Ex.P/7) at Community Health Centre, Shyampur and he also lodged Dehati Marg intimation (Ex.P/8). On the basis of Dehati Nalsi (Ex.P/7) on 27.11.2010 at 2 pm, Head Constable Raju Lal (PW-5) has lodged an FIR (Ex.P/10).

5. On 27.11.2010 SHO Charan Singh Chauhan (PW-7) examined deceased's body in the presence of witnesses and prepared Panchnama Lash (Ex.P/9) and handed over deceased's body to Constable Mahendra Singh for postmortem along with letter (Ex.P/17). Doctor Alok Rai (PW-

8) conducted postmortem and gave postmortem report (Ex.P/21). During postmortem he preserved the clothes of the deceased and viscera material. He sealed the same and handed them over to the concerning constable for further examination. On the same day Head constable Raju Lal seized sealed packets of clothes and viscera material of deceased from Mahendra Kumar vide seizure memo (Ex.P/11). About aforesaid proceedings a Roznamcha-Sanha (Ex.P/18A) has been written on 27.11.2010 at Police Station Ahmedpur,

6. During investigation on 27.11.2010 at around 2.35 pm Charan Singh Chauhan (PW-7) inspected the spot and prepared a spot map (Ex.P/6) at the instance of the accused. The clothes which the accused was wearing had blood stains then at around 2.00 pm SHO Charan Singh Chauhan (PW-7) seized the aforesaid clothes i.e. blood stained Kurta and Dhoti from accused vide seizure memo (Ex.P/4). On the same day at 1.40 pm SHO Charan Singh Chauhan (PW-7) interrogated the accused, then the accused disclosed that he has hidden an axe and a knife in the shrubs of Gulsheetavar in the ram of his farm vide disclosure memo (Ex,P/2). At 3.30 pm Charan Singh Chauhan (PW-7) seized a sharp knife and a blood stained axe on which four grey hairs were stuck, at the instance of the accused vide seizure memo (Ex.P/3). At 3.50 pm Charan Singh Chauhan (PW/7) seized blood stained as well as plain soil from the spot of incident and there was a pouch containing silver looking tabiz, a round supari belonging to the accused vide seizure memo (Ex.P/5). At 6.30 pm, he arrested the accused and prepared arrest memo (Ex.P/11). Charan Singh Chauhan (PW-7) sent the seized articles to Forensic Science Laboratory for chemical examination along with letter (Ex.P/19) of Superintendent of Police Sehore dated 31.12.2010. FSL report (Ex.P/20) was received from FSL, Sagar. Statement of witnesses under section 161 of Cr.P.C. has been recorded. After investigation charge sheet was filed against the accused.

7. Learned Trial Court framed charge against the appellant u/s 302 of IPC. The appellant/ accused abjured the guilt and sought trial.

8. The prosecution in order to prove the case has examined Babulal (PW-1) and Pyarelal (PW-2), who are seizure witnesses. Suresh (PW-3) and Gyan Singh (PW-4), alleged the accused made extra judicial confession before them. Head Constrable Raju Lal (PW-5) who wrote FIR (Ex.P/10), ASI PC Loat (PW-6), SHO Charan Singh Chouhan (PW-

7) who is investigating officer and Dr. Alok Rai (PW-8) who conducted Post-mortem.

9. After completion of prosecution evidence, accused was examined under section 313 of the Cr.P.C., he denied commission of the offence and took the defence that he is innocent, he has not committed the offence and has falsely been implicated. In his defence the accused examined Mangilal (DW-1).

10. Learned Trial Court after hearing the parties, convicted and sentenced the appellant for the offence as mentioned above.

11. The learned counsel for the appellant submitted that the prosecution has failed to prove its case beyond reasonable doubt. Findings recorded by the trial court are contrary to the law and evidence available on the record. There is no eye-witness in the case, entire case is based on circumstantial evidence. Chain of circumstance is not complete and conclusive against the appellant. Human blood was found on the clothes of accused, axe, knife and hair seized from the accused, but the blood group is not diagnosed, hence it is not proved that blood present on the aforementioned articles was the blood of the deceased. It is also not established that human hairs were affixed on the axe were of the

deceased. Alleged extra-judicial confession given by the accused before Suresh (PW-3) and Gyan Singh (PW-4) is not reliable furthermore extra- judicial confession was given by the accused to the witnesses after arrest and while he was in the custody of police. Hence, alleged extra-judicial confession is not admissible as evidence. Recovery of the dead body alleged to have been with the confessional statement of the accused, is also not established by the prosecution. The trial court has erred to believe the prosecution witnesses and not believed the defence witness. As per statement of defence witness, it is apparent that appellant has not committed the alleged offence.

12. Learned counsel for the appellant has relied upon the judgments delivered in the case of Makhan Singh V State of Punjab, AIR 1988 SC 1705, Kishore Chand V State of Himachal Pradesh, AIR 1990 SC 2140, Sahadevan and Another V State of Tamil Nadu, (2012) 6 SCC 403, State of M.P. V Ramesh Kumar, 2004 (4) MPLJ 102 and In Reference Received From District And Sessions Judge Anuppur [for confirmation of death sentence] V Phoolchand, 2016 (2) MPLJ (Cri)

231.

13. Per contra learned Government Advocate for the State opposed the submissions and has submitted that the judgment of conviction and sentence is in accordance with law. Further, he submitted that the trial Court has evaluated the statement of witnesses properly and has not committed any error in the aspect of facts and law. Therefore the appeal is liable to be rejected.

14. Learned counsel for the parties confined their argument to the extent indicated above.

15. Firstly, it is important to consider that whether the death of deceased was homicidal in nature or not.

16. Dr. Alok Rai (PW-8) deposed that on 26/11/2010 at 10:55 PM constable Mahendra Kumar brought the deceased Pooran Singh. He examined him and found that the deceased is dead. In this respect MLC report is Ex.P-16A. He further deposed that the dead body of the deceased was kept in Mortuary. On 27/11/2010 an application for post mortem of body of the deceased received from Police Station Ahmedpur thereafter at 10:30 AM he examined the dead body and found that rigor mortis was present in both upper limbs and following injuries was found on the body of deceased.

1. Lacerated wound 2cm x 1cm above left eye.

2. Blood was oozing from nose.

3. Fracture of occipital bone with incised wound size 6 x 3 inch. Whole brain-matter was expel out.

4. Incised wound of 4 cm x 1.5 cm at right infrascapular region.

5. Stabbed wound eleven in numbers sized 2cm x 1cm x 1 cm at right side of back.

6. Stabbed wound 2cm x 1cm x 1.5cm on left side of back.

17. Dr. Alok Rai (PW-8) opined that death of deceased is caused by cardio-respiratory arrest and shock due to head injury and multiple stabbed wounds on back which finally led to excessive blood loss. In

paragraph 5 of cross-examination he stated that duration of death is prior to 12-14 hrs. of post-mortem. Statement of witness is not scratched in cross-examination of the witness by the accused, hence, statement is reliable. Hence it is clear that death of deceased was homicidal in nature.

18. It is true that there is no eye-witness in the case and entire prosecution case is based on circumstantial evidence. Learned Trial Court has found proved following circumstances against the appellant.

1. The accused has made extra-judicial confession to Suresh (PW-3) and Gyan Singh (PW-4).

2. Clothes and weapon seized from the accused were blood stained.

3. Accused had motive to kill the deceased.

19. In respect of circumstantial evidence the Division Bench of this Court in the case of Ramesh Kumar (Supra) has held as under:-

"12. In the present case, there is no direct evidence against the appellant and the prosecution has based its case on the basis of circumstantial evidence. If the prosecution has based its case on circumstantial evidence, the Supreme Court has laid down certain norms for convicting the accused. In the case of Sharad vs. State of Maharashtra, AIR 1984 SC 1622, the Apex Court has laid down the test which should pre-exist before the conviction could be accorded. They are :-

(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."

20. In the case of Ramesh Kumar (Supra) the Division Bench of this court has also placed reliance upon the judgment passed in the case of Makhan Singh (Supra), and has opined as under:-

"16. (iii) (d) In view of above, it would be hazardous to rely the testimony of this witness and to uphold the conviction. True in examination-in-Chief, this witness has said that the accused persons made extra-judicial

confession to him but in the cross-examination he has stated that on account of heavy pressure of police his statement was recorded. Thus, here there raises a serious doubt regarding the truthfulness of the testimony of this witness and no credence could be given to the statement of this witness. Even otherwise, the evidence of extra-judicial confession is a weak type of evidence and it would be unsafe to convict a person solely on the basis of this evidence without any corroborative piece of evidence. In this regard, we may place reliance on the decision of the Apex Court in the case of Makhan Singh vs. State of Punjab, 1988 (Supp) SCC 526."

21. Hon'ble the Apex court in the case of Sahadevan and anr. (Supra) "16. Upon a proper analysis of the above referred judgments of this Court, it will be appropriate to state the principles which would make an extra-judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:

(i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.

(ii) It should be made voluntarily and should be truthful.

(iii) It should inspire confidence.

(iv) An extra-judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.

(v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.

(vi) Such statement essentially has to be proved like any other fact and in accordance with law."

22. In the judgment passed by the Division Bench of this court in the case of Phoolchand Rathore [Supra], the following was observed:-

"26. Recently, in the case of Baskaran and another vs. State of Tamil Nadu, (2014) 5 SCC 765, the Supreme Court has again reiterated the law that an extrajudicial confession can be relied upon only if it has been made voluntarily and is made in a fit state of mind to a witness whose statement is unimpeachable and reliable and is supported by other circumstantial evidence and is

corroborated by independent witnesses in the following terms:

"17. It is no doubt true that this Court time and again has held that an extra-judicial confession can be relied upon only if the same is voluntary and true and made in a fit state of mind. The value of the evidence as to the confession like any other evidence depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. But it is not open to any Court to start with the presumption that extra-judicial confession is insufficient to convict the accused even though it is supported by the other circumstantial evidence and corroborated by independent witness which is the position in the instant case. The Courts cannot be unmindful of the legal position that even if the evidence relating to extra-judicial confession is found credible after being tested on the touchstone of credibility and acceptability, it can solely form the basis of conviction."

23. The Apex Court in the case of Jagroop Singh Vs. State of Punjab (2012) 11 SCC 768 held as under:-

"30. Recently, in Sahadevan v. State of T.N., after referring to the rulings in Sk. Yusuf v. State of W.B. and Pancho v. State of Haryana, a two-Judge Bench has laid down that the extra-judicial confession is a weak evidence by itself and it has to be examined by the court with greater care and caution; that it should be made voluntarily and should be truthful; that it should inspire confidence; that an extra- judicial confession attains greater credibility and evidentiary value if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence; that for an extra judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities; and that such statement essentially has to be proved like any other fact and in accordance with law."

24. It is cogent to examine the present case in the light of aforementioned principles of law laid down in the above judgments.

25. Suresh (PW-3), who is son of the deceased and son-in-law of the appellant, has stated that on the date of incident at about 10-11 pm, police of Police Station Ahmedpur came and told him that the appellant has killed the deceased and dead body of the deceased is laying in the farm of appellant Kashiram, bank of Parva river, village Manjheda. Thereafter this witness alongwith Gyan Singh (PW-4) went to Police Station and saw that the accused was sitting outside police station. He

asked him that where is his father, for which the accused replied "I killed your father", "your father had done witchery on Himmat (son of accused)" hence he killed him and dead body of deceased laying in the farm near Parva river.

26. Gyan Singh (PW-4) deposed that on the date of incident police had come in his village. He also went there, police told Suresh (PW-3) that accused has killed his father Pooran Singh. Thereafter he went to Police Station with Suresh (PW-3). He saw that accused was sitting inside the boundary of the police station. This witness and Suresh (PW-

3) asked the accused about the deceased for which he replied that 'deceased Pooran Singh had done witchery on his son Himmat for which he killed the deceased and the dead body is laying on the bank of river.'

27. In paragraph-5 of cross-examination Suresh (PW-3) and in paragraph-3 of cross-examination of Gyan Singh (PW-4) have admitted that Narmal is father-in-law of sister of Suresh (PW-3), further they denied that the deceased Pooran Singh used to do witchcraft and used to tell about hidden wealth. They have also denied that on the date of incident Narmal took the deceased alongwith him in the morning to get him some hidden wealth, but in the failure to do so, Narmal and his companion killed the deceased. They have also denied that accused Kashiram told police and both the witnesses that Narmal and his companion killed the deceased.

28. Mangilal (DW-1) stated that on 26/11/2010 at 8:00 pm he went to his farm. His farm is just in front of the place of incident. He saw using

torch that in the night, deceased Pooran Singh and Narmal were digging. In morning this witness came to know that Pooran Singh has died. He even told about this incident to police, but police was not ready to listen him. He stated that he is Patel of the village but in paragraph-3 of cross- examination he has stated that he did not ask deceased Pooran Singh and Narmal that what are they digging in the night. In paragraph-4 of cross- examination he stated that when the police did not listen him, he did not say anything furthermore, and did not complain for the same to any senior police officer. Further he said that he did not even tell to anyone in the village. SHO Charan Singh Chouhan (PW-7) in paragraph-5 of cross-examination denied that Mangilal (DW-1) intimated him that on the night of incident at about 8 hrs., deceased Pooran Singh and Narmal were walking nearby the spot, witness further denied that Mangilal (DW-1) also told him that deceased and Narmal were doing witchery to dig out hidden wealth.

29. Therefore, it is clear that Mangilal (DW-1) has stated that he saw the deceased and Narmal in the night on the date of incident while digging something. When he came to know about the death of deceased he complained about the same to the police but the police did not respond, and thereafter being a Patel of the village he had not complained to the senior police official and has also not informed the villagers regarding the same. SHO Charan Singh Chouhan (PW-7) categorically denied that Mangilal (DW-1) had told him that deceased Pooran Singh and Narmal were doing witchery to dig out hidden wealth. Hence aforementioned statement of Mangilal (DW-1) is not reliable,

therefore the learned trial Court has also not erred in disbelieving the statement of Mangilal (DW-1).

30. On perusal of the case, it appears that Dehati Nalshi (Ex.P/7) is lodged on 27/11/2010 at 2:00 am. Thereafter on the basis of Dehati Nalshi, FIR (Ex.P/10) was lodged on the same day at 2:00 pm and accused was arrested on 27/11/2010 at 06:00 pm vide Arrest Memo (Ex.P/1). As per Dehati Nalshi (Ex.P/7), Suresh (PW-3) has given intimation about extra-judicial confession by the accused. Hence it appears that at the time of giving extra-judicial confession accused was not in police custody though as per statement of Suresh (PW-3) and Gyan Singh (PW-4) at the time of extra-judicial confession the accused was sitting in the campus of police station but it also appears that police officials were not present there. Hence it also appears that the appellant has made voluntarily extra-judicial confession before both the witnesses i.e. Suresh (PW- 3) and Gyan Singh (PW-4).

31. Statement of Suresh (PW-3) and Gyan Singh (PW-4) about extra- judicial confession by the accused before them that he killed the deceased has not been challenged by the accused in their cross- examination. There are no contradictions in statement of both the witnesses. Aforementioned statement of Suresh (PW-3) is also supported by Dehati Nalshi (Ex.P/7), hence, statement of Suresh (PW-3) and Gyan Singh (PW-4) is reliable.

32. So far as the recovery of articles of the accused is concerned, in this respect SHO Charan Singh Chouhan (PW-7) deposed that on

27/11/2010 he interrogated the accused, then accused disclosed that he has hidden knife and axe in the bushes present at the ram of the farm. He prepared Disclosure Memo (Ex.P/2). He further said that as per disclosure statement and at the instance of the accused he seized a knife and an axe from the bushes, and prepared Seizure Memo (Ex.P/3). He also said that he checked and found blood stains on the clothes worn by the accused. He seized his clothes and prepared Seizure Memo (Ex.P/4) thereafter he arrested the accused and prepared the Arrest Memo (Ex.P/1). Seizure witnesses Babulal (PW-1) and Pyarelal (PW-2) have not supported the case rather they have accepted their signature on the aforementioned documents. Prosecution has declared them hostile but thereafter also they have not supported the case of prosecution. In this circumstances, the learned trial Court has relied on the statement of SHO Charan Singh Chouhan (PW-7).

33. SHO Charan Singh Chouhan (PW-7) in paragraph-4 of cross- examination denied that the accused has not disclosed about hiding knife and axe. He also denied that he has not seized knife and axe at the instance of the accused. Hence no part of cross-examination could cause any dent on his statement. Though he is a police officer but there is no evidence to show that he was prejudice or was interested to falsely implicate the accused. Therefore, statement of this witnesses is reliable.

34. SHO Charan Singh Chouhan (PW-7) stated that on 27/11/2010 he inspected the place of incident and prepared spot map (Ex.P/6). Babulal (PW-1) and Pyarelal (PW-2) have denied that the police has prepared spot map (Ex.P/6) before them but they have admitted their signature on

(Ex.P/6). Therefore, the aforementioned both the witnesses have not supported the case but they have admitted their signature on the spot map (Ex.P/6), hence statement of Charan Singh Chouhan (PW-7) is reliable.

35. SHO Charan Singh Chouhan (PW-7) deposed that he seized blood stained soil and plain soil, a wallet containing a tabeez and nut, and prepared seizure memo (Ex.P/5). Seizure witnesses Babulal (PW-1) and Pyarelal (PW- 2) have not supported the statement of SHO Charan Singh Chouhan (PW-7) but they have admitted their signature on seizure memo (Ex.P/5), hence, statement of SHO Charan Singh Chouhan (PW/7) is reliable.

36. HC Raju Lal (PW-5) stated that on 27/11/2010 he seized sealed packet of clothes of the deceased and viscera material from constable Mahendra Kumar produced by him from the hospital vide Seizure Memo (Ex.P/11). Though prosecution has not examined witnesses i.e. Constable Mahendra Kumar and Constable Lokesh Raghuwanshi of Seizure Memo (Ex.P/11) but the accused has not cross-examined Raju Lal (PW-5), hence, there is no reason to disbelieve the statement of Raju Lal (PW-5), thus, his statement is reliable.

37. SHO Charan Singh Chouhan (PW-7) stated that he sent seized articles in the case for chemical examination to FSL Sagar alongwith letter (Ex.P/19) of Superintendent of Police District Sehore, wherefrom Chemical Examination Report (Ex.P/20) was received. As per Chemical Examination Report (Ex.P/20) human blood stains were found on the

soil (Article A) seized from the spot, Shirt (Article C1), Dhoti (Article C2), Axe (Article I), Hairs present on the axe (Article I-1) and knife (Article J) seized from the accused Kashiram and Dhoti (Article D1), Kurta (Article D2), Banyan (Article D3), Gamcha (Article D4) recovered from the body of the deceased. Similarly it was also found that hairs (Article I-1) are of human head origin. Therefore it is clear that human blood was found on the weapons and clothes seized from the accused, in this respect accused has not given any explanation in his examination u/s 313 of Cr.P.C. that how human blood stains were found on his clothes worn by him and weapons which were seized at his instance.

38. In the case of Sahadevan (Supra), the following was observed:-

"36. In State of Rajasthan v. Bhup Singh this Court observed (SCC p. 679, para 14) the following as the conditions prescribed in Section 27 of the Evidence Act, 1872 for unwrapping the cover of ban against admissibility of statement of the accused to the police (1) a fact should have been discovered in consequence of the information received from the accused; (2) he should have been accused of an offence; (3) he should have been in the custody of a police officer when he supplied the information; (4) the fact so discovered should have been deposed to by the witness. The Court observed that if these conditions are satisfied, that part of the information given by the accused which led to such recovery gets denuded

of the wrapper of prohibition and it becomes admissible in evidence."

39. It appears that during interrogation the accused has disclosed an information about hiding the weapons i.e. a knife and an axe which made a discovery of fact as the weapons seized were the weapons used to commit the crime. Appellant was accused of the offence under section 302 of IPC and was in police custody. It is apparent that the clothes seized from the accused were blood stained and it was found in chemical examination that there was human blood on the aforementioned weapons and clothes recovered from the accused. Hence, these circumstances against the accused also supports the extra-judicial confession by the accused.

40. So far as the question of motive is related, Suresh (PW-3) stated that 8 days' prior to the incident he went to his matrimonial home, at that time accused said to him that his father i.e. deceased Pooran Singh is doing witchery on Himmat (Son of the accused), asked him not to do the same or else I will kill him. This statement of witness has not been cross-examined by the accused, hence, his statement is reliable. It also appears from the statement of this witness that one day prior of the incident accused had come to the home of deceased and stayed there at night and on the date on incident, the deceased was taken by him to his house after telling him that his son is having uneasiness. After which deceased and accused had went together. Statement of this witness could not be scratched by in the cross-examination, hence, it is clear that son

of the accused, Himmat Singh used to be ill and he was having suspicion that the deceased was doing witchcraft on Himmat. Regarding which he had intimidated Suresh (PW-3) to kill the deceased. Hence, it is clear that the accused had motive to kill the deceased.

41. Apart from that, as per prosecution, there are two other circumstances against the accused on which the learned trial court has given clear findings, as under:-

1. Accused was last seen together with the deceased.

2. The accused had given intimation to the police that he has killed the deceased.

42. In respect for last seen together, Hon'ble the Apex Court in the case of Sahadevan (Supra) has observed as follows:-

"31. In State of UP v Satish this court had stated that (SCC p. 123, para 22) the principle of last seen comes into play "where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased in found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible."

43. Suresh (PW-3) stated that on the date of incident in the morning accused and deceased had gone together thereafter deceased had not returned alive. Recovery Panchnama of dead body has not been prepared by the police therefore it is not clear that when the dead body was

recovered. SHO Charan Singh Chouhan (PW-7) stated that intimation of death of deceased was received on 26/11/2010 at 10:30 pm in this respect Roznamcha Sanha (Ex.P/14A) was written, thereafter, he prepared Suchna Panchnama (Ex.P/15) at 10:30 pm and alongwith other police officials he proceeded to the place of incident to verify the information. He further said that after verifying the intimation took the dead body of the deceased to the hospital Shyampur. Doctor examined and declared him dead. Dr. Alok Rai (PW-8) stated that on 26/11/2010 at 10:55 pm he examined the deceased and found that he is dead, he prepared MLC (Ex.P/16A). Therefore it is clear that the dead body was recovered after 10:35 pm and before 10:55 pm on 26/11/2010. Hence it appears that there was long gap, when deceased had gone with the accused and deceased was found dead. Hence, last seen theory is not acceptable.

44. So far as the question is related to intimation given by the accused to the police that he killed the deceased in this respect the following was observed by the Madras High Court in the case of P. Thangavelu vs. State rep. By the Inspector of Police, R.K. Pet Police Station, Thiruthani Taluk, Thiruvallur District.[CRA 417 of 2006]:-

"17. Circumstance No.III:- After surrender, the accused gave a statement under Section 27 of the Evidence Act to the Investigating Officer, subsequent to which, he took the police team to the place where he buried the body of the deceased. PW-1 and PW-10 have no grudge or animosity against the accused to depose falsely against him. It is the

accused, who pointed out the place of concealment of the body and such conduct of the accused is of vital importance in cases of this nature. The evidence of the Investigating Officer, PWs-1 and 10 to the effect that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 of the Act as to the conduct of the accused. In this regard, the observation made by the Supreme Court in the case law reported in 2005 SCC (Cri) 1938 (A.N.Venkatesh v. State of Karnataka) is quite appropriate and the relevant portion is extracted below:-

"9. By virtue of Section 8 of the Evidence At, the conduct of the accused person is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact. The evidence of the circumstance, simpliciter, that the accused pointed out to the police officer, the place, where the dead body of the kidnapped boy was found and on their pointing out the body was exhumed, 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 falls within the purview of Section 27 or not as held by this court in Prakash Chand v. State (Delhi Admn) (1979 (3) SCC 90). Even if we hold that the disclosure

statement made by the accused-appellant (Exts.P-15 and P-16) is not admissible under Section 27 of the Evidence Act, still it is relevant under Section 8. The evidence of the investigating officer and Pws1,2, 7 and PW4 the spot mahazar witness that the accused had taken them to the spot and pointed out the place where the dead body was buried, is an admissible piece of evidence under Section 8 as the conduct of the accused. ..."

45. SHO Charan Singh Chouhan (PW-7) has stated that on 26/11/2010 accused Kashiram came to the police station Ahmedpur and before witnesses Babulal (PW-1) and Pyarelal (PW-2) said that the deceased Pooran Singh had done witchery on his son Himmat Singh, because of which he killed the deceased with axe and knife in his farm near Parva river. In this respect he wrote Roznamcha Sanha (Ex.P/14A) at 10:30 pm and prepared Suchna Panchnama (Ex.P/15). Babulal (PW-1) and Pyarelal (PW-2) have been examined but they have not supported the case of prosecution. The prosecution has declared them hostile but did not ask single question about intimation given by accused to the witnesses. After declaring hostile the prosecution had also not given any suggestion in this respect. It also appears that SHO Charan Singh Chouhan (PW-7) has not lodged FIR after receiving intimation from the accused and has not prepared disclosure statement of the accused. The witness has also not prepared Recovery Panchnama of dead body of the

deceased. Hence, above statement of SHO Charan Singh Chouhan (PW/

7) is not acceptable.

46. On the basis of foregoing discussion, it is clear that the accused has made extra-judicial confession before Suresh (PW-3) and Gyan Singh (PW-4) that he killed the deceased, thereafter, blood stained clothes and weapons were seized from the accused. In examination, from FSL it was found that there was human blood on the clothes seized from the accused and weapons seized at the instance of the accused. Accused has not given any explanation that how human blood was found on the aforementioned articles. It is also clear that the accused had motive to kill the deceased, hence, the aforementioned circumstances are of a conclusive nature and tendency. The facts so established is consistent only with the hypothesis of the guilt of the accused, that is to say, it is not be explainable on any other hypothesis except that the accused is guilty.

47. Therefore, the prosecution has succeeded to prove the offence u/s 302 of IPC against the appellant beyond reasonable doubt. Hence, learned trial Court has not committed any error in convicting the appellant for the offence. The learned trial court has also given minimum sentence to the appellant, hence, conviction and sentence deserves to be maintained.

48. Resultantly, the appeal is dismissed and the conviction and sentence passed by the learned trial Court is hereby affirmed. The accused is in jail, be intimated about the outcome of this appeal through

the jail superintendent concerned. A copy of this order alongwith the record of the trial Court be also sent back to the trial Court for intimation and compliance.

      (SUJOY PAUL )                     (PRAKASH CHANDRA GUPTA)
         JUDGE                                  JUDGE
RC



RASHMI TIKARAM CHIKANE
2022.10.14 16:48:01 +05'30'