Madhya Pradesh High Court
Kailash vs State Of M.P. on 10 January, 2023
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 10th OF JANUARY, 2023
CRIMINAL APPEAL NO.180 OF 2001
BETWEEN:-
KAILASH, S/O ACHHELAL DHIMAR, AGED 43,
YEARS, R/O NAKHNOLI KI MADHAIYA, POLICE
STATION SOORPURA, DISTRICT BHIND, AT
PRESENT SUB-JAIL BHIND.
........APPELLANT
(BY SHRI ATUL GUPTA - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION CITY KOTWALI, BHIND.
........RESPONDENT
(BY DR. SMT. ANJALI GYANANI - PUBLIC PROSECUTOR)
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Reserved on : 3rd of January, 2023
Pronounced on : 10th of January, 2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Satyendra Kumar Singh pronounced the following:
JUDGMENT
The appellant has preferred this appeal under Section 374 of the
Code of Criminal Procedure, 1973 (for brevity "Cr.P.C.") against the
judgment dated 21/3/2001, passed by the Court of First Additional
Sessions Judge, Bhind (M.P.) in S.T. No.273/1999, whereby the
appellant has been convicted under Section 364 (A) of the Indian Penal
Code (for brevity "IPC") and sentenced to undergo life imprisonment
with fine of Rs.500/-, in default to suffer further six months' rigorous
imprisonment.
2. The prosecution case in brief is as follows:
(i) The appellant Kailash and the complainant Ranveer Singh were
known to each other. The appellant used to visit complainant's house,
situated back to Army Rest House, Bhind. On the date of incident i.e.
6/4/1999 at about 14.00 hours, appellant came to complainant's house
and on the pretext of providing labourer from his village for harvesting
wheat crops, took complainant's son Dinesh @ Chhotelal along with
him. After about 4-5 days when Dinesh did not return back to home, the
complainant went to village Kisupura, where his agricultural land was
situated, and inquired about his son Dinesh. He was informed by his
family members that Dinesh had not come there. On 20/4/1999, when
he met with the appellant and asked him about his son, appellant told
him that his son parted with him on the same day at village Pratappura.
Complainant searched his son at his relatives and friends and thereafter,
on 19/6/1999 at about 19.00 hours, made a written complaint (Ex. P/1)
to the police, on the basis of which a missing person report (Ex. P/2)
about missing of the complainant's son Dinesh was lodged at P.S. City
Kotwali, Bhind.
(ii) On 22/6/1999 and 2/7/1999, statements of complainant Ranveer
Singh, his wife Gaytri Devi, his son Surjeet Singh and neighbor Santosh
Kumar Shrivas were recorded and thereafter, on 9/7/1999 at about 00.30
hours, SHO Rajendra Singh Raghuvanshi lodged the FIR (Ex. P/4)
against the appellant for the offence punishable u/S 365 of IPC. On the
same day, he recorded the statements of aforesaid witnesses u/S 161 of
Cr.P.C. and arrested the appellant as per arrest memo (Ex. P/3). On
5/9/199, I/O Hakim Singh again recorded the statements of complainant
Ranveer Singh along with other prosecution witnesses and after
completion of investigation, filed the charge-sheet against the appellant
before the Court of Chief Judicial Magistrate, Bhind, who committed
the case to the Court of Sessions Judge, Bhind, who made over the same
to the Court of First Additional Sessions Judge, Bhind.
3. Learned Trial Court considering the material prima facie available
on record, framed the charge under Section 364-A of IPC against the
appellant, who abjured the guilt and prayed for trial.
4. Learned Trial Court after appreciating oral as well as
documentary evidence available on record, convicted the appellant for
the offence punishable under Section 364-A of IPC and sentenced him
as mentioned in para 1 of this judgment.
5. Being aggrieved by the impugned judgment of conviction and
order of sentence, appellant has preferred the instant appeal for setting
aside the impugned judgment and discharging him from the charge
framed against him.
6. Learned counsel for the appellant submits that the learned Trial
Court has committed legal error while appreciating the evidence
available on record. The appellant has been convicted only on the basis
of last seen together evidence. It is settled law that the circumstance of
last seen together would normally be taken into consideration for
finding the accused guilty of the offence charged with when it is
established by the prosecution that the time gap between the point of
time when the accused and the deceased were found together alive and
when the deceased was found dead is so small that possibility of any
other person being with the deceased could completely be ruled out. In
the instant case, as per prosecution case itself, dead body of the
complainant's son Dinesh has not been found. He was missing since
6/4/1999 and his missing person report was lodged on 19/6/1999 i.e.
after about more than two months of the incident. Complainant in his
written complaint dated 19/6/1999 and statements dated 22/6/1999,
recorded during missing person inquiry, and also statements dated
9/7/1999, recorded during investigation, nowhere mentioned the fact
that any demand of ransom was made by the appellant or any person on
behalf of him. After about 5 months of the incident when appellant was
in custody, complainant first time, in his statements recorded on
5/9/1999, stated about the demand of ransom. Admittedly, appellant's
relations with complainant were cordial, while complainant's dispute
with Ramesh Chandra Saxena was going on and the place of incident is
a Dacoity Affected Area, therefore, probability of abduction of
complainant's son by some other persons cannot be ruled out.
Prosecution has totally failed to prove its case beyond reasonable doubt.
Thus, impugned judgment of conviction and order of sentence deserves
to be set aside and appellant may be acquitted from the charges framed
against him.
7. Per contra, learned counsel for the respondent/State while
supporting the impugned judgment of conviction and order of sentence
submits that judgment so passed by the Trial Court is based on proper
appreciation of evidence available on record. Complainant and other
prosecution witnesses including independent witness Santosh Kumar
have specifically stated that appellant took the complainant's son Dinesh
alongwith him and he was seen last time with him and he nowhere
explained as to when and where he parted with the company of the
deceased, therefore, learned Trial Court has not committed any error in
convicting the appellant. Hence, the appeal filed by the appellant
deserves to be dismissed.
8. Heard learned counsel for the parties at length and perused the
record.
9. Prosecution case is based on circumstantial evidence and
prosecution, in its support, has examined in all eight prosecution
witnesses including complainant Ranveer Singh (PW-3), his wife
Gayatri Devi (PW-5), his son Surjeet Singh (PW-6) and independent
witness Santosh Kumar Shrivas (PW-4), who saw the appellant taking
complainant's son Dinesh @ Chhotelal with him for the last time. Other
material witnesses are H.C. Vishwanath Upadhyay (PW-1), who lodged
the missing person report (Ex. P/2). SHO Rajendra Singh Raghuvanshi
(PW-7), who lodged the FIR (Ex. P/4) and investigated the case
alongwith I/O Hakim Singh (PW-8).
10. In the case of Anjan Kumar Sarma v. State of Assam, (2017) 14
SCC 359, the Apex Court has laid down the factors which should be
taken into account in adjudication of cases of circumstantial evidence.
Relevant para is as follows:
14. Admittedly, this is a case of circumstantial evidence. Factors
to be taken into account in adjudication of cases of circumstantial
evidence laid down by this Court 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.
(See Sharad Birdhichand Sarda v. State of Maharashtra,
(1984) 4 SCC 116, M.G. Agarwal v. State of Maharashtra,
AIR 1963 SC 200)
11. In the instant case, the circumstances relied upon by the prosecution
are as follows:
(i) On 6/4/1999 at about 14.00 hours, the appellant took Dinesh @
Chhotelal along with him and was last seen together alive with
him.
(ii) On being asked, appellant instead of giving any explanation as to
when and where he parted the company of Dinesh, he fled away
from the house of the complainant.
(iii) Demand of ransom was made from the complainant.
12. From the statements of complainant Ranveer Singh Bhadoriya
(PW-3), his wife Gaytri Devi (PW-5), his son Surjit Singh (PW-6) and
his neighbor Santosh Kumar (PW-4), this fact appears undisputed that
the appellant was known to the complainant and his family members
prior to the date of incident and he used to visit complainant's house,
situated back to Army Rest House, Bhind.
13. Complainant Ranveer Singh Bhadoriya (PW-3) deposed that on
the date of incident i.e. 6/4/1999 at about 14.00 hours, when he along
with his wife Gaytri Devi, his sons Surjit Singh and Dinesh @ Chhotelal
was present at his house, appellant came there and during conversation,
when complainant's son Dinesh asked the appellant to provide labour
for harvesting wheat crops at his village Kisupura, appellant on the
pretext of providing labour took Dinesh along with him towards his
village Nakhnoli Ki Madhaiya. He further deposed that when his son
Dinesh did not return home for 4-5 days, he went to his village Kisupura
and inquired about his son, where he was told by his family member
Sangram Singh that Dinesh had not come there. He deposed that on
20/4/1999, when appellant met him near Gol Market, Bhind and he
asked appellant about his son Dinesh, then appellant told him that
Dinesh had parted him on the date of incident itself at village
Pratappura.
14. Complainant Ranveer Singh Bhadoriya (PW-3) deposed that he
searched his son at his relatives and friends and thereafter, on
19/6/1999, made a written complaint (Ex. P/1) about missing of his son
Dinesh to P.S. City Kotwali, Bhind. H.C. Vishwanath Upadhyay (PW-1)
deposed that on 19/6/1999, at about 19.00 hours, on the basis of
complainant's written complaint (Ex. P/1), he lodged the Missing
Persons Report/Rojnamcha Sanha No. 1368 (Ex. P/2) about missing of
complainant's son Dinesh at P.S. City Kotwali, Bhind. Complainant's
wife Gaytri Devi (PW-5) and son Surjit Singh (PW-6) have also made
similar statement. Complainant's neighbor Santosh Kuamr Shrivas (PW-
4) supported the aforesaid facts and deposed that on 6/4/1999 at about
14.00 hours, when he after closing his shop returned back to his house,
he overheard conversations going on between the appellant and
complainant's son Dinesh and saw the appellant taking the
complainant's son Dinesh from his house.
15. During cross-examination of the above prosecution witnesses,
appellant neither seriously challenged their aforesaid statements nor
anything material has been extracted from them, on the basis of which
their aforesaid statements can be disbelieved or doubted. Therefore,
there is no reason to disbelieve the complainant's statement, which is
supported by the statements of his wife Gaytri Devi (PW-5), son Surjit
Singh (PW-6), neighbor Santosh Kumar (PW-4) and H.C. Vishwanath
Upadhyay (PW-1) and also from his written complainant (Ex. P/1) as
well as from Missing Persons Report (Ex. P/2), registered at P.S. City
Kotwali, Bhind, that on 6/4/1999 at about 14.00 hours, appellant on the
pretext of providing labour for harvesting wheat crops, took
complainant's son Dinesh along with him, whereafter, his son Dinesh
did not return back to his home and is missing since 6/4/1999.
16. So for as the issue whether appellant took the complainant's son
with an intent to compel the complainant to pay ransom and then killed
him, is concerned, although only failure to recover the corpus delecti
will not render the prosecution case doubtful as held by the Apex Court
in the case of Sanjay Rajak Vs The State of Bihar (Criminal Appeal
No. 1070 of 2017) and various other judgments, but prosecution has to
prove all other attendant facts and circumstances to arrive at a finding
based on reasonability and probability based on normal human prudence
and behavior. This is an admitted fact that appellant was known to the
complainant and his family members and he used to visit complainant's
house. It is apparent from the statements of complainant Ranveer Singh
(PW-3), his wife Gaytri Devi (PW-5) and son Surjit Singh (PW-6) that
on the date of incident, when complainant's son Dinesh asked appellant
to provide labour, then he on the pretext of providing labour took
Dinesh alongwith him, therefore, it cannot be inferred that on the said
date, he had gone there with an intent to abduct complainant's son
Dinesh.
17. This is an admitted fact that at the time of incident complainant's
son Dinesh was about 20-21 years old, as his 23 years old brother
Surjit Singh (PW-6), admitted in his cross-examination that Dinesh was
2-3 years younger than him. Complainant's neighbor Santosh Kumar
(PW-4), in para 4 of his cross-examination, admitted that prior to the
incident on various occasions Dinesh used to go with the appellant.
Statements of the complainant Ranveer Singh Bhadoriya (PW-3), his
wife Gaytri Devi (PW-5) and son Surjit Singh (PW-6) are consistent on
the point that after the incident on 20/4/1999, when appellant met with
them, he told them that Dinesh parted his company on the date of
incident itself at village Pratappura. Their statements with regard to the
conduct of the appellant that after the incident, when appellant met with
the complainant and complainant took him to his house and interrogated
him, he fled away from the complainant's house in the night leaving his
clothes there, are contradictory to their earlier statements recorded
during missing person inquiry as well as statements recorded during
investigation u/S 161 of Cr.P.C.
18. Their statements with regard to the demand of ransom are also
contradictory to their earlier statements recorded during missing person
inquiry as well as statements recorded during investigation u/S 161 of
Cr.P.C. Complainant Ranveer Singh Bhadoriya (PW-3), neither in his
written complaint dated 19/6/1999 (Ex. P/1) nor in his statements dated
22/6/1999 (Ex. D/1), recorded during missing person inquiry, as well as
statements dated 9/7/1999 (Ex. D/2), recorded during investigation,
stated about the fact that after the incident on 20/4/1999, when appellant
met with him at Gol Market Bhind, he took the appellant to his house
and interrogated him, then appellant fled away from his house leaving
his clothes there. He in his aforesaid complaint and statements also did
not mention anywhere that any demand of ransom was made from him.
After about 5 months of the incident, in his supplementry statement
dated 5/9/1999 (Ex. D/3), recorded u/S 161 of Cr.P.C., he first time
stated that ransom of an amount of Rs. One Lakh was being demanded
by unknown persons from him.
19. Complainant's wife Gayatri Devi (PW-5) and Surjit Singh (PW-6)
also in their statements dated 2/7/1999, recorded during missing person
enquiry, and also in their statements dated 9/7/1999, recorded during
investigation, nowhere stated about the demand of ransom. Statements
of complainant Ranveer Singh (PW-3), his wife Gayatri Devi (PW-5)
and his son Surjit Singh (PW-6) recorded during trial are contradictory
on the point of amount of ransom said to be demanded from them by the
unknown persons. Complainant Ranveer Singh (PW-3) deposed that the
ransom of an amount of Rs.1,00,000/- was from him, while his wife
Gayatri Devi (PW-5) deposed that ransom of an a mount of Rs.80,000-
90,000/- was demanded from them. It has not been brought on record
that when, where and by whom the said demands were made from them.
20. In view of the aforesaid inconsistent and contradictory statements
of complainant Ranveer Singh (PW-3), his wife Gayatri Devi (PW-5)
and son Surjit Singh (PW-6), this fact cannot be said to be proved
beyond reasonable doubt that any ransom was being demanded from
them. Since the statements of aforesaid prosecution witnesses are also
inconsistent and contradictory on the point of suspicious conduct of the
appellant that he fled away from his house leaving his clothes, therefore,
without any corroborative evidence, only on the basis of last seen
evidence it is not safe to rely upon the prosecution case that appellant
took the complainant's son Dinesh with an intent to compel complainant
to give ransom and then killed him. In this regard judgment passed by
the Apex Court in the case of Anjan Kumar Sarma (Supra) can be
relied upon, wherein it is held that the circumstance of last seen together
cannot by itself form the basis of holding the accused guilty of the
offence.
21. In the instant case, admittedly, complainant's son Dinesh was
major aged about 20-21 years of age at that time and the statements of
the complainant Ranveer Singh (PW-3), his wife Gayatri Devi (PW-5)
and his son Surjit Singh (PW-6) are consistent on the point that after the
incident, on 20/4/1999 when appellant met with the complainant at Gol
Market, Bhind, he told complainant that his son Dinesh parted his
company on the date of incident itself at village Pratappura. Therefore,
it cannot be said that appellant has failed to give any explanation as to
when and where he parted the company of Dinesh. For the sake of
argument, if it is presumed that he has not given any such explanation,
even then considering the material produced on record, it is not safe to
held appellant guilty for the offence punishable u/S 364A of IPC. In this
regard judgment passed by the Apex Court in the case of Bharat Vs.
State of M.P., (2003) 3 SCC 106 can be relied upon, wherein it is held
that the failure of the accused to offer any explanation in his statement
under Section 313 of Cr.P.C. alone was not sufficient to establish the
charge against the accused.
22. Facts of the case of Manoj Kumar Rathore alias Lucho Thakur
Vs. State of Bihar, 2000 Cr.L.J. 2166 cited by learned Trial Court are
entirely different from the facts of the instant case, wherein accused
took 10 years old complainant's son from his house and after about two
months returned alone and did not give any explanation as to when and
where he parted company of the complainant's son. In the instant case,
Dinesh was major aged about 20-21 years of age and after about 14-15
days of the incident, on being asked by the complainant, the appellant
had given details about complainant's son Dinesh that he parted
appellant's company on the date of incident itself at village Pratappura.
Therefore, learned Trial Court has committed error in relying upon the
aforesaid judgment passed by the High Court of Patna and holding the
appellant guilty.
23. Ex-consequenti, the judgment and sentence dated 21/3/2001 passed
by the Court of First Additional Sessions Judge, Bhind (M.P.) in S.T.
No.273/1999 is hereby set aside.
24. The Appellant is on bail. His bail bonds are discharged.
25. The Registry is directed to immediately supply a copy of this
judgment to the Appellant, free of cost.
26. Let the record of the Trial Court be sent back immediately, along
with copy of this judgment, for necessary information and compliance.
27. The Appeal succeeds and is hereby Allowed.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.01.10 14:53:03 +05'30'
