Madhya Pradesh High Court
Badri @ Jagdish Nai vs The State Of Madhya Pradesh on 15 May, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 15 th OF MAY, 2024
CRIMINAL APPEAL No. 936 of 2011
BETWEEN:-
BADRI @ JAGDISH NAI S/O CHHAGANLAL, AGED
ABOUT 26 YEARS, VILL.DEVLI P.S.KALIPEETH
DISTT.RAJGARH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VIVEK SINGH - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU.P.S.KALIPEETH DISTT.RAJGARH (BIOARA)
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUDHANSHU VYAS - PUBLIC PROSECUTOR)
Th is appeal coming on for hearing this day, Justice Vijay Kumar
Shukla passed the following:
JUDGMENT
The present appeal is filed under section 374 of Cr.P.C. being aggrieved
by the judgment dated 10.3.2011 passed by Sessions Judge, Rajgarh (Biaora) in
S.T.No. 212/2010 whereby the appellant has been convicted under section 302
IPC and sentence to undergo R.I. for life with fine of Rs.1000/- and in default
of payment of fine to undergo additional 6 months SI, under section 397 IPC
for 7 years RI and under section 201 IPC for 7 years and fine of Rs.1000/- and
in default of payment of fine to undergo additional 6 months SI.
2. As per prosecution case, on 20.08.2010 at about 4.00 p.m. at village
Kalipeeth, deceased Kantibai was murdered on way to her field by causing
injury on her neck by Dantla/Hasia (sickle) with an intention to commit robbery.
The undisputed facts of the case are that Pappu Vaishnav (pw-2) is son of
Kantibai (deceased) and Mangilal. Premnarayan (pw-7) is son of Mangilal and
Kantibai. Mangilal (pw-8) is husband of Kantibai. This is also undisputed that
Shivnarayan (pw-15) and accused were known to each other. Premnarayan (pw-
7) is son of Kantibai working in Tractor Agency in Bioara since 1997 is
resident of Devlikala. On 21.8.2010 Premnarayan lodged a report at police
station Kalipeeth that in the night at about 8.00 p.m. his brother Pappu called
him from mobile No. 8085455996 from village Latediya and enquired about
mother Kantibai. He replied that she had not come to his house. He went to
village Devlikala and enquired from his father Mangilal, who informed that
mother had come 2-3 days back. She was wearing saree, paticot and silver
anklets on legs. He tried to find out about her whereabouts from the relatives.
When he did not get any information he lodged missing report at No. 7/2010 at
police station Kalipeeth and enquiry was handed over to Head Constable
Dayalsingh. On 21.8.2010 at about 11.25 am, Head Constable Dayalsingh
informed Head Constable Babulal that in pursuant to missing report, he went to
village Devlikala and found a deadbody which was of Kantibai floating over a
pond. When the deadbody was taken out from the pond, a sharp cutting injury
was found on neck and her ankles were amputated and silver anklets were
missing. On the basis of same, Ramesh Dande (pw-16) registered the offence
under sections 302 and 392 IPC against unknown persons vide Dehati Nalishi
(ex.P/7). Investigation was started. During course of investigation, the accused
was arrested and chargesheet was filed.
3. The accused abjured his guilt and pleaded not guilty. After the trial, the
trial court convicted the appellant and sentenced him as mentioned hereinabove.
4. The prosecution case is based on the following circumstantial evidence
:
(i) that a missing report regarding deceased Kantibai was
lodged at police station Kalipeeth.
(ii) on 21.8.2010 the deadbody of Kantibai was recovered
from the Rawatpura pond.
(iii) the death of Kantibai was homicidal
(iv) the silver anklets of deceased were not found with the
deadbody.
(v) the silver anklets, weapon Dantla, clothes of appellant
were recovered on the memorandum of appellant
(vi) the silver anklets were identified by the son of
deceased
(vii) the FSL report is positive affirming presence of
human blood on Dantla (weapon) and clothes of appellant
(viii) the confession of the appellant before Kailash
Narayan (pw-12) i.e. extra-judicial confession.
5. On the basis of memorandum of appellant, silver anklets and weapon
Daranta were recovered. The recovery of anklets were identified by the son of
deceased Premnarayan (pw-7) in the identification conducted vide ex.P/11.
Vide Articles 'C' Dantla, vide Art. D/1 shirt of accused, vide Art. D/2 Baniyan,
vide Art. D/3 trouser and blood stained clothes containing human blood were
seized vide Article 'E. There is extra judicial confession by the accused before
Kailash Narayan (pw-12).
6. After consideration of entire facts and evidence, the Court found that
chain of circumstances is established to prove the prosecution case beyond
doubt and convicted the appellant and sentenced him as mentioned
hereinabove.
7. Counsel for the appellant argued that recovery of silver anklets and
clothes were made after 6 days of the arrest and not properly proved. I.O. PW-
16 Ramesh Dande stated that he prepared arrest Panchnama vide ex.P/12 and
on the memorandum of accused, silver anklets and weapon 'Dantla' was
recovered from Rodi (a concealed place) of agricultural field. He also recovered
trouser and shirt vide ex.P/14 which was already washed out by the accused
before its recovery. The seizure memo of silver anklets and clothes is ex.P/15
and P/16 respectively. It is argued that he deposed about the memorandum
ex.P/12, P/13 and P/14 but did not prove the contents of the seizure memo and
therefore, seizure of articles i.e. silver anklets and clothes are not proved
beyond doubt and therefore, on the basis of said seizure, the identification of
article and FSL report are insignificant. He argued that it is obligatory on the
part of Investigating officer to narrate the contents of seizure memo in his
deposition. In support of his submission, he placed reliance on the judgment
passed by the Apex Court in the case of Hansraj Vs. State of Madhya
Pradesh, Criminal Appeal No. 2143/2024 arising out of SLP (cri) No.
4626/2024 decided on 19.4.2024. He referred para Nos.11 to 13 of the said
judgment.
8. It is urged that prosecution has examined only one interested/related
witness to prove the seizure. It is also argued that seizure of article and weapon
is from an open place which is easily accessible to public and therefore, the
recovery of articles on the memorandum has no evidentiary value to complete
the chain of circumstances. He further argued that extra judicial confession
before Kailash Narayan (pw-12) is a weak kind of evidence and the conviction
could not be based on extra judicial confession.
9. Counsel for the State supports the judgment of conviction and
sentence and submits that prosecution has proved its case beyond reasonable
doubt. The chain of circumstances is complete. He further argued that trial
court erred in paragraph Nos.76 and 77 of the impugned judgment doubting the
FSL report. The prosecution has proved its case from seizure of clothes and
weapon from a hidden place in the agricultural field on the memorandum of
appellant. The human blood was found on the shirt, Baniyan and trouser of the
accused as per FSL report (ex.P/24). The silver anklets recovered on the basis
of memorandum of appellant has been identified by Premnarayan (pw-7) and
identification parade was conducted by Tahsildar Tikamchand Jain (pw-11)
vide ex.P/11.
10. We have heard learned counsel for the parties.
11. Before adverting to the facts of the present case, it is apposite to refer
the law in relation to the cases based on circumstantial evidence.
12. In the case of Shard Birdhichand Sharda Vs. State of Maharashtra,
1984 SCC (4) 116, the Apex Court has held as under :
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned "must or should" and
not "may be" established. There is not only a
grammatical but a legal distinction between "may
be proved" and "must be or should be proved" as
was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807: SCC
(Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental distance
between 'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."
(2) the facts so established should be consistent
only with the hypothesis of the guilt of the accused,
that is to say, they should not be explainable on any
other hypothesis except that the accused is guilty,
(3) the circumstances should be of a conclusive
nature and tendency,
(4) they should exclude every possible hypothesis
except the one to be proved, and
(5) there must be a chain of evidence so complete
as not to leave any reasonable ground for the
conclusion consistent with the innocence of the
accused and must show that in all human
probability the act must have been done by the
accused.
13. As per testimony of Premnarayan (pw-7) and I.O. Ramesh Dande
(pw-16) on 21.8.2010, a Dehati Nalishi of missing of mother of Premnarayan
was was lodged vide ex.P/7 at P.S. Kalipeeth. After registration of Dehati
Nalishi and recovery of deadbody, panchnama of deadbody (ex.P/1) was
prepared in the presence of witnesses. The deadbody of Kantibai was taken for
postmortem. The silver anklets were sealed and panchnama (ex.P/17) was
prepared. The identification of anklets was conducted by Tahsilar Tikamchand
Jain and same was identified by Premnarayan (pw-7), son of the deceased. The
anklets were sent to FSL through Head Constable and its proceedings are
marked as ex.P/9. A query report was also obtained whether injuries could have
been caused by the said weapon Dantla. The seized articles were sent to FSL
vide ex.P/22 and P/23. The report of FSL is ex.P/24. It was opined that injury
Nos.1 to 3 could have been caused by sharp edged weapon. From the
testimony of Premnarayan (pw-7) and Mangilal (pw-8) it is established that a
missing report of deceased Kantibai was lodged on 28.08.2010. As per
testimony of Premnarayan (pw/7), after lodging the report at police station when
he was going back to village, he found that people were gathered and a
deadbody was floating over the pond. The same was taken out from pond with
the help of his brother, Pappu and Kailash Narayan. Pappu (pw-2) also
deposed to the extent that when he was going towards pond, he saw the
deadbody of his mother floating over the pond. With the help of villagers the
deadbody was taken out and her neck was found slashed with some sharp
edged weapon, her ankles were amputated and silver anklets were missing.
Deadbody panchnama was prepared by Ramesh Dande (pw-16). Bhagwansingh
(pw-9) proved the deadbody panchnama. The testimony of these witnesses
Bhagwansingh(pw-1), Pappu (pw-2) and Ramesh Dande (pw-16) has not been
challenged by the defence in any manner in the cross-examination. Thus,
prosecution has proved that deadbody of Kantibai was recovered from the
Rawatpura pond on 21.8.2010. Ramesh Dande (pw-16) further deposed that he
prepared a requisition for postmortem vide ex.P/4 and deadbody was taken by
Banesingh (pw-5). Constable Banesingh (pw-5) also supported the said version
and stated that he had taken the deadbody to district Hospital, Rajgarh. Dr.
A.K.Saxena (pw-10) stated that he was posted as Medical Officer at District
Hospital, Rajgarh. The deadbody of Kantibai was sent for examination vide
ex.P/4. He conducted the postmortem of the deceased and found cut injury on
her neck and her ankles were amputated. He further deposed that he found as
many as 3 injuries on her body. Those injuries were caused within 24 hours by a
sharp edged weapon and injury Nos.1 to 3 were sufficient to cause death. He
found the injury No.1 - trachea was cut. The death of deceased was homicidal.
His report is ex.P/18. Thus, on the basis of aforesaid testimony of witness of
postmortem report, the prosecution has proved the circumstances that the death
of Kantibai was homicidal in nature.
14. Ramesh Dande (pw-16) during course of investigation arrested the
appellant vide ex.P/12 on 26.8.2010. His arrest has been further proved by
Bhagwansingh (pw-9). Banesingh (pw-3) also stated about the arrest of accused
vide ex.P/12. Their deposition has remained uncontroverted. Even otherwise, in
the statement under section 313 Cr.P.C. he admitted his arrest. Thus, it is
proved that appellant/accused was arrested by Ramesh Dande (pw-16) on
26.8.2010. After the arrest, on the memorandum ex.P/13, the appellant provided
recovery of silver anklets and the weapon. Ex.P/13 is also proved by the
testimony of Banesingh (pw-3) who is an independent witness. Bhagwansingh
(pw-9) is also another independent witness of memorandum. Their testimony
has remained impeccable. Thus, memorandum ex.P/13 and on the basis of
aforesaid memorandum, the recovery of silver anklets and Dantla weapon from
Rodi has been proved vide ex.P/15. Banesingh also stated that the silver anklets
and weapon were recovered from Rodi which is a concealed place in the field.
Bhagwansingh also stated that said articles were recovered from Rodi vide
ex.P/15. He denied that Rodi is a public place and there is a public movement.
He stated that Rodi was near well of the field. Ramesh Dande (pw-16) also
denied the suggestion that recovery of silver anklets and weapon was from a
public accessible place. As per the testimony of independent witnesses
Banesingh, Bhagwansingh and Ramesh Dande, it is proved that recovery of
silver anklets and Dantla was not from an open public place. Thus, prosecution
has proved the recovery of aforesaid article on the memorandum of
accused/appellant from a place which was not a public place and accessible to
public. In the same manner, clothes have also been recovered from the said
place which has been proved by these witnesses.
15. So far as identification of articles is concerned, the identification was
conducted by Tahsildar, Tikamchand Jain (pw-11) and in his presence,
Premnarayan (pw-7) who is son of the deceased identified the articles as
belonging of the deceased. The identification is ex.P/11. Nothing has come
from the cross-examination of Tikamchand Jain to show that identification was
bad in law. The accused has failed to explain the presence of blood on the
clothes recovered on his memorandum.
16. The aforesaid seized articles were sent to FSL vide ex.P/23 by S.P.
Rajgarh vide letter No. 297/2010 which has been proved by I.O. Ramesh Dande
(pw-16). In the first para of FSL report it has been mentioned that sample along
with letter no. 297/2010 was received along with seal of Superintendent of
Police, Vidisha. In paragraph No. 76 and 77, the trial court did not consider the
FSL report only on the ground that the sample was sent with seal of SP
Vidhisha. Upon perusal of the FSL report ex.P/24 and letter No. 297/2010
ex.P/23 it is crystal clear that letter was sent by Superintendent of Police
Rajgarh and not by Superintendent of Police, Vidisha. There is no seal of S.P.,
Vidisha. The same appears to be a typographical mistake. Upon perusal of
letter No. 297/2010 (ex.P/23) it is clear that same was written by S.P., Rajgarh.
FSL report confirms human blood on weapon vide Article 'c', shirt and baniyan
vide Arcile D/3 of accused, which has not been explained by accused in his
statement under section 313 Cr.P.C.. Thus, the FSL report, was erroneously
not considered by the trial court in evidence as one of the circumstances.
17. The arguments of counsel for appellant that I.O. has not reproduced
the exact words of memorandum of appellant, and therefore, conviction is bad
would not apply to the facts of the present case as in the present case, I.O. has
clearly mentioned the exact words of the memorandum, which is reproduced
hereinbelow :
मने िदनांक 26.8.2010 को अिभयुक्त को िगर0 का पंचनामा .पी;12 बनाया
था जस पर बी से बी मेरे हस्त ा र है। अिभयुक्त ने पूछताछ पर बताया था िक
उसने चांदी के कडे व दांत ला अपने खेत क रोडी म िछपाकर रखा है चलो
चलकर बरामद करा देत ा हं। मेमोरण्डम .पी.13 है जस पर बी से बी मेरे
हस्त ा र है। अिभयुक्त ने मुझे यह भी बताया िक घटना के समय वह जो पट व
शट पहने था उसने शट व बिनयान को धोकर पहन लया जसका मेमो
.पी.14 लखा था जस पर बी से बी मेरे हस्त ा र है। अिभयुक्त ने
मेमोरण्डम पी.13 के अनुसार अपने घर म रोडी से दांत ला और चांदी के कडे
जप्त कराये थे जसका जप्त ी पंचनामा .पी.15 है जस पर बी से बी मेरे
हस्त ा र है। मने अिभयुक्त से पट शट व बिनयान जप्त कर पंचनामा
.पी.16 बनाया था जस पर बी से बी मेरे हस्त ा र है।
18. In view of aforesaid deposition of I.O., the judgment passed by the
Apex Court in the case of Hansraj (supra) would not render any assitance to the
submission of learned counsel for appellant.
19. Apart from that, there is statement of Kailash Narayan (pw-12) who
stated that accused confessed before him that he had killed the deceased
Kantibai by cutting her neck and amputating her ankles. From his cross-
examination, there is nothing to suggest that he was having any reason to make a
false statement in the court. Suggestion made on behalf of applicant was denied
in para-4. No material was placed in defence to show that said witness was
having any previous enmity with the accused. Thus, prosecution has proved its
case beyond any doubt and chain of circumstances is complete. The seizure of
silver anklets and clothes of accused have been found which proved beyond
doubt by the testimony of witnesses, identification of articles by Premnarayan
(pw-7) and identification conducted by Tahsildar Tikamchand Jain (pw-11).
FSL report Ex.P/24 has proved the presence of human blood on the weapon
seized from the accused and on shirt, baniyan and trouser.
20. The testimony of Premnarayan (pw-7) cannot be disbelieved only on
the ground that he is son of the deceased and is a related or interested witness.
With regard to evidentiary value of interested or related witness, the Apex Court
has held in the case of Jodhan Vs. State of M.P., 2015(13) SCC 52 that
testimony of witness cannot be discarded only on the ground that he is a
interested witness if the prosecution case is proved otherwise.
21. In the case of Hari Obula Reddy Vs. State of A.P., AIR 1981 SC
82, the Court has ruled that evidence of interested witnesses per se cannot be
said to be unreliable evidence. partisanship by itself is not a valid ground for
discrediting or discarding sole testimony.
22. In the case of Arjun Vs. State of C.G., 2017 (2) MPLJ (cr) 305,
the Hon'ble Apex Court held as under :-
"Evidence of related witness is of evidentiary value. Court
has to scrutinize evidence with case as a rule of prudence
and not as a rule of law. Fact of witness being related to
victim or deceased does not by itself discredit evidence.
23. Further In the case of Roop Narain Mishra Vs. State of U.P.
(2017 Cr.L.J. 1487), it was held :-
"on the point of 'interested witnesses' the Hon'ble Supreme
Court in State of U.P. Vs. Jagdeo, 2003 Cr.L.J. 844 (SC)
observed that only on the ground of interested or related
witnesses, their evidence cannot be discarded. Most of the
times eye witnesses happen to be family members or close
associates because unless a crime is committed near a
public place, strangers are not likely to be present at the
time of occurrence."
24. Apart from that, extra judicial confession of pw-12 is also a
corroborating evidence. In the case of Pawan Kumar Chourasia Vs. State of
Bihar, 2023 SCC Online SC 259, the Apex Court has held the evidentiary
value of extra judicial confession as under :-
"As far as extra judicial confession is concerned, the law is
well settled. Generally, it is a weak piece of evidence.
However, a conviction can be sustained on the basis of
extra judicial confession provided that the confession is
proved to be voluntary and truthful. It should be free of any
inducement. The evidentiary value of such confession also
depends on the person to whom it is made. Going by the
natural course of human conduct, normally a person would
confide about a crime committed by him only with such a
person in whom he has implicit faith. Normally, a person
would not make a confession to someone who is totally a
stranger to him. Moreover, the Court has to be satisfied
with the reliability of the confession keeping in view the
circumstances in which it is made. As a matter of rule,
corroboration is not required. However, if an extra judicial
confession is corroborated by other evidence on record, it
acquires more credibility."
25. In the recent judgment of Apex Court in the case of Pritinder Singh
@ Lovely Vs. State of Punjab, (Cr.A.No. 1635 of 2010), referring to the
earlier judgments, the Apex Court held that extra judicial confession is one of
the weak kind of evidence but it has got corroborative value.
26. In the present case, the chain of circumstances as held by Apex
Court in the case of Sharad Birdhichand Sarda(supra) is complete.
27. Thus, in view of assimilation of aforesaid facts and evidence, we find
that prosecution has proved its case beyond doubt. As a consequence, the
appeal is dismissed.
(VIJAY KUMAR SHUKLA) (HIRDESH)
JUDGE JUDGE
MK
