Madhya Pradesh High Court
Ajay Singh & Ors. vs The State Of M.P. on 20 January, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE BINOD KUMAR DWIVEDI
CRIMINAL APPEAL No. 154 of 2003
AJAY SINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
.............................................................................................................................
Appearance:
Shri Satyendra Kumar Vyas, learned senior counsel with
Shri Harshvardhan Pathak, learned counsel for the
appellants
Shri Kamal Kumar Tiwari, learned Government Advocate for
the respondent/State.
Shri Suryansh Shukla, Advocate appearing on behalf of Shri
Amar Singh Rathore, learned counsel for the complainant.
.............................................................................................................................
Reserved on : 19/12/2024
Pronounced on : 20/01/2025
JUDGMENT
Per: Justice Binod Kumar Dwivedi
This appeal under Section 374 of Criminal Procedure Code, 1973
(hereinafter referred to as ‘the Cr.P.C.’) has been preferred against the
judgment dated 01.02.2003 in S.T.No.690/2000, whereby Learned
Additional Sessions Judge, Indore has convicted the appellants for offence
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under Sections 148, 302/149 of IPC, Section 25(1)(b) and 27 of the Arms
Act, 1959 and sentenced to undergo 3 Years R.I., life imprisonment with
fine of Rs.5,000/-, 1 year R.I.with fine of Rs.1,000/-, 7 years R.I. with fine
of Rs.1,000/- for each offence respectively with default stipulation.
2. It is not in dispute that appellants and prosecution witnesses Babu
(PW-1), Shankar (PW-2), Dilip Nagar (PW-3), Dashrath (PW-4), Ganesh
(PW-5), Harisingh (PW-6) are residents of Depalpur. It is also not disputed
that Shankar (PW-2) is nephew of deceased Laxmi Narayan. Dashrath
(PW-4) is brother of the deceased and Ganesh (PW-5) is the father of the
deceased.
3. Prosecution story as having emerged during trial is that on
02.09.2000 at about 6:45 A.M., deceased Laxminarayan along with his bull
calf (pada) had gone towards Takipura, Kakad (vacant land used for
grazing animals). Dilip Nagar (PW-3) had also sent his servant Buddha
(PW-12) to accompany the deceased Laxminarayan. Buddha (PW-12) after
some time informed Dilip Nagar (PW-3) that some quarrel had happened
with Laxminarayan @ Lacchu, the deceased. On this, Dilip Nagar (PW-3)
went to the house of Laxminarayan, deceased, where Shankar (PW-2) was
taking bath. With Shankar and other persons he reached to the spot, where
the deceased Laxminarayan was found lying dead at Takipura, Kakad with
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several bleeding injuries on his body. After witnessing the dead body, he
along with others went to Police Station Depalpur. At the instance of
Dashrath (PW-4), FIR Ex.P-2 was ascribed by the SHO, Depalpur,
R.C.Rajput (PW-14) for offence under Section 302 of Indina Penal Code
(for short hereinafter will be referred as ‘IPC’) at crime No.189/2000. SHO,
R.C.Rajput (PW-14) reached to the spot and prepared spot map Ex.P-13 and
issued Safina Form (Ex.P-4). Naksha Panchayatnama Ex.P-5 of dead body
was prepared. SHO R.C.Rajput (PW-14) sent dead body of the deceased for
conducting autopsy.
4. Dr. Anchal Kumar Silawat (PW-7) on 02.09.2000 at about 12:15 P.M.
conducted autopsy on the dead body of the deceased Laxminarayan S/o
Ganesh Yadav, aged about 36 years and he found following incised wounds
on the dead body of the deceased:-
(i) incised wound size 7 inches x 2 inches bone deep on the
neck which has cut the veins.
(ii) incised wound 3 inches x 2 inches below the wound no.1
which has cut the respiratory cord and blood vessels.
(iii) other wounds were found on right arm, right palm, left
palm, outside portion of left hand and left arm, left shoulder, in
the middle of the chest, right side of chest and right side of
thigh.
(iv) all the injuries were bone deep which have also damaged
bones.
5. Dr. Anchal Kumar Silawat (PW-7) has opined that the death of the
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deceased was about 6 hours prior to the postmortem and the injuries were
caused by hard and sharp objects. Nature of death was homicidal in nature.
Clothes which the deceased was wearing at the time of incident were also
blood stained and having cut marks, were seal packed and handed over to
the Constable. Postmortem report Ex.P-9 was prepared.
6. R.C.Rajput (PW-14), from the spot recovered empty bottles of liquor,
broken bottles of liquor, gold ring, silver ring, bamboo stick and prepared
seizure memo Ex.P-48. He also recovered blood stained and plain soil from
the spot and prepared seizure memo Ex.P-49. From about 1 ½ Farlang of
Khajraya road, found blood stains were collected with the help of cotton
swab. Seizure memo Ex.P-50 was prepared. Investigating Officer
R.C.Rajput (PW-14) also seized the seal packed clothes of the deceased
Laxminarayan received from hospital at Depalpur. On 06.09.2000, the
accused/appellants were arrested and arrest memo Ex.P-21 to Ex.P-26 were
prepared. Appellants were interrogated during custody wherein they
disclosed about the weapons used in the offence.
7. On this disclosure, memorandum under section 27 of the Evidence
Act, Ex.P-27 to Ex.P-33 in the presence of Panch witness Gajju PW-11 and
Ramsingh (PW-13) were prepared. The weapons used in the offence, blood
stained Dharia, Talwar, Pharsi, Kulhadi, knife of iron, iron pharsi were
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seized and seizure memo Ex.P-34 to Ex.P-40 were prepared. Blood stained
clothes of the accused persons were also seized and memorandum Ex.P-41
to Ex.P-47 were prepared by SHO, R.C.Rajput (PW-14). The Investigating
Officer/SHO, Depalpur R.C.Rajput sent letter Ex.P-10 with the seized
vehicles to Dr. Silawat for answering queries, whereupon Dr.Silawat (PW-
7) after perusing the arms, opined that injuries found on the body of the
deceased may be caused by these weapons. Seized Articles including blood
stained soil, plain soil along with blood stained clothes of the deceased and
blood stained weapons with draft Ex.P-52 were sent for chemical
examination to the Forensic Science Laboratory, wherefrom report Ex.P-53
was received with forwarding letter Ex.P-54. Blood was found on the seized
weapons, on the clothes of the deceased and also in sample collected from
Khajraya road.
8. For further examination all the seized articles were sent to Serologist
with letter Ex.P-55 whereon report Ex.P-56 was received from Calcutta,
mentioning that human blood was found present on the clothes of the
deceased and articles G Pharsi (serial no.20) seized from appellant-Ajay.
Human blood was also found on Article S sword (serial no.21) seized from
Harisingh, Articles L-1 and L-2 pant and shirt seized from appellant-Pappu
@ Omprakash (serial no.25-26), pant and shirt M-1 and M-2 (serial no.27
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and 28) seized from Harisingh. Article N-1 and N-2 pant (serial no.29 and
30) seized from appellant-Radheshyam. Article Pant P-1 and P-2 (serial
no.31 and 32) seized from appellant-Bahadur Singh and Article S-1 Pant
seized from appellant-Ajaysingh.. SHO R.C.Rajput (PW-14) obtained
documents (Ex.P-11 to Ex.P-16) from Naib Tehsildar Jitendra Verma (PW-
8) relating to dispute of way in the field between Ganesh father of the
deceased and appellants from Patwari Halka No.29, Jayram (PW-10), spot
map Ex.P-18 and trace map Ex.P-29 was got prepared.
9. Statements of witnesses were recorded under S.161 of Cr.P.C. and
after completion of the investigation, charge sheet against the appellants
along with one co-accused Salam for offence under Sections 147,148,
302/149 of IPC, Sections 25(1)(b) and 27 of the Arms Act was filed before
the Court of competent local jurisdiction. After complying with formalities
stipulated under Section 207 of the Cr.P.C. committed the case to the Court
of Sessions. Sessions Judge in turn on 09.10.2000 made over the case to the
III Additional Sessions Judge, Indore for trial.
10. The trial Court framed charges against the appellants and co-accused
Salam under Sections 147,148, 302/149 of IPC, Sections 25(1)(b) and 27 of
the Arms Act. The appellants abjured the guilt and claimed to be tried. The
prosecution, to prove its case has examined as many as 14 witnesses. Apart
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this, documents Ex.P-1 to Ex.P-56 have also been marked in evidence. The
appellants in their examination under Section 313 of Cr.P.C denied all the
incriminating circumstances and claimed total innocence pleading that they
have been falsely implicated in the case. The appellants in the defense have
examined as many as two witnesses Rajendra Singh (DW-1) and
Omprakash (DW-2) and also marked documents Ex.D-1 to Ex.D-3 in their
defence. The learned trial Court vide the impugned judgment on the basis of
evidence adduced by the prosecution and the defense convicted and
sentenced the appellants as stated hereinabove, giving rise to this criminal
appeal.
11. The conviction and sentence has been challenged on the ground that
learned trial Court has not only disbelieved the evidence led in defense, but
also ignored the serious contradictions, omissions and infirmities in the
statement of prosecution witnesses. It has further been submitted that
prosecution has miserably failed in establishing complicity of the appellants
in the commission of the alleged offence. No eye witness account of the
incident is available against the appellants. In circumstantial evidence,
chain of circumstances is not complete. Even then, on conjectures and
surmises, vide impugned judgment, the appellants have been convicted and
sentenced, thereby the learned trial Court has committed serious error on
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facts and law.
12. It has further been submitted that dispute regarding way to the fields
between father of the deceased Ganesh (PW-5) and appellants has not been
established by evidence adduced. None of the appellants is signatory of the
complaint Ex.P-11 made to the SDO revenue, Depalpur. Seized weapons
and clothes sent to the FSL and Serologist, were not shown to the witnesses
at the time of recording of evidence of the seizure witnesses. It has also
been submitted that FIR Ex.P-2 is antedated as evident from the fact that it
has mention of weapons used for causing injuries on the body of deceased
and no Roznamcha sanha number is mentioned thereon. It amply indicates
that after getting the postmortem report and after seizure of the weapons,
name of wepons used in commission of offence has been mentioned in the
FIR which cast serious doubt on the prosecution case. To bolster his
submissions learned senior counsel for the appellants has relied upon
paragraphs 16 and 17 of the judgments by the Apex Court in Ganesh
Bhavan Patel and Another Vs. State of Maharashtra (1978) 4 SCC 371
which are extracted as under:-
“16. The first of these circumstances is that no F.I.R. appears
to have been recorded in this case before 3 a.m. of the morning
of the 30th November. The prosecution have treated the
statement of Ravji, recorded in the course of investigation, as the
F.I.R. Police Sub-Inspector Patil who was in-charge of the Police
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had recorded this statement of Ravji at 8.30 p.m. On the 29th
November. But no less a witness than Ravji, himself, gave a
direct lie to Patil on this point. Ravji testified in unmistakable
terms that his statement was recorded in the Police Station at 12
midnight or 1 a.m. after the completion of the Panchnama of the
scene of offence. This Panchnama, according to the prosecution,
was completed by the investigators at 12.15 a.m., and
immediately thereafter, the Panchnama in regard to the
production of the blood- stained clothes of accused 1 was
prepared and completed at about 12.45 a.m. Ravji further stated
that he might have signed his statement recorded by the Police,
at 3 a.m.
17. The Trial Court accepted the evidence of Ravji inasmuch
as he stated that his statement-which was treated as F.I.R.-was
recorded by the police between 12 midnight and 1 a.m. and was
completed when he signed it at about 3 a.m. The Learned Judges
of the High Court have disbelieved Ravji on this point, for the
reason that he is a “labour boy” about 18 years old, having “no
sense of time”, and have preferred to accept the ipse dixit of S.I.
Patil that Ravji’s statement was recorded at 8.30 P.M. With
respect, the reasons given by the High Court for brushing aside
the testimony of Ravji on this point, appear to us, manifestly
unsustainable. The very fact that Ravji was a “labour boy”, aged
about 18, far from being a reason for doubting his veracity on
this point, was a guarantee of the truth of his version. He was an
unsophisticated witness who was not fully aware or posted about
the twists and distortions introduced by the investigating officer.
He therefore, unwittingly blurted out the truth on this point. As
against him, S.I. Patil, besides being highly interested in the
prosecution, was supposed to be aware that in order a statement
should be treated as F.I.R., it must be recorded first in point of
time before the commencement of investigation.”
On these premises, learned senior counsel urges this Court for
allowing the appeal and acquitting the appellants of the charges levelled
against them.
13. Per contra, learned counsel for the respondent/State supporting the
impugned judgment submits that prosecution case has been proved by
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positive evidence, oral as well as documentary, available on record and
therefore no exception can be taken to the impugned judgment. Defense
witnesses could not cast any shadow of doubt on the prosecution case and
failed to probabilize their defense, therefore, benefit of doubt cannot be
extended to the appellants. Even if blood stained clothes of the deceased,
blood stained clothes of the accused persons and seized blood stained
weapons of offence sent for FSL as well as serological examination were
not shown to the seizure witnesses, it does not vitiate the trial or adversely
affect prosecution case. The accused persons have every right to demand for
showing the above mentioned articles to the seizure witnesses but they did
not exercise their right and therefore they now can not now in appeal raise
any grievance in this regard. On these submissions, learned counsel for the
State submits that appeal is unmerited and urges theCourt for its dismissal.
14. Heard learned counsel for the parties and perused the record.
15. We have given our anxious consideration to the submissions made by
rival counsel for the parties and have also carefully perused the record. The
question for consideration before this Court is, whether the conviction and
sentence recorded by the learned trial Court is not based on proper
appreciation of relevant legal position.
16. First of all it is to be ascertained whether death of the deceased is
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homicidal in nature. In this regard testimony of Dr. Anchal Kumar Silawat
is relevant, who has conducted autopsy on the dead body. He has found as
many as 15 incised wounds cutting vital organs of the deceased, which
resulted in his death. He has also opined that death of the deceased is
homicidal in nature. No cross examination has been done on the testimony
of this witness, therefore, from unchallenged testimony, it is very much
proved that the death of the deceased was homicidal in nature.
17. The next question which comes for consideration is whether
appellants being armed with weapons formed unlawful assembly and in
furtherance of common object of that assembly committed murder of the
deceased
18. From perusal of the record it is apparent that learned trial Court has
rightly discarded the testimony of Shankar (PW-2) nephew of the deceased,
Dilip Nagar (PW-3), Dashrath (PW-4) brother of the deceased and Ganesh
(PW-5) father of the deceased. These witnesses were cited as eye witnesses
to the incident, but learned trial Court after appreciating their evidence
rightly reached to the conclusion that they are not eye witnesses and their
testimony has no bearing to support the prosecution case and therefore,
their testimony has been discarded as such. Babu (PW-1), Harisingh (PW-6)
and Hajarilal (PW-9) have also turned hostile and therefore, their testimony
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is of no consequence as far as the prosecution case is concerned.
19. In the aforesaid circumstances, testimony of Buddhaji (PW-12) has
become of much more importance as far as prosecution case is concerned.
Buddhaji (PW-12) has stated before the Court that on the fateful day at
about 7:30 a.m. in the morning Pehalwan Sahab the deceased had gone
from the village towards his field with bull calf and he was near about 2
furlong behind him, the deceased went down towards the trench, and
uttered some filthy abuses. The appellants Heera, Pappu S/o Sajan Singh,
Ajay Singh, Bahadur, Pappu S/o Chotesingh and Radheshyam had killed
the deceased Lachhu @ Laxminarayan. When the deceased shouted, he saw
the appellants running away from the spot armed with dharia, sword,
pharsi etc in their hands. After that he went to the village and informed
Dilip Nagar (PW-3) about the incident and he again along with Dilip Nagar
went to the spot. The deceased had died on the spot. When second time he
went to the spot he also found Ganesh (PW-5) was on the spot. He had
some conversation with Ganesh on the spot and also informed him that the
persons who have killed the deceased had fled away from the spot.
20. Thus, from the statement of this witness it is clear that he has not
witnessed the incident i.e. he has not witnessed the commission of offence
by the appellants, but just after the incident he has witnessed the appellants
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running away from the spot and on this point, testimony of this witness has
remained intact even after he was put to lengthy cross examination.
21. Though the learned counsel for the appellants has made strenuous
efforts to impeach the credit of testimony of this witness various counts, but
he could not establish that he has not seen the appellants running away from
the spot after the incident. Learned trial Court has elaborately dealt with the
testimony of this witness Buddhaji (PW-12) in paras 18 to 34 of the
judgment. Paras 29, 31 and 32 are specifically important wherein learned
trial Court has elaborately dealt with contentions from defense side and
efficiently repelled them stating that there is no material omissions,
contradictions, anomalies and infirmities in the testimony of this witness
on the aforesaid point. The learned trial Court has also dealt with the
various case laws namely Pandanana Khare Vs. State of Maharashtra
AIR 1979 SC 697, Anil Phukan Vs. State of Assam AIR 1993 SC 1462
and Badri Vs.State of Rajasthan AIR 1976 SC 560 and concluded that
statement of Buddha (PW-12) after lengthy cross examination has remained
intact on the point that he has witnessed the appellants running away with
their weapons after commission of murder of the deceased.
22. It is undisputed in the instant case that no question has been asked to
the Investigating Officer with regard to delay of two days in recording the
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statement of Buddhaji (PW-12), therefore, this delay in itself could not dent
the prosecution case. Various contentions raised on behalf of the appellants
before the trial Court have been efficiently repelled dealing with the case
laws cited before the trial Court. Learned trial Court aptly relied upon the
judgment of the Apex Court in the case of Naresh Mohanlal Jaiswal Vs.
State of Maharashtra AIR 1997 SC 1523 wherein it has been held that
statement of eye witness cannot be disbelieved merely on the ground that
his statement has been recorded by delay of two days.
23. The Apex Court in the case of Naresh Mohanlal Jaiswal (Supra)
has held as under :-
“10. Entire prosecution story to prove the complicity of the
appellant, hinges upon the two star witnesses of fact i.e. arvind
Mangrulkar (PW 6) and Dadarao Thakre (PW 7). Mr. U.R. Lalit,
Learned Senior Counsel appearing for the appellant while
assailing the evidence of these two eye witnesses urged that their
testimonies were totally incredible and no reliance whatsoever
could be placed on their evidence. While supplementing this
argument, he urged that they were partisan witnesses having
hostile relations with the appellant. He urged that although both
these witnesses claimed to have witnessed the assault caused on
Ramesh Patil yet they did not disclose the same to anyone to
anyone till 8th of January, 1984. their silence was totally opposed
to the human conduct and in the facts and circumstances of the
case, it would be unsafe to rely upon their evidence. We see on
(no) substance whatsoever in any of these submissions. It is true
that the statements of both these witnesses under Section 161 of
the Code of Criminal Procedure were recorded on 8th January,
1984, although, the First Information Report was lodged on 6th
January, 1984 at about 7.55 p.m. within the shortest possible
time. Both these witnesses in their evidence on oath had stated
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identified them at the time of incident. They further stated that
the appellant and his associates were arch rivals of Ramesh Patil
and his associates who were the members of Hanuman Vyayam
shala. They admitted that after reaching their village Bhari, they
quietly went to their respective houses and did not disclose the
fact of assault caused on Ramesh Patil to anybody. They further
admitted although they attended the funeral and were in the
company of berieved members of the family yet did not disclose
the fact of assault by the appellant on Ramesh Patil to anybody.
They then stated that only when the appellant came to be arrested
on 8th January, 1984, they came forward for recording their
statements under Section 161 of the code of Criminal Procedure.
Both the courts below have considered these circumstances very
carefully and concurrently held that the apprehension expressed
by both these witnesses could not be said to be untrue. This being
a finding of fact, it would not be possible for us to interfere with
the said finding in an appeal filed under Section 136 of the
constitution and it is not possible to discredit their evidence.”
24. In the case of State of Himachal Pradesh Vs. Lekh Raj and
another (2000) 1 SCC 247 which deals with regard to the conduct of the
witness and the discrepancies which are important reads as under:-
“7. In support of the impugned judgment the learned
counsel appearing for the respondents vainly attempted to point
out some discrepancies in the statement of the prosecutrix and
other witnesses for discrediting the prosecution version.
Discrepancy has to be distinguished from contradiction. Whereas
contradiction in the statement of the witness is fatal for the case,
minor discrepancy or variance in evidence will not make the
prosecution’s case doubtful. The normal course of the human
conduct would be that while narrating a particular incidence there
may occur minor discrepancies, such discrepancies in law may
render credential to the depositions. Parrot like statements are
disfavoured by the courts. In order to ascertain as to whether the
discrepancy pointed out was minor or not or the same amounted
to contradiction, regard is required to be had to the circumstances
of the case by keeping in view the social status of the witnesses
and environment in which such witness was making the
statement. This Court in Ousu Varghese v. State of Kerala, [1974]
3 SCC 767, held that minor variations in the accounts of theSignature Not Verified
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witnesses are often the hallmark of the truth of their
testimony. In Jagdish v. State of Madhya Pradesh, [1981] SCC
(Crl.) 676, this Court held that when the discrepancies were
comparatively of a minor character and did not go to the root of
the prosecution story, they need not be given undue importance.
Mere congruity or consistency is not the sole test of truth in the
depositions. This Court again in State of Rajasthan v, Kalki &
Anr., [1981] 2 SCC 752 held that in the depositions of witnesses
there are always normal discrepancy, however, honest and
truthful they may be. Such discrepancies are due to normal errors
of observation, normal errors of memory due to lapse of time,
due to mental disposition such as shock and horror at the time of
occurrence, and the like. Material discrepancies are those which
are not normal, and not expected of a normal person.
8. Referring to and relying upon the earlier judgments of this
Court in State of U.P. v, M.K. Anthony, AIR (1985) SC 48,
Tehsildar Singh and Anr. v State of U.P., AIR (1959) SC 1012;
Appabhai and Anr. v. State of Gujarat, JT (1988) 1 SC 249;
Rami alias Rameshwar v. State of Madhya Pradesh, JT (1999)
7 SC 247 and Bhura alias Sajjan Kumar v. State of Madhya
Pradesh, JT (1999) 7 SC 247, this Court in a recent case Leela
Ham v. State of Haryana and Anr., JT(1999) 8 SC 274 held:
“There are bound to be some discrepancies between
the narrations of different witnesses when they speak
on details, and unless the contradictions are of a
material dimension, the same should not be used to
jettison the evidence in its entirety. Incidentally,
corroboration of evidence with mathematical niceties
cannot be expected in criminal cases. Minor
embellishment, there may be, but variations by reason
therefore should not render the evidence of eye
witnesses unbelievable. Trivial discrepancies ought
not to obliterate an otherwise acceptable
evidence………..
The Court shall have to bear in mind that different
witnesses react differently under different situations :
whereas some become speechless, some start wailing
while some others run away from the scene and yet
there are some who may come forward with courage,
conviction and belief that the wrong should be
remedied. As a matter of fact it depends upon
individuals and individuals. There cannot be any set
pattern or uniform rule of human reaction and toSignature Not Verified
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discard a piece of evidence on the ground of his
reaction not falling within a set pattern is
unproductive and a pedantic exercise.”
25. In view of the law propounded in the aforesaid judgments we are of
the view that the learned trial Court has rightly appreciated and relief upon
the testimony of the witness Buddhaji (PW-12) with regard to the fact that
he witnessed the appellants running away from the spot armed with
weapons after commission of the crime.
26. Apart from the testimony of Buddhaji (PW-12), learned trial Court
has also placed reliance upon the following circumstances in establishing
the complicity of the appellants in the commission of offence of murder:-
(i) Appellants were having animosity with the deceased and
members of his family as the way to their lands were blocked
by father of the deceased i.e. Ganesh (PW-5) and the deceased
being influential person having interference in politics and also
had muscle power.
(ii) Appellants were seen running from the spot with their arms
after commission of the offence
(iii) Within four days of the commission of offence blood
stained clothes and weapons of offence were seized at their
instance.
27. Before dealing with the circumstantial evidence it is apposite to
reiterate the legal position with regard to the circumstantial evidence. The
five golden principles, otherwise known as the ‘Panchsheel’ with regard to
proof of a case based on circumstantial evidence which have been stated by
the Apex Court in the case of Sharad Birdhichand Sarda v. State of
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Maharashtra, AIR 1984 SC 1622 are as follows:
(i) the circumstances from which the conclusion of guilt is to be
drawn should be fully established, as distinguished from ‘may
be’ established;
(ii) 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;
(iii) the circumstances should be of a conclusive nature and
tendency;
(iv) they should exclude every possible hypothesis except the
one to be proved; and
(v) 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.
28. In Aftab Ahmed Ansari vs. State of Uttranchal, AIR 2010 SC 773
equivalent to 2010 (2) SCC 583 the Apex Court has considered about the
mode and manner as well as the approach to be adopted while dealing with
a case of circumstantial evidence. The relevant part whereof runs as under :
“In dealing with circumstantial evidence, there is always a
danger that conjecture or suspicion lingering on mind may take
place of proof. Suspicion howsoever strong cannot be allowed to
take place of proof and, therefore, the Court has to judge
watchfully and ensure that the conjectures and suspicions do not
take place of legal proof. However, it is no derogation of
evidence to say that it is circumstantial. Human agency may be
faulty in expressing picturization of actual incident but the
circumstances cannot fail. Therefore, many a times, it is aptly
said that “men may tell lies, but circumstances do not”. In cases
where evidence is of a circumstantial nature, the circumstances
from which the conclusion of guilt is to be drawn should, in the
first instance, be fully established. Each fact must be proved
individually and only thereafter the Court should consider the
total cumulative effect of all the proved facts, each one of which
reinforces the conclusion of the guilt. If the combined effect ofSignature Not Verified
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all the facts taken together is conclusive in establishing the guilt
of the accused, the conviction would be justified even though it
may be that one or more of these facts, by itself/themselves,
is/are not decisive. ……..
Although there should be no missing links in the case, yet it is
not essential that every one of the links must appear on the
surface of the evidence adduced and some of these links may
have to be inferred from the proved facts. In drawing these
inferences or presumptions, the Court must have regard to the
common course of natural events, and to human conduct and
their relations to the facts of the particular case.”
29. The evidence adduced by the prosecution has to be appreciated in the
light of the aforesaid legal principles so as to examine as to whether the
findings arrived at by the learned trial court with regard to proof of the
circumstances as well as the fact that the complete chain of circumstances is
established exclusively pointing towards the guilt of the accused are in
accordance with evidence.
Circumstance No.1Motive for commission of Murder:-
30. It is proved from the statements of the prosecution witness Jitendra
Verma (PW-8), Jayram (PW-10) the then Patwari of Patwari Halka no.29
and defence witnesses Rajendra Singh (DW-1) and Omprakash (DW-2)
previous animosity between the members of the family of the deceased
Laxmi Narayan and appellants has been well established. There is ample
evidence to prove that before the date of incident father of the deceased
Ganesh (PW-5) has blocked the way to the fields by way of thorns and
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20 Cr.A.No.154 of 2003
cutting down trees and dumping them on the way and illegally occupied the
way which gave rise to filing of complaint Ex.P-11 to SDO, Depalpur.
Jitendra Verma (PW-8) was deputed for spot inspection by SDO, Depalpur
and he reached there and summoned Ganesh (PW-5) along with
neighbouring farmers and by mutual consent the way which was blocked
was removed and in this regard Panchnama Ex.P-15 was prepared which is
signed by Panch witnesses.
Circumstance no.2:-
31. As far as the circumstance which relates to witnessing the appellants
running away from the spot with their arms after commission of offence has
already been dealt with as mentioned hereinabove.
Circumstance N0 3:-
32. The investigating officer R.C.Rajput (PW-14) who has arrested the
appellants, interrogated them in custody and recorded their disclosure
statements Ex.P-27 to Ex.P-33 and also recovered weapons at the instance
of the appellants and prepared Seizure memo Ex.P-32 to Ex.P-34 has
proved the above by way of his evidence. The appellants could not establish
anything which can belie the statement of R.C.Rajput(PW-14) as the
investigating officer was not having any axe to grind against the appellants
in preparing false case against them. The trial Court relying upon the
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21 Cr.A.No.154 of 2003
judgments in the case of Jagdish Vs. State of M.P. 1981 Suppl.20, State
of Rajasthan Vs. Kalki (1981) 2 SCC 752 has aptly repelled the
contentions raised on behalf of the appellants for treating the prosecution
evidence as not reliable. It is also not disputed that testimony of the police
officers cannot be suspected unless it bears material infirmities. This point
has been clarified by the Apex Court in catena of judgments which needs no
reiteration.
33. During cross examination Omprakash (DW-2) has stated that
complaint Ex.P-11 was got typed by Ramchandra and before lodging the
aforesaid complaint he has requested Ganesh (PW-5) and the deceased to
clear the way. He has also stated in the cross examination that Peeraji,
father of the appellant Ajay Singh, Devisingh father of Heerasingh,
Sajansingh father of Pappu @ Shankar have their lands in Patwari Halka
no.29, where the way to the lands was blocked by Ganesh (PW-5), father of
the deceased. Rajendra Singh (DW-1) has also stated in cross examination
that in Patwari Halka No.29 father of appellant Radheshyam and
Bahadursingh also had their lands. In para 35 of the impugned judgment
learned trial Court has elaborately dealt with the circumstance of existing
previous animosity amongst the family members of the deceased and family
members of the appellants. The conclusion drawn is based on proper
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22 Cr.A.No.154 of 2003
appreciation of evidence which cannot besaid to be baseless and faulty.
34. It has been well established by the testimony of the investigating
officer R.C.Rajput (PW-14) that he has seized the blood stained clothes and
blood stained arms from the appellants and also sent those arms for
answering query to Dr. Anchal Kumar Silawat (PW-7). All these
incriminating articles i.e blood stained clothes seized from the appellants
and the blood stained arms were sent to FSL for chemical examination and
report Ex.P-53 and Serologist’s report Ex.P-56 were obtained. Item nos.15
to 17, 20, 21, 25 to 28 30, 31, 34 to 37 have been found with human blood.
Presence of human blood on Articles 13,14,18,19, 22 to 24, 29, 32, 33 and
38 could not be ascertained as samples were disintegrated.
35. Learned defence counsel relying upon the judgment of the Apex
Court in the case of Kansa Behera Vs. State of Orissa AIR 1987 SC 1507
has raised contentions that Serologist’s report without matching of blood
group can is of no consequence to prove the prosecution case, but the
learned trial Court relying upon the judgment in the case of State of
Rajasthan Vs. Tejaram and others (1999) 3 SCC 507 and para 5 of the
judgment in the case of Keshavlal Vs. State of M.P. 2003(1) JLJ 43 has
concluded that mere non ascertainment of blood group cannot be a ground
to discard the prosecution case wherein chemical analysis, human blood has
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23 Cr.A.No.154 of 2003
been found on the weapons of offence and clothes seized from the
appellants. The finding is impregnable in the teeth of fact that pharsi seized
from the appellant Ajay Article G, sword Article H seized from the
appellant Heerasingh human blood was found. Similarly, Pant and T-Shirt
Article L1 and L2 seized from Omprakash, Pant and Shirt M1 and M2
seized from Heerasingh, Pant and Shirt N-1 and N-2 seized from
Radheshyam, Pant and Shirt P-1 and P-2 seized from Shankar and Pant
Article R1 seized from Ajay, been found with human blood and no
explanation has been offered by the appellants for the same.
36. As far as contention with regard to the non-confronting of seized
weapons and blood stained clothes of the appellants to the seizure witnesses
is concerned, it is of no consequence as appellants themselves have not
taken any steps or raised any grievance in that regard before the learned
trial Court at the time of trial. Even otherwise, mere non confrontation of
the aforesaid articles and clothes will not vitiate the trial. However, the
appellants have been adversely affected by non confrontation of the
aforesaid articles and clothes has also not been established. In such
circumstances, the contention raised in this regard has no force and is
hereby rejected.
37. Thus, all the circumstances as mentioned hereinabove relied upon by
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the learned trial Court to establish the complicity of the appellants with the
commission of crime in the instant case are well proved by way of evidence
available on record. Appellants have failed to point out the factual or legal
error in the impugned judgment by which they have been held guilty for the
offences under Sections 148, 302/149 of IPC, Section 25(1)(b) and 27 of
the Arms Act and the sentence imposed on the appellants is also not
disproportionate, therefore this part of the impugned judgment cannot be
interfered in this appeal.
38. We are of the considered view that prosecution has established
beyond reasonable doubt that appellants armed with weapons formed
unlawful assembly and in furtherance of common object of the assembly
committed murder of the deceased.
39. Resultantly this appeal being devoid of merits, deserves to be and is
hereby accordingly dismissed.
40. The appellants are on bail. Their bail bond and personal bond stand
cancelled. They will surrender before the trial Court within 15 days from
the date of judgment by this Court for serving out their remaining part of
jail sentence, failing which learned trial Court will take coercive steps by
way of issuing arrest warrant to secure their presence for serving out jail
sentence.
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41. Record of Learned trial Court be remitted back forthwith along with
copy of the judgment by this court for compliance and necessary action.
Certified copy as per rules.
(VIVEK RUSIA) (BINOD KUMAR DWIVEDI)
JUDGE JUDGE
RJ
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