Madhya Pradesh High Court
Sunil Tiwari vs The State Of Madhya Pradesh on 4 September, 2024
Author: G.S. Ahluwalia
Bench: G. S. Ahluwalia, Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:44012
1 Cr.A. Nos.2025/2009 and 2050/2009
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
ON THE 04th OF SEPTEMBER, 2024
CRIMINAL APPEAL No. 2025 of 2009
SUNIL TIWARI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
None for the appellants.
Shri Akshay Namdeo - Government Advocate for the respondent / State.
Shri Abhay Gupta - Advocate for the complainant.
WITH
CRIMINAL APPEAL No. 2050 of 2009
MUKESH TIWARI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
None for the appellant.
Shri Akshay Namdeo - Government Advocate for the respondent / State.
Reserved on : 22/08/2024
Pronounced on : 04th/09/2024
JUDGMENT
Per G.S. Ahluwalia J.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
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2 Cr.A. Nos.2025/2009 and 2050/2009
By this Common Judgment, Cr.A. No. 2025 of 2009 filed by Sunil
Tiwari and DeepakTiwari and Cr.A. No. 2050 of 2009 filed by Mukesh
Tiwari shall be decided.
2. The present appeals have been filed under Section 374(2) of
Cr.P.C. against the judgment and sentence dated 13-10-2009 passed by 2nd
Addl. Judge to the Court of Addl. Sessions Judge, Katni in S.T. No.
42/2008.
3. It is not out of place to mention that since, co-accused Bunty @
Shailendra @ Guddu son of Bhagwandas Tiwari was absconding,
therefore, total 8 accused persons, namely Sunil Tiwari, Deepak Tiwari,
Mukesh Tiwari, Shrichand Kori, Sunil Vishwakarma, Rakesh Choudhary,
Bhawani Kant Dubey and Pappu @ Dharmendra Tiwari were tried for
offence under Sections 120B, 364 read with Section 120B, 365 read with
Section 120B, 302 read with Section 120B and 201 read with Section
120B of IPC. Rakesh Choudhary and Mukesh Tiwari were also tried for
offence under Section 25/27 of Arms Act.
4. Co-accused Bunty @ Shailendra @ Guddu was tried at a later stage
and has been convicted by judgment and sentence dated 27-1-2014 passed
by 1st Addl. Sessions Judge, Katni in S.T. No. 42/2008. The co-accused
has filed Cr.A. No.778 of 2014. A separate trial was conducted and
evidences were recorded separately therefore in the light of judgment
passed by Supreme Court in the case of A.T. Mydeen and anr. Vs. The
Assistant Commissioner, Customs Department in Criminal Appeal
No.1306/2021 on 29-10-2021 the appeal filed by Bunty @ Shailendra @
Guddu has been heard analogously, but shall be decided by a separate
judgment.
5. By impugned judgment dated 13-10-2009, the Trial Court
acquitted Pappu @ Dharmendra Tiwari, whereas convicted Sunil Tiwari,
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MISHRA
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3 Cr.A. Nos.2025/2009 and 2050/2009
Deepak Tiwari, Mukesh Tiwari, Shrichand Kori, Sunil Vishwakarma,
Rakesh Choudhary, Bhawani Kant Dubey. The convicted accused persons
filed following Cr.A.s :
S.No. Cr.A. No. Accused Remark
1 2025 of 2009 1. Sunil Tiwari
2. Deepak Tiwari
2 2050 of 2009 1. Mukesh Tiwari
3 2155 of 2009 1. Shrichand Kori Withdrawn on 28-09-
2022
4 2373 of 2009 1. Sunil Withdrawn on 28-09-
Vishwakarma 2022
2. Rakesh
Choudhary
5 285 of 2010 1. Bhawani Kant Withdrawn on 28-09-
Dubey 2022
6. The Appellant Sunil Tiwari has been convicted and sentenced for
the following offences :
S.No. Under Section Sentence
1 120 B of IPC 7 years R.I. and fine of Rs. 500/- in default
3 months R.I.
2 364/120B of IPC 10 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
3 365/120B of IPC 7 years R.I. and fine of Rs. 500/- in default
3 months R.I.
4 302/120B of IPC Life Imprisonment
5 201/120B of IPC 3 years R.I. and fine of Rs. 500/- in default
3 month R.I.
All the sentences shall run concurrently.
7. The Appellant Deepak Tiwari has been convicted and sentenced
for the following offences :
S.No. Under Section Sentence
1 120 B of IPC 7 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
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Signed by: ARUN KUMAR
MISHRA
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4 Cr.A. Nos.2025/2009 and 2050/2009
2 364/120B of IPC 10 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
3 365/120B of IPC 7 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
4 302/120B of IPC Life Imprisonment
5 201/120B of IPC 3 years R.I. and fine of Rs. 500/- in
default 3 month R.I.
All the sentences shall run concurrently.
8. The Appellant Mukesh Tiwari has been convicted and sentenced
for the following offences :
S.No. Under Section Sentence
1 120 B of IPC 7 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
2 364/120B of IPC 10 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
3 365/120B of IPC 7 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
4 302/120B of IPC Life Imprisonment
5 201/120B of IPC 3 years R.I. and fine of Rs. 500/- in
default 3 month R.I.
6 25/27 Arms Act 3 years R.I. and fine of Rs. 500/- in
default 3 months R.I.
All the sentences shall run concurrently.
9. According to the prosecution story, the complainant Sonu Ben,
lodged an FIR on 17-11-2007, alleging that at about 9:00 A.M., he was
sitting with Sagar Singh and Gaurav Singh and was having a cup of Tea in
Gupta Hotel situated in Shivhare Complex. At that time, one black
coloured Bolero Jeep bearing registration no. MP 21 E 0855 which was
being driven by Shrichand Kori, came there and stopped ahead of Gupta
Hotel. Mukesh Tiwari, Bhawanikant Dubey, Rakesh Choudhary, Sunil
Vishwakarma deboarded the jeep. Mukesh Tiwari caught hold of collar of
Sagar Singh and scolded that he is showing off too much and pointed a
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MISHRA
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5 Cr.A. Nos.2025/2009 and 2050/2009
country made pistol on his temporal region. Bhawani also took out a
country made pistol and pointed towards the abdominal region of Sagar
Singh whereas Rakesh Choudhary pointed a knife towards Sagar Singh.
Sunil Vishwakarma forcibly made Sagar Singh to sit in Bolero Jeep and it
was alleged that the accused persons abducted Sagar Singh and went
towards N.K.J. The FIR for offence under Sections 365, 368, 34 of IPC
was registered.
10. C.L. Patel, Sub-Inspector went to spot along with complainant
Sonu Ben. After 10-15 minutes, the Town Inspector also reached there.
Spot map was prepared on the instructions of the witnesses. The
statements of witnesses were recorded. On 21-11-2007, Shrichand Kori
was arrested along with Bolero Jeep bearing registration No. MP 21 E
0855. On 27-11-2007, an information was received that Rakesh
Choudhary has been arrested by Umaria Police Station accordingly he was
brought to Katni. On 27-11-2007, Sunil Vishwakarma was also arrested
and on his disclosure, the dead body of Sagar Singh was recovered. The
dead body was got identified from his father. The photographs of the dead
body were taken. The blood stained earth as well as plain earth, three
pieces of rope, one blood stained Baniyan were seized from the spot. The
dead body was sent for post mortem. On 3-12-07 Rakesh Choudhary was
arrested and on 8-12-2007 the appellant Mukesh Tiwari and Bhawani Kant
Dubey were arrested. Deepak Tiwari was arrested on 6-1-2008. Sunil
Tiwari was arrested on 21-11-2007. The D.N.A. test of the dead body was
got done. The seized articles were sent for forensic examination. The
police after completing the investigation filed charge sheet for offence
under Sections 365, 368, 364, 302, 201, 120B, 34 of IPC whereas the
investigation against absconding co-accused Bunty @ Shailendra @
Guddu was kept pending under Section 173(8) of Cr.P.C.
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Signed by: ARUN KUMAR
MISHRA
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6 Cr.A. Nos.2025/2009 and 2050/2009
11. The Trial Court by order dated 1-5-2008, framed charges under
Sections 120B, 364 read with Section 120B, 365 read with Section 120B,
302 read with Section 120B, 201 read with Section 120B of IPC against
Appellants Sunil Tiwari, Deepak Tiwari, Mukesh Tiwari as well as
Shrichand Kori, Sunil Vishwakarma, Pappu @ Dharmendra, Bhawani
Kant Dubey, Rakesh Choudhary and also for offence under Section 25/27
of Arms Act against Rakesh Choudhary and Mukesh Tiwari.
12. The Appellants abjured their guilt and pleaded not guilty.
13. The prosecution examined Thakur Guman Singh (P.W.1), Sonu
Ben (P.W.2), Awadhesh Tiwari (P.W.3), Surendra Kumar Jharia (P.W.4),
Gaurav Singh (P.W.5), Sandeep Yadav (P.W.6), P. Kuzoor (P.W.7),
Suresh Jain (P.W.8), C.L. Patel (P.W.9), Swami Prasad (P.W.10),
Abhishekh (P.W.11), Tilak Singh (P.W.12), Ateen Tiwari (P.W.13),
Manoj (P.W.14), Sardar Singh (P.W.15), Amit (P.W.16), Akhilesh Tiwari
(P.W.17), Bundeldhar Dwivedi (P.W.18), Amritlal (P.W.19). Mukesh
Mishra (P.W.20), A.V. Singh (P.W.21), Dr. B.B. Singh (P.W.22), Ram
Kumar Tiwari (P.W.23), Vinod Kumar Dwivedi (P.W.24), Shrikant
Gattani (P.W.25), Umesh Dubey (P.W.26), Priyank Agrawal (P.W.27),
Harkesh Choudhary (P.W.28), Rajesh Raghuvanshi (P.W.29), Vinod
Singh Baghel (P.W.30), Sunny Khampariya (P.W.31), Saidatt Bohare
(P.W.31 (this witness has also been numbered as P.W.31), Kumar Iskandh
(P.W.32), Kartik Ram Krishna Aiyyar (P.W.33), Amrish Tiwari (P.W. 34),
and Dr. Anil Kumar (P.W. 35).
14. The appellants examined Sarita Choudhary (D.W.1) and Narendra
Jaiswal (D.W.2) in their defence.
15. The Trial Court by impugned Judgment and Sentence acquitted
Pappu @ Dharmendra whereas convicted and sentenced Sunil Tiwari,
Mukesh Tiwari, Deepak Tiwari, Shrichand Kori, Sunil Vishwakarma,
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MISHRA
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7 Cr.A. Nos.2025/2009 and 2050/2009
Rakesh Choudhary, and Bhawani Kant Dubey for the offences as
mentioned above.
16. As already pointed out, Shricchand Kori, Sunil Vishwakarma,
Rakesh Choudhary and Bhawani Kant Dubey have already withdrawn
their appeals.
17. Therefore, by this judgment, the appeals filed by Sunil Tiwari,
Deepak Tiwari and Mukesh Tiwari shall be considered.
18. In the present case, the Counsel for the Appellants did not appear,
therefore, this Court by order dated 21-3-2022, appointed multiple lawyers
as amicus curiae. However, on 22-8-2024, when this case was taken up
for final hearing, even the amicus curiae did not appear, therefore, in the
light of Judgment passed by Supreme Court in the case of Suryabaksh
Singh Vs. State of U.P. reported in 2014(14) SCC 222, this Court itself
went through the record and heard the learned Counsel for the State.
19. Considered the submissions made by Counsel for State and perused
the record.
20. As per the prosecution story, on 17-11-2007 the deceased Sagar
Singh was abducted by Mukesh Tiwari, Bhawani Kant Dubey, Sunil
Vishwakarma, Rakesh Choudhary in a Bolero Jeep, whereas Shrichand
Kori was the driver of Bolero Jeep. The dead body of Sagar Singh was
discovered on 27-11-2007 on the information given by Sunil Vishwakarma
and thereafter the accused persons were arrested and incriminating articles
were seized from them.
21. Thus, it is clear that Appellant Sunil Tiwari, Deepak Tiwari, and
Pappu @ Dharmendra (acquitted) were not named in the FIR which was
lodged on the allegations of abduction of Sagar Singh.
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MISHRA
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22. At the cost of repetition, it is mentioned that Shrichand Kori,
Bhawani Kant Dubey, Sunil Vishwakarma and Rakesh Choudhary who
were named in the FIR have already withdrawn their appeals.
23. Therefore, this Court would consider the allegations of abduction,
recovery of dead body of Sagar Singh and incriminating articles seized
from Appellants Sunil Tiwari, Mukesh Tiwari and Deepak Tiwari.
24. Thus, this case is based on circumstantial evidence of last seen
together, recovery of incriminating article from Mukesh Tiwari and
conspiracy against Sunil Tiwari and Deepak Tiwari.
25. Before considering the allegations against the appellants, this Court
would like to consider the law governing the field of circumstantial
evidence.
26. The Supreme Court in the case of Munish Mubar v. State of
Haryana reported in (2012) 10 SCC 464 has held as under:-
“28. Undoubtedly, in a case of circumstantial evidence, all
the circumstances must be fully established and all the facts
so established, must be consistent with the hypothesis
regarding the guilt of the accused. The circumstances so
established should exclude every other possible hypothesis
except the one sought to be proved. The circumstances
must be conclusive in nature. The circumstantial evidence
is a close companion of factual matrix, creating a fine
network through which there can be no escape for the
accused, primarily because the said facts, when taken as a
whole, do not permit us to arrive at any other inference but
one indicating the guilt of the accused.”
27. The Supreme Court in the case of Sharad Birdhichand Sarda v.
State of Maharashtra reported in (1984) 4 SCC 116 has held as under:-
152. Before discussing the cases relied upon by the High
Court we would like to cite a few decisions on the nature,
character and essential proof required in a criminal case
which rests on circumstantial evidence alone. The most
fundamental and basic decision of this Court is HanumantSignature Not Verified
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NEUTRAL CITATION NO. 2024:MPHC-JBP:440129 Cr.A. Nos.2025/2009 and 2050/2009
v. State of Madhya Pradesh. This case has been uniformly
followed and applied by this Court in a large number of
later decisions up-to-date, for instance, the cases of Tufail
(Alias) Simmi v. State of Uttar Pradesh and Ramgopal v.
State of Maharashtra. It may be useful to extract what
Mahajan, J. has laid down in Hanumant case:
“It is well to remember that in cases where the 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, and all the facts so established
should be consistent only with the hypothesis of the guilt of
the accused. Again, the circumstances should be of a
conclusive nature and tendency and they should be such as
to exclude every hypothesis but the one proposed to be
proved. In other words, there must be a chain of evidence
so far complete as not to leave any reasonable ground for a
conclusion consistent with the innocence of the accused and
it must be such as to show that within all human probability
the act must have been done by the accused.”
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 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
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10 Cr.A. Nos.2025/2009 and 2050/2009
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.
154. These five golden principles, if we may say so,
constitute the panchsheel of the proof of a case based on
circumstantial evidence.
155. It may be interesting to note that as regards the mode
of proof in a criminal case depending on circumstantial
evidence, in the absence of a corpus delicti, the statement of
law as to proof of the same was laid down by Gresson, J.
(and concurred by 3 more Judges) in King v. Horry thus:
“Before he can be convicted, the fact of death should be
proved by such circumstances as render the commission of
the crime morally certain and leave no ground for
reasonable doubt: the circumstantial evidence should be so
cogent and compelling as to convince a jury that upon no
rational hypothesis other than murder can the facts be
accounted for.”
156. Lord Goddard slightly modified the expression
“morally certain” by “such circumstances as render the
commission of the crime certain”.
157. This indicates the cardinal principle of criminal
jurisprudence that a case can be said to be proved only
when there is certain and explicit evidence and no person
can be convicted on pure moral conviction. Horry case was
approved by this Court in Anant Chintaman Lagu v. State
of Bombay. Lagu case21 as also the principles enunciated
by this Court in Hanumant case have been uniformly and
consistently followed in all later decisions of this Court
without any single exception. To quote a few cases —
Tufail case, Ramgopal case, Chandrakant Nyalchand Seth
v. State of Bombay, Dharambir Singh v. State of Punjab.
There are a number of other cases where although
Hanumant case has not been expressly noticed but the same
principles have been expounded and reiterated, as in
Naseem Ahmed v. Delhi Administration, Mohan Lal
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Pangasa v. State of U.P., Shankarlal Gyarasilal Dixit v.
State of Maharashtra and M.G. Agarwal v. State of
Maharashtra — a five-Judge Bench decision.
28. The Supreme Court in the case of Padala Veera Reddy v. State of
A.P., reported in 1989 Supp (2) SCC 706 has held as under :
10. Before adverting to the arguments advanced by the
learned Counsel, we shall at the threshold point out that in
the present case there is no direct evidence to connect the
accused with the offence in question and the prosecution
rests its case solely on circumstantial evidence. This Court
in a series of decisions has consistently held that when a
case rests upon circumstantial evidence such evidence must
satisfy the following tests:
“(1) the circumstances from which an inference
of guilt is sought to be drawn, must be cogently and
firmly established;
(2) those circumstances should be of a definite
tendency unerringly pointing towards guilt of the
accused;
(3) the circumstances, taken cumulatively,
should form a chain so complete that there is no escape
from the conclusion that within all human probability
the crime was committed by the accused and none else;
and
(4) the circumstantial evidence in order to
sustain conviction must be complete and incapable of
explanation of any other hypothesis than that of the
guilt of the accused and such evidence should not only
be consistent with the guilt of the accused but should be
inconsistent with his innocence. (See Gambhir v. State of
Maharashtra.)”
11. See also Rama Nand v. State of Himachal Pradesh,
Prem Thakur v. State of Punjab, Earabhadrapa alias
Krishnappa v. State of Karnataka, Gian Singh v. State of
Punjab, Balwinder Singh v. State of Punjab.
29. The Supreme Court in the case of Balwinder Singh Vs. State of
Punjab reported in 1995 (Supp) 4 SCC 259 has held as under :
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4. In a case based on circumstantial evidence, it is now
well-settled that the circumstances from which the
conclusion of guilt is to be drawn should be fully proved
and those circumstances must be conclusive in nature to
connect the accused with the crime. All the links in the
chain of events must be established beyond a reasonable
doubt and the established circumstances should be
consistent only with the hypothesis of the guilt of the
accused and totally inconsistent with his innocence. In a
case based on circumstantial evidence, the court has to be
on its guard to avoid the danger of allowing suspicion to
take the place of legal proof and has to be watchful to avoid
the danger of being swayed by emotional considerations,
howsoever strong they may be, to take the place of proof. It
is in the context of the above-settled principles, that we
shall analyse the evidence led by the prosecution.
30. The Supreme Court in the case of Harishchandra Ladaku
Thange v. State of Maharashtra, reported in (2007) 11 SCC 436 has
held as under :
8. “9. Before analysing factual aspects it may be stated that
for a crime to be proved it is not necessary that the crime
must be seen to have been committed and must, in all
circumstances be proved by direct ocular evidence by
examining before the court those persons who had seen its
commission. The offence can be proved by circumstantial
evidence also. The principal fact or factum probandum may
be proved indirectly by means of certain inferences drawn
from factum probans, that is, the evidentiary facts. To put it
differently, circumstantial evidence is not direct to the point
in issue but consists of evidence of various other facts
which are so closely associated with the fact in issue that
taken together they form a chain of circumstances from
which the existence of the principal fact can be legally
inferred or presumed.
10. It has been consistently laid down by this Court that
where a case rests squarely on circumstantial evidence, the
inference of guilt can be justified only when all the
incriminating facts and circumstances are found to be
incompatible with the innocence of the accused or the guiltSignature Not Verified
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of any other person. (See Hukam Singh v. State of
Rajasthan, Eradu v. State of Hyderabad, Earabhadrappa v.
State of Karnataka, State of U.P. v. Sukhbasi, Balwinder
Singh v. State of Punjab and Ashok Kumar Chatterjee v.
State of M.P.) The circumstances from which an inference
as to the guilt of the accused is drawn have to be proved
beyond reasonable doubt and have to be shown to be
closely connected with the principal fact
sought to be inferred from those circumstances. In Bhagat
Ram v. State of Punjab it was laid down that where the case
depends upon the conclusion drawn from circumstances the
cumulative effect of the circumstances must be such as to
negative the innocence of the accused and bring home the
offences beyond any reasonable doubt.
11. We may also make a reference to a decision of this
Court in C. Chenga Reddy v. State of A.P. wherein it has
been observed thus : (SCC pp. 206-07, para 21)
„21. In a case based on circumstantial evidence, the settled
law is that the circumstances from which the conclusion of
guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover, all
the circumstances should be complete and there should be
no gap left in the chain of evidence. Further, the proved
circumstances must be consistent only with the hypothesis
of the guilt of the accused and totally inconsistent with his
innocence.‟
12. In Padala Veera Reddy v. State of A.P. it was laid down
that when a case rests upon circumstantial evidence, such
evidence must satisfy the following tests : (SCC pp. 710-11,
para 10)
„10. (1) the circumstances from which an inference of guilt
is sought to be drawn, must be cogently and firmly
established;
(2) those circumstances should be of a definite tendency
unerringly pointing towards guilt of the accused;
(3) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else; and
(4) the circumstantial evidence in order to sustain
conviction must be complete and incapable of explanation
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of any other hypothesis than that of guilt of the accused and
such evidence should not only be consistent with the guilt
of the accused but should be inconsistent with his
innocence.‟
13. In State of U.P. v. Ashok Kumar Srivastava it was
pointed out that great care must be taken in evaluating
circumstantial evidence and if the evidence relied on is
reasonably capable of two inferences, the one in favour of
the accused must be accepted. It was also pointed out that
the circumstances relied upon must be found to have been
fully established and the cumulative effect of all the facts so
established must be consistent only with the hypothesis of
guilt.
14. Sir Alfred Wills in his admirable book Wills‟
Circumstantial Evidence (Chapter VI) lays down the
following rules specially to be observed in the case of
circumstantial evidence : (1) the facts alleged as the basis of
any legal inference must be clearly proved and beyond
reasonable doubt connected with the factum probandum;
(2) the burden of proof is always on the party who asserts
the existence of any fact, which infers legal accountability;
(3) in all cases, whether of direct or circumstantial evidence
the best evidence must be adduced which the nature of the
case admits; (4) in order to justify the inference of guilt, the
inculpatory facts must be incompatible with the innocence
of the accused and incapable of explanation, upon any other
reasonable hypothesis than that of his guilt; and (5) if there
be any reasonable doubt of the guilt of the accused, he is
entitled as of right to be acquitted.
15. There is no doubt that conviction can be based solely on
circumstantial evidence but it should be tested on the
touchstone of law relating to circumstantial evidence laid
down by this Court as far back as in 1952.
16. In Hanumant Govind Nargundkar v. State of M.P. it
was observed thus : (AIR pp. 345-46, para 10)
„10. … It is well to remember that in cases where the
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, and all the facts so
established should be consistent only with the hypothesis of
the guilt of the accused. Again, the circumstances should be
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of a conclusive nature and tendency and they should be
such as to exclude every hypothesis but the one proposed to
be proved. In other words, there must be a chain of
evidence so far complete as not to leave any reasonable
ground for a conclusion consistent with the innocence of
the accused and it must be such as to show that within all
human probability the act must have been done by the
accused.‟
17. A reference may be made to a later decision in Sharad
Birdhichand Sarda v. State of Maharashtra. Therein, while
dealing with circumstantial evidence, it has been held that
the onus was on the prosecution to prove that the chain is
complete and the infirmity of lacuna in the prosecution
cannot be cured by a false defence or plea. The conditions
precedent in the words of this Court, before conviction
could be based on circumstantial evidence, must be fully
established. They are : (SCC p. 185, para 153)
(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.”
31. Thus, the evidence led by prosecution shall be considered in the
light of law laid down by Supreme Court.
32. Since, the allegations made against Mukesh Tiwari, Sunil Tiwari
and Deepak Tiwari are different, therefore, the case of every appellant
shall be considered separately.
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Appellant Mukesh Tiwari
Abduction of Sagar Singh
33. As already pointed out, the allegation of abduction is against
appellant Mukesh Tiwari.
34. Prosecution has examined Sonu Ben (P.W.2), Gaurav (P.W. 5),
Sandeep Yadav (P.W.6), and Abhishekh (P.W.11) to prove the allegation
of abduction.
35. Sonu Ben (P.W.2) is the complainant. According to this witness,
the incident of abduction took place at about 9:00 A.M. and F.I.R., Ex. P.5
was lodged at 9:30 A.M. This witness re-iterated the allegations which he
had made in the FIR, Ex. P.5. He further stated that immediately after the
incident, he rushed to the house of Sagar and informed his mother about
the incident, and thereafter came to Police Station to lodge the FIR. The
FIR, Ex. P.5 was lodged within 30 minutes and the distance of police
station from the place of incident was only 1 Km. Although this witness
was cross-examined in detail, but except few omissions and contradictions,
nothing substantial could be pointed out by the defence, so as to make the
evidence of this witness unreliable. In the FIR, the number of the Bolero
Jeep was specifically mentioned and the names of all the five accused
persons were also specifically mentioned. The prompt lodging of FIR
lends credit to the correctness of the allegations, but also rules out the
possibility of over-implication, exaggeration or deliberations. The
Supreme Court in the case of Krishnan and another Vs. State
Represented by Inspector of Police reported in (2003) 7 SCC 56 has
held as under :
17. The fact that the first information report was given
almost immediately, rules out any possibility of deliberation
to falsely implicate any person……………
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36. The Supreme Court in the case of State of U.P. Vs. Harban Sahai
reported in (1998) 6 SCC 50 has held as under :
13. PW 1‟s version regarding the occurrence gets a very
stable corroboration from the FIR which was lodged by him
within two hours of the occurrence. The High Court did not
entertain any doubt that the FIR was ante-dated or that there
was any delay in its lodgement. Even the defence did not
contend like that. In such a situation the prompt and early
reporting of the occurrence by PW 1 to the police with all
its vivid details gives us an assurance regarding truth of his
version.
37. The Supreme Court in the case of Satpal Singh Vs. State of
Haryana reported in (2010) 8 SCC 714 has held as under :
15. This Court has consistently highlighted the reasons,
objects and means of prompt lodging of FIR. Delay in
lodging FIR more often than not, results in embellishment
and exaggeration, which is a creature of an afterthought. A
delayed report not only gets bereft of the advantage of
spontaneity, the danger of the introduction of a coloured
version, an exaggerated account of the incident or a
concocted story as a result of deliberations and
consultations, also creeps in, casting a serious doubt on its
veracity. Thus, FIR is to be filed more promptly and if there
is any delay, the prosecution must furnish a satisfactory
explanation for the same for the reason that in case the
substratum of the evidence given by the
complainant/informant is found to be unreliable, the
prosecution case has to be rejected in its entirety. (Vide
State of A.P. v. M. Madhusudhan Rao.)
38. Furthermore, the evidence of Sonu Sen (P.W.2) finds corroboration
by evidence of Gaurav (P.W.5), Sandeep Yadav (P.W.6), and Abhishekh
(P.W.11).
39. Gaurav (P.W. 5) has stated that it was 9:00 to 9:15 A.M. He was
sitting along with Sagar Singh, Sonu Ben (P.W.2) and Roop Chand by the
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side of Gupta Hotel. At that time, one bolero jeep of black colour came
and stopped by the side of the road. After about 10 minutes, it went
towards Neeraj Talkies and turned around and stopped near the shop of
one Ajju Garg. Mukesh Tiwari (appellant), Bhawani Kant Dubey and two
more persons who were not known to this witness, deboarded from the
jeep. Mukesh and Bhawani Kant Dubey were having country made pistol.
They pointed towards Sagar Singh. Another person pointed knife. Fourth
person caught hold of Sagar and was also having one white coloured bomb
in his hand. He forcibly took away Sagar Singh and compelled him to sit
in the bolero jeep. However, the jeep did not start, therefore two persons
pushed the jeep. Thereafter the jeep went towards N.K.J. He informed
Viru Tiwari, Pappu Dubey on phone about the incident. This witness also
informed Guman Singh (P.W.1), the father of Sagar Singh on mobile. It
was alleged that few days back, some dispute took place with Sunil Tiwari
and therefore, Sagar Singh was abducted. In cross-examination, he
admitted that his police statement under Section 161 of Cr.P.C. was
recorded on 5-12-2007. However, the delay in recording of police
statement would not make much difference, because the name of this
witness is mentioned in the FIR, Ex. P.5. Thus, the presence of this
witness on the spot at the time of abduction is not doubtful. This witness
also stated that immediately after the incident of abduction, he went to the
house of appellant Mukesh Tiwari to find out the whereabouts of abductee
Sagar, but the appellant was not in his house. This witness has specifically
stated that Mukesh Tiwari was armed with country made pistol and had
abducted the deceased Sagar. Nothing material could be elicited from his
cross-examination, which may make his evidence unreliable.
40. Sandeep Yadav (P.W.6) is another witness of abduction. He has
stated that Sunil Tiwari, Mukesh Tiwari, Sunil Vishwakarma, Bhawani
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Dubey are known to him, whereas the other accused persons are not
known to him. The deceased Sagar was also known to this witness. He has
stated that on 17-11-2007, at about 9 A.M. he was standing near Neeraj
Talkies. At that time one black coloured bolero jeep came there and
Mukesh Tiwari (appellant) and three others came down and Mukesh
Tiwari pointed a country made pistol towards Sagar Singh, whereas
another person also pointed a country made pistol. One person pointed
knife and Sagar Singh was dragged towards the jeep and thereafter they
went towards N.K.J. Lot of persons had gathered there. About one month
prior to the date of incident, he and Sagar were going towards Gayatri
Nagar. Sagar Singh was stopped by Sunil Tiwari near Durga Temple.
Sunil Tiwari had abused Sagar Singh and had also extended a threat that
he would kill him. Thereafter they came to Gayatri Nagar. 7-8 days prior
to incident of abduction, Sunil Tiwari had suggested this witness that he
should leave the company of Sagar otherwise, he too would be killed. At
the time of incident of abduction, he was standing near Neeraj Talkies and
Abhishekh (P.W.11) was also standing there. Co-accused Dharmendra was
talking to somebody on mobile that Sagar is sitting in Gupta Hotel. 4-5
minutes thereafter, one black coloured bolero jeep came and stopped in
front of the shop of Ajju Garg and one Bhaijaan. Co-accused Dharmendra
Tiwari was also identified by this witness in the Court. After 8-10 days of
abduction, this witness came to know that one Sunil Vishwakarma has
been arrested and therefore, this witness went to police station, where he
was informed by police about the arrest of Sunil Vishwakarma. Sunil
Vishwakarma made a statement to the police and also made a statement
about the location of the dead body. On the same day, the police took
Sunil Vishwakarma to forest area. Sunil Vishwakarma pointed out the tree
with which the deceased Sagar was tied. The memorandum of Sunil
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Vishwakarma was recorded. Blood was lying near the tree which was
pointed by Sunil Vishwakarma. The dead body of Sagar Singh was lying
at some distance. The spot map, Ex. P.12 was prepared. Baniyan and
pieces of rope were seized. The lash panchnama Ex. P.13 was prepared.
The co-accused Sunil Vishwakarma was arrested vide arrest memo Ex.
P.14. In cross-examination, this witness stated that he had narrated the
factum of enmity between Sunil Tiwari and Sagar Singh to the police, but
could not explain as to why that fact was not mentioned in his police
statement, Ex. D.5. He also could not explain that why the fact that Sunil
Tiwari had also threatened this witness is not mentioned in his police
statement, Ex. D.5. In cross-examination by the appellant Mukesh Tiwari,
he stated that he had informed the police that he was standing near the
curve situated near Neeraj Talkies, but could not explain as to why the fact
that he was standing near the curve was not mentioned in his police
statement, Ex. D.5. He also admitted that in his police statement, Ex. D.5
he had not informed the police that bolero jeep had taken a turn from the
curve situated near Neeraj Talkies. He also admitted that he had not
informed the police that Mukesh Tiwari had pointed the country made
pistol. He further stated that he resides near the house of Guman Singh
(P.W.1) and the house of Guman Singh is approximately ½ Km away from
the place of incident.
41. Abhishekh (P.W. 11) is a chance witness who had gone to the
barber shop and since, there was a rush in the shop, therefore, this witness
came out of the shop and was standing outside. He saw that one vehicle
slowed down near the Gupta Hotel, and after taking turn from Neeraj
Talkies, stopped near the shop of Ajju Garg and Bhaijaan. The Appellant
Mukesh Tiwari and other accused persons deboarded from the vehicle and
forcibly took away Sagar with them. In cross examination, he stated that
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he stayed back for 15-20 minutes but did not give any information to
police. Thereafter he went in search of Sagar to village Jhalwara and
Hirwara. On 19-11-2007, he found that police personnel were
investigating the matter therefore, he informed the police personnel that he
too has witnessed the incident. Guman Singh (P.W.1) did not meet him on
17-18. He further stated that prior to incident, hot talk had taken place
between Sunil Tiwari and Sagar but could not explain as to why said fact
is not mentioned in his police statement, Ex. D.7. He further stated that
prior to abduction, Sunil Tiwari had also assaulted him, but fairly
conceded that no FIR was lodged.
42. In view of the evidence of Sonu Ben (P.W.2), Gaurav (P.W.5),
Sandeep Yadav (P.W.6) and Abhishekh (P.W.11), coupled with the fact
that the FIR, Ex.P.5 thereby informing the police about the abduction of
Sagar was lodged within a period of 30 minutes of the abduction, this
Court is of the considered opinion, that the prosecution has proved the
allegation of abduction of Sagar by Mukesh Tiwari and other co-accused
persons, namely Shrichand Kori, Sunil Vishwakarma, Bhawanikant Dubey
and Rakesh Choudhary. Thus, it is held that the deceased Sagar was
abducted by Mukesh Tiwari, Shrichand Kori, Sunil Vishwakarma,
Bhawani kant Dubey and Rakesh Choudhary on 17-11-2007.
Last Seen Together
43. The Supreme Court in the case of Ashok v. State of Maharashtra,
reported in (2015) 4 SCC 393 has held as under :
8. The “last seen together” theory has been elucidated by
this Court in Trimukh Maroti Kirkan v. State of
Maharashtra, in the following words: (SCC p. 694, para
22)
“22. Where an accused is alleged to have committed the
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evidence to show that shortly before the commission of
crime they were seen together or the offence takes place in
the dwelling home where the husband also normally
resided, it has been consistently held that if the accused
does not offer any explanation how the wife received
injuries or offers an explanation which is found to be false,
it is a strong circumstance which indicates that he is
responsible for commission of the crime. Thus, the doctrine
of last seen together shifts the burden of proof onto the
accused, requiring him to explain how the incident had
occurred. Failure on the part of the accused to furnish any
explanation in this regard, would give rise to a very strong
presumption against him.**”
9. In Ram Gulam Chaudhary v. State of Bihar, the accused
after brutally assaulting a boy carried him away and
thereafter the boy was not seen alive nor was his body
found. The accused, however, offered no explanation as to
what they did after they took away the boy. It was held that
for absence of any explanation from the side of the accused
about the boy, there was every justification for drawing an
inference that they had murdered the boy.
10. In Nika Ram v. State of H.P., it was observed that the
fact that the accused alone was with his wife in the house
when she was murdered with a “khukhri” and the fact that
the relations of the accused with her were strained would, in
the absence of any cogent explanation by him, point to his
guilt.
11. The latest judgment on the point is Kanhaiya Lal v.
State of Rajasthan. In this case this Court has held that the
circumstance of last seen together does not by itself and
necessarily lead to the inference that it was the accused who
committed the crime. There must be something more
establishing the connectivity between the accused and the
crime. Mere non-explanation on the part of the accused by
itself cannot lead to the proof of guilt against the accused.
12. From the study of abovestated judgments and many
others delivered by this Court over a period of years, the
rule can be summarised as that the initial burden of proof is
on the prosecution to bring sufficient evidence pointing
towards guilt of the accused. However, in case of last seen
together, the prosecution is exempted to prove exactSignature Not Verified
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happening of the incident as the accused himself would
have special knowledge of the incident and thus, would
have burden of proof as per Section 106 of the Evidence
Act. Therefore, last seen together itself is not a conclusive
proof but along with other circumstances surrounding the
incident, like relations between the accused and the
deceased, enmity between them, previous history of
hostility, recovery of weapon from the accused, etc. non-
explanation of death of the deceased, may lead to a
presumption of guilt.
13. Here another judgment in Harivadan Babubhai Patel v.
State of Gujarat, would be relevant. In this case, this Court
found that the time-gap between the death of the deceased
and the time when he was last seen with the accused may
also be relevant.
44. The Supreme Court in the case of Digamber Vaishnav v. State of
Chhattisgarh reported in (2019) 4 SCC 522 has held as under :
40. The prosecution has relied upon the evidence of PW 8
to show that the accused and victims were last seen
together. It is settled that the circumstance of last seen
together cannot by itself form the basis of holding accused
guilty of offence. If there is any credible evidence that just
before or immediately prior to the death of the victims, they
were last seen along with the accused at or near about the
place of occurrence, the needle of suspicion would certainly
point to the accused being the culprits and this would be
one of the strong factors or circumstances inculpating them
with the alleged crime purported on the victims. However,
if the last seen evidence does not inspire the confidence or
is not trustworthy, there can be no conviction. To constitute
the last seen together factor as an incriminating
circumstance, there must be close proximity between the
time of seeing and recovery of dead body.
41. In Arjun Marik v. State of Bihar, it has been held as
under: (SCC p. 385, para 31)
“31. Thus the evidence that the appellant had gone to
Sitaram in the evening of 19-7-1985 and had stayed in the
night at the house of deceased Sitaram is very shaky and
inconclusive. Even if it is accepted that they were there itSignature Not Verified
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would at best amount to be the evidence of the appellants
having been seen last together with the deceased. But it is
settled law that the only circumstance of last seen will not
complete the chain of circumstances to record the finding
that it is consistent only with the hypothesis of the guilt of
the accused and, therefore, no conviction on that basis alone
can be founded.”
42. In Kanhaiya Lal v. State of Rajasthan, the Court has
reiterated that the last seen together does not by itself lead
to the inference that it was the accused who committed the
crime. It is held thus: (SCC p. 719, para 12)
“12. The circumstance of last seen together does not by
itself and necessarily lead to the inference that it was the
accused who committed the crime. There must be
something more establishing connectivity between the
accused and the crime. Mere non-explanation on the part of
the appellant, in our considered opinion, by itself cannot
lead to proof of guilt against the appellant.”
45. The Supreme Court in the case of Shailendra Rajdev Pasvan v.
State of Gujarat, reported in (2020) 14 SCC 750 has held as under :
15. Another important aspect to be considered in a case
resting on circumstantial evidence is the lapse of time
between the point when the accused and deceased were
seen together and when the deceased is found dead. It ought
to be so minimal so as to exclude the possibility of any
intervening event involving the death at the hands of some
other person. In Bodhraj v. State of J&K, Rambraksh v.
State of Chhattisgarh, Anjan Kumar Sarma v. State of
Assam following principle of law, in this regard, has been
enunciated: (Shailendra Rajdev Pasvan case, SCC OnLine
Guj para 16)
“16. …The last seen theory comes into play where the time
gap between the point of time when the accused and
deceased were seen last alive and when the deceased is
found dead is so small that possibility of any person other
than the accused being the author of crime becomes
impossible. It would be difficult in some cases to positively
establish that the deceased was last seen with the accused
when there is a long gap and possibility of other persons
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coming in between exists. In the absence of any other
positive evidence to conclude that accused and deceased
were last seen together, it would be hazardous to come to a
conclusion of guilt in those cases.”
46. Therefore, the circumstance of Last Seen Together against the
Appellant Mukesh Tiwari shall be considered in the light of law laid down
by Supreme Court.
47. In order to use the circumstance of Last Seen Together, the
prosecution must prove that there was close proximity between the Last
Seen Together and time of death of the deceased.
48. Therefore, first of all, this Court would like to consider the Post
Mortem Report, Ex. P.16. Dr. Suresh Jain (P.W.8) has proved the Post
Mortem Report which reads as under :
Dead body of young Adult Male in advanced stage of
petrification. Lying straight supine with missing phalynxes
of all fingers of left hand and left thumb completely.
Margins of wound is (Illegible) and irregular. Bones of
right leg with thigh are exposed ankle to hip with very
small tag of soft tissue. Rest of the soft tissue missing.
Right great toe is dressed with bandage. Lower abdomen
with thigh is fully exposed. Left thigh is exposed 11 inch
below the pupil symphyses. Private missing. Lower
abdomen is (illegible) of all the soft tissue of abdominal
wall upto 13 inch above the pupil symphyses exposing
internal organs. Prostate gland seen. No injury seen in
exposed organs and intestines. As the body is swollen and
advanced stage of decomposition, (illegible) layer of skin is
peeled off and underlying dermal part of skin is blackish.
The following anti mortem wounds are present on the body
:
(1) Incised Wound 2inchx1inchx1 ½ inch deep present
on the left side of neck, 4 inch above sternoclavicular joint
placed horizontal;
(2) A semi circular incised wound 4 inch x 2 inch x bone
deep chipping the bone on left temporal parietal part of
scalp present;
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(3) Horizontal incised wound over left temporal parietal
part of scalp 3 inch x ½ inch x brain deep (illegible)
exposing the damaging the brain tissue. There is loss of
brain tissue from that area ;
(4) Right ear is missing completely exposing a wound of
about 4 inch x 3 inch muscle deep. The margins and base
of wound is moth eaten irregular (illegible) maggots. Right
eye ball missing and left shrunken.
On internal examination,
cut fracture of left temporo occipital bone ruptured at
wound site
brain and spinal cord was injured and missing at the wound
site
Both lungs were in advanced stage of pulverization due to
petrification
Liver in early stage of petrification
spleen pulverized due to petrification
Kidney in early stage of petrification
Cause of death
As far finding in and over the body of Sagar Singh son of
Guman Singh. We all the autopsy member could reach on
the opinion that the cause of death seems to be coma
associated with shock due to head injury.
Time passed since death is more than 5 days the time of
P.M.. However, viscera and bone has been preserved to
facilitate the further investigation and D.N.A. testing.
49. Dr. Suresh Jain (P.W.8) in his examination in chief had stated that
the duration of death was more than 5 days, but the Counsel for the
Appellant, in the cross-examination got further clarified and this witness
stated that the time of death may be 6-12 days.
50. The deceased Sagar Singh was abducted on 17-11-2007 and the
dead body was recovered in the evening of 27-11-2007 i.e., after 10 days.
According to Dr. Suresh Jain (P.W. 8), the death could have occurred
within 6-12 days. Therefore, it is clear that there appears to be close
proximity between the date of abduction of Sagar Singh and his death.
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51. Furthermore, the death of Sagar Singh was homicidal in nature and
one incised wound was found on his neck, and two incised wounds were
found on his left temporo parietal part of scalp. Thus, it is held that the
time of death of Sagar Singh as narrated by Doctor Suresh Jain (P.W.8)
establishes close proximity between abduction and time of death.
52. Accordingly, it is held that the circumstance of Last Seen Together
has been proved by the prosecution beyond reasonable doubt.
Recovery of Dead body of Sagar Singh
53. According to the prosecution case, the dead body of Sagar Singh
was recovered on the discovery memo, Ex. P.11 made by co-accused Sunil
Vishwakarma and the recovery memo of dead body is Ex. P.13. It is not
out of place to mention here that Sunil Vishwakarma has already
withdrawn his appeal. Therefore in absence of any challenge to the
circumstance of recovery of dead body on the memorandum of Sunil
Vishwakarma, a detailed discussion in that regard is not necessary. It is
suffice to mention here that the death of Sagar Singh was homicidal and
there was close proximity in the incident of abduction and time of death.
Identification of dead body
54. Although Guman Singh (P.W.1) had identified the dead body of his
son Sagar Singh, but in order to avoid any confusion, the police also got
the D.N.A. test. Dr. B.B. Singh (P.W. 22) had taken the blood sample of
Guman Singh (P.W.1) and his wife Ragini Singh. This witness has stated
that on 5-1-2008, he had taken the blood sample of Guman Singh (P.W.1)
and blood Sample of Ragini Singh was taken on 2-1-2008. The
identification form of Guman Singh (P.W.1) and Ragini Singh were also
filled. This witness was not effectively cross-examined by the defence.
55. The D.N.A. report is Ex. P.55 and according to this report, Smt.
Ragini Singh was the biological mother of the deceased and Guman Singh
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(P.W.1) was the biological father of deceased. Dr. Anil Kumar Singh
(P.W. 35) who had conducted the D.N.A. test was cross-examined in detail
about the medical science pertaining to D.N.A. He further stated that
except red blood cell, D.N.A. is found in every part of body of a person.
The bone of deceased was sent for D.N.A. test. Dry blood collected on
filter is generally sent for conducting D.N.A. test. This witness denied that
the dry blood of Guman Singh (P.W.1) and Smt. Ragini Singh was not sent
on filter paper. Thus, it is clear that the dead body which was recovered on
the memorandum of Sunil Vishwakarma was that of Sagar Singh, son of
Guman Singh (P.W.1).
Whether Dead body was recovered from open space or not, if yes then
its effect?
56. From the spot map, Ex. P.6, it is clear that the dead body was found
at a distance of 2 ½ km from forest track. From the spot map, Ex. P.6, it is
clear that the dead body was lying in bushes. Guman Singh (P.W.1) is the
father of the deceased. He has stated that on 27-11-2007, he was informed
by the police that one dead body has been found in the forest area,
therefore, in the morning he has to go for identification. It was further
stated that the area where dead body was lying was not motorable and they
went to the spot by walking.
57. Awadhesh Tiwari (P.W.3) has stated that he went to the forest
along with R.K. Tiwari, S.I. Investigating officer, wrote inquest report
after the dead body was recovered. He stayed back in the forest area for
the whole night and came back to the police station in the morning along
with inquest report.
58. Sandeep Yadav (P.W.6) is also a witness of memorandum of Sunil
Vishwakarma Ex. P.11 as well as recovery of dead body. He stated that
initially they went on vehicle and after reaching a particular spot, Sunil
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Vishwakarma informed that the vehicle cannot go to the place of incident
and accordingly, they walked for about 7-8 Km.s and ultimately found the
dead body. Mukesh Mishra (P.W.20) has also stated that there was a rumor
in the village that a dead body has been recovered, therefore, out of
curiosity, he also went to the spot. The dead body was lying about 2 ½ kms
away from forest track.
59. Ramkumar Tiwari (P.W.23) is the investigating officer who had
recovered the dead body. He has stated that Sunil Vishwakarma showed
the place where dead body was lying. The said space was 2 ½ Kms away
from village Kalibarah. The recovery memo, Ex. P.13 was prepared. Merg
Intimation Ex. P. 9 was written. Since, it was night, therefore, the dead
body was not shifted and it remained on the spot. He stated in the cross-
examination, that he along with his staff stayed back on the spot for the
whole night. Since, they had not taken food with them, therefore on
information given on wireless set, the arrangement of food was made by
police personnel as well as by the villagers. He further stated that in the
Lash Panchnama Ex. P.1, the opinion of the panchas that the possibility of
death is due to injury on neck is mentioned but it was clarified by this
witness, that it was the opinion of the Panchas. Since, the dead body was
in a state of decomposition, therefore, he had requested for DNA test to
establish the identity of the deceased. It was denied that incised wound on
the neck could have been caused by bite mark of a wild animal. Thus, it is
clear that the place where the dead body was found was not easily
accessible.
60. The Supreme Court in the case of State of H.P. v. Jeet Singh,
reported in (1999) 4 SCC 370 has held as under :
26. There is nothing in Section 27 of the Evidence Act which
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of the articles was made from any place which is “open or
accessible to others”. It is a fallacious notion that when
recovery of any incriminating article was made from a place
which is open or accessible to others, it would vitiate the
evidence under Section 27 of the Evidence Act. Any object
can be concealed in places which are open or accessible to
others. For example, if the article is buried in the main
roadside or if it is concealed beneath dry leaves lying on
public places or kept hidden in a public office, the article
would remain out of the visibility of others in normal
circumstances. Until such article is disinterred, its hidden state
would remain unhampered. The person who hid it alone
knows where it is until he discloses that fact to any other
person. Hence, the crucial question is not whether the place
was accessible to others or not but whether it was ordinarily
visible to others. If it is not, then it is immaterial that the
concealed place is accessible to others.
27. It is now well settled that the discovery of fact referred to
in Section 27 of the Evidence Act is not the object recovered
but the fact embraces the place from which the object is
recovered and the knowledge of the accused as to it (Pulukuri
Kottaya). The said ratio has received unreserved approval of
this Court in successive decisions. (Jaffar Hussain Dastagir v.
State of Maharashtra, K. Chinnaswamy Reddy v. State of
A.P., Earabhadrappa v. State of Karnataka, Shamshul
Kanwar v. State of U.P., State of Rajasthan v. Bhup Singh.)
61. The Supreme Court in the case of Yakub Razak Memon Vs. State
of Maharashtra reported in (2013) 13 SCC 1 has held as under :
1707. Similarly, in State of Maharashtra v. Bharat Fakira
Dhiwar, this Court held : (SCC p. 629, para 22)
“22. In the present case the grinding stone was found in tall
grass. The pants and underwear were buried. They were out
of visibility of others in normal circumstances. Until they
were disinterred, at the instance of the respondent, their
hidden state had remained unhampered. The respondent
alone knew where they were until he disclosed it. Thus we
see no substance in this submission also.”
1708. In view of the above, it cannot be accepted that a
recovery made from an open space or a public place which
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was accessible to everyone, should not be taken into
consideration for any reason. The reasoning behind it, is
that, it will be the accused alone who will be having
knowledge of the place, where a thing is hidden. The other
persons who had access to the place would not be aware of
the fact that an accused, after the commission of an offence,
had concealed contraband material beneath the earth, or in
the garbage.
62. Accordingly, it is held that the prosecution has proved that
recovery of dead body on the memorandum made by co-accused Sunil
Vishwakarma. Although the place from the dead body was recovered is an
open space, but it was not easily accessible for general public.
Recovery of articles belonging to the deceased from the possession of
Appellant Mukesh Tiwari
Seizure of Silver Chain with Gold Locket
63. Atin Tiwari (P.W. 13) is one of the seizure witness. He has stated
that the memorandum of appellant Mukesh Tiwari, Ex. P.22 was recorded
and accordingly, the police had seized one Mala of Rudraksh from the
bushes near Hiran River. The seizure memo is Ex. P.23 which bears his
signatures at A to A. The Mala of Rudraksh was Ek Mukhi. On the next
day, they went to Niwas Road, and one silver chain on which S was
engraved, was seized from the house of Nandlal Soni. The seizure memo
is Ex. P.24 and his signatures are at A to A. He was cross examined. In
cross-examination he admitted that his house is in front of the house of
Guman Singh (P.W.1). He had never appeared as a witness in any case.
They went to different places in search of Sagar Singh, except the places
from where the articles were seized.
64. Sardar Singh (P.W.15) has stated that Appellant Mukesh Tiwari
had given a memorandum Ex. P.22 and accordingly, Mukesh Tiwari, took
out one Ek Mukhi Rudraksh Mala from the bushes near the Hiran River
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which was seized by seizure memo Ex. P.23. On the next day, the police
party along with witnesses including this witness went to the house of
Nandlal Soni. Search Panchnama Ex. P.25 was prepared. The appellant
Mukesh Tiwari, took out a silver chain having one gold locket from a box
which was seized vide seizure memo Ex. P.24.
65. However, the seized articles were not got identified from the
witnesses in the Court.
66. Bundeldhar Dwivedi (P.W. 18) has stated that on 6-12-2007, he
was transferred to Police Station Kotwali. He was instructed to search out
the accused persons. He received an information from the informers that
Mukesh Tiwari is in Rewa along with co-accused Bhawani Dubey.
Accordingly, the police party went to Rewa. On 7-12-2008 (the date as
mentioned in deposition sheet but the arrest memo of Mukesh Tiwari, Ex.
P.32 disclose the date of arrest as 8-12-2007), when they reached Rewa,
then they came to know that the accused persons have already left for
Allahabad. Accordingly, they went to Allahabad and came to know that
the appellant Mukesh Tiwari has already gone back to Rewa. While they
were coming back from Allahabad, they saw Mukesh Tiwari and Bhawani
Dubey near culvert in village Kathra. The police party chased them.
Mukesh Tiwari and Bhawani Dubey took out their country made pistol.
However, Mukesh Tiwari and Bhawani Dubey were arrested with
ammunition. Loaded country made pistols were seized from Mukesh
Tiwari and Bhawani Dubey vide seizure memo Ex. P.30 and P.31.
Mukesh Tiwari was arrested vide arrest memo Ex. P.32 and one Nokia
mobile and three extra SIMs were found in the possession of Mukesh
Tiwari. A memorandum of Mukesh Tiwari, Ex. P.34 was recorded.
Mukesh Tiwari also informed that he has thrown one Rudraksh mala near
Hiran River, which was seized later on and one sword was seized from the
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forest area vide seizure memo Ex. P.35. Thereafter, on 12-12-2007, on
the disclosure made by Mukesh Tiwari, the one silver chain with gold
locket was seized from the house of Nandlal Soni, vide seizure memo Ex.
P.24. The search memo, Ex. P.25 of the house of Nandlal Soni was
prepared by this witness. Since, the article was not produced before the
Court, therefore, the further examination was deferred and on the next
date, the silver chain was identified by this witness as Article 1. In cross-
examination, this witness stated that he had received an information that
Mukesh Tiwari and Bhawani Dubey are in Rewa and accordingly, they left
for Rewa at about 11 P.M. in the night. The informer had informed that
Mukesh Tiwari and Bhawani Dubey were seen in the bus stand at about 9-
9:15 A.M. The police party reached Rewa about 5 hours after their
departure from Katni. They went to bus stand and tried to search out the
appellant. When the police party could not get any information, then he
again contacted the informer who assured that he would revert back after
collecting information. About one hour thereafter, the informer informed
that the appellant has already left for Allahabad. After having break fast,
the police party left for Allahabad. The informer also informed, that the
appellant Mukesh Tiwari and Bhawani Dubey have gone to attend the
marriage of Sonu Nishad. Informer also informed that Sonu Nishad
resides in Keetganj area. After reaching Allahabad, they did not take help
of local police. After reaching Allahabad, they again contacted the
informer who assured to revert back after collecting information.
Therefore, the police party took rest awaiting reply from informer and in
the meanwhile they did not try to search out the house of Sonu Nishad. In
the next morning, the police party was informed by informer that appellant
Mukesh Tiwari and Bhawani Dubey have already started from Allahabad
for Rewa. Accordingly, the police party also started for Rewa. After they
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crossed village Kathra, they saw the appellant Mukesh Tiwari and
Bhawani Dubey were going by walking. They had seen the accused
persons from a distance of 30-40 fts. After noticing the police party, the
appellant Mukesh Tiwari and Bhawani Dubey pointed country made pistol
towards police party. Both the accused were arrested and it took about 1
hour for seizure. They left for seizure of sword from the same place and
they took about 4-5 hours to seize the sword. Since, it was night, and
recovery of other articles was not possible, therefore, they came back to
police station. This witness also stated that since, he had seen the silver
chain with gold locket by himself at the time of seizure, therefore, he has
identified the same in the Court.
67. Thus, it is clear that although silver chain with gold locket was not
got identified from the seizure witnesses Atin Tiwari (P.W.13) and Sardar
Singh (P.W.15) in the Court, but the silver chain was got identified from
Bundeldhar Dwivedi (P.W.18) in the Court. Merely because Bundeldhar
Dwivedi (P.W.18) is a police personal, his evidence and identification of
Silver Chain, Article 1 cannot be disbelieved. The Supreme Court in the
case of Girja Prasad Vs. State of M.P. reported in (2007) 7 SCC 625 has
held as under :
24. We are equally unable to uphold the contention of the
learned counsel for the appellant that the trial court was
right in not relying upon PW 1 Anup Kumar, the
complainant and PW 10 S.K. Tiwari, Inspector of Special
Police Establishment. The trial court, it may be stated,
discarded the evidence of these two witnesses by laying
down the following proposition of law:
“It goes without saying that Anup Kumar and Shri S.K.
Tiwari were concerned only with the success of the trap and
thus both these persons are interested witnesses. PW 10,
Shri Tiwari is Inspector in Lokayukt Office therefore he is
highly interested witness.”
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25. In our judgment, the above proposition does not lay
down correct law on the point. It is well settled that
credibility of witness has to be tested on the touchstone of
truthfulness and trustworthiness. It is quite possible that in a
given case, a court of law may not base conviction solely
on the evidence of the complainant or a police official but it
is not the law that police witnesses should not be relied
upon and their evidence cannot be accepted unless it is
corroborated in material particulars by other independent
evidence. The presumption that every person acts honestly
applies as much in favour of a police official as any other
person. No infirmity attaches to the testimony of police
officials merely because they belong to police force. There
is no rule of law which lays down that no conviction can be
recorded on the testimony of police officials even if such
evidence is otherwise reliable and trustworthy. The rule of
prudence may require more careful scrutiny of their
evidence. But, if the court is convinced that what was stated
by a witness has a ring of truth, conviction can be based on
such evidence.
26. It is not necessary to refer to various decisions on the
point. We may, however, state that before more than half a
century, in Aher Raja Khima v. State of Saurashtra,
Venkatarama Ayyar, J. stated: (AIR p. 230, para 40)
“40. … The presumption that a person acts honestly applies
as much in favour of a police officer as of other persons,
and it is not a judicial approach to distrust and suspect him
without good grounds therefor. Such an attitude could do
neither credit to the magistracy nor good to the public. It
can only run down the prestige of the police
administration.”
(emphasis supplied)
27. In Tahir v. State (Delhi), dealing with a similar
question, Dr. A.S. Anand, J. (as His Lordship then was)
stated: (SCC p. 341, para 6)
“6. … Where the evidence of the police officials, after
careful scrutiny, inspires confidence and is found to be
trustworthy and reliable, it can form the basis of conviction
and the absence of some independent witness of the locality
to lend corroboration to their evidence, does not in any way
affect the creditworthiness of the prosecution case.”
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68. Thus, it is clear that seizure of Silver Chain with gold locket was
proved by the prosecution by cogent evidence.
69. It is not out of place to mention here that two memorandums of
Mukesh Tiwari were recorded, i.e., 1st on 8-12-2007, Ex. P.34 and second
on 11-12-2007, Ex. P.22. In his subsequent memorandum, he admitted
that earlier he had given a wrong information with regard to silver chain.
Seizure of Ek Mukhi Rudraksh Mala
70. As already pointed out, Atin Tiwari (P.W.13) and Sardar Singh
(P.W.15) have stated about the seizure of Ek Mukhi Rudraksh Mala from
the bushes near Hiran River. But this article was not got identified in the
Court from Atin Tiwari (P.W.13) and Sardar Singh (P.W.15).
71. However, the prosecution examined Vinod Singh Baghel (P.W.30)
who had recorded the second memorandum of Mukesh Tiwari Ex. P.22.
On the disclosure made by Mukesh Tiwari, one Ek Mukhi Rudraksh Mala
was seized from the bushes near Hiran River vide seizure memo Ex. P. 23
and the said Ek Mukhi Rudraksh Mala was marked as Article 33. In cross
examination, this witness denied the suggestion, that Guman Singh
(P.W.1) had brought the seized articles from market which were falsely
shown as seized from appellant. This witness specifically stated that since,
he had seized the articles, therefore, he has identified the same. Thus, it is
clear that although Ek Mukhi Rudraksh Mala was not shown to Atin Tiwari
(P.W.13) and Sardar Singh (P.W.15) in the Court, but the said article was
identified by Vinod Singh Baghel (P.W.30) in the Court.
72. Therefore, the seizure of one Ek Mukhi Rudraksh Mala from the
bushes near Hiran River on the disclosure made by Appellant Mukesh
Tiwari is proved beyond reasonable doubt.
Identification of seized articles
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73. Guman Singh (P.W.1) has identified the Ek Mukhi Rudraksh Mala
and Silver Chain with gold locket. According to this witness, T-Shirt,
Pant, one Rudraksh Mala, Ear ring and chain with gold socket were
identified by him in Jain Dharamshala vide identification memo Ex. P.4.
74. For the time being we will consider the identification of Rudraksh
Mala and chain with gold locket only because the aforesaid mentioned two
articles were seized from the possession of appellant Mukesh Tiwari. Ear
ring was recovered from the dead body, whereas the T-Shirt and pant were
allegedly seized from co-accused Rakesh Choudhary, who has already
withdrawn his appeal.
75. This witness was cross-examined by the appellant Mukesh Tiwari
on the question of identification of articles.
76. This witness has stated that 5 pieces of each article were kept on
the table. He had picked up the articles belonging to his son. However,
the articles were not got identified from this witness in the Court.
77. Akhilesh Tiwari (P.W.17) had conducted the Test Identification
Parade, Ex. P.4. In examination in chief, he stated that he was called by
the police to conduct the identification of articles. When he reached Jain
Dharmshala, he found that 5-5 articles were kept. Five T-shirts and 5
Trousers were kept, one Rudraksh Mala, one silver chain and one ear ring
were kept. However, in cross-examination this witness has stated that five
pieces of all the articles were kept on the table. In para 10 of his cross-
examination, this witness has further made it clear that multiple pieces of
all the articles were kept. No other important question was put to this
witness, which may make the identification doubtful.
78. The identification of articles in the Court is the substantive piece of
evidence and the identification parade held during the investigation is the
corroborative piece of evidence. In the present case, Guman Singh
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(P.W.1) was the best witness to identify the articles seized from the
possession of Appellant Mukesh Tiwari, but as already held, the
prosecution for the reasons best known to it, did not get the articles
identified from Guman Singh (P.W.1) in the Court. Therefore, the
substantive evidence with regard to identification is not available.
79. The Supreme Court in the case of Malkhan Singh Vs. State of
M.P. reported in (2003) 5 SCC 746 has held as under :
7. It is trite to say that the substantive evidence is the
evidence of identification in court. Apart from the clear
provisions of Section 9 of the Evidence Act, the position in
law is well settled by a catena of decisions of this Court.
The facts, which establish the identity of the accused
persons, are relevant under Section 9 of the Evidence Act.
As a general rule, the substantive evidence of a witness is
the statement made in court. The evidence of mere
identification of the accused person at the trial for the first
time is from its very nature inherently of a weak character.
The purpose of a prior test identification, therefore, is to
test and strengthen the trustworthiness of that evidence. It is
accordingly considered a safe rule of prudence to generally
look for corroboration of the sworn testimony of witnesses
in court as to the identity of the accused who are strangers
to them, in the form of earlier identification proceedings.
This rule of prudence, however, is subject to exceptions,
when, for example, the court is impressed by a particular
witness on whose testimony it can safely rely, without such
or other corroboration. The identification parades belong to
the stage of investigation, and there is no provision in the
Code of Criminal Procedure which obliges the investigating
agency to hold, or confers a right upon the accused to claim
a test identification parade. They do not constitute
substantive evidence and these parades are essentially
governed by Section 162 of the Code of Criminal
Procedure. Failure to hold a test identification parade would
not make inadmissible the evidence of identification in
court. The weight to be attached to such identification
should be a matter for the courts of fact. In appropriate
cases it may accept the evidence of identification even
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without insisting on corroboration. (See Kanta Prashad v.
Delhi Admn., Vaikuntam Chandrappa v. State of A.P.,
Budhsen v. State of U.P. and Rameshwar Singh v. State of
J&K)
8. In Jadunath Singh v. State of U.P. the submission that
absence of test identification parade in all cases is fatal, was
repelled by this Court after exhaustive consideration of the
authorities on the subject. That was a case where the
witnesses had seen the accused over a period of time. The
High Court had found that the witnesses were independent
witnesses having no affinity with the deceased and
entertained no animosity towards the appellant. They had
claimed to have known the appellants for the last 6-7 years
as they had been frequently visiting the town of Bewar.
This Court noticed the observations in an earlier unreported
decision of this Court in Parkash Chand Sogani v. State of
Rajasthan wherein it was observed: (SCC pp. 522-23, para
11)
“It is also the defence case that Shiv Lal did not know
the appellant. But on a reading of the evidence of PW
7 it seems to us clear that Shiv Lal knew the appellant
by sight. Though he made a mistake about his name by
referring to him as Kailash Chandra, it was within the
knowledge of Shiv Lal that the appellant was a brother
of Manak Chand and he identified him as such. These
circumstances are quite enough to show that the
absence of the identification parade would not vitiate
the evidence. A person, who is well known by sight as
the brother of Manak Chand, even before the
commission of the occurrence, need not be put before
an identification parade in order to be marked out. We
do not think that there is any justification for the
contention that the absence of the identification parade
or a mistake made as to his name, would be
necessarily fatal to the prosecution case in the
circumstances.”
The Court concluded: (SCC pp. 523-24, para 15)
“15. It seems to us that it has been clearly laid down
by this Court in Parkash Chand Sogani v. State of
Rajasthan that the absence of test identification in all
cases is not fatal and if the accused person is well
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known by sight it would be waste of time to put him
up for identification. Of course if the prosecution fails
to hold an identification on the plea that the witnesses
already knew the accused well and it transpires in the
course of the trial that the witnesses did not know the
accused previously, the prosecution would run the risk
of losing its case.”
9. In Harbajan Singh v. State of J&K though a test
identification parade was not held, this Court upheld the
conviction on the basis of the identification in court
corroborated by other circumstantial evidence. In that case
it was found that the appellant and one Gurmukh Singh
were absent at the time of roll-call and when they were
arrested on the night of 16-12-1971 their rifles smelt of
fresh gunpowder and that the empty cartridge case which
was found at the scene of offence bore distinctive markings
showing that the bullet which killed the deceased was fired
from the rifle of the appellant. Noticing these circumstances
this Court held: (SCC p. 481, para 4)
“4. In view of this corroborative evidence we find no
substance in the argument urged on behalf of the
appellant that the Investigating Officer ought to have
held an identification parade and that the failure of
Munshi Ram to mention the names of the two accused
to the neighbours who came to the scene immediately
after the occurrence shows that his story cannot be
true. As observed by this Court in Jadunath Singh v.
State of U.P. absence of test identification is not
necessarily fatal. The fact that Munshi Ram did not
disclose the names of the two accused to the villagers
only shows that the accused were not previously
known to him and the story that the accused referred to
each other by their respective names during the course
of the incident contains an element of exaggeration.
The case does not rest on the evidence of Munshi Ram
alone and the corroborative circumstances to which we
have referred to above lend enough assurance to the
implication of the appellant.”
80. Thus, it is held that although the seizure of Ek Mukhi Rudraksh
Mala and Silver Chain with gold locket has been proved by the
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prosecution, but the prosecution has failed to prove that the aforesaid
articles belonged to the deceased, therefore, it is held that identification of
aforesaid articles is not proved.
Seizure of Sword and F.S.L. report
81. Bundeldhar Dwivedi (P.W. 18), Shailendra are the seizure
witnesses of sword whereas A.V. Singh (P.W.21) had seized the sword, on
the memorandum, Ex. P.34 of Mukesh Tiwari. Shailendra, another seizure
witness was not examined by the prosecution. The sword, Article 10 was
seized vide seizure memo Ex. P.35. In the seizure memo, blood stains on
the sword were mentioned. Similarly, in memo dated 27-12-2017, Ex. P.
52, which was sent by S.P. Katni to Director, F.S.L., Sagar, it is
mentioned that sword (Article J) is blood stained. However, in the F.S.L.
report, Ex. 53, it is mentioned that no blood was found on Sword which
was seized from Mukesh Tiwari. Therefore, the seizure of sword from the
possession of appellant Mukesh Tiwari, cannot be said to be the seizure of
weapon of offence.
82. Thus, it is clear that the prosecution has proved that the deceased
Sagar Singh was abducted by Mukesh Tiwari, and 4 other co-accused
persons namely Sunil Vishwakarma, Shrichand Kori, Bhawani Dubey and
Rakesh Choudhary, and thereafter the dead body of Sagar Singh was
recovered on the memorandum made by co-accused Sunil Vishwakarma.
The death of Sagar Singh was homicidal in nature. Although the seizure of
Ek Mukhi Rudraksh Mala and one Silver chain with gold locket from the
possession of appellant Mukesh Tiwari has been proved by the
prosecution, but in absence of identification, it cannot be held that
aforesaid two articles belonged to the deceased. Further more, in absence
of blood on the sword, Article 10, it cannot be said that the weapon of
offence was recovered from the possession of Appellant Mukesh Tiwari.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 04-09-2024
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42 Cr.A. Nos.2025/2009 and 2050/2009
Whether Mobile and three SIMs were seized from the possession of
appellant Mukesh Tiwari?
83. Bundeldhar Dwivedi (P.W.18) and A.V. Singh (P.W.21) have
stated that when Mukesh Tiwari was arrested, one country made pistol
with one live cartridge was seized vide seizure memo Ex. P.30. The
memorandum of Mukesh Tiwari Ex. P.34 was recorded and one sword was
seized vide seizure memo Ex. P.35. However, Bundeldhar Dwivedi
(P.W.18) has also stated that one mobile phone of Nokia company and
three SIMs i.e., one of Airtel Company and two SIMs of Idea company
were also recovered. But no seizure memo of Mobile Phone and three
SIMs was prepared. Why that was not done has not been clarified by the
prosecution.
84. Similarly, A.V. Singh (P.W.21) has also stated that when Mukesh
Tiwari was arrested on 8-12-2007, one mobile phone with three extra SIMs
were recovered. However, no seizure memo was prepared. Why A.V.
Singh (P.W.21) did not prepare the seizure memo of mobile Phone and
three extra SIMs recovered from the possession of Mukesh Tiwari, has not
been explained. Thus, the prosecution has failed to prove that mobile
phone and three SIMs i.e., one of Airtel Company and two of Idea
Company were recovered from the possession of Mukesh Tiwari.
85. But, since, the allegation of abduction and circumstance of Last
Seen Together has been proved by the prosecution beyond reasonable
doubt, therefore, the conviction of the appellant Mukesh Tiwari for offence
under Sections 120-B, 364/120B, 365/120B, 302/120B and 201/120B of
IPC is hereby affirmed.
86. According to Bundeldhar Dwivedi (P.W. 17) and A.V. Singh
(P.W.21) one country made pistol was seized from the possession of
Appellant Mukesh Tiwari. G. Kuzoor (P.W. 7) has proved the sanction for
Signature Not Verified
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MISHRA
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43 Cr.A. Nos.2025/2009 and 2050/2009
prosecution under Section 25 and 27 of Arms Act. Tilak Singh (P.W.12) is
the armorer who had submitted the ballistic report, Ex. P.17. Tilak Singh
(P.W.12) was not cross-examined at all.
87. Thus, it is clear that the prosecution has proved the seizure of
country made pistol from the possession of Mukesh Tiwari, therefore, his
conviction under Section 25 and 27 of Arms Act is also upheld.
Cr.A. No. 2025 of 2009 Deepak Tiwari
88. Deepak Tiwari is the nephew of co-accused Mukesh Tiwari and
son of co-accused Sunil Tiwari. Neither he was named in the incident of
abduction, nor there is any other evidence of Last Seen Together. Further,
no seizure of any incriminating article was made from his possession.
Deepak Tiwari was arrested on 6-1-2008 vide arrest memo Ex. P. 37, and
one mobile phone containing No. 9977637710 was seized from his
possession vide seizure memo Ex. P.38. Although the prosecution has
tried to show that the appellant Deepak Tiwari had talked to co-accused
Mukesh Tiwari on 17-11-2007, but as this Court has already held that the
prosecution has failed to prove the seizure of mobile phone and three SIMs
from Mukesh Tiwari, therefore, even if the appellant Deepak Tiwari had
talked on mobile No.s 9981880925 and 9300762147 on 17-11-2007, still it
cannot be held that Deepak Tiwari had talked to Mukesh Tiwari. Even
otherwise, Mukesh Tiwari is the real uncle of appellant Deepak Tiwari. In
para 133 of impugned judgment it was also held by Trial Court that
Deepak Tiwari had talked on mobile no. 9981880925 on 2-11-2007.
Since, Deepak Tiwari is the nephew of Mukesh Tiwari, therefore,
telephonic talk with Mukesh Tiwari prior to the offence of abduction
cannot be a conclusive proof that Deepak Tiwari was a part of conspiracy.
Further more, the prosecution has failed to prove that SIM no.
9981880925, 0754386176 and 9907562943 were seized from Mukesh
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MISHRA
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44 Cr.A. Nos.2025/2009 and 2050/2009
Tiwari. Even no evidence was led to show that in whose names, those
SIMs were issued.
89. Therefore, the conviction of Deepak Tiwari for offence under
Sections 120-B, 364/120B,265/120B,302/120B and 201/120B of IPC
cannot be upheld. Accordingly, it is set aside. The Appellant Deepak
Tiwari is acquitted of all the charges.
Appellant Sunil Tiwari
90. Sunil Tiwari, is the father of Deepak Tiwari and real brother of
appellant Mukesh Tiwari.
91. Sunil Tiwari was arrested on 21-11-2007 and one mobile phone
containing number 9977637710 was seized from his possession.
92. Sunil Tiwari was neither involved in abduction of Sagar Singh, nor
there is any evidence of Last Seen Together. No incriminating article was
seized from the possession of Sunil Tiwari. The only circumstance is with
regard to conspiracy.
93. In para 133 of the impugned judgment, the Trial Court has held that
the appellant Sunil Tiwari had talked to appellant Mukesh Tiwari on 3-11-
2007, and on 17-11-2007. Since, the prosecution has failed to prove that
three SIMs i.e., No.8991930607048752033, 8991786707078757808 and
8991890110011120637 were seized from Mukesh Tiwari, therefore, it is
held that the prosecution has failed to prove that Sunil Tiwari was in touch
with Mukesh Tiwari. Furthermore, the prosecution has not proved that in
whose name(s) three SIMs i.e., No.8991930607048752033,
8991786707078757808 and 8991890110011120637 were issued. Since,
Sunil Tiwari is the real brother of Mukesh Tiwari, therefore, even if any
talk had taken place between them, than in absence of any other evidence,
it cannot be held that the appellant Sunil Tiwari had hatched conspiracy
with Mukesh Tiwari and others to abduct and kill Sagar Singh. Therefore,
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 04-09-2024
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45 Cr.A. Nos.2025/2009 and 2050/2009
the conviction of Sunil Tiwari for offence under Sections 120-B,
364/120B,265/120B,302/120B and 201/120B of IPC cannot be upheld.
Accordingly, it is set aside. The Appellant Sunil Tiwari is acquitted of
all the charges.
Question of Sentence in respect of Appellant Mukesh Tiwari
94. Since, none had appeared on behalf of Appellant Mukesh Tiwari,
therefore, this Court considered the question of sentence on its own. The
minimum sentence for offence under Section 302 of IPC is Life
Imprisonment. Therefore, this Court is of the considered opinion, that no
interference is required on the question of sentence. Accordingly, the
sentence awarded by Trial Court for offence under Sections 120-B,
364/120B, 365/120B, 302/120B and 201/120B of IPC and under Section
25-27 of Arms Act is hereby affirmed. All the sentences shall run
concurrently.
Conclusion
95. Ex-Consequenti, the Judgment and Sentence dated 13-10-2009
passed by 2nd Addl. Judge to the Court of Addl. Sessions Judge, Katni in
S.T. No.42/2008 in respect of Appellant Mukesh Tiwari is hereby
affirmed. However, the same is set aside in respect of Appellant Sunil
Tiwari and Deepak Tiwari.
96. The appellant Deepak Tiwari is on bail. His bail bonds and surety
bonds are hereby discharged. He is no more required in the present case.
97. The appellant Sunil Tiwari was granted bail. However, it appears
that he did not appear before the Registry of this Court and accordingly by
order dated 12-9-2012 and 15-9-2014, his bail bonds were cancelled. But
thereafter, it appears that he was not arrested and was not produced in this
case. Since, this Court has already acquitted the Appellant Sunil Tiwari,
therefore, it is held that he is no more required in the present case.
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 04-09-2024
19:10:32
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46 Cr.A. Nos.2025/2009 and 2050/2009
98. So far the Appellant Mukesh Tiwari is concerned, it is submitted
by Counsel for State that the Appellant Mukesh Tiwari was also convicted
in S.T. 101/200, decided by 2nd Addl. Sessions Judge, to the Court of Addl.
Sessions Judge, Katni for offence under Section 147,148,302/149 of IPC
and was sentenced to undergo the Life Imprisonment. His Criminal
Appeal No. 2049 of 2009 was also dismissed by High Court by order dated
26-2-2018. Since, the Appellant Mukesh Tiwari has been awarded Life
Imprisonment twice, therefore, in the light of circular dated 22-9-2022 he
not is entitled for remission. Thus, it is clear that appellant Mukesh Tiwari
is in jail. Therefore, he shall undergo the remaining jail sentence.
99. Let a copy of this order be immediately sent to the Trial Court
along with its record for necessary information and compliance.
100. Cr.A. No. 2025 of 2009 filed by Sunil Tiwari and Deepak Tiwari
is allowed whereas Cr.A. No. 2050 of 2009 filed by Mukesh Tiwari is
hereby Dismissed.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
Arun*
Signature Not Verified
Signed by: ARUN KUMAR
MISHRA
Signing time: 04-09-2024
19:10:32