HIGH COURT OF MADHYA PRADESH : JABALPUR Criminal Appeal No. 1554/1995 Ramesh alias Guddu Sapera, son of Bhanwarji, aged 22 years, Resident of Bhagwanpur, P.S. Umraoganj, District Raisen …Appellant vs. State of M.P. through SHO, P.S. Umraoganj, District Raisen ...Respondent ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- Shri G.P. Patel and Pushpendra Dubey, Advocates for the appellant. Shri Amit Kumar Sharma, P.L. for the respondent-State. ----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------- JUDGMENT (21/11/11) This appeal has been preferred against the judgment dated 6/11/95 passed by First Additional Sessions Judge, Raisen, in S.T.No.109/94, whereby the appellant was convicted and sentenced as under – Convicted under Section Sentenced to 304 Part II of the IPC undergo R.I. for 5 years and to pay a fine of Rs.500/-, in default to suffer R.I. for 3 months 394 of the IPC undergo R.I. for 3 years and to pay a fine of Rs.500/-, in default to suffer R.I. for 3 months with the direction that the jail sentences run shall concurrently 2. Prosecution case may briefly be stated thus: (i) Naval Singh (since deceased and hereinafter referred as ‘Naval’), met with homicidal death at the age of 8 years. He was the son of Ghisilal (PW2) and Janki Bai (PW8). At the relevant point of time, they were residing in Village Mahuakhedi in the close vicinity of Bhagwanpur, the native place of the appellant. (ii) On 6.6.94, at about 3 p.m., Naval had left his house to graze as many as 11 goats in the nearby Jungle of Chhatarpur. Soon thereafter, the appellant had arrived at Ghisilal’s house to know whereabouts of Naval and was apprised by Janki Bai that he had gone to the Jungle. As Naval did not return home, Ghisilal, after making an intensive search, informed the police on the following day at 6.30 p.m. accordingly. Scribing the information at S.No.144 in the Roznamacha, Head Constable Mansingh (PW6) registered a missing case. The inquiry revealed that on 6/6/94, at about 6 in the evening, Ramesh (PW4) and Jamna Prasad had seen the appellant while returning from the Jungle and driving 10 goats towards Gohadi. (iii) On 10/6/94, at the appellant’s instance, dead body of Naval was recovered from the Jungle wherein it was lying beneath a Pharni tree in a decomposed stage and covered by stones excavated from a nearby place. After inquest proceedings, the dead body was sent to hospital for post-mortem examination. Autopsy Surgeon Dr. C.S. Jain (PW1) opined that Naval’s death was caused due to strangulation and was homicidal in nature. (iv) On 14/6/94, upon information given by appellant, ASI Jamunalal Sunder (PW10) was able to recover 6 goats from the possession of Sheikh Kammu, a resident of Jinsi (Bhopal), who had purchased 6 goats along with 2 kids from the appellant at Ramleela Evam Basanti Mela, organized at Bhanpur, Chhola Road, Bhopal on 7/6/94. :: 2 :: Cr.A. No.1554/1995 (v) In the light of the findings of inquiry, a case under Sections 302 and 394 of the IPC was registered by M.L. Chouhan (PW12), the SHO, by scribing FIR (Ex.P/12). 3. The appellant pleaded false implication due to animosity. In the examination, under Section 313 of the Code of Criminal Procedure, he further asserted that his relations with Ghisilal were strained in view of dispute as to land. He also raised a plea of alibi and examined Madanlal (DW1) to show that, during the relevant period, he had been working at a dairy located in Anand Nagar at Bhopal. 4. Upon consideration of the entire evidence on record, learned trial Judge, for the reasons assigned in the impugned judgment, proceeded to conclude that although, complicity of the appellant in robbery as well as in causing death of Naval was proved beyond a reasonable doubt yet, the offence of murder was not made out from the evidence and instead, he was liable to be convicted for the offence of culpable homicide punishable under Section 304 Part II of the IPC. 5. Legality and propriety of the convictions have been challenged on the following grounds: (i) Confessional part of the statement leading to discovery of the dead body, said to have been made by the appellant and recorded under Section 27 of the Evidence Act in memorandum (Ex.P/10), was not admissible in evidence. (ii) Non-examination of Sheikh Kammu as well as non- identification of goats as subject matter of offence of :: 3 :: Cr.A. No.1554/1995 robbery was sufficient to record finding of not guilty in respect of the offence under Section 394 of the IPC. In response, learned Panel Lawyer, while making reference to the incriminating pieces of evidence, submitted that the convictions are well founded. 6. Before entering into merits of the rival contentions, it would be necessary to first advert to the medical evidence. 7. Relevant extracts of the post mortem report (Ex.P/1) authored by Dr. C.S. Jain (PW1) may be reproduced as under:- “Dead body of an average built male child ……is in decomposition stage, but face can be identified..…… scalp hairs 3-5 cm long, black, straight, loosely adherent ………Flesh from medial aspect of right forearm, right leg, pelvic region, left thigh region is almost missing. Right foot is missing. Ped ki chhal (Bark of tree) like material which is in the shape of 2 cm broad belt is used to ligate the neck. Knot is fixed type. On cutting turns given in loop. Ligature mark present around neck. Skin is hard, depressed 2 cm broad , neighbouring skin is soft and peeling at places. On anterior aspect mark is 5 cm below chin, 1 cm below angle of mandibles both side, on lateral aspect mark is two cm below middle of mandible ramus, posterior mark is 4.5 cm below external occipital protuberance, mark is continuous throughout the neck. Underneath to mark, ecchymosis can be appreciated. …… ” He was emphatic in opining that the death was homicidal in nature as the signs of ante mortem strangulation were found. No dispute was raised as to the nature of Naval’s death. :: 4 :: Cr.A. No.1554/1995 8. However, there was no direct evidence to connect the appellant with the offences and the prosecution case was based on the following circumstances - (a) On 6/6/94, the appellant had come to the house of Ghisilal to inquire about Naval and was informed by Janki Bai that he had taken the goats to Jungle for grazing. (b) On 6/6/94, at about 6 in the evening, the appellant was seen by Ramesh and Jamna Prasad, while coming from the side of Jungle and driving 10 goats towards village Gohadi. (c) On 10/6/94, at the instance of the appellant only, dead body of Naval was recovered from the Jungle. (d) On 14/6/94, upon information given by the appellant, as many as 6 goats forming part of the herd taken by Naval to the Jungle were recovered from the possession of Sheikh Kammu. 9. The prosecution was not able to prove circumstance (b) [above] as one of the witnesses viz. Ramesh (PW4) turned hostile and did not state any incriminating fact against the appellant, whereas Jamna Prasad was not examined. Circumstance (d) could also not be established in view of these lacunae and infirmities in the prosecution case: - (i) non-examination of Sheikh Kammu and Bhagwan Singh, the Secretary of Gram Panchayat before whom Ghisilal had identified six amongst the seized goats as belonging to him only. :: 5 :: Cr.A. No.1554/1995 (ii) admission made by ASI Jamunalal (PW10) that only Kamal Singh and Motilal accompanied him to the house of Sheikh Kammu. (iii) admission made by Ghisilal that out of 6 goats handed over to him by police, only two belonged to him. 10. In such a situation, charge of robbery could not be held to be established against the appellant. 11. Evidence concerning remaining circumstances, as highlighted by the prosecution and found proved by learned trial Judge, may be re-appreciated in the light of the rival contentions in the following manner – Cirumstance (a) :- 12. It is true that the entry (Ex.P/4) recorded in the Roznamacha by Head Constable Mansingh Tomar (PW6) upon intimation given by Ghisilal did not contain the fact that the appellant had come to his house to know location of Naval yet, his wife Janki Bai (PW8) was emphatic in stating that it was the appellant only who had come to inquire about Naval immediately after his departure to Jungle for grazing cattle. Nothing could be elicited in her cross-examination so as to suggest that she was interested in securing conviction of the appellant on false grounds. Her testimony drew ample support from the statement of her husband Ghisilal (PW2). As parents, they were not expected to leave any person involved in the killing of their son while evidence of Madanlal (DW1), who was called to prove the plea of alibi, was apparently vague inasmuch as he failed to mention the date on which the appellant was apprehended by the police. 13. Thus, on one hand, there was overwhelming evidence on record to prove complicity of the appellant in the matter and on the :: 6 :: Cr.A. No.1554/1995 other, probability of the defence of being elsewhere was also not established. In such a situation, the evidence brought on record was rightly considered as sufficient to prove circumstance (a) [supra]. Cirumstance (c) :- 14. Mangilal Chouhan (PW12), the SHO, clearly asserted that upon the information given by the appellant, he was able to recover dead body of Naval from the Jungle. Corresponding memorandum (Ex.P/10), recovery panchnama (Ex.P/5), spot map (Ex.P/7) & memo pertaining to seizure of shoes belonging to deceased were tendered in evidence. Motilal (PW3) and Parasram (PW11), the Panch witnesses to memorandum (Ex.P/5) substantiated the fact that information relating to Naval’s dead body was received from the appellant only. Moreover, Kamal Singh (PW7), one of the panch witnesses to the recovery memo (Ex.P/5), spot map (Ex.P/7) and seizure memo (Ex.P/9) also supported the factum of (a) recovery of the dead body at the instance of appellant from the place reflected in the spot map and (b) seizure of shoes therefrom. The defence did not prefer to cross-examine Parasram whereas no dispute as to factum of discovery of the dead body was raised in the cross- examination of Kamal Singh and Ramlal, who claimed to have accompanied the police party to the place of its concealment. 15. In the light of the overwhelming evidence on record, it was rightly held that the circumstance (c) [ibid] relating to recovery of Naval’s dead body at the instance of the appellant was clearly established. However, learned trial Judge fell into error in taking into account part of the statement said to have been made by the appellant before Motilal (PW3) to the effect that he had strangulated Naval, who was following the goats being taken away by him, to death as it was clearly inadmissible for these reasons – (i) it was made in presence of the police officer and :: 7 :: Cr.A. No.1554/1995 (ii) it did not relate to the discovery of the dead body. 16. Further, in absence of evidence as to particular motive, mere recovery of dead body upon information given by the accused was not a conclusive circumstance as to his complicity in the homicide but it merely raised strong suspicion against him (Bakshish Singh Vs. State of Punjab (AIR 1971 SC 2016) referred to). Moreover, the fact that dead body was found partly covered by the stones, was only sufficient to prove, that he had concealed the dead body knowing fully well that offence of murder was committed and, in absence of any other material conclusive proof, not that the murder was committed by him only (Chhotu Singh Vs. State of Rajasthan (1999 SCC (Cri) 461) relied on). Accordingly, the conviction under Section 304 Part II deserves to be converted to one under Section 201 of the IPC. 17. Coming to the question of sentence, while submitting that the appellant has already suffered imprisonment of nearly 1 year and 8 months, learned counsel for the appellant has submitted that reduction of the term of custodial sentence to the period already undergone would be sufficient to serve the ends of justice. However, taking into consideration the social impact of the crime and other relevant circumstances of the case, the prayer is not acceptable. Nevertheless, interests of justice would be met if the term of custodial sentence is reduced to 3 years. 18. Consequently, the appeal is allowed in part. In the result – (i) Conviction of the appellant under Section 394 of the IPC and consequent sentences are set aside. Instead, he is acquitted of the offence. (ii) Appellant’s conviction under Section 304 Part II is converted into one under Section 201 of the IPC and, instead :: 8 :: Cr.A. No.1554/1995 of 5 years’ R.I., he is sentenced to undergo R.I. for 3 years and to pay fine of Rs.1000/- and in default to suffer R.I. for 3 months. 19. Appellant is on bail. He is directed to surrender to his bail bonds before the trial Court on or before 21/2/12 for being committed to the custody for undergoing remaining part of the sentence. Appeal allowed in part. (R.C. MISHRA) JUDGE 21/11/11 :: 9 :: Cr.A. No.1554/1995