(^ m IHS HIGE GGSBX OF Qivision Bendi (, rir"ll.,-!> \-^\\ ®Bl]S^E>APPBAI. OT!B ^SIIOK 574(2) OF THS eRMnjtti JSSEM^ C^A/srA-s-i.) ,0" *-•• ^--' ^3.''^-':" ,,j wyy -' f 'l.-l' .<• P.S. Saehetl, Mst. Kaapar ,C@P) ^' AliUa ^••:sssm:^t^-s-^sv^s^^^^ •T^ W3K II; ^^;;i; Ifhi BilE It'll^ iMI Sfil w^ 1!1»!!!1 E.!:il HI6H COURT OF CHHATTISSARH. BILASPUR Criminal ApDeal No.1311 of 2000 Prqmod Sin9h alias ftaju Singh - Versus - State of Madhya Pradesh (now Chhattisgarh) JUbSMENT FOR CONSIDERATION il—~tl JudSe HON'Bl£ SHRI JUSTICE L.C. BHADOO Sd/- L.C.BHADOO Judge +\ POST FQR JU&6MENT ON ^"^02- Sd/- JU &6 E ^6/02/2087 a's; ni i'III i..:il •INBi •iia Iffll ffil tlll 1UB \ MieHCOURT OF CHHATTISGARH. BILASPUR .1311 of Pramod Sin9h atias Raju Singh - Versus- State of Aladhya Pradesh (now Chhatt-isgarh) < Present '< A'r. R.K. Jain, Advocate; Mr. Akhil Mishra, Panel Law/yer; For the appeliant. For the State/respondent. &IVISION BENCH: — HON'BLE MR. L.C. BHAtiOO ANtt HON'BLE MR.OHIRENEiRA ttISHftA, JJ. JUbffME N T (DeliveredonJlf_l::ebruary,2007) 1 Followinq Judqment of the Court was delivered by Shirendra Mishra. J'- 1 1. The appellant has preferred thls crimina! appeal under Section 374 (2) of the Code of Griminal Procedure (for.s|hort *the Code') against the judgment dated 24th lApril,2000 passed in Sessions Trial No.70/99by the Additional Sessions Judge, Rajnandgaon, by.which ieapned Adclitiona! Sessiions Judge after holding the appellant guilty for comniissilon df i J offence under Sectibns 394 red uvith Section397!and Section 302 of the Indian Penal Code (for short'the lllPC'); 1 sentenced tiim to undergo R.I. for seven years:and t:o|^ay|a fine of Rs.200/- «& R.I. for life arid to pdy a ;finel of Rs.2,000/- t'espectively with usual def&utt ctausg. ^ 2. Briefty stated the case of'progeGution is that on 9'.^.|t999 ' ' '• ~ .'. ;: . / . .' .'^ . '. ; .':'..•.. .V..._lil_:L.i complainant^ SanjayAgarwal lodged q behati Nalishi (E^P-1) 1 \ 5 ^'^- 2 . in the Poiice Station Lal.bagh, Rajnandgaon mentioning therein that they had engaged Javerilal (since deceased) as 'Watchman' in their par-boiled rice mill plant, which is ciosed since last three months. His brother namely Kishan Agarwal received telephonic message from one Alok Rungta that tKeir Watchman has been murdered, whereupon he reaehed to his plant and went in the office room where Javerilol used to sleep. The room u/as closed from the inside, therefore, they saw from the window situated in the rear side and found that Javeriial was lying dead. Blood was splashed around. Some unknown person has killed Javerila! with some lethal weapon. Since watchman Subhash of nearby Poha Mill was dlso murdered in the same night tt appeiars that the same perion has murderey Javerilal. On tli^ bdsis of behati Nalishi, First Information R«port (Ex.P-l.Z} was registered. inquest over the dead body of deceased was prepared in presence of the witnesses, sarne was sent for dutopsy to the Distnict Hospita!, Rlffljnandgaon, where Dr. H.K. Joshi (PW-jll) conducted postmortem examinQtion on the body of deceased ;i and submittecl hisreport Ex.P-11; One blood stnined iron rod, blood stained pocket cliary,blood stained bed-sheet, cover|of pillow and biood stained blanket were taken into possession vide Ex.P-4 from the place of incident. On the basisjof memorandurn |of the appellant (Ex.P^65-u wrist wdtch |f(fas recovered from the house of appellant vicle Ex.P-7. J^st identification parade of the appeltant was ceintiuctedl on 13.3.1999 byjthe Executlve Magistrate Shri 6.R. MaHi.Rdl (PW-15), where witnesses ndmeiy Rajendra.Kumar (KSV| AAunnaial (PW-7) iSi beonath (PW-9) have , identifleid iljlie appe'lant vide Ex.P-S, P-'S'iii P-10. J The appellanf wa? identified in ; the test' tdanl-ification : pa|pade byl'j wij'ttie name ly Sanjdy, BhBgwttnfSingH('iSiRgmgula) VKJeiEx.i?-%1:H' w :3 011. aem i^ L! 4^] \ le. 'r \. 1]liil -^ 11(11: fwl f-'^'l^.:-^.' ... {.^l-c'^ Qfi P-19. On 16.3.1999 a pocket diary of theappellant iivas also tdken into ppssession vide seizure menno of Ex.P-5. Sealed bag containin9 pant, underwear and shirt, another seaied; ptastic jar containing; viscera, smQll intestine and .bigi intestine, snother sealed plastic jar containing parts of body of deceased and a small bottle containing tiquid brought from the hospital were taken into possession vide Ex.P-16. Blood stained seized articles were sent for chemical examination to the Forensic Science Laboratory, Sagar, from where report^ Ex.P-20 was received. Seized articles were also sent to the Serologist and Chemical Examiner; ond report of the Serologist is Ex.P-54. Pocket diary ^seized from the spot;; specimen handwritin9 of the appeltant and diary of the| appellant bearing his old handwriting were sentl to the DirectoF, Handwritihg Expert, Police i-leadquarters, Bhopal j| (M.P.) vide Ex.P-22 and the reports of the State Examiner of | questioned documents dated 25,11.1999 are Ex.P-45 & P-46 jl respectively. Spot map (Ex.P-47) was prepared; by the Investigating Officer on 9.3.1999. The specimen signaturest of the appellant on six separate papers were Itaken inj presence of the witnessesyide Ex.P-9. ' | | After completing the investigation, charge sheet |was filfed'! against the accused/appelfont in the Court of Chief Judjici(|] Magistrdte, Rajnandgaon who in turn committed t|hle cds|e t|:> i:i; : • i: i ;:1^ t!he Court of Sessions Judge, Rajnandgaon and the same wa^sj received on transfer for trial by learned Addition^ Sessi&^s Judge, who framed charges under Section 394J 1'ettd .witBJ .l;(.l''r:.l^r:lll Sectton 397 and Sec-1-ion 302 of\th;e IPC. The,|ajipe[tlar<i abjured h i s gui It.f .•The jarase cufijori in :order to esjjj •&^' • ';;- '•:.'. '. ' ':: •., ••'•' '. charges, agai-nst'l'frhelfl^^eNant'exaiTiinedtn'all ,1:8 bliisW.ji-ti lilinN^ei Th epjsafferi, •t'fre;js|t|!i't'eim'e:n't"i's'f.dppel lant was •re&c^^Kff jttnjd^ Section 313 o^^jfihie H Cr.P.C. : in which. hs iinied •i?t -••ri 1;':'(' S-i \ 4 circumstances appearing a9ainst him in the prosecution case and pleaded that persons who had identified him were firstly beaten in the police station, thereafter they were made to dentify him. Afterwards, he was also beaten. No watch or diary iyas seized from him. For identification firstiy he was called on the main gate of jail, where all the persons who we're present in the police station were sitting and thereafter identification parade was done. Al! the witnesses were first apprehending by the police. He was working in the Bombay Furniture, Rajnandgaon since last one month when police caught him. The Poiice has falseiy impiicated him, he has been implicated at the behest of 'Seth'b^ the witnesses, He was f.irst arrested by the potice and thereafter he was let off. He has been falsely implicated, However, learried Additionai Sessions Judqe .convicted and sentenced the appellant as described above. 1-iomicidal death of Javerilal is not in dispute. Even otherwise from perusal of the postmortem report of Ex.P-11, which has been proved by Dr. H.K. Joshi (PW-11), in whjch injuries described below were found on the person of the deceased and the doctor opined that the cause of death;of deceased was coma due to injurieg over the head and +he death was homicidal in nature. The foliowing injuries were present over the body fif the deceased;- ; I a. one confusion over the right side of skut! n/here sMull bone broken. in five pieces and cheek bone into |tjwo pieces. . || b. Three laceratecL wounds over the right side of skull|J,e. (i) one lacerated wound near the occipita! regionlatjeha! to mid-ragital line wide underneath bone broken. (ii5|one lacerated wound infront of injury No.(a). (iii) I'one iacerated wourid above root of nose lateral to mid sagiii-al :i and brain material emerging out of it, \ u' &. 5 c. Two injuries over and oround right ear, d. One lacercted wound in the size of I"xl/4" ful! thickness of pinna. In this case, there ig no eyewitness to the incident and the conviction is pests on the circumstantia! evidence. The 1 ^ circumstances relied upon by the trial court for convicting the appellant are as under:- , (i) Javerilal was murdered in the par-boiled plant. | (ii5 He was murdered bythe blood stained rod found there. (iii) The appellant was caught in the nearby Shiunath Rice Mill in the same night. (iv) At fhe time when he was caught in the adjacenfr rice mi!l,the appellant was to!d his name as Subhash,iwhich was false. \ (v) On the next day morning the appellant fled from there. (vi) The appeilant has been identified by the witnesses. (vii)[)iary (EX.P-23) seized from the place of incident belonged to the appellont. (viii) Wrist watch of the deceased was seized from the house of the appe liant. Learned counsel for the appellant argued that the witnesses, who have identified the appeilant in the test jdentification par-ade, were in fact shown the appellant;:in the police station, they were aiso shoti/n the photograph of the appellant before the test identification paradei and therefore, credence could not have been 9iven to the test identification parade. He further submits that ther^ are material discrepancies between the statements of witnesses, who claimed that theycaught the appe!!ant in ShivnatK |Kice A'lill. Furthermore it is alieged that the appeliant was |<Bpt In the confinementin the bathroom for the whole night| and in !;! - ; ; the same night two murders had taken ; place Jri the 1 II 7. neighbouring rice mills, however, the murders were not discovered titl mornin9, which is highly irnprobable. The witnesses of memorandum (Ex.P-5) namely Deviai Yadav (PW- 5) & ShatruQhan (PW-5) have denied that the appellant gave any disclosure statement in pursuance of which wrist watch was allegediy seized and they have been declared hostiie. Even. seizure has not been proved and therefore, the recovery of wrist watch could not have been considered as a circumstance to convict the appellant. He further submits that another" circumstance heavity relied upon by the trial court is the recovery of poges of diary jfrom the spot, which belonged to the appetlant. Hotvever, in'the spot map (Ex.P- 47) pre-pared by the Investigating Officer, it i.s not mentione'd that the pagesof diary were lying there. !n faet, false evidence has been created in the shape of recouery of diary from the spot and recovery of wrist watch belongihg to the deceased at the instance of the appellant. In the aforesaid cir'cumstances, the defence of the oppeilant that he has been falsely implicatect in the crime in questibn was more probable. The chain of circumstances relied upon by the prosecution is not complete and the appellont deserves to be acquitted. On the other hond, learned Panel Lawyer for thei State submitted that the presence of appellant in the fateful night in Shivnath Rice Atill is es.tablished bythe eyewitnesses,whd caught him and confined him in |the bathroom througheut the night. Murder of Javerilal & Subhash took plac^ |in;tHe vicinity in the same night. Wh:en theappellant was ca^lght, he i'il '•':" i .:- I-' WQS putti|ng out the blood stained Ijartiyan and he Qdv^ fa\ae explanatidn that in faet, it was^paint. He' alsct told ifa ^e riaWie and further stated that is wa'tchman' in t;hej 1 ^ hearby ndustry, which was subsequent!y faund to be fatsej.|!i:Apart \ ^;' 7 ' ' from this the blood stained diary (Ex,P-23) recoverejd from the spot belonged to the appe!lant and specimen signatures of the appellant as also handui/riting of the appellantiin the o!d diary recovered from his house tallied with the handwriting of the pocket diary seized from thejspot! Aloreover, at the instance of the appellant wt'ist watch belonging to the deceased was a!so seized from the house of oppellant, in wihich the name of deceased Javerilgt was engraved and the same has been correctly identified by &haramchand (PW-10), brother of deceased. He also sulbmits that the chain of circumstances relied upon by the| trial court is complete in atl respect which est.ablishes the guilt of appellant beyond reasonable doubt. We have iheard Mr. R.K. Jain, learned counsel for the appellant and Mr. AkhilAlishra, Panel Lawyer on behalf of the State/respondent. So far as the circumstance that in the night of incident the appellant was caught in the premises of Shivnath Rice AAilt is, concerned, to establish this fact the prosecution has examined Kalikd Prasad Shrivastava (PW-8), watchman of Shivnath Rice Mill, who has stated that on the date of incident he was in night duty, he was sittin9With AAunnldl (PW-7),he spotted a man in a underwear & baniycin, who entered in the miil. Firstly he look him to be a worker, however, when he did not return, he suspec.ted that he mighlj be a thief and thereafter both of them went inside 1'hle mi 1 i and when they reached near the place, which was ^alled 'round chaini', they saw that the person who had enteneid the mill was coming outof 'round chalni', he run tpwflrd^ me> whereupon, he brandish a smal! c!ub, which he was h[fliii|ig, on 1.ll: :;' which he went towar'ds Munndlal and theFeafter bbfiitwere •\ \. 1 3 I; .i 10. 8 involved in scuffte. . He calied Deonath Mistry. When the said .pergon, who entered in the mill, saw alt of them, he| calnie9 down. On being asked by Munnalal, he told his n«me'a|s Subhash and that he is wor'king in neighboring mill. 1 Mfe nformed about the incident to the owner of mili, who asked him to tock him in the bathroom, whereupon, they locked him at about 12-1.00 a.m. in the bathrooni. In the morning, the owner of the millcame and m the meanwhile the persQn whom they had locked in the bathroom got an opportunity to free from there. However, this witness could not identify the Qppel!ant at the time of his examination. Statement of this witness is duly corroborated by PW-7 Munnalal, who has narrated identical focts as stated by PW-8. Munnalal (PW-7) has further stated that the person whom they have locked in the night of incident was the accused person present'in the Court. PW-6 Rajendra Kumar Kunwar & PW-9 Deonath, who were atso present when the appellant was caught in Shiivnath Rice Mill, have also established this fact that in the night of incident the appellant was caught in Shivnath Rice Mil! premises, he was locked in the bathroom, from where he fled away in the morning; So far as the tsst identification parade in the jail by PW-15 Shri 6.R. A^ahipat, Executive Magistrate isconcerned,,even if the test identification parade may not inspire confidence, as from the stQtement of these witnesses it has come thialt- they had seen the appeliant, they were shown photographiof the appellant before test identification parade and they had also an occasion to see him in the police station. NevertHeless, the fact remains that all these witnesses except PW{-;8 have duly identified the appellant and they have stated fljiat he was the person whom they have caught in the nj^ht of ncident in Shivnath ftice Mill. The evidence. given b^jthesa i—4- \ l.,l,.i L.. ^.s. \' Kt witnesses is substantive evidence with respect-to; the identity of the appelldnt and thus, the evidence has rilghtly been accepted by the triat court to arrive at a conclusion that in the night of incident the appeilant was present in Shivnath Rice Mill and in the vicinity of this miil two persons namely Subhash & Javerila! were murdered. 11. So far as the recovery of wrist watch on the memorandum of -appellant is concerned, bevlaj Yadav (PW-4) & Shatrughan (PW-5), witnesses of memorandum of seizure and recovery (Ex.P-6 & P-7) have tur-ned hostile and stated thaf the accused did not give any statement to ithe police in their presence nor he had handed over anything in their presence. However,. they have stated that wrist watch, clothing, Rs.400/- and slippers were recovered from the house of accused and in the seized wrist watch Javerllal was engF:aved. They have admitted that they signed in fwo papers on being asked by the police. In the cross-examination byl the prosecution they have- ^tated that they had gone to the house o'f the appellant from the police station along with accused Pramod. Accused had taken them to his house, he had taken out a wrist watch from his suitcase and gavelit to the police. Though statement of these witnesses do not nspire confidence, neyertheless, the investigating officer Shri Sanjay Pundir (PW-17), Sub Inspector, Police Stiation Lalbagh in Para' 7 of his statement has statad that on 10.3.1999 he recorded the memorandum of Pramod Sing|h|, who informed that he has kept wrist watch in his roorBjin Q suitcase and thereafter the wrist watch was seized dt the instance of appellant in presence of the witnejsses. Memorandum of Ex.P-6 and seizure memo of Ex.P-7pofi Nrist watch bears signatures of the appellant and the witn'esses have also appended their sjgnatures. If the gtatement o'i|tjiis_ \ 10 witness and the statements of PV/-4 &. PW-5 are cumulative!y read, we have no reason to disbelieve the statement oif Investjgating Officer regarding seizure of wrist watch ot the instance of the appeltant, as the witnesses have also stated this fact that they had not denied the signature over the memoranctum. T.hey have further gtated that the wrist wa-tch was seized from the house o.f the appellant. 12. So far as another circumstance being recovery of pocket diary of the appellant from the place of incident is concerned, the diary was taken into possession vide seizure memo of Ex.P-4, the witness of seizurei merno namely Sanjay Agarwal (PW-1) has stated that from the piace of incident one iron rod, pocket diary & bed-sheet were seized vide Ex.P- 4. Another otd diary ofthe appeiiant was seized from the: appellant vide Ex.P-5, specimen signatures of the appeliant were taken on six separate papers and these three ai-'ticles were sent to the handwriting expert, who examined the sent documents and gave hlsopinion vide Ex.P-45 & P-46 in| which he opined that the person who wrote the red enclosed writings stamped and marked as 51 to 518, also wrote tlhe red enc!osed writings similarly stamped and marked as QI| & Q2, This report has been duly proved by Shri R.C. Sharma (PW- 16} and the defence 'has not been able to bring anything in the cross-examination which discredits or makes the jreport given by this witness doubtful. I | 13, Thus, on the basis of aforesaid discussions we arej »f tKe: considered opinion that the circumstances relied upoh bythe! triai court for convicting the appellant under Sections 394 read iivith Section 397i&'Section 302 of the IPC is bdsed dn the evidence available on record and the circumstffnees have been duly proved independently. The chain of circumsf.ance so \ N81 B8 M!^ f^a EH S1 11 proved, uner"tiigly point towacds the guiit of the i appeltq|it an<l the learned trial court has not committed any illegatijtiy or irregularity in passing the impugned judgment. •} \ . ' ; 14. In the result, the appeal is without merit, same is lioble •t'o be dismissed and it is accordingly dismissed, Sd/- —- L.C.BHADOO /,' Judge / "\