Ajay @ Bhatiya Gupta vs State Of Madhya Pradesh

S.K. Gangele, J.

Appellant has filed this appeal against the judgment dated 12.10.1999 passed by Additional Sessions Judge, Begumganj in S.T. No.97/99. The

appellant and co-accused were convicted for commission of offences punishable under Sections 302/34 of IPC. The trial Court acquitted co-accused

Nitin Kumar @ Mintu Saxena and convicted the appellant for commission of offence punishable under Section 302 of the IPC and awarded sentence

of life with fine of Rs.2,000/-.

Prosecution story in brief is that the appellant and coaccused went outside with the deceased. They also visited betel shop, where they had eaten

betel. Thereafter, the appellant had taken a Khapcha from the shop, which was used by owner of betel shop. Thereafter, he had gone along with the

deceased. On the next day, dead body of deceased was found. There were numbers of injuries on the person of deceased. Father of deceased lodged

FIR at police station. He mentioned the fact in the FIR that he had suspicion that the appellant had killed the deceased. Police conducted investigation

and filed charge sheet against two accused persons.

The appellant abjured his guilt during trial and pleaded innocence. The trial Court held the appellant guilty for commission of offence and awarded

punishment.

Learned counsel for the appellant has contended that conviction of appellant is based on the circumstantial evidence. The evidence is not sufficient

to hold the appellant guilty for the offence. It is further submitted that evidence of Monu Sahu (PW-6) is not reliable because he himself was arrested

by police for sometime. The recovery of Khapcha is from open place. There is no evidence of any enmity between the appellant and deceased.

Hence, the trial Court has committed an error in holding the appellant guilty for commission of offence. In support of his contentions, learned counsel

for the appellant relied on the judgments of Majenderan Langeswaran Vs. State (NCT of Delhi ) and another (2013) 7 SCC 192, State of Haryana

Vs. Jagbir Singh and another (2003) 11 SCC 261 and Kishore Chand Vs. State of Himachal Pradesh (1991) 1 SCC 286.

Learned Govt. Advocate has submitted that there is sufficient evidence to convict the appellant. There is evidence of last seen of the appellant

with the deceased. The appellant had taken out a weapon which was used for killing the deceased. Same was identified by Monu Sahu (PW-6). Apart

from this, there was enmity between the appellant and deceased. The trial Court has appreciated the evidence properly and awarded a proper

sentence. In support of his contentions, learned Govt. Advocate relied on the judgments of Baskaran and another Vs. State of Tamil Nadu (2014) 5

SCC 765, Sansar Chand Vs. State of Rajashtan, (2010) 10 SCC 604, Dayal Singh and ors Vs. State of Uttaranchal, AIR 2012 SC 3046, C.

Muniappan & Ors. Vs. State of Tamil Nadu with D.K. Rajendran & Ors. Etc. Vs. State of Tamil Nadu, AIR 2010 SC 3718, Kiriti Pal Vs. State of

West Bengal with Durga Sutradhar Vs. State of West Bengal and Siddique Mia and anr. Vs. State of West Bengal and others, (2015) 11 SCC 178,

Kulvinder Singh and another Vs. State of Haryana (2011) 5 SCC 258 and Nizam and another Vs. State of Rajasthan (2016) 1 SCC 550.

Shankarlal (PW-1) father of the deceased deposed that at around 7 o’clock, I closed my shop. I had given Rs.20/- to my son Sonu. I slept at

the house and I awoke at around 3-4 o’clock in the night. Thereafter, I asked my son Hemant whereabouts of the deceased. He told me that Sonu

did not return back at the house in the night. In the morning, I searched Sonu at bus stand and also inquired from his friends and Mr. Ajay Gupta. At

around 1 o’clock Deepak Gupta told me that near the culvert, dead body of deceased was lying. I went on the spot and noticed the dead body.

Thereafter, I lodged the report at police station. I had belief that the appellant had killed the deceased because the appellant had relationship with

daughter of my brother Laxmi on this ground, there was enmity and quarrel between them for two times. He admitted his signature on Ex.P/3, which

is an FIR. The police prepared spot map Ex.P/6. He admitted his signature. On his cross-examination, he admitted the fact that there was friendship

and enmity between his son and the appellant.

Isnehlata Namdeo (PW-2) is mother of deceased. She deposed that I came to know that my son was killed. Thereafter, I went at the place of

incident. She further deposed that there was some enmity between the appellant and deceased. At the time of Dhanteras, the deceased came to me

and told me that the appellant had slapped him and he was trying to hit by stick.

Kumkum @ Banti (PW-3) deposed that the appellant and co-accused came at her house and they had taken the deceased with them. Her evidence

is not significant because she deposed in her crossexamination that her statement was recorded after a period of 1½ months by the police. Santosh

Kumar (PW-4) turned hostile. Jamuna Prasad (PW-5) also turned hostile.

Monu Sahu (PW-6) is an important witness. The trial Court has relied on this witness. He deposed that I had a betel shop at Bamhori Market. The

appellant Bhatiya Gupta, Sonu Namdeo and Mintu Saxena came there. They had taken betel and eaten the same. The appellant had taken out a large

seizure Khapcha from my shop and he had kept that Khapcha in his shirt. I asked him that where he is taking the Khapcha. He told me that he was

going to find out the bus at Bus Stand. I closed the shop at around 9 o’clock in the night. I was standing in market at around 10-10:15 o’clock.

The appellant came there. I requested him to return Khapcha. He told me that he would give the same in the morning. He also told me that he had

killed the deceased. Thereafter, he had taken cigarette from me. He further deposed that he did not tell the aforesaid fact to anybody out of fear. On

the next day, I was called to identify Khapcha at Panchyat Bhawan and I identified the same and signed identification memo Ex.P/9. In his cross-

examination, he admitted that police had called me along with other persons namely Santosh, Sharad, Madan, Sandeep and Pappu and kept us for 2-3

days in the police custody. On the next day, I told the police.

Khagendra (PW-7) is witness of seizure. He deposed that police seized plain earth and red earth from the spot before me vide seizure memo

Ex.P/10. Police also seized Khapcha from the spot vide seizure memo Ex.P/11 and I signed the same. He further deposed that earlier to the incident,

there were some hot talks between the appellant and deceased. Dharshan Singh (PW-8) is another witness of seizure. He deposed that police had

seized plain earth and red earth vide Ex.P/10 and Khapcha and stone vide Ex.P/11 and I signed the same. Bantu (PW9) turned hostile.

Prakash Vishnu (PW-11) is doctor, who performed postmortem of deceased. He deposed that on 11.2.1999, I performed postmortem of the

deceased and noticed following injuries on the person of his body:-

(1) Incised wound on the left upper arm 1/3rd on anterolateral aspect of left arm 2 cm x 1 cm 1 ½ cm. Margin sharp, edges clean cut elliptical in

shape.

(2) Incised wound on left middle arm 1/3rd on anterior aspect, size 3cm x 1.5 cm x 2cm margin sharp edges clean, elliptical in shape.

(3) Incised wound on anterior aspect of left middle arm 1/3rd, elliptical shape, margin sharp, edges clean cut, size 2cm x 1cm x 1cm.

(4) Incised wound on postero aspect of left shoulder, elliptical shape, margin sharp, edges clean cut, size 25 cm x 1cm x 1.5cm.

(5) Incised wound on medial aspect of left middle arm 1/3rd, size 1cm x ½cm x skin deep, elliptical, margin sharp, edges clean.

(6) Incised (penetrating) wound on left axillary, elliptic shape, margin sharp, edges clean cut, size 1.5 cm x ½ cm x 5 cm.

(7) Incised wound on left side of chest 4th intercostal space tending towards right, downwards obliquely placed 2.5 cm x ½ cm x 5 cm deep in lung

tissue, margin sharp, edges clean cut.

(8) Incised wound on left palm, below the thumb 1.5 cm x 1 cm x muscle deep margin, sharp edges, clean cut elliptical shape.

(9) Incised wound on left writ lateral aspect, margin sharp, elliptical in shape, edges clean cut size 3.5 cm x ½ cm x skin deep.

(10) Incised wound on left forearm, medial aspect, elliptical in shape margin sharp, edges clean cut size 2cm x ½ cm x skin deep.

(11) Incised wound on right lower costal margin, elliptical shape margin sharp, edges Clean cut size 2 cm x 1 cm x 5 cm.

(12) Incised wound chest slightly on mid line toward right side of the chest, elliptical shape margin sharp, edges clean cut size 2.5 cm x 1.5 cm x 8 cm,

deep in tissue obliquely placed below upward on right 6th rib (stab wound).

(13) Incised wound sternum 1 cm x ½ cm skin deep margin sharp, edges clean cut, elliptical shape.

(14) Incised wound on left side of thoracic cadges abdomen, elliptical in shape. Margin sharp, edges clean cut size of the wound is 2.5 cm x 1 cm x 4

cm.

(15) Incised wound on left hip, elliptical in shape, margin sharp edges clean cut size 1.5 cm x ½ cm x 2 cm.

(16) Incised wound on right wrist, posts medially placed, elliptical in shape. Margin sharp, edges clean cut size 2.5 cm x ½ cm x skin deep.

(17) Incised wound anterior aspect of neck on right side of trachea above thyroid cartilage size 1 cm x ½ cm x 1 cm, margin sharp.

(18) Incised wound neck anterior aspect on left side of trachea size 1.5 cm x 1 cm x 1 cm, elliptical in shape, margin shape, clean edge,

(19) incised wound on mid line of neck ant aspect, thyroid cartilage, margin sharp edges clean cut, elliptical in shape size 1.5 cm x ½ cm x 1 cm.

(20) Incised wound on right side of trachea on neck size 1.5 cm x ½ cm x 2.5 cm, margin sharp, edges clear cut.

(21) Incised wound on right side of mandibular region size 1.5 cm x ½ cm x 1.5 cm, elliptical shape, margin sharp, edges clean cut.

(22) Incised wound on right parotid region, elliptical shape, margin shape, edges clean cut size 1.5 cm x ½ cm x skin deep.

(23) Incised wound on left side of chin below lower lip size 2.5 cm x ½ cm x skin deep, margin sharp, clean elliptical shape, edges clean cut.

(24) Incised wound on left sub mandibular region, elliptical in shape, margin sharp, edges clean cut size 2.5 cm x ½ cm x 2 cm in oral cavity.

(25) Lac wound on right forehead starling form right side of forehead towards mid line above right eye size 9 cm x 3 cm x bone deep at right frontal

region of size 3 cm x hair line.

(26) Lac wound on left temple forehead size 3 cm x 2 cm x bone deep. On left temple of left temporal bone of 3 cm x hair line.

Broken glass pieces found in the wound, margin ragged.

(27) Incised wound on left side of forehead, elliptical in shape, margin sharp, edges clean cut size 2.5 cm x skin deep.

Deceased died due to injuries suffered by him. He further deposed that Station House Officer In-charge had sent Khapcha and sought my opinion that

whether the injuries sustained by deceased could be caused by Khapcha. I opined that injuries could be caused by aforesaid Khapcha. Mahesh

Chandra Jain (PW-13)Â deposed that Monu had identified Khapcha in the identification.

I.O. M.R. Narwariya (PW-10) deposed that on 10.2.1999, Shankarlal lodged the report at the police station. I had written the report vide Ex.P/3

and signed the same. Thereafter, I prepared spot map Ex.P/6 and signed the same. I seized Khapcha from the spot vide seizure memo Ex.P/11 and

plain earth and red earth vide seizure memo Ex.P/10 and signed the documents. On 10.2.1999, I recorded statement of Shankarlal and on 11.2.1999 I

recorded statements of Monu Sahu, Mukesh, Nilesh Saini and Rajesh and on 12.2.1999, Snehlata Namdeo, Gulab Bai Khagendra, Leelabai, Jamuna

Prasad and Santosh Sahu. Thereafter, the appellant was arrested on 12.2.1999.

The trial Court placed reliance on the evidence of Monu Sahu (PW-6) he specifically deposed as stated above that the appellant along with

another co-accused and deceased came to his shop. The appellant had taken a Khapcha from his shop. At around 10-10:15 o’clock, I asked from

the appellant to return back Khapcha, he told me that he would return the same in the next morning. He further stated that he had killed the deceased.

This is also a fact that this witness was arrested by the police and was taken into custody by the police along with other persons.

The Apex Court in case of Satish Nirankari Vs. State of Rajasthan (2017) 8 SCC 497 held as under:-

“It is now well established, by catena of judgements of this Court, that circumstantial evidence of the following character needs to be fully

established:

(i) Circumstances should be fully proved.

(ii) Circumstances should be conclusive innature. Crl.A. No. 1074 of 2007

(iii) All the facts established should beconsistent only with the hypothesis of guilt.

(iv) The circumstances should, to a moralcertainty, exclude the possibility of guilt of any person other than the accused (see State vs. Dr. Ravindra;

1992 (3) SCC 300); Chandrakant vs. State of Gujarat; (1992) 1 SCC 473. It also needs to be emphasised that what is required is not the quantitative,

but qualitative, reliable and probable circumstances to complete the claim connecting the accused with the crime. Suspicion, however grave, cannot

take place of legal proof. In the case of circumstantial evidence the influence of guilt can be justified only when all the incriminating facts and

circumstances are found to be not compatible with the innocence of the accused or the guilt of any other person.

The following tests laid down in Padala Veera Reddy vs. State of A.P.1 also need to be kept in mind:

“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 beof 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 e consistent with

the guilt of the accused but should be inconsistent with his innocence.â€​

Sir Alfred Wills in his 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 theparty who asserts the existence of any fact, which infers legal accountability;

(3) in all cases, whether of direct orcircumstantial evidence, the best evidence must be adduced with the nature of the case admits;

(4) in order to justify the inference ofguilt, 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 by any reasonable doubt ofthe guilt of the accused, he is entitled as of right to be acquitted.â€​

Shankarlal (PW-1) father of appellant has deposed that there was enmity between the appellant and deceased because the appellant had affair

with daughter of his brother. Other witnesses also deposed including mother of the deceased that previously there was some scuffle between the

appellant and deceased. Khapcha was seized from an open place. It was identified by Monu Sahu (PW-6). Monu Sahu (PW-6) has specifically

deposed that appellant was the person, who had taken out a large seizure from his shop and at that time, deceased was with him. Thereafter, after

1½ hours appellant returned back again and met with Monu (PW-6) and confessed that he had killed deceased. Apart from this, Khapcha was

seized from the spot. Although there was delay of one day in recording the statement of Monu Sahu (PW-6). However, on this basis, his evidence

cannot be held unreliable. The trial Court has appreciated the evidence properly. Looking to the evidence on record, in our opinion, conviction of the

appellant is proper. The trial Court has awarded a proper sentence. We do not find any merit in this appeal. Accordingly, appeal is dismissed.

The appellant is on bail. His bail bonds stand cancelled. He is directed to surrender before the concerned trial Court immediately to undergo the

remaining jail sentence, failing which the trial Court shall take appropriate action.

Copy of the judgment be sent to the trial Court alongwith the record for information and necessary compliance.