Ajit Kumar vs State Of Madhya Pradesh

CONVICTION,SENTENCE

U/s 460 IPC,"RI for 5 years and fine of Rs.1000/-. In

default further RI for 2 months

U/s 392/397 IPC,"RI for 7 years and fine of Rs.1000/-. In

default further RI for 2 months

U/s 302 IPC,"RI for life and fine of Rs.1000/-.

In default further RI for 1 month

U/s 25 of the Arms Act,"RI for 1 year and fine of Rs.500/-. In

default further RI for 15 days

U/s 27 of the Arms Act,"RI for 3 years and fine of Rs.500/-. In

default further RI for 15 days

relevant to prove a case of homicide would be equally relevant to prove a case of suicide.,

(5) Where the main evidence consists of statements and letters written by thedeceased which are directly connected with or related to her death and,

which reveal a tell-tale story, the said statement would clearly fall within the four corners of Section 32 and, therefore, admissible. The distance of",

time alone in such cases would not make the statement irrelevant.,

By way of circumstantial evidence, the prosecution has relied upon two main genres of circumstances. First one is that Pappu @ Babulal (PW-8)",

had seen the appellant entering the house of the deceased at the time of the incident and Virsan (PW-3) had seen appellant departing therefrom.,

Second genre of evidence is that on the disclosure statement made by appellant, some pieces of gold jewelry, which were identified as those belonging",

to the deceased, were seized from the possession of the appellant.",

Pappu @ Babulal (PW-8) has stated that a day beforethe festival of ""Raksha Bandhan"", Kusumrani, wife of Suresh Chand Jain, had expired. At",

about 07:45 p.m. on the date of the incident, he had seen appellant Ajit Jain opening the shutter of the house of the deceased. At that time, he was",

returning home from his work. His son was suffering from pneumonia; therefore, he had left for Damoh the same night for his treatment. Virsan",

(PW-3) has stated that on the date on which deceased Kusumrani was murdered, he had gone to the market at about 07:00 p.m. While he was",

returning from the market at about 08:15 p.m., he had seen appellant coming out of Suresh Chand Jain's house. Thereafter, the appellant met him on",

the road situated behind the house of Suresh Chand Jain. The same road takes him from market to his house. At that time, the appellant was wearing",

a yellow scarf and had in his hand, a sack bearing the logo of 'Ghadi Detergent'. When he asked the appellant as to why he had gone there, the",

appellant had told him that he had gone there for some work. After about 5-6 days, he learnt that Kusumrani had been murdered and Priest",

(appellant) had been arrested. Thereafter, he told the people that a day before 'Raksha Bandhan', he had seen the priest leaving the house of the",

deceased. About 10 or 12 days after the date of the incident, the police had called him for interrogation.",

In this regard, learned counsel for the appellant submits that the incident took place on 27.08.2007; whereas, the statements of aforesaid two",

witnesses namely Virsan (PW-3) and Pappu @ Babulal (PW-8) under Section 161 of the Code of Criminal Procedure had been recorded on,

10.09.2007 and there is no explanation of this inordinate delay available on record; therefore, the trial Court erred in placing reliance upon the",

statements of these two witnesses.,

It is true that the police statements of aforesaid two witnesses were recorded after a delay of about 13 days; however, the Supreme Court has",

held in the case of State of Uttar Pradesh vs. Satish, AIR 2005 SC 1000 that:",

As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically",

asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as a rule,

of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon,

several factors. If the explanation offered for the delayed examination is plausible and acceptable and the court accepts the same as plausible, there is",

no reason to interfere with the conclusion (See Ranbir and others v. State of Punjab, (AIR 1973 SC 1409), Bodhraj alias Bodha and others v. State of",

Jammu and Kashmir, (2002 (8) SCC 45) and Banti alias Guddu v. State of M.P., (2004) (1) SCC 414).""",

It may be noted here that no question with regard to delay in recording the statements of Virsan (PW-3) and Pappu @ Babulal (PW-8) has been,

asked in cross-examination from Investigating Officer Inspector K.K. Agrawal (PW-14). At any rate, Pappu @ Babulal has explained in his",

statement that he had left for Damoh for treatment of his son on the night of the incident. Thus, the delay in recording his statement under Section",

161 of the Code of Criminal Procedure stands explained. Likewise, Virsan (PW-3) has stated that about 5 or 6 days after the date of the incident, he",

learnt that Kusumrani had been murdered; therefore, he told the people that he had seen the appellant coming out of the house of the deceased on the",

fateful evening. Thereafter, the police may have learnt about the same through its source and statements may have been recorded 13 days later. In",

these circumstances, particularly in the circumstance where no question at all was asked regarding delay in recording the statements of aforesaid",

witnesses under Section 161 of the Code of Criminal Procedure, the statements of aforesaid two witnesses cannot be disbelieved. The trial Court has",

considered the statements of these two witnesses in paragraphs nos. 15, 16, 17, 18, 19, 20, 21 and 22 of the judgment and has properly considered",

every aspect of the statements of these witnesses. After due deliberation, the trial Court has placed reliance on the testimony of aforesaid two",

witnesses. This Court finds no ground to deviate from the view taken by the trial Court.,

The next genre of evidence relied upon by the prosecution is recovery of incriminating articles from the accused on disclosure statement made by,

him. Immediately after lodging of first information report at 09:30 p.m. on the date of the incident, the Investigating Officer had reached the scene of",

the crime. Inspector K.K. Agrawal (PW-14), the investigating officer, has stated that he had seized blood smeared pieces of glass bangles, a broken",

tooth, two tiny nuts of ornaments worn in the ear made of yellow metal, one nut of yellow metal which is applied behind the neck-lace for securing it",

to the neck from the spot. Both the nuts were lying on the cemented floor of the room wherein the dead body was found. From another room of the,

house of the deceased, he had seized 20 ""Gurias"" of the necklace which were lying on the floor. He had prepared seizure memos (Ex.P/10 and P/11)",

in this regard.,

Pinki Jain (PW-2), who is daughter-in-law of the deceased, has stated that she had returned from her maternal home at Tejgarh on the night of the",

incident. She had seen that small tops worn in the ear and small a 'Mangal Sutra' usually worn by her mother-in-law, were missing from the dead",

body. This witness has further stated that appellant had gone to their house before the date of the incident for performing 'Puja'. On that occasion, he",

had left behind a saffron coloured scarf at their house; however, after the incident that scarf was also missing from the house. Inspector K.K.",

Agrawal (PW-14) has stated that on 30.10.2007 he had taken the appellant in custody and had interrogated him. He had recorded his memorandum,

(Ex.P/5). He had seized one sharp edged baka with blood stains and which was 18.7 inches long with length of the metallic part being 14 inches long,",

one pair of slippers, four leaf-like pieces of gold, one saffron scarf with yellow ""jari"" border, indigo coloured full-pant with blood stains, a gray coloured",

full sleeved shirt, one rexene bag with logo of 'Ghadi Detergent' printed on it, and one pair of gold tops from the possession of the appellant.",

In the FSL report (Ex.P/20), blood was found on the pant and shirt seized from the possession of the appellant; however, its origin or blood-group",

could not be ascertained because they had disintegrated.,

The gold tops and four leaf like pieces of golden jewelry seized from the possession of the appellant, were identified by Pinki Jain (PW-2),",

daughter-in-law of the deceased, as those belonging to her mother-in-law during the identification proceeding conducted by Executive Magistrate. In",

this regard, Executive Magistrate D.N.Tiwari (PW-6) has stated that he had conducted identification proceeding and had prepared identification",

memo (Ex.P/3). During the proceedings, Pinki Jain had identified the pieces of ornaments belonging to her mother-in-law from amongst other pieces",

of ornaments which were mixed therewith.,

In this regard, learned Government Advocate for the respondent/State submits that one nut of 'Mangal Sutra' and another nut of tops were seized",

from the spot. Some parts of 'Mangal Sutra' and the tops were seized from the possession of the appellant on the disclosure statement made by him,

under Section 27 of the Evidence Act. Pinki Jain, daughter-in-law of the deceased, had identified the tops and pieces of 'Mangal Sutra' during the",

identification proceeding. Thus, one part of piece of jewelry was seized from the spot and other part of the same piece of jewelry was seized from the",

possession of the appellant, which proves beyond reasonable doubt that the appellant and none else had robbed the deceased of aforesaid pieces of",

jewelry and in order to commit the robbery had caused injuries with a deadly weapon baka which resulted in her death.,

Learned Government Advocate for the respondent-State further submits that corroboration is provided by the fact that appellant had left behind his,

saffron scarf in the house of the deceased a few days before the date of the incident when he had gone there to perform 'Puja'. That scarf was,

missing from the house after the incident. Virsan (PW-3) had seen the appellant coming out of the house of the deceased wearing that scarf. Another,

supporting circumstance is that appellant was seen by witness Virsan (PW-3) going from the house of the deceased carrying a sack bearing the logo,

of 'Ghadi Detergent'. The same was seized on the disclosure statement made by the appellant.,

In this regard, learned counsel for the appellant submits that seizure of allegedly incriminating articles was made from an open place behind the",

house of the appellant; therefore, no adverse inference can be drawn against the appellant. It is clear from the memorandum of the appellant (Ex.P/5)",

that he had buried aforesaid incriminating articles in the land behind his house. As such, even if the articles were in a place which might have been",

accessible to others, it is obvious that they were in an invisible state. In this regard, the Supreme Court has held in the case of State of Himachal",

Pradesh Vs Jeet Singh, AIR 1999 SC 1293, AIR 1999 SC 1293, that 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 on the main road-side 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 into 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.,

Thus, the argument advanced by learned counsel for the appellant in this regard is not acceptable. This aspect of the matter has been dealt with",

by the learned trial Court in the impugned judgment and no ground has been made out before this Court to persuade us to take a different view.,

As such, the prosecution has succeeded in proving following links in chain of circumstantial evidence beyond reasonable doubt:",

(i) Pappu @ Babulal (PW-8) had seen the appellant entering the house of deceased Kusumrani, when she was alone at home at about the time and",

date of the incident.,

(ii) Virsan (PW-3) saw appellant coming out of the house of the deceased, the same evening. About an hour thereafter Rajendra, son of deceased",

Kusumrani, entered the house and discovered his mother Kusumrani lying in a pool of blood.",

(iii) Dr. Sanjeev Gupta (PW-11), who conducted post-mortem examination upon the deceased, found deep, cut wounds on the neck and temple region",

of the deceased and in his opinion, the deceased had died a homicidal death due to excessive hemorrhage from aforesaid wounds.",

(iv) The Investigating Officer had seized two nuts of the pieces of jewelry used for fastening them to neck and ear respectively, from the spot .",

(v) The remaining parts of the jewelry were seized from the possession of the appellant upon a disclosure statement made by him.,

(vi) A saffron scarf, which the appellant had forgotten on his earlier visit to deceased Kusumrani's house, was found missing after the incident. Virsan",

(PW-3) saw the appellant wearing that scarf, while he was coming out of the house of the deceased in the evening of the incident. Aforesaid scarf",

was later seized from the possession of the appellant on the disclosure statement made by him.,

In the opinion of this Court, aforesaid links, firmly established, constitute a complete chain of circumstances, pointing unerringly towards the guilt of",

the accused. In aforesaid circumstances, on the basis of circumstantial evidence, it is obvious that it is only the appellant and none else, who had",

committed lurking house-trespass after the sunset and before the sunrise in the house of the deceased while she was alone and had robbed her of the,

pieces pieces of ornaments and in the process had inflicted fatal blows with the sharp edged weapon baka causing death of the deceased. As such,",

the trial Court committed no error in convicting the appellant under Sections 460, 302, 392 and 397 of the IPC and Section 25(1-B)(b) and 27 of the",

Arms Act. In aforesaid view of the matter, no case is made out for interfering with the judgment of conviction.",

Accordingly, this criminal appeal fails. The conviction of appellant Ajit Kumar Jain for offence punishable under Sections 460, 302, 392, 397 of the",

Indian Penal Code and Sections 25 and 27 of the Arms Act recorded by judgment dated 14.03.2008 passed by the Court of Sessions Judge, Damoh in",

Sessions Trial No.212/2007 and the sentence imposed upon him is hereby affirmed.,