Balloo @ Balram Kahar vs State Of Madhya Pradesh

Conviction,,Sentence,,

Section,Act,Imprisonment,Fine,In default of fine

394,Indian Penal Code,R.I. for 10 years,"Rs. 2,000/",R.I. For 1 year

302,Indian Penal Code,"Imprisonment for

life","Rs. 1,000/",R.I. For 1 year

201,Indian Penal Code,"R . I . for

Imprisonment

life","Rs. 2,000/",R.I. For six months

He also saw the appellant at some distance at his field.,,,,

Learned Government Advocate contended that this evidence is sufficient to establish the ‘last seen theory’ against the appellant. We are,,,,

not inclined to accept this contention because only Bhura Rajput (PW-9) stated that he has seen the appellant only but he did not see Indo Bai with the,,,,

appellant lastly. Therefore, the testimony of Bhura Rajput is not sufficient to establish the ‘last seen theory’ of the appellant and the deceased.",,,,

Further, in case of Kishore Bhadke vs. State of Maharashtra (2017) 3 SCC 760, it was held that inference can be drawn from last seen together,",,,,

once the same is established. However, circumstance of last seen together does not by itself necessarily lead to inference that it was accused who",,,,

committed the crime but there must be something more to connect accused with crime and to point out guilt of accused and none else.,,,,

The involvement of the appellant with the crime is mainly based on the recovery of silver anklets (kade) according to his memorandum under,,,,

Section 27 of the Evidence Act. In this regard, Lakhanlal (PW-2)/son of the deceased stated that when the dead body of the decease was recovered",,,,

from the bushes, her anklets were missing from her legs. This fact is also corroborated from the testimony of Ram Mohan (PW-4). Ram Mohan",,,,

(PW-4) stated that after lodging the report, Devendra @ Deviram Sahu (PW-8) informed him that one taxi conductor had told Deviram that a boy told",,,,

him “chandi ki kadia rakhwa doâ€. On receiving the said information, Lakhanlal went to the jewelry shops to confirm this fact. This testimony is",,,,

also corroborated by Devendra @ Deviram Sahu (PW-8).,,,,

Deviram Sahu (PW-8) personally heard the conversation between one Govind and Vikram about the looted silver anklets (kade). He saw one boy,,,,

who wanted to sell the aforesaid silver anklets. But Devendra (PW-8) did not suspect that the boy may be a culprit. On the next day, he told about the",,,,

incident to Ram Mohan and Kamal and instructed them to find out.,,,,

Another material witness is Devendra @ Guddu Chouhan (PW-10) who deposed that along with Daddu Bhaiya, he went to drink tea at the",,,,

square. Appellant came there and told them that his father was ill, hence, he had to sell the silver anklets (kade) belonging to his mother. Then",,,,

Devendra @ Guddu took him to Ramakant Soni (co-accused) who refused to take the aforesaid anklets. Hence, Daddu Bhaiya gave Rs. 2500/- to the",,,,

appellant and assured him that he will come after two days to take the anklets back. At that time, the anklets were kept by Daddu Bhaiya (PW-1).",,,,

Daddu Bhaiya (PW-1) corroborated the aforesaid contention. He deposed that he believed the story of the appellant and have him Rs. 2,500/- for",,,,

the treatment of his father. When he heard about the incident with the deceased. He gave silver anklets (kade) to the police. This evidence establish,,,,

that just after the incident, the anklets of the deceased were in possession of the appellant.",,,,

The identification parade conducted by the Nayab Tehsildar Smt. Alka establish that the aforesaid anklets was identified by her son and one Bhura,,,,

Rajput. We do not find any weakness or lacuna with regard to the identification of the looted property.,,,,

Bhura Rajput (PW-9) and Lakhanlal (PW-2) duly corroborated the evidence of Nayab Tehsildar. Ravikant Soni (PW-14) is the goldsmith who,,,,

identified the appellant and deposed that after the incident the appellant came to him. He had silver anklets (kade) of about 300 grams. He wanted to,,,,

pledge it before him. He asked from the appellant about his identification and also asked from him as to whether he found the aforesaid anklets.,,,,

Appellant informed that the said anklets was purchased by him for his mother who is ill, hence he wanted to pledge the aforesaid anklets and get some",,,,

mondy from the goldsmith. Then Ravikant said to call some person who is known to the appellant for identification. One Guddu Chouhan came with,,,,

the appellant and stated that he knows the appellant. Even then, Ravikant refused to take the said kade because Guddu Chouhan said that the",,,,

appellant belonged to Sangakheda while the appellant had told Ravikant that he lived in Chourahat. Ravikant (PW-14) identified the said silver anklets,,,,

which were found in the possession of the appellant by him and Daddu Bhaiya (PW-1) and Devendra. From his cross-examination also, it is",,,,

established that the appellant came to him for pledging the silver anklets hence, we do not find any ground to disbelieve the case that two silver anklets",,,,

which belonged to the deceased were seen with the appellant. Hence, burden lies on the appellant to offer explanation about possession of such looted",,,,

properties from the deceased. In his accused statement under Section 313 of Cr.P.C. he did not offer any explanation about the possession of the said,,,,

anklets which belongs to the deceased.,,,,

Smt. Savita Choudhary (PW-15) explained that the dead body was found at Sangakheda on the field of Mahesh Shukla. In paragraph 12, she",,,,

explained that the appellant was residing at Sangakheda. On 11.06.2008, she arrested the appellant before the witnesses Ram Mohan (PW-4) and",,,,

Bhura Rajput (PW-9). The appellant gave the memorandum that both the silver anklets (kade) were pledged by him for Rs. 2,500/-before Dadu",,,,

Bhaiya. Rs. 600/- were spent by him for his personal use and remaining Rs. 1150/- Rs. were kept in a wallet and hidden in a pit filled with sand.,,,,

From the evidence of Smt. Savita Choudhary (PW-15) Investigating Officer, Daddu Bhaiya (PW-1) and Ravikant (PW-14), the memorandum of",,,,

the appellant is duly proved against the him. According to his memorandum, police recovered all the things. This act of the appellant also indicate his",,,,

dishonest intention and establish that he got the silver anklets of the deceased by wrongful means. Why he went to sell the silver anklets and kept the,,,,

consideration amount with him which in a pit filled with sand by him. No explanation was offered by the appellant to this act. During the accused,,,,

statement appellant never claimed that the aforesaid anklets belong to his mother nor he stated the source of receiving the aforesaid anklets.,,,,

Therefore, under Section 114 of the Evidence Act adverse inference can be drawn against him. In such circumstance, the learned trial Court after",,,,

following the principle laid down by the Hon’ble Supreme Court in case of Gulabchand vs. MP Rajya AIR 1995 (SC) 1598 held the appellant,,,,

guilty for committing offence punishable under Section 302, 394 and 201 of IPC",,,,

Whereas, in case of Dhan Raj vs. State of Haryana (2014) 6 SCC 745, the Hon’ble Supreme Court has held that, recovery of an object is not",,,,

a discovery of fact. Even if recovery of stolen/robbed articles is reliable even then it does not establish that accused committed murder and only,,,,

admissible fact which can be inferred is that accused was in possession of stolen goods. Where the only circumstances may indicate that theft/robbery,,,,

and murder might have been committed at the same time, it is not safe to draw an inference that person in possession of stolen property had",,,,

committed murder.,,,,

In case of Kishore (supra), the Hon’ble Supreme Court observed that in the aforementioned case the contention of Accused 6 that even he",,,,

had failed to offer any valid explanation regard possession of gold ring of deceased, he could at best be proceeded for the offence punishable under",,,,

Section 411 of IPC and not for the offence of murder.,,,,

Hence, in the light of the above principles laid down by the Hon’ble Supreme Court, we find that there is sufficient evidence on record, to",,,,

convict the appellant under Section 411 of the IPC dishonestly keeping stolen property and trying to sell it. So far as offence punishable under Sections,,,,

302, 201 and 394 of IPC is concerned, there is no evidence against the appellant. Looking to the other circumstances, mere recovery is not sufficient",,,,

to convict the appellant for the aforesaid offence.,,,,

In case of Kuna @ Sanjaya Behera vs. State of Odisha, AIR 2017 SC 5364, the Hon’ble Supreme Court has observed as under :",,,,

‘With reference to Section 3 of the Evidence Act, which defines “provedâ€, “disproved†and “not provedâ€, this Court in Lokeman Shah",,,,

and another vs. State of West Bengal 10 recalled its observations in M. Narsinga Rao vs. State of A.P., 2001 Crl.L.J. 515 as hereinbelow:",,,,

“A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable",,,,

that a prudent man ought under the circumstances of a particular case, to act upon the supposition that it exists, (vide Section 3 of the Evidence Act).",,,,

What is required is materials on which the court can reasonably act for reaching the supposition that a certain fact exists. Proof of the fact depends,,,,

upon the degree of probability of its having existed. The standard required for reaching the supposition is that of a prudent man acting on any important,,,,

matter concerning himâ€​.’,,,,

In view of the discussion in the foregoing paragraphs, in our opinion, it is apparently clear that the learned trial Court has wrongly convicted the",,,,

appellant under Sections 394, 302 and 201 of IPC only on the basis of presumption and suspicion.",,,,

Accordingly, this appeal is partly allowed. The conviction and sentence of the appellant under Sections 394, 302 and 201 of IPC is set aside.",,,,

However, appellant is held guilty for committing offence under Section 411 of the Indian Penal Code. He is awarded sentence of 3 years rigorous",,,,

imprisonment with fine on Rs. 5,000/-. In case of default of payment of fine, further RI for one year.",,,,

Appellant is in jail since 11.06.2008. He has already completed jail sentence of more than 10 years. He be released forthwith, if not required in any",,,,

other case.,,,,

Copy of this judgment be sent to the Court below for information and compliance alongwith its record.,,,,