Mataprasad and another vs State of Madhya Pradesh

Vivek Agarwal, J.

This Criminal Appeal has been filed by the appellants under Section 374 of Cr.P.C. being aggrieved by judgment of conviction and sentence

dt.27.08.20004 passed by the court of Special Judge (Dacoity) Bhind in Special Case No.38/2004 convicting the the appellants under Section 364-A

and 302 of IPC and sentenced to Life Imprisonment and fine of Rs.5,000/- each and in default of payment of fine, 3-3 years additional R.I. Similarly,

they have been convicted under Section 201 of IPC with seven years R.I. and fine of Rs.2,000/- each and in default of payment of fine, one year

additional R.I. Both the sentences were directed to run concurrently.

Prosecution case in short is that on 23.11.2003, deceased Brajmohan Sharma alongwith his father and grandfather had visited Surpura to attend

public meeting of Former Central Minister and after returning from such public meeting at about 5.00 p.m. had arranged for fodder etc. for buffaloes

and had gone towards the public road. It is alleged that from there accused Mataprasad had taken the deceased to his residence with an alibi to treat

some skin infection (fungal infection) and thereafter called his father to pay the ransom. When ransom could not be arranged, deceased Brajmohan

was murdered.

When deceased Brajmohan had not returned to his house on the date of incident, then FIR (Ex.P/13) was recorded by the complainant Ashok

Kumar Sharma at Police Station and thereafter Ashok Sharma started receiving phone calls from some unknown persons demanding ransom of Rs. 3

lakhs but when Ashok Sharma expressed his inability to pay the huge sum of ransom, then amount of ransom was bargained to Rs.2.5 lakh but when

complainant Ashok Sharma asked caller to permit him to talk to his son, then deceased was never connected to the complainant. In the meanwhile,

complainant had informed S.P. Bhind regarding such demand of ransom when telephone numbers of complainant were put on watch and calls were

tapped. As per (P.W.12) referring to Ex.P/5, P/6 and P/7, it was revealed that calls were being made from a mobile number and on the basis of such

mobile communication it was traced that such mobile phone was belonging to one Ramsingh Sikarwar. This Idea number when was scanned revealed

that maximum calls were made to one Lakhan Singh S/o Shri Deenanath Kushwah R/o Morena, therefore, Lakhan Singh was investigated and he

revealed that in fact the phone was though in the name of one Sikarwar but it was being used by the accused Mataprasad on the basis of which

Mataprasad was arrested from Morena and memorandum under Section 27 of the Evidence Act was prepared. Burnt bones of the deceased

Brajmohan Sharma were recovered from a Bamba vide Ex.P/14, Panchnama and on the disclosure of Mataprasad clothes of the deceased

Brajmohan were recovered. FSL report was obtained on the basis of confiscated bones and according to such FSL report (Ex.P/23), the bones were

of some person, who was a male between the age of 20-25 years. Thereafter charge sheet was filed on 17.05.2004. Charges were framed under the

provisions of Section 364-A/34, 302/34, 201/34 IPC read with Sections 11/13 of the M.P.D.V.P.K. Act.

Appellants abjured their guilt, therefore, trial was conducted.

It is the contention of the learned counsel for the appellants that appellants are innocent and they have been falsely implicated. It is submitted that

P.W.6, S.K.Vimal, JTO in his cross examination has admitted that telephone No.287551 and 234019 are landline numbers but he is not aware as to

whom these numbers belong. It is also submitted that he is not aware as to who is the author of the calls which were received on the aforesaid

landline numbers. For this purpose, he was required to go through the complete office record. Placing reliance on such statement of P.W.6, it is

submitted that he has failed to prove Ex.P/5, Ex.P/6 and Ex.P/7.

It is also submitted that as per Ex.P/21, I.O. initiated investigation on the premise that accused had killed Brajmohan by giving injection but this

hypothesis has not been taken to logical end and has been given up by the I.O. It is also submitted that no DNA test was performed on the bones so

recovered to point out that they are the bones of the deceased Brajmohan. In view of such shaky evidence, conviction could not have been recorded.

It is further submitted that in view of the statement of P.W.6 S.K.Vimal, JTO, demand of ransom does not stand proved and therefore has to be

discarded. It is also submitted that suspicion may howsoever grave will not take place of proof.

It is further submitted that appellant No.2 is innocent and has been falsely implicated. It is further submitted that Appellant No.2 has been framed

on the statement of Kantho Bai (P.W.8) but she has admitted in her cross examination that she never saw appellant No.2 cleaning and plastering the

Bamba from where allegedly bones were recovered.

Reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Sujit Biswas Vs. State of Assam as reported in (2013) 12

SCC 406

“22. Whether the abscondance of an accused can be taken as a circumstance against him has been considered by this Court in Bipin Kumar

Mondal v. State of West Bengal AIR 2010 SC 3638, wherein the Court observed:

“27. In Matru alias Girish Chandra v. State of U.P., AIR 1971 SC 1050, this Court repelled the submissions made by the State that as after

commission of the offence the accused had been absconding, therefore, the inference can be drawn that he was a guilty person observing as under:

 ‘19. The appellant's conduct in absconding was also relied upon. Now, mere absconding by itself does not necessarily lead to a firm conclusion of

guilty mind. Even an innocent man may feel panicky and try to evade arrest when wrongly suspected of a grave crime such is the instinct

of self- preservation. The act of absconding is no doubt relevant piece of evidence to be considered along with other evidence but its value would

always depend on the circumstances of each case. Normally the courts are disinclined to attach much importance to the act of absconding, treating it

as a very small item in the evidence for sustaining conviction. It can scarcely be held as a determining link in completing the chain of circumstantial

evidence which must admit of no other reasonable hypothesis than that of the guilt of the accused.In the present case theÂ

appellant was with Ram Chandra till the FIR was lodged. If thereafter he felt that he was being wrongly suspected and he tried to

keep out of the way we do not think this circumstance can be considered to be necessarily evidence of a guilty mind attempting to evade justice. It is

not inconsistent with his innocence.’

Abscondence by a person against whom FIR has been lodged, having an apprehension of being apprehended by the police, cannot be said to be

unnatural. Thus, in view of the above, we do not find any force in the submission made by Shri Bhattacharjee that mere absconding by the appellant

after commission of the crime and remaining untraceable for such a long time itself can establish his guilt. Absconding by itself is not conclusive either

of guilt or of guilty conscience.â€​

While deciding the said case, a large number of earlier judgments were also taken into consideration by the Court, including Matru (supra); and State

of M.P. thr. CBI & Ors. v. Paltan Mallah & Ors., AIR 2005 SC 733.

Thus, in a case of this nature, the mere abscondance of an accused does not lead to a firm conclusion of his guilty mind. An innocent man may

also abscond in order to evade arrest, as in light of such a situation, such an action may be part of the natural conduct of the accused. Abscondance is

in fact relevant evidence, but its evidentiary value depends upon the surrounding circumstances, and hence, the same must only be taken as a minor

item in evidence for sustaining conviction. (See: Paramjeet Singh @ Pammma v. Statte of Uttarakhand, AIR 2011 SC 200; and Sk. Yusuf v. State of

West Bengal, AIR 2011 SC 2283).

Similarly, merely abscondance of appellant No.2 will not prove her guilt. It is further submitted that in fact Daaudayal Srivastav (P.W.5) is the only

independent witness and all other witnesses are related to each others. It is submitted that theory of last seen has been developed by I.O. on the basis

of the statements of Daaudayal Srivastav (P.W.5), who has deposed that on the date of incident, when Brajmohan was abducted, he was sitting on his

gate and at about 6 p.m. he had seen Brajmohan standing on vegetable cart of Deendayal. Mataprasad was also standing close to Brajmohan and was

talking to him and thereafter Brajmohan and Mataprasad both had left the seen of incident. It is submitted that admittedly Daaudayal Srivastav

(P.W.5) had seen the deceased with Mataprasad on 23.11.2003, whereas he has admitted in his cross examination that police had taken his statement

after about two months of the incident of missing of Brajmohan. He has further admitted that he was aware of the fact that family members and

relatives of Brajmohan were searching of him from that very date but he had not informed anybody that on the fateful day he had seen Deendayal and

Mataprasad standing close to place of incidence. Thus, it is submitted that Daaudayal Srivastav (P.W.5) is not a reliable witness of last seen.

It is further submitted that Lakhan Singh is the person from whom it was discovered that the Idea Cellular network phone was in possession of

Mataprasad and he was making calls from such phone but prosecution has not examined him. In this backdrop, it is submitted that appellants are

innocent and they have been falsely implicated because of family dispute between the brothers and sisters of the present appellant .

It is submitted that since Lakhan Singh has not been examined by the I.O., though he was obliged to do so, mere recovery of certain bones on the

basis of memorandum under Section 27 of the Evidence Act is not sufficient to record guilt of the appellants.

It is also submitted that Lakhan Singh is the star witness of the prosecution, inasmuch as on the basis of statement of Lakhan Singh, I.O. had

reached to the appellant No.1 and therefore it was necessary for the I.O. to have examined Lakhan Singh. It is also submitted that Ex.P/23 has been

proved by S.S.Pandey (P.W.12) but Dr.D.S.Badkur in his opinion (Ex.P/23) has categorically mentioned that cause of death could not be ascertained

and remains open, to be ascertained from circumstantial evidence. It is also mentioned that duration of death could not be ascertained. On the basis of

such information, it is submitted that when cause of death remains uncertain, that means that it can not be said that whether death was homicidal or

not, and therefore, charge under Section 302 of IPC could not have been sustained against the appellant. In fact chain of circumstantial evidence is

incomplete.

It is also submitted that S.S.Pandey (P.W.12) has categorically mentioned that at the instance of Lakhan Singh, he had reached up to Mataprasad

and had recovered his Nokia Mobile vide Ex.P/18. Witness to recovery is Rajkumar Sharma (P.W.11), who is not an independent witness but a police

constable. It is submitted that there were no independent witnesses to such seizure of mobile from Mataprasad and therefore absence of independent

witness in regard to seizure of mobile makes the seizure doubtful. It is also submitted that memorandum under Section 27 vide Ex.P/25 about recovery

of bones has been prepared vide which Mataprasad admitted committing murder of Brajmohan Sharma and burning of his body and throwing of bones

in a polythene on 25.11.2003. Similarly, another memorandum (Ex.P/11) has been prepared vide which bones of the deceased were recovered from

temporary room situated at Chidiyapura Bada. Memorandum (Ex.P/12) was prepared to recover clothes of the deceased. It is submitted that

witnesses to these memorandums are Kamlesh Sharma, Sahaytaram Sharma and Ramavtar. Sahaytaram Sharma is P.W.9 and Ramavtar Sharma is

P.W.10. Kamlesh Sharma has not been examined. In cross-examination, Sahaytaram Sharma (P.W.9) has admitted that he is not aware as to which

of the papers were signed by him in the police station and which were signed on the spot. Similarly, it has been pointed out that witness P.W.10 is also

related witness and therefore his evidentiary value is not that of high probity.

It is also submitted that as per the FIR, deceased Brajmohan had left his home in a red coloured half paint and white check shirt, whereas Ex.P/15

property seizure memo reveals that a gray coloured full paint and white check shirt with black checks was recovered from the custody of the

appellant No.1. Relying on such piece of evidence, learned counsel for the appellants submits that this is not a reliable piece of evidence. It is beyond

comprehension that a person will keep his clothes in a packet in his house when he had thrown the packet of ash and bones in a drain. It is also

submitted that even recovery of bones from property of the appellant is doubtful, inasmuch as witnesses of Panchnama are interested witnesses and

related to the deceased and are not independent witnesses. They are witnesses of the same caste and community, to which the deceased was

belonging. Learned counsel further submitted that it is highly improbable that polythene containing bones etc. will not be touched by stray animals.

Reliance is also placed on the judgment of the Hon'ble Supreme Court in the case of Rambraksh @ Jalim Vs. State of Chhattisgarh as reported in

(2016) 12 SCC 251, wherein the ratio is that in a case of murder when circumstantial evidence is taken into consideration, then if time gap is wide then

last seen theory can not be taken to be a reliable piece of evidence. It has been held by the Hon'ble Supreme Court that the investigating officer did

not take any attempt to conduct DNA analysis of bones to prove that the skeleton seized was that of Ramsevak. In short, the prosecution has failed to

prove the death of Ramsevak either homicidal or otherwise. It has been held by the Hon'ble Supreme Court that it is trite law that a conviction cannot

be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction can not be

based on the only circumstance of last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when

the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the

accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not sufficient and the

prosecution has to complete the chain of circumstances to bring home the guilt of the accused. In the present case, author of the last seen theory is

Daaudayal Srivastav (P.W.5). In para 3 of his cross examination, he has admitted that he had discovered on that very day that Brajmohan was

missing and his family members were searching for him but he did not inform this fact to anybody that on that date at about 6 p.m. he had seen

Mataprasad with Brajmohan on the handcart of Deendayal.

In the aforesaid backdrop, evidence of various witnesses and the documents, which have been produced, are to be examined to see whether chain

of circumstances pointed out towards guilt of the accused persons is complete or not.

Ashok Kumar Sharma (P.W.1) is father of the deceased and Head Constable in the Police. He has admitted that when on 23.11.2003, Brajmohan

had not returned, then on the asking of his mother he had sent his nephew Neeraj to the place of Mataprasad, appellant No.1 to find out about

whereabouts of his son. Neeraj had informed him that Brajmohan was not at the place of Mataprasad. Neeraj Sharma (P.W.4) has also admitted that

when he had reached house of Mataprasad, doors of his house were closed and when he knocked at the doors then his wife Jaldevi had informed that

Mataprasad is not at home. This fact is missing from the statement Ashok Kumar Sharma (P.W.1). It is mentioned that he had again gone to the

house of Mataprasad at about 9.30 p.m. and when he had called Mataprasad, Mataprasad had come out of his house rubbing his eyes and when

Neeraj (P.W.4) tried to force his entry into the house of Mataprasad at the pretext of drinking water, Mataprasad stopped him from going inside. This

part is also not corroborated by the statement of Ashok Kumar Sharma (P.W.1) on whose behest Ashok Kumar Sharma (P.W.4) had visited house of

Mataprasad. Police has not recorded his statement under Section 161 or at least they are not available on record. Thus, there is a contradiction

between the statements of Ashok Kumar Sharma (P.W.1) and Neeraj (P.W.4). Further, if the conduct of Mataprasad, as narrated by Neeraj (P.W.4)

is to be believed, then Neeraj (P.W.4) should have immediately reported the matter to P.W.1, who could have taken help of police to search house of

Mataprasad.

Similarly, Daaudayal Srivastav (P.W.5) is a witness of last seen and his statements under Section 161 have also not been produced and he admits

that he had seen Brajmohan standing with Mataprasad at the vegetable cart of Deendayal at about 6 pm but fails to point out that why he had not

informed Ashok Kumar Sharma about such appearance when he already knew Brajmohan was missing and Ashok Kumar Sharma was searching for

his son. Therefore, when statements of Ashok Kumar Sharma (P.W.1), Neeraj (P.W.4) and Daaudayal Srivastav (P.W.5) are read harmoniously,

there are several contradictions and improvisations which creates doubts about story of prosecution.

Shakuntala Devi (P.W.2), mother of the deceased gave a statement that her son was missing at the time of election and thereafter a demand of

ransom was made. But whether Mataprasad had any political connections or was a subscriber of rival political ideology, has not been deposed by any

of the witnesses. Further she has identified the clothes which do not match with the clothes which have been mentioned in the missing person report.

Therefore, her testimony is not very reliable.

As far as demand of ransom is concerned, though it has been attributed by several persons like Ashok Kumar Sharma (P.W.1) and Radheshyam

Sharma (P.W.3) that Mataprasad had taken some amounts of loan several years prior to the incident but they did not produce any document to show

that they had created some documentary evidence to demonstrate advancing of such loan. Radheshyam Sharma (P.W.3) has mentioned that on

20.11.2003 Mataprasad had purforth demand for some money from BJP candidate Munnasingh in lieu of getting votes in his community in favour of

such BJP candidate Munnasingh, but that does not show that there was any rivalry or dispute between the parties forcing them to stoop down to such

level.

It is an admitted position that Mataprasad was arrested on 26.1.2004 as has been deposed by Radheshyam Sharma (P.W.3) and S.S.Pandey

(P.W.12). FIR has been recorded after his arrest on 27.1.2004. Therefore, it can not be out rightly discarded that FIR was worded so to support the

version of the prosecution. In fact, as per Ex.P/7, malicious call report, call was made from mobile No.9826258690 on 11.1.2004 at 13.35.21 hours,

whereas telephone was kept on surveillance w.e.f. 31.12.2003. One call was received on January 4, 2004 from said No.9826258690. Therefore

saying that there were several calls from such number demanding ransom is not made out, inasmuch as in the FIR it is mentioned that on 15.1.2004 it

was learnt that ransom was being demanded by calling from mobile No.9826258690, whereas the first call from this number was made on 4th January

2004 and next call was on 11.1.2004. Therefore, information was already available in regard to receiving calls from a particular number in regard to

demand of ransom. This was required to be corroborated by the prosecution by either putting right questions to S.K.Vimal (P.W.6) SDOP BSNL or

by producing concerned officer of Idea Cellular but they have failed to discharge their burden in this regard.

Ex.P.23 is the medico-legal report, which categorically opines that cause of death could not be ascertained and remains open to be ascertained

from circumstantial evidence. Therefore, the burden was on the prosecution to have knitted each and every piece of circumstantial evidence to show

complete chain but they have failed to complete the chain. As has been mentioned above, the theory of last seen could not be proved properly.

Similarly, demand of ransom could not be proved. As has been mentioned above, prosecution has failed to examine Lakhan Singh to show that even

number issued in favour of Ramsingh Sikarwar was used by appellant No.1. They had not taken any pains to trace Ramsingh Sikarwar and complete

the chain that how mobile connection taken in the name of Ramsingh Sikarwar was being used by appellant No.1. Similarly, they did not verify the use

of EMI number of mobile seized from the custody of appellant No.1 vide seizure memo (Ex.P/18) to correlate use of SIM No. 9826258690. Though

seizure memo (Ex.P/18) reveals seizure of Nokia mobile but seizure of the Sim No.9826258690 has not been shown by the prosecution. In absence of

seizure of the sim, another important link in the chain of circumstances remains missing i.e. the same bearing number of Idea Network namely

9826258690 was being used from the seized mobile of Nokia which was seized vide seizure memo Ex.P/18.

Recovery of bones from two different places vide seizure memo EX-P/153 (vide which white colour polythene containing pieces of bone, charcoal

and ashes were recovered) from a drain close to the farm of Idris Khan and another vide Ex.P/14 from Goda of Mataprasad make recovery doubtful

specially in absence of any independent witness. If a person would have thrown bones in a polythene in open agricultural field, then in all probabilities,

unless the area is protected from stray animals, it would not have continued to lay at the said place. Similarly, if a person had thrown pieces of bone

rapped in a polythene in a drain, it is not explained as to why same person will hide some portion of bone and ash in his own 'Goda'.

Even recovery of clothes of the deceased as identified by Shakuntala Devi (P.W.2) is doubtful as there is no match between the clothes

mentioned in missing person report and one which have been recovered vide seizure memo Ex.P/15.

There is no mention that even money which was allegedly lent to Mataprasad was ever demanded and Mataprasad had refused to refund such

amount or had shown displeasure as to demand of such amount. Firstly, lending is not proved and no demand has been shown leading to any bitterness

between the parties i.e. another missing link in the chain of cirdumstances.

In view of such facts, the prosecution has failed to complete the chain of evidence, which could have secured conviction of the appellant No. 1.

Similarly, appellant No.2 has been convicted on the basis of the testimony of Kanthobai (P.W.8) and that of Umashankar (P.W.7). As far as

Umashankar (P.W.7) is concerned, he admitted that he did not reveal smelling foul smell from Goda of Mataprasad on 24.11.2013 i.e. the next day of

missing of Mataprasad. He had not deposed anything about appellant No.2. Kanthobai (P.W.8), though in her examination-in-chief has admitted that

she never saw Jaldevi cleaning Goda but when she was declared hostile she admitted that she had given the statement in this regard to the police.

However, in para 7 of her cross examination, she has admitted that she had never seen Jaldevi cleaning that Goda or plastering such Goda with local

material. In view of such facts, conviction of Jaldevi as has been ordered by the learned Sessions Judge is not based on any cogent reliable evidence

but on surmises and conjectures.

In view of such facts when prosecution has failed to prove the case and complete the chain of circumstantial evidence, the conviction recorded by

the trial court can not be said to be based on sound legal principle but is a conviction based on surmises and conjectures and therefore the impugned

judgment dt.27th August 2004 is not sustainable in the eye of law and the same deserves to be set aside and is set aside. Appellant No.1 is in jail. He

be released forthwith. Appellant No.2 is on bail. Her bail bonds be discharged.

Record of the trial court be sent back to the trial court.