Mohd. Shamim and Others vs State of Chhattisgarh

T.P. Sharma, J.—Challenge in this appeal is to the judgment of conviction & order of sentence dated 9-10-2007 passed by the 4th Additional Sessions Judge, Durg, in Sessions Trial No. 93/2006, whereby & whereunder the Additional Sessions Judge after holding appellant Mohd. Shamim guilty for commission of culpable homicide amounting to murder of Puja @ Lakshmi Thakur in sharing common intention with other co-appellants namely Babbu @ Khan Ali & Kalle @ Guldip Singh, and attempting to conceal the evidence of criminal case, convicted and sentenced the appellants as below: -

Conviction is impugned on the ground that without any iota of evidence, the trial Court has convicted & sentenced the appellants and thereby committed illegality.

As per case of the prosecution, unfortunate deceased Puja @ Lakshmi Thakur was married to appellant Mohd. Shamim and she was residing as his wife in his house. On account of inter se dispute, appellant Mohd. Shamim was not happy with Puja and there was complaint of regular quarrel between appellant Mohd. Shamim and deceased Puja. On account of such quarrel, in the intervening night of 11-2-2006 and 12-2-2006 appellant Mohd. Shamim along with two other accused committed murder of Puja and with intent to conceal the evidence of criminal case, they threw the dead body in a drain at Jawahar Nagar, Durg. After committing the offence, Mohd. Shamim was trying to flee from Durg and he went to the railway station by his motorcycle. Crime Branch of Durg received secret information about Mohd. Shamim. Head Constable Chintamani Vaishnav (PW-9) of Crime Branch, Durg, was present at the railway station. He informed the Jamul Police by telephone and the Jamul Police recorded roznamcha vide Ex. P-28. The Jamul Police immediately rushed to the railway station where appellant Mohd. Shamim was present and he was caught by the Jamul Police. Mohd. Shamim was interrogated. He made discloser statement of the dead body of Puja in the drain at Jawahar Nagar vide Ex. P-5. On 12-2-2006 appellants Babbu @ Khan Ali & Kalle @ Guldip Singh also made discloser statements of the dead body vide Exs. P-3 & P-4, respectively. Appellant Babbu @ Khan Ali made discloser statement of dead body & khanjar (knife) at 7.15 a.m. and appellant Kalle @ Guldip Singh made discloser statement of dead body & clothes at 7.30 a.m.. Dead body of Puja was recovered on the basis of discloser statement of Mohd. Shamim vide Ex. P-7 and same was identified as dead body of Juja vide Ex. P-6. Bloodstained & plain soil, bloodstained aupana and pair of sandals of the deceased were recovered from the spot vide Ex. P-11. Appellant Babbu Ali produced bloodstained khanjar (knife) kept under the beshram shrubs from Jawahar Nagar and same was seized vide Ex. P-12. Bloodstained clothes of appellant Babbu Ali were seized vide Ex. P-8. Bloodstained clothes and one receipt of cycle stand of Railway Station, Durg pertaining to TVS moped bearing registration NO. CG-07/L-3478, dated 12-2-2006 were seized from appellant Mohd. Shamim vide Ex. P-10. Bloodstained clothes of appellant Kalle were seized from him vide Ex. P-13. Spot map was prepared vide Ex. P-14. Recovery panchnama of the dead body was prepared vide Ex. P-16 Dehati Nalsi was recorded vide Ex. P-29. Morgue was recorded vide Ex. P-25. FIR was registered vide Ex. P-18. After summoning the witnesses vide Ex. P-1, inquest over the dead body of the deceased was prepared vide Ex. P-2. Dead body was sent for autopsy to District Hospital, Durg vide Ex. P-22. Dr. A.K. Mishra (PW-17) conducted autopsy vide Ex. P-26 and found following injuries:

� Eleven incised wounds over chest and abdomen.

(1) Incised wound of 3 cm. x 1 cm. with sufficient depth just below left breast.

(2) Incised wound of 3 cm. x 1 cm. with depth below injury No. 1.

(3) Incised wound of 3 cm. x 1 cm. with depth below injury No. 2.

(4) Incised wound of 4 cm. x 2 cm. with sufficient depth just below injury No. 3.

(5) Incised wound of 3 cm. x 2 cm. with sufficient depth near umbilicus.

(6) Incised wound of 3 cm. x 1 cm. with sufficient depth on right side near umbilicus.

(7) Incised wound of 3 cm. x 1 cm. with sufficient depth below above injury.

(8) Incised wound of 3 cm. x 2 cm. with sufficient depth besides above injury.

(9) Incised wound over right side of chest of 41/2 cm. x 2 cm.

(10) Incised wound of 3 cm. x 1.5 cm. over right side of chest.

(11) Incised wound of 31/2 cm. x 11/2 cm. over right side of chest.

(12) Incised wound between chest and abdomen of 31/2 cm. x 2 cm.

(13) Incised wound of 3 cm. x 1/2 cm. over back.

(14) Incised wound of 3 1/2 cm. x 1 cm. over back.

(15) Two incised wounds of 3 cm. x 2 cm. and 3 cm. x 1 cm. over back.

(16) Incised wound of 3 1/2 cm. x 2 cm. over waist.

(17) Incised wound of 2 cm. x 1 cm. over frontal region.

(18) Incised wound of 3 cm. x 1 cm. over left thigh up to bone deep,

(19) Incised wound just below buttock of 2 cm. x 11/2 cm. up to bone deep.

(20) Incised wound over right buttock of 21/2 cm. x 2 cm. up to bone deep.

(21) Abrasion of 2 cm. x 1 cm. over left leg.

(22) Blood deposited in abdomen and chest.

(23) Soil found in both hands & hairs.

(24) Fracture, of ribs.

(25) Three punctured wounds over liver.

(26) Stomach and small intestine ruptured.

(27) Laceration of right lungs.

(28) Fetus of 12-14 weeks found in uterus.

Clothes of the deceased were sealed. Mode of death was shock and death was homicidal in nature. TVS motorcycle was seized from Amit Dewangan, employee of cycle stand of Railway Station, Durg, vide Ex. P-21. Patwari prepared spot map vide Ex. P-15. Sealed clothes of the deceased were seized vide Ex. P-17. Seized articles were sent for chemical examination to Forensic Science Laboratory, Raipur, vide Ex. P-35. Presence of blood over khanjar (knife) and clothes seized from the appellants was confirmed by the Forensic Science Laboratory vide Ex. P-38. Articles were further sent for serological examination and presence of human blood over khanjar, shirt & pant of appellant Mohd. Shamim and T-shirt of appellant Babbu Ali was confirmed vide serologist report Ex. P-39. T-shirt of Babbu Ali was stained with O blood group.

Statements of the witnesses were recorded u/s 161 of the CrPC. After completion of investigation, charge sheet was filed before, the Court of Judicial Magistrate First Class, Durg who committed the case to the Court of Sessions, Durg, from where the Additional Sessions Judge received the case on transfer for trial

In order to prove the guilt of the accused persons, the prosecution has examined as many as twenty witnesses. The accused persons were examined u/s 313 of the CrPC in which they denied the circumstances appearing against them, pleaded innocence and false implication in the crime in question.

After affording opportunity of hearing to the parties, the Additional Sessions Judge, convicted & sentenced the appellants as aforementioned.

We have heard learned counsel for the parties, perused the judgment and record of the trial Court.

Mr. Awadh Tripathi, learned counsel for appellants No. 1 & 2, vehemently argued that conviction is based on conjectures and surmises. The prosecution has failed to adduce conclusive evidence against the appellants. The prosecution has also utterly failed to prove the fact that deceased Puja was married to appellant Modh. Shamim and was residing with him, and that appellant Mohd. Shamim was trying to escape from Durg and was found at Durg Railway Station. Mr. Awadh Tripathi further argued that dead body of the deceased has not been recovered on the basis discloser statement of the appellants, public has seen the dead body and it was known to the public prior to such discloser statement or recovery. Even Mohd. Shamim was not arrested or taken into custody at Railway Station, Durg. Evidences of the police witnesses are contradictory to each other. Head Constable Bishambharnath Pandey (PW-6) and Constable Vinod Mishra (PW-10) have specifically deposed that they have not gone to the railway station and they were not with Investigating Officer K.K. Nag (PW-13 A). In absence of clinching and credible evidence, evidence adduced on behalf of the prosecution may be sufficient for drawing suspicion that the appellants might have committed the offence, but same is not sufficient for drawing definite conclusion that the appellants have committed the offence. There is much difference between cups and lips, and may prove and must prove. In absence of credible and clinching evidence, all the appellants are entitled for acquittal.

Mr. Awadh Tripathi placed reliance in the matter of Bipin Kumar Mondal v. State of West Bengal in which the Supreme Court has held that proof of motive is not essential in case of direct evidence, but motive does assume great importance in case of circumstantial evidence. However, the Court held that absconding of accused by itself is not sufficient to prove guilt.

Mrs. Fouzia Mirza, learned counsel for appellant No. 3, submitted that the prosecution has utterly failed to prove any circumstance against appellant Kalle @ Guldip Singh beyond the shadow of doubt. Even the prosecution has failed to prove that he was close to any of the appellants or has entered into conspiracy or that in sharing common intention they have committed the offence. In absence of cogent and credible evidence, appellant Kalle is entitled for acquittal.

On the other hand, Mr. Neeraj Mehta, learned Panel Lawyer appearing on behalf of the State/respondent, opposed the appeal and submitted that conviction is based on circumstantial evidence. In order to convict the appellants on the basis of circumstantial evidence, the prosecution is required to prove the complete chain of circumstances sufficient to prove the guilt of the appellants and to exclude the innocence of the appellants. The prosecution has proved complete chain of following circumstances:-

(1) Deceased Puja was residing with appellant Mohd. Shamim as his wife.

(2) In the intervening night of 11-2-2006 and 12-2-2006 at about 5.30 a.m. she was not present with appellant Mohd. Shamim and her murdered dead body was found in a drain.

(3) At about 5.30 a.m. Mohd. Shamim was roaming in suspicious stage in Railway Station, Durg after keeping his motorcycle at the cycle stand situate at Railway Station, Durg.

(4) Mohd. Shamim was caught by the Jamul Police at the instance of the Crime Branch, from Railway Station, Durg.

(5) Dead body of Puja has been recovered at the instance of Mohd. Shamim.

(6) Bloodstained khanjar (knife) stained with human blood has been recovered on the basis of discloser statement of Babbu Ali and bloodstained clothes have been recovered at the instance of appellant Kalle.

(7) Appellant Mohd. Shamim has not offered any explanation as to who has caused murder of his wife and what action he has taken when his wife was not present in his house.

(8) Mohd. Shamim was having motive for commission of murder on account of regular quarrel with the deceased.

If aforesaid circumstances are considered together, the only inference would be possible that appellant Mohd. Shamim along with other accused persons have committed murder of Puja and have attempted to conceal the evidence of criminal case.

In order to appreciate the arguments advanced on behalf of the parties, we have examined the evidence adduced on behalf of the prosecution.

In the present case, brutal and merciless murder of deceased Puja by sharp edged weapon has not been substantially disputed on behalf of the appellants. Even otherwise, it is established by evidence of Dr. A.K. Mishra (PW-17) and autopsy report Ex. P-26 that death of deceased Puja was homicidal in nature.

As regards complicity of the appellants in the crime in question, conviction is based on circumstantial evidence.

As per evidence of Meena Parihar (PW-3) & Thakur Lilendra Singh Parihar (PW-7), their daughter Puja was having some affairs with Mohd. Shamim and finally, she was married to Mohd. Shamim, she was residing with Mohd. Shamim, and she was not happy with behaviour and etiquette of Mohd. Shamim. Defence has cross-examined these witnesses at length, especially relating to the fact that Puja was not married to Mohd. Shamim and she was not residing with him. However, in para 15 of cross-examination of Meena Parihar (PW-3), defence itself has suggested that Puja was residing with appellant Mohd. Shamim and Mohd. Shamim was keeping her with him. Detailed cross-examination of these witnesses clearly reveals that on account of some dispute, Puja used to leave the house of Mohd. Shamim frequently, she was residing with Mohd. Shamim as his wife, and whenever she left the house of Mohd. Shamim, Mohd. Shamim used to rush immediately to their house and enquire about Puja.

As per evidence of Chintamani Vaishnav (PW-9), on 12.02.2006 he was in the Crime branch, he was posted as Head Constable in District Crime Branch, Durg and he was on patrolling duty, at about 5 a.m. he received information that Samim Khan of Supla after committing murder of his wife Puja is roaming in Durg Railway Station and is trying to escape, then he immediately informed the Station Incharge, Jamul - K.K. Nag by telephone, and within 30 minutes, K.K. Nag along with other staff came to Railway Station, Durg where Mohd. Shamim was present and they caught hold of appellant Mohd. Shamim. As per para 2 of his evidence, he has also received information that Mohd. Shamim has committed murder of his wife and has thrown the dead body at Jawahar Nagar area.

K.K. Nag (PW-13A), Station Incharge of Jamul Police Station has corroborated aforesaid evidence and has deposed that after receiving such information, he recorded roznamcha vide Ex. P-28 and proceeded for railway station with police staff, especially with Constable Nos. 1175 & 352. He contacted Chintamani Vaishnav (PW-9), Head Constable, in whose custody appellant Mohd. Shamim was present, he interrogated Mohd. Shamim and brought him to the police station along with appellants Babbu Ali & Kalle who were staying at Gurunanak Dharamshala. He recorded discloser statement of Mohd. Shamim vide Ex. P-5 at 7 a.m., discloser statement of Babbu Ali vide Ex. P-3 at 7.15 a.m. and discloser statement of Kalle vide Ex. P-4 at 7.30 a.m., thereafter, he proceeded for the spot and on the basis of discloser statements of Mohd. Shamim and other co-accused, he recovered the dead body of deceased Puja vide Ex. P-7 at about 8.20 a.m., and the dead body was identified vide Ex. P-6. K.K. Nag (PW-13A) has further deposed that on the basis of discloser statement of appellant Babbu Ali, he recovered bloodstained clothes of Babbu Ali vide Ex. P-8. T-shirt of Kalle was seized vide Ex. P-9. Bloodstained clothes of appellant Mohd. Shamim and one receipt of deposit of motorcycle at Railway Cycle Stand, Durg were seized vide Ex. P-10. As per his evidence, motorcycle has been seized from one Amit Kumar Dewangan vide Ex. P-21 from the Cycle Stand of Railway Station, Durg. Khanjar (knife) was seized at the instance of appellant Babbu Ali vide Ex. P-12 from under beshram shrubs.

Ramesh Jangde (PW-1), witness of memorandum and recovery, has not corroborated the evidence of K.K. Nag (PW-13 A) relating to recovery of dead body. As per his evidence, between 5 a.m. and 6 a.m. he had gone to attend the call of nature, he was called by the police, the police have informed that they will prepare inquest of a dead body, the dead body was covered with cloth, he signed over some documents and at the same time, the police came with some vehicle and some boys, but he do not know whether the appellants herein were brought by the police or not. The prosecution has declared him hostile. In para 6 of his cross-examination, even he had deposed that he do not know whether the body was of man or woman or of any animal.

Sinder Pal (PW-4), another Panch witness, has also not supported the case of the prosecution, but has admitted signatures over the documents. He has deposed that as informed by the Police, he has signed over the documents. The prosecution has declared this witness also hostile. He has also deposed in para 9 of his evidence that he do not know whether the dead body was of man, woman or of any animal, because the Police has not removed the cloth lying over the dead body.

Bishambharnath Pandey (PW-6), Constable No. 1175, has deposed that he was a member of the police party, after receiving information from public that a dead body is lying in a drain, he along with staff went to the spot and the dead body was taken out from the drain. Clothes were seized vide Ex. P-17. He produced dehati nalsi and FIR was written vide Ex. P-18. In his cross-examination, he has specifically admitted the suggestion that he had not gone to Durg Railway Station, but other staff had gone to Durg Railway Station and he was also called at the police station where the documents were prepared. He has further deposed that one document was given to him by SI Kashyap which he has produced at Police Station Jamul and Ex. P-18 was recorded. He has specifically deposed that he do not know what has been recorded in Ex. P-18.

Vinod Mishra (PW-10), Constable No. 352, who has produced the body for autopsy, has specifically admitted in his cross-examination, para 3, that he had not gone to Railway Station, Durg along with the police party, though as per roznamcha Ex. P-28, K.I.C. Nag (PW-13A) proceeded for Railway Station, Durg along with Constable Nos. 1175 & 352, SI Kashyap, Head Constable No. 205 and other staff including Vinod Mishra (PW-10) - Constable No. 352 & Bishambharnath Pandey (PW-6) - Constable No. 1175. They are police officers and responsible officers. Their evidence cannot be a brushed lightly without any substance.

As per evidence of K.K. Nag (PW-13A) and roznamcha Ex. P-28, Vinod Mishra (PW-10) - Constable No. 352 & Bishambharnath Pandey (PW-6) -Constable No. 1175, were also with the police party and they proceeded for Railway Station, Durg.

As per evidence of Bishambharnath Pandey (PW-6), he has produced dehati nalsi Ex. P-29 in Police Station Jamul and on the basis of dehati nalsi Ex. P-29, FIR Ex. P-18 has been recorded on which he has signed at two places. However, in para 5 of his cross-examination, he has specifically deposed that one document was given to him by SI Kashyap at Police Station Jamul where he was called and document was handed over to him which he produced before Police Station Jamul and Ex. P-18 was recorded. He has specifically deposed in para 5 that he do not know what has been recorded in Ex. P-18.

FIR Ex. P-18 has been recorded on the basis of dehati nalsi Ex. P-29 which Bishambharnath Pandey (PW-6) has produced and as per Ex. P-29, dehati nalsi has been recorded on the spot i.e. at Jawahar Nagar near the drain where the dead body was found and which he has produced at Police Station Jamul. As per first part of Ex. P-18, he has informed the Station Incharge that he is producing dehati nalsi. In paras 2 & 3 of his evidence, he has admitted that dehati nalsi was recorded on the spot which he has produced in the police station and FIR has been recorded vide Ex. P-18. Sealed clothes have been seized before him vide Ex. P-17. It shows that he was present on the spot along with police party where dehati nalsi was recorded which he has produced before Police Station Jamul and FIR Ex. P-18 was recorded. However, for the reasons best known to this witness he has very specifically deposed in para 5 of his cross-examination that he was called at Police Station Jamul where SI Kashyap and other officers were preparing documents, and one document was given to him which he has produced at the police station and FIR has been recorded vide Ex. P-18. If dehati nalsi was written at Police Station Jamul, it was not possible for any authority to send it to Police Station Jamul where by itself such document is written/prepared. He has produced dehati nalsi and on the basis of dehati nalsi, FIR has been recorded vide Ex. P-18. He is not a lay man, he is a responsible Police Constable, but for the reasons best known to him he has deposed that he does not know what document he has proaucea and what has been written in the said document, though in paras 2 & 3 of his evidence he has specifically deposed that dehati nalsi has been recorded on the spot which he has produced at Police Station Jamul and FIR has been recorded vide Ex. P-18.

Paras 2, 3 & 5 of evidence of Bishambharnath Pandey (PW-6) clearly reveal that he is patently telling lie and suppressing the truth. He is a Constable posted at Police Station Jamul having knowledge of the procedure. Although he has deposed that information relating to dead body has been received from public, but he has failed to name any person or the circumstances that as to who came to the police station or who has informed to whom about the dead body. Inter alia, as per his evidence, he was not present at the police station between 5 a.m. and 5.30 a.m., he was called after receiving information which clearly reveals that he has not received any information. If in the light of aforesaid statement which is patently false, his evidence relating to his absence at Railway Station, Durg is considered in the light of evidence of K.K. Nag (PW-13A), roznamcha Ex. P-28 and dehati nalsi Ex. P-29 which he has produced before Police Station Jamul and in which his name i.e. Aarakshak 1175 has been mentioned, his evidence that he has not gone to Railway Station Durg, is also patently false. At least, if he would not have gone to Railway Station, Durg, he would not have produced dehati nalsi at Police Station Jamul showing his presence at Railway Station, Durg. It is unfortunate to the Police that they were having police officer of such a character.

As regards the question of evidentiary value of Vinod Mishra (PW-10), Constable No. 352, he has produced the dead body before District Hospital, Durg for autopsy and after conduction of autopsy, he handed over the dead body to father of the deceased and came with sealed clothes. He has submitted his report vide Ex. P-20. Sealed clothes were seized vide Ex. P-17. In para 3 of his evidence, he has specifically deposed that he had not gone to Railway Station, Durg. In para 5, he has further deposed that on 10th & 11th of February, 2006, he was on duty within his police station area. His name (number) also finds place in Ex. P-28 roznamcha and Ex. P-29 dehati nalsi. K.K. Nag (PW-13A) has deposed that this witness was also with him and they have proceeded for Railway Station, Durg. Evidence of K. K. Nag (PW-13 A) is further corroborated by roznamcha Ex. P-28, at that time police was not confirmed about commission of any offence. His presence at Railway Station, Durg also finds support from dehati nalsi. In absence of any documentary evidence, evidence of Vinod Mishra (PW-10) relating to the fact that he had not gone to Railway Station, Durg on 12-2-2006, after lapse often months on the date of hiss evidence, creates doubt upon his evidentiary value that he had not gone to Railway Station, Durg, along with K.K. Nag (PW-13A).

As per evidence of Ramesh Jangde (PW-1) & Sinder Pal (PW-4), they were called by the police in morning time for preparation of documents, they were not sure as to whether the police came with the appellants or not. As per their evidence, dead body was covered by cloth. The prosecution has declared them hostile. They have not deposed any cause for signing over the documents, when the appellants have not made discloser statements or recovery has not been made before them. Their evidence further reveals that even they do not know that whether the dead body covered by cloth was of male, female or of any animal. This appears completely unnatural, at least the person who has signed on so many documents relating to inquest of the dead body will see the dead body and injuries appearing upon the body, but they have not bothered to see whether the body was of male, female or of any animal. Evidences of these witnesses clearly reveal that either they were winning over by the defence or they had completely suppressed the truth.

In these circumstances, only the evidence of police officer K.K. Nag (PW-13 A) remains for consideration for the purpose of discloser statements and recovery. He is a police officer and his evidence cannot be discarded only on the ground that he is a police officer and is interested in the outcome of the case.

While dealing with the question of evidentiary value of police witnesses, the Supreme Court in the matter of Anil alias Andya Sadashiv Nandoskar Vs. State of Maharashtra, ) has held that witnesses being police officers does not by itself create a doubt about their creditworthiness if non examination of Panch witnesses is explained satisfactorily. Relevant portion reads as under:

Indeed all the five prosecution witnesses who have been examined in support of search and seizure were members of the raiding party. They are all police officials. There is, however, no rule of law that the evidence of police officials has to be discarded or that it suffers from some inherent infirmity. Prudence, however, requires that the evidence of the police officials, who are interested in the outcome of the result of the case, needs to be carefully scrutinized and independently appreciated. The police officials do not suffer from any disability to give evidence and the mere fact that they are police officials does not by itself give rise to any doubt about their creditworthiness. We have carefully and critically analysed the evidence of all the 5 police officials. There is nothing on the record to show that any one of them was hostile to the appellant and despite lengthy cross-examination their evidence has remained unshaken throughout. These witnesses have deposed in clear terms the details of the trap that was laid to apprehend the appellant and the manner in which he was apprehended.-Their evidence regarding search and seizure of the weapons from the appellant is straightforward, consistent and specific. It inspires confidence and learned counsel for the appellant has not been able to point out any serious, let alone fatal, infirmity in their evidence. In our opinion, the factum of search and seizure of the country made revolver from the conscious possession of the appellant has been established by the prosecution beyond any reasonable doubt. The explanation given by the prosecution, for the non-examination of the two Panch witnesses, which is supported by the report Ex. 24 filed by PW-4 P.I. Gaikwad is satisfactory. The evidence on the record shows that the raiding party made sincere efforts to join with them two independent Panchas at the time of search and seizure and they were so joined. They are also cited as prosecution witnesses and summoned to give evidence. However, despite diligent efforts made by the prosecuting agency to serve them, they could not be located or traced and therefore, they could not be examined at the trial. In the face of the facts stated in report Ex. 24, the correctness of which has remained virtually unchallenged during the cross examination of PW-4, the non examination of the two Panchas cannot be said to be on account of any oblique reason. Their non production at the trial thus'' has not created any dent in the prosecution case. The prosecution cannot be accused of withholding these witnesses since it made every effort to trace and produce them at the trial but failed on account of the fact that they had left the address furnished by them at the time of search and their whereabouts could not be traced despite diligent effort made in that behalf. We, therefore, do not find any reason to doubt the correctness of the prosecution version relating to the apprehension of the appellant, the search and seizure by the raiding party and the recovery from the appellant of the country made revolver and cartridges for which he could produce no license or authority because of the non examination of the Panch witnesses we find that the evidence of PW 1 to PW-5 is reliable, cogent and trustworthy.

Defence has failed to show any departure from the procedure prescribed while investigating the offence by K.K. Nag (PW-13A) or any interestedness. In the present case, in absence of interestedness or departure from the procedure prescribed, evidence of K.K. Nag (PW-13A) is sufficient for proving the case of the prosecution.

Head Constable Chintamani Vaishnav (PW-9) of Crime Branch, Durg has deposed in paras 1 & 2 of his evidence that he has telephoned to the Jamul Police that Mohd. Shamim is present at Railway Station, Durg and is trying to escape after committing murder of his wife Puja @ Lakshmi Thakur, and has thrown the dead body at Jawahar Nagar which finds support from the immediately recorded roznamcha Ex. P-28 at 5.30 a.m. and evidence of K.K. Nag (PW-13A). In para 2 of his evidence, he has further deposed that Station Incharge Jamul along with staff came to Railway Station, Durg and caught Mohd. Shamim, though he has not filed any document relating to his duty. He has denied the suggestion that they have arrested Shamim from his house. The fact that the dead body which was lying in Jawahar Nagar area was the dead body of Puja, wife of appellant Mohd. Shamim is not disputed. This fact finds support from the immediately written roznamcha Ex. P-28 that too at the instance of Chintamani Vaishnav (PW-9). Therefore, his evidence cannot be discarded only on the ground that he has failed to file certificate of his duty.

There is discrepancy relating to custody and arrest of appellant Mohd. Shamim at Railway Station, Durg. Chintamani Vaishnav (PW-9) has not clearly deposed that Mohd. Shamim was in his custody, though K.K. Nag (PW-13 A) has clearly deposed in para 2 of his evidence that Samim Khan was in custody of Chintamani Vaishnav (PW-9), Head Constable and that from his custody, he has taken Samim Khan and interrogated, thereafter, he immediately rushed to Gurunanak Dharamshala from where he took other two accused persons. Nothing has been suggested to Chintamani Vaishnav (PW-9) relating to the fact that Mohd. Shamim was not under his active control. Even as per Ex. P-28, at least Chintamani Vaishnav (PW-9) was watching the movement of appellant Mohd. Shamim at the railway station when K.K. Nag (PW-13A) along with police staff caught him. Therefore, on account of discrepancy of active control/custody/arrest, the factum of presence of appellant Mohd. Shamim at Railway Station, Durg, cannot be discarded, even otherwise, same is well supported by the seizure of receipt of the motorcycle deposited at Cycle Stand of Railway Station, Durg vide Article ''A'' issued from Cycle Stand of Railway Station, Durg which has been seized from appellant Mohd. Shamim vide Ex. P-10. As per evidence of Sunil Singh (PW-16), Contractor of the cycle stand, he has admitted that Article ''A'' is of his cycle stand. He has admitted the signature over Ex. P-21, seizure of motorcycle from his cycle stand. He has specifically admitted that Amit Kumar was his employee. Seizure has been well proved by K.K. Nag (PW-13A).

Seizure of Article ''A'' from appellant Mohd. Shamim vide Ex. P-10 and seizure of the motorcycle belonging to the appellant vide Ex. P-21 from Cycle Stand of Railway Station, Durg, are further sufficient to prove the fact that between 5 a.m. and 5.30 a.m. of 12-2-2006, appellant Mohd. Shamim was at the railway station. Chintamani Vaishnav (PW-9), Head Constable, received information about the commission of offence and presence of this appellant at Railway Station, Durg. This appellant was caught by K.K. Nag (PW-13 A) along with his staff. As per evidence of K.K. Nag (PW-13 A), appellant Mohd. Shamim has made discloser statement of the dead body on 12-2-2006 at 7 a.m. vide Ex. P-3 and same has been recovered from a drain vide Ex. P-7 at the instance of the appellant. Identification Panchnama has been prepared vide Ex. P-6.

Ex. P-28, the alleged roznamcha, reveals that appellant Samim was having information. Ex. P-28 does disclose the specific place where the dead body was found. On the basis of Ex. P-28, appellant Mohd. Shamim was interrogated, then he made discloser statement of the dead body and definite place has been disclosed on the basis of Ex. P-3. The dead body has been recovered from inside a dry drain. No other person or persons has deposed that prior to such information, they have informed the police or they have seen the dead body. This was the incident of February, 2006 between 5 a.m. and 5.30 a.m. i.e. at early morning of winter season. In absence of any other information, the only inference that the dead body of the deceased has been recovered on the basis of discloser statement of appellant Mohd. Shamim vide Ex. P-5, would be possible.

Discloser statement relating to discovery of dead body, of other appellants is not admissible in evidence on account of first information by appellant Mohd. Shamim vide Ex. P-5. Discloser statement of appellant Babbu Ali has also been recorded vide Ex. P-3 in which he has disclosed the khanjar (knife). As per evidence of K.K. Nag (PW-13 A), khanjar has been recovered at the instance of appellant Babbu Ali from shrubs in hidden position and it has been produced by appellant Babbu Ali. Clothes of the appellants have been seized vide Exs. P-9, P-10 & P-13. Seized articles were sent for chemical examination and presence of blood has been confirmed upon clothes of the appellants and on khanjar (knife) vide Ex. P-38, same were sent for serological examination and presence of human blood over khanjar and T-shirt seized from appellant Babbu Ali vide Ex. P-8, has been confirmed vide serologist report Ex. P-39.

By aforesaid evidence, the prosecution has proved following circumstances:-

(1) Puja @ Lakshmi Thakur (since deceased) was residing with appellant Mohd. Shamim as his wife.

(2) On 12-2-2006 between 5 a.m. and 5.30 a.m. appellant Mohd. Shamim was present at the railway station and he has deposited his motorcycle at Cycle Stand of Railway Station, Durg.

(3) The Crime Branch received information about commission of offence and about presence of dead body at Jawahar Nagar not knowing specific place and same was informed to Police Station Jamul.

(4) The Jamul police rushed to Railway Station, Durg and caught hold of appellant Mohd. Shamim from the railway station''.

(5) Appellant Mohd. Shamim was interrogated and he made discloser statement of the dead body of Puja.

(6) Murdered dead body of Puja has been recovered from a dry drain during early hours of morning in winter season.

(7) The police have not received any information about the definite place of dead body from any person other than appellant Mohd. Shamim.

(8) Evidence relating to presence of co-appellants Babbu Ali and Kalle at Gurunanak Dharamshala is not conclusive in nature, but they were immediately caught by the Jamul Police. Appellant Babbu AH made discloser statement of khanjar (knife) vide Ex. P-3 and he has produced the khanjar (knife) which was hidden under the shrubs at Jawahar Nagar and which has been seized from him vide Ex. P-12. His bloodstained T-shirt along with full pant has been seized vide Ex. P-8. Presence of human blood over khanjar & T-shirt recovered from appellant Babbu Ali has been confirmed vide serologist report Ex. P-39.

(9) Appellant Mohd. Shamim was under obligation to offer explanation that

a) who has caused homicidal death of deceased Puja, his wife, who was residing with him;

b) whether Puja was present with him in the intervening night of 11-2-2006 and 12-2-2006, if not, what action he has taken;

c) why he was found present at Railway Station, Durg, after depositing his motorcycle at Cycle Stand of Railway Station, Durg; and

d) how he came to know about the murdered dead body of his wife lying in a drain at Jawahar Nagar.

Likewise, appellant Babbu Ali was under obligation to offer explanation that how he came to know about the khanjar (knife) stained with human blood hiding under shrubs at Jawahar Nagar that too on the date of incident within three hours of recovery of the dead body and how his T-shirt was stained with human blood.

Injuries found over the dead body of the deceased were incised wounds may be caused by the alleged khanjar (knife).

In absence of aforesaid explanation and the circumstances proved by prosecution, the only inference would be possible that appellant Mohd. Shamim, who was having grudge against his wife Puja on account of regular dispute which was the motive for him, has caused homicidal death amounting to murder of Puja in sharing common intention with appellant Babbu Ali and has tried to conceal the evidence of criminal case. Evidence against appellant Kalle is sufficient for drawing suspicion that he might have shared common intention with appellant Mohd. Shamim, but same is not sufficient for drawing definite conclusion that he has shared common intention for commission of offence with Mohd. Shamim and Babbu Ali. Suspicion however grave cannot take the place of legal evidence.

As held by the Supreme Court in Bipin Kumar''s case (supra), in case of circumstantial evidence motive has a vital role. In the present case, as per evidence of Meena Parihar (PW-3) & Thakur Lilendra Singh Parihar (PW-7) - mother & father of deceased Puja, respectively, Puja was not happy with appellant Mohd. Shamim and they used to quarrel with each other frequently which was the motive to appellant Mohd. Shamim for finishing Puja.

While convicting appellant Kalle under Sections 302 read with Section 34 and 201 read with Section 511 of the IPC, the trial Court has not considered insufficiency of evidence against him and thereby committed illegality.

Conviction and sentences of appellants Mohd. Shamim and Babbu Ali are based on credible, clinching and legal evidence. This is case of brutal and merciless murder of a woman i.e. wife of appellant Mohd. Shamim. After appreciating evidence available on record, the trial Court has rightly convicted & sentenced appellants Mohd. Shamim & Babbu Ali.

Consequently, the appeal is partly allowed. Conviction & sentences of appellant Kalle @ Guldip Singh under Sections 302 read with Section. 34 and 201 read with Section 511 of the IPC are hereby set aside and he is acquitted of the said charges. Appellant Kalle is on bail. Conviction & sentences of appellant Mohd. Shamim under Sections 302 & 201 read with Section 511 of the IPC are hereby maintained. Conviction & sentences of Babbu @ Khan Ali under Sections 302 read with Section 34 and 201 read with Section 511 of the IPC are also hereby maintained.

Before parting with the case, we are constrained to inform the Director General of Police relating to character and conduct of Bishambharnath Pandey (PW-6), the then Constable No. 1175 posted at Police Station Jamul, in the light of paras 20, 22, 23, 24 & 25 of this judgment. Let a copy of this judgment along with copy of FIR, copy of dehati nalsi and copy of evidence of Bishambharnath Pandey (PW-6) recorded during that be sent to the Director General of Police for taking suitable action. However, it is made clear that the Director General of Police may take appropriate action against his employee Bishambharnath Pandey (PW-6), Constable No. 1175 without being influenced by finding or judgment of this Court and shall intimate the action taken by him against.