Om Prakash Shahu vs State Of Madhya Pradesh

Section,Awarded Sentence

376 (2) of the Indian Penal Code,"R.I. for 10 years with fine of Rs.500/-,

in default of fine, R.I. for 3 months

302 of the Indian Penal Code,"Life imprisonment with fine of

Rs.500/-, in default of fine, R.I

for 3 months

201 of the Indian Penal Code,"R.I. for 3 years with fine of Rs.500/-,

in default of fine, R.I

for 3 months

3- ,d NksVk lk dUVwtu xnZu ds ck; Hkkx ij Ã…ij dh rjQ ekStwn FkkA tks fd 1 bapx1 lseh- lkbt dk FkkA ;g NksVk dUVwtu tks Ldki dh xBku Fkh",

,oa tks xnZu ij Ldki ekStwn Fkk xys esa tks Ldki Fkk vkSj tks mldh xBku Fkh] xBku ds Ã…ij xys esa pksV FkhA xys esa xBku ds Ã…ij dUVwtu",

pksV FkhA xys esa ik;h xbZ pksV e`R;q ds iwoZ dh FkhA vkra fjd ijh{k.k,

4- vkUrfjd ijh{k.k ds nkSjku 'kckuk dk ijh{k.k djus ij ik;k flj ¼efLr""d½ ,oa f>Yyh dUtLs VVZ FkhA dBa ,oa 'okl uyh ds nkus ksa QQs Ms",

dUtsLVMZ FksA g`n; dk nk;a k Hkkx [kkyh Fkk vkSj nk;a s Hkkx esa [kwu ekStwn FkkA eqag rFkk xzkl uyh dUtsLVMZ FkhA isV esa v/kipk [kk|,

inkFkZ fdMuh ekStwn FkkA,

5- yhoj] Liftal ,o@a dUtsLVMZ FksA",

Hkhrjh ,oa ckgjh tkUusfnz; dk ijh{k.k %&¼izkbZoVs ikVZl] xqIrkaxksa dk ijh{k.k½",

6- nkusksa yhfo;k fjtksyk lwts gq, Fks] dUVwt Fks] ,oa uhys jxa ds Fks yhfo;k ekbtksMk dUVstLVZMZ Fks rFkk cStkbuk ds pkjksa vkjs dUVwtu",

lwtu ekStnw FkhA ,d QVk gqvk ?kko 5 les hx5les hx2-5les h0 6 vksdyk iksthlu ij Fkk ;g ?kko cstkbu dh nhoky ls 'kq: gksdj cstkbuk jhtu dh peM+h rd",

Qsyk Fkk bldh eftZ;u yky Fkh tek gqvk [kuw ekStwn FkkA Ldu gkbeu cstkbuy ikslk] QkslZ ,DV] yhxkesUV] e'kyl] ;g lc QVh gqbZ FkhA [kuw ds",

FkDds tka?k ij ekStnw Fks] cstkbuk dUtsLVZM Fkh] ;wdjs k lfoZl ;g lkekU; Fkh] iSjhV;w y esa dksbZ [kuw ekStnw ugha FkkA,

7- I;wch [kSj] ctLM ,oa bUtqvjh Mcyi ugh FksA nks LykbM cuk;h xbZ vkSj iqfyl dks lkSaih xbZ FkhA diMks dks lhycan iqfyl dks fn;k x;k FkkA",

e`R;q dk dkj.k gekjs er ds vuqlkj ,Dlihfl;k gS tks LVsfxayls u ds dkj.k gksuk izrhr gkrs k gSA e`R;q 12 ls 24 ?kaVs ds Hkhrj vkuk izrhr gkrs k gSA jsi",

gkus s ds lk{; ekStnw FksA e`frdk ds lkFk cykRdkj gksus ds lk{; ekStnw FksA^^,

There is no material contradiction on the crossexamination. So considering the reason of death due to asphyxia because of strangulation the nature,

of decease was homicidal. Medical evidence of rape is available. Â So it is proved that death of deceased id homicidal and she was raped.,

Next question which now arises for consideration is that appellant committed rape on deceased and caused death of deceased. Â It is also to be,

seen that the findings of the learned Trial Court are correct or erroneous. For this purpose we will have to scrutinize the evidence led by the,

prosecution. There is no direct evidence of the incident and the case of prosecution is based upon circumstantial evidence. Prosecution should have,

proved each incriminating piece of evidence satisfactorily by cogent and reliable evidence.,

The Apex Court in the case of Sharad Birdhichand Sarda vs State of Maharashtra, (1984) 4 SCC 116 has held as under in regard to conviction on",

the basis of circumstantial evidence:-,

“153. ….....The following conditions must be fulfilled before a case against an accused can be said to be fully established on circumstantial,

evidence: (1) the circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established,",

(2) the facts so established should be consistentonly with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any",

other hypothesis except that the accused is guilty,",

(3) the circumstances should be of a conclusive nature and tendency,",

(4) they should exclude every possible hypothesis except the one to be proved, and",

(5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the,

accused and must show that in all human probability the act must have been done by the accused.â€​,

The Hon'ble Apex Court has further considered the aforesaid judgment in the case of Nathiya vs State Represented Through Inspector of,

Police,Bagayam, (2016) 10 SCC 208 and has held as under:-",

“26. The classic enunciation of the lawpertaining to circumstantial evidence, its relevanceand decisiveness, as a proof of charge of a criminal",

offence, is amongst others traceable to the decisionof this Court inSharad Birdhichand Sardavs. Stateof Maharashtra(1984) 4 SCC116. The relevant",

excerpts from paragraph 153 of the decision is assuredly apposite:,

“153...(2) The facts so established should beconsistent only with the hypothesis of the guilt of the accused...they should not be explainable on,

anyother hypothesis except that the accused is guilty, (3) the circumstances should be of a conclusive nature and tendency.",

 * * *,

(5) there must be a chain of evidence socomplete as not to leave any reasonable ground for the conclusion consistent with the innocence of the,

accused and must show that in all human probability the act must have been done by the accused.†27. As recently as in Sujit Biswas vs. State of,

Assam(2013) 12 SCC 406 and Raja @ Rajendra vs. State of Haryaya (2015) 11 SCC 43, it has been propounded that in scrutinizing the circumstantial",

evidence, a court is required to evaluate it to ensure that the chain of events is established clearly and completely to rule out any reasonable likelihood",

of innocence of the accused. It was underlined that whether the chain is complete or not would depend on the facts of each case emanating from the,

evidence and no universal yardstick should ever be attempted. That in judging the culpability of the accused, the circumstances adduced when",

collectively considered, must lead only to the irresistible conclusion that the accused alone is the perpetrator of the crime alleged. That the",

circumstances established must be of a conclusive nature consistent only with the hypothesis of the guilt of the accused, was emphatically",

propounded.â€​,

The first incriminating circumstance said to have existed against appellant is that he had cordial relations with the family members of the deceased,

and due to these relations and belief appellant had a chance to wander with deceased. Kuresha (PW/6), mother of deceased in her deposition stated",

that she knows the accused and there was cordial relationship between her husband and the accused and he was living with her husband in their,

house. When her husband went to Bombay, she told her husband to tell the accused to manage his stay some where else, then the accused started",

living at her father's house. Her children used to call the accused as “Chacha†and they were friendly with him. Jumman (P.W. 1), Sharif Nisha",

(P.W.4) and Beeti Bai (P.W-5) deposed the same facts in their evidence. Appellant admitted in his accused statement that he lived in the house of,

Jumman (PW-1) on rent. Aforesaid facts seems to be true. Therefore, it is proved that there existed cordial relations between appellant and deceased",

due to which appellant had every chance to takeout deceased from the custody of her guardian.,

According to prosecution second circumstance is that appellant took deceased from the custody of her mother Kuraisa (P.W. 6) and thereafter,

she was not seen alive.,

Jumman Khan (PW-1), who had lodged the report has stated in his deposition that on that day, there was Bakrid festival and guests were eating",

food and deceased was playing with other children outside. At around 08:00 in the evening, mother of deceased came to him and asked about",

deceased, she told him that deceased is missing. Thereafter he went with his family members to search for deceased but she was not found. Kodulal",

and her wife informed him that deceased went with her uncle (Accused-Om Praksh Sahu) in his auto. He further stated that the accused came back,

to his house after some time and on asking about deceased, Accused told that he had left deceased near temple after roaming in his auto. When,",

deceased was not found, thereafter a missing complaint was lodged at Police Station, Kolagawan. On the next day in the morning, when he was going",

to bus-stand for making announcement of the name of deceased, some women were shouting that the corpse of a girl child was laying beside the",

garbage of Tikrua Tola Hawai Adda and dogs were screwing her body. He went to the spot and found that the dead body of deceased was lying,

there. She was dressed-up but her underwear was not there. On the basis of his statements, police registered the marg as Ex. P/1 and he signed the",

same.,

Sharif Nisha (P.W. 4) and Kuraisa P.W. -6 deposed same facts. Beeti Bai (P.W. 5) deposed in her statement that appellant had taken deceased,

by auto. Nafis Khan (P.W 7), Kodulal @ Santosh (P.W 8) and Lallu Yadav (P.W 9) deposed the same facts in their evidence. Nafis Khan P.W. 7",

clarified that when he was sitting in front of fire place, then appellant came here in auto and sat down with them. In that auto deceased was also there",

and was playing with other children. Thereafter the accused had taken away deceased for wandering in his auto. There is no enmity of these,

witnesses with appellant and, therefore, there was no reason for them to falsely implicate the appellant in such a grave false case. Â When Kuraisa Bi",

(PW 6) came to these witnesses and asked about the deceased then at that time these witnesses told Kuraisa Bi that appellant had taken the,

deceased by auto. These witnesses clearly deposed that thereafter deceased did not come back and was not seen alive. All these witnesses deposed,

that in the morning dead-body of the deceased was found at the spot. So this circumstance is also proved by cogent and reliable evidence that,

appellant had taken the deceased from the custody of Kuresha Bai (P.W. 6) and after that she was not seen alive and her body was found in the,

morning.,

Investigating Officer, Shri B.D. Pandey (P.W. 9) deposed in his evidence that he reached the spot. He prepared Lash Panchnama of deceased",

vide Ex. P-3 and spot-map vide Ex. P-4. Jumman Khan (P.W.1), Karim Khan (P.W. 2) and Sohan Banafar (P.W. 3) deposed same fact. Although",

Kodulal declared hostile and some contradiction and omission have come in the evidence of witnesses; but due to this evidence of witness cannot be,

discarded. So second circumstance is also proved.,

Hon’ble Apex court in the case of Lahu Kamlakar Patil and another Vs. State of Maharashtra (2013) 6 SCC 417 held as under:,

“15. It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In Rameshbhai Mohanbhai Koli and Others v. State of,

Gujarat[1], reiterating the principle, this Court has stated thus:Â '16. It is settled legal proposition that the evidence of a prosecution witness cannot be",

rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witnesses cannot be,

treated as effaced or washed off the record altogether but the same can be accepted to the extent that their version is found to be dependable on a,

careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana[2], Rabindra Kumar Dey v. State of Orissa[3], Syad Akbar v. State of",

Karnataka[4] and Khujji v. State of M.P.[5]),

In Takdir Samsuddin Sheikh v. State of Gujarat and another, [(2010) 10 SCC 158] it is held by their Lordships",

It is settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the contradictions/ omissions/",

improvements/ embellishments etc. had been of such magnitude that they may materially affect the trial. Minor contradictions, inconsistencies,",

omissions or improvements on trivial matters without affecting the case of the prosecution should not be made the court to reject the evidence in its,

entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses and the appellate court in natural,

course would not be justified in reviewing the same again without justifiable reasons. (Vide: Sunil Kumar Sambhudayal Gupta (Dr.) & Ors. v. State of,

Maharashtra, (2010) 13 SCC 657).",

Which contradictions and omissions have come in the evidence of the witnesses are trivial in nature. Such contradictions and omissions do not effect,

the credibility of the witnesses. So second circumstance is also proved.,

According to the prosecution the third circumstance is injury of the deceased. Dr. S.B. Singh (PW-15) who has examined the appellant-accused,

and opined that:,

ftlds ijh{k.k ,oa iqfyl }kjk ekaxs x;s vfHker }kjk fuEukuqlkj y[s k fd;k x;kA",

1- O;fDr lsyqyj ,oa dkslZ (sexual intercourse) ds dkfct FkkA",

2- fNyu Ldsi ds lkFk -3x-2 ls0eh0 iMh isful dh peMh ij cka;s rjQ ckgj dh vksj Xykl ds Msl ij ;g lstqyj bVa j dkslZ ds le; gks ldrh FkhA,

3- lheu dh nks LykbM rS;kj dj lhy cna djds mls iqfyl dkaLVscy dks ns nh xbZ Fkh tSlk iqfyl }kjk pkgk x;k FkkA,

4- Nksyu Ldsi ds lkFk %&,

1- cka;h dykbZ ij 1-2x1 les h0 ¼iMh½ ckgj dh vksj 2- cka;s gkFk dh dykbZ esa ihNs dh vksj igys vkSj nlw js esVkdkj ij Åijh Hkkx ij -1x-,d lseh0",

FkhA,

3- Nhyu Ldsi rFkk lwtu ds lkFk cka;s Vkax esa Åijh Hkkx ij yVs leSykjs l ds uhps tks  1-2x-6 les h0 ¼iMh½ FkhA,

4- Nhyu Ldsi ,oa lwtu ds lkFk cka;s ?kqVus esa lkeus fupys Hkkx ij 1-2x-2 ls0eh0 ¼frjNh½ FkhA bUtqjh uca j 2 ,oa 4 tks 48 ?kVa s ds vanj igpqa",

k;h xbZ Fkh cka;s gkFk gh bUtqjh uk[kuw ls igpqa k;h tk ldrh Fkh vkSj lk/kkj.k izd`fr dh FkhA ck;a h Vkax ,oa ?kqVus dh bUtqjh gkVZ vkQ cyaFk",

}kjk igqapk;h xbZ Fkh tks lk/kkj.k izd`fr dh FkhA igyh bUtqjh lk/kkj.k izd`fr dh FkhA ejs s }kjk vkjksih dk esfMdy ijh{k.k fd;k x;k Fkk vkSj ijh{k.k,

fjikVs Z nh xbZ Fkh tks iz0ih0 14 gS ml ij , ls , Hkkx ij esjs gLrk{kj gSA^^",

Although appellant has given explanation that he was beaten up by the people due to which said injuries were caused on his body but it is crystal clear,

from the evidence of Dr. S.B. Singh (P.W. 15) that there was one injury on the penis of the appellant. Appellant has not given satisfactory explanation,

as to how this injury came to be caused. So this important circumstance is also proved. 20. According to prosecution fourth circumstance is seizure of,

articles from the spot, from the accused and deceased. Shri B.D. Pandey, P.W. 9 deposed in his evidence that one button of shirt, omelet with bread,",

broken pieces of locket were seized from the spot vide Ex. P-6. He also deposed that he took custody of appellant during investigation. He seized,

shirt, pant, nylon rope on the information of the appellant vide Ex. P-8. These articles were sent to F.S.L . Report of F.S.L is Ex. P-20. According to",

this report the button which was seized from the spot was similar to the buttons found in the seized shirt of the appellant, from which one button was",

missing. Appellant accused did not give any explanation about this button. So it is proved that the button which was found on the spot was of the shirt,

seized from the appellant. So this circumstance is also proved.,

Dr. Preeti Nema (P.W. 11) and P.D. Agrawal (P.W. 12) performed autopsy of the deceased. They seized a scarf from the neck of the deceased.,

They prepared two slides of the deceased. Dr. S.B. Singh (P.W. 15) examined the accused. He prepared two semen slides of the accused. Semen,

slides and seized cloths were sent to F.S.L Sagar for medical examination. Ex. P-20 is examination report of slide and cloths which shows semen and,

sperm on the Chaddi (underwear) of the deceased. Apart from that human blood B Group was found on the pant of appellant and scarf of deceased.,

It shows that this scarf was used for strangulating deceased. Pant of accused and scarf of deceased are connected with the said offence. Accused,

did not give any explanation how the Blood of B Group was came on his pant. Thus this circumstance is also proved.,

Although appellant produced Prabhat Singh as D.W. 1 in his support who deposed that appellant has falsely been inplicanted in this case due to,

enmity. But he admitted that he had no knowledge of the cause of death of deceased victim. The heinous crime had happened in the society but he,

deposed that he had no knowledge of the incident. It is purely unnatural, so this witness is not reliable.",

Once these crucial pieces of documentary evidence and the factual links in the story of the prosecution have been duly proved by the witnesses by,

circumstantial evidence, there is no occasion for this Court to doubt that the prosecution has not been able to prove its case beyond reasonable doubt.",

In our considered opinion, the principle laid downby Hon’ble Apex Court in the case of Birdhichand Sarda (supra), in regard to cases of",

circumstantial evidence are completely satisfied in the present case. The circumstances and the chain of events proved by the prosecution is fully,

established and have been proved by prosecution successfully.,

We shall tentatively examine the facts of the present case in light of the above principles. First and foremost is that the crime committed by the,

accused is heinous and inhuman. There is one 26 years old person, who took advantage of trust belief by taking her in auto and committing the rape on",

her. Further intending to destroy the entire evidence and the possibility of being identified, he kills the minor child. So the prosecution has been able to",

establish its case beyond any reasonable doubt. So the findings of learned Trial Court that appellant committed rape and murder of victim deceased is,

not based upon proper and cogent evidence.,

PW-6 Kuresha has stated that her children called the accused by calling “chacha†then the another aspect of the matter is that minor child,

was helpless in the cruel hands of the accused. The accused was holding the child in a relationship of `trust-belief' and `confidence', in which capacity",

he took the child from in front of the house of PW-6. Â the accused, by his conduct, has belied the human relationship of trust.",

In view of the matter, in our opinion, the trial court has rightly convicted the appellant guilty for commission of the offence. Accordingly, we do not",

find any merit in this appeal, the same is hereby dismissed.",