Ramnivas vs State of M.P.

The present order shall govern disposal of Cr.A. No. 319/2000. (Rampal Singh vs. State of M.P.) & Cr.A. No. 320/2000 (Vinod Singh vs.

State of M.P.) as both arise out of the same impugned judgment of conviction.

The present appeals preferred u/s. 374(2) Cr.P.C. assail the judgment dated 06th April, 2000 passed in S.T. No. 176/89 rendered by 2nd

Additional Sessions Judge, Bhind whereby the trial Court has convicted the appellants Ram Pal Singh and Vinod Singh for the charge u/s 302/34

IPC and sentenced to suffer life imprisonment with fine of Rs. 5000/- each and u/s 201 /34 IPC sentenced to suffer seven years R.I. with fine of

Rs. 1000/- each with default stipulations.

Pertinently, the offence in question was originally registered against five accused namely Rampal Singh, Ram Singh @ Ramu, Vinod Singh,

Udaiveer Singh and Bharat Lal. Out of the said five accused two were and are absconding. The remaining three accused Rampal, Vinod and

Bharat Lal faced trial leading to acquittal of Bharat Lal was acquitted whereas Rampal and Vinod have been convicted for life imprisonment by the

impugned order, thus this appeal by the two.

Bare facts giving rise to the present case are that on 03.11.1988 deceased Satyendra Singh proceeded from Ahmadabad to his in-laws place at

village Mota Distt. Mainpuri, Uttar Pradesh. On reaching village Mota, the deceased Satyendra Singh went to his parental house at village Kodar

whereafter on 18.11.1988 he went to his maternal grand mother''s house at village Nagla Surjan wherefrom he returned to village Kodar on

20.11.1988. Thereafter on 21.11.1988 the accused Ramu and Udaiveer came to his village Kodar and went to roam around with the deceased.

The deceased and said two accused thereafter came back to village Kodar on 25.11.1988. On 26.11.1988 Vishwanath Singh (PW-19) made the

deceased board the Karhal - Sirajganj bus for reaching Agra. On 02.12.1988, Gariba Chaukidar informed the Police Station Dehat about

unidentified dead body which led to registration of Inquest No. 52/88 by (PW-23) S.S. Chauhan, Sub-Inspector, on the same date. The witnesses

were summoned to identify the dead body vide Ex.P-1 and Panchnama of unidentified dead body was prepared by Ex.P-2 and the spot map vide

Ex.P-3. The articles were recovered vide Ex.P-4 and the dead body was sent for postmortem which was conducted vide report Ex.P- 10. The

inquest revealed that on 26.11.1988 accused Udai Veer, Ramu @ Ram Singh met the deceased while deceased was on his way to Ahmadabad

and they enticed the deceased to come with them to Bhind. The deceased was taken to a rented room in Gandhi Nagar by accused Ram Singh

where he was tied to a cot. On 21.11.1988, accused Vinod Singh saw the deceased being taken to said room and on 01.12.1988 saw the

deceased tied to a cot inside the room. On 01.12.1988 in the night by inflicting injuries in the neck and face and by way of strangulation the

deceased was put to death. FIR Ex.P-26 was lodged. Investigation revealed that accused Ramu @ Ram Singh told the accused Vinod to secure

and confine the adbuctee so that the ransom money of 4 -5 lacs can be extorted. This revelation was made known to accused Bharat Lal Sharma

whereafter accused Ramu and Udai Veer abducted the deceased and brought him to Bhind and kept him confined in the house of Rampal Singh.

While the abductee-deceased was confined, the accused Bharat Lal had come to see him. On 01.12.1988 deceased some how escaped from

captivity but was caught by the accused. Thereafter accused Bharat Lal told the other accused that abductee may flee from captivity again and

therefore, it would be appropriate to kill and disfigure him so as to avoid recognition and thereafter parcel his clothes for obtaining ransom money.

Accused Ramu, Udaiveer and Rampal agreed for execution of the said scheme proposed by accused Bharat Lal. Therefore, in the night of

01.12.1988 the deceased was taken in confined state to Nalipura Ke Haar where the abductee was killed by strangulation and his face was

disfigured to make it unrecognizable. The clothes of the deceased were torn and put in the drain and also burried along with the rope used for

strangulation. Watch, ring and Niwar used for tying the deceased was taken by accused Vinod to his home. While accused Ramu and Udaiveer

took away the briefcase of the deceased. On 08.12.1988 and 06.01.1989 search of the house of accused Rampal Singh was conducted. The said

accused Rampal was arrested on 07.12.1988 vide arrest memo Ex.P-30 while the accused Udaiveer was arrested on 30.12.1988 vide arrest

memo Ex.P-24 and accused Vinod was arrested on 04.01.1989 vide arrest memo Ex.P-19. The confessional / disclosure statement of Vinod was

recorded vide Ex.P-22 which led to disclosure of three live cartridges which was seized vide Ex.P-21 and further recovery was made of HMT

watch, gold ring, Niwar and one .315 bore country made pistol on the inquest of accused Vinod. The plain and blood stained soil from the spot

was recovered vide Ex.P-33 along with a pant, looser, brief were seized by Ex.P-33. On the other hand, on the disclosure of accused Rampal

Singh ten articles were recovered vide Ex.P-34. On the revelation made by Guddu Nai, Ex.P-25 was prepared recovering 16 different articles.

One pair of shoes were also recovered from agricultural field of Bhoop Singh Yadav vide Ex.P-4. The register and receipt book were also seized

on being produced by Manager of Digamber Jain Dharamshala vide Ex.P-6. The briefcase of the deceased was recovered on 06.01.1989 vide

Ex.P-9 on the revelation of accused Rampal. Ramu @ Ram Singh was also arrested. During investigation, the statements of various witnesses

were recorded on different dates. On conclusion of investigation, charge sheet was filed before the court of competent jurisdiction. The accused

Rampal, Vinod and Bharat Lal abjured guilt and sought trial. The accused Rampal and Bharat in their statement u/s 313 Cr.P.C. raise the plea of

false implication while the accused Vinod also raised the plea of false implication on account of earlier animosity.

The prosecution in all produced 23 witnesses namely Daulatram (PW-1), Girdaval Singh (PW-2), Nathu Singh (PW-3), Rajesh (PW-4), V.K.

Jain (PW-5), Shiv Kumar Sharma (PW-6), Dr. Rakesh Sharma (PW-07), Ram Shankar Shukla (PW-8), Udal Singh (PW-9), Kamal Kumar

(PW-10), Bhup Singh (PW-11), Maithlisharan Gupta (PW-12), Rajendra Singh (PW-13), Sanjiv Kumar Sharma (PW-14), Gyan Singh(PW-15),

Jandel Singh (PW-16), Rambhadur Singh (PW-17), Dular Singh (PW-18), Vishwanath Singh (PW-19), Madhav Rao (PW-20), Ummed Singh

Tomar(PW-21), Sunil Sharma (PW-22), S.S. Chauhan (PW-23). Prosecution also exhibited documents from Ex.P-1 to Ex.P-34. The defence

examined Shivnath Singh and Ramdeen as DW-1 and DW-2. In support of their case, no evidence was produce by any of the accused in support

of their defence.

Learned trial judge framed certain questions and thereafter marshelled the evidence adduced on record and rendered the impugned judgment by

which appellant Rampal and Vinod were convicted for the offence u/s 302 read with 34 IPC to suffer life imprisonment along with fine and default

stipulations. However, the accused Bharat Lal was acquitted. Pertinently, the other accused Udaiveer and Ramsingh were and are absconding and

therefore, no trial in their respect was conducted.

The entire prosecution is based primarily on circumstantial evidence including testimony of Jandel Singh (PW-16) who last saw the deceased

being taken by the accusedat around 11:00 pm in the night intervening 01.12.1988 and 02.12.1988.

7.1. Jandel Singh (PW-16) in his testimony states that while he was taking his cow, which was on heat for getting inseminated, at about 11:00 pm

on 01.12.1988 he saw four persons dragging a person who was tied with a rope made of Niwar. The tied person was aged about 20-22 years

and was wearing grey colour pant, checked shirt and looser. Four persons were dragging this tied person. PW-16 further states that among four

persons he recognizes Vinod and Ramu @ Ram Singh. In his examination-in-chief said witness states that street light was available at the relevant

point of time for recognizing the said two persons among four persons while in the cross-examination the said witness contradicts this statement by

deposing that in Gandhi Nagar where he witnessed the said incident there was no street light. This witness has also made contradictory statement

by submitting that said incident of witnessing the four persons including appellant Vinod and Ramu was disclosed by him for the first time to

Ummed Singh Tomar (PW-21). However, PW-21 ( Ummed Singh) in para 21 of his deposition denied that he was ever informed of the said

incident by Jandel Singh (PW-16). PW-16 has also stated that he did not inform the said incident to any one at the relevant point of time and also

did not make any attempts to cry out for help or by personally approaching the four persons including Vinod and Ramu, to save the person who

was being dragged in a tied state. PW-16 has also said that after witnessing the said incident he returned home immediately and did not go further

in search of any bull for insemination of his cow. Thus, the version of PW-16 that he was taking his cow for insemination at 11:00 pm in the night

appears to be some what unnatural since he could have waited for the day to break for inseminating his cow as it is well known that a cow remains

on heat for a period which ranges between 8 hours to 30 hours. Thus, the presence of PW-16 at the spot where the appellant are said to be

dragging the deceased in a tied state is doubtful but the fact remains that this aspect of the matter has not been put up by the defence by

questioning the PW-16 by making any suggestion in the crossexamination and therefore, the deposition of PW-16 revealing that he was present at

11:00 pm and having witnessed Vinod and Ramu @ Ram Singh (acquitted) dragging and taking the deceased in a tied state is established beyond

reasonable doubt. Thus, as regards Vinod Singh one of the appellant before this Court today, last seen evidence in shape of testimony of PW-16 is

available.

More so, various seizures of different articles have been made on the disclosure made by appellant Vinod, which belonged to the deceased and

have been proved to be either in possession of the deceased or to be worn by the deceased at the time when he was last seen by his uncle

Madhav Rao (PW-20) and duly identified in the TIP by the father and uncle of the deceased which fact is evident from perusal of paragraphs 22

to 25 of the impugned judgment. Pertinently, number of articles seized on the disclosure of appellant Vinod were such which where hidden and not

exposed to public view and therefore, the factum of they being hidden was known exclusively to the appellant Vinod Singh which further points to

Vinod''s complicity.

As regards the other appellant Ram Pal Singh, who was arrested on 07.12.1988, it is seen that this appellant is said to be in occupation of the

room where the deceased was kept tied and confined. The said room was searched but no article or other material related to the deceased was

recovered from the appellant Ram Pal Singh or on his behest. It is further noticable by the material placed on record that the factum that the room,

where the deceased was kept confined, was in occupation of appellant Ram Pal Singh in capacity of tenant, is not established by any evidence,

oral or documentary. The factum of occupation of the room by the appellant Ram Pal Singh is based on figment of imagination. Another finding

recorded by learned trial judge in para 15 of the impugned judgment is that piece of Niwar with which the deceased was tied was found on the

disclosure statement made by Ram Pal Singh which does not appear to be correct.

From the above analysis, though the chain of circumstances linking the appellant Vinod Singh (Criminal Appeal No. 320/2000) to the crime

alleged appears to be completed but in regard to appellant Ram Pal Singh (Criminal Appeal No. 319/2000) the chain of circumstances does not

appear to be completed due to the missing link of the failure of the prosecution to prove beyond reasonable doubt that the room in question where

the deceased had been tied and confined, was in occupation of appellant Ram Pal Singh in capacity as tenant. In this regard, there is no

documentary evidence to establish except hearsay evidence which cannot be sufficient for this Court to safely hold the appellant Ram Pal Singh

guilty especially when the entire case is based on circumstantial evidence.

This Court is bolstered in its view by the decision of the Apex Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra

reported in AIR 1984 SC 1622 relevant extract of which is reproduced below :-

Before discussing the cases relied upon by the High Court we would like to cite a few decisions on the nature, character and essential proof

required in a criminal case which rests on circumstantial evidence alone. The most fundamental and basic decision of this Court is Hanumant Vs.

The State of Madhya Pradesh, 1952 SCR 1091 : ( AIR 1952 SC 343). This case has been uniformly followed and applied by this Court in a large

number of later decisions up-to-date, for instance, the cases of Tufail (Alias) Simmi v. State of Uttar Pradesh, ( 1969) 3 SCC 198 and Ramgopal

v. Stat of Maharashtra, AIR 1972 SC 656. It may be useful to extract what Mahajan, J. has laid down in Hanumant''s case :

It is well to remember that in cases where the evidence is of a circumstantial nature, the circumstances from which the conclusion of guilt is to be

drawn should in the first instance be fully established and all the facts so established should be consistent only with the hypothesis of the guilt of the

accused. Again, the circumstances should be of a conclusive nature and tendency and they should be such as to exclude every hypothesis but the

one proposed to be proved. In other words, there must be a chain of evidence so far complete as not to leave any reasonable ground far a

conclusion consistent with the innocence of the accused and it must be such as to show that within all human probability the act must have been

done by the accused.

A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be

fully established:

(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established.

I

t may be noted here that this Court indicated that the circumstances concerned ''must or should'' and not ''may be'' established. There is not only a

grammatical but a legal distinction between ''may be proved'' and ''must be or should be proved'' as was held by this Court in Shivaji Sahabrao

Bobade &Anr Vs. State of Maharashtra, (1973) 2 SCC 793 : ( AIR 1973 SC 2622) where the following observations were made:

Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance

between ''may be'' and ''must be'' is long and divides vague conjectures from sure conclusions.

(2) The facts so established should be consistent only 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.

On the basis of above discussion and the assessment of evidence, this Court is of the considered view that charge of murder against appellant

Vinod Singh (Criminal Appeal No. 320/2000) is established beyond all reasonable doubt based upon chain of circumstances which is complete.

However, the prosecution has failed to establish the charge of murder against the appellant Ram Pal Singh (Criminal Appeal No. 319/2000)

beyond all reasonable doubt.

Consequently, the Criminal Appeal No. 320/2000 (Vinod Singh Vs. State of M.P.) is dismissed. However, Criminal Appeal No. 319/2000 (

Ram Pal Singh Vs. State of M.P.) is allowed and the appellant Ram Pal Singh is directed to be released forthwith if he is not required in any other

case.