Vinod Tyagi vs State of Madhya Pradesh

The appellant has preferred the present appeal being aggrieved with the judgment dated 22.11.2006 passed by the Special Judge under the Madhya Pradesh Dakaiti Aur Vyapaharan Prabhavit Kshetra Adhiniyam, 1981 (for brevity "the MPDVPK Act") Gwalior (M.P.) in Special Sessions Case No.145/2002 whereby the appellant has been convicted of offence under Section 364A of IPC read with Section 13 of the MPDVPK Act, 302/34 of IPC read with Section 13 of the MPDVPK Act and Section 201 of IPC and sentenced to undergo imprisonment for life with a fine

of Rs.500/-, imprisonment for life with a fine of Rs.500/- and rigorous imprisonment for seven years with a fine of Rs.500/- respectively.

(2) Prosecution''s case, in short, is that Banti, brother of Gyan Singh (PW-20), was the student of Shilpi School, Pinto Park, Gwalior (M.P.) On 04.10.2002 Banti went to Pinto Park market in the evening and thereafter he did not come back to his house. Initially, complainant Gyan Singh Rathore (PW-20) and his family members thought that Banti would have gone to their another house. On 05.10.2002 when he was not found at another house then he was traced amongst his friends and others. On suspicion, Gyan Singh Rathore (PW-20) along with various persons went to the house of the appellant where the accused Afzal was present, however, appellant also came to the house after sometime. On asking, appellant Vinod Tyagi told the complainant Gyan Singh Rathore (PW-20) that the deceased Banti was kidnapped and he would receive a letter relating to demand of ransom, shortly. Thereafter, Gyan Singh Rathore (PW-20) went to the Police Station Gola Ka Mandir, Gwalior (M.P.) and lodged the FIR Ex.P-1. ASI Mr. R.S. Choudhary (PW-8) started enquiry but he could not get any clue of the deceased. DSP Mr. Rakesh Sinha (PW-14) started investigation after registration of the case. He could trace accused Vinod Tyagi on 09.10.2002 and he was asked about the deceased Banti. Appellant Vinod Tyagi gave a confessional statement memo Ex.P-6 in which he accepted that he along with other persons killed the deceased Banti by strangulation and dead body of the deceased was hidden in a field whereas pant and shirt of the deceased along with scarf of the

appellant had been thrown in the well of one Kushwah. He also gave information that the kidnapping of Banti was done by using a scooter and that was lying in his rented house at New Ram Vihar Colony, Gwalior (M.P.). Memo under Section 27 of the Evidence Act relating to accused Afzal was also recorded.

(3) Thereafter, on showing the dead body of the deceased by the appellant Vinod, the same was recovered by a seizure memo Ex.P-8. Actually, the dead body was highly decomposed and a few bones were found at the spot. Thereafter, on showing the well by the appellant, one constable Munnalal (PW-19) dived into the well and recovered the clothes, scarf and a rope from it and the same were seized by seizure memo Ex.P-11. After perusal of the clothes etc. the dead body of the deceased Banti was identified and a memo Ex.P-9 was prepared. One scooter bearing registration number MP07 Y/0681 along with registration book was recovered from the appellant Vinod and a recovery memo Ex.P-13 was prepared. The dead body of deceased Banti was sent for post mortem. Dr. J.N.Soni (PW-15) conducted the post mortem and gave his report Ex.P-20. According to him, the dead body was of a very young child aged between 12-14 years. Since the body was highly putrefied and vital organs of the body were missing, the cause of death could not be ascertained. After due investigation, the charge-sheet was filed by the prosecution.

(4) The appellant abjured his guilt. He did not take any specific plea in the case, hence, no defence evidence was adduced.

(5) The charge-sheet was filed against four persons out of

which the accused Afzal Khan and Lalla Jatav were shown to be absconding whereas the trial court acquitted the accused Nabi Khan, however, the appellant was convicted and sentenced as mentioned above.

(6) We have heard the learned counsel for the parties at length.

(7) In the present case, there is no eyewitness to the prosecution story. Entire case depends upon the circumstantial evidence and therefore the chain of circumstantial evidence is to be considered by discussing each and every piece of chain separately. The first piece in the chain of circumstantial evidence was the fact of last seen. In this connection, Amar Singh Rathore (PW-4), Ramniwas Rathore (PW-5), Pinto Rathore (PW-10) etc. were examined. Out of them, Pinto Rathore (PW-10) did not give any information about the deceased and the appellant before the trial court. Amar Singh Rathore (PW- 4) has stated that on 06.10.2002, he had seen the appellant Vinod and accused Afzal with the deceased Banti. He was smoking at a Paan shop where appellant Vinod and co- accused Afzal visited there on a scooter for smoking and Banti was sitting in between Vinod and Afzal on the scooter. In the evidence of this witness, no material contradiction or omission could be obtained. Amar Singh Rathore (PW-4) accepted the suggestion that he knew the deceased Banti and his brother Gyan Singh Rathore (PW-20), but he did not ask deceased Banti as to why he was roaming with the appellant. He gave an explanation that since Banti was known to the appellant and in the past he was found with the appellant on some occasions, hence, he did not interrupt in the company of the deceased and the

appellant. The evidence given by Amar Singh Rathore (PW- 4) appears to be a natural evidence and the trial court has rightly believed this witness. Similarly, Ramniwas Rathore (PW-5) has stated that on 04.10.2002, he was taking snacks in a hotel of Chotiwala and appellant Vinod along with co-accused Afzal and the deceased Banti came there and they took Dosa and thereafter they went back. This witness has also explained that since Banti and the appellant Vinod were found in each other''s company in the past, hence, neither he intimated Gyan Singh Rathore (PW- 20) nor did he interrupt in the talks of the deceased Banti and appellant Vinod. Explanation given by the witness is acceptable. No enmity of this witness could be proved against the appellant and therefore his evidence is acceptable. The trial court has rightly found that soon before the incident the deceased Banti was found with the appellant Vinod Tyagi.

(8) The next circumstance is the extra judicial confession made by the appellant before Gyan Singh Rathore (PW-20), Mahesh Singh Yadav (PW-7) and Mukhiram (PW-22). These witnesses have stated that on the basis of suspicion they went to the room of the appellant in search of the deceased Banti. Initially, appellant was not found at the room but after sometime he came there by the scooter and on enquiry, first of all, he avoided the questions of Gyan Singh Rathore (PW-20) but thereafter he accepted that he kidnapped the deceased Banti and a note relating to demand of ransom would be received by complainant Gyan Singh Rathore (PW-20) shortly. Then, Gyan Singh Rathore (PW-20) stated that he had gone to the police station at Gola Ka Mandir and lodged the FIR Ex.P-1. Testimony of these witnesses relating to extra judicial confession of the appellant Vinod Tyagi is duly corroborated by the FIR Ex.P- 1. Since the FIR was lodged on 05.10.02 and the appellant could be arrested on 09.10.2002, it cannot be said that a false FIR was lodged by complainant Gyan Singh Rathore (PW-20) on the basis of suspicion. Description of FIR clearly indicates about the role of the appellant Vinod Tyagi and his companions. Such role could not be brought into the knowledge of Gyan Singh Rathore (PW-20) and witnesses Mahesh Singh Yadav (PW-7) & Mukhiram (PW- 22) unless information was given by appellant Vinod himself. It would be apparent that the FIR Ex.P-1 was lodged on 05.10.2002 whereas appellant Vinod Tyagi could be arrested on 09.10.2002 and therefore it would be also apparent that the appellant Vinod had absconded from his house on 05.10.2002 and his conduct clearly indicates that he confessed before the witnesses including Gyan Singh Rathore (PW-20) and thereafter being guilty conscious he absconded. Though compliance under Section 157 of Cr.P.C. is not shown by the police but in the present case delay in FIR is not an important fact. It was natural for the complainant Gyan Singh Rathore (PW-20), other relatives and friends to search the deceased Banti first at various places where he could possibly be found and when he could not be traced and the appellant confessed about his kidnapping then only it could be possible for the complainant Gyan Singh Rathore (PW-20) to lodge the FIR. Looking to the evidence given by ASI R.S. Choudhary (PW- 8), he started investigation soon after the lodging of FIR Ex.P-1 but he could not trace the appellant Vinod Tyagi. However, the conduct of ASI R.S. Choudhary (PW-8) clearly indicates that the police machinery has started investigation soon after the lodging of FIR and therefore the FIR was lodged within reasonable time in which the fact of extra judicial confession has duly been mentioned. Hence, due to corroboration of FIR Ex.P-1, the evidence of Gyan Singh Rathore (PW-20), Mahesh Singh Yadav (PW-7) and Mukhiram (PW-22) is acceptable that the appellant has confessed before them that he kidnapped the victim/deceased Banti.

(9) The learned counsel for the appellant has submitted that the evidence of last seen and the extra judicial confession are weak type of circumstances. However, if conviction is to be recorded on the basis of only evidence of last seen or extra judicial confession then it is to be seen by the Court as to whether conviction can be recorded solely depending upon such single circumstance but where the chain of circumstantial evidence is complete then only by this reason that the evidence of last seen or extra judicial confession is a weak type of evidence, such evidence cannot be discarded. The trial court has discussed in detail by citing various judgments of Hon''ble the Apex Court while dealing with such arguments.

(10) The third circumstance which goes against the appellant is the enmity proved between complainant Gyan Singh Rathore (PW-20) and appellant Vinod Tyagi. According to Gyan Singh Rathore (PW-20), appellant Vinod Tyagi was his tenant and some illicit liquor had been found with the appellant Vinod Tyagi and therefore he had ousted him from his house as he was a criminal and at that time appellant Vinod Tyagi had threatened him that he would kidnap his son. In this connection, no challenge was given to the witness Gyan Singh Rathore (PW-20). It is an admitted fact that the appellant was the tenant in the house of Gyan Singh Rathore (PW-20) and thereafter he had to vacate that premises. Though the prosecution did not file the documents pertaining to the excise case of the appellant but since no challenge has been given to the witness Gyan Singh Rathore (PW-20) thereby the allegation made by him is acceptable and it is proved beyond doubt that appellant Vinod Tyagi was ousted from the house of Gyan Singh Rathore (PW-20) as a tenant because a raid of offence pertaining to M.P. Excise Act was made by the police and illicit liquor was found in the rented house of Gyan Singh Rathore (PW-20) which was in possession of appellant Vinod Tyagi. Possibility cannot be ruled out that the appellant would have thought that the liquor was seized on the information given by complainant Gyan Singh Rathore (PW-20). Hence, it is proved beyond doubt that there was enmity between appellant Vinod Tyagi and the complainant Gyan Singh Rathore (PW-20) to the extent that appellant could kidnap the deceased Banti to teach a lesson to the complainant Gyan Singh Rathore or to claim ransom from him.

(11) Enmity is a double edged weapon. Due to enmity, a person can falsely implicate his enemy or such crime could be done by the enemy. In the present case, if there was no enmity of the appellant with the complainant Gyan Singh Rathore (PW-20) and the deceased Banti was not in contact with the appellant Vinod Tyagi then there was no possibility for the complainant and the witnesses to visit the room of the appellant Vinod Tyagi in the search of deceased Banti. Before lodging of FIR, the complainant

Gyan Singh Rathore (PW-20) and the witnesses had visited the room of the appellant Vinod Tyagi which indicates that appellant Vinod Tyagi was in a position to take the deceased child Banti with him and it was possible that Banti could be found in the room of appellant Vinod Tyagi. Initially, complainant Gyan Singh Rathore (PW-20) did not take the matter seriously regarding the threat that was given by appellant Vinod Tyagi when he had vacated the house of the complainant Gyan Singh Rathore (PW-20) but when appellant accepted about the kidnapping of the child deceased Banti then complainant Gyan Singh Rathore had no option except to lodge the FIR and thereafter appellant absconded from his room where he was regularly residing. Hence, it is not a case in which it can be said that the appellant has been falsely implicated due to enmity. Actually, complainant Gyan Singh Rathore (PW-20) was not following any enmity when his house was vacated by the appellant but it was the appellant who was feeling annoyance because he was ousted from the house of the complainant Gyan Singh Rathore.

(12) Most important circumstance in the case is that the dead body of the deceased was found on the information given by the appellant. The Apex Court has opined in various cases that only by the fact that dead body was seized on the information given by the accused then only such circumstance is sufficient to convict the accused for the offence under Section 302 of IPC. In this connection, DSP Rakesh Sinha (PW-14), Subhash Rathore (PW-6) and Mukhiram (PW-22) have stated that on investigation, the appellant himself gave information about the dead body of the deceased, clothes of the deceased and scooter of

appellant. A memo under Section 27 of the Evidence Act, Ex.P-6, was recorded. Thereafter, the dead body which remained in bones was recovered from the field on information given by the appellant Vinod Tyagi and his companion Afzal Khan. One underwear and Hawai Chappal (footwear) were also found near the dead body. Learned counsel for the appellant submitted that Mukhiram and Subhash Rathore were the interested witnesses. Mukhiram (PW-22) was the person who had visited the house of the appellant Vinod Tyagi along with the complainant Gyan Singh Rathore (PW-20) when they were searching the deceased Banti and similarly Subhash Rathore (PW-6) was also Rathore by caste whereas the independent witnesses like Kotwar Darshan Singh (PW-12) etc. have turned hostile. He has also referred the statement of witness Jeetu Singh (PW-1) and Prahlad (PW-2) to show that they have turned hostile. People with little knowledge about the crime and investigation do turn hostile but that does not prove the innocence of accused. Mukhiram (PW-22) is not the close relative of complainant Gyan Singh Rathore (PW- 20). Similarly, if Subhash Rathore (PW-6) was a caste fellow of the complainant Gyan Singh Rathore (PW-20) then only by that fact he cannot be said to be an interested witness. The factual position of memo under Section 27 of the Evidence Act should be considered before discarding the evidence of Subhash Rathore (PW-6) and Mukhiram (PW-22) that after lodging the FIR Ex.P-1 appellant Vinod Tyagi was found absconding and he could be traced by DSP Rakesh Sinha (PW-14) with difficulty. When the extra judicial confession was made by the appellant Vinod before complainant Gyan Singh Rathore (PW-20) etc then it was

natural for the family members of deceased Banti to rush and to know the facts told by appellant Vinod Tyagi. The complainant Gyan Singh Rathore (PW-20) has also accepted that he had also visited the spot along with police force when they had gone to get the dead body of the deceased on information given by appellant Vinod Tyagi. Hence, no interestedness of the witness Subhash Rathore (PW-6) could be established with the complainant Gyan Singh Rathore (PW-20) and there was no enmity of the appellant Vinod Tyagi with the investigating officer DSP Rakesh Sinha (PW-14). From their statements, it is established that one skeleton dead body was recovered on the information given by appellant Vinod Tyagi.

(13) Similarly, DSP Rakesh Sinha (PW-14), Subhash Rathore (PW-6) and Mukhiram (PW-22) have claimed that the clothes of the deceased were found in a well and one rope was also found in that well. In this connection, evidence of constable Munnalal (PW-19) is important. DSP Rakesh Sinha (PW-14) and Munnalal (PW-19) have categorically stated that on the directions of the investigating officer, constable Munnalal (PW-19) went to the well and dived into water in search of clothes of the deceased and ultimately in second dive, he could find the clothes of the deceased and a rope. With the help of such clothes, the complainant Gyan Singh Rathore (PW-20) and other witnesses could identify the dead body which was found in the field, as the body of deceased Banti. In this connection, Dr. J.N. Soni (PW-15) has proved the post mortem report Ex.P-20 in which he has opined that on perusal of various bones it was the dead body of a very young male child aged 12-13 years. Various suggestions

were given to Dr. Soni but he is an expert who has been specially posted in the Forensic Science Department of Medical College and he has a vast experience to deal with such skeleton dead bodies. Hence, no doubt is created that it was the dead body of a male child aged 12-13 years. Since the complainant Gyan Singh Rathore (PW-20) and others identified the dead body on the basis of clothes etc. recovered on the basis of information given by appellant Vinod Tyagi, identification memo Ex.P-9 cannot be discarded and it was proved beyond doubt that the appellant Vinod Tyati had shown the dead body of the deceased Banti and the same was recovered.

(14) Learned counsel for the appellant has submitted that the dead body could be noticed by various villagers and it cannot be said beyond doubt that the dead body was found on the information given by the appellant Vinod Tyagi. However, such submission cannot be accepted in the present case. The deceased Banti was kidnapped on 04.10.2002 whereas his dead body was found on 09.10.2002 in a skeleton form at a lonely place like field. If any of the villagers had noticed the dead body due to its foul smell of putrefaction then it would have been noticed before it could turn into a skeleton but looking to the position of the dead body which was recovered it is clear that it could not be noticed within time and it was noticed only on the information given by the appellant Vinod Tyagi. Hence, the trial court has rightly found that the dead body of the deceased and clothes of the deceased were recovered on the information given by the appellant.

(15) So far as the recovery of scooter is concerned, the scooter was of the appellant and there was no eyewitness

to give the scooter number, for the same was used by the appellant in kidnapping the deceased Banti. The witnesses of last seen, namely, Amar Singh Rathore (PW-4) and Ramniwas Rathore have told that the appellant Vinod along with companion Afzal Khan and the deceased Banti were found on a scooter but the registration number of the scooter is possibly given by these witnesses after seizure of the scooter and therefore seizure of scooter is not an important fact in the present case.

(16) If all the circumstances are considered simultaneously then it is proved beyond doubt that there is the evidence of last seen that the appellant was found with the deceased Banti soon before the incident. The appellant has confessed before the complainant Gyan Singh Rathore (PW-20) and witnesses like Mukhiram (PW-22) and Mahesh Singh Yadav (PW-7) that he abducted the deceased Banti. Thereafter, he absconded and could not be traced till 09.10.2002. Dead body of the deceased Banti and his clothes were recovered from various places on the information given by the appellant Vinod Tyagi. If he had not participated in the crime, he would not have known the exact place of dead body and clothes of the deceased Banti. If all the circumstances are considered simultaneously then in the light of the judgment of the Hon''ble Apex Court rendered by it in the case of Sharad Birdhichand Sarda Vs State of Maharashtra [AIR 1984 SC 1622] chain of circumstantial evidence is complete and only a conclusion can be drawn that the appellant Vinod Tyati had kidnapped the child Banti and killed him. The trial court has rightly convicted the appellant for the offence under Section 302 of IPC read

with Section 13 of MPDVPK Act.

(17) Learned counsel for the appellant has submitted that to prove the offence under Section 364A of IPC it is necessary that the kidnapping must have been done for demand of ransom. It is also submitted that no evidence is given that any ransom was demanded. However, in the case of offence under Section 364A of IPC it is not necessary to prove that ransom was paid or not. According to the complainant Gyan Singh Rathore (PW-20), appellant Vinod had stated that a demand note of ransom would be received by the complainant Gyan Singh Rathore shortly. It is apparent that in the present case, the deceased Banti was kidnapped for getting ransom however, when the appellant Vinod Tyagi was located to be involved in the crime on 05.10.2002 it is possible that thereafter he absconded and killed the deceased Banti so that he might not be prosecuted for the offence. Under these circumstances, it is established beyond doubt that the deceased Banti was kidnapped for demand of ransom so that the appellant Vinod Tyagi could get revenge from complainant Gyan Singh Rathore (PW-20) and the trial court has rightly convicted the appellant Vinod Tyagi of offence under Section 364A of IPC read with Section 13 of the MPDVPK Act.

(18) It is apparent from the circumstantial evidence that the deceased was killed at any other place and his dead body was thrown in a field whereas the clothes of the deceased Banti were dumped into the well of one Kushwah and also that the dead body as well as the clothes of the deceased Banti were recovered on the information given by the appellant Vinod Tyagi, therefore, it would be

presumed that he was involved in the destruction of evidence to save himself and companions so that they should not be punished for the offence either under Section 302 or 364A of IPC . Thus, the trial court has rightly convicted the appellant of offence under Section 201 of IPC.

(19) So far as the sentence is concerned, a minimum sentence is recorded by the trial court of offence under Section 302 / 34 and Section 364A of IPC and hence no further dilution is required on the question of sentence. Under these circumstances, there is no reason for any modification in the sentence recorded by the trial court against the appellant Vinod Tyagi.

(20) On the basis of the aforesaid discussion, there is no substance in the appeal preferred by the appellant and hence, it cannot be accepted. Consequently, the appeal filed by the appellant Vinod Tyagi is hereby dismissed by affirming the conviction as well as sentence recorded by the trial court for various offences.