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HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR

Criminal Appeal No.2254/2006
Sadan Gond
V.
The State of M.P.

Ms. Durgesh Gupta and Ms. Pratibha Mishra, learned counsel for the
appellant.
Mr. Y.D. Yadav, learned Government Advocate for the
respondent/State.
Mohd. Siddique, learned counsel appointed as amicus curiae.
PRESENT:
HON’BLE SHRI JUSTICE H.P. SINGH
HON’BLE SHRI JUSTICE RAJEEV KUMAR DUBEY

JUDGMENT

(10/10/2017)

As per :- Rajeev Kumar Dubey, J

This criminal appeal has been filed against the judgment
dated 13/10/2006 passed by Ist Additional Session Judge, Betul in
ST.No.108/2005, whereby he found the appellant guilty for the
offences punishable under Sections 302, 376(2)/511, 363 and 366 of the
IPC and sentenced him to life imprisonment with fine of Rs.5,000/-,
R.I. for seven years with fine of Rs.50,000/-, R.I. for five years with
fine of Rs.3,000/- and R.I. for three years with fine of Rs.3,000/-
respectively with default stipulation.

2. Brief facts of the case are that on 18/01/05 at 12:00 AM
Sugantibai (PW/1) resident of Krishna Nagar, Badora, District Betul
lodged the report (Ex.P/14) at Police Station Betul Bazar averring that
at 9:00 A.M. she had gone for labour work, leaving her daughters Nisha
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and “Deceased A” (name and identity of the “Deceased A” is not
disclosed as imposed by law contained in section 228A of IPC) at home
and when she returned in the noon, both of her daughters were at home.
After lunch, she went to work again. Thereafter, when she returned
home at 6:00 P.M, her elder daughter Nisha was at home and preparing
food while “Deceased A” was not at home. On that, she went to the
field of Ramdeen Rathore in search of her daughter “Deceased A”, but
she did not find anyone. Thereafter, she saw the appellant, playing with
her daughter “Deceased A”. On that she called the prosecutrix, but she
did not come. She then returned back home and some time later again
went to appellant Sadan’s house, but she did not find either “Deceased
A” or appellant Sadan there. Then she searched her, but did not find
her. She doubted that appellant Sadan would have taken her
somewhere. On that report Police Inspector LR. Kohli, (PW/11)
registered Crime No.10/05 for the offence punishable under Section
363, 366, 376(2)(f), 302 of the IPC and investigated the matter. Next
day on 19/01/05 in the morning Nathuram (PW/7) saw the dead body of
“Deceased A” lying along the road (NH-69) side at Kishan Malviya’s
field and informed Sugantibai (PW/1). Then, Sugantibai (PW/1) again
informed the police about the same. On that LR. Kohli, (PW/11) went
to the spot and prepared spot map (Ex.P/16). He also prepared an
inquest report of the dead body of “Deceased A” in the presence of
panch witnesses and sent the dead body for postmortem to District
Hospital Betul, where Dr. Basant Srivastava (PW/4) conducted autopsy
of the dead body of “Deceased A” and gave postmortem report (Ex.P/3)
and also prepared the slides of her vaginal swab, took her blood sample
and also seized her clothes from her dead body and sent all the items in
six separate sealed packets through constable Rajkumar (PW/8) to P.S.
Betul Bazar. There Head Constable Dhanraj seized those packets from
the possession of Rajkumar (PW/8) and prepared seizure memo
(Ex.P/11). On 19/01/05 LR. Kohli, (PW/11) arrested the appellant and
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prepared arrest memo (Ex.P/1) and on the information of appellant
seized underwear of the “Deceased A”, slippers and shawl of appellant
from Ramdeen Rathore’s field and prepared information memo (Ex.P/9)
and seizure memo (Ex.P/10). Thereafter, he sent appellant to District
Hospital, Betul for medical examination where Dr. Basant Srivastava
(PW/4) examined appellant and gave the medical report (Ex.P/3). He
also took the sample of appellant’s hand’s nails, his blood sample and
prepared slide of his semen and after preservation of that samples sent
the same to P.S. Betul Bazar, through Constable Sitaram (PW/3), which
was seized by the LR. Kohli (PW/11) from his possession and prepared
seizure memo (Ex.P/15). He also recorded the case diary statements of
Sugantibai (PW/1), Ku.Nisha (PW/2), Krishna Baraskar (PW/6),
Nathuram Gond (PW/7), and Pintu @ Premraj (PW/10). After
completion of investigation, Police filed charge-sheet against the
appellant before Judicial Magistrate, First Class, Betul, who committed
the case to the Court of Sessions. On that S.T.No.108/05 was
registered.

3. Learned Ist Additional Sessions Judge framed charge
against the appellant for the offence punishable under Sections 363,
366, 376(2)(f), 302 of the IPC. Appellant took the defence that he is
innocent and has falsely been implicated in the case. Prosecution
produced as many as 11 witnesses to prove his case. However, learned I
Additional Sessions Judge after trial found the appellant guilty for the
offence punishable under Section 302, 376(2)/511 and 366 of the IPC
and sentenced him as aforesaid. Being aggrieved by the impugned
judgment, appellant has filed this Criminal Appeal.

4. Learned counsel for the appellant submitted that there is no
eyewitness of the incident. The prosecution case is solely based on
circumstantial evidence. It is settled that when there is no direct
evidence of the commission of offences, the case rests entirely on
circumstantial evidence, all the circumstances from which an inference
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of guilt is sought to be drawn must be cogently and firmly established.
While in this case no chain of circumstances has been proved by the
prosecution beyond reasonable doubt against appellant. Learned trial
Court merely on the ground that the accused was last seen along with
the “Deceased A” in the evening, found appellant guilty for the murder
of “Deceased A”, while only on that ground appellant cannot be found
guilty for the murder of “Deceased A” in absence of other direct
evidence. Prosecution produced the relative of the deceased as main
witnesses. No independent witness has supported the case of the
prosecution. There are many contradictions and improvements in the
statements of prosecution witnesses, so no reliance can be placed on
their statements. Learned trial Court without appreciating these facts
wrongly found appellant guilty for the offences. In this regard learned
counsel of the appellant also placed reliance on a judgment of Hon’ble
Apex Court passed in the case of Subhash Chand Vs. State of
Rajasthan, (2002) 1 SCC 702, wherein Hon’ble Apex Court has held
that the Court has to proceed to examine each of the pieces of
incriminating circumstantial evidence so as to find out if each one of
the circumstantial evidence is proved individually and whether
collectively it forges such a chain of incriminating circumstances as
would fasten the guilt on the accused beyond any shadow of reasonable
doubt. None of the pieces of evidence relied on as incriminating, by the
trial court and the High Court, can be treated as incriminating pieces of
circumstantial evidence against the accused. Though the offence is
gruesome and revolts the human conscience but an accused can be
convicted only on legal evidence and if only a chain of circumstantial
evidence has been so forged as to rule out the possibility of any other
reasonable hypothesis accepting the guilt of the accused. “Human
nature is too willing, when faced with brutal crimes, to spin stories out
of strong suspicions”. Between may be true and must be true there is a
long distance to travel which must be covered by clear, cogent and
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unimpeachable evidence by the prosecution before an accused is
condemned a convict.

5. On the other hand learned counsel appearing for the
respondent/State submitted that there is ample evidence on record to
prove the guilt of the appellant. Learned trial Court did not commit any
mistake in finding the appellant guilty for the aforesaid offence.

6. Point of determination in this appeal is whether the
conviction and sentence awarded by the trial Court to the appellant
under Sections 363, 366, 376(2)/511 and 302 of IPC is liable to be set
aside for the reasons stated in the memo of appeal and argued before
this Court.

7. On the point whether between 6 p.m. of 18/01/05 to 7 a.m.
of 19/01/05 “Deceased A” died due to asphyxia by smothering (kill
someone by covering their nose and mouth so that they suffocate) and
her dead body was found lying along the roadside (NH-69) at Kishan
Malviya’s field, Sugantibai (PW/1) mother of the deceased deposed that
on the date of incident at 6:00 PM when she returned to her house after
work, her daughter”Deceased A” was playing. Thereafter, when at 7:30
P.M. she went to take her daughter she saw that her daughter “Deceased
A” was not there. On searching, she could not find her. On the very
next day at about 6-7:00 am she found dead body of her daughter lying
in front of Maida Mill. Blood was oozing out from her nostril. Her
statement is also corroborated from the statement of Nathuram (PW/7)
who also deposed that in the morning when he was going to answer the
call of nature, on the way he saw dead body of a girl lying on the
roadside. The girl did not wear frock and underwear and was naked,
blood was coming out from the side of her lips. LR. Kohli (PW/11) in
his statement deposed that on 18/01/05 he was posted as Inspector at
Police Station Betul Bazar, that day Sugantibai lodged the report
(Ex.P/14) about missing of her daughter. On the report he registered
Crime No.10/05 for the offence punishable under Section 363, 366 of
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the IPC against the appellant. On 19/01/05 Sugantibai again came to the
Police Station and informed that the dead body of her daughter is lying
near the road. On that he went on the spot i.e. one k.m. away towards
East from Badora square, where the dead body of the “Deceased A”
was lying in a field. He prepared spot map (Ex.P/16) and also prepared
inquest report of the dead body of the “Deceased A” before panch
witnesses and found that the prosecutrix died due to asphyxia and
before her death somebody tried to rape her. His statement is also
corroborated from the inquest report (Ex.P/7), also proved by its
witness Shivlal (PW/5) and Nathuram (PW/7) and spot map (ExP/16).

8. Dr. Basant Shrivastava (PW/4) deposed that on 19/01/05 he
was posted as Medical Officer at District Hospital, Betul. On that day
on the application of Constable Rajkumar he conducted postmortem of
the dead body of “Deceased A”. On examination he found that the dead
body is of a female child aged about six-seven years. Rigor mortis was
present in all the limbs. Her face, lips and nails ecchymosed, blood
mixed froth was coming out from her nostrils, eyes were congested. He
further deposed that she found following external injuries on her body.

1. Multiple semi lunar abrasion (nail mark) with blood clots
each size 4 m.m. present over right upper and lower lid of
eye, nose tip, nasal bridge, left lower jaw and both earlobes.

2. Nail mark abrasion around neck size 4 mm.

3. Abrasion size 1 cm X 1/2 cm with blood clot on left buttock.

The injuries Nos. 1 2 were caused by nail scratch and
injury No.3 was caused by hard and blunt object.

9. He further deposed that on the examination of genital organ
of the “Deceased A” he found that her hymen was ruptured in 5 m.m.
diameter. Vagina admits one little finger with strains. Duration of death
was between 3-18 hours from the postmortem. In her opinion the
deceased died due to asphyxia and mode of death was smothering. In
this regard his statement is also supported from the postmortem report
(Ex.P/3).

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10. There is no significant contradiction in the statements of
the said witnesses on that point. So there is no reason to disbelieve the
statements of aforesaid witnesses on that point. From the statement of
these witnesses it appears that “Deceased A” was missing since
18/01/05 from around 7:00 pm and her dead body was found on next
the day i.e. 19/01/05 at around 7:00 am and from the statement of Dr.
Basant Shrivastava (PW/4) it is also proved that “Deceased A” died due
to asphyxia which was caused by smothering. He also stated that
duration of her death was between 3 to 18 hours from the postmortem
conducted by this witness at 11:15 am on 19/01/05 which also shows
that “Deceased A” died between 7:00 p.m. to 7:00 a.m. of 18-19/01/05.
Although Dr. Basant Shrivastava (PW/4) did not depose that death of
the “Deceased A” was homicidal in nature and amounts to murder, but
from his statement it is clear that “Deceased A” aged about six to seven
years died due to asphyxia and mode of her death was smothering,
which shows that somebody had killed her by covering her nose and
mouth, so that she suffocates and sexually assaulted her before her
death .

11. So from the statement of these witnesses it is clearly proved
that “Deceased A” died between 7:00 pm to 7:00 am of 18-19/01/05
due to asphyxia, which was caused by smothering and her death was
homicidal in nature which amounts to murder and somebody also tried
to commit rape with her before her death.

12. Although there is no direct evidence on record on the point
whether the appellant murdered “Deceased A” and also committed
sexual assault on her before her murder and the prosecution story is
based only on circumstantial evidence, but prosecution produced
following circumstantial evidence against the appellant :-

(i) Appellant was last seen with the “Deceased A”

before her death;

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(ii) On the information of appellant, Police seized his
shawl and underwear of the “Deceased A” stuck with
excreta.

(iii) At the time of examination of appellant on 19/01/05
smegma was not present on the appellant’s penis.

(iv) On 19/01/05 at the time of medical examination
excreta was also found on appellant’s trouser
underwear and blood stains on his nail.

13. Regarding point No.(i) Sugantibai (PW/1) mother of the
deceased deposed that on the date of incident when she returned home
at 6:00 pm after work, her daughters (“Deceased A” and Ku Nisha)
were with the appellant, who was playing with them. Thereafter, when
she went to take her daughters at 7:30 pm, she saw that the appellant’s
house was open and none was present there. On searching, she could
not find her. Thereafter, at 11:00 pm when appellant was found at his
house she enquired him about “Deceased A” to him. On that appellant
told her that he did not know about her. She then lodged the report. In
this regard her statement is also supported from the FIR (Ex.P/14)
which was also proved by the LR. Kohli (PW/11) and by the statement
of her elder daughter Ku Nisa (PW/2) who also deposed that appellant
lived near her house and on the date of incident “Deceased A” was
playing at appellant’s house. At 6:00 pm she came back to her house
and “Deceased A” stayed there. Later, when her mother went to
appellant’s house, both “Deceased A” and appellant were not there.
Thereafter, when at 11:00 pm, appellant was found at his house, her
mother enquired appellant about “Deceased A”, who told that he did
not know about her.

14. Although Sugantibai (PW/1) and Ku. Nisa (PW/2) are
relatives of the “Deceased A”, but their statements can not be
discarded only on that ground. Likewise, the point that at 11:00 pm
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when Sugantibai found appellant at his house and enquired him about
“Deceased A”, and he told her that he did not know about her is an
improvement in her Court statement. This fact is not mentioned in the
FIR (Ex.P/1) logged by her and her case diary statement (Ex.D/1). But
only on that ground her entire statement cannot be doubted. From her
statement which is also corroborated from the FIR (Ex.P/14) and also
by the statement of her elder daughter Ku.Nisha (PW/2) it is clearly
proved that on 18/01/05 at 6;00 pm “Deceased A” was last seen with
appellant and thereafter at 7 a.m on 19/01/05 dead body of “Deceased
A” was found lying along roadside in Premshankar Malviya’s farm as
mentioned in spot map (Ex.P/16).

15. Regarding point Nos. (ii), (iii) and (iv) LR. Kohli (PW/11)
deposed that on 19/01/05 he arrested the appellant and prepared arrest
memo (Ex.P/13) and sent him for medical examination and Dr. Basant
Srivastava (PW/4), who examined appellant in the hospital deposed that
on 19/01/2005 he examined the appellant and found excreta on his
underwear and trouser. So, he seized his underwear and trouser. On
examination he found that smegma was absent on his penis. In his
opinion the appellant is capable for intercourse. He also took the
sample of nails of appellant’s hand, his blood and also prepared slide of
his semen and after preserving that samples sent them to P.S. Betul
Bazar through Constable Sitaram (PW/3). His statement is fully
supported from the MLC report (Ex.P/3) given by him and statement of
Sitaram (PW/3), who also deposed that he took appellant Sadan for
medical examination and also took his clothes, slide and hand nails
sample from hospital in a sealed packet and produced that packet at
P.S. Betul Bazar, which was seized by the LR. Kohli (PW/11) from his
possession and prepared seizure memo (Ex.P/15).

16. Dr. Basant Srivastava (PW/4) also deposed that at the time
of autopsy of dead body of “Deceased A” he also seized her clothes
and prepared slide of vaginal swab and also took her blood and excreta
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sample and after preserving that samples, handed them over to the
concerned Constable in six separate sealed packets. Raj Kumar (PW/8)
deposed that on 19/01/2005 he was posted as Constable at Police
Station Betul Bazar. He took six sealed packets (containing viscera,
blood sample, slide of vaginal swab, stool and clothes of the deceased)
from the hospital, which were seized by the Head Constable Dhanraj
from his possession who prepared seizure memo (Ex.P/11).

17. LR. Kohli, (PW/11) further deposed that on 20/01/05 he
again interrogated the appellant and on his information he seized one
underwear, slippers of the “Deceased A”, and shawl of appellant from
Ramdeen Rathore’s field and prepared information memo (Ex.P/9) and
seizure memo (Ex.P/10), which were also proved by Krishna (PW/6)
and Premram @ Pintu (PW/10) panch witnesses of that memos. L.R.
Kohli, (PW/11) also deposed that on 26/02/05 he sent seized articles to
Forensic Science Laboratory, Gwalior alongwith letter (Ex.P/7).
Prosecution also produced FSL report (Ex.P/22) of that article wherein
it is mentioned that blood stains were found in appellant’s nail sample.

18. Learned counsel of the appellant submitted that shawl and
underwear has been seized from the open place which was ordinarily
visible to others. Therefore, it can not be said that the said objects were
only in the knowledge of the accused. Even otherwise from the
statement of Sugantibai (PW/1) it is clear that L.R. Kohli, (PW/11) had
already seen that article on 19/01/05 at the time of preparing spot map
(ExP/16). So Discovery of that article on the information of accused
has no meaning and it is also not proved that seized shawl belonged to
appellant. So on the basis of seizure, no adverse inference can be drawn
against appellant. Likewise, there is no evidence on record that the
blood found on the nails of appellant was human blood and that its
blood group matched with the blood group of “Deceased A”. So on that
basis also no adverse inference can be drawn against appellant.

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19. But his arguments has no force. Although, Sugantibai
(PW/1) deposed that around 6-7 am on 19/01/05 she found dead body
of her daughter “Deceased A” lying in front of Maida Mill and the
shawl of appellant slippers and underwear of “Deceased A” lying
twenty feet away from the dead body, which shows that Sugantibai
(PW/1) had already seen that articles on 19/01/05. L.R. Kohli (PW/11)
also deposed that on 19/01/05 Sugantibai again came to the Police
Station and informed that the dead body of her daughter was lying near
the road. On that he went on the spot i.e. one k.m. away towards East
from Badora square, where the dead body of the “Deceased A” was
lying in a field. He prepared spot map (Ex.P/16) and this witness
recovered shawl slippers and underwear from near the spot which
would have caught sight of this witnesses while making the spot map
because they were lying near the spot. So it can not be said that the
shawl, slippers and underwear were for the first time recovered from
the information of the appellant. But appellant did not challenge the
statement of Sugantibai (PW/1) on the point that seized shawl belonged
to him. So it is proved that appellant’s shawl was found near dead body
of “Deceased A”.

20. Likewise, from the FSL report it is not proved that the
blood found on the nails of appellant was human blood and that its
blood group matched with the blood group of “Deceased A”. But from
that report it is proved that blood was found in the nail of appellant on
19/01/05. Although the evidence of blood stains found in the nails of
appellant cannot be recorded as a conclusive piece of evidence. But it is
certainly a piece of evidence which goes to support the other evidence
about the guilt of accused. As held by the Hon’blie Apex Court in the
case of Namdeo Daulata Dhayagude and Ors. vs State Of
Maharashtra AIR 1977 SC 381. Dr. Basant Shrivastava (PW/4) also
stated that at the time of medical examination of accused no smegma
was present on his penis.

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21. So from the above discussion in the considered opinion of
this Court it is proved against appellant that :-

(i) Appellant was last seen with the “Deceased A” before her
death;

(ii) Appellants shawl was found near dead body of
“deceased A”.

(iii) At the time of examination of appellant on 19/01/05
no smegma was present on the glance of appellant’s
penis.

(iv) On 19/01/05 at the time of medical examination
excreta was also found on appellant’s trouser
underwear and blood stains on his nail.

22. Apex court in the case of State of Rajasthan v. Kashi
Ram, AIR 2007 SC 144 held that when the accused does not throw any
light upon facts which are specially within his knowledge and which
could not support any theory or hypothesis compatible with his
innocence, the Court can consider his failure to adduce any
explanation, as an additional link which completes the chain. Apex
court in the case of Sahadevan Alis sagadevan Vs State represented by
Inspector of Police, Chennai (2003) 1 SCC 534 also held that a person
who is last found in the company of another, if later found missing,
then the person with whom he was last found has to explain the
circumstances in which they parted company.

23. In the instant case also the prosecution established the fact
that “Deceased A” aged about six to seven years died due to asphyxia
and mode of her death was smothering, which shows that somebody
had killed her by covering her nose and mouth, so that she suffocates
and sexually assaulted her before her death. She was seen in the
company of the appellant on January 18, 2005 till at least 7 p.m. and
thereafter her dead body was found in the morning of January 19, 2005.
So it is the duty of appellant to give explanation regarding
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whereabouts of the deceased when he parted the company of deceased.
But appellant after his arrest did not offer any explanation and even
during trial only denied the allegations made against him without
offering any explanation for his absence from his house between 7:00
pm to 11:00 pm on the crucial day. In the post mortem multiple semi
lunar abrasion (nail mark) with blood clots were found on the face and
neck of the deceased and her hymen was also found ruptured in 5 mm
diameter. During medical examination of appellant on 19/01/05 blood
stains were found on his nail and no smegma was present on the glance
of his penis. Appellant’s shawl was found near dead body of “Deceased
A”. Appellant did not offer any explanation regarding these
circumstance also and even at the trial only denied the allegations made
against him without offering any explanation.

24. These incriminating circumstances collectively in our view
form a complete chain and are consistent with no other hypothesis
except the guilt of the accused/appellant. He did not give any
explanation regarding all of these circumstances which clearly proves
against appellant that he abducted the “Deceased A” and murdered her
and also tried to commit rape with her before murdering her. So we are
of the considered opinion that trial Court did not commit any mistake in
finding appellant guilty for the aforesaid offences.

25. As far as sentence is concerned, learned trial Court
convicted appellant for the offences punishable under Section 363, 366,
376(2) read with Section 511 and 302 of IPC. While the offence under
Section 366 of IPC is a graver form of offence punishable under
Section 363 of IPC. So in the light of Section 71 of IPC appellant
should only be convicted for the offence under section 366 of IPC
which is graver. So looking to the facts and circumstances of the case
the conviction of appellant for the offence punishable under Section
363 of IPC is set-aside. All other sentences shall remain the same.

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26. All jail sentence of appellant shall run concurrently. The
period of custody during trial shall be adjusted towards the period of
substantive sentences of imprisonment.

27. Accordingly, appeal is disposed off.

(H.P. Singh) (Rajeev Kumar Dubey)
JUDGE JUDGE
as/-