[REPORTABLE]
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 467/2010
Kishore Bhadke ……….Appellant
Vs.
State of Maharashtra ……..Respondent
WITH
Criminal Appeal No.854/2010 Criminal Appeal No.11/2015
J U D G M E N T
A.M.KHANWILKAR,J.
These appeals are filed by the original accused No.1
(Crl.A.No.854/2010), accused No.3 (Crl.A.No.467/2010) and accused No.6
(Crl.A.No.11/2015). They were tried for offence punishable under Sections
364, 302, 201 read with 34/120-B of Indian Penal Code (IPC) along with four
other accused.
2. The prosecution case is that, on 10th May 2003, Shriniwas son of
Wasudeorao Tonpe lodged a report (Exh.154) that his elder brother Raman has
gone missing since morning of 8th May 2003. On the basis of that report, a
missing Register entry was effected by the Police Station, Narkhed,
District Nagpur (Maharashtra). On the next day i.e. 11th May 2003 another
brother of the missing person, Madan son of Wasudeorao Tonpe lodged a
second report (Exh.68) suspecting that accused No.1- Nalini, her husband
Vijay Dhpake, accused No.2-Rinku, and accused No.7- Suresh Chandra might
have abducted his brother Raman in order to commit his murder. On the basis
of this report, Police Station registered an offence punishable under
Section 364 read with Section 34 of IPC against the named persons. Police
Inspector R.B.Bansod (PW-17) was entrusted with the investigation of the
case. On the same day, he called accused No.1-Nalini and Accused No.2-
Rinku to the Police Station for interrogation. As nothing came out of that
interrogation, the said accused persons were allowed to go back. However,
on the same evening, he arrested both Nalini and Rinku and thereafter
accused No.3 – Kishor, accused No.4 – Tarachand in the mid night of 12th
May 2003. It is stated that accused No.2- Rinku and accused No.3- Kishor,
during interrogation confessed that on 8th May 2003 between 1.00 p.m.to
1.30 p.m. they along with accused No.4-Tarachand and accused No.6-Satish
with the help of accused No.1-Nalini and accused No.5-Arun had committed
murder of Raman by strangulation in the cattle shed of one Nitin Rai. The
dead body of Raman was thereafter taken away in a gunny bag and then thrown
in a valley near “Deona Darshan Point”. Before throwing the dead body, they
had removed the clothes and wrist watch from the dead body. They then burnt
the gunny bag as well as the rope used for strangulation including some
documents possessed by the deceased by pouring petrol at some other place
at a distance of 10 km. before Deona Darshan Point. They also agreed to
show the spot where the gunny bag, clothes and documents were burnt and the
place where the dead body was disposed. Pursuant to the said revelation,
the police party along with accused No.2-Rinku and accused No.3-Kishor
proceeded to the locations disclosed by the said accused. Firstly, they
showed the place of burning the articles from where the remains in the form
of ash and a bunch of keys was seized. Thereafter, they proceeded to the
other location where the dead body was found lying in the valley near Deona
Darshan Point. The Investigating Officer R.B.Bansod completed the necessary
formalities of preparing memorandum of statements of the said accused,
Panchnamas, seizure panchnamas/memos, Inquest panchnama etc. of the dead
body. The dead body and the recovered articles were then brought to
Narkhed. The dead body was identified by the complainant Madan Tonpe (PW-1)
at the spot i.e. Deona Darshan Point itself. The dead body was then sent to
Primary Health Centre, Narkhed for post mortem examination. After the post
mortem was conducted on the dead body, it was handed over to the family
members/relatives for funeral. The mother of the deceased, Smt. Shantabai
(PW 15) also identified the dead body of her son when it was brought to
their house. The offence was then converted and registered under Section
364, 302 and 201 read with Section 34/120-B of the IPC. Thereafter
remaining accused i.e. accused No.5- Arun, accused No.6-Satish and accused
No.7-Suresh Chandra were arrested.
3. The Investigating Officer R.B.Bansod carried out further
investigation. He recorded statements of the witnesses, seized the
vehicle/Tata Sumo used in the commission of offence for transporting the
dead body, recovered the wrist watch and gold ring at the instance of
accused No.3 – Kishor and accused No.6 – Satish respectively. He prepared
a panchnama of the place of incident in the cattle shed of Nitin Rai,
seized clothes of accused No.2 – Rinku, accused No.3-Kishore and accused
No.6-Satish and of deceased Raman. He then verified the bunch of keys
recovered from the spot disclosed by the accused by applying it on the
cupboard in the house of deceased Raman. He also arranged for
identification parade of the wrist watch and gold ring. He seized some
currency at the instance of accused No.6-Satish. The muddemal/property,
seized articles, viscera etc. was then sent to the Chemical Analyser for
analysis. After the investigation was completed, police report was filed in
the Court of J.M.F.C., Narkhed, who committed the case for trial of the
accused before the Sessions Court at Nagpur. The trial proceeded before the
3rd Addl. Sessions Judge, Nagpur, who framed charges for offence punishable
under Section 364, 302, 201 read with Section 34 in the alternative 120-B
of IPC. All the accused pleaded not guilty and to have been falsely
implicated. They claimed to be tried.
4. The prosecution examined in all 18 witnesses. On considering the oral
and documentary evidence adduced by the prosecution, the Trial Court held
that the accused persons conspired to kill Raman. In furtherance of that
conspiracy on 8th May 2003, Raman was abducted by the accused persons and
on the same day in the noon he was killed in the cattle shed of Nitin Rai.
Thereafter with a view to dispose of the dead body of Raman and to destroy
the evidence of murder, they carried the dead body of Raman and threw it in
the valley near Pachmadi (in the State of Madhya Pradesh) at the spot later
on disclosed to the Police by the concerned accused. Similarly, the
articles such as gunny bag used for carrying the dead body and rope used
for strangulation, clothes worn by deceased Raman at the relevant time as
also the documents in his possession were burnt at a different spot which
was disclosed to the Police by the concerned accused. The Trial Court held
that the death of Raman was homicidal death. Accordingly, the Trial Court
convicted the accused for their involvement in the concerned offence. The
operative part of the Trial Court judgment reads thus:
“1. Accused No. 1 Nalini W/o Vijay Dhapke is hereby convicted vide section
235 (2) Cr.P. Code for the offence punishable under Section 302 read with
120-B of I.P.Code to undergo rigorous imprisonment for life and to pay a
fine of Rs. 2,000/- (Rupees two thousand only) in default of payment of
fine amount to suffer further rigorous imprisonment for four months.
Accused No.2 Rinku alias Anand S/o Suresh Chandra Roy is hereby convicted
vide section 235(2) of Cr.P. Code for the offence punishable under section
302 read with 120-B of I.P.Code to undergo rigorous imprisonment for life
and to pay a fine of Rs. 2,000/- (Rupees two thousand only) in default of
payment of fine amount to suffer further rigorous imprisonment for four
months.
Accused no. 3 Kishor is hereby convicted vide Section 235(2) of Cr.P. Code
for the offence punishable under Section 302 read with 120-B of LP. Code to
undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-
(Rupees two thousand only) in default of payment of fine amount to suffer
further rigorous imprisonment for four months.
Accused No.4 Tarachand is hereby convicted vide Section 235(2) of Cr.P.
Code for the offence punishable under Section 302 read with 120-B of
IP.Code to undergo rigorous imprisonment for life and to pay a fine of Rs.
2,000/- (Rupees two thousand only) in default of payment of fine amount to
suffer further rigorous imprisonment for four months.
Accused No. 6 Satish is hereby convicted vide Section 235(2) of Cr.P.Code
for the offence punishable under Section 302 read with 120-B of I.P.Code to
undergo rigorous imprisonment for life and to pay a fine of Rs. 2,000/-
(Rupees two thousand only) in default of payment of fine amount to suffer
further rigorous imprisonment for four months.
Accused Nos. 1 to 4 and 6 namely Nalini, Rinku, Kishor, Tarachand and
Satish are hereby convicted vide Section 235(2) of Cr.P.Code for the
offence punishable under Section 364 read with 120-B of IP.Code to undergo
rigorous imprisonment for three years and to pay a fine of Rs. 2,000/-
(Rupees two thousand only) each in default of payment of fine amount to
suffer further rigorous imprisonment for two months.
Accused Nos. 1 to 4 and 6 namely Nalini, Rinku, Kishor, Tarachand and
Satish are hereby convicted vide Section 235(2) of Cr.P.Code for the
offence punishable under rigorous imprisonment for two years and to pay a
fine of Rs. 1,000/- (Rupees one thousand only) each in default of payment
of fine amount to suffer further rigorous imprisonment for two months.
The above sentence of Accused Nos. 1 to 4 and 6 namely Nalini, Rinku,
Kishor, Tarachand and Satish shall run concurrently
Accused No. 7 Suresh Chandra Roy is hereby convicted vide Section 235(2) of
Cr.P.Code for the offence punishable under Section 201 of I.P.Code to
undergo rigorous imprisonment for two years and to pay a fine of Rs. 1,000/-
(Rupees one thousand only) in default of payment of fine amount to suffer
simple imprisonment for two months.
Accused No. 7 Suresh Chandra Roy is directed to surrender his bail bond
forthwith.
Accused No. 7 Suresh Chandra Roy is acquitted vide Section 235 of Cr.P.Code
for the offence punishable under Section 302, 364, read with 120-B of LP.
Code.
Accused No. 5 Arun Nasre is acquitted under Section 235 of Cr.P.Code for
the offence punishable under sections 302, 364, 201 read with 120-B of
I.P.Code and his bail bonds shall stand cancelled.
The period of undergone period by the accused by set off against the above
sentence of imprisonment under Section 428 of Cr.P.Code.
The valuable muddemal property namely wrist watch, golden ring and cash
amount of Rs. 4,600/- (Rupees four thousand six hundred only) be returned
to the complainant Madan S.o Wasudeo Tonpe R/0 Narkhed after the appeal
period is over.
The remaining muddemal property being worthless be destroyed after the
appeal period is over.”
5. Aggrieved by the aforementioned decision, accused Nos.1 to 4, 6 and 7
filed separate appeals before the High Court being Criminal Appeal Nos.367,
435, 444 and 452 all of 2005. The High Court dismissed Appeal Nos.367, 435
and 444 of 2005 filed by the concerned accused (Nos.2, 6, and 7; 1; and 3
respectively); and allowed Appeal No.452 of 2005 filed by accused No.4, by
a common judgment dated 15th September 2008. After re-appreciating the
entire evidence adduced by the Prosecution, the High Court in paragraph 44
of the impugned judgment summed up the circumstances which led to the
finding of guilt against the concerned accused. The same reads thus:
“44. It was submitted by the learned counsel for the appellants that the
motive is not established and everything is in the air. We are, however,
satisfied that the prosecution has proved that Raman wanted to purchase the
land of A-1 Nalini and her husband Vijay; that he entered into transaction
of purchasing the land from them; that two agreements of sale were executed
by Nalini and her husband on consideration paid by Raman to them; that on
8.5.2003 A-1 Nalini called Raman to her house by giving him a ring; that
accordingly Raman went to her house after withdrawing Rs. 58,000/- from the
Bank of Maharashtra, Branch Narkhed; that at that time A-3 Kishore Bhadke,
A-4 Tarachand Vaidya and A-6 Satish Bansod were also at the house of A-1
Nalini; that thereafter Raman was not seen alive; that Tata Sumo of Avinash
Kalbande was engaged by A-2 Rinku Roy for taking goods from the cattle shed
of Nitin Rai to Parasiya; that Sanjay Kalkar was the driver of the said
vehicle; that gunny bags were loaded in Tata Sumo in the cattle shed of
Nitin Roy; that A-3 Kishore Bhadke, A-6 Satish Bansod and A-7 Suresh Roy
travelled by the said Sumo from Narkhed to Parasiya; that A-2 Rinku Roy
followed Tata Sumo on motorcycle; that in the midnight the gunny bags were
unloaded from Tata Sumo at the house of A-7 Suresh Roy; that on the next
day morning Sanjay Kalkar brought Tata Sumo to the house of owner thereof;
that on 10.5.2003 Sanjay Kalkar again came to take back Tata Sumo and
thereafter he never turned up.”
After analyzing the other circumstances and contentions, the High Court
concluded that the finding reached by the Trial Court that the dead body
discovered from the valley near Deona Darshan Point was that of deceased
Raman and that he met with homicidal death, was unassailable. The High
Court also considered the circumstance of discovery of wrist watch at the
instance of accused No.3, gold ring of Raman and cash of Rs.4800/- (48
notes of 100 denomination) seized from accused No.6; including the blood
stained earth seized from cattle shed of Nitin Rai on 16th May 2003 under
seizure memo (Exh.92) which as per the report of Chemical Analyser
(Exh.151) showed human blood. Human blood was also found on the pant of
Accused No.2 Rinku, which circumstance remained unexplained. Similarly,
full pant and shirt of accused No.3 Kishor which were seized on 15th May
2003 from his house and on analysis by the Chemical Analyser it showed
human blood, which also remained unexplained. After taking over all view of
the matter, the High Court concluded that the complete chain of
circumstances unequivocally point out towards the guilt of accused No.1-
Nalini, accused No.2 -Rinku, accused No.3- Kishore Bhadke, and accused No.6-
Satish Bansod, excluding any hypothesis consistent with their innocence.
Accordingly, they were convicted for offence punishable under Section
364/120-B, 302/120-B and 201/120-B of the IPC. The finding of guilt reached
against these accused by the Trial Court was once again reiterated by the
High Court.
6. As regards accused No.4-Tarachand, in paragraph 74 of the impugned
judgment, the High Court observed thus:
“74. On close scrutiny of the evidence we find that though there is
evidence to show that A-4 Tarachand Vaidya was at the house of A-1 Nalini
on 8.5.2003 when Raman came to her house and he was also seen loading gunny
bags in Tata Sumo, he did not travel by Tata Sumo from Narkhed to Parasiya
thereafter. From the evidence it seems that the role of A-4 Tarachand
Vaidya is only to the extent of loading gunny bags in Tata Sumo from the
cattle shed of Nitin Roy. There is no evidence to show that he was aware
of the murder of Raman. Immediately after loading gunny bags in Tata Sumo,
he left the place and did not travel by Tata Sumo from Narkhed onwards.
From these circumstances A-4 Tarachand Vaidya is entitled to get benefit of
doubt. Accordingly we extend benefit of doubt to him and acquit him.”
7. While dealing with the case of accused No.7- Suresh, the High Court
in paragraph 75 of the impugned judgment observed thus:
“75. The role of A-7 Suresh Roy is only to the extent of helping the other
accused persons in removing the dead body of Raman from Narkhed to Parasiya
and thereafter causing disappearance of the dead body and other evidence of
the offence. As such his conviction for the offence punishable under
Section 201/120-B of IPC needs to be maintained.”
8. The High Court finally disposed of the appeals in the following
terms:
“(i) Appeal Nos. 367 of 2005, 435 of 2005 and 444 of 2005 are dismissed.
Bail bonds of original accused No.7/Sureshchandra Jagannath Rai stand
cancelled. He is directed to surrender within four weeks to serve out the
sentence.
(ii) Appeal No. 452 of 2005 is allowed. The conviction of Tarachand s/o
Shalikram Vaidya for the offence punishable under Sections 364, 302 and 201
r/w 120-B of IPC is set aside and he is acquitted of the said charges. He
be released forthwith if not required in any other offence.”
9. Aggrieved by the aforementioned decision, accused Nos.1, 3 and 6 have
assailed the same by way of separate appeals before this Court. The
argument was led by Advocate R.R.Deshpande for accused No.3. He submitted
that the prosecution case hinges on circumstantial evidence. If the chain
of circumstances is not complete pointing towards the guilt of the accused,
it would be unsafe to uphold the finding of guilt though concurrent by two
courts below. He submits that the High Court has not analyzed the
circumstance about the nature of death of Raman as to whether it was
suicidal or homicidal death. He submits that circumstance held against
accused No.3 of recovery of blood stained clothes at his instance is
questionable. In that, the prosecution has failed to establish the blood
group much less that the blood stains pertained to the blood group of
deceased Raman. He submits that the evidence regarding factum of motive
produced by the prosecution is very weak. In any case, motive is
attributed to Nalini (A1) with which accused No.3 has no concern.
Therefore, that circumstance cannot be used against him. He has also taken
us through the evidence of prosecution witnesses who have spoken about the
presence of accused at the scene of offence, relied by the prosecution to
substantiate the circumstance of last seen together. He submitted that the
evidence of PW-11 and PW-12 is not reliable. Their statements were recorded
after a long gap and the reason for such delay has not been explained.
Further, the prosecution witness (PW 12) examined in support of this
circumstance is a chance witness. He was residing in another village. The
prosecution theory about homicidal death is doubtful. Even the evidence
regarding the manner in which the body of deceased Raman was thrown is
doubtful. For, no lacerated injury was found by the Doctor while conducting
post mortem. Only four injuries have been noted which belies the
prosecution theory that the body was thrown in the valley from the height
of around 600 ft. He submits that the factual position mentioned in the
memorandum of disclosure recorded under Section 27 of the Evidence Act,
relied by the prosecution qua accused No.3, is inadmissible and cannot be
taken into account. In absence thereof, there is no legal evidence about
discovery of dead body of deceased or articles belonging to the deceased
ascribable to accused No.3. Thus, that circumstance cannot be used against
him. He submits that the said evidence is inadmissible also because no
signature of accused is taken on the recovery panchnama. He then submits
that the statement of accused No.3 recorded under Section 313, Cr.P.C., the
whole of it is vitiated because it is a joint statement of all the accused
recorded by the Trial Court. In support of this contention, he invited our
attention to the said statement recorded under Section 313, Cr.P.C.
Lastly, he submits that benefit be given to accused No.3 on the same
reasoning as given to accused No.7. Learned counsel has placed reliance on
the decisions of this Court in the cases of Jackaran Singh vs. State of
Punjab[1]; A.R. Khima vs. State of Saurashtra[2]; and Sunil Clifford Daniel
vs. State of Punjab[3].
10. The accused No.1 is represented by Advocate Mr. Gagan Sanghi. His
argument essentially revolved around the two circumstances held against
accused No.1. Firstly, of motive and secondly last seen together. He
submits that no recovery has been made at the instance of accused No.1 nor
it is the case of prosecution that accused No.1 was seen along with other
accused travelling in Tata Sumo vehicle wherein the dead body of deceased
Raman was carried away. As regards motive, he submits that the prosecution
theory about the illicit relations between accused No.1 Nalini and accused
No.2 Rinku has been discarded by both the courts below. The Trial Court as
well as the High Court has, however, accepted the prosecution case that
there was some transaction about land between accused No.1 Nalini and
deceased Raman over which the matter got escalated causing death of Raman.
The evidence in this behalf produced by the prosecution, however, is very
weak. PW-1 in his cross-examination says that he had disclosed about the
said fact to PW-17 (I.O.) i.e. about the agreement executed between the
parties. But PW-1 was not aware as to why that fact is not mentioned in his
statement recorded by the police. Further, PW-17(I.O.) in the cross-
examination has denied of any such statement given by PW-1. PW-17 (I.O.)
admitted in his cross-examination that he had not investigated the matter
with regard to the land transaction. Moreover, PW-1 in his cross-
examination admits that he does not know who and in whose name the stamp
papers were purchased and how payments were made. The other witness, who
has spoken about the land transaction is PW-15, mother of deceased Raman.
She has spoken about the phone call received on 8th May 2003 from Nalini.
She wanted to talk to Raman. Raman attended the phone call and thereafter
disclosed to PW15 that Nalini (accused No.1) had called him to her house
and he will go along with documents in respect of agricultural land to get
her signature. She has stated that deceased Raman left the house at about
11.30 a.m. According to the learned counsel, evidence of PW-15 cannot be
taken into account as neither the documents regarding transaction have
been produced by the prosecution nor the documentary evidence regarding the
fact that phone call was received by PW-15 has been produced. As regards
the factum of last seen together, it is submitted that the evidence of PW-
11 is unreliable and is replete with material omissions and contradictions.
Similarly, the evidence of PW-12 is also unreliable. As a result, the
prosecution has failed to substantiate the crucial circumstance of last
seen together with accused No.1. This being a crucial link and as no
satisfactory evidence is forthcoming to indicate the complicity of accused
No.1, the finding of guilt qua accused No.1 would be unsafe. Further, being
a case of circumstantial evidence, the Court must analyze the evidence with
utmost circumspection and even if one crucial link is missing, benefit must
go to the accused. He has placed reliance on Nizam and another vs. State of
Rajasthan[4]. On the issue of motive he has placed reliance on Saju vs.
State of Kerala[5] to contend that motive by itself cannot be a proof of
conspiracy. Reliance is also placed on Keshav vs. State of Maharashtra[6]
to contend that conviction cannot be based solely on the basis of motive;
and the circumstance of last seen together becomes relevant only when the
death is proved to have taken place within a short time of the accused
being last seen. Reliance is then placed on Arjun Marik and others vs.
State of Bihar[7] to buttress the argument that the factum of motive
assumes importance in a case of circumstantial evidence, if it is
established from the evidence on record that the accused had a strong
motive and also an opportunity to commit the crime; and that the
established circumstances along with the explanation of the accused, if
any, exclude the reasonable possibility of anyone else being the
perpetrator of the crime then the chain of evidence may be considered to
show that within all human probability the crime must have been committed
by the accused. Thus, the only circumstance of last seen together will not
be enough to complete the chain of circumstances to record a finding of
guilt against accused No.1. He has also placed reliance on the other
decisions, more or less dealing with similar aspect, in the case of Mohibur
Rahman Anr. vs. State of Assam[8]; Niranjan Panja vs. State of W.B.[9];
Sk.Yusuf vs. State of W.B.[10]; Shyamal Ghosh vs. State of W.B.[11];
Kanhaiya Lal vs. State of Rajasthan[12]; Malleshappa vs. State of
Karnataka[13]; Ashok vs. State of Maharashtra[14]; Nizam vs. State of
Rajasthan[15]; Mousam Singha Roy Ors. vs. State of W.B.[16] and Sangili
vs. State of Tamil Nadu[17] Reliance is also placed on the decision in the
case of Lohit Kaushal vs. State of Haryana[18] about the efficacy of
statement of a co-accused under Section 27 of the Evidence Act.
11. Ms. Anagha S.Desai, Advocate appeared for accused No.6. She contends
that that the dead body was recovered at the instance of accused Nos.2 and
3. The recovery of gold ring at the instance of accused No.6 is doubtful.
The prosecution has not established the special identity of gold ring and
it has come on record that such gold rings are freely available in the open
market. Further, no blood stains or any incriminatory evidence was noticed
on the gold ring. The accused No.6 was arrested on 13th May 2003 on which
day his statement was also recorded. The recovery of gold ring, however, is
on 18th May 2003, while the accused No.6 was in police custody. Similarly,
the cash amount recovered at the instance of accused No.6 was of no avail
to the prosecution. It was a paltry amount as compared to the amount
withdrawn by Raman on 8th May 2003 from the Bank. Further, there is no
evidence that the currency recovered from accused No.6 was the same as
withdrawn by the deceased Raman from the Bank. No blood stains were found
on the clothes recovered at the instance of accused No.6. In the confession
statement of accused No.2, there is no mention of gold ring. The signature
of accused No.6 was obtained on a blank paper and it was then used as a
memorandum under Section 27 of the Evidence Act. Recovery of clothes as
well as gold ring attributed to the accused No.6 was doubtful. Reliance is
placed by the counsel on Gulab Singh vs. State of U.P.[19] to contend that
recovery of ring of deceased from the accused No.6 after such long gap and
even if accused No.6 failed to offer valid explanation for possession of
the gold ring, is at best liable to be convicted under Section 411 of IPC
and not for the offence of murder. She submits that the accused No.6 should
be given the same benefit as given to accused No.7, if not an acquittal as
in the case of accused Nos.4 and 5.
12. Per contra, Mr. N.R. Katneshwarkar, Advocate appearing for the State
supported the findings and conclusions reached by the two courts below. He
submits that the argument of the appellants is essentially on the basis of
some minor discrepancies in the evidence and not because of material
omissions amounting to contradictions or contradictory evidence of the
prosecution. Two courts below have had the opportunity to analyze the
evidence threadbare; and the view taken by the High Court being a possible
view, does not merit any interference. He submits that there is clinching
evidence to indicate the complicity of accused Nos.1, 3 and 6, who are the
appellants before this Court. No fault can be found with the courts below
for having convicted them for the stated offence. He took us through the
evidence of the concerned witnesses and pointed out the findings of the two
courts below which have analyzed the said evidence exhaustively and
analytically. Regarding the factum of land transaction, the evidence of PW1
was unassailable. He submits that the prosecution has successfully
substantiated the circumstance of motive of accused No.1. The fact that no
discovery is made at the instance of accused No.1 would be of no avail to
the said accused. She was the master mind of the conspiracy to murder
Raman. There was dispute between accused No.1 and deceased Raman in respect
of land transaction and non-payment of the agreement amount. The
prosecution evidence has established that Nalini had made a telephone call
to deceased Raman on 8th May 2003. PW-15 has also spoken about the fact
disclosed to her by Raman before leaving the house at around 11.30 a.m. The
prosecution was also able to substantiate the fact that Raman after leaving
the house in the presence of PW-15, proceeded towards the Bank and withdrew
an amount of Rs.58,000/-. He went to the house of Nalini where he was last
seen. The dead body of Raman was put in a gunny bag and transported by Tata
Sumo vehicle. It was then disposed at a spot disclosed by the accused Nos.2
and 3. He submits that prosecution has succeeded in establishing motive and
last seen together which is good enough to affirm the finding of guilt
against accused No.1 Nalini. As regards accused No.6, he submits that the
recovery of ring which belonged to deceased Raman has been established by
the prosecution. Besides that, accused No.6 was not only last seen together
with the deceased in the house of Nalini but also while taking away the
dead body of deceased Raman in Tata Sumo vehicle. His involvement cannot be
equated with the role of accused Nos. 4, 5 and 7, which has been found to
be materially different by the Courts below. While refuting the argument of
accused No.3, he submits that the prosecution has been able to establish
that the death was homicidal death and was caused due to strangulation by a
rope. The prosecution has also established the presence of accused No.3 at
the relevant time. He was not only last seen together in the house of
Nalini accused No.1 at the relevant time but also in the Tata Sumo vehicle
in which the dead body of Raman was transported. Moreover, the location
where the dead body and articles of Raman were disposed has been disclosed
even by accused No.3. Reliance is placed on the decision of this Court in
the case of Sunil Clifford Daniel (supra) to contend that absence of
signature of the accused on the memorandum of recovery would make no
difference. The statement of the accused No.3 recorded under Section 27 of
the Evidence has been signed by the accused. A separate statement of
accused No.3 was recorded before the police proceeded to the location which
was jointly disclosed by accused Nos. 2 and 3. Learned counsel submits that
all the appeals deserve to be dismissed and the finding of guilt and
sentence awarded to the concerned accused be affirmed.
13. We have heard the learned counsel for the parties at length. We were
ably assisted by the learned counsel for the respective parties who took us
through the relevant depositions and documents and the analysis done by the
Trial Court and the High Court in that behalf. We must appreciate the
exhaustive judgment delivered by the Trial Court, meticulously dealing with
every aspect of the evidence on record. We find that the High Court has
also analyzed the relevant piece of evidence on its own besides adverting
to the findings rendered by the Trial Court in that regard. In other words,
we have to deal with concurrent findings of fact on most of the relevant
aspects concerning the matters in issue. Our analysis, therefore, must
focus on the legal aspects emanating from the concurrent findings so
recorded and not to re-appreciate the entire evidence.
14. In this backdrop, we may first advert to the main question as to
whether the circumstance of motive and last seen together, as answered by
the two courts below, is just and proper. As regards the circumstance of
motive, prosecution has mainly relied on the evidence of PW-1 and PW-15.
The criticism is that no documentary evidence to buttress the factum of
land transaction between deceased Raman and Nalini (accused No.1) and about
the telephone call made by Nalini to Raman in the morning on 8th May 2003,
as stated by the said witnesses have been brought on record or any attempt
made by the Investigating Officer to recover the same. The courts below
have found that absence of documentary evidence in the form of agreement of
land transaction or a civil suit between the parties, that cannot be the
basis to outright discard the statements given by the witnesses to the
Investigating Officer and more particularly the evidence before the court.
They have spoken about the dispute regarding taking of possession of the
land. Further, the accused No.1 in her statement under Section 313, Cr.P.C.
has stated that the members of Tonpe family wanted her land and they
cheated her and that Raman Tonpe and his brother Madan Tonpe (PW-1) caused
heavy loss to her agricultural land and also defamed her. The courts below,
therefore, held that absence of documents regarding such transaction was
not fatal. The evidence on record was enough to accept the theory of demand
for compliance of the transaction from the side of Tonpe family, as the
cause of motive. The courts have also noted from the evidence that there
was some dispute in respect of hotel premises for which Vijay Dhpake
(husband of accused No.1-Nalini), had lodged a report against accused No.2.
That dispute was settled by deceased Raman. The Courts below have found
that the prosecution proved the following circumstances. That deceased
Raman was the Director of Rashtra Mata Indira Gandhi Kanya
Vidyalaya,Narkhed. The land of accused No.1 Nalini and her husband Vijay
Dhpake was adjacent to the said school. Since Raman was looking after the
family affairs of Tonpe, he had entered into an agreement with accused No.1
Nalini and her husband Vijay for purchase of their land. Accused No.1 and
her husband executed an agreement in favour of Madan and her elder brother
Pramod by accepting Rs.25,000/-. Another agreement of sale was executed in
favour of Pramod by accepting Rs.1,33,000/-. The possession of the land was
also delivered to Tonpe family. Besides the said amount, deceased Raman had
paid Rs.50,000/- and Rs.30,000/- to Nalini towards the transaction for
which receipts were executed on separate stamp paper. This had happened one
year before the incident in question. The High Court in paragraph 26 has
dealt with the argument under consideration and observed thus:
“26. It is true that neither the alleged agreements of sale no receipts for
payment made after the agreements have been produced by the prosecution.
However, we cannot overlook the evidence to the effect that when on the
date of incident deceased Raman had left his house, he had carried the
documents about those transactions with him. Neither those documents nor
the cash amount which was carried by deceased Raman was recovered perhaps
because all the belongings of deceased Taman were burnt before his dead
body was thrown in the valley. As agreements of sale might not have been
registered and as such no certified copies thereof could be obtained by the
prosecution in order to support its case. Even otherwise this is not a
civil proceeding in which transactions of sale are to be proved by
production of documents. We can rely on oral testimony of PW1 Madan for
this purpose. Hence we find that the sale transactions between A-1 Nalini
and Raman have been proved by the prosecution.”
Also in para 31 the High Court observed thus:
“31. It was urged by the learned counsel for the appellants that the
investigating officer has not verified the record from the Telephone
Exchange about the call received at the residence of deceased Raman on
8.5.2003. In the absence of corroboration by the record of Telephone
Exchange, the testimony of PW Shantabai should not be accepted. We are
unable to agree with this submission. We see no reason to disbelieve the
testimony of PW Shantabai. This would show that the documents about
transaction of purchase of land were taken by deceased Raman with him and
as those documents must have been burnt. So there is no question of
production of those documents in order to prove the transaction between A-1
Nalini and deceased Raman.”
15. The question is whether the approach of the High Court regarding the
argument under consideration is correct. We may hasten to add that Criminal
Court trying the offence of murder was not required to decide about the
issue of title of the land or to consider the relief of specific
performance. The evidence given by PW-1 and corroborated by PW-15, revealed
that there was transaction in respect of land between the accused No.1 and
Tonpe’s. That version could not be demolished in the cross-examination.
Another piece of evidence relied by the prosecution is about the
destruction of clothes and articles of deceased Raman. The Police could
only recover ash from the spot along with bunch of keys. That lends support
to the prosecution case that the possibility of documents having been
destroyed also cannot be ruled out. Hence, it was open to the Trial Court
as well as the High Court to rely on the evidence of witnesses for the
limited purpose. The fact that deceased Raman while leaving his house had
carried some papers/documents with him has been stated by PW-15, when he
went to meet accused No.1 Nalini. The counsel for the appellants and in
particular accused No.1 had drawn our attention to cross-examination of PW-
15. He has also drawn our attention to cross-examination of PW-1 to contend
that the factum of land transaction between Tonpe and Nalini was not
disclosed in the statement recorded by the Police under Section 161 of the
Code. On close examination of the said cross-examination, we found that the
question posed to the witness was limited to the initial statement and not
to the supplementary statement recorded by the Investigating Officer. A
supplementary statement of the witnesses was given to the Investigating
Officer, which mentioned the fact of land transaction, as was deposed by
the witness in the examination-in-chief. In other words, it was half
hearted cross-examination by the accused. No question was posed in respect
of the contents of the supplementary statement which was also part of the
charge-sheet and crucial to the relevant fact. The answer given by
Investigating Officer PW-17 therefore will have to be understood in the
same context. Confronted with this situation, the argument of the
appellants is that no documentary evidence regarding the transaction is
forthcoming. For the reasons already mentioned, there is no tangible reason
to discard the relevant fact established by the prosecution witnesses in
support of the circumstance of motive.
16. The prosecution has also established the vital circumstance of last
seen together. That evidence is given by PW-11 and PW-12 in particular.
Their evidence will have to be juxtaposed with the evidence of PW-15, who
has spoken about the telephone call received from Nalini and pursuant to
which Raman left his house in her presence with relevant documents/papers.
The courts below have accepted her version as truthful and reliable. That
evidence cannot be discarded on the basis of some minor discrepancies
pointed out during the course of argument. The finding recorded by the two
courts below with regard to PW-15 about the truthfulness of her version is
unexceptional. The evidence of PW-11 corroborates the fact that deceased
Raman had gone to the Bank for withdrawing cash amount and then proceeded
to the house of Nalini accused No.1. He has deposed that Raman went inside
the house of Nalini and saw accused Nos.2, 3, 4 and 6 standing near the
cattle shed of Nitin Rai. While returning back he saw accused No.5 standing
near the water tank.
17. The fact of deceased Raman had gone to the Bank for withdrawing the
amount has been corroborated by PW-8 who was Cashier in the Bank at the
relevant time. Even the evidence of PW-8 has been found to be truthful and
reliable. In other words, there is credible evidence on record that Raman
started from his house in the presence of PW-15 as stated by her. He then
proceeded to the Bank for withdrawing amount of Rs.58,000/-, which
obviously was to be paid to accused No.1 Nalini. From the Bank he straight
proceeded to the house of Nalini. That fact stated by PW-11 stands
corroborated from the evidence of PW-12, who has deposed that he had gone
to Nalini’s house to finalise the deal concerning her agricultural land for
cultivation on yearly rent basis. He met her in her house at about 11.30
a.m. to 12.00 noon and found that Raman was sitting in the verandah of the
house with her. He had also seen accused Nos.2, 3, and 6 in the same room.
The counsel for the appellants no doubt made an attempt to discredit this
witness on the basis of some discrepancies in his evidence such as the
place where his statement was recorded by the Police – whether in his house
or in the Police Station and that he knew Raman for the last 10 years and
was therefore an interested witness. Further, the fact stated by him that
Raman was sitting in Varandah and talking to Nalini and when he saw other
accused were present has not been disclosed to the Investigating Officer
and unable to assign any reason as to why he had not disclosed that fact.
The evidence of this witness has been analyzed by the Trial Court as well
as by the High Court. This witness has been found to be independent and
truthful. He has deposed about the relevant facts which have been
corroborated by the version of PW-11 about the concerned accused persons
last seen together. No other witnesses has come forward to depose that
after the meeting of deceased Raman with Nalini, Raman was seen elsewhere
at a later point of time. Thus, there is sufficient evidence about the
factum of last seen together. This circumstance is further strengthened by
the evidence given by other prosecution witnesses (PW 9, 6 and 12), who had
seen the concerned accused persons loading a gunny bag in Sumo vehicle
after some time; and that accused Nos. 3 and 6 were also seen in the
vehicle carrying that gunny bag. The gunny bag, as found by the two courts
below was used to carry the dead body of deceased Raman which was
transported in a vehicle and then thrown at an isolated location in the
valley. There is no tangible reason to doubt the correctness of the
concurrent finding recorded by the two courts below in this behalf. The
Courts below have undertaken detailed analysis of the evidence of the
concerned prosecution witnesses. Thus, the prosecution has succeeded in
establishing the circumstance of motive and last seen together indicating
the involvement of the appellants – accused Nos.1, 3 and 6 in particular.
18. It was then argued that the High Court has failed to analyse the fact
as to whether death of Raman was suicidal or homicidal. From the judgment
of the Trial Court, we find that every aspect on this issue has been
considered threadbare from para 16 to para 25, to conclude that the death
of deceased Raman was homicidal death. The Trial Court has examined the
evidence of Dr.R.N.Gakare (PW-16), letter of requisition (Exh.127) and the
post mortem report (Exh.129). The Doctor has explained the circumstances in
which he could notice the injuries on the dead body. He has categorically
deposed that although the dead body was decomposed because of passage of
time but identity of the person could be discerned. The Doctor himself
identified deceased Raman as he was known to him. The other prosecution
witnesses PW-1 and PW-15 have also identified the dead body of Raman. The
Doctor has also explained the fracture injury noticed on the dead body,
which, in his opinion, was due to strangulation and asphyxia. Thus, we find
no merit in the contention that the nature of injury noted in the post
mortem report would rule out the possibility of homicidal death. The dead
body has been discovered at the instance of accused Nos.2 and 3 from the
spot in a valley about 600 ft. deep. The Police reached that spot on the
basis of the disclosure made by the said accused Nos. 2 and 3 under Section
27 of the Evidence Act. The Police party along with other witnesses had
proceeded to the spot disclosed by accused Nos.2 and 3 and recovered the
dead body of Raman from the valley.
19. It was contended by the counsel for the accused No.3 that the
evidence regarding discovery of the dead body of Raman cannot be used
against accused No.3. Inasmuch as, when accused No.3 gave his statement
and recorded in the form of Memorandum under Section 27 of the Evidence
Act, the Police already knew about the spot where the dead body was thrown
as it was disclosed by accused No.2. It was contended that the statement
made by accused No.2 can be used only against accused No.2. This argument
has been negatived by the Trial Court after analyzing the decisions which
were brought to its notice, as can be discerned from para 46 to para 53 of
the judgment. The Trial Court found that in the present case the accused
Nos.2 and 3 made disclosure (about the spot where dead body of Raman was
thrown by them) one after another in quick succession and that their
statement came to be recorded separately. The only thing that had happened
was a joint discovery made at the instance of both the accused Nos.2 and 3,
on proceeding to the spot along with the police. Section 27 of the Evidence
Act is an exception to Section 25 of the Act. Section 25 mandates that no
confession to a Police Officer while in police custody shall be proved as
against a person accused of any offence. Section 27, however, provides that
any fact deposed to and discovered in consequence of information received
from a person accused of any offence, in the custody of a Police Officer,
so much of such information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, may be proved. The fact
where the dead body of deceased Raman was disposed, was disclosed by both
the accused Nos.2 and 3 to the Investigating Officer in the presence of SK
Idris (PW 2) one after another on 12th May 2003 at 3.05 hrs and 3.25 hrs.
respectively. The discovery was made only after accused Nos.2 and 3 were
taken together by the police to the spot in the neighbouring State (Madhya
Pradesh), where the recovery Panchnama was recorded bearing Exh.76A. In
other words, the disclosure of the relevant fact by accused No.3 to the
Investigating Officer preceeded the discovery of dead body from the
disclosed spot at the instance of both the accused Nos. 2 and 3. It was not
a case of recording of statement of accused No.3 after discovery nor a
joint statement of accused Nos.2 and 3, but disclosure made by them
separately in quick succession to the Investigating Officer, preceding the
discovery of the fact so stated. The fact disclosed by them, therefore, and
the discovery made at their instance, was admissible against both the
accused in terms of Section 27 of the Evidence Act.
20. In the case of State (NCT of Delhi) Vs. Navjot Sandhu,[20] this
Court has held that a joint disclosure or simultaneous disclosures, per se,
are not inadmissible under Section 27. A person accused need not
necessarily be a single person, but it could be a plurality of the accused.
The Court held that a joint or simultaneous disclosure is a myth, because
two or more accused persons would not have uttered informatory words in
chorus. When two persons in custody are interrogated separately and
simultaneously and both of them may furnish similar information leading to
the discovery of fact which was reduced into writing, such disclosure by
two or more persons in police custody do not go out of the purview of
Section 27 altogether. What is relevant is that information given by one
after the other without any break, almost simultaneously, as in the present
case and such information is followed up by pointing out the material
things by both of them then there is no good reason to eschew such evidence
from the regime of Section 27. Whether that information is credible is a
matter of evaluation of evidence. The Courts below have accepted the
prosecution version in this behalf, being credible. Suffice it to say that
the disclosure made by Accused No. 3 about the relevant fact, per se, is
not inadmissible.
21. Reliance was placed on A.R. Khima (supra) to contend that
incriminating articles alleged to have been recovered at this instance of
the accused is inadmissible in evidence, if the police already knew where
they were hidden. The dictum in the said decision is in the context of the
fact situation of that case. The Court found that the police already knew
where the articles were hidden. Further, the information was not derived
from the accused but from someone else, one of the other suspects. In that
case, the Sub-Inspector to whom the disclosure was made was not examined by
the prosecution. The Court also found that articles were not hidden but
kept in the manner which might be normally kept in any average household.
In the present case, as found by the Courts below, the disclosure was made
by the Accused Nos. 2 and 3 in quick succession. The police party along
with witnesses and both the accused thereafter proceeded to the isolated
spot (in a valley) disclosed by the said accused from where the dead body
of Raman was discovered. The concerned Police Officer as well as the
witnesses to the Memorandum of Statement recorded under Section 27 have
been examined by the prosecution and found to be reliable and trustworthy.
This reported decision, therefore, does not take the matter any further.
22. It was then argued that the recovery Panchnama (Exh.76A) did not
contain signature of the accused and for which reason the same was
inadmissible. Even this submission does not commend to us. In that, no
provision has been brought to our notice which mandates taking signature of
the accused on the recovery Panchnama. Admittedly, signature of accused was
taken on the statement recorded under Section 27 of the Evidence Act
(Exh.76 and 77 respectively). The statement of accused No.3 (Exh.77) bears
his signature. Therefore, even this argument does not take the matter any
further.
23. In the case of the Jackaran Singh (supra), the Court opined that the
disclosure statement given by the accused regarding conscious possession of
the weapon did not inspire confidence. One of the reason was that
disclosure statement did not bear the signature or the thumb impression of
the appellant. The Court found that even, the recovery memo of the
revolver and the cartridges did not bear either the signatures or the thumb
impression of the accused. In the present case, the disclosure statement
bears the signature of accused Nos. 2 and 3 respectively. The absence of
signatures on the recovery memo (Exhibit 76-A) would not make it
inadmissible and it has been rightly taken into account because of the
other evidence regarding its authenticity and genuineness. In the recent
decision in the case of Sunil Clifford Daniel (supra), in paras 37 to 40,
the issue stands answered against the appellants. Reliance was placed on
the dictum in paras 18 and 21 in the case of Lohit Kaushal (supra). In that
case, the Court found that the statement of accused who was discharged by
the Trial Court was hit by Section 25 and 26 of the Evidence Act. The same
was inadmissible in evidence. The Court, however, observed that statement
made to the Police can only be used for the limited purpose provided under
Section 27 of the Evidence Act and that too only against the person making
the statement. In that case, the statement made by the concerned accused
who was discharged did not lead to the recovery of any item whatsoever. In
the present case, however, the statement of accused No.2 and 3 has been
recorded separately and both the accused accompanied the Police and
disclosed the spot where the dead body of Raman was thrown. On the basis of
that disclosure, the dead body of Raman and the remains of the burnt
articles of Raman were recovered for which that fact becomes relevant fact
and can be used against the appellants (accused Nos.2 and 3). In other
words, this decision will be of no assistance to the said appellants.
24. It was then contended that the circumstance of blood stained clothes
recovered at the instance of accused No.3 was questionable because no
evidence regarding the blood group or the fact that the blood stains
belonged to the blood group of deceased Raman is forthcoming. Further, the
recovery itself was doubtful. Even this aspect has been considered by both
the courts below and negatived. The absence of evidence regarding blood
group cannot be fatal to the prosecution. The finding recorded by the
courts below about the presence of human blood on the clothes recovered at
the instance of accused No.3 has not been questioned. The Courts have also
found that no explanation was offered by the accused No.3 in respect of
presence of human blood on his clothes. Accordingly, we affirm the
concurrent finding recorded by the courts below in that behalf including
about the legality of such recovery at the instance of accused No.3.
25. It was then argued by the counsel for accused No.3 that even if
circumstance of motive is proved, that can be relevant only against accused
No.1. That cannot be used against accused No.3. This argument completely
overlooks the charge for which accused No.3 was tried, which included
charge of conspiracy under Section 120-B of IPC. As aforesaid, the
presence of accused No.3 at the relevant time in the house of Nalini and
also seen while loading the gunny bag in Sumo vehicle and also travelling
in that vehicle, leaves no manner of doubt about his complicity in the
commission of offence.
26. In the case of Saju (supra), on facts of that case it was held that
the circumstances of last seen together and motive were not conclusive to
indicate hatching of criminal conspiracy. The Court held that there was no
evidence regarding the circumstance attributing the pregnancy of the
deceased to the appellant and his insistence for abortion of the child. On
that finding, the circumstance of motive was answered against the
prosecution and in favour of the appellant. In that context the Court
observed that even otherwise motive by itself cannot be proof of
conspiracy. It is well established that, ordinarily, direct evidence
regarding conspiracy may not be forthcoming. Hence, in most of the cases,
the Courts have to infer conspiracy on the basis of established facts. In
the present case, on analyzing the facts and the events that unfold, the
Courts below have answered the factum of conspiracy against the appellants-
accused Nos. 1, 3 and 6. Further, the prosecution did not rest only on the
factum of last seen together but also on other circumstances to point out
the involvement of the appellants in the commission of crime. In the Case
of Arjun Mariks (supra), which deals with similar contention, the Court
restated the settled legal position that interference by the Supreme Court
with concurrent finding of fact is justified only when it is possible to
take the view that the findings are manifestly erroneous, unreasonable,
unjustified or illegal or violative of some Fundamental Rules of Procedure
or natural Justice. In the present case, concurrent finding recorded by
two Courts below after exhaustive analysis of the evidence, is that the
same unambiguously points out towards the involvement of the appellants in
the commission of crime. In the reported decision, this Court has also
observed that mere absence of proof of motive for commission of a crime
cannot be a ground to presume the innocence of an accused if the
involvement of the accused is otherwise established. But in the case of
circumstantial evidence motive, does assume some relevance. If it is
evident from the evidence on record that the accused had an opportunity to
commit the crime and the established circumstances along with explanation
of the accused, if any, exclude the reasonable possibility of anyone else
being the perpetrator of the crime then the chain of evidence may be
considered to show that within all human probability the crime must have
been committed by the accused. On the facts of the present case, we find
no tangible reason to disturb the concurrent findings recorded by the two
Courts below.
27. The case of Nizam (supra) was also based on circumstantial evidence.
In that case, the courts below placed emphasis on the last seen theory.
After analyzing the evidence on facts of that case, this Court held that
none of the circumstances relied upon by the prosecution and accepted by
courts below can be said be pointing only towards the guilt of appellants
and to no other inference. In that case, more than one inferences could be
drawn on the basis of evidence brought before the Court for which benefit
of doubt was given to the appellants. The Court noted several other
lapses in the investigation and missing links. And therefore, observed
that last seen together though an important link in the chain of
circumstances yet the court is required to take into account the entire
evidence in its entirety and ensure that only inference that could be drawn
from evidence, is guilt of the accused. In the present case, however, two
courts below have justly analysed the entire evidence and considered all
the circumstances and not limited to the circumstance of last seen
together. The concurrent finding recorded by the courts below is that the
only inference that can be drawn is pointing towards the guilt of the
concerned accused in particular accused Nos. 1,3 and 6.
28. Similarly, in the case of Kanhaiya Lal (supra), the Court observed
that last seen together circumstance does not by itself necessarily lead to
inference that it was accused who committed crime but there must be
something more to connect the accused with the crime and to point out the
guilt of the accused and none else. As aforesaid, in the present case
there is clinching evidence to point towards the involvement of the
appellants in the commission of the crime. We find no tangible reason to
deviate from the concurrent findings of the courts below in that behalf.
29. Reliance placed on the dictum in the case of Sangili (supra) in our
view is inapposite. In that case, the court found that the evidence of
last seen together was not established and the factum of motive was based
on hearsay evidence. Further, except the alleged recovery there was no
other circumstance worth the name which could be proved against the
appellants. That is not the position in the present case. For, the courts
below have analytically considered the prosecution evidence in its
entirety to answer both the counts against the appellants. The concurrent
finding recorded by the courts below in that behalf does not merit
interference. Reliance was placed on the decision in Gulab Singh (supra).
In that case, however, the Court found as of fact that the prosecution had
failed to establish the guilt of the accused as evidence against him on the
factum of last seen together was deficient. In the present case, however,
the fact situation is different.
30. In the case of Shyamal Ghosh (supra), on the basis of the evidence
before the Court in that case, in para 74, the court observed that
reasonableness of the time gap is of some significance. If the time gap is
very large, then it is not only difficult but may not even be proper for
the court to infer that the accused had been last seen alive with the
deceased and the former, thus, was responsible for commission of the
offence. In the present case, however, it is noticed from the evidence on
record that deceased Raman visited the house of Nalini accused No. 1 when
the appellants (accused Nos. 3 and 6) were also present in the house at the
relevant time. He did not come out of that house nor was seen by anyone
thereafter elsewhere. The dead body of Raman was taken away in a vehicle
for being dispose of, in which accused Nos. 3 and 6 also travelled. The two
courts below have carefully analysed the entire evidence to conclude that
there was no other possibility except that within all human probability the
crime must have been committed in particular by the appellants. It is well
established that facts of each case must be appreciated on its own merits
to draw inference about the involvement of the accused in commission of
offence or otherwise. The case of Mohibur Rahman (supra) was also a case of
circumstantial evidence. On facts of that case, the Court found that the
circumstances were sufficient to conclusively point out to the commission
of murder of the deceased by the accused, though the circumstances did not
establish offence of causing disappearance of the evidence. While dealing
with the factum of last seen together, the Court held that there must be a
close proximity between the event of accused last seen together with the
deceased. In the present case, as noted earlier, the courts below have
meticulously analyzed the prosecution evidence and have found that the same
established the guilt of appellants in the commission of crime. On facts of
the present case, no fault can be found with the said concurrent findings
recorded by the two courts below. For the same reason, even the exposition
in the cases of Ashok and Mausam Singha Roy (supra) will be of no avail to
the appellants. As the same is in the context of facts of that case.
31. In the case of Malleshappa (supra) the court found that no witness
had spoken about who gave the information to the police. Further, the
deceased was forcibly taken on 12.07.2001, while his dead body was found on
21.07.2001 and what transpired during the intervening period was not
brought on record. The court also noted that when the death of deceased
actually occurred was also not established. In the present case, however,
evidence establishes the fact that the deceased Raman entered the house of
Nalini accused No. 1 and was not seen thereafter. His dead body was placed
in a gunny bag which was then loaded in a vehicle in close proximity of
deceased Raman entering the house of Nalini on the same day. The gunny bag
after being loaded in the vehicle was taken away in which accused Nos. 3
and 6 also accompanied. The medical evidence supports the prosecution case
that the death of Raman occurred around 8th May, 2003 and the Doctor who
conducted the post mortem opined that it was a case of homicidal death.
32. In the case of Keshav (supra), the court held that in the case of
circumstantial evidence, conviction can be recorded on the basis of motive.
Further, the circumstance of last seen together becomes relevant only if
the death takes place shortly after accused and deceased were last seen
together. Even this decision is of no avail to the fact situation of the
present case, for the reasons already discussed hitherto.
33. According to the learned counsel for the accused No.3, a joint
statement of all the accused was recorded by the Trial Court under Section
313,Cr.P.C. This contention, in our opinion, is ill-founded. We have
examined the record and found that separate statement under Section 313 of
each accused has been recorded. It is a different matter that their
statements have been recorded in part on different dates. That, in our
opinion, does not vitiate the trial. Had it been a case of all questions
put to all the accused jointly and one statement recorded by the Trial
Court, it may have become necessary for us to consider this argument. In
the present case, we find that separate statement of each accused under
Section 313, has been recorded on different dates. That is substantial
compliance of Section 313, Cr.P.C.
34. The argument of accused No. 3 that he may be given the same benefit
as given to accused No. 7 is also liable to be rejected. We say so
because, the High Court has given tangible reason for treating the case of
accused No. 7 differently. As regards accused No. 3, there is consistent
evidence that he was present in the house of Nalini at the relevant time
and also participated in loading of the gunny bag containing dead body of
deceased Raman in the vehicle and then travelling in the same vehicle for
disposing the dead body in a valley. This distinguishes his role from that
of accused No.7. The role of accused No. 3 has been rightly analyzed by the
courts below to be similar to accused No. 6 and liable for punishment for
the offence in question.
35. Reverting to the argument of accused No. 1, we reject the same in so
far as the circumstance of motive and last seen together as we have
affirmed the concurrent findings of the courts below in that behalf. The
decisions pressed into service by the counsel for the accused No. 1 have no
bearing on the facts of the present case, including against accused No.1.
36. That takes us to the argument of the counsel for the accused No. 6
– that the dead body of the deceased was discovered at the instance of
accused Nos. 2 and 3 with which accused No. 6 had no concern. The fact
that accused No. 6 did not make similar disclosure about disposal of dead
body of Raman, as made by accused No. 2 and 3, cannot absolve him. The
courts below, in our opinion, have rightly concluded that the concerned
accused, in particular accused Nos. 1, 3 and 6 were party to the conspiracy
to cause homicidal death of deceased Raman and for disposal of the evidence
of crime. We have already analyzed that aspect of the matter in the earlier
part of the judgment, which needs no repetition.
37. The next argument of accused No.6 is that no blood stains were
noticed on the gold ring recovered at his instance. Even this argument is
devoid of merit. The fact that blood stains were not found on the gold
ring would not make the recovery inadmissible. Similarly, the fact that
the gold ring was freely available in the market, would be of no avail to
the said accused. The accused has not produced any evidence to explain the
circumstances in which the said gold ring came in his possession, which has
been identified by the prosecution witnesses as belonging to deceased
Raman. The fact that no mention was made about the said gold ring in the
statement of other accused, does not make the recovery doubtful as the
gold ring has been recovered on the basis of disclosure made by the accused
No. 6 himself after his arrest. On the same lines it was contended by the
counsel for accused No. 6 that the recovery of cash amount from accused No.
6 cannot be used against him as incriminatory evidence. In as much as, the
prosecution has failed to produce any legal evidence to establish the fact
that the currency recovered was part of the same amount which was withdrawn
by the deceased Raman from the Bank on 8th May, 2003. The fact that the
entire amount of Rs. 58,000/- withdrawn by the deceased Raman on 8th May,
2003 was not recovered by the investigating agency also cannot be the basis
to disregard the complicity of accused No. 6, in view of the credible
evidence about his presence in the house of accused No. 1 Nalini at the
relevant time and of having assisted in loading the gunny bag carrying the
dead body of Raman in the vehicle and then travelling in the same vehicle
to dispose of the dead body of Raman. Evidence in this regard being
clinching, absence of legal evidence regarding the source from where the
currency notes had come in possession of accused No. 6 will be of no
avail. The fact that the no blood stains were found on the clothes of
accused No. 6 will also be of no avail, considering the overwhelming
evidence about other relevant circumstances indicating his complicity in
the commission of crime.
38. In the case of Sunil Clifford Daniel (supra) the court held that non-
matching of blood group or absence of report regarding origin of blood,
no advantage can be conferred upon accused to claim benefit of doubt. This
decision also deals with the argument canvassed by the appellants about
absence of signature of accused on the seizure memo/recovery memo. The
court rejected that plea and held that merely because the recovery was not
signed by accused, it will not vitiate the recovery itself. Further, every
case has to be decided on its own facts. Accordingly, even this contention
of the appellants must fail.
39. The argument that the memorandum under Section 27 of the Evidence
Act was a fabricated document as the signature of accused was obtained on a
blank paper, does not impress us .The courts below have considered the
evidence on record and found that the memorandum making disclosure about
the gold ring in possession of accused No. 6 was admissible and
trustworthy. We are not inclined to disturb the concurrent findings
recorded by the two courts below in that behalf.
40. The next argument of the counsel for the accused No. 6 is that
even if accused No.6 had failed to offer any valid explanation regarding
possession of gold ring of deceased Raman, he can at best be proceeded for
offence punishable under Section 411 of IPC and not for the offence of
murder. This submission is obviously an argument of desperation. For,
conviction simpilicitor under Section 411 of IPC or under Section 201/120B
of IPC as rendered against accused No. 7 would be possible, if evidence on
other crucial facts was absent. In so far as accused No. 6, there is
clinching evidence to hold against him on the basis of last seen together,
seen loading the gunny bag in the vehicle and then travelling in the same
vehicle for disposal of the dead body. This evidence cannot be
disregarded. The finding recorded by the Trial Court in favour of the
acquitted accused or by the High Court in favour of the accused No. 7, is
not by disbelieving the evidence of the same prosecution witnesses. But, it
is in the context of the limited role of the concerned accused established
from the evidence of the same prosecution witnesses. The accused No. 6
cannot take advantage of that finding, in view of overwhelming evidence of
his complicity in the commission of crime.
41. In view of the above, we hold that the appeals filed by accused Nos.
1, 3 and 6 respectively, are devoid of merits.
42. We accordingly uphold the finding of guilt as against these accused
Nos.1,3 and 6 as recorded by the courts below as also the sentence imposed
in respect of the offence committed by them.
43. Hence these appeals fail and the same are dismissed. Accused No.1
Nalini Dhapke, appellant in Criminal Appeal No.854/2010 and accused No.6
Satish, appellant in Criminal Appeal No.11/2015 are on bail. Their bail
bonds shall stand cancelled and they are directed to surrender before the
Trial Court within four weeks from today for undergoing the remaining
period of sentence.
…………………………….J.
(Jagdish Singh Khehar)
…………………………….J.
(Arun Mishra)
.……………………………J.
(A.M.Khanwilkar)
New Delhi,
Dated: January 3, 2017
———————–
[1]
[2] AIR 1995 SC 2345 –Para 8
[3]
[4] AIR 1956 SC 217
[5]
[6] (2012) 11 SCC 205 Para 37 to 40
[7]
[8] (2016) 1 SCC 550 – Para 8,9,18-20
[9]
[10] (2001) 1 SCC 378
[11]
[12] (2007) 13 SCC 284
[13]
[14] 1994 Suppl.(2) SCC 372
[15]
[16] (2002) 6 SCC 715
[17]
[18] (2010) 6 SCC 525
[19]
[20] (2011) 11 SCC 754
[21]
[22] (2012)7 SCC 646
[23]
[24] (2014) 4 SCC 715
[25]
[26] (2007) 13 SCC 399
[27]
[28] (2015) 4 SCC 393
[29]
[30] (2016) 1 SCC 550
[31]
[32] (2003) 12 SCC 377
[33]
[34] (2014) 10 SCC 264
[35]
[36] (2009) 17 SCC 106 – Para 18, 21
[37]
[38] 1995 Supp. (4) SCC 502
[39]
[40] 2005 (11) SCC 600 (para 45)
