AI Structured Summary
Not yet generated for this judgment
Judgment
Vivek Agarwal, J
This criminal appeal has been filed by appellant Ramshankar son of Gajendra Singh Tomar under the provisions of Section 374 of Cr.P.C. being
aggrieved by the judgment of conviction and sentence dated 28.6.2007 passed by the Second Additional Sessions Judge, Morena, in Sessions Trial
No.173/2004, thereby convicting the appellant under the provisions of Section 302 of IPC with life imprisonment.
It has come in the judgment of learned Additional Sessions Judge that appellant was in custody from 30.4.2003 to 10.7.2003 and thereafter from
23.2.2006 to 28.6.2007, roughly for a period of 6 months, 16 days, which is to be adjusted from the period of sentence finally awarded by the learned
Additional Sessions Judge.
Prosecution story in short is that the case was registered on a private complaint filed by the widow of the deceased Naresh Singh, who was
allegedly taken by the appellant and his brother Siyaram from the house of the deceased and thereafter he did not
return and though it was promised that deceased will return back to his house in the evening of the fateful day i.e. 26.5.2001, when the deceased did
not return, his wife Smt. Urmila (PW-1) tried to search him and thereafter she gave intimation to the police Station. Police did not recorded any FIR
and on the contrary on 30.5.2001 Station In-charge police Station, Mahua, A.B.Pathak alongwith 5-6 Constables brought dead-body of Naresh to
complainant Urmila (PW-1) and informed that Naresh has died because of inter-gang rivalry.
It is alleged that both the accused persons Ramshankar and Siyaram were informers of the police who killed complainant's husband Naresh in
collusion with SHO A.B.Pathak, and therefore, they tried to suppress the incident in the name of inter-gang rivalry. Both the accused persons were
provided police protection as they were the police informers and that was the motivation for the police not to register a case despite intimation given
by the complainant. When the police did not register the FIR, complainant sent letters to the Superintendent of Police and Human Rights Commission,
but no action was taken even on such complaint, on the contrary, accused persons on 8.6.2001 threatened the complainant that if she proceeds with
her report, then she may lose her life.
Complaint was filed and Magistrate after completion of the proceedings under Sections 200 and 202 of Cr.P.C. on appearance of the accused
persons, committed the case to the Court of Sessions.
As per prosecution story, SHO Mahua A.B.Pathak on 29.5.2001 on getting intimation that certain members of dacoit gang were killed due to inter-
gang rivalry tried to search dead-bodies and recovered dead-body of husband of complainant Naresh son of Dayaram on the banks of river Chambal
from Jodharam Mallah Ki Kachwari at Gohad Ka Pura. At that time, he was not aware of identification of the deceased, therefore, he summoned
local witnesses and prepared Shav Panchnama. In this Shav Panchnama bullet injuries have been found on the chest. Body of the deceased was
identified, and therefore, alongwith the letter of A.B.Pathak body was sent for postmortem to Civil Hospital, Ambah. Postmortem was carried out by a
team of doctors consisting of Dr. G.C.Arya and Dr. R.P.Sharma on 30.5.2001 and they opined in the postmortem report (Ex.P/14) that there were
two entry wounds and one exit wound causing injuries to the lungs, stomach, ribs and scapula which were caused within 48-72 hours of death.
Both the accused persons abjured their guilt. This appellant did not examine any defence witness but co-accused examined two defence witnesses.
Thereafter recording of the evidence of prosecution witnesses which had examined six witnesses, statements of the accused persons were taken
under Section 313(1)(b) of Cr.P.C. Accused Siyaram gave a statement that he had not taken deceased Naresh with him on 26.5.2001. On 27.5.2001
he had visited village Bachheri, Distt. Bhind, in connection with matrimonial alliance of his sister. Though present appellant Ramshankar denied the
charges and called for full fledged trial, but in his statement under Section 313(1)(b) of Cr.P.C.he gave a statement that on 26.5.2001 he had not taken
Naresh alongwith him. On 27.5.2001 he had gone to the river bank alongwith Pancham Singh to take bath. When on 30.5.2001 SHO A.B.Pathak took
body of the deceased to village Medi Ka Pura, then appellant Ramshankar was taking care of dead-body of Ramesh who was a dacoit and for whom
deceased Naresh was carrying food.
As per the version of appellant Ramshankar, Ramesh Kushwah was involved in the crime and was absconding for last 14-15 years in the wild of
jungles and was engaged in the business of abduction and recovery of ransom. According to him, about 6-7 years back, appellant was introduced to
him and his brother Siyaram. In fact, appellant, his brother Siyaram and deceased Naresh were part of gang of Ramesh Kushwaha. About a month
prior to the incident when appellant was under the influence of intoxication, then Ramesh Kushwaha had taken some money from his pocket so also
telephone number of IG. It is also an admitted position that police Constable Shivnath had given number of Inspector General of police N.K.Tripathi to
the appellant and he was given an offer that if he helps in killing of Ramesh, then his life will be taken care of, as a result of which he fired on Ramesh
Kushwah with his 12 bore gun, as a result of which he died. At that point of time, deceased Naresh was carrying 306 bore gun and when he started
running, then Ramshankar and Siyaram had fired at Naresh.
Learned Additional Sessions Judge framed three issues; as to whether death of deceased Naresh son of Dayaram was homicidal, whether death of
deceased Naresh was caused by the accused persons or his death was caused because of mutual criminal conspiracy resulting in offence of murder.
Third issue was that whether on 8.6.2001 accused persons threatened Urmila with her life thus causing criminal intimidation.
As far as Siyaram is concerned, his statement under Section 313 of Cr.P.C. is not of such nature to create circumstance accepting his own guilt,
and therefore, the learned Additional Sessions Judge has acquitted him for want of sufficient evidence, but statement given by the appellant under
Section 313 of Cr.P.C. are confessional, and therefore, he has been convicted under Section 302 of IPC.
It is the case of the appellant that he could not have been convicted under Section 302 of IPC merely on the basis of certain discrepancies in the
statement given under Section 313 of Cr.P.C. It is submitted that learned Additional Sessions Judge has failed to appreciate and evaluate the evidence
properly. It is also submitted that there is contradiction in the statements of Urmila (PW-1) and Ramdas (PW-4) in regard to taking the deceased on
26.5.2001, but this aspect has been overlooked by the learned Additional Sessions Judge. It is submitted that theory of last seen could not be proved,
and therefore, conclusion drawn against the appellant on the basis of his statement recorded under Section 313 of Cr.P.C. is faulty.
It is further submitted that on behalf of the appellant statement was recorded under Section 313 of Cr.P.C. to the effect that when deceased
Naresh started running, then appellant alongwith acquitted accused fired on Naresh, therefore, once co-accused has been acquitted, then even
appellant is entitled to be acquitted because his conviction is based merely on the basis of suspicion. It is further submitted that Dr. G.C.Arya (PW-6)
has found two entry wounds on the body of the deceased as a result of which it cannot be said that which of the bullets fired by the appellant or his
co-accused had hit the deceased and deceased might have been killed by bullet of some other member of gang. It is also submitted that dead-bodies of
Ramesh and Naresh were found at a distance of 1 km and no blood stains were found in between, therefore, he was not killed by bullet admittedly
fired by the appellant. It is also submitted that as per the complaint, they had taken the deceased on 26.5.2001, whereas as per Dr. G.C.Arya (PW-6)
death had occurred 2-4 days prior to the date of postmortem i.e. 30.5.2001 i.e. sufficient to hold that chain of circumstances is not complete.
Smt. Manju (DW-2) in her defence statement has deposed that mental condition of the appellant is not proper and this has been confirmed by Dr.
Vikas Dubey (CW-2) who deposed that appellant is under tension and worry, thus usually keeps quite. It is submitted that statement of Smt. Manju
(DW-2) has wrongly been overlooked to record conviction.
Learned Public Prosecutor on the other hand supports the judgment of conviction and sentence. Learned Public Prosecutor has drawn attention of
this Court to the private complaint which was filed by Smt. Urmila under the provisions of Sections 302, 120-B, 212, 221, 506-B/34 of IPC. It is
submitted that in para 2 of the complaint, it has been categorically mentioned that accused persons had visited her house at 26.5.2001 at about 4 pm
and called her husband Naresh. When her husband Naresh refused to go, then he was taken on an assurance to drop him by the evening. This
incident had taken place in front of Ramdas (PW-4) son of Kadam Singh, Thakur by caste. It is mentioned in paragraph 2 of the complaint that other
relatives of the complainant had gone to village Useth for picking up of 'Pattal' (handmade plate) in a marriage function. It is submitted that when
complaint was registered, then statement of Ramdas (PW-4) was recorded. Though before the Court Ramdas (PW-4) has turned hostile, but when he
was declared hostile and leading questions were put to him, he has admitted that when he had given statement before the JMFC, then statement of
Ramsevak was also recorded. After denying in chief about acquaintance with the accused persons, he admitted that he knows them for last ten years.
However, he submitted that both are farmers and if they are informers of the police, then it is not known to him. The statement which was given
before the JMFC, were read over to him legibly and in pieces, but he denied having recollecting giving such statement. It is submitted that further in
the light of admission that he had given his statement before the Court of JMFC in presence of Ramsevak (PW-5), his statement can be read and
though he has denied recollecting giving such statement but on confrontation he has not been able to belie such statement, therefore, contention of
appellant that there is variation in the statement of Urmila (PW-1) and Ramdas (PW-4) in regard to taking away of Naresh on 26.5.2001 has no force.
It is submitted that in fact statement of complainant Urmila ( PW-1) has remained un- rebutted and in fact it was supported by Ramdas (PW-4)
before the JMFC when the complaint was registered and probably under pressure or threat or due to the fact that appellant was also Thakur by caste
as Ramdas (PW-4) is, and therefore, he might have retracted from his statement but such retraction will not be of much significance looking to the
fact that he had given statement before the JMFC and such statement having been given before the Magistrate has its evidenciary value.
Learned Public Prosecutor for the State has placed reliance on various judgments of Supreme Court to point out the importance of statement given
under Section 313 of Cr.P.C. She has placed reliance on the judgment of the Supreme Court in the case of Phula Singh Vs. State of Himachala
Pradesh as reported in (2014) 4 SCC 9 wherein it has been held that it is the duty of the accused to furnish an explanation regarding any incriminating
material that has been produced against him. Accused may choose to maintain silence or even remain in complete denial when his statement under
Section 313 of Cr.P.C. is being recorded. However, in such an event, Court would be entitled to draw an inference, including such adverse inference
against accused as may be permissible in accordance with law. Similarly, reliance has been placed on the judgment of the Supreme Court in the case
of Bable alias Gurdeep Singh Vs. State of Chhattisgarh as reported in (2012) 11 SCC 181 wherein discussing scope of Section 313 of Cr.P.C. it has
been held that inference can be drawn in the event of failure of the accused to explain incriminating circumstances established by the prosecution.
Reliance has also been placed on the judgment of the Supreme Court in the case of Sanatan Naskar and another Vs. State of West Bengal as
reported in (2010) 8 SCC 249. It has been held that scope of Section 313 is wide and it is not a mere formality. Answers given thereunder by accused
are relevant for finding truth and examining veracity of prosecution case but are not strictly evidence and can be used within permissible limits
envisaged by Cr.P.C. Courts may rely on portion of statement of accused and find him guilty on consideration of other evidence against him led by
prosecution, however, such statements should not be considered in isolation but in conjunction with evidence adduced by prosecution.
It is also submitted by learned Public Prosecutor that alibi of unsoundness of mind has not been proved, therefore, such alibi will not change the
judgment in favour of the appellant.
After hearing both the sides and perusing the record, it is evident that the Sessions Court on 5.5.2007 dealt with the issue of mental sickness of
appellant Ramshankar. On 5th May, 2007 an enquiry was conducted in accordance with the provisions contained in Section 329 of Cr.P.C. and it has
come on record that plea of unsoundness of mind is not sustainable. It has come on record that when statement under Section 313 of Cr.P.C. was
recorded, then some untoward incident had taken place on 26.3.2007. A perusal of the order-sheet dated 26.3.2007 reveals that accused persons were
examined under Section 313 of Cr.P.C. Their defence statement was recorded. Appellant gave defence statement at length and such statement was
recorded in detail. Appellant refused to give any evidence in defence, whereas accused No.2-Siyaram submitted that he would like to examine his
father Gajendra and wife of accused No.1 Ramshankar, Smt. Manju in his defence. It has come in the order-sheet that when their statement under
Section 313 of Cr.P.C. was recorded and Court was recording statement of appellant Ramshankar on its own and that of Siyaram by steno typist on
the dictation of the Presiding Officer, then appellant Ramshankar admitted that he had shot at Ramesh and Naresh as informer of the police and
accused Siyaram was party to such firing. Siyaram tried to interfere in the proceeding and said something to the appellant by mumbling when Court
stopped taking statement of Siyaram and recorded statement of Ramshankar. At that point of time, Siyaram kicked Ramshankar from behind and
thereafter Ramshankar also kicked Siyaram, as a result of which unpleasant situation had developed which was controlled by calling police force.
Court recorded a finding that such ugly scene was created at the initiation of Siyaram. Bail bonds of Siyaram were suspended and case was fixed for
next day.
During the proceedings Siyaram expressed that Ramshankar is mentally sick for the last one year and he was not appearing in the Court but was
forcefully brought to the Court. With a view to examine mental status of Ramshankar Court had entered into a dialogue with him and asked him that
why he had not appeared before the Court, then he replied that he had gone to Baroda to work as a security guard because he has three children and
had no money to appear before the Court. He further replied that he thought that if he will not appear before the Court, then police shall come within
2-3 months and in the meanwhile he will be able to earn some money. When the Presiding Officer specifically asked whether appellant Ramshankar is
understanding what he is saying, he gave a very balanced reply. When he was asked that why he has beaten his brother, then he said that his brother
kicked him first and prior to starting of his examination he was unnecessarily harassing him. On the basis of such interaction, learned Additional
Sessions Judge, Morena, recorded a finding about good health of the appellant.
Thereafter Dr. Vikas Dubey was examined as court witness No. 2 and expressed that he is a medical specialist. He alongwith a team of civil
surgeon Dr. R.C. Bandil and Dr. S.R. Sharma had examined Ramshankar and on systematic examination found that all the organs like heart, lungs,
kidney and digestive system etc. to be normal and no abnormality was detected. On enqiury Ramshankar had expressed that he is not able to sleep,
that may be the reason for time lag in giving reply to the questions put forth to him. Dr. Vikas Dubey also gave a statement that it is possible that
accused may be deliberately giving late reply to the queries. This doctor stayed in court for half an hour during the proceeding and Ramshankar did not
exhibit any abnormal conduct. In the light of statement of Dr. Vikas Dubey by whom conduct of the accused was examined, Court reached to the
conclusion that story of mental illness has been fabricated after recording of the statement of Ramshakar under section 313 of Cr.P.C. so to save him
from conviction in the light of his admission of guilt.
On 26.05.2007 learned Additional Session Judge suo motu reopened the case under Section 311 of Cr.P.C. and directed that In-charge of Civil
Hospital Ambah be directed to produce a carbon copy of postmortem report of deceased Naresh and concerning doctor who performed the
postmortem shall remain personally present before the court. In view of such facts, postmortem report (Ex.P/14) was produced and its author G.C.
Arya ( PW-6) was examined.
Dr. G.C.Arya (PW-6) stated that on 30.5.2001 dead-body of Naresh was brought by SHO A.B.Pathak and alongwith him Kadam Singh R/o of
Mahendirai Ke Pura was there. Dr. G.C.Arya alongwith Dr. R.P.Sharma conducted postmortem at about 1 pm. There was a firearm wound of entry
present over the right side of chest at 2nd intercostal space 2 cm lateral to sternum, 2x 2 cm in size obliquely directed, margins not well defined. There
was another firearm wound of entry present over the left side of chest below the clavicle 2x 2 cm in size directed post. and backwards. Margins not
well defined. An exit would was also present over left scapular region of back 3 x 2.5 cm in size margin everted, fat was coming out from the wound.
Scapular bone was found broken in pieces. Brain was decomposing. 5th rib towards the back was broken. Lungs were ruptured and the heart was
cleared. No blood was found in the heart. Liver and spleen were also deflated. Two metal pieces were recovered from the right lung and death had
occurred within 48-72 hours of the postmortem.
This corroborates the story of the complainant that her husband was taken away on 26.05.2001 at about 4 p.m inasmuch as postmortem was
conducted on 30.05.2001 and death had since occurred between 26.05.2001 and 30.05.2001 duration of death was 48-72 hours. On court query,
doctor opined that time of death was more than 48 hours. This witness clearly denied the suggestion of defence counsel that death had occurred 4-5
days prior to postmortem. He also clearly deposed that only two injuries were found on the body as are mentioned in the postmortem report and it was
not possible to explain the distance from which firearm was used inasmuch as because of decomposition of the body both entry and exit wounds
eroded.
Though defence witnesses Gajendra Singh Tomar (DW-1) father of the appellant and Smt. Manju (DW-2) wife of the appellant have been
examined to point out that he is not keeping good health but court witness No. 1 Parmanand Kesariya, Jailer categorically deposed that he is jailer in
Sub-jail, Morena for last six months. He was never informed in last six months about any unusual behaviour of Ramshankar. Prior to his tenure no
adverse remark was found against his conduct or behaviour. He deposed that newspapers are available in each Barrack so also television. No
complaint has been received in relation to Ramshankar to have entered into any dispute on the issue of newspaper or television. He further mentioned
that no adverse information was received in regard to his toiletry habits. As all the accused persons wash their own clothes, he too washed his cloths.
He moves with other accused persons in a normal manner. In cross-examination he deposed that every inmate is subjected to medical examination
once in 2 - 2 1/2 months. He admitted that two such medical camps were organized during his tenure and further deposed that he has not brought
complaint register of the inmates as there was no direction to bring such register. When defence counsel was asked whether he would like to call for
such register and for such purpose evidence of jailer can be postponed, then he expressed that he does not wish to call for such register. He further
expressed that none of the relatives or wife of Ramshankar either orally or otherwise gave any information in regard to his unsoundness of mind.
When these statements are seen in the light of statement of court witness No. 2 Dr. Vikas Dubey and they are examined in the light of the
provision contained in Section 329 of Cr.P.C. it is evident that no action was taken by the defence counsel before the learned Additional Session Judge
even under the provisions of Section 329 of Cr.P.C. Thus it is evident that plea of unsoundness of mind was taken immediately after confessional
statement was made by the appellant while recording his 313 Cr.P.C. statement before the Court.
In fact, the trial court has connected the chain of evidence and has held that it is beyond doubt that theory of last seen has been proved by Urmila
(PW-1) wife of the deceased. There is corroboration by Ramdas (PW-4) though later on he turned hostile. This corroboration is in the form of his
admission of giving statement before the JMFC at the time of registration of private complaint.
It has come on record that though appellant denied forcefully taking away of the deceased and submitted that when Ramsewak had reached his
house at about 8 am on 27.5.2001 to look for his brother, at that time, he had gone to the river bank for taking bath alongwith Ramesh son of Pancham
Singh. In reply to question No..20 that on 30.5.2001 SHO A.B.Pathak of police Station Mahua reached village Mehdirai Ka Pura alongwith 4-5
Constables, he replied that at that point of time he was taking care of dead-body of Ramesh on the other side of Chambal river. In reply to question
No.24 that deceased Naresh was not part of any gang and was not involved in any dacoity, appellant replied that Ramesh Kushwah was absconding
and was living in jungle. Naresh used to take food for him. In reply to question No.25 that accused Siyaram and Ramshankar had killed Naresh as has
been stated by witness Urmila, he admitted that they had taken up the task as informer and as a result of which had killed him. He admitted that
Naresh died because of firearm injury. He denied being part of Ramesh gang but admitted his meeting with the members of such gang. In reply to
question No.38 that accused persons alongwith Ramesh and Naresh were consuming liquor every day, he submitted that he and Ramesh only used to
consume liquor. When he was asked that whether he wants to say anything, he narrated the story that Ramesh was absconding after committing
crime for the last 14-15 years in the wilderness of the forest and had come in his contact 6-7 years prior to his death. He was introduced by Ramdas
at the place of Kadam Singh. He was kidnapping persons for ransom. There were 11 persons in his gang and since he had taken up the task of
Mukhbari, therefore he had shot dead Ramesh with a bullet in his back. Naresh tried to run away with 306 bore gun, then he fired from his single bore
gun and simultaneously Siyaram had fired on Naresh with double barrel gun. Naresh was hit by one bullet and died. He was watching the dead-body
of Ramesh. This statement given by the appellant reveals that his state of mind was not only sound but he was understanding the consequences of his
acts.
In the case of Narain Singh Vs. State of Punjab as reported in (1963)3 SCR 678 it has been held that if the accused person in his examination
under 313 confesses to the commission of the offence charged against him the, court may, relying, upon that confession, proceed to convict him, but if
he does not confess and in explaining circumstance appearing in the evidence against him sets up his own version and seeks to explain his conduct
pleading that he has committed no offence, the statement of the accused can only be taken into consideration in its entirety. It has been held that if the
accused admits to have done an act which would but for the explanation furnished by him be an offence, the admission cannot be used against him
divorced from the explanation. In the case of State of UP Vs. Lakhmi as reported in AIR 1998 SC 1007 it has been held that where the accused
admits any incriminating circumstance appearing in evidence against him, such admissions cannot be rejected merely on the ground that such
admissions were advanced as a defence strategy. Coupled with this, the fact is that in terms of the provisions contained in sub-section (4) of Section
313 of Cr.P.C., it is specifically provided that the answers given by the accused may be taken into consideration in such inquiry or trial, and put in
evidence for or against him in any other inquiry into, or trial for, any other offence which such answers may tend to show he has committed.
In the present case, in the light of the law laid down by the Supreme Court in the cases of Narain Singh and Lakhmi (supra) so also in terms of the
provisions contained in sub-section 4 of Section 313 of Cr.P.C. since in the explanation the appellant has accepted his guilt, such circumstance can be
used against him. In fact, provisions contained in Article 20(3) only provides that no person accused of any offence shall be compelled to be a witness
against himself. In the present case, there is no circumstance to point out that appellant was compelled to be a witness against himself while giving
statement under Section 313 of Cr.P.C., and therefore, such protection is also not available to the appellant in the present case. Thus, in view of the
fact that there were no proceedings undertaken under Section 329 of Cr.P.C., Court witness No.2 Vikash Dubey has certified that appellant was not
of unsound mind and Court had subjected him to long interactive session so to find out his state of mind, so also when appellant was asked as to
whether he wants to say something in addition, he gave such explanation confirming his earlier statement of having killed Ramesh and Naresh, it
cannot be said that statement recorded under Section 313 of Cr.P.C. have been arbitrarily and illegally used to record conviction.
In the light of the law laid down by the Supreme Court in the cases of Sanatan Naskar, Bable alias Gurdeep Singh, Phula Singh (supra) so also in
the case of Ashok Debbaram alias Achak Debbarama Vs. State of Tripura as reported in (2014) 4 SCC 747 wherein it has been held that statements
given under Section 313 of Cr.P.C. can be used for corroboration alongwith other evidence for conviction, this Court is of the opinion that learned
Additional Sessions Judge has not committed any illegality in recording a finding of guilt of the appellant under Section 302 of IPC in view of his
admission of having killed Naresh by firing. The appellant is not entitled to take benefit of acquittal of accused Siyaram inasmuch as Siyaram had not
given any such confessional statement while recording of his statement under Section 313 of Cr.P.C. Thus, the appeal fails and is dismissed. The
appellant is in jail, he shall suffer the remaining jail sentence as imposed by the learned trial Court.