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Judgment
Per: Justice Vivek Agarwal
This criminal appeal is filed by the convicted appellant Sheku @ Shekhar Kol, being aggrieved of judgment dated 31.01.2025, passed by learned Third Additional Sessions Judge, Sehora, District Jabalpur in ST No.518/2021, whereby learned trial Court has convicted and sentenced the present appellant under Sections 302, 201 IPC with life imprisonment for 3 years and fine of Rs.5,000/- and Rs.2,000/- with respective default stipulations of 6 months and 3 months with further stipulation that both the sentences to run concurrently.
Learned counsel for the appellant submits that appellant is innocent and learned trial Court has convicted the appellant treating it to be a case of circumstantial evidence and has tried to complete the chain of circumstances as mentioned in Paragraph 95 of the impugned judgement stating that accused was known to be deceased. It is further stated that there is an evidence of last seen and also that an altercation had taken place between the accused and the deceased. It is also mentioned that a gamchha, which was soaked in human blood was seized at the instance of the appellant and because cause of death is mentioned in the postmortem report as asphyxia, links in the chain were deemed to be completed. It is also mentioned that there is an extra judicial confession given by the appellant, therefore, on such circumstances learned the trial Court has held that since chain of circumstances is complete, therefore, conviction is recorded.
Learned counsel for the appellant fairly submits that none of these circumstances appear to be correct. There is no evidence of last seen. The witnesses, who were cited as witnesses of last seen were under the coercion of police authority. Gamchha is seized from an open place and there is no identification that the said gamchha is that of the appellant. It is also pointed out that evidence of Karan (PW-7) and Mohit (PW-8) will reveal that there is no evidence of extra judicial confession. Therefore, a prayer is made to show indulgence and set aside the judgement of conviction and acquit the appellant from the charges.
Learned Government Advocate for the State in his turn submits that deceased in the present case is Dinesh Kol. His dead body was recovered from the forest and as per the opinion of the doctor, cause of death was asphyxia. Thus, it is submitted that since cause of death is asphyxia and a gamchha was recovered from the spot at the instance of the appellant showing that it contained epithelial cells of the deceased. It is sufficient evidence to uphold conviction of the appellant.
5 . After hearing learned counsel for the parties and going through the record, it is not disputed that the prosecution story, in brief, is that Basorilal Kol (PW/1), the author of the merg intimation, reported that on 18.07.2021, a Sunday, at about 8:00 p.m., his son Dinesh was sitting with other boys of the colony in front of his house. During the night, he did not return home. The next morning, a search was made for Dinesh in the village, but he could not be traced. On 20.07.2021, at about 9:00 a.m., when the villagers had gone to the Forest Department plantation jungle, they noticed a foul smell coming from a chowki. They found Dinesh's full pant lying outside the chowki. Inside the chowki, they found Dinesh lying dead. There were no clothes on his body, and blood was oozing from his nose and ears. On the basis of the said report, merg investigation was carried out. It is mentioned that after the postmortem examination, the dead body was handed over to the family members. During the investigation, it was revealed to the police that Dinesh was sitting with Karan Kol, Mohit Kol, and Sheku @ Shekhar Kol and that they had consumed alcohol near a tank at Marghatai, where an altercation took place between Dinesh Kol and Sheku @ Shekhar Kol, following which Sheku out of anger strangulated Dinesh.
As far as, Basorilal Kol (PW-1) author of merg intimation is concerned, after saying that Sheku, Karan and Mohit had called his son Dinesh on 18.7.2021 at about 8pm. In cross examination, he admitted that age of his son was 23-24 years. Sheku is aged about 20 years. Dinesh and Sheku were good friends and they used to travel together in relation to work. He also admits that there was never any dispute between Dinesh and Sheku. There was never any altercation between Sheku and Dinesh. After having said that he had seen Dinesh sitting with Sheku, Karan and Mohit at a distance of 200 feet from his house, he admits that nobody had informed him that they had seen Sheku in the company of Dinesh going towards the water tank.
7 . This witness admitted that he had met Mohit on the following day, but Mohit had never informed him that Sheku had strangulated Dinesh. He further admitted that no villager had informed him that Dinesh and Sheku were sitting near the water tank. He admitted that on 19th and 20th July, he had searched for his son, but none of the villagers informed him about his whereabouts. He further admitted that Mohit and Karan were present at the place from where the dead body was recovered. Even at the time of the recovery of the dead body, Mohit and Karan did not inform him that Sheku Kol had strangulated Dinesh or that Sheku Kol had made any extra-judicial confession to them stating that, on account of an altercation, he had strangulated Dinesh. This witness further admitted that till the date of his deposition before the Court, Mohit and Karan never informed him about any altercation between Dinesh and Sheku or that Dinesh was strangulated by Sheku.
In paragraph 7, this witness categorically stated that the gamchha, which he had put over the dead body was taken by the police personnel along with jeans, underwear and belt of the deceased.
In paragraph 8, this witness admits that his son was healthy and one single person could not have strangulated him. He admits that even Mohit and Karan were kept in police custody for two days and when Sheku was arrested then Mohit and Karan were discharged from the police station. He further admits that at the time of Lash Panchnama, he had not informed anybody as to how Dinesh was killed. He admits that even at the time of Lash Panchnama, Mohit and Karan were present and they had not informed him that Sheku had strangulated Dinesh. He further admits that at the time of preparation of Lash Panchnama, he had not seen any injury on the body of his son.
The case diary statement of Basorilal (PW/1) is Ex. P/7. In his case diary statement, he stated that after the cremation of Dinesh, Karan and Mohit informed him and the villagers that on 18.07.2021, they had consumed alcohol near the Marghatai plantation. Dinesh had given Rs.100/- to Mohit to bring alcohol. While under the influence of alcohol, Sheku entered into an altercation with Dinesh, after which Karan left them and returned home. These statements are contrary to the deposition of Basorilal before the Court.
Shakun Bai (PW/2) is the mother of Dinesh. She stated that Dinesh was her younger son. There was no enmity between Dinesh and Sheku. In paragraph 5, she admitted that she had gone to the houses of Mohit, Sheku, and Karan in search of her son, Dinesh. All three persons were found at their respective houses, and when questioned about the whereabouts of her son, they expressed ignorance. She further admitted that all three persons, namely, Sheku, Mohit, and Karan, were taken by the police to the police station on 20.07.2021. She also stated that Sheku had given a memorandum stating that he had strangulated Dinesh. She admitted that her son was healthy and that a single person alone could not have strangulated him. In paragraph 8, she admitted that at the place where the dead body was found, they discovered a pant, underwear, a pair of slippers, and a belt. They also found a gamchha, which had been placed over the dead body by her husband. The police seized the dead body along with the gamchha and the clothing. She further admitted that she was making the statement regarding the alleged extra-judicial confession of Sheku for the first time before the Court.
Samrat Kol (PW/3) stated that Dinesh belong to his village. The incident took place during the rainy season. On the date of the incident, he and Narayan were sitting on a culvert, where Sheku, Dinesh, Mohit, and Karan asked for a matchbox. They provided the matchbox, and after using it, the same was returned. Thereafter, this witness and Narayan returned to their homes. This witness was declared hostile. He has not supported the prosecution case.
In cross examination, Samrat Kol (PW/3) admits that transaction of matchbox is being narrated by him for the first time in the Court. He admits that police had not recorded any of his statements.
Narayan Kol (PW/4) has deposed as PW/3 and has turned hostile. He also denied any revelation made by Mohit and Karan. He admitted that the parents of Dinesh had never informed him that Dinesh was murdered by Sheku. He admitted that the police had not recorded any of his statements but had only taken him to the police station and made him sit there. He admitted that, for the first time, he was revealing before the Court the fact regarding the transaction of the matchbox so to corroborate evidence of last seen.
Deepchand @ Deepak (PW/5), son of Latorilal, is a hearsay witness. He stated that Mohit had informed him that Sheku had murdered Dinesh.
In cross-examination, Deepchand @ (PW/5) admitted that although Mohit had informed him that Sheku murdered Dinesh, despite having knowledge of this fact on 19.07.2021, he did not go to the house of Dinesh to inform his parents about the said revelation. He further admitted that for the first time, he was disclosing this fact before the Court.
Sushma Bai (PW/6) is the person who had seen the articles of Dinesh and his dead body, which was identified by his father. She admits that when they had gone to identify the dead body, at that time Mohit and Karan were present. They had not informed anybody that Sheku had strangulated Dinesh.
Karan Kol (PW/7) and Mohit Kol (PW/8) are the star witnesses of the case. Karan Kol stated that he was informed about the dead body of Dinesh lying near the water tank of Marghatai by Sushma. This witness admitted that he had not seen Sheku strangulating Dinesh. He had also not seen Sheku having any altercation with Dinesh. He denied the statement of Shakun Bai and stated that they had never visited his house to inquire about Dinesh. He admitted that, despite discovering this fact on 19th itself that Sheku had murdered Dinesh, he did not reveal this fact to any family member of Dinesh. Even on 20th, he did not inform anybody that he had knowledge of Sheku murdering Dinesh. He further admitted that, when the police personnel were preparing the lash panchnama, he and Mohit were present, and they never informed the police personnel that Sheku had strangulated Dinesh. He admitted that even on 21.07.2021, he did not inform anybody that Sheku had strangulated Dinesh. He further admitted that the police personnel had arrested this witness along with Mohit and Sheku on 21.07.2021 and all three were kept in the lock-up. This witness admitted that he had not informed anybody that Sheku had strangulated Dinesh. He further admitted that he had come to the Court along with police personnel Dharmendra of Police Station Majholi in his vehicle.
Mohit Kol (PW/8) admitted that he had not met Sheku, Karan, and Dinesh on the date of the incident. He denied that Dinesh and Sheku were with him and were roaming in the village under the influence of alcohol. He categorically stated that Sheku had not strangulated Dinesh in his presence and that no such incident took place before him. He denied that any money was given to him for purchasing liquor. He admitted that Dinesh's brother Kesu had supposedly come to his house during the night, but he had not informed him about any transaction that had taken place between Dinesh and Sheku. He admitted that when the mother of Dinesh had come to his house, he had not narrated anything to her regarding the whereabouts of Dinesh. He further admitted that when he had visited Dinesh and Sheku, they were not consuming alcohol at that time. He admitted that on 18.07.2021, after completing the plantation work, he had returned to his house and was not present thereafter. This is contrary to the statement of Karan Kol (PW/7). He admitted that, initially, the police personnel had taken him and Karan to the police station and accused them of the murder of Dinesh. Thereafter, they asked them to become witnesses, and the police personnel only stated that they should take the name of Sheku and state that he had strangulated Dinesh. Thus, it is evident that Karan (PW/7) and Mohit (PW/8) are planted police witnesses and are not independent witnesses.
Surendra Kumar (PW/9) admitted that he had heard a conversation that some dead body was lying in the plantation, which was later on found to be that of Dinesh Kol. He is not an eyewitness. He is only a hearsay witness.
Jitendra Kumar (PW/10) has also deposed like Surendra (PW/9). He has not supported prosecution case. In para 3 of his cross- examination, he admits that he had not seen the incident but is only a hearsay witness.
Himmat Singh (PW/11) stated that he has no idea as to how Dinesh died.
2 3 . Mana Bai Kol (PW/12) was also declared hostile. She has not supported prosecution case. She admitted that she does not know either Mohit, Karan or Dinesh.
Rajesh Kol (PW/13) admitted that the place where gamchha was recovered that is an open place and he had signed memorandum (Ex.P/17), seizure memo (Ex.P/18) and arrest memo of Sheku (Ex.P/19) at the place where gamchha was recovered. He also admits that he had not read Ex.P/17 or Ex.P/18 but had signed them at the instance of police personnel.
Memorandum (Ex.P/17) was recorded at Gram Negai, Durga Munch on 21.7.2021 at 15:00 hours. Property seizure memo (Ex.P/18) was drawn on 21.7.2021 at 15:30 hours at forest plantation, whereas appellant was arrested on the 21.7.2021 at 15:40 hours from village Negai. Therefore, all the three places of memorandum, seizure and arrest being different, if witness was made to sign all the three documents at one place reveals that they were not prepared independently at the places which are mentioned in them and thus, these three documents gets vitiated.
2 6 . Rahul Kol (PW/14) is a witness of Lash Panchnama, naksha panchayatnama, etc., he too was declared hostile. In cross-examination, he has admitted that it was Dinesh's father who had put his gamchha on the body of Dinesh. Thus, it is evident that recovery of the gamchha being attributed to that of appellant, it is not proved by any independent or cogent evidence apart from it being recovered from an open place. There is no identification of gamchha being that of the appellant.
Gareeb Das Kol (PW/15) is a witness to the memorandum, seizure, and arrest. He admitted that Sheku had not made any statement regarding the murder of Dinesh or hiding the gamchha. He further admitted that for the last 10-15 years, he had a dispute with Sheku and his father and that they were not even on talking terms. Thus, Gareeb Das Kol (PW/15) is an interested witness.
Pulkit Trivedi (PW/16) had prepared a spot map. He admitted that when he had prepared the spot map (Ex.P/20 & P/21), he had not obtained signatures of the villagers on the spot.
Somdeep Patel (PW/17) is a Constable who had taken the body for post-mortem examination and had received various articles in sealed condition from the hospital for viscera and other examinations. He admitted that, at the time of recording the merg intimation by Basorilal (PW/1), it was not informed that his son was sitting with which of the boys and the names of any of the accused were not mentioned.
3 0 . Prabhat Shukla, DSP (PW/21), in his cross-examination, admitted that the gamchha was recovered from an open place. He further admitted that at the place where the accused and the deceased were allegedly last seen by the villagers while sitting and consuming alcohol, he had not recovered any empty liquor bottles or any other incriminating material.
Dr. R.K. Vyas (PW/22), District Health Officer, Victoria Hospital, Jabalpur, had conducted the post-mortem examination. He found several abrasions on the dead body. In his opinion, the cause of death was asphyxia/strangulation. He admitted that the dead body was in a decomposed condition. He further admitted that the ligature mark was caused by a rope. He admitted that neither the rope nor the gamchha was sent to him for query reporting. He further admitted that if somebody rolled down from a hillock, the injuries found on the body of the deceased could have been caused.
Roshni Kol (PW/23) admits in her cross-examination that Mohit and Karan had not informed that Sheku murdered Dinesh.
Thus, when these pieces of evidence are taken into consideration, a few things become clear. Firstly, there is no eyewitness to the incident. Secondly, no extra-judicial confession was made by Sheku to either Karan or Mohit. Mohit and Karan had not seen the appellant having any altercation with the deceased Dinesh. The gamchha which was recovered was the same one that was used by Basorilal (PW/1) to cover the face of the deceased Dinesh. The recovery of the gamchha was made from an open place. No body cells or fingerprints of the appellant were found on t h e gamchha or any other article. No investigation was conducted regarding how the body of the deceased was found lying naked in the abondaned chowki. When it is not the case of the prosecution that the deceased Dinesh was denuded and thereafter strangulated, the said circumstance also creates doubt.
Thus, it is evident that the chain of circumstances is not complete. It has come on record that Karan and Mohit were initially suspected to be accused persons. They were, in fact, taken into custody before being shifted. It has also come on record, and has been admitted by Mohit (PW/8), that the police had made them approvers at the cost of Sheku by asking Karan (PW/7) and Mohit (PW/8) to take the name of Sheku so as to secure their own freedom. It has further come on record that Karan and Mohit were present at the time of preparation of the lash panchnama, and even on 21.07.2021, they never stated that Sheku had strangulated Dinesh.
It has also come on record that both Basorilal (PW/1) and Shakun Bai (PW/2) admitted that Dinesh was a healthy adult and that a single person could not have strangulated him. Thus, the mystery regarding the finding of the dead body of Dinesh in a naked state has not been explained by the prosecution. There is no allegation that it was a case of any unnatural act between Dinesh and Sheku. There is also no forensic report on this aspect. Thus, there is no justification to attribute guilt to Sheku, particularly when there is neither any evidence of the deceased being last seen with him soon before the incident, nor any evidence of an altercation or extra-judicial confession. There are several loopholes in the prosecution story. The chain of circumstances is not complete.
Therefore, in terms of the judgment of the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda Vs. State of Maharashtra (1984) 4 SCC 116, wherein the Hon'ble Supreme Court has held as under:
153.A close analysis of this decision would show that the following conditions must be fulfilled before a case against an accused can be said to be fully established: (1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. It may be noted here that this Court indicated that the circumstances concerned 'must or should' and not 'may be' established. There is not only a grammatical but a legal distinction between 'may be proved' and 'must be or should be proved' as was held by this Court in Shivaji Sahabrao Bobade & Anr. v. State of Maharashtra(') where the following observations were made:
"Certainly, it is a primary principle that the accused must be and not merely may be guilty before a court can convict and the mental distance between 'may be' and 'must be' is long and divides vague conjectures from sure conclusions."
(2)The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
(3)the circumstances should be of a conclusive nature and tendency.
(4)they should exclude every possible hypothesis except the one to be proved, and (5) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
154.These five golden principles, if we may say so, constitute the panchsheel of the proof of a case based on circumstantial evidence.
155.It may be interesting to note that as regards the mode of proof in a criminal case depending on circumstantial evidence, in the absence of a corpus deliciti, the statement of law as to proof of the same was laid down by Gresson, J. (and concurred by 3 more Judges) in The King v. Horry,(l) thus:
"Before he can be convicted, the fact of death should be proved by such circumstances as render the commission of the crime morally certain and leave no ground for reasonable doubt: the circumstantial evidence should be so cogent and compelling as to convince a jury that up on no rational hypothesis other than murder can the facts be accounted for."
156.Lord Goddard slightly modified the expression, morally certain by 'such circumstances as render the commission of the crime certain'.
157.This indicates the cardinal principle' of criminal jurisprudence that a case can be said to be proved only when there is certain and explicit evidence and no person can be convicted on pure moral conviction. Horry's case (supra) was approved by this Court in Anant Chintaman Lagu v. The State of Bombay(2) Lagu's case as also the principles enunciated by this Court in Hanumant's case (supra) have been uniformly and consistently followed in all later decisions of this Court without any single exception. To quote a few cases Tufail's case (supra), Ramgopals case (supra), Chandrakant Nyalchand Seth v. The State of Bombay (Criminal Appeal No. 120 of 1957 decided on 19.2.58), Dharmbir Singh v. The State of Punjab (Criminal Appeal No. 98 of 1958 decided on 4.11.1958). There are a number of other cases where although Hanumant's case has not been expressly noticed but the same principles have been expounded and reiterated, as in Naseem Ahmed v. Delhi Administration(l). Mohan Lal Pangasa v. State of U.P.,(2) Shankarlal Gyarasilal Dixit v. State of Maharashtra(3) and M.C. Agarwal v. State of Maharashtra(4)-a five-Judge Bench decision.
we are of the opinion that the prosecution has failed to satisfactorily prove the chain of evidence pointing out towards the guilt of the accused beyond reasonable doubt, therefore, the appellant is entitled to the benefit of doubt, hence, the impugned judgment of conviction deserves to be set aside.
Accordingly, the appeal is allowed . The impugned judgment dated 31.01.2025, passed by learned Third Additional Sessions Judge, Sehora, District Jabalpur in ST No.518/2021 is hereby set aside. The appellant is acquitted of all the charges. The appellant be released forthwith, if not required in any other case. Record of the trial Court be sent back.