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CRIMINAL APPEAL NOS. 333-334 OF 2017
SHAILENDRA RAJDEV PASVAN AND
OTHERS ….. APPELLANT(S)
JUDGMENT
Bench of the High Court of Gujarat dated 28th September 2016 convicting the appellants under Section 302 read with Sections
363, 364, 364-A and 365 and Section 120-B of the Indian Penal
Code, under Section 21 (1)(a) of the Arms Act and under Section
3 and 5 of the Indian Explosive Act. The Division Bench while reversing the order of acquittal passed by the trial court, has imposed following punishment upon the appellants:
Offence under
Section
Sentence Imposed Default Sentence
302 of IPC Life Imprisonment + Two month’s simple
Criminal Appeal Nos.333-334 of 2017
363 of IPC Seven years’ rigorous imprisonment + Fine of Rs. 5,000/- each
One month’s simple imprisonment
364 of IPC Ten years’ rigorous
364-A of IPC Life imprisonment +
Fine of Rs. 10,000/- each
365 of IPC Seven years’ rigorous
2. Briefly stated, the case of the prosecution is that on 5th February 2001, the complainant, Paramhansh Mangal Yadav (PW-1), had informed the police at Kapodra Police Station that his youngest son, Arjun, aged about 9 years who was studying in second standard, was missing from 4th February 2001. On the fateful day, the complainant, as per routine, had left for work at 8:00 am and had returned at 2:00 pm for lunch, when he noticed that Arjun was missing. The complainant had searched for Arjun in the streets and at the relatives’ residing nearby but he could not be located. This information given by the complainant was recorded by an entry made in the police diary. Thereafter, formal complaint was registered on 14th February 2001. In this complaint, Paramhansh (PW-1) had pointed out that initially Shailendra Rajdev Pasvan, Appellant/Accused No.1, had joined the search but thereafter he had suddenly vanished. After about four days, the Appellant No.1 had made a call to the complainant and disclosed that he was in Vapi. The complainant got suspicious and thereupon had sent his brother-in-law Sadhusharan Harinandan Yadav (PW-9) and two other relatives Sudarshan and Premchand Yadav to Vapi to bring Appellant No. 1 back. Upon returning, Appellant No. 1 is alleged to have made an extra-judicial confession before about 50 people near Paramhansh’s (PW-1) house. Appellant No. 1 had confessed that he had kidnapped Arjun at the behest of Ramkeval Mutur Yadav, Accused No. 5, who had animosity and grievance against the complainant. Appellant No. 1 had made Arjun sit on his bicycle and had taken him to the railway station, where he was handed over to Ram Ashish and Shivnath, Appellant/Accused Nos. 2 and
3.
3. Thereupon, Shailendra, Appellant No. 1, was arrested by the police on 14th February 2001.
4. After the alleged extra-judicial confession, the complainant had sent his brother-in-law, Sadhusharan (PW-9), again to Vapi along with one Jugeswar to search for Appellant Nos. 2 and 3. They had thereupon met Sanjay at Vapi who had informed that Appellant Nos. 2 and 3 were residing at his home. Thereupon Jugeswar informed the complainant who in turn conveyed this information to police. Appellant Nos. 2 and 3 were thereafter arrested by the police from the house of Sanjay.
5. It is the case of the police that on 13th February 2001 a mutilated decomposed dead body without one leg was found by Naginbhai Kalyanji Patel (PW-15) and his son Sanjay Patel (PW-5) in their agricultural farm, who had then informed the police station at Pandesara. The said dead body was sent for post mortem to the New Civil Hospital in Surat and kept in the mortuary.
6. It is the case of the police that dead body was of Arjun and that the Appellant No. 1 after arrest on 14th February 2001 had disclosed and shown the place where Arjun was left with Appellant Nos. 2 and 3 and where the bicycle used had been left. The Appellant Nos. 2 and 3 had also agreed and shown the place where Arjun was murdered and his dead body was disposed.
7. After completing investigation charges were framed against the accused for offenses under Section 363, 364, 364-A, 365 and 302 read with Section 120-B of the IPC and under Section 21 (1) (a) of the Arms Act and under Section 3 and 5 of Indian Explosive Act and they were put to trial.
8. There is no eye witness of the incident and the entire case of the prosecution rests on circumstantial evidence. The trial court vide judgment dated 17th January 2006 acquitted the accused from the charges. The circumstances which weighed with the trial court were:
(I) The fact that the Appellant No.1 and the deceased were seen together prior to death was extremely doubtful, and was not proved.
(II) No reliance could be placed on extra-judicial confession.
(III) Medical evidence adduced in the case was contradictory.
(IV) When the first Panchnama after recovery of the dead body was drawn no hair or bone was found at the site of the occurrence but subsequently bunch of hair and bones were discovered from the same site on the pointing out of the accused.
(V) No evidence has been adduced in respect of ownership of bicycle on which the Appellant No.1 was alleged to have taken away the deceased, to establish that it belonged to him or it was borrowed by him from some person.
(VI) Demand of ransom for kidnapping was not proved by evidence thus motive was not established.
(VII) These circumstances proved did not link together so as to form complete chain leading to only one consequence i.e. guilt of the accused.
9. Relying broadly on the testimonies of Kamlesh Bhagvanbhai Thakur (PW-28) and Kashiben Chhitubhai Patel (PW-29) to establish the last seen theory and the extra-judicial confession, while cherry-picking the details of and papering the gaps in the medical evidence, the High Court set aside the acquittal and convicted the appellants. The challenge to the conviction, consequently, has been predicated on the tenability of the said evidence.
10. At the outset, there are material contradictions in the testimonies of Kamlesh (PW-28) and Kashiben (PW-29). Kamlesh (PW-28) has testified that he and Dhaval were playing in the society and Arjun was riding a bicycle, whereas Kashiben (PW-29) has deposed that Arjun was on the terrace of Paramhansh’s (PW-1) house, around the same time. Further, Kashiben (PW-29) though seated near the door has not deposed as to the presence of Kamlesh (PW-28) in the vicinity. More importantly in the context of the Appellant No. 1 being last seen with Arjun, Kamlesh (PW-28) deposed that Appellant No.1 had spoken to Arjun, while they were heading towards the video game shop; Kashiben (PW-29), on the other hand, has deposed that the Appellant No.1 had gone to the terrace of Paramhansh’s (PW-1) house where Arjun was also present and both of them came down. The story about the abduction of Arjun projected by Kashiben (PW-29) is even more debatable, if not clearly unacceptable as house of the complainant – Paramhansh (PW-1) is located at some distance (five houses apart) from the residence of Kashiben (PW-29). The evidence of Kamlesh (PW-28) and Kashiben (PW-29) also becomes shaky as both of them knew that Arjun was missing since 4th February 2001 but did not inform Paramhansh (PW-1) or the police to the presence and conduct of the Appellant No. 1, despite residing near the residence of the complainant and being aware of the frantic search for Arjun post his disappearance. This renders their testimony unreliable. Thus, the theory of last seen fails and is rejected as a feeble and untrustworthy evidence.
11. As noticed above, the dead body in a decomposed state with one leg missing was found on 13th February 2001 in the agricultural farm of Naginbhai Patel (PW-15) and Sanjay Patel (PW-5), which is a day before the Appellant No.1 was arrested. The case set up by the prosecution is that the dead body was that of Arjun. However, the complainant and father, Paramhansh (PW-1) has not testified that he had identified the dead body found in the agricultural farm was that of Arjun. Paramhansh’s (PW-1) testimony is completely silent on the said aspect. Inspector Munavarkhan (PW-24) has testified that Paramhansh (PW-1) had identified the dead body but this would be of no consequence as Paramhansh (PW-1) in his court testimony has not spoken about any such identification. Munavarkhan (PW-24) has not referred to any identification memo prepared by him. The testimony of witness to the panchnama on recovery of the dead body vide Ganeshbhai (PW-17) indicated that the body had decayed and had small maggots in it. Mansinghbhai Valvai (PW-20) who was working as Investigation Officer at Pandesara Police Station has testified that the naked body had blackened and was puffed up, the external skin had decayed and the bone was visible from knee to paw of the right leg. Further doubt is created by the postmortem report prepared by Dr. Pravinbhai Kalidas Patel (PW-27) marked “Ex-88” which records that rigor mortis and PM lividity had passed off and the death had occurred 36-48 hours prior to the post-mortem. Minimum age of the deceased was recorded around 16 years. Arjun on the other hand was 9 years of age. As per the police version, bones of human body namely tibia and fibula were found at the agricultural farm and sent for medical examination which was conducted by Dr. Mohammad Kureshi (PW-25). Dr. Mohammad Kureshi (PW-25) has stated that bones were in the same stage of decomposition, however in his cross-examination, he could not state the exact age though he was of the opinion that the bones were of a person below 16 years. He also admitted that no chromosome opinion of the bones from FSL report was received and thus it could not be said whether bones were of a male or female. Admittedly DNA test was also not conducted. In this background, the version of the prosecution cannot sustain, and recovery of the dead body of Arjun cannot be attributed to the disclosure statements made by the appellants.
12. Thus the entire case of the prosecution is based on circumstantial evidence. It is well settled that in a case which rests on circumstantial evidence, law postulates two fold requirements:-
(i) Every link in the chain of the circumstances necessary to establish the guilt of the accused must be established by the prosecution beyond reasonable doubt.
(ii) All the circumstances must be consistent pointing only towards the guilt of the accused.
13. This court in the case of Sharad Birdichand Sharda v/s State of Maharashtra[1] has enunciated the aforesaid principle as under:- “The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the Accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the Accused and inconsistent with his innocence”.
14. Another important aspect to be considered in a case resting on circumstantial evidence is the lapse of time between the point when the accused and deceased were seen together and when the deceased is found dead. It ought to be so minimal so as to exclude the possibility of any intervening event involving the death at the hands of some other person. In the case of Bodh Raj Alias Bodha v/s State of Jammu and Kashmir[2], Rambraksh v/s State of Chhattisgarh[3], Anjan Kumar Sharma v/s State of Assam[4] following principle of law, in this regard, has been enunciated:- “The last seen theory comes into play where the time gap between the point of time when the Accused and deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the Accused being the author of crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the Accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that Accused and deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases”.
15. In the case at hand, evidence of PW-28 and PW-29, who were crucial to the case of prosecution to establish that deceased was last seen with Appellant Accused no.-1, is riddled with