ASHOK YADAV AND ORS.versusSTATE OF MADHYA PRADESH

A                        ASHOK YADAV AND ORS.
                                       v.
                      STATE OF MADHYA PRADESH

                            NOVEMBER 19, 1996.

B               [DR. A.S. ANAND AND K.T. THOMAS, JJ.]

         Indian Penal Cade, 1860:

         Ss.363, 364 and 302-Kidnapping-A school going child kidnapped-
C Later he was found dead-Appellants prosecuted u!Ss,364 and 302--Trial-
  Prosecution led evidence as regards kidnapping-Circumstantial evidence-
  Conviction and sentence by trial court on both counts upheld by High
  Court-Held, evidence led by prosecution is ofconclusive nature as regards
  kidnapping of the deceased, but inconclusive with regard to offence of
  murder-Chain of evidence not complete as to leave no doubt about the
D conclusion that appellants commi11ed the murder-Fae/um of kidnapping
  with intention to commit murder not established-Conviction and sentence
  u!Ss, 364 and 302 set aside-Appellants convicted u/s, 363 and sentenced
  to RJ. for 5 years.

         CRIMINAL APPELLATE JURISDICTION: Criminal Appeal Nos.
E 58-59 of 1995.

         From the Judgment and Order date~ 8.4.94 of the Madhya Pradesh
    High Court in Crl. A. Nos. 44 and 72 and 1991.

F        M.M. Kashyap for the Appellants.

         U.N. Bachawat, Prashant Kumar and Uma Nath Singh for the
    Respondent.

G        The following Order of the Court was delivered :

          These appeals are directed against the judgment of the High Court
    of Madhya Pradesh dated 8th April, 1994 dismissing the appeals filed by
    the appellants against their conviction a'nd sentence as recorded by the
    learned Sessions Judge on 18th January, 1991. The appellants were
H   convicted of offences under sections 364 and 302 !PC and were sentenced
                                      820
                        ASHOK YADAVv. STATEOFM.P.                             821


    to five years rigorous imprisonment and to pay a fine of Rs. 500 and in           A
    default two months simple imprisonment on the first count and to life
    imprisonment and a fine of Rs. 1,000 and in default three months simple
    imprisonment on the second count.

          The prosecution case in brief is that on 2nd September, 19~7 at
    about 9.15 p.m., Ramgovind Sharma, PW. 9 lodged a report at P.S. Jhansi B
    Road regarding the missing of his son Avadhesh Sharma who had gone to
    the school but had not returned. He gave the description and identification
    of his son in the report. After registration of the missing person report,
    Ext. P-3, an intimation was sent to the Control Room. During the
    investigation statements of various prosecution witnesses including Ram
    Bharose Bajpayee, PW. I and Rati Ram, PW. 7 were recorded. According C
    to their statements, they had seen Avadhesh alongwith the appellants near
    Ravi Shankar Hostel, Medical Tiraha. On the basis of this information, a
    search was made for the appellants. They were not found at their houses.
    A case under section 364/34 IPC was registered on 3rd September, 1987
    at I O' Clock at night. A search was started and ultimately the dead body
    of Avadesh was found between the bushes and trees in the Chattri. A D
    punchnama of the dead body was prepared and the dead body was sent for
    post-mortem examination. Dr. V.K. Deewan, P.W., conducted the post-
    mortem examination and found a number of injuries. on his person.
    According to his opinion, death of the deceased had occurred on account
    of strangulation and the injuries on his chest, which had led to failure of
    respiratory system. The appellants came to be arrested during the E
    investigation on 6th September, 1987. Gauri Shankar, appellant, is alleged
    to have made a disclosure statement which is admissible under section 27
    of the Evidence Act leading to the recovery of a watch which, according
    to the prosecution, was on the person of the deceased when he left for
    school in the morning of 2nd September, 1987. Mohan, appellant, allegedly
    made a statement admissible under section 27 of the Evidence Act leading F
    to the recovery of a pen while Veerandra, appellant, allegedly made a
    statement admissible under Section 27 of the Evidence Act leading to the
     recovery of a dot pen. No recovery was effected from Ashok, appellant.

          The recovered articles were sent to the police station for identification   G

-   and Shri B.K. Agrawal, Naib Tahsildar, PW. 11 conducted an identification
    parade in the Tehsil Office of Gwalior on 18th September, 1987. Ramgovind
    Sharma, PW.3 and his wife Saroj, PW. IO identified the seized articles as
    the ones which the deceased was carrying with him on the day of the
    occurrence. After completion of the investigation the appellants were sent
    up for trial and convicted and sentenced as already noticed.                      H
    822                      SUPREME COURT REPORTS (1996] SUPP. 8 S.C.R.


A         There is no eye witness in the case. Both the trail court and the High
    Court have relied upon the following circumstances to connect the
    appellants with the crime :-

          "(i)    motive;

B         (ii)    the deceased having been last seen in the company of the
                  accused;

          (iii)   recoveries of articles belonging to the deceased;

          (iv)    factum of absconding on the part of the deceased."
c
          Both the courts found all the circumstances to have been established
    from the evidence on the record and hold that the circumstances conclusively
    established that the appellants were guilty of the offences with which they
    had been charged.

D
         We have heard learned counsel for the parties and examined the
    record.

                                     MOTIVE

E          According to the prosecution case the motive for murder of Avadhesh
    is stated to be that the brother of Ashok Kumar, appellant, was involved in
    a hurt case by Khemraj Varon and R.ungovind Sharma, PW. 9 was a witness
    in that case. It is alleged that on I st September, 1987 i.e. a day before the
    occurrence, the appellants warned PW. 9 that he should not appear as a
    witness in Khemraj Varun's case, but since PW.9 declined to oblige the
F appellants, they kidnapped Avadhesh and committed his murder. This motive
    to our minds is much too feeble. The prosecution has not led any evidence
 · ·to ·show.as to how the other appellants were connected with Ashok appellant.
    In the report Ext. P~3, there is no mention of the alleged motive. It is not
    even mentioned in the FIR. At the trial also, PW. IO Saroj, mother of the
G deceased, improved upon her earlier version to support the statement of
    PW. 9 in this behalf. There is no other evidence on the record to prove the
    existence of motive. This circumstance, has in our opinion, not been proved
    and even otherwise, it does not appear that there was any sufficient motive
    for the appellants to commit the murder of the only son of PW. 9, only
    because PW. 9 had to appear as a witness against the brother of Ashok,
H appellant.

                                                                                     "
                   ASHOK YADA V v. STA TE OF M.P.                      823


                             RECOVERIES                                        A

       The prosecution has relied upon the recovery of watch, Ext. P-8,
Pen, Ext. P-9, and a dot pen Ext. P-12 allegedly on the disclosure statements
made by Gauri Shankar, Mohan and Veerandra, which are admissible under
Section 27 of the Evidence Act. The only witness for the recovery examined
at the trial, apart from Mahender Partap Singh, PW. 12, the Investigating B
Officer, is Parma! Singh, PW. 6 who does not belong to the locality and
who could give no satisfactory explanation for his presence at the relevant
time at the police station, where the disclosure statements were allegedly
made. The prosecution has attempted to connect the pen, Ext. P-9 and the
dot pen, Ext. P-12 which are of a common make, with the deceased on the
strength of the inscription of his name on the same. The investigating C
officer admitted in his cross-examination that the price of the pen and the
dot pen was about Rs. I or Rs. 2 in the market and the Same were easily
available. Parma! Singh, PW. 6 did not depose at the trial that when the
pens were recovered allegedly on the pointing out of the appellants Mohan
and Veerendra, they contained the name of Avadhesh inscribed on them.
That the pen and dot pen contained the inscription of the name of Avadhesh D
is a later improvement, introduced at the trial. This renders the story of
recovery of the pen and dot pen doubtful. So far as the recovery of the
watch is concerned, there is no mention about the watch in the FIR. Watch
P. 8 is a ladies wrist watch. At the trial PW. 9 tried to explain that the said
watch had been purchased by him for his wife Saroj, PW. l 0 and the E
deceased was wearing that watch on his wrist when he went to school. It
appears to be also an after thought because if that was so there was no
reason for PW. 9 not to have disclosed in the FIR that the deceased was
wearing the watch. It appears to us that the recoveries are not free from
doubt and the same appear to have been pressed into aid to buttress the
prosecution's case. The evidence of Parmal Singh, PW. 6, when considered F
in the established facts and circumstances of the case, creates a doubt
about his creditworthiness and consequently about the genuineness of the
recoveries. We are, therefore, unable to place any reliance on the recoveries
and hold that the recoveries do not connect the appellants with the crime.
                                                                               G
                             ABSCONDING

      So far as the evidence of absconding is concerned this again is wholly
discrepant and fragile. According to the prosecution case, the occurrence
took place on 2nd September, 1987. The appellants were arrested, according
to the prosecution, on 6th September, 1987, although the defence has led       H
    824                       SUPREME COURT REPORTS [1996] SUPP. 8 S.C.R.


A evidence to show that on 3rd September, 1987, one of the appellants was
    already in custody of the police. Be that as it may, the arrest of the appellants
    on 6th Sept11111ber, 1987 when the case was registered under section 364/
    34 lPC only during the night intervening 3rd/4th September, 1987, cannbt
    be considered to be such a circumstance which connects the appellants
    with the murder of the deceased and is consistent only with the hypothesis
B   of the guilt of the appellants. This circumstance also, therefore, has to be
    ruled out of consideration to connect the appellants with the offence of
    murder.

                             LAST SEEN TOGETHER

C        Ram Bharose Vajpayee, PW. 1, deposed that he saw the appellants
  alongwith the deceased on cycle near Katora Tai. Rati Ram, PW. 7, also
  deposed to having seen the deceased with the appellants near Katora Tai.
  Both the courts have relied upon the statements of P.W. 1 and P.W. 7 in
  that behalf after giving cogent reasons. So far as PW. 5 is concerned, he ·
  did not depose that he had seen the deceased with the appellant but, according
D to him he had seen the appellants outside the Chhatri on the fateful day.
  The evidence of PW. 1, PW. 5 and PW. 7 Iias been rightly relied upon by
  the courts below but the same can only go to show that the appellants had
  kidnapped the deceased on the fateful day and nothing more than that.
  The evidence of these witnesses even if accepted in their totality does not
  go to connect the appellants with the crime of murder. Indeed Avdhesh
E Kumar's death was homicidal in nature but unless the prosecution can
  establish beyond a reasonable doubt that the appellants and the appellants
  alone had committed the murder, their conviction for an offence under
  section 302 !PC cannot be sustained. The evidence led by the prosecution
  about "last seen together" cannot be said to be consistent only with. the
F hypothesis of the guilt of the appellants as regards the offence of murder
  and incapable of being explained on any other hypothesis. In our opinion
  the evidence led by the prosecution is of a conclusive nature so•far as
  kidnapping of the deceased is concerned but is inconclusive so far as the
  offence of murder is concerned. The chain of evidence is not so complete
  as to leave no doubt about the conclusion that the appellants also. committed
G the murder of Avadhesh. May be, they did but that is not enough. The
  prosecution is obliged to establish that in all human probability the accused
  alone had committed the murder. This the prosecution has failed to prove
   in this case. The conviction of the appellants for the offence under section
  302 !PC, therefore, cannot be sustained and is hereby set aside. So far as
  the conviction of the appellants for offence under Section 364 !PC is
H concerned, that too cannot be sustained because the kidnapping of the
                         ASHOK Y ADA V v. STA TE OF M.P.                     825


     deceased by the appellants cannot be said to be with the intention to commit   A
..   his murder. However, since we have accepted the evidence of PW. I, PW .
     5 and PW. 7 and partly the statement of PW. 9 and PW. 10, the prosecution
     can be said to have successfully established beyond a reasonable doubt
     that the appellants committed an offence under section 363 IPC.

            We, accordingly, while setting aside the conviction and service of      8
     the appellants for the offence under sections 302 and 364 IPC, convict
     them of the offence under section 363 IPC and sentence them to undergo
     rigorous imprisonment for five years. In case the appellants have undergone
     the sentence as imposed by us, they shall be released from custody forthwith
      if not required in any other case.
                                                                                    c
     R.P.                                                      Appeal allowed.