Ramesh Dasu Chauhan vs The State Of Maharashtra

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1682 OF 2012

Ramesh Dasu Chauhan and Another ..... APPELLANT(S) VERSUS

The State of Maharashtra .....RESPONDENT(S)

JUDGMENT

SURYA KANT, J.

The Sessions Judge, Nagpur vide judgment and order dated 26 th

February, 2003 convicted the appellants under Section 302 read with

Section 34 of the Indian Penal Code (for brevity, “the I.P.C.”) and

sentenced to undergo life imprisonment besides a fine of Rs.1,500/-

each and in default thereof they were directed to undergo Rigorous

Imprisonment for six months. They were further convicted under

Section 392 read with Section 34, I.P.C. and sentenced to undergo

Rigorous Imprisonment for three years and to pay a fine of Rs.1,000/-

Signature Not Verified each and in default thereof they were directed to undergo Rigorous Digitally signed by R NATARAJAN Date: 2019.07.04 16:24:44 IST

Reason: Imprisonment for three months.

1

2. The appellants’ conviction and sentence was upheld by a Division

Bench of the High Court of Judicature at Bombay, Nagpur Bench in

Criminal Appeal No. 272/2003, decided on 11.04.2008. Both these

judgments are under challenge in this 2nd Appeal.

BRIEF FACTS:

3. Deceased Kamlesh Kumari Trivedi, aged about 79 years used to

reside along with her daughter Rani Trivedi and grand daughter

Purnima Trivedi in Rajnigandha Apartments, Ambazari, Nagpur. Rani

Trivedi was a school teacher and used to leave home for her work

around 7.20 a.m. and return back in the evening. Purnima Trivedi was

studying in M.A. in a college and she too used to leave for her classes

at about 10.00 a.m. and return by afternoon. Deceased Kamlesh

Kumari Trivedi, thus, would remain alone in the house during the afore

stated period.

4. On the fateful day, i.e., 28th August, 2001, both Rani Trivedi and

Purnima Trivedi left for their respective destinations while Kamlesh

Kumari Trivedi was all by herself in the house. When Purnima Trivedi

returned from College around 1.30 p.m., she found her grandmother

(Kamlesh Kumari Trivedi) lying dead in the drawing room with visible

signs of strangulation. The Onida T.V. set kept in the drawing room

was found missing. Purnima Trivedi immediately rushed to her

2 neighbours Raisaheb Chourasiya and Baliram Fulari and informed

them about the incident. Both of them accompanied Purnima to the

apartment. Baliram Fulari, on the request of Chourasiya, informed the

police control room about the incident.

5. Raisaheb Chourasiya, noticed on the date of occurrence that two

young boys had come on a red coloured motorcycle; stopped it in front

of Rajnigandha Apartments; entered the apartment building and after

some time vanished from the spot. Mr. Sevakram Thaokar, Inspector of

Crime Branch, Nagpur rushed to the spot and on the basis of the

information divulged by the neighbours, he carried out search

operations and apprehended the appellants from near the Gupta Hotel

in village Hingna. On personal search of one of the suspect, some

cash amount and a silver coin was recovered; their motor cycle was

seized and Onida T.V. was also then got recovered at the instance of

first appellant (Ramesh). Crime No. 246/2001 under Section 302,

392/34 was registered. On consideration of the chargesheet, charges

under Sections 302, 392/34, I.P.C. were framed to which the appellants

pleaded not guilty and claimed trial.

6. The prosecution, in all, examined eleven witnesses to establish

the charge, but none by the defence. The appellants in their statement

under Section 313, Cr.PC, as well as in the cross-examination of

3 prosecution witnesses, pleaded absolute denial and claimed to have

been made a scapegoat by the police in order to cool the public rage

down against the heinous crime.

7. Three points fell for consideration of the Learned Sessions Judge,

namely,

(i) Whether deceased Kamlesh Kumari Trivedi died homicidal

death?

(ii) Whether the prosecution was able to prove that accused Nos. 1

and 2 in furtherance of their common intention committed murder

of Kamlesh Kumari Trivedi?

(iii) Whether the prosecution had further succeeded in proving that

accused Nos. 1 and 2, in furtherance of their common intention,

committed robbery of taking away Onida T.V., silver coin and

cash amount of Rs.200/- from the custody of deceased Kamlesh

Kumari Trivedi?

8. The Trial Court was alive to the situation that in order to prove a

criminal charge by means of circumstantial evidence, it was imperative

on the prosecution to establish beyond any doubt that – (i) the

circumstances from which the conclusion of guilt is to be drawn must

be fully established; (ii) the facts so established should be consistent

4 only with the hypothesis of the guilt of the accused; (iii) the

circumstances should be of conclusive nature and they should exclude

any possible hypothesis except the one to be proved; and (iv) the chain

of evidence should be complete leaving no reasonable ground for the

conclusion consistent with the innocence of the accused.

9. The Trial Court thereafter scrutinised the entire evidence within

the framework of cited parameters and after an elaborate

confabulation, it came to the conclusion that Kamlesh Kumari Trivedi

died a homicidal death; the appellants were duly seen entering

Rajnigandha Apartments at the most relevant time by Raisaheb

Chourasiya (P.W.9), the recovery of Onida T.V., silver coin and a part of

currency from the appellants was also a strong circumstance to nail

them, who were consequently held guilty of the offence(s) under

Sections 302 and 392 read with Section 34 of the I.P.C. and sentenced

accordingly.

10. The High Court re-evaluated the prosecution evidence in its entirety

and banking upon the statement of the star witness, Raisaheb

Chourasiya (P.W.9) coupled with the deposition made by Sevakram

Thaokar, Police Inspector, Crime Branch (P.W.11), it concurred with the

Trial Court and dimissed the appeal.

11. We have heard Mr. Ekansh Bansal, Learned Counsel for the

5 appellants and Mr. Nishant R. Katneshwarkar, Learned Counsel on

behalf of the State and gone through the record with their assistance.

12. It was vehemently urged on behalf of the appellants that no

Identification Test Parade was conducted before the Court to establish

the presence of appellants at the place of crime, even though the star

prosecution witness, Raisaheb Chourasiya (P.W.9) has acknowleged

that the two young persons who came on the red coloured motorcycle

had covered their faces with mufflers. The version of Raisaheb

Chourasiya (P.W.9) was sought to be discredited on the plea that the

appellants being in the age group of 30s, could not be roped in as

young boys of 20-25 who were allegedly noticed entering Rajnigandha

Apartments around the time when the occurrence took place. Learned

Counsel further argued that the appellants were never confronted with

the alleged stolen items for identification, more so when the panch

witnesses of alleged recovery have resiled and declared hostile. He

thus, urged that crucial links in the formation of chain of circumstantial

evidence are conspicuously missing so as to link the appellants with

the offence. The prosecution has, therefore, failed to establish its case

beyond reasonable doubt. Counsel for the State contrarily, maintained

that its a proven case against the appellants and this Court need not re-

appraise the concurrent findings returned by the two Courts.

6

13. We find that the question which falls for consideration of this

Court is whether the circumstantial evidence led in the instant case is

so unimpeachable that it establishes the guilt of the appellants beyond

the shadow of doubt.

14. The expression `circumstantial evidence’ has been the subject

matter of consideration in a catena of decisions wherein it has been

precisely defined as a combination of such facts that there is no escape

for the accused because the facts taken as a whole do not admit to any

inference but of his guilt. It has also been coined as a Complete Chain

Link Theory, putting onus on the prosecution to prove beyond

reasonable doubt, the chain of events which lead to only one

conclusion, namely, the culpability of the accused.

15. This Court in Sharad Birdhi Chand Sharda v. The State of

Maharashtra1 elaborately considered the standard of proof

necessitated for recording a conviction on the basis of circumstantial

evidence and laid down the five golden principles of standard of proof

required to be established in such a case, which are paraphrased as

follows:-

i) The circumstances from which the conclusion of guilt is to be

drawn should be fully established;

1(1984) 4 SCC 116

7

ii) The facts so established should be consistent only with the

hypothesis of the guilt of the accused, that is to say, these should

not be explainable on any other hypothesis except that the

accused is guilty;

iii) The circumstances should be conclusive in nature and tendency;

iv) They should exclude every possible hypothesis except the one to

be proved; and

v) 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 acts must have been committed by the accused.

16. These precepts have been unvaryingly reiterated by this Court

from time to time including recently in Manoj Kumar v. State of

Uttarakhand2.

17. Let us now examine whether the prosecution has successfully

established these well-known parameters in the case in hand?

18. The prosecution case foremostly hinges upon the version of

Raisaheb Chourasiya (P.W.9). He earlier made a statement under

Section 164, Cr.PC on 16.10.2001 and consistent with thereto he has

2(2019) 5 SCC 663

8 unequivocally deposed that on 28.08.2001 at around 11.45 a.m., he

was drying his hair in his apartment when two boys came on a red

coloured motorcycle of Hero Honda make, which they parked in front of

his neighbour Nag Devi’s apartment. The two boys went in the

direction of Plot No. 94-95 and he thought that they might have come to

see the house which was under construction. He, however, noticed

that the two boys opened the front gate of Rajnigandha Apartments and

went inside. Meanwhile, Raisaheb Chourasiya got a call on phone and

after attending to it for about 20 minutes, when he again looked for the

Hero Honda Motorcycle, it was not there. Both the boys were in plain

apparels and had put mufflers on their faces. He thereafter went to see

one of the neighbours and sat in the verandah of the later’s house.

After some time, Purnima Trivedi came crying and informed that her

grandmother was not speaking and she was lying in a pool of blood.

She also informed that someone had stolen their T.V. set. P.W.9 along

with Purnima and one Baliram Fulari went inside the apartment and

found that the grandmother of Purnima was lying dead and blood was

oozing out of her nose. He asked Purnima not to touch anything and

let the police come and make the enquiry. He then asked his

neighbour, Baliram Fulari to inform the police about the incident. On the

same day at about 5.30 p.m., the police brought the two boys with the

9 motorcycle to his house and he identified them as well as the

motorcycle, for there were five stickers of `sindoor’ on the mudguard of

the motorcycle and he also remembered its Registration Number.

Raisaheb Chourasiya (P.W.9) identified both the boys in Court-room

also, namely, the appellants. Pertinently, there is not even a suggestion

to the witness in his cross-examination that he was not present in his

apartment or that he did not see the appellants entering the

Rajnigandha Apartments. The only question put to the witness was

apparently to remind him that he could not recognize the boys as they

had covered their faces with mufflers, which he has categorically

denied. The witness very emphatically says in his cross-examination

that, “Incorrect to state that I have idedntified the accused except they

are before the Court”. The defence has indeed miserably failed to

cause any dent in the veracity or the capability of the witness to identify

the two boys who came on the motorcycle and entered the front gate of

Rajnigandha Apartments or his assertion that those two boys were

none else than the appellants.

19. Baliram Fulari (P.W.3) has testified that on 28 th August, 2001

around 1.30 p.m. one of his neighbours Raisaheb Chourasiya (P.W.9)

came to his house and informed about the murder of the mother of

Rani Trivedi (P.W.1) and the theft of some articles. Purnima Trivedi

10 (P.W.4) was also accompanying Raisaheb Chourasiya. He informed

the police about the incident on the request made by Raisaheb

Chourasiya and also gave registered number of the red coloured

motorcycle to the police. Baliram Fulari (P.W.3) has specifically

deposed that he informed Shri Kangle, D.C.P. of Crime Branch about

the incident. The only suggestion given in the cross-examination to

Baliram Fulari, (P.W.3) is that no information was passed on to him

either by Raisaheb Chourasiya or Purnima Trivedi. As against it, the

witness has further clarified in his cross-examination that on the same

day at about 5.30 p.m., the police brought the suspects to the place of

incident. He thus fully corroborates the testimony of Raisaheb

Chourasiya (P.W.9) and Purnima Trivedi (P.W.4) to the extent that the

police brought two boys at the place of occurrence and both of them

were seen by P.W.1, P.W.3, P.W.4 and P.W.9.

20. According to Rani Trivedi (P.W.1), she got an emergency phone

call from her daughter around 2.30 p.m. about her mother having been

assaulted and the incident of theft in their house. She immediately left

for home and saw the bloodstains on the floor; that her mother was

throttled and strangulated with her own sari and the police was present

on the scene. She found that the cupboards in the room of their

apartment were broken and the items were scattered. A silver coin of

11 `Goddess Lakshmi’ along with cash amount of Rs.200/- besides Onida

T.V. were missing. The thieves, however, could not break open the

Godrej almirah in which valuables were kept. She has indubitably

deposed that the police brought two persons in the evening to their flat

and she identified them who were present in Court as accused Nos. 1

and 2. Her statement too is totally unruffled in the cross-examination.

Rather, she has well-explained that Raisaheb Chourasiya (P.W.9) lives

in the third house in row from her house.

21. Purnima Trivedi (P.W.4), grand daughter of the deceased

chronically narrated the events which she saw after returning from

college at about 1.15 p.m. She has deposed that on reaching the flat,

she kept ringing the bell but got no response, therefore, she tried to

open the main door and pushed it due to which the pelmet fell down.

She found on entering the flat that her grandmother was lying in a pool

of blood in the drawing room. She sprinkled water on her face thinking

she might be alive. While she was looking around she found that

Onida T.V. was missing. She found that cash amount of Rs.200/- and a

silver coin were also missing from the cubboard. She immediately ran

to inform her neighbours and rushed to the house of Raisaheb

Chourasiya (P.W.9), who stayed two houses away from their apartment.

She told him about the incident. No meaningful question was asked to

12 her in the cross-examination to indicate any overcolouring in her

version.

22. We may now turn to the statement of Sevakram Thaokar

(P.W.11), the Investigating Officer-cum-Inspector of Crime Branch. He

along with the staff immediately reached at the spot i.e. Rajnigandha

Apartments on receipt of the wireless message and learnt through

Raisaheb Chourasiya (P.W.9) about two persons coming on a red

coloured motorcycle. He started searching for the suspects without any

loss of time and reached upto village Hingna where he found a red

coloured motorcycle in front of Gupta Hotel. There were two persons

with the motorcycle, who were brought to Gupta Hotel and he called

two Panchas so as to interrogate the suspects in their presence. The

two suspects, namely, the appellants were eventually arrested and a

sum of Rs.231/- and one HMT wrist watch was seized from appellant

No. 1 (Ramesh). Another sum of Rs. 142/- with silver coin and one

goggle was recovered from appellant No. 2 (Kamlesh). Their Hero

Honda Motorcycle was seized vide Ext. P-27. Appellant No. 1 also got

recovered Onida T.V. from his residence at Wana Dongri vide recovery

Ext. P-25.

23. As per the post mortem report of Kamlesh Kumari Trivedi, the

medical officer found following four ante-mortem wounds given in

13 Column 17 of the medical legal report Ext. P-17:-

“1. Ligature mark present over front of neck, below thyroid cartilage, transversely placed. Completely encircling the neck except over nape of neck at the site of plait, on both side of neck ligature marked 6 cms below tip of both mastoid processes, length of ligature mark 30 Cms, breadth, 2.5 cm. slightly grooved, dry hard.

2. Contused abrasion present over posterior aspect of right forearms 2 cm x 2 cm. reddish brown,

3. Contused abrasion present over left side of neck, 2 cm below left angle of mandible 4 cm away from middle, obliquely placed 2 cm. x 1 cm. Reddish Brown.

4. Contused abrasion present over left side of neck, 2 cm.

Lateral to injury No. 3 size 1 cm x 1 cm reddish brown.”

24. The medical officer unambiguously opined that injury No. 1 of

Column 17 along with internal damage was sufficient to cause death of

the victim in the ordinary course of nature. The cause of death was

`Asphyxia’ i.e. due to ligature strangulation.

25. From the nature of ante-mortem injuries suffered by the deceased

as described in the inquest panchnama Ext. P-12 read with the post

mortem report, it can be safely believed that the death was `homicidal’

within the meaning of Section 299 I.P.C. The medical evidence in this

regard is fully corroborated by the statement of Rani Trivedi (P.W.1),

Baliram Fulari (P.W.3), Purnima Trivedi (P.W.4) and Raisaheb

Chourasiya (P.W.9) and thus there is no room for doubt that the

deceased Kamlesh Kumari Trivedi died a homicidal death.

14

26. There is clinching evidence on record to establish that the

appellants were seen around 11.45 a.m. entering the front gate of

Rajnigandha Apartments where the deceased was residing. They left

the place after 20 minutes or so. As per the eye-witness’s account the

appellants were lastly seen nearest to the place of occurrence before

they disappeared.

27. There is no gainsaying that confession made to a police officer

cannot be proved as against a person accused of any offence and no

confession made by a person while in police custody except made in

the immediate presence of a Magistrate, can be proved against him in

view of embargo created by Sections 25 and 26 of the Evidence Act.

Section 27 of the Act nevertheless carves out an exception as it

provides that when any fact is deposed to as discovered in

consequence of information received from a person accused of any

offence while he is in police custody, “so much of such information”,

regardless of it being a confession or not, may be proved, if it relates

distinctly to the fact thereby discovered. Section 27 of the Evidence Act

thus enables the cliched use of a custodian statement made in the

ordinary course of events. The statement made by an accused while in

police custody can be split in two parts and to the extent of it being a

disclosure statement which is the immediate cause of discovering new

15 facts, would be legally admissible in evidence though the remainder of

such statement may be liable to be discarded. The Investigating

Officer, Sevakram Thaokar (P.W.11) has very emphatically deposed

that out of the stolen items, Onida T.V. set was got recovered at the

instance of the first appellant from his house. Similarly, the silver coin

and a part of the stolen currency was recovered from the second

appellant. This is not the appellants’ case that they were forced to make

the incriminating statements under any threat. They have chosen to

defend themselves only on the basis of denial. The revelation made by

the Investigating Officer to the limited extent of recovery of the stolen

items pursuant to the disclosure statements made by the appellants,

therefore, falls within the four-corners of Section 27 of the Evidence Act

and has been rightly relied upon by the Courts below.

28. True it is that the statement of a police officer has to be

scrupulously scrutinised and the Court would cautiously and

suspiciously read the same for evaluating the cumulative effect of the

entire evidence on record. If the statement of PW-11 is scanned in its

entirety, it stands out that no sooner Raisaheb Chourasiya (P.W.9) gave

the description of two young persons who came on a red coloured

motorcycle or their entry into Rajnigandha Apartments, the police

inspector swung into action and apprehended them within no loss of

16 time. The two persons, namely, the appellants were brought back to

Rajnigandha Apartments and they were duly identified by Raisaheb

Chourasiya (P.W.9). Baliram Fulari (P.W.3) and Rani Trivedi (P.W.1)

also saw and later on identified them in their depositions. Since the

appellants have not disputed their identity in the cross-examination of

Raisaheb Chourasiya (P.W.9) or of Rani Trivedi (P.W.1), it is too late for

them to allege that no Test Identification Parade was conducted.

29. It is no longer debatable that the Identification Parade of the

accused before the Court is not the main substantive piece of evidence,

rather it is corroborative in nature. [Please see: (i) Rafikul Alam v.

State of West Bengal (2007) SCC Online Cal. 728 or (2008) 1 CHN

685; (ii) Navaneethakrishnan v. State by Inspector of Police (2018)

16 SCC 161].

30. There are more than one reasons to trust P.W.9 (Raisaheb

Chourasyia). Firstly, there is no suggestion or even a whisper of any

animosity between Raisaheb Chourasyia and the appellants. He had

no motive to falsely implicate the appellants. Secondly, the presence of

the appellants coming on red coloured motorcycle and their entry to

Rajnigandha Apartments, as seen by the witness, has not been

expressly denied in his cross-examination. Thirdly, P.W.9 being

resident of the same Complex, is a natural and not a `chance’ witness.

17 Fourthly, Raisaheb Chourasiya’s version has been fully corroborated by

the other prosecution witnesses like Rani Trivedi (P.W.1), Baliram Fulari

(P.W.3) and Purnima Trivedi (P.W.4). Fifthly, he is consistent

throughout, be it may his statement under Section 164, Cr.PC and/or

deposition on oath. Sixthly, the attempt made on the character

assassination of the witness has miserably failed. We thus find no

ground to suspect P.W.9 for non-existent reasons.

31. The appellants, in all probabilities, were present in Rajnigandha

Apartments at the time of occurrence. They have failed to explain any

other reason of their presence. They have also not questioned their

identity by Raisaheb Chourasiya (P.W.9) and Rani Trivedi (P.W.1).

They have not doubted or condemned the police officer (P.W.11) of

falsely planting any recovery on them. Further, all the stolen items

recovered at the instance of the appellants have been duly identified by

Rani Trivedi (P.W.1) and Purnima Trivedi (P.W.4) as their belongings

and thus the link between the crime and the recovered items has been

conclusively established. The appellants having been lastly seen near

the scene of crime, their complete silence and/or evasive statement

under Section 313, Cr.PC, does not inspire confidence to discard the

prosecution case.

32. Both the Courts below have weighed the evidence to reach a

18 definite conclusion that the appellants and the appellants alone entered

the apartment of Kamlesh Kumari Trivedi and committed her murder by

strangulation with a motive to commit robbery in the house. There is no

factual or legal infirmity in the findings returned by the Courts below,

which may call for any interference by this Court. The Appeal is

accordingly dismissed.

………………………………………….. J.

(DEEPAK GUPTA)

…………………………… J.

(SURYA KANT) NEW DELHI DATED : 04.07.2019

19