# MANOJ SURYAVANSHI v. STATE OF CHHATTISGARH

- **Citation:** [2020] 4 S.C.R. 1
- **Court:** Supreme Court of India
- **Decided:** 2020-03-05
- **Case number:** Criminal Appeal No. 388 of 2020
- **Bench:** Uday Umesh Lalit, Indira Banerjee, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/manoj-suryavanshi-v-state-of-chhattisgarh-34427
- **Pages:** 43

## Headnote

Penal Code, 1860: ss.302, 364 - Murder of three minor
children - Case based on circumstantial evidence - Prosecution
case was that the complainant lodged missing report of his three
minor children aged about 8 years, 6 years and 4 years respectively
- During search, PW-8 stated that he saw the minor children along
with the appellant near their school - Appellant was not found in
his house and was missing even from the village - Thereafter
appellant was contacted on his mobile and he told that he was 60
Kms away - Police traced the location of mobile and found him in
the house of PW-13 - At the instance of appellant, dead bodies
along with the school bags were recovered - Conviction by courts
below - Held: Prosecution was able to prove beyond doubt that all
the three minors went to the school in the morning and thereafter
they left for the home at about 11.30 hours - That, thereafter, at
about 12.00 hours, the appellant was seen with all the three minor
children - There was a prior enmity between the appellant and the
complainant father of the deceased minor children as the wife of
the accused had eloped with the brother of the complainant-father
and the children of the accused were without their mother -
Immediately after his arrest, the dead bodies were recovered/found
along with the school bags etc. from the place shown by the accused
himself - The phone-calls made to the accused was established and
proved by the prosecution by examining the Investigating Officer
and by producing the call details from the mobile company - These
chain of events led to the conclusion that the accused first kidnapped
the three minor children and thereafter killed all of them - No
interference with the order of conviction called for.
Sentence/Sentencing: Death sentence - Conviction and death
sentence for murder of three minor children - For deciding on the
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issue of sentence, the aggravating circumstances and mitigating
circumstances must be located and the right balance must be adopted
- In the instant case, the mitigating factors/circumstances were that
the offence was committed under the influence of extreme mental or
emotional disturbance - Appellant was emotionally disturbed due
to the elopement of his wife with the uncle of the deceased and that
his children were suffering in absence of their mother; there were
no criminal antecedents; at the time of commission of the offence
the appellant was 28 years of age and his conduct in prison was
reported to be good; he belonged to a poor family and was the only
son of his parents, and his aged mother was taking care of his
daughters - On the other hand, the only aggravating circumstance
pointed out by the State was the manner in which the incident took
place and three minors were brutally killed - Except this, no other
aggravating circumstances were pointed out on behalf of the State
- Therefore, striking the balance between aggravating circumstances
and mitigating circumstances, in the facts and circumstances of the
case, more particularly, the mental condition of the appellant at the
time of the commission of the offence, the mitigating circumstances
are in favour of the accused to convert the death sentence to life
imprisonment - Thus, the death sentence converted into the life
imprisonment - It is directed that the life means till the end of the
life with the further observation and direction that there shall not
be any remission till the accused completes 25 years of imprisonment.
Evidence: Minor discrepancies and inconsistencies in
evidence - Held: The minor discrepancies and inconsistencies in
the statements of the prosecution witnesses and the minor lacuna in
the investigation led by the police cannot be a reason for discarding
the entire prosecution case, if the evidence is otherwise sufficient
and inspiring to bring home the guilt of the accused.
Code of Criminal Procedure, 1973: s.235(2) - Object and
purpose - Held: The object and

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[2020] 4 S.C.R. 1
1
MANOJ SURYAVANSHI
v.
STATE OF CHHATTISGARH
(Criminal Appeal No. 388 of 2020)
MARCH 05, 2020
[UDAY UMESH LALIT, INDIRA BANERJEE
AND M. R. SHAH, JJ.]
Penal Code, 1860: ss.302, 364 - Murder of three minor
children - Case based on circumstantial evidence - Prosecution
case was that the complainant lodged missing report of his three
minor children aged about 8 years, 6 years and 4 years respectively
- During search, PW-8 stated that he saw the minor children along
with the appellant near their school - Appellant was not found in
his house and was missing even from the village - Thereafter
appellant was contacted on his mobile and he told that he was 60
Kms away - Police traced the location of mobile and found him in
the house of PW-13 - At the instance of appellant, dead bodies
along with the school bags were recovered - Conviction by courts
below - Held: Prosecution was able to prove beyond doubt that all
the three minors went to the school in the morning and thereafter
they left for the home at about 11.30 hours - That, thereafter, at
about 12.00 hours, the appellant was seen with all the three minor
children - There was a prior enmity between the appellant and the
complainant father of the deceased minor children as the wife of
the accused had eloped with the brother of the complainant-father
and the children of the accused were without their mother -
Immediately after his arrest, the dead bodies were recovered/found
along with the school bags etc. from the place shown by the accused
himself - The phone-calls made to the accused was established and
proved by the prosecution by examining the Investigating Officer
and by producing the call details from the mobile company - These
chain of events led to the conclusion that the accused first kidnapped
the three minor children and thereafter killed all of them - No
interference with the order of conviction called for.
Sentence/Sentencing: Death sentence - Conviction and death
sentence for murder of three minor children - For deciding on the
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issue of sentence, the aggravating circumstances and mitigating
circumstances must be located and the right balance must be adopted
- In the instant case, the mitigating factors/circumstances were that
the offence was committed under the influence of extreme mental or
emotional disturbance - Appellant was emotionally disturbed due
to the elopement of his wife with the uncle of the deceased and that
his children were suffering in absence of their mother; there were
no criminal antecedents; at the time of commission of the offence
the appellant was 28 years of age and his conduct in prison was
reported to be good; he belonged to a poor family and was the only
son of his parents, and his aged mother was taking care of his
daughters - On the other hand, the only aggravating circumstance
pointed out by the State was the manner in which the incident took
place and three minors were brutally killed - Except this, no other
aggravating circumstances were pointed out on behalf of the State
- Therefore, striking the balance between aggravating circumstances
and mitigating circumstances, in the facts and circumstances of the
case, more particularly, the mental condition of the appellant at the
time of the commission of the offence, the mitigating circumstances
are in favour of the accused to convert the death sentence to life
imprisonment - Thus, the death sentence converted into the life
imprisonment - It is directed that the life means till the end of the
life with the further observation and direction that there shall not
be any remission till the accused completes 25 years of imprisonment.
Evidence: Minor discrepancies and inconsistencies in
evidence - Held: The minor discrepancies and inconsistencies in
the statements of the prosecution witnesses and the minor lacuna in
the investigation led by the police cannot be a reason for discarding
the entire prosecution case, if the evidence is otherwise sufficient
and inspiring to bring home the guilt of the accused.
Code of Criminal Procedure, 1973: s.235(2) - Object and
purpose - Held: The object and purpose of s.235(2) is that the
accused must be given an opportunity to make a representation
against the sentence to be imposed on him - Sub-section (2) of
s.235 satisfies a dual purpose; it satisfies the rule of natural justice
by affording to the accused an opportunity of being heard on the
question of sentence and at the same time helps the court to choose
the sentence to be awarded - There is no absolute proposition of
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law that in no case there can be conviction and sentence on the
same day or that if the sentence is awarded on the very same day on
which the conviction was recorded, the sentencing would be vitiated.
Partly allowing the appeal, the Court
HELD: 1.1 The prosecution has been successful in
establishing and proving that the accused was having enmity with
PW.18-father of the three deceased minor children. The same
has been established and proved by the prosecution by examining
P.W.18, P.W.20 and P.W.11. The prosecution has been successful
in proving that on 11.02.2011 all the minors deceased went to
the school from their house and at about 11.30 hours, the deceased
minors left for home on foot; that the minors did not return to
their home. On 11.02.2011 at about 12.00 noon-1.00 pm, the
deceased were seen going with the accused in school uniform
with their school bags. Therefore, the accused was last seen
together with the deceased minors. [Para 16][26-D-F]
1.2 The next important evidence against the accused is the
recovery of dead bodies which were found from the places shown
by the accused after his arrest. During the course of the
investigation, the dead bodies were found from the places shown
by the accused, the places which the accused alone could have
known. Therefore, there is a recovery of the dead bodies along
with the school dress and bags at the instance of the accused. It
has been established and proved from the disclosure memo.
Therefore, the said circumstance definitely goes against the
accused. [Para 18][28-D-E]
1.3 One another circumstance which goes against the
accused is that after the incident of missing of three minor
children, the accused was not found in his house and even in the
village. Phone calls made at 11.00 pm on the mobile of the accused
in the night of 11.02.2011 has been established and proved by
the prosecution by producing the call details from the mobile
company. The accused has failed to give any explanation on the
same in his statement under Section 313 Cr.P.C. Non-examination
of the officer of the mobile company cannot be said to be fatal to
the case of the prosecution, more particularly, when the CDR
MANOJ SURYAVANSHI v. STATE OF CHHATTISGARH
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has been got exhibited, through the deposition of the Investigating
Officer and when the same was exhibited, no objection was raised
on behalf of the defence. Even otherwise, the mobile SIM was
seized from the accused at the time of his arrest. Therefore, the
prosecution has proved that the said mobile SIM belonged to
the accused. [Paras 19, 19.1][28-E; 29-A-C]
1.4 One other important evidence against the accused is
the deposition of P.W.13. The fact that the accused was found
from the house of P.W.13 has been established and proved, despite
P.W.13 has turned hostile. As per the settled proposition of law,
even the deposition of the hostile witness to the extent it supports
the case of the prosecution can be relied upon. The accused has
failed to explain his conduct in his statement under Section 313
Cr.P.C. about his missing from the house and even the village
after the incident of kidnapping. He has also failed to explain the
reason why he was found from the house of P.W.13. It may be
that there is some doubt created by the defence about the place
where the accused was arrested. However, the fact remains that
the accused was arrested from village Lakharam on 13.02.2011.
Immediately thereafter, during the course of the investigation
and as per the disclosure memo, the dead bodies of the deceased
minor children were recovered at the instance of the accused.
[Para 20][29-D, F-H; 30-A-B]
2. Minor embellishment, there may be, but variations by
reason therefore should not render the evidence unbelievable.
Trivial discrepancies ought not to obliterate an otherwise
acceptable evidence. The Court shall have to bear in mind that
different witnesses react differently under different situations:
whereas some become speechless; some start wailing while some
others run away from the scene and some who may come forward
with courage, conviction and belief that the wrong should be
remedied. There cannot be any set pattern or uniform rule of
human reaction and to discard a piece of evidence on the ground
of his reaction not falling within a set pattern is unproductive.
Therefore, the so-called minor discrepancies/contradictions do
not ultimately affect the case of the prosecution. The benefit of
such minor discrepancies/ contradictions should not go to the
accused, more particularly, when from the other evidences on
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record the guilt of the accused has been established and proved.
[Para 21][31-C-F]
Leema Ram v. State of Haryana AIR 1999 SC 3717 :
[1999] 3 Suppl. SCR 435 - relied on.
3. The object and purpose of Section 235(2) Cr.P.C. is that
the accused must be given an opportunity to make a representation
against the sentence to be imposed on him. Sub-section (2) of
Section 235 satisfies a dual purpose; it satisfies the rule of natural
justice by affording to the accused an opportunity of being heard
on the question of sentence and at the same time helps the court
to choose the sentence to be awarded. There is no absolute
proposition of law that in no case there can be conviction and
sentence on the same day. There is sufficient compliance of the
provisions of Section 235(2) Cr.P.C. The Trial Court heard the
accused on the aspect of proposition of sentence separately. The
Trial Court had considered the mitigating circumstances pointed
out on behalf of the accused and also considered the aggravating
circumstances which warranted the death sentence. Thus, it cannot
be said that the accused was not given any sufficient opportunity
to put forward his case on sentence. It also cannot be said that
the Trial Court has not given any special reasons while awarding
the death sentence. [Paras 23, 23.3][32-B-C; 34-G; 35-A-B]
Accused 'X' v. State of Maharashtra (2019) 7 SCC 1;
Machhi Singh v. State of Punjab (1983) 3 SCC 470 :
[1983] 3 SCR 413 - relied on.
Santa Singh v. State of Punjab (1976) 4 SCC 190 :
[1977] 1 SCR 229; Allaudin Mian v. State of Bihar
(1989) 3 SCC 5 : [1989] 2 SCR 498 - held inapplicable.
4.1 While awarding the capital punishment, it appears that
the brutality of the crime was considered to be one of the reasons
and not the sole reason. For deciding on the issue of sentence,
the aggravating circumstances and mitigating circumstances must
be located and the right balance must be adopted. In the present
case, the following are the mitigating factors/circumstances: (i)
That the offence was committed under the influence of extreme
mental or emotional disturbance. The accused was emotionally
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disturbed due to the elopement of his wife with the uncle of the
deceased and that his children were suffering in absence of their
mother with them. The accused was so much disturbed and
troubled is also born out from the deposition of one of the
witnesses that on mobile the accused told how father of the
missing children is feeling without his children. (ii) There are no
criminal antecedents. (iii) At the time of commission of the offence
the accused was 28 years of age and his conduct in prison is
reported to be good. (iv) That he belongs to a poor family and is
the only son of his parents, and (v) That he has got an old aged
mother who is taking care of two daughters of the accused, out of
which one is married now. [Paras 24, 25.4, 25.5][37-B-C; 40-G;
41-F-H; 42-A]
4.2 On the other hand, the only aggravating circumstance
pointed out by the State is that the manner in which the incident
took place and three minors were brutally killed. Except the
above, no other aggravating circumstances are pointed out on
behalf of the State. Therefore, striking the balance between
aggravating circumstances and mitigating circumstances, in the
facts and circumstances of the case, more particularly, the mental
condition of the accused at the time of the commission of the
offence and that the accused was under extreme mental
disturbance due to his wife eloped with the uncle of the deceased
and his children were deprived of the company of their mother,
the mitigating circumstances are in favour of the accused to
convert the death sentence to life imprisonment. It is true that
the court must respond to the cry of the society and to settle
what would be the deterrent punishment for an abominable crime.
It is also equally true that a larger number of criminals go
unpunished thereby increasing criminals in the society and law
losing its deterrent effect. It is also true that the peculiar
circumstances of a given case often results in miscarriage of justice
and makes the justice delivery system a suspect; in the ultimate
analysis, the society suffers and a criminal get encouraged. The
mitigating circumstances as observed by this Court in the case
of Bachan Singh and the mitigating circumstances in the present
case, if are considered cumulatively and more particularly, that
the accused was under the extreme mental disturbance, in the
peculiar facts and circumstances of the case, the death penalty is
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not warranted and the same be converted to life imprisonment.
The Judgment and Order convicting the accused for the offences
punishable under Sections 302 and 364 IPC is hereby confirmed.
However, the death sentence imposed by the Trial Court,
confirmed by the High Court, is converted into the life
imprisonment. It is further observed and directed that the life
means till the end of the life with the further observation and
direction that there shall not be any remission till the accused
completes 25 years of imprisonment. [Paras 25.6, 26][42-B-G;
43-B]
Bachan Singh v. State of Punjab (1980) 2 SCC 684;
Sushil Sharma v. State (NCT) of Delhi (2014) 4 SCC
317 : [2013] 16 SCR 616; Absar Alam v. State of Bihar
(2012) 2 SCC 728 : [2012] 1 SCR 890 - relied on.
Mohd. Chaman v. State (NCT of Delhi) (2001) 2 SCC
28; Aloke Nath Dutta v. State of W.B. (2007) 12 SCC
230 : [2006] 10 Suppl. SCR 662; State of Punjab v.
Manjit Singh (2009) 14 SCC 31 : [2009] 9 SCR 864;
Santosh Kumar Satishbhushan Bariyar v. State of
Maharashtra (2009) 6 SCC 498 : [2009] 9 SCR 90;
Sebastian v. State of Kerala (2010) 1 SCC 58; Ramesh
v. State of Rajasthan (2011) 3 SCC 685 : [2011] 4 SCR
585; Mohinder Singh v. State of Punjab (2013) 3 SCC
294 : [2013] 3 SCR 90; Digamber Vaishnav v. State of
Chhattisgarh (2019) 4 SCC 522 : [2019] 2 SCR 844;
Anjan Kumar Sarma v. State of Assam (2017) 14 SCC
359 : [2017] SCR 991; Ganpat Singh v. State of
Madhya Pradesh (2017) 16 SCC 353 : [2017] 9 SCR
706; Chhannu Lal Verma v. State of Chhattisgarh (2019)
12 SCC 438 : [2018] 14 SCR 355; Rajesh Kumar v.
State (NCT of Delhi) (2011) 13 SCC 706 : [2011] SCR
92; Ajay Pandit @ Jagdish v. State of Maharashtra
(2012) 8 SCC 43 : [2012] 10 SCR 70; Gurvail Singh v.
State of Punjab (2013) 2 SCC 713 : [2013] 1 SCR 783;
Amit v. State of Uttar Pradesh (2012) 4 SCC 107 :
[2012] 1 SCR 1009; Kalu Ram v. State of Rajasthan
(2015) 16 SCC 492; Sudam v. State of Maharashtra
(2019) 9 SCC 388; Baba Vishwakarma v. State of M.P.
MANOJ SURYAVANSHI v. STATE OF CHHATTISGARH
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(2019) 9 SCC 689; Shaikh Ayub v. State of Maharashtra
(1998) 9 SCC 521; Dharmedrasinh v. State of Gujarat
(2002) 4 SCC 679: [2002] 3 SCR 193; Nemu Ram Bora
v. State of Assam & Nagaland (1975) 1 SCC 318;
Brajendra Singh v. State of M.P. (2012) 4 SCC 289 :
[2012] 3 SCR 599 - referred to.
Case Law Reference
[2019] 2 SCR 844
referred to
Para 5.8
[2017] SCR 991
referred to
Para 5.8
[2017] 9 SCR 706
referred to
Para 5.8
[2018] 14 SCR 355
referred to
Para 7.1
[1977] 1 SCR 229
held inapplicable
Para 7.1
[2011] SCR 92
referred to
Para 7.1
[2012] 10 SCR 70
referred to
Para 7.1
(1980) 2 SCC 684
relied on
Para 7.2
[2013] 1 SCR 783
referred to
Para 7.4
[2012] 1 SCR 1009
referred to
Para 7.5
(2015) 16 SCC 492
referred to
Para 7.5
(2019) 9 SCC 388
referred to
Para 7.5
(2019) 9 SCC 689
referred to
Para 7.5
(1998) 9 SCC 521
referred to
Para 7.9
[1989] 2 SCR 498
held inapplicable
Para 7.9
[2002] 3 SCR 193
referred to
Para 7.9
(1975) 1 SCC 318
referred to
Para 7.9
[2012] 3 SCR 599
referred to
Para 7.9
[1999] 3 Suppl. SCR 435
relied on
Para 21
(2019) 7 SCC 1
referred to
Para 22
[1983] 3 SCR 413
referred to
Para 25.2
(2001) 2 SCC 28
referred to
Para 25.2
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[2006] 10 Suppl. SCR 662
referred to
Para 25.2
[2009] 9 SCR 864
referred to
Para 25.2
[2009] 9 SCR 90
referred to
Para 25.2
(2010) 1 SCC 58
referred to
Para 25.2
[2011] 4 SCR 585
referred to
Para 25.2
[2013] 3 SCR 90
referred to
Para 25.2
[2013] 16 SCR 616
relied on
Para 25.2
[2012] 1 SCR 890
relied on
Para 25.3
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
388 of 2020.
From the Judgment and Order dated 08.08.2013 of the High Court
of Chhattisgarh at Bilaspur in Criminal Appeal No. 550 of 2013.
Shri Singh, Ms. Maneka Khanna, Amartya Kanjilal and Abhimanue
Shrestha, Advs. for the Appellant.
Pranav Sachdeva, Ms. Neha Rathi and Jatin Bhardwaj, Advs. for
the Respondent.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Leave granted.
2. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 08.08.2013 passed by the Division Bench of the High
Court of Chhatisgarh at Bilaspur in Criminal Appeal No. 550 of 2013
and Criminal Reference No. 05 of 2013, by which the Division Bench of
the High Court has dismissed the said appeal preferred by the appellantoriginal accused and has confirmed the judgment and order of conviction
and death sentence awarded by the learned Trial Court for the offences
punishable under Section 302 of the IPC for having killed the three minor
children of the complainant Shivlal - P.W.18 and also for the offences
punishable under Section 364 of the IPC, the original accused has
preferred the present appeal.
3. As per the case of the prosecution, at 7.00 AM on 11.02.2011,
two sons of one Shivlal-original complainant - Vijay aged about 8 years,
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Ajay aged about 6 years and Kumari Sakshi aged about 4 years left
their home in Darripara to attend the school at Karaihapara and reached
the school. On the school getting over at 11.30 AM, the three minors left
the school for home on foot. When they did not reach home, ShivlalP.W.18 looked for the children in the vicinity and went to school and
enquired about the children. On enquiry at the school, the teachers of
the minor children told Shivlal that the three minors had come to the
school and on the school getting over they had left the school for home
on foot. That, thereafter Shivlal and others looked for the three minors.
On not finding the three minor children, Shivlal-P.W.18 went to the police
station, Raipur and lodged the Missing Person Report. The missing person
report was registered in the Daily Journal (Ex. P-18) by the Head
Constable Krishna Kumar Koshle-P.W.17. During the search of three
minor children, one Ashok Patel-P.W.8 stated that he had seen the minor
children along with the appellant-accused near the school. As per the
case of the prosecution, on 11.02.2011, Rameshwar-P.W.11 contacted
the accused on cell-phone and talked with him and the accused asked
Shivlal-P.W.18 how he was feeling when his children are missing.
According to the prosecution, the accused was working as labourer in
the house of Shivlal. It was alleged that the wife of the accused, namely
Sumrit Bai, eloped with the younger brother of the complainant, namely
Shivnath Dhiwar and with the view to take revenge, the appellant abducted
the minors and thereafter killed them. The FIR-Ex.24 was lodged against
the accused initially for the offences under Sections 363 and 364 IPC.
According to the prosecution, after the FIR was lodged, the accused
was contacted on his mobile no. 9179484724. The accused received the
call and told that he was 60 kms away. The Investigating Officer-P.W.24
asked the Head Constable Hemant Aditya, Crime Branch to trace the
said mobile number and to tell its location. Then the Head Constable
Hemant Aditya traced the location of the said mobile and the location
was found near Village Lakhram. That, thereafter the Investigating team
went to the house of one Ashok Kumar Madhukar-P.W.13, a relative of
the accused. Initially, the accused was not in home. However, thereafter
continuing the search, they again went to the house of the said Ashok
Kumar Madhukar. According to the case of the prosecution, thereafter
the accused was found and brought to the police station. He was
interrogated in the presence of the witnesses. A memorandum of
statement Ex.P.2 was recorded under Section 20 of the Evidence Act.
On the basis of the memorandum Ex.P.2 and at the instance of the
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accused, in the barren land in Karaihapara - in the field of one Damodar
Beldar, the dead bodies of the three minors were recovered from the
spot of site. The Investigating Officer collected the incriminating materials
during the course of the investigation. The mobile of the accused was
also seized. The Investigating Officer conducted the Panchnama of the
dead bodies of the three minors. The dead bodies were sent for postmortem. One Dr. A.M. Srivastava-P.W.23 conducted the post-mortem.
The cause of death of the three minors was strangulation and the deaths
were found to be homicidal. During the investigation, the Investigating
Officer received the call details - Ex.P.30 of the mobile phone of the
accused. During the investigation, the Investigating Officer recorded
the statement of the witnesses, including the statement of the original
complainant Shivlal and others. That the accused was arrested as per
the memorandum dated 13.02.2011. After conclusion of the investigation,
it was found that the accused had first abducted and thereafter killed the
three minors to take the revenge as his wife eloped with the brother of
the complainant Shivlal and thereby committing the offences punishable
under Section 302 and Section 364 IPC. The Investigating Officer filed
the charge-sheet against the accused for the aforesaid offences. The
case was committed to the Court of Sessions. The accused pleaded not
guilty and therefore he came to be tried for the aforesaid offences.
4. To prove the charges against the accused, the prosecution
examined as many as 24 witnesses as under:
P.W. NO.
NAME AND DATE OF
DEPOSITION
P.W.1
Preetam Dhiwar
15.06.2011
Witness who seen the minor
children with the accused for
the last time.
P.W.2
Hafiz Ali
16.06.2011
Independent witness
P.W.3
Frukh Khan
16.06.2011
Independent witness
P.W.4
Pooja Tiwari
16.06.2011
Witness of minors leaving the
school together for home on
foot after the school getting
over.
P.W.5
Jilani Baig
17.06.2011
Witness of minors leaving the
school together for home on
foot after the school getting
over.
P.W.6
Krishna Kumar Yadav
17.06.2011
Witness of seizure of Registers
concerning the attendance of
the minors in school.
MANOJ SURYAVANSHI v. STATE OF CHHATTISGARH
[M. R. SHAH, J.]
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P.W.7
Damodar Singh
08.08.2011
Witness
of
recording
the
statements of the
prosecution
witnesses
under
Section
161
Cr.P.C.
P.W.8
Ashok Patel
08.08.2011
Witness who seen the minor
children with the accused for the
last time.
P.W.9
Imrat Singh
11.08.2011
Maternal uncle of the minor
children.
P.W.10
Shweta Tiwari
12.08.2011
Witness of minors leaving the
school together for home on foot
after the school getting over.
P.W.11
Rameshwar
12.08.2011
Independent witness
P.W.12
Ashish Kumar Gupta
20.9.2011
Witness
who
conducted
the
photography of the dead bodies of
the minors.
P.W.13
Ashok Kumar Madhukar
20.09.2011
Witness of the presence of the
accused in his house situated in
Lakhram and of his being hidden.
P.W.14
Bharat Lal Dewangan
21.09.2011
Witness of the preparation of map
of the spot of incident.
P.W.15
Anil Shitlani
21.09.2011
Witness of seizure of mobile
phone of the accused.
P.W.16
Bharat Lal Chandravansi
22.09.2011
Witness of the dead bodies of the
minors being taken to the doctor
for post-mortem
P.W.17
Krishna Kumar Koshle
22.09.2011
The
Head-Constable
who
registered the missing report in
the Daily Journal
P.W.18
Shivlal Dhimar
16.11.2011
Father of the minor children.
P.W.19
Santosh Kumar Yadav
17.11.2011
Witness
of
recording
of
statements during investigation of
missing report.
P.W.20
|Smit Manisha Dhimar
17.11.2011
Mother of the deceased minor
children.
P.W.21
Dr. A.K. Shrivastava
18.11.2011
Doctor who conducted the postmortem and
gave
the
postmortem report.
P.W.22
Lav Kush Kashyap
09.01.2012
Witness
of
recording
the
statements of the
prosecution
witnesses
under
Section
161
Cr.P.C.
P.W.23
Dr. A.M. Srivastava
17.02.2012
Doctor who conducted the postmortem and
gave
the
postmortem report.
P.W.24
B. Kujur
17.02.2012
The Investigating Officer
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4.1 During the trial, the prosecution brought on record as many as
41 documentary evidences. The relevant evidences are as under:
SL. NO.
DESCRIPTION
EX. NO.
4.
Seizure Memo of the attendance register of the deceased dated
17.02.2011 at 3.30 pm
Ex.P1
5.
Memorandum of accused dated 13.02.2011
Ex.P2
8.
Seizure memo of school bags, plastic bottle and soil from where
Ajay's body has been found.
Ex.P5
10.
Inquest / Panchnama of deceased Ajay
Ex.P7
12.
Inquest / Panchnama of deceased Vijay
Ex.P9
14.
Inquest / Panchnama of deceased Sakshi
Ex.P11
18.
Site Map prepared by Patwari
Ex.P12
19.
Panchnama of Site Map in presence of witnesses
Ex.P13
20.
Seizure Memo of mobile phone of accused
Ex.P14
23.
Missing Person Complaint dated 12.02.2011 filed by PW18,
Shivlal
Ex.P16
24.
Roznamcha
Ex.18C
31.
FIR No. 64/2011 under Section 363, 364 IPC registered by PS
Ratanpur
Ex.P25
34.
Arrest Memo dated 13.02.2011
Ex.P28
35.
Intimation of arrest of relative
Ex.P29
36.
CDR
Ex. P30
39.
Report received from FSL Raipur
Ex.P33
41
Village Map
Art. A
4.2 After closure of the evidence by the prosecution, further
statement of the accused under Section 313 CrPC was recorded. The
case of the accused was of a total denial. He did not examine any witness
in support of his defence. That, thereafter, on appreciation of evidence
and giving the fullest opportunity to the accused, the learned Trial Court
held the accused guilty for the offences punishable under Sections 302
and 364 IPC. After considering the aggravating and mitigating
circumstances and after having heard the accused on the quantum of
sentence, the learned Trial Court awarded the death sentence, which
was numbered as Reference No. 05 of 2013 before the High Court.
Feeling aggrieved and dissatisfied with the judgment and order of
conviction passed by the learned Trial Court, the original accused also
preferred an appeal before the High Court, being Criminal Appeal No.
550 of 2013. Both, the appeal preferred by the accused as well as the
reference case were heard together by the High Court. By the impugned
judgment and order, the High Court has dismissed the appeal preferred
by the accused and has confirmed the conviction and the death sentence
awarded by the learned Trial Court. Feeling aggrieved and dissatisfied
with the impugned judgment and order passed by the High Court in
dismissing the appeal preferred by the accused and also confirming the
death sentence awarded by the learned Trial Court, the original accused
has preferred the present appeal.
MANOJ SURYAVANSHI v. STATE OF CHHATTISGARH
[M. R. SHAH, J.]
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5. Shri Singh, learned counsel appearing on behalf of the appellantoriginal accused has vehemently submitted that in the facts and
circumstances of the case both, the learned Trial Court and the High
Court have committed grave error in holding the appellant-original
accused guilty for the offences punishable for the offences under Section
302 and Section 364 IPC.
5.1 It is further submitted on behalf of the appellant-original
accused that both the Courts below ought to have appreciated that there
was no eye-witness to the incident and the whole conviction was based
on the circumstantial evidence. It is submitted that, in a case of
circumstantial evidence, unless the entire chain of events is complete,
which leads to the only conclusion that it is the accused only who has
committed the offence, a person cannot be convicted. It is submitted
that in the present case the prosecution has failed to form a complete
chain of circumstances and the instance which leads exclusively to the
conclusion that the appellant only was guilty of committing the offence.
5.2 It is further submitted on behalf of the appellant-original
accused that both the Courts below have materially erred in holding the
appellant-original accused guilty for the offences punishable under
Sections 302 and Section 364 IPC for having killed the three minor children
relying upon the prosecution witnesses, more particularly, P.W.1, P.W.8,
P.W.13, P.W.18 and P.W.24 and other eye-witnesses.
5.3 It is further submitted by the learned counsel appearing on
behalf of the appellant-original accused that the case against the appellant
is based on three sets of circumstances: (i) last seen evidence; (ii)
recovery of bodies pursuant to a disclosure memo and (iii) alleged calls
made to the appellant during the search for the missing children. It is
further submitted that the prosecution has sought to use the calls made
to the appellant and the testimony of P.W.13 as an extra-judicial
confession made by the appellant. It is submitted that such an extrajudicial concession is not admissible in law.
5.4 It is further submitted by the learned counsel appearing on
behalf of the appellant-original accused that to establish and prove the
last seen evidence, the prosecution has relied upon the depositions of
P.W.1 and P.W.8, whose evidences are full of material contradictions.
It is submitted that as such both the Courts below have materially erred
in heavily relying upon the depositions of P.W.1 and P.W.8, insofar as
last seen evidence is concerned.
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5.5 It is further submitted by the learned counsel appearing on
behalf of the appellant-original accused that so far as P.W.1 is concerned,
he has specifically stated that he was stating the material evidence for
the first time in the court. It is submitted that though another witness -
Surya Pratap Dhimar was present with P.W.1 on 11.02.2011, the
prosecution had chosen not to examine the said witness. It is submitted
that P.W.1 is neither credible nor reliable. It is submitted that dropping of
a cited witness Surya Pratap Dhimar has been unexplained by the
prosecution. It is submitted that this circumstance will operate as a
presumption against the prosecution in terms of Section 114(g) of the
Indian Evidence Act.
5.6 Now, so far as the reliance placed upon the deposition of
P.W.8, who is the second last seen witness is concerned, it is submitted
that P.W.8 states that he communicated that he has seen the accused
with the deceased to P.W.9-Imrat Singh @ Mungi Lal. It is submitted
that, however, P.W.9 has categorically denied knowing any person named
as Ashok, where he resides. It is submitted that he has affirmed that he
had no conversation with Ashok.
It is further submitted that as per the prosecution P.W.8
communicated his sighting of the missing children to P.W.18 and his
friends - P.W.2 and P.W.3. It is submitted that P.W.2 states that they
met Ashok Patel at about 6/6.30 pm near Dholpara, but in his cross, has
denied knowing Ashok Patel or having any conversation with him. It is
submitted that P.W.18 claimed that he met P.W.8 near Darriparra prior
to meeting P.W.2 and P.W.3. It is submitted that though P.W.3 maintains
that he met P.W.8 and Dholpara, the testimony of P.W.18 belies the
testimony of P.W.3. It is submitted that the testimony of P.W.2, P.W.3
and P.W.18 that they met P.W.8 is belied by P.W.8 himself who has
unequivocally affirmed that P.W.18 and his friends did not come to him
searching for the children. It is submitted that therefore it is not safe to
rely the testimony of P.W.8 also.
5.7 It is further submitted by the learned counsel appearing on
behalf of the appellant-original accused that the prosecution has not
proved geographical proximity between the alleged sighting of the
appellant and the place of residence of the children; their school or the
location where the bodies were recovered. It is submitted that there is
no evidence on record to suggest that the fields where the bodies were
found were in the same direction as the children were walking when
they had been allegedly sighted.
MANOJ SURYAVANSHI v. STATE OF CHHATTISGARH
[M. R. SHAH, J.]
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5.8 It is further submitted that furthermore the medical evidence
concludes that the time of death of the children was between 12 noon on
11.02.2011 and midnight of the intervening night of 11/12.02.2011. It is
submitted that therefore an alleged sighting in the beginning of this period
is not proximate to the time of death. It is further submitted that even the
missing person complaint dated 11.02.2011 does not refer to last seen
evidence. It is submitted that it was entered on the Roznamcha at 9.40
am on 12.02.2011. It is submitted that the Roznamcha is silent on the
suspicion of kidnapping by the appellant. It is submitted that neither the
complaint nor the Roznamcha contain any last seen evidence or evidence
with respect to the alleged calls between the appellant and P.W.18. It is
submitted that the FIR that is lodged on 12.02.2011 at 11.40 pm has a
mention of P.W.8. It is submitted that therefore the last seen evidence of
P.W.8 is recorded for the first time only on the intervening of
12-13.02.2011, which is also the time of the appellant's arrest. It is
submitted that it is the settled law that the circumstance of last seen
together cannot by itself form the basis of conviction and can only be an
incriminating circumstance. In support thereof, the learned counsel for
the appellant has relied upon the decisions of this Court in the cases of
Digamber Vaishnav v. State of Chhattisgarh (2019) 4 SCC 522, Anjan
Kumar Sarma v. State of Assam (2017) 14 SCC 359 and Ganpat
Singh v. State of Madhya Pradesh (2017) 16 SCC 353. It is submitted
that in light of the principles stated in the aforesaid decisions, the testimony
of P.W.8 does not inspire confidence and cannot be relied upon as last
seen evidence.
5.9 It is further submitted by the learned counsel appearing on
behalf of the appellant that another circumstances considered by the
Courts below against the appellant is the calls and extra-judicial
confession.
5.10 It is submitted that the evidence against the appellant refers
to two calls involving the appellant. The first call is between the appellant
and P.W.11 and the second call is between the appellant and P.W.18. It
is submitted that with respect to P.W.11's call, P.W.11 categorically states
that the call was on 12.02.2011 at night which is when the appellant was
in the custody of the police. It is submitted that he further improved his
version when he was re-examined by the Trial Court. It is submitted that
neither P.W.2 nor P.W.18 has testified to this call. It is submitted that
neither the fact nor the contents of this call were put to the appellant
during his examination under Section 313 Cr.P.C.
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5.11 It is further submitted that the prosecution has relied upon
the extracts of the appellant's CDR-Ex.P30 (Call Details Report), which
does not contain any call made or received on 12.02.2011. It is submitted
that even otherwise the production of CDR is through the Investigating
Officer who in turn receives it from the Head Constable Hemant Aditya.
It is submitted that there is no material on record to show the manner in
which the CDR was obtained. It is submitted that even the CDR is not
accompanied by a certificate under Section 65-B of the Evidence Act.
It is submitted that therefore the calls/call details contained in the CDREx.P30 are neither believable nor has been proved by the prosecution.
5.12 It is further submitted that so far as P.W.18 is concerned, he
has alleged a call made by him to the appellant on 11.2.2011. It is submitted
that the said call has not been corroborated by any other witness. It is
submitted that even it does not find mention in the complaint, Roznamcha
or the FIR, which are dated 11.2.2011. It is submitted that there remains
a discrepancy in P.W.18's version of when he lodged the missing person
complaint.
5.13 It is further submitted that the prosecution has not seized the
phone, SIM card or any material with respect to P.W.18's phone records
which would have proved the veracity of P.W.18's statement. It is
submitted that even there is no material on record to prove the phone
number of P.W.18.
5.14 It is further submitted that so far as the confession made by
P.W.13-Ashok Kumar Madhukar is concerned, no other document or
witness mentions his presence during the alleged recovery proceedings.
It is submitted that the statement made by the appellant do not amount to
a confession of the offence as a whole, or of any inculpatory fact. It is
submitted that since the appellant was in police custody at that time, any
confession made by him would be inadmissible in terms of Section 26 of
the Evidence Act, irrespective of whom the alleged confession was made
to. It is submitted that therefore both, the Trial Court and the High Court
have materially erred in convicting the appellant on the basis of such call
details and/or the alleged confessions made to the respective witnesses.
6. Now, so far as the conviction based upon the recovery of dead
bodies of the deceased minors is concerned, it is submitted that the said
recovery was made from an open area that had been searched previously.
It is submitted that as per the settled preposition of law the recovery
MANOJ SURYAVANSHI v. STATE OF CHHATTISGARH
[M. R. SHAH, J.]
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made from an open place, accessible to all and which is not in the
exclusive knowledge of the accused cannot be the basis of conviction.
It is submitted that therefore the recovery of the bodies at the instance
of the appellant is full of suspicion.
6.1 It is further submitted that neither PW.7 nor P.W.22 who are
the independent witnesses to the disclosure memorandum and all other
documents relating to recovery proceedings on the intervening night of
11.01.2011 and 12.1.2011, lend support to the recovery. It is submitted
that P.W.7 has specifically stated that he signed on blank papers on the
asking of the police and that he did not know about the case.