Madhya Pradesh High Court
Sonu @ Mukesh & Ors. vs The State Of Madhya Pradesh on 4 August, 2021
Author: Atul Sreedharan
1
Cri.A.No.1489/05 & Cr.A No.1648/05
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
(DIVISION BENCH : HON'BLE SHRI JUSTICE ATUL SREEDHARAN
HON'BLE SMT JUSTICE SUNITA YADAV)
Criminal Appeal No. 1489/2005
Laxmi Bai
Vs.
State of Madhya Pradesh
Shri Abhay Gupta, Advocate has been appointed as Amicus Curiae for the
appellant-accused.
Shri Piyush Bhatnagar, learned Panel Lawyer for the respondent-State.
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Criminal Appeal No. 1648/2005
Sonu @ Mukesh & two others
Vs.
State of Madhya Pradesh
Shri H.R Naidu, learned counsel for the appellant no.1.
Shri Abhay Gupta, Advocate has been appointed as Amicus Curiae for the
appellant no.3.
Shri Piyush Bhatnagar, learned Panel Lawyer for the respondent-State.
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Whether approved for reporting : (Yes / No).
JUDGMENT
(Delivered on 04/08/2021)
Per Sunita Yadav, J :
This judgment shall govern the disposal of aforesaid both
criminal appeals, as they arise out of the common judgment dated
20/07/2005 passed by IInd Additional Session Judge, Hoshangabad in
Session Trial No. 108/1999 whereby the appellant/ accused Laxmi Bai in
Cr.A.No.1489/2005 has been convicted under Sections 120-B of IPC and
Cri.A.No.1489/05 & Cr.A No.1648/05
sentenced to undergo life imprisonment and fine of Rs.500/-; in default
of payment of fine, further 3 months additional imprisonment and
appellants Sonu @ Mukesh, Manish @ Gabbar (since deceased) and
Sudhir in Cr.A No. 1648/2005 have been convicted under Section 302/34
of IPC and sentenced them to undergo life imprisonment and fine of
Rs.500/-each; in default of payment of fine, further 3 months additional
rigorous imprisonment.
2. During the pendency of both appeals, appellant no.2 Manish
@ Gabbar in Criminal Appeal No.1648/2005 has died, therefore, the
appeal so far as it relates to appellant-Manish @ Gabbar is concerned,
was abated by this Court by order dated 29.10.2014.
3. For the sake of convenience in these appeals, the appellants
are referred as accused persons and the respondent as prosecution.
4. The prosecution case, in short, is that on 22/04/1997 a dead
body was found near village Gortalai. The body could not be identified
at that time. However, the postmortem was conducted by Dr.Jiyauddin
(PW-2), who found multiple injuries on the dead body. As per Dr.
Jiyauddin's opinion, the cause of death was excessive bleeding due to
ante-mortem injuries. After almost one and half year the accused Laxmi
Bai, who is a School Teacher lodged a report (Ex.P-77) on 13/07/1998 in
which she complained that co-accused Sonu @ Mukesh and his
associates were extorting money from her. On receiving the said report,
the police interrogated the accused Laxmi Bai and recorded her
Cri.A.No.1489/05 & Cr.A No.1648/05
memorandum (Ex.P-50 and Ex.P-54). At the instance of accused Laxmi
Bai, documents pertaining to some agreement to pay Rs.40,000/- by her
to co-accused were recovered from her possession. During the course of
investigation, accused Manish @ Gabbar gave the memorandum
(Ex.P-45) offering to discover a film from the shop of photographer
Motilal, (PW-11). It is alleged that the said film was recovered and
developed by that photographer. The developed photographs showed the
dead body of a man inside a house. According to Mohanlal (PW-1) and
Ramphal (PW-9), the brothers of deceased, those photographs were of
Narbada Prasad's and had been snapped inside the house belonged to
Narbada Prasad and his wife accused Laxmi Bai. During the course of
investigation, the police also seized documents (Ex.P27, Ex.P-28 and
Ex.P-29) the sample hand writings of accused Laxmi Bai, Sonu and
Manish @ Gabbar. Those documents were examined by the Handwriting
Expert Rajendra Verma, (PW-24), who opined that the hand writings on
the letters seized from the possession of laxmi Bai match with the hand
writings of accused Laxmi Bai, Sonu and Manish and had been executed
by common authorship. The weapons used to commit the crime were also
seized at the instance of accused persons. On completion of all
formalities of investigation, the charge sheet was filed against accused
Sonu @ Mukesh, Manish @ Gabbar, Sudhir, Laxmi Bai and Kallu @
Sushil before the competent Magistrate and the case was committed to
Sessions/Trial Court.
Cri.A.No.1489/05 & Cr.A No.1648/05
5. The learned trial Court framed charges for the offences under
Sections 120-B and 201 of IPC against accused Laxmi Bai and under
Sections 120-B, 302 alternatively under Sections 302/34, 201 of the IPC
against rest of the accused persons. The accused persons denied their
guilt and pleaded for trial.
6. Learned trial Court after trial of the case and on the basis of
the evidence and material which came on record found accused Laxmi
Bai, Manish @ Gabbar, Sonu @ Mukesh guilty of the offences as
mentioned above and sentenced them as per the impugned judgment.
However, accused Kallu @ Mukesh was acquitted from the charges
under Sections 120-B,302 alternatively Section 302/34, 120-B of IPC.
7. In support of it's case the prosecution had examined as many
as 33 witnesses. On perusal of the prosecution evidence, it is clear that
this case is based on circumstantial evidence, therefore the prosecution
must establish the chain of circumstances pointing towards the accused
and accused alone and is inconsistent with their innocence. It is further
essential for the prosecution to cogently and firmly establish the
circumstance from which inference of guilty of accused is to be drawn.
8. In the instant case, in order to prove the guilt of the accused
persons, the prosecution has relied upon following circumstances:-
(i) The deceased was murdered inside the house of
accused Laxmi Bai.
(ii) The photographs of injured deceased were snapped
inside the house of accused Laxmi Bai.
Cri.A.No.1489/05 & Cr.A No.1648/05
(iii) The negatives of above photographs of the deceased
were recovered from the possession of the accused
Manish @ Gabbar.
(iv) The letters promising to pay Rs.40,000/- to accused
Sonu and Manish by accused Laxmi Bai for her personal
work were recovered from the possession of accused
Laxmi Bai.
(v) The weapons used to murder the deceased were
recovered from the possession of the accused Sudheer,
Manish @ Gabbar and Sonu @ Mukesh.
9. It is apparent on perusal of the prosecution evidence that the
dead body which was found in a sack could not be identified at the time
of its recovery. However, the coloured photographs of the deceased
showing his badly injured body and black and white photographs taken
by the police just after the recovery of the dead body, were identified by
his brothers, Ramphal (PW-9) and Mohanlal (PW-1). Ramphal (PW-9) in
his court evidence stated that the dead body shown in black and white
photographs and in coloured photographs is his brother Narbada Prasad.
10. Mohanlal (PW-1) has also in his court evidence corroborated
that the badly injured person shown in the coloured as well as in black &
white photographs is his brother Narbada Prasad. Vijay Kumar (PW-14),
and Guddu @ Nishar Ahmad (PW-21) who are the independent witnesses
have corroborated the prosecution version in their court evidence that the
dead body of Narbada Prasad was identified by his brother Mohanlal
(PW-1). Mohanlal (PW-1), Ramphal (PW-9), Vijay Kumar (PW-14), and
Cri.A.No.1489/05 & Cr.A No.1648/05
Guddu @ Nishar Ahmad (PW-21) were consistent at the point of
identification of dead body in their cross-examinations. Therefore, there
is no reason to disbelieve these witnesses. Consequently, from the
discussion above it is proved that the dead body found in the sack was of
missing Narmada Prasad's. Dr.Jiyauddin (PW-2) has conducted the
postmortem of deceased. The unchallenged testimony of this witness
proves that the cause of death of deceased Narbada Prasad was excessive
bleeding due to ante-mortem injuries on his body.
11. Ramphal (PW-9) in his statement has corroborated the
prosecution story that the house, the bed on which deceased was lying
and other household articles shown in the photographs are of accused
Laxmi Bai's house where she was living with deceased. Learned counsel
for the appellants has drawn the court's attention at para 3 of the
statement of this witness and argued that this witness had not visited the
house of deceased; therefore, his statement identifying the bed, house
and other articles cannot be believed upon. But the above argument is
not acceptable because by reading the whole paragraph, it becomes clear
that this witness is saying only about the photographs being shown to
him at the police station and for that purpose only he had not visited his
brother's house. Therefore, on the basis of the evidence of this witness, it
is proved that the coloured photographs of deceased in which he is
shown lying on the bed with injuries on his body were snapped inside the
house of accused Laxmi Bai.
Cri.A.No.1489/05 & Cr.A No.1648/05
12. Consequently, as discussed above the prosecution has
successfully proved the first and second circumstances that Narbada
Prasad was murdered inside his own house where he was residing with
his wife/accused Laxmi Bai and the photographs of injured Narbada
Prasad were snapped inside the house of accused Laxmi Bai as well.
13. As per prosecution story, accused Laxmi Bai had promised to
pay Rs.40,000/- to co-accused Manish @ Gabbar, Sonu @Mukesh to
complete the task of killing her husband because she had illicit
relationship with accused Kallu. The letters (Exhibit P-50 and Exhibit
P-54) pertaining to the said agreement were seized as per Exhibit 49 at
the instance of accused Laxmi Bai from her house. PW-26 Dilip Jharbade
has stated that he has obtained the handwriting samples of accused
Manish, Sonu and Laxmi Bai as per Exhibit P-58 to Exhibit P-67.
14. PW-24 Rajendra Verma, the handwriting expert, who has
examined the hand writings of accused persons, has opined that the
writings on the letters seized in Crime No. 52/97 match with the hand
writings of accused Laxmi Bai, Sonu Bajpayi and Manish and the same
had been executed by a common authorship. At this point, on behalf of
the appellants, it was argued that permission from competent officers
was not obtained while collecting the handwriting samples of accused
persons. But their argument does not carry any weight because from
perusal of the entire evidence, it transpires that the accused persons have
not challenged that the samples collected from them for examination was
Cri.A.No.1489/05 & Cr.A No.1648/05
not in their handwriting. Therefore, only on the basis of technical
grounds the evidence of handwriting expert cannot be discarded and it is
found to be proved that Exhibit P-54 and Exhibit P-67 were executed by
the accused Laxmi Bai, Manish and Sonu. Consequently, it is also
proved that there was an agreement between accused Laxmi Bai ,Sonu
Bajpayi and Manish to perform some personal work of accused Laxmi
Bai.
15. It is not disputed that accused Laxmi Bai has lodged a written
complaint after almost one and half year of the incident with police
station Babai as per Exhibit P-77. In that complaint, she alleged that her
husband had been missing for almost one year and on this account
accused Sonu and his associates had extorted Rs. 25,000/- from her. She
further alleged that Sonu and his friends had not given her chance to go
to police station and now they are demanding more money. The facts
mentioned in that written complaint clearly indicate that accused Laxmi
Bai was being blackmailed by the co-accused and his associates on
account of her missing husband and even after being blackmailed she had
not gone to the police station and instead gave Rs.25,000/- to
co-accused. This circumstance corroborates the prosecution story that the
agreement between accused Laxmi Bai with co-accused was to eliminate
the deceased/husband of Laxmi Bai. If her husband was in the possession
of co-accused as alleged in the letter than it was normal for her as a wife
to intimate the police, family members or friends about it but accused
Cri.A.No.1489/05 & Cr.A No.1648/05
Laxmi Bai remained calm for almost one and half year until co-accused
had started blackmailing her on account of her missing husband. This
fact also proves the prosecution story that actually accused Laxmi Bai
was aware that her husband had been murdered in her own house and
photographs of the badly injured dead body, lying in her room were in
possession of co-accused and his associates that is why she didn't inform
the police and handed over Rs. 25,000/- to co-accused.
16. PW-26 Dilip Jharbade who is the I.O. in this case has stated
that he has recovered the negatives of coloured photographs of deceased
which were snapped by the accused after murdering him and got it
developed from the photo studio of PW-32 Sanjay. PW-32 Sanjay who in
his statement at para 2 has stated that negatives Exhibit P-12 to P-15 and
Exhibit P-22 to P-26 were developed by him.
17. PW-26 Dilip Jharbade has also proved the seizure of tape
recorder, letters promising to pay Rs 40,000/- as per Exhibit P-49,
weapons knife and Kataar as per Exhibit P-47 and Exhibit P-48 used to
kill the deceased from the accused persons at the instance of their
memorandums. The main argument of the counsel for the appellants is
that independent witnesses have not supported the recovery of letters,
negative and weapons from the possession of the accused persons,
therefore, the prosecution has failed to prove the entire story but this
argument is not tenable because the statement of Dilip Jharbade (PW-26)
remained unchallenged in his cross examination. Nothing emerged in his
Cri.A.No.1489/05 & Cr.A No.1648/05
cross examination which may show his interest in getting the accused
persons convicted due to some enmity or other reasons. His cross-
examination yielded absolutely nothing for the accused persons. The
Hon'ble Supreme Court in the case of Modan Singh Vs. State of
Rajasthan reported in AIR 1978 (Supreme Court) 1511 has laid down
that if evidence of investigating officer is reliable then it can't be
discarded only on the ground that independent witnesses have not
supported his statement. Consequently, on the basis of the evidence of
Dilip Jharbade (PW-26), the recovery of weapons used to commit the
crime is also proved. Hence, rest of the circumstances are also found to
be proved.
18. On the basis of above discussion, it is clear that the
prosecution has successfully proved the chain of circumstances from
which inference of guilt of accused persons can be drawn.
19. Consequently, both the appeals filed by the appellants are
dismissed and conviction of appellant-Laxmi Bai in Cr.A No. 1489/2005
under Sections 120-B of I.P.C. and conviction and sentence of appellants
Sonu @ Mukesh and Sudhir in Cr.A No.1648/2005 under Section 302/34
of IPC is affirmed.
20. Appellant-Laxmi Bai is on bail. Her bail bonds are cancelled.
She is directed to surrender before the trial Court for undergoing
remaining part of sentence and if she fails to do so, the State shall take
Cri.A.No.1489/05 & Cr.A No.1648/05
necessary steps to ensure that she is arrested and send to jail to complete
the remaining part of sentence. As regards, appellant-Sudhir, who is
reported to be absconding, the State shall take necessary steps to
apprehend him and thereafter put him in jail so that he shall undergo
remaining part of sentence. Appellant-Sonu @ Mukesh is reported to be
in jail in connection with some other case, if so, the State shall ensure
that he shall also remain in jail in this case also for undergoing the
remaining part of sentence.
21. A copy of this order be sent to the trial Court concerned for
information and its compliance and also to the jail authority.
22. We also express our words of gratitude for the assistance
rendered by Amicus Curiae.
(Atul Sreedharan) (Sunita Yadav)
Judge Judge
t/b
Digitally signed
by BIJU BABY
Date: 2021.08.07
12:01:53 +05'30'
