Madhya Pradesh High Court
Premchandrra Khatik @ Rakesh vs State Of M.P. on 17 August, 2021
Author: Vivek Rusia
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HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
D.B.:Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Shailendra Shukla, JJ.
Criminal Appeal No.345/2008
1 Jagdish S/o Ambaram, aged about 38 years,
Occu.- Agriculturist, R/o Village Palkhedi,
Tehsil & District Ujjain (M.P.
2 Vijay S/o Devram, aged 26 years, Occu.- Tea Appellants
Stall, R/o Mandle Colony, Rau, District Indore
(M.P.)
V/S
State of Madhya Pradesh, through P.S. Mahakal, Respondent
District Ujjain M.P.
Criminal Appeal No.456/2008
Pawan S/o Vishnuprasad, aged 26 years, R/o
Station Road, Rau, Indore (M.P.) Appellant
V/S
State of Madhya Pradesh, through P.S. Mahakal, Respondent
District Ujjain M.P.
Criminal Appeal No.454/2008
1 Vijay S/o Nandkishore, aged 24 years,
Occupation-Tea Stall R/o Rau Bada Bazar,
Indore (M.P.)
2 Gopal S/o Girdharilal, aged about 30 years, Appellants
Occupation-Agriculture, R/o Bamora, Tehsil &
District- Ujjain (M.P.)
V/S
State of Madhya Pradesh, through P.S. Mahakal, Respondent
District Ujjain M.P.
Criminal Appeal No.1161/2008
Arjun Singh S/o Ramsingh, aged 34 years,
Occupation-Labourer, R/o Chhapiheda, Tehsil-
Khilchipur, District Rajgarh (Biora) (M.P), At Appellant
present :- Central Jail Indore
V/S
State of Madhya Pradesh, through P.S. Mahakal, Respondent
District Ujjain M.P.
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Criminal Appeal No.382/2009
Chandrashekhar S/o Babucharan, aged 39
years, Occupation-Supervisor in Factory Appellant
Pithampur (M.P.)
V/S
State of Madhya Pradesh, through P.S. Mahakal, Respondent
District Ujjain M.P.
Criminal Appeal No.810/2009
Premchandra Khatik @ Rakesh Sharma S/o
Chhotelal, aged about 49 years, Occupation-
Cloth Merchant Pheriwala, R/o Scheme No.51, Appellant
H.N. 518, Indore
V/S
State of Madhya Pradesh, through P.S. Mahakal, Respondent
District Ujjain M.P.
Criminal Appeal No.502/2008
Anil S/o Ambaram Anjana, aged about 28 Appellant
years, Occupation-Agriculture, R/o
Mohanpura, Ujjain. (M.P.)
V/S
State of Madhya Pradesh, through P.S. Mahakal, Respondent
District Ujjain M.P.
Shri Virendra Sharma, learned counsel for the appellants.
(Criminal Appeal Nos. 345/2008 & 454/2008).
Shri Vivek Singh, learned counsel for the appellants.
(Criminal Appeal No.456/2008 and 502/2008).
Ms Sharmila Sharma, learned counsel for the appellant.
(Criminal Appeal No.1161/2008).
Ms Purnima Kanungo, learned counsel for the appellant.
(Criminal Appeal No.382/2009).
Shri M.S. Chouhan, learned counsel for the appellant.
(Criminal Appeal No.810/2009)
Shri Amit Singh Sisodiya, learned Government Advocate
for the State.
JUDGMENT
(Delivered on 17thAugust 2021)
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PER VIVEK RUSIA, J:-
The appellants have filed these appeals against the judgment
dated 05.03.2008 passed by First Additional Sessions Judge,
Ujjain (M.P.) in Session Trial No.236/2004 whereby they have
been convicted and sentenced as under:
Appellant- Jagdish S/o Ambaram (Criminal Appeal
No.345/2008) has been convicted and sentenced as under:-
Section & Act. Imprisonment Fine Amount Imprisonment in
lieu of default of
payment of the
fine.
394 of I.P.C. 7 years R.I. Rs. 2,000/- 6 months.
302 of I.P.C. (on Life imprisonment Rs. 1,000/- 4 months R.I.
two counts)
414 of I.P.C. 1 year Rs. 1,000/- 2 months R.I.
Appellants- Vijay S/o Devram (Criminal Appeal No.345/2008,
Pawan (Criminal Appeal No.456/2008), Vijay S/o Nandkishore
and Gopal (Criminal Appeal No.454/2008), Arjun Singh
(Criminal Appeal No.1161/2008), Chandrasekhar S/o Babucharan
(Criminal Appeal No.382/2009), Premchandra [email protected] Rakesh
Sharma (Criminal Appeal No.810/2009 and Anil S/o Ambaram
Anjana (Criminal Appeal No.502/2008) have been convicted and
sentenced as under:-
Section & Act. Imprisonment Fine Amount Imprisonment in
lieu of default of
payment of fine.
394 of I.P.C. 7 years R.I. Rs. 2,000/- 6 months.
302 of I.P.C. (on Life imprisonment Rs. 1,000/- 4 months R.I.
two counts)
The prosecution story in short is as under:
(2). On 22.05.2004, Ms. Anjana Tiwari CSP (PW-18), Sub
Inspector Pradeep Shukla (PW-21), ASI Vinod Sharma (PW-22),
Head Constable Rajendra and Constable Rakesh of Police -Station
Mahakal were night patrolling. They reached Jawasiya,
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Chintaman Road, in searchlight and saw a motorcycle and truck
and few persons standing at godown situated at Jawasiya Road in
suspicious circumstances. They were called but they did not
come. Upon suspicion, Pradeep Shukla, along with C.S.P. and
force proceeded towards the godown and found a truck bearing
registration No.M.B.F-908 was parked outside the godown. They
identified accused Anil Anjan R/o resident of Mohanpura. After
seeing the police, they fled away from the spot taking the
advantage of the darkness. Pradeep Shukla (P.W.-21) searched the
truck which was found empty because goods had already been
unloaded in the godown. With the help of a searchlight, they
examined the cabin and found unidentified two dead bodies.
Immediately, they informed Anjana Tiwari, CSP. On the basis of
papers and mobile phones of the deceased found in the cabin, they
were identified as Vijay Singh S/o Biram Singh and Kaluram S/o
Biram Singh accordingly their one relative B.S. Chouhan (PW-5)
was informed. The preliminary investigation revealed that the
aforesaid truck was loaded from Indore for delivery of groceries
to Khujner, which was looted by Anil Anjana and his associates
by killing of driver and cleaner and brought the truck at Ujjain.
Information regarding the unnatural death was given to the Police
Station- Mahakal which was registered under Section 174 of
Cr.P.C. the owner of the godown Jagdish was called on the spot
who informed that in the evening his relative Anil Anjan took a
key of the godown for unloading of goods.
(3). Pradeep Shukla, ASI (PW-2) prepared Panchnama
identification of both the deceased vide Ex.P/4 and P/5 in
presence of panch witnesses. Spot map Ex.P/30 and Ex.P/31 were
prepared. Safina form Ex.P/32 was issued and two panchnama of
the dead bodies were prepared as Ex.P/33 and Ex.P/34 in presence
of witnesses. The dead bodies were sent to the postmortem and
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after conducting the postmortem, the report Ex. P/40 and Ex.P/41
were obtained along with query report Ex.P/43. During
investigation, blood stain soil, mobile phone make Reliance
Company and Truck bearing registration No. M.B.F. 908 were
seized by seizure memo Ex. P/36. Unloaded articles/goods were
seized vide P/37. Clothes, shoes, sleeper, and hair of the deceased
were seized vide Ex. P/38. After completing above procedure on
the next day i.e. 23.05.2004 at 14:00 vide Ex. P/75. Pradeep
Shukla, ASI, Police Station Mahakal, registered FIR at crime
No.501/2004 for the offence punishable under Section 302, 394,
120-B, 414 & 201 of I.P.C. against Anil Anjana and 6-7 others.
(4). After registration of the FIR vide Ex.P/59, the investigation
was handed over to Angad Singh Rathore (PW-23), who arrested
the Anil Anjana, Vijay son of Nandkishore, Vijay son of Devraj,
Pawan Patidar on 23.05.2004 vide arrest memo Ex.P/10 to
Ex.P/16. Thereafter accused Premchand @ Rakesh was arrested
vide Ex. P/62. The statements of the witnesses were recorded
under Section 161 of Cr.P.C. During the investigation, white
colour trouser and a key of a motorcycle were recovered from
Vijay and the keys of the truck and bloodstain shirt were
recovered from accused Anil. The bilties(papers related to
transportation of goods through truck) of M/s.Fauladi transport
were recovered from the possession accused Pawan. A Tami was
recovered from accused Chandrashekar, another Tami was
recovered from Arjun and an iron pipe was recovered from
accused Mukesh. All the seized articles were sent for examination
to the FSL vide P/64 to P/66. Sample hairs of all accused were
taken for DNA test, chance fingerprints were taken from the cabin
of the truck and sent for examination vide Ex. P/67, P/68 and
P/69. The report from Police Headquarters (Fingerprint Branch)
was received vide Ex.P/70. A report from Central Forensic
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Science Laboratory Kolkatta was received vide Ex.P./71.
(5). During the investigation Sultan Singh (PW-14) and Amrit
Lal (PW-13) have identified Arjun Singh, Chandu @
Chandrasekhar, thereafter Premchand @ Rakesh in Jail on
06.08.04 in presence of Additional Tehsildar, Ghatiya B.L.
Chouhan (PW-24) vide Ex. P/72. Angad Singh Rathore (PW-23)
SHO completed the investigation and filed the charge-sheet
against all the accused.
(6). The trial was committed to the Sessions Court on
28.08.2004. On 06.11.2004, the learned Additional Sessions Judge
has framed the charges under Section 394, 302 and 120-B of
I.P.C. against all the accused. They abjured the guilt and pleaded
for the trial.
(7). In order to establish the charges, the prosecution has
examined as many as 26 witnesses namely Damodar (PW-1),
Satish (PW-2), Mukesh (PW-3), Sunil (PW-4), Bhanwar Singh
Chouhan (PW-5), Kailash (PW-6), Shankar (PW-7), Dr. P.N.
Kumawat (PW-8), Bherulal (PW-9), Dr. K.N. Tripathi (PW-10),
Dr. G.S. Dhawan (PW-11), Dr. Gyanedra Pradhan (PW-12),
Amritlal (PW-13), Sultan (PW-14), Anna @ Nasir (PW-15),
Shivdayal Singh (PW-16), Dr. Y.K. Vyas (PW-17), Anjana Tiwari
(PW-18), Ravindra Singh (PW-19), Harprasad (PW-20), Pradeep
Kumar Shukla (PW-21), Vinod Sharma (PW-22), Angad Rathor
(PW-23),Babulal Chouhan (PW-24), Anil Porwal (PW-25), Vinod
Patidar (PW-26) and relied upon documents marked as Ex. 1 to
75. In defence accused examined four witnesses named
Dharmendra Goyal (DW-1), Dinesh (DW-2), Yaspal Singh (DW-
3) and Neelmay Chaturvedi (DW-4) and relied upon documents
marked as Ex. D/1 to D/4.
(8). After appreciating the evidence that came on record, the
Additional Sessions Judge has recorded the categorical findings as
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under:
(I). At the time of the incident, Vijay Singh and Kaluram were
the driver and cleaner of the truck bearing registration
No.M.B.F.908 belonging to Balaji Transport.
(II). Vijay Singh and Kaluram were last time seen by Sultan
driver of Balaji Transport in truck No.M.B.F.908 with accused
Premchand and Chandrasekhar on 22.05.2004.
(III). 20 days ago of the date of the incident, Arjun, Premchand
and Shankar took the lift in the truck and get down at Makshi.
(IV). As per the evidence of Damodar, the deceased loaded the
truck for delivery to Khujner.
(V). Amritlal gave indications to a truck of Balaji transport by
waving hand and dipping the light but it did not stop. The truck
was being driven by Arjun and Premchand and Chandrasekhar
were sitting on a bonnet, and they were identified by Sultan and
Amritlal in Test Identification Parde.
(VI). During the night patrolling CSP Anjana Tiwari and other
police officers were found the truck in suspicious condition at
Jawasiya.
(VII). 7-8 persons were found near the truck and Vinod Sharma
and staff had identified Anil Anjana in searchlight and the
remaining accused fled away.
(VIII). Both the deceased were identified by B.S. Chouhan.
(IX). Jagdish owner of the godown has handed over the key to
his relative accused Anil Anjana for unloading goods.
(X). In the night, three boys came in the motorcycle and
disclosed that some goods are being unloaded.
(XI). Police have found the truck article -A and motorcycle
during the search in suspicious condition.
(XII). The investigating officer in presence of witnesses seized
arms, bilties and keys of the truck.
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(XIII). As per the fingerprint expert report, the impressions of the
thumb of Arjun and the finger of Chandrasekhar were found.
(XIV). It has been established that all the incident has been done
by the accused persons by pre-planned criminal conspiracy.
Vide judgment dated 05.03.2008, the appellants Vijay S/o
Devram, Pawan, Vijay S/o Nandkshore, Gopal, Arjun Singh,
Chandrasekhar, Premchandra, and Anil have been convicted under
Section 394, 302 (two counts), of I.P.C. and Jagdish has been
convicted under section 394, 302 (two counts) of I.P.C. and
Section 414 of I.P.C and sentenced as mentioned above. Hence,
these criminal appeals before this Court.
(9). Shri Virendra Sharma learned counsel appearing for the
appellants, Gopal and Vijay S/o Nandkishore (Criminal Appeal
No 454/2008), Jagdish and Vijay S/o Devram (Criminal Appeal
No.345/2008 has argued that the delay in lodging the FIR has not
been explained by the prosecution. Jagdish has been convicted of
being the owner of the godown but he had given godown to Anil
Anjana on rent. Jagdish was not found on the spot, and nothing
was recovered from him, therefore he has unnecessarily made
accused in this case and has wrongly been convicted by the
learned trial court. So far as Gopal and Vijay are concerned, they
have been made accused as they were found unloading the truck
but they were not arrested from the spot. Except for the
memorandum under Section 27 of the Indian Evidence Act,
nothing incrimination material has been collected by the
prosecution against these three accused.
(10). Learned counsel appearing on behalf of Chandrasekhar
(Criminal Appeal No.382/2009 and Arjun Singh (Criminal Appeal
No.1161/2008) has argued that they have been made accused
because they were seen in the truck by Amritlal (PW-13) and
Sultan (PW-14). Amritlal (PW-13) has admitted in cross-
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examination that the names of Chandu, Prem and Arun were
disclosed to him by his employer (Seth). It is further submitted by
the learned counsel that it was not possible to identify person
driving the truck others sitting in the conductor seat and bonnet
while crossing in the highway, therefore, evidence of Amritlal
(PW-13) and Sultan (PW-14) are not reliable
(11). Learned counsel for the appellants Pawan (Criminal Appeal
No.456/2008) and Anil Anjana (Criminal Appeal No.1161/2008)
has argued that they have falsely been implicated in this case.
There was a delay in lodging the FIR. and no test identification
was done by Anjana Tiwari (PW-18). Pradeep Shukla (PW21) has
admitted that Anil was not seen on the spot.
(12). Learned counsel for the appellants Premchandra Khatik @
Rakesh Sharma (Criminal Appeal No.810/2009) has submitted
that he was identified by Amritlal (PW-13) and Sultan (PW-14)
while he was in the truck alongwith Arjun and Chandrasekhar. His
fingerprints were not found in the truck. A Tami was recovered
from his possession planted by the police in his house, he is in jail
since the date of arrest and no explanation has been given by the
prosecution in respect of delay in lodging the FIR. Hence, he is
also entitled for acquittal in this case.
We have heard learned counsel for the parties and perused
the record of the trial court.
(13). Undisputedly this case is based on circumstantial evidence
as no eyewitness came forward to claim that he witnessed the
incident. The prosecution has examined Damodar (PW-1),
Proprietor of Balaji Transport, according to him, he knows
deceased Vijay Singh a driver and Kalusingh a cleaner and knows
Jagannath owner of the truck. On 21.05.2004, he loaded the goods
from his transport at Siyaganj. On 22.05.2004, he gave
information to Jagannath the owner of the truck the death of Vijay
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and Kaluram. Thereafter, he reached to spot and identified them.
According to him, he found medicines, matchboxes, grains valued
Rs. 5,00,000/- loaded in the truck. In cross-examination, he
disclosed that he loaded the truck at about 03:00 on the night of
21.05.2004 and obtained the signature of the driver in Challan but
the same has not been seized by the police. The police have also
not seized registration documents of the truck from the truck
owner.
(14). The prosecution has examined Satish (PW-2), as an
important witness in order to implicate three co-accused but he
did not disclose their names in his 161 (Exb-P/2) as well as in the
court's statement. He saw the truck parked on Chintaman road
and denied that any of the accused came to his house, hence he
has been declared a hostile witness. In cross-examination by
Public Prosecutor, he has admitted that one Hero Honda
motorcycle was lying in front of his house, but he did not disclose
the registration number of the motorcycle to the police. He was
examined by the prosecution to establish that three accused came
and one of them demanded the water and told that goods are being
unloaded from the godown to the truck but in court, he has not
supported the prosecution case. On his sole testimony three the
appellants have been convicted even when he neither disclosed
their name and not he identified them .
(15). The prosecution has examined Mukesh (PW-3) and
according to him, he knows Premchand who came to his house 5-
6 months ago Premchand came to his house and stayed 22-25
days. The second time when Premchand came to his house and he
was walking lame. This evidence does not connect the Premchand
with this offence.
(16). Sunil (PW-4) has been examined by the prosecution, as the
owner of Hero Honda motorcycle MP-09-JW-7494, which was
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found lying infront of his house. He too has also not supported the
case of prosecution because according to him, the police has
seized the motorcycle from the Mahakal parking thereafter, he got
the vehicle released from the court and he has been declared
hostile. In cross-examination, he has denied that he has never
agreed to sell the motorcycle to accused Vijay s/o Devram Patidar
and also denied the statement given to police vide-Ex.P/3.
(17). Prosecution has examined Bhanwar Singh Chouhan as (PW-
5), as a relative of Chander Singh, who identified the deceased.
(18). Prosecution has examined Kailash (PW-6) as memorandum
witness of arrest and seizure memo, who has turned hostile.
(19). Shankar (PW-7) has admitted his signature in the seizure
memos but denied the seizure in his presence. Accordingly, he has
been declared hostile. All suggestions were given by the public
prosecutor were denied by him.
(20). Dr. P.N. Kumawat Assistant Surgeon, Civil Hospital, Tarana
was examined as PW-8, who conducted the postmortem of
deceased Vijaysingh and Kalusingh and according to him, they
both died because of various antemortem injuries inflicted by a
hard, blunt and sharp object. However, there are no challenge
injuries and causes of death of these two deceased, therefore,
there is no need to re-appreciate the evidence of PW-8.
(21). Bherulal, Patwari, who prepared the spot map was
examined as PW-9.
(22). Dr. K.N. Tripathi, Medical Officer, District Hospital, Ujjain
was examined as PW-10 and according to him he seized the hair
of Anil, Vijay S/o Devram, Pawan and handed over the constable
Vinod Rathor. He submitted report Ex. P/45 to P/48. In cross-
examination, he admitted that constable Vinod Rathor brought the
hair and he handed it over to him, but he has no idea that hair
belongs to which accused.
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(23). Doctor G.S. Dhawan, (PW-11) Assistant Surgeon, District
Hospital Ujjain submitted report Ex.P/50 of hair of [email protected]
Chandrasekhar and Gopal. Likewise, Dr. Gyanendra Pradhan
(PW- 12) Medical Officer, District Hospital, Ujjain submitted a
report of hair of Arjun Singh.
(24). Prosecution has examined Amritlal as PW-13, who was the
driver of the truck bearing registration number MP-09-D-6345
and according to him, he was going to Narsinghgarh to Sendhwa
after loading the truck. On 22.05.2004, at about 07:00 Am, near
Sankote (Shahapur), saw the said truck MPF 908 coming and
under the impression that Vijay Singh is driving the truck waved
his hand and gave a dipper of light also to stop the truck but he
noticed that Arjun Singh, who resides near his village, was sitting
in the driver's seat. He saw two others in the cabin, one was
sitting in the conductor seat and the second was sitting in the
bonnet and he identified them in the court as Vijay, Chandu and
Premchand. He has supported the Test Identification Parade of the
aforesaid three accused.
(25). Sultan (PW-14), who was the driver of Balaji Transport has
also identified Arjun Singh, Prem and Chandu in TIP as well as in
dock identification. According to him 20 days ago from the date
of the incident Arjun Singh met him in Indore. He was going from
Indore to Khujner by truck. Arjun Singh met him about 02:30 in
the night at Siyaganj Indore. He wanted to go to Chhapekheda and
sought a lift from him and according to him, his brother-in-law
and father-in-law with i.e. Prem Chandra and Chandra Shekhar.
They all were permitted by him to sit in the truck. Thereafter, they
reached Dakachiya Petrol Pump, and all had tea. Premchand
received the call, which he attended by going one side apart and
thereafter they got down at Makshi. Thereafter, he received
information about the death of Vijay Singh and Kalusingh. In para
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3 he stated that he saw all these three accused in the truck of Vijay
Singh bearing registration No.M.B.F. 908 on the date of the
incident and he has also supported the Test Identification Parade.
In cross-examination, he admitted that 20 days ago, he met all
these three accused persons namely Chandu, Prem and Arjun and
that time he was not aware of their names. His owner has
disclosed their name that they have killed the driver and cleaner
after one month. On the basis of the testimony of PW-13 and PW-
14, the trial court has convicted Prem, Chandu and Arjun. Their
chance fingerprints were also found in the steering and bonnet of
the truck. The Tami was recovered from the possession of
Chandrasekhar and in his trouser, bloodstains were found.
(26). The prosecution has examined Anna @ Nasir as PW-15,
who saw the truck bearing registration No.M.B.F.-908 parked at
Jalalkhedi and 4-5 persons were standing nearby, out of these 9
accused. He has also identified the truck in the court. He has
heard their conversation in brief, and they were addressing their
name as Vijay, Gopal, Pawan. He was examined on 07.01.2006
and supported the prosecution story. The cross-examination was
started but the same could not be completed, thereafter, he
appeared in the court after eight months and completely turned
hostile and started supporting the accused persons.
(27). Shivdayal (PW-16) has supported the prosecution to the
extent that both the accused Vijay came to his house to sleep in
the night and one of them was not wearing the sleeper.
(28). Anjana Tiwari, CSP (PW-18) has virtually narrated the
entire story in her examination-in-chief. She was cross-examined
extensively by the defence counsel. In cross-examination, she has
admitted that despite the recovery of two dead bodies, no more
was registered in the nearby police station. The FIR was
registered on the next of the incident in Police Station-Mahakal.
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However, she gave an explanation that information about the
double murder was to the Inspector General and Superintendent
of Police. When she reached the godown, the goods from the
truck had already been unloaded. No test identification parade this
witness was done by her for identification of any of appellants.
(29). Pradeep Kumar Shukla, (PW-21) who was posted sub-
inspector in police Station-Mahakal on 22.05.2004. According to
him also, the truck had already been unloaded. He has not seen
Anil Anjana on the spot. Later on, Jagdish Anjana was called and
according to him, he had handed over the key to Anil Anjana in
the evening. The court has observed that he has given the
evidence by seeing the case diary again and again. In cross-
examination, he admitted that it is correct that the report in respect
of serious offences should be registered in the police station and
FIR was registered on the next date of the incident at about 02:00
PM. After completing the cross-examination, the AGP again
examined him in which he produced the original merge intimation
register of Mahakal police station to establish that on 23.05.2004
near about 14:25 PM, a merg 52-53/04 was registered under
section 174 of Cr.P.C. He has identified the signature of head
constable Ravindra Singh who recorded the merg.
(30). Thereafter, the prosecution examined Vinod Sharma ASI
(PW-22) who was posted at Mahakal police station on
22.05.2004. According to him in the searchlight, he identified
Anil Anjana, who ran away from the spot. Out of 7-8 persons, he
noticed 2-3 persons and they are Arjun and Chandu @
Chandrasekhar. He was not aware that who brought the Jagdish
Anjana on the spot. He has also admitted that no information was
given to the police station on the wireless about the said incident
and no FIR was recorded till 02:00 on the next date of the
incident. He was not aware of the detail of the arrest of Anil
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Anjana. He did not see ownership documents of the godown.
(31). Prosecution has also examined Angad Singh Rathore, SHO,
Police Station Mahakal as PW-23. According to him, he arrested
Anil Anjana, Vijay son of Nandkishore Patidar, Vijay son of
Devraj and Pawan Patidar on 23.05.2004. He also arrested Arjun
on 09.06.2004. He seized the white colour trouser of Vijay and
Key of motorcycle from Vijay son of Devraj Patidar. He has also
seized various articles from other accused. In cross-examination,
he admitted that the distance between the godown and police
station was about 7 kilometres. No FIR was registered at "0"
crime number in a nearby police station in 15 hours. In para 15,
he admitted that Jagdish Anjana was arrested on 31.05.2004 but
after verification of agreement dead from the handwriting expert,
but there is no seizure from Jagdish and no memorandum was
recorded, therefore, there is no material produced by the
prosecution in respect of implication of Anil Anjana as well
Jagdish regarding his possession of godown. No statement of
Jagdish under section 27 of the Indian Evidence Act was recorded
nor any deed of agreement was recovered. Anil Anjana is not
having any criminal record then how the police could identify him
on the spot, there is no material available on record. That the
prosecution has failed to prove the charge under section 302 and
394 I.P.C. against Jagdish and Anil Anjana beyond a reasonable
doubt.
(32). He has also admitted that not a single resident of Village
Bamora was made a panch witness. The witnesses of the resident
of Ujjain have been made Panch witnesses in the seizure memos
and arrest memos, whereas all the accused have been arrested
from their houses. Except Arjun Singh, Chandra Shekhar and
Prem Chadra Khatik appellants have been convicted on the basis
of their own 27 memos , seizure memos by the learned Additional
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Session Judge.
(33). In cross-examination, the P.K. Shukla SI (P.W.-21) has
admitted that he did not know as to why the FIR was recorded at
about 02:00 pm on the next date of the incident. He has also
admitted that lash panchnama of the dead body were prepared at
11:30 PM and all the proceedings were completed before
registration of FIR. There are unexplained and unsatisfactory
lapses on part of the investigation agency in this case for which
they have failed to give any valid explanation. He has also failed
to produce any documents by which information about the arrest
of Anil was given to his family members. Accordingly, to him the
Panch witnesses Kailash and Ashok are regular witnesses in
police cases. No villagers were made witnesses in this case. The
Anil was arrested from Village Mohanpura where the population
is 1500 but none of the villagers was made panch witnesses,
therefore, the arrest of Anil is also doubtful.
(34). Babulal Chouhan, retired Tehsildar was examined as PW-
24, who conducted the test identification parade of the accused
persons. The prosecution has closed its evidence by examining
Anil Porwal, Photographer (PW-25) and Vinod Patidar service
centre in-charge as PW-26.
(35). Thereafter, appellants examined their defence witnesses
namely Dharmendra Goyal (DW-1), Dinesh (DW-2), Yashpal
Singh (DW-3) and Neelmay Chaturvedi (DW-4).
(36). It is ample clear from the above marshalling of the evidence
during the night patrolling, Anjana Tiwari (PW-18), Pradeep
Shukla (PW-21) and Vinod Sharma (PW-22) found the
motorcycle and truck in suspicious condition. They proceeded
toward the truck and found that 6-7 persons were standing near
the truck. The goods had already been unloaded in the godown.
They identified Anil Anjana on the spot. They called all the
- : 17 :-
accused but they fled away taking advantage of the darkness.
They searched and found it empty. One of them entered inside the
cabin and found two dead bodies lying near the bonnet. On the
basis of documents and mobile phones of the deceased they were
identified as Vijaysingh and Kalusingh, both are real brothers.
Since, two dead bodies were found on the spot and as many as
three officers were present to the rank of CSP, SHO and SI but
none of them gave information to the nearby police station for
lodging the merg. The dead bodies were taken out and sent for
postmortem. Safina form Ex.P./32, Naksha Panchnama Ex. P/33,
application for postmortem report and Crime detail form Ex.P/30,
all were prepared in the early morning of 23.05.2004 that too
before registration of FIR. In all three documents, no time has
been mentioned but Anjana Tiwari (PW-18), Pradeep Shukla
(PW-21) and Vinod Sharma (PW-22) had admitted that all the
formalities were initiated before registration of FIR. Pradeep
Kumar Shukla (PW-22), Sub Inspector has reached the spot
between 08:00 to 08:30 as per crime detail form Ex.P/30 in which
crime number was mentioned as "0/04". The postmortem was
started at 11:00 Am on 23.05.2004 before registration even merg
and FIR. After completing all these procedures, FIR was
registered by Sub Inspector, Pradeep Kumar Shukla (PW-22) at
Police Station- Mahakal on 23.05.2004 at about 14:00 hours
against Anil Anjana and 6-7 unknown others. Thereafter,
Investigating Officer has started arresting all the accused and after
arrest, their memorandum under Section 27 of the Indian
Evidence Act was recorded and recoveries were made. Since the
bunch of hair was found in the fists of one of the deceased,
therefore, hairs of all the accused were collected, chance
fingerprints were taken and sent to FSL. The fingerprint of Arjun
Singh and Chandrasekhar were matched but DNA of all the
- : 18 :-
accused did not match as per the report submitted by Central
Forensic Science Laboratory Calcutta.
(37). According to Damodar (PW-1), he loaded the truck no
MBF-908 on 21.02.2004 in the night and handed it over to the
deceased Vijaysingh driver and the deceased Kalusingh for
delivery of goods and gave information to the owner of the truck
Jagannath, who has not been examined in this case. The police did
not recover copies of Challan from him and the registration book
of the truck. On 22.05.2004, he received information about the
death of the driver and cleaner from Mahakal Police Station.
Thereafter, he reached the spot and found medicines matchboxes,
grains and vegetables loaded in the truck worth Rs. 5,00,000/-
which he took supurdginama (Exb.P-1 ). Damodar (PW-1) has not
disclosed the destination point of the truck where his driver and
cleaner were directed to deliver the goods, therefore, there is
nothing on record to establish that the truck bearing registration
No. M.B.F. 908 loaded with the goods was going to which
direction, this is a serious lapse on part of the investigation
agency.
(38). Amritlal (PW-13) was a driver of Truck No.MP-09-D-6345.
He was going Narsingarh to Sendhwa and on 22.05.2004 at about
07:00 PM, when he reached Sankote, he found the truck bearing
registration No. M.B.P.908 coming from the opposite direction.
He waved his hand and dipper to stop the truck. He knew that the
Vijaysingh used to drive the said truck but when he did not stop,
he noticed that Arjun Singh was driving the truck and two other
sitting on conductor seat and bonnet, to whom he identified in TIP
and dock identification as Chandu and Premchandra. Likewise,
Sultan (PW-14) has deposed that in the night of 21.05.2004, he
saw Arjun, Chandu and Prem in the truck of Vijay Singh i.e.
M.B.F.908 at siyaganj,Indore. These three accused were seen by
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Anna @ Nasir (PW-16) near the truck. In cross-examination, he
took somersault but as noticed above, the cross-examination took
place after eight months, therefore, his examination-in-chief
cannot be discarded.
(39). As per the report given by the fingerprint expert, the
fingerprints of Arun and Chandrasekhar were found inside the
cabin. Trouser of Chandrasekhar was recovered in which the
bloodstains were found. From the Premchand Sumba "article U"
was recovered which was made from the iron having pointed from
one side and rounded on other side and as per FSL report Ex.
P/67, the hole in the Baniyan of deceased Kalusingh was matched
and said to have been caused. Therefore, Arjun Singh ,
Chandrasekhar and Premchand Khatik @ Rakesh have
rightly been convicted by the learned Additional Session Judge
under Section 302 and 394 of I.P.C. The prosecution was able to
prove the above charges beyond reasonable doubt against them in
this case.
(40). So far as Anil Anjana is concerned, he has been made
accused because was found on the spot and identified by Anjana
Tiwari (PW-18), Pradeep Kumar Shukla (PW-20) and Vinod
Sharma (PW-21) but they have not disclosed as to how they knew
him. Jagdish took his name as a relative, who took the key from
him for unloading goods in the godown. Even if it is taken to be
true, as he was found on the spot, but when the truck was brought
near the godown by Arjun, Chandrasekhar and Premchand, he
was not aware that it is a looted article and two dead bodies were
lying in the cabin of the truck. In this case, the prosecution has
failed to establish the conspiracy between all these accused in
order to commit the loot and murder. Not a single evidence has
been produced to establish the place, date and time where all
accused met together and planned to loot the truck, therefore,
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apart from the alleged presence on the spot, nothing has been
collected to implicate Anil Anjana in the case of murder and loot.
At the most, he has committed an offence for keeping the looted
article in his godown but there is no charge under section 411
I.P.C. is against him . Hence, Anil Anjana is liable to be acquitted
for the offence punishable under sections 302 and 394 of I.P.C.
(41). So far as appellant Jagdish Anjana is concerned, he has been
made accused under sections 302 and 394 of I.P.C. because he
was the owner of the godown. He was not found on the spot and
according to him, he gave godown on rent to Anil Anjana,
therefore, he has wrongly been convicted under Section 302 and
394 of I.P.C. He is also liable to be acquitted.
(42). Prosecution has examined Satish (PW-2) as an important
witness and according to him, three persons came to his house on
a motorcycle and told that their goods are being unloaded in the
godown, thereafter they did not return. They left their motorcycle
in front of his house. He has turned hostile in the court and his
statement has been believed to the extent that he saw the truck and
motorcycle in front of his house.Mukesh (PW/3) has not
supported the case of the prosecution. As per the prosecution, the
accused Prem came to his house and stayed for 20-25 days but
same is not sufficient to link him with this case.
(43). The other accused Pawan, Vijay s/o Devram, Vijay son of
Nandkishore, Gopal s/o Girdharilal have been convicted by the
trial court only on the basis of their memorandum statement,
arrest memo and seizure memo. As discussed above, in all these
documents, none of the local villagers was made and Panch
witnesses, are pocket witnesses of Police. They all were arrested
at their house situated in the village. No evidence has been
produced by the prosecution for their involvement in this case.
Their fingerprints were not found, their hairs did not match with
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the hair found in the fists of the deceased. No bloodstains clothes
and arms were recovered from them. There is absolutely no
material when they boarded in the truck bearing registration No.
M.B.F.908 and committed loot and murder of Vijaysingh and
Kalusingh, therefore, Pawan, Vijay son of Devram, Vijay son of
Nandkishore, Gopal son of Girdharilal are liable to be acquitted in
this case.
(44). Before leaving we would like to comments on the standard
of the investigation conducted by the prosecution, in this case,
they have only recovered the truck bearing registration No.
M.B.F.908 and two dead bodies therein. There is no evidence to
establish that after loading the truck from Siyaganj where it was
going to deliver the goods. When these accused-appellants met all
together and conspired to loot the truck. The place and time where
they have committed the loot and murder are also not on record,
no investigation has been carried out and under what
circumstances, this truck was brought to the Ujjain for unloading
the goods, no evidence has been collected by the police. The delay
in lodging the FIR has not been explained by the police, in such a
serious matter, in which two dead bodies were found inside the
truck. Looking to the seriousness of the offence unnecessary
number of accused have been implicated in this case without there
being any connecting material. Learned Additional Session Judge
has also not recorded its satisfaction to come to the conclusion
that the prosecution has proved all the accused beyond a
reasonable doubt. The prosecution has been able to collect
evidence only in respect of Arun, Chandrasekhar and Premchand,
therefore, their convictions and sentence under section 302 and
394 of I.P.C. are being upheld, and the rest of the accused are
hereby acquitted.
(45). We would like to record our displeasure about the role of
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Ms. Anjana Tiwari CSP (PW-18), Angad Singh Rathore (PW-23)
Station House Officer and Sub Inspector Pradeep Shukla (PW-2),
in entire investigation. They have tried to falsely implicate
maximum numbers of accused in this case without collecting any
evidence against them. The copy of this order be sent to the DGP
of M.P. Police HQ Bhopal for necessary action in this matter
(46). In view of the above discussion, we pass the following
order:
(I). The Criminal Appeal No. 345/2008, Criminal Appeal
No.456/2008, Criminal Appeal No.454/2008, Criminal Appeal
No. 502/2008 are allowed, and judgment dated 05.03.2008 passed
by First Additional Sessions Judge, Ujjain (M.P.) is set aside
concerning Jagdish, Vijay S/o Devram, Pawan, Vijay S/o
Nandkishore, Gopal, Anil.
(II). The Appellants Jagdish, Vijay S/o Devram, Pawan,
Vijay S/o Nandkishore, Gopal, Anil be set at liberty forthwith if
their detention is not required in any other case.
(III). The judgment dated 05.03.2008 passed by First
Additional Sessions Judge, Ujjain is upheld with respect to Arjun
Singh, Chandrasekhar S/o Babucharan and Premchandra Khatik
@ Rakesh, therefore, Criminal Appeal No.1161/2008, Criminal
Appeal No.382/2009, and Criminal Appeal No.810/2009 are
hereby dismissed.
Let record of the trial court be sent back along with
judgment for compliance.
( VIVEK RUSIA ) ( SHAILENDRA SHUKLA )
JUDGE JUDGE
praveen/-
Digitally signed by PRAVEEN
NAYAK
Date: 2021.08.18 11:31:27
+05'30'
