Madhya Pradesh High Court
State Of M.P. vs Karulal Dhakad on 28 September, 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.
CRA No. 362/2007
1 Ghanshyam S/o Karulal Dhakad, aged
about 23 years, Occupation- labour
2 Bindu @ Pushkar S/o Karulal Dhakad, Appellant (s)
aged about 19 years, Occupation Labour
3 Mukesh S/o Karulal Dhakad, aged about
25 years, Occupation- Labour, All R/o
Village Hatnara, Piploda, M.P.
V/s
State of M.P. thourgh P.S. Sailana,
District Ratlam M.P. Respondent (s)
Shri Deepak Kumar Rawal, learned counsel for the appellant.
Ms. Bharati Lakkad, learned counsel for the respondent/State.
CRA No.364/2007
1 Bindu @ Pushkar S/o Karulal Dhakad,
aged about 19 years, Occupation Labour
2 Mukesh S/o Karulal Dhakad, aged about Appellant (s)
25 years, Occupation- Labour, Both R/o
Village Hatnara, Piploda, District
Ratlam, M.P.
V/s
State of M.P. thourgh P.S. Sailana, M.P.
Respondent (s)
Shri Deepak Kumar Rawal learned counsel for the appellant.
Ms. Bharati Lakkad, learned counsel for the respondent/State.
CRA No. 363/2007
1 Ghanshyam S/o Karulal Dhakad, aged
about 23 years, Occupation- labour
2 Bindu @ Pushkar S/o Karulal Dhakad, Appellant (s)
aged about 19 years, Occupation Labour
3 Mukesh S/o Karulal Dhakad, aged about
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25 years, Occupation- Labour, All R/o
Village Hatnara, Piploda, M.P.
V/s
State of M.P. thourgh P.S. Sailana,
District Ratlam M.P. Respondent (s)
Shri Deepak Kumar Rawal, learned counsel for the appellant.
Ms. Bharati Lakkad, learned counsel for the respondent/State.
CRA No.194/2007
1 State of Madhya Pradesh through P.S.
Sailana, District Ratlam, M.P.
Appellant (s)
V/s
1 Mukesh Dhakad S/o Karulal Dhakad,
aged about 25 years, Occupation- Respondent (s)
Agriculturist/ Labour, R/o Village
Hatnara, P.S.Piplod
2 Bindu @ Puskar S/o Karulal, aged about
19 years, Occupation -Agriculturist, R/o
Village Advaniya, Tehsil- Sailana,
District Ratlam.
Ms. Bharati Lakkad, learned counsel for the appellant/State.
Shri Ajit Kumar Tiwari, learned counsel for the respondents.
CRA No.192/2007
1 State of Madhya Pradesh through P.S.
Sailana, District Ratlam, M.P.
Appellant (s)
1 Mukesh Dhakad S/o Karulal Dhakad,
aged about 25 years, Occupation- Respondent (s)
Agriculturist/ Labour, Village Hatnara,
P.S. Piplod
2 Bindu @ Pushkar S/o Karulal, aged
about 19 years, Occupation-
Agriculturist, R/o Village Advaniya,
Tehsil- Sailana, District Ratlam.
3 Ghanshyam Dhakad S/o Karulal
Dhakad, aged about 23 years,
Occupation- Agriculturist, R/o Village
Hatnara, P.S. Piplod.
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Ms. Bharati Lakkad, learned counsel for the appellant/State.
Shri Ajit Kumar Tiwari, learned counsel for the respondents.
CRA No.338/2007
1 State of Madhya Pradesh through P.S.
Sailana, District Ratlam, M.P.
Appellant (s)
1 Karulal Dhakad S/o Bagdiram Dhakad,
aged about 57 years, Occupation- Respondent (s)
Agriculturist, R/o Village Hatnara, P.S.
Piplod
2 Rafiq Mevati S/o Muneer Kha, aged
about 19 years, Occupation-
Agriculturist, R/o Village Advaniya,
Tehsil- Sailana, District Ratlam
3 Ramchandra Patidar S/o Devram, aged
about 52 years, Occupation-
Agriculturist, R/o Village Advaniya,
Tehsil- Sailana, District Ratlam
Ms. Bharati Lakkad, learned counsel for the respondent/State.
Shri Ajit Kumar Tiwari, learned counsel for the respondents.
CRA No.339/2007
1 State of Madhya Pradesh through P.S.
Sailana, District Ratlam, M.P.
Appellant (s)
1 Suresh Patidar S/o Nathuram Patidar,
aged about 25 years, Occupation- Respondent (s)
Agriculturist, R/o Hatnara, P.S. Piplod
2 Nahru Kha S/o Sikandar Kha, aged
about 26 years, Occupation-Agriculturist
, R/o Village Hatnara, P.S. Piplod
3 Ramchandra Patidar S/o Devram, aged
about 52 years, Occupation Agriculturist
, R/o Village Advaniya, Tehsil- Sailana,
District Ratlam
4 Suresh Katara S/o Ambaram Katara,
aged about 22 years, Occupation-
Agriculturist/ Labour, R/o Village
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Hatnara, P.S. Piplod
5 Jughar Ninama S/o Bherulal Ninama
Bheel, aged about 25 years, Occupation-
Agriculturist/Labour, R/o Village
Hatnara, P.S. Piplod.
Ms. Bharati Lakkad, learned counsel for the respondent/State.
Shri Ajit Kumar Tiwari, learned counsel for the respondents.
CRA No337/2007
1 State of Madhya Pradesh through P.S.
Sailana, District Ratlam, M.P.
Appellant (s)
1 Dasrath Giri S/o Gopal Giri, aged about
32 years, Occupation- Agriculturist Respondent (s)
/Labour, R/o Village Hatnara, P.S.
Piplod
2 Gulam Husain Mevati S/o Ramjani Kha,
aged about 19 years, Occupation-
Agriculturist/Labour, R/o Village
Hatnara, P.S. Piplod
3 Ramchandra Patidar S/o Devram, aged
about 52 years, Occupation-
Agriculturist, R/o Village Advaniya,
Tehsil- Sailana, District Ratlam.
4 Suresh Katara S/o Ambaram Katara,
aged about 22 years, Occupation-
Agriculturist/Labour, R/o village
Hatnara, P.S. Piplod
5 Jughar Ninama S/o Bherulal Ninama
Bheel, aged about 25 years, Occupation-
Agriculturist/Labour, R/o Village
Hatnara, P.S. Piplod.
Ms. Bharati Lakkad, learned counsel for the respondent/State.
Shri Ajit Kumar Tiwari, learned counsel for the respondents.
*****
JUDGMENT
(Reserved on September 2021)
(Delivered on 28th September 2021)
PER VIVEK RUSIA, J:-
All appeals arise out of the homicidal death of Bharat (deceased
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No.1), Shantilal (deceased No.3) and Shobaram, whose dead bodies
were found in the agriculture field of Nathu Gayri, near Maleni River.
Since these appeals arise out of three murders committed sequentially
on different dates by the common accused, therefore, all three criminal
appeals were tagged and heard together and are being decided by a
common judgment.
(2). Appellants Ghanshyam, Bindu @ Pushkar and Mukesh have
filed CRA No. 362/2007 being aggrieved by the judgment dated 29th
November 2006 arising out of ST No. 94/2005 whereby they have
been convicted and sentenced for homicidal death of late Shantilal
(deceased No. 3) as under:-
Section/Act Imprisonment Fine amount Imprisonment in lieu
of default of payment
of the fine
Ghanshya S. 364 I.P.C. Imprisonment Rs 1000/- 6 months Rigorous
m s/o for Life imprisonment
Karulal
S. 302 r/w 34 Imprisonment Rs 1000/- 6 months Rigorous
I.P.C. for Life imprisonment
S. 201 I.P.C. 3 years Rs 300/- 3 months Rigorous
Rigorous imprisonment
imprisonment
Bindu @ S. 364 I.P.C. Imprisonment Rs 1000/- 6 months Rigorous
Pushkar for Life imprisonment
s/o Karulal
S. 302 r/w 34 Imprisonment Rs 1000/- 6 months Rigorous
IPC for Life imprisonment
S. 201 IPC 3 years Rs 300/- 3 months Rigorous
Rigorous imprisonment
imprisonment
Muskesh S. 364 IPC Imprisonment Rs 1000/- 6 months Rigorous
Dhakad s/o for Life imprisonment
Karulal
S. 302 r/w 34 Imprisonment Rs 1000/- 6 months Rigorous
IPC for Life imprisonment
S. 201 IPC 3 years Rs 300/- 3 months Rigorous
Rigorous imprisonment
imprisonment
(3). The prosecution story in short is as under:
An FIR No. No.77/2002 was registered under sections 352, 201
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and 34 of I.P.C. on 24.03.2005 on account of disclosure by the Mukesh
that 35 days ago he took Shantilal (deceased No.3) S/o Rameshwar
with him to meet missing person Bharat (deceased No.1) and thereafter
he has killed him by strangulating the neck and buried his dead body
in the forest area. On his disclosure memorandum statement recorded
under section 27 of the Evidence Act, the dead body of Shantilal ( de-
ceased No. 3) was recovered on 24.03.2005. The Police registered an
FIR against eight accused namely (i) Mukesh Dhakad, (ii)Dashrath
Giri, (iii)Gulam Hussain, (iv)Bindu @ Pushkar, (v)Ramchandra Pati-
dar, (vi)Suresh Katara, (vii) Jujhar Ninama and (viii) Ghanshayam
Dhakad. On disclosure memorandum statement recorded under section
27 of the Evidence Act of Ghanshyam red colour motorcycle (without
front wheel) of Shantilal was recovered from the well near his house
and front wheel of the said motorcycle was recovered from the house
of the [email protected] Pushakar on his memorandum statement recorded un-
der section 27 of the Evidence Act. A Fawda was recovered from Ju-
jhar and a Gaiti was recovered from Gulam Hussain. Mukesh has dis-
closed that he committed the crime at the instance of Ramchandra (un-
cle of the Bharat ), hence, he has also been made co-accused. After
completing the investigation, a charge sheet was filed. The Prosecution
examined 34 witnesses and got exhibited 59 documents. After evaluat-
ing the evidence, the learned Additional Session Judge has convicted
Mukesh Dhakad, Bindu and Ghanshyam under sections 364, 302/34
and 201 of I.P.C. and acquitted Dashrath Giri, Gulam Hussain, Ram-
chandra Patidar, Suresh Katara and Jujhar Ninama., hence this criminal
appeal.
______________________________________________________
(4). Appellants Mukesh Dhakad, Bindu @ Pushkar and Ghanshyam
have filed CRA No. 363/2007 being aggrieved by the judgment dated
29th November 2006 arising out of ST No. 93/2005 whereby they
have been convicted and sentenced for homicidal death of late
Shobharam (deceased No. 2) . The State of Madhya Pradesh has also
filed a Criminal Appeal No.192/2007 seeking enhancement of
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sentence of Mukesh Dhakad, [email protected] Pushkar and Ghanshyam. The
State of M.P. has also filed another Criminal Appeal No. 339/2007
against the acquittal of co-accused Suresh Patidar, Nahrooq Kha,
Ramchandra Patidar, Suresh Patidar, Suresh katara, Jujhar Ninama.
Appellants Mukesh Dakad, Bindu @ Pushkar and Ghanshyam have
been convicted and sentenced as under:-
Appellant Section/Act Imprisonment Fine amount Imprisonment in lieu
of default of payment
of the fine
Muskesh S. 364 I.P.C. Imprisonment Rs 1000/- 6 months Rigorous
Dhakad s/o for Life imprisonment
Karulal
S. 302 r/w 34 Imprisonment Rs 1000/- 6 months Rigorous
I.P.C. for Life imprisonment
S. 201 I.P.C. 3 years Rs 300/- 3 months Rigorous
Rigorous imprisonment
imprisonment
Bindu @ S. 364 I.P.C. Imprisonment Rs 1000/- 6 months Rigorous
Pushkar for Life imprisonment
s/o Karulal
S. 302 r/w 34 Imprisonment Rs 1000/- 6 months Rigorous
I.P.C. for Life imprisonment
S. 201 I.P.C. 3 years Rs 300/- 3 months Rigorous
Rigorous imprisonment
imprisonment
Ghanshyam S. 364 I.P.C. Imprisonment Rs 1000/- 6 months Rigorous
s/o Karulal for Life imprisonment
S. 302 r/w 34 Imprisonment Rs 1000/- 6 months Rigorous
I.P.C. for Life imprisonment
S. 201 I.P.C. 3 years Rs 300/- 3 months Rigorous
Rigorous imprisonment
imprisonment
(5). The prosecution story in brief of this case is as under:-
On 20.02.2005 Smt. Shivkanya Bai submitted a written com-
plaint that her husband Shobharam( Diseases No.2) S/o Devram resi-
dent of Vill.-Advaniya has not returned to the home since three days,
accordingly a missing person report 3/2005 was registered. During the
investigation, it was revealed that Mukesh, Suresh, [email protected] Pushkar
and Ramchandra in a planned way have abducted Shobharam and
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killed him by strangulation and buried his dead body in the forest area.
On their disclosure, the dead body of Shobharam was drugged in the
forest area of Village Hatnara on 24.03.2005 and accordingly, an FIR
was registered to vide crime No.52/2005 under sections 365, 364,
302,201, 120-B and 34 of I.P.C. against (i) Mukesh Dhakad, (ii)
Bindu @ Pushkar, (iii)Ramchandra Patidar, (iv)Suresh Patidar,
(v)Nahrooq Kha, (vi)Suresh Katara, (vii) Jujhar Ninama and
(viii)Ghanshayam Dhakad. The investigation was completed and a
Charge-sheet was filed against them. The trial was committed to the
Sessions Court. The Prosecution has examined 32 witnesses and got
exhibited 69 documents.
(6). After evaluating the evidence, the learned Additional Session
Judge has convicted Mukesh Dhakad , Bindu and Ghanshayam under
sections 364, 302/34 and 201 of I.P.C. and acquitted, Suresh Patidar,
Nahrooq Kha, Ramchandra Patidar, Suresh Patidar, Suresh katara, Ju-
jhar Ninama.
_________________________________________________________
(7). Appellants Mukesh Dhakad and Bindu @ Pushkar have filed
CRA No. 364/2007 being aggrieved by the judgment dated 29th
November 2006 arising out of ST No. 95/2005 whereby they have
been convicted and sentenced for homicidal death of Bharat Lal
(deceased No. 1) and State has filed Criminal Appeal No.194/2007
under Section 377 of Cr.P.C. seeking enhancement of sentence of
Mukesh and [email protected] Pushkar and also filed Criminal Appeal
No.338/2007 under section 378 of Cr.P.C. against the acquittal of
Karulal Dhakad, Rafiq Mewati, Ramchandra Patidar. Appellants
Mukesh Dhakad and Bindu @ Pushkar have been convicted and
sentenced as under:-
Appellant Section/Act Imprisonment Fine amount Imprisonment in lieu
of default of payment
of the fine
Muskesh S. 364 I.P.C. Imprisonment Rs 1000/- 6 months Rigorous
Dhakad for Life imprisonment
s/o Karulal
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S. 302 r/w 34 Imprisonment Rs 1000/- 6 months Rigorous
I.P.C. for Life imprisonment
S. 201 I.P.C. 3 years Rs 300/- 3 months Rigorous
Rigorous imprisonment
imprisonment
Bindu @ S. 364 I.P.C. Imprisonment Rs 1000/- 6 months Rigorous
Pushkar for Life imprisonment
s/o Karulal
S. 302 r/w 34 Imprisonment Rs 1000/- 6 months Rigorous
I.P.C. for Life imprisonment
S. 201 I.P.C. 3 years Rs 300/- 3 months Rigorous
Rigorous imprisonment
imprisonment
(8). The prosecution story, in brief, is as under:-
An FIR was registered to vide crime No.78/2005 under sections
364, 302, 201, 120-B/34 of I.P.C. on 24.03.2005 by J.K. Sharma Sta-
tion House Officer Police Station- Sailana that the Mukesh Dhakad S/o
Karulal accused in Crime No.52/2005 has disclosed that co-accused
Ramchandra gave him a contract of the killing of the son of his brother
Shobharam Patidar (deceased No. 3) i.e. Bharatlal (deceased No. 1).
He has further disclosed that with the help of Rafiq he abducted
Bharatlal on his motorcycle and took him to his house at Hatnara.
Thereafter, with the help of [email protected] Pushkar, he killed him by stran-
gulation and was buried near the Maleni river, thereafter on disclosure
memorandum statement recorded under section 27 of the Evidence Act
of Mukesh large area land near the river was dug and the dead body in
the form was found. The Bharatlal (deceased No. 1)was identified by
his cloth.
Shobharam Patidar had already lodged a missing person report
No.10/04 of Bharatlal aged about 17 years. The police registered an
FIR against Mukesh Dhakad, [email protected] Pushkar, Karulal S/o Nagdi,
Rafiq and Ramchandra. After completing the investigation, a charge
sheet was filed and the trial was committed to the Sessions Court. The
accused abjured their guilt and pleaded for trial. Hence, the prosecu-
tion was called upon to establish the charges. The prosecution has ex-
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amined 29 witnesses and got exhibited 45 documents.
(9). After evaluating the evidence, the learned Additional Session
Judge has convicted Mukesh and Bindu under sections 364, 302/34
and 201 of I.P.C. and acquitted Karulal Dhakad, Rafiq Mewati and
Ramchandra Patidar.
(10). Undisputed facts in these criminal appeals are that Bharat
(deceased No.1) was a son of Shobaram (deceased No.2) and Smt.
Shivkanya, was brought up by Ramchandra i.e. uncle of Bharat
(deceased No.1). The marriage of the Bharat (deceased No.1) was
settled with Ku. Ramkanya daughter of Shantilal (deceased No.3) and
Smt. Basanti Bai. All three were killed by strangulation of their neck
and buried in the agriculture field of Nathu Gayri, nears Maleni River.
(11). If all the events and evidence of the above three crimes are
arranged sequentially the prosecution story would be that, Bharat
(deceased No.1) resident of Village Advaniya four days before the
Dashara festival went to the house of his uncle Ramchandra but neither
reached there nor returned to his house. He was searched but could not
be found. On 15.02.2005 Mukesh Dhakad ( main accused ) recited the
voice of Bharat lal (deceased No.1) in a cassette to Shobaram
(deceased No.2) in which he was pleading for his release Shobharam
(deceased No.2) . Mukesh Dhakad told them to arrange 7 lakhs for the
release of Bhara lal . Thereafter Shantilal (deceased No.3) went along
with Bharat (deceased No.1) to find Bharat (deceased No.1).
Thereafter he took Shobharal (deceased No.1) with him . On
19.02.2005, Mukesh returned alone to the village and the same day he
left the village along with his wife.
(12). On 20.02.2005, Shivkanya mother of Bharat (deceased No.1)
and wife of Shobaram (deceased No.2)lodged a missing person report
at Police Station Sailana. Shri J.K.Sharma, Inspector has recorded the
missing person report. He arrested the Mukesh and upon interrogation,
he disclosed that Ramchandra gave him Rs. 3,00,000/- for killing
Bharat (deceased No.1). He took Bharat (deceased No.1) in his
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motorcycle behind his house situated near the bank of Melani River
and recorded his voice in the tape recorder thereafter killed him by
strangulating the neck and buried. Thereafter, at the instance of
Ramchandra, he killed in the same manner Shantilal (deceased No.3)
and Shobaram (deceased No.2) one after the other with the help of his
friends. He buried the Shantilal (deceased No.3) in the agriculture field
of Nathu Gayatri and thereafter buried the body of Shobaram
(deceased No.2) nearby the place. He gave the motorcycle of Shantilal
(deceased No.3) to the accused Bindu. Mukesh was arrested and on his
disclosure, a merg was registered upon discovery of the dead body of
Shantilal. One Gaiti was recovered from Gulam Husain. Along with
the dead body of Shantilal (deceased No.3) white colour shawl and
diary were seized. Red color Motorcycle Shantilal bearing registration
No. MP-BB-7505 was seized on disclosure of [email protected] Puskar. The
front wheel of the aforesaid motorcycle was seized in the house of
Ghanshyam. The dead body of Bharat (deceased No.1) and Shobaram
(deceased No.2) were also examined and separate mergs' and FIRs'
were registered. The decomposed dead bodies were found hence all the
deceased were identified by relatives from clothes, thereafter sent for
postmortem and as per the postmortem report, all the deaths were
found to be homicidal due to asphyxia. The police filed three charge
sheets in case of the death of Bharat (deceased No.1), Shobaram
(deceased No.2) and Shantilal (deceased No.3) and thereafter three
trials were initiated vide S.T.No.93/2005, S.T. No.94/2005 and S.T.
No.95/2005. The detail of all the session trials are surmised as under:-
CRA No. 362/2007 CRA No. 363/2007 CRA No. 364/2007
Criminal Appeal against the Appeal against the Criminal Appeal against
conviction of conviction of the conviction of
Appellant No. 1: Appellant No. 1: Mukesh Appellant No. 1:
Ghanshyam Appellant No.2 : Bindu Mukesh
Appellant No.2 : Bindu Appellant No.3 : Appellant No.2 : Bindu
Appellant No.3 : Mukesh Ghanshyam
Crime No. 77/2005 Crime No. 52/2005 Crime No. 78/2005
ST No. 94/2005 ST No. 93/2005 ST No. 95/2005
SHANTILAL (Decd. No.3) SHOBHARAM (Decd. BHARATLAL (Decd.
No.2) No.1)
CRA No. 193/2007 CRA No. 192/2007 CRA No. 194/2007
- : 12 :-
(Dismissed on 09/08/2010) ( Criminal Appeal filed by (Criminal Appeal filed
(Criminal Appeal filed by the State for enhancement by the State for
the State for enhancement sentences) enhancement sentences )
sentences )
CRA No. 337/2007 CRA No. 339/2007 CRA No. 338/2007
(Appeal by the State against (Appeal by the State against (Appeal by the State
acquittal) acquittal) against acquittal)
Total accused: Total accused: Total accused:
1. Mukesh (convicted) 1. Mukesh (convicted) 1. Mukesh
2. Bindu @ Pushkar 2. Bindu @ Pushkar (convicted)
(convicted) (convicted) 2. Bindu @ Pushkar
3. Ghanshyam 3. Ghanshyam (convicted)
(convicted) (convicted) 3. Ramchandra
4. Ramchandra 4. Ramchandra 4. Rafiq (Juvenile)
5. Suresh Katara 5. Suresh Katara
6. Jujhar Ninama 6. Jujhar Ninama
7. Dashrath 7. Suresh Patidar
Ghulam Hussain Nahru
Total 59 documentary Total 69 documentary Total 46 documentary
evidence exhibited by the evidence exhibited by the evidence exhibited by
prosecution prosecution the prosecution
(13). In order to prove the charges, the prosecution has examined the
number of witnesses independently in all three trials, but all the
evidence are indistinguishable in all three trials. The documents got
exhibited in all three trials are common. All the three STs ought to
have been conducted jointly because three murders were allegedly
committed by the accused sequentially on different dates at the
instance of Ramchandra. The list of witnesses examined in three
aforesaid trials are as under:
Name of Witnesses Cr.A. Cr.A. No.363/2007 Cr.A.
No.362/207 No.364/20
Balwant Gir S/o Ram PW-1
Mohan S/o Hiralal Ji PW-2 PW-17 PW-18
Mukesh S/o Pannalal PW-3 PW-16 PW-17
Basantibai W/o Shantilal Patidar PW-4
Dala Ram S/o Mohanalal PW-5 PW-8 PW-10
Devilal S/o Rameshwar Patidar PW-6
Rakesh @ Maykal S/o Ratnalal PW-7 PW-2 PW-4
Kishore S/o Bherulal Ji PW-8 PW-3 PW-5
Dr. K.S. Dodwa S/o Ratansingh Dodwa PW-9 PW-4 PW-6
Shubash Singh S/o Uday Singh Rathore PW-10 PW-5 PW-7
Shivkanya W/o Shobharam PW-11 PW-6 PW-8
Nandu S/o Shankarlal PW-12 PW-7 PW-9
- : 13 :-
Kantilal @ Kanha S/o Girdharilal PW-13 PW-9 PW-1
Bharat Gupta S/o Revtiprashad Gupta PW-14 PW-10 PW-11
Naresh S/o Munshilal PW-15 PW-11 PW-12
Vipin S/o Omprakash Chaturvedi PW-16 PW-12 PW-13
Dharmendra S/o Sitaram Sahu PW-17 PW-13 PW-14
Alok Mathur S/o S.K. Mathur PW-18 PW-14 PW-15
Mangilal S/o Naguji PW-19 PW-15 PW-16
Laxminarayan S/o Ratanlalji PW-20 PW-18 PW-19
Bhagwan Giri S/o Hiraji PW-21 PW-19 PW-3
Sanjiv Kumar S/o Shivnarayanlal PW-22 PW-20 PW-20
Hamendra Singh S/o Late Shri Surendra PW-23 PW21 PW-21
Singh
Munshilal S/o Huharmal PW-24 PW-22 PW-22
Mohanlal S/o Bhiraji PW-25
Daluram S/o Maniram PW-26 PW-24 PW-23
Mohan S/o Shobharam PW-27 PW-25
Ganesh S/o Mohanlal (in Doc PW-28 PW-26 PW-24
Bhawerlal)
Dr. B.K. Batwal S/o P.K.Batwal PW-29 PW-28
Jagdish S/o Kaluji PW-30 PW-27 PW-25
Sanjay S/o Manphool PW-31 PW-29 PW-26
Ramesh Kumar Tiwari S/o Rajaram PW-32 PW-30 PW-27
Shobharam S/o Mansingh Solanki PW-33 PW-31 PW-28
J.K. Sharma S/o Chandan Singh PW-34 PW-32 PW-29
Nandrai S/o dhuraji/ Narsingh S/o PW-23 PW-2
Shuraji
Kantilal S/o Naturam PW-1
(14). For the sake of convenience, the evidence came in
S.T.No.94/2005 (Criminal Appeal No.362/2007) are being taken into
consideration for deciding all these appeals.
(15). After examining all the evidence that came on record, the
learned Additional Sessions Judge has convicted (i) Ghanshyam, (ii)
Bindu @ Puskar and (iii) Mukesh Dhakad and acquitted the remaining
accused as explained above in tabular form. All the three accused have
filed three different criminal appeals i.e. Criminal Appeal
No.363/2007, Criminal Appeal No.362/2007 and Criminal Appeal
No.364/2007 arising out of three Session Trails No 93/2005, 94/2005
& 95/2005 respectively. Against the acquittal of Dashrath, Gulam,
Ramchandra Patidar, Suresh Katara and Jujhar, the State has filed
leave to appeal. After granting the leave by this Court, the office of this
Court has registered the criminal appeals.
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(16). Shri Rawal learned counsel appearing for the appellants has
argued that there are material contradictions between the deposition of
two material prosecution witnesses viz Shivkanya w/o Shobaram
(deceased No.2) and Nandu s/o Shankarlal (nephew of Shobharam).
Shivkanya w/o Shobaram (deceased No.2) (P/W-6) in her deposition at
Para 2 has stated that deceased Shobaram (deceased No.2) was taken
away a day after deceased Shantilal (deceased No.3) was taken but did
not say that she saw Mukesh taking either of the deceased whereas
Nandu s/o Shankarlal (nephew of Shobharam) (P/W-7) in his
deposition stated that deceased Shobaram (deceased No.2) was taken
away two days after deceased Shantilal (deceased No.3) was taken but
he saw lastly only deceased Shobaram (deceased No.2) with Mukesh.
(17). It is further submitted by the learned counsel that undisputedly
no missing report for deceased Bharat (deceased No.1) was ever
lodged even though he was missing for 4 months nor was any missing
report lodged for deceased Shantilal (deceased No.3). No attempts
were made even to inquire as to how and from where Mukesh came to
be in possession of the audio cassette. Even after deceased Shobaram
(deceased No.2) went missing, the missing complaint was lodged after
a delay of 3 days but no explanation has been given for it. The conduct
of the family members was unnatural as Mukesh was roaming freely in
the village as deposed by both Shivkanya w/o Shobaram (deceased
No.2) and Nandu s/o Shankarlal (nephew of Shobharam). Shivkanya
w/o Shobaram (deceased No.2) in their cross-examination.
(18). It is further argued by Shri Rawal learned counsel that the
cassette with the alleged audio recording of deceased Bharat (deceased
No.1) was shown to be seized (Seizure memo- Exhibit P/66) from
Shivkanya but was never produced or played before the Trial Court.
Moreover, Shivkanya did not depose about the existence of such
cassette in her deposition.
(19). It is further submitted by the learned counsel that Mukesh was
arrested on 24.03.2005 at 1:00 AM and his memorandum under S. 27
- : 15 :-
Indian Evidence Act was prepared on 24.03.2005 at 6:40 AM. As per
the deposition of Kishore s/o Bherulal who was a sweeper of the
Municipal Council and member of the digging party, he was informed
on 23.03.2005 itself by the Chief Municipal Officer that some dead
bodies are buried in the jungles of Hatnara and they would be going to
dig them out. The Investigating officer J.K. Sharma in his entire
deposition did not state anything about ever recording (in writing) the
memorandum of Mukesh under S. 27 Indian Evidence Act which was
the most crucial evidence to the entire case of the prosecution. It is a
settled proposition that mere putting an exhibit on a document is not
admissible in evidence. The prosecution must prove its contents.
(20). It is further submitted by the learned counsel that no recovery
Panchnama of the dead bodies (Baramadagi Panchnama) was
prepared. Nothing to show on the record as to based on whose
information the dead bodies were recovered or not. Moreover, except
for Kantilal @ Kanha s/o Girdharilal who turned hostile, none of the
landowners, on whose agricultural lands the dead bodies were
allegedly said to be recovered, were examined. It is pertinent to
mention here that these were private irrigated lands (as per Khasra
Exhibit- P/49 in CRA No. 363/2007; Exhibit- P/38 in CRA No.
364/2007; Exhibit- P/48 in CRA No. 362/2007) allegedly close to each
other and it was highly abnormal that the landowners failed to notice
any anomaly on an irrigated land.
(21). It is further submitted by the learned counsel that there are
contradictions in the spot map prepared by the Police and the spot map
prepared by the Patwari.
In CRA No. 363/2005
Spot map prepared by the Spot map prepared by the Patwari
Police (Exhibit- P/64) (Exhibit- P/48)
Dead body of Decd. Shobaram Dead body of Decd. Shobaram
(deceased No.2) said to have (deceased No.2) said to have been
been recovered from Hatnara recovered from Kushalgarh
In CRA No. 362/2005
- : 16 :-
Spot map prepared by the Spot map prepared by the Patwari
Police (Exhibit- P/55) (Exhibit- P/47)
The dead body of Shantilal The dead body of Shantilal
(deceased No.3) is said to have (deceased No.3) is said to have
been recovered from Hatnara, been recovered from Kushalgarh
Pipalimagra, Land of one Nathu
Gayari
(22). Shri Rawal learned counsel has argued that the dead bodies
were identified by Nandu s/o Shankarlal (nephew of Shobharam)
(P/W-7) based on the clothes of the deceased. The prosecution has
utterly failed to gather cogent scientific shreds of evidence as to the
identity of the dead bodies especially to the skeletal body recovered. It
is pertinent to mention here that the skeletal body was allegedly
identified as Bharat (deceased No.1) only on the basis of the clothes on
it as it had maximally decomposed. However, not even a single
prosecution witness mentioned what clothes deceased Bharat
(deceased No.1) was wearing when he went missing. As stated above
there is no missing complaint/report as to Bharat lal (deceased No.1).
No DNA report, FSL report was produced to corroborate the alleged
identification. Dr KS Dodwa (P/W- 6) in Para 3 of his cross-
examination stated that in that stage of decomposition it was not
possible to identify the dead body. In para 4, he deposes that cause of
death in the case of skeletal body alleged to be of Bharat (deceased
No.1) could not be ascertained. The same findings find mention in the
PM report too (Exhibit- P/5). Resultantly, it could not be proved
whether the death was accidental, homicidal or suicidal or natural.
(23). Shri Rawal learned counsel has emphasized that the
Investigating officer JK Sharma (P/W- 32) made arrests of other co-
accused based on absolutely no evidence/enquiry whatsoever way
before the memorandum of Mukesh taken under S. 27 Indian Evidence
Act, which was the first disclosure memo recorded in writing. There is
unequivocally nothing in the entire record to show how he came to
know about the involvement of the other co-accused in the
- : 17 :-
commission of the alleged crime. Meaning thereby, that without any
evidence/inquiry, number of accused were arrested in order to show
the gravity of the offence.
(24). It is further submitted by the learned counsel that the red color
motorcycle and the front wheel of the same motorcycle were recovered
on the basis of the Memorandum of Bindu @ Pushkar under S. 27
Indian Evidence Act and Memorandum of Ghanshyam under S. 27
Indian Evidence Act (Exhibit- P/13), respectively, belonged to the
deceased Shantilal. They both have been made accused on the basis of
said recoveries. However, nothing was brought on record to prove the
registration certificate of the said vehicle or even its Chassis/Engine
Number to ascertain the actual registered owner, more so no separate
charge under S. 201 IPC for concealment of the said motorcycle was
framed as against the appellants/accused and therefore, they could not
have been convicted on the said premise.
(25). Finally learned has concluded that in these three crimes motive
has not been proved at all. All these cases are based on circumstantial
evidence as no eyewitness came forward to claim that he/she
witnessed the incident. The case categorically does not fall in the
category of rarest of rare cases wherein capital punishment is
warranted as claimed by the State in cross-appeals . The prosecution
has utterly failed in establishing a complete chain of circumstances
beyond doubt let alone beyond reasonable doubt and therefore, the
accused/appellants would be entitled to the benefit of the doubt. In
support of the aforesaid grounds, Shri Rawal has placed reliance over
the following judgments passed by the Apex Court;
1/.Thimma and Thimma Raju Vs. State of Mysore: (1970) 2 SCC 105,
2/.Shankarlal Gyarasilal Dixit Vs. State of Maharashtra: (1981) 2 SCC
35, 3/.Sharad Birdhi Chand Sarda Vs. State of Maharashtra (1984) 4
SCC 116, 4/. Sukhram Vs. State of Maharashtra: (2007) 7 SCC 502,
5/. Suresh and Anr Vs. State of Haryana; (2018) 18 SCC 654,
6/.Digamber Vaishanav and Ors. Vs. State of Chhatisgarh: (2019) 4
- : 18 :-
SCC 522, 7/.Pavan Vasudeo Sharma Vs. State of Maharashtra (2019)
13 SCC 54, 8/.State of Karnataka Vs. A.B. Mahesha & Ors (2018) 9
SCC 612, 9/.Chandru @ Chandrasekaran Vs. State Representation. By
Deputy Superintendent of Police (2019) 15 SCC 660, 10/.Peer Singh
Vs. The State of Madhya Pradesh: (2019) 4 SCC 582, 11/.Anwar Ali
and another Vs. The State of Himachal Pradesh (2020) 10 SCC 166
and 12/.Shivaji Chintappa Patil Vs. State of Maharashtra: (2021) 5
SCC 626.
(26). Per contra Ms. Bharti Lakkad learned Government Advocate
appearing for the respondents/State has argued in support of the
judgments as well as appeals filed against the acquittal of other
accused by submitting that appellants Ghanshyam, Bindu @ Puskar
and Mukesh have rightly been convicted by the trial court as they
kidnapped Bharat (deceased No.1), Shobaram (deceased No.2) and
Shantilal (deceased No.3) and after committed their murder thereafter
buried near the Maleni river. The dead bodies were recovered on the
disclosure of Mukesh Dhakad . Motorcycle in two parts was recovered
from the house of Bindu and Ghanshyam. The learned trial court has
wrongly acquitted the Ramchandra at whose instance the Mukesh and
others murdered Bharat (deceased No.1), Shobaram (deceased No.2)
and Shantilal. Ramchandra was feeling insecure in respect of the
properties of his natural son, therefore, he hired Mukesh to murder
Bharat (deceased No.1). Thereafter, he murdered Shobaram (deceased
No.2) and Shantilal (deceased No.3) upon being given Rs. 3,00,000/-
by Ramchandra. There are recoveries from the other accused, who
shared the common intention with the Mukesh and Ramchandra.
Hence the appeals filed against the conviction are liable to be
dismissed and appeals filed against the acquittal are liable to be
allowed. The Government is praying for capital punishment of all the
accused involved in triple murder being the rarest of the rare case.
We have heard learned counsel for the parties and perused the
records of three session trials.
- : 19 :-
(27). Undisputed facts are that the dead bodies of all the three
deceased were buried near the Maleni River and found on disclosure of
Mukesh. All the decomposed dead bodies were sent for postmortem.
As per autopsy reports, all three deceased were murdered by
strangulating their neck and the cause of death in all three deaths is
asphyxia. There is no challenge to the findings recorded by the trial
court that all three deaths are not homicidal by strangulating the neck
using wire and cloths. Learned counsel for the appellants has not
challenged these findings recorded by the trial court, hence we are not
required to reappreciate the same hence we here affirm the same.
(28). The only issue which required consideration is whether all three
murders were committed by Mukesh and other accused persons?
(29). Balwant (PW-1), Mohan (PW-2), Mukesh (PW-3) and Rakesh
(PW-7) examined by the prosecution have turned hostile.
(30). To establish the culpability of Mukesh and other accused, the
prosecution has examined Smt. Basantibai (PW-4), Devilal (PW-6),
Smt. Shivkanya (PW-11) and Nandu (PW-12).Basantibai wife of
Shantilal (deceased No.3) examined as (PW-4) states that the
engagement of her daughter Ramkanya was fixed with Bharat
(deceased No.1) son of Shobharam. Her husband Shantilal (deceased
No.3) after receiving information about the missing Bharat (deceased
No.1) went to village Advaniya on his red colour motorcycle but did
not return. Later on, she received information that his dead body has
been found in village Hatnara.
(31). Devilal (PW-6) brother of Shantilal (deceased No.3), states that
after receiving a telephone call about the missing of Bharat (deceased
No.1), he went to Village Advaniya and thereafter did not return. In
village Hatnara his dead body was found. The dead body was dug out
by the police in presence of villagers. He was declared hostile but in
cross-examination, he has fully supported the case of the prosecution.
According to him, the Shantilal (deceased No.3) reached village
Advaniya, thereafter, went alongwith Mukesh and Shobaram
- : 20 :-
(deceased No.2) to search the Bharat (deceased No.1). After three
days, Mukesh returned to the village alone. Mukesh told police about
the location of the dead bodies. Police have also recovered the
motorcycle in the house of the Mukesh. The Mukesh has also
disclosed that Ramchandra gave him Rs. 3,00,000/- to kill Bharat
(deceased No.1), Shobaram (deceased No.2) and Shantilal. According
to Mukesh, he wanted to kill Shobhara but Shantilal (deceased No.3)
came and Ramchandra has told to kill Shantilal (deceased No.3) also
for which he would be given Rs. 1,00,000/- in addition. He has further
confirmed that Shantilal (deceased No.3) was having a red colour
motorcycle.
(32). According to Shivkanya (PW-11), the missing person report of
Bharat (deceased No.1) was lodged by her husband Shobharam. Bharat
(deceased No.1) was searched by Ramchandra, his son and her
husband Shobhram but could not be found. Bharat (deceased No.1)
was brought up by Ramchandra. During the festival of Navratri,
Bharat (deceased No.1) said that he was going to the house of co-
accused Ramchandra but he neither reached there nor return to the
home. Thereafter he was searched in the house of relatives but for 4
months but could not be found. One day Mukesh came and said that he
saw the Bharat (deceased No.1) at Village Namli. Mukesh told her
husband to arrange Rs. 7,00,000/- for release of the Mukesh. He took
her husband with him and returned alone, thereafter Mukesh fled away
and her husband Shobaram (deceased No.2) did not return. She came
to know that one day earlier Mukesh took Shantilal (deceased No.3)
with him, when he did not return 2-3 days, she lodged a report.
Thereafter Mukesh has disclosed about all the three dead bodies. She
has completely denied the involvement of Ramchandra behind all three
murders. She has identified the Mukesh in court and according to her,
he killed her husband and son. She was cross-examined by the defence
counsel and in cross-examination, she stated that when the Mukesh
was telling about Bharat (deceased No.1) to Shobhara, her nephew was
also present. However, in her police statement, there is no mention of
- : 21 :-
the demand of Rs.7,00,000/- in the police report.
(33). The prosecution has examined Nandu as PW-12 and according
to him, Mukesh was living in the rented house of Azam Khan in the
village . He brought a cassette and played the voice of Bharat
(deceased No.1) in which he was pleading for saving his life,
thereafter, Shantilal (deceased No.3) went alongwith Mukesh,
thereafter, he came back and took Shobaram (deceased No.2) also. The
second day Mukesh returned alone and he asked about Shantilal
(deceased No.3) and Shobaram (deceased No.2) from Mukesh but he
did not give a satisfactory reply, therefore, a report was lodged. In
view of the aforesaid statement, it is clear that the Shantilal (deceased
No.3) and Shobaram (deceased No.2) went along with Mukesh and but
did not return. Although the police have recovered the cassette but it
was not played during the trial. There was no verification that the
cassette was containing the voice of Bharat (deceased No.1). above
testimony of the three witnesses proves the missing of deceased
Bharat, Shantilal and Shobharam and thereafter recoveries of their
dead bodies at the disclosure of Mukesh we have no reasons to doubt
their testimony.
(34). The prosecution has examined Kishore (PW-8), Kantilal @
Kanha (PW-13), Bharat Gupta (PW-14), Vipin (PW-16) and Mangilal
(PW-19) in order to prove the recovery of three dead bodies. As stated
above there is no challenge to the recovery of dead bodies, therefore
there is no need to reappreciate the findings recorded by the learned
Additional Session Judge. The only argument raised by Shri Rawal is
that before the recovery of all three dead bodies, the news had been
made viral in the local areas, when the police reached along with the
Mukesh, numbers of local villagers, journalists and photographers
were already present on the spot. Therefore, the recoveries of the dead
body on disclosure of Mukesh became doubtful. There was a lot of
agitation against the police in the village because of the missing of
deceased Bharat, Shantilal and Shobharam and the police were unable
- : 22 :-
to found them. The politician, journalists were visiting the village,
therefore, this investigation was regularly being followed by local
villagers and journalists. After the arrest of Mukesh, he disclosed the
location of the dead bodies buried by him in his memorandum
statement recorded under section 27 of the Indian Evidence Act. The
municipal corporation employees were called for digging the land
hence information to the Chief Municipal Officer was send in advance.
The news might have been leaked and residents, media persons etc
reached there before reaching the police. Therefore that would not be
rendered the disclosure by the Mukesh doubtful or inadmissible.
(35). However, the area near and agricultural field of Nathu was
barren land. Even after reaching there, it was impossible for the police
to dig the entire land to find out the exact location of the grave three
dead bodies. On specific locations disclosed of three graves disclosed
by the Mukesh, three areas were dug and all three bodies of deceased
Bharat, Shantilal and Shobharam (deceased No. 1 to 3) were
recovered. Therefore, there is no reason to doubt the investigation
carried out by the police in respect of the search of dead bodies on
disclosure by Mukesh. Because of the presence of villagers and the
media persons, we have no reason to discard the recoveries of dead
bodies by the police at the instance of Mukesh. After recovery of the
dead bodies, wire and cloths were found around their necks. All the
bodies were found in a decomposed condition. The clothes, shoes of
deceased Bharat, Shantilal and Shobharam did not decompose. All
three deceased Bharat, Shantilal and Shobharam were identified by
cloths and other identification marks by their relatives. Their cause of
death has been affirmed in the postmortem report. The missing of
deceased Bharat, Shantilal and Shobharamfrom the village is not
disputed hence identification of three dead bodies cannot be disputed
for want of DNA test.
(36). Shri Rawat learned counsel has submitted that the conduct of
Shantilal (deceased No.3) and Shobaram (deceased No.2) and Nandu
- : 23 :-
was unnatural because upon discloser by Mukesh that he saw Bharat
(deceased No.1) and brought the cassette then they should have taken
him to the police. They did not ask Mukesh as to from where he got
this cassette, therefore, the story of prosecution about bringing the
cassette of Bharat (deceased No.1) by Mukesh become doubtful. The
aforesaid witnesses have clearly deposed that Mukesh came and gave
information about Bharat (deceased No.1) and thereafter took Shantilal
(deceased No.3)and Shobaram (deceased No.2) by one by one and all
did not return but Mukesh returned alone. Thereafter, the FIRs were
lodged. The conduct of Shobaram (deceased No.2) and Shantilal
(deceased No.3) was quite natural as they were worried about the
missing of Bharat (deceased No.1) for the last four months hence
immediately they have followed Mukesh to know the whereabouts of
Bharat (deceased No.1). Their testimony remained unrebutted thus we
have no reason to disbelieve these witnesses.
(37). Mukesh was arrested and on his disclosure, all three dead bodies
were recovered from the open place. The prosecution has successfully
proved its cases by collecting sufficient evidence to establish the
culpability of accused Mukesh in this case. Hence, we hereby confirm
the conviction and sentence of Mukesh in murder of Bharat (deceased
No.1), Shobaram (deceased No.2) and Shantilal ( deceased No 3).
(38). So far as the conviction of Bindu @ Puskar and Ghanshyam are
concerned, they have been convicted because the motorcycle of
Shantilal (deceased No.3) was found in two parts in their house. Apart
from this, there is no evidence that they hatched common intention/
object with Mukesh in murdering Bharat (deceased No.1), Shobaram
(deceased No.2) and Shantilal ( deceased No 3). In order to connect
them in these cases, the only material collected by the police is the
motorcycle. There was no reason for removing the front wheel and
given to Ghanshyam and retaining the remaining motorcycle by Bindu
@ Puskar and buried in their house. They had sufficient time to
dismantle the motorcycle or throw it in some other place instead of
- : 24 :-
burying in their house. Therefore, their conviction in this case under
section 302/34 I.P.C. is without any evidence. At the most, they have
committed the offence under section 201 of the I.P.C for hiding the
evidence. Hence, they are entitled to acquittal under section 302/34
I.P.C..
(39). Criminal appeal No. 364/2007, Criminal Appeal No. 363/2007
and criminal appeal No. 362/2007 are hereby partly allowed. The
conviction and sentences of Mukesh Dhakad in all the three cases
under sections 364,302 and 201 are confirmed. The conviction of
[email protected] Pushkar and Ghanshyam under sections 302/34 and 364 are
hereby quashed but maintained under section 201 of I.P.C. and
sentence them for two years maintaining the fine amount.
*****
(40). Criminal Appeal No. 339/2007( State of M.P. vs Suresh &
ors.), Criminal Appeal No. 338/2007( State of M.P. vs Karulal &
ors.) and Criminal Appeal No. 337/2007( State of M.P. vs Dashrath
Giri & ors.) filed against the acquittal.
(41). The police have implicated Ramchandra based on a memoran-
dum statement recorded under section 27 of the Evidence Act of
Mukesh that he was contracted by him to kill has Bharat (deceased
No.1), but later on, he had to kill Shobaram (deceased No.2) and Shan-
tilal (deceased No 3) also for which he was told to give extra amount.
Only on the basis of the disclosure memorandum statement recorded
under section 27 of the Evidence Act of Mukesh, Ramchandra was im-
plicated in this case but the wife of Shobaram (deceased No.2) i.e.
Shivkanya has denied any involvement of Ramchandra. None of the
other witnesses has taken the name of Ramchandra and nothing has
been recovered from him. It is also not in dispute that the Bharat (de-
ceased No.1) was brought up by uncle Ramchandra, therefore, he had
no reason to hire Mukesh to murder Bharat (deceased No.1), therefore,
the implication of Ramchandra is also without evidence. Although af-
ter the acquittal of Ramchandra there is no motive to implicate Mukesh
- : 25 :-
in every case, the motive is not liable to be established by the prosecu-
tion behind the crime when other evidence is sufficient to prove guilt.
Other evidence and material collected has established the culpability of
Mukesh for the murder of Bharat (deceased No.1), Shobaram (de-
ceased No.2) and Shantilal ( deceased No 3), then motive losses its im-
portance. the Supreme Court of India in the case of Anwar Ali v.
State of H.P., reported in (2020) 10 SCC 166 has held as under on the
point of non-proving of 'motive':-
24.Now so far as the submission on behalf of the accused that in the
present case the prosecution has failed to establish and prove the motive
and therefore the accused deserves acquittal is concerned, it is true that the
absence of proving the motive cannot be a ground to reject the prosecution
case. It is also true and as held by this Court in Suresh Chandra
Bahri v. State of Bihar [Suresh Chandra Bahri v. State of Bihar, 1995
Supp (1) SCC 80 : 1995 SCC (Cri) 60] that if motive is proved that would
supply a link in the chain of circumstantial evidence but the absence
thereof cannot be a ground to reject the prosecution case. However, at the
same time, as observed by this Court in Babu [Babu v. State of Kerala,
(2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179] , absence of motive in a
case depending on circumstantial evidence is a factor that weighs in
favour of the accused. In paras 25 and 26, it is observed and held as
under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3
SCC (Cri) 1179] , SCC pp. 200-01)
"25. In State of U.P. v. Kishanpal [State of U.P. v. Kishanpal, (2008)
16 SCC 73 : (2010) 4 SCC (Cri) 182] , this Court examined the
importance of motive in cases of circumstantial evidence and observed :
(SCC pp. 87-88, paras 38-39)
'38. ... the motive is a thing which is primarily known to the
accused themselves and it is not possible for the prosecution to
explain what actually promoted or excited them to commit the
particular crime.
39. The motive may be considered as a circumstance which is
relevant for assessing the evidence but if the evidence is clear and
unambiguous and the circumstances prove the guilt of the accused,
the same is not weakened even if the motive is not a very strong one.
It is also settled law that the motive loses all its importance in a case
where direct evidence of eyewitnesses is available, because even if
there may be a very strong motive for the accused persons to commit
a particular crime, they cannot be convicted if the evidence of
eyewitnesses is not convincing. In the same way, even if there may
not be an apparent motive but if the evidence of the eyewitnesses is
clear and reliable, the absence or inadequacy of motive cannot stand
in the way of conviction.'
26. This Court has also held that the absence of motive in a case
depending on circumstantial evidence is a factor that weighs in
favour of the accused. (Vide Pannayar v. State of
T.N. [Pannayar v. State of T.N., (2009) 9 SCC 152 : (2009) 3 SCC
(Civ) 638 : (2010) 2 SCC (Cri) 1480] )"
(42). In case of Thimma (supra), the Apex Court has held that Once
- : 26 :-
a fact is discovered from other sources there can be no fresh discovery
even if relevant information is extracted from the accused. It would, in
the circumstances, be somewhat unsafe to rely on this information for
proving the appellant's guilt. In the present case, the dead bodies have
already been recovered on a disclosure of Mukesh then other accused
have been wrongly been implicated only on the basis of their
disclosure, hence, they have rightly been discharged by the trial court.
(43). The other accused have been implicated with the aid of section
34 of I.P.C. on the basis of some recoveries. Apart from that, the police
could not collect any evidence that they killed the deceased in the
prosecution of the common object. They have used Gaiti and Fabda for
digging the hole to bury the dead bodies . Hence, all other accused
have rightly been acquitted from the charge under sections 302 and
364 of I.P.C in absence of the evidence. It appears that in order to
pacify the furious people the police have added the number of accused.
(44). In the case of Shankarlal Gyarasilal Dixit (supra), Apex Court
has held that in case of circumstantial evidence, it is necessary to find
whether the circumstances on which the prosecution relies are
established by satisfactory evidence, often described as 'clear and
cogent' and secondly, whether the circumstances are of such a nature
as to exclude every other hypothesis save the one that the appellant is
guilty of the offences of which he is charged.
(45). In the case of Sharad Birdhi Chand Sarda (supra), the Supreme
Court has explained the five golden principles that constitute the
panchsheel of the proof of a case based on circumstantial evidence and
in the absence of a corpus deliciti. The five golden principles as under:
1. The circumstances from which the conclusion of guilt
is to be drawn should be fully established; [163D]
2. The facts so established should be consistent with the
hypothesis of guilt and the accused, that is to say,
they should not be explainable on any other
hypothesis except that the accused is guilty; [163G]
3. The circumstances should be of a conclusive nature
and tendency;[163G]
4. They should exclude every possible hypothesis except
the one to be proved; and [163H]
- : 27 :-
5. There must be a chain of evidence so complete as not
to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must
show that in all human probability the act must have
been done by the accused. [164B]
(46). In the case of Sukhram (supra), the Apex Court has held that
there the evidence has to be carefully scrutinized and each
circumstance should be dealt with carefully to find out whether the
chain of the established circumstances is complete or not. It also needs
to be emphasized at this stage itself that in a case based on
circumstantial evidence motive assumes great significance.
(47). In the case of Suresh (supra), the Apex Court has held that in
the case of circumstantial evidence, motive even if proved, forms only
one of the circumstances. The credibility of the witnesses is an
important aspect. The chance witness should be given due regard.
Extrajudicial confessional statement of co-accused cannot be solely
utilized to convict a person. Circumstantial evidence is those facts,
which the court may infer further. There is a stark contrast between
direct evidence and circumstantial evidence. In cases of circumstantial
evidence, the courts are called upon to make inferences from the
available evidence, which may lead to the accused's guilt. In the
majority of cases, the inference of guilt is usually drawn by
establishing the case from its initiation to the point of commission
wherein each factual link is ultimately based on evidence of a fact or
an inference thereof. Therefore, the courts have to identify the facts in
the first place to fit the case within the parameters of 'chain link
theory' and then see whether the case is made out beyond reasonable
doubt.
(48). In the case of Digamber Vaishnav (supra), the Apex Court has
held that even if the offence is a shocking one, the gravity of offence
cannot by itself overweigh as far as legal proof is concerned. In cases
depending highly upon the circumstantial evidence, there is always a
danger that the conjecture or suspicion may take the place of legal
proof. The court has to be watchful and ensure that the conjecture and
- : 28 :-
suspicion do not take the place of legal proof. The court must satisfy
itself that various circumstances in the chain of evidence should be
established clearly and that the completed chain must be such as to
rule out a reasonable likelihood of the innocence of the accused. The
three conditions must be satisfied which are as follows:
i.) the circumstances from which an inference of guilt is
sought to be drawn, must be cogently and firmly established;
ii.) those circumstances should be of a definite tendency
unerringly pointing towards the guilt of the accused; and
iii.) the circumstances, taken cumulatively, should form a
chain so complete that there is no escape from the
conclusion that within all human probability the crime was
committed by the accused and none else, and it should also
be incapable of explanation on any other hypothesis than
that of the guilt of the accused.
(49). In the case of Digamber Vaishnav (supra), the Apex Court has
held that in a case based on circumstantial evidence it is always better
for the courts to deal with each circumstance separately and then link
the circumstances which have been proved to conclude. The Apex
Court has summarized the law in case of circumstantial evidence,
which are as under:
1. The circumstances relied upon by the prosecution which
lead to an inference to the guilt of the accused must be
proved beyond doubt;
2. The circumstances should unerringly point towards the
guilt of the accused;
3. The circumstances should be linked together in such a
manner that the cumulative effect of the chain formed by
joining the links is so complete that it leads to only one
conclusion i.e. the guilt of the accused;
4. That there should be no probability of the crime having
been committed by a person other than the accused.
(50). It appears looking to the lots of agitation by the villagers of
Gram Advaniya and the pressure of local leaders, the police have
implicated the number of accused in this case without collecting any
evidence against them. They have been made accused because, on
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their disclosure, the three dead bodies were recovered but learned
Additional Session Judge that the dead bodies had already been
recovered at the instance of Mukesh. Apart from this nothing has been
collected by the prosecution to connect the other accused in the triple
murder. Hence, they have rightly been acquitted and there is no
substance in the cross-appeals filed by the State against acquittal,
hence, all the criminal appeals filed by the State are hereby dismissed.
Accordingly, Criminal Appeal No.339/2007, Criminal Appeal
No.338/2007 and Criminal Appeal No.337/2007 are hereby dismissed.
(51). Criminal Appeal No. 194/2007( State of M.P. vs Bindu &
Mukesh.) and Criminal Appeal No. 192/2007( State of M.P. vs
Mukesh Dhakad & ors.) filed by the state for enhancement of
sentences.
(52). So far as the enhancement of sentence awarded to Mukesh is
concerned, he has been convicted under Section 302, 364 of I.P.C. and
sentenced to undergo life imprisonment in all three sessions trial. We
do not find it rarest of the rare case for awarding death sentence to
Mukesh especially when he has undergone more than 16 years of
incarceration. Accordingly, we dismiss the appeal No.192/2007 and
Appeal No.194/2007. N
(53). The Mukesh is still in jail he be retained in jail to serve the
remaining sentences. So far [email protected] Pushkar and Ghanshyam are
concerned if they are in jail they be released from jail forthwith if not
required in any other case otherwise their bail bond stood cancelled.
(54). The record of all the three-session trials be sent back for
necessary compliance along with the photocopy of the judgment.
Certified copy as per Rules.
( VIVEK RUSIA ) ( SHAILENDRA SHUKLA )
JUDGE JUDGE
praveen
Digitally signed by PRAVEEN
NAYAK
Date: 2021.09.28 19:12:47
+05'30'
