Anurag Jain vs The State Of Madhya Pradesh
2022 Latest Caselaw 357 MP

                                 1

HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR.

     DIVISION BENCH : HON'BLE SHRI JUSTICE SUJOY PAUL
                                 &
                HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA

                  Criminal Appeal No. 489 / 2010

                           Anurag Jain
                               Vs.
                     State of Madhya Pradesh

========================================================
Shri P. S. Gaharwar, learned Advocate and Ms. Manju Khatri
(Amicus Curiae) for the appellant - accused.
Shri Akshay Pawar, learned Panel Lawyer for the respondent -
State.
========================================================

Whether approved for reporting : (Yes / No).

                          JUDGMENT

(Delivered on 7th day of January, 2022)

Per Arun Kumar Sharma, J :

The present appeal is directed against the judgment

dated 12.3.2010 passed by Third Additional Sessions Judge, Satna in

S. T. No. 56/05 convicting the appellant under Section 302 of the

Indian Penal Code and sentencing him to undergo imprisonment

for life and to pay fine of Rs.2000/- in default to undergo rigorous

imprisonment for 6 months.

2. Briefly stated, the case of the prosecution is that on

22.10.2004 an information in writing was sent by Head Constable

Shiv Pratap Singh (PW-3) Police Station G.R.P. and Constable No.

491 Shyam Kishore (PW-4), Railway Police, Katni to the In-charge,

Railway Police, Manikpur, to the effect that in the intervening night

of 21/22 of October, 2004, they boarded at Katni upto Manikpur in

Train No.5009 Chitrakoot Express for Arms Patrolling. The said

train was standing before Khutha Railway Station as there was no

signal, they alighted from the train and started checking the train.

As and when the train started, they entrained in the AC coach of

the train and in said coach, conductor A.K. Shrivastava and

attendant Radheshyam were available. On hearing commotion,

they along with said conductor and attendant headed towards "C"

Coupe and tried to open the door but that was bolted from inside.

When the train stopped at platform no. 2 of Majhgawa Railway

Station, they got down from the train and checked that coupe

from outside and peeped through window and found one person

ensanguining lying upon the floor of the coupe and the persons

available in the platform informed that they saw one person

jumping from emergency window and running towards village

(basti). ASM R. S. Rajpoot and guard of the train also came over

there and told that facility of treating doctor is not available in the

station. The train departed from the station and stopped at

platform no. 2 of Manikpur Station and they found the said person

dead. Further inquiry was done by the Railway Police on the basis

of reservation chart and found that the said coupe was reserved in

the name of D. K. Gupta and S. K. Gupta. On the basis of said

information, Merg No.0/04 was registered and merg inquiry was

done and on completion of merg inquiry, FIR vide Crime no.278/04

for the offence under Section 302 of IPC was registered against

unknown person. During investigation, on 22.10.2004 Amit Jain

(brother of the appellant / accused) and Ramnaresh identified the

articles found near the dead body of the deceased Sarman Singh

and the same were belonging to the appellant vide identification

memo Ex.P/10 and the same were seized vide seizure memo

Ex.P/14. The dead body of the deceased as Sarman Singh was

identified by Amit Jain, Deep Chand Jain and Arun Kumar Mishra

vide identification memo Ex.P/18. Letters vide Ex.P/29 & Ex.P/30

were written for postmortem of the dead body of the deceased

and postmortem report Ex.P/22 was received. Blood stained and

plain rexine were seized vide seizure memo Ex.P/25. The appellant

was arrested on 26.10.2004 vide arrest memo Ex.P/12 and on the

basis of the information given by him, articles were seized as per

seizure memo Ex.P/4. A diary written by the appellant / accused

was seized vide seizure memo Ex.P/45 and the same was sent for

hand writing expert and a report Ex.P/47 was received from the

State Examiner of Questioned Documents. After investigation was

over, a charge sheet was filed against the appellant / accused

before the Chief Judicial Magistrate, Satna from where the case

was committed to the court of Session for trial.

3. The learned trial Court framed charge for an offence

under Section 302 of the IPC against the appellant / accused.

However, the appellant / accused abjured his guilt and stated that

he did not fill up any reservation form and at the police station

some reservation forms were got filled up by the Police and the

same were sent for examination. In defence he examined only one

witness Pappu Jain (DW-1). He also pleaded that he was innocent

and claimed for trial.

4. Learned trial Court after trial of the case and on the

basis of the evidence and material came on record, particularly the

evidence of PW-1 Smt. Gulab Bai, PW-5 Pradeep Shrivastava, PW-6

Nirbhay Singh, PW-7 Dashrath Singh, PW-8 Dilip Vasani, PW-10

Komal Singh, PW-12 Lakhanlal Tiwari, PW-13 Niyajul Khan and PW-16

R. C. Sharma, has convicted the appellant for the aforesaid charge

and sentenced as mentioned earlier.

5. The aforesaid finding of the trial court has been

assailed on behalf of the appellant / accused on the grounds that

learned trial court has not appreciated the evidence in its right

perspective and the case is based on circumstantial evidence. None

of the circumstances has been proved beyond reasonable doubt

and none of the circumstances individually or with cumulative

effect is sufficient to come to the conclusion that none other than

the appellant may be the culprit of the deceased. The finding of

the learned trial court is based on surmises and conjectures which

is not sustainable. Further submitted that there is no eye witness in

the case and there is also no evidence to establish the fact that

the appellant is the actual accused who was last seen with the

deceased. Apart from it, there is no mention of date and details of

last seen. Further stated that the statement of station master and

guard of the train were not recorded by the prosecution who may

very well explain the incident. It has also been stated that

handwriting expert report is doubtful as the appellant did not fill

up any reservation form and at the police station some reservation

forms were got filled up from the appellant. Further so far as the

recovery is concerned, no cogent evidence was adduced by the

prosecution to substantiate the recovery of objects and the seizure

list.

6. Learned counsel for the appellant / accused has

highlighted two judgments in support of his contentions viz

Kanhaiya Lal vs. State of Rajasthan in criminal appeal no.595/2014

decided on 13.3.2014 and Rambraksh @ Jalim vs. State of

Chhattisgarh in criminal appeal no. 462/16 decided on 12 May, 2016

and relying upon these cases, prayer is made to allow the appeal

and acquit the appellant from the aforesaid charge.

7. Learned Panel Lawyer appearing for the respondent /

State has argued in support of the impugned judgment and stated

that the finding of conviction and sentence of the learned trial

court is based on cogent and reliable evidence. Relying upon the

cases of this Court as well as Hon'ble the Apex Court viz Jugru vs.

State of M.P. 2004 (1) MPLJ 530, C. Muniappan and others vs. State

of Tamil Nadu (2010) 9 SCC 567; Ashok v. State of Maharashtra

(2015) 4 SCC 393; Kiriti Pal vs. State of West Bengal (2015) 11 SCC

178; State of Himachal Pradesh vs. Pardeep Kumar and others

(2018) 13 SCC 808; Surinder Kumar vs. State of Punjab (2020) 2

SCC 563 (Para 15 & 16), it has been prayed that the appeal be

dismissed.

8. We have considered the contentions of learned

counsel for the parties and also perused the record. In view of the

statement of autopsy surgeon Dr. R. N. Mishra (PW-14) who was

posted at District Hospital, Chitrakoot on the post of Medical

Officer and performed postmortem on the dead body of the

deceased on 22.10.2004, it is proved that the death of the

deceased was homicidal as on the body of the deceased 10 injuries

were found to be caused by hard and sharp object resulting death

due to shock and hemorrhage according to the PM report Ex.P/22.

In the internal examination, he found that large amount of blood

was preserved in the stomach and there was also semi digested

food matter. Liver was ruptured. After postmortem, dead body

and cloths containing pant, belt, half shirt, baniyan, undergarment,

dhaga @ taviz etc. were handed over in the sealed cover to the

accompanying Police Constable who brought the dead body for

postmortem. Therefore, learned trial Court has not committed any

error regarding finding of nature of the death. Learned counsel for

the appellant has not objected the aforesaid finding. Hence, there

is no hesitation to hold that the nature of the death of the

deceased was homicidal.

9. Now the question is that whether the appellant has

assailed the deceased and caused his death. In this regard the

prosecution case is based first of all on the circumstance of last

seen of the appellant with the deceased. In this regard the

statement of Gulab Bai (PW-1) is on record in which she stated that

her husband (deceased) was employee of the appellant / accused

and was getting Rs.3000/- per month. She specifically stated that

the appellant / accused took the deceased with him to Karvi but

thereafter the deceased did not come back. Komal Singh (PW-10)

in his statement stated that the deceased and the appellant/

accused came at his house in the last year and they both went to

Katni by truck and thereafter, the deceased did not come back. He

specifically stated that he lastly saw the deceased with the

appellant. Lakhanlal Tiwari (PW-11) Sarpanch of the village

Rohaniya also stated that in the last year the deceased Sarman

came with the appellant at his residence and from his house, they

both went to the house of Komal Singh (PW-10). The statements

of the aforesaid witnesses have remained unimpeachable during

cross-examination. Thus, it is clear that the deceased was lastly

seen with the appellant.

10. In this regard, we also find much force on the case law

cited by learned counsel for the respondent / State viz Kiriti Pal vs.

State of West Bengal (2015) 11 SCC 178 and Ashok vs. State of

Maharashtra (2015) 4 SCC 393 in which it is held that the person

who is last found in company of another who is dead or missing,

person with whom he was last found alive has to explain

circumstances in which he parted company. Theory of last seen

alive comes into play, when time gap between the way accused

and deceased were last seen together and the deceased was

found dead, is so small, the possibility of any other person

committing murder becomes impossible. In such circumstances,

Kanhaiya Lal and Rambraksh @ Jalim (supra) cited by learned

counsel for the appellant / accused do not help the appellant.

11. Further Gulab Bai (PW-1) also stated in her statement

that the appellant was having bad eyes on her and she also

informed about the nature of the appellant to her husband /

deceased. This statement of Gulab Bai (PW-1) has also remained

unimpeachable during cross- examination. Nirbhay Singh (PW-6)

and Komal Singh (PW-10) are the brothers of the deceased and in

their statements they have also stated that the appellant / accused

was having illicit liaison with the wife of the deceased Sarman.

Thus, from the testimony of the aforesaid witnesses it is crystal

clear that the appellant was having illicit relationship with the wife

of the deceased, therefore, he had motive to cause death of the

deceased. Thus, the prosecution has successfully proved the

motive of the appellant/ accused to cause death of the deceased.

12. According to Shiv Pratap Singh (PW-3) Head

Constable and Shyam Kishore (PW-4) Constable No. 491, Railway

Police, Katni, they were on the train no.5009 Chitrakoot Express on

21.10.2004 for arms patrolling and on hearing hue and cry, they

moved towards "C" Coupe from where turmoil was coming out

and at that time, Conductor A. K. Shrivastava (PW-11) and

attendant Radheshyam were also with them. A. K. Shrivastava

(PW-11) stated that on 21.10.2004 he was discharging his duty as

conductor in train no. 5009 Chitrakoot Express and he went

towards "C" coupe and found one person bloody in that coupe.

Identification of injured person was done as Sarman by Gulab Bai

(PW-1), Nirbhay Singh (PW-6) and Dashrath (PW-7). Thus, it is also

clear that the person who died in the intervening night of 21/22

October, 2004 was Sarman, and Amit Jain who is brother of the

appellant / accused, Deep Chand Jain and Arun Kumar Mishra also

identified the dead body of the deceased as Sarman as per Ex.P/18.

13. It is also found to be proved that the cloths and one

pen seized from the spot were belonging to the appellant /

accused and the same were identified by his brother Amit Jain and

Ramnaresh and in this regard, identification panchnama is Ex.P/10

and seizure memo is Ex.P/14.

14. The prosecution has also relied upon another

circumstance of injury sustained by the appellant / accused and on

medical examination, one abrasion and mark of wound were found

on the body of the appellant / accused, for which, no explanation

has been given by the appellant / accused and in this regard, Dr.

Devendra Singh (PW-2) has given his report as per Ex.P/1. Apart

from above, according to statement of Niyajul Khan, Investigating

officer (PW-13), after arrest of the appellant / accused, his

memorandum was recorded and according to his memorandum,

reservation form Ex.P/36 was seized as per seizure memo Ex.P/5.

Dilip Kumar (PW-8) has also identified his writing on the

reservation application. R. C. Sharma (PW-16) Handwriting Expert

in his report stated that handwriting on reservation form as well as

sample sent for examination are the same person and submitted

his report Ex.P/47.

15. The contention of learned counsel for the appellant is

that the station master and guard have not been examined. Since,

it is proved that the deceased was last seen with the appellant and

the appellant / accused had motive for causing death of the

deceased because the accused was having illicit relationship with

the wife of the appellant. Further, it is not possible for the

conductor or the station master or the guard to identify each and

every person traveling in the train because the prime duty of the

conductor is to check the ticket not the face of the person

traveling in the train. Further, the station master and the guard

concerned reached on the spot after happening of the incident.

They were not the material witnesses and if they have not been

examined by the prosecution, it will not adversely affect the

prosecution case.

16. In view of the aforesaid discussion, it is clear that the

prosecution has established the motive of the incident, last seen of

the appellant with the deceased when he was alive. According to

the medical expert, the injuries found on the body of the deceased

may be caused by hard and sharp object and may be caused by the

knife which was seized on the spot and the cloths and pen seized

from the coupe were belonging to the appellant / accused and the

same have been identified by his brother Amit Jain and Ramnaresh.

These circumstances make out a complete chain to prove the fact

that none else the appellant has assailed the deceased and caused

injury, due to which, the deceased breathed his last.

17. Therefore, it is held that the prosecution has proved its

case beyond reasonable doubt and learned Trial court has not

committed any error in coming to the conclusion that the appellant has

committed murder of the deceased.

18. As a result, the appeal being devoid of merit is Dismissed.

The judgment of conviction awarded under Section 302 of the IPC and

order on the sentence to undergo imprisonment for life along with fine

with default stipulation are hereby affirmed. The appellant is in jail. He is

directed to undergo the entire jail sentence in accordance with law.

19. A copy of this order be sent to the trial court and the jail

authorities concerned for information and necessary compliance.

        (SUJOY PAUL)                                 (ARUN KUMAR SHARMA)
              JUDGE                                            JUDGE




        JP/-
JITENDRA KUMAR
PAROUHA
2022.01.07 17:39:51 +05'30'