Madhya Pradesh High Court
Tarun vs The State Of Madhya Pradesh on 15 June, 2022
Author: Subodh Abhyankar
:1: CRA Nos. 1475/2012, 97/2013 & 186/2013
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
CRIMINAL APPEAL No. 1475 of 2012
Between:-
PULKIT @ MONU S/O VIJAY PATNI, AGE- 23 YEARS,R/O-267,
CLERK COLONY, INDORE (MADHYA PRADESH)
.....APPELLANAT
(BY SHRI VIVEK SINGH, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU.P.S.HEERA
NAGAR, INDORE (MADHYA PRADESH)
..... RESPONDENT
(BY SHRI BHASKAR AGRAWAL, GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 97 of 2013
Between:-
TARUN S/O MANOHAR KASHYAP, AGED ABOUT 23 YEARS,
OCCUPATION: SERVICE 1034 NAI BASTI BHAGIRATH PURA
INDORE (MADHYA PRADESH)
.....APPELLANAT
(BY SHRI A.K. SAXENA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT.THRU.P.S.HEERA
NAGAR, INDORE (MADHYA PRADESH)
..... RESPONDENT
:2: CRA Nos. 1475/2012, 97/2013 & 186/2013
(BY SHRI BHASKAR AGRAWAL, GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 186 of 2013
Between:-
MITHUN @ DEEPAK S/O KAILASHCHAND VERMA , AGED
ABOUT 25 YEARS, GARIB NAWAJ COLONY CHHOTA BANGDADA
INDORE MP (MADHYA PRADESH)
.....APPELLANAT
(BY SHRI A.K. SAXENA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH PS HEERA
NAGAR (MADHYA PRADESH)
..... RESPONDENT
(BY SHRI BHASKAR AGRAWAL, GOVERNMENT ADVOCATE)
...........................................................................................................................
Reserved on : 25.03.2022
Delivered on : 25.06.2022
........................................................................................................
These Criminal Appeals coming on for judgment this day,
JUSTICE SUBODH ABHYANKAR passed the following:
JUDGMENT
01. This judgment shall also govern to disposal of Criminal
Appeal No.97/2013 filled by Appellant-Tarun s/o Manohar
Kashyap and Criminal Appeal No.186/2013 filed by Appellant-
Mithun @ Deepak s/o Kailashchchand Verma as all the three
appeals have arisen out of the same impugned judgment dated
10.12.2012 arising out of S.T.No.662/2008.
02. The appellants have preferred the present appeal under
:3: CRA Nos. 1475/2012, 97/2013 & 186/2013
Section 374 of Cr.P.C., being aggrieved by judgment dated
10.12.2012 passed by the XXI Additional Sessions Judge, Indore,
District- Indore in S.T. No.662/2008, whereby the appellants have
been convicted and sentenced them to undergo as under:-
Conviction Sentence
Section Act Imprisonment Fine Imprisonmen
Name of the t in lieu of
Appellants fine
302/120-B IPC Life 5,000/- 3 months SI
Pulkit @ Monu
S/o Vijay Patni
302/34 IPC Life 5,000/- 3 months SI
Tarun S/o
Manohar
Kashyap
302/34 IPC Life 5,000/- 3 months RI
Mithun @
Deepak s/o
Kailash Chandra
Verma
25(1-B) Arms 3 years R.I. 1,000/- 3 months RI
Act
03. In brief, the facts giving rise to the present appeal are that
case are that, the Appellant Pulkit @ Monu (hereinafter referred
as A-Pulkit) instigated the other appellants and hatched a
conspiracy to commit the murder of Ashok Bakdiya. As a result
of which, on 18.6.2008, the other co-accused persons murdered
the said Ashok Bakdiya by inflicting verious injuries with kitchen
knife and country made pistol. Appellant-Tarun (hereinafter as
referred A-Tarun) used kitchen knife, accused-Sandeep, whose
appeal has already been abated, used a knife and A-Mithun @
Deepak (hereinafter referred as A-Mithun) used a country made
pistol.
:4: CRA Nos. 1475/2012, 97/2013 & 186/2013
04. The aforesaid incident took place near Sukhaliya water
tank, Indore. The postmortem of the body was conducted by
P.w.17/ Dr.Murli Lalwani. During the course of investigation, the
names of the appellants surfaced, they were arrested and put to
trial and the learned Judge of the trial court, after recording the
evidence, has convicted the appellants and sentenced them as
hereinabove . Hence, this appeal.
05. Shri Vivek Singh, learned counsel appearing of the A-
Pulkit has submitted that it is purely a case of circumstantial
evidence and there is no direct evidence available on record to
connect the appellant with the offence. It is further submitted that
the conviction is based upon the testimony of three prosecution
witnesses viz; P.w.3/ Manish Sisodiya, P.w.4/ Salman @ Sachin
Chouhan and P.w.5/ Sonu @ Jitendra, who have admitted that
initially the A-Pulkit had asked them to finish the job of
murdering Ashok Bakdiya. and when they refused, the appellant
got it done through some other persons. Counsel has further
submitted that the aforesaid testimony cannot be accepted and
cannot be relied upon to convict the appellant as it has no sanctity
attached to it specially when these prosecution witnesses have
admitted that they were illegally detained in the police station for
4-5 days and only after they gave their statements to the police
that they were allowed to go. And, thus, their statements have
been procured by the police by applying unlawful methods. In
:5: CRA Nos. 1475/2012, 97/2013 & 186/2013
such circumstances, it is submitted by shri Singh that their
evidence is liable to be discarded. It is also submitted that even
otherwise there is no evidence available on record to suggest that
the A-Pulkit hatched a conspiracy with the other accused persons
to commit the murder of Ashok Bakdiya and thus, on this count
only the A-Pulkit is liable to be acquitted.
06. Counsel for the appellant has further submitted that so far
as the statements of P.w.8/ Asha Bagdiya, P.w.9/ Yogesh and
P.w.10/ Navneet are concerned, there are material omissions and
contradictions in their depositions and cannot be relied upon.
Counsel has further that even otherwise the allegations of
committing murder and infliction of injuries are against the co-
accused persons,viz., A-Tarun and Accused-Sandeep and there is
no such allegation against the present A-Pulkit. Hence, the
appellant is liable to be acquitted.
07. Shri Akhilesh Kumar Saxena, learned counsel appearing
for the A-Tarun and A-Mithun @ Deepak has submitted that their
case is on a better footing than that of A-Pulkit as there is no eye
witness account in the case and the appellants have been falsely
implicated in the case only on the basis of the memo prepared
under Section 27 of the Evidence Act. It is submitted that so far
as the P.w.2/ Surjeet Singh Bais and P.w.6/ Dinesh Jaiswal are
concerned, their statements have been recorded after three days of
:6: CRA Nos. 1475/2012, 97/2013 & 186/2013
the incident and the fact that the appellants were arrested on
18.6.2008, whereas the test identification parade took place on
23.9.2008, i.e., after a period of two months and seven days, it
clearly give rise to the reasonable doubt about the veracity of the
case of the prosecution as there is no explanation provided for
such delay in holding the test identification parade.
08. Counsel has also submitted that the deposition of P.w./18
Poornima Sindhi the Tehsildar, who is a witness to the test
identification parade also reveals that the witnesses P.w.2/ Surjeet
Singh Bais and P.w.6/ Dinesh Jaiswal had also come to the jail
for identification two days ago as well, hence the test
identification parade itself is vitiated and cannot be relied upon.
09. It is further submitted that the depositions of the P.w.3
Manish Sisodiya, P.w.4/ Salman @ Sachin Chouhan and P.w.5/
Sonu @ Jitendra and P.w.9/ Yogesh are concerned, they were
earlier arrested by the police even according to their own
statements, however, subsequently they were made witnesses in
the case and thus, their evidence cannot be relied upon as the
witnesses who have been pressurized by the police, to falsely
implicate the appellants. It is also submitted that seizure of the
weapon from the appellant is also doubtful. In such
circumstances, counsel has submitted that the appellants be
acquitted from the offence.
:7: CRA Nos. 1475/2012, 97/2013 & 186/2013
10. Shri Bhaskar Agrawal, learned Government Advocate for
the State, on the other hand, has opposed the prayer and it is
submitted that the learned Judge of the trial court has rightly
appreciated the evidence on record hence, no interference is
called for. Counsel has also submitted that there is no reason to
disbelieve the testimony of the P.w.3/Manish Sisodiya, P.w.4/
Salman @ Sachin Chouhan and P.w.5/Sonu @ Jitendra only
because they were detained by the police but in fact their
detention cannot be proved and a false defence is set up by the
accused persons for the reason that had it been a case of false
detention, the family members of the these three witnesses ought
to have taken some action against the police for illegal detention
of their sons which clearly indicates that there was no such
pressure employed by the police which led to their false
testimony. Counsel has further submitted that the testimony of
P.w.3/ Manish Sisodiya clearly reveals that he was a childhood
friend of the A-Pulkit and there is no reason to discard his
testimony, which appears genuine.
11. Heard the counsel for the parties and perused the record.
12. So far as the death of the deceased Ashok Bakadia is
concerned, the same was homicidal in nature, which is also
apparent from deposition of P.w.17/Dr. Murli Lalwani, who has
proved the postmortem report as Ex.P/32. In the postmortem
report Dr. Lalwani has found as many as 17 external injuries
including severe three head injuries. A gun shot injury on the
:8: CRA Nos. 1475/2012, 97/2013 & 186/2013
head as a bullet was also recovered from his skull, a deep chop
wound on left eyebrow running from his eye to nose, a deep
incised wound on the mandible measuring 8.7 cm x 2.7 cm and
various incised/stab wounds on all over the body and the cause of
death is said to be due to cumulative effect of the injures suffered
by the deceased.
13. So far as the culpability of the appellants is concerned,
P.w.2/ Surjit Singh Bais and P.w.6/ Dinesh Jaiswal are the eye
witnesses whose testimonies have to be scrutinized by this Court.
So far as P.w.2/ Surjit Singh Bais is concerned, according to him
he has also witnessed the incident and had also taken the deceased
to the Bhandari Hospital in a rickshaw. He has identified the
appellants vide test identification memo dated 23.9.2008 vide
Ex.P/3 in which he has identified A-Tarun S/o Manohar Kashyap
and A-Mithun @ Deepak. This is around three and half months
after the date of the incident. According to this witness, A-Tarun
assaulted the deceased with Khukhari, which is a sharp edged
Nepali knife and A-Mithun @ Deepak also assaulted with knife.
Although, he has identified accused Sandeep in the Court itself
saying that he could not identify him during the test identification
parade as at that time he had grown beard, but in the Court, when
he was clean shaven, he could identify him as well. In his cross-
examination, he has admitted that while taking the deceased to the
Hospital, his clothes were also drenched in blood, however, his
:9: CRA Nos. 1475/2012, 97/2013 & 186/2013
clothes were not seized by the police. In his cross-examination, he
has denied that the accused persons were shown to him prior to
the conduct of test identification parade. His attention is also
drawn to Ex.P/3 which is the test identification parade memo in
which it is mentioned that he has wrongly identified the accused
Sandeep and he has admitted that in the test identification parade
memo which was recorded after more than three and half months,
he has wrongly identified accused Sandeep, whereas after 9
months of the incident he has rightly identified him in the Court.
At this juncture, it would be pertinent to mention here that the
incident took place on 18.06.2008, A- Pulkit was arrested on
01.07.2008 whereas A-Tarun and A- Mithun @ Deepak were
arrested on 16.07.2008 and the test identification parade took
place on 23.09.2008 vide Ex.P/3. In his cross-examination, in
para 31, P.w.2/ Surjit Singh Bais has admitted that he had gone to
the jail on two occasions firstly after around 2 and half months of
the incident, but at that time the test identification parade could
not take place, however, during their subsequent visit the
identification took place and between the first and second time,
there was gap of around six days. He has admitted that Dinesh
had also accompanied him on that occasion also, however, as the
Executive Magistrate could not come, they had to come back
without identification. A suggestion has also been given to him
that on earlier occasion they were called unofficially to identify
the accused persons, and subsequently they had identified the
:10: CRA Nos. 1475/2012, 97/2013 & 186/2013
appellants during the test identification parade. He has also
admitted that the photographs of the persons to whom he was to
identify were not shown to him on earlier occasions and he had
identified the accused persons amongst around 23 other persons.
14. Similarly, P.w.6/ Dinesh Jaiswal, who is also an
eyewitness has identified accused persons vide Ex.P/5 wherein
also he has identified only appellants Tarun and Mithun @
Deepak, whereas he could not identify accused Sandeep.
Although, he has also identified Sandeep in the Court during the
dock identification on the similar ground that at the time of his
identification he had grown his beard, whereas the Sandeep had
fired a gun shot. Nothing substantial has been extracted by the
defence in the cross-examination of this witness.
15. So far as the FSL report Ex.P/42 is concerned, as in so
many other cases, in this case also the report is inconclusive as the
blood on the articles seized from the appellants was already
disintegrated.
16. P.w.1/ Chintu @ Gagan Bakadia happens to be the son of
the deceased Ashok Bakadia and had reached to the spot
subsequent to the incident. P.w.3/ Manish Sisodiya happens to be
an independent witness and according to him appellant A-Pulkit
@ Monu came to him prior to the date of the incident and asked
:11: CRA Nos. 1475/2012, 97/2013 & 186/2013
him to carry out recce of Ashok Bakadia as to what time he comes
and what time he goes and also told him that even he is arrested,
his family would get 10,000/- to 20,000/- rupees per month. At
that time P.w.5/ Sonu was also present on the spot, but they
refused to carry out such work for him and around 2-3 days
thereafter they came to know that Ashok Bakadia has been
murdered and as soon as he came to know about this news, it
occurred to him that A-Pulkit had also asked him to carry out
recce of the deceased Ashok Bakadia for him. He has admitted
that he and Sonu were kept in jail for around 5-6 days and Sonu is
still in jail. Although in his examination-in-chief he has admitted
that vide Ex.P/4, his police statement, A-Pulkit told him that he
wants to get rid of Ashok Bakadia to which he refused to work
for him. PW-5 Sonu, who is a witness to the request made by the
A-Pulkit to him and the other witness P.w.3/ Manish as he was
also present on the spot when the A-Pulkit had approached them
and asked them to finish Ashok Bakadia. He has also admitted
that Police had called him for a day and then left him, although he
has denied that he was kept in the police station for around 4-5
days. However, he has stated that he was kept only for one day,
whereas Manish and Sachin were kept for 4-5 days. He has also
been suggested that in his police statement he has not mentioned
that A-Pulkit had asked him indirectly to commit murder of
deceased Ashok Bakadia, but on perusal of his police statement
Ex.D/2 reveals that A-Pulkit told him and Manish P.w.3/Manish
:12: CRA Nos. 1475/2012, 97/2013 & 186/2013
to finish Ashok Bakadia to which they had refused.
17. P.w.8/ Asha Bagadia (Bakadia) happens to be the wife of
the deceased Ashok Bagadia (Bakadia), who has not supported
the case of the prosecution, who in her further examination has
stated that her husband had informed her about one and half years
ago regarding the dispute with A-Pulkit. In her cross-examination,
she has been suggested that her husband had purchased a school,
namely, Bharat Bal Vinay Mandir from Pawan Jain, Asha Jain,
Manish Rishi, Ashish Kaul, Deepak Kushwaha, Bunty Kethonees,
but substantial amount could not be paid to these persons as only
Rs.50 lakhs out of Rs.1,08,00,000/- (one crore eight lakhs) has
been paid to which she has admitted, however, she has feigned
ignorance that there was any dispute going on between the parties
in relation to further payment of Rs.58 lakhs.
18. P.w.9/ Yogesh is examined regarding involvement of the
A- Pulkit @ Monu as also A-Tarun S/o Manohar Kashyap and A-
Mithun @ Deepak. He is a hearsay witness and heard Pulkit,
Tarun and other 3-4 persons and were abusing Ashok Bakadia in
their conversation. P.w.10/ Navneet is said to have seen a dispute
between A-Pulkit and deceased in which A-Pulkit was slapped by
deceased Ashok Bakadia and at that time A-Pulkit had took out a
gun and had warned the deceased. However, no significance or
importance can be attached to this witness's testimony as he has
:13: CRA Nos. 1475/2012, 97/2013 & 186/2013
not even mentioned as to when did he see such conversation
between the deceased and the A-Pulkit. However, he has stated
that after this incident after around six months, Ashok Bakadiya's
murder was committed.
19. P.w.11/ Ramdas Morya is the property broker and was
also present on the spot when the incident took place and before
him a sum of Rs.42,450/- was recovered from the body of the
deceased along with one mobile phone and a spec. In his further
cross-examination he has denied that he was given the custody of
Nokia Mobile Phone and specs of Ashok Bakadia.
20. P.w.18/Purnima Sindhi, Naib Tehsildar, who is a witness
to the test identification parade conducted vide Ex.P/3 and Ex.P/5
and she has admitted that vide Ex.P/3 Surjit Singh Bais had
identified A-Tarun and A-Mithun @ Deepak whereas Dinesh
Jaiswal has identified A-Tarun and A-Mithun @ Deepak vide
Ex.P/5 and both these witnesses could not identify the third
accused Sandeep. She has been cross-examined extensively,
however, nothing incriminating could be elicited from her
testimony.
21. From the aforesaid evidence available on record, it can be
easily culled out that the involvement of the appellants, A-Pulkit,
A-Tarun and A-Mithun @ Deepak in the present case has been
:14: CRA Nos. 1475/2012, 97/2013 & 186/2013
proved by the prosecution beyond reasonable doubt. So far as the
case of A-Pulkit is concerned, there is no direct evidence evidence
available agaisnt him except the statements of P.w.3/Manish
Sisodiya and P.w.5/ Sonu who were admittedly restrained in the
police station for a couple of days before their statements under
Section 161 of Cr.P.C. were recorded, thus, their testimonies
cannot be given any credence in the absence of any tangible
material on record. However, on a close scrutiny of the evidence
on record, it is found that A-Pulkit @ Monu was arrested on
01.7.2008, whereas A-Tarun and A-Mithun @ Deepak were
arrested on 16.7.2008. A-Pulkit, in his memo proved as Ex.P/13
under Section 27 of the Evidence Act dated 01.7.2008, has named
inter alia, the accused-appellants A-Tarun and A-Mithun @
Deepak as the persons with whom he had conspired to commit the
murder of the deceased Ashok Bakadia.
22. Pursuant to the aforesaid memo, Ex.P/13. the police
arrested the appellants Tarun and [email protected] on 16.7.2008,
and subsequently, they were identified by P.w.2/ Surjeet Singh
Bais and P.w.6/ Dinesh Jaiswal on 23.9.2008. At this juncture, it
would also be apt to refer to the decision of the Supreme Court in
the case of Lal Singh v. State of U.P., (2003) 12 SCC 554, the relevant paras
of the same read as under:-
"28. The next question is whether the prosecution has
proved beyond reasonable doubt that the appellants are the
real culprits. The value to be attached to a test identification
:15: CRA Nos. 1475/2012, 97/2013 & 186/2013
parade depends on the facts and circumstances of each case
and no hard-and-fast rule can be laid down. The court has to
examine the facts of the case to find out whether there was
sufficient opportunity for the witnesses to identify the
accused. The court has also to rule out the possibility of their
having been shown to the witnesses before holding a test
identification parade. Where there is an inordinate delay in
holding a test identification parade, the court must adopt a
cautious approach so as to prevent miscarriage of justice. In
cases of inordinate delay, it may be that the witnesses may
forget the features of the accused put up for identification in
the test identification parade. This, however, is not an
absolute rule because it depends upon the facts of each case
and the opportunity which the witnesses had to notice the
features of the accused and the circumstances in which they
had seen the accused committing the offence. Where the
witness had only a fleeting glimpse of the accused at the
time of occurrence, delay in holding a test identification
parade has to be viewed seriously. Where, however, the
court is satisfied that the witnesses had ample opportunity of
seeing the accused at the time of the commission of the
offence and there is no chance of mistaken identity, delay in
holding the test identification parade may not be held to be
fatal. It all depends upon the facts and circumstances of each
case.
Xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx
30. Even though a plea was urged before the courts
below that the appellants had been shown to the witnesses,
there is no evidence on record which may deserve notice on
this aspect of the matter. It was submitted that the holding of
the test identification parade was delayed. The appellants
were arrested on 28-12-1980 and they were put up for
identification in a test identification parade on 4-2-1981. We
do not think that this delay can be said to be inordinate in the
facts and circumstances of this case. In any event, having
regard to the opportunity which the witnesses had to identify
the appellants, the possibility of mistaken identity must be
ruled out. We have very carefully perused the evidence of
PW 1 and PW 3 and we find that their evidence is
trustworthy and implicit reliance can be placed on their
testimony. We find no difficulty in acting on the
identification by these witnesses."
(emphasis supplied)
:16: CRA Nos. 1475/2012, 97/2013 & 186/2013
23. In the case in hand, it is also found that the deceased was
inflicted as many as 17 injuries on his person and thus, it is
apparent that the appellants Tarun and [email protected] stayed on
the spot for quite some time and in fact eye witnesses, Pw/2
Surjeet Singh Bais and P.w.6/ Dinesh Jaiswal also tried to
intervene but were stopped by the man with the gun, viz., accused
Sandeep, hence, it cannot be said that eye-witnesses P.w./2 Surjeet
Singh Bais and P.w.6/ Dinesh Jaiswal had a fleeting glimpse of
the appellants. So far as the earlier jail visit of these witnesses is
concerned, it is hardly of any relevance in the absence of any
material on record to show that the appellant's were shown to
them prior to their test identification on the fixed date. Thus, one
circumstance has led to the another and connecting the dots, a
priory the chain of events has been completed, clearly indicating
the involvement of the present appellants in commission of the
aforesaid offence.
24. In such circumstances, the infirmity in the statements of the
prosecution witnesses as have been pointed out by the counsel for
the appellants is minor in nature and does not falsify the case of
the prosecution. The
25. Resultantly, the impugned judgment dated 10.12.2012
passed by the learned Judge of the trial court is here by upheld
and the sentence and conviction so awarded to the appellants
:17: CRA Nos. 1475/2012, 97/2013 & 186/2013
standsaffirmed and all the Criminal appeals stand dismissed.
Since A-Pulkit's jail sentence has already been suspended by this
Court vide order dated 25.4.2013, his bail bonds stand cancelled.
He is directed to surrender before the concerned trial court within
two weeks time to serve the remaining part of his sentence.
26. Original copy of this judgment be kept in Criminal Appeal
No.1475/2012 and a copy thereof be placed in Criminal Appeal
Nos. 97/2013 and 186/2013.
(Subodh Abhayankar) (Satyendra Kumar Singh)
JUDGE JUDGE
moni
Digitally signed by MONI RAJU
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INDORE, ou=JUDICIAL, postalCode=452001, st=Madhya
MONI RAJU
Pradesh,
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80aeba7af5a5244844c1,
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D1,
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Date: 2022.06.15 17:31:45 +05'30'
