Vijay vs The State Of Madhya Pradesh
2022 Latest Caselaw 8615 MP

                                  - : 1 :-
         IN THE HIGH COURT OF MADHYA PRADESH
                              AT INDORE
                                BEFORE
                HON'BLE SHRI JUSTICE VIVEK RUSIA
                                     &
        HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)

                       ON THE 29th OF JUNE, 2022

                CRIMINAL APPEAL No. 704 of 2014

  Between:-
   VIJAY S/O MOHANLAL JHARIYA, AGED ABOUT 25 YEARS,
1. OCCUPATION: NOT MENTIONED, VILLAGE MAJHGAWA, P.S. PATAN
   DISTRICT JABALPUR (MADHYA PRADESH)
   RADHESHYAM S/O MATHURAPRASAD BRAHMAN , AGED ABOUT 37
2. YEARS, GRAM MAJHGAWA,THANA PATAN, DIST. JABALPUR
   (MADHYA PRADESH)
   DHARMENDRA @ BINDA S/O GAYAPRASAD BHADORIYA(CHAMAR ,
3. AGED ABOUT 24 YEARS, ERORA, THANA SAHPURA DIST. JABALPUR
   (MADHYA PRADESH)
                                                           .....APPELLANT
  (SHRI NIPUN CHOUDHARY, LEARNED COUNSEL FOR THE
  APPELLANTS.)

  AND

  THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER THRU.
  P.S. PITHAMPUR DHAR (MADHYA PRADESH)
                                                       .....RESPONDENTS
  (SHRI BHASHKAR AGRAWAL, LEARNED GOVT. ADVOCATE FOR THE
  RESPONDENT/STATE.)
                           JUDGMENT

PER VIVEK RUSIA, J:-

Today, this appeal is listed on I.A. No.2803/2022 application for suspension of sentence filed by the appellant but with the consent of both the parties, this criminal appeal is heard finally.

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The appellants have filed this present criminal appeal being aggrieved by the judgment dated 31.01.2014 passed by Second Additional Sessions Judge, Dhar in Sessions Trial No.393/2012 whereby they have been convicted as below:-

Section Act Imprisonment Fine if deposited Details 302 IPC Life Rs.3,000/-

Imprisonment 201 IPC 7 years R.I. Rs.2,000/-

394/397 IPC 7 years R.I. Rs.2,000/-

As per the prosecution story, on 20.06.2012 near about 7:00 AM informant Rakesh Singh went to the house of his uncle situated at B-145, Chatrachaya Colony, Pithampur, Dhar and found a gathering of people in front of the house, he saw that his aunt Smt. Anita Singh wife of the appellant was hanging from the window. He gave this information to police station Pithampur where it was registered at Merg No.17/2012 under section 174 of Cr.P.C. Sub-Inspector K.R. Patil reached the spot and called the five witnesses by issuing a Safina form Exhibit-P/16 and thereafter he prepared the Nakshapanchayatnama Exhibit-P/15 and spot map Exhibit-P/31 thereafter sent the dead body for postmortem. As per the autopsy report, the death was caused by strangulation of the neck. According, to merg no.68/2012 was recorded. After the merg investigation, the FIR was at crime No.0167/2012 was registered on 29.06.2012 under section 302, 394, 201 of the IPC Exhibit-P/32 against unknown persons and in continuation the FIR at Pithampur Station was registered at crime No.329/2012 on 01.07.2012 Exhibit-P-28. It has been revealed in the investigation that the husband of the deceased Uttam Singh was having a contract of manufacturing plastic granules. The deceased used to work in the said factory. Uttam Singh had a dispute with Vijay, Radheshyam and Dharmendra (appellants) who were residents of the nearby villages. The police arrested them on 11.07.2012 and

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interrogated them they admitted the crime committed by them. According to them on 19.06.2012 they went to the house of the deceased planning to commit murder. They cooked the chicken and consume the liquor near the house of the deceased thereafter when Smt. Anita Singh was sleeping as planned they strangulated her neck and thereafter they hanged her projecting it a suicide case. They have also admitted to looting her jewellery, and mobile phone. On their disclosure police have recovered the stolen articles. The fingerprint expert was called and took the chance fingerprints. The police sent the visara for the FSL report. The looted articles were identified by Uttam Singh. The police recorded the statement of the witnesses and after completing the investigation the charge sheet was filed against these appellants under sections 302, 201 and 394 of the IPC.

The trial was committed to the session court on 10.10.2012. The charges were framed against the appellants which they denied and pleaded for trial. The prosecution examined 16 witnesses and exhibited 47 documents. In defence, the appellants did not examine any witness and pleaded innocent. After evaluating the evidence that came on record all the three appellants have been convicted under section 302/34 of the IPC and sentenced to undergo Life Imprisonment with a fine of Rs.3,000/- and under section 201 of the IPC sentenced to undergo 7 years R.I. with fine of Rs.2,000/- and section 394.397 of the IPC sentenced to undergo 7 years R.I. with fine of Rs.2,000/-. Hence this appeal before this court.

We have heard the learned counsel for the parties and perused the record and examined the evidence.

The police came up with the prosecution story that these appellants came from Jabalpur to Pithampur to work in the factory of Uttam Singh. Uttam Singh used to pay the rent for their house. On the date of the incident, Uttam Singh went to Goregaon to attend the marriage.

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Sometimes ago these appellants demanded money from him which he denied. The financial condition of the appellants was weak therefore, to the outcome of their financial crunches they looted the deceased and thereafter committed the murder. To prove the motive of the loot and murder the best evidence could have been given by the husband of the deceased who has been examined as P.W.-1. According to him, he received a phone call from Vijay that his wife Anita (madam) is lying on a bed and the door is locked and out of fear he is unable to enter the house. He instructed him to call the Shantibai thereafter, he was called Sandeep and Viru. They informed us that somebody has murdered his wife. The matter was reported to the police and he came back from Gotegaon and cremated the dead body on 21.07.2012. The police searched his house and found that the jewelry of his wife are missing. He identified the jewelries. Accordingly to him, he had a doubt about Radhesshyam and Vijay. Thereafter, he has been declared a hostile witness. Therefore he did not say anything about enmity with appellants. In cross-examination, he admitted that the deceased was his second wife and his first wife is residing at Gotegaon. In the cross-examination, he specifically denied that he was having any dispute with the accused persons on any issue. He did not even go to Pithampur to receive the dead body of the deceased.

Sandeep Kumar Rajak P.W.-2 has only stated that the deceased organized a party with these appellants near the house of Uttam Singh P.W.-1 and thereafter on the next day morning Rampujan Singh P.W.-4 informed that madam is lying dead on the bed. So far, the recovery of looted articles are concerned he has completely denied the preparation of seizure memos and turned hostile. Rakesh P.W.-3 and Rampujan Singh P.W.-4 have also been declared hostile. Ramnarayan P.W.-7 seizure witness of mobile has also turned hostile. Only Shivani Panday, P.W.-9 Tehsildar has supported the case of the prosecution in respect of the

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identification of the looted articles by the husband of the deceased i.e. Uttam Singh P.W.-1. Therefore, the prosecution has failed to prove beyond reasonable doubt that these appellants have murdered Anita. Except for the recovery of looted articles from their possession nothing does not sufficient to establish the charge of section 302 of the I.P.C. against appellants. Even if these appellants consumed chicken and liquor near the house of P.W.-1 and the deceased was with them is sufficient to establish the complicity of these appellants and to convict them under section 302 of the IPC. The fingerprint expert has not given any report to establish the presence of these appellants in the house of the deceased. Therefore, their conviction under section 302 of the IPC is not liable to be sustained, in view of the law laid down by the Apex Court in the case of Tulesh Kumar Sahu Vs. State of Chhattisgarh report in the year 2022 Law Live SC 228 (Criminal Appeal No.753/2021 dated 24.02.2022) the Apex Court has held that no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance where the only evidence against an accused person is the recovery of stolen property and although the circumstances may indicate that the theft and the murder must have been committed at the same time, it is not safe to draw the inference that the person in possession of the stolen property was the murdered. Suspicion cannot take the place of proof.

Therefore, even if the stolen property has been recovered at the instance of the present appellants it would not be presumed that they have committed the murder of the deceased Anita wife of P.W.-1 and thereafter looted the property. Therefore, the conviction under section 302 of the IPC is hereby set aside. Consequently, the conviction resultantly under section 201 of the IPC is also set aside.

The looted articles were recovered from these appellants or at the disclosure of these appellants and Uttam Singh husband of the deceased has identified them. The appellants have not claimed their ownership and

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did not lead any evidence that these stolen articles belong to them therefore, conviction under section 394/397 of the IPC is hereby upheld.

Since the appellants have completed seven years of the jail sentence, therefore, they are released if not required in any other case.

With the aforesaid, the criminal appeal is partly allowed.

              (VIVEK RUSIA)                                        (AMAR NATH (KESHARWANI))
                  JUDGE                                                     JUDGE
  Ajit/-



AJIT
           Digitally signed by AJIT KAMALASANAN
           DN: c=IN, o=HIGH COURT OF MADHYA
           PRADESH BENCH INDORE, ou=HIGH COURT
           OF MADHYA PRADESH BENCH INDORE,



KAMALA
           postalCode=452001, st=Madhya Pradesh,
           2.5.4.20=156c9cedca1b74d671db9f220a5e3
           ed6cba241effad892107d95ef0a1afc55b4,
           pseudonym=CFDFD9C36711CA738F527A5D
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           7441C87E7E0817FB61F5E2ABCAEE63CAAA7
           B3B9FF, cn=AJIT KAMALASANAN
           Date: 2022.07.04 18:16:02 +05'30'