Madhya Pradesh High Court
Satish vs State Of Mp on 23 November, 2022
Author: Subodh Abhyankar
1
Cr.A. No.1178/2014 & 1211/2014
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 23rd DAY OF NOVEMBER, 2022
CRIMINAL APPEAL No. 1178 of 2014
BETWEEN:-
ANIL S/O CHATAR SINGH PRAJAPAT, AGED ABOUT 26
YEARS, R/O 10-B, VAIBHAV NAGAR, KANADIA ROAD, P.S.
KHAJRANA, DISTT. INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI Z.A.KHAN, SENIOR COUNSEL WITH SHRI ASHOK
KUMAR VERMA)
AND
THE STATE OF MADHYA PRADESH THROUGH P.S.
PALASIA, DISTT. INDORE (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A.S. SISODIYA, GOVT. ADVOCATE)
CRIMINAL APPEAL No. 1211 of 2014
BETWEEN:-
SATISH S/O SOHANLAL BAGORA FLAT NO. S-3, NEW
INDIA HOUSE, 457- GOYAL NAGAR, DISTT. INDORE
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI ATUL JAISWAL)
AND
STATE OF M.P. THRU P.S. PALASIA, DISTT INDRORE
1.
(MADHYA PRADESH)
2. ANIL (IN JAIL) S/O CHATAR SINGH PRAJAPAT, AGED
ABOUT 26 YEARS, OCCUPATION: KIRANA SHOP, R/O 10-B,
2
Cr.A. No.1178/2014 & 1211/2014
VAIBHAV NAGAR, KANADIA ROAD, DISTT. INDORE M.P.
(MADHYA PRADESH)
PRAVEEN BHOI S/O LILADHAR, R/O 39-B, KAHAR BHOI
3. BADA, UDAIPUR CITY, UDAIPUR (RAJASHTHAN)
.............(NOW DEAD)
.....RESPONDENTS
(BY SHRI A.S. SISODIYA, GOVT. ADVOCATE)
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Reserved on : 08.09.2022
Delivered on : .11.2022
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These appeals coming on for judgment this day, JUSTICE
SATYENDRA KUMAR SINGH passed the following:
JUDGMENT
Satyendra Kumar Singh, J.,
Both the above appeals arise out of a common judgment,
therefore, these are being decided by a common judgment.
Appellant- Anil has filed appeal bearing CRA No.1178/2014,
under Section 374(2) of the Code of Criminal Procedure, 1973 (2 of
1974) [in short Cr.P.C.], against the judgment dated 22.07.2014, passed
by the Court of 1st Additional Sessions Judge, Indore, in S.T. No.
674/2012, whereby he alongwith co-accused Praveen Bhoi (now dead)
has been convicted for the offences punishable under Sections 302 r/w
34 and under Section 394 r/w 397 of Indian Panel Code, 1860 (in short
'IPC') and sentenced to undergo life imprisonment with fine of
Rs.500/-, in default of payment of fine additional rigorous
imprisonment for one month and RI for 10 years with fine of Rs.500/-,
in default of payment of fine additional rigorous imprisonment for one
Cr.A. No.1178/2014 & 1211/2014
month respectively.
Appellant Satish Bagora (Complainant) has filed appeal bearing
CRA No.1211/2014, under Section 372 of Cr.P.C. against the same
judgment dated 22.07.2014, passed by the Court of 1 st Additional
Sessions Judge, Indore, in S.T. No. 674/2012 for enhancement of
sentence awarded to the appellant from life imprisonment to death
penalty.
2. Prosecution story in brief is that:
(i) On 17.02.2012 at about 19:55 hours, during routine area
checking, Constable Taj Mohammad saw a dead body of an unknown
person in scheme No.140, Indore. He informed about the same to SI
Y.S. Sengar at Police Station Palasia, who rushed to the spot and at
about 20:15 hours, on the basis of information given by the Constable
Taj Mohammad, recorded Dehatinalsi Merg Intimation report (Ex. P-
19) at zero and sent the same to P.S. Palasia, where on the same day at
about 20.50 hours, Merg Intimation report bearing No.07/12 under
Section 174 of Cr.P.C. was registered about the death of the deceased.
SI Y.S. Sengar recovered a slip bearing Seal and phone number of
'Manju Tent House' (Ex. P-23) and on the basis of which, he informed
Satish Bagora about the incident, who came on the spot and identified
the dead body as that of his son Vinay Bagora.
(ii) On the same day at about 21.00 hours, on the basis of statements
made by the deceased's father- complainant Satish Bagora, SI Y.S.
Sengar recorded Dehatinalsi report (Ex. P-4), on the basis of which at
about 22.20 hours, FIR bearing Crime No.148/12 (Ex. P-27) was
registered, against unknown person at P.S. Palasia. SI Y.S. Sengar
called the witnesses issuing Safinaform (Ex. P-1) and prepared
Nakshapanchayatnama (Ex. P-2) of the dead body of the deceased and
Cr.A. No.1178/2014 & 1211/2014
sent the same to M.Y. Hospital for postmortem examination vide
application (Ex. P-22). He prepared spot map (Ex. P-3), seized and
sealed an empty 180 ml.(quarter) bottle of foreign liquor - McDowell
Rum (Article- E), one big size plastic disposable glass (Article- F),
blood stained iron hammer, blood stained wooden pieces of the handle
of a hammer, one blood stained gold ring, one blood stained knife, one
sweater, plain and blood soaked soil from near the place of incident as
per seizure memo (Ex. P-5).
(iii) On 18.02.2012 at about 10.55 hours, Dr Sanjay Kumar Dadu
conducted the postmortem of the dead body of the deceased and found
in all about 88 injuries on all over his body. He prepared postmortem
report (Ex. P-28) and opined that the injuries found on the body of the
deceased were caused by hard, sharp and penetrating object and his
death was caused due to shock and hemorrhage as a result of stab
injuries to the thoracic-abdominal region within 24 hours since
postmortem examination and was homicidal in nature. He collected and
sealed deceased's clothing having cut marks and heavily stains with
blood, alongwith other articles and handed over the same to the police
constable, who brought him to the hospital.
(iv) During investigation, vide letter no.148/12 dated 18.02.2012,
seized articles empty 180 ml.(quarter) bottle of foreign liquor -
McDowell Rum (Article- E), plastic disposable glass (Article- F) and
blood stained knife were sent to the Finger Print Expert, Indore. Since
appellant Anil and deceased were friends and location of the appellant's
mobile phone was found near the place of incident and before incident,
he had made calls to the deceased, through his mobile phone no.
8085208792 on deceased's mobile phone no. 9009058555. Therefore,
on 23.02.2012, he was interrogated and arrested as per arrest memo
Cr.A. No.1178/2014 & 1211/2014
(Ex. P-13) alongwith other co-accused Praveen Bhoi (now dead). Their
finger prints (Ex. P-30 & P-31) were taken and sent to Finger Print
Expert, Indore.
(v) On the same day, i.e. 23.02.2012, at about 13.50 hours, disclosure
statements (Ex. P-16) of the appellant Anil were recorded, wherein he
disclosed about the deceased's black purse, ATM card, Driving license,
photographs alongwith other articles. On the basis of which, on
24.02.2012 at about 17.50 hours, on his instance a black purse
containing deceased's ATM card, Driving license and two photographs
alongwith other articles were seized from appellant's bag kept in the
office of Hotel Vishal as per seizure memo (Ex. P-6A). All the above
seized articles were kept and sealed in two envelops. Register Entry
(Ex. P-11) of the above hotel alongwith copy of appellant- Anil's PAN
card (Ex. P-12), given by him to the hotel as his ID proof was seized
from the Manager- Somdatt as per seizure memo (Ex. P-8), wherein at
serial number 842 entry with regard to the stay of the appellant- Anil
and co-accused, on the date of incident, at the hotel was made.
(vi) On the same day i.e. 23.02.2012 at about 13.15 hours, co-accused
Praveen Bhoi (now dead) in his disclosure statements (Ex. P-15), made
disclosure about deceased's gold chain and on the basis of which, on
24.02.2012 at about 18.15 hours, on his instance a gold chain and a
mobile phone alongwith other articles were seized from his bag kept in
the office of Hotel Vishal as per seizure memo (Ex. P-7A). The seized
gold chain and a mobile phone were kept and sealed in an envelop. On
the same day at about 18.55 hours, on the instance of appellant- Anil
and co-accused, deceased's black pulsar motor cycle was also seized
from a passage near Hotel Vishal. On 14.03.2012 at about 13.00 hours,
identification proceeding of the seized gold chain and black purse was
Cr.A. No.1178/2014 & 1211/2014
conducted by the Executive Magistrate, wherein complainant Satish
identified both the articles as that of his son deceased's gold chain and
purse as per identification memo (Ex. P-7).
(vii) Call details (Ex. P-20) of the mobile phone of appellant and call
details (Ex. P-35) of the mobile phone of deceased were obtained from
the concerned service providers. Finger Print Expert's Report (Ex. P-
32) was obtained, wherein finger prints found on the seized empty 180
ml.(quarter) bottle of foreign liquor - McDowell Rum (Article- E) were
identical to that of appellant- Anil's finger prints (Ex. P-30) and finger
prints found on the plastic disposable glass (Article- F) were identical
to that of co-accused Praveen Bhoi's finger prints (Ex. P-31). Vide letter
dated 13.03.2012 (Ex. P-24), the seized articles were sent to FSL Sagar
for chemical examination. Thereafter, FSL report ((Ex. P-26) was
obtained and after completion of investigation charge-sheet was filed
before the Court of JMFC, Indore, who committed the case to the Court
of Additional Sessions Judge, Indore.
3. Learned Trial Court considering the material prima-facie
available on record, framed the charges under Sections 302, in
alternative 302 r/w 34 and 394 r/w 397 of IPC against the appellant-
Anil and co-accused, who abjured their guilt and prayed for trial.
4. Learned Trial Court after appreciating the oral as well as
documentary evidence available on record, convicted the appellant -
Anil for the offences punishable u/S 302 r/w 34 and 394 r/w 397 of IPC
and sentenced him as stated in para 1 of this judgment. Being aggrieved
with the said judgment of conviction and order of sentence, appellant
has preferred this appeal for setting aside the impugned judgment and
discharging them from the charges framed against him.
5. Learned counsel for the appellant- Anil submits that admittedly,
Cr.A. No.1178/2014 & 1211/2014
appellant and deceased were friends, therefore, call details showing
conversation between the appellant and deceased are of no relevance.
Finger Prints, said to be found on the bottle, were obtained after the
arrest of the appellant. Prosecution has failed to prove that the finger
prints found on the above bottle could not be tampered with before the
same was sent to finger print expert. Hence, inference drawn against the
appellant is not sustainable. He relied upon the judgment passed by the
Apex Court in the case of Mohd. Aman & another Vs. State of
Rajasthan [1997 SCC (Cri) 777]. Seizure of deceased's purse from the
possession of the appellant has not been proved, as the same alongwith
other articles were seized from the office of Hotel Vishal from the
possession of the manager of the above hotel. Moreover, recovery of
articles itself is not sufficient to hold the appellant guilty, as held by this
Court in the case of Madan vs. State of MP 2014(2)MPHT 250(DB).
There is nothing else against the appellant- Anil. On the date of
incident, he was not present in Indore and had gone to Jodhpur to
attend a marriage. Prosecution case is based on circumstantial evidence,
wherein motive to commit offence is required to be proved as held by
C.G. High Court in the case of Ram Kumar vs. State of Chhatisgarh
[2014 (II) MPJR- CG 21]. Prosecution has totally failed to prove that
the appellant was having any motive to commit the murder of the
deceased. He cannot be convicted only on the basis of suspicion as held
by the Apex Court in the case of Uppala Bixam vs. State of AP
[2019(3) MPLJ (Cri) (SC) 524] 777]. Thus, the impugned judgment
convicting the appellant may be set aside and he may be acquitted from
the charges framed against him.
6. Learned counsel for the complainant Satish Bagora submits that
Cr.A. No.1178/2014 & 1211/2014
the appellant Anil and deceased were childhood friends, even then he
after calling the deceased brutally murdered him in planned manner,
which shows his criminal intent. The weapons; i.e. hammer and knife,
used in the crime and also the number and nature of the injuries found
on the body of the deceased, makes the case rarest of the rare, wherein
death penalty must be imposed upon the appellant. Therefore, sentence
awarded to the appellant may be increased from life imprisonment to
death penalty.
7. Per contra, learned Public Prosecutor for the respondent-State
while supporting the impugned judgment of conviction and order of
sentence submits that the judgment was passed by the Trial Court after
proper appreciation of evidence available on record. The same is well
reasoned establishing the guilt of appellant beyond reasonable doubt.
Therefore, confirming the impugned judgment of conviction and order
of sentence, the appeal filed by the appellant may be dismissed.
8. We have heard learned counsel for the parties at length and
perused the record.
9. Prosecution case is based on circumstantial evidence and
prosecution in its support has examined in all 21 prosecution witnesses
including deceased's brother Yogendra Bagora (PW-1), his father Satish
Bagora (PW-2) and Sumit Dhuliye (PW-6), who reached the spot after
receiving the information about the death of the deceased and identified
his dead body. Other relevant witnesses are Sondatt (PW-5), manager of
Hotel Vishal, where appellant alongwith co-accused stayed on the date
of incident and from where appellant's bag containing deceased's purse,
ATM card, driving license and gold chain were seized, Constable Taj
Mohammad (PW-1), who saw the dead body of the deceased first time,
Dr.S.K. Dadu (PW-19), who conducted the postmortem examination of
Cr.A. No.1178/2014 & 1211/2014
the deceased's dead body, Saidatt Bohre (PW-13), Nodal Officer, Airtel
Telecom company, who proved the call details of the appellant's mobile
phone no. 8085208792, Rajesh Kumar Singh (PW-13), Nodal Officer,
Idea Telecom Company, who proved the call details of the deceased's
mobile phone no. 9009058555, Executive Magistrate - Purnima Sindhi
(PW-16), who conducted the identification proceedings of seized purse
and gold chain, finger print expert K.K. Dwivedi (PW-20), who found
the appellant's finger prints identical to the chance finger prints found
on the bottle, seized from the spot, SI Y.S. Sengar (PW-15), who lodged
the Dehati Nalisi report, seized the articles from the spot and partly
investigated the matter.
10. In the instant case, prosecution relied upon the following
circumstances to connect the appellant- Anil with the offence alleged
against him :-
(i) Appellant- Anil was childhood friend of the deceased
Vinay Bagora.
(ii) On the date of incident i.e. 17.02.2012, appellant and
co-accused had stayed at Hotel Vishal.
(iii) On the date of incident just before the incident at 06:22
PM and 06:40 PM, appellant called the deceased from his
mobile no. 8085208792 on deceased's mobile no.
9009058555.
(iv) Chance finger print bearing Mark 'A', found on the
empty bottle of foreign liquor Mcdowell Rum, seized from the
spot, was found identical to appellant's right hand middle
finger print bearing mark S-1.
(v) On 24.02.2012, deceased's black colour purse
containing his ATM card, driving license and two photographs
Cr.A. No.1178/2014 & 1211/2014
were seized, in pursuance of appellant's disclosure statements
from his possession.
11. Deceased's brother Yogendra Bagora (PW-1) deposed that on the
date of incident i.e. on 17.02.2012, his brother deceased- Vinay was
sleeping at his house and at about 06:00 PM, he after receiving a call
on his mobile phone, went from his house by his black colour Pulsar
motor cycle to meet someone. Constable Taj Mohd. (PW-15) deposed
that when he alongwith Constable Abhishek was roaming in the area for
routine checking, he saw a dead body lying on the mid road in Scheme
No.140, Indore. He deposed that he informed about the above dead
body to mobile van, on which SI Y.S. Sengar rushed to the spot and
recorded dehatinalsi merg intimation report (Ex.P-19) on the basis of
information given by him.
12. SI Y.S. Sengar (PW-15) also stated so and deposed that during
inquest proceedings he recovered a slip bearing Seal and phone number
of 'Manju Tent House' (Ex. P-23) and on the basis of which, he
informed Satish Bagora about the incident, who came on the spot and
identified the dead body as that of his son Vinay Bagora. Complainant
Satish Bagora (PW-2) made similar statements and deposed that on the
date of incident at about 08:30 P.M., some police officials came to his
house and showing his son's photograph asked about him. They took
him to Scheme No.140, Indore, where he saw the dead body of his son-
Vinay Bagora, lying on the road.
13. SI Y.S. Sengar (PW-15) deposed that on the complaint made by
the deceased's father, he lodged dehatinalsi report (Ex. P-4) and
prepared nakshapanchayatnama (PW-2) of the dead body of the
deceased in the presence of deceased's father complainant Satish and
other witnesses and vide application (Ex. P-22), sent the same for
Cr.A. No.1178/2014 & 1211/2014
postmortem examination. Dr. S.K. Dadu (PW-19) deposed that on
18.02.2012 i.e. on next day of the incident, he conducted the
postmortem examination of the dead body of deceased- Vinay Bagora at
M.Y. Hospital and found following injuries on his dead body:
(1) Four Stab incised wounds on his chest and abdomen
anteriorly on right side.
(2) Four Stab incised wounds on his chest and abdomen
anteriorly on left side.
(3) Eighteen Stab incised wounds on right side of his back.
(4) Forty four Stab incised wounds on left side of his back.
(5) One Incised wound on chest left side anteriorly.
(6) One Stab incised wound on left arm posteriorly.
(7) One Stab incised wound on left shoulder posterio laterally.
(8) 5 Multiple abrasions on right elbow, chest, face, right malar
region and head.
(9) 10 Lacerated wounds on forehead and all over his head.
Dr. S.K. Dadu (PW-19) deposed that all the above injuries
found on the body of the deceased were caused by hard, sharp
and penetrating object. He stated and reported in his postmortem
report (Ex. P-28) that the death of the deceased was caused due
to shock and hemorrhage as a result of stab injuries to the
thoracic-abdominal region within 24 hours since postmortem
examination and his death was homicidal in nature.
14. Appellant has not challenged the aforesaid fact, therefore, this
fact is established that on the date of incident at about 05:00 to 06:00
PM, after receiving a telephonic call, deceased- Vinay Bagora left his
house and thereafter at about 08:00 PM his dead body was found lying
on the road in Scheme No.140, Indore. This fact is also established that
Cr.A. No.1178/2014 & 1211/2014
he was assaulted by hard, sharp and penetrating object and sustained
about 88 injuries on all over his body as mentioned in his postmortem
report (Ex. P-28), he died due to shock and hemorrhage as a result of
stab injuries to the thoracic-abdominal region and other vital parts of
the body and his death was homicidal in nature. The number, nature and
part of the body, where the injuries were caused, also established that
the aforesaid injuries were caused with an intent to commit murder of
the deceased Vinay.
15. So far as the issue whether the aforesaid injuries found on the
body of the deceased were caused by the appellant alongwith co-
accused Praveen (now dead) is concerned, Complainant Satish Bagora
(PW-2) deposed that his son- deceased Vinay and appellant Anil were
studying together in Saraswati Shisu Mandir from class 5 th to class 10th
and were school day's friends. Appellant in his statement recorded
under Section 313 of Cr.P.C., has himself admitted the aforesaid facts.
Hence, this fact is not disputed that the deceased and appellant were
friends and were known to each other.
16. Manager of the Hotel Vishal - Somdatt (PW-5) deposed that on
15.02.2012 at about 9.00 hours, appellant Anil Prajapati and co-accused
Praveen Bhoi came to his hotel and had given photocopy of the PAN
card (Ex. P-12) of appellant Anil, at the time of check-in into the hotel.
He deposed that appellant Anil had made entries (Ex. P-11) in the
register of the hotel mentioning his mobile number as 8085208792. He
deposed that the appellant alongwith co-accused had stayed in the
Room No.305 of his hotel since 15.02.2012 to 17.02.2012. He
specifically deposed that on 17.02.2012, i.e. on the date of incident at
about 04:00 PM, appellant and co-accused went out from the hotel and
returned in the night and thereafter, at about 11:00 PM, they again left
Cr.A. No.1178/2014 & 1211/2014
the hotel saying that they will be roaming around the hotel, but they did
not return back to the hotel. He deposed that on next day, i.e.
18.02.2012, he kept their bag in the locker of the hotel and on
24.02.2012, when police took appellant and co-accused at his hotel, he
identified them and handed over their bag to them.
17. During cross-examination of Somdatt, it has nowhere suggested
to him, on behalf of the appellant, that the appellant did not stay in his
hotel and also that the bag, said to be seized from his hotel, was not
appellant's bag. Appellant Anil in his statement recorded under Section
313 of Cr.P.C., stated that he checked-in and stayed at the aforesaid
hotel either on 11.02.2012 or on 12.02.2012, and not on 15.02.2012.
But during cross-examination of Somdatt (PW-5), it has specifically
been suggested on behalf of him, that he left the hotel on 16.02.2012,
instead of 17.02.20122. It has also been suggested that on the instance
of police, appellant's bag was kept in the hotel and thereafter, the same
was handed over to the police.
18. Since the statements of the appellant with-regard to the date of
his check-in in the hotel and period of his stay in the hotel is contrary to
the suggestions given on behalf of him, and this fact has not been
denied by him that the bag recovered from the hotel was his own bag.
Therefore, there is no reason to disbelieve the statements made by the
manager of the hotel Somdatt (PW-5), which is supported by the entries
of the register of the hotel (Ex. P-11), that the appellant had stayed in
the Room No.305 of the aforesaid hotel since 15.02.2012 to
17.02.2012. Somdatt (PW-5) appears to be an independent witness,
therefore, this fact is also established that on 17.02.2012, i.e. on the
date of incident at about 04:00 PM, appellant alongwith co-accused
went out from the hotel and returned in the night and thereafter, at
Cr.A. No.1178/2014 & 1211/2014
about 11:00 PM, they left the hotel again saying that they will be
roaming around the hotel, but they did not return back to the hotel and
thereafter, their bags were recovered from the hotel.
19. Nodal Officer of Airtel Telecom Company- Saidatt Bohre (PW-
13) deposed that Airtel SIM No.8085208792 was issued from his
company in the name of appellant as shown in the call details (Ex. P-
20), produced by him. Appellant in his statement recorded under
Section 313 of Cr.P.C., stated that his aforesaid mobile phone was
missing prior to the incident, but he neither himself in his statement
recorded u/S 313 of Cr.P.C. has stated anything about the place, date
and time as to where and when his aforesaid mobile SIM went missing,
nor has suggested anything during the cross-examination of nodal
officer of aforesaid Airtel Company - Saidatt Bohre. He has not
produced any documentary evidence in this regard in his defense.
Therefore, there remains no doubt that appellant had purchased the
aforesaid Airtel SIM bearing no. 8085208792 and was using the same
at the time of incident.
20. Nodal Officer of Idea Telecom Company- Rajesh Kumar Singh
(PW-10) deposed that the mobile SIM bearing no. 9009058555 was
issued by his company in the name of deceased Vinay Bagora and as
per the call details (Ex. P-35) of the aforesaid mobile SIM, on
17.02.2012 i.e. on the date of incident, three calls were received on the
aforesaid mobile SIM bearing no. 9009058555 from SIM bearing no.
8085208792, while one call was made from mobile SIM bearing no.
9009058555 to SIM bearing no. 8085208792. Nodal Officer of Airtel
Telecom Company- Saidatt Bohre (PW-13) has also stated so and has
produced call details (Ex. P-20) of the appellant's SIM bearing no.
8085208792. From the statements of both the above witnesses and also
Cr.A. No.1178/2014 & 1211/2014
call details produced by them, it is established that on the date of
incident, appellant had made 3 calls on the mobile phone of the
deceased. First call was made at 12.38.57 pm., second call was made at
03.49.32 pm., and third call was made just before the incident at
06.35.44 pm.
21. SI Y.S. Sengar (PW-15) deposed that on the date of incident at
about 21:45 PM, he seized and sealed an empty 180 ml.(quarter) bottle
of foreign liquor - McDowell Rum (Article- E), one big size plastic
disposable glass (Article- F), blood stained iron hammer, blood stained
wooden pieces of the handle of a hammer, one blood stained gold ring,
one blood stained knife, one sweater, plain and blood soaked soil from
near the place of incident as per seizure memo (Ex. P-5). Although one
of the seizure witness Balram Singh Kushwaha (PW-3) has not
supported the prosecution case and has turned hostile, but Bherulal
(PW-14) has supported his statement and deposed that after the incident
apart from other articles, an empty 180 ml.(quarter) bottle of foreign
liquor - McDowell Rum (Article- E) was seized from the spot.
22. Finger Print Expert K.K. Dwivedi (PW-20) deposed that he
received the aforesaid bottle of foreign liquor - McDowell Rum
(Article- E) alongwith other articles in sealed condition vide letter
no.148/12 dated 18.02.2012 forwarded by SHO P.S. Palasia. He
deposed that on 21.02.2012, he examined the same and had developed
the chance finger prints mark 'A' and 'B' found on the aforesaid bottle
and had lifted the same on a card, which is Article A-1. He deposed that
the lifted chance finger prints mark 'A' was found fit for matching. He
further deposed that thereafter, he received finger print mark S-1 (Ex.
P-30) of the appellant alongwith finger print mark S-2 of the co-
accused vide letter no.148-A/12 dated 23.02.2012 forwarded by SHO
Cr.A. No.1178/2014 & 1211/2014
P.S. Palasia. He deposed that the lifted chance finger prints mark 'A'
found on the bottle was matched with the appellant's right hand index
finger print mark S-1, resultantly, he opined that the finger prints found
on the bottle are identical to that of appellant's right hand middle finger
print as per his report (Ex. P-32).
23. Appellant in his statement recorded u/S 313 of Cr.P.C., has stated
that his finger prints were obtained on the bottle and knife after his
arrest, but from the statements of finger print expert K.K. Dwivedi
(PW-20), it is apparent that the finger prints found on the bottle were
lifted and developed by him on 21.2.2012 i.e. before the arrest of the
appellant. Nothing material has been extracted during his cross-
examination, due to which his above statement can be disbelieved or
doubted. Facts of this case are entirely different from the facts of the
case Mohd. Aman & another Vs. State of Rajasthan [Supra],
wherein finger prints found on a brass jug was forwarded to the Finger
Print Bureau after about 5 days of the seizure of the jug and specimen
finger prints of the accused were taken thrice. In the instant case, seized
bottle was forwarded to the Finger Prints Expert on the very next day of
the seizure, i.e. before the arrest of the appellant. Probability to tamper
with the seized bottle has completely been ruled out. Hence, appellant's
presence on the spot at the time of incident can very well be inferred.
24. In view of the aforesaid discussion, there remains no doubt that
the appellant and deceased were friends and on the date of incident
appellant stayed in the hotel Vishal as per hotel register entries (Ex. P-
20), made conversation with the deceased just before the incident as per
call details (Ex. P-20 & 35) and was present on the spot at the time of
incident as per finger print expert's report (Ex. P-32). He has nowhere
Cr.A. No.1178/2014 & 1211/2014
disclosed about the fact that when he parted the company of the
deceased. Therefore, all the aforesaid circumstances together unerringly
pointed guilt of the appellant that he was involved in committing the
murder of the deceased and trial Court has not committed any error in
holding the appellant guilty for the offence punishable u/S 302 r/w 34
of IPC.
25. It has vehemently been argued on behalf of the appellant that
prosecution has totally failed to prove the motive of the crime,
therefore, only on the basis of suspicion his conviction is not
sustainable. In this regard judgement passed by the Apex Court in the
case of Sanjeev Vs State of Haryana [(2015)5 SCC 387], can be
relied upon, wherein it is held that to establish commission of murder
by an accused, motive is not required to be proved. Motive is something
which prompts a man to form an intention. It is either intention or
knowledge on the part of the accused which is required to be seen in
respect of the offence of culpable homicide. In order to read either
intention or knowledge, the courts have to examine the circumstances
as there cannot be any direct evidence as to the state of mind of the
accused. Hence, the judgement passed in the cases of Ram Kumar vs.
State of Chhatisgargh [Supra] and Uppala Bixam vs. State of AP
[Supra] are of no assistence to the appellant.
26. So far as his conviction u/S 394 r/w 397 of IPC is concerned, it is
mainly based on the seizure of the deceased's motor cycle and purse.
I/O CSP Pankaj Dixit (PW-17) deposed that on 23.02.2012, he arrested
the appellant as per arrest memo (Ex.P-13) and recorded his disclosure
statements (Ex.P-16), wherein he disclosed about the deceased's motor
cycle and purse of the deceased, on the basis of which on his instance,
Cr.A. No.1178/2014 & 1211/2014
he seized a black colour purse from the bag kept in the office of Hotel
Vishal. He in para 4 of his examination-in-chief, specifically deposed
that the bag from which the black colour purse was seized had been
given by the Manager of the hotel.
27. Somdatt (PW-5), Manager of the said Hotel, also made similar
statements and deposed that on 24.02.2012, when police came to his
hotel alongwith appellant and co-accused Praveen and asked about the
appellant's luggage, then he had given the said bag to the police. He in
para 11 of his cross-examination, admitted that the purse and other
articles kept in the bag was collected from the room, where appellant
had stayed. He nowhere stated that the bag kept by him was locked by
the appellant. Deceased's motor cycle was admittedly seized from a
public passage, situated near the hotel Vishal. In these circumstances, it
cannot be said that the deceased's black purse and motor cycle were
seized from the exclusive possession of the appellant. Hence, finding of
the learned Trial Court in this regard are not sustainable and appellant's
conviction under Section 394 r/w 397 of IPC is not sustainable.
28. So far as, the appeal filed under Section 372 of Cr.P.C. on behalf
the complainant Satish for enhancement of sentence awarded to the
appellant Anil is concerned, although number and nature of the injuries
found on the body of the deceased, shows brutality of the crime
committed by the appellant, but only number and nature of the injuries
found on the body of the deceased itself cannot place the case under
rarest of rare category, where death penalty is required. Prosecution has
not produced any criminal past record of the appellant Anil and he
appears to be first offender. Hence, considering overall material
produced on record and also the age of the appellant, in the considered
opinion of this Court the ends of justice would be served with the
Cr.A. No.1178/2014 & 1211/2014
sentence already awarded by the learned trial Court i.e. life imprisonment.
Hence, appeal bearing CRA No.1211/2014 filed by the complainant/appellant
in this regard is liable to be dismissed.
29. Consequently, in view of the forgoing, appeal bearing CRA
No.1178/2014 filed by the appellant- Anil is hereby allowed in part. Finding
with regard to the conviction for the offences punishable under Sections 394
r/w 397 is liable to be set aside and is hereby set aside and appellant - Anil is
acquitted from the said offence. The conviction of the appellant passed by
the learned Trial Court under Section 302 r/w 34 of IPC is hereby
affirmed as learned Trial Court has not committed any error in finding the
appellant Anil guilty for the said offence. Learned Trial Court is directed to
ascertain the period of jail incarceration suffered by the appellant from the
concerned jail.
30. So far as, the appeal bearing CRA No.1211/2014 with regard to
enhancement of sentence awarded to the appellant - Anil, we do not find any
reason to interfere with the impugned judgment in respect of the custodial
sentence awarded to appellant. Accordingly, this appeal is dismissed.
31. With the aforesaid, criminal appeal bearing CRA No.1178/2014 is
allowed in part to the extent as indicated herein above and CRA
No.1211/2014 filed by the complainant - Satish Bagore is hereby dismissed.
32. The Registry is directed to send back the Trial Court record forthwith
alongwith copy of this judgement for necessary compliance without any delay.
A copy of this order be kept in the connected appeal also.
Certified copy, as per Rules.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
vibha
VIBHA PACHORI
2022.11.24
10:53:51 +05'30'
