Rashid vs The State Of Madhya Pradesh
2023 Latest Caselaw 12978 MP

                                  1


      IN THE HIGH COURT OF MADHYA PRADESH
                   AT INDORE
                            BEFORE
            HON'BLE SHRI JUSTICE VIVEK RUSIA
                                  &
            HON'BLE SHRI JUSTICE ANIL VERMA
               CRIMINAL APPEAL No. 490 of 2013

BETWEEN:-
JAHID @ BHAIYA S/O ABDUL HAMID,
AGED ABOUT 20 YEARS,
OCCUPATION: SERVICE
R/O: 26/1, MIRZA BHAKHAL, P.S. CITY KOTWALI,
DEWAS (MADHYA PRADESH)
                                                 .....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P.S. SANYOGITAGANJ,
INDORE (MADHYA PRADESH)
                                               .....RESPONDENT
(BY SHRI SUDARSHAN JOSHI - GOVERNMENT ADVOCATE)


               CRIMINAL APPEAL No. 581 of 2013

BETWEEN:-
NOUSHAD S/O ABDUL HAKIM,
AGED ABOUT 30 YEARS,
R/O: BAKRI WALI GALI, P.S. KHAJRANA,
INDORE (MADHYA PRADESH)
                                                 .....APPELLANT
(BY SHRI NITIN VYAS - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P.S. SANYOGITAGANJ,
INDORE (MADHYA PRADESH)
                                             2


                                                                   .....RESPONDENT
(BY SHRI SUDARSHAN JOSHI - GOVERNMENT ADVOCATE)


                    CRIMINAL APPEAL No. 646 of 2013

BETWEEN:-
RASHID S/O ABDUL RAUF,
AGED ABOUT 25 YEARS,
R/O: 143, SILVER COLONY, P.S. KHAJRANA,
INDORE (MADHYA PRADESH)
                                                                      .....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH P.S. SANYOGITAGANJ,
INDORE (MADHYA PRADESH)
                                                                   .....RESPONDENT
(BY SHRI SUDARSHAN JOSHI - GOVERNMENT ADVOCATE)
Reserved on                   :       2/8/2023
Pronounced on                 :       10/8/2023
------------------------------------------------------------------------------------------
      These appeals having been heard and reserved for orders, coming
on for pronouncement this day, JUSTICE ANIL VERMA pronounced the
following:
                                    JUDGMENT

1/ This judgment shall govern the disposal of Criminal Appeal Nos.490/2013, 581/2013 and 646/2013 as all the three criminal appeals arise out of the common judgment dated 15.3.2013 passed by the Addl. Sessions Judge, Indore in S.T. No.880/2010, whereby the appellants have been convicted and sentenced as under:-

Conviction Sentence Fine Imprisonment in lieu of payment of fine u/S. 364-A IPC Life Imprisonment Rs.2,000/- 6 months R.I. u/S. 302 IPC Life Imprisonment Rs.2,000/- 6 months R.I.

u/S. 201 IPC 7 years R.I. Rs.2,000/- 6 months R.I.

2/ The brief facts of the case are that Fatima Bi (PW-1) lodged a missing person report at P.S. Sanyogitaganj, Indore by stating that her son Kayamuddin had gone from home on 24.7.2010 after 4.00 P.M. without informing her and did not come back. She tried to find out him everywhere, but could not found him anywhere. During the investigation it has been gathered that deceased Kayamuddin was kidnapped for ransom by the appellants/accused persons and due to the non fulfilment of their demand of ransom, they murdered Kayamuddin by using Geti (pickaxe) and spade and the dead body was hidden in the heap of clay near the Dewas-Indore bypass road. First of all accused Naushad was arrested on the basis of the telephone call made by his cell phone to Abdul Ali. Thereafter on the basis of the discovery statement made by the accused Naushad, other two co-accused have also been arrested.

3/ Sub Inspector Shyambabu Sharma went to the spot and prepared spot map (Ex.P/18) and discovered the dead body of the deceased inside the heap of clay. The witnesses identified that the dead body belongs to the deceased Kayamuddin. Investigating officer Shyambabu Sharma prepared Lash Panchnama (Ex.P/14 & P/16) and also recovered blood stained and simple clay, some coins, silver ring and a watch from the spot through seizure memo (Ex.P/13). He has arrested the other co-accused Rashid and Jahid @ Bhaiya and on the basis of discovery statement made by them, he recovered a blood

stained shirt, pant and mobile phone from the possession of appellant Rashid through seizure memo (Ex.P/6). On the basis of the discovery statement of Naushad, he recovered spade and pickaxe and his blood stained pant and shirt and an Indica Car from his possession through seizure memo (Ex.P/7 & P/8). Deceased's mobile was recovered from the possession of the accused Jahid @ Bhaiya. The seized articles were sent to the forensic science laboratory for its examination. Postmortem of the deceased was performed by Dr. Prashant Rajput (PW-21) who found 11 antemortem injuries over the person of the deceased and opined that the deceased has died on account of excessive bleeding due to the various injuries on vital parts.

4/ After due investigation, charge sheet was filed before the Chief Judicial Magistrate, Indore, who committed the case to the Court of Sessions and it was later on transferred to the Court of Addl. Sessions Judge, Indore for the trial. The trial Court framed charges under Section 364-A, 302, 302/34 and 201 of IPC against the appellants. The appellants abjured their guilt and took a plea that they have been falsely implicated in this matter. Prosecution has examined as many as 21 witnesses, while the defence did not examine any witness.

5/ The trial court after appreciating the evidence available on record, convicted and sentenced the appellants as mentioned herein- above. Being aggrieved by the judgment of conviction and order of sentence, the appellants have preferred the present appeals before this Court.

6/ Learned counsel for the appellant Naushad appearing in CRA No.581/2013 has submitted that the judgment of the trial Court is contrary to the law and facts on record. The case of the prosecution is based upon the circumstantial evidence, but the trial Court was wrong in believing the prosecution witnesses and discarding the defence version and drawing unwarranted inferences. Trial court was also wrong in not considering the material contradictions and omissions in the statement of prosecution witnesses. Hence, he prays that the appeal be allowed and the impugned judgment passed by the trial Court be set aside and the appellant be acquitted from all the charges.

7/ Learned counsel for the appellant Rashid appearing in CRA No.646/2013 has submitted that allegedly one mobile phone has been recovered from his possession and on the basis of the said recovery and the call details, the trial court has erroneously proved all the charges against him. There is no eyewitness in the whole incident. The trial court has not appreciated the evidence in its proper perspective. Hence, she prays that the appeal be allowed and the impugned judgment passed by the trial Court be set aside and the appellant be acquitted from all the charges.

8/ Learned counsel for the appellant Jahid @ Bhaiya appearing in CRA No.490/2013 has submitted that there are material contradictions and omissions in the statement of the prosecution witnesses, therefore, trial Court has erred in believing the aforesaid statement. Trial court has failed to follow the cardinal principles as laid down by the Hon'ble Apex Court in catena of judgments. The story of

the prosecution was most unnatural. Hence, she prays that the appeal be allowed and the impugned judgment passed by the trial Court be set aside and the appellant be acquitted from all the charges.

9/ Per contra, learned GA for respondent/State opposes the prayer by submitting that the impugned judgment passed by the trial Court is just and proper and based upon the proper appreciation of evidence, therefore, appellants have been rightly convicted and sentenced and there is no requirement for any interference.

10/ We have heard the learned counsel for all the parties at length and perused the entire record of the trial Court with due care.

11/ In order to appreciate the merit of the rival contentions in the right perspective, it is necessary to first advert to the medical evidence available on record.

12/ Dr. Prashant Rajput (PW-21) who has conducted the postmortem of the deceased Kayamuddin, found as many as 11 ante mortem injuries over the person of the deceased and he opined that the deceased Kayamuddin died due to the shock and haemorrhage as a result of craniofacial injury, which were caused by hard, blunt and heavy object and some injuries were caused by hard, blunt and penetrating object and the injuries are sufficient to cause death in the ordinary course of nature. The death is homicidal in nature. Postmortem report is Ex.P/34. However, on the issue of aforesaid injuries, no effective cross-examination has been conducted by the accused persons. In absence of any serious challenge to the postmortem report (Ex.P/34) and aforesaid injuries, we have no option but to accept the postmortem

report and the evidence of Dr. Prashant Rajput (PW-21) that death of Kayamuddin was homicidal in nature since there is no challenge to the aforesaid findings in all the appeals. Hence, we upheld the same findings.

13/ It is noteworthy that in the instant case there is no eyewitness and the case of the prosecution is based upon the circumstantial evidence.

14/ In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116, the Hon'ble Apex Court has held as under:-

"1. The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;

2. The facts so established should be consistent with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other hypothesis except that the accused is guilty;

3. The circumstances should be of a conclusive nature and tendency;

4. They should exclude every possible hypothesis except the one to be proved; and

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."

15/ The factors to be taken into account in adjudication of cases of circumstantial evidence is laid down by the Supreme Court in Anjan Kumar Sarma and others vs. State of Assam (2017) 14 SCC 359 thus :-

"(1) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established;

(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable on any other 7 Cr.A. No.2031/2009 hypothesis except that the accused is guilty;

(3) the circumstances should be of a conclusive nature and tendency;

(4) they should exclude every possible hypothesis except the one to be proved; and (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.

16/ In the instant case, the trial Court has relied upon the testimony of Fatima Bi (PW-1), Abdul Ali (PW-3), Ramjaan Khan (PW-4), Lateef (PW-5), Saleem (PW-6) and Yusuf Khan (PW-10). Fatima Bi (PW-1), who is the mother of the deceased Kayamuddin, has categorically stated in her statement that her son Kayamuddin returned from his work but after some time he talked on phone with some person and left the house. Thereafter he did not come back and when she tried to connect him on phone, she found that his phone was switched off. Then she informed her nephew Abdul Ali that Kayamuddin is missing. He also tried to search him everywhere but could not found him. Then she lodged a missing person report at the police station. Thereafter someone called her nephew Abdul Ali that Kayamuddin is in their

possession and they demanded Rs.4,50,000/- as a ransom. His nephew said that we will give you Rs.5 Lakhs but told us about the whereabouts of the child. Then they said that we will inform you tomorrow and you will come with money. Then she again informed the police about that cal. At about 5.30 p.m. she received a call from Kayamuddin's mobile and she was informed that whether you have arranged Rs.4,50,000/- or not, then we will inform you about the place where you should come tomorrow with money. Fatima Bi (PW-1) further deposed that she got some money after selling her father-in-law's land. She deposited Rs.5 Lakhs in a company and purchased a house and motorcycle.

17/ Abdul Ali (PW-3) has deposed that on 25.7.2010 at about 4.30 p.m. he received a call from mobile no. 9770930294 of Kayamuddin and some unknown miscreant demanded ransom of Rs.4,50,000/- and threatened him that if they do not get the money, they will kill Kayamuddin. Ramjan Khan (PW-4) also corroborated the statement of Fatima Bi (PW-1) and Abdul Ali (PW-3).

18/ Sub Inspector Shyambabu Sharma (PW-17) has deposed that during the investigation on 26.7.2010 he had obtained the call details and tower location of the mobile no.9770930294 of the deceased. He had received the call details (Ex.P/34) and it has been gathered that on 24.7.2010 and 25.7.2010 the mobile number of Kayamuddin was used for the aforesaid calls, but this mobile number has been used by the mobile bearing IMEI No. 351937039495520. On the basis of the aforesaid call Fatima Bi informed that mobile no.9752241771 belongs to accused Naushad. Then on 28.7.2010 he had

arrested the accused Naushad and on the basis of his discovery statement (Ex.P/19), a mobile has been recovered from his possession and on the basis of the discovery statement made by accused Naushad, he reached on the spot at Indore-Dewas bypass road and dead body of the deceased was found inside the heap of clay along with a silver ring, some coins and one wrist watch. Witnesses identified that dead body is of Kayamuddin. On the basis of the discovery statement of Naushad, he has arrested the other two co-accused persons and recorded their discovery statement and recovered an Indica Car, a pickaxe, spade, shirt, pant and mobile phone from the possession of the accused Rashid. He also recovered a mobile phone of deceased Kayamuddin from the possession of the co-accused Jahid through seizure memo (Ex.P/27).

19/ Abdul Ali (PW-3), Lateef (PW-5), Saleem (PW-6), Yusuf Khan (PW-10) also corroborated the statement of the investigating officer regarding the discovery statement and seizure memo made by the investigating officer. Therefore, on the basis of the statement of the investigating officer and the witnesses of the seizure memo, arrest memo and discovery statement, the prosecution has successfully proved that the mobile phone of the deceased was recovered from the possession of the appellant Jahid, blood stained clothes have been recovered from the possession of appellant Rashid and used weapon pickaxe (Geti) and spade have been recovered from the possession of appellant Naushad. Appellants/accused persons did not produce any satisfactory explanation regarding the seizure of the aforesaid articles from their possession. There are no contradictions and omissions in the

statements of the prosecution witnesses and as such the same do not suffer from any infirmity.

20/ Furthermore, looking to the statement of the aforesaid witnesses, injuries sustained by the deceased on vital part, which is proved from the statement of Dr. Prashant Rajput, the statement of all these witnesses appears to be trustworthy and unimpeachable. Appellants have also failed to prove that they have been falsely implicated due to any previous enmity. However, looking to the unimpeachable testimony of all these witnesses, corroborative medical evidence and the seizure of the incriminating articles from the possession of the appellants, according to us the trial Court did not commit any error in holding that the accused persons have kidnapped the deceased Kayamuddin and demanded ransom and when their demand for ransom was not fulfilled, they murdered the deceased and to hide the aforesaid evidence they hidden his dead body in a deserted place. Hence, by this judgment, we hereby extend the stamp of approval to the judgment of conviction and sentence passed by the trial court.

21/ Resultantly, all these criminal appeals are found to be devoid of merit and substance and are hereby dismissed. The appellants are in jail, they shall remain in jail to undergo the remaining part of their jail sentence.

22/ Registry is directed to send a copy of this judgment to the concerned trial court along with the record of the trial Court for information and necessary action.

23/ Signed judgment be kept in the file of CRA No.490/2013 and a copy thereof be placed in the file of connected CRA No.581/2013 and CRA No.646/2013.

C.C. as per rules.

           (VIVEK RUSIA)                                  (ANIL VERMA)
              JUDGE                                           JUDGE
Trilok/-

           Digitally signed by TRILOK SINGH
           SAVNER
           Date: 2023.08.11 10:09:24 +05'30'