Madhya Pradesh High Court
Neelu @ Nilesh Koshti vs The State Of Madhya Pradesh on 1 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 389 of 2016
BETWEEN:-
NEELU @ NILESH KOSHTI SON OF DILIP,
AGED 33 YEARS, OCCUPATION NOTHING,
RESIDENT OF 727/2, MALVIYA NAGAR
INDORE (MADHYA PRADESH)
.....APPELLANT
( SHRI SANTOSH KHOWARE - ADVOCATE APPEARING
ON BEHALF OF SHRI VISHNU KUMAR DUBE - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION -PALASIA
INDORE (MADHYA PRADESH)
.....RESPONDENT
( SHRI KUSHAL GOYAL - GOVERNMENT ADVOCATE)
Reserved on : 22/11/2023
Pronounced on : 1/12/2023
This appeal having been heard and reserved for orders, coming on
for pronouncement this day, the JUSTICE ANIL VERMA pronounced
the following:
JUDGMENT
This appeal has been preferred by appellant under Section 374 of
Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the
impugned judgment dated 20.11.2012 passed by Additional Sessions
Judge Indore (M.P.) in Sessions Trial No. 1165/2009, whereby the
appellant has been convicted for the offence under Sections 302 and 201
of the Indian Penal Code, 1860 (in short 'IPC') and has been sentenced to
undergo Life Imprisonment with fine of Rs. 1,000/- and seven years R.I.
with fine of Rs. 1,000/- with usual default stipulation.
2. The facts of the case in brief are that on 28.7.2009 Bhagwatibai
lodged a missing person report at police station Palasia Indore by
stating that on 25.7.2009 at about 1.30 pm her daughter Archana @
Pinki went to Patnipura by her scooty but she did not returned. During
investigation it has been gathered that after missing of Pinki her mobile
phone No. 9977107439 was used by some other person who has
demanded money as ransom from her husband Rajesh by stating that
Pinki is in his custody. On enquiry of call details of mobile phone of
Pinki, it has been found that another SIM of mobile was used by one
Shekhar Chouhan who purchased Nokia Handset from accused/appellant
Nilesh. Appellant Nilesh alongwith his friend Jai hatched a conspiracy to
grab money from husband of Pinki on the pretext of her kidnapping,
even Rajesh agreed to pay the amount to them but they had murdered
Pinki nearby Tassalidhaba by strangulation and kept her dead-body in an
empty sack and thrown into the well. Thereafter the dead body of the
deceased was recovered from said well and postmortem of the
decomposed dead body was conducted by Dr. N.M. Unda (PW-20),
visara and other seized articles of the deceased were sent to FSL for its
chemical analysis.
3. The prosecution story in further is that Inspector S.M. Jaidi
(PW-23) on 10.8.2009 during the investigation recorded the
memorandum statement of the accused and on the basis of said
discovery statement he has recovered skeleton and parts of decomposed
body of deceased. He also recovered scooty of the deceased at the
instance of appellant. No chemical poison has been found in the FSL
report.
4. After completion of investigation, charge sheet was filed
before the ACJM Indore who has committed the case to the Court of
Session and later on case has been transferred to the Additional Sessions
Judge for trial. Thereafter, trial Court on the basis of the allegations
made in the charge sheet framed charges under Sections 302/34 and 201
of IPC against the present appellant. Appellant abjured his guilt and
pleaded complete innocence. The trial Court after appreciating the entire
evidence available on record, convicted and sentenced the appellant as
mentioned herein above. Hence, the appellant has preferred this appeal.
5. Learned counsel for the appellant contended that the judgment
of the trial Court is contrary to law and facts on record. It is neither legal
nor proper nor correct. The trial Court was wrong in drawing
unwarranted inferences in not considering the material contradictions
and omissions in the statement of prosecution witnesses. Prosecution
could not prove his case beyond reasonable doubt. Conviction of the
appellant is bad in law. Hence, he prays that the appeal be allowed and
the impugned judgment of conviction be set aside and appellant be
acquitted from all the charges.
6. Per contra, learned counsel for the respondent / State
opposes the prayer by supporting the impugned judgment passed by the
trial Court and prays for dismissal of this appeal by submitting that trial
Court after appreciating the entire evidence available on record in detail
rightly held that the appellant is guilty for the offence under Section 302
and 201 of IPC. Hence, no interference in the impugned judgment is
warranted, therefore, present appeal deserves to be dismissed.
7. We have heard learned counsel for both the parties at length
and perused the entire record of the trial Court with due care.
8. In order to appreciate the merits of rival contentions in the
right perspective, it is necessary to first examine the medical evidence
available on record.
9. Dr N.M. Unda (PW-20) who conducted the postmortem of
deceased Pinki has deposed as under:-
2- 'ko LVªspj ij j[kk Fkk ,oa cksjk ,oa cksjs ds lkFk diM+k Hkh lkFk j[kk
FkkA 'ko ij igus gq, diM+s o cka/kh xbZ jLlh ekStwn FkhA 'ko dks jLlh ls
cka/kdj mldk vkdkj NksVk fd;k x;kFkkA 'ko ds lkFk ,d igpku dh iphZ
ekStwn Fkh ml iphZ ij mldk uke] mez o vU; vko';d tkudkfj;ksa ds
lkFk 'ko dks j[kus dh rkjh[k o vkj{kd dk uke] uEcj] Fkkuk] Lohij ds
gLrk{kj rFkk lh0,e0vks0 ds gLrk{kj ekStwn FksA 'kjhj dks nksuks tka?kksa ,oa iSj
dks ikl feykdj jLlh;ksa ls cka/kk x;k FkkA jLlh;ka [kksydj 'ko dk fpRr
voLFkk esa fyVk;k x;k o e`frdk ds ck;as gkFk ij Hkqtk ij chp ds Hkkx esa
,d :eky ca/kk gqvk FkkA flj ds cky dkys jax ds Fks o <hys iM+ x;s Fks tks
[khapus ls vklkuh ls fudy tkrsA [kksiM+h dk mijh Hkkx tgka ls peM+h gV
xbZ Fkh ogka ij gM~Mh fn[kkbZ iM+ jgh FkhA 'kjhj ij lHkh Hkkxksa esa dhM+s jsax
jgs FksA
3- e`frdk ds 'kjhj ij ftal dh Qqy isVa ] Vh'kVZ] v.Mjfo;j] cszft;j ekStwn
Fkh rFkk iku elkys dk ikml cszft;j ds Hkhrj ekStwn Fkk] ikmp Vhd Fkk]
QVk ugh FkkA v.Mjfo;j ds Hkhrj ,d ctkbuy isM ekStwn Fkk] tgka ij
ok;sa gkFk ij tk :eky ca/kk Fkk ml Hkkx esa ,d ?kko ekStwn Fkk] ;g ?kko
/kkjnkj oLrq ls cuk;k x;k Fkk ftlds fdukjs lkQ QVs Fks rFkk ;g pksV
e`R;q iwoZ dh pksV FkhA ftl txg ij ?kko ekStwn Fkk og VkbZV ca/kk gksus ds
dkj.k lqjf{kr FkkA eqag ds Hkhrj :eky cka/ks tkus ds fpUg ekStwn Fks] ftl
txg ij :eky ca/kk Fkk ml Hkkx esa peM+h vf/kd lqjf{kr Fkh] blh izdkj
cszft;j ds csYV dk Hkkx Hkh VkbZV ca/ks gksus ds dkj.k vf/kd lqjf{kr Fkk]
ftal dh isUV ,oa dims iguk gqvk Hkkx Hkh vf/kd lqjf{kr Fkk] bu Hkkxksa esa
diM+ksa ds dkj.k lM+k/a k de gksdj 'kjhj dk Hkkx lqjf{kr jgrs gq, ,Mhiksflj
ifjorZu ekStwn FkkA ;g ifjorZu ftu Hkkxksa esa pchZ dh ek=k vf/kd jgrh gS
ogka ij vf/kd ekStwn FkkA psgjs ds Hkkx esa tgka ij :eky ca/kk Fkk ds
vfrfjDr Hkkx esa dhM+s jsax jgs Fks rFkk bu Hkkxksa esa lrgh peM+h ij dhM+ks ds
[kkus ds fpUg lrgh :i ls ekStwn FksA'kjhj dk tks Hkkx jLlh;ksa ls cka/k dj
,d nwljs ds ikl fpidk;k x;k Fkk vFkkZr 'kjhj dks NksVk fd;k x;k Fkk]
fpidk;k Hkkx Hkh vf/kd lqjf{kr FkkA 'kjhj ij jLlh;ksa ds cak/kus ds fu'kku
e`R;q i'pkr ds fu'kku FksA
4- 'kjhj ij fiNys Hkkx esa tks Hkkx diM+k gV tkus ds dkj.k uXu gks x;k
Fkk ml Hkkx ij cksjs dh Nkki ekStwn Fkh] ;g fgLlk Vh'kVZ o isUV ds csYV
ds chp dk Hkkx Fkk] bl Hkkx esa 'kjhj ij ikuh esa ekStwn ?kwyu'khy inkFkZ
pquk vkfn ekStwn jgrk gS mlds lQsn d.k tek FksA i`"B Hkkx esa o vU;
Hkkxksa esa dhM+ks ds [kkus ds dkj.k ckfjd ,oa NksVs fNnz ekStwn FksA dku ds
Hkkx esa esLVkbZM ,fj;k esa fyaxspj] ekdZ o mldk izHkko ekStwn Fkk] bl Hkkx
esa pkSM+kbZ 0-3 ls-eh pkSM+h FkhA fyaxspj ds cka/kh xbZ txg ds mij o uhps ds
Hkkx esa esxlZ }kjk peM+h dk lrgh Hkkx [kk;k x;k FkkA
5- Hkhrjh vO;o esa Hkh ,Mhiksflj ifjorZu o lM+k/a k ds fpUg ekStwn FksA nksuksa
gkFk ,oa iSj Hkh lM+k/a k ls cps FksA Hkhrjh vO;oksa esa Hkh lM+k/a k izkjafHkd voLFkk
dk FkkA vkek'k; esa 100 xzke ftruk isLV tSlk HksT; inkFkZ Hkwjs&dkys jax dk
ekStwn Fkk rFkk blesa xa/k ekStwn FkhA NksVh vkar esa Hkh blh izdkj dk HkksT;
inkFkZ ekStwn FkkA Hkhrjh vO;oksa esa ;d`r] Iyhgk] xqnkZ blesa fdlh izdkj dh
pksV ekStwn ugh FkhA bu lHkh esa xqnksZ esa ekStwn lM+k/a k vU; vO;oksa ls FkksM+h
vf/kd Fkh] ;g Hkh fMQ~;wt VkbZi dh FkhA nksuksa QsQMksa dk vkdkj NksVk gks
x;k Fkk] bl Hkkx esa Hkh lM+k/a k ekStwn FkhA o{kh;k xqgk esa yxHkx 20 feyh
yhVj ftruk nzO; ekStwn FkkA QsQM+ksa dh fLFkfr dks ns[krs gq, blesa ikuh esa
Mwcus ds fpUg ekStwn ugh FksA nkar viuh txg ij fuf'pr o fLFkr Fks] bl
Hkkx esa lM+ka/k dk izHkko de Fkk] efLr"d ykfyek fy;s uje iM+dj xk<sa isLV
tSlk inkFkZ esa cny x;k FkkA
6- ckbZ Hkqtk ij ekStwn pksV e`R;q iwoZ dh Fkh tks e`R;q ls 1 ls 3 fnol dh
vof/k ds Hkhrj dM+s /kkjnkj oLrq ls dkfjr dh xbZ Fkh] tks izd`fr ds
lkekU;Øe esa e`R;q dkfjr djus ds fy;s Ik;kZIr ugh FkhA
7- fyaxspj dk fu'kku ckbZ rjQ xnZu ij lkeus o ihNs dh rjQ dku ds
Hkkx esa ekStwn Fkh ftldh pkSM+kbZ 0-3 lseh pkSM+h Fkh o dku ds Hkkx esa 0-3
lseh pkSM+h gksdj 4 lseh rd yEch Fkh] bl Hkkx esa bdkbZeksfll ekStwn FkhA
fyaxspj ds Hkkx esa Fk;jkbZM dkjfVyst dk mikafLFkHkax ekStwn Fkk o eqWag ij
ftl Hkkx esa diM+k cka/kk x;k Fkk ml Hkkx esa bdkbeksfld ekStwn FkkA
bdkbeksfld izk;ksfxd :i ls xnZu ij pkjksa rjQ ekStwn Fkh ftl Hkkx esa
fyaxspj cka/kk x;k FkkA
8- e`frdk dk foljk] cksjk] fjcu tSlh oLrq] ostkbuy Leh;jlZ LykbM o
Losc] jLlh ftlls gkFk iSj vkSj 'kjhj dks cak/kk x;k Fkk] :eky ftls eqag ij
cka/kk x;k Fkk] ck;as gkFk dk :eky tks pksV ij cka/kk x;k Fkk] f'keyk iku
elkyk xqVdk ikmp] ostkbuy isM] ,d yEch gM~Mh rFkk diM+s lHkh fpfUgr
dj lhycan voLFkk esa lqjf{kr ykSVk;s x;s FksA mijksDr o.kZu ds vfrfjDr
'ks"k lHkh Hkhrjh vO;o LoLFk Fks] mlesa lM+k/a k o ,Mhiksflj ifjorZu ekStwn
FkkA
9- vfHker %& 'ko izkjafHkd voLFkk dh lM+ka/k ,oa vkaf'kd ,Mhikslh ifjorZu
ds lkFk yk;k x;k FkkA e`R;q fyaxspj }kjk xyk nck;s tkus ds dkj.k gksuk
ikbZ xbZ FkhA e`R;q ekuo o/k Lo:Ik dh FkhA 'kjhj ij ik;s x;s cksjs ds fu'kku
o jLlh ds fu'kku tks gkFk&iSj ij ekStwn Fks ;g nksuksa fu'kku e`R;q Ik'pkr ds
FksA ckbZ Hkqtk ij ik;k x;k pksV dk fu'kku e`R;q iwoZ dk FkkA lHkh oLrq,a
lhycan voLFkk esa ykSVkbZ xbZ Fkh o e`R;q dh vof/k vkaf'kd ,Mhikslh ifjorZu
ds dkj.k lqfuf'pr ugh dh tk ldrhA
He opined that death of deceased was homicidal in nature due to
compression of neck by ligature and the injury found over her body was
antemortem. Potmortem report is Ex.P-23. Dr. Unda admits in his cross
examination that dead body was partly decomposed, but some ligature
mark was found on the neck. Therefore, on the basis of statement of Dr.
Unda and autopsy report given by him it is proved that death of deceased
was homicidal in nature and her cause of death is due to compression of
neck by ligature.
10. It is to be noted that there is no eye witness of the incident in
the present case. The entire case of the prosecution is based upon the
circumstantial evidence. 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."
11. 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 reported in (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 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."
12. The principles of circumstantial evidence is reiterated in Nizam
and Another Vs. State of Rajasthan reported in (2016) 1 SCC 550,
wherein the Supreme Court has held that:-
"8. Case of the prosecution is entirely based on the
circumstantial evidence. In a case based on circumstantial
evidence, settled law is that the circumstances from which the
conclusion of guilt is drawn should be fully proved and such
circumstances must be conclusive in nature. Moreover, all the
circumstances should be complete, forming a chain and there
should be no gap left in the chain of evidence. Further, the
proved circumstances must be consistent only with the
hypothesis of the guilt of the accused totally inconsistent with
his innocence."
13. A missing person report was lodged by mother of deceased
Bhagwati (PW-4) and Radhamohan (PW-3) who happens to be father of
deceased also corroborated that her daughter Pinki was missing from
whom since 25.9.2009 and they have lodged missing person report.
Rajesh, husband of deceased also tried to search the deceased, but they
could not find her anywhere. Rajesh (PW-12) deposed that after missing
her wife- Pinki he received a phone call from Mobile No. 9977907439
which belongs to Pinki and some unknown person demanded ransom of
5 lakhs rupees by stating that Pinki is in his custody. Thereafter he
himself enquired about the person who called him about her wife Pinki.
Then he again received phone call of that person many times. Husband
of Pinki told that person that " he is coming to Indore'. He also told him
that let me talk to Pinki once but did not make the call. Legal IDEA
Celluar Rajesh Kumar singh (PW-21) also corroborated in his statement
that all these calls were made by the mobile phone which was found
missing with the deceased Pinki.
14. Krishna Sharma (PW-5) deposed that he has purchased the
mobile phone from his brother in law Shekhar on consideration of Rs.
2500/- and he has started using that mobile, but thereafter he came to
know that the said phone was of deceased Pinki, who was murdered by
accused Nilesh. Shekhar Chouhan (PW-6) also deposed that he has
purchased the said mobile phone from accused Nilesh, that phone is
Article A.
15. C.S.P. S.M. Jaidi deposed that on 10.8.2009 he has arrested
accused, then recorded his discovery statement (Ex.P-4) and on the basis
of said statement, he went to the well situated nearby Tasalli Dhaba and
with the help of fire brigade employees, he has recovered decomposed
body of deceased Pinki and also recovered scooty of deceased from a
stand, although independent witnesses of these proceedings did not
corroborate the statement of I.O. but statement of Inspector S.M. Jaidy is
well supported by the documentary evidence and other independent
witness. Merely the fact that he is a police officer, his credibility of
statement cannot be thrown out and there is no reason to disbelieve his
statement.
16. In view of the aforesaid analysis it is proved that after death of
deceased Pinki her mobile phone was sold out by appellant Nilesh to
Shekhar which was later on sold to Krishna (PW-5). It is also proved
that appellant used the SIM of deceased, the dead- body of deceased and
her scooty was also recovered at the instance of appellant. Therefore, all
these circumstances goes against the appellant. Hon'ble Apex court in
the case of Bajji Vs. State of MP reported in AIR 1978 SC 522 held
that "Recent and unexplained possession of stolen articles can be taken
to be presumptive evidence of the charges of murder as well."
17. The Hon'ble Apex court in case of Shankar Gajanan
Kalan Vs. State of Maharashtra (1996) 11 SCC 151 has held that -
Recovery of ornaments worn by deceased at the instance of the accused-
Prosecution case that soon after the date of disappearance of deceased,
accused-appellant had sold the ornaments to PWs- Having appraised the
testimony of the PWs, held, the only irresistible conclusion would be
that appellant came into possession of the ornaments of the deceased
only after the date she left her house and disposed of them on the
following day to PWs.
18. Thus it is evidently clear that the discovery statement made by
accused lead to recovery of dead-body and other articles of deceased
under section 27 of Indian Evidence Act. The dead-body was pointed by
accused and it has been recovered and seized as a result of statement
made by him, that would lead to be conclusion of offender of murder. It
can be taken as presumptive evidence of charges of murder.
19. Therefore, from the statement of mother of deceased
Bhagwati (PW-4), brother Mukesh (PW-7) it is proved that deceased
Pinki was working as a Bar Dancer in Sangali, Puna and Bombay and
thereafter she got married with owner of the bar Dancer Rajesh (PW-12).
But most of time she lived in Indore because her husband Rajesh was
already married with some other lady and Rajesh had always ready to
bear expenses of deceased and her family as per their demand.
20. Looking to the testimony of all these witnesses coupled with
the medical evidence and other piece of circumstantial evidence
available on record, we are of the considered opinion that trial court did
not commit any error in holding that appellant has murdered the
deceased Pinki for non-fulfillment of his demand of ransom by
strangulating her and kept her body in an empty sack and destroyed the
evidence of murder by throwing her dead body into the well.
21. For the reasons stated herein above, we find no force in this
appeal and the appeal being devoid of merit and substance is hereby
dismissed. The conviction and sentence as awarded by the trial court to
appellant under sections 302 and 201 of IPC is hereby upheld and
confirmed. Appellant is in jail. He shall remain in jail to suffer the
remaining part of jail sentence awarded to him.
22. Disposal of the property shall be as per the order passed by
the trial court.
23. Registry is directed to send a copy of this judgment to the trial
court alongwith the record of the trial court for necessary compliance.
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
BDJ
BHUNESH Digitally signed by BHUNESHWAR DATT
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, ou=HIGH COURT
WAR
OF MADHYA PRADESH BENCH INDORE,
2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee
5a74a94a5534aed3a66d9385cfcfc201e0,
postalCode=452001, st=Madhya Pradesh,
serialNumber=89FD75A8D0C99E05779A3279
DATT
74E46BC85102826CE0604B211E4C91102B4D
1269, cn=BHUNESHWAR DATT
Date: 2023.12.04 09:21:03 -08'00'
