Afreen @ Sonu vs State Of M.P.
2023 Latest Caselaw 2155 MP

                                     1
              IN THE HIGH COURT OF MADHYA PRADESH
                            AT INDORE
                                CRA No. 333 of 2021
                           (AFREEN @ SONU Vs STATE OF M.P.)

Dated : 07-02-2023
      Shri Nilesh Dave, learned counsel for the appellant.

      Shri      Bhaskar    Agrawal,      learned      Govt.       Advocate    for     the
respondent/State.

Heard on I.A. No.9153/2021, which is first application for suspension of jail sentence and grant of bail filed under section 389(1) of the Cr.P.C. on behalf

of [email protected]

The trial Court has convicted appellant vide judgment dated 18.09.2020 passed by the 27th Additional Sessions Judge, Indore in S.T. No.9608936/2016 as under:-

Fine deposited Imprisonment in Sessions Act Imprisonment details lieu of fine

Life 302/34 IPC Rs.1,000/- 6 months R.I.

Imprisonment

460/34 IPC 10 years R.I. Rs.500/- 3 months R.I.

394/34 IPC 10 years R.I. Rs.500/- 3 months R.I.

As per prosecution case, on 28.05.2015 at about 9 p.m. someone entered in the house deceased Arjun Singh Parihar stolen ornaments and other articles and murdered the deceased. An FIR Exhibit-P/1 was lodged against unknown persons.

Learned counsel for the appellant submits that appellant has not committed any offence and he has falsely been implicated in the case. The learned trial Court has convicted and sentenced the appellant only on the two grounds, firstly some artificial stolen articles have been recovered from the

appellant and secondly his finger print was found on a tin container which was found in the house of the deceased. Learned counsel for the appellant further submits that artificial ornaments which were recovered from the possession of the appellant after more than one year. Alleged tin container was not produced before the trial court therefore, recovery of articles and finger prints on tin container is not reliable. Learned counsel for the appellant has placed reliance in case of Mallapa Basappa Ihole V/s. State of Karnataka in Criminal Appeal No.625/2013 and in case of Tulesh Kumar Sahu V/s. State of Chhattisgarh in criminal appeal no.753/2021. The appellant is in custody since 03.09.2016. Final hearing of the appeal is not possible in near future

therefore, it is prayed that remaining jail sentence of the appellant may be suspended and appellant may be released on bail.

Learned Govt. Advocate for the respondent/State opposed the prayer of the appellant by submitting that two artificial payal and two gold tie pin were recovered from the possession of the appellant which was identified by Ms. Sujata Parihar P.W.-4 as stolen property and the appellant has not explained that how those articles came in his possession.

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

The Apex Court in case of Tulesh Kumar Sahu (Supra) has observed in paragraph-11 which is reproduced below:-

" 11. The observations in Ashish Jain were relied upon in the decision in Sonu alias Sunil, and it was found that it would not be safe to uphold the conviction on the basis of material produced by the prosecution. This Court also relied upon the decisions in Sunder Lal alia Sundera vs. State of Madhya Pradesh3 and Sanwant Khan vs. State of Rajasthan4. The relevant discussion found in paragraphs 27, 28 and 33 of the judgment is:-

" 27. The scope of this provision has been considered by this Court on various occasions. In Sunder Lal alias Sundera v. State of Madhya Pradesh, both the accused and deceased were seen together. After the alleged murder, the accused went with the article belonging to the deceased for pledging/selling it. In the circumstances, the Court took the view that the ornaments were established to be the ornaments worn by the deceased. No explanation was forthcoming how the accused came to be in possession on the very same day on which the alleged murder was committed. On this, the Court took the view that the conviction under Section 302 of the IPC, based on the circumstances, was correct.

28. On the other hand, in Sanwant Khan v. State of Rajasthan, one Mahant Ganesh Das, who was a wealthy person, used to live in a temple of Shri Gopalji along with another person. Both of them were found dead. The house had been ransacked and boxes and almirah opened. It was not known at the time who committed the offence. Investigation resulted in arrest of the appellant, and on the same day, he produced a gold khanti from his bara, where it was found buried in the ground. Another accused produced a silver plate. The Court found that there was no direct evidence. There were certain circumstances which were rejected by the Sessions Judge and the solitary circumstance was the recovery of the two articles. In these circumstances, the Court held, inter alia, as follows:

" ÂœBe that as it may, in the absence of any direct or circumstantial evidence whatsoever, from the solitary circumstance of the unexplained recovery of the two articles from the houses of the two appellants the only inference that can be raised in view of illustration A to S.114 of the Evidence Act is that they are either receivers of stolen property or were the persons who committed the theft, but it does not necessarily indicate that the theft and the murders took place at one and the same time.

** ** ** Here, there is no evidence, direct or circumstantial, that the robbery and murder formed parts of one transaction. It is not even known at what time of the night these events took place. It was only late next morning that it was discovered that the Mahant and Ganpatia had been murdered and looted. In our Judgment, Beaumonth, C.J., and Sen J. in - Bhikha Gobar v. Emperor, AIR 1943 Bom. 458 (B) rightly held that the mere fact that an accused produced shortly after the murder ornaments which were on the murdered person is not enough to justify the inference

that the accused must have committed the murder.

** ** ** In our judgment no hard and fast rule can be laid down as to what inference should be drawn from a certain circumstance. Where, however, 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."

(Emphasis supplied) The High Court of Karnataka in case of Mallapa Basappa Ihole (Supra) has observed in paragraph-16 as under:-

" 16. We have perused Ex.P.14 and the annexure appended thereto, wherein P.W.21 has furnished ten grounds in justification of his opinion. On careful consideration of his evidence and the contents of Ex.P.14, we are not persuaded to accept his evidence for more than one reason. Firstly, his evidence is not specific with regard to the date and time when he lifted the alleged " chance fingerprint ". Secondly, the said " chance fingerprint " is not produced before the Court. From the evidence of P.W.21, it can be gathered that he had collected the " chance fingerprint " from the beer bottle. The beer bottle is also not seized. His evidence is silent as to the manner in which he lifted the chance finger print. He has merely stated that he collected a " developed fingerprint " and forwarded it to the Fingerprint Bureau. What has been produced along with Ex.P.14 is the developed fingerprint, viz., Ex.P.15 and not the " chance fingerprint ". The non-production of this " chance fingerprint ", in our view, creates strong doubt about the very existence of " chance fingerprint " at the spot as contended by the prosecution. This doubt gets further reinforced from the fact that no contemporaneous document like the mahazar or the photographs of the said chance fingerprints are produced before the Court by way of corroboration. "

Looking to the facts and circumstances of the case and considering the evidence available on record against the appellant, at this stage, we are not inclined to grant bail to the appellant and accordingly I.A. No.9153/2021, is

dismissed.

IA No.9152/2021 for urgent hearing stands closed. List for final hearing in due course.

                (S. A. DHARMADHIKARI)                      (PRAKASH CHANDRA GUPTA)
                         JUDGE                                      JUDGE

         ajit



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Date: 2023.02.08 14:31:46
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