Sandeep vs The State Of Madhya Pradesh
2023 Latest Caselaw 2922 MP

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IN THE HIGH COURT OF MADHYA PRADESH
                   AT I N D O R E
                       BEFORE
        HON'BLE SHRI JUSTICE VIVEK RUSIA
                              &
        HON'BLE SHRI JUSTICE ANIL VERMA



           CRIMINAL APPEAL No. 833 of 2011

BETWEEN:-
JITENDRA S/O KAMAL SINGH JAT, AGED ABOUT
19 YEARS, R/O PATEL NAGAR VILL.GHATA
BILLOD
                                            .....APPELLANT
(BY GIRISH DESAI- ADVOCATE)

AND
THE STATE OF MADHYA PRADESH GOVT.
THRU.MADHAV NAGAR DISTT.UJJAIN (MADHYA
PRADESH)
                                          .....RESPONDENTS
( BY SHRI AMIT SINGH SISODIA- ADVOCATE)

           CRIMINAL APPEAL No. 879 of 2011

BETWEEN:-
SANDEEP S/O PREM NARAYAN JAT, AGED ABOUT
27    YEARS,    R/O     NEW     ABHISHEK
NAGAR,NANAKHEDA, OPP.THUPATI HEIGHTS,
UJJAIN (MADHYA PRADESH)
                                            .....APPELLANT
(BY MS. SONALI GUPTA-ADVOCATE)

AND
THE STATE OF MADHYA PRADESH GOVT.
THROUGH POLICE STATION MADHAV NAGAR,
DISTT.UJJAIN (MADHYA PRADESH)
                                          .....RESPONDENTS
( BY SHRI AMIT SINGH SISODIA-GOVERNMENT ADVOCATE)
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              CRIMINAL APPEAL No. 881 of 2011

BETWEEN:-
SMT. RAJUBAI W/O LATE BHAGWAN SINGH, AGED
ABOUT 27 YEARS, GRAM.JAIWANTPURA KHERI
UJJAIN (MADHYA PRADESH)
                                               .....APPELLANT
(BY SHRI V.S. PARIHAR-ADVOCATE)

AND
   RAINKU AND ANR. S/O BHARATSINGH, AGED
1. ABOUT 22 YEARS, CHANDAN NAGAR THAT
   BILLOD DISTT.DHAR (MADHYA PRADESH)
   THE STATE OF MADHYA PRADESH THRU: P.S.
2.
   AJAK (MADHAV NAGAR) (MADHYA PRADESH)
                                            .....RESPONDENTS
     Reserved on          -   04.01.2023
     Delivered on         -   17.02.2023


This appeal coming on for orders this day, JUSTICE VIVEK
RUSIA passed the following:

                        JUDGMENT

Since all the aforesaid criminal appeals arise out of common judgment, therefore, these are being simultaneously decided by a common judgment.

2. Criminal Appeal no. 833 of 2011 has been preferred by appellant Jitendra, and Criminal Appeal No. 879 of 2011 has been preferred by appellant Sandeep against the judgment and conviction and order of sentence dated 31.05.2011 whereby both appellants have been committed for the offence punishable under Section 302/34 and 201 of IPC and sentenced to life imprisonment and seven years R.I.with fine of Rs.5,000/- and Rs.1000/- with default stipulation passed in Special Case No.84/2010.

3. Criminal Appeal No. 881 of 2011 has been preferred by

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Smt. Rajubai against the judgment dated 31.05.2011 whereby the accused therein has been acquitted for the offence punishable under Section 302/34, 201, 302/120-B, 394/397 of IPC and Section 3(2)(5) of SC/ST Act.

The case of prosecution; -

4. On 10.05.2010 at about 09:30, Bhagwan Singh (hereinafter referred to as '' deceased") picked Jayshankar (PW-1) and Narendra (PW-10) from the village and came to Indore to fill the AC gas in his Tavera SUV. On the way, the deceased was receiving calls from the lady. While going towards aerodrome road, Indore the deceased told Jayshankar and Narendra that his aunt Asha is calling him at Village Londiya. They stopped the vehicle near the village and started waiting for Asha to come there. After some time, on a motorcycle, Sandeep, Jitendra and one unknown (later on identified as Rinku) came there. Sandeep fired the gunshot from his country-made pistol at the deceased but missed the bullet and crossed the windows of Tavera. Thereafter, they took out of deceased from the Tavera. Sandeep gave two blows on his head by means of Tami. Jitendra gave 3-4 blows by means of a knife. Rinku told that the deceased made their life miserable and let finished him today. Thereafter, Sandeep assaulted the deceased many times till he die on the spot. They told Jayshankar and Narendra to load the dead body in the boot space of the vehicle and Sandeep drove the vehicle towards Ujjain. Rinku followed them on the motorcycle. They reached Bhartipuri road and got out of the vehicle at Triveni, Sandeep and Jitendra threatened Jayshankar and Narendra not to tell anyone about this incident otherwise they would kill them even. Thereafter, Sandeep drove the vehicle towards Ujjain City and left the vehicle towards Bharatpuri, Rishi Nagar Road.

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5. Chowkidar Saudan Singh gave information to Mahadev Singh Bhadoriya (PW-25) that some person sitting in Tavera and a motorcycle were fighting thereafter they took the injured person from Tavera towards Karadiya Road. The said information was recorded in Rojnamchasanha at serial No.453 (Ex.P/53). A.S.I Solanaki and Head Constable Sitaram went to the spot and gave information S.S. Parmar, T.I. on his mobile. Shri S.S. Pamar T.I. found one pair of sleeper, spectacles. Blood, card of Narendra and other papers on the spot, all were seized and information was given to Chimanganjmandi and Control Room.

6. At the same time Shri K.K. Upadhayay (PW-22) received information on the telephone that in Bharatpuri area one Tavera vehicle is parked unattended. He reached the spot and found Tavera bearing registration No.MP-09-BA-5003 and in the rear class of vehicle Dainik Bhaskar of dated 08.05.2010 (Article G) was pasted, upon further search one dead body was found lying in the boot space of Tavera. The Such information was recorded in Dehati Nalish (Ex.P/46) followed by the registration of an FIR (Ex.P/47) under section 302 I.P.C. against the unknown person. Near Tavera vehicle passbook of the Bank of India, a Black leather wallet and Dainik Bhaskar paper were seized as Ex.P/49.

7. On 11.05.2010, Sajjan Singh (PW-23) has identified the dead body of Bhagwan Singh being his elder brother. Dr P.M. Kumawat (PW-13) conducted the autopsy and found nine injuries all over the body, fractures on the left frontal, parietal occipital bones and skull bones etc. He opined that the deceased died because of these antemortem injuries and death is homicidal.

8. During the investigation fingerprint expert Shri Laxmi Narayan Sabore (PW-18) could locate three chance prints from the rear gate glass of Tavera. Photographs were taken, the blood-

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stain soil and plain soil were seized. Nazri Naksha PW-21 was drawn.

9. Since ID card of Narendra was recovered by the police, therefore, he was called by the police and interrogated. His statement under Section 161 of Cr.P.C. was recorded in which he narrated the entire story as stated in para 1 of this judgment. Thereafter Jayshankar was also called by the police, who also disclosed the same story about the incident. On basis of their disclosure, the accused Sandeep and Jitendra were arrested. On disclosure of Sandeep, a country made pistol, gold chain, and Mobile of Bhagwan Singh were recovered. Knife has been recovered from the house of Jitendra and on disclosure of Rinku, a TVS motorcycle has been recovered from the house of Jitendra. One Katta 315 bore, one used cartridge and two live cartridges have been recovered from Sandeep. Jitendra has also got recovered a knife in which blood stains were found on it. In further investigation, Asha Bai and Chandrakanta were arrested and their mobile phone were seized. The fingerprints of Asha, Jitendra and Rinku were taken and sent for matching. Gold chain and other belongings of the deceased were identified by Sajan Singh.

10. As per the FSL report Ex.P/1 sand taken from the scene of the crime and in the trouser of Narendra and the shirt and pants of Jayshankar traces of human blood were found. After completing of investigation, charge-sheet was filed before the Judicial Magistrate First Class from where it was sent to the court of session for trial by way of comital. The charges were framed which were denied by the accused and pleaded for the trial. Hence the prosecution was called upon to prove the charges.

11. So far as the cause of death of the deceased is concerned

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there was no challenge by the appellants, hence, the autopsy report of the doctor was accepted and learned trial court has held that it was homicidal death. The trial court has framed nine issues for adjudication. In order to prove the charges, the prosecution examined 27 witnesses and exhibited 60 documents. In defence, the appellants have not examined any witnesses.

12. After appreciating the evidence that came on record, the learned Sessions Judge has convicted Sandeep and Jitendra only for the offence punishable under Section 302/34 of IPC and sentenced them as stated above. Asha Bai Chandrakanta Bai @ Chandu Bai and Rinku have been acquitted by the trial court. Hence these Criminal appeals are against conviction by the appellants and against the acquittal by the complainant. Submission of the appellant's counsel

13. Shri Desai and Ms. Sonali Gupta learned counsels argued that in fact, the police arrested Narendra and Jayshankar suspecting them accused of this crime and they were kept in the police station for the day but they have been made witnesses and on their falls and concocted stories these appellants and three other were implicated for the murder of the deceased. The police found visiting card of Narendra on the place of the fight despite that he has not been made accused. It is further submitted that it is unusual that after committing the murder of the deceased, these two witnesses were taken in the said vehicle and thereafter they were set free without any threat. It is further submitted by the learned counsel that it is dreadful for any accused to set free to any person when he could be an eyewitness of the crime committed by him. Learned Trial judge has lost side the conduct of these so called witnesses despite knowing they did not inform about the murder of the deceased to his family members as well

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as Police. They came back to their village and, on the way, there was various police station but they did not give any report. Narendra disclosed the incident only when he was called to the police station as a suspect then the entire story was cooked up by the police in order to save Narendra and Jayshankar. The present appellants had no motive to commit the murder of Bhagwansingh. It is further submitted that the police have not conducted the proper investigation. According to eyewitnesses PW-1 and PW- 10, Sandeep drove the vehicle, then why fingerprints of Sandeep were not taken from the steering wheel of Tavera. Therefore, these appellants are entitled for benefit of the doubt for the acquittal from the charge of section 302 I.P.C. It is further submitted that the learned Trial Judge have not come up with the theory of loot, kidnapping and conspiracy, therefore, Rinku, Asha and Chandrakanta have been acquitted in this case. When they have been acquitted then there was no motive for to these two appellants to commit the murder of the deceased. They are in jail since 2010 for the offence which they have not been committed. Hence, they are entitled to acquittal. Counter submission of learned Government Advocate

14. Learned Government Advocate has argued in support of the judgment by submitting that after due appreciation of evidence, learned session Court, has rightly convicted the appellants. It is further submitted that there is no reason to doubt on the testimony of eyewitnesses PW-1 and PW-10. Their presence in the vehicle along with the deceased has been established by examining PW-3 whose testimony remain uncontroverted. The looted article and arms were recovered from their possession on their disclosure. So far as the fact regarding non-lodging of the FIR by PW-1 and PW-10 is concerned, probably they were afraid because in front of them deceased being Sarpanch was brutally murdered by these appellants, hence, no interference is called for and the appeal is liable to be dismissed.

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Submissions of learned of the complainant.

15. Learned counsel appearing on behalf of Rinku Bai (appellant in Criminal Appeal No.881/2011) submitted that accused Rinku was wrongly been acquitted when his presence has been established by PW-1 and PW-10 with his dock identification in the Court. Hence, he is also liable to be convicted alongwith these appellants, by way of reversal of the findings of the acquital.

Appreciation and our conclusion.

16. The appellants alongwith three others were tried for the offence punishable under Section 302/34, 201, 302/120-B, 394/397 and 3(2) (5) of SC/ST Act, out of which they have been acquitted from the charges 302/120-B, 394/397 and 3(2) (5) of SC/ST Act against which no criminal appeal has been filed by the State. The entire conviction of these appellants is based on the testimony of PW-1 and PW-10 but their testimony has been disbelieved for accused Rinku and he has been acquitted. Hence the issue which remains for consideration is whether these two eyewitnesses are trustworthy witnesses who can be relied on for upholding the conviction of these two remaining accused i.e. the appellants.

17. As per the statement recorded under Section 161 of Cr.P.C. of PW-1 and PW-10, on 11.05.2010 in the morning of Monday at 09:00 Am, they received a call from the deceased that he is coming to pick them to go to Indore to get fill the gas in the AC in the Tavera car. They boarded the Tavera along with Badri in the Village Jeevanpurkheda . After some time Bardi gets down from the Tavera in Village Gopalpur. At 09:00 Am, the deceased proceeded towards the Indore. The deceased told P.W.-1 and

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P.W.-10 that first, they would go to Londiya village to meet one lady. Between 11:00 to 11:30, they had breakfast at village Betma. Thereafter they reached village Karadiya and parked the Tavera to wait for the lady to come there. Before that Sandeep, Jitendra and one unknown person i.e. Rinku came there. Sandeep fired the gunshot from the window side of the driver and thereafter they took out the deceased from the car and assaulted him by means of Tami and a knife. They have further deposed that the deceased died on the spot, thereafter they were instructed by the appellants to keep the dead body in the dicky of Tavera. Thereafter they drove towards Indore via Ujjain and Nanakheda. Near Triveni, they were let to go with threatening, not to disclose the above crime to anyone. Thereafter Tavera proceeded towards Ujjain. They came back home by bus by 04:30 pm and did not inform anyone in the family of the deceased and at the night they went to Madhav Nagar Police Station to lodge the FIR but the same was lodged on the next day i.e. 11.05.2010. The learned trial court believed P.W.-1 & P.W.-10 that might have been scared by this incident and therefore did not inform anyone or to police hence their conduct appears to be normal and they should be believed, but we are not willing to give approval to this opinion of the learned Trial court.

18. During this entire incident, PW-1 and PW-10 did not call for help and did not try to get down from the vehicle and from 04:30 pm till night they came back to their house, even though they cross the Madhav Nagar Police Station but did not inform to the police, therefore, their conduct is not normal but surprisingly trial court has found their conduct normal.

19. According to Investigating Officer K.K.Upadhayay (PW-

22) the section 161 Cr.P.C. statements of PW-1 and PW-10 were

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recorded on 11.05.2010, it means the incident took place on 10.05.2010. This fact is also gets confirmed from the statement recorded under Section 161 of Souram Singh also that on 10.05.2010 at about 12:00 to 01:00 pm he saw a certain person fighting near Tavera and a motorcycle and they took the injured in the Tavera. The said information was recorded in Rojnamacha at serial No.453 dated 10.05.2010 at 05:30 at Police Station Betma Ex.P/55, Ex.P/57 and Ex.P/59. Telephone calls of the deceased were recovered in which the last call was received by the deceased on 10.05.2010 at 07:42:37 Am and the duration of the call was 97 seconds.

20. It is apparent from the aforesaid evidence came on record that the assault took place on 10.05.2010 and the dead body was also recovered on 10.05.2010 but the statement of so called eye witnesses i.e. PW-1 and PW-10 were recorded on 11.05.2010. According to PW-1 and PW-10, they received a call from the deceased on 09.05.2010 in the morning of Monday but there are calls made at 09:00 am on 10.05.2010 i.e. Monday. The trial court has believed these call records and acquitted accused Asha and Chandrakanta because no call made from them was found call list of the mobile of the deceased. The dead body was examined by autopsy surgeon PW-13 and as per his report the rigour mortice had developed in the entire body and skin was peeling off by touching the finger. In cross-examination, he stated that in the summer season, rigour mortice remains for 2 to 3 days and deceased possibly the deceased died 48 hours ago. This autopsy was started at 10:50 am, which means the deceased was not murdered on 10.05.2010. The last call was on 09.05.2010 at 09:28 PM and thereafter only call was found on 10.05.2010 at 07:42 am, therefore, the timing of the death of the

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deceased Bhagwansingh is doubtful. The prosecution has failed to prove that he was murdered on 10.05.2010 even otherwise in the Tavera vehicle in which the dead body was found the news paper of 08.05.2010 was pasted in the rear glass.

21. The prosecution came up with the theory of conspiracy that all these five accused conspired to commit the murder of the deceased and looted a gold chain wallet etc. Recovery of the looted article has not been found proved by the learned trial court and conspiracy has not been found thus Asha and Chandrakanta have been acquitted. The presence of Rinku was not found proving for which PW-1 and PW10 have been disbelieved hence in absence of conspiracy and murder for loot there has to be a motive for these appellants to murder the deceased.

21. K.K. Upadhayay (PW-22) in his cross examination has admitted that he found Dainik Bhaskar papers dated 08.05.2010 and 09.10.2010 (Article G) in the Tavera and he took a statement of Jayshankar on 11.05.2010, therefore, he has presumed that the Bhagwansingh was murdered on 10.05.2010 and apart from that he has not done any investigation to know the actual date of death. He has also admitted that from the statement of Narendra and Jayshankar, he came to know about the place of assault but he did not visit there. He has also admitted that he did not recover the bloodstain cloth of Narendra and Jayshankar. Only after the order of the Superintendent of Police, they handed over the cloth on 11/12.05.2020. It is important to note that the Investigating Officer did not investigate how the articles belonging to P.W.-1 Narendra were found on the spot when there is no evidence to show that there was any scuffle or assault between P.W.-1, P.W.-10 with the accused persons.

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Narendra(P.W.-1 ) was called to the police station, only on the basis of his belongings were found on the spot. Initially, P.W.-1 was the prime suspect in this crime but he has been made a witness in this case. Thus we find substance in the submission of Shri Desai, learned counsel for the appellant.

22. Initially police came up with the story of conspiracy and loot and collected the material, tried to establish the charge under Sections 394 and 397 but could not establish it beyond a reasonable doubt. In Naksha Panchanama it is recorded that the deceased is wearing a golden ring and bracelet hence had it been a case of loot, the accused would have looted these articles also. It is a case of false implication of these appellants by the police.

23. Apart from that on the cloth of Narendra and Jayshankar human blood was found but their fingerprint was not taken by the police because according to them they were in the vehicle from Karadiya village Nanakheda which also creates doubt about their presence in the vehicle and makes them untrustworthy witnesses. They admitted in their deposition that from Karadiya till Ujjain, they crossed 5 to 10 villages but they did not raise any alarm or did not lodge a report, neither they informed the incident to the family members of the deceased, therefore their family members did not ask about the blood contained in their cloths. Their conduct was not normal but suspicious especially when they have been disbelieved the implication of Rinku. The seizure of a motorcycle from Rinku has also been disbelieved. The seizure of chains, cartridges, pistol, knives and motorcycles has also been found doubtful by the Court. The police took 3 chance finger print and matched them with only Sandeep, Jitendra, Asha and Chandrakanta but finger prints of Narendra and Jayshankar were not taken as they were inside the vehicle

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for a very long period of time. This is gross negligence in the investigation on the part of Investigating Officer.

24. According to PW-1 and PW-10 the direction of the accused person kept the dead body wood space therefore, there might be a possibility that they touched the rear glass of the vehicle at the time of opening and closing the gate hence the chance fingerprint appeared in the glass. The Trial Court has also disbelieved the Ex.P/19 fingerprint expert report. The Trial Court has held that on the basis of the statement of PW-1 and PW-10, they are liable to be convicted as there was no previous enmity and there was no reason for implicating these two appellants. There is a discharge for the offence punishable under Section 120-B, 394 and 397 of IPC, there was no motive for these appellants to commit the murder of the deceased, hence, the conduct of PW-1 and PW-10 is doubtful.

24. In view of above discussion, we pass the following order;-

(a) Criminal Appeal No.833 of 2011 & Criminal Appeal No.879 of 2011 are hereby allowed. The judgment dated 31.05.2011 is hereby set aside. Appellants i.e. Jitendra and Sandeep are hereby acquitted of the charges levelled against them. They be set at liberty. At present, they are in custody. They shall be released forthwith, if not wanted in any other case.

25. Criminal Appeal No.881/2011 preferred by Smt. Rajubai against the acquittal of Rinku is hereby dismissed as this Court has acquitted Sandeep and Jitendra who were convicted on the testimony of Jayshankar (PW-1) and Narendra (PW-10) alone who have been disbelieved by us in the above discussion. The presence of Rinku has not been established at the time of the commission of the crime by the prosecution.

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26. Office is directed to communicate this order to the court concerned forthwith to ensure compliance and also to send back the lower court record.

                            (VIVEK RUSIA)                               (ANIL VERMA)
                                JUDGE                                     JUDGE
            praveen




Digitally signed by
PRAVEEN NAYAK
Date: 2023.02.22 13:18:34
+05'30'