Vimal Jain vs The State Of Madhya Pradesh
2023 Latest Caselaw 11775 MP

                              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 1254 OF 2012

BETWEEN:-
 SIDDHARTH JAIN S/O AJAY KUMAR JAIN,
AGED ABOUT 32 YEARS, BY OCCUPATION
BUSINESS, RUNNING CAR ACCESSORIES
SHOP, R/O TILAK NAGAR, DISTRICT
INDORE (MADHYA PRADESH)
                                                .....APPELLANT
(BY SHRI AVINASH SIRPURKAR SENIOR ADVOCATE
WITH SHRI SHONE SIRPURKAR APPEARING ON BEHALF
OF SHRI YOGESH GUPTA - ADVOCATE)

AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION - PALASIA
DISTRICT INDORE (MADHYA PRADESH)
                                               .....RESPONDENT
(BY SHRI KUSHAL GOYAL - GOVERNMENT ADVOCATE)




             CRIMINAL APPEAL No 1364 OF 2012

BETWEEN:-
VIMAL JAIN S/O RATANLAL JAIN AGE 36
YEARS, OCCUPATION BUSINESS, R/O
SANVID NAGAR, INDORE

                                                .....APPELLANT
(BY SHRI VIVEK NAGAR - ADVOCATE)
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AND
THE STATE OF MADHYA                PRADESH
THROUGH POLICE STATION             PALASIYA
INDORE (MADHYA PRADESH)
                                                      .....RESPONDENT
(BY SHRI KUSHAL GOYAL - GOVERNMENT ADVOCATE)




Reserved on            :     19/7/2023
Pronounced on          :     27/7/2023


      These appeals having been heard and reserved for orders, coming
on for pronouncement this day, JUSTICE ANIL VERMA pronounced
the following:
                           JUDGMENT

This judgment shall govern disposal of criminal appeal No. 1254 of 2012 ( Siddharth Jain Vs. State of MP) and criminal appeal No. 1364 of 2012 (Vimal Jain Vs. State of MP) as both the criminal appeals arising out of common judgment dated 21.9.2012 passed in Sessions Trial No. 569 of 2009 by 7th Additional Sessions Judge Indore whereby the appellants have been convicted and sentenced as under:-

Conviction                          sentence
Section          Act        Imprisonment fine             imprisonment
                                                          in lieu of fine
302/120B         IPC        Life           Rs. 5,000/-    1 years RI
(Appellant                  imprisonment
Vimal Jain)




302/120B         IPC         Life            Rs. 5,000/-   1 years RI
&       302/34               imprisonment
(Appellant
Siddharth
Jain)

It is noteworthy that co-accused Dilip Patidar has filed separate criminal appeal No. 2446/2018 and vide order dated 17.3.2023 it has been disposed off as withdrawn.

2. The facts of the case in brief are that deceased Ajay Jain and his wife Smt. Usha Jain were murdered in the intervening night of 24.3.2009 and 25.3.2009 between 10.30 pm to 6 a.m. in their house situated at Tilak Nagar Indore and they have been killed by causing grievous injuries on vital parts of the body by means of knife. Intimation was given to police by Vijay Kumar Jain (PW-1) brother of deceased Ajay Jain. During investigation, it has been gathered that there was some tension between Ranu wife of appellant Dilip as she was not pleased with both the deceased who were her in-laws. There was also some dispute between appellant Siddharth and his parents regarding running of their car accessories shop properly, due to which appellant Siddharth had hatched conspiracy to kill both of the deceased. Mobile conversations were made between appellant Siddharth with other co-accused persons. Appellant Siddharth gave two blank cheques of Rs. 7,27,000/- to co- accused/appellant Vimal which were later on recovered from his possession. Some of cash amount was given to co-accused Dilip who purchased a motorcycle from that money which was also recovered from

his possession. Blood stained paint, shirt, vest and knives were recovered from possession of co-accused Dilip. Body of both the deceased was sent for postmortem and Dr. N.M. Unda performed the postmortem of both the deceased and opined that death of both the deceased was homicidal in nature. Seized articles were sent to FSL for their chemical examination and seized documents were sent for its examination to the handwriting expert Bhopal.

3. After due investigation, charge sheet was filed before Additional CJM Indore who committed the case to the court of Sessions which was later on transferred to the court of 7th Additional Sessions Judge Indore for the trial.

4. The trial court framed charges under section 302/34 and section 120-B of IPC. The appellants abjured their guilt and took the plea that they have been falsely implicated in the matter. The prosecution examined as many as 42 witnesses while defense 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 present appeals before this court.

6. Learned counsel for the appellant appearing in criminal appeal No. 1254 of 2012 has submitted that the whole prosecution is based upon circumstantial evidence but prosecution has failed to prove the chain of circumstantial evidence. The appellant Dilip was not present on the spot. The appellants have no motive for killing his own parents. There is no evidence on record which could be said that two cheques

found in possession of appellant Vimal was issued by appellant Siddharth. The evidence available against the appellant is not conclusive in nature. The trial court examined evidence of Sudhir (PW-1) who did not state anything against the appellant in his evidence and turned hostile, witness Yashodhar also does not indicate anything regarding the motive available to appellant in his examination. The prosecution has also failed to prove any business relationship or family relationship between co-accused. Ingredients of criminal conspiracy are missing. The prosecution has failed to prove its case beyond reasonable doubt. Hence, he prays that the appeal be allowed and the impugned judgment of conviction and sentence passed by the trial Court be set aside and the appellant be acquitted from all the charges.

7. Learned counsel for the appellant Vimal Jain appearing in criminal appeal No. 1364 of 2012 has submitted that judgment of trial court is contrary to law and facts, it is neither proper nor correct. There is material contradictions and omission in the statements of prosecution witnesses. Hence, he prays that the appeal be allowed and the impugned judgment of conviction and sentence passed by the trial Court be set aside and appellant be acquitted from all the charges.

8. 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 both appeals by submitting that the learned trial court on the basis of proper appreciation of evidence has rightly convicted the appellants and same does not call for any interference. Hence both the appeals deserve to be dismissed.

9 We have heard learned counsel for both the parties at length and

perused the entire record of the trial Court with due care.

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

11. Dr. N.M. Unda (PW-40) who conducted the postmortem of deceased Usha Jain on 25.3.2009 had found as many as 10 antemortem injuries over the person of deceased and he opined that deceased Usha died due to hemorrhagic shock resulting into multiple injuries to the body caused by hard and sharp object and death was homicidal in nature. He has submitted the detailed postmortem report (Ex.P-79).

12 Dr. N.M. Unda also conducted the autopsy of deceased Ajay Kumar Jain on the same day and found five antemortem injuries all over person of the deceased and he opined that deceased died due to hemorrhagic shock resulting of stab wound on the chest and death was homicidal in nature and death duration of deceased is within 24 hours of the postmortem examination (Ex.P-80). However, on the issue of aforesaid injuries no cross examination was done by the accused person. In absence of any challenge to the medical reports on the aforesaid injuries we have no option but to accept the postmortem reports Ex.P-79, Ex.P-80 and evidence of Dr. N.M. Unda (PW-40) that death of Usha and Ajay Kumar Jain were homicidal in nature and before their death they were subjected to cruelty. Since there was no challenge to the aforesaid findings in both the appeals hence we uphold the same findings.

13. 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."

14 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."

15 In the case of Trimukh Maroti Kirkan Vs. State of Maharashtra (2006) 1 SCC 681, the Supreme Court has held as under:-

"12. In the case in hand there is no eyewitness of the occurrence and the case of the prosecution rests on circumstantial evidence. The normal principle in a case based on circumstantial evidence is that the circumstances from which an inference of guilt is sought to be drawn must be cogently and firmly established; that those circumstances should be of a definite tendency unerringly pointing towards the guilt of the accused; that the circumstances taken cumulatively should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was 8 Cr.A. No.2031/2009 committed by the accused and they should be incapable of explanation on any hypothesis other than that of the guilt of the accused and inconsistent with his innocence."

16 In the instant case the trial court has relied upon testimony of Vijay Kumar Jain (PW-1) and Anil Singhai (PW-2) who are brother of deceased Ajay Jain, Devendra Kumar Sethi (PW-3) who is brother in law of deceased Ajay, relative Akash (PW-4), Sudhir (PW-11) who is the brother in law of appellant Siddharth, Meena (PW-12) mother in law of appellant Siddharth, Yashodhar (PW-15) another relative of the deceased, Bharti (PW-19) sister of deceased Ajay, Ajay Badjatya (PW-

20) who is also relative of deceased. Yashodhar (PW-15) deposed in his statement that deceased Ajay informed him that his son Siddharth is not doing work properly and his shop was not running in a satisfactory way so there was some tension between appellant Siddharth with his parents. Bharti (PW-19) also corroborated the statement of Yashodhar (PW-15)

and additionally stated that appellant Siddharth has closed his electrical shop and borrowed money from different persons which was ultimately paid by deceased Ajay Kumar Jain. Yashodhar (PW-15) further deposed in his statement that police has recovered some letters and papers vide seizure Memo (Ex.P-38) from almirah which was situated at deceased room and letter (Ex.P-38A) written by Ranu who is wife of appellant Siddharth. From perusal of the aforesaid letter of Ranu it reveals that both deceased who were her in-laws doubted upon the character of Ranu that she has some illicit relationship with her brother in law (Jeeja) Sudhir and on that issue they harassed Ranu. Letter (Ex.P-38A) written by Ranu proved that her relationship with deceased was not cordial and she was not happy with her in-laws. Surprisingly, Ranu is the material witness but unfortunately prosecution did not examine her before the trial court.

17. Investigating officer Inspector V.S. Dwivedi (PW-39) in para 24 deposed that as per record (Ex.P-19) one criminal case for offence under section 294 and 506 of IPC has been registered against the appellant Siddharth at Central Kotwali Indore and against the appellant Vimal, two criminal cases for the offences under section 354, 294, 506 and 306 IPC have been found registered. The aforesaid criminal record of both the appellants is sufficient to prove that both the appellants were having criminal background.

18 Learned counsel for appellant has taken a plea of alibi by stating that at the time of incident appellant Siddharth was travelling to Delhi and when he got information regarding murder of his parents, he cancelled his further journey at Shivpuri and returned back to Indore. It

is further contended that Siddharth was travelling from Indore to Shivpuri by bus and returned from there by car or taxi. But appellant neither proved concerned bus ticket in his defense nor examined any other relevant witnesses to establish his aforesaid travelling. Even he has not proved any relevant document for engaging taxi from Shivpuri to Indore. He did not examine taxi driver or other witness to prove the same fact, even he has not examined his wife Ranu to prove his aforesaid travelling. It is also noteworthy that Akash (PW-4) deposed that Siddharth informed that he has taken ticket only upto Gwalior and he again questioned that why you have not taken ticket upto Delhi but Siddharth informed that he will extend his ticket from Gwalior. The above explanation given by appellant Siddharth is not appears to be trustworthy and his above conduct appears to be very doubtful.

19 It is some significant to note that as per postmortem report (Ex.P-79) of both the deceased, Dr. N.M. Unda (PW-40) opined that duration of death of both the deceased is 24 hours from the postmortem examination. The appellants did not challenge the aforesaid finding given by Dr. N.M. Unda (PW-40) in his cross examination. Dr. Sudhir Sharma (PW-30) who is senior scientific officer posted in Seen of Crime Mobile Unit Indore deposed in his statement that rigor mortis was found on the body of deceased. Postmortem was conducted on 25.3.2009 at 2.45 pm to 3.20 pm, therefore, such possibility cannot be ruled out that both deceased were murdered in the forenoon or evening time on 24.3.2009. Bharti (PW-19) also deposed that on the date of incident, Siddharth was telling that he is going to Delhi but surprisingly he has returned at about 9-10 am and her mother asked him why you came

back, then he replied that I have missed my purse and quickly he left towards upper stairs.

20/ In view of the aforesaid material evidence available on conduct of appellant Siddharth just prior to incident appears to be very doubtful and suspicious. He had failed to prove his alibi therefore, on the basis of evidence available on record it reflects that relationship between appellant Siddharth and his parents was very tense, his parents were not happy with the performance of appellant Siddharth he has borrowed huge amount from different persons and under compulsion deceased Ajay had been paid the said amount. Ajay was in service and just before few days of the incident, he was going to be retired. He also warned appellant Siddharth that after retirement he himself will run the shop and look after the business. Siddharth have also criminal background, therefore, in view of the aforesaid evidence, it is possible that appellant Siddharth murdered his parents with the help of other accused person and thereafter to save himself he has created a false defense of plea of alibi travel to Delhi at the time of incident.

21/- Vijay Kumar Jain (PW-1) and Inspector V.S. Dwivedi (PW-

39) had proved the FIR (Ex.P-1). Vijay Kumar Jain categorically mentioned in the FIR that at about 10.30 pm Siddharth Jain left his house alongwith his wife Ranu by stating that he is going to Delhi and thereafter nobody came in the said house which clearly indicates that appellant Siddharth was the last person who has been seen soon before death of deceased persons on the spot. During cross examination of Vijay Kumar Jain (PW-1) the appellant did not challenge the said version of FIR (Ex.P-1), therefore, in absence of challenge in the

aforesaid portion of FIR, it is proved against the appellant Siddharth and on the basis of aforesaid evidence prosecution has successfully proved that appellant Siddharth was found last seen together with the deceased prior their murder. Although prosecution has failed to prove recording of mobile phone of accused person but call details (Ex.P-69 to Ex.P-71) were duly proved by prosecution witness Udayvir Singh (Ex.P-33) who is Nodal Officer in IDA Cellular Company and Saidatt Bohre (PW-42) Nodal Officer in AIRTEL company. The exchange of telephone calls at the time of incident and before or after that also fortify the theory of criminal conspiracy. These call details are sufficient to prove that there was continuous conversations between all accused persons which is two days prior to the incident. The aforesaid evidence is sufficient to prove the criminal conspiracy hatched by accused persons to commit murder of both the deceased.

22/ Inspector V.S. Dwivedi (PWW-39) deposed in his statement that he has arrested accused persons vide arrest memo (Ex.P-25 and Ex.P-26) and on the basis of their discovery statement (Ex.P-29, Ex.P- 32, Ex.P-33 and Ex.P-34) he recovered blood stained cloths and four blood stained knives from possession of co-accused Dilip and on 26.3.2009 he recovered two cheques of UCO Bank and the bag containing some cloths which belongs to co-accused Siddharth. Cheque book of UCO Bank and other cheques were recovered from possession of appellant Siddharth through seizure memo Ex.P-35. It is also proved that two cheques amounting to Rs. 7,27,000/- were signed by appellant Siddharth and the name of drawee was not mentioned in the aforesaid cheques. Appellant Siddharth did not explain any good reason for

issuing the aforesaid cheques to the co-accused Vimal. Therefore, seizure of aforesaid cheques from possession of co-appellant Vimal is sufficient to establish his involvement in the aforesaid crime as a part of criminal conspiracy.

23/ There is overwhelming circumstantial evidence to establish the guilt of criminal conspiracy by way of motive enmity, previous conduct of appellants and other circumstances, which would reveal the association of all the appellants and hatching of criminal conspiracy in committing the murder of both the deceased.

24/ A perusal of entire evidence produced by prosecution witnesses, the manner in which they deposed before the trial court and details statement by them are acceptable and there is no valid reason to disbelieve their statements. It is the duty of the appellants to explain the incriminating circumstances proved against them while making statement under section 313 of Cr.P.C. Keeping mum during their accused statements and did not furnish any explanation for aforesaid circumstances, is an additional link in the chain of the circumstances to sustain the charges against them. Recovery of incriminating articles on their disclosure statement is duly proved is also material chain of circumstances against them.

25/ In the case of Arun Bhakta Vs. State of West Bengal reported in AIR 2009 SC 1228 it was held that the circumstances from which as inference as to the guilt of the accused was drawn had to be proved beyond reasonable doubt and had to be shown to be closely connected with the principal fact sought to be inferred from those circumstances. In the said case the cumulative effect of the

circumstances could not negate the presumption of innocence of the accused and the prosecution failed to bring home the offences beyond reasonable doubt. In this case, the circumstances from which the conclusion of guilt of the appellants has been proved are conclusive in nature and all the circumstances are completed and there was no gap left in the chain of evidence. The prosecution has proved the case on the basis of sequence of events and chain of evidence. The defence has failed to establish any fact which would lead to any inference in favour of the accused. The inculpatory fact in this case is incompatible with the innocence of the accused and there is no reasonable doubt with regard to the guilt of the accused. The guilt of the accused has been fully established and the circumstances are conclusive in nature.

26/ It is also settled law that criminal conspiracy is a concept of criminal mind and it is not easy to get direct evidence for proving this offence as conspiracy is hatched in secrecy and can only be perceived by absence of participants. It is also a settled principle of law that it is not necessary that all these conspirators must actively participate in the conspiracy from its beginning to end. Mere agreement to participate in an act is sufficient to constitute this offence. In this regard reliance may be placed in the matter of Rajiv Kumar Vs. State of UP reported in (2017) 8 SCC 791 and Firozuddin Basheeruddin & Ors vs State Of Kerala reported in (2001) SCC (Criminal) 3141.

27/ In view of the above discussion, we find that there is sufficient evidence available on record and the circumstances are linked properly and the guilt of the appellants has been duly established beyond reasonable doubt. Only the appellants are guilty for committing the

murder of deceased Ajay Jain and his wife Smt. Usha Jain. Therefore, we are not inclined to accept the contention of learned counsel for the appellants. We find that the learned trial Court has rightly convicted and sentenced the appellants for offence under Section 302/120-B of IPC.

28/ Learned counsel for appellant Siddharth Jain submits that although appellant Siddharth has already served his entire jail sentence but to remove the stigma of his father‟s murder he is contesting this appeal. But the submission made by learned counsel does not appear to be bonafide because Section 25 of Hindu Succession Act, 1956 provides that a person who commits murder or abets the commission of murder shall be disqualified from inheriting the property of person murdered or any other property in furtherance of succession to which he or she committed or abeted the commission of murder. Therefore, appellant Siddharth Jain who murders his father gets disentitle to his parental property. Therefore, it appears that he is prosecuting the criminal appeal to get inherited the property of his father.

29/ The sentence of Life Imprisonment with fine of Rs.5,000/- for the offence under Section 302/120B to appellant Vimal and sentence of life imprisonment with fine of Rs.5,000/- for the offence under Sections 302/120B and 302/34 of IPC to appellant Siddharth is hereby affirmed. The appellant Vimal Jain in criminal appeal No. 1364/2012 is on bail. His bail bond and surety bond stands cancelled. He is directed to surrender before the concerned trial court forthwith.

30/ Accordingly the present appeals are hereby dismissed. The signed order be placed in the record of criminal appeal No. 1254 of 2012 and copy whereof be placed in the record of connected criminal appeal.

31/ Disposal of the property shall be as per the orders of the trial Court.

32/ The appeals stand dismissed.

33/ Let a copy of this judgment be sent to the trial Court along with the record of the trial Court for information and necessary compliance.

C.C. as per rules.

                      (VIVEK RUSIA)                             (ANIL VERMA)
                        J U D G E                                 J U D G E
BDJ



                 Digitally signed by BHUNESHWAR DATT
                 DN: c=IN, o=HIGH COURT OF MADHYA


      BHUNESH    PRADESH BENCH INDORE, ou=HIGH COURT
                 OF MADHYA PRADESH BENCH INDORE,
                 2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee
                 5a74a94a5534aed3a66d9385cfcfc201e0,


      WAR DATT
                 postalCode=452001, st=Madhya Pradesh,
                 serialNumber=89FD75A8D0C99E05779A327
                 974E46BC85102826CE0604B211E4C91102B4
                 D1269, cn=BHUNESHWAR DATT
                 Date: 2023.07.28 14:09:24 -07'00'