Madhya Pradesh High Court
The State Madhya Pradesh vs Kishore Patel on 4 March, 2024
Author: Sushrut Arvind Dharmadhikari
Bench: Sushrut Arvind Dharmadhikari, Pranay Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUSHRUT ARVIND DHARMADHIKARI
&
HON'BLE SHRI JUSTICE PRANAY VERMA
ON THE 4 th OF MARCH, 2024
MISC. CRIMINAL CASE No. 39154 of 2021
BETWEEN:-
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH P.S. LASUDIYA (MADHYA
PRADESH)
.....APPLICANT
( SHRI GAURAV SINGH CHOUHAN, LEARNED DY. GOVT. ADVOCATE FOR
THE APPLICANT/STATE)
AND
1. KISHORE PATEL S/O SAWAN PATEL, AGED ABOUT
43 YEARS, VILLAGE PIPALYAKUMAR, INDORE
(MADHYA PRADESH)
2. KAMLESH VERMA S/O DURGAPRASAD VERMA,
AGED ABOUT 37 YEARS, R/O 01 BABUGANDHI
NAGAR, INDORE (MADHYA PRADESH)
3. SONU S/O MANOHAR CHOUDHARY, AGED ABOUT
33 YEARS, R/O VILLAGE PIPLYAKUMAR, INDORE
(MADHYA PRADESH)
4. RAHUL CHOUDHARY S/O SANTOSH CHOUDHARY,
AGED ABOUT 33 YEARS, R/O VILLAGE GRAM
BHAMORI, INDORE (MADHYA PRADESH)
5. RAJKUMAR S/O CHETULAL CHAUHAN, AGED
ABOUT 37 YEARS, R/O VILLAGE VILLAGE
PIPLYAKUMAR, INDORE (MADHYA PRADESH)
6. KAMAL S/O SHALIGRAM PATEL, AGED ABOUT 35
YEAR S, R/O VILLAGE PIPLYAKUMAR, INDORE
(MADHYA PRADESH)
Signature Not Verified
7. VIRENDRA S/O DAMODAR CHOUDHARY, AGED
Signed by: PREETHA HARI
NAIR
Signing time: 04-03-2024
18:47:43
2
ABOUT 44 YEARS, R/O VILLAGE SOMALYA CHAK,
BAROTHA, DEWAS. PRESENT ADDRESS - 128-129,
MAHALAKSHMI NAGAR, INDORE (MADHYA
PRADESH)
8. VINAY S/O BRIJBHOOSHAN PANDEY, AGED
ABOUT 42 YEARS, R / O VILLAGE HATHEDA,
TEHSIL VIJAYRADHOGAD, DISTRICT KATNI,
PRESENT ADDRESS- 206, UPHAR APARTMENT, R-
SECTOR, MAHALAKSHMI NAGAR, INDORE
(MADHYA PRADESH)
9. RAHUL MISHAL S/O RAJENDRA MISHAL, AGED
ABOUT 31 YEARS, R/O 289, SHIVAJI NAGAR,
INDORE (MADHYA PRADESH)
.....NON-APPLICANTS
(NONE FOR THE NON-APPLICANTS)
Reserved on : 04.09.2023
Pronounced on : 04.03-2024
..................................................................................................................
This application having been heard and reserved for orders, coming
on for pronouncement this day, Hon'ble Shri Justice Sushrut Arvind
Dharmadhikari passed the following :
ORDER
Applicant has filed this leave to appeal under Section 378(3) of Cr.P.C.
being aggrieved by the impugned order dated 14.12.2020 passed by the VIIth
Additional Sessions Judge, Indore(M.P.) in Case No.400519/2011(S.T.
No.519/2011), whereby the respondents/accused have been acquitted from the
charges under Sections 147, 148, 302/149 and 120-B of IPC and Section 25(1)
(A) and 27 of the Arms Act.
02. The accused persons, all of them, have been charged in respect of
the offences punishable under sections 147, 302 read with 149 and 120B of the
IPC of having formed an unlawful assembly on 01.4.2011 in night between
10.47 to 11.00 o'clock at Lasudiya, between Tulsi Nagar Culvert and Suncity,
Indore, the object of unlawful assembly was to commit murder of Sanjay
Namdeo Thakre and committing riot by using violence of having committed
murder of Sanjay Thakre, which is an offence punishable with death or life
imprisonment. In addition to above, the accused persons namely Kishor,
Kamlesh Sonu, Rahul and Rajkumar were also charged with offence punishable
under Section 148 of IPC, who were also member of unlawful assembly and
was carrying deadly weapon. In addition to the above charges, accused
persons Kishor and Kamlesh, are also charged under Sections 25(1)(A) and 27
of the Arms Act of having been found to be in possession of country made
pistol with bullets, which was seized from them on 11.04.2011 for which they
had no valid licence.
0 3 . The case of the prosecution, in brief, is that on 02.04.2011,
complainant Vinod Thakre lodged a report to the effect that his brother Sanjay,
resident of Tulsi Nagar, who was elected as President on 14.11.2010. Owing to
dispute on construction of multi with builders in Tulsi Nagar residential area,
Ramakant Choukse, Kiran Deshmukh, Sameer Narad, Shailendra Narad and
Vakeel Guddoo Yadav, cases were filed in the Court, in which Sanjay had
succeeded. There was dispute with Dr. Vijay Pradhan in respect of the post of
President and with Kishor Patel in respect of passing the building construction
plan(Naksha). On 01.04.2011, Sanjay called Vinod Thakre to his house and
informed that he was receiving intimidating calls from builders and that his life is
i n danger. Then on 01.04.2011 only, someone called on his landline and
informed that Sanjay has been shot dead and he is lying in a car near Tulsi
Nagar Culvert. When he reached Tulsi Nagar Culvert with his younger brother,
Deepak on motorcycle, they saw Sanjay lying dead on the front seat of a car.
There were marks of gun shots on right temporal region and on the forehead
above right eyebrow. Murder of Sanjay was suspected to have been committed
by Vinod Pradhan, Sarpanch Kishor Patel and other builders. On the report of
the complainant, crime was registered and investigation was commenced. After
completion of investigation, charge-sheet was filed against the accused
persons.
04. Learned Trial Court after appreciating the oral as well as documentary
evidence available on record acquitted the non-applicants from all the aforesaid
offences vide the impugned order.
05. Learned counsel for the applicant/State submits that the learned Trial
Court vide impugned judgement, considering the inconsistency in the statement
of the prosecution witnesses erroneously, acquitted the non-applicants in the
matter. Prosecution has proved its case beyond reasonable doubt. There is
nothing on record, which makes their statements doubtful. Hence, the impugned
judgement is not sustainable and is liable to be set aside.
06. Heard learned counsel for the applicant/State and perused the record.
07. On perusal of the record and evidence adduced by the prosecution,
all the material witnesses have turned hostile and even in their examination
nothing has come on record, which could support the prosecution's case with
regard to the seizure of articles. The learned Trial Court vide impugned
judgement has held that the evidence led by the prosecution reveals that the
Investigating Officers involved in the case have not opted to call for
independent witnesses even when they were available. Evidently, when
independent witnesses were available to the police, why the investigating officer
stuck to the only witnesses, whose interest is explicitly titled one way and why
they did not resort to the independent witnesses, is absolutely not
understandable. On the basis of the said state of affairs, the fact that not
resorting to independent witnesses is sufficient to create doubt in respect of
action of police of seizure from the accused persons. No evidence in respect
of ownership or possession of the said plot has been produced in the case by
the prosecution. There are numerous discrepancies in the prosecution story
with respect to recovery of articles from the accused persons and on the basis
of evidence led by the prosecution, nothing conclusive can be derived. As per
FSL report(Exhibit-P/9) it appears that there were some delay in sending the
articles to the FSL which is treated to be a circumstance creating doubt about
the connection of the articles with the crime. In this case where and in what
position, the seized articles kept lying for a period as extraordinary long as of 3
months, has not been brought to the knowledge of the trial Court.
0 8 . Therefore, what emerges from the evidence is the fact that the
prosecution has not been able to show as to where the sealed packets of seized
articles were kept lying for a period of 3 years and subsequently when the
articles reached FSL, they were not found seal packed as they were received
from the police. The report of the FSL(Exhibit-P/41) reveals that for 3 firearm
entry wounds, 2 bullets have been examined by the FSL. Out of the said 2
bullets, only1 is reported to be fired from the pistol allegedly seized from the
accused person Kamlesh. Regarding rest of the bullets, there is no conclusive
evidence available.
0 9 . As per report of Dr. Sudheer Sharma(PW28), Retired Forensic
Expert, one small piece of bullet and blood stained papers were also found
inside the car, in which the deceased Sanjay was murdered, but neither the piece
of bullet nor the papers etc. have been seized. As per the said witness,
photographs of the crime scene from different angles were also taken by the
prosecutions, but the prosecution has not bothered to produce the photographs
before the Court and take necessary steps in connection with the piece of
bullet.
10. Yet another feature of the prosecution case is that it is too heavily
dependent on the evidence of kith and kin of the deceased Sanjay Thakre.
When the prosecution required evidence of the accused persons being seen on
spot of the incident soon before it took place, the sister of the deceased
Surekha(PW12) and Dhanraj Patil(PW17) were present on the spot. When
memorandum of information was rquired to be recorded, the brother of the
deceased Pratap(PW21) and brother in law Dhanraj Patil(PW7) were present on
the spot. The testimony of the witnesses does not become unreliable merely on
account of the fact that they are close relatives of the deceased or are interested
in the prosecution case but in the instant case, looking to the fact that the place
of murder is an open place, the place from where recovery of articles have been
made are open places, where other people can also have access and are not
such places, which are in control and possession of the deceased or his 'kith
and kin' only. The prosecution's case in respect of hostility between the
deceased Sanjay and any of the accused persons is not well founded. Not only
this, witnesses Dhanraj Patil(PW17) and Pradeep Thakre(PW21) have, at most
of the time, reached the spot/crime of action on their own without any notice.
In the instant case, the prosecution story entails series of coincidences, which
cannot be acceptable. In the present case, lack of independent witnesses and
recovery of weapon being doubtful, serious discrepancies in the statement of
the witnesses, have been treated to be sufficient to create a reasonable doubt as
to the genuineness of the prosecution case.
11. In the light of the aforesaid, learned Trial Court has not committed
any error in holding the fact that the prosecution has failed to prove its case
beyond reasonable doubt. The scope of interference against acquittal of
criminal charges is extremely limited as explained by the Apex Court in the case
of Hakeem Khan and others vs. State of M. P., 2017 5 SCC 719, relevant
portion of which are reproduced below:-
12. For all these reasons, we are of the considered opinion that the
High Court clearly fell in grave error in setting aside the acquittal in
the present case. We have to remind ourselves that the law on reversal
of acquittals is well settled and is stated in many judgments, but one of
them needs to be quoted here. In Murugesan Vs. State (2012) 10 SCC
383 this court went into the meaning of different expressions-
"erroneous", "wrong" and "possible", and has stated the law as
follows:-
33. The expressions "erroneous", "wrong" and "possible" are
defined in Oxford English Dictionary in the following terms:
"erroneous.- wrong; incorrect. Wrong.- (1) not correct or true,
mistaken. (2)unjust, dishonest, or immoral.
Possible.- (1) capable of existing, happening, or being achieved.
(2) that may exist or happen, but that is not certain or probable.
3 4 . It will be necessary for us to emphasize that a possible view
denotes an opinion which can exist or be formed irrespective of the
correctness or otherwise of such an opinion. A view taken by a court
lower in the hierarchical structure may be termed as erroneous or
wrong by a superior court upon a mere disagreement. But such a
conclusion of the higher court would not take the view rendered by the
subordinate court outside the arena of a possible view. The
correctness or otherwise of any conclusion reached by a court has to
be tested on the basis of what the superior judicial authority perceives
to be the correct conclusion. A possible view, on the other hand,
denotes a conclusion which can reasonably be arrived at regardless
of the fact whether it is agreed upon or not by the higher court. The
fundamental distinction between the two situations have to be kept in
mind. So long as the view taken by the trial court can be reasonably
formed, regardless of whether the High Court agrees with the same or
not, the view taken by the trial court cannot be interdicted and that of
the High Court supplanted over and above the view of the trial court."
12. In view of the aforesaid discussions, there is nothing on record to
take a different view than that of one taken by the Trial Court hence, this Court
is of the considered opinion, that learned Trial Court has rightly recorded the
findings to acquit the non-applicants from the charges framed against them.
There is no perversity or illegality in the findings recorded by the Trial Court.
13. Accordingly, the application filed under Section 378(3) of Cr.P.C.
seeking leave to appeal is devoid of merit and is hereby dismissed.
(S. A. DHARMADHIKARI) (PRANAY VERMA)
JUDGE JUDGE
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