Madhya Pradesh High Court
Amjad vs The State Of Madhya Pradesh on 6 March, 2024
Author: Vivek Rusia
Bench: Vivek Rusia, Pranay Verma
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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 PRANAY VERMA
CRIMINAL APPEAL No. 1421 of 2010
BETWEEN:-
JITENDRA S/O PURSHOTTAM SHARMA, AGED ABOUT 22 YEARS,
OCCUPATION: LABOUR RAILWAY COLONY MAKSI PS MAKSI DISTT.
SHAJAPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ANIL OJHA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE STATION
NILGANGA UJJAIN (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI KUSHAL GOYAL, DEPUTY ADVOCATE GENERAL)
CRIMINAL APPEAL No. 1423 of 2010
BETWEEN:-
AMJAD S/O SHAHJAD KHAN, AGED ABOUT 19 YEARS, OCCUPATION:
SERVICE RAILWAY COLONY,JAORA,DISTT.RATLAM (MADHYA
PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE STATION
NEELGANGA,UJJAIN (MADHYA PRADESH)
Signature Not Verified
Signed by: RAVI PRAKASH
Signing time: 06-03-2024
17:48:15
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.....RESPONDENTS
(BY SHRI KUSHAL GOYAL, DEPUTY ADVOCATE GENERAL)
Reserved on : 23th February, 2024
Pronounced on : 06th March, 2024
These appeals having been heard and reserved for judgment
coming on for pronouncement this day, JUSTICE VIVEK RUSIA
pronounced the following:
JUDGMENT
Since these appellants are convicted by a common judgment
of conviction and sentence, therefore, these criminal appeals are
finally heard and being decided by this common judgment.
The appellants have filed these Criminal Appeals under
Section 374 of the Code of Criminal Procedure, 1973 against the
common judgment of conviction and sentence dated 25.11.2010
passed by the IX Additional Sessions Judge, Ujjain in Sessions Trial
No.581/2009, whereby the appellants have been convicted and
sentenced as under:-
CONVICTION SENTENCE
Section Act Imprisonment Fine if deposited Imprisonment
details instead of a fine
364/34 IPC Life Imprisonment Rs.5,000/- 03 months' R.I.
302/34 IPC Life Imprisonment Rs.10,000/- 03 months' R.I.
397/34 IPC 10 years' R.I. Rs.2,000/- 01 month's R.I.
201/34 IPC 03 years' R.I. Rs.2,000/- 01 month's R.I.
02. As per the prosecution story, the complainant - Nirmal
Kumar lodged a missing person report on 17.09.2009 that his son
namely Manish (deceased) had been missing since the evening of
16.09.2009. At the same time, Suresh S/o Kanhaiyalal gave
information to the police station that between the agricultural field of
Mohan Kumawat and the road, one dead body was lying in bushes.
The aforesaid information was recorded under Section 174 of the
Cr.P.C. The dead body was identified as a missing person Manish by
his father / complainant, thereafter, an F.I.R. was registered and the
matter was taken into investigation. The spot map was prepared and
after calling the Panch Witnesses, Lash Panchayatnama was also
prepared. The dead body was sent for postmortem. From the spot, a
leaf of the tree containing bloodstains, a broken beer bottle, two
coins, and one pair of slippers were seized. The bloodstained clothes
of the deceased were received from the hospital.
03. Upon suspicion these two appellants were arrested as the
deceased was last seen with them in the Railway Colony, Ujjain.
After arresting them, memorandum statements were recorded. On the
statement of Amjad, a light-colored wallet and the driving license of
the deceased were seized and upon disclosure by Jitendra, one mobile
of Spice Company of the deceased was recovered from one Mukesh.
All the seized articles were verified by the complainant Nirmal
Kumar. The police also recovered the bloodstained clothes of Jitendra
& Amjad. The seized articles collected from the scene of the crime
were sent to Forensic Science Laboratory, Gwalior. The statements of
the witnesses were recorded. The investigation was completed and
charge-sheet was filed before the Judicial Magistrate First Class.
04. The trial was committed to the Sessions Court, by which
charges under Sections 364, 302, 397 & 201/34 of the IPC were
framed against these appellants, which they denied and pleaded
innocence. Hence, the prosecution was called upon to adduce the
evidence. The prosecution examined 22 witnesses and exhibited 28
documents. In defence, the appellants did not examine any witnesses
and exhibited only four documents. After evaluating the evidence that
came on record, the learned IX Additional Sessions Judge, Ujjain
passed the common judgment of conviction and sentence dated
25.11.2010 in Sessions Trial No.581/2009, hence, these two criminal
appeals are before this Court.
05. Learned counsel for both the appellants raised common
grounds to assail the findings by submitting that these appellants
have been convicted on the basis of circumstantial evidence as the
prosecution failed to examine any eye-witness in this matter. They
are residents of Village - Maxi and the dead body of the deceased
was found near Ujjain. There are a lot of omissions and
contradictions in the statements of prosecution witnesses which have
been ignored by the learned trial Court. It is further submitted by the
learned counsel that in case of circumstantial evidence, the motive
plays an important role, but the prosecution failed to prove the
motive in this case.
06. Learned counsel further submitted that as per the postmortem
report, the deceased died due to strangulation but the police did not
recover any rope or any other material which was used for
strangulation. No fingerprints were taken from the beer bottle,
therefore, there is no connecting material in this matter to implicate
these appellants. At the time of the incident, these appellants were
aged about 22 & 19 years respectively, therefore, they could not have
committed this type of heinous offense without any motive. At last,
learned counsel for the appellants urged that even if the entire
prosecution story is believed as it is, one important fact is liable to be
noted that the deceased himself went along with these two appellants,
they consumed the liquor and there was quite possibility that some
dispute might have occurred between them and one of them assaulted
the deceased by means of a beer bottle, therefore, the offense will not
travel more than 304 Part - II of IPC, for which these appellants have
already undergone more than 10 years of a jail sentence. It is further
submitted by the learned counsel that the conviction under sections
397 and 364 I.P.C. is also not sustainable in the given facts and
circumstances. Hence, they be released by altering the sentence from
life imprisonment to the period already undergone by them. One
chance is liable to be given to them as they are not habitual criminals
and at the time of offence they were of tender age, hence, the
reformative approach should be adopted in this case.
07. Learned Deputy Advocate General for the respondents / State
opposed the appellants by submitting that there was a previous
enmity between the deceased and these two appellants, therefore, the
father of the deceased got himself transferred from Maxi to Ujjain,
These appellants came to Ujjain, took the deceased with him,
thereafter, looted, assaulted him and murdered by strangulation from
bare hand. Therefore, there is the motive and last-seen evidence
against them and they have rightly been convicted. They came all
along from Maxi to Ujjain and took the deceased to the forest area,
therefore, they had the intention to kill him. Hence, the conviction is
not liable to be converted into Section 304 Part - I or II of the IPC,
and the criminal appeals be dismissed. A young son of the parents
lost his life at the age of 20 years, hence, no leniency is liable to be
seen towards these appellants
08. We have heard learned counsel for the parties at length and
perused the record.
09. In order to prove the charges against the accused by way of
circumstantial evidence, the prosecution examined several witnesses
to complete the chain of events. According to Arvind Sen (PW-11),
shop owner of Narmada Pan Bhandar, two persons came to his shop
and were making inquiries about the deceased Manish, as per their
description, he informed that Manish resides in Railway Colony and
gave his address. Thereafter, they went towards the colony. After
some time, they came back to the shop and after one hour, they met
Manish. Thereafter, all three went towards Sindhi Colony Road and
at that time it was 7:00 - 8:00 pm. On the second day, he came to
know from the father of Manish that they were Jitendra & Amjad.
10. Thereafter, the prosecution examined Animesh Tiwari (PW-3)
a student aged about 20 years. According to him on 16 th September,
he went to meet his friend Manish Rawal i.e. deceased, thereafter,
both of them went to the house of Bharat Pushkar at Ashok Nagar.
After staying there for half an hour while returning home, they met
with the accused persons. They shook their hands and offered tea to
him but he went to his house. When Manish did not return home, her
mother telephoned him in the morning of the next day, then he
informed her that Manish had gone along with Jitendra & Amjad.
Therefore, he went along with the father of Manish to Police Station
- Nilganga and lodged a missing person report. PW-3 duly identified
these two appellants in the Court, hence, there is no reason to doubt
his testimony. The presence of P.W.-3 is also mentioned in the
missing person report recorded in the police station, which makes
him more credible. At the very first instance, he informed the father
of the deceased as well as the police that the deceased went along
with these two appellants.
11. In the case of Sunny Kapoor v/s State (UT of Chandigarh)
reported in (2006) 10 SCC 182, the Apex court explained how the
conviction under section 302 can be based on last-seen evidence:-
"21.The appellants have been convicted on the basis of
circumstantial evidence. It is now well settled by a catena of
decisions of this Court that for proving the guilt of
commission of an offence under Section 302 IPC, the
prosecution must lead evidence to connect all links in a chain
to point the guilt of the accused alone and nobody else.
Recently in Ramreddy Rajesh Khanna Reddy v. State of A.P.
[(2006) 10 SCC 172 : (2006) 3 Scale 452] this Court has held
as under: (SCC p. 181, paras 26-27)
"26. It is now well settled that with a view to base a
conviction on circumstantial evidence, the prosecution
must establish all the pieces of incriminating
circumstances by reliable and clinching evidence and the
circumstances so proved must form such a chain of
events as would permit no conclusion other than one of
guilt of the accused. The circumstances cannot be on any
other hypothesis. It is also well settled that suspicion,
however grave it may be, cannot be a substitute for a
proof and the courts shall take utmost precaution in
finding an accused guilty only on the basis of the
circumstantial evidence.
27. The last-seen theory, furthermore, comes into
play where the time gap between the point of time when
the accused and the deceased were last seen alive and the
deceased is found dead is so small that possibility of any
person other than the accused being the author of the
crime becomes impossible. Even in such a case the
courts should look for some corroboration."
12. From the evidence of Arvind Sen (PW-11) and Animesh
Tiwari (PW-3), the prosecution has successfully proved that the
deceased was last seen with these appellants and thereafter, his dead
body was found in the jungle.
13. In order to prove the previous connection between the
deceased and the appellants the prosecution examined Nirmal Rawat
(PW-5) who is the father of the deceased. He has confirmed that on
16.09.2009, Animesh came to his house, thereafter, Animesh and his
son went to the house of Bharat. Thereafter, Manish did not return at
that night, he waited till 9:30 - 10:00 pm, he contacted Manish on the
telephone and he said that he would return to the house by 9:30 -
9:45 pm. After 10:30 when the deceased did not return, he again tried
to contact him but the mobile was found switched off. He searched
till 1:00 am the night, in morning they searched the number of
Animesh and informed him. When Animesh disclosed the names of
these two appellants, he recalled that when he was posted at Maxi,
they had enmity with his son. Thereafter, he immediately went to the
police station and lodged a missing person report (Ex-P/3).
Thereafter, at 3:30 pm, Police Station - Nilganga received an
information about a dead body lying near Badnagar Road. He was
called, to identify the dead body of his son Manish. The deceased had
injuries on his head and signs of strangulation on his neck. In
paragraph - 13, he disclosed that he was in the Railway Department.
Fathers of Jitendra & Amjad were also in the Railway Department.
Manish was a cricket player but Jitendra and his father used to
prevent Manish from playing cricket and they fought as well, for
which he made a report to the police station. According to him,
because of this day-to-day nuisance, he got himself transferred to
Ujjain in the year 2008. It is found established that due to this
previous enmity, the appellants came to Ujjain searched the deceased
and thereafter murdered him. Therefore, the motive has also been
found established based on the statement of the father of the
deceased. However, in cross-examination, he admitted there was no
dispute between his son and Amjad and he did not lodge any report to
the police against him. After his transfer, his son never met Amjad.
He also admitted that when he last time talked to his son between
9:30 and 9:45 pm, he did not disclose that he was with the appellants
and even he did not ask.
14. The appellants have also not come with a plea of alibi. They
are the residents of Maxi and they could have taken a plea that at the
time of the incident, they were not in Ujjain, but no such defence has
been taken by them which goes adversely against them. For the rest
of the findings i.e. date of incident, cause of death and recoveries of
belongings of the deceased, the appellants are not assailing these
findings in these appeals.
15. As per the postmortem report, lacerated wounds, multiple
contusions, bleeding from the mouth and nose, and ligature marks
around the neck were found. The cause of death is auspicious due to
strangulation we accordingly upheld the same.
16. In view of the discussion, now we shall examine the
conviction of the appellants under section 364 of I.P.C. According to
the deposition of Arvind Sen (PW-11) and Animesh Tiwari (PW-3),
the deceased himself went along with these appellants and now a
suggestion was given to them that the appellants kidnapped the
deceased. The animosity was very old between them and that too
between the deceased and Jitendra not with Amjad, therefore, the
conviction under Section 364 is unsustainable.
17. In the case of The State of W.B. V/s Mir Mohammad Omar
reported in (2000) 8 SCC 382, the Supreme Court of India held as
under:- (Section 364 of the IPC)
13. Section 364 IPC says, whoever abducts any person "so
that such person may be murdered or may be so disposed of
as to be put in danger of being murdered" commits the
offence punishable under the section. So the important task
of the prosecution was to demonstrate that abduction of
Mahesh was for murdering him. Even if the murder did not
take place, the offence would be complete if the abduction
was completed with the said objective. Conversely, if there
was no such objective when the abduction was perpetrated,
but later the abductors murdered the victim, Section 364 IPC
would not be attracted, though in such a case the court may
have to consider whether the offence of culpable homicide
(amounting to or not amounting to murder) was committed.
The ingredient of kidnapping is missing in the evidence,
hence, these appellants are liable to be acquitted for this offence.
18. So far as the conviction of the appellants under Section 397
of the IPC is concerned, it is clear from the statement of prosecution
witnesses that the appellants did not kidnap and murder the deceased
for the purpose of robbery or dacoity. They did not come from Maxi
to Ujjain for the purpose of kidnap and robbery. They were not
carrying any weapons with them. The appellants have been acquitted
under Section 364 as no abduction with intention to murder was
found hence, the appellants are liable to be acquitted of the offense
under Section 397 IPC also.
19. Learned counsel for the appellants argued that even if the
entire prosecution story is believed and findings are upheld, the
offence will not travel more than 304 Part - II of the IPC because the
appellants did not use any lethal weapon to murder the deceased. The
appellants and the deceased were sitting and consuming liquor as
friends as beer bottle was found on the spot. It appears that all of a
sudden, a dispute occurred between them, they blew the bottle on the
head and thereafter, the appellants strangulated the deceased, due to
which the he died. Hence, looking at their age and as they have no
criminal record, it cannot be gathered that they went there with the
intention to commit murder of the deceased. Hence, at the most, they
are liable to be convicted under Section 304 Part - II of the IPC.
20. It is correct that the deceased himself went along with the
present appellants, hence, they did not kidnap him with an intention
to commit murder. The deceased was there with them for quite some
time and when his father telephoned him, he did not complain that he
was unsafe with them. As per the statement of Animesh Tiwari (PW-
3), the deceased went along with these appellants after 6:30 pm and
as per the statement of Arvind Sen (PW-11), the second time when
these appellants came to his shop, it was 7:30 pm. The father had the
last call with the deceased between 9:30 - 9:40 pm. In between they
consumed the beer, thereafter, something happened that led to the
unfortunate incident. It is correct that before strangulation, the
deceased was assaulted by the beer bottle as broken beer bottle was
found on the spot and thereafter, these appellants strangulated him till
death. Therefore, they developed the intention to kill him by
strangulation on the spot itself.
21. In a decision in the case of Munna Chanda v/s State of
Assam reported in (2006) 3 SCC 752, the Supreme Court of India
observed as:-
"10. The concept of common object, it is well known, is
different from common intention. It is true that so far as
common object is concerned no prior concert is required.
Common objects can be formed on the spur of the moment.
Course of conduct adopted by the members of the assembly,
however, is a relevant factor. At what point of time the
common object of the unlawful assembly was formed would
depend upon the facts and circumstances of each case.
It is not a case that they gave a single blow on the head
without the intention to kill and thereafter, death took place. In case
of death by strangulation, the accused continues to apply pressure till
the deceased takes a last breath. There was throttling of the neck of
Manish by appellants till he died. Hence, it was murder, not culpable
homicide. Therefore, the appellants have rightly been convicted
under Section 302 of the IPC ..
22. In view of the above, the conviction of the appellants under
Sections 364/34 & 397/34 of the IPC is hereby set aside. So far as
conviction under Sections 201/34 & 302/34 of the IPC is concerned,
the same is hereby upheld.
23. With the aforesaid, Criminal Appeal stands allowed in part.
Let a copy of this judgment be kept in the connected criminal
appeal also.
(VIVEK RUSIA) (PRANAY VERMA)
JUDGE JUDGE
Ravi
