Madhya Pradesh High Court
Imran @ Sallu vs The State Of Madhya Pradesh on 30 May, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 30 th OF MAY, 2024
CRIMINAL APPEAL No. 352 of 2014
BETWEEN:-
IMRAN @ SALLU S/O SATTAR KHAN, AGED ABOUT 32
YEARS, OCCUPATION: LABOURER LALITPUR COLONY,
LASHKAR (MADHYA PRADESH)
.....APPELLANT
(SHRI AKASH RATHI- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THRU. P.S. BADNAWAR (MADHYA PRADESH)
.....RESPONDENT
(SHRI SUDHANSHU VYAS- PANEL LAWYER)
T h is appeal coming on for orders this day, Justice Vijay Kumar
Shukla passed the following:
ORDER
The present appeal is filed under section 374(2) of Cr.P.C being
aggrieved by the order dated 28.02.2014 passed by 2nd Additional District
Judge, Dhar in Session Trial No.382/2012, whereby, he has been convicted
under section 302, 201 of IPC and sentenced to undergo for life imprisonment
and 7 years RI with Rs.3000 and Rs.1000 with default stipulation.
2. The prosecution case is that on 02.08.2012 in the afternoon at about
02:30 PM one person had visited Narmada Lodge, Badnawar and disclosed his
name Bhupendra S/o Vallabh Das Veragi R/o Bhopal. He was accompanying
with a man aged about 45 years. The owner of the lodge Gopal Rathore PW/3
asked him for identity card. He said that he will bring the identity card later. In
the night about 09:00 PM, Gopal Rathore went to the room no.114 of the lodge
and found the said person. He immediately informed the Police Station
Badnawar at about 11:15 PM. On the basis of said intimation, a Merg was
registered bearing no.54/2012 under section 174 of Cr.P.C vide Exb.P/9. The
said Merg was registered by PW/7 Head Constable Madan Mohan Tiwari. After
registration of Merg, the investigation was carried out by Assistant Sub-
Inspector Manohar Barodiya PW/8. He went to the scene of crime and made
Naksha Panchnama Exb.P/8 Safina Form Exb.P/7 was prepared by Mahesh
Kumar Dubey PW/12. From the spot, in the presence of Gopal PW/3, black
colour bag, newspaper, underwear, one saree, one mobile charger, one specs,
one tiffin, tobacco, watch, rings were seized vide Exb.P/3. Register of lodge
Exb.P/5 was seized and its Panchnama Exb.P/4 was prepared. The deadbody
was sent for post mortem vide Exb.P/10 application for CHC Badnawar. The
post mortem was conducted by Dr.O.P. Rohit PW/13 and his post mortem
report is Exb.P/10. He opined that the cause of death may be by respiratory and
cardiac arrest due to throttling within 24 hours. The FIR was lodged vide
Exb.P/11 by Inspector Mohan Singh Jat PW/9. During the investigation cyber
cell, Dhar found location of mobile no.74893333595 and call details by Prashant
Gunjal PW/11. He had given the call details vide Exb.P/12. Thereafter, the
investigation was carried out by inspector Mahesh Kumar Dubey PW/12.
During the investigation the statement of Gopal, Wahid and father of the
deceased Ramashankar Soni were recorded and identification of dead body
was conducted on 05.08.2012 vide Exb.P/12. On the same date, the accused
had produced a black colour mobile of Samsung company i.e. Article A and a
sim was having no.74893333595, which was seized vide Exb.P/14. The
appellant was arrested vide Exb.P/15. He was identified by Gopal PW/3 and
Wahid PW/2. After the investigation, the police filed charge sheet for
commission of offence under section 302 and 201 of IPC.
3. It is relevant to mention that the father of the deceased Ramashankar
Soni PW/4 had also lodged missing report Exb.P/13 on 04.08.2012 at police
station Jhansi Road, which was registered by Dinesh Singh PW/10. The case
was committed for trial to the Sessions Court. The appellant abjured his guilt
and pleaded for trial.
4. Learned counsel for the appellant submits that the prosecution case is
based on circumstantial evidence and on the testimony of last seen witness
Gopal PW/3. He submits that the prosecution has failed to establish the
complete chain of circumstances beyond doubt, therefore, the conviction of the
appellant is bad in law. The testimony of Gopal PW/3 last seen witness solely
can not be the basis for conviction.
5. Gopal PW/3 who is owner of the lodge, deposed that on 02.08.2012,
in the afternoon, the appellant had come in the auto of Wahid alongwith persons
aged about 45 years. He came to him and asked for room on rent for 1-2 hours
as the person along with him was in drunk condition and was felling
uncomfortable. Considering the same, he had given room no.114. When he
asked for identity card, the appellant stated that when his brother (person who
was accompanying him) will become conscious, he will bring identity card. The
said person had disclosed his name as Bhupendra S/o Vallabh Das Veragi R/o
Bhopal, which was recorded in the register maintained in the lodge. He stated
that after 1-2 hours, the appellant came from the said room and when he asked
for identity card, he said he will come back after half and hour alongwith I.D.
Thereafter, Gopal PW/3 became busy in celebration of Rakhi festival. In the
night at about 9:00 PM, he went to the room no.114 and found that the person
who had come alongwith the appellant was dead. He tried to make him
conscious by sprinkling water on him but by that time he died. He informed to
the police and the police came at the spot Exb.P/2 map was prepared before
him and the said memo bears his signature from A-A. He further deposed that a
black colour bag, newspaper, underwear, one saree, one mobile charger, one
specs, one tiffin, tobacco, watch, rings were seized vide Exb.P/3 and the same
bears his signatures from A-A. The lodge register was seized and a copy of the
relevant page of the register is Exb.P/5, which bears his signature from A-A. He
also produced original of the register before the Court and after matching the
same, the court has returned the same. He further deposed that the identification
was conducted in sub-jail, Badnawar by Tehsildar vide Exb.P/6 which bears is
signature from A-A.
6. Thus Gopal PW/3 identified the appellant as the same person who
had come to the lodge alongwith deceased and went to the room and remained
with him for 1-2 hours and thereafter came from the same room and went
outside to bring identity card but he did not return.
7. Learned counsel for the appellant submits that the testimony of Gopal
PW/3 who is last seen witness is not trustworthy. The identification suffers
from illegalities and bad in law. It is argued that in para no.10 of his statement,
he stated that before identification, photographs of the appellant was shown to
him. The identification was conducted after 16 days of the incident. The
statement of Gopal PW/3 has to be read with statement of PW/4. The father of
the deceased was examined as PW/4. In his statement, he stated that he knows
the appellant. On 01.08.2012, the deceased went alongwith him on motorcycle
when the deceased did not come back for two days, the appellant and his father
came to his house on 04.08.2012 and thereafter, a missing person report was
lodged.
8. It is argued that the testimony of Ramashankar Soni PW/4 cannot be
believed because if the deceased had gone alongwith the appellant,
Ramashankar Soni PW/4 ought have asked him first about the whereabouts of
the deceased but he has not stated that he had asked the whereabouts of the
deceased. He further submits that if he would have murdered the deceased, he
would not have gone to the father of the deceased to lodge a missing person
report.
9. It is further argued that the prosecution has failed to examine any
seizure witness. Apart from that, in the lodge register Exb.P/5, the prosecution
has not proved the signature of the appellant. They have not examined any hand
writing expert. So far the call details and mobile location is concerned, it is
submitted that Exb.P/12, cannot be relied because the prosecution has failed to
prove that the same seized mobile and sim belongs to him. He further submits
that the same was in the name of other person. It is urged that the prosecution
has not proved the motive for commission of the offence. In absence of
motive, there cannot be connection. The testimony of Dr.O.P. Rohit PW/13
cannot be believed who had conducted the post mortem report because there is
no finger print expert has been examined by the prosecution.
10. On the basis of aforesaid submission, it is argued that the
prosecution has utterly failed to establish the chain of circumstance. Apart from
that, one of the witness Wahid PW/2, has turned hostile. The testimony of
Gopal PW/2 who is said to be last seen witness, owner of the lodge, is not
trustworthy therefore, the conviction cannot be based on the basis of testimony
of last seen witness. The identification parade is vitiated because in the cross-
examination in para no.10, he has stated that photographs of the appellant was
shown to him. In support of his submission, he has placed reliance on the
judgment passed by the Apex court in the case of Kamal Vs. State (NCT of
Delhi) reported in 2023 AIR (Supreme Court) 3841. He referred para no.12 of
the judgment.
11. Learned counsel for the respondent/state supports the impugned
order and submitted that the prosecution has successfully proved its case
beyond doubt. Apart from the circumstantial evidence, there is last seen witness
Gopal PW/3 which get corroborated with testimony of Ramashankar PW/4
father of the deceased. If the statement of Gopal PW/3 is read alongwith the
post mortem report and the testimony of Dr.O.P. Rohit PW/13, it is established
that the death was caused within 24 hours when the deceased was in the room
alongwith the appellant in the lodge.
11. Heard learned counsel for the parties and perused the record.
12. The question raises whether the prosecution has successfully proved
the chain of circumstantial evidence to prove its case beyond doubt.
13. In the case of Shard Birdhichand Sharda Vs. State of
Maharashtra, 1984 SCC (4) 116, the Apex Court has held as under :
153. A close analysis of this decision would show that the
following conditions must be fulfilled before a case
against an accused can be said to be fully established:
(1) the circumstances from which the conclusion of
guilt is to be drawn should be fully established.
It may be noted here that this Court indicated that
the circumstances concerned "must or should" and
not "may be" established. There is not only a
grammatical but a legal distinction between "may
be proved" and "must be or should be proved" as
was held by this Court in Shivaji Sahabrao
Bobade v. State of Maharashtra [(1973) 2 SCC 793 :
1973 SCC (Cri) 1033 : 1973 Crl LJ 1783] where the
observations were made: [SCC para 19, p. 807: SCC
(Cri) p. 1047]
"Certainly, it is a primary principle that the
accused must be and not merely may be guilty
before a court can convict and the mental distance
between 'may be' and 'must be' is long and divides
vague conjectures from sure conclusions."
(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 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. In the light of the aforesaid judgments, facts and evidences of the
present case are extensively examined. The testimony of Ramashankar Soni
PW/4 father of the deceased had deposed that on 01.08.2012, the deceased
went alongwith appellant had he did not come back. On 04.08.2012, the
appellant alongwith his father went to his house and thereafter, a missing person
report was lodged. The dead body of his son was identified by him. There is no
merit in the contention of the appellant that the testimony of Ramashankar Soni
PW/4 cannot be believed because if the appellant had gone alongwith the
deceased, then Ramashankar Soni PW/4 ought have first inquired about the
deceased from him but he has not stated the same in his deposition. There is no
suggestion in this regard in the testimony of Ramashankar Soni PW/4 by the
appellant that he had not gone alongwith the deceased. Gopal PW/3 who is
owner of the lodge has stated that one person had come alongwith another
person to his lodge on the auto of Wahid. He asked for room for one hour as
the accompanied person was in drunken condition and was not feeling well. He
deposed that the appellant remained with the deceased for 1-2 hours in the
room and thereafter came out and when he asked for identity card, he stated
that he will come in half an hour. Later, he had identified the appellant vide
Exb.P/6. The identification was conducted by Tehsildar. Merely because in
para no.10 he has stated that photograph of the appellant was shown to him his
testimony cannot be disbelieved. One line of para no.10 cannot be read in
isolation in the entire testimony of Gopal PW/3 has to be read. In para no.10
itself he stated that he has not seen the appellant in the police station.
15. The identification parade was conducted by Tehsildar and in his
testimony there is nothing in cross-examination to disbelive his testimony. The
prosecution has proved the identification parade. Apart from that, the call
details and mobile location seized vide Exb.P/12 has been proved by Mahesh
Dubey PW/12. The Exb.P/12 clearly indicates mobile location of the appellant
at the place of incident. The non-examination of seizure witnesses and absence
of hand writing expert report would not be sufficient to dislodge the entire
prosecution case. The prosecution witnesses PW/7, PW/8, PW/9 and PW/12
have proved the various seizure memo, registration of Merg, FIR, Identification
etc. The testimony of Gopal PW/3 and Ramashankar PW/4 clearly establishes
that the deceased had gone alongwith appellant from his house and then he was
taken to the lodge and the appellant stayed for 1-2 hours in a room at lodge and
then came out. As per the post mortem report and the testimony of Dr.O.P
Rohit PW/13, the cause of death is due to throttling. The duration of death is
within 24 hours. The duration mentioned by Doctor clearly establishes the
period is covered when the appellant has been established to be in the room in
lodge with deceased. The prosecution case is based on last seen witness and
not only on circumstantial evidence and therefore, the absence of motive would
not be an essential ingredient.
16. In regard to admissibility of evidence of last seen witness. In the
case of Kanhaiya Lal Vs. State of Rajasthan reported in (2014) 4 SCC 715,
the Apex Court held in para no.12 that the circumstance of last seen together
does not by itself and necessarily lead to the inference that it was the accused
who committed the crime. There must be something more establishing
connectivity between the accused and the crime. Mere non-explanation on the
part of the appellant, in our considered opinion, by itself cannot lead to proof
of guilt against the appellant.
17. Apart from last seen evidence, the prosecution has also established
the fact that the appellant had gone alongwith the deceased and stayed in the
room in lodged and came out after 1-2 hours and the medical evidence clearly
proved that the death of the deceased was during the said period. Apart from
that, as per the call details and mobile location, the appellant was present on the
place of incident.
18. After taking into consideration all the grounds mentioned above and
looking to the fact that the chain of circumstances is complete against the
accused and the accused was unable to rebut the evidence adduced against him.
So this Court is of the considered opinion that the appellant and only the
appellant is guilty. So on the basis of the foregoing discussion it is clear that the
learned trial court has properly assessed the evidence available on record and
has rightly convicted and sentenced the appellant under the aforesaid sections
of the Indian Penal Code. The learned trial court has not committed any error
by convicting the appellant for the aforesaid offences. Hence, the conviction
and sentence deserve to be maintained. Resultantly, the appeal filed by the
appellant is dismissed and; conviction and sentence passed by the trial court is
hereby upheld.
19. Copy of this judgment along with the record of the trial court be sent
to the trial court for information and necessary action. The appellant is serving
jail sentence, he be intimated about the outcome of this appeal through
Superintendent of Jail and a copy of the judgment be also supplied to him
through Superintendent of Jail.
(VIJAY KUMAR SHUKLA) (HIRDESH)
JUDGE JUDGE
Sourabh
