Madhya Pradesh High Court
Golu @ Ganesh vs The State Of Madhya Pradesh on 9 April, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal
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1 CRA-2199-2013
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 9 th OF APRIL, 2025
CRIMINAL APPEAL No. 2199 of 2013
RIYAZ
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. M.M.Jaiswal - Advocate for appellant.
Mr. Abhishek Singh - Government Advocate for State.
WITH
CRIMINAL APPEAL No. 2307 of 2013
GOLU @ GANESH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Lavkush Prajapati - Advocate for appellant.
Mr. Abhishek Singh - Government Advocate for State.
CRIMINAL APPEAL No. 8738 of 2023
VISHI YADAV
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Mr. Jaydeep Kaurav - Advocate for appellant.
Mr. Abhishek Singh - Government Advocate for State.
Signature Not Verified
Signed by: JULIE SINGH
Signing time: 17-04-2025
17:57:36
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JUDGMENT
Per: Justice Devnarayan Mishra
With the consent of the parties, the matters are heard finally at motion
hearing stage.
1. The appellant Riyaz (appellant of appeal no.2199 of 2013), Golu @
Ganesh and Shababu (appellants of appeal no.2307 of 2013), being
aggrieved with the judgment dated 03.07.2013 passed in S.T. No.238 of
2010 by which the appellants have been convicted for the offence punishable
under Sections 396, 302/34 and sentenced to undergo respectively R.I. for
Life Imprisonments for each offence and fine amount of Rs.500/-
respectively for each with default stipulations and the appellants Shababu has
also been convicted for the offence punishable under Section 25(1-B)(B) of
the Arms Act and sentenced to undergo R.I. for two years with fine amount
of Rs.200/- with default stipulations.
2. Vishi @ Moni Yadav (appellant of appeal no.8738 of 2023)
preferred this appeal being aggrieved with the judgment dated 19.05.2023
passed in the same S.T. No.238 of 2010 as this appellant was absconding
during the trial and hence, the judgment was passed separately and the
appellant has been convicted for the offence punishable under Sections
302/34, 394 of the Indian Penal Code and sentenced to undergo R.I. for each
offence and fine amount of Rs.1,000/- for each offence with default
stipulations.
3. The incident and the sessions trial being same and the judgments are
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based on the same evidence, hence all the three appeals are being decided
analogously.
4. The prosecution case before the trial Court was that on 20.02.2010 at
10:05 am, Dhondu Pawar (PW-4) and Kotwar Pusulal Shonde (PW-3) along
with Namdeo Pawar informed Police Station-Umreth that in the morning on
20.02.2010 when Dhondhu visited his field, he found a dead body of
unknown person, aged about-30 years and the body was having injuries in
stomach, chest, on that Police Station-Umreth registered marg no.4/10 under
Section 174 of the Code of Criminal Procedure (Exhibit-P/11) and Police
Officer visited the spot. After enquest information, the dead-body was sent
for post-mortem examination. On the same day, at about 17:30 hours
Chandrabhal (PW-8) registered a missing person report in Police Reporting
Chowki Badkuhi, Police Station-Chandameta with regard that deceased
Mahant Giri went to Junnardeo in his Bolero Car bearing registration number
UP-53-AT-1224 but did not return.
5. On that basis, missing person report vide number 06/2010 (Exhibit-
P/13) was registered. The dead body was identified by Chandrabhal Giri
(PW-8) of his son. On marg enquiry, it was found that deceased Mahant Giri,
s/o Chandrabhal Giri went to appellant Vishi Yadav along with his Bolero
Jeep bearing registration number UP-53-AT-1224. The Bolero was also
recovered in an abandoned condition by S.D. Sanodiya (PW-16) near Shiv
Temple, Junnapani and prepared recovery memo (Exhibit-P/19) under
Sections 100, 102 of the Code of Criminal Procedure. Crime No.14 of 2010
(Exhibit-P/44) was registered in Police Station-Umreth. The appellants were
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arrested and from their possession gold ring, silver bracelet, mobile, purse
and wrist watch were recovered and it was found that the appellants have
committed dacoity along with one absconding co-accused Sajju, s/o Iddu
Musalman, R/o Village Jhiriya Mohalla Ambada, Police Station-Junnardeo.
6. The articles were recovered from the possession of the appellants.
The clothes of the deceased and in the Bolero, blood stains were found and
the clothes of the appellants that were seized during investigation were sent
for FSL Examination. As per the FSL report (Exhibit-P/42 and P/43), the
injuries caused in the body of the deceased were caused by the same knife
recovered from the possession of the accused persons and DNA of the
deceased was found in clothes of the appellants and in the blood stain found
in the vehicle and articles i.e. bracelet, wrist watch, ring recovered from the
appellants. After due investigation, the charge-sheet was filed before the
Judicial Magistrate First Class Parasiya and commitment and transfer, the
case was submitted for trial before the trial Court.
7. The trial Court framed the charges under Sections 396, 302 of the
Indian Penal Code against the appellants and additional charge under Section
25(1-B)(B) of the Arms Act was framed against appellant Shababu. The
appellants abjured the guilt and submitted that they have been falsely
implicated in the case.
8. The trial Court recorded the prosecution evidence and examined the
appellants under Section 313 of the Code of Criminal Procedure. Vishi was
absconded during trial, hence, judgment was passed against appellants Riyaz,
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Gollu @ Ganesh, Shababu on 03.07.2013. When appellant Vishi @ Moni
Yadav was arrested, after further examination of the Investigating Officer
and hearing the appellant, separate judgment was passed on 19.05.2023 and
convicted and sentenced as above, hence this appeal.
9. Learned counsel appearing on behalf of appellant Riyaz has
submitted that the appellant has falsely been implicated in this case. The
whole case is based on the chance witnesses and that the stolen property was
recovered from the possession of this appellant. There is no other evidence,
no identification parade was conducted by the Investigating Officer and in
such type of grievous cases, only on the basis that the incriminating articles
were recovered from his possession, the appellant cannot be convicted and
submitted that the trial Court has not appreciated the evidence and
circumstances and no other circumstance has been brought against this
appellant, hence the conviction cannot be maintained and the appeal be
allowed.
10. Learned counsel appearing on behalf of Golu and Shababu has also
submitted that there is no evidence on which basis the appellants can be
convicted. All the articles that have been sent for FSL Examination were
recovered from the body of the deceased and Police Officer has not
investigated the fact whether the clothes that were recovered from the
appellants were fit to the body of the appellants or not and by putting the
clothes of some other person, the positive DNA report is obtained, the
appellants has been convicted that cannot be maintained.
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11. Learned counsel appearing on behalf of appellant Vishi has
submitted that the whole case of the prosecution is based on chance witness.
The brother of the deceased Krishnamohan Giri (PW-11) has submitted that
he saw the appellant Vishi Yadav with the deceased as he visited his house
i.e. against the case diary statement of this witness (D/4).
12. In the same way, Nishant Soni (PW-7) is another chance witness,
who has stated that he saw the appellant when he was sitting on driver seat of
the car, that was driven in speed. It is highly impossible that any person who
is sitting in that side can be identified by a person in a car which is in speed.
This witness is a chance witnesses, hence, on that basis, the appellant cannot
be convicted and further submitted that recovery is not supported by the
independent witnesses. Identification of the articles was made after two
months of the recovery and only on the basis of DNA report of the articles
whose recovery is doubtful, the appellant cannot be convicted, hence the
conviction by the trial Court be set aside and the appellant be acquitted.
13. Mr. Abhishek Singh, learned Government in his turn has
submitted that the dead body of the deceased was recovered in another day
of the incident and the deceased has sustained multiple injuries by sharp
edged weapons. The articles that the deceased was wearing such as bracelet,
wrist watch, gold ring, purse and the same have been recovered from the
possession of the appellants and that were having the DNA of the deceased.
In the same way, the vehicle, in which, the deceased went to appellant Vishi
Yadav also bears the DNA of the deceased and the brother of the deceased
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Krishnamohan Giri (PW-11) has clearly stated that his brother Mahant Giri
left the home saying that he is going to Vishi Yadav in Junnardeo. Thus the
statement of the deceased to his brother amounts dying declaration and by
the scientific evidence, it has been proved that the appellants have committed
the murder of the deceased and the judgments of the trial Court is based
upon the proper appreciation of evidence, thus, no interference is called for,
hence the appeal be dismissed.
14. We have heard the parties and perused the record.
15. Chandrabhal Giri (PW-8) has stated that he was having a Bolero
jeep bearing registration number UP-53-AT-1224 and the same fact has been
stated by Krishnamohan Giri (P.W-11). Chandrabhal Giri (PW-8) has stated
that his son Krishnamohan Giri (PW-11) was handicapped and was studying
in Chhindwara. The son of the deceased i.e. Mahant Giri was transporting his
brother to the school and sometimes, if any, person demands on special
occasion, the deceased was also plying the car on hire. Krishnamohan Giri
(PW-11) has further stated that on 19.02.2010, he was in house and his father
went to Ganpat Mines Parasiya on his duty and returned at about 07:00-
07:15 PM. On this point, the statement of Krishnamohan Giri (PW-11) and
of Chandrabhal Giri (PW-8) are same and supported by each other.
16. Witness Krishnamohan Giri (PW-11) has further stated that on
19.02.2010, the brother of the deceased Mahant Giri went to Vishi Yadav on
special hire that he has to go to Chhindwara, the deceased took the vehicle
on hire at 13:40 hours. His brother departed from house at 03:00-3:30 noon
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as Vishi Yadav called to the brother of the deceased on phone and his
brother informed him that Vishi Yadav called him and he was going to
Junnardeo to visit Vishi Yadav and his brother departed, then his brother
went with the Jeep and he was having mobile.
17. The witness Krishnamohan (PW-11) and witness Chandrabhal Giri
(PW-8) have stated that when Chandrabhal (PW-8) returned from the duty,
he enquired about the deceased Mahant Giri, on that, Krishnamohan (PW-
11) told him that he had gone along with Vishi Yadav as he had to go to
Chhindwara and when he called first time, his brother told him that he was in
Chhindwara alongwith Vishi Yadav. But on his father's enquiry, he called
his brother but the phone was not connected.
18. On the next day, he sent Shiv Narayan Suryawanshi to enquire his
brother's hereabout from Vishi Yadav. Vishi Yadav told Shiv Narayan
Suryawnashi that he left the deceased Mahant Giri at 07:00 pm and he had no
knowledge about the hereabout of the deceased and on this point, no
contradiction is found from the case diary statement of these two witnesses.
19. Furthermore, as per Chandrabhal Giri (PW-8), who lodged the
missing person report (Exhibit-P/13) on the next day, in reporting Police
Chowki Chandmeta that was recorded on 20.02.2010 as a missing person
report vide number 06 of 2010 and in this, the time of the missing was
mentioned as 17:30 hours and in this also, this has been clearly mentioned
that the missing person along with his Bolero vehicle stated that he was
going to Junnardeo, left the home and did not return. Thus, it is clear that the
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deceased left his house stating that he went to Junnardeo along with a Bolero
vehicle and in this also, the mobile number of the deceased has been
mentioned as 9425832391 as also supported by Krishnamohan Giri (PW-11).
20. On the point of dead body and identification of the deceased,
witness Dhondhu Pawar (PW-4) has stated that he is the resident of Village-
Ridhoura, his fields are situated in both the sides of the road connecting
Sonapipri to Umreth near Village-Chhabri. On the date of incident, at about
07:00 hours to 08:00 hours, he went on his field and saw that a dead body of
a male was lying in the side of culvert (nali). He called Shivnandan Pawar
(PW-13). Deceased was having a black colour full pant, a t-shirt and a
sandow baniyan, he also saw there were multiple injuries from chest to
abdomen. He also saw the injury near private part and after that, he called the
Shivnandan (PW-13) and Shivnandan (PW-13) called Village Kotwar and
after that, they went to Police Station-Umreth.
21. This fact is further supported by Pusulal Shende (PW-3) and
Shivnandan Pawar (PW-13), who have also stated that the dead body was
lying near the culvert of the field of Dhondhu Pawar and the dead body was
having multiple injuries from chest to abdomen and marg intimation was
given by Dhondhu Pawar (PW-4) and also stated that report was lodged by
him.
22. R.P. Rawat (PW- 10) has stated that on 20.02.2010, he was posted
as ASI in Police Station-Umreth on 10:05 hours, Dhondhu, s/o Matru (PW-
4) visited the Police Station and orally informed that beside his field in
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Umreth Chhabri Road, a dead body of unknown person was lying and in the
dead body there were injuries, on that he registered marg intimation 04/10
(Exhibit-P/11) that bears his signature. After that, he visited the spot and
prepared enquest panchnama (Exhibit-P/8). The dead body was having
multiple injuries in chest, back, in thigh that were caused by sharp edged
weapon. The deceased was wearing a full pant, a t-shirt and prepared the
inquest panchnama after that he applied for post-mortem as per (Exhibit-
P/16) and sent Constable Dashrath issuing duty certificate (Exhibit-P/17)
along with the dead body to the hospital. This witness has further stated that
he prepared the spot map (Exhibit-P/18) and from the spot, he found a gents
sandal and prepared seizure memo (Exhibit-P/10) and from the spot, he also
recovered two electricity bills, blood stain and simple soil. This fact has been
clearly supported by Dhondhu Pawar (PW-4), Pusulal Shende (PW-3) and
Shivnarayan Pawar (PW-13) and these witnesses have also clearly stated that
the Police Officer visited the spot, lash panchayatnama was prepared and
dead body was sent for post-mortem examination.
23. Dhondu Pawar (PW-4) clearly denied the suggestion that except
the sandal and electricity bill any other thing was recovered from the dead
body and Shivnandan Pawar (P.W-13) has clearly denied the suggestion that
a wrist watch, a bracelet were found near the dead-body and the deceased
was wearing any wrist watch, bracelet or ring and clear suggestion has been
given to R.P. Rawat (PW-10) that in the dead-body of the deceased, ring,
bracelet, wrist watch or purse was found and also denied the suggestion that
he had taken all these articles from the dead body and put into his custody.
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Thus, it is clear that the dead body of unknown person was recovered near
the road in village Ridhoura and it was lying in a culvert (nali).
24. Chandrabhal Giri (PW-8) has stated that after lodging of the
missing person report on 21.02.2010, he got the information that the Police
Officer called him and on that he visited the mortuary and he found that the
dead body was of his son Mahant Giri. The dead body was having multiple
injuries and Police prepared the identification panchnama (Exhibit-P/14).
This fact has been also supported by R.P. Rawat (PW-10) and has stated that
on 21.02.2010, in the mortuary of Umreth Hospital, the dead body was
identified by Chandrabhal Giri (PW-8) in presence of Umar Singh and
Shivnarayan as his son. Thus, the dead body was of deceased Mahant Giri.
25. On the point of the cause of death, Dr. Ashutosh Suryawanshi
(PW-17) has stated that on 20.02.2010, he was posted as Medical Officer in
Primary Health Centre Umreth and a dead body of a young person, aged
about 25-30 years was brought along with the post-mortem application
(Exhibit-P/16), he started the post-mortem at 04:15 hours, the deceased was
wearing a black colour full pant and mini underwear, a grey-white coloured
half sleeve t-shirt. The clothes were blood soaked, white baniyan was blood
soaked, the t-shirt was wrapped in left shoulder, he found seven stab injuries
in the right side of the chest measuring respectively 5x2 cm, 3x2 cm, 2x3
cm, 3x1 cm, 2x1 cm, 2x1 cm and 1x1 cm along with that the second, third
and fifth ribs were fractured, injuries were deep to the cavity of chest. He
found left side three stab injuries measuring respectively 5x2 cm, 2x1 cm,
1x1 cm and the left side, third, fourth and fifth ribs were broken that was in
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the line of midclavicular.
26. In the mid side of the abdomen, a stab injury measuring 4x2 cm
was found and third, fourth ribs were broken, in clavicular line on abdomen
4x2 cm in the upper navel and three other stab wounds measuring 5x4 cm,
4x4 cm and 1x1 cm were found. Intestine came out along with these injuries,
other four injuries measuring 1x1x2 cm were found.
27. Three stab wound were found in the lumber region measuring 5x1,
3x1 cm and 2x1 cm cavity deep. Another stab wound just below starting of
private part measuring 1x1x2 cm. Two stab wounds in the right thigh
measuring 1x1 cm, 1/2x1 cm, 1/2 x1/2 cm were found. Two stab injuries
were found in the lumber region measuring 2x1x3 cm, 1x1x1 cm, these
injuries were caused just below the injuries on the right side of the abdomen.
One stab injury in the left gluteal region measuring 1x1/2x1 cm.
28. On internal examination, it is found that right side, second, third
and fifth ribs were broken and in the left side, second, third, fourth, fifth and
sixth ribs were broken. In the right lung, three stab wounds measuring 3x1x2
cm, 2x1x1 cm, 2x1x1 cm and in the left lung two stab injuries measuring
2x1x2 cm, 2x1x1 cm were found. In the right chamber of the heart, 2x1x2
cm stab injury was found. In the same part, the left side in the lower part, a
stab wound measuring 2x1 cm was found. In the small intestine ruptured in
the ileocolic region due to stab wound measuring 3x1 cm that was through in
the large intestine right side was ruptured due to stab wound measuring 3x1
cm, right side of liver was fractured measuring 3x1 cm, the left lobe of the
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liver two stab injuries measuring 2x1x2 cm and 1x1x1 cm were found and
as per the opinion of the doctor, all the injuries were caused by hard, sharp
and pointed object and the deceased died due to hemorrhage that were caused
by stab injuries and he has proved the post-mortem report (Exhibit-P/35).
29. On 15.04.2010, he received a weapon in the sealed condition and
after inspecting that he found that the weapon was double edged and pointed
object and opined that from this knife, the injuries could be caused as
suffered by deceased and he has submitted the query report (Exhibit-P/37).
Thus, it is clear that the deceased was assaulted by hard and sharp pointed
weapon and the injury suffered to the deceased may be caused by the weapon
recovered from the appellant Shababu.
30. Regarding the vehicle, witness Jaydev Farkade (PW-12),
independent witness has stated that he is a resident of Chikhlikala and in
village Chikhlikala near Shiv Temple, a vehicle was parked that was perhaps
maroon colour. Police of Police Chowki Umranala came and seized that
vehicle in his presence and (Exhibit-P/19) was signed by him and this has
been further clarified in the cross-examination that he was not the owner of
the vehicle.
31. Witness S.D. Sanodiya (PW-16) has supported the statement of
this witness and stated that on 20.02.2010 he was posted at Mohkhed Police
Chowki Umranala as S.I and from the villagers he got the information that
near Junna Pani Shiv Temple, a Bolero Jeep of the silver colour is parked in
an abandoned condition. On that, he reached on that place and a bolero
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vehicle was parked there, vehicle was bearing registration number UP-53-
AT-1224. He seized the vehicle and brought it to the Police Station and
prepared (Exhibit-P/19). Thus, it is also clear that the vehicle of the deceased
was recovered from Junnapani near Shiv Temple, in an abandoned condition.
32. Witness Madhur Pateriya (PW-14) on 24.02.2010 at 14:30,
recovered the vehicle bolero car UP-53-AT-1224 from Police Chowki
Umranala that was recovered by Police Station Mohkhed under Section 102
of the Cr.P.C. and prepared seizure memo (exhibit-P/28). Thus, the vehicle
on which, the deceased departed from his home was recovered at Junnapani
near Shiv Temple and Investigating Officer on 24.02.2010 seized the vehicle
in this case.
33. Tribhuwan Singh (PW-2) has stated that on 18.03.2010, he
recovered the fingerprint and swab of the blood stain that were found in the
gates of vehicle UP-53-AT-1224 that was brought by Constable Kamal.
34. Now, the role of the appellants in the offence whether they were
involved or not? There are three type of the evidence that is against Vishi
Yadav. Statement of witness Krishnamohan Giri (PW-8), who has stated that
his brother told him that he got the telephonic call of appellant Vishi Yadav
and on hire, he has demanded the vehicle and he was going to Junnardeo for
that purpose and left the home. Thus, the statement of the deceased that he
went on his bolero jeep to appellant Vishi Yadav for the purpose of hire and
he had to go to Chhindwara and left the home and after that he called again
his brother after sometime, where he had stated that he was along with Vishi
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Yadav at Chhindwara and he would return after sometime comes in purview
of dying declaration relevant under Section 32 of the Evidence Act.
35. Another witness Nishant Soni (PW-7) has stated that he was well
acquainted with appellant Vishi Yadav and he along with his friends Ram
Kumar Shukla, Ajju and Shani at about 06:00-06:30 hours on 19.02.2010
were standing in Bhola Tea Stall, he saw that a silver coloured Bolero jeep
was going in a high speed towards Chhindwara. Appellant Vishi Yadav was
sitting in the side of the driver. Two other persons were sitting in the rear
seat. He called Vishi Yadav why he was going so fast, what happened, on
that, second day, Vishi Yadav replied him on his mobile number 9893749386
that, a quarrel took place amongst his friends and suggested him that if
anyone asked him told them that Vishi Yadav was along with him.
36. The other evidence Narendra Bagde (PW-5) has stated that he runs
a restaurant/dhaba in Parasiya Road in the name and style of Ayush Dhaba.
He sits in the dhaba from 06:00 am to 12:00 am and stated that he was not
memorizing that he was acquainted with Shababu or not and has further
stated that four months ago at about 08:00 pm, four to five persons took
dinner on his dhaba. He could not identify the persons but knowing only one
person as he was regularly taking dinner from his dhaba. The dinner was cost
Rs.80-90/- but they had paid Rs.20/- less and in cross-examination, this
witness has not supported the case of the prosecution but the statement of
this witnesses along with the Exhibit-P/12 is perused and compared, one
person whom, the witness was knowing was Shababu and this witness has
clearly stated that he was well acquainted with Shababu as Shababu
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occasionally visiting his dhaba and taking meal from there and six persons
took dinner from his dhaba and the same was cost at Rs.70/- in which, they
had paid Rs.50/- and assured him that they would give Rs.20/- on the next
day and on that assurance, they had gone. Thus, from this statement, it is
clear that just after the incident, the appellant Shababu was travelling in the
bolero car along with four to five other persons.
37. Another factor that has been brought against the appellants is that
witness Madhur Pateriya has clearly stated that on 26.02.2020, he arrested
appellant Vishi Yadav @ Moni Yadav and recorded his memorandum and
also recorded the memorandum of appellant Golu @ Ganesh, Shebabu and
Riyaz and from the information by the appellants, he recovered a silver
bracelet from Vishi Yadav and his clothes full pant, slaty coloured t-shirt,
jerkin and prepared seizure memo (Exhibit-P/24) and from the memorandum
of Shababu, from his residence Shiv Nagar Colony, a knife, a black coloured
pocket purse in which, the coloured passport size photograph of the deceased
Mahant Giri was found , the photocopy of the NOC and transfer documents
of the vehicle UP-53-AT-1224 along with three currency notes of hundred
denomination were found.
38. Appellant Shababu's sky-blue coloured full pant, white discoloured
shirt was recovered and on the same day at about 14:20 from the Shiv Nagar
Colony Jhoparpatti, from the Shababu's house on the submission of seized
HMT company of wrist watch which was having a blood stain in the chain
and Golu's black colour lower, a rexine jerkin that was also having a stain of
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blood was recovered and on the same day at about 16:05 hours from Riyaz's
house, Sagarpesha, Untkhana near water tank Chhindwara a gold ring, that
was having a blood stain and Riyaz's full pant, that was having blood stain, a
full sleeves white colour shirt having sky-blue coloured line were recovered.
This fact has been supported by Ganesh (PW-15).
39. Bracelet, chain, ring, purse, wrist watch were identified by the
father of the deceased Chandrabhal Giri (PW-8) and no suggestion has been
given that these articles were shown to the appellants before the
identification parade.
40. The witness Tarendra Soni (PW-9) is the witness who has
conducted the identification parade of these articles and he has clearly stated
that he was the Up-sarpanch of Village Umreth and Santosh Dongare was the
Panch and the wife of Kamal Chourasiya was the Councillor of Ward No.9.
In Aril 2010, he conducted identification parade in Panchayat Bhawan
Umreth. In identification parade, a black coloured leather purse, a ring that
was bearing letter "C", a bracelet in which something was written, a golden
colour wrist watch were made identified, these articles were brought by the
Police and five articles of same description of each of the above articles were
also brought and they were mixed and the person who have to identify the
articles was asked to identify on which, the articles were correctly identified
by the father of the deceased. The identification memorandum was prepared
which is (Exhibit-P/15) and nothing has been brought against the appellants.
41. The articles that were recovered, it is worth mentioned that the
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father of the deceased has clearly stated that in the bracelet, there was a name
of the deceased and the deceased got the purse of Hero Honda Company
when he purchased the vehicle and further the documents that were
contained in the purse verified the fact that the purse belongs to the deceased
as in that the photocopy of the NOC of the vehicle UP-53-AT-1224 were
recovered. Thus, the stolen property was recovered from the possession of
the appellants and it will be presumed that appellants were the thieves or
purchaser of the stolen property and the appellants have not explained how
they came in the possession of these articles that was recovered within six
days from the incident and it will be presumed that the appellants have
committed the dacoity and it shall also be presumed that the appellants have
obtained the articles after murdering the deceased.
42. One more scientific evidence, that is available on the record and
which clearly proved the guilt of the appellants is DNA report (Exhibit-
P/43). The seized articles, blood stain soil that was recovered from the spot
where dead body was lying, the clothes of the deceased Mahant Giri, the
bracelet that was recovered from Vishi Yadav, clothes of Vishi Yadav,
clothes recovered from appellant Shababu, wrist watch recovered from
appellant Golu @ Ganesh, clothes recovered from Golu, ring recovered from
Riyaz, clothes of Riyaz and the cotton swab in which, the blood stain of the
vehicle number UP-53-AT-1224 where taken. In all these articles, the DNA
of the deceased Mahant has been found.
43. Particularly, the clothes of the deceased Mahant Giri were
recovered after the post-mortem and the description given by the doctor,
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19 CRA-2199-2013
independent witnesses and the Police Officer. It is clear that the deceased
was wearing black colour full pant (dark navy blue may be), a t-shirt, a
shandow baniyan and the same DNA has been recovered in the clothes of
the appellants along with the articles that were recovered from the
possession of the appellants i.e. wrist watch, ring, bracelet, purse and without
any doubt, clearly established that the articles recovered from the possession
of the appellants were of the deceased and the blood stain found in the
clothes of the appellants proved that when they caused the injuries, the blood
came out and it was spread in the clothes of the appellants.
44. Looking to the nature of the injuries that were stabbed injuries, it is
but natural that just after the first or second injury, blood came out with
profusely from the body of the deceased and the appellants have also hidden
the corpus of the deceased and in that, they got the blood stain.
45. The knife recovered from the possession of Shababu Musalman as
opinion by the doctor, the injury could have been caused to the deceased as
suffered by the deceased. Thus, in all these facts and circumstances, it is
clear that the appellants along with the absconding co-accused Sajju has
committed the dacoity and committed his murder.
46. From the description stated in the seizure memo (Exhibit-P/25), the
size of the knife was 12 inch and the length of its blade portion was 8 inch
and as per the description given by Dr. Ashutosh Suryawanshi (PW-17), the
sharp edge portion of the knife was 8 inch and it is clear that the offence was
committed near the public road and as per the notification issued by the State
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20 CRA-2199-2013
of Madhya Pradesh powers given under Section 4 of the Arms Act read with
Government of Indian, Ministry of Home Affairs Notification Number
G.S.R. 1309 dated 01.10.1962. Notification of the State Government was
further published in MP Rajya Patra Part I dated 03.01.1975 page no.20
notification 6312-6552-II-B(i) dated 22.11.1974 Bhopal, and the appellant
was carrying a sharp edged weapon with a blade more than six inch long and
2 inch wide. Possession of sharp edged weapon in the public place without
the license is an offence and in that pursuance, it is clear that, the appellant
Shababu without any permission was having a sharp edged weapon, hence
the conviction of the appellant under Section 25(1-B)(B) of the Arms Act is
also as per law.
47. After the above discussions, the appellants conviction recorded by
the trial Court and the sentence imposed by the trial Court is affirmed.
Appeal being devoid of merits is dismissed.
48. One of the co-accused Sajju is absconding, hence, the case
property be preserved.
49. With the copy of the judgment, the record of the trial Court be sent
back.
50. Information be sent to the concerned jail authorities to intimate the
appellants.
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21 CRA-2199-2013
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
julie
