Madhya Pradesh High Court
Mumtajuddin vs The State Of Madhya Pradesh on 7 July, 2025
Author: Prem Narayan Singh
Bench: Vijay Kumar Shukla, Prem Narayan Singh
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
1 CRA-942-2013
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 942 of 2013
MUMTAJUDDIN
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Amit Singh Sisodia - Advocate for the appellant.
Shri Surendra Kumar Gupta - Govt. Advocate for the respondent/State.
Heard on : 25.06.2025
Delivered on : 07.07.2025
JUDGMENT
Per: Justice Prem Narayan Singh:
1. This criminal appeal is preferred under section 374 of Cr.P.C. by the
appellant being aggrieved by the judgment of conviction dated 15.04.2013, passed
by learned Additional Sessions Judge and Special Judge (Electricity Act), Indore,
District Indore in Special Criminal Case No.115/2012, whereby the appellant has
been convicted for the offence punishable under Section 302 of IPC, 1860 and
sentenced to undergo Life imprisonment and fine of Rs.1000/- and under Section
30 of the Arms Act 1959, sentenced for 06 Months R.I. with fine of Rs.500/-
respectively with usual default stipulations.
2. As per prosecution story, the complainant namely Siyauddin alongwith
his son has lodged a report at police station Sadar Bazar, Indore on 11.11.2011 by
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
2 CRA-942-2013
submitting that he is resident of Sadar Bazar Main Road and having a gun shop by
the name of Malwa Gun House. On that day, he was in his house and at about 3:00
AM, he heard a sound of firing and thereafter, he heard some voices from the
house of his neighbour Mumtajuddin. When the complainant and his son Aashif
went to enquire then they found that wife and daughter of Mumtajuddin namely
Anjum Parveen and Amreen Parveen were crying, Mumtajuddin was standing
there holding a gun in his hands and his sons Mohd. Iqbal and Mohd. Billal both
were lying on the bed in bleeding condition. The blood was oozing out from their
heads. They felt that Iqbal was looking expired and Billal was looking alive.
Mumtajuddin has committed murder of both of his sons by the 12 bore gun. Based
on the said information, the police has registered the FIR bearing Crime
No.440/2011 under Section 302 of IPC and under Section 30 of the Arms Act.
3. The police after following the due procedure of law, reached the spot,
prepared the spot map; collected the blood stained cloths; recorded the statement
of the witnesses; arrested the accused person/appellant and on his instance seized
the gun used in the crime. After due investigation and reconnaissance, charge
sheet was filed before the Judicial Magistrate First Class, who has committed the
matter before the Session Judge.
4. On the basis of the charge-sheet, the charges were framed under Section
302 of IPC and under Section 30 of the Arms Act.
5. The prosecution on its behalf has examined as many as 19 witnesses
namely Anjum Bee (PW-1), Aksha Amreen (PW-2), Mohd. Aslam (PW-3),
Nazimuddin (PW-4), Mohd Aarif (PW-5), Mohd. Aadil (PW-6), Kallu (PW-7),
Anil Sharma (PW-8) Shivlal (PW-9), Siyauddin (PW-10), Abdul Moez (PW-11),
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
3 CRA-942-2013
Dr. N.M. Unda (PW-12), Mohd. Tarik (PW-13), Mohd. Aasim (PW-14), Mohd
Aasif (PW-15), Shyam Sundar Rajput (PW-16), Sunil Kumar (PW-17), Shakila
(PW-18) and Heeralal Choudhary (PW-19). No witness has been adduced in
defence by the appellant.
6. Learned trial Court, on appreciation of the evidence and arguments
adduced by the parties, finally concluded the case and pronounced the impugned
judgment on 15.04.2013, convicted and sentenced the appellant for commission of
the said offence as mentioned in para -1 as above.
7. Learned counsel for the appellant submits that the learned trial Court has
committed grave error of law in not considering the evidence available on record
on its right perspective. It is further submitted that the learned trial Court has not
considered the material omissions and contradictions in the statements of the
witnesses and convicted the appellant wrongly. It is also submitted that there is no
eye-witness in the case so that the case of the prosecution may be found proved.
Learned counsel for the appellant further submitted that the statements of the wife
and daughter of appellant have not been considered by the learned trial Court
rightly and has convicted the appellant even after their hostility. Most of the
witnesses have turned hostile. The incident had happened in presence of
miscreants and the miscreants have killed both sons of the appellant. The appellant
is father of both the deceased and there was no reason or motive for him to murder
his own sons not even one son but two sons. The prosecution has failed to prove
its case beyond reasonable doubt and the appellant is behind the bar since last 14
years only on the basis of presumptions and assumptions that he has committed the
murder of his two sons, whereas there is no cogent evidence against him. The
appellant has been convicted only on the basis of circumstantial evidence. Under
the aforesaid submissions, counsel for the appellant prays for setting aside the
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
4 CRA-942-2013
impugned judgment of conviction and prays for acquittal of the appellant.
8. Per contra, counsel for the State has opposed the prayer by submitting that
the learned trial Court has convicted the appellant rightly after considering the
evidence available on record. It is further submitted that the appellant has
committed murder of his two sons by his own gun. The appellant possesses a
licensed gun and the license of the same was in the name of the appellant. The
incident had happened in the house at 03:00AM in the morning, the complainant
and his son PW-10 and PW-15 respectively have seen that the appellant was
standing on the place of incident, holding the gun in his hands and the deceased
were lying there on the bed and blood was oozing out from their heads, therefore,
the version of the said witnesses and FIR have rightly been assessed by the learned
trial Court and the appellant has rightly been convicted. Therefore, in such a
heinous crime, the appellant does not deserve any leniency and prays for dismissal
of the appeal.
9. We have heard the counsel for the parties and perused the record.
10. From bare perusal of the record, it is clear that in intervening night of
11.11.2011, the deceased Mohd. Iqbal and Mohd. Bilal were murdered by causing
gun shot injury on their heads. After the marg intimation Ex.P.26 and P.27, the
FIR was registered at the instance of complainant Siyauddin PW-10. Wherein, the
complainant has narrated the incident that on the date of incident at 3:00 am, when
he was in his own home, he heard sound of gun shot and some adumbrated noise
from the house of his neighbour, he went to see the same with his son Mohd. Asif
(PW-15). They saw that the appellant was holding a gun in his hands and his both
sons were lying on the bed. The wife of appellant Anjum Parveen (PW-1) and
daughter of appellant Amreen Parveen (PW-2) were crying on the spot. The FIR,
Ex.P/12 was lodged at 3:30 AM i.e. immediately after receiving the marg
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
5 CRA-942-2013
intimation by the police without any delay. The FIR was well fortified by Shyam
Sundar Rajput, Additional Sub-Inspector (PW-16).
11. Here, it is pertinent to mention that the complainant Siyauddin (PW-
10), Anjum Bee (PW-1), wife of appellant and Aksha Amreen (PW-2) daughter of
the appellant have turned hostile and have not supported the case of the
prosecution as it was. Siyauddin (PW-10) has stated that he has sent one injured
out of two to the hospital. Later on, second injured Mohammad Iqbal was also sent
to the hospital. He further stated that he didn't know as to who killed them.
Similarly, the wife and daughter of the appellant have also not supported the
prosecution case and stated that they were in their maternal home at Bhisti
Mohalla, Sadar Bazar, Indore due to death of brother of Anjum (PW-1). Aksha
Amreen (PW-2), daughter of the appellant and sister of the deceased persons has
stated that the complainant and his son have called them from their maternal home
by narrating the incident and thereafter, they came on the spot i.e. at Marathi
Mohalla, Sadar Bazar, Indore. It is important to note that Bhisti Mohalla, Sadar
Bazar (maternal home) and Marathi Mohalla, Sadar Bazar, Indore (where the
incident had happened) are approximately adjacent to each other and having
pedestrian distance between both places. Here, it is pertinent to mention that PW-1
and PW-2 have supported the incident in their police statements recorded under
Section 161 of Cr.P.C., but turned hostile in the Court. Apart that, other relative
and neighbour witnesses Mohd. Aslam (PW-3), Nazimuddin (PW-4), Mohd. Asif
(PW-14), Mohd. Asim (PW-15), Shakeela (PW-18) have also not supported the
prosecution case and turned hostile. However, in Court statements, they have
admitted the fact of death of two deceased persons and also admitted other things
which are useful for prosecution case.
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
6 CRA-942-2013
12. Now, when the incident of murder of two persons had happened in the
residence of the appellant at 3:00 am in the morning by using fire arm and FIR
was lodged at 3:30 am and it was followed by Marg Intimation, all the eye
witnesses including the complainant have turned hostile, we have to see as to
whether the learned trial Court resting on these testimonies, medical evidence and
other corroborative evidence produced by the prosecution, was justified in
convicting and sentencing the appellant or not?
13. At the outset, the nature of death, medical evidence and involvement of
the fire arm is required to be ruminated by this Court. Dr. N.M Unda (PW-12)
who has conducted the postmortem of the bodies has stated that on 11.11.2011, he
has conducted the post mortem (Ex.P/16) of Mod. Iqbal. It is further stated that the
entry point of cartridge was 4x3 cm, the bone of skull was missing and the face
was in very ghastly condition and the size of exit of the cartridge was 19x17 cm.
and depth of the injury was found 14.6 cm. Likewise, in view of post mortem of
deceased Bilal (Ex.P/17), Dr. N.M. Unda (PW-12) deposed that entry point of the
gun shot was 2x2cm., the bone of mouth i.e. Megzila, Nasal bone and Mandible
were fractured, exit point of the gun shot was of 4x3 cm and the depth of the injury
was 17cm. As per these post mortem reports, the death of the deceased persons has
occurred due to gun shot injury.
14. On this aspect, the statement of Investigating Officer, Sunil Kumar
Uikey (PW/17) is also significant. In his statement, he has stated that on the
instance of appellant, as per memorandum statement Ex.P/8, the gun used in the
crime was seized from possession of the appellant from the toilet of first floor of
the house vide seizure memo Ex.P/9. The said gun was 0.22, 12 bore having barrel
No.79362 and it has been mentioned on the said gun as "made in England". As per
the seizure memo, one live cartridge alongwith used cartridge of 12 bore were also
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
7 CRA-942-2013
seized and on both cartridges, "Shaktiman 12 Express 12" was mentioned. The
license of the gun used in the crime was also seized by the investigation officer
vide Ex.P/2. In this regard, the FSL reports (Ex.P/36 & P/37) are also pivotal
which depict that the mechanism of said 12 bore double barrel gun (Article-A) was
in running condition. The cartridges (Ex.EC-1 & EC-2) were fired by that gun
from its right and left barrel. As such, it is established that the death of deceased
persons was caused by gunshot of the aforesaid 12 bore gun which was in the
name of appellant as he is the license holder of the same.
15. Now, turning to the testimonies of the prosecution witnesses and rival
submissions made by learned counsel for the parties, it is quite vivid that this case
is to be decided in cumulative effect of circumstantial evidence and testimonies of
aforesaid hostile witnesses. Certainly, most of the prosecution witnesses have
turned hostile as they are relatives or neighbors of the appellant. They were trying
to defend and protect him from prosecution case. Nevertheless, these witnesses
have also deposed something in favour of prosecution. Now the question remains
as to whether the testimonies of these hostile witnesses can be used in favour of
prosecution or not?
1 6 . On this aspect, the full bench of Hon'ble Supreme Court while
adjudicating this issue in Bhagwan Singh versus State of Haryana, AIR 1976 SC
202 observed as under:-
"8........But the fact that the Court gave permission to the
Prosecutor to cross-examine his own witness, thus,
characterising him as, what is described as a hostile witness,
does not completely efface his evidence. The evidence
remains admissible in the trial and there is no legal bar to
base a conviction upon his testimony if corroborated by other
reliable evidence........"
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
8 CRA-942-2013
17. In Radha Mohan Singh alias Lal Saheb and others versus State of U.P.,
2006(2) SCC 450 another full bench of Hon'ble Supreme Court has further
ordained as under:-
"........It is well settled that the evidence of a prosecution
witness cannot be rejected in toto merely because the
prosecution chose to treat him as hostile and cross-examined
him. The evidence of such witness cannot be treated as
effaced or washed off the record altogether but the same can
be accepted to the extent his version is found to be
dependable on a careful scrutiny thereof........"
18. In light of the aforesaid pronouncements, it is evident that the evidence
of a person does not get wiped out from the record merely because he has taken U-
turn in the Court and resiled from his original statements. In view of this settled
legal position, the testimony of these eye witnesses of the case at hand is required
to be examined. In this regard, the statements of Siyauddin PW-10 is significant,
who was declared hostile, stated in para no.10 of his examination-in-chief that
when he reached the spot, two sons were lying injured and
Mumtajjuddin/appellant was also present on the spot. Presence of the appellant on
the spot has not been specifically disputed in his cross-examination by defense
counsel. Likewise, Anjum PW-1 the wife of appellant and Aksha Amreen PW-2
the daughter of appellant have also turned hostile. However, they have admitted
the death of two deceased persons and have never stated that the appellant was also
with them at their maternal home at Bhisti Mohalla, Sadar Bazar. Thus, it is clear
that the appellant was at his own residence i.e. at the place of incident. Aksha
Amreen PW-2 has also stated that she has seen the sign of injury on the face of her
elder brothers Mohd. Iqbal and Mohd. Bilal. In this way, the aforesaid statements
of these three witnesses cannot be brushed aside only on the basis of their hostility
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
9 CRA-942-2013
in view of the aforesaid settled legal proposition. Since, the aforesaid testimony
has not been challenged in their cross-examination, it is established that when
complainant Siyauddin PW-10 entered into the house of appellant, the appellant
was present on the spot and two deceased/injured persons were found lying on the
bed.
19. Learned counsel for the appellant has also raised the question of motive
and submitted that since there was no motive proved by the prosecution, the
appellant cannot be convicted in such type of case which solely depends upon the
circumstantial evidence. Be that as it may, according to the prosecution story, this
criminal case pertains to an irrational act of the appellant where he has fired gun
shots on his own sons. In such type of irrational act, lack of motive could not be
fatal for the prosecution case.
20. In so far as the value of motive is concerned, following verdict of
Hon'ble Supreme Court rendered in Amitava Banerjee vs. State of West Bengal,
AIR 2011 SC 2913, is relevant to this case, which is as under:-
"27. Motive for the commission of an offence no doubt
assumes greater importance in cases resting on circumstantial
evidence than those in which direct evidence regarding
commission of the offence is available. And yet failure to
prove motive in cases resting on circumstantial evidence is
not fatal by itself. All that the absence of motive for the
commission of the offence results in is that the court shall
have to be more careful and circumspect in scrutinizing the
evidence to ensure that suspicion does not take the place of
proof while finding the accused guilty......."
21. Similarly, in the case of Anil Kumar V State, 2011 (5) AD (Delhi) 351 it
was held as under:-
Motive always locks up in the mind of the accused and some
time it is difficult to unlock. People do not act wholly
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
10 CRA-942-2013
without motive. The failure to discover the motive of an
offence does not signify its non-existence. The failure to
prove motive is not fatal as a matter of law. Proof of motive
is never an indispensable for conviction. When facts are clear
it is immaterial that no motive has been proved.
22. In view of the aforesaid pronouncements, it is well settled that in the
cases related to strong circumstantial evidence, the absence of motive would not
be enough to obviate the accused from the clutches of law. Hence, the contention
of learned counsel regarding motive has no force.
23. Actually, in this case, four material circumstances are available against
the accused. Firstly, the presence of accused with deceased persons inside the
privacy of same house; secondly, the said gun was seized on the memorandum
statement of appellant himself from a surreptitious place of toilet situated at first
floor of his house and thirdly; the death of deceased was due to gun shot fired by
the licensed gun which was owned by the appellant and fourthly; the defense
raised by the appellant has neither been produced nor proved.
24. So far as the first circumstance is concerned, in view of aforesaid
discussion of statements of complainant Siyauddin PW-10, Anjum PW-2 and
Aksha Amreen PW-3, it is well established by prosecution that appellant was
present at the spot of incident where his two sons were murdered. In this regard,
the view of Hon'ble Apex Court in Trimukh Maroti Kirkan vs. State of
Maharashtra [(2006) 10 SCC 681], is relevant to refer here:-
If an offence takes place inside the privacy of a house and in
such circumstances where the assailants have all the
opportunity to plan and commit the offence at the time and in
circumstances of their choice, it will be extremely difficult
for the prosecution to lead evidence to establish the guilt of
the accused if the strict principle of circumstantial evidence,
as noticed above, is insisted upon by the Courts. A Judge
does not preside over a criminal trial merely to see that no
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
11 CRA-942-2013
innocent man is punished. A Judge also presides to see that a
guilty man does not escape. Both are public duties. (See
Stirland v. Director of Public Prosecution 1944 AC 315
quoted with approval by Arijit Pasayat, J. in State of Punjab
vs. Karnail Singh (2003) 11 SCC 271). The law does not
enjoin a duty on the prosecution to lead evidence of such
character which is almost impossible to be led or at any rate
extremely difficult to be led.
25. In view of the aforesaid law, if such circumstances have not been
explained by appellant in his examination of accused under Section 313 of
Cr.P.C., or at any point of time, the presumption of guilt will be drawn against the
same. In a judgment rendered in Revatibai And Others vs. State of M.P. [2019
LawSuit (MP) 441 (CRA No.799/1994 (Jabalpur), this Court following the law
laid down in Trimukh Maroti (supra) and other judgments ordained as under:-
"23. The ratio decidendi of this judgment was followed by
Apex Court in 2007(12) SCC 288 (Swamy Hraddananda Vs.
State of Karnataka), 2009(6) SCC 61 (Narendra Vs. State of
Karnataka), 2016(13) SCC-12 (Jamnadas Vs. State of
Madhya Pradesh) and by Division Bench of this Court in
2018 SCC Online MP-904 (Smt. Sudama Bai Vs. State of
Madhya Pradesh). As per principle laid down in the case of
Trimukh Maroti (supra), it is the duty of the court to ensure
that no innocent man is punished. Similarly, court is under an
obligation to ensure that a guilty man does not escape
appropriate punishment. The courts considered the impact of
section 106 of the Evidence Act which says that any fact
which is specially within the knowledge of any person, the
burden of proving that fact is 16 Criminal Appeal
No.799/1994 upon him/them. On the principle underlying
section 106, the burden to establish those facts is cast on the
person concerned and if he fails to establish or explains those
facts, an adverse inference of fact may arise against him (See:
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
12 CRA-942-2013
1974(2) SCC 544 Collector of Customs Vs. D. Bhoormal).
Thus, governing principle is that when an incriminating
circumstance is put to the accused and the accused either
offers no explanation or offers an explanation which is found
to be untrue, then the same becomes an additional link in the
chain of circumstances to make it complete."
26. Since, the accused could not explain the aforesaid circumstance relating
to his presence with the deceased persons inside the privacy of same house, his
guilt can be presumed.
27. Now, turning to the second circumstance i.e. evaluation to the disclosure
memo Ex.P/8 and recovery memo Ex.P/9 are required to be ruminated here. As per
the disclosure memo Ex.P/8, the appellant has stated before the police and
witnesses under Section 27 of the Evidence Act that he has kept the "said gun" in
the corner of toilet situated at first floor of the house and thereafter, the gun was
seized from that place on the instance of the appellant. Now, the question arises
that why the "gun" was concealed in a surreptitious place when nothing wrong was
done by the appellant with the said gun. This conduct of the appellant itself shows
his guilty mind and there is no explanation in this regard, in his examination of
accused under Section 313 of Cr.P.C. Here, it is significant to mention that
memorandum statements and seizure memo have been well established by
Investigation Officer PW-17 Sunil Kumar Uikey and duly been corroborated by
the statement of Kallu (PW-7).
28. As regards the third circumstance, in the case at hand, from perusal of
the evidence available on record, it is clear that the appellant was having a 12 bore
double barrel licensee gun which is duly proved by his license Ex.P/2. The FSL
reports Ex.P/36 and Ex.P/37 have also clearly depicted that the bullets which have
been fired on the deceased were fired by the said gun seized from the possession of
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
13 CRA-942-2013
the appellant. It is also well proved that the said gun was in running condition and
both cartridges Ex.EC-1and Ex.EC-2 were fired by the said gun from its right and
left barrel. As such, it is well established that the death was caused by gun shot of
the aforesaid 12 bore gun.
29. Now coming to the fourth circumstance with regard to the defense of
theft and murder by anonymous persons, in this regard, it is expostulated by
learned counsel for the defense that both of the deceased persons were killed by
miscreants/thieves. But, in this context, it has also to be considered that if the
miscreants committed loot and if it is supposed for a moment that there was any
altercation between the miscreants and deceased persons, why the miscreants had
kept the gun after incident at surreptitious place in a toilet, whereas, they were
having the opportunity either to throw the same on the place of incident or to take
away the gun with them. Thus, explanation is expected from the appellant as to
how the deceased persons were killed. It is also demurred that with regard to the
said miscreants/thieves suggestions were given to the defense counsel in cross-
examination of Aksha Amreen PW-2. Actually, this defense has not been raised
by counsel for the defense properly. Neither any witness has been produced in this
regard nor appellant himself has stated anything in examination of accused under
Section 313 of Cr.P.C. Here, it is also questionable fact that if such a crime of loot,
theft or murder was occurred in the house of appellant, as to why the appellant or
his family members have not lodged any report against those anonymous
miscreants. This circumstance also supports the prosecution story as these
deceased persons were killed by appellant himself.
30. Learned counsel for the appellant has submitted that when the mother &
sister and other neighbors are not supporting the case of the prosecution, the
appellant cannot be convicted only on the basis of circumstantial evidence. This
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
14 CRA-942-2013
contention is not worth to be accepted because in such type of cases where the
family members are involved in a crime, it cannot always be envisaged that other
family members will state against the family member in the Court who is involved
in the crime. It is established law that "witnesses may lie, but circumstances do
not". In this context, a judgment rendered in Rameshbhai Mohanbhai Koli and
Other vs. State of of Gujarat, 2010 LawSuit (SC) 734, wherein all eyes witnesses
declared hostile, Hon'ble supreme Court has observed as under:
"......This Court has noted and observed in a large number of
cases that witnesses may lie but circumstances do
not............"
31. On this aspect, in the case of Aftab Ahmad Anasari vs. State of
Uttrakhand [2010 (2) SCC 583], the Hon'ble Apex Court has observed as under:
"This Court has heard the learned counsel for the parties and
considered the documents forming part of the appeal. It is
relevant to notice that the prosecution has not claimed that
the rape and murder of the deceased was witnessed by anyone
and no direct evidence regarding the same is adduced before
the court. Admittedly, the whole case against the appellant
rests on circumstantial evidence. The law relating to
circumstantial evidence is well settled. In dealing with
circumstantial evidence, there is always a danger that
conjecture or suspicion lingering on mind may take place of
proof. Suspicion howsoever strong cannot be allowed to take
place of proof and, therefore, the Court has to judge
watchfully and ensure that the conjectures and suspicions do
not take place of legal proof. However, it is no derogation of
evidence to say that it is circumstantial. Human agency may
be faulty in expressing picturization of actual incident but the
circumstances cannot fail. Therefore, many a times, it is aptly
said that "men may tell lies, but circumstances do not". In
cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be
drawn should, in the first instance, be fully established. Each
fact must be proved individually and only thereafter the
Court should consider the total cumulative effect of all the
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
15 CRA-942-2013
proved facts, each one of which reinforces the conclusion of
the guilt. If the combined effect of all the facts taken together
is conclusive in establishing the guilt of the accused, the
conviction would be justified even though it may be that one
or more of these facts, by itself/themselves, is/are not
decisive. The circumstances proved should be such as to
exclude every hypothesis except the one sought to be proved.
But this does not mean that before the prosecution case
succeeds in a case of circumstantial evidence alone, it must
exclude each and every hypothesis suggested by the accused,
howsoever extravagant and fanciful it might be. There must
be a chain of evidence so far complete as not to leave any
reasonable ground for conclusion consistent with the
innocence of the accused and it must be such as to show that
within all human probability, the act must have been done by
the accused. Where the various links in a chain are in
themselves complete, then a false plea or a false defence may
be called into aid only to lend assurance to the Court. If the
circumstances proved are consistent with the innocence of the
accused, then the accused is entitled to the benefit of doubt.
However, in applying this principle, distinction must be
made between facts called primary or basic on the one hand
and inference of facts to be drawn from them on the other. In
regard to the proof of basic or primary facts, the Court has to
judge the evidence and decide whether that evidence proves a
particular fact or not and if that fact is proved, the question
arises whether that fact leads to the inference of guilt of the
accused person or not. In dealing with this aspect of the
problem, the doctrine of benefit of doubt applies. Although
there should be no missing links in the case, yet it is not
essential that every one of the links must appear on the
surface of the evidence adduced and some of these links may
have to be inferred from the proved facts. In drawing these
inferences or presumptions, the Court must have regard to the
common course of natural events, and to human conduct and
their relations to the facts of the particular
case."
Emphasis supplied
32. That apart, it is very strange that at the preliminary stage of examination, all
the witnesses have admitted that the appellant has committed murder of his two
sons, but during the trial, they all have turned hostile and have not supported the
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
16 CRA-942-2013
case of the prosecution since they all are related witnesses. The testimony of
Siyauddin PW-10 is also significant. Since on his complaint, the criminal
proceedings of this case have been initiated, he cannot be allowed to paralyse the
truth by taking U-turn before the Court. A witness cannot be permitted to hijack
justice by turning hostile before the Court specially when he himself has lodged
the complaint/FIR. The said instant FIR must get some credence if it is
corroborated by some other evidence. On this aspect, the Hon'ble Apex Court in
the case of Bable @ Gurdeep Singh vs. State of Chattisgarh [(2012) 11 SCC 181] ,
held that if the complainant on whose behest FIR was lodged, turned hostile but
the prosecution is proved by other evidence, the contents of the FIR cannot be
discarded.
33. Further, learned counsel for the appellant has raised the question that the
finger prints of the appellant have not been taken by the police, therefore, the case
of the prosecution cannot be believed. Certainly, such defect is visualized in this
case, but where the case is originally supported by the witnesses or based on clear
circumstantial evidence, such type of carelessness or lapse would not mean that
entire prosecution story is vitiated due to lack of finger print or expert report
thereto. In this regard, the following extract of the judgment of Hon'ble Apex
Court rendered in C. Muniappan and others vs. State of Tamilnadu, AIR 2010 Sc
3718, is condign to quote here:-
"44. There may be highly defective investigation in a case.
However, it is to be examined as to whether there is any
lapse by the I.O. and whether due to such lapse any benefit
should be given to the accused. The law on this issue is well
settled that the defect in the investigation by itself cannot be a
ground for acquittal. If primacy is given to such designed or
negligent investigations or to the omissions or lapses by
perfunctory investigation, the faith and confidence of the
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
17 CRA-942-2013
people in the criminal justice administration would be
eroded....."
34. In this context, we would like to repeat well known proverb that "perfect
proof is seldom to be had in this imperfect world, and absolute certainty is a
myth". [Sanjay Rajak vs. State or Bihar, AIR 2019 SC 3524] . Hence, on account
of defective investigation, the whole prosecution case, cannot be thrown out.
Actually, since this case depends upon circumstantial evidence, we have examined
the cumulative effect of whole circumstances as above. In appreciating the
evidence, the approach of the courts must be integrated not truncated or isolated.
In light of the aforesaid proved circumstances, the hostility of family members and
neighbors of the appellant cannot be allowed to frustrate the cause of justice.
35. Thus, in view of the aforesaid appreciation of circumstantial evidence
and elaborate analysis of the entire evidence available on record, it can be safely
held that the prosecution has successfully proved its case beyond all reasonable
doubts that the accused has murdered his two sons by using his licensed gun with
intention and knowledge to cause their death and by doing so, he had committed
the culpable homicide amounting to murder and therefore, the conviction under
Section 302 of IPC and under Section 30 of Arms Act, is found infallible in the
eyes of law and fact.
36. So far as the submissions of learned counsel for the appellant regarding
sentence is concerned, learned counsel has entreated that since appellant has
already completed the incarceration period of 14 years, lenient view is desired
from the Court. Since the offence of murder punishable under Section 302 of IPC
has been provided with minimum sentence of imprisonment of life with fine, this
Court is not expected to minimize the sentence in anyway. However, as per
Section 433 read-with 433-A of Cr.P.C./Section 474 read-with 475 of BNSS,
NEUTRAL CITATION NO. 2025:MPHC-IND:16852
18 CRA-942-2013
2023, the appropriate Govt. has a discretion to commute the sentence and Courts
are not required to ordain any directions in the regard.
37. In view of the aforesaid foregoing discussions, we found that the
findings of the learned trial Court recording conviction of the appellant under
Section 302 of IPC and under Section 30 of the Arms Act and sentencing the
appellant for life imprisonment and six months alongwith fine of Rs.1000/- and
Rs.500/-respectively, are immaculate and no interference is called for.
Consequently, the findings of the learned trial Court are affirmed.
38. Here, it is clarified that the appellant shall undergo imprisonment for life
under Section 302 of IPC with fine of Rs.1000/- and six months under Section 30
of the Arms Act with fine of Rs.500/-. Both the sentences shall run concurrently.
In case of default of payment of fine amount, he shall further undergo Rigorous
Imprisonment for a period of six months and two months respectively, if the
imprisonment of life is commuted under Section 433/433-A of Cr.P.C. or under
Section 474/475 of BNSS.
39. The judgment of the learned trial Court regarding disposal of the seized
property stands affirmed.
40. With the aforesaid, the Criminal Appeal is dismissed.
A copy of this judgment be sent to the learned trial Court for information.
(VIJAY KUMAR SHUKLA) (PREM NARAYAN SINGH)
JUDGE JUDGE
amit
