[Cites 12, Cited by 0]
Madhya Pradesh High Court
Bunty @ Banshi vs The State Of Madhya Pradesh on 31 March, 2026
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE RATNESH CHANDRA SINGH BISEN
CRIMINAL APPEAL No. 2812 of 2022
BUNTY @ BANSHI AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Jaydeep Kaurav - Advocate for the appellants.
Shri Manas Mani Verma - Govt. Advocate for the respondent/State.
Reserved on : 20/01/2026
Delivered on : 31/03/2026
JUDGMENT
Per: Justice Ratnesh Chandra Singh Bisen
Learned counsel for the appellants prays for withdrawal of I.A.
No.26208/2025, which is second application for suspension of sentence
and grant of bail to the appellant No.1 Bunty @ Banshi.
2. Accordingly, I.A. No.26208/2025 is dismissed as withdrawn.
3. With the consent of learned counsel for the parties, the case is
heard finally.
4. This criminal appeal under Section 374(2) of the Cr.P.C. is filed by
the appellants being aggrieved of the judgment dated 22/02/2022 passed
by the learned 2nd Additional Sessions Judge, Gadarwara, District
Narsinghpur (M.P.) in S.T. No.227/2013, whereby the learned trial
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Court has convicted and sentenced the appellants in following terms as
under :-
Conviction Sentence
Imprisonment
Section Act Imprisonment Fine
in lieu of fine
Appellant No.1 Bunty @ Banshi and appellant No.2 Rajju @ Anand
302/120- Life R.I for 3
I.P.C. Rs.2,000/-
B Imprisonment months
R.I. for R.I. for 02
201/34 I.P.C. Rs.1,000/-
05 years months
Appellant No.3 Kamlesh
302/120- Life R.I. for 3
I.P.C. Rs.2,000/-
B Imprisonment months
5. Learned counsel for the appellants submits that as per
prosecution story on 06.03.2013 one dead body of unknown person
(deceased) was found on Bohani Kareli Down Track. A written Tehrir
was given by R.K. Maravi, Substation Superintendent at Police Station
Kareli on which Marg Intimation No.10/2013 was registered and
during the course of the investigation, the statements of Jeera Bai (P.W.-
1), Sita (P.W.-2), Abhishek Patel (P.W.-3), Bhagwan Das (P.W.-4) and
other witnesses were recorded and it comes to the knowledge of
the investigation officers that appellant No. 3 Kamlesh had old enmity
with the deceased Govind and appellant No. 1 Bunty was last seen with
the deceased, on the basis of such evidence, criminal case was registered
against the appellants and they were arrested. It is submitted that there is
lot of contradictions and omissions in the deposition of the prosecution
witnesses. Prosecution has failed to prove its case beyond reasonable
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doubt, the benefit of doubt goes in favour of accused persons. It is
further submitted that there is no evidence that there was any intention
of the accused persons to commit the murder of deceased. The present
case is only based upon last seen evidence, the witnesses of last seen in
their cross-examination denied this fact that deceased was last seen with
the appellants. In these circumstances, judgment passed by the trial
Court be set aside and appellants may be acquitted from the aforesaid
charges.
6. Shri Manas Mani Verma, learned Public Prosecutor for the State
supported the judgment of conviction passed by the trial Court.
7. Heard the learned counsel for the parties.
8. Jeerabai @ Bhooribai (PW-1) deposed that Govind Patel was her
husband and he died in the year 2013. She stated that there had been a
dispute between her husband and Kamlesh Patel. Kamlesh had
threatened to kill her husband, and she had lodged an FIR at Police
Station Tendukheda in that regard. She further stated that accused Bunty
and Rajju came to her house and took her husband Govind Patel with
them. Thereafter, her husband did not return home. She received a phone
call from her sister, Neema Bai, informing her that Bunty had called and
stated that her brother-in-law Govind Patel had been admitted to Kareli
Hospital and was unable to speak. She went to Kareli Hospital but did
not find her husband there. She then went to Kareli Police Station and
informed the police that Bunty and others had taken her husband from
their house on 04.03.2013. The police asked her to identify her
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husband's clothes and slippers, which she did. Thereafter, the Sub-
Divisional Officer, Kareli, was called, and her husband's body was
exhumed from Muktidham, Kareli. She identified the body as that of her
husband. The identification panchnama is Ex.P-1 and the spot
panchnama is Ex.P-2. The dead body was handed over to her for
cremation, and the Shav Supurdnama is Ex.P-3.
9. Seeta (PW-2), daughter of the deceased Govind Patel, deposed that
in March 2013, accused Bunty and Rajju came to her house and took her
father with them, stating that they had to go to Sarra. Thereafter, her
father did not return. She stated that there was prior enmity between her
father and accused Kamlesh Patel. About 10-12 days prior to the
incident, Kamlesh had come to their house, threatened to kill her father,
and expressed his intention to do so.
10. Abhishek Patel (PW-3) deposed that about two years prior,
Govind Patel had come to his fruit shop and inquired about the bus
timing for Narsinghpur. He informed him that the bus was at 5:00 PM,
after which Govind left. About 15-20 days later, he came to know that
Govind had been murdered. He was declared hostile by the prosecution
and, despite being cross-examined with leading questions, did not
support the prosecution case.
11. Bhagwandas (PW-4) stated that accused Rajju @ Anand and
Bunty had taken his brother Govind from his house on the date of the
incident. Three days later, he received information that his brother had
met with an accident. Accused Bunty had called Neema Bai (his sister-
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in-law) and informed her about the accident. Neema Bai then informed
him over the phone. He and Jeerabai went to Kareli Police Station and
identified the clothes and slippers of the deceased as belonging to
Govind. The body had been buried at Muktidham, Kareli. Upon his
application, the body was exhumed. After seeing the body, he identified
it as that of his brother. The Shav Panchnama is Ex.P-1.
12. Mahesh Prajapati (PW-5) and Dharmendra Prajapati (PW-6) were
declared hostile as they did not support the prosecution case despite
being cross-examined by the prosecution.
13. Neema Bai (PW-7) admitted that she knew accused Bunty @
Bansi, Kamlesh, and Rajju @ Anand. The deceased Govind was her
brother-in-law. At the relevant time, she was at her in-laws' village,
Duhani, District Shivpuri. Bunty called her and inquired about her
relationship with Govind. Upon learning that Govind was her brother-in-
law, Bunty informed her that Govind had met with an accident at Kareli
Railway Station and that he had consumed alcohol with him. She
informed her sister Jeerabai, then Jeerabai went to Kareli Railway
Station with her relatives and Jeerabai called her and told that they were
not getting Govind at Kareli Railway Statiion. After that, she called
Bunty, who told her to go to the police station to find out Bunty, then
Bunty said that do whatever she want, he had killed him.
14. Suresh Kumar Jat (PW-8) deposed that on 06.03.2013, while
posted as Head Constable at Kareli Police Station, he received a written
complaint (Tehreer) regarding the death of an unknown person lying on
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the railway track. On that basis, Marg Intimation No. 10/13 under
Section 174 Cr.P.C. was registered. The Marg Intimation is Ex.P-7. In
cross-examination, he admitted that the written complaint did not
specifically state that the person had been cut by a train; it only stated
that an unidentified dead body was lying on the railway track.
15. Rajkumar Thakur (PW-10) admitted his signatures on
memorandum statements Ex.P-11 to Ex.P-13 but stated that no articles
were seized in his presence and that the accused were not arrested in his
presence. This witness was declared hostile and questions were asked in
cross-examination, but in answer to those questions this witness has not
made any statement which would benefit the prosecution.
16. Purushottam @ Santosh Jatav (PW-11) deposed regarding seizure
proceedings but did not fully support the prosecution regarding
memorandum statements and recovery. He was declared hostile and
questions were asked in cross-examination, but in answer to those
questions this witness has not made any statement which would benefit
the prosecution.
17. R.K. Bharti (PW-14), Assistant Station Master, stated that the
train driver informed him via walkie-talkie that an unidentified body was
lying ahead of Lal Pul. He forwarded written information to the police,
which is Ex.P-29.
18. Vinod Tiwari (PW-15) deposed that on 06.03.2013 he was posted
as Sub-Inspector at Police Station Kareli and received Marg (Inquest)
No. 10/2013 under Section 174 Cr.P.C. for inquiry. During the inquiry,
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he prepared the spot map (Ex. P-22) at the instance of Devi Prasad Sahu,
issued notices under Section 175 Cr.P.C. (Ex. P-30), and conducted the
inquest proceedings (Ex. P-31) over the dead body of an unidentified
male aged about 30-35 years. He sent the body for post-mortem
examination through Constable Mukesh Sharma (requisition Ex. P-8).
From the spot near Trali Teeha ahead of Railway Down Line Lal Pul, he
seized a plastic slipper, blood-stained soil and gravel, plain soil, and a
cigarette butt. On 08.03.2013, certain clothes and articles were identified
at Police Station Kareli by Jeerabai, wife of deceased Govind Kirar, and
Bhagwandas, who stated that the articles belonged to Govind Kirar; the
identification panchnama is Ex. P-1. After exhumation and identification
by the Tehsildar, the deceased was confirmed to be Govind Kirar and
the body was handed over to his family. He recorded statements of
witnesses on 10.03.2013 and 11.03.2013 and got the scene and dead
body photographed. Upon completion of the Marg inquiry, he submitted
his report (Ex. P-33) on 19.03.2013. In cross-examination, he admitted
that the body was lying on the railway track and had been cut by train
wheels, that the head was severed, and that as per the inquest report,
death due to a train accident was possible. He further admitted that
Jeerabai did not name accused Rajju in her statement. He himself stated
that apart from Bunty, another boy has been mentioned by the accused.
19. Kaushal Singh (PW-12), who was posted as Station House Officer
at Police Station Kareli on 19.03.2013, deposed that on the basis of
Marg No. 10/2013, Crime No. 81/2013 was registered under Sections
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302, 201, 120-B, and 34 IPC against accused Bunty @ Banshi Prajapati,
Rajju @ Anand Prajapati, and Kamlesh Kirar (FIR Ex. P-21). During
investigation, he sought medical opinion regarding the nature of death
and requested call detail records (Ex. P-23). On 20.03.2013, the accused
were taken into custody and their memorandum statements under
Section 27 of the Evidence Act were recorded. Pursuant to their
disclosures, Rs.50,000/- and a Spice mobile phone were seized (Ex. P-
14), a Micromax mobile phone and Rs.18,000/- were seized (Ex. P-17),
an iron plate allegedly used in the offence was recovered near the
railway track (Ex. P-16), and a Maxx mobile phone was seized from
accused Kamlesh (Ex. P-15). The accused were formally arrested (Ex.
P-18 to P-20), and the seized articles were sent to the Forensic Science
Laboratory, Sagar (Ex. P-24 to P-27). The call detail records and
customer application forms revealed telephonic conversations among the
accused before and after the incident, including a call on 07.03.2013
between accused Bunty and the deceased's sister-in-law, Neema Bai.
After completion of the investigation, the charge-sheet was filed before
the Judicial Magistrate First Class, Gadarwara.
20. Devi Prasad Sahu (PW-16) deposed that the police had prepared
the spot map of the place of incident before him. Spot map is Ex.P-22.
The police had not seized any item in front of him. This witness has
been declared hostile.
21. Rajesh Shah (PW-17) deposed that on 08.03.2013, he was posted
as Tehsildar at Kareli. On that date, under the direction of the Sub-
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Divisional Magistrate, Narsinghpur, he conducted the exhumation of the
deceased's body in connection with Marg No.10/2013 at Mukti Dham,
Kareli, in the presence of witnesses. Upon examining the body, Jeerabai
and the deceased's brother, Bhagwandas identified the deceased as
Govind son of Ramratan Kirar, resident of Gwari, Tehsil Tendukheda.
All remains and parts of the deceased's body were handed over to
Bhagwandas and Jeerabai for cremation. He further deposed that he
prepared a Panchnama in this regard, which is marked as Ex.P-2.
22. Satish (PW-20) deposed that he runs Srishti Photo Studio in
Radhavallabh Ward, Kareli, and has been working as a photographer for
approximately 40 years. In 2013, the Kareli Police Station requested
him to photograph a crime scene located between Kareli Railway
Station and Bohani Railway Station, where a man's body had been
found mutilated. He took 15 photographs from different angles, which
were prepared and handed over to the Police Station In-charge. These
photographs are marked as Ex.P-36.
23. Govind Patel (PW-21) deposed that he was posted as Head
Constable at Kareli Police Station on 06.03.2013. On that date,
Constable Mukesh No.144 brought the viscera of the deceased in a
sealed bag, which contained the lungs, liver, kidneys, pieces of the small
and large intestines, a saline solution, a sealed packet containing the
deceased's clothes, and a packet with fingerprints labeled on it. He
seized these items in the presence of witnesses, as per the seizure memo
Ex.P-51. Further, on 21.03.2013, Constable Anurag No.62 brought a
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sealed packet containing the saliva of accused Rajju @ Anand Prajapati
from the Government Hospital, which he also seized in the presence of
witnesses, as per seizure memo Ex.P-52.
24. Chetan Pradhan (PW-22) deposed that his office received a letter
from the office of the Superintendent of Police, District Narsinghpur,
vide letter No. 119A/13 dated 30.04.2013, requesting the call details and
a verified copy of the Customer Application Form (CAF) for mobile
number 9893515655 for the period 25.02.2013 to 20.03.2013, in
connection with Crime No. 81/13 of Police Station Kareli under
Sections 302, 201, 120B/34 IPC, which is marked as Ex.P-53. Upon
receiving the said letter, he recognized the signature of the then Nodal
Officer of his office, Saidutt Bohra, with whom he had previously
worked. Saidutt Bohra has since left the company, and no information
regarding his current address is available in the office. In compliance
with the letter received from the Superintendent of Police, Narsinghpur,
his office issued, on 14.05.2013, the call details of mobile number
9893515655 for the period 25.02.2013 to 20.03.2013, marked as Ex.P-
54, and the CAF of the said number, marked as Ex.P-55, both bearing
the office seal. A letter was sent to the Superintendent of Police,
Narsinghpur, confirming the transmission of the information, which
bears the signature of the then Nodal Officer, Saidutt Bohra. He further
admitted in his cross-examination that the CAF (Ex.P-55) mentions the
name Ashok Kumar but does not mention the caste of the SIM card
holder. Additionally, there is no mention of the name of the SIM card
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holder in the call detail report.
25. Shrikant Majarkhede (PW-23) stated that his office received a
letter from the Superintendent of Police, District Narsinghpur, vide letter
No. 119A/13 dated 30.04.2013, requesting call details and verified
copies of CAFs for mobile numbers 9977618433, 8966038288, and
7354740024 for the period 25.02.2013 to 20.03.2013 in connection with
Crime No. 81/13 of Police Station Kareli under Sections 302, 201,
120B/34 IPC. After receiving the letter, he recognized the signature of
the then Nodal Officer, Rajesh Kumar Singh, with whom he had
previously worked. Rajesh Kumar Singh has since moved to another
department, and no information regarding his current address is available
in the office. In compliance with the request, his office obtained the call
details of mobile numbers 9977618433, 8966038288, and 7354740024,
which are contained in 13 pages, marked as Ex.P-58, and the CAFs of
the said numbers, in 8 pages, marked as Ex.P-59, bearing the office seal
and the signature of the then Nodal Officer, Rajesh Kumar Singh. He
admitted in his cross-examination that the call detail report (Ex.P-58)
does not mention the subscriber of mobile number 7354740024.
According to the Kaifiyah report, mobile number 9977618433 is
registered in the name of Kishori Lal, and mobile number 7354740024
is registered in the name of Govind.
26. Sanjay Kumar (PW-24) deposed that on 11.03.2013, he was
posted as a constable in the Cyber Branch of the Superintendent of
Police, Narsinghpur. Police Station Kareli had prepared call details for
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mobile numbers 9893515655, 9827424539, 7898457271, and
9977618433 for the period 20.02.2013 to 11.03.2013. The call details of
mobile number 9977618433, in five pages, were prepared and marked
as Ex.P-61, and the tower location of the same number is Ex.P-62. The
call details also mention the time duration of calls, marked as Ex.P-63.
The name of the subscriber of mobile number 9977618433 is Kamlesh,
and mobile number 8966038288 is registered in the name of Anand
Kumar, as per Ex.P-64. The call details of mobile number 9827424539
are marked as Ex.P-65. This number is registered in the name of
Mahesh Prajapati, Ward No. 57, Bhairav Nagar Medical, Tripuri
Chowk, Jabalpur, as per Ex.P-66. The identity documents of the
subscriber, including the driving license, are marked as Ex.P-68.
Similarly, the call details of mobile number 9893515655 are marked as
Ex.P-69, and its location chart is marked as Ex.P-70. This number is
registered in the name of Ashok Kumar Singh, father Sukhu, residing at
House No. 32, Belkheda Patan, Jabalpur (Ex.P-71). The call details of
mobile number 7354740024, in three pages, are marked as Ex.P-72, and
this number is registered in the name of Govind, address Village
Bhavra, Tendukheda, Tehsil Kareli (Ex.P-73). The call details of mobile
number 8966038288, in five pages, are Ex.P-74, and its location chart in
three pages is Ex.P-75. The call details of mobile number 7898457271,
in three pages, are Ex.P-76, and its tower location is Ex.P-77. He
collected all the above information and transmitted it to the Station
House Officer, Kareli, through the office of the Superintendent of
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Police, Narsinghpur, marked as Ex.P-78.
27. PW-24 was examined again as PW-25, wherein he stated that in
compliance with the above letter, the call details of mobile number
9827424539, in 18 pages, are marked as Ex.P-80, and the CAF in two
pages is marked as Ex.P-81. These were received from Reliance
Communication Limited, Bhopal, through the office of the
Superintendent of Police, Narsinghpur, vide letter Ex.P-82, and were
handed over to Police Station Kareli on behalf of his office.
28. The evidence of Jeerabai alias Bhooribai (P.W.-01), who is the
wife of the deceased Govind Patel, makes it clear that the accused Bunty
and Rajju took her husband with them and thereafter her husband did
not return home. Accused Bunty had called Jeerabai's sister Neemabai
and Neemabai (P.W.07) then informed her sister Jeerabai over the phone
that Govind Patel had been admitted to Kareli Hospital.
29. From the statement of Neemabai (P.W.-07), it is also confirmed
that accused Bunty informed her on her mobile phone that Govind had
met with an accident at Kareli Railway Station. She then informed her
sister Jeerabai about the incident. Jeerabai along with her relatives went
to Kareli Railway Station, but Govind could not be found there.
Neemabai again called accused Bunty, who then stated that he had killed
Govind and that she could do whatever she wanted.
30. Thus, upon considering the testimonies of these two witnesses, the
conclusion emerges that the deceased Govind was last seen being taken
by accused Bunty and Rajju on 04.03.2013, and thereafter, he never
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returned home. Subsequently, only his dead body was found. It is also
evident that accused Bunty had informed Neemabai (P.W.-07) over the
phone that he had killed Govind. From Exhibit P-65, it is revealed that
on 07th March, 2013 at 17:34:12 hours, a call lasting 148 seconds took
place from mobile number 9893943215 (used by Neemabai) to mobile
number 9827424539 (used by accused Bunty). This fact strengthens the
credibility of Neemabai's statement that she had spoken with accused
Bunty.
31. Regarding the alleged contradiction in the statements of Jeerabai
alias Bhooribai (P.W.-01) concerning accused Rajju, between her court
testimony and the statements recorded during the merg inquiry (Ex.D-1)
and investigation (Ex.D-2), it appears that Ex.D-1 mentions that Bunty
alone took Govind with him. However, in Ex.D-2 recorded during
investigation, it is stated that accused Bunty, along with his associate
Rajju took her husband. Therefore, when the court testimony and Ex.D-
2 are considered together, it becomes clear that both accused Bunty and
Rajju took Govind with them. Hence, the contradiction appears only in
the merg statement and not in the investigation statement.
32. From the testimony of Sitabai (P.W.-02), it is confirmed that her
father Govind was taken by accused Bunty and Rajju and thereafter he
did not return home. Although contradictions were pointed out in her
court testimony and statements recorded during merg and investigation
(Ex.D-3 and Ex.D-4) concerning accused Rajju.
33. From the testimony of Kaushal Singh (P.W.-12), the Investigating
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Officer, it appears that based on the information given by accused
Bunty, an amount of fifty thousand rupees and a Spice company mobile
phone with Airtel SIM number 9893515655 were seized from him.
From accused Rajju alias Anand Prajapati, a Micromax double SIM
mobile phone containing an Idea SIM number 8966038288 was seized
along with eighteen thousand rupees in cash. From accused Kamlesh, a
double SIM mobile phone containing Idea SIM number 9977618433
was seized.
34. In this case, the CDR (Call Detail Records) and CAF (Customer
Application Form) of mobile numbers 9977618433 and 7354740024
(used by accused Kamlesh Kirar), 9893515655 and 9827424539 (used
by accused Bunty alias Banshi Prajapati) and 8966038288 (used by
accused Rajju alias Anand Prajapati) were obtained from the Cyber Cell.
These records show that before and after the incident there were
conversations among them. Similarly, on 07th March 2013, a
conversation was found between Bunty's mobile number 9827424539
and Neemabai's mobile number 9893943215. These facts are confirmed
by documents Ex.P-61 to Ex.P-82. No explanation was given by accused
Bunty regarding the source of the fifty thousand rupees seized from him.
Likewise, accused Rajju alias Anand Prajapati did not provide any
explanation regarding the eighteen thousand rupees found in his
possession. It is also noteworthy that the iron rod used in committing the
offence was seized from accused Rajju alias Anand Prajapati and as per
the FSL report, human blood was found on the said iron rod.
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35. The main argument advanced on behalf of the appellants was that
Dr. Vinay Thakur (P.W.-09) stated in his examination that the death of
the deceased appeared to have occurred within 24 hours prior to the
post-mortem examination. However, according to Jeerabai alias
Bhooribai (P.W.-01) and other witnesses, the deceased was last seen
with accused Bunty and Rajju on 04.03.2013, therefore, it was argued
that the prosecution case becomes doubtful because the medical
evidence does not correlate with the date 04.03.2013. The argument
raised on behalf of the appellants is not acceptable because it is also
worth mentioning here that the post-mortem examination of the
deceased was conducted by Dr. Vinay Thakur (PW-9) on 06.03.2013 at
01:30 p.m. The opinion regarding the time of death indicates that the
deceased died on 05.03.2013. The evidence further shows that the
deceased was taken away by Bunty and Rajju on 04.03.2013 at about
04:00 p.m., and that the death of the deceased occurred within 24 hours.
36. Dr. Vinay Thakur (P.W.-09) merely gave an opinion that the death
of deceased appeared to have occurred within 24 hours prior to the post-
mortem, he did not state it conclusively. It can also be inferred that the
death might have occurred earlier. It is pertinent to mention that the
body of the deceased was severely mutilated with multiple fractures,
broken bones, several lacerated wounds and abrasions. The head, both
upper limbs and the lower halves of both legs were severed from the
body. No part of the brain was found inside the skull. In such
circumstances, the time of death can only be estimated approximately
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and cannot be stated with certainty. In this regard, the principle laid
down by the Hon'ble Supreme Court in the case of State of Haryana Vs.
Bhagirath and others; (1999) 5 SCC 196 is important. Additionally, it is
noteworthy that the accused had taken the deceased on 04.03.2013 at
about 4:00 PM. From the testimony of R.K. Bharti (P.W.-14), it appears
that on 05.03.2013, while he was posted as Assistant Station Master at
Kareli Railway Station from 4:00 PM to 12:00 midnight, he received
information from the driver of the Katni-Bhusawal Passenger train that
the dead body of an unidentified person was lying there. Thus, it appears
that the deceased was taken by the accused on 04.03.2013 at about 4:00
PM and his death was caused on 05.03.2013.
37. The Hon'ble Supreme Court in case of Murugan V. State of Tamil
Nadu, (2018) 16 SCC 96 has held as under: -
"32. A theory of "accused last seen in the
company of deceased" is a strong circumstances
against the accused while appreciating the
circumstantial evidence. In such cases, unless the
accused is able to explain properly the material
circumstances appearing against him, he can be
held guilty for commission of offence for which he
is charged. In this case, it was rightly held by the
two court below against the appellant and we find
no good ground to disturb this finding."
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38. If the above law is considered in this case, then it is clear that
the accused Bunty and Rajju had taken the deceased Govind Patel with
them from the deceased's house on 04.03.2013 and after that the
deceased Govind did not return home and only his dead body was
found. No explanation has been given by the accused persons as to how
and under what circumstances the deceased Govind died. This leads to
the conclusion that the deceased Govind was murdered by the accused
Bunty and Rajju.
39. From the testimony of Jeerabai @ Bhooribai (PW-1), it is evident
that in the year 2013 a quarrel had taken place between the accused
Kamlesh Patel and her husband Govind. At that time, the accused
Kamlesh Patel had threatened that he would kill her husband, and a
report in this regard was lodged by her at Police Station Tendukheda.
Although this fact is not mentioned verbatim in the statements recorded
during the inquest and investigation, a perusal of Exhibit D-1 reveals
that it also contains a similar statement. In the said statement, it is
mentioned that Kamlesh Kirar of her village and his father Nanheveer
had enmity with her husband, and that after consuming alcohol Kamlesh
used to say that he would kill Govind. A similar statement was also
recorded during the investigation, which is Ex.D-2.
40. Further, it has come on record that in the previous year her
husband had beaten Kamlesh and on the following day, i.e. on
03.09.2012, she had submitted a written complaint against Kamlesh.
Kamlesh Patel and his father used to threaten that they would kill her
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husband Govind. Therefore, when the aforesaid facts are considered in
their entirety, the statement made by Jeerabai alias Bhooribai (PW-1)
during her examination-in-chief that accused Kamlesh used to threaten
to kill her husband cannot be disbelieved. The contradictions pointed out
by the defence on this aspect are insignificant. In fact, when the
evidence is appreciated as a whole, no material contradiction emerges,
as it is not possible for a witness to reproduce a statement word-for-word
after a lapse of three years in the same manner as it was stated
immediately after the incident.
41. Furthermore, as established from the testimony of Kaushal Singh
(PW-12), the Call Detail Records (CDRs) and CAF forms were obtained
from the Cyber Cell in respect of mobile numbers 9977618433 and
7354740024 belonging to accused Kamlesh Kirar, mobile numbers
9893515655 and 9827424539 belonging to accused Bunty @ Banshi
Prajapati and mobile number 8966038288 belonging to accused Rajju @
Anand Prajapati. These records reveal that conversations had taken
place among the accused persons both prior to and after the incident.
Significantly, this fact remained unchallenged during the cross-
examination of Kaushal Singh (PW-12). The same is also corroborated
by the documentary evidence on record, namely Exhibits P-54, P-58, P-
61, P-62, P-64, P-65, P-66, P-69, P-72, P-74, P-75, P-76, P-79, and P-
42. It is noteworthy to mention here that it is extremely difficult for
the prosecution to produce direct evidence to prove the existence of a
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conspiracy. Rather, conclusions can be drawn only on the basis of the
circumstances of the incidents and accused's conducts before and after
the incident.
43. The law laid down by Hon'ble Supreme Court in para 45 of the
judgment dated 02.08.2017 passed in Rajiv Kumar v. State of U.P. and
another; (2017) 8 SCC 791, held as under:-
"45. The essential ingredients of the offence of criminal
conspiracy are: (i) an agreement between two or more
persons; (ii) the agreement must relate to doing or causing to
be done either (a) an illegal act; or (b) an act which is not
illegal in itself but is done by illegal means. It is, therefore,
plain that meeting of minds of two or more persons for doing
or causing to be done an illegal act or an act by illegal means
is sine qua non of criminal conspiracy. It is extremely difficult
to adduce direct evidence to prove conspiracy. Existence of
conspiracy and its objective can be inferred from the
surrounding circumstances and the conduct of the accused. In
some cases, indulgence in the illegal act or legal act by illegal
means may be inferred from the knowledge itself."
44. Thus, from the cumulative appreciation of the oral and
documentary evidence discussed above, the involvement of all three
accused persons in the commission of the offence stands duly proved.
45. In view of the above discussion, this Court is of the considered
opinion that the learned trial Court has properly appreciated the evidence
on record and has rightly convicted the appellants for the offences
charged against them. No illegality, perversity, or miscarriage of justice
has been shown which would justify interference with the impugned
judgment in exercise of appellate jurisdiction. The recovery of mobile
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21 CRA-2812-2022
phones, cash amounts, and the iron rod allegedly used in the
commission of the offence, coupled with the forensic report indicating
the presence of human blood on the weapon, further strengthens the
prosecution case. The call detail records also reveal telephonic
communication among the accused persons before and after the incident.
46. Accordingly, criminal appeal fails and is hereby dismissed.
47. As appellant No.3 is on bail vide order dated 27.06.2023,
therefore, he is directed to surrender forthwith before the learned trial
Court to serve out the sentence imposed upon him. His bail bonds stand
cancelled. The learned trial Court shall take appropriate steps to secure
his custody in accordance with law, if he fails to surrender before the
trial Court.
48. Record of the trial Court be sent back.
(RATNESH CHANDRA SINGH BISEN)
(VIVEK AGARWAL) JUDGE
JUDGE
sp/-
