Madhya Pradesh High Court
Shriram Kalota vs The State Of Madhya Pradesh on 20 December, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
th
ON THE 20 OF DECEMBER, 2022
CRIMINAL APPEAL No. 1841 of 2019
BETWEEN:-
JEEVAN S/O SHRI TEJRAM JATAV, AGED ABOUT 34
YEARS, NAYA BASERA, NEAR WATER TANK, GANDHI
NAGAR, INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI S.K. VYAS, SENIOR ADVOCATE WITH MS. NEHA YADAV,
ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH P.S. TIRALA , DHAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VALMIK SHAKARGAYEN, GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 4409 of 2018
BETWEEN:-
SUNITA BAI W/O SHRIRAM KALOTA, AGED ABOUT 34
YEARS, OCCUPATION: HOUSEWIFE R/O 38,
PARASRAM MARG, GANDHI NAGAR, INDORE P.S.
ARODRAM ROAD, INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ASHISH GUPTA, ADVOCATE)
AND
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 21-12-2022
13:29:39
2
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH P.S. TRILA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VALMIK SHAKARGAYEN, GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 5868 of 2018
BETWEEN:-
VIKRAM CHAUHAN S/O BADRILAL CHAUHAN, AGED
ABOUT 38 YEARS, BEHIND MARUTI NANDAN
HOSPITAL, GANDHI NAGAR, P.S. AERODROME ROAD,
INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI VARUN KULSHRESHTHA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THRU. P.S. TIRLA, DISTT. DHAR (MADHYA
PRADESH)
.....RESPONDENTS
(BY SHRI VALMIK SHAKARGAYEN, GOVERNMENT ADVOCATE)
CRIMINAL APPEAL No. 4028 of 2019
BETWEEN:-
SHRIRAM KALOTA S/O HARIRAM KALOTA, AGED ABOUT 37
1. YEARS, GRAM GARDAVAD PS TIRLA, DHAR (MADHYA
PRADESH)
MURARI @ RAHUL MORI S/O JAGDISH MORI, AGED ABOUT 30
2. YEARS, 38, PARASRAM MARG, GANDHI NAGAR, INDORE P. S.
AERODROME, DISTT INDORE (MADHYA PRADESH)
.....APPELLANT
(BY SHRI ASHISH GUPTA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE OFFICER
THR.PS. TIRLA (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI VALMIK SHAKARGAYEN, GOVERNMENT ADVOCATE)
____________________________________________________
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 21-12-2022
13:29:39
3
Reserved on : 19/09/2022
Pronounced on : 20/12/2022
____________________________________________________
These appeals having been heard and reserved for judgement
coming on for pronouncement this day, Hon'ble Shri Justice Subodh
Abhyankar delivered the following:
JUDGMENT
1] This judgement shall also govern the disposal of Criminal Appeal No.1841/2019, filed on behalf of appellant Jeevan Jatav, Criminal Appeal No.4409/2018 filed on behalf of appellant Sunitabai, Criminal Appeal No.5868/2018 filed on behalf of appellant Vikram Chauhan and Criminal Appeal No.4028/2019 filed on behalf of appellant Shriram Kalota and Murari @ Rahul Mori under Section 374 of Cr.P.C. as these appeals have arisen out of the common judgement dated 01/05/2018 passed in Sessions Trial No.356/2011 by the learned Additional Sessions Judge, District Dhar (M.P.) whereby learned Judge of the Trial Court has convicted the appellants as under:-
Conviction Sentence
Accused Section Act Imprisonment Fine Imprisonment in lieu
of fine
Sunita Bai and 302/120-B (two IPC Life imprisonment (two 10000/- 2 Years RI
counts) counts) each
Shriram Kalota
364/120-B IPC 10-10 years RI 5000/- 1 Year RI
(two counts) (two counts) each
201/120-B (two IPC 5-5 years RI 1000/- 6 Months RI
counts) (two counts) each
Murari @ Rahul 302 IPC Life imprisonment (two 10000/- 2 Years RI
(two counts) counts) each
Mori,
364 IPC 10-10 years RI 5000/- 1 Year RI
Vikram Chauhan (two counts) (two counts) each
201 IPC 5-5 years RI 1000/- 6 Months RI
and (two counts) (two counts) each
Jeevan Jatav
The sentence to run consequently as it is a case of double murder.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 42] In brief, the facts giving rise to the present appeals are that on 20.05.2011, a missing person report, Ex.P/12 was lodged at police station Tirla, District-Dhar, on the basis of which, the FIR was registered on 02.06.2011. In the missing person report, it was informed by the complainant Jagdish, S/o Ranchhod Patidar that his younger brother Yashwant Patidar and his wife Gajrabai who were around 35-40 years old, left from the village Gardawad to Dhar on 18.05.2011 at around 10 o'clock in the morning however, they never came back. In the FIR dated 02.06.2011, it is mentioned that in the enquiry in respect of the missing person report, it was found that Yashwant Patidar, the missing person had given a sum of Rs.30-40 lakhs to his friend Shriram Kalota, appellant No.1 in Criminal Appeal No.4028/2019 to purchase the land of one Santosh Dhobi but Shriram Kalota did not pay the aforesaid amount to Santosh Dhobi and defrauded Yashwant Patidar of the aforesaid sum by utilising the same but when the deceased Yashwant repeatedly asked Shriram Kalota to get the registration of the land done, Shriram Kalota, in conspiracy with other co-accused persons got the deceased Yashwant and his wife Gajrabai abducted, and other accused persons committed their murder and also burnt their bodies to destroy the evidence. It is alleged that appellant no.1 Shriram Kalota's brother-in-law appellant no.2 Rahul Mori in Cr.A.No.4028/2019 had taken the contract of killing Yashwant and his wife Gajrabai for a sum of Rs.5 lakhs which was subsequently increased to Rs.10 lakhs and it was agreed that Rahul would abduct the couple, murder them and would destroy their bodies. And, in pursuance thereof, on 18.05.2011, Shriram Kalota asked Yashwant and Gajrabai to go to Indore and meet his brother-in-law Rahul to get the registration of the documents done. As per this conspiracy, deceased Yashwant along with his wife Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 5 Gajrabai went on a motorcycle from village Gardawad to Dhar and from Dhar, they boarded a bus for Gangwal bus stand, Indore where they reached at around 11 o'clock. On the bus stand, A-Rahul More, A-Vikram Kalota and A-Jeevan Jatav met them with the deceased Yashwant's Santro car bearing registration No.MP-09-CG-0556, which was earlier brought to Indore on 17.05.2011 as planned by Shriram Kalota with the help of Kalu Sarpanch (acquitted accused) and his younger brother Arjun (acquitted accused) to Rahul Mori's house at Indore. From Gangwal bus stand, Rahul More along with his friend Vikram and Jeevan took Yashwant and Gajrabai in their Santro car to forest near Bijasan Tekri where both these persons were murdered by strangulation by belts and with stones and thereafter, both the bodies were taken to the forest of Nasrullaganj, district- Sehore where they were also burnt in order to destroy the evidence. However, on 19.05.2011, two unidentified half burnt bodies were recovered from the jurisdiction of police station Nasrullaganj and after the bodies were identified, the investigation ensued, the FIR was lodged and thereafter charge-sheet was filed against the appellants Sunitabai, Vikram, Jeevan, Shriram and Murari @ Rahul Mori as also against Bhagirath, Arjunsingh and Hariram, the acquitted co-accused persons under Section 364, 302, 201, 120-B and 34 of IPC. The case was committed to the Trial Court who, after recording the evidence has acquitted co-accused persons as aforesaid but convicted the appellants as aforesaid. Hence, these appeals.
3] Learned counsel appearing for the appellants have submitted that it is purely a case of circumstantial evidence and the prosecution has miserably failed to prove its case beyond reasonable doubt and to connect all the dots to bring home the charge of murder. It is submitted that a story Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 6 has been concocted only with a view to falsely implicate the appellants and to grab their property. The attention of this Court has been drawn to Ex.P/12, missing person report which was lodged on 20.05.2011 as also the Dehati Nalishi Ex.P/1 which was lodged by police station Nasrullaganj at Ramesh Bagwani's field on 19.05.2011, as it was informed that two persons, a man and a woman were found dead and were half burnt. The attention of the Court has also been drawn to the FIR Ex.P/88 which was lodged on 02.06.2011 against all the accuse persons, viz., Shriram Kalota S/o Hariram Kalota, R/o Gardawad, Rahul @ Murari S/o Jagdish Mori, R/o Indore, Vikram S/o Badrilal Chauhan, R/o Indore, Jeevan S/o Tejram Jatav, R/o Indore, Kalu @ Bhagirath, S/o Ganpat Bheel, R/o Gardawad and Arjun, S/o Hariram Kalota, R/o Dhar in which the story of prosecution appeared for the first time of the conspiracy hatched by Shriram Kalota along with other co-accused persons to commit murder of the deceased persons.
4] Counsel have further submitted that in the FIR, it has been stated that the FIR is clearly anti-dated as till that 02.06.2011, when the FIR was registered, there was absolutely no material available on record with the prosecution to connect the appellants with the offence. It is submitted that the FIR has been lodged by Shankarlal Kharadi, PW/45, who has died during the trial only and could not be cross examined by the defence and thus no credence can be attached to his statement.
5] Counsel for the appellants have submitted that while the missing person report Ex.P/12 was still pending investigation, the statements u/s.161 of Cr.P.C., of only two witnesses, viz., Satish Patidar Ex.D/2 and Jeevan Ex.D/12 were recorded. It is submitted that till 02/06/2011, there Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 7 was absolutely no material on record to lodge the FIR, in which the entire story of the prosecution has been narrated.
6] Shri S.K.Vyas, learned senior counsel appearing for appellant Jeevan has submitted that it is a case where the FIR has been registered by the prosecution with oblique motives and thereafter the entire investigation has been conducted in such a manner to make the contents of the FIR as true and depicting the real prosecution story. It is further submitted that till the FIR was lodged on 02/06/2011, no telephone operator company was asked to provide the call details or location of the appellants and it was asked for the first time only on 28/08/2011.
7] So far as appellant Sunitabai is concerned, it is submitted that there is absolutely no evidence on record to connect the her with the offence and she has been falsely implicated in the case only because she happens to be the wife of appellant Shriram Kalota. It is further submitted that so far as the recovery effected by appellant Sunita bai is concerned, it is only a sum of Rs.10,000/- vide Ex.P/79 on 13/06/2011 which cannot be said to be an amount which the appellant had obtained by entering into the conspiracy to murder two people specially when it is alleged that the original conspiracy was between appellant Shriram and appellant Rahul for consideration of Rs.10 Lakhs. It is also submitted that as per the seizure memo dated 07/06/2011 Ex.P/76, the appellant Sunitabai took the ear rings of deceased Gajrabai and if this was the reason for committing the murder of Gajrabai then there is no reason to accused persons to leave behind 42 gold beads on the dead body itself, which were seized by police station Narsullaganj on 19/05/2011, vide Ex.P/2 along with Paijap, Bichhudi, Ring as per Ex.P/22. Thus, it is submitted that the chain of circumstances is not complete against Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 8 the appellant Sunitabai and the learned Judge of the trial Court has erred in convicting the appellants in connection with the aforesaid offence. 8] It is also submitted that the ear rings seized from the appellant Jeevan ???, actually belonged to the deceased has also not been proved beyond reasonable doubt as the identification was not proper and in accordance with law which is also apparent from deposition of PW/27 Bhagirath who in para 7 has deposed that all the other articles which were mixed with the articles to be identified were brought up by police officer and there is no specification of size, shape, weight and design of the ear rings. It is also submitted that as per the seizure memo Ex.P/67 effected from accused Rahul Mori on 07/06/2011, the seizure is of triple SIM mobile phone having SIMs of Idea, Airtel and Reliance but its call details are not supported by proper certificate as provided under Section 65(B) of the Evidence Act. Thus, the call details cannot be taken into consideration as they cannot be relied upon.
9] It is further submitted by the learned counsel for the appellants that the prosecution story revolves around financial transaction which took place between the appellant Shriram and the deceased Yashwant for purchase of a land belonging to one Santosh Dhobi (Soliya) PW/34 and in this regard, a mortgage deed Ex.P/13 has been proved by the prosecution which was seized vide Ex.P/14 on 05/08/2011 by ASI K.L. Pandey and even the Trial Court, in para 58 and 61has categorically held that the aforesaid document is a suspicious document.
10] The attention of this Court has also been drawn to the deposition of PW/34 Santosh Soliya S/o Kedarsingh Soliya who is the person who was supposed to sell his land to the deceased Yashwant but he has stated that he had good relations with the deceased Yashwant who was well aware that he Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 9 (Santosh Soliya) was not going to sell his land. In para 62 of the judgement, learned Judge of the Trial Court has also give a finding that the land itself belongs to Santosh Dhobi PW/34 who had admitted in his police deposition D/13 that he did not want to give his land to the deceased Yashwant and after further appreciation of evidence, learned Judge has held in para 66 that on Ex.P/13, the mortgage deed, the deceased Yashwant's signature are forged. Counsel has submitted that the efforts have been made by the prosecution to falsely implicate the appellants only with a view to grab their properties which can also be demonstrated by the deposition of PW/4 Jagdish Patidar, the brother of the deceased who has admitted that they have already taken possession of the properties of the appellant Shriram.
11] Similarly, so far as Criminal Appeal No.4028 of 2019, which has been filed on behalf of Shriram Kalota S/o. Hariram Kalota and Murari @ Rahul Mori S/o. Jagdish Mori, it is again submitted by Shri Ashish Gupta that the entire prosecution story against them is based on an afterthought that he obtained the amount of around Rs.30-40 Lacs from the deceased Yashwant on the pretext of ensuring sale of his land by Santosh Dhobi (PW-34) to the deceased Yashwant. Whereas, Santosh Dhobi PW-34 has admitted that he did not want to sell the land to the deceased Yashwant and, on the other hand, the agreement executed between the parties in this regard has also been held by the Court to be a fake one. It is further submitted that the case of the prosecution is that to get the murders committed by the co-accused persons, appellant Shriram also gave them some money to the other appellants, but there is no such material available on record to show that any such money was actually paid by the appellant Shriram to the other accused persons.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 1012] Shri Gupta has also drawn the attention of this Court to the finding recorded by the trial Court in para 130 of the judgment wherein it is held that the prosecution has proved by leading oral evidence that the amount of around 30-40 Lakhs was given by the deceased to the appellant Shriram to purchase the land of the Santosh Dhobi and it is also held that Appellant Sunita Bai had no knowledge of the conspiracy hatched by her husband cannot be believed. Thus, it is submitted that the finding recorded is only on the basis of conjecture and surmises, and is liable to be set aside. It is further submitted that so far as the lodging of FIR Ex.P/88 is concerned, it is mentioned that it has been recorded on the basis of investigation conducted in missing person report Ex.P/12 dated 08.09.2011, whereas at the time of recording of the missing person report, the statements of only two witnesses, viz., Satish vide Ex.D/2 and Jeevan vide Ex.D/12 were recorded and as such till lodging of the FIR Ex.P/88 on 01.06.2011, there was no material available on record which could prompt the lodging of the FIR in the manner in which it has been lodged.
13] It is also submitted that the SIM Ex.P/1 to 3 was registered in the name of Jitendra Mori, which has been recovered from Murari @ Rahul, whereas Jitendra Mori has not been examined. Another SIM vide Ex.P/133 belongs to one Pawan, whereas tower location Ex.P/143 and 144 have been proved without the proper certificate being issued under Section 65-B of the Evidence Act, 1872. The certificate under Section 65-B Ex.P/111 dated 05.12.2016 has also been prepared by the witness deposing on behalf of the Telecom company and a bare perusal of the same reveals that it is also not in accordance with law. Ex.P/66 is the seizure of belt from Murari @ Rahul on 07.06.2011 and from Jeevan a belt has been recovered vide Ex.P/67, which has not been sent of DNA.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 1114] Attention of this Court was also drawn to Ex.D/11 which is a complaint by appellant Shriram on 08.08.2011 that his property is being looted by the complainant side and also about the illegal possession of his land by the said persons, as also Ex.D/12, which is the proceedings of JMFC in regard to the said complaint.
15] So far as the appellant Jeevan is concerned, Shri S. K. Vyas, Senior counsel has submitted that he has also been falsely dragged in this case and the evidence produced against him is concocted and cannot be relied upon. It is also submitted that the recovery of his Belt, Three Gold tops vide Ex.P/62 and vide Ex.P/67, three Mobile sims cannot be relied upon as they have been so seized allegedly in the presence of Pw/26 Ramesh who is a relative of the deceased. Shri Vyas has also submitted that there are material discrepancies in IMEI number allegedly belong to the appellant Jeevan Jatav as there is discrepancy in IMEI number of the seizure memo and the IMEI number of the CDR proved as Ex.P/124, 135 and 167 whereas the seizure memo is Ex.P/67.
16] It is also submitted that no reliance can be placed on the testimony of PW-44 Santosh Jadhav, the assistant Nodal Officer of Reliance Company to submit that the certificate issued by him under Section 65-B of the Evidence Act, 1872 cannot he relied upon as no due process was followed for issuance of certificate issued under Section 65-B of the Evidence Act, 1872.Attention of this court has also been drawn to para 4 and 13 of his deposition in which he has admitted that he does not know under which provision s.65B certificate is given. Similar submissions have also been made for the deposition of PW-46 Rajesh Gupta, the officer of Idea Cellular Limited, Indore who has proved the certificate issued u/s.65B, which has been issued by Ratnesh Bhargava, an employee of the said Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 12 company. Reliance has also been placed on the decision rendered by this Court in 1969 JLJ 117 delay in identifying articles 77 Weekly Note 72.
17] Shri Varun Kulshreshtha, counsel appearing for the appellant Vikram has submitted that there is absolutely no evidence against the appellant Vikram as he has also been arraigned on the basis of a memo prepared under Section 27 of the Evidence Act and he has been tried to be connected with the offence only on the basis of telephonic record as also the registration no. plate bearing no. MP-09-CG-0556 of the car of the deceased Shriram, as also a sum of Rs.10,000/- vide Ex.P/80 as the amount received towards part payment for the murder from the appellant. Shriram. Shri Kulshrshthra has also relied upon a decision rendered by the Supreme Court in (2015) 7 SCC 178 para 25 and (2020) 7 SCC 1.
18] Shri Kulshrestha has also submitted that so far as PW/26 Ramesh is concerned, who is the seizure witness, he is a relative of deceased Yashwant which has been admitted by him in para 35 of his deposition that his daughter is married to the son of Munnalal and Munnalal and the deceased Yashwant are the brothers. It is also submitted that no independent witness has been examined to prove the recoveries and the only witness who is said to have witnessed the recovery is an interested witness and cannot be relied upon for the purposes of convicting the appellants.
19] Shri Kulshsreshtha has also submitted that although the mobile SIM has been seized from the appellant but it has not been marked as Article in evidence and non production of the SIM has vitiated the entire trial, as also non production of SIM from which the call records have been extracted has made the CDR as a relevant in evidence. It is also submitted that as no Airtel SIM or Videocon SIM has been admitted in evidence as Article or Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 13 produced in the Court, hence, the resultant collection from the CDR from various service providers is inadmissible in evidence due to failure on the part of the prosecution agencies to corroborate the same with the source of electronic device. It is also submitted that so far as deposition of PW/41 Saidutt Bohre, the Nodal Officer of Airtel is concerned, it also suffers from serious infirmities inasmuch as the letter for CDR has been obtained after 5 years of incident and as per the Ex.P/111, the certificate under Section 65- B of the Evidence Act, it does not disclose as to how the CDR was stored for a duration of around one year which is in violation of government directives and even otherwise, the said witness was not authorized representative of Airtel to produce the CDR in the Court. It is also submitted that even according to the deposition of PW/41 Saidutt Bohre, IMEI number of CDR does not match with Ex.P/68 which is the recovery memo. He has also admitted that he has not filed any document to demonstrate that he is posted as Nodal Officer of the Airtel company.
20] The similar arguments have been advanced by Shri Kulshreshtha in respect of PW/47 Gopal Suryawanshi, the Nodal Officer of Airtel and PW/42 Devesh Gupta, the Nodal Officer of Videocon. The attention of this Court has also been drawn to the deposition of PW/43 Anil Bamboria who was the Accountant of Mahakal Toll Naka on 18/05/2011 and it is submitted that the information given by him vide Ex.109 that the car bearing registration No. MP09-CG-0556 had passed from the aforesaid Toll Naka, and it is submitted that the data entry of the movement of the said vehicle is a computer generated documents, hence, in the absence of certificate under Section 65-B, such document cannot be admitted in evidence. Lastly it is also submitted by Shri Kulshreshtha that admittedly it is a case of no eyewitness account, and there is material discrepancy in the Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 14 story of the prosecution and the evidence led it. In support of their submissions, counsel for the appellants have also relied upon the decision rendered by the Supreme Court in the case of Arjun Panditrao Khotkar Vs. Kailash Kushanrao Gorantyal and others reported as (2020) 7 SCC 1, State of Andhra Pradesh Vs. Punati Ramulu reported as 1993 AIR SC (2) 2644, Anis Vs. State of M.P. reported as M.P.W.N. 59 and in the case of Ravinder Singh @ Kaku Vs. State of Panjab passed by the Supreme Court in Cr.A. No.1307 of 2019 on 04/05/2022.
21] Heard learned counsel for the parties and perused the record.
22] From the record, it is apparent that the deceased Yashwant Patidar and his wife Gajrabai Patidar had met with a gruesome death after they went missing on 18/05/2011. Although, the missing person report was lodged on 20.05.2011, but prior to that, their half burnt unidentified bodies were already recovered on 19/05/2011 by police station Nasrullaganj. Their postmortem was conducted on 20/05/2011 by PW/15 Dr. Ashok Sharma, Dy. Director Medico-legal Institute, Gandhi Medial College, Bhopal. Since the deceased were not identified by that time, in the postmortem report, the Doctor has opined that the unidentified body of the deceased male(Yashwant) was in the stages of middle level decomposition and had superficial to deep burn injuries. It was also found that the signs of throttling were also present and the death was homicidal in nature. His viscera was also preserved for further analysis and DNA testing. Same was the opinion given regarding the postmortem of the deceased female (Gajrabai W/o Yashwant), in whose postmortem also, it was found that the death was on account of throttling and her body was also in the same stage of decomposition and was having the same burn effects as that of her husband Yashwant. The time of death of these two persons was said to be Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 15 between 12 to 48 hours + 12 hours. Thus, undoubtedly both the deceased viz., Yashwant and his wife Gajrabai died homicidal death.
23] The next question which falls for the consideration of this court is whether the appellants have been rightly convicted by the learned Judge of the Trial Court or the prosecution has not been able to prove its case beyond reasonable doubt as has been contended by the learned counsel for the appellants, as it is a case of circumstantial evidence and according to the learned counsel for the appellants, there are many missing links in the story of the prosecution.
24] Since it is a case of circumstantial evidence, this Court would like to divide the appreciation of evidence in two compartments; one, the evidence collected during the course of investigation which is forensic in nature, and the second compartment would be that of the other corroborative evidence connecting the appellants with the offence.
Forensic Evidence:
25] The forensic evidence would include the FSL report, DNA report and the finger print reports. The DNA report has been proved by PW/17 Dr. Anil Kumar Singh who has proved the report as Ex.P/31 for the purposes of DNA profiling. The DNA samples were obtained from the tibia bone of both the deceased persons, and from the samples provided by the donors, viz., their son Satish and their daughter Madhubala, whose DNA profiles have matched with the DNA profiles of the deceased persons. DNA profiles were also obtained from the Santro car which was used to carry the bodies of the deceased person from Indore to Nasrullaganj and from that sample, a mixed DNA profile was obtained which included the DNA profile of both the deceased and also of one other person, but to the utter Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 16 shock and surprise of this Court, the prosecution has not cared to carry out the DNA profiling of any of the accused persons so that the presence of at- least one of the accused persons could have been established beyond reasonable doubt, on the spot with the deceased persons. Thus, for the reasons best known to the investigating officer, no DNA profiling of any of the accused persons was conducted and the DNA report which has only identified the deceased persons identity, is of no help to the prosecution except for their identification.
26] It is also found that so far as the Santro Car is concerned, it has been seized from the house of appellant Shriram on 10/06/2011 vide Ex. P/72 and whereas, on 20/07/2011 i.e. after more than one month from the date of seizure of the car, the Investigating Officer PW/47 Gopal Suryawanshi found that on the back seat of the car, there were some blood like spots which were cut by him with a blade and were sent for the forensic report, and the trial Court has opined that the aforesaid blood found on the back seat of the car matched with the DNA of the deceased persons and of one other unknown person. In para 120 of its judgment, the learned Judge of the Trial Court has taken the aforesaid circumstance against the appellants holding that the blood stains found on the back seat of the car were that of the deceased persons only proved as Ex.P/31, however, in the considered opinion of this Court, the said finding is perverse for the reason that the prosecution has not produced any FSL report on record to demonstrate that the blood like stain collected from the back seat of the car was actually of blood only and not of any other liquid of the body, viz., sweat. So far as the DNA is concerned, it is common knowledge that it can be obtained from the body fluid, blood, saliva or sweat and as it is also contained in the skin cells of a person, it is normally left on the spot unknowingly by the accused Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 17 or the victims, thus, if DNA has been found from the vehicle of the deceased himself and of his wife, then it cannot be concluded that they were murdered in that car as there is no forensic report available to demonstrate that there was blood on the back seat of the car. This fact is also substantiated by the fact that what Ex.P/31 states is that the DNA samples taken from the car and not the DNA samples taken from the blood recovered from the car.
27] Now coming to the fingerprints, it is apparent that the fingerprints of all the accused persons have also been obtained vide Ex.P/32 to P/38 and P/40 to P/41. During the course of investigation, the prosecution has also found five chance finger print marks in the inner side of central glass of the Santro Car which was allegedly used to carry the bodies of both the deceased persons, but vide Ex.D/14, it has been opined that none with the chance fingerprint marks matched with the accused persons. Thus, it is apparent that the prosecution has miserably failed to collect any forensic evidence, tying any of the accused persons with the deceased persons at the scene of crime.
MOTIVE.
28] Now, so far as the other evidence collected by the prosecution to connect the appellants with the offence is concerned, it is based on a story of proposed purchase of land by deceased Yeshwant from one Santosh Dhobi (PW/34) through the appellant Shriram. To prove this motive, the prosecution has come up with an agreement to sale Ex.P/13 dated 02.04.2011 executed between the appellant Shriram, his father Hariram and his brother Arjun as party of the one part and the deceased Yashwant as the party of the second part in which it is also stated that the deceased has already given a sum of Rs.81,00,000/-to the vendors. But surprisingly, this Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 18 document has been held to be of dubious character and has not been relied upon by the trial court. Thus, the most important evidence produced by the prosecution to substantiate the motive behind the crime has been discarded by the trial court, which leaves the commission of double murder without motive.
29] Thus, in the absence of motive, a case is like a ship drifting in the ocean without a rudder, not knowing where it is going. In such circumstances, we have to scrutinize the evidence on the back drop that the motive in the present case is missing.
30] So far as the involvement of the appellant Sunita Bai in CRA No.4409/2018is concerned, it is alleged against her that she obtained various ornaments from the deceased Gajrabai on the pretext of wearing them in some marriage, but later-on she never returned the ornaments to the deceased Gajrabai and although this fact has been sought to be proved by WP/12 Madhubala, the daughter of deceased Gajrabai who has stated that she had heard this version between her mother Gajrabai and the appellant Sunitabai as she was present at that time and she has also stated that she would recognize the ornaments were obtained by appellant Sunitabai but admittedly, there is no recovery of ornaments effected from the appellant Sunita bai. In such circumstances, so far as the involvement of the appellant Sunita bai in the present case is concerned, this Court is not satisfied with the oral evidence collected by the prosecution without there being any tangible material on record to connect the appellant Sunita bai with the offence. In view of the same, giving the benefit of doubt, the conviction of appellant Sunitabai is hereby set aside and she is acquitted of the charges leveled against her.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 1931] Now it is to be seen that what evidence has been collected by the prosecution so far as the other appellants viz., A-Shriram Kalota, his brother-in-law A-Murari @ Rahul Mori in CRA No.4028/2019, appellant Vikram in CRA No.5868/2019 and appellant Jeevan in CRA No.1841/2019 are concerned, to prove its case beyond reasonable doubt.
32] The documents reveal that the prosecution story starts from 20/05/2011, when a missing person report Ex.P/12 was lodged by Jagdish Patidar, the brother of the deceased Yashwant to the effect that they were missing since 10:00 O'clock in the morning of 18/05/2011 whereas in the meantime, i.e. on 19/05/2011, their bodies were recovered at the instance of Dhoomsingh PW/1, a resident of village Gularpura, District Sehore who lodged the Dehati Nalishi/Marg vide Ex.P/1 informing the Sub Inspector Vijay Raj Singh Bais of police station Nasrullaganj that he is the Sarpanch of Gram Panchayat Gularpura and as per the information received by him, two bodies have been found in the fields of Ramesh Bagwan in a burnt condition and although in the crime detail form of the deceased Yashwant whose body was not identified by that time, no valuables have been found, however, the Naksha Panchayatnama inquest of the deceased Gajrabai proved as Ex.P/6 it has been found that both her legs, she had silver like rings put on. In the three fingers of both her legs, she had also put on the silver like Bichhiya. It was also found that below the neck of the deceased, there were 27 gold like beads lying. Both these bodied were identified by PW/3 Satish, the son of deceased Yashwant Patidar by the shoes which he was wearing and also by the piece of Sari which his mother Gajrabai was wearing. His identification took place on 02/06/2011 only, however, prior to that i.e. on 31/05/2011, the police had already searched the house of the deceased Yashwant and his safe was also opened in which the following Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 20 items were recovered: a sum of Rs.10,000/-, one golden ring, silver ear rings 12 in number and a gold necklace. The record also reveals that on 02/06/2011 itself i.e. the day when the articles recovered from the deceased were being identified by his son at Police Station Nasrullaganj, at the same time, the fingerprints of all the appellants namely Jeevan, Murari @ Rahul, Vikram, Shriram, Arjun and co-accused Bhagirath were obtained.
33] During the course of investigation, on 19/06/2011, statements of Jagdish S/o Bhuwansingh PW/14 was recorded giving the details of the transactions which took place between the deceased Yashwant and the appellant Shriram Kalota, however, this witness has turned hostile and has not supported the case of the prosecution but after he was declared hostile, on his re-examination he has admitted that the appellant Shriram Kalota, out of Rs.42 Lakhs received from deceased Yashwant, purchased a harvester machine along with one Vishnu Dangi and apart from that, a tractor and an armature has also been purchased by him and Shriram had also dug four tube-wells in his field fitted with submersible pumps and has admitted that only because Shriram did not want to return the money received by him from Yashwant, he has committed the murder of Yashwant and Gajrabai. However, he has denied that he had given any statement to police vide Ex.P/24. In his cross-examination, he has admitted that regarding the purchase of harvester, tractor, armature etc. by Shriram, he did not accompany Shriram but has heard about it. It is also found that all the accused persons were arrested by the police on 02/06/2011 itself despite the fact that by that time, there was nothing on record to suggest that the appellants herein and the other acquitted co-accused persons namely Bhagirath @ Kalusingh, Arunjsingh S/o Hariram and Hariram S/o Bapusingh Kalota were also involved in the aforesaid case. In their memos Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 21 prepared under Section 27 of the Evidence Act, the entire story of the prosecution has been narrated by the accused persons. As per the memo Ex.P/58 given by the appellant Shriram, he had obtained Rs.24 Lakhs from the deceased Yashwant Patidar to purchase a land in his name, however, he has used the same for his own purposes and had purchased a tractor, harvester and an armature which have also been recovered at his instance from his house vide Ex.P/59. As per the memo Ex.P/61 given by the co- accused appellant Rahul, he has got recovered his mobile phone, as also an invoice of tinted film purchased by him for the glasses of the Santro car has been recovered. The bill/invoice has been proved as Ex.P/44 by PW/22 Bharat Jaiswal whois the shop owner of a car accessories shop at Shastri Market, Indore, has stated that on 18/05/2011, three persons had come to his shop and had purchased black film for the car but surprisingly the prosecution has not proved the bill book which could have proved this fact beyond reasonable doubt that the tinted film was indeed purchased by the accused persons from this witness. This is despite the fact that even the bill book number has been mentioned in the memo Ex.P/44.
34] From the possession of the appellant Rahul Mori, vide Ex.P/68, the following items have been seized:-
**¼1½ ,d dkys jax dk jSxthu dk cSYV ftlesa yksgs dk cDdy yxk gS ml ij 5 fy[kk gS dherh 50 :A ¼cSYV yackbZ 18 bap pkSM+kbZ 1-4 bap½ ¼2½ ,d VwVk uksfd;k daiuh dk eksckby dkys jax dkA ¼3½ ,d fclysjh dh IykfLVd cksVy ftlesa isVªksy dh nxZa/k vk jgh gSA ¼4½ ,d fcy ikoj gkml dkj Msdksj bankSj dk fcy ftlesa okgu dza- MP09 CG 0556 esa dkyh fQYe p<+kus dk gSA ¼5½ vkjksih jkgqy dk Lo;a dk eksckby e; nks fle ds eksckby daiuh ,adj Model No.R-8 dk gksdj ftldk IMEI No.(1) 7910571301799382 (2) 910571301819388 ftlesa LekVZ dh ,d Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 22 fle ftldk ua-97700773332 rFkk nwljh fle vkbfM;k daiuh dh ua-
9826750568 gSA
¼6½ udnh :9500] 50&50 ds uksV 190A
¼7½ nks ?kM+h ,d ysMht ,d tsaV~l dkys iV~Vs dh] tsaV~l ?
kM+h VkbVu daiuh dh xksYMu jax dh Mk;y] ysMht ?kMh lk-
sukVk daiuh dh xksYMu jax dk Mk;y dk gksdj vkjksih ds is'k djus ij tIr dh A uksV% vkjksih us csYV [kwaVh ij ls mrkjdj] IykfLVd ckVy iyax ds uhps ls] ?kfM;ka rFkk iSls] uksfd;k Qksu xksnjst vyekjh ls] Lo;a dk ek- sckby rFkk fcy [kwaVs ij Vaxh FkSyh ls fudkydj is'k fd;k] ftls fof/kor tIr fd;kA** 35] Vide Ex.P/67, from the possession of appellant Jeevan, the following items have been seized:-
**¼1½ ,d csYV dkys jax dk jsxthu dk ftlesa yksgs dk lqugjs jax dk cDdy yxk gSA cDdy ij ESK fy[kk gSA ftldh yackbZ 38-6 bap pkSM+kbZ1-4 bap gSA ¼2½ ,d tksM+ lksus ds VkIl ikuuqek ftlds ihNs yky jax dh L;kgh yxh gS bLrsekyhA ¼3½ ,d eksckby ftlds mij KENRINDA, A2 fy[kk gS rhu fle okyk ftlds IMEI no.1-354238043174117, no.2-354238043245511, No.3-354238043316916 gksdj bafM;k dh fle ua-8959513876] ,;jVsy dh fle ua-8349325325] fj;k;al dh fle ua-9098213173 dks fof/kor tIr fd;kA** 36] From the possession of appellant Vikram Chauhan, vide Ex.P/68, the following items have been seized:-
**¼1½ lsUVªks dkj dh ua- IysV dza- MP09 CG 0556 dze'k% vkxs vkSj ihNs dh nksuksA ¼2½ vkjksih dk Lo;a dk eksckby Qksu Spice daiuh dk ekWMy ua-,e 5161 ,u ftlesa IMEI (1)910578505553036, (2) 910578505553044 ftldh fle ua-1 ,;jVsy dh ua-9893010414 nwljh ohfM;ksdkWu dh ua-9074463173 gSA** 37] All these articles have been seized on 07/06/2011 only. Appellant Shriram Kalota had given his memo under Section 27 of the Evidence Act Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 23 on 10/06/2011 that the car which belongs to the deceased Yashwant and which was given by him to his brother-in-law Rahul, is parked in his house which can be recovered. The other acquitted persons namely Arjun Kalota S/o Hariram Kalota and Bhagirath @ Kalusingh S/o Ganpatsingh have been assigned the role that they obtained the vehicle Santro Car from the appellant Shriram at village Gardavad and delivered the same to the appellant Rahul at Indore. Vide Ex.P/72, the car has been seized from the house of appellant Shriram as also a dual SIM mobile. It is also noted in the said memo that both the number plates of the car, the front and back, are removed and are missing. It is also pertinent to mention here that all these documents have been proved by witness PW/26 Ramesh who happens to be a relative of deceased Yashwant as has already been pointed out above. Vide Ex.P/70, two diaries have also been recovered at the instance of appellant Rahul which according to him belonged to the deceased Yashwant as also a sum of Rs.10,000/-. Rs.10,000/- each have also been recovered at the instance of appellant Jeevan and appellant Vikram vide Ex.P/79 and P/80. Vide Ex.P/81, the back seat of the car rexine has been seized which is said to be stained with blood like spot which is also recorded in the statement of PW/23 Vishnuprasad S/o Ambaram Dangi but he has not supported the case of the prosecution and has been declared as hostile. Even in his reexamination, he has not supported the case of the prosecution and has stated that he had purchased the harvester machine on his own and Shriram had not given him any amount and he (Shriram) did not obtain Rs.5 Lakh from deceased Yashwant Patidar and gave it to.
38] The FIR in the present case came to be lodged only on 02/06/2011, against 6 accused persons including the present appellants Shriram, Murari Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 24 @ Rahul, Vikram and Jeevan and additionally the other accused persons, viz., Kalu S/o Ganpat, Arjun S/o Hariram were also made an accused who have already been acquitted, whereas the name of appellant Sunitabai was added during the course of investigation. The FIR has been lodged by Shankarlal Kharadi, a police officer of police station Tirla. The delay in lodging the FIR is said to be on account of the inquiry in respect of the missing person report No.8 of 2011 dated 18.05.2011. Unfortunately, Shankarlal Kharadi has died during the course of investigation and was not available to the defence for his cross examination. In the FIR Ex.P/88, the entire prosecution story has been narrated. It is stated that Yashwant Patidar had given a sum of Rs.30-40 Lakhs to his friends appellant Shriram Kalota to purchase the land of Santosh Dhobi (Pw/34), however, instead of purchasing the land for the deceased, appellant Shriram Kalota used the aforesaid amount on his own and defalcated the same and as the deceased Yashwant was pressurizing the appellant Shriram to register the sale deed that is why the appellant Shriram with a view to murder Yashwant and his wife Gajrabai who was privy to their transaction, hatched the conspiracy to commit their murder and to burn their bodies with a view to destroy the evidence and this purpose, he also included his brother-in-law Rahul Mori for a sum of Rs.5 Lakhs and subsequently it was increased to Rs.10 Lakhs. Thus, Rahul along with his other two friends Vikram and Jeevan, abducted and committed the murder of Yashwant and his wife Gajrabai. According to their plan, on 18/05/2011, appellant Shriram Kalota asked Yashwant and his wife Gajra to go to Indore where brother-in-law Rahul Mori would meet them and would get the registry done, and as per this plan, when the deceased Yashwant reached Indore along with his wife Gajrabai. Yashwant started at around 9:00 O'clock from his village Gardavad on his Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 25 motorcycle and went to Dhar to catch a bus and from Dhar he reached Gangwal Bus Stand, Indore at around 11:00 O'clock in the morning where he was met with appellants Rahul Mori, Shriram Kalota and Jeevan Jatav who were present there along with Santro Car of Yashwant baring registration No.MP09-CG-0556. It is also stated that the aforesaid car was taken to Indore a day prior i.e. on 17/05/2011 as per the plan made by appellant Shriram Kalota who asked his another accomplice Kalu (acquitted), the younger brother Arjun(acquitted) to take the car to Rahul Mori. When Rahul met the deceased Yashwant and his wife Gajrabai along with his two friends viz., appellants Vikram and Jeevan, they took them to near the forest of Bijasan Tekri where Yashwant and his wife Gajrabai were done to death by strangulation and by stone injuries and from there, in the Santro Car, they were taken to Nasrullaganj where their bodies were dumped and burnt which were found only on 19/05/2011 by the police Nasrullaganj.
39] Lodging of this FIR on 02/06/2011 is really surprising for the reason that by that time, the only thing that had happened regarding this entire episode of murder of two person was that the son of the deceased Pw/13 Satish had identified his father and mother only on 02/06/2011 and prior to that his statement Ex.D/2 was recorded on 20.05.2011, in which he has stated that he did call the appellant Shriram and told him that his parents have not come back from Indore since yesterday to which Shriram told him that they would come soon. Pw/3 Satish's second statement u/s.161, D/3 was recorded on 02.06.2011 in which he has narrated the entire prosecution story as mentioned in the FIR, naming each of the accused with their respective overt act and in his deposition he has stated that he came to know about the prosecution story through the villagers. u/s.161 of Cr.P.C.Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 26
but what was the source of the prosecution story has remained a mystery throughout the trial as there was no occasion for any person to know any more details of the incident on 02/06/2011 then the police.
40] It is also an admitted fact that till 02/06/2011, no telephonic record/conversation was brought on record to connect all these appellants with the offence.
41] It is also found that vide Ex.P/89, the belts which were sized from appellant Jeevan and appellant Rahul were sent to Medical Officer, Nasrullagaj, Sehore and to Dr. Ashok Sharma, MLI, Bhopal for their opinion if with the aid of these belts, the deceased persons can be throttled, to which, it has been opined by the Medical Officer, CSC Nasrullaganj that from the belt such injuries can be inflicted. It is also surprising to note that both these belts which were allegedly used by the appellants Jeevan and Rahul to strangulate the deceased persons were not sent to any forensic examination and there is no DNA report on record which could suggest that the deceased persons were strangulated by use of these belts.
42] So far as PW/3 Satish Patidar is concerned, who is the son of deceased, as already observed, although his two statements were recorded under Section 161 of Cr.P.C., viz., D-2 dated 20/05/2011 and D-3 dated 02/06/2011, there is material improvement in his second statement as in the first statement recorded on 20/05/2011, there is no whisper of suspicion whereas in his statement dated 02/06/2011, the entire story of the prosecution as has been narrated in the FIR has been reproduced by him. In his statement dated 02/06/2011, he has stated that when they discussed the matter with the family members, at that time, he came to know that there was an agreement to purchase a land between his father and Shriram Kalota for purchase of a land of Santosh Dhobi and for this purpose, Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 27 Shriram Kalota was also given a sum of Rs.30-40 Lakhs by his father. PW/3 Satish Patidar has been cross examined extensively and has admitted that he had recognized his mother's tops, pearls, ladies watch and his father's mobile phone and watch and has, vide Ex.D/1 and D/27, the 27 gold pearls identified in the Tehsil office vide Ex.P/11. In para 27 of his cross examination, he has admitted that in Ex.D/2 he did not inform the police that his mother had given all her jewellery to appellant Sunitabai, the wife of appellant Shriram Kalota. He has also admitted that he did not inform the police while giving the statement Ex.D/2 that Shriram Kalota had kept Rs.30-40 Lakhs to himself instead of getting the registry done. He has admitted that in Ex.D/2 and D/3, he has not informed the police that the articles ear rings, Mangal sutra, watches and mobile were of particular make or style but has stated that the different items of similar nature were kept on display at the time of identification from which he had identified the articles belonging to his parents. One important aspect of the cross examination is that he had gone Nasrullaganj to identify the body on 02/06/2011 and has admitted that they had stayed at Nasrullaganj up to 4- 4:30 and came back to Gadrawad in the same night at 11:00 pm, thus, by this cross examination, his statement recorded on 02/06/2011 in the police station Tirla has been doubted.
43] Similarly, PW/4 Jagdish Patidar who happens to be the brother of the deceased Yashwant Patidar has also stated that when his brother and his wife did not come on 08/05/2011, at that time, Yashwant's son Satish came to him and informed that his mother and father had not returned, and then they inquired about them from their relatives and subsequently lodged the missing person report on 20/05/2011 vide Ex.P/12. He has also stated that a couple of days after that, he came to know that his brother Yashwant had Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 28 given Rs.30-40 Lakhs to Shriram Kalota to purchase the land of Santosh Dhobi but instead of giving the amount to Santosh Dhobi, the amount was utilized by Shriram Kalota and only with a view to ensure that the amount should not be returned to Yashwant, hatched a conspiracy against Yashwant and his wife and gave a contract to murder them to Rahul, his brother in law who in turn was also helped by Jeevan Jatav and Vikram Kalota. According to Pw/4 Jagdish, the entire village was talking about this conspiracy. He has also stated that after his brother and his wife were murdered, their daughter Madhubala PW/12 came to him along with an agreement which was given by him to the police and the police had kept a photocopy of the same and returned the original to him same, which is proved as Ex.P/13. Regarding the aforesaid document Ex.P/13 as has already been held, the Trial Court has serious doubt about the authenticity of the same and thus, no further importance can be attached to the same. This witness PW/4 Jagdish Patidar has been cross examined to dilute his testimony on the line that he did not inform the police as to what color's cloths the deceased were wearing at the time when they left the house and that he did not give the mobile number of Yashwant to the police. In his cross examination, in para 33, he has also been suggested that when the accused persons were on police remand, at that time the said agreement Ex.P/13 was prepared and in para 34, he has admitted that he has taken possession of the land of the appellants but has denied that only with a view to falsely implicate the appellant Shriram and to grab his land, the appellants have been falsely implicated in the case. He has also denied that his brother Yashwant did not give any amount to Shriram Kalota to purchase the land of Santosh Dhobi.Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 29
44] PW/5 Kamal Kumar Patidar who happens to be the brother of deceased Gajrabai. He has also reiterated the statements given by Jagdish Patidar and has also stated that he had also given Rs.3 Lakhs to Shriram Kalota at the instance of deceased Yashwant. Although no record of the same has been kept by him. He has denied that he did not give Rs.3 lakhs to Shriram and only because being the brother of deceased Gajrabai, he is giving false evidence against the appellants to falsely implicate them. 45] Similar statement has also been given by PW-6 Krishna Patidar who is the cousin of the deceased Yashwant being the son of his father's younger brother and who had also given Rs.1 lakh to the appellant Shriram at the instance of deceased Yashwant towards purchase the land of Santosh Dhobi but in his cross examination he has accepted that he did not asked for any receipt of the same from appellant Shriram Kalota 46] PW-7 Satyanarayan is the uncle of deceased Yashwant Patidar. He has stated that Yashwant had asked for Rs.2 lakhs from him and for which, Shriram had come and at that time, he had also called Yashwant regarding payment of the aforesaid sum to Shriram, to which, Yashwant told him to give this amount to Shriram. He has also admitted that there is no record available with him that he had given Rs.2 lakhs to Shriram. 47] PW-8 Munnalal Patidar happens to be the elder brother of Yashwant. He has also stated that Yashwant informed him that on 16.12.2010, he entered into an agreement with Santosh Dhobi for the purchase of the land. He has also admitted that there is no record with him that he had given Rs.2 lakhs to Shriram. In Para 14, he has admitted that after the appellants were arrested by the police, they (complainant party) had taken possession of the land of the accused persons. He has also Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 30 admitted that they have already reaped wheat the pulses crop of the accused persons.
48] PW-12 Madhubala, the daughter of the deceased persons has also stated that appellant Sunita used to tie rakhi to her father and she has also seen that appellant Sunita had borrowed jewellery from her mother and on her asking, her mother had also given her jewellery to Sunitabai but she did not return the same. Although she has stated that she can identify the jewellery but admittedly, no such jewellery has been recovered at the instance of Sunitabai as already discussed above. She has also stated that when her parents did not return, she also called Shriram Kalota so that she can talk to her parents but Shriram Kalota told her that he would ensure her conversation with her parents after he reaches home but subsequently, she came to know that Shriram Kalota has conspired for the murder of her parents. She has admitted that vide Ex.P/11, she had identified the watches, tops and mobile phone of her father and the golden pearl of her mother. In her entire deposition, she is silent about the agreement which according to her uncle Jagdish was given to him by this witness.
49] PW-14 Jagdish Panwar is a resident of Gram-Tirla and has also reiterated the prosecution story and has stated that appellant Shriram Kalota was arranging the sale of land by Santosh to Yashwant and as some dispute arose between them, Yashwant was murdered in this transaction. This witness has admitted that appellant Shriram Kalota had purchased a harvester machine in partnership with Vishnu Dangi. He has also stated that Shriram Kalota had also purchased a tractor and an armature and also that Shriram Kalota has dug four tubewells in his field and fitted them with submersible pumps. In his re-examination, he has also submitted that only to ensure that Shriram should not return the money to Yashwant Patidar Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 31 that he conspired to murder Yashwant along with his wife Gajrabai. 50] PW-18 Vijay Singh is the Assistant Sub-Inspector of Police Station, Nasrullaganj, Sehore. He has prepared Naksha Panchayatnama and has also taken certain photographs of the burnt bodies of the deceased persons and has also seized from the spot various articles vide Ex.P/2. 51] PW/21 Satyanarayan S/o Poonamchand is a chance witness. He has stated that he know Rahul Kalota as also Yashwant Patidar and on 18/05/2011 when he was going on his motorcycle to Indore, at around 10:15 am, when he was filling petrol at petrol pump near Aerodrum, he saw Rahul Kalota driving a Santro car and was accompanied by two other persons to whom he does not know. He has also mentioned the registration number of the car being MP09-CG-0556, and he had also asked Rahul that this vehicle belongs to Yashwant Patidar, to which Rahul told him that since Yashwant Patidar is coming for registration of the land, hence, he is going to bring him from Gangwal Bus Stand. Although in his cross examination, his memory has been tested by putting various questions including the date of birth of his children as also the registration number of other vehicles of his near and dear ones to which he has not been able to recall. Counsel for the appellant has submitted that this witness is a staged witness and cannot be relied upon and otherwise also, there was no reason for him to come to Airport road, Indore if he was going from village Ingoriya to Indore. In para 18 of this witness, he has advised that the color of Santro car was gray, it had no wheel caps and also that it had no black films on its glasses. He has also stated that he came to know that Gajrabai and Yashwant are missing after around 2-3 days from 18/05/2011 and he had also informed Gajrabai's brother Vimal that he had seen Yashwant's car with appellant Rahul on 18/05/2011 and Vimal had subsequently gave Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 32 this information to the police. On perusal of the Vimal's statement, it is found that Vimal has given no such information to the police that he was informed by this witness PW/21 Satyanarayan.
52] PW/34 Santosh Soliya (Dhobi) is yet another important witness. It is his land which was about to be purchased by the deceased Yashwant through Shriram Kalota as according to the prosecution, he did not want to sale his land to Yashwant so Yashwant asked Shriram to mediate, however, in his examination-in-chief, he has stated that he has given his land to Shriram on sharing basis @ Rs.80 Thousand per annum per 5 Bigha land, however, in his cross examination, he has admitted that he had good relations with Yashwant also and has also stated that Yashwant knew it very well that he (Santosh) was not going to sell his land.
53] The prosecution has also examined PW/23 Vishnu Dangi, the person who had purchased harvester machine and in his deposition, he has clearly stated that the harvester was purchased by him for a consideration of Rs.15.40 Lakhs, and in his cross examination, he has clearly stated that he did not purchased the said harvester in partnership with Shriram Kalota and has denied Shriram Kalota had obtained Rs.5 Lakh from Yashwant Patidar and gave it to him and thereafter he purchased the harvester for a consideration of Rs.15 Lakh from Panjab. Thus, this witness has clearly belied the story of the prosecution that Shriram Kalota had purchased the harvester in partnership with Vishnu Dangi.
54] PW-31 Rakesh S/o Jaychandra is yet another witness from village. He has deposed that he had borrowed a sum of Rs. 6 Lakhs from the deceased Yashwant and when he went back to return the amount to Yashwant to his house, he found that Shriram was also sitting there and when he gave the amount to Yashwant, Yashwant gave this amount to Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 33 Shriram. He has also admitted that there is no written record of this transaction but he had obtained the amount from Yashwant and when he gave back this amount to Yashwant, there was no receipt obtained by him. He has denied that he did not receive Rs.6.5 Lakhs from deceased Yashwant and also that he did not return the same to Yashwant. 55] PW-25 Jeewan Choudhary is the Mechanic and he has stated that in the morning of 18.05.2011 at around 9 a.m., deceased Yashwant had come to his shop along with his wife Gajrabai and had kept an empty gas cylinder in his garage and thereafter he had dropped Yashwant and his wife at Gohra Chaupati bus stand as Yashwant had given his motorcycle to him for servicing. He has also stated that Yashwant had also taken his mobile number and informed that he would be back by 4 o'clock and he would call him so that he can come to bring him from bus stand. However, they did not come up till 4 o'clock and when he called Yashwant, he also did not pick his phone and subsequently, his mobile phone was also switched off. From the deposition of this witness, it is apparent that at the time when the deceased left his village, he was certainly having a mobile phone in his possession.
56] PW-26 Ramesh S/o Poonaji is an important witness. He is the witness to various seizure memos. According to him, various articles were got recovered by the accused persons in his presence only including the seizure memos P/54 given by appellant Jeevan, P/55, a memo given by appellant Vikram and P/58 and P/59 by Shriram. Apellant Rahul got recovered a plastic bottle, two Sonata watches, one broken mobile and a bill of black film purchased for the Santro car. These memos have already been quoted above in toto. From the possession of Jeevan, the articles have been seized vide Ex.P/62 which includes the golden tops of the deceased Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 34 and the belt and also his own mobile. Appellant Shriram also got recovered Santro car from his house vide Ex.P/69 which was brought to his house by the appellant Rahul on 19.05.2011. Vide Ex.P/70 and P/71, Arjun got recovered two registration plates of Santro car bearing registration No. MP09 CG 0556. Mobile phones were also seized in his presence from the accused persons as also certain cash recovered from the accused persons. In his cross-examination, PW-26 Ramesh has admitted that his daughter has been married to Munnalal's son and Munnalal happens to be the brother of Yashwant. His testimony has been tried to be impeached by the appellants on the ground that he is an interested witness and was very much interested in supporting the case of the prosecution, and thus, can be relied upon. However, it is found that this witness is a resident of Gram Dasai which is just six km. away from village Gadrawad and merely because his daughter has been married to the son of the brother of the deceased, it cannot be said that his testimony cannot be relied upon especially in this era where it is extremely difficult for the prosecution to arrange an independent witness to invest his time and energy, religiously for the purposes of preparation of various memos for the prosecution. Thus, merely because this witness happens to be a not too distant a relative of the deceased, in the considered opinion of this court, his testimony cannot be discarded.
57] PW-27 Bhagirath is the Naib Tehsildar who has conducted the test identification parade of the articles of the deceased persons vide Ex.P/11. In para 10 of his cross-examination, he has stated that he had mixed up the articles to be identified with identical articles, and has submitted that the articles were correctly identified by Satish and Madhubala, the son and daughter of the deceased persons Although, in his cross examination he has Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 35 accepted that he did not specify the characteristics of the items and has also not mentioned that the mixed items were identical in nature. 58] PW-32 Hitendra Chauhan is the Sub-Inspector posted in the office of S.P., Dhar on the post of In-charge Cyber Cell. He had made request to the Nodal Officer of Airtel Company regarding the tower location of certain mobile numbers of Videocon, Idea and Reliance Company. This was done by him on 28.08.2011 and after receiving the call details, he had furnished them to the Investigating Officers.
59] PW-33 Shankarlal Kharadi is the initial Investigating Officer who has died before he could be cross examined. In his deposition he has narrated the story of the prosecution, stating that on the basis of the inofrmant's information, mobile phones, call details and other technical evidence, he came to know that Shriram had obtained a sum of Rs. 30- 40 lakhs from deceased Yashwant to ensure sale of land by Santosh Dhobi to Shriram and since Yashwant was pressurizing Shriram to get the registration of the land and since Gajrabai, wife of Yashwant was also privy to their transaction, with a view to commit murder of both of them and to burn their bodies in order to conceal the evidence, Shriram hatched the conspiracy. He has lodged the FIR Ex.P/88 against all the accused persons and had arrested them on this day only, i.e., on 02.06.2011. He has admitted that he had taken the memorandum of Shriram on 03.06.2011 that the account of money transaction between him and Yashwant is kept with accused Rahul which he would get recovered. Pw/33 also prepared a memo at the instance of appellant Rahul who had stated vide Ex.P/53 that the Santro car is kept in Indore which he can get recovered, but no car has been recovered from Indore. Whereas, the car has been recovered on 10/06/2011 vide Ex.P/69 from the house of the appellant Shriram. The recovery of this Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 36 car from the house of the appellant Shriram after so many days of lodging of the FIR appears rather doubtful. To the utter misfortune of the accused persons, this witness has died before he could be cross examined and thus, the genesis of the story of the prosecution has remained a mystery as it was within the exclusive knowledge of Shankarlal Kharadi as to how this FIR has come to be recorded.
60] PW/35 Dr. Satish Kamlakar Dhoble is the person who has examined the belts recovered at the instance of accused persons Rahul and Jeevan and has opined that it is possible that the deceased persons were strangulated with the help of these belts, however, as already observed by this Court, these belts were never sent for any further forensic examination to find out that they have any DNA profile of any of the deceased persons. This is just one of the glaring mistakes on the part of the prosecution.
61] PW/39 Manish Kureshi is the alternate Nodal Officer of Vodafone company and has stated that the police had sought the call details and tower location of mobile number 97707-73332 from 16/05/2011 to 25/05/2011 and had taken out the call details from their computer and had sent the same to the S.P. Office, Dhar.
62] PW/40 Omprakash Ahir, a Sub Inspector is also the investigating officer who is the author of the seizure memo prepared under Section 27 of the Evidence Act and had recovery a stone from the spot where the incident took place. He has also got recovered the belt used to strangulate the deceased persons, plastic bottle from which the petrol was sprinkled on the body of the deceased and watches which they removed from the hands of both the deceased persons, a sum of Rs.9500/- recovered from the pocket of the deceased and a Nokia mobile phone which he broke. He has also got Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 37 recovered the bill regarding black film of the Santro car and the Santro car was also got recovered at his instance from the house of co-accused Shriram. This witness has also got recovered from appellant Jeevan Jatav wherein he informed that he had kept the gold tops, the belt used in the murder and his mobile vide Ex.P/62. He has also recovered from appellant Vikram Singh vide Ex.P/63 the registration number of Santro car, both front and backside which he had kept in his house. He also got recovered his mobile phone. A heavy stone was also got recovered vide Ex.P/64 on which there were blood spots. The spot map was also got prepared with the aid of appellant Rahul, Vikram and Jeevan. The rexine belt, a broken Nokia company mobile, bislery plastic bottle from which the smell of petrol was coming and a bill of Car Decor Indore and two SIMs having IMEI Nos.7910571301799382 and another SIM having IMEI No.910571301819388 were also got recovered from this accused Rahul along with two watches; one of Titan and another of Sonata were recovered through Ex.P/66. Similarly from appellant Vikram Singh, number plate of Santro car bearing No. MP09-CG-0556 both front and back, his mobile having IMEI No.910578505553036 and other mobile having IMEI No.910578505553044 of Airtel and Videocon SIM respectively were also seized vide Ex.P/68. From appellant Jeevan Jatav, a black belt, one pair of golden tops, one mobile having three SIMs and having IMEI No.354238043174117, second SIM having IMEI No.354238043245511 and third SIM having IMEI No.354238043316916 in which Idea SIM was inserted was also recovered from him vide Ex.P.67. Vide Ex.P/69, the Santro car has been seized from the house of appellant Shriram. Vide Ex.P/78, two diaries were also recovered from appellant Rahul which Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 38 according to him belong to Yashwant. He has been cross examined at length and there are omissions and contradictions in his statement. 63] PW/40 Omprakash Ahir has denied that he has joined hands with the family members of deceased and has admitted that he obtained no evidence that witness Kamal Patidar had given Rs.3 Lakh to the appellant Shriram and witness Satyanarayan had given Rs.2 Lakh. He has admitted that Sunita Bai was arrested on 21.06.2011 of which witness Ramesh has also admitted that in the other memos also, the witness is Ramesh. He has also been suggested that Ramesh happens to be a relative of the complainant party. He has denied that he has taken up the investigation in the case because he was agreed for preparing the forged agreement at the instance of the family members of the deceased. He has admitted that from Nasrullaganj to Indore, distance is about 275 kms and on 06.06.2011, appellants Rahul, Vikram and Jeevan were with him only in Ashta. He has admitted that when he got the case diary for investigation on 06.06.2011, the FIR was already lodged on 02.06.2011 in which the names of all the accused persons were also mentioned. He has admitted that in the enquiry of missing person report Ex.D/2, only two witnesses namely Satish S/o Yashwant whose statement is Ex.D/2 and Jeevan, S/o Bherulal whose statement is Ex.D/17 was taken and it is also mentioned in the case diary that information has been received from some informer but, it is also not mentioned as to regarding which incident this information has been received and has denied that the Sub-Inspector Kharadi had made a false report only on the basis of two witnesses. He has admitted that on
06.06.2011, he had obtained the memo of appellant Rahul Ex.P/60 at Police Station Kotwali, Dhar at around 8:00 a.m. in the morning and his second memo was also prepared on this day at around 1:00 p.m. vide Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 39 Ex.P/61 at Indore. He has admitted that the car has been seized from the appellant Shriram's house on 10.06.2011 vide Ex.P/72. He has also admitted that appellant Rahul and Shriram were in police custody since 03.06.2011 only. He has also admitted that in Ex.P/72, he has mentioned that car has no number plates but, he has not taken any photograph of the car. He has denied that he did not take the photograph of the car because it was already having number plate fitted on it and thereafter, after removing the number plate, it has been seized vide Ex.P/68 and has denied that after removing the number plate he has seized it. He has admitted that he did not seize any receipt of Santro car from the toll booth and has even feigned ignorance that he does not have the second copy of the toll receipt which is kept with the concerned person at toll booth only, although, he has admitted that he has taken the record from the toll booth in-charge which is proved as Ex.P/118. PW-40 in para 64 of his deposition of his cross- examination has also admitted that on 10/06/2011, he had prepared the memorandum of appellant Shriram vide Ex.P/69 in which he has mentioned that the Santro car is parked in his house only whereas vide Ex.P/72, the car has been seized from his house. He has also admitted that accused Rahul and Shriram were in jail since 03/06/2011. 64] PW-41, Saidutt Bhore is the Nodal officer of the Airtel who has provided call details of various SIMs of the Airtel Company which have been seized in the investigation and has also proved the certificate under Section 65-B of the Evidence Act as Ex.P/111 and the covering letter is Ex.P/112. He has also mentioned that mobile number 999366614 is registered in the name of Yashwant, S/o Ranchhor, R/o Village- Gardawat. This witness has accepted that the various mobile numbers, the details regarding which he has given do not have the tower location as they are not Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 40 decoded and has stated that to decode the numbers, he has brought his laptop in the Court to which an objection has been raised by the counsel for the appellants that no such document can be proved in the Court directly as the decoding is in itself is a document hence, it cannot be proved for the Court for the first time to which, the Court has held that since all the documents have already been produced earlier and only call numbers decoding was not done and till the decoding is done, there is no utility of obtaining the mobile numbers and not bringing the decoded number is only a minor error on the part of the witness. Hence, it was allowed that the decoding can be proved in the Court. In his cross-examination, he has also been suggested that the Certificate given under Section 65-B of the Evidence Act is not in accordance with law. He has admitted that he has not brought any certificate to the fact that he is the Circle Nodal Officer of Airtel Company. He has also admitted that there is no description of the computer number viz, its model, make and other particulars are not mentioned. However, subsequently he has also produced the location decoding chart as Ex.P/174.
65] PW-42, Sureshchandra Gupta happens to be the Nodal Officer of Videocon Company and has proved the documents regarding the mobile phone containing SIM No. 9074463173 and its details. In his cross- examination, he has admitted that he does not know as to under which provision of law, Certificate under Section 65-B is given. 66] PW-43 is Govindramji, who is the Sells Promoter posted at Mahakal Toll Naka as Accountant has proved Ex.P/118 which is a document containing the vehicle details of 18/05/2011 which also contains car No. MP09 CG 0556. This document clearly reveals that the Santro car bearing registration No. MP09 CG 0556 indeed passed from Mahakal Toll Naka.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 4167] PW-44, Santosh Jadhav is the Assistant Nodal Officer of Reliance Company. He has produced the documents regarding the SIMs of Reliance Company and the certificate issued under Section 65-B of the Evidence Act.
68] PW-46, Rajesh Gupta is the Nodal Officer of Idea Cellular Limited and has proved the documents regarding the mobile phones having SIMs of Idea.
69] PW-47, Gopal Suryavanshi is yet another Investigating Officer who has proved various memos including the tower locations of the appellants Rahul, Vikram and Jeevan vide Ex.P/141 to P/143 in which the location of the appellant Rahul on 18/05/2011 at around 23:30 p.m. is shown as Nasrullaganj, Sehore. In para 39, he has admitted that before he joined his duty in the concerned police station, Santro car was already seized vide Ex.P/72 on 10/06/2011 and in the said memo, it is not mentioned that the back seat of the car has blood stains or hair. In para 44, he has admitted that as per the Fingerprint Expert's report, Ex.D/14, none of the accused persons had their fingerprint marks in the Santro car. In para 47, he has admitted that the belts seized from the accused persons where not sent for the FSL report. A suggestion has also been put to him that these belts were not sent to the FSL report because, had they been so sent for the FSL report, it would have revealed that the murders were not committed with the aid of these belts to strangulate the deceased and although he has denied this suggestion but, has stated that the belts were not sent for FSL report because they were already sent for the doctors to obtain their query. 70] Defence witnesses have also been examined in the case as per the DW-2, Praveen Neelkanth, Assistant State Examiner, who had examined the signatures of Yashwant on the disputed agreement has proved his Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 42 reports vide Ex.D/19 to D/21 and has opined that the signatures on the disputed agreement are not of the deceased Yashwant.
71] From the appreciation of the aforesaid evidence, it is clear that the story of prosecution regarding proposed purchase of land of Santosh Dhobi to Yashwant has not been proved and cannot be relied upon as a motive to commit the crime. And, the case of each of the accused persons has to be considered individually, on the basis of the evidence available against them.
72] From the aforesaid evidence led by the prosecution and the defence, as has already been discussed by this Court, it is apparent that the prosecution has miserably failed to prove the motive behind the offence, and in such circumstances, so far as the appellant Shriram is concerned, he was arrested on 04/06/2011 and vide his memo Ex.P/58 prepared under Section 27 of the Evidence Act, he has led to the recovery of tractor, a generator, an armature and a harvester vide Ex.P/59 but the recovery of these three articles is inconsequential for the reason that the prosecution has not been able to prove that these articles were purchased by the appellant Shriram out of the amount which he received from Yashwant, and surprisingly, on this day i.e. on 04/06/2011, no car was seized from the possession of appellant Shriram, however, it is found that accused Rahul gave his memo under Section 27 of the Evidence Act on 06/06/2011 wherein he has stated that he has kept the Santro car used in the offence in house of his brother-in-law Shriram and admittedly Rahul was already arrested on 02/06/2011. The another memo of appellant Shriram Ex.P/69 under 27 of the Evidence Act was again recorded by the police wherein he has stated that the Santro car which his brother-in-law Rahul had parked in his house can be recovered from his house, and thereafter on 10/06/2011 Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 43 itself, the Santro car has been seized from the house of the appellant Shriram Kalota. The aforesaid factual aspect of the matter clearly reveals that so far as the manner in which the Santro car has been seized from the house of the appellant Shriram Kalota is concerned, it makes the prosecution case highly dubious and cannot be relied upon. As has already been held that the prosecution has not been able to prove that the stain which was collected from the back seat of the car was a blood stain and thus, the DNA of the aforesaid stain is of no consequence when the car itself belong to the deceased persons, in such circumstances, this Court is of the considered opinion that the prosecution has not been able to prove its case beyond reasonable doubt against the appellant Shriram Kalota and as such he is entitled to the benefit of doubt and is entitled to be acquitted. 73] Additionally, this Court is also skeptical about the story of the prosecution that the appellant Shriram sent the deceased Yashwant and his wife to get the registry of a land situated in district Dhar, to Indore which appears improbable.
74] So far as the appellant Rahul Mori is concerned, from his possession, a broken mobile of the deceased Yashwant as also two wrist watches have been seized which have been duly identified by the son and the daughter of the deceased persons. From appellant Jeevan, the golden tops of the deceased Gajrabai have been seized which have also been identified by the son and the daughter of the deceased persons. So far as the discrepancies in the IMEI nos. of the mobiles recovered from the appellant Jeevan are concerned, it is found that most of the numbers are common and only last couple of digits are different which may be due to improper noting of the IMEI nos. And lastly from appellant Vikram, the registration plates of Santro car bearing registration No. MP09-CG-0556 have also been seized Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 44 which clearly establish his connection with the Santro car which was taken by these accused persons from Indore to Nasrullaganj as it is also found that the accused persons were in contact with each other during that time and accused appellant Rahul's mobile location has also been found at Nasrullaganj in the night of 18/05/2011 vide Ex.P/143 coupled with the fact that the toll receipt Ex.P/118 of Mahakal Toll Naka also suggest that the Santro car passed from that Naka on 18/05/2011. Although the defence has also tried to challenge the seizure effected from these accused persons but this Court, in the light of the deposition of the son and daughter of the deceased is of the opinion that their deposition regarding the identification of the articles of their parents cannot be doubted.
75] Shri S.K. Vyas, learned senior counsel appearing for the appellant Vikram has also stated that it is improbable that Vikram would keep the registration plates of the Santro car at his house only to be recovered in future to connect him with the offence but this court is of the considered opinion that it is difficult to envisage as to what drives a person to keep certain things close to him and the possibility of appellant Vikram keeping the registration plates as souvenirs cannot be ruled out, thus, the appellant Vikram cannot be given any benefit of such submissions of the learned senior counsel.
76] In view of the aforesaid, this Court has no hesitation to come to a conclusion that the prosecution has been able to prove its case beyond reasonable doubt against the appellant Murari @ Rahul Mori, Jeevan Jatav and Vikram Chuhan and thus, their conviction cannot be faulted with and accordingly their appeals are hereby dismissed.
77] So far as the decision cited by the learned counsel for the appellants are concerned, in the considered opinion of this Court, no help can be Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 21-12-2022 13:29:39 45 derived by the appellants on the basis of the said decisions as the same are distinguishable on facts. However, considering the various infirmities in the evidence led by the prosecution, and the fact that it is a case of circumstantial evidence, this Court is also of the considered opinion that since the learned Judge of the Trial Court has convicted the appellants under Section 302/364/201 of IPC on two counts and has directed that their sentence shall run consecutively, the interest of justice would be served if their sentences should run concurrently. And, thus, it is directed that the sentences awarded to the appellants Rahul, Jeevan and Vikram by the Trial court shall run concurrently instead of consecutively. 78] Accordingly, Criminal Appeal No.4409/2018 is allowed and Criminal Appeals No.4028/2019, No.1841/2019 and No.5868/2018 are hereby partly allowed to the aforesaid extent. Appellants Sunita Bai and Shriram Kalota be released from the jail forthwith, if not required in any other case.
(SUBODH ABHYANKAR) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
krjoshi
Digitally signed by KHEMRAJ JOSHI
Date: 2022.12.21 13:30:17 +05'30'
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 21-12-2022
13:29:39