Madhya Pradesh High Court
Rakesh Patel vs The State Of Madhya Pradesh on 5 September, 2017
MCRC-12762-2017
(RAKESH PATEL Vs THE STATE OF MADHYA PRADESH)
05-09-2017
Mr. Surendra Singh, learned senior counsel with Mr. R.S. Patel, learned counsel for the applicant.
Mr. D.K. Paroha, learned G.A. for the State. Mr. Shashank Shekhar, learned counsel for the Objector.
This application has been filed U/s.439 Cr.P.C. on behalf of applicant Rakesh Patel, in connection with Crime No.308/16 of P.S. Sanjivani Nagar, Jabalpur, for offences U/s.302, 201, 120-B of I.P.C. and U/s.25/27 of Arms Act.
The applicant herein is in judicial custody since 20.12.2016 in the aforesaid case. The deceased is one Ranu @ Jitendra Kumar Dubey. The charge-sheet has been filed.
Learned counsel for the applicant has emphasised on the fact that there is no corpus delicti in this case and the evidence is purely circumstantial in nature. The offence is said to have taken place between 8th and 9th November, 2016. The statement of one Manoj Koshta recorded on 10.11.2016 by the Police reflects that he had spoken to the deceased who told him that he was in the company of the applicant and they were headed to the farmhouse of the applicant for a party. The statement was recorded pursuant to a missing persons report lodged on 10.11.2016 which was registered at P.S. Sanjivani Nagar under Section 363 of I.P.C. against unknown persons by the father of the deceased Roop Narayan Dubey. On 19.12.2016, 41 days after the disappearance of the deceased, his wife Kiran Pathak gave her statement to the Police that on 9.11.2016 at 11.00 a.m., she received an SMS on her phone from the applicant herein who is said to have informed her that he has carried out a surgical strike on the deceased. She says that the SMS has been deleted. She further states that thereafter she rang up the deceased on the same day i.e. 9.11.2016 upon which the applicant is stated to have given an extra-judicial confession to her stating that he had done away with her husband. The reason for the delay of 41 days in giving the statement to the Police is allegedly attributed to the fear under which the she was placed by the applicant, even of death if she revealed it to the authorities. Thereafter, the applicant was taken into custody on 20.12.2016 and he gave his memorandum U/s.27 of the Evidence Act in which he is stated to have informed the Police that he could get the remains of the deceased recovered and from him the Police recovered a pistol, empty cartridges and a watch. The applicant is stated to have taken the Police to the scene of occurrence which is a field from where 39 fragments of bones were recovered. The DNA test of the bone fragments revealed that 38 bones were not of human origin and 1 piece of bone was stated to have been recovered of human origin. The burnt ring with white stone was also recovered from the scene of occurrence. One Nitendra, who is brother of the deceased is stated to have identified the ring. It is pertinent to mention here that the watch recovered from the applicant has not been identified in the test identification parade.
The case of the prosecution is that the applicant is stated to have informed the Police that he shot the deceased four times and placed the body on logs of wood, poured diesel over it and set it on fire. The body was stated to have been burnt completely to such an extent that thereafter the applicant could crush the bones to tiny bits, spread it all over his field, ploughed it with his tractor and sowed Dal over it. There is a statement of one witness Manish @ Pappu Shukla, which is recorded on 22.12.2016 wherein he has stated that on 8.11.2016 at 7.30 p.m., he had seen the deceased sitting in a Car with the applicant at Bajnamath Crossing and he is stated to have talked to the deceased who told the witness Manish Shukla that he was going to the farm of the applicant for a party. A day earlier on 21.12.2016, the 161 statement of two witnesses Ramakant Dubey and Rohit Shrivastava, who are petrol pump attendants at Tilwara were recorded wherein they have stated that on 8.11.2016 the applicant and the co-accused Neeraj had come to the petrol pump at night to purchase diesel.
Learned counsel for the Objector and the State have submitted jointly that the murder was well planned out by the applicant herein and that the recovery made from him stands corroborated by the statement of the wife of the deceased. It is also relevant to mention here that the wife of the deceased was in an illicit liaison with the applicant herein and the motive is shown as the said affair coming to the knowledge of the deceased. Learned counsel for the Objector has also submitted that four lead bullets were seized from the scene of occurrence which were lodged in the body of the deceased which upon forensic verification is stated to have been fired from the same weapon was recovered from the applicant. Out of the four bullets, two of them are deformed and two intact have been recovered from the Police. Learned counsel for the Objector has also submitted that the call details record and the cell tower location go to reveal that the numbers of the deceased and the applicant were all connected with the same tower which revealed that applicant and the deceased moving around together on the date of the incident.
Learned counsel for the Objector has submitted that 38 of the 39 fragments of bone which were recovered were shown to be not of human origin and there was one fragment of bone which was of human origin. However, the DNA test has concluded that an opinion was not possible as the bones were burnt to such an extent that the DNA was not extractable from the bone. Learned counsel for the Objector has also submitted that the investigation has deliberately been done in a faulty manner and they have complained about it and also desired that the bones fragment be sent to the centre for cellular and molecular biology at Hyderabad for a proper DNA test.
On the other hand, learned counsel for the applicant has submitted that the entire case is based on circumstantial evidence and that several links are missing. He has stated that the delay of 41 days on the part of the wife of the deceased in disclosing information about the SMS and the extra-judicial confession cannot be accepted. The reason given by the wife of the deceased for the delay that the same was occasioned on account of fear induced by the applicant herein, is untenable as no reason is given by the witness as to what the intervening incident was on account of which her fear faded and she came forward to give her statement on the 41st day. He has also submitted that 38 fragments of bones were found not of human origin except one. The watch that was allegedly recovered from the applicant herein has not been identified by any witness in the T.I.P. As regards the motive, it is the prosecutionâs case that the deceased had come to known about the illicit relationship between the applicant and the wife of the deceased. Learned counsel for the applicant submits that the said motive is highly improbable as the undisputed case of the prosecution itself is that on the night of the alleged incident, the deceased is stated to have gone along with the applicant herein to party on his field. Learned counsel for the applicant has submitted that such an act on the part of the deceased would militate against the normal course of the human conduct where a man who having come to know about an illicit relationship of his wife with the applicant would never go to a party with him or instead, he would be looking for ways and means of retaliating against the applicant.
Be that as it may, looking at the facts and circumstances of the case especially the fact that the applicant has been in judicial custody since 20.12.2016 and the charge-sheet has been filed and the delayed statement of the wife of the deceased by over 40 days, the fragments of bones, 38 out of 39 not being of human origin and the bone that was found to be of human origin, its DNA test not being possible on account of the extent of charring it has suffered, the non-identification of the watch of the deceased alleged to have been seized from the possession of the applicant and the delay in recording the statement of the other witnesses who prima-facie appear to corroborate the statement of the wife of the deceased and which delay has not been explained by the prosecution, the application is allowed and it is directed that the applicant herein shall be enlarged on bail upon his furnishing a personal bond in the sum of Rs.50,000/- (Rs. Fifty Thousand) with one solvent surety in the like amount to the satisfaction of the trial Court.
C.C. as per rules.
(ATUL SREEDHARAN) JUDGE a