Madhya Pradesh High Court
Salim Kha vs The State Of Madhya Pradesh on 2 November, 2020
Equivalent citations: AIRONLINE 2020 MP 1135
Author: Shailendra Shukla
Bench: Shailendra Shukla
1
HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE
CRIMINAL APPEAL NO.7964 OF 2019
(Salim Khan vs State of Madhya Pradesh)
Indore, Dated 02.11.2020
Heard the matter through Video Conferencing.
Mr. Vivek Singh, learned counsel for the appellant.
Mr. Bhaskar Agrawal, learned public prosecutor for the
respondent/State.
ORDER
Per Shailendra Shukla, J:
Heard on IA No.4774/2020 which is an application for urgent hearing of the case.
Keeping in view the reasons stated in the application, the same is allowed. Accordingly, IA No.4774/2020 stands disposed of.
Submissions were made on IA No.1384/2020 which is an application for suspension of sentence and grant of bail under Section 389 of the Code of Criminal Procedure, 1973 filed on behalf of appellant-Salim Khan S/o Riyajuddin. The appellant-Salim Khan has been convicted under the provisions of Section 302 of Indian Penal Code, 1860 and sentenced to Life Imprisonment along with fine of Rs.5000/- with further default stipulation of six months by Second ASJ, Barwah, District-Khargone in ST No.483/2016 vide judgment dated 13.09.2019.
It has been submitted that the case is based on circumstantial evidence and the circumstances against the appellant have not been proved beyond reasonable doubt.
Learned counsel for the appellant has relied upon the citation of Ashish Batham vs State of Madhya Pradesh 2 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.7964 OF 2019 (Salim Khan vs State of Madhya Pradesh) reported in 2002 Vol.-II JLJ 373 to bolster his submission.
The prosecution story in short was that deceased-Dhapu Bai had entered into an agreement to sell land with accused- Azad for a sum of Rs.2.50 lakhs and she was given Rs.50,000/- in cash by the accused-Azad. However, rest of the amount was not given to her and therefore Dhapu Bai refused to hand over the land. Thereafter, accused-Azad, his father- Sanawar and present appellant-Salim Khan had hatched a conspiracy in pursuance of which Dhapu Bai was taken in a maruti car and was murdered on the way by accused persons and the body of deceased-Dhapu Bai was recovered later on.
Learned counsel for the appellant has submitted that there was no motive on the part of present appellant to murder Dhapu Bai because there was no dispute between them. The only evidence against the appellant was the recovery of mobile phone of Dhapu Bai from the present appellant which in itself is inadequate material for conviction.
Per Contra, learned public prosecutor for the respondent/State has opposed the suspension application and in his written reply, it has been stated that not only the mobile phone of Dhapu Bai was recovered from the appellant but it has also been found that the present appellant-Salim Khan was in regular contact on mobile phone of Dhapu Bai just prior to the day when she went missing from her house.
Record was perused.
In para-23 of the judgment of trial Court, it has been found that appellant-Salim Khan and deceased Dhapu Bai 3 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.7964 OF 2019 (Salim Khan vs State of Madhya Pradesh) were in regular contact with each other on mobile phone up-to 27.02.2015, on which date Dhapu Bai was found to have been missing from her house and that on 27.02.2015, appellant and deceased-Dhapu Bai had talked to each other on mobile phone for ten times. The CDR of mobile phone of Dhapu Bai is Ex.P/38. This CDR has shown that deceased-Dhapu Bai and present appellant-Salim Khan were in regular contact with each other right up-to the day when Dhapu Bai went missing. Thus, it is apparent that deceased-Dhapu Bai and present appellant- Salim Khan knew each other and that there was unusual frequency of mobile connection through their mobiles on 27.02.2015. Further, it has also been found that appellant- Salim Khan started using the mobile phone of Dhapu Bai from 29.03.2016 onwards. The IMEI number of mobile phone which appellant-Salim Khan had started using from 29.03.2016 was that of Dhapu Bai.
Learned counsel for the appellant submits that there is a vast difference in respect of time of death of deceased-Dhapu Bai on 27.02.2015 and the date 29.03.2016, when the appellant-Salim Khan started using the mobile phone of Dhapu Bai and therefore this evidence is insufficient circumstantial evidence against the appellant-Salim.
Considered.
Once it was found that deceased-Dhapu Bai and present appellant-Salim Khan knew each other and they were in regular contact with each other on their mobile phones and on 27.02.2015 there was unusually high frequency of contact and 4 HIGH COURT OF MADHYA PRADESH, BENCH AT INDORE CRIMINAL APPEAL NO.7964 OF 2019 (Salim Khan vs State of Madhya Pradesh) on the very same day, Dhapu Bai went missing, the burden was upon the appellant-Salim Khan under Section 106 of Evidence Act, 1872 to show that as to how he came in possession of mobile set of deceased-Dhapu Bai, this burden has not been discharged by the present appellant. This aspect has been considered in para 24 of judgment.
In the accused statement, the appellant-Salim Khan has not provided any explanation as to how he came in possession of mobile phone of deceased Dhapu Bai. The above piece of circumstantial evidence are vital enough to point out the involvement of present appellant-Salim Khan in the commission of aforesaid offence. The absence of motive in itself is not a ground for acquittal.
After due consideration of aforesaid facts and circumstances of the case, no case is made out for grant of suspension of sentence to present appellant. The application- IA No.1384/2020 stands rejected.
Be listed for final hearing in due course.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2020.11.04
10:40:42 +05'30'