Madhya Pradesh High Court
Mohit @ Lale vs The State Of Madhya Pradesh on 4 July, 2024
Author: Hirdesh
Bench: Vijay Kumar Shukla, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 4th OF JULY, 2024
CRIMINAL APPEAL No. 196 of 2014
(MOHIT @ LALE
Vs
THE STATE OF MADHYA PRADESH)
Appearance:
(SHRI RITU RAJ BHATNAGAR, LEARNED COUNSEL FOR THE APPELLANT)
(SHRI MUKESH SHARMA, LEARNED COUNSEL FOR THE
RESPONDENT/STATE)
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JUDGMENT
Per: Hirdesh, J.
This criminal appeal has been filed preferred by the appellant being aggrieved by the judgment dated 07.12.2013 passed by VI Additional Sessions Judge, Indore in Session Trial No.562/2012 whereby the trial court has convicted the appellant for the offence punishable under Section 302/34 of IPC and sentenced him to undergo R.I. for life with fine of R.1000/- and in default of payment of fine, two months' additional imprisonment.
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2. According to prosecution story, on 21.12.2011, Ishawar - brother of the complainant had gone out side of the home at 12 p.m. and he did not come back till night. On searching him, the complainant- Deepak S/o Shankarlal Mourya got information that the dead-body of his brother is lying near Dargaah of Gareeb Nawaaz Colony then on reaching the spot he saw that his brother Ishwar was having many injuries on his head with oozing blood and many big size boulders were lying having blood on them. The complainant lodged F.I.R. on 22.11.2012 against unknown persons of murder of his brother by using stones. Police registered the case under Section 302 of IPC and investigated the matter.
3. During investigation, investigating officer seized 9 SIMs from the trouser of the deceased in which one SIM was of Docomo numbering 7415745056 and also seized 5 empty bottles of country-made liquour because of having chance fingerprints on them. They were sent to fingerprint expert, Indore. The investigating officer took statements of Bhimsingh who stated in his statements that on 17.12.2011, accused and deceased were quarreling to each other and on 21.12.2011 he saw the deceased and accused with other juvenile accused. It was also stated by Yogesh @ Indu in his statement that victim made a call to him for bringing break-fast then he saw the accused with deceased. Police arrested the accused on 25.12.2011 and taking his memorandum under Section 27 of the Evidence Act recovered blooded shirt from his house and sent it to FSL, Indore for report. During investigation, police took statements of other witnesses and after completion of investigation filed charge-sheet before the magistrate court. After committal, this case was sent to trial court for trial.
4. Appellant abjured his guilt and sought trial. In turn, prosecution in order to prove its case examined 16 witnesses. After completion of prosecution witnesses, the appellant was examined under Section 313 of Cr.P.C. Appellant took defence that he did not committed any offence he was falsely implicated
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in the offence. He did not examine any witness in his defence. After concluding the trial, the trial court held the appellant guilty for the offence and sentenced him as mentioned above.
5. Being aggrieved by the impugned judgment, appellant has filed this appeal and submitted that trial court has committed grave error in not considering the facts and circumstances that prosecution story is based on circumstantial evidence and it is settled law that without establishment of chain of circumstances, appellant cannot be convicted.
6. Learned counsel for the appellant submits that chain of circumstances has not been established by the prosecution and conviction is based on last seen theory. In this regard, prosecution examined PW-1 Rajkumari, PW-3 Yogesh and PW-7 Bhimsingh but there are so many contradictions and omissions in the statements of PW-1 and PW-7. PW-1 improved his version in the court statements which contradicts his police statements Ex.P-1. PW-7 did not support the prosecution story and he was declared hostile. PW-3 Yogesh did not support his statements of examination-in-chief in his cross-examination in para 6 and trial court has committed error in relying the evidence of this witness. He further submits that prosecution has not been able to prove memorandum and seizure from the accused. Theses seizures and memorandum are doubtful. He further submits that FSL report and fingerprint report are weak type of evidence and prosecution has failed to prove that blood found on the cloth of the appellant was matching with the blood of the deceased. He further submits that the evidence of investigating officer is doubtful which is not corroborated by other evidence. So judgment of the trial court is erroneous and liable to be set aside.
7. Learned counsel appearing for the State supported the judgment passed by the trial court and submitted that prosecution has proved that appellant and
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deceased were seen together just before the death of the deceased and prosecution has established seizure of cloth from the appellant. He also submits that empty bottles seized from the spot were having fingerprint of appellant on it so fingerprint and FSL report are against the appellant and prays for rejection of the appeal filed by the appellant.
8. We have heard the learned counsel for the parties and perused the records.
9. The first question arises before this Court whether the death of the deceased was homicidal in nature or not.
10. PW-2 Deepak who is the elder brother of the deceased stated in his examination-in-chief that on date 21.12.2011, his brother (deceased) had gone outside of the home at 12.30 p.m. and did not come back till night. On next day, he got information that dead-body of his brother was lying near Dargaah then he went there and saw that his brother Ishwar was having many injuries on his head with oozing blood. Then he lodged report (Ex.P-2) at police station- Aerodrome, Indore. PW-14 investigating officer B.L. Meena stated in his examination-in-chief that he was posted as station-in-charge of police station- Aerodrome, Indore. On 22.12.2011 PW-2 Deepak came to police station and gave information that dead-body was found near Dargaah then he lodged F.I.R. (Ex.P-2) on the basis of the information given by PW-2 Deepak. He further submitted that he prepared dead-body Panchayatnaama of the deceased victim. After issuing Safina form in presence of the witnesses i.e. Ex.P-5 and prepared application for postmortem and sent the dead-body for postmortem.
11. PW-11 Dr. Bharat Bajpayee stated stated in his examination-in-chief that he was posted as Medical Officer, District Hospital, Indore on 22.12.2011 and conducted postmortem of the dead-body of the deceased and found following
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injuries on the body of the deceased:-
^^1- ,d dVk gqvk ?kko] 2-7 xq.kk 1 xq.kk 1@2 lseh- nkfgus xky ijA 2- ,d [kjksp a 4 xq.kk 1-3 lseh- ck;sa uhpys iSj ij 3- ,d Qvk gqvk ?kko 5 xq.kk 2 lseh- ck;sa ekFkS ij 4- nkfguk dku 2 lseh ,d QVk gqvk FkkA 5- nkfgus dkudk Vszxl fgLlk 1@2 xq.kk 1@4 xq.kk 1@4 lseha QVk gqvk FkkA 6- ,d QVk gqvk ?kko 2 xq.kk 1 xq.kk 1@2 lseh- nkfguh duiVh ds fiNs esLVzkbZM fgLls ijA 7- ,d QVk gqvk ?kko 6 xq.kk 2 xq.kk 2 lseh- nkfguh duiVh dh peMh ij o duiVh dh gMMh dbZ fgLlksa esa QszDPkj gksdj o foHkDr gksdj] gMMh ds VwdMs efLr"d dh f>Yyh esa ?kals gq, Fks o f>Yyh QV xbZ FkhA 8- flj ds ckabZ vksj ls peMh 6 xq.kk 5 lseha vkdkj rd pksfVy FkhA 9- flj ds fiNs dh peMh 8 xq.kk 6 lseh- vkdkj rd pksfVy Fkh^^
12. He further stated in his evidence that death of the deceased was due to shock and hemorrhage which is result of head injuries. Head injuries were caused by sharp and hard object. Injuries were sufficient to cause death and the the death is homicidal in nature. Duration of the death is within 24 hours in the postmortem report. Viscera was preserved for chemical analysis. Sealed cloth was handed over to the constable for further investigation.
13. Hence, considering the evidence of investigating officer PW-14 B.L. Meena and PW-11 Dr. Bharat Bajpayee it is proved that there were nine antemortem injuries present on the body of the deceased and deceased died due to those injuries. There is no substantial cross-examination has been done by the defence in this regard to PW-11. So considering the evidence of PW-11 and PW-14, it is proved that death of the deceased was homicidal in nature.
14. After perusal of the evidence produced by the prosecution it is found that there is no direct evidence of the incident so it is crystal clear that this case is based on circumstantial evidence. The Apex Court has held that when the case is based on circumstantial evidence, the Panchsheel principles laid down in
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AIR 1984 SC 1622 (Sharad Birdhi Chand Sarda Vs. State of Maharashtra) must be fulfilled:-
(i) The circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned 'must or should' and not 'may be' established.
(ii). the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say. they should not be explainable on any other hypothesis except that the accused is guilty,
(iii) the circumstances should be of a conclusive nature and tendency.
(iv) they should exclude every possible hypothesis except the one to be proved, and
(v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.
15. The first agreement rendered by the learned counsel for the appellant is that trial court has committed error in holding that the deceased and appellant were present and seen together before the death of the deceased. He further submitted that conviction is based on last seen theory but in this regard prosecution examined PW-1 Rajkumari, PW-3 Yogesh and PW-7 Bheemsingh.
16. On perusal of their evidence, it is found that there are so many contradictions and omissions in the evidence of PW-1 and, PW-7 has not supported the prosecution story and he was declared hostile. PW-3 has not supported his statements narrated in examination-in-chief in the cross- examination so statements of theses witnesses are not reliable. PW-3 has stated
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one thing in examination-in-chief and another thing in his cross-examination and PW-1 narrated one thing in court evidence but did not narrate in his police statement Ex.D-1.
17. In the present case, PW-7 Bheemsingh is the witness of last seen and he has not supported the prosecution story and he has been declared hostile so perusal of the evidence of PW-7 it is clear that this witness is of no help to the prosecution or defence. PW-1 who is the sister of the deceased stated in examination-in-chief that on date 21.12.2011 appellant Mohit @ Lale and juvenile came to her house and called the deceased Ishwar and the deceased Ishwar went with the appellant from her house. But, on perusal of the police statement, it was found that she has not stated this thing to the police in her police statement Ex.P-1 so it is clear that she improved her court statement from police statements therefore evidence of PW-1 Rajkumari was not reliable in this regard.
18. PW-3 Yoesh stated in his examination-in-chief that he knew the deceased and appellant. He stated that before 4-5 months, the deceased Ishwar made a phone call to him for bringing Samosaa then he brought Samosaa for the deceased then he saw that the appellant was present with the deceased. He gave Samosaa and biscuits to them and came back to his home. One day after, he came to know that murder of Ishwar has been done.
19. Learned counsel for the appellant argued that PW-3 stated in para 6 of the cross-examination, appellant was not present with the deceased when he brought Samosaa for the deceased. He did not see the appellant eating Samosaa at that time he did not see the appellant with deceased. So PW-3 has contradicted his statements given in examination-in-chief and cross- examination. Hence, this witness is not reliable. Perusal of evidence of PW-3 Yogesh, it is found that on 06.07.2012 before lunch his examination-in-chief was done and his cross was deferred due to tea time. After tea time, in his
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cross-examination he stated in para 6 that when he brought Samosaa for the deceased, appellant was not present. In Ex.D-2 police statements, this witness clearly stated that when he brought Samosaa for the deceased he saw the appellant with the deceased.
20. Considering the evidence of PW-3, it is found that when his evidence was deferred due to tea time, he was win-over by the defence and then he changed his statement which he gave in examination-in-chief. It is the duty of the public prosecutor to seek permission for re-examination of this witness. Now a days, it is found that public prosecutors are not performing their duty perfectly. Considering the whole statements of this witness, in the considered opinion of this Court, PW-3 was win-over in cross-examination by defence so his cross-examination is not reliable. On perusal of the evidence of PW-3 as a whole, it is not proper to reject his examination-in-chief because due to tea time his evidence was win-over. In the considered opinion of this Court, version of PW-3 stated in examination-in-chief was reliable version, hence, his cross-examination in para 6 is discarded. So according to evidence of PW-3 it is found that appellant and victim deceased together were found for the last time.
21. In the case of Jabir vs. State of Uttrakhand reported in 2023 SCC OnLine SC 32, Hon'ble Supreme Court has discussed the last seen theory and held as under:-
"29. Recently, in Rambraksh v. State of Chhattisgarh, (2016) 12 SCC 251, this court after reviewing previous decisions, stated as follows:
"10. It is trite law that a conviction cannot be recorded against the accused merely on the ground that the accused was last seen with the deceased. In other words, a conviction cannot be based on the only circumstance of
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last seen together. Normally, last seen theory comes into play where the time gap, between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead, is so small that possibility of any person other than the accused being the perpetrator of the crime becomes impossible. To record a conviction, the last seen together itself would not be sufficient and the prosecution has to complete the chain of circumstances to bring home the guilt of the accused.
11. In a similar fact situation this Court in the case of Krishnan v. State of Tamil (2014) 12 SCC 279, held as follows:
21. The conviction cannot be based only on circumstance of last seen together with the deceased. In Arjun Marik v. State of Bihar 1994 Supp (2) SCC 372) "31. Thus the evidence that the Appellant had gone to Sitaram in the evening of 19-7-1985 and had stayed in the night at the house of deceased Sitaram is very shaky and inconclusive. Even if it is accepted that they were there it would at best amount to be the evidence of the Appellants having been seen last together with the deceased. But it is settled law that the only circumstance of last seen will not complete the chain of circumstances to record the finding that it is consistent only with the hypothesis of the guilt of the accused and, therefore, no conviction on that basis alone can be founded."
22. This Court in Bodhraj v. State of (2002) 8 SCC 45) held that:
31. The last seen theory comes into play where the time gap between the point of time when the accused and the deceased were last seen alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes
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impossible."
It will be hazardous to come to a conclusion of guilt in cases where there is no other positive evidence to conclude that the accused and the deceased were last seen together.
23. There is unexplained delay of six days in lodging the FIR. As per prosecution story the deceased Manikandan was last seen on 4-4-2004 at Vadakkumelur Village during Panguni Uthiram Festival at Mariyamman Temple. The body of the deceased was taken from the borewell by the fire service personnel after more than seven days. There is no other positive material on record to show that the deceased was last seen together with the accused and in the intervening period of seven days there was nobody in contact with the deceased.
24. In Jaswant Gir v. State of Punjab (2005) 12 SCC 438), this Court held that in the absence of any other links in the chain of circumstantial evidence, the Appellant cannot be convicted solely on the basis of "last seen together" even if version of the prosecution witness in this regard is believed."
30. Again, in Nizam v. State of Rajasthan, (2016) 1 SCC 550 it was held as follows:
"Courts below convicted the Appellants on the evidence of PWs 1 and 2 that deceased was last seen alive with the Appellants on 23.01.2001. Undoubtedly, "last seen theory"
is an important link in the chain of circumstances that would point towards the guilt of the accused with some certainty. The "last seen theory" holds the courts to shift the burden of proof to the accused and the accused to offer a reasonable explanation as to the cause of death of the deceased. It is well-settled by this Court that it is not prudent to base the conviction solely on "last seen theory".
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"Last seen theory" should be applied taking into consideration the case of the prosecution in its entirety and keeping in mind the circumstances that precede and follow the point of being so last seen."
22. From the aforesaid it is clear that the cases of circumstantial evidence are to be dealt with carefully and evidence is to be seen to be completing the chain of circumstances. In the present case, prosecution has established as aforesaid discussed that appellant and deceased was seen together when the deceased was alive so last seen theory was established against the appellant.
23. Learned counsel for the appellant submits that memorandum Ex.P-12 and seizure of the cloth Ex.P-10 were fully established by way of evidence of PW-14 so seizure from appellant was not established and it is doubtful. In this regard, PW-14 has stated in examination in para 6 that on 26.12.2011 he enquired the appellant in presence of witnesses - Vishal and Balmukund and appellant gave information that he has kept his cloth in his house in almirah. He prepared memorandum No.12 and according to the memorandum, he seized blooded shirt and prepared seizure memorandum No.12.
24. PW-12 Vishal supported PW-14 and stated in examination-in-chief that appellant gave information that he has kept his blooded shirt in his house so memorandum 12 has been supported by independent witness. Learned counsel for the appellant submits that witness of seizure of the cloth Ex.P-10 was not supported by PW-9 and PW-10. It is true that PW-9 and PW-10 did not support the seizure Ex.P-10 but they accepted their signatures on these documents.
25. In in the case of Karamjeet Singh Vs. State (Delhi Administration), 2003 (5) SCC 291, the Apex Court has held that the evidence of the police officers cannot be discarded mere because he is police witness. His evidence is seen just like a witness. Police officer was a public servant and performing his duty. If it is found in cross-examination that he did not investigate the matter
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with malafide then his evidence cannot be discarded merely because he is police officer. In the present case, perusal of cross-examination of PW-14, it is found that PW-14 was intact in his cross-examination in regard to Ex.P-10 so mere because of hostility of PW-9 and PW-10 his evidence cannot be discarded. So seizure of T-shirt of the accused which was burnt at the time of the incident was duly proved by the prosecution. According to FSL report, Ex.P-27 it is found that human blood was found on the cloth of the accused.
26. Learned counsel further submits that FSL report is not conclusive report and it is a weak type of evidence. In FSL report, human blood was found on T- shirt seized from the appellant. So it is the duty of the appellant to disclose the fact as per Section 106 of Evidence Act as to how and why human blood was found on T-shirt of the accused which was seized from him. But, appellant was unable to rebut this fact in defence and he has not stated single word about it in his statement under Section 313 of Cr.P.C., therefore, even if blood group is not mentioned in FSL report same will not give any help to the appellant so FSL report Ex.P-27 is also against the appellant.
27. Learned counsel for the appellant submits that fingerprint has not been taken with the permission of Magistrate. He argued that according to Section 4 and 5 of The Identification of Prisoners Act, 1920, fingerprint or photograph must be taken with the permission of Magistrate by the police officer and cited the citation of Apex Court in the case of Babu Khan Vs. State of Rajasthan, AIR 1997 SC 2960. In this case Apex Court has held that if prosecution fails to prove that seized article was not tampered before sending to Bureau, specimen fingerprints are not taken before magistrate, seized articles are not produced and exhibited, conviction on the basis of fingerprint report is not proper.
28. Learned counsel also placed reliance upon the judgment delivered by the Apex Court in the case of Prakash Vs. State of Karnataka, 2014 CRI.L.J.
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2503 in which the Apex Court has held that expert evidence, fingerprint evidence, evidence of photographer that he had taken a photograph of bank pass book belonging to deceased from spot, negative of photograph showing fingerprint marks of accused also produced in Court by him, no material showing said negative photograph relate to pass book of deceased, testimony of photographer with regard to fingerprints of accused on bank pass book is, therefore, inconsequential. So conviction based on fingerprint report is not proper.
29. In this regard, on perusal of the evidence of PW-14 investigating officer who seized 5 empty bottles of country-made liqour from the spot on 22.12.2011 on which chance fingerprints were found, it is found that these bottles were sealed on the spot in presence of the witnesses i.e. Ex.P-7. These articles were produced before the Court during the deposition of the evidence of PW-12 i.e. article A-1 and A-2. So arguments arguments advanced by the learned counsel for the appellant on the basis of the verdict of the Apex Court is not applicable in this case.
30. In the present case, PW-13 K.K. Trivedi took fingerprint of the accused form the bottles and fingerprint report is Ex.P-13. Fingerprint report Ex.P-13 reads as under:-
^^mijksDr fcUnq ¼A½ o ¼B½ ds vk/kkj ij esjk fuf'pr er gS fd ijh{k.k gsrq ?kVukLFky ls tIr'kqnk lhycan izkIr dkWap dh ikWap cksryksa esa ls nwljh cksry ij izkIr pkWal fQaxj fizUV ekdZ A lUuh firk vkseizdk'k d';i ds nkfgus gkFk ds vaxwBs dk gh fQaxj fizUV gSA ,oa ikWapoh cksry ij izkIr pkWal fQaxj fiUV ekdZ F eksfgr mQZ ykys iztkir firk fxjh'k iztkir ds ckWa, gkFk dh rtZuh dk gh fQaxj fizUV gSA^^
31. According to Ex.P-13, fingerprints were found on the bottles which were
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seized from the spot on date 22.12.2011 so these fingerprints found on the bottles also proved his presence on the spot. It is the duty of the appellant to rebut this evidence but he has not stated single word about it in his statement under Section 313 of Cr.P.C. so fingerprints of the appellant found on the bottles are also against the appellant.
32. Considering the facts and circumstances of the case as well as the arguments advanced by the learned counsel for the parties in view of the prosecution witnesses as well as the report available on the record, the chain of circumstances is completed against the appellant on the following grounds:-
"(i) Appellant and deceased were seen together before the death of the deceased.
(ii) Seizure of the blooded cloth from the appellant was sent to FSL and human blood was found on the cloth of the appellant which is against the appellant and no explanation was given by the appellant.
(iii) Fingerprints were also against the appellant and no explanation was given by the appellant"
33. After taking into consideration all the grounds mentioned above and looking to the fact that the chain of circumstances is complete against the accused and the accused was unable to rebut the evidence adduced against him. So this Court is of the considered opinion that the appellant and only the appellant is guilty. So on the basis of the foregoing discussion it is clear that the learned trial court has properly assessed the evidence available on record and has rightly convicted and sentenced the appellant under the aforesaid sections of the Indian Penal Code. The learned trial court has not committed any error by convicting the appellant for the aforesaid offences. Hence, the
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conviction and sentence deserve to be maintained. Resultantly, the appeal filed by the appellant is dismissed and; conviction and sentence passed by the trial court is hereby upheld.
34. Copy of this judgment along with the record of the trial court be sent to the trial court for information and necessary action. The appellant is serving jail sentence, he be intimated about the outcome of this appeal through Superintendent of Jail and a copy of the judgment be also supplied to him through Superintendent of Jail.
(VIJAY KUMAR SHUKLA) (HIRDESH)
JUDGE JUDGE
N.R.
Digitally signed by
NARENDRA KUMAR
RAIPURIA
Date: 2024.07.11 17:22:35
+05'30'