Madhya Pradesh High Court
The State Of Madhya Pradesh vs Mohd.Sher Ali on 12 July, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH : JABALPUR
(i) Criminal Appeal No.2246/2008
Munna @ Sudekh @ Saddam
-Versus-
State of Madhya Pradesh
(ii) Criminal Appeal No.2232/2009
State of Madhya Pradesh
-Versus-
Mohd.Sher Ali and others
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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Cri.Appeal No.2246/2008
Shri Prem Narayan Verma, Amicus Curiae for the appellant
Shri Shivendra Pandey, Government Advocate for the State.
Cri.Appeal No.2232/2009
Shri Shivendra Pandey, Government Advocate for the
appellant/State.
Shri Prem Narayan Verma, Amicus Curiae for the
respondents.
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JUDGMENT
(Jabalpur dt.: 12.07.2018) Per : V.K. Shukla, J.-
Both the Criminal Appeals are arising out of the common judgment dated 9-06-2003, passed by 4th Additional Sessions Judge Jabalpur in S.T.No.463/2007. In Criminal Appeal No.2246/2008 challenge has been made to 2 the order of conviction and sentence of appellant Munna @ Sudekh @ Saddam for offences punishable under section 366 of IPC to undergo R.I. for 5 years and fine of Rs. 500/-, in default, to suffer further R.I. for 2 months; under section 376(2)(g) of IPC to undergo R.I. for 10 years and fine of Rs. 500/-, in default, to suffer further R.I. for 2 months and under Section 302 of IPC to undergo imprisonment for life and fine of Rs.1000/-, in default, to suffer further R.I. for 3 months, whereas the other appeal (Cri.Appeal No.2232/2009) is filed by the State under Section 378(3) of the Code of Criminal Procedure against the order of acquittal in respect of 5 accused persons.
2. The short facts of the case are that on 31-05- 2007 at 9.00 PM, deceased Ku.Nikita, aged about 5 years was abducted by appellant Munna @ Sudekh @ Saddam without consent and will of her parents. On the same night, she was raped and murdered by appellant Munna @ Sudekh @ Saddam and her dead body was thrown nearby house. Her father Dilip Kumar Verma made a search in the whole night but he did not find his daughter. Next day on 01-06-2007, at 5.00 A.M. her dead body was lying nearby his house. The allegation is that on 31-05-2007, there was a celebration on the retirement of neighbour Bhojraj Patel, Dilip Verma father of deceased also went to attend the said 3 function with her minor daughter Ku.Nikita. She was dancing with other children, so father came back alone his house but Ku.Nikita remained there. Meanwhile, it is alleged that appellant/accused Munna @ Sudekh @ Saddam brought her in his house where she was raped and murdered. The matter was reported to the Gorakhpur Police Station and a case of abduction and murder was registered and the investigation was carried out. On the basis of statement of PW-5 Ram Milan Yadav and PW-6 Vinod Kumar Kol, who had last seen the deceased going with appellant Munna @ Sudekh @ Saddam, the search was made and thereafter other evidence was also collected. The investigation was carried out by PW-15 Rajesh Tiwari. On the intimation, Dehatinalshi was registered by PW-12 Ramji Pandey and thereafter the FIR was registered. The charge sheet was filed against all the 6 accused persons for commission of offence under Section 366, 376(2)(g) and 302 of IPC.
3. The prosecution examined total 16 witnesses. The learned trial court convicted appellant Munna @ Sudekh @ Saddam and 5 accused persons were acquitted. Since the facts and evidence are common, therefore, both the appeals are being decided by the present order.
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4. The conviction of appellant Munna @ Sudekh @ Saddam is based on the testimony of PW-5 Ram Milan Yadav and PW-6 Vinod Kumar Kol, who had seen the deceased last with the accused person. PW-5 Ram Milan Yadav has stated that after retirement of Bhojraj Patel, there was a retirement party and after the "Akhand Ramayan", dinner was also organized. In the said party residents of the colony including him, father of the deceased and others had attended. There was a music near the temple and the children were dancing. After 8 O' clock around 8.35, when he alongwith Vinod Kol was returning from the function, near Trimuti temple he saw that the children were dancing and Nikita was also there. He had seen the accused taking Nikita with him and thereafter he had gone to his house. In para-3 of his statement, he further stated that at around 9 PM, Dilip Verma, father of the deceased came to his house to know about his daughter. He stated that he had seen appellant Munna @ Sudekh @ Saddam taking his daughter. Thereafter alongwith Dilip Verma they had gone to many houses including the house of the family of appellant Munna @ Sudekh @ Saddam to know about the daughter. One family member Haider Ali was at home but he did not inform anything about the deceased as there was no light in the 5 house. Thereafter, they made a search of the girl throughout the night. In the morning at about 5.00 A.M. he got information that the dead body of Nikita was found lying near her house. On his face red lead(Sindoor) was pasted. On information the police came at the spot and the dead body of Nikita was taken.
5. The other "last seen together" witness is PW-6 Vinod Kumar Kol, who also stated that he had also attended the party and after 8 P.M. he came back alongwith PW-5 Ram Milan Yadav and near the temple he had seen that the children were dancing and he also saw that Munna @ Sudekh @ Saddam called Nikita and had taken her to the house alongwith him. He further stated that he had seen the other members of the family of Munna @ Sudekh @ Saddam also with Nikita. In para-3 of his statement, he has stated that her father came to his house also to know about Nikita. He informed that he had seen Nikita alognwith Munna @ Sudekh @ Saddam and thereafter they had gone to the houses of neighbours including Munna @ Sudekh @ Saddam but in the house of Munna @ Sudekh @ Saddam the light was switched off and on asking about the same, the family members informed that there was power failure in the house. In the morning, he also got information that the dead body of Nikita was found lying near house and 6 thereafter the matter was informed to the police and the dead body was taken and sent for postmortem. Thus, these two witnesses PW-5 Ram Milan Yadav and PW-6 Vinod Kumar Kol have established that the deceased was last seen alongwith accused Munna @ Sudekh @ Saddam. In the cross-examination, there is nothing to suggest that there was any reason for them to falsely implicate the appellant. They are firm with their testimony that while returning from the function, they had seen the accused with deceased Nikita.
6. Father of the girl, PW-1 Dilip Kumar Verma deposed that there was a function on account of retirement of Bhojraj Patel followed by dinner. There was also 'Manas Akhand Path' which he had gone to attend the said function alongwith his daughter Nikita at around 6 P.M. in the evening. He remained there around 8.30 P.M. The children were dancing. Her daughter also insisted to dance and thereafter he had come back leaving the daughter there to dance alongwith the other children. Around 9 A.M., he sent her elder daughter Neha to call Nikita. He came back and stated that Nikita was not there. Thereafter, he went to search his daughter alongwith other neighbours. They also went to the house of the appellant. He was in his house. He denied that Nikita had come to his house. Thereafter one 7 councilor Khanjeshwar Mahawar informed the police on mobile about missing of his daughter. The police personnel had come and then they made a search of his daughter alongwith the police personnel also. They again went to the house of Munna @ Sudekh @ Saddam but the light was switched off and the other members of the family denied that Nikita had come to their house. In the morning, at about 5 A.M. the dead body of Nikita was found near his house. Her face was pasted with red lead (Sindoor). The statement of father of the deceased has established that there was a function in the colony and he had gone alongwith his daughter Nikita (deceased), who was left there to dance alongwith the other children. PW-15 Rajesh Tiwari is the Investigating Officer, who deposed that in the night, a report of missing was written by Head Constable Lekhram and the search was made and when in the morning intimation about the dead body of Nikita was received, he went to the spot. After registering the offence the different teams of the police personnel were formed to search the accused persons. Videographer, Photographer, dog squad, and FSL Incharge R.S.Singh were called at the spot. He went to the house of the appellant and in the back courtyard he found broken pieces of bangles, spot of Sindoor, blood stained soil and one rope of cloth. Vaginal 8 test was done by expert of FSL. The seizure of all the articles were prepared vide Ex.P-2 and seen map was prepared vide Ex.P-18. On inquiry from one Rukhsar Begum, who is sister-in-law of accused Munna @ Sudekh @ Saddam, the other accused persons were also arrested. He stated in para-9 of the statement that Rukhsar Begum had informed that accused Munna @ Sudekh @ Saddam had brought Nikita from near temple and she was handed over to Munna @ Sudekh @ Saddam and after half an hour, Munna @ Sudekh @ Saddam committed rape with the child. As per his statement, the other accused persons Sher Ali and Mohd. Azad had caught hold the hands of the deceased and thereafter she was murdered. On the discovery statement of appellant Munna @ Sudekh @ Saddam, he seized one Sindoor box Ex.P-4 which was kept in a box. He also seized the shirt and trouser of the appellant vide Ex.P-
3. He had also taken sample of nail and hairs of head and private part. His semen slide was also prepared and the MLC report of appellant is Ex.P-19. In the said report, he was found capable for intercourse. His semen was also sent for chemical examination. The report of FSL is Ex.P-29 and another report dated 24-10-2007 is Ex.P-30. PW-2 Ramadhar Kol is seizure witness has proved the seizure of broken bangles and other articles. In para-4 of the 9 statement, he stated that the police had also brought sniper dogs who had gone at the spot.
7. PW-8 Dr.Ashok Jain, who had carried out the postmortem had found multiple external injuries on the deceased. On her face, there was Sindoor. There were injuries on his cheek, shoulder and chest. There was also ligature marks on her neck 22x5 cm. He also found that there was bleeding from her private part and her hymen was ruptured. He found that she died because of strangulation with the help of some articles like rope. There was forcible intercourse which had caused serious injuries on the private part of the child. The report is Ex.P-9. In his cross-examination, he denied all the suggestion that such injuries could have been caused because of fall on any surface. Thus, the prosecution has established that the child had died because of forcible sexual assault and she was murdered after the rape by strangulation. The last seen together evidence is corroborated with the seizure of broken bangles, Sindoor and the rope used for commission of offence from the place of incident which is courtyard of the house of the appellant. In addition to that in FSL, the Sindoor which was found on the face of the deceased had matched with the sample of Sindoor taken from the nail of the accused. In the FSL report Ex.P-30, the bangles in 10 Article-A and the bangles seized from the house of the appellant Ex.P-B were found to be the same. There is no explanation regarding the presence of broken bangles in his house, Sindoor box and also matching of Sindoor in his nail by the appellant. An attempt was made to mislead the incident by giving it color of sacrifices for religious purpose by using Sindoor on the face of the deceased child. Thus, the testimony of PW-5 Ram Milan Yadav and PW-6 Vinod Kumar Kol who has last seen together the deceased alongwith appellant Munna @ Sudekh @ Saddam is corroborated with the other evidence of seizure of FSL report.
8. In view of the facts and evidence as discussed hereinabove, we find that the last seen together evidence is well supported with other corroborative evidence. The allegation is not based only on the last seen together evidence. The Apex Court in the cases of Rambraksh alias Jalim Vs. State of Chhattishgarh (2016)12 SCC 251 and Anjan Kumar Sarma and others Vs. State of Assam (2017)14 SCC 359 held that conviction cannot be based on the only circumstance of last seen together. Normally, last seen theory comes into play where time gap, between the point of time when accused and deceased were seen last alive and when deceased is found dead, is so small that 11 possibility of any person other than accused being the perpetrator of crime, becomes impossible. In the facts of the present case, the prosecution has established that the deceased was last seen with the present appellant and thereafter her dead body was found near her house. Thus, the conviction is not based solely on last seen evidence but there is corroborative evidence as well and the prosecution has successfully proved its case beyond any doubt. We do not find any error in the order of conviction and sentence of appellant Munna @ Sudekh @ Saddam.
9. Accordingly, Cr.Appeal No.2246/ 2008 is dismissed.
10. Criminal Appeal No.2232/2009 is filed against the acquittal. In view of the discussion of facts and evidence led by the prosecution in the connected appeal, there is no evidence against the other accused persons that they had abducted the child except the statement of PW-6 Vinod Kol. The findings recorded by the trial court do not warrant any interference.
11. The scope of interference in an appeal against acquittal has been reiterated by the Apex Court in the case of Harbeer Singh Vs. Sheeshpal and others (2016)16 SCC 418 that the court will not interfere with judgment of High 12 Court, unless the same is clearly unreasonable or perverse or manifestly illegal or grossly unjust. The mere fact that another view could also have been taken on the evidence on record, is not a ground for reversing an order of acquittal.
12. In view of the aforesaid, Criminal Appeal No.2232/2009 filed against acquittal of the other accused persons is dismissed.
13. Before parting, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High Court Legal Services Authority shall remit fee of Rs.4000/-(Rs. four thousand) to the amicus curiae who assisted this court.
(HEMANT GUPTA) (VIJAY KUMAR SHUKLA)
CHIEF JUSTICE JUDGE
hsp.
Digitally signed by
HARSAHAI PATERIYA
Date: 2018.07.19 16:30:12
+05'30'