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[Cites 17, Cited by 6]

Madhya Pradesh High Court

State Of M.P. vs Sharik Khan on 4 May, 2017

Author: Subodh Abhyankar

Bench: Subodh Abhyankar

      HIGH COURT OF JUDICATURE MADHYA PRADESH,
                   JABALPUR, M.P.



DIVISION BENCH: Hon'ble Mr. Justice S.K.Gangele
                            &
              Hon'ble Mr. Justice Subodh Abhyankar



           CRIMINAL REVISION NO.958 OF 2008

                        Smt. Laxmi Verma.
                                Vs.
                       Sharik Khan & others.


            CRIMINAL APPEAL NO.548 OF 2009

                      State of Madhya Pradesh
                                Vs.
                       Sharik Khan & others.


-------------------------------------------------------------------------

Criminal Revision No.958/2008 Shri Sanjay Agrawal and Shri Darshan Soni, learned counsel for the applicant.

Shri Pradeep Singh, learned Govt. Advocate for the respondent/State.

Criminal Appeal No.958/2008 Shri Pradeep Singh, learned Govt. Advocate for the appellant/State.

Shri Ahadulla Usmani with Shri Amanulla Usmani learned counsel for the respondents No.1 and 3.

Shri Manish Mishra, learned counsel for the respondent No.3.

------------------------------------------------------------------------- ORDER/JUDGEMENT (Passed on this the 4th day of May, 2017) Per:Subodh Abhyankar,J:

Both these cases are being disposed by a common order as they arise out of the judgment of acquittal dated 18.2.2008 passed in ST No.68/2006 by the Sessions Judge, Bhopal, whereby the learned Judge has acquitted the respondents/accused viz. respondent No.1 Sharik Khan, respondent no.2 Athar Ali and respondent no.3 Salman alias Raja from the offences punishable under Sections 364-A, 302 read with Section 34 of IPC relating to abduction and subsequent murder of master Gaurav Verma aged 14 years.

2. Criminal Revision No.958/2008 has been preferred by the mother of the deceased-child Gaurav whereas the Cr.A.No.548/2009 has been preferred by the State.

3. In brief the facts of the case are that the charge sheet was filed by the police against the respondents No.1 to 3/accused for commission of offence punishable under Sections 364-A, 302, 201/34 of IPC on the allegation that on 22.11.2005 at around 12 O'clock in the noon the respondents/accused abducted Gaurav Verma aged 14 years and subsequently demanded a ransom of Rs.5 lakhs using a mobile No. 9827532060 on the land line No.2538836 belonging to Gaurav's mother/father and also committed the murder of Gaurav by throttling/beheading as the head was found separately. In support of the prosecution, as many as 23 witnesses have been examined.

4. In defence under Section 313 of Cr.P.C. the accused persons have denied all the charges leveled against them and have not led any evidence or examined any witness in their defence.

5. The learned Sessions Judge, Bhopal after appreciating the evidence on record has acquitted the accused persons of the charges leveled against them by deprecating the conduct of the Investigation Officer/ Prosecution Agency and by giving benefit of doubt to all the three accused persons.

6. Learned counsel for the appellant State has criticized the judgement on the ground that the same is based on conjecture and surmises and undue benefit of doubt has been extended to the accused persons.

7. On the other hand, the learned counsel for the respondents has supported the finding recorded by the trial court and has further submitted that there is limited scope for interference in case of an appeal against acquittal and since the order impugned is reasoned one, no interference is called for.

8. Learned counsel for the respondents has also submitted that the respondents have been given clean chit by the learned Judge of the Trial Court after appreciating the evidence on merit and as such no interference is called for in the order of acquittal. In respect of appreciation of circumstantial evidence in the case of last seen together, learned counsel for the respondents has also relied upon the following judgments of the Hon’ble Apex Court :-

i) (2016) 4 SCC 96 (Shahid Khan Vs. State of Rajasthan)
ii) (2015) 4 SCC 393 (Ashok Vs. State of Maharashtra)
iii) (2014) 10 SCC 264 (Sangili alias Sanganathan Vs. State of Tamil Nadu represented by Inspector of Police.
iv) (2014) 12 SCC 279 (Krishnan @ Ramasamy & others Vs. State of Tamilnadu) which relates to evidence of abduction and murder and the evidence of last seen together.
v) 2007 LT (SC) 66 (Harishchandra Ladaku Thangu Vs. State of Maharashtra).

Placing reliance on the aforesaid judgments, learned counsel for the respondents has submitted that in a case of circumstantial evidence, the circumstances from which inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and there should be a complete chain of evidence consistent only with the hypothesis of guilt of the accused and totally inconsistent with his innocence and in such a case if the evidence relied upon is capable of two inferences then the one which is in favour of the accused must be accepted.

9. Heard the learned counsel for the parties and perused the record.

10. Before we proceed to deal with the evidence, it would be apt to be guided by a recent ruling of the Hon’ble Apex court in case of appreciation of evidence in an appeal against acquittal. The Apex court in the case of Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537 has held as under:-

“29. The learned counsel for the appellants also criticised the judgment of the High Court by submitting that the principles laid down by this Court in Padam Singh, Devatha Venkataswamy, Narendra Singh, Prasanna Das, Majjal, Lalita Kumari and Baby for exercise of appellate jurisdiction have not been followed. The appellate court should deal with reasons for acquittal and interfere only if acquittal is perverse. There is no doubt about the proposition that the appellate court has to arrive at an independent conclusion about the credibility of the evidence and to reappreciate the evidence to arrive at a just conclusion. If the appellate court is to reverse the judgment of the trial court, the reasoning of the trial court has to be adverted to and reversal of acquittal is permissible only if the view of the trial court is not only erroneous but also unreasonable and perverse. At the same time, the appellate court has full power to review the evidence and to reach at its own conclusion. The appellate court can set aside the acquittal if the acquittal is not justified. Of course, the appellate court has to consider the fact that the trial court has the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the acquittal. If two reasonable conclusions can be reached, the appellate court should not disturb the finding of the trial court. In the present case, the High Court has followed the above principles.
30. In Bava Hajee Hamsa while approving the reversal of acquittal by the High Court, it was held that erroneous approach of the trial court led to misdirection in appraising the evidence and the High Court was justified in rejecting the approach of the trial court and in analysing the evidence in its own way. This Court observed:
(SCC pp. 487-88, para 30) “30. We agree with the High Court that the very “scheme of approach” adopted by the trial Judge was faulty and misleading. It led to aberration and misdirection in appraising evidence, and vitiated his conclusions. The learned trial Judge started correctly when on a broad look of the evidence, he found the evidence of PWs 1, 8 and 9 prima facie acceptable. But after the second lap of discussion, he became sceptical; and reversed his mind at the end of the third round of circumgyratory discussion. In such cases where large number of persons are involved and in the commotion some persons cause injuries to others and the evidence is of a partisan character, it is often safer for the Judge of fact to be guided by the compass of probabilities along the rock-ribbed contours of the case converging on the heart of the matter. Once the court goes astray from the basic features of the case, it is apt to lose itself in the labyrinths of immaterial details, desultory discussion and vacillation arising from unfounded suspicions. This is exactly what has happened in the instant case.
Despite the pains taken and the conscientious effort put in to write an elaborate judgment, the trial Judge had, as it were, missed the wood for the trees. The learned Judges of the High Court were, therefore, right in discarding altogether the basically wrong “scheme of approach” adopted by the trial court, and in analysing the evidence in their own way.” (emphasis supplied) Now, on the touchstone of the aforesaid principles as laid down by the Apex Court, we proceed to record our finding.

11. So far as the death of master Gaurav is concerned, it was indeed a headless body of a boy around 14 years of age as recorded by PW/6 Dr.Athwal and has been identified by his father PW/12 Vinod Verma. Postmortem report dated 02.12.2005 has been exhibited as Ex.P/10 in which the cause of death is shown to be unknown. Dr.C.S.Jain PW/9 has examined the head which was recovered subsequently 04.12.2006 and he has stated that the possibilities of strangulation cannot be ruled out. Apparently, the body was of Gaurav Verma who was kidnapped on 22.11.2005, ransom calls were received by his parents as discussed in the subsequent paragraphs and his body was recovered on 01.12.2005, thus, it is a clear case of homicidal death of Gaurav. This Court has also no reason to disbelieve the finding recorded by the learned judge of the trial court in this behalf.

12. Coming to the kidnapping of master Gaurav, the missing person’s report No.41/2005 is proved as Ex.P/28. It was lodged by PW/11 Laxmi Devi, the mother of the deceased on 24.11.2005 stating that Gaurav who was studying in class 9 th was missing since 22.11.2005 from around 12 o’clock. In her statement she has also stated that on 27.11.2005 she received a call for ransom of Rs.5 lakhs and she was threatened that if the demand is not met, they would kill Gaurav soon thereafter, a caller ID was installed in her house and on 29.11.2005 at around 9 pm she received a call on her land line phone no.2538836 from the mobile no.9827532060 with the same demand and threat. Subsequently, FIR Ex.P/23 was lodged on 01.12.2005 by Sub-Inspector Umashankar Tiwari PW/16 at police station Tallaiya, Bhopal which set the investigation of the crime into motion.

13. So far as the involvement of accused Athar Ali is concerned, during the investigation the mobile no.9827532060 of Reliance Company from which ransom calls were made was traced back to one Sangram Singh which was obtained on the basis of a fake identity papers as Sangram Singh could never be traced but as the handset bearing IMEI (International Manufacture Equipment Identity) No.351478600620556 was seized from Athar Ali vide Ex.P/1 who was earlier using the same mobile set of Nokia company on the SIM No.9827082747. The recovery of handset from Athar Ali has been done by PW/17 Atik Ahmad Khan, I.O. and proved by Naresh Malviya PW/1. PW/1 Naresh has not been declared hostile and has supported the case of the prosecution. Thereafter, arrests were made of the accused persons Sharik, Athar Ali, and Salman on 01.12.2005 and around 9 days after 22.11.2005 body was got recovered by Sharik vide Ex.P/2 u/s.27of the Evidence Act and the body recovery memo is Ex.P/4 at around 5 pm in the evening in the presence of Vinod Verma PW/12, the father of Gaurav and one Gudaji Lal. PW/1 Naresh Malviya has been disbelieved by the learned judge of the trial court in para 41 of the judgement on the ground that he happens to be the maternal uncle of the deceased Gaurav. The aforesaid reasoning is based on a question put to this witness in his cross examination that he is the maternal uncle of Gaurav to which he has denied. In fact he has categorically stated that he is not related to the deceased Gaurav in any manner but PW/3 Pankaj Malviya has admitted in para 14 of his deposition that his mother’s name is Sushila Bai who has two other sisters viz. Laxmibai who is Gaurav’s mother and Kamlabai. He has stated that Naresh Malviya is his cousin brother as Naresh’s mother Kamlabai is the sister of his mother Sushilabai. Otherwise also no suggestion has been made to PW/11 Laxmi Devi that Naresh Malviya is her relative. Similarly, the question put to PW/12 Vinod Verma in his cross examination is that Naresh Malviya is the son of Laxmidevi’s sister which has also been denied by him, thus, to discard the evidence of Naresh at the outset only on the ground of his being a relative of deceased Gaurav was uncalled for. Hence the finding recorded by the learned judge regarding the evidentiary value of deposition of PW/1 Naresh Malviya is ex-facie wrong and cannot be sustained. Thus, the recovery of mobile handset with IMEI No.351478600620556 from Athar Ali stands proved.

14. Kapil Soni has been examined as PW/5. He happens to be Branch Manager of Reliance mobile company. He has exhibited P/7 and 8 which are covering letter and call statement of mobile no.9827532060 and mobile no.9827082747. Vide covering letter Ex.P/7 he has proved that mobile no.9827532060 belongs to Sangram Singh, 1100 Quarters, Arera Colony, Bhopal and also that mobile no.9827082747 belongs to Athar Ali, 7, Hawa Mahal Road, Bhopal and the call details of the aforesaid cell no. have been provided in Annexure-1 and 2 of the said covering letter. Annexure-2 has also been proved as Ex.P/6 In Annexure-1 it is clearly mentioned that from mobile no. 9827532060 bearing IMEI no.351478600620556 two calls were made on phone no.0755 2538836 (i.e. the phone no. of Vinod Verma and Laxmi Verma )on 27 and 29.11.2005 respectively. In Ex.P/8 it can be discerned that IMEI No.351478600620556 of both the mobile SIMs was the same. Meaning thereby that both these nos. were dialed from the same mobile handset which was earlier with Athar Ali and from which he had also called from his SIM no.9827082747. It is apparent from the testimony of this witness that no challenge has been made to Annexure-1 and 2 filed as the part and parcel of covering memo Ex.P/7 and thus the aforesaid call details stands proved. No challenge to the Ex.P/6, P/7 and Annexure-1 or Ex.P/8 has been made by the defence and no question has been put to this witness that mobile no.9827082747 does not belong to Athar Ali. The only question put to this witness is that no documents of Athar Ali have been seized from this witness, which in the considered opinion of this court cannot be said to discredit documents Ex.P/6, P/7 and P/8. Otherwise also Covering letter Ex.P/7 containing the names and details of Sangram Singh and Athar Ali are based on actual hard copy record Surprisingly, only a passing reference of this witness has been made by learned judge of the trial court in her judgement in which the prosecution has been lamented for faulty investigation. The documents so produced by Kapil Soni (PW-5) have been duly certified by the Reliance Telecom Limited, although no objection regarding compliance of provisions of Section 65-B of the Evidence Act has been raised by the parties, but this Court is of the opinion that the provisions of Section 65-B of the Evidence Act have been complied with.

15. The aforesaid facts are further substantiated by PW/22 W.M.Kumhare, Divisional Manager, BSNL who has produced the record of the landline phone no.2538836 and has admitted in his cross examination that on 29.11.2005 a call was made from mobile no.9827532060. So far as compliance of s.65-B of Evidence Act is concerned, similar is the situation in this case also as the landline data of Gaurav's parents landline phone is also certified by the office of the Divisional Engineer, Telecom Department, Bhopal.

16. When the question relating to 9827082747 was put to Athar Ali in his statement u/s.313 of Cr.P.C. that whether this SIM belongs to him or not, his only answer was, ‘maloom nahi’ (i.e. ‘I do not know’) and thus, he has failed to discharge the burden which was shifted on him in the form of electronics and documentary evidence. In the circumstances, in the considered opinion of this Court the call for ransom was made by Athar Ali only using his mobile hand set using the fake SIM in the name of Sangram Singh. In the circumstances, even assuming, for the sake of argument the recovery of mobile handset to be suspicious, the other clinching evidence in the form of electronics and other record cannot be brushed aside.

17. In this connection Rakesh Mohan Shukla, Sub-Inspector has been examined as PW/23. His job was to look after the electronic tracking and he has also verified the IMEI No. of Nokia mobile seized from Athar Ali and the SIM Nos. 9827532060 and 9827082747 which were used on the said handset. He has also stated that SIM no.9827082747 was inserted in the said handset till 22.11.2005 and also that on 27.11.2005 and 29.11.2005 from the same hand set two calls were made on the landline number using the SIM no.9827532060.

18. At this juncture it would be apt to refer to the Apex Court’s deliberations on the evidentiary value of IMEI No. In the case of Mohd. Arif v. State (NCT of Delhi), (2011) 13 SCC 621 the relevant paras read as under:-

“58. However, even before that the investigating agency started investigation about the cell number which was found written in the slip which was found in the morning at about 5-6 a.m. This cell number was to provide a ray of light to the investigating agency which had no clue whatsoever till then about the perpetrators of the crime. Ultimately, the investigating agency on the basis of that number being 9811278510 not only unearthed the conspiracy but also reached the main players including the present appellant.
59. The investigation suggests that the said mobile number slip was assigned to Inspector Mohan Chand Sharma (PW 229). This was a mobile number on the basis of the cash card.

At the relevant point of time, the cash card implied a SIM card, a SIM card loaded with prepaid value and such SIM cards were readily available in the open market. There was no necessity of registering with the service provider for obtaining a mobile connection through cash card. All that was required was activation by the service provider without which the cash card or the SIM card as the case may be could not be used.

60. It has come in the evidence that the active mobile phone has two components i.e. the mobile instrument and the SIM card. Every mobile instrument has a unique identification number, namely, instrument manufactured equipment identity (for short “IMEI number”). Such SIM card could be provided by the service providers either with cash card or post-paid card to the subscriber and once this SIM card is activated the number is generated which is commonly known as mobile number. The mobile service is operated through a main server computer called mobile switching centre which handles and records each and every movement of an active mobile phone like day and time of the call, duration of the call, calling and the called number, location of the subscriber during active call and the unique IMEI number of the instrument used by the subscriber during an active call. This mobile switching centre manages all this through various sub-systems or sub-stations and finally with the help of telephone towers. These towers are actually base transreceiver stations also known as BTS. Such BTS covers a set of cells each of them identified by a unique cell ID. A mobile continuously selects a cell and exchanges data and signalling traffic with the corresponding BTC. Therefore, through a cell ID the location of the active mobile instrument can be approximated.

61. As per the evidence of Inspector Mohan Chand Sharma (PW 229) he collected the call details of the said mobile number which was received in a computer installed in his office at Lodhi Road. He found that Mobile Phone No. 9811278510 was constantly used from Zakir Nagar and at that time the IMEI number of the cellphone instrument used was 445199440940240. It was found that the said number was also used for making calls to Pakistan. However, from 11-12-2000, the IMEI number of Mobile Phone No. 9811278510 was changed to IMEI No. 449173405451240. It transpired from the evidence that this IMEI number, that the Mobile Phone No. 9811278510 with the changed IMEI number had also made calls to landlines which were discovered to be belonging to BBC, Srinagar and BBC, Delhi. These calls were made almost immediately after the incident of shoot-out. This number was also used for making calls to Pakistan and pager numbers at Srinagar, 01949696 and 0116315904. The latter number was found to be in the name of Mohd. Danish Khan at 18-C, Gaffur Nagar i.e. the computer centre run by the appellant-accused. It was also found that from this number calls were made to 0113969561 which was found to have been installed at the shop of one Sher Zaman who was allegedly an absconding accused and the hawala operator.

62. The analysis of call details of Mobile No. 9811278510 suggested that the said mobile number was used in two mobile instruments having the aforementioned IMEI numbers. This was done in case of Cell No. 9811278510 with IMEI No. 445199440940240 only between 26-10-2000 to 14-11-2000 and recovered instrument having IMEI No. 449173405451240 between 11-12-2000 to 23-12-2000. While scanning earlier IMEI No. 445199440940240, it was found that one other Mobile No. 9811242154 was found to have been used in the said instrument. This instrument used Mobile No. 9811242154 between 22-7-2000 to 8-11-2000. From this, Shri Subramanium, learned Solicitor General urged that there were two mobile numbers, namely, 9811278510 and 9811242154 which were used and the two IMEI numbers, namely, 445199440940240 and 449173405451240. A pattern showed the use of the third number which was 0116315904, the number of the computer centre.

……….

66. The other witness who had produced the whole record was Rajiv Pandit (PW 98) who proved the call record and the report to the queries made to him by the investigating officer. Exhibit PW-98/A is the information in respect of Mobile No. 9811278510 which was active from 26-10-2000 to 23-12-2000. While Exhibit PW-198/D is the information stating that IMEI No. 449173405451240 was used by Mobile No. 9811278510 and that IMEI No. 445199440940240 was used by both mobile numbers, namely, 9811278510 and 9811242154. There is hardly any cross-

examination of this witness Rajiv Pandit (PW 198) to disbelieve his version. All this goes to suggest the definite connection between the two IMEI numbers and the two mobile numbers named above. It is needless to mention that this analysis painstakingly made by Inspector Mohan Chand Sharma (PW 229) led the investigating team to zero in on the appellant-accused on the night of 25-12-2000.” (emphasis supplied)

19. The validity of IMEI No. also came under scrutiny of the hon’ble Apex Court in the case of Gajraj v. State (NCT of Delhi), (2011) 10 SCC 675 the relevant paras of the same read as under:

“17. The first step in the process of investigation was the receipt of information from Minakshi (the wife of deceased Harish Kumar), that the deceased was using mobile phone, SIM No. 9871879824. Evidence on record indicates, that the aforesaid SIM number became dead on 23-7-2005 i.e. the date on which deceased Harish Kumar came to be murdered. In the process of investigation it then emerged, that the mobile handset bearing IMEI No. 35136304044030 was used with mobile phone, SIM No. 9818480558. This happened soon after the murder of Harish Kumar, on 23-7-2005 itself. The same SIM was used to make calls from the same handset up to 2-8-2005.

18. Through the statement of R.K. Singh, PW 22, Nodal Officer, Bharati Airtel Ltd., it came to be established, that mobile phone, SIM No. 9818480558 was registered in the name of appellant-accused Gajraj Singh. It is from the use of the mobile handset bearing IMEI No. 35136304044030, that the police came to trace the appellant-accused Gajraj Singh. It is only this aspect of the matter which is relevant for the purpose of present controversy. The use of mobile handset bearing IMEI No. 35136304044030 from which the appellant- accused made calls from his own registered mobile phone, SIM No. 9818480558, immediately after the occurrence of the murder of deceased Harish Kumar, was a legitimate basis for the identification of the appellant- accused. The appellant-accused was arrested on 6-8-2005. The nexus of the appellant-

accused with the deceased at the time of occurrence stands fully substantiated from the aforesaid SIM/IMEI details.

19. In the aforesaid sense of the matter, the discrepancy in the statement of Minakshi, PW 23, pointed out by the learned counsel for the appellant-accused, as also, the reasoning rendered by the High Court in the impugned judgment becomes insignificant. We are satisfied, that the process by which the appellant-accused came to be identified during the course of investigation, was legitimate and unassailable. The IMEI number of the handset, from which the appellant-

accused was making calls by using a mobile phone (SIM) registered in his name, being evidence of a conclusive nature, cannot be overlooked on the basis of such like minor discrepancies. In fact even a serious discrepancy in oral evidence, would have had to yield to the aforesaid scientific evidence. For the reasons recorded hereinabove, we find no merit in the first contention advanced at the hands of the learned counsel for the appellant-accused.” (emphasis supplied) Thus, from the aforesaid observation, it can be reasonably held that the validity of an IMEI number can never be doubted unless of course the same is challenged by producing cogent and clinching evidence. In the present case, as already stated above, there is no challenge by the accused Athar on this point and the validity of mobile no.9827082747 which according to the company record, belongs to Athar. Hence the role played by Athar in calling from his mobile to Laxmi Verma on 27th and 29th of November is positively established. In the circumstances, the finding recorded by the trial court regarding the non-culpability of the accused Athar cannot be sustained as the same is based on erroneous reasoning and is in fact perverse and it is held that it was Athar Ali who had called from his mobile handset to the parents of the deceased Gaurav and thereafter the headless body of Gaurav was found giving rise to the only hypothesis consistent with the guilt of Athar Ali. Consequently the charges against Athar Ali under Sections 364-A and 302 of IPC stands proved.

20. So far as the role of Sharik is concerned, on the basis of his memorandum u/s.27 of the Evidence Act Ex.P/2 was prepared and vide Ex.P/4, the body of master Gaurav was recovered. PW/1 Naresh is a witness of Ex.P/2. PW/4 Munshilal Gour is the witness to Ex.P/4 & 5 but he has been declared as hostile and so far as the testimony of Vinod Verma PW/12 is concerned, the same appears to be doubtful as according to him neither the witness PW/4 Munshilal nor accused Sharik accompanied him when the recovery of body was made as they were already on spot when he reached there. In the circumstance, the recovery of body at the instance of Sharik appears doubtful as has been rightly held by the trial Court.

21. Now coming to the role assigned to the respondent No. 3 Salman, he has been connected with the crime on the basis of the statement made by PW/3 Pankaj, who claims to have seen the said respondent on motorcycle along with Sharik and master Gaurav. Pankaj Malviya PW/3 is the most important witness who claims to have witnessed the accused persons taking the deceased on a motorcycle on 22.05.2005, where Raja @ Salman was driving the Passion motorcycle and Gaurav was sitting between him and Sharik. He also claims to be the son of Laxmidevi the PW/10’s real sister’s son. In his cross examination he has admitted that prior to 01.12.2005 he has never disclosed this fact to anybody although this witnesse’s statement u/s.161 has not been proved and confronted by the accused persons in the cross examination but PW/11 Laxmidevi, the mother of the deceased Gaurav has totally denounced this witness’s claim that he happens to be the son of her real sister. Thus in the circumstances, the testimony of this eye witness cannot be relied upon for two reasons firstly that it appears unnatural that after knowing that Gaurav who happens to be his cousin brother was missing since 22.11.2005, he would not disclose this fact to anybody in the family until the body was found and secondly, his statement is not duly corroborated by Laxmi Verma PW/11 who has refused to acknowledge Pankaj in any capacity. The hero Honda Passion motorcycle and the SIM No.9827532060 alleged to be recovered from Salman are also not beyond doubt for the reason that Ex.P/19 the memo u/s.27 of the Evidence Act was prepared on 20.07.2006 whereas the motorcycle was seized on 21.07.2006 and the mobile SIM was seized on 24.07.2006 in the presence of witnesses PW/13 Mahohar Pawar whose testimony only give rise to more doubt as according to him the motorcycle was seized after four days. The IO PW/16 Uma Shankar Tiwari’s deposition in this regard is also not satisfactory and does not inspire confidence. He has stated that he did not send the seized SIM No.9827532060 to the Reliance company for its verification hence it was the same SIM or not cannot be said with any certainty and remains highly doubtful.

22. The FIR Ex.P/23 u/s.364-A was lodged on 01.12.2005 by Laxmi Verma and recorded by Uma Shankar PW/16 during the enquiry of missing person’s report no.41/2005 also lodged by Laxmi Devi on 23.11.2005. Thus there is a delay of around 7 days in lodging the FIR from the date of missing person report and the reason assigned for the same is on account of enquiry on the basis of missing person’s report No.41/2005. It is true that, the FIR should have been lodged immediately after the incident was reported, but the delay is attributable only to the utter apathy of the Sub-Inspector Umashankar Tiwari PW/23. Despite it being lodged after a delay of around 7 days, its benefit cannot be extended to the accused persons as it does not bear the names of any of the accused persons and in fact in spite of the delay, it is lodged against the unknown accused persons u/s.364 of IPC, thus it cannot be said that it was an afterthought. On scrutiny, this court finds that in cross examination, Laxmi Devi PW/11 has not been asked even a single question regarding the delay caused in lodging the FIR. Thus no benefit of delayed FIR can be extended to the accused persons.

23. We have given anxious consideration to the judgments as cited by the learned counsel for the respondent but unable to hold that the present case squarely falls within the parameters as set out by the Hon’ble Apex Court in the aforesaid decisions regarding appreciation of evidence in the case of circumstantial evidence since we have already held that so far as the evidence of last seen together is concerned, the evidence of P.W.3 Pankaj who had last seen the accused persons on motorcycle with deceased Gaurav, the same is not reliable. Since the evidence in the present case is also in the form of electronic record and consideration of the same would certainly over-ride any oral testimony regarding the role assigned to Athar Ali as we have already held that the mobile hand-set bearing IMEI No. 351478600620550 was seized from Athar Ali and in the aforesaid mobile hand-set SIM bearing No. 9827082747 was used till 22.11.2005 and, thereafter, from the same mobile hand-set of aforesaid IMEI No., another SIM No. 9827532060 was used on 22nd & 29th November, 2005 to demand ransom on the land-line No. 07552538836. Thus, there is clinching evidence so far as the involvement of Athar Ali is concerned and his involvement in the crime cannot be brushed aside lightly.

24. In the final analysis, this Court finds that the prosecution has been able to prove its case so far as the respondent no.2/accused Athar Ali is concerned, looking to the fact that the incident took place in the year 2005, he was acquitted in the year 2008 and has joined the mainstream of life, it is not a fit case to impose capital punishment, instead he is liable to be convicted for the offences u/s 364-A and u/s 302 of IPC and is hereby sentenced to life imprisonment on both the counts with a fine of Rs.10,000/- each on both the counts, in default he is further sentenced to 3 months simple imprisonment on both the counts. Both the sentences to run concurrently. Whereas, the appeal preferred by the State against the respondent no.1 Sharik and respondent no.3 Salman is hereby dismissed. Athar Ali is on bail, therefore, he is directed to surrender before the CJM Bhopal within 30 days from today for undergoing the sentences as imposed above.

25. Accordingly, with the aforesaid observations, the Criminal Revision No.958/2008 and the Criminal Appeal No.548/2009 are hereby disposed of. 

          (S.K.Gangele)                           (Subodh Abhyankar)

               Judge                                             Judge

            04/05/2017                          04/05/2017


Ansari