Madhya Pradesh High Court
Sheikh Chand Kha @ Chandu Kha vs State Of M.P. on 28 June, 2018
Author: Virender Singh
Bench: Virender Singh
24. Criminal Appeal No.1099/2008
HIGH COURT OF MADHYA PRADESH: BENCH
AT INDORE
Division Bench: Hon'ble Shri Justice Vivek Rusia
and
Hon'ble Shri Justice Virender Singh
Criminal Appeal No.1099/2008
Sheikh Chand Kha @ Chandu Kha S/o Haji Sheikh
Mehmud
Vs.
State of Madhya Pradesh
Shri PK Shukla, learned counsel for the appellant.
Shri Abhinav Malhotra, learned counsel for the
respondent/State.
Criminal Appeal No.1148/2008
Idrish Kha S/o Kallu Kha
Vs.
State of Madhya Pradesh
Shri SK Meena, learned counsel for the appellant.
Shri Abhinav Malhotra, learned counsel for the
respondent/State.
********************************************
Criminal Appeal No.1150/2008
Akabar Khan S/o Gulab Khan
Vs.
State of Madhya Pradesh
Shri R.R Trivedi, learned counsel for the
appellant.
Shri Abhinav Malhotra, learned counsel for the
respondent/State.
********************************************
Whether approved for reporting: Yes/No
24. Criminal Appeal No.1099/2008
JUDGMENT
(Delivered on 28/06/2018) Per : Virender Singh, J. :
1. All these three appeals arising out of a common judgment and order dated 10.09.2008 passed in Sessions Trial No.37/2007 by Additional Sessions judge, Narsinghar District Rajgarh, therefore, they have been heard analogously and are being decided by this common judgment.
2. All the appellants of their respective appeals have been convicted for the offences under Sections 364/34, 302/34, 201 read with Section 302 of IPC and have been awarded 10- 10 years rigorous imprisonment and fine of RS.5,000-
5,000/-, life imprisonment and fine of Rs.5,000-5,000/- and 7-7 years rigorous imprisonment and fine of Rs.5,000- 5,000/- respectively. In default of payment of fine they have to further undergo 1-1 year rigorous imprisonment for each default. It is further directed that all the jail sentences shall run concurrently.
3. One Iqrar Khan was also made accused by the police. He was charged under Section 201 r/w 302 IPC but acquitted after the trial.
4. Facts relevant to the present appeals in short are that the deceased Shailendra S/o Ramchand Gupta was running a hotel at bus stand of Narsinghgarh. Some time prior to his death, he also started salvage trading alongwith Chandu @ Shaikh Chand and Akbar of Nazirabad. The agreed mode of the business was that the appellant Akbar will do sale-
24. Criminal Appeal No.1099/2008 purchase, Chandu will assist him and Shailendra will invest money and profit shall be divided amongst all of them in equal share.
5. A meeting was fixed between them (Chandu, Akbar and Shailendra) for accounts clearing on 29.11.2016. At about 5 o'clock in the evening, the deceased was at his hotel, all the appellants came there and asked him to follow them and they all proceeded for the meeting, but thereafter the deceased was never seen alive.
6. When deceased did not return home till late evening, his relatives started searching him. They found his Hero Honda Splender motor cycle bearing Number MP-39-B-9560 lying near Dargah of Kanya Shala Road. Suspecting some untoward incident, they reported the matter to the police in the night itself. The police registered a Missing Person Report (Exb.P/6) at 00:10 A.M. on 30/11/2006 and deployed ASI Prem Singh Chauhan for inquiry, who recorded statement of servant of hotel of the deceased Laxman and nephew of the deceased Umesh Gupta in the night itself, who revealed that in the evening when they were with the deceased at the hotel, the appellants came there and took him with them assuring that they will clear the accounts of the business and will give him his share. On this basis, the police registered crime no. 480/2006 u/S 363, 364/34 of IPC (Ex. P/24).
7. On 30.11.2006 at 3:50 A.M. ASI Prem Singh arrested Iqrar Khan, driver of TATA 407 bearing registration no. MP- 06-E-0877 vide Ex.P/13A, who revealed that on 29.11.2006
24. Criminal Appeal No.1099/2008 at 10:00 in the night Chandu alongwith co-accused Idris and Akbar got loaded a bag in his vehicle along with some other salvage from his godown and asked him to take them towards Guna. On the way, after crossing Ruthiyayi Police Chowki, they threw the bag in Gader Ghati (a Valley), poured diesel and burnt it. At that time, he came to know that there was some human body in the bag (Ex.P/10). He took the police to the spot, from where the police recovered a burnt body on 01.12.2006 at 06:10 A.M., which was identified by cousin Moolchand as the deceased Shailendra (Ex.P/1 & 11).
8. As the spot of recovery of the dead body was under the jurisdiction of the Police Station Dharnawada, the Police Narsinghgarh informed the concerned Police Station before recovery of dead body, who also registered a Merg and did all further investigation like preparation of Panchnama Lash, Spot map, seizure of ash and burnt bones of the deceased, ash of bag, a piece of silver coloured metal, burnt & plain soil etc. (Ex.P/3, 12, 63) and sent the brunt body for autopsy to the District Hospital, Guna, where on 02.12.2006 Dr. B.K. Athwal and Dr. Milind Bhagat examined the body and opined that the death was due to strangulation within a period of 2-3 days and was homicidal in nature (Ex.P/60). They preserved Visera, tibia bone, skull & mandible, scalp hair, burnt cloth & Jute bag's piece, and a metal ring snake design and handed over to the police. All these articles were seized by the Police Narsinghgarh vide seizure memo Ex.P/43. The body was then sent to Medico Legal Institute,
24. Criminal Appeal No.1099/2008 Gwalior for further examination.
9. On 01/12/2006 at 16:50 ASI Prem Singh searched godown of Chandu after breaking its lock and seized a pair of old used black shoes, two steel glasses, a piece of card board, a piece of nylon rope having a knot at one end and cut mark at other end, a button in which a piece of thread was stuck, a working calculator having name of the deceased, a half burnt candle, blood stains from the floor and a bodkin (Suja) with a packthread/twine in the head hole (memos Ex.P/8&9). Officer of Scene of Crime, Mobile Unit, Rajgarh B.S. Thakur and Finger print Expert Anil Kumar Rai also visited the godown and lifted chance finger prints found on the steel glasses/tumblers (Ex.P/30). On 02/12/2006, SHO, PS Narsighgarh Ravindra Chabriya arrested the appellants and on their disclosure; seized a wallet having photograph of the deceased from Chandu, a nylon rope from cut from one end by some sharp object, a 5 litre cane of oil and a full sleeves shirt with a missing button from Akbar and a Bajaj Discovery motorcycle from Idris (Ex.P/13 to 21) and sent them all to the FSL for forensic examination. Senior Scientist Ms. Harsha Rai (PW/28) opined that the button found from the godown of Chandu was missing button of the shirt of Akbar. Similarly both the pieces of ropes were found of the same rope (Ex.P/55).
10. The Police also obtained finger prints from the appellants (Ex.P/27) and sent them to the expert. Expert Dr. Anil Kumar Rai (PW/18) compared both admitted and disputed finger prints and opined that the chance finger prints
24. Criminal Appeal No.1099/2008 found on the steel glasses seized from the godown of Chandu were of Akbar and Idris (Ex.P/30 to 41).
11. The Police sent the button, a piece of nylon rope and blood scrapped and seized from the godown of Chandu and a blood stained shirt, a piece of rope seized from Akbar and also his blood sample. On comparison by the FSL and CFSL, they all were found of the same origin (Ex.P/52&55 and Ex.D/12A). Smell of kerosene was also found present in the soil and other articles recovered and seized by the police from the place of recovery of dead body (Ex.P/53).
12. The Police also seized photographs of the deceased and sent them alonwith skull with mandible to the FSL. After comparing both of them, Senior Scientist of FSL Mr. Rajkamal Shrivastav (PW/27) opined that the skull was of the deceased (Ex.P/54).
13. The Police seized a register from the wife of the deceased Anita purportedly prepared by the deceased containing some entries related to the scrap trading started by the deceased with the appellants (Ex.P/5 Art./A).
14. An identification parade was conducted by Naib Tahsildar N.S. Chauhan (PW/11) in which the wife of the deceased Anita (PW/4) identified the ring, shoes, wallet and calculator of the deceased.
15. After completion of the investigation, the Police filed the charge-sheet. The appellants were charged, tried, convicted and sentenced as stated in para-2 above.
16. The appellants have preferred these appeals on the grounds that the judgement and order of the learned trial
24. Criminal Appeal No.1099/2008 Court is contrary to the law and the facts of the case. The prosecution could not establish that the dead body recovered from Gader Ghati was of Shailendra Gupta. The dead body was recovered in burnt condition. Its identification was not possible. DNA profile of parents of Shailendra did not match with the DNA profile of tibia bone of the dead body recovered by the police. Super imposition test of photographs with the skull of the dead body recovered is also doubtful and unreliable. Therefore, they cannot be convicted for committing murder of Shailendra.
17. It is further submitted that the prosecution could not produce any direct evidence. There is no eye-witness of the alleged incident and the case of the prosecution solely depends on the circumstantial evidence and the circumstances putforth and relied upon by the prosecution could not be proved beyond reasonable doubts nor their chain could be established. There are material contradictions, discrepancies, exaggeration and improvements in the statements of the witnesses; which have been ignored by the learned trial Court. The learned trial Court has misread and misappreciated the evidence produced by the prosecution. The judgement is erroneous on facts as also in the law and is only based on the surmises and conjectures. The learned trial Court has failed to appreciate properly the legal citations placed in service by the counsel for the appellants.
18. All the main witnesses co-brother Dr. Mahendra Gupta PW-3, servant Lakshman PW-6, wife Anita Gupta PW-4, nephew Umesh Gupta PW-10 and Dharmendra PW-9 are
24. Criminal Appeal No.1099/2008 either relatives or otherwise interested witnesses. They have narrated the story contrary to each other. Their statements are full of contradictions and omissions and are unbelievable. Independent witnesses have not supported the case of the prosecution.
19. Missing person report was registered at 00:10 hours on 30.11.2006 and only after 10 minutes at 00:20 hours, the police registered the FIR. This makes the case of the prosecution doubtful. Therefore, the conviction of the appellants is not sustainable and they are entitled for acquittal.
20. Per contra, learned Public Prosecutor has supported the findings of the learned trial Court and prayed for dismissal of the appeals.
21. We have considered the rival contentions of both the parties and have gone through the record.
22. All the appellants have not disputed the fact that on 29.11.2006, Shailendra Gupta @ Kallu did not return home in the evening. This is also not disputed that on 30.11.2006, the police recovered a burnt dead body from Gader Ghati, Near Ruthiyai Police Out post, District Guna. Cousin of Shailendra Gupta, Mulchand Gupta PW-1 had identified the dead body as of Shailendra Gupta. The grounds of identification mentioned in the Identification Memo that the deceased was identified by Mulchand on the basis of flat foot and recovery of snack designed copper ring have been disputed by the appellants on the ground that the fact that Shailendra Gupta had flat foot is not mentioned in Missing
24. Criminal Appeal No.1099/2008 Person Report or in any Merg intimation and recovery and statements of the witnesses regarding recovery of copper ring are contrary to each other as Mulchand and Dhamendra (PW/1&9) have stated that it was lying near dead body while it is mention in the Identification Memo and is stated by the ASI Prem Singh PW-16 and Dr. Milind Bhagat PW-25 that it was recovered from finger of the dead body. It is the argument of the learned counsel that this copper ring was implanted by the police to establish identity, but these grounds are not sufficient to discard the statement made by the witnesses on oath.
23. Looking to the nature of the documents, it was not required or expected from the witnesses that they describe such insignificant mark of identification in the Missing Person Report or Merg intimation. Considering the condition of the dead body, it appears that substantially there is no contradiction in the statements of the witnesses and difference pointed out by the leaned counsel for the appellants is only a difference of expression. Recovery of copper ring is mentioned in the document Ex.P/1 prepared at the time of recovery of the dead body. All three witnesses have proved this recovery. Presence of this ring is also backed by statement of Dr. Bhagat. It is highly improbable and unnatural that when someone is going to see a dead body, he will carry something with him with intent to implant it to prove that the dead body is of his relative, more particularly when there is no reason to claim an unknown dead body as dead body of his brother. Therefore, in spite of
24. Criminal Appeal No.1099/2008 minor variation in the statements of the witnesses as claimed by the defence, identification of dead body cannot be doubted.
24. Apart from that the dead body was not fully brunt. It has clearly come in the statements of Mulchand PW-1 and ASI Shivbhawan Tiwari PW-20 that the dead body was half burnt and in their cross-examination, they clearly denied suggestion of the defense that the face, arms and legs of the dead body were fully burnt instead they have stated that the face of the body was half burnt, some parts of the body were burnt while some parts of the body were not burnt. Except the leg, all parts of the body were intact. It is mentioned in the Identification Memo that Mulchand had indentify the dead body on the basis of features of the face also. This fact is unchallenged. In that condition, identification of dead body by cousin of Shailendra cannot be doubted. Therefore, the contention of the appellants in this regard is not acceptable.
25. Even otherwise, Dr. Rajkaml Shrivastav PW-27 has stated that he had conducted Super Imposition Test and found that skull with mandible was of Shailendra Gupta. Though, this test is also challenged by the appellants on the ground that recovery of positive photographs is doubtful as the fact is mentioned in the letter sent to the FSL for conducting Super Imposition Test even prior to their seizure and after sending the letter these photographs have been shown seized. But, this question was not raised during cross examination of Dr. Shrivastav and further it is not disputed
24. Criminal Appeal No.1099/2008 that positive photographs and its negative with which the skull was compared were of Shailendra. Therefore, any discrepancy in seizure of these photographs does not make the Super Imposition Test doubtful.
26. The appellants have raised a question regarding failure of DNA Test to establish identity of the dead body recovered from the Gader Ghati, but it would be suffice to say that in this case, the police have tried to establish identity of the dead body through various mode or methods like identification from relatives, Super Imposition Test and DNA test etc. Failure of anyone of them does not make the other test report doubtful. Even otherwise, report of Senior Scientist Mr. B.K. Mahapatra of Central Forensic Science Laboratory Ex.D/12-A states that only partial DNA profile could be generated from the tibia bone sent to him. It appears that for this reason only, comparison was not done with the DNA profile of blood sample of Ramchandra and Ms. Kamla Gupta who are the parents of the deceased. In this state, it cannot be said that the DNA profile of parents did not match with the tibia bone of dead body recovered by the police and sent to the CFSL for DNA comparison. Therefore, the argument of the learned counsel for the appellants fails.
27. Thus, finding of the learned trial Court that the dead body recovered by the police was of Shailendra Gupta @ Kallu is well founded and we also confirm the same.
28. As no direct evidence is available in this case, the prosecution depends on the circumstantial evidence. The circumstance, which the prosecution could brought on record
24. Criminal Appeal No.1099/2008 can broadly be segregated in the following four categories:
(i) The deceased and the appellants have started scrap trading in partnership and the deceased had financed that business.
(ii) A meeting was fixed on 29/11/2006 in the evening for settlement of accounts and distribution of profit of that business.
(iii) The deceased was last seen alive in the company of the appellants.
(iv) Scientific evidence available against the appellants.
29. Anita PW-4 has stated that before death; her husband told her that he has started scrap trading in partnership of Chandu and Akbar and 8-10 days prior to his death he has given them Rs.7-8 lacs to purchase scrap from a factory situated in Gwalior. She has further stated that on the fateful day of the incident at about 2-3 P.M. her husband, when he came for lunch as usual, informed her that Chandu and Akbar are coming in the evening for settlement of accounts of their business of scrap treading. An inanimate attempt is made by the appellants to challenge these facts in cross-examination of Anita, but in vain and all these facts have remained intact.
30. Anita has also stated that besides running a restaurant; her husband was also doing money lending and for that purpose he used to maintain a register of all transactions in his own handwriting. The police have seized this register Article-A vide seizure memo Ex.P.5 (Anita PW-4, Mulchand PW-2 and R.C. Pathak PW-24). These facts have also not been substantially challenged by the appellants in the cross-
24. Criminal Appeal No.1099/2008 examination of the witnesses. Further, these are corroborated by register Ex.P/5 seized during investigation. In this register, entries of transaction with the appellants Chandu and Akbar spreads in several pages, which are also unchallenged.
31. Thus, it is clear that the deceased and the appellants Chandu and Akbar were well known to each other. The deceased had invested substantial money in scrap trading and on the date of incident, they were going to sit together for accounting and profit sharing and also to refund money to the deceased.
32. Lakshman PW-6; who is undisputedly working on the restaurant of the deceased as 'order master' has stated that on the date of incident; when he was busy with customers and the deceased was sitting at the restaurant, the appellants came; talked with him (the deceased) for some time and then took him with them. When he did not return till 10:00 in the night, he shut the restaurant, went to the house of the deceased and handed over keys to his wife. As she asked about the deceased, he informed that the deceased had gone with the appellants and did not return thereafter.
33. Umesh PW-10, who is nephew of the deceased and works as medical representative, has stated that on the date of incident, he picked up a pre owned fridge purchased from his another uncle Dr. Mahendra Gupta and brought it at bus stand to take it to his village by bus. At the bus stand, he tried to load the fridge in the bus scheduled to depart at 5:00 P.M. but could not succeed due to shortage of space. He came
24. Criminal Appeal No.1099/2008 back at the restaurant of the deceased as the next bus was at 7:00 P.M. and had a chat with him for some time. The deceased told him about his new business of scrap trading. He also revealed that today the appellants are coming and they all will sit together to complete the book keeping and clear the accounts. The deceased asked him to go and meet his aunt (wife of the deceased). He went to his house and came back at about quarter to 7:00 P.M. The deceased was not there. He waited for him till about 8:00 P.M. and thereafter called his aunt and asked for him. His aunt informed that he might have gone with Chandu as a meeting was scheduled between them for book keeping of scrap deals. He (Umesh) took mobile number of Chandu and called him, who informed that he had seen the deceased last at about 4-4:30 in the vegetable marked purchasing some vegetables.
34. Anita PW-4 has stated that when Umesh informed that her husband has not returned for a long time, she called Chandu on his mobile, who replied that he had seen the deceased last at about 4-4:30 in the vegetable marked purchasing some vegetables. When her husband did not return till 9:00 P.M., she started worrying. She called neighbours, Councillor Bhola and also her brother-in-law (husband of her sister) Dr. Mahendra Gupta and informed them about the fact. Apprehending some mis-happening, they all started searching him, but did not find any clue. During the search, Rajesh Sharma PW-14 informed them that around 10:00 in the night, after closing his shop, when he was
24. Criminal Appeal No.1099/2008 coming to his house, he saw the motorcycle of the deceased standing on the road, but the deceased was not there. Family members of the deceased picked up the motorcycle and bring it at home. After this recovery, Mahendra Gupta and Moolchand PW-1 discussed the matter and decided to inform the police. Mahendra went to the Police Station in the night and informed the police. The police Registered Missing Person Report and launched a search operation and on the instigation of the Ikrar, recovered the dead body of the deceased.
35. Narayan Bathan PW-2 has stated that on the date of incident he saw Chandu alongwith two other persons near pond of his village Bada Bondra in the evening at about half past four or quarter to five.
36. Anil Shukla PW-5 has stated that he is well acquainted with Chandu and on the date of the incident had seen him about 3 KM away from Narsighgarh.
37. Rambabu Gupta PW-7 has stated that on the date of the incident, at about 7:00 in the evening, Chandu had purchased a candle and two match boxes as usually there was power cut between 7 - 8 P.M.
38. ASI Prem Singh Chauhan PW-16 has stated that he took Ikrar in custody and interrogated him, who revealed that the appellants got a bag loaded in his TATA 407 vehicle and took him towards Guna and on the way in Gader Ghati near Ruthiyai Police Out Post, they threw the bag, poured diesel on it and put it on fire. Later, he came to know that there was some dead body in that bag. Mr. Chauhan has further stated
24. Criminal Appeal No.1099/2008 that after recovery of dead body with the help of police of Police Station Dharwada, District Guna leaving the other colleagues police officials on the spot, he came back and went to the godown of Chandu situated in Len Mohalla, Narshinghgarh alongwith the officers of FSL. The godown was locked, he called Panch Witnesses, got the godown open by breaking the lock with the help of Deepak Songra PW-8, who has supported the statement of Mr. Chauhan. The fact that the godown belongs to Chandu is not contested by the appellants. Otherwise also it is proved by on oath statement of Branch Manager, Bank of India, Narsinghgarh, Ramkripal Gupta PW-13.
39. ASI Mr. Chauhan has further stated that he inspected the godown and found and seized a pair of old used black coloured shoes of 9 number size of Action company, a Casio KD 5569 calculator, two steel tumblers, an earthen pot (Matka), a yellow colour nylon rope cut with a sharp object at one end and a knot at the other end, a piece of jute bag lying in bathroom, a piece of cardbord box, blood stains from the floor, a button with a piece of thread stuck therein, half burnt/melted candle and bodkin (Suja) with packthread therein (Ex.P/36). Deepak PW-8 has supported the statement of Mr. Chauhan.
40. Dr. Anil Kumar Rai, PW-18 and Dr. B.S. Thakur PW-19 have stated that on 01.12.2006, they had visited godown of Chandu and lifted finger prints found on steel tumblers kept on earthen pot. As per his direction, the police later provided him admitted finger prints of the appellants.
24. Criminal Appeal No.1099/2008
41. Ravindra Chawadiya, Sub-inspector PW-7 has stated that he interrogated the appellants Chandu, Akbar and Idrish who revealed information regarding wallet of the deceased, part of nylon rope and blood stained shirt and motorcycle respectively and on their pointing out, he recovered all these articles from their respective possession. Wallet of the deceased was containing Rs.15/-, photograph of the deceased and 3 receipts. A button was missing from the shirt seized from the appellant Akbar. Piece of nylon rope seized from possession of Akbar was having cut mark by sharp object at one end and knot at the other end.
42. Dr. Mustafa Raja PW-12 has stated that he had taken blood sample of the appellant Akbar for biological test to ascertain as to whether the blood collected from the crime spot is blood of the deceased or the accused (Ex.P/27A).
43. All these articles were sent to the FSL. Dr. Rai PW-18 has stated that he compared both the chance and the admitted finger prints and found that chance finger prints matched with the admitted finger prints of the appellant Akbar and Idrish (Ex.P/35). Ms. Harsha Rai, Senior Scientist, FSL, Sagar PW-28 has stated that she compared a button (seized from the godown of Chandu) and a shirt (seized from the appellant Akbar) and found that the button found in the godown of Chandu was missing button of the shirt recovered from the appellant Akbar (Ex.P/52). On comparison both pieces of nylon rope were found of the same rope (Ex.P/55) and DNA profile generated from the blood scrapping recovered from the floor of godown of Chandu and from the
24. Criminal Appeal No.1099/2008 shirt seized from Akbar are consistent with the DNA profile of Akbar (Ex.D/12A).
44. Naib Tehsildar N.S. Chouhan PW-11 has stated that on the request of Police, he called Anita for identification of a copper ring, calculator and nylon shoes, who identified them as her husband's articles.
45. All these witnesses remained intact and could not be rebutted even after lengthy cross-examination by the appellants and their statements are well supported and corroborated by the documents prepared during investigation. All this evidence has been discussed in detail by the learned trial Court and therefore, reverberation of the same is not required.
46. When we put all this evidence together in a sequence, we found that the deceased and the appellants Chandu and Akbar were known to each other, they have started treading in scrap in partnership, the deceased funded this business, on 29.11.2006, they were going to sit together to clear the accounts and to share the profit and refund the money to the deceased, in the evening, the appellants took the deceased with them, thereafter, he was never seen alive and his dead body was found near District Guna, his belongings like shoes and calculator were found in the godown of Chandu, his wallet was recovered from possession of Chandu, finger prints of Idrish and Akbar were found on the steel glasses recovered from the godown of Chandu, missing button of the shirt of the appellant Akbar was recovered from the godown of the appellant Chandu and calculator and Shoes of the
24. Criminal Appeal No.1099/2008 deceased were also recovered from the same godown. All these ocular as well as documentary and scientific evidence is more than sufficient to establish the fact that none else but the appellants have caused the incident.
47. Contentions of the counsels for the appellants are that all the main witnesses of the prosecution Dr. Mahendra Gupta, Mulchand, Anita, Umesh and Lakshman and other witnesses are either relative or interested witnesses, their statements are full of contradictions, omissions and exaggerations on material points and are contrary to each other. The prosecution neither could establish circumstances relied upon nor the chain of circumstance could be completed. Except Lakshman, no other witness Anita, Mahendra or Umesh have stated that they have last seen the deceased in the company of the appellants. Lakshaman was not acquainted with the appellants and he was not taken to identify them during investigation. Lakshman has stated that he revealed before wife of the deceased Anita at about 10:00 in the night that the deceased has gone with the appellants while Anita, Umesh and Mahendra all have stated that they have started search for the deceased much prior to the time claimed by Lakshman. All these witnesses Mahendra, Anita, Umesh and Lakshman have claimed that they were aware of the fact that the deceased had last seen in the company of the appellants while in missing person report lodged in the midnight at about 12:10 , this fact is not mentioned in the main column prescribed for particulars of information, later, the prosecution has appended this fact at the end of this
24. Criminal Appeal No.1099/2008 report Ex.P/6. Even, in this appended note also, it is not mentioned that the deceased had gone with the appellants, only this is mentioned in this note that the deceased has revealed before Umesh at about 4:45 P.M. in the evening that a meeting is to be held between Chandu and him for settlement of accounts. If all these witnesses were aware that the deceased had gone with the appellants then there was no reason for them not to mention this fact in missing person report. This makes their statements doubtful. The prosecution has failed to prove motive for the offience. The missing person report was lodge in the night at about 12:10 and just after 10 minutes FIR was registered at about 12:20 in the night. This shows manipulation of the police and renders its case unreliable. Godown of Chandu is an open place and accessible to all. Evidence regarding sealing or opening the godown after breaking the lock is contrary and unreliable. Hand writing of register Article-A is not got compared by the prosecution, therefore, it can not be said that the register Article-A was in the hand writing of the deceased. Independent witnesses have not supported the case of the prosecution. Information given by the co-accused Ikrar in his statement recorded under Section 27 of the Evidence Act, is not admissible against other appellants. The learned trial Court has committed error in relying upon such memo statements of co-accused. The trial Court has misread and mis-appreciated the evidence on record. The case of the prosecution is doubtful. Therefore, the appellants are entitled for acquittal.
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48. All the contentions raised by the learned counsel for the appellants are same which were raised before the learned trial Court. The learned trial Court has dealt with all theses contentions in para no.40 onward of the impugned judgement. Reasons assigned by the learned trial court for dismissal of these contentions are well founded and supported by the evidence oral and documentary and all the evidence is appreciated in correct perspective. We have re- appreciated them with reference to the evidence particularly the scientific evidence whose impartiality, reliability and credibility can not be doubted and we found that only this evidence alone is sufficient to reach on the conclusion which the learned trial Court has arrived at. The learned trial Court has appreciated all the circumstances in detail with reference to the contentions of the appellants, reiteration of the same is unnecessary as we are in consensus with the learned trial Court.
49. Conversation between Anita, Umesh and Mulchand appears very natural. Similarly, the conduct of Lakshman also appears natural. Though there are some discrepancies in words and timing, but crux of their statement that at lunch, the deceased told his wife that he is going to sit with the appellants in the evening for settlement of accounts and he revealed the same fact before Umesh remained the same. When the deceased did not come back in the late night, they worried about him, they contacted each other, started search for him and in this procedure they also tried to contact the appellant Chandu and they visited his godown also. If they
24. Criminal Appeal No.1099/2008 would have not been aware regarding the meeting of the deceased with the appellants, they would have not contacted or would have not visited the godown of Chandu. There is no evidence that during this time, any of them (Anita, Umesh and Mahendra) had come in touch with the Lakshman who was busy with the customers at the restaurant and not aware about any mis-happening with the deceased. There is nothing unnatural in his conduct, if he had closed the restaurant at 10:00 P.M., went to the house of the deceased and handed over the keys to his wife and at that time, informed his wife that the deceased had gone with the appellants. He has further submitted in his statement that appellant Chandu and Akbar used to come at restaurant, therefore, he was acquainted with them. He also identified them in the Court. Nothing is there on record to disbelieve all this natural statements of the witnesses.
50. Wife of the deceased Anita has stated that the entries in the register Article- A are in hand writing of her husband and this fact has not been challenged during cross-examination of the witnesses, therefore, now, the appellant cannot go back stating that the prosecution has not compared the hand writing of the register with any admitted hand writing.
51. Undisputedly, godown belongs to the appellant Chandu, several articles were recovered from this godown and no explanation is put forth by the appellants for this recovery. Evidence regarding recovery and identification of shoes, calculator etc. is un-rebutted and fully dependable.
52. Nothing contrary is demonstrated by the learned
24. Criminal Appeal No.1099/2008 counsel for the appellants against the scientific evidence produced by the prosecution. Finger prints of Akbar and Idrish were found in the godown. DNA profile of blood found on the floor of godown, on the Shirt of Akbar was matched with the DNA profile of Akbar. Similarly, evidence regarding pieces of nylon rope recovered from godown and from possession of Akbar were matched and matching of button recovered from the godown and shirt recovered from possession of Akbar also fortified the case of the prosecution. These are the evidences, which directly establish involvement of the appellants in the alleged crime. To bolster this conclusion recovery of shoes and calculator and other belongings of the deceased from godown of Chandu and its identification by the wife of the deceased Anita is also available on record. Impartiality or credibility of officials of FSL who are examined by the prosecution, is neither questioned by the appellants during cross-examination nor do we find any fact which adversely affects their credibility.
53. Considering all the evidence produced by the prosecution, in its totality, we find that sufficient evidence is produced by the prosecution to indicate that none else then the appellants had caused the alleged incident i.e. murder of the deceased Shailendra
24. Criminal Appeal No.1099/2008 @ Kallu, therefore, the learned trial Court has rightly held them guilty. So far as punishment awarded by the learned trial Court is concerned, we are satisfied on this account also and we also confirmed the order of the learned trial Court regarding disposal of the property.
54. With the aforesaid, all the criminal appeals stand dismissed.
(Vivek Rusia) (Virender Singh)
Judge Judge
amit
Digitally signed by
Amit Kumar
Date: 2018.06.28
17:39:33 +05'30'