Madhya Pradesh High Court
Neelu @ Nilesh Koshti vs The State Of Madhya Pradesh on 1 December, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COUR OF MADHY PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No.627 of 2016
BETWEEN:-
NEELU @ NILESH KOSHTI S/O DILIP, AGED
ABOUT 30 YEARS, R/O: 727/2, MALVIYA
NAGAR, INDORE (MADHYA PRADESH)
.....APPELLANT
(SHRI SANTOSH KHOWARE - ADVOCATE APPEARING ON BEHALF OF
SHRI VISHNU KUMAR DUBE - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION
HOUSE OFFICER THRU. P.S. PALASIYA,
INDORE (MADHYA PRADESH)
.....RESPONDENT
(SHRI KUSHAL GOYAL - GOVERNMENT ADVOCATE)
____________________________________________________________
Reserved on : 22/11/2023
Pronounced on : 01/12/2023
____________________________________________________________
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, the Justice Anil Verma pronounced the
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 04-12-2023
14:27:47
2
following:
JUDGMENT
This criminal appeal preferred by the appellant under Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment dated 31.10.2012 passed by the Additional Sessions Judge, Indore in Sessions Trial No.48/2011, whereby the appellant has been convicted for the offence under Section 302 and 201 of the Indian Penal Code, 1860 (in short 'IPC') and has been sentenced to undergo Life Imprisonment with fine of Rs.1,000/- and 7 years R.I. With fine of Rs.1,000/- respectively with usual default stipulation.
2. Brief facts of the case are that during the investigation of Crime No.584/2009 registered at P.S. Palasiya, Indore under Sections 302 and 201 of IPC, Investigating Officer S.M. Jaidi (PW-28) recorded the discovery statement of the accused/appellant and on the basis of the discovery statement and instance of the appellant recovered dead body of the deceased Pinki @ Muskan from a well situated near by Tasalli Dhaba and from the same well decomposed body, skeleton, clothes and other articles of deceased Bhavna were also recovered. During the investigation, it has been gathered that appellant Nilesh alongwith his friend Mukesh murdered his wife Bhavna. Deceased Bhavna contacted love marriage with the appellant and they have blessed with a child, but after sometime, appellant made illicit relation with Pinki @ Muskan and Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 3 some quarrel has been taken place between them and due to which appellant murdered his wife Bhavna by strangulation and causing fatal injuries to her by using some sharp edged object and in order to destroy the evidence of murder, he kept her dead body in an empty sack and thrown into said well. Postmortem of the decomposed dead body was conducted by the Dr. N.M. Unda (PW-18). From the DNA analysis by matching the blood samples of parents of deceased with the seized bones, it has been proved that it was dead body of the deceased Bhavna.
3. The prosecution story in further is that Inspector S.M. Jaidi (PW-28) on 17.8.2009 during the investigation recorded the discovery statement of the accused/ appellant Nilesh and on the basis of said statement, he has recovered human skeleton and some of the clothes from the said well. Dehati Nalishi was lodged by the appellant himself and during the merg inquiry, Inspector S.M. Jaidi (PW-28) prepared spot map and collected the medical papers of deceased's delivery. All the seized articles were sent to the FSL, Sagar for its chemical examination and as per the FSL report, no chemical poison was found and diatom test was also negative in respect of bone, but article water was found positive for the diatom test.
4. After completion of investigation, charge-sheet was filed before the JMFC Indore, who has committed the case to the Court of Sessions and later on case has been transferred to the Additional Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 4 Sessions Judge for trial. Thereafter, trial Court on the basis of the allegations made in the charge-sheet framed charges under Section 302 and 201 of IPC against the present appellant. Appellant abjured his guilt and pleaded complete innocence. The trial Court after appreciating the entire evidence available on record, convicted and sentenced the appellant as mentioned herein above. Hence, the appellant has preferred this appeal.
5. Learned counsel for the appellant contended that the judgment of the trial Court is contrary to law and facts on record. It is neither legal nor proper nor correct. The trial Court was wrong in drawing unwarranted inferences and not considering the material contradictions and omissions in the statement of prosecution witnesses. Case is based on circumstantial evidence and the chain of circumstantial evidence is not completed. Most of the prosecution witnesses turned hostile. Prosecution has failed to prove its case beyond reasonable doubt. Appellant is in jail since 17.08.2009. Hence, he prays that the appeal be allowed and the impugned judgment of conviction be set aside and appellant be acquitted from all the charges.
6. Per contra, learned counsel for the respondent / State opposes the prayer and prays for dismissal of this appeal by submitting that trial Court after appreciating the entire evidence available on record in detail rightly held that the appellant is guilty for the offence under Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 5 Sections 302 and 201 of IPC. Hence, no interference in the impugned judgment is warranted, therefore, present appeal deserves to be dismissed.
7. We have heard learned counsel for both the parties at length and perused the entire record of the trial Court with due care.
8. In order to appreciate the merits of rival contentions in the right perspective, it is necessary to first examine the medical evidence available on record.
9. Dr N.M. Unda (PW-18), who conducted the postmortem of deceased Bhavna has deposed as under:-
"02- ekuo vo'ks"k dadky voLFkk ds gksdj cksjs es can FksA cksjs dk eqag jLlh ls cka/kk x;k FkkA cksjk [kksyus ij mlds Hkhrj yxHkx dadky tSlh voLFkk dk 'ko ftl ij xans jax dh fxV~Vh jsr tSls inkFkZ yxs gq, Fks rFkk 'ko ls vR;f/kd cncw vk jgh FkhA gfM~M;ksa ds fdukjs xhys Fks rFkk ml Hkkx esa ueZ mRrd ugha ds cjkcj Fkk rFkk bl Hkkx esa Hkh feV~Vh o jsr ds d.k yxs gq, FksA 3- gfM~M;ksa rFkk diM+s ,d nwljs esa my>s gq, Fks ftls laHkkydj fudkyk x;k vkSj bls ,d lkM+h] Cykmt] v.Mj fo;j dk yphyk bykLVhd tSls inkFkZ ds :i esa igpkuk x;kA dhpM+] jsr ds d.k vkfn fudky dj lqjf{kr fd;s x;sA gfM~M;ksa dks uy ds ikuh ls /kksdj tkap ds fy;s lqjf{kr dj tkap izkjaHk dhA bu gfM~M;ksa dks [kksiM+h] yEch gfM~M;ka] ilfy;ka] nksuks izdkj ds xjMy] d'ks:dk;sa rFkk NksVh gfM~M;ksa ds :i esa igpku dh xbZ ftlesa ls gkFk ,oa iSj dh ¼maxfy;ksa dh½ dqN NksVh gfM~M;ka feflax Fkh ¼ekStwn ugh Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 6 Fkh½A lHkh miyC/k gfM~M;ksa dh uki dh xbZA nksuks Qhej gM~Mh] nksuks fVfc;k gM~Mh] nksuksa Qhcqyk gM~Mh] nksuks g~;wejl gM~Mh] nksuks jsfM;l ,oa vyuk gM~Mh] nksuksa dkWyj gM~Mh] lkeus cszLV cksu ¼esU;qfcz;e gM~Mh] LVjue gM~Mh½] 22 ux ilfy;kW] ikapksa ikp yEcj d'ks:dk;sa] 6 Fkkjsfld d'ks:dk;s vkSj ,d ljokbZdy d'ks:dk;sa] nksuksa Ldsiqyk] nksuks byk;d gfM~M;ka] lsØe ¼iwjk isyohl½ ekStwn FksA buesa ls [kksiM+h dh gM~Mh esa ls ,d NksVk lk ihl de Fkk ¼feflax Fkk½ rFkk fupyk tcM+k esUMhcy ekStwn ugh Fkk ¼feflax Fkk½A 04- gfM~M;ksa dh uke ds vk/kkj ij e`rdk dh mapkbZ 149 lsaVhehVj tks 6 ls-eh- de ;k vf/kd gks ldrh Fkh fu/kkZfjr dh xbZA esU;qczs;e gM~Mh tqM+h ugh FkhA byk;d gM~Mh dk ¶;qtu ekStwn Fkk ftlesa tqM+us ds fu'kku rkts FksA mijh tcM+s es nkar ekStwn Fks ftudh fLFkfr 'ko ijh{k.k fjiksVZ esa n'kkZbZ xbZ gS rFkk buesa ls tks nkar ekStwn ugh Fks muds xM~<s dhpM+ o jsr ds d.k ls Hkjs gq, Fks tks gfM~M;ksa ij yxs FksA eksyj nkar esa 4 dLi gksdj ;g efgyk ds nkar gksus dks bafxr djrs Fks vFkkZr [kksiM+h efgyk fyax dh FkhA blesa vDdy nk< ¼FkMZ eksyj½ f}rh; eksyj ls vk/kk mxk Fkk vFkkZr~ mldh mapkbZ nwljs nkar dh rqyuk esa vk/kh FkhA izk;ksfxd :i ls ;g nkar okyk Hkkx uXu vka[kksa ls ns[kus ij lkekU; fn[kkbZ iM+rk FkkA nkarksa ds xM~<s Hkjs gq, ugh gksus dk vFkZ nkar ds e`R;q i'pkr ¼l<ka/k ds dkj.k½ >M+ tkuk gS vFkkZr xM~<s [kkyh jgus ds dkj.k dhpM+ o jsr Hkj xbZA lHkh yEch gfM~M;ksa ds fdukjs eq[; gM~Mh ls tqM+s gq, FksA [kksiM+h ds flou ¼lwpj½ izk;ksfxd :i ls ¶;wt ugh gw, FksA [kksiM+h dks vyx ls [kksyus dh t:jr ugh Fkh blfy;s mlesa ekStwn xM~<ksa esa ls >kad dj [kksiM+h dh Hkhrjh fLFkfr dh tkap dh xbZA 05- gfM~M;ksa ij fuEu pksaVs ikbZ xbZ %& xnZu dh d'ks:dk tks ekStwn Fkh Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 7 ml ij /kkjnkj oLrq ls dVus dk fu'kku ekStwn Fkk ftudk vkdkj 1-5 lseh X 0-5 ls-eh-] 1-5 lseh X 0-6 lseh] 2 lseh X 1 lseh dh frjNh dfVax ekStwn Fkh tks LikbZu o ckWMh ij ekStwn Fkh rFkk LikbZu ds Hkkx esa vLFkhHkax ekStwn FkhA yEch gfM~M;ksa ds fdukjs dk dqN Hkkx ikuh esa Mqcs jgus ds dkj.k viuh txg ls VqV dj vyx gks x;k Fkk fdUrq dqN Hkkx esa yEch gM~Mh ij pksV gksus dks bafxr djrh FkhA ;g pksV vLFkhHkax n'kkZrh FkhA ilfy;ksa dk vLFkhHkax ekStwn Fkk rFkk nks ilfy;ksa esa /kkjnkj oLrq ls dVus dk fu'kku ekStwn FkkA ;g pksV ckbZ rjQ dh ilfy;ksa ij ikbZ xbZA 06- mijksDr Hkkx esa n'kkZbZ xbZ pksVsa ftuesa ls /kkjnkj pksV ¼'kkiZ dV½ dM+s /kkjnkj oLrq ls vkuk ikbZ xbZ Fkh rFkk pksVsa thfor voLFkk esa dkfjr djus ij izd`fr ds lkekU; Øe esa e`R;q dkfjr djus ds fy;s Ik;kZIr FkhA xnZu o ilfy;ksa dk Hkkx buesa ekStwn ueZ mRrd tSfod vaxks dh fxurh esa vkrs gSA gfM~M;ka tkap esa L=hfyax dh gfM~M;ka gksus dks n'kkZrh gSA e`R;q ekuoo/k Lo:i dh FkhA lHkh oLrq,a vko';drk vuq:i lhycan dj tkap ds fy;s ykSVkbZ xbZ FkhA e`rdk dh mez 22 ls 25 o"kZ gfM~M;ksa ds vk/kkj ij fu/kkZfjr dh xbZA bu gfM~M;ksa esa fdlh Hkh gM~Mh dh vf/kdrk vFkkZr~ MqIyhds'ku ugha ikbZ xbZ vFkkZr gfM~M;ka ,d gh O;fDr dh Fkh ftldk fyax L=hfyax FkkA lHkh gfM~M;kas dh DokfyVh o jax ,d tSlk FkkA gfM~M;ka jklk;fud tkap o Mh,u, tkap ds fy;s lqjf{kr dh xbZA gfM~M;ksa esa my>s gq, diM+s o vU; oLrq,a tSls dM+k] jsr ds d.k] feV~Vh vkfn lHkh tkap ds fy;s lqjf{kr dh xbZA /kkjnkj pksVksa ds vfrfjDr vLFkhHkax dM+s cksFkjs oLrq ls vkuk ik;k x;kA 07- vfHker & miyC/k ekuo vo'ks"k gfM~M;ka tks ,d L=h dh gksdj mldh 22 ls 25 o"kZ rFkk mldh mpkabZ 149 ls0eh0 tks 6 ls0eh0 de ;k vf/kd gks ldrh gSA gfM~M;ksa ij vfLFkHkax o /kkjnkj oLrq ls pksV dkfjr djus ds Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 8 fu'kku ekStwn FksA ;g thfor voLFkk esa dkfjr djus esa izd`fr ds lkekU; Øe esa e`R;q dkfjr djus ds fy;s Ik;kZIr FksA e`R;q ekuoo/k Lo:i dh FkhA e`R;q dk dkj.k [kqyk j[kk x;k gSA tkap ds fy;s lqjf{kr dh xbZ lHkh oLrq,a lacaf/kr Fkkus dks ykSVkbZ xbZ FkhA e`R;q dh vof/k 'ko ds dadky esa cny tkus o ikuh esa Mqcs jgus ds dkj.k lqfuf'pr ugh dh tk ldrhA [kksiM+h lqjf{kr dh xbZ ftls foHkkx ls lkQ dj ysus ds i'pkr 8 fnol ds Hkhrj izkIr dj ysus gsrq iqfyl dks funsZf'kr fd;k x;kA 'ko ijh{k.k fjikVZ iz-ih 15 esjh gLrfyih esa gksdj , ls , Hkkx ij esjs gLrk{kj gSA"
10. Dr. N.M. Unda (PW-18) finally opined that the mark of causing injury by some sharp edged object and fractures in the bones have been found, which were sufficient to cause injury in a live condition in due course and cause of death of the deceased was homicidal in nature. Postmortom report is (Ex.P-15).
11. Dr. Pankaj Shrivastava (PW-19), who is the Scientific Officer in DNA Finger Printing Unit, FSL, Sagar has deposed in his statement that after examination of skeleton of the alleged Bhavna, who was found in the well and blood sample of her parents, we find that unknown skeleton of the lady was biological daughter of the Pratap Singh and Radhabai, therefore, on the basis of DNA report (Ex.P-16), it is established beyond the reasonable doubt that the skeleton, which was found in the well belongs to the deceased Bhavna, therefore, on the basis of the aforesaid evidence, it is proved that death of the deceased was homicidal in nature and due to fatal injury caused by some sharp edged Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 9 object on her head, neck and chest, which are the vital organs.
12. It is to be noted that there is no eye witness of the incident in the present case and the entire case of the prosecution is based upon the circumstantial evidence. In the case of Sharad Birdhichand Sarda Vs. State of Maharashtra reported in (1984) 4 SCC 116, the Hon'ble Apex Court has held as under:-
"1. The circumstances from which the conclusion of guilt is to be drawn must or should be and not merely 'may be' fully established;
2. The facts so established should be consistent with the hy- pothesis 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;
3. The circumstances should be of a conclusive nature and tendency;
4. They should exclude every possible hypothesis except the one to be proved; and
5. 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 ac- cused."
13. The factors to be taken into account in adjudication of cases of circumstantial evidence is laid down by the Supreme Court in Anjan Kumar Sarma and others vs. State of Assam reported in (2017) 14 SCC 359 thus:-
Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 10" (1) 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" estab- lished;
(2) the facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to No.2031/2009 hypothesis except that the accused is guilty;
(3) the circumstances should be of a conclusive nature and tendency;
(4) they should exclude every possible hypothesis except the one to be proved; and (5) 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 ac-
cused."
14. The principles of circumstantial evidence is reiterated in the case of Nizam and Another Vs. State of Rajasthan reported in (2016) 1 SCC 550, wherein the Supreme Court has held that:-
"8. Case of the prosecution is entirely based on the circumstantial evidence. In a case based on circumstantial evidence, settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete, forming a chain and there should be no gap left in the Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 11 chain of evidence. Further, the proved circumstances must be consistent only with the hypothesis of the guilt of the accused totally inconsistent with his innocence."
15. Pratap Singh (PW-11) and Radhabai (PW-12), who are the father and mother of the deceased deposed in their statement that deceased Bhavna was their daughter and about 5-6 years ago, accused Nilesh has trapped Bhavna in his love, therefore, they have broken their relation with them. After that, they came to know that Bhavna has contacted marriage with the appellant and after contacting the marriage, she blessed with a child, but after sometime, they came to know that Bhavna was murdered by someone else. Police had shown them skeleton of Bhavna. Blood sample and photographs were also taken from them and they have signed the identification form (Ex.P-12 and P-13).
16. Rani (PW-13), who is the sister of the deceased stated in her deposition that her sister Bhavna had ran away from the home with the accused. Thereafter, she has stopped conversation with her and she came to know from the Newspaper that accused/appellant Nilesh and co- accused Mukesh had murdered the Bhavna. Soniya (PW-26) has also deposed that accused Nilesh alongwith his mother, brother and sister-in- law (bhabhi) lived in a lower portion of her house and mother of the accused Nilesh told her that Bhavna is her daughter-in-law and wife of the Nilesh. Nilesh and Bhavna used to quarrel with her. Pinki @ Muskan Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 12 was the friend of the Bhavna and quarrel has taken place between Bhavna and her husband on the basis of doubt of illicit relationship of accused with each other Pinki @ Muskan.
17. From the statement of parents Radhabai (PW-12), Pratap Singh (PW-11) and Soniya (PW-26), it is proved that deceased Bhavna contacted love marriage with the accused Nilesh and after their marriage, Bhavna started living with the accused Nilesh and they were blessed with a kid, but their matrimonial relation was not cordial and mutual conflict develops between them on the issue of illicit relationship with some other lady namely Pinki @ Muskan. It is remarkable that prior to the incident deceased and accused both were living together as a husband and wife in the same house and deceased was last seen in the company of the accused. When the deceased was missing from the house of accused, then duty lies upon the accused to lodge a missing person report of her wife in Police Station and also informed her parents regarding it, since accused did not lodge any such missing person report for a period of more than one and half years without any sufficient explanation, therefore, it is a strong chain of circumstances found proved against him and accordingly trial Court has rightly drawn legal presumption against him.
18. Sub-inspector R.S. Atal (PW-21) stated in his deposition that he has arrested the accused in respect of Crime No.602/2010 and Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 13 recorded his discovery statement (Ex.P-17) in which he stated that he has thrown rope in the well, despite sufficient search, but could not find it. Inspector S.M. Jaidi (PW-28) has arrested the accused and recorded his discovery statement (Ex.P-2) and on the basis of said statement he went to the well situated near by Tasalli Dhaba and with the help of other police force he has recovered human skeleton, plastic bangle found in the bone of the hand, clothes like under garments and saree through seizure memo (Ex.P-1).
19. Although Jagga @ Jagdish (PW-25) and Mohan (PW-20), witnesses of memorandum and discovery statement (Ex.P-17) have turned hostile and not supported the case of the prosecution. Sonu Ahirwar (PW-1) and Dilip Chouksey (PW-2), who are the witnesses of memorandum statement (PW-1) and seizure memo (Ex.P-8 and P-9) have also turned hostile and did not support the case of the prosecution, but Sub-inspector Yashwant Gayakwad (PW-23) has corroborated that Inspector S.M. Jaidi recovered a human skeleton from the well situated behind Mayank Blue Water Park and Naksha Panchayatnama (Ex.P-7) was prepared before him. Although independent witnesses of these proceedings did not corroborate the statement of Investigating Officer, but statement of Inspector S.M. Jaidi is well supported by the cogent documentary evidence. Merely because of the fact that he is a Police Officer and credibility of his statement cannot be thrown out, because Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 14 there is no reason to disbelieve his statement.
20. Thus it is clear that the discovery statement made by ac- cused lead to recovery of dead-body and other articles of deceased under section 27 of Indian Evidence Act. The dead-body of deceased was pointed by accused and it has been recovered and seized as a result of statement made by him, that would lead to be conclusion of offender of murder. It is a strong piece of chain of circumstantial evidence against the appellant.
21. From the evidence of Radha bai and Pratap Singh, who are the parents of deceased and the statement of Rani and Soniya, it has been established that the deceased was the wife of the accused and they had contacted the love marriage, but the accused/ appellant in his statement under Section 313 of Cr.P.C. has denied the fact of marriage with the deceased. Denial of accepted established facts is sufficient basis for drawing legal presumption against the accused.
22. From the statement of Sonia, Radha bai and Pratap Singh, it is proved that after the marriage, deceased started living with accused, but their relations were tensed. After contacting the marriage, appellant remained in illicit relationship with some other lady Pinki @ Muskan and due to which quarrel had taken place. Deceased was last seen together with the accused, therefore, it is proved that due to the quarrel taken place between them prior to the incident, accused has murdered his Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 04-12-2023 14:27:47 15 wife Bhavna. Apart from the above, he has also murdered the Pinki @ Muskan. Accordingly, he has been convicted and sentenced for the offence under Sections 302 and 201 of IPC of murder of her wife Bhavna.
23. For the reasons stated herein above, we find no force in this appeal and the appeal being devoid of merit substance is hereby dismissed. The conviction and sentence as awarded by the trial court to the appellant under sections 302 and 201 of IPC is hereby upheld and confirmed. Appellant is in jail. He shall remain in jail to suffer the remaining part of jail sentence awarded to him.
24. Disposal of the property shall be as per the order passed by the trial court.
25. Registry is directed to send a copy of this judgment to the trial court alongwith the record of the trial court for information and necessary compliance.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE J U D G E
Anushree
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 04-12-2023
14:27:47