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2017 DIGILAW 1112 (MP)

Modsingh v. State of M. P.

2017-10-30

P.K.JAISWAL, VIRENDER SINGH

body2017
JUDGMENT 1. The appellant-Kadir Shah has preferred this appeal against the judgment and order dated 8.9.2004 passed in S.T. No.167/2003 by II ASJ, Shajapur whereby the learned Court has held the appellant guilty for the offence punishable under section 396 of IPC and sentenced him for life imprisonment and fine of Rs.5,000/-, in default of payment of fine further to undergo R.I. for six months. 2. Sans unnecessary details facts of the case are that one Kailash was residing at New Township in Maksi with his wife-Sulochna and son-Dheeraj. On 24.7.2003 they were found dead in their house. Someone informed his father-in-law Ramnarayan (PW1) on telephone about the incident. He rushed there and found them dead in the basement of the house. It was suspected that in the intervening night of 23rd and 24th of July, 2003 someone has killed them. He reported the incident to the police station-Maksi, District-Shajapur, who registered the case against unknown persons and visited the spot, called the witnesses, prepared panchnama lash, seized blood stains, plain soil, prepared spot map, sent the dead bodies for post-mortem and proceeded for further investigation. During investigation, it was revealed that the ornament which Sulochana was wearing at the time of incident were missing. Ramnarayan and his wife Shyamubai told the police that they have gifted those ornaments to their daughter Sulochana. The police took the appellant along with four other co-accused persons into custody and interrogated them and recovered those ornaments from the possession of co-accused/Dinesh and Mahesh. The police also recovered blood stained, katar and knives from the possession of Dinesh, Dashrath, Mahesh and Modsingh. The police also arrested the appellant/Kadir Shah and on his disclosure recovered a knife from his possession. After completing investigation, the police filed the charge sheet which was ended in the conviction of the appellants. 3. Against the impugned judgment and order, accused Dinesh and Mahesh filed Criminal Appeal No.1094/2004 and accused Modsingh, Dashrath and present appellant Kadir Shah filed Criminal Appeal No.1017/2004. Later co-accused Mahesh and Dinesh withdrew their appeal vide order dated 28.6.2017 and co-accused of present appeal Modsingh and Dashrath also withdrew their appeal vide order dated 28.6.2017. Hence, this judgment is being delivered only with regard to remaining appellant Kadir Shah in Criminal Appeal No.1017/2004. 4. Later co-accused Mahesh and Dinesh withdrew their appeal vide order dated 28.6.2017 and co-accused of present appeal Modsingh and Dashrath also withdrew their appeal vide order dated 28.6.2017. Hence, this judgment is being delivered only with regard to remaining appellant Kadir Shah in Criminal Appeal No.1017/2004. 4. The appellant has preferred the present appeal on the ground that the judgment and order of trial Court is contrary to law and facts of the case. There is no direct or indirect evidence available on record. Circumstantial evidence is also not available. The prosecution could not establish circumstance put forth by it before the trial Court. Only a knife has been seized from the possession of the present appellant but there is no evidence to link this knife with the incident. It is said by the prosecution that there were blood stains on the knife but this fact could not be established, that knife was having human blood stains. Independent witnesses have not supported the prosecution case. The learned trial Court has committed error in relying on the statement of Investigation Officer, therefore, the appellant prayed for quashment of the impugned judgment and order. 5. The prosecution has supported the impugned judgment and order of the learned trial Court. 6. Dr. Iqbal (PW6) who has performed autopsy have found that several cut injuries on the body of all three deceased persons. He opined that the injuries were anti mortem caused by sharp object and were sufficient to cause death in the ordinary course of nature. The appellant has not challenged this finding of the Doctor Iqbal (PW6), therefore, without discussing in details, it is held that the deaths of Kailash, Sulochana and Dheeraj were homicidal. 7. This is a blind murder case. No eye-witness could be produced by the prosecution. The whole case depends on circumstances. Apart from the statement of co-accused persons recorded under section 27 of Evidence Act, who named the present appellant Kadir Shah as accomplice, only one circumstance could be produced against the present appellant that is recovery of a knife from his possession. Needless to say that statement of co-accused persons are inadmissible against the present appellant. Without delving deep in the evidence of recovery of this knife, if we take it as proved, even then there is nothing to co-relate this knife with the incident. Needless to say that statement of co-accused persons are inadmissible against the present appellant. Without delving deep in the evidence of recovery of this knife, if we take it as proved, even then there is nothing to co-relate this knife with the incident. Undisputedly, the knife was sent for FSL examination and nothing is found in that examination. According to FSL report Ex.P-74 and P-75 blood stains were found on this knife but source of blood or blood group could not be established as they were disintegrated. Even this could not be established that these stains were of human blood. No articles like ornaments allegedly looted in the incident were recovered from the possession of the present appellant. Thus, nothing remains on record to establish the circumstance put forth by the prosecution or to link this circumstance with the crime, therefore, conviction of the present appellant is totally unsustainable. 8. In view of the aforesaid, the judgment and order passed by the learned trial Court is hereby set aside. The appellant Kadir Shah is acquitted from the charge under section 396 of IPC. He be released from the custody forthwith, if not required in any other case. The order of the trial Court with regard to disposal of the property is hereby confirmed.