Jitendra vs State of Madhya Pradesh Govt.

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2024 Supreme(MP) 202

IN THE HIGH COURT OF MADHYA PRADESH
Vivek Rusia and Pranay Verma, JJ.
Jitendra v. The State of Madhya Pradesh Govt.
Criminal Appeals No. 1421 of 2010 and 1423 of 2010 (Indore): against the common judgment and sentence dated 25.11.2010 passed by the 9th Additional Sessions Judge, Ujjain in Sessions Trial No. 581/2009; Decided on 6.3.2024

Advocates:
Anil Ojha and Ms. Sharmila Sharma for respective appellants; Kushal Goyal, Deputy Advocate General for respondent/State.

Headnote:
(1) Penal Code, 1860 -- S. 364/34 -- according to witnesses of last seen together, deceased himself went along with appellants -- animosity between them very old and that too between deceased and appellant J, not with appellant A -- conviction u/s. 364 unsustainable as ingredient of kidnapping is missing in evidence. (2000) 8 SCC 382 followed. [Paras 16 & 17]
(2) Penal Code, 1860 -- S. 397/34 -- appellants did not kidnap and murder deceased for robbery or dacoity -- they were not carrying any weapons -- they have been acquitted u/s. 364 as no abduction with intention to murder was found -- liable to be acquitted u/s. 397 also. [Para 18]
(3) Penal Code, 1860 -- Ss. 302/34, 201/34 and 304 Pt. II -- deceased himself went along with appellants around 6:30 pm hence they did not kidnap him with intention to commit murder -- when his father telephoned him between 9:30 -- 9:40 pm, he did not complain that he was unsafe with them -- in between, they consumed beer -- thereafter, something happened that led to unfortunate incident -- deceased was assaulted by beer bottle and thereafter, appellants strangulated him till death -- held -- they developed intention to kill by strangulation on spot -- it is not they gave single blow on head without intention to kill, and death took place -- in case of death by strangulation, accused continues to apply pressure till deceased takes last breath -- hence, it was murder, not culpable homicide -- appellants rightly convicted u/ss. 302/34 and 201/34. (2006) 10 SCC 182 and (2006) 3 SCC 752 followed. [Paras 20 & 21]
¼1½ naM lafgrk] 1860 & /kkjk 364@34 & vafre ckj lkFk ns[ks tkus ds lkf{k;ksa ds vuqlkj] e`rd Lo;a vihykFkhZx.k ds lkFk x;k & muds e/; 'k=qrk vR;f/kd iqjkuh vkSj og Hkh e`rd vkSj vihykFkhZ ts ds e/;] vihykFkhZ , ls ugha -- /kkjk 364 ds v/khu nks"kflf) fLFkj j[ks tkus ;ksX; ugha D;ksafd lk{; esa O;igj.k ds la?kVd dk vHkko gSA ¼2000½ 8 ,llhlh 382 vuqlfjrA ¼iSjk 16 ,oa 17½
¼2½ naM lafgrk] 1860 & /kkjk 397@34 & vihykFkhZx.k us ywV ;k MdSrh ds fy, e`rd dk O;igj.k vkSj gR;k ugha dh & og dksbZ gfFk;kj ugha fy, Fks & mUgsa /kkjk 364 ds v/khu nks"keqä fd;k x;k gS D;ksafd gR;k ds vk'k; ls vigj.k ugha ik;k x;k & /kkjk 397 ds v/khu Hkh nks"keqä fd, tkus ;ksX;A ¼iSjk 18½
¼3½ naM lafgrk] 1860 & /kkjk 302@34] 201@34 rFkk 304 Hkkx&2 & e`rd Lo;a vijkUg yxHkx 6%30 cts vihykFkhZx.k ds lkFk x;k blfy, mUgksaus gR;k djus ds vk'k; ls mldk O;igj.k ugha fd;k & tc mlds firk us vijkUg 9%30&9%40 ds e/; mls Qksu fd;k rc mlus f'kdk;r ugha dh fd og muds lkFk lqjf{kr ugha & bl chp mUgksaus ch;j ih & rnuarj dqN gqvk ftlds dkj.k nqHkkZX;iw.kZ ?kVuk ?kVh & e`rd ij ch;j dh cksry ls geyk fd;k x;k vkSj rRi'pkr~ vihykFkhZx.k us mlds ejus rd mldk xyk ?kksaVk & vfHkfu/kkZfjr & xyk ?kksaV dj ekjus dk vk'k; LFky ij fodflr gqvk & ,slk ugha gS fd mUgksaus o/k ds vk'k; ds fcuk flj ij ,d gh okj fd;k vkSj e`R;q gks xbZ & xyk ?kksaVus ls e`R;q ds ekeys esa] vfHk;qä e`rd ds vafre 'okl ysus rd ncko cuk, j[krk gS & vr% ;g gR;k Fkh] vkijkf/kd ekuoo/k ugha & vihykFkhZx.k /kkjk 302@34 vkSj 201@34 ds v/khu Bhd gh nks"kfl)A ¼2006½ 10 ,llhlh 182 rFkk ¼2006½ 3 ,llhlh 752 vuqlfjrA ¼iSjk 20 ,oa 21½

JUDGMENT

1. Since these appellants are convicted by a common judgment of conviction and sentence, therefore, these criminal appeals are finally heard and being decided by this common judgment.

2. The appellants have filed these Criminal Appeals under section 374 of the Code of Criminal Procedure, 1973 against the common judgment of conviction and sentence dated 25.11.2010 passed by the IX Additional Sessions Judge, Ujjain in Sessions Trial No.581/2009, whereby the appellants have been convicted and sentenced as under:

CONVICTION			SENTENCE
Section	Act	Imprisonment	Fine if deposited Imprisonment	details instead of a fine
364/34	IPC	Life Imprisonment	Rs.5,000/-	03 months' R.I.
302/34	IPC	Life Imprisonment	Rs.10,000/-	03 months' R.I.
397/34	IPC	10 years' R.I.	Rs.2,000/-	01 month's R.I.
201/34	IPC	03 years' R.I.	Rs.2,000/-	01 month's R.I.

2. As per the prosecution story, the complainant – Nirmal Kumar lodged a missing person report on 17.09.2009 that his son namely Manish (deceased) had been missing since the evening of 16.9.2009. At the same time, Suresh S/o Kanhaiyalal gave information to the police station that between the agricultural field of Mohan Kumawat and the road, one dead body was lying in bushes. The aforesaid information was recorded under section 174 of the Cr.P.C. The dead body was identified as a missing person Manish by his father / complainant, thereafter, an F.I.R. was registered and the matter was taken into investigation. The spot map was prepared and after calling the Panch Witnesses, Lash Panchayatnama was also prepared. The dead body was sent for postmortem. From the spot, a leaf of the tree containing bloodstains, a broken beer bottle, two coins, and one pair of slippers were seized. The bloodstained clothes of the deceased were received from the hospital.

3. Upon suspicion these two appellants were arrested as the deceased was last seen with them in the Railway Colony, Ujjain. After arresting them, memorandum statements were recorded. On the statement of Amjad, a light-colored wallet and the driving license of the deceased were seized and upon disclosure by Jitendra, one mobile of Spice Company of the deceased was recovered from one Mukesh. All the seized articles were verified by the complainant Nirmal Kumar. The police also recovered the bloodstained clothes of Jitendra & Amjad. The seized articles collected from the scene of the crime were sent to Forensic Science Laboratory, Gwalior. The statements of the witnesses were recorded. The investigation was completed and charge-sheet was filed before the Judicial Magistrate First Class.

4. The trial was committed to the Sessions Court, by which charges under sections 364, 302, 397 & 201/34 of the IPC were framed against these appellants, which they denied and pleaded innocence. Hence, the prosecution was called upon to adduce the evidence. The prosecution examined 22 witnesses and exhibited 28 documents. In defence, the appellants did not examine any witnesses and exhibited only four documents. After evaluating the evidence that came on record, the learned IX Additional Sessions Judge, Ujjain passed the common judgment of conviction and sentence dated 25.11.2010 in Sessions Trial No.581/2009, hence, these two criminal appeals are before this Court.

5. Learned counsel for both the appellants raised common grounds to assail the findings by submitting that these appellants have been convicted on the basis of circumstantial evidence as the prosecution failed to examine any eye-witness in this matter. They are residents of Village – Maxi and the dead body of the deceased was found near Ujjain. There are a lot of omissions and contradictions in the statements of prosecution witnesses which have been ignored by the learned trial Court. It is further submitted by the learned counsel that in case of circumstantial evidence, the motive plays an important role, but the prosecution fail