Prakash @ Munna vs The State Of Madhya Pradesh

Per: Justice Avanindra Kumar Singh

This appeal has been filed under Section 374(2) of the Criminal Procedure Code, 1973, by the appellant/accused against the judgment dated 30/04/2024 passed by the Second Additional Sessions Judge, Itarsi District Narmadapuram (MP) in S.T.No.81/2021 (State of M.P. vs. Prakash @ Munna & another), whereby the learned trial Court has convicted and sentenced the appellant-Prakash @ Munna as under :-

Learned trial Court has acquitted the co-accused Sukhdev from the charges under Sections 364, 302/34, 120-B and 201 of IPC and has also acquitted appellant-Prakash @ Munna from the charges under Section 120-B and 201 of IPC as per Para 104 of judgment.

As per prosecution case, on 18/04/2021 informant Virendra Verma (PW-5) appeared in Police Station Kesla District Narmadapuram and informed that on the boundary of the field of Mahesh (PW-20) and Dinesh a dead body of unknown person is lying. Therefore, Marg No.07/2021 (Ex.P/18) under Section 174 of Cr.P.C. was registered. During marg enquiry, Spot Map (Ex.P/19) was prepared by A.S.I. Heeralal Dhurve (PW-13). Dead body panchnama (Ex.P/21) was made. FSL team was summoned and they inspected the spot and body of the deceased. Photographs of the dead body (Ex.P/46 to Ex.P/48) were taken. Near the dead body shoes, socks, mask and bunch of hairs were lying which were also seized vide Ex.P/22. Dead body was subjected to postmortem by the doctor (PW-26). Viscera was preserved for chemical analysis. Inquiry was made to ascertain the identity of the deceased. On 25/04/2021 a missing person report No.49/2021 (Ex.P/5) was lodged in Police Station Multai District Betul regarding missing person-Jagan Geed and when sister Babita (PW-1) came to know that a dead body has been found at a place under Police Station Kesla, then she appeared in Police Station Kesla and identified the clothes of the deceased which were seized during investigation and, therefore dead body was found to be of Jagan Geed S/o Narayan Geed, aged about 45 years R/o Hiberkhed Police Station Multai, District Betul. Identification Memo (Ex.P/3) was prepared. DNA test was conducted for further identification of the body. Statement of Babita (PW-1) was recorded. Missing Person Report (Ex.P/5) lodged in Multai Police Station was annexed in this case at Police Station Kesla. Marg statements of Vijay (Ex.P/17) and Suresh (Ex.P/16) were recorded. On the basis of the enquiry, suspect Prakash @ Munna was called in Masod Chowki. On the basis of his statement (Ex.D/4) and memorandum under Section 27 of Indian Evidence Act of the appellant-Prakash (Ex.P/28), Rs.20,000/-, gold jewellery and motorcycle of the Vijay Kumbhare (PW-3) used in the crime was seized vide Ex.P/13 and Ex.P/14. Crime No.57/2001 -F.I.R. (Ex.P/62) under Sections 302/34 of IPC was registered. Mobile call detail of accused Prakash @ Munna and deceased were obtained, Call Details Record is Ex.P/73. It was found that on 09/04/2021 the accused/appellant and deceased had a telephonic conversation. On the basis of investigation, it was found that under a criminal conspiracy made by the accused, they cheated/played a fraud with deceased- Jagan Geed on the pretext of getting him married and took him from Betul through Padhar to a field at Kesla in District-Narmadapuram and there they made him drink poison in a cold drink and also strangulated him and thereafter to conceal the evidence, they broke the sim, mobile and battery of the mobile, therefore, Sections 201, 120-B, 364 of IPC was enhanced.

After completing the remaining investigation in which it was found that deceased-Jagan Geed knew accused Prakash @ Munna and Sukhdev, who was the friend of Prakash. Deceased had crossed the marriageable age, therefore on the pretext of getting the deceased married, accused obtained gold and silver jewellery and money from him and under a criminal conspiracy, the accused lured the deceased to the spot and ultimately strangulated him. To conceal the evidence of the crime, they destroyed the mobile phones, SIM card and battery by breaking them into pieces. Therefore, after completing the remaining investigation charge-sheet under the aforesaid sections was filed.

When charged under the aforesaid sections, accused/appellant pleaded not guilty. After prosecution evidence, in the statement recorded under Section 313 of Cr.P.C., appellant Prakash again stated that he is innocent and has been falsely implicated. The appellant Prakash @ Munna has examined himself as a witness (DW-1) under Section 315 of Cr.P.C. and has also examined Shivnath as a defence witness no. 2.

Against the judgment of conviction and sentence, this appeal has been filed on the ground that the appellant is innocent and the cause of death of deceased was lever Cirrhosis disease. Prosecution witnesses namely Sagar Barasker (PW-6), Dr. Sandeep Magrade (PW-7), Brahmadev Barasker (PW-10), Sudhaker Barasker (PW-11) and Deepak Rathore (PW-21) have not supported the prosecution case. Babita (PW-1) and Suresh (PW-2) are the close relatives and this fact should have been taken into consideration by the trial Court. In view of the aforesaid, a prayer is made to allow the appeal and acquit the appellant.

On the other hand, Shri Manas Mani Verma, learned Government Advocate supports the impugned judgment and seeks dismissal of the appeal.

7 . We have perused the record and considered the arguments of learned counsel for the parties.

On perusal of the record, it is found that the prosecution witnesses namely Vijay Kumbhare (PW-3), Sagar Barasker (PW-6), Dr. Sandeep Magrade (PW-7), Kanhaiyalal (PW-8), Brahmadev Barasker (PW-10), Sudhaker Barasker (PW-11), Ganesh Suryawanshi (PW-19), Deepak Rathore (PW-21) and Rakesh Batti (PW-29) have turned hostile and not supported the prosecution case.

Babita (PW-1) who is sister of the deceased-Jagan Geed, has stated that accused promised her brother that they will get him married to a girl at Betul but they had asked him not to tell anyone. This information was given by Jagan Geed to her. It was agreed that marriage will take place on 9th, it was a Corona lock down period therefore, his brother went by a bus to Betul and on reaching Betul he had called her on mobile phone. He had taken Rs.40,000/- and gold jewellery for marriage. He was going to Balajipuram but after 10 PM, no call came from her brother, therefore she went to the house of the Prakash and got his number. However, Prakash stated that he has neither called the deceased nor assured him to get married. Therefore, she went to Masod Police Chowki in District-Betul to lodge the report but they refused to take report. Thereafter, she dialed No.121 then they took the report. Later on, she was informed that in Police Station Kesla they have apprehended the accused person and body has been found then she went there and saw the dead body and identified her brother on the basis of his clothes. Identification memo (Ex.P/3) was also prepared by police which carries her signature from 'A to A' part. Earlier she had already lodged a missing person report (Ex.P/5) regarding his brother. Police has seized rupees and jewellery from the house of accused and had prepared identification memoes (Ex.P/8 & Ex.P/9) for the same purpose which carries her signature, she had identified the cash and jewellery.

In cross-examination, Babita (PW-1) stated in Para-10 that whatever articles were shown to her as per Identification Memos (Ex.P/8 and Ex.P/9) they were in open condition then she stated that police brought the articles in a sealed condition. In Para-11 she further stated that police did not bring any other jewellery except her own articles. In Para-13 she admitted that dead body shown to her, did not have a face. In Para-17 she stated that whatever documents she had signed was signed because police had asked her to do so but she does not know, what was written in them.

Suresh Barasker (PW-2) who is the brother-in-law of the deceased has deposed on the same lines as per PW-1 Babita. In Para-3 of his examination-in-chief, he stated that appellant Prakash @ Munna gave memorandum statement (Ex.P/12) and on that basis, seizure was made from him as per Seizure Memo (Ex.P/13). Motorcycle was seized from Prakash as per seizure memo (Ex.P/14). Spot Tasdik Panchanama (Ex.P/15) was prepared before him. Personal articles of the deceased were identified as per memo (Ex.P/3) and dead body identification memo is Ex.P/4. Prosecution declared this witness hostile, in leading questions by prosecution, he did not support the prosecution case.

Ravi Suryawanshi (PW-4), Owner of the Dhaba, stated that in April 2021, three persons came to have food at his Dhaba. They ordered wine and thereafter consumed fish and chicken. Thereafter they ordered cold drinks and paid the amount. Accused were heavily drunk. In cross-examination in Para-2 he admitted that police never carried out identification of the accused from him. Police did not obtain CCTV footage from his Dhaba in Para 4 he stated that in court that about the accused present through video conferencing he is not sure whether he came to his Dhaba.

Virendra Verma (PW-5) has stated that on the boundary of his field (med), a unknown dead body of a person was lying. In cross-examination, he stated that bones of a leg of the deceased were visible.

Sagar Barasker (PW-6) has stated that deceased was his uncle and he had left him at bus stand for going to Betul. The deceased told him that Prakash @ Munna called him so that he may get married. Prosecution has declared this witness hostile. In Para-5 of his cross-examination, this witness stated that her father Suresh and aunt (mosi) had told him what to state in the Court. He also stated that his testimony in court regarding the murder and the cold drink was based entirely on what his aunt and the police had told him.

Dr. Sandeep Magrade (PW-7) has stated that on 31/01/2021 the deceased had came in his clinic to get his mother treated for Paralysis. The prosecution has declared this witness hostile. In answer to the leading question, he had not supported the case of the prosecution.

Kanhaiya Lal (PW-8) has been declared hostile by police. In cross-examination in Para-4, this witness stated that he does not know the accused persons. He has never met them. No material like mobile, cold drink bottle etc. has been seized from accused-Prakash. Police never questioned Prakash before him. In para-5 he further stated that whatever he had stated against accused-Prakash in examination-in-chief, that was by mistake. No proceeding or seizure has been conducted from Prakash before him.

Nidhi Patel (PW-9) Naib Tahsildar, has stated that she conducted identification of the jewellery and money as per seizure memo (Ex.P/8 & P/9) which carries her signature from 'B to B' part. In para-4 of her cross-examination, she stated that police had brought the articles and she had mixed other jewellery in those articles. In Para-6 she admitted that in seizure memo (Ex.P/8 & P/9) it is not mentioned whether the jewellery produced by the police was in a sealed condition or not.

Assistant Sub- Inspector-Heeralal Dhurve (PW-13) in para-6 of his cross-examination has stated that in Ex.P/18 marg recorded by Virendra Verma (PW-5) there is mention of dead body of unknown person and it is also mentioned therein that due to an animal scratch, there was no flesh remaining on the back and foot of the body of the deceased. In Para-8 he stated that face of the deceased was not identifiable. He also admitted that in Naksha Panchayatnama (Ex.P/21), it is mentioned that the dead body of an unknown person had been partially eaten and scratched by animals.

Sub-Inspector- Radheshyam Pawar (PW-24) in Para-8 of his cross-examination, has admitted that he did not investigate as to from where the seized material was purchased. Regarding the currency notes, he has not mentioned the denominations of the notes.

Dr. D.J. Brahmachari (PW-26) who has conducted the postmortem on the body of the deceased has stated in Para-1 of his examination-in-chief that dead body was in a decompose state. Upper part of the face, both hands and legs and skin had turned black. On hands, legs, stomach and face, there were maggots. Bones and teeth were seen in the dead body. Skull bone was also seen. There was no injury on the body of the deceased. Viscera was preserved. In Para-2 of his examination-in-chief, he stated that the death occurred 3 to 7 days before the postmortem, Postmortem report is Ex.P/63.

Inspector-Kailash Panse (PW-27) in Para-15 of his cross-examination, admitted that there is no eye witness in this case. He also admitted that he did not obtain CCTV Footage of the Betul bus stand where deceased-Jagan Geed had gone. He also admitted that he did not make any request to the S.P. Betul for getting CCTV Footage. He also admitted that at Dhaba where deceased had taken food there were CCTV Footage but he did not obtain the same, he stated on his own that owner of Dhaba had stated that there was less memory in mobile, therefore CCTV Footage could not be obtained.

Aman Gupta (PW-28) has stated that police has obtained CDR call details of Mobile No.7828520519 from 07/04/2021 to 09/04/2021 regarding the fact to which person the SIM was alloted. For this notice (Ex.P/67) was received by him and he had given information that SIM was alloted to Prakash @ Munna (appellant). Call Record Details is Ex.P/69 and certificate, under Section 65-B of Evidence Act, is Ex.P/70.

Appellant- Munna @ Prakash (DW-1) has examined himself as defence witness. He has stated that Jagan Geed used to come to his field to work as a labourer. He (deceased) had borrowed some money for getting his mother treated but that money was not returned. On 09/04/2021 he was doing electricity work in village Guretha. He never lured the deceased on the pretext of getting him married. He had given statement (Ex.D/4) to the police which carries his signature from 'A to A' part. During his cross-examination by prosecution. He denied that he murdered Jagan Geed and obtained jewelry and money from him.

Shivnath (DW-2) has stated that on 09/04/2021, appellant Prakash @ Munna was working in his under construction house doing electricity work along with Mahaleji. In cross-examination by the prosecution, this witness stated that it is incorrect to say that he does not know where Prakash @ Munna was working on 09/04/2021.

On perusal of the entire record, we find that two or three glaring infirmities have come in this case. First of all, regarding the identification memo of jewellery. The Naib Tahsildar-Nidhi Patel (PW-9), who conducted the identification of jewellery and cash amount has stated that she had got the jewellery to mix with the jewellery identified by witness but prosecution has not produced any communication/authorization letter by her (PW-9) to her staff or to any jeweler to obtain the jewellery to be mixed in the jewellery to be identified. There is no detailed description of the currency notes. This Court is sure that in identification of jewellery identical type of jewellery has to be mixed and each jewellery has its own peculiar colour design etc., for example, if there is a ring, chain or any other jewellery made of silver and gold to be idnetified then Tahsildar has to write a letter directly to the Jeweller stating that for identification of jewellery in a case, such and such type of jewellery is needed, but when this letter is not available and even when the Naib Tahsildar -Nidhi Patel (PW-9) has also admitted that it is not mentioned in Identification Memo (Ex.P/8 & Ex.P/9) that whether jewellery brought by the police was in a sealed condition or not, then the identification memos (Ex.P/8 & Ex.P/9) comes under a cloud of suspicion. Even otherwise, police has not produced any purchase receipt of the jewellery which Jagan Geed is stated have carried with him to Betul therefore, identification becomes doubtful.

There is also lacuna in the investigation inasmuch as the police have not seized the CCTV footage from the Betul bus stand, where the deceased is stated to have gone. The explanation offered by the Investigating Officer (PW-27) in cross-examination Para 15 is that he did not correspond with the SP, Betul, for securing the footage, stating that considerable time had elapsed. However, this is not a correct procedure or Explanation as it was his duty to write a request letter to the S.P., Betul, for securing the same CCTV Footage. If, for any reason, CCTV Footage were not available then those correspondence would have come on record to bolster the confidence of this Court in fair and proper investigation. Similarly, CCTV Footage of the Dhaba where the appellant/accused and deceased had consumed food has not been obtained. It is further stated by the Investigation Officer Kailash Panse (P.W.-27) that the owner of the Dhaba (P.W.-4) had stated that phone memory was less therefore he could not get the CCTV Footage but for this purpose, a specific statement of Dhaba owner- Ravi Suryawanshi (PW-4) should have been recorded and verified in a legal way by the Investigating Officer (P.W.-27) as to whether the statement given by the Dhaba owner regarding CCTV Footage was correct or not, same principle would apply to the CCTV Footage at Betul bus stand, in fact on perusal of the statement of P.W.-4 we find that in examination-in-chief prosecution had not asked this witness that CCTV footage were sought from him and he could not supply the same to the police because of less memory in recording device, i.e., mobile phone.

In the considered opinion of this Court, an Investigating Officer cannot conduct an investigation in a murder case on whims and fancies. Investigation in a criminal case, and the conclusion drawn therefrom, is like a calculation in a mathematical problem. The final answer to a mathematical problem can be appreciated only when the correct steps leading to the answer are properly shown or explained. Similarly, in a criminal investigation, the conclusion can inspire confidence only when the necessary and correct investigative steps have been duly undertaken and placed on record before the trial Court.

In the present case, the conviction is based only on the basis of circumstantial evidence. The law with regard to conviction on the basis of circumstantial evidence has very well been crystalized by the Hon'ble Supreme Court in the case of Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116.

When tested the above principles laid down in Sharad Birdhichand Sarda (Supra), we find that chain of circumstances against the accused is broken at many place.

3 0 . Babita (PW-1) in Para-11 of her cross-examination has stated that police has not brought any other jewellery beside their jewellery. She has also stated in Para-13 that face of the dead body was not identifiable. In Para-17 she further stated that she does not know what was written in various documents which were signed by her on asking by the police.

In Raghunatha and another vs. The State of Karnataka, Criminal Appeal No. ............ of 2024 (arising out of SLP (Criminal) No.6112 of 2022) judgment dated 21/03/2024, the Hon'ble Supreme Court in Para-9 has held as under :-

Dr. Sandeep Magrade (PW-7) has stated that Jagan Geed has brought his mother for getting her paralysis treated and appellant has examined himself as a witness stated and that he had loaned some money to the deceased who was working at his field for getting his (deceased) mother treated. On the day of incident i.e. 09/04/2021 he was working at Shivnath's (DW-2) house along with Mahaleji and Shivnath (DW-2) has supported this plea. The prosecution has not been able to counter this plea of alibi of appellant, this plea of alibi by the appellant could have been negated only by producing the CCTV Footages which police failed to produce that accused is raising a false plea of alibi because on 09/04/2021 he was not working with Mahale at the house of Shivnath doing electricity work but was in Betul Bus stand and had eaten food on a Dhaba, in fact there is no correspondence or other oral or documentary evidence to prove that Investigation Officer (PW-27) made any attempt to obtain the CCTV Footage of Dhaba or Betul bus stand.

Regarding the call details of the mobile phones, the prosecution has failed to give tower locations of the deceased's phone as well as phone of the appellant. Since the deceased and the appellant were known to each other, even as per prosecution case, therefore their call details which can only prove that they had talked to each other, would not be sufficient proof to establish the appellant’s involvement in the alleged offence of murder.

On perusal of the mobile phone documents, it is seen that, as per the certificate (Ex. P/72), mobile No. 9009232668 belongs to accused Prakash. However, as per the call records of Prakash (Ex. P/73), only the calling party, called number, call duration, Global ID, and call type have been mentioned. There is no indication of the tower location of the mobile phone. Therefore, there is no material to establish that the appellant and the deceased were under the same tower location at the relevant time or travelled together or at interval from or under same towers.

On examination of the statement of the appellant Prakash @ Munna recorded under Section 313 of the Cr.P.C., it is seen that the learned Trial Court put 209 questions to the appellant. Out of these, Questions No. 180, 185, 186, 187, 188, 189, 201, 202 and 203 relate to the mobile number. However, none of these questions specifically put to the appellant Prakash @ Munna suggest that, on the date of the incident, he was present in Betul or Kesla or at the place where the dead body of the deceased was recovered, so as to link him with the murder of the deceased.

We are constrained to observe that, in many criminal cases, the police, in a mechanical manner, obtains the CDRs and mobile phone identification details of the accused, victim, or deceased. However, no attempt is made by the Investigating Officer to obtain clear, precise, and specific details so as to ascertain the exact location of the accused and the deceased at the relevant time.

It is seen that even Public Prosecutor or the learned trial Court fails to deal with this piece of evidence in a proper manner because during examination of the witnesses, the relevant entries have to be marked separately, so as to show that on what particular date and time, whose phones SIM/IMEI converge at a particular place or travelled under which mobile towers. Simply asking to the accused about CDR report (Ex.P/73) is of no value to the prosecution and no conviction can be based on it. Clear and specific questions ought to be framed and put to the accused because when clear and specific prosecution evidence is not properly brought on record, the accused is deprived of a fair opportunity to cross-examine the witness with regard to the call details etc. In such circumstances, even the Trial Court would not be in a position to frame precise and specific questions for the accused to answer under Section 313 of the Cr.P.C.

In the present case, although the FSL report (Ex. P/87) shows the presence of Zinc Phosphide in the viscera of the deceased-Jagan Geed but prosecution has failed to prove, by reliable and cogent evidence, that the poisonous substance containing Zinc Phosphide was administered to the deceased by the appellant at Dhaba or elsewhere.

Therefore, for all the reasons stated above, we find that the learned Trial Court has failed to properly appreciate and evaluate the facts of the case in the light of the evidence adduced by both the parties. Hence, the appeal deserves to be allowed and is accordingly allowed. The conviction and sentence of the appellant Prakash @ Munna under Section 302 and 364 of IPC is set aside.

If the appellant is not required in any other case, he be released from jail forthwith, as the custody certificate issued by the Superintendent, Central Jail, Narmadapuram, dated 17/08/2026, produced by the learned Government Advocate at the time of hearing, shows that the appellant Prakash @ Munna has undergone actual custody for a period of 5 years, 3 months, and 17 days and is in jail.

With the aforesaid, the appeal is allowed and disposed of.