Full Judgment Text
NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.35 OF 2022
Mukesh ..Appellant(S)
Versus
The State of Madhya Pradesh ..Respondent(S)
J U D G M E N T
M. R. Shah, J.
1. Feeling aggrieved and dissatisfied with the impugned
judgment and order dated 24.09.2019 passed by the High
Court of Madhya Pradesh at Indore in Criminal Appeal No.
1244 of 2011 by which the High Court has dismissed the
said appeal and has confirmed the judgment and order of
conviction passed by the learned Trial Court convicting the
accused for the offences punishable under Section 302 read
Signature Not Verified
Digitally signed by
Rajni Mukhi
Date: 2022.01.18
14:12:02 IST
Reason:
with Section 34 of the IPC, original accused – Mukesh has
preferred the present appeal.
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2. That an FIR was lodged by one Nanbai – wife of the
deceased at the Police Station Nanpur, alleging that on the
Diwali night at about 10:00 or 11:00 pm the elder brother of
her husband (Jeth) – accused No.1 – Sekadiya and his son
Mukesh – accused No.2 came to her house to call her
husband saying that there had been cooked ‘Murga’ in their
house. According to the complainant, her husband – Vesta
went along with accused No.1 and accused No.2. According
to the complainant after sometime, she heard the voice of
crying/scream of her husband and she immediately rushed
to the house of her Jeth – accused No.1 – Sekadiya and she
saw in the light of electricity that accused No.3 – Jethani
(wife of accused No.1 – Sekadiya) had caught hold her
husband – Vesta and accused No.1 assaulted her husband
by Axe on the head, due to which Vesta fell down. As per
the case of the prosecution, the husband of the complainant
– Vesta died due to injuries from the axe. According to the
prosecution there was a land dispute and therefore the
accused persons killed the deceased by calling him at their
house. According to the prosecution the accused persons
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committed the offences punishable under Section 302 read
with Section 34 of the IPC. After conclusion of the
investigation, the Investigating Officer filed the chargesheet
against the accused for the aforesaid offences. The accused
pleaded not guilty and therefore all of them claimed to be
tried by the learned Sessions Court for the offences
punishable under Section 302 read with Section 34 of the
IPC. To prove the charge against accused the prosecution
examined in all eight witnesses out of which Nanbai – PW1
was the eye witness. The prosecution also brought on record
the documentary evidences including the medical evidence
through various witnesses. On closure of the evidence on
the side of the prosecution, statements of accused under
Section 313 Cr.PC were recorded in which the accused
stated that they have been falsely implicated in the case at
the instance of the Sarpanch due to enmity of election. On
appreciation of evidence, the learned Trial Court held all the
accused guilty for the offences punishable under Section
302 read with Section 34 of the IPC and sentenced all of
them to undergo life imprisonment.
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3. Feeling aggrieved and dissatisfied with the judgment and
order passed by the learned Trial Court accused preferred
an appeal before the High Court. By the impugned judgment
and order the High Court has partly allowed the said appeal
and has acquitted the original accused No.3 – wife of
accused No.1 (Jaithani), however, has dismissed the appeal
qua accused Nos.1 and 2.
4. Feeling aggrieved and dissatisfied with the impugned
judgment and order passed by the High Court original
accused No.1 and 2 preferred appeals before this Court.
Appeal qua accused No.1 – Sekadiya has been dismissed by
this Court earlier vide judgment/order dated 12.01.2021,
therefore, the present appeal is required to be considered
qua accused No.2 – Mukesh – son of accused No.1.
5. We have heard learned counsel appearing on behalf of the
respective parties at length. We have also gone through the
findings recorded by the learned Trial Court as well as the
reasoning given by the High Court while convicting Mukesh
– accused No.2 for the offences punishable under Section
302 read with Section 34 of the IPC. We have also gone
through the deposition of PW1 – original complainant – eye
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witness. The learned Trial Court has observed while
convicting the appellant – accused No.2 – Mukesh that he,
along with his father went to the house of the deceased to
call him for dinner as they had cooked ‘Murga’ and
thereafter accused No.1 inflicted the axe blows on the head
of the deceased – Vesta and thereafter dead body was
dragged by Mukesh also, which was thrown in the courtyard
(Aangan of the house of deceased) by accused Mukesh and
Sekadiya. The Trial Court has also observed that there was
a conspiracy hatched by all the accused to kill the deceased.
However, from the deposition of PW1 – eye witness it does
not appear that Mukesh had thrown the dead body in the
Aangan (courtyard). As such except the fact that accused
No.1 and accused No.2 came to the place of the deceased to
call the deceased for dinner at their house and the deceased
went with accused No.1 and accused No.2 no further role is
attributed to Mukesh – accused No.2. There is no overt act
alleged so far as accused No.2 – Mukesh is concerned. The
specific role and overt act is alleged against accused No.1
and accused No.3. However, unfortunately accused No.3
has been acquitted by the High Court against which no
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appeal is preferred by the State as of today. Be that it may,
solely on the basis that appellant – accused No.2 – Mukesh
accompanied with accused No.1 when they went to the
house of the deceased and invited him to dinner in their
house by that itself it cannot be said that there was any
criminal conspiracy hatched by all the accused. On the
contrary, there are specific allegations against accused No.1
and accused No.3 only and as observed hereinabove no
overt act at all is alleged so far as accused No.2 Mukesh is
concerned. As observed hereinabove, there are no
allegations even by PW1 that Mukesh had dragged the dead
body and thrown it into the courtyard of the deceased.
Therefore, the finding recorded by the learned Trial Court
against appellant – accused No.2 – Mukesh that he also
dragged the dead body and thrown into the courtyard of the
deceased is not supported by any evidence. Therefore, we
are of the opinion that both, Trial Court as well as the High
Court have committed a grave error in convicting appellant
herein – accused No.2 – Mukesh for the offences punishable
under Section 302 read with Section 34 of the IPC.
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Conviction and sentence of appellant – accused No.2 –
Mukesh is hence unsustainable.
12. In view of the above and for the reasons stated above, the
present appeal succeeds. The impugned judgment and order
passed by the High Court as well as that of the Trial Court
convicting appellant herein – Mukesh – original accused
No.2 for the offences punishable under Section 302 read
with Section 34 of the IPC is hereby quashed and set aside.
As per the custody certificate, a copy of which has
been placed at page No.94 of the paperbook, accused
Mukesh is presently undergoing sentence in Central Jail,
Barwani, M.P. Since, we have quashed and set aside the
judgment and order of conviction and sentence against him,
accused Mukesh be released forthwith, if not required in
any other case. The present appeal is accordingly allowed so
far as accused Mukesh is concerned.
…………………………………J.
(M. R. SHAH)
…………………………………J.
(B. V. NAGARATHNA)
New Delhi,
th
January 18 , 2022
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