Mukesh vs State of Madhya Pradesh

Mukesh vs State of Madhya Pradesh -  Supreme Court Case 2022

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

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, 

January 18th, 2022

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