STATE OF MADHYA PRADESH Vs. MAHESH MOHANLAL MALI

JUDGEMENT

(1.) The judgement in this case shall also govern the disposal of Criminal Appeal No. 46 of 1990 (Mahesh s/o Mohanlal Mali v. State of M.P.) and Criminal Appeal No. 81 of 1990 (Kalu s/o Gattulal Lodha v. State of M.P.).

(2.) (i) This Death Reference No. 1/90 and the two connected Criminal Appeals Nos. 81/90 (by appellant Kalu) and No. 46/90 (by appellant Mahesh) arise out of the common judgement in S.T. No. 74 of 1986, dated 2-2-1990, by Shri K.C. Jain, IIIrd Additional Sessions Judge, Dhar. (ii) The appellant Mahesh has been sentenced to death subject to confirmation by the High Court for causing the murder of Sonu, aged 8 years, i.e. offence under S.302, I.P.C., hence, the proceedings under S.366, Cr. P.C. have been submitted for confirmation. Mahesh has further been convicted under S.364, I.P.C. for kidnapping Sonu in order to murder, and has been sentenced to undergo 4 years' R.I. with direction that both the sentences shall be concurrent. Mahesh has preferred appeal against his convictions and sentences (Criminal Appeal No. 46 of 1990). (iii) The appellant Kalu convicted for offences under Ss.302 and 364, I.P.C. has been sentenced to imprisonment for life, and 4 years' R.I. respectively with similar direction. He has also preferred an appeal against his convictions and sentences (Cr. Appeal 81/90). (iv) Convictions and sentences of both the appellants for offences under S.201, I.P.C. have not been separately recorded on ground that both have been convicted of the main offence under S.302, I.P.C. One co-accused Bheru Singh, who was tried on charge under S.201, I.P.C. has been acquitted. The State has not preferred appeal against his acquittal.

(3.) (i) According to the prosecution, on 23-12-85, at 10.10 p.m., (P.W.-1) Vallabha Vijaywargiya lodged a report Sana No. 1909 (Ex. P-8), at P.S. Dhar, stating, that his brother's son Sonu, aged 8 years, at 7 p.m. was playing outside his residence-cum-office, situated at Ras Mandal (Mohalla), Kalu (appellant), his ex-servant, who often gave chocolates to Sonu, had given chocolates, that he (Vallabh PW-1 then went away to his talkies, but on his return home at 9 p.m., did not find Sonu; that, in spite of search, Sonu was missing. This report about the missing boy gave his description also, besides the information that he has wearing a T-shirt of almond colour and green coloured shorts. This report was recorded by PW-13 Nagar, Head Constable at Police Station, Dhar and (PW-23) Shri Chouhan entrusted it to Ram chandra, H.C., for inquiry. (ii) According to the charge-sheet, Kalu had worked before at the house of the complainant. The child Sonu was attached to him. The former (Kalu) often gave him chocolates, and even after termination of his services, Kalu visited the family. Both the appellants were friends. Mahesh (appellant) was in love with one Sunita Rathore (not, examined), whom he wanted to marry and live at Indore, but had no money. Hence, for extorting money, the appellants wrote and left a threatening letter, and accordingly, Kalu took away Sonu. Thereafter, both the appellants took Sonu towards the field of Mahesh on temptation of eating green peas. Sonu, with the T-shirt, was strangulated, and his dead body was placed in a deep ditch near a hillock (called 'Bardi') and covered with stones for concealment. (iii) It is further alleged, that on 25-12-85, at 10.15 a.m., (PW-23) Nirbhaysingh Chouhan (S.O.) arrested both these appellants (Arrest Memo Ex. P-15, P-16). Mahesh, on interrogation, made a disclosure statement Ex. P-17 in presence of one Ramesh and (PW-18) Yeshwantrao. Since the information disclosed that the body was buried, the S.O. (PW-23) sought, vide a memo (Ex. D-6) addressed to the S.D.M. for disinterring the body, which probably purports to have been done in view of S.176, Cr. P.C. That is how (PW-16) Shri Sengar, Naib Tehsildar and Executive Magistrate on receiving information from A.D.M. reached P.S. at about 12.30 noon, and accompanied the Police, which allegedly was led by Mahesh (appellant) to the place from where the dead body in the ditch, covered with stones, was recovered at his (Mahesh's) instance (Information memo by Mahesh P-17 at 10.15 a.m. seizure memo P-19 at 1.15 noon). Shri Chouhan also prepared a site plan (Ex. P-20) at 13.20 hours and a Panchnama Lash (Ex. P-18). PW-17 Jaiprakash, who had accompanied the party, had taken photographs of the spot of recovery. The dead body was brought in another vehicle and sent for postmortem vide requisition (Ex. P-22). The offences were registered on 25-12-85 at 3. p.m. (Ex. P-27).