Madhya Pradesh High Court
Gamesh vs State Of M.P. on 24 November, 2021
Author: Vivek Rusia
Bench: Satyendra Kumar Singh, Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B.: Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Satyendra Kumar Singh , JJ.
Criminal Appeal No.1192/2009
Ganesh S/o Bhagwan Harijan, aged
about 30 years, R/o Nagjhiri Thana Appellant (s)
Mengaon, District Khargone
Versus
State of M.P. through P.S. Mengaon,
District Khargone Respondent (s)
Shri Darshan Arora, learned counsel for the appellant.
Shri Hemant Sharma. learned Government Advocate for the
respondent/State.
JUDGMENT
(Heard and reserved on 18.11. 2021) (Delivered on 24.11.2021) PER VIVEK RUSIA, J: -
The appellant has filed this criminal appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 26.08.2009, passed by 2 nd Additional Sessions Judge, Khargone, West Nimar in Sessions Trial No.69/2009, by which he has been convicted for offence under Sections 302 of Indian Penal Code (for short "IPC") and Section 25 (1-
b) (b) of Arms Act and sentenced to undergo life imprisonment and one Year R.I. with fine of Rs. 1000/- and Rs. 200/- with default stipulation.
(2) The case of the prosecution, in brief, is as follows: -
(i) As per the prosecution story, on 17.01.2009 Ganesh (hereinafter referred to as 'appellant/accused') went to the house of Sewakram (hereinafter referred to as ' deceased') at Village Khedi Khurd. After taking meal, Kamla Bai (PW-9), Maya (PW-6), Ajay PW-1) and Pawan (PW-5) went to sleep. Near about 01:00 am, the deceased shouted that
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the appellant/accused has attacked him. Ajay and Kamla Bai woke up and saw the knife in the hand of the appellant. The deceased was lying inverted with three stabbed wounds on his back. Radheshyam (PW-4), Kusumbai (PW-7) and Narendra Sawle (PW-11) also came there. After seeing all of them, the appellant fled away from the spot. All the aforesaid persons took the deceased to the Government hospital where he was declared dead. Dehati Nalish (Ex.P/1) was lodged by Ajay (PW-1) and the investigation was set into motion. Spot map (Ex.P/2) was prepared. Blood soaked soil, plain soil were seized in presence of PW-2 and PW-3. Statements of witnesses were taken and the appellant was arrested. On his memorandum statement recorded under Section 27 of the Indian Evidence Act, blood-stained knife and blood contained shirt and vest were seized vide Ex.P/4. The dead body was sent for autopsy which was conducted by Dr. R.R. Joshi (PW-18).
After conducting the autopsy, he gave the opinion that the deceased died due to neurogenic shock and injuries on his lungs. He gave query report Ex.P/11, the injuries might have been caused by knife recovered by the present appellant. After completing the investigation, charge- sheet was filed. The trial was committed to the Sessions Court on 20.04.2009. The Sessions Judge framed the charge under section 302 I.P.C. , which was denied by the appellant and pleaded for trial.
(3) The prosecution has examined as many as 17 witnesses as PW-1 to PW-17 and exhibited 17 documents as Ex.P/1 to Ex. P/15. In defence, the appellant did not examine any witnesses but got exhibited statements of Chetram, Kalabai and Kamlabai recorder under section 161 of Cr.P.C. as D/1 to D/3.
(4) After valuing the evidence, came on record, the learned 2 nd Additional Sessions Judge has convicted and sentenced the appellant as stated above. Hence, this appeal before this Court. Hence, this appeal before this Court.
(5) The admitted facts of the case are that deceased Sewakram and Kamlabai were husband and wife. Appellant is the brother of Smt.
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Kamlabai. Ajay Pawan and Maya are the son and daughter of the deceased Sewakram and Kamlabai. Kalabai (PW-8) and Bhagwan (PW-10) are the father and mother of the appellant and Smt. Kamlabai. On the date of the incident, the appellant went to the house of the deceased and stayed in the night without taking dinner. One month prior to the date of the incident, the appellant had disputed with his father and mother on the issue of the sale of agricultural land by them. Accused purchased the motorcycle and mobile from the sale amount came in his share and sold them. The appellant was arrested from Khargone and on his disclosure knife and clothes were recovered.
(6) We have heard learned counsel for the parties and perused the record of the trial court.
(7) The learned Sessions court in order to examine the complicity of this appellant has framed three issues as under:
(i) Whether the death of Sewakram is homicidal death ?
(ii) Whether the appellant has murdered Sewakram ?
(iii) Whether the appellant kept the knife illegally with him?
(8) So far as the nature and cause of death of the deceased is concerned, the prosecution has examined Dr.R.R. Joshi (PW-18), who states that constable Ranjeet brought the dead body and he found three incised wounds on his back. He has described the size of wounds in his deposition as well as in the postmortem report. As per his opinion, the deceased died due to inward penetrative wounds on the left lung leading to neurogenic shock. As per his opinion, injury No.3 was fatal as it was so deep to the extent of puncturing the left lungs. He was cross-examined and various suggestions were given, which has been denied by him. We find no reason to disbelieve the testimony of Dr. R.R. Johsi (PW-18) who is an expert in his field and there is no challenge to his testimony by the appellant and the learned Additional Sessions Judge has rightly concluded that the death was homicidal. In this criminal appeal there is no challenge to the aforesaid finding
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recorded by the trial court. Hence, we hereby affirmed the same.
(9) Second issued which is liable to be examined as to whether the appellant has rightly been convicted under Section 302 of I.P.C?
(10) As per the prosecution story, on the date of the incident, the appellant visited the house of his sister Smt. Kamlabai and the deceased. He refused to take the meal and went to sleep. Near about 01:00 am in midnight, the deceased shouted, Ajay (PW-1) who was sleeping in another room heard the cry of his father, immediately rushed there and saw that the appellant was running after stabbing his father. His father was following but fell outside the house. He saw three injuries on his back. According to him due to a dispute of money received in the sale of ancestral land, the appellant has murdered his father.
(11) Prosecution has examined Pawan (PW-5), who was 11 years old at the time of deposition in the Court. The learned court has put certain questions in order to record its satisfaction that he is capable to give evidence in the Court. After permission was givem by the court he has fully supported the case of the prosecution in his deposition. He also woke up after hearing the voice of his father and saw the appellant running from his house with a knife in his hand. Likewise, Kumari Maya (PW-6) also heard the cry of her father in the night and saw the appellant running from the house and injured father lying there.
(12). Kamlabai (PW-8), who is not the only wife of the deceased but the sister of the appellant also deposed against the appellant.
According to her, she was sleeping in the room along with the deceased and her daughter Maya. Ajay, Pawan and the appellant were sleeping in another room. The door between the two rooms was opened. She heard the cry of the deceased that the appellant is assaulting her husband. She woke up and saw that the appellant is running from his house and her husband followed him but thereafter fell. She saw the three injuries of the deceased. Therefore, there are ocular witnesses in this case, who are close relatives of the appellant as
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well as the deceased. Apart from all these witnesses, the prosecution has examined independent witnesses namely Yashwant (PW-2), Radheshyam (PW-4), Chetram (PW-7), Narendra Sanvale (PW-11) and Chandra Shekhar (PW-12) who have supported the case of the prosecution as well. They all saw either the deceased resting in the house with the stabbed wounds or the appellant running with the knife from the house.
(13). The police has recovered the knife on disclosure of this appellant and bloodstains cloths. All were sent to FSL and as per the FSL report human blood was found in the shirt, vest and knife recovered from the appellant. This FSL report is exempted in Cr.P.C.
to be proved by calling the scientific officer in the witness box.
(14) In the statement of the appellant recorded under Section 313 of Cr.P.C., he has admitted that on the date of the incident, he went to the house of the deceased and went to sleep without taking dinner. He has also admitted that the deceased sustained the injury. He also admitted about the sale of land and motorcycle. When a specific question was put to him that all the witnesses are saying that the Sewakram sustained the injury on his back, he has admitted and said that he inflicted the injury on his back. Therefore, the appellant own admission leaves no doubt that he has murdered his own brother-in- law Sewakram.
(15) So far as the motive behind this killing is concerned, the prosecution has examined mother Kalabai (PW-8) and Bhagwan (PW-
10), who have admitted that the appellant was not happy with the sale of the land. Accordingly to them, they had 14 acres of land and this appellant has sold the land in Rs. 6,00,000/- and purchased the motorcycle and mobile etc. Rs.3,00,000/- was deposited in their joint account and the remaining Rs.3,00,000/- was kept by the appellant. After spending his money, he was demanding their money from the bank. He has broken the leg of Kalabai by an iron rod. They have also admitted that on the date of the incident, the appellant went to the
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house of the deceased. Therefore, the prosecution has established the motive, thus he has rightly been convicted for murdering his own brother-in-law. Although learned counsel has assailed that it is a case of culpable homicide not amounting to murder as the appellant did not stab the deceased with the intention to kill. He did not go to the house of the deceased to kill him. There was no pre-planned murder hence, this offence will be under section 304 (Part-II) of I.P.C.
(16) We have examined the same but in our opinion, the appellant went to the house of the deceased with a knife. There was no sudden provocation or altercation before the crime by the deceased. When the deceased was sleeping, he inflicted three injuries on his back one of them turned fatal, therefore, there was no provocation or altercation before the crime. He did not commit the crime in heat of passion but in a planned manner. Hence, he has rightly been convicted for the offence punishable under Section 302 of I.P.C.
(17) In view of the above, discussion, we hereby confirm the judgment dated 26.08.2009 passed in S.T. No.69/2009 whereby the appellant has been convicted for the offence punishable under Section 302 of I.P.C. for murdering his sister's husband i.e. Sewakram.
(18). The Criminal Appeal filed by the appellant is hereby dismissed.
The registry is directed to send back the Trial Court records forthwith along with the copy of this judgment.
(VIVEK RUSIA ) (SATYENDRA KUMAR SINGH )
JUDGE JUDGE
praveen
Digitally signed by PRAVEEN
NAYAK
Date: 2021.11.24 18:57:07
+05'30'