Madhya Pradesh High Court
Narendra Singh Kushwaha vs The State Of M.P. on 2 May, 2018
Author: S.K.Awasthi
Bench: S.K.Awasthi
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HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B: HON'BLE SHRI JUSTICE P.K.JAISWAL &
HON'BLE SHRI JUSTICE S.K.AWASTHI
CRIMINAL APPEAL NO.509/2000
NARENDRA S/O RAMAVTAR KUSHWAHA
Vs.
STATE OF M.P
Shri Mohan Sharma, Advocate for the appellant.
Shri Bhuvan Gautam, Public Prosecutor for the
respondent/State.
JUGDGMENT (Delivered on 02/05/2018) Per S.K.Awasthi, J:
By this appeal, the appellant assails the judgment dated 10.04.2000 of the learned Ist Additional Sessions Judge, Shajapur in Suppl. Sessions Trial No.90/99 by which the learned trial Court has convicted the appellant for an offence punishable under Section 302 of the IPC read with Section 34 thereof and sentenced to imprisonment for life and fine of Rs.1,00,000/-; in default of payment of fine, the appellant was directed to undergo further RI for 3 years.
2. Co-accused Devendra, Bhupendra and Parmendra were prosecuted separately in Original Sessions Trial No.204/1996 as the main accused/appellant Narendra went absconding. After trial, the co- accused persons were convicted vide judgment dated 09.04.1997 under section 302/34 of the IPC and sentenced them to undergo imprisonment for life with fine of Rs.1,000/-. After arrest of the present appellant Narendra, supplementary charge sheet was filed against him in the year 1999 and he was tried in Suppl. Sessions Trial No.90/99. Before -2- commencement of the suppl. Sessions Trial No.90/99, the prime eye- witness of the incident i.e Narendra Kumar, the father of the deceased Jitendra (PW/1 in Original Sessions Trial No.204/1996) died somewhere in the year 1998.
3. The case of the prosecution in brief was that there was enmity between deceased Jitendra and accused/appellant Narendra on the ground that Jitendra had eloped with his sister and after demise of his father, he had prompted his wife Meenakshi (PW/4) to make a claim in the family property. On 27.08.1996 at about 5.30 in the morning while Jitendra followed by his father Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) was proceeding towards his tea stall and had crossed the river and reached the culvert, the appellant Narendra along with co-accused Bhupendra, Devendra and Parmendra approached from the side of Mhowpura road. Narendra was armed with a sword, Bhupendra with a daggar while Devendra and Parmendra each with knife. He was surrounded by the miscreants and mercilessly assaulted by the weapons stating that he was demanding share in the property and that they would do away with him. He was first assaulted by the accused/appellant Narendra on his neck by means of a sword with the result he fell down and thereafter the other accused pounced on him. The father of the deceased Narendra shouted for help which attracted Sanjay Sharma (PW/1) and Karan Singh Gujar (PW/3). On seeing that persons from the surrounding were approaching, the accused ran away from the scene of occurrance.
4. Jitendra died instantaneously. After a while Narendra approached P.S Shajapur where FIR (Ex.P/16-C) was lodged at 6.50 A.M on the same day. On the basis of the said report, offence was registered and Sohanpal Singh Choudhari (PW/9) commenced investigation in which he proceeded to draw a spot map (Ex.P/13-C), -3- and made inquest report and forwarded the body of the deceased to the hospital for postmortem. He recorded the statement of the witnesses acquainted with the facts of the case and also seized the articles such as Chappal, key bunch lying on the spot vide memo Ex.P/8-C and took samples of blood stained and plain earth vide Ex.P/9-C. The accused persons were arrested and on their making disclosure has recorded in memo under section 27 of the Evidence Act, weapons were seized at their instance. These articles were sent to the Forensic Science Laboratory for examination and as per report (Ex.P/--), they were found blood stained. After completion of the investigation, charge sheet was filed before the Chief Judicial Magistrate, Shajapur who committed the case to the Court of Session and ultimately it was transferrred to the Court of Ist Additional Sessions Judge, Shajapur for trial.
5. The appellant abjured his guilt and stated that he was innocent. Although he did not take any specific plea but he has stated that he was falsely implicated in the matter, however, in defence he examined six witnesses viz. Pankaj Saxena (DW/1), Manroop Singh (DW/2), Shirv Prakash Sharma (DW/3), Bhagwanpuri (DW/4), Dashrathlal Ahirwar (DW/5) and Raghupathi Dubey (DW/6).
6. The trial Court after appreciating the evidence adduced by the parties, pronounced the impugned judgment dated 10.04.2000 and concluded that the appellant is liable to be convicted for the commission of offence punishable under section 302 read with section 34 of the IPC and deserves to be sentenced for life imprisonment, hence he has challenged the said conviction and sentence in this appeal.
7. Learned counsel for the appellant has submitted that although number of persons were cited by the prosecution as eye witnesses, only the father of the deceased viz, Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) supported the case of the prosecution.
-4-During the present trial, the eye-witness Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) was not examined by the prosecution. Although summons was issued to Narendra Kumar, however, the summons received back unserved with the report that he has died, therefore, the accused/appellant could not get the opportunity to cross examine the said witness. The trial Court considering the evidence given by Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) convicted the accused/appellant for the offence under section 302/34 of the IPC, therefore, the trial Court has committed a grave error in convicting the appellant for the aforesaid offence. Under these circumstances, learned counsel for the appellant contends that the appellant deserves to be acquitted and the judgment of conviction cannot be sustained.
8. On the contrary, learned Public Prosecutor submits that after the incident the accused/appellant Narendra went absconding, therefore, charge sheet was filed showing him to be absconder and the eye- witness of the incident Narendra Kumar has died before his arrest. Therefore, looking to the provision of section 33 of the Evidence Act and section 299 of the Cr.P.C, the statement of Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) recorded by the trial Court with respect to other co-accused persons is admissible in evidence and the learned trial Court has rightly considered the statement of Narendra Kumar in the trial of the present accused/appellant. He further submits that learned Sessions Judge has minutely analyzed the evidence of the prosecution and the fact that in the promptly lodged FIR the name of the appellant figures as the main accused who inflicted sword injury on the neck of the deceased Jitendra and as a result of which he fell down and thereafter the other co-accused persons pounced on him which -5- clearly establishes the offence against him and no interference is called for in this appeal.
9. We have heard learned counsel for the parties and perused the record.
10. First of all it is to be considered that whether the death of deceased Jitendra was homicidal in nature or not. In this connection the evidence provided by Dr.Kapil Sahai (PW/7) is important who conducted the postmortem of the dead body of deceased Jitendra and found the following ante-mortem injuries on his body.
1. Incised wound 3" x 1cm x skin deep right forearm upper radial aspect horizontal.
2. Incised wound below injury one 3.5 x 1 x skin deep vertical.
3. Incised wound 9cm x 3 cm x muscle deep right forearm mid 1/3rd vertically dorsally.
4. Incised wound 3cm x 1cm x 1cm bone of right thumb.
5. Incised wound ½ cm x ½ cm x skin deep bone of right index finger dorsum.
6. Incised wound 9 cm x c cm x muscle deep medial border right palm from bone of little finger to wrist.
7. Incised wound right angle of jaw 3 cm x 1 cm x muscle deep.
8. Incised wound over front of neck extending side to side 11 cm x 6 cm x 4 cm situated 4th posterior to tip of chin, skin, muscles and vessels cut and retrocted, trechea cut and retracted above the thyroid cartiledge, oesophagus cut and retracted, vertical vertebrae with over lying soft tissue exposed, clots present.
9. Incised wound over chest right side anterior at the level of nipple medially 4 cm x 3 cm x cavity deep horizontal oblique.
10. Incised wound 4 cm x 2 cm x 1-1/2 cm backwards upwards 3 cm below injury No.9.
11. Incised wound 7 cm x 2 cm x cavity deep upwards medially right anterior axillary line lower chest. Cut present in the lever.
12. Incised wound 3 cm x 1-1/2 cm x bone deep horizontal medial to injury No.11.
-6-13. Incised wound 3 cm x 1 cm x bone deep oblique and 1.5 cm above and medially to injury No.12 over chest.
14. Incised wound 8 cm x 2 cm cavity deep horizontally.
Epigastric region intestine cut.
15. Incised wound 8 cm x 3 cm cavity deep horizontal slightly on left side of midline below injury No.14.
16. Incised wound 1-1/2 cm x ½ cm x 2 cm left side umblicus horizontal.
17. Loop of intestine and cut present L/F coming out of incised wound 8-1/2 cm x 5-1/2 cm x cavity deep horizontally.
18. Incised wound 2 cm x ½ cm x skin deep left forearm mid third ulna aspect.
19. Incised wound 2 cm x ½ cm x skin deep left middle phalynx index.
20. Incised wound 5 cm x 2 cm muscle deep vertical right forearm middle anterior.
21. Incised wound 5 cm x 2 cm x muscle deep medial to injury No.20.
22. Incised wound 2-1/2 cm x 1 cm x muscle deep with back lumber region oblique.
23. Incised wound 3 cm x 1 cm x muscle deep horizontal left back below injury No.22.
11. According to the opinion of the doctor, Jitendra died due to cumulative effect of the injuries to vital organ liver and multiple injuries over the body. The injuries found on the body of the deceased neither could be self inflicted nor sustained in any accident, therefore, it is presumed that death of deceased Jitendra was homicidal in nature. Now the question remains whether the appellant has caused the death of deceased Jitendra by causing injuries in the manner alleged by the prosecution.
12. From the perusal of the record of the trial Court it is evident that after the incident the main accused/appellant Narendra went absconding and charge sheet was filed against other co-accused persons. Their trial was concluded and they have been convicted for the charge levelled against them vide judgment dated 09.04.1997. After that appellant Narendra was arrested by the Police on 04.06.1999 -7- and supplementary charge sheet was filed against him. After framing the charge against the appellant the case was fixed for prosecution evidence. The summon was issued to the eye-witness Narendra Kumar, the father of the deceased (PW/1 in Original Sessions Trial No.204/1996), however, the same was received unserved with the report that he has died. The statement of the eye-witness of the incident Narendra Kumar was recorded in Original Sessions Trial No.204/1996 and he was cross examined by the counsel for the other co-accused persons. In the case of Nirmal Singh vs. State of Haryana reported in AIR 2000 SC 1416 the Apex Court has held under what circumstances and by what method, the statements of the persons could have been rendered in the case for being admissible under section 33 of the Evidence Act and whether it can form the basis of conviction. Section 299 of the Code of Criminal Procedure consists of two parts. The first part speaks of the circumstances under which witnesses produced by the prosecution could be examined in the absence of the accused and the second part speaks of the circumstances when such deposition can be given in evidence against the accused in any enquiry or trial for the offence with which he is charged. The procedure contemplated under section 299 of the Code of Criminal Procedure is thus an exception to the principle embodied in section 33 of the Evidence Act inasmuch as under section 33 the evidence of a witness, which a party has no right or opportunity to cross examine is not legally admissible. Since the law empowers the Court to utilize the statements of such persons whose statements were recorded in the absence of the accused is an exception to the normal principles embodied in section 33 of the Evidence Act inasmuch as the accused can be denied the opportunity of cross- examination of the witness under section 33 of the Evidence Act on the ground that the witness was incapable of giving evidence or he has died -8- or is not available and his/her evidence can be admissible against the accused persons. Therefore, the contention of the learned counsel for the appellant that the trial Court has committed a grave error in considering the evidence of Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) is not tenable.
13. We have already referred to the injuries found on the body and the opinion of Dr.Kapil Sahai. In order to unfold the story, the prosecution examined Sanjay Sharma (PW/1), Vijay Kumar (PW/2), Karan Singh Gujar (PW/3), Meenakshi (PW/4), Pradeep Sharma (PW/5), Ramesh Chandra Malviya (PW/6), Dr.Kapil Sahai (PW/7), Ambaram (PW/8) and Sohanpal Singh Choudhary (PW/9). Apart from Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996), the other witnesses referred to above did not support the prosecution case and they were declared hostile. Wife of the deceased Meenakshi (PW/4) was also examined to show that immediately after the incident her father-in-law Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) had related the event to her but she also did not support the prosecution case on this count and she was also declared hostile. The pivotal witness of the prosecution is, therefore, Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) who was allegedly following the deceased from behind while the deceased was proceeding towards his tea stall.
14. Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) has stated that on the fateful day he was following his son Jitendra while he was going to his shop as they had crossed the river and reached Mhowpura Road, the four accused persons arrived there. Accused/appellant Narendra was armed with sword, Bhupendra with daggar and Premchandra and Devendra each had knife. They surrounded the deceased and started assaulting his son stating that now -9- they will give him the share in the property. He had clearly seen Narendra dealing a blow of sword on the neck of Jitendra but he could not actually see as to which part of the body was attacked by the other accused. His son had sustained injury on the abdomen, chest, cheek and legs. From the distance, it could not be seen as to which accused caused the particular injury. Just then Karansingh, Sanjay and Vinay arrived and the accused ran away from the scene of occurrence. He has further stated that his son had married Meenakshi against the wishes of the accused/appellant Narendra. Since father of Narendra had died, Meenakshi was demanding 1/6th share and the accused/appellant Narendra was resisting. It was on account of this that the accused persons have caused injuries to Jitendra. In his cross-examination he has admitted that his son was involved in about four criminal cases but he has refuted the suggestion that he was a history sheeter. He has also denied that it was on account of his being a history sheeter that he had asked him to live separately. He has categorically stated that he had seen all the four persons participating in the incident and running away. In cross-examination he has again emphatically said that he had definitely recognized the assailants. He has stated that when accused persons had surrounded Jitendra, accused/appellant Narendra was in front of him and the other three co-accused persons had their back towards him but at the same time, refuted the suggestion that the names of co-accused Devendra, Bhupendra and Parmendra were mentioned on account of suspicion.
15. The contention of the learned counsel for the appellant that since the witness did not have a clear view of the assailants, it is only on account of the long history of feud between the family that the father of the deceased assumed that the present appellant and the other co- accused persons were the assailants and on that basis he stated that the -10- appellant and the other co-accused persons were the miscreants. We have given our anxious consideration to the submission made by the learned counsel. When we examine the conduct of Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) despite the fact that he had lost his real son in the incident, he had immediately proceeded to the Police Station and within 15 minutes of the incident he had lodged the report. He has denied that the report was brought into being later on and ante-timed. The other circumstances on record show that the report was not ante-timed and we are, therefore, convinced that the report Ex.P/16-C was lodged at 6.50 A.M, the time mentioned in the report. During such a short period, there was no occasion for Narendra Kumar (PW/1 in Original Sessions Trial No.204/1996) to deliberate with anyone or to have time to think and create story and that too against the persons who were his own nephews and who are not involved in the dispute between the accused/appellant Narendra and his sister Meenakshi (PW/4) and her husband Jitendra. Under these circumstances, stark facts were given out to the Police and the names of the culprits duly find place in it. We are, therefore, of the view that it is not on the basis of any impression that the names were given but on the basis of what the said witness perceived that the names of the accused were mentioned. We may also add that the admission of the witness with regard to the back of the co-accused being towards him is only with reference to the point of time when these persons had surrounded the deceased. It is not the case of the prosecution or of the defence that these persons remained stationary once they surrounded the deceased. The fact that the deceased fell down on the ground after the first blow administered by the present accused/appellant Narendra itself suggests that position of the accused vis-a-vis the deceased kept changing from time to time. As many as 23 injuries were caused by the accused which -11- also must have taken quite some time. Although the appellant examined six defence witnesses, however, we do not find any substance in their statements by which the case of the prosecution can be disbelieved.
16. In view of the above discussion, in our considered opinion, the eye-witness account is duly supported by the prompt FIR and the medical evidence. In the result, we find that the prosecution has succeeded in establishing its case against the appellant and we do not find any merit or substance in this appeal. The appeal is accordingly dismissed. The appellant is on bail. His bail bonds are hereby canceled. He is directed to surrender before the trial Court without any delay so that he may be sent for execution of the remaining part of sentence.
A copy of this judgment be also sent to the trial Court along with record for information and necessary action.
(P.K.JAISWAL) (S.K.AWASTHI)
JUDGE JUDGE
hk/
Digitally signed by Hari Kumar
Nair
Date: 2018.05.03 11:07:34 -07'00'