Kishore Jadiya vs The State Of Madhya Pradesh on 28 February, 2018

[Cites 12, Cited by 15]

Madhya Pradesh High Court

Kishore Jadiya vs The State Of Madhya Pradesh on 28 February, 2018

Equivalent citations: AIRONLINE 2018 MP 9

All the above appeals have been filed by the accused persons being aggrieved by judgment dated 24.12.2007 passed by 1 st Additional Sessions Judge, Sagar in S.T. No.450/2006, whereby the appellant Kishore has been convicted for offence under Section 302 of the IPC and other appellants have been convicted for offences punishable under Sections 302/34 of the IPC and sentenced for imprisonment for life with fine of Rs.3000/- with default stipulations.

2. Since co-accused Manoj Soni @ Noona is juvenile, he is facing trial at Juvenile Justice Board, Sagar.

3. It is alleged by the prosecution that, on 2.9.2006, in front of Vidhyapeeth School, Vivekanand Ward, Sagar, there was celebration of Ganesh Utsav. The complainant Sonu was sitting along with his uncle Sunil in a bench. Suddenly, all the appellants came there from Bada Bazar and surrounded Sunil Soni. Due to old enmity, the appellant Kishore caused multiple knife injuries to Sunil. Other appellants caught Sunil (since deceased) while the appellant Kishore caused the injuries. Sunil died on the spot. Seeta, Jai Narayan, Bhagirath Soni and others, witnessed the incident. On the same day, (FIR Ex.P/6) has been lodged by Sunil at Police Station, Moti Nagar, Sagar. Police registered crime for offence punishable under Sections 302/34 of the IPC against the appellants. After concluding the investigation, charge sheet has been filed before the Court of Judicial 3 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008 Magistrate First Class, Sagar.

4. After committal of the case, learned trial Court framed charges under Section 302 of IPC against the appellant Kishore and Sections 302/34 of IPC against other appellants. They abjured guilt and pleaded that, they were falsely implicated by the complainant party. Dr. B.K. Mishra (DW-1) has been examined as defence witness.

5. Learned trial Court found that the testimony of Sonu (PW-3) is reliable, which has been clearly corroborated by the medical evidence. He has no ulterior motive to falsely implicate the appellants. Hence, after relying the said evidence, learned trial Court held the appellants guilty for committing murder of Sunil in furtherance of their common intention. Hence, they were convicted and sentenced as mentioned above.

6. The appellants challenged the impugned judgment on the ground that the Court below wrongly believed the solitary evidence of Sunil (PW-3), a real nephew of the deceased. Further that, the trial Court failed to appreciate that prosecution has failed to prove the motive of the appellants to commit the offence. It was alleged by the appellants that the said incident have taken place on the spur of moment. Therefore, no case should have been made out against the appellants under Sections 302 or 302/34 of the IPC. The appellants prayed that the impugned judgment be set aside and they be acquitted from the charges levelled against them.

7. Learned Govt. Advocate has vehemently opposed the contention of learned counsel for the appellants and submitted that conviction can be based on sole testimony of a witness with the aid of 4 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008 Section 34 of the IPC. Appellants Devendra and Ramu are liable to be convicted with the main accused Kishore for offence under Section 302 of the IPC. There is sufficient evidence on record against them. Hence, he has prayed for dismissal of the present appeals.

8. Perused the record.

9. After considering the above arguments, we are re-appreciating the prosecution evidence.

10. Learned trial Court has mainly relied the testimony of Sonu (PW-3). It is not in dispute that he is nephew of the deceased. He deposed that on the date of incident at about 10:30 p.m., he was sitting along with his uncle Sunil on the strip of Vidhyapeeth School. Suddenly, all the appellants with juvenile Noona came there and surrounded his uncle Sunil. Juvenile Noona and appellant Devendra caught hold the hands of Sunil, whereas appellant Ramu caught hold the hairs of Sunil, they all were assaulting Sunil by kicks and fists. The appellant Kishore inflicted multiple blows by knife on his abdomen and left side of his chest. When Sonu (PW-

3) shouted for help, the appellants tried to beat him. His uncle fell down on the earth towards his face. Again, all the appellants were assaulting his uncle Sunil. Then, the appellant Kishore inflicted a knife blow on his back. Sunil was unconscious but alive. Sonu's father Jai Narayan, mother Vidhya, sister Sita and one neighbour Bhagchand came there. Then the appellants ran away from the spot. Sunil was taken to Tilli Hospital, Sagar by Jai Narayan, where Sunil was declared dead. Thereafter, FIR (Ex.P/6) has been lodged by Sonu (PW-3) at Police Station.

5 Cr. A. No.202/2008

Cr. A. No.452/2008 Cr. A. No.732/2008

11. Bhagirath (PW-8) also witnessed the incident. He deposed similar version of Sonu (PW-3) and narrated that at the time of incident, he was present at the spot and was present at a distance of 20-25 ft. He also deposed that only the appellant Kishore inflicted knife blows to Sunil, whereas, other appellants caught him. In para 5, he gave same statement. He also established the presence of Sonu on the spot. We find that presence of Sonu (PW-3) on the spot is strongly established by his cross- examination. Therefore, we have no reason to disbelieve his testimony.

12. Learned counsel for the appellants has submitted that the testimony of Bhagirath is contradictory with his police statement Ex.D/1. We are not inclined to accept this contention because there is no material contradiction or omission in his statement. The gist of Sonu's testimony is that the appellants Ramu and Devendra surrounded Sunil and caught him, while the main accused Kishore assaulted Sunil by knife.

13. In case of Sudip Kumar Sen @ Biltu Vs. State of West Bengal and others, (2016) 3 SCC 26, it has been held as under:-

"Section 34 IPC embodies the principle of joint liability in the doing of a criminal act and essence of that liability is the existence of common intention. Common intention implies acting in concert and existence of a pre-arranged plan which is to be proved/inferred either from the conduct of the accused persons or from attendant circumstances. To invoke Section 34 IPC, it must be established that the criminal act was done by more than one person in furtherance of common intention of all. It must, therefore, be proved that:-

(i) there was common intention on the part of several persons to commit a particular crime and

(ii) the crime was actually committed by them in furtherance of that common intention. Common intention implies pre-arranged plan. Under Section 34 IPC, a pre-concert in the sense of a distinct 6 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008 previous plan is not necessary to be proved. The essence of liability under Section 34 IPC is conscious mind of persons participating in the criminal action to bring about a particular result.

The question whether there was any common intention or not depends upon inference to be drawn from the proved facts and circumstances of each case. The totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. See also. Ranbeer Singh (dead) by Legal Representative Vs. State of Uttar Pradesh and others, (2015) 12 SCC 221 and Rajkishore Purohit Vs. State of Madhya Pradesh and others, (2017) 9 SCC 483.

"It is not possible to read a person's mind. There can hardly be direct evidence of common intention. Existence or non-existence of common intention amongst accused has to be deciphered cumulatively from their conduct and behavior in facts and circumstances of each case. Events prior to occurrence as also after and during occurrence, are all relevant to deduce if there existed any common intention. There can be no straitjacket formula. Absence of any overt act of assault, exhortation or possession of weapon, cannot be singularly determinative of absence of common intention".

14. Thus, we hold that the testimony of Sonu (PW-3) and Bhagirath (PW-8) are cogent and trustworthy. There is no reasonable ground to discard their testimony. They duly proved that the appellant Kishore killed Sunil by inflicting several blows by knife on the vital parts of his body.

15. Jai Naranyan Soni (PW-4) deposed that he heard hue and cry of his son Sonu at a distance of 10 ft. The appellants ran away from the spot then, he reached the spot and saw the injuries of the deceased. His daughter Sita (PW-5) also saw the scene of occurrence. Jai Narayan Soni (PW-4) and Seeta (PW-5) also established the presence of Bhagirath (PW-

8) nearby the spot and stated that Bhagirath came on the spot. Under 7 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008 Section 134 of the Indian Evidence Act, no number of witness has been prescribed to prove any fact. This provision is based on the principle the quality of evidence and be considered not quantity. In case of Prithipal Singh Vs. State of Punjab, (2012) 1 SCC 10 it was held as under:-

"49. This Court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The timehonoured principle is that evidence has to be weighed and not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on quantity, multiplicity or plurality of witnesses. It is, therefore, open to a competent court to fully and completely rely on a solitary witness and record conviction. Conversely, it may acquit the accused in spite of testimony of several witnesses if it is not satisfied about the quality of evidence. (See Vadivelu Thevar Vs. State of Madras, AIR 1957 SC 614, Sunil Kumar Vs. State (Govt. of NCT of Delhi), (2003) 11 SCC 367, Namdeo Vs. State of Maharashtra, (2007) 14 SCC 150 and Bipin Kumar Mondal Vs. State of W.B, (2010) 12 SCC

91.

16. In view of the evidence on record, the prosecution would not be required to establish that, one particular accused is responsible for causing the fatal injuries in as much as the ingredients of Section 34 of the IPC would be squarely attracted in the present case, as the principles laid down by the Apex Court in case of Kara Bhai Vs. State of Gujrat, AIR 2017 SC 5413.

17. The testimony of Sonu (PW-3) and Bhagirath (PW-8) is 8 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008 sufficient to prove that with in furtherance of common intention of the appellants, the appellant Kishore inflicted blows of knife to Sunil. Sunil sustained fatal injuries on his chest and abdomen and he died just after the incident.

18. Learned counsel for the appellants has placed reliance on the cases of Mohan Singh and Anr. Vs. State of Punjab, AIR 1963 SC 174, Vijendra Singh Vs. State of Uttar Pradesh, Mahendra Singh Vs. State of Uttar Pradesh, (2017) 11 SCC 129 and Megha Singh Vs. State of Haryana, (1996) 11 SCC 709 and urged that the acts of appellants Devendra and Ramu are not covered under the purview of crime punishable with the aid of Section 34 of the IPC.

19. In the present case, it was established that the appellants Devendra and Ramu had actively participated in the crime with the main accused Kishore. They surrounded the deceased and caught hold him to restrain the deceased.

20. After meticulously examined the facts and circumstances of the case and testimony of Sonu (PW-3) & Bhagirath (PW-8), we hold that the appellants Devendra and Ramu have similar liability with the aid of Section 34 of the IPC. With regard to some omission and exaggeration in the evidence of aforesaid witnesses as indicated by learned counsel for the appellants, we are of the view that such omission and exaggeration normally occurs in the testimony of reliable witnesses because it cannot be expected from anyone to explain the incident in exact wordings such as a parrot speaking as the Supreme Court has observed in case of State of 9 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008 U.P. Vs. Naresh (2011) 4 SCC 324.

21. Similarly, in case of Sheesh Ram and others vs. State of Rajasthan (2014) 3 SCC 689, the Supreme Court has held that :-

"It is trite that the maxim 'falsus in uno falsus in omnibus' has no application in India. It is merely a rule of caution. It does not have the status of rule of law. In Balaka Singh v. State of Punjab[2], this Court has said that where it is not feasible to separate truth from falsehood, because the grain and the chaff are inextricably mixed up, and in the process of separation, an absolutely new case has to be reconstructed by divorcing essential details presented by the prosecution completely from the context and background against which they are made,"

22. Witnesses tend to exaggerate the prosecution story. If the exaggeration does not change the prosecution story or convert it into altogether new story, allowance can be made for it. If the evidence of witness is to be disbelieved merely because he has made some improvement in his evidence. There would hardly be any witness on whom reliance can be placed by the Court.

23. Learned counsel for the appellants further contended that Sonu (PW-3) is related witness of the deceased. The conviction cannot be based on related eye-witness. Normally, this is a common objection raised by defence side. It is settled law that the evidence of related or interested witnesses is not always suspected. It has to be scrutinized with cautious and can be accepted, if it is found reliable.

24. In case of "Arjun vs. State of C.G. [2017 (2) MPLJ (Cri.) 305]", the Hon'ble Supreme Court has held as under : 10 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008

"Evidence of related witness is of evidentiary value. Court has to scrutinize evidence with care as a rule of prudence and not as a rule of law. Fact of witness being related to victim or deceased does not by itself discredit evidence."

25. In case of "Kartik Malhar Vs. State of Bihar [(1996) 1 SCC 614]" the Hon'ble Supreme Court has held as under :-

"A close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other convicted for some animus or for some other reason."

26. In this case, the testimony of Sonu (PW-3) corroborated by other evidence is found reliable and credible. Inspector G.P. Mishra (PW-10) has established that FIR Ex.P/6 was promptly lodged by Sonu (PW-3). The facts of FIR Ex.P/6 was duly established by direct evidence.

27. Dr. Shailendra Shukla (PW-2) conducted autopsy of the deceased on the date of incident and he found the following injuries:-

                  (i)      A stab wound conical shape on

                  sternum at 6th ribs size of 3 cm. x 1.5 cm. x

                  bone deep,

                  (ii)     A stab wound on right side of back

                  at lumber portion size of 3.5 cm. x 2 cm. x

                  2 cm. x deep,

                  (iii)     A stab wound on right buttock

                  size of 1.5 cm. x 1/2 cm. x muscle deep,

                  (iv)     A stab wound below the injury
                             11                    Cr. A. No.202/2008
                                                  Cr. A. No.452/2008
                                                  Cr. A. No.732/2008




        no.3 at right buttock size of 1 cm. x 1/2

        cm. x muscle deep,

        (v)      A stab wound below the injury

        no.4 at right buttock about 1 cm. x 1/2 cm.

        x muscle deep,

        (vi)     A stab wound on right thigh in

        middle portion at back side size of 2.5 cm.

        x 1 cm. x muscle deep,

        (vii)    A stab wound on right thigh at

        back side about 1.5 cm. x 1 cm. x muscle

        deep,

        (viii)   An incised wound below injury

        no.7 on right thigh size of 1.5 c.m. x 1 cm.

        x muscle deep,

        (ix)     A stab wound on right thigh in

        upper side about 1 c.m. x 1/2 cm. x muscle

        deep,

        (x)      A stab wound on right side of

        scapula about 2.5 cm. x 1.5 cm. x muscle

        deep,

        (xi)     A   stab    wound   transverse    on

        abdomen above navel about 3 c.m. x 2

        c.m.

Due to above injuries, upper side of peritoneum and abdomen 12 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008 were in cut condition. These wounds reached upto right lob and posterior and interior side of right lob of liver. There was torn about 2 cm. x 1.5 cm. x 1.5. cm. entire thoracic and abdominal cavity were full of blood.

Dr. Shukla opined that the deceased died due to above injuries on liver and due to shock within 24 hours from postmortem. All the injuries were caused by hard, sharp and pointed weapon and ante mortem in nature. In our opinion, all the above injuries were sufficient to cause death of the deceased in ordinary course of nature.

28. We do not find any reason to disbelieve the findings of Dr. Shailendra Shukla (PW-2). The ocular version of prosecution case is duly supported by medical evidence also.

29. Learned counsel for the appellants has submitted that the prosecution has failed to prove the seizure of incriminating weapon from the appellants. With regard to testimony of G.P. Mishra (PW-10), who seized a knife from the possession of appellant Kishore is duly corroborated by Panch-witness Bunty (PW-6). He established that in his presence, police seized a knife as per memorandum of appellant Kishore. The knife was sent to the FSL for examination. As per FSL report (Ex.P/18), blood was found on the knife seized from the possession of appellant Kishore. Hence, it cannot be a reason to discard or brush aside the whole prosecution case, which was otherwise duly established by medical and direct evidence on record.

30. The appellants examined B.K. Mishra (DW-1) as defence witness, who was Civil Surgeon of District Hospital, Sagar. He deposed that 13 Cr. A. No.202/2008 Cr. A. No.452/2008 Cr. A. No.732/2008 in pre MLC register for the period of 21.9.2006 to 25.9.2007, no pre MLC report has been mentioned for the injuries of the deceased. But in his cross-examination, he has admitted that in police information register, there was an entry for Sunil that after he was brought to the hospital, Sunil died. Therefore, it is established that an information was sent to the police station. The testimony of defence witness is not sufficient to disprove the prosecution story.

31. On the basis of aforesaid discussion and taking of over all view of the matter, which are examined by us in the light of principles laid down by the Supreme Court, we are of the opinion that no interference is warranted in the impugned judgment and sentence. Hence, all the appeals filed by the appellants Kishore, Devendra Dubey and Ramu @ Hansraj Namdeo are hereby dismissed.

32. If the appellants are on bail, it is directed that their bail bonds stands cancelled. They are directed to surrender before the trial Court to undergo the remaining part of jail sentence awarded by the trial Court, failing which the trial Court shall take appropriate action under intimation to the Registry.

33. Copy of the judgment be sent to the trial Court alongwith the record for information and necessary compliance.

               (S.K. Gangele)                                        (Smt. Anjuli Palo)
                  Judge                                                   Judge
pn

Digitally signed by PANKAJ
NAGLE
Date: 2018.02.28 17:11:36
+05'30'

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