Madhya Pradesh High Court
Mukesh Tiwari vs The State Of Madhya Pradesh on 26 February, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH : JABALPUR
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CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
Criminal Appeal No.344/2004
Rakesh Tiwari and another
-Versus-
State of M.P.
Ms. Rajeshwari Tanwar, amicus curiae for the appellants.
Shri Shivendra Pandey, Govt. Advocate for the State.
Criminal Appeal No.1482/2007
Sanju alias Sanjay
-Versus-
State of M.P.
Shri Manish Tiwari, Advocate for the appellant.
Shri Shivendra Pandey, Govt. Advocate for the State.
Criminal Appeal No.2049/2009
Mukesh Tiwari
-Versus-
State of M.P.
Ms. Rajeshwari Tanwar, amicus curiae for the appellant.
Shri Shivendra Pandey, Govt. Advocate for the State.
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Whether approved for
reporting ?
Law laid down
Significant paragraph Nos.
2
JUDGMENT
( Jabalpur, dtd.26.02.2018) Per : Vijay Kumar Shukla, J.-
All the instant appeals are arising out of same incident, they were heard analogously and are being disposed of by this common judgment.
2. The the appeal filed by the accused - Rakesh and Suresh is directed against the order of conviction and sentence dated 5-02- 2004 passed by the learned IV Additional Sessions Judge, Katni (Fast Track Court), District Katni in S.T. No.101/2003 whereby the accused- appellants have been convicted and sentenced as under:
Conviction Sentence Under Section 149/302 of Imprisonment for life to the IPC. each.
Under Section 149/460 of R.I. for 5 years to the IPC. each. Under Section 147 of the R.I. for 1 year to IPC. each. Under Section 148 of the R.I. for 1 year to IPC. each. Under Section 3 of the R.I. for 5 years to Explosive Substances Act. each.
(substantive sentence to run concurrently) 3
3. The appeal filed by the accused - Sanju alias Sanjay Mehtar is directed against the order of conviction and sentence dated 10-7-2007 passed by the learned IV Additional Sessions Judge (Fast Track Court), Katni in S.T. No.63/2006 whereby the accused-appellant has been convicted and sentenced as under:
Conviction Sentence
Under Section 147 of the R.I. for one year.
IPC.
Under Section 148 of the R.I. for one year.
IPC.
Under Section 460/149 of R.I. for 5 years and
the IPC. fine of Rs.200/-, in
default, to undergo further
R.I. for one month.
Under Section 302/149 of Life imprisonment and
the IPC. fine of Rs.200/-, in
default, to suffer further
R.I. for one month.
Under Section 3 of the R.I. for 5 years and
Explosive Substances Act. fine of Rs.500/-, in default to undergo further R.I. for one month.
(substantive sentence to run concurrently)
4. The appeal filed by the accused - Mukesh Tiwari is directed against the order of conviction and sentence dated 13-10-2009 passed by the learned Additional Judge to the Court of II Additional Sessions Judge, Katni in S.T. No.101/2003 whereby the accused- appellant has been convicted and sentenced as under:
Conviction Sentence 4 Under Section 147 of the R.I. for one year. IPC. Under Section 148 of the R.I. for one year. IPC. Under Section 302/149 of Life imprisonment and the IPC. fine of Rs.500/-, in default, to suffer further R.I. for three months.
(substantive sentence to run concurrently)
5. Admittedly, there were total 5 accused persons, namely, Rakesh, Suresh, Mukesh, Sanju alias Sanjay and Rakku Mehtar son of Chhangu, and as the accused - Rakku was declared abscond, therefore, he could not be tried.
6. The prosecution story, in a nutshell, is that on 16-12-2002 at about 09:00 PM five accused persons namely, Rakesh, Suresh, Mukesh, Sanju alias Sanjay and Rakku Mehtar came to the house of Ittan and asked for him from his daughter-in-law, Sumanbai (since deceased). It is alleged, that suddenly the accused persons attacked on Sumanbai by using explosive substance and country made weapons, as a consequence thereof, she received grievous injuries on her head and died at the spot itself. A report to that effect was lodged by Kaushal Singh (PW-3) and `marg' intimation vide Ex.P/6 was registered. Thereafter, criminal case was set in motion. The Investigating Officer reached at the spot; prepared dead-body panchnama (Ex.P/2) and the same was sent for autopsy which was conducted by Dr. Laxminarayan 5 Khandelwal (PW-6). The investigating officer after registering the case and executing `panchnama' also took sample of blood-stained earth from the spot, seized pellets vide Ex.P/3 and sent the same for chemical examination the to the Forensic Science Laboratory. The FSL report is Ex.P/17.
7. On discovery statement of the accused - Rakesh vide Ex.P/10 a 315 bore `katta' (country made pistol) was seized along with live cartridges. Similarly, on discovery statement of the accused - Suresh vide Ex.P/12 five country-made bombs were seized from him. After completing the investigation, charge-sheet was filed before the competent court of jurisdiction which, in turn, committed the matter to the Court of Sessions for trial. Since some of the the accused persons were arrested later, they were tried separately. However, since the matter pertains to same incident, therefore, all the appeals were heard together and taken-up simultaneously.
8. The prosecution has examined 5 eye witnesses - Ittan Singh (PW-1); Seema (PW-2); Kaushal Singh (PW-3); Phool Singh Patel (PW-4); and Mannu alias Manoj (PW-7).
9. Counsel for the appellants submitted they have been falsely implicated in the present case, as there are contradictions, 6 omission and improvement in the statements of the eye witnesses and the same are not creditworthy.
10. Counsel for the State, per contra, assiduously urged that the plea of contradictions and omissions advanced on behalf of the accused-appellants is immaterial, inasmuch as the evidence of the prosecution witnesses are consistent and coherent. All the accused persons assaulted on the deceased armed with lethal weapons and dangerous explosive substances, as a result of which, she received fire injuries on her vital part of the head and succumbed to the injuries at the spot itself. Besides, the deceased was carrying 7-8 months pregnancy.
11. Since the prosecution case is embedded on direct evidence, it is apt to scan the testimonies of eye witnesses. Ittan Singh (PW-1) in para 1 of his deposition has stated that he was in the house and the accused - Rakesh, Suresh, Rajju, Mukesh and Sanjay Mehtar came from outside and forcibly entered into the courtyard of the house. Though, he was in the other room of the house, but he could see from the top that the accused- Rakesh was armed with a `katta' in one one hand and carrying bomb in the other hand. The accused - Suresh was also having country bombs in a bag and had also taken bombs in the other hand. Other accused persons - Rakku and Mukesh were also having bombs in their hands. The deceased strived to run away from 7 the spot, seeing the accused persons throwing bombs, but as she was carrying on pregnancy of 7-8 months she could not succeed. He has further stated that when there was blasting caused by explosives, he along with his brother - Kaushal had fled away from the spot. It is further deposed by him that the accused persons had chased them and threw 4-5 country made bombs towards them, anyhow they could manage to escape. It is stated by him that he had taken the deceased in a jeep; went to the Police Station and lodged a report.
12. Seema (PW-2) also deposed that she was at the upper portion in the house and at that time the accused persons - Rakesh, Mukesh, Suresh, Sanjay and Rakku came in the house and started abusing. She had seem them blasting with bombs in the courtyard of the house and the deceased had received injuries because of explosion caused by the accused persons on her head. Thereafter, the accused persons had fled away.
13. Kaushal Singh (PW-3) is the witness who had lodged the FIR. He has stated in his deposition that when he was in the house, the accused - Rakesh, Suresh, Mukesh, Rakku and Sanjay Mehtar came to the house and according him, the deceased had asked them to go out, then the accused Rakeshn, had blasted the bombs. He has also stated that the accused - Sanjay had also exploded bombs and the accused persons, namely, Suresh, Mukesh and Rakku were carrying bombs in a 8 bag. They had entered into the house and started throwing bombs in the courtyard of the house. He further stated that they all had run away from the house.
14. Phool Singh (PW-4) is a tenant in the house. He also stated that when he heard abuses, he saw the accused persons - Rakesh, Suresh, Mukesjh were hurling abuses on the deceased and she was opposing them. He deposed that Ittan (PW-1) tried to run away from the spot. He had seen the accused - Rakesh throwing bomb. Thereafter the accused - Sanjay had also thrown one bomb. The accused - Rakesh and other co-accused persons were also having bombs. After the bomb explosion, the deceased had received grievous injuries.
15. Autopsy was conducted by Dr. Laxminarayan Khandelwal (PW-6), who has found head injury on the back side and a wound of the size : 5 x 4.5 x 4 cm and from the wound bone was visible. He has also found pieces of pellets and stones in the adhered in the head. Wound was also found on the right side of jaws of the size : 1.5 x 1 cm. There was a cut injury near the right eye having the size : 2.5 x 1 x 0.3 cm. He had removed the pieces of the pellets and stones from the wounds and according to him the cause of death was due to shock on account of excessive bleeding from the head. Seizure of `katta' from Suresh and other seizures have also been proved by this independent 9 witness. These seizure memos have been further proved by PW-8. The seized articles were sent to FSL and the chemical expert has opined that the same were hand bombs which were sufficient to cause death in the ordinary course of nature. The chemical expert has has observed presence of chemicals which conforms explosive material. In the FSL report, blood was also found in the earth seized from the spot as well as in the garments worn by the deceased.
16. In order to substantiate their arguments regarding contradiction in the statements of witnesses, counsel appearing for the appellants have relied on the judgement passed by the Apex Court in Krishnegowda & ors. State of Karnataka by Arkalgud Police (Cr.A. No.635/2006, dated 28-3-2017). That was a case where the Court has found that there was a clear contradiction between the ocular and medical evidence, therefore, benefit of doubt was conferred to the accused persons. Further reliance was placed on the Apex Court judgment rendered in Sahadevan and another vs. State of Tamil Nadu (Cr.A. No.1405/2008, dated 8-5-2012). That was a case of extrajudicial confession, there was no eye witness account, therefore, it was held that the prosecution could not prove its case beyond any doubt.
17. A reference was also made by the counsel for the appellants to the Division Bench decision of this Court passed in 10 Umesh Saket vs. State of M.P. (Cr.A. N0.419/2005, dated 21-8- 2017). Facts of the said case were different. There was sole eye witness and his testimony was not found to be creditworthy, as there was no corroboration to her statement by other prosecution witnesses, who had reached at the spot. The statement was also not corroborated with the medical and FSL report. In the facts of that case, benefit of doubt was extended.
18. We have bestowed our anxious consideration on the materials brought on record and the argument advanced on behalf of the accused-appellants that there are contradictions, omission and improvement. On a careful scanning of the testimonies of the eye witnesses, we find the same to be consistent and coherent as regards complicity of the accused persons for causing death of the deceased by using explosive substances. Their statements are further corroborated with the chemical expert report.
19. In the present case FIR was lodged in quite promptitude, individually naming the accused-appellants, therefore, the contention that the appellants have been falsely implicated cannot be accepted. The accused-appellants were named by these witnesses in their court statements also. Some contradictions or omission, in our opinion, are not sufficient to discard the testimonies of eye witnesses, which are 11 well corroborated with medical and scientific report in the present case.
20. In the other appeal which was tried separately, the prosecution witnesses, namely, Kaushal Singh, Seema and others have supported the prosecution case. Thus, on evaluation of entire facts, circumstances and material evidence, we find that the testimonies of the eye-witnesses are trustworthy and inspire confidence of this Court, and by no stretch of imagination, the same cannot be disbelieved.
21. Consequently, the appeals fail and the same are are dismissed.
22. Before parting with the case, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High Court Legal Services Committee shall remit fees of Rs.4000/- (Rs. four thousand only) to the learned counsel who has assisted this Court.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
ac.
Digitally signed by AJAY KUMAR CHATURVEDI
Date: 2018.02.28 15:15:03 +05'30'