Madhya Pradesh High Court
Veeru @ Virendra vs The State Of Madhya Pradesh on 25 October, 2024
Author: Vishal Mishra
Bench: G.S. Ahluwalia, Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:53623
1 Criminal Appeal No.208 of 2009
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
CRIMINAL APPEAL No. 208 of 2009
VEERU @ VIRENDRA AND ANOTHER
Versus
THE STATE OF MADHYA PRADESH
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Appearance :
Shri Yogesh Kumar Gupta - Advocate for the appellants.
Shri A.S. Baghel - Government Advocate for the respondent/State.
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Reserved on : 05.09.2024
Pronounced on : 25.10.2024
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JUDGMENT
Per Vishal Mishra, J.
This appeal has been filed against the judgment of conviction and order of sentence dated 15.01.2009 passed by the Second Additional Sessions Judge, Damoh in Sessions Trial No.93 of 2003 whereby the appellants stood convicted as under :-
Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48NEUTRAL CITATION NO. 2024:MPHC-JBP:53623
2 Criminal Appeal No.208 of 2009 Name Conviction Sentence Section Act Imprisonment Fine if Imprisonment deposited in lieu of fine Details Virendra 302 Indian Life Rs.500/- 6 months R.I. Penal Code Imprisonment not deposited Komal 302/34 Indian Life Rs.500/- 6 months R.I. Penal Code Imprisonment not deposited
2. In the present case, two trials were commenced on account of the fact that the accused Komal and Parvati were absconding and the charge sheet was filed against accused Virendra and Suman at Crime No.113/2002 before the First Additional Sessions Judge on earlier occasion and the trial was commenced. Thereafter, accused - Komal and Parvati were arrested and the charge sheet was filed against them and another trial was commenced. However, both the trials were taken up simultaneously and final hearing of the matter was done jointly and has been decided by this aforesaid common judgment.
3. The accused - Suman has been acquitted of the charges under Sections 341 and 302/34 of the Indian Penal Code and Section 25(1) (Ka) and 27 of the Arms Act and accused - Parvati has been acquitted of the charges under Section 302/34 of the Indian Penal Code and Section 25(1)(Ka) and 27 of the Arms Act. The Trial Court has considered the fact that from accused - Komal no weapon has been Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 3 Criminal Appeal No.208 of 2009 recovered and from accused - Virendra one knife has been recovered. The Trial Court has considered the recovery and has observed that the weapon is not of prohibitory nature, therefore, in terms of Section 27 of the Arms Act, there is no violation of Section 5 of the Arms Act. No fire arm or explosive has been used, therefore, the offence under Section 27 of the Arms Act is not made out. They have been acquitted from the aforesaid charges. They have further been acquitted from the charge under Section 341 of Indian Penal Code. The accused - Veeru @ Virendra has been acquitted from the charge under Section 341 of Indian Penal Code, Section 25 (1)(ka) and Section 27 of the Arms Act. They have been acquitted from the aforesaid charges, however, no appeal has been filed by the State Government against the aforesaid acquittal. The accused -Virendra has been convicted for the offence punishable under Section 302 of Indian Penal Code and Komal has been convicted for the offence punishable under Section 302/34 of Indian Penal Code.
4. It is pointed out that the accused - Komal Patwa has expired during the pendency of appeal and, therefore, the appeal against Komal Patwa stood abated on 05.09.2024. Hence, this appeal is only with reference to accused/appellant No.1 - Veeru @ Virendra.
5. As per the prosecution story, a report has been lodged by one Dilli Vishwakarma complainant in the matter with respect to the incident said to have taken place on 14.08.2008 at about 4.00 PM when he along with his son Rahu was sitting at Bus stand Hinoti at that time Komal Patwa, Veeru Patwa armed with knife along with Suman and her Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 4 Criminal Appeal No.208 of 2009 daughter Parvati came there and owing to the previous enmity has started inflicting injuries to Raju. Accused - Parvati and Suman caught hold of hands of Raju. Accused - Komal inflicted injuries by means of knife to Raju on a stomach. Accused - Veeru @ Virendra inflicted knife injuries to Raju on his stomach. Komal again inflicted knife injury on the left hand of Raju. Veeru inflicted injury on the right hand. Komal inflicted knife injury to Raju on his chest. He shouted and at that time Mahendra Vishwakarma and Lallu Athiya along with his wife and other villages came there and intervened in the matter and tried to stop the fight. Owing the injuries Raju become unconscious. On the basis of the aforesaid report, FIR was got registered initially for offence under Section 341, 307, 324 of Indian Penal Code. The injured Raju was sent for medical examination. After granting primary treatment to the deceased Raju, he was referred to the Medical College, Jabalpur but while he was taken to Medical College on the way he expired. The Marg report of the same was given by Mahendra Vishwakarma, therefore, offence under Section 302 of Indian Penal Code was enhanced. The matter was taken up into investigation by the police authorities. During the course of investigation, the police authorities have prepared several documents that is statements of witnesses were recorded, spot map was prepared, seizure memo, crime details, postmortem report, dying declaration, Marg intimation and FSL report was prepared and the accused-appellants were apprehended. After completion of the investigation, the charge sheet has been filed in the Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 5 Criminal Appeal No.208 of 2009 Court of Judicial Magistrate First Class, Damoh who committed the case to the Sessions Court for Trial.
6. The accused/appellants abjured their guilt and pleaded false implication and, therefore, they were put to trial.
7. To bring home the charge, the prosecution examined as many as 13 witnesses including complainant Dilli Vishwakarma (PW/1), Dr. S.N.Gupta (PW/2), Heeralal (PW/3), Shambhu Ram (PW/4), Mubarik Shah (PW/5), Constable Gulab Singh (PW/6), Rishabh Kumar (PW/7), Baliram Sen (PW/8), Shivrani (PW/9), Balmukund (PW/10), Dr. A.K.Tiwari (PW/11), Dr. Y.P.Patel (PW/12) and Sub Inspector K.S.Dande (PW/13) and exhibited number of documents. The statement of the accused was recorded under Section 313 of Cr.P.C. After conclusion of the trial and on consideration of the entire evidence on record, the learned Trial Court, for the reasons recorded in the impugned judgment, arrived at a conclusion that the prosecution has failed to establish charges under Section 341 of Indian Penal Code, Section 25 (1)(ka) and Section 27 of the Arms Act against the accused/appellants but has found the accused - Veeru @ Virendra guilty for committing offence under Section 302 of Indian Penal Code and accused - Komal under Section 302/34 of Indian Penal Code and accordingly, convicted and sentenced them in the manner as indicated hereinabove. Being aggrieved, the appellant has preferred this appeal.
8. This appeal has been filed on the ground that the main injury as per the prosecution story is inflicted on the chest by means of knife by the accused - Komal. The accused - Komal has already expired during Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 6 Criminal Appeal No.208 of 2009 the pendency of this appeal and the instant appeal against him stood abated accordingly. The allegation against the accused - Veeru is for inflicting injuries on the other parts of the body. There is no intention or motive to cause injury to the deceased. On the same set of evidence, other accused have been enlarged on bail, therefore, the benefit should have been granted to the present appellant also. The prosecution has not examined Mahendra Vishwarkama and Lallu Athiya who were the eye- witness of the incident. Their non- examination creates a serious doubt over the prosecution story. There are material contradictions and omissions in the statement of witnesses. The key witnesses i.e. (PW-1) Dilli Vishwakarma and (PW-9) Shivrani who claim themselves to be eye witnesses are closed relatives of the deceased i.e. the father and mother; and no other independent eye witnesses are supporting the case of the prosecution. They fall under the category of interested witnesses, therefore, their statements should not be relied upon. The learned Trial Court has observed that the knife by which the injuries are caused does not fall under the category of prohibited weapons, therefore, the charges framed under Section 27 of the Arms Act were not found proved by the learned Trial Court. If the initial treatment was properly given to the injured, then there was every possibility that the deceased would have survived. He was referred to the medical college for further treatment which goes to show that complete primary treatment was not given to him. There is nothing on record to show that there was a previous enmity between the parties, therefore, the motive to cause injuries is not found proved. There are no blood stains found in the Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 7 Criminal Appeal No.208 of 2009 knife, therefore, the entire prosecution story appears to be doubtful. The benefit should have been extended to the accused/appellant. On these grounds, he has prayed for setting aside the impugned judgment of conviction of sentence passed by the learned Trial Court and allowing the appeal.
9. Counsel appearing for the State has vehemently opposed the contentions pointing out the fact that there are specific allegations against the accused/appellant of inflicting injury by means of knife. The weapon knife has been recovered from his possession which is proved by the prosecution. The statements of Doctors have been recorded and they have fully supported the medical opinion as well as the postmortem report given by them. The injuries found on the body of the deceased are all stab wounds which are caused by the weapon which has been seized from the possession of the present appellant. Merely the fact that (PW-) Dilli Vishwakarma and (PW-9) Shivrani are the parents of the deceased does not mean that their statement is totally unreliable. Their statements are corroborated with the medical evidence. There is prompt FIR in the matter. Under these circumstances, the learned Trial Court has rightly arrived at a conclusion and held the accused guilty of offence under Section 302 of Indian Penal Code. He prays for dismissal of the appeal.
10. Heard the learned counsel for the parties and perused the record.
11. The matter is considered by analysing the material evidence on the following points :
Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 8 Criminal Appeal No.208 of 2009 Genesis of the incident
12. The prosecution story is that a report has been lodged by one Dilli Vishwakarma complainant in the matter with respect to the incident said to have taken place on 14.08.2008 at about 4.00 PM when he along with his son Rahu was sitting at Bus stand Hinoti at that time Komal Patwa, Veeru Patwa armed with knife along with Suman and her daughter Parvati came there and owing to the previous enmity has started inflicting injuries to Raju. Accused - Parvati and Suman caught hold of hands of Raju. Accused - Komal inflicted injuries by means of knife to Raju on a stomach. Accused - Veeru @ Virendra inflicted knife injuries to Raju on his stomach. Komal again inflicted knife injury on the left hand of Raju. Veeru inflicted injury on the right hand. Komal inflicted knife injury to Raju on his chest. He shouted and at that time Mahendra Vishwakarma and Lallu Athiya along with his wife and other villages came there and intervened in the matter and tried to stop the fight. Owing the injuries Raju become unconscious. Immediately thereafter, the FIR has been registered. The incident has taken place at 4.00 PM. and the FIR was got registered at 5.00 PM. Thus, there is no delay in lodging the FIR. The factum of previous enmity is also pointed out which is not disputed. However, the previous enmity has taken place around six months back but the fact remains that there was an element of previous enmity between them.
Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 9 Criminal Appeal No.208 of 2009 Whether the death is homicidal in nature
13. The statement of witnesses PW-1 and PW-9 are important. PW-1 Dilli Vishwakarma being the father of the deceased Raju has categorically stated in his statement that at 4.00 PM when his son was at Hinoti motor stand, one boy Rubi came there running. He told him that by one knife and scissor Virendra, Suman, Parvati and Komal have inflicted injuries to his son. Thereafter, he reached the motor stand and found that Komal armed with scissors, Virendra armed with knife were inflicting injuries to his son Raju. Suman and Parvati were holding the hands of Raju. There were injuries on right and left hand. Two three wounds on the chest and wounds on the stomach, out of which intestines came out. On seeing Dilli Vishwakarma (PW-1), they ran away. (PW-1) further stated that he has tied the stomach of his son Raju and took him to police station. His wife also accompanied him. At the place of incident, Mahendra Vishwakarma, Lallu Athiya and Mubarik Shah were also present. Thereafter, he has lodged the FIR which was marked as Ex.P/1. Initially he was examined by Dr. Y.P. Patel (PW-12) at about 7.20 PM. He has pointed out that Raju was unconscious. His Pulse and Blood Pressure could not be recorded. He has found following injuries on his body vide Ex.P/15 :-
"(i) Vertical incised wound on the abdomen between peristomium and umblicus about 2 cm left side size 5 cm x 2 cm, omentum come out from his wound, bleeding present.
(ii) Oblique incised wound over abdomen, right nipple size 5 cm x .5 cm x deep.Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48
NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 10 Criminal Appeal No.208 of 2009
(iii) Transverse incised wound on mid lower part of later surface of left arm size 8 cm x 2 cm."
He has referred the case to the Surgical Expert. He was again examined by Dr. S.K.Tiwari, Surgical Expert (PW-11) who has referred him to Medical College, Jabalpur. The discharge ticket Ex.P/14 was prepared wherein he has opined that there are other injuries and the injuries are greivous in nature. While he was taken to Medical College, Jabalpur on the way he expired. The postmortem was conducted by Dr. S.N.Gupta (PW-2) who has found following external injuries on the body vide Ex.P/4 :-
"(i) Stab wound ellictiple in shape 1½'' x ½" x 1" found 2"
above right nipple obliquely placed directed inward.
(ii) Stab wound size 2" x ¾" x deep peircing abdominal cavity found, left lateral to midline of the body 2½" above umblicus vertically, internal material peeping out through wound. Wound was directed inward down laterally, tearing peritoremium, menstry and spleen. Peritonial cavity full of blood present.
(iii) Incised wound size 3" x 1" x bone deep at middle and outer surface of left arm."
All the above wounds except three above are caused by sharp and penetrating object. Injury No.(iii) are caused by sharp and cutting object. The postmortem was conducted on 15.08.2002 and it was opined that the death is due to shock as a result of injury on the vital organ of the body. Duration of death was shown to be 6 to 12 Hrs. Thus, from the aforesaid it is apparently clear that the death has taken place due to injuries which has been caused by the accused persons Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 11 Criminal Appeal No.208 of 2009 involved in the incident and the weapon which they were carrying, therefore, the death is homicidal in nature.
Appreciation of evidence
14. The prosecution has examined (PW-1) Dilli Vishwakarma who happens to be the father and the eye-witness of the incident. (PW-9) Shivrani is also the eye-witness of the incident. The statement given by PW-1 has remained consistent throughout. The injuries which were stated to be caused by the weapons which were carried out by the accused/appellants are medically corroborated. PW-9 has also given the similar statement. She happens to be the mother of the deceased. She has clearly stated that she saw that Parvati and Suman were holding the hands of Raju. Accused - Komal has kept his leg on the chest of the deceased. He was carrying a scissor by which he has inflicted injury to Raju. Veeru was carrying a knife. He has inflicted injury by means of knife to Raju. Both of them have inflicted injuries on the chest, stomach and both the hands of Raju. By the injury inflicted on stomach, the intestines came out. She has stated that she has called her husband through one Rubi. She has further stated in para 6 that her son was unconscious and intestines were out of the stomach. He was not speaking. Thus, her statement has remained consistent throughout. Thus, from the statements of aforesaid witnesses, it is apparently clear that they have narrated the incident exactly in the manner in which the incident happened. There is recovery of weapon knife from the possession of the present appellant. The other witness (PW-3) Heeralal Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 12 Criminal Appeal No.208 of 2009 had not supported the prosecution story and was declared hostile. (PW-4) Shambhu Ram has stated that he subsequently came to know that somebody has killed Raju. He has admitted the fact that police have made spot map in his presence but no recovery was made in his presence. (PW-5) Mubarik Shah has stated that he has heard that somebody has killed Raju Vishwakarma. He has not seen anybody inflicting injuries to Raju. In his presence spot map Ex.P/2 was prepared. Thus, attempt made by the prosecution to show that these witnesses are eye-witnesses was not found proved. Even from their statements, it is clear that they were not the eye witness of the incident but the witnesses have admitted their signatures on the seizure memo. (PW-4) Shambhu Ram and (PW-5) Mubarik Shah have admitted the fact that the spot map was prepared in their presence. (PW-6) Gulab Singh, Constable has got conducted the postmortem. (PW-7) Rishab Kumar and (PW-8) Baliram Sen had denied that the weapon was recovered in their presence but they admit their signatures on the seizure memo Ex.P/12. Therefore, it is clear that these witnesses are not making the correct statement.
15. That, the argument advance by the learned counsel for the appellant that there are material contradictions and omissions in the statement of witnesses is of no help to the appellant for the reason that minor contradictions and omissions are found to be happen when the statements are recorded at a later stage. However, the fact remains that the statements are to be minutely scrutinized and on scrutinizing the statements, it is found that the statements are consistent throughout as Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 13 Criminal Appeal No.208 of 2009 far as inflicting of injury by the present appellant by means of a knife is concerned.
16. The law with respect to minor contradictions and omissions are settled by the Hon'ble Supreme Court in Mritunjoy Biswas vs Pranab reported in (2013) 12 SCC 796 wherein it is held as under :-
"28. ... It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission (See Leela Ram v. State of Haryana [(1999) 9 SCC 525], Rammi v. State of M.P. [(1999) 8 SCC 649] and Shyamal Ghosh v. State of W.B. [(2012) 7 SCC 646)."
17. In the case of State of U.P. vs. Naresh reported in (2011) 4 SCC 324, the Hon'ble Supreme Court has held as under :
"27. The evidence of an injured witness must be given due weightage being a stamped witness, thus, his presence cannot be doubted. His statement is generally considered to be very reliable and it is unlikely that he has spared the actual assailant in order to Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 14 Criminal Appeal No.208 of 2009 falsely implicate someone else. The testimony of an injured witness has its own relevancy and efficacy as he has sustained injuries at the time and place of occurrence and this lends support to his testimony that he was present during the occurrence. Thus, the testimony of an injured witness is accorded a special status in law. The witness would not like or want to let his actual assailant go unpunished merely to implicate a third person falsely for the commission of the offence. Thus, the evidence of the injured witness should be relied upon unless there are grounds for the rejection of his evidence on the basis of major contradictions and discrepancies therein. (Vide Jarnail Singh v. State of Punjab [(2009) 9 SCC 719], Balraje v. State of Maharashtra [(2010) 6 SCC 673] and Abdul Sayeed v. State of M.P. [(2010) 10 SCC
259).
...
29. A mere relationship cannot be a factor to affect credibility of a witness. The evidence of a witness cannot be discarded solely on the ground of his relationship with the victim of the offence. The plea relating to relatives' evidence remains without any substance in case the evidence has credence and it can be relied upon. In such a case the defence has to lay foundation if plea of false implication is made and the court has to analyse the evidence of related witnesses carefully to find out whether it is cogent and credible. (Vide Jarnail Singh [(2009) 9 SCC 719], Vishnu v. State of Rajasthan [(2009) 10 SCC 477] and Balraje [(2010) 6 SCC
673).
30. In all criminal cases, normal discrepancies are bound to occur in the depositions of witnesses due to normal errors of observation, namely, errors of memory due to lapse of time or due to mental disposition such as shock and horror at the time of occurrence. Where the omissions amount to a contradiction, creating a serious doubt about the truthfulness of the witness and other witnesses also make material improvement while deposing in the court, such evidence cannot be safe to rely upon. However, minor contradictions, inconsistencies, embellishments or Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 15 Criminal Appeal No.208 of 2009 improvements on trivial matters which do not affect the core of the prosecution case, should not be made a ground on which the evidence can be rejected in its entirety. The court has to form its opinion about the credibility of the witness and record a finding as to whether his deposition inspires confidence.
"9. Exaggerations per se do not render the evidence brittle. But it can be one of the factors to test credibility of the prosecution version, when the entire evidence is put in a crucible for being tested on the touchstone of credibility." [Ed. : As observed in Bihari Nath Goswami v. Shiv Kumar Singh, (2004) 9 SCC 186, para 9.] Therefore, mere marginal variations in the statements of a witness cannot be dubbed as improvements as the same may be elaborations of the statement made by the witness earlier. The omissions which amount to contradictions in material particulars i.e. go to the root of the case/materially affect the trial or core of the prosecution's case, render the testimony of the witness liable to be discredited. [Vide State v. Saravanan [(2008) 17 SCC 587], Arumugam v. State [(2008) 15 SCC 590], Mahendra Pratap Singh v. State of U.P. [(2009) 11 SCC 334] and Sunil Kumar Sambhudayal Gupta (Dr.) v. State of Maharashtra [(2010) 13 SCC 657]."
18. Sub Inspector K.S.Dande (PW13) who was the Investigating Officer in the matter, has clearly stated that on 14.08.2002, Dilli Vishwakarma (PW-1) brought his injured son to the police station and on the basis of the complaint made by Dilli Vishwakarma, the FIR Ex.P/1 was got recorded. The injured was sent to the District Hospital, Damoh for treatment. An application was forwarded to S.D.M., for getting the dying declaration of Raju recorded but he was in unconscious state, therefore, his dying declaration could not be Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 16 Criminal Appeal No.208 of 2009 recorded. After giving primary treatment to Raju, he was referred to Medical College, Jabalpur and on the way he expired for which Marg intimation was given by Mahendra Vishwakarma Ex.P/18 on the basis of which offence under Section 302 of Indian Penal Code was enhanced. Panchnama after death was prepared vide Ex.P/20. The body was sent for postmortem. He has further pointed out the documents were prepared by him during investigation i.e. Ex.P/7 spot map, Ex.P/5 seizure of blood stained soil etc. Seizure of weapon i.e. knife of Virendra was recovered vide Ex.P/12. He was arrested vide Ex.P/13. He has further clarified in his cross-examination that the name of Mahendra Vishwakarma and Lallu Uthiya were mentioned in the FIR showing themselves to be the eye-witness of the incident but they have not turned up to record their deposition owing to the fact that two accused persons were absconding in the matter, therefore, because of the fear they have not appeared before the Trial Court to record their deposition. He has further pointed out that on 15.08.2002, the statement of Mahendra Vishwakarma was taken on a loose paper and a carbon copy of the same has been produced for witness. However, such document is not a part of the prosecution file or the case diary. Therefore, there is reasonable explanation given by the Investigating Officer that why the statement of other eye witnesses could not be recorded. The argument advanced by the defence that key eye- witnesses have not been examined before the Trial Court will be of no help to the present appellant for the reason that there are interested eye- witnesses who have categorically deposed against him.
Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 17 Criminal Appeal No.208 of 2009
19. The Hon'ble Supreme Court has considered the aspect of interested witnesses and in the case of Salim Sahab Vs. State of M.P. reported in (2007) 1 SCC 699 has held as under :-
"13. We may also observe that the ground that the witness being a close relative and consequently being a partisan witness, should not be relied upon, has no substance. This theory was repelled by this Court as early as in Dalip Singh case [(1953) 2 SCC 36 : AIR 1953 SC 364 : 1953 Cri LJ 1465] in which surprise was expressed over the impression which prevailed in the minds of the members of the Bar that relatives were not independent witnesses. Speaking through Vivian Bose, J. it was observed : (AIR p. 366, para 25) "25. We are unable to agree with the learned Judges of the High Court that the testimony of the two eyewitnesses requires corroboration. If the foundation for such an observation is based on the fact that the witnesses are women and that the fate of seven men hangs on their testimony, we know of no such rule. If it is grounded on the reason that they are closely related to the deceased we are unable to concur. This is a fallacy common to many criminal cases and one which another Bench of this Court endeavoured to dispel in -- 'Rameshwar v. State of Rajasthan' [1951 SCC 1213 : AIR 1952 SC 54 :
1952 Cri LJ 547] , AIR at p. 59. We find, however, that it unfortunately still persists, if not in the judgments of the courts, at any rate in the arguments of counsel."
20. From the aforesaid judgment, it is apparently clear that the statements of the interested witnesses could not be discarded. However, a minute scrutiny is to be done as far as statement of interested witnesses are concerned. In the present case there are two interested witnesses that is the father and mother of the deceased. They had categorically supported the case of the prosecution and depose the Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 18 Criminal Appeal No.208 of 2009 manner in which the incident has taken place. Their statements are duly corroborated with the medical evidence available on record. This Court has already considered the medical evidence and has found that the death is homicidal in nature and caused by a weapon which has been recovered from the possession of the present appellant. Thus, it is clear that the prosecution was successful in establishing the case against the present appellant.
Recovery of weapon & Forensic Examination of weapon
21. The weapon knife has been recovered from the possession of the present appellant which is shown vide Ex.P/12. The said exhibit clearly shows that there is a recovery of an iron knife from the possession of the present appellant. The said weapon was sent for forensic examination vide document Ex.P/21. The report of which has been received and was exhibited as Ex.P/22. From the perusal of Ex.P/22, it is seen that the weapon knife seized from the possession of accused - Virendra was Article 'C' and the report shows that no blood stained were found on the Article 'C' but the same will not be of any benefit to the appellant, in the circumstances, when ocular evidence is available on record with respect to inflicting of injury by means of knife by the present appellant. The recovery of weapon i.e. knife from the possession of the present appellant is proved by the witnesses as they have admitted the signatures on the seizure memo. Therefore, the argument advanced on behalf of the appellant that seizure is not proved is of no help to the appellant.
Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 19 Criminal Appeal No.208 of 2009 Effect of acquittal of the co-accused
22. The learned Trial Court has acquitted the other co-accused Suman and Parvati, as the prosecution has failed to prove the case against them. There is no allegation in any of the statement of the witnesses of inflicting any injury by them to Raju. The only allegation which is reflected is that both of them has caught hold of hands of the deceased Raju but there is no allegation of inflicting injury on any one of them. The injury was inflicted by the present appellants Virendra and Komal (expired). There is no contradictions with respect of inflicting of injuries to the deceased Raju by means of a knife by the present appellant. Therefore, the argument that the benefit of acquittal has been extended to them will be of no help to the present appellant as there is a specific allegation of inflicting injury by means of knife to the deceased which is medically corroborated, he has to satisfy the Court regarding the same but the evidence available on record clearly pointing out the guilt towards the accused - Veeru @ Virendra. Under these circumstances, this argument will be of no help to the appellant.
23. From the analysis of the entire evidence available on record, it is apparently clear that the FIR is prompt in nature which has been lodged by the complainant - Dilli Vishwakarma (PW-1). The other eye- witnesses to the incident are supporting the case of the prosecution. The injuries which have been caused are by sharp cutting weapon i.e. knife which has been recovered from the possession of the present appellant. The injuries are medically corroborated. The seizure of weapon is found proved because seizure witnesses are admitting the signatures on Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 20 Criminal Appeal No.208 of 2009 the seizure memos. The deceased Raju was immediately given medical treatment and was referred to Medical College Hospital, Jabalpur but on the way, he succumbed to the injuries. There is no big time difference to show that he was not given proper medical treatment. The MLC clearly shows that injuries were on the vital part of the body and grievous in nature. The doctors have categorically opined that the injuries are sufficient to cause death. The postmortem clearly reflects that the death is due to shock because of the injuries caused to the deceased. Under these circumstances, there is no doubt that the appellant is the person who caused injuries by means of sharp cutting weapon i.e. knife and has caused death of Raju. Therefore, the learned Trial Court was well justified in holding the appellant guilty for causing murder of Raju. No illegality has been committed by the learned Trial Court in convicting the present appellant for the aforesaid offences. The learned Trial Court has rightly considered all the aspects of the matter and has passed the impugned judgment of conviction which is well merited. Hence, this Court finds no good ground to allow this appeal.
24. Accordingly, the appeal fails and is hereby dismissed.
25. Report submitted by the jail authorities dated 26.08.2024 shows that the appellant was extended the benefit of bail by this Court vide order dated 09.08.2018. His bail bonds are directed to be cancelled. He is directed to surrender forthwith to serve the remaining part of the sentence, failing which the non-bailable warrant shall be issued against him by the concerned Court for his arrest. The report further shows that appellant - Veeru @ Virendra has already undergone custody period of Signature Not Verified Signed by: ANINDYA SUNDAR MUKHOPADHYAY Signing time: 25-10-2024 19:21:48 NEUTRAL CITATION NO. 2024:MPHC-JBP:53623 21 Criminal Appeal No.208 of 2009 15 years 8 months and 13 days as on 26.08.2024. He has to undergo the remaining jail sentence as he has been convicted for life imprisonment. The report is taken on record.
26. A copy of this judgment along with the record of the trial Court be sent to the court concerned for information and necessary compliance. Let a copy of the judgment be also sent to the concerned jail authorities for compliance and necessary action.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
AM.
Signature Not Verified
Signed by: ANINDYA
SUNDAR MUKHOPADHYAY
Signing time: 25-10-2024
19:21:48