Madhya Pradesh High Court
Manohar vs The State Of Madhya Pradesh on 14 June, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
-1-
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 14TH OF JUNE, 2023
CRIMINAL APPEAL No. 749 of 2012
BETWEEN:-
MANOHAR S/O MANGILAL BHIL, AGED ABOUT 25
YEARS, OCCUPATION: LABOUR, R/O DINDAYAL
NAGAR, RATLAM (MADHYA PRADESH)
.....APPELLANT
(SHRI HARISH TRIPATHI, LEARNED COUNSEL FOR THE APPELLANT.)
AND
THE STATE OF MADHYA PRADESH, THROUGH P.S.
MANAK CHOUK, RATLAM (MADHYA PRADESH)
.....RESPONDENTS
(SHRI BHUWAN DESHMUKH, LEARNED GOVERNMENT ADVOCATE FOR
THE RESPONDENT / STATE.)
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Reserved on : 19.04.2023.
Delivered on : 14.06.2023.
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ORDER
The appellant has filed this appeal against the judgment dated 19.05.2012 passed in ST No.1225/2009 by First Additional Sessions Judge Ratlam M.P. whereby he has been convicted under the Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -2- following Sections:
S.No. Section Imprisonment Fine Default
Stipulation
1. 302 of IPC Life 1000/- 2 months
Imprisonment R.I.
2. 307 of IPC Life 1000/- 2 months
Imprisonment R.I.
3. 323 of IPC - 1000/- 2 months
R.I.
4. 506 of IPC 2 years - -
5. 366 of IPC 5 years 1500/- 3 months
R.I.
6. Section 25 (1-b)(b) 2 years 200/- 10 days R.I.
of Arms Act
The facts of the case in short are as under:
1- On 09.05.2009, at about 4:20 AM, information was received
at police station Manak Chowk, Ratlam that behind the G Sector in a slum area a dispute is going on, information was recorded in Daily Diary and Shri G.K. Gehlot ASI was informed about the incident. He reached the place of crime and recorded the Dehati Nalish at 4:35 AM at the instance of complainant Lakshmibai w/o Shantilal. According to the complainant, she along with her husband and daughter Rekha are residing for the last 5 years in Deendayal Nagar. Initially, her daughter Rekha was engaged with Harchand Bhil and lived for 2 years with him as a wife but his behaviour towards Rekha was not good, therefore, they broke her engagement. Thereafter she was engaged with her neighbor Manohar s/o Mangilal (present appellant) and he started living in her house. There was no dispute hence they decided to marry Rekha with Manohar but some days ago Manohar beat Rekha, therefore, they Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -3- decided not to marry Rekha with Manohar, hence he threatened to kill all of them. In the night she was sleeping with Rekha inside the house and Manohar was sleeping outside the house. Manohar woke up and started abusing Shantilal as to why he is not ready for the marriage of Rekha with him. Shantilal declined, and then he took out the sword from the Mata Temple and started assaulting her husband Shantilal who sustained injuries, thereafter he assaulted her on both the hands and chest by means of a sword. Immediately Suraj, Raju, Bheema, Mangilal, Bahadur came there but Manohar ran away along with Rekha. 2- Initially, the offence under Section 307 of IPC was found against this present appellant, hence, Dehati Nalish was recorded by ASI Shri Gehlot as Exhibit P/1. Thereafter the statement of S.N. Trivedi under Section 161 of Cr.P.C. was recorded. The police found appellant/ Shantilal along with Rekha in a tea stall, after seeing the police Rekha came to the police and Shantilal ran away towards the forest area but was arrested by the police. Recover Panchnama of Rekha was prepared as Exhibit P/2 in the presence of Ramesh and Dayaram. Statements of Ramesh, Ashish, Bahadur, Shambhu were recorded as Exhibit P/3 to Exhibit P/6, Naksha Panchnama was prepared as Exhibit P/7 after drawing a Safina form Exhibit P/8. The accused in his memorandum under Section 27 of the Evidence Act got recovered blood stained broken sword vide Exhibit P/10 and P/11, Laxmibai was referred for examination vide Ex.P/12 and Doctor Narendra Sharma (PW-14) examined her and prepared a preliminary medical report Ex.P/15, Mangilal father of the appellant also sustained injury and MLC report was prepared( Ex.P/16).
Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -4-3- The dead body of Shanti lal was sent for autopsy which was conducted by Dr. Nirmal Jain and according to him, Shantilal died due to antemortem injuries and shock. Initially, the FIR was recorded under Section 307 of IPC Exhibit P/18 but after the death of Shantilal charges under Sections 302 and 326 of IPC were also added. Manohar also sustained injuries like abrasion and his MLC report was drawn ( Exb. P/21). During the investigation, the blood-stained soil, broken piece of the sword, bangles, a bunch of hair of women and one lady's wrist watch and blood-stained plain soil were seized vide Ex.P/26, spot map was prepared to vide Exhibit P/30. All seized articles were sent to FSL. 4- After completing the investigation, a charge sheet was filed on 27.06.2009 under Sections 307, 302, 366, 506, 326 and 324 of IPC and Section 25 (1-b)(b) of the Arms Act. The trial was committed to the Sessions Court where the charges under Sections 302, 307, 323, 506 and 366 of IPC and Section 25(1-b)(b) of the Arms Act were framed against this appellant. The appellant denied the charges and pleaded innocent and false implication, hence the prosecution was called upon to prove the charges.
5- In order to prove the charges, the prosecution examined as many as 30 witnesses i.e. PW/1 to PW/30 and exhibited 36 pieces of documentary evidence i.e. Exb.P/1 to P/36. The prosecution also produced articles i.e. photographs of the spot. In defence the appellant examined three witnesses namely Manoj Kumar DW/1, Sohanbai DW/2 and Gautam DW/3 and exhibited six documents as Ex.D/1 to Ex.D/6. 6- After evaluating the evidence that came on record, vide judgment dated 19.05.2012 appellant has been convicted and sentenced Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -5- as stated above hence, this appeal before this Court. The appellant is in jail since the date of arrest i.e. 09.05.2009 and completed an incarnation of 14 years in jail.
7- Learned counsel for the appellant submitted that the appellant is not assailing the findings recorded by the trial Court in respect of the date of the incident, place of incident, medical evidence, autopsy report, cause of death and the relationship between the appellant, deceased, PW/1 and PW/2. It is further submitted by the learned counsel that there except for P.W.-2 and 3 all the independent witnesses have not supported the prosecution story. There was no motive for the appellant to kill the deceased and assault P.W.-3. the deceased has enmity with others in the village hence one of them might have killed him in the night. No blood stains were found on the cloth of the appellant. Hence he has falsely been convicted in this crime which he did not commit. Learned counsel further submitted that even if the findings that the appellant assaulted the deceased as well as the complainant Shantibai by means of a Sword are affirmed but it can safely be held that he had no intention to kill them at the stage of initiation of quarrel . as per P.W.-2 and P.W.-3 the appellant was sleeping in the same house with them a dispute suddenly cropped in the night and he went to the Mata Temple and took out the sword and assaulted both the deceased. It appears that initially there was a scuffle between them as the appellant, his father Mangilal (PW/7) also sustained the injury. The police found broken bangles, a bunch of hair, and wrist watch on the spot. It is established that there was a scuffle and this appellant, father, PW/1, PW/2 and deceased have assaulted each Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -6- other, therefore, there was no intention to kill, hence at the most, he is liable to be convicted under Section 304 part-I of IPC. It is further submitted by the learned counsel that for assaulting and causing injury to Laxmibai the police filed a charge-sheet under Section 326 of IPC but the learned trial Court wrongly framed the charge under Section 307 of IPC and convicted and imprisoned for life. The appellant has undergone more than 13-14 years of jail sentence, he has no criminal past, and he had a kid and wife at the time of the incident, therefore, the sentence of life imprisonment be reduced to the period already undergone by altering the sentence.
8- Learned Government Advocate opposes the aforesaid prayer by submitting that although the appellant did not bring the sword in his hand he first assaulted the deceased Shantilal on various parts of the body who died on the spot thereafter, he assaulted Laxmibai by means of a sword brutally due to which her left hand was amputated. Since the appellant assaulted both of them in a very cruel manner and thereafter forcibly took Rekhabai from the spot hence his intention to kill both of them could be gathered from his above overt act. Rekhabai was recovered and he was arrested therefore, he has rightly been convicted under Sections 302 and 307 of IPC.
Appreciations & Conclusion 9- Since the appellant is not assailing the findings recorded by the trial Court in respect of the date of the incident, place of incident, medical evidence, autopsy report, cause of death and the relationship between the appellant, deceased, PW/1 and PW/2, therefore, there is no need to reappreciate the evidence came on record in this appeal.
Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -7-10- It is correct that except for PW/2 and PW/3 who are the wife and daughter of the deceased, all the witnesses have turned hostile and did not support the prosecution. PW/2 is a complainant as well as an injured witness and PW/3 is a daughter who witnesses the entire incident and was forcefully abducted by the appellant hence it is hard to disbelieve them to discard their testimony. So far as the PW/5 on whose tea stall Rekhabai was recovered by the police is concerned, PW/5 in the Court identified the appellant that he was having tea with PW/3 Rekhabai and the police came on the spot, he has supported the case of the prosecution to that extent which can safely corroborate the testimony of the P.W.-3. The rest of the eyewitnesses did not see the appellant assaulting the deceased but they all saw the deceased lying in the pool of blood and injured P.W.-2 hence their hostility would not fatal to the prosecution case.
11- So far as the place of incident is concerned, P.W.-1 and other witnesses have testified that they saw the deceased Shantilal and injured Shanti Bai in front of their house lying in injured condition. Therefore, the crime was committed in front of the house.
12- So far as the time of the incident is concerned, as per the prosecution story at 03:39 am, this appellant woke up and argued with the deceased and thereafter assaulted. Immediately, the police station received information at 4:20 am and police reached the spot. There is no dispute by the appellant about the time and date of the occurrence of the crime.
Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -8-13- It is also not in dispute that the deceased was residing in the house alongwith his daughter namely P.W.-13/Rekha Bai. The appellant has not come up with any defence that on the date of the incident, he was not in the house. No such plea of alibi has been taken. His father P.W.-7 has also confirmed that he was residing in the house of Laxmi Bai i.e. complainant. Hence the presence of the appellant on the spot is not a matter of controversy. It is correct that except P.W.-2 and P.W.3 who is the closest relative as well as injured witnesses, no other witness has supported the case of the prosecution. There is no inconsistency in the statement of P.W.-2 and P.W.-3 as both have narrated the same story in Dehati Nalishi, F.I.R. and 161 of Cr.P.C. There is a consistency in their statements hence their no reason to doubt their testimony and there is no reason to disbelieve in their statement.
14- The appellant came up with a defence by way of cross- examination that Laxmi Bai was not of good character. She had a dispute with Harchandan D.W.-2 and D.W.-3, therefore, someone else might have assaulted the complainant as well as her husband and the appellant has falsely been implicated. P.W.-2 and P.W.-3 have been cross-examined at length but nothing could be come out to discard their testimony. It cannot be concluded that they have falsely implicated the present appellant because there was no delay in lodging the Dehati nalish as well as F.I.R. As per the prosecution story, the deceased Shantilal died on the spot. The accused fled away with his daughter Rekha Bai so there was no other person in the family with complainant Laxmi Bai to discuss falsely implicating this appellant. There was Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -9- hardly any time for P.W.-2 to think and create a false story to implicate the appellant. Dehati nalish, was recorded within half an hour of the incident the name of the appellant has been disclosed with motive in it. In continuation of the crime, the appellant committed an offence under Section 326 of IPC by taking Rekha Bai with him, who was recovered in the tea stall of P.W.-5 who is supporting the case of the prosecution. He deposed in the Court that the appellant came with a lady and had tea. The police came and took the lady from the tea stall. After declaring hostile, he admitted that Rekha Bai was with the accused on the said date. He has also admitted that he took the accused and Rekha Bai both to the police station, Rekha Bai was recovered at Hotel Dayaram. He has also admitted the signature in Varamdgi and Panchnama. After the arrest at the instance of the appellant, the blood- stained broken sword was recovered and the remaining pieces of the sword were recovered as per F.S.L. Report dated 13.05.2010 (P-36), the broken part, was the part of a sword, therefore, this chain of events establishes that appellant had committed a crime and he has rightly been held guilty.
15- Apart from that the father of the appellant who also sustained injury and was examined by the doctor his MLC is exhibited in the trial. In the chief examination, he did not disclose that he is the father of the appellant and in cross-examination, he disclosed that he is the father of the appellant and he also admitted to the injuries. From the scene of the crime, police found broken bangles, and a bunch of hair recovered which shows that during the commission of the crime scuffle Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -10- also took place between them as the appellant also sustained injuries as well as the father. Hence the presence of P.W.-7 and the appellant at the place of crime is established. Hence the prosecution has proved the case beyond doubt against the appellant.
16- Now, the only issue which requires consideration is whether the appellant is liable to be convicted under Section 302 Part-I and II in place of Section 302 of I.P.C. It is correct that the appellant was residing with the deceased, P.W.-2 and P.W.3 in their house. The dispute suddenly arose in the night as there was no serious enmity between them. There was an engagement between the appellant and P.W.-3 and they were already living as husband and wife but later on the deceased changed his mind and decided not to marry her daughter with the appellant. According to P.W.-2 she and the deceased were threatened by the appellant to marry their daughter with him and for which the deceased and complainant were not ready. Out of anger, he went to the temple and brought the sword and assaulted both of them. There might be no intention before starting the discussion but in the manner of repeated assault in the heat of passion, the deceased and complainant sustained grievous hurt on various parts of the body by means of a sword thereafter the appellant forcefully took their daughter from there. Therefore, the offence will not fall under Exception 4 of Section 302 of IPC because the appellant took an undue advantage and also acted cruelly. Hence he has rightly been convicted under section 302 of I.P.C.
Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -11-17- The appellant assaulted Shanti Bai in both her hands with full- force bones broken up and she suffered the amputation of one hand. Even if, the murder was committed without pre-meditated mind or in a heat of passion and upon a sudden quarrel, he was intending to kill both of them. So far as the assault on Laxmi Bai is concerned, initially, the appellant was charged under Section 326 I.P.C. because of the amputation of one hand but the Sessions Court framed the charge under Section 307, which has not been challenged by the appellant. Since there was the intention to kill both husband and wife, the appellant assaulted Laxmi Bai who came to save the deceased. The appellant assaulted Laxmibai on her head with the sword which is a vital part of the body. The appellant has rightly been convicted under section 307 I.P.C. but sentencing him to undergo life imprisonment is on the higher side which is reduced to 10 years sentence. For other offences, the th conviction and sentence are hereby confirmed.
18- With the aforesaid discussion, the appeal is partly allowed with the following:-
(i) Conviction of the appellant under Sections 302, 307,323, 506 and 366 of IPC and Section 25(1-b)(b) of the Arms Act is hereby confirmed.
(ii) The sentence and fine amount awarded under Sections 302, 307,323, 506 and 366 of IPC and Section 25(1-b)(b) of the Arms Act but the sentence awarded under section 307 of IPC is reduced from life Signature Not Verified Signed by: DIVYANSH SHUKLA Signing time: 14-06-2023 18:26:11 -12- imprisonment to 10 years of jail sentence. All the sentences shall run simultaneously.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Divyansh
Signature Not Verified
Signed by: DIVYANSH
SHUKLA
Signing time: 14-06-2023
18:26:11