Madhya Pradesh High Court
Parvat vs The State Of Madhya Pradesh on 28 October, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Satyendra Kumar Singh
1
Cr.Appeal No.1338 of 2013
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 28th OF OCTOBER, 2022
CRIMINAL APPEAL No. 1338 of 2013
BETWEEN:-
PARVAT S/O HARU BHIL, AGED ABOUT 30 YEARS, OCCUPATION:
1. AGRICULTRIST VILLAGE CHALNI MATA, TEHSIL & P.S.
SARDARPUR (MADHYA PRADESH)
KAILASH S/O HARU BHIL, AGED ABOUT 28 YEARS, OCCUPATION:
2. AGRICULTURIST VILL-CHALNI MATA, TEH & P.S. SARDARPUR,
DISTT-DHAR (MADHYA PRADESH)
.....APPELLANTS
(BY PANKAJ AJMERA, ADVOCATE )
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH P.S.
SARDARPUR, DISTT. DHAR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI A.S. SISODIA, GOVT. ADVOCATE )
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Reserved on : 16.08.2022
Delivered on : 28.10.2022
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This appeal coming on for judgment this day, JUSTICE
SATYENDRA KUMAR SINGH passed the following:
JUDGMENT
Satyendra Kumar Singh, J., The appellant has preferred this appeal under Section 374(2) of 2 Cr.Appeal No.1338 of 2013 the Code of Criminal Procedure, 1973(2 of 1974) [in short Cr.P.C.] against the judgment dated 03.09.2013, passed by the Court of Additional Sessions Judge Sardarpur, Distt. Dhar (M.P.) in S.T. No.159/2012, whereby the appellants have been convicted under Section 449 and 302 of Indian Penal Code, 1860 (in short IPC) and sentenced to undergo R.I. for 10 years with fine of Rs. 2,000/- and in default of payment of fine, additional S.I. for 02 months and Life Imprisonment with fine of Rs.5,000/- and in default of payment of fine, additional S.I. for 03 months each respectively.
2. Prosecution story in brief is that:
(i) On 21.12.2011 at about 20:30 hours, when Complainant- Sunil, who was a minor boy aged about 8 years and was residing with his grand parents in Village- Chalani Mata, was studying in his grandmother's room in the light of diya and his grandfather Maan Singh was sleeping in the adjacent room, he heard screams coming out from his grandfather's room. He went to his grandfather's room and saw the appellants Parvat and Kailash giving axe blows on the head of his grandfather. He ran back and hide himself underneath the cot in his grandmother's room and saw that both the appellants came into the room of his grandmother and appellant Parvat gave axe blows on the head of his grandmother Bhuri Bai, due to which she fell down in front of the door and died, whereafter both the appellants fled away from the spot wielding axes in their hands. Complainant - Sunil then came out from beneath the cot and narrated the entire incident to his Aunt(Badi Ma) Sayri Bai, Uncle(Bade Pita) Kal Singh and Dhanna. Thereafter, he went to the Police Chowki Rajgarha and made complaint to the police, wherein he also stated that about 15 days ago, appellants' father Haaroo 3 Cr.Appeal No.1338 of 2013 was died due to illness and appellants thereafter, use to fight with complainant's grand parents calling his grandmother a 'witch'(dayan) who was responsible for the death of their father and because of the said reason only, they have committed murder of his grandparents.
(ii) On the same day at about 22.30 hours, on the basis of oral complaint made by the complainant Sunil, S.I. O.P Aheer, lodged the FIR (Ex. P-1) against the appellants for the offences punishable u/S 302 r/w 34 of IPC. He also registered the Merg Intimation Report (Ex. P-28) about the death of the deceased persons and had sent both the above reports registered at 'Zero' at Police Chowki Rajgarha to Police Station Sardarpur for registration, on the basis of which in the same intervening night on 22.12.2011 at about 03.45 hours, FIR bearing crime no.
451/2011 (Ex. P-24) and at about 03.55 hours, Merg Intimation Report bearing no.76-77/2011 (Ex. P-29) were registered at P.S. Sardarpur, Distt. Dhar.
(iii) On the same day at about 07.30 hours, S.I. O.P Aheer went to the place of incident, prepared spot map (Ex,P-2), seized plain and blood soaked soil from the places, where dead bodies of the deceased Maan Singh and Bhuri Bai were found as per seizure memos Ex. P-5 and P-6 respectively. He also seized a diya i.e. lamp (Article-A) from deceased Bhuri Bai's room as per seizure memo (Ex. P-3). He called the witnesses issuing safina forms (Ex. P-15 & P-16), prepared Naksha Panchayatnamas (Ex. P-18 & P-17) of the dead bodies of the deceased Maan Singh and Bhuri Bai and vide applications (Ex. P-30 & P-31), sent the dead bodies of both the above deceased persons for post- mortem examination to Community Health Centre, Sardarpur.
(iv) On 22.12.2011 at about 13.30 hours and 14.30 hours, Dr. Nitin 4 Cr.Appeal No.1338 of 2013 Joshi conducted the autopsy of the dead bodies of the deceased Bhuri Bai and Maan Singh. He opined that all the injuries found on the bodies of the deceased persons were anti-mortem and were caused by hard and sharp object, and the cause of death of the deceased Maan Singh was shock and external hemorrhage due to injuries on vital organs within 24 hours from the time of post-mortem examination as per post-mortem examination report (Ex. P-19), and the cause of death of the deceased Bhuri Bai was shock and hemorrhage as a result of brain injury within 24 hours from the time of post-mortem examination as per post-mortem examination report (Ex. P-20). He in his quarry reports (Ex. P-22 & P-
23) has also stated that the above injuries can be caused by the seized weapons 'axes' (Article-B & C).
(v) SHO Aishwarya Shastri arrested the appellants Parvat and Kailash vide arrest memos (Ex. P-7 and P-8). On 25.11.2011, he recorded the disclosure statement ( Ex. P-9) of appellant Parvat and also disclosure statement ( Ex. P-10) of appellant Kailash. On the basis of their aforesaid disclosure statements and on the instance of appellant Parvat Singh, he seized one blood stained axe (Article-C) as per seizure memo (Ex. P-9) and on the instance of appellant Kailash, seized one blood stained axe (Article-B) as per seizure memo (Ex. P-10). On 27.12.2011, he recorded the second disclosure statement (Ex. P-13) of appellant Parvat and on the basis of which on his instance seized one blood stained scarf (Article-D) as per seizure memo (Ex. P-14). Vide letter (Ex. P-25), sent all the seized articles to FSL, Rau Indore for forensic and chemical examination, obtained FSL report (Ex. P-27) and after completion of investigation filed the chargesheet before the Court of J.M.F.C. Sardarpur, who committed the case to the Court of 5 Cr.Appeal No.1338 of 2013 Additional Sessions Judge Sardarpur, Distt. Dhar .
3. Learned Trial Court considering the material prima-facie available on record, framed the charges under Sections 449 and 302, or in the alternative 302 r/w 34 of IPC against the appellants, who abjured their guilt and prayed for trial.
4. Learned Trial Court after appreciating the oral as well as documentary evidence available on record convicted and sentenced the appellants as aforementioned. Being aggrieved with the said judgment of conviction and order of sentence, appellants have preferred this appeal for setting aside the impugned judgment and discharging them from the charges framed against them.
5. Learned counsel for the appellants submits that the learned Trial Court has committed a legal error while appreciating the evidence available on record. Complainant-Sunil is a tutored child witness of hardly 8 years of age, his presence on the spot was very much doubtful as defence witnesses specifically deposed that at the time of incident he was present near the place, where JCB machine was functioning. There are vast contradictions in the evidence of Sunil and other witnesses. Sayri Bai, whom he first narrated the incident has not been examined. The Trial Court has not taken proper precautions in appreciating the evidence of a child witness. It is highly improbable that Sunil could go to police chowki all alone and lodge the report, FIR lodged on his report has not been proved. Prosecution case is based on direct evidence therefore, discussion regarding circumstancial evidence is totally irrelevant. The impugned judgment of conviction and order of sentence convicting the appellants is without any basis and the same may be set aside and the appellants may be acquitted from the charges 6 Cr.Appeal No.1338 of 2013 framed against them.
6. Per contra, learned Public Prosecutor for the respondent-State while supporting the impugned judgment of conviction and order of sentence submits that the judgment was passed by the Trial Court after proper appreciation of evidence available on record. The same is well reasoned establishing the guilt of the appellants beyond a reasonable doubt. Therefore, confirming the impugned judgment of conviction and order of sentence, the appeal filed by the appellants may be dismissed.
7. We have heard learned counsel for the parties at length and perused the record.
8. Prosecution case is based on direct as well as circumstantial evidence and prosecution in its support has examined in all 09 prosecution witnesses including complainant - Sunil (PW-1), who is an eye-witness. Other material witnesses are Kal Singh (PW-2), who is complainant's uncle and whom complainant informed about the incident, Dr. Nitin Joshi (PW-6) who conducted the post-mortem examination of the dead bodies of both the deceased persons namely Maan Singh and Bhuri Bai. S.I. O.P. Aheer (PW-9) who lodged the FIR (Ex.P-1) and merg intimation report (Ex. P-28) about the death of the deceased persons and also partly investigated the matter alongwith I/O SHO Aishwarya Shastri (PW-8).
9. Dr. Nitin Joshi (PW-6) deposed that on 22.12.2011, he conducted the autopsy of the dead bodies of the deceased Bhuri Bai and Maan Singh and observed as follows:
Deceased Bhuri Bai External Injuries:
(i) Incised wound measuring 7 cm x 3 cm extended upto bone, on 7 Cr.Appeal No.1338 of 2013 left temporal region.
(ii) Incised wound measuring 25 cm x 6 cm extended upto bone from right occipital to left occipital on the back side of head.
(iii) Incised wound measuring 10 cm x 4 cm extended upto bone on parietal region of head.
Internal Injuries:
Brain was found outside the body.
All the injuries appears to have been inflicted by hard and sharp object and were anti-mortem in nature.
Deceased Maan Singh External Injuries:
(i) Blood was oozing out from the mouth, nose and right ear.
(ii) Incised wound measuring10 cm x 2 cm x 2 cm on neck with fracture of clavicle bone.
(iii) Incised wound measuring 10 cm x 4 cm on the left temporal region extended upto bone.
(iv) Abrasion measuring 6 cm x 2 cm on neck.
Internal Injuries:
Fracture of occipital bone, temporal bone and also fracture on his wind pipe.
All the injuries were anti-mortem in nature. Injury number
(ii) & (iii) appears to have been inflicted by hard and sharp object, while injury number (iv) appears to have been caused by compression of neck.
10. From the unchallenged testimony of Dr. Nitin Joshi (PW-6) and post-mortem report (Ex. P-19), prepared by him, it is not disputed that the death of the deceased Maan Singh was caused by shock and 8 Cr.Appeal No.1338 of 2013 external hemorrhage due to injuries found on his vital organs within 24 hours from the time of post-mortem examination. It is also not disputed that the death of the deceased Bhuri Bai was caused due to shock and hemorrhage as a result of injuries found on her brain within 24 hours from the time of post-mortem examination as per post-mortem examination report (Ex. P-20).
11. Dr. Nitin Joshi (PW-6) has deposed that all the above injuries found on the bodies of the deceased persons can be caused by the seized weapons i.e. axes (Article- B & C) as per his quarry reports (Ex. P-22 & P-23). Nature of injuries found on the bodies of the deceased persons and also the nature of weapons, used in the crime itself shows that the assault made on the deceased persons were made with intent to commit their murder. Hence there remains no doubt that the nature of death of both the above deceased persons were homicidal and they were murdered at the time of incident.
12. From the statements of complainant Sunil (PW-1), his uncle Kal Singh (PW-2) and suggestions given to them by the appellants during their cross-examination, this fact seems to be undisputed that about 15 days prior to the incident, appellant's father Haroo was died. Complainant Sunil (PW-1) and his uncle Kal Singh (PW-2) deposed that appellants were having doubt that deceased Bhuri Bai was a witch (dayan) and she was responsible for the death of their father Haroo. Appellants have not challenged the aforesaid fact and during cross- examination of the complainant Sunil, it has been suggested to him on behalf of the appellants that there was a dispute between his grandfather (deceased) Maan Singh and appellants on the common way (seda), situated in between their agricultural fields and due to which 9 Cr.Appeal No.1338 of 2013 there were no talking terms between them. Hence, there remains no doubt that appellants were having animosity with the complainant's grandfather deceased Maan Singh.
13. Complainant- Sunil (PW-1), who is a minor boy aged about 09 years, deposed that on the date of incident, at about 20:30 hours, when he was studying in his grand mother's room in the light of diya(lamp), he heard screams of his grandfather Maan Singh from adjacent room and when he went towards his grandfather's room, he saw the appellants assaulting him by axe on his head. He deposed that out of fear, he ran back in his grandmother's room and hide himself underneath the cot, which is near to his grandmother's cot and on which she was sleeping, and saw the appellants entering in that room also and thereafter appellant Parvat assaulted complainant's grandmother by an axe on her head, while appellant Kailash was standing near the door. He further deposed that thereafter, both the appellants fled away from the spot.
14. Complainant- Sunil (PW-1) deposed that thereafter, he went to his aunt Sayri Bai, uncle Kal Singh and Dhanna and narrated the incident to them. Thereafter, he went to Police Chowki Rajgarh and lodged the FIR (Ex. P-1). Kal Singh (PW-2) has supported his aforesaid statement and deposed that at the time of incident, he was on his agricultural field, where his nephew complainant Sunil and his wife Sayri Bai came and told him about the incident, whereafter he went to the place of incident and found his father Maan Singh and mother Bhuri Bai lying dead. Dhanna (PW-4) has also deposed that after the incident Sunil alongwith Sayri Bai came to his house and told him about the incident.
10 Cr.Appeal No.1338 of 201315. Kal Singh (PW-2) deposed that on the same day, he alongwith Sunil went to the Police Chowki Rajgarh on tempo, where Sunil lodged the FIR (Ex. P-1). S.I. O.P. Aheer (PW-9) deposed that on 21.12.20211, at about 22:32 hours, complainant Sunil came to the police chowki alongwith his uncle Kal Singh and Aunt Sayri Bai and made oral complaint about the incident, on the basis of which he lodged the FIR (Ex. P-1) and Merg Intimation report (Ex. P-28) about the death of both the deceased persons namely Maan Singh and Bhuri Bai at Police Chowki Rajgarh. He has specifically deposed that Complainant Sunil had come to the police chowki with his uncle Kal Singh and Aunt Sayri Bai and on the basis of oral complaint made by the complainant, he himself has written the FIR (Ex. P-1), therefore submissions made by the learned counsel for the appellants about the authenticity and admissibility of the aforesaid FIR (Ex. P-1) appears to be unsustainable.
16. Appellants have challenged the testimony of the complainant on the basis that he was a young boy aged about 8-9 years and was susceptible to tutoring. They have also challenged the presence of the complainant on the spot at the time of incident and has examined Komal Singh as defence witness in this regard. Komal Singh (DW-1) is the owner of JCB machine through which on the date of incident a well was dug near the field of Kal Singh and it is said that complainant was present there alongwith Kal Singh instead of at the place of incident.
17. Admittedly, complainant is a young boy aged about 8-9 years and was living with his grand parents while his father Kailash was working in Gujarat. Incident took place in the night at about 20-20:30 hours and JCB machine was not functioning on the land of complainant's uncle, but near his uncle's land and Komal Singh is a resident of some other 11 Cr.Appeal No.1338 of 2013 village and was not known to the complainant. Therefore, his statement about the presence of the complainant near his JCB machine is highly unnatural and not believable at all. Presence of the complainant in his grand parents' house in the night was natural as he was living with them.
18. Complainant Sunil (PW-1) in his statement recorded during trial, had answered the first few questions put by the court very smartly and intelligently and the Court has made a mention while recording his evidence that he could become a witness in this case. That apart, he has given a very natural account of how the appellants killed his grand father and grand mother. Soon after the incident, he told his uncle Kal Singh, aunt Sayri Bai and witness Dhanna that the appellants had killed the deceased persons. Kal Singh (PW-2) and Dhanna (PW-4) have deposed in their evidence that they had been told by Sunil (PW-1) that the appellants had killed the deceased persons with axes. Right from the time of the incident till the time he was examined in the Court, Sunil (PW-1) has consistently said that appellants had killed the deceased persons with the axes. In view of the above, we cannot, therefore, hold that Sunil (PW-1) has been tutored to depose against the appellants. In this regard judgment passed by the Supreme Court in the case of Promode Dey v. State of W.B., [(2012) 4 SCC 559], can be relied upon.
19. The evidence of Complainant Sunil (PW-1) is also corroborated by the fact that blood stained axes were recovered on the very 4 th day of the incident from the house of the appellants. This is clear from the evidence of SHO Aishwarya Shastri (PW-8), the I.O., who has deposed that on 25.12.2011, he arrested the appellant Parvat as per arrest memo (Ex. P-7) and recorded his disclosure statement (Ex. P-9), wherein he 12 Cr.Appeal No.1338 of 2013 disclosed about an axe kept in his house behind the grain storage unit(kothi) and on the basis of which on his instance, he seized a blood stained axe (Article-C) as per seizure memo (Ex. P-11). He further deposed that on the same day, he arrested the appellant Kailash as per arrest memo (Ex. P-8) and recorded his disclosure statement (Ex. P-10), wherein he disclosed about an axe kept in his house behind the grain storage unit(kothi) and on the basis of which on his instance, he seized an axe (Article-B) as per seizure memo (Ex. P-12).
20. SHO Aishwarya Shastri (PW-8) further deposed that on 27.12.2011, he again interrogated and recorded disclosure statement (Ex. P-13) of appellant Parvat, wherein he disclosed about a scarf kept near the guradiya nala under sand and on the basis of which on his instance, he seized a blood stained scarf (Article-A) as per seizure memo (Ex. P-14). Dhanna (PW-4) has fully supported his aforesaid statements and there is no inconsistency in the statements of both the above witnesses about seizure of blood stained weapons alongwith blood stained scarf on the instance of the appellants from their possession.
21. It is also found that in the FSL report (Ex. P-27) blood stains found on the aforesaid articles (A, B & C) were that of human, however, the report is inconclusive in nature, but still it cannot be discarded on this ground only, as held by the Supreme Court in the case of Ramnaresh Vs State of Chhattisgarh [(2012) 4 SCC 257]. Relevant paras are as follows:
"18. PW 1, PW 6 and PW 12 had substantially supported the case of the prosecution and we are unable to notice any substantial conflict or contradiction in their statements. The semen, blood and bloodstained clothes, which had been seized during the investigation, had been sent for 13 Cr.Appeal No.1338 of 2013 examination. The report of the FSL had been placed on record as Ext. P-23.
Such evidence would be admissible in terms of Section 293 CrPC.
19. The merit or otherwise of this report was examined by the High Court as follows:
"(8) During trial, report of the Forensic Science Laboratory, Raipur, Ext.
P-23 dated 31-7-2007 was produced and admitted in evidence under Section 293 of the Code by which the presence of blood on Articles A, B, C, D, E, F1, F2 and presence of seminal stains and human spermatozoa on Articles C, D, E, F1, F2, G1, H1, I1, J1 and K1 was confirmed. Seminal stains and human spermatozoa was not found on Articles A and B. The seminal stains on Articles C, D, E, F1 and F2 were not sufficient for serological examination. The slides Articles G2, H2, I2, J2 and K2 were preserved if DNA test was felt necessary. The prosecution examined as many as 16 witnesses. The appellant-accused examined Samelal, DW 1 and Kamla, DW 2, wife of Ranjeet to establish that the appellant- accused had slept in their respective houses between 9 to 10 p.m. On 9-8- 2006."
20. As is evident from the above findings, the report of the FSL was inconclusive but not negative, which would (sic not) provide the accused with any material benefit"
22. Complainant- Sunil's aforesaid statement about the incident is consistent and finds support from the statements of his uncle Kal Singh (PW-2), Dhanna (PW-4), S.I. O.P. Aheer (PW-9) and FIR (Ex. P-1), lodged by him just after the incident. We cannot draw any adverse inference from the fact that Sayri Bai, was not examined, as she was neither the eye-witness nor the complainant and was in fact not present in the same house where the incident took place as apparent from the evidence of Sunil (PW-1).
23. Hence, there is no reason to disbelieve the statement of the complainant. In such facts and circumstances of the case, in our considered opinion, the learned Trial Court has rightly convicted the appellants for the offences punishable u/S 449 and 302 r/w 34 of IPC.14 Cr.Appeal No.1338 of 2013
The impugned judgment of the Trial Court is, therefore, affirmed and the appeal is hereby dismissed.
The Registry is directed to send back the trial Court record forthwith alongwith the copy of this judgment.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
sh/- 28-10-2022 28 -10-2022
SEHAR HASEEN
2022.10.29
11:24:07
+05'30'