Madhya Pradesh High Court
Majja @ Amait Mishra vs The State Of Madhya Pradesh on 13 August, 2010
Author: Rakesh Saksena
Bench: G.S. Solanki, Rakesh Saksena
(1)
Cr.A.2031/2008
Cr.A.2237/2008
HIGH COURT OF MADHYA PRADESH: JABALPUR
Division Bench: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Shri G.S. Solanki
CRIMINAL APPEAL NO. 2031/2008
1. Manja @ Amit Mishra, S/o Loknath
Mishra, aged about 18 years.
2. Jitendra Kumar Mishra @ Jittu S/o
Loknath Mishra aged about 20 years.
Both R/o Behind Pintu Tent House, H.No.288,
Lalmati, P.S.Ghamapur, Jabalpur.
.......Appellants
-Versus-
State of Madhya Pradesh, Through :
P.S.Ghamapur, District Jabalpur.
.......Respondent
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For the appellants: Shri Praveen Pandey, Advocate.
For the respondent: Shri Prakash Gupta, Panel Lawyer.
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CRIMINAL APPEAL NO.2237/2008
1. Gledwin @ Banti Isai S/o Late Shri
Peter, aged about 22 years, R/o Sindhi
Single quarter, Lalmati, P.S.Ghamapur,
District Jabalpur, M.P.
2. Ajay @ Ajayya S/o Late Shri Sannoo Isai,
aged about 27 years, R/o Lalmati
Near Panchsheel School, Opposite
Ramadhar Dairy, Ghamapur, District
Jabalpur. .........Appellants
-Versus-
State of Madhya Pradesh, Through :
P.S.Ghamapur, District Jabalpur.
.........Respondent
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For the appellants: Ms. Aparna Singh, Advocate.
For the respondent: Shri Prakash Gupta, Panel Lawyer.
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(2)
Cr.A.2031/2008
Cr.A.2237/2008
Date of hearing: 03/08/2010
Date of Judgment: 13/08/2010
**********
JUDGMENT
Per: Rakesh Saksena,J.
Since both the aforesaid appeals arise out of the common judgment passed by the Court below, they are being disposed of by this common judgment.
2. Appellants have filed these appeals against the judgment dated 15.09.2008 passed by Thirteenth Additional Sessions Judge (Fast Track) Jabalpur in Sessions Trial No.378/2007 convicting the appellants under section 302/34 of the Indian Penal Code and sentencing each of them to imprisonment for life with fine of Rs.5000/-, in default of payment of fine, further rigorous imprisonment for 6 months.
3. Briefly stated, the facts of the case are that on 8.6.2007 at about 9 o'clock in the night Virendra Verma went to the house of complainant Rajkumar Yadav and informed him that near Shukla Hotel in front of Machhu Hotel, Banti Isai and Manja etc. were assaulting his brother Pappu @ Rajendra with knives. He was lying near Machhu Hotel. Hearing this, Rajkumar Yadav and his mother rushed to Machhu hotel and saw Pappu lying on the road having number of injuries on his chest, neck, head etc. Pappu informed them that as soon as he along with Virendra Verma and Amit Jha came out of Machhu Hotel, on the road, Banti Isai, Manja, Ajay and Manja's brother Jittu surrounded him; Jittu caught his hand and Banti, Manja and Ajay dealt knife blows to him saying that they would kill him. Rajkumar lifted his brother and after putting him in a rickshaw, took him to police station Ghamapur and lodged First (3) Cr.A.2031/2008 Cr.A.2237/2008 Information Report Ex.P/2 at 9:30 p.m. Police registered the case under section 307/34 of the Indian Penal Code.
4. Injured Pappu was sent to Victoria Hospital, Jabalpur for treatment and medical examination where he was declared dead. Intimation of death of Pappu was sent to police. Police recorded Marg intimation Ex.P/9 and prepared inquest memorandum Ex.P/4. Dead body of Pappu was sent to Medical College Hospital, Jabalpur where Dr. Abhishek Singh (PW-9) conducted autopsy and gave postmortem report Ex.P/14.
5. In the course of investigation, spot map was prepared, statements of witnesses were recorded, accused persons were arrested and on their information, blood stained clothes and weapon used in the offence were recovered. After investigation, charge sheet was filed and the case was committed for the trial.
6. During trial, appellants abjured their guilt and pleaded false implication due to enmity.
7. Prosecution examined Virendra Verma (PW-1), Amit Kumar Jha (PW-12) and Rahul Yadav (PW-13) as eyewitnesses of the incident. Virendra Verma and Amit Kumar Jha, however, did not support the prosecution case, as such they were declared hostile. Rajkumar Yadav (PW-2) and Usha Rani Yadav (PW-5) deposed about the oral dying declaration given to them by the deceased. Dr. Abhishek Singh (PW-9) proved the injuries found by him on the body of deceased. K.P.Dwivedi (PW-3) and Azim Khan (PW-11) deposed about the investigation done by them. Appellants also examined Loknath Mishra (DW-1), Salikram Paroha (DW-2), Prem Shankar Tiwari (DW-3), Harishanker Gupta (DW-4), Somnath Mishra (DW-5), Amrendra Singh (DW-6), Ajju @ Ajay (DW-7) and Bali (DW-8) in their defence. Relying mainly on the evidence of eyewitnesses Rajkumar Yadav (PW-2), Usha Rani Yadav (PW-5) and Rahul Yadav (PW-13), (4) Cr.A.2031/2008 Cr.A.2237/2008 learned trial Judge held the appellants guilty and convicted and sentenced them as mentioned above.
8. Shri Praveen Pandey and Ms. Aparna Singh, learned counsel for the appellants submitted that the evidence of Rajkumar Yadav (PW-2), Usha Rani Yadav (PW-5) and Rahul Yadav (PW-13) was not worthy of reliance as they were relatives and inimical witnesses. Their evidence was discrepant and contradictory. It was not possible for the deceased to have made any dying declaration to Rajkumar and Usha Rani Yadav as he had received serious injuries on his chest resulting in damage of heart and lungs. Trial Court committed grave error in placing implicit reliance on the evidence of these witnesses. He placed reliance on Suresh Chaudhary Vs. State of Bihar- (2003)4 SCC 128, Deepak Kumar Vs. Ravi Virmani and another-(2002) 2 SCC 737, Chellappan Mohandas and others Vs. State of Kerala -1995 SCC (Cri) 366 and Major Singh Vs. State of Punjab-AIR 2003 SC 342. On the other hand, Shri Prakash Gupta, learned Panel Lawyer for the State contended that the evidence adduced by the prosecution was reliable. Trial Court committed no error in holding the appellants guilty by placing reliance on the evidence of the aforesaid witnesses. He supported the judgment of conviction passed by the trial Court and urged that the appeals preferred by the appellants be dismissed.
9. We have heard the learned counsel of both the sides and perused the evidence and material on record.
10. Rajkumar Yadav (PW-2) deposed that at about 9:00 p.m. when he was at his house,he received information from Virendra Verma and 3-4 other persons that his brother Pappu was being assaulted by the appellants with knife etc. He and his mother rushed to the spot and found Pappu lying in a pool of blood. When he asked his brother, he told him that Banti, Manja and Ajay @ Ajayya had (5) Cr.A.2031/2008 Cr.A.2237/2008 assaulted him with knife, 'Chhuri' and 'Kasaiya' respectively and at that time Jittu had caught hold of his hands. Usha Rani Yadav (PW-5), the mother of deceased, reiterated the same story. According to both of them, Pappu suffered injuries on his chest, hands, hip, back, in the neck and the ear. One of his lungs was protruding out from the wound. Immediately, they carried Pappu to Ghamapur Police Station. According to Rajkumar (PW-2), his brother tried to tell the police about the incident but he could not speak, therefore, he informed the police about the incident as narrated by his brother. Police recorded First Information Report Ex.P/2. According to him, police sent them to Victoria Hospital, Jabalpur. On way, Pappu had become unconscious. When they reached Victoria Hospital, doctor declared Pappu dead. His mother then went home and he along with the police people went to spot where spot map was prepared. Next day, dead body was sent for postmortem examination to Medical College Hospital.
11. Statement made by deceased to Rajkumar (PW-2) and Usha Rani Yadav (PW-5) was treated as oral dying declaration under section 32 of the Evidence Act. What was stated by the deceased was informed to police officer who recorded the First Information Report. Learned counsel for the appellants submitted that these witnesses were got-up witnesses and they were set up by the prosecution to prop-up its falling case. The evidence of these two witnesses was discrepant and contradictory inter se and it was belied by the evidence of Investigating Officer Azim Khan (PW-11) and K.P. Dwivedi (PW-3). Learned counsel for the appellants pointed out that Rajkumar (PW-2) deposed that when they reached the police station, his brother also informed the police about the incident, but since he was not able to speak, police officer asked him to make it clear what he had stated, thereafter, his report was recorded. It is true that (6) Cr.A.2031/2008 Cr.A.2237/2008 Investigating Officer Azim Khan (PW-11) denied that the incident was narrated to him by deceased, however, he stated that the deceased could only inform him the names of assailants, but could not narrate the whole incident. Since he was in painful condition and there was excessive bleeding; after recording the First Information Report, he sent them to hospital. There appears no substantial contradiction between the evidence of Rajkumar and the Investigating Officer.
12. Another contradiction pointed out by the learned counsel for the appellants that Rajkumar stated that deceased was sent to hospital in a jeep, whereas according to Azim Khan, he was sent to hospital in a auto-rickshaw. Again this discrepancy does not appear substantial in nature.
13. Learned counsel contended that another Investigating Officer K.P. Dwivedi (PW-3) stated that when he recorded inquest memo Ex.P/4 after the death of deceased, he found a white hospital bandage wrapped around his head. According to him, it indicated that before the deceased was brought to police station, he was taken to some other hospital, therefore, the evidence of Rajkumar (PW-2) was not trustworthy. This fact was firmly denied by Rajkumar (PW-2) as well as Usha Rani Yadav (PW-5). Usha Rani Yadav (PW-5), however, stated that she herself had tied a handkerchief on the wound of Pappu after the incident. All the shop-keepers whose shops were situated near the place of incident, had started closing down their shops. We are also not impressed by the arguments advanced by learned counsel for the appellants that since the police did not seize the blood stained clothes of Rajkumar and Usha Rani Yadav and did not interrogate rickshaw puller who carried the deceased to the police station, their evidence was liable to be discarded. If Investigating Officer did not take note of these facts, it was mistake (7) Cr.A.2031/2008 Cr.A.2237/2008 on his part but the prosecution case could not be thrown out on these grounds. It is true that Usha Rani Yadav (PW-5) made an improvement in stating that she had seen all the accused fleeing from the place of occurrence holding weapons which were blood stained, but merely on that ground her whole of the testimony which otherwise appeared natural, reliable and corroborated by the evidence of Rajkumar (PW-2), cannot be discarded.
14. Learned counsel for the appellants argued that the fact that from the chest wound of the deceased, a part of lungs was coming out was not disclosed by witness Rajkumar (PW-2) in the First Information Report Ex.P/2 and the police statement Ex.D/1. Similarly, there was discrepancy as to whether appellant Jittu caught the hand of deceased by both of his hands or one hand. In our opinion, these discrepancies were merely the details given by the witness in the course of cross-examination. They did not amount to contradiction much less material contradiction. The evidence of Rajkumar (PW-2) is substantially corroborated by the evidence of his mother Usha Rani Yadav who accompanied him all the way when he went to the spot of incident. Their evidence does not become suspicious because Virendra Verma (PW-1), alleged eyewitness of the incident, who is said to have gone and informed them about the incident, did not support the prosecution case. Though the facts narrated by Virendra Verma to Rajkumar and Usha Rani Yadav cannot be accepted as admissible part of evidence, yet the part of evidence that Virendra Verma came to their house immediately after the assault was made on deceased, can be accepted.
15. The arguments advanced by learned counsel for the appellants that the evidence of PW-2 and PW-5 should not be accepted because they were close relatives of the deceased being his brother and mother, and were inimically disposed towards the (8) Cr.A.2031/2008 Cr.A.2237/2008 accused persons, cannot be accepted. In Suresh Chaudhary Vs. State of Bihar-(2003)4 SCC 128, Supreme Court observed that where sole eyewitness of the incident who supported the case of prosecution was brother of deceased and another eyewitness did not support the prosecution case, it became incumbent on the Court to consider and assess the evidence of sole eyewitness rather cautiously to come to the conclusion whether the court was justified in relying on this evidence either with corroboration or even without the same. The conduct of Rajkumar (PW-2) and Usha Rani Yadav (PW-5) can in no manner be said to be suspicious. Their evidence was natural and was substantially corroborated by the evidence of Investigating Officer Azim Khan (PW-11). In our opinion, trial Court committed no error in accepting the evidence of these two witnesses and placing reliance on the evidence of oral dying declaration made by deceased to them at the spot.
16. Prosecution examined Virendra Verma (PW-1), Amit Kumar Jha (PW-12) and Rahul Yadav (PW-13) as eyewitnesses of the occurrence. Virendra Verma and Amit Kumar Jha did not support the prosecution case and turned hostile. In these circumstances, Rahul Yadav (PW-13) became the solitary eyewitness of the incident. Learned counsel for the appellants contended that this witness was not of such a quality as to hold him an absolutely reliable witness. He was a relative and inimical witness. Apart from it, he had criminal record also. His name was not mentioned in the First Information Report Ex.P/2 which was lodged by Rajkumar (PW-2) on basis of information furnished by the deceased. In Deepak Kumar Vs. Ravi Virmani and another-(2002) 2 SCC 737, Supreme Court observed that "it is not that multiplicity of witnesses would improve the situation nor corroboration from independent witnesses stands out to be a mandatory requirement. Witnesses though be (9) Cr.A.2031/2008 Cr.A.2237/2008 interested can be relied upon provided, however, the evidence available on record is trustworthy and creates a confidence in the mind of the Court that the scrutiny entails only pointing out of commission of an offence by the accused persons and that scrutiny in totality leads to an inevitable conclusion of the guilt of the accused. In Suresh Chaudhary (supra), Apex Court observed that where sole eyewitness of the incident who supported the case of prosecution was brother of deceased; the other eyewitness did not support the prosecution case, it became incumbent on the Court to consider and assess the evidence of sole eyewitness rather cautiously to come to conclusion whether the Court was justified in relying on the evidence of sole eyewitness either with corroboration or even without the same. Thus, it is clear that the evidence of sole eyewitness who may be relative of deceased or inimical to accused, can be accepted, provided, on a closure or deeper scrutiny, it appears to Court trustworthy and reliable.
17. Rahul Yadav (PW-13) very honestly admitted that he was detained in jail in connection with a case registered under sections 324,326 of the Indian Penal Code and that for about 7 months he had remained absconding. He also admitted that in the same case, his father and brother were also made accused. The case was registered on the report of one Dharmendra Rajak. He also admitted that deceased was the son of his father's sister. According to him, at about 8:30 and 9:00 p.m. when he was returning from the house of his friend and he reached near Shukla Hotel, he saw appellants Banti, Manja, Jittu and Ajayya assaulting Pappu. He tried to save him but he was made to run away. He then went to the house of Pappu but nobody was there. Thereafter he went to his house. Learned counsel for the appellants submitted that the name of this witness was not found mentioned in the First Information Report lodged by (10) Cr.A.2031/2008 Cr.A.2237/2008 Rajkumar (PW-2). In our opinion, no inference can be drawn on that account because it was not lodged by an eyewitness. There is nothing on record to indicate that when Rajkumar Yadav reached the spot, this witness was present. The First Information Report was lodged on the basis of the information given to Rajkumar by the deceased. Deceased had given the information to Rajkumar when he was in seriously injured condition. It is quite possible that the deceased might not have noted the presence of Rahul Yadav near the place of occurrence. This witness was subjected to a very lengthy cross-examination which ran in about 11 pages. Main ground of attack on his testimony was with respect to his location. Learned counsel for the appellants pointed out that this witness stated that he saw the occurrence when he reached near Shukla Hotel whereas according to Investigating Officer Azim Khan (PW-11), from Shukla Hotel, Machhu Hotel was not clearly visible as there was slight bent on the road. On perusal of spot map Ex.P/16, we find that the road between Shukla Hotel and the place of incident was straight. Machhu Hotel was, however, situated on the side of the road, it is quite possible that Machhu Hotel might not be visible, but since the incident had taken place on the road, it could have been watched from Shukla Hotel. It is common experience that when an incident occurs, even if a person is at some distance, out of curiosity, he tries to go at a place from where the incident can be seen. It cannot be expected that a person would not move from a place and would remain static like a pillar.
18. Learned counsel for the appellants argued that though in the evidence about oral dying declaration, it was said that appellant Jittu merely caught the hands of deceased, but Rahul Yadav deposed that all the appellants assaulted Pappu. Therefore, his presence at the spot was doubtful. In our opinion, it made no difference if this (11) Cr.A.2031/2008 Cr.A.2237/2008 witness did not specifically state that Jittu caught the hands of Pappu. In colloquial language, all the persons participating in assault are said to have indulged in beating. No question was put to this witness in cross-examination that Jittu was not armed and had not participated in the incident. It is, therefore, clearly borne out that appellant Jittu participated in the assault.
19. Learned trial Judge has discussed the evidence of Rahul Yadav (PW-13) in great detail and has critically appreciated his evidence. In para 24 of his deposition, this witness stated that he had no quarrel with the appellants in the past. There was no cause for enmity between them. After hearing the noise of quarrel he went towards the place of occurrence with a view to save deceased despite the fact that assailants were armed with knives. In para 25, he stated that fourth assailant caught the hand of Pappu from behind. He heard the noise and saw the quarrel from about 50 paces. Thereafter, he reached near the assailants. Learned counsel for the appellants argued that it was unnatural on his part to not to call the police people who remained on duty near the hotels and in not lodging the First Information Report immediately. Rahul Yadav stated that at that time he did not see any policeman at the spot. Since he thought it fit to go and inform the mother and brother of Pappu, it cannot be held unnatural that he did not go to police station to lodge the report. It is common knowledge that all the persons do not think alike. We are unable to accept the arguments advanced by learned counsel for the appellants that merely because he had criminal record and he was related to deceased, his evidence should be discarded. We are not impressed by the contention made by learned counsel for the appellants that his evidence should be discarded because he did not tell any one that the appellants had committed the offence in view of the fact that statement of this (12) Cr.A.2031/2008 Cr.A.2237/2008 witness under section 161 of Cr.P.C. was recorded on 8.6.2007 itself and that he had no personal enmity with the accused persons. Facts of the case Chellappan Mohandas and others Vs. State of Kerala -1995 SCC (Cri) 366 are different than the case on hand. After close and critical appreciation of the evidence of Rahul Yadav, we find that his evidence was trustworthy. He had seen the incident. His evidence stood corroborated from the evidence of dying declaration proved by the evidence of Rajkumar (PW-2), Usha Rani Yadav (PW-5) and also by the medical evidence of Dr.Abhishek Singh (PW-9) who found following injuries on the body of deceased:-
(1) Incised wound over left thigh on lateral aspect 3" x 1½" in diameter, margins sharp, clear cut and inverted. Depth about 5".
(2) Incised wound close to wound No.1 2½" x 1/4"
in size. Major blood vessels and muscles cut. 4" in depth.
(3) Incised wound over retro-sternal region obliquely placed 2½ x 1½" on left side below 4th intercostal space. Depth about 4". Pericardium and right ventricle cut and blood filled in pleural cavity.
(4) Scalp deep incised wound just over right occipital area over scalp 2" x 1/2" in diameter. (5) Incised wound over left temporo occipital area 2" x 1/2" scalp deep.
(6) Skin deep incised wound just over right
shoulder 2½" x 1/2".
(7) Incised wound over lateral aspect of right
forearm size 2" x 1/2".
All wounds had clear cut sharp margins. Shirt, pants and banyan of deceased were stained with blood and had multiple cut margins which corresponded to the described injuries.
In the opinion of doctor, death was caused due to haemorrhagic shock due to injury of heart leading to cardio respiratory failure. Injuries were antemortem in nature and were caused by sharp cutting/ penetrating object. Injuries were sufficient (13) Cr.A.2031/2008 Cr.A.2237/2008 in ordinary course to cause death and were homicidal in nature. Postmortem report is Ex. P/14.
20. Since we are of the view that the evidence of eyewitness Rahul Yadav (PW-13) and evidence of oral dying declaration given by deceased to Rajkumar (PW-2) and Usha Rani Yadav (PW-5) is reliable and it has been established that it were the accused/appellants who caused injuries to deceased, we feel it not necessary to discuss about the recovery and seizure of weapons and clothes from the possession of appellants.
21. As far as defence of accused Manja and Jitendra is concerned, they examined their father Loknath Mishra (DW-1) and Salikram (DW-2) to establish that they had not participated in the incident and they were falsely implicated due to enmity. Loknath Mishra stated that deceased and Rajkumar (PW-2) had lodged a false report against Manja in the past. He had complained about that to C.S.P. Ranghi. On 8.6.2007, police had arrested his sons from his house in the night. Salikram (DW-2) stated that he had seen the incident; accused persons were not present in the incident. In our opinion, evidence of these witnesses is not enough to discard the evidence adduced by the prosecution.
22. Prem Shanker (DW-3), Sub Editor of Dainik Bhaskar Newspaper, stated that he published the news in paper Ex.D/10 on the basis of information supplied by Amren Singh, C.S.P. and Azim Khan, T.I. Police. In Ex.D/10 name of Jitendra was not given and some names were different than accused persons. Amrendra Singh (DW-6) and Azim Khan (PW-11), however, denied that they gave any news to paper or in T.V. interview.
23. Ajju (DW-7) and Bali (DW-8) deposed that in the night of 8.6.2007 they were called to police station, Ghamapur and made to sit till next morning. These witnesses, however, could not say in (14) Cr.A.2031/2008 Cr.A.2237/2008 what connection they were called. They did not even say that they were interrogated in connection to the murder of Pappu. Their evidence does not render any help to defence. We find no substance in the contention of the learned counsel for appellants that the defence evidence created doubt in the prosecution case.
24. Next contention of the learned counsel for the appellants is that since there is no allegation that appellant Jittu @ Jitendra caused any injury to deceased, his conviction under section 302 with the aid of section 34 of the Indian Penal Code is illegal, and he deserves to be acquitted. In our opinion, the argument advanced by learned counsel for the appellants is wholly misconceived. There is clear evidence of eyewitness and oral dying declaration that accused Jittu facilitated the accused persons in causing the knife injuries to deceased by catching his hand. Therefore, in our opinion, it cannot be held that he did not act in furtherance of the common intention of all. In a similar situation, Supreme Court in the case of Major Singh Vs. State of Punjab - AIR 2003 SC 342 held the appellant guilty of murder with the aid of section 34 of the Indian Penal Code. Supreme Court observed "We are unable to accept the explanation of the learned counsel. It is to be seen from the prosecution evidence that when the assailants picked up the weapons and came to assault the victims the appellant held the hand of one of the victims, so as to help the assailants assault the victims. There is no material on record to show that he either released the hand of the deceased or tried to dissuade the assailants from attacking. In such a situation, in our opinion, it is reasonable to conclude that the appellant also shared the intention of the assailants which is now held to be one to commit the murder of the deceased."We, therefore, hold that appellant Jittu @ Jitendra has been rightly convicted under section 302 read with section 34 of the Indian Penal Code. (15) Cr.A.2031/2008 Cr.A.2237/2008
25. In view of the above discussion, we are of the considered opinion that the Court below has rightly appreciated the evidence on record and recorded the conviction of the appellants under section 302/34 of the Indian Penal Code. Accordingly, the impugned judgment of conviction and sentence is affirmed.
26. Both the appeals fail and are hereby dismissed.
(Rakesh Saksena) (G.S. Solanki)
Judge Judge
b
(16)
Cr.A.2031/2008
Cr.A.2237/2008
HIGH COURT OF MADHYA PRADESH: JABALPUR
CRIMINAL APPEAL NO. 2031/2008
Manja and another
vs.
State of M.P.
CRIMINAL APPEAL NO.2237/2008
Gledwin @ Banti Isai and another
vs.
State of M.P.
JUDGMENT
For Consideration
(Rakesh Saksena)
Judge
/08/2010
Hon'ble Shri Justice G.S.Solanki
Judge
/08/2010
Post for : /08/2010
(Rakesh Saksena)
Judge
/08/2010