Madhya Pradesh High Court
Santosh Choudhari vs The State Of M.P on 16 July, 2013
Author: B. D. Rathi
Bench: B. D. Rathi
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Criminal Appeal No.2171/2003
Santosh.............................................................................................
......Appellant
Vs.
The State of Madhya Pradesh............................................................
Respondent
For the appellant : Smt. Archana Tiwari, Advocate.
For the respondent : Shri Vijay Pandey, Deputy Advocate General.
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Present: HONOURABLE SHRI JUSTICE AJIT SINGH
HONOURABLE SHRI JUSTICE B. D. RATHI
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JUDGMENT
(16.7.2013) The following judgment of the Court was delivered by :
B. D. Rathi, J. The above named appellant has been convicted for an offence under section 302 of the Indian Penal Code for committing the murder of Chhakkilal on 18/9/2002 at 8 p.m. at Khirhani Phatak, Katni, and sentenced to undergo imprisonment for life. He has also been convicted under Section 25 of the Arms Act 1959 with a sentence of one year rigorous imprisonment.
2. According to the prosecution case, on the fateful night of 18/9/2002 at about 8'O Clock, complainant Horilal (PW5), father of the deceased, was sitting in the house of his father-in-law Ramapati Nishad. At that time appellant Santosh and deceased Chhakkilal were quarrelling with each other in front of the house of Chunnilal Nishad. On hearing the cries of Chhakilal, complainant Horilal immediately rushed towards the spot and saw that Chhakilal was being stabbed repeatedly by the appellant with a Gupti (sharp edged weapon) on left side of his chest, left side of the forehead as well as on the occipital region. Resultantly, the deceased fell down and the appellant fled 2 from the spot. The incident was witnessed by Pallu Nishad, Jagannath Nishad and others. Dehati Nalishi (Ex.P/1) was written on the spot at about 8.30 p.m. by Town Inspector Akahand Pratap Singh. Crime No.673/02 (Ex.P/2) at Police Station Katni, was registered on the basis of the Dehati Nalishi by Assistant Sub-Inspector Shri U.S.Parihar.
3. During the course of investigation, autopsy was conducted by Dr. Naresh Saraogi (PW4). Weapon of offence i.e. Gupti was seized from the spot vide seizure memo (Ex.P/10). Forensic Science Laboratory Report (Ex.P/
12) was obtained in regard to seized articles.
4. During the trial, the appellant pleaded not guilty to the charges and contended that he had been falsely implicated.
5. The trial court, after appreciating the evidence and materials brought on record including the statements of eye-witnesses Horilal (PW5) and Buddhabai (PW3), held the appellant guilty of committing the murder of Chhakkilal with a Gupti.
6. Learned counsel on behalf of the appellant argued that the statements of eye-witnesses are not reliable. Name of Buddhabai (PW3) was not mentioned in the first information report. That apart, Buddhabai also stated in paragraph 1 of her evidence contrary to the first information report and the statement of Horilal, that deceased was beaten by a shaft (Danda). Statement of Horilal (PW5) is also not reliable because being father of deceased, he is an interested witness. Apart from that, Horilal himself stated in paragraph 3 of his evidence that place of incident could not be seen from the house because of a turning in between. Similarly, it is also submitted that independent witnesses, named in the first information report, were not produced in the Court and, therefore, conviction cannot be sustained in such circumstances.
7. On the contrary, learned Deputy Advocate General, while making reference to the incriminating pieces of evidence on record, submitted that the conviction is well merited. He also argued that it is not the rule of law to discard the evidence of relatives so also it is for prosecution how to prove its case.
38. Having regard to the arguments advanced by the parties, we have perused the evidence and material on record. Horilal (PW5), who is an eye- witness, has categorically testified that his son Chhakkilal was murdered by the appellant with a Gupti. He has deposed that injuries were inflicted on the left side of the chest and near the left eyebrow. His evidence is fully corroborated by the autopsy report (Ex.P/4-A). Dr. Naresh Saraogi (PW4) had conducted the autopsy who opined that the cause of death was shock on account of injuries on heart and lung.
9. Buddhabai (PW3) also narrated in paragraph 1 of her evidence that she saw Chhakkilal was being assaulted by the appellant with a Danda and after throwing it on spot he ran away. She is an illiterate witness and hence unable to differentiate Gupti from a Danda. Gupti is a sharp edged long knife that is kept in its wooden sheath that looks like a stick. Due to this reason, she stated that she saw Chhakkilal was assaulted by Danda.
10. Horilal (PW5) has testified that he had lodged the report (Ex.P/1) on the spot when police came there. Thereafter, corpus of Chhakkilal was sent for post-mortem by police. Gupti was also seized from the spot vide seizure memo (Ex.P/10). In support of his statement Police Constable Umesh Singh (PW6) and Assistant Sub-Inspector U.S.Parihar (PW1) stated that Dehati Nalishi (Ex.P/1) was recorded on the spot by Town Inspector Akahand Pratap Singh, on the basis of which the first information report was registered. Gupti (Article-C) was sent for Forensic Science Laboratory examination and as per Forensic Science Laboratory report (Ex.P/12), human blood-stains were found present on the Gupti.
11. We agree with the contention of learned Deputy Advocate General that it is the choice of prosecution how it wants to prove its case. It is not necessary that all the eye-witnesses should be examined. Besides this, in para 14 of the judgment, it is mentioned that independent witnesses Jagannath and Kallu were summoned by all the means but summons and warrants were returned un-served, therefore, they could not be examined.
12. For the above reasons, we are of the view that the conviction of the appellant under Section 302 of the Indian Penal Code is just and proper. Although conviction under Section 25 of the Arms Act 1959 has been 4 challenged in appeal memo yet no arguments were advanced in this regard. We have gone through the evidence. In this regard, no notification issued under Section 4 of the Arms Act 1959 has been produced to prove that carrying of seized Gupti in the area where offence was committed was prohibited.
13. In view of the aforesaid, we are of the view that conviction under Section 25 of the Arms Act 1959 cannot be sustained.
14. In the result, the appeal is allowed in part. Appellant is acquitted of the offence under Section 25 of the Arms Act 1959. His conviction and sentence for the same are, accordingly, set aside. However, his conviction and sentence under Section 302 of the Indian Penal Code are maintained.
15. Copy of the judgment be sent to the trial Court for compliance and necessary action.
(AJIT SINGH) (B. D.
RATHI)
JUDGE JUDGE
(and)