Madhya Pradesh High Court
Malkhan Singh vs State Of M.P. on 15 May, 2002
Equivalent citations: 2002(4)MPHT25
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT S.L. Jain, J.
1. This appeal is directed against the judgment and findings recorded by the learned IIIrd Additional Sessions Judge, Sagar in Sessions Trial No. 245 of 1987, whereby the accused/appellant has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment.
2. Succinctly narrated, the prosecution case is that the appellant Malkhan Singh and acquitted accused Abhay Singh are the real brothers. Both these brothers were having enmity with the deceased Motilal. On the date of incident i.e., on 13-5-87 deceased Motilal left his home to purchase kerosene for his shop from Gorjhamar. He had with him an empty tin and a bag. When Motilal did not return till the evening, his son Ashok Kumar alias Munna (P.W. 14) became anxious. He deputed his younger brother Pradeep to find out the whereabouts of his father. Pradeep was sent to Gorjhamar. Pradeep returned with an information that Motilal did not reach Gorjhamar. Thereon Ashok Kumar alongwith Ambika Mishra, Kashiram and Pradeep went towards Gorjhamar in search of Motilal. They found the dead body of Motilal near a water channel (Nala) in a pool of blood. His neck was chopped from the trunk. There were injuries in the fingers of his right hand also. Near the dead body a cap, an empty bag, an empty tin kept in a bag which were the belongings of the deceased were lying. The head of the deceased was found at a short distance from the trunk.
3. According to prosecution version ten minutes after departure of Motilal for Gaurjhamar accused persons were seen going towards Gaurjhamar armed with an axe. Immediately, after the incident accused Malkhan was seen by Narendra Kumar (P.W. 15) with a blood stained axe. At that time the clothes which the appellant wore, were seen soaked with blood. He was going towards the well of Dharmu Prajapati. FIR of the incident was lodged by Ashok Kumar (P.W. 14) at P.S. Gaurjhamar on the date of incident itself.
4. During investigation, inquest, Panchnama, Ex. P-2 was prepared by Mahendra Singh Gaur (P.W. 20), S.H.O., P.S. Gorjhamar. Blood stained soil, plain soil, some leaves, a cap, towel, bag containing empty tin, shoes and a stick belonging to deceased were also seized from the spot vide Ex. P-3. The dead body of Motilal was sent to District Hospital (known as Tili Hospital'), Sagar for post mortem examination. The clothes of Motilal were recovered by the doctor conducting post mortem examination from the dead body and they were seized during investigation. One axe was recovered at the instance of accused Malkhan Singh from a well vide Ex. P-6. Blood soaked clothes were seized at the instance of acquitted accused Abhay Singh. Seized articles blood stained and plain soil, blood stained and plain leaves, tin, bag, one pair of shoes, kurta, dhoti, underwear and baniyan of deceased, axe seized at the instance of accused Malkhan Singh, pant, shirt seized from accused Malkhan Singh and pant seized at the instance of acquitted accused Abhay Singh were sent to F.S.L., Sagar for their chemical examination. As per report of the Assistant Chemical Examiner, blood was found on soil, leaves, tin, bag, shoes, towel, the clothes of deceased, shirt seized from Malkhan Singh and pant and shirt seized from Abhay Singh. Thereafter, blood stained earth, leaves, tin, bag, shoes, earth, towel, kurta, dhoti, underwear, baniyan, axe, two shirts and pant were sent for chemical examination to the Serologist and Chemical Examiner to the Government of India, but the blood group could not be determined due to disintegration. Ex. P-38 is the report of Serologist.
5. After investigation, a charge-sheet under Section 302 read with Section 34 of the IPC was filed against both the accused. Accused Abhay Singh abjured the guilt but the accused Malkhan Singh pleaded guilty to the charge. He pleaded that he had enmity with the deceased. The deceased assaulted his mother, brother and Guru. Therefore, he killed him with an axe. In his examination under Section 313 of the Code of Criminal Procedure also the accused Malkhan Singh admitted his guilt.
6. The learned Trial Judge, predominently, relying on the evidence of Ashok Kumar (P.W. 14), Narendra Kumar (P.W. 15), Pradeep (P.W. 16) and Anandrani (P.W. 17) recorded the aforesaid conviction and sentenced the appellant/accused Malkhan Singh as indicated above. The Trial Court did not find accused Abhay Singh guilty of the offence charged and accordingly acquitted him.
7. We have heard Shri P. Rusia, learned Counsel appearing for the appellant and Shri S.K. Gangrade, learned Panel Lawyer appearing for the State.
8. Shri Rusia, learned Counsel appearing for the appellant has submitted that the case is based on circumstantial evidence and in a case of circumstantial evidence each circumstance must be proved beyond reasonable doubt by independent evidence and the circumstances so proved must form a complete chain without giving room to any other hypothesis and should be consistent only with the guilt of the accused.
9. In this case the conviction of the appellant is based on following circumstances:--
(1) The deceased and appellant Malkhan Singh were on inimical terms;
(2) When the deceased had left the village for Gorjhamar the appellant and co-accused followed him;
(3) Soon thereafter the appellant was seen armed with an axe having blood stains and at that time his clothes were also seen soaked with blood; and (4) The blood stained axe was seized at the instance of accused Malkhan Singh.
In addition to above circumstance the plea of guilt of the accused is also available on record.
10. Regarding the first circumstance P.W. 14 Ashok Kumar has stated that the house of Malkhan Singh is situated opposite to his house. Prior to the incident he was assaulted by Malkhan Singh. A report was lodged at Police Station Gorjhamar and he was medically examined at Sagar Hospital. Because of this incident, they were having inimical terms. P.W. 20 Mahendra Singh Gaur has also stated that appellant was on inimical terms with the family members of the deceased. Two reports of Ashok were recorded vide Rojnamcha Sanha No. 399, dated 16-5-86 and No. 401, dated 10-5-86 against the appellant. In support of this, documents Exs. P-15, 16, 21, 22, 34 and 35 have been proved. P.W. 14 Ashok Kumar and P.W. 20 Mahendra Singh Gour have not been cross-examined on this point and there is no reason to disbelieve these witnesses. From the evidence of these witnesses it is established that appellant was on inimical terms with the deceased and his family members.
11. Regarding second circumstance, P.W. 14 Ashok Kumar has stated that on 13th May, 1987 his father Motilal left for Gorjhamar. Appellant and acquitted accused followed him and at that time Malkhan Singh was armed with an axe. Anandrani (P.W. 17) has also stated that her father-in-law Motilal left for Gorjhamar to purchase kerosene. Appellant Malkhan Singh and his brother Abhay Kumar followed her father-in-law and were abusing him. There is nothing in cross-examination of these witnesses to discard their testimony in this respect. Therefore it is established that the appellant followed the deceased.
12. Regarding the third circumstance Narendra Kumar (P.W. 15) has stated that on the relevant date he was searching his cow near his field. He saw appellant coming from the side of Khamkheda. His kurta and full-pant were soaked in blood and he was armed with an axe which was also blood stained.
The appellant left towards the well of Dharmu. In the Village Gorjhamar Narendra had learnt about the murder of Motilal, therefore, he reached at the police station. Ashok Kumar (P.W. 14) has stated that when he reached at the police station, Narendra was seen outside the police station. Narendra narrated him the fact that appellant was seen armed with a blood stained axe and his clothes were also soaked with the blood. He narrated this fact also to the police at the time of lodging the FIR. In this respect Ashok Kumar (P.W. 14) stands corroborated by his promptly lodged First Information Report, Ex. P-14. Thus, it is established that immediately after the incident appellant was seen armed with blood stained axe and his clothes were also soaked in blood.
13. Regarding 4th circumstance Mahendra Singh Gaur (P.W. 20) has stated that when he arrested appellant Malkhan Singh he was wearing a Kurta and Pant. Both these clothes were soaked with blood. He seized the clothes vide Ex. P-4. He has further stated that when he interrogated the accused Malkhan Singh, he informed that he has thrown an axe in the well of Dharmu after breaking the same. Ex. P-8 is the memorandum of the statement of accused Malkhan Singh recorded by Investigating Officer Mahendra Singh (P.W. 20). Mahendra Singh has further stated that at the instance of the appellant he reached at the well of Dharmu. The appellant was descended in the well with the help of a rope. Accused took out the axe from the well and produced it before him which was seized by him vide Ex. P-6. Gafoor (P.W. 8), the attesting witness of memorandum Ex. P-5 and seizure memo Ex. P-6 has stated in Paragraph 2 of his statement that Malkhan Singh informed the police that an axe has been thrown in the well of Dharmu. Accused pointed out the well of Dharmu and brought the axe from the well. The axe, Article 1 was seized in his presence. Thus, the evidence of Investigating Officer is corroborated by the evidence of Gafoor (P.W. 8), although Durgashanker (P.W. 4) has not supported the prosecution. He has stated that accused Malkhan Singh did not make any statement to the police and no recovery was made at the instance of accused Malkhan Singh. This witness has been declared hostile by the prosecution.
14. We have thoroughly examined the evidence of Mahendra Singh (P.W. 20) and Gafoor (P.W. 8). We find no reason to disbelieve them on the point that the axe, Article 1 was seized at the instance of accused Malkhan Singh.
15. From the report of Assistant Chemical Examiner, F.S.L., Sagar, marked as Ex. P-34, it is clear that blood was found on the axe which was marked as Article 1 by the laboratory, although as per Ex. P-38, the report of the Serologist, the origin of the blood found on the axe could not be determined as the same was disintegrated. Thus, it is established that the blood stained axe was seized at the instance of the accused.
16. One more important circumstance available against the accused is that when the charge was framed and read over to the accused and he was asked as to whether he pleads guilty to the charge or not, he pleaded guilty, but the learned Sessions Judge did not accept the plea of guilt and exercised his discretion to proceed with the trial. When accused pleads guilty and the Court does not accept the same and proceeds with the trial for recording evidence, it cannot convict the accused by reverting to the plea of guilt. In such circumstance the Court will have to complete the recording of the prosecution evidence and then acquit the accused or convict him upon consideration of the prosecution evidence alongwith admission of the guilt of the accused made in the course of trial. The Court can consider such plea alongwith the evidence on record to consider whether the accused can be convicted of the charges of murder or not. If any case law is necessary on this point, we may refer to In re. Govindappa (AIR 1968 Mysore 145) wherein the Court observed thus:--
"12. In Hasaniddin Mohammad v. Emperor, AIR 1928 Cal 775, it was ruled out that the trial of an accused person does not necessarily end if he pleads guilty but evidence may and should be taken in cases of murder as if the plea had been one of not guilty and case decided upon the whole of the evidence including the accused's plea......"
17. Shri Rusia contended that Ashok Kumar (P.W. 14), Pradeep (P.W. 16), Narendra (P.W. 15) and Anandrani (P.W. 17) are the relatives of the deceased and therefore, are not reliable. Related witnesses are not necessarily unworthy of credence though the fact that the witnesses have some interest in the matter must put the Court on its guard and the evidence of such witnesses must be subjected to close scrutiny and the Court must assess the testimony of such witnesses and indicate the reasons for accepting or rejecting it. The evidence cannot be at once discarded simply because it came from the interested witnesses.
18. In the present case, the testimony of relatives of the deceased cannot be thrown over board simply on the ground that they had animus towards the appellant. Being the near and dear of the victim they would be the least disposed to falsely implicate the appellant or substitute him in place of real culprits. The chronology of the events narrated and the factual conspectus narrated by the witnesses are unshakeable and the intrinsic quality of the evidence of these witnesses compel us to implicitly rely on their testimony and we accept the same. Nothing tangible had been brought in the cross examination for discarding their testimony. On independent analysis of the evidence of these witnesses we do not find any substantial and compelling reason to brush aside their testimony and to take a view contrary to the one taken by the Trial Court.
19. Further the statement of the appellant recorded under Section 313 of the Cr.PC also contains his inculpatory admissions. The object in examining the accused with reference to incriminating circumstances appearing against him in prosecution evidence is not for observance of a ritual in a trial, nor it is a mere formality. It has a salutory purpose. It enables the Court to be apprised of what the indicted person has to say about the circumstances pitted against him by the prosecution. In all such cases the Court gets the advantage of knowing his version about those aspects and it helps the Court to effectively appreciate and evaluate the evidence in the case. If an accused admits any incriminating circumstance appearing in evidence against him there is no warrant that those admissions should altogether be ignored. A bare reading of Sub-section (4) of the Code of Criminal Procedure makes it evident that answer given by the accused during such examination are intended to the considered by the Court. The word "may be taken into consideration in such enquiry or trial" in Sub-section (4) would amount to a legislative guideline for the Court to give due weight to such answers.
20. We hasten to add that we may not be taken to mean that the plea of accused under Section 329, Cr.PC and his answer given during examination under Section 313, Cr.PC could be made sole basis of any finding but they may well be taken into account in deciding whether prosecution evidence can be relied on and whether accused is liable to be convicted of the offence charged against him. If we look to the above circumstances established by the prosecution, alongwith the plea of guilt recorded under Section 329, Cr.PC and the answers given by the appellant during examination under Section 313, Cr.PC, it conclusively, leads to an irresistible conclusion that the appellant and the appellant alone was the preparator of the crime.
21. We are aware that the Court has to be watchful and avoid the danger of allowing the suspicion to take the place of legal proof because sometimes unconsciously it may happen to be a short step between moral certainty and legal proof. We are also aware that more serious the crime the greater should be the care to scrutinise the evidence. On carefully examining the evidence available on record, we find that the circumstances from which we are drawing the conclusion of guilt are fully proved and they alongwith the plea of guilt and answers given in the examination under Section 313, Cr.PC are conclusive to connect the accused with the crime. The established circumstances are consistent with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.
22. For the foregoing reasons, this appeal fails and is accordingly dismissed. The impugned judgment and order of the Trial Court convicting appellant Malkhan under Section 302 of the IPC and sentencing him for imprisonment for life are hereby maintained.