Madhya Pradesh High Court
Swamideen Kol vs The State Of Madhya Pradesh on 29 November, 2018
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. CRA. Nos.1019/2009 & 1390/2009
Parties Name Swamideen Kol & 2 others
vs.
State of Madhya Pradesh
AND
Bhuraiya Choudhary and others
Vs.
State of Madhya Pradesh
Date of Judgment /11/2018
Bench Constituted Justice Sujoy Paul &
Justice (Smt.) Nandita Dubey
Judgment delivered by Justice Sujoy Paul
Whether approved for reporting Yes/No
Name of counsels for parties Mrs. Seema Pandey, learned counsel for the
appellants/Amicus Curiae in Cr. A.
No.1019/2009.
Mrs. Sarita Kanaujia, learned counsel for
the appellants/Amicus Curiae in Cr.A.
No.1390/2009.
Respondent: Shri Mohit Nayak,
Government Advocate
Law laid down -
Significant paragraph numbers -
(JUDGMENT)
.11.2018
As per: Sujoy Paul, J.
These criminal appeals filed under Section 374(2) of the Code of Criminal Procedure, 1973 (in short called as "Cr.P.C.") are directed against the common judgment of conviction dated 30.04.2009 for offences under Section 302/34 read with Section 506-B of IPC in Sessions Trial No.129/2006 and order of sentence to undergo life imprisonment for offence under Section 302/34 IPC and rigorous imprisonment for three
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CRA. Nos. 1019 of 2009 & 1390/2009 years for committing offence under Section 506-B IPC. Both the sentences were directed to run concurrently.
2. Briefly stated, the story of prosecution is that the complainant - Ram Kumar Patel (P.W.-2) was residing in his agricultural field in Gram Jamuna. Complainant - Ram Kumar Patel was residing with his deceased son - Lallan Singh in the said house/"Ahari". On the date of incident i.e. on 25.12.2007 at around 8.00 p.m., Lallan Singh and his parents, after taking dinner, settled in their different rooms of the said "Ahari". Lallan Singh was staying in a room where cattles were kept. At around 11 p.m. to 12 in the night, the complainant after hearing the voice of Lallan Singh, came out of his room and in the moonlight found that appellants were carrying different weapons in their hands and were assaulting his son - Lallan Singh. The complainant shouted for help and in turn, from nearby farm, the appellants - Bhuriya Choudhary, Naresh Choudhary and Swamideen Kol proceeded towards him by carrying weapons by threatening to kill him. The complainant went inside his room and locked the door. He witnessed the incident from the window and kept on shouting for help. In the night, Naresh Choudhury was roaming around with a lathi because of which complainant could not dare to come out of his house. In the morning, he found that his son is dead and various injuries were there in his head and body.
3. The complainant along with a villager -Vashpati Singh Patel went to the Police Station Rampur Baghelan and lodged merg report (Ex.P/3) and FIR (Ex.P/4). On the same date, ASI - Satyabhan Mishra reached to the spot, called the witnesses and in their presence, prepared panchnama of dead body (Ex.P/7), spot map (Ex.P/5) and recovered bloodstained soil, plain soil and piece of wood on which blood was found. The dead body was sent for postmortem. Dr. Sanjay Shukla (P.W.-7) conducted the postmortem on the same date and prepared its report (Ex.P/29). Thereafter the body of the
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CRA. Nos. 1019 of 2009 & 1390/2009 deceased was handed over to the family members by Supurdhgi letter (Ex.P/33).
4. Sub Inspector - Ashok Kumar Mishra (P.W.-11) started investigation and recorded memorandum statements of accused which were marked as Ex.P/10, 12, 14, 16, 18 & 20. As per the prosecution story, through Ex.P-11, P/13, P/15, P/17, P/19 and P/21, the weapons used in attack on deceased were recovered. Thereafter, the appellants were arrested. The cloths of the deceased were seized through Ex.P/9. The weapons were seized through Ex.P/30. In turn, Dr. Sanjay Shukla (P.W.-7) by his report Ex.P/30 opined that the nature of injuries/wounds sustained by the deceased can be caused by use of the said weapons. The seized weapons were sent by Ex.P/34 to FSL Sagar for examination and report (Ex.P/35) was obtained. Lastly, the matter was committed for trial to the Court of competent jurisdiction.
5. The appellants denied the charges in their statements recorded under Section 313 Cr.P.C. and stated that the deceased was not in a fit state of mind. He assaulted certain villagers earlier because of which, members of his caste also assaulted him. About six months before the date of incident aforesaid, the deceased was beaten by the said persons and was thrown in an agriculture field. In view of the innocence pleaded by the appellants, they were put to trial. The Court below framed three issues for determination.
6. After recording the evidence of the parties, the Court below found that the appellants have committed the offences punishable under Section 302 read with 34 and Section 506-B of IPC. Accordingly, they were sentenced to undergo the punishment mentioned in the impugned judgment.
7. Mrs. Seema Pandey and Mrs. Sarita Kanaujia, learned counsel for the appellants/Amicus Curiae in both the appeals assailed the impugned judgment on common grounds. By taking this Court to the statement of complainant (P.W.-2), it is urged that he is father of deceased - Lallan Singh and at the time of incident, he was about 84 years old. The mother of the
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CRA. Nos. 1019 of 2009 & 1390/2009 deceased, as per deposition of Ramkumar (P.W.-2), was unable to hear and witness the incident because of visual/hearing incapacity. The incident had taken place in the late night. As per the statement of P.W.-2, there was no electricity available in his house and, therefore, he had allegedly witnessed the incident in natural light. This is totally unsafe to accept his statement because the distance between his room and place of incident was quite far. In the Court room also, from a distance, he could not identify the witness and could identify him after coming close to him (Para 18 of his deposition).
8. Learned counsel for the appellants contended that P.W.-2/complainant was the star witness of the prosecution. The conviction on the basis of his statement is not safe and it is clearly hazardous. Mother of the deceased was not examined although she deposed her statement under Section 161 Cr.P.C. The FSL Report does not support the case of the prosecution. Entry 3 shows that the conclusion based on Ex. A, C, G, H and J were found to be inconclusive. The seizure was also doubtful. The motive could not be established.
9. It is further urged that the nature of weapons and injury caused by them narrated by P.W.-2 in his statement under Section 161 Cr.P.C. and deposition before the Court are contradictory. To elaborate, it is urged that P.W.-2 in his statement under Section 161 Cr.P.C. stated that certain different weapons were there in the hands of appellants whereas in his main deposition in the Court, the descriptions about the said weapons were different. In view of this contradiction in the statements, it was not proper to hold that the appellants are guilty. It is further urged that the incident had taken place inside the house and there was no question of presence of moonlight. Lastly, it is submitted that P.W.-8 did not support the story of the prosecution. Learned counsel for the appellants admitted that P.W.-8 was declared as hostile.
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CRA. Nos. 1019 of 2009 & 1390/2009
10. Per contra, Shri Mohit Nayak, learned Govt. Advocate supported the impugned judgment. It is urged that the Court below has rightly appreciated the evidence before it. There is no perversity in the finding. The conclusion drawn is in accordance with law which does not warrant interference by this Court.
11. We have heard the learned counsel for the parties at length and perused the record.
12. The appellants have taken pains to contend that the statement of P.W.- 2 is not trustworthy. The contradictions relating to description of weapons being carried by the appellants is one such ground on which truthfulness of the statement was called in question.
13. In 2013 (4) SCC 607 (Subal Ghorai and others Vs. State of West Bengal), the Apex Court held as under:
"In any case, the omissions are minor omissions pertaining to non-mentioning of weapons carried by the accused or not referring to the parts of the bodies of the deceased on which the assault was made. Some of the witnesses have omitted to mention the names of some of the accused. But, in our opinion, on the substratum of the prosecution story, there are no omissions or contradictions. While analysing the evidence, we have kept in mind the manner in which several accused persons armed with weapons attacked the deceased. In an attack of this type, in the nature of things, there are bound to be some omissions or discrepancies in the evidence of witnesses."
[Emphasis Supplied]
14. The ratio decidendi of this case is that when substratum of prosecution story is truthful and supported by evidence, minor contradictions and omissions will not cause any dent to the prosecution story. In the same judgment, it was noticed that the weapons carried by some of the accused could not be specifically named by the witnesses but in relation to some witnesses, such description was given. The Apex Court opined that the said anomaly is inconsequential.
15. In 2014 SCC OnLine Delhi 4917 (Dinesh Kumar @ Kalu Vs. State Govt. of NCT of Delhi), the Division Bench opined as under:
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CRA. Nos. 1019 of 2009 & 1390/2009 As observed by this Court in State of Rajasthanv.Kalki [(1981) 2 SCC 752: 1981 SCC (Cri) 593: AIR 1981 SC 1390] normal discrepancies in evidence are those which are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of occurrence and those are always there, however honest and truthful a witness may be. Material discrepancies are those which are not normal, and not expected of a normal person. Courts have to label the category to which a discrepancy may be categorized. While normal discrepancies do not corrode the credibility of a party's case, material discrepancies do so. Accusations have been established against the accused-appellants in the case at hand."
[Emphasis Supplied]
16. In the light of aforesaid judgments, we are unable to hold that the statement of P.W.-2 is not trustworthy because of said discrepancies in relating to weapons being carried by the appellants.
17. The second ground of attack on the statement of P.W.-2 is that there was inadequate light at the time of incident. The incident took place after 10.00 p.m. Pertinently, the Court below has taken note of this aspect and opined that after 06.37 p.m., on the date of incident, there was complete moon light.
18. In 1998 (9) SCC 238 (Nathuni Yadav Vs. State of Bihar), Supreme Court laid down a principle, gist of which is as under:
Incident took place around midnight on 11.06.1980. On that fateful night, deceased and other members of his family were sleeping on the open terrace of his residential building. It was a moonless night and there was no lamp burning in the vicinity. Assailants were no strangers to the inmates of the tragedy bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the killers. Held, the proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of the stars, and the fact that the murder was committed on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. If the light then available, though meager, was enough for the assailants why should it be thinked that same light was not enough for the injured who would certainly have pointedly focused their eyes on the faces of the intruders standing in front of them. It cannot be assumed that it would not have been possible for victims to see the assailants or that there was possibility for making a wrong identification of killers.
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CRA. Nos. 1019 of 2009 & 1390/2009
19. The Court below in the impugned judgment categorically opined that since appellants were known to P.W.-2, he could identify them by their gesture, posture, physique, body language etc. This finding of Court below is in consonance with the principles laid down in the case of Subal Ghorai (supra). In the said case also, assailants were not strangers to the inmate of tragedy and, therefore, statements of such inmates were found to be trustworthy. Thus this ground of attack also pales into insignificance.\
20. Apart from this, the court below in para-14 has categorically recorded that Ramkumar (P.W.2) could identify accused Ramlal when he was standing in the witness box in a group with other accused. Thus, there is a cogent basis on the strength of which the court below disbelieved the defence that the appellants could not have been identified by the complainant because the incident had taken place in the night.
21. The argument of appellants that non-examination of complainant's wife (mother of the deceased) is fatal has no legal basis. Since in our view the statement of complainant is trustworthy and reliable, non-examination of his wife will not make his statement unreliable. Moreso, the wife of complainant was suffering from physical incapacity because of which, she was not able to hear or see anything. The appellants also argued that the incident had taken place in a room where there existed no window nor moonlight could have any impact in the said area/room. The complainant has described about the incident, nature of assault, place etc. His statement could not be demolished. He described the entire incident with sufficient details and hence this ground also deserves rejection.
22. Satyabhan Mishra (P.W.9) deposed that he had prepared Exhibit-P/28 and sent the body of deceased Lallan Singh for postmortem. His statement is supported by Dhirendra Singh (P.W.10). Dr. Sanjay Shukla (P.W.7), Community Health Center Rampurbaghelan stated that through Ex.P/28, the body of deceased Lallan Singh was brought and it was identified by Rakesh
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CRA. Nos. 1019 of 2009 & 1390/2009 Singh. As per his report, description of injuries found in the body of deceased Lallan Singh are as under :-
"1. Body lying, rigor present, face coated with clotted blood. Wearing brown full shirt and pant coated with blood and mud. Eyes closed.
2. Fracture present in tibia bone of right leg Blood clot with incised wound 2"X 1/2"X bone deep present.
3. Incised wound 1"X1/2"X1/2 below right leg skin present.
4. Incised wound 1"X1/2X1/2" above back side left leg present.
5. Incised wound on mallcolus with clotted blood with faecal matter present around anus.
6. 4"X4" bruise present on anterior part of right arm. Fracture in radius and ulna bone of forearm of the same hand alongwith bruise and blood clot.
7. Bruise present on mid part of left arm. Fracture in radius and ulna bone of forearm of the same hand alongwith bruise.
8. Incised wound 4"X2"Xbone deep present on mid part of skull below which fracture present.
9. On the left side of aforesaid wound, another incised wound 1"X1/2"X bone deep present.
10. Another deep incised wound 3"X1/2"X1/2" on left parietal region of skull.
11. Another incised wound 1"X1/2"X bone deep beside the aforesaid wound on skull.
12. Clotted blood present on hair of skull."
23. Dr. Sanjay Shukla (P.W.7) opined that because of excess bleeding, fracture of major bones, internal haemorrhage and shock, the deceased died
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CRA. Nos. 1019 of 2009 & 1390/2009 within 24 hours from the time of examination conducted by him. He categorically deposed that the nature of injury available on the body of deceased shows that it cannot be sustained if deceased is crushed by the cattle. He further supported the story of prosecution that the weapons seized can cause such injuries which were found in the body of Lallan Singh.
24. The court below did not accept the argument of the appellants that appellant Bhuriya Choudhary as per deposition of Ramkumar Patel (P.W.2) was carrying a country made pistol (katta) whereas in the police report and statement recorded under section 161 Cr.P.C, it was stated that appellant Bhuriya Choudhary was carrying an axe (Kulhadi). The court below rightly held that Ramkumar Patel (P.W.2) was not confronted with the police report and police statement aforesaid. The minor discrepancy about carrying of weapon is inconsequential. We find substance in the findings which was in consonance with the principles laid down in the case of Subal Ghorai (supra).
25. We have also carefully perused the findings of the court below which is based on documentary, medical and oral evidence. Vijay Raj (P.W.5) stated that on the date of incident at around 9 P.M, he found the appellants sitting near the house of deceased. Thus, he supports the story of the prosecution. Ajay Singh (P.W.8) stated that on the next date, he visited the house of complainant and found the dead body of Lallan Singh. Complainant Ramkumar Patel (P.W.2) was weeping and stated that appellants have killed his son and made an effort to kill him also. He could save himself by locking himself in the room.
26. The Investigating Officer, Satyabhan Mishra (P.W.9), Sub Inspector Ashok Kumar Mishra (P.W.11) also produced the material/ weapon used in the incident. The spot-map shows that the distance between the room where Lallan Singh was staying and the room of his father was about 10 feet. In between these rooms, there was no vegetation/tree which could prevent the vision of the complainant. In para-11 of his deposition, Ramkumar (P.W.9)
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CRA. Nos. 1019 of 2009 & 1390/2009 clearly stated about the distance from which the complainant had seen the assault.
27. Ashok Kumar Mishra (P.W.11) produced exhibits whereby weapons used in the incident were recovered from the accused. The court below did not find any material contradiction in the story of the prosecution which can make it unbelievable. Pertinently, as per F.S.L. report, on certain weapons, namely, "Lathi and Tangi" human blood was found. The appellants have not given any justification about this. The court below has rightly relied on the judgment of Supreme court in the case of Meharban Vs. State of U.P.-2002 SCC (Cri) 1600 wherein it was held that if statement of complainant is trustworthy, it can be relied upon and non-examination of any other witness on this aspect will not make any difference.
28. The court below opined that the intention of appellants in murdering Lallan Singh is not clearly established. However, in view of judgment of Supreme Court in Brijpal Singh Vs. State of U.P.-AIR 1994 SC -1624, the court below held that where direct evidence of murder is available, absence of element of intention is not important. At the cost of repetition, it is clear that the appellants jointly attacked deceased Lallan Singh who died because of injuries caused by said attack of the appellants. As per medical report about 25 injuries of different nature were found in the body of deceased Lallan Singh. The intention of appellants in causing bodily injury to the deceased was indeed clear and nature of injury and incident shows that the injury so inflicted was sufficient in the ordinary course of nature to cause death. In this backdrop, finding of court below that it is neither possible nor necessary to decide which wound/injury is caused by which weapon is justifiable. The use of weapon jointly by the appellants is established beyond reasonable doubt. Thus, in our considered opinion, the court below has rightly held that the prosecution has established the charges against the appellants beyond reasonable doubt. No fault can be found in the said
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CRA. Nos. 1019 of 2009 & 1390/2009 findings. Resultantly, both the appeal filed against the common judgment dated 30.04.2009 are dismissed.
(Sujoy Paul) (Smt. Nandita Dubey)
JUDGE JUDGE
Biswal/MKL
Digitally signed by SHIBA
NARAYAN BISWAL
Date: 2018.11.29 16:42:36 +05'30'