Madhya Pradesh High Court
Shiv Kumar @ Maika Pappu vs The State Of Madhya Pradesh on 18 February, 2013
Author: Vimla Jain
Bench: Vimla Jain
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Criminal Appeal No.2363 of 2012
18/02/2013
Shri Uday Singh Chandel, Advocate for appellant.
Shri Umesh Pandey, Government Advocate for the
respondent/ State.
Heard on I.A.No.709/2013, an application for grant of bail
to appellant Shiv Kumar alias Maika alias Pappu Sahu.
This appeal has been filed by the appellant being
aggrieved by the impugned judgment dated 09/10/2012
passed by the Additional Sessions Judge (Fast Track Court),
Maihar District Satna (MP) in Session Trial No. 149/2012,
whereby the appellant has been convicted under Section 302
of Indian Penal Code and sentenced to imprisonment for life
with fine of Rs.1,000/-, in default of fine further R.I. for 6 months.
Brief facts of the case are that on 03/03/2012 at about
6.30 PM, the complainant Shyamkali (PW-1) along with her
sister-in-law Manwati Sahu (deceased) was returning from
Barha Tola. When they reached behind the house of Tulsi Sahu,
accused caught Manwati (deceased) and assaulted her by knife.
The complainant tried to save her, the accused pushed the
complainant and assaulted Manwati (deceased) by knife. As a
result of such assault, Manwati died due to injuries sustained
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during the said assault.
Learned counsel for the appellant submits that deceased
Manwati was a real sister of mother of appellant. The
appellant had no motive to kill the deceased. His father Sokhilal
was living with his step mother and removed his mother from his
home. Appellant's counsel further submits that the prosecution
witnesses clearly stated that appellant's father and step mother
did not want to give his share and there was a property dispute
between them. Therefore, appellant had been falsely implicated
in this case. He further argued that all prosecution witnesses are
closely related to the step mother of appellant. Such witnesses
examined themselves before the Court after being tutored by
their advocate. He also argued that the dead body was shifted
from one place to another and the statement of K.P.Rawat,
Investigation Officer (PW-10) is not reliable.
Learned counsel for the State on the other hand opposes
the submissions of counsel for the appellant and submits that
the appellant was fully involved in the incident. The eyewitness
Shyamkali (PW-1) had supported the prosecution case.
Looking to the facts and circumstances of the case, after
perusal of the evidence on record and the submissions
advanced by the learned counsel of the parties, without
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commenting on the merits of the case, at this stage, we allow
the application and direct that execution of jail sentence of
appellant shall remain suspended during pendency of this
appeal, and he shall be released on bail on his furnishing a
personal bond in the sum of Rs.40,000/- (Forty Thousand
only) with one surety in the like amount to the satisfaction of the
trial Court, for his appearance before the Registry on
26/03/2013 and on such other dates as may be fixed in this
regard.
CC as per rules.
(Rakesh Saksena) (Smt. Vimla Jain)
JUDGE JUDGE
manju
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SMT JUSTICE VIMLA JAIN
CRIMINAL APPEAL No. 852 of 2011
Nemlal s/o Motilal Mehra,
aged 38 years,
R/o village Manikpur,
P.S.- Umaria
District Umaria (MP)
Appellant
Versus
State of Madhya Pradesh
Through Police Station Umaria
District Umaria (MP)
Respondent
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Shri S.C.Datt, Senior Advocate with Shri Siddharth Datt, Advocate for the appellants.
Shri Amit Pandey, Panel Lawyer for the State. Date of hearing : 15/01/2013 Date of judgment: .. /01/2013 (J U D G M E N T ) Per: Vimla Jain, J Heard.
Complainant has filed ths appeal against the judgment dted 30/11/2010 passed by Sessions Judge, Umaria District Umaria in Session Trial No.113/2009 acquiting the
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respondents of the charges under Sections 304-B and 498-A of the Indian Penal Code.
According to prosecution Appellant preferred this appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 09/05/2002 passed by Additional Sessions Judge, Umaria District Umaria in Sessions Trial No.270/2001, whereby the appellant has been convicted and sentenced as under with the direction to run both the jail sentences concurrently:-
Provision Sentence
U/s 302 of IPC Imprisonment for life and fine of
Rs.1,000/-, in default of payment of
fine additional rigorous imprisonment for one year.
U/s 201 of IPC Rigorous imprisonment for two years and fine of Rs.500/-, in default of payment of fine additional rigorous imprisonment for six months.
2. It is not in dispute that Nankuni Bai (deceased) is the wife of accused Nemlal. His first wife had died and from her, he has a son Basantlal. Accused Nemlal, witness Shyamlal, Darachandra and Ramraj are real brothers. They do
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their agricultural activities separately but they live in one house but in different rooms. It is also not disputed that on the date of incident, accused Nemlal, Mitahilal, Shyamlal, Darachandra and Ramraj went to their fields for ploughing.
3. Brief facts of the case are that the first wife of accused Nemlal died before 15 years and her son Basant was living with him and his second wife Nankuni Bai (deceased). There are some controversies between accused Nemlal and deceased Nankuni Bai relating to Basantlal. Due to such controversies, on 30/06/2001, when the deceased was all alone in her home at Manikpur, accused Nemlal by strucking a stone piece (iRFkj dh fly) on her thigh broke down her femur bone. For concealing the evidence of murder, the accused Nemlal wraped the dead body with bedding and poured the kerosene oil over it, set it ablaze in the room itself. By anyhow locking the doors of the room from inside, the accused had pretended that Nankuni Bai (deceased) had committed suicide. Witnesses Dhanesh and Manilal saw some smoke from the house of Nemlal. Dhanesh went to field to inform the incident to appellant Nemlal. After breaking the door of the
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room, the dead body of Nankuni was found in a burnt condition. Thereafter Ramraj (PW-6) gave written information of the incident to the Police Station, Umaria upon which a Marg Intimation was registered by O.D.Tandiya, ASI Umaria.
4. On 01/07/2001, Inspector V.K.Jain (PW-13) reached the spot and prepared the inquest panchnama (Ex.P/3) and spot map (Ex.P/6). After due investigation, he registered a FIR (Ex.P/16) against the accused/appellant. By recovering plain and burnt earth and pieces of bone of deceased Nankuni Bai, the seizure memo was prepared vide (Ex.P/14). He also seized SILL and BATTA (piece of stone), PLASTIC CONTAINOR with smell of kerosene, MATCH BOX and LALTEN. He prepared seizure memo Ex.P/5. The seized articles were sent to Forensic Science Laboratory for analysis. The dead body of deceased Nankuni Bai was sent for postmortem for which an application Ex.P/11 was written and some queries were asked by Ex.P/12. Dr. Chandrabhusan Rohitas conducted the Postmortem of deceased Nankuni vide Ex.P/11 and the answered the queries by Ex.P/13.
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5. Dr. S.P.Singh, FSL Mobile Unit, after investigation of the spot, filed enquiry report. After investigation, charge sheet was filed under Sections 302 and 201 of IPC against the appellant before the Court of Chief Judicial Magistrate, Umaira, Who committed the case to the Court of Sessions which was ultimately transferred to the learned Additional Sessions Judge. On being charged with the offence under the said sections, the appellants/accused pleaded not guilty and complete innocence and stated that on the date of incident, he went to field for ploughing early in the morning and claimed to be tried with the prayer that he had been falsely implicated in the case.
6. In order to bring home the charges against the appellant, the prosecution examined thirteen witnesses and proved the documents (Ex.P/1 to P/15). The appellant examined only one witness in his defence.
7. The learned Court below, after scanning the evidence, found the charges proved against the appellant, convicted and sentenced him as hereinabove stated. The conviction is based on circumstantial evidence only.
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8. This appeal has been filed by the appellant assailing the said judgment of conviction and order of sentence.
9. Learned counsel for the appellant has urged that the Court below has erred in convicting the appellant, even though there is no evidence against him. He also submitted that the parameters laid down by the Apex Court for deciding such a case of circumstantial evidence have not been applied. Thus the judgment of conviction passed by the Court below is liable to be set aside.
10. On the other hand, learned Government Advocate for the State has supported the finding of the trial Court, contending that there is no justification for this Court to interfere with the findings of fact that had been recorded by the Court below. Of course, the present case is one of circumstantial evidence, but with respect to the same, the chain of events is complete, and every link thereof, is a pointer towards the guilt of the appellant. The appellant has failed to furnish any explanation in relation to the incriminating circumstances against him, He further submitted that the present appeal, thus, lacks merit and is
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liable to be dismissed.
11. The Apex Court in C.Chenga Reddy and others Vs. State of A.P. (1996) 10 SCC 193, observed that :-
"In a case based on circumstantial evidence, the settled law is that the circumstances from which the conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.......".
12. We have considered the arguments advanced by learned counsel for the parties and perused the record.
13. PW.11 Dr. Chandrabhushan Rohitas conducted the postmortem of deceased Nankuni Bai on 01/07/2001 vide Ex.P/11. He stated in his statement that the dead body lying on her back burnt fully, blackening is present. Scalp hairs are burnt and singed eye brows are burnt, eyes closed, tongue protruded. Left thigh swollen and shortened. Pubic hairs are burnt. Both tibial bones are exposed. Char is seen on both flanks and adjacent
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part of the chest and thighs and legs. Rigor mortis present. Kerosene oil smell from clothes adhered to the body (abdomen). Line of redness is absent. Upper part of the femur on the left side is also exposed. Pugilistic appearance seen. In his opinion, caused of death is asphyxia due to obstruction of air passage. Burn is post mortem, time lapsed, since death is within 24 hours.
14. Shri V.K.Jain (PW -13) Inspector Police Station Umaria has written in inquest panchnama (Ex.P/3) that left leg of deceased was broken. Although, more of the panch witnesses namely Vrindavan (PW -4), Ramsajeevan (PW -5), Munilal (PW -7) and Pyaribai (PW -9) came forward to support the respective version yet, but at the same time they admitted their signatures on the inquest panchaama (Ex.P/3) in absenc of any cogent reason for his interest, evidence of V.K.Jain (PW -13) inspector of Police Station Umaria, was sufficient to prove the factum of injury of deceased.
15. On query, Dr. Chandrabhushan Rohitas (PW-11)
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replied that when deceased was alive, she got injury of femur bone and her femur bone broke into three piece. In his opinion injury of left leg of deceased was ante mortem in nature. He further opined that corbon particles not seen in her lungs. He clearly stated that her death was homicidal in nature. We find that the opinion of autopsy surgeons is unassailable and is acceptable. It was, thus clearly evident that deceased Nankuni bai was died of homicidal injuries.
16. There is no dispute that the deceased was a second wife of the appellant /accused and she was living with appellant and his first wife's son Basant Kumat (PW-10). Dhanesh (PW-8) stated that he has come from his field and took meals. Then few boys of Nemlal's house came and stated that there was fire in the house. He went and saw rooms of Nemlal on fire. Room was closed from inside. He had tried to open the room by his leg but could not succeed. Then he had brought stairs and went up on the tiles of roof. He removed tiles of the roof and saw fire in side the room. Nankuni Bai was burning. He went to field of appellant and informed the incident.
17. Rampratap Singh (PW-1) stated in his cross-examination that there is only one door and no window in the room wherein
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the incident took place. The door was closed from in side by HATAKA of wood. The door could not be opened from out side. The roof is of tiles. He clearly stated that he did not find any hole for entrance and exit from the room, from the side of roof at the time of preparation of map. Therefore, the trial Court rightly concluded that before investigation by the police, appellant and his family members properly set the tiles on roof to suppress the evidence of entry in to the room from the side of room. In these circumstances it is found that appellant easily removed tiles of roof and enter the house after exit from room he could properly set the tiles on roof.
18. Mithailal (PW-2), Darachandra (PW-3), Ramraj (PW-6) are brothers of appellant/accused and Basant Kumar (PW-10) is his son. They deposed that on the day of the incident, appellant had gone to his field. They were also in their field. They further stated that appellant stayed in his field from morning to evening. He did not go to his house to take food. These witnesses are closely related to the appellant. Therefore, naturally they went to save appellant. They are fully interested in appellant/accused. In these circumstances, these witnesses are not reliable. In the absence of independent
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witness it could not be proved that appellant had not come to his house in between morning to evening.
19. The incident occurred on 30/06/2001 at 5 PM. Ramraj (PW-6) who is the brother of appellant gave the information of the incident (Ex.P/14) to the police on the next day at 11.15 AM. There is 18 hours gap between the time of occurrence. He intimated that "ukudquh dejs ds vanj gS vkSj vkx yxkdj ty xbZ gS njoktk vanj ls can gS BkB dkVdj ns[ks gSA jtkbZ xn~nk vius Åij yisV dj vkx yxkbZ xbZ gSA " and registration of the merge intimation therefore the story mentioned in merge intimation was unbelievable. Shri VK.Jain (PW-13) Inspector prepared inquest panchnama (Ex.P/3) and seizure memo (Ex.P/5). He had written in (Ex.P/3) that deceased Nankuni Bai had been burned brutally. Hair of her back head and quilt of her back side could not be bunt. Dr. Chandrabhushan Rohitas (PW-11) clearly stated that smell of kerosene oil was found on the clothes of deceased. He further stated that injury of left leg of deceased was ante mortem in nature the cause of death is asphyxia due to obstruction of air passage. He had not found any soot or carbon particle in any portion of the breathing system. These circumstances clearly established and beyond
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doubt that appellant /accused firstly inflicted injury by sill (piece of stone) on her leg. Then he strangulated her neck and after that he fired her body. Thereafter, he is guilty of offence of murder punishable under Section 302 of IPC and the conviction is confirmed.
20. At the time of investigation it came out that there was quarrel between appellant/accused and deceased due to his firs wife's son Basant Kumar. But this fact is no proved by the prosecution. All witnesses were hostile. What was the immediate motive of the incident we do not know. The Appellant or deceased could know about it. The deceased is no more before us to tell the story. Thus, we find that the accused had been rightly held guilty of murder of his wife.
21. The other question is whether he had rightly been convicted for offence under Section 201 of IPC. Section 201 of IPC defines the offence of giving false information to screen the offender or causing disappearance of evidence. In this case, we have found that appellant/ accused after committing offence properly set the tiles on roof to suppress the evidence of entry in to the room from the side of roof. Thus he misled the police to screen himself. This was an offence punishable under
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Section 201 of IPC. So he was also rightly convicted for the offence under Section 201 of IPC.
22. In view of the above discussion, the conviction of the appellant on both the Counts by the trial Court is confirmed. The sentence of life imprisonment for sections 302 of IPC is the minimum sentence and sentence of RI for two years under section 201 of IPC is also not excessive in this case. In any case it will run concurrently with the other sentence, so the sentence is also confirmed. The appeal having no merits and is, accordingly, dismissed.
(RAKESH SAKSENA) (SMT VIMLA JAIN)
JUDGE JUDGE
manju
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HIGH COURT OF MADHYA PRADESH AT JABALPUR DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA HON'BLE SMT JUSTICE VIMLA JAIN CRIMINAL APPEAL No. 1664/2002 Komal alias Komal Singh Kirar & Others Versus State of Madhya Pradesh (J U D G M E N T ) Judgment for consideration (Rakesh Saksena) Judge (SMT.VIMLA JAIN) JUDGE /1/2013
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It is not in dispute that Dhaniram Kirar (deceased) and all accused persons belong to the same village. The accused persons are the members of one family. Accused Komal, Raju alias Langda, Mattu alias Mahesh and Lachhi alias Lachhiram are brothers whereas Gullu alias Gulab is their father.
3. Brief facts of the case are that on 20.10.2000 at about 11:30 am in village Imaliya (Kadheli), Dhaniram Kirar (deceased) was standing near his house and abusing in filthy language. Accused Gulab armed with TABAL, Mattu alias Mahesh armed with KATARNA, Raju alias Langda armed with axe, Lachhi alias Lachhiram armed with SABBAL and Komal armed with sword surrounded Dhaniram, assaulted him and caused injuries on his head and various parts of his body. As a result of such injuries, Dhaniram died on the spot. During the MARPEET, when Maltibai and Baribai, wife and mother of deceased Dhaniram came to intervene, accused Kerabai and Gauribai pelted stones on them
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from their house and caused injuries to Baribai. The reason of MARPEET being that six months' prior to this incident, son of accused Gulab died due to electric current and accused persons suspected that deceased Dhaniram might have given electric current to his son. Ashok Kumar Patel gave the information of the incident to the Police Station, Tendukheda upon which Rojnamcha Sanha No. 670 was registered on 20.10.2000 at about 11:30 and on the telephonic information, the Town Inspector alongwith staff proceeded towards the spot. W hen Ram Prasad, cousin of deceased Dhaniram was going towards Police Station Tendukheda to lodge the report, on the way near village Ishwarpur, he met the Police Party and lodged the report there itself, which was reduced in writing as Dehati Nalishi vide Ex.P/3 at about 1:15 in the afternoon. On the basis of the report, Marg Intimation (Ex.P/4) was prepared.