Madhya Pradesh High Court
Suraj Kaurav vs The State Of Madhya Pradesh on 16 February, 2023
Author: Sujoy Paul
Bench: Sujoy Paul
1 IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 895 of 2023 (SURAJ KAURAV AND OTHERS Vs THE STATE OF MADHYA PRADESH) Dated : 16-02-2023 Shri Manish Datt - Senior Counsel with Shri Bhupendra Kaurav -
Advocate for appellant nos. 1 and 2.
Shri Akhilendra Singh - Government Advocate for the State of M.P. Shri Saurabh Bhushan Shrivastava - Advocate for the objector.
Heard on I.A. No.1043/2023 an application under Section 389(1) of the Cr.P.C for suspension of sentence and grant of bail to the appellant no. 1- Suraj Kaurav and appellant no.2 Bhagirath Kaurav arising out of judgment dated 29.12.2022 delivered in S.T. No.330/2014 by the First Additional Sessions Judge, Gadarwara, district Narsinghpur, (M.P.).
The appellant no.1 has been convicted under Section 148 of IPC and sentenced to undergo RI for one year and fine of Rs.1000/-, under Section 323/149 of IPC and sentenced to undergo RI for three months and fine of Rs.1000/-, under Section 325/149 of IPC to undergo RI for one year and fine of Rs.1000/- and under Section 302/149 of IPC and sentenced to undergo RI for Life and fine of Rs.5000/- with default stipulation.
T he appellant no.2 has been convicted under Section 148 of IPC and sentenced to undergo RI for one year and fine of Rs.1000/-, under Section 323/149 of IPC and sentenced to undergo RI for three months and fine of Rs.1000/-, under Section 325/149 of IPC to undergo RI for one year and fine of Rs.1000/- and under Section 302/149 of IPC to undergo RI for Life and fine of Rs.5000/- with default stipulation.
As per prosecution story on 26.8.2014 Manoj Sharma (deceased) was Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/17/2023 1:14:50 PM 2 assaulted by Brijraj Singh Kaurav, Laxman, Shri Om Kaurav and Deepak Kaurav. The injured Manoj Sharma himself lodged the FIR (Ex.P-4) on 26.8.2014. His case diary statement under Section 161 of Cr.P.C. were also recorded. After the MLC, he was taken to City Hospital, Jabalpur and from there he was taken to and admitted in Apollo Hospital, Hydrabad. Manoj Sharma died on 15.9.2014.
Shri Manish Datt learned Senior Counsel for the appellant nos. 1 and 2 submits that for the time being, the FIR and the case diary statement of Manoj Sharma can be treated as 'dying declaration'. In both the said documents, the names of appellant nos. 1 and 2 do not find place. The foremost requirement for the court below was to first ascertain whether cause of death is 'homicidal' in nature or not. For this purpose, reliance is placed on (2010) 15 SCC 588 (Madho Singh Vs. State of Rajasthan) and a recent judgment in Chandrapal v. State of M.P., 2022 SCC OnLine SC 705.
It is submitted that there is no finding by any expert regarding 'homicidal' death of Manoj Sharma. To elaborate, the statement of Dr. Asma Nilophar (PW-20) was relied upon, who deposed that when Manoj Sharma was examined in Apollo Hospital, his total bilirubin and direct bilirubin, S.G.P.T. and S.G.O.T., creatinine and potassium were alarmingly on the higher side, however, she could not narrate the name of the ailment.
Dr. A. Ravindra Babu (PW-22) entered the witness box and deposed that cause of death of Manoj Sharma is chronic lever failure and because of left leg cellulitis. PM report (Ex.P-25) reflects the cause of death as deep jaundice and septicemia because of which there was a hepatorenal failure. For this purpose, the statement of Dr. S.C. Yadav (P.W.12), who conducted the autopsy was Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/17/2023 1:14:50 PM 3 also referred wherein he categorically stated that the injuries found on the person of the deceased were simple in nature a fracture was found and reason of death is deep jaundice. Thus, in absence of any specific finding about the nature of death as 'homicidal', question of attracting Section 302 of IPC does not arise.
Shri Datt learned Senior Counsel submits that Manoj Sharma died on 15.9.2014. On 16.9.2014 for the first time, his brother Ashutosh Sharma lodged a report (Ex.P-5) wherein the names of present appellants were taken for the first time. This report (Ex.P-5) is followed by the case diary statement of PW-3, PW-4 and PW-5. PW-3 and PW-5 are real brothers of deceased, whereas PW- 4 is a nephew. Statements of these witnesses were recorded on 17.9.2014 and 19.9.2014 after considerable long time from the date of incident. During the cross-examination of Shri U.K. Tiwari (PW-19) (Investigating Officer), he clearly admitted that PW-3, PW-4 and PW-5 never turned up before him to disclose the role and overt act of the present appellants regarding the assault in question. By placing reliance on Harbeer Singh v. Sheeshpal, (2016) 16 SCC 418), it is urged that in absence of satisfactory explanation of belatedly recording the statements under Section 161 of Cr.P.C., the statements have lost much of their shine and cannot became a reason to convict the appellants. To sup up, Shri Datt argued that names of present appellants were not there in the FIR and the case diary statement of deceased which must be treated as 'dying declarations'. The cause of death is not proved to be 'homicidal' in nature. Delay in recording the case diary statement of PW-3, PW-4 and PW-5 is not properly explained. The court below has not considered these aspects in proper perspective. The appellant nos. 1 and 2 were on bail during trial and did not misuse the liberty. Final hearing of this appeal will take time and, therefore, Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/17/2023 1:14:50 PM 4 remaining jail sentence of appellant nos. 1 and 2 may be suspended.
Sounding a contra note, learned Government Counsel opposed the prayer and read certain paragraphs of the impugned judgment and referred to his objection.
Shri S.B. Shrivastava, learned counsel for the Objector followed the same line of arguments.
In the case of Chandrapal (supra) it was held as under:-
"8. It is also needless to reiterate that for the purpose of proving the charge for the offence under Section 302, the prosecution must establish œ"homicidal death" as a primary fact. In order to convict an accused under Section 302, the court is required to first see as to whether the prosecution has proved the factum of homicidal death. So far as the facts of present case are concerned, the evidence of PW-13 Dr. R.K. Singh, who had carried out the post-mortem of the deceased Brinda and Kanhaiya, would be most relevant in this regard. He had stated in his deposition before the court, inter alia, that on 12.12.1994, he had carried out the post-mortem of Kumari Brinda, daughter of Bhagirathi, and of Kanhaiya alias Chandrashekhar Gaur. The dead bodies of both the deceased were in decomposed state. He had further stated that the knot mark present on the neck of the deceased Brinda was ante-mortem, and that the cause of death appeared to be Asphyxia due to hanging. The death had taken place within 8 to 10 days and the nature of death was Suicidal. The said Doctor had stated similar facts for Kanhaiya that the dead body of Kanhaiya was found bent towards left side from his neck and a ligature mark having size 10x5 was present on the neck. The cause of death appeared to be Asphyxia due to hanging and the death appeared to have taken place within 8 to 10 days. He had further stated that there was neither fracture found on the dead bodies of t h e deceased, nor any blood clots were found, nor any injuries were found, and therefore he had opined that the cause of death was hanging which normally is found in case of suicide. He specifically stated that as the dead bodies were decomposed, he could not express any opinion whether it Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/17/2023 1:14:50 PM 5 was a homicidal death. In the cross-examination by the learned counsel for the accused, he had categorically admitted that he did not find any symptom of homicidal death, nor he had opined in his report given on 12.12.1994 that the deaths of the deceased were homicidal. Of course, he had stated that on the basis of the report submitted on 30.04.1995, an inference could be drawn that the deaths could be homicidal deaths.
9. It is worth noting that the High Court in the impugned judgment has not considered at all the evidence of Dr. R.K. Singh to come to the conclusion whether the deaths were homicidal deaths, before confirming the conviction of the appellant for the offence under Section 302 IPC. Unfortunately, the Sessions Court also in para 23 of its judgment observed that the statement of Dr. R.K. Singh was not important because he had expressed an opinion which was neither beneficial to the prosecution nor to the defence. In our opinion, when the case of the prosecution rested on circumstantial evidence, it was imperative for the prosecution to prove beyond reasonable doubt that the deaths of the deceased were homicidal deaths and not suicidal, more particularly when the line of defence of the accused was that the Brinda and Kanhaiya had committed suicide, and when Dr. R.K. Singh who had carried out their post-mortems had also opined that the nature of their deaths was Suicidal."
(Emphasis supplied) Considering the aforesaid factual backdrop a case is made out for suspension of sentence. Thus, without expressing any conclusive opinion on merits, we deem it proper to suspend the remaining jail sentence of the appellant no. 1- Suraj Kaurav and appellant no.2 Bhagirath Kaurav. Accordingly, I.A. No.1043/2023 is allowed.
Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of appellant no. 1- Suraj Kaurav and appellant no.2 Bhagirath Kaurav is hereby suspended and it is directed that the appellant no. 1 and 2 be released on bail on their furnishing a personal bond for a sum of Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/17/2023 1:14:50 PM 6 Rs.30,000/- (Rupees Thirty Thousand only) each with one solvent surety of the like amount to the satisfaction of the trial Court with a further direction to appear before the trial Court, Gadarwara, District Narsinghpur on 8th of May 2023 and also on such other dates as may be fixed by the trial Court in this regard during the pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (AMAR NATH (KESHARWANI))
JUDGE JUDGE
bks
Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 2/17/2023
1:14:50 PM