Madhya Pradesh High Court
Dinesh Shukla vs The State Of M.P. on 6 October, 2015
Author: N.K. Gupta
Bench: N.K. Gupta
HIGH COURT OF MADHYA PRADESH AT JABALPUR
Criminal Appeal No. 1773/2004
Dinesh Shukla
Vs.
State of Madhya Pradesh
PRESENT : Hon'ble Shri Justice Shantanu Kemkar &
Hon'ble Shri Justice N.K. Gupta
Shri Amit Dubey, Advocate for the appellant.
Shri Pradeep Singh, Government Advocate for the
respondent/State.
JUDGMENT
(Delivered on the day of October, 2015) Per : N.K. Gupta, J.
1) The appellant has preferred the present appeal being aggrieved with the judgment dated 6.10.2004 passed by Second Additional Sessions Judge, Rewa in Sessions Trial No. 239/2002 whereby the appellant has been convicted of the offence under Section 302 of the IPC and sentenced to Life Imprisonment with fine of Rs.1000/- and R.I. for three months in default of payment of fine.
(2) Criminal Appeal No. 1773/2004
2) The prosecution's case, in short, is that deceased Ramsiya and appellant Dinesh were the residents of village Rahat (Police Station Chorhata, District Rewa). Deceased Ramsiya had some family dispute relating to landed property with accused Rajua and Nathua. On 18.8.2001, deceased Ramsiya along with his wife Kalawati (PW-1) and daughter Munni Bai (PW-6) went to his fields for weeding of the field. At about 6:00 PM when Ramsiya along with his wife and daughter was coming towards his house, near the field of Bhaiya Lal Shukla, the appellant and his co-accused Rajua and Nathua surrounded him. The accused persons were armed with sticks. Initially, the appellant gave blow of stick on the head of deceased Ramsiya and thereafter the accused persons assaulted him brutally with sticks. Kalawati and Munni Bai had tried to save Ramsiya, they also shouted for help, ultimately Bhailal Nut (PW-2), the son of deceased Ramsiya and other witnesses like Munna Lal (PW-10), Bhola (PW-4) and Shobhi Lal (PW-7) rushed to the spot but till then the accused persons had left the spot. Bhai Lal etc. had arranged for a vehicle and (3) Criminal Appeal No. 1773/2004 deceased Ramsiya was immediately taken to the Government Hospital, Rewa, however, Dr. Atul Singh (PW-13) found him dead and, therefore, his dead body was kept in mortuary of the hospital and referred for post mortem. Dr. S.K. Pathak (PW-9) performed post mortem on the body of deceased Ramsiya at G.M.H. Hospital, Rewa and gave his report Ex.P-19. He found as many as 8 injuries on the body. Mainly, injuries were caused on arms, legs, chest and head. On opening of the body, occipital bone of the head was found broken and blood clot was found deposited on the back of the brain. His 8 th and 9th right ribs were found broken and right lung was injured. His spleen as well as liver were found ruptured. Radius as well as ulna bone of right arm were found fractured. Similarly tibia bone of left leg was found fractured. The deceased died due to injuries caused on his head, chest and abdomen. After due investigation, a charge sheet was initially filed against accused Rajua @ Ramvishwas and Nathua @ Umakant. In that charge sheet, the appellant was shown to be absconding. Thereafter, the appellant could be arrested on 29.11.2002 (4) Criminal Appeal No. 1773/2004 in compliance of a perpetual arrest warrant. He was produced before the trial Court and a supplementary charge sheet was filed. It was found by the trial Court that in S.T. No. 192/2001, the trial was approximately completed against other co-accused persons. Only one prosecution witness was remained for examination and, therefore, a separate case was registered against the appellant.
3) The appellant abjured his guilt. He took a plea that he had no enmity with the deceased. Actually one Dayanand had assaulted the appellant and in trial of that case Dayanand was convicted and sentenced. Hence due to instigation of Dayanand, a false case was prepared against the appellant. He also took a plea that at the time of incident, he was at village Barakathar. In defence Luvkush (DW-1) and Sobhnath (DW-2) were examined to prove that the appellant was not present at the spot when the incident took place and he was falsely implicated due to instigation of Dayanand. Sharda Prasad Dahiya (DW-3) was also examined to show that the appellant was present (5) Criminal Appeal No. 1773/2004 in his house at village Kathar on the date of incident and he did not participate in the incident.
4) After examining the evidence adduced by the parties, Second Additional Sessions Judge, Rewa has convicted and sentenced the appellant as mentioned above.
5) Appellant Dinesh Shukla has moved Criminal Appeal No.2271/2014 before the Apex Court for grant of bail and suspension of execution of jail sentence. Vide order dated 17.10.2014, the Apex Court has passed an order, which is reproduced as under :-
"We......allow this appeal but only in part and to the extent that the appellant shall be enlarged on bail on his furnishing bail bonds in a sum of Rs.20,000/- with two sureties in the like amount to the satisfaction of the Trial Court. Upon expiry of the period of six months, the appellant shall surrender back to custody unless of course in the intervening period the appeal itself is taken up for hearing by the High Court and an order favourable to the appellant passed in the same.
We request the High Court to make an endeavour to take up the matter for final hearing at an early date as far as possible within a period of six months from today."
(6) Criminal Appeal No. 1773/2004 Hence, the present appeal has been heard out of turn accordingly.
6) We have heard the learned counsel for the parties at length.
7) In the present case there are eye witnesses and according to the plea raised by the appellant, their testimony is to be examined in relation with the overt act of the appellant. The first point for discussion is as to whether the death of deceased Ramsiya was homicidal in nature or not. According to the witnesses Kalawati (PW-1) and Munni Bai (PW-6), the appellant along with other co-
accused persons assaulted deceased Ramsiya with sticks. Dr. Atul Singh (PW-13) examined deceased Ramsiya on 18.8.2001 and found that he was brought dead, therefore, dead body of the deceased was referred for post mortem. Dr. S.K.Pathak (PW-9) performed post mortem on the body of the deceased and gave his report Ex.P-19. Dr. S.K.Pathak (PW-9) found as many as 8 external injuries on the body of the deceased. He found injuries on right ribs, left arm, right forearm (at two places), right chest, left leg (at two places) and on the back of the skull. All (7) Criminal Appeal No. 1773/2004 such injuries were found to be caused by hard and blunt object. On opening, occipital bone of the deceased was found broken and blood clot was deposited on back of the brain. 8th and 9th right ribs of the deceased were found broken and right lung was swollen on its lower part. His liver and spleen were found ruptured. In right arm both bones (radius and ulna) were found broken. Right humerus bone was also found broken. In left leg tibia bone was found broken and according to Dr. S.K.Pathak, the deceased died due to injuries caused on his chest, abdomen and head. He also found that death of the deceased was homicidal in nature. Such injuries could not be caused by the deceased himself or such injuries could not be caused due to any accident. Hence there is no reason to discard the opinion of Dr.S.K.Pathak. It is duly proved that death of deceased Ramsiya was homicidal in nature.
8) Eye witnesses Kalawati (PW-1) and Munni Bai (PW-
6) have stated that the appellant was the person who gave first blow on the head of deceased Ramsiya and thereafter other co-accused persons had assaulted him.
(8) Criminal Appeal No. 1773/2004 These witnesses have stated that in the morning, they went to the fields along with deceased Ramsiya for weeding of the field, when they were coming back, Ramsiya was few steps ahead and Kalawati was following him. Munni Bai was behind Kalawati and suddenly the appellant and his companions started assaulting deceased Ramsiya. The testimony of the witnesses is duly corroborated by a timely lodged FIR Ex.P-1, which was lodged within 2:30 hours of the incident whereas the Police Station was 20 Kms. Away from the spot. According to witness Bhailal Nut (PW-2), he went to the spot after hearing cries of his mother and sister and thereafter he arranged for a vehicle to take injured Ramsiya to the hospital. When he was taken to the hospital, he was found dead and thereafter FIR Ex.P-1 was lodged by Kalawati at Police Station Chorhata. Hence the time consumed while arrangement of vehicle and to take injured Ramsiya to the hospital, therefore, it cannot be said that the FIR was lodged with delay, hence the testimony of witnesses Kalawati and Munni Bai is corroborated by FIR Ex.P-1. Also Kalawati and Munni Bai (9) Criminal Appeal No. 1773/2004 have stated about the injuries caused by the accused persons and the injuries were found on the same place of the body of deceased Ramsiya by Dr. S.K.Pathak (PW-9) in his post mortem report. Hence the testimony of eye witnesses is duly corroborated by post mortem report Ex.P-19 proved by Dr.S.K.Pathak.
9) The appellant took two different pleas to disbelieve witnesses Kalawati and Munni Bai. According to him, he had enmity with one Dayanand, who was close relative to witness Kalawati and since Dayanand was convicted for his act of assault caused upon the appellant, he had instigated complainant Kalawati to implicate the appellant falsely and consequently he was implicated. In defence, Luvkush (DW-1) was examined to show that he was the driver of the vehicle on which deceased Ramsiya was taken by Kalawati and others and at Police Station Kalawati told that she did not see any of the culprits but due to instigation of Dayanand, the name of the accused persons were mentioned in FIR Ex.P-1. However, it is established that Luvkush was a driver on the vehicle of one Anil Shukla and he has accepted that he was relative (10) Criminal Appeal No. 1773/2004 of accused Rajua and Nathua. Though he went along with Kalawati to Police Station Chorhata but he did not inform the Police that the witnesses did not see any of the culprit. Luvkush has also accepted that Panchayat Nama Lash (memo relating to position of the dead body) Ex.P-3 was prepared before him and he had an opportunity to tell the truth to the Police, however, he did not inform the Police about the situation and he came forward before the trial Court and told such a fact for the first time on 1.7.2004 i.e. after three years of the incident. Looking to silence of witness Luvkush for three years, his testimony cannot be believed. Possibility cannot be ruled out that being relative of the accused persons, he tried to save appellant Dinesh.
10) Second defence taken by appellant Dinesh is that he had no enmity with deceased Ramsiya and it was not possible for him to do such an act. He was falsely implicated due to instigation of Dayanand. However, various questions were asked in that context to witness Kalawati (PW-1), Munni Bai (PW-6) and Bhailal (PW-2). It could not be proved that appellant Dinesh had good (11) Criminal Appeal No. 1773/2004 relations with deceased Ramsiya or his family members. The appellant was also residing in the same locality. The learned Government Advocate has submitted on this count that if the appellant was falsely implicated in the matter, he would not have remained absconding for entire one year. On the contrary, he could request the witnesses that he was falsely implicated in the matter. However, if evidence of Kalawati, Munni Bai and Bhailal is examined, then it would be apparent that Dayanand was not closely related to either deceased Ramsiya or his family members. It could not be established by the appellant that Dayanand accompanied witness Kalawati when she went to Police Station to lodge the FIR. A suggestion was given to witness Bhailal that Dayanand accompanied witnesses Kalawati and Bhailal, when they were taking injured Ramsiya to the hospital and Police Station, but in Para-16 Bhailal has clearly mentioned that initially Dayanand went with him in the vehicle but on the way he got down at his house. Hence when it is not proved that Dayanand accompanied the witnesses, specially complainant Kalawati when she went to lodge (12) Criminal Appeal No. 1773/2004 the FIR then it cannot be said that the FIR was lodged due to instigation of Dayanand.
11) Enmity is a double edged weapon. Due to enmity someone can falsely implicate his enemy or enemy may assault his enemy on the basis of enmity. If the appellant knew that Dayanand was a relative of deceased Ramsiya then due to enmity with Dayanand, he could participate in assaulting the deceased Ramsiya. However, Kalawati and Munni Bai did not accept that deceased Ramsiya had any direct enmity with appellant Dinesh but they have clearly stated that appellant Dinesh had a friendship with his co- accused Rajua and Nathua and, therefore, due to his friendship, he could participate in the crime. It is true that appellant Dinesh did not have any direct motive to kill the deceased Ramsiya but it is settled view of the Apex Court that in a case of murder, there is no need to prove the motive. If motive is proved then it may be considered as an additional circumstance and if it is proved that there was no motive at all then it may have some negative effect over the circumstantial evidence.
Present case is not solely dependent upon the
(13) Criminal Appeal No. 1773/2004
circumstantial evidence, it depends upon the testimony of eye witnesses and, therefore, in absence of motive, appellant Dinesh cannot get any advantage in the case.
12) Appellant Dinesh also took a plea that on the date of the incident, he went to village Kathar for participating in a Pooja (spiritual function) at the house of Sharda Prasad Dahiya (DW-3). After three years of the incident, the appellant could get such a witness examined before the trial Court to prove his alibi but plea of alibi should be proved with such a confirmation that there should not be any possibility of his presence at the spot at the time of the incident. Sharda Prasad Dahiya (DW-3) has stated that on the date of incident Ramayan Path started at about 8 to 8:30 AM for 24 hours and the appellant remained present in that programme for all the 24 hours. There was no documentary evidence shown by Sharda Prasad Dahiya (DW-3) that such a programme was arranged in his house on that particular day on which the incident took place. Such type of plea informed by Sharda Prasad Dahiya (DW-3) does not give any advantage to the appellant, specifically when it could not be proved that (14) Criminal Appeal No. 1773/2004 such function was arranged at the house of Sharda Prasad Dahiya (DW-3). Witness Sharda Prasad Dahiya could not show his relationship with the appellant so that it was necessary for the appellant to stay in the programme for all the 24 hours. It was not stated by Sharda Prasad Dahiya (DW-3) that programme was arranged by appellant Dinesh or his presence was most essential. No relation of the appellant could be proved by Sharda Prasad Dahiya (DW-3) with him and, therefore, if any programme was arranged at the house of Sharda Prasad Dahiya, then it cannot be said that the appellant would have attended that programme for all the 24 hours. Hence the evidence given by Sharda Prasad Dahiya (DW-
3) is not believable to accept the plea of alibi taken by the appellant.
13) Learned counsel for the appellant has submitted that if plea of alibi of the appellant could not be proved then no adverse inference will be drawn against the appellant. In this connection, learned counsel for the appellant has placed reliance upon the judgment passed by the Apex Court in case of "Sunil Kundu and (15) Criminal Appeal No. 1773/2004 another Vs. State of Jharkhand"- [(2013) 4 SCC 422], in which it is held that the prosecution cannot draw support from the weakness of case of accused if prosecution has not proved its case beyond reasonable doubt. It is true that if the accused could not prove his plea of alibi then still the evidence of prosecution should be examined on its own merits.
14) If again the evidence of prosecution is examined then eye witness Kalawati (PW-1) and Munni Bai (PW-6) have stated about the incident. The witnesses who went to the spot soon after the incident have clearly accepted that Kalawati and Munni Bai were present with injured Ramsiya and on their shouting, the other witnesses reached to the spot. Bhailal Nut (PW-2), Bhola PW-4), Shobhi Lal (PW-7) and Munna Lal (PW-10) have accepted that when they reached to the spot they found Kalawati and Munni Bai present at the spot and except Bhola Singh (PW-4), these witnesses have stated that Kalawati and Munni Bai had categorically named the appellant and other co-accused persons that they assaulted deceased Ramsiya. Bhola Singh (PW-4), who turned hostile, has (16) Criminal Appeal No. 1773/2004 stated that Kalawati and Munni Bai were crying with the words that deceased Ramsiya was killed by enemies, however when he was contradicted with his case diary statement Ex.P-14, he could not say as to why he named the appellant and other accused persons in his case diary statement. If witnesses Kalawati and Munni Bai did not tell the name of culprits at the spot then as to how Shobhi Lal (PW-7) and Munna Lal (PW-10) could know that the deceased was beaten by the appellant and co-accused persons. No relation of deceased Ramsiya could be proved with Shobhi Lal and Munna Lal and those were independent witnesses, hence it is proved that soon after the incident the witnesses, who reached to the spot, found Kalawati and Munni Bai present and witnesses Kalawati and Munni Bai told other witnesses that appellant Dinesh and other co-accused persons had assaulted deceased Ramsiya. In these circumstances, testimony of Kalawati and Munni Bai is duly proved by witnesses Shobhi Lal (PW-7) and Munna Lal (PW-10) that Kalawati and Munni Bai were present soon after the (17) Criminal Appeal No. 1773/2004 incident and they told about the participation of accused persons.
15) Witness Munni Bai (PW-6) was suggested that she took a field of one Pandit and Kol on mortgage and she was working on that field. Munni Bai accepted that she took the field of Pandit and Kol for sowing the Peddy and she weeded that field 15 days prior to the death of deceased Ramsiya but she denied that she was working in that field at the time of the incident. Witness Kalawati was given a suggestion that her husband never took a goat to the field and on that very day as to how he took a goat to that field for its grazing. However, as told by witnesses Kalawati and Munni Bai that they went to the field for weeding of the field and, therefore, it was not much important as to whether deceased Ramsiya took the goat for grazing or witness Kalawati took the goat.
16) Various minor contradictions were recorded in the evidence of Kalawati as well as Munni Bai along with their case diary statements, such as how many blows were given by the accused persons, whether appellant Dinesh kicked witness Kalawati, what were the words (18) Criminal Appeal No. 1773/2004 when witness Kalawati cried for help, whether she had mentioned that blood was coming out from anus of deceased Ramsiya. However, when a witness lodges an FIR or deposes before the Police, relevant portion of the incident is to be informed. If some details are asked in the cross-examination of the witnesses and such details are not found in the previous statement of the witness like in FIR or case diary statement, then it cannot be said that there was a material contradiction in the testimony of the witness. If some questions were not asked by the Police and detailed statement was not given by witness in beginning then it cannot be said that details given by the witness in the cross-examination were omissions. Similarly, when three persons were beating deceased Ramsiya and witness Kalawati was 50-60 feet behind him then her attention could be concentrated on saving her husband. It is not possible for any witness to count the blows or to see that whose blow caused a particular injury to the deceased. Hence if such contradictions and omissions were marked in the evidence of Kalawati and Munni Bai along with their case diary statements and (19) Criminal Appeal No. 1773/2004 FIR, then it makes no difference for consideration of their testimony.
17) Learned counsel for the appellant has submitted that the testimony of Kalawati and Munni Bai was not believable as they were interested witnesses to implicate their enemies in the crime, though they did not see the incident. Learned counsel for the appellant has also placed reliance upon the judgment of the Apex Court in "Jalpat Rai and others Vs. State of Haryana"- [(2011) 14 SCC 208], in which it is held that if witness is interested or partisan then there is a need for corroboration from collateral or surrounding circumstances. In the present case, the testimony of witness Kalawati and Munni Bai is duly confirmed by independent witnesses Shobhi Lal (PW-7) and Munna Lal (PW-10) that the witnesses immediately informed the names of the culprits to the witnesses gathered at the spot. Thereafter FIR Ex.P-1 was lodged timely. The description given by Kalawati and Munni Bai about the injuries caused to deceased Ramsiya was duly corroborated by Dr. S.K.Pathak (PW-9) in his post mortem (20) Criminal Appeal No. 1773/2004 report Ex.P-19 and, therefore, in the light of the judgment passed by the Apex Court in Jalpat Rai (supra), though Kalawati and Munni Bai were interested witnesses but their testimony was duly corroborated and they should be believed.
18) Learned counsel for the appellant has also invited attention of this Court about the lapses and irregularities done in the investigation and also relied upon the judgment passed by the Apex Court in Sunil Kundu (supra) that if investigation is defective then an acquittal is warranted. Such submissions are made because no weapon of offence could be seized from the appellant, however, it is clear from the record that appellant Dinesh had absconded for approximately an year after the incident and after one year of the incident, it was not possible that a stick could be recovered from him and it would be found blood stained. No such lapse in the investigation could be shown by the learned counsel for the appellant so that acquittal of the appellant can be recorded on the basis of lapses of the investigation.
(21) Criminal Appeal No. 1773/2004 19) On the basis of aforesaid discussion where the
testimony of eye witnesses Kalawati (PW-1) and Munni Bai (PW-6) is found believable due to corroboration of other witnesses, timely lodged FIR and the post mortem report, it is proved beyond doubt that the appellant had participated in the crime. It is specifically alleged that he started the assault and he gave a blow of stick on the head of the deceased. Dr.S.K. Pathak (PW-9) found a single injury on the head of the deceased by which his occipital bone was fractured and brain was also affected. The head injury of the deceased was primarily the cause of his death. Looking to the force of blow and the fact that after giving a blow on the head, the appellant continued to assault the deceased till he fell down on the ground and became unconscious, indicates that he intended to kill deceased Ramsiya, hence the trial Court has rightly convicted the appellant of offence under Section 302 of the IPC. There is no reason to accept the appeal filed by the appellant.
20) Consequently, the appeal filed by appellant Dinesh Shukla is hereby dismissed. The conviction as well as (22) Criminal Appeal No. 1773/2004 sentence recorded by the trial Court under Section 302 of the IPC against the appellant is hereby confirmed.
21) A copy of the judgment be sent to the trial Court along with its record for information.
(Shantanu Kemkar) (N.K.Gupta)
Judge Judge
/10/2015 /10/2015
PB