Rajasthan High Court - Jaipur
Madan Mohan vs State Of Rajasthan Through Pp on 6 November, 2019
Bench: Sabina, Goverdhan Bardhar
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
D.B. Criminal Appeal No. 786/2013
Madan Mohan S/o Dwarika Prasad, aged about 44 years, B/c
Brahmin, R/o Suraj Colony, Hindaun City, District Karauli.
(At present confined at District Jail, Karauli).
----Appellant
Versus
State Of Rajasthan Through P.P.
----Respondent
For Appellant(s) : Mr. S.S. Hasan, Advocate with Ms. Meenu Verma, Advocate For Respondent(s) : Mrs. Rekha Madnani for the State HON'BLE MRS. JUSTICE SABINA HON'BLE MR. JUSTICE GOVERDHAN BARDHAR Judgment / Order 06/11/2019 Appellant has filed this appeal challenging his conviction and sentence under Section 364, 302, 120-B Indian Penal Code, 1860 (hereinafter referred to as 'IPC') by the Trial Court vide order dated 19.09.2013.
Prosecution case was set in motion on the basis of the report lodged by the complainant Kailash Chand Sharma. On the basis of the report Exhibit P-1, formal FIR Exhibit P-15 bearing No.112 dated 23.02.2010 was registered at police station Hindaun, District Karauli under Section 302/34 IPC.
Prosecution story, in brief, as per the FIR is that on 23.02.2010 at about 6.00 a.m., Neetu @ Nitesh and Jitendra Kumar, sons of the complainant had left home for Jaipur. At the bus stand Hindaun, they met appellant Madan Mohan. (Downloaded on 07/06/2021 at 01:54:29 AM)
(2 of 7) [CRLA-786/2013] Complainant was informed by his son Jitendra at about 8.00 a.m. that Neetu @ Nitesh had gone with Madan Mohan and he (Jitendra) was going by bus to Jaipur. At about 10.00 a.m., complainant came to know that Neetu @ Nitesh had been murdered by Madan Mohan, Nirmala, his daughter-in-law and other family members. Dead body of Neetu @ Nitesh was lying in the house of Madan Mohan.
After completion of investigation and necessary formalities, challan was presented against the appellant.
Charges were framed against the appellant under Section 364/120-B and 302/120-B I.P.C. Appellant did not plead guilty to the charges framed against him and claimed trial.
In order to prove its case, prosecution examined seventeen witnesses, during trial. Appellant when examined under Section 313 Code of Criminal Procedure, 1973 (hereinafter referred to as 'Cr.P.C.'), after the close of prosecution evidence prayed that he was innocent and had been falsely involved in the case. In-fact, appellant had come to their house on the day of the incident and was misbehaving with his daughter-in-law Tanu @ Taramani. On hearing the cries of his daughter-in-law Tanu, he went inside the room and saw that the appellant was lying on top of his daughter-in-law. He rescued his daughter-in-law and deceased while trying to escape, hit his head against the wall and suffered injuries. He had made a phone-call to the police regarding the incident.
Appellant did not examine any witness in his defence. Learned counsel for the appellant has submitted that the appellant has been falsely involved in this case. In-fact, (Downloaded on 07/06/2021 at 01:54:29 AM) (3 of 7) [CRLA-786/2013] deceased had come to the house of the appellant and had misbehaved with his daughter-in-law. Deceased had suffered injury on his head as he had hit against the wall, while trying to escape. Complainant had later falsely introduced the story that the deceased had been taken to his house by the appellant. No reliance could be placed on the testimony of PW- 1 in this regard. As per PW-1 and PW-2, deceased had taken meals before leaving the house, whereas, at the time of the postmortem examination report, it was found that the stomach of the deceased was empty. Statement of PW-1 was recorded under Section 161 Cr.P.C. after 45 days. Learned counsel has further submitted that application moved by the appellant under Section 391 Cr.P.C. for calling Tanu @ Taramani as a defence witness was liable to be allowed.
Learned state counsel has opposed the appeal. Appellant has moved an application under Section 391 Cr.P.C. for taking additional evidence on record.
It has been prayed that during the course of arguments, on application of suspension of sentence, it had been observed by this court that Tanu @ Taramani daughter-in-law of the appellant has not been examined as a witness. Hence, appellant was ready to examine Tanu @ Taramani as a witness.
Thus, it is evident that the application has been moved under Section 391 Cr.P.C. by the appellant to fill up the lacuna in the case. Appellant was granted opportunity to lead his defence evidence by the Trial Court. Appellant had not led any evidence in his defence in support of plea taken under Section 313 Cr.P.C. As per Section 391 Cr.P.C., Appellate Court has the (Downloaded on 07/06/2021 at 01:54:29 AM) (4 of 7) [CRLA-786/2013] power to take additional evidence if it is necessary in the interest of justice, but the said provision cannot be used by the appellant to fill up the lacuna in his case. Hence, in the facts and circumstances of the case, application under Section 391 Cr.P.C. is liable to be dismissed and is accordingly dismissed.
Present case relates to murder of Neetu @ Nitesh. Complainant while appearing in the witness-box as PW-2 has deposed as per the contents of the FIR.
PW-1 Jitendra has deposed that Neetu was his younger brother. On 23.02.2010, he had left his house in the morning along with his brother Neetu @ Nitesh and had reached Hindaun bus stand. They had gone to the bus stand to take the bus for Jaipur as he had to appear in an interview and his younger brother was to take coaching in Jaipur. After sometime, Naresh friend of his younger brother, came there and said that he was also going to Jaipur and said that they could go together to Jaipur. Sister of Naresh was married to the son of appellant Madan Mohan. His brother told Naresh that he might miss his bus and then Naresh said that they could take the next bus to Jaipur. Then his brother along with Naresh sat in a Maruti Car and in the said car, Madan Mohan was sitting on the driver seat. Neetu and Naresh sat on the back seat and they left in the car. He took a bus to Jaipur and informed his father that Neetu @ Nitesh had gone with his friend Naresh to the house of Madan Mohan. Later he came to know that his brother had been murdered in the house of appellant. He returned home and reached the hospital. His brother had been (Downloaded on 07/06/2021 at 01:54:29 AM) (5 of 7) [CRLA-786/2013] murdered by Madan Mohan as he was suspecting that his daughter-in-law was having illicit relation with his brother.
PW-3 Mufeed did not support the prosecution case, during trial and was declared hostile.
PW-13 Dr. Amar Singh Meena deposed that he had conducted postmortem examination on the dead body of deceased Nitesh on 23.02.2010 and proved the postmortem examination report Exhibit P-14. A perusal of Exhibit P-14 reveals that the deceased had suffered following injuries:-
1). Diffuse Swelling on the Lt Tempo Partial Region of head with Ecchymosis at upper half of neck, below Lt ear, angle of mandible.
On Dissection:- extradural & Sub dural haemorrhage along with Fracture of Lt parietal & Temporal bones of skull seen.
2). Bruise- 7 x 5 cm on Antero lateral aspect of Lt arm placed obliquely red in colour.
3). Bruise- 6 x 4 cm on Antero lateral aspect of Rt arm placed obliquely red in colour.
4). Bruise- 8 x 4 cm on anterior aspect of mid of Lt thigh placed horizontally red in colour.
5). Bruise- 5 x 3 cm on anterior aspect of mid of Lt leg.
6). Abrasion- 5 x 2 cm on anterior aspect of mid as Lt leg.
7). Deep abrasion- 3 x 1 cm on mid of Rt leg anterior foot.
All the said injuries were declared antemortem in nature and were inflicted by blunt weapon. Cause of death of the deceased in the opinion of medical board was due to coma on account of head injury.
(Downloaded on 07/06/2021 at 01:54:29 AM)
(6 of 7) [CRLA-786/2013] The entire story deposed by PW-1 is not reflected in the FIR which was registered on 23.02.2010. Statement of PW-1 was recorded under Section 161 Cr.P.C. on 6.4.2010. The said fact is evident from the cross-examination of PW-1. In the FIR, it has been alleged that the deceased had met appellant at the bus stand and appellant had taken him with him, whereas, PW- 1 has stated that Naresh had taken the deceased with him towards a car which was being driven by the appellant. Since, there was delay in recording the statement of material witness PW-1, it is evident that material improvements have been made by PW-1 in his statement. PW-1 had returned home on the same day of the incident on coming to know about the murder of his brother, but there is no explanation as to why his statement under Section 161 Cr.P.C. was not recorded on the same day i.e., 23.02.2010, but was recorded on 6.4.2010.
So far as the plea taken by the appellant under Section 313 Cr.P.C. is concerned, the same is not corroborated by any other piece of evidence on record. However, from the statement of the appellant under Section 313 Cr.P.C., it is evident that the deceased was present in the house of the appellant when the incident took place.
As per PW-1 and PW-2 appellant suspected that the deceased was having illicit relations with his (appellant) daughter-in-law. PW-1 admitted in his cross-examination that Neetu @ Nitesh had told him that appellant suspected that he was having love affair with his daughter-in-law. He also admitted that his brother had been going to the house of Madan Mohan as he was a friend of Naresh. PW-1 has also (Downloaded on 07/06/2021 at 01:54:29 AM) (7 of 7) [CRLA-786/2013] admitted in his cross-examination that he had told his brother not to go to the house of the appellant and he had reduced his visits. Thus, it can be said that deceased had been visiting the house of the appellant. It appears that on the day of the incident, deceased was present in the house of the appellant and some alteration took place between the deceased and the appellant. Hence, it cannot be said that the appellant had the intention to commit the murder of Neetu @ Nitesh. On finding deceased in his house, appellant must have got angry and in the heat of passion and on the spur of the moment, he must have inflicted injuries to the deceased, although, appellant had no intention to commit the murder of the deceased and had the intention to inflict injury on his person on finding him in his house especially when he suspected that deceased was having love affair with his daughter-in-law. Hence, the present case would be covered under Section 304 Part I IPC and not under Section 302 IPC.
Accordingly, appellant is acquitted of the charge framed against him under Section 364 read with 120-B IPC. Conviction of the appellant is altered to 304 Part I IPC from 302 read with 120-B IPC. Appellant is sentenced to undergo rigorous imprisonment for ten years with a fine of Rupees ten thousand. In case of default of payment of fine, appellant shall further undergo rigorous imprisonment of six months.
Appeal stands disposed of accordingly.
(GOVERDHAN BARDHAR),J (SABINA),J
Mohita /29
(Downloaded on 07/06/2021 at 01:54:29 AM)
Powered by TCPDF (www.tcpdf.org)