Madhya Pradesh High Court
Jeetu vs State Of Madhya Pradesh on 12 April, 2006
JUDGMENT S.L. Kochar, J.
1. This appellant has filed this appeal against the judgment and order dated 6-9-1996 passed by the learned V Addl. Sessions Judge, Indore in S.T. No. 500/1990, by which the appellant stands convicted under Section 302 of the IPC and sentenced to undergo R.I. for life.
2. The prosecution case as unfurled before the Trial Court is that deceased Salim was having old enmity with appellant and acquitted co-accused Sonu. Some day prior to the date of incident appellant and acquitted co-accused persons abused the deceased and threatened him. On 9-8-1990, in the evening deceased was on his shop and his brother Karamat Khan (P.W. 11), after collecting money from creditors was returning back to his Banana shop situated on Patnipura Chouraha. At that juncture he saw that acquitted co-accused Mahendra, Rajendrasingh and Sonu @ Rajendrasingh were catching hold the hand and leg of the deceased and appellant Jitu @ Jitendra Singh was causing injury by knife. The incident was also witnessed by witnesses Rafiq, Chottu Teli, Aziz besides Karamat. When Karamat, the brother of the deceased tried to catch appellant Jitu, the accused persons fled away. Deceased was taken to M. Y. Hospital in injured condition. In the hospital he was declared dead because of injury sustained by him. Brother of the deceased Karamat Khan (P.W. 11) lodged the report (Ex. P-12) in the police station on the same day. The police prepared inquest of the dead body and also autopsy was performed by Dr. Ravindra Choudhary (P.W. 15). Post-mortem report in Ex. P- 13. During the course of investigation, police prepared spot map. On disclosure statement of the appellant Kattaar was seized from the appellant and his nails were also seized and sent for chemical examination. Ex. P-19 is the FSL report and P-20 is Serologist report. After completion of the investigation, appellant and other three acquitted co-accused persons were charge-sheeted. The appellant and the acquitted co-accused persons denied the charges. Their defence was one of denial. According to them because of ill-will they were falsely implicated. They have not examined any witness in defence whereas prosecution has examined in total 21 witnesses and got proved 20 documents in its favour. The learned Trial Court, after hearing both the parties, while acquitting three co-accused persons named Mahendrasingh, Rajendra and Sonu, convicted the appellant for the offence as mentioned herein above.
3. The learned Counsel for appellant has submitted that the conviction of the appellant is based on solitary testimony of brother of the deceased Karamat (P.W.11). He was a chance and interested witness and in fact he had not lodged the FIR and the same was concocted by the police. The learned Counsel has submitted that this solitary eye-witness has not been relied upon by the Trial Court for acquitted co-accused persons, therefore, for the present appellant also his testimony is not worth.
4. On the other hand, the learned Counsel for State has supported the judgment and finding arrived at by the Trial Court.
5. We have heard the learned Counsel for parties and also perused the entire record.
6. The conviction of the appellant is based on the testimony of Karamat (P.W. 11), the brother of the deceased. Other independent eye witnesses Anwar (P.W. 13), Rafiq (P.W. 14) and Chottelal (P.W. 16) have turned hostile. The learned Trial Court sought corroboration to the statement of Karamat (P.W. 11) for relying his testimony against present appellant on evidence of seizure of knife on disclosure statement made by the appellant and presence of human blood on the knife and nails of the appellant. Dr. Ravindra Choudhary (P.W. 15) has also stated that from the seized knife the injuries found on the person of the deceased could be caused.
7. Though, Karamat (P.W. 11) is the real brother of the deceased but his testimony cannot be brushed aside only on this basis. There is no reason for him to leave actual culprit of his brother and implicate the appellant falsely. This witness has deposed that on the date of incident in the night at about 8 p.m. he was returning after collecting money from the creditors regarding sale of Banana. He saw that his brother Salim was caught hold by acquitted co-accused Sonu and present appellant Jeetu was assaulting by a weapon like knife or kattaar. He raised alarm, attracting witnesses Chottu, Rafiq and Aziz. Witnesses rushed towards the accused persons upon which they ran away. He also saw acquitted co-accused Rajendra Pandit and Mahendrasingh assaulting the de ceased. He was confronted by the defence Counsel with his report Ex. P-12 in which presence and participation of the acquitted three co-accused persons is not mentioned. Therefore, the learned Trail Court, because of this material omission in the FIR, given benefit of doubt to the acquitted co-accused but relied upon the statement of this witness for appellant Jitu.
8. The contention of the learned Counsel for appellant that this witness Karamat (P.W. 11) is also not reliable for present appellant, but we are not impressed by this argument. He was also not a chance witness. He was returning back to his shop where his brother deceased Salim was sitting and he saw the appellant assaulting his brother by weapon like knife or kattaar. His this version is fully corroborated by FIR (Ex. P-12) lodged immediately in the Police Station, Pardesipura within 35 minute of the incident. The police station is two kilo- meter away from the scene of occurrence. The version of this witness against the present appellant is consistent right from FIR to the statement given in Court. The prosecution has also examined independent witnesses but all have turned hostile, does not mean that the testimony of this witness Karamat (P.W. 11) is not worth for placing reliance. Because this witness has not been relied upon by the Trial Court for acquitted co-accused persons does not mean that his version for appellant cannot be relied upon. The principle of maxim "falsus in uno is falsus in omnibus" is not applicable in our country.
9. The contention of the learned Counsel that police party reached on the spot prior to recording of the FIR (Ex. P-12) and also received information, therefore, FIR (Ex. P-12) cannot be considered as FIR because police party already came to know about the commission of the cognizable offence. Therefore, Ex. P-12 at the most can be used as statement of witness Karamat (P.W. 11) recorded under Section 161 of the Cr.PC and the same cannot be used for corroboration to the testimony of Karamat in the Court. Though, witness Karamat has deposed that the police Jeep and the police party was present at the distance of 150-200 paces from the scene of incident: and when he reached to them they took him in the police Jeep and deceased Salim was taken to M.Y. Hospital in another Jeep which reached after 5-7 minutes. It does not mean that the police came to know the full version of the incident. According to this witness he went alongwith the police to the police station and thereafter lodged the report (Ex. P-12). No question have been put by the defence to the Investigating Officer Rajesh Singh (P.W. 21) on the aspect of recording of FIR (Ex. P-12) and the fact that police party already came to know about the commission of murder of deceased by the appellant prior to meeting with Karamat (P.W. 11) and taking him to the police station in a jeep. In Para 12 general suggestion has been given to this witness that all the forged proceedings were done by the police in the police station. This suggestion has been denied by the Investigating Officer. P.W. 11 Karamat in para five has specifically stated that after lodging the report (Ex. P-12) in the police station he went to the M.Y. Hospital and came to know through the clerk of the hospital that his brother had died. Police did not disclose this fact to him. On the next day he was called to identify his brother and he also witnessed the inquest proceeding vide Ex. P-8 and spot map Ex. P-l was also prepared at his instance. Dead body was given to him on Supurdginama.
10. The learned Counsel for appellant has taken us through the cross examination of this witness; Karamat (P.W. 11) that this witness has admitted in para eight that on the next day, he was informed by the persons of the locality after delivering the newspaper that his brother had died. At that time he was going to take milk. Thereafter he alongwith others went to M.Y. Hospital. This shows that the witness was not present on the scene of occurrence and he came to know on the next day on information given by other persons. We arc not impressed by this argument. On over all reading of the statement of this witness, it emerged that he went to the police station in a jeep, lodged the report Ex. P-12 regarding incident and thereafter he went to the hospital and came to know about the death of his brother. Thereafter he returned back to his house and on the next day, persons of his locality also informed him that his brother had expired in the hospital. The version of this witness is consistent right from the FIR to his statement in Court regarding assault of deceased by the appellant by weapon like knife. His version in Court is fully corroborated by FIR against the appellant as well as medical evidence of Dr. Ravindra Choudhary (P.W. 15). The defence has not challenged the homicidal death of the deceased, therefore, we have not discussed his aspect in detail. The seizure of knife at the instance of the appellant is also fully proved from the statement of the Investigating Officer Rajesh Singh (P.W. 21) who has stated in para two that appellant disclosed before him that he had hidden the knife underneath the bucket in his tea shop and thereafter he got the same recovered. This witness proved memorandum statement Ex. P-3 and in pursuance thereof seizure of knife Ex. P-4. This witness has also seized the nails of the appellant through seizure memo (Ex. P-5) and sent the same for chemical examination. The chemical examination report Ex. P-19 is disclosing the fact of presence of blood on Article A kattaar seized from the possession of the appellant and his pant and shirt Article s B-l and B-2 as well as nails of the appellant Article D. These Article s were sent for Serologist examination and its report is Ex. P-20. According to this report, on shirt, pant and nails of the appellant human blood was present and origin of the blood stain present on the knife could not be determined because the same was disintegrated. Blood group of the human blood also could not be determined because the same was not sufficient for test. The recovery of the knife from the possession of the appellant is also proved from the statement of panch witness Mohd. Iqbal (P.W. 1). Since no human blood was found on the knife and blood groups of the human blood available on. the pant, shirt and nails of the appellant, same were not sufficient for determination of blood group tallying with the blood group of the deceased. These circumstances cannot be used against the appellant. But excluding even these circumstances, we are satisfied that the eye-witnesses account, duly corroborated by FIR and medical evidence are sufficient for bringing home the guilt of the appellant.
11. Therefore, we fully concur with the judgment and finding arrived at by the Trial Court, convicting the appellant for commission of murder of deceased Salim. Hence we do not find any merit in this appeal. Thus the same is hereby dismissed. Appellant is on bail. He is informed through his Counsel to surrender himself before the Trial Court on 17th May, 2006 and the Trial Court is directed, upon his surrender to send him to jail for serving out the remainder part of the jail sentence. If the appellant does not surrender on a given date, the Trial Court is directed to take suitable action against him in accordance with the provisions of law under intimation to this Court. Office is directed to send copy of this judgment alongwith the record to the Trial Court for compliance.