Madhya Pradesh High Court
Jagdish vs The State Of M.P. on 25 September, 2019
Author: Shailendra Shukla
Bench: Shailendra Shukla
1 CRA. No.1105/2001
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE MR. JUSTICE S.C. SHARMA
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.1105 OF 2001
SANJAY AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
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Mr. K.R. Malviya, learned counsel for the appellants.
Mr.Abhishek Tugnawat, learned counsel for the respondent/
State of Madhya Pradesh.
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JUDGMENT
(Delivered on 25th day of September 2019) Per Shailendra Shukla, J.
The present appeal has been preferred under Section 374 of Criminal Procedure Code, 1973 (for short 'Cr.PC') against the judgment dated 18.08.2001 passed by Additional Sessions Judge, Sardarpur in ST No.306/97, whereby the appellant-Jagdish has been held guilty under Sections 302/34 and 307 of Indian Penal Code, 1860 (for short 'IPC') and the appellants namely; Sanjay, Mahesh, Rajendra, Sumitrabai and Jamnabai have been convicted under Section 302 read with Section 34 of IPC and all the appellants have been sentenced to Life Imprisonment and fine of Rs.500/- each respectively for committing offence under Section 302/34 IPC and appellant-Jagdish has additonally been sentenced to five years RI and fine of Rs.500/-.
2. During pendency of this appeal, appellant-Jagdish having completed the term of his imprisonment has 2 CRA. No.1105/2001 withdrawn his application and the appellants Mahesh and Rajendra have expired. Now this appeal shall be heard in respect of appellants namely; Sanjay, Sumitrabai and Jamnabai.
3. It is an admitted fact that there was an old enmity between the appellants and the family of deceased- Hariram.
4. The prosecution short in short was that on 02.06.1997 in village-Ringnod which comes under the jurisdiction of Police Station-Sardarpur, District-Dhar (MP), the appellants armed with dangerous weapons attacked complainant-Mukesh and his father-Hariram dealt blows with falia and stones etc. On hearing cries, witnesses namely; Rafiq, Maulana and Gaurav came and intervene. Both Mukesh and Hariram were taken in a vehicle to Police Station-Sardarpur, from where they were then taken to BMC Hospital, Sardarpur, where Hariram was found to be brought dead and Mukesh was admitted in an injured state. The Station House Officer, Sardarpur, Mr. R.A. Verma (PW-16) initiated inquest, a punchnama of the dead body of Hariram was drawn, post-mortem was conducted by Medical Officer, Dr. M.L. Jain (PW-30). The Investigating Officer (IO) seized stones as per memoranda of appellants, Mahesh, Sanjay and Rajendra and weapon- falia was recovered as per the memorandum of Jagdish. The accused persons were arrested. The statement of witnesses under Section 161 Cr.PC was recorded and after rest of the investigation, chargesheet was filed under 3 CRA. No.1105/2001 Sections 302, 302/34, 307 and 307/34 of IPC.
5. After committal, the matter came up for trial before ASJ, Sardarpur who framed charges under Sections 302 IPC in alternative Section 302/34 IPC, Section 307 IPC inalternative Section 307/34 IPC against the accused persons. The appellants abjured their guilt and stated that Hariram and Mukesh had come armed with weapons to assault the appellants, however, they slipped off from the terrace and fell down and suffered injuries. The appellants- Sanjay, Sumitrabai and Jamnabai took the defence of Alibi.
6. In the appeal filed under Section 374 Cr.PC, it has been stated that the witnesses who have been termed to be eye-witnesses of the incident were not infact present on the spot, conclusions drawn in respect of Sumitrabai and Jamnabai that they caught hold of the hands of deceased while others assaulted Hariram is not supported by any evidence. As per appellants, police has fabricated the evidence and has convicted them only on the basis of conjectures and surmises. That the evidence of defence witnesses were not considered by the Presiding Officer, that the weapon used was not sent to the FSL for forensic examination which is a major lacuna and on these grounds, acquittal has been sought.
7. The main question before us for determination is whether in view of the grounds contained in the appeal memo, appellants Sanjay, Sumitrabai and Jamnabai who have been convicted under Section 302/34 of IPC deserve to be acquitted ?
4 CRA. No.1105/20018. The prosecution has examined sixteen witnesses in all, out of which eight witnesses are the eye- witnesses. The eye-witnesses are Mukesh (PW-3), Brijlal (PW-4), Abdul Ali (PW-5), Rafiq Khan (PW-6), Suresh Babu (PW-11), Abrar Khan Pathan (PW-12), Ayub Khan (PW-14) and Baby Bai (PW-15). Out of them, Mukesh (PW-3), Brijlal (PW-4) and Baby Bai (PW-
15) have supported the prosecution story, rest of them turned hostile. Seizure and memorandum witnesses are Hariom Bairagi (PW-1), Shankar Das (PW-2), Kamal (PW-7), Ramesh (PW-8), Ramsingh (PW-9) and Bharat Singh (PW-10). The Doctor who conducted the post- mortem is Dr. M.L. Jain (PW-13) and Investigating Officer R.A. Verma is (PW-16). The appellants have also examined three defence witnesses in support and these are OP Rathore (DW/1), Mangilal 9DW/2) and Hukmichand (DW/3).
9. The witness R.A. Verma (PW-16) states that on 02.06.1997, he was posted as Station House Officer in Police Station, Sardarpur. On that day, Brajbala lodged a report, which is Exhibit-P/6, which carries his signatures from B to B part. As per this witness, along with Brajbala, two injured persons namely Hariram and Mukesh were also brought. Both of them were sent to Block Medical Centre, Sardarpur for their MLC vide request letter Exhibit- P/19 and P/20.
10. Dr. M. L. Jain (PW-13) states that while he was posted as Medical Officer in Block Medical Centre, 5 CRA. No.1105/2001 Sardarpur, he cross-examined injured Mukesh and Hariram. As per the request of SHO, Sardarpur, this witness states that while Mukesh was injured, Hariram was already dead. There was lacerated wound on his left frontal region measuring 4cm x 1cm and another lacerated wound on parietal occipital region measuring 6cm x 2cm. There was swelling on his left frontal region also. The witness states that all the injuries were caused due to hard and blunt object and were antemortem in nature. On the same day i.e. 02.06.1997, the witness carried out post- mortem of Hariram. On internal examination, it was found that there was fracture on left fronto-occipital region, which is extended from the frontal to the occipital region, brain membrane was torned and brain was swollen.
11. An opinion was expressed again that injury was due to hard and blunt object and death was within 24 hours from the time of examination, that post-mortem report is Exhibit-P/20. The witness states that he was also queried as to whether the injury to Hariram could have been caused by stones. The witness vide Exhibit-P/26 answered in affirmative. This witness has been asked a question in cross-examination as to whether injury to Hariram could have been caused by fall on a stone. The witness in para- 13 has answered this question in affirmative.
12. It has been the defence of the appellants that it was the deceased Hariram who had come to attack the appellants, however, Hariram fell off the terrace and suffered head injury. This defence shall be considered 6 CRA. No.1105/2001 later. It has been found proved that death occurred due to the impact of hard and blunt object on the head of Hariram.
13. Now those eye-witnesses who have supported the prosecution story shall be considered.
14. To recall once again, charge against the appellants was that they either themselves committed the murder of Hariram and was acted in furtherance of common intention and all other co-accused persons in murdering Hariram. The trial Court has found offence under Section 302/34 of IPC proved against all the three accused persons.
15. Mukesh (PW-3) states that on 02.06.1997 at about 7:00 am, he along with his sister-Brijbala were sitting in the interior room of his house, in the exterior room his father- Hariram and mother-Sitabai were sitting and at that point of time, the appellants Sanjay, Sumitrabai and Jamnabai came with stones in their hand, other co-accused Jagdish had sariya, Rajendra had dhariya and Mahesh was also having stones in their hands. These accused persons entered the house from the backdoor and bagged into the house of Mukesh and told him to withdraw the report lodged by him otherwise he would be killed. Mukesh states that he refused to withdraw the report and at that point of time, Jagdish took dhariya from his brother Rajendra and hit Mukesh on his head who received injury. Mukesh state that in order to save himself he rushed out of the house, his father ran after him to save him, but Sumitrabai and Jamnabai caught hold of his father and rest of the accused namely; Jagdish, Sanjay, Mahesh and Rajendra and 7 CRA. No.1105/2001 inflicted stone injuries on his father who however later on died. He states in para-8 that his father was hit inside the house only. In para-21, he states that when his father was coming to save him at that point of time, Sumitrabai and Jamnabai held his father with their hands.
16. When this witness states that as soon as he was hurt, he rushed outside of his house. If he had so rushed out of his house immediately where was the opportunity for him to look back as to who had held the hands of his father and who inflicted injuries upon him. Hence corroboration of this witness is must.
17. Brijbala (PW-4) is the sister of Mukesh (PW-3) and states that on the day of incident, when she along with her brother-Mukesh was in the backroom of her house, her father and mother was sitting in the front room of the house and at that point of time, accused Jagdish, Sanjay, Rajendra, Sumitrabai and Jamnabai armed with stones and falia rushed inside their house, Jagdish then asked Mukesh to withdraw the report lodged by him and when Mukesh declined, Jagdish inflicted falia blow on his head and her brother rushed towards hospital. The witness states that her father-Hariram rushed to save her brother but Sumitrabai and Jamnabai both caught hold of her father and rest of the accused persons inflicted injuries with stones on her father and then Jagdish took up a very big stone and caused injury to his father. Father had already fallen down. She states that her brother was watching the whole incident, but he was bleeding profusely 8 CRA. No.1105/2001 and was not able to get up. She states that report was lodged in police-station-Sardarpur which is Exhibit-P/6 with 'a to a' signatures of witness on the report. In cross- examination at para-5, she again reiterates that both lady accused persons had caught hold both the hand of her father and then caused injuries with stones and accused- Jagdish had injured her father with 20-25 kilograms of stone. In her report which is Exhibit-P/6 and police statements which is Exhibit-D/2, there is no reference of accused-Jagdish picking up a very big and heavy stone and injuring her father.
18. Whereas Mukesh (PW-3) states that his father was held up inside the house and beaten up there only, Brijbala (PW-4) states in para-5 that both lady appellants caught hold of her father when her father was trying to pick up Mukesh. Thus, there is discrepancy on the statements as to where deceased-Hariram was caught hold of by both the lady appellants. The distance between the house of deceased-Hariram and the place where he fell after being hit are quite distant as can be seen from the spot map which is Exhibit-P/7. Mukesh (PW-3) himself states that the distance from his house to the hospital is 150 steps away whereas Brijbala in para-10, terms the distance as 100 steps away. Even considering the distance of 100 steps between the house and hospital, there is a huge difference between the places where Hariram was caught hold by two lady appellants as per Mukesh (PW-3) and that by Brijbala (PW-4).
9 CRA. No.1105/200119. Babybai (PW-15) is another eye-witness who has supported the prosecution story. She states that deceased- Hariram was her brother-in-law and at the time of incident she was also in the same house and had come for delivery of a child and was already delivered a child two months earlier. She states that on the day of incident, accused- Jagdish entered the house from behind the backdoor and as soon as Mukesh came out, he was injured with falia and father-Hariram came out for rescue, then all the accused persons caught hold of him and killed him with stones. She states that both Hariram and Mukesh came out of their house from front door and while Mukesh was hit inside the house and Hariram was attacked on the road. In para-14, she states that on the date of incident, witnesses namely; Mukesh, Hariram and Sitabai were in the kitchen whereas Brijbala was sleeping in the front room and Mukesh was sitting near 'Chulha' when he was attacked. She denies that when Mukesh was injured, Hariram and Sitabai were in the front room. Thus, these statements are divergent from those of Mukesh (PW-3) and Brijbala (PW-4) as to the places where members of the house were stationed when the incident/attack occurred. While Mukesh (PW-3) states that Hariram was inflicted with injuries inside the house, Brijbala (PW-4) states that Hariram was inflicted injuries near the hospital where Mukesh was sitting after being injured and this witness-Babybai (PW-15) in para-17 states that Hariram was hurt just outside the house near 'Otala' (verandah).
10 CRA. No.1105/200120. The defence of the appellants, however, is absolutely different and they state that Mukesh and Hriram were aggressors and both had climbed over the terrace of the hospital, armed with weapons where Jagdish used to sleep in summers and in the commotion that followed, both slipped off the terrace and Hariram died due to striking of stones against him. In order to substantiate this defence, the place where Hariram's body was found has been brought to Court's attention. Rafiq Khan (PW-6) who is a hostile witness has admitted in his examination-in-chief that on 02.06.1997 at about 6:30 am, on hearing lot of noise, the witness came out and saw that deceased- Hariram was lying unconscious in a lane which can be accessed only through the house of compounder-Kaurav. This witness in para-5 admits that the place where Hariram was found can be reached either from inside the house of compounder-Kaurav or if someone leaps from the terrace of the hospital. Thus, learned counsel on behalf of the appellants state that the evidence of this witness itself proves that Hariram fell off the terrace and landed on the lane because it is not the case of prosecution that Hariram had entered the house of compounder-Kaurav,when chased. Mr. Kaurav whose full name is Suresh Babu Kaurav (PW-11), in para-8, admits that he found Hariram lying in a lane which is inside his house. The suggestion has been given to Mukesh (PW-3) that he, along with Hariram wanted to attack Jagdish and both had climbed up the terrace of the hospital and his father-Hariram dealt two-
11 CRA. No.1105/2001three lathi blows on Jagdish and thereafter scuffle ensued. Jagdish and Hariram fell off the terrace. This suggestion has been denied by Mukesh (PW-3). Brijbala (PW-4) and Babybai (PW-15) have also denied the suggestion.
21. Doctor's post-mortem report shows that the main injury was caused on deceased-Hariram on his skull which were on fronto parietal region which was caused by hard and blunt object and could have been caused by stones which were sent to him for inspection,his such query report is Exhibit-P/26. This witness in para-13 admits that if someone falls headlong on stone then also such injuries could be caused.
22. Thus, it appears that Hariram was found injured in a lane which could be accessed either from inside the house of compounder-Kaurav or by jumping from terrace of the hospital. The Doctor has also stated that the injuries could have been caused by fall. This give ample push to the defence of appellants that Hariram had died as a result of fall from terrace and the theory propounded by prosecution is that the appellants entered the house of Hariram and assaulted him which does not evoke confidence. It has already been seen that there is a variance between the statements of eye-witnesses regarding the place where deceased-Hariram was assaulted.
23. It would be appropriate to consider the evidence of defence witness-Hukumchand (DW-3) in this respect. The defence witness-Hukumchand (DW-3) states that on the date of incident, he had gone to handpump near the 12 CRA. No.1105/2001 hospital for filling up the water and saw scuffle going on between Hariram and Jagdish and Hariram fell off the terrace in a lane which is closed from outside. He also states that this lane is closed with ten feet eye-wall and public cannot entered this lane and one can enter this lane either by jumping from the terrace of hospital or from inside the house of compounder-Kaurav. This witness has been cross-examined. He has not been given any such suggestion which may tend to discredit the evidence.
24. There is further variance as to the role played by two lady appellants namely; Sumitrabai and Jamnabai. Brijbala (PW-4) states that both these ladies had caught hold of her father-Hariram and other co-accused persons inflicted stone injuries on Hariram. As against this, in report Exhibit- P/6 lodged by the same witness, it has been mentioned that these lady appellants also inflicted injuries with stones on deceased-Hariram. However, no stones were recovered from these lady appellants. One of these lady namely; Sumitrabai infact states in statements under Section 313 Cr.PC that she was not present at the place of incident. She has examined defence witness-Mr. O.P. Rathore (DW-
1) who states that Sumitrabai stayed in Laxmi Lodge, a hotel on 01.06.1997, thus, justifying the defence of Sumitrabai that she had stayed in a hotel and was not present on the spot of incident. Sumitrabai in her accused statement states that one day prior to the incident, the appellants Hariram, Mukesh Brijbala had quarrelled in the evening whose report was lodged in the evening of 13 CRA. No.1105/2001 01.06.1996 at around 8-9 pm and it had became late, so she stayed in Laxmi lodge and was not present on the spot.
25. Thus, a doubt gets created regarding presence of Sumitrabai on the spot. As far as Jamnabai, it has already been found that regarding her role there is discrepancy in the statement of Brijbala (PW-4) in the sense that Brijbala states that Jamnabai had barely held the hands of deceased-Hariram but in FIR she states that Jamnabai had also assaulted deceased-Hariram with stone. In view of such discrepent statement involvement of Jamnabai also becomes doubtful.
26. Regarding the involvement of appellant-Sanjay, the prosecution story is that Sanjay inflicted blow on deceased-Hariram with a stone.
27. As far as the recovery of stone at the instance of appellant-Sanjay is concerned, the witness of memorandum of appellant-Sanjay, Kamal (PW-7) has turned hostile and denies that Sanjay had given any such memorandum, which is Exhibit-P/11.
28. The Investigating Officer-R.A. Verma (PW-16), of course, states that stone has been seized as per memorandum of appellant-Sanjay. However, the same witness states that similarly the other accused persons Rajendra and Mahesh also gave their memorandum on the basis of which stones were recovered. A perusal of Exhibit- P/11 shows that the stone was recovered from hear Ringnod hospital and further stones were also recovered 14 CRA. No.1105/2001 from other co-accused persons from the same place. It is very difficult to understand as to how each of the three acccused persons may have identified their stones which were used in inflicting injuries on deceased-Hariram. As per FSL report-Exhibit-P/36, the stone recovered at the instance of appellant-Sanjay was found to have traces of blood. As already seen, the possibility of blood may have come on the stone when Hariram fell off from the terrace on such stone. Moreover, Shankardas (PW-2) in cross- examination states that the place of seizure was an open place. In such open place, if any incriminating article is recovered then it cannot be termed to be a discovery of a fact as per judgment of Apex Court in the case of Pulukuri Kottaya vs Emperor reported in AIR 1947 PC 67.
29. In the end, it would be appropriate to point out that prosecution witness Mukesh (PW-3) has stated that the accused assaulted him when he refused to withdraw the report which was lodged against the accused. However, the prosecution has not exhibited the copy of report which Mukesh had lodged against Jagdish. On the contrary, it has been found proved that it was the accused-Sumitrabai who had lodged the report against the complainants just one day prior to the present incident which substantiates the defence of appellants that it was the complainants Mukesh and Hariram who enraged at the report lodged by Sumitrabai had sought to assault the accused by climbing up the terrace of hospital but they fell off from the terrace and in the process Hariram himself succumbed to his 15 CRA. No.1105/2001 injuries.
30. Thus, due to the reasons described earlier, we are of the considered opinion that prosecution has not been able to establish beyond reasonable doubt that the appellants acted in furtherance of common intention of other accused persons in committing murder of Hariram. Consequently, this appeal succeed and appellants stand acquitted from the charge framed against them under Section 302/34 of Indian Penal Code, 1860, which has been found proved by the Trial Court. The appellants are already on bail, their bail bonds shall stand discharged.
The order pertaining to disposal of property by the trial Court is affirmed.
Let a copy of this order along with original record be sent to the trial Court for due compliance.
(S.C. SHARMA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2019.09.27
10:31:56 +05'30'