Madhya Pradesh High Court
Bhagwan Das vs The State Of M.P. on 2 September, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:47606
1 CRA-1361-1998
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 2 nd OF SEPTEMBER, 2024
CRIMINAL APPEAL No. 1361 of 1998
BHAGWAN DAS
Versus
THE STATE OF M.P.
Appearance:
Shri Nitin Pendharkar - Advocate for appellant.
Shri A.N.Gupta - Govt. Advocate for respondent/State.
JUDGEMENT
Per: Justice Devnarayan Mishra:
This appeal is preferred being aggrieved by the judgment dated 02-04- 1998 passed by the learned Third Additional Sessions Judge, Jabalpur in Sessions Trial No. 236/97 by which the appellant has been convicted for the offence punishable under Sections 302 and 201 of IPC and sentenced to undergo life imprisonment with fine of Rs. 1000/- and RI for three years with fine of Rs. 1000/- respectively with default stipulations in paying fine amount.
2. The prosecution case in nutshell is that deceased Mithulal and the appellant were residents of village Temar. Mithulal was working in the field of Deepchand Kacchi (PW-1). The appellant was having doubt that deceased Mithulal has played some black magic to his wife and that she was suffering from illness. On 29-12-1996, deceased-Mithulal went to Khamaria Market Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:47606 2 CRA-1361-1998 and the appellant and witness Chetram (PW-6) went to village Mahgawa for receiving their wages of labour. At 4:00 pm, Mithulal also reached to Mahgawa. Chetram (PW-6), deceased- Mithulal and appellant were returning to village Temar. After sometime, Chetram separated and went to his son's house and the appellant and Mithulal went towards Temar. Appellant was having a 'sabbal'. Mithulal's wife Dharma Bai (PW-10) came to Chetram (PW-6) house and enquired about Mithulal. Chetram (PW-6) told her that the appellant and the deceased were coming together and to inquire about the deceased, Chetram went to the appellant's house and saw that there was blood stains on the shirt of the appellant. When he inquired from appellant, he disclosed that he had murdered Mithulal, in way to Devitoria and asked him not to disclose this fact to anyone otherwise he will kill him. Chetram informed Deepchand about the murder of Mithulal then, Deepchand send his son Prashant along with Chetram (PW-6) to lodge First Information Report. FIR was lodged in Police Station Cantt. Jabalpur as Crime No. 348/96 under Section 302 of IPC.
3. The appellant was arrested and from his disclosure, the dead body of the deceased was recovered from Devitoria, Pieces of stones were also recovered from the place of incident. 'Sabbal' was recovered from the possession of the appellant. The 'Laas Panchayatnama' was prepared on 30- 12-1996. Autopsy was conducted over the dead body of the deceased by Dr. J.L. Sehgal (PW-7). After investigation, charge-sheet was submitted before the Additional Chief Judicial Magistrate, Jabalpur. After committal, the case was submitted to the Sessions Court, Jabalpur and further transferred before Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:47606 3 CRA-1361-1998 the trial Court.
4. The trial Court framed charges under Sections 302 and 201 of IPC. The appellant abjured the guilt and prayed for trial. The trial Court recorded prosecution evidence and examined the appellant under Section 313 of Cr.P.C. The appellant has not examined any defence witness in his defence. After hearing both the parties, the learned Trial Court passed the impugned judgment. Being aggrieved by this impugned judgment, this appeal is preferred.
5. Learned counsel for the appellant Shri Nitin Pendharkar submits that the findings recorded by the trial Court are perverse and are based on no evidence. There is no eye-witness and the appellant has been convicted only on the the basis of last seen together with the deceased and on extra-judicial confession but, the evidence on both the facts is not trustworthy. The prosecution had failed to prove that same blood group that of the deceased were found on 'sabbal' and clothes of the appellant. The 'sabbal' is generally used by the labourers and farmers and only on the recovery of 'sabbal' from the possession of the appellant, no inference can be drawn.
6. Learned counsel further submits that there was no intention of the appellant to murder the deceased and the appellant has been wrongly convicted and sentenced. Hence, the judgment of the trial Court cannot be sustained and the appellant be acquitted from the charges under Sections 302 and 201 of IPC.
7. Learned counsel for the respondent Shri A.N.Gupta submits that the trial Court has properly discussed each and every circumstances that were Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:47606 4 CRA-1361-1998 brought against the appellant and the judgment is based on relevant and admissible evidence and therefore, no ground of acquittal is made out. Hence, the appeal be dismissed.
8. We have gone through the record. Dharma Bai (PW-10) has stated that Mithulal was her husband and her husband was working in the field of Deepchand Kacchi (PW-1). On the date of incident, her husband went to khamaria market and when he did not return that night, she went to search him. Chetram (PW-6) met him on the way. He told her that her husband was returning from Khamaria Market but, she said that he did not return in the night. On the next day, the police came in their village and told her that her husband was murdered. Witness Chetram (PW-6) supporting the statement of this witness had stated that he was working in Mahgawa on the date of incident. At 4:00 PM, they have received wages. Mithulal had went to Khamaria Market to Mahgawa. Appellant-Bhagwan Das, Mithulal and he were returning from Mahgawa to their village Temar. The appellant was having 'Sabbal'. After going some distance, he went to his sons house to give money and the appellant and the deceased-Mithulal went on their way and when they reached their house, the deceased wife came to his house and enquired about her husband. He told her that her husband was returning with the appellant. On the same night, the appellant came to his house and called him outside and disclosed that he had murdered the deceased- Mithulal with stones and 'sabbal' and thrown the dead body in a pit and also threatened him and instructed not to disclose this fact. Next day, this fact was told to Deepchand (PW-2). He along with Prashant (PW-5) went to police station Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:47606 5 CRA-1361-1998 and lodged FIR.
9. Witness Deepchand (PW-2) had stated that the deceased- Mithulal, Chetram (PW-6) and Mansingh were working in his field in village Temar. The deceased Mithulal was staying with his wife and daughter. On 30-12- 1996, Chetram came to him and stated that the appellant had disclosed him that in the night he had murdered Mithulal. On that he asked his son Prashant to lodge FIR along with Chetram. Witness Prashant (PW-5) had stated the same fact. Witness D.K. Mishra (PW-1) supporting the above witness stated that on 30-12-1996, he was posted as Assistant Sub-Inspector in Police Station Cantt. Jabalpur and on information of Chetram (PW-6) s/o- Chhotelal, he lodged the FIR (Ex.P/1).
10. Witness Rajendra Singh (PW-11) Investigating Officer had stated that on 30-12-1996, he was posted as SHO,Police Station Cantt. Jabalpur and on the basis of information by Chetram (PW-6), Merg. was registered and he visited the scene of crime at village Temar. He arrested the appellant- Bhagwan Das and on that Bhagwan Das had disclosed that the dead body of the deceased was lying in the pit (khandak) and the stone used in the offence was also lying near that. He prepared the disclosure Memo Ex. P/4 and on information of appellant, he reached Singarghati Devitoria and recovered the dead body of the deceased-Mithulal, a stone was lying near the dead body and fresh blood and hairs were found on the stone that was seized. Injuries were found on the shoulder and head of the deceased. He prepared the Seizure Memo (Ex. P/5). He called the witnesses and prepared 'Laash Panchanama' (Ex. P/12) and send the dead body of the deceased along with Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:47606 6 CRA-1361-1998 post-mortem application (Ex.P/16). He prepared the Spot Map and recovered the key ring, blood stained soil and simple soil vide Recovery Memo (Ex. P/8). Further, the appellant on interrogation disclosed 'sabbal' and shirt having put in 'taparia'(hut) vide Ex. P/6, was prepared at the instance of the appellant and blood stained 'sabbal' and shirt was recovered and seized and appellant was arrested.
11. The fact of recovery of dead body of the deceased, pieces of stones from the pit, 'sabbal' and blood stained clothes of the appellant is supported by Prashant (PW-5) and this witness had also clearly stated that the appellant was arrested on the next day of incident and on his disclosure, from a pit of Devitoria, the dead body of the deceased was recovered and stone was lying near the dead body. At the instance of appellant, 'sabbal' was also recovered in which blood stains was found from the possession of the appellant. From the spot, blood stained soil and simple soil were recovered. Near the dead body of the deceased-Mithulal, a chain was found in which a key was attached. 'Article-A' is the same piece of stone that was recovered from the place of incident and 'Article-B' is same 'sabbal' recovered from the possession of the appellant.
12. Dr. J.L. Sehgal (PW-7) conducted the autopsy over the dead body of the deceased on 31-12-1996 at 10:00 AM. He found a lacerated wound measuring 3" x 1" x bone deep in the right parietal region and right parietal bone was fractured. One lacerated wound was found measuring 1" x 1/2" x 1" bone deep in the left parietal region and the left parietal bone was fractured. A lacerated wound 2 " x 1/2" x bone deep in the left side of the Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:47606 7 CRA-1361-1998 eyebrow. A lacerated wound 1/4" x 1/3" x near the left ear whose cartilage was broken. A lacerated wound measuring 3/4 " x 1/4" x bone deep in the mid of left ear below the eye. A lacerated wound 1/2" x 1/3" x bone deep on the left cheek below the eye. A lacerated wound 1-1/2"x 1/2" x bone deep with fracture on the right side of the chin. A contused abrasion 2" x 1" on the right shoulder. A contused abrasion measuring 3" x 1" on the right ankle were found. The doctor has opined that all the bones of the skull were fractured and fragmented. As per opinion of the doctor, the deceased died due to injuries sustained in the head and brain and injuries were caused by hard and blunt and heavy weapon.
13. This doctor has further opined that on 11-02-1997, a 'sabbal' and stone was brought by Head Constable No. 554. On examination, he found that the stone was 13 inches long and in the mid it was having 17 inches radius and the size of 'sabbal' was 58" x 1/3", and radius in the mid was 3 inch and in the stone, blood and hairs were found sticked and in the end portion of 'sabbal' blood stains were found. He opined that the injuries suffered by the deceased may be caused by this weapon.
14. Thus, from the chain of circumstances, it is clear that on 29-12- 1996, the deceased went to Khamaria Market and from there he reached to Mahgawa, where witness Chetram (PW-6) and appellant met him and when they were returning to village Temarghat, he did not return to his house and when her wife Dharma Bai (PW-10) searched for him, she asked Chetram and after that the appellant came to house of Chetram and narrated the incident and disclosed that he had murdered the deceased.
Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AMNEUTRAL CITATION NO. 2024:MPHC-JBP:47606 8 CRA-1361-1998
15. On the motive point, though, the prosecution had examined Mastram (PW-4) but, he had not supported the case and had stated that in December 1996, the appellant has told him that the deceased-Mithulal was playing black magic on his family. On that this witness Mastram had stated that it is his personal matter and he cannot say anything. Thus, the motive was that the appellant was having a doubt that the deceased was playing black magic over his family members.
16. On the point of extra-judicial confession, Chetram (PW-6) had clearly stated that on the same night, the appellant disclosed to him that he had murdered the deceased. Though, Chetram in the case-diary statement stated that when he reached the appellant's house, he disclosed this fact and in the Court statement Chetram (PW-6) states that appellant himself came to his house and disclosed but, this fact is well corroborated by evidence of Deepchand (PW-2) and Prashant (PW-5) that Chetram had told that appellant had murdered the deceased and only on that basis, FIR ( Ex.P/1) was lodged on the instructions of Deepchand (PW-2). Deepchand (PW-2) and the deceased Mithulal was working in his field.
17. Another point as supported by the Investigating Officer had clearly stated that on disclosure of the appellant, the dead body of the deceased was recovered from the pit of Singarghati, a stone and a 'sabbal' used in the offence was recovered from the possession of the appellant. The injuries suffered by the deceased may cause by 'sabbal' and the stone recovered from the possession of the appellant.
18. In the FSL report ( Ex.P/20), blood was found on the stone, blood Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:47606 9 CRA-1361-1998 stained soil, 'sabbal', shirt of the appellant and the deceased and half-pant of the deceased, though, the blood group could not be determined.
19. From the above evidence, it is established that the deceased was lastly seen with the appellant and appellant has not explained when the deceased separated with him and when both persons were returning to village and where the deceased went.
20. The extra-judicial confession by the appellant to Chetram (PW-6) is supported by the statement of Deepchand (PW-2), Prashant (PW-5) and FIR (Ex.P/1) and there is no motive or reason for Chetram (PW-6) to falsely implicate the appellant. Another instance that the dead body was recovered from the disclosure of the appellant, stone and 'sabbal' were recovered from the possession of the appellant. Thus, the appellant was having knowledge where the dead body was lying and the disclosure was made just after second day of the incident and these circumstances also goes against the appellant.
21. Learned counsel for the appellant submits that on the basis of judgment of the Hon'ble Apex Court in the cases of Mahadev Prasad Kaushik vs. State of UP & Anr. ( Criminal Appeal No. 1625/2008 dt. 17-10- 2008), N. Ramkumar Vs. The State Represented by Inspector ( Criminal Appeal No. 2006/2023 dt. 06-09-2023), Shaji Vs. The State of Kerala ( Criminal Appeal No. 2293/2023 dt. 07-08-2023), it is argued that the act of the appellant comes in the purview of Culpable homicide not amounting to murder but, looking to the facts of the case and the injury suffered by the deceased, it is clear that no single injury was inflicted but, the deceased was inflicted on head by stone and 'sabbal' and the appellant was having intention Signature Not Verified Signed by: PARMESHWAR GOPE Signing time: 9/23/2024 11:25:28 AM NEUTRAL CITATION NO. 2024:MPHC-JBP:47606 10 CRA-1361-1998 to eliminate the deceased as he was having doubt that appellant had played black magic over his family member and thus, there was clear intention of the appellant to murder the deceased. Hence, case of the appellant does not fall within the category of 'Culpable homicide not amounting to murder'.
22. Thus, looking to the facts and circumstances, motive and intention, no interference in the impugned judgment is called for, hence, the judgment passed by the learned Trial Court is affirmed. The appeal being devoid of merits is dismissed.
23. The appellant bail bonds is cancelled. He will surrender before the learned Trial Court to serve out the remaining jail sentence, in default, the Trial Court shall make arrested the appellant and send him to concerned jail to serve the remaining jail sentence.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
PG
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 9/23/2024
11:25:28 AM