Madhya Pradesh High Court
Kalu @ Chandrashekhar vs The State Of Madhya Pradesh on 29 September, 2022
Author: Sujoy Paul
Bench: Sujoy Paul, Prakash Chandra Gupta
1
Cr. A. No. 1294/2011.
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
CRIMINAL APPEAL NO. 1294 OF 2011.
BETWEEN :-
1) KALU @ CHANDRASHEKHAR S/O
RAM PRASAD, AGED 26 YEARS,
CASTE-RAJPUT, AGRICULTURIST,
R/O VILLAGE-BAMANGAON, P.S.
HARSUD, DISTRICT-KHANDWA,
M.P.
2) RAMU @ RAMLAL S/O RAM
NARAYANA KUNBI, AGED 27
YEARS, AGRICULTURIST. R/O
VILLAGE- BAMANGAON, P.S.
HARSUD, DISTRICT- KHANDWA,
M.P.
....APPELLANTS
(BY SHRI K.S. RAJPUT, & SHRI SAMAR SINGH RAJPUT, ADVOCATES)
AND
STATE OF MADHYA PRADESH,
THROUGH POLICE STATION-
HARSUD/ SC/ST, DISTRICT
KHANDWA, M.P.
....RESPONDENT
(BY SHRI A.S. BAGHEL, DEPUTY GOVERNMENT ADVOCATE)
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Reserved on : 15/09/2022
Delivered on : 29/09/2022
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2
Cr. A. No. 1294/2011.
This criminal appeal coming on for final hearing this day, JUSTICE
PRAKASH CHANDRA GUPTA, passed the following :
JUDGMENT
The appellants/accused persons have filed this appeal under Section 374(2) of the Code of Criminal Procedure (for brevity Cr.P.C.), being aggrieved by the judgment dated 26.04.2011 passed by Special Judge SC/ST(Prevention of Atrocities) Act,1989, (for brevity Act 1989) Khandwa in Special Criminal Case No. 79/2010, whereby learned trial Court has convicted the appellants under Section 302 r/w Section 34 of the Indian Penal Code,1860 (for brevity IPC) and sentenced to undergo life imprisonment and fine of Rs. 5000/- in default of payment of fine to undergo further one year of rigorous imprisonment each.
2. Prosecution story in brief is that the deceased Kanti Lal used to live in Village-Bamangaon, Police Station-Harsud, District-Khandwa. Agriculture field of Omkar Chamar is next to deceased's house. At that place some villagers used to play cards. Three to four days prior to the incident deceased stopped the accused Kalu alias Chandrashekhar and Ramu alias Ramlal to play card. On this the accused persons abused him and warn him about dire consequences. On the date of incident i.e. 22.09.2010 deceased Kanti Lal, along with his uncles Shantilal (PW/1), Dhan Singh (PW/2), Kotwar- MangiLal (PW/5) and Sanjay Patel (PW/4), went to immerse Ganpati Idol at Ghoda Pachaad river pool. At around 7.00 pm they were performing pooja. co-accused Sunil called the deceased and started talking to him, subsequently accused Ramu and Kalu came there. Accused Ramu caught hold of the deceased, Kalu attacked him with Sickle (Darati) and thereafter Ramu attacked him with knife on his neck, due to previous enmity. The deceased received injuries on his neck, stomach, nose and hands and started bleeding.
3Cr. A. No. 1294/2011.
Shanti Lal (PW/1), Sanjay Patel (PW/4), Hemant (PW/3), Mangi Lal (PW/5) and other persons rushed to intervene but subsequently accused persons ran away. Deceased took his last breath while being taken to the Police Station. On the intimation given by Shanti Lal (PW/1), Head Constable Pramod Tripathi (PW/7) written an FIR (Ex.P-1) on the same day at 7.30 p.m. against the appellants. Marg intimation (Ex.P-2) has also been lodged at 7.35 p.m.
3. During investigation SHO R.S. Vishwakarma (PW/8) on 23.09.2010 at 10.00 a.m. visited the place of incident. He gave notice (Ex.P-8) and inquired about the body of the deceased and prepared a Lash Panchnama (Ex.P-9) in the presence of witnesses. He handed over the body of the deceased along with letter (Ex.P-19) to the Constable Madan Singh (PW/9) for postmortem. Dr. D.P Agrawal (PW/6) conducted postmortem and gave postmortem report (Ex.P-19A). During the postmortem Dr. D.P.Agrawal (PW/6) took the clothes of the deceased i.e. blood stained shirt, underwear, full pant, belt and sealed the same, thereafter handed over to the concerning Constable for further examination. On 20.11.2010 SHO Police Station-Harsud gave a query letter. Dr. D.P. Agrawal gave response vide (Ex.P-20A) to the query on the same day.
4. On 23.09.2010 at around 9.15 a.m. SHO R.S. Vishwakarma (PW/8) prepared spot map (Ex.P-3) on the instance of Shanti Lal (PW/1). He seized blood stained soil and plain soil from the spot vide seizure memo (Ex.P-11). In further investigation DSP Virendra Singh Gurjar (PW/11) on 25.09.2010 seized shirt of white colour, sky blue and blue baniyan of Shanti Lal (PW/1), Dhan Singh (PW/20) and Hemant (PW/3) respectively produced by Shanti Lal (PW/1), the cloths were covered with the blood of the deceased vide seizure memo (Ex.P-4).
5. On 27.09.2010 DSP Virendra Singh Gurjar ( PW/11) arrested the accused persons namely Kallu alias Chandrashekhar and Ramu alias Ramlal 4 Cr. A. No. 1294/2011.
vide arrest memo (Ex.P-12 and Ex.P-13 respectively). On the same day he interrogated the accused persons Kalu alias Chanrashekhar and Ramu alias Ramlal. The accused Kalu alias Chandrashekhar disclosed that he hid the sickle (Darati) inside his house behind the water engine and the accused Ramu alias Ram Lal disclosed that he hid the knife in the ram of his brother's field situated behind his house vide disclosure memo (Ex.P-14 and Ex.P-15 respectively). On the same day he seized a sickle (Darati) on the instance of accused Kalu alias Chandrashekhar and a knife on the instance of the accused Ramu alias Ramlal and prepared seizure memo (Ex.P 16 and Ex.P-17 respectively). He seized sealed pack clothes of the deceased from constable Hemant Kumar being produced by him after obtaining the same from the hospital, vide seizure memo (Ex.P-22). On 10.11.2010 he arrested co-accused Sunil vide arrest memo (Ex.P-23). He sent the seized articles to Regional Forensic Science Laboratory Jhumar Ghat (Rau) Indore through letter (Ex.P-
26) of Superintendent of Police, Khandawa for chemical examination, wherefrom FSL Report (Ex.P-27) was received. Statement under Section 161 of Cr.P.C. was recorded by DSP Virendra Singh Gurjar (PW/11). After completion of investigation charge-sheet has been filed against the accused persons. The case was committed before the trial Court.
6. The learned trial Court framed charges against the appellants under Section 302 read with Section 34 of IPC and under Section 3(2)(5) of the Act 1989. The Court also framed charge under Section 25(1-Kh) (kh) of the Arms Act 1959 against the accused Ramu alias Ram Lal. Co-accused Sunil has been charges under Section 302 read with Section 34 of IPC in alternate charge 302 read with 120-B of IPC and Section 3(2)(5) of Act 1989.
7. The prosecution in order to prove the case has examined as many as 11 witnesses namely Shanti Lal (PW/1)and Dhan Singh (PW/2) who are eye witnesses and real uncle of the deceased. Hemant Singh (PW/3) Sanjay Patel 5 Cr. A. No. 1294/2011.
(PW/4) and Mangi Lal (PW/5) who are eye witnesses of the incident, Mangi Lal (PW/5) and Saleem (PW/10) who are witnesses of arrest memo, disclosure memo and seizure memo. Head constable Pramod Tripathi (PW/7) who recorded the FIR, Dr. D.P.Agrawal (PW/6) who conducted postmortem of the deceased. Constable Madan Singh (PW/9), who took the body of the deceased for postmortem. SHO R.S Vishwakarma (PW/8) and DSP Virendra Singh Gurjar (PW/11) who are investigating officers.
8. The accused persons have abjured their guilt and sought trial. After completion of prosecution evidence the accused persons have been examined under Section 313 of Cr.P.C. They have denied commission of offence and took the defence that they are innocent and they have falsely been implicated for the offence. The appellants/accused persons also took the defence that it was dark night at the time of incident and huge crowd was there. They heard a noise "maar diya, maar diya" which created hue and cry. They returned to their home. The accused persons have not examined any witness in their defence.
9. The learned trial Court after hearing the parties acquitted co-accused Sunil and convicted the appellants- Kalu @ Chandrashekhar & Ramu @ Ramlal with sentence as mentioned in paragraph No. 1.
10. Challenging the impugned judgment, learned counsel for the appellants submits that the judgment and finding is contrary to law, the facts and circumstances of the case. The independent witnesses have not supported the case. Shanti Lal (PW/1) and Dhan Singh (PW/2) being close relative of the deceased are interested witnesses. There are so many contradictions, omissions and exaggerations in their statements. Hence their statements are not reliable and trustworthy. Prosecution has failed to establish motive behind causing the death of the deceased. Memorandum and seizure witnesses have also not supported the case of prosecution. Therefore, sole statement of 6 Cr. A. No. 1294/2011.
investigating officer can not be relied upon. There was utter darkness at the time of incident and gathering of around 4-5 thousand peoples. Hence no one can be expected to easily see the incident in such situation. Learned counsel for the appellants further submits that there was inimical relation between appellants and Shanti Lal (PW/1), this is the reason the complainant Shanti Lal (PW/1) arraigned the appellants. Co-accused Sunil was acquitted by the trial Court while on the same set of evidence the trial Court erred in convicting the appellants. At the time of incident police personnel were present on the spot. The Police also tried to save the deceased but no police personnel has been examined to this effect, therefore prosecution case is doubtful. The prosecution has failed to prove the case against the appellants beyond reasonable doubts. Hence, the impugned judgment deserves to be set aside.
11. Per contra, learned Deputy Government Advocate for the respondent/state vehemently opposed the submissions and contended that the prosecution has proved its case beyond all reasonable doubts. Statement of eye witnesses are supported by medical evidence, hence, their statement can not be disbelieved merely on the basis of being close relative of the deceased. The trial Court has rightly convicted and sentenced the appellants. Hence, no case is made out for interference.
12. We have heard the learned counsel for parties and perused the record.
13. In this case first question arises as to whether the death of the deceased was homicidal or not?
14. Dr. D.P. Agrawal (PW/6) deposed that on 23.09.2010 Constable Madan Singh (PW/9) produced dead body of the deceased Kanti Lal along with letter (Ex.P-19) and father of the deceased Suraj Prasad, brother of the deceased Jitendra and Constable Madan Singh (PW/9) identified the deceased. He started the postmortem at around 8.45 a.m., there was rigor mortis in all 7 Cr. A. No. 1294/2011.
limbs. Mouth was closed and eyes were opened. Abdomen was distended. He found following injuries on the body of deceased:-
1.Incised wound, size 2.5x0.5 inch x bone deep on left side of lateral aspect of supra orbital margin,
2.Incised wound on nose in middle size 1x0.5x0.5 inch.
3.Incised wound on middle of chin size 0.5x0.5x0.5 inch.
4.Incised wound on neck from middle of front up to at the level of angle of mandible and extends border of sterno cleido mastoid mussel. 4.5x 2.5 x 2.5 inch Internal organ, Trachea oesophagus crecoid cartilage, cut and separated caririd artery and internal jugular vein were cut, muscles are sharply cut.
5.Incised wound on upper part of left chest size 0.5 x 0.25 inch,
6. Incised wound on Right shoulder joint size 2x.5x muscle deep. 7 Incised would on left palm. Posterior and lateral aspect size 3x1 inch bone deep. Tendon and muscles and muscle benoit two wounds are cut, all incised on antemortem in nature.
15. Dr. D.P. Agrawal (PW/6) further deposed that in internal examination of body he found that all chambers of the heart were empty. There was fracture of left frontal and maxillary bone and left first and second metacarpal bone. All injuries were antemortem and caused within 24 hours. He also stated that clothes of the deceased i.e blood stained white shirt with black lining, underwear, full pant and belt on the dead body were separately kept and sealed them in a bundle and handed over to constable Madan Singh (PW/9) for further examination.
16. Dr. D.P. Agrawal (PW/6) opined that the cause of death was hypovolumic shock due to excessive bleeding from the wounds. Duration of death is within 24 hours. He proved Postmortem report (Ex.P-19A). This witness has not been cross examined on his above statement by the defence.
8Cr. A. No. 1294/2011.
Therefore, there is no reason to disbelieve the statement of Dr. D.P Agrawal (PW/6), hence, his statement is trustworthy and reliable and it appears that the death of the deceased was homicidal in nature.
17. It is true that eye-witnesses Hemant (PW/3), Sanjay Patel (PW/4) and Mangi Lal (PW/5) have not supported the case of prosecution. They turned hostile. The trial Court have also not relied the aforesaid witnesses. Shanti Lal (PW/1) and Dhan Singh (PW/2) are also alleged to be eye witnesses of the incident and both the aforesaid witnesses being real uncle, are close relatives of deceased.
18. So far as the argument advanced by the learned counsel for the appellants, that there were police personnel and other persons present but they have not cited them as witness in the case. Independent eye-witnesses Hemant (PW/3) Sanjay Patel (PW/4) and Mangilal (PW/5) have not supported the case of prosecution. Apart from them both the witnesses Shantilal (PW/1) and Dhan Singh (PW/2) are close relative of the deceased are related witnesses and there are contradictions and omissions in their statements, hence testimony of both witnesses can not be believed.
Learned counsel for appellants has placed reliance upon the case of Harjinder Singh alias Bhola V State of Punjab [(2004) 11 SCC 253]; Ashok Kumar Choudhary and ors. V State of Bihar [(2008) 12 SCC 173] and Dalip Singh and ors. V State of Punjab AIR 1953 SC 364.
19. The Apex Court in the case of Harjinder Singh alias Bhola (Supra) observed as under:-
"11. another important factor is that Chowkidar Nahar Singh and (PW/ 3)'s servant Preetam Singh who gathered on the spot allegedly after the incident and were put on guard of the dead body were not examined. Though one of them was cited as witness, he was given up by the Pubic Prosecutor as being unnecessary. The 9 Cr. A. No. 1294/2011.
evidence of the persons who gathered immediately after the occurrence of the incident on hearing the alleged cries of (PWs 3 and 4) would have been a valuable piece of evidence to serve as corroboration of the account given by the direct witnesses, especially when the presence of the alleged eye-witnesses at the spot was too much of a coincidence. No reason is forthcoming for not examining them. This is another serious lapse which casts doubt on the prosecution case."
20. The Supreme Court in the case of Ashok Kumar Choudhary and ors. (Supra) observed as under:-
"9. In Dalip Singh Vs. State of Punjab , this Court had the occasion to deal with the question as to whether a relative is per se an "interested" witness. Dispelling the general impression that relatives were not independent witnesses, speaking for the Court, Vivian Bose, J., observed thus:
"26. A witness is normally to be considered independent unless he or she springs from sources which are likely to be tainted and that usually means unless the witness has cause, such as enmity against the accused, to wish to implicate him falsely. Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth."
21. Apart from that, in this respect Division Bench of this court in the case of Manoj Singh and Ors Vs State of Madhya Pradesh reported in ILR 2022 MP 911 opined as under:-
10Cr. A. No. 1294/2011.
"58. So far as the arguments advanced by the learned counsel for the accused that all the relevant witnesses are relative witnesses and the credibility of these witnesses cannot be believed is concerned, there is no force in the said argument".
The Hon'ble Apex Court in the case of Harbeer Singh Vs. Sheeshpal and others, reported in (2016) 16 SCC 418 has held as under :-
''18. Further, the High Court has also concluded that these witnesses were interested witnesses and their testimony were not corroborated by independent witnesses. We are fully in agreement with the reasons recorded by the High Court in coming to this conclusion.
19. In Darya Singh v. State of Punjab, AIR 1965 SC 328-1964 (7) SCR 397, this Court was of the opinion that a related or interested witness may not be hostile to the assailant, but if he is, then his evidence must be examined very carefully and all the infirmities must be taken into account. This is what this Court said: (AIR, P. 331, para
6). "6. There can be no doubt that in a murder case when evidence is given by near relatives of the victim and the murder is alleged to have been committed by the enemy of the family, criminal courts must examine the evidence of the interested witnesses, like the relatives of the victim, very carefully..... But where the witness is a close relation of the victim and is shown to share the victim's hostility to his assailant, that naturally makes it necessary for the criminal Courts to examine the evidence given by such witness very carefully and scrutinise all the infirmities in that evidence before deciding to act upon it. In dealing with such evidence, Courts naturally begin with the enquiry as to whether the said witnesses were chance witnesses or whether they were really present on the scene of the offence. ... If the criminal Court is satisfied that the witness who is related to the victim was not a chance-
witness, then his evidence has to be examined from the point of view of probabilities and the account given by him as to the assault has to be carefully scrutinised."
20. However, we do not wish to emphasise that the corroboration by independent witnesses is an indispensable rule in cases where the prosecution is primarily based on the evidence of seemingly interested witnesses. It is well settled that it is the quality of the 11 Cr. A. No. 1294/2011.
evidence and not the quantity of the evidence which is required to be judged by the Court to place credence on the statement.
21. Further, in Raghubir Singh v. State of U.P. (1972) 3 SCC 79, it has been held that the prosecution is not bound to produce all the witnesses said to have seen the occurrence. Material witnesses considered necessary by the prosecution for unfolding the prosecution story alone need to be produced without unnecessary and redundant multiplication of witnesses. In this connection general reluctance of an average villager to appear as a witness and get himself involved in cases of rival village factions when spirits on both sides are running high has to be borne in mind."
Thus, it is clear that although the evidence of related witnesses cannot be discarded/disbelieved on this sole ground but their evidence must be examined very carefully and all infirmities must be taken into consideration"
22. The Apex Court in the case of Bhag Chandra Vs State of Madhya Pradesh reported in AIR 2022 SC 410 held as below:-
"30. No doubt that there are minor discrepancies in the evidence of these PWs. It will be relevant to refer to the following observations of this Court in the case of State of Uttar Pradesh v. Krishna Master and Others (2010) 12 SCC 324: "15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the Court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the 12 Cr. A. No. 1294/2011.
evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.
23. The Apex Court in the case of Balvir Singh and ors Vs State of MP 2019 Cri.l.J.4100 opined thus:-
15. It is fairly well settled that the minor discrepancies in the evidence of the eye-witnesses do not shake their trust worthiness. In Appabhai and Another v. State of Gujarat 1988 Supp SCC 241, the Supreme Court held as under:-
"13............... The discrepancies which do not shake the basic version of the prosecution case may be discarded. The discrepancies which are due to normal errors of perception or observation should not be given importance. The errors due to lapse of memory may be given due allowance. The Court by calling into aid its vast experience of men and matters in different cases must evaluate the entire material on record by excluding the exaggerated version given by any witness. When a doubt arises in respect of certain facts alleged by such witness, the proper course is to ignore that fact only unless it goes into the root of the matter so as to demolish the entire prosecution story. The witnesses nowadays go on adding embellishments to their version perhaps for the fear of their testimony being rejected by the Court. The Courts, however, should not disbelieve the evidence of such witnesses altogether if they are otherwise trustworthy.........".
24. Therefore, it is clear that the evidence of related witness can not be discarded on this sole ground, but there statement must be examined very carefully and all infirmities should be taken into consideration. It is settled principle of law that it is not the quantity of witness but the quality of witness is required to prove a fact.
25. About the incident, Shanti Lal (PW/1) has stated that at the time of incident he went to Ghoda Pachad river to immerse the Idol of Ganpati. Dhan Singh (PW/2), Hemant (PW/3), Sanjay Patel (PW/4) and deceased Kanti Lal 13 Cr. A. No. 1294/2011.
also went along with him. At around 6-7 p.m., they were performing some pooja regarding Ganpati immersion (visarjan) then only co-accused Sunil came and started talking to deceased after taking him 20-21 steps away. Thereafter, accused Ramu and Kalu came. Ramu grabbed the deceased and the accused Kalu started stabbing the deceased with sickle. Accused Ramu assaulted the deceased with knife on his neck. deceased got wounds on his eyes, nose and neck and was bleeding. This witness Dhan Singh (PW/2) Hemant (PW/3) rushed to rescue him, then accused persons fled away, thereafter, they took the deceased Kantilal to Police Station-Harsud, till then the deceased had died.
26. Dhan Singh (PW/2) also stated that he went to Ghoda Pachad river with Shanti Lal (PW/1), Hemant (PW/3), Mangi Lal (PW/5) and deceased for Ganesh immersion at around 6-7 pm. By the side of river pooja aarti was going on, then co-accused Sunil came and took Kanti Lal almost 10 feet away and was talking to him. The accused Ramu took hold of deceased and Kalu with sickle stabbed him on his neck and thereafter Ramu assaulted him with knife on his neck. This witness rushed along with his friend to save the deceased. Kanti Lal fell down on the ground. While taking Kanti Lal (the deceased) to Police Station through Auto, he died. In paragraph 10 of cross- examination he stated that accused Kalu assaulted with sickle on his hands, near eye and nose.
27. Shanti Lal (PW/1) in Paragraph 12 of cross examination has denied that he (this witness) stole the door frame from the accused Kalu's field and at that time the accused Kalu and Ramu caught him red handed. Both the accused persons had fought with him. This witness also denied that the accused persons have been indicted in the case owing to this enmity. In paragraph 10 of cross examination this witness has denied that the place of incident is 150 feet away from the bank of river and he has not witnessed the 14 Cr. A. No. 1294/2011.
incident. This witness further denied the suggestion that the deceased was killed by the kanjar community of Harda due to his altercation with them. This witness admitted that people from other villages had also come to Ghoda Pachad river to immerse Ganpati idol and there was gathering of almost 4-5 thousand peoples.
28. In paragraph 4 of cross examination Dhan Singh (PW/2) denied that he and the deceased had fight with the kanjar community of Harda and after their fight on the same day returned to his village Bamangaon. This witness further denied that seeing the deceased injured on the place of incident he said that the kanjar community has killed him due to fight with them. In paragraph 5 of cross examination this witness stated that there were three Ganpati idols for immersion but he further said that third idol of Ganpati ji was not there. In paragraph 6 of examination he admitted that people from other villages had also come and they were around 4-5 thousands in number. Before immersion of Ganpati idol puja arti was being performed of all the idols. He (this witness), deceased, Shantilal (PW/1), Dhan Singh (PW/2) and Hemant (PW/3) were performing Ganesh pooja.
29. Dhan Singh (PW/2) in paragraph 7 of cross examination has stated that the accused Ramu stabbed the deceased with a knife on his stomach when he fell down on the ground. He denied that there was crowd at the time of incident and that at the place of incident there was no visibility due to darkness. In paragraph 9 of cross examination stated that he did not tell anything to Police at the place of incident. The Police had reached when the deceased was killed. Number of Police personnel was 2, they got afraid and ran away when the deceased was being killed by the accused persons. In paragraph 11, he denied the suggestion that before two days of incident Shanti Lal (PW/1) had stolen the door frame of accused Kalu from his agriculture field and he was caught by the accused Kalu and Ramu, who gave 15 Cr. A. No. 1294/2011.
him a beating and took him to Sarpanch. This witness also denied that the report was not lodged against the accused Shanti Lal (PW/1) on being told by the Sarpanch.
30. It is also argued by learned counsels for the appellants that the place where Ganesh immersion ceremony (Ganesh-Visarjan) was 150 feet away from the place where the incident occurred and the place of worship was crowded. At the time of incident it was dark night, hence, it was not possible for the witnesses to see the incident from the place where the ceremony was being carried out.
31. In this respect SHO R.S. Vishwakarma (PW/ 8) stated that during investigation on 23/09/2020, he inspected the spot of incident and prepared spot map (Ex.P-3) at the instance of Shantilal (PW/1). Shantilal (PW/1) also supported his statement. R.S. Vishwakarma(PW/8) has stated that he shown no. 1, in spot map (Ex.P-3) where the dead body was lying. Length and width of bridge was about 177 feet and 18 feet approx. There were guard rails on both the sides of the bridge. Ghodapachad river was flowing. In paragraph 3 of cross-examination he stated, he was informed that the companions of deceased were worshipping at the bank of river and he has not shown the place where witnesses were present at the time of incident. It appears from the spot map (Ex.P-3) that deceased and witnesses were doing arti of lord Ganesh on the bridge, before the immersion of idol. It also appears from the statement of Shantilal (PW/ 1) and Dhansingh (PW/ 2) that at the time of incident, the deceased, Shantilal (PW/1) and Dhansingh (PW/2) were worshipping lord Ganesh idol together. In paragraph 10 of cross-examination Shantilal (PW/1) stated that the place of incident was just 20-25 steps (further said 20-25 feet) away from the place where the worship was going on.
32. Dhansingh (PW/2) in paragraph 6 of cross-examination stated that on both the sides of the bridge there was crowd, arti and worship was going on.
16Cr. A. No. 1294/2011.
Shantilal (PW/1) in paragraph 10 and Dhansingh (PW/2) in paragraph 7 of cross-examination have denied that the place of incident is 100-150 feet away from the place of worship. Further both the witnesses have also denied that they have not seen the incident. In this situation it appears that at the time of incident the Ghodapachad river was flowing and it was full of water, place was crowded and idol of lord Ganesh were kept on the edges of bridge and at the same place people were worshipping. It also appears that deceased and his companions/ eye-witnesses were also worshipping at the same time the incident took place and both the aforementioned witnesses saw the incident, thus, the above arguments of the learned counsels for the appellants appears to be immaterial.
33. From the statement of eye witnesses Shanti Lal ( PW/1) and Dhan Singh (PW/2), it is clear that both the witnesses were present with the deceased on the spot at the time of incident. Both the witnesses categorically stated that appellant Kalu and Ramu have assaulted the deceased by means of sickle (Darati) and knife. Their statements are also supported by the postmortem report and the statement of Dr. D.P Agrawal (PW/6). Though some discrepancies are present in their statements, but those discrepancies are immaterial. Thus, minor discrepancies pointed out by learned counsel for the appellants fails into insignificance. It also appears from the statements of Shanti Lal (PW1) and Head constable (PW7) that within half an hour of the incident FIR (Ex.P-1) was lodged against the appellants. Statement of Shanti Lal (PW/1) is also supported by FIR (Ex.P-1). Hence, merely on the ground that being relative of the deceased, statementS of Shanti Lal (PW/1) and Dhan Singh (PW/2) can not be disbelieved. Hence, their statements is reliable and it appears that at the time of incident the appellants have assaulted the deceased by means of sickle(Darati) and knife.
17Cr. A. No. 1294/2011.
34. As per the statement of Dr. D.P Agrawal (PW/6) it is also clear that there were 7 incised wounds on the body of deceased and deceased had died of hypovolumic shock due to excessive bleeding caused by aforesaid injuries inflicted by the appellants.
35. SHO R.S.Vishwakarma (PW/8) deposed that he seized blood stained soil and plain soil from the spot vide seizure memo (Ex.P-11). Mangi Lal (PW/5) stated that Police seized blood stained soil from the spot and prepared a seizure memo ( Ex.P-11). Aforesaid statements of witnesses is appear to be reliable.
36. DSP Virendra Singh Gurjar (PW/11) deposed that on 27.09.2010, he arrested the accused Kalu alias Chandrashekhar and Ramu alias Ramlal Vide arrest memo (Ex.P-12 and Ex.P-13 respectively). He further deposed that in interrogation accused Kalu alias Chandrashekhar disclosed that, he hidden the sickle (Darati) behind water engine in his house. He prepared disclosure memo (Ex.P-14). Accused Ramu alias Ram Lal disclosed that he hidden the knife on ram of his elder brother's field situated behind his house, he prepared disclosure memo (Ex.P-15). He also deposed that on the same day he seized a sickle (Darati ) on the instance of the accused Kalu on being produced by accused himself from his house vide seizure memo (Ex.P-16) and he seized the knife on the instance of the accused Ramu being produced by the accused himself from the ram in the field behind his house.
37. Mangi Lal (PW/5) has not supported the prosecution case and denied the factum of arrest, disclosure statement and seizure of weapons from the accused persons, but he admitted his signature on arrest memo (Ex.P-12, Ex.P-13), disclosure memo (Ex.P-14 Ex.P-15) and seizure memo (Ex.P-16 and Ex.P-17). The prosecution has declared him hostile and in cross examination he has not supported the factum of arrest of accused persons, their disclosure statement and seizure of weapons from accused persons.
18Cr. A. No. 1294/2011.
38. Saleem (PW/10) stated that Police has arrested the accused Kalu alias Chandrshekhar and Ramu alias Ramlal and prepared arrest memo (Ex.P-12 & Ex. P-13). He further said that at the time of interrogation by Police the accused Kalu alias Chandrashekhar disclosed about knife and stated that he has kept the knife in his yard. Police prepared a disclosure memo (Ex.P-14) and at the time of interrogation accused Ram Lal disclosed that he has kept the sickle inside his house. Police has prepared seizure memo (Ex.P-15). He also stated that he does not know what weapon seized from the accused Ram Lal and Kalu has also not supported the prosecution case and the prosecution has declared him hostile and cross examined him. In paragraph 3 of cross examination he denied the suggestion of prosecution that accused Chandrashekhar disclose about Sickle (Darati) and the accused Ram Lal disclosed about knife. He further denied that the accused Chansrashekhar produced sickle (Darati) from his house and the accused Ramlal produced a knife behind his house. Therefore, it clear that this witness has also not supported the prosecution case but has admitted his signature on arrest memo (Ex.P-12 & 13) disclosure statement (Ex.P-14 & 15) and seizure memo (Ex.P-16&17).
39. DSP Virendra Singh Gurjar (PW/11) clearly deposed about arrest of the accused. Disclosure statement given by them and weapons seized on the instance of accused persons. Though Mangilal (PW/5) and Saleem (PW/11) have not supported his statement but they have admitted their signature on the arrest memos, disclosure memos and seizure memos. There is no evidence which proves that the DSP Virendra Singh Gurjar (PW/11) was prejudiced against the accused persons or he was interested in falsely implicating them in the offence. He is an Investigating Officer, hence, his statement can not be disbelieved merely on the ground of Police officer. Hence, his statement is reliable and it is clear that on the instance of accused 19 Cr. A. No. 1294/2011.
persons DSP Virendra Singh Gurjar (PW/ 11) seized the sickle (Darati) from accused Kalu alias Chandrashekhar and a knife from the accused Ramu alias Ram Lal.
40. Virendra Singh Gurjar (PW/11) stated that on 25.09.2010 he seized a blood stained shirt of Shanti Lal (PW/1) a bood stained shirt of Dhan Singh (PW/2) and a baniyan of Hemant (PW/3) from Shanti Lal (PW/1) vide seizure memo (Ex.P-4) Shanti Lal (PW/1) also stated that he, Dhan Singh (PW/2) and Hemant (PW/3) took the deceased to the hospital. At that time their clothes had blood spots of the deceased. He produced aforesaid blood stained clothes before Police and Police have seized the aforesaid clothes and prepared a seizure memo (Ex.P-4). No amount of cross examination could cause a scratch on the correctness of their statements. Hence, the statement of both the witnesses is reliable.
41. Virendra Singh Gurjar (PW/11) deposed that he seized a sealed packed clothes of the deceased produced by Constable Hemant from hospital vide seizure memo (Ex.P-22). Constable Madan Singh (PW/9) also supported averment of the said witness in his statement. Hence, statements of both the witnesses are reliable. Virendra Singh Gurjar (PW/11) further stated that he sent the seized weapons to the doctor who conducted postmortem of the deceased for opinion along with letter (Ex.P-20). Dr. D,P. Agrawal (PW/6) deposed that on 20.11.2010 he received sickle (Darati) and knife along with letter (Ex.P-20). He opened the sealed weapons and examined them and subsequent to the examination he expressed the opinion that the injuries found over deceased's body were caused by both weapons. After examination he resealed sickle (Darati) and knife and resent to the Police. He proved his report (Ex.P-20A). Aforesaid statement of his witness is not questioned by the other side. Hence, there is no reason to disbelieve the aforesaid witness.
20Cr. A. No. 1294/2011.
42. Virendra Singh Gurjar (PW/11) stated that he sent the seized articles in the case to Forensic Science Laboratory along with letter (Ex.P-26) for chemical examination, wherefrom FSL report (Ex.P-27) was received. This witness in paragraph 9 of cross examination admitted that he has not mentioned in seizure memo (Ex.P-16&17) that he sealed the seized articles and has also not mentioned that the weapons were blood stained. Dr. D.P.Agrawal (PW/6) also admitted in paragraph 7 of cross examination that there were no blood stain on sickle (Darati) and knife. Therefore, it appears that both the aforesaid witnesses have not seen blood stains on the weapons, but if the witnesses had not seen blood stains on the seized weapons by their naked eyes then it can not be presumed that there was no blood stain on the weapons but it can be examined in the concerning laboratory.
43. From the statement of Dr. D.P Agrawal (PW/6) it also appears that the seized weapons produced before him in sealed condition and subsequent to the examination he resealed the weapons and resent to the Police. From the perusal of FSL report (Ex.P-27), it is clear that the seized articles were presented before Regional Forensic Science Laboratory, Jhumarghat (Rau), Indore in sealed packet. Hence, it is clear that the seized articles have been sealed by Police and the concerning doctor. Therefore, not mentioning about fact of sealing of seized articles in seizure memo, no adverse inference can be drawn.
44. As per FSL report (Ex.P-27) human blood was found on blood stained soil (article-A) seized from the spot, shirt, full pant, belt and underwear (Article E1 to E4) seized from the body of deceased, shirt ( Article F1) of Shanti Lal (PW1), shirt(Article F2) of Dhan Singh (PW/2) Baniyan (article F3) of Hemant (PW/3) were seized from Shanti Lal (PW/ 1) and blood was found on sickle (Darati) (article-D) seized from the accused Kalu alias Chandrashekhar and on the knife (article-C) seized from accused Ramu alias 21 Cr. A. No. 1294/2011.
Ramlal. Blood group could not be traced due to negligible amount of blood on seized sickle and knife. Since only blood was found on the weapons seized from the accused persons, therefore, it can not be said with certainty that the seized weapons had been used in the crime, hence, the trial Court has erred in drawing an inference that the use of the weapons in committing the crime is substantiated. But the case is based on the evidence of eye witnesses, hence, the confirmation of the presence of human blood on the weapons is not material.
45. So far as the argument from the appellants that there was no motive of the appellants to kill the deceased, in this respect as per prosecution case prior to 3-4 days of the incident, deceased had stopped the accused persons from playing cards on the field then the accused persons had altercation with him and warned him. Owing to this animosity the accused persons have killed the deceased.
46. The trial Court from the statement of Shanti Lal (PW/1) and Dhan Singh (PW/2) found that prior to 3-4 day of incident, deceased had stopped the accused persons to play the cards beside his house on which the accused persons had quarreled with the deceased and warned him about dire consequences. Therefore, the accused persons had motive to kill the deceased. Shanti Lal (PW/1) and Dhan Singh (PW/2) deposed in their statement that the accused quarreled with the deceased and gave him warning on being stopped by the deceased to play cards. Therefore, it is clear that the accused persons had motive to kill the deceased, hence, the trial Court has rightly relied on the statement of both the aforesaid witnesses and held that the accused persons had motive to kill the deceased.
47. In the foregoing discussions it is clear that the statement of eye witnesses Shanti Lal (PW/1) and Dhan Singh (PW/2) is fully supported by medical evidence. Therefore their statements is reliable and it is clear that at 22 Cr. A. No. 1294/2011.
the time of incident the accused persons had inflicted injuries to deceased by means of deadly weapons i.e. sickle (Darati) and knife. Due to aforesaid injuries deceased had died. Looking to the nature of injuries inflicted on the deceased and the weapons used in the offence, it is also clear that the accused persons intentionally caused injuries to the deceased to commit his murder. Therefore, the trial Court has not committed any error in appreciating evidence on record. The trial Court has rightly convicted the accused persons under Section 302 read with Section 34 of IPC and sentenced them properly. The appeal filed by the appellants/ accused persons deserves to be dismissed.
48. Therefore, the appeal filed by the appellants stands dismissed and the conviction and sentence passed by the trail Court against the accused persons is hereby affirmed. The appellants/accused persons who are in jail be intimated about the outcome of their appeal through the concerned jail superintendent.
A copy of this judgment along with record of trial Court also be sent back to the trail Court for information and compliance.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
MISHRA
ARVIND KUMAR MISHRA
2022.09.29 16:05:06 +05'30'