Madhya Pradesh High Court
Lalit Yadav vs The State Of M.P. on 13 July, 2017
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Cr.A.No.1560/2003
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Appeal No.1560/2003
Lalit Yadav S/o Ram Singh,
Aged about 24 years,
R/o Yadav Dharma Shala, Barkhedi,
District Bhopal.
Appellant
Vs.
State of Madhya Pradesh, through P.S. Jahangirabad,
Dist. Bhopal (M.P)
Respondent
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Present: Hon'ble Shri Hemant Gupta, Chief Justice
Hon'ble Shri Justice C.V. Sirpurkar
.........................................................................................................
Shri Siddharth Datt, counsel for the appellant.
Shri Bramdatt Singh, Government Advocate for the
respondent/State.
........................................................................................................
JUDGMENT
(13-07-2017) Per C.V. Sirpurkar, J:
1. This criminal appeal under Section 374 (2) of the Cr.P.C. filed on behalf of the appellant/accused Lalit Yadav is directed against the judgment dated 18.8.2003 passed by the Court of IIIrd Additional Sessions Judge, Bhopal in Sessions Trial No. 322/2002, whereby accused/appellant Lalit Yadav was convicted and sentenced as hereunder:
Sr. Provision of Imprisonment Fine Sentence in No Law default of 2 Cr.A.No.1560/2003 . fine 1. S. 302 IPC Life Rs. 3,000/- RI for 6 Imprisonment months
2. 25 (B) of RI for 1 year Rs. 1,000/- RI for 3 Arms Act months 3. S. 27 of RI for 1 year Rs. 1,000/- RI for 3 Arms Act months All substantive sentences of imprisonment imposed upon him were directed to run concurrently.
2(a) In all, there were six accused persons namely Lalit Yadav, Altaf @ Firoz, Pappu Chiman, Shadab, Anjum and Shahid. Since, Shadab, Anjum and Shahid were below 18 years of age, the charge-sheet against them was filed before the Juvenile Justice Board. Charge-sheet in respect of accused persons Lalit Yadav, Altaf and Pappu Chiman was filed in the Court Judicial Magistrate First Class. During the course of proceedings, Pappu Chiman was declared an absconder and the trial proceeded only in respect of accused Lalit Yadav and Altaf @ Firoz. Accused Altaf @ Firoz was acquitted of all charges and accused Lalit Yadav has been convicted and sentenced as stated above. Later accused Pappu Chiman was arrested and produced before the trial Court. A separate trial was conducted in respect of Pappu Chiman and he was acquitted for offence under Section 302 read with section 34 of the I.P.C. by XIII Additional Sessions Judge, Bhopal by judgment dated 18.11.2008.
(b) The prosecution case before the trial Court may be summarized as hereunder: The first informant Dalchand ran a 3 Cr.A.No.1560/2003 betel-leaf shop in a shack (Gumti) on the platform of Radha Krishna Temple at Barkhedi, District Bhopal. Accused Lalit Yadav, who lives nearby, wanted to remove his Gumti and set-up a shop for selling samosas and kachauries; therefore, they had quarreled several times before the date of the incident. Accused Lalit Yadav had also stabbed Prakash, younger brother of first informant Dalchand, with knife about two years before the date of the incident. Deceased Chhotu was brother-in-law of Prembali, brother of Dalchand. He lived with Dalchand along with his wife.
(c) At about 6:15 or 6:30 a.m. on 6.7.2002, deceased Chhotu had gone to the milk outlet situated near Dalchand's Gumti to fetch milk. He returned and reported to Dalchand that accused Lalit Yadav accompanied by two unknown boys, was standing near Dalchand's Gumti and they were calling Dalchand. They said that Neetu wanted to meet Dalchand. Thereafter, Dalchand went to his Gumti; however, upon seeing Dalchand, accused Lalit Yadav went inside an alley. His companions, who were in fact co-accused persons Altaf and Pappu Chiman were standing there armed with knifes. They told Dalchand that Neetu was calling him in the alley; however, Dalchand noted that Neetu was nowhere to be seen; therefore, suspecting foul play, he returned home on the pretext of returning after putting his slippers on. He send Chhotu to tell Lalit that Dalchand had gone somewhere.
(d) When Chhotu went and told Lalit that Dalchand had gone somewhere, he got enraged and filthily abusing Chhotu alleged that he had warned Dalchand and had allowed him to 4 Cr.A.No.1560/2003 escape; therefore, he would kill Chhotu. Accused Lalit Armed with a big sword and his companions Pappu Chiman and Altaf armed with knives ran behind Chhotu. Chhotu ran in the Lal Building alley and Lalit, Altaf and Pappu Chiman chased him. Dalchand who was watching them from a distance ran behind them along with his younger brother Prakash. Juveniles Shadab and Anjum armed with knives also ran behind Chhotu. Near Papad Wali Dukan Pappu, Shahid and Altaf intercepted deceased. There was a scuffle between them. Meanwhile, Lalit Yadav caught up with Chhotu and struck a blow to the neck of deceased Chhotu with sword. As a result, he fell down in the alley. Accused Lalit delivered another blow to the head of the deceased. After writhing in pain for a while, he died on the spot. The accused persons ran towards Raisen Road. Prakash, brother of Dalchand, chased them but they escaped. Dharmendra @ Dharmu, Rohtab and other persons were also present on the spot. Dalchand lodged First Information Report at about 6:50 a.m. at Police Station Jahagirabad.
3. The trial Court framed a charge under Section 302 read with Section 34 of the I.P.C and Sections 25 (B) and 27 of the Arms Act against accused Lalit and under Section 302 read with Section 34 against accused Altaf. Both the accused persons abjured the guilt and claimed to be tried. In his examination under Section 313 of the Cr.P.C., Lalit took the plea of alibi. He stated that on the date of the incident, his maternal uncle (phuphaji) Ganeshram was seriously ill; therefore, he and his family had gone to tend him. When he 5 Cr.A.No.1560/2003 returned, he was informed about the visit by the police; therefore, he had appeared before the Police Station Jahagirabad on 18.7.2002 of his own accord. He has been falsely implicated in the case due to previous enmity. The accused had examined as many as five witnesses in defence to prove that two unknown boys had altercation with deceased Chhotu and they had killed him and also that on the date of the offence appellant had gone to see his Phoophaji.
4. The trial Court recorded findings to the effect that there was previous enmity between accused Lalit and first informant Dalchand on account of the fact that accused Lalit wanted to dispossess Dalchand from the place occupied by him on the platform of Radha Krishna Temple and set up his own shop. Due to aforesaid enmity, there was an incident of stabbing involving accused Lalit and Prakash (PW-4). On the date of offence, accused Lalit accompanied by Altaf and Chiman had gone to Dalchand's Gumti with intention of killing him; however, since deceased Chhotu had facilitated escape of Dalchand from the spot, accused Lalit got enraged and he chased and delivered fatal blows with a sword to vital parts of deceased Chhotu's body resulting in his death. He was also held guilty of possessing and illegally using sharp edged weapon of prohibited dimensions. The statement of defence witnesses and plea of alibi taken by accused Lalit were held not to be reliable. Consequently, the accused Lalit was convicted and sentenced as stated above but accused Altaf was acquitted for want of any evidence.
6 Cr.A.No.1560/20035. The findings recorded by the trial Court have been assailed before us by learned counsel for the appellant mainly on the ground that the trial Court has failed to properly appreciate the evidence and grievously erred in disbelieving the statements of defence witnesses. The trial Court also failed to take note of the fact that no independent witnesses had supported the prosecution story; therefore, it has been prayed that the appellant Lalit be acquitted.
6. On perusal of the record and due consideration of rival contentions, the Court is of the view that this criminal appeal against conviction filed on behalf of the appellant Lalit Yadav, must fail for the reasons hereinafter stated:
7. Dr. B.K. Athwal (PW-5), who had conducted post- mortem examination upon the dead body of the deceased, has stated that deceased had two incised wounds and three abrasions. He had one incised wounds on neck admeasuring 17x7 c.ms, which was 6 c.ms deep. The wound had cut vertebra no.1 and upper part of vertebra no.2 and had also cut the spinal-cord. The other incised wound was on the left side of the scalp on parietal region admeasuring 12x1 cm. Apart from aforesaid two incised wounds there were three abrasions on forehead and outside right eye. In the opinion of the doctor, the deceased had died due to shock and hemorrhage as a result of injuries sustained by him on head and neck. These injuries were caused by a heavy and sharp edged weapon. The death was homicidal in nature. These injuries could have been caused by the sword seized from the possession of the appellant. There is no reason to disbelieve 7 Cr.A.No.1560/2003 the testimony of this independent expert witness. No serious challenge has been mounted on behalf of the appellant with regard to the medical evidence before us either; therefore, it is proved beyond reasonable doubt that the deceased had died as a result of incised wounds inflicted upon his head and neck, which could have been caused by the sword seized from the possession of appellant Lalit Yadav.
8. Now the question that remains for consideration is whether injuries were caused by appellant Lalit? and if yes, whether they were caused with the intention of causing death of deceased Chhotu?
9. First informant Dalchand (PW-6) has testified that he runs a betel leaf shop on the platform surrounding Durga Devi Temple. Appellant Lalit's house is situated near his shop. Appellant Lalit wanted to remove his shop; therefore, there was a quarrel with him in this regard. As a result, appellant Lalit and co-accused Pappu has beaten his younger brother Prakash. He had lodged the report in the police station in this regard. Aforesaid statement is corroborated by Prakash (PW-4).
10. Dalchand (PW-6) has further stated that on 6.7.2002, his brother-in-law Chhotu had gone to a grocery shop situated near his betel leaf shop to fetch milk. Lalit, Anjum and Shadab were waiting at that place. They told Chhotu that Lalit was calling Dalchand in the alley. Chhotu returned and conveyed the message of appellant Lalit to Dalchand, whereon Dalchand went to his shop. Upon seeing Dalchand, Lalit went inside the alley. Dalchand observed that Neetu was 8 Cr.A.No.1560/2003 not around; therefore, on the pretext of returning after wearing his slippers, he returned home. He told Chhotu to go and tell Lalit that Dalchand had gone somewhere. Thereafter, he concealed himself and watched what happened. Chhotu went to Dalchand's Gumti where Lalit, Anjum and Shadab were standing. He told them that Dalchand had gone somewhere, whereon Lalit filthily abused Chhotu and accused him of facilitating escape of Dalchand. He threatened to kill Chhotu. At that time, Shadab and Anjum were armed with knives and Lalit was armed with a sword. All three rushed to kill Chhotu. Chhotu ran towards Lal Building. Dalchand also ran behind them. He called his father Button Lal. Thereafter, Lalit delivered a blow to Chhotu's head with a sword and the other two boys were entangled with Chhotu. Lalit delivered another blow to neck of deceased Chhotu; whereon, deceased Chhotu fell down. The accused persons ran towards Patra. During the incident, Dalchand's father Batanlal and younger brother Prakash also arrived on the spot and Dharmendra @ Dharmu and Rohtab were also present. Rohtab has since expired.
11. Prakash, younger brother of Dalchand, has stated that on 6.7.2002 at about 6:30 a.m., Dalchand called out that Lalit is following Chhotu; therefore, he ran behind Dalchand. Dalchand was running in the alley. He followed Dalchand. He saw that Lalit had a sword in his hand and two of his companions had a knives. They ran behind the accused persons, three other persons were also with accused persons. Accused persons crossed the road and railway track and 9 Cr.A.No.1560/2003 escaped. When he returned, he saw Chhotu was lying dead near Lal Building in-front of Papad Wala Shop. Chhotu had suffered injuries on the head and neck. Thereafter, Dalchand had gone to lodge the report to police.
12. Button Lal (PW-8) father of first informant Dalchand, has also stated that about 3-4 months before the date of his testimony at about 6:00-6:30 a.m., he was at home. Dalchand shouted "Run, Chhotu is being killed"; whereon, he reached the Papad Wali Shop and saw that Chhotu was lying in the prostrate condition. Lalit had run away after delivering a blow to his neck. His younger son Prakash had chased Lalit. At that time, Dalchand had told him that Lalit etc. had come to kill him but they had killed Chhotu.
13. It may be noted at the outset that First Information Report of the incident was lodged within 20 minutes of the incident in the police station that was about 1 km. from the spot. It is true that prosecution has failed to prove the report lodged by Prakash against Lalit and Pappu but on the basis of their oral testimony, which has remained practically unchallenged, it is proved beyond doubt that there was previous enmity between appellant Lalit and Dalchand and his family members because Lalit wanted to remove the Gumti being run by Dalchand near appellant's house on the platform of the temple. It is true that independent eye witness Dharmendra @ Dhammu (PW-10) has turned hostile; however, prosecution case has been supported by first informant Dalchand, Prakash (PW-4) and Button Lal (PW-
8). Prakash and Button Lal had reached the spot immediately 10 Cr.A.No.1560/2003 after the incident and Dalchand had told them that Lalit and his companions had run away after inflicting fatal blows with a sword to the deceased. They also saw deceased lying in the alley in front of Papad Wala Shop in an injured condition.
14. It is true that all three witnesses namely Dalchand, Prakash and Button Lal were related to Chhotu; however, there is distinction between a related witnesses and an interested one. In the case of related witnesses, it is highly improbable that such witnesses would allow the real of culprit to go scot free and would falsely implicate an innocent person; however, it is prudent to closely scrutinize the testimony of such related witnesses. If it is proved that such witness was present on the spot, he should not be disbelieved on the ground of relationship alone. In the case at hand, the time of the incident was about 6:30 a.m.. The place of the incident was near the residence of prosecution witnesses. At that time it would be natural for all family members to be at home; therefore, their presence on the spot was quite natural.
15. It is true that Dharmendra @ Dharmu has not supported the prosecution case; however, it may be noted that appellant Lalit had a unsavory reputation; therefore, it is not unexpected that an independent witness would not support the prosecution. Other eye witness Rohtab is said to have died. In these circumstances it cannot be said that the testimony of Dalchand, Prakash and Button Lal was dented by failure of independent witnesses to support them.
16. Defence has examined five witnesses. These are Ashraf @ Bhaiya (DW-1), Vijay (DW-2), Ajab Singh (DW-
11 Cr.A.No.1560/20033), Karan Singh (DW-4) and Draupati Bai (DW-5). Out of aforesaid five witnesses, three witnesses Ashraf (DW-1), Vijay (DW-2) and Draupati Bai (DW-5) are said to be eye witnesses. Draupati Bai (DW-5) is Papad Wali Bai and owns the Papad Wala Shop in front of which deceased Chhotu was murdered. All aforesaid three eye witnesses have stated that two unknown persons armed with big knifes had chased deceased Chhotu down and had delivered blows with knife to him, resulting in his death. Remaining two witnesses namely Vijay (DW-2) and Ajab Singh (DW-3) are witnesses to the fact that on the date of the offence, appellant Lalit Yadav had gone to see Ganesh Ram, father of Ajab Singh (DW-3), who was ill. Later Ajab Singh's father Ganesh Ram had expired. They have further stated that the deceased had stayed there for 7-8 days.
17. However, it may be noted that the statement of prosecution witnesses Dalchand, Prakash and Button Lal are corroborated by the first information report and medical evidence. The first information report was lodged within 20 minutes of the incident, which had taken place about 1 km. from police station Jahagirabad. In these circumstances, it appears inconceivable that the first informant Dalchand, who was brother-in-law of the deceased; and as such, was a close relative, would exonerate the real culprits and falsely implicate the appellant solely on the ground of previous enmity. Moreover, during investigation, a sword was seized at the instance of appellant Lalit Yadav from his hotel. The medical witness Dr. B.K. Athwal (PW-5) has stated that the 12 Cr.A.No.1560/2003 injuries found of the person of the deceased could have been caused by the sword like knife sent to him by the police. In these circumstance, it would not be prudent to rely upon the statement of the defence witnesses.
18. Learned defence counsel had pointed out before the trial Court certain deficiencies in the investigation. It was argued that deceased Chhotu's wife, who is said to be living along with Dalchand and his family, was not examined. Likewise, no attempt was made to take the statements of Neetu who is said to be a friend of Dalchand. It has also been stated that the panchayatnama of the dead body does not bear signature of Prembali, brother of Dalchand. It was also argued that in order to destroy evidence, the spot where the dead body of deceased Chhotu was lying was washed after the incident.
19. We may see in this regard that this case is not based upon circumstantial evidence. It is based upon sound footing of eye witness account. It is not the case of the prosecution that Chhotu's wife or Neetu were present on the spot; therefore, their examination was unnecessary. The fact that Rambali's signatures were not taken on the Panchnama does not affect the credibility of the prosecution at all . It is true that the blood spilled on the spot should not have been wiped out; however, where the guilt of the accused is proved beyond reasonable doubt on the basis of direct evidence, the prosecution case cannot be thrown out simply on the ground of such mistake in investigation.
13 Cr.A.No.1560/200320. In aforesaid circumstances, there is no reason to disbelieve the testimony of eye witnesses Dalchand, Button Lal, Prakash and Prembali. There is also no ground to doubt the testimony of the investigating officer Anup Jain (PW-11) and Dr. B.K. Athwal (PW-5).
21. On the basis of aforesaid testimony, we are of the view that the prosecution has succeeded in proving beyond reasonable doubt that the blows caused to the deceased resulting in his death by a sharp and heavy object were in fact caused by appellant Lalit Yadav with the sword seized in the case at his instance.
22. Now the only question that remains for consideration is whether the act of the appellant would fall within the ambit of culpable homicide amounting to murder or that of culpable homicide not amounting to murder?
23. In this case, there was previous enmity between appellant Lalit on one hand and Dalchand and his family member on the other because the appellant wanted to dislodge the first informant from the spot where he had set up his Gumti. There were also previous incidents of violence between two parties. In this backdrop, the appellant with two other persons armed with a deadly weapon like sword had gone to Dalchand's Gumti and had called him outside his house. However, when he realized that deceased Chhotu, who was living along with Dalchand and his family, had warned Dalchand regarding the danger and had facilitated his escape, he was enraged and rushed to kill Chhotu. When Chhotu ran away, he chased him and hunted him down. He delivered 14 Cr.A.No.1560/2003 three blows with full force, one of them upon the neck of the deceased. He delivered two more blows. As a result, the deceased died on the spot. Taking aforesaid circumstances cumulatively into account, it may safely deduced that the intention of the appellant was to kill deceased Chhotu. There was neither any quarrel between the appellant and the deceased nor was there any provocation offered on the spot by the deceased. In these circumstance, it is proved beyond reasonable doubt that the appellant had delivered blows with sword to vital part of the body of the deceased with intention to kill him. The act of the appellant would also not fall within the purview of any of the exceptions enumerated under Section 300 of the I.P.C; therefore, his act would fall under the category of culpable homicide amounting to murder and would be punishable under Section 302 of the I.P.C.
24. In aforesaid view of the matter, the trial Court was fully justified in convicting appellant Lalit Yadav of the offence punishable under Section 302 of the I.P.C. for committing murder of deceased Chhotu; as such, no interference in the impugned judgment is warranted and this appeal is liable to fail.
25. Consequently, this criminal appeal against conviction filed on behalf of the appellant Lalit Yadav is dismissed. The impugned judgment dated 18.8.2003 passed by the Court of IIIrd Additional Sessions Judge, Bhopal in Sessions Trial No. 322/2002 convicting the appellant and sentencing him as stated above, is affirmed.
15 Cr.A.No.1560/2003 {Hemant Gupta} {C.V. Sirpurkar}
ahd Chief Justice Judge
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Cr.A.No.1560/2003
HIGH COURT OF MADHYA PRADESH : AT JABALPUR
Criminal Appeal No.1560/2003
Lalit Yadav
Vs.
State of Madhya Pradesh
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JUDGMENT For consideration {C.V. Sirpurkar} JUDGE /06/2017 Hon'ble Shri Chief Justice Hemant Gupta {Hemant Gupta} Chief Justice Post for: /06/2017 {C.V. Sirpurkar} JUDGE