Madhya Pradesh High Court
Khuman @ Khumansingh And 2 Ors. vs The State Of Madhya Pradesh on 18 December, 2023
Author: Anil Verma
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No 977 OF 2011
BETWEEN:-
1. KHUMAN @ KHUMANSINGH S/O
VEERSINGH BHIL, AGE- 36 YEARS
OCCUPATION AGRICULTURIST
2. KEHARSINGH S/O VEERSINGH BHIL,
AGE- 40 YEARS OCCUPATION
AGRICULTURIST
3. SADIK S/O VEERSINGH BHIL, AGE- 32
YEARS OCCUPATION
AGRICULTURIST
ALL RESIDENT OF VILLAGE
KHATTAL P.S. KATTIWADA, DISTRICT
ALIRAJPUR (MP)
.....APPELLANTS
(BY SHRI BHAGWAN SINGH YADAV AND MS SHRADDHA DIXIT -
ADVOCATES)
AND
THE STATE OF MADHYA PRADESH
THROUGH POLICE STATION - KATTIWADA
DISTRICT ALIRAJPUR (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI AMIT RAWAL - GOVERNMENT ADVOCATE)
Reserved on : 7/12/2023
Pronounced on : 18/12/2023
2
This appeal having been heard and reserved for orders, coming
on for pronouncement this day, the JUSTICE ANIL
VERMA pronounced the following:
JUDGMENT
The appellants have preferred present criminal appeal under Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment of conviction dated 1/8/2011 passed by the Second Additional Sessions Judge,( Fast Track Court) Jobat District Alirajpur (M.P.) in Sessions Trial No. 114/2010 whereby the appellants have been convicted and sentenced as under:-
Conviction sentence
Section u/s Act Imprisonment fine imprisonment
in lieu of fine
302/34 IPC Life Rs. 1,500/- 6 months
imprisonment
2. The facts of the case in brief are that on 1.3.2010 complainant Raman (PW-4) lodged an FIR (Ex.P-15) at police station Kattiwada by stating that in the night he alongwith Haria and Basnibai went at village Khattal for seeing Holi function. At that time accused persons objected and asked "why you persons belonging to Dhanuk community came here for seeing Holi". Thereafter some quarrel took place between them. When complainants Raman, Haria and Basnibai were returning to their village, on the way accused persons started beating Haria by means of Falia and wooden sticks. Accused Khuman assaulted Haria by means of 3 Falia which hit him on the right side of head, Keharsingh also assaulted Haria by Falia which was also hit on the right side of his head and other co-accused also assaulted Haria by wooden sticks. Looking to the aforesaid incident, complainants Raman and Vasnibai ran away from the spot and narrated the incident to Namalia. Then they came with Namalia and search Haria. Dead-body of Haria was found near Kunda Nala. Accordingly offence has been registered.
3 Prosecution story in further is that Dr. N.S. Dawar (PW-10) performed the postmortem of the deceased and as per autopsy report four cut injuries were found on the occipital area, ears left side of the forehead and his death was homicidal in nature. The investigating Officer S.S. Bais (PW-11) went to the spot and prepared the Laas Panchanama of deceased and also prepared the spot map. He recovered blood stained and simple soil from the spot and on the basis of discovery statement of accused persons he recovered two different Falias from possession of accused Khumansingh and Kehar Singh. He also recovered blood stained shirt of deceased. All seized articles were sent to FSL Sagar for its chemical examination.
4. After due investigation, charge sheet was filed before CJM Alirajpur who has committed the case to the court of Sessions which was later on transferred to the court of Second Additional Sessions Judge Jobat for trial.
5 The prosecution examined as many as 11 witnesses while defense did not examine any witness. The trial Court after appreciating the evidence available on record, convicted and sentenced the appellants as mentioned herein above. Being aggrieved by the judgment of conviction 4 and order of sentence, the appellants have preferred present appeal before this court.
6 Learned counsel for the appellants contended that the judgment of the trial Court is contrary to law and facts on record. It is neither legal nor proper nor correct. The trial court has not considered that the FIR was lodged by delay and no explantation of the delay has been given by prosecution. There is material contradiction in the statements of eye witnesses Basanibai (PW-3) & Raman (PW-4). The incident had taken place in the dark night. No independent witness has been examined by the prosecution. Appellants have already suffered jail incarceration for more than 13 years. The prosecution failed to prove its case beyond reasonable doubt. Conviction of the appellants is bad in law. He placed reliance upon judgment of Hon'ble Apex court in case of Jadu Yadav Vs. State of Bihar reportd in 1994 Cri.L.J. 1209. Hence, he prays that the appeal be allowed and the impugned judgment of conviction and sentence passed by the trial Court be set aside and appellants be acquitted from the charges.
7. Per contra, learned counsel for the respondent / State opposes the prayer by supporting the impugned judgment passed by the trial Court and prays for dismissal of this appeal by submitting that the learned trial court on proper appreciation of evidence has rightly convicted the appellants and same does not call for any interference. Hence the present appeal deserves to be dismissed.
8. We have heard learned counsel for both the parties at length and perused the entire record of the trial Court with due care. 9 We find that following questions have emerged for 5 consideration:-
i) Whether the death of deceased was homicidal in nature?
ii) Whether the appellants committed murder of deceased in furtherance of their common intention?
10 Dr. N.S. Dawar (PW-10) who has conducted the postmortem of dead-body of deceased on 1.3.2010, found two incised wound over the occipital area, incised wound brain cavity deep over the left side of skull, left ear lobe cut, brain deep in the temporoparietal region. During the internal examination, he found that occipital bone was found cut in several pieces, temporal bone of left side and internal ear bone was also found cut. Brain membrane also found cut and multiple incised cut found on the occipital area. He opined that deceased has been died due to effect of injuries on brain and death is homicidal in nature. His postmortem report is Ex. P-14.
11 Dr. N.S. Dawar (PW-1) also deposed in his cross examination that deceased sustained four different injuries by giving four blows. From perusal of the record it appears that there is no evidence available on record which shows that the injury sustained by deceased was caused by himself or sustained in any other accident. Therefore, there is no reason to disbelieve the findings given by Dr. Dawar that death of deceased was homicidal in nature.
12 The prosecution has examined Basnibai (PW-3) as eye witness. She categorically stated in her statement that at the time of incident she alongwith her husband Haria and nephew Raman went to Khattal for seeing the Holi but accused persons came there and objected why they came there for watching Holi of Bhil community, they started 6 quarrelling with them, then they fled away from there, but under the Mawadi tree, accused Khumansingh, Sadik and Kaharsingh and other person caught hold her husband Haria. Keharsingh hit Haria by means of Falia on the backside of his head, Khuman also assaulted Haria by Falia on his neck, Sadik assaulted Haria by wooden stick. The incident had taken place at 3 am in the night but it was moonlight and they saw the incident in a torch light. Accused persons also ran towards them then she fled away from the spot. When they returned on the spot with Namalia, Karam singh and other persons then they saw blood cloths on the soil under Mawadi tree. When they reached at Kundanala, the dead- body of Haria was found there. Raman (PW-4) also stated that he went to Khattal alongwith his grand-father Haria and Basnibai his grand- mother to watch the Holi. At about 10 to 12 pm when they are watching the Holi ceremony, then all accused persons slapped Haria, when they were returning their home at that time Saadik came there with wooden stick, Khman and Kaharsingh with Falia and they inflicted injuries to Haria by means of Falia and wooden stick, when complainant objected, then accused persons also chased them, they fled away from there and narrated the whole incident to Namalia and others and with them when he again reached on the spot he found the dead body of Haria nearby the culvert in an injured condition. Then he lodged FIR (Ex.P-15) at police station Kattiwada.
13. Although Premchand (PW-5) turned hostile and not supported the case of prosecution. He categorically stated in her statement that Basanibai did not narrate anything against the accused persons that they have committed murder of her husband by inflicting the injuries by axe.
7Korma (PW-6) and Namliya (PW-7) also stated that Basanibai and Raman both of them told them that accused Khuman and Keharsingh by means of Falia and Saadik by wooden stick has caused injury to Haria and thereafter they have murdered Haria nearby the Mahuva Tree. Therefore, witnesses Korma and Namliya corroborated the statement of eye witnesses Basani Bai and Raman.
14 Learned counsel for appellant submits that there are so many material contradiction and omissions in the court statement of alleged eye witnesses Basanibai and Raman with their police statements (Ex.D-1 and D-2), therefore, their statement cannot be relied upon. But this court is of the considered opinion that all these contradictions and omissions are trivial in nature and same is neither material nor sufficient to discard wholly their testimony.
15 The Hon'ble Apex Court in the case of State of M.P. Vs. Chhaakkilal and others and Ramveer and Chhaakki Lal and another reported in 2018 (4) Crimes 238 (SC) has observed that finding recorded by trial Court is entitled to great weight. The same cannot be interfered with unless vitiated by serious error. It is also observed that the evidence as a whole having a ring of truth cannot be discarded merely because the maker is a related witness. Conviction can be based on evidence of solitary eye witness. It is further observed that omissions or lapses in investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent. Ocular testimony of eye witness cannot be discarded lightly [see : Darshan Singh Vs. State of M.P reported in 2016(3) MPLJ(Cri.) (SC) 410] 16 So far as motive of incident is concerned, Basnibai (PW-3) and 8 Raman (PW-4) categorically stated that accused persons were annoyed with them that they belong to Dhanuk community and accused persons belong to Bhil community without their permission they went on the spot for watching their holi ceremony. Therefore, prosecution has successfully proved the motive of crime also.
17 The investigating officer S.S. Bais (PW-11) deposed that he has prepared spot map (Ex.P-16) and arrested the accused persons through arrest memos (Ex.P-2 to Ex.P-6) and on the basis of their disclosure statements (Ex.P-7 to Ex.P-11) a wooden stick from the possession of appellant Saadik through seizure memo (Ex,.P-120 and Faila from possession of appellant Khuman through seizure memo (Ex.P-20) has been recovered. Although statement of Inspector S.S. Bais (PW-11) is not supported by the witnesses Bachuda (PW-9) and Dhuliya (PW-8) but there is no reason to disbelieve the statement of Inspector S.S. Bais. Inspector S.S. Bais is an independent official witness, he has no enmity with the appellants and there is no motive for falsely implication of the appellants in the instant case. Therefore, on the basis of statement of Inspector S.S.Bais (PW-11) arrest memos (Ex.P-4 to Ex.P-6) seizure Memos (Ex.P-7 to Ex.P-10 & Ex.P-19) it is proved that incriminating weapons have been recovered from possession of appellants. 18 On the minute scrutiny of the entire evidence led by the prosecution it is established beyond reasonable doubts that the appellants prepared a common intention to commit murder of deceased and in furtherance of their common intention they have murdered the deceased by inflicting him sharp cutting weapons. Therefore, we do not find that trial court has committed any illegality or irregularity in assessing the 9 statements of prosecution witnesses. The prosecution since has proved its case beyond reasonable doubts, therefore, conviction of appellants under section 302/34 of IPC is hereby upheld.
19 So far as the quantum of sentence is concerned, the appellants have been convicted for offence under Section 302/34 IPC and sentenced life imprisonment with fine of Rs. 1500/-. The brutal attack was made by appellants on an old person. Those who take the law in their own hands and those who ruthlessly assault a person do not deserve mercy of this Court. The questions emerged above, for consideration are answered accordingly.
20 For the reasons assigned above, the appeal being devoid of merit and substance is hereby dismissed. As a result, the order of conviction of appellants by the trial court is hereby affirmed.
21 Registry is directed to send a copy of this judgment immediately to the trial court alongwith the record of the trial court for necessary compliance.
(VIVEK RUSIA) (ANIL VERMA)
J U D G E J U D G E
BDJ
BHUNESH
Digitally signed by BHUNESHWAR DATT
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH
INDORE, ou=HIGH COURT OF MADHYA PRADESH BENCH
INDORE,
2.5.4.20=3fb5bcda9fd75d95d6c7cdcbd092ee5a74a94a5534ae WAR DATT d3a66d9385cfcfc201e0, postalCode=452001, st=Madhya Pradesh, serialNumber=89FD75A8D0C99E05779A327974E46BC8510282 6CE0604B211E4C91102B4D1269, cn=BHUNESHWAR DATT Date: 2023.12.19 11:50:55 -08'00'