Madhya Pradesh High Court
Hannu vs The State Of Madhya Pradesh on 24 November, 2021
Author: Atul Sreedharan
Bench: Sunita Yadav, Atul Sreedharan
1
Cr. A. No.470/2010
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
CRIMINAL APPEAL No. 470/2010
Hannu and others
Vs.
The State of Madhya Pradesh
Counsel for the appellant : Ms. Sushila Paliwal, Ld.
Amicus Curiae
Counsel for the Respondent/State : Mr.Piyush Bhatnagar, Ld.
Panel Lawyer
Corum : Hon'ble Mr. Justice Atul Sreedharan
Hon'ble Mrs. Justice Sunita Yadav
******
JUDGMENT
(24-11-2021) Per : Atul Sreedharan, J.
As the counsel for the appellants is not present, we have appointed Ms. Sushila Paliwal, learned Amicus Curiae on behalf of the appellants.
2. The present appeal has been filed by the appellants herein against the judgment and sentence dated 19.11.2009 passed by the learned 3rd Additional Sessions Judge, Raisen in Sessions Trial No. 192/2008 convicting and sentencing the appellants herein for the 2 Cr. A. No.470/2010 offence under Section 302 of IPC and to undergo rigorous imprisonment for life and fine of Rs. 500/- and additional rigorous imprisonment of six months in default thereof. They have also been convicted for the offence under section 323 of IPC and sentenced to suffer rigorous imprisonment for 1 month and fine of Rs.200/- and in default of payment of fine, 15 days additional rigorous imprisonment.
3. Appellant Hannu has been convicted under Section 302 simpliciter, while appellants Jairam and Chandrabhan have been convicted under Section 302 read with Section 34 of IPC. All three have also been convicted for the offence under Section 323 of IPC.
4. The case of the prosecution in brief is that on 22.08.2008 at around 01:30 a.m., when the complainant Bhupendra was sleeping along with his family members, the appellants herein entered into the house at 01:30 a.m., started hurling abuses at the deceased Shivraj, who is the father of the complainant and started assaulting him with Ballam and lathi. They are stated to have dragged the deceased along a narrow path during which time the deceased is said to have ran away into the Jungle hotly pursued by the appellants. It is also the case of the prosecution that Munna, the brother of the deceased interceded and also suffered injuries in the process.
5. The FIR in this case has been registered at police station Deori, District Raisen, on 22.08.2008 for offences under Section 302 read 3 Cr. A. No.470/2010 with Section 34 of IPC. The time at which FIR was registered is 09:30 a.m. in the morning. The time of the incident is shown as 01:30 a.m. of 22.08.2008. The distance of the police station from the place of incident is about 5 kms. and all the appellants have been named in the said FIR. The FIR is Ex. P-6.
6. PW-4 is the son of the deceased is also scribe of the FIR. In his testimony he states that on the date of the incident at about 01:30 a.m., the appellants came to the house of the deceased, starting hurling at the deceased and started assaulting him. The appellant Hannu was armed with a Ballam and the other appellants Chandrabhan and Jairam are stated to have been armed with lathis. Witness further says that his uncle Munna interceded to save the deceased, when the appellants herein assaulted him also causing injuries to Munna. He further says that in the assault his father suffered injuries on both side of his head, on stomach hand and both the legs. He further says that the appellants took the deceased outside the house even as they continued to assault him. In paragraph-4, the witness says that he was an eye witness to the assault along with his mother Tarabai. He further says that no other villager had witnesses the incident. In the morning around 06:00 a.m., the witness goes out in search of his father and finds him lying dead in the Jungle. On the same date itself he goes to the police station and registers the FIR. This witness has been declared hostile and cross-examined by the 4 Cr. A. No.470/2010 prosecution and in paragraph-10, he has remained steadfast and has not supported the prosecution's case only to the extent of the recovery of articles from the accused persons and the preparation of the 27 memorandum.
7. Leaned counsel for the appellants has submitted that this is the first aspect which goes to show that the case against the appellants is a trumped up case and the witnesses have stated falsely. She has placed much emphasis and reliance on paragraph-10 of PW-4 testimony to show that the articles that were recovered from the appellants allegedly used for the offence have not been proved as this witness has turned hostile and does not support the case of the prosecution as far as it relates to the seizure of weapons from the appellants.
8. Per Contra, learned counsel for the State has argued that when there are eye witnesses in a case, the non-recovery of the articles used in the offence or the inability to prove them in the course of the trial cannot be said to be a factor that goes to the root of the prosecution's case. He further submits that it is natural conduct for a person to try and dispose of the weapon used in the offence lest its recovery link him to the crime. He has further submitted that the said recovery may have been relevant in a case of circumstantial evidence but as this case is based on eye witness testimony of three witnesses, 5 Cr. A. No.470/2010 the inability of prosecution to prove the recovery is inconsequential. On this point we are in an agreement with the learned counsel for the State. In cross-examination in paragraph-15, this witness has been specific with regard to the places of the body of the deceased where each of the appellants have assaulted. He says that as far as the appellant Hannu is concerned, he has assaulted the deceased on the head with a Ballam and also inflicted one blow on the stomach of the deceased with the Ballam. He says that Jairam has assaulted his father on the hand and legs with a lathi. He further says that after the assault by appellant Hannu, his father fell down on the ground thereafter, the co-appellants Jairam and Chandrabhan continued to assault him with sticks even after he fell down. As regards the motive for this case, the relevant paragraphs of this witness testimony are paragraphs 14 and 17 where he says that the appellants suspected the deceased was indulging in witchcraft and he says on the previous date of incident itself, the daughter the appellant Hannu had died, which Hannu thought was on account of the witchcraft practices by the deceased.
9. Learned counsel for the appellants has pointed out to two omissions in the statement of PW-4 the first one is a relation to the exact place where the deceased was sleeping which is an omission in the police statement of PW-4 and the second is that part of the testimony of the witness that the accused arrived abusing the 6 Cr. A. No.470/2010 deceased and started assaulting him is also an omission in his police statement.
10. Per contra, learned counsel for the State submits that these omissions are so extremely minor and inconsequential that they also do not go to shake the case of the prosecution. He reiterates again that this case being based upon eye witness testimony, the prosecution has proved its case beyond reasonable doubt.
11. The next witness in this case of relevance is Tarabai, who is PW-
5. She is wife of the deceased. She corroborates the statement of PW- 4 and says that at the night of the incident she was woken up by the sound of the altercation between the appellants and the deceased and came out and saw the appellants assaulting the deceased. However, learned Amicus submits that the statement of this witness contradicts that of PW-4. She says that this witness says that both Hannu and Jairam were armed with Ballam, whereas Chandrabhan was one who was carrying the lathi. She says that PW-4 says that only Hannu was carrying the Ballam while Chandrabhal and Jairyam were armed with lathis. She states that the reliance on this witness would be improper as she has erred on material particulars of the incident.
12. However, learned counsel for the State has submitted that the witness is a lady, who has just woken up and seen the incident. Her ability to discriminate between the Ballam and lathi may be doubtful 7 Cr. A. No.470/2010 as both have a long shaft in common with the Ballum having a spear head. He further stated that this witness has truthfully stated that she has not seen the assault that has taken place on PW-9 Munna and that she was told about the assault on him by the witness himself. Not much has been brought out the cross-examination of this witness. Learned counsel for the State has further submitted that her identification of the weapon used between a Ballam and lathi is not a material discrepancy. He further says that the material facts are the assault which was carried out by the appellants on the deceased to which she is a witness and to that extent she has corroborated PW-4.
13. The next witness in this case is PW-9, who is Munna, the brother of the deceased. His deposition before the trial court is extremely short. He says that on the date of the incident, Hannu and Jairam were identified by this witness and thereafter, he points to Chandrabhan in the dock and identified he was a third assailant and says that they had come to his house and had assaulted him and he further says that they had taken away the deceased along with them. The trial court has observed that the witness PW-9 is a person of arrested mental development and therefore, the prosecution is unable to proceed any further in examining him. No questions have been put to this witness in cross-examination.
14. Learned counsel for the appellants has thereafter, drawn our 8 Cr. A. No.470/2010 attention to the statement of PW. 7 to state that it demolishes the entire case of the prosecution. She says that this witness has testified that Tarabai, wife of the deceased had come to him in the night of the incident itself and informed him that Shivraj, the deceased was taken away into the Jungle by Hannu and others. He further states that upon receiving the information he had gone to the House of Shivraj where he did not find Shivraj nor did he find Hannu and the others and thereafter, he came back to his house. He says later, Jairam, the appellant no.2 informed him that the dead body of the deceased was lying outside the village upon which he went to the scene and thereafter, found that the deceased was lying there dead. He further says that he went to the police station, Deori and gave the intimation relating to the incident and further states that he went to the police station first and thereafter, PW-4, PW-5 and PW-9 came to the police station. He further states that he had given intimation relating to the death of Shivraj but upon his report no FIR was registered.
15. Learned counsel for the appellants has argued that PW-7 is an independent witness, who was uninterested in this case. She further says that this witness has disclosed that it was the appellant no. 2, who had first discovered the body of the deceased and intimated the witness about it. In other words, learned counsel for the appellants says that PW-4 is not believable as the person, who has discovered the body, as the independent witness, says that it was Jairam and not 9 Cr. A. No.470/2010 PW-4. She further states that the police ought to have registered the report upon the disclosure of the offence by the PW. 7 itself but they do not and instead they wait for the family members of the deceased to arrive at the police station. In opposition to this, learned counsel for the State has argued that PW-7 is not believable and has not testified correctly with regard to the case of the prosecution. In regard to this the learned counsel for the State submits that PW-5 Tarabai in her testimony does not state that she had ever gone and disclosed about the incident to PW-7 on the night of the incident itself.
16. Learned counsel for the State submits that the contention of PW-7 that it was he who went and informed the police, is a bald statement. He further states that PW-7 does not state the time when he went to the police station or whether he had given a written statement to the police and whom he had met in the police station. He further states by drawing the attention in paragraph-5 of PW-7's statement where the witness states that the police had not recorded his statement and the statement that he had given in the trial Court, which was the first and only statement. Further, it is also submitted by the learned counsel for the State that the Investigation Officer of this Mr.R.K.Bhadoriya (PW-8) has also not corroborated the statement of PW-7. Under the circumstances, we are in agreement with the submission put-forth by the learned counsel 10 Cr. A. No.470/2010 for the State that the statement given by Mr.Amar Singh (PW-7) is not worthy of credence and therefore, reject the same.
17. The postmortem report of the deceased is Ex.P/3. The injuries which have been noted on the body of the deceased are two lacerated wounds on the occipital region, one on the right side and other on the left side in oblique plane, size of each wound is 3 inch X 1 inch X skin Flascial and bone (occipital) with multiple fractures embedded in brain matter as lacerated and cranial cavity full of blood. Learned counsel for the State submits that these injuries are match with the statement of PW- 4 with specific reference to paragraph-15 in cross-examination, and in paragraph-3 where PW-4 says that his father was assaulted on the head on both sides. This corresponds with the observation of the Doctor in the postmortem report. Besides that there are multiple contusions on the back side of ear and there is lacerated wound on the lower lip of the deceased.
18. Learned counsel for the State has attributed that injuries on the head of the deceased to the Ballam which is basically a stick/rod with a spear head on one end. Learned counsel for the State submits that both kind of injuries can be caused by Ballam that are lacerated injury and the incised injury (where the sharp spear head is used). The cause of death given by the Doctor is 11 Cr. A. No.470/2010 shock due to head injuries and excessive hemorrhaging and other injuries. Ex.P/4 is the MLC of Munna (PW-9), who has suffered three injuries, which are all simple in nature.
19. Having gone through the evidence on record and the submissions of the learned counsel, we find that the testimony of PW-4, 5 and 9 support and corroborate each other on material particulars so far as the incident is concerned and the participation of the appellants herein. PW9 is the injured witness who had the occasion to view the entire incident from close quarters and has named two of the appellants and identified the third in the dock and has stated that they are the ones who assaulted him and took away the deceased. There is no cross-examination of this witness. As we are rejecting the testimony of PW-7 as being unreliable, we find that the testimony of PW-4, 5 and 9 is corroborated by the report and testimony of PW-3, who is the Doctor, who carried out the postmortem report. We also hold that the doubt which has been created with regard to the articles seized from the appellants herein alleged to have been used in the incident, is inconsequential, as this case is entirely based on the eye witness testimony.
20. Under the circumstance, we dismiss the appeal. However, 12 Cr. A. No.470/2010 as the jail report shows that the appellants have undergone more than 17 years of the jail sentence including the remission of 5 years. We make it clear that the dismissal of this appeal does not come in the way of State exercising its discretion of granting remission to the appellants herein as and when it deems fit and proper in the facts and circumstances of this case.
21. Before parting with this case, we would like to record our gratitude to Ms.Sushila Paliwal, learned counsel as Amicus Curiae in assisting this Court for disposal of this case.
(Atul Sreedharan) (Sunita Yadav)
Judge Judge
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Date: 2021.11.26 10:21:56 +05'30'