Madhya Pradesh High Court
Seeta @ Sheetal @ Seetaram vs State Of M.P. on 27 November, 2017
Bench: Ashok Kumar Joshi, Vivek Agarwal
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
Hon'ble Mr. Justice Ashok Kumar Joshi
&
Hon'ble Mr. Justice Vivek Agarwal
Criminal Appeal No.523/2008
Sita alias Shital alias
Sitaram S/o Kashiram
Rawat aged 40 years Appellant
Versus
State of M.P. through
Police Station Survaya
District Shivpuri Respondent
......................................................................
For appellant:- Shri Anoop Nigam, Advocate
For respondent/State:- Shri R.K. Awasthi, Public
Prosecutor
......................................................................
JUDGMENT
(27/11/2017) Per Ashok Kumar Joshi, J. -
Challenge in this jail appeal is to the conviction recorded under Section 302 of the IPC and sentence of life imprisonment awarded vide judgment dated 03.05.2008 passed by Second Additional Sessions Judge, Shivpuri in ST No.213/2007.
2. Undisputed facts are that deceased Narayan Singh was real elder brother of the Sita alias Sitaram 2 and complainant Dilip Singh (PW-1), Manoj (PW-5) and Saroj alias Asha (PW-4) are sons and daughter of the deceased.
3. Prosecution's case in brief is that in the midnight of 17-18 April 2007 in village Boodi Barod, Narayan was sleeping with his wife, son and married daughter in courtyard of his house. In the midnight at about 1am appellant Sita came there with country made pistol and fired on his elder brother Narayan Singh which caused injury on deceased's temple (kanpati) and the bullet across from the deceased's head. After hearing the sound of fire, on awakening complainant Dilip and Saroj alias Asha and Manoj saw the appellant Sita standing in courtyard. Dilip and Manoj tried to catch the appellant but he ran away. Previously appellant was having a dispute with his wife and appellant used to beat his wife, then appellant's elder brother Narayan Singh restrained the appellant from beating his wife, hence, appellant was having enmity with his elder brother. In the same midnight at 3am, complainant Dilip Singh (PW-
1) lodged dehati nalishi (Ex.P-1) which was recorded by ASI Santosh Khare (PW-11), who also sent the injured to the hospital. On 18.04.2007, at 7:30am at police station Survaya, FIR (Ex.P-11) was registered by Head-Constable Phool Jain (PW-7) on receiving dehati nalishi (Ex.P-1) recorded by Santosh Khare in village Boodi Barod.
4. On 18.04.2007, Dr. N.L.Agrawal (PW-10) who 3 was on emergency duty at District Hospital Sivpuri gave written intimation (Ex.P-12) to the in-charge police officer, police outpost district hospital that dead body of Narayan Singh has been brought by his son Dilip in the hospital and it is reported that Narayan Singh is injured by the bullet on head fired by his uncle Sita. The head-constable Ramesh Chandra (PW-8) posted in police outpost, district hospital Shivpuri after issuing safina form (Ex.P-12), prepared inquest memo (Ex.P-3) in presence of panch-witnesses and sent the dead body for postmortem. Dr. O.P.Sharma (PW-3) posted in district hospital Shivpuri, on 18.04.2007 at 9:30am started postmortem of the deceased Narayan Singh and found an entry wound caused by firearm on right temple of the Narayan Singh and found a exit wound of the firearm on posterior side of the left ear of the deceased and recorded postmortem report (Ex.P-9). ASI Santosh Khare on 18.04.2007, in presence of complainant Dilip prepared a spot map (Ex.P-4) and seized blood stained soil by scratching from the spot and separately plane soil vide seizure memo (P-4). Appellant Sita was formally arrested in this case on 25.07.2007, as originally he was arrested on 25.07.2007 in another crime No.76/2007 registered at the same Police Station Survaya for the offence punishable under Section 307 of the IPC and 25/27 of the Arms Act and 11/13 M.P.D.V.P.K. Act. In the above-mentioned another crime a country made pistol of 12 bore and 4 live cartridges of 12 bore 4 were also seized from the appellant Sita vide seizure memo. After completing investigation, charge-sheet was filed in the Court on JMFC Shivpuri, who committed criminal case to Sessions Court.
5. Trial Court framed charges against the appellant in relation to offences punishable under Section 302 of the IPC and Section 25 (A) and Section 27 of the Arms Act and he denied the above-mentioned charge. It was the defence of the appellant before the trial Court that since one month prior to the incident he was not living in the village Boodi Barod and he has been falsely implicated by his nephew to capture his immovable property, as deceased's family had ousted his wife from the village prior to the incident and deceased Narayan Singh was having enmity with Badri and some other persons of the village. Before the trial Court complainant Dilip Singh (PW-1), Rambahadur Singh (PW-2), Dr. O.P.Sharma (PW-3), Saroj alias Asha (PW-4), Manoj (PW-5), Patwari Ayub Khan (PW-6), Head-constable Phool Jain Panna (PW-7), Ramesh Chand (PW-8), Head- constable-Barelal Solanki (PW-9), Dr. N.L. Agrawal (PW-10), Investigator Santosh Khare (PW-11) Harnam Singh (PW-12) Jageshwar Singh (PW-13) and SI Vipin Tamrakar (PW-14) were examined. No defence witness was examined by appellant. After hearing, the trial Court acquitted the appellant from the charge of offences punishable under Section 25 (A) and 27 of the Arms Act as the allegedly seized country made pistol and cartridges were not 5 produced before the trial Court, as they were property of another criminal case, but convicted and sentenced the appellant as aforesaid in relation to another charged offence punishable under Section 302 of the IPC regarding murder of his brother Narayan Singh.
6. The learned counsel for the appellant vehemently contended that there were material contradictions amongst the depositions of eyewitnesses Dilip Singh (PW-1), his sister Saroj alias Asha (PW-4) and Manoj (PW-5) and similarly there were material contradictions in Dilip Singh's deposition and his signed dehati nalishi (Ex.P-1). It was clearly mentioned by the complainant Dilip Singh in his dehati nalishi report (Ex.P-1) that after threatening and placing country made pistol on the temple of the deceased appellant had fired, but according to medical evidence no blackening, charring or tattooing was found on entry wound caused by firearm and according to medical evidence of Dr. O.P.Sharma (PW-3) who conducted autopsy of the dead body, fire was made from a distance of 10 to 15 feet from the deceased. Therefore, it is argued that the evidence of the complainant is contradicted by the medical evidence, hence, the evidence of these eyewitnesses was not reliable and the trial Court had erred in convicting and sentencing the appellant for causing murder of his elder brother, hence, it is prayed that his jail appeal be allowed and he be acquitted from the charge of murder also.
67. Per contra learned Public Prosecutor appearing for the respondent/State has totally supported the impugned judgment and findings recorded by the trial Court and he contends that it is clear from the evidence of the eyewitness that before firing they all were sleeping and were awaken only by sound of fire and, thereafter saw the appellant standing in courtyard of their house. It was also argued by the Public Prosecutor that after recording of named FIR against the appellant on 18.04.2007, appellant absconded and could only be arrested by police on 25.07.2007 in an another crime and the facts of his absconding provide additional corroboration to the evidence given by the eyewitnesses, hence, it is prayed that appellant's appeal be dismissed.
8. It is clear from the evidence of Dr. N.L.Agrawal (PW-10) and his signed written letter (Ex.P-12) sent to the in-charge of police outpost, District Shivpuri that during the period of his emergency duty, on 18.04.2007 dead body of Narayan Singh aged about 45 years was brought by his son Dilip and he also intimated that deceased had died due to firing made by Dilip's uncle Sita.
9. Dr. O.P.Sharma (PW-3) deposed that on 18.04.2007 in district hospital Shivpuri at 9:30am he started postmortem of dead body Narayan Singh, rigor mortise was present in hands and legs, deceased clothes were entangled with blood and soil and blood clot was seen on head and face and he 7 found following injuries on the dead body :-
1. An entry wound caused by firearm on right temple of size 2.5x1.5cm and margins of this entry wound were inverted and blood clots were also present.
2. An exit wound of firearm posterior to left ear of size 4cmx2cm and margins of this exit wounds were projected towards outward.
10. Dr. O.P.Sharma opined that antemortem wounds were caused by firearm and deceased had died within 24 hours from starting of his postmortem and death was homicidal and he had died due to coma arising out of injury to the brain. Dr. Sharma deposed that in dissection of the dead body, fractures of right frontal and left parietal and temporal bones and mastoid bone process of left occipital bones were found and front part of the brain had divided into many pieces and blood clot was present in the brain and there was also a blood clot in posterior part of the mouth. In cross-examination Dr.Sharma deposed that as no charring and blackening or tattooing was found on entry wound and there was no depositing of any powder on entry wound, he opined that fire was caused to the deceased from a distance of 10 to 15 feet. He proved his postmortem report (Ex.P-9). The cause of death is not challenged by the appellant.
Hence, it is proved that the death of Narayan Singh was homicidal caused by fire arm.
11. The eyewitness account of incident was given by 8 the complainant Dilip Singh (PW-1), Manoj (PW-5), who are sons, and Saroj alias Asha (PW-4) who is daughter of the deceased. According to their evidence complainant Dilip Singh and married daughter of the deceased Saroj alias Asha (PW-4) were also sleeping in the courtyard of their house, whereas, Manoj (PW-5) was sleeping on the roof of the house. The complainant Dilip Singh (PW-1) deposed in his examination-in-chief that in the courtyard, his father Narayan Singh, mother Ashokbai, Saroj alias Asha and he himself were sleeping on four different cots (khatia) and in the midnight at about 1:30am his uncle Sita Rawat came there having a country made pistol and placing his pistol over temple of his father and after uttering words that he is killing decease and, thereafter, appellant fired from his pistol and the bullet passed through the skull of his father and blood was oozing. Dilip Singh deposed that on his shouting his brother Manoj and uncle Ramdayal had also come there and they tried to catch the appellant but appellant fled away from back side of their house. Dilip Singh proved his signature on dehati nalishi (Ex.P-1). He also proved his signature on safina form (Ex.P-2) inquest memo (Ex.P-3) spot map (Ex.P-4) and seizure memo (Ex.P-5). Deceased's daughter Saroj alias Asha (PW-4) and son Manoj (PW-5) clearly deposed that at the time of incident at about 1:30am they were sleeping and on hearing the sound of firing, they got awaken but appellant could not be 9 caught. Manoj deposed that after awakening he come down from roof to the courtyard and found that blood was oozing from temple of his father and his brother Dilip and sister Asha intimated him that uncle Sita had fired on father, thereafter, he brought his injured father to the Shivpuri hospital in a tractor, but on the way his father died.
12. Much emphasis has been given by the learned counsel for the appellant that complainant Dilip Singh (PW-1) clearly deposed that before firing appellant had placed his pistol over temple of his father and said that he is killing him and, thereafter, appellant had fired and same facts have been mentioned by the complainant in his dehati nalishi (Ex.P-1) whereas, according to medical evidence of Dr. O.P.Sharma (PW-3) deceased was shot by a firearm from a distance about 10 to 15 feet away from the deceased. Therefore, it is argued that the evidence of eyewitness complainant Dilip Singh (PW-
1) is totally contradicted by the above-mentioned unchallenged medical evidence.
13. It is well settled that deposition of any witness given before the Court is to be read as a whole. Complainant Dilip Singh (PW-1) in cross- examination (Para-7) clearly deposed that he got awaken only after hearing sound of firing by the pistol, but he saw that appellant Sita was standing in courtyard of their house and he tried to caught him but appellant fled away. In para-10, complainant 10 clearly deposed that he did not know that whether pistol was placed over temple of his father or not. He clearly deposed in cross-examination that in his house he tried to catch the appellant, but he did not try to catch the appellant outside their house because he was having a country made pistol in his hand. He clearly deposed in cross-examination that he had not mentioned the facts relating to placing of pistol on temple and giving threatening by appellant before firing in dehati nalishi (Ex.P-1). In para-7, complainant clearly deposed that when he got awaken only after hearing the sound of firing.
14. Saroj alias Asha (PW-4) and Manoj (PW-5) have also deposed that prior to the incident they were also sleeping and got awaken only after hearing the sound of firing. It is clear that only one fire from the country made pistol was made and before that deceased and all witnesses were sleeping. Incident had occurred in midnight in courtyard of deceased's house, hence, at such odd time presence of independent witnesses was not possible and only inmates of the house had occasion or opportunity to hear and watch something.
15. It is also significant to mention here that according to the prosecutions case appellant came in midnight secretly when all family members were sleeping including deceased and just after firing applicant fled away. When accused came in midnight secretly in deceased's house when family members 11 were sleeping, then it is not natural that before firing he would say anything to anyone.
16. It is observed by the Hon'ble Apex Court in case of State of U.P. Vs. Anil Singh and others (AIR 1988 SC 1998) that generally prosecution witnesses made some embroidery in their evidence due to fear of being disbelieved by the Court but if there is a ring of truth in prosecution's case and evidence of such witnesses is corroborated by other evidence, then prosecution's case should not be totally discarded only due to such exaggerations made by any prosecution witness. It is also to be remembered that dehati nalishi (Ex.P-1) was recorded by ASI Santosh Khare (PW-11). It appears that to make a believable prosecution case, above- mentioned facts have been recorded in dehati nalishi (Ex.P-1) but it is clear from the total evidence of complainant Dilip Singh (PW-1) that he got awaken only after hearing the sound of firing, due to some exaggerations made by him in examination-in-chief or in dehati nalishi, his total deposition could not be disbelieved because Saroj alias Asha (PW-4), who was also sleeping in the same courtyard, deposed in examination-in-chief that after hearing the sound of fire, when she got awaken, then she saw that appellant was standing near to the cot (khatia) and, thereafter, appellant was tried to be caught but he could not be caught as appellant fled away through the bakhar. It is clear from her evidence that though she was a married girl of the deceased but had come 12 to her parental house before incident and her name is clearly mentioned in dehati nalishi also, hence, her natural evidence could not be disbelieved. Manoj (PW-5) had not deposed that after firing he had seen the appellant standing in their courtyard or about seeing the appellant fleeing away, but he clearly deposed that his elder brother Dilip and sister Asha intimated him that uncle Sita had fired on their father.
17. Saroj alias Asha (PW-4) deposed that appellant was living in front of her parental house and there was about 5 to 7 feet width distance in between the houses of her parents and appellant. It was the defence taken by the appellant in his examination conducted under Section 313 of Cr.P.C. that he has been falsely implicated by children of his brother as they are desirous to capture his immovable property and her wife was ousted by them prior to the incident. Saroj alias Asha (PW-4) and Manoj (PW-5) have clearly deposed that prior to the incident, appellant Sita was habitual of giving heavy beating to his wife and children and his father Narayan had always tried to save appellant's wife and their father has intimated to the brother of appellant's wife, who thereafter, had taken away appellant's wife and children from village Boodi Barod and for the same reason, uncle appellant Sita had murdered their father. This facts have clearly been mentioned in dehati nalishi also. It is clear from the evidence of Asha (PW-3) and Manoj (PW-4) that 13 appellant is having wife and children, hence, only due to arrest or conviction of the appellant, his immovable property could not be inherited by deceased's children, because appellant's wife and his children would be entitled for appellant's immovable property because he was separately living from the deceased.
18. Much emphasis has been given by the appellant's counsel on the fact that eye-witness Manoj (PW-5) deposed in cross-examination (Para-6) that his elder brother Dilip Singh lodged report of incident, three days after incident, but ASI Santosh Khare (PW-11) clearly deposed that he recorded dehati nalishi (Ex.P-1), in the same midnight just after one and half hour after the incident in village Boodi Barod and on the basis of dehati nalishi (Ex.P-
1), head-constable Phool Jain Panna (PW-7) had recorded the FIR (Ex.P-11) on 18.04.2007 at 7:30am. Another intimation given by the complainant at district hospital Shivpuri is proved by Dr.N.L.Agrawal (PW-10), who has clearly deposed that on 18.04.2007 in district hospital Shivpuri during his emergency duty he was informed by deceased's son Dilip Singh, who had brought dead body, that Sita had fired on deceased's head. This another intimation (Ex.P-12) was recorded by Dr. N.L. Agrawal (PW-10) is on record coming from another source. Hence, only due to Manoj's statement it could not be inferred that complainant lodged report three days after the incident.
1419. Regarding defence of the appellant, suggestions given to various prosecution witnesses in their depositions appear to be important. In cross- examination, complainant Dilip Singh (PW-1) admitted that prior to the incident, appellant's wife was living in her parental house in other village because appellant was beating her and Rai Singh and Ranjeet are neighbors of the complainant. It was suggested to the complainant in his cross- examination in para-13 that appellant's wife was abducted and taken as a kept by the above- mentioned Rai Singh and Ranjeet in their house but the complainant denied this suggestion given by the appellant's counsel, though he admitted that prior to the incident appellant was not living in village Boodi Barod, but he deposed that appellant was regularly coming to Boodi Barod. In cross-examination (Para-
14) of the complainant Dilip Singh (PW-1) suggestion was given that prior to incident, appellant was living in town Karera in Bhaiyalal Joshi's house, but the complainant replied that he is not aware of this fact, but he clearly denied the suggestion that during that period, appellant was not visiting village Boodi Barod.
20. Appellant in his examination under Section 313 of Cr.P.C. stated that since one month prior to the incident he was not living in village Boodi Barod, but he had not stated that prior to the incident he was living in town Karera, District Shivpuri in Bhaiyalal Joshi's house. According to the well established legal position, plea of alibi is to be proved 15 by examining defence witnesses for the accused. Appellant has not clearly taken defence that on the date of incident he was in town Karera. No defence witness including Bhaiyalal Joshi was produced on behalf of the appellant before the trial Court. Hence, such halfheartedly taken line of defence could not destroy the otherwise reliable and trustworthy evidence given by above-mentioned prosecution witnesses, who had seen appellant on spot just after the fire.
21. It is also significant that on 18.04.2007, named FIR relating to crime No.45/2007 was registered at police station Survaya against the appellant, but it is clear from the evidence of SI Vipin Tamrakar (PW-4) that actually on 25.07.2007 appellant was arrested by him at Mori Hills with a country made 12 bore pistol with 4 live cartridges in an another crime, whose original documents were placed in record of ST No.49/2007 and Vipin Tamrakar clearly deposed in cross-examination that appellant was only formally arrested in this case on 26.07.2007 vide arrest memo (Ex.P-6). Photocopy of seizure memo relating to pistol and cartridges is got exhibited as Ex.P-8, which indicates that in previously registered crime No.76/2007 of the same police station, such articles were seized on 25.07.2007 in relation to offences punishable under Section 307 and 25/27 of the Arms Act and 13/11 of M.P.D.V.P.K Act. This fact is clearly emerging from the evidence of above-mentioned police officers which 16 indicates that from 18.04.2007 to 25.07.2007 appellant remained absconding. After registration of crime in relation to this case, the conduct of appellant remaining absconding for more than three months, provides an additional corroboration to the prosecution's case.
22. Some suggestions were given in cross- examination to various prosecutions witnesses including family members of the deceased Narayan Singh that deceased Narayan Singh was having enmity with some persons named Badri and others of the same village. Though relating witnesses have shown their ignorance regarding given suggestions. Only on the basis of these suggestions, in absence of any documentary evidence regarding enmity of deceased with Badri or some other persons of same village, it could not be inferred that deceased could be murdered by any other person, whereas, reliable and trustworthy evidence is available against the appellant.
23. Though the appellant was acquitted from the charge of Section 25 (a) and 27 of the Arms Act, but only due to this reason, the evidence of eye- witnesses could not be doubted, whereas, it is clearly proved that deceased Narayan Singh was murdered by a firearm. We are of the considered opinion that trial Court has properly and legally appreciated and analyzed the entire evidence available on record and had not erred in convicting and sentencing the 17 appellant for the offence punishable under Section 302 of the IPC, therefore, appellant's appeal appears to be devoid of any substance.
24. Consequently, this appeal filed by the appellant is dismissed and the conviction and sentence as recorded by the above-mentioned trial Court is affirmed. The result of this jail appeal be intimated to the appellant through the concerned Jail Superintendent with a copy of this judgment. The record of trial Court be immediately sent back.
Ashish* (Ashok Kumar Joshi) (Vivek Agarwal)
Judge Judge