Vinod vs The State Of Madhya Pradesh
2021 Latest Caselaw 3885 MP

                                 1


       HIGH COURT OF MADHYA PRADESH
         PRINCIPAL SEAT AT JABALPUR

               Criminal Appeal No.1074/2010


Appellant                   :       Vinod Ahirwar

                   -   Vs. -

Respondent                  :       The State of Madhya Pradesh



Counsel for the appellant/          : Ms. Manju Khatri, Ld. Adv.
                                      As Amicus Curiae

Counsel for Respondent      :        Mr. Piyush Bhatnagar,
                                     Ld. Panel Lawyer


Coram: Hon'ble Mr. Justice Atul Sreedharan
       Hon'ble Ms. Justice Sunita Yadav

                          O R D E R

( /08/2021)

Per: Atul Sreedharan J.

The appellant is aggrieved by the judgment of

conviction and sentence dated 28.0.2010 passed by the

learned IIIrd Additional Sessions Judge, Sagar, in

Sessions Trial No.456/09 by which, the appellant have

been found guilty of an offence U/s.302 of the I.P.C.

and has been sentenced to undergo rigorous

imprisonment for life with fine of Rs.5000/- and a

further sentence of rigorous imprisonment of six

months in default of payment of fine.

2. The case for the prosecution in brief is as follows: An

F.I.R. was lodged by one Kanhaiyalal (PW-1) at Police

Station, Cantonment, Sagar, regarding the murder of

one Kushilal on 05.07.2009 at 22.05 hours. The

appellant herein is named as the perpetrator of the

offence. In the F.I.R. (Ex.P/1 PW-1), he states that the

appellant herein came to his house and informed him

that his father troubles him a lot and therefore, he has

murdered him.

3. The appellant was arrested on 06.07.2009. A knife was

seized from the possession of the appellant and seizure

memo was prepared (Ex.P/11). The independent

witness is one Sitaram, who has signed the seizure

memo. The body of the deceased was sent for post-

mortem and the doctor found two incised wounds one

on the right side of the chest and the other over the

abdomen. The cause of death was shown as shock due

to injury on the right lung and jejunum and mesentery.

Ex.P/13 is the forwarding note of Superintendent of

Police, Sagar to the Forensic Science Laboratory, Sagar,

inter-alia sending the knife for chemical analysis.

There is such document in the Trial Court record to

prove the receipt of the knife by the F.S.L. Laboratory

and neither is there any report of the F.S.L. pertaining

to the chemical analysis on the knife.

4. PW-1 Kanhaiyalal states that at around 8.30 p.m., he

was informed that the deceased Kushilal was stabbed

by the appellant herein. He is the person who had

taken the deceased to the hospital along with the sister

of the deceased, who is PW-2 Siyarani. He has proved

the F.I.R. and also the seizure memorandum relating to

the blood-stained earth. In his examination-in-chief,

PW-1 also states that the appellant herein did not tell

him about the incident nor about the deceased. He

further states that he had heard that the appellant had

stabbed the deceased twice or thrice in his stomach. It

is relevant to mention here that in his Court

deposition, this witness does not mention that the

appellant ever gave an extra-judicial confession to him

which he has stated in the F.I.R. The prosecution has

not declared him hostile in the cross-examination on

that issue.

5. PW-2 is Siyarani. She is the sister of the deceased and

a purported eyewitness in this case to the incident.

She says that the deceased stayed with his family near

her house and that the deceased used to consume

alcohol, as did the appellant, who is son of the

deceased. On the date of the incident, she says that the

appellant came and stabbed the deceased Kushilal on

the chest and stomach three to four times on account

of which, Kushilal fell by the roadside outside his

house. She further stated that she caught hold of the

appellant and asked him as to why he was stabbing her

brother, upon which, the appellant is stated to have

quarrelled with her and thereafter, ran away from the

scene of occurrence. Thereafter, she corroborates PW-1

by saying that she along with PW-1 took the deceased

to the hospital and thereafter, the deceased died on the

same day itself. In her cross-examination, she says

that near the house of the deceased, there were several

other persons who were his neighbours like Banshilal,

Sitaram, Balram and Rajaram, in whose houses 8 to 10

children reside. When confronted with her 161

statement in which there is no mention of her having

caught hold of the appellant and asking him why he

was stabbing her brother upon which the appellant is

alleged to have quarrelled with her also, the witness

says that she is unable to explain the omission. She

thereafter states that it is correct to suggest that when

she came out of her house, the deceased was already

lying on the ground. She further states that she saw

that the appellant was stabbing the deceased with the

knife and she agrees to the suggestion that when she

came out of the house, the deceased was lying on the

ground and after that time, nobody was assaulting him.

She also states that it is correct to suggest that the

information relating to what had happened between the

appellant and the deceased before her arrival at the

scene, is the information which she gathered from

others. In paragraph 3 of her cross-examination, she

states that it is correct to suggest that she does not

know what had happened when the deceased was at his

home.

6. The next witness of relevance is PW-5 Anil, who is the

nephew of the deceased and son of PW-2 (Siyarani). He

says that at around 8-8.30 p.m. on the date of

incident, he came to know that the deceased was

sleeping inside his house and that he was stabbed on

his chest and stomach. He says that his mother (PW-2)

informed him that the deceased was stabbed by the

appellant and he died while being taken away to the

hospital. In the cross-examination, he says that at the

time of the incident, his mother (PW-2) was not present

there and that she got the information later on from a

person by the name of Vijay. He further says that the

incident has been witnessed by Vijay. At the time of the

incident, he says that he was performing his prayers

and was not present at the scene of occurrence. This

witness has stated in his cross-examination in favour

of the accused and has emphatically stated that at the

time of the incident, his mother PW-2 Siyarani was not

present at the scene of occurrence and that the

incident was witnessed by a person named Vijay, who

informed his mother about the incident. It is relevant

to note that Vijay has not been examined as a witness

in this case. Though PW 5 Anil has stated facts which

would put to doubt the presence of his mother, the sole

eyewitness in this case her has not been declared

hostile by the prosecution and has not been subjected

to re-examination by the prosecution. Under the

circumstances, the statement of PW-5 (Anil) is binding

upon the prosecution.

7. The recovery of the knife from the appellant is also

under a cloud of doubt because the independent

witness to the recovery has also not been examined

before the learned trial Court, Besides, it has also not

been proved by the prosecution that the knife recovered

from the appellant and also the articles seized from the

scene of crime were ever sent to the FSL for chemical

analysis as no receipt of the FSL having received the

said articles for chemical examination is there on the

record of the Trial Court and neither is there any report

of the FSL on record.

8. Learned Amicus-Curiae representing the appellant

submits that the case foisted upon the present

appellant is false and concocted, as PW-2 Siyarani is

not an eyewitness to the incident, as there are many

contradictions and omissions in her statement. She

has further argued that though PW-2 says in the

examination in chief that the appellant was stabbing

the deceased and that she caught hold of the appellant

and questioned him as to why he was stabbing the

deceased, upon which, the appellant is stated to have

quarrelled with her, this part of her statement is an

omission in her 161 statement before the Police with

which she has been confronted by the defence, in other

words, the Ld. Amicus has made out a case that the

witnessing of the offence by PW1 is extremely doubtful

as that part of her statement which reflects her alleged

physical interaction with the appellant at the time of

the incident, is not worthy of belief. Further, in the

cross-examination, the Ld. Amicus submits and this

Court agrees that she has contradicted herself by

saying that the appellant stabbed the deceased upon

which he fell down and thereafter she says that when

she came out of the house, she saw that the deceased

had already fallen down and also, that after the

deceased had fallen down, there was no further assault

upon him. An analysis of her wavering statement

creates a doubt whether she had actually witnessed the

incident or not. Besides that, the part of her

deposition in which she says that it was she who had

informed PW-1 with regard to the stabbing has not

been corroborated by PW-1, who says that he had

received the information about the stabbing of the

deceased by the appellant from someone else. PW-1

does not even name the source of that information on

the basis of which he went to the scene of occurrence

and then took the deceased to the hospital.

9. Learned counsel for the State has submitted that PW-2

is an eyewitness in this case and her statement is

sufficient to convict the appellant. As regards, the non-

examination of the seizure witnesses by the

prosecution, learned counsel for the State submits that

the same notwithstanding, the documents have been

proved by the Investigating Officer. However, the State

is silent with regard to the absence of the F.S.L report

or even the absence of the receipt issued by the F.S.L.

of having received the sample for chemical analysis.

10. In view of what has been discussed by us hereinabove,

we feel that PW-2 (Siyarani) cannot be trusted or

believed as the sole eyewitness to the incident on

account of vacillations in examination in chief and

cross-examination. The said vacillations and

contradictions, raise a serious doubt on the core of the

prosecution's case. This Court is of the opinion that it

would be extremely unsafe to convict the appellant on

the basis of the sole testimony of PW 2 in view of what

we have referred to and discussed hereinabove. The

locality undisputedly was a crowded place with houses

in close proximity which is supported by the fact that

PW-2 herself has stated that there were many other

inhabitants residing in the neighbourhood of the

deceased and none of them have been examined by the

prosecution. Therefore, the testimony of PW-2

(Siyarani) is not of such nature that would inspire the

confidence of this Court to sustain the conviction of the

appellant only on the basis of her sole testimony. The

non-declaration of PW--5 (Anil) as a hostile witness

and the absence of further examination by the

prosecution, goes to show that the prosecution was

never aggrieved by the statement given by PW-5, in

cross-examination which goes to the benefit of the

appellant herein. We hold that the prosecution has not

been able to prove its case against the appellant

beyond reasonable doubt.

11. Under, the circumstances, in view of the discussion

narrated hereinabove, we find that the prosecution has

not been able to prove its case against the appellant

beyond reasonable doubt and, therefore, we allow the

allow and set aside the impugned judgment of

conviction and sentence imposed upon the appellant by

the learned trial Court and acquit him of the charge of

murdering his father. If he is in jail undergoing his

sentence, shall be released forthwith, if not wanted in

any other case. If he is on bail, the bail bonds stand

discharged.

             (Atul Sreedharan)                                   (Sunita Yadav)
                   Judge                                             Judge


             a.



Digitally signed by ASHISH DATTA
Date: 2021.08.03 17:22:07 +05'30'
Adobe Reader version: 11.0.8