Deepak @ Dilla vs The State Of M.P.
2021 Latest Caselaw 4452 MP

                                            1                 CRA Nos.519-574/2002

    HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
    DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA
                               HON'BLE MR. JUSTICE SHAILENDRA SHUKLA



                       CRIMINAL APPEAL NO.519 OF 2002
    (1) Deepak @ Dilla S/o Govindram
        Age 24 years,
        Resident of 69, Gordhan Dham Nagar,
        District - Ujjain (MP)

                                                                          ....Appellant
                                            Versus



      The State of Madhya Pradesh
      Through Police-Station - Madhavnagar
      District - Ujjain (MP)

                                                                         .....Respondent

                                              And


                       CRIMINAL APPEAL NO.574 OF 2002

        Pankaj @ Gabbu S/o Shri Praveen Kumar
        Age 21 years,
        Resident of 173, Santram Sindhi Colony,
        District - Ujjain (MP)
                                                                            ....Appellant

                                            Versus


        The State of Madhya Pradesh
        Through Police-Station - Madhavnagar
        District - Ujjain (MP)

                                                                          ....Respondent
--------------------------------------------------------------------------------------------------
        Shri A.S. Garg, learned senior counsel along with Shri G.S. Yadav,
        counsel for the appellants.
        Shri Sudhanshu Vyas, learned counsel for the respondent /State of
        Madhya Pradesh.
------------------------------------------------------------------------------------
                                      2               CRA Nos.519-574/2002

                          JUDGMENT

(Delivered on 18th day of August 2021)

Per Shailendra Shukla, J.

These appeals under Section 374 of Code of Criminal Procedure, 1973 have been preferred against the judgment dated 02.05.2002 passed by the 2nd Additional Sessions Judge, Ujjain (M.P.) in Session Trial No.67/2002, whereby the appellants have been convicted and sentenced as under:-

     Conviction       Sentence                Fine         Imprisonment in
                                                            lieu of payment
                                                                 of fine
     u/S. 302/34   Life Imprisonment     Rs.2,000/- each     2 years' S.I.
         IPC
     u/S. 307/34     5 years' R.I.       Rs.1,000/- each     1 year's S.I.
         IPC

2. Precisely speaking, the prosecution story in short was that on 03.12.2001, while the victim Tulsiram was sitting in his shop called 'Bandhan Marriage Card Gallery' situated in the basement of Lalwani Tower at Shahid Park, Ujjain along with two of his friends namely Naresh Upmani and Ram Devnani, at about 8:30 pm the co-accused Mukesh (since expired) came to his shop which was situated below the staircases and told him that appellant Pankaj @ Gabbu is calling him. Tulsiram climbed up the stairs and when he came near the channel gate of lalwani tower, the appellant Pankaj @ Gabbu and appellant Deepak @ Dilla had attacked him with knives. At that point of time, the friend of Tulsiram namely Naresh Upmani (deceased) also came up at the spot and tried to intervene but accused Mukesh stabbed him on left side of his chest resulting in his death on the spot. Tulsiram suffered injuries on thighs of both

legs. At the time of incident, the son of Tulsiram namely Dilip Dhanwani who runs his own shop called 'Yahoo Internet Parlour' adjacent to his father's shop had come there and had witnessed the incident. It was Dilip Dhanwani who had lodged the report in Madhavnagar Police-Station, Ujjain nearly 45 minutes after the incident. Thereafter investigation was initiated and Investigating Officer, Mr. Y.P. Singh (PW/13) who was Station House Officer at Police Station Madhav Nagar, Ujjain, after recording the FIR (Ex.P/1) went to the spot and drew the spot map. This witness had recorded the statements of Dilip Dhanwani and then arrested the appellants Mukesh and Deepak and seized their shirts. He initiated the merg proceedings and executed the Panchnama of the corpse of Naresh Upmani.

3. Doctor B.K. Gupta (PW/6) had carried out the postmortem of the body of deceased Naresh Upmani. Rest of the investigations were carried out by ASI Shyam Sundar Mishra (PW/14) who had recovered the knives from the appellants and on the basis of their memorandum, knife was also recovered from co-accused Mukesh (who has since expired). After completing rest of the residual investigation, charge-sheet was filed in the matter before the JMFC Ujjain, who committed the matter to Sessions Judge, Ujjain. The learned Presiding Officer has framed charges under Sections 307/34, 307, 302/34 and 302 of IPC against all the three accused persons. The accused persons abjured their guilt claiming innocence and have examined two defense witnesses in their support.

4. The prosecution has examined fourteen witnesses in all. The Presiding Officer after conclusion of trial, has gone on to convict and sentenced all the three accused persons (appellants), as described above.

5. Separate appeals were filed by all the three accused persons so convicted and sentenced, however during the course of appellate proceedings, the co-accused Mukesh expired and consequent to which his appeal has been abated.

6. The appellants in their appeals filed under Section 374 Cr.PC have stated that the conviction of appellants are not based on proper appreciation of evidence. The injuries suffered by Tulsiram were on non-vital part of body and were simple in nature. Hence, no case was made out for convicting them under Sections 307/34 of IPC. The eye-witness Dilip Dhanwani who has lodged the FIR was in fact not present on the spot when the incident occurred and he has also expressed in his cross-examination that he had told the police in the hospital that it may be that the appellant Mukesh had a hand in the incident. Such statements itself show that Dilip was infact not the eye-witness. The statements of Tulsiram have been recorded very belatedly i.e. after the gap of 15 days from the date of incident and there is no satisfactory and reliable explanation offered for the same. It has been stated in the appeals that it was surprising that although appellants had arrived at the hospital after the incident but surprisingly no FIR was drawn at the hospital itself. It has further been submitted that FIR does not contain the name of witness Ram Devnani who appears to be a tutored witness. During the course of

submission, it has also been pointed out that in this matter the FIR, however, has been lodged prior to initiation of merg proceedings. The merg has been instituted at 9:30 pm, whereas FIR was lodged at 9:15 pm. On these grounds, these appeals have been sought to be allowed.

7. The main question before us is whether in view of the grounds contained in the appeal memo, as also the oral submissions made by learned Senior Counsel for the appellants, judgment of conviction of appellants deserves to be set-aside and the appellants could be acquitted from the charges, as aforesaid ?

8. It would first be appropriate to consider as to the involvement of appellants in causing injuries to Tulsiram and whether such injuries were inflicted in order to commit his murder.

9. Tulsiram (PW/3) has stated that while he was sitting in his shop - Bandhan Marriage Card Gallery situated in the basement of Lalwani Tower at about 8:30 pm along with his friends Naresh Upmani and Ram Devnani, the accused Mukesh told him that appellant Pankaj @ Gabbu is calling him. As per the witness, he went upstairs along with co-accused Mukesh, where he found the appellants Pankaj and Deepak standing near the channel gate. As per this witness before he could even talked to them, both had attacked him. The appellant Pankaj inflicted knife injuries on his left leg, whereas Deepak dealt knife injury on right leg.

10. Doctor C.L. Banodiya (PW/4) has stated that he had examined Tulsiram while he was posted as Assistant Surgeon in the District Hospital at Ujjain and found two incised wounds on each of his thighs. The injury on the left thigh was 2x1/4 muscle deep injury on the medial side of the centre of left thigh and while in the right thigh there was a stab injury and on the lateral side of lower part of right thigh the injury is 3x1/4 muscle deep. These injuries were caused by sharp and hard object within 1 - 6 hours. The report is Ex.P/5 carrying signatures from 'A to A' part of the witness. The witness has stated that he has admitted the patient and had referred to him to RSO in order to determine the nature of injuries.

11. Doctor Harish Rathore (PW/2) states that he was posted as Assistant Surgeon in the district hospital at Ujjain and had examined Tulsiram who was admitted in the surgical ward. He found that there had been no excessive bleeding from his wound and his general condition was good. The report is Ex.P/3.

12. Doctor C.L. Banodiya (PW/4) has admitted that thighs are non vital parts of the body. There is nothing in the evidence of medical specialist Dr. C.L. Banodiya (PW/4) and Dr. Harish Rathore (PW/2) which would indicate that injuries suffered by Tulsiram (PW/3) were of serious nature. Admittedly, the injuries were not caused on vital parts of the body of Tulsiram. The manner in which Tulsiram was attacked shows that there was no intention to commit murder of him by the accused persons and that the injuries on Tulsiram although caused by hard and sharp object but considering the fact that they were simple in

nature and not on the vital parts of his body and thus only the provisions of Section 324/34 of IPC would be attracted and not the provision of Section 307/34 of IPC. Whether these injuries were caused by the appellants is the only question remains to be seen ? As already stated, the witness Tulsiram (PW/3) has leveled allegations against only these two appellants who had attacked Tulsiram with knives. The knives have been seized from the possession of both these appellants as per the evidence of Shyam Sundar Mishra (PW/14).

13. The memorandum of appellant/accused Deepak is Ex.P/11 and the recovery memo of knife is Ex.P/13. Similarly on the basis of memorandum statement of appellant Pankaj @ Gabbu Ex.P/8, recovery memo of knife was drawn as per Ex.P/9.

14. The witness Tulsiram (PW/3) states that grand daughter of brother of witness had eloped with appellant Pankaj @ Gabbu, who however turned her away after two months and then report was lodged by the girl against him consequent to which Pankaj was kept in the judicial custody for three months and that is the main reason for enmity with appellant Pankaj. However, later on the matter ended in compromise. Thus it appears that appellant Pankaj @ Gabbu and Tulsiram were on inimical terms with each other. However, it is settled that the factum of there being inimical relation works as a double edged sword, meaning thereby, that the previous enmity can be a ground for false implication on one hand and can also be a ground for inflicting injuries to one of the parties by another party. In the cross-examination of Tulsiram (PW/3), the

statements made by him in examination-in-chief have not been challenged as far as they relate to injuring him with knives by the two appellants.

15. Hence after due consideration both the appellants ought to have been convicted for committing offence under Section 324/34 of IPC and not under Section 307/34 of IPC.

16. Now adverting to the involvement of appellants in committing the murder of Naresh Upmani and the evidence available on record would be revisited.

17. Tulsiram Dhanwani (PW/3) has stated that after he was attacked by both the appellants and on hearing his cries, Naresh Upmani also came upstairs and tried to intervene but the accused then told each other that Naresh Upmani appears to be a great sympathizer of Tulsiram and hence he should also be done away with. Thereafter appellants Pankaj and Deepak held Naresh Upmani and coaccused Mukesh inflicted knife injuries on the left side of chest of Naresh and he was shifted to ICU but expired soon thereafter. Thus, the involvement of appellants in committing murder of Naresh Upmani is that they held Naresh Upmani when accused Mukesh had stabbed him. The police statement of Tulsiram (PW/3) have been recorded on 04.12.2001 i.e. on the next day of incident.

18. Y.P. Singh (PW/13) who has recorded the police statements of Tulsiram has clarified in para 18 that the statements of Tulsiram were not recorded on the night of incident because he had been hauled into the operation

theatre. This witness has perused the case diary and has shown the same to the Court in which it has been mentioned that the statements of Tulsiram could not be recorded because he was admitted in the surgical ward.

19. It has already been found that after Tulsiram Dhanwani (PW/3) was injured he had indeed been admitted in the surgical ward in order to determine the nature of his injuries. Hence, no unusual delay was committed by the Investigating Officer in recording the statements of Tulsiram. There are no major contradictions or omissions in the evidence of Tulsiram (PW/3) who has stated that both the appellants had held Naresh Upmani and thereafter accused Mukesh had stabbed him.

20. Doctor C.L. Banodiya (PW/4) has stated that Tulsiram (PW/3) had brought along with him Naresh Upmani (deceased) and had found Naresh Upmani to be in gasping condition. He was immediately admitted in the hospital ward on 03.12.2001 and the report is Ex.P/6.

21. Doctor B.K. Gupta (PW/6) has conducted the postmortem of body of Naresh Upmani (deceased) on 04.12.2001. As per this witness, there was a stab wound 3x1/2 muscle deep on the left nipple which on cross-examination was found to be such injury which had entered into the interiors of heart extending up-to right atrium after piercing the heart membrane and the muscles of heart. The injury was antemortem and caused by sharp and hard object and the cause of death was shock resulting from injury to vital organ i.e. heart. The postmortem

report is Ex.P/7. This injury was sufficient to cause death in the ordinary course of nature as per the witness. Apart from this injury, there was another injury in the form of abrasion on the left knee measuring 4x1/2 cm situated on the left knee.

22. The evidence of Dr. B.K. Gupta (PW/6) has not been controverted/challenged in the cross-examination and therefore it is found proved that deceased Naresh Upmani had succumbed to his injury on his vital organ i.e. heart and the injury was so serious that it was sufficient in the ordinary course of nature to cause death. This shows that it was a matter of culpable homicide.

23. Mr. Shyam Sundar Mishra (PW/14), ASI has stated that on the basis of memorandum of co-accused Mukesh (PW/10), knife has been seized from his possession as per Ex.P/12.

24. There is FSL report on record though not exhibited which shows knife article seized from co-accused Mukesh carrying human blood.

25. There are other witnesses also whose evidence needs to be considered.

26. Dilip Dhanwani (PW/1) has stated that he is the eye- witness of the incident and as per this witness he was sitting in his shop - Yahoo Internet Parlour and at around 8:30 pm, he heard cries of his father who was asking for help and to be saved. The witness states that he ran over and saw that Naresh Upmani have been caught hold of by appellants

Deepak and Pankaj and co-accused Mukesh stabbed knife injury on the chest of deceased Naresh Upmani. The witness states that he took his father to the hospital and treatment was given to his father but he could not be saved and was declared to be dead. Thereafter he came to the Police-Station Madhav Nagar, Ujjain for lodging the report which is Ex.P/1. In cross- examination, he admits that on the day of incident and also in proximate days, the shops used to be shut down at 7:30 pm. However, he states that shop Bandhan Marriage Card Gallery closes down at 9:00pm and his own shop Yahoo Internet Parlour closes at 10:00 pm. In para 9 he states that at the time of incident he was due to close his shop and hence he remembers time.

27. Learned senior counsel for the appellants has drawn the Court's attention to paras 23 and 25 of the judgment of trial Court in which the witness in para 23 admits that the police had come to the hospital and therefore he did not lodge any report in the hospital. In para 25 also, he admits that he did not narrate the incident to the police in the hospital. He was specifically asked as to what did he tell the police in the hospital. To this, the witness replies that he told the police that it may be that these three accused persons were involved in committing the offence.

28. Learned senior counsel for the appellants submitted that such statement by the witness itself shows that the evidence was conjectural in nature and he was not an eye-witness of the incident. He has also drawn the Court's attention to the fact that in the FIR Ex.P/1, he has not stated that at the time of

incident his father was sitting in his shop along with Naresh Upmani and Ram Devnani but the witness states that he may not have mentioned about their presence due to lack of memory.

29. The evidence of Dilip Dhanwani (PW/1) was considered. This witness has lodged the report / FIR Ex.P/1. In Ex.P/1 there is no mention of the fact that appellants had caught hold of Naresh Upmani and co-accused Mukesh stabbed him. Such statements are made for the first time before the Court. This is a major contradiction in his court statement and in the FIR. In FIR Ex.P/1, he states that he and other shopkeepers ran after the accused but they had fled from the spot. When confronted with such statement, the witness in para 19 has stated that if such statements are there in the FIR then he must have stated so in a jiffy but the truth is that he had not followed and tried to catch the accused persons. Further, as already stated above, he himself admits in para 25 that he had told the police in the hospital that these three persons may be involved in committing the offence. Thus, this witness is not reliable when he states that appellants had caught hold of deceased Naresh Upmani, when co-accused Mukesh stabbed him.

30. Another witness is Ram Devnani (PW/10). This witness states that he was sitting with Tulsiram and Naresh Upmani in the shop of Tulsiram, when at about 8:30 pm co-accused Mukesh came and told Tulsiram that appellant/accused Pankaj @ Gabbu is calling him upstairs. Tulsiram went up and he was followed by his friend Naresh and the witness also. As per the witness, as soon as Tulsiram arrived near the channel gate of

Lalwani Tower, accused/appellants Pankaj and Deepak inflicted knife injuries on Tulsiram. The deceased Naresh had taken initiative to intervene but at that point of time all the three accused told each other that Naresh is trying to intervene, therefore he should be dealt with first. The witness states that thereafter Pankaj and Deepak caught hold of Naresh, co- accused Mukesh dealt knife blow on him. When Tulsiram cried aloud seeking help, the accused fled from the spot. The witness has admitted that his statements were recorded 14 - 15 days after the incident. He states that 3 - 4 days after the incident he had gone to attend the marriage of his nephew in Pune (Maharashtra) and when he came back his statements were recorded. This witness has been asked questions in para 24 as to whether he had made such statements before the police in Ex.D/3 that he was climbing upstairs and was slowly coming down due to pains in his legs. The witness although admits that he has to seek support for climbing the stairs but denies that he had made any such statements that he was climbing the stairs slowly. Ex.D/3 was perused in which there is indeed a mention that the witness was climbing the stairs slowly. The witness also states that he is the relative of Tulsiram and is also a friend to him. This suggestion has been admitted by the witness in para 6. He states that he has been frequenting the shop of Tulsiram since last 25 - 30 years and 2

- 3 times in a week. This witness has been asked as to whether in Ex.D/3, he had made such statements that co- accused Mukesh had suddenly stabbed Naresh Upmani (deceased) because he came later to intervene. The witness denies the suggestion and states that he had specifically mentioned in Ex.D/3 that both the accused persons had caught

hold of Naresh and told that this person is interfering in the matter and therefore he be dealt with first and then co-accused Mukesh stabbed Naresh due to which he succumbed to his injuries.

31. Mr. Shyam Sundar Mishra (PW/14), the ASI of Police- Station, Madhav Nagar, Ujjain, has admitted that the statements of Ram Devnani (PW/10) were recorded fifteen days after the incident. He states that the name of Ram Devnani as a eye-witness had made it clear in the FIR only and then immediately admits in para 14 that it is true that the name of Ram Devnani (PW/10) is not there in the FIR.

32. Learned senior counsel for the appellants submitted that there is no mention of witness Ram Devnani (PW/10) in the FIR and there is no reason to record his statements 15 days after the incident. Hence, his statements are not reliable.

33. Considered.

34. Although the name of Ram Devnani (PW/10) does not figure in the FIR lodged by Dilip (PW/1), however his presence has been affirmed by Tulsiram (PW/3) whose statements have been recorded just one day after the incident. Tulsiram (PW/3) has stated in para 26 that Ram Devnani (PW/10) has stated in para 26 that Ram Devnani had accompanied him in the hospital. The witness Ram Devnani (PW/10) himself has stated that he along with Rajendra and Dilip had taken Tulsiram and Naresh in the auto-rickshaw to the hospital. The reason for the delayed recording of statements mentioned by Ram Devnani

(PW/10) is also acceptable as PW/10 states in para 19 that he had gone to Pune 3 - 4 days after the incident from where he had returned after 4 - 5 days. No query has been made to Shyam Sundar Mishra (PW/14) as to why statements of Ram Devnani were recorded 15 days after the incident. Presence of Ram Devnani (PW/10) on the spot has also been affirmed by another witness Rajendra Sharma (PW/5) who has also stated that he had seen three persons running from the spot of incident and had seen the blood oozing out of legs of Tulsiram and another person whom he does not know had also seen by him and blood was coming out from his body as well. This witness has stated that at the time of incident he was having his haircut in the 'Monopal Hair Cutting Saloon'. He states that after cutting his hair he soon went to the spot of incident and heard the cries 'cpko & cpko'. Thereafter he looked towards the direction and saw three persons running from the spot of incident. In para 6, he states that he went to the hair saloon only to trim his beard and does not indulge in clean shaving. There is no reason to disbelieve this witness.

35. It has already been found that the statements of Tulsiram (PW/3) are reliable as far as he states that he was stabbed by appellants. Regarding the involvement of co-accused Mukesh in stabbing Naresh, Tulsiram has stated that after he was stabbed, he cried aloud, Naresh (deceased) also came upstairs to intervene and at that point of time, the accused had told that Naresh is showing too much sympathy and therefore he be done away with (bls fuiVk nks) and saying so, the appellants/accused Pankaj and Deepak caught hold of Naresh

Upmani and co-accused Mukesh dealt knife blow on the left side of chest of Naresh resulting in his death. There are no major contradictions and omissions in his cross-examination regarding the aforesaid statements.

36. Thus, in view of the reliable statement of Tulsiram (PW/3) and Ram Devnani (PW/10), it is found proved that both the appellants had caught hold of Naresh Upmani (deceased) and co-accused Mukesh had stabbed Naresh on his chest resulting in his death.

37. As already stated by the Doctor who has conducted the postmortem of body of Naresh, the injury was sufficient in the ordinary course of nature to cause death. The words uttered by the accused persons while holding the deceased Naresh that Naresh be dealt with first or Naresh be done away with first (bldks fuiVk nks) shows that they intended to eliminate Naresh who was trying to intervene in the matter. The intention to commit murder can be formed on the spur of moment which appears to be a case here. Thus, it is proved that appellants shared common intention in committing the culpable homicide of Naresh Upmani (deceased). The injury was sufficient in the ordinary course of nature to cause death, hence the act comes within the purview of "thirdly" of Section 300 IPC. There are no circumstances which would show that it was culpable homicide not amounting to murder.

38. Consequently, we are of the considered opinion that the appellants have been rightly convicted and sentenced by the trial Court under Section 302/34 of IPC. The conviction and

sentence of appellants under Section 302/34 of IPC is thus affirmed. However, the conviction of appellants under Section 307/34 of IPC is set-aside and instead the appellants are found to be guilty for committing offence under Section 324/34 of IPC instead of Section 307/34 IPC and to that extent, this appeal is partly allowed. Coming to the sentence part, the appellants are convicted and sentenced to one year of RI each along with fine of Rs.1000/-each under Section 324/34 IPC and the sentence imposed under Section 307/34 of IPC of five years of RI is set- aside. The jail sentences of appellants under Section 302/34 and 324/34 of IPC shall run concurrently. The appeal stands partly allowed in respect of offence under Section 307/34 of IPC.

39. A copy of this judgment along with record of trial Court be sent to the trial Court for compliance.

40. The appellants are on bail. Their bail bonds are discharged and they shall surrender before the trial Court and from where they shall be consigned to jail. The disposal of the property shall be as per the order of trial Court.

The signed order of this case be kept in the file of Criminal Appeal No.519 of 2002 and a copy thereof be placed in the connected Criminal Appeal No.574 of 2002.

                 (VIVEK RUSIA)                  (SHAILENDRA SHUKLA)
                   JUDGE                               JUDGE

  Arun/-

Digitally signed by ARUN
NAIR
Date: 2021.08.23
17:12:05 +05'30'