Laxman vs State Of M.P.
2021 Latest Caselaw 3193 MP

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     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. 1043/2008
                      (Laxman V/s. The State of M.P.)

     •   Shri Vivek Singh, learned counsel for the appellant.
     •   Shri Amit Singh Sisodiya, learned Govt. Advocate for the
         respondent/State.
                             JUDGEMENT

(Reserved on 13th day of July, 2021) (Delivered on 13th of July, 2021) Per Vivek Rusia, J:

The appellant has filed the present criminal appeal being aggrieved by the judgment passed by the learned Second Addl. Sessions Judge, (Fast Track) Kukshi, District Dhar dated 09.04.2008 in Sessions Trial No.174/2007 whereby the appellant has been convicted under Section 302 of the IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and in default of payment of fine additional six months R.I.

2. As prosecution story, on 24.04.2007 Sayari Bai resident of Chitwara was in her house along with her son and her husband Narpat (deceased) came to house nearabout at 5 p.m. Thereafter, Laxman bheel (the appellant) also came there to take Narpat for consumption of Liquor. According to the Sayari Bai, Narpat had already consumed the liquor therefore she resisted him to go with Laxman Bheel. Laxman Bheel despite objection by Sayari Bai took Narpat with him. Sayari Bai and her son followed them and when they reached the agricultural field of Pachhaya, the appellant : Laxman Bheel who was carrying a Faliya in his hand and gave a blow on the back side of the neck of Narpat and he fell down. Sayari Bai shouted and rushed towards Narpat but Laxman Bheel ran towards her, Sayari Bai and her son ran to home to save from Narpat. According to the Sayari Bai along with Laxman Bheel three more persons were also standing there. She narrated the entire story to Chowkidar and Kela Bai. According to her Narpat went to Gujarat in search of the job

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along with Laxman Bheel and there was a dispute between them in respect of payment of wages and due to which the appellant killed him. The police has registered the offence at crime No.53/2007 under Section 302 of the IPC against the appellant and started the investigation. Vide Annexure-P/6 Naksha Panchanama was prepared and dead body of Narpat was sent for post mortem. The statement of witnesses was recorded and the appellant:Laxman Bheel was arrested and the Faliya was recovered. Since the cloths of Laxman Bheel and Faliya were containing the blood stains therefore they were sent for FSL. After completing the investigation police filed the charge sheet before the Judicial Magistrate First Class, Kukshi under Section 302 of the IPC against Laxman, Ghatiya, Hemtiya and Bherla.

3. The trial was committed to the Sessions Court where the charges under Sections 302 and 34 of the IPC was framed against all the four accused. All the accused persons abjured the guilt and pleaded for trial.

4. In order to prove the charges against all the accused the prosecution has examined as many as 10 witnesses viz. Ghatibai, Dr. N.K. Chhari, Kheru, Raalu, Sayaribai, Rakesh, Bhavsingh, Remsingh, Kelabai and K.S. Rawat as P.W.-1 to P.W.-10 . In defense the appellant and others did not examined any witnesses. After appreciating the evidence came on record the learned Second Addl. Sessions Judge, Kukshi has acquitted other three accused namely Ghatiya, Hemtiya and Bherla as they were not named in the FIR and convicted this appellant under Sections 302 and 34 of the IPC. Hence, the present appeal before this Court.

5. Shri Vivek Singh, learned counsel for the appellant argued that Sayari Bai (PW-5) lodged an FIR against the appellant that on the date of incident he came to her house to take her husband for consumption of liquor and despite her objection Laxman Bheel forcibly took with him, she followed him and saw that Laxman Bheel gave a blow by Falilya and because of which he died. Accordingly to her there were four to five persons were standing there. She came back and informed to Chowkidar

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whose name has not been disclosed in the FIR and did examined by the police in this case. In cross-examination on 27.11.2007 she named Laxman Bheel, Ghatiya, and Hematiya but except appellant other three accuse have been acquitted by the trial Court on same set of evidence. In her statement she has not disclosed her son Rakesh (PW-6) was with her. She left the dead body of her husband in the field and lodged a report at police station at 12:30 p.m. of next day. In cross-examination she had admitted that she lodged FIR against Laxman Bheel alone and did not recognized others. In cross-examination she has further admitted that there was some dispute with Laxman Bheel in respect of payment of wages for the work done in Gujarat. Shri Singh has further referred the statement of Rakesh (PW-6) who was 8 years of age at the time of recording the statement. According to him he was with his mother and witnessed Laxman Bheel, Ghatiya, Hemtiya assaulting his father. He also took name of Chowkidar. Shri Singh has pointed out various omissions and contradictions in the statement that when Laxman Bheel came to his house his father was sleeping and on the basis of suspicion the FIR has been lodged against Laxman Bheel. The witnesses Remsingh and Bhavsingh came there after hearing the screaming voice of his mother, but Remsingh and Bhavsingh have not supported the case of the prosecution. Learned counsel further submitted that the delay in lodging the FIR has not been explained and the conduct of PW-5 is un-natural as she left the dead body of her husband from the scene of crime and reached to the spot on the next day along with the police. She never tried to take her husband to the hospital for treatment therefore, the testification of Sayari Bai (PW-

5) in the court is not trustworthy and on this sole testimony without there being any corroboration this appellant has been wrongly been convicted under Section 302 of the I.P.C., hence he entitled for acquittal.

6. Shri Amit Singh Sisodiya, learned Govt. Advocate for the respondent/State has argued in support of the judgment by submitting that the conviction is not based on the sole testimony of Sayari Bai (PW-5) whereas Rakesh (PW-6) and Kelabai (PW-9) have fully supported the case

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of prosecution. In cross-examination the PW-5 and PW-6 both have admitted that there was a previous dispute between the deceased and Laxman Bheel in respect of payment of wages for the work done in Gujarat. The blood stain cloths and faliya was recovered from the possession of this appellant therefore, the conviction under Section 302 of the IPC is justified and no intervention is called for.

7. The injury sustained by the deceased as per post mortem report are given below:-

-Dead body in prawn position

-Eyes closed, pupil dilated fixed.

-All head, face and Shirt contaminated with blood.

-Incised wound seen over upper region of occipital region 7x3x5cm, occipital bone (right to left) cutting 5x2 cm, brain matter seen by naked eye which is caused by sharp edged object.

-Incised wound cut over lower occipital region of head. 8x3x2cm incised wound that area right ear by sharp edged object in same attempt.

-Contused incised wound over neck back side 5x2cm x 2cm both end contused, middle-incised by sharp edged object.

-One vertical contusion that over occipital region 7x 2 cm

-Incised wound that over right shoulder joint 5x2x3 cm liquidity present over ventral region of body.

-Clotted blood that over all wound.

-All wound are horizontal in position.

-Fracture seen at occipital bone which is incised in nature and Dislocation of occipital Atlanto Joint.

-Death is caused by brain and spinal cord injury

-Death within 24 hrs.

The aforesaid PM report and deposition of Dr N.K.Chhari (PW-2) deceased Narpat died because of the aforesaid antemortem injuries and there was no challenged to the findings recorded by the learned trial court about the cause of death therefore there is no reason to re-appreciate the evidence, hence same are here by confirmed .

8. The only which issue requires consideration by us that is that the aforesaid injuries were caused by the means of Faliya at 8 p.m. on 24.04.2007 by the appellant . As per the FIR lodged on 25.04.2007 by Shayari Bai (PW-5) that on 24.04.2007 her husband Narpat came back to the house at that time she was preparing the dinner and at that time Laxman Bheel came and tried to take with him for consumption of liquor, since he had already consumed the liquor therefore she objected it but

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Laxman caught his hand and took along with him. Kelabai her sister-in- law (Jethani) who was also present there also objected it. Shayari Bai and her son followed them to some distance. Near about 8 p.m. they reached at the agriculture field of Pachhaya, there Laxman who was carrying faliya gave blow on the neck of Narpat and he fell down. She shouted for the help and Laxman to ran towards them and they returned back to the house but she could not identified three to four persons standing on the agriculture field She narrated the entire episode to Remsingh, Bhavsingh and Kelabai sister-in-law and went to the spot and saw that Narpat had died. She has also disclosed that in the last year on Dipawali festival they went to Gujarat in search of work where the Laxman got them engaged in the work and did not make the payment of the work and because of that there was enmity with Laxman Bheel. FIR was registered against Laxman Bheel alone. He was arrested by the police on 08.05.2007 and his statement was recorded and on his disclosure the Faliya was recovered from his house. According to the prosecution the blood stains were found on Faliya as well as from the cloths of Laxman. But according to the FSL report all were human blood but disintegrated. The police has arrested three other accused persons in this case. One Faliya was recovered from the possession of accused Ghatiya. As per the spot map the distance between the house of deceased Narpat and the scene of crime is 380 steps and the appellant's house is 15 steps ahead of the house of the deceased Narpat.

9. Except PW-5, PW-6 and PW-9 other independent witness have not supported the case of the prosecution. Since the PW-5 did not take the name of the other three accused in the FIR therefore, they have been acquitted by the trial Court and no other criminal appeal has been filed against the acquittal. That Laxman Bheel came to the house of deceased and took him has been established by PW-5, PW-6 and PW-9. As per theory of last seen together the appellant took Narpat with him and thereafter the dead body of Narpat was found. The PW-5 and PW-6 have been examined as eye witness and in the cross-examination they remained

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strict to their stand taken in the examination-in-chief. Both the PW-5 and PW-6 tried to implicate other 3 accused who have been acquitted but her testimony in respect against the appellant cannot be doubted.

10. The PW-6 was 8 years old at the time of incident and examination in chief therefore minor omissions and contradiction can be ignored. The boy who had witnessed the brutal murder of his father cannot be expected to narrate the entire story to the Court with all minute descriptions ,therefore, the minor omissions/ contradictions in the statement of the PW-6 is liable to be ignored.

11. Shri Singh has raised the issue about delay in lodging the FIR but the explanation is given in the FIR that there was no means of transport in the night she could not reached to the police station in time. The FIR was lodged and thereafter the dead body was recovered from the place disclosed by PW-5 in the FIR. There is a recovery of Faliya and blood stain cloths from the possession of the appellant. In the cross-examination a suggestion has been given about the motive that they have been in a dispute for payment of wages for the work done in the state of Gujarat, therefore, we do not find any ground to interfere with the judgment passed by the learned Second Addl. Sessions Judge, (Fast Track) Kukshi, District Dhar dated 09.04.2008 in Sessions Trial No.174/2007 whereby the appellant has been convicted under Section 302 of the I.P.C.

Accordingly, the criminal appeal fails and dismissed.

                 (VIVEK RUSIA)                                                                               (SHAILENDRA SHUKLA)
                    JUDGE                                                                                           JUDGE
       Ajit


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