Kanhaiya Lal vs State Of M.P.
2021 Latest Caselaw 3508 MP

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   HIGH COURT OF MADHYA PRADESH: BENCH AT
                             INDORE
            D.B.:Hon'ble Shri Justice Vivek Rusia
         Hon'ble Shri Justice Shailendra Shukla, JJ.
                 Criminal Appeal No.252/2009
                (Kanhaiya Lal Vs. State of M.P.)

      Shri Saiyad Ashif Ali Warsi, learned counsel for the
appellant.

     Ms.Mamta Shandilya, learned Government Advocate for the
respondent/State.
                         JUDGMENT

(Delivered on 22 July, 2021) PER VIVEK RUSIA, J:-

This appeal is filed against the judgment dated 01.01.2009 passed by Sessions Judge Shajapur in Session Trial No.191/2008 whereby the accused/appellant has been convicted for the offence punishable under Section 302 of I.P.C. of I.P.C. and sentenced to undergo life imprisonment and a fine of Rs.500/- in default to suffer rigorous imprisonment for 6 months.

(2). The prosecution case was set into motion after the registration of Dehati Nalishi at the instance of Ramgopal S/o Bhagirath, who is the younger brother of the deceased: Ramchandra who owned an earth removal machine, which was given the appellant: Kanhaiyalal to operate. Yesterday at 07:00 P.M., Ramchandra came to his house and took with him on the motorcycle to the house of Kanhayalal for settlement of account of the aforesaid machine. They reached house of the appellant: Kanhaiyalal at 10:00 PM. Ramchandra demanded the details of the expenditure, Kanhaiyalal called him inside and became annoyed with him as to why he (the complainant) came alongwith Ramchnadra and ran towards him. He ran to save himself and

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came back to his house and slept. On the next day, he received the information about the death of his brother Ramchandra and his dead body was found in the house of the accused with several ante-mortem injuries and blood all over the body. The Kanhaiyalal and his wife Premabai were not present in the house. After registration of the aforesaid merg, the police reached the spot prepared a Naksha Panchanama (Ex.P/3). The dead body was recovered and sent for postmortem. The spot map vide (Ex. P/5) was prepared. As per the postmortem report, the deceased sustained as many as 12 injures on various parts of the body and all were ante-mortem in nature and as per the opinion of the doctor, the cause of death was shock and due to injuries all over the body. The Police registered the FIR against the appellant and his wife Prema bai for the offence punishable under Section 302/34 of I.P.C. Police recorded the statement of witnesses and after completing the investigation, charge-sheet was filed against the appellant and his wife .

(3). Learned Session Judge charged them under Section 302/34 of I.P.C. and they pleaded not guilty and claimed for trial. They took a plea that they are innocent and falsely been implicated in the present crime.

(4). In order to establish charges, the prosecution has examined 11 witnesses and got exhibited 24 documents as Ex.P/1 to Ex.P/24. In defence accused did not examine any witnesses but got exhibited four documents as D/1 to D/4. Both accused in their statement recorded under Section 313 of Cr.P.C. denied the case of the prosecution.

(5). After evaluation of evidence on record and hearing learned counsel for the parties, the learned Session Judge vide judgement dated 01.01.2209 has acquitted the Smt. Premabai but convicted the accused/ appellant guilt under Section 302 of I.P.C. and

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sentenced him to undergo life imprisonment with fine. Aggrieved by the aforesaid judgment, the appellant has filed the instant appeal.

(6). Learned counsel for the appellant submitted that the entire case is based on circumstantial evidence. The conduct of Ramgopal (PW-1) is doubtful. According to him, he came back to his house after leaving the deceased Ramchandra in the house of the appellant and slept, he did not give any information to the wife of the deceased and police despite knowing that his brother was assaulted by the appellant and others. The appellant and his wife were not arrested at the scene of crime. Nothing has been recovered from their possession. Learned counsel for the appellant further submits that there are omissions and contradictions in the statement of Nanibai (PW-4). She disclosed to the police that her husband went to the house of the appellant with an amount of Rs.45,000/- in his pocket ,which was not found in his body. There is the failure of investigation about the recovery of Rs. 45,000/- which makes the story of prosecution is doubtful. It is further submitted by the learned counsel that the house of the appellant was not found locked in the morning then how the dead body of the deceased came inside the house of the appellant, has not been proved by the prosecution. It is not the case of the prosecution that the house was locked from the inside and after breaking the door they entered inside the house and found the dead body. On the same set of evidence co-accused Prema Bai has been acquitted by the Sessions Court. It is not clear from the prosecution story, how the police came to know that a dead body of the deceased was lying inside the house of the appellant because the Ramgopal (PW-1) did not inform anyone till morning that he left the deceased in the house of the appellant. Learned counsel further argued that in FIR (Ex.P/1) it is written

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that Ramgopal (PW-1) and deceased reached the house of the appellant about 10:00 PM whereas Ramgopal (PW-1) in his deposition said that they reached at about 09:00 PM, and Nanibai (PW-4) stated that deceased and Ramgopal (PW-1) went to the house of the appellant between 08:00 to 09:00 PM. These contradictions have been overlooked by the learned trial court. The theory of last seen is also not established. A complete chain of events is missing in order to uphold the conviction by way of circumstantial evidence. Hence, the appellant is liable to be acquitted.

(7) The public prosecutor appearing for the State argued in support of the judgment by submitting that Ramgopal (PW-1) and Nanibai (PW-4) deposed that on the night of 24.04.2008, the deceased went to the house of the appellant and on the next date his dead body was found inside the house. It is not the defence of the appellant the aforesaid house does not belong to him. Shivnaranayn (PW-8), Sarpanch of Gram Panchayat went along with the police and found the dead body of the deceased lying in the house of the appellant with injuries and blood all over the body. So far as the information of death is concerned, Shri Niwas Mishra (PW-11) in para 2 has testified that on 24.04.2008 near about 06:45, he received telephonic information from Ramgopal that his brother Ramchandra went to the house of the appellant and thereafter he did not return to home . The entry was recorded in the daily diary at serial No.851 (Ex.P/22). Thereafter, he went to the house of the appellant where he found the crowd in front of his house, who informed him that the deceased was lying inside the house of the appellant. Thereafter, he found a dead body near fireplace, therefore, the trial court has not committed any error while convicting the appellant. Hence, the appeal is liable to be dismissed.

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(8). I have heard learned counsel for the parties at length and perused the record.

(9). Ramgopal (PW-1) has testified that his elder brother took him in his motorcycle to the house of the appellant in order to settle the account of the earth moving machine. Upon demanding the accounts, the appellant took him to the inside and closed the door from outside and thereafter the appellant ran towards him as to why he came with the deceased. He came back to his house, the appellant has followed him up to some distance. In the morning, he told last night story to Sarpanch Shiv , Ex-Sarpanch Shankarlal and the wife of the deceased. Then he along with both the Sarpanch went to the house of the appellant and found the dead body of Ramchandra inside the house. The Appellant and his wife were not found inside the house. His brother was lying near the fireplace with the number of injuries blood oozing from his body. He was cross-examined by the defence counsel but failed to extract anything from him in order to disbelieve his deposition or doubt about his conduct.

(10). Devi Singh (PW-4) has seen the appellant and Ramchandra sitting in front of the house of the appellant and the next day he came to know that the appellant has killed the Ramchandra. Nanibai (PW-4) has also deposed that his husband Ramchandra alongwith PW-1 went to the house of the appellant but did not come back in the night. On the next day, Ramgopal (PW-1) informed her that the appellant has killed her husband. The minor omissions in the statements are liable to be ignored in this case. Sidhnath (PW-5) has testified that the appellant used to drive the machine in his village belonging to the deceased and he saw the dead body of the deceased in the injured condition in the house of the appellant and signed the Ex.P/2 and P/3.

(11). The doctor (PW-6) who examined the dead body and found

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as well as 12 injuries on a different part of the body and opined that he died because of excessive bleeding and shock. All the injuries were caused by a hard and blunt object. (12). Shankarlal (PW-7) and Shiv Narayan (PW-8) has supported the version Ramgopal (PW-1) by stating that they went alongwith him to the house of the appellant and after 5 minutes the police came there and they all entered inside the house of the appellant and found the dead body of deceased. Their deposition remained unrebutted. There is no reason to disbelieve the statements of aforesaid witnesses that the deceased went to the house of the appellant and on the next day, a dead body was found lying in the inside of the house of the appellant. According to Ramgopal (PW-

1) he went there along with the deceased for settlement. (13). The material in respect of the professional relationship between the appellant and deceased are concerned, Ramgopal (PW-1), Nanibai (PW-4) and Sidhnath (PW-5) have confirmed that the appellant used to drive his machine in the village. Therefore, there appears to be a dispute in respect of settlement of an account for which the deceased went to the house of the appellant and on the next date his dead body was found. All the witnesses have categorically stated that when they entered into the house of the appellant neither the appellant nor his wife was inside the house and the dead body was lying near the fireplace which created suspicion on them and there is no explanation on the part of the appellant as to how a dead body deceased: Ramchandra of was found in his house. Even if we go by the theory of last seen together also, the Ramgopal (PW-1) and Devisingh (PW-3) have confirmed that on the night of the incident, the deceased was with him in his house. Therefore, by way of circumstantial evidence, the prosecution has successfully proved the culpability of the appellant beyond a reasonable doubt

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in the murder of deceased: Ramchandra. Since there is no evidence against the Premabai wife of the appellant, therefore, she has been rightly acquitted by the trial court. (11). At this juncture, we are of the considered opinion that judgment of the trial court has got to be sustained both factually and legally and accordingly, the impugned judgment of the trial Court is sustained. The Criminal Appeal fails and the same is dismissed.

Let the record of the trial court be sent back alongwith judgment.

                        ( VIVEK RUSIA )                      ( SHAILENDRA SHUKLA )
                            JUDGE                                   JUDGE
                        praveen/-




Digitally signed by PRAVEEN
NAYAK
Date: 2021.07.28 09:59:48
+05'30'