Sanjeev Kushwaha vs The State Of Madhya Pradesh
2021 Latest Caselaw 7087 MP

            HIGH COURT OF MADHYA PRADESH
              PRINCIPAL SEAT AT JABALPUR

               Criminal Appeal No.2567/2010


Sanjeev Kushwaha...........................................Appellant
                                Vs.

State of Madhya Pradesh................................Respondent

                           ****
                         Present
                JUSTICE ATUL SREEDHARAN
                JUSTICE SUNITA YADAV
                          *****

For the appellant     : Mr.Vijay Kumar Lakhera, Ld.
                       Advocates
For the Respondent:Mr.Manhar Dixit, Ld. Panel Lawyer



                           JUDGMENT

(8.11.2021)

Per: Atul Sreedharan J.

The appellant herein is aggrieved by the order dated

24.11.2010 passed by the learned Third Additional Sessions Judge,

Satna, in Sessions Trial No.122/2008 whereby the appellant was

convicted for an offences under section 302 IPC and sentenced to

suffer rigorous imprisonment for life and fine of Rs.250/- and in

default thereof to suffer additional rigorous imprisonment for three

months.

2. The case of the prosecution is that on 24.4.2008, Shivprasad

Kushwaha (D.W.1), who was the father of the deceased and the

appellant herein, had informed the police that the appellant, who is

allegedly of unsound mind, had assaulted him and other members

of the family. In response to the said complaint, a posse of

policemen came to the village by when the appellant had already

climbed to the roof of his house and was resisting arrest. Upon

this, the police personnel are stated to have requested the deceased

Hazarilal, who is the real brother of the appellant herein, to

apprehend the appellant and bring him down. Thereafter, the

deceased went up to apprehend the appellant and it is alleged that

the appellant stabbed the deceased resulting in his death almost

instantaneously. The FIR in this case has been registered on the

same date as the offence i.e 24.4.2008 under section 302 IPC by

Ram Naresh Pal (P.W.2) and the same is Ex.P3. The appellant

herein is sole named accused and the details given in the FIR are

similar to what has been narrated herein above. Ex.P1 is the post-

mortem report. It records in all 14 injuries on the body of the

deceased out of which 13 are incised wounds and the 14 th one is a

bruise. An elaborate reference to the location and the nature of the

injuries are not called for suffice it to say that they were all on vital

parts of the body. The cause of death given by the doctor is hypovolemic shock due to internal blood loss. The appellant was

arrested on the next date of the incident, which is 25.4.2008.

3. P.W.2 is supposed to be the star witness in this case, who is

Ram Naresh Pal. He is the brother of both of the deceased and the

appellant herein. In his examination-in chief he says that he was

present and gives a graphic description of how the deceased went

up to apprehend the appellant and was attacked by the appellant

resulting in the death of the deceased. In paragraph 4 of the cross-

examination he says that it is incorrect to suggest that the

appellant was of unsound mind. He further says that the police

never recorded any statement of his. He also says that it is correct

to suggest that he never went to register the FIR. Upon being

confronted with the FIR he says that he only puts his thumb

impression and that he does not sign. He further says that it is

correct to suggest that if his name is there as having signed the

FIR, it must have been signed by someone else. Thereafter he says

that it is correct that on the date of the incident he was never there

at the scene of occurrence as he had gone out for work. He says

that he came to know of the incident as he was informed by

"people". He further says that the police did not carry out any

enquiry in his presence. In paragraph 5 of his cross-examination

he says that in the portion marked "A to A" of Ex.P/3 (FIR), it is

not his signature. He further states that the portion marked "A to A", of the marg intimation (Ex P/2), it is not his signature and says

that these signatures are not made by him but by someone else.

This witness has been re-examined by the prosecution where he

does a volte face and says that the signatures on Ex.P/2 and

Ex.P/3, are his. He further says that he had informed the police

that the appellant had stabbed the deceased on the roof.

4. Learned counsel for the appellant has argued that the

appellant was a man of unsound mind. In this regard, he has

referred to the statements of D.W.1 and D.W.2. D.W.1 is the father

of the appellant and also that of the deceased. He says that the

appellant has been under the treatment of a Psychiatrist named

Dr.Sangeeta Jain. He has further stated that the appellant was of

unstable mental condition and that on the date of the incident

deceased Hazarilal fell from the roof while grappling with the

appellant and landed on farming tools and equipments where were

pointed and sharp as a result of which he suffered injuries and he

died. In cross-examination by the prosecution, this witness says

that the Police Force was present at the scene of occurrence and

that they had apprehended the appellant immediately from the

scene of occurrence itself.

5. P.W.2 is a neighbour who is stated to be an eye witness to the

incident and has stated likewise that the appellant was of unstable

mind and on the date of the incident deceased Hazarilal fell from the roof while grappling with the appellant and landed on the sharp

and protruding farm implements and suffered injuries which

resulted in his death.

6. A different version with regard to the incident has been given

by the defence witness. Precious little has been brought out by way

of cross-examination to show that they are lying. However, as

regards the question of insanity, the document that has been

produced by the defence, which is a prescription of Dr.Sangeeta

Jain, treating the appellant, which is Ex.D/1, reveals that the

appellant was habituated to "cannabis abuse" and that he was

uncooperative. This aspect has been stressed upon by the learned

counsel for the State, who says that the defence of insanity was not

available to the appellant herein as the defence document itself

shows that the appellant was a drug addict and self induced

intoxication is never a defence. Learned counsel for the State

further submits that the inability of the defence to prove insanity

of the appellant establishes the fact that the appellant was in a

sane mental condition and that the said exception (S.84 IPC) would

not be applicable in his case and that his conviction under section

302 IPC was just and proper.

7. Learned counsel for the appellant on the other hand has

submitted that the trial court has proceeded and convicted the

appellant only on the premises that the defence has been unable to prove the insanity of the appellant. However, he says, that the

Trial Court erred gravely because the trial court failed to first of all

assess whether the prosecution had discharged its duties and

proved the case against the appellant beyond reasonable doubt. It

is only thereafter, according to the learned counsel for the

appellant, that the accused would be called upon to establish his

defence of insanity.

8. Heard the learned counsel for the parties and perused the

record of the learned Trial Court.

9. The manner in which this case has being conducted before

the Trial court leaves much to be desired. The prosecution has

grossly erred in not making those policemen who were present at

the scene of occurrence as witnesses in this case. The policemen

who had arrived at the scene of occurrence at the behest of D.W.1

to ensure that the family is safe from assaults by the appellant

herein were not even made witnesses in this case. In this case the

police personnel who had arrived at the scene of occurrence were

natural witnesses and not witnesses in the course of investigation.

Here they themselves have perceived the offence being committed

by the appellant on the deceased. The presence at the scene of

crime was natural as it was their duty to respond to a distress by

any citizen asking for their protection and when these policemen

had reached there in discharge of their duties after which the offence had taken place, their testimonies were vital to establish

the case against the appellant. Their presence at the scene of

occurrence is not disputed even by the defence witness. It is

accepted by the father of the appellant, who was examined as

D.W.1, that the police posse was present at the scene of occurrence

before the incident took place. Under the circumstances, the only

witness who could have been an eyewitness to this case was P.W.2.

10. PW-2 has supported the case of the prosecution in

Examination-in-Chief, he says that he is a witness to the

deceased being murdered by the appellant herein. PW-2 is

also the brother of deceased. However, in cross-examination,

this witness categorically states that he never signed the FIR

and that he is only able to put his thumb impression and

most importantly, he says that at the time of the incident, he

was not there at the scene of occurrence as he had gone for

work. He further states that he came to know of the incident

as "people informed him". He further states that Ex.P/3and

P/2 which are the FIR and the Merg intimation was not

signed by him. However, in re-examination by the

prosecution, this witness says just the opposite that the FIR

and the Merg intimation have been signed by him. The

prevarication and flip-flop by this witness makes him unreliable and unsafe to base a conviction only on the basis

of his testimony.

11. The FSL report in this case which is Ex.P/19 does not

give any details with regard to the blood stains on the knife

seized from the appellant or any blood stains which were

present on the clothes of the deceased or the appellant. It

only goes to show that the clothes which were worn by the

deceased, bore signs of cutting which was visible and which

could have been caused by a sharp-edged object.

12. In this case, as stated herein-above earlier, much is left

to be desired by the conduct of the prosecution as vital

witnesses who could have proved the case beyond reasonable

doubt against the appellant herein, have not even been

examined as witnesses. The testimony of PW-2 as held by us

earlier herein-above is extremely frail and unsafe to rely upon

to base a conviction.

13. Under the circumstances, this appeal is allowed and the

conviction recorded against the appellant herein under

section 302 IPC is set-aside and he is acquitted. He shall be

released forthwith if not required in any other case.

                    (Atul Sreedharan)                                (Sunita Yadav)
                         Judge                                           Judge
       ss/ps/ravi

Digitally signed by RAVIKANT
KEWAT
Date: 2021.11.09 14:51:17 +05'30'
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