Nana @ Ameet @ Shailendra @ Avinash vs State Of M.P.
2021 Latest Caselaw 7746 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 Satyendra Kumar Singh , JJ.

                      Criminal Appeal No.1439/2009
        Nana @ Ameet @ Shailendra @
        Avinash S/o Karan Singh, aged about 23 Appellant (s)
        years, occupation- Labourer, R/o Near
        Shankar Tempal Musalkhedi, Indore,
        M.P. at Present Kumharwadi Shajapur,
        District Shajapur, M.P.
                                   Versus
        State of Madhya Pradesh through Police
        Station- Sarangpur, District Shajapur, Respondent (s)
        M.P.
 Shri Yogesh Gupta, learned counsel for the appellant.

      Shri Amit Singh Sisodia, learned Government Advocate for the
respondent/State.
                   JUDGMENT

(Heard and reserved on 18.11. 2021) (Delivered on 24.11.2021) PER VIVEK RUSIA, J: -

This appeal filed under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") arises against the judgment of conviction dated 16.09.2009, passed by Special Judge, Scheduled Caste and Scheduled Tribe (Prevention of Atrocities) Act, 1989 (hereinafter referred as 'Act, 1989') in Special Case No. 98/2007 , by which the appellant has been convicted for offence under Sections 302/34, 307/34 (two counts) of Indian Penal Code (for short "IPC") and Section 25 (1-b) (b) of Arms Act and sentenced to undergo life imprisonment, 10 years R.I. and 1 year R.I. with fine of Rs. 500/- in two counts and Rs. 250/- with default stipulation.

(2) The case of the prosecution, in brief, is as follows: -

(i) On 20.06.2007, at about 22:15 the complainant-Laad Singh (PW-1) aged about 22 years was sitting in front of the rented house of Durga Prasad Mali alongwith his brother Dinesh (the deceased) and

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cousin Bhagwan Singh. At that time Sunil son of Durga Prasad while climbing the stair hit Laad Singh by his foot, therefore a dispute has arisen between them. Dinesh and Bhagwan Singh intervened and settled the dispute and Sunil went from the spot. After 5-10 minutes, Sunil returned with the appellant-Nana @ Amit @ Shailendra @ Avinash with knives in their hands and started assaulting complainant Laad Singh. Dinesh and Bhagwan Singh came to rescue him, then they have inflicted injuries on all. All three sustained stabbed injuries on vital parts of the body. They were taken to the community health Center, Sarangpur from where the information was sent to the Police Station. Dehati Nalish was registered on 20.07.2007 by Assistant Sub Inspector Dadu Singh under Section 307/34 and 3 (1) (x) of Act, 1989, which was sent to the Police Station Sarngpur by head constable Lakhan Singh, where it was registered at crime No.362/2007 and same was taken up for investigation. In the hospital Dinesh succumbed to the injuries accordingly, section 302 /34 of I.P.C. was also added. At the time of the incident, Sunil was a Juvenile, therefore, he was produced before the Juvenile Court. This present appellant was arrested on 21.06.2007 vide Ex.P/2. His memorandum under Section 27 of the Indian Evidence Act was recorded vide Ex. P/3 in which he disclosed about the place of the knife in drainage infront of house of Sunil, accordingly knife was seized vide seizure memo Ex. P/4. Naksha Panchanama and spot map were prepared by the Investigation Officer. The injured were sent to the hospital for examination. Bloodstain clothes of the deceased and knife were sent to the FSL vide draft memo dated 30.08.2007. FSL sent report 25.02.2008 with the finding that human blood is there on clothes but no bloodstains were found on the knife, even no blood was found in the knife (katar) seized from the possession of Sunil (Juvenile).

(ii) The dead body was sent for postmortem, which was conducted by Dr. A.R. Hawadiya (PW-4), who opined that the cause of death of Dinesh is hemorrhagic shock due to the cumulative effect of all the injuries over the abdomen. The Police recovered the caste certificate of

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Bhagawan Singh, Dinesh and Laad Singh. After completing the investigation, police filed the charge sheet before the Special Judge. The charges under Section 302/34, 307 (two counts) of I.P.C. and Section 25 (1-b) (b) of Arms Act were framed against the appellant, which he denied and pleaded for trial.

(3). The prosecution has examined as many as 9 witnesses as PW-1 to PW-9 and exhibited 27 documents as Ex.P/1 to Ex. P/27. In defence, the appellant examined Dr. M.K. Rajdev as D.W.-1 .

(4) After evaluating the evidence, came on record, the learned Special Judge has convicted and sentenced the appellant as stated above. Hence, this appeal before this Court. Hence, this appeal before this Court.

(5) Shri Yogesh Gupta, learned counsel for the appellant submits that the doctor who conducted the autopsy did not give an opinion that the death of Dinesh is homicidal in nature. Another accused was a juvenile at the time of the incident, therefore, it is unbelievable that the appellant aged about 20 years has caused the stabbed injuries to three persons simultaneously. The recovery of the knife has not been proved by the prosecution. Even the knife which was recovered, no bloodstains were found. Dr. M.K. Rajdev (DW-1) stated that the Naib Tehsildar, Sarangpur recorded the dying declaration of Laad Singh on 20.06.2007 in which he has not disclosed that this appellant caused the injury to Dinesh by means of a knife, hence, the appellant has wrongly been convicted in this Case. By way of alternate submission, learned counsel for the appellant submits that if this Court concludes that the Dinesh died because of injuries caused by this appellant by means of a knife, then the applicability of section 304 (Part II) of I.P.C. be also be considered because the dispute arose all of sudden on the petty issue. It was not pre-planned murder. The appellant is not a habitual offender, the dispute arose due to sudden provocation by the injured persons. Hence, the offence will not travel more than 304 (Part II) of I.P.C. for which the maximum sentence is 10 years, which the appellant has

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already undergone. In support of his contention, he has placed reliance on the judgments passed in the case of Atul Thakur Vs. State of Himachal Pradesh etc. 2018 AIR (SC) 570, Chand Khan Vs. State of M.P. 2006(3) MPLJ 549 and Sonu Jain Vs. State of M.P. (Criminal Appeal No. 474/2016 dated 06.04.2021) in which similar facts and circumstances, the Apex Court as well as this High Court converted the conviction from 302 of I.P.C. to 304 (Part II) of I.P.C.

(6) Learned Government Advocate submits that the prosecution has established the case beyond a reasonable doubt. The Laad Singh and Bhagwan Singh have injured witnesses who have fully supported the case of the prosecution. Initially, the dispute was with Sunil on the petty issue with Laad Singh but later on, he called this present appellant and assaulted the deceased by means of a knife, hence, it was not a sudden provocation or without any pre-planned as argued by the counsel for the appellant. Hence, the appellant has rightly been convicted under Section 302 of I.P.C. Even if the doctor did not give an opinion that the death was homicidal but on the basis of the autopsy report and statement of the doctor there is no reason to believe that it was not homicidal death. Hence, the appeal has no substance and conviction 302 of I.P.C. and 307/34 of I.P.C. is liable to be confirmed.

(7) We have heard learned counsel for the parties and perused the record of the trial court.

(8) The prosecution has examined Laad Singh (PW-1), who is the elder brother of deceased Dinesh as well as injured eye witness . According to him near about 09:00 pm, he along with Dinesh and Bhagwan Singh were sitting outside the house of Shiv Prasad. The Sunil came there and while climbing the stair, he pushed the deceased Dinesh, when he objected, Sunil left the place with threatening to see the dire consequences. After some time, he came with the present appellant with Kinfe in their hand. Sunil inflicted the injury on his lower abdomen. Then Dinesh and Bhagwan came there and sustained injuries on their stomach. Dinesh sustained three stabbed wounds and

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at that time police came there and took them to the hospital. Dehati Nalish was also recorded in the hospital vide Ex. P/1. The Dinesh died in the Sarangpur Hospital and they were referred to Shahapur Hospital from where they were referred to Indore Hospital.

(9) The Prosecution has also examined Bhagwan Singh (PW-7), who has fully supported the case of the prosecution. P.W.-1 and P.W.-7 both were cross-examined by the defence counsel at length, except for minor omissions and contradictions, they are fully supporting the story of the prosecution. They have denied the suggestions that all of them were heavily drunk and sustained the injury by falling on a knife. They are reliable witnesses and the trial court did not commit any error while relying on their testimony.

(10) Apart from the aforesaid two witnesses, the prosecution has examined Jairam (PW-2) seizure and arrest witness. According to him vide Ex. P/2 this appellant was arrested and on his disclosure location, a knife was recovered vide Ex. P/4. The seized knife was called from Najarat and shown to the PW-2, he has identified article ' B' seized by the police. Another witness Veeram Singh has examined as PW-3, who is the brother of deceased Dinesh and according to him he saw two stabbed wounds one on the stomach and one is on his hand. He has admitted his signature on the arrest memo of Nana, disclosure memorandum Ex. P/3 and seizure memo Ex. P/4. He has identified the accused in the Court. He has denied all the suggestions given by the defence counsel.

(11) Prosecution has examined Ashok Yadav (PW-5), who recorded the FIR Ex. P/12. The investigation was carried by one B.S. Thakur (PW-8) and according to him he received the diary of crime No.362/2007 from police Station Sarangpur. He issued summons un- der Section 174 of Cr.P.C. and called the witnesses and prepared Lash Panchnama of Dinesh Ex. P/7. Thereafter arrested this appellant vide arrest memo vide Ex. P/2. After the arrest of this appellant, on the ba- sis of his memorandum under Section 27 of the Indian Evidence Act, a

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knife was recovered. The Investigation Officer has also recovered Katar from the possession of Sunil and recorded the statement and af- ter completion charge-sheet was filed. In cross-examination, he has de- scribed the procedure of investigation conducted by him in which we do not find any irregularity. According to him, he went to the spot which is a residential area of 100 and 150 persons. He did enquire about the incident but no one gave information in respect of the inci- dent, hence, he did not record their statement. He did not see the de- ceased and injured on the spot, however, he has admitted that in Ex. P/2, he has mentioned the position where Dinesh was lying in injured condition but he has explained that the place where Dinesh was lying injured is column No.1 which is 8 x 8 size room. He has not mentioned the place of Laad Singh where he was lying in injured condition. He did not seize any blood from the spot. He did not seize the bloodstain cloth of Bhagwan Singh and Laad Singh. The rest of the suggestions, he has specifically denied in respect of irregularity in the investigation. These lapses in the investigation do not make doubtful and the appel- lant is not entitled to acquittal. In the case of Ganga Singh v. State of M.P., (2013) 7 SCC 278 the Supreme Court of India has held as under:-

"17. We are also unable to accept the submission of Mr Mehrotra that the investigation by the police is shoddy and hasty and there are defects in the investigation and therefore benefit of doubt should be given to the appellant and he should be acquitted of the charge of rape. The settled position of law is that the prosecution is required to establish the guilt of the accused beyond reasonable doubt by adducing evidence. Hence, if the prosecution in a given case adduces evidence to establish the guilt of the accused beyond reasonable doubt, the court cannot acquit the accused on the ground that there are some defects in the investigation, but if the defects in the investigation are such as to cast a reasonable doubt in the prosecution case, then of course the accused is entitled to acquittal because of such doubt. In the present case, as we have seen, the evidence of PW 5 as corroborated by the evidence of PW 2 and the FIR establish beyond reasonable doubt that the appellant has committed rape on PW 5 and thus the appellant is not entitled to acquittal."

(12) So far as the nature of the death of Dinesh and Injuries sustained to Laad Singh and Bhagwan Singh is concerned, the prosecution has successfully established by examining Dr. A.R. Hawadiya (PW-4). He

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found one stabbed wound size 2.5 x 1 cm on Laad Singh and advised for X-Ray and answered the query report in positive. Thereafter, he examined Bhagwan Singh and found two stabbed injuries size 2.5 x 1 cm and 1.5 x 1 cm in the abdomen region and both were caused by a sharp object. However, he admitted that both injured were in drunken condition. According to him, 21.06.2007, the dead body of Dinesh was brought by Ratan Lal Constable for examination. He found three stabbed wounds out of which two were on the chest and stomach and one was on the left hand near the elbow. In the internal examination, he found the spleen broken into three-piece and two litres of blood inside the stomach. He gave the opinion that all the injuries are antemortem injuries. All the three injuries were caused by a knife but the Tilli was found broken from a hard and blunt object.

(13) It is not mandatory for the doctor conducting autopsy to give a specific opinion in the postmortem report that the death was homicidal but on the basis of injuries reported in the autopsy report, the Court can examine and find that the death is homicidal or not. There is no suggestions or specific opinion by the Doctor that Dinesh died due to the natural death or no injuries were there or the treatment was negligent. Therefore, we have no reason to discard the statement of the doctor who is an expert in his field to reject the autopsy report. The death of Dinesh is homicidal, Laad Singh and Bhagwan Singh have also sustained grievous injuries by means of knife and the injuries of PW-1 and PW-7 has been established by means of a knife, therefore, there is no reason to discard their testimony. Merely because the independent witnesses have not been examined by the police, the statement of PW-1 and PW-7 cannot be discarded, who are not only the eyewitnesses as well as injured and complainants in this case. Hence, the prosecution has successfully proved the charges beyond reasonable doubt against the appellant.

(14) Now the issue is whether the death of Dinesh was murder or culpable homicidal not amounting to murder. Learned counsel has

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argued that to examine the offence come under 304 (Part II), the number of injuries are not liable to be considered. There are only two ingredients that are liable to be examined, as to whether, the incident had happened on account of a sudden fight in a heat of passion and there was no premeditation, which is missing in this case. As per the evidence of PW-1 and PW-7, the co-accused Sunil (Juvenile) was climbing the stair and pushing the Laad Singh, when he objected then he went and came after 5-10 minutes with appellant armed with a knife and immediately they started assaulting by means of a knife. There was an altercation and dispute between Laad Singh and Sunil not with this appellant. Later on, Sunil came with the appellant armed with a knife. They came with a knife in a pre-planned manner and without any altercation started assaulting all the three-person by means of a knife. So far present appellant is concerned, there was no dispute hence, the offence is said to have been committed in heat of passion does not arise. They came on the spot with a knife by way of the plan. Since they had the intention to kill, therefore, repeated blows were made on the vital part of three accused out of which Dinesh died, therefore, he has rightly been convicted under Section 302/34 and 307/34 (two counts) of I.P.C.

(15) In view of the above, discussion, we hereby confirm the judgment dated 16.09.2009 passed in special case No.98/2007 whereby the appellant has been convicted for the offence punishable under Section 302/34, 307/34 (two counts) of I.P.C. and Section 25 (1-

b) (b) for murdering Dinesh and sustained the fatal injuries to Bhagwan Singh and Laad Singh.

(18). The Criminal Appeal filed by the appellant is hereby dismissed.

The registry is directed to send back the Trial Court record forthwith along with the copy of this judgment.

            ( VIVEK RUSIA )                    (SATYENDRA KUMAR SINGH )
                      JUDGE                                JUDGE
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Date: 2021.11.24 18:54:43 +05'30'