Baiju @ Vijay Singh vs State Of M.P.
2021 Latest Caselaw 6334 MP

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

HIGH COURT OF MADHYA PRADESH GWALIOR BENCH

DIVISION BENCH

G.S. AHLUWALIA & DEEPAK KUMAR AGARWAL J.J.

Cr.A. No. 477/2009

Baiju @ Vijay Singh

Vs.

State of M.P.

Shri S.S.Kushwah with Shri Arvind Dwivedi Counsel for the Appellant.

Shri R.K. Awasthi, Counsel for the State.

Date of Hearing                 : 22-9-2021
Date of Judgment                : 04-Oct-2021
Approved for Reporting          :

                              Judgment

                             04-Oct-2021

Per G.S. Ahluwalia J.

This Criminal Appeal under Section 374 of Cr.P.C. has been

filed against the judgment and sentence dated 31-3-2009 passed by

Additional Sessions Judge, Karera, Distt. Shivpuri in S.T.

No.226/2001 by which the appellant has been convicted under

Section 302 of I.P.C. and has been sentenced to undergo the Life

Imprisonment with fine of Rs.500/-, in default 2 months R.I.

2. Before adverting to the prosecution case, it would be

appropriate to mention here that the appellant has filed I.A. No.28936

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

of 2021 under Section 427 of Cr.P.C. for making the sentence

concurrent, as he has also been convicted in S.T. Nos.24/2004 and

18/2006.

3. It is not out of place to mention here that the appellant was

absconding and 7 other co-accused persons namely, Dataram,

Jagdish, Premi, Badam, Babulal, Ramkishan and Narayan Singh were

tried and by judgment dated 6-4-2004, they all have been acquitted.

4. The prosecution story in short is that on 18-4-2001, Hardas, the

brother of the deceased Badri lodged a report in Police Outpost

Amolpatha that he had gone to his fields. His brother Badri had also

come to the fields along with cattle. His Brother had killed father of

Narayan and appellant about 10-11 years back and he was tried and

was convicted. His brother Badri was on bail from High Court in a

Criminal Appeal filed by him. On this enmity, at about 1:00 P.M.,

Narayan and Ramkishan who were armed with guns, appellant was

armed with axe and Jagdish, Premi, Pappu, Babulal, Sobaran and

Dataram who were armed with lathi, came on the spot and

surrounded his brother Badri. They started abusing him. Appellant

gave an axe blow on the head of Badri as a result he fell down.

Another blow was given on the chest. The complainant could not

intervene in the matter as he was frightened. Thereafter, the co-

accused Ramkishan and Narayan fired in air. Kamlesh and Kapoori

had also come on the spot. On the basis of complaint, F.I.R., Ex. P.1-

C was registered. The Lash Panchnama was prepared. The dead body

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

of Badri was sent for post-mortem. Spot map was prepared. The

statements of the witnesses were recorded. After completing the

investigation, the police filed the charge sheet against Dataram,

Jagdish, Premi, Badam, Babulal, Ramkishan and Narayan Singh,

whereas the appellant and Sobaran were absconding. Thereafter, the

accused persons namely Dataram, Jagdish, Premi, Badam, Babulal,

Ramkishan and Narayan Singh were acquitted. The appellant was

arrested and a supplementary charge sheet for offence under Section

147, 148, 149, 302, 336, 294, 34 of I.P.C. was filed.

5. The Trial Court by order dated 25-6-2008 framed charge under

Sections 148, 302 of I.P.C.

6. The appellant abjured his guilt and pleaded not guilty.

7. The prosecution examined Kapoori (P.W.1), Hardas (P.W.2),

Kamlesh (P.W.3), Dr. D.S. Shrivastava (P.W.4), Ramswaroop (P.W.5),

M.P.S. Chandel (P.W. 6) and Bhagwan Singh (P.W.7).

8. The appellant did not examine any witness in his defence.

9. The Trial Court by the impugned judgment and sentence has

convicted and sentenced the appellant for the offence mentioned

above.

10. Challenging the judgment and sentence passed by the Court

below, it is submitted that the witnesses are not reliable. The

appellant is an innocent person. Admittedly, there was an enmity

between the parties, and therefore, the appellant has been falsely

implicated. The ocular evidence is contrary to the medical evidence.

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

He has also filed an application under Section 427 of Cr.P.C., for

making the sentences concurrent, as the appellant has also been

convicted in S.T. Nos.24/2004 and 18/2006.

11. Per contra, the Counsel for the State has supported the

findings recorded by the Trial Court.

12. Heard the learned Counsel for the parties.

13. Before adverting to the merits of the case, this Court thinks

apposite to find out as to whether the death of Badri was homicidal in

nature or not?

14. Dr. Dinesh Singh Shrivastava (P.W. 4) is the autopsy Surgeon

who has conducted post-mortem of the dead body of Badri. He found

the following injuries :

(i) An incised wound size 10 cms x 6 cms brain deep on right

parietal region, vertically placed. Underlying bone fractured in

two pieces, brain matter and meninges cut upto 5 cms depth.

Blood clots present around.

(ii) An incised wound size 8 cms x 5 cms x 5 cms on front of chest

on sternum horizontally mid part. Bone cut and both parts of

lungs cut of underlying wound. Heart seen in two part and

cavity is full of blood.

(iii) An incised wound size 4 cms x 2 cms x 2 cms on lt. Nipple

horizontally.

(iv) An incised wound of size 2 cm x 1cm x1cm on right nipple

horizontally.

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

All injuries seen on body are antemortem in nature

caused by sharp and cutting object.

15. Thus, it is held that the deceased Badri died a homicidal death.

16. The next question for consideration is as to whether the

appellant had caused axe injuries to the deceased Badri which

resulted in his death or not?

17. Kapoori (P.W.1) is the widow of Badri. She has stated that She

was going to her well and saw that the appellant was running away

from the scene of occurrence. Thereafter, She went nearer to her

husband and found that he was already dead and had three injuries. In

cross examination, She has stated that the old enmity was going on

between her husband and the appellant and the incident took place at

12-1:00 P.M. She denied that her husband was not assaulted by the

appellant and also denied that her husband had fallen down from the

platform.

18. Hardas (P.W. 2) is the eye witness and complainant. He is the

real brother of the deceased Badri. He has stated that this witness

was also in the field, and saw that the appellant came along with an

axe and assaulted the deceased on his head, and consequently he died

on the spot. Thereafter, this witness came to village and informed the

villagers. Then he lodged the F.I.R., Ex. P.1C. The spot map was also

prepared and plain and blood stained earth was seized.

19. In cross-examination, this witness has stated that he had seen

the incident from a distance of 60 fts. Till this witness was on the

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

well, no other witness had come on the spot. The report was lodged at

about 4-5:00 P.M. The report was lodged at Police Outpost and his

thumb impression was taken. He denied that his brother had died due

to fall on stones.

20. Kamlesh (P.W.3) is a hearsay witness, who was informed by

Hardas (P.W.2) that Badri has been killed by the appellant and

Babulal. In cross-examination, this witness has admitted that enmity

is going on between the family of the appellant and the deceased.

However, denied for want of knowledge as to whether Badri had

killed the father of the appellant or not?

21. Ramswaroop (P.W. 5) has also claimed that he had seen the

appellant assaulting the deceased by means of an axe. In cross-

examination, this witness has admitted that the deceased Badri is his

brother. He also admitted that he and the deceased Badri have been

convicted for murder of father of the appellant and his appeal has

also been dismissed by Supreme Court. He also admitted that old

enmity is going on between the family of the appellant and this

witness. It appears that in a trial against the co-accused persons, this

witness had turned hostile, therefore, he claimed that since, he was

threatened by the gang of Rambabu and Dayaram Gadaria, therefore,

he had not narrated the truth against the co-accused persons. He

further admitted that Rambabu and Dayaram are the near relatives of

the appellant. He denied that the appellant was cutting tree and as he

fell down from the tree, he sustained injuries.

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

22. M.P. Singh (P.W. 6) has stated that Hardas had lodged a report

in Police Outpost, Ex. P.1C. Thereafter, the said report was sent to

Police Station for registration. The spot map, Ex. P.3C was prepared.

Safina form was issued for preparation of Lash Panhnama and

accordingly, Lash Panchnama Ex. P.4C was prepared. The blood

stained and plain earth was seized vide seizure memo Ex. P.5C. The

cloths of the deceased were seized by seizure memo Ex. P.6C. The

statements of the witnesses were recorded. (It is not out of place to

mention that original documents were proved and exhibited in the

trial of co-accused persons and after comparing with the said

documents, the photo copies of the said documents were exhibited as

"C" documents.)

23. In cross-examination, this witness has denied that the F.I.R.

was written by him on his own and similarly, he also denied that the

statements of the witnesses were also written by him on his own. He

also denied that no seizure was made. He denied that the entire

proceedings were completed in the Outpost.

24. Bhagwan Singh (P.W.7) has proved the arrest of the appellant

on 16-7-2007 vide arrest memo Ex. P.7.

25. From the plain reading of the evidence of the witnesses, it is

clear that Kapoori (P.W.1) widow of the deceased Badri had seen the

appellant running away from the scene of occurrence, whereas

Hardas (P.W.2) and Ramswaroop (P.W.5) have claimed that they have

seen the incident. Kamlesh (P.W.3) has proved that he was informed

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

by Hardas (P.W.2) about the incident.

26. None of these witnesses were cross-examined in an effective

manner. Questions were asked in a most casual manner. Be that as it

may. The Counsel for the appellant could not point out any infirmity

in their evidence, which may make their evidence unreliable.

27. Since, the incident had taken place in the fields of Hardas and

Ramswaroop, therefore, their presence on the spot is natural.

28. It is submitted by the Counsel for the appellants that Hardas

(P.W. 2) has not stated that Ramswaroop (P.W. 5) was also present on

the spot, therefore, the presence of Ramswaroop (P.W.5) was

doubtful, however, nothing could be pointed to make the evidence of

Hardas (P.W. 2) and Kapoori (P.W.1) untrustworthy. Further, it is not

the case of Ramswaroop (P.W.5) that he and Hardas had gone

together. If both the witnesses have seen the incident from different

places, then it is also possible, that they may not have noticed each

other as their entire concentration must be on the assault which was

being made on the deceased.

29. Ramswaroop (P.W. 5) has specifically stated that multiple axe

blows were given by the appellant on the head and chest of the

deceased. The evidence of Ramswaroop (P.W. 5) is supported by the

medical evidence. It is true that Hardas (P.W.2) has stated that Badri

caused an injury on the head of the deceased and has not stated about

the remaining assaults, but this witness was examined after 7 years of

incident, and therefore, certain discrepancies are bound to happen.

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

Under these circumstances, this court is of the considered opinion,

that merely because Hardas (P.W. 2) has not stated about multiple

assaults by the appellant, it cannot be said that his evidence is

contrary to the Medical evidence.

30. It is next contended by the Counsel for the appellant that all the

witnesses are related witnesses, therefore, they are interested

witnesses.

31. The Supreme Court in the case of Bhagwan Jagannath

Markad Vs. State of Maharashtra reported in (2016) 10 SCC 537

has held as under :

19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability. On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.

20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape.

The Supreme Court in the case of State of U.P. Vs. Kishanpal

reported in (2008) 16 SCC 73 has held as under :

17. The plea of "interested witness", "related witness" have been succinctly explained by this Court in State of Rajasthan v. Kalki. The following conclusion in para 7 is relevant: (SCC p. 754) "7. As mentioned above the High Court has declined to rely on the evidence of PW 1 on two grounds: (1) she was a 'highly interested' witness because she 'is the wife of the deceased', and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid. For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the time of the occurrence, and the only person who saw the occurrence. True, it is, she is the wife of the deceased; but she cannot be called an 'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one and is the only possible eyewitness in the

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

circumstances of a case cannot be said to be 'interested'." From the above it is clear that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she has derived some benefit from the result of a litigation, in the decree in a civil case, or in seeing an accused person punished. A witness, who is a natural one and is the only possible eyewitness in the circumstances of a case cannot be said to be "interested".

The Supreme Court in the case of Sudhakar Vs. State

reported in (2013) 5 SCC 435 has held as under :

16. It would be appropriate to have a look at the legal position with regard to the evidence of related and interested witnesses. In Sarwan Singh v. State of Punjab, SCC para 10, this Court observed thus: (SCC p. 376, para

10) "10. ... The evidence of an interested witness does not suffer from any infirmity as such, but the courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration." It is settled law that there cannot be any hard-and-fast rule that the evidence of interested witnesses cannot be taken into consideration and they cannot be termed as witnesses. But, the only burden that would be cast upon the courts in those cases is that the courts have to be cautious while evaluating the evidence to exclude the possibility of false implication. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness.

17. Then, next comes the question "what is the difference between a related witness and an interested witness?". The plea of "interested witness", "related witness" has been succinctly explained by this Court that "related" is not equivalent to "interested". The witness may be called "interested" only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PWs 1 and 5 were not only related witnesses, but also "interested witnesses" as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal]. As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

facts and circumstances of this case to be cautious while analysing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution.

The Supreme Court in the case of Vijendra Singh Vs. State of

U.P. reported in (2017) 11 SCC 129 has held as under :

31. In this regard reference to a passage from Hari Obula Reddy v. State of A.P. would be fruitful. In the said case, a three-Judge Bench has ruled that: (SCC pp. 683-84, para

13)"[it cannot] be laid down as an invariable rule that interested evidence can never form the basis of conviction unless corroborated to a material extent in material particulars by independent evidence. All that is necessary is that the evidence of the interested witnesses should be subjected to careful scrutiny and accepted with caution. If on such scrutiny, the interested testimony is found to be intrinsically reliable or inherently probable, it may, by itself, be sufficient, in the circumstances of the particular case, to base a conviction thereon."

It is worthy to note that there is a distinction between a witness who is related and an interested witness. A relative is a natural witness. The Court in Kartik Malhar v. State of Bihar has opined that a close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other, convicted for some animus or for some other reason.

32. Mr Giri, learned Senior Counsel for the appellant has also impressed upon us to discard the testimony of PW 3, Tedha, on the ground that he is a chance witness. According to him, his presence at the spot is doubtful and his evidence is not beyond suspicion. Commenting on the argument of chance witness, a two-Judge Bench in Rana Partap v. State of Haryana was compelled to observe: (SCC p. 329, para 3) "3. ... We do not understand the expression "chance witnesses". Murders are not committed with previous notice to witnesses, soliciting their presence. If murder is committed in a dwelling house, the inmates of the house are natural witnesses. If murder is committed in a brothel, prostitutes and paramours are natural witnesses. If murder is committed on a street, only passers-by will be witnesses. Their evidence cannot be brushed aside or viewed with suspicion on the ground that they are mere "chance witnesses". The expression "chance witnesses" is borrowed

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

from countries where every man's home is considered his castle and every one must have an explanation for his presence elsewhere or in another man's castle. It is a most unsuitable expression in a country whose people are less formal and more casual. To discard the evidence of street hawkers and street vendors on the ground that they are "chance witnesses", even where murder is committed in a street, is to abandon good sense and take too shallow a view of the evidence."

32. Thus, it is clear that the evidence of a witness cannot be

discarded merely on the ground that he is "related witness". "Related

Witness" does not necessarily mean "interested witness". On the

contrary "related witness" is a natural witness, whereas "interested

witness" means that a witness who derives something from the

litigation.

33. The eye-witnesses have been cross-examined by the appellant

but nothing could be elicited from their evidence, which may indicate

that they are not telling the truth and are "interested witnesses".

34. It is next contended by the Counsel for the appellant, that

since, the deceased had killed the father of the appellant, therefore,

Kapoori (P.W.1), Hardas (P.W. 2) and Ramswaroop (P.W.5) had

reasons to falsely implicate the appellant.

35. Enmity is a double edged weapon. On one hand, if enmity

provides a basis for false implication, but at the same time, it

provides motive to commit the offence. The Supreme Court in the

case of Anil Rai Vs. State of Bihar reported in (2001) 7 SCC 318

has held as under :

18....The admitted position of law is that enmity is a double-

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

edged weapon which can be a motive for the crime as also the ground for false implication of the accused persons. In case of inimical witnesses, the courts are required to scrutinise their testimony with anxious care to find out whether their testimony inspires confidence to be acceptable notwithstanding the existence of enmity. Where enmity is proved to be the motive for the commission of the crime, the accused cannot urge that despite proof of the motive of the crime, the witnesses proved to be inimical should not be relied upon. Bitter animosity, held to be a double-edged weapon, may be instrumental for false involvement or for the witnesses inferring and strongly believing that the crime must have been committed by the accused. Such possibility has to be kept in mind while evaluating the prosecution witnesses regarding the involvement of the accused in the commission of the crime. Testimony of eyewitnesses, which is otherwise convincing and consistent, cannot be discarded simply on the ground that the deceased were related to the eyewitnesses or previously there were some disputes between the accused and the deceased or the witnesses. The existence of animosity between the accused and the witnesses may, in some cases, give rise to the possibility of the witnesses exaggerating the role of some of the accused or trying to rope in more persons as accused persons for the commission of the crime. Such a possibility is required to be ascertained on the facts of each case. However, the mere existence of enmity in this case, particularly when it is alleged as a motive for the commission of the crime, cannot be made a basis to discard or reject the testimony of the eyewitnesses, the deposition of whom is otherwise consistent and convincing.

36. In the present case, the deceased was alleged to have killed the

father of the appellant. Therefore, he was having motive to kill the

deceased. Thus, it is held that the prosecution has also proved the

motive on the part of the appellant.

37. No other argument is advanced by the Counsel for the

Appellant on merits.

38. Accordingly, the conviction of the appellant for offence under

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

Section 302 of I.P.C. is hereby upheld.

39. Since, the minimum sentence for offence under Section 302 of

IPC is life imprisonment, therefore, the sentence awarded by the Trial

Court does not call for any interference.

40. It is next contended by the Counsel for the appellant that it is

clear from the prosecution story, that the appellant is alleged to have

killed the deceased out of revenge as the deceased had killed the

father of the appellant. It is further submitted that the appellant has

also been convicted in S.T. 24/2004 by Judgment and Sentence dated

29.2.2008 for offence under Sections 364(A), IPC, read with Sec.

11/13, MPDVPK Act and was awarded Life Imprisonment with fine

of Rs.10000/- and in S.T. No.18/2006 by Judgment and sentence

dated 03.5.2008 for offence under Section 364(A), IPC, read with

Sec. 11/13, MPDVPK Act and was awarded Life Imprisonment. This

Court by order dated 6-8-2021 passed in Cr.A. No.437/2008 has

directed that the sentences in both the criminal cases shall run

concurrently. In the present case, the appellant has been convicted

subsequent to conviction in S.T. No. 24/2004 and 18/2006, therefore,

the Life Imprisonment awarded in the present case, may be directed

to run concurrently, and for the said purposes, I.A. No.28936 of 2021

has been filed under Section 427 of Cr.P.C.

41. Considered the submissions made by the Counsel for the

appellant.

42. By order dated 6-8-2021 passed in Cr.A. No.437/2008, this

Baiju @ Vijay Singh Vs. State of M.P. (Cr.A. No.477/2009)

Court has directed that the sentences awarded to the appellant in S.T.

Nos.24/2004 and 18/2006 shall run concurrently. Accordingly,

applying the same analogy, it is directed that the life imprisonment

awarded in the present case, shall run concurrently with sentence

awarded in S.T. Nos. 24/2004 and 18/2006.

43. With aforesaid modifications, the judgment and sentence dated

31-3-2009 passed by Additional Sessions Judge, Karera, Distt.

Shivpuri in S.T. No. 226/2001 is hereby affirmed.

44. The appellant is in jail. He shall undergo the remaining jail

sentence as directed above.

45. A copy of this judgment be provided to the appellant free of

cost.

46. The Registry is directed to immediately send a copy of this

judgment along with record to the Trial Court for necessary

information and compliance.

47. The appeal is Disposed of accordingly.

(G.S. Ahluwalia)                                            (Deepak Kumar Agarwal)
          Judge                                                             Judge

                              ARUN KUMAR MISHRA
                              2021.10.04 17:32:45 +05'30'