Madhya Pradesh High Court
Jagan vs The State Of Madhya Pradesh on 4 October, 2021
Author: Atul Sreedharan
1
Cr.A.No.881/2010
HIGH COURT OF MADHYA PRADESH AT JABALPUR
CRIMINAL APPEAL NO.881/2010
Jagan......................................... ................ Appellant
Versus
The State of Madhya Pradesh............................ Respondent
For the appellant : Mr.Karan Singh Thakur, Advocate
For the respondent/State : Mr.Manhar Dixit, Panel Lawyer
******
Present:
HON'BLE MR. JUSTICE ATUL SREEDHARAN
HON'BLE MRS. JUSTICE SUNITA YADAV
******
JUDGMENT
(04.10.2021)
Per : Atul Sreedharan, J.
The appellant is undergoing the sentence and he is aggrieved
by the order dated 31.03.2010 passed by the learned Sessions
Judge, Betul in Sessions Trial No.252/2009 by which the
appellant was found guilty on two counts of murder and sentenced
to suffer life imprisonment on each count and a fine of Rs.500/-
on each count and an additional simple imprisonment of six
months in default thereof.
2. The incident is of 22.06.2009. The complainant Shiv
Prasad owns a house in the village Bharat Bharti. One of the
deceased Jangu is the father of the complainant and the
appellant herein Jagan is the real brother of the deceased Jangu.
The other deceased is Shiv Pal, who is the son of deceased
No.1 Jangu and the brother of the complainant Shiv Prasad and
nephew of the appellant. On 22.06.2009 at about 10:30 pm the
complainant Shiv Prasad is stated to have heard some
disturbance coming from the house of the deceased, so he went
there and saw that the appellant-Jagan was assaulting his father
Jangu and when Shiv Pal tried to intercede, the deceased
assaulted him also. The deceased was armed with an axe. In all
there are three eye witnesses, Shiv Prasad (PW-1), Ram Rati
(PW-2) and Shiv Kali (PW-6). The other relevant witnesses on
behalf of the prosecution in this case are the Kotwar of the
village (PW-4) and Om Prasad (PW-7).
3. In his examination-in-chief, the witness Shiv Prasad (PW-
1) says that the time was around 9:30 pm in the night and he
heard sounds of assault and so he woke-up and went to the
scene of occurrence where he saw the appellant assaulting his
father the deceased Jangu with an axe. Thereafter, he corrects
himself and states that the deceased Jangu was not assaulted in
his presence and rather he saw his brother Shivpal being
assaulted by the appellant herein and his father was lying on
the ground with injuries on his neck, caused by the axe. He
further states that his sister-in-law Shiv Kali (PW-6), who is the
wife of the deceased Shivpal came to the scene of occurrence in
order to intercede. PW-1 also says that his wife Ramrati (PW-2)
had seen this incident. He further says that the appellant ran
away from the scene of crime. This witness further says that he
went running to the house of Surju to inform him about the
incident and brought him along to the scene of occurrence by
which time the appellant had already ran away from there. He
further states that the deceased Jangu used to indulge in black
magic and it is because of that the appellant had killed him and
also that the deceased Shivpal used to stay with Jangu and that
is the reason why the appellant attacked Shivpal also.
4. This witness has been declared hostile by the prosecution
as he has deviated from his statement under Section 161 of
Cr.P.C., as he has not stated in his Court testimony that he has
also witnessed the appellant hacking his father Jangu with an
axe. In his cross-examination, learned counsel for the appellant
has tried to show that there was no light at the scene of
occurrence and it was not possible for PW-1 to have seen the
incident. Specifically, he has drawn our attention to paragraph-
10 of his cross-examination, where this witness says that he
came to the scene of occurrence and lit a fire to light up the
place. However, in paragraph-8, this witness says that there was
no light at the scene of occurrence, but says that there was a
light at the house. In this regard, it would be necessary to refer
to the site map (Ex.P-3) drawn by the Police, where the scene
of crime is said to have taken place which is at a short distance
from the house where the light was burning. The other variation
and aberrations in this cross-examination are extremely minor
and peripheral and do not go to disturb the prosecution's case.
5. PW-2 is Ram Rati, who is the wife of PW-1, she says
when we have heard the sound around 9 to 9:30 pm, she, PW-1
and her children went to the scene of occurrence. She further
says that when they reached the scene of occurrence, Shiv Kali
(PW-6) was not present there and that she came later.
Thereafter, she supports the prosecution's case by stating that
the appellant herein had already axed her father-in-law Jangu
and was assaulting her brother-in-law Shivpal, when she
reached there.
6. Learned counsel for the appellant has further tried to
show that the appellant may have falsely been implicated as
PW-2 herself states very clearly that there was no enmity
between the appellant and the deceased Shivpal as stated by her
in paragraph-4 of her testimony. An attempt was made by the
defence to bring out variations of the subsequent events stated
by the witnesses especially with regard to giving information to
Sarju. This witness however says that Sarju was called by her
husband (PW-1) and not by her. The omissions again are very
minor in nature and do not go to the root of the prosecution's
case.
7. PW-3 is Sarju, who is the cousin brother of PW-1. He
says in his examination-in-chief that Shiv Prasad came to
his house between 9 to 10 p.m. on the date of incident and
informed him that the appellant had axed Jangu and Shivpal
and that he went to the scene of occurrence with Shiv
Prasad at which time, he did not see the nature of injuries
on the deceased and says that later during the day time, he
saw the injuries on the person of the deceased.
8. Learned counsel for the appellant has attacked the
statement of PW-3 [Sarju] on two counts, firstly, he says
that PW-3 [Sarju's] knowledge with regard to the murder
being committed by the appellant, is inadmissible because,
he is a hearsay witness on that count, as the information
had been given to him by PW-1 and he is not an eye-witness
and secondly, in the last two lines of his statement in cross-
examination, where this witness says that it is correct to
suggest that he came to know in the morning that the
deceased Jagnu was assaulted by some one and that is why
he went there in the morning. As regards the first
contention putforth by the learned counsel for the appellant,
the statement of Sarju with regard to him being in
knowledge of the fact that it was the appellant who
committed the murder of the deceased, is admissible under
the rule of res gestae. The eye-witness PW-1 informed PW-
3 almost immediately after the incident and therefore, the
occasion for any embellishments or distortions to creep into
the statement of PW-3, is extremely improbable and
therefore, his information with regard to the incident
though hearsay, would be admissible under the rule of res
gestae. As regards the last two lines where this witness has
stated that he came to know in the morning that some one
has killed Jagnu and so he went there. The same will have
to be read with the testimony in examination-in-chief in
paragraph 2. There the witness says that he had gone twice
to the scene of occurrence i.e. once along with Shiv Prasad
in the night itself where he had seen Jagnu and Shivpal
lying dead, but he could not see the injuries on their bodies,
which he saw the next morning. Thus, it is clear from his
statement in chief, that this witness had gone to the scene
of occurrence once immediately in the night after the
incident occurred and second time, the next day morning.
Therefore, if the last two lines of his statement in para 3 of
this witness are seen, it becomes apparent that the witness,
who is a villager, has given this statement as per his
understanding to the question that was put to him by the
defence counsel. The relevance of his statement would
have been immense had this witness not stated so in his in-
chief that he had gone to the scene of occurrence in the
morning also, besides having gone there the previous night,
immediately after the incident. Therefore, the last two
lines of this witness's statement in his cross-examination
refer to his second visit to the scene of crime in the
morning of 23.06.2003.
9. PW-6 is Shivkali. She is the wife of the deceased
Shivpal. She was also living with the deceased in the same
house along with her father-in-law Jangu. She says that
when she came out to witness the incident, PW-1 (Shiv
Prasad) and PW-2 (Ramrati) were already there at the scene
of occurrence. This corroborates the sequence of this
witness coming to the scene of crime, as stated by PW-2
(Ramrati), who has stated in her testimony that when she
reached the scene of occurrence, Shivkali (PW-6) was not
there and she came immediately thereafter. The same
sequence has been reiterated by PW-6 (Shivkali). She also
states that when she reached the scene of occurrence, the
appellant had already axed her father-in-law and that her
husband (Shivpal) was lying on the ground and the
appellant was causing injuries to her husband (Shivpal) by
means of an axe. The discrepancies in her statement which
has been brought out in paragraph 5 or her cross-
examination are not of such a nature that could go to the
core of the prosecution's case.
10. PW-4 is Motoo alias Bhimrao, who is the Kotwar of
village Urdhan, P.S. Betul. He is an important witness. He
says that on the date of the incident, the appellant
approached him with an axe in his hand and informed him
that he had murdered his brother and nephew. Thereafter,
the witness says that he enquired from the appellant as to
what he wanted to do now to which, the appellant is stated
to have told this witness that he wanted to surrender
himself before the Police. Upon this, PW-4 (Bhimrao)
called Om Prakash (PW-7) and together, they took the
appellant on a motorcycle to the Police Out-Post at Padar
under Police Station, Betul. He further states that he does
not know the motive for the murder. He further says that
the Police has seized the axe from the appellant in his
presence and he has signed the seizure memo, which is
Ex.P/9. No contradiction has been brought out by the
defence in the statement of this witness (PW-4). The
importance of this witness is on two counts. First of all he
is a witness to the extra-judicial confession, which
normally in isolation may not have gone to prove the
prosecution's case, but in the peculiar facts and
circumstances of the present case, the extra-judicial
confession given to the Kotwar (PW-4) of the village, who
is an independent witness, is a strong corroborative piece of
evidence to the eye-witness testimony of PW-1, PW-2 and
PW-4. The second aspect is that this witness has clearly
stated that it was the appellant who himself wanted to
surrender before the Police and that he along with PW-7
(Omprakash) had taken the appellant to the Police Out-Post
at Padar, P.S. Betul and had him apprehended.
11. PW-7 is Om Prakash @ Gudder. Originally, he was a
witness to both i.e. the extra-judicial confession and also
transporting the appellant to the Police Station along with PW-
4. He has been declared hostile on the aspect of the extra-
judicial confession, but however, he has clearly stated that he
along with PW-4 took the appellant to the Police Out-Post at
Padar, P.S. Betul, to have him apprehended and that the
appellant was having an axe with him.
12. Learned counsel for the appellant had also referred to
Exhibit P-20, which is the F.S.L. report, where the axe that
was seized from the appellant as article 'E' on which human
blood has been found, but the blood group 'ÁB' has not been
found on that. The blood group has only been found on article
G-1, which is the pant being worn by the deceased. Learned
counsel for the appellant has submitted that the blood group
'AB' cannot be considered, as that of the deceased with
certainty, as the blood group of the deceased was never tested
separately. However, as the blood group has been detected
from the blood stains on article G-1, which is the pant worn by
the deceased, and the fact that none of the witnesses or the
appellant had suffered any injury, eliminates the probability of
the pant being contaminated with someone else's blood stains
and, therefore, the most probable inference which can be
drawn is that the blood stains found on the pant worn by the
deceased at the time of the incident belonged to the deceased.
13. Lastly, learned counsel for the appellant has submitted
that the probability of excluding a sudden fight or sudden and
grave provocation cannot be excluded in this case and that the
same may be taken into consideration if this Court is not
satisfied with regard to the innocence of the appellant.
14. We are of the considered opinion that the statements of
PW-1, 2 and 6 who were the eye-witnesses in this case, are
consistent on material particulars which goes to reflect that
they corroborate each other substantially on the core aspects of
the prosecution's case. The supporting evidence of PW-4 and
PW-7 relates to the subsequent events where the appellant had
surrendered first before the Kotwar (P.W-4) and confessed
about his crime to PW-4 and thereafter PW-4 along with PW-7
transported the appellant to the Police Station to have him
apprehended along with the axe, at the behest of the appellant
himself.
15. Under the circumstances, the embellishments that may be
borne out in the statement of PW-1, 2 and 4 are extremely
minor and do not go to the core of prosecution's case and they
are suitably corroborated and supported by the statements of
PW-4 and 7, who are witnesses to the subsequent events.
16. As regards the mitigation of the offence from one under
Section 302 of IPC to 304 IPC are concerned, we find no
reason to do the same. The gross possibility or probability of a
sudden fight between the three cannot be assumed with the
absence of evidence to that effect. No witness speaks about the
quarrel immediately preceding the assault.
17. We may have been able to presume a sudden fight as a
probability, if the assailant and the victims were in an
inebriated state where human experience shows that in such a
situation, a quarrel or a sudden fight is probable. However, in
this case there is no evidence to show that either the appellant
or the victims were in an inebriated condition. The act of the
appellant coupled with the nature of injuries which has been
proved by PW-8, which shows that there were 10 incised
injuries on the body of the deceased Shivpal and 8 incised
injuries on the body of Jangu. All of them were on the vital
parts causing the death of the two deceased almost instantly,
we are unable to take the action of the appellant out of the
purview of Section 302 of the I.P.C..
18. The arguments of learned counsel for the appellant with
regard to the absence of motive is irrelevant to the facts and
circumstances of the present case giving due cognizance to the
eye-witnesses testimony, which is unequivocal and
unambiguous and fully inspires the confidence of this Court.
19. Under the circumstances, we dismiss the appeal and
uphold the impugned order passed by the leaned trial court. It
is however within the ambit and scope of executive discretion
of the State to consider the aspect of remission, on which, this
Court has nothing to say.
(Atul Sreedharan) (Sunita Yadav)
Judge Judge
a/ss/pnm
Digitally signed by ASHISH
DATTA
Date: 2021.10.07 12:54:00 +05'30'
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