Madhya Pradesh High Court
Anand @ Tattu vs State Of M.P. on 15 September, 2021
Author: Vivek Rusia
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THE 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.346/2009
Appellant: [email protected] S/o Vinayak Rao
(In-jail) Age- 23, R/o13/2, Ram Nagar Bhamori,
District- Indore(M.P.)
Versus
Respondent: State of M.P.
through P.S.- M.I.G. Indore
District- Indore (M.P.)
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For Appellant (s) :Ms. Sharmilla Sharma
For Respondent (s) :Ms. Mamta Shandilya
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Criminal Appeal No.946/2009
Appellant: [email protected] Tattu , S/o Laxman Maratha
(in jail) Age- 23, R/o 13, Nadiya Nagar,
District Indore (M.P.)
Versus
Respondent: State of M.P.
through P.S.- M.I.G. Indore
District- Indore (M.P.)
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For Appellant (s) : Mr. Anand Soni
For Respondent (s) : Ms. Mamta Shandilya,
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JUDGMENT
(Delivered on 15/09/2021)
PER VIVEK RUSIA, J:-
The appellants have filed these criminal appeals against the
judgment dated 09.01.2009 passed by the XX Additional Sessions
Judge, (Fast Track Court), Indore (M.P.) in S.T. No.225/2007
whereby the appellant [email protected] Manoj has been convicted as
under:-
Section R.I. Fine Default
364 of IPC Ten years Rs. 2,000/- Three months
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302/34 of IPC Life Imprisonment Rs.3,000/- Six months
and appellant [email protected] Tattu has been convicted as under: -
Section R.I. Fine Default
364 of IPC Ten years Rs. 2,000/- Three months
302/34 of IPC Life Imprisonment Rs.3,000/- Six months
2. The prosecution story of this case in short is as under: -
i. On 26.03.2007 Anar Singh, police constable, Heera Nagar,
police station recorded a Dehati Nalashi Exhibit-P/11 on the spot
P.C. Sethi Nagar, near Mata Mandir, Indore according to which at
midnight in the night on information was given by Mangal Singh
S/o Babusingh (deceased) resident of 47, P.C. Nagar that he was
standing near Mata Mandir at 12 in the night then [email protected] Tattu
and [email protected] Manoj came there and Anand said that nowadays
you are becoming smart and today you would be finished. He
took out the knife and stabbed him on the left side of his stomach.
He has started bleeding. The [email protected] Manoj caught hold of him
and mounted on a motorcycle, took him to Heera Nagar ground
via M.R. 10, thrown him on the ground. Thereafter [email protected] Tattu
took out the petrol from the motorcycle and set him ablaze. His
face, back, hand, neck was burnt. He ran away and climb over one
house, by that time police came there. Accordingly, to him, the
entire incident was witnessed by the residents. After recording the
aforesaid Dehati Nalashi, since the offence was committed within
the jurisdiction of M.I.G. Police Station, Indore therefore, after
putting a note he sent the Dehati Nalashi through Anar Singh
constable to M.I.G. Police Station.
ii. M.I.G. Police Station has registered an FIR at crime
No.324/2007 under sections 307 and 34 of the IPC against both
the appellants at the instance of Mangal Singh. Since Mangal
Singh was injured, therefore, he was taken to the M.Y. Hospital by
Anar Singh constable, after initial examination, Dr. Vijay Agrawal
has found burn injuries 9% on the neck, 9% on the chest, 9% on
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the back and 9% on the stomach of Mangal Singh. With the smell
of petrol, Dr has also found a fresh incise wound of size 4x1x9
(fresh). He referred the patient to the surgical department. Ashok
Shrivastava A.S.I., M.I.G. Police Station, Indore P.W.-20 reached
the M.Y. Hospital and obtained permission in writing from the
doctor for recording the statement of Mangal Singh. He
immediately called Rajnish Shrivastava Tehsildar for recording
the statement i.e. the dying declaration. After 15 minutes he
reached the M.Y. Hospital and recorded the statement of Mangal
Singh vide. Exhibit-P/20. He took the signature of Mangal Singh
and the doctor. As per the statement of Mangal Singh between 11
to 12 in the night, he was standing near the house along with Tilak
and Amrit and suddenly Anand and Maniya came and started
abusing him. Anand stabbed the knife on his thigh and Maniya
caught hold of him mounted on the motorcycle and drove to
Jeevan Ki Ser Tappu Nagar thereafter, near bridge of MR-10
Anand poured petrol on him then he ran away and from behind
someone from both of them set him to fire. He went inside the
house and poured water from the pot. By that time the resident of
the colony called the police. He has shown ignorant as to why
they have caused the incident to him because they are all known
to each other.
iii. After registration of the FIR prosecution case set into
motion. The police reached the spot and prepared a Naksha
Panchayatnama. [email protected] Tattu was arrested on 27.03.2007 at
20:15 hrs and [email protected] Manoj was arrested at 20:20 hrs. A
knife was recovered from accused Anand. Mangal Singh died on
03.04.2007 during the treatment. The dead body was sent to the
postmortem which was conducted by Dr. N.M. Hunda. As per the
autopsy report, the death was due to cardiac respiratory failure as
a result of stab injuries to the abdomens and burnt injuries and
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their complications. The death is homicidal in nature Exhibit-
P/29.
iv. The police has sent the clothes of the deceased, the clothes
of the appellants and the knife recovered from the spot to the FSL.
Vide Exhibit-P/34 the half-burnt shirt of Mangal Singh petrol was
found vide FSL report Exhibit-P/36. As per the FSL report,
Exhibit-P/37 bloodstains were found on the trouser of the
deceased Mangal, and the Shirt of Anand, Maniya and knife but
they were insufficient and disintegrated hence, no blood group
could be ascertained.
v. After completing the investigation police filed the final
charge sheet against both the appellants for the offences
punishable under sections 302, 307, 294, 364 and 34 of the IPC
and section 25 of the Arms Act. The trial was committed to the
sessions court and the learned Additional Session Judge, framed
the charges under Section 302, 364, 25-1-B and B of the Arms Act
against [email protected] Tattu and under section 364, 302/ 34 of the IPC
against [email protected] Manoj. The prosecution has examined as many
as 20 witnesses as P.W.-1 to P.W.-20 namely Amritsingh P.W.-1,
Anil P.W.-2, Jawansingh Nayak P.W.-3, Yashodhabai P.W.-4, Tilak
P.W.-5, Dr. Vijay Agrawal P.W.-6, Rameshwar P.W.-7, Ramkishan
P.W.-8, Rajinish Shrivastava P.W.-9, Deepchand P.W.-10,
Shashikdharan Nayak P.W.-11, Musa Khan P.W.-12, Dinesh P.W.-
13, Prashant P.W.-14, Anarsingh P.W.-15, Shekhar P.W.-16, Ashok
P.W.-17, Dalusingh P.W.-18, Dr. N.M. Hunda P.W.-19, Ashok
Shrivastava P.W.-20, and got exhibited 38 documents as P-1 to P-
38. In defense appellants did not witness any witnesses and
pleaded for false implication by the police.
vi. After evaluating the evidence came on record the learned
Additional Sessions Judge, vide judgment dated 09.01.2009 has
acquitted [email protected] Tattu under section 25-1-B, B of the Arms Act
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and convicted both the appellants under Section 364, 302/34 of
the IPC and sentenced as stated above hence both the appellants
have filed two separate appeals before this Court.
3. Ms. Sharmilla Sharma, learned counsel for the appellant
[email protected] Tattu submitted that the trial Court has erred in
convicting the appellant under Section 302/34 and 364 of the
I.P.C., when none of the eyewitnesses has supported the case of
the prosecution. In the dying declaration, the deceased did not
disclosed any motive and the prosecution has proved motive in
this case. There are various omissions and contradictions in the
statements of the witnesses. The conviction is based only on the
dying declaration and on the statement of Yashodha Bai P.W.-4
who is not an eyewitness. The deceased did not die due to the stab
injury or the burn injury he remained in the hospital for many
days but he was not treated well therefore succumbed, no case is
made out under Section 302 of the IPC against the appellant.
According to the dying declaration, the entire incident was
witnessed by residents but none of them has supported the case of
the prosecution in Court hence, appellant: [email protected] is liable
to be acquitted.
4. Shri Anand Soni, learned counsel for the appellant-
[email protected] Manoj submitted that Mania has wrongly been
convicted under Section 302 of the IPC with the aid of Section 34
of the IPC. As per the dying declaration, the stab injury was
caused by Anand @Tattu followed by pouring the petrol and
putting the deceased into the fire. None of the eyewitnesses has
supported the case of the prosecution. Yashodha Bai, P.W.-4 is a
hearsay witness and according to her Ramkishan P.W.-8 had
informed her about the incident and Ramkishan had turned
hostile, therefore, in absence of corroboration learned trial Court
has wrongly relied on P.W.-4. Jawansingh Nayak P.W.-3 cited as
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witnesses of the oral dying declaration . Jaswant Singh reached to
the spot along with constable Arjun Singh and Anar Singh who
recorded the Ravanghi Roznamcha at Exhibit-P/13 and Vaapsi
Roznamcha at Exhibit-P/14. Learned Additional Sessions Judge
has failed to appreciate that in Vaapsi Roznamcha nothing has
been recorded about the assault by the appellants to deceased
Mangal Singh. Learned trial Court has wrongly relied on a dying
declaration Exhibit-P/20 as it is not signed by any witnesses. The
physical and mental condition of the deceased to record the
statement is not mentioned in it by a treating doctor. The
prosecution has not examined the treating doctor who reported
about the mental and health condition of Mangal Singh at the time
of recording of the dying declaration. Despite so many infirmities
in the dying declaration, the same has been made the basis for the
conviction of the appellant. The only allegation against the
appellant is that he drove the motorcycle but no such motorcycle
has been seized and the deceased did not disclose the registration
number of the motorcycle, therefore, this appellant is liable to be
acquitted.
5. Ms. Mamta Shandilya, learned Govt. Advocate for the State
argued in support of the judgment passed by the learned
Additional Sessions Judge by submitting that before the recording
of the dying declaration of the deceased the doctor has duly
certified that the patient is in a condition to recording the
statement. The deceased himself signed the statement thereafter,
again the doctor has certified that he is conscious. There is no
necessity of taking the signature of witnesses in the dying
declaration. The dying declaration was recorded on 27.03.2007.
He remained in the hospital for treatment till 03.04.2009 and
thereafter, he died therefore, there is no reason to disbelieve the
dying declaration in which the deceased has clearly named these
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two appellants. Minor omissions and contradictions in the
statements have rightly been ignored by the learned Additional
Sessions Judge. Dr. Vijay Agrawal who immediately attended the
deceased in a burnt condition has reported the smell of petrol
which has been affirmed in the FSL report. There is a
corroboration by medical evidence with the dying declaration
hence, the conviction is liable to be maintained.
We have heard learned counsel for the parties at length and
perused the record.
6. Jawansingh P.W.-3 inspector examined by the prosecution,
received information from the control room that one miscreant
has climbed on a roof of the house at Sector-A Abhinandan Nagar.
He recorded his Ravangi in the Rognamcha and took constable
Arjun Singh and Constable Anar Singh with him and reached to
the Abhinandan Nagar in a Govt. vehicle MP-09-4969. He
reached to the roof of H.No.168 and found Mangal Singh wearing
only underwear in an injured condition he was bleeding from the
stab injury and narrated the incident to him. On his information he
recorded the Dehati Nalashi under Section 307 read with 34 of the
I.P.C. on the spot. In the cross-examination, he has explained that
when he has recorded the entire incident in Dehati Nalishi then
there was no need to record it again in Roznamcha and vapsi
roznamcha. This witness was cross-examined at length, but he
remained strict to his stand taken in court. We have no reason to
disbelieve him.
7. The prosecution has examined Anar Singh as PW-15 who
accompanied P.W.-3 on 26.03.2007. According to him the FIR
was lodged as Exhibit-P/24 by S.I. Musa Khan (P.W.-12) in his
presence. He has admitted his signature in Exhibit-P/24. The
prosecution has also examined Musa Khan as P.W.-12 who
registered an FIR Exhibit-P/24. It is clear from the aforesaid three
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witnesses that Mangal Singh was found in an injured condition on
the roof of the H.No.168 Abhinandan Nagar by Jawansingh and
fact of registration of Dehati Nalashi and registration of the FIR.
8. Since Mangal Singh was found in an injured condition he
was immediately sent to the M.Y. Hospital where he has been
attended by Dr. Vijay Agrawal P.W.-6 who found burnt injuries on
various parts of the body and fresh stab wound in his stomach. He
recorded the patient history vide Exhibit-P/17 and sent him to
surgical department. He remained in the treatment up to
03.04.2009 succumbs to the injuries. Vide Exhibit-P/28 Kantilal
telephone operator gave an information to the police station, Vijay
Nagar about the death of Mangal Singh on 03.04.2009 at 1:45
p.m. Immediately dead body was sent for postmortem.
Postmortem was carried out by Dr. N.M. Hunda examined as
P.W.-19 and as per his opinion Mangal Singh died due to cardiac
respiratory failure as a result of stab injuries to the abdomens and
burnt injuries and their complications. There is no challenge to the
injuries sustained by the Mangal Singh and the cause of death by
the appellants in these appeals therefore, we hereby affirmed
findings recorded by the learned Additional Sessions Judge that
the deceased sustained burnt injuries, stab injuries and succumbs
to it and the death was homicidal as per the P.W.-6, P.W.-19 and
the postmortem report.
9. Now the sole issue which requires our consideration, is
whether the appellants have abducted Mangal Singh and killed
him?
10. Apart from the dying declaration given by the deceased
himself the prosecution has examined Amrit singh P.W.-1 who has
denied the incident took place on 26.03.2007 but according to him
he knew Mangal Singh who is not alive. In cross-examination he
admits that he took the mother of the Mangal Singh to the police
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station Vijay Nagar in the night for lodging the report about the
incident. Anil examined as P.W.-2 a resident of P.C. Sethi Nagar is
a neighbour of Mangal Singh who has affirmed the murder of
Mangal Singh but denied the seizure of cloth in his present
however, he has admitted his signature in the seizure memos.
P.W.-1 and P.W.2 both have turned hostile. Yashodha Bai, P.W.-4
mother of the deceased was examined as P.W.-4 and according to
her on the date of incident Mangal Singh left the house after
taking meals at 11 p.m. and sitting in front of Mata Mandir,
Indore. She received an information from Amrit Singh that Anand
and Mania have assaulted his son by knife. She called Amrit and
went to the police station with Amrit. They reached to the spot,
but no one was found there. Thereafter, police from Heera Nagar
police station came and informed her that Mangal is admitted to
M.Y. Hospital. She reached there and found him in a burnt
condition. Mangal told her that [email protected] Tattu and [email protected]
Manoj assaulted him however, she has been examined as a
hearsay witness but she has confirmed that she found Mangal in
the injured condition and thereafter, she went to the police station
along with Amrit Singh P.W.-1 who has admitted this in his cross-
examination. Tilak (P.W.-5) has also supported the case of the
prosecution to the extent that on the date of the incident he was
sitting with Mangal Singh and Amrit near Mata Mandir Indore. At
11 p.m. both the appellants came there and cause the stab injury
on his thigh thereafter, he came to his house and slept. After 15
minutes mother of Mangal Singh came there and informed her
that Mangal has been killed and he went to sleep thereafter, he
was declared hostile. There is enough corroboration of the dying
declaration by P.W.-5 although he has been declared hostile
however, his entire deposition cannot be discarded. Ramkishan
P.W.-8 has also witnessed the altercation going on between
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appellants and Mangal Singh between 10 to 11 p.m. near Mata
Mandir thereafter, he received information about the assault to the
Mangal Singh therefore, although he has been declared hostile his
initial testimony is supporting the case of the prosecution.
Accordingly, we are affirming the findings that the prosecution
has been able to establish the presence of these two appellants
along with Mangal Singh and altercation between them thereafter,
causing stab injuries to him.
11. Deep Chand P.W.-10 has admitted his signature on Safina
Form Exhibit-P/21, Naksha Panchyatnama Exhibit-P/22 and
handing over the dead body to the family members. Shashidharan
Nayak P.W.-11 on whose roof the injured was found by the police
and according to him he dial 100 number and called the police.
The police brought him down from the roof. He provided a bed
sheet to the police. Although his house number mentioned is 268-
A and in the statement of P.W.-3 it is mentioned as 168 but these
conflicts are minor and did not affect the prosecution case. This
has no relevance with the cause of death because the prosecution
has established that the deceased was found on the roof of the
house in an injured condition. Dinesh P.W.-13 and Prashant P.W.-
14 and Shekhar P.W.-16 have completely turned hostile.
12. Ashok P.W.-17 has stated that on the date of the incident
one person came into his hut in burning conditions and poured the
water from the pot and thereafter he climbed over the roof,
thereafter, police came there therefore, the chain of the sequence
formed from that statements of P.W.-1, P.W.-2, P.W.-4, P.W.-8,
P.W.-9,P.W.-11, up to P.W.-17 completes the prosecution story
that in the night at 11 p.m. appellants reached to near the Mata
Mandir where the deceased was standing along with two others.
There was an altercation between them and thereafter, Anand
stabbed the injury and thereafter they took him in the motorcycle
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he came in the hut of P.W.-17 and poured water from the pot over
him and distinguished the fire and thereafter he climbed over the
roof of the house of P.W.-11 and from where he was recovered by
P.W.-3 Jamsingh. He was taken to the M.Y. Hospital where the
doctor has found him in a burnt condition. He was given treatment
and he succumbs to injuries on 03.04.2009. As per the
postmortem report, he died because of injuries.
13. So far as the complicity of these two appellants in this case,
as per the dying declaration of Mangal Singh, [email protected] Tattu has
stabbed on his thigh by knife thereafter, Maniya @ Manoj drove
him to another place on the motorcycle and thereafter Anand
poured petrol on him and one of them has set him to fire from
behind. The only allegation against [email protected] Manoj is that he
was with [email protected] Tattu and he took him on the motorcycle to
another place where he was put to the fire. Moreso the
prosecution did not examine any of the witnesses who witnessed
the incident of putting Mangal Singh into the fire. As per the
dying declaration, Anand poured petrol and set him into the fire
from behind his back. There is no specific allegation against the
[email protected] Manoj for causing stab injuries and putting him into the
fire that is why he has been implicated with the aid of section 34
of the IPC. The police has failed to recover any motorcycle from
Maniya . No one has disclosed the registration number and name
of the owner of the motor cycle. The blood-stains are found on the
shirt of the Maniya . As per the FSL report, the vestige of petrol is
found on the half-burnt shirt of the deceased and the statement of
Dr. Vijay Agrawal that there was a smell of petrol therefore, the
deceased was burnt by the appellants after pouring petrol, hence
establishes the complicity of both the appellants. In defence,
appellants did not adduce any evidence to establish their
innocence they have simply denied every question or suggestion
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given by this Court.
14. So far as the main contention of learned counsel for the
appellants is that there is no attesting witness in the dying
declaration. The law is very well settled when the dying
declaration is himself signed by the deceased and by the Tehsildar
who recorded the statement then no witnesses are required to
certify their signature. The doctor gave an opinion before
recording the dying declaration and after recording the conclusion
again certified that the injured was conscious enough therefore,
we have no reason to disbelieve that the dying declaration and
create over the dying declaration.
15. In view of the above observation, we do not find any ground
to interfere with the judgment passed by the learned Additional
Sessions Judge, Fast Track Court Indore (M.P.) by which the
appellants have been convicted under Sections 364, 302 and
Section 34 of the I.P.C. of the Indian Penal Code, hence, both the
criminal appeals are hereby dismissed.
Let the record of the trial court be sent back along with
judgment for compliance.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Ajit/-
AJIT
Digitally signed by AJIT KAMALASANAN
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH
BENCH INDORE, ou=HIGH COURT OF MADHYA
PRADESH BENCH INDORE, postalCode=452001,
st=Madhya Pradesh,
KAMALASA 2.5.4.20=156c9cedca1b74d671db9f220a5e3ed6cba
241effad892107d95ef0a1afc55b4,
pseudonym=CFDFD9C36711CA738F527A5D61A1EE
901C09EF29,
NAN
serialNumber=7F0BEE2D78BD57DA058F3247441C8
7E7E0817FB61F5E2ABCAEE63CAAA7B3B9FF,
cn=AJIT KAMALASANAN
Date: 2021.09.16 17:51:33 +05'30'
