Madhya Pradesh High Court
Mohan vs State Of M.P. on 28 September, 2021
Author: Vivek Rusia
1 CRA. No.1438/2008
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE MR. JUSTICE VIVEK RUSIA
HON'BLE MR. JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL NO.1438 OF 2008
Mohan S/o Mannu Lal
Age: 20 Years
Occupation: Labour and Helper
Address: Bahadur Pur,
District- Ashok Nagar (MP)
...... Appellant
Versus
The State of Madhya Pradesh
Through Police-Station-Maksi,
District-Shajapur (MP)
...... Respondent
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Ms. Rekha Shrivastava, learned counsel for the appellant.
Ms. Mamta Shandilya, learned counsel for the
respondent/State.
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JUDGMENT
(Delivered on 28th day of September 2021)
Per Shailendra Shukla, J:
The appellant has filed the appeal under Section 374 of
Criminal Procedure Code, 1973 being aggrieved by judgment
of conviction and sentence pronounced by First Additional
Sessions Judge, Dewas, in case No.188/07 vide judgment
dated 12.11.2008 as under:-
Conviction Sentence
Section & Act Imprisonment Fine Amount Imprisonment
in lieu of fine
302 IPC Life Rs.1,000/- 03 Months RI
Imprisonment
394 IPC 05 Years RI Rs.1,000/- 03 Months RI
2. Precisely speaking, the prosecution story in short was
that on 10.06.2007 at about 7:00 am, the appellant - Mohan
gave an oral information at Police-Station-Maksi, District-
Shajapur (MP) that he was the cleaner of truck bearing
registration no.MP07G-2234 whose driver was one Veerpal
Singh Parihar. As per the information, the informant along with
Veerpal Singh (driver) had loaded manure in the aforesaid
truck on 09.06.2007 and proceeded from Dewas to Guna. The
truck developed some mechanical problem near a place which
was about 7 kms away from the Police-Station - Maksi and
they decided to spend the night in the truck. The driver Veerpal
Singh slept in the cabin of the truck whereas the informant
slept on the top of cabin. The informant had got up at about
2:00 am and had gone to fetch water to nearby Dhaba and he
came back again and slept at 6:00 am, the informant came
down and peered inside the cabin he saw Veerpal Singh was
lying below with blood oozing out of his face and nose and he
had already died. On the basis of information so received,
merg was registered by SHO who proceeded to the spot and
prepared inquest. The IO prepared the spot map and thereafter
the statements of witnesses were recorded. On questioning,
the informant Mohan gave his memorandum on the basis of
which Rs.22,280/- were recovered from the tarpaulin besides
the top of the cabin. The screw-driver and one Kurta were also
seized whose seizure memo was prepared. The postmortem
of deceased - Veerpal Singh was conducted and it was found
that the death had occurred due to excessive loss of blood
from his body. It was concluded that the appellant had
committed the murder in order to loot the amount from the
deceased Veerpal Singh which he had obtained on selling
fodder (Bhusa) which had been transported and unloaded
earlier at Dewas from where manure had been loaded and was
being transported back. The seized items were sent to FSL and
after residual investigation, chargesheet was filed in the Court
of JMFC Dewas to Sessions Judge, Dewas from where it was
made over to trial Court to report to 01st ASJ, Dewas.
3. Charges were framed against the appellant under
Section 302 and 394 of IPC. The appellant abjured his guilt
and took a defense that when he went to the police-station
Maksi to lodge a report, he was assaulted by the police and
hence he had received the injuries, that he is innocent and has
been falsely implicated in the offence.
4. The prosecution has examined 10 witnesses in all
whereas the appellant has himself and Scientific Officer Dr.
Ajay Sharma (DW/1).
5. In the appeal which has been preferred by the appellant,
it has been stated that the appellant had himself given the
information, that the prosecution has not been able to prove
important links in the circumstantial evidence, that conduct of
appellant was natural but he was assaulted and his signatures
were forcibly taken on memorandum statements, that contrary
to prosecution story, no stab injuries by screw-driver have been
found on the person of deceased, that there are serious
lacunae in the investigation which have not been considered by
the trial Court. On this ground, the appellant had sought
acquittal.
6. The question before us for consideration is whether in
view of the aforesaid oral submissions and other submissions
contained in the appeal, the appellant is liable to be acquitted
from the offences found proved against him by the trial Court.
7. The prosecution story is that the truck had developed
some mechanical trouble on the evening on 09.06.2007 and
had been rendered dis-functional.
8. Nirbhay Singh Dhakad (PW/3) states that he was posted
as 'Sainik' in Home Guard in Police-Station - Maksi on
09.06.2007. This witness states that on 9.6.2007 he was
performing his duties at Belari zone along with another Sainik
called Sitaram. At about 8 to 9 p.m. a truck was found to be
stranded in the middle of the road impeding the traffic. The
truck was bearing Registration No.MP07-2234. On inquiring, it
was told that the pump of the truck has fall off and, therefore, it
could not move. The truck was then manually pushed sideways
to clear the traffic jam. The cleaner of the truck then went off to
sleep on the top of the truck and driver slept below in the truck.
Thereafter the witness went back to his point on duty and in the
morning he came to know that the truck driver has been
murdered. He states that the cleaner was arrested in his
presence and there were nail scratch marks on his person. He
has identified the appellant as the Cleaner. In the cross-
examination he has stated that in the Rohnamcha Sanha, there
is a mention regarding his departure from his duty point. He
states that convoy is generally arranged from the main road at
Belari village and, therefore, he is required to be on duty at that
point and the truck was about 400 to 500 feet away from the
convoy point. He states that it took about 10 to 15 minutes for
pushing the truck to the side of the road. He states that he had
seen the appellant again the next day at about 10 a.m. and the
appellant was in the lockup of Police Station Maksi. He had
earlier also seen the appellant when he had come to give
information in the police station.
9. There is nothing in the cross-examination of Nirbhay
Singh (PW-3) which may create doubt in his statements made
in examination-in-chief. The witness is not an interested
witness and has stated what he did while performing his duties
in his capacity as Sainik in Home Guards on the night before
the incident. From his statements it is substantiated that the
truck bearing Registration No.MP07-2234 had in fact become
dysfunctional and that the appellant had slept on the top of the
truck and the deceased had slept in the cabin of the truck,
which is the case of the appellant as well.
10. Rajendra Sharma (PW-5) is the SHO posted at Police
Station Maksi. He states that on the basis of oral information of
Mohan (appellant) he had registered the Merg at No.15/07 and
had proceeded to the spot and prepared spot map Ex.P/3. He
states that he had prepared the inquest Panchnama of the
body of Veerpal, which is Ex.P/5 and had seized the
registration papers along with insurance and permit of the truck
bearing Registration No.MP07-2234. He also collected the
blood from cabin of the truck with a cotton and seized it. The
seizure memo of the seized items is Ex.P/6 carrying his
signatures from A to A part.
11. Amrit Singh (PW-8) is the witness of Ex.P/6 and the
inquest report. He admits that inquest document Ex.P/5 was
prepared in his presence, in which is signatures are from B to
B part and the truck along with its documents was seized as
per Ex.P/6 which bears his signatures from S to S part.
12. The owner of the truck S. Kumar Jain (PW-1) has stated
that the aforesaid vehicle MP07-G-2234 is owned by him,
whose driver was Veerpal and the cleaner was appellant
Mohan. Apart from the aforesaid truck, three other trucks are
owned by the witness as per his statements. He has stated that
the aforesaid truck was loaded with fodder from a village near
Ashok Nagar on 6.6.2007 for being transported to Indore,
which was being driven by Veerpal with appellant Mohan as
Cleaner. He states that Veerpal was working with him for two
years and Mohan was brought by Veerpal only about one and
half months before for working as cleaner. As per the witness
after unloading the vehicle at Indore, the payment of
Rs.22,500/- was received by Veerpal and Veerpal then loaded
the same vehicle with manure at Dewas and intimated the
witness that he is setting out for Guna. As per this witness, on
the next morning appellant Mohan called him up on phone and
told him that Veerpal is lying inside the cabin and is not getting
up. The witness states that at that point of time the vehicle was
at about 5 k.m. away from Dewas. Witness states that he then
asked Chandrabhan, who was the driver of another truck
owned by the witness who was moving on the same road and
asked him to look into the matter. Meanwhile the witness
informed the father of Veerpal who was accompanying him and
he came down to Shajapur. Mohan who was in lock up on
being asked, told that he was sleeping at the time of incident
and does not know as to what had transpired. He had also told
that he had gone to fetch water. He states that he asked the
police personnel as to whether they could recover the payment
made to Veerpal, the reply was given in negative. In cross-
examination he states in Para-7 that he had arrived at
Shajapur at about 2.30 p.m. after he had received information
at 5.30 am. He states that he first arrived at Maksi Police
Station and then went to Shajapur where body of Veerpal was
lying. He had asked Mohan before the police and Mohan had
told him that he does not know as to what had happened. In
Para-9 the witness states that 3 days later he had again met
the police when he had gone to get the possession of the
vehicle and police had told him that appellant has confessed
his offence.
13. Chandrabhan (PW.10) has stated that he was a driver of
truck bearing registration No. MP.08.104 and was employee of
Shailendra. He states that he had loaded the fodder from
Ashoknagar and set out for Indore at about 9.30P.M and slept
at a Dhaba namely Rajesh Dhaba near village Bichor. He
received a call from his master Shailendra Jain in which he has
told to look into the incident involving driver of another truck
Veerpal near Makshi. As per the witness, he set out in is
vehicle towards the spot and found another truck bearing
registration No. MP07G-2234 of his master and other three
police vehicles stationed besides the vehicle. He saw Veerpal
stuck in between the driver seat and was already dead. The
body of Veerpal was taken off and his injuries were seen after
removing his clothes and there were as many as 24 injures
with 10-12 injuries on the stomach and the injuries were such
as cause by a screw driver. The appellant was also seen at the
spot by the witness. The witness states that the appellant had
also been found to be injured. The police prepared the
Panchnama of the body of Veerpal. In cross-examination, he
states that the police had not taken his signatures on any of the
documents. He states that the cleaner (appellant) was found to
be sitting in the police Jeep. There is nothing in the cross-
examination of this witness which would make his statements
unreliable. Shailendra (PW.1) who was the owner of the vehicle
has already made a statement that on receiving the
information, he had asked his other driver Chandrabhan to
arrive at the spot and look into the information received by him.
Shailendra (PW.1) has not been found to be unreliable. Thus,
on conjoint reading of statements of Shailendra (PW.1) and
Chandrabhan (PW.10), no doubt remains that the body of
Veerpal was found inside the cabin and that there were injury
marks on his body.
14. Chandrabhan (PW.10) has stated that the injuries were
such as could be caused by a pointed object like screw driver.
Ex.P/5 is the Panchayatnama of the body of Veerpal. The
perusal of the same shows that there are seven injuries on the
chest of the deceased which have been caused with pointed
object and such injuries are near to each other. On the left side
of the chest, there is long cut. It is concluded in Ex.P/5 that the
death of Veerpal has been the result of attack with a pointed
object.
15. Dr. Ajay Sharma (DW.1) who has been examined by the
appellant has stated that he had also inspected the spot and
prepared the inspection report which is Ex.D/1. The perusal of
the said report shows that there are seven injuries on the left
side of the chest of the deceased caused by a weapon akin to
screw driver. Dr. Ajay Sharma is a Scientific Officer in the FSL
Mobile Unit posted at District Shajapur. Thus, from the inquest
report Ex.P/5 and spot inspection report prepared by seen of
crime (Mobile Unit) District Shajapur Ex.D/1., the injuries which
were found on the person of the body, were apparently caused
by a pointed object like screw driver inflicted on the left side of
the chest resulting in his death.
16. Dr. R.K. Saxena (PW.9), who conducted the post-
mortem of Veerpal Singh found following injuries on his
person:
(1) A contusion 5x4 cm on the head and forehead
on the right sight.
(2) A contusion 4x4 cm on the left side of the skull.
(3) Swelling and bruise contusion 10x6 cm on the
right shoulder and arm.
(4) Four circular contusion marks on the left side of
chest 6x5 cm.
(5) A contusion 4x6 cm on the left side of the chest.
(6) A contusion 5x1 cm on the right side of the
chest.
(7) A contusion mark 6x2 cm on the scapular region
of the shoulder.
(8) A contusion 3x1 cm also on scapular region of
right shoulder.
(9) A contusion 4x1 cm on the left thigh.
17. On internal examination, it was found that the right frontal
bone had got fractured and there was accumulation of blood in
the brain membrane. The femural and clavicle bones of the
right hand had been found to be broken and 8 th, 9th and 10th
ribs were also found to be fractured. The first injury i.e. in the
injury in which frontal bone of the skull was found to be
fractured was considered to be dangerous to life and other
injuries were grievous in nature. All the injuries were
antemortem and cause of death was excessive blood loss from
the body.
18. The aforesaid post-mortem report shows brutal assault
on the deceased Veerpal. Dr. R.K. Saxena (PW.9) has found
four circular contusion marks on the left side of the chest.
However, he has not stated how these circulars marks could
have been formed. These are the marks which correspondent
to inquest report Ex.P/5 and FSL report Ex.D/1 showing
assault with a pointed object like screw driver. Thus, it appears
that these injuries were in fact caused with a pointed object
and Dr. R.K. Saxena (PW.9), who has conducted internal
examination, has not introspected as to how the circular
contusions on the left side of the chest could have been
caused. The depth of these circulars marks injuries have not
been ascertained by Dr. R.K. Saxena (PW.9).
19. On the basis of memo of appellant Ex.P/8, Investigating
Officer Rajendra Sharma (PW.5) has seized the screw driver
allegedly used by the appellant in the seizure memo Ex.P/8.
The screw driver was found to be hidden below the seat of the
cabin of the vehicle. Independent witnesses of memo and
seizure are Sohan (PW.6) and Amrit Singh (PW.9) and both
have turned hostile. This screw driver has been sent to FSL
and the FSL report is Ex.P/13 in which no trace of blood has
been found on the screw driver, although in the seizure memo
Ex.P/9, trace of blood have been shown to be existing on the
screw driver. Thus, there does appear to be a lacuna in the
investigation in the sense that the screw driver has not been
found to contain blood stains. However, the fact remains that
circular marks on the chest do correspondent to such injuries
caused by pointed object like screw driver. The scene of crime
report in this regard i.e. Ex.D/1 can not be rejected as it has
further been supported with the inquest report which is Ex.P/5.
20. As already stated, the postmortem report has revealed
number of injuries on various parts of the body of deceased.
Blood has been found on the cabin of the truck. Ex.D/1 i.e.
scene of crime report shows vermilion colored paint which was
the paint of the cabin on the back of the head of deceased.
This itself shows that the deceased had been attacked
violently. While such violent and brutal assault was being
made, naturally sounds of the attack and shrieks etc would
have been made which would have waken up a person
sleeping just above the place where the incident took place. It
is surprising that the appellant did not hear any such sound.
The appellant in his Merg report Ex.P/2 has stated that he got
up at 6:00AM and he peeped inside the cabin and found
Veerpal lying below. However, the truck owner Shailendra
(PW.1) has stated that Veerpal had already called him at
5:30AM and told him about the incident. In Ex.P/2, it has been
mentioned by the appellant that at 2:00 AM he had got up and
had went to fetch water from the Dhaba. The spot map Ex.P/3
shows that there was nearby Dhaba of Dinesh Prajapati.
However, the aforesaid Dhaba owner has not been examined
by the appellant in his defense. If Ex.P.2 were to be believed, it
would show that the appellant had been awake at 2:00AM and
the incident had occurred between that time and 5:30AM. It is
not expected that the appellant, unless drugged would not
have come to know about such ghastly incident. Apart from
sounds and shrieks, there would definitely have been jerks in
the vehicle due to scuffle which also would have alerted any
person. Hence, the conduct of the appellant becomes
suspicious.
21. Injuries have been found on the person of appellant as
well in this case. Ex.D/1 i.e. scene of crime report which
mentions scratch marks on both forearms, chest and back of
the appellant. It has been specifically mentioned in the report
that these injuries make him a suspect. Dr. R.K. Saxena
(PW.9) has examined the appellant at 3:30PM on 10.06.2007
and has found injuries on his person as given below:
(1) Contusion (bruise) and abrasion 4x2cm on right
forearm.
(2) Abrasion 2x1 cm on the middle of right forearm.
(3) Abrasion 2.5x1 cm on the lower back region
(4) Bruise on right side of the chest.
(5) Lacerated wound 1x0.5cm skin deep on the
small finger of the right hand
(6) Bruise 3x2 cm on the front side of the left knee.
22. All the injuries were simple in nature and were caused by
hard and blunt object and were caused within 24 hours. The
same doctor ie. Dr. R.K. Saxena (PW.9) has also conducted
the post-mortem of the deceased and has found his injuries
also to be within 24 hours. Thus, it appears that the injuries on
appellant were within the same time frame as were caused to
deceased. In cross-examination, Dr. R.K. Saxena (PW.9) has
admitted that the injuries to appellant could have been caused
due to fall and striking him against the wall.
23. The appellant Mohan (DW.1) has examined himself and
has stated that when he went to lodge report, instead of writing
the same, police started assaulting him with baton and with
kicks and fists and struck him against the wall due to which he
suffered injuries in his hand, chest and head. However, he
does not state that he suffered injuries due to fall which is the
suggestion given to Dr. R.K. Saxena (PW.9) in his cross-
examination. The appellant has stated that he suffered injury
on his head also but Dr. R.K. Saxena (PW.9) has found no
injury on his head. SHO Rajendra Sharma (PW.5) has denied
the suggestion that the appellant has been assaulted in the
police station. Ex.P/2 shows that Merg had already been
lodged at 7:10AM on 10.06.2007. Thus, the appellant's
submission that instead of lodging his report, he was
assaulted, does not appear to be correct. As already pointed
out, the duration of the injury on the person of appellant and
the deceased have been found to be caused within the same
time frame (within 24 hours) by Dr. Saxena (PW-6).
24. The question is whether any other person would have
assaulted the deceased. As already found, the truck was
stranded at a desolated place. There was no likelihood of any
other person having animosity wreaking vengeance on the
deceased by taking advantage of the situation. The body of the
deceased was found inside the cabin near the driver seat and it
cannot be expected that the deceased would have been
attacked by many persons in such constricted space. Had
there been an attempt to commit loot, scattering of items
would have been evident for searching money etc which is not
the case. Rather, the violent manner in which the deceased
was attacked does show that the assailant was already bearing
a grudge against the deceased or was bent upon eliminating
him for reasons best known to him.
25. The Investigating Officer Rajendra Sharma (PW-5) has
stated that on interrogation of appellant Mohan, the appellant
proposed to recover Rs.22,280/- which he had drawn from the
deceased Veerpal after committing his murder and on the basis
of his memorandum, the aforesaid amount was recovered from
inside the tarpaulin which had been laid above the cabin of the
truck and the amount was wrapped in newspaper. Perusal of
seizure memo (Exhibit-P/8) shows that the aforesaid amount
was kept hidden in the fold of the tarpaulin which was kept
above the cabin of the truck. Admittedly, the appellant had
slept above the cabin only. It was for him to explain as to how
the aforesaid amount was found hidden in the tarpaulin just
adjacent to the place where he was sleeping. Along with the
aforesaid amount, the driving license of the deceased and a
receipt of Agrophos, Dewas was also formed, which was
bearing the name of Veerpal (deceased). It was only the
appellant cleaner who knew that deceased was having the
aforesaid amount.
26. Omprakash (PW-2) has stated that he had made
payment of approximately Rs.22,000/- to Veerpal, as he was
broker of selling and purchasing of fodder and that Veerpal had
sold the fodder to him on 10.06.2007. The statements of this
witness has not been challenged.
27. The appellant, as a cleaner of the truck who was always
in the company of the deceased obviously must have known
about the aforesaid transaction.
28. Learned counsel for the appellant has submitted that if
the appellant wanted to steal this money, why he would keep
the money somewhere in the truck itself as the same would
have been found out on search by the police anyway.
29. This submission was considered.
30. It appears that the appellant, confident that he being the
informer would not be subjected to suspicion, finding no other
place to hide the money, hid the same in the tarpaulin itself
hoping to retrieve it later. Thus, recovery of money from the
appellant is a relevant fact against him. It has already been
found that the injuries on his person were not likely to have
been received by him while in police custody. The owner of the
truck, Shailendra (PW-1) has himself stated that he had seen
the appellant in the lock-up. No suggestion has been given to
him that appellant had complained to him that he was being
assaulted by the police.
31. Forensic report (Exhibit-D/1) has found shirt button of the
appellant to be torn and the appellant bearing scratch marks,
which make him a suspect primarily.
32. There does appear to be one lacuna in the investigation
carried out by the investigating officer Rajendra Sharma (PW-
5) which is that this witness has stated that on the basis of
memorandum of the appellant he had recovered a blood
stained Kurta from his possession, which the appellant had
used to wipe off the blood from the cabin of the truck. On the
contrary, in the scene of crime report i.e. Ex.D/1, it has been
mentioned that the said Kurta had been found on the floor of
the truck and the Kurta appeared to have been used to wipe off
the blood. This discrepancy was pointed out to the IO Rajendra
Sharma (PW-5). He at first admits in Para-16 that the cloth was
found on the floor of the cabin but then immediately thereafter
states that it had been hidden and was recovered by the
appellant. Then he states that the appellant had taken out the
cloth from the cabin. He denies that this Kurta was lying on the
floor of the cabin. The aforesaid lacuna not standing, there is
one thing common in both circumstances which is that the
aforesaid Kurta had been used to wipe off the blood, meaning
thereby there was an attempt to obliterate marks of blood from
inside the cabin. Any stray person who would have attacked
the deceased, would never have made such attempt to wipe off
blood and only such person who would have been interested in
wiping out the trail of evidence, would have done so. This also
points to the involvement of appellant only. The conduct of
appellant has already been noticed, which is that while he had
called up his master Shailendra (PW-1) at 5.30 am informing
him about the incident, he has mentioned in Ex.P/2 that he
came to know about the incident at 6.00 am.
33. The trial Court, referring to the Apex Court judgments,
has rightfully come to the conclusion that it is for the person
who was last seen with the deceased to explain as to what
happened with the deceased. As already discussed above, no
appropriate explanation has been given by the appellant. After
duly considering the evidence available on record, it appears
that the appellant may have made an attempt to retrieve the
amount from sleeping victim. The deceased may have woken
up but could not offer much resistance due to the impact of
sleep. However he tried to resist the onslaught of assault on
him which resulted in injuries to appellant as well. The
appellant thereafter retrieved the amount and hid it on the
tarpaulin above the truck and then proceeded to lodge the
report.
34. The death of deceased has already been found to be a
result of culpable homicide. The evidence revealed does not
bring the incident into any of the exceptions of Section 300 of
IPC. The injuries were sufficient in the ordinary course of
nature to cause death. Hence, it is proved that in fact murder of
deceased had been committed.
35. The circumstantial evidence proved form a complete
chain satisfying the standards as laid down in the Apex Court
judgment of Sharad Birdhichand Sarda Vs. State of
Maharashtra [1984(4) SCC 116], which points out no other
possibility except for involvement of the appellant.
36. Consequently we find no reason to disagree with the
findings arrived at by the trial Court in convicting the appellant
under Section 302 & 394 of IPC. The quantum of sentence
imposed upon the appellant is also found to be appropriate and
calls for no interference therein. The appeal, thus, fails on the
point of conviction and sentence.
37. The disposal of the property shall be as per the order of
trial Court, in case no appeal is preferred against this
judgment.
38. Let a copy of this judgment be sent to the trial Court
along with the original record of the case for compliance.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
JUDGE JUDGE
Arun/-
Digitally signed by
ARUN NAIR
Date: 2021.09.29
15:12:21 +05'30'
