Madhya Pradesh High Court
Shyambaba vs The State Of Madhya Pradesh on 20 December, 2022
Author: Satyendra Kumar Singh
1
Cr.A. No.74/2012
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 20th DAY OF DECEMBER, 2022
CRIMINAL APPEAL No. 74 of 2012
BETWEEN:-
SHYAMBABA S/O MUNNALAL
AGED ABOUT 27 YEARS, OCCUPATION: DRIVER
R/O MOTI BAG CHOWK
DHAR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI A. S. RATHORE, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THRU. P.S.DHAR
DIST. DHAR (MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SHRI AMIT SINGH SISODIA, G.A. FOR STATE)
Reserved on : 04.08.2022
Pronounced on : 20.12.2022
------------------------------------------------------------------------------------------
This appeal having been heard and reserved for judgement,
coming on for pronouncement this day, Hon'ble Shri Justice Satyendra
2
Cr.A. No.74/2012
Kumar Singh pronounced the following:
JUDGEMENT
This appeal has been preferred under Section 374 of the
Code of Criminal Procedure, 1973 (2 of 1974) [in short "Cr.P.C."],
against the judgement dated 20.10.2011, passed by the Court of Sessions
Judge, District Dhar (M.P.) in Session Trial No.325/2009, whereby
appellant has been convicted under Section 302 of the Indian Penal
Code, 1860 (in short "IPC") and sentenced him as under :-
S. Conviction Sentence
Imprisonment Fine Additional
No.
amount imprisonment
in default of
payment of
fine
1 302 of IPC Life Rs.5,000/- RI for 1 month
imprisonment
2. The thumbnail sketch of the prosecution story is as follows :-
(i) In the intervening night of 04-05.07.2009, when A.S.I. O.P.
Shrivastava was on patrolling duty, he received an information on
wireless set that some people were fighting with knives at Mittal
Hospital, Dhar. He alongwith Constable Suresh Kushwah rushed
to Mittal Hospital and at about 00.30 hours, on the basis of an oral
complaint made by the complainant Deepak Agrawal, recorded
dehati nalishi (Exhibit-P/1), wherein he stated that about 2-3 days
ago, there was a heat of argument between appellant Shyam Baba
Cr.A. No.74/2012
and Dr. Madhusudan Agnihotri, due to which at about 12.AM
AM, appellant Shyam Baba came into the hospital and asked for
Dr. Agnihotri and when he was told that Dr. Agnihotri is on leave
and Dr. Tarun Joshi is available, then he asked to call Dr. Tarun
Joshi. And when Dr. Tarun Joshi came out from the hospital,
appellant started abusing him, consequent to which Dr. Tarun
Joshi called the security guard of the hospital i.e. the deceased
Kalyan Singh @ Kallu and thereafter, deceased forcibly ousted
the appellant from the hospital. After about 15 minutes of the said
incident, appellant and co-accused persons Basant and Deepak
Rajput alongwith three other persons entered into the hospital and
ran towards Dr. Tarun Joshi to assault him. Looking to the
scenario and act of the appellant and other co-accused persons,
deceased came and intercepted them from quarreling upon which
appellant and other co-accused persons abused and took him out
of the hospital and appellant pulled out a knife from the pocket of
his bermuda and inflicted knife blow on the deceased, due to
which, he fell down. Then, appellant alongwith other co-accused
persons took deceased's gun and fled away from the spot.
Thereafter, staff members of the hospital brought the deceased
into the hospital, wherein Dr. Deepak Nahar declared him dead.
(ii) A.S.I. O.P. Shrivastava sent the above dehati nalishi report
(Exhibit-P/1), through Constable Suresh Kushwah for registration
of FIR, on the basis of which, on the same day, at about 00.40
hours, H.C. Shobharam lodged the FIR bearing Crime
No.510/2009 (Exhibit-P/2), at Police Station Dhar (Kotwali),
Cr.A. No.74/2012
District Dhar, against the appellant and co-accused persons for the
offences punishable under Sections 147, 148, 302/149 and
396/149 of IPC. I/O SI M.K. Dubey reached the place of
occurrence, prepared spot map (Exhibit-P/3) and seized the
slippers of the deceased and a .12 bore live cartridge, found on the
spot, as per seizure memo (Exhibit-P/12). He called the witnesses
issuing Safina Form (Exhibit-P/31), prepared Naksha
Panchayatnama (Exhibit-P/32-A) of the body of the deceased and
seized two .12 bore cartridges and a purse from the pocket of the
pant of the deceased, as per seizure memo (Exhibit-P/34). Vide
application/postmortem report (Exhibit-P/17), sent the body of the
deceased to Bhoj District Hospital, Dhar for postmortem
examination, where Dr K.C. Shukla conducted the postmortem of
the body of the deceased and found antemortem injuries, caused
by hard, sharp and penetrating object, on his chest and other vital
parts of the body. He prepared postmortem report (Exhibit-P/17)
and opined that the cause of death of the deceased was shock due
to injuries to vital organs i.e. lungs, liver and stomach and
excessive internal hemorrhage.
(iii) On the next day i.e. on 06.07.2009, S.I. Amar Singh
arrested the appellant and co-accused persons vide arrest memos
(Exhibit-P/18 to P/21). I/O SHO D.V.S. Chauhan recorded
appellant's disclosure statement (Exhibit-P/22), on the basis of
which on his instance seized a blood stained gupti (Article-A) as
per seizure memo (Exhibit-P/23) from the house of Raju and
appellant's blood stained T-shirt and bermuda (Article-G & H) as
Cr.A. No.74/2012
per seizure memo (Exhibit-P/26) from his possession. Executive
Magistrate Sunil Kumar Davar conducted the identification
proceedings of the appellant and co-accused persons, as per
identification memo (Exhibit-P/4).
(iv) I/O D.V.S. Chauhan obtained C.D., containing video
clipping of CCTV camera installed in the hospital, and saw the
video recording on the monitor as per memo (Exhibit-P/27).
Thereafter, he seized the above C.D. (Article-C) as per seizure
memo (Exhibit-P/9) and CPU (Article-D) of the computer as per
seizure memo (Exhibit-P/8). He obtained the voice sample of the
appellant and sent the same alongwith C.D. (Article-C) and CPU
(Article-D) in sealed condition to the Central Forensic Science
Laboratory, Chandigarh, vide letter (Exhibit-P/40). He also sent
other seized articles to FSL, Rau vide letter (Exhibit-P/41).
Obtained the Examination Report (Exhibit-P/31) and FSL Report
(Exhibit-P/32) and thereafter, after completion of the
investigation, filed the charge-sheet against the appellant and co-
accused persons for the offences punishable under 147, 148,
302/149 and 396/149 of IPC and u/S 25(1-B)(B) of the Arms Act
before the Court of Chief Judicial Magistrate, Dhar, who
committed the case to the Court of Sessions Judge, Dhar.
3. Learned Trial Court considering the material prima-facie available
on record, framed the charges under Sections 148, 302, or in alternative
302 r/w 149 and 396, or in alternative 396 r/w 149 of IPC alongwith
25(1-B)(B) of the Arms Act against the appellant and co-accused
persons, who abjured their guilt and prayed for trial. In their statements
Cr.A. No.74/2012
recorded under Section 313 of Cr.P.C., they pleaded their false
implication in the matter. In support of their defense, they did not
examine any witness.
4. Learned Trial Court after appreciating the oral as well as
documentary evidence available on record, acquitted the co-accused
persons from all the charges and appellant from the charges u/S 148 and
396 r/w 149 of IPC alongwith 25(1-B)(B) of the Arms, but recorded the
findings of conviction against the appellant for the offence punishable
u/S 302 of IPC and sentenced him as mentioned in para-1 of this
judgement. Being aggrieved with the said judgement of conviction and
order of sentence, appellant has preferred this appeal for setting aside
the impugned judgement and discharging him from the aforesaid charge
framed against him.
5. Learned counsel for the appellant submits that the learned Trial
Court has committed a legal error while appreciating the evidence
available on record. The prosecution has failed to establish enmity
between the appellant and the deceased. Admittedly, the deceased was
assaulted outside the premises of Mittal Hospital. Prosecution evidence
is contradictory on the point as to where and from which weapon
deceased was assaulted. None of the prosecution witness saw the
appellant assaulting the deceased. All the eye witnesses namely, Deepak
Agrawal (PW-1), Dr. Tarun Joshi (PW-2), Sanjay (PW-5), Gopal Billore
(PW-6) and Vijay Verma (PW-8) have turned hostile and not supported
the prosecution case. Nothing was seized from the possession of the
appellant. C.D. (Article-C), containing video clipping of CCTV camera
installed in the hospital, was neither prepared in accordance with law
Cr.A. No.74/2012
nor was seized timely. Probability of manipulation in the C.D.(Article-
C) and CPU (Article-D) of the computer cannot be ruled out. Hence,
appeal filed by the appellant may be allowed and appellant be acquitted
from the charges alleged against him.
6. Per contra, learned Public Prosecutor for the respondent-State
while supporting the impugned judgement of conviction and order of
sentence submits that the judgement was passed by the Trial Court after
proper appreciation of evidence available on record. The same is well
reasoned establishing the guilt of the appellant beyond a reasonable
doubt. Therefore, confirming the impugned judgement of conviction
and order of sentence, the appeal filed by the appellant may be
dismissed.
7. We have heard learned counsel for the parties at length and
perused the record.
8. The prosecution case is based on direct as well as circumstantial
evidence and prosecution has examined in all 18 prosecution witnesses
including the complainant Deepak Agrawal (PW-1), Dr. Tarun Joshi
(PW-2), Sanjay (PW-5), Gopal Billore (PW-6) and Vijay Verma (PW-8)
as eye-witnesses. The other material witnesses are, Dr. Deepak Nahar
(PW-3), Dr. Umesh Mittal (PW-4), Dr. Madhusudan Agnihotri (PW-7)
and Dr. Nandkishore Batham (PW-9), who came on the spot just after
the incident, Dr. K. C. Shukla (PW-10), who conducted the postmortem
of the body of the deceased Kalyan Singh @ Kallu and prepared
postmortem report (Exhibit-P/17), Vinod Mittal (PW-11), who has
shown the video recording of the footage of CCTV camera, installed in
the hospital, as per memo (Exhibit-P/27) and Executive
Cr.A. No.74/2012
Magistrate/Tehsildar Sunil Kumar Davar (PW-12), who conducted the
test identification parade, as per identification memo (Exhibit-P/4), ASI
O. P. Shrivastava (PW-15), who lodged the dehati nalishi report
(Exhibit-P/1) and SI D.V.S. Chouhan (PW-17) and SI M. K. Dubey
(PW-18), who investigated the case.
9. From the statements of the complainant Deepak Agrawal (PW-1),
Dr. Tarun Joshi (PW-2), Dr. Deepak Nahar (PW-3), Dr. Umesh Mittal
(PW-4), Sanjay (PW-5), Dr. Madhusudan Agnihotri (PW-7), Dr.
Nandkishore Batham (PW-9) and Vinod Mittal (PW-11), this fact seems
undisputed that in the intervening night of 04-05.07.2009, at the time of
incident i.e. 12.00-12.30 AM, deceased Kalyan Singh @ Kallu was
present at the gate of Mittal Hospital, as a security guard. This fact also
seems undisputed that in the intervening night of 04-05.07.2009, in
between 12.00-12.30 AM, a quarrel took place between doctor of the
hospital and some outsiders and when deceased Kalyan Singh @ Kallu,
being security/security guard, intercepted, the assailants took the
deceased out of the hospital and assaulted him, due to which he
sustained grievous injuries on his chest and other vital part of his body
and thereafter he died.
10. S.I. M. K. Dubey (PW-18) deposed that on the date of incident,
after getting the case diary of the case, he went to the spot, prepared spot
map (Exhibit-P/3), seized deceased's slippers and a .12 bore live
cartridge from the spot as per seizure memo (Exhibit-P/12) and
thereafter, called the witnesses issuing Safina Form (Exhibit-P/31),
prepared the inquest report (Exhibit-P/32-A) of the body of the deceased
and vide letter (Exhibit-P/17) sent the same to the District Hospital for
Cr.A. No.74/2012
postmortem examination.
11. Dr. K.C. Shukla (PW-10) deposed that on the same day at about
10.15 AM, he conducted the postmortem of the body of the deceased
and found two penetrating incised wounds present on right anti lateral
aspect of chest wall at the level of 7 th to 9th thoracic ribs. Both wounds
are obliquely directed over and above each other. Upper wound at the
level of 7th to 8th rib and intercostal area spindle shaped with everted
margins and smooth edge, measuring 1.5" x 1" x pierces the chest wall
and plural cavity. Lower wound below the upper wound, anteriorly to
the level of 8th and 9th ribs and intercostal space with everted margins
and smooth edge, measuring 1" x 0.5" x pierces into abdominal cavity.
One lacerated wound on fronto parietal area of skull left side measuring
2cm x 1.5cm x scalp deep. He deposed that all the injuries were
antemortem and were caused by hard, sharp and penetrating object. He
deposed that he prepared postmortem report (Exhibit-P/17) and opined
that the cause of death of the deceased was shock due to injuries to vital
organs i.e. lungs, liver and stomach and excessive internal hemorrhage.
12. Since appellant has not seriously challenged the fact that on the
date of incident after about 15 minutes of the initial quarrel, assailants
entered into the hospital, took the deceased out of the hospital and
thereafter, assaulted him and also the fact that the injuries found on the
body of the deceased were caused by hard and sharp object, therefore,
considering the number and nature of the injuries found on vital part of
the body of the deceased, as mentioned in the postmortem report
(Exhibit-P/17), prepared by Dr K.C. Shukla, there remains no doubt that
the assailants came on the spot with arms and after taking the deceased
Cr.A. No.74/2012
out of the hospital caused aforesaid injuries to him in a planned manner,
and committed his murder.
13. So far as the issue whether the injuries found on the body of the
deceased were caused by the appellant is concerned, owner of Mittal
Hospital, Dr. Umesh Mittal (PW-4) deposed that he knew the appellant
prior to the incident. He in para-29 of his cross-examination specifically
deposed the he knew the appellant for last 2-1/2 years. Dr. Madhusudan
Agnihotri (PW-7) also deposed that he knew the appellant. He deposed
that two days prior to the incident, a child was brought to Mittal
Hospital by his parents and appellant also accompanied them. He
deposed that the condition of the child was serious therefore, he sent
him directly to the ICU. At that time, Dr. Nandkishore Batham, who
was a child specialist informed him that appellant alongwith others were
brawling. He deposed that as the condition of the child was serious
therefore, he referred him to Indore.
14. The complainant Deepak Agrawal (PW-1) deposed that on the
date of incident, at about 12.00 AM, appellant came into the hospital and
asked for Dr. Agnihotri and when he was told that Dr. Agnihotri is not
available on duty and Dr. Tarun Joshi is available on duty, he asked to
call him. He deposed that when Dr. Tarun Joshi came, then a heat of
argument took place between the appellant and Dr. Tarun Joshi. Dr.
Tarun Joshi (PW-2) also deposed that he knew the appellant and on the
date of incident, at about 12.00 AM, when he went to meet the appellant,
he started abusing him. From the statements of the aforesaid witnesses,
it is apparent that appellant was known to them prior to the incident. The
appellant has although challenged the aforesaid fact but during cross-
Cr.A. No.74/2012
examination of Dr. Umesh Mittal (PW-4), it was suggested on behalf of
the appellant himself that appellant being a social worker had opposed
the hospital management when dead body of a person, who had died due
to wrong treatment by the doctors of the hospital, was not being given
for non-payment of bill amount. In view of the aforesaid suggestion
given on behalf of the appellant, there remains no doubt that he was
very well known to the doctors and employees of the hospital.
15. The complainant Deepak Agrawal (PW-1) deposed that on the
date of incident, after sometime of the initial quarrel between the
appellant and Dr. Tarun Joshi, appellant again came into the hospital
alongwith 5-6 other persons and when the security guard deceased
Kalyan Singh @ Kallu intercepted them, then they caught hold his
hands and dragged him out of the hospital. Dr. Tarun Joshi (PW-2)
deposed that after the initial quarrel between him and the appellant,
some people came to the hospital and dragged the deceased, who was
standing at the main gate of the hospital. He although denied to identify
any of the assailants, who took the deceased out of the hospital but it is
apparent from his statement that he has been won over by the appellant,
therefore, his above denial cannot be said to be fatal for the prosecution.
In this regard reliance can be placed upon the judgement passed by the
Apex Court in the case of Khujji vs. State of M.P., (1991) 3 SCC 627 .
16. The other eye-witnesses Sanjay (PW-5) and Gopal Billore (PW-6)
have not supported the prosecution case and have turned hostile, but
from the statements of the complainant Deepak Agrawal (PW-1) and Dr.
Tarun Joshi (PW-2), this fact is established that about 15-20 minutes,
prior to the incident, appellant had come into the hospital and at that
Cr.A. No.74/2012
time a quarrel took place between him and Dr. Tarun Joshi. This fact is
also established that after the aforesaid quarrel, appellant again came
into the hospital alongwith other persons and when security guard
deceased Kalyan Singh @ Kallu intercepted, then they forcibly dragged
him out of the hospital. This fact also finds support from the dehati
nalishi (Exhibit-P/1), lodged by ASI O.P. Shrivastava (PW-15), who
deposed that when he received an information on his wireless set that
some people are fighting with knives in Mittal Hospital and reached
Mittal Hospital, then he immediately, just after the incident recorded
dehati nalisi (Exhibit-P/1), on the basis of an oral complaint made by
the complainant Deepak Agrawal (PW-1). The complainant admitted the
aforesaid fact that when police came to the hospital, his statements were
recorded and he made the report (Exhibit-P/1). It is very specifically
written therein that after the initial quarrel, appellant alongwith other
persons again came to the hospital and ran towards Dr. Tarun Joshi to
assault him and when the security guard deceased Kalyan Singh @
Kallu intercepted, appellant alongwith other persons dragged him out of
the hospital.
17. The aforesaid fact also finds support from the statement of Vinod
Mittal (PW-11), who deposed that after the incident, he had shown the
recording of the CCTV camera to the police as per memo (Exhibit-
P/27), wherein appellant was seen at the time of incident alongwith
other persons dragging the deceased. He during his cross-examination
had inserted the CD (Article-C) of the recording of CCTV camera
installed in the hospital, into the CPU (Article-D), and shown the
recording and identified the appellant as one of the assailants, who came
Cr.A. No.74/2012
on the spot at the time of incident and forcibly took the deceased out of
the hospital. In these circumstances, learned Trial Court has not
committed any error in finding this fact as proved that at the time of
incident, appellant alongwith other persons came into the hospital and
dragged the deceased out of the hospital.
18. During the course of arguments, authenticity and genuineness of
the CD (Article-C) and CPU (Article-D) has been challenged, but it is
apparent from the examination report (Exhibit-P/40), received from the
Central Forensic Science Laboratory, Chandigarh that above CD
(Article-C) and CPU (Article-D) alongwith other CDs were received
there in sealed condition and the same was found continuous and no
alteration was detected in any of the video and CCTV files therefore,
arguments raised about the manipulation in the CD (Article-C) and CPU
(Article-D) are not acceptable at all.
19. From the statements of the complainant Deepak Agrawal (PW-1),
Dr. Tarun Joshi (PW-2) and Dr. Deepak Nahar (PW-3), it is apparent that
just after the aforesaid incident, body of the deceased Kalyan Singh @
Kallu was found outside the hospital, as shown in the spot-map
(Exhibit-P/3). The deceased Kalyan Singh @ Kallu was assaulted and
found dead within few minutes just after he was taken by the appellant
alongwith other persons, is sufficient to draw inference that he was
assaulted by none other than the appellant. This fact also finds support
from the statement of I/O D.V.S. Chouhan (PW-17), who deposed that
after the arrest of the appellant, he recorded his disclosure statement
(Exhibit-P/22), wherein he disclosed about the weapon gupti (Article-A)
used in the crime. He deposed that on the basis of appellant's above
Cr.A. No.74/2012
disclosure statement, on his instance, seized the blood stained gupti
(Article-A) from the house of Raju.
20. Vinod Mittal (PW-11) has support his aforesaid statement. FSL
report (Exhibit-P/32) reveals that human blood was found on the
weapon gupti (Article-A) as well on the T-shirt (Article-G), worn by the
appellant at the time of incident. Since the presence of the appellant was
very well proved at the time of incident and it has also been found
established that he alongwith other persons dragged the deceased out of
the hospital and thereafter, human blood was found on his T-shirt
(Article-G) as well as on the weapon gupti (Article-A), seized on his
instance and he had nowhere explained as to how the aforesaid articles
were stained with human blood, therefore, learned Trial Court has
rightly found the involvement of the appellant in the crime. In this
regard judgement passed by the Apex Court in the case of John
Pandian vs. State (2010) 14 SCC 129 can be relied upon.
21. In view of the aforesaid discussions, learned Trial Court has not
committed any error in finding this fact proved beyond reasonable doubt
that the appellant has committed the murder of the deceased Kalyan
Singh @ Kallu therefore, in our considered opinion, there is no
illegality, perversity and arbitrariness in the finding recorded by the
learned Trial Court while convicting the appellant for the offence
punishable under Section 302 of IPC, hence the impugned judgement of
conviction and order of sentence dated 20.10.2011 passed by the learned
Trial Court is liable to be affirmed and is hereby affirmed. Accordingly,
the present appeal filed on behalf of the appellant is hereby dismissed.
22. The Registry is directed to send back the Trial Court record
Cr.A. No.74/2012
forthwith alongwith the copy of this judgment.
Certified copy as per rules.
(SUBODH ABHYANKAR) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
gp
GEETA
Digitally signed by GEETA PRAMOD
DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH INDORE,
ou=HIGH COURT OF MADHYA PRADESH BENCH INDORE,
postalCode=452001, st=Madhya Pradesh,
2.5.4.20=1dc3d93a178bbacd0e9485f9f6e99335499bddb32501850a49
PRAMOD
84b5b63f6d7a38,
pseudonym=12F09B7BC77D4D3D96B764E8FA34B6FE3874D434,
serialNumber=41554F8E701AEEB833278B4FDD900CBED72CCF299EA
61E33BBE6175289BA0390, cn=GEETA PRAMOD
Date: 2022.12.21 13:12:39 +05'30'
