Madhya Pradesh High Court
Vijay @ Mamu vs The State Of Madhya Pradesh on 8 February, 2022
Author: Vivek Rusia
1
Cr.Appeal No.98 of 2013
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
Cr.Appeal No.98/2013
Vijay @ Mamu S/o Ramchandra Balai
Age 45 Years
R/o Indra Nagar,
Police Station Palaisa, Distt. Indore
Vs.
State of Madhya Pradesh
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Ms. Sharmila Sharma, learned counsel for the appellant.
Shri A.S. Sisodiya, learned Govt. Advocate, for the
respondent/State.
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Reserved on: 09.12.2021
JUDGMENT
(Delivered on 08.02.2022)
Satyendra Kumar Singh, J.,
Appellant has preferred this appeal under Section 374(2) of
the Code of Criminal Procedure, 1973(2 of 1974) [in short
Cr.P.C.] being aggrieved by the judgment dated 25.09.2012
passed by the Court of Addl.Sessions Judge, Indore in S.T.No
87/2009, whereby the appellant has been convicted under Section
302 r/W 34 of Indian Penal Code, 1860 (hereinafter called IPC)
and sentenced to undergo life imprisonment and fine of Rs.
1000/- each and in default of payment of fine, additional rigorous
imprisonment for three months.
2. The prosecution case in brief is as follows:
(i) on 09.09.2008 at about 22:15 PM, when complainant -
Cr.Appeal No.98 of 2013
Ritesh Sharma was standing in the balcony of his house situated at
Manoramaganj, Indore, he saw appellant -Vijay alongwith
delinquent juvenile - Lakhan having knife in their hands were
chasing deceased - Paras. They caught hold him near nala and
assaulted him with knife on his chest and other vital part of his
body and caused grievous injuries to him, due to which he fell
down. On 10.09.2008 at about 9:20 AM, one- Manish informed
the Police about his death on which Marg Intimation Report (Ex.
P-17) was registered at Police Station - Palasia, Indore.
(ii) SI - Yaswant Rao Gaikwad immediately rushed to the spot
and got identified the dead body of the deceased from his father
Ashok as per Identification memo (Ex.P-4) whereby he identified
the dead body as of his son- Paras. In the meantime at about 09:30
AM, complainant- Ritesh Sharma, after seeing dead body of the
deceased went to the Police Station Palasia and lodged the FIR
(Ex. P-7). I/O- Yaswant Rao Gaikwad prepared spot map (Ex. P-
19) and seized plane soil and blood soaked soil from the spot as
per seizure memo (Ex. P-5). He called the witnesses issuing safina
form (Ex. P-2) and prepared Naksha Panchayatnama (Ex.P-1) of
the dead body of the deceased. Prima facie, the reason for death
was found to be injuries on his person, therefore, the dead body
was sent to MY Hospital, Indore for post mortem examination
vide letter dated (Ex. P-23).
(iii) On the same day, at about 01:40 PM, Dr.Murli Lalwani
conducted autopsy of the dead body of the deceased - Paras at MY
Hospital, Indore and found stab wound / incised stab wound on
Cr.Appeal No.98 of 2013
right side of deceased's chest alongwith abrasions on his chin and
shoulder as per post-mortem report (Ex.P-23).
Dr. Murli Lalwani prepared Post-Mortem report (Ex. P-23).
He opined that stab wound / incised stab wounds found on the
body of the deceased were caused by hard, sharp and penetrating
object while abrasions were caused by hard and blunt object. He
further opined that deceased died due to hemorrhage and shock
within 24 hours from the time of post-mortem, as a result of
multiple stab injuries to the chest which leads to injuries to the
visceral organs of chest and abdomen and his death was
homicidal.
(iv) I/O - Yaswant Rao Gaikwad recorded the statements of the
prosecution witnesses and arrested appellant - Vijay vide Arrest
Memo (Ex. P-12), recorded his memorandum statement (Ex.P-13)
and on his instance, seized knife as per Seizure Memo (Ex.P-14)
and blood stained clothes wore by him at the time of incident as
per Seizure Memo (Ex.P-15). After completion of investigation,
filed the charge sheet before the Court of Additional Chief Judicial
Magistrate, Indore who committed the case to the Court of
Sessions Judge, Indore. The Sessions Judge made over the case for
trial to the Court of Additional Sessions Judge, Indore.
3. Learned trial Court considering the material prima-facie
available on record framed charges u/S 302, in alternate 302 r/W
34 of IPC and Section 25 (1B) (b) of the Arms Act against the
appellant who abjured guilt and prayed for trial. In his statement
recorded u/S 313 of Cr.P.C., he pleaded his false implication in the
Cr.Appeal No.98 of 2013
matter and has examined Chetu Singh (DW-1)- Head Constable,
Police Station- Palasia, Indore in his defence and also exhibited
three FIRs (Ex. D-8 to D-10) showing his prior enmity with the
deceased as well as with the proseuction witness.
4. Learned trial Court after appreciating the oral as well as
documentary evidence available on record, acquitted the appellant
from the charges for the offence punishable u/S 25(1B)(b) of the
Arms Act but recorded findings that prosecution proved his case
beyond reasonable doubt against the appellant for the offence
punishable under Section 302 r/W 34 of IPC and sentenced him as
stated in para 1 of the judgment. Being aggrieved by the said
judgment of conviction and order of sentence, appellant has
preferred this appeal for setting aside the impugned judgment and
discharging him from the charges framed against him.
5. Learned counsel for the appellant submits that learned trial
Court has committed legal error while appreciating the evidence
available on record. Prosecution Witness Chintu @ Premnarayan
(PW-6) has denied the fact that he was with deceased at the time
of incident. Sonu @ Rajesh (PW-1) and Hemant @ Chati (PW-9)
are hearsay witnesses. Complainat -Ritesh Sharma (PW-3) and
Atul (PW-4) have turned hostile and not supported the prosecution
story. Lalit (PW-8), Virendra (PW-10) and Surendra Borasi (PW-
13) are chance witnesses and their statements are inconsistent with
their earlier statements recorded under Section 161 of Cr.P.C. on
material issues and also with the statement of I/O - Y.R. Gaikwad
(PW-15) on the point of time and date of recording of their earlier
Cr.Appeal No.98 of 2013
statements due to which their presence on the spot at the time of
incident is not proved. Seized weapon; knife has not been fount to
be used in the crime as Dr. Murli Lalwani (PW-17) has stated and
mentioned in his query report (Ex.P-21) that injuries found on the
body of the deceased could not be caused by the aforesaid weapon.
Therefore, on the basis of aforesaid evidence, appellant cannot be
held guilty and findings with regard to involvement of the
appellant in the crime is not sustainable. Thus, impugned
judgment of conviction and order of sentence deserves to be set
aside and appellant may be acquitted from the charges framed
against him.
6. Per contra, learned counsel for the respondent/State while
supporting the impugned judgment of conviction and order of
sentence submits that judgment so passed by the trial Court is
based on proper appreciation of evidence available on record.
Although, some of the important eye witnesses have not supported
the prosecution story and have turned hostile but Lalit (PW-8),
Virendra (PW-10) and Surendra Borasi (PW-13) have fully
supported the prosecution story. Lalit's presence on the spot at the
time of incident finds support from the FIR (Ex.P-7) wherein his
presence near the spot is specifically mentioned. Statements under
Section 161 Cr.P.C. of Virdendra (PW-10) and Surendra Borasi
(PW-13) were recorded on the same day i.e. 10.09.2008, when
dead body of the deceased was found. Their presence on the spot
at the time of incident is very well proved, therefore, their
statements with regard to the incident cannot be doubted.
Cr.Appeal No.98 of 2013
Prosecution has proved its case beyond reasonable doubt,
therefore, confirming the judgment of conviction and order of
sentence, the appeal filed by the appellant deserves to be
dismissed.
7. We have heard the parties at length and perused the record.
8. Prosecution witness Manish (PW-7) deposed that on
10.09.2008, when he saw the dead body of the deceased adjacent
to nala near Desi Kalari, Palasia, he informed the Police Station -
Palasia and on his report Marg intimation bearing No.47/2008
under Section 174 of Cr.P.C. (Ex.P-17) was registered. I/O Y.R.
Gaikwad (PW-15), deposed that on 10.09.2008 at about 9:00 AM,
after receiving the aforesaid information, he rushed to the spot,
prepared spot map (Ex.P/19), got identified the dead body of the
deceased from his father Ashok (PW-2), who supported his above
statements and stated that he saw and identified the dead body of
his son - Paras as per identification memo (Ex.P-4). I/o -
Y.R.Gaikwad (PW-15) deposed that he called the witness and
prepared Naksha Panchayatnama (Ex.P-1) of the dead body of
deceased as per (Ex.P-1) and sent the same for postmortem
examination to MY Hospital, Indore.
9. Dr. Murli Lalwani (PW-17) deposed that on the same day at
about 11.35 AM, he conducted the autopsy of the body of the
deceased and prepared post-mortem report (Ex.P-23) wherein he
found following injuries on his body:-
(a) on right side chest a stab wound measuring
2.8x0.5 cm, horizontal medial angle narrow, lateral
Cr.Appeal No.98 of 2013
angle broad, depth 13.05 cm, direction anteroposterior
from above downward. It has pierced the second inter-
coastal space and punctured the middle lobe of right
lung.
(b) incised stab wound present on right side
chest just above clavicle and 1.8 cm above the the
injury no.1, measuring 1.2x 0.2 cm horizontal with
lateral end narrow medial angle broad, it is 9 cm deep.
It has punctured the upper lobe of right lung.
(c) incised stab wound present on right side of
chest at mid of fourth inter-coastal space level, size 2.8
x 0.6 cm obliquely horizontal with medial end lower
and narrow, lateral angle upper and broad. It is 12 cm
deep. It has pierced the 4th inter-coastal space and
perforated the diaphragm and it has punctured liver on
superior aspect right lobe.
(d) Abrasion present on lower aspect of chin
right side measuring 2.5 x 0.6 cm oblique.
(e) Abrasion on left side chin measuring 3.1 x
0.6 cm interrupted reddish brown.
(f) Abrasion on posterior aspect of right
shoulder measuring 2 x 1.5 cm irregular.
10. Dr. Murli Lalwani (PW-17) further deposed that injuries (a)
to (c) found on the body of the deceased were caused by hard,
sharp and penetrating object while injuries (d) to (f) were caused
by hard and blunt object. He further deposed that deceased died
Cr.Appeal No.98 of 2013
within 24 hours from the time of post-mortem due to hemorrhage
and shock, as a result of multiple stab injuries to the chest which
leads to injuries to the visceral organs of chest and abdomen and
his death was homicidal.
11. Appellant has not challenged the aforesaid fact, therefore,
this fact is not disputed that on the date of incident, deceased was
assaulted by hard, sharp and penetrating object due to which he
sustained grievous injuries on the vital part; chest and abdomen of
his body as a result of which he died and his death was homicidal.
12. So far as the issue whether the aforesaid injuries were
caused by the appellant with an intent to commit his murder is
concerned, prosecution case is mainly based on direct evidence.
As per prosecution case, on the date of incident, deceased
was consuming liquor alongwith Sonu @ Rajesh (PW-1), Chintu
@ Premnarayan (PW-6), Hemant @ Chati (PW-9) and one-
Ramlakhan at Desi Kalari, Palasi. At that time, Ramlakhan got
angry and went from that place, thereafter, deceased alongwith
Chintu (PW-6) went towards Ramlakhan's house and they were
standing near Durgamata Mandir. Appellant alongwith delinquent
juvenile Lakhan came there and following heated exchanges, they
assaulted each other. Deceased ran away towards Palasia while
Chintu @ Premnarayan (PW-6) ran away towards Badi Gwaltoli.
Complainant- Ritesh (PW-3), Atul (PW-4) and Lalit (PW-8) saw
the appellant alongwith delinquent juvenile chasing deceased and
assaulting him with knife. Virendra (PW-10), Surendra Borasi
(PW-13) and Sunny Singh Ranwat (PW-16) also witness the
Cr.Appeal No.98 of 2013
incident from Desi Kalari, Palasia which is near to the place of the
incident. In this regard, prosecution has examined; Sonu @ Rajesh
(PW-1), Chintu @ Premnarayan (PW-6), Hemant (PW-9, Ritesh
(PW-3), Atul (PW-4), Lalit (PW-8), Virendra (PW-10), Surender
(PW-13) and Sunny Singh (PW-16).
13. Sonu @ Rajesh (PW-1) and Hemant @ Chati (PW-9) have
supported the prosecution story but they are hearsay witnesses and
deposed that Chintu told them about the incident while Chintu
(PW-6) has denied the aforesaid fact and has turned hostile. He
has not supported the prosecution story at all. Therefore,
statements of Sonu @ Rajesh (PW-1) and Hemant @ Chati (PW-
9) are of no relevance.
14. Complainant- Ritesh Sharma (PW-3) and Atul (PW-4) have
also tuned hostile and not supported the prosecution story while
Lalit (PW-8) has supported the prosecution story and deposed that
at the time of incident when he was standing alongwith Atul near
the house of the Ritesh Sharma which is situated near Desi Kalari,
Palasia, he saw appellant alongwith one other person chasing the
deceased and caught hold him near nala and thereafter, assaulted
him with knife. His presence on the spot has been challenged by
the appellant on the ground that his statement under Section 161
Cr.P.C. were recorded after about two month of the incident
without any reasonable cause and also on the ground that his
statements are inconsistent with his earlier statement recorded
under Section 161 Cr.P.C. (Ex.D-1) with regard to the identity of
the appellant, place where he saw the deceased and appellant at
Cr.Appeal No.98 of 2013
time of incident and on other material issues.
15. In this regard, statements of I/O Y.R. Gaikwar (PW-15) are
relevant who in Para19 of his cross-examination has admitted that
he recorded the statement of Lalit on 05.11.2008 i.e. about after
two month of the incident. He also admitted that reason of delay in
recording the statement of the aforesaid witnesses is not
mentioned in the case diary. From his statements, it is also
apparent that statements of Lalit recorded before trial Court are
not consistent with his earlier statements (Ex.D-1) recorded under
Section 161 of Cr.P.C. on the point of identification of the
appellant and place where he saw the deceased and the appellant.
Lalit (PW-8) deposed in his examination-in-chief that he saw the
appellant alongwith one other person chasing the deceased, but in
Para 7 and 8 of his cross-examination, he admitted that at the time
of incident, he saw the appellant first time and before that he did
not know him by face or by his name. He specifically denied the
fact that in his earlier statement (Ex.D-1), he mentioned the name
of the appellant. He admitted that he still does not know his name
or the name of the person who was with him at the time of
incident. He further stated that in his earlier statement (Ex.D-1)
recorded under Section 161 Cr.P.C., he only mentioned the
features of the appellant, instead of his name. He further deposed
that at the time of incident, deceased and appellant were coming
from the Desi Kalari, Palasia while in his earlier statement (Ex.D-
1) recorded under Section 161 Cr.P.C., it is specifically mentioned
that deceased was coming from road side towards Desi Kalari and
Cr.Appeal No.98 of 2013
appellant alongwith other person were chasing him.
16. As the statements of Lalit (PW-8) are inconsistent with his
earlier statements recorded under Section 161 Cr.P.C. on above
material issues and no reasonable explanation has been shown to
record his statements under Section 161 Cr.P.C. after about two
months of the incident, which is a serious infirmity to destroy the
credibility of the evidence of this witness as held by Hon'ble the
Apex Court in the case of State of Orissa Vs. Brahmannad
reported in AIR 1976 SC 2488. Hence, without any corroboration
of any other evidence only on the basis of his aforesaid statement,
no conclusive inference can be drawn against the appellant.
17. Virendra (PW-10) and Surendra Borasi (PW-13) are chance
witnesses. Virendra (PW-10) deposed that at the time of incident,
he went to Desi Kalari, Palasia for consuming liquor while
Surender Borasi (PW-13) deposed that at that time he went to Desi
Kalari to take liquor for his father. Presence of both these
witnesses on the spot at the time of incident, has also been
challenged by the appellant on the basis that they are interested
witnesses and their statements under Section 161 Cr.P.C. Ex.D-4
& D-5 respectively, were not recorded on 10.09.2008 as
mentioned therein and were anti-dated and are inconsistent to each
other as well as to their statements recorded under Section 161
Cr.P.C.
18. In this regard, statements of I/O Y.R. Gaikwad (PW-15) are
relevant. He deposed that he recorded the statements of both the
above witnesses on 10.09.2008 i.e. on the day when dead body of
Cr.Appeal No.98 of 2013
the deceased was found. He admitted in Para 24 of his cross-
examination that he did not record the statements of both theses
witnesses at the spot during Marg inquiry (i.e. in the morning) and
was unable to say as to when he recorded their statements during
investigation. Virendra (PW-10) in Para 4 of his cross-
examination has specifically stated that on the next day's evening,
he knew about the incident through news paper and after about 3-4
days of incident, police recorded his statements. Surendra (PW-13)
deposed that his statements (Ex.D-13) were recorded on the next
day of the incident at about 10:00 AM, while I/O- Y.R. Gaikwad
(PW-15), as mentioned above, did not state so and no date has
been mentioned by him on the statements (Ex.D-5) of Surendra.
19. Virendra (PW-10) and Surendra (PW-13) both have
admitted that they were resident of Badi Gwaltoli, Indore and a
liquor shop is also situated in Gwaltoli area near their residence.
They have not given any plausible explanation about the fact that
if there is a liquor shop near their residence, then why on the date
of incident, they went to the said liquor shop near the place of
incident. They have also not given any plausible explanation as to
why they did not report the matter on the date of incident i.e. on
09.09.2008 when they saw the appellant assaulting the deceased.
Their statements are inconsistent with their earlier statements
recorded under Section 161 Cr.P.C. Ex.D-4 & D-5 respectively,
with regard to their presence near the place of incident and other
material issues.
20. Virendra (PW-10) deposed that he went to liquor shop for
Cr.Appeal No.98 of 2013
consuming liquor but could not consume due to incident, while in
his statement recorded under Section 161 Cr.P.C. (Ex.D-4), it is
stated that he was returning to his house after consuming liquor
when he saw the incident. He in his statement recorded before the
Juvenile Justice Board, Indore (Ex.D-7) had denied to be a witness
of the incident and was totally turned hostile.
Surender Borasi (PW-13) in Para 10 of his cross-
examination deposed that when he was returning after purchase of
the liquor, he saw appellant, delinquent juvenile- Lakhan and two-
three other persons were chasing the deceased. He saw the
incident from the place in front of Ashok Tent House while in the
same para, he also deposed/admitted that from that place Kalari
was not visible, which is about 15-20 steps away from the place of
incident. His statements recorded before the Juvenile Justice
Board, Indore (Ex.D/6) were also contradictory to his statement
recorded before the trial Court. In the aforesaid circumstance,
presence of both the above witnesses on the spot at the time of
incident seems also doubtful.
21. Sonu @ Rajesh (PW-1) deposed that deceased- Paras and
his cousin- Hemant (PW-9) were close friends. He in Para 7 of his
cross-examination has admitted that they were in the group of
Virendra and Surendra, while appellant was close friend of one-
Vicky with whom quite often there used to be heated altercation.
Further, in Para 13 of his cross-examination, he admitted that the
dispute between elder brothers of Surendra and Vicky are going
on for a very long period. He again admitted that appellant is in
Cr.Appeal No.98 of 2013
the group of Vicky.
22. In this regard, the record called by the appellant relating to
crime Nos.929/2008, 286/2009 and 411/2007 from Poilce Station-
Palasia through Head Constable - Chetu Singh (DW-1) are also
relevant who deposed that FIR of Crime No.929/2008 (Ex.D-8)
for the offence punishable under Section 294, 323, 324 and 506 of
IPC was lodged by Vicky against Sonu (PW-1), Chintu (PW-6)
and Hemant (PW-9), FIR of Crime No.286/2008 (Ex.D-9) for the
offence punishable under Section 294, 323, 34 and 506 of IPC was
lodged by Chotu Borasi against Surendra (PW-13), Dinesh, Chotu
@ Virendra and FIR of Crime No.411/2007 (Ex.D-10) for the
offence punishable under Section 294, 323, 147 and 506 of IPC
was lodged by Lata w/o Shyamlal against Munna Borasi, Chotu @
Virendra Swami, Prasadi Master, Dinesh, Surendra, Chotu,
Surendra Silawat.
23. Virendra (PW-10) in Para 1 of his statement deposed that he
is the friend of Surendra Borasi, while in para 7 of his cross-
examination, he admitted that appellant is the friend of Vicky.
From the aforesaid evidence, it seems that there was prior
enmity between the prosecution witnesses namely; Virendra (PW-
10) and Surendra (PW-13) with one Vicky who is close friend of
appellant. Therefore, the possibility of making false statement by
Virendra (PW-10) and Surendra (PW-13) against the appellant
about the incident cannot be ruled out. Therefore, their presence
on the spot at the time of incident is becoming more doubtful.
Other prosecution witnesses namely; Manish (PW-7) and Sunny
Cr.Appeal No.98 of 2013
Singh (PW-16) have turned hostile and not supported the
prosecution story. Prosecution has not examined any other
witnesses who supported the prosecution story.
24. Circumstantial evidence produced on record i.e. seizure of
knife and clothes, on the instance of the appellant, from his
possession as per seizure memo Ex.P-14 & 15 are also of no
relevance as Dr. Murli Lalwani (PW-17) in his query report (Ex.P-
21) specifically stated that the injuries found on the body of the
deceased was not caused by the aforesaid seized knife. As per FSL
report, human blood stains were found on the seized clothes but
the specific blood group of the said blood stains has not been
mentioned. Therefore, only on the ground of seizure of blood
stained clothes, said to be seized after about 15-16 days of the
incident from the possession of the appellant, it cannot be inferred
that appellant was involved in the crime.
25. Therefore in the light of the aforesaid discussion, we have
no hesitation to hold that prosecution has failed to prove the guilt
against appellant beyond reasonable doubt. Hence, conviction of
the appellant cannot be upheld and the appeal filed by the
appellant deserves to be allowed. Accordingly, we pass the
following order:
(i) Criminal Appeal No.98/2013 filed by the appellant -
Vijay @ Mamu is allowed.
(ii) The judgment of conviction and order of sentence
dated 25.09.2012 passed in S.T. No.87/2009 by
which appellants have been convicted u/S 302 r/W 34
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of IPC and sentenced to undergo life imprisonment
with fine of Rs.1,000/- each is hereby set aside.
(iii) Appellant be set at liberty, if not required in
any other case.
(iv) Fine amount(if any) deposited by the appellant
be refunded to them.
The Registry is directed to send back the trial Court record
forthwith alongwith the copy of this judgment.
Certified copy as per rules.
(Vivek Rusia) (Satyendra Kumar Singh)
Judge Judge
08-02-2022 08-02-2022
vibha/-
VIBHA PACHORI
2022.02.09 16:42:27 +05'30'
