Madhya Pradesh High Court
Ravi Sahu vs The State Of Madhya Pradesh on 16 September, 2022
Author: Virender Singh
1
CRA No.90 of 2011
IN THE HIGH COURT OF MADHYA PRADESH AT
JABALPUR
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BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU &
HON'BLE SHRI JUSTICE VIRENDER SINGH
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CRIMINAL APPEAL No. 90 of 2011
Between:-
1. Ravi Sahu S/o Shri Hariram Sahu,
aged About 21 Years, Ward No.7 Santosh Nagar,
Mandi Deep, District Raisen (M.P.)
2. Golu @ Govind S/o Shri Hariram Sahu,
aged about 19 Years, R/o Ward No.7, Santosh Nagar,
Mandideep, District- Raisen (M.P.)
...Appellants
(BY SHRI M.K. LODHI - ADVOCATE)
AND
State of Madhya Pradesh, through SHO of
Police Station Mandideep Raisen (M.P.)
...Respondent
(BY SHRI ADITYA NARAYAN GUPTA -
PUBLIC PROSECUTOR)
Reserved on : 07.09.2022
Passed on : 16.09.2022
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JUDGMENT
Per Virender Singh, J.
Being aggrieved by judgment and order dated
31.12.2010 passed by First Additional Sessions Judge, Raisen
in Sessions Trial No.42/2010, the appellants have preferred
this appeal. They have been convicted under Section 302 of
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CRA No.90 of 2011
IPC and sentenced to undergo life imprisonment and to pay
fine of Rs.1000/- each and in default of payment of fine, to
suffer further R.I. for three months.
2. The appeal, so far as it relates to co-convict Rajesh Sahu,
initially arraigned as appellant No.1, has already abated
consequent to his death during pendency thereof.
3. As many as seven persons were prosecuted. The present
appellants and others accused namely Kallu, Jackie, Nandu @
Nandkishore and Arun were charged with the offences
punishable under Sections 147, 148 and 302/149 of IPC.
However, after trial, learned trial Court found the accused
namely Kallu, Jackie, Nandu @ Nandkishore and Arun not
guilty for the offences and they were acquitted of all charges.
The State has not challenged their acquittal.
4. The prosecution case may be summarized thus:
(i) On 10.10.2009 at about 10 p.m. co-accused
Rajesh and Lakhan came to the house of Ramvilas
(since deceased) in an inebriated condition and
started hurling filthy abuses at him. On being
asked not to do so, they scuffled with him and on
resistance, ran away towards their house, but came
back after a while along with Ravi Sahu, Golu
Sahu (present appellants), Kallu, Nandkishore,
Jackie, Ravi Yadav and Arun, all armed with
deadly weapons like sword, axe, iron rod and lathi
etc. Upon seeing them, the deceased started
running towards his Badi (kitchen garden).
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However, all the accused persons surrounded and
beat him with lethal weapons and caused him fatal
injuries. He fell down. Considering him dead, they
all fled away from the spot. His son Sagar (PW5)
rushed to the spot and found him ensanguined. He
approached the police and lodged an FIR
No.439/2009 under Sections 147, 148, 149 and
307 of IPC at Police Station Mandideep (Ex.P/24).
The injured was taken to the Mandideep Hospital.
He was referred to Hamidia Hospital where he was
declared brought dead. Consequent to his death,
Section 302 of IPC was added to the FIR.
(ii) During investigation, the police visited the
place of occurrence, arrested the accused,
recovered the weapon of assault and also recorded
the statements of the persons acquainted with the
facts of the case under Section 161 of CrPC.
(iii) After inquest proceedings, dead body of
Ramvilas was sent to Gandhi Medical College,
Bhopal for post-mortem. Dr. Ashok Sharma
conducted the autopsy. As many as 9 injuries
including 2 incised and 3 stab wounds were found
on the vital parts of the body. In his opinion Dr.
Sharma recorded that the death was caused due to
shock and hemorrhage as a result of multiple
injuries caused by hard, sharp and penetrating
objects. The injuries are sufficient to cause death
in the ordinary course of nature.
(iv) The police further conducted other formal
investigation and on completion thereof, filed the
charge-sheet against the appellants and co-accused
under Sections 147, 148, 302/149 of IPC. The case
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being exclusively triable by the Court of Sessions,
the accused were committed for trial to the
Sessions Court, Raisen, and accordingly Sessions
Case No.42/2010 was registered.
(v) The charges under Section 147, 148,
302/149 of IPC were framed against all the
accused charge-sheeted, which when read over and
explained to them, they denied and pleaded not
guilty and claimed to be tried. Hence the trial
commenced.
5. In order to bring home the guilt of the appellants, the
prosecution examined as many as 12 witnesses whereas
defence produced 4 witnesses in support thereof.
6. The ld. trial Court, after considering the evidence on
record, acquitted co-accused Kallu, Jackie, Arun and Nandu of
the charges under Sections 147, 148, 302/149 of IPC and also
the appellants under Sections 147 & 148 of IPC but convicted
the appellants under Section 302 of IPC and sentenced them as
mentioned hereinabove.
7. All the convicted persons preferred appeal before this
Court, however, during pendency thereof, appellant Rajesh
died and the appeal qua him (Rajesh) stood abated. Therefore,
this appeal is heard and is being decided qua the remaining
appellants viz. Ravi Sahu and Golu @ Govind Sahu.
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8. Being aggrieved with the aforesaid judgment of
conviction and order of sentence, the appellants have preferred
this appeal on the following grounds:
(i) The trial Court has erred in convicting the
appellants. Its judgment is incorrect, improper,
illegal and is bad in law as conclusions are based
on improper appreciation of evidence.
(ii) The entire case of the prosecution is based
on circumstantial evidence primarily on the basis
of seen the appellant last with the deceased but
factum of last seen is itself not proved.
(iii) The trial Court has ignored major
contradictions, omissions, discrepancies and
inconsistencies appeared in the statements of the
prosecution witnesses. All the prosecution
witnesses have mentioned different and contrary to
each other place of incident whereas the
Investigating Officer pointed out an altogether new
place of incident.
(iv) The trial Court has not properly appreciated
the fact that it was a black night when the incident
took place, there was a dark, and there was no
source of light; therefore, claim of the witnesses
that they had seen the incident is shrouded with
doubts.
(v) Since the witnesses are interested and close
relatives, their testimony cannot be accepted.
Complainant Sagar (PW5) is the son of deceased
Ramvilas. Sadhna (PW11) is the wife of Sagar.
Jyoti (PW9) and Vimlesh (PW8) are the daughter
and son-in-law of the deceased. Santosh (PW3) is
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his neighbour in whose house Jyoti was a tenant.
There is no independent witness to the incident.
(vi) The deceased was having criminal
antecedents so also his son Sagar.
(vii) The deceased has been murdered by some
unknown persons but due to previous animosity,
his son has implicated the appellants falsely.
(viii) The trial Court has failed to appreciate the
evidence of defence witnesses who have very
specifically stated on oath that at the time of the
incident, the appellants were with them at an
altogether different place and were not present on
the place of occurrence.
(ix) The trial Court has discarded the evidence of
defence witness for no justified reason.
(x) The prosecution case is based on
circumstantial evidence while it failed to establish
several circumstances and the chain of
circumstance also could not be completed,
therefore, the conclusions of the trial Court
holding the appellants guilty is contrary to the
record as well as the evidence produced by the
prosecution and, therefore, the appellants are
entitled to acquittal.
9. We have heard the counsel of both the parties at length
and perused the record.
10. The ld. counsel for the appellants made his submissions
already mentioned hereinabove as the ground for the appeal.
There is no need to reiterate them here.
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11. Referring to the statements of the witnesses and the
other evidence produced before the trial Court, the learned
Public Prosecutor has supported the impugned judgement.
12. Before this Court, the appellants have not contested
death of Ramvilas on the alleged date and time and that the
death was homicidal in nature which is otherwise proved by
the cogent evidence and the statements of Santosh (PW3),
Sagar (PW5), Vimlesh (PW8), Jyoti (PW9) and Sadhna
(PW11) and Dr. Ashok Sharma. In view whereof, we are not
dwelling deep into this aspect of the matter.
13. Sagar (PW5), the son of the deceased, has deposed
before the trial Court that on 10.10.2009 at about 9 p.m. he
was in the house, his father was sitting on a Chabutra (a raised
platform) situated outside of the house, accused Rajesh and
Lakhan came in a drunken state and abused him (deceased).
When they were asked not to do so, they quarreled with him
but thereafter, ran away towards their house. After about 5
minutes, they came back along with their companions namely
Ravi Sahu, Golu Sahu (appellants), Kallu, Nandkishore,
Jackie, Ravi Yadav and Arun. At that time Rajesh and Lakhan
were having rod, Ravi Sahu was having sword, Golu was
having axe and Ravi Yadav was carrying stick. They all
assaulted his father who, in his bid to save him, ran towards
his Badi (vegetable garden) but they chased & accosted him
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and started beating him together with the arms they were
carrying. They beat him mercilessly and caused him several
injuries all over his body. He (complainant) rushed to the spot
and made a call for help. Hearing his clamour, Santosh (PW3),
Jyoti (PW9), Vimlesh, Sadhna and Hariom rushed to the spot
and saw the incident. They all have been examined before the
trial Court and except Hariom (PW2), all have supported his
Sagar (PW5) statement. Their statements are further
corroborated by the documents prepared during the
investigation and proved during the trial.
14. The trial Court appreciated their statements and found
them trustworthy. It further considered other corroborative
evidence regarding recovery of arms from the possession of
the appellants based on their disclosure statements, opinion of
Dr. Ashok Sharma (PW7) that the injuries sustained by the
deceased may be caused by those arms, FSL report (Ex.P/33-
34) which confirmed blood stains on the recovered arms,
substantial similarities between the injuries sustained by the
deceased and the claim of the witnesses in respect thereof that
they were caused by the appellant, the statement of the
Investigating Officer Prakash Batham and the other police
officials who recorded the FIR, interrogated the appellants,
recovered arms from their possession and took other relevant
steps with regard to the investigation and found that all this
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evidence clearly indicates involvement of the appellants in the
alleged incident or that it was the appellants who beat the
deceased till his death.
15. We have carefully gone through the statements of the
aforesaid witnesses particularly the statement of the eye
witnesses namely Sagar (PW5), Vimlesh (PW8), Santosh
(PW3), Jyoti (PW9) and Sadhna (PW11) and find them
reliable. Their statements are otherwise also corroborated by
the evidence collected during investigation like; inspection of
spot, preparation of spot map, memo of corpse, post mortem
report, seizure of arms, opinion of Dr. Sharma that the injuries
sustained by the deceased may be caused by them, seizure of
stained and plain soil from the spot, seizure of clothes of the
deceased having corresponding cut marks to the injuries
sustained by him etc. and there is nothing on record to make
all this evidence suspicious.
16. The ld. counsel for the appellants invited our attention
towards statement of Hariom (PW2) and repeatedly
accentuated that this prosecution witness has deposed on oath
that immediately after the incident, he reached over the place
and found the deceased in a pool of blood, picked him up and
took to his house. During transit, the deceased did not say
anything before him as to who put him in this condition. He
specifically deposed that no one else except him was present
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on the spot at that time, therefore, statement of the other
prosecution witnesses who claimed to be present on the spot
are not reliable.
17. But this statement of Hariom is contrary to his police
statement recorded during investigation immediately after the
incident. He has been declared hostile. He has not come up
with any explanation as to why he did not disclose these facts
before the police when he was approached to get his statement
recorded. In such state, neither the witness nor his statement
remains trustworthy.
18. The law is well settled that statement of such a witness
who deposes before the Court contrary to his statement
recorded earlier and has been declared hostile by the party who
had called him, looses its evidentiary value. Such witness
cannot be relied upon until and unless he furnishes some
plausible explanation and as stated Hariom has not furnished
any such explanation; therefore, he is not a witness of trust.
(See: Bhagwan Singh vs State of Haryana (1976) 1 SCC
389, Koli Lakhmanbhai Chanabhai vs State of Gujarat,
(1999) 8 SCC 624, Devraj vs State of Chhattisgarh AlR
2016 SC 3498 and Vinod Kumar vs State of Punjab AIR
2015 SC 1206).
19. In the instant case, five eyewitnesses have clearly
depicted against the appellants describing their involvement in
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the crime and there is nothing on record which could shatter
their veracity. In such a situation, we are of the unhesitant view
that the statement of Hariom (PW2) does not dent the
prosecution version and the trial Court has rightly discarded
his statement finding him an untrustworthy witness.
20. It is averred that all the prime prosecution witnesses are
interested, partisan and tutored witnesses. The ld. counsel for
the appellant referred to para 11 & 20 of cross examination of
Santosh (PW3), para 5 & 6 of the statement of Sagar (PW5),
para 7 of the statement of his wife Sadhna (PW11) and para 10
of the statement of Vimilesh (PW10) wherein they all have
admitted that they have engaged a private counsel and had met
him before their statements recorded in the Court. It is argued
that this shows that they all are tutored witnesses. It also shows
their keenness in getting conviction of the appellants. The
learned counsel also referred to cross-examination of Sagar
and Sadhna who have admitted that the deceased as well as his
son Sagar both were having criminal antecedent. It is stressed
that cumulative effect of all these facts that all the eye
witnesses are close relative of the deceased, they are keen to
get conviction, they have engaged a private counsel and met
him before recording of their statements before the Court,
makes it explicit that the Court statements of these witnesses
are not beyond shadow of the doubts. The learned counsel
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further submitted that due to hostility, someone has killed the
deceased and taking advantage of the situation, due to old
rivalry, they have implicated the appellants.
21. In the backdrop of the contention of the learned counsel
for the appellants, we revisited the entire evidence carefully,
but still do not find ourselves convinced with view of the
learned counsel. Engaging a private counsel to assist the public
prosecutor is a right given to the victim by the law. A party
cannot be doubted for exercise of that statutory right until and
unless it is shown that some prejudice to the defence has been
caused or it has resulted in failure of justice. In the case in
hand, Sagar has unequivocally denied a suggestion put forth
by the learned counsel for the defence that before proceeding
to the Court for recording of his statement, his advocate had
tutored him and no such suggestion has been given to any of
the other witnesses. Therefore, they cannot be considered as
tutored witnesses. Since direct and cogent evidence is
available on record and there is nothing to reflect even a
remote possibility of assault by a person other than the
appellants, bad conduct of the deceased or any witnesses is not
a relevant fact and it does not make out a case in favour of the
appellants.
22. Absence of independent witness has also been taken as a
ground to discard the prosecution case. It is asserted that after
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hearing clamour of family members of the deceased many
other villagers gathered there; but none of them has been
examined by the prosecution, but the Hon'ble Apex Court has
observed time and again that non-examination of independent
witness is not a ground to doubt prosecution case, particularly,
when evidence of eyewitness is trustworthy. It has been
observed that in these days, civilized people are generally
insensitive to come forward to give any statement in respect of
any criminal offence. Unless it is inevitable, people normally
keep themselves away from the Court as they feel it distressing
and stressful. It is a normal phenomena. This handicap of the
investigating agency cannot be ignored and the entire case of
the prosecution cannot be derailed on the mere ground of
absence of independent witness as long as the evidence of the
eyewitness, though interested, is trustworthy. (See : Sadhu
Saran Singh vs State of U.P. AIR 2016 SC 1160). Here, we
can also refer to the decisions in State of Haryana vs Asha
Devi AlR 2015 SC 3189, Kulwinder Singh vs State of
Punjab AIR 2015 SC 2488 and Govt. of NCT of Delhi vs Sunil
(2001) 1 SCC 652.
23. In this regard, we would also like to refer to the
judgment in Dayal Singh vs State of Uttaranchal (2012) 8
SCC 263. Para 14 & 15 thereof reads thus:
"14. This Court has repeatedly held that an
eyewitness version cannot be discarded by the
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court merely on the ground that such eyewitness
happened to be a relation or friend of the deceased.
The concept of interested witness essentially must
carry with it the clement of unfairness and undue
intention to falsely implicate the accused. It is only
when these elements are present, and statement of
the witness is unworthy of credence that the court
would examine the possibility of discarding such
statements. But where the presence of the
eyewitness is proved to be natural and their
statements are nothing but truthful disclosure of
actual facts leading to the occurrence and the
occurrence itself, it will not be permissible for the
court to discard the statements of such related or
friendly witness.
15. The Court in Dharnidhar v. State of U.P.
(2010) 7 SCC 759 took the following view: (SCC
pp. 768-69, paras 12-13)
"12. There is no hard-and-fast rule that family
members can never be true witnesses to the
occurrence and that they will always depose falsely
before the court. It will always depend upon the facts
and circumstances of a given case. In Jayabalan v. UT
of Pondicherry [(2010) 1 SCC 199, this Court had
occasion to consider whether the evidence of
interested witnesses can be relied upon. The Court
took the view that a pedantic approach cannot be
applied while dealing with the evidence of an
interested witness. Such evidence cannot be ignored
or thrown out solely because it comes from a person
closely related to the victim. The Court held as under
(SCC p.213, paras 23-24)
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'23. We are of the considered view that the case where
the court is called upon to deal with the evidence of
the interested witnesses, the approach of the court,
while appreciating the evidence of such witnesses
must not be pedantic. The Court must be cautious in
appreciating and accepting the evidence given by the
interested witnesses but the court must not be
suspicious of such evidence. The primary endeavour
of the court must be to look for consistency. The
evidence of a witness cannot be ignored or thrown out
solely because it comes from the mouth of a person
who is closely related to the victim.
24. From a perusal of the record, we find that the
evidence of PWs 1 to 4 is clear and categorical in
reference to the frequent quarrels between the
deceased and the appellant. They have clearly and
consistently supported the prosecution version with
regard to the beating and the ill-treatment meted out
to the deceased by the appellant on several occasions
which compelled the deceased to leave the appellant's
house and take shelter in her parental house with an
intention to live there permanently PWs 1 to 4 have
unequivocally stated that the deceased feared threat
too her life from the appellant. The aforesaid version
narrated by the prosecution witnesses viz. PWs 1 to 4
also finds corroboration from the facts stated in the
complaint.'
13. Similar view was taken by this Court in Ram
Bharosey v State of U.P [AIR 1954 SC 704 : 1954 Cri
LJ 1755], where the Court stated the dictum of
law that a close relative of the deceased does not, per
se, become an interested witness. An interested
witness is one who is interested in securing the
conviction of a person out of vengeance or enmity or
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due to disputes and deposes before the court only with
that intention and not to further the cause of justice.
The law relating to appreciation of evidence of an
interested witness is well settled, according to which,
the version of an interested witness cannot be thrown
overboard, but has to be examined carefully before
accepting the same."
A similar view was taken by this Court in Mano
Dutt v. State of U.P. (2012) 4 SCC 79 and Satbir
Singh v. State of U.P. (2009) 13 SCC 790."
24. The plea of alibi taken by the appellants has been
discussed by the trial Court in Para 96 to 100 of the impugned
judgment and has been rightly discarded on the ground that no
such defence was taken during examination of the prosecution
witnesses. The appellants have not come with any explanation
of such a serious lapse on their part. The defence witnesses
have not disclosed as to why they did not come forward at the
initial stage of registration of the crime against the appellants
or as to why they waited till the end of the trial to reveal the
truth. It leaves no doubt to consider that its only an
afterthought defence and cannot be relied upon.
25. No other ground has been raised before us and the
ground raised could not convince us to the extent to doubt the
prosecution case. In the case at hand, the statement given by
Sagar (PW5), the son of the deceased, is fully corroborated
with the version of other eyewitnesses to the incident. The FIR
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was lodged by Sagar on the very same day of the alleged
incident. The incident is alleged to have taken place on
10.10.2009 at about 10 in the night. The deceased succumbed
to the injuries thus sustained. The treating Doctor also opined
that cause of death of deceased to be the shock and
hemorrhage as a result of multiple injuries caused by hard,
sharp and penetrating objects. On the basis of memorandum,
the deadly weapons were recovered from the possession of the
appellants.
26. In the above-mentioned facts and circumstances and on
the basis of appreciation and evaluation of evidence of
witnesses, the ld. trial court appears to have not committed any
error in rendering the judgment of conviction and sentence
while recording findings in correct perspective, which cannot
be termed either to be perverse or against the evidence
available on record.
27. On a careful consideration of the nature of dispute
between the parties, nature of crime, the circumstances under
which it has been committed, the arms used in commission of
the crime and other facts and circumstances of the case,
certainly this is not a rarest of rare case, which called for
capital punishment. So, the sentence part of the judgment also
does not need interference. Thus, this appeal being sans merits;
deserves to be dismissed.
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28. Ex-consequenti, the appeal fails and is hereby
dismissed. The impugned judgment and order dated
31.12.2010 passed by First Additional Sessions Judge, Raisen
in Sessions Trial No.42/2010 is hereby affirmed.
(Sheel Nagu) (Virender Singh)
JUDGE JUDGE
vinod
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