Sevajya vs The State Of Madhya Pradesh
2023 Latest Caselaw 6654 MP

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                                                      CRA No. 380/2012



  HIGH COURT OF MADHYA PRADESH : BENCH INDORE
                             BEFORE

           HON'BLE SHRI JUSTICE VIVEK RUSIA
                                &
           HON'BLE SHRI JUSTICE ANIL VERMA

              CRIMINAL APPEAL No. 380 of 2012

BETWEEN:-
SEVAJYA S/O GIDA BHIL, AGED ABOUT 50 YEARS, KARANPURA,
DUKARJHILA FALYA,DISTT. BARWANI (MADHYA PRADESH)
                                                  .....APPELLANT
(SHRI RAJESH YADAV, ADVOCATE ON BEHALF OF SHRI VIVEK
SINGH, COUNSEL FOR THE APPELLANT.)

AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE
STATION KHETIYA, DISTT.BARWANI (MADHYA PRADESH)
                                               .....RESPONDENTS
(SHRI BHUWAN DESHMUKH, LEARNED GOVT. ADVOCATE FOR
RESPONDENT/STATE)

Reserved on             :     12.04.2023.
Pronounced on           :     25.04.2023.

      This appeal having been heard and reserved for judgment,

coming on for pronouncement this day, Hon'ble SHRI JUSTICE

VIVEK RUSIA pronounced the following :

                            JUDGMENT

The appellant has filed this appeal against the judgment dated 24.1.2012 passed by learned 2nd Additional District Judge, Sendhwa, District Barwani in Sessions Trial No.120/2010 whereby he has been

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CRA No. 380/2012

convicted for the offence u/s. 302 of the IPC and sentenced to undergo life imprisonment and to pay a fine of Rs.1,000/- and in default of payment of the fine amount, to further undergo 6 months additional RI for murdering Vinod by means of an Axe on 30.5.2010.

The facts of the case in short are as under :

1- As per the prosecution story, on 30.5.2010 in the night near about at 11, Mangilal and his wife Sushila Bai were sleeping in their house and his mother Aati Bai was sleeping on Cot ('Khatiya') in the courtyard. His nephew Vinod S/o. Vishram was also sleeping on another Cot in the courtyard. Aati Bai shouted that Sevajya (present appellant) is assaulting Vinod by means of an Axe. On hearing the such call, Mangilal came out of the house and saw that appellant with an intention to kill is assaulting Vinod by Axe on his neck and face due to which he died. Mangilal intending to save Vinod moved towards him , appellant tried to assault him also. The incident was witnessed by his uncle and neighbourers Sakharam and Manoj. The appellant ran away with Axe. According to Mangilal, since there was no conveyance available in the night, therefore, he and his mother Aati Bai, Uncle Sakharam and Manoj went to the Police Station in the morning and lodged the report vide Exh. P/2 which was registered as Crime No.78/2010.

2- The investigation was set into motion, and it was carried out by Inspector B.L. Akole (P.W.13). Spot map was prepared vide Exh. P/3. For the preparation of Panchnama of the dead body. Safina Form was drawn vide Exh. P/4. In presence of the witnesses, Panchayatnama vide Exh. P/5 was prepared. Plain soil and blood-stained soil were collected from the place of incidence vide Exh. P/7. The appellant was arrested vide Exh. P/8. On disclosure by the appellant, the Axe, light

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yellow colour shirt and trousers were recovered and seized vide Exh. P/10. The seized articles were sent to FSL Rau, District Indore vide Exh. P/23 from where report vides Exh. P/25 was received. The dead body of Vinod was sent for autopsy which was done by Dr. Dongersingh Chouhan (P.W. 12) who gave the autopsy report vide Exh. P/21 and query report vide Exh. P/22. He found 8 injuries on the body of the deceased, out of which, 7 injuries are incised wounds caused by a sharp and blunt object. By way of internal examination, the left maxilla and zygomatic bone were found fractured. 2 ribs were also found fractured. As per the opinion given by Dr. Dongersingh Chouhan (P.W.12), Vinod died because of antemortem injuries within 24 hours.

3- After completion of the investigation charge-sheet was filed before the Judicial Magistrate, First Class and the trial was committed to the Court of Sessions on 21.8.2010 where S.T. No.120/2010 was registered. Charge u/s. 302 of the IPC was framed and it was read out to the appellant which he denied and pleaded for trial. The appellant took the defence that 20 years ago Vishram (father of the deceased Vinod) was killed by someone and the complainant party used to doubt on him, therefore, he has falsely been implicated in this case. In order to prove the charge, the prosecution examined 13 witnesses as P.W.1 to P.W.13 got exhibited 25 documents as Exh. P/1 to P/25. In defence, the appellant examined himself as D.W.1 and Mohan as D.W.2 and got exhibited statements of Mangilal and Sushila Bai respectively as Exh. D/1 and D/2.

4- After evaluating the evidence that came on record, learned Addl. Sessions Judge has convicted and sentenced the appellant, as stated first. Hence, the present appeal before this Court.

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5- Learned counsel appearing for the appellant submitted that the entire prosecution story has been believed by the learned trial Court relying on statements of Aati Bai (P.W.1) and Mangilal (P.W.2) and the rest of the independent witnesses did not support the case of the prosecution. The learned trial Court has failed to see that the incident took place at night and availability of light was not considered, therefore, the identification of the appellant in the dark night was not possible. It is further submitted by the learned counsel that the appellant has been named by Aati Bai (P.W.1) and Mangilal (P.W.2) as they used to doubt him because of the murder of Vishram, the father of the deceased by the appellant 20 years ago, which has been confirmed by Mamta - wife of Vinod in her deposition. Apart from that, no other connecting material/evidence has been collected by the prosecution. It is further submitted by the learned counsel that there is a delay in the lodging of the FIR. The prosecution has failed to establish the motive behind the murder of Vinod. Although human blood was found on the clothes of the appellant, it was inconclusive for grouping purposes. He, therefore, prays that the appeal be allowed, and the impugned judgment of conviction be set aside and the appellant be released. 6- On the other hand, the learned Government Advocate appearing for the respondent/State argued in support of the impugned judgment by submitting that there is no reason to doubt the testimony of Aati Bai (P.W.1) and Mangilal (P.W.2) who have not only witnessed the appellant assaulting the deceased Vinod by means of Axe but found him running from the spot with an Axe in his hand. There is no delay in lodging the FIR as the incident took

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place at the night and there were no means of transport. On the very next day in the morning at 7 the FIR was lodged. The human blood was found on the clothes of the appellant and for which he has not given any explanation. So far as the false implication is concerned, the appellant was never prosecuted for the murder of Vishram, the father of deceased Vinod. The dead body of Vishram has not been recovered till date. Therefore, no case for interference is made out and the appeal is liable to be dismissed.

After having heard the learned counsel for the parties, we have perused the record of the court below.

7- Dr. Donger Singh Chouhan (P.W.12) examined the dead body of the deceased Vinod on 31.5.2010 and opined that all the injuries are ante-mortem caused by a sharp and blunt object and the death is homicidal in nature. The doctor also gave the query report and according to which all the injuries could be caused by the seized Axe. This doctor witness has not been cross-examined by the appellant on the cause of death, nature of injuries, etc. therefore, the aforesaid testimony remained un-rebutted. The findings recorded by the learned trial Court in respect of the cause of death is hereby affirmed. 8-

8- Now, the only issue which requires consideration by this Court is that, whether the appellant murdered late Vinod on the night of 30.5.2010 or not?

9- In order to prove the sole charge against the appellant, the prosecution examined Aati Bai (P.W.1) who was sleeping in the courtyard of the house and on a nearby cot , deceased Vinod was sleeping in another cot. Mangilal and his wife Sushila Bai were

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sleeping inside the house. According to her, the appellant assaulted Vinod by means of Axe and upon her shouting, other villagers also came here. According to her, the appellant had killed the father of Vinod 20 years ago . The appellant went with the appellant to the market but Vishram did not come back for which the appellant did not give any reply and because of enmity, he killed Vinod. Thereafter, she was declared hostile. According to her, Mangilal ran away before coming of Mangilal to the spot. She has also admitted that at the time of incident, the night was dark. Three children were also sleeping with her. However, she denied the suggestion given to her that as she used to doubt the appellant, she has falsely implicated him.

10- Mangilal (P.W.2) has also supported the prosecution case. He came out of the house after hearing the vocal sound of Aati Bai (P.W.1) and saw that the appellant was assaulting Vinod by means of an Axe. He tried to save the deceased , but the appellant came towards him with an Axe to assault him also. By that time, his Uncle Sakharam and Manoj came there. They all chased the appellant, but he ran away. They called Surpanch and thereafter went to Police Station to lodge the report. Mangilal is the younger brother of Vishram who is said to have been killed by the appellant. According to him, the appellant was in fear that Vinod would take revenge on him for the murder of his father, therefore, he killed him.

11- The presence of the aforesaid two witnesses i.e. Aati Bai and Mangilal in the house cannot be doubted even if not challenged by the appellant . The dead body of Vinod was found in front of the

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house as per spot map. The cause of death is also not in dispute, therefore, there is no reason to disbelieve these two witnesses that they witnessed the entire incident. Merely, they are close to the deceased, their testimony cannot be discarded. Apart from that, the appellant was arrested and on his disclosure, the Axe was recovered, and most importantly human blood was found on his clothes for which he has not given any explanation. 12- The only defence which the appellant took is that the complainant used to doubt him for the murder of his father Vishram, hence he has been implicated in this case. As per the evidence of Aati Bai (P.W.1) and Mangilal (P.W.2) the dead body of Vishram was not recovered, and the appellant was not tried for his murder. The entire family did not take any revenge against the appellant for a period of 20 years of the said incident, therefore, the defence taken by the appellant is unacceptable. We do not find any ground to interfere with the impugned judgment.

Accordingly, this appeal is dismissed. The impugned judgment is hereby affirmed.

         [VIVEK RUSIA]                     [ANIL VERMA]
             JUDGE.                           JUDGE.
Alok/-
Digitally signed by ALOK GARGAV
Date: 2023.04.26 17:07:21 +05'30'