Madhya Pradesh High Court
Narendra vs State Of M.P on 10 February, 2023
Author: Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 10th OF FEBRUARY, 2023
CRIMINAL APPEAL NO.102 OF 2013
BETWEEN:-
NARENDRA, S/O SHRI GOPAL ADIWASI, AGED
28 YEARS, OCCUPATION- AGRICULTURIST, R/O
VILLAGE SATANWADA, DISTRICT SHIVPURI
(MADHYA PRADESH).
........APPELLANT
(BY SHRI SURESH AGRAWAL - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION SATANWADA, DISTRICT
SHIVPURI (MADHYA PRADESH).
........RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL)
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Reserved on : 31st of January, 2023
Pronounced on : 10th of February, 2023
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This Criminal Appeal having been heard and reserved for
judgment, coming on for pronouncement this day, Hon'ble Shri Justice
Satyendra Kumar Singh pronounced the following:
JUDGMENT
This jail appeal, under section 383 of the Code of Criminal
Procedure, 1973 (for brevity "Cr.P.C."), has been preferred against the
judgment dated 11/10/2012, passed by the Court of Sessions Judge,
Shivpuri (M.P.) in S.T. No.182/2012, whereby the appellant has been
convicted under Section 302 of the Indian Penal Code, 1860 (for brevity
"IPC") and sentenced to undergo life imprisonment with fine of
Rs.2,000/-.
2. The prosecution case in brief is as follows:
(i) That the appellant was born out of the wedlock of Gopal and
Ramwati Bai. After the death of Gopal, appellant's mother Ramwati Bai
solemnized marriage with Gopi. Thereafter, appellant's mother Ramwati
Bai also died and then Gopi solemnized marriage with the complainant
Munni Bai, whose earlier husband had also died. They were living at
village Rudhiyapura for last three years, where appellant, his brothers
and sisters occasionally used to visit. Appellant wanted to sale the land
of his father Gopal situated at village Khuraira and for that prior to the
incident, he frequently used to visit complainant's house and asked Gopi
to sale the aforesaid land, on which Gopi advised him not to sale the
said land. In the intervening night of 27-28/5/2012, after taking dinner,
complainant slept outside her house alongwith her children, while her
husband Gopi and appellant went to sleep in the veranda of Shaskiya
Satellite Shala Bhavan, situated near the house of the complainant.
(ii) On 28/5/2012 at about 4.00 hours, after hearing noise of an axe,
when complainant woke up, she saw the appellant assaulting her
husband Gopi with an axe. After hearing her screams, when
complainant's son- Pancham, Gopi's brother-in-law Rajendra and
witness Jaggu rushed to the spot, they saw the appellant fleeing away
from the spot alongwith an axe. On the same day, complainant went to
Police Station Satanwada, District Shivpuri and informed the police
about the incident, on the basis of which at about 6:15 hours, FIR, Ex.
P/1 and at about 6.20 hours, Merg Intimation Report, Ex. D/2 about the
death of the deceased Gopi was registered. SI, Sanjay Mishra went to
the place of occurrence, prepared spot map, Ex. P/2 and seized blood
stained piece of cemented floor alongwith plain piece of cemented floor
from the place of occurrence as per seizure memo Ex. P/4. He called the
witnesses issuing Safina form and prepared Naksha Panchayatnama, Ex.
P/3 of the body of the deceased Gopi and sent the same to the
Community Health Center, Satanwada for postmortem examination.
(iii) On the same day, at about 7:45 hours, Dr. Keshav Sharma
conducted the postmortem of the body of the deceased Gopi and found
in all about six incised wounds on his head, neck, chest and abdomen.
He prepared postmortem report, Ex. P/8 and opined that all the above
injuries found on the body of the deceased were antimortem and the
death of the deceased was caused due to shock and syncope as a result
of massive hemorrhage by hard and sharp object within six hours from
the time of postmortem examination and was homicidal in nature.
(iv) SI, Sanjay Mishra arrested the appellant vide arrest memo dated
15/06/2012, Ex. P/5, and seized the weapon, axe, used in the crime from
his possession alongwith his blood stained clothes, worn by him at the
time of incident as per seizure memo Ex. P/6. He vide letter Ex.P/9, sent
all the seized articles to FSL Gwalior, obtained the FSL report Ex.P/10
and after completion of investigation, filed the charge-sheet against the
appellant before the Court of Judicial Magistrate First Class, Shivpuri,
who committed the case to the Court of Sessions Judge, Shivpuri.
3. Learned Trial Court considering the material prima facie available
on record, framed the charge under Section 302 of IPC against the
appellant, who abjured the guilt and prayed for trial.
4. Learned Trial Court after appreciating oral as well as
documentary evidence available on record, convicted the appellant for
the offence punishable under Section 302 of IPC and sentenced him as
mentioned in para 1 of this judgment.
5. Being aggrieved by the impugned judgment of conviction and
order of sentence, appellant has preferred the instant appeal through jail
for setting aside the impugned judgment and discharging him from the
charge framed against him.
6. Learned counsel for the appellant submits that the learned Trial
Court has committed legal error while appreciating the evidence
available on record. There was no dispute between the appellant and the
deceased as the land, which appellant wanted to sale, was admittedly his
father Gopal's land. Prosecution has failed to prove the fact that at the
time of incident, complainant- Munnibai was sleeping outside her
house. Prosecution witnesses admitted in their cross-examination that at
the time of incident, there was dark and there were no arrangements of
light either near the house of the complainant or at the place of
occurrence. Therefore, statements of prosecution witnesses that they
saw the appellant assaulting the deceased or fleeing away from the spot
are not believable, as it was not possible for anyone to see the incident
said to have happened in the veranda of Shaskiya Satellite Shala
Bhavan. Learned counsel by referring paras 7 and 8 of the cross-
examination of the complainant, submits that statements of complainant
are inconsistent on the point of incident and, therefore, not reliable.
Other prosecution witnesses have admitted that they reached the spot
after the incident. No human blood was found on the weapon, axe, said
to be seized from the possession of the appellant. Prosecution has failed
to prove its case beyond reasonable doubt. 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.
7. 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. The complainant was
sleeping near the place of incident and she saw the appellant assaulting
the deceased. Other witnesses saw the appellant fleeing away from the
spot. Their statements are consistent. Prosecution has proved its case
beyond reasonable doubt, therefore, learned Trial Court has not
committed any error in convicting the appellant. Hence, the appeal filed
by the appellant is devoid of merits and deserves to be dismissed.
8. Heard learned counsel for the parties at length and perused the
record.
9. Prosecution case is based on direct as well as on circumstantial
evidence and prosecution in its support has examined in all six
prosecution witnesses including complainant- Munnibai (PW-1), her son
Pancham (PW-4), who had last seen the deceased Gopi alive together
with the appellant going towards Shaskya Satellite Shala Bhavan for
sleeping on the previous night of the incident and also saw the appellant
assaulting the deceased Gopi with an axe at the time of incident. Other
material witnesses are Rajendra (PW-2) and Jagga (PW-3), who saw the
appellant fleeing away from the spot alongwith an axe after the incident,
Dr. Keshav Sharma (PW-5) who conducted the postmortem examination
of the body of the deceased and SI, Sanjay Mishra (PW-6), who
investigated the case.
10. From the statements of complainant- Munnibai (PW-1), Rajendra
(PW-2), Jagga (PW-3) and Pancham (PW-4) this fact is established that
on 28/5/2012 at about 4.00 hours, they saw the deceased Gopi in injured
condition, lying in pool of blood at the floor of the veranda of Shaskiya
Satellite Shala Bhavan, situated near the house of the complainant. SI,
Sanjay Mishra (PW-6) deposed that on the same day, at about 6:15
hours, on the basis of oral information given by the complainant-
Munnibai, he lodged the FIR, Ex. P/1 and the Merg Intimation Report,
Ex. D/2 about the death of the deceased Gopi, and thereafter, went to
the place of occurrence, prepared the Naksha Panchayatnama, Ex. P/3 of
the body of the deceased Gopi and sent the same to the Community
Health Center, Satanwada for postmortem examination.
11. Dr. Keshav Sharma (PW-5) deposed that on the same day, at about
7.45 hours, he conducted the postmortem of the body of the deceased
Gopi and found following injuries on his body:-
1. An incised wound measuring 6 cm X 5 cm X 3
cm, on vault of head, bleed profusely, peeping
out of brain.
2. An incised wound measuring 4 cm X 3 cm X 3
cm, diagonally, on ventral side of neck, bleed
profusely, causing broken of 6 th & 7th tracheal
rings and thyroid cartilage.
3. An incised would measuring 5 cm X 3 cm X 3
cm, on right side of chest, bleed profusely,
causing broken of 2nd & 3rd ribs.
4. An incised wound measuring 5 cm X 3 cm X 3
cm, on mid chest, over manubrium, bleed
profusely, causing broken of manubrium.
5. An incised wound on left side of chest over 12 th
rib.
6. An incised wound measuring 6 cm X 3 cm X 2
cm, on left side of abdomen.
12. Dr. Keshav Sharma (PW-5) deposed that all the above injuries
found on the body of the deceased were antimortem and were caused by
hard and sharp object. He stated and reported in his postmortem report,
Ex. P/8, that the death of the deceased was caused due to shock and
syncope as a result of massive hemorrhage by hard and sharp object
within six hours from the time of postmortem examination and his death
was homicidal in nature.
13. All the aforesaid facts have not been challenged by the appellant,
therefore, this fact is established that in the intervening night of 27-
28/5/2012, deceased Gopi was assaulted by hard and sharp object due to
which he sustained grievous injuries on his head, neck, chest and other
vital parts of his body and had died on the spot. Since all the injuries,
found on the body of the deceased, were caused by hard and sharp
object on his vital parts head, neck, chest and abdomen, therefore,
looking to the number and nature of the injuries there remains no doubt
that the same were caused with an intent to commit his murder and he
was murdered.
14. So for as the issue whether the injuries found on the body of the
deceased were caused by the appellant is concerned, from the statement
of complainant- Munnibai (PW-1), her son Pancham (PW-4) and also
from the statement of the appellant recorded under Section 313 of
Cr.P.C., this fact appears undisputed that the appellant was born out of
the wedlock of Gopal and Ramwati and after the death of his father-
Gopal, her mother- Ramwati, solemnized marriage with the deceased
Gopi, who thereafter, after the death of the appellant's mother- Ramwati,
solemnized marriage with the complainant- Munnibai and was living
with her at village Rudhiyapura for the last three years, where appellant
as well as his brothers and sisters used to visit.
15. Complainant- Munnibai (PW-1) deposed that on the previous
night of the incident, appellant had come at her house at village
Rudhiyapur and took dinner with them, thereafter, he alongwith the
deceased Gopi went towards Shaskiya Satellite Shala Bhavan for
sleeping, while she slept outside her house. Pancham (PW-4) also made
similar statements and deposed that on the previous night of the
incident, he alongwith his other family members and appellant took
dinner, whereafter appellant and deceased went towards Shaskiya
Satellite Shala Bhavan for sleeping, while he alongwith his wife slept
inside the house.
16. During cross-examination of the complainant Munnibai (PW-1)
and Pancham (PW-4), appellant has nowhere challenged the aforesaid
facts, therefore, there is no reason to disbelieve the fact that on the
previous night of the incident, appellant was very well present at the
complainant's house and after taking dinner with them, he alongwith the
deceased Gopi went towards Shaskiya Satellite Shala Bhavan for
sleeping and deceased was last seen alive together with him. This fact
also finds support from the statements of prosecution witness Rajendra
(PW-2) and also from the spot map, Ex.P/2, prepared by the IO, SI,
Sanjay Mishra (PW-6), wherein appellant's cot has specifically been
shown near the bed of the deceased i.e. place of incident where
deceased- Gopi was found dead.
17. Complainant- Munnibai (PW-1) deposed that on the date of
incident at about 4:00 hours, after hearing the noise of an axe when she
woke up, she saw the appellant assaulting deceased Gopi with an axe.
Rajendra (PW-2) deposed that after hearing the screams of the deceased,
when he rushed towards Gopi's house, he saw the appellant fleeing
away from the spot alongwith an axe. Pancham (PW-4) deposed that
after hearing the screams of her mother, when he rushed towards spot,
he saw the appellant fleeing away from the spot. Both the above
witnesses have deposed that they saw the deceased Gopi in injured
condition and on being asked, complainant told them that appellant had
cut the deceased.
18. Appellant has challenged the aforsaid statements of complainant-
Munnibai (PW-1), Rajendra (PW-2) and Pancham (PW-4) on the ground
that as per prosecution case itself, the incident took place at about 4:00
hours in the morning and there was dark at that time and there were no
arrangements of light either at the place of incident or at the house of
the complainant, therefore, statements of the above witnesses about the
fact that they saw the appellant assaulting the deceased and fleeing
away from the spot, is unbelievable.
19. Appellant has also challenged the fact that the complainant's
house is situated near the place of incident i.e. Shaskiya Satellite Shala
Bhavan, but nothing specific has been suggested by him. Complainant-
Munnibai (PW-1), in para 7 of her cross-examination specifically
deposed that Shaskiya Satellite Shala Bhavan is about 10-12 steps away
from her house. Rajendra (PW-2), in para 5 of his cross-examination
deposed that Shaskiya Satellite Shala Bhavan is about 50 ft away from
the complainant's house. Complainant's son Pancham (PW-4), in para 6
of his cross-examination deposed that Shaskiya Satellite Shala Bhavan
is about 30-40 ft away from his house. There is nothing on record, on
the basis of which their aforesaid statements can be disbeleived or
doubted.
20. In view of the above, this can very well be inferred that in the
intervening night of the incident complainant was sleeping outside her
house, which is at the most 50 ft away from Shaskiya Satellite Shala
Bhavan, i.e. the place of incident, where deceased was found dead in the
morning. Hence, the statements made by the complainant that at the
time of incident, after hearing the noise of an axe, she woke up and
rushed to the spot and saw the appellant assaulting deceased Gopi
cannot be said to be unbeleivable. The aforesaid fact finds support from
her own statements made, just after the incident, to Rajendra (PW-2)
and Pancham (PW-4) that the appellant had assaulted/cut the deceased
and also from the FIR, Ex. P-1, lodged by her just after the incident.
21. As this fact has already been found established that in the
intervening night of the incident, deceased Gopi was last seen alive
together with the appellant and had slept with the appellant in the
veranda of Shaskiya Satellite Shala Bhavan and appellant has not given
any explanation as to how deceased sustained the injuries, found on his
body, therefore, there is no reason to disbeleive the consistent
statements of the complainant, which are supported by the statements of
Rajendra (PW-2) and Pancham (PW-4) and also from the FIR, Ex. P-1,
that the injuries found on the body of the deceased were caused by an
axe.
22. It is settled principle of law that in a criminal case, based on direct
evidence, motive is not required to be proved as held by the learned
Trial Court relying upon the judgements passed by the Apex Court in
the case of Gosu Jairami Reddy & Anr. V. State of A.P., AIR 2011 SC
3147 and State of Andhra Pradesh v. Bogam Chandraiah and
another, AIR 1986 SC 1899. Hence, submissions made by the learned
counsel for the appellant in this regard is not acceptable that in the
absence of any motive, allegations alleged against the appellant cannot
be said to be proved beyond reasonable doubt. The learned trial Court
has not committed any error in holding the appellant guilty for the
offence punishable u/S 302 of IPC.
23. So for as the sentence awarded to the appellant is concerned,
learned Trial Court has awarded life imprisonment with fine of
Rs.2000/, but period of imprisonment in default of payment of fine has
not been mentioned. Thus, impugned judgement is required to be
modified to that extent only. Hence, appeal is partly allowed, conviction
of the appellant for the offence punishable u/S 302 of IPC is affirmed,
but sentence awarded to him is reduced from life imprisonment with
fine of Rs.2,000/- to life imprisonment.
24. Ex-consequenti, the judgment and sentence dated 11/10/2012
passed by the Court of Sessions Judge, Shivpuri (M.P.) in S.T.
No.182/2012 is hereby affirmed with aforesaid modification.
25. The Appellant is in jail. He shall undergo the jail sentence so
awarded to him.
26. Fine amount (if any) deposited by the appellant be refunded to
him.
27. The Registry is directed to immediately supply a copy of this
judgment to the Appellant, free of cost.
28. Let the record of the Trial Court be sent back immediately, along
with copy of this judgment, for necessary information and compliance.
29. The Appeal is Partly Allowed to the extent mentioned above.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.02.13 11:23:16 +05'30'
