Madhya Pradesh High Court
Premnarayan (Jai Appeal) vs The State Of Madhya Pradesh on 2 March, 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 2nd OF MARCH, 2023
CRIMINAL APPEAL NO.719 OF 2014
BETWEEN:-
PREMNARAYAN, S/O MATHURALAL LODHA,
AGED 45 YEARS, R/O VILLAGE BHURA CHAKK,
POLICE STATION BAMORI, DISTRICT GUNA,
MADHYA PRADESH.
........APPELLANT
(BY SHRI R.K. SINGH KUSHWAH - ADVOCATE)
AND
STATE OF MADHYA PRADESH THROUGH
POLICE STATION BAMORI, DISTRICT GUNA,
MADHYA PRADESH.
........RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL)
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Reserved on : 13th of February, 2023
Pronounced on : 2nd of March, 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 30/07/2010, passed by the Court of 4 th Additional
Sessions Judge (Fast Track Court), Guna (M.P.) in S.T. No.101/2010,
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.1,000/-, in default to suffer further six
months' rigorous imprisonment.
2. The prosecution case in brief is as follows:
(i) The complainant Santosh- Lodha and the appellant- Premnarayan
Lodha both are resident of village Bhura Chakk, Police Station Bamori,
District Guna. On 23/3/2010 at about 16:00 hours, when complainant
alongwith his sisters Dhan Bai & Nathiya Bai, brother Hemraj and
sister-in-law Kamar Bai was sitting with his father- Paramsukh Lodha in
the veranda (Usor) of his house, the appellant, armed with an axe, came
there from the back gate of the complainant's house and assaulted
complainant's father- Paramsukh with an axe on his neck, due to which
blood started oozing out from the wound and he immediately fell down
on the cot. Thereafter, appellant fled away from the spot. After hearing
the screams of complainant and his family members, complainant's
brother- Laxminarayan Lodha and uncle Imratlal rushed to the spot.
They immediately took the complainant's father Paramsukh in a jeep
and went towards Guna for his treatment, but on the way he succumbed
to the injuries sustained by him.
(ii) On the same day, complainant made an oral complaint to the
police, on the basis of which, at about 18:10 hours, Merg Intimation
Report, Ex. P/1, and FIR, Ex. P/2, were lodged at Police Station Bamori,
District Guna. I/O, SHO S.C. Shrivastava went to the place of incident,
prepared the spot map, Ex. P/3, seized the blood soaked soil, Article-B,
alongwith plain soil, Article-C, and blood stained Niwar, Article-D, of
the cot from the place of incident as per seizure memo, Ex. P/7. He also
seized a Gathri (bundle of clothes containing blanket, wheat, salt,
chilly, gud), Article-D, and a plastic cane left by the appellant on the
spot as per seizure memo, Ex. P/8.
(iii) On the next day i.e. 24/3/2010, he went to the District Hospital
Guna, called the witnesses issuing Safina Form, Ex. P/4, and prepared
Naksha Panchayatnama, Ex. P/5, of the body of the deceased, and
thereafter, sent the same for postmortem examination. On the same day,
at about 11.00 hours, Dr. Sitaram Raghuvanshi and Dr. Bhatti conducted
the postmortem examination of the body of the deceased and found an
oblique muscles deep incised wound over right side of his neck upto
middle neck. He prepared postmortem report, Ex. P/22, and opined that
the death of the deceased was caused due to syncope as a result of spinal
cord cut, found on his neck, within 24 hours from the time of
postmortem examination.
(iv) On 04/4/2010, SHO S.C. Shrivastava arrested the appellant vide
arrest memo, Ex. P/14, recorded his disclosure statements, Ex. P/15, and
on the basis of which, at his instance seized a blood stained axe, Article-
A, from his possession as per seizure memo, Ex.P/16. He vide letter
dated 06.04.2010, Ex. P/19, sent all the seized articles to FSL, Gwalior.
After completion of investigation, obtained the FSL report, Ex. P/18,
and filed the charge-sheet before the Court of Judicial Magistrate First
Class, Guna, who committed the case to the Court of Sessions Judge,
Guna, from where the same was made over to the Court of 4 th Additional
Sessions Judge, Guna.
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 prosecution
case apparently appears unnatural, as it was not possible for anyone to
assault the deceased when he was sitting with his sons and daughters
and none of them either tried to save him or tried to catch hold the
appellant. The appellant was not having any motive to commit the
murder of the deceased. He was not mentally normal at the time of
incident. During cross-examination of the prosecution witnesses,
specific suggestions were given in this regard on behalf of the appellant.
The investigating officer- S.C. Shrivastava, in para 6 of his cross-
examination, has admitted the aforesaid fact. Even then, report about the
mental status of the appellant was not called. Learned Trial Court has
committed error in holding the appellant guilty for the offence under
Section 302 of IPC. Thus, impugned judgment of conviction and order
of sentence is not sustainable and deserves to be set aside, hence, the
same may be set aside and appellant may be acquitted from the charges
framed against him.
7. Per contra, learned counsel for the respondent/State submits that
prosecution case is based on direct as well as circumstantial evidence.
Complainant- Santosh Lodha (PW-1) and other prosecution witnesses,
Dhanbai (PW-2) and Imratlal (PW-3) have specifically deposed that
they saw the appellant assaulting the deceased. Weapon used in the
crime was seized at the instance of the appellant from his possession.
There is nothing on record, on the basis of which statement of
prosecution witnesses can be disbelieved or doubted. Prosecution has
proved its case beyond reasonable doubt. Learned Trial Court has not
committed any error in holding the appellant guilty. 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 in its support has examined in all 11 prosecution
witnesses including complainant- Santosh Lodha (PW-1) and his sister
Dhanbai (PW-2) as eyewitnesses. Other material witnesses are Imratlal
(PW-3), who rushed to the spot just after the incident and saw the
appellant fleeing away from the spot. Dr. Sitaram Raghuvanshi (PW-
11), who conducted the postmortem examination of the body of the
deceased. Head Constable Amritlal Sharma (PW-4), who lodged the
Merg intimation report Ex.P/1 and FIR Ex.P/2, and I/O, S.C.
Shrivastava (PW-9), who investigated the case.
10. From the statements of complainant- Santosh Lodha (PW-1), his
sister Dhanbai (PW-2) and Imratlal (PW-3), this fact is established that
on 23/3/2010 at about 16:00 hours, complainant's father Paramsukh was
assaulted at his house, due to which he sustained grievous injuries over
right side of his neck and thereafter, he succumbed to the injuries
sustained by him.
11. Complainant- Santosh Lodha (PW-1) deposed that on the same
day, he informed to the police about the incident. Head Constable
Amritlal Sharma (PW-4) deposed that on 23/3/2010 at about 18:10
hours, on the basis of oral complaint made by the complainant, he
lodged the Merg intimation report, Ex. P/1, about the death of the
deceased and also lodged the FIR, Ex. P/2, at Police Station Bamori,
District Guna. I/O, S.C. Shrivastava (PW-9) deposed that on 24/3/2010,
he went to the District Hospital Guna, called the witnesses issuing
Safina Form, Ex. P/4, and prepared Naksha Panchayatnama, Ex. P/5, of
the body of the deceased, and thereafter, sent the same for postmortem
examination. Dr. Sitaram Raghuvanshi (PW-11) deposed that on the
same day, at about 11.00 hours, he alongwith Dr. Bhatti conducted the
postmortem examination of the body of the deceased and found
following injuries on his body:-
An obliquely stretched muscles deep incised
wound, measuring 10 cm x 2 cm, over right
side of neck extended upto middle of neck,
cutting spinal cord with 3rd cervical vertebrae.
His vertebrae artery and muscle of neck were
also found cut.
12. Dr. Sitaram Raghuvanshi (PW-11) deposed that he alongwith Dr.
Bhatti prepared the postmortem report (Ex. P/22) and opined that all the
injuries found on the body of the deceased were antimortem in nature
and deceased died due to syncope as a result of injuries sustained by
him on his neck, within 24 hours from the time of postmortem
examination. Appellant has not challenged the aforesaid facts, therefore,
this fact is also established that the deceased was assaulted by hard and
sharp object and he died due to the injuries sustained by him at the time
of incident and the nature of his death was homicidal. As the injuries
found on the body of the deceased were caused by hard and sharp object
on vital part 'Neck', and the nature of injuries were so grievous, cutting
the spinal cord with 3 rd cervical vertebrae, therefore, this fact is also
established that the above injuries were caused with an intent to cause
his death, hence, there remains no doubt that he was murdered on the
date of incident.
13. So for as the issue whether the injuries found on the body of the
deceased were caused by the appellant is concerned, prosecution case is
mainly based on direct evidence and in this regard prosecution has
examined complainant- Santosh Lodha, his sister Dhanbai and Imratlal
as eyewitnesses. Santosh Lodha (PW-1) and Dhanbai (PW-2) deposed
that on the date of incident i.e. 23/3/2010 at about 16.00 hours, when
they alongwith their other family members were sitting with their father-
Paramsukh in the veranda (Usor) of their house, the appellant on the
previous enmity, armed with an axe, came there from the back gate of
their house and assaulted their father-Paramsukh with an axe on his
neck due to which he fell down on the cot.
14. Imratlal (PW-3) also made similar statements that he saw the
appellant assaulting the deceased with an axe and thereafter, fleeing
away from the spot alongwith an axe, but his aforesaid statements are
contrary to his earlier statements, Ex. D/1, recorded u/S 161 of Cr.P.C.,
wherein it was stated by him that when he reached the spot after hearing
the screams of children, coming out from the premises of the house of
the deceased, he saw the appellant fleeing away from the spot alongwith
an axe. He is resident of the same locality, therefore, his statements only
to the extent that after the incident he saw the appellant fleeing away
from the spot alongwith an axe are believable. Nothing material has
been extracted during his cross-examination, on the basis of which his
aforesaid statements can be disbelieved.
15. In this regard, prosecution has also examined Vijay Dahiley, who
telephonically informed about the incident to the police and H.C.
Amritlal Sharma, who entered the aforesaid information in the
Rojnamchasanha of P.S. Bamori, District Guna. H.C. Amritlal Sharma
(PW-4) deposed that on the date of incident at about 16.10 hours i.e. just
after 10 minutes of the incident, he had received a telephonic
information about the incident from one of the resident of the same
village namely Vijay Dahiley, wherein it was alleged that the appellant
had assaulted Paramsukh with an axe, and family members of injured
Paramsukh had taken him to hospital. He deposed that he entered the
aforesaid information in the Rojnamchasanha of P.S. Bamori, District
Guna bearing No.574/ 23.03.2010, Ex. P/9. He further deposed that on
the same day, on the basis of oral complaint made by the complainant
Santosh, he lodged the Merg Intimation Report, Ex. P/1, about the death
of the deceased as well as FIR, Ex.P/2.
16. Vijay Dahiley (PW-6) deposed that on the date of incident, after
receiving an information about the incident, he being former Sarpanch
of the village, informed the police about the quarrel occurred between
the appellant and Paramsukh, wherein Paramsukh was injured. I/O, SI
S.C. Shrivastava (PW-9) deposed that after receiving the aforesaid
telephonic information, he alongwith other police officials had rushed
towards spot. Complainant- Santosh Lodha (PW-1) deposed that after
the incident, while taking to the hospital, on the way, when his father
Paramsukh succumbed to the injuries sustained by him, he informed the
police about the death of his father and made oral complaint, on the
basis of which Merg Intimation Report, Ex. P/1, and FIR, Ex. P/2, were
lodged at P.S. Bamori. Statements of all the above witnesses are
consistent on the points of entries made in the Rojnamchasanha bearing
No.574/ 23.03.2010, Ex. P/9, Merg Intimation Report, Ex. P/1, and FIR,
Ex. P/2, lodged at P.S. Bamori, which support the prosecution case that
name of the appellant as assailant was surfaced just 10 minutes after the
incident, as per Rojnamchasanha entry bearing No.574/ 23.03.2010, Ex.
P/9.
17. I/O, SI S.C. Shrivastava (PW-9) deposed that after the incident, he
arrested the appellant and recorded his disclosure statement Ex. P/15,
wherein he disclosed about the weapon axe, on the basis of which on
the instance of the appellant, he seized an axe, Article-A, from his
possession as per seizure memo Ex.P/16. As per FSL report Ex.P/18,
human blood was found on the aforesaid axe, Article-A, and appellant
has not explained as to how the axe, Article-A, seized from his
possession got stained with human blood, which also corroborates the
prosecution case. Judgment passed by Hon'ble the Apex Court in the
case of John Pandian Vs. State Represented by Inspector of Police,
Tamil Nadu, (2010) 14 SCC 129 is referred to. Releveant para thereof
reads as under:-
57. It was then urged by the learned counsel that this
was an open place and anybody could have planted
veechu aruval. That appears to be a very remote
possibility. Nobody can simply produce a veechu
aruval planted under the thorny bush. The discovery
appears to be credible. It has been accepted by both the
courts below and we find no reason to discard it. This
is apart from the fact that this weapon was sent to the
forensic science laboratory (FSL) and it has been
found stained with human blood. Though the blood
group could not be ascertained, as the results were
inconclusive, the accused had to give some explanation
as to how the human blood came on this weapon. He
gave none. This discovery would very positively
further the prosecution case.
18. In view of the above, learned Trial Court has not committed any
error in relying upon the statements of complainant Santosh Lodha
(PW-1) and his sister Dhanbai (PW-2), which are supported by the
statements of Imratlal (PW-3), Vijay Dahiley (PW-6) and H.C. Amritlal
Sharma (PW-4) and also from the Rojnamchasanha entry bearing No.
574/ 23.03.2010, Ex. P/9, Merg Intimation Report, Ex. P/1, and FIR,
Ex. P/2, lodged by him at P.S. Bamori, District Guna and holding the
appellant liable for the injuries found on the body of the deceased.
19. It has vehemently been argued on behalf of the appellant that it is
apparent from the statements of investigating officer SI, S.C.
Shrivastava (PW-9) that at the time of incident mental condition of the
appellant was normal, therefore, the trial conducted against him is
vitiated and he can not be held guilty for the alleged offence. In this
regard, the judgement passed by Hon'ble the Apex court in the case of
Bhikari v. the State of Uttar Pradesh, AIR 1966 SC 1, cited by the
learned Trial Court, can be relied upon, wherein it is held that every one
is presumed to know the natural consequences of his acts and also to
know the law, therefore, these facts are not required to be proved by the
prosecution. And, it is for this reason that section 105 of the Evidence
Act, places upon the accused person the burden of proving the
exception upon which he relies.
20. In the instant case, appellant has not produced any oral or
documentary evidence to prove the fact that on the date of incident, at
the relevant point of time he was incapable of knowing the nature of the
act or that what he was doing was either wrong or contrary to law. An
application dated 14/7/2010 was filed on behalf of him in this regard,
which was rejected by the Trial Court after finding the appellant's
mental condition normal. During cross-examination of prosecution
witnesses, it has been suggested on behalf of him that there was
previous enmity between the appellant and complainant, therefore,
looking to the conduct of the appellant and over all material produced
on record, learned Trial Court has not committed any error in recording
the finding of conviction against the appellant for the offence under
Section 302 of IPC and sentencing him to suffer the imprisonment as
mentioned in para 1 of this judgment.
21. Ex-consequenti, the judgment and sentence dated 30/07/2010,
passed by the Court of 4th Additional Sessions Judge (Fast Tract), Guna
(M.P.) in S.T. No.101/2010 is hereby affirmed.
22. The Appellant is in jail. He shall undergo the jail sentence so
awarded to him.
23. The Registry is directed to immediately supply a copy of this
judgment to the Appellant, free of cost.
24. Let the record of the Trial Court be sent back immediately, along
with copy of this judgment, for necessary information and compliance.
25. Accordingly, the Appeal is Dismissed.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
Arun*
ARUN KUMAR MISHRA
2023.03.02 15:45:12 +05'30'
