Rajesh vs The State Of Madhya Pradesh
2023 Latest Caselaw 4230 MP

                                                              1



                                 IN THE HIGH COURT OF MADHYA PRADESH
                                                       AT I N D O R E
                                            HON'BLE SHRI JUSTICE VIVEK RUSIA
                                                              &
                                            HON'BLE SHRI JUSTICE ANIL VERMA
                                            CRIMINAL APPEAL No. 137 OF 2011

                           BETWEEN:-
                           RAJESH SON OF PREMCHAND, AGE 32
                           YEARS, R/O VILLAGE PREMNAGAR, P.S.
                           MAINGAON, DISTRICT KHARGONE (WEST
                           NIMAR) (MADHYA PRADESH)
                                                                                  .....APPELLANT
                           (BY SHRI VIVEK SINGH AND SHRI RAJESH YADAV - ADVOCATES)

                           AND
                           THE STATE OF MADHYA PRADESH,
                           THROUGH    POLICE STATION BARUD
                           DISTRICT KHARGONE (WEST NIMAR)
                           (MADHYA PRADESH)
                                                                                .....RESPONDENT
                           (BY MS. MAMTA SHANDILYA - GOVERNMENT ADVOCATE)

                           Reserved on             :     22/02/2023
                           Pronounced on           :      17/03/2023


                                 This appeal having been heard and reserved for judgment, coming
                           on for pronouncement this day, the JUSTICE ANIL VERMA pronounced
                           the following:
                                                       JUDGMENT

The appellant has preferred present criminal appeal under Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment of conviction and order of sentence dated 27/1/2011 passed by II Additional Sessions Judge Khargone (West Nimar) (M.P.) in S.T.No. 93/2010, whereby the appellant has been convicted for the

Signature Not Verified Signed by: BHUVNESHWAR DATT JOSHI Signing time: 20-03-2023 12:24:15

offence under Section 302 of Indian Penal Code, 1860 (in short 'IPC') and sentenced to undergo Life Imprisonment with fine of Rs. 10,000/- with usual default stipulation.

2. The prosecution story in brief is that Natra (marriage) of deceased Mamtabai was solemnized with complainant Mahendra (PW-1). On 12.1.2010 deceased alongwith her husband Mahendra and family members came to Mahadev Temple for worship (mannat), at 2.30 in the night, deceased Mamtabai went near the seesaw situated in the Mela ground for answering the natural call alongwith Mahendra and Ajay (PW-8). When she was returning alongwith Ajay at that time his ex-husband Rajesh came there and with an intention to kill Mamta attacked on her chest and abdomen by means of knife, as a result of which blood was oozing out from her wounds. Mahendra (PW-1) narrated the incident to Head Constable Mohan Tiwari (PW-12) present on Mela duty who has registered Dehati Nalishi. Injured Mamtabai sent to the hospital but she was found dead. Dr. Chetan Pathote (PW-7) conducted the postmortem of deceased and as per his report cause of death of deceased was due to cardio respiratory failure and hypovolemic shock caused by multiple organ injury and death of deceased was homicidal in nature.

3. Prosecution case in further is that J.A. Arora (PW-13) lodged the FIR on the basis of Dehati Nalishi. He also prepared spot map (Ex.P-5) and recovered blood stained stone from the spot and blood stained cloths from possession of complainant Mahendra and Ajay vide seizure memo (Ex.P-4). He also arrested the accused by arrest memo (Ex.P-7). He also recorded the memorandum statement (Ex.P-8) of accused and according to his memorandum, he has recovered blood stained knife from his possession. Blood stained cloths of deceased alongwith other seized

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article have been sent for chemical examination to the Forensic Laboratory.

4 After completion of investigation, charge sheet was filed before the JMFC Khargone, who has committed the case to the Court of Sessions, which was later on transferred to IInd ASJ Indore for trial. Thereafter trial court on the basis of allegation made in the charge sheet framed charges under section 302 of IPC against the appellant. The appellant abjured his guilt and pleaded complete innocence. 5 In order to bring home the charges, the prosecution examined as many as thirteen witnesses and defense has examined four witnesses. The trial Court after appreciating the evidence available on record convicted the appellant under Section 302 of IPC and sentenced him as mentioned above. Hence, the appellant has preferred this appeal.

6. Learned counsel for the appellant contended that judgment of the trial Court is contrary to law and facts on record. It is neither legal nor proper nor correct. Trial Court was wrong in drawing unwarranted inferences and in not considering the material contradictions and omissions in the statement of the prosecution witnesses. Prosecution could not prove his case beyond reasonable doubt. Conviction of the appellant is bad in law. Hence, he prayed that the appeal be allowed and the judgment of conviction and sentence passed by the trial Court be set aside and appellant be acquitted from all the charges.

7. Per contra, learned counsel for the respondent / State opposes the prayer made by supporting the impugned judgment passed by the trial Court and prays for dismissal of this appeal by submitting that trial Court after appreciating the entire evidence available on record in detail came to the conclusion that the deceased was murdered by the present appellant. Trial Court has not committed any error in holding that the

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appellant is guilty of the offences under Section 302 of the IPC, therefore, present appeal deserves to be dismissed.

8. Heard learned counsel for both the parties at length and perused the entire record of the trial Court with due care.

9. We find that the following questions have emerged for consideration:

i) Whether, the death of deceased Mamtabai is homicidal in nature or not?

ii) Whether, the appellant has committed the murder of the deceased or not?

10. Dr. Chetan Pathode (PW-7) has performed postmortem of deceased on 12.2.2010. On examination of the body of the deceased Mamta he found four penetrating incised stab wounds over her body, two wounds over her left side of the chest which are sized 3 x 2 inch, one wound was found below the right nipple sized 3 x 2 inch and another wound was found on the left side of abdomen near the spleen sized 2x2 inch, the depth of this wound was not measured, all the wounds were elliptical and there margins were clear-cut. During the internal examination he found stab wound over the chest of the deceased which had cut down sternoclavicular part of rib no. 3 and it was pierced into the right atrium of heart. All the injuries were within twelve hours of postmortem and injuries were antemortem in nature, the cause of death is cardio respiratory arrest and hypovolemic shock caused by multiple organ injury mainly atrium of right side of heart. 11 The postmortem report is Ex.P-11 reveals that deceased had sustained four injuries on vital part of the body i.e. chest and abdomen caused by multiple organ injury mainly atrium of right side of heart. 12 From perusal of the record it appears that there is no record

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available which shows the injuries sustained by deceased were caused by herself or sustained in any accident. Thus there is no reason to disbelieve the findings given by Dr. Chetan Pathote that the death of deceased was homicidal in nature.

13 Prosecution has examined Ajay (PW-8) as sole eye witness. He categorically stated in his statement that at the time of incident, he went with his Jiji (Buva) Mamtabai alongwith her Jeeja (brother-in-law) Mahendra. When his Jiji was sitting there for answering the natural call, he was standing beside her and Mahendra was standing 10 ft away from there. Thereafter when they were returning at that time, Rajesh came there and he took out a knife from his pocket and gave three blow of knife over chest of his Jiji and also gave blow on left side of abdomen due to which his Jiji Mamtabai fell down on the spot and Rajesh fled away from the spot. With the help of Mahendra he brought injured Mamtabai to Mela ground, thereafter they have taken her at Khargone hospital but the doctor declared her dead.

14 Mahendra (PW-1) also corroborates that accused Rajesh is the first husband of his wife Mamtabai. On 12.2.2010 at about 2.30 am while Mamtabai went to answer the natural call at that time he went with her alongwith Ajay. After sometime he heard voice of cry and rushed there and found that deceased Mamtabai sustained three wounds over her chest and after causing the fourth blow, Rajesh fled away from the spot. Mamtabai became unconscious, later on she died. 15 Statement of sole eye witness Ajay (PW-8) is well supported by statement of Mahendra (PW-1) who was also present on the place of occurrence. Malubai (PW-9) and Mahesh (PW-11) who rushed on the place of incident after hearing hue and cry of deceased also corroborated their statement. Malubai specifically mentioned in her statement that

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when she reached on the spot then she found the accused Rajesh was running from there and Mamtabai sustained injuries over her chest and abdomen. Laxman (PW-10) also corroborated that Rajesh who is the first husband of deceased stabbed knife over the abdomen of deceased. Head Constable Mohan Tiwari (PW-12) who was present there on duty also supported the statement of Mahendra (PW-1) and (PW-8) by stating that Mahendra lodged a Dehati Nalishi (Ex.P-1) by mentioning that Mamtabai was stabbed by her earlier husband Rajesh by using a knife over her chest and abdomen. His statement is well supported by Rojnamcha reports (Ex.P-15 to Ex.P-17).

16 Learned counsel for the appellant contended that there are so many contradictions and omissions in the statement of Mahendra (PW-

1) and Ajay PW-8). But after perusal of the testimony of these witnesses, this court is of the considered view that these contradictions are trivial in nature and same is neither material nor sufficient to discard wholly their testimony.

17 The Hon'ble apex Court in the case of State of A.P. Vs. Pullugummi Kasi Reddy Krishna Reddyd reported in (2018) 7 SCC 623 has held as under:-

"Discrepancies which do not shake the credibility of the witnesses and the basic version of the prosecution case to be discarded. If the evidence of the witnesses as whole contains the ring of truth, the evidence cannot be doubted."

18 The Hon'ble Apex Court in the case of State of M.P. Vs. Chhaakkilal and others and Ramveer and Chhaakki Lal and another reported in 2018 (4) Crimes 238 (SC) has observed that finding recorded by trial Court is entitled to great weight. The same cannot be interfered with unless vitiated by serious error. It is also observed that the evidence as a whole having a ring of truth cannot be

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discarded merely because the maker is a related witness. Conviction can be based on evidence of solitary eye witness. It is further observed that omissions or lapses in investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent. Ocular testimony of eye witness cannot be discarded lightly [see : Darshan Singh Vs. State of M.P reported in 2016(3) MPLJ(Cri.) (SC) 41018). 19 Learned counsel for appellant contended that Ajay (PW-8) is the nephew of deceased and Mahendra (PW-1) is the husband of deceased, therefore, they are interested witnesses, prosecution has not examined any independent witness, therefore, statement of these interested witness cannot be relied upon.

20 It is true that Mahendra (PW-1) is husband and Ajay (PW-8) is nephew of deceased but being relatives of deceased, their presence on the spot is quite natural. Their version also appears trustworthy and reliable and well corroborated by evidence of Malubai (PW-9), Laxman (PW-10), Mahesh (PW-11) and Head Constable Mohan Tiwari (PW-12). Dehati Nalishi (Ex. P-1) has been lodged promptly. Hence this court is not inclined that these witnesses are interested witnesses and Dehati Nalishi is a concocted document.

21 The Hon'ble apex Court in the case of Chandrasekar and another Vs. State reported in (2017) 13 SCC 583 has held as under:-

"Witness being related to deceased, not a ground to reject his testimony just requiring greater scrutiny and caution in considering the same. False implication negated. The intention to cause death alongwith motive stands established."

22 So far as motive of incident is concerned, Mahendra (PW-1) categorically stated in his statement that accused Rajesh is ex-husband of Mamtabai, Mamtabai had three daughters by conception of Rajesh. Mamtabai did not give birth of a son, therefore, Rajesh divorced her but

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Rajesh wanted that Mamtabai did not solemnize second marriage. Prakash (PW-2), Ajay (PW-8) and Malubai (PW-9) also corroborated his statement. Therefore, prosecution has successfully proved the motive of crime also.

23 It is important to note that appellant himself admitted in his statement recorded under section 313 of Cr.P.C. that there is old enmity regarding divorce of deceased Mamtabai with her family members due to which he has been falsely implicated in this matter. Animosity is a double edged sword, while it cannot be basis of false implication, it can also be a basis of crime. ( See : Ruli Ram and another Vs. State of Haryana reported in (2002) 7 SCC 691). In the instant case, there is no foundation established for the plea of false implication advanced by the appellant and on the other hand, evidence shows that enmity has led to the occurrence.

24 Inspector J.S. Arora (PW-13) deposed that he has prepared spot map (Ex.P-5) and also recorded the memorandum statement of accused (Ex.P-8) and on the basis of his statement he has recovered a blood stained knife Article I at the instance of accused vide seizure memo Ex.P-9. Dr. Chetan Pathote (PW-7) also proved in postmortem report (Ex.P-11) of the deceased that deceased sustained four stabbed injury. 25 Appellant/accused took a plea that at the time of incident he was not present at the place of occurrence. But he did not examine any witness in defence to prove his plea of alibi. 26 MPEB Lineman Sriram (DW-1) and Sub Engineer Rajendra Singh (DW-3) stated that at the time of incident there was a power cut in the Mela area due to sudden rain fall. But they did not produce any relevant document to support their oral statement. No complaint of power cut has been proved by the defence. Therefore, in absence of

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documentary evidence, the trial court has rightly disbelieved their statement.

27 On a minute scrutiny of the entire evidence led by the prosecution it is established beyond reasonable doubt that the appellant gave repeated blow of knife on the chest and abdomen of the deceased which are the vital parts of the body. The statement of eye witness Ajay (PW-8) is duly supported by evidence of Mahendra (PW-1), Malubai (PW-9), Laxman (PW-10) and also corroborated by the medical evidence as well as Dehati Nalishi (Ex.P-1). Therefore, their statement appears to be trustworthy and on the basis of the aforesaid ocular and medical evidence available on record, it is established that appellant had caused grievous injuries to the deceased on her vital parts. Therefore, we do not find that the trial court has committed any illegality or irregularity in assessing the statement of the witness. The prosecution since has proved its case beyond reasonable doubts. Therefore, conviction of appellant/accused under section 302 of IPC is accordingly upheld.

28 So far as the quantum of sentence is concerned, the appellant has been convicted for offence under section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs. 10,000/-. The brutal attack was made by the appellant on a disabled person. In case of any sympathy was to be shown by this Court by reducing the sentence awarded by the trial Court, it would not only shock the conscience of the society but most materially it will also motivate others to carry out the similar brutal act. Those who take the law in their own hands and those who ruthlessly assault a person, do not deserve mercy of the court. 29 For the reasons stated above, this appeal is devoid of any merit and is hereby dismissed and conviction and sentence passed by the trial

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Court vide judgment dated 27.1.2011 is hereby affirmed. 30 The order regarding disposal of the property as pronounced by the trial Court is also affirmed.

31 A copy of this judgment be communicated to the concerned trial Court for necessary action.

C.C. as per rules.

                                  (VIVEK RUSIA)                         (ANIL VERMA)
                                   J U D G E                             J U D G E

                           BDJ




Signature Not Verified
Signed by: BHUVNESHWAR
DATT JOSHI
Signing time: 20-03-2023
12:24:15