Madhya Pradesh High Court
Raj Kumar vs The State Of Madhya Pradesh on 6 May, 2025
Author: Atul Sreedharan
Bench: Atul Sreedharan, Anuradha Shukla
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1 CRA-862-2012
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE ATUL SREEDHARAN
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 6 th OF MAY, 2025
CRIMINAL APPEAL No. 862 of 2012
RAJ KUMAR
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Pushpendra Dubey and Shri Abhishek Tiwari - Advocates for the
appellant.
Shri Akshay Namdeo - Government Advocate for the
respondent/State.
JUDGMENT
Per: Justice Atul Sreedharan
The present appeal has been filed by the appellant who was aggrieved
by the judgment of conviction and sentence dated 12.04.2011 in Sessions
Trial No.1118 of 2011 passed by the Court of the learned Sessions Judge
Betul (M.P.), whereby the sole appellant was convicted for the offence of
murder of one Vijay and sentenced to suffer life imprisonment. As on date,
the appellant has already completed more than 14 years of actual sentence.
2. The case is today listed for orders on I.A. No.32124/2024 for suspension
of sentence. However, as the appeal is of the year 2012 and the appellant has
already completed 14 years of the sentence, with the consent of parties, the
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appeal is being heard finally.
3. The brief case of the prosecution is as follows; the date of the incident is
11.03.2011. The incident is in two stages. In the First stage, in the morning
at around 08:30 a.m., the appellant is told by the P.W.2, P.W.3 and the
deceased to divert the drain arising from his house in a different direction as
it is flowing in front of their house. In the Second stage, in the night at
around 09:55 p.m., the appellant in an inebriated state, having consumed
alcohol, calls out to the deceased Vijay and when he comes out, stabs him
and then drags him near the electric pole where he dies. The prosecution
witnesses have taken the deceased to the hospital where he was declared
brought dead on arrival by the doctor.
4. In order to prove its case, the prosecution has examined P.W.1, the
mother of the deceased, P.W.2, the father of the deceased, P.W.3, the
younger brother of the deceased and certain other neighbours living in the
locality.
5. Learned counsel for the appellant submits that the appellant has falsely
been implicated in this case and that he himself is the victim, as is disclosed
by the MLC of the appellant which is Exhibit-P/15 which reflects six injuries
suffered by the appellant which have not been explained by the prosecution.
He further submits that the appellant was assaulted by the deceased and the
friends of the deceased on account of which he received these injuries.
6 . Learned counsel for the appellant also submits that the prosecution has
failed to explain the injuries found on the person of the appellant which
raises a doubt in the prosecution's case whether it is one under section 302 or
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whether under section 304 part I or II of IPC on account of exceeding the
right of private defence which according to the learned counsel for the
appellant is a reasonable inference to be drawn from the circumstances of the
case which has resulted in injuries to the appellant.
7. It is further the case of the appellant that there are a lot of contradictions
between the testimonies of P.W.1, P.W.2 and P.W.3 on one hand and the
independent witnesses of the locality. Further, learned counsel for the
appellant has drawn the attention of this Court to the site map which is
Exhibit-P/4 which reflects that the door of the house of the deceased opens in
the north direction whereas the drain that flows between the house of the
appellant and the house of the deceased is in the southern part of the house
towards which there is no opening of any door or window of the house of the
deceased. The said drain is to the north of the house of the appellant, but the
door of the appellant's house opens towards the east. Therefore, learned
counsel for the appellant submits that the prosecution's own document itself
shows that the trigger for the incident itself is not as stated by the witnesses.
As the witnesses have stated that the drain which was opened by the
appellant was flowing in front of their door, was not correct. It was further
argued by the learned counsel for the appellant that the knife seized from the
appellant which seizure is proved by P.W.-4 has tested positive for blood but
not human blood which also goes to put a doubt on the factum of the weapon
that was used for the offence.
8. Learned counsel for the State on the other hand submits that there is one
eyewitness in this case which is P.W.-1 and two witnesses to subsequent
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events which are P.W.2 and P.W.3. The independent witnesses are all
witnesses to subsequent events. Placing heavy reliance on P.W.1, learned
counsel for the State submits that when the appellant returned in the evening
and called out the name of the deceased, P.W.1 was at home chopping
vegetables and when the deceased went out in response to the call made by
the appellant herein, she is said to have followed the deceased. According to
this witness, the stabbing took place in the vicinity of the house of the
deceased and the appellant. She further states that after stabbing the
deceased, the appellant dragged the deceased to the electric pole where the
deceased collapsed. It is, however, necessary to mention here that the
learned counsel for the appellant by drawing the attention of this Court to
paragraph 6 of the statement of P.W.1 where she states that her eyesight is
weak and that she had cataract for which she was operated upon and the
cataract removed. It must also fairly be recorded herein that in cross-
examination by the defence she has stated that it is incorrect to suggest that
she cannot see and that she could see with her glasses on.
9. Learned counsel for the State has also submitted that minor variations in
the prosecution's case based upon the eyewitnesses' testimony is only natural
but the same has not gone to disturb the substratum of the prosecution's case
and therefore the eyewitnesses were believable. He further submits that
pursuant to the 27 memorandum of the accused, the knife that was used in
this offence was recovered which has tested positive for blood as per the FSL
report. He further submits that the independent witnesses of the area have
also corroborated the eyewitnesses' testimony by stating that they had seen
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the appellant run from the scene of occurrence to his house and locking the
door. Learned counsel for the State has further argued that the prosecution's
case seen in its entirety goes to prove the case beyond reasonable doubt and
that the conviction has rightly been arrived at by the learned trial Court.
However, this Court brought to the attention of the learned counsel for the
State the injuries suffered by the appellant which have not been explained by
the IO. Out of those injuries, one was a lacerated wound of the pinna of the
left ear and five other abrasions on different parts of the body. To this
learned counsel for the State has argued that the injuries may have been
suffered by the appellant on account of the defensive action taken by the
deceased before suffering the fatal stab injury.
10. Heard the learned counsel for the parties and perused the record of the
trial Court.
11. P.W.1 is the mother of the deceased. In her testimony she states that in
the morning of the incident the appellant was told by the father of the
deceased and the deceased himself to ensure that the drain from his house
does not pass in front of the door of the deceased. She also says that the
deceased said that he would do the needful. It is also relevant to mention
here that in the course of her testimony the witness volunteers a statement
that in the morning, there was a scuffle between the appellant and the
deceased during which the deceased had manhandled the appellant. She
further says that she is a patient of blood sugar from 4 to 5 years before she
testified and that she sees less from before itself on account of cataract which
she says were operated upon and removed. Once the witness admits that she
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was a patient of cataract, her subsequent statement that she was operated
upon and the cataract removed was a fact that ought to have been proved by
documentary evidence of the surgery undergone by her or the oral testimony
of the doctor who performed the surgery upon her. In the absence of the
same, the fact that she had the cataract removed is doubtful. It is also
necessary to appreciate the testimony of P.W.1 in the backdrop of two other
documents of the prosecution. One is the marg intimation which has been
proved as Exhibit-D/1 and the other is the FIRs' which are Exhibit-D/2 and
Exhibit-P/12. These documents go to reveal that there was a scuffle between
the deceased and the appellant before the fatal stabbing or in other words, it
is not as projected by the prosecution in the testimony of its witnesses that
the appellant at night called the deceased, approached him and stabbed him
straight away. The sequence of events given in the marg intimation and in
the FIR gains greater credence in the light of the fact that the appellant
received six injuries as is reflected in the MLC which has already been
referred hereinabove. It is also necessary to mention here that the prosecution
has failed to explain the injuries suffered by the appellant. It is also necessary
to mention here that in the 313 statement of the appellant, he has answered
the last question by stating that he has falsely been implicated in this case
and that it was he who was assaulted by the deceased and his friends on
account of which he has suffered the injuries which are reflected in the
MLC. As regards the flow of the drain in front of her house, the same stands
contradicted by the site map which shows that the drain is flowing on the
southern side of the house of the deceased. It is flowing between the
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southern side of the house of the deceased and the northern side of the house
of the appellant. Statements of prosecution witnesses are not to be accepted
as gospel truth only because they have not specifically been broken in cross-
examination. The same must also be doubted when the statement, seen in the
backdrop of other prosecution evidence or defence evidence, makes an
assertion in the examination-in-chief or the cross-examination doubtful.
12. As far as the statements of P.W.1, P.W.2 and P.W.3 with regard to the
flow of the drain in front of their door stands negated by the site map
prepared by the police in this case. If the very genesis of the incident is
under doubt, the rest of the evidence must be scrutinized with great
circumspection.
13. The statement of P.W.1, as already stated hereinabove reflects that the
stab injury was inflicted near the house of the deceased and the appellant and
after that he was dragged to near the pole which is about 25 feet away. The
site map does not show any spotting of human blood from the place where
the stab was inflicted (as per the statement of P.W.1) to next to the pole
where the body lay which was dragged to that place allegedly by the
appellant. In fact, the presence of blood is localized only where the body
was lying as is disclosed by P.W.6 who is the father-in-law of the younger
brother of the deceased. This witness in his examination-in-chief says that
he was informed by a neighbour of the deceased that the deceased had met
with an accident. It is this witness who takes the deceased to the hospital
where the deceased is declared dead on arrival.
14. The knife that has been seized at the behest of the appellant, did not test
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positive for human blood though it tested positive for blood. The absence of
the origin of the human blood adds on to the suspicion in this case.
15. Thus, on an overall appreciation of all the evidence in this case, what
appears to this Court that could have happened on the fateful day is that there
was firstly an altercation between the appellant and the deceased in the
course of which the appellant suffered the injuries mentioned in the MLC.
Secondly, in the ensuing scuffle between the appellant and the deceased, it
appears that the deceased suffered the knife injury which led to his death.
What does not come out as an indelible proposition based on facts is that the
stab wound was inflicted intentionally to cause death or whether it happened
accidently in the course of the scuffle. Under the circumstances, the nature of
the evidence adduced discloses that the incident took-place pursuant to a
sudden fight between the deceased and the appellant resulting in the death of
deceased. However, the presence of such injuries is reflective of a scuffle
between the appellant and the deceased on account of a sudden fight.
Therefore, the case against the appellant would be one under Section 304
Part-II of IPC rather than 302 of IPC.
16. The appeal partially succeeds. The conviction under Section 302 of IPC
is set aside and the appellant is punished for the offence under Section 304
Part-II of IPC and sentenced to suffer the period already undergone by him
of 14 years. The appellant is still in the jail; he shall be released forthwith, if
he is not required in any other case.
17. The fine amount, if any, deposited by the appellant shall be refunded to
him immediately.
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18. The appeal is disposed of.
19. Record of the learned trial Court be returned along with the copy of this
judgment.
(ATUL SREEDHARAN) (ANURADHA SHUKLA)
JUDGE JUDGE
sjk
