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Madhya Pradesh High Court · body

2003 DIGILAW 787 (MP)

IMRAT v. STATE OF M P

2003-06-27

A.K.SHRIVASTAVA, DIPAK MISRA

body2003
Judgment ( 1. ) IN this appeal preferred under Section 374 (2) of the Code of criminal Procedure, from jail, the appellant, a man in his late 20s has called in question the defensibility of the judgment of conviction and order of sentence passed by the learned Second Additional Sessions Judge, Betul in Sessions trial No. 100/1991, whereby the learned Trial Judge, after finding him guilty, sentenced him to suffer R. I. for life. ( 2. ) BEFORE we dwell upon the factual scenario of the case, we think it appropriate and condign to refer to a significant aspect. When this matter was listed and was called on many an occasion, the learned Counsel who was representing the appellant chose neither to appear nor to make a prayer for adjournment, under compelling circumstances, the case was passed over on certain dates in the presence of the Counsel for the State. Under these circumstances we did not think it appropriate to adjourn the matter when the list was almost getting exhausted. We enquired about the learned Counsel, who represented the appellant, yet we could not get any response. Under these circumstances we proceeded with the hearing of the appeal. In this context we may profitably refer to the three Judge Bench decision of the Apex Court rendered in the case of Bani Singh and others Vs. State of Uttar Pradesh, AIR 1996 SC 2439 , wherein the Apex Court has extracted the view as under :- "it is the duty of the appellant and his lawyer to remain present on the appointed day, time and place when the appeal is posted for hearing. This is the requirement of the Code on a plain reading of Sections 385-386 of the Code. The law does not enjoin that the Court shall adjourn the case if both the appellant and his lawyer are absent. If the Court does so as a matter of prudence or indulgence, it is a different matter, but it is not bound to adjourn the matter. It can dispose of the appeal after perusing the record and the judgment of the Trial Court. The plain language of the Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. It can dispose of the appeal after perusing the record and the judgment of the Trial Court. The plain language of the Sections 385-386 does not contemplate dismissal of the appeal for non-prosecution simpliciter. On the contrary, the Code envisages disposal of the appeal on merits after perusal and scrutiny of the record. The law clearly expects the Appellate Court to dispose of the appeal on merits, not merely by perusing the reasoning of the Trial Court in the judgment, but by cross-checking the reasoning with the evidence on record with a view to satisfying itself that the reasoning and findings recorded by the Trial Court are consistent with the material on record. " ( 3. ) IN view of this we have found it seemly to proceed with the case. The prosecution case, stated briefly, is that on 16-5-1991 at about 2 p. m. when the deceased Chironji accompanied by his wife Mangia was proceeding towards Bheempur Market, the appellant (hereinafter referred to as "the accused") who had hidden himself behind the stack of woods of one Sohan singh came up and stabbed Chironji, his own father, as a result of which the deceased succumbed to the injuries. The helpless mother Mangia Bai (P. W. 2), shrieked in uncontrolled agony, which was instrumental for collection of a number of people. The accused after assault fled away. An FIR was lodged by the son-in-law Lamboo (P. W. 1), which set the Criminal Law in motion. It was alleged in the FIR that the accused had stolen a sum of Rs. 500/- from the house of Chironji and when a demand was made by the deceased to pay the same or at least a part of the same, the young man harbored the feelings of anger and thereafter on the date of incident, murdered the father. On the basis of the FIR Crime No. 70/1991 was instituted for an offence punishable under section 302 of the Indian Penal Code (in short the IPC) and thereafter investigating agency commenced investigation, did panchnama of the dead body, examined the witnesses under Section 161 of the Code of Criminal procedure, sent the dead body for post-mortem to the concerned Autopsy surgeon, seized the wearing apparel of the deceased and at the instance of the accused prepared a memorandum which led to discovery of the weapon used in the crime. The memorandum has been marked as Ex. P-7 and the seizure list has been brought on record as Ex. P-8. Thereafter, on completion of other formalities the investigating agency filed the charge-sheet before the Competent Court which in turn committed the matter to the Court of Session and eventually the matter was tried by the learned Trial Judge. ( 4. ) THE accused abjured his guilt and pleaded that Mangia Bai was not his own mother, but was his mothers sister (Mausi Maa) and to grab the property of his father she had falsely implicated him. ( 5. ) THE prosecution in furtherance of its case examined Lamboo (P. W. 1), who had lodged the FIR, Mangia Bai (P. W. 2), the wife of the deceased and the eye-witness to the occurrence, Basanti (P. W. 3), son of chironji and brother of the accused, Bhaiya (P. W. 4), another son of the deceased, Hulka (P. W. 5), Khannulal (P. W. 6), is the son of Sohan Singh, near whose house the occurrence took place, P. W. 7 is Gangaram, son of Kalli, P. W. 8 is Munna, who is a post occurrence witness, P. W. 9 is Chotelal, a witness of seizure P. W. 10 is the Patwari, who has prepared the map, P. W. 11 is a formal witness, P. W. 12 is Dr. N. C. Jain, the Autopsy Surgeon, P. W. 13 is Rajaram a seizure witness, who had been declared hostile, Ramdayal (P. W. 14) and narayan Solanki (P. W. 15) are formal witnesses and P. W. 16 is R. C. Rajput, who had conducted the investigation. ( 6. ) ON behalf of the defence no witness was examined. ( 7. ) AS none had appeared for the appellant, as indicated above, we have heard Mrs. Chanchal Sharma, learned Counsel for the State, perused the impugned judgment and scanned the evidence brought on record in detail. We have also bestowed our anxious consideration to appreciate the documents that have been marked as Exhibits. Mrs. Chanchal Sharma, in support of the judgment of conviction has contended that the learned Trial Judge has not committed any error by convicting the accused/appellant for the offence punishable under Section 302, IPC and by no stretch of imagination the conviction can be converted to lesser one. It is also urged by her that the plea taken under Section 313 of the Cr. It is also urged by her that the plea taken under Section 313 of the Cr. PC that Mangia Bai was not real mother of the accused falls like part of the improperly built pillar inasmuch as there is no suggestion either to her or to any other witnesses, and in the absence of any suggestion a mere plea under Section 313 statement would not entitle the accused to get the benefit or even create a sense of doubt or suspicion in the mind of the Court and the learned Trial Judge, while dealing with the said issue has rightly arrived at the conclusion that there is no justification or reason on the part of the mother to implicate his son in a heinous crime of this nature, though there might have been difference of opinion with regard to many an issue. 7. The crux of the matter is whether P. W. 2 is to be believed or not and further whether there is any other material to corroborate the testimony of P. W. 2. Before we X-ray the testimony of P. W. 2, it is worth noticing that the doctor who had conducted the post-mortem, had found the following injuries on the body of the deceased :-" (1) Stab wound size 5 cm x 2 cm deep in to the thorack cavity up to 10 cm (ten cm) regular margin. Broader and towards laterally and topping effect towards medially. Injury is situated over vital aspect of thorax in 5th intercostal space obliquely directed towards inside and downwards blood clots presents over margins of injury. Injury is towards Rt. side of thorax injury is situated towards Rt. side and on opening the thorax it also punctured the Rt. lung and thoracic cavity is full of blood. (2) Stab wound size 7 cm x 2 cm x 8 cm over the veutero letral aspect of Lt. arm, the broader end is towards medially and sharp end towards laterally. The injury is directed in depth towards inside and downward deep up to bone and obliquely towards (far) medially. (3) Incised wound size 2 cm x 0. 5 cm over medially aspect of Rt. leg of mid part. Blood clots presents. (4) Stab wound size 1 cm x 0. 4 cm x 1. 5 cm just over the Rt. eye brow. Blood clots presents and margins regular. (3) Incised wound size 2 cm x 0. 5 cm over medially aspect of Rt. leg of mid part. Blood clots presents. (4) Stab wound size 1 cm x 0. 4 cm x 1. 5 cm just over the Rt. eye brow. Blood clots presents and margins regular. Broader end of injury towards laterally and sharp ends towards medially. All above injuries are area around the anus and over dhoti there is foecal matter present. " ( 8. ) THAT apart on a perusal of the serological report (Ex. P-7), it is clear and discernible that the items A, D and E reflected the blood stains. The learned Trial Judge has also placed reliance on the discovery of the knife at the instance of the deceased. There is nothing to disbelieve the factum that the weapon used in the crime was seized at the instance of the accused. There is material on record to indicate that the used knife was hidden by the accused which was with his special knowledge and hence, there is nothing to discard ex. P-7, the memorandum. Quite apart from the above the wearing apparels that were seized, were sent for serological examination and the report (Ex. P-17) clearly ex-posits that there had been blood stains. In this back drop we proceed to appreciate the evidence of P. W. 2. It is worth noting here that the accused has made a bald statement, recorded under Section 313, Cr. PC that mangia Bai is not his real mother. The mother possibly could have been a step mother or other had that been proved by the accused. On the contrary such a suggestion has not been given to Mangia Bai or to the brother or sister of the accused, namely, Basanti or Bhaiya Lal. In the absence of any kind of suggestion and any kind of proof, we are impelled to think that Mangia Bai is the mother of the accused. In this back drop what emerges from the evidence of the Mangia Bai is that she was accompanying her husband Chironji to the market and when they reached near the house of Sohan Singh, the accused who had hidden himself behind the stack of woods, came forward and stabbed chironji on the right side of the body. She has deposed that she shrieked and shouted to attract the attention of many persons. She has deposed that she shrieked and shouted to attract the attention of many persons. It is in her evidence that her children came to the spot, she has also stated about the theft of Rs. 500/-by the accused. In the cross-examination an attempt has been made to show that the money was not stolen and that they were inimically disposed towards each other. She had admitted in the cross-examination that she was going in front of Chironji was following her. She has also admitted that they have the habit of drinking but they had not drunk on that day. On perusal of evidence we do not perceive any kind of contradiction for which the testimony can be thrown overboard. Admission of drinking and hostility does not create any kind of concavity in her evidence. Basanti is P. W. 3, a small girl of 11 years and she has clearly stated that her parents had gone to market and P. W. 2 is her mother. The evidence is similar to effect of the brother, who has admitted to be the son of the deceased and the P. W. 2. There is no suggestion to any of these witnesses that Mangia Bai is the step mother. At this juncture it is profitable to refer to the evidence of Khannulal (P. W. 6), a young boy of 12, son of Sohan Singh, who had also stated about the occurrence. There has been some difference with regard to time but it can not be lost sight of the fact that the witnesses are adiwasis and it is not expected of them that they would be mentioning the exact time. The other discrepancies which have been highlighted do not really earn the status of contraction to make the evidence impeachable or incredible or not beyond reproach. There is no justification, rhyme or reason that the mother would implicate her own son in the murder of her husband, unless she had really seen it. Mangia Bai has stood embedded in her version, she had not thought it appropriate to forgive her son who had cruelly and brutally killed her husband. We see no reason to disbelieve the evidence of the aforesaid witnesses. In our considered opinion her testimony is absolutely unimpeachable, credible and can be relied upon. That apart her testimony also gets support from the other material on record. We see no reason to disbelieve the evidence of the aforesaid witnesses. In our considered opinion her testimony is absolutely unimpeachable, credible and can be relied upon. That apart her testimony also gets support from the other material on record. In view of this we are of the considered opinion that the learned Trial Judge has not committed any error in his appreciation of the evidence and arrived at the conclusion that the accused is guilty of the offence. ( 9. ) HISTORY records with candidness that sons have murdered their fathers for the sake of empire but here is a case where a son has murdered the father because of some kind of hidden vengeance as an allegation of theft was made against him. It is unthinkable that the mother would come to the Court and depose against him, despite the fact that the husband has passed away a year back when the evidence was recorded. When the lady has stood quite unshaken in her evidence it can be said that she has spoken truth and there is no reason to discard her version. ( 10. ) WE do not perceive any error in the judgment of conviction and order of sentence passed by the Learned Trial Judge. On a perusal of order sheet it transpires that this Court had released the appellant on bail in the last week of August, 2002. If the appellant has been released on bail, he be taken into custody forthwith. ( 11. ) RESULTANTLY the appeal stands dismissed. Criminal Appeal dismissed.