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Madhya Pradesh High Court · body

2007 DIGILAW 295 (MP)

Velsingh S/o Durjan Bheel v. State of M. P.

2007-03-13

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2007
JUDGMENT : S.L. KOCHAR, J. 1. The appellant has challenged his conviction under section 302 of the Indian Penal Code sentenced to R. I. for life by judgment passed by learned Additional Sessions Judge, Jobat District Jhabua in Sessions Trial No. 370/1994 dated 19-4-2001 by filing this appeal. 2. According to the prosecution case, on 23-4-1994, in the evening at 5.30 p.m. deceased Sursingh was sleeping outside his hut near culvert situated in Village Badi Semalkhedi. His son Madhu (PW-1) was taking his food sitting on a cot at some distance from his father. At that moment, appellant the brother of deceased Sursingh and uncle of PW-1 Madhu reached over there having axe in his hand and while saying that Sursingh was picking up quarrel everyday with him after consuming liquor, therefore, he will not leave him alive. With this utterances appellant dealt axe blow on the person of Sursingh, who was sleeping. The blow fell on right side of the ear and skull. He again dealt second blow on right side of the skull. Madhu (PW-1) raised cry. At that time, on a nearby hand-pump, Samtu (PW-3), aunt of complainant Madhu was present and witnessing the incident. Mohbai (PW-2), wife of deceased also reached on the spot, who was grazing cattle near culvert. She also saw appellant standing having axe near her husband. On arrival of Mohbai (PW-2), appellant fled away. Deceased died on the spot. Madhu (PW-1) went to Police Station and lodged the report Ex.P/1. Police started investigation and after performing inquest proceeding sent the dead body for postmortem examination, which was performed by Dr. Moti Singh (PW-5). The postmortem report is Ex.P/4. After arrest of the appellant, at his instance axe and his clothes were seized through seizure memo Ex.P/13. Seized articles were sent to Forensic Science Laboratory and its reports are Ex.P/14 and P/15. After completion of investigation, appellant was charge-sheeted for the offence under section 302 of the Indian Penal Code. 3. Appellant denied the charges, therefore, put on trial. He has not examined any witness in defence. Learned trial Court, on the basis of the evidence adduced by the prosecution, found the appellant guilty of commission of murder of his brother Sursingh and sentenced him as mentioned here-in-above. 4. None present for the appellant, though this appeal is listed for final hearing in daily as well as weekly cause list. Learned trial Court, on the basis of the evidence adduced by the prosecution, found the appellant guilty of commission of murder of his brother Sursingh and sentenced him as mentioned here-in-above. 4. None present for the appellant, though this appeal is listed for final hearing in daily as well as weekly cause list. In the last week also this appeal was listed for final hearing on 6-2-2007, 7-3-2007, 8-3-2007 and 12-3-2007, but none appeared, although power has been filed by the Advocates on behalf of the appellant. This is the appeal of the year 2001 and appellant is in jail from about 7 years. Therefore, in view of the Supreme Court judgments passed in case of Beni Singh vs. State of U.P. AIR 1996 SC 2439 and Kishan Singh vs. State of U.P. AIR 1996 (9) SC 372, we have heard this appeal on merit in absence of the counsel for the appellant and with the assistance by learned Dy. A.G. Shri Girish Desai. 5. On perusal of the impugned judgment and entire record, we gathered that conviction of the appellant is mainly based on eye-witnesses account corroborated by medical evidence, recovery of axe from the appellant and Forensic Science Laboratory report. First of all, we would like to deal with the eye-witnesses account. Madhu (PW-1) son of deceased, a child witness has deposed that on the date of incident in the evening at 4.00 p.m. his father Sursingh was sleeping on the cot and he was taking food sitting underneath tamarind tree. At that juncture, appellant Velsingh, having axe reached over there and dealt axe blow on head and back portion of the deceased. Deceased died on the spot. Further say of this witness is that appellant caused 3 axe blows and at that time his aunt Samtu (PW-3) was standing near the hand-pump who also witnessed the incident. His mother Mohbai (PW-2) was also present somewhere nearby and witnessed the incident. The appellant after causing axe blow ran away from the spot. This witness immediately proceeded to lodge the report along with his cousin brother Karan and Bandu (PW-4). He accepted lodging of report Ex.P/1. According to this witness, there was no inimical term or quarrel between his family and the appellant. The appellant after causing axe blow ran away from the spot. This witness immediately proceeded to lodge the report along with his cousin brother Karan and Bandu (PW-4). He accepted lodging of report Ex.P/1. According to this witness, there was no inimical term or quarrel between his family and the appellant. According to the FIR (Ex.P/1), date and time of incident is 23-4-1994 at 5.30 p.m. and the report was lodged the same day in the night at 10.00 p.m. The distance of Police Station was 12 Km. from the village of the complainant. In cross-examination, this witness has been contradicted with FIR Ex.P/1 on the point of time of incident. In the Court, he deposed the time of incident 4.00 p.m. whereas in the report time is mentioned at 5.30 p.m. the learned trial Court discussed this aspect in the impugned judgment and held that looking to the age, illiteracy and background of the witness this variation regarding time of incident is not very material. We have also considered the statement of this witness and on overall perusal of the statement, we do not find any material to say that he did not witness the incident and lodged the false report Ex.P/1. The incident occurred in front of his house, where his father was sleeping near tamarind tree. There are some contradictions in his statement in the Court with contents of FIR (Ex.P/1) i.e. about utterances of Sursingh and total blows and number of injuries sustained by the deceased. According to the post-mortem report, deceased sustained two injuries caused by hard and sharp object, but according to this witness appellant dealt 3 blows. These contradictions are not very material. Possibility of third blow not lending on the person of the deceased could not be ruled out because immediately after assault Samtu(PW-3) raised cry and also saying the appellant “don't assault.” Madhu (PW-1) denied tutoring and lodging of the report at the instance of Bandu (PW-1) denied tutoring and lodging of the report at the instance of Bandu (PW-4) against the appellant. There is no material on record that as to why Bandu will suggest the name of the appellant who lodged the report. There is no material on record that as to why Bandu will suggest the name of the appellant who lodged the report. Bandu (PW-4) has admitted going to Police Station along with witness Madhu and lodging of report by Madhu, but he has not supported the version of Madhu about assault to deceased by appellant and has been declared hostile by the prosecution. There is no evidence on record regarding any kind of ill-will between the families of the appellant and the deceased, who is the real brother of appellant. It has come in evidence that deceased was having some criminal antecedent and facing prosecution, but there is absolutely no evidence that he was having any kind of litigation with appellant Velsingh. It is well settled legal position that absence of motive would not play vital role when incident is supported by eye-witnesses account. The presence of eye-witnesses Madhu (PW-1), Mohbai (PW-2) wife of deceased and Samtu (PW-3) on or near the place of incident was very natural. They were residing where incident occurred, just in front of the house of the deceased, where he was sleeping on a cot. 6. In the statement of Mohbai (PW-2) some contradictions have come regarding place of her presence and number of blows caused by appellant. For the sake of argument Madhu (PW-1) and Mohbai (PW-2) may be considered as interested witness but Samutu (PW-3), the wife of brother of appellant as well as deceased cannot be considered interested and partisan witness. In her statement no improvements, omissions or contradictions are available. No suggestion was given to this witness in cross-examination regarding any kind of ill-will or bad blood between her and the appellant. The name of this witness is figured in the First Information Report (Ex.P/1) lodged by Madhu (PW-1). Name of Mohbai (PW-2) is also mentioned in the FIR as witness who saw the incident. In this state of affairs, we do not find any illegality in the impugned judgment wherein the learned trial Court placed reliance on Madhu (PW-1), Mohabai (PW-2) and Samtu (PW-3). The statement of Madhu is corroborated by the FIR Ex.P/1 and statements of Mohbai (PW-2) and Samtu (PW-3) as well as medical evidence of Dr. Moti Singh (PW-5). In this state of affairs, we do not find any illegality in the impugned judgment wherein the learned trial Court placed reliance on Madhu (PW-1), Mohabai (PW-2) and Samtu (PW-3). The statement of Madhu is corroborated by the FIR Ex.P/1 and statements of Mohbai (PW-2) and Samtu (PW-3) as well as medical evidence of Dr. Moti Singh (PW-5). It is true that in cross-examination Madhu (PW-1) and Mohbai (PW-2) have admitted that villagers were in search of deceased for assaulting him, but merely because of this admission, it could not be said that villagers had assaulted the deceased because there is absolutely no material on record for mentioning the name of the appellant, who is the real uncle of Madhu (PW-1), brother-in-law of Mohbai (PW-2) and Samtu (PW-3) 7. Madhu (PW-1) and Mohbai (PW-2) have stated about causing 3 blows by an axe whereas Dr. Moti Singh (PW-5) found 4 incised injuries caused by sharp edged weapon and 2 lacerated wound caused by hard and blunt object. This contradiction is clear from the eye witness Samtu (PW-3), who has deposed that the appellant started assaulting deceased by an axe and she shouted while standing on hand-pump telling the appellant “don't assault - don't assault”. She has not given number of blows and in cross-examination also no such question was put to her. According to this witness appellant started assaulting deceased by an axe and caused injuries on his head. The learned trial Court dealt with this issue in the impugned judgment and held that because of causing continuous blow possibility of causing injury by blunt side of the axe could not be ruled out. 8. In our considered view, possibility of sustaining injury by blunt side of the axe by the deceased, could also be because of diversion of attention of appellant due to shouting of his real sister-in-law Samtu (PW-3). Autopsy Surgeon Dr. Moti Singh (PW-5) has noted almost all the injuries on right parietal and temporal region. In his opinion, there was fracture of temporo-parietal bone. Clotted blood was present underneath the skin as well as on right parieto-temporal region of the skull. The injuries were ante-mortem in nature and sufficient in ordinary course of nature to cause death. The deceased died because of Neurogenic shock due to head injuries and death was homicidal in nature. In his opinion, there was fracture of temporo-parietal bone. Clotted blood was present underneath the skin as well as on right parieto-temporal region of the skull. The injuries were ante-mortem in nature and sufficient in ordinary course of nature to cause death. The deceased died because of Neurogenic shock due to head injuries and death was homicidal in nature. Deceased died within 24 hours from the date and time of post-mortem examination i.e. on 24-4-1994 at 11.00 a.m. 9. The learned trial Court placed reliance on the recovery of axe and Forensic Science Laboratory report Ex.P/14 and P/15. But, according to us, since no human blood was found on any of the articles and tallying with the blood group of deceased hence this evidence is of no use. Even after excluding this evidence there is overwhelming evidence as discussed here-in-above about the culpability of the appellant. 10. Resultantly, we do not find any substance in this appeal. Therefore, same is dismissed.