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Madhya Pradesh High Court · body

2007 DIGILAW 315 (MP)

Lokesh v. State of M. P.

2007-03-19

S.A.NAQVI, SHEELA KHANNA

body2007
JUDGMENT Khanna, J. -- 1. Both the abovementioned appeals arise out of the common judgment and order dated 31.1.1995 rendered by the Fourth Additional Sessions Judge, Vidisha, in ST No.59/90 and therefore they are being disposed of by this common judgment. By the said impugned judgment dated 31.1.1995, both the appellants Radhe1a1 and Lokesh have been convicted under section 302 of IPC and sentenced to undergo life imprisonment. 2. The case of the prosecution in brief, is that complainant Jaswant Singh (PW7) has a Betel shop (paan shop) situated at Bareth Road, Basoda. His father Bhogiram (deceased) was a rickshaw puller. On 11.11.1989 at 10:15 p.m., the complainant Jaswant Singh was in his shop and the deceased was sitting in his rickshaw standing near the shop. Appellants Radhelal and Lokesh alongwith one Noneet (acquitted accused) came to his shop and demanded cigarette on credit. Jaswant Singh refused to give cigarette to them on further credit, as there were earlier dues upon them. It is alleged that thereafter the appellant Radhelal started beating the complainant and seeing this incident the father of the complainant Bhogiram intervened and tried to save his son. Then appellant Radhelal inflicted Knife blow causing injury on his head and appellant Lokesh also inflicted injuries on the leg of the deceased by a sword. Accused Noneet pushed the deceased down. Complainant Jaswant Singh immediately rushed to the Police Station Basoda and lodged the first information report (Ex.P-12) upon which Crime No.473/89 was registered for committing an offence under section 307 of IPC. The deceased was taken to Basoda Hospital from where he was referred to Hamidia Hospital at Bhopal. On 12.11.1989 at around 11:45 p.m. the deceased succumbed to the injuries. Merg intimation was sent by Hamidia Hospital, Bhopal to the Police Station Talaiya Bhopal. Head Constable Rakesh Singh of P.S. Talaiya prepared the inquest memo on 13.11.1989 and sent the dead body for post-mortem. 3. Dr. Ashok Sharma (PW6) conducted the autopsy on the dead body of the deceased. He found (1) a stab wound over right frontal region vertical (saggital) lower end tapering upper end broad. Margins were clear cut situated 5 cm. rt. to mid line 3 cm. above the eye-brow having four stitches of size 2.8 cm. x 0.5 cm. (2) a stab wound on the right thigh anterior aspect with slicing on lower border of transverse size 5 cm x 1.5 cm. Margins were clear cut situated 5 cm. rt. to mid line 3 cm. above the eye-brow having four stitches of size 2.8 cm. x 0.5 cm. (2) a stab wound on the right thigh anterior aspect with slicing on lower border of transverse size 5 cm x 1.5 cm. Stitch marks were present over medial end broad. (3) a stab wound on right thigh medial aspect 1/3rd ragion. Stitch marks were present. Medial end broad 3 x 1 cm. with slicing on lower border. According to the doctor, all the injuries were ante-mortem in nature and the death of the deceased was due to shock and haemorrhage as a result of head injury. The injuries were caused by hard, sharp and penetrating object like knife. The death was found to be homicidal in nature. 4. During investigation, ASI, S.G. Dubey (PW9) prepared report (Ex.P3) and seized blood stained and plain earth in two separate containers vide seizure memo (Ex.P-1) and the statements of the witnesses under section 161 of CrPC were recorded by him. After death of the deceased, section 302 of IPC was added. On 13.11.1989 appellant Radhelal and Lokesh were arrested. It is stated that in pursuance of the disclosure statement (Ex.P-13) by appellant Radhelal, a knife was recovered vide seizure memo (Ex.P-13A) from tamarind tree situated at Bareth road. Similarly, on the basis of the disclosure statement (Ex.P-14) by appellant Lokesh, a sword was recovered vide seizure memo (Ex.P-14A. The-seized articles knife, sword, plain and blood stained and the underwear of the deceased recovered from the hospital, were sent for chemical examination and except on plain earth, blood was found on all the articles. 5. After investigation, charge-sheet was filed. Charge under section 302 of IPC was framed against both the appellants/accused and one co-accused Noneet. The appellants abjured their guilt and pleaded false implication. 6. At the trial, the prosecution examined in all 12 witnesses including the complainant Jaswant Singh (PW7), alleged eyed-witnesses Narendra (PW3), Buddha (PW4), Prem Singh (PW5) and Shameem Bhai (PW8), Dr. Ashok Sharma (PW6), who conducted the autopsy on the dead body of the deceased, S.G. Dubey (PW9) who partly investigated the matter and T.I. Arun Khemaria (PW12). No witness has been examined by the defence. Ashok Sharma (PW6), who conducted the autopsy on the dead body of the deceased, S.G. Dubey (PW9) who partly investigated the matter and T.I. Arun Khemaria (PW12). No witness has been examined by the defence. After conclusion of the trial and hearing the arguments of both the sides, the trial Court found and held that the prosecution has failed to prove its case against co-accused Noneet and acquitted him of the offence. But the trial Court held that the prosecution has successfully proved its case against the appellants Radhelal and Lokesh and convicted both of them under section 302 of IPC and sentenced them to suffer life imprisonment. Aggrieved by their conviction and sentence thereon, the appellants have preferred the present appeals. 7. The impugned judgment has been assailed on the ground that the learned trial Court has erred in placing reliance on the sole testimony of the complainant Jaswant Singh (PW7) who is related to the deceased and thus interested and partisan witness and his statement is full of contradictions. It is argued that in the FIR and the police statement complainant Jaswant Singh (PW7) has mentioned that appellant Radhelal inflicted a knife blow and appellant Lokesh inflicted a sword blow but in the statement before the Court he changed his version by saying that appellant Lokesh inflicted a knife blow and appellant Radhelal inflicted a sword blow. It is argued that the recovery of the alleged knife and sword has not been proved beyond doubt. The witnesses have not supported the prosecution case and the evidence of the complainant is not reliable. It is submitted that from the report of the Chemical Examiner it is not proved that the blood found on the articles was human blood. It is submitted that when the appellants were said to have gone to Betel shop to take cigarette and they were unarmed that it is not explained as to how all of a sudden the alleged weapons came in the hands of the appellants. On the above ground, learned counsel for the appellants submitted that the prosecution story is doubtful and it is prayed that the appellants be acquitted. 8. On the above ground, learned counsel for the appellants submitted that the prosecution story is doubtful and it is prayed that the appellants be acquitted. 8. Per contra, the arguments and submissions of the learned PP for the respondent-State is that the complainant Jaswant Singh (PW7) has fully supported the prosecution story, which is corroborated by medical evidence and by recovery of weapons and there is nothing on record to falsely implicate the appellants. It is argued that the trial Court has rightly convicted the appellants under section 302 of IPC and sentence thereon is proper. 9. We have gone through the entire evidence on record and considered the submissions of the learned counsel for the parties. 10. It is not disputed that the deceased Bhogiram s/o Mangilal has died and the complainant Jaswant Singh (PW7) is his son. The first question for consideration is as to whether the death of the deceased was homicidal in nature? 11. Complainant Jaswant Singh (PW7) has deposed that appellant/accused Lokesh inflicted a knife blow on the head of his father Bhogiram and appellant-accused Radhelal inflicted a sword blow on the leg of his father. He stated that his father fell down on the spot. Then he went to the Police Station Basoda and lodged the report (Ex.P-12). According to him, his father was admitted to Basoda Hospital and on the same night he was taken to Bhopal and was admitted in the hospital at Bhopal. He stated that on 12.11.1989 his father died in night. 12. Dr. Ashok Sharma (PW6) was posted as a Medical Officer at Medico Legal Institute, Bhopal. He stated that on 13.11.1989 he conducted the autopsy on the dead body of deceased Bhogiram s/o Mangilal and during examination, the following injuries were found on the person of the deceased : (1) Stab wound over right frontal region vertical (saggital) lower end tapering upper end broad. Margins were clear cut situated 5 cm.rt. to mid line 3 cm. above the eye-brow having four stitches of size 2.8 cm x 0.5 cm. It has entered in the cranial cavity by cutting right frontal bone which is also of similar look. Size 2.5 cm x 0.3 cm upper end broad and lower (anterior) end tapering. It has punctured the dura than right frontallape and has gone obliquely in cornal place and has opened the right lateral vertical. It has entered in the cranial cavity by cutting right frontal bone which is also of similar look. Size 2.5 cm x 0.3 cm upper end broad and lower (anterior) end tapering. It has punctured the dura than right frontallape and has gone obliquely in cornal place and has opened the right lateral vertical. The verticle is full of clotted blood. Total hole is 11 cm subdural haemorrhage. This layer present along the tract. (2) Stab wound on the right thigh anterior aspect with slicing on lower border of transverse size 5 cm x 1.5 cm. Stitch marks were present over medial end broad. It has cut the hamstring group of muscle on the mid and travelled upwards backwards within the muscle for a length of 7 cm. (3) Stab wound on right thigh medial aspect 1I3rd region. Stitch marks were present. Medial end broad 3 x 1 cm with slicing on lower border. It has also cut the so_um muscle and lower part of the hamstring group of muscle slightly upwards backwards medially for a length of 6 cm. Dr. Sharma clearly deposed that the injuries were ante-mortem in nature and they were caused by some hard sharp and penetrating object like knife. He deposed that the death of the deceased was due to shock and haemorrage as a result of head injury and that the death of the deceased was homicidal in nature. His post-mortem report is EX.P-9. In his short cross-examination, nothing has come out to disbelieve his version. Thus, from the post-mortem report (Ex.P-8), the trial Court rightly held that the death of the deceased Bhogiram s/o Mangilal was homicidal in nature. 13. Now, the next question for consideration is as to whether the 'appellants Radhelal and Lokesh intentionally caused the death of deceased by inflicting knife and sword blows to him? 14. Narendra (PW3), Buddhu (PW4), Prem Singh (PW5) and Pappu (PW1) are stated to be eye-witnesses of the incident. But they have not supported the prosecution case and all these witnesses have denied to have seen the incident. These witnesses have been declared hostile and cross-examined by the prosecution but they denied to be witnesses of the incident. Thus, the prosecution does not get any support from their version. 15. Complainant Jaswant Singh (PW7) is the star witness of the case, who is son of the deceased. These witnesses have been declared hostile and cross-examined by the prosecution but they denied to be witnesses of the incident. Thus, the prosecution does not get any support from their version. 15. Complainant Jaswant Singh (PW7) is the star witness of the case, who is son of the deceased. He deposed that on 11.11.1989 at 10: 15 p.m. in night, he was at his betel shop. Appellants Radhelal, Lokesh and one Noneet Raghuvanshi came to his shop. Appellant Radhelal demanded cigarette on credit. But he refused and asked him to make payment of the earlier dues whereupon, appellant Radhelal started giving slaps to him. His father Bhogiram was sitting in the rickshaw near his shop. When appellant Radhelal was beating him, his father. Bhogiram came to his rescue. Then, there was jhuma jhatki and gali galoch between his father and appellant Radhelal. Complainant Jaswant Singh (PW7) further deposed that meanwhile, accused Lokesh came and inflicted a knife blow on the head of his father and accused Radhelal also assaulted with a sword on the leg of his father. What he tried to save his father, co-accused Noneet caught hold of him. Complainant further stated that thereafter his father fell down and the appellants ran away from the spot. Then, he rushed to the Police Station Basoda and lodged the report (Ex.P-12). After report he took his father to Basoda hospital and in the same night his father was taken to Hamidia Hospital at Bhopal. Next day on 12.11.1989 at around 16. The Investigating Officer Arun Khemaria (PW12) was posted as TI at PS Basoda at the relevant time. He corroborated the statement of Jaswant Singh that on 11.11.1989 at 10:20 p.m. in night, Jaswant Singh came to the police station and lodged the report (Ex.P-12) which was written by him. He also stated that after report he recorded the statement of Jaswant Singh. The incident occurred on 10:15 p.m. and the report (Ex.P-12) has been lodged promptly within 5 minutes at 10:20 p.m. Complainant Jaswant Singh (PW7) has made it clear that the police station is hardly at the distance of 1/2 kilometer away from his Betel shop. In the report (Ex.P-12) also the complainant has clearly named accused Radhelal and Lokesh as assailants who inflicted a knife blow on the head and a sword blow on the leg of his father. 17. In the report (Ex.P-12) also the complainant has clearly named accused Radhelal and Lokesh as assailants who inflicted a knife blow on the head and a sword blow on the leg of his father. 17. It is true that in the first information report (Ex.P-12), complainant Jaswant Singh has mentioned that accused Radhelal inflicted a knife blow on the head of his father and accused Lokesh assaulted with a sword on the leg of his father whereas in his statement before the Court he deposed that it was accused Lokesh who inflicted a knife blow on the head of his father and accused Radhelal inflicted a sword blow on the leg of his father. It is possible that looking to severe injuries inflicted on his father, this witness in a shocking and mental state lodged the report and could not correctly mention at the stage, as to who had inflicted knife blow and who had inflicted sword blow. But it is pertinent to note that in the report (Ex.P-12) and in his statement before the Court he named both the appellants Radhelal and Lokesh and also made it clear that the assault was made by the knife and sword and thus he has not changed the names of the person who assaulted and not changed the names of the weapons used by them. Now, if we consider the statement of TI Arun Khemaria (PW12) that Jaswant Singh lodged the report (Ex.P-12) and he also recorded his police statement it is found that complainant Jaswant Singh had mentioned that accused Radhelal assaulted with a knife on the head of his father and accused Lokesh assaulted with a sword on the leg of the deceased. The age of the complainant at the relevant time was 16 years and his statement before the Court was recorded after around 3 years. So it is equally possible that after lapse of time he could not remember as to whether accused Lokesh inflicted a knife blow or accused Radhelal inflicted a knife blow. We have meticulously considered the whole version of the complainant Jaswant Singh (PW7) and we find that except this inconsistency there is no other material inconsistency or contradiction in his statement. Looking to his total statement, we do not consider this difference of causing injury by knife by Lokesh or by Radhelal as a material one. We have meticulously considered the whole version of the complainant Jaswant Singh (PW7) and we find that except this inconsistency there is no other material inconsistency or contradiction in his statement. Looking to his total statement, we do not consider this difference of causing injury by knife by Lokesh or by Radhelal as a material one. It is clear from the version of Jaswant Singh (PW7) that both the accused Radhelal and Lokesh caused injuries on the head and leg of the deceased by knife and sword. 18. During the cross-examination of the complainant Jaswant it was tried to suggest by the defence that there was darkness on the spot and it was not possible to see the actual assailants. But Jaswant Singh has denied this suggestion and clearly disclosed in para 10 of his statement that tubelight of his Betel shop was on and there was light on the road by this tubelight. Similarly, in cross-examination, a suggestion has been given by the defence that there was enmity between his father and both the appellants but it has also been denied by the complainant. It is important to note that both the appellants Radhelal and Lokesh in their statements recorded under section 313 of CrPC could not dare to take this defence that there was enmity between the deceased and these appellants. On the contrary, these appellants in their statements have stated that they do not know the deceased and the witnesses whereas no such suggestion has been given in the cross-examination of the complainant that the accused-appellants were not known to him or his father from before. 19. The contention of learned counsel for the appellant is that Jaswant Singh (PW7) is son of the deceased and the relatives are interested witnesses but it is not disputed that the complainant was in betel shop on the spot where the incident took place and therefore, the presence of complainant Jaswant Singh is quite natural on the spot. It is then argued on behalf of appellants that the independent witnesses have not supported the case of prosecution. But, it has been experienced that nowadays independent witnesses tried to avoid to give statement even after witnessing incident and they do not want to indulge themselves in the dispute of others perhaps they feel unsecure in giving the statement. It is then argued on behalf of appellants that the independent witnesses have not supported the case of prosecution. But, it has been experienced that nowadays independent witnesses tried to avoid to give statement even after witnessing incident and they do not want to indulge themselves in the dispute of others perhaps they feel unsecure in giving the statement. If witnesses have denied to have seen the incident then on this ground alone the evidence of Jaswant Singh (PW7) cannot be brushed aside, who promptly lodged the report within 5 minutes and who had no previous enmity with the appellants. The evidence of the complainant is further corroborated from the medical evidence as from the PM report (Ex.P-9) stab wounds were found on the head and also on the leg of the deceased. 20. So far as recovery of the knife and sword is concerned. ASI S.G. Dubey (PW9) has stated that on 14.11.1989 at 2:35 p.m. appellant Radhelal in police custody disclosed to have kept and hidden a knife on tamarind tree at Bareth Road and his memorandum EX.P-13 was prepared before witnesses Hamir Singh and Gopal Singh. He further stated that on 14.11.1989 he interrogated accused Lokesh and he disclosed to have kept and hidden a sword on tamarind tree at Bareth Road vide his memorandum EX.P-14. Thereafter both the appellants and the witnesses were taken to Bareth Road and accused Radhelal got recovered vide seizure memo (Ex.P13A) a knife, and accused Lokesh got recovered a sword vide seizure memo (Ex.P-14A). But the two witnesses of the above memorandums and seizure memos namely Hamir Singh and Gopal Singh have not been examined by the prosecution before the trial Court. No plausible explanation is on record for non-examination of these two witnesses. Similarly both the appellants have been arrested on 13.11.1989 but the alleged memorandums (Ex.P-13 and P-14) were recorded on 14.11.1989. There is nothing on record to indicate delay for recording the memorandums. Thus, the possibility of using third degree method in recording the alleged memorandums is not ruled out. It is also noted that Tamarind tree from where the alleged knife and sword have been recovered is situated at Bareth Road which appears to be a common passage where anyone can go. Thus, the possibility of using third degree method in recording the alleged memorandums is not ruled out. It is also noted that Tamarind tree from where the alleged knife and sword have been recovered is situated at Bareth Road which appears to be a common passage where anyone can go. Moreover the said knife and sword were not exhibited at the time of statements of the witnesses and therefore, it is not clear as to which knife or sword was recovered from which accused persons. Thus, the alleged memorandums by the appellants and seizure memos of knife and sword are not found established. But it would not adversely affect the prosecution case. There is clear convincing evidence of Jaswant Singh (PW7) that both the appellants-accused Radhelal and Lokesh inflicted injuries to his father by means of knife and sword, resulting in his death. 21. Now, it has to be considered whether appellants-accused Radhelal and Lokesh shared common intention to cause the injuries to the deceased? 22. This aspect has been considered by the learned trial Court in paras 30, 40, 41 and 42 of the impugned judgment. The learned trial Court has considered that from the charge and from the statements of accused under section 313 CrPC, it can be presumed that both the appellants have knowledge that they have been jointly prosecuted for the murder of the deceased. The trial Court has also considered this aspect that looking to the evidence no prejudice to the accused appears in not framing the charge under section 34 of IPC. The trial Court has rightly concluded that looking to the facts and circumstances of the case it can easily be gathered that both the appellants shared common intention to cause injuries to the deceased and therefore, they have committed the offence in furtherance of their common intention. However, it is surprising that in spite of the said conclusion, the learned trial Court at the time of operative para of the impugned judgment convicted both the appellants under section 302 of IPC and not under section 302/34 of IPC. It simply appears that inadvertently in the impugned judgment the learned trial Court in the end has convicted both the appellants under section 302 of IPC. But we agree with the earlier finding of the trial Court that both appellants shared common intention for causing injuries to the deceased. 23. It simply appears that inadvertently in the impugned judgment the learned trial Court in the end has convicted both the appellants under section 302 of IPC. But we agree with the earlier finding of the trial Court that both appellants shared common intention for causing injuries to the deceased. 23. Thus, the evidence of complainant Jaswant Singh (PW7) is fully reliable and his testimony is corroborated by promptly lodged report and also by medical evidence and it is proved that both the appellants Radhela1 and Lokesh caused injuries to the deceased by knife and sword. 24. The last question for consideration as to whether the intention of the appellants was to cause the death of the deceased? 25. It has come in the evidence of Jaswant Singh that he was in his Betel shop when appellants came to his shop and demanded cigarette. He refused to give cigarette and told them to clear their earlier dues. When there was discussion between them then the deceased Bhogiram came on the spot. Jaswant Singh has also stated that there was "Jhuma Jhatki and Gali Galoch" between his father and the appellants and thereafter the appellant caused injuries by knife and sword. It is equally clear that there is no evidence that when the appellants came and at that time they had knife or sword with them. After demand of cigarette and discussion between the deceased and appellants, the deceased came on the spot and then there was Jhuma Jhatki between the deceased and appellants and then the injuries were caused to the deceased. Jaswant Singh (PW7), in para 8 of his statement, has clearly stated that there was no previous enmity of the appellants with his father. He admitted that the quarrel suddenly took place and there was no previous dispute between them. He also admitted that the appellants has not come with the intention to cause any injury to him and his father. Thus, it is amply clear that the incident occurred suddenly and under the heat of passion the appellants inflicted injuries by knife and sword. Under these circumstances, it could not be gathered that the intention of both the appellants was to cause the death of the deceased and the offence does not fall under section 302 of IPC. Thus, it is amply clear that the incident occurred suddenly and under the heat of passion the appellants inflicted injuries by knife and sword. Under these circumstances, it could not be gathered that the intention of both the appellants was to cause the death of the deceased and the offence does not fall under section 302 of IPC. From the evidence of Jaswant Singh (PW7), it is clear that only one blow by knife and one blow by sword were caused to the deceased though in his post-mortem report three stab wounds one on the head and two of the thighs were found. But from the version of the complainant Jaswant (PW7) who is eye-witness of the incident, it is clear that only one blow was given by knife and one blow was given by sword. Looking to the nature of the injuries and in the facts and circumstances of the case, it can be said that the offence committed by the accused is culpable homicide not amounting to murder and punishable under section 304 (Part I) of IPC. Thus, the conviction of appellants under section 302/34 is not sustainable and instead the appellants are convicted under section 304 (Part 1) of IPC. 26. As far as sentence is concerned the submission of learned counsel for the appellants is that appellant Lokesh was a juvenile at the time of incident and appellant Radhelal was a boy of 19-20 years of age. It is submitted that appellant Lokesh has already suffered imprisonment of more than 22 months and appellant Radhelal has suffered imprisonment of around 38 months. It is submitted that within these 17 years of the incident both these appellants have been married and have settled their lives and looking after their families. They had no previous criminal history. After the incident also there is no report against them regarding any criminal activity. It is, therefore, prayed that a sympathetic view be taken while awarding sentence. 27. In the arrest memos of the appellants, the age of the appellant Lokesh is mentioned as 19 years of age and appellant Radhelal of 20 years of age. No document has been filed to show that Lokesh was juvenile at the time of incident. But it is clear that at the time of incident both the appellants were young boys of 19-20 years of age. They have no previous criminal history. No document has been filed to show that Lokesh was juvenile at the time of incident. But it is clear that at the time of incident both the appellants were young boys of 19-20 years of age. They have no previous criminal history. The incident is of the year 1989. Thus, they have suffered mental agony of this case for more than 17 years. From the records it appears that appellants Radhelal has already suffered imprisonment for more than 38 months and appellant Lokesh has suffered imprisonment of 22 months. Now, they have settled after their marriage and looking after their families. We think that no useful purpose would be served to send them again to jail after a lapse of 17 years of period. Thus, looking to the entire facts and circumstances of the case the sentence of imprisonment already suffered by both the appellants with enhancement of fine to the tune of Rs.10,000/- (Rupees Ten thousand only) each would meet the ends of justice. 28. Consequently, Criminal Appeal No.97/95 and Criminal Appeal No. 104/95 are partly allowed. The conviction of the appellants under section 302 (302/34) of IPC is set aside and instead both appellants are convicted under section 304 (Part 1) of IPC and each of them are sentenced to suffer imprisonment already undergone with a fine of Rs.10,000/- (Rupees Ten thousands only) each. On failure to deposit the fine amount they shall further suffer imprisonment of one year RI. Out of the amount of fine Rs.10,000/- (Rupees Ten thousands only) shall be paid to the complainant Jaswant Singh towards compensation.