Lakhanpuri @ Sonu Baba S/o Daulatpuri v. State of M. P.
2007-04-27
W.A.SHAH
body2007
DigiLaw.ai
JUDGMENT W.A. Shah, J. 1. Both these appeals particularized above arise out of same judgment, hence this common judgment will govern their disposal. 2. The accused/appellants as arranged above have filed these appeals. 3. The accused/appellants and two others were put to trial before the learned First Additional Sessions Judge, Dhar in S.T. No. 337/02. The trial Court vide judgment dated 16-4-2004 at the conclusion of the trial reached the conclusion that accused/appellant Ashok @ Girdhari was guilty under sections 304 (Part-II) and 394/397 of the Penal Code and accused/appellant Lakhanpuri @Sonu Baba was guilty under Sections 304 (Part-II) read with 34 and under section 394 of the Penal Code. Accordingly Ashok has been sentenced under Section 304 (Part-II) of the Code to R.I. for 10 years and fine of Rs. 10.000-00 with a direction that in the event of default in the payment of fine he shall undergo R.I. for one year. Further he is sentenced under Section 394/397 of the Code to R.I. for 7 years and fine of Rs. 10,000-00 with a direction that default in fine payment would entail R.I. for one year. As also Lakhanpuri has been sentenced under Sections 304 (Part-II) read with 34 of the Code to R.I. for 10 years and fine of Rs. 10,000-00 with a direction that in the event of default in the payment of fine he shall undergo R.I. for one year. Further he is sentenced under Section 394 of the Code to R.I. for 7 years and fine of Rs. 10,000-00 with a direction that default in fine payment would entail R.I. for one year. All the sentences have been directed to run concurrently with clarification that sentences following defaults would be in addition and run separately. Hence, these appeals. 4. Material facts for the disposal of these appeals are that admittedly on 8-6-2002 deceased Balbir Singh a Contractor drew from Bank Rs. 1,10,000-00 and returning from Bank drove his motorcycle. While he was riding his motorcycle he was taken to other lonely way leading to village Khera. There past 2:30 PM he was attacked by knife resulting into his instant death. His motorcycle, golden chain, golden ring along with above cash were also looted. 5. According to prosecution Hyder Khan, (PW-16) at the relevant time passing through the place of incident noticed someone lying there in injured state.
There past 2:30 PM he was attacked by knife resulting into his instant death. His motorcycle, golden chain, golden ring along with above cash were also looted. 5. According to prosecution Hyder Khan, (PW-16) at the relevant time passing through the place of incident noticed someone lying there in injured state. He informed about it to Balbir Singh, (PW-1) who visited the spot and found that it was the dead body of Balbir Singh Contractor. (PW-1) Balbir Singh then lodged F.I.R. The same was reduced to writing as Ex.P/1 by Station House Officer Saleem Sheikh (PW-25). He then conducted inquest. The body of deceased was sent to Dr. U. K. Shrivastava (PW-22) for autopsy and thereon he found that he died due to incised wound (stab) on the right thigh causing excessive bleeding leading to shock and cardio-respiratory arrest. The autopsy report is Ex.P/29. As PW-25 further carried on the investigation he found that the two appellants were seen around the time of the incident with the motorcycle of the deceased near the scene of occurrence and the same was found abandoned little away. It was also seized other day of the incident vide Ex.P/23 by (PW-25) Saleem Sheikh. On the mirror of the motorcycle on examination finger prints of appellant Lakhanpuri were discovered vide Ex.P/39. 6. Both the appellants were taken into custody and interrogated. On the information and at the instance of appellant Ashok golden ring of the deceased was recovered from him along with blood stained clothes and knife vide Exs.P/18 and P/19 respectively on 1-8-2002. F.S.L. report Ex.P/34 was obtained regarding relevant articles. Investigation also showed that Arvind and Preeti Bai conspired with the appellants in the commission of above offences by them. Accordingly, the appellants and Arvind and Preeti Bai were charge-sheeted for offences of Sections 302, 394 and 120(B), Penal Code. On commitment of the case appellant Ashok was charged for offences of Sections 302, 394, 397, 398 and also of Section 120(B), Penal Code. appellant Lakhanpuri was charged for offences of Sections 302/34, 394 and 120(B), Penal Code. Arvind and Preeti were charged for offences of Section 120(B), Penal Code. They all pleaded not guilty. The case went to trial. Prosecution examined 25 witnesses in support of its case and the accused did not examine any witness.
appellant Lakhanpuri was charged for offences of Sections 302/34, 394 and 120(B), Penal Code. Arvind and Preeti were charged for offences of Section 120(B), Penal Code. They all pleaded not guilty. The case went to trial. Prosecution examined 25 witnesses in support of its case and the accused did not examine any witness. At the conclusion of the trial Arvind and Preeti have been acquitted and their acquittals have not been challenged as such we are not concerned with them. The appellants have however, been convicted and sentenced as stated above, thus feeling aggrieved thereby they have brought these appeals. 7. It is to be seen whether the impugned convictions and sentences are liable to be subverted. The prosecution case is based upon circumstantial evidence only. However, it is no weakness, because for a crime to be proved it is not necessary that the crime must be seen to have been committed and must in all circumstances be proved by direct ocular evidence by examining before the Court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. For this proposition reference may be made to, Pandurang Patil v. State of Maharashtra, (2004) 6 SCC 158 . But in order to sustain conviction the prosecution has necessarily to establish that the chain of circumstances not only consistently point to the guilt of the accused and is inconsistent with his innocence. Though by now it is a well settled principle and if any authority is required to be mentioned to support it I will refer to Vinod Kumar Mathurseva Malvia and Anr. v. Maganlal Mangal Das Gameti and others, (2006) 9 SCC 282 . 8. (PW-2) Radha Bai has deposed that at the relevant time she had seen appellant Lakhan driving a motorcycle and appellant Ashok accompanying him. (PW-20) Ram Singh has deposed that then on the motorcycle of the deceased he saw both the appellants. (PW-25) Saleem Sheikh, S.H.O. has deposed that he seized motorcycle bearing No. MP09/JM/4469 from unattended place in unclaimed state. He has also deposed that the seizure was made other day of the incident. (PW-27) Mohd. Sharief Khan has deposed that from the above motorcycle's mirror he got photograph being taken by departmental photographer of the finger prints. Report of the Finger Print Expert of Finger Print Bureau, Bhopal P.H.Q. has been exhibited as Ex.P/39 by (PW-25) Saleem Sheikh.
He has also deposed that the seizure was made other day of the incident. (PW-27) Mohd. Sharief Khan has deposed that from the above motorcycle's mirror he got photograph being taken by departmental photographer of the finger prints. Report of the Finger Print Expert of Finger Print Bureau, Bhopal P.H.Q. has been exhibited as Ex.P/39 by (PW-25) Saleem Sheikh. It shows that its mirror contained finger impressions of accused/appellant Lakhanpuri. The above evidence connects the appellants with the motorcycle of the deceased in close proximity of his killing. The appellants have not tried to explain the above circumstance. 9. (PW-25) Saleem Sheikh S.H.O. has deposed that on 1-8-2002 the appellant Ashok in custody disclosed that he had concealed ring and would lead to its recovery. Same was recorded in Ex.P/18. That at his instance he seized said ring vide Ex.P/19. Panch witnesses PW-7 Alok Pathak and PW-8 Abdul Kareem have not supported the prosecution yet they are proved to have gone hostile, therefore, no damage to prosecution can be seen even when they do not support the prosecution. PW-25 has remained intact in his cross-examination and there is nothing on record to find as to why he should falsely implicate the appellant Ashok. 10. (PW-3) Manjeet Kaur is the wife of deceased Balvir Singh. She has deposed that seized ring belonged to her husband who wore it at the relevant time. This identification is very natural and it does not require corroboration by test identification. Corroboration by test parade is a rule of prudence and circumstances of the case do not call for such corroboration. The accused/appellant Ashok has not explained his possession of said ring. In the circumstances as held by the Court below it leads to the inference of commission of robbery as well as culpable homicide under reference. The Court below has rightly relied in this respect upon Mukund v. State ofM.P., 1997 Cri.L.J. 3182 (SC). 11. The above evidence is of the required standard to maintain impugned convictions though evidence of discovery and seizure of articles said to be blood stained is of no value as the report of the Chemical Examiner vide Ex.P/34 does not disclose that any article contained human blood. Also report of Serologist vide Ex.P/35 shows that blood grouping was also not possible because of disintegration of some stains and control not being available for others.
Also report of Serologist vide Ex.P/35 shows that blood grouping was also not possible because of disintegration of some stains and control not being available for others. In this connection reference may be made to 7957 Cri.LJ. 1857 (SO). 12. The learned counsel for the appellant Lakhanpuri argued that evidence given by PW-2 Radha Bai and PW-20 Ram Singh to the effect that they saw the appellant in the vicinity of the scene of occurrence on motor-cycle is not corroborated by evidence of test identification as the same not having been got done, therefore, their evidence is of no avail to prosecution and calls for rejection to visit with exclusion of a portion of chain of circumstances. The argument did not impress me because both the above witnesses are independent and they corroborate each other. Here I may also express that Ram Singh deposed that appellants were seen by him at the relevant time on the motorcycle said to have belonged to the deceased is not barred by hearsay rule as the circumstances are conducive to the application of Section 6 of the Evidence Act. 13. In view of the above premises the impugned convictions are not to be interfered with. So far as sentences are concerned the appellants appear to be undergoing punishment in prison in other cases. They thus do not deserve any sympathy. The prayer of appellant Ashok that the period of sentence of this case be made concurrent with the sentence which he is undergoing also deserves to be rejected in the circumstances of the case. It is thus rejected. 14. In the result, both these appeals have no force. The appeals accordingly stand dismissed. No interference with order of Court below for property disposal is also made, in the circumstances. 15. Original judgment be retained in Criminal Appeal No. 623 of2004 and its copy be placed in Criminal Appeal No. 643 of2004. Appeals dismissed.