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Madhya Pradesh High Court · body

2012 DIGILAW 291 (MP)

Pappu alias Satyendra v. State of M. P.

2012-03-13

M.A.SIDDIQUI

body2012
JUDGMENT : Appellant has filed this appeal against the judgment dated 8th August, 1996 delivered by the then 2nd Addl. Sessions Judge, Jabalpur in Sessions Trial No. 636/95, convicting the appellant under Section 304 Part-II IPC and sentencing him to undergo four years' R.I. 2. It is undisputed that appellant Pappu @ Satyendra was tried with co-accused Ramesh and Shakuntala. Ramesh and Shakuntala were tried for offence punishable under Section 201 IPC whereas appellant was tried for offence punishable under Section 302, IPC. Co-accused Ramesh and Shakuntala were acquitted by the trial Court. Though appellant was acquitted under Section 302 IPC, but he was convicted and sentenced under Section 304 Part-II of IPC for committing homicidal death not amounting to murder of Lalji. It is also an admitted fact that deceased Lalji was father of appellant. 3. In brief, the prosecution case is that on 4.5.95 at 00.35 AM in the night, M.L.Choudhary,Compounder of Victoria Hospital, Jabalpur informed PS-Omti, Jabalpur that at 12 midnight, Lalji Yadav was admitted in an injured condition and he succumbed to the injuries within 30 minutes. On this Marg 12/95 was registered. At the time of admission of injured in the Victoria Hospital it was informed that Lalji got injuries by fall on stones as he was in heavy drunken condition. Marg was inquired and inquest of dead body was done by the police and postmortem was performed. It was revealed that appellant caused injuries by Katar (a knife) in the night between 9-10 PM on 3.5.95. Incised wounds were found in the postmortem examination. Appellant was arrested along with other co-accused. Appellant gave memorandum statement under Section 27 of Evidence Act and got seizure of Katar (knife) from the house of his friend Bablu at the instance of appellant. Dr. D.K.Sakalle (PW.6) was asked vide letter (P.11) that whether injuries to deceased could have been caused by such Katar and the doctor gave affirmative answer in query. 4. After usual investigation, charge sheet was filed. The then Chief Judicial Magistrate, Jabalpur registered Criminal Case No.2415/95 and committed the case for trial on 5.10.95 to the Court of Sessions. Appellant was tried in the Sessions Court and ST No. 636/95 was registered. On 15.11.95, the then 2nd Addl.Sessions Judge, Jabalpur framed the charge under Section 302 of IPC against appellant Pappu @ Satyendra Yadav for causing murder of Lalji Yadav. 5. Appellant was tried in the Sessions Court and ST No. 636/95 was registered. On 15.11.95, the then 2nd Addl.Sessions Judge, Jabalpur framed the charge under Section 302 of IPC against appellant Pappu @ Satyendra Yadav for causing murder of Lalji Yadav. 5. Appellant abjured the guilt and contended that he has been falsely implicated. 6. To substantiate its case, prosecution examined Munnalal Yadav (PW.1), Bablu @ Kamrudzama (PW.2), Noorjahan (PW.3), Ramu Mourya (PW.4), Ishwardeo (PW.5), Dr.D.K.Sakalle (PW.6), Rajesh Kumar (PW.7), Rameshdatt Choubey (PW.8), Dr.A.K.Sinha (PW.9), Sohanlal Yadav (PW.10), H.L.Guru the then Station House Officer, Omti (PW.11), Gopalsingh Parihar, Sub-Inspector of Police (PW.12) and Rajendra Shukla Head Constable (PW.13). 7. Learned trial Judge, after appreciating the evidence on record, convicted and sentenced the appellant under Section 304 Part-II of IPC instead of Section 302 IPC for committing homicidal death not amounting to murder of Lalji. 8. This appeal has been filed on the ground that trial Court erred in convicting the appellant under Section 304 Part-II IPC. The case was based only on circumstantial evidence and appellant has been convicted only on the uncertain evidence of memorandum under Section 27 of Evidence Act and on recovery of Katar and on the statement of Investigating Officer without due corroboration and support from independent witnesses and scientific tests. 9. As far as death is concerned, Gopal Singh Parihar (PW.12) stated that on 4.5.95 at about 00.35 AM when he was posted as Sub- Inspector of Police at PS-Omti, Jabalpur, Compunder of Victoria Hospital, Jabalpur, namely, M.L.Choudhary telephonically informed him that Lalji who was brought in injured condition in the hospital at about 12 midnight, died at about 12.30 AM. So, the witness recorded Marg 15/95 under Section 174 of Cr.P.C. vide Ex.P/25. H.L.Guru (PW.11), the then Station House Officer of PS-Omti, Jabalpur stated that as Lalji Yadav S/o Rambharose Yadav, aged 50 years, R/o Chhoti Omti was informed to be dead, so he went to Victoria Hospital and gave notice for inquest vide Ex.P/1 to the witnesses and then he found that there was injury in his stomach. He made the inquest and sent the dead body for postmortem. Dr.A.K.Sinha (PW.9) stated that when he was posted as Assistant Surgeon at Victoria Hospital, Jabalpur, Lalji Yadav was brought in injured condition. He found incised wound measuring 1 Inch x 1/4 Inch on his cavity depth in stomach, blood was oozing out. He made the inquest and sent the dead body for postmortem. Dr.A.K.Sinha (PW.9) stated that when he was posted as Assistant Surgeon at Victoria Hospital, Jabalpur, Lalji Yadav was brought in injured condition. He found incised wound measuring 1 Inch x 1/4 Inch on his cavity depth in stomach, blood was oozing out. He found condition of the injured very poor, blood pressure and heart beat was not recordable. The injured died at 12.30 AM though the witness tried his best to save life of injured. Dr.D.K.Sakalle (PW.6) stated that on 4.5.95 when he was posted as Lecturer in Medical College, Jabalpur, then a Constable from PS-Omti, Jabalpur brought the dead body of Lalji Yadav for postmortem. The witness found that there was stab wound slightly oblique away from mid stomach measuring 2 cm. x 2.5 cm. in length and 1 cm. in width. The injury was having clear cut margin and intestine was visible. These injuries went inside through and through and there was also cut on the vest of deceased Lalji. The injury was ante mortam and it was sufficient in the ordinary course of nature to cause death. Dr.D.K. Sakalle (PW.6) gave postmortem report vide Ex.P/10-A. Ishwardeo (PW.5) , Constable, stated that he took the dead body of Lalji to Medical College and he was given duty certificate (Ex.P/10). 10. As per above evidence, death of Lalji was found to be homicidal and appellant has also not challenged the death of his father. His defence was that deceased got injury by fall on stones as he was in drunken condition and this has been informed at the Victoria Hospital. 11. Learned counsel for State, on the other hand, contended that appellant has not proved that death was accidental. Looking to the nature of injuries, it could not be said that death was due to accident and deceased fell on stones due to heavy drink. Incised wound with clear cut margin could not be found by falling on stones. Counsel supported the judgment delivered by the trial Court. 12. Munnalal Yadav (PW.1) examined by the prosecution was a witness relating to inquest of dead body, that was formal. Bablu (PW.2), Noorjahan (PW.3), Ramu Mourya (PW.4), Rajesh Kumar (PW.7), Rameshdatt Choubey (PW.8) and Sohanlal Yadav (PW.10) did not support the prosecution case. 13. Counsel supported the judgment delivered by the trial Court. 12. Munnalal Yadav (PW.1) examined by the prosecution was a witness relating to inquest of dead body, that was formal. Bablu (PW.2), Noorjahan (PW.3), Ramu Mourya (PW.4), Rajesh Kumar (PW.7), Rameshdatt Choubey (PW.8) and Sohanlal Yadav (PW.10) did not support the prosecution case. 13. The only circumstance of memorandum and seizure of Katar were considered to be proved by the trial Court. 14. H.L.Guru (PW.11) Investigating Officer stated that on 9.5.95 he took appellant Pappu @ Satyendra in his custody before the witnesses and made enquiry from him and he informed before the witnesses that he handed over the Katar to his friend Bablu for keeping it and he revealed to discover it, on which memorandum (Ex.P/6) was prepared. On the information given by appellant, Katar was recovered from Bablu at House No.711 which was kept in a wooden box on which some blood stained were visible. So, it was seized vide Ex.P/2 before the witnesses. There were some spots of blood on the sleeves of shirt of accused which was seized vide Ex.P/8. Appellant was arrested. The witness sent Katar, clothes and vest of deceased to FSL, Sagar vide Memo Ex.P/24. 15. Bablu (PW.2) denied that accused Pappu handed over him Katar and it was seized from his house. Noorjahan (PW.3) also denied this fact of recovery of Katar from Bablu. Ramu Mourya (PW.4) did not support the arrest vide Ex.P/5, memorandum (P/6) and seizure of clothes from appellant Pappu. He only stated that he put his signatures on the above documents under threat of police as his betel shop was there in front of police station and he could not run his shop against the will of police. Rajesh Kumar (PW.7) stated that he did not know any of the accused. He only stated that from appellant one knife (Katar) was seized vide Ex.P/7 on which he put his signatures. He was declared hostile. Then he stated in his cross-examination by the prosecution that appellant did not give any memorandum of statement vide Ex.P/6, but he stated that one Katar was seized from the house of Bablu at the instance of appellant. In cross-examination by the defence, he took a somersault and stated that no seizure was ever made before him. Then he stated in his cross-examination by the prosecution that appellant did not give any memorandum of statement vide Ex.P/6, but he stated that one Katar was seized from the house of Bablu at the instance of appellant. In cross-examination by the defence, he took a somersault and stated that no seizure was ever made before him. It seems that learned trial Court sought corroboration of Investigating Officer by this witness who was himself not reliable at all. 16. Learned counsel for appellant submits that there is no clinching evidence against the appellant. Dr.D.K.Sakalle (PW.6) stated that there was no blood on the Katar and the scientific report of the articles which were sent for scientific examination was never produced by the prosecution, the accused was convicted on a very feeble and shaky evidence. There is no direct evidence and the prosecution case is wholly based on circumstantial evidence. It is well settled in Subhash Chand vs. State of Rajasthan (2002) 1 SCC 702 , Dhananjoy Chatterjee vs. State of W.B. (1994) 2 SCC 220 and Sharad Birdhichand Sarda vs. State of Maharashtra (1984) 4 SCC 116 that in a case based on circumstantial evidence, the circumstances from which the conclusion of guilt is to be drawn have not only to be fully established, but also that all the circumstances so established should be of a conclusive nature and consistent only with the hypothesis of the guilt of the accused. Those circumstances should not be capable of being explained by any other hypothesis except the guilt of the accused and the chain of evidence must be so complete as not to leave any reasonable ground for the belief consistent with the innocence of the accused. 17. In the case in hands, there is no motive for the appellant to kill his own father. The evidence of memorandum and seizure is very much shaky and not corroborated by independent witnesses and scientific report. There are so many lapses in the prosecution case. 18. In view of aforesaid discussion, I find that learned trial Court has wrongly held the appellant Pappu @ Satyendra guilty under Section 304 Part-II of IPC. The appeal is allowed. The impugned judgment of conviction and sentence referred to above is hereby set aside. Appellant is acquitted of the charges. He be set at liberty, if not required in any other case.