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2013 DIGILAW 1020 (MP)

Vivek Gupta @ Jaiswal v. State of M. P.

2013-08-29

AJIT SINGH, B.D.RATHI

body2013
JUDGMENT : B. D. Rathi, J.;- This common judgment shall govern the disposal of the aforestated three appeals, as having arisen from the same impugned judgment, they are inter-related. 2. These appeals have been preferred by appellants Vivek Gupta alias Jaiswal, Hargovind Sharma and Mantu alias Hemant under Section 374(2) of the Code of Criminal Procedure (for short “the Code”) being aggrieved with the judgment dated 10/10/2003 passed by III Additional Sessions Judge, Jabalpur in Sessions Trial No. 621/2000, whereby they have been convicted for the offence punishable under Section 302/34 of the Indian Penal Code (for short “the I”) and sentenced to imprisonment for life with fine stipulation. 3. Prosecution story, in brief, is that on 13/05/2000 between 5.45 to 6 p.m., when Rupesh (PW7) was returning to his home from his field, he saw the appellants, all armed with deadly weapons, coming out of the house of Santosh Patel. And Santosh was telling Mantu to kill Dheeru as he was involved in the murder of Guddan. Hearing the same, Rupesh returned to his home and informed his father. On being asked by his father, Rupesh went to Dheeru’s home, but could not find him there. The same evening, at about 6.30 p.m., when Dheeru had gone near the field of Chintaman Sahu for providing water to his buffaloes, appellants, armed with Sword, Pharsa and Gupti etc. came there and, with intention to cause the death of Dheeru, started assaulting him as a result of which he fell on the spot and the appellants fled. The incident was witnessed by Vinod Singh (P.W.1), Kissu Patel (P.W.5), Santu Yadav (P.W.6) and Pramod Singh (P.W.14). They brought other villagers and took Dheeru in an Autorickshaw to Police Station Adhartal from where he was sent for treatment to Hospital. The report of the incident was lodged by Pramod Singh (PW4) at Police Station Adhartal. Dheeru succumbed to the injuries at 8.30 p.m on the same day. After investigation, appellants were arrested and charge-sheet was filed. 4. It was argued on behalf of the appellants that the trial Court did not properly appreciate the evidence on record and their conviction is based on the evidence of interested and planted witnesses, whose presence on the spot was doubtful. 5. After investigation, appellants were arrested and charge-sheet was filed. 4. It was argued on behalf of the appellants that the trial Court did not properly appreciate the evidence on record and their conviction is based on the evidence of interested and planted witnesses, whose presence on the spot was doubtful. 5. In response, learned Government Advocate, while making reference to the incriminating pieces of evidence on record, submitted that the impugned judgment was well merited and did not warrant any interference. 6. Having regard to the arguments advanced by the parties, record of the trial Court was perused. 7. Fact of homicidal death of Dheeru Yadav is well established from the evidence on record and is not in dispute. Dr. R.P. Pyasi (PW8), who conducted autopsy on 14/05/2000, had found eight incised wounds all over the body of Dheeru. Postmortem report (Ex.P/18) was prepared and it was opined by the doctor that cause of death was haemorage and shock due to the ante-mortem injuries caused by sharp edged weapons. 8. Prosecution had produced two sets of evidence to prove it’s case i.e. (i) Direct evidence of eye witnesses (ii) circumstantial evidence. Eye witness account 9. Pramod Singh (PW14), author of FIR and eye witnesses named therein viz. Kishan Patel (PW5) and Santu Yadav (PW6) have categorically testified that appellants had assaulted Dheeru with their Sword, Pharsa and Gupti and after sustaining several injuries, he was shifted to the hospital where he died. Their evidence is corroborated by the evidence of other eye witnesses not named in the FIR namely Vinod Singh (PW.1), Anil Yadav (PW. 9) and Purushottam (PW.10). 10. Testimony of all these witnesses can neither be disbelieved merely on the ground that their evidence contained minor discrepancies, contradictions, omissions and exaggerations, nor on the ground that some of them were not named in FIR, as they had fully justified their presence near the spot. 11. That apart, trial court has rightly held that evidence of eye witnesses cannot also not be disbelieved on the ground that they had not raised hue and cry during the incident and none had come forward to save the deceased, because these days, people do not risk their life for others, especially when assailants are armed with deadly weapons with a mind set of murdering. Circumstantial Evidence 12. During Autopsy Dr. Circumstantial Evidence 12. During Autopsy Dr. R.P. Pyasi (PW.8) had found eight corresponding ante-mortem incised wounds over the body of Dheeru Yadav caused by sharp edged weapons. 13. Rupesh Yadav (PW7) was examined to establish the fact that appellants were seen armed with weapons while they were going to kill Dheeru and they were talking about killing him. Sanju Punjabi (PW3) had seen the appellants going towards Tinpuriya armed with blood stained weapons and wearing blood stained clothes and thereafter he had come to know that Dheeru had died in Victoria Hospital. Vinod (PW2) and Subhash (PW4) were examined as witnesses of seizure of bloodstained earth, simple earth and piece of rope seized from the spot. 14. D. S. Pagare (PW13), Investigating Officer, had seized the blood stained Sword, Pharsa and clothes of appellants at their instance. Respective memorandum and seizure memo were prepared by him. As per the evidence of Senior Scientist Dr. Subhash Pathak (PW16), the seized articles were found stained with blood. Forensic Science Lab report (Ex.P/26) was prepared. Raj Saini (PW17) another Senior Scientist found that the blood present over the articles seized from the appellants was human blood and corresponding FSL report (Ex. P/27) was prepared. 15. In our considered view, the contention of the appellants that the prosecution case is doubtful in absence of corresponding forensic evidence as to blood grouping, cannot be accepted as sufficient direct evidence is available on record against them. 16. FIR (Ex.P/19) against the appellants was lodged within 50 minutes of the incident on 13.05.2000 at 7.20 pm. At Police Station Adhartal, situated 2 kms away from the spot, by eye witness Pramod Singh (PW14), and in compliance of Section 157 of the Code its copy had been sent to Judicial Magistrate First Class immediately. Compliance of S.157, having not been challenged, arguments in regard to manipulation by overwriting in the FIR assumed no significance. 17. Trial court has rightly held that in absence of any cogent and reliable evidence, defence of appellant Vivek was not acceptable that he was unable to assault as he was suffering from paralysis at the time of incident. 18. In view of the aforesaid and after taking into consideration the entire evidence on record, we are of the considered view that the trial Court has not committed any illegality in convicting the appellants. 19. The appeals are, therefore, dismissed. 18. In view of the aforesaid and after taking into consideration the entire evidence on record, we are of the considered view that the trial Court has not committed any illegality in convicting the appellants. 19. The appeals are, therefore, dismissed. Impugned Conviction and consequent sentences are hereby affirmed. 20. Copy of the judgment be retained in each of the connected Criminal Appeals, as well as, be sent to the trial Court along with the record for information and compliance.