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2015 DIGILAW 482 (MP)

Parwat v. State Of M. P.

2015-04-23

SUSHIL KUMAR GUPTA, U.C.MAHESHWARI

body2015
JUDGMENT : U. C. MAHESHWARI, J. On behalf of the appellants, this appeal is preferred under section 374 of the Criminal Procedure Code, being aggrieved by the judgment dated 11-4-2008 passed by Sessions Judge, Datia in Session Trial No. 23/2007 convicting and sentencing each of the appellants under section 302/34 of Indian Penal Code for life imprisonment with fine of Rs. 5,000/- with stipulation of further six months imprisonment in default of depositing the fine amount. 2. The facts giving rise to this appeal, in short, are that, before happening the alleged incident the appellants namely Parwat and Pooran were residing in the house of the deceased-Punnalal as his tenants but such premises was got vacated from the appellants by the deceased. As per further case of the prosecution, on dated 4-11-2006 at about 6:30 in the morning, the deceased-Punnalal according to his regular life went towards the field situated near hill to answer the call of nature. He was also followed by the complainant his wife Rajkumari (PW-1) who was also going to answer the call of nature, at the same time, present appellants accompanied with two other unknown persons reached there and started beating the deceased-Punnalal by means of axe and Baka, sharp edged weapon. On shouting by his wife Rajkumari (PW-1), the same was heard by their other tenant Rani (PW-6). After committing the murder of Punnalal, the appellants fled away from the spot. On receiving such information at Police Station Datia, the police party also reached to the spot where in respect of the alleged incident, Dehati Nalshi (Ex.P/1) was lodged by the aforesaid wife of the deceased Rajkumari (PW-1) and thereafter the dead-body of Punnalal after preparing the necessary paper sent to the hospital to carry out the autopsy. On carrying out the same, the death of the deceased was found to be homicidal death. According to further opinion of the Doctor, due to injury on the neck, shock and haemorrhage, the deceased has died. On the basis of aforesaid Dehati Nalshi, the First Information Report (EX-P/9) was registered against the appellants for the offence under section 302/34 of Indian Penal Code. 3. After recording the interrogatory statements of the witnesses, the appellants were arrested. According to further opinion of the Doctor, due to injury on the neck, shock and haemorrhage, the deceased has died. On the basis of aforesaid Dehati Nalshi, the First Information Report (EX-P/9) was registered against the appellants for the offence under section 302/34 of Indian Penal Code. 3. After recording the interrogatory statements of the witnesses, the appellants were arrested. On disclosing the material information by the appellants, their respective memorandums Ex-P/5 and Ex-P/6 under section 27 of the Evidence Act were recorded and pursuant to it, on their instance and in presence of the witnesses the above mentioned implements axe and Baka were recovered by preparing the Panchnama, seizure memo Ex-P/7 and Ex-P/8. After concluding the investigation, on establishing prima facie ingredients of the offence under section 302/34 of Indian Penal Code and section 27-B of the Arms Act, the appellants were charge-sheeted. 4. After committing the case to the Sessions Court, on evaluation of the charge-sheet, the charge of section 302/34 of Indian Penal Code was framed against the appellants. The appellants abjured the guilt on which the trial was held in which as many as nine witnesses have been examined. After recording the evidence and extending the opportunity to the appellants to produce the evidence in defence, on appreciation by holding guilty to the appellants under the above mentioned offence, each of them was sentenced as mentioned above. Being dissatisfied with such conviction and sentence, the appellants have come to this Court with this appeal. 5. The appellants' counsel Shri Anoop Nigam after taking us through the record of the trial Court, the evidence adduced by the prosecution alongwith the exhibited papers of the charge-sheet, so also the impugned judgment argued that the story put forth by the prosecution has not been proved by cogent, reliable and by independent source of the evidence. Wife of the deceased Rajkumari (PW-1) being interested witness on account of enmity factor between the parties, was not reliable because on account of some transaction to purchase the house of the deceased by the appellants some quarrel had taken place between the deceased and the appellants. Wife of the deceased Rajkumari (PW-1) being interested witness on account of enmity factor between the parties, was not reliable because on account of some transaction to purchase the house of the deceased by the appellants some quarrel had taken place between the deceased and the appellants. He further submits that there was also enmity on account of vacating the premises of the deceased by the appellants because the appellants being tenants, did not want to vacate the house but the same was got vacated from the appellants by the deceased with the help of the police as the deceased and his son were working in the police department. After vacating the premises there was no dispute between the family of the deceased and appellant in spite that after causing the death of the deceased-Punnalal by some others the appellants have falsely been implicated in the matter. In continuation, he said that in fact, there was a serious enmity between the deceased family and the family of his elder son Youngveer Bahadur and in view of available evidence on proper appreciation the possibility to commit such murder by Youngveer Bahadur and his associates persons could not be ruled out. In support of such contention, he also referred some para of the deposition of Rajkumari (PW-1). He further said that the story put forth by the Rajkumari (PW-1) is not supported by Rani (PW-6), the alleged material witness of prosecution. She has not stated any incriminating thing against the appellants. He further said that Balveer Singh (PW-2), the younger son of the deceased with whom deceased and his wife Rajkumari (PW-1) were residing, is not reliable because he is not the eye-witness of the incident and he was also having the same enmity as had by the deceased and his wife Rajkumari (PW-1) with the appellants. In further arguments he said that it is a settled proposition that where there is a serious enmity between the examined interested witness as the accused like appellants then the story put forth by the prosecution could not be believed unless the same is supported by independent source of the evidence. Mere on the basis of the testimony of the interested witness, the accused like appellants cannot be convicted. Mere on the basis of the testimony of the interested witness, the accused like appellants cannot be convicted. In further arguments, he said that the memorandum of both the appellants recorded under section 27 of the Evidence Act and the alleged recovery memo of the axe and Baka have not been proved by cogent and reliable evidence. As such, independent witness of the aforesaid memorandum as well as of seizure memo on recording their deposition had turned hostile and did not support the prosecution and mere on the deposition of the Officer, such papers could not be relied on by the trial Court and on that basis no interference could be drawn against the appellants. On examination of seized Axe and Baka by the F.S.L. no evidence to incriminate or connect the present appellants with the alleged offence have come in such report. In addition, he also argued that according to prosecution case, the undisputed alleged incident happened between 6 to 6:30 in the morning in the month of November, 2006 and during such period of November on account of late rising of the sun, in the dark of early morning from the alleged distance between Rajkumari and the place of incident Rajkumari (PW-1) could not see and identify the culprits. He also said that prosecution has failed to prove any motive against the appellants to commit the alleged murder of the deceased. So in such premises, the case of prosecution being suspicious and doubtful, the impugned judgment of conviction is not sustainable and deserves to be set aside and prayed for the same by allowing this appeal. 6. On the other hand, in response of the aforesaid argument Shri J. M. Sahni, learned Panel Lawyer by justifying the impugned conviction and sentence of the appellants, said that same being based on proper appreciation of the evidence, does not require any interference at this stage for extending the acquittal to the appellants or any of them. In continuation, he said that undisputedly, the alleged incident happened at about 6 to 6:30 in the morning on 4-11-2006 and immediately after one hour and 10 minutes as soon as the police reached to the spot without consulting to any other a Dehati Nalsi was recorded at the instance of the wife of the deceased Rajkumari (PW-1) in which name of the present appellants as culprits of the incident were mentioned. According to Dehati Nalshi, the deceased was subjected to beating and blows by means of axe and Baka by both the appellants, resultantly, he sustained injury on his neck and some other parts of his person and succumbed to the same. He further said that after preparation of the spot map and dead-body Panchnama on sending the corpus of the deceased to the hospital the post-mortem was carried out in which the corresponding injuries were found. The same have been proved by Rajkumari (PW-1) and Dr. P. L. Verma (PW-8). He further submitted that witness Rani (PW-6) although on recording her deposition had turned hostile, but in her deposition she categorically stated that after coming from the spot, Rajkumari was crying and saying that her husband-Punnalal has been killed so till such extent, this witness has also supported the prosecution story. In addition, he said that Balveer Singh (PW-2) has also supported the version stated by her mother Rajkumari (PW-1) till some extent, whom immediately after happening the incident, she apprised about the same. He further said that mere on turning hostile, the independent-witnesses of memorandum and seizure memo, the same could not be disbelieved. The same could be relied on mere on the basis of the deposition of investigating officer especially in the lack of evidence on record to show that the investigating officer having any enmity with the appellants or any of them was interested to implicate them in offence. He further said that there is no evidence on record to show the involvement of Youngveer Bahadur, the elder son of the deceased, and Rajkumari (PW-1) in the alleged incident, hence, the defence story as argued by the appellants' counsel in this regard could not be relied on. He further said that as per settled proposition, if there is conflict between ocular evidence and expert's evidence like F.S.L. report then ocular evidence would prevail and not the expert's evidence and prayed for dismissal of this appeal. 7. Having heard the counsel at length, keeping in view the argument, we have carefully gone through the record of the trial Court along with the impugned judgment. 8. 7. Having heard the counsel at length, keeping in view the argument, we have carefully gone through the record of the trial Court along with the impugned judgment. 8. It is undisputed fact on record that long before the incident the appellants were tenants in the house of the deceased and on account of such tenancy of the premises there was a dispute between them and the same was got vacated by the deceased from the appellants with the police assistance as the deceased and his son were working in the police department, but mere on such background it could not be inferred that there was some enmity factor between the parties. Apart from this one another theory that there was dispute between them regarding sale transaction of the aforesaid house has also been raised but in the absence of any reliable supporting evidence on record such theory could not be considered as enmity factor between the parties to draw the inference that appellants have been implicated in the matter on false pretext. 9. True it is that as per the deposition of Rajkumari (PW-1) there was a serious enmity factor between her husband Punnalal and their elder son Youngveer Bahadur since last 20 years and they are living separately and on some occasions some quarrel had also taken place between them for which reports were also lodged in the Police Station, she also deposed that on one occasion her husband was threatened by Youngveer Bahadur saying that on non-fulfilment of his demand he will kill him. But mere on such part of the deposition by ignoring the available evidence on record against the appellants for committing the alleged offence, they could not be extended the benefit of acquittal. So we are of the considered view that in the lack of any reliable evidence regarding involvement of Youngveer Bahadur in the alleged incident, such defence as projected by the appellants counsel could not be relied on. 10. Rajkumari (PW-1) in her deposition categorically stated that on the aforesaid date and time, the deceased went to answer the call of nature to whom she also followed to answer the call of nature. 10. Rajkumari (PW-1) in her deposition categorically stated that on the aforesaid date and time, the deceased went to answer the call of nature to whom she also followed to answer the call of nature. As soon as her husband sat to answer the call of nature, at the same time the appellants accompanied with two other persons came there, out of them Parwat was armed with Baka and Pooran along with two other persons was armed with axe, and started beating her husband by means of above mentioned implements resultantly he sustained the fatal injury and succumbed to same on the spot. Thereafter, the appellants fled away. She also stated that the appellants were residing in a garden situated near her house and prior to that they were residing in her house as tenant but were not vacating the same on which the same was got vacated with the police assistance. She further stated that her elder son Youngveer Bahadur and his wife Aparna a day before had told to her husband that on non-fulfilling their demand they will kill him, but in her entire deposition as well as Dehati Nalshi she had not alleged any allegation against Youngveer Bahadur and Aparna to show their presence or involvement in the alleged incident. On going through her cross-examination, we have not found any material substance destroying the aforesaid version stated in her chief against the appellants. 11. This testimony of the aforesaid witness is further supported by Balveer Bahadur (PW-2) who categorically stated that when he was going to his duty on the way in front of Collectorate the son of witness Rani met him and informed that his father has been murdered, then immediately he went to the place of incident and saw the dead-body of his father in the field in front of Hanuman Temple, where he was apprised by his mother that his father has been murdered by the appellants accompanied with two other persons who after committing such act, fled away towards hill where the house of his elder brother Youngveer Bahadur is situated. He also stated about old relationship of the tenancy of house between the deceased and the appellants. Accordingly, the story put forth by Rajkumari (PW-1) has been supported by this witness. 12. He also stated about old relationship of the tenancy of house between the deceased and the appellants. Accordingly, the story put forth by Rajkumari (PW-1) has been supported by this witness. 12. True it is that other witness Rani (PW-6) on recording her deposition had turned hostile but in Para-2 of her deposition she categorically stated that Punnalal has been murdered on the date of the incident and at about 7 o'clock in the morning his wife said Rajkumari (PW-1) with crying and shouting was saying that Diwanji (Punnalal her husband) has been chopped off and she was deeply weeping. This witness helped her and assisted her in lying on the cot. So till this extent, the story of Rajkumari (PW-1) was supported by this witness Rani (PW-6). 13. Now a days, it is settled proposition of law that witness who turned hostile cannot be disbelieved in his entirety, but if stated some facts which are relevant with the matter in view of other available evidence and circumstances, then the same can be taken into consideration to draw interference in the matter. 14. In view of the aforesaid ocular evidence, the prosecution has successfully proved the case on facts against the appellants and in such premises, we are of the considered view that mere on account of some expert evidence FSL report or even on turning hostile the witnesses of the seizure memo and memorandum, contrary to aforesaid eye-witness and ocular evidence, the appellants could not have been acquitted by the trial Court. 15. Apart the aforesaid, it is also apparent from the record that immediately after the incident on reaching the police, without consulting to any other, said Rajkumari (PW-1) lodged a Dehati Nalshi report with the name and the committed act of the appellants, so in such premises her presence on the spot could not be doubted. Thus it could not be said that Rajkumari (PW-1) has implicated the appellants by fabricating the false story. 16. Thus it could not be said that Rajkumari (PW-1) has implicated the appellants by fabricating the false story. 16. True, there is a settled proposition that if there is a serious animus between the interested witnesses and the accused then in the lack of any supportive evidence from the independent source the accused could not be convicted, but simultaneously whenever and wherever the natural evidence of the family member come on the record and same appears to be reliable in view of the other available evidence and circumstances of the case, then mere on the ground of relationship of the witness with the deceased or victim the such deposition could not be discarded. So in such premises also, the testimony of Rajkumari (PW-1), which is supported by Balveer (PW-2) and till some extent by hostile witness Rani (PW-6), could not be disbelieved, consequently, it is held that trial Court has not committed any error on relying on the testimony of such witnesses to hold the conviction against the appellants. 17. Apart the aforesaid, we are of the considered view that in the lack of any evidence to show that Investigating Officer had some earlier enmity with the accused like appellants, the testimony of such Investigating Officer, even on turning hostile the witnesses of the aforesaid memorandum of the appellants and the seizure memos have been rightly acted upon by the trial Court to rely on such memorandum and seizure memos. So in such premises, the arguments advanced by appellants' counsel in this regard is hereby failed. 18. In view of the aforesaid discussion, we have not found any error, illegality, irregularity, perversity or any thing against the propriety of law in the approach of trial Court holding conviction against the appellants hence, by affirming the impugned judgment as well as the imposed conviction and sentence on the appellants, this appeal is hereby dismissed. As per available record the appellants are in jail since 1-12-2006 from the date of their initial arrest hence no further direction is required in that regard.