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2018 DIGILAW 122 (MP)

Raju @ Rajkumar v. State of M. P.

2018-01-31

ANJULI PALO, S.K.GANGELE

body2018
JUDGMENT Smt. Palo, J. -- 1. The appellant accused has filed this appeal against the judgment dated 20.7.1995 passed by the 2nd Addl. Sessions Judge, Shahdol in Session Trial No. 148/1993 whereby the appellant has been convicted under section 302 of the Indian Penal Code and sentenced to undergo life imprisonment. 2. In brief, the prosecution case is that, 3-4 days prior to the incident the appellant took the minor daughter of deceased Khiladilal Sharma with him to his room and tried to outrage her modesty. But somehow, she was able to escape. When she told about the incident to her sister and parents, there was a conflict between the appellant and the deceased. On 16.6.1993, in the morning deceased Khiladilal Sharma was on duty at Nagar Palika Naka. At about 8:00 am, appellant came there and assaulted him by gupti (big knife). Khiladilal was taken to hospital in injured condition. His father Balgovind Sharma (PW14) came to the hospital. Khiladilal narrated the incident to him that the appellant had inflicted blows by a gupti on him. After sometime, Khiladilal died. FIR was lodged by Balgovind Sharma (PW14) against the appellant. After due investigation, charge sheet was filed against the appellant. 3. After committal of the case, the learned trial Court relying upon the testimony of eye-witness Harprasad (PW15) and other evidence held the appellant guilty for committing murder of deceased Khiladilal and convicted him under section 302 of the Indian Penal Code and sentenced for life imprisonment. 4. Appellant has challenged the aforesaid finding of the learned trial Court on the ground that so many witnesses have turned hostile. Hence, the testimony of related witnesses cannot be relied upon to convict the appellant. Harprasad (PW15) is a chance witness who was not known to the appellant. No identification parade was conducted. Further, the memorandum and seizure has not been proved by independent witnesses. Therefore, the learned trial Court has wrongly convicted the appellant. Appellant has prayed to set aside the impugned and he be acquitted from the charge levelled against him. 5. Heard learned counsel for both the parties at length. Perused the record. 6. The point for determination is that : “Whether the appellant has wrongly been convicted by learned trial Court?” 7. It is not in dispute that the deceased Khiladilal Sharma died in the morning hour on the date of incident. 5. Heard learned counsel for both the parties at length. Perused the record. 6. The point for determination is that : “Whether the appellant has wrongly been convicted by learned trial Court?” 7. It is not in dispute that the deceased Khiladilal Sharma died in the morning hour on the date of incident. R.K. Mishra (PW13) deposed that, FIR (Ex.P-18) was registered by him as per written complaint (Ex.P-17) filed by father of the deceased Balgovind Sharma (PW14) which has been. FIR (Ex.P-18) was promptly lodged against the appellant at Police Station Beohari. 8. Facts of the FIR (Ex.18) are duly corroborated by Balgovind Sharma (PW14). He deposed that he came to know about the incident from his grand daughter Manji @ Laxmidevi then he reached the hospital. At that time his son Khiladilal Sharma was lying in the operation theater. He was conscious and told that “appellant inflicted blow of gupti on him”. After sometime Khiladilal Sharma died. Then written complaint (Ex.P-17) filed by him at Police Station Beohari. 9. Promptness in lodging FIR indicates that there is no possibility to implicate the appellant in any concocted story. 10. As per Urmila (PW16) wife of the deceased, Balgovind (PW14) father of the deceased, Sunita (PW17) and Laxmi (PW18) daughters of the deceased, appellant was annoyed with the deceased Khiladilal Sharma, because on 16.6.1993, the appellant took the minor daughter of deceased Khiladilal Sharma with him to his room then removed her clothes and tried to outrage her modesty. At that time Sunita cried and after hearing her noise some children came there, then she saved herself from the appellant. She narrated this incident to her family members, therefore there was a conflict between the appellant and the deceased Khiladilal Sharma. With this regard, we find testimony of Sunita, Urmila, Balgovind and Laxmi wholly reliable and trustworthy. This fact is also narrated in the written complaint Ex. P-17 to the police. This incident has established the motive of the appellant to kill the deceased. This shows his conduct before the incident and after the incident, which relevant under section 6 and 8 of the Indian Evidence Act. Thus, we do not find any reason to disbelieve the testimony of Balgovind Sharma (PW14) and his family members. 11. Learned counsel for the appellant submitted that BalgovindSharma (PW14) is the sole witness. This shows his conduct before the incident and after the incident, which relevant under section 6 and 8 of the Indian Evidence Act. Thus, we do not find any reason to disbelieve the testimony of Balgovind Sharma (PW14) and his family members. 11. Learned counsel for the appellant submitted that BalgovindSharma (PW14) is the sole witness. He is the interested witness and his testimony cannot be reliable without corroboration from the other independent witnesses. 12. We are not inclined to accept it. Fact of witness being related to victim or deceased does not by itself discredit his evidence. Because evidence of related witnesses is of evidentiary value. Court has to scrutinize evidence with care as a rule of prudence and not as a rule of law, as held by the Supreme Court in the case of Arjun v. State of C.G. [2017(2) MPLJ (Cri) 305]. Because a close relative is a natural witness cannot be regarded as an interested witness, for the term “interested” postulates that the witness must have some interest in having the accused, somehow or the other convicted for some animus or for some other reason, as held by the Supreme Court in the case of Kartik Malhar v. State of Bihar [ (1996)1 SCC 614 ]. 13. In case of Roop Narain Mishra v. State of U.P. [2017 Cri L.J. 1487] has held as under : “On the point of 'interested witnesses', the Hon'ble Supreme Court in State of U.P. v. Jagdeo, reported in 2003 CriLJ 844 (SC), observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence.” 14. Balgovind (PW14) is the natural witness, who is not interested to let escape the real culprit who murdered his son. Therefore, his testimony cannot be discarded. 15. It is true that in the present case the interested witnesses [Vinod Kumar Shukla (PW2), Mohd. Yasin (PW3), Durga Shankar (PW4), Rakesh Kumar (PW5), Vansh Gopal Tiwari (PW6) and Rajesh Kumar Tiwari (PW7)] have turned hostile, but only for this reason, the prosecution case cannot be not disbelieved. Therefore, his testimony cannot be discarded. 15. It is true that in the present case the interested witnesses [Vinod Kumar Shukla (PW2), Mohd. Yasin (PW3), Durga Shankar (PW4), Rakesh Kumar (PW5), Vansh Gopal Tiwari (PW6) and Rajesh Kumar Tiwari (PW7)] have turned hostile, but only for this reason, the prosecution case cannot be not disbelieved. Durga Shankar (PW4) deposed that he knew about that someone inflicted knife to the deceased and he was in critical condition and brought to the hospital then he went to the hospital. Mohd. Yasin (PW3) deposed that he saw deceased Khiladilal was injured at about 7 to 8 a.m. near Beohari Chunginaka. 16. As per prosecution story and the testimony of Balgovind Sharma (PW14), at the time of the incident, the deceased was performing his duty. This testimony is corroborated by Sukur Mohd. (PW8). As per father of the deceased Balgovind Sharma (PW14) incident took place at Chunginaka which established by the above evidence of Harprasad (PW15), who is the sole eye witness and duly corroborated the prosecution story. He saw the incident and he was present at Beoharinaka. The appellant came there behind the deceased and inflicted blow of knife on his right side of the stomach. 17. Harprasad (PW-15) identified the appellant before the trial Court also. In his cross-examination he clearly admitted that he was in position to see the incident from the naka. He is not interested witness and has no enmity with the appellant. During thorough cross-examination, we find his testimony is unshaken and unrebutted. 18. The incident narrated by the deceased himself to his father, which comes under the definition of section 32 of the Indian Evidence Act. As the oral dying declaration of the deceased, it can be used for conviction of the appellant-accused. The oral dying declaration of the deceased is also corroborated by the testimony of Harprasad (PW-15) and established that the appellant has caused the death of the deceased by inflicting continuous blows of knife on him. 19. In the case of Ramesh and others v. State of Haryana [2017 CriLJ 352], the Supreme Court held that dying declaration is a substantive piece of evidence and may form sole basis of conviction, if found reliable. The Supreme Court has also held that trend of witnesses turning hostile is due to various other factors. 19. In the case of Ramesh and others v. State of Haryana [2017 CriLJ 352], the Supreme Court held that dying declaration is a substantive piece of evidence and may form sole basis of conviction, if found reliable. The Supreme Court has also held that trend of witnesses turning hostile is due to various other factors. It may be fear of deposing against the accused/delinquent or political pressure or pressure of other family members or other such sociological factors. It is also possible that witnesses are corrupted with monetary considerations. Thus, only on the ground that the independent eye-witnesses turned hostile not supported story, the testimony of Balgovind (PW14) and Harprasad (PW15) cannot be disbelieved. 20. Learned counsel for the appellant drew our attention on the statement of Balgovind (PW14) and submitted that when he reached to the hospital there were so many persons present there, but the deceased had not narrated about the incident to anyone except his father Balgovind (PW14). Balgovind (PW14) clearly stated that at the time of oral dying declaration of the deceased both were at operation theatre. It is quite natural except the doctors, staff and close relatives of the injured person (who is under treatment) no one be allowed to enter in the operation theatre. Otherwise also, nowadays, generally public is not interested to support the prosecution case in heinous offences. They tried to escape themselves. They do not want to be involved in the case related to the other persons. Therefore, the contentions of the learned counsel for the appellant cannot be accepted. 21. R.K. Mishra (PW13) deposed that appellant gave information about the weapon (gupti), which was used by him to commit the offence was recovered under the garbage. Accordingly, memorandum (Ex.P-11) and seizure memo (Ex.P-10) was prepared by him before the panch witnesses. Further, that as per seizure memo Ex. P/12 he recovered blood stained clothes of the appellant. 22. All the articles were sent to FSL, Sagar for chemical examination. As per FSL report (Ex.P-23) blood stains were found on the clothes (shirt and pant) of the appellant and weapon (gupti) which was recovered from the appellant. This fact also connects the appellant with the murder of the deceased. The appellant has not offered any explanation against such incriminating circumstance established by the prosecution against him. 23. The autopsy of the deceased was conducted by Dr. This fact also connects the appellant with the murder of the deceased. The appellant has not offered any explanation against such incriminating circumstance established by the prosecution against him. 23. The autopsy of the deceased was conducted by Dr. R.K.Pandey (PW11) on the date of incident. He found five incised wound including a wound which damaged the heart of the deceased. This injury was sufficient to cause death of the deceased in ordinary course. The injury as caused by sharp object within six hours of the postmortem. He also found that the shirt of the deceased was torn. 24. After considering the conduct of the appellant, anger towards the deceased (father of Sunita), weapon used by the appellant which established that the appellant, in a preplanned way caused the death of the deceased. Therefore, the case comes under the category of “murder” as prescribed under section 300(4) of the IPC. 25. In view of the aforesaid evidence, in our opinion the trial Court has rightly held the appellant guilty for commission of offence under section 302 of the Indian Penal Code. Court has appreciated the evidence properly and awarded proper sentence. We do not find any merit in this appeal. It is hereby dismissed. 26. Appellant is on bail. His bail bonds are canceled and he is directed to surrender immediately before the concerned trial Court to undergo the remaining part of jail sentence as awarded by the trial Court, failing which the trial Court shall take appropriate action under intimation to the registry. 27. Copy of this judgment be sent to the Court below for information and compliance along with its record.