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2023 DIGILAW 288 (MP)

Sandeep Rajput alias Rinku v. State of M. P.

2023-02-21

AMAR NATH KESHARWANI, SUJOY PAUL

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JUDGMENT Paul, J:- 1. The appellant, real nephew of deceased Lal Singh faced a trial in Sessions Case No.396/13 decided on 26.2.2014 by the learned Sessions Judge, Jabalpur whereby the Court below found him guilty for committing offence under section 302 of IPC and directed to undergo life imprisonment with fine of Rs.1,000/- with default stipulation. 2. Brief facts giving rise to this matter are that on 1.3.2013 complainant Amar Singh Rajput (P.W.1) lodged a Dehati Nalisi at 10:00 A.M. that his son Sandeep Rajput @ Rinku (appellant) used to reside with the deceased Lal Singh. Appellant used to quarrel on trivial issues with Lal Singh. In the intervening night of 28.2.2013, Lal Singh advised the appellant to do some work because of which appellant got annoyed and hurled abuses to Lal Singh and threatened him of dire consequences. Appellant caused injury on the head of Lal Singh by means of a brick. 3. The offences under sections 294, 506, 323 and 324 of IPC were registered pursuant to the F.I.R. (Ex.P/10). The police prepared a site map (Ex.P/9) and on 1.3.2013 recovered a blood stained bedsheet, soil and plain soil. 4. Dr. Rakesh Pahadiya (P.W.9) examined Lal Singh on 1.3.2013 in Victoria Hospital, Jabalpur at around 09:20 A.M. He found bleeding from the nostrils of Lal Singh. He opined that there was no external injury. Lal Singh was in a semi conscious state. As per his report, the injuries were caused to Lal Singh about six hours before the time of examination. The injuries were caused by a hard and blunt object. The said report is Ex.P/19. Lal Singh succumbed to the injuries on 8.3.2013. The merg intimation is Ex.P/2. Dr. Satish Bhaya (P.W.6) conducted autopsy on 08.03.2013 and found six injuries on the person Criminal Appeal No. 868 OF 2014 of deceased. As per the opinion of Dr. Bhaya, the cause of death is injury Go.5 (head injury) which is caused by hard and blunt object. Post mortem report was marked as Ex.P/13. The appellant was arrested by police on 6.3.2013 during investigation. As per memorandum (Ex.P/15) of appellant recorded under section 27 of Indian Evidence Act, a blood stained brick was recovered on 6.3.2013. After completion of investigation, challan was filed for committing offence under section 302 of IPC. After committal, the mater came up before the Sessions Court. Appellant abjured the guilt. As per memorandum (Ex.P/15) of appellant recorded under section 27 of Indian Evidence Act, a blood stained brick was recovered on 6.3.2013. After completion of investigation, challan was filed for committing offence under section 302 of IPC. After committal, the mater came up before the Sessions Court. Appellant abjured the guilt. Court below framed three questions for determination and recorded statements of ten prosecution witnesses. Nobody entered the witness box on behalf of appellant. 5. After recording the evidence and hearing both the parties, the impugned judgment dated 26.2.2014 is passed convicting the appellant for committing murder of Lal Singh. Contention of appellant : 6. Shri H.R. Naidu, learned counsel for the appellant submits that there is no eye-witness to the incident. Merely because appellant used to quarrel with Lal Singh on petty issues, it cannot be presumed that appellant has murdered Lal Singh. The presumption drawn in para-36 of the impugned judgment is legally unsustainable and requires to be interfered with. 7. It is further argued that Amar Singh Rajput (P.W.1) by no stretch of imagination can be treated to be an eye-witness. In para-17 of the impugned judgment, the Court below opined that Amar Singh Rajput Criminal Appeal No. 868 OF 2014 (P.W.1) is an eye-witness whereas in para-19 of the judgment, opined that he is not an eye-witness. 8. The case of the prosecution is based on circumstantial evidence. Existence of ‘motive’ assumes importance and significance in a case of circumstantial evidence. In this case no motive and proper chain circumstantial evidence was established by the prosecution. 9. The circumstantial evidence should be clear and intact. On suspicion, surmises and conjectures, the accused cannot be held guilty. 10. The report of Amar Singh Rajput shows that he informed the police that injury was caused by means of brick which was lying on the scene of crime. The statement of Mukesh Rajput (P.W.3) recorded under section 161 of Cr.P.C. (Ex.P/8) also shows that blood stained brick was lying at the place of incident. The brick was actually recovered on 6.3.2013 on the basis of alleged memorandum of appellant. The delay in recovering the brick allegedly used in assault, which was known to the prosecution, causes serious dent to its story. 11. The ‘last seen’ evidence alone is not sufficient to convict the appellant. The chain of circumstances are not complete and clear. The brick was actually recovered on 6.3.2013 on the basis of alleged memorandum of appellant. The delay in recovering the brick allegedly used in assault, which was known to the prosecution, causes serious dent to its story. 11. The ‘last seen’ evidence alone is not sufficient to convict the appellant. The chain of circumstances are not complete and clear. It cannot be presumed that appellant had any ‘intention’ or ‘knowledge’ to cause injury to his own uncle. 12. Alternatively, Shri Naidu submits that in absence of establishing any intention or motive, at best, it can be held that appellant because of trivial quarrel caused injury on the deceased person by means of brick. Thus, it is clear that injury No.5 became cause of death. It is argued that in this factual backdrop, at best, offence under section 304 Part-I or Part-II is made out and necessary ingredients for attracting offence under section 302 of IPC are missing. The appellant is in custody from 6.3.2013. The conviction and sentence may be modified accordingly. Contention of respondent : 13. Shri Ajay Shukla, learned Government Advocate supported the impugned judgment and submits that complainant who is father of the present appellant Amar Singh Rajput (P.W.1) is an eye-witness. Para 21, 29 and 36 of the impugned judgment makes it clear that appellant used to stay with deceased Lal Singh in his house in which there was only one room. On 28.2.2013 at around 6:30 p.m., Amar Singh Rajput (P.W.1) had witnessed a quarrel between the appellant and Lal Singh. Appellant hurled abuses on Lal Singh and threatened him of dire consequences. In this backdrop and in absence of any explanation of appellant in this regard, he was rightly held guilty. Moreso, when blood stained brick was recovered at the instance of appellant. 14. No other argument was advanced by the parties. 15. We have heard the parties at length and perused the record. 16. The crux of the argument of learned counsel for the appellant is that there is no eye-witness to the incident. The appellant was held guilty on the basis of last seen theory which alone is not sufficient to hold the appellant as guilty. 15. We have heard the parties at length and perused the record. 16. The crux of the argument of learned counsel for the appellant is that there is no eye-witness to the incident. The appellant was held guilty on the basis of last seen theory which alone is not sufficient to hold the appellant as guilty. In view of judgment of Supreme Court reported in (2016) 12 SCC 251 (Rambraksh alias Jalim v. State of Chhattisgarh) (para-12), there cannot be any quarrel on the proposition Criminal Appeal No. 868 OF 2014 that merely on the ground of ‘last seen’, it is unsafe to record and affirm a conviction. However, a microscopic reading of evidence in this matter shows that complainant of the incident is none else than father of the present appellant. There is no reason shown as to why father will depose against his own son. No previous enmity is established between the complainant/father and appellant/son. The cause of death is injury caused by means of a brick. Dr. Satish Bhaya (PW-6) has supported the same. Thus, the death is homicidal in nature. 17. It appears that the incident had taken place in the intervening night between 28.2.2013 and 29.2.2013. The Court below, no doubt, has erroneously held in para-17 that Amar Singh Rajput (PW-1) is an eyewitness. Amar Singh Rajput lodged the Dehati Nalisi on 1.3.2013 at 10:00 a.m. Amar Singh Rajput deposed that his house is in-front of deceased Lal Singh’s house. His son/appellant used to reside with his uncle Lal Singh. A day before, he had seen appellant abusing his uncle Lal Singh. Since, it was clearly established by the prosecution that appellant was residing with the deceased in a house which had single room, the appellant was required to give some explanation as to how death of Lal Singh occurred. No plausible explanation came forward on behalf of appellant. The appellant who used to reside with the deceased did not explain as to how and where he had been to on the date and at the time of incident. Even in cases of circumstantial evidence, it cannot be said as a rule of thumb that in absence of establishing ‘motive’ one cannot be held guilty for committing offence under section 302 of IPC. The chain of circumstances shows that it was appellant and appellant alone who had committed the said crime. Even in cases of circumstantial evidence, it cannot be said as a rule of thumb that in absence of establishing ‘motive’ one cannot be held guilty for committing offence under section 302 of IPC. The chain of circumstances shows that it was appellant and appellant alone who had committed the said crime. In this backdrop, we are unable to hold that appellant has not committed the crime. We find support in our view from the judgment of Supreme Court reported in (2013) 3 SCC 52 (Sanaullah Khan v. State of Bihar) relevant portion of which reads as under :- “18. ……..The evidence of PW 4 may thus create some doubt with regard to the motive of the appellant to kill Ravindra Prasad and Sunny Kumar. Where other circumstances lead to the only hypothesis that the accused has committed the offence, the Court cannot acquit the accused of the offence merely because the motive for committing the offence has not been established in the case. In Ujjagar Singh v. State of Punjab [ (2007) 13 SCC 90 : (2009) 1 SCC (Cri) 272] this Court has held : (SCC p. 99, para 17) “17. … It is true that in a case relating to circumstantial evidence motive does assume great importance but to say that the absence of motive would dislodge the entire prosecution story is perhaps giving this one factor an importance which is not due and (to use the cliché) the motive is in the mind of the accused and can seldom be fathomed with any degree of accuracy.” (Emphasis Supplied) 18. The next question before us is whether alternative argument of Shri Naidu regarding conversion of offence from section 302 IPC to 304 PartI of IPC can be accepted. 19. The appellant assaulted the deceased by means of a piece of brick. The heated exchange of words a day before shows that the incident has taken place in the spur of moment and therefore, exception 4 to section 300 IPC will apply. The apex Court in (2007) 12 SCC 718 (Gopal v.State of Maharashtra) opined that the accused had given only one blow with wooden log and had not acted in a cruel manner. Since assault was made in the course of sudden quarrel, conviction deserves to be altered to section 304 Part-I IPC from section 302 of IPC. 20. The apex Court in (2007) 12 SCC 718 (Gopal v.State of Maharashtra) opined that the accused had given only one blow with wooden log and had not acted in a cruel manner. Since assault was made in the course of sudden quarrel, conviction deserves to be altered to section 304 Part-I IPC from section 302 of IPC. 20. Reference may be made to another judgment of Supreme Court reported in (2009) 12 SCC 260 (Buddu Khan v. State of Uttarakhand) wherein accused hit the deceased with a piece of brick. The apex Court in this case also converted the offence under section 304 Part-I of IPC and directed the accused to undergo the sentence of 10 years. In view of these judgments and factual background, we deem it proper to covert the sentence from 302 IPC to 304 Part-I of IPC and direct the appellant to undergo the actual sentence of 10 years. 21. Resultantly, the impugned judgment to the extent conviction and sentence is concerned, stands modified to the extent indicated above. The appeal is partly allowed to the extent indicated above.