1 HIGH COURT OF MADHYA PRADESH AT JABALPUR DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA HON'BLE SMT JUSTICE VIMLA JAIN CRIMINAL APPEAL No.197/2004 1.Ramswaroop Tiwari S/o Jageshwar Aged 25 years 2.Vijay Bahadur Tiwari S/o Jageshwar Aged 21 years 3.Chhota alias Ramshankar Tiwari S/o Jageshwar Aged 18 years All R/o Village Barband Police Station Goyra District Chhatarpur (MP) Appellants Versus State of Madhya Pradesh Police Station Goyra District Chhatarpur (MP) Respondent --------------------------------------------------------------------------------------------- Shri Jitendra Dixit, Advocate for the appellants. Shri Amit Pandey, Panel Lawyer for the State. Date of hearing :
5. 3.2013 Date of judgment:
19. 3.2013 2 JUDGMENT
Per: Vimla Jain, J Appellants preferred this appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 24.12.2003 passed by 4th Additional Sessions Judge, Chhatarpur in Sessions Trial No.144/1998, whereby each of the appellants has been convicted and sentenced with the direction to run both the sentences concurrently as under:- Provision Sentence Under Section 302/34 of Imprisonment for life and fine of IPC Rs.2000/- and in default of payment of fine, further rigorous imprisonment for one year each. Under Section 201 of Rigorous imprisonment for seven IPC years and fine of Rs.1000/- and in default of payment of fine, further rigorous imprisonment for six months each.
2. It is not in dispute that Ramsuphal alias Sujjan (deceased) was cousin of accused persons.
3. Brief facts of the case are that on 25.3.1998 at about 11:10 pm, complainant Ramnaresh Tiwari lodged first information report (Ex.P/1) at Police Station Goyra that his brother Ramsuphal alias Sujjan and Lala, aged about 8 years 3 had gone to Shyama Tare Wale Khet for the protection of crop of brinjal. At about 3 O'clock, Lala came and told that cattle belonging to accused Ramswaroop had entered the field of Ramsuphal alias Sujjan, who removed the cattle out of his field. Accused Ramswaroop, Vijay Bahadur and Chhota Tiwari came in the field at about 2 O'clock, abused Ramsuphal alias Sujjan, tied a towel around his neck and took him to the NALA of their field. Rakesh, who was cutting his crop in his field also informed that accused Ramswaroop, Vijay Bahadur and Chhota Tiwari had beaten Sujjan and taken him to their field by wrapping and tying a towel around his neck.
4. The complainant alongwith Rakesh, his mother Kaushalya and his sister Rajkumari went to the field but they could not find his brother Ramsuphal alias Sujjan and accused Ramswaroop and others. When they made a search near the field, they found the dead body of Ramsuphal alias Sajjan in a NALA. at about 5 pm. Head of the body was in a hole. The neck was swollen and blackened. The nose was bleeding. Left eye of the deceased had a wound. It is alleged that last year some people had come from Pugri in connection with the marriage of Ramswaroop but as it could 4 not be finalized, Ramswaroop had enmity since then. The accused persons had committed murder of deceased due to such previous animosity and because of the dispute over the entry of cattle in the field.
5. On the basis of the information, Town Inspector of Police Station Goyra registered Marg Intimation No.3/98. The police party reached the spot and started the investigation. Spot map (Ex.P/2) and Inquest Panchnama (Ex.P/4) were prepared by the police. The dead body of deceased was sent for postmortem to Primary Health Centre, Chandla. Dr.J.P.Nayak (PW.7) performed the postmortem and prepared his report (Ex.P/13). Crime No.6/98 was registered against the accused persons at Police Station Goyra for the offence under Section 302/34 of IPC. Statements of witnesses were recorded. During Investigation, Vijay Bahadur and Chhota were arrested vide memo not Ex.P/7. On the basis of memorandum of accused Vijay Bahadur recorded under Section 27 of Evidence Act, a rope used in commission of offence was seized (Ex.P/5). On the basis of memorandum of accused Chhota recorded under Section 27 of Evidence Act, silver chain and key were also seized (Ex.P/6). Accused Ramswaroop was arrested vide memo Ex.P/11. During the 5 course of investigation, mother and father of deceased identified the silver chain and key and its Panchnama (Ex.P/15) was prepared by Tahsildar.
6. After investigation, charge sheet was filed under Sections 302/34 and 201 of IPC against the accused persons before the Court of Judicial Magistrate First Class, Laundi who committed the case to the Court of Sessions, Chhatarpur and ultimately it was transferred to the Court of 4th Additional Sessions Judge, Chhatarpur for trial. On being charged with the offence under the said sections, the accused/appellants pleaded not guilty and complete innocence and claimed to be tried with the prayer that they had been falsely implicated in the case.
7. In order to bring home the charges against the appellants, the prosecution examined nine witnesses and proved fifteen documents (Ex.P/1 to P/15). The appellants did not examine any witness in support of their defence.
8. The learned Court below, after scanning the evidence found the charges proved against the appellants. Therefore, it convicted and sentenced them as stated hereinabove.
9. This appeal has been filed by the appellants 6 assailing the said judgment of conviction and order of sentence.
10. Learned counsel for the appellant submitted that the Court below has committed an error of law in holding the appellants/accused guilty for the offences under Sections 302 and 201 of IPC. He also submitted that the learned trial Court had erred in relying on the testimony of the prosecution witnesses. He has prayed that the appeal deserves to be allowed by setting aside the finding of conviction and order of sentence.
11. On the other hand, learned counsel for the State has supported the finding of the trial Court.
12. We have considered the arguments advanced by learned counsel for the parties and perused the record.
13. The prosecution version essentially rested on circumstances. The trial Court found that the circumstances were sufficient to hold the accused/appellants guilty.
14. The Apex Court in C.Chenga Reddy and others Vs. State of A.P (1996) 10 SCC 193.observed thus :- “In a case based on circumstantial evidence, the settled law is that the circumstances from which the 7 conclusion of guilt is drawn should be fully proved and such circumstances must be conclusive in nature. Moreover, all the circumstances should be complete and there should be no gap left in the chain of evidence. Further the proved circumstances must be consistent only with the hypothesis of the guilt of the accused and totally inconsistent with his innocence.......”
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15. PW.7 Dr.J.P.Nayak conducted the postmortem of deceased Ramsuphal alias Sujjan and opined in his report (Ex.P/13) that the cause of his death was asphyxia due to strangulation. Duration of death and postmortem was between 24 to 48 hours.
16. On external examination, Dr.J.P.Nayak (PW.7) opined that dead body of deceased was lying in supine position. Face was towards right side. Clotted blood present over nostril. Tongue was inside the mouth. One ligature mark was present at the level of thyroid 1 cm broad, Circular intrepted at back, pale and margins' area red and congested. It is parchment like abrasion 1 cm X ½ cm four in number at left side of neck. It may be due to finger nail. One contusion over right side of forehead 3 cm X 2 cm. Abrasion 3 cm X ½ Cm at left side of forehead. Contusion over right maxillary 8 region 3 cm X 1 cm. Multiple abrasion over right cheek 3 cm X ½ cm. Multiple abrasion at anterior aspect of right arm and forearm 3 cm X ½ cm. Multiple abrasion over back side of chest 5 cm X 3 cm. According to Dr.J.P.Nayak (PW.7), the cause of his death was asphyxia due to strangulation. Therefore, it is apparent that injuries caused on his person were fatal in nature and sufficient to cause his death in due course. Looking to the nature of injury, death of Ramsuphal alias Sujjan appears to be homicidal.
17. Lala (PW.4), who is brother of deceased, stated that at about 11 am, he had gone to his field alongwith his brother deceased Ramsuphal alias Sujjan, in whose field cattle of accused Ramswaroop had entered. When he removed the cattle from his field, accused Ramswaroop, Vijay Bahadur and Chhota came there and abused the deceased. Ramswaroop had wrapped and tied the towel around his neck and had given a kick as a result of which he fell to the ground. Chhota caught hold of the leg of deceased and abused him (Lala) saying that go away otherwise they would kill him but he did not leave the spot. Thereafter, all of them were beating deceased and they (Lala and deceased) were crying. After sometime, they had taken Sujjan to their 9 field and he returned to his home and narrated the incident to his mother, brother and sister. Thereafter, his mother, sister, Nanna and Ramhit went to the field for search of Sujjan but he remained in his home.
18. Ramnaresh Tiwari (PW.1), brother of deceased and Kaushalya (PW.2), mother of deceased corroborated the statement of Lala (PW.4) and stated that at about 3 O'clock, Lala came and told that cattle belonging to accused Ramswaroop had entered the field of Ramsuphal alias Sujjan, who removed the cattle out of his field. Accused Ramswaroop, Vijay Bahadur and Chhota Tiwari came in the field at about 2 O'clock, abused Ramsuphal alias Sujjan, tied a towel around his neck and took him to the NALA of their field. They further stated that they went to the field but they could not find Ramsuphal and accused persons. When they made a search near the field, they found the dead body of Ramsuphal alias Sujjan with head in a hole in a NALA at about 5 pm. There was swelling and blackening on his neck. Bleeding from the nose and wound was on left eye of the deceased. Ramnaresh Tiwari (PW.1) further stated that Rakesh also told him that cattle of accused Ramswaroop had entered the field of Ramsuphal. He had removed the cattle 10 out of his field. Due to this reason, accused persons had beaten Ramsuphal.
19. Rakesh Kumar (PW.3) also corroborated the statement of Ramnaresh Tiwari (PW.1) and stated that on the day of the incident, he was at his field and Ramsuphal alias Sujjan and Lala were at their field. His field was adjacent to their field whereas on the other side, field of accused Ramswaroop was adjacent to the field of Lala. At about 2 am, he saw that a dispute over cattle was going on between deceased Ramsuphal and accused Ramswaroop, Vijay Bahadur and Chhota as cattle belonging to Ramswaroop had entered the field of deceased and he had removed the cattle out of his field. He saw that accused persons had wrapped a towel around the neck of deceased and beaten him. Lala, brother of deceased, was present there. The accused persons by beating the deceased had taken him to NALA. When he (Rakesh Kumar) was going to his home, mother, brother and sister of Ramsuphal met him on the way and he narrated the incident to them. The dead body of deceased was found near NALA at about 5 pm in the evening. Ligature mark was present on the neck of deceased and his nose was bleeding.
20. As mentioned earlier, the medical evidence 11 disclosed that on the body of deceased abrasion 1 cm X ½ cm four in number at left side of neck. It may be due to finger nail. One contusion over right side of forehead 3 cm X 2 cm. Abrasion 3 cm X ½ Cm at left side of forehead. Contusion over right maxillary region 3 cm X 1 cm. Multiple abrasion over right cheek 3 cm X ½ cm. Multiple abrasion at anterior aspect of right arm and forearm 3 cm X ½ cm. Multiple abrasion over back side of chest 5 cm X 3 cm. The cause of death was asphyxia due to strangulation. Death of Ramsuphal was homicidal in nature. Period between death and postmortem examination was 24 to 48 hours.
21. As far as recovery of rope, silver chain and key is concerned, attesting witness of the memorandum as well as seizures, Munnilal (PW.5) supported the evidence of Investigating Officer Shiv Mohan Singh Parihar ASI (PW.6). Another witness Sharda Prasad (PW.9) did not support the evidence of investigating officer but he admitted his signature on memorandum of information as well as seizures. It is proved that rope was seized from the possession of the appellant No.2 Vijay Bahadur and silver chain with key was seized from the possession of appellant No.3 Chhota alias Ramshankar”
22. V.P.Pandey, Tahsildar (PW.8) had proved the Identification Panchnama (Ex.P/15) of seized articles silver chain with key. Kaushalya (PW.2) who is the mother of deceased corroborated the statement of V.P.Pandey (PW.8) and stated that when her son Ramsuphal had gone, he had worn a silver chain and key. She also stated that deceased was always wearing a silver chain and key. She further stated that she and her husband had identified silver chain and key.
23. These witnesses had also been subjected to lengthy cross-examination and an attempt was made to bring some contradiction and omission from their earlier statements, but those are not so material as to affect their credibility. Nothing has been brought on record to disbelieve their testimony.
24. The above said statements of witnesses show that accused/appellants had beaten deceased and tied a towel around his neck and taken him to the NALA of their field because the deceased had removed their cattle out from his field. Thereafter, Ramsuphal was found dead. This was the motive of the incident proved by the prosecution.
25. The circumstances enumerated above are inconsistent with their innocence and unerringly point to the 13 guilt of the appellants.
26. Learned counsel for the appellants submits that complainant Ramnaresh Tiwari (PW.1) lodged the report after a delay of nine hours. Therefore, the delay creates a dent in the prosecution story. There is no substance in this argument because it had come on record that police station is 11 kilometers away from the place of incident. Ramnaresh Tiwari (PW.1) clearly stated in paragraph No.9 of his statement that he had gone on foot to lodge the report. The Apex Court in the case of Zahoor and others Vs. State of UP (AIR 199.SC 40.has observed that at any rate mere delay by itself is not enough to reject the prosecution case unless there are clear indications of fabrication.
27. Thus, it is found that the judgment of the trial Court is based on correct appreciation of the evidence placed on record. The chain of circumstances is clearly proved by the prosecution, therefore, this appeal fails and conviction and sentence awarded to the appellants by the Court below are hereby confirmed and the conviction of the appellants on both the counts by the trial Court is confirmed. The sentence of life imprisonment for section 302 of IPC is the minimum sentence and sentence for rigorous imprisonment of seven 14 years under section 201 of IPC is also not excessive in this case. Therefore, such sentence is also confirmed. Thus, both the sentences are confirmed. The appeal having no merits, is accordingly dismissed. (Rakesh Saksena) (Smt.Vimla Jain) Judge Judge amit 15 16