Full Judgment
1 Cr.A No.26/2007 HIGH COURT OF MADHYA PRADESH AT JABALPUR DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA HON'BLE SHRI JUSTICE T.K. KAUSHAL CRIMINAL APPEAL No.26 OF 200.APPELLANT: Feran, S/o Lakhan Lodhi, aged about 28 years, Occupation- Agriculturist, R/o Village-Chandena P.S. Madiado, District- Damoh (M.P) Versus RESPONDENT: State of M.P through police Station- Madiado, District- Damoh (M.P) ****************************************************************** For appellant : Shri Madan Singh, Advocate For Respondent : Smt. Nirmala Nayak, G.A along with Shri Amit Pandey, Panel Lawyer ****************************************************************** Date of hearing :
30. 08/2012 Date of judgment: /09/2012 Per T.K. Kaushal.J:- This appeal has been preferred under section 374(2) of the Code of Criminal Procedure, 1973 (in short Cr.P.C) against the judgment dated 13/10/2006 passed by IInd Additional Sessions Judge, Damoh in Sessions Trial No.147/2003 convicting the appellant under section 302 of the Indian Penal Code for committing murder of Pancham Singh (since deceased) and sentencing him to life imprisonment with fine of Rs.1000/- 2. Facts of the case, in short, are that on 24/03/2003 at about 6.00 am in village-Chandena, Makhan (PW-5) and his father Pancham (the deceased) were loading gunny bags of gram(channa) and uradh in bullock cart for taking them to village- Madiado in 2 Cr.A No.26/2007 shop of Raju Seth. Appellant was taking his she calf towards the field. She calf got startled by such activities in front of the house. Thereafter, appellant having axe along with acquitted co-accused persons came on the spot, started abusing the deceased and assaulted axe blows on the head of the deceased. Deceased fell down on the ground and became unconscious. Attracted by shrieks of PW-5, Maharaj Singh (PW-3), Prahalad (PW-4), Kallo Bai (PW-6) and mother Lalta Bai (PW-8) reached on the spot and brought the deceased on a cot to police station- Madiado District- Damoh. PW- 5 lodged FIR Ex.P-7. A case at Crime No.26/2003 under section 147, 148, 149, 341, 307 IPC was registered against the appellant and 6 other persons. Deceased was referred to Primary Health Centre Madiado for treatment.
3. Dr. K.C. Arya (PW-1) examined his injuries and prepared MLC Report Ex.P-1 and found following injuries on his person:- (i) Lacerated wound 5 X1 1/2 cmX2 cm on left parietal region; (ii) Punctured wound 2X1/2X2cm on left parietal region; (iii) Contusion on right side of chest and advised for x-ray of injury no.1 and forwarded him to District Hospital Damoh for treatment.
4. Deceased was brought to District Hospital Damoh dead. Police prepared Naksha Panchayatnama of the deceased Ex.P- 16. Dr. Y.P Patel (PW-18) conducted postmortem of deceased and prepared Postmortem report Ex.P-17 and found following injuries on his person:- (i) Incised woun”
1. 2X1/2 cm on right ear; (ii) Abrasion 4cmX3 cm on chest near left nipple; (iii) Incised wound 7X1 ½ X bone deep on left parietal region 3 Cr.A No.26/2007 Dr Y.P Patel (PW-18) found corresponding internal injuries like fracture of 5th and 6th rib and found lungs congested. According to postmortem report Ex.P-17 cause of death was coma due to head injuries and death was found to be homicidal in nature.
5. On 25/03/2003 vide Ex.P-22, appellant was arrested. At his instance, from his residence axe was recovered. After completing investigation, police-Madiado submitted charge sheet against the appellant and others in the court of concerned magistrate. Then case was committed for trial to the Sessions court. Trial Court framed charges under sections 148, 341, 302/149 IPC. Appellant abjured guilt. Defence of the appellant in trial court was that of false implication on account of enmity.
6. To substantiate the case of the prosecution, statements of Dr. K.P. Arya (PW-1), Anwar Khan (PW-2), Maharaj Singh (PW-3), Prahlad (PW-4), Makhan, son of deceased (PW-5), Kallo Bai, nice (Bhatiji) of deceased (PW-6), Gulab, S/o Dhilli (PW-7), Lalta Bai, wife of deceased (PW-8), Chaitu (PW-9), Gulab, S/o Jagan (PW-10), Bhagunta (PW-11), Mahesh Mishra, ASI (PW-12), Kishan Singh, Home Guard (PW-13), Ruplal, Constable, (PW-14), Pawan (PW-15), B.S. Rajput, Head Constable (PW-16), Sukhlal, Head Constable (PW-17), Dr. Y.P. Patel (PW-18) and Rajaram, Inspector Police (PW-
19) were recorded. After appreciating aforesaid evidence, trial court acquitted co-accused persons namely Keshu @ Kripal, Ajju @ Ujyar, Hari Singh and Birju @ Brijmohan. However, convicted the appellant alone and sentenced him as above.
7. Challenging the impugned judgment, this appeal has been preferred by appellant on the grounds that prosecution failed to produce any reliable evidence in the case. All independent witnesses did not support the case of prosecution 4 Cr.A No.26/2007 and have been declared hostile. Evidence of family members is suffering from material contradictions and omissions. Version of eye witness has been belied by medical evidence. Conviction is bad in law and sentence is harsh. On the other hand, learned Panel Lawyer supported the impugned judgment and the finding of conviction and sentence both.
8. Dr. K.C. Arya (PW-1) examined the deceased and found three injuries on his person and prepared MLC Report Ex.P-1. He opined that none of the injuries was possible to be caused by sharp edged side of axe. PW-1 found one lacerated wound and punctured wound on parietal region and abrasion on chest.
9. According to Ex.P-1 deceased was examined by PW-1 at 9.45 am. At about 10.00 am PW-1 referred the deceased to District Hospital. Dr. Y.P. Patel (PW-18) conducted postmortem of dead body of the deceased on the same day i.e on 24/03/2003 and according to Ex.P-17 Postmortem Report, it was conducted at about 3.45 pm. According to PW-18, two incised wounds were found on the parietal region of deceased which were possible by sharp edged weapon like axe. It is pertinent to note that in Ex.P-1 MLC Report injury no.1 initially was mentioned as Incised wound, but by scoring out, it was made a lacerated wound.
10. In view of the aforesaid medical evidence, it is evident that death was homicidal and was caused due to head injuries sustained by the deceased.
11. Makhan (PW-5) was present on the spot. He saw the incident. He lodged FIR Ex.P-7 without any delay. It is submitted by learned counsel for appellant that this witness has been declared hostile. This witness has been disbelieved by the trial court in respect of remaining 4 accused persons. 5 Cr.A No.26/2007 Per contra, it is submitted by learned counsel for State that this witness has given a clear and consistent version as against the appellant- Faren in his court statement as well as in FIR and previous statement. Kallo Bai (PW-6) cousin sister of PW-5 saw the appellant causing axe blow on the head of the deceased. This witness has also been declared hostile and has not supported the prosecution in respect of other 4 accused persons. Lalta Bai (PW-8) mother of PW-5, also saw the appellant causing axe blow on the head of his husband. She too was declared hostile and did not support the prosecution in respect of remaining 4 accused persons.
12. Maharaj Singh (PW-3) reached on the spot soon after the incident and saw the deceased in injured condition. According to him son of deceased told to him that appellant caused the injuries to his father. This witness has been declared hostile as he did not support the prosecution in respect of the acts of other accused persons. Prosecution cited him as eye witness. His testimony, thus stands partly reliable and is a corroborative piece of evidence.
13. Chaitu (PW-9), Gulab, S/o Jagan (PW-10), Bhagunta (PW-11) and Prahlad (PW-15) have been declared hostile. They did not support the prosecution. They all are not reliable witnesses.
14. On careful perusal of the evidence of Makhan (PW-5) which has been duly corroborated by evidence of Maharaj Singh (PW-3), Prahlad (PW-4), Kallo Bai (PW-6) and Lalta Bai, wife of deceased (PW-8), it stands proved beyond doubt that appellant assaulted axe blows on the head of the deceased. Testimony of hostile witnesses can be relied upon to the extent to which it finds corroboration and inspires confidence regarding its veracity and truthfulness. Merely, on the basis that these witnesses did not support the prosecution in respect of other 4 accused persons they cannot be disbelieved in respect of appellant regarding whom clear and consistent version 6 Cr.A No.26/2007 has been deposed by all of them. Further merely for the ground that all aforesaid 5 witnesses are interested witnesses being close relatives, their testimony cannot be discarded as it appears truthful otherwise.
15. It is submitted by learned counsel for appellant that medical evidence is contradictory to the evidence of eye witnesses. Dr. K.C. Arya (PW-1) found lacerated wound on the head of the deceased. He specifically stated that such injury cannot be caused by sharp edged weapon. It is possible only by a blunt side of axe. Whereas, Dr.Y.P. Patel (PW-18) found two incised wounds on the head of the deceased on internal examination during postmortem. These are quite possible by axe blows. Axe is a sharp edged weapon. If it is used from blunt side it is an abnormal condition. Injury caused by axe should be an incised wound unless specific evidence about its use of blunt side is available on record.
16. On careful perusal of evidence of eyewitnesses and medical evidence we find no material contradictions in eyewitness account and medical evidence. Sufficient and reliable evidence is available to show that appellant assaulted axe blows on the head of the deceased that caused fatal injuries to him and resulted in his death.
17. As discussed above, we find no error in appreciation of evidence and finding of guilt recorded by trial court. Conviction and sentence of appellant under section 302 IPC deserves to be and is hereby affirmed. Appeal being devoid of merit is hereby dismissed. (RAKESH SAKSENA) (T.K. KAUSHAL) Judge Judge tarun/