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MADHYA PRADESH HIGH COURT
Shantanu Kemkar and Sushil Kumar Gupta, JJ.
Manoj Kumar and another v. State of M.P.
Criminal Appeal No.2362 of 2010 (Jabalpur) : against the judgment of conviction dated 13.10.2010, passed by IInd Additional Sessions Judge, Damoh in Sessions Trial No.166 of 2008; Decided on 9.7.2015.
Held : By the evidence of both the witnesses, in our opinion, it is clear evident that deceased Pradeep Yadav died because of the injuries sustained by the sharp weapon.
It is not necessary that every eye-witnesses should support the prosecution story. Even if one or two eye-witnesses support the prosecution story and their evidence inspire confidence, it is sufficient to convict the accused.
In the present case appellant took away deceased on bike immediately before the incident and within one hour they kill deceased by means of knives by inflicting on the vital part of deceased that proves clear cut intention of appellant to commit murder of deceased. AIR 1983 SC 753 and (2008)13 SCC 271 followed.
(2) Penal Code, 1860 -- S.300 -- Criminal P.C., 1973 -- S.313 -- Evidence Act, 1872 -- S.27 -- appeal against conviction -- this case not covered within any exceptions as enumerated under -- it is clearly culpable homicide amounting to murder -- it is proved that appellants took away deceased on bike immediately before incident -- and they killed deceased by means of knives by inflicting on vital part of deceased -- knives were recovered from appellants on basis of memorandum recorded under -- testimony of relative witnesses cannot be thrown out only on basis of their relation with deceased -- appeal dismissed -- conviction and sentence affirmed.
Held : On the aforesaid discussion and in the facts and circumstances this case does not cover within any exceptions as enumerated in section 300 of the Code 1860, therefore it is clear cut culpable homicide amounting to murder of deceased Pradeep Yadav.
We are of the considered opinion that learned trial Court did not commit any error in relying upon the evidence adduced by the prosecution and holding appellants guilty of intentionally causing death of deceased Pradeep Yadav by means of knives, therefore the appeal filed by the appellants against their conviction and sentence fails and is hereby dismissed. Their conviction under section 302 read with section 34 of the Code 1860 are hereby affirmed and their sentences as described in para No.1 are also hereby affirmed. (2005)9 SCC 71, (2003)3 SCC 528, 1990 Supp.(1) SCC 257 and (2012)11 SCC 592 distinguished.
¼1½ naM lafgrk] 1860 && /kkjk 302 lgifBr /kkjk 34 rFkk 304 && nks"kflf) ds fo#) vihy && nksuksa izR;{kn'khZ lkf{k;ksa dk ijh{k.k fd;k x;k fdarq muds dFku ij vfo'okl djus ds fy, dqN&Hkh izLrqr ugha && ;g fl) gS fd vihykFkhZx.k e`rd dks ?kVuk ds Bhd iwoZ nqifg;k okgu ij ys x, && tks fd vihykFkhZZx.k dh vius ijh{k.k esa LohdkjksfDr ls Hkh lefFkZr gS && vihykFkhZx.k dk Kkiu vfHkfyf[kr fd;k x;k rFkk mlds vk/kkj ij pkdw cjken fd, x, && ;g lkQ rkSj ij lqLi"V gS fd e`rd dh e`R;q /kkjnkj gfFk;kj }kjk igq¡pkbZ xbZ pksVksa }kjk gqbZ && e`rd dh gR;k djus dk Li"V vk'k; fl) && fopkj.k U;k;ky; }kjk] vfHk;kstu }kjk izLrqr dh xbZ lk{; ij fo'okl djus esa rFkk e`rd dh gR;k djus ds vk'k; ls e`R;q dkfjr djus ds fy, nks"kh Bgjkus esa dksbZ =qfV ugha dh && vihy [kkfjt && nks"kflf) rFkk naMkns'k vfHkiq"VA vfHkfu/kkZfjr % nksuksa lkf{k;ksa dh lk{; ls esjh jk; esa] ;g lkQ rkSj ij lqLi"V gS fd e`rd iznhi ;kno dh e`R;q /kkjnkj gfFk;kj }kjk igq¡pkbZ xbZ pksVksa ds dkj.k gqbZA ;g vko';d ugha gS fd izR;sd izR;{kn'khZ lk{kh dks vfHk;kstu ds o`Ùkkar dk leFkZu djuk pkfg,A ;fn,d ;k nks izR;{kn'khZ lk{kh Hkh vfHk;kstu ds o`Ùkkar dk rFkk mudh lk{; dk leFkZu djrs gSa] fo'okl dks izsfjr djrs gSaA ;g vfHk;qDr dks nks"kfl) djus ds fy, i;kZIr gSA orZeku ekeys esa] vihykFkhZx.k e`rd dks ?kVuk ds Bhd iwoZ nqifg;k okgu ij ys x, rFkk,d ?kaVs ds vanj mUgksaus e`rd dks mlds ekfeZd Hkkx ij pkdqvksa }kjk pksV igq¡pkdj ekj fn;k tks fd e`rd dh gR;k djus dk vihykFkhZx.k dk Li"V vk'k; fl) djrk gSA, vkb vkj 1983,l lh 753 rFkk ¼2008½13,l lh lh 271 vuqlfjrA ¼2½ naM lafgrk] 1860 && /kkjk 300 && naM izfØ;k lafgrk] 1973 && /kkjk 313 && lk{; vfèkfu;e] 1872 && /kkjk 27 && nks"kflf) ds fo#) vihy && ;g ekeyk mica/kksa ds vèkhu izxf.kr vioknksa esa ls fdlh ds Hkh varxZr ugha && ;g Li"V :i ls gR;k dh dksfV esa vkus okyk vkijkf/kd ekuo o/k gS && ;g fl) gS fd vihykFkhZx.k e`rd dks ?kVuk ds Bhd iwoZ nqifg;k okgu ij ys x, rFkk mUgksaus e`rd ds ekfeZd Hkkx ij pkdqvksa ls pksV igq¡pkdj ekj fn;k && mica/kksa ds v/khu vfHkfyf[kr Kkiu ds vk/kkj ij vihykFkhZx.k ls pkdw cjken fd, x, && ukrsnkj lk{kh dh ifjlk{; dks dsoy muds e`rd ds lkFk laca/kksa ds vkèkkj ij vLohdkj ugha fd;k tk ldrk && vihy [kkfjt && nks"kflf) rFkk naMkns'k vfHkiq"VA vfHkfu/kkZfjr % iwoZ dfFkr fopkj&foe'kZ rFkk rF;,oa ifjfLFkfr;ksa esa] ;g ekeyk vf/kfu;e] 1860 dh /kkjk 300 esa izxf.kr vioknksa esa ls fdlh Hkh ds varxZr ugha gS blfy, ;g e`rd iznhi ;kno dk Li"V gR;k dh dksfV esa vkus okyk ekuo o/k gSA gekjh ;g lqfopkfjr jk; gS fd fo}ku fopkj.k U;k;ky; us vfHk;kstu }kjk izLrqr lk{; ij fo'okl djus esa rFkk vihykFkhZx.k dks e`rd iznhi ;kno dh pkdqvksa }kjk vk'k; ls e`R;q dkfjr djus esa dksbZ =qfV dkfjr ugha dh gS blfy, vihykFkhZx.k }kjk viuh nks"kflf) rFkk naMkns'k ds fo#) izLrqr vihy vlQy gksdj,rn~}kjk [kkfjt dh tkrh gSA mudh vf/kfu;e] 1860 dh /kkjk 302 lgifBr /kkjk 34 ds v/khu nks"kflf),rn~}kjk vfHkiq"V rFkk iSjk la[;k 1 esa of.kZr naMkns'k Hkh,rn~}kjk vfHkiq"VA ¼2005½9,l lh lh 71] ¼2003½3,l lh lh 528] 1990 lIyh-¼1½,l lh lh 257 rFkk ¼2012½11,l lh lh 592 izHksfnrA ¼iSjk 45,oa 46
Gupta, J. -- 1. This appeal has been preferred against the judgment of conviction dated 13.10.2010 passed by the IInd Additional Sessions Judge, Damoh in Sessions Trial No.166/2008, where by the appellants have been convicted for the offence punishable under section 302 read with section 34 of Indian Penal Code, 1860 (hereinafter referred to as ‘Code 1860’ for short) and sentenced to life imprisonment with fine of Rs.500/- and in default, to suffer R.I. for 3 months to each.
2. The prosecution story, in short, is that on 11.5.2008 about 9:30 p.m., Balkrishna lodged a report to the effect that at 9:00 p.m. when he was returning to his home along with Shobhit Gupta, Nitin Vishwakarma and Bharat Yadav, in front of Municipality on the Station Road, Damoh, he saw Umesh Chamar and Manoj Mehtar were stabbing his uncle Pradeep Yadav by knife at that time Munna @ Roop Narayan Ahirwar also ran for assaulting him, I caught hold of him but he fled. Sonu Mehtar also stabbed to Pradeep by knife, due to which his uncle (Pradeep) sustained injuries and he fell down. On account of previous enmity and with intention to commit murder of his uncle, all the four accused inflicted knife injuries. On account of this assault his uncle sustained two incised injuries on his stomach and many wounds on the back and thigh. Shobhit Gupta, Nitin Vishwakarma and Bharat Yadav had seen the incident. The uncle was brought to the police station in rickshaw. He was unable to speak properly. After registration of report and completion of investigation challan was filed against appellants under section 302/34 of Code 1860.
3. The learned trial Judge framed charges punishable under section 302 read with section 34 of the Code 1860 against accused Manoj and under section 302 in alternate 302/34 of the Code 1860 against accused Umesh. Both the accused abjured their guilt and pleaded false implication. In defence, they examined three defence witnesses namely Ayodhya Prasad (DW1). Jitendra Kumar Raikwar (DW2) and Durgesh Gupta (DW3).
4. In order to prove the charges the prosecution examined as many as fifteen witnesses and placed Exs.P-1 to P-24 the documents on record. Though the defence of the accused persons is false implication, but no specific defence has been taken in their statement recorded under section 313 of Criminal Procedure Code, 1973 (hereinafter referred to as ‘Code 1973’ for short).
5. The learned trial Court after appreciating and marshalling evidence came to hold that the appellants have committed the offence under section 302 of the Code, 1860 and eventually convicted them and passed the sentence which is mentioned in the impugned judgment.
6. In this manner, the present appeal has been filed by the appellants assailing the judgment of the conviction and order of sentence.
7. Appellants/accused are challenging the conviction and sentence passed by the learned trial Court on the ground that there is material contradiction and omission in the statements of prosecution witnesses. The findings and conclusion of the trial Court are erroneous and illegal. At the place of incident there was darkness due to night time and visibility was very poor, therefore, it is extremely doubtful that the witnesses examined by the prosecution could identified the accused persons as the assailant of the deceased. The learned trial Court failed to appreciate the fact that Nitin Vishwakarma (PW13), who was declared hostile has denied to see the incident while as per prosecution, he was with Balkrishna Yadav (PW6) and Bharat Yadav (PW8) at the relevant time. The trial Court failed to appreciate the evidence of prosecution witnesses in proper perspective inasmuch as their statements do not tally with the statements recorded by the Police during investigation. The statements of Balkrishna Yadav (PW6) and Bharat Yadav (PW8) appear to be totally doubtful and unreliable. The trial Court has failed to see that at the time of incident, there were large number of persons in front o
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