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2018 Supreme(MP) 766
IN THE HIGH COURT OF MADHYA PRADESH
(DIVISION BENCH)
Huluvadi G. Ramesh and Rajendra Kumar Srivastava, JJ.
Prakash @ Sandu v. State of M. P.
Criminal Appeal No. 1848 of 2009 (Jabalpur); against the judgment dated 25.9.2008 passed by the Additional Judge to the Court of First Additional Sessions Judge, Khandwa in Sessions Trial No. 29/2009; Decided on 30.11.2018
Ms. Manju Khatri, Amicus Curiae for appellant;
Mohit Nayak, Government Advocate for respondent/State.
Headnote:(1) Evidence Act, 1872 -- S.60 -- "related" witness is not equivalent to "interested" witness -- evidence of related witnesses cannot be discarded on this ground -- they are natural witnesses -- present at time of incident -- tried to save life of deceased -- appellant-accused inflicted injuries on them -- evidence of these witnesses wholly reliable -- minor contradictions and omissions -- cannot affect reliability of witnesses. AIR 1981 SC 1390 and (2010)10 SCC 158 followed. [Para 13
(2) Evidence Act, 1872 -- S.27 -- substantial evidence available on record -- seizure of weapon is not important. (2017)11 SCC 195 followed. [Para 14
(3) Penal Code, 1860 -- Ss.302, 450 and 304 -- accused entered house of deceased with knife -- abused him and inflicted knife blow -- not a case where accused was deprived of power of self control by grave and sudden provocation and without premeditation in sudden fight in heat of passion -- if accused inflicted one injury with heavy force on vital part of body then he has knowledge that injury is sufficient in normal course to cause death -- injury fatal in nature -- caused with intention to cause it -- offence will come under section 302, not under section 304 Part-I or 304 Part-II -- finding of trial Court that appellant committed murder of deceased is based upon proper and legal evidence. AIR 2018 SC 1185 and AIR 1958 SC 465 followed. [Paras 15 & 16
¼1½ lk{; vf/kfu;e] 1872 && /kkjk 60 && ßukrsnkjÞ lk{kh ßfgrc)Þ lk{kh ds lerqY; ugha gksrk && ukrsnkj lkf{k;ksa dk lk{; bl vk/kkj ij R;kxk ugha tk ldrk && og LokHkkfod lk{kh gS && ?kVuk ds le; mifLFkr && e`rd dk thou cpkus dk iz;kl fd;k && vihykFkhZ&vfHkqä us mUgsa {kfr;k¡ dkfjr dha && bu lkf{k;ksa dk lk{; iw.kZr% fo'oluh; && xkS.k fojks/kkHkkl vkSj yksi && lkf{k;ksa dh fo'oluh;rk izHkkfor ugha dj ldrsA , vkb vkj 1981 ,l lh 1390 rFkk ¼2010½10 ,l lh lh 158 vuqlfjrA ¼iSjk 13
¼2½ lk{; vf/kfu;e] 1872 &&/kkjk 27 && vfHkys[k ij lkjoku~ lk{; miyC/k && vk;q/k dk vfHkxzg.k egÙoiw.kZ ughaA ¼2017½11 ,l lh lh 195 vuqlfjrA ¼iSjk 14
¼3½ naM lafgrk] 1860 && /kkjk 302] 450 rFkk 304 && vfHk;qä pkdw ysdj e`rd ds ?kj esa izfo"V gqvk && mls xkfy;k¡ nha vkSj pkdw ls izgkj fd;k && ,slk ekeyk ugha tgk¡ xaHkhj vkSj vpkud izdksiu ls rFkk vkos'k dh rhozrk esa fcuk iwoZfparu ds vpkud gq, >xM+s esa vfHk;qä vkRefu;a=.k dh 'kfä ls oafpr gks x;k && ;fn vfHk;qDr us Hkkjh cy ds lkFk 'kjhj ds ekfeZd Hkkx ij ,d {kfr igq¡pkbZ gS rks mls Kku gS fd og {kfr lkekU; vuqØe esa e`R;q dkfjr djus ds fy, i;kZIr gS && {kfr ?kkrd izÑfr dh && mls dkfjr djus ds vk'k; ls dkfjr && vijk/k /kkjk 302 ds v/khu vk,xk] /kkjk 304 Hkkx&1 ;k 304 Hkkx&2 ds vèkhu ugha && fopkj.k U;k;ky; dk fu"d"kZ fd vihykFkhZ us e`rd dh gR;k dh] mfpr vkSj oS/k lk{; ij vk/kkfjr gSA , vkb vkj 2018 ,l lh 1185 rFkk , vkb vkj 1958 ,l lh 465 vuqlfjrA¼iSjk 15 ,oa 16
1. This appeal has been preferred by the appellant against the judgment dated 25.9.2008 passed in Sessions Trial No. 29/2009 by learned Additional Judge to the Court of First Additional Sessions Judge, Khandwa whereby the appellant was held guilty of commission of offence punishable under sections 302 and 450 of IPC and was convicted and sentenced to undergo life imprisonment with fine of Rs. 500/- and R.I. for five years with fine of Rs. 100/- with default stipulation respectively.
2. The prosecution story in short is that on 9.9.2008 at about 7.30 pm complainant Parwati Bai (PW1) was sitting with deceased Dashrath and her son Ankit (PW4) in her house. At this time appellant-accused came to her house where he started abusing the deceased Dasrath, and asked as to why he abused his wife. Thereafter, appellant-accused started using filthy language and assaulted the deceased Dashrath with knife. Deceased Dashrath received injuries over the stomach. Appellant-accused inflicted incised wound in the stomach of deceased Dashrath. Deceased Dashrath cried for help then Sunil (PW2) and Kundan (PW3) came on the spot, then appellant-accused inflicted injuries on them and ran away. Deceased Dashrath was admitted at Primary Health Centre, Pandhana where he was found dead. Sunil (PW2) and Kundan (PW3) were also examined by Dr. Sanjay Parashar (PW14) vide medical report Ex. P-14 and P-15. Parwati Bai (PW1) lodged first information report in the police Station-Pandhana. Dr. H.L. Borasiya (PW15) performed autopsy of the deceased Dashrath vide Ex. P/16-A. Investigation was started. Investigating Officer Town Inspector Ashok Tiwari PW16 issued notice under section 175 of CrPC to the witnesses to remain present during Lash Panchanama . Notice is Ex. P-1. He prepared Lash Panchanama vide Ex. P/2. During investigation appellant-accused was arrested. His statement under section 27 of the Evidence Act was also recorded. On the basis of memorandum vide Ex. P-5 knife was seized from the possession of the appellant-accused vide Ex. P-6. Plain soil and red soil was also seized from the spot vide Ex. P-9. Patwari Kamalchand (PW10) prepared spot map Ex. P-10. Statements of witnesses under section 161 of CrPC were recorded. After completion of the investigation challan was filed.
3. Learned trial Judge thereafter framed charges. Appellant-accused abjured his guilt during trail and pleaded that he has been falsely implicated in the case.
4. Prosecution examined 16 witnesses and no witness was examined by the appellant-accused during trial. The trial Court found that the appellant-accused was guilty of commission of offence punishable under sections 302 and 450 of IPC and awarded sentence of life imprisonment.
5. It is contended by learned counsel for the appellant-accused that trial Judge has failed to appreciate the evidence on record in its proper perspective which has resulted in miscarriage of justice. Seizure of the articles was not proved. There are many omissions and contradictions in the statements of Parwati Bai (PW1), Sunil (PW2), Kundan (PW3), Ankit (PW4) and other witnesses. So the offence under section 302 is not made out because there was no intention of the appellant to commit murder. So learned trial Court has committed error by convicting the appellant-accused. The defence version ought to have been accepted by learned trial judge, so the impugned judgment of conviction and sentence passed by learned Sessions Judge deserves to be quashed.
6. Learned Government Advocate supports the case of prosecution and contends that the judgment passed by the learned trial judge is just and proper and does not warrant any interference.
7. Now the question which arises for consideration first is that whether the appellant caused death of the deceased and inflicted injuries by sharp weapon to Sunil (PW2) and Kundan (PW3) and also entered in the house of complainant.
8. Dr. H.L. Borasiya, (PW15) who performed postmortem of the deceased Dashrath and prepared
