Bhajju @ Bhagwandas Kori vs State of Madhya Pradesh

Challenge in this appeal filed under Section 374 of the CrPC is to the conviction and sentence recorded by Sessions Judge, Datia vide judgment

dated 31.10.2000 passed in Sessions Trial No.193/1999, whereby the appellant is convicted under Section 302 of the IPC and sentenced to life

imprisonment.

It would be significant to mention here that coaccused, Khalak Kori, real brother of present appellant could not be arrested during investigation

being absconder, under Section 173(8) of the Cr.P.C. keeping investigation pending against him, charge sheet was filed only against present appellant.

Prosecution story in brief is that on 22nd April, 1999, in the night at 20=30 hours when complainant Rajkumar (PW-4) and Gaffar Khan (PW-1)

were standing and talking near Anand Talkies in town Datia, then complainant's real brother Salli Yadav was talking with appellant Bhajju Kori and

Khalak Kori in connection with their previous financial transactions and appellant Bhajju and Khalak Kori took complainant's brother Salli Yadav with

them. Salli Yadav did not return to his house in the night, hence on next morning, i.e., on 23rd April, 1999 complainant Rajkumar went to house of

Bhajju and Khalak Kori situated at Badapura, Koriana Mohalla, Datia and complainant saw that dead body of his brother Salli Yadav is lying in the

courtyard of house of appellant Bhajju and the dead body was having injury caused by stone over the head and was also having injuries inflicted by

sword. Thereafter Rajkumar with Gaffar went to Police Station Kotwali, Datia and lodged FIR (Ex.P/4) at 8=45 a.m., which was scribed by Town

Inspector A.K.Saxena (PW-12) and merg report was separately registered vide Ex. P/13. A.K.Saxena reached the appellant's house and at 9=10 am

prepared spot map (Ex.P/5) at the instance of complainant Rajkumar and at 10=30 am seized a large blood-stained stone (khanda), a steel utensil

(lota), two parts of a broken sword, glass, ceramic cup, empty pouches of desi liquor and two pairs of sleeper vide seizure memo (Ex.P/8), which

were lying near around the dead body. The bloodstained soil and plain soil were also seized vide seizure memo (Ex. P/8). After issuing safina form

(Ex.P/6) and preparing inquest memo (Ex.P/7) in presence of panch witnesses after inspecting the deadbody, A.K. Saxena sent the dead body for

postmortem to District Hospital, Datia where on same day post-mortem was started at 11=30 hours by Dr. J.P. Sonkar (PW-3), who recorded post-

mortem report (Ex.P/3).

Appellant Bhajju Kori was arrested on 25th July, 1999 vide arrest memo (Ex.P/14) and on the basis of his disclosure statement (memorandum)

(Ex.P/9) a gupti was seized vide seizure memo (Ex.P/11). After completing formalities of the investigation, as another accused Khalak was found

absconding, therefore, describing Khalak absconder chargesheet was filed in the Court of Chief Judicial Magistrate Datia against the present appellant

and the arisen criminal case was committed by Chief Judicial Magistrate to Sessions Judge, Datia.

The charge framed by the Sessions Judge, Datia under Section 302 or in alternative under Section 302/34 of the IPC was denied by the present

appellant. Thirteen prosecution witnesses were examined. It was the defence of the appellant Bhajju before the trial Court that he has been falsely

implicated as prior to the incident he had gone to village Semri, situated near Indergarh and about three months later when he returned back to Datia,

he was captured by the police and he was living separately from his brother Khalak since the year 1992. In defence evidence Ghanshyam (DW-1)

and Jagdish (DW-2) were examined regarding plea of alibi of the appellant and Constable Ramgopal Tripathi (DW-3) was examined in relation to

criminal record of the deceased Salli. The trial Court convicted and sentenced the appellant as aforesaid.

Shri Atul Gupta, learned counsel for the appellant vehemently contended that the evidence of deceased's real brother complainant Rajkumar (PW-

4) and his friend Gaffar Khan (PW-1) regarding last seen of Salli Yadav with appellant Bhajju and his brother near Anand Talkies was not established

beyond reasonable doubt and complainant Rajkumar (PW-4) deposed in his cross-examination that prior to lodging of FIR in next morning the police

has received information regarding incident and has proceeded towards the appellant's house, therefore, it was clear that his FIR was anti-timed.

Similarly it is also argued that by the evidence of Ghanshyam Kori (DW-1), resident of village Semri and from the evidence of appellant's neighbour

Jagdish (DW-2) it was proved that appellant Bhajju on the date of incident was doing the work of construction of the house of Ghanshyam in village

Semri but the trial Court erred in disbelieving the evidence of these defence witnesses. It is also argued that allegedly recovered gupti on disclosure

statement of appellant was not sent to FSL, hence the evidence regarding seizure of gupti was not significant. Therefore, it is prayed that the appeal

filed on behalf of present appellant be allowed and he be acquitted.Â

Per Contra, above-mentioned prayer has been strongly opposed by the Public Prosecutor appearing for the respondent/State on grounds that

deceased Salli Yadav was last seen by two prosecution witnesses with appellant Bhajju and his brother Khalak at about 8=30 p.m. and in next

morning dead body of the deceased was found in the courtyard of house of appellant Bhajju and appellant and his brother absconded after the incident

and appellant Bhajju could be arrested after three months and above charged offence was proved against appellant Bhajju beyond reasonable doubt.

Therefore, dismissal of the appeal is prayed.

It is clear from the evidence of Dr. J.P.Sonkar (PW-3) and his post-mortem report (Ex.P/3) that on 23.4.1999 at 11=30 am at the time of starting of

post-mortem of deceased Salli Yadav, aged about 20 years, he found that rigor mortis was present and deceased's clothes were blood-stained and

following anti-mortem injuries were also found on dead body of the deceased :-

(i) An incised wound, size 4x2x1.5 cm on back of upper part of right forearm;

(ii) An incised wound, size 10x1x1 cm on posterio and lateral aspect of upper part of right upper arm;

(iii) Multiple incised wounds, total six in numbers, situated at back; sizes whereof were 4x1x1cm, 3x1x1cm, 4x1.5x1.5cm, 2x1x1cm, 3x1x1cm and

2.5x1x1cm;

(iv) An incised wound, size 3x2x1cmon back of the lower part of left forearm;

(v) A lacerated wound, size 4x2cm xbone deep, situated at back part of left parietal region;

(vi) Multiple fractures seen in leftparietal bone, right parietal bone, occipital bone, temporal bone, facial bones and sinuses;

(vii) Multiple tearing of meninges(membrane of brain);

(viii) Multiple tearing present in cerebrum and cerebellum.

Dr. Sonkar opined that incised wounds were appearing to be caused by some hard and sharp cutting object whereas lacerated wound and other

injuries found on head, skull and face of the deceased were appearing to be caused by hard and blunt objects and all injuries were appearing to be

caused within 24 hours. Dr. Sonkar deposed that he sealed deceased's white shoes, socks, jeans pant, brown underwear, red and blue t-shirt, white

vest (baniyan) and a belt in a sealed packet and sent them to the relating police station. Dr. Sonkar opined that cause of death of Salli was head injury,

which resulted into multiple fractures of different bones of the skull and injuries caused to brain which lead to shock and nature of death was homicidal

and Salli died within 24 hours prior to starting of postmortem. It was proved from the medical evidence and by other evidence that in the intervening

night of 22nd and 23rd April, 1999 deceased Salli met with a homicidal death and this fact is even not seriously disputed by the appellant's counsel.

It is clear that there is no eye-witness in this case and the case was totally based on circumstantial evidence. On the point of last seen,

complainant Rajkumar (PW-4) and Gaffar Khan (PW1) deposed that in last night before the murder of Salli at about 8=30 pm both of them were

standing near Anand Talkies, then they saw that Salli Yadav was coming towards the talkies with appellant Bhajju and his brother Khalak Kori and

they were mutually talking regarding their previous financial transaction, which was heard by both of them and Salli with appellant Bhajju and his

brother Khalak proceeded further on the way. Complainant

Rajkumar deposed that thereafter in the night, Salli did not return to their house, then in next morning he went to appellant Bhajju's house for searching

Salli, then in the mohalla, where appellant Bhajju was residing named Badapura, not a single person was seen at his house and doors of Bhajju's house

were closed, then he peeped from the gap of the door and saw that dead body of his brother Salli was lying in the courtyard and a khanda of stone

was kept over Salli's head and thereafter he reached Police Station Kotwali, Datia after running and lodged FIR (Ex.P/4) but he also deposed that

before his reaching to police station, the police has proceeded towards the appellant's house and in presence of police officials he again saw dead body

of his brother Salli, which was having injuries caused by heavy stone over head and injuries caused by sword on trunk of the dead body and a sword

was also lying near the dead body and in his presence the police seized from the scene of occurrence a heavy stone (khanda), a broken sword, blood-

stained soil, plain soil, a steel utensil (lota), glass and ceramic cup, two plastic pouches, one steel bowl and two pairs of sleepers of spunj. The

complainant Rajkumar (PW-4) deposed that spot map (Ex.P/5), safina form (Ex.P/6), inquest memo (Ex.P/7) and seizure memo (Ex.P/8) prepared by

Investigating Officer are bearing his signature.Â

Appellant's learned counsel vehemently contended that hearing of talks occurred near a talkies between three persons, who were passing through

the road, could not be heard by the prosecution witnesses who were standing as there remains much noise near the talkies.

Gaffar Khan (PW-1) deposed in crossexamination that when he with complainant saw Salli with appellant and Khalak going on road then there

was no hustle and bustle and noise in front the talkies and at that time he asked to Salli as to where he is going, then Salli replied that he has to recover

money from Bhajju and Khalak, therefore, he is going to their houses for recovery of money. Gaffar Khan admitted that complainant Rajkumar is his

friend. It is clear from the total evidence of complainant Rajkumar (PW-4) that at the time of incident his brother Salli was jointly living with him and

prior to incident he was knowing that Salli has to recover Rs.8000/- from appellant Bhajju.

The scribe of FIR, A.K.Saxena (PW-12) deposed that on 23rd April, 1999 in the morning at 8=35 am he recorded FIR as narrated by complainant

Rajkumar and at the same time he recorded merg report (Ex.P/13) also and after recording merg report he reached the appellant's house situated in

Koriana Mohalla, Datia and found that deceased Salli's dead body was lying in the courtyard which was situated inside the house of appellant Bhajju

and nearby khanda of stone, broken sword, some utensils, two empty pouches of liquor and two pairs of sleeper were also lying which were seized by

him. 14. Complainant Rajkumar (PW-4) has clearly deposed that as in the intervening night his brother Salli did not return back to his house, therefore

in next morning he reached appellant Bhajju's house for enquiring about Salli. If the complainant would not have seen his brother Salli in the company

of appellant Bhajju in last night, then complainant's such conduct would not have been possible. In the next morning after visiting the appellant's house,

he promptly lodged FIR (Ex.P/4) which substantially corroborates the evidence of complainant. Even the neighbour of appellant Bhajju, Jagdish, who

was examined for the appellant as DW-2 before the trial Court, deposed that on the date of incident dead body of a male of Yadav caste, who was

having criminal history, was lying in the house of appellant Bhajju and in cross-examination (para 8), Jagdish also deposed that though appellant

Bhajju's house was locked, there was talk of town that a dead body is lying in the house of appellant Bhajju and he had also seen from outside of the

appellant's house that a dead body was lying inside the house of appellant Bhajju. Therefore, on this point complainant Rajkumar's evidence is also

corroborated by the evidence of Jagdish (DW-2) that the dead body lying inside the house of appellant Bhajju was seen by him also, then

complainant's above-mentioned evidence could not be doubted.

Much emphasis has been given by the appellant's learned counsel on the fact deposed by the complainant Rajkumar in his evidence that when he

reached the police station for lodging the FIR, the police has proceeded towards the house of appellant prior to it. It is true that complainant admitted

in his cross-examination (para 11) that when he reached the police station, then he learnt that before his reaching to police station, police has

proceeded towards the appellant Bhajju's house and when he returned back to appellant's house after lodging the FIR, then some police personnel

were standing in the courtyard of house of the appellant Bhajju. It was suggested to complainant Rajkumar (PW-4) in his cross-examination (para 16)

that the dead body of Salli was lying in the lane in front the house of appellant Bhajju but this suggestion was clearly denied by the complainant. The

abovementioned defence witness Jagdish (DW-2) has clearly deposed that Salli Yadav's dead body was lying inside the house of appellant Bhajju and

he had also seen that dead body. Therefore, the argument advanced by the appellant's learned counsel on above-mentioned point appears to be

meaningless and futile.

Regarding improvements or exaggerations made by some of the prosecution witnesses, it has been observed by the Apex Court in the case of

State of UP vs. Anil Singh (AIR 1988 SC 1998) as follows :-

“13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is

rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases,

the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the

public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to

reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for

want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or

embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a

good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini, 24 Cal WN 626 :

(AIR 1919 PC 157), the Privy Council had this to say:

That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly

unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence.

In Abdul Gani v. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an

easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort

to disengage the truth from falsehood and to sift the grain from the chaff.

It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no

ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the

Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly

to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent

man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the

Judge has to perform.â€​

Investigating Officer A.K.Saxena (PW-12), who also scribed the FIR has clearly denied in his crossexamination (para 13) the suggestion given by

learned defence counsel that he reached at the scene of occurrence prior to lodging of FIR. The Investigating Officer clearly deposed that after

recording FIR he reached at the scene of occurrence, where he saw that nearby houses were locked. In para 14 he deposed that at that time no

family member of appellant Bhajju Kori was present at his house. The defence witness Jagdish (DW-2) deposed that appellant Bhajju's house was

locked since two months prior to the incident, but no suggestion was given to the Investigating Officer A.K.Saxena (PW-12) and even to complainant

Rajkumar (PW-4) that in the morning of 23rd April, 1999 appellant Bhajju's house was locked. Therefore, it is clear that the above-mentioned

evidence given by Jagdish (DW-2) is afterthought and unbelievable. It could not be imagined that a dead body of a deceased person having so many

fractures over his head and some incised wounds on his body could be brought or thrown in a locked house. On the other hand, near around the dead

body steel utensil, ceramic cup, glass, empty plastic pouches of liquor and two pairs of sleepers were also found, which impliedly points towards the

activities occurred in the appellant Bhajju's house prior to the gruesome murder.

Govind (PW-11), cousin brother of the deceased was declared hostile by the prosecution, as he did not give evidence before the trial Court in total

accordance with his police statement (Ex.P/12), but he clearly deposed that the dead body of Salli Yadav was found inside the house of appellant

Bhajju and after receiving information, he reached the appellant's house, but at that time appellant was not present and appellant's family members

were also absent and besides the deadbody, a khanda of stone, pieces of sword, glass, ceramic cup and pairs of sleepers were also lying on spot.

Govind also proved his signatures on spot map (Ex.P/5), safina form (Ex.P/6), inquest memo (Ex.P/7) and seizure memo (Ex.P/8). Appellant Bhajju's

other neighbourer Summer (PW-2) was declared hostile by the prosecution, who deposed that appellant is his neighbour living in same mohalla, but he

admitted that when he returned in the evening after his labour work to his house, then it was talk of the town that Khalak and Bhajju Kori have

murdered Salli Yadav.

Deceased Salli Yadav's dead body having multiple injuries was found in the house of appellant Bhajju. Even the neighbour of appellant Summer

(PW-2) has deposed nothing regarding absence of Bhajju from his house prior to the incident.

The prosecution's case against the present appellant is not based only on sole circumstance of appellant's last seen with deceased Salli Yadav, but

the dead body of the deceased was found inside the house of appellant Bhajju with so many abovementioned articles.

One other significant fact is regarding abscondence of both the named accused persons just after recording the FIR (Ex.P/4) against them. It is

clear from the spot map (Ex.P/5) prepared by the Investigating Officer A.K.Saxena (PW-12) that the house of absconding accused is adjacent to the

house of appellant Bhajju on southern side and there appears a common wall between the houses of Bhajju and Khalak. It is clear from the impugned

judgment that real brother of the present appellant Khalak was absconding till passing of the impugned judgment by the trial Court and present

appellant Bhajju Kori was arrested by the-then S.H.O. of Police Station Kotwali, Datia Rajendra Pathak (PW-13) on 25th July, 1999 vide arrest

memo (Ex.P/14), which indicates that the appellant could be arrested after a period of more than three months after named FIR (Ex.P/4) was lodged

against him on 23rd April, 1999. His real brother co-accused Khalak Kori is still absconding. In the light of the case of Sidhartha Vashisht @ Manu

Sharma vs. State (NCT of Delh) [(2010) 6 SCC 1], the proved abscondence of appellant for more than three months after the incident provides an

additional circumstance against him to connect him with the incident, as A.K.Saxena (PW-12) has clearly deposed that on 23rd April, 1999 neither

appellant Bhajju nor his family members were present at the appellant's house.

Much emphasis has been given by the learned counsel for the appellant Bhajju that allegedly seized khanda of stone and other seized articles were

not sent for examination to FSL and no report of FSL has been filed or proved by the prosecution. It appears from the evidence of another

Investigating Officer Rajendra Pathak (PW-13), who offered explanation in para 7, that as co-accused Khalak Kori could not be arrested and there

was possibility of recovery of blood-stained clothes of Khalak Kori, therefore, the seized articles were not sent to FSL for chemical examination as

investigation was pending and he was transferred from Kotwali Datia in the month of January, 2000. In the light of the case of State of Punjab vs.

Gurmit Singh and others [AIR 1996 SC 1393]; Krishnegowda vs. State of Karnataka (AIR 2017 SC 1657), and Sudha Renukaiah vs. State of A.P.

(AIR 2017 SC 2124), it is clear that the complainant or victim is having no control over the Investigating Officer and only due to negligence or defect

of investigation the evidence of otherwise reliable witnesses could not be discarded.

It is well established that when a dead body is found in a house, then occupier of the house is required to offer satisfactory explanation on this

point but it appears from the perusal of recorded examination conducted by the trial Court of appellant Bhajju under Section 313 of the Cr.P.C. that he

has offered explanation that he had gone to village Semri situated near Indergarh for labour work and he returned back to Datia after three months,

and then police captured him from his house (answer to question No.33 of relating questionair) and he was living separately from his brother Khalak

since the year 1992. It would be significant to mention here that appellant Bhajju had not disclosed any fact regarding absence of his wife or other

family members from his house situated at Datia and it was also not disclosed that during this period of three months his house was locked. It would

be significant to mention here that appellant's neighbour Jagdish (DW-2) deposed that other members of appellant Bhajju's family had also gone out of

Datia for labour work, but Ghanshyam (DW-1), resident of village Semri deposed that appellant Bhajju alone was living and doing his labour work at

village Semri. Jagdish (DW-2) has deposed in para 7 that when appellant Bhajju had gone for his labour work out of Datia then appellant Bhajju's wife

was at her parent's house and appellant's mother had also gone for labour work to another village, but these facts were not disclosed by appellant

Bhajju in his examination. Therefore, the facts deposed by Jagdish (DW-2) regarding absence of appellant Bhajju's other family members from his

house appears to be totally afterthought and unbelievable.

It is well established in reference to plea of alibi raised by the accused that this plea should be raised from the beginning of the case, whereas it

appears that no suggestion was given to the prosecution witnesses Gaffar Khan (PW-1) and complainant Rajkumar (PW-4) in their crossexamination

by defence counsel that on the date of incident or prior to it appellant Bhajju was residing in village Semri. Such suggestion was not given even to

Investigating Officer A.K.Saxena (PW-12) in his cross-examination and to another partial Investigating Officer Rajendra Pathak (PW-13). Therefore,

it is clear that the plea of alibi raised by appellant Bhajju for the first time in his examination conducted by the trial Court under Section 313 of the

CrPC appears to be afterthought.

Ghanshyam (DW-1) clearly deposed that appellant Bhajju alone has done work of his house construction for a month only and at that time he was

paying Rs.100/- per day to Bhajju for his work and at that time Bhajju was also residing and sleeping in his house and both the times food was also

provided by him to appellant Bhajju and during the period of one month, when appellant Bhajju worked for him, Bhajju did not go outside and

continuously worked at his house, but Ghanshyam remained unable to mention about the dates on which appellant has worked for him. Ghanshyam

Kori (DW-1) denied the suggestion given by prosecution in his evidence that the appellant is his relative but Jagdish (DW-2) neighbour of the appellant

Bhajju deposed in cross-examination that the appellant is his caste-fellow and defence witness Ghanshyam is also his caste-fellow, who visits his

house and Ghanshyam also visits the appellant's house on the occasions of marriage and other similar occasions.

It would be significant to mention here that Ghanshyam (DW-1) has clearly deposed that appellant Bhajju worked in his village only for a period of

one month, whereas the appellant has disclosed the fact in his examination under Section 313 of the CrPC that he worked in village Semri for three

months and thereafter he was arrested. It is clear that Ghanshyam's total evidence did not corroborate the appellant's plea regarding his absence for

three months just after registration of relating crime. It is clear that Ghanshyam (DW-1) and Jagdish (DW-2) are caste-fellow and Jagdish is

neighbour of the appellant, therefore, their afterthought evidence is not capable for destroying the veracity of evidence given by prosecution witnesses

Gaffar Khan (PW-1) and complainant Rajkumar (PW-4) regarding presence of appellant Bhajju on 22nd April, 1999 at Datia.

It has also been argued by the appellant's learned counsel that deceased Salli was having criminal antecedents, but Ramgopal Tripathi (DW2), who

brought the criminal record from Police Station Kotwali Datia on 20.10.2000 deposed that only two crimes, one bearing No. 238/1995 regarding

offence under Section 341, 294, 507 of the IPC, and another crime No. 105/1999 regarding offence punishable under Section 336 of the IPC, were

registered against the deceased and deceased was even not arrested in crime No. 105/1999. The relating offences of both these crimes are much

minor offences, which do not indicate that the deceased was a hardened criminal. Therefore, the possibility pointed out by the learned counsel for the

appellant that deceased Salli Yadav's enemies could have murdered him and have thrown his dead body in the house of appellant Bhajju appears to be

totally a high flight of imagination only.Â

We are of the considered opinion that the trial Court has properly and legally analyzed the entire evidence available on record in the light of

referred citations and did not err in convicting and sentencing the appellant for the charged offence. The appellant's appeal appears to be totally devoid

of any substance.

Consequently, the appeal filed by the appellant against his above mentioned conviction and sentence as recorded by the trial Court is dismissed and

his recorded conviction and sentence are affirmed. Appellant-Bhajju is on bail after suspending his sentence by this Court. He is directed to

immediately surrender before the trial Court to serve out his remaining jail sentence.

 With a copy of the judgment record of the trial Court be immediately sent back.