Jitendra Garg vs State Of Madhya Pradesh

This appeal has been filed by the appellant being aggrieved by judgment dated 10th December, 2007 passed by the learned Special Judge (Atrocities), Gwalior in Special Case No. No.101/2006, whereby in a trial, which was conducted against three persons namely; Munna @ Petha, Bhola @ Jitendra Garg and Pawan Garg, learned Special Judge has convicted the present appellant Bhola @ Jitendra Garg of the charges under Section 302 of IPC on account of murder of Bhallu @ Suresh with life imprisonment, whereas he has been acquitted form the charge under Section 3(2)(5) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.

Learned counsel for the appellant submits that as per prosecution story on 05.07.2006 between 5.00-5.30 pm, deceased Bhallu @ Suresh had visited Bagicha Beer Bar alongwith his friend Keshav Maratha. They had called for a bottle of liquor. Accused were also present in the bar and they approached Keshav Maratha and asked him to share bottle of liquor with them but when deceased Bhallu @ Suresh and Keshav Maratha refused to share such bottle of liquor, there was some dispute and they were threatened when accused left. Thereafter between 6.00-6.30 pm Keshav Maratha (P.W.2) was returning from the Beer Bar alongwith the deceased when at Karbari Mohalla in front of house of Ravi Dhobi, accused Pawan and Munna stopped him. In the Meanwhile, present appellant Bhola @ Jitendra came out of the shop of the tailor armed with Baka. When objected the deceased and Keshav Maratha tried to run away but Pawan and Munna Petha exhorted Bhola not to leave him when Bhola @ Jitendra had attacked deceased with Baka on rear side of head, as a result of which deceased started bleeding. At this point, appellant had again attacked the deceased with his Baka, which he tried to save with his hand but the injury caused to the deceased was so fatal that he died subsequently. This incident was seen by Vikram (P.W.1) and Ganesh (P.W.3.)

It is submitted that in fact, FIR (Ex.P/1) was recorded at the instance of Vikram (P.W.1), in which present appellant is a named accused.

Learned counsel for the appellant submits that FIR was lodged under Section 307 of IPC and subsequently appellant was charged under Section 302 of IPC when deceased Bhallu @ Suresh died due to attack by the present appellant. It is submitted that in the FIR itself, it is mentioned that both the deceased and Keshav Maratha were under the influence of alcohol and therefore, out of old enmity present appellant has been falsely implicated.

It is also submitted that Keshav Maratha (P.W.2) and Ganesh (P.W.3) are not natural witnesses but have been implicated subsequently as eye witnesses. It is also submitted that two natural eye witnesses namely, Ravi Dhobi, in front of whose house this incident had taken place and the tailor from whose shop allegedly the appellant had come out to assault the deceased, have not been examined in the case and this renders the prosecution story unreliable.

It is also submitted that Vikram (P.W.1) is related witness being nephew of the deceased and therefore, his testimony cannot be relied solely. It is also submitted that two spot maps were prepared i.e. Ex.P/5 and P/7 respectively on 18.07.2006 and 5. 07.2006 but there is variation in these two spot maps on the basis of which it can be conveniently stated that the prosecution story is not reliable and the appellant has been falsely implicated.

It is also submitted that as per MLC (Ex.P10) deceased had sustained only one head injury and one injury on the left forearm and one on right palm, therefore, at best the matter will go under Section 304 part-II of IPC rather than 302 of IPC with which appellant has been convicted.

It is further submitted that in the spot map (Ex.P/5) there is improvisation and house of Ravi Dhobi is not shown in the spot map. There are no independent witnesses to testify the prosecution story and they have been implanted after lodging of the FIR after substantial period of delay. It is also submitted that Keshav Maratha (P.W.2) and Ganesh (P.W.3) are not real eye witnesses and they have been imported after long delay. It is further submitted that Baka which has been seized has not been subjected to any expert examination to show that it contained any blood stains and though report was sought by the S.P. from the FSL but no FSL report has been filed. Dr.Yogendra Singh (P.W.9) has opined in para 9 of his cross examination that injury on the body of the deceased was caused by hard and blunt object and therefore the prosecution case that the appellant had caused injury by Baka is not made out. It is also submitted that in absence of FSL report on Baka, it can not be affirmatively said that the blood stains which were found on the Baka were that of the deceased.

It is also submitted that there are two witnesses of memo of seizure (Ex.P/15); namely, Mahendra and Ranveer Singh but none of them have been examined by the prosecution to prove the seizure and therefore once the weapon of offence has not been proved by the prosecution, then the prosecution case deserves to fail.

Advancing such arguments, it is submitted that there is difference in the identify of the appellant, inasmuch as in the FIR (Ex.P/1) his cast has been shown as "Nai" whereas he belongs to a different category.

It is also submitted that recovery has not been proved and therefore in the absence of recovery being proved from the petitioner and there being lack of credibility to the so called eye witness account, the appeal deserves to be allowed and be allowed and the conviction recorded by the trial court be set aside.

Learned Public Prosecutor in his turn submits that Arun Kumar Saxena (P.W.8), who was posted as Dy.S.P. at AJK Police Station in July 2006, has proved the recovery to the extent that the appellant had produced said Baka after extracting it from mud from a Nala and it was moon shaped. There was no further cross examination on such recovery as has been proved by P.W.8 in para 7 and in the absence of there being any effective cross examination recovery of Baka can not be doubted at the instance of the appellant Bhola @ Jitendra specially when he had given a memo on 02.08.2006 in regard to committing murder of Bhallu @ Suresh with the aid and help of Baka and this confession is duly corroborated by the recovery, which was made at the relevant time. It is also submitted that eye witness account is so clear that there exists no iota of doubt to suspect the report of eye witness so also his evidence inasmuch as the time-lag between lodging of the FIR and the incident is too less. Incident had taken place on 18.50 hours whereas FIR was lodged at 19.10 hours i.e. within 40 minutes. It is also submitted that the decease died during treatment on 11.7.2006 i.e. after 5-6 days of the matter being reported to the police station and and in the post mortem report, Dr.Yogendra Singh (P.W.9) has categorically noted that death was caused by cardio respiratory failure due to cranial cerebral injuries resulting in death within 3-20 hours of post mortem. It is also submitted that statement of Vikram Singh (P.W.1) was recorded on 5.7.2006 itself and therefore there is no iota of doubt that there was any delay in initiation of the the proceeding to prosecute the appellant of which any advantage may be extended to the appellant. It is also submitted that eye witness account is duly corroborated with the evidence of Dr.Surendra Singh Jaudan (P.W.7), who found three injuries caused by sharp cutting weapon in the present case as is apparent from Ex.P/10 proved by P.W.7. Similarly Dr.Yogendra Singh (P.W.9) has certified that death was caused because of excess bleeding from the circulatory system from the injuries on the head, forearm and palm of the deceased within 3-24 hours of the post mortem. It is submitted that doctor has already categorically pointed out that the ends of the injuries were one caused by sharp cutting weapon and therefore, mere suggestion in cross examination that injury caused on the rear portion of the head could have been sustained on account of an impact of hard and blunt object is not sufficient to discard story of the prosecution.

After hearing the arguments and going through the record, it is apparent that the maps Ex.P/5 and P/7 have been prepared showing different directions, inasmuch as spot map (Ex.P/7) has been prepared as per the directions indicated on such exhibit and houses of Habib Khan and Aziz Khan are on north of the place of the incident. These houses have been marked as 4 and 5. On the east of Karbari Road and on the west Bada of Udai Ghadge has been shown. When spot map (Ex.P/5) is collated as per the directions shown in Ex.P/7, then no discrepancy appears tobe apparent on such spot map (Ex.P/5), on which no directions have been mentioned. Therefore, first argument of learned counsel for the appellant that there is ambiguity in the spot maps (Ex.P/5) and Ex.P/7 is not made out.

Second argument that Baka was not subjected to FSL report is also not of much relevance because as per the seizure memo (Ex.P/15) Baka was recovered at the instance of the appellant from Bada Nala. Once Baka was recovered from Nala, then there were no chance of it containing any blood stain and therefore, FSL report if would have been produced, it would not have been of much substance. There is no dispute that vide Ex.P/18, S.P. Gwalior had sent such Baka alongwith other articles to the Regional Science Laboratory Gwalior, for reporting. Therefore, absence of FSL report will not cause any dent to the prosecution story. In fact, there is corroboration between memorandum (Ex.P/16) given by the accused/appellant and recovery (Ex.P17). Thus, recovery having been made as per the memorandum, requirement of Section 27 of the Evidence Act is fulfilled.

In the postmortem report (Ex.P/19), Dr. Yogendra Singh (P.W.9) had found one stitched wound measuring 15cm with 13 stitches on the left occipital region with ecchymosis. Another wound measuring 6 cm with 6 stitches was found vertically on the occipital region with ecchymosis. There was fracture of contohparietal bone. In fact, deceased was first treated by Dr.Surendra Singh Jadaun (P.W.7), who had conducted MLC on the body of the deceased and he has categorically mentioned that all the three injuries were caused by a sharp object within twelve hours of the incident. This evidence of Dr.Surendra Singh Jadaun (P.W.7) has remained un-rebutted and Dr.Yogendra Singh (P.W.9), who was examined much after examination of Dr. Surendra Singh Jadaun (P.W.7) was never confronted with MLC of the injured (Ex.P/10) or the opinion given by Dr.Surendra Singh Jadaun (P.W.7) that such injuries were caused by a sharp object. Therefore, contention of the learned counsel for the appellant that Dr. Yogendra Singh (P.W.9) in his cross-examination has admitted that such injuries could have been cause by hard and blunt object is not reliable when Dr.Yogendra Singh (P.W.9), who conducted the post mortem was neither confronted with the statement of injuries shown by doctor who conducted the MLC vide Ex.P/10 or was confronted with the statements of Dr.Surendra Singh Jadaun (P.W.7). Even otherwise when such wounds were stitched, as have been mentioned in the postmortem, then it is apparent that such injuries could have been caused by Baka, which is a sharp cutting weapon, could not be ruled out by the defence.

The next argument which has been raised by the learned counsel for the appellant is that Vikram (P.W.1) is not a reliable witness and there is discrepancy in the community of the appellant, inasmuch as in the FIR it is mentioned as 'Nai', whereas in charge sheet he has been shown as Jitendra Garg S/o Ramswaroop Garg. In fact, testimony of Vikram (P.W.1), who is though related to the deceased, is substantially corroborated by Keshav Maratha (P.W.2), who is independent witness. Keshav Maratha (P.W.2) has categorically deposed that appellant had reached at public place coming out of the shop of the tailor armed with Baka and hit Bhallu @ Suresh on his head with Baka, then another Baka was hit on his hand and thereafter, Bhallu had fallen down in the Gali of Munne Khan and when Vikram shouted, then accused persons had ran away. Thereafter, Vikram had taken Bhallu to the police station on a hand cart. Ganesh (P.W.3) has also corroborated this part of the evidence and merely because Vikram (P.W.1) and Ganesh (P.W.3) are related to the deceased is not sufficient to discard their testimony. Vikram (P.W.1) is the author of the FIR and FIR has been lodged within very short duration of less than 40 minutes of the incident taking place. Even Sunil (P.W.4) has corroborated that they had taken the deceased on a hand cart and the distance of the police station is about quarter a kilometer from the place of incident. Therefore, it is apparent that there is no delay in the FIR and the promptness with which the FIR was lodged and only name of one accused has been mentioned there, shows that the FIR has been duly corroborated by evidence of Sunil (P.W.4).

Defence has examined one witness namely Ravi. His evidence gets discarded in the cross examination. He says that he had seen deceased Bhallu standing in front of his house at 7.00 p.m. He has also admitted that he and the accused are residents of same colony. Since FIR was lodged at 7.10 hours, therefore, testimony of the defence witness that deceased was standing in front of his house at 7.00 p.m. gets discarded.

Ocular evidence of Vikram (P.W.1) and Keshav Maratha (P.W.2) is duly corroborated by the medical evidence of Dr.Surendra Singh Jadaun (P.W.7) and Dr.Yogendra Singh (P.W.9) and therefore there is no iota of doubt that prosecution has been able to prove its case beyond reasonable doubt. There is corroboration of the evidence of Keshav Maratha (P.W.2) and Vikram (P.W.1), though evidence of Ganesh (P.W.3) does not appear to be very reliable. Even in the FIR (Ex.P/1) presence of Keshav Maratha (P.W.2) has been shown and therefore some delay of 13 days in recording his statement under Section 161 will not be so fatal so to through out the prosecution story overboard.

It has also come on record that I.O. was not subject to such cross examination as to why there was delay in recording of statement of Keshav Maratha (P.W.2) and in absence of such question being put to such I.O., in the light of the law laid down by the Hon'ble Supreme Court in the case of Bantu @ Guddu Vs. State of M.P. as reported in (2004) 1 SCC 414, delay in recording such statement will not discredit the evidence of Keshav Maratha (P.W.2).

Since there is collegiality in the evidence of Vikram (P.W.1) and Keshav Maratha (P.W.2) as regard to the timing, manner and aggressor so also the weapon of aggression, which is corroborated by medical evidence, this court is of the opinion that the impugned judgment of conviction does not call for any interference and the appellant's counsel has failed to point out any such material on record so as to discard the prosecution story. Therefore, appeal fails and is dismissed.

Record of the trial court be sent back to the trial court.