Manoj & Anr. vs State Of Madhya Pradesh

This criminal appeal has been filed under Section 374 of the Cr.P.C. against the judgment dated 09.10.2007 passed by Sessions Judge, Bhopal in

Sessions Trial No.112/2007, whereby the learned Judge found appellant Manoj guilty for the offence punishable under Section 302 of IPC and

appellant Suryabhan guilty for the offence punishable under Section 302/34 of IPC and sentenced both of them to undergo life imprisonment with fine

of Rs.5,000/- with default stipulation respectively.

Brief facts of the prosecution case are that on 15.02.2006 at about 9 PM when Kheman Bai (PW/1) was cooking food in her house, her son

Abhijeet (PW/2) came there and told her that appellants Manoj and Suryabhan were assaulting his father in uncle’s house. On that Kheman Bai

(PW/1) Â went to the place along with Abhijeet (PW/2), where she saw that appellant Suryabhan had caught hold of the hands of her husband,

Vishwajeet and appellant Manoj was standing there armed with knife, when she tried to rescue her husband, appellant Suryabhan caught hold of her

hair and threw her, due to which, she fell down and appellant Manoj inflicted injury by knife to her husband Vishwajeet in his chest. On that,

Vishwajeet fell down and blood started oozing out from his body and thereafter the appellants ran away from the spot. She took Vishwajeet with the

help of Vijay (PW/3) to J.P. Hospital by Auto where Dr. Prashant Kumar Jain (PW/12) examined Vishwajeet and declared him dead and gave report

(Ex.P/16) and also informed the police in this regard. On that ASI G.S. Sengar (PW/7)Â went to hospital, Kheman Bai (PW/1) narrated the incident

to him. On that, he wrote FIR (dehati nalsi) (Ex.P/1) and sent it to Police Station for its original registration. On that Crime No.93/2007 for the offence

punishable under Section 302/34 of IPC was registered at Police Station Govind Pura against the appellants by Inspector Rajkumar Sharma (PW/9)

and during investigation of that crime, M.L. Choudhary (PW/10) went to spot and seized blood stained soil and simple soil from the spot and prepared

seizure memo (Ex.P/2) and also prepared spot map (Ex.P/14). A.S.I D.S. Patel prepared inquest report of dead body of deceased Vishwajeet and

sent it for postmortem. Dr. D.S.Badkur (PW/6) conducted the postmortem of dead body of deceased Vishwajeet and gave autopsy report (Ex.P/5)

and also seized blood stained clothes from the body of deceased and handed it over to concerned constable in a sealed packet who brought that packet

to P.S. Govind Pura where A.S.I. Rajeev Lochan Pande (PW/11) seized that packet from his possession and prepared seizure memo (Ex.P/15). R.K.

Sharma (PW/9) during investigation recorded the statements of Kheman Bai (PW/1), Abhijeet (PW/2) and Vijay (PW/3). On 16.02.2007, he arrested

appellants and prepared arrest memo (Ex.P/11 & Ex.P/12) and on the information of appellant Manoj he seized one scissor from his possession and

prepared information memo (Ex.P/3) and seizure memo (Ex.P/4) and also sent seized scissor for query to Dr D.S. Badkur (PW/6) and queriedÂ

whether the injury sustained by Vishwajeet could be caused by that scissor. On that Dr D.S. Badkur (PW/6) after examining that scissor gave query

report (Ex.P/7) to the effect that the injuries No.1, 6 and 7 sustained by Vishwajeet could be caused by that scissor. R.K. Sharma (PW/9) also

sent all seized article for chemical examination along with draft (Ex.P/13) to FSL Bhopal. From where report was received. The police after

investigation filed the chargesheet before JMFC, Bhopal, who committed the case to the Court of Sessions. On that charge-sheet, S.T.No.112/2007

was registered. Learned Sessions Judge framed charge for the offence punishable under Section 302 against the appellant Manoj and under Section

302/34 of IPC against the appellant Suryabhan and tried the case. Although, appellants abjured their guilt and took the defence that they are innocent

and falsely been implicated in the crime and they also gave statement in his defence under Section 315 of Cr.P.C. and also produced defence

witnesses Hemu Bai (DW/1), Manohar (DW/2), Madhukar Patil (DW/3) on the point that in the incident quarrel took place between Vishwajeet and

Kheman Bai (PW/1) and when they were fighting with each other, Manoj went there and intervened on which Kheman Bai hit Manoj with stone

causing him to be hurt and later Khemai Bai logged the false report against the appellants. However, after trial learned Sessions Judge found the

appellant Manoj guilty for the offence punishable under Section 302 of IPC and appellant Suryabhan guilty for the offence punishable under Section

302/34 of IPC and sentenced them as aforesaid.

Being aggrieved from that judgment, appellants filed this Criminal Appeal.

Learned counsel for the appellants submitted that learned trial court without properly appreciating the prosecution evidence wrongly found the

appellants guilty for the aforesaid offences. The so called eyewitnesses Kheman Bai (PW/1) and Abhijeet (PW/2) are relatives of the deceased

Vishwajeet and Vijay (PW/3) is also an interested witness. Police did not produce any independent witness regarding the incident. There are

omissions and contradictions in the statements of Kheman Bai (PW/1), Abhijeet (PW/2) & Vijay (PW/3) regarding incident. It is clear from their

cross-examination that they did not see the incident. They gave false statement against appellants. Learned trial court without appreciating all these

facts wrongly found appellants guilty for the aforesaid offences. Even otherwise the eyewitnesses of the incident i.e., Kheman Bai (PW/1), Abhijeet

(PW/2) & Vijay (PW/3) did not state that appellant Suryabhan also assaulted deceased Vishwajeet, so no offence is made out against appellant

Suryabhan. Learned Trial Court wrongly found the appellant Suryabhan guilty for the offence punishable under Section 302/34. As far as the appellant

Manoj is concerned, from the statement of Kheman Bai (PW/1), it only appears that in the quarrel appellant Manoj inflicted only one injury on

deceased Vishwajeet. In these circumstances, his act at the most comes under Section 304 Part II of IPC. Hence, counsel prayed that the impugned

judgment be set aside and the appellants be acquitted from the said offences.

On the other hand, learned counsel for the respondent/State has vehemently opposed the submissions of the counsel for the appellants and fully

supported the judgment of the Trial Court and submitted that from the statement of prosecution witnesses, it clearly appears that in the incident

appellant Suryabhan caught hold of Vishwajeet’s hands and thereafter appellant Manoj assaulted fatal blow on his chest by knife/scissor. So

learned trial Court did not commit any mistake in holding the appellants Suryabhan and Manoj guilty for the offences punishable under Sections 302/34

& 302 of IPC respectively and prayed for rejection of appeal.

This court has gone through the record and arguments put forth by the counsel of both the parties. On the point that on 15.02.2007, deceased

Vishwajeet died due to injuries sustained by him and his death was homicidal in nature, Dr. Prashant Kumar Jain (PW/12) deposed that on 15.02.2007,

he was posted as Senior Medical Officer in J.P. Hospital, Bhopal. On that day, at 9:35 PM Vijay (PW/3) brought Vishwajeet in dead state in the

hospital. In the examination, he found one incised wound size 10 cm x 4 cm x 4 cm on right axillary medial border of deceased Vishwajeet and gave

the report (Ex.P/16). He had also sent a letter for conducting postmortem of his dead body and Dr D.S.Badkur (PW/6) deposed that on 16/02/07 he

was posted as Joint Director of Medical Legal Institute, Bhopal. On that day at 3 PM he conducted postmortem of dead body of Vishwajeet and

found following external injuries on his body:-

(i) Stab wound size 9 x 4 cm, vertical, spindle shaped on anterior aspect of right chest wall in upper lateral part of pectoral region just medial to

shoulder joint both margins and angles were sharply cut and has a notch at lower 2 cm part of margins. The wound was tapering at upper and towards

medially underneath 1st and 2nd ribs and 1st and 2nd intercostal muscles were vertically cut, muscles ecchymosed. Track of the wounds was 10 cm

deep and passed through the pleura into the apical lobe of right lung which was cut in 8 x 4 cm vert. area, 8 track directed posteriorly downwards and

medially. About 1.5 liters of blood was filed in Right pleural cavity.

(ii) Abrasion 2.5x1 cm on left molar eminence, blood clotted.

(iii) Contusion abrasion 2x1 cm on right side of both lips near angle of mouth.

(iv) Abrasion 1x1 cm on right steroclavicutor joint.

(v) Abrasion 2 cm dia on spine of left scapula.

(vi) Abrasion 6 x 1 cm on spine of right scapula vertical.

(vii) Incised wound 0.5 x .1 cm skin deep on mid anterior aspect of left arm.

(viii) Incised wound 1x.5 cm on mid post aspect of left forearm, tapering downwards and laterally.

(ix) Multiple abrasions of 0.5 cm dia to 1x.1 on linear scattered at places on left arm post aspect. Posterior aspect of right arm, elbow and forearm and

back of chest. All superficial and fresh.

He further deposed that all these injuries were antemortem in nature. Vishwajeet died due to shock and hemorrhage as a result of stab injury in the

chest caused by hard, sharp and penetrating object and was homicidal in nature. Duration of death was within 24 hour since postmortem.

His statement is also corroborated by the postmortem report (Ex.P/8) given by him. Appellants did not give any significant challenge to the

testimony of these witnesses in their cross examination. There is no infirmity in their statements in this regard. From their statements it is proved that

on 15.02.2007, deceased Vishwajeet sustained injuries and died due to the injury sustained by him in his chest which was caused by hard, sharp and

penetrating object and his death was homicidal in nature.

On the point that whether appellants murdered Vishwajeet in furtherance of their common intention, Kheman Bai (PW/1) deposed that on

15.02.2007 at 9 PM when she was cooking food in her house, her son Abhijeet (PW/2) came and told her that appellants were assaulting his father.

On that she went to spot where she saw that appellant Suryabhan had caught hold of her husband and appellant Manoj was standing there armed with

knife shaped like scissor and was assaulting her husband by that scissor, when she tried to snatch that knife from him, appellant Suryabhan caught

hold of her hair and pushed her so she fell down. Thereafter, appellant Manoj inflicted blow on her husband’s chest by scissor, due to which, he

sustained injury in his chest. He also sustained injuries in his mouth, cheek and knee in the incident. After the incident, appellants fled away from the

spot. Thereafter, she took her husband Vishwajeet with the help of Vijay (PW/3) to J.P. Hospital by auto, where doctor declared him dead. In this

regard her statement is also corroborated by the F.I.R. (Dehati Nalasi) (Ex.P/1) which was also proved by G.S. Sengar (PW/7) and regarding incident

her statement is also corroborated by the statements of Abhijeet (PW/2) and Vijay (PW/3).

Abhijeet (PW/2) deposed that on the date of the incident at 9 PM, he saw appellants assaulting his father in the hut of his uncle Indrajeet by kicks

and fist. On that, he went to his house and informed his mother (Kheman Bai) who was cooking food, at that time, who rushed to spot along with him.

There, he saw appellant Suryabhan pushed his mother and she fell down and he caught hold his father's hand and appellant Manoj assaulted him by

scissor due to which his father Vishwajeet fell down. Thereafter appellants Suryabhan and Manoj ran away from the spot. His uncle Vijay (PW/3)

and his mother took his father to hospital. Vijay (PW/3) also deposed that on the date of incident, he was walking in front of his house. At that time, he

heard noise of quarrel which was coming from Indrajeet’s hut. On that, he went to that place, where he saw that appellants Suryabhan and

Manoj assaulting Vishwajeet. At that time, Sidharth also came there and both of them tried to stop them but they did not. Vishwajeet’s wife also

came there. Appellant Suryabhan caught hold Vishwajeet’s hands and appellant Manoj assaulted him by scissor in his chest. After the incident,

appellants ran away from the spot. He took Vishwajeet to J.P. Hospital with the help of his wife where doctor declared him dead.

On the point prosecution story is also supported by the circumstantial evidence collected by R.K.Sharma (PW/9) during investigation. He deposed

that on 16.02.2007, he arrested appellants Suryabhan and Manoj and prepared arrest memo (Ex.P/11 & Ex.P/12) and on interrogation appellant Manoj

gave information regarding concealment of scissor in his house. On that, he seized one scissor at the instance of appellant Manoj from his house and

prepared information memo (Ex.P/3) and seizure memo (Ex.P/4) and D.S. Badkur (PW/6) also deposed that on 16.3.2007 he examined that scissor

and gave the report to the effect that the injury no. 1, 6 and 7 found by him on the dead body of Vishwajit as mentioned by him in the autopsy report

(Ex.P/5) can be caused by that scissor.

Although Kheman Bai (PW/1) and Abhijeet (PW/2) are the close relatives of the deceased but only on that ground their statement cannot be

discarded. The Hon'ble Apex Court in the case of State of Andra Pradesh Vs S. Rayappa & Ors. reported in (2006) 4 SCC 516 observed:-

“By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that

he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness.

The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or

the other either because of animosity or some other reasons.The relative witness is not necessarily an interested witness. On the other hand, being a

close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate

and depose falsely against somebody and screen the real culprit to escape unpunishedâ€​.

Their statements are also corroborated from the statements of independent witness Vijay (PW/3) who is an eye witness of the incident. Although

appellants gave the suggestion to Kheman Bai (PW/1) in her cross examination that she had illicit relations with Vijay but she clearly denied from that

suggestion. Vijay also denied from that suggestion. Although Kheman Bai (PW/1) deposed in her cross-examination that she did not see the incident

but in this regard her statement will be read as a whole not in a piecemeal. This witness in his examination-in-chief clearly deposed that she saw the

incident and in her cross-examination she also denied from the suggestion given by the appellants’ counsel that she did not see the incident which

shows that due to not understanding the question correctly, the facts to this effect have come in his cross-examination. Although, in the FIR lodged by

this witness, it is mentioned that in the incident, appellant Manoj inflicted Vishwajeet by knife while police seized scissor from the possession of

appellant Manoj. But the incident occurred at night. It is possible that she could not properly see what weapon was used by appellant Manoj in the

incident. Dr. D.S. Badkur (PW/6) also stated that the injury sustained by deceased Vishwajeet in his chest could be caused from seized scissor.

Regarding incident, the statement of Kheman Bai (PW/1) also supported from the statement of Abhijeet (PW/2) and Vijay (PW/3). There is no

important contradiction and omission in their statements so there is no reason to disbelieve the statements of Kheman Bai (PW/1), Abhijeet (PW/2)

and Vijay (PW/3) in this regard.

Although appellants took the defence that in the incident quarrel had occurred between Vishwajeet and Kheman Bai (PW/1) and when they were

fighting with each other, Manoj went there and intervened on which Kheman Bai hit Manoj with stone and later Kheman Bai (PW/1) lodged the false

report against the present appellants. But the defence of appellants and the statements of appellants Manoj and Suryabhan and their witnesses Hemu

Bai (DW/1), Manohar (DW/2) and Madhukar Patil (DW/3)Â do not appear to be true.

In this regard statements of appellants Manoj and Suryabhan were contradictory. Manoj deposed that on the date of incident Vishwajeet and

Kheman Bai were quarreling with each other in front of his house and when he intervened, Kheman Bai hit him with a stone. While Suryabhan

deposed that on the date of incident Vishwajeet and Vijay were quarreling. When Manoj intervened Kheman Bai hit him by stone. Even they did not

give any suggestion to Kheman Bai in her cross examination that on the date of incident she and her husband Vishwajeet were quarreling with each

other in front of appellants’ house and when Manoj intervened she hit him with a stone. On the contrary appellants gave suggestion to Kheman

Bai in her cross-examination that on the date of incident she pelted stones on appellants’ hut due to which Manoj sustained injury. Even they did

not state how Vishwajeet sustained injuries.

Manohar (DW/2) clearly admitted in his cross-examination that he was not present on the spot at the time of incident and he did not see the

incident. He even admitted that on the date of incident quarrel took place between Vishwajeet and appellants Suryabhan and Manoj. Hemu Bai

(DW/1) wife of Surya Bhan stated in his cross examination that at the time of incident both Suryabhan and Manoj were present on the spot. While

Suryabhan and Manoj deposed that at the time of incident Suryabhan was not present on the spot. Madhukar Patil (DW/3) deposed that on the date of

incident Vishwajeet and Kheman Bai were quarreling with each other, Manoj went to intervene, thereafter, he did not know what happened and who

assaulted Vishwajeet. This shows that this witness also did not see that what happened in the incident. So on the basis of statement of defence

witnesses, it can not be assumed that Kheman Bai (PW/1) lodged false report against appellants. On the contrary from the statement of defence

witnesses, it appears that on the date of incident, a quarrel took place between Vishwajeet and appellants.

So there is no reason to disbelieve the statements of Kheman Bai (PW/1), Abhijeet (PW/2) and Vijay (PW/3) regarding incident. From their

statements, it is clearly proved that at the time of incident quarrel occurred between Vishwajeet and appellants in which appellants assaulted

Vishwajeet and appellant Suryabhan caught hold of Vishwajeet’s hands and appellant Manoj inflicted fatal blow on his chest by scissor and when

Kheman Bai (PW/1) tried to snatch that knife from Manoj, to rescue her husband Vishwajeet appellant Suryabhan caught hold of her hair and pushed

her due to which she fell down.

Learned counsel for the appellant also submitted that from the statement of Kheman Bai(PW/1) what only appears is that the appellant Manoj

assaulted only one fatal blow of scissor on Vishwajeet’s chest and from the statement of Kheman Bai (PW/1), it does not appear that the

appellant Manoj inflicted injury on Vishwajeet with an intention to kill him. So appellant’s act at the most only comes under the preview of Section

304 Part II of IPC. But this argument also has no force. Under Clause ""third"" of Section 300 IPC culpable homicide is murder, if both the following

conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a

bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there

was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to, cause death viz. that the injury found to

be present was the injury that was intended to be inflicted. Once these ingredients are proved, it is irrelevant whether there was a single blow struck

or multiple blows, as held by Apex court in Arun Raj V/s. Union of India and others reported in (2010) 6 SCC 457.

It is clear from the prosecution evidence as discussed above that at the time of incident, the appellant Manoj came on the spot armed with scissor

and assaulted Vishwajeet on his chest and other body parts and inflicted injury with such a force on Vishwajeet’s chest (which is vital part of the

body) with scissor, that his 1st and 2nd ribs and 1st and 2nd intercostal muscles were cut and 10 cm deep wounds was caused, his right lung was also

hurt. Therefore, it is clear from his act that the appellant Manoj with the knowledge that it is likely to cause death, inflicted injuries on

Vishwajeet’s chest with intent to kill him. So from the statement of Kheman Bai (PW/1) which is also supported by other evidence, it is clearly

proved that appellant Manoj assaulted Vishwajeet by scissor with intent to kill him and thus he committed murder of Vishwajeet and at that time

appellant Suryabhan caught hold of Vishwajeet’s hands and appellant Manoj inflicted fatal blow on his chest by scissor and when Kheman Bai

(PW/1) tried to snatch that scissor from Manoj to rescue her husband Vishwajeet, appellant Suryabhan caught hold her hair and pushed her so that

she fell down. These acts of appellant Suryabhan shows his common intention with appellant Manoj to murder Vishwajeet. So we are of the

considered opinion that the learned trial Court did not commit any mistake in finding the appellant Manoj guilty for murdering Vishwajeet for the

offence punishable under Section 302 of IPC and appellant Suryabhan for the offence punishable under Section 302/34 of IPC. Hence, the finding of

conviction and sentence of Trial Court is hereby upheld. Resultantly, appeal has no merits and the same is hereby dismissed. The period already

undergone by the appellants shall be set off from the period of substantive jail sentence.

Appellant Suryabhan is on bail. He is directed to surrender before the trial Court up to 15/03/2018 and the trial Court is directed to send him to jail

for serving the remaining part of jail sentence. If the appellant Suryabhan does not surrender as directed above, the trial Court shall take action

according to law for the arrest of appellant Suryabhan.