Meharab Khan And Another vs State Of Madhya Pradesh

Rohit Arya, J

This appeal by two accused under section 374(2) Cr.P.C., has been directed against the judgment of conviction and order of sentence dated

17/12/2009 passed in sessions trial No.147/2009 by II Additional Judge to the Court of VI Additional Sessions Judge (Fast Track Court) Mandsaur,

District Mandsaur, convicting each of the appellants under section 302 read with section 34 IPC and sentenced each of them to suffer life

imprisonment with fine of Rs.500/- and under section 449 read with section 34 IPC and sentenced each of them to suffer rigorous imprisonment for

five years with fine of Rs.500/- with default stipulation. Both the sentences shall run concurrently.

As per prosecution case, on 13/05/2008 Reshambai Gayari reached Police Station Sitamau and stated to the effect that she is resident of village

Laduna; out of three sons, one son namely; Kantilal for the last 7-8 years kept Mariyam Bee wife of Meharab Khan as concubine. However, after

Court marriage, he has changed the name of Mariyam Bee as Kaushalyabai. Prior to that, his marriage took place with Suganabai and begotten a

female child; namely, Binjal aged about 09 years residing with Kantilal. Binjal came to her house at about 02.30 pm and informed that two miscreants

armed with swords entered the house. On this, she rushed to the house of Kantilal where she found that the accused persons; Meharab Khan &

Aktar armed with sword are there and their clothes are soiled with blood. They fled away seeing her. She went inside the house whereupon she

noticed that Mariyam Bee alias Kaushalyabai was in an injured condition having received injuries on her neck and head and blood was oozing out as

well as lying dead. On her shriek, the other family members came there. Accordingly, Marg No.19/08 under section 174 Cr.P.C., was recorded by the

police. The dead body was sent for post mortem. Thereafter, the FIR was registered at crime No.130/08 at the Police Station against the accused

persons for the offence punishable under sections 302, 456 and 34 IPC.

During investigation, B.L.Awasiya, Investigating Officer (P.W.10) has prepared the Naksha Panchayatnama (exhibit P/9), he has also seized various

articles, viz., earth soaked with blood, simple earth etc., vide exhibit P/6. Further, recorded the statements of witnesses, Reshambai Gayari (P.W.5),

Binjal (P.W.4) on the same date. The dead body was sent for post mortem vide exhibit P/14. The Investigating Officer arrested the accused/appellant,

Meharab Khan (exhibit P/4) and prepared the arrest memo (exhibit P/4). On the basis of his statement, recovered the clothes containing blood stains

(exhibit P/7) and also seized the sword from the place where he kept it and prepared the memo vide exhibit P/8. During further investigation on

15/05/2008, he has recorded the statements of other witnesses. He has arrested the other co-accused, Mohd. Aktar on 31/07/2008 and prepared the

memorandum vide exhibit P/1. Based on his disclosure statement, the sword used in the commission of crime has been seized vide seizure memo

exhibit P/3. All the seized articles were sent for FSL examination (exhibit P/15) and also for identification of the human blood, the seized article was

sent to the Laboratory vide exhibit P/16. To prepare the spot map (nazari naksha) through the Patwari, information was sent to the concerned

Tehsildar (exhibit P/17). The FSL reports were received vide Annexures P/19 and P/20. On completion of the investigation, a charge sheet was filed

against the accused/appellants.

Dr. S.G.Suryavanshi (P.W.11) conducted post mortem (exhibit P/14) has found (i) rigor mortise (instantaneous rigor) present; (ii) Incised 6†x 2

1/2'' x 2 1/2'' on right side of heard transversely at deep to cut brain matter at right ear side; (ii) Incised 3'' x 1/2'' x 1/4'' com on right parental area;

(iii) Incised 4'' x 21/2'' x 21/2'' on left temporarygomatic area with eye bulb ruptured; (iv) Incised 4'' x 1 cm x 3'' on left maxillary area to the bridge of

nose, in middle of nose level; (v) Incised 4'' x 11/2'' x 3 on left mandible (jaw); (vi) Incised 5'' x 3'' x 3'' on right shoulder joint anteriorly (vii) Incised

21/2'' x 21/2'' x 21/2'' on the left claw in B/n fold of index middle finger (viii) Incised 6' x 3' x 3 on right scapula and all of the injuries are antemortem

and fatal to life of the above said person. It is opined that death was caused due to multiple deep incised injuries all over the head, face, jaw and right

shoulder joint region; Homicidal injuries. As such, deceased had suffered death within 06 hours of the post mortem.

The prosecution has examined as many as 11 witnesses and placed Exhibits P/1 to P/20, the documents on record.

The trial Judge on the basis of the material placed on record framed charge punishable under Section 449 read with section 34 IPC as well as 302

read with section 34 IPC against the accused persons. The accused denied the charge and claimed to be tried. The defence of the accused is of false

implication and the same defence they set forth in his statement recorded under Section 313 of the Code of Criminal Procedure, 1973.

The Trial Judge while carefully examining the evidence of eye-witness Binjal (P.W.4) aged 09 years found that there is consistency in her

statement all along as she has vividly described the incident. Further, the evidence of the complainant Reshambai (P.W.5) and the investigating officer,

B.L.Awasiya (P.W.10) who has proved his signature from the portion B to B on the panchnama lash and the seizure of articles supports the version

of the eye-witness. On the basis of overwhelming evidence of occurrence of the incident and involvement of the accused/appellants, various

memorandums including seizure memos and the FSL reports [exhibits P/1, P.3, P/4, P/6, P/7, P/8, P/9, P/10, P/12, P/13, P/15, P/16, P/17 etc.], post

mortem report (exhibit P/14) and evidence of Dr. S.G.Suryavanshi (P.W.11) as well as the FSL reports (exhibits P/19 & 20), the trial Court has

concluded that the accused/appellants have caused fatal injuries resulting into death of the deceased. Accordingly, held that charge under section 449

read with section 34 IPC as well as section 302 read with section 34 IPC has been proved against the accused/appellants as a result of which they

have been convicted and passed the sentence as mentioned hereinabove.

This appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the Trial Court.

Learned counsel for the appellant while criticizing the impugned judgment contends that there is mis-appreciation of the evidence on record and

committed grave illegality having relied upon the testimony of the alleged evidence Binlaj (P.W.4) and the complainant Reshambai (P.W.5) and the

autopsy surgeon, Dr. S.G.Suryavanshi (P.W.11) as well as other witnesses. Even otherwise, allegedly seized blood stained clothes and swords

containing human blood, there was no evidence that the appellants were wearing the said clothes at the time of the incident. He further contends that

although the serology report indicates that it is stained with human blood but blood grouping is not there. As such no inference could be drawn against

the appellants. The FIR was not forwarded to the Judicial Magistrate on time. Moreso, no motive has been attributed for commission of the offence

by the the appellants to murder the deceased. He placed reliance on the judgment of the Hon'ble Supreme Court in the case of Kansa Behera Vs.

State of Orissa (1987) 3 SCC 480 and a division Bench judgment in the case of Data Ram Vs. State of of M.P., Cr. Appeal No.609 of 2000 decided

on 16/08/2007 at Gwalior Bench reported in LAWS(MPH) 2007 8 51 to bolster his submission. Under such circumstances, the trial Court erred in

convicting the appellants, therefore, the appeal be allowed and the appellants be acquitted from the charges.

An alternate submission has also been put-forth by the learned counsel for the appellant that if this Court comes to the conclusion that the appellants

are involved in commission of the crime, the sentence may be reduced to the period already undergone by them.

Per contra, learned Public Prosecutor has supported the impugned judgment and finding arrived at by the trial Court and submitted that the

conviction in question is well merited.

We have heard learned counsel for the parties.

The eye-witness Binjal (P.W.4), aged 09 years and a student has in unequivocal terms in paragraph 1 of her statement has identified both the

accused who had entered her house armed with swords. On a pointed queries by the Court, she has specifically stated that she knew them by face

and does not know their names. In paragraph 5, she has categorically stated that earlier also she came to the Court for recording her statement. On

19/03/2009, she came to the Court alongwith her grand-mother, etc., at 11.00 am and also identified the accused persons present in the Court tied with

handcuffs. She withstood in her cross-examination.

The statement of the complainant Reshambai (P.W.5) supports the version of the eye-witness, Binjal (P.W.4). She states that on the date of the

incident about 2.30 pm when she was at her house, her grand-daughter P.W.4 had come to the house and informed that two miscreants entered her

house. On such information, she went to the house of Kantilal and saw that the accused persons were coming out of his son's house. In paragraph 3,

she states the accused, Meharab Khan after commission of the crime had come to the police station. She further states in paragraph 5 that Kantilal

begotten two children, with the first wife, namely; Binjal (P.W.4) and a son Bablu. In paragraph 10, she further states that after marrying the second

wife by Kantilal, Sugnabai (his earlier wife) is residing in her house but apart from Kantilal.and there was no dissolution of marriage. She withstood in

her cross-examination.

In the obtaining facts and circumstances as there is overwhelming testimony of the eye-witness, a child of 09 years Binjal (P.W.4) who withstood

in her cross-examination and the evidence of other witnesses as well as the medical evidence referred to above and further, the complacency of the

accused/appellants conclusively proved by two FSL reports (exhibits P/19 and P/20) whereunder the human blood was matched on the swords seized

from both the accused/appellants. Under such circumstances, the Trial Court did not commit any error in holding that the deceased had died due to

grave and multiple injuries inflicted by the appellants with swords used by them for commission of the crime.

The argument advanced by the learned counsel for the appellants that no motive has been attributed to the appellant for causing the grave injuries

and ultimate death of the deceased appears to be not sustainable. The alleged witness, Binjal (P.W.4) being a child witness of aged 09 years cannot

be relied upon is of no consequence for the detailed reasonings mentioned above. Appellants have also been duly identified by the eye-witness, Binjal

(P.W.4). The said fact has been established from the evidence of the complainant, Reshambai (P.W.5) and other witnesses. The argument so

canvassed as regards the delay caused in sending the intimation to the Court of Judicial Magistrate and on the alleged seized weapons do not contain

human blood has been considered in detail by the trial Court and rejected the same from paragraph 30 to 34 upon critical evaluation of the evidence on

record. We do not find any reason to deviate from the view taken by the trial Court. The homicidal death of the deceased; a woman of 40 years as

per post mortem report having received as many as 08 injuries with a lethal weapon; an unnatural conduct of the appellants completes the chain of

circumstances and no interference is warranted in the impugned judgment. Hence, the argument is rejected, accordingly.

We have also gone through the reasonings assigned by the Trial Court convicting the appellants under section 449 read with section 34 IPC as

well as 302 read with section 34 IPC against the accused persons and we do not find any infirmity in it. The judgment is based on correct appreciation

of the evidence based on record and further we do not want to deviate ourselves from the reasonings assigned by the Trial Court. Hence, we extend

our stamp of approval of the reasonings, findings, conviction and sentence recorded and awarded by the Trial Court. The judgments relied upon are

distinguishable on facts and are of no assistance to the appellants.

Ex consequentia, this appeal is found to be bereft of any substance and the same is hereby dismissed.