Nandu And Another vs Nandu And Another

Ashok Kumar Joshi, J.

By this appeal filed under Section 374 of the Cr.P.C., appellants have assailed their conviction under Section 302 read with Section 34 of IPC and

sentence of life imprisonment with a fine of Rs.50,000/- with default stipulation recorded by Second Additional Sessions Judge, Ashoknagar District

Guna vide judgment dated 15.04.2005 passed in ST No. 62/2004.

2- Undisputedly, both appellants Nandu and Veeru are real brothers.

3- Prosecution's case, in brief, is that on the date of incident, i.e., 18.11.2003, complainant Brijesh Kumar (PW-1) resident of Gram Sijawat lodged FIR

(Ex.P-1) at 23:20 hours at Police Station Ashok Nagar to the effect that Ramleela was being played in their village for last three days. On the date of

incident, complainant Brijesh Kumar, his brother Santosh (deceased), their father Ramnarayan (PW-2) and his mother were watching Ramleela in the

night on the date of incident. At about 10:00 pm, both the appellants Veeru and Nandu, resident of same village, came on scene of occurrence and due

to enmity, appellant Veeru caught hold hands of complainant's brother Santosh and thereafter appellant No.2-Nandu inflicted injuries by his knife to

Santosh on left side of his neck and on his abdomen and blood was oozing out from the injuries. The incident was witnessed by Shyam Sharma, Veeru

Sharma (mama) and Jai Prakash Sharma and so many other persons of the village, who were watching Ramleela. After the incident, injured Santosh

was being taken to Police Station Ashok Nagar by complainant by tractor and trolley, but before reaching to the Police Station, on the way injured

Santosh died. Two days prior of the incident, i.e., on 16.11.2003 a cricket match was played in the village, wherein a quarrel occurred between

complainant's brother Santosh and both the appellants and due to this enmity, his brother was killed by the appellants. FIR (Ex. P-1) was scribed by

Sub-inspector RKS Chouhan (PW-7) and marg report (Ex. P-5) was also separately registered at the Police Station.

4- On 19.11.2003, at 9:00 AM in presence of panch witnesses, after inspection of dead body inquest memo (Ex.P-7) was prepared by RKS Chauhan

(PW-7). Thereafter, the dead body of Santosh, was sent for postmortem with application. On 19.11.2003, at Ashok Nagar hospital, Dr. Vivek Singh

(PW-3) conducted postmortem of dead body of Santosh and recorded the postmortem report (Ex. P-6). On 19.11.2003, at 10:20 AM, RKS Chauhan

(PW-7) after inspecting the scene of occurrence, prepared a spot map (Ex.P-3) in presence of complainant-Brijesh and on the same day at 10:40 AM,

blood stained soil and separately plain soil were seized vide seizure memo (Ex. P-4).

5- During investigation, both appellants Veeru and Nandu were arrested on 08.12.2003 vide separate arrest memos Ex. P-8 and Ex.P-9. On

08.12.2003, on the basis of appellant â€" Nandu's disclosure (memorandum Ex.P-10), a knife was seized vide seizure memo (Ex.P-11) by

Investigating Officer RKS Chauhan (PW-7) in presence of panch witnesses. After completing the formalities of investigation, charge-sheet was filed

before the JMFC, Ashok Nagar, who committed the arisen criminal case to the Sessions Judge, Guna, who transferred arisen session trial to the

above-mentioned trial Court.

6- Each appellant denied the charge framed under Section 302/34 of IPC by trial Court against him and claimed trial. Before the trial Court, seven

prosecution witnesses were examined. It was the defence of both appellants that they have been falsely implicated and it was the specific defence of

appellant No.1-Nandu that at the time of incident, he was at Ashok Nagar in his house and it was his specific defence of appellant No.2-Veeru that on

the date of incident, he had gone to village Vahana of Tahsil Mungawali, at the house of Sher Singh Dangi for receiving payment of his labour work,

but no defence witness was examined before the trial Court by appellants relating to above- mentioned defence regarding their plea of alibi. The trial

Court after hearing, placing reliance on the evidence of produced eyewitnesses of prosecution, convicted and sentenced each appellant as aforesaid.

7- Learned counsel for the appellants vehemently contended that even the trial Court did not believe on eyewitness account given by Kamlesh Kumar

(PW-4) as he was resident of Ashok Nagar and other three examined eyewitnesses complainant Brijesh (PW-1), brother Vishnu Dubey (PW-6) and

their father Ramnarayan (PW-2) are close relatives of deceased and belong to one family and allegedly incident occurred when Ramleela was being

played and was being watched by so many persons at village Sijawat, no independent eyewitness was produced by the prosecution. It is further

argued that there are material contradictions and inconsistencies in the evidence of above-mentioned interested eyewitnesses and trial Court erred in

believing on their evidence. It is also argued that allegedly a knife was recovered during investigation from one appellant, but allegedly seized knife

was not sent to FSL for examination and no report of FSL was produced or proved; hence, alleged circumstantial evidence regarding recovery of

knife on the basis of alleged disclosure of appellant Nandu is totally immaterial. Hence, it is prayed that the appeal filed on behalf of the appellants be

allowed and each appellant be acquitted from the charged offence.

8- Per contra, appearing Public Prosecutor on behalf of respondent/State contends that the trial Court has properly and legally analyzed and

appreciated the evidence available on record and evidence of complainant Brijesh (PW-1) is substantially corroborated by his prompt FIR (Ex.P-1)

and medical evidence and by evidence of other eye-witnesses, therefore, dismissal of the appeal is prayed for.

9- It is clear from the evidence of Dr. Vivek Singh (PW-3) and his signed report (Ex. P-6) that on 19.11.2003, at 10:15 AM at Ashok Nagar hospital,

on starting of postmortem of the deceased Santosh aged about 18 years old, he found following antemortem external injuries :-

Stab wound over sternum lower part size 4x1.5cm x deep upto thoracic cavity, beneath which sternum bone was having cut and the diaphragm on

the left side was having cut and lower part of liver on left side and upper part of abdomen were having cuts and from this injury food taken by

deceased was coming out and the size of cut on the liver was 2.5cm X 0.5cm X 0.5cm.

A stab wound on anterior side of left shoulder, size 3cmX1cmX4cm obliquely placed going posteriorly and downwards and clotted blood was

present over wound.

Incised wound over left side of neck, extending from left ear to upper 1/3 of neck, size 5cmX0.2cmX 0.5cm.

Stab wound over chest on inter-coastal space piercing pleural cavity, right lung, lower part and right part of diaphragm, capsule of liver and liver

right were having cuts and size of cut was 3cmX1.5cmX 1/4cm.

Incised wound on lateral side of lower 1/3 of right upper arm, size 3cmX1cmX1cm.

An incised wound of size 2.5cmX1cmX1cm over left arm's lower 1/3 medial aspect.

10- It is clear from the evidence of Dr. Vivek Singh (PW-3) that despite above-mentioned external and internal injuries on dissection of the dead body,

it was found that diaphragm and pleural cavity was punctured and thoracic cavity was filled with blood and right pleura (upper membrane of lung) was

punctured and lower part of right lung was punctured and membrane of intestine was ruptured and filled with blood and upper portion of stomach was

punctured whose size 1 ½ cmx 0.5 cm and semi digested food was coming out from these injuries. Liver was punctured at two places and the

muscle beneath each wound was having cut and lower 1/3 part of sternum was punctured and in his opinion, all the antemortem injuries were caused

to the deceased by pointed and sharp edged hard weapon, whose one side was sharp edged and other side was blunt and in his opinion, the reason of

death was shock caused by extensive bleeding from the injuries and due to injuries caused on vital organs liver and lungs and deceased died within 12

to 24 hours from starting of his postmortem and the mode of death was homicidal and clothes found on the dead body were sealed by him in a packet

and sent to relating police station. The homicidal death of the deceased Santosh is not seriously challenged by defence. Hence, it was proved that

deceased Santosh met with a homicidal death on 18.11.2003.

11-Â Complainant-Brijesh (PW-1), his younger brother child witness aged about 12 years Vishnu Dubey (PW-6), their father Ramnarayan (PW-2)

deposed before the trial Court that at the time of incident, they were watching Ramlila which was being played on dais in the campus of Ramjanki

temple situated in their village Sijawat. Brijesh deposed that during Ramleela at 10:00 PM, both appellants came on scene of occurrence and appellant

No.2-Veeru caught hold hands of his brother Santosh and, thereafter, appellant No.1- Nandu gave blows of his knife over Santosh's left side of neck,

below the chest, abdomen and head of Santosh and, thereafter, Santosh fell down (Para-2 & 12). Brijesh (PW-1) deposed in his cross-examination

(Para 10) that at the time of watching Ramlila, Santosh was seated ahead from him and during Ramlila on dais there was lighting of tube-lights and

bulbs.

12- Complainant's father Ramnarayan (PW-2) and complainant's younger brother, child witness Vishnu Dubey (PW-6) have substantially

corroborated the evidence given by complainant. Complainant's evidence is also substantially corroborated by medical evidence and his prompt FIR

(Ex. P-1), which was lodged within 1 hour and 20 minutes of the incident and FIR is also proved by its inscriber RKS Chauhan (PW-7).

13- Another witness Kamlesh (PW-4) also deposed before the trial Court as eyewitness that deceased Santosh was son of his real uncle and he was

also watching Ramlila and he was having ancestral house at Ashok Nagar and was also having a house and agricultural land at village Sijawat and he

was residing at both places Ashok Nagar and village Sijawat, but in prompt FIR (Ex.P-1) Kamlesh Kumar's name is not mentioned and similarly

Vishnu Dubey (PW-6)'s name is also not mentioned, but as Vishnu's father, mother and his both elder brothers complainant Brijesh and Santosh were

watching Ramlila, hence, the presence of child witness Vishnu Dubey could not be doubted. Kamlesh Kumar (PW-4) is a panch witness of inquest

memo (Ex.P-7) wherein his address is recorded as Moti Mohalla, Ashok Nagar, but in other papers, such as arrest memos (Ex.P-8 and P-9), appellant

Nandu's memorandum recorded under Section 27 of the Evidence Act as Ex. P-10 and seizure memo as Ex.P-11, Kamlesh's address is recorded by

investigating officer as resident of village Sijawat, whereas in inquest memo (Ex. P-7) prepared on 19.11.2003, his address was mentioned as Moti

Mohalla Ashok Nagar, therefore, trial Court observed in Para-13 of its judgment that the presence of Kamlesh Kumar (PW-4) at the scene of

occurrence appears to be doubtful.

14- Much emphasis has been given by the learned counsel for the appellants on some contradictions came in cross-examination of eyewitnesses on

the points such as from which direction, both appellants came at scene of occurrence and whether till reaching nearer to deceased Santosh, the knife

was hidden or whether knife was visible in the hand of Nandu and whether hands of the Santosh were caught hold by Veeru from front side or from

back side, but it is clear that all these eye-witnesses were watching Ramlila played on dais and naturally their concentration was towards Ramlila

being played on dais and these eyewitnesses deposed that after hearing the noise, they watched at deceased and appellants. Hence, alleged

contradictions do not appear much important and such

contradiction appears to be natural and inconsequential. After incident, seriously injured Santosh was tried to be taken to relating Police Station by

tractor and trolley and prompt FIR was lodged by deceased's brother at concerned Police Station. Hence, the presence of complainant and his family

members could not be doubted at the scene of occurrence.

15- It is also argued by the appearing counsel for the appellants that the alleged motive of the murder of Santosh by appellants does not appear to be

of such nature that murder of Santosh would be committed by the appellants. Complainant and their family members have deposed that few days prior

to the incident, a quarrel had occurred between both appellants and Santosh during a cricket match and only due to this enmity, Santosh was murdered

by appellants. Complainant Brijesh admitted in his cross-examination that he and his brother Santosh (deceased) were being tried in a criminal case for

giving beating to Badri and his father. Complainant has denied in his cross-examination, suggestion given by defence counsel that Santosh was a

hardened criminal having so many enemies, hence, he was murdered by unknown persons. It is well established that possibility of false implication of

accused by close relatives of the deceased remains minimum. Regarding motive, it is well settled that motive comparatively has importance only in

murder cases which are totally based on circumstantial evidence but, where eyewitnesses to any crime are available, then the sufficiency of alleged

motive is not having much significance.

16- Much emphasis has been given on the fact that in spot map (Ex.P-3) prepared by Investigating Officer RKS Chauhan (PW-7), it is not mentioned

that blood was lying on the scene of occurrence. It is true that in spot map, specifically the place of blood on scene of occurrence is not mentioned but

in spot map, spot of murder of Santosh is clearly shown and according to seizure memo (Ex.P-4) just after 20 minutes of preparing the spot map

(Ex.P-3), blood stained soil and separate plain soil was seized by the same Investigating Officer RKS Chauhan (PW-7) from the scene of occurrence.

In such facts and circumstances, mere not mentioning of place of lying blood in the spot map, could not make the prosecution case doubtful.

The clothes found on the dead body were sealed by Dr. Vivek Singh (PW-3) at the time of conducting autopsy and sent to concerned Police Station

which were seized vide seizure memo (Ex.P-12) by above-mentioned Investigating Officer. Similarly, regarding seizure of knife on the basis of prior

disclosure statement of appellant Nandu, there is evidence on record of Investigating Officer RKS Chauhan (PW-7) and on this point, his evidence is

corroborated by panch witnesses Dinesh Kumar Sharma (PW-5) and Kamlesh Kumar (PW-4).

17- But it appears that with the charge-sheet, no any paper was produced by prosecution to indicate that allegedly seized knife or other materials

including blood stained soil and clothes of the deceased were sent to FSL For examination, hence, relating circumstantial evidence regarding seizure

these articles appear to be result-less.

18-Â In the light of the judgment in the cases of Krishnegowda vs. State of Karnataka (AIR 2017 SC 1657), Sudha Renukaiah vs. State of A.P.

(AIR 2017 SC 2124) and State of Punjab Vs. Gurmit Singh and another (AIR 1996 SC 1393), is clear that only due to negligence and carelessness of

Investigating Officer, the evidence of complainant or other eyewitnesses could not be disbelieved.

19- We are of the considered opinion that even if the evidence of Kamlesh Kumar (PW-4) is not considered, then the evidence of complainant Brijesh

(PW-1), his father Ramnarayan (PW-2) and child witness Vishnu Dubey (PW-6) appear to be trustworthy and believable and trial Court did not

commit any error in placing reliance on it.

20- Alternatively, it has been argued that appellant No.2 Veeru has only caught hold the hands of the deceased Santosh and conviction of another

appellant-Nandu could be altered under Section 304 of IPC. It is clear that by catching hold the hands of Santosh, appellant-Veeru made the escape or

flying away of the deceased impossible and as deceased's hands were caught hold by Veeru, another appellant-Nandu remained successful in

inflicting in total 6 deep injuries to the deceased with above-mentioned internal damage. At the time of incident, Santosh was watching Ramlila with so

many other viewers and he was having no weapon at that time. There is no such fact or circumstance is appearing in this case which could drag this

case into the category of any exceptions provided under Section 300 of IPC. Thereafter, alternative arguments is having no merit.

21-Â Regarding specific plea of alibi raised by each appellant during his examination conducted by trial Court under Section 313 of Cr.P.C, it is

significant to mention here that no defence witness was examined by any of the appellants before the trial Court to substantiate the above-mentioned

plea of alibi raised by both the appellants. Similarly, it would be significant to mention here that no suggestion was given to any of the eyewitness

produced by prosecution and Investigating Officer regarding presence of appellants at the time of incident at other places. Hence, it is clear that the

above-mentioned defence was totally afterthought and unbelivable.

22- It appears that in the FIR, names of three other witnesses Shyam Sharma, Veeru Sharma (mama), Jai Prakash Sharma, were specifically

mentioned, but none of them was examined before the trial Court. In this reference, it would be significant to mention here that according to order

dated 25.05.2004 of the trial Court on that day above-mentioned witness Veeru Sharma (mama) was present before the trial Court, but the Additional

Public Prosecutor intimated the Court on that day Veeru Sharma (mama) had turned hostile. Hence, prosecution was not desirous to examine him;

therefore, he was given up.

23- In criminal cases, the turning of alleged independent witnesses or even the turning of injured or complainant hostile is not an abnormal phenomena,

hence, it could not be inferred that prosecution has deliberately not examined alleged independent eyewitnesses.

24- The appeal filed by the appellants is devoid of any substance. Consequently, the appeal filed by the appellants against the above-mentioned

conviction and sentence is dismissed and each appellant's conviction and sentence as recorded by the trial Court is affirmed. Appellant No.1-Nandu is

suffering his jail sentence. He be intimated with the result of this appeal through concerned Jail Superintendent.

25- Appellant No.2-Veeru was released on bail after suspension of his jail sentence in compliance to this Court's order dated 25.01.2018. Appellant

No.2-Veeru is directed to surrender immediately before the trial Court to undergo his remaining sentence. If appellant No.2-Veeru does not surrender

before the trial Court, necessary steps shall be taken by the trial Court in this regard. The order of trial Court regarding disposal of property relating

case is also affirmed. With the copy the judgment, record of the trial Court be immediately sent back.