Nandu @ Nandlal S/o Prabhu vs State of Madhya Pradesh

This appeal has been filed by the accused-appellant being

aggrieved by the judgment dated 7.1.1995 passed by

Additional Sessions Judge, Katni in Session Trial No.548/93,

whereby the appellant has been convicted for offences

punishable under Sections 302 / 34 and 201 of the Indian

Penal Code and has been sentenced to undergo RI for life

and RI for 3 years respectively.

Brief facts of the prosecution case are that the

appellant was serving with deceased Baba Govind Shah at

Gurudwara Camp, Madhavnagar, Katni. He was frustrated

because Baba Govind Shah (since deceased) was holding

the important post in Gurudwara, even though he was junior

to the appellant. It was alleged that the deceased was

habitually dominated the appellant and his younger brother

Guddu (juvenile). On 24.11.1992 at about 6.30 PM Baba

Govind Shah was killed by appellant and his younger

brother Guddu by inflicting fatal blows by sharp cutting

weapons on the vital part of the body of Baba Govind

Shah. After killing him, the appellant burnt his body and

left the spot. Kumar Das reported the incident to the Police

Station, Tikuri District Katni. Hence, FIR was lodged

against the appellant under Section 302 of IPC. After

completion of investigation, a charge sheet was filed before

the concerned Court. The case was committed to the trial

Court.

The learned trial Court held the appellant guilty for

committing murder of Baba Govind Shah with the help of

his younger brother Guddu (juvenile) and convicted him

under Sections 302 and 201 of IPC and sentenced him as

mentioned above.

The appellant challenged the findings of the learned

trial Court on the grounds that the learned trial Court has

wrongly held him guilty for the aforesaid offences. There

is no direct evidence available against him. Merely

recovery of saw (aari) is not sufficient to connect the

appellant with the alleged offence. He has no motive to

commit the said crime. He has been falsely implicated by

some influential persons of the community, hence he prayed

to set aside the impugned judgment and acquitted him from

the charges levelled against him.

Heard the arguments of learned counsel for the

appellant at length. Perused the record.

Learned GA opposed the above contentions.

It is not in dispute that appellant and his younger

brother Guddu were serving and residing with the deceased

Baba Govind Shah at Gurudwara Madhavnagar, Sindhi

Camp, Katni. Kumar Das (PW1), Thouram (PW6), Vasudeo

(PW8) and other witnesses deposed that the appellant was

senior to deceased Baba Govind Shah, he was annoyed

with Baba Govind Shah. Because after ignoring him, Baba

Govind Shah got higher position (Gaddi) whereas appellant

was entitled for the said Gaddi.

It is on record that Dhannu @ Narendra (PW7) was

also serving at Gurudwara. On the date of incident at about

2.00 pm he was present at the Gurudwara with the appellant

and his brother Guddu. The deceased was also present

there. At about 3.00 pm Guddu (brother of appellant)

brought vegetable for the deceased. Then he was

continuously knocking the door of the deceased''s room.

Deceased came out from his room and gave 2-3 slaps to

him. Thereafter Dhannu @ Narendra went to his house.

According to him, the main entrance was locked by the

appellant. At about 5.00 to 5.30 pm Antul Prakash came to

his house and informed him that the room of the Govind

Baba(deceased) has burnt.

Thouram (PW6) was also serving in the aforesaid

Gurudwara. He has stated that on the date of incident in

evening at about 4.45 to 5.00 PM the appellant Manoj came

to his house. He wanted to talk with him in alone. The

appellant informed him that the deceased used to beat his

brother Guddu and abused him, therefore, they wanted to

leave the Gurudwara. He also told to Thouram that the Baba

would commit suicide, hence Thouram convinced the

appellant and after sometime the appellant left the house of

Thouram. Thereafter, Thouram heard that Baba Govind

Shah has died.

Sudama Prasad (PW12) has deposed that he only saw

the fire burning and at that time door of Baba Govind Das''s

room was closed. At about 7.00 pm police came to the spot.

At that time it was found that the neck of the deceased was

cut by a sharp weapon and he sustained head injury. In

cross-examination Sudama Prasad (PW12) admitted that he

heard about the incident, which established that on the date

of occurrence the appellant has expressing his annoyance to

Thouram (PW6). On the same day Baba Govind Shah was

killed and ablazed in his room. This fact has not been

challenged by the learned counsel for the appellant in the

cross-examination of the above witnesses.

Vishandas (PW13) is an important witness who was

present on the Thouram''s house. He corroborated the

testimony of Thouram (PW6), which established the

presence of the appellant at the house of Thouram at about

4.30 to 4.45 pm. Thereafter he heard about the incident. In

Para 8 Kumar Das (PW1) also stated that at about 4.40 pm

the appellant came to his house and informed him that he

and his brother was severely beaten by Baba Govind

Shah/deceased, therefore, they wanted to leave the

Gurudwara. He also informed to Kumar Das that Babaji

said to the appellant that he wanted to commit suicide and

there would be a possibility that Baba has committed

suicide. The conduct of the appellant just before the

incident and after the incident is very relevant under under

Sections 6 and 8 of Evidence Act. It establishes the motive

of the appellant to commit crime with the deceased.

Lalchand (PW2) deposed that on the date of incident in the

afternoon, the deceased Baba Govind Shah also expressed

his dissatisfaction for the appellant and his brother Guddu.

On the same day he knew about the murder of deceased. He

also confirmed the presence of the appellant and his brother

Guddu at Gurudwara with Baba Govind Shah with regard

to theory of ''last seen together''.

Kumar Das (PW1) was residing near Gurudwara. He

has stated that on the date of incident at about 5.30 pm his

son Antul Prakash came to him and informed that

something happened with Babaji (deceased) and smoke

was coming out from the room of Babaji. Then Kumar Das

went to the spot and opened the door and he saw that body

of Baba Govind Shah was burning and he died. Thereafter

he informed the Police Station, Tikuri District Katni and

FIR was lodged by him. In the FIR, he only informed the

sudden death of Baba Govind Shah.

The police has investigated the matter and interrogated

the appellant. After two days of the incident, the appellant

gave memorandum to the police about weapon (aari). As

per his memorandum, the police recovered aari ( Article-A )

as Ex.P3 shown in seizure memo. Similarly the

memorandum given by Guddu (Juvenile) Police recovered a

knife as seizure memo (Ex.P5) article-B.

Jhammatmal (PW5) and Kumar Das (PW1)

corroborated the testimony of K.S. Shekhawat (PW15)

Investigating Officer with regard to memorandum of

appellant and seizure ExP3, ExP4, ExP9. From the

corroboration of evidence of aforesaid witnesses, the

statement of Investigating Officer, K.S. Sekhawat (PW15)

is found trustworthy. It establishes that the aforesaid aari

was used by the appellant for committing murder of the

deceased. As per FSL report Ex.P21, which came after

chemical examination, shows that blood stains were found

on seized aari and knife

K.S. Sakhawat (PW15) explained the situation of the

room of the deceased. On the date of incident, he found

some burnt currency on the bed of the deceased and half

burnt match box and clothes. He found a container

containing 2 litre Petrol. The aforesaid circumstances and

seizure of aari and knife also establishes the involvement

of the appellant in the crime.

The appellant took defence that he is innocent. The

trustees of Gurudwara had taken huge amount from the

deceased, thus with the help of police those trustees have

falsely implicated him. In this regard Danavmal (DW1),

Sudama (DW2) and Madhavdas (DW3) were examined by

the appellant. The testimony of the aforesaid witnesses

indicates that the deceased was having bad habit, hence his

placement on the Gaddy of Gurudwara not accepted by

some persons. The deceased was killed by someone else.

The aforesaid defence version is not found reliable. It is not

sufficient to rebut, the version of the prosecution witnesses

against the appellant. At that time public was demanding

CBI prob or other enquiry is not relevant with regard to

challenge the testimony of prosecution witnesses.

The appellant not cross-examined the prosecution

witnesses [Thouram (PW6) and Dhannu @ Narendra

(PW7)] on the point that just before the incident, the

appellant did not go to the house of Thouram and Thakur

Das, to inform them about the rude behaviour of the

deceased. Therefore, the testimony of the aforesaid

witnesses is found unshakened. The appellant has not

offered any explanation about the aforesaid conversation

with Thouram (PW6) and Kumar Das (PW1). The appellant

informed them that deceased Baba Govind Shah would

commit suicide. These facts are also relevant under Section

6 and 8 of the Indian Evidence Act to establish the conduct

and behaviour of the appellant before the incident, who

planned to escape himself after making a story and scene as

Govindshah himself committed suicide.

Similarly, the appellant failed to offer any reasonable

explanation with regard to seizure of the incriminating

article Aari. As per the FSL Report, blood stain was found

on Aari and another weapon blood stained knife which was

also seized on the memorandum of the brother of the

appellant.

Incriminating article Aari which was seized with blood

stain completes the chain of circumstances against the

appellant. In the case of Mukesh Vs. NCT Delhi 2017

Cr.L.J. 4366 the Hon''ble Supreme Court has held as

under :-

" Legislature while incorporating Section 27, as exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process. Recovery made under Section 27 of the Evidence Act not only acts as the foundation stone for proceeding with an investigation, but also completes the chain of circumstances. Once recovery is proved by the prosecution, burden of proof on defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries, especially when the recovery is corroborated by direct as well as circumstantial evidence, especially when Investigating Officer assures that failure in examining independent witness while making the recoveries was not a deliberate or mala fide, rather it was on account of exceptional circumstances attending the investigation process."

Thus, in the light of the above principle, we come to the

conclusion that appellant caused death of Baba Govind Shah by

sharp cutting object with the help of his younger brother. After

committing murder of Baba Govind Shah, his body was set to

fire to escape from the criminal liability. Dr. B.M. Upadhyay

(PW4) conducted autopsy on 25.11.1992 at 9.00 am and found

swelling over the neck and superficial burns over both the legs,

thighs, perineum, chest, forearms, head, face, neck and back

side of body. Dr. B.M. Upadhyay found the following

injuries :-

(1) Incised wound 7cmx3cm muscle deep, below the chin, transversely oblique, margins having collected blood, edges were sharp.

(2) Incised wound 3cmx1.5cmxdeep bone spindle shape with in line with left nostril and left lobule of the ear, transversely placed in the left cheek area with clotted blood. (3) Incised wound 9cmx ? cmx1/4cm over the left cheek with clotted blood. (4) Incised wound 1cmx1/2cmx1/2cm deep below the lobule of left ear, wound with with clotted blood, placed transversely. (5) Incised wound 3cmx1/4cm skin deep over the left side of chin with clotted blood.

(6) Incised wound 10cmx1/4cmx1/4cm over anterior surface of neck with clotted blood. (7) Incised wound 9 cmx1/4cm skin deep smeared with clots of blood in the neck. (8) Contusion 11cmx7cm over skull on right temporal region. (9) 10 abrasion over front side of neck spread towards right shoulder. (10) So many small stab wounds were also found over the neck with clotted blood.

In internal examination of dead body, Dr. Upadhyay

found that the Trachea was found to be breached partly below

the thyroid cartilage. Cricoid cartilage was also fractured and

spinal card was totally in cutting condition. He also found that

bones of cervical vertebra were totally dislocated and ruptured.

After conducting the postmortem, Dr. Upadhyay opined

that all the above injuries were caused by sharp and hard object

and were ante-mortem in nature. All burn injuries were caused

after the death of the deceased and he opined that bodily

injuries were sufficient to cause death in normal course. Just

after damage of trachea and cervical parts, Baba Govind Shah

has died within 24 hours from the postmortem. Dr. Upadhyay

thoroughly described all above injuries in the examination-in-

chief and his testimony is still unrebutted. The medical

evidence duly corroborated the prosecution case which

establishes that the deceased was killed by the appellant and

thereafter the appellant ablazed him by pouring petrol on him.

The appellant had motive to commit murder of Baba

Govind Shah. He was annoyed with the deceased. He was

present with the deceased alongwith his younger brother just

before the incident. The appellant was senior to the deceased

even then the deceased got Gaddi and became successor of

Baba Narayan Shah and was holding the main seat of

Gurudwara. At the time of incident, it was accepted by the

appellant that he and his younger brother both were residing

with deceased at Gurudwara in the same premises. The

appellant has not taken the plea of alibi. The appellant also

informed about aggression and misbehaviour of deceased with

him and his brother. As they made an attempt to create a scene

that the deceased himself committed suicide by burning

himself.

After considering all the circumstances and the evidence,

we are of the opinion that only the appellant is liable for the

incident.

In view of the above, we do not find any inconsistency in

the prosecution evidence which gives the benefit of doubt in

favour of the appellants. Hence, learned trial Court has rightly

convicted the appellant under Section 302 of IPC for

committing the murder of Baba Govind Shah.

In view of foregoing, we do not find any reason to

interfere in the impugned judgment. Accordingly, the appeal is

hereby dismissed.

The appellant is on bail and his bail bond is cancelled

and he is directed to surrender immediately before the trial

Court to undergo the remaining sentence, failing which the trial

Court shall take appropriate action under intimation to the

Registry.

A copy of this judgment be sent to the trial Court for

information and compliance alongwith its record immediately.