Nathan @ Nathna Kushwaha vs State Of Madhya Pradesh

Challenge in this Criminal Appeal filed under Section 374 of the CrPC is to the judgment dated 16.1.2008 passed by Second Additional Sessions Judge,

Shivpuri in Sessions Trial No.94/2006, whereby appellant Nathan has been convicted under Section 302/34 of the IPC and sentenced to life

imprisonment with fine of Rs.100/- with default stipulation. Â

It would be significant to mention here that previously when appellant Nathan was absconding, judgment relating to co-accused persons Matadeen,

Shivcharan and Drobai was passed by the trial Court on 14.8.2006 and thereafter Nathan was arrested, hence supplementary charge sheet was filed

and he has been separately tried.

Prosecution's case in brief is that complainant Sheelabai (PW-5) on 4.2.2006 at 15=30 hrs. lodged FIR (Ex.P3) regarding incident of the same day

occurred at 14=30 hrs. to the effect that at that time she was residing near Gaushala and was engaged in occupation of washing clothes. On the date

of incident she was with her husband Brij Mohan and son Dharmendra at her house and at about 2=30 pm Matadeen had taken her husband Brij

Mohan from out of her house. At the time of incident her son Jeetu @ Jitendra (PW-6) intimated her that a quarrel was occurring with his father,

when she reached the scene of occurrence with both of her sons, she saw that near the shop of Matadeen, Nathan Kushwaha, Shivcharan Jatav,

Matadeen Kori and Drobai Jatav were beating her husband. Nathan had assaulted with axe over head of her husband. Shivcharan and Matadeen

assaulted with sticks. The quarrel had occurred on account of money due to the accused persons for the work of ironing the clothes done by her

husband. Her husband died on the spot. Matadeen assaulted with his stick on the back of her son Dharmendra. At Police Station Dehat Shivpuri FIR

(Ex.P/3) was scribed by Sub-Inspector Madam Mohan Malviya (PW-9).

After recording of FIR, Sub-Inspector Madan Mohan Malviya (PW-9) reached on spot and after issuing Safina Form (Ex.P/10) prepared inquest

memo (Ex.P/11) in presence of panch witnesses and sent the dead body of deceased Brij Mohan for postmortem with application (Ex.P/16).

Madan Mohan Malviya also prepared spot map (Ex.P/15) at the instance of complainant Sheelabai and at the same time separately prepared seizure

memo (Ex.P/12) regarding seizure of blood-stained soil and simple soil. Injured Dharmendra (PW-7) was also sent for his medical examination.Â

Dr. D.K.Bansal (PW-1) on 4.2.2006 at District Hospital Shivpuri at 4=30 pm started post mortem of dead body of Brij Mohan and recorded his

post mortem report (Ex.P/6). Dr. M.L.Agarwal (PW-8) on 4.2.2006 at District Hospital Shivpuri in the evening at 5=30 pm examined Dharmendra

(PW-7) and recorded his MLC report (Ex.P/2). With draft memo (Ex.P/22) dated 5.5.2006 of Superintendent of Police Shivpuri, seized material was

sent to Regional Forensic Science Laboratory, Gwalior. At that time Nathan was absconding, hence after arrest of Ravi, Shivcharan, Matadeen and a

lady Drobai, charge sheet was filed against them and above mentioned accused persons were separately tried before the trial Court.

Later on ASI Ganesh Ram (PW-4) arrested appellant Nathan on 30.4.2007 vide arrest memo (Ex.P/23) and on disclosure statement (Ex.P/24)

given by Nathan in presence of panch witnesses, an axe was seized which was produced by Nathan from behind the Gaushala which was kept

beneath stone and a seizure memo (Ex.P/25) was prepared. After completing formal investigation, supplementary charge sheet was filed against the

present appellant and his case was also committed.

Appellant Nathan denied the charge for the offence punishable under Section 302/34 of the IPC. In his trial Dr. D.K.Bansal (PW-1), Head

Constable Nirmal Kumar (PW-2), Vinod (PW-3), ASI Ganesh Ram (PW-4), complainant Sheelabai (PW-5), Jitendra (PW-6), Dharmendra (PW-7),

Dr. M.L.Agarwal (PW-8) and Investigating Officer Madan Mohan Malviya (PW-9) were examined for the prosecution. It was the defence of

appellant Nathan that he has been falsely implicated. No defence witness was examined for the appellant. After hearing the trial Court convicted and

sentenced the appellant Nathan as aforesaid. Hence, this appeal.

Learned counsel for the appellant vehemently contended that there are material contradictions and inconsistencies in the evidence of complainant

Sheelabai (PW-5) and her both sons Jitendra (PW-6) and Dharmendra (PW-7). It is clear from the evidence of complainant Sheelabai (PW-5) that

she was not an eye-witness, though she lodged FIR (Ex.P/3) as an eye-witness. Sheelabai (PW-5) and her son Jitendra (PW-6) were declared hostile

by the prosecution. The only examined panch witness Vinod (PW-3) regarding alleged disclosure statement and seizure of axe by the appellant has

not supported the prosecution case and evidence of relating Investigating Officer ASI Ganesh Ram (PW4) and another panch witness of relating

disclosure statement and seizure memo was not examined, hence the alleged recovery of axe was not proved and allegedly seized axe was also not

sent to FSL, hence the evidence regarding seizure of axe was totally immaterial and futile. It was further contended that though incident occurred in

residential area of Police Station Dehat Shivpuri, no any independent witness of the locality was examined and the eye-witness account given by

complainant Sheelabai (PW-5) and both of her sons is mutually contradictory and trial Court erred in placing reliance on such infirm evidence. Hence,

it is prayed that appeal be allowed and the appellant be acquitted.

Per Contra, learned Public Prosecutor appearing on behalf of the respondent/State supporting the impugned judgment contends that in the light of

referred citations the trial Court has properly and legally appreciated the evidence available on record and though the appellant Nathan was named in

the FIR lodged on 14.2.2006 by wife of the deceased but the appellant Nathan remained absconding and he could be arrested only on 30.4.2007 and

even in absence of FSL report regarding axe, eye-witness account given by sons of deceased was trustworthy and trial Court did not err in placing

reliance on it. Hence, dismissal of appeal is prayed.

It is clear from the evidence of Dr. D.K.Bansal (PW-1) and his post-mortem report (Ex.P/6) that on 4.2.2006 in District Hospital Shivpuri at 4=30

pm at the time of starting of autopsy of deceased Brij Mohan, he found following external injuries:-

(i) An incised wound size 8x1 cm deep up to bone on right parietal region of skull, beneath which parietal bone was fractured and tissues membrane

and brain was also cut and clotted blood was also present;

(ii) An incised wound, size 10x1 cm deep up to bone on area of right cheek, which was through and through and beneath which mandible bone was

fractured;

(iii) An incised wound, size 3x1 cm deep up to muscle obliquely placed, 2 cm away from the injury no. (i);Â

(iv) An incised wound, size 2x1 cm deep up to bone on just above left eye-brow.

(v) A contusion, size 5x2 cm on left side of chest over extoral region.

In the opinion of Dr. Bansal, all the injuries found on dead body of the deceased were ante mortem and above mentioned incised wounds were

caused by hard and cutting object whereas above mentioned injury of contusion could be caused by hard and blunt object and injury no. (i) was

sufficient in ordinary course of nature to cause death and in his opinion,, Brij Mohan had died due to causing of injury to vital organ brain within 6

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

and were sent to relating police station. There was no material challenge to the evidence of autopsy surgeon and from his evidence it is clear that the

deceased Brij Mohan suffered homicidal death.

Complainant Sheelabai (PW-5) and her son Jitendra (PW-6) were declared hostile by the prosecution as their evidence was not totally in

accordance with their police statement. Complainant Sheelabai (PW-5) deposed that on the date and at the time of incident she had gone for washing

clothes at a house situated in Adarsh Nagar Colony and her both sons Jitendra and Dharmendra came to above mentioned colony, then she with both

of her sons reached to scene of occurrence and saw that dead body of her husband was lying on earth and the dead body of her husband was lying in

front the door of appellant Nathan, but at that time Nathan was not present because he had run away, but in next breath she also deposed that she had

seen appellant Nathan fleeing away from the spot having an axe and at that time appellant was at about 100 feet away from the scene of occurrence.

She also deposed that at the time of incident her sons Dharmendra and Jitendra tried to save their father, then her son Dharmendra was also beaten

by Nathan and co-accused persons. Sheelabai deposed that she lodged the FIR (Ex.P/3) at Police Station Dehat and thereafter the dead body of her

husband was taken by police from the spot and spot map (Ex.P/15) was prepared in her presence. After declaring her hostile by the prosecution, she

admitted that she had mentioned the portion of her FIR (Ex.P/3) that in her presence the appellant assaulted by an axe over head of her husband and

her husband was beaten by sticks by Shivcharan and Matadeen, but in cross-examination (para 5) she again deposed that when she reached on spot,

then her husband was lying on earth.

In spot map (Ex.P/15) prepared by Investigating Officer Madan Mohan Malviya (PW-9), it is mentioned that dead body of Brij Mohan was lying

in front the shop of co-accused Matadeen. It has also been argued by the appellant's learned counsel that evidence of complainant is contradictory

regarding spot but complainant Sheelabai (PW-5) deposed in cross-examination (para 6) that appellant Nathan's house and Matadeen's house are

adjacent, hence there appears no contradiction regarding scene of occurrence. Contrary to her FIR, she deposed in crossexamination (para 7) that in

the morning at 9 to 10 am her husband was taken out from her house by appellant Nathan and Shivcharan whereas in the FIR it was mentioned that

Matadeen had taken out her husband from her house. In cross-examination (para 8) complainant clearly deposed that her son Dharmendra had

received injuries before he came with Jitendra to call her at the house where she was washing the clothes. Â

Jitendra (PW-6) deposed that at the time of incident when he was playing in front the shop of Ravi, then he saw that appellant Nathan was

assaulting his father by an axe and his father received injuries on his head and hand from axe and at that time 2-3 persons were with Nathan, one of

whom had caught hold the hands of his father, but other companions of appellant Nathan were empty handed and after receiving injuries his father fell

down on the spot and died, thereafter he had gone to call his mother and when he returned with his mother on spot, then none was present on the spot.

After declaring him hostile by the prosecution, Jitendra deposed that quarrel had occurred between his father and Nathan due to money due against

the appellant for the work of ironing and at the time of incident, after running he had reached to the house and intimated his mother and brother

Dharmendra and Dharmendra was also beaten by Matadeen on spot. Jitendra identified the appellant at the time of recording of his deposition as the

person who assaulted his father. He clearly deposed in crossexamination (para 3) that when he reached to his house, then his mother was not in the

home and only Dharmendra met him in the home. Thereafter Dharmendra had reached on scene of occurrence but he had gone for calling his mother

at other place. He iterated in cross-examination that when his mother reached on spot, there was no accused person present.

Dharmendra (PW-7) deposed that on the date of incident at 2=30 pm he was at his house, then his brother Jitendra (PW-6) came to the house and

intimated him that a quarrel is occurring between their father and appellant Nathan, an old lady and Nathan's son, thereafter he reached to save his

father in front the house of Nathan and at that time the old lady was instigating other co-accused persons for beating his father and appellant's son had

caught hold of his father's hand and appellant Nathan caused injuries by his axe on head, hand, cheek and neck in his presence, but at that time

Shivcharan was empty handed and when he tried to save his father, Nathan caused an injury on his back by handle fixed with the axe and at that time

his mother had gone for her labour work and thereafter he went for calling his mother and when he returned with his mother on scene of occurrence,

his father had died. Dharmendra deposed in cross-examination that scene of occurrence is only two houses away from his house and when after

receiving intimation from Jitendra he reached on spot, then firstly he had gone to scene of occurrence when beating of his father was continued and

from scene of occurrence he had gone to call his mother. In para 7 of his cross-examination, Dharmendra deposed that his mother had come on spot

about half an hour later after the incident. Dharmendra and Jitendra denied the suggestion given by defence counsel that in drunken state due to

drinking of liquor their father had fallen down on spot, however only by falling on ground, causing of incised wounds is not possible.

It is clear from total evidence of Jitendra (PW-6) and Dharmendra (PW-7) that their mother complainant Sheelabai (PW-5) was not an

eyewitness to the incident, though in her FIR (Ex.P/3) and even in examination-in-chief she tried to speak about seeing Nathan running away at some

distance having an axe but such portion appears to be exaggerated and improved, however it is clear from the evidence of both of her sons that after

the incident they had gone to call their mother and their mother had come on spot. It is clear that FIR (Ex.P/3) was lodged just after one hour by the

widow of the deceased Sheelabai, which is even proved by the evidence of Investigating Officer Madan Mohan Malviya (PW-9) who scribed the

FIR. In spot map (Ex.P/15) prepared by above mentioned Investigating Officer, the shop of Ravi is also mentioned.

Regarding improvements or exaggerations made by some of the prosecution witnesses, it has been observed by the Apex Court in the case of

State of UP vs. Anil Singh (AIR 1988 SC 1998) as follows :-

“13. Of late this Court has been receiving a large number of appeals against acquittals and in the great majority of cases, the prosecution version is

rejected either for want of corroboration by independent witnesses, or for some falsehood stated or embroidery added by witnesses. In some cases,

the entire prosecution case is doubted for not examining all witnesses to the occurrence. We have recently pointed out the indifferent attitude of the

public in the investigation of crimes. The public are generally reluctant to come forward to depose before the Court. It is, therefore, not correct to

reject the prosecution version only on the ground that all witnesses to the occurrence have not been examined. Nor it is proper to reject the case for

want of corroboration by independent witnesses if the case made out is otherwise true and acceptable. With regard to falsehood stated or

embellishments added by the prosecution witnesses, it is well to remember that there is a tendency amongst witnesses in our country to back up a

good case by false or exaggerated version. The Privy Council had an occasion to observe this. In Bankim Chander v. Matangini, 24 Cal WN 626 :

(AIR 1919 PC 157), the Privy Council had this to say:

That in Indian litigation it is not safe to assume that a case must be false if some of the evidence in support of it appears to be doubtful or is clearly

unture, since there is, on some occasions, a tendency amongst litigants to back up a good case by false or exaggerated evidence.

In Abdul Gani v. State of Madhya Pradesh, AIR 1954 SC 31 Mahajan, J., speaking for this Court deprecated the tendency of courts to take an

easy course of holding the evidence discrepant and discarding the whole case as untrue. The learned Judge said that the Court should make an effort

to disengage the truth from falsehood and to sift the grain from the chaff.

It is also our experience that invariably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But that is no

ground to throw the case overboard, if true, in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the

Court to cull out the nuggets of truth from the evidence unless there is reason to believe that the inconsistencies or falsehood are so glaring as utterly

to destroy confidence in the witnesses. It is necessary to remember that a Judge does not preside over a criminal trial merely to see that no innocent

man is punished. A Judge also presides to see that a guilty man does not escape. One is as important as the other. Both are public duties which the

Judge has to perform.â€​

It is also clear from the evidence of Dr. M.L. Agarwal (PW-8) and his MLC (Ex.P/2) that on the date of incident at District Hospital, Shivpuri at

5=30 pm he had found a sign of abrasion of size 1x2 cm on left side of chest and in his opinion, this single injury of Dharmendra was caused by hard

and blunt object within 6 hours from his examination and it was of simple nature. In the incident causing of injury to Dharmendra is also mentioned in

prompt FIR (Ex.P/3) and on this point the evidence of Dharmendra (PW-7) is corroborated by medical evidence available on record.

As earlier referred, in the case of Anil Singh (supra) it has been observed that public are generally reluctant to come forward to depose before the

Court. Hence, only because of nonexamination of any independent witness, the evidence of Jitendra (PW-6) and Dharmendra (PW-7) as eye-

witnesses could not be discarded totally, as it is clear from the case of prosecution and evidence that Dharmendra (PW-7) was informed at his home

about the incident by his younger brother Jitendra (PW-6) and thereafter Dharmendra had reached on spot and tried to save his father. Hence, the

fact mentioned by Jitendra (PW-6) and Dharmendra (PW7) regarding seeing the incident appears to be trustworthy and reliable and due to some

minor and trivial contradictions and omissions their evidence could not be discarded regarding the incident.

It is true that panch witness Vinod (PW-3) of arrest memo (Ex.P/23), disclosure statement (Ex. P/24) and seizure memo relating to axe (Ex.P/25)

has not supported the prosecution's case and evidence of relating police officer ASI Ganesh Ram (PW-4). Vinod (PW-3) was declared hostile by the

prosecution and another panch witness of above documents Kishan Singh was not examined before the trial Court, in the trial of present appellant.

Hence, the fact of seizure of an axe on disclosure statement of appellant Nathan was not proved. Similarly the seized axe was not sent to FSL, though

Ganesh Ram (PW-4) identified relating axe as Article 'A' at the time of recording of his evidence before the trial Court. Therefore, it is clear that

circumstantial evidence against the appellant in the shape of alleged seizure of axe at the instance of appellant Nathan was not proved and in absence

of FSL report the use of seized axe by the appellant in the incident is also not established. The factum of seizure of an axe was unable to establish any

connection between the appellant Nathan and incident, but only due to this fact otherwise appearing reliable evidence of eye-witnesses Jitendra (PW-

6) and Dharmendra (PW-7) materially corroborated by their mother complainant Sheelabai (PW-5) could not be discarded.

On the point of negligence or fault regarding non-sending the seized axe to the FSL, in the case of State of Punjab vs. Gurmit Singh and others

(AIR 1996 SC 1393) it has been observed that the complainant or victim is having no control over the Investigating Officer and only due to negligence

or defect of investigation the evidence of otherwise reliable witnesses could not be discarded.

It is also to be remembered that appellant Nathan was named in the FIR lodged on the date of incident, i.e., 4.2.2006, but it is clear from the

evidence of ASI Ganesh Ram (PW-4) that the appellant could only be arrested on 30.4.2007. Hence, it is clear that the appellant Nathan remained

absconding and could be arrested 14 months after the incident and this fact could not be ignored in the light of the judgment in the case of Sidhartha

Vashisht @ Manu Sharma vs. State (NCT of Delh) [(2010) 6 SCC 1]. The appellant has not offered any explanation regarding his absconsion for

such a long period in his examination conducted under Section 313 of the CrPC, whereby the judgment by the trial Court was passed on 14th August,

2006 in relation to separately tried coaccused persons Matadeen, Shivcharan and Drobai.

We are of the considered opinion, in the light of above mentioned citations, that the trial Court did not err in in convicting and sentencing the

appellant for the charged offence. The appeal filed by the appellant Nathan appears to be devoid of merits. 24. In the result, the appeal filed by the

appellant Nathan @ Nathna Kushwaha is dismissed and his above mentioned conviction and sentence as recorded by the above mentioned trial Court

is hereby affirmed.

Appellant Nathan is in jail. Let the result of this appeal be intimated to him through relating Jail Superintendent. The order regarding disposal of

seized material passed by the trial Court is also affirmed.

A copy of the judgment along with the record be immediately sent back to the trial Court for information and compliance.