Om Prakash & Anr vs State Of Madhya Pradesh

In both these appeals the legal validity of the judgment dated 17.02.2009 passed by the learned Special Judge (SC/ST Act), Sehore in Special Case

No.13/2008 has been assailed, therefore, they are heard and decided concomitantly.

Since both these appeals under Section 374 (2) of the Code of Criminal Procedure, 1973 have been filed by the appellants being aggrieved by the

judgment of conviction and order of sentence dated 17.02.2009, passed by the learned Special Judge, Sehore in Special Case No.13/2008, whereby,

the appellants have been convicted for the offences punishable under Sections 302/34 of the Indian Penal Code, 1860 and sentenced to suffer life

imprisonment with fine of Rs.1,000/-each and in default of payment of fine, R.I. for three months.

The prosecution story lie in a narrow compass. Suffice it to say that on 18.02.2008, the deceased Mangilal alongwith his friends Man Singh and Om

Prakash (present appellants) went to a liquor shop. The complainant Devanand (PW1) has seen his nephew Mangilal while he was withdrawing

Rs.200/- from the Bank. The complainant thereafter reached the liquor shop and asked his nephew Mangilal to go home and then Mangilal alongwith

present appellants proceeded for their houses. After a while, complainant Devanand followed them just to see whether they were going to their

houses or not, then he saw that near Dalmill of Chadtimal, Man Singh and Om Prakash were assaulting Mangilal by stones. When complainant

shouted not to beat, the accused Om Prakash said “Aaj is mehtar ko khatam hi karna haiâ€. When the complainant reached near them, they ran

away and the complainant found that Mangilal due to injuries inflicted by Man Singh and Om Prakash has succumbed to death. The complainant

Devanand went to the police station Ashta and lodged the report. On the basis of which, FIR (Ex.P/1) was registered. Thereafter, the investigation

was set in motion; the body of the deceased Mangilal was sent for postmortem; the Investigating Officer collected the blood stained soil and seized

stone used for killing the deceased containing blood and seizure memo Ex.P/3 was prepared. The accused Man Singh and Om Prakash were arrested

and as per their memorandum, blood stained clothes were seized.

After completion of the investigation, the charge-sheet was filed against the accused/appellants, who abjured their guilt and pleaded false

implication.

In the trial, the prosecution has examined as many as 9 witnesses, in which, complainant Devanand (PW1) was cited as eyewitness, who has also

lodged the FIR (Ex.P/1) at Police Station Ashta. The learned Trial Court relied upon the testimony of Devanand (PW1) treating him to be eyewitness

whose statement corroborated with that of PW2, who had also gone to the police station for lodging the FIR. Dr. R.C. Gupta (PW5), who has

conducted the autopsy and prepared the postmortem report (Ex.P/11) found six injuries over the head of the deceased and cause of death was found

to be due to Cardio Respiratory Failure and due to sudden and excessive hemorrhage on account of injuries inflicted on his body. The learned Trial

Court after analyzing the statement of witnesses produced by the prosecution and considering the query report and postmortem report came to a clear

conclusion that the case against accused/appellants has been found proved beyond the shadow of doubt and thus convicted them under Section 302/34

of IPC. Hence, these appeals have been preferred by the accused/appellants against their conviction and sentence awarded to them by the Trial

Court.

The learned Amicus Curiae appearing for the appellants has assailed the legality and correctness of the impugned judgment and submitted that the

Trial Court has committed error while recording a finding of conviction as firstly there are material contradictions in the statement of witnesses and

secondly the Trial Court has also committed an illegality treating the PW1 Devanand as eyewitness and relying upon his testimony. As per the learned

counsel, the statement given by the witnesses are false and fabricated, just to implicate the appellants. He further submitted that nobody has seen the

incident but it is the police who planted the eyewitness and as such the prosecution has failed to prove the case beyond reasonable doubt. Thus, the

finding of conviction is neither factually nor legally sustainable.

Per contra, learned Government Advocate for the respondent/State submitted that there is no perversity or illegality in the impugned judgment. He

further submitted that as per the evidence of the eyewitness Devanand (PW1), which has been corroborated with the medical evidence and seizure,

no interference in the finding arrived at by the Trial Court is called for. He further submitted that merely because there are some contradictions in the

statement of eyewitness that cannot be made basis for holding the appellants innocent.

We have heard the learned counsel for the parties and perused the record.

As per the statement of eyewitness Devanand (PW1) in paragraph 3, he has very categorically stated that when the deceased alongwith the

accused left the wine shop and proceeded towards their houses, he followed them and then he found that the appellants Man Singh and Om Prakash

conjointly assaulted the deceased with the help of stone and deceased was shouting for help and was saying that today they would kill him and abused

him of his caste. His statement is corroborated with the statement of Vinod Kumar (PW2) who reached the spot after the incident and found

Devanand (PW1) present there. PW5 Dr. R.C. Gupta, who had conducted the autopsy, has found that there were six injuries over the face and head

of the deceased and those injuries have been caused by hard and blunt object. As per the FSL report Ex.P/25 there was human blood found on the

stone. The seized shirt and pants of accused Man Singh also contained the human blood. After analyzing the evidence, it is found that there is nothing

which makes the presence of PW1 Devanand doubtful on spot as Deepak (PW6) who had first informed the police on mobile regarding the incident,

and as per his statement when he saw deceased was lying on the ground, only PW1 was present over there. It corroborates that PW1 has seen the

incident and there is no material produced by the defence which makes the statement of eyewitness Devanand (PW1) untrustworthy.

Although there were some contradictions pointed out by the defence in the statement of witnesses, but that cannot be made basis for disbelieving

the prosecution story. It is the consistent view of the Supreme Court that minor discrepancies on trivial matters not touching the core of the case, is

never considered to be fatal. The relevant case laws for the purpose of discarding the contention raised by the counsel for the appellants are reported

in case of Shamim v. State (Government of NCT of Delhi) (2018) 10 SCC 50;9 Govindaraju v. State of Karnataka (2009) 14 SCC 236; Boya

Ganganna and another v. The State of Andhra Pradesh (1976) 1 SCC 584 and State of Uttar Pradesh v. Krishna Master and Others (2010) 12 SCC

324.

Thus, we are of the considered view that on the basis of statement of eyewitness and statement of other witnesses corroborating the presence of

Devanand (PW1) on spot, his testimony cannot be doubted and it is not possible to hold that he was a planted witness. We do not find that the Trial

Court has committed any illegality or irregularity in assessing the statement of witnesses.

Furthermore, looking to the statement of witnesses and injury caused over the head of the deceased corroborated with the statement of doctor, it is

clear that the present appellants have murdered the deceased Mangilal and therefore they have rightly been found guilty of committing the offence.

The prosecution since proved its case beyond reasonable doubt, therefore, the conviction and sentence imposed upon the accused/appellants under

Section 302/34 of IPC is accordingly upheld.

It is seen from the record that appellant Man Singh is already in jail, although appellant Om Prakash is on bail, his bail bonds stand cancelled and

he is directed to be taken into custody forthwith and to surrender before the Trial Court for serving his remaining part of his jail sentence.

Ex consequentia, both the appeals fail and are hereby dismissed.