Rajesh @ Pappu & another vs State of Madhya Pradesh

Both these criminal appeals are being disposed of by a common judgment, as they have arisen out of the judgment dated 15.3.2005 passed by

the learned Sessions Judge, East Nimar, Khandwa in ST No.153/2002.

Criminal Appeal No.905/2005 has been preferred by appellants Rajesh @ Pappu and Bablu, whereas Criminal Appeal No.992/2005 has been

preferred by appellant Neeraj Sen. They are convicted under Section 302 read with Section 34 of IPC and sentenced to rigorous imprisonment

for life and a fine of Rs.2,000/ each and in default of payment of fine they are further sentenced to undergo RI for six months each.

The prosecution case, in short is that on 9.5.2002 at around 21.30 hrs (i.e.9:30 PM) when complainant Omprakash (PW1) was coming back

to his home in his auto, as soon as he reached near his house, he saw that his neighbours Rajesh @ Pappu, his younger brother Bablu and Neeraj

armed with sword, knife and gupti respectively were assaulting his brother Vinod and his wife Narmada Bai. They had badly injured Vinod and

Narmada Bai and when Narmada Bai tried to run away, she fell down near an alley (Gully) in front of Dattaray Dhatre''s house, where she was

again assaulted by appellant Pappu who caused injuries with sword and from there he ran back again to inflict injuries to Vinod, who was already

lying in front of grocery shop of Rameshwar and to whom injuries were being caused by appellants Bablu and Neeraj with knife and gupti,

appellant Rajesh @ Pappu also joined them in causing injuries to Vinod with the aid of sword. Both Vinod and his wife Narmada Bai died on the

spot. The reason for this incident is said to be a dispute which took place between the Vinod and Pappu four days ago on 5.5.2002.

The FIR (Ex.P1) was lodged by complainant Omprakash (PW1) at around 22 hours i.e. within half an hour of the incident. After completing the

investigation, the charge sheet was filed against the present appellants, and the learned Sessions Judge, East Nimar, Khandwa after recording the

evidence, convicted them as aforesaid under Sections 302/34 of IPC.

Being aggrieved by the impugned judgment, finding and sentence, the instant appeals have been preferred by the appellants.

Shri Abhisek Tiwari and Shri V.P. Singh, learned counsel for the appellants have submitted that it is a case of last seen together as the presence

of complainant Omprakash as also other witnesses is highly doubtful on the spot on account of their conduct at the time of the incident and there is

no other evidence to connect the present appellants with the aforesaid offence. It is further submitted by the learned counsel for the appellants that

the present appellants have been falsely implicated in the matter due to an ongoing enmity between the parties. In support of their contentions, they

have relied upon the judgments of Hon''ble Apex Court in the case of Maniram Vs. State of UP, reported as 1994 SCC, Supl. (2) 289 as also in

the case of Maruti Rama Naik Vs. State of Maharashtra reported as (2015)9SCC795.

On the other hand, Smt. Nirmala Nayak, learned counsel for the State has submitted that it is a gruesome case of double murder whereby the

deceased Vinod and his wife Narmada Bai have been brutally murdered by the appellants, on the street, in front of their house by causing

indiscriminate injuries with the aid of sword, knife and gupti. Learned counsel for the State has further submitted that there is an eyewitness of the

incident and there is no reason for the complainant to falsely implicate the present appellants and allow the real culprits escape specially when his

brother Vinod and sisterinlaw have been murdered in front of his eyes.

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

So far as the nature of deaths of Vinod and Narmada Bai is concerned, the same was homicidal in nature, which is proved by Dr.A.N.Bajpai

(PW5) vide Ex.P/6, who conducted the postmortem of deceased Vinod and Dr. Narendra Kumar Jain (PW4), who conducted the postmortem of

deceased Narmada Bai, wife of deceased Vinod vide Ex.P/4.

Dr. Narendra Kumar Jain (PW4), who conducted the postmortem of deceased Narmada Bai, has also found many stab wounds on the body

of Narmada Bai caused by sharp cutting weapons. The number of injuries caused to Narmada Bai were as under:

(a) Incised wounds on the right thigh.

(b) Incised wound 3"" x 1"" x 1"" over the right side of neck.

(c) Incised wound 2"" x 1"" x 1/2"" over the right side of face.

(d) Incised wound 1"" x 1/2"" x 1"" over the left side of stomach.

(e) Incised wound on the back of the chest.

(f) Many incised wounds over the chest, right forearm and left elbow.

According to this witness, the cause of death is on account of cardiorespiratory failure due to injuries on the vital part of the body.

Dr.A.N.Bajpai (PW5) has stated that he conducted the postmortem of deceased Vinod, who was aged 25 years. He found too many stab

wounds on the chest, neck, left leg and head of deceased Vinod and all the injuries were bone deep and on the chest, stomach and neck, the same

were of deep cavity. He also found bone deep injuries on the forearm, backside of his neck on the collarbone, stomach etc. It is surprising that Dr.

Bajpai has not even mentioned the number of injuries received by deceased Vinod, it is probably because the injuries were too many to count and

the cause of death is shown to be due to extensive hemorrhage on account of injuries on the vital parts of the body.

Both the doctors opined vide Ex.P/5 and P/7 respectively that the aforesaid injuries can be caused by weapons of assault like sword, knife and

gupti. In view of the same, it is established that the deaths of both deceased were homicidal in nature.

So far as the occurrence of the incident is concerned, the same has been witnessed by Omprakash (PW1), the brother of the deceased Vinod.

According to this witness, he drives an autoricksaw and on the date of incident when he was coming back to his home and as soon as when he

reached near his house at around 9:30 PM, he saw the accused Pappu, Bablu and Neeraj were assaulting his brother Vinod and his wife Narmada

Bai. Pappu armed with sword, Bablu armed with knife and Neeraj armed with gupti. All three accused persons were assaulting his brother Vinod

and his wife Narmada Bai, and when Narmada Bai tried to run away, she fell down near a Galli in front of a Dattaray Dhatre''s house, where she

was assaulted by appellant Pappu who caused injuries with sword and from there he ran back to assault Vinod, who was already lying in front of

grocery shop of Rameshwar and to whom injuries were being caused by appellants Bablu and Neeraj by knife and gupti respectively and appellant

Rajesh @ Pappu also caused injuries to him with the aid of sword. After committing the aforesaid crime, all the accused persons ran away from

the spot. According to this witness, prior to this incident, on 5.5.2002 a dispute had arisen between deceased Vinod and accused Pappu which

ultimately led to commission of aforesaid offence by the accused persons. Soon after the incident, an FIR (Ex.P1) was lodged by this witness at

around 10 O''clock in the night, and thus within half an hour the FIR was lodged against three named accused persons with all the details of the

incident. He is also a witness to the spot map (Ex.P2) in which the place where both the bodies were lying has been depicted which also confirms

the eyewitness account of PW1 Omprakash.

In the cross examination of Omprakash (PW1) an attempt has been made to smear/malign the character of deceased Vinod that he was

involved in a criminal case under Section 307 of IPC and was quarrelsome in nature. His wife has also lodged a report against him, but of all such

suggestions, the complainant Omprakash has answered in negative. In his cross examination a suggestion has also been made that on 9.5.2002

there was a function of engagement in the house of Dinesh Sonkar at Jabran Nagar and he had gone to the said function to which this witness has

replied that he came back immediately after having dinner, but his brother Santosh had not gone to the said function. This witness has also stated

that he did not go near the assailant and did not raise any hue and cry due to fear that the same treatment would be meted out to him as well, hence

he kept quiet. Some minor omissions and contradictions are also there, but in the considered opinion of this Court, the same are inconsequential. A

suggestion was also made to him that he has not seen any incident to which he has denied, but this Court also finds that no suggestion was put to

him that the appellants were not present on the spot and they did not cause any injury to the deceased.

Umesh has been examined as PW2, who happens to be a child witness aged nine years. He is brother of deceased Narmada Bai and

deceased Vinod happens to be his brotherinlaw. He used to live with his sister Narmada Bai. He is a witness to the incident on the fateful night. He

stated that all the accused persons were assaulting his brotherinlaw Vinod and when his sister Narmada Bai went to save him, she was also

assaulted by accused Bablu with the aid of sword on her neck and when she tried to run, she fell down near a shop after some paces. He has also

stated that when the incident took place, he was standing on the door of his house and saw that the accused persons were assaulting Vinod and

Narbada bai in front of his house. Accused Neeraj had a gupti, Bablu had a knife and Pappu had a sword. He has further stated that accused

Bablu was assaulting his sister with a knife when she was fell down. His testimony has remained unshaken.

Sanjay (PW3) is a friend of deceased Vinod. He knows all the accused persons as also the deceased persons. According to him, he came to

the house of deceased Vinod and when he went to purchase Gutka Pouch, he heard cries coming from the house of Vinod and saw that the

accused persons Pappu, Bablu and Neeraj were assaulting Vinod with sword, knife and gupti and when his wife Narmada Bai came to save him,

she was also assaulted. This witness also narrated the same story that Narmada Bai tried to run from the spot and was chased by accused Pappu,

who was armed with a sword and assaulted her and thereafter accused Pappu again came back and assaulted Vinod. All the accused persons

caused severe injuries to the deceased persons. He also stated that he had seen the incident from around 100 paces. Similar statement has been

given by Bhuru @ Juber (PW7).

Santosh Kumar (PW8) also claims to be an eyewitness. He is also a witness to various documents like Panchayatnama and Safina form etc.

The spot map Ex.P/14A was prepared by Rajendra Prasad Gautam (PW10), who was the Scientific Officer of the police. Mohd. Saeed has been

examined as PW11. He also claims to be an eyewitness of the incident.

Yakub (PW12) is a witness to the seizure memo, arrest memo etc. and has confirmed the signing of the memos. After the arrest of accused

Pappu and Bablu, Pappu got recovered swords vide Ex.P17 & 19. Similarly Bablu got recovered a knife vide Ex.P18 & Ex.P20 and accused

Neeraj got recovered a gupti vide Ex.P25 & P26. Thus, recovery of articles have been duly proved by the prosecution. This witness has also

stated that a splandour motorcycle was also seized from appellant Pappu vide Ex.P21 & P22, the clothes were also recovered from accused

Bablu vide Ex.P23.

Yunus Khan (PW13) has been declared hostile. He stated that when he came to his house after doing the labour work, the incident had

already taken place. In his cross examination, he has been asked that he heard cries of a lady on the fateful night to save his man, to which he has

given answer in affirmation. Although he has denied that when he came, he saw the accused persons with arms as described above.

JM Diwan (PW15) is the Inspector as also the Investigating Officer. He has stated that blood stained soil was seized from the spot vide Ex.P3.

He has also stated that he had recovered the blood stain clothes vide Ex.P21 from accused Rajesh @ Pappu, vide Ex.P23 from accused Bablu

and vide Ex.P27 a sword has been recovered at the instance of accused Rajesh. This witness has further stated that other weapons were

recovered from accused Bablu and Neeraj. He had also made a query to the concerned doctors that whether injuries can be caused by sword,

knife and gupti and the same were also sent to the FSL Indore from where a report Ex.P29 was received in which item No.14,16, 17,18, 19 and

20 were stained with human blood which are the soil and clothes of the deceased persons. Nothing substantive could be extracted from his cross

examination by the accused persons.

In their defence, appellants have examined Manoj as DW1. According to him, he is also resident of Sanjay Nagar, Jabran Colony where one

Omprakash s/o Jangali Sonkar also resides. Omprakas''s son Ritesh happens to be this witness''s brotherinlaw. According to this witness, on

9.5.2002 there was an engagement ceremony of Reena d/o Ritesh which took place from 8:00 PM to 12:00 in the night in which Ramdayal, his

sons Omprakash, Santosh and Raju and their mother were also present and this witness was serving the food. It is further stated by him that at that

time at around 10:30 PM the police came there and took these persons away. In his cross examination he has admitted that around 200 persons

attended the programme, although he was serving food but he does not member the name of cook. He also stated that he does not wear a watch

and has also stated that no photographer was present. The evidence of this witness does not inspire confidence for the reason that he is not the

person, who had invited the family members of the deceased Vinod specially Omprakash (PW1) amongst other family members. In the said

programme, he was only one of the person, who was serving the food. Secondly, according to him, there was no photographer present whereas

proper person to depose such fact was the person in whose house the engagement ceremony was being held viz. Ritesh or Omprakas s/o Jangali

Sonkar. Thirdly, it is not believable that in the engagement ceremony where 200 persons have been invited, no photographer would be present.

Thus, in the absence of the said person namely Omprakash s/o Jangali Sonkar or Ritesh whose daughter Reena''s engagement took place or any

other corroborative evidence like photographs, the deposition of this witness does not help the appellants and cannot be relied upon.

Apart from that in their accused statement recorded under Section 313 of Cr.P.C. no specific defence has been taken by the accused persons

except that they have been falsely implicated. Thus, it is not their case that on the date of incident they were elsewhere attending the engagement

ceremony.

So far as the judgments cited by the learned counsel for the appellants in the case of Maniram (supra) and Maruti Rama Naik (supra) are

concerned, the same are distinguishable on the facts and circumstances of the present case and are of no help to the appellants. The conduct of the

witnesses cannot be said to be unnatural in the facts and circumstances of the case where the two brutal murders of his brother and sisterinlaw

took place right in front of the eye witness Omprakash (PW1) and looking to the injuries inflicted on the persons of the deceased, one can only

imagine the rampage with which the accused persons had carried out their intentions, it was sufficient to send any person in a state of shock.

From the aforesaid discussion, it can be easily culled out that the present appellants have committed the murder of Vinod and his wife

Narmada Bai, which has been witnessed by many persons whose presence on the spot cannot be said to be unnatural and the narration of the

incident is also corroborated by the medical evidence, spot map as also by the weapons recovered from the accused persons. As already

observed that none of the witnesses have been put a specific question regarding the defence of the accused persons that they were not present on

the spot and no corroborative evidence has been brought on record to demonstrate that the accused persons were not present on the spot.

In view of the aforesaid discussion, we have no hesitation to hold that the learned Judge of the trial Court has not committed any error in

convicting the present appellants for the aforesaid offence. In the circumstances, the above mentioned criminal appeals filed by appellants Rajesh

@ Pappu, Bablu and Neeraj Sen being devoid of merits are liable to be dismissed and accordingly the same are hereby dismissed. At present the

appellants are in jail, they shall serve the remaining jail sentence as awarded to them by the learned trial Court in accordance with law.