Ramnaresh alias Naresh Kol vs State of Madhya Pradesh

SubodhAbhyankar, J

This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved by the judgment and

order dated 28/10/2009 passed by the learned Fourth Additional Sessions Judge (FTC), Satna in ST No.199/2008, whereby the appellant has been

convicted under Section 302 of IPC and sentenced to life imprisonment with fine of Rs.1,000/- and in default of payment of fine, he is further

sentenced to one month’s R.I.

The prosecution story, in short, is that the appellant Ramnaresh alias Naresh Kol wanted to marry deceased Sankhi aged 17 years who was his

elder brother’s sister-in-law and daughter of Ganesh (PW-8) but she refused to marry him and owing to this resentment, on 29.4.2008 at around

5:30 PM in the evening when father of deceased Ganesh (PW-8) was not at home and his wife had also gone to fetch water, and deceased Sankhi

was sweeping the house, at that time the appellant, armed with an axe came from behind and caused injury on her neck causing grievous injury on her

neck, as a result of which she died at the spot. The aforesaid incident was witnessed by PW-2 Prakash aged 12 years, who happens to be the brother

of deceased Sankhi and on seeing he started screaming and the appellant fled towards the jungle. On hearing cries, PW-6 Munna came to the spot

and asked PW-2 Prakash what has happened and Prakash told him that appellant Ramnaresh has killed Sankhi. This witness has also tried to stop the

appellant whose clothes were also blood stained, but while running towards the jungle the appellant came across the house of Ramkali (PW-7) and

told her that he has finished Sankhi with an axe, and told her to kill him, at that time Ramkali told him that he has committed the offence, hence he has

to suffer for the same. Thereafter the Dehati Nalishi (Ex.P-1) was recorded by the City Inspector V.D. Pandey (PW-11) at the instance of PW-1

Dhanushdhari Kol, the elder brother of the deceased, who reached on the spot soon after the incident. Subsequently, the FIR (Ex.P-6) was also

lodged.

After the investigation was over, the charge sheet was filed against the appellant and after committal of the case, he was subsequently tried by the

Fourth Additional Sessions Judge, Satna, who after recording the evidence convicted the present appellant under Section 302 of IPC and sentenced as

aforesaid vide its judgment dated 28/10/2009. Being aggrieved by the said judgment, finding and sentence the instant appeal has been preferred by the

appellant.

Learned counsel for the appellant has submitted that the incident is allegedly witnessed by PW-2 Prakash, who was 12 years old at the time of

incident, and as such his testimony cannot be relied upon, as the chances of his being tutored cannot be ruled out. Learned counsel for the appellant

has further submitted that extra judicial confession made by the appellant to PW-7 Ramkali is also to be discarded. It is further submitted by the

learned counsel for the appellant that despite there being material contradictions and omissions on the part of the witnesses, the appreciation of

evidence has not been done properly by the learned Judge of the trial Court.

Learned counsel for the appellant has further submitted that the learned Judge of the trial Court has erred in relying upon the testimony of PW-6

Munna Rawat, who himself had not seen the incident and had heard about it only from PW-2 Prakash. Learned counsel for the appellant has further

submitted that the seizure witness Madan (PW-10) has been declared hostile and the other seizure witness has not been examined as he had died

before his evidence could be taken on record. In such circumstances the recovery of axe at the instance of the appellant cannot be relied upon and

hence the benefit of doubt ought to have been given to the appellant.

Learned counsel for the appellant has further submitted that in fact Madan (PW-10) has stated that the axe was recovered at the instance of the

appellant from behind the house of the deceased, which has not been considered by the learned Judge of the trial Court. It is further submitted that

although the learned Judge of the trial Court had discarded the evidence of the Investigating Officer PW-11 V.D. Pandey but still has come to a

conclusion that the axe was recovered at the instance of the appellant himself, and finding of conviction has been recorded against the appellant.

Learned counsel for the appellant has further submitted that the appellant was arrested on the next day while he was wearing the same blood stained

clothes, which were worn by him at the time of commission of offence and this evidence has also not been properly proved as its witness Madan

(PW-10) has been declared hostile. In the alternative, counsel has also submitted that even otherwise, no case under Section 302 of IPC is made out

under the circumstances and at the most he can be convicted under Section 304 part I or II of IPC for the period already undergone by him which is

around 9 years. Counsel has also relied upon Arun vs. State of Chhatttisgarh reported in (2017) 3 SCC 247.

On the other hand, learned counsel for the State has submitted that the prosecution has been able to prove its case beyond reasonable doubt. It is

further submitted that there is eye-witness account duly corroborated by the medical evidence and despite the fact that eye-witness Prakash (PW-12)

was 12 years old, his evidence cannot be discarded only on this ground specially when the learned Judge of the trial Court himself was satisfied

regarding capability of this witness to depose in the Court after preliminary enquiry from him. Thus, it is submitted that no interference is warranted in

the judgment of the trial Court, hence it is prayed that the appeal be dismissed.

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

From the record it is apparent that deceased Sankhi aged around 17 years died homicidal death. As per the post-mortem report Ex.P/8 proved by

PW-4 Dr. V.G.S. Bhadoriya, the deceased suffered grievous injury on her neck, which was 7 x 6 cm in dimension, running from the front part of the

neck to the back side also cutting cervical spine and cervical chord. In addition, there were other injuries also which included an incised wound on the

right palm measuring 2x1x1.5 cm and a scratch on her chest. The cause of death is said to be injury caused on the neck within 12 to 24 hours. Thus,

there is no doubt that the deceased died homicidal death.

Now the question is whether the appellant is responsible for the same. In this regard the prosecution has examined PW-1 Dhanushdhari who

happens to be brother of deceased Sankhi. Although he used to reside separately but soon after the incident, he was informed by PW-6 Munna Rawat

who happens to be his uncle’s son that appellant Naresh had murdered Sankhi and as soon as he reached the spot, he saw his sister lying in the

pool of blood and his younger brother PW-2 Prakash was also present. This witness has lodged Dehati Nalishi (Ex.P/1) and the blood stained soil was

recovered at his instance from the spot. According to him, the accused had an eye on his sister, which has led to the said crime.

PW-2 Prakash S/o Ganesh Kumar Kol is the eye witness and although he was 12 years old at the time of the incident, he has deposed that around

5 to 6 months ago, at around 4’ O Clock in the evening, when his sister Sankhi was sweeping the house and his mother and father were not

present in the house, the appellant came with an axe in his hand and assaulted his sister from the back side, who fell down immediately. After seeing

this incident, he ran away from the spot and informed Babu and subsequently also informed his brother Dhanushdhari. He has further stated that his

brother Munna had also tried to catch the appellant but he ran away from the spot. In his cross-examination, he has denied that on the day of incident

he was at Aparpatan Hostel.

PW-6 Munna had reached the spot immediately after hearing the cries of PW-2 Prakash, who had also seen appellant Ramnaresh running away

from the spot, his clothes were stained in blood. Thereafter, he left the spot to inform his brother PW-1 Dhanushdhari. Thus, so far as eye-witness

account is concerned, this Court finds that it has been duly corroborated by each other. In the FIR Ex.P/1 lodged at the instance of Dhanushdhari at

around 6:20 in the evening, it is clearly mentioned that he was informed by his cousin Munna that appellant Ramnaresh has murdered their sister

Sankhi. In the Dehati Nalishi also, presence of PW-2 Prakash is clearly mentioned on the spot by Dhanurdhari.

PW-10 Madan, who is a witness to the recovery of axe, has been declared hostile and has stated that Ex.P/10- memo under Section 27 of the

Evidence Act, Ex.P/11- property seizure memo and Ex.P/12-arrest memo were not prepared at the instance of the appellant, however, he has

admitted his signature on the memos. It is a trite law that even if the seizure witness has been declared hostile, in  the presence ofÂ

other incriminating material available on record, it cannot be said that this can be the sole ground to acquit the appellant and to hold that he has

nothing to do with the offence. This aspect of the matter has also been considered by the Apex Court in the case of Birendra Rai v. State of Bihar,

(2005) 9 SCC 719, para 12 of the same reads as under:-

“12. Learned counsel also doubted the truthfulness of the prosecution case as regards the place of occurrence. It was submitted that if several

shots were fired, some pellets would have been found at the place of occurrence. It is the case of the prosecution that no pellets were found. For this

reason alone we cannot discard the case of the prosecution. If pellets were found at the place of occurrence it would have further strengthened the

case of the prosecution, but in the absence of such evidence one has to rely upon the ocular evidence which if found reliable, may be acted upon.

Unfortunately, in this case, despite the efforts of the prosecution the investigating officer could not be examined as a witness. The seizure witness has

also been declared hostile. There is really no corroborative evidence, except the circumstantial evidence, to corroborate the version given by the

witnesses. However, we find the eyewitnesses to be straightforward and reliable. Being rustic villagers there is no effort on their part to improve the

case of the prosecution on the basis of imaginary facts. They have deposed in a straightforward manner, and there is a ring of truth in their testimony.

We find them to be implicitly reliable.â€​

(emphasis supplied)

The contention raised by the counsel for the appellant that PW-2 Prakash aged 12 years cannot be relied upon is also fallacious as his presence on

the spot is duly proved by not only the Ex.P/1 Dehati Nalishi but also in the deposition of other two witnesses viz. PW-11 Dhanusdhari, PW-66 Munna

Rawat, who had reached the spot immediately after the incident. Applying the aforesaid dictum Birendra Rai (supra) this Court finds the testimonies

of all the aforesaid witnesses to be trustworthy and genuine and hence admissible in evidence.

Similarly, PW-7 Ramkali has also supported the prosecution story and has stated that soon after the incident appellant met her and also told her

that he has committed the murder of Sankhi. Although this evidence is of extra judicial nature and PW-7 Ramkali is also an interested witness as the

deceased was her niece, but looking to the fact that the appellant also knew her and it is consistent with the prosecution story, it cannot be said that

this extra judicial confession can be discarded. Reference may be had to the decision rendered by the Apex court in the case of Sahib Hussain v.

State of Rajasthan, (2013) 9 SCC 778 : (2014) 1 SCC (Cri) 115, para 15 of the same reads as under:-

“15. The prosecution heavily relied on the extra-judicial confession. The extra-judicial confession, though a weak type of evidence, can form the

basis for conviction if the confession made by the accused is voluntary, true and trustworthy. In other words, if it inspires the confidence, it can be

acted upon. We have already noted that the ap-pellant-accused mentioned the details of the in-cident to Satish (PW 4) and the courts below ac-cepted

his version as reliable and trustworthy. Ms Archana, learned counsel for the State took us through the entire evidence of Satish (PW 4) and on going

through the same, we are satisfied that his evidence is reliable, acceptable and inspires our confidence. We have already noted that the evidence of

PW 4 supports the stand taken by PW

It is also on record that PW 4 was the friend of the appellant-accused and they were residing in the same area. In those circumstances, the con-

fession made by the appellant to PW 4 can be ac-ted upon along with other material evidence.

(emphasis supplied)

So far as the contention raised by the learned counsel for the appellant that the learned Judge of the trial Court has although found that the Axe

was not recovered at the instance of the appellant however erred in holding that since this question has not been put to the Investigating Officer VD

Pandey (PW-11) that no clothes were recovered at the instance of the appellant, hence it should be held that the clothes were actually recovered is

concerned, this Court does not find any substance in the contention as this Court not only concurs with the finding of the trial court regarding the

recovery of blood stained clothes but so far as recovery of axe is concerned, the finding as recorded by the trial court needs a relook.re-look. The trial

court has held that since the seizure witness Pw/W-10 Madan has been declared hostile and it does not appear normal that soon after the incident,

while running, the appellant would have found time to hide the Axe behind the house of the deceased hence even if the investigating officer has

supported the seizure memo, it should not be taken into account, but in the considered opinion of the Court the said finding is erroneous as the trial

court has not taken into account the fact that the place from where the axe was recovered was open as has been deposed by investigating officer

PW-11 V.D.Pandeya in para 12 of his court statement, in such circumstances, it is equally possible that the appellant must have hide the axe while he

was running from the spot as none of the eye witnesses viz. Pw/W-6 Munna and PW-7 Ramkali have seen him running from the spot with axe in his

hand and PW-2 Prakash has also stated that soon after the assault on Sahnkhi, he also fled from the spot which means that he had no occasion to see

if the appellant had hide the axe behind the house before running from the spot, thus, these aspects of the matter has not been taken into consideration

by the trail Trial cCourt and the finding in this regard is erroueous. The learned jJudgeJudge of the lower court has also not taken into account the FSL

report proved as Ex.P/16 in which it is mentioned that the human blood was also present on the axe as in the case of appellant’s clothes. In these

cirmustancescircumstances, it is held that the axe was also recoverdrecovered at the instance of the appellant as has also been deposed by the

investigating officer pw/PW-11 V.D. Pandey. Regard may be had to the decision of the apex court in the case of Modan Singh v. State of Rajasthan,

(1978) 4 SCC 435, para 9 of the same reads as under :

“9. The only other material on which the pro-secution can connect the appellant with the crime is the recovery of the fired cartridge, Ex. 9 and the

seizure of the pistol Ex. 8 and the de-position of the Ballistic expert, PW 9. It is found that the witnesses who have been examined for attesting the

seizure have not supported the prosecution version. On behalf of the defence it was submitted that the seizure witnesses were men of status in the

village and their not sup-porting the recovery would be fatal to the pro-secution. We would rather not place any reli-ance on the witnesses who

attested the seizure memo. If the evidence of the investigating of-ficer who recovered the material objects is con-vincing, the evidence as to recovery

need not be rejected on the ground that seizure wit-nesses do not support the prosecution version.â€​

(emphasis supplied)

So far as the defence of the appellant that he was not present on the spot at village Umari and had gone to gram Amarpatan to repair the

punctured tyre of the tractor and returned at around 6 pm in the evening is concerned, he has not examined the owner of the shop where he got the

tyre repaired and secondly, even PW-2 Prakash and PW-6 Munna have clearly deposed that the appellant did go to Amarpatan but had returned

before the incident.

Now coming to the question of conviction under Section 302 of IPC, the contention of the learned counsel for the appellant is that looking to the

injury he can be convicted under Section 304 part I or II of IPC. In the considered opinion of this Court, the contention is fallacious as the appellant

has assaulted an unsuspecting, poor girl aged 17 years, without provocation, in a cold blooded manner by causing injuries with axe and that too on her

neck. In view of the same the judgment relied upon in the case of Arun (supra) is distinguishable as in that case there was altercation between the

parties and the incident took place at the spur of the moment which was not the case in the case at hand.

As a result, this Court is of the considered opinion that no illegality or jurisdictional error has been committed by the trial Court in convicting the

appellant under Section 302 of the IPC and as such the impugned order 28.10.2009 is hereby confirmed as aforesaid and the appeal being devoid of

merit is hereby dismissed.