Vishan Singh Yadav vs State Of Madhya Pradesh

Ashok Kumar Joshi,J

By this appeal filed under Section 374 of the CrPC, appellant Vishan Singh Yadav has challenged the conviction recorded by First Additional Sessions

Judge, Guna vide judgment dated 17.3.2005 passed in Sessions Trial No.298/2003, whereby he has been convicted under Section 302 of the IPC and

sentenced to life imprisonment with a fine of Rs.500/- and in default of payment of fine, to suffer additional three months RI.

Undisputedly, deceased Shishupal and appellant are real brothers and sons of Barelal (PW-9) and Achal Bai (PW-8). Above mentioned parents

were having four sons, amongst which appellant is second son and deceased Shishupal was their third son. Complainant Bakelal (PW-1) is elder

brother of Barelal (PW-9) and it is also undisputed that some years ago Barelal had divided all his agricultural lands between his sons and 10-12 bighas

agricultural land had fallen in share of his each son.

Prosecution's case in brief is that complainant Bakelal Yadav (PW-1), a resident of village Kusman, lodged FIR (Ex.P/1) at 12=25 hours at Police

Station Aron regarding incident occurred on same date at 9.00 am to the effect that at 9.00 am when he was at his house, village boy Kailash (PW-3)

intimated him that in agricultural land a quarrel is occurring between Shishupal and Vishan and Vishan is assaulting with a farsa to Shishupal.

Complainant Bakelal (PW-1) took his brother Barelal (PW-9), Parmal Singh (PW-2), Ranveer and other persons of village with him and reached to

relating agricultural land and found that in between the boundary (Maidh) of Shishupal and appellant's land, Shishupal was lying on land and his face

was towards the land and there were appearing injuries caused by farsa over his back and blood has spread nearby. Complainant and other persons

on checking found that Shishupal had died. There was enmity regarding partition of the family's property between Shishupal and Vishan and about

four years ago, a quarrel had occurred in reference to which on report of each party cross-cases were arisen and due to this enmity Vishan fled away

after murdering Shishupal. After putting dead body on tractor and trolley of Parmal Singh, complainant reached to Police Station Aron and lodged

report, which was scribed by SHO Raghvendra Singh Tomar (PW-16).

At the same time separately merg report (Ex.P/7) was recorded and inquest memo (Ex.P/2) was prepared by above mentioned SHO and

thereafter dead body of Shishupal was sent to Community Health Centre (CHC) Aron, where on the date of incident Dr. K.K.Shrivastava (PW-11)

started post-mortem at 2=00 pm and recorded post-mortem report (Ex.P/9).

On the date of incident Investigating Officer Raghvendra Singh Tomar (PW-16) prepared spot map (Ex.P/13) and seized blood stained soil and

plain soil vide seizure memo (Ex.P/14). During investigation appellant Vishan Singh was arrested on 22.9.2003 vide arrest memo (Ex.P/12). On

22.9.2003, on the basis of disclosure (Ex.P/10) of appellant and on producing an iron farsa fixed in bamboo stick from his house and appellant's blue

colour shirt and towel were seized vide seizure memo (Ex.P/11). Clothes were sent in a sealed packet by doctor, who conducted autopsy of dead

body and seized material by Investigating Officer were sent to FSL Sagar with a covering letter (Ex.P/16) issued by SP Guna. Later on, FSL Sagar's

report (Ex.P/17 and P/18) were received. After completing formalities of the investigation, charge sheet was filed in the Court of JMFC Aron, who

committed arisen criminal case to Sessions Court and Sessions Judge transferred the relating sessions trial to First Additional Sessions Judge, Guna.

Appellant abjured the guilt. Sixteen prosecution witnesses were examined before the trial Court. It was defence of the appellant that he has been

falsely implicated only on the basis of suspicion. No any defence witness was examined by appellant. After hearing, trial Court convicted the appellant

with the charged offence and sentenced as aforesaid.

Shri A.K.Jain, learned counsel for the appellant vehemently contended that Kailash (PW-3), who was sole eye-witness according to prosecution's

case was declared hostile as he deposed that he saw only verbal altercation between the appellant and deceased and had not seen beating by farsa

and according to their police statements, parents of deceased and appellant were not eye-witnesses, therefore, the trial Court erred in convicting the

appellant in absence of any eye-witness to the incident. It is also argued by learned counsel for the appellant that according to FSL Sagar's report (Ex.

P/17) even blood was not found on allegedly recovered farsa and on shirt and towel of the appellant, therefore, there was no circumstantial evidence

against the appellant, which could connect him with the murder of his brother. Hence, it is prayed that appeal be allowed and appellant be acquitted.

Alternatively, it is also argued that as free fight occurred between two brothers, at the most appellant could be convicted only under Section 304 Part-

II of the IPC.

Per Contra, appearing Public Prosecutor on behalf of the respondent/State supporting the impugned judgment contends that the trial Court has

legally analyzed and appreciated the entire evidence available on record and did not commit any error in convicting the appellant for the charged

offence. It was also argued that in view of the total number of incised wounds found on dead body of Shishupal and as he was not having any weapon

at the time of incident, alternative argument advanced by the appellant's counsel could not be accepted. 9. It is clear from the evidence of Dr. K.K.

Shrivastava (PW-11) and his post-mortem report (Ex.P/9) that on the date of incident, at 2=18 pm on starting autopsy he found following anti-mortem

injuries on dead body of the deceased :-

(i) An incised wound on upper portion of right arm, size 3x3 cm deep up to bone, beneath which right humerus bone had fractured;

(ii) An incised wound on upper portion of left arm, size 3-1/2x1/2x3 cm deep up to bone;

(iii) An incised wound in middle of the right scapula over back, size 51/2x3cmxdeep up to bone, beneath which scapula bone had fractured;

(iv) A parallel incised wound to abovementioned injury No. (iii) size 4-1/2x3 cm deep up to bone;

(v) An incised wound on back portionof lower side of neck size 8x4 cm deep up to bone;

(vi) An incised wound just below theabove mentioned injury no. (v), size 3x3-1/2 cm deep up to bone;

(vii) An incised wound on rightshoulder size 3x2x2 cm.

Dr. Shrivastava (PW-11) opined that all the incised wounds were caused by hard and cutting weapon within 24 hours and he sealed in a packet

the clothes worn by the deceased having bloodstains and sent to relating Police Station through Constable and in his opinion, Shishupal died due to

shock because of extensive bleeding from all the anti-mortem injuries within 24 hours from his starting of post-mortem and the mode of death was

homicidal and he also opined that all the injuries were jointly sufficient in ordinary course of nature to cause death.

It is also clear from the evidence of Kailash (PW-3) that within few minutes from starting of incident the deceased died on spot. Hence, it was

proved beyond reasonable doubt that Shishupal met with a homicidal death. Â

Complainant Bakelal (PW-1), Parmal Singh (PW2), Barelal (PW-9) deposed that in the morning of date of incident, they were intimated by

Kailash (PW-3) at their houses that Vishan and Shishupal are mutually quarreling in the field. Parmal Singh (PW2) deposed that Sarpanch Musab

Singh and Patel Bhagwan Singh were also informed by Kailash. Kailash (PW-3) deposed that on the date of incident, in morning at about 9 am when

he was grazing his buffaloes, then he saw that appellant Vishan and deceased Shishupal were hurling abuses to each other, then he went in the village

and intimated Sarpanch Musab Singh (PW-13) and Patel Bhagwan Singh, but Kailash deposed that he heard and saw only wordy altercation and did

not see any beating, but in next breath he deposed that it came to know that appellant killed Shishupal then with Sarpanch and Patel he came back to

spot and saw that Shishupal's dead body was lying in a trolley attached to a tractor and on his back, there were injuries but in examination-in-chief

Kailash deposed that he did not see any weapon in hand of appellant at the time of incident.

Kailash (PW-3) was declared hostile by prosecution, thereafter he reiterated that when both brothers were hurling abuses, then they were not

near each other but he deposed that he saw the dead body of Shishupal lying in the field of Shaitan and blood on spot but he admitted that within one

hour from his seeing wordy altercation between brothers, Shishupal had died. As pointed earlier, much emphasis has been given by the appellant's

counsel on the evidence of Kailash that he did not see any weapon in appellant's hand and had not seen any beating.

Complainant Bakelal (PW-1) deposed that Kailash had intimated him that Vishan and Shishupal were mutually quarreling and when he reached on

spot, then Shishupal had died, but he deposed that Shishupal was killed by appellant by farsa. Bakelal (PW-1) proved his signatures on FIR (Ex.P/1),

inquest memo (Ex.P/2) and Safina Form (Ex.P/3). Parmal Singh (PW-2) deposed that at his house Kailash informed that he saw that appellant Vishan

was running after Shishupal having a farsa. Virendra Singh (PW-5) and Man Singh (PW-6) are panch witnesses of inquest memo (Ex.P/2) and

deposed that they saw dead body of Shishupal, but Man Singh also deposed that he was informed by complainant Bakelal that the appellant had killed

Shishupal. It is clear from the evidence of Vimlesh Bai (Ex.P/7), wife of the deceased, that at the time of incident she was at her parent's house and

was telephonically informed by others regarding incident and thereafter came to village Kusman.

Barelal (PW-9), father of deceased and appellant deposed that Vishan was residing separately from his family about six years prior to the incident

and he had divided his agricultural land between sons, but later on Shishupal had sown soyabin's crop in adjoining purchased land by him and on the

date of incident the appellant was grazing his buffaloes in that purchased land by Shishupal, hence dispute occurred. He deposed that on the date of

incident, after receiving intimation regarding quarrel, he ran towards spot and saw from a distance of 1 to 1-1/2 bighas that Vishan was assaulting

Shishupal with farsa and he saw appellant's giving farsa blows to deceased from a distance of about 150 feet, but when he reached on spot, he found

that Shishupal had died and thereafter he became unconscious. Achal Bai (PW8), mother of the deceased and appellant deposed that on the date of

incident when Shishupal went to his field, he found that the appellant was grazing his buffaloes in Shishupal's land and on this point quarrel occurred

and after receiving information from village children regarding above mentioned quarrel he ran over towards relating field and from a distance of about

10 to 12 feet she saw that appellant Vishan was cutting Shishupal by his farsa like wood is cut. It is clear from the evidence of parents of deceased

and appellant that they deposed before the trial Court as eye-witnesses seeing the appellant inflicting farsa blows to Shishupal, but these facts are

missing in their relating police statements (Ex. D/5 and D/4) respectively. Investigating Officer Raghvendra Singh Tomar (PW16) also deposed in his

cross-examination that these facts were not stated to him at the time of recording of above mentioned police statements of parents of deceased and

appellant. Hence, it is argued by learned counsel for the appellant that the parents of the deceased and appellant have improved their evidence in

comparison to their police statement to establish themselves as eye-witnesses but there is no contradiction or discrepancy in the evidence of above

mentioned prosecution witnesses that Kailash (PW-3) has timely intimated many persons regarding occurring of quarrel in the agricultural land

between Shishupal and appellant and complainant Bakelal (PW-1) and Parmal Singh (PW-2) have also deposed that just after receiving information

proceeded towards the place of occurrence. In such situation, the evidence of parents of appellant and deceased regarding their reaching on spot after

running could not be termed as unnatural or unreliable. Some other important facts also reveal from the evidence of above mentioned parents.

Achal Bai (PW-8) deposed in cross-examination that about four years ago, appellant lodged a FIR against her husband Barelal and her other sons

Shishupal, Nepal and Shivraj regarding beating and due to this report her husband with above mentioned three sons were tried before Aron Court. She

also deposed that about six years ago the appellant has voluntarily separated him from father and other brothers and after being separated the

appellant used to wander with farsa for killing Shishupal.

Even if it is presumed that parents of appellant and deceased did not see appellant's giving farsa blows to Shishupal, in that situation also some

circumstances are appearing indicating guilt of the appellant. As deceased Shishupal was last seen on scene of occurrence with appellant by Kailash

(PW3) about one hour prior to the death of injured Shishupal and Shishupal's dead body was lying on relating agricultural land, where Kailash had seen

them making wordy altercation. Even the conduct of hostile declared witness Kailash (PW-3) was corroborated by above mentioned other witnesses

that Kailash informed them in village regarding quarrel or dispute occurring at relating field between brothers and from Kailash (PW-3)'s evidence

wordy altercation just prior to the death of deceased Shishupal is established.

It is also proved by some other witnesses including Investigating Officer Raghvendra Singh Tomar that they saw farsa injuries on dead body, lying

on the spot. All these well-established circumstances, pointed towards only one inevitable inference that the appellant murdered his brother. In this

reference conduct of the appellant is also an important circumstance indicating his guilty conscious. It is clearly mentioned in the FIR (Ex.P/1) that

appellant had fled away from the spot. It is clear from the evidence of Investigating Officer Raghvendra Singh (PW-16) that appellant Vishan could

be arrested only on 22.9.2003, whereas his real brother died in morning of 18.9.2003. Appellant's above mentioned conduct also provides an important

corroboration to above mentioned other circumstances. In this reference it would also be significant to mention here that in crossexamination of

Investigation Officer Raghvendra Singh (PW-16), in para 9, it was suggested to Investigating Officer by defence counsel of appellant that on

22.9.2003 appellant Vishan Singh was produced by his Uncle-in-law Kalyan Singh at Police Station, though Investigating Officer clearly denied this

suggestion but such trend of cross-examination on behalf of appellant also provides corroboration to evidence of complainant and other witnesses that

just after the incident appellant fled away. Â

It is true that the relating panch witnesses regarding seizure of an axe from the appellant's house, namely, Musab Singh (PW-13) and Bhagwan

Singh (PW-14) have not supported the evidence of Investigating Officer Raghvendra Singh Tomar (PW16) regarding the alleged disclosure statement

(Ex.P/10) but both these panch witnesses of arrest memo (Ex.P/12), disclosure statement (Ex.P/10) and seizure memo (Ex.P/11) deposed that in their

presence appellant Vishan Singh had taken out a farsa from his house which was seized by the Investigating Officer vide seizure memo (Ex.P/11).

Both these panch witnesses deposed that appellant had taken out farsa from husk of wheat crop kept within his house. Though it is true that relating

FSL report (Ex.P/17) is not indicating presence of blood on seized farsa and seized shirt and towel of appellant, but it is clear from the evidence of

other witnesses that just after the incident farsa injuries were appearing on the dead body of Shishupal.

Hence, this fact is also corroborated by medical evidence.

According to another FSL Sagar's report (Ex.P/18) in laboratory by same farsa some specimen cuts were caused on clothes of deceased sent to

laboratory and these specimen test cuts made in the laboratory were having resemblance with cut marks already existing on T-Shirt and sando

baniyan of the deceased sent to the laboratory.

In our considered opinion, the trial Court has minutely analyzed and appreciated the entire evidence available on record and did not commit any

error in holding that the appellant caused death of his real brother Shishupal.

So far as the alternative argument advanced by learned counsel for the appellant is concerned, Kailash (PW-3) has deposed that only wordy

altercation and hurling abuses were occurring between both the brothers who were standing at some distance from each other. There is no evidence

that at that time deceased was having any weapon. Even it is not the defence of the appellant that he received any injury on the date of incident. In

such situation, the alternative argument advanced by learned counsel for the appellant does not appear to be acceptable. It is clear from the nature of

injuries and their depth and internal damage and repetition of blows from a sharp cutting object is indicative of the fact that the appellant was having

an intention to murder his brother Shishupal. Appellant's learned counsel has referred to Exception No.4 provided under Section 300 of the IPC but it

is clear from evidence that at the time of incident the deceased was not having any weapon, hence it could not be inferred that the appellant has not

taken any undue advantage or has not acted in a cruel or unusual manner. At the time of grazing buffaloes, keeping a farsa, a sharp cutting weapon,

could not be termed as usual or uncruel manner. In our considered opinion, the alternative argument advanced by appellant's counsel is not having any

merit. It is clear that the appellant's appeal is devoid of any substance. [Cases of Santosh Singh vs. State of Punjab (AIR 2009 SC 1923); Prabhu vs.

State of UP (AIR 1991 SC 1069); and Kikar Singh vs. State of Rajasthan (AIR 1993 SC 2426) followed].

Consequently, the appeal filed by the appellant against his above mentioned conviction and sentence as recorded by the above mentioned trial

Court is dismissed and his above mentioned conviction and sentence are affirmed. Presently the appellant is serving out his sentence, though

previously his jail sentence was suspended by this Court. The appellant be intimated with the result of this appeal through relating Jail Superintendent.

The trial Court's order regarding disposal of seized property is also affirmed.

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