Gyasilal vs State of M.P.

Accused-appellant Gyasilal has, in this appeal, called in question the legality and correctness of the judgment of conviction and the order of

sentence dated 30.07.2008 passed by the Additional Sessions Judge Pichhor, Sessions Division Shivpuri in Sessions Trial No.57/2007, whereby

he has been held guilty of fraticide and convicted under Section 302 of the IPC and sentenced thereunder to suffer rigorous imprisonment for life

and to pay a fine of Rs.2,000/- (two thousand) in default of payment of fine to further undergo rigorous imprisonment for six months.

The prosecution case as unfolded in the course of trial, in brief, is as under:-

(2.1) On 05.01.2007 at about 7:45 am, complainant Aparbal (PW-4) accompanied by Balkishan (PW-5), Durga Prasad (PW-2), Nathuram

(PW-6) and Damodar (PW-1) made an oral FIR to Assistant Sub-Inspector A.P. Pandey (PW-8) at Police Outpost Himmatpur of Police Station

Pichhor district Shivpuri stating that his agricultural farm is at the periphery of village Gochoni. Close to his farm, there is a Kotha, comprising many

rooms, in which Ramniwas (since deceased), accused Gyasilal and Damodar (PW-1), who are the brothers, live with their families and parents

Lalaram (PW-7) and Ratibai (PW-2). On the night between 04.01.2007 and 05.01.2007, he was sleeping in his farm. At about 4:00 am, Ravudi

(PW- 3), the wife of Damodar, came to his farm and told him that accused Gyasilal/her Devar, is assaulting deceased Ramniwas/her Jeth in the

latter residence. Thereupon, he went with her to the residence of Ramniwas. There, he saw accused Gyasilal threshing deceased Ramniwas in one

of the rooms of his residence closing the door of it from the inside. He called accused Gyasilal to open the door of the room but he did not

respond. Thereupon, he made an attempt to open the door by applying physical force. Seeing that, accused Gyasilal opened the door. In the light

of lantern, he saw deceased Ramniwas lying in a pool of blood. He also noticed that his guts had come out of his body and several bloody incised

injuries on his person. A.P. Pandey reduced his oral FIR into writing being Ex.P-5 and registered a case against accused Gyasilal under Section

302 IPC. Later, the FIR, being Ex.P-11, is registered at Crime No.04/2007 in Police Station Pichhor by Head Constable Rambakhs (PW-9) on

05.01.2007 at about 9:05 pm.

(2.2) G.P. Shakya (PW-14), the SHO of Police Station Pichhor, took up the investigation in the case. On 05.01.2007, he reached the place of

occurrence and prepared a spot map Ex.P-2 at the instance of Damodar. He also held the inquest proceedings in the presence of the witnesses

and prepared an inquest report of the dead body of deceased Ramniwas being Ex.P-1. He also seized the articles from the place of occurrence

vide seizure memo Ex.P-6 in the presence of Durga Prassad and complainant Aparbal. Thereafter, he sent the dead body of deceased Ramniwas

to the Community Health Centre Pichhor for autopsy. There, on 05.01.2007, Dr. J.P. Karothiya (PW-15) conducted post-mortem examination

and gave post-mortem report Ex.P-19. He opined that deceased Ramniwas died of syncope and haemorrhagic shock due to multiple incised

injuries and fractures in the skull. Thus, deceased Ramniwas suffered a homicidal death.

(2.3) On 05.01.2007, G.P. Shakya arrested accused Gyasilal vide arrest memo Ex.P-16 in the presence of Vishal Singh (PW-12) and Balkishan

(PW-5) and interrogated him in their presence and prepared his disclosure statement Ex.P-7. On the basis thereof, he seized one blood stained

axe vide seizure memo Ex.P-9 at his instance. He also seized his wearing blood stained clothes vide seizure memo Ex.P-8 in the presence of the

aforesaid witnesses. On the various dates he also recorded the the case diary statements of the witnesses who are acquainted with the facts of the

case. He sent all the articles collected in the course of the investigation for forensic examinations to the Regional Forensic Laboratory Gwalior,

which sent report Ex.P-20.

(2.4) On conclusion of the investigation, the police filed a charge-sheet against accused Gyasilal for being prosecuted under Section 302 IPC.

(2.5) After completion of the procedural formalities of the Cr.P.C., the case came to be registered as Sessions Trial No.57/2007 and it was made

over to the Additional Sessions Judge Pichhor for trial.

The learned ASJ framed a charge against accused Gyasilal under Section 302 IPC. He denied the charge and prayed for trial. Thereupon, he

was put on trial. In the examination under Section 313 Cr.P.C., he had denied all the incriminating evidence and circumstances which are on

record against him. His defence was, simpliciter, false implication on the ground that his brothers wanted to usurp his properties, therefore, he is

falsely implicated in the murder of deceased Ramniwas. However, he did not adduce in his defence any evidence either oral or documentary.

Having analyzed and appreciated evidence on record in the impugned judgment, the learned ASJ has held accused Gyasilal guilty for committing

murder of deceased Ramniwas and convicted him under Section 302 IPC and sentenced thereunder as noted in para 1 of this judgment. Being

aggrieved by the impugned judgment, accused Gyasilal filed the jail appeal under Section 383 Cr.P.C.

We heard at length arguments exchanged by the learned counsel for the parties.

Learned counsel for the accused-appellant contended that the author of FIR Ex.P-5 Aparbal (PW-4), Ratibai (PW-2), Lalaram (PW-7) and

Radhabai (PW-11) are the main prosecution witnesses. They have been declared hostile by the prosecution. Thus, the prosecution case has been

dented to a great extent for the said reason. He further contended that it has come in the evidence of main prosecution witnesses that accused

Gyasilal used to behave like a man of unsound mind, therefore, he had not committed an offence of murder of deceased Ramniwas in view of the

provisions of Section 84 IPC. Upon these contentions, he submitted that the impugned judgment suffers from factual and legal infirmities.

Therefore, the conviction of accused Gyasilal under Section 302 IPC is bad in law and it is liable to be set aside with acquittal of accused Gyasilal

of the charge under Section 302 IPC.

In reply, learned counsel for the respondent/State submitted that it is true that the author of FIR Ex.P-5 Aparbal has not supported the

prosecution case in the examination-in-chief. But, when the prosecution has cross-examined him as per the provisions of Section 145 of the Indian

Evidence Act, he supported the prosecution case in material particulars and admitted that FIR Ex.P-5 is recorded upon his dictation. He further

submitted that Ratibai (PW-2) and Lalaram (PW-7) have been partially declared hostile by the prosecution and that they have supported the

prosecution case in material particulars. He further submitted that Radhabai (PW-11), the wife of accused Gyasilal, has also supported the

prosecution case to some extent after being declared hostile and cross-examined by the prosecution. He further submitted that Damodar (PW-1)

and Ravudi (PW-3) have fully supported the prosecution case and there is nothing in their cross-examination to disbelieve their evidence. He

further submitted that some prosecution witnesses have deposed in their cross-examination that the behaviour of accused Gyasilal was ""eccentric

but they have not stated that he committed the murder of deceased Ramniwas ""in the state of unsoundness of mind"". On the other hand, it has been

come in the ocular evidence and the medical evidence that accused Gyasilal inflicted as many as 20 incised injuries on the vital parts of deceased

Ramniwas having gone to his residence in the wee hours and having closed the door from inside of the room. Thus, it was a case of cold-blooded

murder of deceased Ramniwas by accused Gyasilal. Upon these submissions, he prayed that this appeal is devoid of merits and substance,

therefore, it be dismissed upholding the impugned judgment.

We have considered in earnest the arguments raised by learned counsel for the parties at the Bar and perused the impugned judgment and all the

material on record.

The first point for our consideration is whether accused Gyasilal was in the state of unsoundness of mind at the time of commission of the murder

of deceased Ramniwas?

Upon the perusal of the record of the trial Court, we find that accused Gyasilal was arrested on the day time that followed the night of incident

i.e. 05.01.2007 at about 2:00 pm vide arrest memo Ex.P-16 by the Investigating Officer G.P. Shakya (PW-14). Thereafter, he sent accused

Gyasilal for medical examination with Head Constable Rajendra Sharma (not examined) to the Community Health Centre Pichhorre, where Dr.

J.P. Karothiya (PW-15) had medically examined him. He has deposed in para 5 of his cross-examination that at the time of medical examination of

accused Gyasilal, he found him mentally fit having denied the suggestion of the defence that he was at that time unsound mind. Accused Gyasilal

produced before the Court of Jurisdictional Magistrate on 06.01.2007. Thereafter, the learned JMFC sent him in judicial custody. On 28.03.2007

the learned JMFC passed the committal order under Section 209 Cr.P.C. directing the police to keep accused Gyasilal present before the Court

of Second Additional Sessions Judge Pichhore on 10. 04.2007. We have meticulously perused the proceedings of each and every date of hearing

of Jurisdictional Magistrate Court and we find that the defence had never filed an application under Section 328 of the Cr.P.C. claiming that

accused Gyasilal is a person of unsound mind or lunatic. As per record, the Jail Superintendent of Sub-jail Pichhore district Shivpuri wrote a letter

dated 04.03.2007 to the Jail Superintendent Central Jail Gwalior requesting him that accused Gyasilal is being transferred to the Central Jail

Gwalior for being examined by a psychiatrist of the Gwalior Mansik Arogya Shala. The Superintendent of Sub-jail Pichhore sent a copy of the

letter to the Jurisdictional Magistrate for information. As per the report of the psychiatrist, accused Gyasilal is suffering from depression. In our

considered opinion, accused Gyasilal had gone into depression because his conscience would gnaw him that he is guilty of fraticide. We find that

on 28.12.2007 an application was made before the learned trial Judge by the defence counsel stating that in the course of conversation with

accused Gyasilal, he found him mentally unfit. Therefore, he be sent for medical examination to Mansik Arogya Shala Gwalior. Learned ASJ

allowed the application. Thereafter, accused Gyasilal was transferred from Subjail Pichhore to Central Jail Gwalior for the medical examination by

a psychiatrist of the Mansik Arogya Shala Gwalior. The psychiatrist submitted three reports with intervals of few months to the trial Court through

the Jail Superintendent Gwalior. In his first report, he stated that accused Gyasilal is not able to defend himself in the Court of law. However, he

has been showing signs of improvements upon giving medicines. In the second report, he stated that accused Gyasilal is showing improvements but

not fit for discharge. In the third and last report, he stated that accused Gyasilal is mentally fit to defend himself in the Court of law and fit for

discharge. Upon the perusal of the order sheets of various dates of hearing of the trial Court, we find that the learned trial Judge stayed the

proceedings of the case till the receiving of last report from the psychiatrist. Thus, the learned ASJ had followed the provisions of Sections 329 to

331 Cr.P.C. to the letter. Upon the perusal of the evidence appearing in the crossexamination of main prosecution witnesses namely Damodar

(PW-1), Ratibai (PW-2), Ravudi (PW-3), Aparbal (PW-4), Balkishan (PW-5) and Lalaram (PW-7), we find that they have deposed that the

behaviour of accused Gyasilal was like a person of unsound mind after the commission of the alleged offence, but they have not categorically stated

that accused Gyasilal was a man of unsound mind or lunatic before and at the time of commission of the alleged offence. Moreover, there is no

documentary evidence on record in this respect. Investigating Officer G.P. Shakya in para 14 of his crossexamination has categorically stated that

in the course of investigation he had not found any sort of evidence that the behaviour of accused Gyasilal was like a madman. Thus, we hold on

the basis of the aforesaid analysis of evidence on record that at the relevant time of murder of deceased Ramniwas, by accused Gyasilal, he was a

man of sound mind.

The second point for our consideration is whether deceased Ramniwas suffered a homicidal death? It is stated in this regard that learned

counsel for accused Gyasilal has not challenged the finding of the learned trial Judge that deceased Ramniwas suffered a homicidal death before us

in the course of arguments even remotely. Dr. J.P. Karothiya (PW-15) performed the autopsy on the dead body of deceased Ramniwas on

05.01.2007. As per his evidence, deceased Ramniwas had sustained as many as 20 ante-mortem incised injuries, a few of them caused multiple

fractures in his skull. He has opined that deceased Ramniwas died of syncope and haemorrhagic shock due to multiple incised injuries and

fractures in the skull. Thus, he died of homicidal death. He proved post-mortem report Ex.P-9. Upon the perusal of the evidence of this witness as

a whole, we find that the defence has not impeached the credibility of this witness even obliquely. Thus, there is no reason to disbelieve his

evidence. Consequently, we hold that the nature of death of deceased Ramniwas was absolutely homicidal.

The third and last point for our consideration is whether accused Gyasilal had murdered deceased Ramniwas?

Aparbal (PW-4) is the author of FIR Ex.P-5 of the incident. He has stated in para 2 of his examination-inchief that he has no knowledge who

had murdered deceased Ramniwas, and he has not lodged FIR Ex.P-5 at Police Out Post Himmatpur of Police Station Pichhore. He has stated

that he had only seen the dead body of deceased Ramniwas in a pool of blood with injuries in one of the rooms of his residence. In his presence,

the police prepared an inquest report Ex.P-1 and seized various articles from the place of occurrence vide seizure memo Ex.P-6. In view of the

aforesaid statement of this witness, the prosecution declared him partial hostile and cross-examined him as per the provisions of Section 145 of the

Evidence Act. In the course of which, the prosecution confronted him with the contents of FIR Ex.P-5. Thereupon, he has admitted in paras 5 and

6 the full narration of the incident recorded in FIR Ex.P-5. He has also admitted that he had gone to Police Out Post Himmatpur to lodge the

report of the incident with Damodar (PW-1), Nathuram (PW-6) and Durgaprasad (PW-2). He has also admitted that the writer of the F.I.R. had

recorded the FIR upon his dictation. From the aforesaid evidence, we hold that this witness has stated falsely in his examination-in-chief that he has

no knowledge who had murdered deceased Ramniwas. Upon the perusal of the cross-examination of this witness by the defence, we find that

there is nothing to disbelieve the aforesaid evidence appearing in the cross-examination being done by the prosecution.

Ravudi (PW-3) has deposed that accused Gyasilal and deceased Ramniwas are her Devar and Jeth respectively. In the small hours of the night

of incident at about 4:00 am, she had heard the loud shrikes coming from the residence of deceased Ramniwas. Thereupon, she went to his

residence and found that deceased Ramniwas was being beaten by accused Gyasilal in a room closing the door from inside. Seeing that she went

running to the farm of Aparbal (PW-4) and reported the incident to him. Thereupon, he came with her to the residence of deceased Ramniwas. He

asked accused Gyasilal to open the door, but he did not respond. Some time later, accused Gyasilal opened the door, and he fled away.

Thereafter, she brought lantern and in the pool of light of it they saw deceased Ramniwas dead. She has also deposed that accused Gyasilal

committed murder of deceased Ramniwas with an axe and at the time of murder of deceased Ramniwas, his wife had gone to the well to draw

water. Some time later, her mother-in-law Ratibail (PW-2) came to the place of crime. Upon the meticulous perusal of the cross-examination of

this witness, we find that there is nothing in his crossexamination to disbelieve her evidence. Thus, there is uniformity in the evidence given by her

and that of Aparbal in material particulars, which lends credence to the prosecution story as narrated in FIR Ex.P-5.

Damodar (PW-1) is the husband of Ravudi (PW-3) and the brother of accused Gyasilal and deceased Ramniwas. He has deposed that in the

night of incident, he was sleeping in his agricultural farm. One Dinesh told him that something happened in his Kotha. Thereupon, he went there,

and he found the dead body of deceased Ramniwas in a pool of blood in one of the rooms of his residence. He has also deposed that he had gone

to the Police Outpost Himmatpur with Aparbal (PW-4) and two other persons, and Aparbal lodged the FIR. He has also proved that the police

prepared a spot map Ex.P-2 at his instance and the police held the inquest proceedings Ex.P-1. This witness in para 4 of his cross-examination has

empathetically denied the suggestions given by the defence that accused Gyasilal is mentally weak and for about 5 years prior to the incident, his

activities were like a madman. Upon the perusal of the cross-examination of this witness, we find that he has stood by his evidence appearing in his

examination-in-chief. Therefore, we place full reliance upon his evidence.

Nathuram (PW-6) has testified that he had gone with Aparbal (PW-4) and others to the police station, where Aparbal had lodged the report

of the incident.

Ratibai (PW-2) is the mother of deceased Ramniwas, accused Gyasilal and Damodar. She has deposed that she and her husband with the

family of her three sons live in the Kotha. In the night of the incident, her husband Lalaram (PW-7) was sleeping in their farm. While sleeping in her

residence, she had heard shrikes coming out from the residence of deceased Ramniwas. Thereupon, she went there. She heard loud voices of

deceased Ramniwas and accused Gyasilal emanating from a room which was closed from inside. She made an attempt to open the door of the

room but could not do so. Thereupon, she went towards village to inform villagers. When, she came back, she saw Aparbal (PW- 4.) there. She

also saw the dead body of deceased Ramniwas in the room and accused Gyasilal sitting outside of the room. Since this witness has not fully

supported the prosecution case, as per her case diary statement Ex.P-3, the prosecution declared her hostile. On being confronted by the case

diary statement, she has admitted that she had gone to the place of occurrence upon the loud cries of her daughter-in-law Ravudi (PW-3), and she

brought Aparbal (PW-4) to the place of occurrence. When accused Gyasilal opened the door, she was present there. She also saw the dead body

of deceased Ramniwas in the room. We find that the defence has cross-examined her in brief. In her cross-examination, there is nothing to

disbelieve her evidence. Thus, we place reliance upon her aforestated evidence which supports the proseuction case largely.

S.P. Pandey (PW-8) is the writer of FIR Ex.P-5. He has stated that upon the dictation of Aparbal, he truly recorded the FIR.

Lalaram (PW-17), the father of accused Gyasilal and deceased Ramniwas, and Radhabai (PW-11), the wife of accused Gyasilal, have not

supported the prosecution case. Thereupon, they have been declared hostile by the prosecution. On being cross-examined by the prosecution,

Lalaram has not supported the prosecution case except the fact that he had seen the dead body of deceased Ramniwas in his residence. It is easily

understandable that he has not supported the prosecution case because his one son is an accused of the case and another son is the victim of the

case. He has already lost one son deceased Ramniwas in the incident and if he supports the prosecution case, then his another son accused

Gyasilal will be convicted and sentenced by the Court for the murder of deceased Ramniwas. In the circumstance, his denial of the prosecution in

his evidence does not make any difference because the prosecution case is proved by the other witnesses. On being cross-examined, Radhabai

has admitted that in the night of incident at about 10:00 pm, she slept with her husband/accused Gyasilal in her residence and thereafter he had

gone towards the residence of deceased Ramniwas. At about 4:00 am, she heard shrikes of deceased Ramniwas. Thereupon, she went to his

residence, the door of one of the rooms was closed from inside. In the meantime, his mother-in-law Ratibai (PW-2), Jethani Ravudi (PW-3) and

Aparbal (PW-4) had come. They got the door of the room opened. Her husband/ accused Gyasilal came out of the room with blood stained

clothes. In the room, he saw deceased Ramniwas dead. Thus, she has supported the prosecution case in the course of crossexamination by the

prosecution. Since Ravudi (PW-3) and Damodar (PW-1) have fully supported the prosecution case, the said evidence appearing in

crossexamination of Radhabai is acceptable.

In the case of Khujji alias Surendra Tiwari Vs. State of M.P., AIR 1991 SC 1853, the Supreme Court held that the evidence of a hostile

witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his/her version is found to be

dependable on a careful scrutiny thereof. A division Bench of this High Court in the case of Shambhusingh and others Vs .State of M.P., 2007(4)

MPHT 203, held on the basis of a catena of decision of the Supreme Court that the conviction can be based on the testimony of a hostile witness if

corroborated by other reliable evidence.

True it is that Aparbal (PW-4) is a main prosecution witness because he reached the scene of crime first in time upon the information of Ravudi

(PW-3). There, he noticed that deceased Ramniwas was being assaulted by accused Gyasilal having confined him by the latter in one of the rooms

of his residence, and he lodged FIR Ex.P-5 of the incident. Although he has not supported the prosecution case in his examination-in-chief, he has

not only accepted the prosecution story but also admitted that the FIR Ex.P-5 is recorded upon his dictation when he was subjected to cross-

examination by the prosecution and he was confronted to the contents of the FIR. His evidence is corroborated by the evidence of Ravudi (PW-

3), Damodar (PW-1) Ratibai (PW-2)and Nathuram (PW-6) in material particulars and in parital by the evidence of Radhabai (PW-11).

Therefore, we place reliance upon the evidence of Aparbal appearing in the cross-examination done by the prosecution in the light of aforestated

authorities.

The evidence of G.P. Shakya (PW-14), the Investigating Officer of the case, is worthy of consideration in respect of seizure of the articles in

the case. He has testified that from the place of occurrence, he seized blood-stained articles as per the seizure memo Ex.P-6 in the presence of

Aparbal (PW-4) and Durgadas (PW-13). Both the witnesses have corroborated the evidence of him on this point. He has further testified that on

05.01.2007, the day that followed the night of incident, he arrested accused Gyasilal vide seizure memo Ex.P-16 in the presence of Balkishan

(PW-5) and Vishal Singh (PW-12) and seized his wearing clothes having blood stains in large numbers vide seizure memo Ex.P-18 and he

interrogated accused Gyasilal in their presence. He had given the information regarding the seizure of an axe which was allegedly used by him in the

commission of murder of deceased Ramniwas. Thereupon, he prepared disclosure statement Ex.P-7. Later, he seized an axe at his instance in the

presence of the aforesaid witnesses from behind the gunny begs which were kept in the room, the place of occurrence, vide seizure memo Ex.P-9.

Both the said witnesses have not corroborated that part of his evidence. But, they have admitted their signatures on the seizure memos and

disclosure statement. There is nothing in the cross-examination to discredit the aforestated evidence of G.P. Shakya. Therefore, we place full

reliance upon his evidence. G.P. Shakya has further testified that he had sent the seized articles and other articles for the forensic examinations to

the Forensic Science Laboratory Gwalior, wherefrom he received report Ex.P-20. Upon the perusal of report Ex.P-20, we find that on the seized

axe and wearing clothes of accused Gyasilal, stains of human blood were detected. However, the blood group could not be determined because of

disintegration of blood stains and inconclusive test results. Accused Gyasilal has not explained away as to why stains of human blood were present

of his clothes which he was wearing at the time of being arrested. Thus, the report of FSL may be used as a supportive evidence, which connects

accused Gyasilal with the murder of deceased Ramniwas.

No explanation has been given by accused Gyasilal directly or indirectly as to why he had killed his brother deceased Ramniwas?

Upon the cumulative evidence of the aforestated prosecution witnesses, we hold that accused Gyasilal entered the residence of deceased

Ramniwas in the wee hours of night of incident. Thereafter, he closed the door of the room, the place of occurrence, of his residence from inside

and inflicted axe blows from it sharp edge as many as 20 times in view of the number of injuries sustained by him as per the evidence of Dr. J.P.

Karothiya (PW-15). As such, accused Gyasilal is coldblooded killer of his brother deceased Ramniwas. Ravudi (PW-3) and Radhabai (PW-11)

in their crossexamination have admitted that accused Gyasilal would doubt that his wife/Radhabai had illicit relations with deceased Ramniwas.

Thus, the motive behind the murder of deceased Ramniwas by accused Gyasilal is also writ large. Resultantly, we hold that the prosecution has

successfully proved beyond all reasonable doubts that accused Gyasilal had murdered his brother deceased Ramniwas.

In view of the foregoing critical scrutiny and analysis of evidence on record, we do not find any factual or legal infirmities in the impugned

judgment warranting our interference therewith. Consequently, we dismiss this appeal being devoid of merits and substance upholding the

impugned judgment of conviction and order of sentence.

Accordingly, this appeal is finally disposed of.