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Judgment
This appeal has been filed by the accused-appellant being aggrieved by the judgment dated 7.1.1995 passed by Additional Sessions Judge, Katni in Session Trial No.548/93, whereby the appellant has been convicted for offences punishable under Sections 302 / 34 and 201 of the Indian Penal Code and has been sentenced to undergo RI for life and RI for 3 years respectively.
Brief facts of the prosecution case are that the appellant was serving with deceased Baba Govind Shah at Gurudwara Camp, Madhavnagar, Katni. He was frustrated because Baba Govind Shah (since deceased) was holding the important post in Gurudwara, even though he was junior to the appellant. It was alleged that the deceased was habitually dominated the appellant and his younger brother Guddu (juvenile). On 24.11.1992 at about 6.30 PM Baba Govind Shah was killed by appellant and his younger brother Guddu by inflicting fatal blows by sharp cutting weapons on the vital part of the body of Baba Govind
Shah. After killing him, the appellant burnt his body and left the spot. Kumar Das reported the incident to the Police Station, Tikuri District Katni. Hence, FIR was lodged against the appellant under Section 302 of IPC. After completion of investigation, a charge sheet was filed before the concerned Court. The case was committed to the trial Court.
The learned trial Court held the appellant guilty for committing murder of Baba Govind Shah with the help of his younger brother Guddu (juvenile) and convicted him under Sections 302 and 201 of IPC and sentenced him as mentioned above.
The appellant challenged the findings of the learned trial Court on the grounds that the learned trial Court has wrongly held him guilty for the aforesaid offences. There is no direct evidence available against him. Merely recovery of saw (aari) is not sufficient to connect the appellant with the alleged offence. He has no motive to commit the said crime. He has been falsely implicated by some influential persons of the community, hence he prayed to set aside the impugned judgment and acquitted him from the charges levelled against him.
Heard the arguments of learned counsel for the appellant at length. Perused the record.
Learned GA opposed the above contentions.
It is not in dispute that appellant and his younger brother Guddu were serving and residing with the deceased Baba Govind Shah at Gurudwara Madhavnagar, Sindhi Camp, Katni. Kumar Das (PW1), Thouram (PW6), Vasudeo (PW8) and other witnesses deposed that the appellant was senior to deceased Baba Govind Shah, he was annoyed with Baba Govind Shah. Because after ignoring him, Baba Govind Shah got higher position (Gaddi) whereas appellant was entitled for the said Gaddi.
It is on record that Dhannu @ Narendra (PW7) was also serving at Gurudwara. On the date of incident at about 2.00 pm he was present at the Gurudwara with the appellant and his brother Guddu. The deceased was also present
there. At about 3.00 pm Guddu (brother of appellant) brought vegetable for the deceased. Then he was continuously knocking the door of the deceased's room.
Deceased came out from his room and gave 2-3 slaps to
him. Thereafter Dhannu @ Narendra went to his house.
According to him, the main entrance was locked by the appellant. At about 5.00 to 5.30 pm Antul Prakash came to his house and informed him that the room of the Govind Baba(deceased) has burnt.
Thouram (PW6) was also serving in the aforesaid Gurudwara. He has stated that on the date of incident in evening at about 4.45 to 5.00 PM the appellant Manoj came to his house. He wanted to talk with him in alone. The appellant informed him that the deceased used to beat his brother Guddu and abused him, therefore, they wanted to leave the Gurudwara. He also told to Thouram that the Baba would commit suicide, hence Thouram convinced the appellant and after sometime the appellant left the house of Thouram. Thereafter, Thouram heard that Baba Govind Shah has died.
Sudama Prasad (PW12) has deposed that he only saw the fire burning and at that time door of Baba Govind Das's room was closed. At about 7.00 pm police came to the spot.
At that time it was found that the neck of the deceased was cut by a sharp weapon and he sustained head injury. In cross-examination Sudama Prasad (PW12) admitted that he heard about the incident, which established that on the date of occurrence the appellant has expressing his annoyance to Thouram (PW6). On the same day Baba Govind Shah was killed and ablazed in his room. This fact has not been challenged by the learned counsel for the appellant in the cross-examination of the above witnesses.
Vishandas (PW13) is an important witness who was present on the Thouram's house. He corroborated the testimony of Thouram (PW6), which established the presence of the appellant at the house of Thouram at about 4.30 to 4.45 pm. Thereafter he heard about the incident. In Para 8 Kumar Das (PW1) also stated that at about 4.40 pm the appellant came to his house and informed him that he and his brother was severely beaten by Baba Govind Shah/deceased, therefore, they wanted to leave the Gurudwara. He also informed to Kumar Das that Babaji said to the appellant that he wanted to commit suicide and there would be a possibility that Baba has committed suicide. The conduct of the appellant just before the incident and after the incident is very relevant under under Sections 6 and 8 of Evidence Act. It establishes the motive of the appellant to commit crime with the deceased.
Lalchand (PW2) deposed that on the date of incident in the afternoon, the deceased Baba Govind Shah also expressed his dissatisfaction for the appellant and his brother Guddu.
On the same day he knew about the murder of deceased. He also confirmed the presence of the appellant and his brother Guddu at Gurudwara with Baba Govind Shah with regard to theory of "last seen together".
Kumar Das (PW1) was residing near Gurudwara. He has stated that on the date of incident at about 5.30 pm his son Antul Prakash came to him and informed that something happened with Babaji (deceased) and smoke was coming out from the room of Babaji. Then Kumar Das went to the spot and opened the door and he saw that body of Baba Govind Shah was burning and he died. Thereafter he informed the Police Station, Tikuri District Katni and FIR was lodged by him. In the FIR, he only informed the sudden death of Baba Govind Shah.
The police has investigated the matter and interrogated the appellant. After two days of the incident, the appellant gave memorandum to the police about weapon (aari). As per his memorandum, the police recovered aari ( Article-A ) as Ex.P3 shown in seizure memo. Similarly the memorandum given by Guddu (Juvenile) Police recovered a knife as seizure memo (Ex.P5) article-B.
Jhammatmal (PW5) and Kumar Das (PW1) corroborated the testimony of K.S. Shekhawat (PW15) Investigating Officer with regard to memorandum of appellant and seizure ExP3, ExP4, ExP9. From the corroboration of evidence of aforesaid witnesses, the statement of Investigating Officer, K.S. Sekhawat (PW15) is found trustworthy. It establishes that the aforesaid aari was used by the appellant for committing murder of the deceased. As per FSL report Ex.P21, which came after chemical examination, shows that blood stains were found on seized aari and knife
K.S. Sakhawat (PW15) explained the situation of the room of the deceased. On the date of incident, he found some burnt currency on the bed of the deceased and half burnt match box and clothes. He found a container containing 2 litre Petrol. The aforesaid circumstances and seizure of aari and knife also establishes the involvement of the appellant in the crime.
The appellant took defence that he is innocent. The trustees of Gurudwara had taken huge amount from the deceased, thus with the help of police those trustees have falsely implicated him. In this regard Danavmal (DW1), Sudama (DW2) and Madhavdas (DW3) were examined by the appellant. The testimony of the aforesaid witnesses indicates that the deceased was having bad habit, hence his placement on the Gaddy of Gurudwara not accepted by some persons. The deceased was killed by someone else.
The aforesaid defence version is not found reliable. It is not sufficient to rebut, the version of the prosecution witnesses against the appellant. At that time public was demanding CBI prob or other enquiry is not relevant with regard to challenge the testimony of prosecution witnesses.
The appellant not cross-examined the prosecution witnesses [Thouram (PW6) and Dhannu @ Narendra (PW7)] on the point that just before the incident, the appellant did not go to the house of Thouram and Thakur Das, to inform them about the rude behaviour of the deceased. Therefore, the testimony of the aforesaid witnesses is found unshakened. The appellant has not offered any explanation about the aforesaid conversation with Thouram (PW6) and Kumar Das (PW1). The appellant informed them that deceased Baba Govind Shah would commit suicide. These facts are also relevant under Section 6 and 8 of the Indian Evidence Act to establish the conduct and behaviour of the appellant before the incident, who planned to escape himself after making a story and scene as Govindshah himself committed suicide.
Similarly, the appellant failed to offer any reasonable explanation with regard to seizure of the incriminating article Aari. As per the FSL Report, blood stain was found on Aari and another weapon blood stained knife which was also seized on the memorandum of the brother of the appellant.
Incriminating article Aari which was seized with blood stain completes the chain of circumstances against the appellant. In the case of Mukesh Vs. NCT Delhi 2017 Cr.L.J. 4366 the Hon'ble Supreme Court has held as under :-
" Legislature while incorporating Section 27, as exception to Sections 24, 25 and 26 of the Evidence Act, was convinced of the quintessential purpose Section 27 would serve in an investigation process. Recovery made under Section 27 of the Evidence Act not only acts as the foundation stone for proceeding with an investigation, but also completes the chain of circumstances. Once recovery is proved by the prosecution, burden of proof on defence to rebut the same is very strict, which cannot be discharged merely by pointing at procedural irregularities in making the recoveries, especially when the recovery is corroborated by direct as well as circumstantial evidence, especially when Investigating Officer assures that failure in examining independent witness while making the recoveries was not a deliberate or mala fide, rather it was on account of exceptional circumstances attending the investigation process."
Thus, in the light of the above principle, we come to the conclusion that appellant caused death of Baba Govind Shah by sharp cutting object with the help of his younger brother. After committing murder of Baba Govind Shah, his body was set to fire to escape from the criminal liability. Dr. B.M. Upadhyay (PW4) conducted autopsy on 25.11.1992 at 9.00 am and found swelling over the neck and superficial burns over both the legs, thighs, perineum, chest, forearms, head, face, neck and back side of body. Dr. B.M. Upadhyay found the following injuries :-
(1) Incised wound 7cmx3cm muscle deep, below the chin, transversely oblique, margins having collected blood, edges were sharp.
(2) Incised wound 3cmx1.5cmxdeep bone spindle shape with in line with left nostril and left lobule of the ear, transversely placed in the left cheek area with clotted blood. (3) Incised wound 9cmx ? cmx1/4cm over the left cheek with clotted blood. (4) Incised wound 1cmx1/2cmx1/2cm deep below the lobule of left ear, wound with with clotted blood, placed transversely. (5) Incised wound 3cmx1/4cm skin deep over the left side of chin with clotted blood.
(6) Incised wound 10cmx1/4cmx1/4cm over anterior surface of neck with clotted blood. (7) Incised wound 9 cmx1/4cm skin deep smeared with clots of blood in the neck. (8) Contusion 11cmx7cm over skull on right temporal region. (9) 10 abrasion over front side of neck spread towards right shoulder. (10) So many small stab wounds were also found over the neck with clotted blood.
In internal examination of dead body, Dr. Upadhyay found that the Trachea was found to be breached partly below the thyroid cartilage. Cricoid cartilage was also fractured and spinal card was totally in cutting condition. He also found that bones of cervical vertebra were totally dislocated and ruptured.
After conducting the postmortem, Dr. Upadhyay opined that all the above injuries were caused by sharp and hard object and were ante-mortem in nature. All burn injuries were caused after the death of the deceased and he opined that bodily injuries were sufficient to cause death in normal course. Just after damage of trachea and cervical parts, Baba Govind Shah has died within 24 hours from the postmortem. Dr. Upadhyay thoroughly described all above injuries in the examination-in-chief and his testimony is still unrebutted. The medical evidence duly corroborated the prosecution case which establishes that the deceased was killed by the appellant and thereafter the appellant ablazed him by pouring petrol on him.
The appellant had motive to commit murder of Baba Govind Shah. He was annoyed with the deceased. He was present with the deceased alongwith his younger brother just before the incident. The appellant was senior to the deceased even then the deceased got Gaddi and became successor of Baba Narayan Shah and was holding the main seat of Gurudwara. At the time of incident, it was accepted by the appellant that he and his younger brother both were residing with deceased at Gurudwara in the same premises. The appellant has not taken the plea of alibi. The appellant also informed about aggression and misbehaviour of deceased with him and his brother. As they made an attempt to create a scene that the deceased himself committed suicide by burning himself.
After considering all the circumstances and the evidence, we are of the opinion that only the appellant is liable for the incident.
In view of the above, we do not find any inconsistency in the prosecution evidence which gives the benefit of doubt in favour of the appellants. Hence, learned trial Court has rightly convicted the appellant under Section 302 of IPC for committing the murder of Baba Govind Shah.
In view of foregoing, we do not find any reason to interfere in the impugned judgment. Accordingly, the appeal is hereby dismissed.
The appellant is on bail and his bail bond is cancelled and he is directed to surrender immediately before the trial Court to undergo the remaining sentence, failing which the trial Court shall take appropriate action under intimation to the Registry.
A copy of this judgment be sent to the trial Court for information and compliance alongwith its record immediately.