State Of M.P vs Pushpendra Kumar

This appeal has been filed by the appellant/State against judgment dated 6.11.2001, passed by Sessions Judge Shahdol in Sessions TrialÂ

No.124/2001 whereby the respondent has been acquitted from the offence punishable under Section 302/148 of IPC.

Brief facts of the prosecution case is that on 16.10.2000 at about 11.45 pm at old Basti, Shahdol near Bhura Kori's House at Kishan Tola, the

respondent and other accused persons armed with deadly weapons due to old enmity were assembled together and committed murder of Heera

Gupta. Vishwanath father of deceased lodged the FIR at police Station, Shahdol.

After investigation charge sheet was filed against the appellant and other accused under Sections 147, 148, 149/302 of IPC. 3. Respondent-

Pushpendra and other accused persons were charged for offence under Section 148 and 302 of IPC. Other accused persons were acquitted by the

same trial Court vide judgment dated 9.4.2002. The appellant has been acquitted by the impugned judgment on the ground that the prosecution has

failed to prove the charges against the respondent beyond the reasonable doubt. No independent witness has been examined by the prosecution.

Recovery of weapon from the respondent is not sufficient to hold him guilty for the crime.

The State challenging the aforesaid finding on the grounds that there are sufficient supporting evidence of the prosecution available on record,

the trial Court has erred in acquitting the respondent on the basis of minor contradiction in the testimony of prosecution witnesses, therefore, the

impugned judgment is liable to be set aside and the respondent be convicted for committing murder of the deceased.

Learned counsel for the respondent has placed reliance on Dulle Singh Vs. State [1999 (2) C.Cr.C 360], State of Rajasthan Vs. Teja Singh and

others (2001) 3 SCC 147, State of MP Vs. Nisar (2007) 5 SCC 658, Satya Narain Yadav Vs. Gajanand and another (2008) 16 SCC 609, Smt. Kamla

Bai Vs. Madanlal (2009) Criminal Law Journal 4176, Umedbhai Jadavbhai Vs. State of Gujarat (1978) 1 SCC 228, and submitted that the High Court

would not ordinarily interfere with the conclusion of trial Court. Ordinarily the High Court would give due importance to the opinion of Sessions Judge.

He further submitted that it is not enough for this Court to take a different view of the evidence. There is no substantial and compelling reasons for

holding that the trial Court was wrong in acquitting the respondent.

Heard learned counsel for the parties and perused the record.

This appeal has been filed under Section 378(3) of Cr.P.C. against the acquittal of the respondent. High Court has power to reverse the judgment

of acquittal in conviction.

It is necessary for this Court to re-appreciate the entire prosecution evidence. Dr.Pradeep Khare (PW4) conducted the autopsy of the deceased on

17.2.2000 at about 12.00 pm. He found six holes in the yellow underwear of the deceased at back side. The underwear was with blood stained. On

the pant of deceased, he found seven holes at different places. Similarly on his blue shirt, he found five holes at front side. All the clothes were with

blood stained. Dr.Pradeep Khare (PW4) found following injuries on the deceased :-

“1. Incised wound â€" size 10 cm x 2 cm x scalp deep horizontally over upper part of forehead.

Incised wound â€" size 13 cm x 3.0 cm x muscle bone deep fracture of front muscle bone brain meter seen coming out though it, horizontally placed

over lower part of forehead clotted blood seen.

Incised wound â€" horizontally placed over face along both eyes and nose cutting and depressing them underneeth wound completely with

depressed fracture of bones of orbit and nose, size 20 cm x 4 cm x muscle bone deep structures meshed up and not separately identifiable.

Incised wound â€" size 20 cm x 4 cm x muscle bone deep and the under lying bone is fractured placed horizontally over both molar region of fact

and middle 1/3rd of nose.

Incised wound â€" size 24 cm x 4 cm x muscle bone deep going into oral cavity and underlying bones are fractured and teeth of lower jaw are also

broken this wound is placed horizontally along this line over face.

Incised wound â€" placed horizontally over lower jaw over fact size 16 cm x 4 cm muscle bone deep and going deep into cavity tongue impartially

protruded out and bitten with teeth. These injuries no.1 to 6 are caused by sharp edged weapon over neck.

One penetrating stab wound size 1.5 cm x 0.5 cm x going deep into laryngeal cavity; semilunar in shape and is placed over front of neck over

thyroid cartilage. This wound is caused by sharp edged pointed object.

Stab wound over right forearm on it's middle 1/3rd part on it's dorso lateral surface, semilunar in shape, size 2.5 cm x 1.5 cm cutting muscle and

bone deep. Caused by sharp and edged pointed object.

Incised wound â€" placed horizontally over lateral aspect of lower 1/3rd of right thigh, size 4 cm x 1.5 cm x muscle deep. Caused by sharp edged

weapon.

Incised wound â€" spindle shaped over medical aspect of upper 1/3rd of right leg, size 5 cm x 2 cm x muscle bone deep. Caused by sharp edged

weapon.

Incised wound â€" Medical aspect of upper 1/3rd of right leg, 2.5 cm x 1.5 cm x muscle bone deep. Caused by sharp edged weapon.

Incised wound â€" placed over lateral aspect of lower 1/3rd of left leg size 2 cm x 0.5 cm x 2 cm (caused by sharp edged weapon).

Stab wound â€" size 3 cm x 1 cm x 9 cm deep placed over lateral surface of lower 1/3rd of left leg. Caused by sharp edged pointed object.

Incised wound â€" size 15 cm x 5 cm x muscle bone deep bare bones seen, placed over left knee anteriorly. Caused by sharp edged weapon.

Incised wound â€" placed obliquely over middle 1/3rd of left thigh, size 1.5 cm x 0.3 cm x 1.5 cm caused by sharp edged weapon.

Incised wound â€" size 1.5. cm x 0.3 cm x 1.5 cm placed over back of right thigh middle 1/3rd part and caused by sharp edged weapon.

Incised wound â€" size 2.5. cm x 1.0 cm x 2.5 cm placed over back of right thigh middle 1/3rd part and caused by sharp edged weapon.

Incised wound â€" size 1.5. cm x 0.5 cm x 1 cm placed over back of right thigh middle 1/3rd part and caused by sharp edged weapon.

Incised wound â€" size 1 cm x 0.3 cm x sub cut deep placed over back of left hip and caused by sharp edged weapon.

Incised wound â€" size 1 cm x 0.3 cm x sub cut deep placed over back of left hip and caused by sharp edged weapon.

Incised wound â€" placed over front of lower 1/3rd of left forearm, size 8 cm x 5.0 cm x muscle bone deep (exposed) caused by sharp edged

weapon.

Incised wound â€" Back of lower 1/3rd of left forearm, size 1.5 cm x 0.3 cm x 1.0 cm caused by sharp edged weapon.

Injuries over abdomen :-

Stab penetrating wound â€" placed over epigastric region size 2.5 cm x 1.0 cm 3.0 cm. Caused by sharp pointed pointed weapon.

Stab penetrating wound â€" placed over left hypochondrial region of abdomen, size 2.5 cm x 1.5 cm x 6 cm. Caused by sharp pointed pointed

weapon.

Incised wound â€" placed over 12th intercostal space on left side of abdomen size 1.5 cm x 0.5 cm x s.c. deep and is caused by sharp edged

weapon. Caused by sharp pointed pointed weapon.

Stab penetrating wound â€" placed over periumbilical region of abdomen, size 2.5 cm x 1.5 cm x going deep into abdominal cavity and intestinal

loop protruding through it. Caused by sharp pointed weapon.

Stab penetrating wound â€" size 1.5 cm x 0.5 cm x deep into abdomen.

Stab penetrating wound â€" size 1.5 cm x 0.5 cm x deep into abdomen cavity.

Stab penetrating wound â€" size 1.5 cm x 0.5 cm x deep into abdomen cavity.

Stab penetrating wound â€" size 2.5 cm x 1.0 cm x deep into abdomen cavity.

Stab penetrating wound â€" size 1.5 cm x 0.5 cm x deep into abdomen cavity.

Stab penetrating wound â€" size 1.0 cm x 0.5 cm x deep into abdomen cavity.

Stab penetrating wound â€" size 1 cm x 0.5 cm x deep into abdomen cavity.

Stab penetrating wound â€" size 2.5 cm x 1.5 cm x deep into abdomen cavity.

Wounds from 27 to 34 are placed in close approximity of each other imperiumbilical region of abdomen and are caused by sharp pointed weapon. â€​

Injury Nos. 26 to 34 were caused by pointed and sharp weapon as indicated in his report Ex.P9-A.

During internal examination of the deceased, Dr.Pradeep Khare found two incised wounds on his head due to that injuries, membrane of brain was

ruptured. Similarly frontal lobe also ruptured and came out from the frontonasal bone. Membrane of left lung was also ruptured. Penetrating wounds

were present in trachea and esophagus. Left lung and left chamber of heart were ruptured due to multiple injuries on the abdomen.

Dr.Pradeep Khare found 12 penetrating wounds on the abdomen, membrane of intestine, abdomen, large intestine and spleen and  ruptured

due to multiple penetrating wounds. As per the opinion of Dr.Pradeep Khare the deceased died due to coma and hemorrhage because he had

sustained multiple incised and pointed injuries. We are in agreement with the opinion of Dr.Pradeep Khare that all the injuries were sufficient to

cause death of deceased in ordinary course of nature and they were caused within 24 hours of the postmortem.

Learned counsel for the respondent has only challenged the testimony of Dr.Pradeep Khare for identification of the deceased. He deposed that

from the face of the deceased it was very difficult to identify him. The prosecution examined the father of deceased Vishwanath (PW1) and in the

postmortem report Dr.Pradeep Khare mentioned that the deceased was identified by his elder brother Daduram Gupta, therefore the contention of

learned counsel for the respondent cannot be accepted. Hence it is established that the deceased was brutally killed by pointed and sharp deadly

weapon. Numbers of injury and nature of injury particularly on the organs which were damaged by the aforesaid blows were vital parts of the body,

established the intention of accused/assailant who knowingly and intentionally caused the death of deceased in the aforesaid manner.

As per the prosecution case, Sanjay Yadav (PW8) and Manoj Kumar Soni (PW9) were the eye witnesses of the incident. Both have stated that

on the date of incident at about 9.15 pm they were accompanied with the deceased. They took ‘Gutka’ from the respondent shop. Manna Singh

was also present with them. Sanjay Yadav (PW8) and Manoj Kumar Soni (PW9)Â have further stated that the respondent came there with other

accused persons and they had old enmity with the deceased. Respondent-Pushpendra inflicted blows on the deceased by a weapon like a sword

and thereafter the respondent and other accused persons dragged him outside and thereafter the respondent and other accused persons ran away

from the spot.

Sanjay Yadav (PW8) and Manoj Kumar Soni (PW9) saw the injuries of the deceased. In cross-examination Manoj Kumar Soni (PW9) clearly

deposed that he and Sanjay Yadav both ran away from the spot. In cross-examination we do not find that their presence on the spot was unnatural

nor their testimony seems to be unreliable.

Vishwanath (PW1) father of the deceased corroborated their testimony that his son Heera went for outing with Manna Singh Bhadoria at about

11.45 pm. Manna and Hari Sendhia came to him and informed that Heera has been killed by Pushpendra, Ashok @ Lala, Raju, Chintu Dwivedi andÂ

Rajan Singh. He reached on the spot and saw that body was lying infront of Bhura Kori’s house. He also came to know that Sanjay Yadav and

wife of Bhura and Sattu witnessed the incident. He went to police station and lodged the FIR Ex.P1.

Vedia Bai (PW2), Rajkumar Gautam (PW3), Ashok Kumar Kori (PW6) all were turned hostile. Learned counsel for the respondent has submitted

that in such circumstances, the respondent cannot be convicted for offence under Section 302/148 of IPC. He further contended that except evidence

of eye witnesses Sanjay Yadav (PW8) and Manoj Kumar Soni (PW9), there is no evidence available on record. So many contradiction and omission

are present in their testimony. Hence, it is not proper to convict the respondent on the basis of their testimony. But we do not find any material

contradiction and omission in their testimony. In case of Madhu alias Madhuranatha & Anr. Vs. State of Karnataka[AIR 2014 SC 394] Hon’ble

Supreme Court has held as under :-

“Police witness. Evidence of police personnel were made recovery witnesses- Their evidence is reliable and cannot be discarded even through larg

number of people were available.

A witness is normally considered to be independent unless he springs from sources which are likely to be tained and this usually means that the said

witness has cause to bear such enmity against the accused so as to implicated him falsely. In view of the above, there can be no prohibition to the

effect that a policeman cannot be a witness or that his deposition can not be relied upon if it inspires confidence.â€​

In case of Sheo Swarup Vs. King Emperor[1934 SCC Online PC 42 : AIR 1934 PC 227, Nur Mohd. Vs. King Emperor [ 1945 SCC Online PC

28 : AIR 1945 PC 151 these two decisions have been consistently referred for the true scope of power of an appellate Court in hearing criminal

appeals.

Girja Prasad v. State of M.P. [(2007) 7 SCC 625 it has been observed that :

“ In an appeal against acquittal the appellate court has every power to reappreciate, review and reconsider the evidence as a whole before it. The

Court further stated that it is, no doubt, true that there is a presumption of innocence in favour of the accused and that presumption is reinforced by an

order of acquittal recorded by the trial court, but that is not the end of the matter, for it is for the appellate court to keep in view the relevant principles

of law, to reappreciate and reweigh the evidence as a whole and to come to its own conclusion in accord with the principles of criminal

jurisprudence.â€​

Similarly in case of Chandrappa Vs. State of Karnataka [(2007) 4 SCC 415] Hon’ble Supreme Court culled out the general principles

regarding powers of the appellate court while dealing with an appeal against an order of acquittal. The said principles are enumerated below:-

“(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The

Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it

may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, ‘substantial andcompelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’,

‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate court in an appeal against

acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasise the reluctance of an appellate court to interfere

with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind thatin case of acquittal, there is double presumption in favour of the accused. Firstly, the

presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be

innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence

is further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on thebasis of the evidence on record, the appellate court should not disturb the finding of acquittal

recorded by the trial court.â€​

After following the aforesaid principle in recent judgment of Hon’ble Supreme Court in the case of Pawan Kumar Vs. State of H.P. [(2017) 7

SCC 780Â has observed in para 15 as under :-

“….The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all

acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating

crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt

which runs through the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive

solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma. Only reasonable

doubts belong to the accused. Otherwise any practical system of justice will then break down and lose credibility with the community. The evil of

acquitting a guilty person light heartedly as a learned Author[12] has sapiently observed, goes much beyond the simple fact that just one guilty person

has gone unpunished. If unmerited acquittals become general, they tend to lead to a cynical disregard of the law, and this in turn leads to a public

demand for harsher legal presumptions against indicted “persons†and more severe punishment of those who are found guilty. Thus, too frequent

acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say,

with Viscount Simon, that “a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent .…â€

In short, our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and

realistic.â€​ [emphasis supplied]

Keeping in view the principles laid down in the aforesaidauthorities, we shall scan the approach of the learned trial Judge and scrutinize the

correctness of deliberation of the trial Court and adjudge the ultimate reversal of the judgment of the trial court. In our considered opinion the trial

court gave more importance to minor contradictions and omissions which are not sufficient to affect the main prosecution version. The ocular

evidence is duly corroborated by the medical evidence. FIR has been lodged promptly at police station. Even though the panch witnesses supported

the testimony of R.N. Tiwari (PW10), but we are not inclined to disbelieve his testimony. He performed his official duly impartially. He has no

personal enmity or grudge with the respondent to implicate him in the crime. We cannot ignore that at present, generally independent witnesses tried to

escape themselves away from any criminal proceedings. Due to fear or influence of the criminals they want to save themselves to keep mum. This

present scenario has also been considered by the Apex Court in the case of Ramesh and others vs. State of Haryana (2017) 1 SCC 529, wherein it

has been held that :-

“Law on the admissibility of the dying declarations is well settled. In Jai Karan v. State of N.C.T., Delhi (1999) 8 SCC 161, the Supreme Court

explained that a dying declaration is admissible in evidence on the principle of necessity and can form the basis of conviction if it is found to be

reliable. In order that a dying declaration may form the sole basis for conviction without the need for independent corroboration it must be shown that

the person making it had the opportunity of identifying the person implicated and is thoroughly reliable and free from blemish. If, in the facts and

circumstances of the case, it is found that the maker of the statement was in a fit state of mind and had voluntarily made the statement on the basis of

personal knowledge without being influenced by others and the court on strict scrutiny finds it to be reliable, there is no rule of law or even of

prudence that such a reliable piece of evidence cannot be acted upon unless it is corroborated. A dying declaration is an independent piece of

evidence like any other piece of evidence, neither extra strong or weak, and can be acted upon without corroboration if it is found to be otherwise true

and reliable.

Therefore, without any sufficient and genuine reason, we cannot brush aside the testimony of R.N. Tiwari (PW10). He clearly established that on the

memorandum Ex.P7 of the respondent he recovered a knife from the respondent which was used by him for causing the death of the deceased.

In case of “Anjan Das Gupta Vs. State of West Bengal and others 2017 Cr.L.J. 529 SCâ€, the Supreme Court has held that and it is well

settled law that:-

“If order of acquittal has been made on improper and erroneous appreciation of evidence, can be set aside by the appellate Court.â€​

 16. In cases of “Bhagwan Jagannath Markad Vs. State of Maharashtra, 2017 Cri.L.J. 578 (SC) and “Mrinal Das Vs. State of Tripura, AIR

2011 SC 3753â€​, it is held by the Apex Court that:-

“It is the duty of the appellate Court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the

judgment of acquittal. If the order is clearly unreasonable, it is a compelling reason for interference. When the trial Court has ignored the evidence or

misread the material evidence or has ignored, the appellate Court is competent to reverse the decision of the trial Court depending on the materials

placed.â€​

 17. In case of C. Ronald and Anr. Vs. State of U.T. Of Andaman & Nicobar, 2012 Cri.L.J. 672, it is held that:-

“There is no restriction on the powers of the appellate Court to convert an order of acquittal into a conviction.â€​

Therefore, on the above discussions and in the light of above principles and also considering the facts and circumstances of the case, we are of the

considered opinion that in the present case, the testimonies of the prosecution evidence are wholly reliable. The respondent is liable to be convicted

under Sections 302 and 324 of the Indian Penal Code. Hence, we are of the considered view that the learned trial Court has wrongly appreciated the

prosecution evidence on record in improper and erroneous way and acquitted the respondent from the charges levelled against him. The testimonies of

the prosecution witnesses as discussed above are wholly reliable. We find that the respondent had committed murder murder of the deceased Gaflu

and inflicted injuries to his son by hard and sharp weapon, therefore, the impugned judgment is liable to be set aside and is hereby set aside. The

respondent is convicted for offence under Section 302 of the IPC. He is awarded sentence of RI for life with fine of Rs.500/-. In case of default of

payment of fine amount the appellant shall further undergo rigorous imprisonment for two months. He is also convicted for offence under

Section 324 of the IPC and sentenced to undergo RI for one year with fine of Rs. 2000/-.

In case of default of payment of fine amount the appellant shall further undergo rigorous imprisonment for six months. Both the sentences shall run

concurrently. Accordingly, the appeal filed by the State is allowed.

Respondent-Pushpendra Kumar is on bail. His bail bonds are cancelled and he is directed to surrender before the concerned trial Court within

15 days to undergo the jail sentence, failing which the trial Court shall take appropriate action against aforesaid respondent for suffering the jail

sentence.

A copy of this judgment be sent to the trial Court forinformation and compliance alongwith the record immediately.