Lal Singh vs State Of Madhya Pradesh

This is an appeal preferred against the judgment and order passed by

the Madhya Pradesh High Court dismissing the appeal of the appellant and

maintaining the sentence of imprisonment for life under Section 302 IPC

as awarded by the First Additional Sessions Judge, Alirajpur in Sessions

Trial No.381/95.

The prosecution story is that on 11.2.1994 some time in the morning

the deceased Magan, a boy aged 19 years went to the house of Lal Singh

and started climbing upon his Tadi tree. Lal Singh accosted him abusively

asking him as to why he had climbed upon his Tadi tree. Magan got

down and went to the house of Lal Singh where Lal Singh pressed his

neck and was tying rope around the neck of Magan when the PW-1

Gauri arrived who raised alarm saying that Lal Singh had killed her

brother. She lodged a report at Police Post, Umrali, Police Station

Somdawa. The police completed the investigation and submitted the

charge-sheet. The rope was also recovered from the house of Lal Singh

during the course of investigation by the police. The post mortem

examination on the dead body was also conducted by PW-5 Dr. Jai

Prakash Joshi

In support of the prosecution case two eye witnesses namely, Gauri,

the sister of the deceased and her brother PW-2 Jagla were examined.

PW-3 Kemtiya @ Kemla was examined to prove the factum of death of

Magan but he turned hostile. PW-4 Moti Ram Kher is the investigation

officer and PW-5 is Dr. Jai Prakash Joshi who had conducted the post

mortem examination. PW-6 B.S. Kadam is the other Investigation Officer

and PW-7 Rakesh Kumar Misra is the Head Constable who had registered

the case. The appellant also examined two defence witnesses.

PW-1 Gauri who is the elder sister of the deceased stated that the

house of Lal Singh is near to her house. Magan was a student of class 9th.

On the fateful day Lal Singh and Magan had returned at about day break

from Umrali where they had gone to see Gata . Magan came to the house

but later started following Lal Singh. PW-1 was outside of her house and

saw that Magan started climbing on Tadi tree of Lal Singh which was

objected to by Lal Singh. Since Magan had to go to School in Sondawa,

PW-1 went to the house of Lal Singh to call Magan but she saw Lal Singh

pressing neck of Magan and tying a rope around his neck. She raised an

alarm. Lal Singh was all alone at his house, he ran away. Her alarm

attracted PW-2 Jagla, PW-3, Kemta. She told them about the incident and

thereafter she went to lodge the report.

PW-2 Jagla supported the statement of PW-1 Gauri stating that

when he reached the house of Lal Singh on the alarm raised by PW-1

Gauri, he saw Magan lying in the verandah of the house of Lal Singh. His

feet were then moving a little. His sister Gauri was also present there at

that time. A rope was also tied around the neck of Magan who died a little

later. He further stated that on arrival at the spot, Gauri had told him that

Lal Singh had pressed the neck of Magan. So far PW-3 Kemta is

concerned, he turned hostile. He stated that he had seen the dead body of

Magan lying outside the house of Lal Singh. He did not enquire from

anyone as to how he died. He also stated that Gauri had not told anything

about the death of Magan to him. In cross-examination by the prosecution

he denied having made the statement to the police or having given other

details to police.

So far as the place of occurrence is concerned, no dispute in

regard to the same has been raised nor any argument on behalf of the

appellant in this regard made nor the fact that the dead body was found

lying in the house of Lal Singh. To a specific question put to the learned

counsel for the appellant in this regard, he submitted that Magan seem to

have committed suicide at the house of Lal Singh mainly for the reason, as

according to the defence case his father has scolded him about his studies.

We feel that it is a strong circumstance which is not disputed that the dead

body of Magan was lying in the house of Lal Singh which supports the

prosecution case as disclosed in the FIR and the statements of PWs 1 and

2 PW-3 Kemta has tried to make some deviation by saying that it was

lying outside the house of Lal Singh. He has not denied the presence of

PW-1 Gauri at the spot but has only said that he was not told anything

about the incident by Gauri. It is true, as pointed out by the learned

counsel for the appellant that PW-3 Kemta has turned hostile yet we find

that to some extent it lends support to the prosecution story. In so far the

other two eye-witnesses are concerned, learned counsel for the appellant

has taken us through their cross-examination to show that there are some

contradictions in their statements. We however find that they are more

omissions rather than contradiction with the statement recorded by the

police during investigation. Mostly they relate to immaterial and

insignificant details. To illustrate the omission which has been brought out

in the statement of PW-1 Gauri they are that she had told in her statement

before the police that her brother was studying in 9th class and before the

incident he had gone with Lal Singh to watch Gata to Umrali, but these

facts do not find place in the report lodged with the police by her. Suffice

it to observe that it was not necessary to mention these things in the FIR. It

is then indicated that in her statement it was not mentioned that she was

standing outside her house. In our opinion such minor things or omission

do not materially affect the case of the prosecution. Some contradictions

here and there are quite natural. A reading of the statements of the

witnesses in totality, does not indicate that they vary in any manner on

any of the material facts.

Learned counsel for the appellant has then submitted that the medical

report does not support the prosecution case and in that connection he has

referred to the statement of Dr. Jai Prakash Joshi, PW-5. He has stated

that legature marks were present on the left side of the neck of the

deceased. It was one and a half inch in length Apart from the said injury

there was no other external injury on the body of the deceased. It is

further stated by him that on close examination of the legature marks it

was found that the sub tetanius tissue were found thin like paper and the

blood arteries situated beneath it were congested. Our attention has also

been drawn to the statement where he has said that he could not definitely

say whether the deceased died due to suicide, homicide or due to

accidental cause. He however stated during cross-examination that if neck

is pressed by hand then the nail prints should also appear on the neck.

There was no nail print on the neck of the deceased. To a suggestion made

he also stated that if suicide is committed by hanging there will be

suffocation. He then indicates some of the symptoms of the suicide. Later

in the cross-examination he has said that definite cause of death cannot be

ascertained. We fail to understand as to in what manner the statement of

the doctor placed before us supports the theory of suicide as canvassed by

the learned counsel for the appellant. It is highly improbable nor does it

appeal to the reason that Magan will go to the house of Lal Singh to hang

himself to commit suicide, as seems to be the suggestion on behalf of the

appellant It is thus imaginary exercise on the part of the defence to have

advanced such an argument on the strength of a sentence here and there in

the statement of the doctor. So far the cause of death is concerned it can

best be ascertained from the post-mortem report which clearly indicates

that death was caused due to asphyxia. We do not find any substance in

the submission made on behalf of the appellant. The doctor seems to be

replying to the questions as put to him during his examination and cross-

examination. It is difficult to understand as to how he could say in cross-

examination that it was difficult to ascertain the definite cause of death

having already indicated it in the post-mortem report as asphyxia.

Learned counsel for the appellant then submitted that the High

Court has very cursorily dealt with the matter in an appeal against a life

sentence in a murder case. It is true that the High Court is a court of appeal

on facts as well while dealing with criminal appeals. It would have been

certainly better if the High Court had dealt with the matter a bit more

elaborately but we find that it is not a fit case to be remanded to the High

Court, as prayed. In support of the above plea learned counsel for the

appellant has also placed reliance upon a decision in Rama and others

versus State of Rajasthan (2002) 4 S..C.C. 571. But the position in the

present case seems to be different. The High Court took note of the facts

of the case and also noted the witnesses who were examined on behalf of

the prosecution and the defence as well. It has been observed that the

statement of PW-1 Gauri the eye witness was corroborated by the FIR as

well as by the medical evidence. It has also made some comments on

merits as well though very briefly no doubt but at the same time it cannot

be said that the High Court has failed to notice the merits of the case. In

the case of Rama and others (supra) it appears that the High Court as

indicated only observed that on re-appreciation of the evidence and re-

scrutiny of the records the Court did not find any error apparent in the

findings of the trial court. In our view in such circumstances the case

deserved to be remanded as has been done but in the case in hand the

position is different. More elaborate discussion would have been

undoubtedly desirable but it is not a case where the Court has not noticed

the material points of the case. It was aware of the merits of the matter

while passing the order. Hence, we do not find any good reason to accede

to the request made for remand of the case to the High Court more so when

we have also considered the points raised on behalf of the appellant on

merits..

Learned counsel for the respondent State referred to a decision

reported in (1999) 9 S. C. C. 507 – Sukhar versus State of U.P., on the

point about the relevance of the statement made by an eye witness soon

after the incident. Learned counsel for the State has drawn our attention to

the statement of PW-2 Jagla where he has denied the suggestion made on

behalf of the defence that Magan was scolded by the father or that he had

committed suicide.

In view of the discussion held above, we find no merit in the appeal.

It is accordingly dismissed.