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CASE NO.: Appeal (crl.)  222 of 2003

PETITIONER: Lal Singh                                                        

RESPONDENT: Vs. State of Madhya Pradesh          

DATE OF JUDGMENT: 11/08/2003

BENCH: Brijesh Kumar & Arun Kumar.

JUDGMENT: JUDGMENT

Brijesh Kumar, J.

       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

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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

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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 â\200\223 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.