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Madhya Pradesh High Court · body

2002 DIGILAW 296 (MP)

Mangalia v. State of M. P.

2002-03-11

N.G.KARAMBELKAR, S.P.SRIVASTAVA

body2002
Judgment ( 1. ) THIS order shall dispose the aforesaid two appeals, which arise out of Sessions Trial No. 225 of 1990. Learned Sessions Judge, Guna vide judgment dated 6-12-1991 convicted appellant under Section 302, Indian Penal Code, and sentenced him to rigorous imprisonment for life. However, learned Trial Court has acquitted the accused of the charge under Section 376, Indian Penal Code. Appellant-Mangalia has in his appeal challenged his conviction under Section 302, Indian Penal Code, whereas the State on its part in appeal has challenged accused Mangalias acquittal for charge under Section 376, Indian Penal Code. ( 2. ) THE accused/appellant-Mangalia was tried on two charges-- firstly, for offence under Section 302, Indian Penal Code, for having committed murder of Prabhulal son of Tulsiram, resident of Semra Ka Har, in the intervening night of 1st and 2nd July, 1990 in the house of the deceased; and secondly, at about same time, date and place he had committed sexual intercourse with Khuslobai, w/o deceased Prabhulal against her wishes and without her consent and committed offence under Section 376, Indian Penal Code. ( 3. ) THE prosecution story is somewhat peculiar. Appellant-Mangalia was an outsider and unknown to the victims. Deceased Prabhulal, with his wife and son Bhagwansingh and other minor son and daughter, was living in Semra Har in a house which he had constructed over his own field Survey No. 146. The place was called "ballapur Ka Bagicha". At a distance of one furlong from his field P. W. 3-Surajbai, her husband Mawasiya (P. W. 16), resided. It is stated that on 1-7-1990 in the afternoon accused Mangalia passed by the side of the house of P. W 3-Surajbai and just casually told them that he was moving here and there in search of his cattle which are missing. He wanted to know if Surajbai and her husband have seen his cattle who are 8 to 10 in number. Accused introduced himself to Surajbai and her husband and told that he was a resident of Village Atari Khejra. From the place of P. W. 3-Surajbai accused Mangalia went to the house of deceased Prabhulal and introduced himself in the same way as he had done earlier to Surajbai. He also enquired from deceased Prabhulal if the latter had seen his cattle numbering 10-12. Deceased Prabhulal told him that he had not seen any cattle. From the place of P. W. 3-Surajbai accused Mangalia went to the house of deceased Prabhulal and introduced himself in the same way as he had done earlier to Surajbai. He also enquired from deceased Prabhulal if the latter had seen his cattle numbering 10-12. Deceased Prabhulal told him that he had not seen any cattle. The accused expressed that he was hungry and demanded food and thereupon he was given food by P. W. 2-Khuslobai and after having his meals, the accused left towards Village Magrana. The two front teeth of the accused were missing. In the evening, at about 6 or 7 accused returned to the house of deceased and sat near the deceased. In the evening Khuslobai sent meals to her husband who was sitting outside. Deceased Prabhulal showing human courtsey enquired from the accused if he would also share meals and when the latter expressed his desire to have meals, he too was supplied meals. The accused expressed his desire to Prabhulal to have night-stay in his house because it had turned dark and was also raining. Again as a gesture of human courtesy deceased Prabhulal offered his cot to accused and allowed him to sleep in "chhapari" (Barandah) and the deceased himself slept on ground on a Chatai. His wife Khuslobai, with his sons Bhagwansingh, Brijesh and one other in the lap slept inside. However, while being to sleep she had closed the doors without chaining them. It is at about 9. 00 p. m. when her husband had already gone asleep, she inside her house was feeding her child in the lap in the light of Chimani. It is at this juncture that accused Mangalia entered into the house and came to her and lifted an axe from the room and very swiftly grabbed Khuslobai, throttled her neck and gave few fists on her chest and did not allow her even to cry or raise alarm and thereafter against her wishes, forcibly committed sexual intercourse with her. He was going just to gave an axe blow to Khuslobai when the deceased in the Chhapari had an attack of cough [kklh- Probably apprehending some risk from Prabhulal, the accused rushed towards him and started attacking him with axe. He was going just to gave an axe blow to Khuslobai when the deceased in the Chhapari had an attack of cough [kklh- Probably apprehending some risk from Prabhulal, the accused rushed towards him and started attacking him with axe. Lady Khuslobai found this opportunity to slip away from the house and she rushed to the house of Ganpat where she met Nandram (P. W. 9), who happens to be the son of Ganpat. She narrated the incident to Nandram and in turn Nandram went to Shankarlal (P. W. 10), Kashiram (P. W. 1), Rambharosa (P. W 11) and Ghasiram (P. W. 13) and told them about the incident that some unknown person has come to the house of Prabhulal and has attacked him. Learning about this, these people rushed to the house of Prabhulal and found that Prabhulal had injuries on his head, cheek and other parts of the body and he was bleeding from the injuries and was wriggling from pain and died very soon thereafter. In the night itself Nandram, Shankarlal etc. went to Chowkidar of Village Ballapur but Chowkidar was out of station, therefore, they took his son with them and informed Khemchand (P. W. 12), the maternal uncle of Prabhulal, about the incident. ( 4. ) ON 2-7-90, Kashiram (P. W. 1) at 12. 00 hours lodged First Information Report with Kashiram Sijoriya (P. W. 18), who recorded it (Ex. P-1 ). After recording First Information Report, the Station House Officer went to the spot and after calling the witnesses prepared inquest memo (Ex. P-8) at about 14. 00 hours. In the presence of these witnesses he seized blood-stained axe, Chatai and blood-stained earth and plain earth. He sent dead-body of Prabhulal for post-mortem. Autopsy was done on the dead-body of Prabhulal by Dr. Rajendra Kumar Jain (P. W. 17) and Dr. Hariom Sharma (P. W. 19 ). They found number of incised wounds located at right cheek, above right eye-brow, right side ear and occipital bone. They also noted that there was fracture of right mandible and right maxilla, right parietal, right temporal and frontal bone and ribs at Nos. 3 to 7 were also fractured. Right lung was also ruptured and they were of the opinion that the deceased died of these injuries which were anti-mortem and were sufficient in the ordinary course for death. According to them, deceased Prabhulals death was homicidal. 3 to 7 were also fractured. Right lung was also ruptured and they were of the opinion that the deceased died of these injuries which were anti-mortem and were sufficient in the ordinary course for death. According to them, deceased Prabhulals death was homicidal. ( 5. ) THE accused was arrested in some other crime and was admitted in District Hospital, Guna and therefore, he was subjected to identification on 16-7-1990 by Executive Magistrate (P. W. 4), R. K. Jain. He was identified by Khuslobai (P. W. 2), Surajbai (P. W. 3 ). Devilal Patwari (P. W. 6) had prepared the spot-map. After completing formalities of investigation, charge-sheet was presented. ( 6. ) AT the trial, accused abjured his guilt and claimed that he was falsely implicated. ( 7. ) THE appellant in this appeal has challenged his conviction under Section 302 of IPC, on the ground that appreciation of evidence was not proper and Khuslobai (P. W. 2) and her son as well as Surajbai (P. W. 3) ought not to have been believed as regards identification of the accused particularly looking to the discrepancies in their version. It was also contended that Khuslobai (P. W. 2) has not been believed by the learned Trial Court as regards offence under Section 376 of IPC and therefore her oral testimony was not worth credibility. He has also challenged finding of the learned Trial Court awarding compensation of Rs. 25,000/- against him, as he has no means to pay. ( 8. ) THE State of Madhya Pradesh in its appeal has challenged finding of the learned Trial Court acquitting accused of the charge under Section 376 of IPC. The State has also challenged order of the learned Trial Court directing State to pay the amount of compensation awarded against the appellant/accused, and thereafter its recovery from the accused. It has also challenged other findings which are in the form of directions to give job to the sons of the deceased, free education, and also suitable compensation to the wife of the accused in case he is married. ( 9. ) FIRST we take up the appeal of the appellant/accused challenging his conviction under Section 302 and awarding of compensation by the Trial Court. ( 10. ) WE have heard learned Counsel appearing for both the sides at length and also perused the record. ( 9. ) FIRST we take up the appeal of the appellant/accused challenging his conviction under Section 302 and awarding of compensation by the Trial Court. ( 10. ) WE have heard learned Counsel appearing for both the sides at length and also perused the record. The learned Trial Court has placed reliance on the oral testimony of Khuslobai (P. W. 2), Surajbai (P. W. 3) and Bhagoo (P. W. 15), who happens to be son of the deceased as regards occurrence. Having gone through their statements we too are not inclined to take a different view in the matter. From their statements it is well established beyond any doubt that it was appellant alone, who injured deceased Prabhudayal and caused his death. Surajbai (P. W. 3) had the opportunity to see the appellant in the broad-day-light, when he visited her place and she had seen him going towards the house of the deceased, which is at a short space. The appellant had come to the house of the deceased after visiting Surajbais house and was there for a sufficiently long time during which he was also given food by Khuslobai (P. W. 2), in the presence of her husband. The accused again visited the house of the deceased in the evening and was also supplied food alongwith deceased and it is Bhagoo (P. W. 15), who had actually served the meals. Therefore, all these witnesses had ample opportunity to have well identified the accused. Khuslobai (P. W. 2) has seen the accused rushing towards her husband with an axe and attacking him and therefore out of fear, she had run away and when other witnesses after information from Khuslobai had reached the spot and they had seen the deceased badly injured and gasping and breathing his last and at that time, the accused had already disappeared. This strong circumstance coupled with the fact that Khuslobai had seen him leaves no doubt that it is appellant/accused, who had injured and caused the death of deceased Prabhudayal. The injuries on the person of the deceased further corroborate that an axe was used by the appellant. Bhagoo (P. W. 15) is not so a small boy that he will not be able to identify the appellant, who had an occasion to see firstly in the afternoon and secondly in the evening and also because he had served the meals. Bhagoo (P. W. 15) is not so a small boy that he will not be able to identify the appellant, who had an occasion to see firstly in the afternoon and secondly in the evening and also because he had served the meals. Therefore, the learned Trial Court had very properly scrutinized the evidence of these three witnesses and has come to the correct conclusion that it is appellant alone, who is responsible for causing the death of deceased Prabhudayal. As per medical evidence, it was homicidal death as a result of injuries sustained by deceased Prabhudayal, which were anti-mortem. Therefore, the findings of the learned Trial Court holding the appellant guilty of offence under Section 302, IPC are well reasoned and call for no interference. Therefore, the conviction of the appellant/accused for offence under Section 302, IPC is confirmed. As regards the sentence of life imprisonment awarded by learned Trial Court, it calls no interference. ( 11. ) WE next come to the State appeal challenging the acquittal of the appellant for an offence under Section 376 of IPC. Again, we find that learned Trial Court has given cogent reasons for acquitting the appellant. The prosecutrix, Khuslobai (P. W. 2) herself does not say a word in her examination-in-chief that she was subjected to sexual intercourse by the appellant. It is virtually the prosecutor, who has tried to remind her about the sexual intercourse by confronting her from her statement under Section 161, Cr. PC. Witnesses Narendra Singh, Kashiram and Hotshah met her at the earliest point of time, do not say that she ever narrated about the incident of rape on her by the accused. Probably this was the reason that the incident relating to sexual intercourse against Khuslobai does not find place in the FIR. Therefore, in the circumstances, no doubt, the learned Trial Court was justified in giving benefit of doubt to the appellant and acquitting the appellant of the charge under Section 376 of IPC. The law on the point is well settled that the High Court in an appeal against the order of acquittal should not interfere with the findings unless and until it could be shown that the findings of the learned Trial Court on the point are perverse and contrary to evidence and material on record. The law on the point is well settled that the High Court in an appeal against the order of acquittal should not interfere with the findings unless and until it could be shown that the findings of the learned Trial Court on the point are perverse and contrary to evidence and material on record. The learned Counsel appearing for the State could not demonstrate as to how the findings of the learned Trial Court suffer from any sort of perversity. It is well settled that witnesses could be disbelieved partly, and conviction could be based on the evidence found reliable by the Court. Therefore, the arguments of the learned Counsel for the State do not carry any force that Khuslobai (P. W. 2) ought to have been believed so far as her oral testimony relates to offence of rape because she has been believed as regards the offence under Section 302 of IPC. We, therefore, are not inclined to interfere with the findings of the Trial Court as regards acquittal of the appellant/accused for an offence under Section 376, IPC. ( 12. ) WE next come to the issue of compensation awarded by learned Trial Court against the accused/appellant under Section 357 (3), Cr. PC. The learned Trial Court, no doubt, was within its limits as regards legal competency to award compensation against the appellant, but in the scheme contemplated under Section 357, Cr. PC there appears no scope for direction to the State to pay the amount of compensation that has been awarded against the accused. If the learned Trial Court was convinced and satisfied accepting the arguments of the learned defence Counsel in the Trial Court that the accused had no means to pay fine, it could have taken notice of this fact. This aspect of inability of the accused for want of means to pay the compensation was a relevant fact and circumstance for determination of the amount of compensation. If the accused himself was not in a position to pay a huge amount of Rs. 25,000/- a lesser amount of compensation should have been determined, but it does not appeal to any logic that an amount should have been awarded which the accused was not in a position to pay and therefore a direction to the State to pay amount to the victim and then to realise and recover from the accused. 25,000/- a lesser amount of compensation should have been determined, but it does not appeal to any logic that an amount should have been awarded which the accused was not in a position to pay and therefore a direction to the State to pay amount to the victim and then to realise and recover from the accused. In the facts and circumstances, it is the State, which has indirectly been subjected to pay amount of compensation because there appear little chances or almost no chance that the State could recover the amount from the accused who appears to be without means and which fact was well realised by the learned Trial Court while refusing to impose sentence of fine. It is true that the family of the deceased has been brought on the roads after the death of bread-earner and the victims deserve some sort of relief for which compensation should have been awarded. To that extent we would not like to interfere with the discretion of the Trial Court even in fixing of the amount of compensation to Rs. 25,000/-, which does not appear un-reasonable in the facts and circumstances. In the case where widow of deceased was left without any support because the bread-earner of the family was gone and she had to bring up minor children, the Apex Court had approved the award of compensation in the cases of Sukhbinder Kaur v. Nirmolak Singh, reported in 1982 SCC (Cr.) 428, Balraj v. State of U. P. , reported in 1994 SCC (Cr.) 823, and had even awarded compensation to the tune of Rs. 55,000/ -. In another case of Hari Kishan and State of Haryana v. Sukhbir Singh, reported in AIR 1988 SC 2127 , the Apex Court while dealing with scope of Section 357 (3), Cr. PC observed as under:- "sub-section (3) is an important provision but the Courts have seldom invoked this. It empowers the Court to award compensation to victims while passing judgment of conviction. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who had suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is an addition thereto. In addition to conviction, the Court may order the accused to pay some amount by way of compensation to victim who had suffered by the action of accused. It may be noted that this power of Courts to award compensation is not ancillary to other sentences but it is an addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well as reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there arc more than one accused they may be asked to pay in equal terms unless their capacity to pay varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments may also be given. The Court may enforce the order by imposing sentence in default. " ( 13. ) UNFORTUNATELY, no evidence has been collected as regards ability of accused/appellant to pay compensation. In the instant case, we do not find that there is evidence on record as regards ability of the accused to pay compensation. There is no material to assess his capacity as regards payment of compensation. However, keeping in mind the circumstances and the conditions of the widow and her children in which they have been placed without bread-earner, we are not inclined to interfere with the quantum of compensation awarded by the learned Trial Court, but we are unable to approve the findings and directions of the learned Trial Court against the State for payment of amount of compensation to the victim and then to realise and recover it from the accused/appellant. Other observations in the form of directions to the State to provide free education to the children, to provide job to one of the sons of the deceased and also compensation to the wife of the accused if he is married appear to be un-warranted and beyond the scope. Therefore, we feel that those directions are like legal and judicial mandate. It is for the State to come out with suitable legislation to meet the exigencies which often result in the circumstances similar to present case. In the end, the appeal filed by the appellant against his conviction for an offence under Section 302, IPC, fails and is dismissed. The findings of the Trial Court as regards conviction and sentence of the appellant under Section 302, IPC, are confirmed. The State-appeal against the order of acquittal also fails and dismissed. However, it partly succeeds and the directions of the learned Trial Court to the State to pay the amount of compensation to victim as well as the other observations in the form of directions referred to hereinabove are set aside.