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2003 DIGILAW 350 (MP)

HETLAL v. STATE OF MADHYA PRADESH

2003-02-28

A.K.SHRIVASTAVA, DIPAK MISRA

body2003
Judgment ( 1. ) THIS appeal has been preferred under Section 374 of the Code of criminal Procedure, 1973 against the judgment of conviction and order of sentence passed by the Ist Additional Sessions Judge, Rewa in Sessions Trial no. 11/1988 convicting the appellants under Section 302 read with Section 34 of the Indian Penal Code (hereinafter referred to as the IPC), further convicting accused Hetlal and Ashwani Kumar under Section 323 of the IPC and directing them to suffer imprisonment of life under Section 302 read with section 34 of the IPC and one month R. I. under Section 323 of the IPC with the stipulation that both the sentences shall run concurrently. ( 2. ) THE facts shorn of unnecessary details, lie in a narrow compass. The field of the accused persons and that of Ram Sevak (hereinafter referred to as the deceased) are adjacent to each other. On the fateful day, i. e. , 9-11-1987 at 7 in the morning deceaseds wife Choursiya along with her son ramji and daughter Kalpana were in their field and the accused was repairing the mound of the field. It is alleged that the accused persons threw the straws of millet in the field of the deceased and the deceased was collecting the said straws. It is said that at this juncture, accused Radhika along with the weapon akheni (Sickle attached to long stick), accused Hetlal and Ashwani Kumar armed with lathi came and started beating the deceased. Hetlal gave a lathi blow on the person of the deceased, as a result of which he fled but he (Hetlal)chased him and inflicted another blow of lathi, as a consequence of which he fell down and thereafter accused persons Radhika and Ashwani Kumar gave blows by weapons akheni and lathi respectively. These blows were dealt by them when the deceased was lying on the ground. On screaming by the wife of the deceased, accused Hetlal gave a lathi blow on her head and another blow was given on her shoulder. Upon hearing the hue and cry, one Pappu and his son Jawahar came to the spot and they were also beaten by the accused ashwani. It is the version of the prosecution that the accused Ashwani gave a lathi blow on the shoulder of Jawahar, eventually he fell down and thereafter all the three accused persons fled from the spot. ( 3. It is the version of the prosecution that the accused Ashwani gave a lathi blow on the shoulder of Jawahar, eventually he fell down and thereafter all the three accused persons fled from the spot. ( 3. ) AFTER the departure of the accused persons, Kamta, Pannalal, ramsiya, Banshilal arrived at the spot and brought the deceased to Police chowki of Village Lal, where the wife of the deceased, namely, Choursiya lodged report which was registered at zero number under Sections 447,323 read with Section 34 of the IPC and in this manner the criminal law in motion. ( 4. ) THE deceased, who was alive at that time, his wife Choursiya and jawahar were sent for medical examination to the Primary Health Centre, lalgaon, however, on account of the non-availability of the doctor, these persons were sent to Gandhi Memorial Hospital. The doctor found bruises on the right shoulder and on the head of the Choursiya but did not find any injury on the person of Jawahar. The doctor found injuries on the head and face of the deceased, he noticed the condition of the deceased which was found to be serious and the wounds were found grievous in nature, looking to the condition of the deceased he was admitted in the hospital. ( 5. ) ON receiving the First Information Report, initially a case was registered at Crime No. 140/87 for the offences punishable under Sections 447, 323 read with Section 34 of the IPC. On the next day, i. e. , 10-11-1987 the deceased breathed his last and his dead-body was sent for the post-mortem. In the post-mortem, the doctor found that the deceased died on account of the injuries received by him on his head. ( 6. ) THE investigating agency on 10-11-1987 arrested accused radhika Prasad and at his instance seized the weapon akheni used in the crime. The co-accused persons Hetlal and Ashwani Kumar were also arrested and at their instance lathis were recovered. These weapons were sent to the doctor for examination who opined that injuries which were received by the deceased, could have been caused by these weapons. The investigating agency sent the seized weapons, clothes of the deceased, ordinary and blood-stained earth for the serological examination where the presence of blood was confirmed on these articles. ( 7. These weapons were sent to the doctor for examination who opined that injuries which were received by the deceased, could have been caused by these weapons. The investigating agency sent the seized weapons, clothes of the deceased, ordinary and blood-stained earth for the serological examination where the presence of blood was confirmed on these articles. ( 7. ) AFTER the completion of the investigation, the prosecution filed the charge-sheet in the Competent Court which committed the case to the court of Session. Eventually, it was received by the Trial Court for the trial. ( 8. ) THE age of the accused Ashwani Kumar was found to be less than 16 years as such charge-sheet against him was filed in the Juvenile Court. However, the said Court found him to be above 16 years, as a result of which his case was also sent for the trial to the Trial Court. The accused persons hetlal and Radhika Prasad were tried under Sessions Trial No. 11/88 and ashwani Kumar was tried under Sessions Trial No. 790/87. The learned Trial judge tried both the cases together. ( 9. ) IT be seen that the accused Hetlal and Ashwani Kumar were separately charged under Section 323 of the IPC for voluntarily causing hurt to Choursiya Bai and to Jawahar respectively. All the accused persons abjured their guilt. The defence of the accused Radhika Prasad is that the deceased, his wife and Jawahar (son of the deceased) dismantled the mound with an intention to include part of his field in their field and when they were refrained by him, he was beaten and he became unconscious. He has been falsely implicated. The other co-accused persons Hetlal and Ashwani Kumar putforth the defence of alibi. According to the accused Hetlal on the date of occurrence (9-11-87), he was on his duty in the Kanya Ucchttar Madhyamik Vidhyalaya, lalgaon where he was serving as a teacher, whereas according to the accused ashwani Kumar, he was in his school and was undergoing his studies of Class x. The accused Hetlal in his defence examined Awdhesh Prasad Patel (D. W. 1) and the accused Ashwani Kumar examined his colleague Panch Raj Singh (D. W. 2 ). The accused Radhika Prasad did not choose to examine any witness in his defence. ( 10. The accused Radhika Prasad did not choose to examine any witness in his defence. ( 10. ) THE learned Trial Judge, after considering the entire scenario and the factual aspect of the case, found that the prosecution failed to prove its case beyond doubt under Section 447 of the IPC against all the accused persons and as such acquitted them from the said charge. However, on the scrutiny of the evidence, it found that the prosecution has successfully proved its case against all the accused persons under Section 302 read with Section 34 of the IPC as well as under Section 323, IPC for causing voluntarily hurt by the accused Hetlal and Ashwani Kumar. The learned Trial Judge passed the sentences mentioned hereinabove. Hence, this appeal. ( 11. ) SHRI Surendra Singh, learned Senior Counsel with Shri Ashwani kumar Dubey appearing for the appellant submitted that the learned Trial judge failed to consider the evidence in its totality, its impact and further failed to marshall the evidence by overlooking the material contradictions and omissions that had crept in the testimony of the prosecution witnesses. In the alternate it has been putforth by the learned Senior Counsel that in any case, the case would be one under Section 304 Part II of the IPC. ( 12. ) PER contra, Smt. Chanchal Sharma, learned Panel Lawyer for the state, with her usual vehemence, submitted that the learned Trial Judge who was in a position to note the demeanour of the witnesses, in his wisdom, considered the entire oral and documentary evidence placed on record and came to a definite conclusion that the appellants did commit the crime for which they were charged. According to her, the learned Trial Judge did not err in convicting the appellants and passing the sentences against them. ( 13. ) IT is perceivable that the prosecution examined as many as 14 witnesses and has placed Ex. P-l to P-29 the documents on record. ( 14. ) THE star witnesses of the case are Choursiya (P. W. 1), who is the wife of the deceased, Ramji (P. W. 2), a child witness having age of 10 years and who is the son of the deceased, Pannalal (P. W. 3), Ramesh (P. W. 5), another child witness having age of 10 years. ( 15. ( 14. ) THE star witnesses of the case are Choursiya (P. W. 1), who is the wife of the deceased, Ramji (P. W. 2), a child witness having age of 10 years and who is the son of the deceased, Pannalal (P. W. 3), Ramesh (P. W. 5), another child witness having age of 10 years. ( 15. ) THE wife of the deceased (Choursiya Bai) in her testimony has categorically stated that on the fateful day she was in the field along with her husband, son, Ramji (P. W. 2) and daughter Kalpana. The deceased was collecting the straw of the millet thrown by the accused persons in their field, at that juncture accused Radhika was armed with a "akheni" and the other accused persons Hetlal and Ashwani were carrying lathis. Hetlal came and gave one lathi blow on the person of the deceased and when he was running away to rescue himself another blow was dealt by Hetlal, as a result of which, he fell down on the ground and thereafter, the other co-accused persons Radhika and ashwani started giving blows by the Akheni and the lathis, when the deceased was lying down on the ground after receiving the injuries, caused by Hetlal to him, according to her, she was screaming because her husband was brutally beaten by the accused persons. Thereafter, the accused Hetlal gave a lathi blow on her head and another blow was dealt on the shoulder. Upon hearing the hue and cry, her son Jawahar Lal came to the spot, who was assaulted by the accused Ashwani with the lathi and the blow landed on his shoulder as a result of which he fell down on the ground. In the cross-examination, she vividly described how her husband was beaten by the accused persons. Firstly accused hetlal gave lathi blows on the head of the deceased and thereafter, the accused radhika gave two blows of "akheni" on his head and some blows by this weapon were dealt on the legs of her husband. The accused Ashwani dealt several blows on the back of the deceased. ( 16. ) THE testimony of this witness has been corroborated by the child witnesses Ramji (P. W. 2) and Ramesh (P. W. 5 ). Though, these witnesses are the child witnesses but after X-raying their testimony we find there is nothing un-natural in their deposition. The accused Ashwani dealt several blows on the back of the deceased. ( 16. ) THE testimony of this witness has been corroborated by the child witnesses Ramji (P. W. 2) and Ramesh (P. W. 5 ). Though, these witnesses are the child witnesses but after X-raying their testimony we find there is nothing un-natural in their deposition. Merely because these witnesses are child witnesses it can not be said that their evidence could not be held to be credit-worthy. The Supreme Court in the case of Shishan Vs. State of rajasthan, (2000) 10 Supreme Court Cases 249, has laid down that on the basis of the evidence of the sole child witness, an accused can be convicted. After scrutinising the evidence of these two child witnesses, we have come to the conclusion that they have given a clear picture of the entire occurrence and have corroborated the testimony of Choursiya (P. W. 1 ). In another decision suryanarayana Vs. State of Kamataka, AIR 2001 Supreme Court 482, Their lordships, while considering the testimony of a six year old child witness have held that a conviction can be recorded on the basis of sole testimony of child eye-witnesses, his evidence can not be rejected perse but the Court, as a rule of prudence is required to consider such evidence with close scrutiny and only on being convinced about the quality of the statements and its reliability can base the conviction by accepting his testimony. ( 17. ) ON the basis of the ratio of the aforesaid cases of the Apex Court, we have evaluated the evidence of the child witnesses more carefully and with greater circumspection and we find that there is nothing in their evidence so as to discredit them. If the entire scenario is tested on the anvil of the evidence of these witnesses namely, Choursiya (P. W. 1), Ramji (P. W. 2) and Ramesh (P. W. 5), it would reveal that there is positive evidence against the accused persons causing the injuries to the deceased, as well as the injured witnesses choursiya and Jawaharlal. The evidence of above eye-witnesses are clear, cogent and credit-worthy. Learned Senior Counsel for the appellant could not point out any basic or intrinsic infirmity in their testimony so as to discredit these witnesses. ( 18. ) THE evidence of above said eye-witnesses is corroborated by the medical evidence. Dr. The evidence of above eye-witnesses are clear, cogent and credit-worthy. Learned Senior Counsel for the appellant could not point out any basic or intrinsic infirmity in their testimony so as to discredit these witnesses. ( 18. ) THE evidence of above said eye-witnesses is corroborated by the medical evidence. Dr. Surendra Jain (P. W. 14), who had conducted the post-mortem of the deceased has said that he died on account of head injury leading to coma. The doctor noticed as many as 15 injuries which are mentioned in his report (Ex. P-27 ). The investigating agency referred the weapons used in the commission of the crime, for examination, to the doctor and the doctor gave his report (Ex. P-28) stating that the death could have been caused by this weapon. The doctor, Shri Surendra Jain had proved his report in his evidence and had specifically stated that the injury Nos. 10,11,12,13,14 and 15 were sufficient to cause death. Needless to say that some of these injuries are on the head, including the fracture. Thus, the evidence of the witnesses is corroborated by the medical evidence and as such there is no room to say that the prosecution has failed to prove its case. ( 19. ) THE prosecution examined Pannalal Patel (P. W. 3) as a supporting witness. This witness came to the spot immediately after the incident had taken place and saw that the accused persons were running away from the spot carrying the weapons in their hand, he found the deceased having injuries on his head and on the other part of his body. The wife of the deceased (Choursiya) was also having the injuries on her head and wrist as well as jawaharlal was also injured. On being asked from these witnesses, the wife of the deceased stated that the accused persons have caused the injuries. In the cross-examination nothing has been elicited so as to disbelieve this witness. The other supporting witness is Jawaharlal (P. W. 7), who is also an injured witness. This witness reached the spot after hearing hue and cry of Pappu, he rushed to the spot and found that his father was lying on the ground and the accused persons were beating him. He has stated that Hetlal and Ashwani had caused injuries by lathis and accused Radhika was causing injuries by "akheni". This witness reached the spot after hearing hue and cry of Pappu, he rushed to the spot and found that his father was lying on the ground and the accused persons were beating him. He has stated that Hetlal and Ashwani had caused injuries by lathis and accused Radhika was causing injuries by "akheni". This witness has further stated that Hetlal gave two lathi blows to his mother which landed on her head and shoulder and when he tried to intervene, he was also beaten by the Ashwani with lathi and the blow was dealt on his shoulder. ( 20. ) IN defence, the accused had examined the witnesses Awadesh pratap Patel (D. W. 1) and Panchraj Singh (D. W. 2 ). The learned Trial Judge after giving his anxious consideration to their testimony and weighing their evidence in comparison with the prosecution witnesses gave elaborate reasons from Paras 33 to 40 holding in negative the plea of alibi to be unnatural and suspicious beyond the doubt. We see no reasons to deviate ourselves from the reasons assigned by the learned Trial Judge and thus we hereby give our stamp of approval to those findings. ( 21. ) UNDER the criminal jurisprudence, no innocent person should suffer but at the same time a guilty should also not escape unpunished. It be seen that the justice can not be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent person. Letting the guilty escape is not doing justice according to Law. One wonders, whether in the meticulous hypersensitivity to eliminate a rare innocent from being punished, many guilty persons must be allowed to escape. ( 22. ) NOW the question comes that what offence the accused persons had committed. It has been contended by the learned Senior Counsel Shri surendra Singh, that there was no intention to cause death and therefore, the case, at the most, would be, under Section 304 Part II of the IPC. To bolster his submissions he has given emphasis on the decision laid down by the Apex court in the case of Madhusudhan Vs. State of Orissa, AIR 1994 SC 474 . In this case the deceased went to the house of the accused and there was only single injury on the head that proved to be the fatal. The other injuries were found to be simple. State of Orissa, AIR 1994 SC 474 . In this case the deceased went to the house of the accused and there was only single injury on the head that proved to be the fatal. The other injuries were found to be simple. In this view of the matter the Apex Court convicted the accused under Section 304 Part II, IPC. In the present case, we have noticed hereinabove, there are as many as six injuries which had caused the death as per doctor Shri Surendra Jain (P. W. 14 ). Thus in our considered view the case of Madhusudhan (supra) is not applicable in the present facts and circumstances of the case. As we have discussed hereinabove while analysing and marshalling the evidence of above said four eye-witnesses that two lathi blows were dealt by the accused Hetlal as a result of which the deceased fell down and at that juncture when he was unable to rescue himself, the accused persons gave further blows while the deceased was lying on the ground. In this view of the matter we have no hesitation to hold that the intention of the accused persons to kill the deceased was singularly singular. On the basis of the evidence placed on the record, we are of the considered view that the act of the accused persons was culpable homicide amounting to murder and accordingly the Trial Court rightly convicted them under Section 302 read with section 34, IPC. ( 23. ) WE have also tested the case of the accused persons Hetlal and ashwani on the basis of the evidence and we find that the learned Trial Judge has correctly recorded a conviction against these two accused persons under section 323 of the IPC apart from Section 302/34, IPC. ( 24. ) IN the result, the appeal being sans substance, is hereby dismissed. Criminal Appeal dismissed.