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2004 DIGILAW 291 (MP)

Bherulal v. State of M. P.

2004-03-23

P.C.AGARWAL

body2004
JUDGMENT Bherulal (A-l) stands convicted under sections 304 (Part II) of the Indian Penal Code (Code for short) and sentenced to undergo RI for 7 years with fine of Rs. 2,000/-, in default to further undergo imprisonment for 3 months more. Bhura (A-2) was convicted under section 123 of the Code and sentenced to undergo R.I. for 3 months with fine of Rs. 500/-, in default to further undergo imprisonment for 3 months. Bherulal (A-l) has been in detention between 10.9.1997 to 7.11.1997 and 5.5.1998 to 6.5.1998, thus for about two months before conviction, he was sent to jail on 6.5.1998 and his sentence was suspended on 18.6.1998 by this Court and he submitted his bail next day that is he has been in custody for about 4 months and 13 days. Fine amount has been deposited. Bhura (A-2) remained in detention between 10.8.1997 to 7.11.1997 i.e. for 2 months and 28 days. He has also deposited the fine amount. As per prosecution deceased used to work as a labour of Bherulal (A-I). On 5.6.1997 at about 3.00 p.m. on demand of wages Bhura (A-2) caught the deceased while Bherulal (A-I) beat him with kicks, fists and stones. Deceased fell on railway line. Nandlal (PW 3) who was working for Mohan Seth rushed to the spot and brought the deceased near the neem tree. He brought water also. Deceased died afterwards. On call of Nandlal (PW 3) his father Dubalia (PW 2) also came on spot. FIR Ex. P-9 was lodged by Dubalia (PW 2) scribed by RS. Tiwari (PW 7) S.O. Rawati. R.S. Tiwari (PW 7) visited the spot, prepared inquest memo vide Ex. P-2 and spot map Ex. P-3 and sent the dead body for post mortem vide Ex. P-4. Later a case of marg was reported vide Ex. P-11 and G.R.P. police was intimated. Dr. B.L. Mangaria (PW 4) on post mortem on 6.6.1997 noted following injuries on the dead body: (i) Abrasion with bruise and swelling on right eye lid and clotted blood on right eye (mild) abrasion 1/2 x 1/4 cm. in size. (ii) Bruise 4 x 2 cm. on lateral side (fonto lateral) on upper abdomen. (iii) Bruise 3 x 2 cm on back below scapula. in size. (ii) Bruise 4 x 2 cm. on lateral side (fonto lateral) on upper abdomen. (iii) Bruise 3 x 2 cm on back below scapula. On internal examination spleen was found mild enlarged with a tear in middle of base resulting bleeding in abdomen, cause of death was excessive hemorrhage due to rupture of spleen vide Ex. P-5 Bhura (A-2) was arrested on 10.8.1998 vide Ex. P-7 while Bherulal (A-1) was arrested on 10.9.1997 vide Ex. P-8. Both the appellants have pleaded not guilty. They claimed that the police has falsely implicated them. Nandlal (PW 3) a nephew of deceased has supported the case of prosecution that Bhura (A-2) had caught the deceased while Bherulal (A-1) was beating him by stones, kicks and fists and he had taken the deceased away from the railway line towards the neem tree. Deceased had told him to call the family members and give some water. The witness has brought some water and called his father, Dubalia (PW 2). Dubalia (PW 2) has tried to arrogate himself to be a witness who had seen the deceased while alive and to whom the deceased had named both the appellants as his assailants. He has even deposed that he had gone to the appellants to enquire/ask why did they beat the deceased but they had not replied. However, looking to the FIR Ex. P-910dged by him and his statement Ex. D-l recorded by R.S. Tiwari (PW 7), the 1.0., it is clear that he could not see the deceased alive and he had lodged the FIR Ex. P-9 on information supplied to him by his son Nandlal (PW 3). Certainly Dubalia (PW 2) has been overenthusiastic due to enmity. However, that in itself is not enough either to discard the statement of Nandlal (PW 3) or the FIR Ex. P-9 lodged by this witness and scribed by RS. Tiwari (PW 7) the S.O., Rawali. Certainly, this FIR Ex. P-9 had been lodged within about 2.5 hours of the occurrence at P.S.-Ravati situate at a distance of 6 kms. from the spot when Dubalia (PW 2) had been under the full influence of the occurrence and had not any opportunity for any deliberations or consultations with any body. Such FIR Ex. P-9 has taken the case of prosecution very far. As already seen Dr. from the spot when Dubalia (PW 2) had been under the full influence of the occurrence and had not any opportunity for any deliberations or consultations with any body. Such FIR Ex. P-9 has taken the case of prosecution very far. As already seen Dr. B.L. Mangaria (PW 4) had noted some external injuries on the dead body of deceased and rupture of spleen on internal examination. Certainly rupture of spleen and consequent internal bleeding had been the cause of death. This doctor has opined that the spleen was mildly enlarged though he has not noted down the size of such spleen. Cause of death had been excessive internal bleeding. Thus, the death was homicidal. The doctor is an independent witness. He has no axe of his own to grind against either party. Thus, his statement is of great value and the Court below has not erred on relying upon him. It is true that Mansingh a labour who had come on spot even before Nandlal (PW 3) has not been examined. Employees and other persons at railway station at the time of occurrence have also not come forward to depose. Suresh (PW 5) has claimed that deceased had fallen down the running train. He has been declared hostile by learned public prosecutor and has been cross-examined and confronted with the previous statement recorded by I.O. which he has denied. R.S. Tiwmi (PW 7) the I.O. has proved correct recording of such statement. Learned trial Court has rightly disbelieved him. It is noteworthy that Mansingh had been his employee thus, nothing better could have been expected from Mansingh also. However, in the facts and circumstances of the case there has been no reason to disbelieve Nandlal (PW 3) supported by prompt FIR Ex. P-9 lodged by Dubalia (PW 2). The appellants had merely pleaded not guilty. They had not been able to show any motive why Nandlal (PW 3) or his father Dubalia PW 2) would falsely implicate them for death of their near and dear one absolving the real offender. Certainly, it had not been a case of fall from running train. There has been no evidence to support such case on record. Even the appellants have not taken such a after thought statements. Certainly, it had not been a case of fall from running train. There has been no evidence to support such case on record. Even the appellants have not taken such a after thought statements. Thus, finding of the Court below that Bhura (A-2) had caught the deceased while Bherulal (A-1) had beaten him with kicks and fists is well proved and founded on evidence on record. Certainly, the deceased had died due to rupture of spleen and consequent internal bleeding. Such spleen was enlarged perhaps due to some disease. Bherulal (A-1) had beaten the deceased only with kicks and fists. There has been no clear evidence of use of stones for beating. Though the deceased might have sustained some scratches due to fall on railway line. There has been no evidence on record that Bherulal (A-1) was knowing that the deceased had enlarged spleen. The occurrence was sudden and unpremeditated. Bherulal (A-1) had used only kicks and fists to beat the deceased. Only 3 or 4 blows were given by him. Neither his intention to kill nor his knowledge that such injury would result in death of the deceased could be presumed. The trial Court had also held the co-appellant Bhura (A-2) guilty only under section 323 of the Code, in my considered opinion case of Bherulal (A-1) also does not go higher than under section 325 of the Code. Bhoma v. State of M.P. 1957 MPLJ SN 144, Sahdeo v. State of M.P. 1992 MPWN 69 can be cited in support if citation of any authority is necessary. However, this case is not equivalent to Dadu v. State of M.P. 2002(2) JLJ 184 where the deceased had died after 7 days and had no external injury on his person and thus, the Court, when the deceased was assaulted with fists and kicks, had found the appellant guilty only under section 323 of the Code. Ramcharan v. State of M.P. 2001(2) JLJ 231 was not applicable as causing of fatal injury by the appellant Bheru)al (A-I) had been proved in this case while in that case fatal head injury could not be attributed to the appellant. Though Rameshwar v. State of M.P. 2002(2) JLJ 77 has been pressed into service by the advocate for appellants in that case eye-witness was the son of the deceased and had not lodged the FIR himself. Though Rameshwar v. State of M.P. 2002(2) JLJ 77 has been pressed into service by the advocate for appellants in that case eye-witness was the son of the deceased and had not lodged the FIR himself. It is true that Nandlal (PW 3) the eye-witness himself has not lodged the FIR in this case but FIR Ex. P-9 was lodged by his father Dobalia (PW 2) immediately afterwards. Thus, there is no infirmity on that count. In Rama Rao and others v. State of M.P. 1997(2) JLJ 118 the eye-witness had kept quite for 5 days and have not disclosed any time to the police and thus, his conduct was held to be doubtful which is not a case here. Dhannu Singh and others v. State of M.P. 1997(2) JLJ31 cannot also be used by appellants as Nandlal (PW 3) cannot be said to be a mere chance witness. He was working nearby at shop of Mohan Seth and he was named in FIR also and thus, his presence on spot cannot be doubted. Certainly, the appellant Bhurulal (A-1) had hit hard with fists and kicks to the deceased who had died immediately afterwards due to rupture of spleen and consequent internal bleeding. In these facts, Bherulal (A-1) is guilty of the offence under section 325 of the Code while conviction of Bhura (A-2) guilty of offence under section 323 of the Code cannot be disturbed. He had participated in the offence with the other co-appellant. As to sentence 7 years have elapsed after the occurrence. Bherulal (A-1) has been in custody for more than 4 months. He has been on bail since 19.6.1998. There is no point in sending him once again into the jail. Thus, his jail sentence is confined to that already undergone by him while he would pay a fine of Rs. 10,000/-, in default of payment of fine, he shall undergo R.I. for 1 year out of fine amount Rs. 10,000/- shall be paid to the parents of deceased as compensation under section 357 of the Code of Criminal Procedure. Sentence awarded to Bnura (A-2) does not require any interference, the same is maintained as it is. Appellant Bherulal (A-1) is on bail, he shall deposit the fine amount within a month before CJM, Ratlam. In case of default in payment of fine amount, CJM, Ratlam would send him to jail to suffer his sentence. Sentence awarded to Bnura (A-2) does not require any interference, the same is maintained as it is. Appellant Bherulal (A-1) is on bail, he shall deposit the fine amount within a month before CJM, Ratlam. In case of default in payment of fine amount, CJM, Ratlam would send him to jail to suffer his sentence. Appeal allowed in part. Conviction of Bherulal (A-1) is altered to one under section 325 of the Code. Sentence is reduced. Conviction and sentence of Bhura (A-2) are confirmed.