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Madhya Pradesh High Court · body

2007 DIGILAW 430 (MP)

DHANNALAL s/o BHUWANJI JAT v. STATE OF M. P.

2007-04-10

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2007
JUDGMENT : S. L. KOCHAR, J. 1. The appellant has challenged his conviction under section 302 of the Indian Penal Code and sentence of imprisonment for life and fine of Rs. 10,000/-, in default payment of fine to suffer additional R.I. for one year passed by the learned Special Judge, Ujjain, under SC and ST (Prevention of Atrocities) Act, 1989 in Sessions Trial No. 49/2001 by judgment dated 21-12-2001. 2. The prosecution case in nut shell as put forth before the trial Court is that on 24-4-2001 in the night at 7.30 PM, Nanuram was going to his village Matangana from village Chikli via his field. When he reached near the field of one Inder, the appellant Dhannalal came from the side of village on a motor cycle and dashed against him. Nanuram fell down on the ground. Thereafter, the appellant assaulted him by a lathi. The appellant, after assaulting by lathi, took up a SALIA (a wooden log used in bullock cart to support the luggage) from the field of one Mangu and assaulted Nanuram. The appellant caused injuries to Nanuram on both legs, hands, skull and waist. He also sustained fracture of leg. At the time of assault, the appellant was saying that as to why Nanuram had gone to Harijan Police Station for lodging the report and today he would eliminate him. Nanuram raised alarm whereupon the appellant fled away on motor cycle. The cry of Nanuram attracted his son Antar (PW-4), witnesses PW-8 Ganpat, PW-6 Bahadur and other villagers who reached near Nanuram and Nanuram disclosed about the incident to them. They took Nanuram in a tractor to the Police Station where Nanuram lodged the report Ex.P/17 in the same night at 8.15 PM, recorded by PW-12 Head Constable Gayaprasad. Nanuram was sent for medical examination and attended by PW-16 Dr. Prayag Narayan who issued MLC report Ex.P/18-A. During the course of treatment, Nanuram breathed his last in Ujjain District Hospital. From the District Hospital, Ujjain telephonic message was sent to Central Kotwali, Ujjain about the death of Nanuram upon which inquest was registered vide Ex.P/15-C, copy whereof Ex. P/15 was sent to Police Station Ingoriya where MURG Ex.P/20-A was registered. After inquest proceedings Ex.P/7 the dead body was sent for post-mortem examination and the same was conducted by PW-18 Dr. Anil Bhargava on 25-4-2001 in the morning at 10.00 A.M. The Post-mortem report is Ex.P/25. P/15 was sent to Police Station Ingoriya where MURG Ex.P/20-A was registered. After inquest proceedings Ex.P/7 the dead body was sent for post-mortem examination and the same was conducted by PW-18 Dr. Anil Bhargava on 25-4-2001 in the morning at 10.00 A.M. The Post-mortem report is Ex.P/25. PW-17 DSP Govindsingh reached on the spot and prepared spot map Ex.P/3. He also seized blood-stained and controlled earth from the spot. Broken bamboo and Babool sticks were also seized through seizure memo Ex.P/1. On disclosure statement of the appellant vide Ex.P/11 a bamboo stick and Babool wooden log were seized through seizure memo Ex.P/12. The seized articles were sent to the Forensic Science Laboratory and its report Ex.P/26. After completion of usual investigation, charge-sheet was filed by the Police for the offence punishable under section 302 of the Indian Penal Code and section 3(2)(v) of the SC and ST (Prevention of Atrocities) Act, 1989. 3. The appellant abjured his guilt and pleaded his false implication, because Nanuram was suspended from his services of Watchman in the Gram Panchayat and while passing this proposal the appellant was also present in the Gram Panchayat. The learned trial Court, after examining the prosecution and defence witnesses, while acquitting the appellant from the charges under section 3(2)(v) of SC and ST (Prevention of Atrocities) Act convicted and sentenced him under section 302 of the Indian Penal Code as indicated hereinabove. 4. Learned counsel for the appellant has submitted that the solitary eye witness PW-3 Kaluram cannot be relied upon being the son of the deceased. He also pointed out that in the Postmortem report Ex.P/17 as well as in the statement of PW18 Dr. Anil Bhargava on the person of the deceased, three incised injuries were found and the prosecution has failed to explain as to how these injuries could be sustained by the deceased when the appellant did not use any sharp edged weapon and that the deceased was no taken to the hospital situated in Ingoriya itself, because Nanuram was already dead and if the deceased would have been taken to Ingoriya Hospital, this could have been declared by the doctor of Ingoriya hospital. Learned counsel, in the last has submitted that false case has been concocted by the prosecution against the appellant and FIR was not lodged by the deceased. Learned counsel, in the last has submitted that false case has been concocted by the prosecution against the appellant and FIR was not lodged by the deceased. He placed reliance on a Supreme Court judgment rendered in the case of Moharsingh and others vs. State of Punjab, AIR 1981 SC 1578 . 5. On the other hand, learned Dy. Advocate General Shri Girish Desai, appearing for the State, has supported the impugned judgment and finding of the learned trial Court and submitted that there is no reason available on record to discard the testimony of the eye witness Kaluram and the First Information Report lodged by the deceased as well as the name of the assailant disclosed by the deceased immediately after the incident to the witnesses who had reached to him. 6. Having heard learned counsel for the parties and after perusing the entire record carefully, we are of the opinion that there is no substance in the appeal of the appellant. 7. Homicidal death of deceased Nanuram has not been challenged by the learned counsel for the appellant. Even otherwise, it has been fully proved by the evidence of PW-18 Dr. Anil Bhargava as well as by the post-mortem report Ex.P/25. Therefore, we have not discussed the same in detail herein. 8. The First Information Report Ex.P/17 was lodged by the deceased himself at the Police Station. The distance of Police Station from the place of incident/village is shown as 8 K.M.s After recording the report of the deceased by PW-12 Head Constable Gayaprasad (Ex.P/17), Nanuram was immediately taken to the Ujjain District Hospital where he was examined by PW-16 Dr. Prayag Narayan Verma at 10.35 PM. Dr. Verma found then deceased alive, but he was serious. Dr. Verma has nowhere stated in his statement as also in his report that the deceased was unconscious. In cross-examination para 6, he denied that because of his negligence Nanuram died and also pointed out at the case-sheet about treatment given to the deceased. He also denied the alternative suggestion given by the defence that the deceased was brought in dead condition to him and he prepared medical documents under pressure. Dr. Verma on external examination found five major injuries on the person of the deceased. Injury No. 1 was a lacerated wound on the skull. He also denied the alternative suggestion given by the defence that the deceased was brought in dead condition to him and he prepared medical documents under pressure. Dr. Verma on external examination found five major injuries on the person of the deceased. Injury No. 1 was a lacerated wound on the skull. Bone was visible, injury No. 2 was a fracture of tibia and fibula bone, No. 3 was fracture of left leg, No. 4 fracture of left upper arm and No. 5 was fracture of right fore-arm. For injuries No. 3, 4 and 5 he suggested for X-Ray examination. He admitted the patient in the ward and suggested for calling the RSO (Surgery). In his opinion, the injuries could be caused by hard and blunt object and nature of injuries could be opined by the RSO (Surgery). He proved the medical report of Nanuram vide Ex.P/18-A. He also proved the query Ex.P/23 and overleaf the query made by the police he gave opinion Ex.P/23-A that the injuries could be caused by SALIA and Bamboo-stick which were sent to him by the police. In cross-examination, he deposed that the condition of the patient was not good. He was being given oxygen and he gave him cardiac massage, therefore, he did not mentioned in his report the other minor injuries sustained by the deceased. He also admitted that except the head injury other injuries were not on the vital part of the body. On the basis of the statement of Dr. Verma who examined the deceased in the night at 10.35 PM, it is crystal clear that the deceased was alive and was also not unconscious. Thus, we do not find any force in the submission of the learned counsel for the appellant that after sustaining injuries, the deceased could not remain in conscious condition and also could not talk with his relations and other persons who had reached on the spot immediately as well as could not lodge the First Information Report Ex.P/17. 9. Learned counsel for the appellant placed much reliance on the judgment of Moharsingh and others (supra). In this case of Moharsingh and others, the Apex Court has discarded the Dying Declaration of the deceased Ex.P/19, because at the time of admission in the hospital, blood-pressure of the deceased was 60/40 mm. of Hg. and pulse rate was 100 per minute. Learned counsel for the appellant placed much reliance on the judgment of Moharsingh and others (supra). In this case of Moharsingh and others, the Apex Court has discarded the Dying Declaration of the deceased Ex.P/19, because at the time of admission in the hospital, blood-pressure of the deceased was 60/40 mm. of Hg. and pulse rate was 100 per minute. The evidence also showed that he was in a state of shock. The deceased had suffered as many as 21 injuries on various parts of his body. On the basis of this medical report, the detailed and graphic narration of the entire history of the case starting from motive, enmity and minutest feature of assault including individual act committed by the appellants could not be made. Deceased had also mentioned that the appellants assaulted him by Kassi (pick axe), but the eye witness's account was directly in conflict with the dying declaration that the deceased was not attacked with Kassi, but by spade. The Supreme Court has given finding that "in view of the detailed and extremely coherent feature of the dying declaration we find it impossible to believe that the deceased even if conscious would have made such a detailed statement." The Supreme Court has also not relied on the eye witness's account because of direct conflict with the medical evidence. Again, in para 6, the Supreme Court has observed that "In view of this glaring inconsistency between the ocular and medical evidence, it will be extremely unsafe and hazardous to maintain the conviction of the appellants on such evidence." 10. The facts of Moharsingh's case (supra) are altogether different than the facts of the case at hand. In Moharsingh's case, the deceased was assaulted by several accused persons. When he was examined first in point of time, he was in the state of shock and the eye witness's account was at variance with the medical evidence. Looking to the number and nature of injuries, medical evidence and the detailed dying declaration, the Supreme Court did not accept the prosecution case and the appellants who were more than one, were acquitted. In the instant case, the deceased was assaulted only by the appellant. He was not in serious condition or in shock at the time of lodging of the report in the same night at 8.45 PM. In the instant case, the deceased was assaulted only by the appellant. He was not in serious condition or in shock at the time of lodging of the report in the same night at 8.45 PM. The deceased Nanuram was immediately taken from Ingoriya to Ujjain, because Ujjain is a district place having District Hospital in comparison to Public Health Centre, Ingoriya where the doctor was not available in the night according to the statement of Head Constable Gayaprasad (PW-12), who had recorded the First Information Report Ex.P/17 and also proved the same. When the deceased was examined by Dr. Verma after more than one hour of lodging of the First Information Report even at that time, his blood pressure was 100/80 mms of Hg. whereas in the case of Moharsingh and others (supra) the blood pressure of the deceased was 60/40 mms of Hg. and the deceased was in the state of shock while in the case at hand Nanuram was not in the state of shock, but according to the opinion of Dr. Verma, his condition was serious. 11. We have also carefully gone through the First Information Report Ex.P/17 lodged by the deceased Nanuram himself wherein the main contents of the incident were narrated by the deceased in eight to ten lines. In this case, the deceased was assaulted by only one accused whereas in the case of Moharsingh and others (supra), number of accused persons had assaulted the deceased and in the dying declaration the deceased mentioned the names of all the accused persons coupled with their specific overt acts, weapons and other materials, because of which, the Supreme Court found that looking to the condition of the deceased as per medical report, the detailed and minute narration on each and every point could not be possible for the deceased to give to the scribe of the dying declaration. 12. In the case at hand, learned counsel for the appellant has argued at one place that minute and detailed narration has been given by the deceased in the First Information Report and at the same time, he has also pointed out material omission in the First Information Report with regard to the name of the eye witness of Kaluram, son of the deceased. It is true that the name of Kaluram is not mentioned in the First Information Report whereas it is specifically mentioned that the deceased raised cry which attracted his son Antar Singh and witnesses Ganpat, Bahadur and others. Because of this omission, we are of the considered view that if Kaluram reached on the spot near the deceased as he stated, and thereafter, he went back to the village and brought Antarsingh, Ganpat, Bahadur and other villagers, is not acceptable on broad probabilities, human nature and conduct. Whether Kaluram had witnessed the incident or not, the deceased could not say any thing in his report, because he could not be in a position to see as to who were present surrounding the place of incident and witnessing the same. If FIR was not lodged by the deceased and brought into existence by the Investigating Agency in ante date and time, in that event they would have not failed to mention the name of Kaluram as eye witness. This material omission shows that FIR was lodged by the deceased and he had not seen Kaluram as a person witnessing the incident. But, he mentioned that on his cry, Antar, Ganpat and Bahadur had reached over there. Under this situation, we do not consider it fit to place reliance on the testimony of Kaluram (PW-3) as an eye witness of the incident. But, merely because of disbelieving Kaluram, the entire prosecution case cannot be discarded. The First Information Report Ex.P/17 lodged by the deceased is a fully reliable document and after the death of the deceased, it is admissible as a Dying Declaration as per provision under section 32(1) of the Indian Evidence Act as it is disclosing the cause of death of the deceased and other circumstances and transaction relating to the cause of death. 13. The Autopsy Surgeon PW-18 Dr. Anil Bhargava on post-mortem examination, found 15 external injuries on the person of the deceased. Except the injury on the head all other injuries were on both hands, legs and thigh. This is true that Dr. Bhargava found three incised injuries, but on examination of seized bamboo stick (Article-A) and SALIA (Article-B) having some sharp and pointed edges, he opined in paras 10 and 11 of his deposition that the incised injuries could be caused by the pointed and sharp edges of bamboo-stick and SALIA. In the opinion of Dr. This is true that Dr. Bhargava found three incised injuries, but on examination of seized bamboo stick (Article-A) and SALIA (Article-B) having some sharp and pointed edges, he opined in paras 10 and 11 of his deposition that the incised injuries could be caused by the pointed and sharp edges of bamboo-stick and SALIA. In the opinion of Dr. Anil Bhargava, the deceased died because of excessive bleeding from the injuries and fracture due to shock and deceased died within 24 hours from the date and time of post-mortem examination i.e. 25-4-2001 at 10.00 AM. He also found fracture of right parietal bone and underneath the bone, extra sub-dural haematoma. In cross-examination para 8, he deposed that it cannot be said as to after how much time the deceased would have fallen in shock because of clotting of blood. Therefore, there is no medical evidence available in this case that immediately after sustaining the injuries, the deceased would have become unconscious or would have fallen in shock as a result of which, he could not speak. 14. The Investigating Officer DSP Govindsingh (PW17) seized the bamboo-stick and Babool SALIA from the possession of appellant vide seizure memo Ex.P/12 in presence of independent witnesses PW-7 Chhitu alias Sitaram and PW-8 Ganpat. Both these witnesses had put their signatures on the seizure memo at portion marked A to A and B to B, but turned hostile to the prosecution. The Investigating Officer Govindsingh (PW-17) has stated that the bamboo-stick and Babool SALIA were seized from the appellant in presence of the aforesaid two witnesses who had put their signatures on seizure memo Ex.P/12. There appears no reason for disbelieving the testimony of the Investigating Officer. 15. Apart from the dying declaration/FIR Ex.P/17, we are having the statement of three witnesses namely PW-4 Antarsingh, PW-6 Bahadur and PW-8 Ganpat who have deposed that they reached immediately on the spot and the deceased disclosed the name of the appellant as the assailant of the deceased. Prosecution has also examined PW-1 Rama, PW-2 Heeraji and PW-5 Mangu as witnesses of oral dying declaration, but all these witnesses have turned hostile. On careful perusal of the statement of Antar Singh, Bahadur and Ganpat, we find a ring of truth with regard to the disclosure of the name of the appellant as perpetrator of crime to them by the deceased. On careful perusal of the statement of Antar Singh, Bahadur and Ganpat, we find a ring of truth with regard to the disclosure of the name of the appellant as perpetrator of crime to them by the deceased. We can usefully refer the judgments of the Supreme Court passed in the case of Prakash vs. State of M. P., AIR 1993 SC 65 and Vishram vs. State of M. P., AIR 1993 SC 250 . In both these judgments, the Supreme Court has placed reliance on the oral dying declaration and held that the victim lived for half an hour after the assault and in absence of medical evidence, to indicate that he was not in a position to make dying declaration and victim was knowing the assailant, it is reasonable to expect that the deceased would give the name of the assailant to his family members at first opportunity. The case at hand is on better footing. The deceased Nanuram was assaulted at 7.30 PM and died in the District Hospital, Ujjain in the same night at 11.15 PM after four hours. (See : Para 1 of PW-9 Pooransingh as well as MURG report (Ex.P/15). It is pertinent to mention here that in the First Information Report, the deceased has mentioned the disclosure about the incident to Antarsingh, Ganpat and Bahadur and other villagers. Thereafter, he was taken to the Police Station in a tractor. 16. On overall assessment and appreciation of the evidence available on record, we do not find any material to discard the contents of the First Information Report Ex.P/17 which is admissible as dying declaration of the deceased and the name of the appellant as assailant disclosed immediately after the incident to the witnesses Antarsingh, Bahadur and Ganpat. The Supreme Court, in the case of Ghanshyamdas vs. State of Assam, (2005) 13 SCC 387 while considering the veracity of oral dying declaration in para 4 observed that :- "The most incriminating evidence in this case is the dying declaration made by the deceased to PW-4. After uttering the words that Ghanshyam "cut him" the victim became unconscious. It may be recalled that PW-4 was with the deceased till they parted company to go to their respective houses and within a few, minutes thereafter, the incident had happened. After uttering the words that Ghanshyam "cut him" the victim became unconscious. It may be recalled that PW-4 was with the deceased till they parted company to go to their respective houses and within a few, minutes thereafter, the incident had happened. There is absolutely no reason why PW-4 would come forward to give a false version to implicate the accused. The oral dying declaration made to PW-4 was believed by the trial Court as well as by the High Court. In the FIR lodged without delay, the oral dying declaration was specifically mentioned." 17. In the instant case also, the deceased disclosed the name to the witnesses as also mentioned in the First Information Report lodged by him without any delay. 18. Consequently, in view of the foregoing discussion, we do not find any substance warranting indulgence by this Court in the judgment and finding recorded by the trial Court. The appeal of the appellant is hereby dismissed.