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2007 DIGILAW 890 (MP)

Manohar S/O Bhanwarji v. State Of M. P.

2007-08-14

A.K.SHRIVASTAVA, SUSHMA SHRIVASTAVA

body2007
JUDGMENT : A. K. SHRIVASTAVA, J. Feeling aggrieved by the judgment of conviction and order of sentence dated 11-3-1998 passed by learned II Additional Sessions Judge, Sehore in Sessions Trial No. 42/97 convicting the appellant under section 302, Indian Penal Code and sentencing them to suffer life imprisonment and fine of Rs. 5000/-, in default, further R.I. of two years, this appeal has been filed under section 374(2), Criminal Procedure Code. 2. In brief the case of prosecution is that at 12.00 in the afternoon on 25-11-1996 Chandu alias Chandrashekhar was on the eastern side of the field, namely Shikarpur, his brother Babulal (in short 'the deceased') was going from the western side of the mound (Merh) and was going to home. At that juncture, all the accused persons were ploughing the field. On seeing the deceased all the accused persons with common object to kill the deceased assembled. It is said that appellant Manohar dealt the blow of axe on the neck region of the deceased and appellant Dwarka caused injuries by sword. Acquitted co-accused Prem dealt Ballam blow and other accused persons caused injuries by Parena to the deceased as a result of which deceased fell down in the field. On seeing the incident Chandrashekhar screamed to rescue his brother but all the accused persons rushed towards him, as a result of which this witness ran away from the place of occurrence and narrated the incident to certain persons of the village. 3. The First Information Report Ex.P/18 was lodged by PW-6, Chandu @ Chandra Shekhar who is also an eye-witness. On lodging of the First Information Report the criminal law was set in motion. A case was registered against the accused persons. The investigating agency arrived at the spot; seized ordinary and blood stained earth; seized the dead body and sent it for post-mortem; prepared the spot map; recorded the statement of the witnesses; arrested the accused persons and seized the axe from the possession of Manohar and sword from the possession of Dwarka and after completing the investigation submitted a charge-sheet in the competent Court which on its turn committed the case to the Court of Session and from where it was received by the trial Court for its trial. 4. 4. The trial Judge on the basis of the averments made against all the accused persons in the charge-sheet framed charges including appellants under section 148, 302/149 of IPC. Needless to emphasize, all the accused persons including appellants abjured their guilt and requested for the trial. 5. In order to bring home the charges the prosecution examined as many as 12 witnesses and placed Ex.P/1 to P/37 the documents on record. The defence of accused persons is of maladroit implication, however, they did not choose to examine any witness in support of their defence. The learned trial Court on the basis of evidence placed on record came to hold that except present appellants, all other accused are entitled to benefit of doubt as a result of which acquitted them. However, according to learned trial Court since there is clinching evidence against the present appellants, eventually they have been convicted under section 302 of Indian Penal Code and have been directed to suffer the sentence which we have mentioned hereinabove. 6. In this manner, the present appeal has been filed by the appellants. 7. It has been argued by Shri Sakle, learned counsel for appellants that the evidence of PW-5 Babulal, PW-6, Chandu @ Chandra Shekhar and PW-7, Parwat are not worth reliable and, therefore, the learned trial Court erred in convicting the appellants. By inviting our attention to the testimony of autopsy surgeon Dr. B. K. Choudhary (PW-12), it has been argued that there is only one incised wound on the neck region of the deceased and therefore only one person has caused the incised wound and therefore the benefit of doubt should be extended to both the appellants. 8. On the other hand, Shri Modh, learned Dy. Advocate General argued in support of the impugned judgment and has contended that according to the testimony of PW-6, Chandu @ Chandra Shekhar para 26, it is gathered that appellant Dwarka caused injury by sword on the cheek and jaw region which is also corroborated by his FIR (Ex.P/18) and, therefore, the trial Court did not err in convicting both the appellants under section 302 IPC. According to learned Dy. Advocate General, this appeal has no merit and the same be dismissed. 9. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 10. According to learned Dy. Advocate General, this appeal has no merit and the same be dismissed. 9. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 10. In the present case, the prosecution has examined three persons as witnesses, they are PW-5 Babulal, PW-6, Chandu @ Chandra Shekhar and PW-7, Parwat. We shall now examine their testimony one by one. 11. PW-5, Babulal who is an independent witness has categorically stated that appellant Manohar was having an axe and appellant No. 2 Dwarka was having a sword, the other acquitted accused persons were having Ballam and Parena. It has been stated by this witness that all the accused persons caused injuries to the deceased as a result of which he fell down in the field. Nowhere he has stated that Manohar caused injury by axe nor it has been stated by him that Dwarka caused injury by sword. His evidence is of general character and omnibus, therefore, we are not placing reliance on the testimony of this witness. 12. The evidence of PW-6 Chandu @ Chandra Shekhar is quite relevant. This witness is also the author of FIR and is the brother of the deceased. Merely because this witness is brother of the deceased, his evidence should not be rejected, but, law in that regard is well settled in this regard that his evidence is to be scrutinized with great care and caution and, therefore by adopting the said principle in our mind, we shall now examine the testimony of this witness. According to this witness, appellant Manohar was carrying an axe and appellant Dwarka was having sword. Manohar caused injuries to the deceased by an axe which landed on neck region and appellant Dwarka also caused injury by sword, but this witness has not at all stated that on which part of the body Dwarka caused injury by sword. True, in cross-examination para 26 he has stated that appellant Dwarka caused injury on the cheek and jaw (mandible) region of the deceased by sword. But, on going through the evidence of Dr. B. K. Choudhary (PW-12), who is the autopsy surgeon and also going through the post-mortem report (Ex.P/24), we do not find any incised injury either on the cheek or on the mandible region. But, on going through the evidence of Dr. B. K. Choudhary (PW-12), who is the autopsy surgeon and also going through the post-mortem report (Ex.P/24), we do not find any incised injury either on the cheek or on the mandible region. On the contrary the injury on the cheek is found to be a laceration. But, the testimony of this witness so far as implication of appellant Manohar is concerned, is clear, cogent and trustworthy. This witness was cross-examined at length but he remained vivid despite there being a roving cross-examination over him. This witness has also proved the FIR (Ex.P-18) which was lodged by him. According to us the evidence of this witness can be placed reliance against applicant Manohar, but, not against Dwarka. 12-A. The other witness is PW-7, Parwat. This witness has also stated that appellant Manohar was having an axe and Dwarka was having sword in his hand and these persons were causing injuries to the deceased. Though it has not been stated by this witness that on which part of the body appellant Manohar caused injury but it has come in the testimony of this witness that Manohar was having an axe with him. 13. After careful examination of the testimony of all these three witnesses, we are of the view that the evidence of PW-6 Chandu @ Chandra Shekhar is worth reliable so far as the implication of appellant Manohar is concerned. We do not find the evidence of any of the eye witness to be reliable so far as the appellant Dwarka is concerned. True it has come in the testimony of PW-6 Chandu @ Chandra Shekhar that Dwarka caused injury on the cheek and mandible region of the deceased but there is no injury by sword as the doctor did not find any incised wound on the mandible and cheek region of the deceased. According to the autopsy surgeon Dr. B. K. Choudhary (PW-12) and his post-mortem report is Ex.P-24, the deceased sustained following four injuries : (i) Incised wound over left side of neck. Near about whole neck cut. Wound extended from left side to right side of neck 7"x 4"½" x Artery, vein, muscles and bone cut. (ii) L/w over frontal bone of skull 1"x1" size (iii) L/w over left side of cheek 1"½" x 2" size. Near about whole neck cut. Wound extended from left side to right side of neck 7"x 4"½" x Artery, vein, muscles and bone cut. (ii) L/w over frontal bone of skull 1"x1" size (iii) L/w over left side of cheek 1"½" x 2" size. (iv) L/w over left tip of thumb "¼" x 12" size." On going through abovesaid injuries, it is as clear like a noon day that there is only one incised wound on the neck region and that is attributed to Manohar and there is definite evidence of PW-6, Chandu @ Chandra Shekhar in that regard. Since there is no incised wound on any other part of the body and there is only single incised wound on the person of the deceased, therefore, implication of appellant Dwarka becomes doubtful. The Supreme Court in the case of Thaman Kumar vs. State of Union Territory of Chandigarh, (2003) 6 SCC 380 in para 16 has held as under :- "16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony." According to us the decision of Thaman Kumar (supra) is squarely applicable in the present factual scenario. 14. Since there is only one incised wound on the neck region which is attributed to Manohar as he caused injury by axe to the deceased and there is no other incised wound on the person of the deceased, therefore, we are of the considered view that appellant Dwarka caused any injury by sword becomes doubtful and his presence also becomes doubtful in view of the decision of the Apex Court Thaman Kumar (supra). So far as the implication of appellant Manohar is concerned, we are of the view that he has committed the offence under section 302 of Indian Penal Code. Looking to the nature of the injury caused by axe as the artery, vein, muscles and bone were chopped, we have no scintilla of doubt that appellant Manohar has committed the offence of culpable homicide amounting to murder. In this context, we may profitably rely to the decision of Supreme Court State of Rajasthan vs. Dhool Singh AIR 2004 SC 1264 . The conviction of appellant Manohar and the sentence awarded to him by learned trial Court is hereby affirmed. However, we extend our benefit of doubt to appellant No. 2 Dwarka. 15. Resultantly, this appeal succeeds in part. The judgment of conviction and order of sentence against appellant Manohar passed by learned trial Court is hereby affirmed, however, the judgment of conviction and order of sentence awarded to Dwarka is hereby set aside by extending the benefit of doubt to him and his appeal is allowed. Appellant No. 2 Dwarka is on bail, his bail bonds are discharged.