Research › Search › Judgment

Madhya Pradesh High Court · body

2008 DIGILAW 833 (MP)

RAM SINGH v. STATE OF M. P.

2008-07-08

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
Judgment S.K.KULSHRESTHA, J. ( 1. ) THE convicted appellants have filed this appeal under Section 374 of the Code of Criminal Procedure, against the judgment dated 29th May, 2003, of the learned 1st Additional Sessions Judge, Barwani, in Sessions Trial No, 366/2002, by which they have been convicted under Section 323/34 and each has been sentenced to rigorous imprisonment for six months and fine of Rs. 100/- for causing hurt to Babla (PW 2) and under Section 302 read with Section 34 and sentenced to imprisonment for life and fine of Rs.1,000/- for voluntarily causing death of Gavdiya @ Govind. ( 2. ) The case of the prosecution discloses that on 29/9/2002, at about 5:30 p.m., Babla (PW 2) and deceased Gavdiya had gone to the village Barwani for weekly market and on return when they alighted from the Bus, accused Gangaram Bhilala, Ramsingh Bhilala resident of Gavla Bedi and Lala @ Lalu Bhilala and Silder @ Gildar resident of Dhaba Bavdi and two others started pelting stones at the deceased and the complainant Babla. When they rushed towards the hedge to save themselves from the onslaught, while Babla (PW 2) could manage to jump over the hedge, Govind was unable to do so. Gangaram and his companions then caught hold of him and dragged him up to the house of Gopal. All of them then started pelting stones at him stating that he should not be left alive as he had committed murder of Jhetra, father of accused Gangaram. On account of the pelting of the stones and striking him from a close range, the deceased died instantaneously. It was stated that in the year 1999 a case of murder of Jhetra was launched against deceased Govind and Babu, and actuated by the said past enmity, the said offence was committed. ( 3. ) A report of the incident Ex.P/2 was lodged by Babla (PW 2) at P.S. Barwani, on the basis whereof a case u/S. 302 r/w. Sec. 34 of the IPC was registered. The complainant was promptly sent for medical examination and his injuries were seen by Dr. P. S. Thakur (PW 1), who gave report Ex.P/1. As per this report, the complainant Babla had received one lacerated wound on the right side of chest, size 2 1/2 cm x Vz cm x subcutaneous tissue deep and a haemotoma on the left side. The complainant was promptly sent for medical examination and his injuries were seen by Dr. P. S. Thakur (PW 1), who gave report Ex.P/1. As per this report, the complainant Babla had received one lacerated wound on the right side of chest, size 2 1/2 cm x Vz cm x subcutaneous tissue deep and a haemotoma on the left side. of back, 2 1/2 x 2 cms. Both the injuries were simple and caused by hard and blunt object, within 24 hours. In further sequel of investigation the body of deceased Govind was sent to the District Hospital for post-mortem after the inquest was completed. The post mortem was carried out by Dr. Sharadchandra Purohit (PW 8) who gave report Ex.P/14. As per the testimony of Dr. Purohit and the report Ex.P/14, the following external injuries were found on the body : (1) Abrasion on right dorsum of hand 1" x 1" (2) Lacerated wound on left side of cheek, in front of pinna 2" x 1" x bone deep; (3) pinna torn into two pieces; (4) Right pinna torn into three pieces and lobe crushed; (5) Lacerated wound over right frontal region 2" x 1" x bony deep with bone fracture; (6) Lacerated wound over mid of parietal region 3" x 1" x bony deep, fracture felt by fingers; (7) Lacerated wound over occipital region 4" x 2" x bony deep, fracture felt by fingers; (8) Mandible in two pieces; (9) Nasal bone and front upper teeth fractured. In the opinion of the Autopsy Surgeon, cause of death was coma due to multiple fracture of skull bone and injury to brain matter. ( 4. ) In further investigation, spot map was prepared, blood stained stones were seized from the spot, the blood stained and control earth were seized and the articles used in causing the injury were seized. ( 5. ) On accused being prosecuted, charges u/Ss. 323/34 and 302/34 were framed. The accused persons denied the charges and stated that because the deceased and Babla (PW 2) were facing a case for the murder of Jhetra, they had been falsely implicated while they were innocent. The learned Addl. Sessions Judge, however, convicted the appellants of the charges as hereinabove stated. It is against this conviction and sentence that the appellants have appealed to this Court. ( 6. ) Learned sr. The learned Addl. Sessions Judge, however, convicted the appellants of the charges as hereinabove stated. It is against this conviction and sentence that the appellants have appealed to this Court. ( 6. ) Learned sr. counsel for the appellants submits that although the prosecution has examined 11 witnesses and out of these witnesses, Babla @ Babu (PW 2), Rajaram (PW 3) and Gopal (PW 6) were examined as eye witnesses, except for Babla @ Babu (PW 2), himself injured in the incident itself, no other eye witness has supported the case of the prosecution. It is in this backdrop that the learned sr. counsel submits that the case totally hinges on the testimony of Babla (PW 2), who cannot be believed as his testimony is replete with improbabilities, inconsistencies and discrepancies which render it thoroughly unreliable. Learned Dy. Advocate General, per contra, has pointed out that Babla (PW 2) was himself injured in the incident, as deposed to by Dr. P.S. Thakur (PW 1) and as revealed by MLC Report Ex.P/1. Under these circumstances, it cannot be doubted that Babla was present and he had witnessed the incident. Thus, even on the basis of the test that the evidence should be of sterling quality in the case of a single witness, the testimony of Babla (PW 2) stands the scrutiny and conviction based on his testimony and the other attending circumstances, does not call for any interference. ( 7. ) It has not beenxlisputed that Gavdiya @ Govind has met a homicidal death. Even otherwise, the inquest held by S.R. Chopra (PW 11), Investigating Officer, coupled with the photographs taken by Kewal (PW 9) and the post mortem report given by Dr. Sharadchandra Purohit (PW 8), leave no manner of doubt that Gavdiya @ Govind has died and that his death was homicidal. The only question that survives for our consideration, therefore, is as to whether the accused persons can be convicted for the offence alleged. It has also been submitted by the learned counsel that in the most unlikely event of it having been found that the prosecution has succeeded in proving the acts of the appellants, the offence would not fall within the description of an offence punishable u/S. 302 of the IPC, ( 8. ) We have already referred to the post mortem report and the eight injuries sustained by the deceased. ) We have already referred to the post mortem report and the eight injuries sustained by the deceased. We have also referred to Ex.P/1, injury report of Babla (PW 2). It is, therefore, desirable to first consider the testimony of the eye witnesses. ( 9. ) Babla (PW 2) in his deposition has stated that he knew all the accused persons. He has stated that when they returned to the village and alighted from the Bus, they noticed Ramsingh s/o Narain, Gildar s/o Sildar, Lala and Gangaram along with two unknown persons. As they got down, Lala assaulted with the stick and the rest of them started throwing stones. They tried to save their lives by running away, but since the deceased could not cross the hedge, he was belaboured by the accused persons. A shortwhile later when he returned, he found that Govind was lying dead on the ground. He has deposed that Govind and accused persons were not on good terms. In this behalf the prosecution has also led evidence about the past report against the deceased and this witness by examining R.B.Tiwari (PW 10), Sub-Inspector. He rushed to the Police Station and lodged the report. He has stated that on account of non-availability of transport, though he reached the Police Station at 9:00, but as another serious incident had taken place in which, the police had got entangled, his report Ex.P/2 was recorded later. Inquest was held in his presence of which inquest memo Ex.P/4 was prepared. Spot map Ex.P/ 5 and the seizure of stones from the place of the incident as also the samples of blood stained and control earth were taken vide Panchnama Ex.P/6. ( 10. ) In his cross examination, he has admitted that a case of murder of Jhetra was pending against him and deceased Govind and there was enmity for that reason. He has, however, tried to clarify that accused persons had falsely implicated them in that case and he had nothing to do with it. He has also admitted that accused Lala and Gildar were nephews of Jhetra whose murder case was pending against him. ( 11. ) Significantly, he has admitted that the stones were pelted from a distance of 50 paces and he could not say as to who were the other persons with the accused. He has also admitted that accused Lala and Gildar were nephews of Jhetra whose murder case was pending against him. ( 11. ) Significantly, he has admitted that the stones were pelted from a distance of 50 paces and he could not say as to who were the other persons with the accused. He saved his life by jumping the other side of the hedge, but since Gavdiya @ Govind could not cross, he got stalled. ( 12. ) The witness has stated that he had also been injured on account whacking of the stones. Dr. P.S. Thakur (PW 1) and his report Ex.P/1 indicating a lacerated wound on the right side of chest and a haemotoma on left side of back, corroborate him. ( 13. ) Though it is clear that on account of the report lodged against Babla (PW 2) and the deceased Gavdiya @ Govind, there was enmity between the parties, but, at the same time, nothing has been shown to indicate that the accused persons had the knowledge that the deceased and witness Babla would return by the Bus in question. It appears to be a coincidence that after they got down from the Bus, the pelting of the stones commenced which makes it doubtful that they had any foreknowledge or premeditation in this behalf. It appears that seeing them, the accused got infuriated and pelted stones at them. Though the witness has stated that the stones were hurled from 50 paces, it appears an exaggeration and it cannot be lost sight of that in view of the injuries found on the deceased and this witness, the stones must not have been thrown from a distance of 50 paces. However, the fact remains that stones were thrown from some distance and there being no evidence of the accused persons having come close to the deceased and pelted the stones and caused injuries on parietal and occipital region, it would be perilous to infer any intention on the part of the accused to cause death of Gavdiya @ Govind. They have, however, caused injury intentionally knpwing full well that the injuries were likely to cause death. ( 14. ) Weapons seized from the accused persons were sent to the Forensic Science Laboratory, but the report was not received. Under these circumstances, seizure of weapons does not entail any consequence incriminating the accused persons. ( 15. They have, however, caused injury intentionally knpwing full well that the injuries were likely to cause death. ( 14. ) Weapons seized from the accused persons were sent to the Forensic Science Laboratory, but the report was not received. Under these circumstances, seizure of weapons does not entail any consequence incriminating the accused persons. ( 15. ) From the evidence of the solitary eye witness Babla @ Babu (PW 2), who was himself injured, the medical report of Babla @ Babu and the Autopsy Report of Gavdiya @ Govind and the other circumstances present on record, we are convinced that though the injuries found on the deceased and on the witness Babla @ Babu had been caused by the accused persons, since the intention to cause death was not present and the incident started unexpectedly in which only stones were pelted though the witness has modulated the story and stated that Lala had caused injuries by means of a Lathi, we are of the considered view that the offence would not travel beyond an offence u/S. 304 Part I of the IPC as the injuries intended were likely to cause death. Under these circumstances, the conviction of the four appellants for the offence u/S. 302 r/w. Sec. 34 of the IPC, is set aside and they are, in stead, found guilty of offence punishable u/S. 304 Part I of the IPC. However, conviction and sentence awarded to the appellants u/S. 323/34 do not call for any interference. ( 16. ) In the result, the appeal partly succeeds. The conviction of the appellants under Section 302/34 of the IPC and the sentence passed thereunder is set aside and the appellants are, in stead, convicted under Section 304 Part I of the Indian Penal Code and each is sentenced to rigorous imprisonment for a period of 7 (seven) years and fine of Rs. 1,000/- (Rs. One thousand). In default of payment of fine, the accused in default, shall suffer further rigorous imprisonment for a period of six months. The substantive sentences shall run concurrently. Appeal partly succeeds.