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2009 DIGILAW 598 (MP)

Mangilal S/o Nanda Dangi v. State Of M. P.

2009-05-05

S.L.KOCHAR, S.S.DWIVEDI

body2009
JUDGMENT : S.L. KOCHAR, J. The appellants stood convicted under section 302 of the Indian Penal Code and each is sentenced to suffer imprisonment for life and fine of Rs. 500/-, in default of payment of fine to suffer additional R.I. for one month vide judgment dated 23-9-2003 passed by the learned Sessions Judge, Mandsaur in Sessions Trial No. 162/2002. Aggrieved by this judgment of conviction and order of sentence, the appellants have preferred this appeal under section 374 of the Code of Criminal Procedure. 2. According to the prosecution case on 16-8-2002 in the evening at 5.00 PM, appellants stopped deceased Ramlal near the hand-pump situated in village Rati Talai and assaulted him by lathis. The incident was witnessed by PW-1 Karulal, PW-4 Radheshyam, PW-9 Mangilal and Bherulal. Mangilal immediately gave intimation to Bajeram (alias Baje Singh) (PW-5), son of deceased and wife Ratanbai (PW-3). PW-3 Ratanbai with the help of other persons took the deceased in a bullock-cart to the Police Station, Nahargarh and lodged the First Information Report Ex.P/12. It is said that Shyamubai, the wife of appellant Mangilal was earlier married with one Mohan Dangi. After marriage, she had gone to the house of Mohan Dangi twice and thereafter stayed at her parents' house. Santoshbai, daughter of Shyamubai was married with Ganesh, the son of deceased Ramlal. Mangilal was already married and Shyamubai was his second wife. He was having one son from his first wife, but they were not residing with Mangilal because of which Mangilal entered into second marriage with Shyamubai. After some time, first wife of Mangilal named Anokhi alias Awanti returned back to Mangilal because of which from time to time Shyamubai used to visit village Napakhedi. The appellant Mangilal was having doubt that deceased Ramlal and his family members were instigating Shyamubai to go to Napakhedi because of which he was annoyed with Ramlal and on the date of incident Ramlal was assaulted by appellants Mangilal, Kailash and Prabhu. After recording the First Information Report Ex.P/12, Ramlal was sent to the hospital for medical examination where he was medically examined by PW-8 Dr. B.S. Bhati who issued his Medico Legal Certificate (For short the MLC) and at that time patient Ramlal was already dead. Dr. Bhati also performed post-mortem on the body of deceased Ramlal and gave post-mortem examination report Ex.P/24. B.S. Bhati who issued his Medico Legal Certificate (For short the MLC) and at that time patient Ramlal was already dead. Dr. Bhati also performed post-mortem on the body of deceased Ramlal and gave post-mortem examination report Ex.P/24. Police commenced investigation and arrested the appellants and on their disclosure statements, seized Lathi. I.O. after recording the statements of the prosecution witnesses acquainted with the facts of the case and on completion of investigation, charge-sheeted the appellants for commission of the offence punishable under section 302/34 of the Indian Penal Code. 3. Appellants denied the charges and they examined DW-1 Gopal Singh Head Constable in their defence to prove the report lodged by Mangilal Ex. D/3 and medical report Ex.D/4. Learned trial Court finding the appellants guilty, convicted and sentenced them as mentioned hereinabove. 4. We have heard learned counsel for the parties and also perused the entire record carefully and we are of the opinion that the appellants No. 1 and 2 Mangilal and Kailash are liable for conviction under section 302 read with section 34 of the Indian Penal Code and conviction of appellant No. 3 Prabhu is not sustainable, because of lack of legal evidence against him. 5. It emerged from the record that the learned trial Court mainly relied upon the testimony of PW-9 Mangilal and sought corroboration to his statement by PW-1 Karulal and PW4 Radheshyam as well as the medical evidence of Dr. Bhati. 6. PW-1 Karulal and Radheshyam (PW-4) have deposed that they had witnessed the assault on the person of deceased Ramlal by lathi only by appellants No. 1 Mangilal and No. 2 Kailash and appellant No. 3 Prabhu was not present on the scene of occurrence. The prosecution has declared this eye-witness hostile only for appellant No. 3 Prabhu and cross-examined by the prosecutor on the same day i.e. 6-1-2003. Counsel for the appellants Prabhu and Mangilal also cross-examined both the witnesses, but cross-examination on behalf of appellant No. 2 Kailash was deferred and same was completed on 6-5-2003 i.e. after about four months. In this cross-examination, PW-1 Karulal has deposed that he had not seen the incident and he had also not seen Ramlal lying on the spot. He was not knowing anything about assault on Ramlal and he had also not given any statement to police. In this cross-examination, PW-1 Karulal has deposed that he had not seen the incident and he had also not seen Ramlal lying on the spot. He was not knowing anything about assault on Ramlal and he had also not given any statement to police. He has also stated that earlier he had given statement before the Court at the instance of family members of Ramlal. PW-4 Radheshyam was examined on 6-1-2003 and in examination-in-chief he has stated specifically that the appellants Mangilal and Kailash assaulted the deceased Ramlal by lathis. He was accompanied by PW-1 Karulal while they were going from village Peedwas to village Rati Talai. They had seen both the appellants assaulting Ramlal by lathis near hand-pump of village Rati Talai. PW-4 Radheshyam has also specifically stated that the deceased sustained injuries on his head, legs, chest, abdomen and blood was trickling from his injuries. After assaulting the deceased Ramlal, appellants left the deceased on the spot and went away on a motorcycle towards the village. He has also stated that the appellants threatened them not to disclose about the incident otherwise they would also be done to death. Radheshyam was also declared hostile by the prosecution for appellant Prabhu and was confronted with his case-diary statement Ex.P/13. In cross-examination by the defence counsel, nothing substantial has come out in the statements of both the witnesses. They were cross-examined on 6-1-2003. But when cross-examination was deferred on behalf of appellant Kailash and both were cross-examined after four months on 6-5-2003, they resiled from their earlier statements. Learned trial Court has placed reliance on these two witnesses for corroborating the testimony of PW-9 Mangilal for Appellants No. 1 Mangilal and No. 2 Kailash relying on their statements given on 6-1-2003 having held that after four months, these witnesses were won-over by the appellants. Learned trial Court has placed reliance on these two witnesses for corroborating the testimony of PW-9 Mangilal for Appellants No. 1 Mangilal and No. 2 Kailash relying on their statements given on 6-1-2003 having held that after four months, these witnesses were won-over by the appellants. On perusal of the statements of both these witnesses, we do not find any illegality in appreciation of evidence of both the witnesses by the trial Court and the approach of the trial Court is fully justified in view of the Supreme Court judgment passed in the case of Khujji vs. State of M.P., AIR 1991 SC 1853 wherein in para 7, it has been observed as under:- "....The examination-in-chief of this witness was recorded on November 16, 1976 when he identified all the assailants by name, he stated that he knew the six accused persons in Court and they were the persons who had surrounded the rickshaw and launched an assault on PW-4 and the deceased Gulab of them Gopal struck PW-4 with a chain. he also stated that the appellant Khujji and his companions Gudda and Parsu were armed with knives and when Khujji tried to assault PW-4 with a knife, Gopal shouted "Khujji that man is not Gulab". Thereupon Khujji and his companions ran after Gulab, overtook him and the appellant, Parsu and Gudda assaulted Gulab with their weapons. Gudda struck Gulab from the front on his chest. Parsu stabbed him on the side of the stomach while Ram Kishan and Gopal held him and the appellant attacked him from behind with a knife whereupon Gulab staggered shouting 'save save' and fell in front of the house of Advocate Chintaman Sahu. Thereafter all the six persons ran away. His cross-examination commenced on 15thh December, 1978. In his cross-examination he stated that the appellant Khujji and Gudda had their backs towards him and hence he could not see their faces while he could identify the remaining four persons. He stated that he had inferred that the other two persons were the appellant and Gudda. On the basis of this statement Mr. Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification by such a wavering witness.. He stated that he had inferred that the other two persons were the appellant and Gudda. On the basis of this statement Mr. Lalit submitted that the evidence regarding the identity of the appellant is rendered highly doubtful and it would be hazardous to convict the appellant solely on the basis of identification by such a wavering witness.. The High Court came to the conclusion and, in our opinion rightly, that during the one month period that elapsed since the recording of the examination-in-chief something transpired which made him shift his evidence on the question of identity to help the appellant. We are satisfied on a reading of his entire evidence that the statement in cross-examination on the question of identity of the appellant and his companion is a clear attempt to wriggle out of what he had stated earlier in his examination-in-chief. Since the incident occurred at a public place,, it is reasonable to infer that the street lights illuminated the place sufficiently to enable this witness to identify the assailants. We have, therefore, no hesitation in concluding that he had ample opportunity to identify the assailants of Gulab, his presence at the scene of occurrences not unnatural nor is his statement that he had come to purchase vegetables unacceptable. We do not find any material contradictions in the evidence to doubt his testimony. He is a totally independent witness who has no cause to give false evidence against the appellant and his companions. We are, therefore, not impressed by the reasons which weighed with the trial Court for rejecting his evidence. We agree with the High Court that his evidence is acceptable regarding the time, place and manner of the incident as well as the identity of the assailants". 7. In the instant case, all the three eye-witnesses are independent witnesses and the incident occurred on a public place near and Pump in the village in the evening at 5.00 PM. There is no dispute about sufficiency of light and identity of the appellants Mangilal and Kailash. Therefore, we are of the view that during four months' period, after recording of examination-in-chief and cross-examination on behalf of appellant Mangilal and Prabhu, something transpired because of which, both the witnesses in cross-examination changed their statements and we are satisfied on reading of their entire evidence that their earlier statements against appellants Mangilal and Kailash on 6-1-2003 are true. Therefore, we are of the view that during four months' period, after recording of examination-in-chief and cross-examination on behalf of appellant Mangilal and Prabhu, something transpired because of which, both the witnesses in cross-examination changed their statements and we are satisfied on reading of their entire evidence that their earlier statements against appellants Mangilal and Kailash on 6-1-2003 are true. Also see : [State of Gujarat vs. Anirudh Singh, (1997) 6 SCC 514 and Balram Prasad Agrawal vs. State of Bihar, (1997) 9 SCC 338 ]. 8. PW-9 Mangilal has deposed that on the date of incident in the evening at 4.30 PM, he was going from Hingoria to village Teedwas on his motorcycle and he was stopped by appellant No. 1 Mangilal s/o Nandlal having lathi in his hand. At that moment, appellant Kailash was assaulting Ramlal by Lathi and appellant Mangilal told him that he must see the condition of Ramlal because he had made, his wife to leave his house (house of appellant Mangilal) and he incurred lot of expenses on account of this. Further say of this witness Mangilal s/o Jujhar Singh is that he asked the appellants Mangilal and Kailash not to assault him on which he threatened and asked not to become so smart and to go away. At that time, appellant Mangilal also started assaulting Mangilal and Mangilal was lying on the ground. He immediately reached in the village and disclosed about the incident to Baje Singh alias Baje Lal (PW-5), son of deceased. When he returned back on the spot with Baje Singh, appellant Mangilal and Kailash fled away from the spot. The deceased was taken in a bullock-cart to the village. He was confronted by the Prosecutor with his case-diary statement Ex.P/19 in regard to participation of appellant No. 3 Prabhu, but he denied the presence of Prabhu on the spot. Learned counsel for the appellants has submitted that all the three eyewitnesses have exonerated the appellant No. 3 Prabhu, therefore, no reliance should have been placed by the trial Court on the testimony of these three witnesses. On consideration, we are of the opinion that legal maxim "falsus in uno falsus in omnibus", means false on one point would not be treated as false on all points or facts, is not applicable in our country. See : [Kalegura Padmarao vs. State of A.P., (2008)2 SCC (Cri) 197]. 9. On consideration, we are of the opinion that legal maxim "falsus in uno falsus in omnibus", means false on one point would not be treated as false on all points or facts, is not applicable in our country. See : [Kalegura Padmarao vs. State of A.P., (2008)2 SCC (Cri) 197]. 9. On perusal of the statement of PW-9 Mangilal, we are fully satisfied that he had witnessed the incident and immediately gave information to the son of deceased, thereafter, the deceased was taken in a bullock-cart and wife of the deceased PW-3 Ratanbai , lodged the report Ex.P/12. The statement of Mangilal (PW-9) is fully corroborated by the evidence of PW-1 Karulal and PW-4 Radheshyam about assault and participation in assault of Ramlal by appellant Nos. 1 Mangilal and No. 2 Kailash. His testimony is also fully corroborated by PW-8 Dr. Bhati who found number of injuries caused by hard and blunt object like lathi on the person of the deceased. On counting, Dr. Bhati gave total injuries in number, but at Sr.No. 8, he mentioned multiple contusions on all over back portion of the deceased right from neck to hip area and at Sr. No. 12 he noted multiple contusions on right and left thighs. Medical evidence of Dr. Bhati is clearly showing that the deceased was mercilessly beaten by appellants Mangilal and Kailash by lathi. The deceased died because of fracture of occipital bone and rib bones of the chest area which created commuted fracture and subdural haemorrhage. There was congestion of brain at left parietal region. The deceased died due to shock and haemorrhage as a result of head and chest injuries. In cross-examination of Dr. Bhati, nothing substantial has come out to cause dent to his evidence. Before the trial Court as well as before this Court, the homicidal death of the deceased has not been challenged. 10. Learned trial Court for the purposes of conviction of appellant Prabhu placed reliance on the testimony of PW-5 Baje Singh alias Baje Ram, the son of deceased who was not the eyewitness. What was disclosed to Baje Ram by eye-witness Mangilal (PW-9) cannot be used as substantive piece of evidence against appellant No. 3 Prabhu when the eye-witnesses have not named him as one of the participants in the incident or assailant of the deceased. What was disclosed to Baje Ram by eye-witness Mangilal (PW-9) cannot be used as substantive piece of evidence against appellant No. 3 Prabhu when the eye-witnesses have not named him as one of the participants in the incident or assailant of the deceased. We are of the opinion that there is no legal evidence available on record for convicting the appellant No. 3 Prabhu because all the three eye-witnesses right from beginning have deposed that Prabhu was not on the spot. 11. Learned counsel for the appellants has submitted that the appellant No.1 Mangilal and No. 2 Kailash have been convicted for the offence punishable under section 302 of the Indian Penal Code simpliciter and not with the aid of section 34 thereof whereas the eye-witnesses have not given any statement with regard to fatal blow caused to the deceased by appellant Mangilal or appellant Kailash. In the state of evidence of the eye-witnesses, according to the learned counsel, offence at the most under section 323 of the Indian Penal Code could be made out because authorship of fatal injury to skull as well as fracture of rib bones has not been proved specifically by the prosecution. 12. We have perused the charge-framed against the appellants by the learned trial Court and it indicates clearly that the ingredients of section 34 of the Indian Penal Code have been specifically mentioned in the charge framed against the appellants. It is specifically mentioned in the charge that the appellants having common intention to commit murder of Ramlal (deceased), assaulted the deceased in furtherance of their common intention resulting into his death. In this situation, the appellants were made aware of the charge which they were facing, therefore, no prejudice has been caused to their case. At this juncture, it would be appropriate to mention section 464 of the Code of Criminal Procedure which reads as under :- "464. Effect of omission to frame, or absence of, or error in, charge.- (1) No finding, sentence or order by a Court of competent jurisdiction shall be deemed invalid merely on the ground that no charge was framed or on the ground of any error, omission or irregularity in the charge including any misjoinder of charges, unless, in the opinion of the Court of appeal, confirmation or revision, a failure of justice has in fact been occasioned thereby. (2) If the Court of appeal, confirmation or revision is of opinion that a failure of justice has in fact been occasioned, it may - (a) in the case of an omission to frame a charge, order that a charge be framed and that the trial be recommenced from the point immediately after the framing of the charge; (b) in the case of an error, omission or irregularity in the charge, direct a new trial to be had upon a charge framed in whatever manner it thinks fit; Provided that if the Court is of opinion that the facts of the case are such that no valid charge could be preferred against the accused in respect of the facts proved, it shall quash the conviction." 13. In view of the aforesaid provision, non-mention of section in the charge simpliciter would not result into failure of justice and it has in fact not caused prejudice to the case of the appellants. Supreme Court in the case of Narinder Singh vs. State of Punjab, AIR 2000 SC 2212 has observed in para 16, relevant portion whereof is reproduced as under :- "It was submitted by Mr. Gupta that that Narinder Singh could not have convicted with the aid of section 34 as this section is nowhere mentioned in the impugned judgment. Mention of section in the judgment is not the requirement of law to convict a person. If the ingredients of the offence are present, conviction can be made. It is not material to bring the case under section 34 IPC as to who, in fact, inflicted the fatal blow. High Court has rightly interfered in the matter and sentenced the appellants accordingly." Also see: [Anil Sharma vs. State of Jharkhand, (2004) 5 SCC 679 and Anna Reddy Sambasiva Reddy and ors. vs. State of Andhra Pradesh, JT 2009(5) SC 617]. 14. The number and nature of injuries caused to the deceased as well as evidence of motive as stated by PW-3 Ratanbai which has been corroborated by her First Information Report Ex.P/12, it can reasonably be discerned that the appellants Mangilal and Kailash were having common intention to commit murder of Ramlal and in furtherance of the said common intention, assaulted him. 15. In the wake of aforesaid legal and factual discussion this appeal is allowed in part. 15. In the wake of aforesaid legal and factual discussion this appeal is allowed in part. Conviction of the appellants No. 1 Mangilal and No. 2 Kailash for the offence punishable under section 302 of the Indian Penal Code is altered to one under section 302 read with section 34 of the Indian Penal Code and each of them is sentenced to imprisonment for life and fine of Rs. 500/-, in default of payment of fine, each of them shall suffer additional R.I. for one month. Conviction and sentence of appellant No. 3 Prabhu are hereby set-aside. He is on bail, his bail and surety bonds shall stand discharged.