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2010 DIGILAW 464 (MP)

Balram alias Ballu v. State of M. P.

2010-04-22

A.K.SHRIVASTAVA, INDRANI DATTA

body2010
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 18.4.2002 passed by learned Second Additional Sessions Judge, Ashoknagar, Guna, in Sessions Trial No.330/2001 convicting the appellants under sections 302/34 of IPC and thereby sentencing them to suffer life imprisonment and fine Rs.5,000/- each with a further stipulation that in default of payment of fine, they shall further undergo five years simple imprisonment, this appeal under section 374(2) of the Code of Criminal Procedure, 1973 has been filed by the appellants. 2. In brief the case of prosecution is that on 26.9.2001 some time earlier to 11 p.m. Seetaram was taking dinner in his house alongwith his father-in-law Samaliya, who is father of Munna (hereinafter referred to as the deceased) and one guest namely Himmat Singh. At that juncture, by consuming liquor, appellants arrived there and appellant Bhagirath made demand to provide chicken, but Seetaram did not accept his demand. Thereafter, appellant Balram alias Ballu demanded eggs from him and this request was also not accepted. Thereafter, both the appellants asked to provide money to purchase chicken and eggs, but this request too was not accepted. Eventually, both the appellants became annoyed on Samaliya (father of deceased) that he (Samaliya) managed to get their father killed and now you will become childless and you may carry your son Munna (deceased) elsewhere. On this, Samaliya told that both of us have compromised, now why you are teasing him. Thereafter, both the appellants went towards the house of Patel. After the departure of appellants, within 2-3 minutes Seetaram went to drop Samaliya (his father in-law) at his house by adopting some different way and when both of them arrived at the house of Samaliya, in the veranda in the light of electric bulb they saw that Munna (deceased), who is the son of Samaliya was being assaulted by the appellants and he was lying on the road. According to the prosecution, Bhagirath was giving axe blows on the person of deceased, while appellant Balram alias Ballu was giving blows of Thunsa (last end of the lathi). On seeing the scene, Seetaram and Samaliya shrieked to rescue and on hearing their scream, appellant Bhagirath by climbing up on the Patore and appellant Balram alias Ballu from the front side fled from the place of occurrence. On seeing the scene, Seetaram and Samaliya shrieked to rescue and on hearing their scream, appellant Bhagirath by climbing up on the Patore and appellant Balram alias Ballu from the front side fled from the place of occurrence. After the departure of accused persons from the place of occurrence, these two persons examined Munna and found that he sustained umpteen incised wounds on neck, back, armpit etc. and he was dead. On hearing hue and cry Lalaram Bhoi, Failiram, Muniram etc. arrived at the spot to whom the incident was narrated by these two persons. 3. It is the further case of prosecution that by leaving Samaliya nearby the dead body of the deceased, Seetaram alongwith Failiram, Muniram and Chatru Kotwar went to lodge first information report in Police Station, Esagarh, which is 16 kms. far away from the place of occurrence. The first information report was lodged at 2 a.m. 4. On lodging of the first information report, the criminal law was triggered and set in motion. The investigating agency after registering the case under section 302/34 of IPC against the appellants arrived at the spot; prepared the spot map; prepared the Panchayatnama of the dead body and sent if for post-mortem; recorded the statement of the witnesses; seized ordinary and blood stained earth from the place of occurrence; arrested the accused persons and seized the Lathi and axe which were used as weapons in the commission of offence and sent these weapons for chemical examination. 5. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the trial Court for the trial. 6. The learned trial Judge on the basis of averments made in the charge-sheet, framed charge punishable under section 302 read with section 34 of IPC against the appellants, which they denied and requested for the tria1. 7. In order to bring home the charge, prosecution examined as many as 9 witnesses and placed EX.P-I to Ex.P-23, the documents on record. The defence of the appellants is of false implication and the same defence they set forth in their statement recorded under section 313 of CrPC and in support of their defence, they also examined Lalaram as DW 1. 8. The defence of the appellants is of false implication and the same defence they set forth in their statement recorded under section 313 of CrPC and in support of their defence, they also examined Lalaram as DW 1. 8. The learned trial Judge on the basis of evidence placed on record, came to hold that charge under section 302/34 of IPC is proved against both the appellants and eventually convicted them and passed the sentence which we have mentioned hereinabove. 9. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 10. It has been put forth by Shri R.D. Sharma, learned counsel for appellant Balram alias Ballu that prosecution has examined four star witnesses, they are Muniram Patel (PW1), Seetaram (PW2), who is also the author of the FIR (Ex.P-5) and is the brother-in-law of the deceased, Failiram (PW3) and Samaliya (PW7), who is the father of deceased as well as father-in-law of the author of the FIR. The contention of learned counsel is that so far as witnesses Muniram and Failiram are concerned, they are not the eye-witnesses and are hearsay witnesses for the simple reason that alleged eye-witnesses Seetaram and Samaliya told about the incident to them. 11. By putting emphasis on the post -mortem report (Ex.P-17) as well the statement of autopsy surgeon Dr. Mahesh Kumar Pippal (PW9), it has been put forth by learned counsel that since as per the case of prosecution, Thunsa (last end of the Lathi) blow of Lathi was alleged to have been dealt by appellant Balram, for no rhyme or reason, it can be said that this appellant shared the common intention with appellant Bhagirath to kill the deceased. It has also been put forth by learned counsel that the alleged blow of Thullsa has also not been medically corroborated. Learned counsel has also submitted that the cause of death of the deceased is not on account of alleged blow of Lathi, but according to autopsy surgeon, the deceased had died on amount of the injuries sustained by hard. sharpand heavy object. By hammering the story of prosecution as well as its hallmark and authenticity, it has been argued by learned counsel that material witness Himmsatsingh has not been examined. sharpand heavy object. By hammering the story of prosecution as well as its hallmark and authenticity, it has been argued by learned counsel that material witness Himmsatsingh has not been examined. On these premised submissions, it has been contended by learned counsel that since there is no clinching evidence against appellant Balram alias Ballu, therefore, his conviction under section 302/34 of IPC cannot be sustained in the eye of law and he be acquitted. 12. Shri A.K. Jain, learned counsel for appellant No.2 Bhagirath, submits that Himmatsingh and Lalaram were the material witneses, but prosecution did not examine them, although accused took pains to examine Lalaram in defence and he was examined as DW 1. By inviting our attention to his testimony, it has been contended by learned counsel that nowhere he has stated that Samaliya ever told this witness that appellant Bhagirath dealt axe blows on the person of the deceased and appellant Balram alias Ballu dealt Thunsa blows of Lathi to him. The contention of learned counsel is that 161 CrPC statement of this witness was recorded, but for the reasons best known to prosecution, he was not examined by the prosecution. Further, it has been contended by him that it is borne out from the testimony of alleged eye-witnesses, namely Seetaram and Samaliya that mother of the deceased was also sleeping in the kitchen, which is nearby the place of occurrence, but she was not examined as well as the local independent witnesses have also not been examined and there is no evidence that they refused to give any statement to the police, and therefore, adverse inference should be drawn against the prosecution. 13. By putting emphasis on the spot map (Ex.P-1), it has been contended by learned counsel that since the incident had occurred in the late night and because there was no source of light and it has also not been shown in the spot map, therefore, it was not possible for the alleged eye-witnesses to visualize the incident and if that is the position, learned trial Court has erred in convicting appellant Bhagirath under section 302/34 of IPC. In this context, learned counsel has invited our attention to the statement of investigating officer Abdul Sagir (PW8). 14. In this context, learned counsel has invited our attention to the statement of investigating officer Abdul Sagir (PW8). 14. Learned counsel further submits that on the spot blood stained knife was also found which is also shown in the spot map as web as it has been so stated by the investigating officer According to learned counsel, in the spot map this has also not been shown by the investigating officer that from which place the incident was visualized by the witnesses and its distance, and therefore, the evidence of eye-witnesses becomes highly doubtful. By putting a deep dent on the authenticity and hallmark of the case of prosecution, it has been propounded by learned counsel that the alleged weapon axe was not even shown to the autopsy surgeon in order to ascertain whether the injuries sustained by the deceased could ever come by an axe. On these premised submissions, it has been argued by learned counsel that since the prosecution has utterly failed to prove its case against appellant Bhagirath, therefore, by allowing this appeal, this judgment of conviction and order of sentence be set aside. 15. Combating the aforesaid submissions, it has been propounded by learned Public Prosecutor that in the present case there is overwhelming evidence of eye-witnesses Seetaram (PW2), who is also the author of the FIR, and Samaliya (PW7), which has been corroborated by Muniram (PW1) and Failiram (PW3) and taking into consideration the cumulative effect of the testimony of these witnesses, for no rhyme or reason, it can be said that appellant Balram alias Ballu did not share the common intention with appellant Bhagirath to kill the deceased and not only this, he was not a silent spectator, but was carrying a weapon like a Lathi and he also used it in the commission of the offence. 16. It has also been put forth by learned Public Prosecutor that since Lathi has been used by appellant Balram alias Ballu in the commission of the offence, merely because it has been so stated by the witnesses that its Thunsa (last end of the Lathi) was dealt, would not mean that round portion of the last end of the Lathi was dealt. According to learned counsel, looking to the incident, it can be inferred that Lathi was also wielded and if that would be the position, since there is corresponding injury No.7, which would certainly come by a Lathi, therefore, appellant Balram alias Ballu has been rightly convicted under section 302/34 of IPC. 17. By advocating the reasons assigned by learned trial Court as well as by highlighting the testimony of witnesses as well as the medical evidence, it has been contended by learned Public Prosecutor that in singular version the eye-witnesses are saying that deceased was chopped by axe and all these blows were dealt by appellant No.2 Bhagirath, which is also medically supported and therefore for no rhyme or reason, it can be said that this appellant Dhagirath is an innocent person. 18. By replying the argument of learned counsel for the appellants, it has been contended by learned Public Prosecutor that mother of the deceased, who was sleeping nearby the place of occurrence inside the kitchen, is deaf and is also unable to walk and apart from this, even if the mother of the deceased and other independent witnesses have not bee examined by the prosecution whose statement under section 161 of CrPC was recorded by the investigating agency, no adverse inference can be drawn against the prosecution. On these premised submissions, it has been argued by learned Public Prosecutor that this appeal sans substance and the same be dismissed. 19. Having heard learned counsel for the parties, we are of the firm view that this appeal deserves to be dismissed. 20. In the present case there are two eye-witnesses to the incident, namely Seetaram (PW2) and Samaliya (PW7). Needless to say, Seetaram is the brother-in-law of the deceased, while Samaliya is his father and they are thickly related to the deceased. Apart from these witnesses, there may be some more eye-witnesses also, as argued by learned counsel for the appellants. True the investigating agency has also recorded the statement under section 161 of CrPC of those witnesses, but that question would arise if the testimony of the eye-witnesses, who have been examined, is disbelieved and then only the factum of non-examination of other eyewitnesses can be taken into consideration. Hence, we shall now x-ray the testimony of eye-witnesses. True the investigating agency has also recorded the statement under section 161 of CrPC of those witnesses, but that question would arise if the testimony of the eye-witnesses, who have been examined, is disbelieved and then only the factum of non-examination of other eyewitnesses can be taken into consideration. Hence, we shall now x-ray the testimony of eye-witnesses. Before scanning the evidence of these witnesses, we would like to say that merely because the eye-witnesses are thickly related to the deceased, their testimony is not just like a waste paper, but their evidence is to be scrutinized with great care and caution. By keeping this well settled proposition of law in our mind, we shall now examine the evidence of eye-witnesses. 21. Seetaram (PW2) is the author of the FIR (Ex.P-5) and he has proved his FIR in his testimony. On going through the testimony of this witness, we find that he invited his father-in-law and one guest Himmatsingh for the dinner in his home and they were enjoying the dinner. At that juncture, both the appellants came to his house and appellant Bhagirath asked to provide chicken, but this witness did not accept the request. Thereafter, appellant Balram alias Ballu asked to provide eggs which too was denied by him. After that both the appellants asked him to give money to purchase the chicken and eggs, but this request was also not accepted by him. On seeing Samaliya (father of the deceased), these two appellants told him that because he managed to kill their father, the God will take revenge from him and you will become issueless. Further, they told that he may carry his son Munna (deceased) elsewhere. On this, Samaliya pacitied them that both of us have compromised and now why you people are teasing me. Thereafter, both the appellants went towards the Gali of Patel and after 10 minutes this witness alongwith his father-in-law Samaliya by adopting another way, went to drop him at his house. As soon as both of them reached nearby the house of Samaliya, they found that electric bulb was on in the veranda and they saw that the deceased was lying beneath the cot on the way. He was being assaulted by Bhagirath by axe and Balram alias Ballu was giving Thunsa blows by Lathi. As soon as both of them reached nearby the house of Samaliya, they found that electric bulb was on in the veranda and they saw that the deceased was lying beneath the cot on the way. He was being assaulted by Bhagirath by axe and Balram alias Ballu was giving Thunsa blows by Lathi. On seeing this, both of them shrieked and on heasring their scream, appellant Bhagirath by climbing up from Patore ran away and appellant Balram alias Ballu fled from the scene from the front side. Thereafter, both these witnesses examined the deceased and found that he received umpteen injuries of axe and he was already dead. Further, he has stated that on raising alarm, Lala Bhoi arrived at the spot and this witness also called Muniram and Failiram. All these persons were discussing what to do and ultimately Muniram told that let us go to lodge the report, as a result of which, in a tractor, he went to lodge the FIR alongwith Muniram, Failiram and Chaturi Chokidar and at 2 a.m. he lodged the first information report in the police station. 22. In para 3 of his examination-in-chief, this witness has stated that 16-17 years earlier to the incident, the deceased killed the father of appellants and basing the said incident as an enmity; these two appellants took their revenge by killing the deceased. Further, he has stated that in the murder case, the deceased suffered jail sentence of 20 years and after serving out the entire sentence, he was released from the jail. In para 4 of his cross-examination, this witness has admitted that from the Chabutara they did not see the appellants causing injuries of axe, but they saw them causing injuries from the veranda and the dead body was lying beneath the Chabutara. Further, he says that near about 3 feet far away from the veranda, kitchen is there in which the mother of the deceased was sleeping. He has also stated that an electric connection is installed in the house of the deceased. This witness was cross-examined at length, but except certain minor omissions and contradictions, nothing has been carved out in order to disbelieve his statement on the material point that appellant Bhagirath dealt several axe blows on the person of deceased, while appellant Balram alias Ballu dealt Thunsa (last end of the Lathi) blow on the person of the deceased. This witness was cross-examined at length, but except certain minor omissions and contradictions, nothing has been carved out in order to disbelieve his statement on the material point that appellant Bhagirath dealt several axe blows on the person of deceased, while appellant Balram alias Ballu dealt Thunsa (last end of the Lathi) blow on the person of the deceased. It has come in the testimony of this witness that the house in which the incident took place was having an electric connection and we find from the FIR (Ex.P-5) also that this witness saw the incident in the light of electric bulb. Hence,' we do not find any merit in the contention of learned counsel for the appellants that in the spot map the investigating officer has not mentioned whether at the place of occurrence there was any electric bulb or not. At the most, we can say that this was an irregularity on the part of investigating officer. Since in the FIR, which is lodged promptly, this fact has been mentioned that in the light of bulb the eyewitnesses have seen the incident, for no rhyme or reason, their statement can be said to be unnatural or untrue. 23. The statement of eye-witness Seetaram (PW2), who is also the author of FIR, has been corroborated by the testimony of another eyewitness Samaliya (PW7), who is the father of the deceased. This witness Samaliya too has stated that both the appellants came to the house of his son-in-law Scetaram (PW2) and at that juncture, he alongwith his son inlaw and one more guest Himmatsingh was enjoying the dinner and these appellants made demand" to provide chicken and eggs which was not accepted by his son-in-law Seetaram and he also did not accept their offer to provide money to purchase the same. It is also borne out from the testimony of Samaliya (PW7) that on seeing him, both the appellants told that since you have killed our father, now you should leave the village by carrying your son Munna (the deceased), although this witness pacified them that both of us have compromised and now why you are exhuming the old dead body. Thereafter both of them went towards Patelwali Gali. Thereafter both of them went towards Patelwali Gali. This witness has also categorically stated that when he arrived alongwith his son-in-law to his house, he saw that appellant Bhagirath was giving axe blows to his son, while appellant Balram alias Ballu was giving Thunsa of lathi. This witness has also stated that in the veranda electric bulb was switched on and in the light of the electric bulb he saw the incident. In para 7 of his cross-examination, this witness has stated that nearby the place of incident, inside the kitchen his wife was sleeping, but she is deaf and is unable to walk. I 24. After examining the testimony of these two eye-witnesses with great care and caution, since we do not find any infirmity in it, according to us, even if the prosecution has not examined other witnesses, no adverse inference can be drawn against it as argued by learned counsel for the appellants. According to us, even if they would have been examined, at the most, their evidence would have been corroborative piece of evidence. We have already discussed hereinabove that wife of Samaliya (PW7) who was sleeping inside the kitchen is deaf, and therefore, it is difficult to hold that she was able to hear hue and cry and was awoken and hence even if she was not examined, it will not even dilute the case of the prosecution. 25. The testimony of these two eye-witnesses has been corroborated by the evidence of Muniram (PW I) and Failiram (PW3) to whom immediately after the incident these two witnesses have stated that appellant Bhagirath has chopped the deceased by giving axe blows, while appellant Balram alias Ballu dealt Thunsa blows of lathi. We do not find any merit in the contention of Shri Sharma, learned counsel for the appellant Balram, that these two witnesses are hearsay witnesses and therefore, their testimony has no credential value. According to us, their testimony is a relevant piece of evidence as envisaged under section 157 of the Evidence Act. We may further say and we are also holding that their testimony is having credential value as res gestae and their testimony is substantive piece of evidence. The words "at or about the time" used in section 157 of the Evidence Act are having great significance. We may further say and we are also holding that their testimony is having credential value as res gestae and their testimony is substantive piece of evidence. The words "at or about the time" used in section 157 of the Evidence Act are having great significance. According to us, there cannot be a narrow view that unless such a statement was made soon after the occurrence it cannot be used for corroboration. A broader view is that even if such statement was made within a reasonable proximity of time still such statement can be used for corroboration. The expression "at or about the time when the fact took place" in sec. ion 157 of the Evidence Act should be understood in the context according to he facts and circumstances of each case. The real test to be adopted, therefore, is this: Did the witness have the opportunity to concoct or to have been tutored? Since it is borne out from the testimony of Muniram (PW1) and Failiram (PW3) that soon after, the incident when they arrived at the spot, eye-witnesses Seetaram and Samaliya told them that appellant Bhagirath chopped the deceased by axe, while appellant Balram alias Ballu dealt Thunsa blow of Lathi and hence their testimony is admissible in evidence and is relevant piece of evidence in terms of section 157 of the Evidence Act. In this context, we may profitably place reliance on two decisions ofl Supreme Court, they are Smt. Chander Kala v. Ram Kishan and another [ AIR 1985 SC 1268 para 9], and State of Tamil Nadu v. Suresh and another [1998 Cri.LJ 1416]. These two decisions were relied upon by Division Bench of this Court in Chander Singh Chamar v. State of Madhya Pradesh [ 2007(III) MPWN 68 = 2007(3) MPHT 485 para 15]. It would also be profitable to place reliance on another decision of Supreme Court Rameshwar slo Kalyan Singh v. The State of Rajasthan [ AIR 1952 SC 54 para 29]. 26. It would also be profitable to place reliance on another decision of Supreme Court Rameshwar slo Kalyan Singh v. The State of Rajasthan [ AIR 1952 SC 54 para 29]. 26. So far as the contention of Shri Jain, learned counsel appearing for appellant-Bhagirath, that weapon axe was not shown to the doctor is concerned, suffice it to say that it is a matter of common parlance that axe is a sharp edged weapon and since there is overwhelming evidence of the eye-witnesses that the axe was used by appellant Bhagirath in causing injury to the deceased, according to us, even if the seized weapon was not shown to the doctor, it will not somersault or even dilute the case of the prosecution. 27. We donot find any merit in the contention of Shri Sharma, learned counsel for appellant-Balram, that if the blow of Thunsa of Lathi is given, a contusion would come and since there is no contusion on the person of the deceased, therefore, the involvement of this appellant Balram is highly doubtful. The argument though at the first blush appears to be quite attractive, but on deeper scrutiny found to be devoid of any substance. Both the eye-witnesses have stated that these appellants firstly arrived at the house of Seetaram where both the eye-witnesses were enjoying dinner alongwith one Himmatsingh, where these two appellants scolded on Samaliya (father of the deceased) that he should carry away his son Munna (deceased) elsewhere and admittedly there is enmity between both the parties as it is borne out from the evidence of the witnesses that deceased murdered the father of the appellants. So far as the impact of Thunsa blow is concerned, we would like to make it clear that it is not the sole criteria to hold that involvement of appellant Balram is doubtful since contusion has not been found in the post-mortem report, nor it has been so stated by the autopsy surgeon Dr. Mahesh Kumar Pippal (PW9)as well as this has also not been shown in the Panchayatnama of the dead body (Ex.P-3), in which it has been stated that the left hand of the deceased was beneath the rest part of the body. Mahesh Kumar Pippal (PW9)as well as this has also not been shown in the Panchayatnama of the dead body (Ex.P-3), in which it has been stated that the left hand of the deceased was beneath the rest part of the body. Certainly on receiving the blows of axe, since they were not dealt on a statue but on a living human being, therefore definitely the deceased would react, and therefore, the manner and method of assault; position of the deceased; resistance offered by him; the opportunity available to the witnesses to visualize the occurrence; their distance from the place they saw the incident and other incriminating circumstances are relevant factors. It is always not necessary that if these witnesses have stated that they have seen appellant Balram causing Thunsa blow, would not mean that Lathi was not weilded by Balram. This position has been taken into consideration by the Supreme Court in the decision of Thaman Kumar v. State of Union Territory of Chandigarh [ (2003)6 SCC 380 in para 16]. Needless to say, a lacerated wound has been found on the person of the deceased apart from the incised wounds, the autopsy surgeon Dr. Mahesh Kumar Pippal (PW9) has noticed injury NO.7 on left dorsum of hand vertical 3 x 0.5 cm suprficial, ecchymosis present. 28. Right from very beginning of the incident, the involvement of appellant Balram alias Ballu is there. He not only went alongwith appellant Bhagirath, who was carrying an axe, but also entered inside the house of the deceased carrying Lathi in his hand and also took part in the incident by giving blows of lathi on the person of the deceased when appellant Bhagiath was giving blows of axe, and therefore, according to us, he shared the common intention with appellant Bhagirath to kill the deceased. Needless to say, the deceased sustained umpteen incised wounds, the details of which are mentioned in the post-mortem report (Ex.P-17) and which have been proved by autopsy surgeon Dr. Mahesh Kumar Pippal (PW9). Needless to say, the deceased sustained umpteen incised wounds, the details of which are mentioned in the post-mortem report (Ex.P-17) and which have been proved by autopsy surgeon Dr. Mahesh Kumar Pippal (PW9). If appellant Balram alias Ballu did not share the common intention to kill the deceased, why he entered during the odd hours of night inside the house of deceased by carrying a Lathi alongwith appellant-Bhagirath, who was carrying an axe, and therefore, the only inference which can be drawn is that appellant Balram alias Ballu shared common intention with another appellant Bhagirath to kill the deceased and thus he has been rightly convicted under section 302/34 of IPC. 29. We have also gone through the reasonings assigned by learned trial Court convicting the appellants under section 302/34 of IPC and we do not think it appropriate to deviate ourselves from the reasonsings assigned by it and hence we hereby extend our stamp of approval to the reasonings assigned by learned trial Court. 30. Ex consequenti, this appeal is found to be bereft of any substance and the same is hereby dismissed. Appellant-Balram is on bail, his bail bonds shall stand cancelled on his surrendering before learned trial Court on or before 21st May, 2010, failing which learned trial Court shall issue arrest warrant against him and shall also issue notice against his surety and may pass necessary orders against the surety also. It is further made clear that in case appellant Balram surrenders before learned trial Court on or before 21st May, 2010, his bail bonds shall stand cancelled. The Registry is hereby directed to send the original bail bond papers to learned trial court and a photocopy there of be retained in this tile for the record. The Registry is hereby further directed to send the record posthaste so as to reach much prior to 21st May, 2010. After sending the appellant-Balram to jail, the learned trial Court shall intimate in that regard to the Registry of this Court.