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Madhya Pradesh High Court · body

2012 DIGILAW 1251 (MP)

Maniram v. State of M. P.

2012-12-04

RAKESH SAKSENA, T.K.KAUSHAL

body2012
JUDGMENT Saksena, J. -- 1. Appellant has filed this appeal against the judgment dated 11.7.2000 passed by Second Additional Sessions Judge, Balaghat in Sessions Trial No.56/2000, convicting the appellant under section 302/34 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs.2,000/-. In default of payment of fine, further rigorous imprisonment for six months. 2. It would be appropriate to mention that since co-accused Brajlal was absconding, the Session trial of appellant was completed and the impugned judgment of his conviction was pronounced on 11.7.2000. 3. The prosecution case in brief is that on the occasion of Diwali after ‘Goverdhan Puja’ on 8.11.1999, Shyamlal went at the house of his cousin Ganesh Prasad and told to him that accused persons were beating him. In the meanwhile, accused Maniram and Brajlal reached there and after catching, made him to fall on stone and assaulted him with fists and kicks and also with sticks. As a result of assault, Shyamlal suffered injuries on his head, ear and shoulders. Ganesh Prasad went to the house of Radhelal, brother of Shyamlal and called him. Radhelal carried Shyamlal to his house and made arrangements to take him to a doctor, but on way Shyamlal died. Radhelal gave intimation of the occurrence at police out post Dora, whereupon merg intimation report Ex.P-2 and first information report Ex.P-3 were recorded. 4. Police went at the spot, drew spot map and conducted inquest proceedings vide memorandum Ex.P-9. The dead body of Shyamlal was sent to Primary Health Centre, Baihar, where Dr. R.K. Chaturvedi (PW7) conducted post-mortem examination and vide his report Ex.P-12 found six injuries on the body of deceased. After requisite investigation, charge-sheet was filed and the case was committed for trial. 5. On charges being framed, accused abjured his guilt and pleaded false implication due to enmity. ‘Though, no specific defence plea was taken, but it was suggested to eye-witness that deceased contracted injuries on being dashed by a cow or by a fall on the stone under intoxication. 6. Prosecution, to substantiate the charge against the appellant mainly relied on the evidence of Radhelal (PW1), Ganesh (PW3), Komal Prasad (PW4) and Dinesh (PW5). Finding the evidence of Ganesh (PW3) corroborated by the evidence of Radhelal, Komal Prasad, Dinesh and the medical evidence of Dr. 6. Prosecution, to substantiate the charge against the appellant mainly relied on the evidence of Radhelal (PW1), Ganesh (PW3), Komal Prasad (PW4) and Dinesh (PW5). Finding the evidence of Ganesh (PW3) corroborated by the evidence of Radhelal, Komal Prasad, Dinesh and the medical evidence of Dr. R.K. Chaturvedi (PW7), learned trial Judge held the appellant guilty, convicted and sentenced him as mentioned above. Aggrieved by his conviction and sentence, appellant has filed the present appeal. 7. Learned counsel for the appellant submitted that the trial Judge mis-appreciated the evidence of eye-witness Ganesh. His evidence was not reliable in the facts and circumstances of the case since he happened to be a cousin of deceased. In the alternative, learned counsel for the appellant submitted that the conviction of appellant under section 302/34 of the Indian Penal Code was not justified since there appeared no intention on the part of appellant to commit murder of the deceased. Accused persons and the deceased were under intoxication and they had indulged in scuffle and quarrel before the appellant dealt lathi blows to him. In these circumstances, at the most appellant could be punished only under section 304-II of the Indian Penal Code. He is in jail since 25.1.2001. On the other hand, learned counsel for the State submitted that the evidence of eye-witness Ganesh (PW3) was reliable and stood corroborated by other evidence on record. In view of the nature of injuries found on the body of deceased, the conviction of appellant under section 302 of the Indian Penal Code was justified. 8. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully. 9. It is not disputed that deceased suffered injuries which resulted into his death. From the evidence of Radhelal (PW1), Ganesh (PW3), Komal Prasad (PW4) and Dinesh (PW5), it stood established that Shyamlal suffered injuries and died. Radhelal (PW1) stated that when he was taking Shyamlal to hospital, he died on way, then he went to police out post, Dora and lodged merg report Ex.P-2 and first information report Ex.P-3. Police then sent the dead body for post-mortem examination. Dr. Radhelal (PW1) stated that when he was taking Shyamlal to hospital, he died on way, then he went to police out post, Dora and lodged merg report Ex.P-2 and first information report Ex.P-3. Police then sent the dead body for post-mortem examination. Dr. R.K. Chaturvedi (PW7), Medical Officer of Primary Health Centre, Baihar stated that on 10.11.1999 he conducted post-mortem examination of the body of Shyamlal and found following injuries : (i) Contusion on right shoulder joint extending up to back scapula on right side 6”x4” in size irregular. Contusion extending up to 8th rib on frontal side. (ii) Contusion on left occipital region behind ear 1”x1” in size. (iii) Contusion on left side of chest 4”x4” in size reddish blue. (iv) Abrasion on left forehead 1/2”x1/2” in size with clotted blood. (v) Blood oozing out from both nostrils. On internal examination : (i) Contusion on left and right chest with fracture of 2nd and 8th ribs right side and clotted blood. (ii) Liver, spleen and kidney ruptured on right side. (iii) Fracture of right shoulder clavicle bone. In his opinion, the injuries were anti-mortem in nature. They were caused by some hard and blunt object. The cause of death was shock due to injury to vital organ i.e. rupture of right liver, spleen, kidney, fracture of right shoulder bone and also by excessive bleeding. It is thus established that deceased met with a homicidal death. 10. Now the question is whether appellant was responsible for causing death of deceased. Learned counsel for the appellant submitted that the evidence of sole eye-witness Ganesh (PW3) was not reliable since he happened to be the cousin of deceased and that Radhelal (PW1), the real brother of deceased did not wholly support the prosecution case that deceased disclosed to him that accused persons assaulted him. It is true that eye-witness Ganesh (PW3) is cousin of deceased and Radhelal (PW1) is real brother of deceased, but merely because of their being relatives of deceased, their testimony cannot be discarded altogether if it is found otherwise reliable. Ganesh (PW3) categorically stated that on the occasion of ‘Goverdhan Puja’ Shyamlal came to his house. While he was sitting accused Maniram and Brajlal reached there and after catching hold of him dropped him on the stone. They assaulted him with fists, kicks and also with sticks. Shyamlal suffered injuries in head, ear and shoulders. Ganesh (PW3) categorically stated that on the occasion of ‘Goverdhan Puja’ Shyamlal came to his house. While he was sitting accused Maniram and Brajlal reached there and after catching hold of him dropped him on the stone. They assaulted him with fists, kicks and also with sticks. Shyamlal suffered injuries in head, ear and shoulders. After beating, both the accused persons ran away. Shyamlal fell down unconscious. He then went to the house of Radhelal and called him. He and Radhelal took him to doctor, but doctor expressed his helplessness as it was a police case. While they were taking Shyamlal to the doctor of village Dora, on way Shyamlal expired. 11. Radhelal (PW1) stated that Ganesh Prasad (PW3) came to him and informed that Maniram and Brajlal had assaulted to Shyamlal with sticks. He went to the house of Ganesh Prasad and saw his brother lying there. There were injuries on his body. With Ganesh Prasad (PW3) and two-three other persons carried Shyamlal to his house, but Shyamlal did not tell anything to him since he was unconscious. This witness was declared hostile because he did not speak before the Court that deceased made an oral dying declaration to him. He, however, disclosed that he took deceased to doctor, but on way he died. He lodged the first information report Ex.P-3 at police out post Dora on the next day. 12. Though Radhelal (PW1) did not disclose the dying declaration made by the deceased before the Court, but he categorically stated that Ganesh Prasad (PW3) came to his house and informed that accused persons had assaulted deceased with sticks. Apart from it, Komal Prasad (PW4) and Dinesh (PW5), who happened to be the father and brother of Ganesh Prasad (PW3) also deposed that when they came back to their house Ganesh Prasad told to them that Maniram and Brajlal had beaten Shyamlal. These witnesses also stated that Shyamlal was not in a position to speak as he remained unconscious. Learned counsel for the appellant submitted that there was no independent corroboration of the evidence of Ganesh Prasad (PW3), therefore, his evidence was not reliable. Ganesh Prasad (PW3) stated that at the time of occurrence none else was present, therefore, except him nobody saw the incident. Learned counsel for the appellant submitted that there was no independent corroboration of the evidence of Ganesh Prasad (PW3), therefore, his evidence was not reliable. Ganesh Prasad (PW3) stated that at the time of occurrence none else was present, therefore, except him nobody saw the incident. This witness, in our opinion, cannot be held to be an interested witness since nothing was suggested to him that he had any grudge or animus against the accused persons. Though, he witnessed the recoveries of sticks at the instance of accused persons, but before the Court, he frankly admitted that these sticks were kept in his house and it was he, who had supplied these sticks to police. There was no reason for this witness to have spoken untrue even when Radhelal, the real brother of deceased resiled from disclosing that deceased made an oral dying declaration to him. We find that the evidence of Ganesh Prasad (PW3), which finds corroboration from the evidence of Radhelal (PW1), Komal Prasad (PW4) and Dinesh (PW5) and further from the evidence of Dr. R.K. Chaturvedi (PW7), who found four injuries on the body of Shyamlal caused by hard and blunt object, is reliable. 13. After a close scrutiny of the evidence of Ganesh Prasad (PW3), we find that his evidence is consistent, cogent and trustwhorthy and that the learned trial Judge committed no error in holding that it was established beyond doubt that appellant assaulted deceased with stick, as a result of which, he died. 14. Learned counsel for the appellant contended that the conviction of appellant under section 302/34 of the Indian Penal Code was not justified, since it was not proved beyond doubt that appellant intended to commit murder of deceased. On perusal of evidence of Ganesh (PW3), it is revealed that when accused persons caught Shyamlal at his house they pushed him on stone and assaulted him with fists and kicks and thereafter, also used sticks as a weapon of assault. Ganesh Prasad admitted that because it was an occasion of ‘Goverdhan Puja’ deceased had consumed excessive liquor. There was nothing on record to indicate that there was past enmity between the deceased and the accused persons. No evidence was adduced by the prosecution to indicate motive on the part of accused persons for committing murder of the deceased. Though, it was stated by Dr. There was nothing on record to indicate that there was past enmity between the deceased and the accused persons. No evidence was adduced by the prosecution to indicate motive on the part of accused persons for committing murder of the deceased. Though, it was stated by Dr. R.K. Chaturvedi (PW7) that 2nd - 8th ribs of both the sides of deceased were fractured, but on perusal of the post-mortem examination report Ex.P-12, it appears that only 2 and 8th ribs of right side and clavicle bone of deceased were fractured and his spleen, liver and kidneys were ruptured. Though, Dr. Chaturvedi did not say, but it seems quite possible that internal organs of the deceased might have got ruptured by the broken ribs. In these circumstances, in our opinion, it could not be held established beyond doubt that appellant assaulted deceased with the intention of committing his murder, but, since he wielded a stick also and after dropping the deceased on stone caused injuries to him on vital parts of the body of deceased, it can be held that he knew that by his act he was likely to cause his death or to cause such bodily injury as was likely to cause his death, making him liable to be punished under section 304-II of the Indian Penal Code. 15. In view of the above, the conviction of appellant under section 302/34 of the Indian Penal Code is modified to one under section 304-II of the Indian Penal Code and he is sentenced to rigorous imprisonment for a period of seven years. Sentence of fine is set aside. 16. Appeal partly allowed.