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Madhya Pradesh High Court · body

2012 DIGILAW 1281 (MP)

Kalua v. State of M. P.

2012-12-12

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT Saxena, J. -- 1. This appeal has been preferred under section 374 of the Code of Criminal Procedure, 1973 against a judgment dated 17th October, 2005 passed in Sessions Case No.156/2004 by the Second Additional Sessions Judge Morena, convicting the appellant for committing murder of Dinesh, son of Kedar Singh Baghele, which is an offence punishable under section 302 of IPC and sentenced him to suffer imprisonment for life. 2. Facts, in brief, relevant for decision of this case are that on 29th February, 2004 at about 8 p.m., in night deceased Dinesh along with his cousin brother Sunil went to his Well, situated at their agriculture fields. On way, they met with accused Kalua @ Rajvir (present appellant). It is alleged that at that juncture, on some petty matter, a quarrel took place between the accused and deceased. At about 11 p.m., in night, Sunil reached at the deceased’s residence and informed that accused Kalua throttled the neck of Dinesh by a cotton Muffler used by the villagers called Safee and committed his death. Father of deceased, namely, Kedar Singh along with Akbar, Nathu and other family members and neighbours reached on the spot and saw that his son Dinesh was dead. Thereafter, Kedar Singh along with other persons went to the Police Station, Dimani District Morena and lodged the FIR, marked as Ex.P-9 which was registered at Crime No.32/04 for offence punishable under section 302 of IPC against accused. At that time, Marg Report vide Ex.P-10 was also written. The investigation was set into motion. Post-mortem was conducted on the body of deceased Dinesh; statements of eye-witness and other material witnesses were recorded. Accused was arrested. After completion of investigation, charge-sheet was filed before the Criminal Court. On committal to the Court of Sessions, the sessions trial commenced and after recording evidence, the learned Additional Sessions Judge held the accused guilty for causing murder of Dinesh under section 302 of IPC and sentenced him to life imprisonment, as mentioned above, hence this appeal. 3. The contention of the learned counsel for the appellant is that the impugned judgment is passed against the factual aspects as emerged from the evidence and also against law, hence, it is liable to be set aside. It is submitted that only eye-witness to the incident in this case is Sunil Baghele, who is not reliable person. 3. The contention of the learned counsel for the appellant is that the impugned judgment is passed against the factual aspects as emerged from the evidence and also against law, hence, it is liable to be set aside. It is submitted that only eye-witness to the incident in this case is Sunil Baghele, who is not reliable person. It is further pointed out that as per medical opinion recorded by the doctor, the possibility of suicide cannot be ruled out. Therefore, it is prayed that by allowing the appeal, the conviction and sentence recorded against the appellant be set aside and the accused be acquitted of the offence of murder. 4. Per contra, the learned Public Prosecutor appearing on behalf of the respondent-State contended that the prosecution succeeded to prove the guilt against the accused by statements of eye-witness Sunil Baghele and other witnesses, namely, Kedar Baghele, father of deceased and Akbar Baghele, who reached on the spot, just after incident on information given by Sunil Baghele of the incident together with medical evidence and recovery of muffler ‘Safee’ from the spot, which was the instrument used by the accused in causing death of Dinesh coupled with report and statement of A.K. Khan (PW9) Scientific Officer of local unit of Forensic Science Morena, who visited the spot immediately along with the I.O. who prepared the detailed report of the incident and map of the scene. It is, thus, argued that the prosecution by adducing evidence successfully proved the guilt of the accused and as such the learned trial Judge rightly convicted and sentenced the appellant. It is accordingly prayed that by dismissing the appeal, the conviction and sentence of the accused be maintained. 5. The defence taken by the accused is that almost all the prosecution witnesses are related to each other whereas some are having inimical relations against the accused and, therfore, it is pleaded by him that his involvement in the alleged crime is apparently false, which is based on concocted versions of the witnesses on record. 6. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent-State. Also perused the record of the trial Court and the law. 7. To prove the guilt against the accused, the prosecution examined Sunil Baghele (PW4), who is the only eye-witness of the incident. 6. Heard the learned counsel appearing for the appellant and the learned Public Prosecutor appearing for the respondent-State. Also perused the record of the trial Court and the law. 7. To prove the guilt against the accused, the prosecution examined Sunil Baghele (PW4), who is the only eye-witness of the incident. He deposed that deceased Dinesh was his cousin brother and he also knew accused Kalua, being a resident of the same village. He stated that near about 8-10 months ago, in night, he and his brother Dinesh after taking meals were going to place of his Well for sleeping at their agriculture field. On the way, accused Kalua met them standing near handcart of one Munna Baghele in an drunken state. The accused compelled them to sit there. When they resisted, accused gave a slap on the face of Dinesh and also threatened both of them to kill. In the night, when the witness accompanied with Dinesh took rest and were in a sound sleep, he felt some dis-comfortableness due to which he ceased from sleep. Then, he saw that accused Kalua was pressing neck of Dinesh with a muffler ‘Safee’ and immediately thereafter the accused run away from the spot. When body of Dinesh was not responding, the witness thought that he died and so he went to the house of the deceased for informing the incident. The father, uncle and other relatives of the deceased then rushed to the place of scene to see Dinesh. Nathu lifted the body of deceased and placed on the surface of ground. He also removed the muffler ‘Safee’ from the neck of deceased. Thereafter, Sunil Baghele (PW4) accompanied with father of deceased and other persons, namely, Deshraj, Shivdat, Pujaram etc. etc. went to the police station for lodging the report. The police reached on the spot in the night itself. 8. Kedar Baghele (PW5), who is father of the deceased and complainant in this case deposed that on 29th February 2004, in the evening deceased Dinesh and Sunil went for sleeping after having meals to the place of Well at their agriculture field. At about 10-10:30 p.m., Sunil came back and informed that accused Kalua killed his son Dinesh. Then, he and others went to the spot and saw that Dinesh was lying dead on the cot and his neck was tied with a muffler. At about 10-10:30 p.m., Sunil came back and informed that accused Kalua killed his son Dinesh. Then, he and others went to the spot and saw that Dinesh was lying dead on the cot and his neck was tied with a muffler. He and others put dead body on the earth from the bed. Thereafter, he and others went to the police station and lodged the FIR. 9. Akbar Baghele (PW11) deposed that on fateful night he heard the voice from hut situated on the Well at agriculture field of Kedar that Kalua killed Dinesh. As he proceeded towards the spot, he saw that accused Kalua was running away from the spot to his house. He also asked the accused but he pushed him and run away. When he reached on the spot, he saw that Dinesh was dead and Safee was tied around his neck. By that time, many persons gathered on the spot. Thereafter, dead body was placed from the bed to surface area. The police reached on the spot in night and inspected the place. 10. Shivdatt (PW1), the watchman of village deposed that at about 11 p.m., in night on 29th February 2004 Kedar, father of deceased Dinesh reached at his residence and informed that Dinesh died. On the said information, he went along with Kedar and other persons on a tractor to a police station where Kedar lodged the FIR. Thereafter, the police reached on the spot and also went to the residence of accused Kalua and lifted him from his residence in a fateful night. In the morning, police issued the inquest memo (Ex.P-1) and thereafter memo of dead body was prepared in the presence of the witness and other persons present on the spot. 11. Banti Baghele (PW6), Surendra Baghele (PW7) and Ramauhor Baghele (PW8) who were witnesses of the prior incident regarding manhandling with Dinesh (deceased) by accused Kalua did not support the prosecution version. 12. Dr. P.R. Pendarkar (PW2) deposed that at the relevant time, he was posted as a Medical Officer-cum-Assistant Surgeon in the District Hospital Morena. He deposed that on 1st March 2004, at about 10:30 a.m., he conducted post-mortem on the dead body of Dinesh, which was sent by the Police Station Dimani vide a memo (Ex.P-4). The dead body was identified by Mahesh Raghav, a Constable No.177. He deposed that on 1st March 2004, at about 10:30 a.m., he conducted post-mortem on the dead body of Dinesh, which was sent by the Police Station Dimani vide a memo (Ex.P-4). The dead body was identified by Mahesh Raghav, a Constable No.177. He found the external ligature marks, starting from left mastoid process and going to downwards crossing mid line of thyroid cartilage and running towards right side upwards and literally up to the hairline of lope of the neck. Mark was absent on posterior aspect of the neck. Total length of ligature mark was 23 cm. and average breath is 2 cm. The base of ligature mark is congested and hard like parchment. No other external mark was found on the dead body. The ligature mark was ante-mortem in nature and by hard flexible object. Death was within 8-24 hours from time of post-mortem. He opined that mode of death was asphyxia due to hanging. 13. On 11th March 2004, he received a query letter (Ex.P-6) and on further examination of the post-mortem report, he opined that death of the deceased is possible if the Safee ‘muffler’ is pressed towards upward. His opinion letter is Ex.P-7. On query by the Court he opined that mode of death may be homicidal or suicidal. He was agreed with suggestions that if the person was sleeping in that condition no sign of resistance would appear on his body. 14. A.K. Khan (PW9) Scientific Officer of local Forensic Science Unit Morena deposed that on 1st March 2004 at about 5:30 a.m., in the morning, he got information about death from village Bhadra Ki Bhagpura thereafter at about 7 a.m., in the morning he went along with Investigation Officer on the spot and prepared a detailed spot map and report of the spot and also visualized the dead body and prepared the detailed report of the dead body. 15. Narendra Kumar Tripathi (PW12), the Investigating Officer, deposed that on 1st March 2004 at about 00:45 hours in night, being In-charge of the Police Station Dimani, on an oral information of Kedar Baghele, he wrote an FIR (Ex.P-9) and Marg Intimation Report (Ex.P-10) and thereafter he started with investigation in the matter. In night, he immediately proceeded on the spot and inspected. In night, he immediately proceeded on the spot and inspected. On next day, he prepared spot map (Ex.P-11) and also prepared memo of dead body in the presence of people who were summoned by issuing the inquest memo (Ex.P-1). Thereafter, dead body was sent for post-mortem to the District Hospital Morena. He seized Safee from nearby place of the dead body and sealed the same on the spot. During investigation, on the spot, Shri A.K. Khan, Scientific Officer of local Forensic Science Unit Morena was accompanying him. He recorded case diary statements of the witnesses. He arrested the accused on 2nd March 2004, vide arrest memo (Ex.P-27). 16. In the present case, Sunil Baghele (PW4) is said to be the only eye-witness to the occurrence. So, the fate of the case mainly rests on his evidence. Learned counsel appearing for the appellant submitted that the trial Court ought not to have convicted the appellant basing on the solitary evidence of Sunil Baghele (PW4). 17. There is no force in the contention of the learned counsel for the appellant. 18. The evidence in such cases is to be weighed and not counted. Conviction can be based on the evidence of a solitary witness if it is found to be reliable, clinching and beyond reproach. Bearing the same principles in mind, the evidence of Sunil Baghele (PW4) has to be scrutinized carefully whether the same satisfies those tests. It transpires from the evidence of Sunil Baghele (PW4) that on the date of occurrence while he along with the deceased was going to the Well for sleeping, the appellant met them on the way. The appellant asked the deceased and the witness to sit there by holding his (Sunil Baghele’s) hands to which the witness and the deceased physically protested. The accused then gave a slap on the deceased. Thereafter, the witness and deceased went to their place and slept on one cot. In night, when the cot was moved, the witness saw that accused was pressing the neck of deceased and thereafter run away. He thought that Dinesh died and so rushed to his village to inform the family members of the deceased. In para 2 of his statement, it was elicited from the witness that the appellant was under intoxication at the time of occurrence. He thought that Dinesh died and so rushed to his village to inform the family members of the deceased. In para 2 of his statement, it was elicited from the witness that the appellant was under intoxication at the time of occurrence. Save and except this, nothing substantial could be brought out from the mouth of Sunil Baghele (PW4) to disbelieve his veracity. So, in our considered opinion, his evidence is reliable, clinching and beyond reproach. Ocular testimony of Sunil Baghele (PW4) is further corroborated by the evidence of Kedar Baghele (PW5), father of deceased, Akbar Baghele (PW11) and Dr. P.R. Pedarkar (PW2) the doctor, who conducted autopsy over the dead body of the deceased. It is also found from the evidence of the doctor that on 11th March 2004, he received a query letter (Ex.P-6) from the I.O. to examine and opine as to whether or not the death could be possible by the Safee to which he opined in affirmative under Ex.P-7. So, it is established beyond all reasonable doubt that the deceased died because of pressing neck by the appellant. 19. It is true that the related witnesses cannot be discarded on that ground specially when the statement of solitary eye-witness Sunil Baghele (PW4) finds well support by the other material witnesses and the medical evidence and also by the FIR which was promptly lodged by his father, without delay. In such matters, the Court has to scrutinise such evidence with greater care and caution. In the instant case, there was not a slightest indication that any of the witnesses, who were related to deceased, whose testimony was relied upon by the trial Court bore any animus against the appellant. In this view of the matter and this being settled position of law, it is difficult for us to discard the evidence of the witnesses, as discussed hereinabove merely only on the ground that they were related to the deceased. In this context reference may be made to the decisions in the cases of Ranjit Singh and others v. State of Madhya Pradesh [2011 Cri.LJ 283], and Brahm Swaroop and another v. State of U.P. [2011 Cri.LJ 306]. 20. So, the prosecution has successfully proved that in fateful night, the accused had killed Dinesh by throttling his neck by means of a Muffler ‘Safee’ which was recovered from the spot. 21. 20. So, the prosecution has successfully proved that in fateful night, the accused had killed Dinesh by throttling his neck by means of a Muffler ‘Safee’ which was recovered from the spot. 21. Learned counsel appearing for the appellant then submitted that the manner in which death was caused and the fact that the appellant was under intoxication during the time of occurrence, the case would fall within the ambit of exception IV to section 300 of IPC and as such the appellant shall be liable for the offence under section 304 Part I of IPC. 22. To bring a case under the pale of section 85 of IPC, the thing which intoxicated the person should have been administered to him without his knowledge or against his wishes.The expression without his knowledge simply means in ignorance of the fact that what is being administered to him is or contains or is mixed with an intoxicant. To invoke the immunity of section 85, the accused is to prove that it was not voluntary and that by intoxication, he lost the requisite equilibrium to Judge what is right or wrong. 23. In the case of Basdev v. State of Pepsu [ AIR 1956 SC 488 ], the Hon’ble apex Court held as under : “Special leave was granted by this Court limited to the question whether the offence committed by the petitioner fell under section 302 of the Penal Code or section 304 of the Penal Code having regard to the provisions of section 86 of the Penal Code. Section 86 which was elaborately considered by the High Court runs in these terms : “In cases where an act done is not an offence unless done with a particular knowledge or intent, a person who does the act in a state of intoxication shall be liable to be dealt with as if he had the same knowledge as he would have had if he had not been intoxicated, unless the thing which intoxicated him was administered to him without his knowledge or against his will.” It is doubt true that while the first part of the section speaks of intent or knowledge, the latter part deals only with knowledge and a certain element of doubt in interpretation may possibly be felt by reason of this omission. If in voluntary drunkenness, knowledge is to be presumed in the same manner as if there was no drunkenness, what about those cases where mens rea is required? Are we at liberty to place intent on the some footing, and if so, why has the section omitted intent in its latter part? This is not the first time that the question comes up for consideration. It has been discussed at length in many decisions and the result may be briefly summarized as follows : So far as knowledge is concerned, we must attribute to the intoxicated man the same knowledge as if he was quite sober. But so far as intent or intention is concerned, we must gather it from the attending general circumstances of the case paying due regard to the degree of intoxication. Was the man beside his mind altogether for the time being? If so it would not be possible to fix him with the requisite intention. But if he had not gone so deep in drinking and from the facts it could be found that he knew what he was about, we can apply the rule that a man is presumed to intend the natural consequences of his act or acts. Of course, we have to distinguish between motive, intention and knowledge. Motive is something which prompts a man to form an intention and knowledge is an awareness of the consequences of the act. In many cases intention and knowledge merge into each other and mean the same thing more or less and intention can be presumed from knowledge. The demarcating line between knowledge and intention is no doubt thin but it is not difficult to perceive that they connote different things. Even in some English decisions, the three ideas are used interchangeably and this had led to a certain amount of confusion.” 24. In the case of Bablu v. State of Rajasthan [ AIR 2007 SC 697 ], Hon’ble apex Court held : “The defence of drunkenness can be availed of only when intoxication produces such a condition as the accused loses the requisite intention for the offence. The onus of proof about reason of intoxication due to which the accused had become incapable of having particular knowledge in forming the particular intention is on the accused. The onus of proof about reason of intoxication due to which the accused had become incapable of having particular knowledge in forming the particular intention is on the accused. Basically, three propositions as regards the scope and ambit of section 85 IPC are as follows : (i) The insanity whether produced by drunknness or otherwise is a defence to the crime charged; (ii) Evidence of drunkenness which renders the accused incapable of forming the specific intent essential to constitute the crime should be taken into account with the other facts proved in order to determine whether or not he had this intent; and (iii) The evidence of drunkenness falling short of a proved incapacity in the accused to form the intent necessary to constitute the crime and merely establishing that his mind is affected by drink so that he more readily give to some violent passion, does not rebut the presumption that a man intends the natural consequences of his acts.” 25. Again, in Shankar Jaiswal v. State of West Bengal [2007 AIR SCW 3344], it is held : “There is no evidence available on record as to the quantity of the alcohol consumed by the appellant except the observation of PW1 and PW3 that he was under the influence of liquor. No one stated that he was not in his senses and lost self control. There is no evidence as regards the degree of intoxication. There is no evidence of any attending general circumstances to arrive at any conclusion that the appellant was beside his mind altogether temporarily at the time of incident. He was apparently conscious and fully capable of understanding the consequences of his act as it is evident that immediately after the incident he walked the distance to the house of PW9, Mongala Prasad Lal (Sadhu) and concealed the weapon of offence and wearing apparels. Prof. Mazumdar (PW5) found seven grievous injuries which according to him were the cause of death being ante-mortem and homicidal in nature. We are required to notice the evidence of PW5 with a particular reference to injuries No.4 and 7 which according to him may have been caused while the victim was defending himself. In the circumstances, it cannot be said that there was no intention on the part of the appellant and he was out of his senses on account of intoxication.” 26. In the circumstances, it cannot be said that there was no intention on the part of the appellant and he was out of his senses on account of intoxication.” 26. With regad to the intention, drunkenness may perhaps be adverted to according to the nature of the instrument used. If a man uses a stick, you would not infer a malicious intent so strongly against him, if drunk, when he made an intemperate use of it, as he would if he had used a different kind of weapon; but where a dangerous instrument is used, which, if used must produce grievous bodily harm, drunkenness can have no effect on the consideration of the malicious intent of the party. 27. In such cases, in determining the quality of the offence, evidence may be necessary of a specific state of mind which must be found as a fact and not assumed. In the present case except the bare statement of Sunil (PW4) that accused was intoxicated, there was no evidence as to when or where he took it and the quantity of liquor the accused had taken also his conduct during the commission of offence was incompatible with the theory that he was so deeply drunk that he was unable to know the consequences of his own act. In the absence of such an evidence, the accused is liable to be convicted. The learned counsel appearing for the accused-appellant has, therefore, failed to prove such incapacity as would have been available to him as a defence. Thus, it is a case where the law presumes that he intended the natural and probable consequences of his act. 28. Resultantly, the appeal fails and is hereby dismissed.