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2012 DIGILAW 211 (MP)

Bapu alias Bapulal v. State of M. P.

2012-02-16

A.K.SHRIVASTAVA, SHUBHADA R.WAGHMARE

body2012
JUDGMENT : Asper A.K. Shrivastava , J . : - Feelingaggrieved by the judgment of conviction and order of sentence dated 22-2-2003passed by learned Second Additional Sessions Judge, Ujjain in Sessions Trial No. 340/2002 convicting the appellants under Sections 148,302/149 and 323/149, IPC and thereby sentencing them to suffer imprisonment asmentioned in the impugned judgment, the appellants have knocked the doors ofthis Court by preferring this appeal under Section 374 (2) of the Code ofCriminal Procedure, 1973. 2.In brief the case of the prosecution is that on 3-7-2002 in Village Maniyawada , Mangilal (hereinafter referred to as "thedeceased") along with his sons Bharat and Jitendra and wife Ramubai wererepairing the Merh (mound) of his field. At thatjuncture, appellants Pema and Chander arrived there and started hurling abuses to the deceased. They also intervenedin repairing the mound and told that if the deceased would repair the mound hewill be killed. It is also said that when the deceased asked not to hurl theabuses, after near about 20 minutes appellants arrived there carrying lathi and dhariya etc. and onseeing them coming with lethal weapons the deceased along with his wife andchildren went away, however, when these persons reached nearby the field of Gordhan , at that juncture, all the appellants encircledthem. It is said that Pema dealt lathi blows on the head of the deceased and when his wife Ramubai went to rescue her husband she was beaten by appellant Chander .It is said that when Jitendra went to rescue hisfather and the mother, Chander again dealt lathi blow to him also and when Bharat intervened, it is said that Chander and Kailash rushed to cause injury to him. It is also said thatappellants Bapulal and Ambaram also wielded lathis on the head of the deceased. Onaccount of receiving injuries by the deceased he fell on he ground and he waspicked up by his sons Jitendra and Bharat and brought the deceased in the village where entireepisode was narrated to one Bhagwan Singh Patel andtold that they are going to lodge the report. However, on the way nearby thefiled of Bharatsingh deceased fell down and breathedhis last. 3.It is the further case of prosecution that on the arrival of the police at thespot Bharat lodged Dehati Nalishi to Assistant Sub Inspector Anil Purohit . 4.On lodging of Dehati Nalishi the criminal law was triggered and set in motion. However, on the way nearby thefiled of Bharatsingh deceased fell down and breathedhis last. 3.It is the further case of prosecution that on the arrival of the police at thespot Bharat lodged Dehati Nalishi to Assistant Sub Inspector Anil Purohit . 4.On lodging of Dehati Nalishi the criminal law was triggered and set in motion. The Investigating Agency sentthe injured persons and also the deceased to the hospital; prepared the spot map;recorded the statements of the witnesses; after the death of the deceased senthis dead body for post-mortem etc. 5.After the investigation was over a charge-sheet was submitted in the CriminalCourt, which committed the case to the Court of Session and from, where it wasreceived by the Trial Court for trial. 6.Learned Trial Judge framed the charges punishable under Sections 148, 302/149,302, 323/149 and 325, IPC against the accused persons, which they denied andrequested for the trial. 7.In order to bring home the charges prosecution examined its witnesses and alsoproved some documents. The defence of the appellantsis of false implication and same defence they setforth in their statements recorded under Section 313, Cr.PC and in their defence they examined three witnesses,namely, Shantilal (D.W. 1), Banesingh (D.W. 2) and Arjunsingh (D.W. 3). 8.Learned Trial Judge on the basis of evidence placed on record came to hold thatappellants have committed the offence under Sections 148, 302/149 and 323/149,IPC and thereby convicted them and passed different sentences which arementioned in the impugned judgment. 9.In this manner, this appeal has been filed by the appellants assailing theirjudgment of conviction and order of sentence. 10.The contention of Shri Sharma, learned Counsel for the appellants is that specifically eye-witness Bharat (P.W. 3) who is also the author of Dehati Nalishi has stated that onthe head appellant Pema dealt axe blow. There isgeneral allegation against other appellants that they also caused injuries tothe deceased. It has not at all been stated that by which weapon which of theappellant caused injury to the deceased. By inviting our attention to thetestimony of Autopsy Surgeon, Dr. Ajay Sharma (P.W. 1) and the post-mortemreport ( Exh . P-1) of the deceased it has beencontended by learned Counsel that in total four injuries were sustained by thedeceased and out of these four injuries, two injuries were on the head which werecaused by hard and blunt object and other two injuries were abrasions on theforearm and elbow. Ajay Sharma (P.W. 1) and the post-mortemreport ( Exh . P-1) of the deceased it has beencontended by learned Counsel that in total four injuries were sustained by thedeceased and out of these four injuries, two injuries were on the head which werecaused by hard and blunt object and other two injuries were abrasions on theforearm and elbow. Learned Counsel submits that since the injury upon the headhas been attributed to appellant Pema and that too byaxe and in absence of any incised wound on the head of the deceased, theinvolvement of appellant Pema becomes highly doubtfulfor causing the death of the deceased. 11.Learned Counsel for the appellants has also invited our attention to thetestimony of MLC Doctor, Dr. Jaijee Bhopte (P.W. 12) and has argued that although Ramubai (P.W. 4) was referred to the hospital and her MLCreport is Exh . P-36, but, the MLC Doctor did not findany injury upon her. However, said MLC doctor found injuries on the person of Jitendra (P.W. 6), but they were found to be simple 'exceptinjury No. 1, for. which he was referred for X-ray.Learned Counsel submits that although Jitendra wasreferred for X-ray, but, the report of the Radiologist was not accepted byTrial Court and the appellants have been acquitted under Section 325, IPC. Onthese premised submissions it has been submitted by learned Counsel that byallowing this appeal the impugned judgment be set aside and appellants beacquitted from all the charges. 12.On the other hand, Shri Bohra , learned PublicProsecutor argued in support of the impugned judgment. 13.Having heard learned Counsel for the parties we are of the considered view thatthis appeal deserves to be allowed in part. 14.On bare perusal of the testimony of Bharat (P.W. 3)we find that in the examination-in-chief itself he is saying that appellant Pema dealt axe blow on the head of the deceased.Thereafter, there is general allegation that all the accused persons causedinjuries to the deceased. Specifically this witness is saying that Dehati Nalishi ( Exh . P-4) was lodged by this witness in the hospital at Ujjain while the InvestigatingOfficer Sub Inspector Anil Purohit (P.W. 11) saysthat it was recorded at the spot. According to us, since there is contradictorystatement of Investigating Officer and the author of Dehati Nalishi , it raises a heavy doubt looking to theplace, where it has been lodged. P-4) was lodged by this witness in the hospital at Ujjain while the InvestigatingOfficer Sub Inspector Anil Purohit (P.W. 11) saysthat it was recorded at the spot. According to us, since there is contradictorystatement of Investigating Officer and the author of Dehati Nalishi , it raises a heavy doubt looking to theplace, where it has been lodged. For no stretch of imagination one can thinkthat the field where Dehati Nalishi was lodged and the hospital are the same and one place and this vastdistinction raises a heavy doubt on the authenticity and the hallmark of thecase of prosecution and it appears that Dehati Nalishi has been prepared in order to bring the appellantswithin the clutches of Section 302, IPC. Apart from this, it can also be visualised that author of the Dehati Nalishi , Bharat (P.W. 3) isnot stating the true version of the scene, because according to him, Pema dealt axe blow on the head of the deceased, however,no such injury has been sustained to the deceased on his head. It would beappropriate to go through the testimony of the Autopsy Surgeon, Dr. Ajay Sharma(P.W. 1) and the post-mortem report of the deceased ( Exh . P-1). According to the Autopsy Surgeon, the deceasedsustained following injuries : - ( i ) Lacerated wound on left parieto temporal region of skull 2½ x ½" x muscle deep. Fresh clotted bloodpresent; (ii)Lacerated wound on left skull parietal region one inch above injury No. 1,2" x ½" x muscle deep. Clotted blood present; (iii)Abrasion on right side of forearm at lateral side. Size ½ " x ¼"; and (iv) Abrasion on right side of forearm at lateral side oneinch above injury No. 3, size ½" x ¼". 15. On dissecting the dead body of the deceased Subdural Hematoma on leftparietal region was found as well as a fracture on the left parietal bone wasalso found. According to the doctor deceased had died due to coma as a resultof head injury. Indeed, there is no incised wound on the entire body of thedeceased. True, abrasions, which are found on the forearm could be on account of fall. Since no incised wound has been found on any partof the body of the deceased, involvement of appellant Pema becomes very doubtful because according to the witnesses he has caused injuryby axe to the deceased. 16.In Hallu and others Vs. True, abrasions, which are found on the forearm could be on account of fall. Since no incised wound has been found on any partof the body of the deceased, involvement of appellant Pema becomes very doubtful because according to the witnesses he has caused injuryby axe to the deceased. 16.In Hallu and others Vs. State of Madhya Pradesh, AIR1974 SC 1936, the Supreme Court has categorically held that normally whenwitness says that the axe or spear is used, there is no warrant for supposingthat what the witness means is that the blunt side of the weapon was used andif be the implication it is the duty of the prosecution to obtain aclarification from the witness as to whether a sharp-edged or a piercing weaponwas used as a blunt weapon. Same proportion has been laid down by the SupremeCourt in Thaman Kumar Vs .Stale of Union Territory of Chandigarh , (2003) 6 SCC380 and Kapildeo Mandal andothers Vs. State of Bihar, AIR 2008 SC 533 . Since there is no explanation inthis regard, according to us, the involvement of Pema causing injuries by axe to the deceased becomes highly doubtful. 17.The other allegations against other appellants are of general character andtherefore, according to us, the appellants are entitled for the benefit ofdoubt. 18.We do not find any merit in the contention of learned Public Prosecutor thatthere is oral dying declaration given by deceased to Balaram (P.W. 7), Bhagwansingh (P.W. 8). According to us, saidoral dying declaration given to Bhagwansingh (P.W. 8)is an omission and this was confronted to this witness by his case diarystatement ( Exh . D-5). So faras the oral dying declaration given by deceased to Balaram (P.W. 7) is concerned, it is very vague and of general character. TheInvestigating Officer, Anil Kumar Purohit (P.W. 11)has categorically stated that no such oral dying declaration was given by thedeceased to these witnesses and these witnesses never give such type ofstatements to him. 19.We have gone through the testimony of Jitendra (P.W.6) in respect to causing injuries to him as well as his MLC report ( Exh . P-38) and we find that appellants have been rightlyconvicted under Section 323/149, IPC. However, the sentence of one year RIawarded to them is reduced for the period they have already undergone. 20.Resultantly, this appeal succeeds and is allowed in part. P-38) and we find that appellants have been rightlyconvicted under Section 323/149, IPC. However, the sentence of one year RIawarded to them is reduced for the period they have already undergone. 20.Resultantly, this appeal succeeds and is allowed in part. The impugned judgmentof conviction and order of sentence under Sections 148 and 302/149, IPC ishereby set aside and the appellants are acquitted from these charges. Theconviction of appellants under Section 323/149, IPC is hereby affirmed and theyare hereby directed to suffer the sentence they have already suffered. Exceptappellant No. 6, Pema , all the appellants are onbail, their bail bonds are discharged. Appellant Pema is in jail, he be set at liberty forthwith, if not required in any other case.