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Madhya Pradesh High Court · body

2013 DIGILAW 1103 (MP)

Gulab v. State of M. P.

2013-09-11

M.C.Garg, Shantanu Kemkar

body2013
ORDER Kemkar, J. 1. This appeal under section 374 of the Code of Criminal Procedure, 1973 is against the judgment dated 7.12.2001 passed by the Additional Sessions Judge, Jobat, District Jhabua in Sessions Case No. 293/2000, whereby convicting the appellant for the offence under section 302 of the Indian Penal Code and sentencing him for life imprisonment. 2. The prosecution case, in brief, may be stated, as under: - On 29.3.2000 at about 10.00 PM, appellant Gulab was beating his children. On this, Bhuchariya (brother of the appellant) asked the appellant as to why he is beating them. To this, the appellant replied and said that as they are his children, he is free to do anything with them, and he should not make any interference in it. Having received such reply, the deceased Bhuchariya said yes, they are your children and you may do whatever you like to do with them. After saying so, Bhuchariya went near the well and lied down on the swing hanged there. Hinglibai (PW 1) also followed Bhuchariya. When the deceased was lying on swing and Hinglibai was standing nearby him, the appellant armed with ‘Falia’ reached there. He while using abusive words, caught hold of Bhuchariya and then dragged him to a distance; on which Hinglibai tried to get Bhuchariya freed from the appellant, but was not successful. The appellant then inflicted ‘Falia’ blow on the neck of Bhuchariya, on account of which Bhuchariya fell down. The appellant then also continued to inflict injuries to him by ‘Falia’. When Hinglibai shouted and asked to the appellant as to why he is beating Bhuchariya, he tried to attack Hinglibai. In order to save herself, Hinglibai ran away from the spot. On hearing cry of Hinglibai, villagers came to the spot and found Bhuchariya to be dead. First Information Report Ex. P/1 was lodged at Police Station, Nanpur, District Jhabua. The Police prepared Naksha Panchayatnama Ex. P/5. Dead body was sent to postmortem. The postmortem report is Ex. P/7-A. After completion of investigation challan was filed by the Police against the appellant. 3. The appellant abjured guilt and pleaded innocence. In order to prove the charge, the prosecution examined five witnesses and in defence, no evidence was led by the appellant. 4. P/5. Dead body was sent to postmortem. The postmortem report is Ex. P/7-A. After completion of investigation challan was filed by the Police against the appellant. 3. The appellant abjured guilt and pleaded innocence. In order to prove the charge, the prosecution examined five witnesses and in defence, no evidence was led by the appellant. 4. The trial Court, placing reliance on the eye witness account of Hinglibai (PW 1), recorded a finding of guilt against the appellant and sentenced him, as aforesaid. Aggrieved, the appellant has filed this appeal. 5. Shri Anirudha Gokhale, learned counsel for the appellant has argued that the trial Court has committed error in convicting the appellant only on the basis of solitary statement of Hinglibai (PW 1) which was not trustworthy in view of the various contradictions and omissions in her statement. He also contended that Hinglibai deposed that the appellant inflicted three ‘Falia’ injuries on the deceased, whereas her deposition about number of injuries does not find support from the postmortem report Ex. P/7-A and the evidence of Dr. Arun Kulkarni (PW 4), who conducted the postmortem in which total eight injuries were described. He also contended that witness of seizure of ‘Falia’, Guman (PW 2) did not support the prosecution case, and as such, the seizure of the weapon from the appellant having been not proved; the conviction of the appellant cannot be sustained. 6. On the other hand, Shri R.S. Parmar, learned Panel Lawyer appearing for the respondent, supported the impugned judgment of conviction. He submits that the trial Court has rightly placed reliance on the eye witness account of Hinglibai (PW 1), which is duly corroborated by the medical and other evidence. According to him, there is no material contradiction and omission in the evidence of Hinglibai, so as to discard her version. 7. We have considered the submissions made by the learned counsel for the parties and perused the evidence on record as also the impugned judgment. 8. Hinglibai (PW 1) has deposed that her brother-in-law Gulab (the appellant) was beating his children. On which, her husband, who was brother of the appellant asked the appellant as to why he is beating his children. The appellant did not like his intervention and said that he should not say in between. On this, her husband went to the well and lied down on a swing tied near the well. On which, her husband, who was brother of the appellant asked the appellant as to why he is beating his children. The appellant did not like his intervention and said that he should not say in between. On this, her husband went to the well and lied down on a swing tied near the well. She also followed him and went at the swing near the well. Soon thereafter, the appellant reached there armed with ‘Falia’. He started abusing the deceased and then dragged him from the swing to some distance and then inflicted ‘Falia’ blow on his neck. Thereafter, he inflicted 2-3 times ‘Falia’ blows on his body. When she cried, the appellant tried to cause her injury, on which she fled away from the spot and told the incident to Guman, Raisingh, Nandu and Samrath. All of them reached to the spot where they found Bhuchariya to be dead. In her cross-examination, nothing has come out so as to disbelieve her version. Some contradictions with her previous statement about reaching Guman, Raisingh and Nandu on the spot, when they heard her cry and in her deposition that she ran to her house and thereafter narrated the incident to other persons namely Guman, Raisingh, Nandu and Samrath and then they came to the spot will not make her version to be untrustworthy. In the circumstances, we are unable to agree with the submission of learned counsel for the appellant that on account of this discrepancy, the testimony of Hinglibai should not have been relied upon by the trial Court. 9. As regards the discrepancy about number of injuries stated by her and were found in the postmortem, in our considered view, merely because in her deposition, Hinglibai had stated that she has seen the appellant inflicting 3 – 4 injuries to the deceased and in the postmortem report and as per the version of the doctor, if the injuries were eight in number, the version of Hinglibai (PW 1) cannot be discarded. It has come in her evidence that when the appellant was inflicting injuries to her husband, she started shouting, on this, the appellant tried to catch her and to save herself from him, she fled away from the spot. In the circumstances, it was very natural for her to have not seen the further injuries, which were caused by the appellant to the deceased. 10. In the circumstances, it was very natural for her to have not seen the further injuries, which were caused by the appellant to the deceased. 10. In the circumstances, we are of the considered view that the trial Court has committed no error in passing the impugned judgment of conviction of the appellant on the basis of testimony of Hinglibai, wife of the deceased, who had seen the incident. Her evidence is fully reliable and trustworthy and cannot be discarded on the basis of minor omissions and contradictions as also on the ground that the witness of seizure of ‘Falia’ Guman (PW 2) has turned hostile. 11. The defence tried to be set up by the appellant in the cross-examination of Hinglibai that she was having illicit relationship with one Pratap and it was not acceptable to the appellant, and therefore, she has falsely implicated the appellant, has not been proved by the appellant by leading any cogent evidence, and as such, has rightly not been believed by the trial Court. 12. As a result, we are of the view that no case is made out to interfere into the impugned judgment of conviction passed by the trial Court. The appeal fails and is hereby dismissed.