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2013 DIGILAW 1303 (MP)

Bhadari S/o Surajlal v. State of M. P.

2013-10-28

A.K.SHRIVASTAVA, VIMLA JAIN

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JUDGMENT : A.K. SHRIVASTAVA, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 18-7-2008 passed by learned Sessions Judge, Chhindwara in Sessions Trial No. 274/2006 convicting the appellant under section 302 of the Indian Penal Code and thereby sentencing him to suffer Life Imprisonment and fine as mentioned in the impugned judgment, appellants have knocked the doors of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. No exhaustive statement of facts are required for the purpose of disposal of this appeal since, in elaboration, they are mentioned from Para 3 onwards of the impugned judgment. However, for ready reference, it would be germane to mention here that when Chetu (hereinafter referred to as “the deceased”) was in his field in the afternoon at that juncture his son Bhagwan Das (PW-3) rushed to his house and told to his mother Smt. Ranoti Bai (PW-1) that appellant had killed the deceased by pelting stone boulder upon him. On hearing about the incident, she along with her son Bhagwan Das (PW-3) rushed towards the field and found that her husband (deceased) was lying and blood was oozing from the wounds and he was having injuries upon his head. Immediately she uplifted the deceased and brought him in a hut and offered water to him. On being asked by her, that who caused the injuries, the deceased told that appellant pelted stone boulder upon him. After sometime the deceased breathed his last. Thereafter, the complainant went to the village and narrated the entire incident to the inhabitants of the village and thereafter, an FIR Ex.P/1 was lodged by her. 3. On lodging of the First Information Report, the criminal law was triggered and set in motion. The investigating agency arrived at the spot; sent the body for post-mortem; prepared spot map and recorded the statement of witnesses; arrested the accused and seized the stone boulder which was used as a weapon at the time of commission of offence. 4. After the investigation was over, a charge-sheet was submitted in the committal Court who committed the case to the Court of Session, where the appellant was tried. 5. Learned trial Judge on the basis of allegations made in the charge-sheet, framed charge for the offence punishable under section 302 of Indian Penal Code against the appellant/ accused. 4. After the investigation was over, a charge-sheet was submitted in the committal Court who committed the case to the Court of Session, where the appellant was tried. 5. Learned trial Judge on the basis of allegations made in the charge-sheet, framed charge for the offence punishable under section 302 of Indian Penal Code against the appellant/ accused. Needless to say, that the appellant abjured his guilt and pleaded complete innocence and requested for trial. 6. In order to prove the charge of section 302 of Indian Penal Code, the prosecution examined as many as 9 witnesses (PW-1 to PW-9) and also brought and proved certain documents. 7. The defence of the appellant is of false implication and the same defence was set forth by him in his statement under section 313 of the Criminal Procedure Code. In support of his defence, he also examined 3 witnesses Jugan (DW-1), Gani Uikey (DW-2) and Gangaprasad (DW-3). 8. Learned trial Judge, on the basis of evidence placed on record, came to hold that the appellant did commit the offence under section 302 of the Indian Penal Code and eventually, convicted him to suffer life imprisonment and to pay fine which we have already mentioned hereinabove. 9. In this manner, this appeal has been filed by the appellant challenging his conviction and order of sentence. 10. The contention of Shri Anand Nayak, learned counsel for the appellant is that the sole eye-witness to the incident is Bhagwan Das (PW-3), who is a child witness and, therefore, his testimony should be considered with great care and caution. Learned counsel for the appellant submits that if his statement is read in true perspective, it cannot be said that he had seen the incident and the evidence of Smt. Ranoti Bai (PW-1) who is the wife of the deceased and who at the time of incident was present in her home was told by (PW-3) about the incident but Bhagwan Das (PW-3) is not reliable witness. Hence the evidence of PW-1 cannot be relied upon. Thus, it has been prayed that by allowing this appeal, the appellant be acquitted from the charge under section 302 of Indian Penal Code. 11. Hence the evidence of PW-1 cannot be relied upon. Thus, it has been prayed that by allowing this appeal, the appellant be acquitted from the charge under section 302 of Indian Penal Code. 11. An alternative submission has been put forth by learned counsel for the appellant that if this Court come to the conclusion that on account of pelting stone boulder upon the deceased by the appellant, he had died since the incident had occurred all of a sudden because the cattle of the deceased entered into the field of appellant and damaged his crop, therefore, firstly some altercation took place between the appellant and the deceased and during the hot altercation if the stones have been pelted by the appellant, at the most the case would come under section 304 Part-II of Indian Penal Code. Learned counsel submits that appellant has suffered jail sentence of 7 years and 4 months and this could be appropriate punishment for the offence he has committed. 12. On the other hand, learned Public Prosecutor has argued in support of the impugned judgment and submitted that there is overwhelming evidence of the prosecution proving the charge under section 302 of Indian Penal Code and, therefore, it has been prayed that the appeal be dismissed. 13. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 14. In the present case, the sole eye-witness is Bhagwan Das (PW-3). We have carefully gone through the testimony of this witness and we find that specifically this witness has deposed that he was present in the field along with his father (deceased) when the incident had occurred. In Para 4 of cross-examination, the sole eye-witness has admitted that the Ox of the deceased entered inside the field of one Ganga Prasad (DW-3) which has been taken on Batai by the appellant and on this point altercation started between the appellant and the deceased. He has further admitted that in the altercation, exchange of abuses also took place between appellant and the deceased and both of them scuffled with each other. Thereafter the appellant uplifted the stone boulder and threw it upon the deceased resulting into his death. True, this witness is a child witness having age of 12 years but his evidence is reliable in view of section 118 of the Indian Evidence Act. Thereafter the appellant uplifted the stone boulder and threw it upon the deceased resulting into his death. True, this witness is a child witness having age of 12 years but his evidence is reliable in view of section 118 of the Indian Evidence Act. According to which all the persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them, or from giving rational answers to those questions, by tender years, extreme old age, disease, whether of body or mind, or any other cause of the same kind. But no such infirmity has been found in this witness and, therefore, according to us learned Trial Court has rightly relied upon the testimony of (PW-3) Bhagwan Das. Further this witness remained embedded in his version despite there being a roving cross-examination over him and he has specifically stated that the appellant threw stone boulder upon the deceased which resulted into his death. 15. That apart, immediately after the incident has taken place, the aforesaid eye-witness Bhagwan Das (PW-3) rushed to his home and told the entire incident to his mother Smt. Ranoti Bai (PW-1) who upon hearing the incident from the mouth of his son rushed to the spot along with him and found that the deceased was lying smeared in the blood. On being asked by Smt. Ranoti Bai (PW-1) to the deceased that who had caused injuries to him, he (deceased) told that appellant pelted the stone upon him as a result of which he had received the injuries. Thereafter the deceased died in the hut where he was uplifted and kept by Smt. Ranoti Bai (PW-1). According to us, the statement of Smt. Ranoti Bai is a relevant piece of evidence under section 157 of the Evidence Act because immediately after the incident had occurred the eye-witness Bhagwan Das (PW-3) told about the incident to her. Looking to the duration of the incident when it had occurred and the time which was taken by Bhagwan Das (PW-3) to narrate the entire episode to Smt. Ranoti Bai (PW-1), we find that within such short time it cannot be said that (PW-3) was tutored by somebody and, therefore, his testimony cannot be disbelieved. Thus, the evidence of Smt. Ranoti Bai (PW-1) is a relevant piece of evidence and is admissible in evidence under section 157 of the Evidence Act. Thus, the evidence of Smt. Ranoti Bai (PW-1) is a relevant piece of evidence and is admissible in evidence under section 157 of the Evidence Act. In this context we may profitably place reliance upon the decision of the Supreme Court in the case of Rameshwar S/o Kalyan Singh vs. State of Rajasthan, AIR 1952 (39) SC 54 and we have also gone through the dictum laid down by the Apex Court in this regard in Para 29 which is fully applicable in the present case. There are two more decisions of Supreme Court on this point. In Smt. Chander Kala vs. Ram Kishan and Another, AIR 1985 SC 1268 in the same circumstances, the Apex Court held that the testimony of the said witness who has been informed about the incident by eye-witness soon after the incident is a relevant piece of evidence under section 157 of the Evidence Act. The other decision of the Supreme Court in State of Tamil Nadu vs. Suresh and Another, 1998 Cri. L.J. 1416 in which same principles have been followed. These three decisions have been placed reliance by the Division Bench of this Court in Balram alias Ballu and Another vs. State of M.P. 2010 (3) JLJ 162 . 16. Hence, we do not have any scintilla of doubt in our mind to hold that Bhagwan Das (PW-3) has seen the incident and when he told the entire episode to his mother Smt. Ranoti Bai (PW-1) who is the wife of the deceased, she rushed towards the field along with his son Bhagwan Das (PW-3) and found that her husband (deceased) was lying in the field having injuries and blood was oozing from the wounds. That apart, on being asked by Smt. Ranoti Bai (PW-1) to the deceased that who had caused injuries to him, he (deceased) replied that appellant pelted stone boulder as a result of which he has sustained the injuries. The deceased had died on the spot after sometime and, therefore, there is an oral dying declaration of the deceased to this witness (PW-1) which is quite reliable. The Supreme Court in Vishram and Others vs. State of M.P. AIR 1993 SC 250 has categorically held that conviction can be based upon the oral dying declaration. The deceased had died on the spot after sometime and, therefore, there is an oral dying declaration of the deceased to this witness (PW-1) which is quite reliable. The Supreme Court in Vishram and Others vs. State of M.P. AIR 1993 SC 250 has categorically held that conviction can be based upon the oral dying declaration. The present case is rather on a better footing because in the present case the testimony of the eye-witness is corroborated with the evidence of Smt. Ranoti Bai (PW-1). 17. The testimony of eye-witness Bhagwan Das (PW-3) and Smt. Ranoti Bai (PW-1) is also corroborated by the evidence of Autopsy Surgeon Dr. B.S. Uike (PW-6) and the postmortem report of the deceased Ex.P/7. The injuries sustained by the deceased are also mentioned by the Trial Court in para 11 of the impugned judgment. 18. Thus, after examining the entire episode, the evidence and other facts and circumstances, from different angles there is no scope to hold that appellant did not pelt the stone boulder upon the deceased resulting into the injuries sustained by him. Indeed the learned Trial Court after appreciating and marshalling the evidence arrived at the conclusion that on account of pelting of stone boulder by the appellant the deceased has died. After going through the findings recorded by the Trial Court, we find that after correct appreciation and marshalling of the evidence of witnesses the said finding has been arrived at by the learned Trial Court. Hence, the findings so arrived at by the learned Trial Court is hereby affirmed. 19. Yet there is another facet of the matter and we shall now consider the alternative submission put-forth by the learned counsel for the appellant. Rightly it has been pointed out by him by inviting our attention to the cross-examination of Para 4 of the sole eye-witness Bhagwan Das (PW-3) by arguing that at the time of incident the Ox of the deceased entered inside the field of Ganga Prasad (DW-3) which the appellant had taken on Batia (crop sharer) and upon this, first of all hot altercation took place between the appellant and the deceased and thereafter exchange of abuses also took place. Not only this thereafter both of them scuffled with each other. At that juncture the appellant uplifted the stone boulder and threw it upon the deceased. Not only this thereafter both of them scuffled with each other. At that juncture the appellant uplifted the stone boulder and threw it upon the deceased. Thus, according to us this act of the appellant would come within the ambit and scope of Exception 4 to section 300 of the Indian Penal Code and hence, he has committed the offence punishable under section 304 Part-I of Indian Penal Code. We do not find any merit in the contention of the learned counsel for the appellant that offence under section 304 Part-II of Indian Penal Code would be applicable. According to us, the appellant was having knowledge that if the stone boulder is thrown upon the head of the deceased, he may die and, therefore, there was an intention to kill the deceased. Thus, the offence committed by the appellant is altered from section 302 to section 304 Part-I of Indian Penal Code and he is directed to suffer R.I. of 10 years along with the fine as mentioned in the impugned judgment. 20. Resultantly, this appeal succeeds in part and judgment of conviction and order of sentence is modified to the extent indicated hereinabove.