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2014 DIGILAW 226 (CHH)

Bhagwati v. State of M. P.

2014-06-19

PRITINKER DIWAKER, YATINDRA SINGH

body2014
JUDGMENT 1. This appeal arises out of the judgment of conviction and order of sentence dated 15.4.1999 passed by the 1st Additional Sessions Judge, Raipur in ST. No. 449/96 convicting each of the accused/appellants under Sections 147& 302/149 of IPC and sentencing each of them to undergo RI for six months and life imprisonment respectively. In the present case, name of the deceased is Chini @ Kunjram. It is not in dispute that the accused persons, total six in number, arrayed in the case and the deceased, are close relatives. Case of the prosecution is that accused/appellant Parmeshwar Satnami had taken Rs. 1000/- from the deceased, who used to demand back his amount. As per evidence on record, a village meeting was called and in the said meeting, accused/appellant Parmeshwar had returned the amount of Rs. 1000/- to deceased Chini @ Kunjram. Further case of the prosecution is that on 19.3.1996 the deceased entered the house of the accused persons after consuming liquor and demanded back his amount. There was some quarrel between the deceased and the accused persons. When the deceased tried to assault the accused persons, accused/appellant Bhagwati caused two injuries to Chini by a spear-like knife as a result of which he died. FIR (Ex. P/31) was lodged by PW-17 Shivprasad @ Shivlal on 19.3.1996 and merg intimation (Ex. P/32) was also recorded at his instance on the same day. Postmortem on the body of deceased Chini @ Kunjram was conducted by Dr. Bhagwat Deshlahra (PW-21), and he opined that the cause of death is syncope due to excessive bleeding and penetrating injury on vital part vide Ex.P/54. After investigation, charge sheet was filed against the accused/appellants under Sections 147, 148, 149, 302 of IPC and thereafter, charges under Sections 148 & 302 of IPC were framed against accused/appellants Parmeshwar and Harelia Bai whereas charges under Sections 147 & 302/149 of IPC were framed against accused/appellants Bhajgwati and Choliyabai. 2. In order to hold the accused/appellants guilty, the prosecution examined 22 witnesses in all. Statements of the accused/appellants were recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence they stated that on the date of incident the deceased had come to their house and demanding back the amount of Rs. 1000/-. Statements of the accused/appellants were recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence they stated that on the date of incident the deceased had come to their house and demanding back the amount of Rs. 1000/-. When they told him that they have already given him the said amount, he started quarreling with them. Thereafter, village Panchayat was convened wherein one Punuram admitted that the accused persons have already given Rs. 1000/- to the deceased, on which the Panchas told the deceased that he should not quarrel with the accused persons when he has already received the amount and thereafter, the deceased went from the said Panchayat threatening the accused persons that he would take back his amount anyhow. After some time, when the deceased again came to their house in a drunken condition carrying knife in his hand and demanded Rs. 1000/- from them, out of fear they went inside a room and locked the same. Apart from this, accused/appellant Bhagwati has further stated that when they had locked themselves in a room, the deceased went to another room and having broken open the lock of one box lying there. Took out some money from it and was moving away from there. At that time, she (Bhagwati) stopped him and a scuffle took place between them, the deceased sat on her chest, his knife fell from his hand and he was trying to press her neck. During this process, she picked up the said knife and in her self defence assaulted the deceased with knife. 3. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellants as mentioned in para-1 of this judgment. 4. During this process, she picked up the said knife and in her self defence assaulted the deceased with knife. 3. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment convicted and sentenced the accused/appellants as mentioned in para-1 of this judgment. 4. Contention of learned counsel for the appellants is as under: "(i) that the accused/appellants have been convicted on the sole testimony of PW-16 Santosh Kumar but this witness is not reliable and even the trial Court has disbelieved his evidence; (ii) that there is absolutely no evidence against accused/appellants No. 2, 3 & 4 and therefore, under no circumstances, these appellants can be convicted for any offence; (iii) that though in her statement under Section 313 of Cr.P.C. accused/appellant Bhagwati has admitted the fact that it is she who caused injuries to the deceased by knife, but the act of this appellant was in her self defence and thus, even this appellant can not be convicted for any offence; (iv) that appellant No. 1 Bhagwati is a lady, has already remained in jail for more than 3 years, the incident is of the year 1996 and therefore, even if she is held to be guilty for any offence, her sentence may be reduced to the period already undergone by her." 5. On the other hand, supporting the impugned judgment learned counsel for the State submits as under: "(i) that statement of PW-16 Santosh Kumar is fully reliable and therefore, on the basis of his evidence the accused/appellants are liable to be convicted; (ii) that in fact all the accused/appellant have actively participated in commission of the murder of the deceased. Accused/appellant No. 1 has categorically admitted the fact in her statement under Section 313 of Cr.P.C. that it is she who caused knife blows to the deceased and therefore, in the given facts and circumstances of the case, she can not derive any benefit of right of self defence;" 6. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 7. PW-1 Shantanu Kumar and PW-2 Sammat are hearsay witnesses. They came to know about the incident after it had taken place. They have not stated anything specific against the accused/appellants and have been declared hostile. Heard learned counsel for the parties and perused the material available on record including the impugned judgment. 7. PW-1 Shantanu Kumar and PW-2 Sammat are hearsay witnesses. They came to know about the incident after it had taken place. They have not stated anything specific against the accused/appellants and have been declared hostile. PW-3 Motiram, who is a witness to memorandums (Ex.P/3, P/4 & P/5) of the accused/appellants and seizures (Ex.P/6 to P/11) has also been declared hostile. PW-4 Bhagchand, a witness to inquest (Ex.P/17), has not supported the prosecution case and has been declared hostile. PW-5 Ratandas, village Kotwar, has not stated anything specific against anyone. PW-6 Bhojabai wife of the deceased, who was informed about the entire incident by her son Santosh Kumar (PW-16), has not stated anything specific against the accused persons. PW-7 Revaram, who came to know about the incident through accused/appellant Bhagwati, has not stated anything specific against anyone. PW-8 Munuram and PW-9 Kaliram are witnesses to Panchayat meeting. They have stated that in the village Panchayat Rs. 1000/- was returned by accused/appellant Parmeshwar to the deceased. However, at the later stage these witnesses have also been declared hostile. PW-10 Ashok Kumar, Head Constable, took the body of the deceased for postmortem and after postmortem handed over the same to Santosh Kumar vide Ex.P/25. PW-11 Dubechand who came to know about the incident after it had taken place, has been declared hostile. PW-12 Ramoutibai has not supported the prosecution case and has been declared hostile. PW-13 Samer Singh has stated that there was some dispute between the deceased and the accused persons as the deceased was demanding back amount of Rs. 1000/- and the said amount was returned by Parmeshwar. He is also a witness to seizure (Ex.P/18. P/19 & P/20). However, this witness has also been declared hostile. PW-14 Bhuneshwar Prasad Verma, Patwari, who prepared the spot map (Ex.P/29) proved the same. PW-15 Kriparam has not stated anything specific against the accused/appellants and has been declared hostile. 8. PW-16 Santosh Kumar is son of the deceased, in his examination-in-chief he has stated that on the date of incident he was playing in the courtyard of his house, when he returned to his house he was informed by Shivdas that his father has been killed by someone and that he is lying in the house of Choliyabai. 8. PW-16 Santosh Kumar is son of the deceased, in his examination-in-chief he has stated that on the date of incident he was playing in the courtyard of his house, when he returned to his house he was informed by Shivdas that his father has been killed by someone and that he is lying in the house of Choliyabai. When he (PW-16) reached the house of Choliyabai, he found his father lying there in an injured condition. He has stated that he was not aware about any quarrel between the accused persons and his father nor is he aware about any monetary dispute between them. At this stage, this witness was declared hostile. However, in cross-examination he has stated that there was a monetary dispute between the accused persons and his father, when his father had demanded the amount of Rs. 1000/- from Parmeshwar, Parmeshwar told him that he had already given the said amount. Further, he has stated that Panchayat meeting was called, which was attended by about 30-40 persons and there it was informed by Parmeshwar that he had returned the entire amount to the deceased. He claimed to have witnessed the entire incident by peeping in through hole of the door of his house. He has stated that he saw the accused persons beating his father and it is accused/appellant Harelia who inflicted knife injuries on him. In para-12, he has admitted the fact that on the date of incident his father was in a drunken condition and as he was under intoxication, he did not have his dinner. Further suggestions were given to this witness, not only by the counsel but by the Court also and from his statement it appears that he has not been consistent while deposing in the Court as to the manner in which the incident took place and therefore, he has been disbelieved by the trial Court. 9. PW-17 Shivprasad is lodger of FIR (Ex.P/31) and merg intimation (Ex.P/32). PW-18 Bhanwar Singh has been declared hostile. PW-19 H.L. Tiwari, Assistant Sub Inspector, recorded FIR (Ex.P/31) and merg intimation (Ex.P/ 32). PW-20 R.S. Dhruv is the investigating officer. In para-26 of his cross-examination he has stated that during the course of investigation he came to know that the weapon of offence - spear-like knife was of the deceased. 10. PW-21 Dr. PW-19 H.L. Tiwari, Assistant Sub Inspector, recorded FIR (Ex.P/31) and merg intimation (Ex.P/ 32). PW-20 R.S. Dhruv is the investigating officer. In para-26 of his cross-examination he has stated that during the course of investigation he came to know that the weapon of offence - spear-like knife was of the deceased. 10. PW-21 Dr. Bhagwat Deshlahra conducted postmortem on the body of the deceased and prepared postmortem report Ex.P/54. On postmortem, he found one penetrating wound on 2nd rib of left side of chest measuring 7 inch x 3 inch x 1 cm and another penetrating wound below the left ear measuring 3 inch x 2 inch x 1 cm. The said injuries were caused by a sharp and hard object. According to him, the cause of death was syncope due to excessive bleeding and penetrating injury on vital part of the body. 11. PW-22 Dr. M.K. Verma, a Senior Scientific Officer and Assistant Chemical Analyzer, has proved reports Ex.P/55, P/56 and P/57. According to him, human blood was found on the article G-1 (sari of accused/appellant Bhagwati Bai) and G-2 (blouse of accused/appellant Bhagwati Bai). 12. DW-1 Judawan is a witness to village Panchayat. He has staled that in the village Panchayat the deceased was made to understand and Punuram had informed that the amount was returned to the deceased by Parmeshwar. 13. In her statement under Section 313 of Cr.P.C. accused/appellant Bhagwati Bai has stated that on the date of incident the deceased came to their house and was demanding Rs. 1000/- from her mother and brother and when her mother told him that the amount has already been repaid to him, he started quarreling with them, for which a village Panchayat was called wherein it was informed by Punuram that the amount was already given to the deceased by Parmeshwar. Thereafter, the deceased was made to understand by the Panchas that he should not quarrel when he has already received the entire amount. The deceased was asked by the Panchas to go from there. However. While going from the village Panchayat the deceased had threatened that he would anyhow take his amount back. She has further stated that after some time the deceased again came to their house in a drunken condition carrying a spear-like knife in his hand and demanded the money. He started threatening her family members whereupon they locked themselves in a room. She has further stated that after some time the deceased again came to their house in a drunken condition carrying a spear-like knife in his hand and demanded the money. He started threatening her family members whereupon they locked themselves in a room. Thereafter, the deceased went to another room, broke open the lock of the box lying there, took out money from it and while he was going from there, she stopped him whereupon a scuffle took place between them. The deceased sat on her chest, his knife fell from his hand and he was trying to press her neck. However, during this process, she picked up the knife of the deceased and inflicted injuries on him with the said weapon in her self defence. 14. Minute examination of the evidence makes it clear that there is no legally admissible evidence against the other accused/appellants, except appellant No. 1 Bhagwati Bai, that they assaulted the deceased in any manner. Most of the witnesses have not supported the prosecution case and have been declared hostile on account of their evidence being hearsay evidence, which is not otherwise admissible. The only witness who has deposed against the accused persons is PW-16 Santosh Kumar, son of the deceased, but if his entire evidence is taken into consideration, he does not appear to be an eyewitness, rather his evidence his very much shaky because he himself has stated in his examination-in-chief that while he was playing in his courtyard, he was informed by Shivdas that his father has been killed, his body is lying in the courtyard of Choliyabai and thereafter, when he went there, he found his father lying there in an injured condition. On account of there being material contradictions and improvements in his deposition, the trial Court has rightly disbelieved his evidence. Thus taking the entire evidence as it is, we are of the view that the prosecution has not been able to prove beyond reasonable doubt that accused/appellants No. 2 to 4 have committed murder of the deceased. In these circumstances, they are definitely entitled to be acquitted of the charges by extending them benefit of doubt. 15. As regards accused/appellant No. 1 Bhagwati, the dead body was found in the house of the accused/appellants, including that of accused/appellant Bhagwati; as per FSL report human blood was found on her sari (Article G-1) and blouse (Article G-2). In these circumstances, they are definitely entitled to be acquitted of the charges by extending them benefit of doubt. 15. As regards accused/appellant No. 1 Bhagwati, the dead body was found in the house of the accused/appellants, including that of accused/appellant Bhagwati; as per FSL report human blood was found on her sari (Article G-1) and blouse (Article G-2). Most importantly, she herself has categorically admitted in her statement under Section 313 of Cr.P.C. that that it is she who assaulted the deceased with knife. Relevant portion of her statement under Section 313 of Cr.P.C. reads as under: ^^fnukad ?kVuk dks e`rd phuh esjh ek¡ pksfy;k vkSj HkkbZ ijes’oj ls 1]000@ :i;s ekax jgk FkkA esjh ek¡ )kjk dgk x;k fd :i;k eSa igys ls ns pqdh g¡w rc phuh >xM+k djus yxkA bl ij esjh ek¡ iapk;r tksM+h FkhA iquwjke ls iwNrkN fd;s tkus ds ckn iapksa us phuh ls dgk fd :i;s ik pqds gks rks tcju D;ksa >xM+k djrs gksA bl ij iapksa us phuh dks Hkxk fn;k vkSj og dgus yxk fd vkt :i;k ysdj jg¡wxkA dqN nsj ckn phuh Hkh gekjs ?kj ls ;g dgrs fudyk fd ns[krk g¡w :i;k dSls ugha nsrs gksA blds FkksM+h nsj ckn phuh gekjs ?kj pkdw ysdj ?kql x;kA og ‘kjkc ds u’ks esa FkkA esjh ek¡] HkkbZ eq>s lcdks dgus yxk fd :i;s ugha nksxs rks tku ls ekj MkywaxkA bl ij esjh ek¡] HkkbZ] HkkHkh] cgu lHkh ,d dejs esa tku cpkus ?kql x;s vkSj vanj ls lkdy can dj fn;sA phuh ,d nwljs dejs esa tgk¡ isVh j[kk Fkk] ?kql x;kA isVh dk rkyk rksM+dj :i;k fudkydj ys tk jgk Fkk] eSaus euk dh rks eq>s /kDdk nsdj tehu esa fxjk fn;kA Nhuk >iVh esa og Hkh esjs Åij p<+ x;kA mlds gkFk ls pkdw tehu ij fxj x;kA bl ij phuh esjk xyk nckus dk iz;kl dj jgk Fkk fd tehu ij fxjk gqvk pkdw esjs gkFk yx x;kA vius izk.k j{kk ds fy, vius cpko esa eSaus ekjk gSA eSa funksZ”k g¡wA 16. Now the question which arises for consideration of this Court is whether the act of accused/appellant Bhagwati can be said to be an act done in exercise of right of private defence of person or property? 17. Undoubtedly, accused/appellant Bhagwati has not suffered any injury, internal or external, in the said incident. Now the question which arises for consideration of this Court is whether the act of accused/appellant Bhagwati can be said to be an act done in exercise of right of private defence of person or property? 17. Undoubtedly, accused/appellant Bhagwati has not suffered any injury, internal or external, in the said incident. She simply says that when the deceased sat on her chest and was trying to press her neck, she picked up the spear like knife lying there and caused injuries to the deceased with the same. From postmortem report, it is apparent that the deceased sustained one penetrating wound on 2nd rib of left side of chest measuring 7 inch x 3 inch x 1 cm and another penetrating wound below the left ear measuring 3 inch x 2 inch x 1 cm. His cause of death was syncope due to excessive bleeding and penetrating injury on vital part of the body. Thus, considering the facts and circumstances of the case, the nature and quality of ocular as well as medical evidence adduced by the prosecution, in particular the fact that accused/appellant Bhagwati has sustained no injury, we are of the view that she while causing injuries to the deceased in exercise of self defence has exceeded this right and therefore, she can not derive any benefit of the plea of self defence. However, in the totality of the circumstances, the act committed by this appellant amounts to culpable homicide not amounting to murder because though she gave fatal knife blows to the deceased by exceeding the right of private defence of person or property, but said act was without any premeditation and without any intention to kill the deceased. From the evidence it appears that she had no intention to cause such bodily injury to the deceased as was likely to cause his death but had the knowledge that the injury being caused by her was likely to cause his death. Therefore, her conviction under Section 302/149 of IPC can not be sustained, the same is liable to be converted to Section 304 Part-II of IPC. 18. Therefore, her conviction under Section 302/149 of IPC can not be sustained, the same is liable to be converted to Section 304 Part-II of IPC. 18. So far as sentence part is concerned, considering the peculiar facts and circumstances of the case, the fact that accused/appellant Bhagwati Bai is a woman, the incident took place about 18 years back, she has already remained in jail for more than 3 years, we are of the considered opinion that sentence of five years' RI under Section 304 Part-II of IPC would serve the ends of justice. In the result, the appeal is allowed in part. Conviction and sentence of accused/appellants No. 2 to 4 are hereby set aside. They are acquitted of the charges under Sections 147 & 302/149 of IPC. They are on bail, therefore, their bail bonds shall continue for a period of six months from today in view of Section 437-A of Cr.P.C. As regards accused/appellant No. 1 Bhagwati Bai, her conviction and sentence under Sections 147 & 302/149 of IPC are hereby set aside. Instead thereof, she is convicted under Section 304 Part-II of IPC and sentenced to undergo RI for five years. She is also on bail, therefore, her bail bonds stand canceled. She is directed to be taken into custody forthwith to serve out the remaining part of her sentence.