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Madhya Pradesh High Court · body

2015 DIGILAW 664 (MP)

Fateh Singh v. State of M. P.

2015-06-30

N.K.GUPTA

body2015
JUDGMENT : N.K. Gupta, J. 1. The appellant has preferred the present appeal being aggrieved with the judgment dated 10.9.1997 passed by the Sessions Judge, Sehore in S.T. No. 15/1993, whereby the appellant has been convicted of offence under Section 304(II) of the IPC and sentenced to four years R.I. 2. Facts of the case in short are that on 9.11.1992, a bonfire was ignited in the field of Bhagirath father of the appellant at village Molga (Police Station Ichchhawar, District Sehore) at about 6:00 a.m. in the morning. The Jagan Nath Singh went to bask that bonfire to get his hands and body warm, the appellant abused the deceased Jagan Nath Singh and asked him as to why he came there to bask and thereafter, he gave a blow with a heavy log on the head of the deceased Jagan Nath. Meharban Singh (PW-9) brother of the deceased Jagan Nath, who was working in Khalihan (a place where grains were to be shifted from the chafe) rushed to the spot. The appellant also tried to assault the complainant Meharban Singh. However, Ghasiram (PW-1) had stopped the appellant. Meharban Singh took his brother Jagan Nath to the Government Hospital at Ichchhawar and thereafter, he lodged an FIR Ex.P/12 at Police Station, Ichchhawar. Dr. Laxmi Narayan Namdeo (PW-5) examined the victim Jagan Nath and gave his report Ex.P/7. He found a swelling on his right head, which was also present on a upper eyelid. His breath was irregular and pupils were slightly dilated. He was unconscious and his situation was dangerous. Ultimately, the deceased Jagan Nath succumbed to the injuries. After death of the deceased, his body was sent for the postmortem to the medico legal institution at Bhopal. Dr. D.S. Badkul (PW-6) performed the postmortem upon the body of the deceased and gave his report Ex.P/8. According to him, a stitch wound was found on right side of his head on its opening various bones of skull were found broken. Blood was collected below right parietal and temporal region and his dural membrane was found cut. Blood was oozing from right side of brain below the frontal region. Bone above right eye was also found broken. Brain was swelling and the deceased died due to the injuries caused on his head and brain. Blood was collected below right parietal and temporal region and his dural membrane was found cut. Blood was oozing from right side of brain below the frontal region. Bone above right eye was also found broken. Brain was swelling and the deceased died due to the injuries caused on his head and brain. After the investigation, the charge sheet was filed before the JMFC Sehore, who committed the case to the Court of Sessions. 3. In the Sessions Court, it was pleaded that the appellant was suffering from mental illness and therefore, an enquiry under Section 229 of the Cr.P.C. was held by the trial Court. After examining various witnesses under Section 229 of the Cr.P.C., the trial Court vide order dated 29.9.1993 sent the appellant to the mental asylum and trial was stayed. Ultimately, after getting the report from the Mental Hospital Indore, vide order dated 7.6.1997, it was found that the appellant was not insane and trial may proceed against him thereafter, the trial has been proceeded. The appellant abjured his guilt. He did not take any specific plea in defence and therefore, no defence evidence was adduced. 4. The Sessions Judge, Sehore after considering the prosecution's evidence, acquitted the appellant from the charge of offence under Section 302 of the IPC but convicted him for offence under Section 304(II) of the IPC and sentenced as mentioned above. 5. I have heard the learned counsel for the parties. 6. First of all, it is to be considered as to whether death of the deceased was homicidal in nature or not. In this connection, it would be apparent that the deceased was taken to the District Hospital, Sehore by his brother Meharban Singh (PW-9), where he was examined by Dr. Laxmi Narayan (PW-5) and gave a report Ex.P/7. Condition of the deceased Jagan Nath was dangerous and there was a swelling on right side of his head and symptoms of brain haemorrhage were visible. Dr. D.S. Badkul (PW-6), who performed the postmortem on the body of the deceased Jagan Nath and gave his report Ex.P/8 found that there was a stitch at two places on right side of his head and it appears that a surgery was done to cure him. However, various bones of head were found broken and his brain was also injured and therefore, he could not be saved. According to the Dr. However, various bones of head were found broken and his brain was also injured and therefore, he could not be saved. According to the Dr. Badkul (PW-6), the deceased died due to the injuries caused on his head and brain. He gave his opinion in para 10 of his deposition that death of the deceased was homicidal in nature. Looking to the injuries caused to the deceased Jagan Nath, opinion given by Dr. Badkul is correct and therefore death of the deceased Jagan Nath was homicidal in nature. 7. Learned senior counsel for the appellant has submitted that the witness Ghasiram/o Puran Singh (PW- 1), Ghasiram S/o Ganpat Singh (PW-2), Chander Singh (PW-4) & Gajraj Singh (PW-8) were examined as eyewitnesses and they have stated that they did not see the incident. They were informed by brother of the deceased that it was the appellant, who assaulted the deceased by a heavy log on his head. Under these circumstances, the statements of these witnesses falls within the purview of 'hearsay' evidence and therefore, their testimony has no value in the case. Ghasiram S/o Ganpat Singh (PW-2) has accepted that Meharban Singh (PW-9) brother of the deceased Jagan Nath came to the spot when a bullock cart was arranged to take the injured deceased Jagan Nath and therefore, he was not an eyewitness. It is submitted that the testimony of Meharban Singh (PW-9) be discarded and there is no ocular evidence against the appellant, whereas chain of circumstantial evidence is broken. 8. It is true that all other eyewitnesses except Meharban Singh (PW-9) have turned hostile. Those witnesses were basking in bonfire ignited near the fields of the appellant and therefore, they must had relations with the appellant and they may be bound to state in favour of the appellant. The witness Ghasiram S/o Ganpat Singh (PW-2) has stated in para 10 in his evidence that he is a close relative of the appellant and therefore, certainly the witness Ghasiram would have stated against the witness Meharban Singh to save the appellant. The testimony of Ghasiram S/o Ganpat (PW-2) cannot be believed and by his statement, the testimony of Meharban Singh (PW-9) cannot be discarded. Meharban Singh (PW-9) was though brother of the deceased but nothing could be brought in his cross-examination to discard his testimony. The testimony of Ghasiram S/o Ganpat (PW-2) cannot be believed and by his statement, the testimony of Meharban Singh (PW-9) cannot be discarded. Meharban Singh (PW-9) was though brother of the deceased but nothing could be brought in his cross-examination to discard his testimony. Meharban Singh (PW-9) had lodged the FIR Ex.P/12 in which, it was clearly stated that he went to the spot and saw the incident and the appellant also chased him to assault but the witness Ghasiram (PW-1) saved him. However, in the case diary statement, Meharban Singh has accepted that when he reached to the spot, he found that the appellant had a log in his hand and his brother Jagan Nath was lying on the earth and thereafter, when the witness Meharban Singh asked about the incident from the appellant, he rushed upon him to assault. Looking to the case diary statement of witness Meharban Singh (PW-9), it would be apparent that he did not see the event when, the appellant assaulted the deceased Jagan Nath on his head but, he reached the spot soon after the assault therefore, practically it cannot be said that he was an eyewitness. The contention of learned senior counsel may be accepted upto that extent in the light of the case diary statement Ex.D/1 of the witness Meharban Singh (PW-9). 9. However, the submissions made by learned senior counsel for the appellant cannot be accepted on the ground that chain of circumstantial evidence is broken. If the witness states a falsehood at one place then, his entire evidence cannot be discarded. The maxim “falsus in uno, falsus in omnibus” (false in one thing, false in everything) is neither a sound rule of law nor rule of practice. The Hon'ble Apex Court in the case of “Ugar Ahir Vs. State of Bihar (: AIR 1965 SC 277 ) has held that there is nobody on the earth, who never stated any falsehood. An illiterate person can say a falsehood for a particular evidence but his remaining evidence cannot be discarded due to his falsehood at a place. It is the duty of the Court to pick up the grains from chasm of falsehood but the Court is not permitted to create a new story. An illiterate person can say a falsehood for a particular evidence but his remaining evidence cannot be discarded due to his falsehood at a place. It is the duty of the Court to pick up the grains from chasm of falsehood but the Court is not permitted to create a new story. In the light of the judgment of Ugar Ahir (supra), if the evidence of Meharban Singh (PW-9) is considered then, it would be apparent that when he reached to the seen of occurrence, his brother Jagan Nath had already fallen on the earth and the appellant had a heavy log in his hand when, he asked about the incident then, the appellant chased Meharban Singh to assault him, but one Ghasiram (PW-1) saved him. The eyewitnesses namely Ghasiram S/o Pooran Singh (PW-1), Ghasiram S/o Ganpat Singh (PW-2), Chander Singh (PW-4) and Gajraj Singh (PW-8) though turned hostile but they did not say that someone else had assaulted the deceased Jagan Nath. On the contrary, all of them have stated that later on, they were informed that the incident was caused by the appellant. The witness Meharban Singh went to the District Hospital Sehore alongwith his brother so that a treatment of brother may be initiated and thereafter, he went to lodge an FIR. In the FIR Ex.P/12, which was lodged within one hour and 45 minutes of the incident, it was clearly mentioned that the appellant assaulted the victim by a log. According to the MLC report Ex.P/7 proved by Dr. Laxmi Narayan Namdeo (PW-5) and the postmortem report Ex.P/8 proved by Dr. Badkul (PW-6), it is apparent that the injuries found to the deceased Jagan Nath could be caused with a heavy log. If various bones of head were broken by a single stroke then, it would be clear that a blow was given with a heavy weapon like log. Hence, by timely lodged the FIR Ex.P/12 and the MLC report Ex.P/7 as well as the postmortem report Ex.P/8, the testimony of witness Meharban Singh (PW-9) was proved beyond doubt. 10. If all the circumstances proved by the prosecution are considered simultaneously, then it is proved that when Meharban Singh went to the spot, he found that his brother Jagan Nath had already fallen on the earth and he was injured. 10. If all the circumstances proved by the prosecution are considered simultaneously, then it is proved that when Meharban Singh went to the spot, he found that his brother Jagan Nath had already fallen on the earth and he was injured. Secondly, that there was no one except the appellant, who held a heavy log in his hand. Thirdly, when Meharban Singh asked about the incident then, due to guilty conscious, the appellant chased him and tried to assault him. The witness Ghasiram saved him. Fourthly, a single injury was found to the deceased and death was caused due to single blow as shown in the postmortem report Ex.P/8. Under these circumstances, a chain of circumstantial evidence is complete and it is proved that the appellant gave a powerful blow on the head of the deceased causing his death. 11. Learned senior counsel for the appellant has submitted that Dr. S.K. Tondon (PW-1), who was examined under Section 229 of the Cr.P.C. has found that the appellant was suffering from psychosis, whereas Dr. Savita Garde (PW-2), who was also examined under Section 229 of the Cr.P.C. has informed that the appellant was deaf from his both ears and therefore, he had committed the crime due to insanity. However, it would be apparent that crime was committed on 9.11.1992 and Dr. S.K. Tondon examined the appellant on 26.4.1993. Dr. Tondon could not opine about the condition of the appellant as on the date of incident as he had examined him on 26.4.1993. No evidence has been adduced by the appellant to show his mental condition dated 9.11.1992, no single document was filed in defence to show that the appellant was suffering from psychosis prior to the incident. According to the witness Meharban S/o Ranjit (PW-1), the appellant was suffering from deafness but he could understand the noise and relationship by indication. The witness Meharban S/o Ranjit (PW-1), who was step brother of the appellant was examined under Section 229 of the Cr.P.C. and therefore according to his evidence, the appellant was not suffering from any mental illness prior to his arrest. It is possible that in the jail, nobody could understand the version of the appellant by indications and the possibility cannot be ruled out that psychosis was developed to the appellant in the jail. It is possible that in the jail, nobody could understand the version of the appellant by indications and the possibility cannot be ruled out that psychosis was developed to the appellant in the jail. If the appellant was suffering from that mental illness then, his treatment papers prior to the incident could be produced before the Court but such papers have not been produced. Hence, the appellant has failed to prove that he was mentally sick at the time of incident and he could not understand his act by which he committed a crime. Under these circumstances, it cannot be said that case of the appellant falls within the purview of Section 84 of the IPC. 12. The Sessions Judge, Sehore has already examined other facts of the case and acquitted the appellant from the charge of offence under Section 302 of the IPC and he has been convicted of offence under Section 304(II) of the IPC therefore, it is not required to discuss such a situation again in the appeal, where no State appeal has been filed against the acquittal for the charge of offence under Section 302 of the IPC. Under such circumstances, the prosecution has proved by the circumstantial evidence that the appellant was the person, who gave a powerful blow on the head of the deceased Jagan Nath with a heavy log and consequently, he died. The appellant cannot be given any advantage of Section 84 of the IPC and therefore, the trial Court has rightly found that the appellant had committed an offence under Section 304(II) of the IPC. 13. So far as the sentence is concerned, though the appellant was the first offender, who is completely deaf but it was not proved at all that he was suffering from psychosis at the time of incident and therefore, no latitude can be given, if the appellant was suffering from deafness. If the deceased Jagan Nath went to bonfire for basking then, in absence of any enmity between the parties, it was not objectionable so that the appellant would have given a powerful blow with a heavy log on the head of the deceased and therefore, no much latitude can be given to the appellant for consideration of sentence. However, in the case of “Subramani @ Jeeva @ Kullajeeva Vs. However, in the case of “Subramani @ Jeeva @ Kullajeeva Vs. Station House of Officer of Police Station, Odiyansalai [: (2011) 14 SCC 454 ] in which, in similar circumstance, the Hon'ble Apex Court imposed three years R.I. sentence upon the accused and therefore, in the light of the judgment passed in the case of Subramani (supra), sentence of the appellant can be reduced from the period of four years R.I. to the period of three years R.I. by enhancement of some fine amount. 14. On the basis of aforesaid discussion, the present appeal filed by the appellant is hereby partly allowed. His conviction under Section 304(II) of the IPC is hereby maintained but jail sentence is reduced from four years R.I. to three years R.I. by imposing a fine of Rs. 5,000/- (Rupees five thousand) in addition. In default of payment of fine, he shall undergo for six months R.I. in addition. If fine is deposited then, the entire amount be awarded to the family of the deceased Jagan Nath by way of compensation. 15. At present, the appellant is on bail. He is directed to surrender before the trial Court immediately to undergo the remaining sentence. His entire custody period during trial and appeal shall be adjusted with the main sentence. 16. Copy of the judgment be sent to the trial Court alongwith its record for information and an immediate compliance.