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2018 DIGILAW 512 (MP)

Babulal Dhanak v. State of M. P.

2018-05-18

ANJULI PALO, S.K.GANGELE

body2018
JUDGMENT Palo, J--1. Appellants have filed this appeal challenging the judgment dated 31.12.2007 passed by the Special Judge SC/ST (Prevention of Atrocities) Act, Narsinghpur in Special Case No. 42/2006 whereby the appellants have been convicted under section 302 read with section 34 of the Indian Penal Code and sentenced for life imprisonment and fine of Rs. 500/- with default stipulation. 2. In brief, the prosecution story is that on 20.5.2006 at about 9:30 p.m. at the field of Foolchand Gupta situated at village Budhahar, Tendukheda, complainant Birbal (PW1) was on is duty to watch the field. He heard the cry of his brother Lekhram from the sugarcane field. Birbal (PW1) saw the incident in the light of his torch that appellant No. 1 Babulal was inflictting blow of axe on Lekhram (since deceased). The hands of Lekhram were caught hold by appellant No. 2 Dammu @ Dammar Singh. When Birbal reached near them, appellants ran away towards Tendukheda. Birbal found an axe stuck on the head Lekhram. Lekhram had also sustained other fatal injuries. He died on the spot. Birbal (PW1) informed about the incident to Ghanshyam, Kabbu, Netram, Harprasad and other villagers. Thereafter, FIR was lodged by him at Police Station Tendukheda. After due investigation, charge-sheet was filed under section 302 read with section 34 of IPC against the appellants before the concerned Court. 3. The trial Court convicted appellants for committing murder of Lekhram, particularly on the testimony of eye-witness Birbal (PW1) and its corroboration from the medical evidence. The appellants challenged the aforesaid finding on the grounds that the testimony of Birbal (PW1) is unnatural and unreliable. There are material contradictions in the evidence of other witnesses which indicate that at the time of incident no one was present on the spot nor reached there. There are material omissions also. Santosh (PW8) admitted that he and other villagers did not find the dead body of the deceased on the spot. Looking to the distance between the place where the dead body was lying and from where Birbal (PW1) witnessed the incident it is unbelievable that he was in a position to see the incident. As per the appellants, the trial Court wrongly convicted them on the basis of evidence of interested witnesses, they are liable to be acquitted from the charges levelled against them. 4. Heard learned counsel for the parties at length. Perused the record. 5. As per the appellants, the trial Court wrongly convicted them on the basis of evidence of interested witnesses, they are liable to be acquitted from the charges levelled against them. 4. Heard learned counsel for the parties at length. Perused the record. 5. Learned Government Advocate strongly opposed the contentions of learned counsel for the appellants and submitted that due to some minor contradictions and omissions between the evidence of prosecution witnesses, the appellants are not liable to be acquitted. 6. It is not in dispute that Birbal (PW1) and Ghanshyam (PW3) both are real brothers of the deceased. Harprasad (PW4) is also the close relative / brother-in-law of the deceased. Birbal (PW1) stated that on the date of incident, at about 9 to 10 p.m., he was going to the field situated at Budhahar to look after the sugarcane crops. When he reached near the field of Dalchand Patel, he heard noise of his brother Lekhram coming from the filed of Atul Gupta. 7. Spot map Ex. P-4 prepared by Ravendra Dwivedi (PW10) Investigating Officer indicates that the field of Dalchand Patel was situated at a distance of about 50 feet from the field of Atul Gupta where Birbal (PW1) witnessed the incident. Spot map also shows that appellant Babulal resided near the field of Atul Gupta in his hut. 8. The version of Birbal (PW1) that, at night he guarded the crops of Atul Gupta is found unrebutted. Therefore, at the time of incident at about 9 to 10 p.m., presence of Babulal near the scene of occurrence cannot be ignored. 9. Learned counsel for the appellant contended that at the time of incident, there is rare possibility to see the incident from a distance of 50 feet. 10. As per Dehati Nalishi Ex. P/1, the incident took place on 20.5.2006 at about 9:30 p.m.. The matter was reported to Police Station Tendukheda immediately at 10:55 p.m. In summer days, it is possible to witness the incident in the torch light. It is a general tendency that the villagers who look after the crops at night carry torch with them. Deceased Lekhram was the real brother of Birbal (PW1). He was very well acquainted with the voice of his brother. Similarly, appellants are residents of the same village and known to Birbal. Therefore, Birbal could easily identify them in the light of his torch from 50 feet. Deceased Lekhram was the real brother of Birbal (PW1). He was very well acquainted with the voice of his brother. Similarly, appellants are residents of the same village and known to Birbal. Therefore, Birbal could easily identify them in the light of his torch from 50 feet. We do not find any obstruction between the place where Birbal (PW1) was standing and the place where the incident happened. 11. All the facts deposed by Birbal (PW1) are duly narrated by him to the police. There is no contradiction and omission between his testimony and Dehati Nalishi Ex. P-1. Birbal (PW1) also deposed that after the incident, Harprasad (PW4) also came there. He communicated about the incident to Harprasad and sent him to inform other persons. Other persons came to the spot. 12. Harprasad (PW4) corroborated the testimony of Birbal (PW1). He also heard some noise coming from the field of Atul Gupta. At the same time, he saw Birbal coming from the spot who told him that appellant had killed his brother Lekhram by an axe. Harprasad also corroborated that on the request of Birbal, he went to his house and informed Ghanshyam, Kabbu and other persons. Thereafter, all the brothers and their wives and villagers came to the spot who also saw the body of the deceased. He further deposed that an axe was stuck on the head of the deceased. 13. Birbal (PW1) and Harprasad (PW4) stated about the incident in similar manner. There is no material contradiction and omissions in their testimony. Harprasad has not stated against the appellants that he saw the appellants inflicting blows on the deceased but he deposed that he had heard that appellant Babulal suspected his wife had illicit relationship with the deceased. Earlier also appellant and the deceased had quarreled many times on the aforesaid reason. The deceased also abused appellant Babulal after consuming liquor. 14. In paragraph 7, Harprasad (PW4) also explained that Birbal resided in a hut situated in the field of Dalchand which is adjacent to the field of Atul Gupta. In paragraph 11, he deposed that hut of Babulal was situated at the field of Atul Gupta. Babulal was residing there with his family. Dead body of deceased Lekhram was also found there, therefore, testimony of Birbal (PW1) and Harprasad (PW4) cannot be disbelieved. In paragraph 11, he deposed that hut of Babulal was situated at the field of Atul Gupta. Babulal was residing there with his family. Dead body of deceased Lekhram was also found there, therefore, testimony of Birbal (PW1) and Harprasad (PW4) cannot be disbelieved. If Birbal (PW1) was not able to see the incident, how he informed about the whole incident to Harprasad (PW4). Presence of Harprasad (PW4) near the spot is also found unrebutted. Therefore, we are not inclined to accept the contention of learned counsel for the appellant that Birbal (PW1) falsely stated against the appellants and he did not actually witness the incident. Further, that FIR has been lodged promptly. It also prevented the possibility of framing a concocted story against the appellant because the deceased had illicit relationship with the wife of the appellant Babula, hence, the appellant had motive to kill the deceased. 15. There are also other evidence available on record. Santosh (PW8) Village Sarpanch deposed that after the incident, the family members of Lekhram came together to his house. They informed him that deceased Lekhram was killed by Babulal and his father-in-law Dhammu Dhanak. He himself went to police station to report the matter. Thereafter, police recorded his statement. Thus, Santosh (PW8) also corroborated the testimony of Babulal (PW1) and Harprasad (PW4). 16. Ravendra Dwivedi (PW10) Inspector established that he registered Dehati Nalishi as narrated by Birbal (PW1) He received telephonic message also. Thereafter, he went to the spot and sent the body for postmortem. 17. Dr. T.D.Choudhary (PW7) conducted autopsy of the body of the deceased on the next day. He found the following injuries on the person of the deceased. (i) Incised wound of 17x5x9 cm on the left parietal bone. (ii) Incised wound of 14x5x10 cm on the left parietal bone. (iii) Incised wound on the neck of about 18x5x5 cm. Margins were clear cut. Due to the above injuries, arteries and bones were cut. Blood was clot. (iv) Abrasion of 6x2x5 cm on the right shoulder. 18. Dr. Choudhary (PW7) also internally examined the deceased. He found that both the chambers of the heart were empty. All the injuries were antemortem in nature and homicidal in nature and were caused within 36 hours of the post-mortem. Deceased died due to shock caused by excessive bleeding from his injuries. Dr. 18. Dr. Choudhary (PW7) also internally examined the deceased. He found that both the chambers of the heart were empty. All the injuries were antemortem in nature and homicidal in nature and were caused within 36 hours of the post-mortem. Deceased died due to shock caused by excessive bleeding from his injuries. Dr. Choudhary also examined the axe which was seÁed and opined that the above injuries may be caused by the above axe. 19. We do not find any reason to disbelieve the opinion of Dr. Choudhary which has also supported the prosecution story. Hence, we find the medical evidence has corroborated the ocular evidence. It inspires confidence over the prosecution story. 20. On 24.5.2006, SDOP Rajesh Sharma (PW9) recovered blood stained clothes of appellant Babulal vide seÁure memo Ex. P/9. Similarly, he recovered blood stained shirt and an another axe from Dhammu. All the seÁed articles were sent for chemical examination 21. As per the FSL report Ex. P/17 blood stain was found on the axe which was stuck on the head of the deceased. It was also confirmed that human blood was present on the axe. Similarly, it was also confirmed in the FSL report that on clothes of the appellant Article F and G blood stains were present. This evidence has also supported prosecution story and evidence of Birbal (PW1) and Harprasad (PW4). Appellants failed to offer any explanation about the presence of human blood on their clothes and other articles seÁed from their possession. 22. After considering the entire evidence and record, we are of the considered opinion that the learned trial Court rightly convicted the appellants for committing murder of the deceased Lekhram and awarded proper sentence. Therefore, the appeal filed by the appellants deserves to be and is hereby dismissed. 23. Appellant No. 1 Babulal Dhanak is in jail. Appellant No. 2 Dammu @ Damar Singh is on bail. His bail bonds are canceled and he is directed to surrender immediately before the concerned trial Court to undergo remaining part of the jail sentence, failing which the trial Court shall take appropriate action under intimation to the registry. 24. Copy of the judgment be sent to the Court below for information and compliance along with its record.