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2018 DIGILAW 888 (MP)

Brijlal v. State of M. P.

2018-10-12

A.K.JOSHI, S.A.DHARMADHIKARI

body2018
JUDGMENT Dharmadhikari,J.--1. The present appeal preferred under section 374(2) of the Code of Criminal Procedure assails the judgment of conviction and sentence dated 20.9.2005 passed by Sessions Judge, Shivpuri in S.T. No. 89/05, whereby the appellant has been convicted under section 302 of the IPC and sentenced to undergo rigorous life imprisonment with fine of Rs. 5000/-, in default to suffer 6 months R.I. 2. Prosecution story, in nutshell, is that on 19.2.2005, an FIR was lodged by complainant Kishna Aadivasi (PW1) at Police Station Pohari to the effect that on the last night he and his family members were sleeping separately in their respective homes. At around 12-1 AM, appellant Brijlal, who is son of the complainant, started quarreling with his wife saying that why he was made Up Sarpanch, to which his wife Batibai (PW2) replied that Villagers had made him so and not she. Upon this, he scuffled with her. At this juncture, complainant and other neighbours reached the spot. When they objected, the appellant took his own daughter Guddi aged about 1 year, who was sleeping nearby, and killed by strangulating her in the Courtyard, saying that now he would get implicated the persons who had come to stop him in the murder case of his daughter. Guddi died on spot. The report could not be lodged the same night due to lack of conveyance. The parents-in-law of appellant were there on the spot, but the next day they left for their Village along with Bati (PW2). Upon such intimation, FIR (Ex.P-2) was registered at Crime No. 30/05. During investigation, spot map (Ex.P-4) and Naksha Panchyatnama (Ex.P-5) were prepared. The dead body of deceased Guddi was sent for post mortem examination vide Ex.P-11. Sealed packet was seÁed vide Ex.P-12. Statements of witnesses were recorded and the appellant was arrested. 3. After investigation, charge sheet was submitted in the committal Court, which in turn, committed the case to the Court of Sessions for trial. 4. The learned trial Court framed charges which were denied by the appellant, who claimed to be tried. The prosecution examined as many as 8 witnesses whereas no witness was examined in defence. The sessions Court on the basis of evidence adduced before it, convicted and sentenced the appellant under various counts as mentioned above. Being aggrieved, the appellant has filed the instant appeal. 5. The prosecution examined as many as 8 witnesses whereas no witness was examined in defence. The sessions Court on the basis of evidence adduced before it, convicted and sentenced the appellant under various counts as mentioned above. Being aggrieved, the appellant has filed the instant appeal. 5. Learned counsel for the appellant contended that the trial Court has erred in appreciating the evidence on record. It is submitted that all the material witnesses vÁ. complainant Kishna (PW1), Bati (PW2), Baijanti (PW3), Mahesh (PW4), Manobai (PW6), have turned hostile and the judgment of conviction and sentence passed by the trial Court is based upon mis-appreciation of the evidence on record. It is further submitted that there is absence of mens rea. The burden of proof lied on the prosecution and the prosecution has totally failed in discharging the same. 6. Per contra learned Public Prosecutor has drawn our attention to the reasoning assigned by the trial Court. The offence is a heinous one, moreso in view of the fact that appellant is father of the deceased. It is submitted that although witnesses have later turned hostile during trial, yet it is not fatal to the prosecution, inasmuch as all of them are related witnesses. In fact complainant himself is father of the applicant. Initially the report was lodged by him and in his cross-examination, he has admitted the fact that all of them have entered into a compromise and in this backdrop the trial Court in paragraph 27 of its judgment has rightly held that occasion of compromise would arise only when there has been any offence. Accordingly, it is submitted that there is no illegality or perversity in the order passed by the trial Court and no interference is warranted. 7. We have heard learned counsel for the parties and perused the evidence on record. 8. Before appreciating other evidence brought on record, it would be apt to advert to the medical evidence. Post mortem examination of the deceased has been conducted by Dr. K.D.Shrivastava (PW7). In his report (Ex.P-3), the doctor found as under : "Dead body of little girl aged about one yr, lying supine on the table wearing one woolen jersi, both eyes closed, mouth closed, pupil dilated, conjunctiva congested. Blood stabbed froth came out of mouth and nostrils. Bleeding from ears also occurred. Lips are livid. K.D.Shrivastava (PW7). In his report (Ex.P-3), the doctor found as under : "Dead body of little girl aged about one yr, lying supine on the table wearing one woolen jersi, both eyes closed, mouth closed, pupil dilated, conjunctiva congested. Blood stabbed froth came out of mouth and nostrils. Bleeding from ears also occurred. Lips are livid. Following external ante mortem injuries were found over body : (1) Contusion of sÁe 5 cm x 3 cm at right superolateral aspect of forehead (2) Contusion mark over neck at side and front side" Cause of death was found to be asphyxia due to strangulation by throttling. Death had occurred within 12 to 18 hours of post mortem examination. 9. Thus, from the medical evidence brought on record, homicidal death of deceased is proved beyond reasonable doubt. 10. Now, adverting to the other evidence available on record, Kishna (PW1) is the complainant. He is father of the appellant. He has lodged FIR (Ex.P-2) to the effect on 19.2.2005 that in the night at about 12-1 AM, his son Brijlal i.e. the appellant was unnecessarily quarreling with his wife on the pretext that why he had been made Up-Sarpanch. His wife Bati (PW2) replied that Villagers had made him Up Sarpanch and she had not done so. He started scuffling with Bati. At this juncture, complainant and neighbors reached there and stopped the complainant. Being enraged, appellant took his daughter, who was one year old and sleeping nearby, to the Courtyard and strangulated him. Then he said that now he would get the persons stopping him implicated in the murder case. In his statement (Ex.P-3) recorded under section 161, CrPC the complainant has reiterated the contents of FIR. However, before the trial Court, he has turned hostile. In his cross-examination he denied the FIR version recorded from A to A and has deposed that he had only given intimation as to death of the deceased that someone had killed her. He has further denied giving of statement (Ex.P-3). In paragraph 6 of his cross-examination, he has deposed that he had lodged report about killing of deceased by unknown persons. In paragraph 7 of his cross-examination, he has deposed that his son i.e. the appellant wanted to become Sarpanch, though he denied that appellant was angry for not having been made Sarpanch. In paragraph 6 of his cross-examination, he has deposed that he had lodged report about killing of deceased by unknown persons. In paragraph 7 of his cross-examination, he has deposed that his son i.e. the appellant wanted to become Sarpanch, though he denied that appellant was angry for not having been made Sarpanch. In paragraph 8, he has admitted that Bati, wife of appellant resides with him and they have entered into a compromise. 11. Batibai (PW2) is wife of the appellant and mother of the deceased. Though she reiterated the prosecution version in the statement (Ex.P-6) recorded under section 161, CrPC, yet she has turned hostile before the trial Court. In her cross-examination, on being confronted with her 161 statement, she has denied A to A part thereof. She has deposed that somebody had killed her daughter and she did not know as to who had entered the house and killed her. 12. PW3 Baijanti is mother of the appellant and grandmother of the deceased. She has also resiled from her 161 statement (Ex.P-7) and has been declared hostile. On being confronted with her statement (Ex.P-7), she has denied giving A to A part thereof. In her cross-examination, she has denied that appellant had killed the deceased. She deposed that she did not know as to whether the appellant wanted to become Sarpanch. She has also denied that the appellant wanted to become Sarpanch and when the Villagers did not make him Sarpanch, being enraged he had killed the deceased. 13. PW4 Mahesh is brother of the deceased. He has also turned hostile. On being confronted with his statement (Ex.P-8) recorded under section 161, CrPC, he has denied A to A part thereof. In his cross-examination, he has deposed that he was sick and was at a different Village at the relevant point of time. He has further deposed that since he was sick, he does not know how his statement has been recorded by the Police. 14. PW6 Manobai is mother-in-law of the appellant. She has also turned hostile and on being confronted with her 161 statement (Ex.P-10), she has denied A to A part thereof. She has denied having entered into any compromise. He has further deposed that since he was sick, he does not know how his statement has been recorded by the Police. 14. PW6 Manobai is mother-in-law of the appellant. She has also turned hostile and on being confronted with her 161 statement (Ex.P-10), she has denied A to A part thereof. She has denied having entered into any compromise. In her cross-examination, she has deposed that on the date of incident, she and her husband Babu Aadivasi were working as labourers at Vilage Supat and gained knowledge about death only after about 10 days. 15. PW7 M.L.Sharma is the Investigating Officer. On 19.2.2005, he was posted as T.I. at P.S. Pohri. On being confronted with the contradictions in the evidence of above said hostile witnesses, he has proved the same. He has also proved the FIR (Ex.P-2), spot map (Ex.P-4), Panchayatnama Lash (Ex.P-5), post mortem requisition (Ex.P-11), Viscera of deceased (Ex.P-12). In his evidence, he has supported and corroborated the prosecution version. 16. It is well settled that the fact that a witness was declared hostile at the instance of the public prosecutor and he was allowed to cross-examine the witness, furnishes no justification for rejecting en bloc the evidence of the witness. However, the Court has to be very careful, as prima facie, a witness who makes different statements at different times, has no regard for the truth. His evidence has to be read and considered as a whole with a view to find out whether any weight should be attached to it. The Court should be slow to act on the testimony of such a witness; normally, it should look for corroboration to his testimony. (State of Rajasthan v. Bhawani and Anr., [ (2003) 7 SCC 291 ], referred to) 17. The apex Court while deciding with the issue in Radha Mohan Singh @ Lal Saheb and ors. v. State of U.P., [ (2006) 2 SCC 450 ], observed as under : ".....It is well settled that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat him as hostile and cross-examined him. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof..." 18. The evidence of such witness cannot be treated as effaced or washed off the record altogether but the same can be accepted to the extent his version is found to be dependable on a careful scrutiny thereof..." 18. In Mahesh v. State of Maharashtra [ (2008) 13 SCC 271 )], this Court considered the value of the deposition of a hostile witness and held as under : ".....If PW 1, the maker of the complaint has chosen not to corroborate his earlier statement made in the complaint and recorded during investigation, the conduct of such a witness for no plausible and tenable reasons pointed out on record, will give rise to doubt the testimony of the investigating officer who had sincerely and honestly conducted the entire investigation of the case. In these circumstances, we are of the view that PW.1 has tried to conceal the material truth from the Court with the sole purpose of shielding and protecting the appellant for reasons best known to the witness and therefore, no benefit could be given to the appellant for unfavourable conduct of this witness to the prosecution". (Emphasis supplied) 19. In Rajendra and Anr. v. State of Uttar Pradesh [ (2009) 13 SCC 480 )], the apex Court observed that merely because a witness deviates from his statement made in the FIR, his evidence cannot be held to be totally unreliable. 20. The apex Court Court reiterated a similar view in Govindappa and ors. v. State of Karnataka [(2010) 6 SCC 533)], observing that the deposition of a hostile witness can be relied upon at least upto the extent he supported the case of the prosecution. 21. In view of the above, it is evident that the evidence of a person does not become effaced from the record merely because he has turned hostile and his deposition must be examined more cautiously. 22. In the wake of eye-witnesses turning hostile, the trial Court has rightly considered circumstantial evidence available on record. It is noteworthy that all the witnesses who have turned hostile are related and interested witnesses. Complainant Kisna (PW1) is father of the appellant. Though he has turned hostile, yet in his crossexamination he has admitted entering into a compromise and also admitted the fact that appellant intended to become Sarpanch. It is noteworthy that all the witnesses who have turned hostile are related and interested witnesses. Complainant Kisna (PW1) is father of the appellant. Though he has turned hostile, yet in his crossexamination he has admitted entering into a compromise and also admitted the fact that appellant intended to become Sarpanch. Similarly, Batibai (PW2) is wife of the appellant, Baijanti PW3) is mother of the appellant, Mahesh (PW4) is brother of appellant and Manobai (PW6) is mother-in-law of the appellant. Thus, all the witnesses who have turned hostile are relatives of the appellant. 23. In the light of aforesaid facts and circumstances, the trial Court in paragraphs 16 to 32 has rightly appreciated the evidence on record and correctly held that question of entering into compromise, as admitted by complainant (PW1) in his cross-examination, would arise only when there had been any offence. In the prosecution version, it has been alleged that appellant had strangulated the deceased. The said fact is corroborated by medical evidence, inasmuch as in the post mortem report (Ex.P-13), cause of death has been found to be asphyxia due to strangulation by throttling. Thus, the manner in which death had been caused, is correctly mentioned in the FIR. In view of the above, the evidence of complainant Kishna (PW1) before the trial Court that he was sleeping in his room and after being called by appellant and his wife, came to know about death of deceased caused by some unknown person, cannot be accepted. It is also noteworthy that FIR of the incident has been lodged by Kisna (PW1), who is grandfather of the deceased and not by the appellant, who is father of the deceased despite the fact that he was very much present. The offence has been committed on 19.2.2005 at about 1 a.m. in the night and the FIR has been lodged next day at 10.30 a.m.. There is nothing on record to disbelieve the testimony of Investigating Officer M.L.Sharma (PW9) who has recorded the FIR and statements of witnesses. Thus, from the evidence on record, it is graphically clear that relatives of the appellant are trying to protect and shield him having entered into a compromise. The factum of compromise has been admitted by Kisna (PW1) in his cross-examination. Thus, from the evidence on record, it is graphically clear that relatives of the appellant are trying to protect and shield him having entered into a compromise. The factum of compromise has been admitted by Kisna (PW1) in his cross-examination. So far as mens rea is concerned, it is an admitted position that at the relevant point of time, appellant was Up Sarpanch of the Village and not Sarpanch. Thus, the prosecution version in this behalf that being enraged for not having been made Sarpanch, he committed the crime, is worthy of credence. 24. Thus, if the case is considered in the totality of the circumstances, also taking into consideration the gravity of the charges, the appellant has killed his one year old daughter. The FIR had been lodged promptly, naming the appellant as the person who committed the offence. All the eye-witnesses attributed the commission of the offence only to the appellant in their statements under section 161 CrPC It is difficult to imagine that the complainant and the eye- witnesses had all falsely named the appellant as being the person responsible for the offence at the initial stage itself. Further, the case does not fall in any of the exceptions as mentioned in section 300 IPC. Thus, we do not see any cogent reasons to interfere with the findings recorded by the trial Court. The appeal sans merit and is hereby dismissed. Impugned judgment of conviction and sentence, as passed by the trial Court is affirmed. Appellant is in jail. He shall continue to serve his remaining sentence as passed by the trial Court. A copy of judgment be also sent to the trial Court along with the record.