Madhya Pradesh High Court
Krishnachand vs The State Of Madhya Pradesh on 21 September, 2017
Author: J.P. Gupta
Bench: J.P.Gupta
1
Cri.A.No.1087/06
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR
(DIVISION BENCH : HON'BLE SHRI JUSTICE J.K.MAHESHWARI &
HON'BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No. 1087 / 2006
Krishnachand S/o. Ramprasad
Vs.
State of Madhya Pradesh
Ms. Pallawi Khare, Advocate has been appointed as Amicus curiae
for the appellant-accused.
Ms. Manjit Chakal, PL for the respondent-State.
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Whether approved for reporting : (Yes / No).
JUDGMENT
(Delivered on 21st day of September, 2017) Per J.P. Gupta, J :
The appellant has preferred the present appeal being ag- grieved by the impugned judgment dated 20.12.2005 passed by the First Additional Sessions Judge, Chhindwara in S.T. No.101/04 whereby the ap- pellant / accused has been convicted under Section 302 of IPC and sen- tenced to undergo life imprisonment and fine of Rs.100/-; in default of pay- ment of fine, further 15 days simple imprisonment.
2. In brief, the relevant facts of the case are that on 13.3.2004 at about 11 O'clock at village Gwarimal, P.S. Bichhua, District Chindwara, ap- pellant/accused demanded money from his father Ramprasad (deceased). Ramprasad refused to give money to the appellant / accused and told that without his permission, he (the appellant / accused) had sold Soya-been, therefore, he would not give money to him, upon which, the appellant / ac- cused came to Ramprasad armed with lathi and abused and told that he would not escape him and beaten Ramprasad with lathi and caused in- juries on wrists of both hands and testicle. Blood oozed out from the in-
2 Cri.A.No.1087/06juries received on hands of Ramprasad. On making hue and cry by Ramprasad, people residing in the vicinity viz Meghraj, Bhojram and Bhaiyalal came over there and intervened between them and also in- formed Ramprasad's elder son Poonaram who was residing in Chhind- wara. Thereafter, Poonaram came in village Gwarimal and took Ramprasad and other persons to the police station Bichhua, District Chhindwara, where Ramprasad lodged FIR which was registered at crime no. 33/04 for the offence under Sections 324, 294 and 506 of the IPC. Thereafter, Ram- prasad was sent for treatment to Community Health Centre, Bichhua, from where, looking to the injuries received by Ramprasad, he was referred to District Hospital, Chhindwara. During treatment, on 14.3.2004 at about 7:30 PM Ramprasad breathed his last and the information in this regard was given by the ward boy to the Police station Kotwali, upon which, merg intimation was registered on Zero and for proper registration, the same was sent to the police station Bichhua. Thereafter, the police summoned the witnesses and prepared Panchnama of the dead body of the deceased and the same was sent for postmortem examination and as per the post- mortem report Ex.P/14, the death was caused on account of the injuries sustained by the deceased and excessive bleeding. During investigation, statements of the witnesses were recorded. Spot map was prepared. On the basis of memorandum of the appellant / accused, lathi used in commis- sion of the offence was seized as per seizure memo Ex.P/10. After complet- ing all due formalities, the police filed a charge sheet of the aforesaid of- fence adding Section 302 of the IPC against the appellant / accused before the Court of JMFC, Sausar, who on its turn, committed the case to the court of Sessions for trial.
3. The learned trial Court framed charges for the offence under Sections 506-B and 302 of the IPC against the appellant. The appellants / accused abjured his guilt and stated that he is innocent and pleaded for tri- al.
3 Cri.A.No.1087/064. Learned trial Court after trial of the case and on the basis of the evidence and material came on record found the appellant / accused guilty of the offence under Section 302 of IPC and sentenced him as per the impugned judgment and acquitted of the offence under Section 506- Part-2 of the IPC.
5. Being aggrieved by the aforesaid impugned judgment of conviction and order of sentence, the appellant has preferred this appeal from jail. However, Ms. Pallawi Khare, learned counsel has been appointed as Amicus Curiae to assist the Court on behalf of the appellant and she has submitted that the finding of the learned trial court is contrary to law. The testimony of eye witness Meghraj (PW-3) and the statement of Sub Inspector Javed Khan (PW-13) with regard to recording of FIR Ex.P/13 by the deceased Ramprasad and statement of Head Constable Munavvar Khan (PW-11) with regard to taking statements of deceased Ramprasad under Section 161 of Cr.P.C. and Poonaram (PWE-9) elder son of the deceased Ramprasad with regard to giving information about the assault made on the deceased by the appellant himself, are not reliable and the conviction of the appellant is based merely on the statements of the aforesaid witnesses. It is further submitted that in this case motive of the incident has not been proved and it is a case of sudden provocation without taking undue advantage or any cruel manner. Hence, the appellant cannot be convicted under Section 302 of the IPC. It is a fit case to acquit the appellant of the charge leveled against him.
6. Learned PL appearing for the respondent / State has argued in support of the impugned judgment and stated that the finding of convic- tion and sentence of the learned trial court is in accordance with law. Hence, the appeal be dismissed.
7. Having considered the rival contentions of both the parties and on perusal of the record, it is found that in this case there is no contro- versy about the nature of the death of the deceased. Medical expert Dr. Santosh Nema (PW-12) proving medical report Ex.P/14 has categorically 4 Cri.A.No.1087/06 stated that two lacerated wounds were found on each arm of the de- ceased and one contusion was present on the lower side of the stomach. There were marks of the injury on spleen and liver and 5 th, 6th and 7th ribs of left side and 4th rib of right side were found to be broken. On account of excessive bleeding and shock, the deceased died. Similarly, Dr. Verandra Gond (PW-5) who initially examined the deceased in the injured condition on 13.3.2004, has also stated that two lacerated wounds were found on each arm of the deceased and there was swelling on urinary bladder and all the injuries were caused by hard and blunt object and medical report Ex.P/12 was prepared by him. It is also stated that age of the deceased was near about 85 years. The aforesaid evidence is unchallenged and on the basis of the evidence it is held that the death of the deceased had taken place on the account of the aforesaid injuries and nature of the death was homicidal.
8. Now the question is that whether the appellant had caused the aforesaid injuries to the deceased?. In this regard, during investigation, three nephews of the deceased namely Meghraj (PW-3); Bhaiyalal (PW-7) and Bhojraj (PW-10) claimed to be eye witnesses of the incident. But, dur- ing trial, Bhaiyalal (PW-7) disclosed that when he reached on the spot, the deceased was lying in injured condition and at that time, Ashok and Gud- dan Sahu (who have not been examined) were present there and they told that the appellant / accused assaulted his father Ramprasad. He has also stated that he reached the place after 15 minutes of the incident. There- fore, the learned trial court has discarded his statement. Similarly, Bhojraj (PW-10) stated that he saw Ramprasad in injured condition and Ramprasad told him that the appellant assaulted him and this statement is also against the police statement Ex.D/4. Therefore, the trial court has also dis- carded the statement of this witness. But, learned trial court has placed re- liance on the statement of Meghraj (PW-3) who stated that on hearing hue and cry, he reached to the spot and saw that the appellant was beating his father Ramprasdad with lathi and on asking the appellant said that he 5 Cri.A.No.1087/06 wanted his share in the property. This witness has also stated that in the incident, the deceased Ramprasad sustained injuries on head, left leg, back and on both hands and abrasions on the body. Thereafter, other peo- ple had also gathered on the spot and the deceased's elder son Poonaram was informed about the incident who was residing in Chhindwara. After coming of Poonaram, the police came on the spot and took Ramprasad, who was unconscious, to police station Bichhua and thereafter, got admit- ted in District Hospital, Chhindwara where he died.
9. But, in view of this court the statement of Meghraj (PW-3) is also not reliable as in the cross examination, he has stated that he and his brothers Bhaiyalal and Bhojraj reached on the spot together where the appellant was not there. Bhojraj and Bhaiyalal have categorically stated that they reached after the incident. Therefore, it is also doubtful that this witness saw the incident. Apart from it, the statement of this witness is contrary to the statement of the Medical expert. No injuries were found on the head and back and abrasion on the body of the deceased as stated by Dr. Virendra Gond (PW-5). Similarly, there is no averment in the police statement Ex.D/1 that the appellant said that he wanted his share in the property. According to Ex.D/1, the quarrel took place as the deceased re- fused to give money as demanded by the appellant. Further, Meghraj (PW-
3) has also stated that the police came on the spot and took the deceased Ramprasad to the police station in unconscious condition; while Poonaram (PW-9) has stated in his statement that his father Ramprasad was taken to police station after coming him on the spot. He has not stated that the po- lice came there and thereafter, the police took his father to police station. In the aforesaid circumstances, statement of Bhaiyalal (PW-7) cannot be relied without any independent and reliable corroboratory evidence.
10. Poonaram (PW-9) is not an eye witness of the incident. He reached on the spot after 5-6 hours of the alleged incident and stated that he found his father in injured condition and when he asked his father about the incident, his father had not told who caused injury to him. Later-
6 Cri.A.No.1087/06on, he has stated that he took his father to the police station Bichhua where the police asked him and his father Ramprasad about the incident where Ramprasad told the police that the appellant had beaten him with lathi and his father lodged FIR and also gave statement to the police. But, in the police statement Ex. D/3 it is not mentioned that before Poonaram (PW-9) in the police station, his father / deceased Ramprasad told him that he was beaten by the appellant with lathi. In the police statement Ex.D/3 it was stated by Poonaram (PW-9) that on the spot his father told him that he was beaten by the appellant. In the aforesaid circumstances, statement of Poonaram is also not reliable as it is contradictory with the previous statement given to the police.
11. Sub Inspector Javed Khan (PW-13) has stated that on 13.3.2004 he was In-charge, of Police Station Bichhua. He recorded an FIR at Crime No.33/04 against the appellant which is Ex.P/16 and he denied the suggestion that Ramprasad was unconscious at that time. Head Constable Munavvar Khan (PW-11) has also stated that on 13.3.2004 he recorded statement of the deceased Ramprasad but he has not stated as to which statement was given by the deceased Ramprasad. Neither the document has been exhibited nor have the contents of the document been averted before the Court.
12. Learned trial court has placed reliance on FIR Ex.P/16 and the so called statement of the deceased Ramprasad recorded under section 161 of the Cr.P.C. but both have not been proved by the prosecution in ac- cordance with law. There is no evidence with regard to signature of the deceased Ramprasad on the FIR Ex.P/16. Neither Poonaram (PW-9) elder son of the deceased Ramprasad nor S.I. Javed Khan (PW-13) have identi- fied the signature of the deceased Ramprasad on the FIR Ex.P/16. Similarly, police statement under Section 161 of Cr.P.C. allegedly taken by Head Con- stable Munavvar Khan (PW-11) has not been tendered in the evidence as it is not exhibited nor proved and no contents of the statement have been narrated by the Head Constable Munavvar Khan (PW-11).
7 Cri.A.No.1087/0613. Apart from it, the fact that injured Ramprasad was conscious and was fit to give statement at the police station is also doubtful as eye witness Meghraj (PW-3) has stated that Ramprasad was unconscious while he was taking to police station. Poonaram (PW-9) has also stated that con- dition of his father was not well and he was not able to speak. He has also stated that in the police station, the deceased had only told that the appel- lant had beaten him with lathi. Apart from it, he did not say anything. While FIR Ex.P/16 is written in full one page. He has also stated that in the police station his father was also remained in the jeep and Police Station In-charge himself came to Jeep and took statement of his father while Sub Inspector Javed Khan (PW-13) denied the fact that Ramprasad was serious and was not in a position to enter in the office of Police Station and in the police station the deceased was remained in the jeep. In view of the afore- said contradictory statements of the witnesses it cannot deemed that the prosecution has proved the fact that the deceased was conscious and fit to give statement to the police and the police recorded his statement as FIR and statement under section 161 of Cr.P.C. Further, if the deceased was fit to give statement then why no requisition was made to get his state- ment recorded by the Executive Magistrate in the hospital and it has not been explained. This circumstance creates doubts on the credibility of the aforesaid statements.
14. In view of the aforesaid discussion, no reliance can be placed on the aforesaid so called dying declarations of the deceased Ramprasad.
15. So far as other evidence is concerned, one lathi has been re- covered on the instance of the appellant as stated by S.I. Javed Khan (PW-
13) who has proved memorandum Ex.P/8 and seizure memo Ex.P/10. How- ever, learned trial court has not relied on his statement in view of the statement of Bhaiyalal (PW-7) as he has denied the facts mentioned in Ex.P/8 and Ex.P/10 considering that if the proceedings of Ex.P/8 and Ex.P/10 had been taken place before him then he would not have denied the fact as he is near relative of the deceased. But deeming the fact to be 8 Cri.A.No.1087/06 true the same is immaterial as there is no evidence to connect the seized lathi with the injury caused to the deceased.
16. In view of the aforesaid discussion, this court has no hesita- tion to hold that the prosecution has failed to prove its case beyond rea- sonable doubt that the appellant caused fatal injury to the deceased. Hence, this appeal is allowed and the impugned judgment of conviction and order of sentence awarded by the trial court against the appellant for the offence under Section 302 of the IPC is hereby set-aside. He is acquit- ted of the aforesaid offence. He is in jail. He is directed to be released forth with, if not required to be detained in any other case.
17. We also express our words of gratitude for the assistance ren- dered by Amicus Curiae.
18. A copy of this order be sent immediately to the trial court and the jail authorities concerned for information and its compliance.
(J.K.MAHESHWARI) (J.P.GUPTA) JUDGE JUDGE JP/- Digitally signed by JITENDRA KUMAR PAROUHA DN: c=IN, o=High Court of Madhya Pradesh, ou=Administration, postalCode=482004, st=Madhya Pradesh, 2.5.4.20=a650f9cd964b96221568096ac01ab1bf019e 0b76f6fc652f893c6324a2f64a5a, cn=JITENDRA KUMAR PAROUHA Date: 2017.09.22 11:18:13 +05'30'