Ballu @ Balram vs State Of M.P. on 23 May, 2018

[Cites 5, Cited by 6]

Madhya Pradesh High Court

Ballu @ Balram vs State Of M.P. on 23 May, 2018

This Criminal Appeal has been filed by the appellant Ballu @ Balram S/o Kalyan Lodhi R/o Village Dhuravli, Thana Kurwai, District Vidisha under the provisions of Section 374 of Cr.P.C. being aggrieved by the judgment and sentence dt.30.11.2007 passed by the Court of Special Judge, Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 in Special Case No.29/2007.

2. The appellant was charged under the provisions of Section 302 of IPC and Section 3(2)(5) of Atrocities Act. During trial, the appellant was acquitted from the offence under the provisions of Atrocities Act, however, he has been convicted under Section 302 with life imprisonment and fine of Rs.1,000/- and in default of payment of fine, the appellant is required to undergo one month's additional R.I.

3. As per the prosecution story, deceased Kallu @ Gyarsa was a person belonging to SC category and was resident of village Dhuravli. On 19.12.2006, at about 11.00 a.m. when the deceased was at his home alongwith his daughter Ku.Vineeta 2 (P.W.1) and her younger brother Arjun and his wife had gone to Indore and his elder son Karan Singh (P.W.5) had gone to play out, accused Ballu @ Balram had visited house of the deceased and asked him to accompany him to his house for a puff of Bidi. When deceased had not returned for some time, then Ku.Vineeta (P.W.1) alongwith her young brother Arjun (P.W.6) had visited house of the appellant, which is at a distance of 2-3 houses from the houses of the deceased and found that house of the appellant was locked from inside and cries of their father to save him from attack of the appellant were heard. They returned back home and in the meanwhile, the elder son of the deceased Karan Singh (Ex.P/5) had returned back after his play and when they reached the house of the appellant, Karan Singh opened sankal (chain) from the cracks of the door and found their father to be lying dead in the blood pool.

4. Karan Singh (P.W.5) thereafter travelled to Kurwai and had informed the police through phone when police had arrived at the scene of crime. Thereafter, as per the description furnished by Karan Singh (P.W.5), Dehati Nalishi (Ex.P/1) was recorded on the spot and thereafter on preparation of Lash Panchnama dead body was sent for post mortem. Witnesses were summoned vide Ex.P/5 and thereafter lash panchnama (Ex.P/7) was prepared. Blue coloured box of Pan Parag, plain and blood stained soil were seized and Japti Panchnama (Ex.P/6) was prepared. Spot Map (Ex.P/8) was also prepared and vide Ex.P/8 dead body was sent for post mortem. In the hospital at Kurwai, dead body was subjected to post mortem by Dr.A.K.Shrivastava (P.W.10). Dr. Shrivastava in his post mortem (Ex.P/12) opined that the deceased Kallu died because of homicidal injury on his head resulting in fracture.

5. On 30.6.2006, appellant was arrested vide arrest memo (Ex.P/11) and his statement under Section 27 of Evidence Act was recorded on the basis of which one wooden log was recovered vide ExP/2. Certificate (P.W.3) was obtained from the Gram Panchayat Ishakhedi to the effect that the deceased 3 was a member of Scheduled Caste Community. Rod of wood recovered vide Ex.P/2 was sent to the Regional Forensic Science Laboratory, Bhopal and as per the memorandum received from such RFSL Bhopal vide Ex.P/15, human blood was found over such wooden log.

6. It is the contention of the appellant that he is innocent and he has been falsely implicated. He abjured his guilt and submitted that in fact the place of incidence is not his house and one Jagdish Lodhi was living in such house and in support of such contention Laxman Singh S/o Parmanand (D.W.1) was examined. Laxman Singh (D.W.1) gave a statement that in his neighbourhood at village Dhuravli there is house of Jagdish and accused Balram is not staying in that house. He stays at Nai Basti alongwith his parents and other family members. It is submitted that in fact the place of incident is house of Jagdish and not of the appellant, therefore he should not have been convicted.

7. Learned counsel for the appellant submits that since there is no eye witness and the case has been constructed on the evidence of minor children, it was not a good case for prosecution to secure conviction of the appellant. It is submitted that Ku. Vineeta (P.W.1) has admitted that there is no enmity between the deceased and the appellant and there are certain omissions in the statement given under Section 161 and the court statement but such omissions have not been appreciated. It is also submitted that there was no mens rea to kill the deceased and therefore the conclusion which has been drawn by the learned Special Judge needs to be quashed. Appellant's counsel also submits that it is possible that the deceased might have visited the place of incident and might have fallen from the stairs as there were sharp stones lying on the floor and might have sustained such fatal injuries because of such falling.

8. Learned Public Prosecutor for the respondent/State on the other hand submits that there is evidence of last scene. There is admission on the part of Laxman Singh (D.W.1) that the appellant Balram was also having a house in the Old Basti 4 and another house at New Basti. He further mentioned in his cross- examination that about 15 years back Jagdish used to stay in the house of appellant's father but now Jagdish is living at New Basti. Thus, it is apparent that appellant has two houses; one at Purani Basti and another at New Basti.

9. It is submitted that as far as mens area is concerned, it is to be examined from the facts and circumstances of the case. Deceased was a member of Scheduled Caste Community. There is rivalry between the members of the forward caste and scheduled caste and it is possible that appellant was not liking presence of the deceased being a member of Scheduled Caste Community in his neighbourhood and decided to eliminate him. It is also submitted that in fact statement of Laxman Singh (D.W.1) clearly revealed that appellant's plea of not residing in the Old Basiti and not owning any such property has not been proved.

10. It is submitted that no documentary or other evidence was produced to show that the appellant had sold his house of the Old Basti or to show his absence from the scene of crime on the fateful day at about 11.00 a.m. It is also not a case of false implication and therefore it is a fit case to maintain conviction.

11. Learned sessions judge has framed three issues, namely; (i) Whether death of Kallu was homicidal in nature ?

(ii) Whether accused caused life threatening injuries to the deceased Kallu with an intention to cause death ? and

(iii) Whether the appellant had killed the deceasaed only on the basis of the deceased being a member of SC community.

12. In this regard, learned Sessions Judge has taken into consideration the evidence of Ku. Vineeta (P.W.1), Karan Singh (P.W.5), Arjun (P.W.6), Police Inspector Mahendra Singh (P.W.7).

13. Mahendra Singh (P.W.7) deposed that when he had seen the dead body, lot of blood had accumulated around the face. There was a deep injury on the left eyebrow of the deceased from which he was bleeding. This statement has been corroborated by the statement of Ku.Vineeta (P.W.1) and 5 Karan Singh (P.W.5). In cross examination, no material contradiction has come on record. Dr. A.P.Shrivastava (P.W.10) in his court statement deposed that on 19.12.2006, he was posted as Medical Officer at Community Health Centre, near Kurwai and he had received the body and after it being identified by Karan Singh (P.W.5), post mortem was conducted on 20.12.2006 and during post mortem, it was found that there was an injury on left frontal bone exposing the bones measuring 6 x 3 cm. Similarly, there was a fracture on the left frontal bone.

14. On the basis of the nature of injuries, Dr.A.P.Shrivastava (P.W.10) opined that such injury was homicidal in nature. In this regard plea of the appellant was that such injury could have been caused if deceased would have fallen from the stairs on the stones but he could not bring any material contradiction on record. Karan Singh (P.W.5) has also deposed that dead body was found 15-20 hands away from the stairs. Therefore, the learned Sessions Judge has rejected the theory of fall from the stairs and has held the death of the deceased tobe a homicidal death.

15. As far as issue No.2 is concerned, blood stains have been found on the wooden log recovered vide Ex.P/2 examined by FRSL vide report (Ex.P/15) used to crush the head of the deceased. This document has not been controverted. It has come on the record that Ex.P/8 wooden log recovered from the appellant Ballu @ Balram contain human blood. In view of such facts, it is submitted that in fact it was the appellant, who had used such wooden log to kill the deceased Kallu.

16. There were no material omissions or contradictions in the statement of the witnesses and there is almost complete harmony in the statements of Meharban (P.W.2), Karan Singh (P.W.5) and Mahendra Singh (P.W.7).

17. It has also come on record that after admission of the defence witness that the scene of crime is a house belonging to the present appellant, the onus shifted on the present appellant to point out as to how deceased reached to his 6 premises but such burden has not been discharged by the prosecution. In fact, there is no suggestion by the defence to the prosecution witnesses that the house of the appellant was empty and locked and the deceased had tried to sneak into the house for any ulterior motive including encroachment or burglary.

18. As far as the appellant is concerned, Laxman Singh (D.W.1) defence witness, had admitted that the house in question is that of the appellant. It was incumbent upon the appellant to have shown beyond reasonable doubt that he was not present at the scene of the crime. Therefore, mens rea in its widest context can be gathered from the fact that intention is a subjective element which is not ex facie present in any conduct in all cases, circumstances surrounding the culpable homicide may lead to the inference that accused intended to cause death. Hon'ble Supreme Court in the case of Om Prakash @ Raja Vs. State of Uttaranchal as reported in (2003) SCC 648 has dealt with the aspect of motive and has held that if evidence establishes beyond reasonable doubt commission of the offence by the accused alone, lack of sufficiency of motive would not be of much relevance. Every person must be presumed to intend the result that his action normally produces and if a person hits another on a vulnerable part of the body and death occurs as a result of the blow or blows inflicted by him, the intention of the accused was no other than to take the life of his victim and offence committed by him amounted to murder.

19. The argument put forth by the appellant that the scene of crime was not his house has been belied both by Laxman Singh (D.W.1) and Dhannalal (P.W.3). Dhannalal (P.W.3), Sarpanch of the village Ishakhedi in para 4 of the cross- examination has deposed that he had not seen the appellant living in the house of Jagdish Lodhi situated at Purani Basti. In fact, wooden log was recovered in presence of Meharban (P.W.2) and he has not waivered from his statement, however, Ku.Vineeta (P.W.1) has admitted the house where the murder had taken place to be that of the appellant and this has been 7 sought to be belied by the appellant is sufficient circumstance to gather mens rea.

20. If the deceased would have fallen from the stairs, then the appellant would have called for the help and would have tried to give him some possible treatment or first aid, but in the absence of such evidence on record, it is apparent that the appellant after settling the scores got himself removed from the scene of crime. In fact, the statement of Meharban (P.W.2) and Arjun (P.W.6) that their father was taken by the appellant forcefully was the first requirement of establishing the chain i.e. last seen. Thereafter Meharban (P.W.2) and Arjun (P.W.6) had visited the house of the appellant where they heard the cries of their father shouting for help and also shouting that he is being hit by Balu makes the second stage of chain. Recovery of dead body from the house of the appellant and thereafter recovery of wooden log with human blood stains bring us to the third stage of chain and absence of any cogent explanation to explain as to how deceased had reached to the house of the appellant where his dead body was found completes the chain and therefore there are no grounds to find fault or loopholes in the judgment of conviction and sentence handed over by the learned Special Judge, Atrocities. Thus, the appeal fails and is dismissed.

Let a copy of this judgment be communicated to the appellant, who is in jail. Records be sent back.

           (Vivek Agarwal)                          (G.S.Ahluwalia)
                Judge                                    Judge
SP

      Digitally signed by SANJEEV
      KUMAR PHANSE
      Date: 2018.05.24 15:02:11
      +05'30'

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