Madhya Pradesh High Court
Malla @ Nandkishore Ahirwar vs The State Of Madhya Pradesh on 22 March, 2018
Author: J.P.Gupta
Bench: J.P.Gupta
1
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. 486 /2008
Malla @ Nand Kishor Ahirwar
Vs.
State of Madhya Pradesh
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Shri Abhishek Tiwari, learned Amicus Curiae for the appellant.
Shri Saurabh Shrivastav, learned Deputy G.A for the
respondent/State.
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JUDGMENT
{ 22 /03/2018 } Per J.P.Gupta, J :
This appeal has been preferred assailing the judgment dated 07/11/2003 passed by the Second Additional Sessions Judge, Tikamgarh, in Sessions Trial No.320/2001 whereby the appellant has been convicted under section 302 of IPC for committing murder of Kaluta and his father Dallu and sentenced him to undergo R.I. for life imprisonment along with fine of Rs.1500/- in two counts and also punished under section 307 of IPC for committing attempt to murder of Vimla Bai (PW-1) wife of deceased Dallu, and sentenced him to R.I for 10 years with fine of Rs.1000/- with default stipulations.
2. In this case there is no dispute that deceased Kaluta was the son of deceased Dallu and Vimla Bai (PW-1) is wife of deceased Dallu and mother of deceased Kaluta and Kanhaiya Lal (PW-2) and Mulli (PW-4) resides near the place of incident and 2 the accused also had a house near the place of incident, which was used for keeping cattle and he is also near relative of the complainant party.
3. The brief facts giving rising to this appeal are that on 02/09/2001 at day time the appellant cut the tree of Guava standing in the agricultural field of deceased Dallu and on account of it, altercation were taken place between the appellant and deceased Dallu and his wife Vimla Bai (PW-1) and thereafter at night further quarrel were taken place among them and at morning near about 6 o'clock on 03/09/2001 deceased Dallu and his wife Vimla Bai (PW-1) were about to go for lodging FIR against the appellant and for this purpose they were going to take bullock cart of Kanhaiya Lal (PW-2) and at that moment the appellant came with axe and noticing the intention of the deceased asked deceased Dallu that he got his report lodge and assaulted with axe on his head and deceased Kaluta interfered to save his father then the appellant also assaulted with axe on his head , he fell down. At the same time, Vimla Bai (PW-1) also interfered, she was also assaulted by the appellant with the axe. On account of injuries caused to them, deceased Dallu and Kaluta as well as Vimla Bai (PW-1) fell down. Incident was also witnessed by Kanhaiya Lal (PW-2) and Mulli (PW-4). After the incident, the appellant/accused ran away from the spot. Eyewitnesses and other relatives shifted the injured persons to Public Health Centre, Niwari and Kaluta died in the way to the hospital and deceased Dallu was shifted to Gwalior for further treatment where after two days (ie 5/09/2001) he died on account of the injuries. FIR Ex.P-1 was lodged by Vimla Bai (PW-1) 3 at police station Niwari, District Tikamgarh where Crime No.172/2001 under sections 302, 307 of IPC was registered. Vimla Bai (PW-1) was treated and examined at Jhansi Hospital. The appellant/accused was arrested on 03/09/2001 and on his instance the weapon axe, which was used in the incident was recovered. After completion of the investigation, the charge sheet was filed before the Judicial Magistrate First Class, Niwari and case was committed to the court of Sessions Judge, Tikamgarh and was transferred to Second Additional Session Judge, Tikamgarh, who tried the case.
4. The learned Sessions Judge framed charge against the appellant under sections 302 of the IPC in two counts for committing murder of deceased Kaluta and deceased Dallu and under section 307 of the IPC for committing attempt to murder of Vimla Bai (PW-1) the wife of deceased Dallu. He abjured his guilt and claimed to be tried. His defence is that he has been falsely implicated in this case and the incident was caused by dacoits. The learned trial court after trial convicted and sentenced the appellant as mentioned earlier placing reliance on the statements of injured eye witness Vimla Bai (PW-1) and eye witnesses Kanhaiya Lal (PW-2) and Mulli (PW-4) as well as medical evidence.
5. In this appeal on behalf of the appellant, the findings of the learned trial court has been challenged on the ground that the statements of the injured and eye witnesses are full of contradictions with the medical evidence and prosecution has failed to prove the truthfulness of FIR as Vimla Bai (PW-1) has denied the fact that she lodged the FIR (Ex.P-1) and deliberately 4 delay was caused in recording the statements of eye witnesses to give suitable shape to the case. Apart from it, place of the incident is doubtful and the report of FSL has also not been produced. In absence of it, recovery of axe on the instance of the appellant is immaterial. Therefore, it can't be said that the prosecution has proved its case beyond the reasonable doubt. Thus the conviction and sentence of the appellant be set aside and he be acquitted.
6. Learned Deputy G.A has supported the findings of the learned trial court and opposed the aforesaid contentions of the learned counsel for the appellant stating that the findings of the learned trial court are based on statements of injured eye witness as well as independent eye witness, their testimony can't be discarded merely on the basis of some infirmities or irregularities in investigation. During the cross-examination of Investigation officer, Shailendra Singh (PW-7) no explanation has been sought about the delay caused in recording of the statement of prosecution witnesses. Hence no interference is required in the findings of the trial court and prayed for rejection of this appeal.
7. Having considered the contention of learned counsel for the parties and on perusal of the record, in this case it is not controversial that the death of Kaluta on 03/09/2001 and the death of Dallu on 05/09/2001 were taken place on account of injuries caused to them in the incident. At the same time, Vimla Bai (PW-1) also sustained injuries and these facts have been proved by evidence of Dr. B.B Khare (PW-5) and Dr. J.N Soni (PW-9).
58. Dr. B.B. Khare (PW-5) has stated that on 03/09/2001 at 9.30 AM in Community Health Centre, Niwari he conducted autopsy on the person of deceased Kaluta and prepared postmortem report Ex.P-8 and found following injuries on the body of deceased :-
(i) Incised wound, 4.5"X 1" X 2.5" over left Pareto-occipital area antero posterior in direction maximum depth seen over posterior part of injury Brain matter running out from wound blood clots are seen over injury site. On section injury cutting whole of skull bone and also damaging brain marks of bleeding present. Brain injury is caused by sharp cutting hard object. Injury is sufficient to cause death of person ;
He opined the mode of death is coma, which is resulted from injury to skull and brain tissue and caused within 3-6 hours before examination.
He further stated that on the same day at 7.55 AM he also examined injured Dallu and prepared report Ex.P-6 founding following injuries on his person:-
(i) Incised wound, 12 cm X 4 cm X 4 cm over neck on right side caused by sharp cutting object;
(ii) Incised wound 8 cmX 2 cmX 2 cm over right parieto temporal region transverselly placed skull bone totally cut, caused by sharp cutting object;
He opined that both injuries were dangerous to life and patient is in a state of shock referred the case to Medical College Jhansi.
He further stated that on the same day at 8.05 AM he also examined injured Vimla Bai (PW-1) and prepared report Ex.P- 7 and found following injuries on her person:-
(i) Incised wound 6 cm X 2 cmX 2 cm over left side of neck caused by sharp cutting object;
(ii) Incised wound 2 cm X 1 cmX whole depth over left pinna of ear.6
Pinna divided in two pieces caused by sharp cutting object;
(iii) Incised wound 5 cm X 2 cm X bone deep over left parieto temporal region oblique direction caused by sharp cutting object.
He opined that injuries appears to be dangerous to life and caused within 2-3 hours of examination.
9. Dr. J.N Soni (PW-9) has stated that on 05/09/2001 at GR Medical College Gwalior, he conducted autopsy on the body of deceased Dallu and prepared post mortem report Ex.P-22 and found following injuries on the person of the deceased:-
(i) Surgically stitched wound present from 1 cm anterior and 3 cm below right upper part of right ear having 10 stitches and 11 cm long, margins sharply cut;
(ii) Surgically stitched wound present on right side of neck with drain tube posteriorly having 9 stitches, 8 cm long, on opening margins sharply cut flapping on lower brain for 2.5 cm small blood vessels also showing cut effect, muscles deep. It is 4 cm right to midline ;
He stated that the aforesaid injuries were caused by sharp cutting object and the death was caused due to shock and hemorrhage as a result of the head injury within 6 to 24 hours before examination and the nature of death was homicidal and the injuries were sufficient to cause death in the ordinary course of nature.
10. The aforesaid medical evidence has remained unimpeachable during the cross examination and establish the fact that the nature of the death of deceased Kaluta and Dallu was homicidal and Vimla Bai (PW-1) also received injuries on her head caused by sharp object which was dangerous to life.
11. Now the crucial question is that whether the prosecution has established beyond the reasonable doubt that the appellant caused aforesaid injuries to deceased Kaluta and 7 Dallu and Vimla Bai (PW-1) with the intention to cause their death or assaulted with the intention to cause such injuries which were sufficient to cause death in ordinary course of nature. In this regard Vimla Bai (PW-1) has categorically stated that one day before the incident altercation and quarrel were taken place with the appellant on account of cutting tree of Guava standing in their agricultural field and in the early morning they were about to go to lodge an FIR against the appellant by the bullock cart of Kanhiya Lal (PW-2). At that moment, the appellant came with the axe and assaulted his husband Dallu on his head and when his son Kaluta tried to save his father, the appellant also assaulted on his head. She also rushed to save them, then the appellant also assaulted her on his head with the axe and she fell down and became unconscious. In the incident his son and husband died.
12. Kanhaiya Lal (PW-2) and Mulli (PW-4) fully corroborated testimony of injured eye witness Vimla Bai (PW-1). There is nothing in their evidence to discard their testimony or to suspect about false implication of the appellant. So far contradictions with the medical evidence are concerned, there are no such contradictions. Vimla Bai (PW-1) has categorically stated in her cross-examination that the appellant/accused assaulted his husband Dallu and caused the injuries on his head, neck and shoulder and so far as the injuries caused to Kaluta are concerned, the place of injury made it clear that both injuries may be caused by one assault of the weapon axe. Kanhaiya Lal (PW-2) and Mulli (PW-4) have also stated that the appellant dealt with more than one blow on deceased Dallu. All witnesses have 8 categorically stated that the incident was taken place near about the house of Kanhaiya Lal (PW-2) where the deceased and injured were reached to take the bullock cart of Kanhaiya Lal (PW-2) and Investigation Officer, Shailendra Singh (PW-7) has stated that after getting information of the incident, he reached on the spot at 9.15 AM and found blood stains on the aforesaid spot.
13. It is correct that Vimla Bai (PW-1) has stated that she can't say that she had lodged the FIR or not as she was in unconscious condition. The other prosecution witness Ganesh Prasad Ahirwar (PW-3) who is real brother of deceased Dallu has stated that when he got information about the incident, he reached to the police station and found his brother Dallu and nephew Kaluta in injured condition lying on the tractor and report was already lodged by Vimla Bai (PW-1). In cross- examination he has stated that at that time Vimla Bai was weeping. Investigation Officer, Shailendra Singh (PW-7) has also stated that Vimla Bai lodged the FIR (Ex.P-1), which was recorded by him. In such circumstances, it can't be said that FIR (Ex.P-1) is not proved or it is fictitious.
14. Having gone through the record, it is found that statement of Kanhaiyal Lal (PW-2) has been recorded by Investigation Officer, Shailendra Singh (PW-2) on the same day and the statement of Mulli (PW-4) was recorded on 10/02/2001. In other words, after 7 days, but no reason has been asked to Investigation Officer, Shailendra Singh (PW-7) about this delay. In such circumstances, on the ground of delay the testimony of witness can't be challenged. There is nothing in his statement or 9 otherwise on record to suggest that he may implicate the appellant falsely. In such circumstances, the statement of Mulli (PW-4) who is independent eye witness is fully reliable.
15. So far as recovery of the weapon axe on the instance of the appellant is concerned, in absence of the report of FSL about the presence of blood on the weapon, the fact of recovery of the weapon has no significance and can't be considered as an incriminating material against the appellant. But on the aforesaid infirmity the evidence of injured eye witness and other eye witnesses can't be discarded.
16. In view of the aforesaid discussion, we are of the considered opinion that the prosecution has succeeded to prove it's case beyond the reasonable doubt that the appellant caused the injuries to Kaluta and Dallu which led to their death and also caused grievous injury with sharp weapon on the head of Vimla Bai (PW-1).
17. Now the next question is that what offence was committed by the appellant. As per the opinion of medical expert Dr. B.B Khare (PW-5) and Dr. J.N Soni (PW-9), the injuries sustained to Kaluta and Dallu were sufficient to cause their death in ordinary course of the nature. The appellant used sharp cutting weapon axe and assaulted on head and neck, which are vital parts of the body, hence it is established that he assaulted intentionally to cause such injuries, which were sufficient to cause death in ordinary course of the nature. Hence his conviction for commission of offence under section 302 of IPC in two counts is not interfereable.
1018. Appellant also assaulted Vimla Bai (PW-1) intentionally and caused injury on her head with sharp cutting object and injury was dangerous to life. Therefore, the nature of the injury was grievous. The circumstance of the incident also shows that when she interfered in the incident, the appellant assaulted her. In such circumstances, it can't be said that the assault was made with a view to cause death of her. Hence, the appellant should have been convicted for commission of offence under section 326 of IPC instead of section 307 of IPC.
19. In view of the discussion, the appellant's conviction and sentence for commission of murder of Kaluta and Dallu under section 302 of IPC in two counts are affirmed. For causing injury to Vimla Bai (PW-1), the appellant's conviction and sentence under section 307 of IPC is set aside and he is convicted under section 326 of IPC and sentenced to undergo R.I for 5 years with fine of Rs.1000/- with the direction that all sentences will run concurrently.
20. Accordingly this appeal is partly allowed. The appellant is in jail, hence a copy of this judgment be sent to the concerned trial court and jail authority for information and necessary action.
21. We also express our words of gratitude for the assistance rendered by Amicus Curiae.
Certified copy as per rules.
(J.K.MAHESHWARI) (J.P.GUPTA)
JUDGE JUDGE
tarun
Digitally signed by
TARUN KUMAR SALUNKE
Date: 2018.03.20
03:59:29 -07'00'
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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. 486 /2008 Malla @ Nand Kishor Ahirwar Vs. State of Madhya Pradesh JUDGMENT FOR CONSIDERATION (J.P.Gupta) Judge __/03/2018 HON'BLE SHRI JUSTICE SHRI J.K MAHESHWARI (Judge) __/03/2018 JUDGMENT Post for : __/03/2018 Judge __/03/2018