Madhya Pradesh High Court
Gulbsingh vs The State Of Madhya Pradesh on 12 June, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 14th OF JUNE, 2023
CRIMINAL APPEAL No. 692 of 2010
BETWEEN:-
GULABSINGH S/O APSINGH BHILALA, AGED
ABOUT 35 YEARS, OCCUPATION:
AGRICULTURE, R/O: RAJAWAT, P.S.
NANPUR, TEH & DIST. ALIRAJPUR
(MADHYA PRADESH)
.....APPELLANT
(BY MS. SHARMILA SHARMA - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT.
THROUGH POLICE STATION NANPUR, DIST.
ALIRAJPUR (MADHYA PRADESH)
.....RESPONDENT
(BY MR. H.S. RATHORE - GOVERNMENT ADVOCATE)
This appeal coming on for hearing this day, the JUSTICE ANIL
VERMA passed the following:
JUDGMENT
The appellant has preferred present criminal appeal under Section 374 of Code of Criminal Procedure, 1973 (in short 'Cr.P.C.') against the impugned judgment of conviction and order of sentence dated 09/06/2010 passed by II Additional Sessions Judge, Jobat, District Alirajpur (M.P.) in S.T.No. 304/2009, whereby the appellant has been convicted for the offence under Section 302 of Indian Penal Code, 1860 (in short 'IPC') and Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 2 sentenced to undergo Life Imprisonment with fine of Rs.500/- with usual default stipulation.
2. The prosecution story in brief is that on 24.09.2009, at around 8-9 PM, deceased Idla were sleeping alongwith his son Ikram and his daughter Rinu inside his house. At that time appellant/accused Gulabsingh came there armed with Faliya and started abusing him by saying that he had not given him wine while deceased drank it. Idla rushed towards a river. Ikram and Rinu also ran after them. Appellant assaulted Idla by means of Faliya. Idla was fallen down on the ground and despite of it, he tried to stand, accused again inflicted a blow of Faliya, as a result of these injuries deceased instantaneously died on the spot. Ikram and Rinu due to fear were hidden in their house. On the next day, in the morning Ikram and Rinu went to village Sarpanch Desla and narrated the whole incident to him. Desla alongwith other persons reached to the scene of occurrence and saw the dead body of Idla. Desla lodged an FIR at P.S. Nanpur. Accordingly, Crime No.121/2009 has been registered against the present appellant. Dead body of deceased sent to the hospital. Dr. Sachin Patidar (PW-5) conducted the postmortem of the deceased and as per his report cause of death of deceased was due to shock, syncope and excessive hemorrhage as a result of injuries to both side of carotid vessels and death of deceased was homicidal in nature.
3. Prosecution case in further is that S.H.O. R.P.S. Rathore (PW-11) prepared the spot map and one Faliya and blood stained shirt of the appellant was recovered from his possession vide seizure memo (Ex.P-9 and P-10). He also arrested the accused by arrest memo (Ex.P-6) and recorded the memorandum statement (Ex.P-8). Blood stained cloth of the deceased alongwith other seized articles have been sent to the chemical Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 3 examination to the Forensic Science Laboratory.
4. After completion of investigation, charge-sheet has been filed before the JMFC, Alirajpur, who has committed the case to the Court of Sessions, which was later on transferred to the II ASJ, Jobat, Alirajpur. Thereafter, trial Court on the basis of allegation made in the charge-sheet framed charges under Section 302 of IPC against the appellant. The appellant abjured his guilt and pleaded complete innocence.
5. In order to bring home the charges, the prosecution has examined as many as eleven witnesses, but defence has not examined any witness. The trial Court after appreciating the evidence available on record convicted the appellant for offence under Section 302 of IPC and sentenced him as mentioned herein above. Hence, the appellant has preferred this appeal.
6. Learned counsel for the appellant contended that judgment of the trial Court is contrary to law and facts on record. It is neither legal nor proper nor correct. Trial Court did not consider the facts and depositions of the witnesses. Incident had taken place in the dark night, therefore, it was not possible to identify the assailant. Ikram (PW-2) and Rinu (PW-6) both are the child witnesses and they had been tutored and learnt the name of appellant as an assailant. They are not the eye witnesses. Appellant has been falsely implicated in this case due to some political enmity. The trial Court was wrong in drawing unwarranted inferences and not considering the material contractions in the statement of the prosecution witnesses. Prosecution could not prove his case beyond reasonable doubt. Conviction of the appellant is bad in law. Hence, he prays that appeal be allowed and the judgment and sentence passed by the trial Court be set aside and appellant be acquitted from all the charges.
Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 47. Per-contra, learned counsel for the respondent/ State opposes the prayer by submitting that trial Court after appreciating the entire evidence available on record in detail came to the conclusion that deceased was murdered by the present appellant, therefore, the trial Court has not committed any error in holding that the appellant is guilty of the offences under Section 302 of IPC, therefore, present appeal deserves to be dismissed.
8. Heard counsel for both the parties at length and perused the entire record of the trial Court with due care.
9. Considering the pleas raised at the bar, we are required to be examined as to whether the learned trial Court has committed any factual or legal error in arriving at a finding of guilt against the appellant regarding Section 302 of IPC.
10. We find that the following questions have emerged for consideration:
i) Whether, the death of deceased Idla is homicidal in nature or not?
ii) Whether, the appellant has committed the murder of the deceased or not?
11. Dr. Sachin Patidar (PW-5) has performed postmortem of the deceased on 25.09.2009 and on examination of the body of the deceased Idla he found above 5 incised wounds:-
(i) Over the body of the deceased, which are sized 10 cm x 2 cm into bony deep over face, just below the right angle of mandible.
(ii) Incised wound sized 4 cm x 2 cm into bony deep over the bridge of the nose.Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 5
(iii) Incised wound sized 3 cm x ½ cm into bony deep over the forehead right side vertically.
(iv) Incised wound sized 6 cm x 2 cm into vessel deep over back left side below left angle of the mandible.
(v) Incised wound sized 5 cm x 2 cm into bony deep over the right side on face over maxillary region.
During the internal examination he found multiple fractures on the left and right maxilla, mandible, femur and frontal bone. He opined that all the injuries were ante-mortem in nature and cause of death is shock and syncope, due to the excessive hemorrhage as a result of the injuries to both side of the carotid vessels. The postmortem report (Ex.P.12) reveals that deceased had sustained five injuries on vital part of his body caused by hard and sharp cutting objects.
12. From perusal of the record it appears that there is no evidence available which shows that the injuries sustained by deceased was caused by himself or sustained in any accident. Thus, there is no reason to disbelieve the cogent findings given by Dr. Sachin Patidar that the cause of death of the deceased was homicidal in nature.
13. In the present case Ikram (PW-2) and Rinu (PW-6) have been examined by the prosecution as the eye witnesses. Ikram (PW-2), who was aged about 12 years at the time of incidence, has categorically stated in his statement that at the time of incident he alongwith his sister Rinu and father Idla were inside their house and they were going to sleep. His father Idla was lying on a cot and he alongwith his sister was sleeping on the floor, at that time accused Gulabsingh came there with a Faliya and he forcefully took his father towards the field. When his father Idla cried for help, then he alongwith his sister ran after them with a battery (torch).
Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 6Then, he saw in the light of torch that appellant was inflicting injuries to his father by means of Faliya and caused injuries over his head and cheek, due to which his father died on the spot. After that, accused thrown out his dead body on the field of Bazari and fled away from the spot. Then Ikram returned back to his home alongwith his sister and on the next morning, he went to the house of Sarpanch Desla and narrated the whole incident to him that accused killed his father for non-fulfilling of his demand of liquor.
14. Other eye witness Rinu (PW-6), who was a child of 7 years of age at the time of incident, has also corroborated the statement of his brother Ikram by stating that at the time of incident when they were inside their house, at that time appellant Gulabsingh came there with a Faliya and took his father alongwith him. After hearing hue and cry of her father she alongwith her brother Ikram ran after them and saw that appellant was inflicting injury to his father by Faliya, due to which her father sustained injuries over his neck, face and head, due to which he died on the spot. Thereafter, they went to their home and on the same night they narrated the whole incident to Sarpanch.
15. Statements of both the eye witnesses are well supported by the statement of Desla (PW-1), who is the Sarpanch deposed that at about 7:00 AM, Ikram and Rinu came his home and told him that appellant Gulabsingh killed his father. When he went to the field of Idla, he found his dead body and saw injuries over both side of his ears and forehead. Thereafter, he lodged an FIR (Ex.P-1) at Police Station Nanpur. Sub- Inspector R.P.S. Chouhan (PW-11) also corroborated that on the same day he registered an FIR (Ex.P-1) at the instance of complainant Desla.
16. Kalu (PW-7), who is another son of deceased, who is not the eye Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 7 witness has deposed before the trial Court that after two days' of incident he returned back to his village then Ikram and Rinu told him that his father was killed by the appellant by means of Faliya. Vesta (PW-8) also corroborated the statement of eye witnesses Rinu and Ikram.
17. Counsel for the appellant contended that incident had taken place into the dark night and eye witnesses Ikram and Rinu had never met the appellant prior to the incident. Ikram has exaggerated his statement by saying that battery was switched on and in the light of battery he identified the appellant. Although he did not mention in his earlier statement recorded under Section 164 of Cr.P.C. (Ex.P-3) that he identified the appellant in the light of torch, but in his police statement (Ex.P-2) he has categorically mentioned that in the light of torch he saw the whole incident, therefore, statement of Ikram (PW-2) does not appear to be natural and reliable.
18. Counsel for the appellant also contended that Ikram (PW-2) and Rinu (PW-6) both of the child witnesses had been tutored by Desla (PW-1) and the Police Officers to implicate the appellant in this case, but Ikram and Rinu both have categorically denied in their cross-examination that they are falsely implicating the appellant after being tutored by the Desla.
19. In the instant case the statements of Ikram (PW-2) and Rinu (PW-6) have been found by the learned trial Court worth of reliance. We have carefully gone through their statements, which are clear, cogent, consistent and free from any material infirmity or anomaly. Despite being subjected to the searching cross-examination the defence has not been able to sake their credibility. Being the minor son and daughter of the deceased the fact that they were residing with the deceased in the same house, where the incident took place, their presence on the spot cannot be doubted.
Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 8Apart from this, nothing has been emerged in their cross-examination to indicate that they have any motive to falsely implicate the appellant in a case of causing death of his father.
20. It is relevant to note that merely because a witness is a child witness his testimony cannot be discarded. Section 118 of the Evidence Act, which provides that all persons shall be competent to testify unless the Court considers that they are prevented from understanding the questions put to them or giving rational answers to those questions, by tender years, extreme old age, disease, whether of the body or mind, or any other cause of same kind. In the present case, on perusal of the deposition- sheet of Ikram and Rinu, it is evident that the learned trial Court has put certain questions and tested their intelligence to answer those questions and has satisfied itself with regard to their competence to depose and therefore, we do not find any force in said argument raised by the counsel for the appellant.
21. A serious challenge has been made to the testimony of Ikram (PW-2) and Rinu (PW-6), who are the child witnesses aged about 12 and 7 years respectively, hence, at the very outset it has to be examined whether their testimony inspire confidence. The law is well settled that a reasonable degree of caution and circumspection is required while dealing with the evidence of a child witness (See: Rajaram Yadave Vs. State of Bihar reported in JT 1996 SC 140), however, if the same on a close and careful scrutiny is find to be reliable, the Court can act upon such an evidence.
22. Similarly, in the case of Dattu Ramrao Sakare Vs. State of Maharashtra reported in (1997) 5 SCC 341, Hon'ble Supreme Court has held as under:-
"A child witness if found competent to depose to the facts and reliable on such evidence could be the basis of Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 9 conviction. In other words even in the absence of oath the evidence of a child witness can be considered under Section 118 of the Evidence Act provided that such witness is able to understand the questions and able to give rational answers thereof. The evidence of a child witness and credibility thereof would depend upon the circumstances of each case. The only precaution which the Court should bear in mind while assessing the evidence of a child witness is that the witness must be reliable one and his/her demeanour must to like any other competent witness and there is no likelihood of being tutored". (See also Ranjeet Kumar Ram @ Rajeet Kumar Das Vs. State of Bihar (2015) SCC Online SC 500), State of Rajasthan Vs. Chandgi Ram and Ors. (2014) 14 SCC 596)."
23. In the instant case, the trial Court below rightly recorded its satisfaction that child witnesses are able to understand the questions and give the answers thereto. Thus, necessary precaution was taken by the Court below in light of the judgment of the Apex Court in the case of Dattu Ramrao (Supra). We do not see any procedural impropriety in the statement of child witnesses, which were recorded and appreciated. Ikram (PW-2) and Rinu (PW-6) narrated the nature of assault, place of incident, time of incident and about other attendant circumstances, during the course of the cross-examination, the defence could not demolish their statement wherein they narrated that their father was assaulted by the appellant. The nature of blows and consequent injuries narrated by them are tallying with the medical evidence. In this view of the matter, we are of the considered view that statement of these child witnesses, who are the eye witnesses appears to be trustworthy and their evidence cannot be discarded. Though there is certain discrepancies, but they are minor and peripheral in nature and do not dent the prosecution case at all.
24. Apart from the aforesaid evidence, Sub-Inspector R.P.S. Rathore (PW-11) deposed that he arrested the appellant on 27.09.2009 through arrest memo (Ex.P-8) and on the basis of his statement he recovered a blood stained Faliya vide seizure memo (Ex.P-9) then he recovered a Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 10 blood stained shirt of the accused vide seizure memo (Ex.P-10) and he sent all the seized articles to the FSL for chemical examination and FSL has been received, which is (Ex.P-18). As per the FSL Report, human blood was found over the seized Faliya. Although witness of seizure and disclosure statement Ramesh (PW-3) and Kailash (PW-4) have been turned hostile and have not supported the case of the prosecution, but we do not find any reason to disbelieve the above testimony of Investigating Officer.
25. The Hon'ble Apex Court in the case of Rameshbhai Mohanbhai Koli Vs. State of Gujarat and Others (2011) 11 SCC 111, it has been held that where the evidence of Investigating Officer, who recovered the material objects is convincing in evidence as to recovery need not be rejected on the ground that seizure witnesses did not support the prosecution version. The citation is completely applicable in the instant case on a minute scrutiny of the entire evidence led by prosecution, it is established beyond reasonable doubt that the appellant gave repeated blow of Faliya on the forehead, neck and face of the deceased, which are vital parts of the body. The statement of the eye witness Ikram (PW-2) and Rinu (PW-6) are well supported by the statement of Desla (PW-1) and also corroborated by the medical evidence as well as the FIR (Ex.P-1). Therefore, their statement appears to be trustworthy and on the basis of the aforesaid ocular and medical evidence available on record, it is established that appellant inflicted grievous injuries to the deceased over his vital parts. Therefore, we do not find that the trial Court has committed any illegality or irregularity in assessing the statement of the witnesses. The prosecution since has proved its case beyond reasonable doubts. Therefore, conviction of the appellant/accused under Section 302 of IPC is accordingly upheld.
Signature Not Verified Signed by: ANUSHREE PANDEY Signing time: 19-06-2023 19:09:28 1126. So far as the quantum of sentence is concerned, the appellant has been convicted for offence under section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs. 500/-. The brutal attack was made by the appellant on non-fulfilment of demand of wine. In case of any sympathy was to be shown by this Court by reducing the sentence awarded by the trial Court, it would not only shock the conscience of the society but most materially it will also motivate others to carry out the similar brutal act.
27. For the reasons stated above, this appeal is devoid of any merit substance and is hereby dismissed and conviction and sentence passed by the trial Court vide judgment dated 09.06.2010 is hereby affirmed.
28. The order regarding disposal of the property as pronounced by the trial Court is also affirmed.
29. A copy of this judgment be communicated to the concerned trial Court for necessary action.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE J U D G E
Anushree
Signature Not Verified
Signed by: ANUSHREE
PANDEY
Signing time: 19-06-2023
19:09:28