Madhya Pradesh High Court
Banshi Basore vs The State Of M.P. on 27 September, 2022
Author: Rajeev Kumar Dubey
Bench: Rajeev Kumar Dubey
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
ON THE 27th OF SEPTEMBER, 2022
CRIMINAL APPEAL No. 483 of 1998
BETWEEN:-
BANSHI BASORE S/O SUBRAN DHARKAR, AGED ABOUT 35 YEARS,
OCCUPATION: BUSINESS VILLAGE AMHARA POLICE STATION
1.
MADI DISTRICT SIDHI M.P. (MADHYA PRADESH)
RAMDAYAL S/O CHANNU DHARKAR, AGED ABOUT 26 YEARS,
OCCUPATION: AGRICULTURE VILLAGE AMHARA POLICE STATION
2.
MADI DISTRICT SIDHI M.P. (MADHYA PRADESH)
CHUNNU S/O SUBRAN BASORE, AGED ABOUT 40 YEARS,
OCCUPATION: LABOUR VILLAGE AMHARA POLICE STATION MADI
3.
DISTRICT SIDHI M.P. (MADHYA PRADESH)
LALE S/O SUBRAN DHARKAR, AGED ABOUT 26 YEARS,
4. OCCUPATION: AGRICULTURE VILLAGE AMHARA POLICE STATION
MADI DISTRICT SIDHI M.P. (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI DEVDATT BHAVE, ADVOCATE )
AND
THE STATE OF M.P. THROUGH STATION HOUSE OFFICER POLICE
STATION MADA DISTRICT SIDHI (MADHYA PRADESH)
.....RESPONDENT/STATE
(BY SHRI YADVENDRA DWIVEDI, PANEL LAWYER)
-----------------------------------------------------------------------------------------
(Reserved on 27/07/2022)
(Delivered on 27/09/2022)
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Signature Not Verified
Signed by: MONIKA
CHOURASIA
Signing time: 9/28/2022
3:46:09 PM
2
JUDGMENT
This appeal has been filed under Section 374 (2) of the Cr.P.C. against the judgment dated 13/2/1998 passed by Ist Additional Sessions Judge, Sidhi in S.T. No.63/1996, whereby learned Sessions Judge found appellants guilty and convicted and sentenced as under :
Appellants Sections Sentence
304 Part-II of the IPC Five years R.I.
Co-accused
147 of the IPC Two years R.I.
Guruprasad
323 of the IPC One year R.I.
304 Part-II read with Section
Five years R.I.
149 of the IPC
Appellant nos.1 to 4
147 of the IPC Two years R.I.
323 of the IPC One year R.I.
2. Brief facts of the case are that on 21/4/1996, Mahaveer (PW1) lodged a report at P.S. Waidhan averring that he used to work as a labourer. On 20/4/1996 he had gone to Sobran's house located at village Amhara along with Tejbali (PW2), Ram Sajeevan (PW10), Ramprasad (PW8), Chhotak (PW12), Ram Charan and Rambraj (deceased). From here at around 7:00 in the evening, they proceeded to Negai for the Marriage procession (Barat) of Banshi's son by tractor. After going some distance, co-accused Guruprasad and appellant no.4 Lale started quarreling with each other in the tractor. At that time, Brajwasi Sahu, Tejbali, Rambraj and he were sitting in the trolley attached to the tractor and playing musical instruments. All of a sudden co-accused Guruprasad Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 3 started beating him. He beat him with a stick due to which he sustained an injury in his back. Due to the quarrel, the tractor driver stopped the tractor. When they started getting off the tractor appellant no.1 Banshi assaulted him with kicks and fists and appellant no.4 Lale assaulted him with a stick, appellants Lale, Bansi, Ramdayal and co-accused Guruprasad started beating them with stones Guruprasad threw stones which hit Rambraj's head. They ran away from the spot but got separated due to darkness. On reaching Negai at 8:00 am in the morning, it was learnt that Rambrij did not return home. Raghvendra Dwivedi (PW18), SHO Waidhan wrote that report and registered Crime no. 0/1996 (Ex.P-1) at PS Waidhan for the offence punishable under Sections 147,148 and 307 of the IPC against co-accused Guruprasad and appellants namely Banshi, Ramdayal, Chunnu and Lale. On the same day, at 3 pm Mahaveer again informed the police that the dead body of Rambraj, who sustained injuries in the incident was lying under a mango tree near the drain in village Siddhikala. On that, Raghvendra Dwivedi (PW18) also registered Merg no.0/96 (Ex.P-26) at PS Waidhan and went to the spot, where he prepared an inquest memo of the dead body of Rambraj (Ex.P-15). Thereafter, he sent his dead body along with an application (Ex.P-27) to Community Health Centre, Waidhan for postmortem. He also prepared a spot map (Ex.P-16) of the place from where he found the dead body of deceased Rambraj, he also seized blood-stained soil and simple soil from the spot and prepared a seizure memo (Ex.P-17) and also recorded the statements of Prabhu, Hiralal, Mahaveer, Jagbali and Jagdhari.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 43. Thereafter, FIR (Ex.P-1) and inquest report (Ex.P-26) along with other documents were sent to P.S. Mada for original registration in whose jurisdiction the said offence took place. Upon receiving the reports at Police Station, Mada Crime no.31/96 (Ex.P-13) and inquest no.10/96 (Ex.P-3) was registered by R.C. Mishra (PW6), Sub-Inspector, P.S. Mada. He conducted further investigation of the crime and during the investigation, he sent Tejbali and Mahaveer for medical examination along with applications (Ex.P-4 & P-5) respectively to Primary Health Centre, Waidhan and also prepared a spot map (Ex.P-6) of the place, where the incident took place and seized one stone and one shoe from that spot and prepared seizure memo (Ex.P-7). On 22/4/1996 at Community Health Centre, Waidhan Dr. G.S.Soni (PW5) conducted postmortem of the dead body of deceased Rambraj and gave the postmortem report (Ex.P-22) to the effect that Rambraj died due to head injury and he also seized blood stained clothes of deceased Rambraj and sent it in a sealed packet to P.S. Waidhan, where R.C. Mishra (PW6) seized that packet and prepared a seizure memo (Ex.P-8). On 24/4/1996 Dr. B.L.Seth conducted medical examination of injured Tejbali (PW2) and Mahaveer (PW1) and gave medical examination reports (Ex.P-24 & P-25) respectively.
4. During the investigation, R.C. Mishra also arrested co-accused Guruprasad and seized one stick at his instance and prepared memorandum (Ex.P-9) and seizure memo (Ex.P-10). He also arrested appellant Lale and seized one stick at his instance and prepared a memorandum (Ex.P-11) and seizure memo (Ex.P-12). He also recorded Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 5 the statements of prosecution witnesses Tejbali (PW2), Sariman (PW3), Ujagir (PW4), Ramprasad (PW8), Ramsajiwan (PW10), Chhota @ Chhotelal (PW12), Narendra Singh, Ramlochan Singh, Ramcharan, Hanuman Singh, Vikram Sahu, Brajendra Jaiswal, Ramsubhag, Ramnarayan and Suresh Prasad. After completion of the investigation, police filed the charge sheet against the appellants and co-accused Guruprasad before JMFC Waidhan. On that charge sheet, Criminal Case no.775/1996 was registered. Learned JMFC committed the case to the Court of Session. On that, ST no.63/1996 was registered. Learned ASJ framed the charge against the co-accused Guruprasad for the offence punishable under Sections 147 and 323, 302 of the IPC and against the appellants namely Banshi, Ramdayal, Chunnu and Lale for the offence punishable under Sections 147, 323 and 302/149 of the IPC and tried the case. The appellants and co-accused Guruprasad abjured the guilt and took the defence that they are innocent and have falsely been implicated in the case. However, after trial learned ASJ acquitted co-accused Guruprasad from the charge framed under Section 302 of the IPC and appellants from the charge framed under Section 302/149 of the IPC and in lieu of that found co-accused Guruprasad guilty for the offences punishable under Sections 304 part II and 147 and 323 of the I.P.C. and appellants found guilty for the offence punishable under Sections 147, 323 and 304 part II read with 149 of the IPC and sentenced them as indicated above. Being aggrieved from that judgement, co-accused Guruprasad and appellants filed this appeal.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 65. It is pertinent to mention here that apart from appellants, this appeal has also been filed by co-accused Guruprasad but during the pendency of this appeal, Guruprasad died on 23/7/2012 so co-ordinate Bench of this Court vide order dated 6/4/2022 abated the appeal against co-accused Guruprasad. Therefore this judgement is only confined up to appellants namely Banshi, Ramdayal, Chunnu and Lale.
6. Learned counsel for the appellants submitted that according to the postmortem report (Ex.P-2), deceased Rambraj died due to head injury and according to the prosecution story itself co-accused Guruprasad caused that injury. Eyewitnesses of the incident Mahaveer (PW1), Tejbali (PW2), Sariman (PW3), Ujagar (PW4), Hiralal (PW7), Ramprasad (PW8), Ramsajiwan (PW10) and Chhotelal (PW12) clearly deposed that Guruprasad threw stones at Rambraj which hit his head due to which he sustained injury in his head. There is no evidence on record to show that the appellants had a common object with co-accused Guruprasad for causing that injury or he formed an unlawful assembly with Guruprasad. Even regarding the incident, there are many omissions and contradictions in the statement of the alleged eyewitness of the incident. They have concealed the fact as to how the incident started and have given false statements about the same, which shows that they falsely implicated the appellants. So their statements can not be believed. Learned trial Court without appreciating all these facts, wrongly found the appellants guilty for the aforesaid offences. So appellants be acquitted from all the charges.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 77. On the other hand, learned counsel appearing for the respondent/State opposed the prayer and submitted that from the prosecution evidence, the guilt of the appellants is clearly proved. So, learned trial Court did not commit any mistake in finding the appellants guilty for the aforesaid offences. Hence, prayed for the rejection of the appeal.
8. The point for determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellants under Sections 147,323,304 part II read with 149 of IPC are liable to be set aside for the reasons stated in the memo of appeal and argued before this court.
9. On the point that Rambraj died due to head injury, there is no ambiguity in the prosecution evidence. Learned counsel of the appellants also did not challenge this fact during the course of arguments. Even otherwise in this regard, Raghvendra (PW18) deposed that on 21/04/1996 upon receiving the information from Mahaveer that the dead body of Rambraj was lying under a mango tree, at village Siddhikala he registered inquest no.0/1996 (Ex.P-16) and went to the spot, where he prepared an inquest memo of the dead body of deceased Rambraj (Ex.P-15). Thereafter, he sent his dead body along with an application (Ex.P-27) to Community Health Centre, Waidhan for postmortem.
10. Dr. G.S.Soni (PW5) who conducted the postmortem of the dead body of deceased Rambraj deposed that on 22/4/1996, he was posted as Block Medical Officer, Community Health Centre, Waidhan and on that Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 8 day at around 11 am, he conducted the postmortem of the dead body of deceased Rambraj. In the postmortem, he found the following external injuries on his dead body:-
(i) One crushed wound left side of the skull, whose size was 3x1/2" x bone deep and below that wound parietal bone was also broken in 4" size.
(ii) One crushed wound on the left side of the skull, whose size was 3x1/2" x bone deep and below that wound parietal bone was also cracked in the length of 4 inches.
(iii) On the left side of the forehead, a pinkish-blue swollen bruise measuring 3x2 inches.
(iv) A swollen wound on the right side of the chest which was 3x 2 inches in size.
11. In the internal examination, he found that his brain was swollen, and outside and inside of its membrane a blood clot was present. Both parietal bones of the skull were broken. In his opinion, Rambraj died due to shock resulting from head injuries. The duration of his death was within 36 hours from the autopsy. In this regard, his statement has also been corroborated by the postmortem report (Ex.P-2). There is no ambiguity in this regard in the statement of these prosecution witnesses. From the statement, it is clearly proved that Rambraj died due to head injury and he died within 36 hours from the time of post-mortem i.e. 22/04/1996 at 11 am.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 912. On the point, whether on 20/04/1996 at around 7 p.m. near village Amraha, appellants and co-accused Guruprasad formed an unlawful assembly and in furtherance of their common object, they assaulted Rambrij due to which he sustained injuries and died and they also assaulted Mahaveer and Tejbali and caused injuries to them.
13. In this regard Mahaveer (PW1) deposed that on the date of the incident, he had gone to Banshi's house to play the Baja (musical instrument) along with eight other persons by the tractor. On their way from Banshi's house to village Negai, near a drain, the tractor driver asked them to get off the tractor, which all of them did. Appellant Lale asked to play the Baja (musical instrument) but they told him to cross the drain first and then they would all play the Baja. Appellant Lale told Rambraj to play the shehnai (clarinet), and then Rambraj started playing the shehnai, on which Lale saying that play a good shehnai and pushed him due to which one end of the shehnai went inside his mouth and he got hurt. When the tractor came off the drain, Rambraj was not climbing on the tractor, on this Gurprasad said we have given money, so you will have to go with them. Ramdayal and Lale beat him with sticks, and after that Gurprasad hit him on the head with a stone, due to which he fell down. After the fall of Rambraj, all the appellants surrounded him. When he intervened Ramdayal assaulted him with a stick and he also assaulted Tejbali with a stick. They ran away from the spot leaving Rambraj on the spot. He lodged the report (Ex.P-1) of the incident at Police Station Waidhan.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 1014. In this regard, his statement is also corroborated by the statements of other eyewitnesses of the incident Tejbali (PW2), Sariman (PW3), Ujagir (PW4), Hiralal (PW7), Ramprasad (PW8), Ramsajiwan (PW10) and Chhotelal (PW12), who have also deposed almost the same story with minor contradictions. Tejbali (PW2) deposed that in the incident Ramdayal, Lale, Chunnu, Banshi beat Rambrij with sticks and Guruprasad assaulted Rambrij on his head with a stone. Rambrij fell down, after being hit by stone. Thereafter all the appellants and co- accused assaulted him with sticks. Appellants Lale and Ramdayal also assaulted him with a stick. Sariman (PW3) deposed that in the incident Ramdayal, Lale, Chunnu, Banshi beat Rambrij with sticks and Guruprasad assaulted Rambrij on his head with a stone. Rambrij fell down, after being hit by stone. On that, he ran away from the spot. Ujagir (PW4) deposed that in the incident Ramdayal, Lale, Chunnu, Banshi beat Rambrij with sticks and Guruprasad assaulted Rambrij on his head with a stone. Rambrij fell down, after being hit by stone. On that, they flew away from the spot leaving Rambrij on the spot. The next day he came to know that Rambrij has died. He also deposed that appellant Lale also assaulted Mahaveer.
15. Hiralal (PW7) deposed that when Rambrij refused to play the shehnai, Lale slapped him on his neck, on which Rambrij said that he would neither play the shehnai nor he would go to the Barat, then all the appellants started beating him due to which he fell down. Thereafter, Guruprasad picked up a stone and hit him on his head. Ramprasad (PW8) deposed that when Rambrij refused to go to the Barat, the fighting started, Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 11 and Lale hit Rambrij on his left hand with a stick. Ramdayal hit Rambrij with a stick on his back, Banshi hit his testicles with a stone, Chunnu assaulted him with a stone which hit his left rib and Guruprasad assaulted him with a stone on his head, on which Rambrij fell down. Mahaveer and Tejbali ran to save him, then someone beat Mahaveer and Tejbali with stones and sticks. After the incident, they ran away from the spot.
16. Ramsajiwan (PW10), deposed that when Rambrij refused to go to the Barat, the fighting started, Ramdayal hit Rambrij with a stick, which hit him in his back. Chunnu hit him in his testicles, and Lale hit him with a stick due to which he fell down. Thereafter, co-accused Guruprasad hit him with a stone on his head. When Mahaveer intervened, Ramdayal hit Mahaveer in the back with a stick and Lale hit Tejbali. On which they ran away from the spot. Rambrij was lying there. On the second day, it was learnt that he had died. Chhotelal (PW12) deposed that when Rambrij refused to play the Baja, Ramdayal hit him in the arm and back, after which Banshi and Chunnu hit him with a stone. Guruprasad hit his testicles with a stone, due to which he fell down. After that, they ran away from the spot. On the second day, it came to know that Rambrij has died.
17. In the incident, Mahaveer and Tejbali also sustained injuries the prosecution story is also corroborated by the statement of Dr. B.L.Seth (PW17), who conducted the medical examination of injured Tejbali and Mahaveer and gave medical examination reports (Ex.P-24 & P-25) respectively. He deposed that on 24/04/1996 he was working as a Senior Medical Officer in Primary Health Center, Khutar. On that date, he Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 12 conducted medical examination of Tejbali. In his examination, he found
(i) one crushed wound on his right shoulder, 2.1/2 x 1.2 Inches in size, (ii) one crushed wound on his right knee 1x 1/2 inch in size. Both the injuries were caused by hard & blunt objects and the duration of these injuries was within 3 to 5 days from the date of examination. He further deposed that on the same day he also examined Mahaveer and in his examination, he found (i) one crush wound 4.1/2 x 3/4 inches in size on his back in the right scapular region, which was caused by a hard & blunt object, and duration of the injury within 3 to 5 days. From the statements of the above-mentioned prosecution witnesses, it is clear that all the appellants and co-accused Guruprasad took part in the incident and assaulted deceased Rambrij in the incident and also caused injuries to Mahaveer & Tejbali.
18. Though on the point that how the quarrel was started their court statements do not match with their case diary statements (Ex.D-1 to Ex.D-8) respectively. In the case diary statements of the abovementioned prosecution witnesses, it is not mentioned that the quarrel started because of Rambrij's refusal to go to the Barat and refusing to play the shehnai, but it is mentioned that when they were going by tractor in the procession, on the way, there was a fight between Guruprasad and Lale when Mahaveer objected, then the appellants and Guruprasad started beating Mahaveer, Rambrij.
19. Similarly, with which weapon did the appellants assault Rambrij and in which part of his body they inflicted injury, there is a contradiction Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 13 in the court statements and the case diary statements of these witnesses. But in the case diary statements of these witnesses, it is mentioned that in the incident all the appellants and co-accused Guruprasad together assaulted Rambrij. So only on the basis of contradictions in this regard, their statements can not be discarded as a whole. Where in a sudden quarrel, the appellants and co-accused Guruprasad assaulted Rambrij and other injured Mahaveer and Tejbali. It is not necessary that everyone present on the spot at the time of the incident could see exactly which part of the body of Rambrij was hurt by which weapon by which appellants. In such a situation, it is natural for some contradictions to come in their statements regarding the incident. So on that ground, their statements can not be completely discarded. Even in cases where a major portion of the evidence is found deficient, if the residue is sufficient to prove the guilt of the accused, the conviction can be based on it. In a criminal trial especially in a case of eyewitnesses, the maxim falsus in uno, falsus in omnibus cannot apply and the court has to make efforts to sift the grain from the chaff as held by the Apex court in the case of Sucha Singh v. State of Punjab, (2003) 7 SCC 643.
20. No such evidence has come in the record that the above-mentioned witnesses have any enmity with the appellants, in such a situation why would they make false statements against the appellants without any reason? On the point that all the appellants and co-accused Gruprasad took part in the incident and assaulted Rambrij there is no contradiction in their statements. So on that point, there is no reason to disbelieve their statements.
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 14Though in the postmortem report of the deceased Rambrij (Ex.P-2) it is mentioned that Rambrij died due to head injury and from the statements of prosecution witnesses, it is established that said injury was caused by co-accused Gruprasad. But from their statements, it is also proven that all the appellants took part in the incident. This shows that the appellants and co-accused Guruprasad formed an unlawful assembly and in furtherance of their common object, they assaulted Rambrij due to which he sustained injuries and died. And appellants Ramdayal and Lale also assaulted Mahaveer and Tejbali and caused injuries to them. So, in the considered opinion of this court, learned trial Court did not commit any mistake in finding appellants guilty for the offences punishable under Sections 147, 323 and 304 part II read with Section 149 of IPC.
21. As far as the sentence is concerned, learned counsel of the appellants submitted that incident took place about 26 years ago and that the appellants have been facing trial for the last 26 years and that when the incident took place in the year 1996 the appellants were young and now they are aged persons. Deceased Rambrij died due to a head injury and that injury was caused by co-accused Gruprasad, not by the appellants. They are the first offenders and remained in jail for some time during the trial of the case. So, they may be punished only with the period of imprisonment that they have already suffered during the trial of the case.
22. Looking to the facts and circumstances of the case and contention of learned counsel for the appellants and the fact that deceased Rambrij Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM 15 died due to head injury and that injury was caused by co-accused Gruprasad, not by the appellants. The appeal is partly allowed and the sentence of the appellants under Section 304 part II read with 149 of IPC is reduced from Five years R.I. to Three years R.I. Conviction and sentence of appellants under Sections 147 and 323 of IPC of assaulting other injured Mahaveer (PW1) and Tejbali (PW2) are hereby affirmed. All the jail sentences of the appellants shall run concurrently. The period already undergone shall be set off from the period of substantive jail sentences.
23. The appellants are on bail, so their bail bonds are cancelled. They are directed to surrender before the trial Court within 15 days from today and the trial Court is directed to send them to jail for serving the remaining part of the jail sentence. If the appellants do not surrender, the trial Court shall take action according to law for the arrest of the appellants.
24. A copy of this judgment be sent to the concerned trial Court for information and necessary compliance.
(Rajeev Kumar Dubey) JUDGE m/-
Signature Not Verified Signed by: MONIKA CHOURASIA Signing time: 9/28/2022 3:46:09 PM