Madhya Pradesh High Court
Nanuram S/O Bhanwarlal And Anr. vs State Of M.P. on 4 August, 2005
Equivalent citations: 2005CRILJ4586
Author: S.K. Gangele
Bench: S.K. Gangele
JUDGMENT
1. By this appeal the appellants seek quashment of the judgment of conviction and sentence passed against, them by the learned Addl. Sessions Judge, Indore in S.T. No. 383/98 thereby convicting the appellant Nanuram under Section 302and 323/34, IPC and sentencing him to suffer Imprisonment for life and R.I. for six months respectively and appellant Meharban Singh under Section 302/34 and Section 323, Indian Penal Code and sentencing him to suffer imprisonment for life and to suffer R.I. for one year respectively.
2. Co-accused Gendalal was also tried alongwith the aforesaid appellants, but he has been acquitted from the charges levelled against him. The trial proceeded showing the co-accused Rugnath alias Raghunath as absconding.
3. The prosecution case against the appellants is that on 28-11-97, the Station House Officer of P. S. Lasudiya (PW-1) Mourya received a telephonic message from M. Y. Hospital, Indore that one Shankar resident of village Dhabli Kankad who was brought in injured condition in the hospital has died. On this information, the Station House Officer registered Merg and reached at the hospital. He issued notices (Ex.P/2) to the witnesses for inquest of dead body of the deceased Shankar and sent the dead body for post-mortem examination which was conducted by PW-9 Dr. Jain the same day and his postmortem report is Ex.P/18. On the same day the I.O. recorded the state-merit of the wife of deceased Shankar named Pepubai, Nanuram father-in-law of the deceased and other villagers named Sajjansingh, Gopal, Marigilal and Ramesh etc. On the basis of the statement given by the witnesses, he registered the FIR (Ex.P/ 21) for commission of murder of Shankar against the appellants, acquitted co-accused Gendalal and absconding co-accused Rugnath alias Raghunath. He reached on the spot and on the basis of the information furnished to him by Pepubai, he prepared the spot map (Ex.P/22) and also seized the blood-stained and controlled earth from the spot vide seizure-memo Ex. P/23.
On 28-11-97, PW-2 Nanuram s/o Bhagirath was medically examined by PW-8 Dr. Joshi. His MLC report is Ex.P/17. The I.O. arrested the accused persons on 29-11-97 and on the basis of the memoraridurn-statements Ex.P/7, P/8 and P/9, seized the sword- from appellant No. 1 Nanuram through seizure-memo Ex.P/10 and the blood-stained clothes by seizure-memo Ex. P/12. He also seized lathis from acquitted co-accused Gendalal and appellant No. 2 Meharban Singh vide seizure-memos Ex.P/ 13 and P/ 14. The Investigating Officer Shri Maurya sent the sword with querry. The query is Ex.P./19-A and reply to querry given by the doctor Jain after examining the sword is Ex.P/19. The seized blood-stained articles were sent to the FSL and its report is Ex.P/ 25. According to FSL report P/25, blood was found on the sword, clothes of Nanuram and earth and clothes of deceased. After requisite investigation, the appellants and co-accused persons were charged-sheeted. The fourth accused Rugnath alias Raghunath was shown to be absconding.
4. The appellants denied the allegations levelled by the prosecution and pleaded false implication. Therefore, they were put to trial and the learned trial Court after examining the prosecution witnesses, heard both the parties and convicted and sentenced the appellants as noted above. It, however, acquitted the co-accused Gendalal.
5. Learned counsel for the appellants has submitted that the deceased Shankar was suffering from cancer and he died because of cancer disease. The injury found on the person of the deceased by Dr. P.C. Jain (PW-9) was the injury due to cancer disease and the appellants have been falsely implicated. As against the submission of the learned Counsel for the appellants, learned Public Prosecutor Shri Nevalkar has submitted that in view of the postmortem report Ex. P/18 and the statement of Dr. Jain (PW-9), the deceased met a homicidal death because of the injury caused on his left shoulder, chest which damaged the membrane of lungs and pleura. According to him me dimension of injury sustained by Shankar was 15 cm x 4 cm x 6 cm and it was sufficient in the ordinary course of nature to cause death. The deceased died within 24 hours from the P.M. examination because of shock due to excessive bleeding from the wound. The autopsy was performed on 28-11-97 at 1.40 p.m.
6. Learned Public Prosecutor has also invited our attention towards the relevant paras of the judgment as well as the statement of injured eye-witness Nanuram (PW-2), father-in-law of deceased and other witnesses coupled with the statement of PW-8 Dr. N. C. Joshi who examined PW-2 Nanuram on 28-11-97 and found lacerated wound on left parietal region admeasuring 3" x 1/2 x 9". Learned counsel appearing for the State has vehemently supported the Judgment and finding recorded by the trial Court.
7. Having heard learned Counsel for the parties and after perusing the entire record, we are of the opinion that there is no substance "in the appeal of the appellants. Learned trial Court has rightly placed reliance on the testimony of injured eye-witness PW-2 Nanuram, medical evidence of PW-8 Dr. NC Joshi as well as the statement of PW-1 Vikramsingh, PW-3 Sakubai, PW-4 Bhuriya, PW-5 Ramesh chandra Solanki with regard to circumstantial evidence and PW-10 Bhupendra Singh Mourya for performance of investigation and recovery of sword from appellant No. 1 Nanuram on the basis of his memorandum-statement Ex,P/10, and in pursuance thereof recovery of sword by seizure memo Ex.P/11, was done.
8. PW-2 Nanuram s/o Bhagirath is the father-in-law of deceased Shankar who was residing with him and his family. According to this witness, the appellants tied a cow of one Samandar Singh on the embankment of the field which was objected by his son-in-law deceased Shankar, On the objection being raised by Shankar, absconded co-accused Rugnath alias Raghunath and others took the cow to their house. On the date of incident, in the night, this witness along with the deceased and the deceased's wife as also the other inmates of the house went to sleep. At that juncture, appellants, acquitted co-accused Gendalal and absconded accused Raghunath reached over there. Raghunath and Nanuram were having sword with them whereas Gendalal and Meharban Singh were armed with lathis. They were shouting calling the deceased Shankar to come put of the house and that they will teach him the lesson regarding his behaviour on the issue of cow. But, his son-in-law deceased Shankar immediately did not come out of the house, but after some-time he, his son-in-law Shankar and daughter Pepubai went out of the house. Thereafter, deceased Shankar was assaulted by sword by absconded co-accused Raghunath and appellant No. 1 Nanuram. The appellant No. 2 Meharban Singh and Gendalal also assaulted by lathi. Because of assault, deceased fell down.
9. This witness has further testified that when he tried to save his son-in-law, he too was assaulted by lathi on his head by appellant No. 2 Meharban Singh. Because of lathi-blow on the head, he fell down. The accused persons, after assaulting, ran-away. One Sajjan Singh resident of their village with Sarpanch of village Kelod came there with a matador vehicle and took them to the M. Y. Hospital, Indore. In the hospital, he came to know that his son-in-law Shankar had died. The further say of this witness is that he had a live connection of electricity in his house, but the appellants disconnected the same and thereafter, assaulted him. At the scene of occurrence, his daughter (wife of deceased Shankar) Pepubai was present whereas PW-3 Sakubai was at her house. In cross-examination, this witness has admitted that deceased Shankar was having a single barrel guri, but he denied the suggestion that he was always keeping the guri in loaded condition. He voluntarily deposed that if the deceased would have had the guri in his hand, his life could have been saved. He has denied the suggestion regarding the dispute between the deceased and other persons.
10. Further, in para 8, this witness denied the suggestion of defence that the deceased Shankar assaulted the appellant No. 1 Nanuram by lathi and caused injury on his head. Deceased Shankar and accused persons were having previous ill-will prier to the date of incident and the cow which was tied was not that of deceased Shankar but, the same was owned by accused persons. In cross-examination, the defence has suggested that there was darkness in the night and because there was no electricity, deceased was sleeping on a cot near the place where the cow was used to be tied with a fixed thick wooden stake (KHUNTA) and he fell from the cot and hit with the stake sustaining injury on his person. This suggestion has also been denied. He further denied the suggestion that on the call being made by the appellants, only Shankar came out of the house, and deposed that along with Shankar, they all came out of the house. In para 11 of his cross-examination, he has specifically deposed that appellant No. 1 Nanuram caused injury on the shoulder of the deceased by sword. At the first instance, he said that he could not say as to on which shoulder, injury was caused. Thereafter, he deposed that the injury was caused on right hand, specifically on JEEVANE HAATH. The defence further suggested that the deceased was an influential person and had enmity with so many persons, he was assaulted by some other persons and accused persons were falsely implicated. In cross-examination of this witness, we are not finding any substantial material to discard his testimony. It is true that he is the father-in-law of deceased, but, only because of this reason, his evidence cannot be brushed aside specifically when the incident occurred in front of his house and he sustained lacerated wound on the left parietal region and at the time of medical examination his wound was bleeding.
11. We have paid our careful attention to appreciate the statement of this witness because he is related to the deceased and we do not find any glaring and substantial material to discard the testimony of this witness. In his examination-in-chief, he has attributed his assault to deceased by all the four-accused persons which is not corroborated by medical evidence. PW-9 autopsy-surgeon Dr. P. C. Jain found only one incised wound as mentioned herein -above and in cross-examination para 11, the witness attributed this injury to appellant No. 1 Nanuram. It appears that he exaggerated: the fact about assaulting the deceased by all the accused persons. But the same is not sufficient to discard his entire testimony. The maxim 'falsus in uno falsus in omnibus' is not applicable in our country. It is the duty of the Court to separate the grain from the chaff. In. the present ease we have been able to separate the grain from the chaff and we are of the considered view that the injury sustained by the deceased resulting into this death was caused by appellant No. 1 Nanuram.
12. PW-1 Vikram Singh reached at the house of PW-2 Nanuram in the night itself after receiving the information of quarrel by appellants with PW-2. He was informed by one Shankar s/o Gopal about causing of injury to deceased Shankar and PW-2 Nanuram by co-accused persons, but, this part of his statement is not admissible in evidence because, Shankar has not been examined by the prosecution, therefore, the same is hit by the rule of 'hearsay' evidence. But, this witness can be relied upon to this extent that in the night itself he reached at the house of PW-2 Nanuram in a jeep along with Mangilal and Sajjansingh and saw the deceased and PW-2 Nanuram lying outside the house. He immediately took both the injured persons to the M. Y. Hospital, Indore where on examination, Shankar was declared dead by the doctor.
13. Another witness PW-4 Bhuriya who is son of the deceased aged 14 years, has narrated the whole incident in his examination-in-chief, but in cross-examination he stated in para 8 that when he came out of the house, the accused persons were going after beating. He did not see who was assaulting whom. He did not see clearly as to who was assaulting, but according to this witnesses, he saw the appellants going from the scene of occurrence and there was visibility.: In para 9, the defence suggestion of tutoring and giving false statement were denied by this witness. Looking to the statement of this witness, the statement of PW-2 Nanuram finds support up to the extent of arrival of the accused persons at the house of PW-2 Nanuram and going away when this witness saw them. He also saw his father and maternal grand-father in injured condition.
14. Learned trial Court placed reliance on the statement of PW-5 Rameshchandra Solanki who has deposed that when he reached at the house of PW-2 Nanuram, Pepubai wife of the deceased Shankar disclosed before him about assault by appellant Nanuram and Meharbari Singh and other-co-accused persons to her husband and father by sword and lathi. Learned trial Court has relied upon the testimony of this witness and as per provision under Sections 6 and 7 of the Evidence Act i.e. 'res gestiae', but, we are of the opinion that the statement of this witness PW-5 Rameshchandra Solanki cannot be relied upon because' Pepubai has not been examined by the prosecution because she died before commencement of the trial. This witness was informed by Pepubai, and, therefore, his statement is hit by the law of hearsay evidence. It will not be admissible under Section 6 of the Evidence Act, because, disclosure by Pepubai to this witness about the incident was though connected with the information of crime, but the same did not form the part of same transaction. After witnessing the incident by Pepubai, when villagers reached at her house, at that time she disclosed about the incident and names of the accused persons. Looking to the time-gap for disclosure before the villagers vis-a-vis before this witness Rameshchandra Solanki (PW-5), his statement would not be admissible under Section 6 of the Evidence Act and the question of admissibility of his statement as per provision under Section 7 of the Evidence Act, which says that "facts which are the occasion, cause or effect of facts in issue, are relevant", would not arise. The disclosure about the incident after the incident by Papubai to this witness is not covered by the provision under Section 7 of the Evidence Act. But, the statement of this witness is useful only upto the extent that he over-heard the cries from the house of the deceased and reached at his house. There he saw the deceased Shankar and PW-2 Nanuram lying in injured condition. He sent the son of one Gopalji to village Kelod Haala from where PW-1 Vikramsingh Sarpanch reached in a jeep at the village of deceased and took the deceased and injured to the hospital.
15. In cross-examination para 12, this witness has stated that at the house of deceased Shankar and Sakubai (PW-3), electric facility was available. An electric bulb was also fixed outside the house and when he reached over there, he saw the electric bulb on. These are the important facts supporting the statement of injured witness PW 2 Nanuram.
16. The defence had taken mainly two stands, firstly, causing injury to deceased Shankar was accidental by a fall and secondly, in the darkness in night, some one assaulted the deceased. PW-2 Nanuram and their witnesses were not able to see and identify them because of non-availability of light. These versions of the defence are falsified by the statement of PW-5 Rameshchandra Solanki and the medical evidence. The eyewitness account of PW-2 Nanuram is duly corroborated by the medical evidence of PW-9 Dr. P. C. Jain who found incised wound on the left shoulder, cutting muscles and crossed the shoulder region going downwards through clavicle bone and damaging the membrane of lung and pleura. According to this witness, the margins of the injury were regular and clean cut. The injury was sufficient in the ordinary course of nature to cause death.
17. At the instance of appellant Nanuram, through memorandum Ex. P/9, sword was seized vide seizure-memo Ex. P/10 which is duly proved by PW 10 Investigating Officer Bhupendra Singh Mourya and Panch-witness PW 5 Rameshchandra Solanki. On examination of this sword, doctor PC Jain (PW-9) opined that the injury sustained by the deceased and the corresponding cut-marks on his cloth (kurta) could be caused by the said sword. He proved his report on this aspect as Ex. P/ 19. In cross-examination, his view is again fortified. In para 12, he stated that up to 5 cm the sword was having double edges and if the same is used with force for causing injury, the injury up to the depth of 6 cm having both the margins clean cut, could be possible. We are of the view that legally this opinion of the doctor about causing of injury by sword sent to him for examination cannot be taken into consideration because the sword was not produced in the Court and shown to the witness. Therefore, the substantial evidence to this effect is missing.
18. Even after ignoring this part of the statement, of this witness the remaining part of his evidence is duly corroborating the testimony of injured eye-witness Nanuram (PW-2). The statement of the eye-witness is also corroborated by the medical evidence of PW-8 Dr. N. C. Joshi who found lacerated wound on the skull of this witness PW-2 Nanuram.
19. Now the question for determination before us is whether the appellant No. 2 Meharban Singh could be convicted for commission of offence punishable under Section 302 of the IPC with the help of Section 34, IPC. PW-2 Nanuram has specifically stated that there was some sort of dispute over tying of cow between the deceased and the appellants on the date of incident. There-after, in the night between 10.00 and l0.30 p.m., the accused persons reached at his house. He, his son-in-law Sharikar and other inmates of the house were sleeping inside the house. By shouting the appellants asked Shankar (deceased) to come out of the house. When he came out of the house, he was assaulted first by sword and the appellant caused fatal injury as found by the autopsy-Surgeon on the person of deceased Shankar. This witness PW-2 Nanuram when tried to rescue him, appellant No. 2 Meharban Singh dealt a lathi blow on the head of this witness causing lacerated injury. Appellant No. 2 Meharban Singh was having knowledge of possession of sword by appellant No. 1 Nanuram, but, only on the basis of arrival at the house of deceased together by the accused persons with weapon, it could not be assumed that the appellant No. 2 Meharban Singh was sharing common intention to commit murder with appellant No. 1 Nanuram. As such, there was no strong enmity between the deceased and the appellant. The dispute arose on a trivial issue of tying of cow which laid the accused persons to assault the deceased and witness PW-2 Nanuram. Therefore, on the basis of existing material, it would be very difficult to say that the appellant No. 2 Meharban Singh was having pre-meeting of mind, premeditation and pre-plan with appellant No. 1 Nanuram to commit murder of Shankar. But at the same time, he can be attributed with the knowledge of causing grievous injury by appellant No. 1 Nanuram by sword to deceased Shankar. Therefore, we are of the considered view that the appellant No. 2 would be liable for conviction under Section 326 read with Section 34 of the IPC for causing injury to deceased and under Section 323, IPC for causing injury to PW-2 Nanuram. So far as the conviction and Sentence of appellant No. 1 Nanuram. s/o Bhanwarlal are concerned, the same do not call for any interference, and the same are affirmed. (See 1976 Cri LJ 239 (All) and AIR 1975 SC 1506 : (1975 Cri LJ 1320)).
20. On the question of sentence to appellant No. 2 Meharban Singh, learned Counsel for the appellants has submitted that the appellant, is facing this prosecution along with his brothers who are the co-accused in the case. He is labourer by occupation and comes from Scheduled Caste community. At present he is aged about 38 years having liability to maintain his old mother, father, wife and children. He has rid criminal antecedent. He remained on bail during the course of trial and also during pendency of this appeal and during this period, there is no complaint whatsoever against him. Therefore, keeping in view the aforesaid circumstances, he may be sentenced to the period already undergone. This prayer of the learned Counsel appears to be just and reasonable.
21. Ex-consequent, this appeal is allowed in part. The conviction and sentences of the appellant No. 1 Nanuram for the offence punishable under Sections 302 and 323/34, Indian Penal Code are hereby upheld. The conviction and sentence of the appellant No. 2 Meharban Singh for the offence punishable under Section 302/34 are hereby set aside. Instead, he is convicted under Section 326/34, Indian Penal Code and for the offence under Sections 326/34 and 323, Indian Penal Code, he is sentenced to the period already undergone. The conviction and sentences of appellant No. 1 Nanuram on both counts shall run concurrently. Appellant Meharban remained inside jail for 3 months and 24 days.
22. Let a copy of this judgment be sent along with the record of the trial Court to that Court, for compliance. The bail bonds of appellant No. 2 Meharban Singh shall stand discharged. The jail authorities be also informed about the result of the appeal.