Madhya Pradesh High Court
Golu Raikwar And Ors. vs The State Of M.P on 26 September, 2012
Author: Rakesh Saksena
Bench: T.K. Kaushal, Rakesh Saksena
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No.1797/2004
1. Golu Raikwar, s/o Shri Sunderlal
Raikwar, aged about 18 years,
Student, r/o New Gokalpur, Ranjhi,
Jabalpur.
2. Bhura @ Anil, s/o Shri Sunderlal
Raikwar, aged about 18 years,
Student, R/o New Gokulpur, Ranjhi.
Versus
The State of Madhya Pradesh through
Police Station Ranjhi, district Jabalpur.
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For the Appellants: Shri R.K. Shukla, Advocate.
For the Respondent: Shri Amit Pandey, Panel Lawyer.
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PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE T.K. KAUSHAL
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Date of hearing: 20/09/2012
Date of Judgment: 26/09/2012
JUDGMENT
Per: Rakesh Saksena, J.
1. Appellants have filed this appeal against the judgment dated 11.10.2004, passed by Special Sessions Judge, Jabalpur, in Sessions Trial No.778/2000, convicting the appellants under Section 302 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs.1000/- each. In default of payment of fine, one month's simple imprisonment to each.
2. In short, the prosecution case is that on 15.8.2000, at about 3.30 pm, when Kallu Choudhary (PW-1) and his uncle Hari (deceased) were going to eat betel, on way four accused persons viz. Bhura, Golu, Gabbar and Bedilal met them. They were armed with weapons. Accused Bhura hurled a country bomb 2 at them. On its explosion, they fell down. In the meanwhile, Bhura dealt a blow of sword to Kallu. Other accused also assaulted him with their weapons. For a short while he became senseless, but, as soon as he regained the sense, he ran away and went to Ram Niwas, the brother of Hari, and came back with him at the spot. Hari was lying at the spot soiled in the blood. Since he was alive, they carried him to Victoria Hospital, Jabalpur where he was declared dead. On some telephonic information police had also reached at the spot, therefore a Dehati Nalishi (Ex.P/1) was lodged by Kallu (PW-1) in the hospital. Offence under Section 302/34 of the Indian Penal Code, Section 3/5 of Explosive Act and Section 25/27 of the Arms Act was registered against the aforesaid accused persons.
3. Dead body of Hari was sent for postmortem examination. Dr. Ashok Kumar Jain (PW-6), Assistant Surgeon of the Medical College, Jabalpur conducted postmortem examination of the body and found six injuries on it.
4. After arrest of accused persons and further requisite investigation charge sheet against accused persons was filed in the court of Judicial Magistrate First Class, Jabalpur. The case was then committed for trial.
5. Learned trial judge framed charges under Section 302 of the Indian Penal Code and Section 3(2)(v) of the Scheduled Caste/Scheduled Tribe (Prevention of Atrocities) Act against the accused persons. Accused persons abjured their guilt and pleaded false implication. According to them, they were not present at the spot and were falsely implicated due to enmity because nephew of deceased used to tease sister of accused Gabbar. Deceased himself was an infamous criminal having enmity with many persons, he might have been killed by some other enemy.
6. Learned court below, after trial and upon appreciation of evidence adduced in the case, held the appellants guilty and convicted and sentenced 3 them as aforesaid by the impugned judgment. Learned trial judge, however, finding the evidence insufficient against accused Puttu @ Ram Charan acquitted him. Accused Gabbar and Bedilal are reported to be absconding since 20.2.2004.
7. Aggrieved by their conviction appellants have filed this appeal.
8. Learned counsel for the appellants submitted that the learned trial judge has misappreciated the evidence on record. Though he disbelieved the evidence of eyewitnesses Mihilal (PW-2) and Ram Niwas (PW-3) but he erred in not holding another eyewitness Kallu (PW-1) unreliable. The evidence of sole eyewitness was discrepant and contradictory. The evidence on record was not enough to hold appellants guilty. On the other hand, learned counsel for the State submitted that the evidence of Kallu was reliable. The learned trial judge committed no error in holding the appellants guilty. He supported the impugned judgment and the finding of conviction recorded by the trial court.
9. It has not been disputed that deceased died of homicidal death. Kallu (PW-1), Mihilal (PW-2) and Ram Niwas (PW-3) categorically stated that deceased suffered injuries and died in the hospital. Kallu (PW-1) lodged Dehati Nalishi (Ex.P/1) stating that deceased received injuries at the hands of accused persons. Sub Inspector R.B. Soni (PW-10) stated that on an anonymous report on telephone he came to know that there had been a quarrel in Gokalpur. When he went there, he found deceased being taken to hospital in an auto by his family members. At that time deceased was alive. However, when he alongwith deceased went to hospital, doctor declared him dead. He, on the information given by Kallu (PW-1), recorded Dehati Nalishi (Ex.P/1) and also Murg report (Ex.P/2). In Victoria Hospital, he conducted inquest and recorded memorandum (Ex.P/3) and sent the dead body to medical college for postmortem examination. He also sent injured Kallu for 4 medical examination. On postmortem examination, Dr. Ashok Kumar Jain (PW-6) found following injuries on the body of deceased:
"1. Incised wound 3" x 1/2" muscle deep on right cheek.
2. Incised wound 4" x 1/2" x bone deep on left cheek extending up to ear. The pinna of the ear was cut.
3. Incised wound on right knee joint posteriorly to lateral aspect. Joint disarticulated. Patella hanging with the help of tendon. Vessels, nerves and other soft tissues severed.
4. Incised wound 3" x 3/4" x bone deep over occipital region obliquely placed. Clotted blood matting the skull hair.
5. Swelling of blue colour on the right shoulder on the back side 6" in length.
6. Linear abrasion over left side of chest lateral aspect 4" in length, bluish in colour.
Injuries No. 1,2,3 and 4 were caused by hard and sharp object. Injuries No.5 and 6 might have been caused by hard and blunt object. All the injuries were ante mortem in nature and were sufficient to cause death. In the opinion of Dr. Jain, cause of death was excessive haemorrhage from Injury No.3. The death of deceased was homicidal.
From the above evidence, it stood amply established that the deceased died of homicidal death.
10. Now the question is whether appellants caused the death of deceased? Though prosecution examined three eyewitnesses in the case, but learned trial judge found the evidence of Mihilal (PW-2) and Ram Niwas (PW-3) not reliable. The evidence of Mihilal (PW-2) was disbelieved on the ground that after witnessing the occurrence he left Jabalpur and went to Sagar and contacted police only on 25.8.2000 i.e. after 10 days. Investigating Officer M.T. Beg (PW-8) could not say as to when Mihilal came to police station on 25.8.2000 and that the statement of this witness was not recorded by him. As far as the evidence of Ram Niwas (PW-3), the brother of deceased, is concerned, he stated that Kallu came and informed him that accused persons were assaulting 5 his brother. When he alongwith Kallu went to spot, he saw all the four accused persons assaulting Hari with sword, Kankur and Gupti. Looking at him, accused persons ran away and he carried Hari to Victoria Hospital. In the cross-examination, this witness admitted that after arranging for an auto when he went to spot, he found Hari lying in pool of blood moaning. Though people were passing through from the way, but no one was seen surrounding Hari. While he was shifting Hari to hospital, police personnel reached there and asked him to take Hari to hospital. Since this witness admitted in the cross- examination that he only saw deceased lying at the spot, his whole of the evidence was disbelieved.
11. The next eyewitness is Kallu Choudhary (PW-1). He also suffered injuries in the incident since at the time of occurrence he was with the deceased. According to him, at about 3.30 pm, he and deceased were going to eat betels. On way, accused Bhura, Bedilal, Golu and Gabbar came from the front side and Bhura pelted country bomb at them. Though they did not receive injury by the bomb, but they fell down. Bhura inflicted a blow of sword causing injury over his left eye. for a few seconds, he lost his consciousness, but, when he opened his eyes, he saw accused persons assaulting deceased with sword, Gupti and Kankur (a sharp pointed weapon). He ran away and informed Ram Niwas about the occurrence. Ram Niwas and other members of the family of the deceased came at the spot. When they were at some distance, they saw accused persons assaulting deceased, but, looking at them, all the accused ran away. Deceased was soiled in blood and was moaning. They carried deceased in an auto to Victoria Hospital, but he was declared dead. Since police had reached there, a Dehati Nalishi (Ex.P/1) was recorded on his information.
12. It is true that in Dehati Nalishi (Ex.P/1) Kallu (PW-1) did not specifically 6 say that before running away from the spot he opened his eyes and saw accused persons assaulting deceased and that as soon as he alongwith Ram Niwas returned back to spot, he saw accused persons assaulting deceased and further that looking at them accused persons ran away, but this aspect of his evidence was considered in great detail by the learned trial judge. It was observed by the learned trial judge that Dehati Nalishi (Ex.P/1) and the police statement (Ex.D/1) were almost similar. This was negligence on the part of the investigating officer to not to have queried from the witness about the details of occurrence. Investigating officer merely discharged his formality, but, still the evidence of Kallu (PW-1), as an eyewitness, inspired confidence and seemed trustworthy because he also suffered injuries in the same incident. Though, the presence of doctor who examined the injuries of Kallu (PW-1), could not be secured despite efforts, but it was revealed from the requisition (Ex.P/29) issued by the investigating officer for the medico legal examination of this witness that he had suffered injuries in the same incident. Statement of PW-1 that he immediately went to the brother of deceased viz. Ram Niwas (PW-3) and informed him about the occurrence naming the accused persons and came back with him to spot appears natural. Even if the evidence of Ram Niwas (PW-3) has not been found trustworthy by the trial court as an eyewitness of the occurrence, yet he furnished corroboration to the evidence of PW-1 by saying that immediately after the occurrence he came to him and informed that all the four accused persons were assaulting deceased. No doubt Kallu (PW-1) did not disclose in Dehati Nalishi (Ex.P/1) and police Statement (Ex.D/1) that when he ran away from the spot he saw accused persons assaulting deceased, but his presence at the spot with the deceased could not be doubted.
13. From the evidence of Kallu (PW-1) it stood proved that while he was 7 with deceased, accused met them, Bhura pelted country bomb at them and also assaulted them with sword and that immediately he ran away from the spot leaving behind deceased. It is possible that deceased might have also run away from the spot, but ultimately fell down. The evidence of Kallu does not seem inconsistent to the evidence of Surendra Yadav (DW-1) who stated that he saw deceased running and falling near the floor mill and that he did not see anybody with him. In these circumstances, in our opinion, the inference that accused persons caused injuries to deceased with their weapons is inescapable. From the evidence of investigating officer (PW-8) it is revealed that he, from the spot, seized remains of the country bomb vide seizure memo Ex.P/12. His evidence stood corroborated by the FSL report wherein it was opined that the said remains were of a 'Hathgola' containing potassium chlorate and arsenic sulphide.
14. The evidence of Kallu (PW-1) stood corroborated by Dehati Nalishi (Ex.P/1) lodged by him immediately after the occurrence and also by the general diary reports (Ex.P/30 and P/31). Sub Inspector R.B. Soni (PW-10) deposed that he received an anonymous information on telephone that there had been a quarrel in Gokalpur. He immediately rushed to the spot and found deceased being taken to hospital for treatment in an auto. He deposed that eyewitness Kallu gave information about the incident on the basis of which he recorded Dehati Nalishi (Ex.P/1). He also saw injuries on the body of Kallu for the examination of which he issued requisition (Ex.P/29).
15. After closely scanning and analyzing the evidence of Kallu (PW-1) we find him a wholly reliable and trustworthy witness. His evidence stood further supported from the evidence of Dr. Ashok Kumar Jain (PW-6) who found injuries on the body of deceased caused by sharp edged weapons. Thus, by the prosecution evidence, in our opinion, it stood established that appellants 8 caused injuries to deceased with sharp edged weapons which resulted into his death.
16. Learned counsel for the appellants next submitted that from the evidence of Dr. Ashok Kumar Jain (PW-6) it is apparent that the cause of death of deceased was excessive haemorrhage from the injury No.3, which was an incised wound on right knee and had disarticulated patella and cut vessels and nerves of the leg. Other injuries were not of such nature which could have resulted into death. They were not even grievous or fatal in nature.
17. On perusal of the evidence of Dr. Ashok Kumar Jain (PW-6) it seems that injuries No.1 and 2, which were caused on right and left cheeks of deceased by sharp edged weapons, were not grievous. Similarly, injury No.4, which was an incised would on the occipital region of the skull was bone deep. Though there was bleeding from it, but the bone was not found cut. Injuries No.5 and 6 were respectively swelling and abrasions on shoulder and chest. No underneath organ was found damaged. No doubt Dr. Jain stated that injuries found on the body of deceased were sufficient to cause his death, but he did not mention this fact in the postmortem report (Ex.P/10). In Ex.P/10 as well as in court he specifically stated that the cause of death of deceased was excessive haemorrhage from the injury No.3 which was on the knee.
18. In view of the above medical evidence, in our opinion, it cannot be held established with certainty that appellants intended to commit murder of the deceased, but, since they caused number of injuries by sharp edged weapons to deceased and the injury No.3 proved fatal, it can be held that appellants assaulted deceased with an intention of causing such bodily injuries to him as were likely to cause his death making them liable to be punished under Section 304-I of the Indian Penal Code.
19. For the reasons stated hereinabove, the conviction of appellants under 9 Section 302 of the Indian Penal Code is altered to one under Section 304-I of the Indian Penal Code and they are sentenced to rigorous imprisonment for 10 years.
20. Subject to modification/alteration as indicated hereinabove, this appeal is dismissed.
(RAKESH SAKSENA) (T.K. KAUSHAL)
JUDGE JUDGE
shukla
10
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.1797/2004
Golu Raikwar & another
vs.
The State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/09/2012
Hon'ble Shri Justice T.K. Kaushal
JUDGE
__/09/2012
POST FOR /09/2012
(Rakesh Saksena)
Judge
___/09/2012