Madhya Pradesh High Court
Gyansingh @ Gyanchand vs The State Of Madhya Pradesh on 28 March, 2019
Author: Virender Singh
Bench: Virender Singh
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE
CRA No.7871/2018
1
Division Bench: Hon'ble Shri Justice S.C Sharma and
Hon'ble Shri Justice Virender Singh
Criminal Appeal No.7871/2018
Gyan Singh @ Gyanchand
Lalu @ Lalsingh
Vs.
State of Madhya Pradesh
Shri R.R. Trivedi, learned counsel for the appellant.
Shri A. Tugnawat, learned counsel for the respondent/
State.
Whether approved for reporting: Yes/No
JUDGMENT
(Delivered on 28/03/2019) Per : Virender Singh, J. :
With consent of the parties, heard finally.
1. The appellants have preferred this appeal against judgment and order dated 13.08.2018 passed in Sessions Trial No.124/2016 by First Additional Session Judge, Dr. Ambedkar Nagar, District-
Indore, whereby the learned judge has held them guilty for the offence under section 302/34 of the IPC and awarded them life imprisonment with fine of Rs.1,000/- and in default of payment of fine further to undergo 6 months RI.
2. The prosecution has approached the learned Trial Court with a case that on 03.11.2015 at about 7-8:00 in the night; when the deceased was coming back home from Maanpur and was passing by the house of the appellants, they started abusing him as to why he is using that path, and started beating him by kicks and fists and when he fell down, Gyanchand clamped his throat.
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BENCH AT INDORE CRA No.7871/2018 2 Son Vinod, who was tilling land by tractor with his brother Laxman close to the place, rushed to the spot and made a clamour. Brother-in-law of the appellants Pappu saved him and took to his house, where he was kept for next 24 hours and was given traditional treatment and was thereafter taken to the Prashanti Hospital, Mhow. After some treatment, he was referred to Community Health Center (CHC), Manpur, who further referred him to the MY Hospital, Indore, where he died during treatment on 06.11.2015.
3. Before going to CHC, Maanpur, Vinod informed the police. The police registered crime no.362/2015 under section 294, 323 and 506/34 of the IPC. After the death, the police added Section 302 and also registered Merg no.17/2015 (Ex.P/12), sent the dead body for post-mortem (Ex.P/11), obtained post-mortem report Ex.P/1, visited the spot and prepared spot map Ex.P/10, arrested the appellants (Ex.P/13 & 14), seized Viscera and clothes of the deceased, sent them to FSL for chemical examination (Ex.P/15-
17), recorded statements of the witnesses.
4. In the post-mortem, it was opined that the death was due to cardio respiratory failure. Evidence of hypoxic brain injury was fount. It is further observed that evidence of crescentic shaped nail marks were present on anterior and anterior lateral part of the neck. The doctor opined that the death was a repercussion of attempted throttling and its complications. After completing the investigation, the police filed charge-sheet under section 302, 323 and 506/34 of the IPC.
5. The appellants were charged under section 294 and 302 in alternate 302/34 of the IPC. They abjured their guilt. After the trial, they are acquitted from the charge under section 294 of the HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 3 IPC and convicted under section 302/34 of the IPC and sentenced as stated in para no.1 above.
6. The appellant have preferred this appeal on the grounds that the judgment and order of the learned Trial court is contrary to the law and facts available on record. The judgment is contrary to the settled principles of law. Statements of all three doctors produced by the prosecution namely Dr. Sunil Jaiswal of MY Hospital, Indore (PW-6), Dr. Prakhar Agrawal of Prashanti Hospital, Mhow (PW-7) and Dr. Madhukar Shukla of CHC, Manpur (PW-
1) are contrary to each other. Dr. Agrawal, who examined the deceased first, did not notice any external injury to the deceased. Dr. Shukla has admitted in para no.7 of his cross-examination that no external injury on the head of the deceased was noticed by him. He did not deny that the injuries might have been caused due to fall on the hard surface. He has further admitted that the symptoms and ailments observed by him may be due to sudden increase in blood pressure. Condition of brain as observed by him may be due to this sudden rise in blood pressure and it is quite possible that the condition of brain of the deceased as observed by him may be due to sudden paralytic attack. All the prosecution witnesses are interested and are inimical towards the appellants. The learned Trial Court has erred in relying on such interested witnesses or such contradictory medical evidence. There is delay in filing the FIR and delay is not explained. Therefore, the appellants are entitled for acquittal.
7. The learned public prosecutor has opposed the prayer.
8. In the present case, the prosecution has come forward with a case that the incident took place on 03.11.2015 at about 7/8:00 in the night. Admittedly, the deceased was not taken to any HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 4 hospital in the night even when, according to his son Vinod PW/2, he had sustained serious injuries on head and was unconscious. He was not even taken to the hospital for next 24 hours. Even after 24 hours, the kins of the deceased chose to take him to the Prashanti Hospital, Mhow situated about 15 Kms away from the village of the deceased, instead of taking him to Community Health Center (CHC) situated just 4-5 kms away from their village. This shows that the intention of the complainants was to provide better treatment and not to approach the police which usually happens in the case of commission of some crime.
9. Dr. Pawar, who first examined the deceased, is not produced before the trial Court.
10. Dr. Agrawal, who examined the deceased at Prashanti Hospital, has admitted that it does not reflect from the case-sheet Ex.P/8&9 that at the time of admission, any information regarding cause of injury was given to the treating doctor.
11. The case-sheet of the deceased shows that at the time when he was brought to the Prashanti Hospital, he was drunk. The doctors did not rule out the possibility of sustaining injuries due to fall on the hard surface or due to sudden rise in blood pressure or due to sudden paralytic attack.
12. Dr. Shukla has stated that brother Bhurkhilal had brought the deceased to the CHC and he revealed before him that the deceased was feeling weakness on the right side of body since last two days. He was immediately provided treatment. Treating Doctors were of the opinion that the symptoms observed were indicating that the patient was suffering from paralytic attack and HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 5 on the same line his treatment was started. His treatment in hospital is as under:-
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BENCH AT INDORE CRA No.7871/2018 6 HIGH COURT OF MADHYA PRADESH:
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BENCH AT INDORE CRA No.7871/2018 8 HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 9 HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 10 HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 11 HIGH COURT OF MADHYA PRADESH:
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13. According to Dr. Prakhar Agrawal PW/7, considering the condition of the patient, it was felt that there may be a need of ventilator and this facility was not available at Prashanti Hospital, Mhow, therefore, kins of the patient were advised to take him to some other hospital where such facility was available. The deceased was discharged from the hospital on 05.11.2015 at 11:00 PM. This is apposite to mention here that till the time of HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 13 discharge of the deceased from Prashanti Hospital, there was nothing to show that the deceased had sustained the alleged injuries in any scuffle or fight or by any external force used by the appellants. Rather, doctors were suspecting that he had suffered a paralytic attack which laid to the patient in the condition observed by them. Thus, it was not found a Medico Legal Case (MLC) and this was the reason that the doctors did not inform the Police. It shows that at the first available occasion, no allegation of thrashing or throttling was made against the appellants and this makes the lateral or subsequent allegations suspicious.
14. One more important thing to note here is that in the complaint, the kins of the deceased revealed before the doctors of the Prashanti Hospital that the deceased was having weakness on the right side of the body since last two days. The deceased was brought to the Prashanti Hospital on 04.11.2015 at 06:00 PM. This shows that since 02.11.2015, the condition of the deceased was not well, while, as per the allegation, the appellants beat the deceased or caused him injuries or throttled him on 03.11.2015. This also makes the allegation of the prosecution doubtful.
15. The story of scuffle/bashing and thrashing has first come in the air when after getting discharged from the Prashanti Hospital on 6.11.2015 at 11.00 PM, the deceased was being taken to the another hospital from Mhow to CHC Manpur. During this journey son of the deceased Vinod first went to the Police Station Manpur and lodged the FIR Ex-P/2. This FIR reflects that intimation was received at the police station on 6.11.2015 at 1.00 A.M. The police registered the case under Section 294, 323 and 506/34 of the IPC, thereafter the deceased was sent to the CHC HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 14 Manpur where at about 1:20 AM he was examined by Dr. Madhukar Shukla PW-1. Thus, there is delay of 3 days in filing the FIR and this delay is not explained by the prosecution. This delay coupled with non discloser of the incident at the first occasion before the doctors of the Prashanti Hospital further strengthens the doubts about genuineness of the allegation made by the complainant later on.
16. Though it is mentioned in the FIR that information was received at 1:00 AM on 06.11.2015 and the case was registered under Sections 294,323,506/34 of the IPC but the FIR Ex.P/2 shows that it was registered at 4:39 A.M., which means that the information was received and registered after examination of the deceased by Dr. Madhukar Shukla at CHC, Maanpur at 1:20 A.M. No explanation is given as to why even after receiving the intimation of commission of cognizable offence, the FIR was not registered then and there. It creates a doubt that this is an ante- timed document. The deceased was first taken to the CHC, Maanpur from the Prashanti Hospital and where a story was concocted and narrated before the doctor, who mentioned this story in the MLC report Ex.P/1 and thereafter the complainants approached the police and the police mentioned the time of receiving information prior to the time of MLC to show that the case was registered first and then the injured was sent to the hospital. This shows that the complainants have not acted in all fairness and the police was also not very fair in dealing with the crime.
17. One thing is also important to notice that at CHC, Maanpur, Dr. Shukla noted in the MLC report that "H/o Assault to head & throttling Wednesday morning during fight of Sakharam & Gyan HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 15 Singh. History given by Bherusingh brother." Here the name of second accused Lalu @ Lalsingh is missing in this history, but it is very well mentioned in the FIR. No reason is assigned by the prosecution as to why the name of Lalu was not disclosed before the doctor. This is an important lacuna in the prosecution case and this shows that the story of fight, which was first concocted after discharge of the deceased from the Prashanti Hospital due to his critical condition with advice to take him to some big hospital to Indore, was further improved at the time of filing of the FIR and that the addition of name of Lalsingh is an afterthought action and therefore, cannot be relied upon.
18. The story of the scrambling or bashing or throttling was first revealed on 06.11.2015 at 01:20 A.M, means intervening night of 5/6-11-2015, when after discharge of the deceased from the Prashanti Hospital, he was brought to the CHC, Manpur. Bhuresingh, who brought the deceased, revealed before Dr. Madhukar Shukla PW-1 that the deceased sustained injuries due to assault on the head and throttling in the morning of Wednesday. The deceased was brought to the CHC, Manpur on 6.11.2015 and that was Friday and in the year 2015, Wednesday was on 4.11.2015, which means that according to the prosecution the deceased sustained injuries on 4.11.2015, while the prosecution has come before the Trial Court with a story that the deceased sustained injuries in the scuffle took place in the evening at about 7-8:00 p.m. on 3.11.2015. This further increases the doubts aroused in the mind.
19. During his admission in Prashanti Hospital Mhow the deceased was advised for C.T. Scan. The C.T. Scan report is also available on record which is as under:-
HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 16
20. This C.T. Scan report does not reflect any signs of scuffle, bashing, trashing or throttling as claimed by the prosecution. Even no nail marks were noticed by any of the technician or the doctor during scanning. No external injury was noticed on the head as alleged by the son of the deceased and also by other witnesses. Dr. Prakhar Agrawal PW-7 of the Prashnti Hospital has HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 17 clearly admitted that at the time of observation, he had not noticed any external injury on the body of the deceased. He has further stated that at the time of admission, injuries or reasons for unwellness of the deceased were not informed by his attendants. Even in his police statement he has clearly stated that kins of the deceased have never revealed that the deceased had sustained any injury in some bashing or thrashing.
21. It is further important to note that C.T. Scan report shows that damage in the right side of the brain only was observed by the experts, while in the case of throttling, it normally does not happen, because if due to throttling main blood vessels are compressed, then it will damage the entire brain and not one part, particularly the right part of the brain. Dr. Prakhar Agrawal PW-7 was of the opinion that possibility cannot be ruled out that damage to the brain observed in the C.T. Scan may be due to sudden increase in the blood pressure or some paralytic attack.
22. Dr. Jaiswal, who performed autopsy, has stated that there were crescentic shaped nail marks on the front and frontolateral part of the neck and three contusions on left parietal, occipital, cerebellum parts of the skull of the deceased. Dr. Shukla, who examined the deceased after filing of the FIR, has stated that there were two abrasions on both side of front part of the neck, but according to him, these marks were having brownish black scales and were two days old. But Dr. Agrawal, who examined and treated the deceased first or prior to Dr. Jaiswal or Dr. Shukla, did not find any such nail marks or contusions. They both (Dr. Agrawal & Dr. Shukla) have admitted that at the time of examination of the deceased, they did not notice any external HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 18 injury caused to the deceased. In CT Scan also no such injury as mentioned by Dr. Jaiswal was found.
23. Dr. Jaiswal has opined that the death was result of attempt of throttling and the complication arisen out of such attempt, but as per Dr. Agrawal and Dr. Shukla the symptoms, ailment and condition of brain observed by them may be due to sudden increase in blood pressure or may be due to sudden paralytic attack.
24. In the last we would like to mention treatment undergone at or treatment protocol of the deceased by the M.Y. Hospital, Indore, which reflects that the deceased was only treated for Ceribro Vesicular Accident (CVA). Entire treatment prescriptions do not reflect that he was ever treated for the complication arising out of throttling or any injury caused on the head due to collusion with the hard surface or stoned floor or by forcible push on the hard floor as alleged or claimed by the prosecution witnesses.
25. Now we will examine ocular evidences produced by the prosecution before the trial Court.
26. The prosecution has examined three prime witnesses namely Vinod PW-2, Laxman PW-3 and Tarwar Singh PW-4 all sons of the deceased. Vinod has stated that at the time of the incident he was with his brother Laxman and they both were plying tractor. He saw the appellants beating his father and they pushed him on the ground, who fell with head towards the floor and they also throttled his neck. They dragged him and threw him in front of his house. When he tried to intervene, they (appellants) threatened him to kill. He got scared and did not disclose the incident at home till the next morning. Next morning his uncle (Mama) took his father to Mhow Hospital by Bolero HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 19 Jeep and in the hospital he revealed the incident to his uncle Bhuresingh. It is to be noticed here that the deceased was taken to the Prashanti Hospital on 4.11.2015 at 6.00 PM and not in the morning but even we take it that in the morning Vinod revealed the crime of the appellants before his uncle Bhuresingh even then they did not approach the police or lodged the report on the same day i.e 4.11.2015 but waited for the next two days. Statement of Vinod that he got scared due to threat of the appellants is unnatural and also not believable as both the complainant and the appellants belongs to the same family and are residents of the same village. They both have common relatives in the village and there is nothing on record to show that how he came out from the fear in the next morning.
27. Another son Laxman PW/3 has reiterated the facts stated by Vinod, but he has stated that at the time of the incident, Vinod was not with him on the tractor but was sitting at the house of Gyansingh (appellant). In para no.3 of his examination-in-chief, he has stated that his uncle Bhuresingh was also present on the spot at the time of the incident. This makes the statement of Vinod that next day in the hospital he revealed the incident before Bhuresingh false. Further Laxman has stated that in the night itself, his father was taken to the MY Hospital, Indore where he was treated. Though, later when the learned public prosecutor asked some questions with the permission of the Court, he has stated that after keeping his father a day, he was taken to the Prashanti Hospital on the next day.
28. Third son Tarwar Singh PW/4 claimed that at the time of incident, he was at home. His brother informed him about the incident. He immediately rushed to the spot. Picked up his father HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 20 and took him home and next day took him to a private hospital of Basi, thereafter, to Madhya Bharat Hospital, Mhow then to Manpur Hospital and thereafter, to MY Hospital, Indore, where he died. Means this witness has claimed that he had always accompanied his father, whenever and wherever he was taken. But even after knowing that the appellants have beaten his father or have throttled him, he also never tried to lodge the report or approach the police, while he has admitted that the police station is hardly 5 Kms away from his village. The inordinate delay in lodging the FIR makes his statement unbelievable. This statement of Tarwarsingh also belies the claim of his brothers Vinod and Laxman that due to threat given by the appellants, they got scared and did not disclose the incident before anyone.
29. According to Vinod and Laxman, the cause of incident was use of passage passing through the house of the appellants but according to Tarwarsingh the cause was that the deceased intervened in the dispute between the appellants and tried to exhort them not to fight with each other.
30. Except all the three sons of the deceased, no other independent witness is examined by the prosecution and all this three sons have admitted that both the parties belong to the same family and there was a dispute between both of them on account of some loan taken by the deceased for purchasing a tractor and for repayment of the installments of this loan. In such a situation absence of independent witness raises doubt in the mind and this doubt coupled with the unexplained delay in revealing the incident before the police or lodging the report within a reasonable time along with the fact that the alleged incident was never disclosed before the doctor before whom the deceased was HIGH COURT OF MADHYA PRADESH:
BENCH AT INDORE CRA No.7871/2018 21 first taken and that the deceased was first kept in the house for next 24 hours and thereafter instead of going to the police station he was taken to a private Hospital situated at a considerable distance, instead of taking him to a Government Hospital situated nearby giving priority to the private Hospital and also the fact that the doctor who treated the deceased first neither informed nor noticed any injury and no injury marks were noticed at the time of CT Scan are sufficient to shatter the prosecution case. The entire evidence produced by the prosecution does not inspire confidence. We have certain doubts regarding truthfulness of the prosecution case and certainly benefit of such doubt have to be given to the appellants. The learned Trial Court has failed to appreciate all these discrepancies, shortcomings and contradictions appeared in the statements of the witnesses which goes to the roots or very foundation of the prosecution case, therefore, the judgment and order passed by the learned Trial Court is not sustainable in the eyes of law.
31. In the result, we hold that the appeal deserves to be and is hereby allowed. Both the appellants are acquitted from the charges under Section 302/34 of IPC. They be set at liberty forthwith, if not required in any other case.
32. The order of the Trial Court regarding disposal of the case property is hereby confirmed.
33. All the IAs pending stands closed.
(S.C. Sharma) (Virender Singh)
Judge Judge
sourabh
Digitally signed by
SOURABH YADAV
Date: 2019.04.16 12:37:00
+05'30'