Pahalwan Singh vs The State Of M.P. on 27 January, 2018

[Cites 10, Cited by 16]

Madhya Pradesh High Court

Pahalwan Singh vs The State Of M.P. on 27 January, 2018

This Criminal Appeal has been filed by the appellants under Section 374 of Cr.P.C. being aggrieved by the judgment dated 1.2.2006 passed by the Court of 1 st Additional Sessions Judge, Shivpuri, MP, in Sessions Trial No.193/2005 convicting appellant No.1 under the provisions of Section 302 of IPC and appellants No.2 and 3 under Section 302/34 of IPC and sentencing them to suffer rigorous imprisonment for life and fine of Rs.5,000/- each and in default of payment of fine, further undergo six months RI. Appellants have also been convicted under the provisions of Section 323/34 of IPC and sentenced to six months RI.

2. Appellant No.1-Pahalwan was charged under the provisions of Sections 294, 302, 323/34 IPC and appellants No.2 and 3 under the provisions of Sections 302/34 and 323/34 of IPC alleging that on 5.5.2005 at about 4.30 pm at police Station, Indar, village Tarawali, appellant No.1 Pahalwan Singh with appellants No.2 and 3 Vishanbai and Vimlabai, in furtherance of common intention committed murder of Babusingh and caused injuries to Guddibai. Appellant No.1 was also charged of hurling abuses on deceased Babusingh and Guddibai. Another co- accused Harikumar son of Pahalwan Singh was since a juvenile, was tried separately before the juvenile Court.

3. As per the prosecution case, appellant No.1-Pawalwan Singh had given three blows with Barchchi in the chest and stomach of Babusingh, whereas Harikumar had hit on the leg of Babusingh. Appellant No.2 Vishanbai caught hold of the hands of deceased Babusingh and appellant No.3-Vimlabai hit the deceased with Lathi and as such they also conspired with appellant No.1-Pahalwan Singh to beat deceased Babusingh as a result of which Babusingh died on the spot. When wife of Babusingh, Guddibai tried to intervene, she was also beaten. The dispute had occurred on laying of roof though admittedly deceased and appellant No.1 were real brothers, and therefore, the deceased and the aggressors are related to each other inasmuch as Pahalwan Singh is the elder brother of deceased Babusingh and Vishan Bai is wife of Pahalwan Singh, whereas Vimla Bai is sister of Pahalwan Singh and Babusingh.

4. On oral report of Guddibai at Police Assistance Center, Khatora, Dehati Nalishi (Ex.P/17) was recorded, on the basis of which FIR (Ex.P/18) was registered at police Station, Indar, registering Crime No.40/2005 under the provisions of Sections 302, 294, 323/34 of IPC.

5. Dead-body of Babusingh was subjected to postmortem at Primary Health Center, Khatora, vide Ex.P/1 and MLC of Guddibai was also undertaken vide Ex.P/4 and spot map was prepared. Vide Ex.P/6 Pahalwan Singh was arrested, vide Ex.P/7 Vishal Bai was arrested and vide Ex.P/8 Vimla Bai was arrested. Vide Ex.P/10 seizure memo of Barchchi was prepared and vide Ex.P/11 seizure memo of Lathi was prepared. Police statements of Vijay Kumari and Guddi Bai were taken vide Ex.D/1, Ex.D/2 and Ex.D/3.

6. The charge-sheet was filed before the JMFC, Kolaras, from where matter was committed for sessions trial and was received by Sessions Court on 24.9.2005.

7. Appellant No.1 Pahalwan Singh was charged under the provisions of Sections 294, 302, 323/34 of IPC, whereas appellants No.2 and 3 Vishan Bai and and Vimla Bai were charged under the provisions of Sections 302/34, 323/34 of IPC. The accused abjured their guilt.

8. Prosecution examined as many as 11 witnesses namely 3 Dr.R.R.Mathur (PW-1), who had carried out postmortem of deceased Babusingh, Jayram (PW-2), who is the village Chokidar and witness to arrest memos Ex.P/6, Ex.P/7 and Ex.P/8, Vijay Kumari (PW-3) daughter of deceased Babusingh, Halke (PW-4) resident of the same locality in which incident had taken place and who had helped in lifting of the body of the deceased, Balu (PW-5) is the witness before whom Lash Panchayatnama (Ex.P/13) and Safina Form (Ex.P/14) were prepared, SI Avneet Sharma (PW-6), who had investigated the matter, Head Constable Janak Singh (PW-7), Guddi Bai (PW-8) wife of the deceased and eye-witness to the incident, Meharban Singh (PW-

9), Head Constable Mukut Pratap Singh (PW-10), and SI R.V.Sharma (PW-11). On the other hand, appellants had examined three witnesses, namely Amrinder Singh (DW-1), who had allegedly accepted application and affidavit from Guddi Bai (PW-8), Vardha Bai (DW-2) mother of appellants No.1 and 3, so also of the deceased, and Rajendra Prasad Agrawal (DW-3), Notary Advocate who had notarized the affidavit of Guddibai (Ex.D/7).

9. Learned counsel for the appellants submits that as far as appellant No.2-Vishanbai is concerned, she has been falsely implicated. The story of the prosecution is that she had caught hold of the hands of deceased Babusingh. The age of Babusingh was 32 years as per Ex.P/1, whereas that of Vishan Bai is of 45 years, therefore, it was not possible for a 45 years old lady to hold hands of a youth of 32 years and in any case Guddibai (PW-8) has admitted in her case diary statements Ex.D/2 and Ex.D/3 that Vishan Bai, Vimla Bai and Harikumar had reached the spot when Pahalwan Singh was abusing her husband, therefore, learned counsel submits that involvement of Vishan Bai and her conviction under Section 302/34 of IPC is not made out.

10. Similarly, learned counsel for the appellants submits that as far as appellant No.3-Vimla Bai is concerned, Guddibai in her case diary statement (Ex.D/2) has mentioned that Vimla Bai was holding a Lathi. Similar statement has been given by Vijay Kumari (PW-3) in Ex.D/1. Later on, in her court statement Vijay Kumari (PW-3) has mentioned that Vimla Bai had hit Guddi Bai with an axe. Similarly, Guddibai (PW-8) in para 3 of her chief examination has alleged that Vimla Bai had hit her with an axe. MLC report 4 (Ex.P/4) of Guddibai reveals that she had suffered two injuries namely one lacerated wound with bleeding measuring 3 cm x 1 cm x ½ cm at left frontal part of head caused by hard and blunt object and a red bruise measuring 4 cm x 2 cm cylindrical at left mid outer part caused by hard and blunt object and vide Ex.P/5, which is a requisition for x-ray, Guddibai refused to undergo x-ray which has been noted from "B" to "B" part and contains signatures of Guddibai from "C" to "C" part. Thus, learned counsel submits that in fact Guddibai has tried to rope in Vimla Bai with some ulterior motive and neither the weapon attributed to her in the court statement was recovered nor the injuries mentioned in the MLC report (Ex.P/4) could have been caused by an axe, and therefore, prays for acquittal of both appellants No.2 and 3 on the ground that their conviction with the aid of Section 34 of IPC is not sustainable and deserves to be set aside.

11. Learned counsel for the appellants submits that even appellant No.1-Pahalwan Singh has been falsely implicated and submits that Meharban Singh (PW-9) has categorically deposed that Babusingh was abusing appellant No.1-Pahalwan Singh and was throwing stones on his gate which was the starting point of dispute and in the heat of moment under sudden and grave provocation Pahalwan Singh had hit Babusingh, therefore, Pahalwan Singh is also not liable to be convicted under Section 302 of IPC. He submits that Varda Bai (DW-2) has also deposed that Babusingh was under the influence of alcohol and was abusing the family members when Pahalwan Singh, who was at the house of Khawas playing cards, arrived when Babusingh threatened all the family members, and therefore, Pahalwan Singh counselled him that he (Babusingh) is unnecessarily abusing his mother and sister when Babusingh had hit Pahalwan Singh with a Barchchi which caused injury on the leg of Pahalwan Singh and thereafter Pahalwan Singh left the place of occurrence and in between Guddibai arrived there and started fighting with Babusingh. She further deposed that in fact Guddi Bai had snatched Barchchi and gave 3-4 blows to Babusingh and this incident was seen by Meharban Singh. Similarly, he has drawn attention to the evidence of Janak Singh (PW-7) to point out that counterfoil of FIR (Ex.P/18) was not sent to the concerned JMFC immediately and there is material addition in the FIR inasmuch as 5 words "Mari: are not mentioned in Dehati Nalish on the basis of which FIR (Ex.P/18) was recorded. He further submits that Pahalwan Singh has been falsely implicated. It is also submitted that in fact Vijay Kumari (PW-3) was not an eye-witness and further the directions of both the houses of Pahalwan Singh and Babusingh and their openings are different, therefore, the allegation that Pahalwan Singh had dragged Babusingh to his door is false. He has relied on the statement of Guddibai to buttress his claim, specifically para 15 to point out that she has denied the place of incident, and therefore, her story of Pahalwan Singh causing death of Babusingh is concocted and has been framed to save Guddibai who was in fact aggressor and had killed her husband.

12. Learned counsel for the appellants has placed reliance on the judgment of the Supreme Court in the case of Badruddin v. State of Uttar Pradesh as reported in AIR 1998 SC 3243 to point out that ratio of the case is that since there was no evidence of exhortation or that appellant assaulted witnesses to keep them away and facilitated killing of the deceased, thus, there was no direct evidence that the appellant and the others shared common intention to kill the deceased. He submits that in the case of Vimala Bai and Vishan Bai, there was no common intention, and therefore, appellants No.2 and 3 have been wrongly convicted under Section 302/34 of IPC. Learned counsel has also placed reliance on the judgment of the Supreme Court in the case of Mukati Prasad Rai Alias Mukti Rai and others vs. State of Bihar (Now Jharkhand) as reported in 2005 SCC (Cri) 69 wherein the Supreme Court has held that under the given facts when according to the prosecution, pursuant to a quarrel between the ladies, accused persons entered the house of deceased armed with Lathis and iron rod and on exhortation of one of the accused, inflicted injuries on deceased which resulted in his death, on a conspectus of various relevant features including the genesis and nature of the quarrel, absence of motive for taking the extreme step of killing the victim, short time gap within which the entire incident occurred pursuant to a petty quarrel among the women, nature of weapons carried by them and part played by the accused-appellants at the scene of offence, the appellants 6 cannot be said to have been prompted by common intention to kill or that they instigated their fellow accused to kill the deceased. Similarly, reliance has been placed on the judgment of the Supreme Court in the case of Manaji Kaluji Thakor and others Vs. State of Gujarat as reported in (2006) 1 SCC (Cri) 736 wherein the Supreme Court held that since the incident happened all of a sudden when three accused attacked the deceased with weapons, which in all probability were available in the house, when they saw him passing through the street causing fatal injury on head with a Dharia by second accused and first and third accused had given blows on the head causing only simple injuries, there was no common intention on the part of remaining two accused to cause death of the deceased. As such two accused/appellants were not responsible for offence of murder under Section 302/34 of IPC. They were liable for the acts committed by them, and therefore, were convicted under Section 324/34 of IPC and sentenced to one year RI.

13. Reliance has also been placed on the judgment of the Supreme Court in the case of Dhanna etc. v. State of M.P. as reported in AIR 1996 SC 2478 wherein the Supreme Court has held that it is open to the Court to take recourse to Section 34 of IPC if a finding that assailant concerned had a common intention with other accused is made out. It has been further held that if prosecution witness did not refer to any role played by the accused when he gave statement to police during investigation, accused cannot be convicted for murder on the basis of improvement made by said witness at trial. Learned counsel has also placed reliance on the judgment of the Supreme Court in the case of Bishu Sarkar and others v. State of West Bengal as reported in AIR 2017 SC 1729 wherein it has been held that when there is no evidence that co-accused caught hold of the deceased with intent to aid main accused and when co-accused had not dealt any blow to the deceased though participated in the scuffle, co-accused is entitled to benefit of doubt. Placing reliance on such judgments, learned counsel for the appellants submits that appellants No.2 and 3 are entitled to clean acquittal, whereas appellant No.1 is entitled to acquittal under Section 302 of IPC and at best he can be convicted under Section 304 Part I of IPC 7 inasmuch as there are several contradictions in the prosecution story inasmuch as Guddibai (PW-8) in her statement had deposed that police had visited the village where report was made, whereas Dehati Nalishi was reported at Police Assistance Center, Khatora, and therefore, there is a contradiction as to where Dehati Nalish was lodged and thus all the documents appear to be anti-dated so to frame appellant No.1.

14. Learned Public Prosecutor on the other hand submits that the judgment passed by the Sessions Court does not call for any interference and there was a planned conspiracy to eliminate Babusingh as can be seen from the chronology of events. He submits that Babusingh had sustained seven injuries as mentioned in postmortem report (Ex.P/1) which are quoted as under :-

"1. Abrasion red blue, 1x 1 cm, left wrist outer front.

2. Abrasion red blue 1x ½ cm, left forearm lower 1/3rd part outer.

3. Abrasion red blue 1 x 1 cm right back elbow.

4. Stab wound-No abrasion, contusion, bruise around the wound, margin inner side, 1 cm length vertical to leg right x ½ breadth x 6x1/2 in depth. Track Front to back directed right 1/3 right leg outer upper front of leg ellipse shape. No exist wound.

5. Stab wound elliptical shaped 1 cm length vertical to body at right side of trunk (chest) ½ cm breadth x 13 cm track depth right side of chest 1 x ½ x 13 cm. 3x1/2 cm away to sternum right 2 cm to nipple 5th 6th ribs intercostal part directed right to left side upto left side to heart area on track dissection right ventricle of heart penetrated to perforated wound, right ventricle pericardial sack fill with blood. No exit wound.

6. Stab wound 1 cm length vertical x ½ cm, Breath horizontal x 3 cm depth track to abdominal viscera, liver upper right lobe at right side of abdomen between 9, 10th ribs intercostal part directed right to left side slight upward. Abdominal viscera liver penetrated. No exit wound.

7. Stab wound (punctured incised) (1 x ½ x 3 cm) with peritoneal membrane part out from wound, 1 cm length vertical x ½ cm breadth x 13 Depth of track directed from right to left side of stomach at 11th-12th ribs intercostal part 9 cm away right to epigastric part of abdomen right side. No would of exit. (Right costal part) Stomach right punctured ½ x ½ cm."

Out of these seven injuries, there were four stab wounds which co-relate with Barchchi which has been recovered from Pahalwan 8 Singh vide Ex.P/10, therefore, he submits that as far as appellant No.1 is concerned, his conviction cannot be set aside and in fact Vardha Bai (DW-2) is a planted witness who under the socio- economic condition prevailing in India naturally had a soft corner towards his son appellant No.1 and has given evidence against his daughter-in-law Guddibai. He submits that Vardha Bai has admitted in her cross-examination that she had not lodged any report in regard to Guddibai causing any stab wounds to Babusingh as she has deposed in her examination-in-chief and she is also not an eye-witness to the incident.

15. Learned Public Prosecutor further submits that in the postmortem report (Ex.P/1) there is no mention of any smell of alcohol from the body of the deceased and reason of death has been shown to be syncope due to excessive internal and external haemorrhage and type of death has been shown to be homicidal within 18 hours. Dr. R.R.Mathur has been examined as PW-1 and there is no suggestion in his deposition that deceased was under

the influence of alcohol. In view of such deposition and when he has specifically mentioned in para 2 of his examination-in-chief that there was no smell from the body of the deceased, the story of Vardha Bai (DW-2) cannot be relied on to shift the burden from appellant No.1 to Guddibai (PW-8). Learned Public Prosecutor further submits that since appellant No.2 is wife of appellant No.1 and she had caught hold of the hands of the deceased which facilitated attack by appellant No.1 and appellant No.3 was wielding a Lathi, therefore, their conviction need to be maintained as there was a common intention and in furtherance of their common intention Babusingh has been killed.

16. It will be proper to appreciate the role attributed to each of the appellants and the evidence which has come on record against each one of them before any conclusion can be drawn about their guilt or innocence.

17. As far as appellants No.2 and 3 are concerned, in the light of the judgment rendered by the Supreme Court in the case of Bishu Sarkar (supra) if the provisions of Section 34 of IPC are appreciated, it is apparent that there was a heated moment on account of dispute due to laying of roof when Pahalwan Singh was abused by Babusingh or vice versa when appellants No.2 9 and 3 arrived at the scene, therefore, it cannot be said that they had any common intention. There is no evidence on record through which their common intention can be gathered. There is also substance in the argument of learned counsel for the appellants that Vishanbai at the age of 45 years could not have caught hold hands of Babusingh who was 32 years of age so to facilitate stabbing by Pahalwan Singh. There is also improvement in the statement of Guddibai (PW-8) and Vijay Kumari (PW-3) who changed the weapon of offence from Lathi to axe, and therefore, in the light of judgment rendered by the Supreme Court in the case of Dhanna (supra) also Vimla Bai cannot be convicted for murder. Similarly, since there is contradiction in the weapon of offence, she cannot be convicted even under Section 323/34 of IPC and also deserves clean acquittal both for alleged improvisation and lack of common intention, specially when appellant No.3 is sister of the deceased as well as appellant No.1 and there is no suggestion that she had any special affinity towards appellant No.1 at the cost of the deceased. Therefore, in the opinion of this Court, both appellants No.2 and 3, Vishanbai and Vimlabai have been wrongly convicted by the trial Court and they deserve to be acquitted.

18. As far as appellant No.1-Pahalwan Singh is concerned, minor aberrations in the prosecution story cannot be used to acquit Pahalwan Singh looking to the direct co-relation between the weapon used by him and the nature of injuries. In regard to Pahalwan Singh, evidence of Vijay Kumari (PW-3) and Guddi Bai (PW-8), who are the eye-witnesses to the incident, is consistent and there are no such material omission or contradiction which may give benefit to appellant No.1. Their statements in regard to appellant No.1 as have been recorded in the case diary are consistent with the court statements, and therefore, this Court is of the opinion that conviction of appellants No.1 does not call for any interference and deserves to be upheld.

19. Consequently, the appeal is party allowed. Conviction of appellants No.2 and 3- under Section 302/34 and 323/34 of IPC is set aside and they are acquitted. Amount of fine if deposited by them be refunded to them. They be released forthwith if not required in any other case. Their bail bonds are discharged as 10 they are already on bail vide order dated 20/09/2006. As far as appellant No.1-Pahalwan Singh, who is in jail, is concerned, his conviction and sentence under Sections 302 and 323/34 of IPC as passed by learned 1st Additional Sessions Judge, Shivpuri, in S.T.No.193/2005 is affirmed and appeal as far as it relates to appellant No.1 is dismissed.

                      (Vivek Agarwal)                       (G.S.Ahluwalia)
                         Judge                                 Judge
      ms/-

Digitally signed by MADHU
SOODAN PRASAD
Date: 2018.02.12 17:17:35
+05'30'

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