Madhya Pradesh High Court
Bhanu Yadav vs The State Of Madhya Pradesh on 19 August, 2019
Equivalent citations: AIRONLINE 2019 MP 924
Author: B. K. Shrivastava
Bench: B. K. Shrivastava
09HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Case No. CRA No.1997/2009
Parties Name Bhanu Yadav
vs.
State of MP
Bench Constituted Justice Sujoy Paul &
Justice B.K. Shrivastava
Judgment delivered by Justice B.K. Shrivastava
Whether approved for
reporting
Name of counsel for parties For Petitioner : Alok Tapikar, Amicus
Curiae.
For Respondents: Shri Saleem Rehman,
GA.
Law laid down -
Significant paragraph numbers -
(JUDGMENT)
19 .08.2019
As per: B.K. Shrivastava, J.
This criminal appeal has been preferred against the judgment dated 31.08.2009 passed by Special Judge, Shahdol in Special Case No. 71/2006. By the judgment impugned, the learned lower Court convicted the appellant Bhanu Yadav for the offence under Section 302 of IPC and sentenced him to undergo life imprisonment with the fine of Rs. 2,500/-, in default of payment of fine to undergo three months RI.
2. As per prosecution case, Jaymanti Bai and her daughter Laxmi Bai were working in their agriculture field. Jaymanti Bai was doing Nidai while her daughter Laxmi was grazing cattle in the agriculture field named as "Sarai Wala Khet". At that time, some cattle of Bardani Yadav entered in the agriculture field and Jaymanti Bai tried to remove that cattle. At this moment
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the accused Bhanu Yadav, who intentionally entered the cattle in that field, came there with the Lathi(stick). He attacked on the Jamvanti & Laxmi and both fell on the earth. Laxmi fled away from there but Jaymanti could not succeed and accused Bhanu caused various injuries to her. Some other villagers saw the incidence and tried to stop the accused but the accused also tried to assault upon them. Laxmi came to her house and told about the incident to her neighbour Goma and requested him to intimate her father. Then Goma went to Gram Kholkhapura and intimated Kallu about the incident with her wife. Thereafter, Kallu reached on the spot where Jaymanti was lying with serious injuries. She was alive but unable to speak. The daughter Laxmi narrated entire incident to her father Kallu. Thereafter, they took Jaymanti to admit in the hospital but she succumbed the injury near the Chabutra of Durga. Thereafter, Kallu reached to police station Pali, District Umariya and lodged the Marg report Ex.P-2 and FIR Ex. P-1.
3. The police registered the Marg No. 264/2006 under Section 174 of Cr.P.C. and Crime No. 264/2006 under Sections 302 of IPC and 3(2)(5) of SC/ST(Prevention of Atrocities) Act. The police reached on the spot and issued notice. Ex. P-3. Thereafter, in the presence of witnesses, the police prepared the inquest Panchnama Ex. P-4 and sent the dead body for postmortem with the application Ex. P-15. The police also prepared the spot map Ex. P-6. Seized the blood stains and simple soil from the spot and also seized the broken bangles, sleeper and umbrella by Ex. P-9. Statements of various witnesses were also recorded. The police arrested accused persons Bhanu and Kandhai. Upon the interrogation, they gave the information which was noted down in the memos under Section 27 of the Evidence Act Ex. P-6 and P-7. In furtherance to the aforesaid information, one Lathi was seized from the appellant Bhanu by Ex. P-8 and another Lathi was seized from accused Kandhai vby Ex. P-11. Police prepared the arrest memos Ex. P-13 and P-14. Police also prepared spot map Ex. P-18. Postmortem report Ex. P-16 was given by Dr. V.K. Jain and reported the death as homicidal and also sent clothes of deceased to the police station and the police seized the aforesaid clothes by Ex.P-12. All seized articles
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were sent for FSL by Ex. P-19. From there the report Ex. P-20 was also received. After investigation, the police filed challan No. 247/2006 under Section 302/34 of IPC and 3(2)(5) of SC/ST Act before the Court of CJM, Umaria on 09.09.2006. CJM registered the criminal case No. 1828/2006 and committed the case to the Court of Sessions on 13.10.2006. The case was received in the Special Court Damoh on 27.10.2006. Thereafter the Special case No. 71/2006 was registered. On 22.09.2007, the trial court framed charges under Sections 302/34 of IPC and 3(2)(5) of SC/ST Act against both the accused.
4. Both accused denied from charges and demanded for trial. Thereafter the prosecution examined 13 witnesses in support of its case. Defence did not examine any witness. After concluding the trial, the trial Court passed the impugned judgment on 31.08.2009 and acquitted the accused Kandhai for all offences. Appellant Bhanu was also acquitted from the other offences except Section 302 of IPC. The trial Court after hearing upon the sentence, passed the order of sentence as stated in para-1 of this judgment.
5. It is submitted by the Amicus Curiae that the trial Court passed the judgment against the facts and circumstances and the evidence produced before the Court. The accused has been falsely implicated in this case. Co- accused has been acquitted upon the same set of evidence, therefore, the present appellant was also entitled to get the acquittal. The statements of PW-1, PW-2, PW-3, PW-4 and PW-8 were not considered by the trial Court in proper way. The charge against the accused was not proved beyond the reasonable doubt but the trial Court committed mistake by convicting the appellant. It is also submitted that the incident was not preplanned. Therefore, appellant should not convicted for the offence under Section 302 of IPC. The matter comes under the purview of Section 304(2) of IPC. Therefore, it is submitted that the appeal be allowed and the appellant be acquitted from the aforesaid charges.
6. On the other side, counsel for the State has strongly opposed the appeal. It is submitted by the counsel that the prosecution proved its case
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beyond reasonable doubt. Reliable evidence was produced. The case was also supported by the medical evidence. Statements of PW-2, PW-3 and PW-9 clearly established the guilt of the accused. Co-accused was not acquitted upon the basis of the same set of evidence. Sufficient evidence available against the present appellant. Hence, he could not claim parity with the co-accused. The appeal having no substance and is liable to be dismissed.
7. Laxmi Bai (PW-2) is the daughter of the deceased and also eye witness in this case. The witness said that the incident took place on 19 August. Her father and brother had gone to Gram Kholkhapura for doing the work. The witness with her mother was in the agriculture field. She was grazing the cattle and her mother was doing the Nidai in the crop of Urad. The accused Bhanu and his wife were sitting in the agriculture field of the witness. Some cattle of accused entered in the agriculture field of the witness, then her mother tried to away them. The accused stopped the mother and attacked by the Lathi on the head. When the witness caught her mother and tried to came back towards the home then the accused also put Lathi upon the witness. She fell down, thereafter, the accused beat her mother by the help of Lathi. Mother was also lying on the earth and sustained various injuries on the head, hands and the other parts of the body. Witness Laxmi also said that she ran towards her house and narrated the entire incident to Goma and Goma had gone to Gram Kholkhapura for giving the information to the father of the witness. The witness again said that at about 05:00 p.m., mother was expired and the police prepared the spot map Ex. P-6. Therefore, it appears that the witness Laxmi supported the case of prosecution. She is an eye-witness who narrated the entire incident before the Court. The accused cross-examined the witness at length. She denied the previous enmity in para-7. No any substantive omission or contradiction is found in the entire cross-examination of the witness. No any indication is found for false implication of the accused. Therefore, it can be said that the trial Court has rightly believed upon the testimony of the witness PW-2.
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8. Satyavati(PW-3) said that she was in her own agriculture field adjoining to the field of deceased. The incident took place at about 04:00 p.m. . The witness heard sound and saw that the accused was beating the Jaymanti Bai. Witness also said that she did not reach near to Jaymanti Bai, but she reached to the filed of Chhotelal and narrated the entire story to Chhotelal. In the corss-examination, the aforesaid evidence has not been effected. The accused is unable to create any dobut upon the testimony of this witness. Therefore, the evidence of Satyavati also supported the fact that the accused beat Jaymanti Bai by the help of Lathi.
9. As per Laxmi PW-2, she intimated Goma PW-4. The witness Goma also supported the fact and said that at about 04:00 or 04:30 p.m., the daughter of Kallu named Laxmi came to his home and told that the accused is beating her mother in the agriculture field. This witness is not an eye witness. He only received information from daughter of the deceased and thereafter communicated the information to the husband of the deceased.
10. Munna Singh (PW-8) said that the both accused had crossed in running condition nearby the witness. They beat Jayanti Bai by the help of Lathi.
11. Parsadi(PW-9) said that he was returning from the field then he heard sound near the house of Kallu. When he reached to the spot, he found that Bhanu Yadav was beating the deceased. The witness said that he was at some distance, therefore, he only saw that the accused was beating the deceased but he could not see that by which weapon the accused was beatting the deceased.
12. Therefore, looking to the statements of aforementioned witnesses, it is proved beyond reasonable doubt that the accused himself caused the injuries to the deceased by the help of Lathi. No reason of false implication is found in the evidence of any witness.
13. Dr. V.K. Jain (PW-12) conducted the postmortem of the deceased on 20.08.2006 at Primary Health Center , Pali District Umariya. He said that
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socket of right eye was fractured. One lacerated wound was present upon the right side of face 1.5" X 1" X 1". Right maxila and right temporal bone were also fractured and the right eye was also came out with redness. One lacerated wound was also found upon the left side of the head of 1" X 2"
X1/2" X 1/3". Tenderness was also found upon the right arm and there was possibility of the fracture in the radius and Ulna bones. Abrasion were present upon the chest and abdomen in the shape of 10" X 3" . One abrasion was found on left shoulder. The doctor also said that in the internal examination he found that the fracture was in the right eye socket. Fracture Right maxilla and the membrane of brain was tempered. There was a big blood clot in the right side of the head and the brain was appeared to be came out from the head. The doctor gave the opinion that the death was result of injuries in the vital part of the body and the all injuries were caused by hard and blunt object within 12 to 24 hours.
14. Therefore, it appears that the case is supported by medical evidence and it is proved that the accused caused injuries to the deceased by the help of Lathi resulting into the death of the deceased.
15. It is submitted by the Amicus Curiae that upon the basis of same set of evidence, the co-accused has been acquitted by the lower Court, therefore, the present appellant is also entitled to get the acquittal. The aforesaid argument having no any force because it is not supported by the evidence on record. It appears from the evidence specifically the statement of PW-2 that the case against the present appellant is proved beyond reasonable doubt. The evidence against the co-accused was not found, hence his acquittal was not on the basis of same set of evidence.
16. Another argument advanced by the Amicus Curiae that the blood stains were not found upon the Lathi seized from the appellant. It is proved that one Lathi was seized from the possession of the accused upon the information given by himself under Section 27 of Evidence Act. The aforesaid Lathi was sent for chemical examination to the FSL. As per the FSL report No. 2350/2006 dated 26.06.2006, the blood was not found upon
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the Lathi but only upon the aforesaid fact, the accused is not entitled to get the acquittal because the injuries caused by the Lathi and the injuries resulted into various fractures. It is not always possible that the blood stains will be found upon the Lathi. Otherwise the case is also proved by the oral evidence of various witnesses. Therefore, the aforesaid fact does not effect the prosecution case.
17. Looking to all facts and circumstances, it appears that the trial Court did not commit any mistake by convicting the appellant under Section 302 of IPC. Minimum sentence has been awarded, hence no any interference is required in the conviction and sentence.
18. Therefore, this appeal having no any merits, hence, dismissed.
19. One copy of this judgment be sent to the accused through the Jail Authorities.
(SUJOY PAUL) (B.K.SHRIVASTAVA )
JUDGE JUDGE
VD/-
Digitally signed by
VARSHA DUBEY
Date: 2019.08.19
05:17:56 -07'00'