Madhya Pradesh High Court
Jagdish vs The State Of Madhya Pradesh on 6 March, 2018
Bench: H.P. Singh, Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.2235/2007
Jagdish
Vs.
The State of M.P.
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Shri D.D. Bhargava, learned counsel for the appellant.
Shri Shailesh Sharma, learned G.A. for the
respondent/State.
PRESENT:
HON'BLE SHRI JUSTICE H.P. SINGH
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
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JUDGMENT
(06/03/2018) As per :- Rajeev Kumar Dubey, J This criminal appeal has been filed against the judgment dated 19/09/2007 passed by I Additional Session Judge, Hoshangabad in ST.No.191/2006, whereby learned ASJ found the appellant guilty for the offences punishable under Section 302, 324 of the IPC and sentenced him to life imprisonment with fine of Rs.500/- and R.I. for three years with fine of Rs.500/- respectively, with default stipulation.
2. Brief facts of the case are that on 10/06/2005 at 11:00 AM appellant Jagdish abused Ramdas and slapped him and also threatened to kill him. For lodging the report of that incident, Ramdas (PW/2) went to Police Station Seoni Malwa along with Meghraj (PW/3) and Ramu (PW/5). On that at 1:30 PM appellant Jagdish armed with spear (ballam) and other co-accused Anil armed with sword, Sunil armed with farsa (halberd), Hariprasad, Somwati & Suman armed with stick came to Ramphal Hriyale's house, where deceased Guldar was sitting and 2 abused him. When Guldar stopped him they assaulted Guldar with the weapons which they carried with them, due to which he sustained injury in his stomach and fell down and died on the spot. When Fandulal (PW/4) tried to rescue him, Jagdish assaulted him by spear, due to which Fandulal (PW/4) also sustained injury in his left hip. At the time of incident Ramraj (PW/2), Meghraj (PW/3), Ramu (PW/5), Suresh (PW/9), Parwatibai, and Sushilabai also came there and saw the incident. After the incident present appellant and other co-accused persons ran away from the spot.
3. On the information Head Constable Rajeshwari Mishra went to spot, where Ramdas (PW/2) narrated the incident to him, on which he wrote the FIR (Dehati Nalisi) (Ex.P/4) and sent it for original registration through Constable Shankarlal to Police Station Seoni Malwa. On that report Crime No.224/05 (Ex.P/21) was registered by A.S.I. Trilokinath Kushwaha (PW/10) against the present appellant Jagdish and co-accused persons namely Anil Mehtar, Sunil Mehtar, Hari Mehtar, Somwati and Suman Mehtar for the offence punishable under Section 147, 148, 149, 294, 324, 302 of the IPC and investigated the matter. During investigation A.S.I. RP. Choudhary (PW/6) went to spot and prepared spot map (Ex.P/5) and also seized simple and blood stained soil from the spot and prepared seizure memo (Ex.P/9). He also prepared inquest report (Ex.P/10) of dead body of Guldar in presence of panch witnesses and sent it for autopsy to PHC Seoni, where Dr. Pratibha Jeevne (PW/1) conducted the postmortem of the dead body of deceased Guldar and gave report (Ex.P/3) and also seized blood stained clothes from the dead body of deceased Guldar and handed over the same to the concerning constable in a sealed packet. Dr. Pratibha Jeevne (PW/1) also examined injured Fandulal and gave report (Ex.P/1). RP. Choudhary (PW/6) also recorded the statements of Ramraj Hariyale (PW/2), Meghraj Hariyale (PW/3), Fandulal (PW/4), Ramu Hariyale (PW/5) Suresh Kumar (PW/9), Sushilabai and Parwatibai and arrested co- accused Somwatibai, Sumanbai and Hariprasad and prepared arrest memo (Ex.P/11 to 13). Further investigation was carried out by 3 Inspector Arun Yogi (PW/8), who during the investigation on 04/04/06 arrested the present appellant Jagdish and prepared arrest memo (Ex.P/14) and on the information of appellant seized one ballam and prepared information memo (Ex.P/16) and seizure memo (Ex.P/17). He also sent all the seized articles for chemical analysis alongwith draft (Ex.P/18), from where report (Ex.P/19) was received. After investigation Police filed charge-sheet against the present appellant Jagdish and other co-accused persons namely Anil Mehtar, Sunil Mehtar, Hari Mehtar, Somwati and Suman Mehtar before the learned JMFC, Hoshangabad. Because co-accused Anil Mehtar and Sunil Mehtar did not found, so police filed charge sheet against them in their absence. Learned JMFC declared them absconder and committed the case for remaining accused persons to the Court of Sessions. On that S.T.No.191/2006 was registered. Learned First Additional Session Judge, Hoshangabad framed charges against the appellant for the offence punishable under Section 148, 294, 324, 302 and in alternate 302/149 of the IPC and framed charges against co-accused Hariprasad, Somwati and Suman for the offence punishable under Section 147, 294, 324/149, 302 and in alternate 302/149 of the IPC. The appellant and other co-accused persons abjured their guilt and took the defence that they are innocent and have falsely been implicated in the case and also produced Santosh Yadav (DW/1) and Subhash (DW/2) in his defence, who stated that at the time of incident deceased Guldar assaulted co-accused Hariprasad by ballam, due to which Hariprasad sustained injury in his leg, hand and head. However, after the trial learned trial Court acquitted the co- accused persons namely Hariprasad, Somwati and Suman from all the charges and also acquitted the appellant Jagdish for the offence punishable under Sections 294, 148 of the IPC but found him guilty for murdering Guldar and voluntarily causing injury to Fandulal for the offence punishable under Section 302, 324 of the IPC and sentenced him as aforesaid. Being aggrieved by the impugned judgment appellant has filed this appeal.
44. Learned counsel for the appellant submitted that the eyewitness of the incident Ramraj Hariyale (PW/2), Meghraj (PW/3), Fandulal (PW/4), Ramu (PW/5) and Suresh (PW/9) in their statements stated that at the time of incident co-accused Anil armed with sword, Hariprasad, Somwati and Sumanbai armed with stick, appellant Jagdish armed with ballam and Sunil armed with Farsa came to the spot and all of them assaulted Guldar, while learned trial Court acquitted the co- accused Hariprasad, Sumanbai and Somwatibai holding that the statements of these eyewitnesses i.e. Ramraj Hariyale (PW/2), Meghraj (PW/3), Fandulal (PW/4) and Ramu (PW/5) and Suresh (PW/9) were false regarding involvement of Somwatibai, Suman and Hariprasad in the incident, so in these circumstances the statement of these eyewitness cannot be believed for present appellant also. According to postmortem report in the incident deceased Guldar sustained only one injury in his stomach and Dr. Pratibha Jeevne (PW/1) who conducted the postmortem of the dead body of deceased Guldar stated that the injury sustained by Guldar can be caused by sword and knife. Ramraj Hariyale (PW/2), Meghraj (PW/3), Fandulal (PW/4) and Ramu (PW/5) and Suresh (PW/9) deposed that in the incident appellant Jagdish by spear, co-accused Anil by sword and Sunil by farsa assaulted the deceased Guldar, but from the statement of these eyewitnesses it is not clear that who caused that injury to the deceased Guldar. He further submitted that the seizure of spear from the possession of the appellant is also doubtful because in this regard the statement of Arun Yogi (PW/8) did not support the statement of Anokhilal (PW/7) the independent witness of the memorandum (Ex.P/16) and seizure memo (Ex.P/17) and he clearly denied from the fact that appellant Jagdish informed before him regarding concealment of spear and Police seized one spear on his instance. So in this regard the statement of Arun Yogi (PW/8) who is interested witness cannot be believed. Even otherwise in the FSL report (Ex.P/19) it is not mentioned that the blood group of blood which was found on that seized spear matched with the blood group of deceased Guldar and spear is commonly found in the house of villagers, so only on the basis of 5 seizure of spear it cannot be assumed that the appellant inflicted fatal blow to deceased Guldar. Learned trial Court without appreciating all these facts wrongly found the appellant guilty for the aforesaid offences.
5. On the other hand learned counsel for the State submitted that from the statement of Dr. Pratibha Jeevne (PW/1), who conducted the postmortem of dead body of the deceased it is clear that the deceased sustained one penetrating wound in his stomach and from the statement of Ramraj Hariyale (PW/2), Meghraj (PW/3), Fandulal (PW/4) and Ramu (PW/5) it is clear that the fatal injury was caused by present appellant Jagdish by spear (ballam), so the learned trial Court did not commit any mistake in holding the appellant guilty for the aforesaid offence.
6. This Court has gone through the record and arguments advanced by the learned counsel for the parties. On the point that on 10/06/05 Guldar died and his death was homicide and Fundilal also sustained injury which was caused by penetrating object, Dr. Pratibha Jeevne (PW/1) clearly deposed that on 10/06/05 she conducted the postmortem of the dead body of deceased Guldar. In the postmortem she found following external injury on the dead body of the deceased Guldar :-
"A vertical (longitudinal) penetrating wound with clean cut margin spindle shaped present over left side of abdomen just below left hypochondrium region size 6.5 cm x 1.5 cm x abdominal cavity deep intestinal loops coming out from the wound. Clotted blood was present underneath skin."
7. She further stated that the injury was caused by hard and pointed object and in her opinion Guldar died due to hemorrhagic shock, which was caused due to injury in vital organ (small intestine) and Guldar died within 24 hours from the postmortem. She also deposed that on the same day she examined injured Fundulal (PW/4) and found one incised wound on his left hip size 5x2 cm. x bone deep, which was caused by the hard, sharp and pointed object and duration of injury was 12 hours from the examination. Her statement is also corroborated from 6 postmortem report (Ex.P/2) and MLC report (Ex.P/1). Dr. Pratibha Jeevne (PW/1) is an independent witness, appellant has not given any significant challenge to the statements of this witness in her cross- examination, so there is no reason to disbelieve her statement in this regard. From her statement it is clearly proved that Guldar died on 10/06/05 due to an injury sustained by him in his stomach, which was caused by hard and sharp object and his death was homicide, which amounts to murder and injured Fandulal sustained injury in his left hip which was also caused by hard, sharp and penetrating object like ballam.
8. On the point that appellant murdered Guldar by assaulting him by Spear (ballam) and also voluntarily caused injury to Fandulal, injured Fandulal (PW/4) clearly deposed that at the time of incident he was sitting at Ramphal's house, where deceased Guldar, Meghraj, Ramraj, Parwati, Ramu, Ramdas, Sushila and Suresh were also sitting. At that time present appellant Jagdish armed with ballam and other co- accused persons Anil armed with sword and Sunil armed with farsa, Hariprasad, Somwati & Suman armed with stick came there and abused Guldar. When Guldar stopped them, all the accused persons assaulted him. Appellant Jagdish assaulted him by ballam and inflicted injury in his stomach, due to which Guldar fell down and blood oozed out from his stomach. Jagdish also assaulted him by ballam. He sustained injury in his left hip. His statement is also corroborated by the statement of Ramraj Hariyale (PW/2), Meghram (PW/3), Ramu (PW/5) and Suresh (PW/9).
9. Ramraj Hariyale (PW/2) also deposed that at the time of incident he was sitting at the house of Ramphal, where appellant Jagdish armed with ballam and other co-accused persons Anil armed with sword, Sunil armed with farsa and Hariprasad, Somwati & Suman armed with stick came there and abused Guldar. When Guldar stopped them to do so, appellant Jagdish and co-accused Anil, Sunil and Hariprasad assaulted Guldar by the arms which they carried. Appellant Jagdish inflicted injury in his stomach by ballam. When Fundulal tried to rescue deceased Guldar, appellant Jagdish also assaulted him by ballam.
7Fandulal sustained injury in his left hip. Meghraj (PW/3), Ramu (PW/5) and Suresh (PW/9) also gave the similar statement.
10. The prosecution case is also supported by the statement of Arun Yogi (PW/8), who deposed that on 09/09/05 he was posted as Station House Officer at Police Station Seoni Malwa and investigated the matter. During investigation on 04/04/06 he arrested appellant Jagdish and prepared arrest memo (Ex.P/14). On interrogation appellant Jagdish informed regarding concealment of spear in his house. On that, he prepared information memo (Ex.P/16) and thereafter seized that spear at the instance of appellant Jagdish and prepared seizure memo (Ex.P/17). He further deposed that he also sent that seized spear and other articles seized during investigation of the crime to Regional Forensic Science Laboratory, Bhopal alongwith draft (Ex.P/18). The prosecution also produced report (Ex.P/19) received from Regional Forensic Science Laboratory, Bhopal, wherein it is mentioned that on the spear (Article-D), which was seized at the instance of appellant Jagdish, human blood was found, which further strengthened the prosecution story that in the incident appellant inflicted blow to the deceased Guldar by that spear.
11. Although, Ramraj Hariyale (PW/2), Meghraj (PW/3), Fandulal (PW/4), Ramu (PW/5) and Suresh Kumar (PW/9) deposed that in the incident apart from Jagdish co-accused Anil and Sunil also assaulted deceased Guldar by sword and farsa respectively and co- accused Hariprasad, Somwati and Suman also assaulted deceased Guldar by stick, while in the postmortem report (Ex.P/3) of deceased Guldar only what is mentioned that in the incident Guldar sustained only one injury, which shows that the statements of these witnesses were not fully true. They wrongly involved many persons in the incident. But, only on the ground that some part of statements of these witnesses is false, their whole statements cannot be discarded.
12. Hon'ble Apex Court in the case of Dalveer Vs. State of Haryana, AIR 2008 SC 2389, held that even if major portion of evidence is found to be deficient, residue is sufficient to prove guilt of an 8 accused, notwithstanding acquittal of large number of other co-accused persons, his conviction can be maintained. However, where large number of other persons are accused, the Court has to carefully screen the evidence. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. Hon'ble Apex Court in the case of Ranjit Singh & Ors Vs. State of M.P., (2011) 4 SCC 336 also held that "It is now a well-settled principle of law that the doctrine "falsus in uno, falsus in omnibus" has no application in India." So only on the ground that some part of the statements of Ramraj Hariyale (PW/2), Meghraj (PW/3), Fandulal (PW/4), Ramu (PW/5) and Suresh Kumar (PW/9) is false, their whole statements cannot be discarded.
13. Even in the incident Fandulal (PW/4) also sustained injury, which shows that this witness is present on the spot at the time of incident. Hon'ble Apex Court in the case of Mano Dutt & Another Vs. State of U.P, (2012) 4 SCC 79 held that "the injury to the witness is an inbuilt guarantee of his presence at the scene of the crime and because the witness will not want to let his actual assailant go unpunished merely to falsely implicate a third party for the commission of the offence. Thus, the deposition of the injured witness should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies therein." There are no major contradictions and discrepancies in the statement of Fandulal (PW/4) on the point that in the incident appellant inflicted injury in the stomach of Guladar by ballam. So there is no reason to disbelieve his statement up to this extent which is also supported by the statement of other witnesses also as discussed above.
914. Although, Anokhilal (PW/7) the independent witness of memorandum (Ex.P/16) and seizure memo (Ex.P/17) turned hostile and did not support the statement of Arun Yogi (PW/8) in this regard, but only on this ground the statement of Arun Yogi (PW/8) cannot be disbelieved. Hon'ble Apex Court in the case of Modan Singh Vs. State of Rajasthan, AIR 1978 SC 1511 held that if the evidence of investigating officer who recovered the material objects is convincing, the evidence as to recovery need not be rejected on the ground that seizure witnesses do not support the prosecution version. In the case of Sanjay Vs. State, 2001 Cr. L.J. 1231 (SC) held that " It is well settled that evidence of search or seizure made by the police will not be vitiated solely for the reason that independent witnesses do not support the evidence. Hon'ble Apex Court in the case of Karamjeet V. State, AIR 2003 page 1311 held that the testimony of police personnel should be treated in the same manner as testimony of any other witness and there is no principle of law that without corroboration by independent witnesses their testimony cannot be accepted. There is no material contradiction or omissions in the statement of Arun Yogi (PW/8) on the basis of which his statement can be assumed false.
15. So, from the statement of Arun Yogi (PW/8) it is also proved that the spear (Article-D) was seized by Arun Yogi (PW/8) at the instance of appellant and from the FSL report (Ex.P/19) it is also proved that human blood was found on that spear. Although, it is not mentioned in the report that that blood matched with the blood group of the deceased Guldar. But, it is mentioned therein that it was human blood. Although it is not conclusive evidence, but it certainly supports the other evidence on record. It is equally true that mere blood stains on the cloth in absence of other evidence would not connect the accused with the commission of offence, but in the present case as appeared from the prosecution witnesses as discussed earlier, the appellant Jagdish was not only present at the scene of offence, but he had also assaulted deceased Guldar and injured Fandulal (PW/4) and the appellant/accused could not tender any satisfactory explanation in this regard. So, that piece 10 of evidence is also strengthened the statements of the prosecution witnesses i.e. Ramraj Hariyale (PW/2), Meghraj (PW/3), Fandulal (PW/4), Ramu (PW/5) and Suresh Kumar (PW/9) that it is appellant Jagdish who assaulted deceased Guldar fatal blow.
16. Appellant Jagdish also produced Santosh Yadav (DW/1) and Subhash (DW/2) in his defence. Santosh Yadav (DW/1) deposed that on the date of incident, he went to spot on hearing the voice of abuses, where he saw that deceased Guldar was assaulting Hariprasad by stick and ballam, where injured Fandulal (PW/4), Ramu (PW/5), Meghraj (PW/3), Ramraj Hariyale (PW/2) were also present. In the incident Hariprasad sustained injuries on his hand, leg and head. Similarly, Subhash (DW/2) deposed that on the date of incident he was standing at Garden of Santosh situated infront of house of Suresh Kumar (PW/9) and on hearing of shouts, he went to the spot, where he saw that Ramu (PW/5), Gullu and Ramraj Hariyale (PW/2) armed with ballam and Fandulal (PW/4) and Meghraj (PW/3) armed with stick were assaulting appellant Hariprasad, due to which he sustained injuries.
17. But in this regard statements of Santosh Yadav (DW/1) and Subhash (DW/2) were contradictory. Santosh Yadav (DW/1) deposed that in the incident only Guldar assaulted co-accused Hariprasad by stick and ballam, while Subhash (DW/2) deposed that Ramu (PW/5) and Ramraj Hariyale (PW/2) assaulted co-accused Hariprasad by ballam and Fandulal (PW/4), Gullu and Meghraj Hariyale (PW/2) assaulted Hariprasad by stick. If he had actually seen the incident, then there would not have been much contradiction in their statement regarding incident. Even, co-accused Hariprasad in his examination under Section 313 of the Cr.P.C. in answer of question Nos. 4 & 32 clearly denied from the fact that he was present on the spot at the time of incident and did not state that he also sustained injuries in the incident. So the statement of Santosh Yadav (DW/1) and Subhash (DW/2) to the effect that in the incident deceased Guldar and other persons assaulted Hariprasad does not appear to be correct. They even did not state how Guldar sustained injury in the incident. So, their statements cannot be believed.
1118. From the statements of Ramraj Hariyale (PW/2), Meghraj (PW/3), Fandulal (PW/4), Ramu (PW/5) and Suresh Kumar (PW/9) it is clearly proved that in the incident appellant Jagdish assaulted fatal blow on deceased Guldar in his stomach by spear, due to which Guldar died and appellant Jagdish also assaulted Fandulal (PW/4).
19. Learned counsel for the appellant also submitted that from the medical evidence what only appears is that the appellant assaulted only one blow of spear on Gualdar's stomach and from the statements of prosecution witnesses it also does not appear that the appellant inflicted injury on Gualdar's stomach with an intention to kill him. So appellant's act at the most comes under the preview of Section 304 of IPC. But this argument also has no force. There is no fix rule that whenever a single blow is inflicted Section 302 IPC would not be attracted. Under Clause "third" of Section 300 of the IPC culpable homicide is murder, if both the following conditions are satisfied: i.e. (a) that the act which causes death is done with the intention of causing death or is done with the intention of causing a bodily injury; and (b) that the injury intended to be inflicted is sufficient in the ordinary course of nature to cause death. It must be proved that there was an intention to inflict that particular bodily injury which, in the ordinary course of nature, was sufficient to, cause death viz. that the injury found to be present was the injury that was intended to be inflicted. Once these ingredients are proved, it is irrelevant whether there was a single blow struck or multiple blows, as held by Hon'ble Apex court in the case of Arun Raj Vs. Union of India and others, (2010) 6 SCC 457.
20. It is clear from the prosecution evidence as discussed above that at the time of incident, the appellant came on the spot armed with ballam (spear) and assaulted Gualdar on his stomach by deadly weapon i.e. ballam (spear) and inflicted injury with such a force on Gualdar's stomach by ballam that his abdomen wall was 12 ruptured and from which large loops of small intestine got protruded out and intestine also got cut, therefore, it is clear from his act that he with the knowledge, that it is likely to cause death inflicted such injuries on Gualdar's stomach which clearly shows that the appellant inflicted such injury on Gualdar's stomach with intent to kill Gualdar.
21. So learned trial Court did not commit any mistake in holding the appellant guilty for murdering Gualdar for the offence punishable under Section 302 of IPC and for voluntarily causing injury to Fundilal for the offence punishable under Section 324 of the IPC. Hence, the finding of conviction and sentence of the trial Court is hereby upheld.
22. Resultantly, appeal has no merits and the same are hereby dismissed.
23. The period already undergone by the appellant shall be set off from the period of substantive jail sentence.
(H.P. Singh) (Rajeev Kumar Dubey)
JUDGE JUDGE
as/
Digitally signed by ANURAG SONI
Date: 2018.03.07 10:24:24 +05'30'