Madhya Pradesh High Court
Jai Singh & Ors. vs The State Of M.P. on 14 February, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
HIGH COURT OF MADHYA PRADESH AT JABALPUR
CRA No. 1337/1995
Jaisingh & Ors.
Vs.
State of Madhya Pradesh
Present : Hon'ble Shri Justice S.K.Gangele, Judge
Hon'ble Smt. Justice Anjuli Palo, Judge
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Ms. Manju Khatri, Amicus Curiae for the appellant.
Shri A.N.Gupta, Government Advocate for the respondent/State.
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JUDGMENT
(14/02/2018) Per : S.K.Gangele, J :-
1. Appellants have filed this appeal against the judgment dated 30.08.1995 passed by the Second Addl. Sessions Judge, Seoni in Session Trial No. 14/1994 whereby the appellants have been convicted under Section 302 and sentenced to undergo R.I. for life & fine of Rs. 5000/- and under Section 447 of the Indian Penal Code & sentenced to undergo R.I. for 3 months with default stipulations.
2. The prosecution story in brief is that the deceased was living in village Runsai ka tola which was inhabited by tribal. They had a belief that deceased used to perform witch-craft (witchery) and due to the act of deceased, Ramkishan's father Ratnu had died on 2 CRA No. 1337/1995 28.10.1993. On the basis of aforesaid incident of death of Ratnu, family members of Ramkishan had a strong belief that Ratnu died due to witch-craft performed by Santram (since deceased). Due to the aforesaid belief, the accused persons came armed on the spot. At that time deceased Santram was sitting in the courtyard (angan) of his house, the accused persons had inflicted injuries on the person of the deceased. He died on the spot. Report of the incident was lodged at police station. Police conducted investigation and filed charge-sheet. Appellants abjured guilt during trial and pleaded innocence.
3. Learned trial Court held the appellants guilty for commission of offence punishable under Sections 302 and 447 of IPC and awarded sentence as mentioned above.
4. During the pendency of the present appeal, appellants No. 3 and 4 were granted suspension of sentence on 02.02.1996, appellant No. 2 was granted suspension of sentence on 14.01.1997 and appellant No. Jaisingh was granted suspension of sentence on 21.06.2000 and he was released on bail after completion of jail sentence of 7 years. Learned counsel for the appellant submitted that even though, if any offence was committed, it would fall under the ambit of Section 304 Part I of the IPC and not under Section 302 of the IPC. Therefore, the appellant prayed to set aside the impugned judgment and for acquittal 3 CRA No. 1337/1995 of charges levelled against them.
5. Learned counsel for the State submitted that the Trial Court has rightly held the appellants guilty for commission of offence because the eye-witnesses have specifically deposed that the appellants had inflicted injuries on the person of the deceased.
6. Shyamlal (PW-10) and Jagoti Bai (PW-11) are the eye- witnesses.
7. Shyamlal (PW-10) deposed that on the date of incident at around 4 - 5 pm in the evening, appellants were beating my uncle (mama) Santram. Appellants Devisingh and Jaisingh were armed with ballam (lance), Sohan was armed with axe and Ramkishan was armed with lathi. They had beaten my uncle. I went to save my uncle. I was also beaten. I became unconscious. Santram was died. Thereafter, all the four accused persons ran away from the spot. I lodged the report at the police station. In his cross- examination, he admitted the fact that he had consumed liquor and was dancing at the time of Diwali. He further stated that he did not mention the fact that Jaisingh was armed with ballam and Sohan was armed with axe in the report.
8. Jagoti Bai (PW-11) is the wife of the deceased. She deposed that at around 5 o'clock in the evening, my husband was sitting on a khat in the courtyard of the house. At that time, accused-appellants 4 CRA No. 1337/1995 Jaisingh, Devisingh, Ramkishan and Sohan had come there and beaten my husband. Jaisingh was armed with ballam, Ramkishan and Devisingh were armed with lathi. I asked them why you were beating my husband. They said "he is shoda". My nephew Ramlal came to save the deceased and he also received injuries on his head. There are some omissions in the statement of this witness recorded by the police under Section 161 of the Cr.P.C.
9. Bhurelal (PW-1) turned hostile. He verified the fact that the police seized plain and red earth before me vide seizure memo Ex. P/1 and I signed the same and also I signed Panchnama of dead body (Ex. P/2). He denied the fact that the police seized ballam from accused Devisingh vide seizure memo Ex. P/4. However, he admitted his signature on Ex. P/4. Similarly, he denied the fact that a lathi was seized before him from accused Jaisingh but he admitted his signature on memorandum Ex. P/5 and seizure memo Ex. P/6. Similarly, he denied the fact that from accused-appellant Sohan a lathi was seized. He admitted his signature on memorandum Ex. P/7 and seizure memo Ex. P/8. Similarly, he denied the fact that from accused-appellant Ramkishan a lathi was seized. But he admitted his signature on memorandum Ex. P/9 and seizure memo Ex. P/10.
10. Suraj Prasad (PW-2) turned hostile. He admitted that panchnama of dead body was prepared. He also denied seizure of 5 CRA No. 1337/1995 articles from the accused persons.
11. Bhagwati Bai (PW-3), Sonelal (PW-4) and Parsadi (PW-5) turned hostile. Deen Dayal Tiwari (PW-7) admitted his signature on seizure memo Ex. P/17, P/18, P/19 and P/20.
12. Nathulal Yadav (PW-9) Patwari deposed that he prepared the spot map which is Ex. P/22 and signed the same.
13. Dr. S.D.Bhide (PW-6) performed post-mortem of the deceased. He deposed that on 16.11.1993, I was posted as Assistant Surgeon at Indira Gandhi Government Hospital, Seoni and I performed post-mortem of the deceased. I noticed an incised wound of size 1"x1"x5" on the back of right upper thigh, 1/3"-11"
above knee joint, vertical in nature gaping on the person of the deceased. The injury was caused by sharp edged weapon. It was sufficient to cause death of the deceased. I also opined that the injury sustained by the deceased could be caused by ballam which was seized from one of the accused.
14. A.K.Dwivedi (PW-12) deposed that I was posed as Station House Officer Incharge at Police Station Lakhanwada on 15.11.1993. Shyamlal Gond lodged a report at the police station. I recorded the report which is Ex. P/23 and signed the same. I sent the body of the deceased for medical examination. Thereafter, I recorded statement of Shyamlal, Maniyaro Bai, Jagoti Bai, 6 CRA No. 1337/1995 Maniram, Manku Bhoi, Manak Bhoi, Semulal Bhoi and Bhagwati Bai. I prepared spot map Ex. P/25. He further deposed that, I noticed there were injuries on the person of the deceased caused by lathi. I seized plain and red earth vide seizure memo Ex. P/1. On the memorandum (Ex. P/3) of Devisingh, a ballam was recovered from his house vide seizure memo Ex. P/4. From other accused persons Jaisingh, Sohan and Ramkishan lathis were seized. Clothes were also seized. Seized ballam was sent to the doctor for examination. Thereafter, on 29.11.1993 I recorded statements of the witnesses Sone, Sohan Singh, Dhruv Lal, Parsadi and Gyansingh. The seized articles were sent to FSL for examination.
15. The two eye-witnesses Shyamlal (PW-10) and Jagoti Bai (PW-11) are interested and related eye-witnesses. Shyamlal (PW-
10) is the nephew and Jagoti Bai (PW-11) is the wife of the deceased.
16. Jagoti Bai (PW-11) deposed that Jaisingh was armed with ballam whereas Shyamlal (PW-10) deposed that Devisingh and Jaisingh both were armed with ballam. There is a contradiction between the statement of both the witnesses on the vital aspect. Shyamlal (PW-10) deposed that two persons Devisingh and Jaisingh were armed with ballam and Jagoti Bai (PW-11) deposed that only Jaisingh was armed with ballam.
7 CRA No. 1337/1995
17. The Hon'ble Apex Court in the case of Kamta Yadav & Ors. Vs. State of Bihar [(2016) 16 SCC 164] has held as under in regard to appreciation of evidence of related and interested eye- witness :
"We have already narrated the deposition of the witnesses in brief. There are six eye witnesses and three of them are injured eye witnesses, which is a weighty factor to show the actual presence of these witnesses at the scene of occurrence. Moreover, the credibility and trustworthiness of all these eye witnesses could not be shaken by the accused persons. Once it is found that these witnesses, who are eye witnesses, were present and they have truthfully narrated the incidence as it happened and their depositions are worth of credence, conviction can be based on their testimonies even if they were related to the deceased. The only requirement, while scrutinising the interested witnesses, is to examine their depositions with greater caution and deeper scrutiny is needed, which exercise has been done by both the courts below. In fact, when the learned counsel for the appellants was confronted with the aforesaid factual and legal position, he could not even provide any answer to the same."
18. The Apex Court has held that conviction can be based on the basis of evidence or related witnesses, however, their evidence has to be examined with greater caution and deeper scrutiny.
19. The Hon'ble Apex Court in case of Sadhu Saran Singh Vs. State of Uttar Pradesh & Ors. [(2016) 4 SCC 357] has further held as under in regard to appreciation of medical evidence versus 8 CRA No. 1337/1995 ocular evidence and inconsistency between medical and ocular evidence.
"We are of the view that the High Court, for acquitting the respondents, had mainly relied upon the medical evidence in a very inappropriate manner. When the doctor (PW 7) in his examination-in-chief had categorically stated that the incident could have occurred at 8.00 a.m. which corroborated the case of the informant, there was no reason to disbelieve this fact to hold that the incident occurred between 2.00 to 4.00 a.m. merely basing on a vague statement made by the Doctor in the cross-examination. Also we believe that merely for the reason that no blunt injuries were present on the deceased, the whole evidence of PW 1 cannot be discarded as primacy has to be given to the ocular evidence particularly in the case of minor discrepancies. This Court in Darbara Singh Vs. State of Punjab, (2012) 10 SCC 476, wherein this Court has held :
".... So far as the question of inconsistency between the medical evidence and the ocular evidence is concerned, the law is well settled that, unless the oral evidence available is totally irreconcilable with the medical evidence, the oral evidence would have primacy. In the event of contradictions between medical and ocular evidence, the ocular testimony of a witness will have greater evidentiary value vis-à-vis medical evidence and when medical evidence makes the oral testimony improbable, the same becomes a relevant factor in the process of evaluation of such evidence. It is only when the contradiction between the two is so extreme that the medical evidence completely rules out all possibilities of the ocular evidence being true at all, that the ocular evidence is liable to be disbelieved." (emphasis supplied) 9 CRA No. 1337/1995
20. The Apex Court in case of Mahavir Singh Vs. State of MP [(2016) 10 SCC 220] that the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.
21. In the present case, Dr. D.S.Bhide (PW-6) performed autopsy of the deceased. He deposed that he noticed only one injury on the person of the deceased that could be caused by ballam. He mentioned the same fact in the post-mortem report Ex. P/15.
22. Although, the A.K.Dwivedi (PW-12) Investigation Officer deposed that he had noticed injuries on the person of the deceased which may be caused by lathis, there is no cross-examination by the prosecution of Dr. D.S.Bhide (PW-6) who performed autopsy of the deceased that there were other injuries on the person of the deceased. The evidence of Dr. D.S.Bhide (PW-6) is reliable piece of evidence. The prosecution has also not levelled any allegation that Dr. D.S.Bhide (PW-6) had any bias. Hence, in our opinion 10 CRA No. 1337/1995 evidence of Dr. D.S.Bhide (PW-6) would prevail on the evidence of A.K.Dwivedi (PW-12) Investigation Officer.
23. In the light of the principles of law laid down in the judgment quoted above and the facts of the case, evidence of Shyamlal (PW-
10) and Jagoti Bai (PW-11) have to be analyzed with greater caution and deeper scrutiny because both are related witness.
24. It was also deposed that Shyamlal (PW-10) received injuries but there is no evidence of doctor who examined him and neither there is MLC report on record. Hence, Shyamlal (PW-10) cannot be termed as an injured eye-witness. Both witnesses have deposed that all the accused persons had been beating the deceased. Shyamlal (PW-10) deposed that Devisingh and Jaisingh were armed with ballam, Sohan with axe and Ramkishan with lathi.
25. Jagoti Bai (PW-11) deposed that Jaisingh was armed with ballam. Ramkishan and Devisingh were armed with lathi. From the possession of appellant Devisingh, a ballam was seized and from Jaisingh a lathi was seized.
26. Hence, the evidence of Shyamlal (PW-10) is reliable to the extent that Devisingh had caused injury by ballam to the accused and the evidence of PW-10 and PW-11 that other accused persons has caused injuries to the deceased is not reliable because evidence of Dr. S.D.Bhide (PW-6) completely ruled out any injury of lathi 11 CRA No. 1337/1995 on the person of the deceased.
27. On the basis of aforesaid analysis, in our opinion, the trial Court has wrongly convicted appellants No. 1-Jaisingh, appellant No. 3-Ramkishan and appellant No. 4-Sohan (except appellant No.2 Devisingh) for commission of offence punishable under Section 302 and 447 of IPC.
28. Now, the next question is that what offence accused-appellant Devisingh has committed. As per evidence of Dr. S.D.Bhide (PW-
6), there was one injury on the thigh of the deceased. Thigh is the non-vital part of the body. Deceased had sustained only one injury. The Apex Court in case of Nankaunoo vs. State of Uttar Pradesh, (2016) 3 SCC 317, the Hon'ble Supreme Court has held as under :
"Intention is different from motive. It is the intention with which the act is done that makes a difference in arriving at a conclusion whether the offence is culpable homicide or murder. The third clause of Section 300 IPC consists of two parts. Under the first part it must be proved that there was an intention to inflict the injury that is present and under the second part it must be proved that the injury was sufficient in the ordinary course of nature to cause death. Considering the clause thirdly of Section 300 IPC and reiterating the principles in Virsa Singh's case, in Jai Prakash v. State (Delhi Administration) (1991) 2 SCC 32, para (12), this Court held as under:-
"12. Referring to these observations, Division Bench of this Court in Jagrup Singh case, (1981) 3 SCC 616 observed thus:12 CRA No. 1337/1995
"These observations of Vivian Bose, J. have become locus classicus. The test laid down in Virsa Singh case, AIR 1958 SC 465 for the applicability of Clause Thirdly is now ingrained in our legal system and has become part of the rule of law."
The Division Bench also further held that the decision in Virsa Singh case AIR 1958 SC 465 has throughout been followed as laying down the guiding principles. In both these cases it is clearly laid down that the prosecution must prove (1) that the body injury is present, (2) that the injury is sufficient in the ordinary course of nature to cause death, (3) that the accused intended to inflict that particular injury that is to say it was not accidental or unintentional or that some other kind of injury was intended. In other words Clause Thirdly consists of two parts. The first part is that there was an intention to inflict the injury that is found to be present and the second part that the said injury is sufficient to cause death in the ordinary course of nature. Under the first part the prosecution has to prove from the given facts and circumstances that the intention of the accused was to cause that particular injury. Whereas the second part whether it was sufficient to cause death is an objective enquiry and it is a matter of inference or deduction from the particulars of the injury. The language of Clause Thirdly of Section 300 speaks of intention at two places and in each the sequence is to be established by the prosecution before the case can fall in that clause. The 'intention' and 'knowledge' of the accused are subjective and invisible states of mind and their existence has to be gathered from the circumstances, such as the weapon used, the ferocity of attack, multiplicity of injuries and all other surrounding circumstances. The framers of the Code designedly used the words 'intention' and 'knowledge' and it is accepted that the knowledge of the consequences which may result in doing an act is not the same thing as the intention that such consequences should 13 CRA No. 1337/1995 ensue. Firstly, when an act is done by a person, it is presumed that he must have been aware that certain specified harmful consequences would or could follow. But that knowledge is bare awareness and not the same thing as intention that such consequences should ensue. As compared to 'knowledge', 'intention' requires something more than the mere foresight of the consequences, namely the purposeful doing of a thing to achieve a particular end."
12. The emphasis in clause three of Section 300 IPC is on the sufficiency of the injury in the ordinary course of nature to cause death. The sufficiency is the high probability of death in the ordinary course of nature. When the sufficiency exists and death follows, causing of such injury is intended and causing of such offence is murder. For ascertaining the sufficiency of the injury, sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. Depending on the nature of weapon used and situs of the injury, in some cases, the sufficiency of injury to cause death in the ordinary course of nature must be proved and cannot be inferred from the fact that death has, in fact, taken place.
Keeping in view the above principles, when we examine the facts of the present case, the deceased sustained gunshot wound of entry 1- 1/2" x 1-1/2" on the back and inner part of left thigh, six gunshot wounds of exit each 1/3" x 1/3" in size in front and middle left thigh. Due to the occurrence in the morning at the barber shop of the deceased, the appellant emerged from the northern side of the grove carrying pistol in his hand and fired at the deceased. The weapon used and the manner in which attack was made and the injury was inflicted due to premeditation clearly establish that the appellant intended to cause the injury. Once it is established that the accused intentionally inflicted the injury, then the offence would be murder, if it is sufficient in the ordinary course 14 CRA No. 1337/1995 of nature to cause the death. We find substance in the contention of the learned counsel for the appellant the injury was on the inner part of left thigh, which is the non-vital organ. Having regard to the facts and circumstances of the case that the gunshot injury was caused in the inner part of left thigh, the sufficiency of injury to cause death must be proved and cannot be inferred from the fact that death has taken place. But the prosecution has not elicited from the doctors that the gunshot injury on the inner part of left thigh caused rupture of any important blood vessel and that it was sufficient in the ordinary course of nature to cause the death. Keeping in view the situs and nature of injury and in the absence of evidence elicited from the doctor that the said injury was sufficient in the ordinary course of nature to cause death, we are of the view that it is a fit case where the conviction of the appellant under Section 302 IPC should be under Section 304 Part 1 IPC."
29. The offence committed by appellant No. 2 Devisingh would fall under Section 304 Part I of IPC.
30. Consequently, the appeal filed by appellant No. 1-Jaisingh, appellant No. 3-Ramkishan and appellant No. 4-Sohan is hereby allowed. Appellants Jaisingh, Ramkishan and Sohan are acquitted from the charges levelled against them. The impugned judgment and sentence passed by the Trial Court is hereby set aside. The appellants are on bail. Their bail bonds are hereby discharged.
31. The appeal filed by appellant No. 2-Devisingh is partly allowed. His conviction and sentence awarded by the Trial Court under Section 302 of IPC is altered to Section 304 Part I of the 15 CRA No. 1337/1995 Indian Penal Code. He is awarded sentence of R.I. for 10 years and fine of Rs. 1000/-. In case of default of payment of fine amount, further R.I. for 3 months. The conviction and sentence awarded by the Trial Court under Section 447 of IPC is hereby upheld. Both the sentences shall run concurrently. Appellant Devisingh is on bail. His bail bonds are canceled and he is directed to surrender immediately before the concerned trial Court to undergo remaining part of the jail sentence, failing which the trial Court shall take appropriate action under intimation to the registry.
32. We appreciate the assistance provided by Ms. Manju Khatri, Amicus Curiae for the appellant and Shri A.N.Gupta, Government Advocate for the State.
33. Copy of this judgment be sent to the Court below for information and compliance alongwith its record.
(S.K.GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
vidya
Digitally signed by SREEVIDYA
Date: 2018.02.19 11:51:01
+05'30'