The State Of M.P. vs Ballu @ Balram @Balmukund & Anr. on 6 April, 2018

[Cites 5, Cited by 8]

Madhya Pradesh High Court

The State Of M.P. vs Ballu @ Balram @Balmukund & Anr. on 6 April, 2018

The State has preferred this appeal being aggrieved by the judgment dated 26.03.1994, passed by the Additional Sessions Judge, Damoh in S.T. No. 160/1992, whereby the respondents have been acquitted from the charges under Sections 302/34 and 201 of the IPC.

2. Prosecution story in brief is that, deceased-Mahesh had love relation with Anita, daughter of respondent no. 2 Jamna Bai and sister of respondent no. 1 Ballu @ Balram. Anita and deceased Mahesh resided at 2 Cr. A. No.261/1995 Agra for about eight months and then returned to Damoh. Thereafter, marriage of Anita was solemnized with other person. Even then they were in contact with each other. Due to this enmity, on 07.06.1992 at about 11:00 p.m., the respondents caused death of the deceased in furtherance of their common intention. Govind (PW-7) saw that Ballu @ Balram was dragging a dead body from his house and his mother Jamuna Bai was washing the blood stains of his door. Someone had informed Beni Prasad (PW-1) and Sumitra Bai (PW-6) father and mother of the deceased and they came on the spot. The matter was reported to Police Station, Damoh. After investigation, charge sheet was filed before the concerned Court for offences punishable under Sections 302/34 and 201 of the IPC against the respondents.

3. Learned trial Court found that the prosecution evidence is not sufficient to establish the offence committed by the respondents. It was held by the trial Court that the prosecution evidence is contradictory to each other. There is no direct evidence against the respondents. Hence, learned trial Court has acquitted the respondents from the charges under Sections 302/34 and 201 of the IPC.

4. The State has challenged the aforesaid findings on the grounds that the learned trial Court has erred in acquitting the respondents. The evidence of Beni Prasad (PW-1) and Sumitra Bai (PW-6) ought to have been accepted as the same is full of conformity. Evidence of aforesaid witnesses is also corroborated by medical evidence, which shows that the respondents have committed murder of Mahesh. The death of Mahesh is homicidal in nature. The trial Court has wrongly given much weight to the minor contradictions, therefore, the impugned judgment is liable to be set aside 3 Cr. A. No.261/1995 and the respondents be convicted for the offences punishable under Sections 302/34 and 201 of the IPC.

5. Heard. Perused the record.

6. In the present case, Beni Prasad (PW-1) and Sumitra Bai (PW-6) parents of the deceased Mahesh and Sukant Banerjee (PW-15) Investigation Officer are the important prosecution witnesses. Beni Prasad (PW-1) and Sumitra (PW-6) established that the deceased Mahesh had love-relationship with Anita who is the daughter of respondent No. 2 and sister of respondent No. 1. As per the prosecution story, Mahesh and Anita were married at Vrindavan temple without consent of the respondents therefore, they were annoyed with the deceased.

7. Beni Prasad (PW-1) and his wife Sumitra Bai (PW-6) further stated that without any information the deceased Mahesh and Anita were residing together at Agra. After some time they both came back at Damoh. Then Anita went to her paternal house and Mahesh was residing with his parents. In the meanwhile, the respondents performed marriage of Anita with another person. Anita did not like him. She wanted to reside with the deceased. Unfortunately, Anita (PW-18) turned hostile due to her close relationship with the respondents. In the presents case, there is no direct evidence against the respondents but some circumstantial evidence were present which establish the guilt of the respondents. A boy informed Beni Prasad (PW-1) and Sumitra Bai (PW-6) that the respondents and his family members assaulted Mahesh. Therefore, Beni Prasad rushed towards the spot near the respondents house.

8. Learned Trial Court held that there are material contradictions in 4 Cr. A. No.261/1995 the testimony of Beni Prasad (PW-1) and Sumitra Bai (PW-6). In their court statement they deposed that they saw the incident. Respondent Bablu, Santosh & others were assaulting their son. Then they dragged the body of Mahesh and left it 10 feet away from their house. Thereafter, they went inside their house. Respondent No. 2 was washing the blood stains from their house. After considering the entire testimony of Beni Prasad (PW-1) and Sumitra Bai (PW-6) we come to the conclusion that there are improvements and exaggerations in their court statement. But on this ground their whole testimony cannot be brushed out as the principle " Falsus in uno, falsus in omnibus" is not applicable in criminal trial. Sometimes, the witnesses are in fear that if their testimony cannot be relied upon by the Court, the main culprit may be acquitted. Therefore, naturally they improve their statement to some extent.

9. The conduct of above witnesses namely father and mother of the deceased is quite natural. When they heard about the incident with their son, they ran towards the spot and found Mahesh lying dead. FIR Ex. P/1 was promptly lodged by Beni Prasad (PW-1). In the FIR, he mentioned that on the date of incident, they were sleeping at their house. At about 12:30 am, a boy came and told them that their son Mahesh is lying dead in front of the house of Bablu (respondent No. 1). Thereafter, Beni Prasad (PW-1) and his wife Sumitra Bai (PW-6) reached the spot and found their son lying dead and they also found blood stains of the dead body being dragged from the door of the respondent to the place where the body was lying. They also saw that respondent No. 2 was cleaning the blood stains from the door with water. On seeing them, she closed the door. The above facts were narrated 5 Cr. A. No.261/1995 by the Beni Prasad (PW-1) immediately after the incident to the police station Kotwali, Damoh.

10. Investigation Officer (PW-15) Sukant Banerjee also corroborated the testimony of Beni Prasad (PW-1) and Sumitra Bai (PW-6). After receiving the report from Beni Prasad (PW-1), he registered FIR. Thereafter, he proceeded to the scene of occurrence. He prepared lash panchanama (Ex. P/2) which indicates that the dead body of the deceased was lying near the house of respondents and in front of the house of Chetram Chourasia.

11. Sukant Banerjee (PW-15) also prepared spot map and mauka muaina panchanama (Ex. P/11). Ex. P/19 and Ex. P/11 both the documents corroborated the above circumstances. In Ex. P/11, Investigation Officer also established that he found blood stains from the place where the dead body was lying till the door of the respondents' house which indicate that the body was dragged from the house of the respondent. He also found blood on the door of the respondents and the blood stains on cheep stone which was washed with water. Investigation Officer found blood inside door towards the room of the respondents. He also found blood under the almirah which indicates that there was an attempt to wash out the blood. He also found blood under the bed and on the cover of rajai. In the opinion of the Investigation Officer, it appears that there was some struggled and scuffle between the parties. Same situation was indicated in the spot map which establish that the crime can be proved by such circumstances. Presence of fresh blood stains at the front and inside the house of respondents itself reveals the guilt and crime of the respondents.

12. We do not find any reason to disbelieve the testimony of 6 Cr. A. No.261/1995 Investigation Officer who impartially performed his duty with sincerity. He had no enmity with the respondents or relationship with the deceased. Therefore, we are inclined to rely upon his testimony. It cannot be brushed aside simply on the basis of conjectures and surmises in favour of the respondents.

13. In case of Sadhu Saran Singh vs. State of U.P. (2016) 4 SCC 397, the Supreme Court has held that :-

"In an appeal against acquittal where the presumption of innocence in favour of the accused is reinforced, the appellate Court would interfere with the order of acquittal only when there is perversity of fact and law. However, we believe that the paramount consideration of the Court is to do substantial justice and avoid miscarriage of justice which can arise by acquitting the accused who is guilty of an offence. A miscarriage of justice that may occur by the acquittal of the guilty is no less than from the conviction of an innocent. Appellate Court, while enunciating the principles with regard to the scope of powers of the appellate Court in an appeal against acquittal, has no absolute restriction in law to review and relook the entire evidence on which the order of acquittal is founded."

14. Similar, In case of Harijan Bhala Teja vs. State of Gujarat (2016) 12 SCC 665, the Supreme Court has held that :-

"No doubt, where, on appreciation of evidence on record, two views are possible, and the trial court has taken a view of acquittal, the appellate court should not interfere with the same. However, this does not mean that in all the cases where the trial court has recorded acquittal, the same should not be interfered with, even if the view is perverse. Where the view taken by the trial court is against the weight of evidence on record, or perverse, it is always open for the appellate court to express the right conclusion after re-appreciating the evidence if the charge is proved beyond reasonable doubt on record, and convict the accused."

15. As discussed above, we find that there is sufficient ground to 7 Cr. A. No.261/1995 reverse the impugned the judgment. Dr. J.P.Parsai (PW-8) examined respondent No. 1 Ballu. He found some injuries on the body of respondent no. 1 which also indicate that before the death, the deceased struggled to save himself from the respondents. Dr. J.P.Parsai took sample of nails of both the hands of the deceased and sent them for FSL examination.

16. Dr. K.P.Singhai (PW-3) conducted autopsy of the deceased. He found the following injuries on the person of the deceased :

1. Stab wound ¾" circular.

2. Stab wound ½" circular .

Bleeding from both the injuries are on the right side chest below the nipple of right side and on the level of the nipple with distance of ½".

3. Stab wound ½"x ¼" skin depth on the right palm dorsally.

4. Stab wound ¾" x ¼" skin depth on the right palm dorsally.

5. Stab wound ½" x ¼" x skin depth on the left arm middle.

6. L.W. ½" x ½" x bone deep on the middle of the skull bone.

17. In the opinion of Dr. Singhai, the deceased died due to shock from the above injuries and rupture of right lung and bleeding within 12-24 hours of the postmortem. In our opinion, all the injures are sufficient to cause death of the deceased immediately.

18. Sukant Banerjee (PW-15) also deposed that he scratched the floor of the respondent's house and took sample vide seizure memo Ex. P/12. On the memorandum of Ballu Ex. P/14, a blood stained knife was recovered from his room behind the suitcase vide seizure memo Ex. P/15. Similarly, Sukant Banerjee recorded the memorandum of respondent No. 2 who gave the statement that he hide a sack behind a kotha of rasoi which was recovered as per seizure memo Ex. P/17. He also found some blood stains on the clothes of respondent No. 1 hence, the pant and shirt of 8 Cr. A. No.261/1995 respondent No. 1 were also seized. Thereafter, all the articles were sent for FSL examination. As per FSL report Ex. P/22, it was confirmed that the soil recovered from the room of the respondent, knife, sack, nails and clothes of respondent No. 1 all contained blood stains. Respondent No. 1 did not offer any explanation with regard to presence of blood on these articles. This is a strong link along with the blood marks of dragging found from the house of the respondent to the spot where the body of the deceased was lying. This establishes that the respondents committed murder of the deceased Mahesh because he had love relation with Anita. After his death, six love letters of Anita were found in the pocket of the deceased which indicates that Anita also wanted to reside with the deceased against the will and consent of her family members.

19. In our opinion, the trial Court ignored the above important facts and wrongly acquitted the respondents. Conviction can be based on circumstantial evidence. There is no rule that the every time direct evidence must be prove the offence.

20. In case of Anjandas vs. State of West Bengal and others, the Supreme Court has held that :-

"If order of acquittal has been made on improper and erroneous appreciation of evidence can be set aside by the appellate Court.

21. Hence, we allow this appeal. The impugned judgment is hereby set aside. Respondent No. 1 Ballu @ Balram is convicted under Section 302 and 201/34 of IPC and respondent No. 2 is convicted under Section 302/34 and 201 of IPC. They are awarded sentence under Section 302 and 302/34 R.I. for life imprisonment with fine of Rs. 1000/-, in default of payment of 9 Cr. A. No.261/1995 fine further RI for three months. They are further awarded sentence under Section 201 and 201/34 for rigorous imprisonment for 7 years with fine of Rs. 3000/-, in default of payment of fine further RI for 5 months. Both the sentences shall run concurrently. Respondents are on bail. Their bail bonds are canceled and they are directed to surrender immediately before the concerned trial Court to undergo the jail sentence, failing which the trial Court shall take appropriate action under intimation to the registry.

22. 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: 2018.04.07 12:11:17
 +05'30'

Unlock Advanced Research with PRISMAI

Madhya Pradesh High Court