Madhya Pradesh High Court
Balchandra vs State Of M.P. on 24 January, 2023
Author: Rohit Arya
Bench: Rohit Arya, Satyendra Kumar Singh
(1)
IN THE HIGH COURT OF MADHYA PRADESH,
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE ROHIT ARYA
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
CRIMINAL APPEAL NO. 308 of 2001
BETWEEN :-
BAL CHANDRA S/O SHRI MAKHAN GURJAR AGE 27
YEARS, RESIDENT OF VILLAGE PAPAWAN, POLICE
STATION DHARNAVADA, DISTRICT GUNA.
.....APPELLANT
(BY MS. CHITRA SAXENA- ADVOCATE THROUGH LEGAL AID)
AND
STATE OF MADHYA PRADESH THROUGH POLICE
STATION DHARNAVADA, DISTRICT GUNA
.....RESPONDENT
(BY SHRI RAJESH SHUKLA - DEPUTY ADVOCATE GENERAL)
----------------------------------------------------------------------------------------
Reserved on : 05/01/2023
Pronounced on : 24/01/2023
This appeal having been heard and reserved for judgment,
coming on for pronouncement this day, Hon'ble Shri Justice Rohit
Arya pronounced the following:
JUDGMENT
This appeal, under Section 374 of the Cr.P.C., arises out of the (2) judgment dated 30.03.2001 passed by I Additional Sessions Judge, Guna in Sessions Trial No.353/2000, whereby the appellant stands convicted for the offence punishable under Section 302 IPC and sentenced to undergo imprisonment for life with fine of Rs.30,000/-, in default to suffer additional SI for six months. However, co-accused Makhan has been acquitted of the offence punishable under section 302/34 and 302/115 of the IPC.
2. Prosecution story, as unfolded during trial, is that on 01.09.2000 Bhujbal Singh (PW-5), father of Gabbar Singh lodged FIR (Ex.P/3) at Police Station Kotwali, Guna to the effect that on 31.08.2000 his son Gabbar (since deceased), aged about 15 Years, had gone for grazing cattle at a plateau located above a pond at village Papavan Kali Kho. The complainant was apprised by Premnarayan (PW 19) that his son Gabbar had been assaulted by Balchandra and Makhan Gujar while grazing cattle and that he was at Guna Hospital in an unconscious state. When complainant reached Guna Hospital, he found that his son was restless and unable to speak. Complainant was informed by his wife Jhuniyabai (PW4) that Ramveer (PW1) and Pappu (PW3) had brought Gabbar home from the forest. At that time Gabbar had apprised her that accused Balchandra had taken his soap and when he asked it back, Makhan exhorted Balchandra to beat him, whereupon Balchandra, with an (3) intention to cause his death, inflicted Lathi blow on the right side of his leg, on back and on head due to which he fell down on the ground. After this Gabbar was hospitalized and next day i.e. on 01.09.2000, he succumbed to the injuries suffered by him. The incident was witnessed by Ramvir (PW1), Omkar(PW2) and Pappu (PW3), who were grazing cattle near the place of incident.
After being brought home by Ramvir (PW1), Omkar (PW2) and Pappu (PW3), Gabbar narrated the incident to his mother Jhuniyabai (PW4) in presence of Mansingh (PW6) and Komal Singh (PW7) and thereafter was rendered unconscious. He was taken by them to Hospital at Guna, from where he was referred to Gwalior hospital, but succumbed to the injuries thus caused in the way to Gwalior Hospital. From there, his dead body was brought back to Guna Hospital. Dr. M.K. Jain (PW18), posted at Guna Hospital, sent a written intimation pertaining to the admission and death of Gabbar on 01/09/2000 (Ex.P16) on the basis of which Morgue Intimation (Ex.P-17) was registered and since the spot was situated within the territorial jurisdiction of Police Station Dharnavada, FIR (Ex.P-18) was registered at Police Station Dharnavada.
During the course of investigation, MLC (Ex.P-8) of Gabbar was done and after his death, post-mortem examination was conducted vide Ex.P-14. Viscera and clothes of deceased were seized vide seizure memo (4) (Ex.P/15). Spot map (Ex.P/1) was prepared by the Police and spot map (Ex.P/13) was prepared by the Patwari. A soap was seized from Jhuniya Bai (PW-4) vide seizure memo (Ex.P/2). A Lathi was recovered from Balchandra vide seizure memo (Ex.P/12). Statements of the witnesses were recorded.
After completion of the investigation, charge-sheet against the accused persons was submitted before the court of competent criminal jurisdiction who committed the case to the Court of Sessions for trial.
3. On being charged with the offences punishable under Section 302 and 302 read with Section 34 of the IPC, the appellant abjured the guilt. In the examination under section 313 of the Code of Criminal Procedure, he pleaded false implication.
4. To bring home the charges, prosecution examined as many as 25 witnesses including eye-witnesses Ramvir (PW1), Omkar (PW2), Pappu (PW3), while only one witness was examined in defence.
5. On consideration of the evidence on record, the learned trial Judge, for the reasons recorded in the impugned judgment, found the appellant guilty of the offences charged with. He, therefore, convicted and sentenced him as indicated hereinabove, though acquitted co-accused Makhan of the charges levelled against him.
6. Before adverting to the rival contentions, it would be expedient to (5) consider the medical evidence available on record.
MLC of Gabbar was conducted by Dr.Anil Vijayvargiya (PW9). Vide Ex.P/8, who noted following injuries on his body:-
1. Contusion over left occipital region 6 x 4 cm. Advised X-ray Skull.
2. Contusion right scapular region 8 x 3 cm, Advised X-
ray.
After his death, post mortem examination of deceased was conducted by Dr.P.K.Pathak (PW16), who noted following injuries on his body vide Ex.P/14 Contusion left parieto-occipital region of size 6 cm x 5 cm (5 cm above left ear, 3 cm behind left ear.
On exploration, hematoma present in subcutaneous tissue and galea.
Fracture of left side parieto-occipital region, antero posterior dorsal, size 8 cm in length.
On exploration of skull, left subdural hematoma on left parieto-occipital region of size 6 cm x 4 cm x 2 cm.
Contusion on right scapular region of size 8 cm x 3 cm. On internal examination, fracture of left parieto-occipital region was noticed. All the injuries were found to be ante mortem in nature, caused by hard and blunt object. In the opinion of doctor, cause of death was cardio-respiratory failure, as a result of head injury due to subdural haematoma. Duration of death was within 24 hours of the post mortem examination.
7. Assailing the legality, validity and propriety of the impugned (6) judgment, learned counsel for the appellant has made the following submissions:-
(i) The impugned judgment is based upon what is termed as mis-appreciation of the evidence on record, inasmuch as material exculpatory evidence has not been considered by the learned trial Court in right perspective.
(ii) The eye-witness account is not reliable, inasmuch as PW1 Ramvir Singh in paragraph 2 has deposed that after taking bath along with the deceased, he had gone for grazing cattle while in paragraph 7 he has deposed that deceased himself had told him about the injuries having been inflicted by the appellant. So far as presence of other eye-witnesses namely Omkar (PW2) and Pappu (PW3) is concerned, he has deposed that when Omkar and Pappu reached the spot, appellant was not there and had run away before they reached the spot. PW2 Omkar has made material improvements in his testimony. In the police statement, he has not stated that he had witnessed the incident, while in his examination before the Court, he has come forward with the case that the incident had taken place before him. Hence, all the eye-witnesses have improved their case at the trial .
(iv) The report of the incident was lodged belatedly and no explanation has been offered for the delay. There is no compliance of (7) S.157, Cr.P.C. Besides, the ocular evidence is belied by medical evidence, inasmuch as all the eye-witnesses have stated that appellant had inflicted three Lathi blows to the deceased, but in the MLC and post mortem examination, only two injuries have been found.
(v) The ingredients of S.300 are not available in the instant case, as there is nothing on record to show that there was any intention of causing death of deceased. There was no enmity between the parties.
Even otherwise, the case does not reach beyond the purview of S.335, IPC as there was provocation by the deceased, which led to alleged assault on him.
With the aforesaid submissions, it is contended that conviction of the appellant cannot be sustained in the eyes of law and he deserves to be acquitted.
In response, learned Public Prosecutor, while referring to the incriminating pieces of evidence on record, submitted that the conviction is well merited.
8. Heard, learned counsel for the parties.
9. PW1 Ramveer Singh is an eye-witness. He has deposed before the trial Court that on the date of incident, he along with Omkar, Pappu, deceased Gabbar and appellant Ballu had gone to the forest for grazing cattle. Gabbar and this witness had taken bath in a brook. Thereafter, an (8) altercation ensued between appellant and deceased on soap while taking bath, in the course of which appellant gave three Lathi blows to the deceased, one on each - head, back and leg. After suffering the assault, deceased had walked home with this witness, Omkar (PW2) and Pappu (PW3). In paragraph 3, he has deposed that from home they had taken Gabbar to Guna Hospital in a tractor. Pappu (PW3), Komal (PW7) and Jhuniya Bai (PW4) were also with them and from there he was referred to Gwalior hospital. However, in the way to Gwalior, Gabbar succumbed to the injuries caused. He has further reiterated that the altercation had ensued on the issue of soap, in the course of which, appellant had assaulted Gabbar and that at the time of incident, no one else was there with appellant Balchand. In paragraph 5 of his cross-examination, he has deposed that after bathing he had gone towards the cattle and when he rushed back, the fight between the appellant and deceased was going on and both of them were grappling with each other and appellant had assaulted Gabbar. In paragraph 6, he has deposed that appellant was asking for the soap of Gabbar, but Gabbar denied, on which appellant lifted it and thereafter the quarrel started. He has further deposed that he had reached first and thereafter Omkar and Pappu had arrived and by the time they had come, Ballu had fled away. In paragraph 7, he has deposed that in the way, Gabbar had told him that the fight had occurred on soap (9) during which Ballu had assaulted him by Lathi. In answer to a specific query, he has categorically deposed that he had seen the appellant assaulting the deceased by Lathi. In paragraph 9 he has deposed that deceased had informed him that appellant had given him three Lathi blows.
10. PW2 Omkar has deposed that on the date of incident, he had gone to the forest along with Pappu, Ramveer and Balchand. While Gabbar was taking bath, appellant asked for soap from him. On being denied by Gabbar, appellant started abusing him, on which Gabbar said that why he was bullying him and when his father had been assaulted by the Padris why didn't he show his hooliganism there. Thereafter, the quarrel started. In paragraph 3 he has deposed that appellant had assaulted the deceased by Lathi on his thigh, back and head. Thereafter, he, Pappu and Ramvir had taken Gabbar home. In paragraph 5 of his cross-examination, he has clarified that he was near the place where Gabbar was taking bath. He has denied the suggestion that Ramvir had reached first and then he had arrived and by the time he had come, appellant had already fled away. He reiterated that he had seen appellant and Gabbar Singh fighting. In paragraph 6, he has denied the suggestion that when he reached the spot, the fight was over and has deposed that appellant was assaulting Gabbar. He had not asked Gabbar about the cause of fight, but Gabbar had (10) informed about the same at home. He has further denied the suggestion that Gabbar had fallen unconscious at home and did not speak anything till death. In paragraph 7, he has deposed that Gabbar had received injuries on his thigh, back and head, but there was no bleeding from any of the injuries. Although there are certain omissions in his case diary statement (Ex.D/2), but the same are not material and do not go to the root of the case.
11. PW3 Pappu had also gone to the forest for grazing cattle along with deceased Gabbar, Omkar (PW2), Ramveer (PW1), appellant Ballu and Makkhan on the date of incident. He has deposed that he had seen deceased Gabbar taking bath. Appellant Balchandra asked for soap, which was denied by Gabbar Singh, on which appellant started abusing him. In paragraph 2 he has deposed that Gabbar had said to the appellant that his father had been assaulted by the Padris, at that time why he had not shown his Dadagiri and that now why he was showing his Dadagiri. This witness was grazing cows nearby and was able to hear the talks. He has deposed that Makhan had exhorted appellant to assault Gabbar, upon which appellant Ballu gave free Lath blows to Gabbar, one on thigh, another on right leg and the third one on head. This witness was standing nearby and had seen the appellant assaulting the deceased. Thereafter the appellant fled from the spot. Thereafter, he alongwith Ramveer and (11) Omkar had brought Gabbar home, where Gabbar's mother, Master Sahab, Komal Singh (P.W.7) and Mansingh (P.W.6) were there. After leaving Gabbar, this witness returned and later on came to know that Gabbar had expired. In paragraph 4 of his cross-examination, he has denied the suggestion that Ramveer had reached first and clarified that they all had reached the spot concomitantly. He further denied the suggestion that when he reached the spot, appellant was running and has deposed that he had seen the appellant assaulting the deceased.
12. P.W.4 Jhunia Bai is the mother of the deceased. In paragraph 2 she has deposed that Omkar, Ramveer and Pappu had brought Gabbar home. Gabbar was conscious but his condition was not good. On a specific query she has deposed that Gabbar had informed her that altercation had ensued on the issue of soap and that appellant Balchandra had assaulted him on exhortation of his father Makhan Singh. Gabbar had informed her that he had told appellant Balchandra that he had not shown his Dadagiri to the Pardis and that he was showing the same to him. On this he was assaulted on head by the appellant on right leg, right hand and head. In paragraph 3, she has deposed that when Gabbar had narrated the aforesaid facts, at that time Mansingh (PW6) and Komal Singh (PW7) were also there. In paragraph 7 of her cross-examination, she has denied the suggestion that after returning home, her son had not talked with her (12) and was rendered unconscious. In paragraph 8, she has deposed that after leaving Gabbar at home, Ramvir (PW1), Omkar (PW2) and Pappu (PW3) had returned and did not wait at her house. She was also informed by Ramvir, Omkar and Pappu that Balchand had assaulted Gabbar.
The evidence of PW4 Jhuniyabai is corroborated by the evidence of Mansingh (PW6), who has deposed that on 31/8/2000 while he was teaching children in the compound of Bhujbal Singh (PW5) and Jhuniyabai was also there, at that time Gabbar Singh was brought by Ramveer, Pappu and Omkar. He has further deposed that before him, Jhuniya Bai had asked about the incident, upon which Gabbar had informed that the quarrel had occurred on the issue of soap and that he had told the appellant not to show him Dadagiri and when his father had been beaten by the Pardis, then why had he not shown Dadagiri, upon which appellant had assaulted him on head. Thereafter Gabbar was rendered unconscious and was taken in a Tractor to Guna by this witness, Komal Singh (PW7), Pappu (PW3), Ramvir (PW1) and Jhuniyabai (PW4), from where he was referred to Gwalior Hospital. In paragraph 7 of his cross-examination, he has clarified that when Jhuniyabai had asked Gabbar about the incident at home, at that time Pappu (PW3), Omkar (PW2) and Ramvir (PW1) were not there. In paragraph 8 he has further deposed that Gabbar was not unconscious at that time, but had lost his (13) consciousness after 45 minutes after narrating the entire incident.
Similarly, the evidence of PW4 Jhuniyabai is also corroborated by the evidence of Komal Singh (PW7) who has also deposed the manner in which Gabbar had narrated the incident to his mother after having been brought home. In paragraph 8 of his cross-examination, he has clarified that Gabbar had remained conscious for about one hour after being brought home and had narrated about the incident after being asked.
13. PW5 Bhujbal Singh is the father of the deceased. He has deposed that he was grazing cattle when he was informed by Premnarayan (PW19) that there had been a fight and his son was admitted in a hospital. When he reached Guna Hospital, he found that his son Gabbar was lying restless. His wife Jhuniyabai (PW4), Mansingh (PW6), Pappu (PW3), Ramvir (PW1), Omkar (PW2) and Komal (PW7) were also there. His wife Jhuniyabai informed him that she had been told by Gabbar that appellant had given three Lathi blows to him.
The evidence of Bhujbal Singh is corroborated by the evidence of Premnarayan (PW19), who has deposed that he had informed Bhujbal about the incident and had taken him to Guna Hospital. He has also deposed that the had met Gabbar's mother, Komal Singh, Pappu, Ramvir and Arjun Singh while they were taking Gabbar in a Tractor to hospital and had asked him to go and inform Bhujbal Singh.
(14)
14. PW21 Rasid Khan is the Head Constable, who has proved recording of FIR (Ex.P/18). PW22 Siddhnath Singh is the Investigating Oficer. He has, inter alia, proved spot map (Ex.P/1), seizure memo of soap recovered from Jhuniyabai (Ex.P/2), arrest memos of accused persons (Ex.P/9 and P/10), discovery memo of appellant (Ex.P/11) and corresponding seizure memo of Lathi (Ex.P/12) from the appellant. PW10 Prahlad and PW13 Ram Singh are the witnesses of arrest memos (Ex.P/9 & Ex.P/10) and discovery and seizure memo of Lathi (Ex.P/11 & Ex.P/12) and has proved the same. PW11 Daulatram and PW12 Ajmer Singh have proved Panchayatnama Lash (Ex.P/4).
Devi Singh (DW1) was examined in defence to prove the plea of alibi in respect of acquitted co-accused Makhan.
15. The contention of learned counsel for the appellant that in fact Ramvir (PW2), Omkar (PW2) and Pappu(PW3) had not witnessed the incident as in paragraph 2 Ramvir has deposed that after taking bath he had gone for grazing cattle and with regard to presence of Omkar (PW2) and Pappu (PW3) has stated that they had come while the appellant was running away, does not inspire confidence in the wake of overall testimony of these three eye-witnesses which is cogent and corroborative on material points. In paragraph 2 itself Ramvir has categorically (15) deposed that he had seen appellant assaulting the deceased by Lathi and in paragraph 5 of his cross-examination has reiterated that at the time he had reached the spot, the fight was going on and he had witnessed the incident. Omkar (PW2) in paragraph 6 has categorically denied the suggestion that by the time he came, the fight was over and has stated that the quarrel was going on. Similarly Pappu (PW3) in paragraph 4 of his cross-examination has deposed that he, Ramvir, Omkar and were at a distance of about only 20 paces from the place where the fight was going on. He has also categorically denied the suggestion that when he reached the spot appellant had fled away. In view of the fact that all three of them viz. Ramvir (PW1),Omkar (PW2) and Pappu (PW3) had gone together along with appellant and deceased for grazing cattle and the fight took place in their close proxmitiy of only about 20 paces, the contention of learned counsel for the appellant that they had not witnessed the incident is far from convincing. In fact the eye-witness account is cogent and consistent on material points. The prosecution version further stands corroborated by the testimony of Jhuniyia Bai (PW4), Man Singh (PW6), and Komal Singh (PW7) before whom Gabbar had stated the manner in which he was assaulted by the appellant before getting unconscious. It is well settled that minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should (16) not be taken to be a ground to reject the prosecution evidence. Besides a close relation like mother and father would be the last to screen the real culprit and falsely implicate an innocent person.
Similarly, the other contentions with regard to delayed FIR or non compliance of S.157, Cr.P.C., lack substance, inasmuch as the incident is dated 31/8/2000 at about 3 PM and the FIR was lodged by father of deceased the very next day i.e. on 1/9/2000. It is noteworthy that father of deceased Bhujbal was informed about the incident Premnarayan (PW19) when he was grazing cattle and he immediately rushed to the hospital at Guna where he came to know about the entire incident from his wife. At Guna Hospital, he was told by the doctor to take his son to Gwalior Hospital, upon which he was taking Gabbar to Gwalior Hospital but in the way ahead of Shvipuri, Gabbar succumbed to the injuries suffered by him. Thereafter dead body of Gabbar was brought back to Guna Hospital and next day FIR was lodged. Thus looking to the entire sequel of incidents, it cannot be said that FIR was at all delayed, much less inordinately. Likewise, compliance of section 157, Cr.P.C. is well explicit from evidence of Investigating Officer Siddhath Singh (PW22).
16. In view of the aforesaid, we are of the considered view that the learned trial Court has threadbare appreciated the evidence and recorded cogent and impregnable findings with regard to complicity of the (17) appellant in the crime.
17. This brings us to the question as to what was the nature of offence committed by the appellant.
18. It can easily be discerned from the prosecution story as unfolded during trial and the evidence brought on record that the incident occurred when deceased was taking bath and was asked for soap by the appellant. During altercation, deceased asked appellant as to why he was bullying him and why he had not adopted the same course when his father had been assaulted by the Pardis. Being provoked and enraged, appellant inflicted Lathi blows on the deceased. Thus the element of premeditation to commit homicidal death of deceased cannot be attributed to the appellant and it can easily be seen that the death was caused in a sudden fight on grave and sudden provocation given by the deceased, or in other words, the act of the appellant squarely falls within Exception 1 as appended to S.300 of the IPC. There is slight variation in the ocular and medical evidence. It is well settled that ocular evidence is the best evidence unless there are reasons to doubt it (Pruthiviraj Jayantibhai Vanol vs Dinesh Dayabhai Vala (2021 SCC Online SC 493, referred to). In the instant case, both ocular and medical evidence are largely consistent as to the fatal head injury. As per ocular evidence only one blow was given on vital part viz. head of the deceased which resulted in (18) fracture and the other two blows were allegedly caused on non-vital parts. Thus it cannot be said that the appellant had the intention of causing death though he certainly possessed the knowledge that the head injury was likely to cause death. Thus, in our opinion, the act of the appellant falls within the ambit of S.304 Part II of the IPC.
19. As regards sentence, appellant has already suffered about 1 year two months and 24 days of custody including incarceration period during trial. The incident is of the year 2000 and about 22 years have elapsed. During this period he has suffered the ordeal of trial and appeal. We do not think that at this stage any useful purpose would be sub-served by sending him back to jail and, in our considered opinion, the custodial sentence deserves to be reduced to the period already undergone, following the principles of law laid down by the Apex Court in Mohinder Pal Jolly v. State of Punjab [AIR 1979 SC 577], Yogendra Morarji v. State of Gujarat (AIR 1980 SC 660), Sarup Singh v. State of Haryana (AIR 1995 SC 2452) and Kuldeep Singh v. State of Haryana (AIR 1996 SC 2988), wherein for conviction under S.304 of the IPC, the custodial sentences were reduced to the period already undergone ranging from six months to two years.
Accordingly, the conviction of the appellant from section 302 of the IPC is altered to one under section 304 Part II of the IPC and the (19) custodial sentence is reduced to the period already undergone although the fine sentence with corresponding default stipulation, as awarded by the trial Court, is maintained. Rest of the impugned judgment is kept intact.
Appellant is on bail. His bail bonds stand discharged. He is directed to deposit the fine amount, if not already deposited, within fifteen days from today failing which he shall undergo the default sentence as awarded by the trial Court.
A copy of this order along with the record of the trial Court be sent to the trial Court for compliance.
(ROHIT ARYA) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
(and)
ANAND
SHRIVASTAVA
2023.01.25
10:56:33 +05'30'