Shivprsad Panika @ Lallu vs The State Of Madhya Pradesh on 19 June, 2018

[Cites 8, Cited by 20]

Madhya Pradesh High Court

Shivprsad Panika @ Lallu vs The State Of Madhya Pradesh on 19 June, 2018

1. This criminal appeal under Section 374 (2) of the Cr.P.C. filed on behalf of appellant/accused Shivprasad Panika is directed against the judgment dated 27.08.2008 passed by the Court of Sessions Judge, Shahdol, in S.T.No.50/2007, whereby accused Shivprasad Panika was convicted under Section 302 of the IPC and has been sentenced to undergo rigorous life 2 Cr.A.No.2270/2008 imprisonment and a fine in the sum of Rs.1,000/-. In default of payment of fine, he has been directed to undergo further rigorous imprisonment for a period of 6 months.

2. The prosecution case before the trial Court in brief was that deceased Duiji Bai was a 70 years old woman. She lived with her grandson, first informant, Santosh. On 25.12.2006, she had gone to her daughter Premvati's (PW-1) house situated in the same village, Gudhha. She had gone to take bath in Ramdaha tank. She returned at about 11:00 a.m.. Thereafter, she took her meals and was sitting in the courtyard. At around 02:00 p.m., accused Shivprasad took her to his house alleging that Duiji Bai had practiced witchcraft upon Sushila, wife of appellant Shivprasad. Premvati stopped the accused from doing so; however, accused Shivprasad took her to his house; whereon, Premvati also followed Shivprasad and Duiji Bai to Shivprasad's house. Premvati's daughter-in-law Ramrati (PW-5) also went after them. Duiji Bai sat in the courtyard of Shivprasad, who asked her to relieve Sushila of the ill effects of witchcraft. Duiji Bai refused to do so; whereon, Shivprasad brought away a honey flower stick (Mahua ki lakdi) from his house and started to beat Duiji Bai. Ramrati tried to protect Duiji Bai; however, she fell down and lost consciousness. Sushila, wife of Shivprasad and Phoolbai, elder sister-in-law (Salhaj) of Shivprasad, were also present on the spot. Premvati went to Duiji Bai's grandson Santosh and narrated the incident to him. He arrived on the spot and also brought Bodda Singh and Ishwardeen, watchmen of the village, on the spot. After that, Premvati and Santosh picked deceased Duiji Bai and 3 Cr.A.No.2270/2008 brought her to Premvati's house. At around 04:30 or 05:00 p.m., Duiji Bai expired. As there was no conveyance available from Village-Gudhha to Budhhar in the evening, the first information report was lodged at around 01:00 p.m., the next day. During investigation, a honey flower stick was seized on the disclosure statement made by accused Shivprasad from his house. After investigation, the charge-sheet was filed.

3. Accused abjured the guilt and claimed to be tried. In the examination under Section 313 of the Cr.P.C., he stated that he never leveled any allegations on deceased Duiji Bai that she had practiced witchcraft upon his wife Sushila. He had never gone to Premvati's house to call Duiji Bai. He had not beaten her. He is innocent. He has been falsely implicated by the family members on account of a dispute regarding agricultural land.

4. After trial, the Court observed that the prosecution has succeeded in proving beyond reasonable doubt on the basis of ocular and medical evidence that the accused suspected that deceased Duiji Bai had practiced witchcraft upon his wife Sushila. As a result, she was feeling sick; therefore, he had taken Duiji Bai to his house to undo the same. When Duiji Bai denied that she had practiced witchcraft upon Sushila, appellant was enraged and assaulted deceased her with honey flower stick and inflicted several blows. As a result, two of her ribs broke. Her right lung was punctured and liver was ruptured. Consequently, she succumbed to her injuries two hours later; therefore, accused appellant Shivprasad was convicted for committing murder of Duiji Bai and was sentenced as above.

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5. Learned counsel for the appellant accused Shivprasad has assailed the findings recorded by the trial Court mainly on following grounds:

(i) As per prosecution story, there were at least 3 eye witnesses namely Premvati (PW-1), Ramrati (PW-5) and Phool Bai (PW-8). Out of them, Ramrati (PW-5) has stated that she had reached the spot after the incident had occurred and Phool Bai has turned outright hostile, claiming that the appellant has been falsely implicated in the matter.

(ii) The conviction is based solely upon uncorroborated testimony of Premvati (PW-1), who is a related witness. There are numerous material contradictions and omissions between her Courts statement and the statement given to police. Even Premvati has stated that at the time of the incident, there was no dispute regarding practice of witchcraft; as such, there was no motive for the accused appellant to have assaulted the deceased.

(iii) The witnesses have stated that the weapon of offence, namely honey flower stick, was not seized at the instance of the appellant from his house but was seized at the instance of Premvati (PW-1) from the house of one Pannalal.

(iv) Even if it is assumed for the sake of arguments that the appellant had actually assaulted the deceased, at worst, his act would fall under the purview of Section 304 (Part-II) of the IPC and not under Section 302 of the IPC.

- therefore, it has been prayed that appeal be allowed and the appellant be acquitted.

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6. Now the Court shall proceed to deal with each argument one after the other.

7. As per the prosecution case, there were three eye witnesses to the incident namely Premvati (PW-1), Ramrati (PW-5) and Phool Bai (PW-8). Premvati is daughter of deceased Duiji Bai and Ramrati is Premvati's daughter-in-law. Phool Bai is elder sister-in-law (Salhaj) of appellant Shivprasad. Though, Premvati has supported the prosecution case, Ramrati has only partly supported it stating that she had reached the spot after the incident had taken place. Phool Bai has claimed that after consuming liquor, deceased Duiji Bai had gone and laid in front of appellant's door. Thereafter, Santosh took her to his house and Premvati, Duiji Bai's daughter had actually killed the deceased Duiji Bai after making her consume liquor. Shivprasad has been falsely implicated in the case. Phoo Bai (PW-8) was declared hostile by the prosecution.

8. The gist of Premvati's testimony is that on the date of incident, her mother Duiji Bai had gone to her house. At about 11:00 a.m., she had gone to Ramdaha tank to take bath. After returning from Ramdaha's tank, she was sitting in her courtyard. At about 12-01 p.m., appellant Shivprasad came and asked her mother to accompany him to his house. When Premvati asked him as to why he was taking her mother Duiji Bai to his house, he did not disclose any reason. When her mother Duiji Bai went along with appellant Shivprasad, she also followed them to Shivprasad's house. Duiji Bai sat in the courtyard of Shivprasad. Thereafter, Shivprasad tried to throttle Duiji Bai. He forced her into a lying position and beat her with 6 Cr.A.No.2270/2008 a honey flower stick. At the time of beating her, he was saying that Duiji Bai had set ghost upon Shivprasad's wife, Sushila; however, Premvati tried to protect her mother and bring her back but Shivprasad did not let her do so. He again tried to throttle Duiji Bai. Thereafter, Duiji Bai fell down but she was faintly breathing. At the time of the incident, Phool Bai and Shivprasad's brothers-in-law's brother's-in-law, who was resident of Village- Bokramar, were present. Her daughter-in- law Ramrati had also reached the spot after her. The person, who was resident of Bokramar, was threatening to kill Ramrati and Premvati. He had pushed the bicycle against Ramrati. As a result, Ramrati had started to bleed. Due to assault by appellant Shivprasad, Duiji Bai had sustained injuries to her lower back. Her ribs had fractured and her liver had ruptured.

9. Ramrati (PW-5) has stated that she had followed her mother-in-law Premvati and Duiji Bai to Shivprasad's house; however, by the time, she reached there, the incident had already occurred. She saw Duiji Bai lying in the courtyard of appellant Shivprasad but she did not see any injury on her person. Appellant Shivprasad was also standing there. Later, she learn't that Shivprasad had assaulted Duiji bai with stick alleging that Duiji Bai had practiced witchcraft and as a result, his wife Sushila had fallen sick. Thereafter, Premvati and Santosh had brought the deceased Duiji Bai to Premvati's house.

10. Santosh (PW-7) has stated that after the incident, Premvati had run to his house and told him that appellant Shivprasad was killing Duiji Bai with a honey flower stick after 7 Cr.A.No.2270/2008 calling her to his house. Thereafter, he went to Shivprasad's house and found Duiji Bai lying at his door. When he asked Shivprasad as to why he had beaten Duiji Bai, Shivprasad had told him that he had beaten Duiji Bai because of witchcraft. Shivprasad also told him that he had beaten Duiji Bai and Santosh could do whatever he wanted in this regard. Thereafter, he called some villagers to show them Duiji Bai's condition. Thereafter, on the advice of the villagers, he took Duiji Bai to his house. For about an hour and half Duiji Bai was breathing but thereafter she expired. He called the Sarpanch of the village, who adviced him to report the matter in the police station.

11. Bodda Singh (PW-2) and Ishwardeen (PW-3) have stated that on the date of the incident, Santosh told them that Shivprasad had beaten his grandmother Duiji Bai; whereon, they had gone to Shivprasad's house to see Duiji Bai along with other villagers. At that time, Duiji Bai had sustained injuries to her lower back and thigh. She was unconscious.

12. A perusal of the record reveals that the conviction is based mainly upon the ocular testimony of Premvati, who was daughter of the deceased. It is true that she is a related witness; however, her presence on the spot was natural. Since, appellant Shivprasad took her mother to his house without offering any explanation, she must have been worried about her safety and it was natural for her to have followed Shivprasad and her mother to Shivprasad's house. In any case, it is highly unlikely that Premvati being daughter of the deceased, would allow the real culprit to scot free and falsely implicate the accused on account 8 Cr.A.No.2270/2008 of some enmity regarding agricultural land. No such enmity has been proved either.

13. Learned counsel for the appellant has invited attention of the Court to numerous discrepancies between the Court statement and police statement of Premvati. It is true that Premvati had failed to disclose in her police statement (Ex.D/1) that the accused was trying to throttle the deceased and he was beating her with fisticuffs. She had also failed to disclose that she tried to bring the deceased home but the accused had stopped her from doing so. She had also not stated in Exhibit D/1 that the accused was saying that deceased Duiji Bai had set ghost upon his wife Sushila while beating her. She had also not disclosed in her police statement that Shivprasad's brothers-in- law's brother-in-law, who was resident of Bokramar, had threatened to kill her and her daughter-in-law and had pushed bicycle against her daughter-in-law resulting in bleeding. She had also not disclosed in her police statements that ribs of Duiji Bai had fractured and her liver had ruptured. However, it may be noted that aforesaid omissions relate to details and particulars of the incident. They do not affect the core of the prosecution story that the appellant had taken the deceased to his house and had beaten her with a honey flower stick on the suspicion that she had practiced witchcraft upon his wife; therefore, the Court statements of Premvati (PW-1) is not dented due to aforesaid omissions.

14. It is also true that in spite of being daughter-in-law of Premvati (PW-5), Ramrati has not fully supported the prosecution case but a careful examination of prosecution case 9 Cr.A.No.2270/2008 and the court statement of Ramrati and Premvati reveal that though she had followed Shivprasad, Duiji Bai and Premvati to Shivprasad's house but she was lagging behind and by the time she reached the spot, the incident had already occurred. This aspect of the matter only demonstrates truthfulness of her version because in spite of being related to the deceased, she has not displayed any undue enthusiasm in supporting the prosecution story. If she wanted to tell a lie, she could easily have converted herself into an eye witness and supported the prosecution case to the hilt; therefore, her Court statement and that of Premvati cannot be disbelieved simply because she was not present when Duiji Bai was being actually beaten by Shivprasad.

15. Moreover, the statement of Premvati (PW-1) has been fully corroborated by medical evidence. Dr. R.S. Parihar (PW-9) had found contusions admeasuring 12 x 12 cms on the lower back of the deceased. He had also found that her 9 th and 10 th ribs were fractured and there was also a contusion on her liver. Aforesaid injuries were ante-mortem in nature and were caused by hard and blunt object.

16. It is true that the FIR has been lodged after a considerable delay but in the FIR itself (Ex.D/6), it has been explained that the first information report could not be lodged the same evening because no conveyance was available. The first informant Santosh (PW-7) had further explained before the Court that he could not go to Budhhar to lodge report because there was no conveyance available in the evening; therefore, he went to the police station the next morning. The police station 10 Cr.A.No.2270/2008 is about 26 kms. away from the place of the incident. Investigating Officer, Hitendra Nath Sharma (PW-11) had stated that he is not aware whether there are any private taxies available after 5 p.m. from Gudhha to Budhhar but he has stated that the family members of the deceased had brought the dead body for post-mortem examination by placing the same on bicycle with the help of a wooden ladder like structure, which indicates that conveyance is not easily available between Gudhha and Budhhar; as such, eye witness account of Premvati cannot be disbelieved solely on the ground of delay in lodging the FIR.

17. It is also true that as per the prosecution case, the honey flower stick by which the deceased was killed, was seized from the house of the appellant at his instance; however, the prosecution witnesses have admitted that actually it was seized from the house of one Pannalal at the instance of Premvati. It may be noted in this regard that this case is not based upon circumstantial evidence. It is based on ocular testimony, which has been found to be reliable. In these circumstances, this discrepancy in seizure of weapon of offence is not material.

18. On the basis of foregoing discussion, this Court is of the view that the trial Court committed no error in arriving at the conclusion that the deceased had died as a result of injuries inflicted upon her by the appellant by a honey flower stick.

19. However, the crucial question that remains for consideration is whether the act of the appellant falls under the purview of Section 302 of the IPC or 304 (Part-II) thereof ?

11 Cr.A.No.2270/2008

20. In this regard, learned counsel for the appellant has invited attention of the Court to the judgments rendered by the Supreme Court in the cases of Gudu Ram Vs. State of Himachal Pradesh, (2013) 11 SCC 546, Manjeet Singh Vs. State of Himachal Pradesh, (2014) 5 SCC 697, Chaitu and others Vs. State of Uttar Pradesh, (2014) 11 SCC 218, Jhaptu Ram Vs. State of Himachal Pradesh, (2014) 12 SCC 410, Litta Singh and anr. Vs. State of Rajasthan, (2015) 15 SCC 327, Shahjahan and others Vs. State of Maharashtra, (2017) 13 SCC 481 and Atul Thakur Vs. State of Himachal Pradesh, (2018) 2 SCC 496. On the basis of aforesaid authorities, she has contended that at worst, the act of the appellant would fall under the category of offence punishable under Section 304 (Part-II) of the IPC.

21. The post-mortem reveals that the deceased Duiji Bai was around 70 years old. Ramrati (PW-5) has admitted in her cross- examination in paragraph no.6 that the deceased was quite weak and frail. Though, Premvati has admitted in cross-examination that there was no dispute regarding witchcraft; however, in her examination-in-chief, she has stated that at the time of beating, Duiji Bai, Shivprasad was alleging that she had set ghost upon his wife Sushila. Thus, it is clear that the element of witchcraft was involved in the case; otherwise, there was no reason for Shivprasad to have assaulted the deceased. The sole eye-witness Premvati (PW-1), has stated that the appellant assaulted the deceased with stick. She has not stated that any injury was inflicted to a vital part of her body. Dr. R.S. Parihar (PW-9) has deposed that there were contusions admeasuring 12 x 12 cms.

12 Cr.A.No.2270/2008

between lumbar and dorsal region of her spinal cord. Her 9 th and 10 th ribs were fractured and there was clotted blood admeasuring 5 x 3 inches in her right lung. Her abdomen was filled with blood and a contusion admeasuring 3 x 4 cms. with clotted blood, was also present on her liver. She had died due to hemorrhage from her lung and liver and the nature of the death was homicidal. In cross-examination, Dr. R.S. Parihar has stated that vital organs of the body like spleen, kidney, liver, lungs and heart are located under the back and waist; therefore, if a heavy blow is delivered by a stick on the back, it may cause death.

22. It is clear from the aforesaid evidence that the offence was not premeditated. Initially there was no intention on the part of the accused to commit murder of the deceased. He suspected that the deceased had practiced witchcraft upon his wife making her sick. He probably wanted the deceased to the process. Undo the effect. As a result, probably, some altercation ensued whereafter, he delivered a blows with a stick to her back and lumbar region. The weapon that he selected for assaulting the deceased was a two feet long stick, which can hardly be said to be a deadly weapon. The part of the body that was selected for delivering blows was back and lumbar region. Though vital organs are located under the back and lumbar region of the body, these are not the parts which are ordinarily selected for causing death because the chances of the deceased surviving would be quite high. Appellant had gone inside his house to pick the stick. If he really intended to kill the deceased, he would have picked a sharp edged weapon but he did not do so.

13 Cr.A.No.2270/2008

Even with the stick, he could have inflicted injuries on the head rather than the back. The doctor has not specifically stated that the injuries were sufficient in the ordinary course of nature to cause death. It appears that the intention was clearly to punish the deceased and not to kill her; therefore, the injuries were inflicted on the back. It is another matter that due to advanced age of the deceased and frailty of her constitution, injuries resulted in puncturing of lungs and rupture of liver causing the death of the deceased. Thus, though, the deceased had knowledge that the blows delivered by him might cause death of deceased, obviously there was no intention on his part to cause death; therefore, the act of the appellant would fall under the purview of Section 304 (Part-II) of the IPC and not under Section 302 thereof. As such, the trial Court fell into error in convicting the appellant under Section 302 of the IPC; therefore, the conviction is liable to be converted from one under Section 302 of the IPC to one under Section 304 (Part-II) thereof.

23. Consequently, the appeal is partly allowed. The conviction of the appellant under Section 302 of the IPC is converted into one under Section 304 (Part-II) of the IPC.

24. Keeping in view the facts and circumstances of the case in their entirety, particularly the age of the deceased of her physical condition and wide-spread prevalence of superstition in the contemporary rural society, it would be appropriate to reduce the sentence of the appellant from life imprisonment to rigorous imprisonment for a period of 8 years. The fine and the 14 Cr.A.No.2270/2008 sentence in default of payment of fine imposed upon the appellant by the trial Court, are affirmed.

                                 (C.V. Sirpurkar)        (V.K. Shukla)
                                    Judge                    Judge



sh   Digitally signed by S
     HUSHMAT HUSSAIN
     Date: 2018.06.26 11:44:54
     +05'30'
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                                               Cr.A.No.2270/2008


HIGH COURT OF MADHYA PRADESH : AT JABALPUR

           Criminal Appeal No.2270/2008

                   Shivprasad Panika
                          Vs.
               State of Madhya Pradesh



                      JUDGMENT


For consideration:-

                                            (C.V. Sirpurkar)
                                                 Judge



Hon'ble Shri Justice V.K. Shukla


                                            (V.K.Shukla)
                                                Judge



                      Post for : /06/2018




                                   (C.V. Sirpurkar)
                                         Judge

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