Madhya Pradesh High Court
Nandu vs The State Of Madhya Pradesh on 26 October, 2017
Bench: S.K. Seth, Rajeev Kumar Dubey
1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No.218/2009
Nandu S/o Makhan
Vs.
The State of M.P.
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For the Appellant: Smt. Chanchal Sharma Advocate.
For the respondent: Shri A.N.Gupta,Govt. Advocate.
PRESENT:
HON'BLE SHRI JUSTICE S.K. SETH
HON'BLE SHRI JUSTICE RAJEEV KUMAR DUBEY
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JUDGMENT
(26/10/2017) As per :- Rajeev Kumar Dubey, J This criminal appeal has been filed under Section 374 (2) of the Code of Criminal Procedure, against the judgment dated 19/05/2008 passed by Second Additional Session Judge, District Betul in Sessions Trial No.86/2007, whereby learned A.S.J. found the appellant guilty of the offences punishable under Section 302 and 325 of the IPC and sentenced him to undergo RI for life imprisonment with fine of Rs.500/- and RI for two years with fine of Rs.300/-, with default stipulations.
2. Brief facts of the case are that on 04/03/07 at around 2:00 PM when Sakunbai was grazing the goats near the Bank of a river, at village Singanbadi, Betul Bazar and her son Ganesh (PW/6) was also there appellant, the husband of Shakunbai came and demanded money to drink alcohol and when she denied appellant assaulted her by stick. When she shouted Channulal (PW/3) came there and rescued 2 Shakunbai and took her to her house. At that time Shakunbai's parents (mother-Kamaraja and father-Natthu) were also present and her son Ganesh (PW/6) also came with Shakunbai to the house. Some time later appellant came to the house and again assaulted Shakunbai with stick. When Kamaraja and Natthu came to rescue her, appellant also assaulted them by stick. In the incident Shakunbai sustained injuries on her face and head. Nathu sustained injuries on his head and left leg and Kamaraja on his head. Ganesh (PW/6) took Shakunbai, Kamarja and Natthu to Civil hospital Betul with the help of Channulal (PW/3) and Mishrilal(PW/4) where Dr.A.K. Pande (PW/15) examined them and gave injury report (ExP/20) of Shakunbai and declared Kamarja and Nathu dead and sent the report to this effect to Police Choki situated in the hospital. On receiving that information Head Constable S.K.Verma (PW/8) entered it in the daily dairy. Pooja (PW/7) daughter of appellant informed about the incident to her maternal uncle Lakshman(PW/1) who came to hospital and lodged the enquest report (Ex.P/1) and FIR (Ex.P/2) at Police Chouki situated in the hospital. S.K. Verma (PW/8), wrote these reports and sent them for original registration to Police Station Betul Bazar through Constable Girdharilal (PW/13). On that report, Inspector Arun Yogi (PW/14) registered Crime No.34/07 (Ex.P/16) for the offences punishable under Section 307, 302 of the IPC and also registered inquest case no. 4/07 and 5/07 (Ex.P/17) and investigated the matter. During investigation Arun Yogi (PW/14) reached the Hospital and prepared inquest memo of the dead body of Kamarja and Natthu (Ex.P/5 & Ex.P/6) and sent the dead bodies for postmortem along with request letter (Ex.P/18 & Ex.P/19). On 05/03/07 Dr. Dinesh Dahelwar (PW/18) conducted autopsy of dead body of Natthu and Kamarja and gave autopsy report (Ex.P/18 and Ex.P/19). He also seized the clothes of the deceased from their body and sealed it in two packets and handed them over to constable Girdharilal (PW/13) for producing the same to P.S. Betul 3 Bazar. He produced those sealed packets at P.S. Betul Bazar which were seized by Shrikant Shukla from his possession who prepared seizure memo (Ex.P/16).
3. During investigation, on 05/03/07 Arun Yogi (PW/14) went to spot and prepared spot map (Ex.P/22) and seized blood stained and simple soil from the spot and prepared seizure memo (Ex.P/13) and arrested the appellant and prepared arrest memo (Ex.P/25) and on the information of the appellant he seized one stick from the house of the appellant and prepared information memo (Ex.P/10), seizure memo (Ex.P/11) and also seized one blood stained shirt of the appellant and prepared seizure memo (Ex.P/12). He also seized one saree of Shakunbai from his possession and prepared seizure memo (Ex.P/20). He also called the query report from Dr. A.K. Pandey (PW/16) and Dr. Dinesh Dahelwar (PW/18) enquiring whether injuries sustained by Shakunbai and deceased Kamarja and Natthu were caused by the stick seized from possession of the appellant. On that Dr. A.K. Pandey (PW/15) and Dr. Dinesh Dahelwar (PW/18) gave the query reports (Ex.P/21) and (Ex.P/23) respectively to the effect that injuries sustained by injured Shakunbai and deceased Kamarja and Natthu could be caused by the seized stick. He also called the report (Ex.P/21) from Dr. ML. Rathore (PW/17) regarding nature of injuries sustained by Shakunbai in the incident. On that Dr. ML. Rathore (PW/17) gave the report (Ex.P/21) that the injuries sustained by Shakunbai were grievous in nature. He also recorded case diary statements of Lakshman (PW/1), Urmila (PW/2), Channulal (PW3), Mishrilal (PW/4), Shakun Bai (PW/5), Ganesh (PW/6), Pooja (PW/7), Kamal Kishore (PW/11) and Ramesh Kumar Verma (PW/12) and sent seized articles for chemical examination along with draft (Ex.P/26) through S.P. Betul for FSL, Sagar. From where FSL report (Ex.P/27) was received. After completion of investigation Police filed charge-sheet before Judicial Magistrate, First Class, Betul, who committed the case 4 to the Court of sessions, where from that charge-sheet ST. No.86/07 was registered.
4. Learned II Additional Sessions Judge, Betul framed charge against the appellant for the offence punishable under Section 307 & 302 of the IPC. The appellant abjured his guilt and took defence that he is innocent and has falsely been implicated in the offence. However, after trial Learned II Additional Sessions Judge found the appellant guilty of the offences punishable under Section 302, 325 of the IPC and sentenced him as aforesaid.
5. Prosecution has produced as many as 18 witnesses for proving its case.
(i) Lakshman (PW/1) for proving the fact that Pooja (PW/7) narrated the incident to him on that he lodged the FIR (ExP/2) at police chowky.
(ii) Shakunbai (PW/5), Ganesh (PW/6), Pooja (PW/7) and Urmila (PW/2) eyewitness of the incident for proving the incident.
(iii) Channulal (PW3), on the point that he rescued Shakunbai (PW/5) when appellant assaulted her at the bank of river and took her to her house and soon after the incident Ganesh (PW/6) and Pinky informed him regarding the incident and he went to spot (appellant's house) and sent Shakunbai and deceased Kamarja and Natthu to hospital.
(vi) Mishrilal (PW/4), on the point that soon after the incident Ganesh (PW6) informed him regarding the incident. Then he took the bullock cart to appellant's house and Ganesh brought Shakunbai and deceased Kamarja and Natthu to hospital on it.
(v) S.K. Varma (PW/8) for proving the fact that Laxman (PW/1) lodged the report (Ex.P/2) of incident. He wrote 5 that report and sent it for original registration to P.S.Betul Bazar.
(vi) Bajirao (PW/9) for proving the spot map (Ex.P/9)
(vii) Guddu Rane (PW/10) and Kamal Kishor (PW/11) panch witnesses for proving the fact that Aruan yogi (PW/14) arrested the appellant and prepared arrest memo (Ex.P/25) and on the information of the appellant seized one stick from the house of the appellant and prepared information memo (Ex.P/10), seizure memo (Ex.P/11) and also seized one blood stained shirt of the appellant and prepared seizure memo (Ex.P/12).
(viii) Girdharilal (PW/13) who brought FIR(Ex.P/2) and Enquest report (Ex.P/1) from Police Chocki civil hospital to P.S. Betul Bazar for original registration and took sealed packet containing blood stained clothes of deceased Kamarja and Natthu from civil Hospital to P.S. Betul Bazar. Where Shrikant Shukla seized those packets from his possession and prepared seizure memo (Ex.P/16).
(ix) Arun Yogi (PW/14) who investigated the crime.
(x) Dr.A.K. Pande (PW/15) who examined the injured Shakunbai (PW/4) and gave M.L.C. report (Ex.P/20) and query report (Ex.P/21).
(xi) Dharmendra (PW/16) for proving the seizure memo (Ex.P/20) seizure of sari from Shakunbai.
(xii) Dr. M.L. Rathor (PW/17) who gave the report (Ex.P/21) regarding nature of injuries sustained by Shakunbai in the incident.
(xiii) Dr. Dinesh Dahelwar (PW/18) who conducted the autopsy of dead body of deceased Kamarja and Natthu and gave P.M. report (Ex.P/18 and Ex.P/19).6
6. Learned counsel for the appellant submitted that so called eye witnesses of the incident Shakun Bai (PW/5), Ganesh (PW/6), Pooja (PW/7) and Urmila (PW/2) are relative of the deceased. There are many contradictions and omissions in their statements regarding incident. Prosecution did not produce any independent witnesses for proving the incident. Urmila (PW/2) did not state in her statement that she saw the appellant assaulting deceased Kamaraja and Nathu. In the statement (Ex.P/7) of Shakunbai (PW/5) recorded by the Executive Magistrate on the date of incident it is not mentioned that she had seen appellant assaulting her parents. So in this regard her Court statement becomes afterthought. Likewise in the case diary statement of Ganesh (PW/6) it is mentioned that when appellant assaulted Natthu and Kamarja, he was not present in the house. Pooja (PW/7) also admitted in her cross-examination that at the time of incident she was not present at home and was playing in Kiran's house and when she came to her house, Ganesh was standing outside the house, which shows that Ganesh (PW/6) and Pooja (PW/7) also did not see the appellant assaulting Natthu and Kamarja. From the statement of Laxman (PW/1), Channulal (PW/3) and Ramesh (PW/12) it is clear that they did not see the incident. They deposed regarding incident on the basis of information given by the Ganesh (PW/6) and Pooja (PW/7) to him. While Ganesh (PW/6) and Pooja (PW/7) had not seen the incident. So the statements of Laxman (PW/1), Channulal (PW/3) and Ramesh (PW/12) who are the hearsay witnesses regarding incident are also not admissible in evidence. Even Dr.Dinesh Dahelwar (PW/18) who conducted the autopsy of dead body of deceased Natthu and Kamarja did not state that the injuries sustained by them are sufficient to cause death in ordinary course of nature. In the absence of opinion of doctor in this regard, it cannot be said that appellant murdered Natthu and Kamarja and appellant's act at the most comes under the purview of section 304 part II of IPC. Learned trial court without appreciating 7 these facts wrongly found appellant guilty for the offence punishable under section 302 of IPC.
7. On the other hand, learned counsel for the respondent/State has vehemently opposed the submissions of the counsel for the appellant and fully supported the judgment of the Trial Court and submitted that from the prosecution evidence the guilt of the appellant is clearly proved. Learned trial Court did not commit any mistake in holding the appellant guilty for the offences punishable under Sections 302 & 325 of IPC and prayed for rejection of appeal.
8. Point of determination in this appeal is whether the conviction and sentence awarded by the trial court to the appellant under Sections 302 & 325 of IPC are liable to be set aside for the reasons stated in the memo of appeal and raised during arguments.
9. On the point that Natthu and Kamarja died on 04.02.2006 due to injuries sustained by them and Shakunbai also sustained grievous injury, Dr. AK. Pandey (PW/15) deposed that on 04/03/07 he was posted at District Hospital Betul, on the Emergency Duty when at about 7:30 PM Constable No.307, Vishwanath, P.S. Betul Bazar brought Shakunbai to the hospital and he examined her and found the following external injuries on her body:-
(i) Lacerated wound right side of jaw size 3'' x ½ x bone deep, clotted blood also present in the injury.
(ii) Lacerated wound size 4'' x ¾ '' x bone deep over left frontal region. clotted blood also present.
(iii) Lacerated wound size 4''x ½ over left frontal region, clotted blood also present in the injuri.
(iv) Lacerated wound size 2'' x ½ x bond deep right side of head.
(v) diffused Swelling was present between right cheek and eye.8
10. He further deposed that in his opinion all the injuries were caused by heard and blunt object and duration of these injury within 12 hour from medical examination. In this regard his statement also corroborated from MLC report (Ex.P/20).
11. Dr. AK. Pandey (PW/15) also deposed that he had advised for surgical checkup of the injuries sustained by Shakunbai and Dr M.L. Rathore (PW/17) deposed that on 07/04/06 he examined Shakunbai and found that the injuries sustained by Shakunbai were grievous in nature. His statement is also corroborated from the report (Ex.P/21) given by him. Dr. AK. Pandey (PW/15) examined Shakunbai on 04/03/07 at around 7:30 pm. and opined that injuries sustained by her were caused by hard and blunt object and the duration of the injuries was within 12 hours from the examination. Incident also allegedly occurred on 04/03/07 at 3 pm so from the statement of Dr. AK. Pandey (PW/15) it appears that Shakunbai sustained injuries by hard and blunt object like stick at the time of the incident and from the report (Ex.P/21) given by Dr M.L. Rathore (PW/17) it also proved that injuries were grievous in nature.
12. Dr.Dinesh Dahelwar (PW/18) deposed that on 05/03/07 he was posted as Medical Officer at District Hospital Betul, on that day at about 11:15 A.M. he conducted the autopsy of dead body of deceased Natthu which was brought by constable Girdhari and found following external injuries on the dead body :-
(i) Incised wound over mandible size 6 x 2 cm x bone deep, mandible was also fractured.
(ii) Eye was ecchymosed, blood was ooze out from nostrils and right ear.
(iii) Right parietal bone was fractured. Below right parietal bone. In brain, hemorrhage was present.
(iv) Lacerated wound over right chin size 4 x 1 cm.9
13. He further deposed that Rigor Mortis was present over both upper and lower limbs. In his opinion Natthu died due to brain haemorrhage which was caused due to head injury and duration of death was within 24 hours from the postmortem. In this regard his statement is also corroborated from the P.M. report (Ex.P/18)
14. Dr. Dinesh Dahelwar (PW/18) further deposed that on 05/03/06 he also conducted the autopsy of dead body of deceased Kamarjabai and found following external injuries on the dead body :-
(i) Rigor mortis present over both lower and upper limbs.
(ii) Lacerated wound size 3 x 1 cm. x bone deep over left parietal area, below the wound parietal bone was also fractured, clotted blood was present in the wound below skin, brain cavity was also full from blood.
15. He further deposed that Kamarjabai died due to brain haemorrhage which was caused due to head injury and duration of death within 24 hours from the postmortem.This statement is also corroborated from postmortem report (Ex.P/19).
16. Dr. AK. Pandey (PW/15), Dr M.L. Rathore (PW/17) and Dr.Dinesh Dahelwar (PW/18) are independent witness. There is no significant contradiction in their statements on that point. So there is no reason to disbelieve their statement on that point. From their statements, it is clearly proved that Natthu and Kamarja died on 04.02.2006 due to injuries sustained by them in their head and Shakunbai sustained grievous injury caused by hard and blunt object like stick.
17. As regards to the point whether the appellant caused injuries to deceased Natthu and Kamarja by stick with intent to kill them and thereby committed their murder and also voluntarily inflicted grievous injuries to Shakunbai, injured Shakunbai (PW/5) deposed that 10 on the date of incident at 2:00 PM when she was grazing the goats near the bank of river and her son Ganesh (PW/6) was also there her husband (appellant) came there and demanded money to drink alcohol and when she denied appellant assaulted her by stick. When she shouted, Channulal (PW/3) came there and rescued her and took her to her house. Ganesh (PW/6) also, came with her to the house. At that time her parents (mother-Kamaraja and father-Natthu) were present there. She further deposed that after some time appellant came to the house and again assaulted her by stick. When her parents (Kamaraja and Natthu) came to rescue her, the appellant assaulted them also by stick. Appellant assaulted Natthu on his neck and leg and Kamaraja on back side of her head. In the incident she sustained injuries in her jaw, head and left temple.
18. On the point that the appellant assaulted Shakunbai at the bank of river, the statement of Shakunbai (PW/5) is corroborated from the Statement of Channulal (PW/3), who also deposed that at the time of incident he had taken his oxen to river to get them drink water where he saw the appellant with stick and was beating Shakunbai by punch. He rescued her and took her to her house. Sometime later Ganesh and Pinki informed him that the appellant murdered Kamarjabai and Natthu and also assaulted Shakunbai as corroborated from the statement of Ganesh (PW/6).
19. And on the point that after the aforesaid incident appellant again assaulted Shakunbai at home and also assaulted Kamarjabai and Natthu when they tried to rescue her Shakunbai's statement is also corroborated from the statement of Ganesh (PW/6) and Pooja (PW/7) and on the point that appellant assaulted her at home , her statement is also corroborated from the statement of Urmila (PW/2).
20. Prosecution story is also supported from the circumstantial evidence collected by Arun Yogi (PW/14) during investigation who deposed that on 05/03/2007 he arrested the appellant and on his 11 information seized one stick and also seized one blood stained shirt from his possession. On that point his statement also corroborated from information memo (Ex.P/10) and seizure memo (Ex.P/11 and Ex.P/12) which were also proved by Kamal Kishore (PW/11) independent witness of these documents. Arun Yogi (PW/14) also deposed that he sent all seized articles for chemical examination through S.P. Betul alongwith draft Ex.P/26. Report Ex.P/27 was received from FSL, Sagar. In the report it is mentioned that human blood was found on the stick (Article-C) and shirt (Article-D), which were seized from the possession of the appellant by Arun Yogi. Dr. A.K. Pandey (PW/15) and Dr. Dinesh Dahelwar (PW/18) also gave the query reports (Ex.P/21) and (Ex.P/23) respectively to the effect that the injuries sustained by injured Shakunbai and deceased Kamarja and Natthu can be caused by the sized stick. Appellant did not give any explanation in this regard, which also strengthens the prosecution case that the appellant had inflicted injuries on deceased Kamarjabai , Natthu and injured Shakunbai.
21. Although Shakunbai (PW/5), Ganesh (PW/6), Pooja (PW/7), Urmila (PW/2) are relatives of the deceased, but they are relatives of the accused also, so why they would falsely implicate the accused . Likewise, although in the statement (Ex.P/7) of Shakunabai recorded by the executive magistrate soon after the incident it is not mentioned that Shakunabai saw appellant assaulting her parents. But it appears therefrom that the executive magistrate who recorded that dying declaration did not ask any question from Shakunbai (PW/5) regarding how Kamarja and Natthu sustained injuries. He only asked questions from her that how she got injured in the incident. That fact is mentioned in her case diary statement. So the court statement of Shakunbai that she saw appellant assaulting her parents cannot be considered afterthought. Shakunbai (PW/5) , injured witness in her cross-examination also clearly deposed that she saw the appellant 12 assaulting her mother Kamarjabai and father Natthu. There is no contradiction in her statement in this regard. Shakunbai (PW/5) is appellant's wife and so why she would give false statement against the appellant.
22. Her statement is fully corroborated form the statement of another eyewitness of the whole incident, her son Ganesh (PW/6) who clearly deposed in his examination-in-chief that at the time of incident he was at the house, where appellant came and beat her mother Shakunbai. When his Grand-Mother Kamarjabai and Grand-Father Natthu came to rescue her, appellant assaulted them too by bamboo stick. Natthu sustained injuries on his neck and leg and Kamarjabai sustained injuries on her head and his mother also sustained injuries on her head, temple region and jaw. In this regard there are no important contradictions in his cross-examination. Although there is some improvement in his statement, but only on that basis his entire statement cannot be discarded.
23. Although Pooja (PW/7) stated in her cross-examination that when she came to her house, at that time she saw that Ganesh was standing outside the house, but Ganesh clearly denied from that fact and stated that he was at home at the time of incident, so only on the basis of statement of Pooja (PW/7) it cannot be assumed that Ganesh did not see the incident. Although from the cross-examination of Pooja (PW/7) and Urmila (PW/2) it appears that they did not see the incident and they reached on the spot after the incident but from their statements it appears that they reached on spot soon after the incident and saw Shakunbai, Kamarja and Nathu lying in injured state and also saw appeallant on the spot. So their statements also strengthen the statement of Shakunbai (PW/5) and Ganesh (PW/6).
24. From the statements of Shakunbai (PW/5) and Ganesh (PW/6) which were corroborated from other prosecution evidence as discussed above it is clearly proved against appellant that on the date 13 of incident, i.e. 04/03/06 firstly the appellant assaulted Shakunbai on the bank of river when she was grazing the goat and after sometime he again assaulted her at her house by stick and voluntarily caused grievous injuries to her. When her mother Kamarjabai and father Natthu came to rescue her, appellant assaulted them too by stick and inflicted injuries on their head, due to which they died.
25. Learned counsel for the appellant also submitted that from the prosecution evidence what only appears is that the appellant assaulted only one blow of stick on Kamarjabai and Natthu's head and from the statements of prosecution witnesses also it does not appear that the appellant inflicted injuries on Kamarjabai and Natthu's with an intention to kill them. Even the doctor who conducted the postmortem of dead bodies of Kamarjabai and Natthu have not specifically mentioned in the P.M. reports that the injuries sustained by the deceased Kamarjabai and Natthu were sufficient to cause death in the ordinary course of nature.So appellant's act at the most comes only under the preview of Section 304 of IPC. But this argument also has no force.
26. However, the doctor who conducted the postmortem of dead bodies of Kamarjabai and Natthu have not specifically mentioned in the P.M. report that the injuries sustained by the deceased Kamarjabai and Natthu were sufficient to cause death in the ordinary course of nature, but the question whether particular injury was sufficient in the ordinary course of nature to cause death or not is a question of fact which will have to be determined in the light of the facts, circumstances and evidence produced in a given case, as held by Hon'ble Apex Court in the case of State Of Rajasthan vs Shera Ram @ Vishnu Dutta, reported in (2012) 1 SCC 602. Here in the case, the nature of injuries, the body part on which they were inflicted and the weapon used, is more than enough to infer that the injuries sustained 14 by deceased Kamarjabai and Natthu on their head was sufficient in the ordinary course of nature to cause death.
27. There is no fixed rule that Section 302 IPC would not be attracted whenever a single blow is inflicted, under Clause "third" of Section 300 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 Apex court in Arun Raj V/s. Union of India and others reported in (2010) 6 SCC 457.
28. Form the prosecution evidence as discussed above it is proved that appellant deliberately struck Kamarjabai and Natthu on the head with a stick so as to cause a fracture of the parietal bone. No evidence or explanation is given about why the appellant struck stick on the head of the deceased Kamarjabai and Natthu with such a force that their parietal bone got fractured. In the absence of evidence, or reasonable explanation by the appellant that he did not intend to strike in the head of Kamarjabai and Natthu with a degree of force sufficient to break the skull, shows that he assaulted them with an intention to kill them
29. So in the considered opinion of this Court, learned trial Court did not commit any mistake in finding the appellant guilty for murdering Kamarjabai and Natthu and in causing injuries to Shakunbai and convicted him for the offence punishable under Section 302 & 325 of the IPC.
1530. Although, it appears from the judgment that learned trial Court convicted the appellant for the offence under Section 302 of the IPC only one count, while in the incident appellant murdered two persons namely Kamarjabai and Natthu, so it was imperative on the trial court to pass sentence on two counts, for the offence punishable under Section 302. But the prosecution did not file any appeal on the point.
31. Hence, the impugned conviction and sentence of the appellant under Sections 302 and 325 of IPC is upheld. Both jail sentences shall run concurrently. The period already undergone shall be set off from the period of substantive jail sentence.
32. The appeal is dismissed accordingly.
(S.K. Seth) (Rajeev Kumar Dubey) JUDGE JUDGE as/