Madhya Pradesh High Court
Munna And Ors. vs State Of M.P. on 1 April, 2002
Equivalent citations: 2002(5)MPHT396
Author: Rajeev Gupta
Bench: Rajeev Gupta
JUDGMENT P.C. Agarwal, J.
1. Additional Sessions Judge, Chhatarpur, in his S.T. No. 137 of 1988 (State of M.P. v. Munna and 3 others) on 24-10-89 held these three appellants and co-accused Guruwa @ Gorelal (since deceased during pendency of appeal whose appeal has abated on 29-10-2001) guilty under Section 302/34 of the Indian Penal Code ('Code' for short) and sentenced them to undergo RI for life and to pay fine of Rs. -3,000/- each and in default, to further undergo RI for one year each. Aggrieved thereby appellants filed this appeal on 9-11-89.
2. As per prosecution, Girjabai (P.W. 5) on 28-8-88 had gone to see off her husband Late Nanhu who was going to Jarela, upto the village tank. She was resting near the tank when she heard the shouts for help of her husband. She rushed to the place of Bhairo Baba and saw that Munna (A-1), Babulal (A-2), Chhota @ Chhutua @ Chhotelal (A-3) and Guruwa @ Gorelal (since deceased) were belabouring her husband by lathis. She came to village crying and returned to the spot and saw that her husband was lying unconscious. She saw Chunnulal (P.W. 6), Bhura Kori and Rambhajan (P.W. 7) there. Certain other persons of the village had also assembled. She brought her husband to the village with the help of villagers and was taking him in a bullock cart to Police Station, Gourihar but he succumbed to his injuries in the way. However, before his death, Late Nanhu named all 4 accused as the assailants who were responsible for his death. A First Information Report (Ex. P-6) was lodged in Police Station, Gourihar at 22.15 on the same day. As per prosecution, H.P. Singhai, S.O., Gourihar had scribed the FIR (Ex. P-6). The dead-body of deceased Nanhu was taken to the police station in a bullock cart and inquest report (Ex. P-10) was prepared in police station after giving notice to the Panch witnesses. The dead-body was sent to the Primary Health Centre, Laundi. Dr. Devideen Chourasia (P.W.1), the Assistant Surgeon posted there noted following ante-mortem injuries on his person:--
"(1) A lacerated wound 3 cm x .5 cm x .5 cm on middle of scalp situated anterior posteriorly.
(2) A contusion 10 cm x 2 cm on back left scapula, oblique.
(3) A contusion 6 cm x 2 cm on back of left scapula lower part.
(4) A contusion 8 cm x 2 cm on back of right scapula.
(5) A contusion 4 cm x 2 cm on left gluteal region."
On internal examination, the brain matter was found semisolid due to decomposition. Fracture of left scapula and adjoining ribs were noted. Pleura and right lung were congested. Left lung was lacerated on upper and middle aspect. Blood was found in pleural cavity. Right side of heart was full while left was empty. Decomposition started in paracardiack, semisolid food material was found in stomach and intestines, liver, spleen and kidney were congested. All these injuries were caused within 24 to 48 hours of the examination. Cause of death was asphyxia due to rupture of lungs due to injuries.
3. H.P. Singhai (P.W.8) had seized blood-stained and simple earth from the spot vide Ex. P-18. Spot map (Ex. P-8) was also prepared. On information given by these appellants and Guruwa @ Gorelal (since deceased) lathis were seized from them. The Chemical Examiner found blood in earth seized from spot and on clothes of the deceased. After due investigation, a charge-sheet under Section 302/34 of the Code was filed.
4. All these three appellants pleaded not guilty. They claimed that they have been falsely implicated due to previous enmity as Atmaram father of Munna (A-1) and Babulal (A-2) had deposed against Smt. Girjabai (P.W. 5) and her family members who were convicted and sentenced. Bhau (D.W. 1), Pragi Lal (D.W. 2) and Nanhuram (D.W. 3) have been examined in defence to show that none of the witnesses Girjabai (P.W. 5), Chunnulal (P.W. 6) and Rambhajan (P.W. 7) was present at the time when deceased Nanhu was seen lying injured and unconscious near the temple of Bhairo Baba.
5. However, the learned Trial Judge found these appellants and Guruwa @ Gorelal (since deceased) guilty and sentenced them, as aforesaid.
6. Here, in this appeal, the advocate for the appellants has mainly emphasised on the following points :--
(1) The evidence of Smt. Girjabai (P.W. 5), Rambhajan (P.W. 7) and Chunnulal (P.W. 6) is unreliable. They were not present on spot. They had not seen the occurrence. No oral dying declaration was made to any of them by Late Nanhu. The learned Sessions Court has wrongly relied upon their statements. (2) Offence of murder is not made out against the appellants. At the most, it may be a case either under Section 304, Part I or Part II of the Code.
7. On the other hand, learned Panel Lawyer has supported the judgment of the Trial Court.
8. Finding of the learned Trial Court that Late Nanhu had died homicidal death is supported by statement of Smt. Girjabai (P.W. 5) the widow, Chunnulal (P.W. 6) and Rambhajan (P.W. 7) who reached the spot and saw Late Nanhu in injured condition and dying due to injuries on his person. The story is supported by FIR (Ex. P-6). H.P. Singhai (P.W. 8), the Investigating Officer prepared inquest report (Ex. P-7) after giving notice Ex. P-10 to panch witnesses of the dead-body and sent the same for post-mortem examination vide Ex. P-1. Dr. Devideen Chourasia conducted post-mortem examination on dead-body of Nanhu and noted ante-mortem injuries quoted in this judgment above. The doctor has opined that Late Nanhu had died due to rupture of the lung which was a consequence of fracture of the corresponding rib. As per doctor, death was homicidal. Even the defence witnesses Bhau (D.W. 1), Pragilal (D.W. 2) and Nanhuram (D.W. 3) had seen Late Nanhu lying injured though, of course, they claimed that he was unconscious and unable to speak. The appellants have shown ignorance on the point which is of no avail being evasive. Thus, the finding that the death of Late Nanhu was homicidal is affirmed.
9. Next question is whether the appellants had caused death of Late Nanhu. Girjabai (P.W. 5) the widow of Late Nanhu has claimed that she had followed her husband who was going to Village Jarela upto the other side of the tank out of village and had stayed there. She had heard the shouts of help of her husband and had rushed to the temple of Bhairo Baba where she saw Munna (A-1), Guruwa @ Gorelal (A-4), Chhota (A-3) and Babulal (A-2) belabouring her husband by lathi. She returned to the village crying to get help and went back with Bhura, Chhunua @ Chunnulal (P.W. 6), Rambhajan (P.W. 7) and Ramaiya and saw her husband badly injured. According to her, on enquiry by Chunnulal (P.W. 6), Rambhajan (P.W. 7), Ramaiya, Chunuwa, Bhura, her husband informed them that Munna (A-1), Guruwa @ Gorelal (since deceased), Chhota (A-3) and Babulal (A-2) had beaten him with lathis. She claimed that later on also Late Nanhu had taken the names of these appellants and Guruwa @ Gorelal (since deceased). Late Nanhu had stopped talking near Village Silap when he was being carried in a bullock cart to the police station and died thereafter. Her statement finds support from FIR (Ex.P-6) lodged by her on the same day at Police Station, Gourihar. Both Chunnulal (P.W. 6) and Rambhajan (P.W. 7) have supported her fully claiming that they had reached the spot where they had seen Girjabai (P.W. 5). Chunuwa and Bhura both have claimed that Late Nanhu was injured but was alive and in senses. They have claimed that Late Nanhu had told them that all these three appellants and Guruwa @ Gorelal (since deceased) had belaboured him by lathi. They have claimed that later on also Late Nanhu had taken names of all three appellants and Guruwa @ Gorelal (since deceased) in presence of other villagers.
10. It is noteworthy that factum of Late Nanhu disclosing the names of assailants to villagers has been referred to in promptly recorded FIR (Ex. P-6) also. Thus, clearly oral dying declaration is not a subsequent invention. As has already been seen that cause of death as rupture of lung due to fracture of rib resulting in asphyxia. Dr. Devideen Chourasiya (P.W. 1) in Para 11, has explained the process of anoxia due to injury of lung. According to him, one of the lung of Late Nanhu was not injured and was workable. According to him, a man can live with one lung only. In Para 12, he claimed that death of Late Nanhu was not instantaneous and clearly he had an opportunity to speak out the names of assailants to Chunnulal (P.W. 6) and Rambhajan (P.W. 7). The learned advocate for the appellants has emphasised that Late Nanhu could not be in a condition fit to give a dying declaration. He has drawn our attention to statement of Bhau (D.W. 1), Pragilal (D.W. 2) and Nanhuram (D.W. 3) who claimed to have seen Late Nanhu unconscious near temple of Bhairo Baba. It is true that Nanhuram (D.W. 3) was cited as a witness by the prosecution initially but was later given up by the prosecution as he had turned hostile and thus his presence on spot after the incident is not disputed. Even these three witnesses are not witnesses of truth when they claim to have seen Late Nanhu in unconscious state lying near the temple with no attendant or helper. Their conduct that they did not call the villagers to help him nor tried to provide any succour to him or arrange to bring him to the village or to the hospital and proceeded forward is highly unnatural and improbable. In our considered opinion, learned Trial Court has not been in error in discarding their statements.
11. Girjabai (P.W. 5) has been cross-examined at length. However, her statement in whole has been quite natural and probable and is trustworthy. Section 134 of the Evidence Act does not require any particular number of witnesses to prove any fact. In law quality and not the quantity matters. Conviction can be based on sole evidence of a witness if he is found trustworthy. Sheelam Ramesh v. State of A.P., (1999) 8 SCC 369. Here, in the present case, statements of Girjabai (P.W. 5) was corroborated by two witnesses Chunnulal (P.W. 6) and Rambhajan (P.W. 7) and prompt FIR (Ex. P-6) which go a long way to support the prosecution. Obviously, Smt. Girjabai has given a sufficient explanation of her presence on the spot. Of course, the spot is outside the village, yet a close study of spot map (Ex. P-8) drawn by H.P. Singhai (P.W. 8) the I.O. and Ex. P-5 drawn by Jagdev Prasad (P.W. 4) Patwari clearly show that there was no obstacle for either side for hearing from the spot to the place where Girjabai (P.W. 5) was there to deter her to reach the spot on hearing shouts of help of her late husband.
12. It is true that Girjabai (P.W. 5) in Para 9, had admitted that her husband Nanhu, her three sons Ramsharan, Chunua and Keta and she herself were convicted for murder of Bhura who was brother of Guruwa @ Gorelal (since deceased) and Chhotelal (A-3). She has further admitted that Atmaram father of Munna (A-1) and Babulal (A-2) were witnesses against them in such murder trial. Her three sons were in jail while she herself, her husband Late Nanhu and Chunuwa were on bail since Jeth month. Obviously, enmity was there but enmity is always double edged weapon. What may prompt a witness to speak against the accused can prompt the accused also to harm the victim. It is well settled that a near relative of the deceased and the inimical witness is not an incompetent witness. Only these factors put a Court on guard to be circumspect. Conviction can be based on their evidence. Sajjan Singh v. State of M.P. (AIR 1998 SC 2756), Anil Rai v. State of Bihar [(2001) 7 SCC 318], State of Rajasthan v. Hanuman [(2001) 1 SCC 337], Hukum Singh v. State of Rajasthan [(2000) 4 SCC 490]. In the present case, statement of Smt. Girjabai (P.W. 5) is fully supported by two witnesses Chunnulal (P.W. 6) and Rambhajan (P.W. 7) who cannot be dubbed as Hers.
13. It is noteworthy that the prosecution version is fully supported by medical evidence. Injuries on dead-body of Late Nanhu were caused by hard and blunt object like lathis. H.P. Singhai (P.W. 8) had seized lathis from the appellants and Guruwa @ Gorelal (since deceased). The appellants had merely denied the prosecution version. Obviously; their evasive denial is of no avail to them. The learned Trial Court has not erred in discarding such a defence. Thus, we hold that the appellants and Late Guruwa @ Gorelal (since deceased) had caused death of Late Nanhu.
14. Next question for decision is about the intention of the appellants. Obviously, they were armed only with lathis. Smt. Girjabai (P.W. 5) had reached the spot hearing the shouts of her husband for help. Thus, there has been no evidence as to how the actual assault had started. In all one lacerated wound and 4 contusions were there on the body of Late Nanhu. Left scapula and adjoining rib had been broken causing damage to the left pleaura and lung. Facts of case are not similar, to Karam Singh v. State of Punjab [1994 SCC (Cr.) 64] as is the claim of defence. In that case, 10 injuries were found on post-mortem. Some of them were abrasions. A lacerated wound was seen on head but there was no corresponding internal injury. The contusion and injury Nos. 5 to 7 had resulted in fracture of the rib which was responsible for death as liver and spleen had been ruptured. The Apex Court had held (in their own words):--
"Having regard to the nature of the weapon used and the parts of the body on which blows were dealt, it is difficult to hold that he intended to cause the death or intended to cause that particular injuries to the liver and the spleen. However, under the circumstances, he must be attributed to have the knowledge that by dealing such blows he was likely to cause the death of the deceased in which case the offence is one punishable under Section 304, Part II, IPC."
In Sarju Prasad v. State of Bihar (AIR 1965 SC 843), the Apex Court has held :--
"that the burden is still upon the prosecution to establish that the intention of the appellant in causing the particular injury to Shankar Prasad was of any of the three kinds referred to in Section 300 of Indian Penal Code."
Yet, intention of accused can be inferred from the act of the accused and the surrounding circumstances. Obviously Late Nanhu had been convicted for murder of Bhura and was on bail since Jeth month of 1988. Murderous assault on him was in the month of Shravan. Previous enmity clearly existed. Motive was also there. Clearly the accused have belaboured Late Nanhu with lathis out of sheer vengeance. In these facts the learned Trial Court has not erred in holding that the appellants are guilty of murder. Of course, burden to prove state of mind of the accused is on the prosecution as held in Sarju Prasad v. State of Bihar (supra). Here, in the present case, there has been a strong motive to do away with the enemy Late Nanhu who had been released on bail after conviction for murder of Bhura.
15. Obviously, the facts and circumstances of the case differ from that of Karam Singh v. State of Punjab (supra), which was not a case of vengeance or strong motive. In that case, a sudden attack by a single accused on victim had caused fracture of rib causing rupture of liver and spleen. Obviously, lungs of Late Nanhu were healthy. He had no disease. A common man can have knowledge that if four persons mercilessly belaboured a man with lathis causing injuries on his head and chest, then death is the result on ordinary course of nature. In the facts of the case, it cannot be held that the intention to cause death necessary to prove the offence of murder is not established. Thus, there has been no scope of interference in this appeal.
16. Thus, appeal fails. The judgment of the learned Trial Court is hereby upheld. The learned Trial Court has awarded the lesser sentence. Thus, no interference is possible.