Madhya Pradesh High Court
Bandu Dhobi vs The State Of Madhya Pradesh on 11 January, 2018
Bench: Hemant Gupta, Vijay Kumar Shukla
HIGH COURT OF MADHYA PRADESH :
JABALPUR
Criminal Appeal No.2093/2006
Khillan @ Khilanand
Vs.
The State of Madhya Pradesh
Criminal Appeal No.2311/2006
Bandu Dhobi
Vs.
The State of Madhya Pradesh
CORAM :
Hon'ble Shri Justice Hemant Gupta, Chief Justice.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
Shri Ramesh Kumar Tamrakar, Advocate for the
appellants.
Shri G.S.Thakur Government Advocate for the
respondent/State.
JUDGMENT
(Jabalpur dated: ___.01.2018) Per: Vijay Kumar Shukla, J.-
In both the appeals, a challenge has been made to the common order of conviction and sentence dated 18.10.2006 passed by Special Judge (SC.ST) (Prevention of Atrocities) Act, 1989 Chhatarpur in Special Case No.05/2003 whereby the appellants have been convicted and sentenced as under:
Appellants in Cr.A.No.2093/2006: Khillan @ Khilanand & Baijnath Conviction Sentence 302/34 IPC Imprisonment for life. Fine of Rs. 2000 each in default RI for 6 months each.
Appellants in Cr.A.No.2311/2006: Bandu Dhobi & Ramnath Baniya Conviction Sentence 302/34 IPC Imprisonment for life. Fine of Rs. 2000 each in default RI for 6 months each.
2. The prosecution case in short is that the deceased along with her husband deceased Darauwa had gone to the field to work as Labour on 21.11.2002. Wife Halki Bai and his son Gorelal had come back from the field but the deceased had stayed at the field. In the night at about 9 pm, Halki Bai heard the noise when she was cooking food and when she came out from the house, she found that her husband deceased was being beaten by appellant Khillan with the help of iron pipe and the other accused persons namely Baijnath, Bandu Dhobi and Ramnath Baniya were beating him with lathi. She also cried for help but the accused persons continued to beat her husband. She came back to house and informed his brother-in-law Damaruwa and son Gorelal. She again rushed to the spot along with his brother-in-law Damaruwa and found that her husband was laying in wounded condition. The blood was oozing from his head. With the help of Veeran and Damaruwa she had taken the deceased to the house and thereafter a jeep belonging to Suresh was brought and the deceased was taken to Police Station.
3. The criminal case was set in motion on the report lodged by Halki Bai P.W/8 which was registered at Crime No.295/202. Initially a marg intimation 37/01 was registered. The investigation was carried out by P.W/11 J.L.Ahirwar who has prepared dead body panchnama and sent the dead body for postmortem. During the investigation, Halki Bai also named Munnilal and Sukhlal to be involved in the commission of offence and therefore, they were also arrested. Weapons, iron rod and the lathi were seized on the disclosure statement of the accused persons. The same was sent for chemical report to FSL. In the said report, blood was found on iron pipe but on lathi the same was not found.
4. After investigation against six accused persons, the charge-sheet was filed and the charges under Sections 148 and 302/149 IPC were framed. The accused persons denied the charges and pleaded not guilty. It was contended that they have been falsely implicated in the present case.
5. Learned counsel for the appellant submitted that the prosecution could not establish its case beyond doubt. The evidence of P.W/8 who is the sole eye witness is not reliable as she herself has stated that the report was lodged in the morning. Once two accused persons have been acquitted, the remaining accused persons could not have been convicted under Section 302/34 IPC as there was no intention to cause murder of Darauwa. It is also submitted that all the witnesses are relatives and their testimony could not have been believed as the incident had been taken place in the village and therefore, the other witnesses ought to have been examined by the prosecution.
6. Per contra, learned counsel for the State submitted that there is no error in the order of conviction and sentence. The prosecution has successfully proved its case beyond any doubt on the basis of the testimony of about six witnesses which is further corroborated with medical evidence and other evidence.
7. After having heard learned counsel for the parties, we proceed to examine the testimony of eye witnesses P.W/8 Halki Bai, P.W/10 Prema Bai and P.W/11 Damaruwa.
P.W/8 Halki Bai who is wife of the deceased has deposed that she heard the shouting of her husband then she rushed at the spot and saw that the accused Khillan was beating her husband with the help of iron pipe and other accused persons namely Baijnath, Ramnath, Bandu Dhobi, Munnilal and Sukhlal were having lathi in hands. She immediately raised alarm and called her brother-in-law (Devar) Damaruwa who also rushed at the spot along with one Gorelal. When they all reached at the spot, they saw the accused persons were still beating her husband and were shouting that they will kill the deceased Kumbhar, addressing him by his caste and uttered since he had not given the evidence in favour of Bandu Dhobi, therefore, they will have to kill him. He received multiple injuries on head, face, shoulders etc. The blood was oozing from the wounds. She has further stated that thereafter all three had taken the victim to her house and thereafter a jeep belonging to Gorelal was brought and the deceased was taken to the Police Station and the report was lodged. Her testimony is further supported by witnesses P.W/10 Premabai and P.W/11 Damarua. P.W/10 Premabai stated that after hearing the shouting of her daughter-in-law she had rushed at the spot and had seen that all the accused persons were beating him. She has also stated that Damaruwa was also with her. She has also stated that her son was being beaten by the accused persons because he refused to give evidence in favour of Bandu Dhobi, one of the accused persons in other case.
8. Another eye witness P.W/11 Damaruwa who is brother of the deceased has also supported the entire prosecution case and the testimony of P.W/8. He also deposed that his daughter-in-law P.W/8 Halki Bai came to him and informed that his brother was being beaten by the accused persons. He immediately rushed at the spot and had seen that accused Khillan was having iron rod and the other accused persons were armed with lathi. They were beating the deceased and thereafter the deceased was brought at home and thereafter was taken to the Police Station.
9. The postmortem was carried out by Dr. M.L.Khandelwal who found 19 injuries on the person of the deceased. His postmortem report is Exhibit-P/3. The cause of death was Coma due to head injuries. The investigation was carried out by Shri J.L.Ahirwar P.W/12. He stated that he was posted as City Superintendent of Police, Chhatarpur and about the registration of the present case, he was informed by the incharge of the Police Station Civil Line. He had prepared the panchnama of the dead body and had sent it for postmortem. The said memo is Exhibit-P/29 which bears his signatures. He had also seized the blood stained soil etc. from the spot and on the disclosure statement of the accused persons he had affected the seizure of the weapons. In para 3 of his deposition he had stated that on the disclosure statement iron rod was recovered which was concealed in his house.
10. The seizure memo is Exhibit-P/20 which bears his signatures. He has also seized lathi on the disclosure statement of the other accused Baijnath Patel which is Exhibit-P/17. From accused Bandu Dhobi, he recovered lathi vide Exhibit-/18. From accused Ramnath also lathi was recovered vide Exhibit-P/19 of his disclosure statement. He stated that the iron pipe was having blood spots and the same was hidden in the concealed place of the house. The exhibit seizure memo was signed by witnesses Damaruwa P.W/11 and Karonji Kumhar. The seized articles were sent for chemical examination. The FSL report is Exhibit-P/32. In the seized weapon iron rod article D the blood was found but on the lathi blood was not found. However, the human blood could not be confirmed in the said report. That out of seven eye witnesses, three were declared hostile. They did not support the prosecution case. All the accused persons were acquitted for the charges under the SCST ( Prevention of Atrocities) Act. The trial Court after assimilation of entire facts acquitted the accused persons of the charges under Section 148 and also accused persons Munnilal and Sukhlal under Section 302/149 IPC.
11. The appellants Khillan and Baijnath (Cr.A.No.2093/2006) and the appellants Bandu Dhobi and Ramnath Baniya (Cr.A.No.2311/2006) have been convicted under Section 302/34 IPC and have been sentenced as mentioned in the earlier paragraph. On the evaluation of the testimony of eye witnesses Halki Bai P.W/8, Smt. Premabai P.W/10 and Dhamaruwa P.W/11, it is clear that the deceased was caused injury with the help of iron rod by appellant Khillan and was also beaten by the other appellants. The testimony of these three eye witnesses is coherent and consistent. Their cross- examination does not indicate any material contradiction or suggestion to discard their testimony.
12. The testimony of these witnesses is further corroborated by three witnesses P.W/1 Biran, P.W/7 Tijva and P.W/9 Kalyan. P.W/1 Biran in para 2 of his statement has stated that two persons were beating Darauwa but he could not identify them. P.W/7 Tijva though declared hostile but in para 2 of his deposition he has stated that he had seen two persons running from the spot.
13. In the case of Nethala Pothuraju & Ors. (1992) 1 SCC 49, Hamlet alias Sasi & Ors. Vs. State of Kerala (2003) 10 SCC 108 and in the case of Dahari & Ors. Vs. State of U. P. (2012) 10 SCC 256, the Court held that in the case where the accused persons have been acquitted under Section 149 of IPC, but they can be convicted under Section 302/34 IPC. In the facts of the present case, it has been established that the appellant Khillan had caused injury with the help of iron rod and the other appellants cause injury to the deceased with the help of lathi. The deceased had received as many as 19 injuries. P.W/3 Dr. Khandelwal in his testimony has clarified that the injury no.16 was grievous in nature. The other injuries were caused with the help of hard and blunt object. Thus, there was common intention of the appellants to murder Darauwa.
14. The Doctor's evidence is an opinion. The testimony of eye witness P.W/8 Halkibai supported by the other witnesses P.W/10 Premabai and P.W/11 Damaruwa cannot be discarded merely because they belong to the family of deceased. In their cross-examination, there is nothing to establish that there was any reason to implicate the accused persons. In the case of Brathi alias Sukhdev Singh, Vs. State of Punjab AIR 1991 SC 318, State of Andhra Pradesh Vs. Punati Ramulu & Ors. 1994 Sppl. (1) SCC 590, the Apex Court has held that the testimony of relative witnesses cannot be rejected merely on the ground that they are relative of the deceased. In the case of Bhimabhai and others v. State of Gujarat AIR 1993 SC 1193 the Apex Court has further held that even the conviction on the basis of testimony of one eye witness is good as it is not the number of witnesses but the quality of witness is relevant for the purpose of conviction.
15. The evidence of these three witnesses gets corroborated with the testimony of Dr. M.L.Khandelwal P.W/3 and his medical report. The seizure have been proved by the investigating officer and the witnesses as they have admitted their signatures on the seizure memo and further in FSL report, the blood has been found to be present on the iron rod. Thus, the ocular evidence is well supported by medical evidence and the other evidence.
16. In view of aforesaid assimilation of facts and evidence, we do not find any error in the order of conviction and sentence. Hence, the appeals do not warrant any intereference. Both the appeals are dismissed.
(Hemant Gupta) (Vijay Kumar Shukla)
Chief Justice Judge
anu
Digitally signed by ANUPRIYA SHARMA
Date: 2018.01.30 15:12:12 +05'30'
HIGH COURT OF MADHYA PRADESH AT JABALPUR Criminal Appeal No.2093/2006 Khillan @ Khilanand Vs. The State of Madhya Pradesh Criminal Appeal No.2311/2006 Bandu Dhobi Vs. The State of Madhya Pradesh JUDGMENT FOR CONSIDERATION ( Vijay Kumar Shukla ) Judge /01/2018 HON'BLE THE CHIEF JUSTICE ( Hemant Gupta ) Chief Justice JUDGMENT DELIVERED FOR : -01-2018 ( Hemant Gupta ) Chief Justice /01/2018 Cr.A.No.2093/2006 & Cr.A.No.2311/2006 .01.2018 Judgement passed separately, signed and dated.
(Hemant Gupta) (V.K.Shukla)
CHIEF JUSTICE JUDGE
anu