Madhya Pradesh High Court
Babu Lal Singh vs The State Of M.P. on 6 August, 2014
Author: N.K.Gupta
Bench: N.K.Gupta
HIGH COURT OF MADHYA PRADESH, JABALPUR
Criminal Appeal No.1220/2005
Babu Lal Singh & another
Vs.
State of Madhya Pradesh
Criminal Appeal No.1227/2005
Laxan Dhari Singh & another
Vs.
State of Madhya Pradesh
For the appellants : Shri S.P.Mishra, Advocate.
For the State : Shri S.K.Kashyap, Govt. Advocate.
Present : HON'BLE MR. JUSTICE AJIT SINGH
HON'BLE MR.JUSTICE N.K.GUPTA, JJ.
J U D G M E N T
( .8.2014) The following judgment of the Court was delivered by:
N.K.Gupta, J. The appellants of both the appeals have challenged the common judgment dated 1.4.2005 passed by the learned Second Additional Judge to First Additional Sessions Judge, Sidhi in S.T.No.165/2004, therefore, both the appeals are decided by this common judgment.
2. The appellants have preferred the present appeals against the aforesaid judgment, whereby each of them was
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 convicted for offence under Sections 302/34 and 323/34 of IPC and sentenced to life imprisonment with fine of Rs.200/- and one year's rigorous imprisonment respectively. In default of payment of fine, one month's additional imprisonment was also imposed.
3. The prosecution's case, in short, is that, on 13.9.2004, the complainant Hiraman (P.W.1) had lodged an FIR, Ex.P/1 at Police Station Gadhwa (District-Sidhi) that in the evening of previous day, Ramkali (P.W.3), daughter of the deceased Harihar Singh came to his house at village Gerui (Police Station Gadhwa) and intimated him that the appellants Laxan Dhari, Babloo Singh, Babulal Singh and Rajkumar Singh had assaulted her father Harihar Singh with sticks and he was lying in the house. Thereafter, the complainant Hiraman went to the house of the deceased Harihar Singh and met the deceased. He found that the deceased had sustained several injuries, whereas Sonwati (P.W.2), wife of the deceased Harihar Singh had informed him that on 12.9.2004, in the noon, Chhote Baiga (P.W.6), lessee of the deceased Harihar Singh was ploughing the field at village Gerui. The appellants prohibited him to plough the field and they had abused him then, the deceased Harihar Singh came out of his house and told the appellants not to stop his lessee Chhote Baiga. Thereafter, the appellants
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 started abusing the deceased Harihar Singh then, they started assaulting him by sticks. On shouting, all the witnesses Sonwati (P.W.2), Sobhnath Singh (P.W.8) and Shiv Kumar (P.W.7) who were grazing their cattle nearby, rushed to the spot. Sonwati to save her husband, covered him by herself then, the appellants assaulted her also with sticks and as a result of which, she sustained six injuries on various parts of her body. The appellants left the spot when they found that Harihar Singh was dead or unconscious. The victim Sonwati took her husband Harihar Singh on a cot to her house with help of Laldhari (P.W.4) and Devnath (P.W.5). After hearing the entire narration of the story from victim Sonwati, the complainant Hiraman told her that presently there was no arrangement for the treatment of the deceased Harihar Singh and therefore, he would take him to the city in the early morning. However, on 13.9.2004, Ramkali went to the house of Hiraman and informed him that her father had expired. Hiraman went to the house of Harihar and saw his dead body. Thereafter, he went to the Police Station Gadhwa and lodged the FIR. The police registered a case and the dead body of the deceased Harihar Singh was sent for post-mortem to Community Health Center, Chitrangi, where Dr.Harishankar Vaishya (P.W.15) had performed the post-mortem on the body of the deceased
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 and gave his report, Ex.P/25. Dr.Vaishya found 14 injuries to the victim caused by hard and blunt object on various parts of body. He found that 3rd, 4th, 5th, 6th and 7th ribs of right side of the deceased were broken and the left lung was also ruptured and the deceased died due to such injuries, specially due to rupture of his lung. He also examined the victim Sonwati and gave his report, Ex.P/24-A. He found six injuries to the victim Sonwati on various parts of her body including the hands, legs and back. After due investigation, a charge-sheet was filed before the JMFC, Deosar, who committed the case to the Sessions Court and ultimately it was transferred to the learned Second Additional Judge to the First Additional Sessions Judge, Sidhi.
4. The appellants abjured their guilt. They did not take any specific plea but, they had stated that they were falsely implicated in the matter. However, no defence evidence was adduced.
5. After considering the prosecution's evidence, the learned Additional Sessions Judge, convicted and sentenced the appellants as mentioned above.
6. We have heard the learned counsel for the parties at length.
7. Learned counsel for the appellants has submitted that there was no cognate evidence led by the prosecution to
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 prove that the appellants had assaulted the deceased Harihar Singh with sticks. However, his contention appears to be incorrect. In the present case, there are 5 eye witnesses. Out of them, Chhote Baiga (P.W.6) has turned hostile, whereas, Sonwati (P.W.2), Ramkali (P.W.3), Shiv Kumar (P.W.7) and Shobhnath Singh (P.W.8) have stated about the incident and categorically alleged that the appellants assaulted the deceased Harihar Singh and the victim Sonwati by sticks. The learned counsel for the appellants has submitted that the witnesses did not try to save the deceased Harihar Singh and therefore, the testimony of such chance witnesses cannot be accepted. The contention advanced by the learned counsel for the appellants appears to be related with the witnesses Shiv Kumar (P.W.7) and Shobhnath (P.W.8) otherwise, the witness Sonwati (P.W.2), wife of the deceased, not only tried to save her husband but, she also fell upon her husband and in return sustained six injuries on her body.
8. Shiv Kumar and Shobhnath have stated that at the time of the incident, they were grazing cattle nearby the place of incident and on hearing the outcry, they saw the incident. Due to fear of the appellants, they did not visit near to the deceased Harihar Singh. Their version is duly proved by their conduct that after the incident, Sonwati
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 called Laldhari (P.W.4) and Devnath (P.W.5) to take her husband to her house. The witnesses Shiv Kumar and Shobhnath Singh did not assist Sonwati in taking her husband to their house. If these witnesses were related or interested with the deceased Harihar Singh then, they would have helped the victim Sonwati in taking her husband to her house. Looking to the conduct of these witnesses, it would be apparent that they were afraid of the appellants and therefore, after seeing the entire incident, neither they intervened, nor they helped the victim Sonwati thereafter. Hence, due to non-intervention of these witnesses during the incident, their testimony cannot be discarded. Sonwati (P.W.2) and Ramkali (P.W.3) have clearly stated about the incident and thereafter, Sonwati called Laldhari (P.W.4) and Devnath (P.W.5), who took the deceased on a cot to the house of Sonwati. Laldhari and Devnath have also stated that the victim Sonwati told about the incident to them and they proved the first version about the incident as informed by Sonwati, which corroborates the testimony of the injured witness Sonwati (P.W.2).
9. Also, Sonwati had sustained six injuries, which could not be caused by her falling on Earth as suggested by the defence counsel to Dr.Harishankar Vaishya (P.W.15) and therefore, it would be apparent that the victim Sonwati was
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 an injured witness and her testimony should be believed. The witness Laldhari (P.W.4) has stated that when he reached to the spot, the witness Ramkali told about the entire incident and she was also present at the spot. However, Ramkali (P.W.3) has admitted in para 3 of her cross-examination that when she reached the spot, the assailants had already disappeared. According to Ramkali herself, she reached to the spot soon after the incident and she was not the eye witness.
10. The learned counsel for the appellants has submitted that FIR was not lodged within reasonable time and hence it cannot be believed. If the facts of this case are examined according to the circumstances then, the deceased Harihar Singh was the only person in the family, who could make arrangement of necessary things. And when he sustained the injuries, the victim Sonwati could take him to his house with help of witnesses Devnath and Laldhari. He called Hiraman (P.W.1) and intimated him about the incident, so that an arrangement for treatment etc. of the deceased may be done. However, Hiraman expressed his inability to help her because, in the night, it was not possible for him to arrange for the transportation of deceased Harihar Singh and ultimately, he succumbed to the injuries. After considering the evidence given by Hiraman, Sonwati,
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 Laldhari and Devnath, it would be apparent that the victim Sonwati did not have any manual assistance to her except the witness Hiraman. Hiraman did not go to the police station in the evening or night but, after death of the deceased, he went to the police station and lodged the FIR. If it was possible for Sonwati to take her injured husband to hospital for medical aid or she was in a position to get her own treatment then, certainly she could lodge the FIR soon after the incident. Looking to the helplessness of the victim Sonwati, FIR could be lodged on the next day and therefore, it cannot be held that the FIR was lodged with delay and it should not be relied upon. The appellants could not show any enmity with the witness Hiraman, so that he would have lodged a false FIR against them. He had lodged the FIR narrating the facts as told by the victim Sonwati. Under such circumstances, looking to the conduct of Sonwati and Hiraman, FIR, Ex.P/1 lodged by the complainant Hiraman cannot be discarded and it could be used as a corroborative piece of evidence.
11. Dr.Harishankar Vaishya (P.W.15) has examined the dead body of the deceased Harihar Singh and gave his report, Ex.P/25. He found the following injuries on his body:-
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 S.No. Injury Size Place of Injury Weapon
1. Contusion 6 cms x 2 cms Rt. forearm near Blunt elbow joint Object.
2. Contusion 9 cm x 2.5 cms Back (Rt. Side) Blunt Object.
3. Contusion 10 cms x 2.5 Back (Rt.side) Blunt cms Object.
4. Contusion 10 cm x 2 cms Back (Left side) Blunt Object.
5. Laceration 3 cms x 1 cm x Rt. forearm Blunt 1 cm Object.
6. Contusion 6 cms x 2 cms Rt. foot Blunt Object.
7. Contusion 6 cms x 2 cms Left foot Blunt Object.
8. Contusion 8 cms x 2 cms Chest (left side) Blunt Object.
9. Contusion 9 cms x 2 cms Chest (left side) Blunt Object.
10. Contusion 8 cms x 2 cms Chest (Rt. Side) Blunt Object.
11. Contusion 16 cms x 2 cms Chest (Left side) Blunt Object.
12. Contusion 8 cms x 2 cms Left forearm Blunt Object.
13. Fractured Rt. forearm Near elbow Blunt bone (radius joint. Object.
and ulna)
14. Fractured Rt. post ribs 3rd, 4th, 5th, 6th, Blunt and 7th ribs Object.
(All are ante-mortem injuries and duration between 24-48 hours).
12. The deceased had sustained as many as 14 injuries caused by hard and blunt objects. Due to such injuries, 3rd, 4th, 5th, 6th, and 7th ribs of right side of the deceased were found fractured and consequently, the right
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 lung was ruptured. According to Dr.Harishankar Vaishya, death of the deceased was homicidal in nature. A suggestion was given to this witness from the side of the appellants that Harihar Singh had sustained such injuries due to fall in a ditch but, Dr.Harishankar Vaishya did not accept such a suggestion. The post-mortem report proved by Dr.Harishankar Vaishya corroborates the allegations made by the victim Sonwati (P.W.2) and other eye witnesses against the appellants.
13. There is no discrepancy in the statement of eye witnesses, supporting witnesses and FIR, Ex.P/1 about the names of the appellants. Each eye witness has stated against all of the appellants. Hiraman (P.W.1) has also stated that when he was called in the evening, he went to the house of the deceased Harihar Singh and met him. Harihar Singh told him about the assailants. A suggestion was given to this witness as to why he did not mention such a fact in the FIR, Ex.P/1. However, the complainant Hiraman (P.W.1) has given an explanation that he informed the police about the incident as told by Sonwati and therefore, he did not inform about the wordings told by the deceased to him. Ramkali has also proved that Hiraman visited the house of the deceased for two times. Firstly, in the evening of the incident and secondly on the next day morning when the
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 deceased had already expired. As discussed above, there was no reason to the witness Hiraman to tell something against the appellants and therefore, his testimony should be believed. He is an illiterate villager and therefore, it was possible that he could not narrate the facts in detail to the police at the time of lodging the FIR. Under such circumstances, the oral dying declaration as proved by the witness Hiraman also corroborates the testimony of the victim Sonwati.
14. On the basis of the evidence advanced by the prosecution, the testimony of eye witnesses Sonwati (P.W.2), Shiv Kumar (P.W.7) and Shobhnath (P.W.8), duly corroborated by the FIR, Ex.P/1, the statements of witnesses Laldhari (P.W.4) and Devnath (P.W.5), post-mortem report, Ex.P/25 and MLC report of the victim Sonwati, Ex.P/24-A as proved by Dr.Harishankar Vaishya (P.W.15) is believable and therefore, the prosecution has succeeded to prove its case beyond doubt against that appellants that each of them assaulted the deceased Harihar Singh with sticks and killed him. It is also proved beyond doubt that the appellants voluntarily caused hurt to the victim Sonwati with sticks.
15. It is submitted by the learned counsel for the appellants that the appellants were falsely implicated due to enmity. However, such contention cannot be accepted. It is
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 true that there was enmity between the deceased and the appellants. Sonwati (P.W.2) has stated that the deceased Harihar Singh was born from elder wife of one Rama Singh. Her father-in-law Rama Singh had 3-4 wives and the accused Babloo Singh was son of another wife of Rama Singh. Accused Laxan Dhari is cousin of the accused Babloo Singh. Since there was a dispute of some property which was let out to the witness Chhotte Baiga (P.W.6), the appellants were quarrelling with him. It is not denied by the appellants that they had enmity with the complainant due to dispute over land. Enmity is a double edged weapon. Due to enmity, one can assault his enemy or due to enmity, someone can implicate the enemy for an offence done by someone else. In the present case, soon after the incident, Sonwati told the entire story to the witnesses Laldhari and Devnath and thereafter, she told the entire story to Hiraman in the evening. It was not a case of robbery or crime committed by some unknown persons, so that the victim could not identify the actual culprits. It is a case of broad day light and there was no dispute relating to identification. Hence, there was no reason with the victim Sonwati to leave the actual culprits and to falsely implicate the appellants. Looking to the number of injuries if she says that four persons (appellants) were the assailants then, her testimony
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 should be believed. Under such circumstances, no doubt is created in the prosecution's case due to the fact of enmity between the deceased and the appellants.
16. In alternate, the learned counsel for the appellants has submitted that there was no premeditation of mind to the appellants. The quarrel took place in the spur of moment. The deceased sustained simple injuries on various parts of his body. Some of the injuries were grave and the appellants had not intended to kill the deceased and therefore, they could not be convicted for offence under Section 302 of IPC. He has placed his reliance upon various judgments passed by Hon'ble the Apex Court in cases of "Rampal Singh Vs. State of Uttar Pradesh", [(2012) 8 SCC 289], "Ranjitham Vs. Basavaraj and others", [(2012) 1 SCC 414], "Baboo Khan & another Vs. State of Madhya Pradesh", [(2009) Cr.L.J. 125] and "Muthu Vs. State", [AIR 2008 SC 1], to show that the crime committed by the appellants falls in the category of Section 304 (1) of IPC. In the aforesaid judgments, Hon'ble the Apex Court has discussed the principles that when the offence under Section 302 of IPC shall constitute and when it will not constitute. However, it depends upon the facts of a particular case. Hence, it is to be seen as to whether the facts of the present
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 case are such, so that no offence under Section 302 of IPC would be made out.
17. It is true that the incident took place in a spur of moment but, pre-meditation is a process of mind and a person may make up his mind soon before the incident. If the conduct of the appellants is examined in the present case then, the appellants went to the field which was in possession of the deceased Harihar Singh and Chhote Baiga was ploughing that field as a lessee of the deceased Harihar Singh. The appellants started quarreling with the witness Chhote Baiga and after hearing the noise, the deceased Harihar Singh also came out of the house. Under such circumstances, it would be apparent that the appellants were the aggressors, who went to the field fully armed with lathis. It is thus apparent that each of the appellants had participated in the crime. The victim sustained few grave injuries on non vital parts of the body as well as on the vital part (chest) of the body. Various bones like right radius, right ulna and five different ribs were broken in the incident, which indicates that the appellants assaulted the deceased Harihar Singh in a forceful manner. Also, they continued to assault the deceased though he fell down on the Earth. They also continued to assault the deceased when Sonwati (P.W.2), wife of the deceased fell upon him to save him. If
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 the appellants did not intend to kill the deceased then, the quarrel would have stopped when the deceased Harihar Singh fell down on the Earth. The deceased Harihar Singh was unarmed and all alone. If the appellants had intention only to cause injuries to deceased Harihar Singh due to any provocation they then, after giving 2-3 blows, would have stopped. But, the appellants not only gave powerful blows to the deceased, they continued to give the blows even after he fell down on the field and also when the victim Sonwati laid upon the deceased to save him. Sonwati had sustained 6 injuries which indicates that the appellants were interested to kill the deceased and therefore, they continued to give lathi blows to the victim Sonwati, so that she would leave her husband and the appellants could assault him further. Under such circumstances, if conduct of the appellants is considered as depicted by the circumstances and medical evidence that they caused 16 injuries to the deceased Harihar Singh, out of which, 7 injuries were grave, it is established by the prosecution that each of the appellants had intended to kill the deceased Harihar Singh.
18. If the principles relating to culpable homicide not amounting to murder and amounting to murder as laid by Hon'ble the Apex Court in aforesaid judgments are applied to the present case then, certainly the death of the deceased
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 Harihar Singh was caused by the appellants with intention to cause death and therefore, the appellants are guilty of offence under Section 302 of IPC.
19. As it is observed that each of the appellants assaulted the deceased in a forceful and brutal manner therefore, the common intention of the appellants was to kill the deceased Harihar Singh and therefore, each of them is responsible for offence under Section 302 of IPC with help of Section 34 of IPC. Each of the appellant is responsible for the crime committed by the co-appellants. Hence, the learned Additional Sessions Judge has rightly convicted the appellants for offence under Section 302/34 of IPC.
Similarly, it is proved beyond doubt that each of the appellants had voluntarily caused injuries to the victim Sonwati and therefore, each of them is also guilty of offence punishable under Section 323/34 of IPC.
20. So far as the sentence is concerned, the appellants are in jail since the year 2004. The sentence for offence under Sections 302/34 and 323/34 of IPC were directed to run concurrently and therefore, they have already undergone sentence for offence under Section 323 of IPC. Hence, there is no need to discuss for any modification of sentence for offence under Section 323/34 of IPC. The learned Additional Sessions Judge did not impose a death sentence upon the
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Criminal Appeal No.1220 of 2005 Criminal Appeal No.1227 of 2005 appellants and a minimum sentence is imposed upon the appellants for offence under Section 302/34 of IPC. Hence, there is no need to interfere in the sentence imposed upon the appellants by the trial Court.
21. On the basis of the aforesaid discussion, there is no reason to interfere in the judgment of conviction and sentence passed by the learned Additional Sessions Judge. Hence, the appeals filed by the appellants cannot be accepted. Consequently, both the appeals are hereby dismissed by maintaining the conviction as well as the sentence directed by the trial Court against all of the appellants.
(AJIT SINGH) (N.K.GUPTA)
JUDGE JUDGE
/8/2014 /8/2014
Pushpendra