Madhya Pradesh High Court
Brajlal Kushwaha vs The State Of M.P on 1 August, 2012
Author: T.K.Kaushal
Bench: T.K.Kaushal
(1) Cr.A.No. 1770/2003
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE T.K.KAUSHAL
CRIMINAL APPEAL NO. 1770/2003
APPELLANT : Brajlal Kushwaha, aged about 40 years, S/o
Nirbhay Kushwaha, R/o Tendua P.S. Mauganj,
District Rewa (M.P.)
Versus
RESPONDENT: State of Madhya Pradesh through P.S.Mauganj
(M.P.).
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For the Appellant : Ms. Aparna Singh, Advocate.
For the Respondent/State : Shri Amit Pandey, Panel Lawyer.
Date of hearing : 26/07/2012
Date of judgment: 01/08/2012
(J U D G M E N T )
Per: Rakesh Saksena; J,
Appellant has filed this appeal against the judgment dated 12.9.2003 passed by Additional Sessions Judge, Mauganj in Sessions Trial No. 133/2001, convicting the appellant under Section 302 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 1000/-. In default of payment of fine, further rigorous imprisonment for four months.
2. It is to be noted that the accusation against appellant is that he along with his son Ashok committed murder of his father Nirbhay Kushwaha and brother Har Prasad Kushwaha.
3. Facts of the prosecution case are that on 5.4.2001 at about 8 A.M. (2) Cr.A.No. 1770/2003 Rammilan, Usha and Dhirjua were picking up flowers of Mahua in a field. Accused Brajlal, his wife, sons Ashok & Sunil and daughter Indrakali also reached there for picking Mahua. Nirbhay, the father of Brajlal went there and asked these persons not to collect Mahua flowers from there, thereupon a quarrel ensued between Brajlal and Ashok on one side and Nirbhay on the other side. Ashok brought a Tangi (Axe) and a stick from his house and both of them started assaulting Nirbhay. Har Prasad, another son of Nirbhay when rushed to save his father, both the accused assaulted him also with stick and axe. Nirbhay and Har Prasad fell unconscious. On raising hue and cry by Usha, Dhirjua & Rammilan, Umashanker Ramshanker and other village people reached there. Accused persons ran away. These people carried injured Nirbhay and Har Prasad to police station Mauganj, where Rammilan (PW3) lodged the First Information Report Ex. P/5.
4. Injured persons were sent to Hospital Mauganj. Dr. Arvind Mishra (PW20) examined their injuries and gave first aid treatment to them. However, finding their injuries serious, referred them for further treatment to hospital Rewa. During treatment, on 6.4.2001, both the injured persons died in G. M. Hospital, Rewa. On an intimation from hospital, merg reports were recorded by police and the dead bodies of both the deceased persons were sent for postmortem examination.
5. Dr. S.K.Pathak (PW14) performed the postmortem examinations and vide his reports Ex. P/18 and Ex. P/19 opined that the death of deceased (3) Cr.A.No. 1770/2003 persons was caused by injuries found on their bodies. After investigation, charge sheet against accused Brajlal was filed in the Court of Magistrate and the case was sent for trial. Case of accused Ashok was sent to Juvenile Court.
6. Learned trial Judge, upon trial and after appreciation of evidence held the appellant guilty, convicted and sentenced him as mentioned above.
7. Ms. Aparna Singh, learned counsel for the appellant submitted that the learned trial Judge mis-appreciated the evidence of eye witnesses which was inconsistent and contradictory. The conviction of appellant is bad because it is based on the evidence of closely related eye witnesses. In the alternative, learned counsel submitted that the conviction of appellant under Section 302 of the Indian Penal Code was not justified, in the facts and circumstances of the case, at the most he could have been held liable under Section 304-I of the Indian Penal Code. On the other hand, Shri Amit Pandey, learned Panel Lawyer for the State justified the finding of conviction of appellant recorded by the trial Court and submitted that the evidence of eye witnesses adduced by the prosecution was cogent, consistent and reliable.
8. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully.
9. It has not been disputed that Nirbhay and Har Prasad have died and that they died a homicidal death. From the evidence of Shivanand (PW1), (4) Cr.A.No. 1770/2003 Umashanker (PW2), Rammilan (PW3), Dhirjua (PW4), Usha Devi (PW5), Ranu (PW7) and Ramwati (PW11), it is revealed that Brajlal and his son Ashok assaulted both the deceased persons by Lathi and Tangi. These injured persons were taken to police station Mauganj, where the first information report Ex. P/5 was lodged by Rammilan (PW3). It was recorded by A.S.I. L.P.Patel (PW16). The injuries of injured persons were examined by Dr. Arvind Mishra (PW20). He found following injuries on the body of Har Prasad:-
(i) Lacerated wound 1.5 x 1/2 x 1/4 cm on left side of his face,
(ii) lacerated wound 1 x 1/2 x 1/4 cm on left lower jaw,
(iii) lacerated wound 1/2 x 1/4 x 1/4 cm on left ear pinna,
(iv) swelling 2 x 1 cm on right side back &
(v) swelling 2 x 1 cm on front side of head.
All these injuries were caused by hard and blunt object. He advised X-ray examination of injury no.5-head injury. Other injuries were simple in nature. Injury report Ex. P/29 was written and signed by him.
10. Dr. Arvind Mishra (PW20) found following injuries on the body of Nirbhay:-
(i) Lacerated wound 1/2 x 1/4x 1/4 cm mid parietal region of skull.
This injury was caused by hard and blunt object. Injury report Ex. P/ 30 was written and signed by him.
11. Since the head injuries of injured persons were serious, he referred them to Rewa Hospital for further treatment. During the treatment at (5) Cr.A.No. 1770/2003 G.M.Hospital, Rewa both the injured persons died. After recording murg reports, dead bodies were sent for postmortem examination. Dr. S.K.Pathak (PW14) conducted the postmortem examination of both the deceased persons. He found following injuries on the body of Har Prasad:
(i) Stitched wound on left lower jaw, (ii) stitched wound with swelling on right side of lower lip, (iii) swelling on left maxillary region 4" x 2" & (iv) swelling on left fronto parital region 8" x 6".
On internal examination of the body, Dr. Pathak found that left maxillary bone and lower jaw of deceased was fractured. On opening skull, he found his left parietal bone fractured having 4" x 3" blood clot. There was hemorrhage from brain and cerebro spinal fluid was coming out.
In his opinion, the cause of death was cardio respiratory failure due to injury of brain. This injury was homicidal in nature and was sufficient to cause death. Postmortem report Ex. P/18 was written and signed by him.
12. On the same day Dr. S.K.Pathak (PW14) conducted the postmortem examination of Nirbhay and found following injuries:-
(i) Stitched wound on right side of skull, (ii) swelling injury on left temporal parietal region 7" x 5" & (iii) contusion on left arm near shoulder 6" x 4".
On internal examination, he found depressed fracture of fronto temporal region and extra-dural hematoma was present. The death of Nirbhay was caused by injury to vital organ brain. His postmortem report (6) Cr.A.No. 1770/2003 Ex. P/19 was written and signed by him.
13. From the above evidence, it has been undoubtedly proved that deceased Har Prasad and Nirbhay died a homicidal death.
14. According to prosecution, the incident was witnessed by Shivanand (PW1), Rammilan (PW3), Dhirjua (PW4), Usha (PW5) and Ranu (PW7). All these witnesses consistently stated that at about 8 A.M., Nirbhay, Brajlal, Ashok, Brajlal's wife, wife of Ramnivas, his son and other family members were present beneath the tree of Mahua at the outskirt of village Tendua. When Shivanand (PW1) happened to pass from there, he heard some hot talks going on between them. Suddenly, Brajlal dealt a blow of lathi on the head of Nirbhay due to which he fell down. Looking this, when Har Prasad rushed to the place of occurrence, Ashok and Brajlal assaulted him with lathi and tangi. Both the accused persons ran away. Similarly Ramnivas, a nephew of accused Brajlal and also of deceased stated that they had come to pick Mahua. When Brajlal and Ashok reached there, his grand father Nirbhay asked them to take Mahua in an orderly manner, but Brajlal did not yield to it. When Nirbhay insisted, Brajlal asked his son Ashok to fetch lathi and tangi from his house. When Nirbhay went towards a Mango tree, Brajlal spread the Mahua collected by sister Usha and trampled it. When Nirbhay came back and admonished him, Brajlal started beating Nirbhay with lathi. Har Prasad, who was grazing cattle near by, rushed there and asked Brajlal to not to beat his father, but Ashok and Brajlal assaulted him also with lathi and tangi. On hearing hue and cry, number of persons (7) Cr.A.No. 1770/2003 assembled there. The evidence of these witnesses finds corroboration from the evidence of Usha Devi (PW5), Ranu (PW7) and Shivanand (PW1).
15. Learned counsel for the appellant submitted that the aforesaid eye witnesses were closely related to deceased, therefore, their evidence was not reliable particularly when there were inconsistencies in it. We find no substance in the submission made by learned counsel for the appellant because deceased persons Nirbhay and Har Prasad were father and son and similarly accused Brajlal was the son of Nirbhay and Ashok was his grand son. In these circumstances, it cannot be held that there was any reason for the family members to have made false accusation against the accused persons. Inconsistencies in the evidence of witnesses were in fact not material. The evidence was consistent on the point that deceased Nirbhay asked Brajlal to not to collect Mahua on that day or to collect Mahua in a seriatim, but we find no inconsistency on the point that Brajlal assaulted his father Nirbhay with lathi and tangi and when Har Prasad came and tried to save him, he also dealt lathi blows to him and ultimately, both the injured persons died. The evidence of eye witnesses stands corroborated from the evidence of Rammilan (PW3), Budshen Saket (PW6), Ramashanker (PW8) and Ramwati (PW11), who were present in the vicinity and had heard quarrel between accused and deceased Nirbhay Singh and after some time seen deceased persons lying injured in the spot. Budshen Saket (PW6) deposed that when he reached at the spot saw accused Brajlal going from the spot with a tangi and stick. Umashanker (8) Cr.A.No. 1770/2003 (PW2) stated that when he reached at the spot soon after the incident, Shivanand (PW1) told to him that Brajlal and Ashok assaulted Nirbhay and Har Prasad.
16. Evidence of Rammilan (PW3) stands corroborated by the first information report Ex. P/5 lodged by him immediately after the occurrence and also by the medical evidence of Dr. Arvind Mishra (PW20) and Dr. S.K.Pathak (PW14), who examined the injuries of both the deceased persons. In our considered opinion, there is absolutely nothing on record to dissuade us from holding that appellant assaulted deceased persons, as a result of which, they died. Accordingly, the finding recorded by the trial Court holding that appellant along with Ashok caused the death of Nirbhay and Har Prasad is affirmed.
17. Learned counsel for the appellant next submitted that though two persons died in the incident, but the circumstances in which the assault was made, it could not be held that appellant committed murder, since the incident had erupted suddenly on the spur of the moment without premeditation. Learned counsel submitted that in the same occurrence appellant also suffered injury which was not explained by the prosecution. We find substance in the submission made by learned counsel for the appellant. Rammilan (PW3) deposed that other persons including accused were collecting Mahua from before, but when deceased Nirbhay reached there he insisted that Mahua should be picked in some particular order. In para-9 of his evidence, he stated that Nirbhay asked all of them not to take (9) Cr.A.No. 1770/2003 Mahua on that day. Nirbhay had partitioned his property and had given shares to all concerned. This Mahua tree was kept in joint ownership, but about a year back accused only used to take Mahua from the said tree. Dhirjua (PW4) stated that as soon as Nirbhay reached there he declared that he had grown Mahua tree, therefore, he will not let any body take Mahua from it and then Brajlal and Nirbhay grappled with each other. In the meantime, deceased Har Prasad also reached there and intervened in the quarrel. These facts were admitted by Usha (PW5) also. Investigating Officer R.S.Parihar (PW17) stated that he arrested Brajlal on 7.4.2001 and also recorded a report lodged by him. Head Moharir Balendra Shekhar sent Brajlal to hospital for medical examination of his injuries. It is true that no report as stated by Inspector Parihar has been produced in this case, but from the evidence of Dr. Arvind Mishra (PW20), it is revealed that on the same day i.e. 5.4.2001, he examined injuries of Brajlal and found one lacerated wound 1 ½ x ½ x 1/4 cm on the right side of his head and referred him for X-ray examination of the said injury. This injury was caused by hard and blunt object. Injury report Ex. P/31 was written and signed by him.
18. In the above circumstances, in our opinion, it can be inferred that the incident was not premeditated and it occurred just on the spur of the moment. Brajlal though wielded a Tangi also, but as revealed from the injury reports of the deceased persons, he did not use the same from sharp edge side. These circumstances, in our opinion, clearly indicated that the (10) Cr.A.No. 1770/2003 intention of appellant Brajlal was not to commit murder of deceased persons, therefore, his conviction under Section 302 of the Indian Penal Code was not justified. But, since he caused injuries with stick on the vital parts of the body of deceased persons like head, it could be inferred that he intended either to cause death or to cause such bodily injuries as were likely to cause their death making him liable to be convicted under Section 304-I of the Indian Penal Code.
19. For the foregoing reasons, the conviction of appellant under Section 302 of the Indian Penal Code as awarded by the trial Court is modified to Section 304-I of the Indian Penal Code and his sentence is reduced to the period of rigorous imprisonment for 10 years. Appellant is said to be in jail from 7.4.2001. If he has served out the sentence, he be released forthwith if not required in any other case.
20. Appeal partly allowed.
(RAKESH SAKSENA) (T.K.KAUSHAL)
JUDGE JUDGE
AD/