1 HIGH COURT OF JUDICATURE AT JABALPUR (M.P.) SINGLE BENCH Criminal Appeal No. 1777/2009 Bhusiwa @ Busiwa Raidas and others Vs. State of Madhya Pradesh Shri Rajesh Sen, learned counsel for the appellants. Ms. Savita Chaudhary, learned PL for the State. Date of hearing: 26/04/2011 Date of Judgment: 26/04/2011 J UD G M E N T Appellants have preferred this appeal under Section 374(2) of the Code of Criminal Procedure, being aggrieved by the judgment dated 3/9/2009 passed in S.T. No. 207/2008 by Third Additional Sessions Judge, Satna whereby the appellants have been convicted under Section 304-I read with Section 34 of Indian Penal Code and sentenced to undergo rigorous imprisonment for 7 years and fine of Rs. 200/- each , with default stipulations. 2. Prosecution case in short is that on 25.7.2008 there was some quarrel between Meiyadeen and Chunnu Raidas S/o Bhuseeva Raidas. It is further alleged that at about 5 O'clock when complainant Kamlesiya @ Kailasiya Raidas (PW1) was working with her husband at their field at that time 2 appellants Bhusiwa, Rajabhaiya Raidas, Chunkauna Raidas and Chunnu Raidas came there having with lathis and assaulted her husband Meiyadeen. It is further alleged that when complainant tried to save her husband, appellant Rajabhaiya beaten her by foot as a result of which she fell down. It is further alleged that when complainant Kamlesiya Raidas made hue and cry, Langdibai (PW2) came there, the appellants threatened them and fled away. Since there was heavy rain in the night, she had not went to lodge the report. Thereafter, in the next morning complainant proceeded to lodge the report alongwith injured (her husband), who on the way succumbed to the injuries. Complainant lodged the report Ex.P/2 at police Station Nayagaon, Chitrakut. The dead body of the deceased was sent for postmortem examination. Dr. Sunil Karkhur (PW5) performed the autopsy on the body of the deceased and found ¼” x ¼” injury dark reddish over the middle of the scalp with visible swelling over middle of skull and opined that cause of death was shock due to head injuries. He prepared the postmortem report Ex.P/7. 3. During investigation, appellants were arrested and after usual investigation, they were charge sheeted before the Judicial Magistrate, First Class, Satna, who committed the case for trial to the Court of Session's. Learned Additional Sessions Judge framed the charges against the appellants under Section 302/34 of IPC. Appellants abjured the guilt and pleaded false implication. 3 4. On appraisal of evidence on record, the trial Court convicted and sentenced the appellant as mentioned hereinabove. Hence this appeal. 5. Learned counsel for the appellants submitted that the trial Court committed illegality in not appreciating the evidence on record in its proper perspective, therefore he prays for setting aside the impugned judgment and conviction and sentence recorded against the appellants by the trial Court and further prays for acquittal of the appellants. 6. On the other hand, learned counsel for the State has supported and justified the impugned judgment and finding of the Trial Court. 7. I have perused the impugned judgment, evidence and other material on record. 8. Kamlesiya (PW1) deposed that at about 4 O'clock in the evening when she was working with her husband Meiyadeen on her field at that time Bhusiwa (Appellant No.1), Chunnu (Appellant No.4), Raja Bhaiya (Appellant No.2) and Chunkauna (Appellant No.3) having lathis in their hands came there. She further deposed that someone assaulted to her husband by lathi. When she intervened her husband in turn appellant Raja Bhaiya gave two blows by foot on her as a result of which she fell down. She further stated her husband was beaten by all the four appellants. She claimed that she lodged the first 4 information report Ex.P/2. 9. Langdibai (PW2) primarily claimed that she was cutting grass near the field of complainant and after listening the hue and cry, she reached to the place of incident where she saw that appellants were beating Meiyadeen. It is undisputed that Langdibai (PW2) is sister-in-law (Devrani) of complainant Kamlesiya (PW1) and complainant Kamlesiya is the wife of deceased Meiyadeen. It is well established principle of law that relative witnesses cannot be disbelieved only on the basis of their near relations but it requires strict scanning of their statements. 10. Keeping in view the aforesaid principle of law when I carefully scrutinized the aforesaid statement of witness, I found that Langdibai (PW2) is not an eye witness because she admitted in her cross- examination that she has not seen the incident, therefore, she was not able to say that which appellant assaulted on which part of the body of Meiyadeen. She further stated that she was not present at the time of incident, therefore, police had not interrogated her. She further admitted that she deposed the incident first time in the Court. In these circumstances, it appears that Langdibai (PW2) was not present at the time of incident and being a near relative she exaggerated the facts before the Court. Thus, trial Court committed illegality in believing the statement of this eye witnesses. 5 11. As far as Kamlesiya (PW1) is concerned, though she also admitted in her cross-examination in para-6 that since she was inside her house, therefore she was not able to see that which appellant assaulted, on which part of the body of her husband but after scanning the whole statement, I am of the view that Kamlesiya (PW1) is a rustic villager house wife and she is unable to understand the suggestions put up by experienced lawyer. At the same time she is also not held truthful witness. Since Kamlesiya was working with her husband and how and when she went to her house has not been brought on record. In these circumstances, her admission in regard to the fact that she was inside the house cannot be believed. 12. Further on careful scanning of statement of Kamlesiya (PW1), I found that she deposed that appellants came there and one of them gave a lathi blow to her husband. She did not use the word that 'all of them gave lathi blows' it means a person who intercepted her and gave a foot blow to her, was a person, who gave a lathi blow on the head of her husband. According to Kamlesiya, Rajabhaiya (A/2) was the person, who assaulted her husband. She further deposed that all appellants had beaten her husband Meiyadeen but this fact did not find support from the medical evidence. 13. As per Dr. Sunil Karkhur (PW5), he found only one injury of ¼” x ¼” over middle of scalp. He further admitted that there was no other injury on any 6 part of the deceased Meiyadeen. This fact is corroborated by the postmortem report prepared by him. In these circumstances, it appears that being a near relative (wife of deceased), Kamlesiya (PW1) exaggerated the facts of beating of her husband by all the accused/appellants and since this fact has not been supported by the medical evidence, therefore beating by other than Rajabhaiya (A/2), cannot be held to be believable. 14. It is not disputed that Meiyadeen succumbed to the injury caused on his head. Now question arises that what offence proved against appellant No.2 Raja Bhaiya. 15. Learned counsel for the appellants submitted that prosecution failed to prove the fact that injury was caused with an intention to cause death as well as it is also not proved on record that injury was caused with knowledge that it is likely to cause death. In these circumstances, the case of appellant Rajabhaiya would be fallen under Section 325 of the IPC. He further submitted that appellant Rajabhaiya is in jail since 24/7/2008 (i.e. approximately two years and nine months) and interest of justice would be met, if he be convicted for the jail sentence to the period already undergone and fine. 16. After taking into consideration the aforesaid contention of the learned counsel for the appellant 7 and the fact that it was a single blow of lathi on the head of deceased Meiyadeen and there was no other injury on his whole body, it can be safely inferred that appellant Rajabhaiya (A/2) has no intention to cause death but he has knowledge that it is likely to cause death because he had chosen the vital part of body to hit. 17. Considering the nature of injuries, it can be said that appellant Rajabhaiya only has an intention to cause bodily injury as it likely to cause death of Meiyadeen. In these circumstances, the trial Court committed illegality in recording the conviction under Section 304-I of IPC. Same is liable to set aside, instead appellant Rajabhaiya convicted under Section 304-II of the IPC. 18. In the result, appeal of appellants Bhusiwa @ Busiwa Raidas (A/1), Chunkauna Raidas (A/3) and Chunnu Raidas (A/4) is allowed and conviction and sentence recorded against them is hereby set aside. 19. Appeal of appellant No. 2 Raja Bhaiya Raidas is partly allowed and his conviction and sentence recorded under Section 304-I of IPC is reduced to conviction under Section 304-II of IPC and he be sentenced to undergo RI for 4 years and fine of Rs. 200/-. In default of fine amount, he shall further suffer one months' simple imprisonment. 20. The appellants Bhusiwa @ Busiwa Raidas 8 (A/1), Chunkauna Raidas (A/3) and Chunnu Raidas (A/4) be set free, if they are not required in any other case. 21. Set off, of undergone period of jail sentence will be given at the time of preparation of supersession warrant. 22. Record of the trial Court be sent back alongwith copy of this judgment immediately for compliance and necessary action. (G.S. SOLANKI) JUDGE ravi