1 HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE (Division Bench: P.K. Jaiswal & I.S. Shrivastava, JJ.) Cri.A. No.746/2001 Bhagwansingh S/o Narayansingh Vs. State of M.P. Shri A.K. Saraswat, learned counsel for the appellant. Shri C.R. Karnik, learned G.A. for the respondent/State. Cri.A. No.672/2001 Nirbhaysingh S/o Jujharsingh Vs. State of M.P. Shri A. Siddiqui, learned counsel for the appellant. Shri C.R. Karnik, learned G.A. for the respondent/State. Cri.A. No.708/2001 Dulesingh S/o Dhulsingh Vs. State of M.P. Shri Jai Singh, learned senior counsel with Shri Valmik Sakargayen, learned counsel for the appellant. Shri C.R. Karnik, learned G.A. for the respondent/State. J U D G M E N T (27/08/2011) Per P.K. Jaiswal, J. 1. Since all the appeals relate to the same incident, this judgment shall govern the disposal of all the appeals. 2. The appellants have filed these three appeals against the judgment of conviction dated 8/5/2001, passed by the Additional Sessions Judge, Agar, Shajapur in Sessions Trial No.16/2000, by 2 which appellants – accused Bhagwansingh, Nirbhaysingh and Dulesingh, son of Dhulsingh have been convicted under Section 302/34 of the IPC and each of them have been sentenced to life imprisonment with fine of Rs.1,000/-. In default of payment of fine, each of them shall undergo further R.I. for 6 months. Accused Bhagwansingh has further been convicted under Section 326 of the IPC while accused Nirbhaysingh and Dulesingh, son of Dhulsingh have been convicted under Section 326/34 of the IPC and all of them have been sentenced to 4 years R.I. each with fine of Rs.500/-, in default of payment of fine, each of them shall undergo further RI for two months. 3. Brief facts of the case are that on 13/11/1999, in the afternoon at 2.00 p.m. complainant Bhanwarsingh (PW1) lodged an FIR at Police Station-Kanad, District Shajapur that on 13.11.1999 at 12.00 noon, he and his uncle Sardarsingh, resident of Chandangaon were returning from the agriculture field on the motorcycle of his uncle(Kaka) and he was a pillion rider. While returning at 12.00 noon when they reached at the culvert of Chandangaon, at Sutada road the accused Bhagwansingh, who was armed with lathi gave a lathi blow on the head of Sardarsingh, who was riding the motorcycle as a result of which he fell down and sustained injuries. Thereafter, accused persons namely Dulesingh, son of Dhulsingh and Nirbhaysingh caused stone injuries to Sardarsingh on his head and mouth. When complainant intervened to save his life, accused Bhagwansingh, who was armed with lathi, inflicted injuries on his hand and legs. It is also alleged that accused Dulesingh, son of Dhulsingh, Bhagwansingh and Nirbhaysingh, with a common intention to cause injuries to Bhanwarsingh, pelted stones on his head and mouth. On the basis of the complaint lodged by Bhanwarsingh(P.W.1), the alleged offence has been registered under Section 307/34 of the IPC by S.H.O. Anil Sharma(PW.13). 3 4. After the incident, the complainant (PW1) went to the village and on the way he met Kalu (PW7) and narrated the incident of causing injuries to Sardarsingh by the alleged three accused persons namely Bhagwansingh, Nirbhaysingh and Dulesingh, son of Dhulsingh. He after reaching the village narrated the whole incident to Jaswantsingh(PW.2) and went to police station to lodge the report. The villagers of Chandangaon gathered at the place of occurrence along with tractor and trolly and took the injured Sardarsingh to Agar Hospital. Due to the injuries sustained by him, he died on the way to the Hospital. His dead body was brought to the Agar Hospital. Assistant Sub-Inspector of Police Station Kanad, Sitaram Chouhan(PW.12) came to Agar Hospital and after seeing the dead body of Sardarsingh issued Safina form (Ex-P/15) and in presence of the witnesses, he prepared inquest report vide Ex.P/16 and by letter(Ex-P/17) directed for postmortem of the dead body. S.H.O. Kanad Anil Sharma(PW.13) visited the place of occurrence on the same day at 5.00 p.m. and prepared Naksha Mauka(Ex-P/22). and Blood stained soil, plain soil, blood stained wooden piece and five stones blood stained was taken into possession under Ex.P/2 from the place of occurrence. After death of Sardarsingh, Merg report was registered vide Ex-P/24 and in the FIR, Section 302 of the IPC was added. On 24/11/99, Dulesingh, son of Umraosingh was arrested vide arrest memo Ex-P/7. The other three accused namely Bhagwansingh, Nirbhaysingh, Dulesingh, son of Dhulsingh were arrested on 25/11/99 vide Ex-P/18, P/19 and P/20. On the basis of the memo of accused Nirbhaysingh, the SHO Anil Sharma(PW.13) seized one axe in presence of Ibrar Khan (PW.3) and seizure memo Ex-P/3 was prepared. From accused Nirbhaysingh in presence of panch witnesses, one axe was seized vide seizure memo Ex-P/4. 5. During investigation, they found that on the second day of Diwali, the accused persons namely Bhagwansingh, Nirbhaysingh, and 4 Dulesingh, son of Dhulsingh prepared a criminal conspiracy at the house of accused Nirbhaysingh to commit murder of Sardarsingh and, in furtherance of the said criminal conspiracy, they committed murder of Sardarsingh on 13/11/99. The seized articles were sent to FSL, Indore for its chemical examination. 6. After completion of investigation, charge-sheet was filed and the case was committed for trial. Against accused Dulesingh, son of Umraosingh, charge under Section 120-B of the IPC was framed whereas against the present accused persons namely Bhagwansingh, Nirbhaysingh and Dulesingh, son of Dhulsingh an offence under Section 302/34, 307/34 and 120-B of the IPC was registered. 7. After trial, the learned trial Court acquitted the accused Dulesingh, son of Umraosingh for the offence of criminal conspiracy. 8. During trial, appellants abjured their guilt and pleaded that they have been falsely implicated in the alleged offence. The defence of appellant Bhagwansingh, Nirbhaysingh, Dulesingh, son of Dhulsingh, is that due to their enmity with Mangilal(PW.10), ex-sarpanch (brother of deceased Sardarsingh), they have been falsely implicated in the alleged offence and prayed for their acquittal. They have not produced any defence witness in their defence. The learned trial Court after trial and upon appreciation of the evidence adduced in the case, found the present appellants guilty of intentionally causing death of Sardarsingh, convicted and sentenced them as indicated herein-above by the impugned judgment which has been challenged in these appeals. 9. Autopsy of the dead body was conducted by Dr. A.S. Khan(PW.11) on 13/11/1999 at Primary Health Centre, Agar, who gave a Postmortem report vide Ex-P/14 and found seven injuries on the body of deceased, which follows as under:- Face is swollen. Eyes and mouth are closed. There is coagulation of blood on the head, face, neck, shoulder and hands. Blood is coming from the both nostrils and inner side of ears. 5 Conjunctive congested, pupils are dilated. Fists are open. Tongue inside mouth. Rigormortis started upper limbs are adducted while lower limbs are straight. The following injuries are occurred over his body:- 1. Lacerated wound:- 2/ ½ '' x ¾'' x deep to left side of forehead. Local left side of frontal bone is break in to 3 pieces and brain matter came out oblique wound. 2. Lacerated wound:- 1 ½'' x ½'' x ¼'' over the lateral side of left eyebrow region oblique wound, 3. Lacerated wound:- 2 ½'' x ¾'' x deep to right side of forehead, oblique wound. The local right side of frontal bone of skull is fractured in to four pieces and brain matter came out. 4. Lacerated wound:- 2'' x ½'' x ½'' over the lateral side of right orbital fossa oblique wound. 5. Lacerated wound:- 1 ½'' x ½'' x ½'' over the middle part right parietal bone of skull, long wound. 6. Lacerated wound:-4'' x 1 ½'' x deep to middle part of occipital bone of skull, fracture , irregular wound. Brain matter came out from the local injury part. 7. Lacerated wound:- post side of right gluteal vague oblique wound. Dr. A.S. Khan(PW.11) opined that all the aforementioned injuries found on the body of the deceased could have been caused by 6 hard and blunt object. In the opinion of the Doctor, death was caused due to Coma as a result of head injuries. The duration about the death was between 2.30 to 3 hours old prior to performance of Autopsy. 10. As per M.L.C. Report, (Ex-P/8) the complainant Bhanwarsingh (PW.1) received the following injuries:- An old liner operation near on vertebral column, adjacent to it, just left side , size about 4 c.m. long. 1. A sharp cut wound on right fronto parietal region, linear, size 7.5. c.m. x deep exposing underlying bone abrasion of periostenm linear, 3 c.m. liner, clotting and oozing of blood present. 2. A huge swelling right forearm, ulnar border, near wrist 8 c.m. x 5 c.m. size. Haematoma present, acute pain and tenderness, two fractures present. 3. A large bruise on right thigh back, near hip, linear size 8.5 c.m. x 3 c.m. 4. A bruise on left ankle front, just above lateral malleolus 2 x 1 c.m. size. 11. Bhanwarsingh (PW.1) was advised for X-ray. Ex.-P/9 is his X- ray report. As per X-ray report, there is fracture of ulna lower end near wrist of right forearm. 12. The prosecution has examined in total 13 witnesses before the trial Court. 13. Complainant Bhanwarsingh(PW.1) is an injured eye-witness. Bahadursingh(PW.4) and Jorawarsingh(PW.5) are the witnesses of criminal conspiracy. Ibrarkhan(PW.3) is the panch witness. Jaswantsingh(PW.2) is the person to whom the injured 7 Bhanwarsingh(PW.1) met immediately after the incident and narrated the incident of causing injuries by the present appellants to the deceased Sardarsingh. 14. It is submitted by the learned counsel for the appellants that the learned trial Court has failed to appreciate that the prosecution is based on sole testimony of inured eye-witness Bhanwarsingh(PW.1) and there is material omissions and contradictions in the FIR, his 161 statement and court statement, which was recorded in the Court. It is also submitted that Bhanwarsingh(PW.1) is an interested witness being relative of Sardarsingh and his presence on the spot is doubtful. The learned trial Court, without properly appreciating his statement convicted the appellants which is not good in law. 15. It is also submitted that evidence of Jaswantsingh(PW.2) is a hear-say evidence. In respect of statement of Bhanwarlal(PW.9), it is submitted that he gave lift to accused Bhagwansingh and Nirbhaysingh, on his motorcycle and the trial Court has committed an error in seeking corroboration from his evidence and prayed that the impugned judgment be set aside and the appellants be acquitted. 16. On the other hand, Shri C.R. Karnik, learned Govt. Advocate drew our attention to para 2, 4, and 5 of the statement of Bhanwarlal(PW.9) and statement of Bhanwarsingh(P.W.1) and supported their conviction and prayed for dismissal of the appeals. 17. We have heard the arguments of the learned counsel for the parties and have gone through the entire evidence on record. 18. The sole contention of the learned counsel for the appellants is that the evidence of injured eye-witness Bhanwarsingh(PW.1) cannot be relied upon. As per the FIR lodged by Bhanwarsingh(PW.1) at 2.00 p.m. in the afternoon i.e. immediately within two hours from the date of incident, it is alleged that when Bhanwarsingh(PW.1) and his uncle Sardarsingh were going on the motorcycle and reached at Sutada road, culvert of Chandangaon, accused Bhagwansingh, who was armed with 8 lathi(wooden stick) gave lathi blow on the head of Sardarsingh, due to which he fell down, thereafter, Dulesingh, son of Dhulsingh and Nirbhaysingh, caused stone injuries on his head and mouth. When complainant Bhanwarsingh (PW.1) came to save the life of his uncle, accused Bhagwansingh had caused lathi injuries on his hand and legs and the other accused persons Dulesingh, son of Dhulsingh and Nirbhaysingh, who were armed with stones had caused stone injuries to him. As per postmortem report and the Court statement of Dr. S.K. Paliwal(PW.8), all the 7 injuries sustained by the deceased were caused by hard and blunt object. As per FIR, the allegation against accused Bhagwansingh is of causing single blow on the head of the deceased whereas allegation against accused Nirbhaysingh and Dulesingh, son of Dhulsingh is of causing stone injuries. 19. Bhanwarsingh(PW.1) in Para 1 of his Court statement has deposed that when he and his uncle(deceased) reached at Sutada road, culvert of Chandangaon on the motorcycle, at that relevant point of time, Bhagwansingh armed with lathi suddenly came there and caused one lathi blow on the head of Sardarsingh due to which he fell down along with his motorcycle and thereafter, Bhagwansingh inflicted 4 to 5 lathi blows on the head of Sardarsingh and when he tried to rescue his uncle, at that moment, accused Bhagwansingh gave one lathi blow on his right hand, due to which his right hand was got fractured. He has further deposed that Bhagwansingh had caused axe injuries on his head. By causing the said injury, the wooden stick of the axe was broken and thereafter, all the three accused persons started causing stone injuries on the head and mouth of Sardarsingh. This witness in Para 3 of his Court statement has further deposed that stone injuries were caused by the present three accused persons on the head and mouth of Sardarsingh. It is further stated that Dulesingh, son of Dhulsingh had caused stone injuries on his head. This witness further 9 stated that there was an enmity between Bhagwansingh, Nirbhaysingh and deceased Sardarsingh. He in Para 4 of his statement has deposed that accused Nirbhaysingh had to pay Rs.1 lac to deceased Sardarsingh. It is further alleged that before the incident, Sardarsingh had purchased 9-10 Bigha of agricultural land by a registered sale- deed from accused Dulesingh, son of Dhulsingh. The amount of consideration was paid by Sardarsingh, but inspite of that Dulesingh, son of Dhulsingh after execution of registered sale-deed filed a civil suit against Sardarsingh. 20. As per statement of PW1 Bhanwarsingh, the relation between deceased and appellant Bhagwansingh was inimical. A land dispute between them was going on and accused Nirbhaysingh also took Rs.1,00,000/- from deceased. The place of occurrence is culvert of Chandangaon at Sutada. As per statement of PW1 when he and deceased reached the said culvert the appellant who was armed with lathi suddenly gave lathi blow on the head of the deceased due to which, deceased fell down. Thereafter, Bhagwansingh gave lathi blow on the deceased and other co accused persons have inflicted injuries by stone. From the statement of PW.1, it is clear that injury no.1 which was fatal in nature was caused by the appellant Bhagwansingh. That being the factual position, we are of the considered view that the present case cannot be said to be a case falling under Section 302 of IPC. It is trite law that Section 304 part II comes into play when death is caused by doing an act with knowledge that it is likely to cause death, but there is no intention on the part of the accused either to cause death or to cause such bodily injury as is likely to cause death. Accordingly, we convict the appellant – Bhagwansingh under Section 304, Part-II of IPC and sentence him to undergo imprisonment for a period of eleven years. 21. The accused Nirbhaysingh has borrowed money from the deceased which he had not returned. The deceased demanded 10 repayment of the loan he had advanced to the accused Nirbhaysingh. The accused was annoyed by this. From accused Dulesingh son of Dhulsingh, the deceased had purchased some agricultural land. The allegation against the deceased that part consideration was not paid and, therefore, he had filed a suit against the deceased. It appears that the deceased and accused Nirbhaysingh and Dulesingh son of Dhulsingh were in inimical terms. 22. The injured Bhanwarsingh(PW.1) in his police statement(Ex-D/1) as well as in his Court statement very categorically stated that accused Nirbhaysingh and Dulesingh, son of Dhulsingh caused stone injuries to the deceased. In the evidence of Bhanwarsingh(PW.1), it has come on record that accused Nirbhaysingh and Dulesingh son of Dhulsingh caused stone injuries. 23. In respect of accused Nirbhaysingh and Dulesingh, son of Dhulsingh, it is submitted that the allegation against them is that they had caused injuries by pelting stones to the deceased and injured/complainant Bhanwarsingh(PW.1). As per his M.L:C report, at the most a case under Section 326 of the IPC can be made out against them. The allegation agaisnt accused Nirbhaysingh is that he was armed with axe and had caused axe injury on the head of the injured. Looking to the grievousness of the injuries caused by accused Nirbhaysingh and Dulesingh, son of Dhulsingh to the injured Bhanwarsingh(PW.1) and also to the fact that they are in jail for a period of more than 2 years, 3 months and 17 days whereas they have been convicted under Section 326/34 IPC and sentenced to 4 years RI with fine of Rs.500/- and looking to the evidence on record as well as the 11 nature of allegation made by Bhanwarsingh(PW.1) and Bhanwarlal(PW.9) and the factual scenario of the facts of the case, we are of the view that no offence under Section 302/34 of the IPC is made out against these appellants. They can be convicted under Sections 326 and 326/34 of the IPC. Since they are in jail for a period of more than two years, three months, therefore, custodial sentence of 2 years and 3 months would meet the ends of justice. 24. In view of the aforesaid, impugned conviction and sentence of accused appellants for commission of offence under Section 302 read with Section 34 is set aside and they are acquitted of the charges levied against them. They be set at liberty forthwith, if not required in any other case. Their bail bonds and sureties stand discharged. Amount of fine, if deposited, shall be refunded to them. 25. Accordingly, the appeals are allowed. (P.K. Jaiswal) (I.S. Shrivastava) Judge Judge pn/