1 IN THE HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE. DIVISION BENCH:HON'BLE SHRI JUSTICE S.K.SETH AND HON'BLE SHRI JUSTICE M.C.GARG,JJ. CRIMINAL APPEAL NO.597/2005 Kaluram and others Vs. State of Madhya Pradesh _______________________________________________________ Shri Yogesh Purohit, learned counsel for the appellants. Shri Raghuveer Singh, Govt. Advocate for the respondent. J U D G M E N T (Passed on this 12th day of December, 2011) Per: M.C.Garg, J. 1. This appeal filed under Section 374 of Cr.P.C. arises out of the judgment of conviction and order of sentence awarded to the appellants by Additional Sessions Judge, Agar, district Shajapur in Sessions Trail case no.130/2004 (State of M.P. Vs. Kaluram and others) delivered on April 28, 2005 whereby the appellants have been convicted for having committed offence under Section 302/34 of IPC as well as under Section 323/34 of IPC. For offence under Section 302/34 of IPC all the appellants have been sentenced to undergo Rigorous Imprisonment for life besides payment of fine of Rs.1000/- each and in dafault of payment of such fine to further undergo Rigorous Imprisonment for one year. For offence under Section 323/34 of IPC, Rigorous Imprisonment for six months has been awarded to the appellants. 2. According to the appellants, the judgment of conviction and order of sentence is not sustainable for the reason that the judgment delivered by the lower Court is illegal and suffers from infirmity. It has also been alleged that appellants have been wrongly impleaded in the case. Further, it is submitted that the testimony of PW-1 Gyarsibai and that of PW-2 Mangibai does not support the medical evidence. The evidence of PW-2 Mangibai is contrary. PW-4 and PW-5 are hostile witnesses and have also not supported the case of the prosecution. It is also submitted that prosecution has also failed to explain how appellants Kaluram and Sitaram received injuries which have been found on their person by PW-9 Dr.Mithalal Meena. 2 3. On the other hand, learned Government counsel has fully supported the judgment of conviction and the order of sentence. It has been submitted that the testimony of PW-1 Gyarsibai and PW-2 Mangibai fully supports the case of the prosecution. It is also submitted that FIR in this case was lodged promptly and that the injuries found on the person of the deceased are also corroborated by the medical evidence and supports the case of the prosecution that it was the appellants who alone caused injuries upon the person of the deceased one of which i.e. amputation blow caused on the leg of the deceased was found sufficient in the ordinary course of nature to cause his death and thus, there is no infirmity in the judgment. 4. We have heard learned counsel for the parties and have perused the record. 5. The appellants were sent for trial in this case on the basis of Merg intimation recorded by the concerned police officials on June 14, 2004 on the information given by Gyarsibai regarding the incident which took place on the same day at about 10.30 A.M. The Merg intimation details the allegations against the appellants who are relations of the deceased and infact had come to the place of incident in relation of dispute of land and caused injuries upon the person of the deceased Motilal, aged about 35 years with the help of an axe, lathi and Farsi. The injuries resulted in the death of the deceased and on that basis the police recorded crime case no.113/2004 under Section 302/34 of IPC. FIR is Ex.D-2 dated June 14, 2004. As per the particulars of the aforesaid FIR, the incident had taken place at about 10 A.M. on Monday and the FIR had been got recorded on the same day at about 12 Noon. The place of incident is the agricultural field of the deceased Motilal, S/o Prabhulal in village Nishaniya. FIR gives the names of all the three appellants as accused persons in para 7 of the FIR. FIR is based upon statement of Gyarsibai, who happens to be the wife of deceased Motilal and was assisting her husband at the time of cultivation of the farm. Smt. Mangibai is the mother of the deceased who was also present at the relevant time. Both have appeared as witnesses to support the case of the prosecution and have fully supported the version as given in the FIR. To appreciate the allegations made in the FIR, the statement of Gyarsibai as recorded in the FIR is as below:- “EkS X;kjlh ckbZ W/o eksrhyky nkaxh xzke fu'kkfu;k jgrh gWa] [ksrh o ?k: dk;Z djrh gWa A dkyw S/o eksrhyky nkaxh fu0 fu'kkfu;k ls esjs ifjokj dk dkQh fnuks ls [ksrh ds caVokkjs dks ysdj fookn py jgk gS A esjs llqj izHkqyky o dkyw dk [ksrh dks ysdj 6&7 lky igys Hkh >xM+k gqvk Fkk tks izHkqyky tsy 'kktkiqj es ltk dkV jgk gS A vkt 3 lqcg yxHkx 10- 30 cts dh ckr gS eSa] esjk ifr eksrhyky] lkl] ekWaxhckbZ rhuks xks;jk oluh VqdM+h ls mMn eDdk cksus lken ysdj x;s Fks A tks esjk ifr eksrhyky [ksr es lken pyk jgk Fkk vkSj mlds ihNs eSa cht cks jgh Fkh A lkl ekWaxhckbZ cht ysdj cSBh Fkh A eSus o esjs ifr eksrhyky us ,d iyVk fd;k Fkk fd rHkh ogkWa dkyw S/o ekWaxhyky nkaxh vius yM+dks lhrkjke o dSyk'k dks lkFk ysdj ,d er gksdj ogkWA vk x;s A dkyw ds gkFk esa ykBh Fkh] lhrkjke ds gkFk esa dqYgkM+h o dSyk'k ds gkFk esa QlhZ Fkh ] dkyw esjs ifr eksrhyky dks cksyk fd ;s VqdM+h gekjs fgLls dh gS rw mls er cks rks ;bl l;ij esjk ifr eksrhyky cksyk fd ;g VqdM+h esjh gS eS gh cksmaxk] eS gh bls cksrk vk jgk gWawa A blh ckr ij ;s rhuks eq>s o esjs ifr dks feydj xkfy;kWa nsus yxsA esjs ifr eksrhyky us mUgsa xkyh nsus ls euk fd;k rks dkyw us eksrhyky dks tku ls ekj Mkyus dh fu;r ls flj ij ykBh ls 2 okj fd;s rHkh lhrkjke us esjs ifr dks tku ls ekjus dh fu;r ls gkFk esa dqYgkM+h /kkj/ kkj rjQ ls ekjh rks eksrh dk ckWa;k ?kqVus ds uhps dV x;k o dSyk'k us gkFk esa yh QlhZ eksrhyky ds flj esa ekjh] eksrhyky ogha theu ij fxj x;k A eSA o esjh lkl ekaxhckbZ] eksrhyky esjs ifr dks cpkus nkSM+h rks dkyw us eq>s ykBh ls ekjh tks esjs gkFk] iSj] ihB vkfn ij pksV vk;h] esjh lkl ekWaxhckbZ cpkus nkSM+h rks dkyw us ykBh ls ekjk] mlds ck;h Hkqtk o ihB esa pksV vk;h] esjk ifr eksrh ogha ekSds ij fxj x;k vkSj ej x;k A ikl ds [ksr esa xk; dks ikuh fiykus x;k esjk nsoj euksgj Hkh nkSM+dj ekSds ij vk x;k] rks ;s rhuks xkfy;kWA cdrs gq, ogkWa ls Hkkx x;s A lkl ekaxhckbZ dks lkFk ysdj fjiksVZ dks vk;h gWaw A esjs ifr dh yk'k [ksr esa iM+h gS A 6. In short the allegations are that Kaluram alongwith his two sons Sitaram and Kailash at about 10.30 A.M came at the agricultural field of the deceased Motilal. At that time, besides Gyarsibai, her mother-in-law Mangibai was also present. The incident had taken place in the background that a dispute with respect to partition of the agricultural field was going on between the family of Motilal on the one hand and Kaluram on the other hand. They had been quarrelling about the aforesaid dispute and infact 6-7 years because of the said dispute, Prabhulal, father of the deceased was confined to jail in Shajapur. Further allegations are that when Motilal was ploughing the field and Gyarsibai was assisting him, Kaluram along with his sons Sitaram and Kailash came to the spot. Kaluram was having a lathi, Sitaram was having an axe, while Kailash was having a Farsi. They called upon Motilal not to to cultivate the land on which he was cultivating alleging that the said portion belong to Kaluram and their family. They also started abusing Motilal. When they were abusing Motilal, Kaluram threatened Motilal to kill him. Thereafter, with an intention to kill him, Kaluram gave two blows of lathi on the head of the deceased Motilal, while Sitaram amputed his leg below the knees. Kailash having Farsi in his hand also caused injury on the head of the deceased after he fell on the ground. When Gyarsibai and Mangibai ran after them to save Motilal, Kaluram also gave blow to them. They also received injuries on the hand, foot etc. Mangibai also received injuries on her person. Motilal died on the spot. At that time the younger brother of 4 the deceased Motilal (dewar of Gyarsibai) also came on the spot. Thereafter, Gyarsibai and Mangibai when to the police station for lodging the report, while the dead body of the deceased was lying at the place of incident. On that basis, FIR was registered. 7. The prosecution to support their case examined as many as eleven witnesses including two eye witnesses Gyarsibai Mangibai. Other witnesses are Manohar, younger brother of Motilal, Barmal, Lalsingh, Badrilal, Gokul, Shivnath Singh, Dr.Mithalal Meena, who conducted the postmortem Kanhaiyalal, Arun Kumar Singh. No witness was examined by the appellants in the defence. After conclusion of the trail judgment was delivered by the learned Additional Sessions Judge, Agar on April 28, 2005. Order of sentence was passed as stated above. It is against the aforesaid judgment that the appellants have come before this Court. 8. It may be observed here that the Investigation Officer to whom the investigation was entrusted to conduct the investigation of the case, arrested the accursed persons and finally filed the challan against all of them under Section 302/34 of IPC. During the course of investigation, also took in possession blood earth sample of the soil, broken bangles of the complainant. The recovery of these articles has been supported by PW-7 and PW-11, the investigating officer. There is no cross examination on this point. PW-11 also interrogated the accused persons and prepared the memorandum on the basis of disclosures made by the accused regarding lathi vide memorandum Ex.P-20, one blood stained Dhoti and one blood stained Lathi was also recovered vide Ex.P-23. Appellant Sitaram made disclosures about the axe vide Ex.P-21 and in presence of the witnesses he also produced one pant and the axe which was taken into possession vide Ex.P-24. Farsi was also recovered from Kailash in accordance with the memorandum Ex.P-22. The seizure memo is Ex.P-25. The recovery of these articles is supported by PW-11 and PW-10. The Investigating Officer also sent various sealed articles to the FSL after initially depositing that in the Thana Soyat. The report of the FSL has been received and relied upon by the prosecution which is Ex.P-30. As per the said report, the blood stained earth, clothes of the deceased, Dhoti of Kaluram, axe recovered from the appellant Sitaram, pant and Farsi as recovered from Kailash was having human blood stain. 9. At the outset it may be observed that as per Dr. Mithalal Meena, who appeared as PW-9, conducted the postmortem on the dead body of the deceased on June 14, 2004 at about 2.55PM. According to the doctor all the injuries were 5 ante-mortem and must have been caused within 16 hours since the postmortem was conducted. The external examination of the body reveals the following injuries:- (1) dVk gqvk ?kko] ftldk yackbZ 8 bap ] pkSM+kbZ <kbZ bap] xgjkbZ 5 bap tks ckWa, iSj ds Åijh 1@3 fgLls esa ?kqVus ds uhps ekStwn Fkh A dVk gqvk Hkkx ihNs ,oa nksuks rjQ 2@3 fgLlk dVk Fkk ,oa lkeus e/; dh vksj 1@3 fgLlk peM+h ls tqM+k gqvk Fkk A Vhfc;k gMMh iwjh rjg dV xbZ FkhA rFkk fQcqyk gMMh dk 2 bap×2 bap dk fgLlk dV x;k Fkk o gMMh ls vyx gks x;k Fkk blh pksV esa cka;h tka?k dh fQej gMMh dk fiNyk fgLlk 2×2×1 bap dV dj vyx gks x;k Fk lHkh elYl] uoZl o oslYl dV xbZ Fkh flQA e/; Hkkx o vkxs dh Ropk cph Fkh A ;g pksV /kkj/kkj ,oa DyhudV fdukjs fy;s Fkh A [ksu vk jgk Fkk A rFkk ;g pksV l[r /kkj/kkj gfFk;kj ls igqWapk;h xbZ Fkh] tks e`R;q iwoZ dh Fkh A ¼2½ QVk gqvk ?kko 1 bap vk/kk bap× vk/kk bap nkfgus iSj esa mijh 1@3 fgLls esa ekStwn Fkh] tks fdlh l[r cksFksjs gfFk;kj ls igqWapkbZ xbZ FkhA A ¼3½ QVk gqvk ?kko ftldk vkdkj <kbZ bap× MsM bap×,d bap Fkk] tks flj esa nkfgus ihNs dh vksj fLFkr Fkk] tks pksV v)ZpUnªkdkj Fkh tks pksV flj ds ihNs mij dh vksj ls vkxs uhps dh vksj fLFkr Fkh A pksV ds fdukjksa esa [kwu yxk Fkk A ;g pksV l[r cksFkjs gfFk;kj }kjk igqWapk;h xbZ Fkh A bl pksV ds vkarfjd ijh{k.k esa ,DLVªk M;wjk ,fj;k esa [kwu tek Fkk] fdUrq ml txg esa dksbZ QzsSpj ugha Fkk A ¼4½ QVk gqvk ?kko 2 bap× 1 bap×1 bap flj esa ckWa, ihNs dh vksj frjNh fLFfr esa Fkk] tks ihNs mij dh vksj vkxs uhps dh vksj Fkk] fdukjksa esa [kwu yxk Fkk A ;g pksaV l[r cksFkjs gfFk;kj ls igqWpk;h xbZ Fkh] ftl pksV esa ,DLVªk M;wjy gsejst ekStwn FkkA pksV ds vkarfjd ijh{k.k esa dksbZ QzsDpj ugha Fkk A fnekx LoLFk ,oa lkekU; Fkk A 10. In the postmortem report, Dr. Mithalal Meena has also mentioned about the internal injury found on the body. 11. In the postmortem report, the doctor has given his opinion regarding the cause of death as under:- “In my opinion regarding the cause of death of Motilal S/o Prabulal age 40 years cast dangi, R/o Neshaniya is due to the Cardio respiratory arrest due to severe hemorrhagic shock due to the large incised wound on the upper 1/3 of the left foot leg at the lower left knee joint death within 16 hours duration at the time of the postmortem.” 12. Thus, it is apparent that death of the deceased occurred on account of infliction of large incised wound on the upper 1/3 of the left foot leg at the lower point knee joint which as per the statement of doctor Meena in his deposition who appeared as PW-9 the death of the deceased was caused on account of excess blood oozing out of the body of the deceased due to cut injury in his left leg. 6 13. The trial Court has taken note of the testimony of the doctor and has virtually quoted the entire opinion of the doctor in the judgment. It would be appropriate to reproduce the paragraph 17 & 18 of the judgment which reads as under :- 17- Mk- ehBkyky eh.kk ih- MCY;w&9 }kjk vius dFku esa crk;k fd muds }kjk fd;s x, 'ko ijh{k.k vuqlkj vfHker fn;k Fkk fd e`rd dh e`R;q g`n; ,oa lkal xfr :dus ds dkj.k gqbZ Fkh] tks T;knk [kwu cgus ls mRiUu 'kkd dk ifj.kke Fkh A rFkk T;knk [kwu cgus dk dkj.k iSj esa yxh pksV Fkh A e`rd dh e`R;q ijh{k.k ls 16 ?kaVs ds vanj dh Fkh rFkk bl laca/k esa 'koijh{k.k fjiksVZ iz- ih- 10&, ,oa pksVksa dks n'kkZus okyk vfrfjDr i`"B iz- ih+-&10 ch izekf.kr fd;k gS A 18- Mk- eh.kk ih- MCY;w&9 us vius izfrijh{k.k esa crk;k fd eksrhyky dks ckWa, iSj dh pksV ls vR;f/kd [kwu cgk Fkk vkSj blh dkj.k eksrhyky dh e`R;q gqbZ Fkh A iSj 'kjhj dk ekfeZd vax ugha gS] fdUrq pksV dh uoZl ,oa oslYl dV xbZ Fkh A rFkk eksrhyky ds flj dh pksV lk/kkj.k Fkh A MkDVj ds dFkuksa ls ;g Li"V gS fd eksrhyky ds cka, iSj esa tks dVk gqvk ?kko Fkk mlesa uoZl ,oa oslYl dV xbZ Fkha vkSj vR;f/kd [kwu cgus ls mRiUu 'kkd ls g`n; ,oa Lokal xfr :dus ls e`R;q dkfjr gqbZ Fkh A rFkk e`rd dks cka, iSj dh pksV ds vykok vU; pksVsa Hkh Fkh A MkDVjh lk{; ls e`R;q ijh{k.k ls 16 ?kaVs ds vanj gqbZ Fkh A eksrhyky dk ijh{k.k fn0 14@6@04 ds 2-55 cts fnu fd;k x;k gS rFkk ?kVuk fn0 14@6@04 ds 10-30 cts fnu dh gS] tks vof/k MkDVj }kjk crk;h xbZ vof/k ds vanj gS A rFkk MkDVjh lk{; ls e`R;q migfr dkfjr gksus ls gqbZ Fkh] tks ekuoo/k izd`fr dh Fkh A 14. The opinion explains that even though foot is not a vital part of the body, but the death took place on account of excessive blood which came out of the aforesaid injury which is the cause of death. It may be observed here that the doctor has also proved the injuries on the person of Gyarsibai and Mangibai which again supports their version. Gyarsibai and Mangibai have fully supported the FIR. Gyarsibai has reiterated all that she stated in the FIR. Same is the deposition of the Mangibai. The testimony of Gyarsibai is in line with her statement which is the basis of registration of the FIR. 15. What is interesting to note is that in the cross examination conducted by the respondent no suggestion has been given by the respondents that they have not caused injuries to the person of the deceased or that they were not present at the spot. Rather the cross examination of the PW-1 Gyarsibai suggest the presence of Kaluram and Sitaram as also Kailash at the spot. Some portion of the cross examination shows that even the appellants were not disputing their presence. In para 10 of the cross-examination conducted on behalf of the appellants by Shri Dalpat Singh Chouhan, learned counsel, a suggestion has been given: - “;g dguk xyr gS fd vkjksih dkyw us ekSds ij vkdj ifr ls dgk Fkk fd ;g VqdMh esjs fgLls dh gS rqe er cksvks A iqfyl us eq>ls iwNrkN dh Fkh A eSus iqfyl dks 7 vius c;ku i0Mh0&1 esa ,slk ughsa crk;k Fkk fd dkyw us esjs ifr eksrhyky dks cksyk fd ;g VqdMh esajs fgLls esa gS rqe bls er cksvks A Para 12 of the cross-examination conducted on PW-1 by the learned counsel appearing for the appellants, which reads: - “;g dguk xyr gS fd tc vkjksih dkyw esjs ifr dks lkeu pykus ls jksdus vk;k Fkk rc esjs ifr us ijkus ls dkyw dks ,d okj flj] o nks okj Nkrh esa ekjs Fks A ;g dguk xyr gS fd lhrkjke us jksdk Fkk rks esjs ifr us ijkus ls flrkjke dks Hkh flj esa ekjk Fkk A eSus o esjh lkl us chp cpko fd;k Fkk ysfdu chp cpko esa iRFkj ugha ekjs eS o esjh lkl dksbZ gfFk;kj ykBh ugha fy;s gq, Fkh A ekSds ij vkjksih dkyw o lhrkjke dks dksbZ pksaVs ugha vkbZ Fkh A” The aforesaid cross-examination proves that at least the appellants were present at the spot and had participated in the crime. It also explains what kind of injuries were inflicted upon which might have been inflicted by the appellants. It also explains that no injury was caused by the accused persons or their associates. Further portion of the cross-examination, as per paragraph 12 of this witness, which also proves the presence of appellant Kailash at the spot, is also reproduced hereunder: - “,slk ugha gqvk fd vkjksih dSyk’k us ekrhyky tc [kMk Fkk rc QlhZ flj esa ekjh Fkh A Lor% dgk fd tc eksrhyky fxj x;k Fkk rc QlhZ ekjh Fkh A” 16. Same is the position with respect to the cross examination of Mangibai, who has fully supported the version of PW-1 Gyarsibai in as much as in her cross examination suggestions have been given that Kaluram and Sitaram suffered injuries at the time of incident having been beaten from the side of the deceased. At this juncture, it would be appropriate to take note of the statement of PW-8 Shivnath who has also supported the version of PW-1 Gyarsibai and PW-2 Mangibai. He deposed about the accused persons having caused injuries on the person of the deceased with the help of lathi, Farsi and axe. Moreover, the testimony of PW-1 and PW-2 has also supported that appellants articles recovered from the spot at the instance of the accused persons such as clothes which the accused persons were wearing Farsi, axe and lathi as also the report of the FSL which shows that the blood found on these articles was human blood. No explanation has come on record as to how the human blood was found on the 8 clothes of the accused persons and on the axe which is the weapon used for causing fatal injury to the deceased as per statement of PW-1 and PW-2. 17. Moreover, in view of the consistent statement of the witnesses who had reasons to be present at the time of the incident at the spot but had informed the police about the incident verbetum, there is no reason to disbelieve their testimony since even the medical evidence which have come on record supports their version. As regard the allegations of the appellants that injuries on their person has not been explained, the appellants have even admitted their presence on the spot. Possibility of injuries on their person which have been found simple in nature. 18. The only submission made on behalf of the appellants in the alternative is that injuries caused on the leg of the deceased with an axe cannot be considered as intention to cause such injuries to the deceased which is likely to cause his death in the ordinary course and therefore, it is not a case under section 302 IPC and for that reason conviction of Sitaram should be converted to an offence under Section 304 of IPC . As regard the two other accused persons is concerned it is submitted that injury caused by them is simple and therefore, they can be convicted under Section 323 of IPC at the most. However, the aforesaid submission made by the learned counsel for the appellants is without any merit. 19. The person who caused a blow on the leg of a person which ultimately removes the portion of the leg and becomes reason for excessive flow of the blood, cannot say that such an injury was not caused without any intention to kill the person. Section 299 of IPC reads as under:- “299. Culpable homicide.- Whoever, causes death by doing an act with the intention of causing death, or with the intention of causing such bodily injury as is likely to cause death, or with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.” 20. The causing of injury on the leg of the deceased certainly come within the definition of an act which the appellants caused with an intention of causing death. The injury caused upon the person of the deceased though was not made on the vital part of the body of the deceased but the way the injury was caused and the effect thereof establishes that such an injury was caused with full knowledge of the appellant that even may cause a situation where the entire blood of the deceased 9 may come out of the body which is sufficient in the ordinary course to cause his death. This is what which has been opined by the doctor. Coming to the role of the two other accused appellants, they had gone to the field alongwith their father armed with Lathi, and Kaluram who also had an axe and Farsi caused injuries to the deceased and the persons who had come to help the deceased. As such, their role is that of an associate who had common intention to cause death of the deceased. It is for that reason after the blow, they did not flew away from the place of incident, but also caused injuries to Mangibai and Gyarsibai. 21. The trial Court has considered all these aspects in the impugned judgment. Infact the investigation conducted by the appellants after registration of the FIR has also resulted in seizure of the clothes of the