1 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR DIVISION BENCH Criminal Appeal No.244/1994 1. Bharat Singh, son of Pannalal, aged 23 years, occupation- Cycle repair shop. 2. Babulal son of Pannalal, aged 40 years, occupation service, Helper, PHE Department. Both residents of Guljari Ka Bagicha, Near Sanjay Talkies, Sehore (M.P.). versus State of Madhya Pradesh ----------------------------------------------------------------------------------------- For the appellants: Shri Siddharth Datt, advocate For the Resp./State: Shri Umesh Pandey, Government Advocate. ----------------------------------------------------------------------------------------- ----------------------------------------------------------------------------------------- PRESENT: HONOURABLE SHRI JUSTICE RAKESH SAKSENA HONOURABLE SHRI JUSTICE M.A. SIDDIQUI ----------------------------------------------------------------------------------------- Date of hearing: 17.11.2011 Date of Judgment 30.11.2011 J U D G M E N T Per: Rakesh Saksena,J Appellants have filed this appeal against the judgment dated 14.12.1993 passed by II Additional Sessions Judge, Sehore, in Sessions Trial No.98/1990, convicting appellant No.1 Bharat Singh under Section 302 of the Indian Penal Code and appellant No.2 Babulal under Section 302/34 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs.1000/- each. In default of payment of fine, further 2 rigorous imprisonment for six months. 2. The prosecution case in nutshell is that on 7.1.1990, at about 8.45 in the night, Hari Om (deceased) and Kishorilal went to eat eggs at the shop of Kallu. Accused Bharat Singh was also present there. For some reason, an altercation ensued between them. When Hari Om was going back to his house, Bharat Singh and Babulal came armed with Gupti and Ballam. Acquitted accused Ramesh and Pannalal also reached there. Ramesh had a Lathi in his hand. On way, in front of the shop of Narayan, accused Babulal caught Hari Om from the back side and Bharat Singh dealt 3-4 blows of Gupti in his abdomen. Babulal and Ramesh also assaulted him and Pannalal exhorted them to kill him. On hearing noise, Rajendra Kumar (PW-1), brother of Hari Om and Kaluram (PW-4), his father also reached there and saw occurrence. Kallu, Kishorilal, Ram Singh and some other persons were also present there. After assaulting Hari Om, accused persons ran away. 3. Rajendra Kumar (PW-1) rushed to Police Kotwali, Sehore and lodged the first information report (Ex.P/1) at 9.00 pm. A case under Section 307/34 of the Indian Penal Code was registered against four accused persons. Station Officer, R.S. Chudawat (PW-15) rushed to spot and carried Hari Om to District Hospital, Sehore, however, Hari Om succumbed to his injuries. The case then converted under Section 302/34 of the Indian Penal Code. 4. Dr. Laxmi Narayan Namdeo (PW-16) conducted postmortem examination of the body of deceased and vide his report Ex.P/26 found six incised wounds on his body. In his opinion, injuries found on the 3 body of deceased were sufficient in ordinary course of nature to cause his death. On the same day, during investigation, statements of prosecution witnesses were recorded and accused were arrested. On the information given by accused Bharat Singh, a Gupti was seized from the bushes near Sindhi Dharamshala. Similarly, on the information of accused Babulal a Ballam was seized. Seized weapons were sent to Forensic Science Laboratory for examination and its report Ex.P/24 was obtained. 5. Accused Bharat Singh had also lodged a report on the same day i.e. on 7.1.1990 at Police Kotwali, Sehore, at 22.00 Hrs, which was recorded in Rojnamcha Sanha No.594/7.1.1990 by Head Constable Shiv Gopal (DW-2). Accused Bharat and Babulal were sent for medical examination and their MLC reports (Ex.D/3 & D/4) were received. On the basis of aforesaid Rojnamcha report, Crime No.15/1990 under Section 324 of the Indian Penal Code was registered. However, due to lack of evidence, final report was submitted. 6. After completion of the investigation, charge sheet was filed and the case was committed to the court of sessions for trial. 7. During trial, accused persons abjured their guilt and pleaded false implication. In their statements, recorded under Section 313 Cr.P.C., they merely pleaded false implication without putting forth any particular defence version. They however examined Dr.A.B. Niyazi (DW-1), Head Constable Shiv Gupta (DW-2) and Station Officer R.S. Chudawat (DW-3). 8. To substantiate its case, prosecution examined 16 witnesses. 9. Learned trial judge, relying mainly on the evidence of eyewitnesses 4 viz. complainant Rajendra Kumar (PW-1) and Kaluram (PW-4) and finding their evidence corroborated by the evidence of Durga Prasad (PW-2), Kishorilal (PW-3), Satpal (PW-9), Hitesh (PW-10) and Dr. Laxmi Narayan Namdeo (PW-16) held the appellants/accused guilty and convicted and sentenced them, as mentioned above. However, finding the evidence not sufficient against accused Ramesh, acquitted him. Since accused Pannalal had died during pendency of the trial, case against him stood abated. Aggrieved by the impugned judgment of conviction, appellants have preferred this appeal. 10. Shri Siddharth Datt, learned counsel for the appellants, submitted that the evidence of eyewitnesses was not reliable. Rajendra Kumar (PW-1) and Kaluram (PW-4), respectively, were the brother and father of the deceased. They being close relations of the deceased, their evidence was not reliable. Independent eyewitnesses did not support the prosecution case and did not explain the injuries found on the persons of accused. He submitted that since the incident occurred suddenly upon a sudden quarrel, the conviction of appellants under Section 302 of the Indian Penal Code was not justified. At worst, they could have held liable under Section 304-I or 304-II of the Indian Penal Code. On the other hand, Shri Umesh Pandey, learned Government Advocate, submitted that the evidence of Rajendra Kumar and Kaluram was reliable. It stood corroborated from the evidence of other eyewitnesses, though declared hostile for not supporting the prosecution case wholly. He justified and supported the finding of conviction recorded by the trial Court. 5 11. We have heard learned counsel for the parties at length and perused the impugned judgment and record carefully. 12. It has not been disputed that deceased met with a homicidal death. It has been clearly stated by Rajendra Kumar (PW-1) and Kaluram (PW-4) that deceased was assaulted by accused persons by Gupti and Ballam and he died due to injuries received by him. Investigating Officer, R.S. Chudawat (PW-15) conducted the inquest proceedings and carried deceased to hospital, where he died. The postmortem examination of the body of deceased was conducted by Dr. Laxmi Narayan Namdeo (PW-16), who, vide his report Ex.P/26 found following injuries on his body:- “1. One oblique incised wound on the abdomen right side, at the level of umbilicus, size 3½ cm x 1 cm, omentum coming out from the wound. 2. One oblique incised wound on chest 3½ cm x 1 cm, just left from the sternal border at the level between 5th and 6th ribs. Depth of wound was very deep, about 8 cm and profuse blood was coming out from the wound on pressing chest or changing the position of body. 3. Incised wound 2 x 1/2 x cm superficial on left shoulder. 4. One incised wound on the thumb of left hand 2½ cm x 1 cm. 5. One incised wound on head of left temporal region muscle deep, size 5 cm x 1 cm. 6. One incised wound, size 1 cm x 1/2 cm at the level of iliac crest right side. Due to injury No.2, which had pierced the left lung and cavity of right ventricle, sudden severe haemorrhage and shock was produced, which was responsible for the death. All the injuries were ante- mortem in nature. Injury No.2 was sufficient in ordinary course of nature to cause death of deceased.” From the above evidence, it is amply established that the deceased died of a homicidal death. 13. Rajendra Kumar (PW-1) and Kaluram (PW-4) respectively were, 6 the brother and father of deceased. Learned counsel for the appellant submitted that their evidence was not reliable because they were close relatives of deceased and were interested in the conviction of accused. It is well settled that the testimony of eyewitnesses cannot be ignored merely because they are either partisan witnesses or close relatives of the deceased. There is no rule of law that the evidence of partisan witnesses cannot be accepted. The fact that the witnesses are associated with the deceased by itself do not render their evidence false. It is common knowledge that neutral witnesses are reluctant to come forward to give testimony to support one or the other side. Therefore, merely because the eyewitnesses are associated with one side, their evidence cannot be discarded. However, it should be subjected to a careful scrutiny and accepted with caution (State of U.P. V. Ram Swarup and others AIR 1988 SC 1028). 14. Rajendra Kumar (PW-1) deposed that while he was standing in the verandah of his house, he heard some noise of quarrel at the egg shop of Kallu. Out of curiosity, when he went out of the house and tried to know about the quarrel, he saw that an altercation was going on between bis brother (deceased) and accused. All the accused then went to their house, which was situated about 10-15 ft. from the shop of Kallu and came back armed with weapons. Accused Bharat had Gupti, Babu had Ballam, Ramesh had Lathi and Pannalal had an iron rod. When deceased tried to run away, in front of the shop of Narayan, accused Babu held him from the back side and accused Bharat dealt blows with Gupti on his abdomen and hand. Accused Babu then left deceased and 7 assaulted him by his Ballam. He shouted and rushed to the spot. In the meantime, his parents also reached there. Accused then ran away from the spot. Deceased fell down on the spot and became unconscious. He rushed to police station and lodged the report (Ex.P/1). This witness was subjected to a gruelling cross-examination, but he stood firm. Learned counsel for the appellants drew our attention to some omissions in his statement, but, we find them not of substantial nature. It was not mentioned by this witness in the FIR (Ex.P/1) that accused went to their house and came back at the spot armed with weapons. He however, explained that at the time of lodging report he was disturbed and was not in fit mental condition due to serious condition of his brother. Therefore, this fact could not be mentioned in the FIR. It is important to note that incident had occurred at 8.45 pm and the first information report was lodged at 9.00 pm i.e. within 15 minutes of the occurrence. The omissions about the fact that this witness shouted, hearing which, his parents came on the spot or the fact that accused Bharat dealt a blow with Gupti on the hand of his brother, in our opinion, do not appear of material nature. The facts that accused Bharat was armed with a Gupti, Babu was armed with a Ballam and that Babu caught hold of deceased and Bharat dealt blows with Gupti in the abdomen of deceased, as stated by witness in the court, were clearly mentioned by this witness in the first information report. Therefore, his evidence finds sufficient corroboration from the first information report (Ex.P/1), which was lodged by him within 15 minutes of the incident. The evidence of Rajendra Kumar (PW-1) finds support from the evidence of Kaluram 8 (PW-4), who categorically stated that hearing the cries of Hari Om (deceased) and Rajendra Kumar, when he came out of his house, he saw the occurrence. The house of Narayan, in front of which the incident occurred, was about 25-30 ft. away from his house. He saw accused Bharat assaulting Hari Om with Gupti. Accused Babu caught Hari Om from the back side. After causing injuries to Hari Om, accused persons ran away. In cross-examination, this witness was confronted with his police statement (Ex.D/2) wherein he did not disclose that he heard cries of deceased and Rajendra Kumar, but, in our opinion, merely on the basis of such omission, the evidence of this witness cannot be discarded especially because it was not disputed that the assault on deceased was made in front of the house of Narayan, which was about 25-30 paces away from the house of this witness. 15. It is true that other eyewitnesses viz. Durga Prasad (PW-2), Kishorilal (PW-3), Satpal (PW-9) and Hitesh (PW-10) were declared hostile, as they did not support the prosecution case fully, but, on perusal of their evidence, it is revealed that they substantially corroborated the evidence of Rajendra Kumar (PW-1) and Kaluram (PW-4). Durga Prasad (PW-2) deposed that he saw altercation between deceased and accused Bharat at the hand-cart of Kallu. Bharat went to his house and brought Gupti, but thereafter this witness stated that he went to his house and did not see the incident. Kishorilal (PW-3) deposed that he and Hari Om had gone at the egg shop of Kallu. Accused Bharat was also present there. There had been an altercation between Hari Om and Bharat. He stated that he left the place, but, from 9 a distance about 10 paces, he saw Bharat and Babu bringing something like sticks, but he did not see the Maar-Peet. Satpal (PW-9) stated that when he and Hitesh were going to see movie, they saw an altercation between accused Bharat and Hari Om at the egg shop of Kallu. Thereafter, Bharat went to his house and came back with a Gupti. When Hari Om tried to run away, Ramesh caught him and Bharat dealt 3-4 blows with Gupti on his abdomen. Hari Om fell down. Since this witness did not name accused Babu and Pannalal, he was declared hostile. Similarly, Hitesh (PW-10) stated that he saw an altercation and scuffle between Hari Om and accused Barat at the shop of Kallu. Bharat had a Gupti and Babu had a Ballam. According to him, he did not see the complete incident and went towards Sanjay Talkies. Thus, these witnesses though did not give the complete account of the incident, but they substantially supported the evidence of Rajendra Kumar (PW-1) and Kaluram (PW-4). 16. After a close and careful scrutiny of the evidence of Rajendra Kumar (PW-1) and Kaluram (PW-4), we find their testimony reliable. Their evidence finds further support from the evidence of Dr. Laxmi Narayan (PW-16), who, on postmortem examination of the body of deceased, found six incised injuries on his body. In our opinion, it was clearly established that accused Babulal caught hold of deceased with a view to facilitate accused Bharat to assault him with Gupti, and accused Bharat inflicted injuries with Gupti on the abdomen and other parts of the body of deceased, as a result of which he died. 17. Learned counsel for the appellant next submitted that since the 10 prosecution witnesses did not explain the injuries found on the person of deceased, the genesis of occurrence was doubtful and that since a sudden quarrel ensued between deceased and accused Bharat and accused persons also suffered injuries, though minor in nature, it could not be held that accused intended to commit murder of the deceased. At the most, they could be held liable of the offence under Section 304-I or 304-II of the Indian Penal Code. 18. Learned counsel for the State submitted that the accused persons did not advance any specific plea either in their statements under Section 313 Cr.P.C. or by way of suggestion to eyewitnesses of the occurrence that deceased or any of the prosecution witness caused injuries to them. 19. No doubt that accused persons did not suggest to any of the prosecution witnesses that deceased initiated the quarrel or assaulted accused persons, but it is revealed from the evidence of Head Constable Shiv Gopal (DW-2) that on 7.1.1990 i.e. on the day of occurrence at about 8.55 pm accused Bharat Singh, Pannalal and Babulal appeared at the police station and lodged a report, which was recorded in Rojnamcha Sanha No.594. The said report was Ex.D/5. On the basis of that report, an offence u/s 324 of the Indian Penal Code was registered. Similar statement was given by Station Officer of Kotwali, district Sehore viz. R.S.Chudawat (DW-3), who was also examined as Investigating Officer of the case as PW-15. He stated that he had registered Crime No.15/1990 under Section 324 of the Indian Penal Code on the report lodged by accused Bharat Singh. This crime was registered on the basis of Rojnamcha Sanha No.594 recorded on 7.1.1990 at 8.55 pm. The first 11 information report registered by him was Ex.D/7. He stated that he obtained MLC reports (Ex.D/8 & D/9) in respect of the injuries of accused Bharat Singh and Babulal. According to him, a final report in respect of this crime was filed because Hari Om, against whom the crime was registered, had died. Dr.A.B.Niyazi (DW-1) proved the injuries of accused Bharat Singh and Babulal. He deposed that on examination of the person of Bharat Singh, he found following injuries on his body: “1. Abrasion 4½” in length on right thigh. 2. Contusion on the left thigh 2” in diameter. Injury No.1 was caused by hard and pointed weapon and injury No.2 was caused by some hard and blunt weapon. Both the injuries were simple in nature.” Dr. Niyazi found following injury on the body of accused Babulal: “1. Incised wound 1¼” x 1/ 4”x 1/4” on left palm. Injury was simple in nature and was caused by hard and sharp weapon. ” The aforesaid injuries were recorded by Dr. Niyazi in Medico Legal Register. Copies of the reports were proved as Ex.D/3 and Ex.D/4. 20. From the evidence of all the eyewitnesses examined by the prosecution, it is apparent that the incident, which culminated in the assault by accused persons on deceased, erupted from a sudden altercation or a quarrel. Neither prosecution witnesses disclosed the cause on which the altercation started nor accused persons disclosed the genesis of the occurrence in their statements under Section 313 Cr.P.C., yet something can be gathered from the Rojnamcha report (Ex.D/5) and the first information report (Ex.D/7) lodged by accused Bharat at about 12 10.00 pm on the same day. The narration given by accused Bharat in the report was that at about 8.30 pm when he and his cousin were eating eggs at the shop of Kallu, deceased reached their and asked to give eggs to him. When he told that he had come first and Kallu was preparing eggs for him, deceased suddenly abused him. When he objected to it, he brought a knife from his tea shop and assaulted with it on his thigh. When his elder brother Babu came there to intervene, deceased caused injury to him also. In the meanwhile, his brother Ramesh and father Pannalal also reached there. He admitted in the said report that he also beat deceased. This report might not be wholly true, yet it gives some indications about the genesis of the occurrence. It can be safely inferred that the incident occurred on the spur of the moment, when accused Bharat and deceased wanted to have eggs first. There is absolutely nothing on record to indicate that there had been any past enmity or bad-blood between them. 21. No doubt, the prosecution case is that accused Bharat, in the course of quarrel, rushed to his house and brought Gupti for assaulting deceased, but it has come in evidence that the houses of both the parties were not away from the place of occurrence. The incident of assault took place just in continuation of the quarrel and not after a long gap, which could have provided opportunity to accused to give up their heat of passion. In our opinion, in these circumstances, the case of accused/appellants would squarely fall within the ambit of Exception 4 of Section 300 of the Indian Penal Code, but, since accused Bharat wielded deadly weapon like Gupti and caused as many as six injuries out of 13 which Injury No.2, which cut the lung and heart of the deceased, was sufficient in ordinary course of nature to cause his death, it has to be held that accused intended to cause death or to cause such bodily injury as was likely to cause death of deceased. As such, they would be liable to be punished under Section 304-I of the Indian Penal Code. 22. Accordingly, the conviction of appellants under Section 302 and 302/34 of the Indian Penal Code and sentence of imprisonment for life awarded to them is modified to under Section 304-I and 304-I/34 of the Indian Penal Code, respectively, and their sentences are reduced to rigorous imprisonment for 10 years, especially in view of the fact that at the time of occurrence appellant Bharat was a young boy of about 18 years and that both the appellants have already remained in jail from 7.1.1990 to 28.8.2000. Sentences of fine are affirmed. 23. Appeal partly allowed. (Rakesh Saksena) (M.A. Siddiqui) Judge Judge Shukla 14 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR DIVISION BENCH Criminal Appeal No.244/1994 Bharat Singh & Anr. versus State of Madhya Pradesh J U D G M E N T For consideration (Rakesh Saksena) JUDGE __/11/2011 Hon'ble Shri Justice M.A. Siddiqui JUDGE __/11/2011 POST FOR: __/11/2011 (Rakesh Saksena) Judge __/11/2011