---1--- HIGH COURT OF MADHYA PRADESH BENCH : INDORE (Division Bench: P.K. Jaiswal & I.S. Shrivastava, JJ.) Criminal Appeal No. 491/2001 Bhaysingh @ Baisingh S/o Kalu Bhil V/s State of Madhya Pradesh ************************************************************************* Smt. Sharmila Sharma, Advocate for the appellant. Shri Deepak Rawal, Govt. Advocate for the respondent. ************************************************************************* J U D G M E N T (07.9.2011) Per P.K. Jaiswal, J. This appeal is directed against the judgment & order of conviction passed by the First Additional Sessions Judge, Mhow, district Indore in Sessions Trial No.811/2001. By the impugned judgment appellant Bhaysingh @ Baisingh was found guilty of the charge under Section 302 of IPC for causing murder of Dhakriya. He was convicted thereunder accordingly and sentenced to undergo life imprisonment with fine of Rs.2,000/- and in default whereof to further undergo one year's simple imprisonment. 2. Brief facts of the case are as under :- (a) On 31.10.2000, in the night Bhuribai (PW5) was sleeping near to his brother Dhakriya in one Tapra (hut), which is near to the well of the agricultural field of one Shivnarain. Kamma @ Kamabai (PW6) was also sleeping with them. At about 10.00 PM, on hearing the shriek of her brother Dhakriya, Bhuribai (PW5) got up and saw that appellant who was armed with 'Baka' was inflicting 'Baka' injuries on her brother Dhakriya on his neck, face and hand. She immediately shouted and asked for help. Hearing her cries Kamma also got up. On hearing the cries of Bhuribai (PW5) her mother Sukmabai (PW4) and brother Gamariya came at the place of occurrence. Number of other villagers and other ---2--- persons also came on the spot and they found him dead. (b) After inflicting injuries to the deceased the appellant escaped from the place of occurrence. The matter was reported by Bhuribai (PW5) at Police Station Kishanganj on the same day i.e., 31.10.2000 at 23.00 (11.00 PM). On the basis of intimation given by Bhuribai (PW5) Murg No.36/2000 was registered. On the same day Bhuribai (PW5), the sister of the deceased gave a report to the Station House Officer (PW7), Police Station Mhow, who in turn registered the same as Crime No.380/2000, against the appellant under Section 302 of IPC. (c) During course of investigation, Investigating Officer A.K. Shrivastava (PW7) conducted inquest (Ex.P/10) on the dead body of deceased Dhakariya in presence of witnesses and also seized blood staind clothes of the deceased vide (Ex.P/12). He sent the dead body of the deceased for postmortem. He prepared spot map (Ex.P/9) on 1.11.2000 and on 4.12.2000 spot map (Ex.P/6) also got prepared by Kishore Soni – Patwari (PW3). A.K. Shrivastava (PW.7) also examined all available witnesses during investigation. On completion of investigation, he submitted charge – sheet under Section 302 IPC. The case was committed to Court of Sessions. The charge was framed. The appellant, however, pleaded not guilty to the charge framed against him and claimed to be tried. Accordingly, he was put to trial. On consideration of the entire evidence adduced during trial and the documents on record the learned trial Court convicted the appellant under Section 302 IPC and passed necessary sentence as already indicated earlier. 3. Feeling aggrieved, the appellant preferred this appeal on the ground that the order of conviction and sentence impugned is manifestly unjust, incorrect and illegal as much as, it is against the weight of evidence on record. It is urged that the conviction is based on the testimony of child witness Bhuribai (PW5) who is said to be the eyewitness in the case and her statement is full of ---3--- contradiction and omissions, this fact has not been considered by the learned trial Court while passing the impugned judgment. It would contend that PW5 in paragraph 7 of her cross examination has deposed that the appellant was running from the place of occurrence. Learned counsel for the appellant has further submitted that at the place of occurrence there was no sufficient light to identify the appellant and in these circumstances, benefit of doubt ought to have been given to the appellant by the trial Court while passing the impugned judgment. She also submitted that nobody has seen the present appellant committing alleged offence and his identity is doubtful. The learned trial Court without considering these aspects in the matter passed the impugned judgment which is liable to be set aside. She also submitted that as per spot maps (Ex.P/6) and (Ex.P/9) prepared by the Patwari and the Investigating Officer. the distance between the place of occurrence and the place where Bhuribai (PW.5) was sleeping along with Kamma (PW.6) is about ½ Km. and on that fateful night there was no light at the place of occurrence, the identification of the appellant is doubtful, the learned trial Court without considering these facts committed an error in convicting the appellant for the alleged offence and prayed that the impugned judgment and order of conviction be set aside and the appellant be acquitted of the aforesaid charge. 4. On the other hand, learned Govt. Advocate drew our attention to the whole statement of child eyewitness – Bhuribai (PW5), statement of investigating officer (PW7), Sukmabai (PW4) and Dinesh (PW8) and submitted that PW4 was sleeping near to the deceased and she had occasioned to see the appellant who was armed with 'Baka' and was inflicting injuries to the deceased and her statement is reliable and trustworthy, the learned trial Court has not committed any legal error in convicting the appellant for the said offence and prayed for dismissal of the appeal. ---4--- 5. We have heard the learned counsel for the parties and perused the record of the trial Court. 6. Dr. Y.K. Joshi (PW1) had conducted the autopsy of the deceased and prepared the postmortem report (Ex.P/1). As per the postmortem report the following antemortum injuries were found on the body of the deceased:- “Rigor mortus present, Ext injuries were on neck Horizontal Rt. Lat & Post from – Below mondible to cervical vertical column central 7'' x 3.5'' x 4''- cutting: ms, Bs Ns & Bones. 2. Injuries wound on face Rt. Maxillary to nose Horizontal 3''x1/2''x1/2''. 3. Incised wound on face Rt. Side below injury no.2 3''x2''x2'' cheek through & thumb at L.B month. 4. Incised wound on Rt shoulder Ant. Horizontal 3''x2''x1''. 5. Incised wound on left index finger 1''x1/2''x1/2''. 6. Incised wound on face left – oblique – from lower lip to neck with # mandible 3.5'' x 2.5''x2'', caused by sharp object Ante mortum nature.” 7. As per the opinion of the doctor (PW1) the cause of death is shock as a result of hemorrhage due to multiple incised wounds, homicidal in nature. The death had taken place within 24 hours from the date of postmortem examination. 8. Dr. Y.K. Joshi (PW1) in paragraph 5 of his cross – examination has deposed that the death was due to injury No.1. He has further deposed that there was no injury on the vocal card of the deceased nor he has mentioned the said fact in the postmortem report (Ex.P/1). Vide Ex.P/2, he has also opined that the injury can be possible by 'Baka' which was seized from the possession of the appellant. 9. Sadhashiv (PW2), in whose presence 'Baka' and one blood stain shirt of the appellant were seized and a Panchnama to this effect was prepared vide (Ex.P/5), has turned hostile and has not supported the case of the prosecution. This witness in paragraph ---5--- 4 of his cross–examination has deposed that appellant Bhaysingh and deceased Dhakadiya were working in his agricultural field as labourer. He has further deposed that deceased Dhakadiya was having illicit relations with the wife of accused – Bhaysingh which Bhaysing does not like. He has further deposed that earlier also there was quarrel between them. From the statement of PW2 it is clear that there were prior disputes between the deceased and the appellant and their relation was not very good. 10. Kishore Soni (PW3), deposed that on 4.12.2000 he was Patwari of the village; on that very day he had prepared spot map (Ex.P/6), in presence of owner of the agricultural land and Chowkidar. He further deposed that at the time of preparation of the spot map the dead body of the deceased was not lying and he had prepared a map at the instance of Karansingh Patel. 11. Sukmabai (PW.4), mother of the deceased, although not an eyewitness to the murder of her son, testifies that her son deceased Dhakariya was working in the agricultural field of Bhagwan Seth and in the night he used to watch T.V. and sleep in the Tapra. On the fateful night he was sleeping along with her daughter Bhuribai (PW5) near the well, at about 10.00 PM she heard the shriek of her daughter Sukmabai (PW4). She was saying 'nkSMuk & nkSMuk Hkk;flag us esjs HkkbZ dks dkV fn;kA'. she reached the spot and saw that Bhaysingh was armed with 'Baka'. She and her daughter Bhuribai (PW5) went to Police Station and lodged the report. She has further deposed that on the fateful night the deceased was sleeping near the well of Dinesh Sarpanch. The distance between the well of Dinesh Sarpanch and well of Bhagwan Seth is between 100 to 50 ft. PW4 was sleeping near the well of Sadhashiv (PW2). She has further deposed that her son was sleeping near the well of Dinesh for the last 2-3 days. She in paragraph 6 of her cross–examination admits that at the time of occurrence she was sleeping. No sooner she received shriek of her daughter she immediately rushed to the place of ---6--- occurrence. In paragraph 8 she has deposed that deceased Dhakariya used to come to the well of Dinesh to watch TV. In paragraph 5 she has deposed that wells of Shivnarayan and Dinesh Patel are adjoining to each other and there is not much distance between them. 12. Bhuribai (PW5), child eyewitness of the incident has deposed that she alongwith Bhaysingh, Kamla and Gamarsingh were working at the agriculture field of Bhagu. Appellant Bhaysingh was residing near to her house. He was working in the agriculture field of Saddu Kisan. Her brother (deceased) was sleeping near the well of Sarpanch along with Kamla and Sepu. On the fateful night at 10.00 in the night appellant Bhaysingh caught hold of his brother and inflicted injuries by 'Baka'. She on hearing the shriek of her brother saw the whole incident and also cried for help. On hearing her cry, her mother Sukmabai (PW4) reached the spot. After inflicting injury accused Bhaysingh ran away from the place of occurrence. She and her mother went to Police Station Kishanganj and lodged FIR (Ex.P/7). She in her cross – examination has deposed that she and her brother were sleeping just near to each other. They were sleeping in the Tapra (hut). At the time of incident her mother was sleeping in the agricultural field of Sadashiv (PW2). She has further deposed that along with her mother Sukmabai (PW4) her brother Gamriya also came at the place of occurrence. The fateful night was very dark, hut was closed from all the 4 corners. The distance between the hut and the well was around 50 ft., electric pole was just near the well and the bulb which was installed on the said electric pole was on. She also saw accused Bhaysingh running from the place of occurrence. In paragraph 9 of her cross-examination she has further deposed that agricultural field of Sarpanch and agricultural field of Shivnarain are opposite to each other and in between there is one road. Kamabai (PW6) has turned hostile and has not supported the case of the prosecution. ---7--- 13. A.K. Shrivastava (PW7) deposed that on 31.10.2000 he has recorded the FIR (Ex.P/6) and, thereafter, investigated the matter and during investigation he prepared spot map (Ex.P/9), inquest report (Ex.P/10) and vide letter (Ex.P/11) sent the dead body of the deceased to Civil Hospital, Mhow for postmortem. Ex.P/2 is the query sent by him which was replied by PW1 on 24.11.2000. In paragraph 2 of his statement he has denied the suggestion that the incident had occurred near the well of Dinesh Patel. 14. Dinesh (PW8), who has also turned hostile, has deposed that he is Panch of village Navda. On the fateful night he came to village from Indore at 10 to 10.30 PM. Chowkidar Ramaji came to his place and stated that lot of noise was coming from the well of Shivnarain. He asked the Chowkidar to go there and then he reported the matter to the police and came along with the police. This witness has further deposed that his agricultural field is towards veterinary college road and agricultural field of Shivnarain is on Harsola road and in between the two there is distance of ½ Km. 15. As per statements of PW8, PW2, PW4 & P/5 it is clear that the place of incident is agricultural field of Shivnarain. At the time of occurrence the deceased was sleeping along with his sister in the hut which is situated near the well of Shivnarain. Rukmabai (PW4), mother of the deceased was sleeping at the agricultural field of Sadashiv (PW2) and there is not much distance between the field of Sadashiv and well of Shivnarain. There was one bulb at the well of Shivnarain and the light was sufficient to see the place of occurrence. Bhuribai (PW5) in her statement very categorically stated that appellant Bhaysingh assaulted his brother with 'Baka' and when he raised hue and cry she got up and started raising alarm to save the life of her brother. Hearing her shriek her mother Sukmabai (PW4) and other villagers came to the spot. Nothing has been elicited from her cross – ---8--- examination to cost a shadow of trustworthiness of this deponent. Her testimony inspire confidence and as such her evidence is credit worthy. Her testimony remain unshaken during cross – examination. We, therefore, do not find any reason rather convincing to discard the corroborative testimony of PW.5. The testimony of PW.4 is corroborated by PW5. Both of them also supported the prosecution case. 16. Dr. A.K. Shrivastava PW.1 has opined that the death was homicidal in nature and had caused due to shock and hemorrhage, as a result of above mentioned injuries. He has further opined that the said injuries may be caused by an incriminating substance like 'Baka' (sharp cutting weapon). Against the back drop of such ocular evidence being consistent with medical evidence, the evidence adduced by the minor sister of the deceased (PW5), who was present at the sense of occurrence and she had witnessed the incident. On appreciation of the evidence on record, we are of the view that the learned trial Court has rightly appreciated the statements of the prosecution witnesses and passed the judgment and order of conviction against the appellant. The view taken by the learned trial Court is just and proper. No case is made out to disbelieve the statement of the sole eyewitness. As per statement of Dinesh Patel (PW8), at the relevant time he was Panch of the village and as per his statement also the place of occurrence was agriculture field of Shivnarain, which is adjoining to the agriculture field of Sadashiv (PW2). Taking such factual scenario into account the testimony of sole child eyewitness, PW5 has been subjected to rigorous judicial scrutiny with great care and caution and in our opinion it has passed the test of reliability and truthfulness. 17. Therefore, on proper evaluation and consideration of entire gamut of ocular evidence including the testimony of the sole eyewitness, we hold that the prosecution has proved the charge under Section 302 of IPC against the appellant beyond any ---9--- shadow of doubt. Therefore, there is hardly any scope to interfere with the order of conviction and sentence impugned and the same deserves to be maintained, in the facts and circumstances of the present case. In the light of the foregoing discussion, the judgment and order of conviction impugned are hereby confirmed. 18. We therefore, do not find any merit in the present appeal. Accordingly, the appeal stands dismissed. (P.K. Jaiswal, J.) (I.S. Shrivastava, J.) rcs*