Sushma Shrivastava, J.@mdashAppellant Krishna Bahadur has been found guilty u/s 302 of IPC for committing murder of Jagdish Prasad and sentenced to life imprisonment with a line of Rs. 5,000/- in default imprisonment for 6 months, by Additional Sessions Judge, Mauganj, District Rewa, vide judgment dated 28-1-2003 passed in S.T. No. 36/2002. Being aggrieved by the aforesaid finding and sentence appellant Krishna Bahadur has preferred this appeal.
2. According to the prosecution on 8-9-2001 at about 3.00 P.M. in Village Raghunathgad of District Rewa, appellant Krishna Bahadur along with Vishnu and Dinesh had given a beating to the complainant''s brother-in-law Sanath Kumar. Complainant''s husband had taken him to I Ianumana for lodging the report. Complainant Savita, her father-in-law Jagdish Prasad (the deceased), daughter Krishna Kumari and son Dayashankar @ Babbu had also escorted them up to Ghogum. While they were returning back from Ghogum to their house at about 6.00 P.M. in the evening and when they reached their village near the house of Sobhnath, appellant Krishna Bahadur alongwith 8 other co-accused persons including the absconding accused Mithailal emerged there armed with lathis. Appellant Krishna Bahadur abused and told them that they had gone to lodge the report, so they will be done to death. Thereupon, complainant Savita her daughter Krishna Kumari and son Dayashankar @ Babbu all became frightened and ran towards the fields but complainant''s father-in-law Jagdish Prasad lagged behind and he was attacked and assaulted by the appellant and other co-accused.
3. First of all, appellant Krishna Bahadur gave him a lathi blow on his head and then absconding accused Mithailal gave a lathi blow on his neck. When Jagdish Prasad fell down, appellant Krishna Bahadur exhorted other co-accused persons to kill him. Consequently, all other accused persons assaulted the deceased with lathis and kicks and fist. On complainant Savita''s shouting for help from the field, Chotelal, Ramkali and Swami Sharan and some other villagers came to their rescue but the appellant and other co-accused persons escaped and ran away towards Kailashpur. Complainant Savita, her daughter Krishna Kumari and her son Dayashankar @ Babbu then came to Jagdish Prasad who was injured and lying there unconscious with bleeding from head injury. While he was being taken away to Hanumana he succumbed to his injuries at about 10.00 P.M.
4. Complainant Savita (P.W. 1) went to her husband at Hanumana and lodged FIR at Police Station, Hanumana. On the basis of her report and information FIR and Berg Intimation were recorded at Police Station, Hanumana and the offence was registered against the appellant and other co-accused persons. The body of the deceased Jagdish Prasad was sent for post-mortem examination. The blood stained earth and plain earth were seized from the spot. During the investigation, lathis used in the commission of the offence were also seized at instance of appellant Krishna Bahadur and other co-accused persons. After other usual investigation appellant and other co-accused persons were prosecuted by Police Station, Hanumana under Sections 147, 148, 302/149 of IPC.
5. Appellant and all other co-accused persons, except absconding accused Mithailal, were put to trial. Appellant Krishna Bahadur as well as other co-accused abjured the guilt and pleaded false implication and they also took plea of alibi.
6. The Trial Court on appreciation of the evidence adduced in the case extended the benefit of doubt to all the other accused persons except appellant Krishna Bahadur and found the appellant guilty of committing murder of Jagdish Prasad and as such convicted him u/s 302 of IPC and sentenced as aforesaid by the impugned judgment. Hence, the appellant Krishna Bahadur has come up in appeal.
7. Arguments of both the sides were heard and the record of the Lower Court perused.
8. It does not appear to be disputed that deceased Jagdish Prasad met a homicidal death. Besides the evidence of complainant Savita Bai (P.W. 1), it is also borne out from the testimony of Chotelal (P.W. 7), Swami Sharan (P.W. 10) and Brij Kishore (P.W. 11) that they had seen Jagdish Prasad lying injured at the place of incident. Dr. R.L. Singh (P.W. 17), who conducted the post-mortem on the body of deceased Jagdish Prasad, after his death, also found lacerated wound measuring 6 cm x 4 cm x 5 cm in the mid region of his scalp with both parietal bones fractured and broken into two pieces in the mid region and bone pieces piercing into the brain. According to Dr. R.L. Singh (P.W. 17) the injuries were ante-mortem and deceased Jagdish Prasad died due to coma as a result of head injury. There are no reasons to discard the aforesaid evidence. Thus, it is found established that deceased Jagdish Prasad met a homicidal death.
9. The next important question that falls for consideration is whether the homicidal death of deceased Jagdish Prasad was intentionally caused by appellant Krishna Bahadur?
10. The conviction of the appellant is founded mainly on the evidence of three eye-witnesses namely Savita (P.W. 1), her daughter Krishna Kumari (P.W. 5) and her son Dayashankar @ Babbu (P.W. 6) coupled with other corroborative evidence. According to all above eye-witnesses, who are the family members of deceased Jagdish Prasad, the incident of killing of deceased Jagdish Prasad was preceded by a prior incident of quarrel and marpeet with complainant''s brother-in-law Sannath Kumar by the appellant and two others on the same day in the afternoon and the matter was also reported to the police. As per deposition of these three witnesses, while complainant Savita (P.W. 1), her daughter Krishna Kumari (P.W. 5) and her son Dayashankar @ Babbu (P.W. 6) along with her father-in-law Jagdish Prasad were returning back to their home from Ghogum after escorting the injured Sannath Kumar up to Ghogum and when they reached their village at about 6.00 P.M., they were interrupted by the appellant and other co-accused persons and they were also chased. It has also come in their evidence that when they rushed towards the fields, old person Jagdish Prasad was left behind and he was assaulted by the appellant and other co-accused. Appellant Krishna Bahadur gave the first lathi blow on the head of deceased Jagdish Prasad and also exhorted others to kill him. On receiving the lathi blows Jagdish Prasad fell down sustaining injury in his head and while being taken away to Hanumana he succumbed to his injuries near Ghogum.
11. The learned Counsel for the appellant has argued that the above so called eye-witnesses are near relatives of the deceased and interested witnesses and their evidence being full of contradictions is not trustworthy and even their presence on the spot is doubtful and the Trial Court has grossly erred in placing reliance on their testimony, particularly when the other co-accused persons have been acquitted on the same evidence.
12. Now it is too well settled that the direct evidence of the eye witnesses cannot be discarded merely on the ground of their being near relatives or interested or partisan witnesses. It is also well settled as observed by the Apex Court in
13. Accordingly, on close and careful scrutiny of the entire evidence of the aforesaid three eye-witnesses, it is found that despite few contradictions, which are not vital, their evidence is not dislodged in any manner on the point that the appellant Krishna Bahadur had first of all gave a lathi blow on the head of the deceased Jagdish Prasad and thereby causing him fatal injury, while he was on way back to his home alongwith complainant Savita (P.W. 1) her daughter Krishna Kumari (P.W. 5) and her son Dayashankar @ Babbu (P.W. 6) while they were returning from Ghogum after escorting the injured Sannath Kumar up to Ghogum. This fact also finds place in the FIR lodged by complainant Savita (P.W. 1) at the Police Station, Hanumana and recorded by ASI, R.D. Dwivedi (P.W. 16) after the incident.
14. Although, complainant Savita (P.W. 1) her daughter Krishna Kumari (P.W. 5) and her son Dayashankar @ Babbu (P.W. 6) have been confronted with their police statement on certain points, yet their presence on the scene of occurrence is not in any manner rendered doubtful. On the other hand, their presence on the scene at the time of the incident is also established by the evidence of Swami Sharan (P.W. 10) and Brij Kishore (P.W. 11), who are sort of independent witnesses. Both of these witnesses have deposed that they had seen all these three persons on the spot, when they reached there on hue and cry. Both these witnesses have also deposed that they were informed of the incident by the complainant Savita (P.W. 1) naming the appellant as one of the assailant. There are no reasons to distrust this much evidence of these two witnesses which corroborates the presence of complainant Savita (P.W. 1) and her two witnesses namely Krishna Kumari (P.W. 5) and Dayashankar @ Babbu (P.W. 6) the daughter and son of the complainant on the spot at the time of incident.
15. Although, the above two independent witnesses declined to have seen the appellant assaulting or attacking the deceased and therefore these witnesses were also declared hostile by the prosecution, but it is also well settled as observed by the Apex Court in
16. Although the appellant Krishna Bahadur has also taken the plea of alibi and some defence evidence is also led in that behalf but in fact, appellant''s plea of alibi is not at all established. On the other hand, the suggestion as given during the cross-examination of the complainant Savita (P.W. 1) her daughter Krishna Kumari (P.W. 5) and her son Dayashankar @ Babbu (P.W. 6) that complainant Savita (P.W. 1) was hitting the appellant with chappals at the time of incident is indicative of his presence on the spot, which also belies his plea of alibi.
17. There has also been a suggestion of the defence during the cross-examination of the complainant Savita (P.W. 1) her daughter Krishna Kumari (P.W. 5) and her son Dayashankar @ Babbu (P.W. 6) that some Mithailal Kol and some other Arun Kol had actually assaulted the deceased, which they have denied, but that also appears to be fallacious because the complainant Savita (P.W. 1) her daughter Krishna Kumari (P.W. 5) and her son Dayashankar @ Babbu (P.W. 6) would not save the real assailant of their near relative in order to falsely implicate the appellant.
18. Besides, the version of above eye-witness that the appellant had struck the lathi blow on the head of the deceased is also corroborated by the seizure of blood stained lathi from the appellant''s house at his instance by the Investigating Officer Ashutosh Pandey (P.W. 18). The Investigating Officer As-hutosh Pandey (P.W. 18) has clearly stated that on the memorandum of the appellant Krishna Bahadur he had seized a blood stained lathi from the roof of the appellant''s house at his instance vide memorandum Ex. P-6 and seizure memo Ex. P-13. He has further stated that the blood stained lathi seized from the appellant (article A), which was also produced in the Court, was also sent for chemical examination to the Forensic Laboratory and as per FSL Report Ex. P-29, the lathi seized from the appellant Krishna Bahadur is found to be stained with human blood. There are no reasons to discard all this evidence about the seizure of lathi from the appellant and find of human blood there on. Appellant has not explained presence of human blood on the lathi seized from him, which also lends corroboration to the complainant''s and his witnesses'' version, that the appellant had given a lathi blow on the head of deceased Jagdish Prasad.
19. In fact, there are no reasons to disbelieve this part of the evidence of the complainant Savita (P.W. 1) her daughter Krishna Kumari (P.W. 5) and her son Dayashankar @ Babbu (P.W. 6) that they had seen the appellant striking the deceased with lathi on his head and thereby causing bleeding head injury to the deceased resulting in his death. Dr. R.L. Singh (P.W. 17) has also found an ante-mortem lacerated wound on the head of the deceased with both parietal bone fractured and broken into two pieces in the mid region bone pieces piercing into the brain and brain matter lacerated and blood vessels ruptured.
20. According to Dr. R.L. Singh (P.W. 17) the death of the deceased was caused by coma due to head injury. There are no reasons to disagree with the doctor''s evidence. It has also come in the evidence that the appellant has first of all assaulted the deceased with lathi and also exhorted the others to kill him. Thus, the head injury suffered by the deceased causing his death can be well attributed to the appellant Krishna Bahadur.
21. The nature of injuries suffered and sustained by the deceased on his vital part like head causing fracture of both the parietal bones breaking into two pieces and the pieces piercing into the brain and thereby damaging the brain by itself shows that the lathi blow was given by the appellant with complete force and with intent to cause his death of fatal injury on his head.
22. It is also evident from the record that the above incident was preceded by the prior incident of quarrel and marpeet by the appellant and his comrades with the complainant''s brother-in-law and the prior incident was also reported to the police and the subsequent event occurred when the complainant Savita (P.W. 1) and her father-in-law Jagdish Prasad with other family members were returning back, which is per se indicative of the fact that the subsequent event of assault and attack by the appellant on the deceased on his way back home was pre-planned. Hence, the possibility of the sudden fight is also ruled out. Thus, the act of the appellant Krishna Bahadur in giving a lathi blow on the vital part like head of the deceased with complete force and thereby causing his death appears to be well planned and well intended.
23. The learned Counsel for the appellant referring to
24. Now, a single blow or the number of injuries, as observed by the Apex Court in the
25. In the instant case, as stated earlier, it is clearly established, that the assault and attack by the appellant on the deceased was pre-planned. It is also established, that the appellant gave a lathi blow on the vital part like head of the deceased, a 60 years aged person with full force thereby causing fracture of both the parietal bones breaking in to two pieces and damaging the brain and thus causing his death. These facts well established from the record are per se indicative of the fact that the appellant gave a lathi blow on the head of the deceased with the intention of causing his death or such bodily injury as was sufficient in the ordinary course of nature to cause his death which ultimately resulted in his death.
26. Hence the argument of the learned Counsel for the appellant, that the act of the appellant falls u/s 304 of IPC does not deserve to be accepted. The citations referred to by the learned Counsel for the appellant are the decisions rendered on the peculiar facts of those cases and do not help the appellant in instant case.
27. In view of the foregoing discussion we are of the opinion that the Trial Court committed no error in finding the appellant guilty for committing murder of Jagdish Prasad and convicting and sentencing the appellant u/s 302 of IPC.
28. This appeal therefore, fails and is hereby, dismissed.
