Vivek Rusia, J, Rajendra Kumar Vani, J
This appeal has been preferred against the judgment dated 26/04/2013 passed by the Court of Sessions Judge, Guna (M.P.) in Sessions Case No.278/2012, whereby the appellant has been convicted under Section 302/34 of the Indian Penal Code, 1860 (for brevity “IPC”) and sentenced to undergo life imprisonment with fine of Rs.500/- and under Section 323/34 of IPC and sentenced to undergo one month's R.I with fine of Rs.200/- with default stipulation.
2. Draped in brevity, the case of the prosecution is that on 04.08.2012, at about 09 pm, when the complainant Geetabai (PW-5) and her daughter – Bhuribai (PW-6) were cooking food at their home in Adiwasi Moholla in village Paranth, her husband Babu had gone to her maternal house to invite guests. She heard the sound of screaming of her husband from the side of the bungalow situated in front of her house and when Geeta and Bhuri came out from the house, they saw that Gopal was beating her husband with a farsa, Santosh with a luhangi. Her husband was telling that they have not returned one thousand rupees from last twelve months and are beating him. When Geeta and her daughter Bhuri went to save, Santosh gave Geetabai two-three luhangi blows continuously. Due to which, she suffered injuries on her head, left hand and ribs on the right side. She fell down and Gopal started beating her husband Babu with farsa and Santosh with luhangi. Due to which, he suffered greivous injuries on his neck at left side, left eye and forehead, as a result of which, he died. Ramgir (PW-10) and Laxman (PW-9) were present at the time of quarrel and saw the incident. Accused Santosh and Gopal after the incident ran away from the spot. On getting the information about the quarrel at village paranth, the police after making entries in Rojnamcha, reached the spot. The Dehati Nalishi (Exh. P-8) was lodged by the complainant Geetabai (PW-5) which was registered at Crime No.0/12 for the offence punishable under Sections 302, 323, and 34 of IPC. Thereafter, the FIR (Exh. P-1) was registered at Crime No.82/2012 at Police Station Bamori for the offence punishable under Sections 302, 323 and 34 of IPC. Orignal Marg Case No.09/2012 was registered. Upon completion of investigation including recording of police statements, collection of evidence and necessary formalities, challan was filed. The charges were framed against the appellant under Sections 302/34 and 323/34 of IPC.
3. The appellant abjured his guilt and claimed for trial. In order to bring home the charges, the prosecution has examined as many as 14 witnesses and exhibited documents P/1 to P/20, while the defence did not examine any witness.
4. The learned Sessions Court after appreciating the evidence available on record, convicted and sentenced the present appellant, as mentioned above.
5. Being aggrieved by the impugned judgment of conviction and order of sentence, appellant has preferred the instant appeal.
6. Learned counsel for appellant while taking exception to the impugned judgment of conviction and order of sentence submits that the Sessions Court has not appreciated the evidence placed on record in correct perspective. The case of prosecution is based on interested witnesses despite, the trial Court has erred in convicting and sentencing the appellant. The prosecution story is belied by medical evidence. In the alternative, it is submitted that since, the incident took place all of a sudden on a very trivial issue, therefore, the act of the appellant would come within the purview of Section 304 Part I of IPC and he has already suffered about 12 years' incarceration, and therefore, the period of sentence already undergone by the appellant, is sufficient to meet the ends of justice.
7. Per contra, learned counsel for the State by supporting the impugned judgment submits that the learned trial Court after appreciating the evidence in proper perspective has rightly convicted and sentenced the appellant and no interference is warranted in the impugned judgment.
8. Heard learned counsel for the parties and perused the record.
9. At the outset, this Court has to examine the evidence as to whether the injured Geetabai (PW-5) has sustained simple injuries and whether deceased Babu Singh has died in the incident and his death was homicidal in nature. For this purpose, the statements of Dr. D.S. Rana (PW-3) and Dr. P.N.Dhakad (PW-4) are important.
10. Dr. D.S. Rana (PW-3) stated in his statement that on 05.08.2012, he examined the injured Geetabai (PW-5) and found following injuries on her body :
1. Lacerated wound on right side of head of size 1x1/4x1/4 cm.
2. Contusion on left shoulder of size 3 x 2 cm having redness.
3. Linear abraison on chest and right side of abdomen of 25 cm long having redness.
11. He further stated that all three injuries were caused by hard and blunt object and were simple in nature and were caused within 24 hours of the examination. Though this witness admits in cross-examination that these three injuries may be caused due to fall on a hard surface but no such defence has been taken by the accused in his statement under Section 313 of Cr.P.C as well as no defence witness has been examined in that regard. Therefore, mere showing possibility in this regard does not dent the case of prosecution as regards the simple injuries sustained by the injured Geetabai (PW-5) in the incident.
12. Dr. P.N. Dhakad (PW-4) stated in his statement that on 05.08.2012, he examined the deadbody of deceased Babu Singh and found the following injuries :
1. Incised wound of size 8cm x 2.5 cm x 2cm on the upper part of left neck.
2. Incised wound on left side of forehead size 5 x 1 cm x bonedeep.
3. Incised wound on the face below the left eye of size 3 x 1.5 x 1 cm.
4. Contusion on right side of chest below nipple.
5. Abraison on left side of neck of size 8 x 0.5cm.
6. Abraison on right side of stomach of size 2 x 2cm.
7. Contusion on right side of stomach of size 2 x2 cm.
8. Constusion on middle of the chest of size 20 x3 cm.
9. Contusion on right and upper part of chest of size 10 x 6 cm.
10. Contusion on left side of chest of size 12 x 4cm.
13. On internal examination, Dr. Dhakad (PW-4) found a fracture in the mandible bone of the face of deceased. A dipressed fracture was found in the left maxilla bone of the face. A fracture was found in the left temporal bone of head. Blood clot (hemotoma) was found in the brain. Fracture was found in the third, fourth, fifth and sixth ribs of the right side. Fracture was found in the third, fourth, fifth, sixth and seventh ribs of the left side. Both lungs were ruptured. Clotted blood was found in the membranes of stomach. Liver and Kidney were ruptured and contusion was found in the kidney. Other parts of the body were found pale. Abdominal cavity and thoracic cavity were found filled with blood. As per Dr. Dhakad (PW-4), the external injuries were of grevious nature and ante-mortem.
14. Dr. P.N. Dhakad (PW-4) has categorically denied the suggesion given by the defence that the injuries found on the body of the deceased may be sustained if a person would fall in deep ditch. The statement of Dr. P.N. Dhakad (PW-4) clearly establishes that the death of the deceased Babu Singh was homicidal in nature. He has sustained as many as three injuries by sharp cutting object on vital parts face and head and as many as 7 injuries by hard and blunt object on other parts of body and collectively these injuries caused the death of the deceased. Therefore, the death of the deceased proved to be homicidal in nature.
15. Now, we have to examine that whether the homicidal death of the deceased and simple injuries to Geetabai (PW-5) were caused with intention/knowledge by accused and co-accused (who was juvenile at that time) in pursuance to their common intention to commit said offences.
16. Eye witness Geetabai (PW-5) who was also injured in this incident categorically stated in her statement that accused Gopal borrowed Rs.1,000/- from her husband one year ago and on demanding the money back by her husband, accused Gopal and juvenile Santosh used to quarrel with her husband. On the date of incident, at around 09 pm, she was preparing food in her house and her daughter Bhuri was also present in the house. Her husband/deceased had gone to her father's house to invite guests. After sometime, she heard screaming and sound of quarrel from outside of her house. Her daughter and she came out of the house. They found Gopal armed with farsa and Santosh armed with luhangi causing marpeet with her husband Babu Singh. Her daughter and she tried to save her husband, then juvenile accused Santosh caused injury by luhangi on her head and ribs. She fell down. Gopal and Santosh kept beating her husband who sustained grevious injuries on his body. Ramgir (PW-10) and Laxman (PW-9) were also reached the spot and saw the incident. Due to the injuries, her husband died on the spot. She lodged Dehati Nalishi (Exh. P-8) on the spot. The police gave notice (Exh. P-3) and prepared lash panchayatnama (Exh.P-10).
17. Bhuribai (PW-6), daugter of deceased, supported the version stated by Geetabai (PW-5) in toto.
18. Laxman (PW-9) and Ramgir (PW-10) are also the eye witnesses of the incident. They also supported the case of prosecution and reiterated the incident in tune with the statement of Geetabai (PW-5) and Bhuribai (PW-6). Though, the witnesses, Babali (PW-8) and Mannu Sehariya (PW-11), are not the eye witnesses to the incident, yet they have been informed as regards the incident by eye witnesses.
19. In this case, the witnesses examined on behalf of proecution as eye witnesses are Geetabai (PW-5), who is widow of deceased; Bhuribai (PW-6) who is the daughter of deceased; Laxman (PW-9) and Ramgir (PW-10) who happen to be the brothers-in-law of the deceased and other witnesses Babali (PW-8) who is the father-in-law of the deceased and Mannu (PW-11) who is the brother of the deceased. These all witnesses are relatives but it is settled principle of law that their testimony cannot be brushed aside on the ground of their relations, though their testimony is to be examined with circumspection.
20. In the case of State of U.P. Vs. Shobhanath, (2009) 6 SCC 600 the Hon'ble Apex Court has laid down that
“.....close relatives of the deceased would not try to rope in someone else as the murderers of their near relation and give up the actual accused. It is against the human conduct. In a case of murder the near relations would make all endeavour to see that the actual culprits are punished.” (para 30).
21. Similarly, in the case of Dalip Singh v. State of Punjab, (1953) 2 SCC 36 the Hon'ble Apex Court has held that “....ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that there is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth. However, we are not attempting any sweeping generalisation. Each case must be judged on its own facts....” (Para 24).
22. In the case of Seeman v. State, (2005) 11 SCC 142 the Hon'ble Apex Court has held that it is now well settled that the evidence of witness cannot be discarded merely on the ground that he is a related witness or the sole witness, or both, if otherwise the same is found credible. The witness could be a relative but that does not mean to reject his statement in totality. In such a case, it is the paramount duty of the court to be more careful in the matter of scrutiny of evidence of the interested witness, and if, on such scrutiny it is found that the evidence on record of such interested sole witness is worth credence, the same would not be discarded merely on the ground that the witness is an interested witness. Caution is to be applied by the court while scrutinising the evidence of the interested sole witness.
23. In the case of Hari Ram v. State of U.P., (2004) 8 SCC 146 the Hon'ble Apex Court has held that
“...when any incident happens in a dwelling house or nearby the most natural witnesses would be the inmates of that house. It would be unpragmatic to ignore such natural witnesses and insist on outsiders who would not have even seen anything....” (para 4).
24. Recently the Hon'ble Apex Court in the case of Gulab v. State of U.P., (2022) 12 SCC 677 in para 18 has held as under :
“18.It is well-settled in law that the mere fact that relatives of the deceased are the only witnesses is not sufficient to discredit their cogent testimonies. Recently, a two-Judge Bench of this Court in Mohd. Rojali Ali v. State of Assam [Mohd. Rojali Ali v. State of Assam, (2019) 19 SCC 567 : (2020) 3 SCC (Cri) 736] reiterated the distinction between “interested” and “related” witnesses. It was held that the mere fact that the witnesses are related to the deceased does not impugn the credibility of their evidence if it is otherwise credible and cogent....”
25. In the light of the ratio laid down by the Apex Court, the testimony of eye-witnesses cannot be disbelieved merely on the ground of their relations with the deceased. Though, certainly, their testimony are to be scrutinized with care and circumspection.
26. From this point of view, when we go through the testimony of Geetabai (PW-5) and Bhuribai (PW-6) and other two eye witnesses Laxman (PW-9) and Ramgir (PW-10), it is found that they remained unshaken in their cross-examination as regards their statements in examination-in-chief describing the incident.
27. Geetabai (PW-5) admitted in her cross-examination that the deceased and accused Gopal were known to each other and they used to extend support to each other. This fact also strengthens the case of prosecution as regards the money lent by deceased to the accused Gopal. Geetabai (PW-5) and Bhuribai (PW-6) denied the suggestions given by the defence that there were scuffle between deceased and accused Gopal and in that scuffle, deceased was fell down and sustained the injuries. This defence also belied by the statement of Dr. P.N. Dhakad (PW-4) who denied the suggestion of the defence that the injuries sustained by the deceased could be caused due to falling in a deep ditch. It is also calrified by these witnesses that when Geetabai (PW-5) and Bhuribai (PW-6) reached the spot, Laxman (PW-9) and Ramgir (PW-10) were not present but during the course of incident, they reached and saw the incident.
28. Laxman (PW-9) stated that marpeet with Geetabai (PW-5) was done when he reached the spot. He has seen the incident of causing marpeet with deceased by Gopal with farsa and juvenile accused Santosh with luhangi. He also clarified that the house of deceased and his house are in the same village and there is a distance of only 1 kilometer between both the houses. It is stated by this witness that when he and Ramgir (PW-10) reached the spot, accused fled away. Similar is the statement of Ramgir (PW-10). They both denied the suggesion given by the defence that they have not seen the incident and the deceased has sustained injuries by falling on hard surface.
29. Both these witnesses Laxman (PW-9) and Ramgir (PW-10) are also the witnesses of the arrest memo (Exh.P-13) of accused-Gopal, memorandum (Exh.P-14), which was prepared at the instance of accused Gopal and seizure memo (Exh. P-15) by which the farsa was seized from the possession of accused-Gopal. Both these witnesses have supported these documents as well and they remained intact on it in the cross-examination. These documents were prepared by the investigating officer, Umesh Mishra (PW-14), who also deposed that on 18.08.2012, he arrested the accused Gopal and at his instance, he has prepared memorandum (Exh. P/14). The accused-Gopal had informed him that he has hidden farsa in the room of his house. Thereafter, at the instance and from the possession of accused from a room of said accused, farsa was seized in front of Laxman (PW-9) and Ramgir (PW-10) and panchnama was prepared. Farsa which was seized from the accused is Article A-1. Umesh Mishra (PW-14) also stated that the seized material was sent for FSL examination. As per the report of FSL (Exh.P-20), the farsa which was seized from the accused Gopal was having stains of human blood. This fact also corraborates the story of prosecution against accused Gopal.
30. Balmik Pandey (PW-1) registered the FIR (Exh. P-1) on the basis of Dehati Nalishi (Exh.P-8) and also registered marg intimation as Exhibit P-2. Vishwaveer (PW-13) stated that Dehati Nalishi (Exh. P-8) was written by T.I. Umesh Mishra (PW-14). Umesh Mishra (PW-14) also deposed that on 04.08.2012, on the information given by complainant Geeta (PW-5), he had written Dehati Nalishi (Exh. P-8). Chain Singh (PW-2) is Patwari and he preapred the spot map (Exh.P-4).
31. In this case, the statements of eye witness Geetabai (PW-5), Bhuribai (PW-6), Laxman (PW-9) and Ramgir (PW-10) remained intact in their cross-examination. Their statements are supported with Dehati Nalishi (Exh.P-8) as well as medical evidence on record. Though the eye witnesses are the relatives of the deceased but on close scruitny, they are found fully reliable. There is no ground to disbelieve them. Therefore, it is rightly found proved by the Trial Court that accused Gopal with the juvenile accused Santosh in prusuance of their common intention voluntarily caused simple injuries to Geetabai (PW-5) and intentionally caused murder of deceased Babu with the help of deadly weapon farsa. As per the statement of Dr. P.N. Dhakad (PW-4), deceased sustained as many as 10 injuries. Out of which, three injuries were on the vital part caused by sharp cutting object and other seven injuries were also grevious in nature and the deceased had fracture in mandible, maxilla and temporal bones and also had hematoma in his brain. He also sustained fracture on the third, fourth, fifth and sixth ribs of the right side and fracture on the third, fourth, fifth, sixth and seventh ribs of the left side. Both the lungs, liver and kidney were also ruptured which shows that deceased was beaten brutually by the accused persons in pursuance to their common intention. Therefore, none of the exeption to Sec 300 IPC are attracted. The act of the appellant squarely falls within the definition of 'murder' as provided under Section 300 of IPC.
32. In the wake of the abovesaid conspectus, it can safely be held that the learned trial Court has rightly appreciated the evidence and recorded cogent and unimpeachable findings upon incriminating evidence available on record, while convicting the appellant under the aforementioned sections.
33. Resultantly, the appeal stands dismissed. The impugned judgment of conviction and sentence is hereby affirmed. The appellant is in jail. He shall undergo the remaining jail sentence. The order of the Trial Court as regards disposal of seized property is hereby affirmed.
34. The record of the Trial Court be sent back immediately along with copy of this judgment for necessary information and compliance.
