Full Judgment
(1) Cr.A.No.78/2004 HIGH COURT OF MADHYA PRADESH: JABALPUR Division Bench:Hon'ble Shri Justice Rakesh Saksena Hon'ble Shri Justice T.K.Kaushal CRIMINAL APPEAL NO.78/2004 Bhagchand son of Baijnath Kahar, aged about 25 years, Resident of Hanuman Ward, Kareli, P.S.Kareli, District Narsinghpur. ...Appellant -Versus- State of Madhya Pradesh Through Station House Officer, Police Station Kareli, District Narsinghpur (M.P.) ...Respondent ------------------------------------------------ For the appellant:Shri V.P.Singh, Advocate. For the State: Shri Amit Pandey,Panel Lawyer. ------------------------------------------------ Date of hearing :
23. 08/2012 Date of Judgment:
28. 08/2012
JUDGMENT
Per : Rakesh Saksena,J.Appellant has filed this appeal against the judgment dated 19th December, 2003 passed by Sessions Judge, Narsinghpur in Sessions Trial No.32/2003 convicting the appellant under sections 302 and 324 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs.500/- and rigorous imprisonment for one year on each count, respectively. (2) Cr.A.No.78/2004 2. In short, the prosecution case is that on 18.11.2002 in the evening when accused/appellant Bhagchand was making children to indulge in gambling in front of the house of Rajjan, the deceased, Rajjan asked him to refrain from doing so and slapped him. Being annoyed, accused abused Rajjan and held out threats that he would kill him and went away. Next day i.e. on 19.11.2002 accused hurled abuses and again intimidated Rajjan to kill him. When Rajjan objected to it, there occurred an altercation. Accused rushed to his house and brought scissors. Dinanath, the younger brother of accused, caught hold of the hands of Rajjan from behind and accused dealt many blows of scissors in the chest and abdomen of Rajjan. When Malti Bai (PW-8), the mother of Rajjan, tried to intervene, accused assaulted her also with the scissors. When Mukesh Thakur (PW-1) tried to catch hold of accused persons, they ran away. Vimla (PW-6), the wife of Rajjan and Mukesh Rajput (PW-2) also reached at the spot. Mukesh Rajput and Mukesh Thakur carried Rajjan on a scooter to police station, Kareli where Mukesh Thakur (PW-1) lodged first information (3) Cr.A.No.78/2004 report Ex.P/1. Police registered Crime No.530/2002 against accused persons and sent injured Rajjan for treatment and medical examination to Government Hospital, Kareli.
3. Dr.C.S.Shiv (PW-10) examined Rajjan but declared him dead. He got the dead body of Rajjan kept in Mortuary. Injured Malti Bai was also referred for medical examination. Dr. Shiv examined her injuries and recorded MLC report Ex.P/17-A.
4. On the intimation sent by constable Pannalal, a marg intimation Ex.P/16 was recorded at police station, Kareli. Investigating Officer, Inspector R.A.Shukla (PW-11), before the witnesses, conducted inquest proceeding of the dead body and recorded memorandum Ex.P/2. He sent the dead body of Rajjan for postmortem examination to hospital, Kareli. Dr. T.C.Kalwani (PW-4) conducted postmortem examination of the body of Rajjan and tendered postmortem examination report Ex.P/14.
5. During investigation, investigating officer prepared the spot map, seized the clothes of deceased and injured and arrested accused persons on the same day. On the (4) Cr.A.No.78/2004 information given by accused Bhagchand, vide memorandum Ex.P/9, investigating officer recovered scissors from a drain near the Girls High School and seized the same vide memorandum Ex.P/10. Since accused Dinanath was found to be juvenile, his case was sent to concerned Juvenile Court and charge sheet against accused Bhagchand was filed in the Court of Magistrate, who in his turn committed the case for trial.
6. On charges under sections 302, 324 I.P.C. being framed, accused abjured his guilt and pleaded false implication. In his 313 Cr.P.C. statement, accused stated that deceased, because of the past quarrel, came to his house, abused him and asked him to vacate the house. Accused himself had brought scissors in his hand, but in the scuffle deceased himself suffered injuries. He also examined his father Baijnath as DW-1.
7. Learned Sessions Judge, relying mainly on the evidence of eyewitnesses Mukesh Kumar Thakur (PW-1), Vimla (PW-6), Malti (PW-8) and the medical evidence of Dr.T.C.Kalwani (PW-4) and Dr.C.S.Shiv (PW-10) held the accused guilt, convicted and sentenced him as aforementioned. (5) Cr.A.No.78/2004 Aggrieved by his conviction and sentence, appellant has filed this appeal.
8. Learned counsel for the accused/appellant submitted that the learned Sessions Judge misappreciated the evidence of eyewitnesses, who were close relatives of deceased, and bore animus against him. Though the incident is said to have occurred on the road, but no independent witnesses were examined. The evidence of aforesaid witnesses was discrepant and contradictory, therefore, learned Sessions Judge committed error in convicting the accused by placing reliance on the evidence of such witnesses. Per contra, learned counsel for the State submitted that the evidence of eyewitnesses was trustworthy. It stood corroborated by the evidence of other witnesses including the evidence of doctors. Their testimony could not be discarded merely on the ground that they were relatives of deceased. He supported the impugned judgment and justified the conviction of accused.
9. We have heard the learned counsel for the parties and perused the impugned judgment and evidence on record carefully. (6) Cr.A.No.78/2004 10. It has not been disputed that deceased met with a homicidal death. It has been categorically stated by Mukesh Thakur (PW-1), Vimla (PW-6) and Malti Bai (PW-8) that accused assaulted deceased with scissors as a result of which he suffered 6-7 injuries on his chest and abdomen. First Information Report Ex.P/1 was got recorded by Mukesh (PW-1) and deceased was referred to Kareli hospital where Dr.C.S.Shiv (PW-10) examined him and declared dead vide his report Ex.P/15-A. Investigating Officer R.A.Shukla (PW-11) recorded marg report and conducted inquest proceeding before the witnesses. He sent the dead body for postmortem examination. Dr.T.C.Kalwani(PW-4) conducted postmortem examination and vide his report Ex.P/14 found following injuries on the body of deceased:- (i) Lacerated-penetrating wound 6x4x2cm on medial border of left axilla; (ii) Lacerated-penetrating wound 5x4x3cm 4 fingers away from left nipple; (iii)Lacerated-penetrating wound 5x4x3cm on left border of mid of sternum; (iv) Lacerated-penetratingwound 5x4x2cm 4 fingers away from sternum; (7) Cr.A.No.78/2004 (v) Lacerated-penetrating wound on upper abdomen; (vi) Lacerated-penetrating wound 4x4x3cm 3 fingers from left to the umbilicus; (vii)Lacerated-penetrating wound 6x4x3cm on upper part of right side of abdomen. Pleural cavity was full of blood. Right side lung was torn. There was penetrating wound on mid part 3x2x2cm. There was also a penetrating wound 3x2x1cm on left atria to heart. All the major blood vessels were empty. There were penetrating wounds in the abdomen, peritoneal cavity, upper part of liver and spleen. In the opinion of doctor, the cause of death of deceased was neurogenic shock due to fatal injuries caused to vital organs like heart, lung, spleen and liver of deceased. Death was caused within four hours. Postmortem report Ex.P/14 was written and signed by him. Dr.Kalwani vide his query report Ex.P/15, opined that the injuries found on the body and the cut marks on baniyan of the deceased could have been caused by the scissors brought before him. Injuries of deceased were sufficient in the ordinary course of nature to cause his death. (8) Cr.A.No.78/2004 11. From the aforesaid evidence, we are satisfied that the death of deceased was homicidal in nature.
12. not the question before us is whether trial Court committed error in placing reliance on the evidence of eyewitnesses. Admittedly the eyewitnesses examined by the prosecution are close relatives of deceased. Mukesh (PW-1), Vimla (PW-6) and Malti (PW-8) are respectively, the brother-in-law, wife and mother of deceased. The question is whether the testimony of these witnesses could be discarded on the ground of their being relatives of deceased. It is fairly well settled position of law that the evidence of a witness who is related to either the deceased or the injured is not to be automatically rejected, notwithstanding the fact that it is cogent, credible and trustworthy [R.Prakash Versus State of Karnataka-(2004) 9 SCC 27].. So far as the relationship of eyewitnesses or the fact that they are interested and/or their so-called familiarity with the deceased is concerned, it does not per se render their evidence suspect. All that is required to be done in such case is to carefully (9) Cr.A.No.78/2004 analyse the evidence and if after deeper scrutiny it is found acceptable, to act on it [Shriram Versus State of M.P.-(2004) 9 SCC 292].
13. Mukesh Thakur (PW-1) admitted that he was real Saadu Bhai of deceased. His wife and the wife of deceased were real sisters. He used to live in Kareli. On 19.11.2002 at about 9:30 in the morning, he saw that accused Dinanath caught hold of the hands of deceased from back side and Bhagchand dealt about six blows of scissors on his front side. He and Malti Bai went to intervene, but they pushed them away and ran away. Malti Bai also suffered injuries at the hands of Bhagchand.
14. Malti Bai (PW-8) stated that deceased was her son-in-law. Since he had no work at Jabalpur he started residing at Kareli. On the date of occurrence, when she was filling water from the tap situated in front of the house, she saw accused abusing deceased. When deceased remonstrated with him saying as to why he used to provoke children to indulge in gambling, accused threatened him saying that he would commit his murder. He went inside his house and brought scissors. Accused Deenanath who was also (10) Cr.A.No.78/2004 present there, caught hold of his hands from behind and accused Bhagchand dealt 6-7 blows of scissors on the chest and abdomen of deceased. When she, Mukesh Thakur and Mukesh Rajput tried to catch him he also assaulted her with scissors. Deceased fell down unconscious. Mukesh Thakur and Mukesh Rajput carried him on a scooter to police station. She also went to police station and then to hospital. Doctor who examined her son-in-law, declared him dead. Doctor also examined her injuries.
15. Vimla Bai(PW-6) deposed that since last 5 years she was residing with her husband in village Kareli. She knew accused persons because they lived in front of her house. In the morning while she was cooking food in her house, she heard some noise. She came out of the house and saw Deenanath holding the hands of her husband and accused Bhagchand assaulting him with scissors in his chest and abdomen. When Malti Bai and Mukesh tried to save her husband, Malti bai also suffered injuries with the scissors. Her husband fell down unconscious. He was declared dead in the hospital. (11) Cr.A.No.78/2004 16. On perusal of the evidence of aforesaid witnesses, we find it consistent. The evidence of Mukesh Thakur (PW-1) finds corroboration from the first information report Ex.P/1 lodged by him immediately after the occurrence at police station, Kareli.
17. Learned counsel for the appellant submitted that Mukesh Thakur did not say that he heard accused persons abusing or threatening the deceased though in the first information report Ex.P/1 and police statement Ex.D/1 he mentioned the said fact. In our opinion, this discrepancy cannot be said to be of material in nature. The evidence of this witness remained consistent on the fact that he saw accused assaulting deceased with scissors. His evidence, besides first information report, also stood corroborated from the evidence of Vimla and Malti Bai. He admitted that at the time of occurrence he was brushing his teeth in front of his house. His house was situated at a distance of about 40 feet from the house of accused.
18. It is true that police statement of Vimla Bai (PW-6) was recorded after about 21-22 days after the occurrence, but merely because of (12) Cr.A.No.78/2004 that her evidence is not rendered unreliable. Investigating Officer R.A.Shukla (PW-11) explained that the police statement of this witness could not be recorded earlier because she was under grief. It can be assumed that the mental condition of a wife who saw her husband being stabbed to death would not be such that she could be interrogated immediately after the occurrence. She admitted that she told to police that she saw the incident, but her statement was not recorded on that day because on the next day of the incident her inlaws took her away from Kareli. Learned counsel for the appellant argued that this witness admitted that she was cooking food inside her house, therefore, it was not possible for her to have witnessed the actual occurrence. On perusal of the evidence of Vimla, we find that she stated that she heard exchange of abuses outside her house while she was cooking food inside her house, but when she heard voice of her husband, she went out and saw the occurrence. There was no past quarrel or enmity between accused persons and her husband. A day before the occurrence, accused Bhagchand was making children to indulge in gambling. She (13) Cr.A.No.78/2004 firmly denied that deceased took scissors to assault the accused persons and in the scuffle deceased himself suffered injuries. The evidence of this witness does not suffer with any kind of infirmity.
19. Malti Bai (PW-8) was also subjected to a long cross-examination, but nothing material could be elicited out to render her testimony untrustworthy. This witness categorically stated that a day before the present incident, deceased had slapped accused Bhagchand. She could not say definitely whether at the time of occurrence she was filling water in front of her house or she was going from her one house to another. According to her, there was no past enmity between deceased and accused, but he used to rebuke accused that he was spoiling the children by making them indulge in gambling. She too denied that deceased suffered injuries in scuffle when accused snatched scissors from the hand of deceased.
20. After a deep scrutiny of the evidence of aforesaid eyewitnesses, we find their evidence corroborated from each other and also from the evidence of Dr.T.C.Kalwani (PW-4), who (14) Cr.A.No.78/2004 conducted postmortem examination of the body of deceased. Dr.Kalwani testified that the injuries found on the body of deceased could be caused by pointed scissors. There were about seven lacerated- penetrating injuries which had damaged vital internal organs like heart, liver, lung, stomach etc. of deceased. In his opinion, the injuries found on the body of deceased were sufficient in the ordinary course of nature to cause his death.
21. Dr.C.S.Shiv (PW-10) who examined the injuries of Malti Bai (PW-8) found two incised injuries on her hand vide MLC report Ex.P/17-A. She suffered (i) incised wound 2.5x1x0.5cm on the posterior part of left hand; (ii) Incised wound 0.5x0.2x0.2cm on left elbow. According to doctor, these injuries were caused by sharp and pointed object.
22. It has been established that these injuries were contracted by Malti Bai in the same occurrence in which deceased suffered injuries at the hands of accused. As such, the presence of Malti at the time and place of occurrence is established beyond doubt. (15) Cr.A.No.78/2004 23. After a critical analysis and sincere appreciation of the evidence adduced by the prosecution, we find that it has been established beyond doubt that accused/appellant Bhagchand caused seven penetrating injuries with the scissors on the vital parts of the body of deceased. There appears nothing on record to indicate that accused was provoked by the deceased to indulge in assault. Since deceased admonished him on a day before the occurrence for not making children to indulge in gambling, with a motive to take revenge, appellant caused fatal injuries to deceased. From the manner of assault and the nature of injuries, it can be held with certainty that accused assaulted deceased with the intention to cause his death. In our opinion, learned Sessions Judge committed no error in convicting the appellant on the charge under section 302 of the Indian Penal Code. Since appellant also caused simple hurt with scissors to Malti (PW-8), he was rightly convicted under section 324 of the Indian Penal Code. (16) Cr.A.No.78/2004 24. For the reasons aforesaid, we find no substance in this appeal. Appeal is, accordingly, dismissed. (Rakesh Saksena) (T.K.Kaushal) Judge Judge b