Baliraj Singh vs The State of Madhya Pradesh

M.A. Siddiqui, J.—The appeal has been preferred by appellant feeling aggrieved against the judgment dated 5.4.1994, delivered by the then 2nd Addl.Sessions Judge, Sidhi in Sessions Trial No. 32/92 convicting the accused-appellant u/s 302/34 of IPC for committing murder of Mangalsingh and sentencing him to life imprisonment.

Undisputedly, appellant no.2 Baij Nath Singh died as such his name was deleted from the array of appellants as per Order dated 24.8.09 passed by this Court, so this appeal stands abated against him.

In nut shell, the prosecution story is that on 6.1.92 at 19.30 O''clock Hirasingh Gond (PW.7) lodged the report to the effect that around 5 PM when he was returning to village after carrying fuel wood from jungle, on the way where the house of Shivdhari was situated, Shivdhari shouted to him that some incident has occurred in his house. When Hirasingh reached his house, his wife told him that his brother Mangalsingh (since deceased) had gone to the field to answer the call of nature, he was beaten to death by Baliraj Singh and Baijnath Singh by sticks. So, he went to the field and saw that Mangalsingh was bleeding from his mouth and his Lota was lying nearby. Mangalsingh had died. Manfer, Ramsundar, Lakhansingh and Chameli told him that Baij Nath and Baliraj Singh had assaulted Mangalsingh with lathis and ran away. Hirasingh accompanied by Lakhansingh had gone to lodge the report and on the basis of his report, PS-Bahari, District-Sidhi registered Crime No. 5/92 for alleged offence punishable u/s 302/34 IPC against the appellants vide Ex. P/2.

Police reached the spot and sent the dead body for autopsy. Dr.R.K.Dixit (PW.13) conducted the postmortem and found a punctured wound placed just below the angle of Rt. mandible over the RT.side of the neck measuring 1" x 1/2" x 3" and diffused swelling over Rt.side of neck was present, clotted dark colour blood was present over that. Dr. Dixit found another lacerated wound over left parietal region of scalp, 4" above and medial to Left ear, its size was 2" x 1/2" x 1/2", dark colour clotted blood was present. Doctor found on dissection that major artery was punctured and trachea was cut and there was haematoma underlying the whole of Rt.side of neck, caused by sharp piercing object, and membrane of brain was pale. He opined that the injuries were ante mortam in nature and were sufficient in ordinary course of nature to cause death.

After usual investigation, police filed the charge sheet in the Court of Chief Judicial Magistrate, Sidhi where Criminal Case No. 152/92 was registered and the case was committed to the Court of Sessions where ST No.32/92 was registered. Sessions Trial was handed over to 2nd ASJ, Sidhi for trial and disposal of the case and learned 2nd ASJ, Sidhi on 5.5.92 put the charge u/s 302/34 IPC on the appellants and started trial. The defence of appellants was that they have been falsely implicated due to old enmity of land.

After recording evidence of 13 witnesses, the appellants were convicted and sentenced as aforesaid.

We have heard learned counsel for both the parties and perused the record of trial Court.

From perusal of record, it is very much clear that prosecution examined Shivdhari (PW.1), Chandra Pratap Mishra (PW.2), Rajbali Singh (PW.3), Ram Sundar Singh (PW.4), Chhotelal @ Ramadhar (PW.5), Shankardayal Soni (PW.6), Hirasingh (PW.7) brother of deceased who lodged the FIR, Chameli (PW.8) wife of Hira Singh, Ramrati (PW.9) wife of deceased Mangalsingh, Manfer (PW.10), Ranchhor Singh (PW.11) Assistant Sub-Inspector of Police and Investigating Officer, Lakan Singh (PW.12) and Dr.R.K.Dixit (PW.13).

As far as homicidal death is concerned, learned counsel for appellant has not challenged it. As per statement of Dr.R.K.Dixit, he found two injuries, one punctured wound just below the angle of Rt. mandible over the RT. side of neck, on dissection it was found that main artery was cut and right side trachea was also cut, and the other one was lacerated wound on the parietal region of scalp just 4 inches above the left ear. Dr. Dixit also stated that he gave written report (Ex.P/18). Written report (P.18) supported the version of this witness, so the injuries were ante mortam and death was homicidal.

Shivdhari (PW.1) stated in his statement that he saw Mangalsingh in dead condition. Chandrapratap (PW.2), Head constable, deposed that he registered Crime No. 5/92 u/s 302/34 IPC on the report of Hirasingh on 6.1.92 at 19.30 O''clock at PS-Bahari, District-Sidhi. Rajbalisingh (PW.3) Constable deposed that he took the dead body of Mangalsingh for postmortem. Ramsundar Singh (PW.4) stated that he saw wife of Mangalsingh crying and Mangalsingh was lying dead and there was injury on his head and blood was oozing out. At that time, Mangalsingh''s wife told him that accused Baliraj and Baijnath killed her husband. Chhotelal @ Ramadhar deposed that he saw Mangalsingh lying dead and Mangalsingh''s wife and Lakhan were there. They told the witness that Baliraj and Baijnath had beaten Mangalsingh and killed him. He further stated that Baliraj Singh and Baijnath Singh were arrested vide memorandum Ex.P/5 and P/6 and at their instance lathis were recovered as per Ex. P/7 and P/8, accused person were arrested vide Ex.P/11.

Shankardayal Soni (PW.6), Patwari stated that he prepared the spot map on 21.01.92 vide Ex.P/13. Hira Singh (PW.7), brother of deceased Managalsingh, deposed that on 6.1.92 when he was coming from the jungle with the fuel wood, then his wife and wife of Mangalsingh told him that Baliraj and Baijnath had beaten Mangalsingh and Mangalsingh was lying dead in the field. So, the witness went to the spot and saw Mangalsingh''s dead body. Thereafter he went to lodge report (Ex.P/2) at PS-Bahari, District-Sidhi. Police came on the spot and made the inquest and dead body was sent for postmortem.

Chameli (PW.8) deposed that in the evening she heard the noise of Mangalsingh, so she rushed to the spot and saw that Baliraj and Baijnath were beating Mangalsingh with sticks. There were injuries on the head and neck of Mangalsingh, Mangalsingh was dead and Baliraj and Baijnath flew away from there. When her husband came back, she narrated the incident to him. Ramrati (PW.9), widow of Mangalsingh, deposed that Mangalsingh had gone to answer the call of nature. After sometime Mangalsigh gave a shout so she rushed to the spot and found that Baliraj and Baijnath were beating her husband with lathis and the lathis were coated with iron. Her husband fell down and both Baijnath and Baliraj went towards west direction and when she went near, she found that her husband was dead and there were injuries on his neck and head and blood was oozing out. She stated that Hirasingh (PW.7), brother of deceased, went to lodge the report and then police came at the spot. Manfer (PW.10) deposed that he saw Mangalsingh''s dead body. Ranchhor Singh (PW.11), Investigating Officer, deposed that he went to the spot and prepared spot map (Ex.P/16), inquest report vide Ex. P/14 and P/15, and sent the dead body for postmortem vide Ex.P/17 and seized plain soil and blood stained soil vide Ex.P/10 and investigated the matter. Lakhan Singh (PW.12) stated that Baliraj and Baijnath both gave blows of lathis on Mangalsingh by which he died before the witness. The accused flew away towards the east direction. Though as per his police statement (Ex.D/1), he is not an eye witness, but at least he is a witness who had seen the appellants armed with lathis running away from the spot.

Learned counsel for appellant submitted that all the witnesses belong to one family and as per admission of witnesses, it is very much clear that there was a long dispute of land so due to this enmity the appellant has been falsely implicated.

On the other hand, learned counsel for State submitted that enmity is a double edged weapon and it is to be seen that from which side it has worked. At one hand it may be a ground for false implication, on the other hand, it may be a motive for crime, and it has to be seen in which direction it has worked. He submitted that in this case, as per clear version of eye witnesses, it is very much clear that it has worked as motive and not false implication.

Learned counsel for appellant submitted that mostly all the witnesses are of one family, so they are interested witnesses and their evidence ought not to have been relied on by the trial Court.

Learned counsel for State submitted that all witnesses are not relatives of deceased Mangalsingh. Even otherwise there is no rule that due to relationship, the testimony of eye witnesses should be rejected. At the most their testimony may be scrutinized strictly.

Learned counsel for appellant placed reliance on decision of Apex Court in Kapildeo Mandal and others vs. State of Bihar AIR 2998 SC 533 wherein it has been held that while appreciating variance between medical evidence and ocular evidence, oral evidence of eye witness has to get primacy as medical evidence is basically opinionative. The credibility of eye witnesses not to be judged merely on the basis of his relationship with deceased and strained relation with accused. Matter has to be seen as a whole.

Learned counsel for appellants submitted that medical evidence is contrary to the ocular evidence. He placed reliance on a decision of Apex Court in Mohar and Another Vs. State of U.P., . But in the case in hands there is specific statement of Ramrati (PW.9) that iron was coated in the sticks so punctured wound could be caused. So, there is no contradiction between the medical evidence and ocular evidence.

Learned counsel for appellants further submitted that there was darkness and incident could not be seen, but it is against the facts and circumstances of the case. There is specific statement of witnesses that there was sunlight at the time of incident and incident occurred at 5 PM.

Learned counsel for appellants next submitted that it is not clear from the evidence that who gave the specific blow to deceased Mangalsingh and the death cannot be amounting to murder as there was no intention or knowledge to commit murder. Reliance has been placed on a Division Bench decision of this Court in Kanriya @ Kanwarlal Vs. State of Madhya Pradesh, in which it has been said that where appellant gave lathi blows on the non-vital part like legs and hands for causing injuries to the deceased except one injury on the right parietal region, then appellant could be attributed knowledge to cause death of deceased not the intention, and the offence will fall u/s 304 Part II IPC not u/s 302 IPC.

On the other hand, learned counsel for State submitted that appellants went there with deadly weapons i.e. lathis in which iron was coated, and they choose vital part of neck and head and dealt blows on the vital parts, that too at the time when deceased was sitting to answer the call of nature in a lonely place, so it is very much clear that appellants were not only having knowledge but there was intention to kill Mangalsingh, so the offence is committed u/s 302 IPC.

From perusal of statement of Hirasingh (PW.7), Chameli (PW.8), Ramrati (PW.9) and Lakhan (PW.12), it is very much clear that nothing has come out in their cross-examination by which their statements may be rejected. On the other hand, the statement of witnesses are cogent, trust worthy and truthful.

As per above discussion, in our opinion, learned trial Court has very well appreciated the evidence of both sides and has come to the right conclusion that statements of prosecution witnesses are cogent, trust worthy and truthful and there is no suspicion for false implication and no interference is required as finding of sentence is very well founded. So, we uphold the conviction and sentence passed by learned trial Court. No interference is called for in this appeal. The appeal being devoid of merits is hereby dismissed.