Balla @ Baladeen vs State of M.P.

Rakesh Saksena, J.—Appellant has filed this appeal against the judgment dated 9th November, 2005 passed by Sessions Judge, Chhatarpur in Sessions Trial No. 235/2004, convicting the Appellant under Sections 302 and 323 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 5000/- and rigorous imprisonment for six months with fine of Rs. 500/-.

In short, the prosecution case is that on 20.9.2004 at about 9.05 a.m., complainant Mansukha lodged report with police Matguwan that at about 8.00 A.M., cattle of accused Balla @ Baladeen entered his Kuanwala'' field. When his father Chauva remonstrated with Balla and his wife, who were working in the neighbouring field, Balla got infuriated and assaulted Chauva on his head with a stick, as a result of which Chauva fell down unconscious. When Mansukha tried to save his father, wife of accused namely Prembai caught him and Balla continued to assault his father. Hearing noise Halke, Chutwa, Bhupat and Bhagwandas reached at the spot and intervened. Mansukha and his mother took unconscious Chauva to police station and lodged the report. Police registered the case u/s 307/34 of the Indian Penal Code against Balla and his wife and sent the injured for medical examination and treatment to P.H.C. Matguwan, where Dr. Lakhan Tiwari (P.W. 9) examined his injuries During treatment, Chauva died in the hospital. A merg report was recorded by Police City Kotwali, Chhatarpur. After inquest, dead body was sent for postmortem examination. Dr. D.D. Chaurasiya (P.W. 5), Assistant Surgeon of District Hospital Chhatarpur conducted the postmortem examination of the dead body and found three injuries on the body. After requisite investigation, charge sheet was filed against both the accused persons.

Appellant/accused abjured his guilt and pleaded false implication. According to Appellant, the cattle of deceased had entered his field and damaged the crops. When he drove them out, deceased wanted to stop them, but being dashed by the cattle, he fell down and suffered injuries.

For substantiating its case, prosecution examined 12 witnesses. Appellant also examined D Wl-Munnu Yadav and D.W. 2-Bhaiyalal in his defence.

Learned Sessions Judge, after trial and upon appreciation of evidence adduced in the case held the Appellant guilty under Sections 302 and 323 of the Indian Penal Code. However, finding the evidence not sufficient against the accused Prembai, acquitted her. Aggrieved by his conviction, Appellant has filed this appeal.

We have heard the learned Counsel for the parties.

It was no longer disputed that deceased Chauva died of head injury. It was also reflected from the evidence of Dr. Lakhan Tiwari (P.W. 9), who examined his injuries and also by the postmortem examination conducted by Dr. D.D. Chaurasiya (P.W. 5).

Dr. Lakhan Tiwari (P.W. 9) deposed that on 20.9.2004, he examined the injuries of Chauva at about 9.45 p.m. General condition of the injured was weak and he was unconscious. He found (i) swelling with contusion 3"x2" on right fronto parietal area of the skull (ii) contusion 2"x2" on left parietal region of the skull and (iii) lacerated wound 1" x 1/3" x skin deep on right forearm, on the body of deceased.

All the aforesaid injuries were caused by hard and blunt object. He had referred the patient for X-ray examination of injuries No. 1 and 2.

After the death of Chauva, V.B.S. Parihar, A.S.I. (P.W. 10) recorded the merg intimation report Ex. P/15 and after conducting the inquest Ex. P/17 sent the dead body for postmortem examination. Dr. D.D. Chaurasiya (P.W.5) conducted the postmortem examination. He also found (i) contusion 6 cm. x 4 cm. on right fronto parietal region of the skull (ii) 4cm.x 4cm. on left fronto parietal region of the skull and (iii) a stitched wound 3cm. long on right forearm. According to him, both the parietal bones of the skull of Chauva were fractured. Postmortem examination report is Ex. P/8. In the opinion of doctor, cause of death of the deceased was head injury. Duration of the injury was within 24 hours since the time of postmortem examination. It was thus clearly evident that the deceased Chauva died of head injury.

Learned Counsel for the Appellant, however, submitted that the trial Court gravely erred in placing implicit reliance on the evidence of eye witnesses namely Mansukha (P.W. 6) and Haridas (P.W. 11). According to him, Mansukha was the son of deceased, therefore, he was an interested witness and Haridas was a child witness, whose evidence was discrepant and contradicted. He was also a tutored witness. According to learned Counsel, Appellant was falsely implicated.

Learned Counsel for the State, on the other hand, justified and supported the conviction of the Appellant.

We have gone through the entire evidence on record. Mansukha (P.W. 6) categorically stated that he saw the incident from his field. The cattle of Balla Yadav had entered his field. When his father Chauva, who was also present there stopped the cattle, Balla and his wife started assaulting them with sticks. Balla gave stick blow on the head of his father, as a result of which he fell down. He further inflicted 2-3 stick blows to him. Thereafter, accused persons ran away. He picked up Chauva and took him to police station and lodged the report Ex.P/10. He then, carried Chauva to Chhatarpur for treatment, but after about one and a half hour, he died. He stated that he was also taken for medical examination, but he could not be examined because doctor was not present there. This witness was cross examined at length, but nothing could be elicited out to render his evidence unreliable. Though, there were some minor discrepancies, but they were not of substantial nature. Learned Counsel argued that since the injuries of this witness were not examined, it indicated that he was not injured in the incident and that he was not present at the time of occurrence. We are unable to accept this proposition because it has been clearly stated by Mansukha (P.W.6) that he was taken for medical examination, but his injury could not be examined because doctor was not available at that time. He categorically stated that his field was adjacent to the field of Balla and his house was situated only about 50 ft. away from the place of incident. Evidence of this witness stood corroborated by the version given by him in the first information report Ex. P/10 lodged by him only about an hour after the incident. His evidence was further corroborated by the medical evidence of Dr. Lakhan Tiwari (P.W. 9), who found three injuries on the body of Chauva, caused by hard and blunt object.

Haridas (P.W. 11), happened to be a child witness of about 10 years of age. He was son of Mansukha (P.W. 6). Haridas, though in the chief examination of his evidence stated that the cattle of Balla had entered his field and Prembai and Balla had assaulted Chauva with sticks, but in the cross examination, he swerved and said that his cattle had entered the field of Balla and he had driven them out. However, he firmly denied that Chauva fell down by the push of cattle. This discrepancy, in our opinion, cannot be held to be so material as to render his whole of the evidence unreliable. He has remained firm that Balla inflicted stick injuries on the head of Chauva. He, though admitted that police people suggested him as to how he had to give his statement, but he did not say that he deposed according to guidance of police people. Thus, the evidence of this witness rendered firm corroboration to the evidence of Mansukha (P.W. 6). We are unable to accept the argument advanced by learned Counsel for the Appellant that since Mansukha and Haridas were related witnesses, therefore, their evidence deserved to be discarded. In Verghese Thomas Vs. State of Kerala, the Apex Court held that the evidence of relatives cannot be regarded as suspect needing corroboration from independent witnesses, when there is no previous enmity between the relatives of the injured and the accused. In the present case, there is no iota of evidence to indicate that there was previous enmity between the complainant and the accused.

After bestowing our anxious consideration to the submissions made by learned Counsel for the Appellant and having gone through the record, we find that it has been amply established that it was Appellant, who had caused head injury to deceased Chauva, as a result of which he died.

The next submission by the learned Counsel for the Appellant is that the incident had occurred suddenly, on spur of moment without premeditation, therefore, trial Court committed error in convicting the Appellant u/s 302 of the Indian Penal Code. Learned Counsel submitted that the incident erupted suddenly when deceased remonstrated with the Appellant for entering of his cattle into the field of deceased.

Learned Counsel for the State on the other hand submitted that the deceased was an old man of 70 years of age. The act of Appellant in inflicting two stick blows on the head of deceased clearly indicated that he intended to cause death of deceased, therefore, the conviction of the Appellant u/s 302 of the Indian Penal Code was fully justified.

From the evidence of Mansukha (P.W. 6), it is apparent that there was no previous enmity between the deceased and the Appellant. It was just when deceased remonstrated with Appellant about his cattle entering the field of deceased, Appellant inflicted stick injuries on the head of deceased. It is true, from the evidence of Dr. Lakhan Tiwari (P.W. 9) and Dr. D.D. Chaurasiya (P.W. 5), it is revealed that two blows by hard and blunt object were caused on the skull of deceased, as a result of which, his left and right parietal bones of the skull were fractured, but at the same time, it can be gathered from the surrounding circumstances, that there was no premeditation on the part of Appellant and just on the spur of the moment, he took in his mind to assault the deceased with stick. It can also be gathered that in doing so he might have got oblivious of the fact that deceased was an old man of 70 years of age. Had it been a case of single blow, it could have been held that the Appellant entertained no intention to cause death or to cause such bodily injury as was likely to cause death of deceased. But, Appellant inflicted two successive blows on the skull of deceased which resulted into fracture of two parietal bones, it can be readily inferred that he acted with the intention of causing such bodily injuries to deceased as were likely to cause death. In these circumstances, we arc of the view that the conviction of Appellant u/s 302 of the Indian Penal Code was not justified. However he was liable to be convicted u/s 304 Part-I of the Indian Penal Code.

Learned Counsel for the Appellant pointed out that the Appellant is in jail since the date of his arrest i.e. 23.9.2004, as such by now he has suffered custody for a period of about five years and eight months and that now he has attained the age of 60 years.

For the reasons stated hereinabove, the conviction of the Appellant u/s 302 of the Indian Penal Code is modified; he is convicted u/s 304 Part-I of the Indian Penal Code and in view of his old age, he is sentenced to rigorous imprisonment for seven years. His conviction u/s 323 of the Indian Penal Code and sentence of rigorous imprisonment for six months with fine of Rs. 500/- is affirmed. Sentences of imprisonment shall run concurrent.

Appeal partly allowed.