Bapu Alias Bapulal and Others vs State of M.P.

A.K. Shrivastava, J.—Feeling aggrieved by the judgment of conviction and order of sentence dated 22-2-2003 passed by learned Second Additional Sessions Judge, Ujjain in Sessions Trial No. 340/2002 convicting the appellants under Sections 148,302/149 and 323/149, IPC and thereby sentencing them to suffer imprisonment as mentioned in the impugned judgment, the appellants have knocked the doors of this Court by preferring this appeal u/s 374(2) of the Code of Criminal Procedure, 1973. In brief the case of the prosecution is that on 3-7-2002 in Village Maniyawada, Mangilal (hereinafter referred to as "the deceased") along with his sons Bharat and Jitendra and wife Ramubai were repairing the Merh (mound) of his field. At that juncture, appellants Pema and Chander arrived there and started hurling abuses to the deceased. They also intervened in repairing the mound and told that if the deceased would repair the mound he will be killed. It is also said that when the deceased asked not to hurl the abuses, after near about 20 minutes appellants arrived there carrying lathi and dhariya etc. and on seeing them coming with lethal weapons the deceased along with his wife and children went away, however, when these persons reached nearby the field of Gordhan, at that juncture, all the appellants encircled them. It is said that Pema dealt lathi blows on the head of the deceased and when his wife Ramubai went to rescue her husband she was beaten by appellant Chander. It is said that when Jitendra went to rescue his father and the mother, Chander again dealt lathi blow to him also and when Bharat intervened, it is said that Chander and Kailash rushed to cause injury to him. It is also said that appellants Bapulal and Ambaram also wielded lathis on the head of the deceased. On account of receiving injuries by the deceased he fell on he ground and he was picked up by his sons Jitendra and Bharat and brought the deceased in the village where entire episode was narrated to one Bhagwan Singh Patel and told that they are going to lodge the report. However, on the way nearby the filed of Bharatsingh deceased fell down and breathed his last.

It is the further case of prosecution that on the arrival of the police at the spot Bharat lodged Dehati Nalishi to Assistant Sub Inspector Anil Purohit.

On lodging of Dehati Nalishi the criminal law was triggered and set in motion. The Investigating Agency sent the injured persons and also the deceased to the hospital; prepared the spot map; recorded the statements of the witnesses; after the death of the deceased sent his dead body for post-mortem etc.

After the investigation was over a charge-sheet was submitted in the Criminal Court, which committed the case to the Court of Session and from, where it was received by the Trial Court for trial.

Learned Trial Judge framed the charges punishable under Sections 148, 302/149, 302, 323/149 and 325, IPC against the accused persons, which they denied and requested for the trial.

In order to bring home the charges prosecution examined its witnesses and also proved some documents. The defence of the appellants is of false implication and same defence they set forth in their statements recorded u/s 313, Cr.PC and in their defence they examined three witnesses, namely, Shantilal (D.W. 1), Banesingh (D.W. 2) and Arjunsingh (D.W. 3).

Learned Trial Judge on the basis of evidence placed on record came to hold that appellants have committed the offence under Sections 148, 302/149 and 323/149, IPC and thereby convicted them and passed different sentences which are mentioned in the impugned judgment.

In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence.

The contention of Shri Sharma, learned Counsel for the appellants is that specifically eye-witness Bharat (P.W. 3) who is also the author of Dehati Nalishi has stated that on the head appellant Pema dealt axe blow. There is general allegation against other appellants that they also caused injuries to the deceased. It has not at all been staled that by which weapon which of the appellant caused injury to the deceased. By inviting our attention to the testimony of Autopsy Surgeon, Dr. Ajay Sharma (P.W. 1) and the post-mortem report (Exh. P-1) of the deceased it has been contended by learned Counsel that in total four injuries were sustained by the deceased and out of these four injuries, two injuries were on the head which were caused by hard and blunt object and other two injuries were abrasions on the forearm and elbow. Learned Counsel submits that since the injury upon the head has been attributed to appellant Pema and that too by axe and in absence of any incised wound on the head of the deceased, the involvement of appellant Pema becomes highly doubtful for causing the death of the deceased.

Learned Counsel for the appellants has also invited our attention to the testimony of MLC Doctor, Dr. Jaijee Bhopte (P.W. 12) and has argued that although Ramubai (P.W. 4) was referred to the hospital and her MLC report is Exh. P-36, but, the MLC Doctor did not find any injury upon her. However, said MLC doctor found injuries on the person of Jitendra (P.W. 6), but they were found to be simple except injury No. 1, for which he was referred for X-ray. Learned Counsel submits that although Jitendra was referred for X-ray, but, the report of the Radiologist was not accepted by Trial Court and the appellants have been acquitted u/s 325, IPC. On these premised submissions it has been submitted by learned Counsel that by allowing this appeal the impugned judgment be set aside and appellants be acquitted from all the charges.

On the other hand, Shri Bohra, learned Public Prosecutor argued in support of the impugned judgment.

Having heard learned Counsel for the parties we are of the considered view that this appeal deserves to be allowed in part.

On bare perusal of the testimony of Bharat (P.W. 3) we find that in the examination-.in-chief itself he is saying that appellant Pema dealt axe blow on the head of the deceased. Thereafter, there is general allegation that all the accused persons caused injuries to the deceased. Specifically this witness is saying that Dehati Nalishi (Exh. P-4) was lodged by this witness in the hospital at Ujjain while the Investigating Officer Sub Inspector Anil Purohit (P.W. 11) says that it was recorded at the spot. According to us, since there is contradictory statement of Investigating Officer and the author of Dehati Nalishi, it raises a heavy doubt looking to the place, where it has been lodged. For no stretch of imagination one can think that the field where Dehati Nalishi was lodged and the hospital are the same and one place and this vast distinction raises a heavy doubt on the authenticity and the hallmark of the case of prosecution and it appears that Dehati Nalishi has been prepared in order to bring the appellants within the clutches of Section 302, IPC. Apart from this, it can also be visualised that author of the Dehati Nalishi, Bharat (P.W. 3) is not stating the true version of the scene, because according to him, Pema dealt axe blow on the head of the deceased, however, no such injury has been sustained to the deceased on his head. It would be appropriate to go through the testimony of the Autopsy Surgeon, Dr. Ajay Sharma (P. W. 1) and the post-mortem report of the deceased (Exh. P-1). According to the Autopsy Surgeon, the deceased sustained following injuries:-

(i) Lacerated wound on left parieto temporal region of skull 21/2" x 1/2" x muscle deep. Fresh clotted blood present;

(ii) Lacerated wound on left skull parietal region one inch above injury No. 1, 2" x 1/2" x muscle deep. Clotted blood present;

(iii) Abrasion on right side of forearm at lateral side. Size 1/2" x 1/4"; and

(iv) Abrasion on right side of forearm at lateral side one inch above injury No. 3, size 1/2" x 1/4".

On dissecting the dead body of the deceased Subdural Hematoma on left parietal region was found as well as a fracture on the left parietal bone was also found. According to the doctor deceased had died due to coma as a result of head injury. Indeed, there is no incised wound on the entire body of the deceased. True, abrasions, which are found on the forearm could be on account of fall. Since no incised wound has been found on any part of the body of the deceased, involvement of appellant Pema becomes very doubtful because according to the witnesses he has caused injury by axe to the deceased.

In Hallu and Others Vs. State of Madhya Pradesh, , the Supreme Court has categorically held that normally when witness says that the axe or spear is used, there is no warrant for supposing that what the witness means is that the blunt side of the weapon was used and if be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp-edged or a piercing weapon was used as a blunt weapon. Same proportion has been laid down by the Supreme Court in Thaman Kumar Vs. State of Union Territory of Chandigarh, and Kapildeo Mandal and Others Vs. State of Bihar, . Since there is no explanation in this regard, according to us, the involvement of Pema causing injuries by axe to the deceased becomes highly doubtful.

The other allegations against other appellants are of general character and therefore, according to us, the appellants are entitled for the benefit of doubt.

We do not find any merit in the contention of learned Public Prosecutor that there is oral dying declaration given by deceased to Balaram (P.W. 7). Bhagwansingh (P.W. 8). According to us, said oral dying declaration given to Bhagwansingh (P.W. 8) is an omission and this was confronted to this witness by his case diary statement (Exh. D-5). So far as the oral dying declaration given by deceased to Balaram (P.W. 7) is concerned, it is very vague and of general character. The Investigating Officer, Anil Kumar Purohit (P.W. 11) has categorically stated that no such oral dying declaration was given by the deceased to these witnesses and these witnesses never give such type of statements to him.

We have gone through the testimony of Jitendra (P.W. 6) in respect to causing injuries to him as well as his MLC report (Exh. P-38) and we find that appellants have been rightly convicted u/s 323/149, IPC. However, the sentence of one year RI awarded to them is reduced for the period they have already undergone. Resultantly, this appeal succeeds and is allowed in part. The impugned judgment of conviction and order of sentence under Sections 148 and 302/149, IPC is hereby set aside and the appellants are acquitted from these charges. The conviction of appellants u/s 323/149, IPC is hereby affirmed and they are hereby directed to suffer the sentence they have already suffered. Except appellant No. 6, Pema, all the appellants are on bail, their bail bonds are discharged. Appellant Pema is in jail, he be set at liberty forthwith, if not required in any other case.