Bhaiyalal vs State of Madhya Pradesh

Appellant has filed this appeal against the judgment dated 27.09.2007 passed by the First Addl. Sessions Judge, Shahdol in Sessions Trial No.

316/2006 whereby the appellant has been convicted under Section 302 of IPC and sentenced to undergo R.I. for life & fine of Rs. 500/- with

default stipulations.

The prosecution story in brief is that on the date of incident i.e. on 15.09.2006, appellant (father of the deceased) and Kamlesh were taking the

wood kept in the courtyard of the deceased. Bakar Sahu (since deceased) and his wife objected to the aforesaid act and in that event, the

appellant abused the deceased and caused injuries on the person of the deceased by a tangi. The deceased died on the spot. Next day in the

morning, report was lodged at police station by Babulal (PW-4). Police conducted investigation and filed charge-sheet. Appellant abjured his guilt

during the trial.

The Trial Court held the appellant guilty for commission of offence punishable under Section 302 of the Indian Penal Code and awarded

sentence as mentioned above.

Learned Counsel for the appellant submitted that conviction of appellant is based on the sole testimony of eye-witness Babiya Bai (PW-1). The

evidence is not sufficient to hold the offence proved against the appellant beyond reasonable doubt. The conduct of witness is unnatural. Learned

counsel has further submitted that there is delay in lodging FIR. In alternate, counsel for the appellant has submitted that the offence committed by

the appellant would fall under Section 304 Part I of Indian Penal Code.

Learned counsel for the State has submitted that there is evidence of eye-witness. The weapon was seized from the appellant and other

corroborative evidence is there on record. Appellant inflicted number of injuries on the person of the deceased. He was armed with an axe (tangi).

The Trial Court has rightly held the appellant guilty for commission of offence of murder and awarded proper sentence.

Babiya Bai (PW-1) is the wife of deceased. She is the eyewitness. Appellant is the father-in-law of the deceased. She deposed that outside of

her house which was surrounded by a fence (bari), a wooden log of sarai was lying. The appellant and his son Kamlesh had been taking the

wooden log for the purpose of preparing gada. My husband (since deceased) objected to the aforesaid act of the appellant and told him not to

take the wooden log. On this, the appellant started abusing my husband and he had inflicted blows of tangi on the neck and legs of my husband.

Kamlesh had inflicted blow on the shoulder of my husband by lathi. He fell down. Thereafter, both the appellant and Kamelsh ran away from the

spot. I went to the place of Babulal (matrimonial uncle) and Baban Sahu and told them about the incident. They came to my house where the dead

body of my husband was lying. In the morning, Babulal (PW-4) went to lodge the report at the police station.

Babulal (PW-4) verified the fact that Babiya Bai (PW-1) came to my house in the evening, she was weeping and she told me that the appellant

and his son Kamlesh had killed her husband. Thereafter, Ram Prasad Kewat and other persons went at the place of occurrence. We noticed that

the body of the deceased was lying on the earth. Babiya Bai (PW-1) told me that incident had occurred on the ground that the appellant and his

son Kamlesh were taking a wooden log for the purpose of preparing gada. Thereafter, I lodged report Ex. P/11 at police station in the morning

and signed the same. I also signed the spot map which was prepared by Patwari. Police came to the spot and prepared Panchanama.

The evidence of both these witnesses is unshakable in the cross-examination.

Baban Sahu (PW-2) deposed that at around 7 o''clock in the evening, Babiya Bai (PW-1) came to my house. She was weeping. She told me

that appellant and his son Kamlesh had killed the deceased. There was a dispute with regard to taking a wooden log. I reached on the spot. The

body of the deceased was lying on earth. I and Babulal went to the police station to lodge the report. Police came to the spot and seized plain and

red earth from the spot vide seizure memo Ex. P/3. Police also prepared Panchanama of the dead body (Ex. P/2) and spot map (Ex. P/4). I signed

both the documents. Police enquired from the appellant and on his memorandum (Ex. P/5) the tangi was seized from his house vide seizure memo

Ex. P/6. I signed both the documents. Police arrested the appellant vide arrest memo Ex. P/7 and seized his shirt vide seizure memo Ex. P/8 and I

signed both the documents.

Dr. R.K.Verma (PW-5) performed autopsy of the deceased. He was posted as medical officer on 17.09.2006 at CHC Budhar. He deposed

that I performed autopsy of the deceased and notice the following injuries on his person.

(i) Incised wound of size 5""x1 1/2"" on the right side of occipital region of skull behind right ear. Bone is cut.

(ii) Incised would of 1 1/2""x 1/4"" x bonedeep of skull on left side of parieto-occipital region of skull above left ear.

(iii) Lacerated wound of 1/2"" x 1/2"" x bonedeep on skull over left eyebrow of forehead.

(iv) Bruise of 1 1/2"" x 1"" on left parietal region of skull on dissection.

(v) Bruise of 2 1/2"" x 1"" on lower end of left thigh, outerly swelling on dissection.

(vi) Incised wound of 1 1/2"" x 1/2"" x bonedeep on lower 1/3rd of left thigh.

(vii) Abrasion of 1"" x 1/2"" on muscle.

(viii) Bruise on 1 1/2"" x 1/2"" on left arm anteriorly.

(ix) Abrasion 1/2"" x 1/8"" on mid-part of left side of forearm anteriorly.

(x) Abrasion 2 1/2"" x 1/8"" on left forearm antero-medially on dissection.

He further deposed that injuries No. 1, 2 and 6 were caused by sharp cutting object and rest of the injuries were caused by hard and blunt

object. The brain matter had come out. Deceased died due to the injuries suffered by him. Injuries were antemortem in nature.

Darshan Singh (PW-7) is the Patwari. He deposed that I prepared a spot map Ex. P/12 and signed the same.

D.P.Tiwari (PW-6) Investigation Officer deposed that I was posted as Station House Officer Incharge at Police Station, Jaitpur. On

16.09.2006 Babulal (PW-4) orally informed about the incident thereafter, report was lodged which is (Ex. P/11) and I signed the same. The

report was lodged in the morning. Thereafter, I reached on the spot and prepared a spot map which is Ex. P/4 and registered merg Ex. P/10 and I

signed the same. On the same date, I recorded statements of Ramprasad Kewat, Lallan Sahu, Babulal Sahu, Smt. Babiya Bai Sahu, Govind

Prasad Kewat and Chandrabhan Singh. I also seized plain and red earth vide seizure memo (Ex. P/3). On the memorandum of appellant (Ex. P/5),

tangi was seized from his house vide seizure memo Ex. P/6. I signed both the documents. From the appellant, his shirt in which their were blood

spot was seized vide seizure memo Ex. P/8. Appellant was arrested. The seized articles were sent to FSL for chemical examination.

Appellant produced two witnesses in his support. Munshi (DW-1) deposed that he did not see the incident and did not notice as to who had

killed the deceased. Babulal (DW-2) S/o Vishali deposed that three persons whose faces were covered came on the spot and had killed the

deceased.

Appellant pleaded in his statement that Babiya Bai (wife of the deceased) was pregnant and she had a illicit relationship with someone else.

Thereafter, she had an abortion. Therefore, she had falsely implicated me and my son.

Babiya Bai (PW-1) is the eye-witness. She is the natural witness because she was present on the spot. Although, she is the wife of the

deceased, the appellant is also her father-in-law. Normally, it is not possible that someone will falsely implicate his/her father-in-law. The evidence

of Babiya Bai (PW-1) has been corroborated by Baban Sahu (PW-2) and Babulal (PW-4). She immediately went to Baban Sahu (PW-2) and

Babulal (PW- 4) and narrated the incident to them. They are also relatives of the deceased. They reached on the spot. Their evidence is quite

natural. From the possession of the appellant, a tangi was seized. Seizure has been proved by independent witness Baban Sahu (PW-2) and

D.P.Tiwari (PW-6).

The report (Ex. P/11 and P/14) was lodged on the next day of the incident at around 7:30 am in the morning. The incident is of 6:30 pm in the

evening of 15.09.2006. There is some delay in lodging the report, however, it is mentioned that there was an intervening night hence, the report

was lodged in the next morning. The distance of the police station is near about 30 kms. In our opinion, there is no substantial delay in lodging the

report. In the report, it is mentioned that the appellant had killed the deceased. The appellant was arrested on the next day.

The Hon''ble Apex Court in case of Deny Bora Vs. State of Assam [(2014) 14 SCC 22] has held that the conviction of sole eye-witness can

be basis if the evidence of witness is reliable. The Apex Court has held as under:

As we find, the conviction wholly rests on the sole testimony of PW-14. It is well settled in law that conviction can be based on the testimony of a

singular witness. It has been held in Sunil Kumar v. State (Govt. of NCT of Delhi)[(2003) 11 SCC 367] that ''9.........as a general rule the court

can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole

testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts about the testimony the courts

will insist on corroboration.

The same principle has been reiterated in Namdeo v. State of Maharashtra [(2007) 14 SCC 150] by stating that it is open to a competent court to

fully and completely rely on a solitary witness and record conviction, if the quality of the witness makes the testimony acceptable.

[See also Shankarlal Vs. State of Rajasthan, (2004) 10 SCC 632)

The counsel for the appellant has further submitted that the conduct of Babiya Bai (PW-1) is unrealistic. He relied on the judgment of the

Hon''ble Supreme Court in the case of Jivan Lal & Ors. Vs. State of MP [(1997) 9 SCC 119].

We are not inclined to accept the argument of the counsel for the appellant. Babiya Bai (PW-1) is a lady and wife of the deceased. The

distance of police station from her place is about 30 kms. It is a natural conduct that she firstly informed her relatives about the incident who were

residing in the same village. Apart from this, the appellant is the father of the deceased. He had killed his son. There is no possibility that a

daughter-in-law will falsely implicate her father-in-law.

The next question is that whether the offence would fall under Section 304 Part I of IPC.

In the present case, the appellant had inflicted repeated blows by a tangi, a sharp edged weapon. One blow was on the vital part i.e. neck of

the deceased. The injuries were of serious nature. The deceased died on the spot. The appellant was armed with tangi. There is no evidence that

there was any provocation to the appellant. Hence, in our opinion, the act of appellant would not cover under the Exception 1 of Section 300 of

IPC.

In view of the evidence on record as discussed above, in our considered opinion, the Trial Court has rightly held the appellant guilty for

committing offence under Section 302 of the Indian Penal Code and awarded proper sentence. We do not find any merit in this appeal. It is

hereby dismissed.

Copy of this judgment be sent to the Court below for information and compliance along with its record.