Bhaltu @ Thakurdas & Two Others vs State Of Madhya Pradesh

This appeal has been preferred assailing the judgment dated 03/03/2008 passed by the Special Judge, Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act, Chhatarpur, in Special Case No.22/2006 whereby the appellant no.1 Bhaltu @ Thakurdas has been convicted under

section 302 of IPC and appellant no.2 Abhulli @ Omprakash and appellant no.3 Tiriya @ Bhawanideen have been convicted under section 302 read

with section 34 of IPC for committing murder of Ram Kapoor and sentenced each of them to undergo R.I. for life imprisonment along with fine of

Rs.1000/- with default stipulations of 6 months further R.I.

In this case there is no dispute that the appellants are real brother and Ram Bai (PW-1) is mother of the deceased and Anil Kumar (PW-2) is

son of the deceased, who was member of scheduled caste community. Â

The brief facts giving rising to this appeal are that the appellants forcibly took possession of the land, which was allotted to deceased Ram Kapoor

about which a report was made to the police and criminal case was pending. On account of this enmity on 06/02/2006 at about 6.10 AM when the

deceased was sitting near about the door of Munna with other person including his son Anil Kumar (PW-2). Appellant no.1 Bhaltu armed with axe

and appellant no.2 Abhulli and appellant no.3 Tiriya armed with lathis came there and told the deceased that he had filed a case against them, hence

they would look to him today. Appellant no.1 dealt with blow of axe on the right side of neck of deceased Ram Kapoor and when he tried to save him,

all appellants/accused persons surrounded him in front of the house of one Ghanshyam and he fell down then all accused persons assaulted him and

caused several injuries on his person when Anil Kumar (PW-2) tried to save his father and his mother Ram Bai (PW-1) has also reached the spot

along with one Bala Ahirwar (PW-4) and tried to save the deceased then appellants also assaulted them and thereafter fled away from the spot.Â

On getting information about the incident, the police came to the spot and mother of the deceased Ram Bai (PW-1) lodged Dehati Nalishi Ex.P-1 and

injured Ram Kapoor was taken to the hospital in police jeep but in the way he scummed on account of injuries. Then mother of the deceased lodged

FIR and police registered Crime No.32/2006 under sections 302, 323, 34 of IPC against the appellants. During the investigation, the autopsy was

conducted on the body of the deceased and cause of death was injuries sustained to him. The appellants were arrested on 12/02/2006 and on their

instance weapons were recovered and sent for FSL but the presence of blood stains on the weapons were not confirmed. After completion of other

formalities of the investigation, the charge sheet was filed before the Judicial Magistrate First Class, Naugaon, who committed the case to Special

Judge, Chhatarpur, who tried the case.

The learned Trial court framed charge against the appellants under sections 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of

Atrocities) Act and section 323 of IPC in two counts for causing injuries to Ram Bai (PW-1) and Baladeen Ahirwar (PW-4) and under section 302 of

IPC for committing murder of Ram Kapoor and they abjured their guilt and claimed to be tried. Their defence are that they are innocent and appellant

no.1 Bhaltu was in another village at the time of incident and appellant no.2 Abhulli and appellant no.3 Tiriya were busy in repair of their house. In

defence oral evidence has been adduced.Â

The learned trial court after trial acquitted the appellants for the charge under section 3(2)(v) of Scheduled Castes and Scheduled Tribes

(Prevention of Atrocities) Act and section 323 of IPC in two counts and convicted and sentenced the appellants as mentioned earlier. The findings of

the learned trial court mainly based on the evidence of Anil Kumar (PW-2) and Smt. Ram Bai (PW-1), which got corroboration with the testimony of

Binda Ahirwar (PW-3) and Baladeen Ahirwar (PW-4).Â

In this appeal on behalf of the appellants, the findings of the learned trial court has been assailed on the ground that the statements of Anil Kumar

(PW-2) and Smt. Ram Bai (PW-1) are not reliable. They are interested witnesses and their testimony are contradictory to each other and other eye

witnesses Binda Ahirwar (PW-3) and Baladeen Ahirwar (PW-4) have been declared hostile. Hence their testimony can’t be considered for the

corroboration of other witnesses and involvement of appellant no.2 Abhulli and appellant no.3 Tiriya in the incident has not been established beyond

the reasonable doubt. Smt. Ram Bai (PW-1) has claimed to be injured eye witness but prima facie it appears that she reached the spot when the

incident was over. Dr. J.P. Tiwari (PW-11) has stated that the injuries found on the person of witness may be caused on account of fall. Prosecution

has failed to establish the weapons of the appellants/accused persons were the same weapon, which were used in the incident as FSL report (Ex.P-

33) is negative. On the weapon no blood stain was found. Appellants have been implicated in the case only on the basis of their enmity with the

deceased and evidence adduced in the defence is not considered in right perspective. Thus the conviction and sentence of the appellants be set aside

and they be acquitted.

Learned G.A has supported the findings of the learned trial court and opposed the aforesaid contentions of the learned counsel for the appellant

stating that the findings of the learned trial court are based on statement of eye witness and corroborated by medical evidence. Hence no interference

is required in the findings of the trial court and prayed for rejection of this appeal.

Having considered the contention of learned counsel forthe parties and on perusal of the record, in this case it is not controversial that the death of

Ram Kapoor was taken place on account of injuries caused to him on 06/02/2006.

Dr. J.P Tiwari (PW-11) has stated that on 06/02/2006 at Community Health Centre Naugaon, he conducted autopsy on the body of deceased Ram

Kapoor and prepared post mortem report Ex.P-28 and found following injuries on the person of the deceased:-

(i) One Incised wound at lower lateral side of scalp occipital part near upper neck 6.5†X 2.5†X skin muscle bone deep. Arteries and veins cut.

Brain matter come out;

(ii) One incised wound right parietal part scalp 6.5â€​ X 2.5â€​ skin muscle. Arteries, veins and bone cut. Brain matter come out;

(iii) One incised wound right upper neck 5â€​ X2.5â€​. Skin muscle, arteries and veins cut;

(iv) One Incised wound right side chest 3â€​X 1/4X skin muscle deep;

(v) One Incised wound right side occipito parietal part size 2.5â€​ X 0.5â€​X skin muscle deep;

(vi) One contusion right side chin 2.5â€​X 0.5â€​;

(vii) One contusion each right and left elbow ½ â€​X 1/2â€​;

(viii) One contusion each right and left scapula region 1/2â€​X 1/2â€​;

He stated that the aforesaid injuries were caused by hard and sharp object and the death was caused due to injuries on vital organ within 6 hours

before examination and the nature of death was homicidal and the injuries were sufficient to cause death in the ordinary course of nature.

The aforesaid medical evidence has remained unimpeachable during the cross examination and establish the fact that the nature of the death of

deceased Ram Kapoor was homicidal.

Further it is our considered view the prosecutionevidence against appellant no.1 Bhaltu is reliable and establish his involvement in the incident

beyond the reasonable doubt. So far appellant no.2 Abhulli and appellant no.3 Tiriya are concerned their involvement in the incident is doubtful. Anil

Kumar (PW-2) is son of the deceased and he was sitting with the deceased at the time of the incident. He has categorically stated that appellant no.1

Bhaltu armed with axe and appellant no.2 Abhulli and appellant no.3 Tiriya armed with lathis came to the spot. Appellant no.1 Bhaltu told his father

that why did he filed police case against him and he attacked on right side of his neck with the axe and when his father rushed to the door of house of

one Munna, all the accused persons surrounded his father and assaulted him with axe and lathi and his grand mother came to rescue. The

appellants/accused persons ran away from the spot. Ram Bai (PW-1) has also stated that she at the time of incident was coming back after finishing

work of invitation to the village people for attending “Mundan Ceremony†and saw the appellants/accused persons assaulting his son Ram

Kapoor. Appellant no.1 Bhaltu armed with axe and appellant no.2 Abhulli and appellant no.3 Tiriya armed with lathis and when she and one

Baladeen (PW-4) tried to rescue, they were also assaulted and after coming of the police, injured Ram Kapoor was taken to the hospital but he died in

the way. Then she lodged FIR (Ex.P-1). Binda Ahirwar (PW-3) and Baladeen Ahirwar (PW-4) has been declared hostile by the prosecution but they

have categorically stated that at the time of incident, they were present and appellant no.1 Bhaltu assaulted the deceased with axe and at the time of

incident appellant no.2 Abhulli and appellant no.3 Tiriya were not present and did not take part in the incident.

Ram Bai (PW-1) and Baladeen (PW-4) have claimed to be eye witnesses of the incident and as per prosecution story they were also injured at

the time of the incident, but Anil Kumar (PW-2) has stated that when his grand mother tried to save his father the appellants fled away and he did not

disclose that at the time of the incident Ram Bai (PW-1) and Baladeen (PW-4) were also beaten . There is no medical evidence with regard to injury

sustained to Baladeen (PW-4) and witness himself has not stated that he was assaulted by the appellants and sustained injury. However Ram Bai

(PW-1) has stated that she was assaulted by the appellants and sustained injuries and Dr. J.P Tiwari (PW-11) has also stated that on 08/02/2006 he

examined Ram Bai (PW-1) and found two contusion at parietal region and right buttock and complaint of pain at right hand and back and all the

injuries was caused before between 48 to 72 hours and prepared MLC Report (Ex.P-20A) and opined that the aforesaid injuries may be caused on

falling as all injuries were on one side. Ram Bai (PW-1) has stated that as soon as she heard that her son is being beaten, she rushed towards the

place of incident. She is 75 years old lady, hence it is possible that she may fall down and sustain aforesaid injuries. Therefore beyond the reasonable

doubt it can’t be said that she also received injuries in the incident caused by the appellants. Learned trial court has also exonerated the appellants

for the charge of causing injuries to the aforesaid witness.

Dr. J.P Tiwari (PW-11) has admitted in his cross- examination that the injuries no.6, 7 and 8 of the deceased are superficial and may be caused on

account of falling of him. In other words, it can’t be definitely said that the aforesaid injuries no.6, 7 and 8 were caused by the appellant no.2 and

appellant no.3 by lathi. Other injuries of the deceased are incised wound, which may be caused by only sharp and hard object and the same may be

caused by the appellant no.1 with the axe.

The evidence of Binda Ahirwar (PW-3) and Baladeen Ahirwar (PW-4) despite of declaring them hostile by the prosecution can be considered to

the extent it supported and corroborated by other material or evidence on record. So far as their statement are concerned with regard to causing injury

by appellant no.1 Bhaltu by lathi or bett is not corroborated by the medical evidence while the evidence of Anil Kumar (PW-2) and Ram Bai (PW-1)

got corroboration from the medical evidence. Hence the statements of Anil Kumar (PW-2) and Ram Bai (PW-1) so far they are related to the

appellant no.1 Bhaltu are reliable and established the fact that he assaulted the deceased with the axe and caused the injuries led to his death. So

far as appellant no.2 Abhulli and appellant no.3 Tiriya are concerned about them their involvement in the incident is doubtful as indicated above and

against them, it can’t be said that prosecution has succeeded to establish the fact beyond the reasonable doubt that they are also assailant with the

appellant no.1 Bhaltu and share the common intention with the main accused/appellant no.1 Bhaltu in committing death of the deceased.

So far the evidence adduced by the appellants in defence are concerned, Mannulal (DW-1) has stated that on the date of the incident appellant

no.2 Abhulli and appellant no.3 Tiriya were working with him different place but he has not stated that whole day at the particular time when the

incident taken place they were with him. However on the basis of prosecution evidence presence and participation of appellant no.2 Abhulli and

appellant no.3 Tiriya is doubtful. Mallu @ Mithlesh (DW-2) has stated that an unknown person beaten the deceased with the axe but he admitted in

the cross examination that he did not disclose the fact to the police when police came on spot. In such circumstance, the witness is prima facie not

reliable. Badri Prasad Yadav (DW-3) has stated that on the date of the incident at 11 AM, appellant no.1Â Bhaltu was working with him in his

khaliyan but during the statement of the prosecution eye witness, this suggestion has not been given that the appellant no.1 was working with witnesss

Badri Prasad in the khaliyan at the time of incident. In such circumstance, the statement has been given after thought and not reliable. Rakesh

(DW-4) has stated that at the time of the incident the son of deceased Anil (PW-2) was with him in the school but no suggestion has been given to

Anil (PW-2) that with him this witness was studying in the school and on the date of the incident he was with him. The presence of Anil Kumar (PW-

2) in the school could have been proved by proving record of his attendance and also by the record of attendance of this witness on the relevant

date without such evidence the testimony of Anil (PW-2) which is also supported by other witnesses can’t be discarded or doubted with regard to

his presence at the time of the incident. Accordingly the evidence adduced by the appellants in defence is insignificant. Therefore, we came to the

conclusion that the prosecution has proved the fact beyond the reasonable doubt that the appellant no.1 Bhaltu has caused the aforesaid injuries to the

victim which led to his death.

Dr. J.P Tiwari (PW-11) have categorically stated that the injuries sustained to the deceased was sufficient in ordinary course of nature to cause

death of the deceased and the appellant no.1 Bhaltu has caused the aforesaid four injuries by using weapon axe on vital part head and neck of the

deceased. Hence his act came into purview of commission of the murder of the deceased.

In view of the aforesaid discussion, we came to the conclusion that the prosecution has failed to prove the charges against the appellant no.2

Abhulli and appellant no.3 Tiriya, hence their conviction and sentences under section 302 read with section 34 of IPC are set aside. Further the

conviction and sentence of the appellant no.1 Bhaltu for commission of the offence under section 302 of IPC is affirmed.

From the record it is evident that appellant no.1 Bhaltu is in jail and suffering the jail sentence and appellant no.2 Abhulli and appellant no.3 Tiriya

are on bail. Their bail bonds be discharged. Accordingly, this appeal is partly allowed.

We also express our words of gratitude for the assistance rendered by Amicus Curiae.

A copy of this judgment be sent to the concerned trial court and jail authorities for information and necessary action.

Certified copy as per rules.