Brajlal vs State of Madhya Pradesh

Rakesh Saksena, J.—Appellant Brajlal has filed this appeal against the judgment dated 17.8.2001 passed by Second Additional Sessions Judge, Balaghat in Sessions Trial No. 56/2000, convicting the appellant u/s 302/34 of the Indian Penal Code and sentencing him to imprisonment for life with fine of Rs. 2000/-. In default of payment of fine, further rigorous imprisonment for six months. At the outset, it would be appropriate to mention that in Sessions Trial No. 56/2000, two accused persons viz. Brajlal and Maniram were tried. Since, appellant Brajlal absconded, trial of accused Maniram was completed and by judgment dated 11.7.2000, Maniram was convicted. Against his conviction, Maniram filed Criminal Appeal No. 2583/2000, which is pending. After arrest of Brajlal, evidence of Radhelal, Omkar, Ganesh and Dilip Kumar were recorded afresh as PW10, PW11, PW12 and PW13, but, since, learned counsel for Brajlal did not opt to cross examine witnesses viz. Komal Prasad (PW4), Dinesh Kumar (PW5), Chhaganlal (PW6), Dr. R.K. Chaturvedi (PW7) and Rajkumar (PW8) afresh, their statements were accepted in evidence against Brajlal. After completion of trial against Brajlal, the impugned judgment was passed on 17.8.2001.

The prosecution case in brief is that on the occasion of Diwali after ''Goverdhan Puja'' on 8.11.1999, Shyamlal went at the house of his cousin Ganesh Prasad and told to him that accused persons were beating him. In the meanwhile, accused Maniram and Brajlal reached there and after catching, made him to fall on stone and assaulted him with fists and kicks and also with sticks. As a result of assault, Shyamlal suffered injuries on his head, ear and shoulders. Ganesh Prasad went to the house of Radhelal, brother of Shyamlal and called him. Radhelal carried Shyamlal to his house and made arrangements to take him to a doctor, but on way Shyamlal died. Radhelal gave intimation of the occurrence at police out post Dora, whereupon merge intimation report Ex. P/2 and first information report Ex. P/3 were recorded.

Police went at the spot, drew spot map and conducted inquest proceedings vide memorandum Ex. P/9. The dead body of Shyamlal was sent to Primary Health Centre, Baihar, where Dr. R.K. Chaturvedi (PW7) conducted postmortem examination and vide his report Ex. P/12 found six injuries on the body of deceased. After requisite investigation, charge sheet was filed and the case was committed for trial.

On charges being framed, accused abjured his guilt and pleaded false implication due to enmity. Though, no specific defence plea was taken, but it was suggested to eye witness that deceased contracted injuries on being dashed by a cow or by a fall on the stone under intoxication.

Prosecution, to substantiate the charge against accused persons mainly relied on the evidence of Ganesh (PW12), Dinesh Kumar (PW5), Chhaganlal (PW6) and Radhelal (PW10). Chhaganlal (PW6) and Radhelal (PW10) did not support the prosecution case; they were declared hostile. Finding the evidence of Ganesh (PW12) corroborated by the evidence of Dinesh and Dr. R.K. Chaturvedi (PW7), learned trial Judge held the appellant guilty, convicted and sentenced him as mentioned above. Aggrieved by his conviction, appellant has filed the present appeal.

Learned counsel for the appellant submitted that the trial Judge mis-appreciated the evidence of eye witness Ganesh. His evidence was not reliable in the facts and circumstances of the case since he happened to be a cousin of deceased. In the alternative, learned counsel for the appellant submitted that the conviction of appellant u/s 302/34 of the Indian Penal Code was not justified since there appeared no intention on the part of appellant to commit murder of the deceased. Accused persons and the deceased were under intoxication and they had indulged in scuffle and quarrel before the appellant dealt lathi blows to him. In these circumstances, at the most appellant could be punished only u/s 304-II of the Indian Penal Code. He is in jail since 25.1.2001. On the other hand, learned counsel for the State submitted that the evidence of eye witness Ganesh (PW12) was reliable and stood corroborated by other evidence on record. In view of the nature of injuries found on the body of deceased, the conviction of appellant u/s 302 of the Indian Penal Code was justified.

We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully.

It is not disputed that deceased suffered injuries which resulted into his death. From the evidence of Radhelal (PW10), Dinesh (PW5) and Ganesh (PW12), it stood established that Shyamlal suffered injuries and died. Radhelal (PW10) stated that when he was taking Shyamlal to hospital, he died on way, then he went to police out post, Dora and lodged merg report Ex. P/2 and first information report Ex. P/3. Police then sent the dead body for postmortem examination. Dr. R.K. Chaturvedi (PW7), Medical Officer of Primary Health Centre, Baihar stated that on 10.11.1999 he conducted postmortem examination of the body of Shyamlal and found following injuries:

(i) Contusion on right shoulder joint extending up to back scapula on right side 6" x 4" in size irregular. Contusion extending up to 8th rib on frontal side.

(ii) Contusion on left occipital region behind ear 1" x 1" in size.

(iii) Contusion on left side of chest 4" x 4" in size reddish blue.

(iv) Abrasion on left forehead 1/2" x 1/2" in size with clotted blood.

(v) Blood oozing out from both nostrils.

On internal examination:-

(i) Contusion on left and right chest with fracture of 2nd and 8th ribs right side and clotted blood.

(ii) Liver, spleen and kidney ruptured on right side.

(iii) Fracture of right shoulder clavicle bone.

In his opinion, the injuries were anti mortem in nature. They were caused by some hard and blunt object. The cause of death was shock due to injury to vital organ i.e. rupture of right liver, spleen, kidney, fracture of right shoulder bone and also by excessive bleeding. It is thus established that deceased met with a homicidal death.

Now the question is whether appellant was responsible for causing death of deceased. Learned counsel for the appellant submitted that the evidence of sole eye witness Ganesh, who happened to be the cousin of deceased was not reliable since it was not corroborated by the real brother of deceased Radhelal (PW10), who had lodged the first information report Ex. P/3. It is true that eye witness Ganesh (PW12) is cousin of deceased, and Radhelal (PW10) who is real brother of deceased, has not supported his version, but merely because of his being relative of deceased, testimony of Ganesh cannot be discarded altogether if it is found otherwise reliable. It is all the more important that Ganesh spoke against the appellant even when real brother of deceased did not support the prosecution case. Ganesh categorically stated that at about 4 O'' clock in the evening deceased came to his house and told that Brajlal and Maniram were bent upon beating him. In the mean time, both of them reached there and after catching him started beating him by hands and also with sticks. Shyamlal suffered injuries and became unconscious. He called Radhelal and informed him about the fact of Shyamlal been assaulted by the accused persons. Shyamlal was taken to doctor, but later on he came to know that Shyamlal died. In cross examination, Ganesh (PW12) admitted that on the day of occurrence deceased and both the accused persons had consumed liquor, but he firmly denied that Shyamlal suffered injuries by the push of cows running after ''Goverdhan Puja''. He also denied that Shyamlal suffered injuries by fall on stone under intoxication. He, however, admitted that beating of Shyamlal continued for 10-12 minutes, in the course of which, accused persons slapped and grappled with him. In grappling, they fell on the stone also. He informed the incident to Radhelal and also to other village people.

Radhelal (PW10), though stated that on being called by Ganesh he went to his house and saw Shyamlal lying injured, but he denied that Ganesh told to him anything as to who assaulted Shyamlal. This witness, however, admitted that he lodged merg intimation Ex. P/2 and first information report Ex. P/3.

Dinesh (PW5) stated that in the evening after ''Goverdhan Puja'' when he went back to his house, he saw Shyamlal lying unconscious in his ''Badi''. His brother Ganesh told to him that accused Maniram and Brajlal assaulted him with lathis. Shyamlal could not speak anything. When they were taking him to doctor, on way he died.

On a close scrutiny of the evidence of Ganesh (PW12), his evidence seems consistent and reliable. Nothing had been suggested to him that he had animus against the accused persons. His evidence stood corroborated by the evidence of Dinesh (PW5) and the medical evidence of Dr. R.K. Chaturvedi (PW7), who found injuries on the body of deceased caused by hard and blunt weapons. Merely, because Radhelal (PW10) did not support the version of Ganesh, it cannot be held that the evidence of Ganesh was not reliable. We find that trial Court committed no error in holding that it was established beyond doubt that appellant assaulted deceased with stick, as a result of which, he died.

Learned counsel for the appellant contended that the conviction of appellant u/s 302/34 of the Indian Penal Code was not justified, since it was not proved beyond doubt that appellant intended to commit murder of deceased. On perusal of evidence of Ganesh (PW12), it is revealed that at the time of occurrence deceased as well as accused persons were under intoxication. He did not say that there was any past enmity between the appellant and the deceased. In para-6 of his statement, he stated that initially accused persons put their sticks down and assaulted deceased with hands and legs, but later on they picked up sticks also. In the mutual ''Marpeet'' deceased also slapped accused persons and they fell on the ground while grappling at the place where a stone used for taking bath was kept. From the postmortem examination report Ex. P/12 given by Dr. R.K. Chaturvedi (PW7), it appears that 2nd and 8th ribs of the right side of deceased were fractured and his spleen, liver and kidney were ruptured. Though, Dr. Chaturvedi did not say, but it appears quite possible that the internal organs of the deceased might have got ruptured by the broken ribs. In these circumstances, in our opinion, it could not be held established beyond doubt that appellant assaulted deceased with the intention of committing his murder, but, since he wielded a stick and caused injuries with it on the vital part of the body of deceased, it can be held that he knew that by his act he was likely to cause his death or to cause such bodily injury as was likely to cause his death, making him liable to be punished u/s 304-II of the Indian Penal Code.

In view of the above, the conviction of appellant u/s 302/34 of the Indian Penal Code is modified to one u/s 304-II of the Indian Penal Code and he is sentenced to rigorous imprisonment for a period of seven years. Sentence of fine is set aside. Appellant, who is said to be in jail since 25.1.2001, be released forthwith if not required in any other case. Appeal partly allowed.