Chhitu & Ors vs State Of Madhya Pradesh

The appellants have preferred this criminal appeal  under

section 374 of Cr.P.C against the judgment dated 11/07/1998 passed by

Additional Session Judge, Manawar, District- Dhar in Session Trial no. 83/1997, whereby the appelalnts have been convicted for the offence

punishable under sections 304(II) and 323/34 of the IPC and sentenced to undergo 3 years R.I and to pay fine of Rs.500/- and  Rs.200/-

respectively with usual default stipulation.

2 Brief facts of the case are that on 01/01/1997, at about 3:00 p.m. Co-accused persons- Chhitu, Ambaram, Bheru and Limji came infront of the

house of the complaint-Madiya and hurled filthy languages, when complainant protested them, then accused-Ambaram caused piercing injuries by

arrow on the thumb of his right hand and left hand wrist of Sardar, the brother of Madiya. When Khadag Singh came there to rescue them then

accused-Chhitu and Bheru have caused injuries to Khadak Singh, Munni Bai and Haku Bai by pelting stones, due to which they received injuries on

their legs and head. Accused-Limji gave a blow from the blunt side of the axe on the head of Dhan Singh . Thereafter, all the accused persons fled

away from the spot after threatening them.

The matter was reported to the Police-Station-Gandhwani,

District-Dhar and FIR bearing Crime No. 1/1997Â for the offence under Sections 324, 294 and 506/34 of the IPC was registered against the

appellants. Injured persons were sent to the hospital for examination of their injuries and treatment. During the course of treatment injured-Dhan Singh

died on 06/01/1997. After receiving the information of death of injured-Dhan Singh, Police prepared a Lash Panchanama and his dead body was sent

for post mortem. Police also added offence under Sections 302/34 and 323 of the IPC against the accused persons.

During investigation Police prepared spot map (Ex.P/15);

collected simple and blood stained soil from the place of incident. The statement of the witnesses were recorded. Accused persons were arrested and

one arrow was recovered from the accused-Ambaram. Police also seized the clothes of the injured persons. After completion of investigation charge-

sheete has been filed before the Court of Judicial Magistrate First Class, Manawar, who committed the case to the Sessions Court, which is ultimately

transferred to the Court of Additional Sessions Judge, Manawar District-Dhar for trial.

The appellants have denied the charges and took a plea that the complainant alongwith other companions come to their house equipped with

deadly weapons and assaulted them due to which they received injuries. In their defence they have examined Kalniya (DW 1), Bhagan (DW 2),

Tidiya (DW 3) and Shardabai (DW 4). After considering the evidence adduced by the prosecution and material available on record, learned

Additional Sessions Judge convicted and sentenced all the appellants as mentioned herein above.

During the pendency of this appeal, appellants- Chhitu and

Limji have been died, therefore, this appeal stands dismissed as abated with respect to appellants-Chhitu and Limji.

I have heard learned counsel for the parties and length and

perused the record.

The prosecution examined 14 witnesses including complainant-

Madiya (PW 10), Injured witnesses-Haku Bai (PW 6), Munnibai (PW 7), Anokhilal (PW 9), Khadak Singh (PW 11) and Sardar (PW 12); Seizure

witnesses Madan (PW 1) and Bilam (PW 8); Dr. P.C. Jain (PW 2), Dr. V.K.

Bhandari (PW 4), Dr. Sikdar Singh (PW 5); Patwari-Niyamat Khan (PW 3),

SHO-Rajendra Singh (PW 13) and Investigating Officer-K.C. Pathak (PW 14). Out of which Madan (PW 1) and Bilam (PW 8) have not supported

the prosecution case and have turned hostile.

According to the complainant-Madiya (PW 10), the incident occured 12 months back at about 2:00 p.m., when he was at home alongwith his family

members. The same time accused persons came to his house armed with axe, arrow, phalia and stick with intend to occupy his land. They started

abused them and fetch his father-Dhan Singh from the house, thereafter, accused-Limji gave a blow from the blunt side of the axe to his father-

Dhan Singh, due to which he sustained injuries on his head . Accused-Chhitu inflicted injury to him by stick, Bheru Singh gave him a phalia blow.

Accused- Ambaram has caused the injuries to complainantMadiya and Sardar by arrows. The accused persons have also caused injuries to

Khadak Singh, Hakubai and Munni Bai by pelting stones. Similar lines are narrated by all the injured persons, therefore, same does not deserves to be

reiterated.

Madiya (PW 10) has deposed that he lodged the FIR at PoliceStation-Gandhwani and after that police reached there and prepared spot map (Ex.

P/15). Police sent the injured persons to the Manawar Hospital for their medical examination and treatment. From Manawar Hospital, his father-Dhan

Singh was referred to District-Hospital Dhar for further treatment, where he has died during the treatment.

Now it has to be considered as to whether death of the Dhan Singh was Homicidal in nature or not. In this regard the evidence given by Dr. P.C.

Jain (PW 2) is important, who performed the postmortem of the dead body of the deceased and gave his report (Ex. P/3). He found the following

injuries to the deceased.

  1. Strech wound measuring 4 c.m., on right side of the forehead.

Contusion of 6 X 2 c.m., on mid way of left temporal region."" 12. On opening of the body he found that left temporal bone of the deceased was

broken 100 CC blood was present on the crinial cavity and stomach. According to the Dr. P.C. Jain, deceased-Dhan Singh died due to head injury

and the same was sufficient to cause his death. He also opined that the death of the deceased was homicidal in nature. Opinion given by the Dr.

Jain, cannot be discarded. Such injuries could not be caused in any accident and those could not be self inflicted and therefore, the death of

the deceased was neither accidental nor suicidal, hence, it was homicidal in nature.

Learned counsel for the appellants submits that the weapons allegedly used for inflicting the injuries to Dhan Singh by accused-Limji did not tally

with the ocular evidence , therefore, the injuries caused to the deceased cannot be attributed to the appellants. He also drawn attention of this Court in

the cross-examination of the Dr. V.K. Bhandari (PW 4), in which he admitted the injuries sustained by the deceased could be caused due to fell

down on the ground.

Learned Public Prosecutor vehemently opposed the arguments advanced by the learned counsel for the appellants and submits that 4 persons

came to the spot armed with deadly weapons with a common intention to kill Dhan Singh. If there are small contradicitions in the statements of the

prosecution witnesses then same deserves to be ignored.

The injuries in which witnesses have to be relied upon and even in case there are conflicts between ocular evidence and medical evidence, then ocular

evidence has to be preferred.

In the context of the aforesaid submission, it is found that there is consistency of the prosecution witnesses regarding assault given by the

appellants. It is clear that only one blow was given by the appellant-Limji on the head of the deceased-Dhan Singh. According to MLC report (Ex.

P/13)Â and postmortem report, accused-Limji has caused lacerated wound on the left parietal region of the deceased. Although, some minor

contradictions has come in the statement of the prosecution witnesses but such minor contradictions were not such material due to which whole

prosecution case can be thrown out.

In the case of Solanki Chimanbhai Ukabhai v. State of

Gujrat the Hon'ble apex Court observed as under: (SCC p. 180, para 13)

Ordinarily, the value of medical evidence

is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make

of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses.

Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the

manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the ground of alleged inconsistency between it and the

medical evidence.

Similar view has been taken in Mani Ram v. State of U.P. and in

the State of U.P. v. Hari Chand.

Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect

that though the ocular testimony of a witess has greater evidentiary value vis-a-vis medical evidence, when medical evidence makes the ocular

testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far

that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.

In the instant case has referred herein above 4 assailants, injured 5 persons. Thus witnesses cannot be able to state as from which part of the axe

limji gave blow on the head of the Dhan Singh. In such a fact and situation discrepancy in medical evidence and ocular evidence is bound to

occured. However, it cannot tilt the balance in favour of the appellants.

In the instant case the present appellants have not caused any injury to the deceased-Dhan Singh. Although, the appellants alongwith

appellant/accused -Limji equipped with deadly weapons came to the house of Madiya and they have assaulted the injured peresons and during this

period appellant/accused Limji gave a blow from the blunt side of the axe on the head of the deceased-Dhan

Singh, due to which Dhan Singh died. Undoubtedly, ingredients of the Section 34 of the IPC is attracted because the accussed/appellants had acted in

furtherance of their common intention, therefore, they are also responsible for not only their acts but also the act of the coaccused-Limji. In the case

of Virrendra Singh v. State of M.P.,

2010(8) SCC 47 the Hon'ble apex Court has observed as under:-

Section 34 intends to meet a case in which it is not possible to distinguish between the criminal acts of the individual members of a party, who act in

furtherance of the common intention of all the members of the party or it is not possible to prove exactly what part was played by each of them. In

the absence of common intention, the criminal liability of a member of the group might differ according to the mode of the individual's participation in

the act. Common intention means that each member of the group is aware of the act to be committed.

The incident has taken place on 01/01/1997 at about 3 p.m., and the FIR was lodged within 3 hrs and 40 minutes of the incident, where as the

place of occurence was 15 Kms., away from the Police StationGandhwani. The complainant also got injured alongwith 5 other injured persons,

therefore, he had to make arrangement for the vehicle etc. , so that the injured persons can be taken to the police station and hospital, hence, the FIR

was lodged within a reasonable time period, which confirms the evidence given by these eye witnesses. MLC report and postmortem report were

respectively proved by Dr. Sikdar Singh (PW 5) and Dr. P.C. Jain (P.W. 2) also confirms the version of the eye witnesses. The injuries was found on

the head of the deceased have described by all the eye witnesses. Thus, the evidence of the eye witnesses is believable. It is proved beyond

reasonable doubts that the appellants went to the house of the complainant equipped with deadly weapons with a common intention to cause injuries

to the deceased-Dhan Singh and other injured persons and to that furtherance the appellant-Limji (now dead) gave a blow of the axe of axe on

the head of the deceased, due to which he sustained lacerated wound on the left parietal region . On opening of the body it was found that left

temporal bone of the deceased was broken, however, other injured persons also received simple injuries by hard and blunt object.  Appellant-Limji

(now dead) has gave a single blow from the blunt side of the axe on the forehead of the deceased and not repeated the same, which clearly indicates

that the accused/appellant were not interested in causing the death of deceasedDhan Singh, therefore, it would be appropriate that the assault was

on the vital part of the body of the deceased-Dhana Singh but no repetition was there, therefore, the trial Court has rightly held guilty the accused

persons for the offence under Section 304(II) of the IPC.

Although the accused have taken defence that the complainant party came to their house armed with deadly weapons and assaulted them, due to

which they also sustained injuries and in support of their defence they examined Kalniya (DW 1), Bhagan (DW 2), Tidiya (DW 3) and Shardabai

(DW 4). The Investigation Officer K.C. Pathak (PW 14), accepted in his cross-examination that a case was also registered against the complainant

party regarding the present incident. From the perusal of the MLC report of the appellant/accused-Ambaram it appears that he has sustained simple

injury and the appellants had failed to establish that the complainants are aggressor and they had caused the injuries to the complainant side in the right

of their private defence. They have filed the copy of the report (Ex. D1), which they have been lodged in the police station Gandhwani, from

which it reflects only Ambaram sustained injuries but this is not enough to cause death of deceased-Dhan Singh. There is nothing on record to show

that the incident has taken place infront of the house of the accused persons, therefore, the trial Court has rightly disbelieved the defence taken by

the appellants/accused persons.

On the basis of aforesaid discussion, I am of the considered view that the prosecution has succeeded to prove his case beyond reasonable

doubts. The trial Court has rightly appreciated the evidence adduced by the parties and held the appellants guilty for the offence punishable under

Sections 304(II) and 323/34 of the IPC and there is no reason to interefere in the finding of the trial Court. Accordingly, the conviction and sentence

passed by the trial Court is hereby affirmed and the appeal is dismissed.

Let a copy of this judgment be sent to the concerned trial Court for information and necessary compliance.