Chhotelal & Anr vs State Of Madhya Pradesh

This appeal has been filed under Section 374(2) of the Code of Criminal Procedure, arising out of the judgment dated 05.02.1997, passed by the Ist

Additional Sessions Judge, Shahdol, in Sessions Trial No.26/96, whereby the accused/appellants have been convicted for the charge under Section 302

read with Section 34 of the Indian Penal Code (hereinafter referred as “IPCâ€​) and sentenced to undergo life imprisonment.

The prosecution case, in brief, is that on 21.12.1995 at about 05:00 pm, wife of appellant- Chhotelal quarreled with Ramkaran (since deceased) due

to steeling of wood. After sometime both the appellants armed with lathi reached at the doorstep of Ramkaran, abused and assaulted him with lathi.

He sustained injuries on head, ear etc. On 22.12.1995, he was unconscious due to such injuries then Ravikaran (brother of Ramkaran) brought him to

Police Station- Budhar to lodge FIR (Ex.-P/2). On 24.12.1995 at about 08:00 am during the treatment at District Hospital, Shahdol, Ramkaran died.

Merg intimation (Ex.-P/12) registered by Police Station, Shahdol. After completion of the investigation, charge-sheet was filed against the appellants

before the concerned Court.

After committal of the case, learned trial Court framed charge under Section 302 of IPC and in alternate Section 302 read with Section 34 and

Section 449 of IPC against the appellants. They abjured the guilt and appellant- Chhotelal taken plea of alibi. As per the appellants, the deceased was

aggressor. The deceased himself assaulted wife of appellant- Chhotelal because of enmity. They have been falsely implicated in this case. In defence

some documents have been filed by the appellants.

After relying upon the testimony of eye witnesses Ravikaran (PW-2), Bodhram (PW-9), Madhu (PW-7), Shyambai (PW-8) and testimony of Dr.

A.P. Pathak (PW-4) learned trial Court held the appellants guilty for committing offence punishable under Section 302 read with Section 34 of IPC for

committing murder of Ramkaran and sentenced for life.

The appellants have challenged the findings of the trial Court on the grounds that at the time of the incident the deceased was drunken. He came to

the house of the appellants and assaulted appellant- Kamlesh with lathi. In right of private defence, appellant- Kamlesh dashed him as a result the

deceased ran away from the spot. There is possibility that injuries might have caused due to fall. At the time of incident, appellant- Chhotelal was

present on his duty. He was not present on the spot. With this regard, learned trial Court has wrongly considered the documents produced by him in

his favour and convicted them for committing murder of the deceased. They are entitled to be acquitted from the charges and set aside the impugned

judgment.

Heard rival contention of both the learned counsel for the parties. Learned Government Advocate opposed the rival contention of learned counsel

for the appellants and perused the record.

This case is based on the testimony of related eye witnesses. In their cross-examination, it clearly appears that eye witnesses Madhu (PW-7) and

her mother Shyambai (PW-8) both were present about 50 steps far from the place of occurrence. Incident took place in front of the house of the

deceased as also shown by Investigating Officer Mohanlal (PW-11) in spot map (Ex.P/14). Both the eye witnesses and another relatives Bodhram

(PW-9) and Ravikaran (PW-2) further explained that their houses are adjacent to the house of the deceased, however on the evidence brought on

record the presence of Madhu (PW-7) and Shyambai (PW-8) on the spot cannot be disbelieved. The incident happened at about 03:00 pm, generally

at that time ladies of the family would present at their house or at their work place as stated by them. Thus, they are natural eye witnesses may be

they are close relatives of the deceased but, on that account their testimony cannot be brushed aside.

The testimony of related eye witnesses cannot be ignored. It can be scrutinized with the caution. In catena of judgments of Supreme Court held that

conviction can be based on the testimony of related eye witnesses, if it is found trust worthy and reliable.

Recently in case of Kameshwar Singh Vs. State of Bihar 2019 (1) M.P.L.J. (Cri.) (SC) 51 8Hon’ble Supreme Court held that “It is the duty

of the Court to scrutinise the evidence carefully and, in terms of felicitous metaphor, separate the grain from the chaff. But, it cannot obviously

disbelieve the substratum of the prosecution case or the material parts of the evidence and reconstruct a story of its own out of the rest. Efforts should

be made to find the truth. This is the very object for which Courts are created. To search it out, the Court has to disperse the suspicious cloud and

dust out the smear of dust, as all these things clog the very truth. So long as chaff, cloud and dust remain, the criminals are clothed with this protective

layer to receive the benefit of doubt. So, it is a solemn duty of the Courts, not to merely conclude and leave the case the moment suspicions are

created. It is the onerous duty of the Court, within permissible limits to find out the truth. It means, on one hand that no innocent man should be

punished, but on the other hand to see no person committing an offence should go scot free. If in spite of such effort suspicion is not dissolved, it

remains writ at large, benefit of doubt has to be credited to the accused. The evidence is to be considered from the point of view of trustworthiness

and once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the evidence.â€​

Also the related eye witnesses are the witnesses of truth. Generally they proceed to punish the real culprit of crime and they are not inclined to

falsely implicate innocent person. Hence, we rely upon their testimony which is corroborated by Ravikaran (PW-2), Bodhram (PW-9) and also with

the medical evidence. The reasons mentioned and due to the injuries Ramkaran (since deceased) did not proceed to lodge FIR promptly and the

aforesaid circumstances also corroborated by eye witnesses Madhu (PW-7), Shyambai (PW-8) Ravikaran (PW-2) and Bodhram (PW-9).

Investigating Officer Mohanlal (PW-11) clearly deposed that on 22.12.1995(next day of the incident) at about 15.30, Ravikaran (PW-2) brought

Ramkaran in unconscious condition at Police Station Budhar, then he lodged FIR (Ex.P/2) as narrated by Ravikaran. Immediately he sent Ramkaran

to Primary Health Care Centere, Budhar for his MLC.

Dr. J.N. Pandey (PW-3), as per his testimony, examined Ramkaran on the same day. He found Ramkaran was injured. He sustained following

injuries on his body:-

Crushed wound size of 6 cm x 1 cm x 1 cm on back side of head.

Abrasion size of 1 cm x 1.5 cm on left forearm.

Abrasion size of 2.5 cm x 3/4 cm on lower side of left forearm.

It is said all the injuries were caused by hard and blunt object. Although, he stated that at the time of medical checkup Ramkaran was conscious and

able to speak properly, but his testimony is contradictory with Dr. R.K. Mishra (PW-1), who is treating doctor. Investigating Officer Mohanlal (PW-

11) and the family members of the deceased have also established that Ramkaran was unconscious.

Hence, we are relying on the testimony of Investigating Officer Mohanlal (PW-11) and held that because Ramkaran was not competent to lodge

FIR and he was unconscious, therefore, FIR was lodged by his brother Ravikaran. We do not find any reason to believe that the FIR was lodged after

brought up the concocted story against the appellants. There are some minor contradictions between the testimony of eye witnesses and witnesses of

subsequent evidence of Ravikaran (PW-2) and Bodhram (PW-9), but such type of contradiction is not sufficient to brush aside the entire prosecution

evidence.

In the cases of Manoj Kumar Vs. State of H.P. 2019 (1) M.P.L.J. (Cri.) (S.C.) 356 the Hon’ble Supreme Court has held that “merely

because one part of the evidence of certain witness is not believed, it does not mean that his entire evidence shall be discarded.†Looking to the

evidence of eye witnesses, they have no intention to falsely implicate the appellants in the case. They have no enmity with the appellants. Both the eye

witnesses have clearly stated that firstly wife of appellant- Chhotelal came to the house of the deceased. She abused him and also shouted on him.

Thereafter, the deceased came out from his house and chased her then she ran away towards her house, thereafter, appellants came to the house of

the deceased armed with lathis and assaulted him. Due to which he sustained fatal injuries on vital part of the body.

Dr. A.P. Pathak (PW-4) conducted the postmortem of Ramkaran and found following injuries on the body of the deceased:-

Crushed wound size of 1 1/2â€​ x 4 mm x bone deep on left parietal reason.

Crushed wound size of 2.5’’ x 4mm x bone deep on  upper side of left parietal reason.

Abrasion size of 1’’ x 1/2’’ over left eye.

Two abrasion size of 1cm x 1 cm over left side of forehead.

After internal examination, Dr. A.P. Pathak (PW-4) found extra dural hematoma over the left side of head. He also found large fracture on left

parietal bone along with clotted blood. Both chambers of heart were full of blood. Doctor opined that Ramkaran died due to the head injuries, caused

coma. He died within 24 hours of the postmortem. Head injuries were sufficient to cause his death in ordinary course of nature.

Learned counsel for the appellants further submits that the deceased himself caused injuries to Kamlesh. Dr. J.N. Pandey (PW-3) examined

appellant- Kamlesh on the same day of occurrence and found a contusion over his left thigh and 3-4 abrasion on right elbow, left knee and forehead,

size of abrasion were very small. Doctor did not find any fatal and grievous injury on the body of appellant- Kamlesh.

Learned counsel for the appellants placed reliance upon the case of State of Andhra Pradesh Vs. Rayavarapu Punnayya and another (1976) 4

SCC 382, and prays that the appellants are not entitled to be convicted under Section 302 of the IPC. They are entitled to be convicted under Section

304 (part-I) of the IPC.

In case of Manoj Kumar (supra) the Hon’ble Supreme Court has further held after discussing the case laws of the case ofS hridhar Bhuyan

Vs. State of Orissa, 2004 MPLJ Online (Cri.) (S.C.) 15, Deo Nath Rai Vs. State of Bihar and others AIR 2017 SC 5428 and Camilo Vaz Vs. State of

Goa (2000) 9 SCC 1 held as under:-

“21. Having taken into consideration, the statement of witnesses on questions of fact, it would be appropriate to have thorough look at the question

of law pertaining to culpable homicide. Learned counsel for the appellants contended that the defense emerging from the evidence is that the

deceased party arrived at the place of the incident wherein PW-13 started verbally abusing the accused which ensued a sudden fight resulting in the

injuries being caused to the deceased and while so the High Court failed to appreciate that there was no premeditation on behalf of the appellant-

accused and the entire incident was due to a sudden fight and the High Court ought to have invoke Exception 4 to section 300, Indian Penal Code.

Exception 4 to section 300, Indian Penal Code as under:-

Exception 4.- Culpable homicide is murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and

without the offender having taken under advantage or acted in a cruel or unusual manner.

There is no dispute about the ingredients of Exception 4 to section 300, Indian Penal Code, the following conditions are to be satisfied namely:

(i) that the incident happened without premeditation;

(ii) in a sudden fight;

(iii) in the heat of passion;

(iv) upon a sudden quarrel and

(v) without the offender having taken undue advantage or acted in a cruel or unusual manner.â€​

In the present case, firstly wife of the appellant- Chhotelal quarreled with the deceased then she ran away from the house of the deceased.

Thereafter, all the appellants came there armed with lathis. Hence, it cannot be said that the incident happened without premeditation in sudden fight

or in the heat of passion. Although, the defence witnesses R.P. Patel (DW-1) tried to establish that at the time of incident appellant- Chhotelal was

 present at the Budhar jail to perform his duty but nobody corroborated his testimony. Eye witnesses clearly denied aforesaid suggestions. After

observing the testimony, we also consider that this plea of alibi was not true, this evidence is created after thought. After considering the testimony of

Jaheer Ali (DW-2) we come to the conclusion that there is sufficient possibility to save his life, the deceased caused some simple injuries to Kamlesh.

We are not inclined to accept the defence version, which is not corroborated by any reliable evidence. In furtherance of their common intention of

murder, the appellants intentionally came to the spot and caused more fatal injury on the head of the deceased. In that view of the matter, in our

considered opinion, the findings of conviction recorded by the trial Court and the sentence as directed against the appellants do not warrant any

interference in facts of the case.

In view of the foregoing discussions, the judgment of the trial Court is hereby upheld. This appeal being devoid of any merit, is dismissed. The

appellants are on bail. Their bail bonds stand cancelled and they be taken into custody to serve remaining part of sentence. Let a copy of this judgment

be sent to the trial Court as well as to the authorities to take appropriate steps to take the appellants back in custody to serve remaining part of the

sentence.

At the end, it is our duty to record words of appreciation in favour of Shri Abhishek Tiwari, Amicus Curiae, who assisted this Court in disposal of

this appeal, which was pending since 1997. His assistance is hereby acknowledged.