Jagdish Prasad vs State of Madhya Pradesh

This appeal has been filed by the appellant under Section374 (2) of the Cr.P.C. being aggrieved by the judgment dated 01.02.1995 passed by

Sessions Judge, Satna in S.T. No.84/944, whereby the appellant was convicted for offence punishable under Section 302 and 323 of the IPC and

sentenced for life imprisonment along with fine of Rs.1000/- and one month R.I. respectively with default sentence.

In brief the prosecution case is that the appellant and complainant party resided at village Karhiya Police Station, Singhpur District Satna. On

26.2.1994 at about 9:45 a.m., one (co-accused) Prem Narayan teased the daughter of Jaylal. When Jaylal complained about the incident to

Ramkripal (father of Prem Narayan), the appellant and other co-accused persons came with arms (Lathi, Bamboo Stick and axe). In furtherance

of their object, they assaulted Rajrani, Dinesh, Shanti, Lalji, Jaylal and Kadoli (brother of complainant Jaylal). Kadoli died due to fatal injuries

caused by the appellant. Hence, FIR was lodged by Jaylal against the appellant and other co-accused persons for the offences under Sections 302

and 323 read with Section 34 of the IPC at Police Station Singhpur, District Satna. After due investigation, charge sheet was filed against the

appellant and other coaccused persons.

After considering the entire evidence on record, learned trial Court found that Kadoli was died due to head injuries caused by the appellant by

means of bamboo stick. Further, the appellant voluntarily caused simple injuries to Lalji, Shanti, Dinesh and Rajrani. They were family members of

deceased and eye-witnesses of the incident. Hence, he was convicted for offence punishable under Section 302 and 323 of the IPC and sentenced

as mentioned in paragraph 1.

The appellant has challenged above findings on the grounds that all the prosecution witnesses belong to the same family. Hence, they are

interested witnesses. Their testimony should have been scrutinized with great care. Similarly, their testimony is contradictory with the medical

evidence of Dr. R.B. Patel (PW-10). The trial Court erred in holding that the prosecution has proved the charges beyond all the reasonable doubt

against the appellant. Hence, the appellant is liable to be acquitted from the charges levelled against him.

Having heard learned counsel for the parties and perused the record.

Learned Govt. Advocate has submitted that the trial Court has not committed any error in convicting and sentencing the appellant for the

offences under Section 302 & 323 of the IPC. Therefore, it is prayed that the appellant may not be acquitted from the charges levelled against him.

It appears from the appeal memo that the appellant has not challe nged his conviction for offence under Section 323 of the IPC. Learned

counsel for the appellant has placed reliance on the judgments passed in cases of Subramani @ Jeeva @ Kullajeeva Vs. Station House Officer,

Police Station Odiyansalai, (2011) 14 SCC 454, Sarup Singh Vs. State of Haryana represented by the Home Secretary with Ciani Ram Vs. State

of Haryana and others, (2009) 16 SCC 479 and contended that the appellant caused death of deceased by a single blow. Therefore, the offence

would squarely fall under Section 304 Part-II of the IPC.

Jaylal (PW-1) is elder brother of the deceased. He deposed that when his daughter Archna was all alone at his home, the appellant teased her.

Hence, after returning at home, he went to the appellant''s house to make a complaint but the appellant and his family members abused him and

started beating him by bamboo stick and axe. At that time the appellant armed with Lathi. The deceased Kadoli, Lalji, Shanti, Rajrani came to

rescue him the appellant and all his family members started assaulting them. The appellant inflicted blow by Lathi (bamboo stick) on right ear of

Kadoli. The deceased Kadoli sustained the injuries on his head and leg also. When Lalji, Rajrani, Shanti and other tried to rescue him, they also

sustained the injuries caused by the appellant and other co-accused persons. Thereafter, SHO himself reached at the spot and lodged FIR Ex.P/1

as per statement of Jaylal (PW-1). Deceased Kadoli died due to injuries sustained by him. FIR Ex.P/1 was registered by Y.S. Jaisur (PW-11),

who corroborate the testimony of Jaylal (PW-1).

Ku. Archna (PW-2) daughter of Jaylal (PW-1) also corroborate the testimony of Jaylal (PW-1). She stated that in absence of her mother and

father, cousin brother of appellant Prem Narayan came at her home and he closed the door. He caught hold Archna to take into the room. She

somehow escaped from Prem Narayan and shouted, then Prem Narayan fled away from the spot. She narrated whole incident to her father. Her

father went to the appellant''s house. We find that there is no inconsistency between the testimony of Jaylal (PW-1) and Archna (PW-2), which

established that due to that incident, the appellant was annoyed with Jaylal and his family members.

Therefore, the appellant and co-accused persons assaulted Jaylal and his family members. With this regard, the testimony of Jayalal is also

corroborated by his neibhbours namely Maiyadeen (PW-3), Lalji (PW-5), Shanti Bai (PW-6) and Dinesh Kumar Vishwakarma (PW-7). All the

witnesses have stated that the appellant gave a Lathi blow on the right ear of deceased Kadoli.

Maiyadeen (PW-3) is an independent eyewitness and neighbour of the deceased. His presence on the spot found reliable. He also stated that

when Lalji, Shanti Rajrani and Dinesh came to rescue the deceased, the appellant and other co-accused persons assaulted them by bamboo stick

and axe.

It is important to note that all the above witnesses are injured witnesses. It was mentioned in Dehatinalishi Ex.P/1 and FIR Ex.P/1-A that the

appellant assaulted them. As the injured witnesses, their testimony has great evidentiary value, which establish their presence at the seen of

occurrence.

In case of Chandrasekar & Anr. Vs. State, 2017 SCC Online SC 620, Hon''ble Supreme Court has held that :

Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking

the truth unless shown otherwise. Though, the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop Vs.

state of UP (2011) 6 SCC 288 observing as follows: Where a witness to the occurrence has himself been injured in the incident, the testimony of

such a witness is generally considered to be very reliable, as he is a witness that comes with a built-in guarantee of his presence at the scene of the

crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.

The testimony of injured eyewitnesses cannot be discarded. Even though, the testimony of injured witnesses related with the family members

and interested witnesses cannot be disbelieved because FIR Ex.P/1-A was lodged within one hour and fifteen minutes from the date of incident.

The names of Dinesh, Rajrani, Shanti and Lalji were also mentioned as injured or eye-witnesses. We do not find any contradiction or omission

with regard to their presence at the spot. The learned trial Court has rightly relied upon the testimony of these witnesses.

R.B. Patel (PW-10) corroborated the testimony of Jaylal (PW-1), who also sustained simple injuries on his hand and right hand on the date of

incident. Similarly, he found simple injuries sustained by Lalji, Shanti, Dinesh and Rajrani, In our opinion, their testimony cannot be discarded on

the ground that they are relative or interested witnesses of the deceased.

In case of ""Roop Narain Mishra Vs. State of UP [2017 Cri.LJ 1487]"" has held as under :

On the point of ''interested witnesses'', the Hon''ble Supreme Court in State of U.P. v. Jagdeo, reported in 2003 Cri LJ 844 (SC) observed that

only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye witnesses happen to be family

members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of

occurrence. In Mst. Dalbir Kaur v. State of Punjab, 1976 Cr LJ 418 (SC), following observations were made:

The term ""interested"" postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is

convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at midnight

inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider

can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be

regarded as an interested witness. Witness who gives details with absolute accuracy is trustworthy.

[See also Waman and others v. State of Maharashtra, 2011 Crl. LJ 4827].

In case of ""Arjun vs. State of C.G. [2017 (2) MPLJ (Cri.) 305]"", the Hon''ble Supreme Court has held as under :

Evidence of related witness is of evidentiary value. Court has to scrutinize evidence with care as a rule of prudence and not as a rule of law. Fact

of witness being related to victim or deceased does not by itself discredit evidence.

In case of ""Kartik Malhar Vs. State of Bihar [(1996) 1 SCC 614]"" the Hon''ble Supreme Court has held as under :-

A close relative who is a natural witness cannot be regarded as an interested witness, for the term ""interested"" postulates that the witness must

have some interest in having the accused, somehow or the other convicted for some animus or for some other reason.

Hence, the prosecution case is duly established by the testimony of related eye-witnesses. It is true that Dr. R.B. Patel (PW-10) found a

lacerated wound over head of the appellant about 2"" x 1/4"" x 1/6"" and tenderness on his back.

The facts of the case indicates that so many persons were involved in the alleged incident and 5-6 persons were injured from the complainant

side and one person died. Only the appellant sustained simple injury. It is not a case where the complainant party was aggressor at the time of

incident. They were not armed with any weapon. Hence, the simple injury sustained by the appellant is not sufficient to disbelieve the prosecution

case.

Dr. R.B. Patel (PW-10) conducted autopsy of the deceased. He found bleeding from left ear and nose of the deceased. A swelling about 3"" x

1/2"" and another swelling of 4"" x 1/2"" on frontal parietal region of head. There is a possibility of fracture in bones. In internal examination, he found

fractures in parietal and frontal bone. The brain membrane was also ruptured and brain matter were came out. Dr. R.B. Patel (PW-10) found that

deceased died due to above injuries and excessive bleeding from internal organs. As per opinion of doctor, the injuries of deceased are sufficient

to cause death of deceased in ordinary course. All the injuries are homicidal in nature and caused by hard and blunt object.

In the present case also, the deceased was surrounded with his family members at the time of incident and about four persons were also

injured during the incident. There was a sudden quarrel between the parties. The appellant also sustained some simple injuries, therefore, the matter

would fall within exception 4 of Section 300 of the Indian Penal Code.

The incident took place in the year 1995. Dr. R.B. Patel (PW-10) found a swelling about 3""x 1/2"" and another swelling about 4""x1/2"" on

frontal parietal region on head of deceased, which resulted in fracture of frontal and parietal bone. Due to the aforesaid injuries, the deceased

suddenly died just after the incident on the spot.

In our considered view, case of the appellant squarely fall under Section 304 Part-I of the IPC. Hence, appeal filed by the appellant is partly

allowed. His conviction under Section 302 of the IPC is altered into under Section 304 part-I of the IPC. We accordingly, hold the appellant guilty

for offence punishable under Section 304 part-I of the IPC. He is directed to deposit a sum of Rs.5,000/- before the trial Court. On non-

depositing the fine amount, the appellant shall undergo six months R.I. as default sentence. The jail sentence already undergone by the appellant

shall be adjusted in the jail sentence. The appellant is on bail, he is directed to surrender immediately before the concerned trial Court to undergo

the remaining jail sentence, failing which the trial Court shall take appropriate action.

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