Kamlu vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present appeal against the judgment dated 5.2.2001 passed by the learned Sessions Judge, Damoh in S.T. No. 52/2000, whereby he has been convicted for offence punishable under Section 302 of IPC and sentenced to life imprisonment with fine of Rs. 2,000/-. In default of payment of fine, 6 months rigorous imprisonment.

The prosecution''s case, in short, is that, the appellant Kamlu @ Kamlesh had some dispute with Arti Bai (P.W.3), wife of Malkhan Singh, a quarrel took place between them in the past and in that quarrel, the deceased Narayan Singh intervened and therefore, the appellant felt some enmity with the deceased Narayan Singh. On 11.1.2000, the deceased Narayan Singh alongwith his brother Hargovind went to see his crops of wheat in the field situated at village Sagoni Kalan (Police Station Tejgarh, District Damoh). At about 8 p.m., Hargovind came back to his house but, the deceased Narayan Singh stayed in the field for the entire night. At about 9 p.m., the deceased Narayan Singh left the field to go to his house. Near a trivia in the village, the appellant met the deceased Narayan Singh and started assaulting him with a lathi (stick). On hearing his outcry, Hargovind, Hari Singh etc. rushed to the spot. Since the incident took place near the house of Arti Bai, therefore, Sultan Singh, Inder Singh and Arti Bai also went immediately to the spot. The appellant assaulted the deceased Narayan Singh on his head 4-5 times with his lathi. The deceased Narayan Singh therefore fell down on the ground and expired. Thereafter, Sunderlal Vishwakarma, father of the appellant and brother of the appellant, came to the spot alongwith other companions and took the appellant to their house. Due to aforesaid assault, various bones in the head of the deceased were broken and pieces of such bones, scattered on the spot. On 12.1.2000, at about 2 a.m., Hargovind Singh went to outpost Imaliya of Police Station Tejgarh and intimated about the incident and the case was registered. The dead body of the deceased Narayan Singh was sent for post-morten to District Hospital Damoh, where Dr. S.K. Khatri (P.W.7) had performed the post-mortem on the body of the deceased and gave his report, Ex.P/8. He found six injuries to him caused by hard and blunt object most of them were on the head of the deceased and on opening various wounds he found that there were so many fractures in his head, pieces of bones from left parieto occipital region were missing. Also there was a fracture on right parietal and temporal region. He preserved the viscera of the deceased alongwith pieces of bones and handed over to the concerned constable after sealing them for forensic science analysis. The police also recovered clothings of the appellant and all such articles were sent for forensic science analysis. In report, Ex.P/4, given by Forensic Science Laboratory, some blood was found on pant of the appellant Kamlesh and in report, Ex.P/22 given by serologist, it was found that human blood of Group ''B'' was present on the pant of the appellant, which was the same as found on the Baniyan of the deceased. After due investigation, a charge-sheet was filed before the JMFC, Damoh, who committed the case to the Court of Sessions.

The appellant abjured his guilt. He took a plea that he was falsely implicated in the matter due to enmity. Actually, Prahalad Singh S/o Sultan Singh was with the deceased Narayan Singh soon before the incident, who was still absconding and he was responsible for the crime. In defence, Khalai Singh @ Khilan Singh (D.W.1) and ASI Shri P.R. Prajapati (D.W.2) were examined.

After considering the prosecution''s evidence, the learned Sessions Judge, convicted and sentenced the appellant as mentioned above.

We have heard the learned counsel for the parties at length.

In the present case, Dr. S.K. Khatri (P.W.7) has stated that he performed the post-mortem on the body of the deceased Narayan Singh and found six wounds on his body. Description of the injuries is as under:

A large lacerated wound over left parietal region of scalp, extending backward upto the Lt. Occipital region, size is 11 cm x 3 cm. Brain tissue is oozing from it.

A large lacerated wound over left occipital region, below injury No. 1, size is 12 cms x 2.5 cms. A piece of brain tissue mixed with blood and pieces of bone is seen here.

Another large lacerated wound over left occipital region below injury No. 2, placed obliquely downward from mid line. Size is 3 cm x 1.5 cms.

A small lacerated wound behind left ear. Size is 3 cm x 1.5 cm.

An abrasion over lateral surface, Rt. Elbow, size is 2 cm x 1 cm.

Another abrasion below injury No. 5, size is 1 cm x 1 cm.

Internal Injuries:-

Subcutaneous tissue over both side of skull over post part shows side of haemotoma skull bones over left parieto occipital region shows multiple, irregular pieces. Three pieces of bones are present in the brain tissue lacerating the meaninges brain tissue and blood vessels. Once line of fracture extended irregular to anterior part is midline upto parieto occipital region, while another line extended over right parietal and temporal bone. Fracture also present in posterior and middle fozza of bone of skull. Suture line of frontoparietal Suture is open.

Below various injuries on head, he found that there were so many fractures on the various bones of the skull and so many pieces of left parietal occipital region were missing. According to Dr. Khatri, death of the deceased was homicidal, which could be caused by a lathi. The learned counsel for the appellant did not agitate that the death of the deceased was not homicidal and therefore, it is not necessary to discuss much on that point.

The prosecution had examined 4-5 eye witnesses. Out of them, Hargovind (P.W.1), Sahab Singh (P.W.2), Arti (P.W.3), Inder Singh (P.W.4) have stated about the incident, whereas Sultan Singh (P.W.11) and Lal Prasad (P.W.12) have turned hostile. However, they have accepted that Narayan Singh was lying at a trivia and nobody informed them as to who assaulted the deceased. The witnesses Hargovind (P.W.1), Sahab Singh (P.W.2), Arti (P.W.3) and Inder Singh (P.W.4) have stated that they saw that the appellant had assaulted the deceased with a lathi and due to such assault, head of the deceased was broken and upper portion of his body was filled with blood. It is true that an enmity of the appellant with the deceased is accepted by these witnesses but, enmity is a double edged weapon. Due to enmity, someone can falsely implicate his enemy or assault the enemy. Under such circumstances, the evidence of these witnesses is to be examined as to whether they are telling a truth or not.

The learned counsel for the appellant has submitted that Hargovind was brother of the deceased and Arti was the person for whom a quarrel had began between the deceased and the appellant in the past. These two witnesses have claimed that when they reached to the spot, they found each other standing prior to the incident. However, it is a minor contradiction because if two witnesses had arrived on the spot from different directions then, there main attention must be on the deceased and the appellant and therefore, when they saw the persons surrounding the spot then, it was possible that they could found each other standing prior to their arrival. It is also submitted by the learned counsel for the appellant that these witnesses were the created witnesses. According to the defence witness Khalai Singh @ Khilan Singh (D.W.1), he was working with Arti Bai in her field on the next day of the incident and Hargovind came to the field and took Arti Bai with the pretext that he wanted her consent to make her as witness in the case relating to death of his brother Narayan Singh. In this context, if FIR, Ex.P/1 is perused then, the incident took place at about 9 p.m. in the night and the FIR was lodged at 2 a.m. in the same night, in which it was mentioned that Arti Bai, Sultan Singh and Inder Singh were the eye witnesses. Under such circumstances, there was no need to the complainant Hargovind to contact Arti Bai in the noon of 12.1.2000 to get her consent to be a witness in the case. The testimony of the witness Khalai Singh @ Khilan Singh has no evidentiary value.

The appellant has also proved a report, Ex.D/5 with help of ASI Shri P.R.Prajapati (D.W.2) that one Sunderlal has lodged an FIR against Narayan Singh on 4.1.2000 to show that the deceased Narayan Singh had a quarrel with Sunderlal, 7 days ago. However, by a report that the deceased had abused Sunderlal Vishwakarma after consuming liquor was registered as a report of non cognizable offence and no action was taken against the deceased Narayan Singh by police and therefore, if any grievance was caused to anyone then it was caused to the deceased Narayan Singh. Sunderlal had already lodged an FIR against the deceased and hence thereafter, it was not possible that Sunderlal would have killed the deceased due to such a small quarrel and hence, the proof of the report, Ex.D/5 has no evidentiary value in the present case.

Detailed cross-examination was done to the eye witnesses but, nothing could be brought on record to shake their testimony. Various minor contradictions were recorded in the evidence of these witnesses with their case diary statements but, by such minor contradictions, their testimony cannot be brushed aside. The learned counsel for the appellant has also submitted that amongst the eye witnesses, Hargovind was brother of the deceased and therefore, he was expected to intervene in the incident and he would have also received some injuries. However, in para 7 of his evidence, he has given an explanation that since he did not have any weapon in his hand and therefore, he was unable to stop the appellant. Therefore, due to fear, he did not try to save his brother. The testimony of these witnesses is duly corroborated by timely lodged FIR, Ex.P/1 and the post-mortem report, Ex.P/8 proved by Dr. S.K. Khatri (P.W.7). Dr. Khatri found the injuries to the deceased on various parts of his body as described by the eye witnesses relating to blows caused by the appellant and therefore, due to appropriate corroboration, the testimony of the eye witnesses should be believed.

Sub Inspector D.N. Raj (P.W.14) has proved the documents, Ex.P/4 and Ex.P/5 by which one pant and one shirt of the appellant were seized from the appellant by removing them from his body. Though the witness Ramakant Patel (P.W.5) and Hamid (P.W.6) relating to those documents have turned hostile, there is no reason to disbelieve Sub Inspector D.N. Raj. The investigation officer took the shirt and pant of the deceased on the next day of the incident and therefore, it cannot be said that any manipulation was done by him. After seizure of such clothes those were sent to the forensic science laboratory alongwith other articles and by reports, Ex.P/21 and Ex.P/22 of Forensic Science Laboratory and serologist, it is established that on article ''E'' pant of the appellant, human blood of Group ''B'' was found, which was the same as it was found from article ''I-2'' at serial No. 32 jersey of the deceased. The appellant did not try to prove that his own blood group was "B". Hence, by such evidence it is also established that the appellant was the culprit, who caused death of the deceased Narayan Singh, otherwise his blood could not be found on the pant of the appellant. Under such circumstances, the testimony of the eye witnesses is also corroborated by the blood stains found on the pant of the appellant. The prosecution has proved beyond doubt that the appellant assaulted the deceased Narayan Singh for 5-6 times by lathi and caused his death.

The learned counsel for the appellant has submitted that there was no pre-meditation in the mind of the appellant and therefore, he cannot be convicted for offence punishable under Section 302 of IPC. His case falls within the purview of Section 304(1) of IPC. In support of this contention, the learned counsel for the appellant placed his reliance upon the judgment passed by Coordinate Bench of this Court in case of Rajesh @ Jadu Vs. State of Madhya Pradesh, and judgment dated 7.1.2011 passed in Criminal Appeal No. 568/2001 "Sunil Datta and others Vs. State of Madhya Pradesh" to show that in similar circumstances, the accused was convicted for offence punishable under Section 304(1) of IPC. In the light of aforesaid judgments, if the facts of the present case are considered then, it would be apparent that no quarrel took place at the time of incident but, it was a planned step taken by the appellant that when he found the deceased Narayan Singh all alone, he took the advantage of such a situation. If the quarrel would have started in a spur of moment and during the quarrel, the appellant would have assaulted the deceased then, it could be said that there was no pre-meditation in the matter. The appellant targeted the head of the deceased and gave four powerful blows on his head, so that the head of the deceased was broken and pieces of bones had spread all over the spot. According to the eye witnesses, by one blow on his head, the deceased Narayan Singh fell on ground and thereafter, the appellant continued to assault on his head. If all of the assaults were caused on the head when the deceased Narayan Singh was standing then, there was no possibility of spreading the pieces of bones from his head and therefore, when the investigation officer found so many pieces of bones at the spot then, the overt-act of the appellant is proved that he continued to assault the deceased on his head though after one assault, he fell down on ground. In this connection, the report, Ex.P/18 given by medico legal institute, Bhopal is important, in which it is found that the pieces of the bone recovered from the spot were of the same person whose bones were sent by taking sample from the body of the deceased and therefore, it was duly established that the appellant assaulted the deceased Narayan Singh on his head 3 times in a forceful manner, when he was lying on the ground and hence, the bones of his head had broken and spread all over the spot. Looking to the overt-act of the appellant, he continued to assault the deceased even when he fell down on the ground, after getting one blow on his head and therefore, due to such an act, it is established that the appellant was intended to kill the deceased, otherwise when the deceased fell down on the ground, he could have left the deceased. Under such circumstances, due to factual difference, the aforesaid judgments passed by the Division Bench of this Court cannot be applied in the present case.

It is proved beyond doubt that the appellant had assaulted the deceased by lathi causing his death. He was intended to kill the deceased and therefore, the appellant is guilty of offence under Section 302 of IPC. The learned Sessions Judge has committed no error in convicting the appellant for the aforesaid offences. There is no reason, so that conviction directed by the trial Court against the appellant may be altered.

So far as the sentence is concerned, the trial Court has already given a lowest sentence in the case and therefore, there is no need to make any interference in the order of sentence. On the basis of the aforesaid discussion, it would be apparent that there is no reason to interfere in the findings of conviction as well as sentence given by the trial Court and therefore, the appeal filed by the appellant has no force. It cannot be accepted. Consequently, appeal filed by the appellant is hereby dismissed by maintaining the judgment, conviction and sentence of the trial Court.