Nonelal @ Sadhu Kol vs State Of Madhya Pradesh

This appeal has been preferred by the appellant against the judgment dated 25.09.2008 passed in Session Trial No. 66/2008 by the learned Sessions

Judge, Katni, whereby, the appellant, was held guilty for commission of offence punishable under Section 302 of the Indian Penal Code and was

convicted and sentenced to undergo life imprisonment with fine of Rs.500/-, in default of fine, further six months’ R.I.

The factual matrix giving rise to this appeal in short is that on 15.03.2008 at around 6 O’clock in the evening, it is informed by complainant

Durga Bai Kol (PW 1) to Police Station Sleemnabad that she resides at village Dharwara and she works for Seetaram Garg to oversee his farm. She

has constructed a hut there. On the same day, at around 4.30 p.m when her husband (deceased Raja Kol) was lying down in courtyard of the hut the

appellant came there and abused him. On telling him not to abuse, the appellant inflicted three to four blows of spade on the left side of head and other

parts of body of the deceased. At the time of incident, Samay Lal (PW 2) and Mangobai (PW 3) had reached the spot. Durga Bai lodged the report

(Ex. P-1) and marg intimation (Ex. P-2) was registered at Police Station. Investigating Officer A.K. Shukla (PW 9) had also reached the spot. He

issued notice under Section 175 Cr. P.C. to the witnesses to remain present during Lash Panchnama vide Ex. P-3. He prepared Lash Panchanama

vide Ex. P-4. He also prepared the spot map vide Ex. P-6. Dr. S.K. Pathak (PW 8) performed autopsy of the deceased vide Ex. P-14 and A.K.

Shukla (PW 9) recorded statement of witnesses. After completion of the investigation, challan was filed. Trial Court framed the charges under

Section 302 of I.P.C. Accused abjured his guilt during trial and pleaded that he has been falsely implicated in the case. Prosecution examined 9

witnesses and appellant examined one witness during the trial. The Trial Court found that Appellant was guilty of commission of offences punishable

under Section 302 of I.P.C and awarded the sentence of life imprisonment. Â

It is contended by learned counsel for the appellant that the trial Court has failed to appreciate the evidence on record in its proper perspective

which has resulted in miscarriage of justice. It is further stated that most of the prosecution witnesses are interested witnesses. There are material

contradictions and omissions in the first information report as well as in the evidence of Durgabai (PW 1). So judgment passed by the Trial Court

deserves to be set aside and appellant be acquitted.

Learned Govt. Advocate supports the case of the prosecution and contends that the judgment passed by learned trial Court is just and proper and

does not warrant any interference.

Now the question which arises for consideration first is that whether the appellant caused the death of the deceased.

Dr. S.K. Pathak (PW 8), who performed the post mortem of deceased and prepared the post-mortem report as Ex. P/14 stated in his deposition

that on 16.3.2008 he performed the post mortem of Rajaram Kol (deceased) and found following injuries:

1& dVk gqvk ?kko 5 bap x,d bap gM~Mh dh xgjkbZ rd tks fd flj es a cka;h rjQ QzUVy jhtu ls VSEiksjy jhtu rd [kMh pksV Fkh tks fd e/; js[kk ls yx0

2 bap ckgj dh vksj ekStwn FkhA

2& dVk gqvk ?kko vkdkj&5 bap x 3@4 bap x gM~Mh dh xgjkbZ rd tks fd psgjs esa cka;s rjQ l s ysdj flj ds iSjkbZVy jhtu rd frjNh ekStwn Fkh-

nkfguk rjQ dk dku Hkh dVk gqvk Fkk- vkSj flj dh gM~Mh Hkh vkaf’kd :i ls dVh gqbZ FkhA

3& dVk gqvk ?kko vkdkj 2 bap x 1@4 bap x gM~Mh dh xgjkb Z rd tks fd pgs js esa cka;h rjQ dku ds Bhd lkeus frjNh ekStwn FkhA

4& uhyxw dh pksV fNyu fy;s gq, vkdkj 6 bap x 2 bap tks fd ihB esa chpks a chp ,y 2 ls ,y 5 ysfcy ij vfu;fer vkdkj dh yky ,oa dkys ls jxa dh pksV FkhA

2& QQs Ms isy Fks- g`n; esa nksuk sa rjQ [kkyh Fkk- vkarksa dh f>Yyh] ;d`r] Iyhgk isy Fks- isV [kkyh FkkA

He opined that the injuries are anti mortem in nature and caused by hard and cutting object and the cause of death is shock as a result of

haemorrhage due to injuries. Thus, it is clear that deceased suffered a homicidal death vide report (Ex. P-14). The opinion of doctor is in the following

manner:-

vksihfu;u& mDr lHkh pksVa e`R;q iwoZ dh Fkha vkSj fdlh cM+s ,oa /kkjnkj vkCtSDV l s vkuk laHkkfor gS- 'ko ls fudkys x;s diM+s gjs eVeSys ls

jxa dh Qqy iwjh ckag dh 'kVZ jDr jfatr Fkh- gYds uhys eVeSys l s jxa dh QqyiSaV ftl ij [kwu ds /kCcs Fks ,oa vaMj fo;j Fkh- mijksDr lHkh diM+s

lkcwr Fks- lHkh diM+ksa dks ,d isfdV esa j[kk tkdj mijksDr vkj{kd dks lhy can dj ijh{k.k gsrq lkSaik x;k FkkA

Durga Bai (PW 1) has stated in her deposition that the incident had occurred four to five days prior to Holi Festival. She stated that at the time

when she was monitoring the farm of Sitaram Garg and the deceased was lying down in the courtyard of the hut adjoining to the house of Kamlesh

Garg (PW 4), the applicant came there and abused deceased and inflicted two blows of spade on his head. On hearing her cry, Samay Lal (PW 2)

came there and snatched the spade away from the appellant accused. Thereafter, appellant accused ran-away from the spot. Durgabai also lodged

F.I.R vide Ex. P/1 and signed the same and provided information in respect of Marg Intimation (Ex. P-2). She further stated in her examination that

accused committed murder of one relative of her and for that reason; he used to abuse her husband (deceased). A.K. Shukla (PW 9) deposed that on

the basis of information received from Durgabai (PW 1), he registered first information report vide Ex. P-1 and Marg Intimation P-2 and further

stated that he prepared the spot map vide Ex. P-7.

Learned Amicus Curiae argued before this Court that testimony of Durgabai (PW-1) is not reliable inasmuch as she being the wife of deceased is

interested witness in this case. In this regard, Hon’ble Apex Court in the case of State of Rajasthan v. Smt. Kalki and another (AIR 1981 SC

1390) has held that “relatedâ€​ is not equivalent to ‘interested’. Hon’ble Supreme Court has held as under:

“5. As mentioned above the High Court has declined to rely on the evidence of P.W.1 on two grounds: (1) she was a ""highly interested"" witness

because she ""is the wife of the deceased"", and (2) there were discrepancies in her evidence. With respect, in our opinion, both the grounds are invalid.

For, in the circumstances of the case, she was the only and most natural witness; she was the only person present in the hut with the deceased at the

time of the occurrence, and the only person who saw the occurrence. True, it is she is the wife of the deceased; but she cannot be called an

'interested' witness. She is related to the deceased. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she

derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural

one and is the only possible eye witness in the circumstances of a case cannot be said to be 'interested'. In the instant case P.W.1 had no interest in

protecting the real culprit, and falsely implicating the respondents.â€​

So, on this ground the evidence of Durgabai (PW 1) cannot be discarded. Durgabai (PW 1) is a natural witness. She was present at the time of

incident, so she witnessed the incident. Although Durgabai admitted enmity with the appellant but in her cross-examination there is no substantial

contradiction and omission. So her evidence is wholly reliable.

It is open to the Court to convict the appellant on the basis of evidence of a single witness. The Hon'ble Supreme Court in the case of Deny Bora

v. State of Assam reported [(2014) 14 SCC 42] with regard to conviction on the basis of testimony of sole witness has held as under :

“14. As we find, the conviction wholly rests on the sole testimony of PW-14. It is well settled in law that conviction can be based on the testimony

of a singular witness. It has been held in Sunil Kumar v. State (Govt. of NCT of Delhi) that:

“9...... as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment

in convicting a person on the sole testimony of a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But, if there are doubts

about the testimony the courts will insist on corroboration.

The same principle has been reiterated in Namdeo v. State of Maharashtra[6] by stating that it is open to a competent court to fully and completely

rely on a solitary witness and record conviction, if the quality of the witness makes the testimony acceptable.â€​

Thus, the evidence of Durgabai (P.W. 1) is sufficient to hold that the appellant committed death of deceased by inflicting blow of spade on his head.

Apart from that, Samaylal (PW 2) also witnessed the incident. At the time of incident, he was monitoring farm of Umesh Pandey, which was

situated beside the farm where incident took place. On hearing the cry of Durgabai, he went there and found that the accused was armed with spade

and assaulting the deceased. He snatched the spade from the possession of appellant and threw it away. Thereafter the accused ran away from the

spot. There were injuries found on the head of the deceased. He stated that the police has prepared the spot map vide Ex. P/7, seized the spade vide

Ex. P/8 and the same were signed by him. Although Samaylal (PW 2) was declared hostile by prosecution; however, the Hon’ble Supreme Court

in the case of Lahu Kamlakar Patil and another Vs. State of Maharashtra (2013) 6 SCC 417 has held as under:

“15. It is settled in law that the evidence of a hostile witness is not to be rejected in toto. In Rameshbhai Mohanbhai Koli and Others v. State of

Gujarat[1], reiterating the principle, this Court has stated thus:-

'16. It is settled legal proposition that the evidence of a prosecution witness cannot be rejected in toto merely because the prosecution chose to treat

him as hostile and crossexamined him. The evidence of such witnesses cannot be treated as effaced or washed off the record altogether but the same

can be accepted to the extent that their version is found to be dependable on a careful scrutiny thereof. (Vide Bhagwan Singh v. State of Haryana[2],

Rabindra Kumar Dey v. State of Orissa[3], Syad Akbar v. State of Karnataka[4] and Khujji v. State of M.P.[5])

In Takdir Samsuddin Sheikh v. State of Gujarat and another, [(2010) 10 SCC 158] it is held by their the Hon’ble Supreme Court as under:

It is settled legal proposition that while appreciating the evidence, the court has to take into consideration whether the

contradictions/omissions/improvements/embellishments etc. had been of such magnitude that they may materially affect the trial. Minor contradictions,

inconsistencies, omissions or improvements on trivial matters without affecting the case of the prosecution should not be made the court to reject the

evidence in its entirety. The court after going through the entire evidence must form an opinion about the credibility of the witnesses and the appellate

court in natural course would not be justified in reviewing the same again without justifiable reasons. (Vide: Sunil Kumar Sambhudayal Gupta (Dr.) &

Ors. v. State of Maharashtra, (2010) 13 SCC 657).

Thus, it is well established principle of law that evidence of hostile witness is not washed off the record altogether. That apart his evidence is found

creditworthy and cannot be acted upon it. Such a witness may not be rejected outrightly. This principle is laid down by Apex Court in Keshoram Gora

v. State of Assam (AIR 1978 SC 1096).

In the suggestion made on behalf of Defence that Durgabai (PW 1) and Samaylal (PW 2) had illicit relations and actually Samaylal caused death

of deceased Raja Kol and falsely implicated the appellant in this grave case; Samaylal denied such suggestion. Appellant had not given such

suggestion in the crossexamination of Durgabai (PW 1), so this defence of the appellant is not trustworthy. There is no substantial contradiction and

omission in the examination of the witness. So the evidence of Samaylal (PW2) is also reliable.

Mango Bai (P.W.3) also stated in her deposition that in the month of Falgun, when she was with Durga Bai (P.W. 1) and deceased was lying

down in courtyard, the appellant/accused came there and abused the deceased and inflicted blows on the left side of his head by spade. There is no

material contradiction and omission in the cross-examination of Mangobai (PW3). So evidence of Mangobai (PW-3) is also believable. Â

Bisarta Kol (PW 5) is the husband of Mangobai (PW 3). He deposed that his wife Mangobai (PW 3) came to house from field and told him that

appellant inflicted three blows of spade on the head of deceased. Then he reached the spot. He saw the deceased in dead position. He also stated that

Durgbai (PW 1) cried due to which villagers gathered on the spot. Although prosecution declared this witness hostile, but there is no discrepancy in

the cross-examination of this witness. So, it reveals that after the incident, Durgabai (PW 1) and Mangobai (PW 3) told the incident to this witness. So

it is crystal clear from the aforesaid evidence that appellant inflicted three blows of spade on the head of deceased. Â

Shri A.K. Shukla (PW 9) who was the Investigating Officer posted in Police Station Sleemnabad deposed that on the basis of information received

from Durga Bai Kol (PW-1), he registered F.I.R in Crime No. 86/2008 under Section 302 of the Indian Penal Code vide Ex. P/1 and Marg intimation

Ex. P/2. He further states that he prepared the spot map vide Ex. P/7 and signed the same. He prepared the seizure memo as Exhibit P/8 and seized

the spade when produced by Samaylal (PW 2). He further stated that the seized article was sent to FSL Sagar for chemical analysis vide Ex. P/16.

Learned Amicus Curiae argued that when prosecution examined Dr. S.K. Pandey (PW 8) the seized weapon was not produced and FSL report

related to the weapon was also not produced. So on this ground the prosecution case is weak. It is established principle that when substantial evidence

is available on record then production of seized weapon is not necessary. In Yogesh Singh v. Mahabeer Singh and others [(2017) 11 SCC 195],

Hon’ble Supreme Court has held as under:

“47. The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel

no need to address this issue since it had already been validly discarded by the Trial court while convicting the respondents. In any case, it is an

established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular

evidence. [See Lakahan Sao Vs. State of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs. Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit

Singh and Anr. Vs. State of Punjab, (2013) 12 SCC 746].

Appellant examined Dharmu as D.W. 1. Dharmu (D.W.1) deposed that deceased was going to his field to take wine. At that time he fell down on

cultivator due to which he sustained injuries. But Dharmu (DW 1) admitted in cross-examination that he is giving evidence on asking to do so by the

brother of the appellant and he did not tell this incident to anyone before this Statement. So it is clear that this witness is not reliable. If he had actually

witnessed the incident, then he might have told the incident of falling on cultivator of deceased to other villagers. Thus, from the aforesaid discussion it

is proved that appellant inflicted blows of spade on the deceased.

Learned Amicus Curiae for the appellant submitted that even if it is held that appellant accused caused injury on appellant by spade and due to the

said injury deceased Raja died then the act of appellant would not fall under Section 302 IPC but it would at the most fall under Section 304 (1) or 304

(2) IPC. He submitted that appellant had no intention to cause the death of deceased Raja. Appellant went to the spot barehanded.

According prosecution he took up the spade from the spot but it is crystal clear that appellant abused the deceased Raja and took the spade from the

spot and inflicted three blows of spade on deceased Raja. Deceased Raja sustained 3 to 4 wound injuries which were sufficient to cause the death in

the ordinary course of nature. It is proved that there was an intention to inflict that particular bodily injury so the act of the appellant will come within

the purview of Section 302 IPC. The Hon’ble Apex Court, in the case of Virsa Singh Vs. State of Punjab reported in AIR 1958 SC 465 has held

as under:-

“14. To put it shortly, the prosecution must prove the following facts before it can bring a case under Section 300 “thirdlyâ€​.

First, it must establish, quite objectively, that a bodily injury is present.

Secondly, the nature of the injury must be proved; These are purely objective investigations.

Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional,

or that some other kind of injury was intended.

Once these three elements are proved to be present, the enquiry proceeds further and,

Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the

ordinary course of nature. This part of the enquiry is purely objective and inferential and has nothing to do with the intention of the offender.

Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder

under Section 300, “thirdlyâ€. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to

cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction between the two). It

does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily injury

actually found to be present is proved, the rest of the enquiry is purely objective and the only question is whether, as a matter of purely objective

inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a licence to run around inflicting injuries that are

sufficient to cause death in the ordinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face

the consequences; and they can only escape if it can be shown, or reasonably deduced that the injury was accidental or otherwise unintentional.â€​

So the findings of learned Trial Court that appellant committed murder of deceased Raja is based upon proper and legal evidence. So in this view

of the matter in our opinion the learned Trial Court has rightly convicted the appellant for commission of offence.

Accordingly, we do not find any merit in the appeal. The same is accordingly dismissed.

Before parting, we must put on record our reserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High

Court Legal Services Authority shall remit fee of Rs.4000/- (Rs. Four thousand) to the amicus curiae who assisted this court.