Pramod Kholiya vs Devi Ahilya University, Indore and another

The appellants have preferred the present appeals against the judgment dated 14.12.1999 passed by Additional Sessions Judge, Ganj Basoda, District Vidisha in Sessions Trial No.20/1998, whereby the appellant- Raghunath has been convicted for commission of offence punishable under Sections 302 read with Section 34 IPC and 324 IPC and sentenced to life imprisonment with fine of Rs.5000/-, and 6 months rigorous imprisonment with fine of Rs.1000/- respectively, with default stipulation. The appellant Balram has been convicted for commission of offence punishable under Section 302 read with Section 34 IPC and sentenced to life imprisonment with fine of Rs.5000/- with default stipulation.

The facts of the case, in short, are that on 25.11.1997 at about 7:30 am, when complainant Harnam Singh, Bablu and Devendra alongwith their cattle were going to forest outside the village Tyonda, near Puliya, the accused persons Imrat Singh Yadav, Raghunath, Balram, Ramesh and Khachora were standing with bullock-cart. Accused Shankarlal was also standing there. As soon as Bablu''s cattle passed from the Puliya, Ox of accused Imrat Singh Yadav brayed, due to which accused Raghunath gave a blow of axe on the head of Bablu and he fell down on the ground. After that Devendra ran away to the house and came back alongwith his father Ramsingh, brother Munna. Then the accused Balram gave a blow of axe on the head of Ramsingh as a result of which he fainted down. When Harnam Singh came to rescue Ramsingh then accused Imrat Singh Yadav inflicted lathi blow on his head and Shankarlal hit Munna Lal by lathi blow on his leg. Ramesh Dhanak, Khachora Adiwasi, Machal Singh Yadav, Mohan Singh Yadav and Kamlesh Yadav saved the injured persons. Ultimately the complainant Harnam Singh along with injured Ramsingh, Munnalal reached at the Police Station Tyonda. All the injured persons were sent for medical examination. Dr. B.P.Sharma (PW/9) examined the injured Harnam Singh, Bablu, Munnalal and Ramsingh and gave his report Ex.P/6 to Ex.P/9. The injured persons were referred for further investigation and treatment to the District Hospital Vidisha but on the way, Ramsingh died when he was being carried to Vidisha hospital. The dead body of the deceased Ramsingh was sent for post-mortem. Dr. Shekhar Jalvankar (PW/12) performed the post-mortem on the body of the deceased Ramsingh and gave a report Ex.P/11. He found lacerated wound on left frontal parietal region of head of the deceased and fracture was also there. According to him, the deceased died due to extradural haemorrhage shock and the death of the deceased Ramsingh was homicidal.

During the investigation, statements of Munnalal, Machal Singh, Kamlesh, Bablu, Devendra, Dilawar Khan and Harnam Singh were recorded by Station House Officer Shri Jitendra Singh Tomar. On the next day he went to the spot and prepared a spot map Ex.P/14. The accused persons were arrested and on interrogation, they gave information about the various weapons. Axes were recovered from the appellants Raghunath and Balram with recovery memos Ex.P-18 and P-19 respectively. All the recovery articles received from the hospital were sent for Forensic Science examination. The statements of other witnesses were also recorded. After due investigation, the charge-sheet was filed before the Judicial Magistrate First Class, Ganj Basoda who committed the case to the Court of Session Judge, Vidisha and ultimately, it was transferred to the Court of the Additional Sessions Judge, Ganj Basoda, District Vidisha.

The appellants abjured their guilt. They took a plea that they have been falsely implicated due to enmity of Panchayat Election. At the time of incident, Harnam, Babloo and Munnalal also caused marpeet with the appellant Raghunath who also lodged a report against the complainant party. The appellant Raghunath was medically examined by Dr. B.P.Sharma but the police has not taken any action against the complainant party. In defence, they have examined Shayamlal (DW/1), Munnalal Sharma (DW/2), Dr. B.P.Sharma (DW/3), Alauddin (DW/4), Mohan Singh (PW/5) and Narayan Prasad (DW/6).

Trial Court after considering the evidence adduced by the parties convicted the accused Imrat Singh and Shankar Singh for the offence punishable under Section 323 IPC and sentenced them to two months rigorous imprisonment which they have already undergone, whereas the appellants have been convicted and sentenced as mentioned above.

Learned counsel for the appellants submitted that the trial Court has erred while relying the statements of the witnesses who were close relatives and interested witnesses. There are major contradictions and discrepancies in the statements of interested witnesses and their statements have been partly disbelieved by the trial Court even then the trial Judge had adopted the theory of "Choose and pick", which is contrary to the principle of law. On the same evidence against all the accused, the trial Court has acquitted two accused persons for the offences punishable under Sections 302 IPC and convicted the rest accused persons, which is against the principle of law and he prayed for that the appeal be allowed and the appellants be also acquitted.

Learned Public Prosecutor for the respondent/ State supported the conclusion recorded by the trialRA No.89/2000

Court and prayed for rejection of the appeal.

We have heard the learned counsel for the parties and perused the record.

In the present case, it is to be considered as to whether the death of the deceased Ramsingh was homicidal in nature or not?. In this connection, evidence given by Dr. Shekhar Jalvankar (PW/12) is important, who performed the post-mortem on the body of the deceased Ramsingh and gave a report Ex.P-11. He found stitched wound over left frontal parietal region length 8 cm.

On opening the body, Dr. Shekhar Jalvankar (PW/12) found that left frontal parietal bone of the deceased was broken and extradural haemorrhage was present in brain. Although he has not given any definite opinion regarding the nature of death, but looking to the injuries received by the deceased it cannot be a case of suicide. Similarly, such injuries could not be caused by the deceased himself. There is no material on record which indicates that the injuries could be sustained by him in any accident and therefore, it is presumed that the death of the deceased was homicidal in nature.

Witnesses Munnalal (PW/1), Machal Singh (PW/2), Kamlesh (PW/3), Bablu (PW/5), Devendra (PW-6), Harnam Singh (PW/7) and Khachora (PW/13) were examined as eye-witnesses but Khachora (PW/13) has not stated anything regarding the injuries caused to the deceased Ramsingh. Bablu (PW/5) deposed that 10 months ago at about 7:00 AM he alongwith his cattle was going to the forest. When he reached near Puliya, accused Raghunath was sitting in his bullock-cart. The accused persons Balram Singh, Shankar Singh and Imrat Singh were also standing there. As soon as his cattle passed from Puliya, Ox of Raghunath brayed, due to which Raghunath abused him and inflicted a blow of axe on his head. Thereafter, Balram Singh, Imrat Singh and Shankar Singh also beat him by Axe, Lathi and Luhangi. At that time, his younger brother Devendra was also alongwith him. His father Ramsingh was following him, who asked the accused persons that why they are beating his son then Raghunath Singh gave a blow of Kharerua on the head of Ramsingh, as a result of which, he fell down on the ground, at the same time, Balram Singh gave a blow of axe on the head of Ramsingh. Imrat Singh gave a blow of Lathi on the right hand of Ramsingh and Shankar Singh also gave a blow of Luhangi on the backside of head of Ramsingh due to which he sustained injury. After receiving the information regarding the incident, his brother Harnam Singh also reached on the spot then Imrat Singh gave a Lathi blow on his head and right hand''s fingers. Hearing the sound of the quarrel, as soon as his brother Munnalal came to the spot, Shankar Singh inflicted Luhangi blow on the right leg of Munnalal.

Kamlesh (PW/3) and Devendra Singh (PW/6) supported the statement of Bablu (PW/5), who is the injured person and presence of Kamlesh (PW/3) and Devendra (PW/6) is mentioned in the FIR, therefore, their presence on the spot cannot be disbelieved.

According to Bablu, Harnam and Munnalal reached on the spot later on. Harnam Singh (PW/7) has also stated in his examination that after receiving the information that accused persons are beating Bablu and Ramsingh, he reached on the spot. He admitted in para 2 of the cross-examination that when he reached on the spot, the incident had taken place and the accused persons have already fled away from the spot thus it is clear that Harnam Singh was not present at the time of the incident. Munnalal (PW/1) has also admitted in para 13 of the cross-examination that he did not see that who has caused injury to Ramsingh because he had run away from the spot.

Although Kamlesh (PW/3), Bablu (PW/5), Devendra (PW/6) and Harnam Singh (PW/7) stated that the accused Raghunath gave a blow of Kharerua on the head of the deceased Ramsingh but this statement of these witness cannot be accepted because it did not mention in the F.I.R. or in the statements of witnesses recorded under Section 161 of Cr.P.C. that Raghunath has caused any injury to the deceased. As per the post-mortem report, only one injury was found on the head of the deceased and according to FIR as well as the statements of the witnesses, this injury has caused by accused Balram Singh giving axe blow on the head of the deceased Ramsingh.

Learned counsel for the appellants have submitted that there is a contradiction between the statements of eye-witnesses Kamlesh (PW/3), Bablu PW/5 and Devendra (PW/6) that whether various blows were given to the deceased Ramsingh by accused Raghunath Singh, Balram Singh, Imrat Singh and Shankarlal when he fell down on the ground or those blows were given when he was standing. However, such minute details cannot be expected from the witnesses. There is a consistency in the evidence of all the above witnesses about the assault done by the appellant Balram Singh. It is clear that only one blow was given by the appellant Balram Singh on the head of the deceased Ramsingh. If such blows were given by the appellant/accused Raghunath Singh and Imrat Singh then such blows were corroborated with the post-mortem report. As per the post-mortem report, the deceased Ramsingh had received only one wound on his left frontal parietal region and there is no allegation in the F.I.R. as well as in the statements of the witnesses that the appellant Raghunath or Shankar lal had given any blow by any weapon to the deceased Ramsingh.

The FIR was lodged after seven hours and 45 minutes of the incident whereas the spot was 25 Kilometers away from the Police Station and the complainant Harnam and his brother, who were also injured in the incident, had to arrange for transportation etc. so that the deceased Ramsingh whose condition was not good, could be taken to the Police Station and the Hospital. In these circumstances, the FIR was lodged within a reasonable period.

It is settled principle of law that in India theory of "falsus in uno falsus in omnibus" is not applicable and the Court is duty bound to extract the truth from the statements of the eye-witnesses. Only on the basis of some contradiction in the statements, with regard to some accused, the whole statements cannot be thrown out. For this, reliance may be placed on the decision of the Apex Court in the case of Kalegura Padma Rao and another vs. The State of A.P ., reported in AIR 2007 SC 1299, wherein it has been held as under :-

"To the same effect is the decision in State of Punjab v. Jagir Singh (AIR 1973 SC 2407) and Lehna v. State of Haryana (2002 (3) SCC 76). Stress was laid by the accused- appellants on the non-acceptance of evidence tendered by some witnesses to contend about desirability to throw out entire prosecution case. In essence prayer is to apply the principle of "falsus in uno falsus in omnibus" (false in one thing, false in everything). This plea is clearly untenable. Even if major portion of evidence is found to be deficient, in case residue is sufficient to prove guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction can be maintained. It is the duty of Court to separate grain from chaff. Where chaff can be separated from grain, it would be open to the Court to convict an accused notwithstanding the fact that evidence has been found to be deficient to prove guilt of other accused persons. Falsity of particular material witness or material particular would not ruin it from the beginning to end. The maxim "falsus in uno falsus in omnibus" has no application in India and the witnesses cannot be branded as liar. The maxim "falsus in uno falsus in omnibus" has not received general acceptance nor has this maxim come to occupy the status of rule of law. It is merely a rule of caution. All that it amounts to, is that in such cases testimony may be disregarded, and not that it must be disregarded. The doctrine merely involves the question of weight of evidence which a Court may apply in a given set of circumstances, but it is not what may be called ''a mandatory rule of evidence''. ( See Nisar Ali v. The State of Uttar Pradesh (AIR 1957 SC 366)." 17. It is proved beyond doubt that the appellant Balram Singh gave a blow of axe on the head of Ramsingh as a result he received one lacerated wound on the left parietal region and fracture was found there.

Learned counsel for the appellants have also submitted that it is alleged against the appellant Balram that he has assaulted by axe on the head of the deceased Ramsingh but no incised wound was found due to impact. However, since the deceased Ramsingh had a Safi then it is possible that sharp edge of axe could not make its impact of sharp edge on the skin or it is possible that axe of Balram Singh was not so sharp and, therefore, lacerated wound could be caused. Hence, the injury clearly indicates that it could be caused by an axe wherein edge of axe was not sharp. Under these circumstances, the medical evidence completely supports the version of eye-witnesses and it is proved beyond doubt that the appellant/accused Balram Singh gave a blow of axe on the left frontal parietal region on the head of the deceased Ramsingh.

Learned counsel for the appellant have also submitted that when the incident took place, the appellants had no reason to kill the deceased Ramsingh. Though it is alleged that they suddenly attacked upon him. However, it is mentioned by all the eye-witnesses that after hearing the shouts of Bablu, they reached on the spot where quarrel took place between the appellants and Bablu. Hence, it is submitted that the appellants were not at all interested to cause the death of the deceased Ramsingh. It would be apparent that the appellant Balram gave a single blow on the head of the deceased Ramsingh and he did not repeat the assault. Therefore, it would be apparent that he assaulted on the vital part of the deceased Ramsingh but avoided repetition whereas it cannot be said beyond doubt that the appellants were interested to kill the deceased Ramsingh.

Though the charges of Section 34 of IPC were framed against both the appellants but their act appears to be individual and, therefore, the appellant Raghunath shall not be convicted of offences under Sections 302 or 304 (Part-II) of IPC for the death of the deceased Ramsingh. From the prosecution story, it is clear that the incident has taken place, all of sudden, and the appellants/accused were not having any intention for causing death of the deceased Ramsingh.

In view of the aforesaid facts and circumstances of the case, it cannot be said that accused Balram and Raghunath had a common intention to kill the deceased Ramsingh. If they had no intention to kill the deceased, their common intention cannot be presumed for their offence of culpable homicide not amounting to murder. In the case of Sasi alias Chalil Sasi vs. State of Kerala, (2000) 10 SCC 55 wherein the Hon''ble Apex Court has held that when the accused had no intention to kill the deceased and he gave a single blow on the head of the deceased, the case of the accused shall fall within the purview of Section 304 (Part-II) of IPC. The Hon''ble Apex court in the case of Bunnilal Chaudhary vs. State of Bihar (2007) 1 SCC (Cri) 66 observed that if the doctor does not opine that the injuries found to the deceased were sufficient to cause his death in natural course of his life or no injury was such that the death was likely to be caused, in such case if accused was not intended to kill the victim then the offence shall fall within the purview of Section 304 (Part-II) of IPC.

Similarly in the case of Vineet Kumar Chauhan vs. State of UP (2008 (1) CAER [SC] 109), the Hon''ble Apex Court has held that if there was no enmity between the parties and in a sudden quarrel fire was done and bullet hit the deceased on her chin then it cannot be said that the accused was intended to kill the deceased and the offence shall fall within the purview of culpable homicide not amounting to murder and it shall be punishable under Section 304 (Part-II) of IPC.

In the present case if factual position of the case is considered then the aforesaid law laid down by the Hon''ble Apex Court is accepted. Hence, the accused Raghunath cannot be convicted of offence under Section 302 of IPC or any other lower offence of similar nature either directly or with the help of Section 34 IPC. Therefore, the trial Court has committed an error in convicting the appellant Raghunath for the offence under Section 302 read with Section 34 of IPC.

So far as offence under Section 324 of IPC is concerned, it would be apparent that the witness Bablu was found injured. According to the eye-witnesses, the appellant Raghunath gave a blow of axe on the head of Bablu. Dr. B.P.Sharma (PW/9) while recording the MLC Ex.P/7 found that Bablu sustained a incised wound, therefore, the trial Court has not committed any error in convicting the accused Raghunath for the offence under Section 324 of IPC.

So far as the sentence is concerned, the appellant Raghunath who is to be convicted for the offence under Section 324 IPC, has remained in custody for a longer period and he has already suffered the sentence imposed by the trial Court for the offence under Section 324 of IPC.

On the basis of aforesaid discussion, the appeal filed by the appellants can be partly allowed. The appeal of the appellant Raghunath is hereby allowed to the extent that his conviction under Section 302 read with Section 34 of IPC is set aside and he is acquitted from the aforesaid charge. The appellant Raghunath would be entitled to get the fine amount back, if he had deposited for the said offence before the trial Court. However, he is convicted for the offence under Section 324 of IPC and sentence him to the imprisonment of 6 months which has already been suffered by him during the trial and appeal. He is on bail. His bail bonds shall stand discharge.

The appeal filed by the appellant Balram is hereby partly allowed and his conviction as well as sentence for the offence under Section 302 read with Section 34 of IPC is hereby altered to the offence under Section 304 Part-2 of IPC and he is sentenced to the period of five years'' imprisonment with fine of Rs.5000/-. The custody period of appellant No.2 Balram shall be adjusted towards the sentence imposed by the trial Court.

The appellant No.2 Balram is on bail. His bail bonds are now cancelled. He is directed to surrender before the trial Court without any delay so that he may be sent to jail for execution of remaining part of his jail sentence.

A copy of the judgment be also sent to the trial Court along with the record for information and to prepare the supersession warrant of appellant No.2 Balram and to get the sentence executed by him.