Shyamlal vs State of Madhya Pradesh

Justice Brij Kishore Dube

Feeling aggrieved by the judgment of conviction and order of sentence dated 22/09/1998 passed by the learned IV Additional Sessions Judge, Morena in Sessions Trial No. 11 of 1983 (State of Madhya Pradesh Vs. Bigha and others), convicting the appellant u/s 302 of IPC and thereby sentencing him to suffer rigorous imprisonment for life with fine of Rs. 1,000/- and in default of payment of fine to suffer additional rigorous imprisonment for six months, the appellant has preferred this appeal u/s 374 of Code of Criminal Procedure, 1973. During the trial, the co-accused, Bigha had died, therefore, the trial stand abated against him. So far as co-accused, Roshan and Shripat are concerned, they have been separately tried before the Juvenile Court. However, the trial proceeded against Sarupa, Shyamlal (present appellant), Devchandra, Lachhi and Foudi.

The undisputed facts are that a well exist in Survey No. 298 of co-accused Bigha. The agricultural land belonging to Ram Singh (since deceased) is adjacent to the agricultural land of co-accused, Bigha and in-between lands of both of them, there is a medh (mound) and over the aforesaid medh stone slabs were being kept.

The prosecution case, in brief, may be narrated as under:

(i) That, on receiving the information of incident on 27/09/82, the Station House Officer, Abhay Singh Kushwah (P.W.10) reached to the village Bhurawali Ka Pura whereat 10 A.M., the complainant, Harvilas Dhakad (P.W.1) lodged a report to the effect that in the morning when he, his brother and other family members were at their house, Bigha Jatav armed with spade (Phawada) and his son, Roshan armed with farsa came to their house and said that despite of saying his father, they will not remove the stone slabs which were being kept at their well. On this, he (Harvilas), Ram Singh (since deceased), Shrilal, Ramesh and Chironji went to their Jiganiawala field Bigha Jatav and his son, Roshan also came there. After reaching to the field, Ram Singh asked Bigha to remove the stone slabs and keep them at his (Bigha) own place. Bigha refused and pushed Ram Singh then, Ram Singh pushed back Bigha. Then, Roshan gave a farsa blow which hit on the head of Ram Singh, Bigha also gave Phawada blow from its back side on the head of Ram Singh. At that juncture, Sarupa armed with Barchhi, Shripat armed with farsa, Shyamlal Jatav armed with iron tipped (mood jadi) lathi, Devchandra armed with lathi, Lachhi armed with farsa, Foudi Jatav armed with kulhadi by running came there, and assaulted them. Shyamlal Jatav and Devchandra Jatav gave lathi blows which hit on the person of Ram Singh, thereafter, Shyamlal stamped lathi with Ram Singh and pushed him into the well, Foudi Jatav caused injury by kulhadi to Ramesh on his head. Sarupa Jatav and Shripat Jatav caused marpeet by lathi and barchhi with Chironjilal and Lachhi dealt farsa blow with Shrilal which hit on his right hand. On this, they shrieked. On hearing their shriek, Babulal Dhakad, Lalpat Dhakad, Bhogiram Dhakad, Chakrapan Dhakad came there and they by tieing a rope brought out Ram Singh from the well and by that time he succumbed to the injuries.

(ii) That, on the basis of aforesaid oral report of the complainant, Harvilas Dhakad (P.W.1), Dehati Nalishi at Crime No. 0/82 (Exhibit P/1) was recorded by Abhay Singh Kushwah (P.W.10). The criminal law was triggered and set in motion.

(iii) That, the investigating agency prepared inquest (Exhibit P/2) on the dead body, prepared spot map (Exhibit P/4) and seized simple and blood stained earth (Exhibit P/14). The injured Ramesh, Chironjilal and Shrilal were sent to for medical examination to Government Hospital, Kolaras. The dead body of Ram Singh was also sent to for post mortem (Exhibit P/12) to the Government Hospital, Kolaras. Investigating agency also recorded the statements of the witnesses who were acquainted with the facts of the offence;

(iv) That, on 28/09/82 at 8.00 A.M., Dr. R.B. Agarwal (P.W.5), conducted the post mortem of the deceased at Primary Health Centre, Kolaras and vide report (Exhibit P/13) opined that cause of death was syncope and mode of death was homicidal, and

(v) That, during investigation, the accused have been arrested and on the basis of their disclosure statements the weapons used in the commission of offence, i.e., Phawada, Kulhadi, farsa,& lathis were recovered. On completion of the investigation, a charge sheet was filed against eight accused persons before the Judicial Magistrate, First Class, Kolaras which on its turn, committed the case to the Court of Sessions from where it was received by the Trial Court for the trial.

The learned Trial Judge on the basis of the material placed on record framed charge punishable under Sections 147, 148, 302/149 and 324/149 of IPC against all the accused including the appellant. All the accused persons including the appellant have denied the charge and claimed to be tried. The defence of the accused persons including the appellant is of false implication and the same defence, they set forth in their statements recorded u/s 313 of the Code of Criminal Procedure, 1973.

To bring home the charge, the prosecution has examined as many as 10 witnesses and placed Exhibits P/1 to P/30, the documents on record. The accused have examined Jagdish (D.W.1) and Ramswaroop (D.W.2) in their defence.

The learned Trial Judge on the basis of evidence placed on record came to hold that charge u/s 302 of IPC has been proved against the appellant as a result of which convicted him and passed the sentence as mentioned hereinabove. However, the appellant has been acquitted from the charge under Sections 147, 148, 149, 324/149 of IPC.

The learned Trial Judge on the basis of same set of evidence placed on record came to hold that charges levelled against accused Sarupa, Devchandra, Lachhi and Foundi have not been proved and eventually, acquitted them from those charges.

The State has not preferred any appeal against the acquittal of the appellant under Sections 147, 148, 149 and 324/149 of IPC and acquittal of the co-accused, Sarupa, Devchandra, Lachhi and Foudi from all the charges, therefore, the findings regarding acquittal recorded by the learned Trial Court had attained finality.

In this manner, this appeal has been preferred by the appellant assailing the judgment of conviction and order of sentence passed by the learned Trial Court.

Legality and propriety of the impugned judgment of conviction has been challenged by the appellant on the ground of mis-appreciation of the evidence on record. Learned counsel for the appellant, Shri A.K. Jain, has submitted that the appellant has been falsely roped in the case. As per case of the prosecution, all the acquitted co-accused persons and the appellant have committed marpeet with the deceased and other persons while four co-accused persons were acquitted. The facts and evidence are very much interlinked that they cannot be separated from each other in order to hold that only four acquitted co-accused persons were falsely implicated and not the present appellant. Learned counsel has further contended that there were material contradictions in the evidence of the eye-witnesses and also discrepancy between the occular evidence and the medical evidence as no external mark of injury was seen by the Autopsy Surgeon and there was no cogent evidence to establish the ingredients of offence u/s 302 of IPC against the appellant. The learned Trial Court erred in convicting the appellant, hence, this appeal be allowed and the appellant be acquitted from the charge. The learned counsel cited Prem Singh Vs. State of Punjab, in support of his contention.

An alternate submission has also been put-forth by the learned counsel for the appellant that there was no intention to kill the deceased and the incident had taken place all of a sudden and in heat of passion and therefore, the case would come within the purview of Exception (IV) to Section 300 of IPC and, therefore, his conviction be altered from Section 302 to section 304 Part-II of IPC and sentence may be reduced to the period already undergone by the appellant as he has already undergone about four years of the sentence including the period of remission.

On the contrary, Shri Raghavendra Dixit, learned Public Prosecutor supported the impugned judgment and findings arrived at by the learned Trial Court and submitted that the conviction in question is well merited. The learned Public Prosecutor has placed reliance on the decision of the Apex Court, Lokesh Shivakumar Vs. State of Karnataka (2012) 3 SCC 198.

In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to advert to the evidence available on record.

In the present case, four persons have been examined as eye-witnesses, they are; Harvilas (P.W.1), Ramesh (P.W.3), Chironjilal (P.W.4) & Babulal (P.W.6). Needless to say, Ramesh (P.W.3) is the real brother and Harvilas (P.W.1) and Chironjilal (P.W.4) are the cousin (brothers) of the deceased, Ram Singh. Since, Harvilas (P.W.1), Ramesh (P.W.3), Chironjilal (P.W.4) are members of one family and thickly related either by blood or by relation to the deceased, Ram Singh, therefore, their evidence is required to be closely scrutinized with great care and precaution.

The FIR (Dehati Nalasi), Exhibit P/1 was lodged by Harvilas (P.W.1). The post-mortem of the body of the deceased was conducted by Dr. R.B. Agrawal (P.W.5) and his post-mortem examination report is Exhibit P/13.

On bare perusal of testimony of Autopsy Surgeon Dr. R.B. Agrawal (P.W.5) and his post-mortem report (Exhibit P/13), we find the following injuries on the person of the deceased, Ram Singh:

"1. Incised wound over Head above the occipital protrubrance Middle, Transversely 6 cm x 1 cm x depth upto bone. There is fracture on skull bone at the site of injury, not in pieces form. No bleeding over Brain. No injury to Brain caused by sharp object.

Contusion over left mandible 12 cm x 6 cm caused by hard and blunt object.

There is rupture of arteries of small intestine. 3 feet intestine filled with blood blackish in colour. There is no external injury over abdomen. But this may occur due to violent blows over naval region, causing rupture of intestinal vessels. This injury cause sudden stoppage of heart and leads to death due to shock."

According to Autopsy Surgeon Dr. R.B. Agrawal (P.W.5) death was caused due to syncope as a result of violent blow over abdomen. The mode of death was homicidal.

According to Harvilas (P.W.1), who is also author of the FIR (Exhibit P/1) on the day of incident at about 7.30 AM Bigha armed with spade and his son Roshan armed with farsa came to his house and told that despite of saying his father, they will not remove the stone slabs kept over medh (mound) as they are being kept on their side, thereafter, they went to their field. He, Ram Singh, Chironjilal, Shrilal (Siriya) and Ramesh also went to their Jiganiawala field. After reaching there, Ram Singh asked to Bigha to remove the stone slabs from his field and keep them at his (Bigha) own place. Bigha refused by saying that stone slabs have been kept at his own place and pushed Ram Singh, then Ram Singh pushed back Bigha. On this, Roshan gave a farsa blow which hit on the head of Ram Singh, Bigha also gave spade blow from its blunt side on the head of Ram Singh. At the same time, Sarupa armed with barchhi, Shripat armed with farsa, Lachhi armed with farsa, Foudi armed with kulhadi, Shyamlal armed with iron tipped lathi, Devchand armed with lathi arrived from the sugarcane field of Bigha and abused by saying to encircle and kill them. Then, Sarupa dealt barchhi blow which hit over the back of Chironjilal, Shripat dealt farsa blow which hit on the left wrist of Chironji. Devchand Jatav dealt a lathi blow over the right side of back of Ram Singh, Lachhi dealt farsa blow over the right hand of Siriya, Foudi dealt axe blow over the head of Ramesh as a result of which they sustained injuries. Shyamlal stamped lathi on the abdomen of Ram Singh and pushed him into the well. Harvilas (P.W.1) has further stated that Babulal, Manful, Chakrapan and Bhogiram arrived there and witnessed the incident and intervened, then all the accused persons fled away from the place of incident. Babulal and other persons brought out Ram Singh from the well and by that time, he succumbed to the injuries. Police also reached there and then, he lodged report to the police.

On a close scrutiny of testimony of Harvilas (P.W.1) in respect of the role attributed to the present appellant, we find that the present appellant stamped lathi on abdomen of Ram Singh and pushed him into the well as a result of which deceased, Ram Singh fell down into the well. Babulal and others brought out Ram Singh from the well and found that he had died. Nothing could be elicited in the cross-examination so as to suggest that he was interested in securing the conviction of the appellant on absolutely false ground. The aforesaid testimony of Harvilas (P.W.1) is corroborated by promptly lodged Dehati Nalasi (Exhibit P/1).

The aforesaid evidence of Harvilas (P.W.1) is also corroborated by testimony of Ramesh (P.W.3), Chironjilal (P.W.4) and Babulal (P.W.6). Babulal (P.W.6) is an independent witness.

Learned counsel for the appellant could not point out that how and in what manner, the evidence of Harvilas (P.W.1), Ramesh (P.W.3), Chironjilal (P.W.4) & Babulal (P.W.6) should be disbelieved in respect of the appellant, Shyamlal, on the other hand, we find that their testimony inspires full confidence.

As to any discrepancy between the ocular evidence and the medical evidence, we find none. All the four eye-witnesses, namely, Harvilas (P.W.1), Ramesh (P.W.3), Chironjilal (P.W.4) & Babulal (P.W.6) deposed that the appellant, Shyamlal stamped lathi on the abdomen of the deceased and pushed him into the well. It is seen above that though no external mark of injury was found in the post-mortem examination over the abdomen of the deceased, however, there was rupture of arteries in small intestine, three feet intestine filled in blood. There was no external mark of injury over abdomen, but according to Dr. R.B. Agrawal (P.W.5), aforesaid internal injury could occur due to violent blows over abdomen.

In this context we may refer to MODI''s Medical Jurisprudence and Toxicology, 23rd Edition 2006, Page Nos. 830 and 832, which reads as under:-

Abdomen

xxx

''Contusions of the abdominal parietes are produced by a blunt weapon, a kick, a carriage wheel passing over the abdomen, crush accidents or by a fall. It is not necessary that they should show any external mark of injury on the skin.''

xxx

Intestines

Rupture of the intestines occurs frequently from violent blows, kicks, falls, vehicular accidents, crushes or compressions in the navel region. In many cases, no mark of injury on the abdominal wall is visible, though in addition to the rupture a great deal or contusion and laceration of the intestines may be present.

xxx."

(Emphasis supplied)

We, therefore, fail to see any discrepancy between the medical evidence and the ocular evidence. On the contrary, the medical evidence tends to corroborate the eye-witness account of the occurrence.

It is well settled that the ''maxim Falsus in uno falsus in omnibus'' has no application in India and the witness or witnesses cannot be branded as lier(s). It is the duty of the Court to separate grain from the chaff. Where grain can be separated from chaff, it would be open to the Court to convict the accused, therefore, learned Trial Court did not commit any error in partly disbelieving and partly believing the eye-witnesses, Harvilas (P.W.1), Ramesh (P.W.3), Chironjilal (P.W.4) & Babulal (P.W.6). In this context, we may place reliance on the decision of the Apex Court in the case of Janardan Singh Vs. State of Bihar, (2009) 16 SCC 269. The relevant para is as under:-

"6. In such cases, as noticed earlier, a duty is cast upon the court to sift the evidence and after a close scrutiny with proper care and caution, to come to a judicial conclusion as to who out of the accused persons can be considered to have actually committed the offence. This Court in Deep Chand and Others Vs. State of Haryana, pointed out that the maxim falsus in uno, falsus in omnibus is not a sound rule to apply in the conditions in this country and, therefore, it is the duty of the court in cases where a witness has been found to have given unreliable evidence in regard to certain particulars, to scrutinise the rest of his evidence with care and caution. If the remaining evidence is trustworthy and substratum of the prosecution case remains intact, then the court should uphold the prosecution case to that extent. To the same effect is the judgment of this Court in Ranbir and Others Vs. State of Punjab,

In the case of Lokesh Shivakumar (supra), it has been observed that acquittal of two co-accused could not effect the case of other co-accused, if proved from the prosecution evidence.

In Prem Singh (supra), relied upon by the learned counsel for the appellant, the Apex Court has observed as under:

"2. There were only two eye-witnesses to the incident in which Satnam Singh met with his death. They were his brothers Sadhu Singh P.W.2 and Gurnam Singh P.W.3. The evidence of both these witnesses in regard to the participation of the four other accused was rejected both by the Sessions Court as well as by the High Court as unreliable, as it was falsified by the medical evidence. These two witnesses had stated that spear injuries were caused to Satnam Singh and Gurnam Singh by the four other accused, but the medical evidence revealed that there were no such injuries. Now, if the evidence of these two witnesses was disbelieved by both the lower courts in regard to participation by the four other accused in the incident, it is difficult to see how it could be accepted so far as the role assigned to the appellant is concerned. The conviction of the appellant is founded solely on the evidence of these two witnesses whose testimony cannot be said to inspire confidence in the mind of the Court. Moreover, it is interesting to note that though, according to the evidence of Sadhu Singh, there were two teachers present at the time of the incident, who could have given evidence as independent witnesses, neither of them was examined by the prosecution. The prosecution chose to rest its case entirely on the evidence of Sadhu Singh and Gurnam Singh, who were brothers of Satnam Singh. We do not think it safe to convict the appellant on the basis of the evidence of Sadhu Singh and Gurnam Singh alone."

In view of the facts and circumstances of this case, the decision relied upon by the learned counsel for the appellant has no assistance to the appellant.

In the light of the above discussion, according to us, learned Trial Court did not commit any error in holding that the deceased, Ram Singh had died on account of causing injury by the appellant.

We shall now advert ourselves to the alternate submission put-forth by the learned counsel for the appellant. It is borne out from the testimony of eye-witnesses, Harvilas (P.W.1), Ramesh (P.W.3), Chironjilal (P.W.4) & Babulal (P.W.6) that the alleged incident was started with quarrel between the deceased, Ram Singh and Bigha (who had also died) on account of removal of stone slabs. During the course of the aforesaid quarrel, the appellant stamped lathi to the deceased, which hit over his abdomen and pushed him into the well. Thus, looking to the medical evidence, we find that there was no intention of the appellant to kill the deceased and also there was no premeditation and pre-plan to kill the deceased. The appellant has stamped lathi on the abdomen of the deceased as a result of which arteries in small intestine ruptured, therefore, the appellant was having the knowledge that by his act, the deceased may die. Hence, the present case would rest u/s 304 Part-II of IPC, thus, we hold that the appellant has committed the offence punishable u/s 304 Part-II of IPC.

Resultantly, this appeal is allowed in part. The conviction and sentence of the appellant is hereby set-aside instead, thereof he is guilty of the offence punishable u/s 304 Part-II of IPC and accordingly, we convict the appellant u/s 304 Part-II of IPC and direct him to undergo 5 years rigorous imprisonment with fine of Rs. 1,000/-, and in default of payment of fine to suffer additional three months rigorous imprisonment.

The appellant, Shyamlal is on bail. His bail bonds shall stand cancelled after his surrender before the learned Trial Court on or before 9th July, 2012 failing which the learned Trial Court shall issue arrest warrant against him and also notice to his surety and may pass necessary orders against him. Learned Trial Court is directed to take the appellant into custody, if he has not served out the aforesaid jail sentence as awarded by this Court and send him to jail to serve out the remaining part of sentence.

Resultantly, the appeals stand allowed in part to the extent indicated hereinabove. The Registry is directed to send a copy of this judgment immediately alongwith the record to the learned Trial Court, for necessary compliance.