Sitaram and Others vs State of Madhya Pradesh

S.K. Palo, J.—1. This appeal under Section 374 (2) of the Cr.P.C is directed against judgment dated 29.1.2002, passed by First A.S.J, Shahdol in S.T. No. 331/2000 whereby the learned Sessions Judge has convicted the appellants for offence under Section 302, 325/149, 148 and 323 I.P.C and sentenced the appellants R.I for life imprisonment and fine of Rs. 1,000/-, R.I for two years and fine of Rs. 500/-, R.I for one year with stipulated default respectively to each of the appellants.

The factual matrix of the case in brief runs as follows:-- On 20.10.2000 Biharil Lal (PW 2) lodged a repot at Police Station Jaitpur that he has certain agricultural land at village Diyagadh regarding which he had quarrel with the accused Chhannu and others. The complainant Biharilal (PW 2) cultivated paddy in the disputed field. On the date of incident, he was at his home, when his sister-in-law informed him that accused Chhannu is taking away the paddy yield from his field by Cart. He along with Shyam (PW 4) deceased Baljeet, Sobhnath (PW 5), Ramdas (PW 1) went to the field to stop the accused persons. When they reached near the field, accused Sitaram and Ramcharan abused them. They ran towards him armed with axe and lathi and threatened them to kill, if they enter into the field. They inflicted injury on the head of the Baljeet because of which he fell on the ground. When Shyam (PW 3), Sobhnath (PW 4) and Ramdas (PW 1) tried to save Baljeet, accused Sitaram shouted to the other accused persons and exhorted to kill them, so that they should not go alive. Accused Mangaldeen, Chhannu, Bharat and Puran armed with lathi, farsa, danda and stone ran after them and started inflicting injuries to the complainant party. They inflicted injury to Baljeet to such an extent that he died there only. Complainant Bihari (PW 2), Shyam (PW 3), Sobhnath (PW 4), Ramdas (PW 1) sustained injuries. Baljeet, Ramdas, Shyam received grievous injuries.

On the death of Baljeet, report Ex. P/2 was lodged. Dead body of Baljeet was sent for post mortem and other injured persons were medically examined. The accused persons were arrested. On their memorandum different weapons were seized. Charge sheet has been filed.

After the case was committed, the learned A.S.J framed charge under Section 148, 302, in alternative 302 read with Section 149, 323 read with Section 149, 325 read with Section 149 of I.P.C.

The accused persons abjured guilt and pleaded innocence.

The learned trial Court having gone through the evidence pronounced the judgment on 29.01.2002 and convicted the appellants and sentenced them as aforesaid.

The appellants, being aggrieved by the conviction and sentence, have challenged the impugned judgment on the following grounds. According to the appellants, the learned trial Court committed grave error in holding them guilty. The evidence produced by the prosecution has not been properly appreciated. The learned trial Court has failed to consider the medical report and statements of the witnesses which are contradictory. The learned trial Court also failed to see that no independent witness has supported the prosecution story. There is no eyewitness to support the prosecution story that the appellants have inflicted injury to Baljeet. Ramdas (PW 1), Bihari (PW 2), Shyam (PW 3), Sobhnath (PW 4) whom the trial Court relied, are all interested witnesses. No conviction could have been based on the basis of their testimony. The learned trial Court also failed to see that there was dispute over the possession of land. Deceased Baljeet, Sobhnath, Ramdas and Shyam had come with sharp edged weapons and attacked the appellant Sitaram. Bharat Singh (PW 13), an independent witness, has stated that the disputed land is in the possession of the appellants. The learned trial Court did not appreciate this statement. Therefore, pray for allowing the appeal and to acquit the appellants.

On the other hand, learned counsel for the State opposed the above contentions and justified the impugned judgment stating that the injured witnesses were present at the time of incident, therefore, their statements cannot be disbelieved. The medical report and post-mortem report also corroborate the prosecution story. Hence, the impugned judgment of conviction and sentence is not called for any interference.

According to Dr. Rajesh Mithoriya (PW 11), a Medical Officer at the Primary Health Centre, on 21.10.2000 dead body of Baljeet was referred to him for post-mortem vide requisition Ex. P/6. He examined the dead body on 22.10.2000 and drawn the post mortem repot Ex. P/6.(***)

(A-Head):--

(i) Lacerated Wound- 4(***)x depth of skull bone, clotted blood in gap, the margins irregular, lying obliquely on the left temporal region.

(ii) Incised wound 2(***)x c.m. x depth of the skull bone having a clean cut mark as furrow, lying vertically on the right parietal lobe. Margins are regular and the mark on the bone is also clean.

(iii) Lacerated Wound:-- 3(***)x 1 cm x depth of skull seen lying horizontally. The clot and dust particles in the gap seen on the posterior aspect of the parietal bone.

(B- Head):--

At the back, there were multiple imprint abrasion (blush black in colour lying in all direction and crossing the vertical column gap on the right and left sides. At the periphery on the left side back over the chest wall. All the bruise had collapsed to form a large single blackish mass. Infiltration of blood in to the tissue. The single mass is swollen on the left side thigh. Tissues are swollen. There was a fracture of the 4th, 5th, 6th, 7th and 8th on the left side. The site at which the five ribs were fractured were different. On the left side penal cavity (***) parietal plensa was discontinued and blood is seen the penal cavity left side. However, the contours of the left and right ribs were unaffected but they were congested.

(C) Right Lower Limb:--

(i) Imprint abrasion 6(***)x3 cm. black coloured lying obliquely on the lower part of the gluteal fold and upper part of thigh.

(ii) Imprint abrasion:-- 5(***)x2 cm.x blush black coloured having two parallel streaks seen lying horizontally on the middle 1/3rd of the thigh positively.

(iii) Lacerated wound:-- 4 cm x 2 cm.x depth of under lying skin the margin tethered and pieces of the underlying fractured bone particle seen in the gap. The injury is seen below the right knee. Destruction shows comminuted compound fracture of the right tivia bone four pieces of bone etc. Tearing destruction of the underlying tissue that above mentioned injuries seem to be caused by hard blunt perpendicular object and all are ant mortem in nature.

(D) Left Lower Limb:--

Abrasion 3(***)grazetype, brown (Blackish Blue) in column seen at the left knee.

(E) Right Upper Limb:--

(i) 1(***)x1 cm. depth of the muscle, spindle shaped by sharp cutting edge obliquely placed the margin everted clear cut seen on the posterior aspect of the right shoulder.

(ii) I/w:-- 1(***)x1 cm x depth of muscle having margins clear cut and everted, horizontally placed and the lethal side of the right arm in the lower the swelling of the corresponding elbow.

(iii) Swelling of the right forearm:-- The swelling is more marked upto the joint of middle and lower 1/3rd. Overlying skin is bluish black, presenting part of the compound fracture of the radius bone 1(***)x1 cm at the middle of the Arm. There is extravasations of blood and tearing of muscles. There is compound fracture of the radius bone and fracture at the lower 1/3rd of the extravasations of blood in the surrounding region, the two ends one displaced and had penetrated the tissues. This injury is also caused by hard and blunt perpendicular object.

(F) Left Upper Limb:--

(i) Bluish black coloured imprint abrasion accompanied with swelling, crackling sound on movements seen at the left arm in the middle region. Infiltration of blood into tissue and swelling of subcutaneous tissue of the infiltration of blood into the underlying muscle. Fracture of spiral of the left humerous bone in the middle 1/3rd.

(ii) Black coloured imprint abrasion 2x 1 c.m. oblique placed on the back of elbow joint.

(iii) Abrasion 2x2 c.m on the ulma border of left forearm.

(iv) Lacerated wound:-- 1.5 c.m. gave out the left thumb. Fracture of promixal phalynix at the middle of the thumb."

The Medical Officer has opined that the cause of death is due to hypo volumic shock and massive destruction of bones. Therefore, it is clear that deceased Baljeet died due to injuries he sustained.

According to Medical Officer Dr. Rajesh Mithoriya, (PW 11) who also examined injured Bihari and drawn Ex. P/10 report. He observed

"(i) Imprint abrasion reddish in colour elevated 3(***)x 1 c.m. on the left lateral aspect of left arm.

(ii) There was pain back on the right hand having no external injury."

12 Dr. Rajesh Mithoria (PW 11) has also examined injured Shyam and submitted report Ex. P/11. In his report, he explained

(i) swelling with crackling surrounding of the left mid arm:-- swelling at the middle 1/3rd of left arm producing crackling sound of the restriction of movement at the shoulder and elbow. There is suspect of fracture on the lower middle 1/3rd of the left humerous bone and advised ex-ray.

(ii) A lacerated wound 2(***)x 5 cm. wide depth of whole skin and apinemosis the occipital tube of the skull. The margins are swellen and tethered having irregular margins.

(iii) Swelling and crackling sound in the left forearm at the middle 1/3rd swelling at the upper middle 1/3rd of left forearm producing crackling sound with the restriction of movement at the elbow and wrist joint.

(iv) Swelling at the right elbow joint accompanying upper 1/3rd up to middle of the right forearm and swelling of the right palm posterior."

The Medical Officer Rajesh Mithoriya, also examined Sobhnath and drawn Ex. P/12 and observed that:--

"(i) Imprint abrasion 6(***)x 2.5 cm. wide red coloured and the elevation of the skin seen lying horizontally on the right chest wall on the back.

(ii) Imprint abrasion:-- 2(***)red in colour the superficial at the right mastoid bone prominence vertically placed behind the right ear.

(iii) Lacerated wound:-- 1 cm x (***) 1/2 cm depth of skin at the back of the left elbow surrounding area is swollen.

(iv) Imprint abrasion:-- 2 c.m wide x 1 c.m. long the abrasion, red in colour and the swelling of the right arm at the lower 1/3rd over the triceps region which was advised for x-ray.

(v) Complaint of back pain:-- all the injuries were caused by hard and blunt object."

All these go to show that the complaint party which include deceased Baljeet received injuries. Baljeet died due to the injuries and other witnesses Bihari (PW 2), Shyam (PW 3), Sobhnath (PW 4) and Ramdas (PW 1) have received injuries including grievous injuries.

Now we may examine the evidence as to who are responsible for causing these injuries and the death of Baljeet?

Ramdas (PW 1) in his statement has reiterated the prosecution story and has stated that when his father Baljeet entered into the field ahead of him, at that time, Shyam and Bihari were also with him. Accused Ramcharan and Chhannu said to them that, if they enter into the field, they will be cut to pieces. When Baljeet tried to intervene and asked the accused persons not to cut the crop, accused Chhannu inflicted injury to him by farsa (a sharp cutting weapon). Accused Ramcharan exhorted and said cut them to pieces. At the same time, he inflicted injury to Shyam on the back of his head, near the neck. Accused Puran used stone and inflicted injury to Ramdas (PW 1) on his left leg. Because of which bone in his leg fractured. He ran away to a nearby house. Accused Sitaram and Mangal caught him, accused Puran inflicted injury on his head by means of stone when he shouted the accused persons left him and fled. He further submits that accused Chhannu by means of Farsa, accused Ramcharan by means of Tangi and accused Puran by means of Bhalla inflicted injuries to Baljeet. They also cut his cheek. His father Baljeet died on the spot. The accused persons also inflicted injuries to Shyam and Sobhnath. Bihari went to the Police Station to lodge report.

Shyama (PW 3) has also supported the prosecution story and corroborated the statement of Ramdas (PW 1). According to him, in the month of Kartik, the date was 20th, his sister-in-law Punia who had gone to the field for cutting grass to be used as fodder for the cattle, came from the field and informed them that, accused Chhannu, Ramcharan, Puran, Bharat, Sitaram and Mangal are cutting the standing crop of their field and taking away by loading it on cart. On hearing this, his father Baljeet along with this witness and others went to the field. They saw the accused persons cutting the standing paddy crop and are loading on the bullock-cart. His father Baljeet tried to stop the accused persons. Accused Chhannu came behind his father and inflicted injury on his head. Accused Ramcharan also inflicted injury by Tangi (a sharp cutting weapon) near his neck. All accused persons then started inflicting injuries to Baljeet. The accused persons including Puran, Bharat, Sitaram, Mangal were armed with Lathi. When this witness shouted that his father is being assaulted, accused persons surrounded him and they inflicted injuries to him. He received injury on the left wrist and armed by lathi. His wrist bone and arm bone were fractured. He also sustained injuries on the head, right hand and waist. On his shout, Bihari and Sobhnath approached accused and ran after them. His father Baljeet died on the spot. This witness became unconscious on the spot. He was taken to the hospital where he regained consciousness. He was admitted in the hospital for eleven days.

Sobhnath (PW 4) his another son Baljeet had gone to their field at Deogadh for cutting grass to be used as fodder. His father Baljeet told him that Punia has been informed that accused persons are cutting the standing paddy crop, therefore, he is going to field to stop them. Baljeet and Shyam went to the field situated at village Deogadh. He and Bihari were behind them. When he reached the spot, he saw the accused persons inflicting injury to Baljeet at that time, Baljeet fell on the ground. Accused Ramcharan armed with axe, accused Chhannu armed with Farsa and accused Mangal, Sitaram, Bharat armed with lathis were inflicted injuries to Baljeet. On seen this witness, accused Mangal, Sitaram and Bharat also ran after him. When he ran away towards Dabda, accused persons returned to the field. The accused persons inflicted injuries by throwing stone and he sustained injuries on both of his arms and head. According to him because of the injuries his father died.

In this regard, the statement of P.W. 2 Bihari is also important. According to him, in the month of Kartik at about 4 p.m, the incident took place. He also supports the prosecution story and describes the incident as described by the other witnesses. He further goes to say that when Shyam tried to save Baljeet, the accused persons inflicted injuries by surrounding him. Accused Puran inflicted injury to him by throwing stone. He further said that the accused persons also inflicted injury to Sobhnath his brother by means of lathi etc. He went to the village and with the help of Narendra, he went to the Police Station by motor cycle and lodged report Ex. P/1.

Saddu Choudhary (PW 5) has also stated that Baljeet informed him that some persons are cutting his standing paddy crop at about 12 noon. On the shout of Baljeet, he approached the field. He saw the accused persons armed with Balam, Farsi and Lathi are assaulting Baljeet. Accused Ram Charan armed with Balam, accused Chhannu and Sitaram armed with Farsa and other accused armed with Lathi were inflicting injuries to Baljeet. When he tried to stop the accused persons, accused Chhannu ran towards him, saying that you have come to witness of incident. Ramdas and Shyam also came there. The accused persons inflicted injuries to them.

The statement of child witness Santosh (PW 6) also has its own importance. According to him, the accused persons are cutting the standing wheat crop. They were trying to take away the crop with the help of the Bullock-cart. When Baljeet went to the field and opposed the same, the accused persons Ramcharan with Tangi, Chhannu with Farsa and others with Lathi inflicted injury to Baljeet. When the other witnesses tried to save him they were also assaulted. When Ramdas was beaten, he ran into a nearby house. Accused Sitaram and Mangaldeen dragged him out and inflicted injuries.

Ex. P/1 is the F.I.R lodged by Bihari PW/2. The F.I.R has been lodged at 7.55 p.m on the same day. It would be appropriate to mention here that the incident took place at about 4.pm and the place of incident is situated at a distance of 30 k.m from the Police Station Jaitpur. Keeping in view the same, the report cannot be said to have lodged belatedly. More so, the contents of F.I.R also corroborate the statements of the witnesses and the medical reports. That being so, we have no reason to disbelieve the genuineness of the F.I.R.

Of course, there are some contradictions and omissions in the statements of the witnesses but these are natural and it removes the possibility of tutoring the witnesses. In the case of State of M.P. v. Hanif Khan & Others , 1999 (2) JLJ 310 a Division Bench of this Court has held that:--

"(***)Evidence Act, 1872-Ss. 60, 145, and 157-minor contradictions in statements of eye witnesses-are natural (***) whole statement cannot be discarded - evidence corroborating medical evidence - can safely be believed.(***)"

We have no reason to doubt the statement of Dr. Rajesh Mithoriya (PW 11), who has given vivid description of the injuries received by the witnesses and deceased Baljeet. The spot map was prepared by S.B. Verma (PW 12) the Sub-Inspector of Police, who was in-charge of Police Station, Jaitpur on the date of incident. He also seized two lathi and baniyan marked with blood and soil, and some mixed with blood from the spot. On 20.10.2000, he seized a Farsa on the basis of memorandum of Ex. P/20 from accused Chhannu by means of Ex. P/26 seizure memo. He also seized a lathi from accused Mangaldeen on the basis of memorandum P/21 by means of seizure memo and Ex. P/27. He seized a Tangi (axe) from accused Ramcharan on the basis of memorandum P/22 vide seizure memo P/28. He also seized lathi from accused Sitaram on the basis of Ex. P/23 a memorandum vide seizure memo No. Ex. P/29. he also seized a danda from accused Puran on the basis of memorandum P/24 from his house vide seizure memo P/30. He also seized a lathi from accused Bharat on the basis of memorandum P/25 vide seizure memo Ex. P/31.

Another independent witness Halimun (Pw/9) has been examined by the prosecution. She has clearly stated that on the date of incident, the accused persons had come to the field and were cutting the standing crop being cultivated by Baljeet since last 20 years and were loading into a bullock-cart. At about 3 p.m Baljeet and his son Shyam came to the field. Accused Ramcharan armed with Tangi, accused Chhannu armed with Farsa and others accused persons armed with Lathi, assaulted Baljeet with these weapons. When they also inflicted injury to Shyam, at that time, Sobhnath, Bihari and Ramdas were also present there. The accused persons also ran after these witnesses. When Ramdas tried to escape and tried to hide himself in her house, the accused persons came there and dragged Ramdas from her house and inflicted injuries to him. Accused Puran inflicted injury by means of stone when accused Sitaram, Mangal, Bharat caught hold of Ramdas. Ramdas was found lying in front of his house, whereas Baljeet and Shyam were lying in the field. In her cross-examination, there are some omissions and contradictions but these contradictions and omissions seem to be not of that nature, which can disturb her credibility.

Another witness examined is Narendra Prajapati (PW 10) who escorted injured Bihari from the village to the police station by means of his motorcycle, to lodge the report. He has said that at about 4 p.m, Bihari came to him and told him about the assault, therefore, he took Bihari on his motor cycle to the Police Station Jaitpur. He also narrated that in his presence, Panchnama Ex. P/8 was prepared after giving him a notice for preparing Panchnama Ex. P/9. On the above circumstances, we have no reason to disbelieve the prosecution evidence.

The minor discrepancies brought into our notice by learned counsel for the appellants are of no such nature which may raise grievous doubt in the prosecution case. In the case of State of U.P. v. M.K. Anthony , AIR 1985 Supreme Court 48, the Apex Court has held that:

"(***)(C) Evidence Act (1 of 1872), S. 3- Evidence (***) "Appreciation of (***) Proper approach-Evidence found generally reliable- Much importance should not be given to minor discrepancies and technical errors- Appellate Court when may interfere. (Criminal P.C. (2 of 1974), S. 386).(***)"

In Appabhai & Another v. State of Gujarat , AIR 1988 Supreme Court 696, it is held that:--

"(***)(B) Penal Code (45 of 1860), S. 300-Murder-Failure of prosecution to examine independent witnesses-Held, prosecution case cannot be thrown out on that ground alone. (Evidence Act (1 of 1872), S. 3)(***)"

As regarding the defence that the disputed land belongs to the appellants and the deceased and the prosecution witnesses were the aggressors. We are unable to accept the same. Bharat Singh (PW 13) has agreed that the land in which the incident took place is Survey No. 313 measuring about 94 decimals. According to the revenue records, this land belongs to accused Ramcharan and Chhannu. Hemraj Singh (DW 1) also supports the defence and says that the land in question belongs to accused Chhannu, which is his neighbouring land. Shambhu (DW 2) also supports the defence version and says that the land in question belongs to the accused persons and he has issued the certificate Ex. D/9, about the land being distributed between the deceased and the accused persons on the basis of partition. This witness has no authority to issue such a certificate.

Hemraj Singh, the neighbour (DW 1) in his cross-examination, is unable to say the area of the disputed land Survey No. 313. He agreed that this land has been partitioned between the Baljeet and the accused persons. But he is unable to say when this land was partitioned. Besides this, we have no reason to disbelieve Halimun (DW 9) an independent witness who says that since last twenty years, deceased Baljeet was cultivating the disputed land. In this background, we hold that the complainant party were not the aggressors nor they were armed with deadly weapons at the time of incident.

We are unable to accept the contentions of learned counsel for the appellants, specially when the statements of prosecution witnesses (***) corroborate with each other, which is also found support by the F.I.R Ex. P/1 and the medical reports and the seizure of deadly weapons used in the scene or crime.

In Paramjeet Singh v. State of Uttarakhand , AIR 2011 Supreme Court 200, the Hon''ble(***) Apex Court held that:--

"(***)11. A criminal trial is not a fairy tale wherein one is free to give flight to one(***)s imagination and mind that "human nature is too fantasy. Crime is an event in real life and is the product of an interplay between different human emotions. In arriving at a conclusion about the guilt of the accused charged with the commission of a crime, the Court has to judge the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case, in the final analysis, would have to depend upon its own facts. The Court must bear in mind that (***) human nature is too willing, when faced with brutal crimes, to spin stories out of strong suspicions.(***) Though an offence may be gruesome and revolt the human conscience, an accused can be convicted only on legal evidence and not on surmises and conjecture. The law does not permit the Court to punish the accused on the basis of a moral conviction or suspicion alone.(***)"

The burden of proof in a criminal trial never shifts and it is always the burden of the prosecution to prove its case beyond the reasonable doubt on the basis of acceptable evidence. In the present case, the prosecution has discharged its onus and has proved by acceptable evidence. The witnesses, who are the sons of deceased, are supported by independent witnesses like Halimun (PW 9) and Dr. Rajesh Mithoriya (PW 11). The accused persons have not sustained any injury whereas the deceased and his sons sustained injuries which are grievous in nature. All these constitute to say that the prosecution has brought home the guilt of accused persons. The fact that the offence was committed in a very cruel, revolting and gruesome manner which may be termed as (***) shocking nature of crime."(***) Therefore, the learned trial Court has awarded the sentences mentioned above. Considering the nature of crime and the manner in which it has been committed, calls for no interference even regarding the quantum of punishment.

Thus, we do not see any cogent reasons to interfere with the findings of the learned trial Court and the sentence imposed therein. The appeal is hereby dismissed.