Babulal v. The State of Madhya Pradesh

Judgment

14/02/2012 29/02/2012 Per: Rakesh Saksena, J. J U D G M E N T

1. Since both the aforesaid appeals arise out of the common impugned judgment, this judgment shall govern the disposal of both the appeals.

2. Appellants/accused have filed the present appeals against the judgment dated 19th June 2001, passed by Special Judge [Scheduled Castes/Scheduled Tribes (Prevention of Atrocities) Act], Sagar, in Special Sessions Trial 2 No.179/2000, convicting them under Section 302/34 of the Indian Penal Code and sentencing them to life imprisonment with fine of Rs.1000/-. In default of payment of fine, further rigorous imprisonment for one month.

3. In short, the prosecution case is that on 2.11.1999 at about 1.00 pm complainant Munnibai (PW-1) alongwith her husband Haridas (deceased) had gone from Khurai to Jaruakheda to fetch fuel woods. In the evening, they were sitting at Platform No.2 of Jaruakheda Railway Station and were eating food. At that moment, accused Babulal and Mannu @ Manohar, who happened to be the friends of accused Ramesh, reached there and threatened Haridas that they will do away with him as he used to harass Ramesh. Both the accused dragged him away by catching hold of his muffler. Munnibai tried to save him, but Babulal Pushed her and accused Mannu dealt a knife blow in the abdomen of Haridas. Babulal caught hold of the hands of Haridas from behind and told Mannu that he should not remain alive, then Mannu dealt several blows to him. He fell down smeared in blood. Munnibai shouted, but nobody came to rescue him. She rushed to the office of Station Master and informed him that Mannu and Babu had killed her husband. Station Master asked her to lodge a report with the police. On getting intimation from Railway Station, Jaruakheda, Sub Inspector of GRP, Sagar, K.D. Sharma (PW-16) reached at the Railway Station and recorded Dehati Nalishi (Ex.P/1) on the information given by Munnibai. According to her, accused Ramesh's nephew Meharban had committed mischief with her daughter Babita due to which there had been a quarrel. A report was lodged against Meharban. Therefore, Ramesh entertained grudge against her husband. Because of that animosity, he got her husband killed by Babulal and Mannu.

4. Sub Inspector K.D. Sharma (PW-16) recorded Dehati Murg (Ex.P/2). On

the basis of Dehati Nalishi report and Dehati Murg, first information report 3 (Ex.P/2) and Murg report (Ex.P/2) were registered. Investigating Officer M.S.Sikarwar (PW-22) conducted inquest proceedings in the presence of witnesses and drew inquest memorandum (Ex.P/8). He sent the dead body to Community Health Centre, Khurai for postmortem examination.

5. Dr. B.S. Chauhan (PW-17) performed postmortem examination, vide his report Ex.P/25 found 4 incised injuries on the body of deceased. In his opinion, the injuries were caused by some sharp edged and pointed object. The deceased had died due to shock resulting from excessive haemorrhage.

6. During investigation, on 7.11.1999 both the accused were arrested. On the information of accused Manohar, a knife, clothes and a slipper were seized from a place nearby spot. The seized articles were sent for examination to Forensic Science Laboratory. After completion of the investigation, charge sheet was filed and the case was put up for trial.

7. During trial, accused persons abjured their guilt and pleaded false implication.

8. Prosecution, to substantiate the accusation against the accused persons, examined 22 witnesses. Though Munni (PW-1), Shri Ram (PW-6) and Shyam Manohar Pathak (PW-7) were examined as eyewitnesses, but Shriram and Shyam Manohar Pathak did not support the prosecution case. However, relying on the evidence of Munni (PW-1), finding it corroborated by the medical evidence of Dr. B.S.Chauhan (PW-17) and other evidence on record, learned trial judge convicted the appellants/accused on the charge under Section 302/34 of the Indian Penal Code. However, finding evidence insufficient against accused Ramesh, acquitted him of the charge under Section 120-B of the Indian Penal Code.

9. Aggrieved by the impugned judgment, appellants have filed these appeals. 4

10. Learned counsel for the appellants submitted that the evidence of sole eyewitness Munnibai (PW-1) was not reliable. She exaggerated in stating before the Court that accused Babulal also dealt knife injuries to deceased. According to her, the evidence of Munnibai was not corroborated by the other evidence on record. In fact, she had disclosed the names of accused late. On the other hand, learned Panel Lawyer for the State submitted that the evidence of Munnibai (PW-1) was consistent, cogent and reliable. It was corroborated by the evidence of promptly lodged Dehati Nalishi, the evidence of Station Master Dhyan Singh (PW-11) and by the medical evidence. He supported the impugned judgment of conviction and urged that no interference was called for in the conviction of accused.

11. We have heard learned counsel for the parties and perused the impugned judgment and evidence on record carefully.

12. It has not been disputed by the accused that deceased died of a homicidal death. Munnibai (PW-1), Babita (PW-2), the daughter of deceased, and Tej Singh (PW-9) categorically stated that deceased died due to injuries inflicted by the accused persons. Sub Inspector M.S. Sikarwar (PW-22) conducted inquest proceedings before Tej Singh (PW-9) and drew inquest memorandum (Ex.P/8). In Ex.P/8 it was recorded that injuries by sharp edged weapon were present on the body of deceased. It was found that he died due to the said injuries. Dr. B.S.Chauhan (PW-17) conducted postmortem examination of his body. He found following injuries on his body: Stab wound situated on left side abdomen 5 cm “(1) lateral to umbilicus. Size 3 cm x 1 cm. Both ends pointed. Margins clear cut. Depth of wound 4 cm. Wound track directed downwards and posteriorly entered into peritoneal cavity. Intestine ruptured. (2) Incised wound situated on left thigh12 cm below from groin horizontally placed. Size 5 cm x 3 cm x muscle deep. Underneath muscles and blood vessels cut and 5 eechymoised. (3) Superficial would on left buttock. 13 cm below from waist region vertically placed. Size 1 cm x 0.5 cm x skin deep. Both ends pointed. Incised wound on right thigh posterior aspect 12 (4) cm above from knee joint. Horizontally placed. Both ends pointed. Size 4 cm x 1 cm x skin deep. In the opinion of doctor Chauhan, all these injuries were ante-mortem and homicidal in nature. These injuries were caused by some sharp and pointed object. The cause of death of deceased was shock and haemorrhage as a result of injuries to body. He opined that all the injuries found on the body were cumulatively responsible for the death. The postmortem examination report (Ex.P/25) was written and signed by him.” Thus, from the above evidence, it is clearly established that the deceased died a homicidal death.

13. Now the question before us is whether accused Babulal and Manohar caused death of deceased.

14. Complainant Munnibai (PW-1) stated that on the day of occurrence she and her husband Haridas had gone from Khurai in a bus to pick up woods from Jaruakheda. At about 7.00 O'clock in the evening, they came at Platform No.2 of Jaruakheda Railway Station and were taking their meals sitting on a bench. Accused Babulal and Mannu reached near them and told as to why they harassed Ramesh and that they will dispose them of. Babulal pulled her husband by catching his hands and Mannu pulled him by catching his muffler. They then stabbed him. Mannu gave blow in his axilla whereas Babulal dealt blow in his abdomen. When she tried to intervene, Mannu pushed and kicked her. She went running to the office of Station Master, who told her that she should go to police station. According to her, she told to Station Master that Babulal and Mannu had killed her husband. She stated that she went to Police Jaruakheda and lodged the report. Police people came at the Railway Station 6 and recorded her report (Ex.P/1) in the room of GRP. A Murg report (Ex.P/2) was also recorded. According to her, Meharban, the nephew of co-accused Ramesh had teased Babita whereupon a report was lodged. A case in that regard was pending. Because of that enmity, Ramesh got her husband killed at the hands of Babulal and Mannu. She categorically stated that she knew both the accused persons from before. She denied that she saw accused Mannu for the first time. Though she stated that there was no light in the Railway Station, but she said that it was not so dark. In cross-examination, she was confronted with her Dehati Nalishi (Ex.P/1) and the police statement (Ex.D/1) wherein she did not disclose that accused Babulal also assaulted deceased with knife. In Dehati Nalishi (Ex.P/1) this witness merely mentioned that Babulal intimidated them and pulled her husband. When she tried to save her husband, he pushed her. Her version in the report was that Babulal caught hold of both the hands of deceased from behind and exhorted Mannu to kill him whereupon Mannu dealt knife blows to deceased in quick succession as a result of which he fell down dead. Improving upon this version, she in the court stated that Babulal also assaulted deceased. It is true that she stated that Babulal pulled the hands of deceased, but she admitted that Mannu inflicted knife injuries to him. She further admitted that she did not see as to from where Mannu took out knife. Both the accused persons ran away after causing injuries to deceased leaving knife at the spot.

15. Learned counsel for the appellants/accused submitted that in the circumstances of the case since Munnibai happened to be the sole eyewitness of the incident, she could not be held a wholly reliable witness. Since she exaggerated in saying that accused Babulal also assaulted deceased with knife, her evidence in this regard deserved to be discarded.

16. Shriram (PW-6) and Shyam Manohar (PW-7) though admitted to be the 7 eyewitnesses of the occurrence, but they did not support the prosecution case. According to them, they saw a woman shouting that her husband was killed. She was saying that Babulal killed her husband. However, this fact was found to be an improvement. They did not mention this fact in their respective police statements (Ex.P/5 and P/6). Thus, their evidence, but for the fact that husband of Munnibai was killed, rendered no support to her evidence.

17. An important witness in the case is Dhyan Singh (PW-11), Station Master of Railway Station, Jaruakheda. According to him, while he was on duty, at about 7.20 pm a woman came shouting that her husband was stabbed. She asked him as to where she should go, then he told her to go to police station. According to him, woman was shouting that Babulal had killed her husband. He stated that after about 10-15 minutes Sub Inspector Sharma reached at the platform. When he and Inspector went at the platform, they saw a person lying there dead and a knife also lying nearby him. According to this witness, from his office he informed Assistant Station Master, Sagar, to intimate about the incident to Police GRP. Thereafter police force of GRP, Sagar, reached the station. Though in paragraph-3 this witness stated that Munnibai told to him that she knew only Babulal, but in next paragraph he stated that he came to know that one was Babulal and other person was Mannu later on. He stated that he recorded the incident in his daily diary (Ex.P/10). In Ex.P/10 he recorded that later on woman told to him that Babulal and Mannu, who belonged to Jaruakheda, had assaulted her husband. He stated that while in his office police officer was recording statement of woman, she disclosed this fact to him. Since he heard woman saying the said fact, he recorded it in Ex.P/10. In our opinion, since Dhyan Singh (PW-11) recorded this fact in daily diary, it furnished corroboration to his evidence, which, in turn, supported the evidence of Munnibai (PW-1). 8

18. The evidence of Munnibai finds further corroboration from the evidence of Dehati Nalishi (Ex.P/1) got recorded by her at 9.45 pm i.e. just after 2 hours and 15 minutes of the occurrence wherein she mentioned the names of accused persons. Sub Inspector K.D. Sharma (PW-16) stated that when he was posted in GRP, Sagar, he received information from Railway Station, Jaruakheda that a person had been stabbed to death. He went to Railway Station, Jaruakheda and met Munnibai. She named two persons as assailants. Thereupon he recorded Dehati Nalish (Ex.P/1). According to him, when he received information on telephone that a person had been killed at Railway Station, Jaruakheda, he recorded that information in Rojnamcha No.88/2.11.1999 and proceeded for the place of occurrence alongwith his staff. It is true that no names of assailants were mentioned in this information, but it did not affect the credibility of the evidence of Munnibai, because this intimation was sent by some unknown person in a cryptic manner. K.D. Sharma (PW-16) firmly denied that Munnibai lodged any report in Jaruakheda Police Chowki and that the said report was suppressed.

19. Since other eyewitnesses viz. Shriram (PW-6) and Shyam Manohar Pathak (PW-7) did not support the prosecution case in the trial court, Munnibai (PW-1) occupied the status of a solitary eyewitness of the occurrence. It is well settled that the evidence of a solitary witness must be of wholly reliable category. Though it is not always necessary to seek corroboration from some other evidence for placing reliance on the evidence of such a witness, yet in the present case, the evidence of Munnibai (PW-1) finds corroboration from the evidence of Dhyan Singh (PW-1), Dehati Nalishi (Ex.P/1) lodged by her soon after the occurrence and the medical evidence of Dr.B.S. Chauhan (PW-17), who found four injuries on the body of deceased caused by sharp and pointed weapon. However, it seems that Munnibai (PW-1) improved upon 9 her version given in Dehati Nalishi (Ex.P/1) and her police statement (Ex.D/1) in respect to accused Babulal in saying that he too stabbed deceased. The original version as given by Munnibai (PW-1) in Dehati Nalishi was that Babulal caught hold of the hands of deceased and it was accused Mannu who stabbed him in quick succession. In the court, she stated that Babulal pulled the hands of deceased and Mannu pulled his muffler. She did not say that Babulal kept on holding the hands of deceased while Mannu dealt knife blows. It is also significant to note that this witness admitted that she did not see from where Mannu took out knife. This gives an indication that accused Mannu was not holding the knife from before. As such, the probability that accused Babulal had no knowledge that Mannu had a knife could not be ruled out. Therefore, in our opinion, it was not established beyond doubt that accused Babulal shared common intention with accused Mannu. As such, in our opinion, the conviction of accused Babulal under Section 302 with the aid of Section 34 of the Indian Penal Code was not justified.

20. Evidence of Munnibai (PW-1) in respect of accused Mannu @ Manohar is firm, cogent, consistent and reliable. It is established that he inflicted knife blows to deceased in quick succession, as a result of which he died. According to Dr. B.S. Chauhan (PW-17), the injuries found on the body of deceased were sufficient to cause his death. It can be inferred with certainty that when accused Mannu inflicted four knife blows to deceased on various parts of his body including abdomen, he intended to cause his death making him liable to be convicted under Section 302 of the Indian Penal Code.

21. For the reasons aforesaid: (a) Criminal Appeal No.1042/2001 is allowed. The conviction and sentence of appellant/accused Babulal under Section 302/34 of the Indian Penal Code is set aside. He is acquitted. He is said to 10 be on bail. His bail bond and surety bond stand discharged. (b) Criminal Appeal No.1010/2007 of appellant/accused Manohar @ Mannu is dismissed. His conviction and sentence under Section 302 of the Indian Penal Code is affirmed.

22. A copy of this judgment be kept in the record of Criminal Appeal No.1010/2007. (RAKESH SAKSENA) JUDGE (M.A. SIDDIQUI) JUDGE shukla 11 HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Criminal Appeal No.1042/2001 Appeal of Prisoner No.1382/2001 Babulal, s/o Aman Patel, aged 35 years, r/o village Nayakheda, P.S. Naryawali, district Sagar. Versus The State of Madhya Pradesh Criminal Appeal No.1010/2007 Manohar @ Mannu Versus The State of Madhya Pradesh J U D G M E N T For consideration (Rakesh Saksena) JUDGE __/02/2012 Hon'ble Shri Justice M.A. Siddiqui JUDGE __/02/2012 POST FOR /02/2012 (Rakesh Saksena) Judge ___/02/2012