Kalu vs State Of M.P.
2021 Latest Caselaw 1572 MP

                                  ---1---                        CRA.No.113/2008


    HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
     DIVISION BENCH : HON'BLE SHRI JUSTICE SUJOY PAUL &
          HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA, JJ.

                     CRIMINAL APPEAL No.113/2008

                    Kalu S/o Bao @ Babu Bhilala,
                    Aged - 35 years,
                    R/o. Dasoda, Police Station Dharampuri,
                    District Dhar.

                                                            .............Appellant
                                     Vs.
                    State of Madhya Pradesh
                    Through Police Station- Dharampuri,
                    District Dhar.
                                                            ...........Respondent

Present :-
          Mrs. Sharmila Sharma, learned counsel for the appellant.
          Shri Amit Singh Sisodiya, Public Prosecutor for State.


                              JUDGEMENT

(Delivered at Indore on this 26th day of April, 2021)

Per Shailendra Shukla, J.

The appellant, being aggrieved by the judgement dated 01.12.2007,

pronounced by the 2nd Additional Sessions Judge, District Dhar in S.T.

No.183/2007, has preferred this criminal appeal under Section 374 of the

Cr.P.C. seeking setting aside of judgement of conviction and sentence,

whereby appellant has been convicted and sentenced as under :-

 Sr.    Conviction                           Sentence
 No. under Section          Imprisonment          Fine      Imprisonment
                                                Amount      in lieu of fine
1      302 of IPC        Life imprisonment      Rs.500/-       6 months
                                                              additional RI
                                  ---2---                        CRA.No.113/2008

2. The prosecution story, succinctly speaking, is that on 20.06.2007,

while the witness Mohansingh was going towards his house from the field at

around 5.45 PM, he saw his brother Jagdish standing on the road in front of

flour-mill of Gendalal and was attacked with a stone by the appellant Kalu on

his head due to which he fell down. The appellant struck Jagdish 2-3 times

again on his head. When Mohansingh came to intervene, appellant and his

wife Santoshbai fled from the spot. Jagdish succumbed to his injuries. The

incident was seen by witness Galsingh. The witness Mohansingh lodged the

FIR in Police Station Dharampuri, District Dhar the same day. FIR (Exhibit-

P/1) was recorded by B. K. Chhari (PW5) posted as SHO in police station

Dharampuri, district Dhar. He subsequently prepared Naksha Panchayatnama

of the dead-body (Exhibit-P/2), collected blood stained stone, blood soaked

and ordinary soil from the spot, drew safina form and sent the body for post-

mortem examination and recorded the statements of witnesses. The witness

also sent the seized items and the blood soaked clothes of Jagdish to FSL. The

investigation culminated in submission of charge-sheet under Section 302 of

IPC.

3. Learned Trial Court has examined six prosecution witnesses during

trial. The defence of the appellant was that false case has been foisted upon

him due to land dispute between him and father of witness Galsingh as also

with brother of witness Rakesh. The appellant has not led any defence

evidence. As already described, learned Trial Court has convicted and

sentenced the appellant.

4. In the appeal, it has been stated that the evidence produced by the

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prosecution is not reliable, that there is discrepancy between ocular and

medical evidence, that no motive has been ascribed, that eye-witnesses are also

not reliable and, therefore, it has been prayed that appellant be acquitted.

5. The question for consideration is as to whether in view of

submissions put-forth by counsel for the appellant, whether the conviction of

appellant under Section 302 of IPC is liable to be set aside and the appellant be

acquitted.

6. There are three eye-witnesses in the case namely, Mohansingh

(PW1), Galsingh (PW2) and Rakesh (PW3). Sitabai (PW4) is wife of the

deceased. The investigation has been carried out by B. K. Chhari (PW5) and

the post-mortem has been conducted by Dr. Mohan Gupta (PW6).

7. It would first be appropriate to consider the statements of eye-

witnesses. Mohansingh (PW1) states that while he was going from his field

towards his house, his brother Jagdish, standing in front of flour-mill was

given a blow on his head with a stone by the appellant, as a result of which

Jagdish fell down and then he was struck 2-3 times again by the appellant

resulting into his death. As per this witness, when he went near the spot,

appellant and his wife fled from the spot. Report (Exhibit-P/1) was thereafter

lodged by him. In his cross-examination, he although states that girl child

namely, Ritu had gone to his house and informed that Jagdish is lying dead on

the road however, he states that he himself saw the incident and he then had

narrated the incident to his family members. In para-5, he again states that

when he arrived at the spot, his brother was already dead. He also states that

appellant and his wife fled from the spot and he had seen them running away.

---4--- CRA.No.113/2008

The witness admits that there was no previous enmity of the deceased Jagdish

with the appellant. However, in para-10 of his cross-examination, he states

that appellant had not been returning Rs.10,000/- which he had taken from his

brother and due to this dispute, his brother had been killed. The witness states

that accused had first hit the deceased with a small stone and as his brother fell

down, he was hit again by bigger stone by the appellant. On questioning as to

whether in the police statements and FIR, he had mentioned regarding

inflicting blows on deceased with two stones. The witness has answered in

affirmative. However, when confronted with FIR (Exhibit-P/1) and police

statements (Exhibit-D/1), he states that he does not know as to why these

submissions are not there in these documents. In para-11 of his cross-

examination, he states that why such submissions are not there in Exhibit-P/1

and Exhibit-D/1, he cannot ascribe.

8. Close perusal of evidence of this witness shows that he may not

have seen the incident himself because in para-5, he has stated that when he

reached the spot, his brother had already died.

9. Regarding the motive for committing the offence, the witness in

para-6 states that there was no previous enmity or dispute between the

appellant and deceased, but later on in paras-10 and 11, he states that there was

dispute regarding money between the appellant and deceased.

10. In view of aforesaid, evidence of witness Mohansingh (PW1) does

not appear to be reliable. The trial Court's reliance on this witness despite the

aforementioned contradicts and omissions is not acceptable and we express

our dissent on such conclusion that Mohansingh (PW1) is creditworthy.

---5--- CRA.No.113/2008

11. The other eye-witness is Galsingh (PW2). This witness states that on

the date of incident, he and his father were doing some repairing work in their

house. He heard sounds of abuse and he saw the appellant and Jagdish

grappling with each other. Appellant Kalu then picked up a stone and hit the

same on the head of Jagdish due to which he fell down. Then Kalu picked up

another big stone and hit the same on the head of Jagdish 2-3 times and due to

such impact the brain matter of Jagdish came out and his head disfigured and

became flat. Jagdish died on the spot. Thereafter, his brother Mohan came and

Kalu fled from the spot. In cross examination he submits that he had been

called by the police two days after the incident. He denies that when he arrived

at the spot the accused had already fled. He categorically states that he himself

had seen the accused inflicting blows on Jagdish. He admits that

Panchayatnama of the dead body was prepared before him. This witness has

been given a suggestion that 4-5 months prior to the incident, a quarrel had

ensued between the appellant and the father of the witness. This witness claims

ignorance regarding such quarrel and states that he was not present in the

house at that point of time. Thus Galsingh (PW2) claims to have seen the

incident himself and in his cross examination, no contradictions or omissions

have been elicited. Learned counsel has submitted that statements of this

witness have been recorded belatedly by police and there is evidence that

witness does not categorically deny quarrel between his father and the

appellant. However, such submission does not dent the prosecution story, as

recording statement barely two days later is not a circumstance to discredit the

witness because the investigation involves many facets, which tend to

---6--- CRA.No.113/2008

consume time.

12. Eyewitness Rakesh (PW3) has stated that on the date of incident, he

had gone to the house of Galsingh (PW2) for getting his trouser stitched and at

that point of time, he heard shouts and then he along with Galsingh (PW2) and

Shobharam came out and saw Kalu inflicting stone blow on Jagdish and

thereafter Kalu picked up another big stone and repeatedly inflicted blows on

the head of Jagdish due to which his brain matter came out and he died. In his

cross examination he has stated that on the date of incident he had not been

questioned by the police and the questioning was done to 2 -3 days after the

incident. There are no other contradictions or omissions in the statements of

this witness. No questions have been asked regarding there being any dispute

between him and the deceased.

13. Learned counsel has submitted that presence of this witness on the

spot is doubtful because Galsingh (PW2) does not state that Rakesh (PW3) had

come to his house and that he and Rakesh both have seen the incident. It is

further stated that in the FIR (Exhibit P/1) also there is no mention of Rakesh.

14. These submissions were considered.

15. Although Galsingh (PW2) has not stated the present of Rakesh in his

house at the time of incident, but as already discussed earlier, the statements of

Rakesh (PW3) have not been successfully challenged by bringing out any

contradiction or omission in his Court statement vis-a-vis police statement.

Further, there is nothing on record to show that Rakesh (PW3) was nursing a

grudge against the appellant due to some previous rivalry. As far as the

submission that the name of Rakesh has not been taken in FIR (Exhibit P/1),

---7--- CRA.No.113/2008

the law is settled that FIR is not an encyclopedia of events. The judgment of

the Apex Court in the case of State of M.P. vs. Chhakkilal, (2019) 12 SCC

326 is relevant on this point. Further, Mohan (PW1) who has lodged the FIR is

himself not found to be creditworthy. Hence, absence of name of Rakesh in

FIR is not a circumstance, which would favour the appellant.

16. There is some exaggeration in the statements of Galsingh (PW2) and

Rakesh (PW3), in the sense that both have stated that deceased was hit with 2-

3 stones by the appellant, which is not the prosecution story and no such

statements have been made in the police statements by these witnesses.

However, this aspect has appropriately been considered by the Trial Court in

para-21 of the impugned judgement wherein the Apex Court judgement of

State of U. P. vs. Anil Singh, AIR 1988 SC 1998 has been referred to, in

which it has been held that not uncommon for the witness to make exaggerated

statements and it is the duty of the Court to cull-out nuggets of truth from the

evidence and such inconsistencies, unless glaring in nature would not dent the

prosecution story.

17. Sita Bai (PW4) is wife of the deceased, who states that on the date

of the incident while she was in her house, a girl namely Ritu came and

informed her that Kalu is hitting her husband Jagdish with a stone. When she

arrived at the spot, she saw her husband lying dead with his head crushed. In

her cross examination she claims ignorance regarding the dispute, if any,

between the appellant and Jagdish. The statements of this witness regarding

she be informed by a girl, is admissible in evidence and is a relevant fact as per

Section 6 of the Evidence Act. The information was given to her by the girl

---8--- CRA.No.113/2008

immediately, as the incident occurred and such information forms part of the

same transaction as per Section 6 of the Evidence Act.

18. Shri B.K. Chhari (PW5) is the investigating officer, who states that

he had collected a stone weighing around 10 kg from the spot. The seizure

memo is Exhibit P/3. The stone had traces of blood. The stone along with the

blood soaked soil and the clothes worn by the deceased were sent to FSL and

the FSL report is Exhibit P/9. Perusal of Exhibit P/3 shows that apart from

substantial amount of blood on the seized stone, number of hair were stuck on

the same. The FSL report (Exhibit P/9) shows that the stone which is Article

'C' contained human blood. This stone, as per Exhibit P/3, had been seized

from the spot of the incident. The presence of human blood and hair on the

stone corroborates the prosecution story that deceased was hit with such stone.

19. Learned counsel for the appellant has drawn Court's attention to the

evidence of Dr. Mohan Gupta (PW6) who has conducted the postmortem and

submitted his report Exhibit P/6 and who has admitted the suggestion that the

flattening of the skull of the deceased could be because of being run over by

the tyre of a vehicle. Attention was also drawn to the statement made in Para-8

by this witness, who has used the words punctured wound ( Hkksdk gqvk ?kko).

Learned counsel further submits that the word " Hkksdk gqvk" would mean a stab

wound, which could not have been caused by a stone. This submission is also

liable to be rejected because complete statement of the witness have to be read.

20. The credibility of Dr. Mohan Gupta (PW6) is liable to be considered

only on perusal of his over all evidence.

21. Dr. Mohan Gupta (PW6) has stated that the sutures of the skull of

---9--- CRA.No.113/2008

deceased had got displaced and skull parts had become motile and the

temporal area of the skull had been flattened out. The witness has stated that it

was a punctured wound which could have been caused by any object whose

weight was about 9 kg and whose diameter was such, as would correspond

with the area of the skull, which bore the impact. Such statements point, in all

probability, that the injury was on account of blow by about 9 kg heavy object

and the wound could not be stab wound. This witness thus states on one hand

that it was punctured wound, on the other hand clarifies that injury could be

caused due to object having wide surface area and thus, on the basis of his

evidence, it cannot be established that injury was caused by sharp object.

22. Regarding the possibility of crushing of the head of deceased due to

a vehicle, the same is negated as there are no tyre marks as per spot map

(Exhibit P/14). Further, there are no other injuries on other parts on the person

of deceased which would have definitely occurred had it been vehicular

accident.

23. Considering the evidence Dr. Mohan Gupta (PW6) in entirety the

only conclusion which can be drawn is that the death of Jagdish was a result of

culpable homicide.

24. The evidence of Galsingh (PW2), Rakesh (PW3) and Sitabai (PW4)

has already been appreciated in detail earlier. To reiterate, no contradictions

and omissions have been brought forth in the evidence of Galsingh (PW2) and

Rakesh (PW3). No suggestion regarding their animosity with the appellant has

been given to these witnesses. Further, a stone with human blood on which

hair were stuck was also seized from the spot. In view of such unimpeachable

---10--- CRA.No.113/2008

evidence, the only conclusion which can be drawn is that it was the appellant

who had caused the culpable homicidal of Jagdish.

25. As far as the absence of motive is concerned, it would be relevant to

cite Apex Court judgment of Vijay Shankar vs. State of Haryana, (2015) 12

SCC 644, in which it has been laid down as under:-

"12. In each and every case, it is not incumbent on the prosecution to prove the motive for the crime. Often, motive is indicated to heighten the probability of the offence that the accused was impelled by that motive to commit the offence. Proof of motive only adds to the weight and value of evidence adduced by the prosecution. If the prosecution is able to prove its case on motive, it will be a corroborative piece of evidence. But even if the prosecution has not been able to prove its case on motive that will not be a ground to throw the prosecution case nor does it corrode the credibility of the prosecution case. Absence of proof of motive only demands careful scrutiny of evidence adduced by the prosecution. In the present case, absence of convincing evidence as to motive makes the court to be circumspect in the matter of assessment of evidence and this aspect was not kept in view by the High Court and the trial Court."

26. Thus, although 'motive' is relevant under Section 8 of the Evidence

Act, absence of the same does not entitle the accused to be acquitted if

prosecution case is proven from other available evidence.

27. Despite the fact that the learned counsel for the prosecution has not

been forthcoming in enlightening this Court as to why the trial Court's

judgment is liable to be affirmed and why the appeal is liable to be dismissed,

we have carefully gone through the evidence placed on record and expressed

our consonance with the findings of the trial Court regarding culpable

homicide of deceased caused by the appellant.

28. In order to determine as to whether the culpable homicide was

amounting to murder or not, the intention of the appellant needs to be

---11--- CRA.No.113/2008

determined from the evidence on record. It has been found proved that the

appellant had given repeated stone blows on the vital part, i.e., head of Jagdish

resulting in his death on the spot, which shows his intention to cause death.

Therefore, Firstly of Section 300 of IPC is attracted, meaning thereby that the

appellant had committed murder of Jagdish. His conviction under Section 302

IPC thus stands affirmed. Sentence imposed upon him by the trial Court is also

commensurate with the gravity of the offence proved against him, hence the

same is affirmed as well.

29. The appeal consequently fails and is dismissed accordingly.

30. A copy of this judgment along with the original record be sent to the

concerned trial Court.

                    (SUJOY PAUL)                               (SHAILENDRA SHUKLA)
                       JUDGE                                         JUDGE

gp, ss/- trilok
                    Digitally signed by SHAILESH
                    MAHADEV SUKHDEVE
                    Date: 2021.04.29 10:39:18
                    +05'30'