Ratanlal vs The State Of M.P.
2021 Latest Caselaw 5430 MP

                                 ...1...               CRA.No.30/2003

         HIGH COURT OF M.P. BENCH AT INDORE
D.B : HON'BLE JUSTICE SHRI VIVEK RUSIA & HON'BLE JUSTICE
                SHRI SHAILENDRA SHUKLA

                CRMINAL APPEAL No.30/2003

                 (i)     Ratanlal S/o. Mannaji,
                         (since deceased)
                         Aged about 68 years,
                         R/o. Village Ambapura (Raj.)

                 (ii)    Banshilal S/o. Dewalal,
                         Aged about 38 years,
                         R/o. Village Chuadaliya
                         P.S. Kalipitha, Distt. Rajgarh (M.P.)

                 (iii)   Gendi Bai W/o. Bapulal,
                         Aged about 48 years,
                         R/o. Village Chhuaadaliya,
                         P.S. Kalipitha, Distt. Rajgarh (M.P.)

                 (iv)     Jagannath S/o. Nanda,
                         (since deceased)
                         Aged about 48 years,
                         R/o. Village Chhuaadaliya,
                         P.S. Kalipitha, Distt. Rajgarh (M.P.)

                                                   ........(Appellants)
                                 vs.

                         State of Madhya Pradesh,
                         Through P.S. - Kalipitha,
                         District - Rajgarh (M.P.)

                                                  ........(Respondent)

                          **********

Ms. Seema Sharma, learned counsel for the appellant No.3. Shri A.S. Sisodiya, learned Public Prosecutor for respondent/State.

********** (JUDGMENT) Delivered on 15.9.2021 PER SHAILENDRA SHUKLA, J :-

This appeal has been preferred by the appellant No.3 (Gendi

Bai) under Section 374 of Cr.P.C against the order of conviction ...2... CRA.No.30/2003

dated 19.12.2002 passed in S.T.No.87/1994, whereby the Addl.

Sessions Judge, Rajgarh (Biaora) has found the appellant guilty for

committing the offence punishable under Sections 148, 323/149, 342,

325/149, 302/149 of IPC and sentenced as under

Conviction Sentence Section & Act Imprisonment Fine Amount Imprisonment in lieu of fine 148 of IPC 6 months RI Rs.250/- 3 months RI 323/149 of IPC 6 months RI Rs.250/- 3 months RI 342 of IPC 3 months RI Rs.250/- 3 months RI 325/149 of IPC 9 months RI Rs.250/- 3 months RI 302/149 of IPC Life Rs.500/- 3 months RI Imprisonment

2. In this matter there were originally 7 accused persons 4 of

whom had been convicted and sentenced. Apart from appellant No.3

Gendibai, the names of other convicted persons were Ratanlal,

Banshilal and Jagannath. All these 4 accused persons have preferred

appeal against judgment of conviction and sentence. Appellant No.1

Ratanlal and Appellant No.4 Jagannath have since expired and

appellant No.2 Banshilal has withdrawn his appeal and only

appellant No.3 Gendibai remains in fray.

3. The facts of the case are that on 9.6.1994 at about 11.00 AM,

the complainant Jamnabai along with her husband Ramlal (since

deceased) was working in agriculture field situated at village

Chuadaliya. At that point of time, the appellant with other co-accused

persons came and assaulted Ramlal. When Jamnabai tried to

intervene, she was also beaten up. Ramlal and the complainant were

thereafter taken by accused towards the house of Bapulal and Ramlal ...3... CRA.No.30/2003

was tied on an electric pole and was assaulted resulting in his death.

The report was lodged by the complainant at police station Kalipitha

on the night of the incident which was registered at crime No.93/94

under Section 147, 148, 149, 302, 342 and 323/34 of IPC.

Investigation was initiated and postmortem was conducted, spot map

was drawn, seizure of incriminating articles was made from the spot

of the incident. The statements of the witnesses were recorded and

accused were arrested after recording their memorandum and

subsequent seizure of weapons. The accusation against the present

appellant Gendibai was that she was armed with a sword and was

part of the unlawful assembly.

4. After investigation, charge sheet was filed in the Court of

JMFC from where the matter was committed to the Court of Sessions

Judge at Rajgarh. Charge sheet had been filed against the 7 accused

persons, two of them namely Bapulal and Kalu died during the

course of trial and their names were deleted from the list of accused.

Another accused namely Girdhari remained absconder and later on

he was also found to have died and his name was also deleted. 4

accused persons namely Ratanlal, Banshilal, Gendibai and Jaganath

faced the trial and as already stated, at the appellate stage appellants

Ratanlal and Jaganath died and Banshilal has withdrawn his appeal.

5. The charges which have been framed against appellant

Gendibai were under Sections 148, 342, 302/149, 323/149 and in the

alternative of Section 302/149, charge under Section 302 was framed

and similarly charge under Sections 325 and 323 of IPC were also ...4... CRA.No.30/2003

framed in the alternative. Similar charges were framed against

Ratanlal, Banshilal and Jaganath as well. Against Ratanlal an

additional charge under Section 376 of IPC was framed. The trial

Court has examined 13 witnesses. No defence witness has been

examined on the part of appellant Gendibai.

6. In the appeal preferred by appellant Gendibai, it has been

argued that whole case is fabricated, that medical evidence is in

conflict with the ocular evidence, that there are material

exaggerations, contradictions and differences in the prosecution

witnesses, that trial Court has mislead and misappreciated the

evidence on record and therefore, this appeal has been sought to be

allowed and the appellant has been requested to be acquitted.

7. The main question is whether the appellant No.3 Gendibai

deserves to be acquitted in view of the submissions made by the

learned counsel at the appellate stage.

8. Jamnabai (PW8) has stated that on the date of the incident at

about 11.00 AM, she was at her field and her husband was also

ploughing the field when accused came on the spot. Ratanlal, Banshi

and Gendibai were wielding swords and Jaganath was wielding a

lathi, Rajaram was carrying a Balam (iron rod with sharp edge at the

bottom) and Pahad Singh was wielding a Lathi. These accused

started assaulting her husband Rama who fell down and when

witness pleaded not to assault, she was also assaulted. The witness

states that the accused thereafter took the witness and her husband to

village Chuadaliya and her husband was tied to a pole and was ...5... CRA.No.30/2003

assaulted with stones and thereafter witness and her husband were

again taken to the house of Bapulal where again he was assaulted and

it is during this assault that her husband succumbed to his injuries.

The witness states that thereafter, she was raped by Bapulal and

Ratanlal. She states that the incident of her husband being assaulted

after being tied to a pole was witnessed by all the villagers who had

also witnessed the incident when the deceased was taken to the

house of Bapulal. However, the villagers had been threatened by the

accused with life. She also states that she was raped by Bapulal and

Ratanlal. The witness states that she lodged the report Ex.P/24. She

has also stated that the accused had severed the male organ of her

husband as well. The reason for this assault was the land dispute as

per the witness.

9. Ex.P/24 is in fact Dehatinalishi. Motilal (PW.11) has stated

that Dehatinalishi was recorded by SHO D.S. Chandel. Shri Chandel

is retired and his signatures have been identified by this witness.

Head Constable Hukum Singh (PW.9) has stated that on the basis of

Dehatinalishi Ex.P/24, the FIR had been lodged vide Ex.P/25.

10. Reverting back to the evidence of Jamnabai (PW8), there is no

mention of rape being committed upon her in her report. She has

been confronted with report at Ex.P/24 and the witness states that if

the aforesaid allegation of rape is not contained therein she does not

know. Same is the case with police statement Ex.D/1. She has further

been confronted with her Dehatinalishi report Ex.P/24 in which she

states that her husband had died while he was being assaulted after ...6... CRA.No.30/2003

being tied at the electric pole. The witness denies that her husband

was tied to the electric pole only and she had not made such

statements in Ex.P/24. She has further been asked as to whether she

had made allegation in her report regarding accused severing the

male organ of her husband ?. This question has been answered in

affirmative. However, there is no mention of the same allegation in

the FIR and Ex.D/1. There is also no mention in FIR that the accused

had threatened the villagers that if any witness reports to the police

he would be killed.

11. In para 18, the witness admits that Bapulal has since been

murdered and the accused in that case is the son of this witness Bane

Singh. She denies the suggestion that only Bapulal had assaulted.

12. Dr. L.B. Asthana (PW.7) has stated that on 10.6.1994. He had

examined Jamnabai wife of Ramlal and had found 9 injuries on her

person. These injuries were as follows :-

"(i) lacerated wound on the right side of the skull measuring 7x1/4x1/4 cm.

(ii) contusion near left eye measuring 7x1/2x1/2.

(iii) left wrist was swollen and painful.

(iv) contusion 6x4 cm on the left scapular region.

(v) contusion 9x1 cm on the right side of the back.

(vi) swelling in right shoulder with pain

(vii) contusion 11x1 cm on left side of the back.

(viii) contusion 6x3 on below the left buttock.

(ix) contusion 4x2 ½ on the right buttock."

13. He further states that on X-ray of Jamnabai a fracture was

noticed on ulna bone. The report is Ex.P/23.

14. No questions have been asked to this witness in cross

examination. A perusal of the report of Jamnabai shows that all her ...7... CRA.No.30/2003

injuries were caused due to impact of hard and blunt object.

However, she denies in cross examination that no assault was caused

to her with Sword or Farsi. The incident had allegedly occurred on

9.6.1994. The witness has been examined by police on the next day.

No suggestion has been given to Jamnabai (PW.8) as to how the

injuries were found on her person.

15. Eyewitness Gulab Bai (PW.10) states that Ramlal was her

father. On the date of incident at about 11.00 AM while she was in

her house and her parents were at their field, she saw that the accused

were bringing her parents to the village from field and the parents

had been tied down with a rope. She states that the accused then tied

her father to on electric pole and started assaulting him. As per this

witness, the accused had also assaulted her mother. She states that

she was also assaulted by accused persons with a stick then she

rushed to her house and closed the door from inside and remained

inside till 8.00 PM and when she opened the door, police arrived, she

came to know that her father had been killed and her mother had left

her house after the assault. The witness in cross examination, has

again stated that assault on her was made with lathi only and not with

sharp edged weapon. She has been confronted with her police

statement Ex.D/2 whereby she has levelled the allegation regarding

assault upon her, only against Bapulal and Ratna. She denies that she

had levelled such allegation only against these two persons. She

reiterates that all the accused had assaulted her with lathi. She

specifically states that appellant Gendibai was wielding a sword, but ...8... CRA.No.30/2003

Gendibai did not assault her with sword. In her cross examination

she states that she is married, but also states that on the date of the

incident, she had come to her parental house. She denies the

suggestion that her father used to indulge in theft and dacoity and

therefore, there was animosity between Bapulal and her father.

16. Witness Dr. L.B. Asthana (PW.7) has stated that on 10.6.1994,

while he was posted as Assistant Surgeon in the district hospital at

Rajgarh, he had examined Gulab Bai on obtaining the request letter

of SHO Kalipitha. He found following injuries on the person of

Gulab Bai :-

"(i) contusion 7x3 cm on left shoulder.

(ii) left knee was found to be swollen."

Report is Ex.P/19. These injuries were caused by hard and

blunt object and were caused within 24 hours. On obtaining the X-

ray no bony injury was found on her person.

17. There is no reason to doubt that Jamnabai (PW.8) and her

daughter Gulab Bai (PW.10) had received injuries during the incident

which had taken place on 10.6.1994. Thus, these witnesses are

reliable eyewitnesses of the incident.

18. Another eyewitness is Bane Singh (PW.13). This witness has

stated that on the date of incident, while he was sitting beneath a tree,

the accused including Gendibai were seen by him escorting Ramlal

and Jamnabai from the direction of agriculture field. The witness

states that he is the son of Ramlal and Jamnabai and had found that

both of them had been tied while being escorted. There were no ...9... CRA.No.30/2003

clothes on their person, that Gendibai was wielding a sword and

other accused were wielding different weapons. Witness states that

accused had brought the parents of the witness to the market of the

village and they were tied to a pole and both of them were assaulted.

Thereafter they were untied and taken inside the house of accused

Bapulal and both were again assaulted and his father's male organ

was also severed. This witness states that his mother Jamnabai

thereafter lodged the report. The witness has been confronted with

the police statement Ex.D/3. There is no mention therein that after

having been assaulted at the electric police, parents were dragged to

the house of Bapulal. The witness claims ignorance regarding such

omission in police statements. Further, he also pleads ignorance to

why there is no mention of severance of male organ of his father in

Ex.D/3. He denies that his father had been tied to electric pole only

and not taken inside the house of Bapulal. In para 4, he states that he

was watching the whole incident while lying beneath a tree. In para

29, he admits that on the date of the incident, he was suffering from

disease "Moti Jwar" (typhoid). A perusal of the Ex.D/3 shows that

the witness did not intervene because he was frightened and had

hidden himself. Despite the fact that there are some contradictions in

the statements of Bane Singh (PW13), there is no contradiction

regarding the fact that on the date of the incident he had seen the

incident while laying beneath a tree and that he was not well at that

point of time. With so many accused persons carrying his parents, it

may not have been unnatural for this witness to be frightened and not ...10... CRA.No.30/2003

save his parents.

19. Eyewitness Dr. J.P.S. Kushwaha (PW.12) has stated that on

10.6.1994, while posted as Assistant Surgeon at district hospital,

Rajgarh, the body of Ramlal was examined by him and following

injuries were found on his person :-

"(i) on the right side of skull and on right cheek, there was swelling.

(ii) incised wound measuring 2 x ¼ x ¼ inch on the middle part of the skull.

(iii) incised wound ½ x 1 ¼ x ¼ inch on the left cheek.

(iv) a deep lacerated injury diameter 2 inches on the basis of male organ.

(v) incised wound ½ x ¼ x ¼ inches on the upper side of the right shoulder.

(vi) incised wound 2 x ½ x ½ inches on the lower side of right foot.

(vii) incised wound 3 x ½ x ½ inches on left foot from below the knee till the bottom.

(viii) incised wound 2 x ½ x ½ inches on the upper side of the left shoulder."

20. All the injuries were ante-mortem in nature and the injury on

the middle part of the skull had resulted in blood clotting below the

bone on right parietal region, that there were clotted patches of blood

on the brain matter. The reason for death was excessive blood loss

due to numerous injuries and all the injuries combined together were

sufficient in the ordinary course of nature to cause death. The

postmortem report is Ex.P/41. Death had occurred within 24 hours.

In cross examination, the witness has been asked no questions. Thus,

it is found proved that Ramalal had succumbed to his injuries caused

by sharp edged weapon / weapons and the injuries were sufficient in

the ordinary course of nature to cause death. The injury on the skull

had been found to be very serious which proves that intention was to ...11... CRA.No.30/2003

cause death. It is thus found proved that the death of Ramlal was a

result of culpable homicide and the culpable homicide in this

particular case, has amounted to murder as the provisions thirdly of

Section 300 IPC would be attracted.

21. It has already been found that witnesses Jamnabai (PW.8),

Gulab Bai (PW.10) and Bane Singh (PW.13) cannot be termed to be

unreliable witnesses although these are interested witnesses. Both

Jamnabai (PW.8) and Gulab Bai (PW.10) have found to have

sustained injuries which these witnesses had received during the

incident. All these witnesses have stated that the appellant Gendibai

was involved in assaulting the deceased with a sword. A sword has

been seized from the appellant Gendibai as per Ex.P/34. This

document has been exhibited by Motilal (PW.11) who has stated that

the aforesaid document had been executed by SHO D.S. Chandel

who had since retired. From other accused persons also, weapons

have been recovered on the basis of their memorandum statements.

22. Rajkumar Singh (PW2) is the Head Constable and has stated

that vide memorandum of Pahad Singh Ex.P/4, a stick was seized

from his possession vide Ex.P/5, that from accused Rajaram, a

Ballam (iron rod having sharp edged at bottom) was seized from the

location described by him in his memorandum statement Ex.P/6. The

seizure memo is Ex.P/7. The witness states that from the spot, blood

stained soil and normal soil was seized vide seizure memo Exhibit

P/12.

23. A perusal of the trial court record does not show the receipt of ...12... CRA.No.30/2003

FSL report although the draft is placed therein. Even discounting for

the absence of FSL report, rest of the evidence invariably proves the

guilt of appellant Gendibai.

24. After duly considering the evidence available on record, it is

found proved that the appellant Gendibai was a member of an

unlawful assembly, which in furtherance of its common object

caused fatal injuries to the deceased which has resulted in his death.

It is also found proved that the injuries were sufficient in the ordinary

course of nature to cause death and therefore, appellant was rightly

convicted under Sections 148 and 302/149 of IPC. It has also been

found proved that the appellant was member of unlawful assembly

which had caused grievous injuries to Jamnabai and simple injuries

to Gulab Bai. Thus, the charge under Section 325/149, 323/149 of

IPC is also found proved against appellant Gendibai. However, there

is no sufficient evidence available to show that the death was caused

inside the house of Bapulal and therefore, there is no proof that

Bapulal and Jamnabai were taken to the house of Bapulal and

confined therein. Thus, the charge under Section 342 of IPC is not

found to be proved against the appellant. The appeal thus succeeds

only in part in respect of Section 342 of IPC. The sentence of

Gendibai under Section 342 of IPC of 3 months of RI is thus set

aside. The sentences awarded for committing other offences, ie.,

Section 323/149, 325/149 and 302/149 of IPC are appropriate in

terms of quantum and call for no interference. The appeal against

conviction and sentence regarding these offences is affirmed. Rest of ...13... CRA.No.30/2003

the observations regarding compensation to Jamnabai and Gulab Bai

by the trial Court is also found to be appropriate with no change

required therein.

25. The disposal of the property would be as per paragraph 23 of

the impugned judgment. Appellant No.3 (Gendi Bai) is on bail. Her

bail bond and surety bonds are cancelled and she is directed to

surrender herself before the trial court within a period of 30 days

from the date of pronouncement of this judgment for being sent back

to the jail to complete remaining part of jail sentence. On failure to

surrender, the trial Court shall take coercive measures for compliance

of this judgment.

26. Let a copy of this judgment be sent to the concerned trial Court

for compliance.

             (VIVEK RUSIA)                       (SHAILENDRA SHUKLA)
                 JUDGE                                  JUDGE

SS/-


              Digitally signed by SHAILESH
              MAHADEV SUKHDEVE
              Date: 2021.09.16 19:00:38
              +05'30'