Madhya Pradesh High Court
Babugir vs The State Of M.P. on 11 August, 2023
Author: Anuradha Shukla
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 11 th OF AUGUST, 2023
CRIMINAL APPEAL No. 2384 of 1998
BETWEEN:-
BABU GIR GOSAI, S/O BHANWAR GIR GOSAI, AGED
ABOUT 30 YEARS, R/O VILLAGE SANKLA, P.S.
AHMEDPUR, DISTRICT SEHORE (MADHYA PRADESH)
.....APPELLANT
(BY MS. SHIKHA SINGH BAGHEL - ADVOCATE APPEARS ON BEHALF OF
SHRI G.S. BAGHEL - ADVOCATE)
AND
THE STATE OF M.P. THROUGH P.S. AHMED NAGAR,
DISTRICT SEHORE (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI B.K. UPADHYAY - DY. GOVERNMENT ADVOCATE)
Reserved on : 09.08.2023.
Pronounced on : 11.08.2023.
This appeal having been heard and reserved for judgment, coming on
for pronouncement this day, the court passed the following:
JUDGMENT
The appellant in this case was held guilty by the First Additional Sessions
Judge, Sehore in judgment delivered on 02.09.1998 in S.T.No.106/1998. He
was charged for the offence of Section 302 of IPC for committing murder of
his brother Kanwar Gir but he was convicted for the offence of Section
304(Part-II) of IPC and was sentenced to undergo R.I. for 05 years and fine of
Rs.2000/- with default stipulation.
Signature Not Verified
Signed by: NITESH PANDEY
Signing time: 8/14/2023
10:13:37 AM
2 . Facts that are necessary for decision of this appeal are that the
brother-Kanwar Gir of appellant was given a land of 6.5 acres by their father.
On 01.06.1998, a dispute arose between appellant and his brother Kanwar Gir,
who was in his field. Avoiding this dispute Kanwar Gir started towards well but
he was stopped by the appellant and was given a blow of danda on his
head. Kanwar Gir fell down. Sometimes later, when his father came to the
field, he narrated the incident to him. On 01.06.1998 at around 3:30 p.m.
injured Kanwar Gir went to the police station along with his father and lodged
the FIR. He was sent for medical examination to CHC, Shyampur, District
Sehore. Looking to his condition, he was referred to Hamidiya Hospital,
Bhopal where he died. His postmortem was conducted which revealed that he
died of head injury, which was sufficient to cause death in ordinary course of
nature. The remaining investigation was undertaken and the charge-sheet was
filed on the basis of which the appellant was charged for the offence of Section
302 of IPC, but by the impugned judgment, he was convicted and sentenced as
aforesaid.
3 . The grounds raised in this appeal are that the learned Court below
failed to appreciate the facts and evidence in correct perspective. There was no
corroboration of prosecution story by any of the witnesses, hence, the case of
prosecution was not proved beyond reasonable doubt. The statements given
by the witnesses revealed that the victim went unconscious after receiving the
injury, hence, it could not have been proved that the FIR was lodged by him.
In this light, FIR was wrongly considered as the dying declaration of deceased.
It is, therefore, prayed that the conviction cannot be sustained. Further, the
sentence is too harsh which needs to be revisited on these grounds.
Signature Not Verified
Accordingly, prayer for reconsideration of sentence was made in this appeal.
Signed by: NITESH PANDEY
Signing time: 8/14/2023
10:13:37 AM
4. The State has opposed the appeal on the ground that no interference
is warranted in the impugned judgment, hence, the appeal should be dismissed.
5. Both the parties have been heard and the record of the Court below is
perused.
6. The FIR marked as Exhibit-P/23 suggests that the dispute arose when
the deceased was in his field and the appellant came there, he thereafter, gave a
blow of danda on the head of the deceased and then ran away. It was claimed
in the FIR that injured-Kanwar Gir fell on the ground and he narrated the
incident to his father when he reached there, after sometime. In these facts, it is
evident that there was no other person present on the field of the deceased to
witness the incident.
7 . FIR claims that the father of the deceased was the first person to
whom the incident was narrated by the injured. Father Bhanwar Gir has been
examined as PW-2 by the prosecution. He has stated in the Court testimony
that he was informed by the daughters of Kanwar Gir and Mouji Gir, namely,
Harku Bai and Laxmi Bai respectively, that Kanwar Gir was lying near the well,
he went to the spot where Kanwar Gir asked his father to take him to
Ahmedpur. Bhanwar Gir has stated that there was a head injury to Kanwar Gir.
Bhanwar Gir has also made a statement that Kanwar Gir did not inform him
about the name of assailant. Bhanwar Gir was asked leading question by
prosecution itself and was also cross-examined, but he failed to state any fact
against the present appellant during the whole exercise. He has disclosed his
ignorance on the fact that Kanwar Gir died because of the injury caused by the
appellant. He was stable throughout his testimony on the point that he had no
conversation with Kanwar Gir and was not informed by Kanwar Gir as to who
Signature Not Verified
Signed by: NITESH PANDEY
Signing time: 8/14/2023
10:13:37 AM
had caused injury to him.
8. Harku Bai (PW-3) and Laxmi Bai (PW-4) have also been examined in
the case as the children who had informed the father of the deceased about the
fact that Kanwar Gir was lying injured near well. Statements of these two young
children revealed that they only saw the injured lying near well and did not know
what had happened to him. Thus, the statements of these two witnesses do not
implicate either the appellant in the alleged crime.
9. Kamal Singh (PW-5) was the person who accompanied Bhanwar Gir
and Kanwar Gir to the police station. Admittedly, he was not present on the
scene of crime. It is claimed by him that Bhanwar Gir, the father of the
deceased had informed him that the appellant and Kanwar Gir had a fight. This
witness has not stated any fact as to how the injury was caused to Kanwar Gir.
This witness too makes a stated that on the way to police station, he was given
no information by injured Kanwar Gir. Though he saw a bleeding injury on the
head of Kanwar Gir, but he himself made no query about this injury. Thus, the
statements of Kamal Singh do not prove either that the injury caused to Kanwar
Gir was inflicted by the present appellant.
10. Mouji Gir (PW-6) is another brother of the appellant, but he too
failed to implicate the appellant in the alleged crime.
11. This appraisal of evidence reveals that none of the witnesses either
directly or indirectly implicated the appellant in the alleged crime. The basis on
which the learned trial Court held the appellant guilty was that the FIR of
Exhibit-P/23, was lodged by the injured, hence, it was of the nature of dying
declaration. In this context, the statements of Bhanwar Gir (PW-2), Harku Bai
(PW-3), Laxmi Bai (PW-4) and Kamal Singh (PW-5) are relevant. Harku Bai
and Laxmi Bai were the first persons who found the injured lying near the well.
Signature Not Verified
Signed by: NITESH PANDEY
Signing time: 8/14/2023
10:13:37 AM
They do not reveal that any fact was disclosed to them by the injured regarding
the cause of injury. Bhanwar Gir was next to reach to the injured Kanwar Gir.
His entire statements reveal that he was only asked by Kanwar Gir to take him
Ahmedpur and no disclosure was made by Kanwar Gir on the cause of injury
sustained by him. It is further disclosed by this witness that before reaching the
police station Kanwar Gir had went unconscious. Kamal Singh is the person
who has accompanied Bhanwar Gir and Kanwar Gir to the police station, but he
too has stated that before reaching the police station, Kanwar Gir was
staggering and Bhanwar Gir was holding him. It is further disclosed by the
witnesses that he is not aware of the facts stated by the Kanwar Gir inside the
police station because this witness was sitting outside.
12. The learned trial Court believed the prosecution story but ignored the
fact that no danda used to assault the deceased was proved to have been
recovered on the information given by the appellant. There was though an
alleged seizure of danda but that was never sent to FSL for examination. Thus,
there is only the FIR which has incriminating facts against the appellant and the
learned trial Court observed that the FIR being written by the victim was of the
sanctity of dying declaration as the victim later succumbed to his injury.
1 3 . The dying declaration, no doubt is of greater sanctity than the
ordinary statements given to the police, but to assign credibility to a dying
declaration, it must be shown that it was given in conscious and oriented,
mental state. The facts revealed by the prosecution witnesses, as discussed
earlier, show that the victim did not disclose to his father Bhanwar Gir or to
Parshad, Kamal Singh (PW-5) who had accompanied him to the police station,
about the person who caused him injury. It is stated by both these witnesses
Signature Not Verified
Signed by: NITESH PANDEY
Signing time: 8/14/2023
10:13:37 AM
that by the time they reached the police station the victim was almost in the state
of unconsciousness. It is claimed by Kamal Singh that victim was staggering
when they reached the police station. The FIR was allegedly written by victim
at 15:30 pm and his MLC was conducted at 6:10 pm. It is mentioned in the
MLC report that victim was unconscious at the time of medical examination.
The prosecution has to cogently prove that the FIR of Exhibit-P/23 which is
claimed to be written by the victim was written when he was conscious and
oriented. No evidence to that effect is available on record. In fact, the
prosecution witnesses have stated the fact that the victim had lost the control on
his body and mind by the time he reached the police station.
14. In the light of these circumstances, it cannot be successfully claimed
or observed that the victim himself had lodged the FIR Exhibit-P/23.
15. On the basis of above discussion, it is concluded that there is neither
direct evidence nor any circumstantial evidence to prove that the appellant had
attacked his brother Kanwar Gir and caused him fatal injury, therefore, the
conviction and sentence of appellant passed under Section 304 (Part-II) of IPC
are set-aside and he is acquitted in this case.
16. Appellant is already on bail, his bail bonds stand discharged.
17. Let the copy of this judgment be sent to the concerned Court
through the Sessions Judge, Sehore.
(ANURADHA SHUKLA)
JUDGE
Nitesh
Signature Not Verified
Signed by: NITESH PANDEY
Signing time: 8/14/2023
10:13:37 AM
