Madhya Pradesh High Court
Ghanshyam vs The State Of M.P. on 29 August, 2023
Author: Prem Narayan Singh
1
IN THE HIGH COURT OF MADHYA
PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 407 of 2000
BETWEEN:-
GHANSHYAM, S/O GOVARDHAN
AGED ABOUT 36 YEARS
R/O : VILLAGE KUMANGAON,
TEHSIL: KHATEGAON, DISTRICT-DEWAS,
(MADHYA PRADESH)
.....APPELLANT
(BY SHRI MANISH YADAV, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH,
POLICE STATION : KHATEGAON
DISTRICT-DEWAS (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI GAURAV RAWAT, GOVERNMENT ADVOCATE)
Reserved on : 04.08.2023
Delivered on : 29.08.2023
This appeal coming on for orders this day, with the
consent of parties, heard finally and the Court passed the
following:
JUDGMENT
1. This criminal appeal preferred under Section 374 of
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Criminal Procedure Code, mounts challenge to the judgment
dated 13.03.2000 passed in S. T. No.205/1998 delivered by
Additional Sessions Judge, Kannod, whereby appellant was held
guilty for offence under Sections 304-II, 323 of Indian Penal
Code, 1860 (hereinafter referred to 'IPC'), sentenced to undergo
10 years and 3 months R.I. with fine of Rs.1000/- and Rs.200/-
respectively and in default of payment of fine, to further undergo
1 year and 1 month S.I.
2. At the outset, it is relevant to mention here that other
co-accused persons Anokhi and Govardhan were acquitted by the
learned trial Court under Sections 302 and 323 of IPC, and no
appeal is pending before this Court in this regard.
3. Admittedly, appellant Ghanshyam was in judicial
custody during the trial from 05.10.1998 to 30.03.2000 and
thereafter, his remaining sentence was suspended only on
11.05.2000 by this Court and in pursuance of that order he was
released on 19.05.2000 from jail, that means he has already
suffered the incarceration period from 05.10.1998 to 19.05.2000.
4. Shorn of unnecessary details, the prosecution story with
regard to appellant Ghanshaym, can be summed up in this manner
that on account of previous enmity, appellant caused injury to
Devraj with rope at 3.00 pm on 02.10.2018. On being prevented
by Ramsingh, the appellant along with other co-accused persons
caused vital injuries to Ramnarayan, Ramsingh and Kushal with
lohangi latti and stone. In this regard Ramnarayan has lodged
report against appellant and other co-accused, which was
registered at crime No.188/98 for offence under Section 326,
323/34 of IPC, 1860. After MLC it was aggravated to Section 307
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of IPC. Following that on 03.10.2018 Ramsingh succumbed to
injuries and resultantly Section 302 of IPC was imposed against
accused persons.
5. During investigation, lash punchnama, postmortem reports
were prepared, accused persons were arrested and their
statements were recorded under Section 27 of Evidence Act. A
latti attached with iron wire (lohangi) was seized from the
appellant. In course of investigation, spot map was prepared and
statements of witnesses were recorded and the medical
examination of injured persons were conducted. After completion
of investigation, charge-sheet was filed before JMFC, Khategaon,
District-Dewas. In turn learned Magistrate has committed the
case to the Court of Sessions wherein the appellant was charged
for offence under Section 323 and 302 of IPC, 1860.
6. In order to bring home the charges, the prosecution has
examined as many as 11 witnesses namely Dr. S.C. Suryawanshi
(PW-1), Ramnarayan (PW-2), Kushal (PW-3), Ramu (PW-4),
Sonibai (PW-5), Gahsiram (PW-6), Babulal (PW-7),
Sathyanarayan (PW-8), Omprakash (PW-9), Sitaram (P.W.10),
Devendrasingh Raghuwanshi (P.W.11). No witness has been
examined on behalf of the defence by the appellant. The appellant
abjured his guilt and he took a plea that he is innocent.
7. Learned trial Court having considered the evidence and
having heard both the parties, convicted and sentenced appellant
as mentioned herein above.
8. Learned counsel for the appellant in his appeal memo
and arguments submitted that learned trial Court over looking the
fact and glassing over the legal points, erringly analysed the
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evidence and thereafter, gave the findings of conviction. Learned
trial Court was unable to appreciate that Devraj, the son of the
deceased did not receive any rope injury. Though prosecution
case is that the appellant was assaulting Devraj with rope and on
seeing him the deceased Ramsingh along with Kushal and
Ramnarayan came on the spot, the learned Trial Court failed to
appreciate that as to how the appellant received 20 injuries. It has
evidently emerged that the deceased had received only one injury
on his head which was said to be caused by appellant in his
private defence. That apart, all the prosecution witnesses are
interested witnesses and they are related to each other, so their
statements cannot be relied upon. Learned counsel for appellant
has also contended that the sentence of 10 years under Section
304(2) of IPC is a maximum sentence and it should only be
awarded when there is a rarest case. As such the sentence of 10
years is also improper and unjustifiable under the circumstances
of the case.
9. On the contrary, learned Govt. Advocate borne out the
findings of conviction and sentence passed in the impugned
judgment rendered by the learned trial Court. Further he has
submitted that the instant appeal, being sans merit, be dismissed.
10. In the light of the evidence and arguments advanced by
both the parties, the point for consideration is as to whether the
findings of trial Court convicting and sentencing the
accused/appellant under section 304(2) and 323 of IPC is
incorrect in the eyes of law and facts.
11. At the outset, the statement of Dr. S.C. Suryawanshi
(P.W.1) is worth referring. Dr. Suryawanshi deposed that on the
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date of the incident, he found following injuries on the person of
deceased Ramsingh:-
· Lacerated wound clotted blood present on head on
right parietal bone 1½ away from midline placed
transversely on front third part ½" x ¼" x bone deep.
· Lacerated wound clotted blood present ¾" post and
parallel to injury no.1size ½" x ¼" bone deep.
· Lacerated wound clotted blood present 1" post and
parallel to injury no.2 size ¾" x ¼" bone deep.
· Lacerated wound clotted blood present 1" post and
parallel to injury no.3 size ½" x ¼" bone deep.
· Right Parietal bone depressed.
Further this witness has also conducted postmortem of
Ramsingh and found that the deceased expired in coma due to
injuries sustained on his head. The statement of Doctor in his
examination-in-chief, has not been rebutted in his cross-
examination.
12. Now turning to eye witnesses of the case, Ram Narayan
(P.W.2) Khushal (P.W.3), Ramu (P.W.4) Sonibai (P.W.5)
Gasiram (P.W.6) all have unanimously supported the prosecution
case and clearly authenticated the fact that appellant has assaulted
Ramsingh by latti. Ram Narayan (P.W.2) has stated that appellant
Ramsingh has caused injury on the head of deceased with latti.
Kushal (PW.3) has also supported the fact in same manner. Ramu
(P.W.4) has deposed that he had seen that Ghanshyam assaulted
Ramsingh with latti encircled by iron wrie. Sonibai and Gasiram
have also supported the prosecution case. The testimony of these
witnesses has not been rebutted in their cross-examination.
13. In so far as, the injuries of Devraj is concerned, it is also
well fortified by Dr. S.C. Raghuvanshi (PW-1). He has found two
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contusions and one lacerated wound on the body of Devraj.
Aforesaid witnesses namely Ram Narayan (P.W.2) Khushal
(P.W.3), Ramu (P.W.4) Sonibai (P.W.5) Gasiram (P.W.6), all
have averred in the same manner that appellant assaulted Devraj
and therefore, he received injuries. The statements of these
witnesses have not been controverted in their cross-examination.
Hence, the charge of offence for causing hurt voluntarily to
Devraj is well proved. As such accused deserves to be convicted
under Section 323 of I.P.C.
14. Shri Manish Yadav, leaned counsel for the appellant has
expostulated that all witnesses are related and interested
witnesses, thus on the basis of their testimonies, the appellant can
not be convicted. Certainly, the witnesses are related to each
other. On this aspect in the case of "Dilip Signh vs. State of
Punjab" reported as AIR 1953SC364 the full Bench of Hon'ble
Supreme Court observed in para 26 as under:
"26. ......... Ordinarily, a close relative
would be the last to screen the real culprit and
falsely implicate an innocent person. It is true,
when feelings run high and there is personal
cause' for enmity, that there is a tendency to
drag in an innocent person against whom a
witness has a grudge along with the guilty, but
foundation must be laid for such a criticism
and the mere fact of relationship far from being
a foundation is often a sure guarantee of
truth."
15. Further in the case of Masalti vs. State of Uṭtar
Pradesh reported in [AIR 1965 SC 202] wherein it has been held
in para 14 as under:
"14. .......... There is no doubt that when a
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criminal Court has to appreciate evidence given
by witnesses who are partisan or interested, it
has to be very careful in weighing such
evidence. Whether or not there are
discrepancies in the evidence; whether or not
the evidence strikes the Court as genuine;
whether or not the story disclosed by the
evidence is probable, are all matters which
must be taken into account. But it would, we
think, be unreasonable to contend that evidence
given by witnesses should be discarded only on
the ground that it is evidence of partisan or
interested witnesses. Often enough, where
factions prevail in villages and murders are
committed as a result of enmity between such
factions, criminal Courts have to deal with
evidence of a partisan type. The mechanical
rejection of such evidence on the sole ground
that it is partisan would invariably lead to
failure of justice."
16. Endorsing the aforesaid citations, Hon'ble Apex Court
in the recent judgment rendered in Kurshid Ahmed vs. State of
Jammu and Kahsmir reported as [AIR 2018 SC 2497] has
reiterated as under:
"26. There is no proposition in law that
relatives are to be treated as untruthful
witnesses. On the contrary, reason has to
be shown when a plea of partiality is raised
to show that the witnesses had reason to
shield actual culprit and falsely implicate
the accused."
17. Virtually, on this aspect, the law laid down by Hon'ble
Supreme Court in M.D. Roza Ali & Ors. vs. State of Assam,
Ministry of Home Affairs, through Secretary reported in
(2019)19 SCC 567 wherein Hon'ble Apex Court endorsing its
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own other judgment has contended as hereunder:
"10 As regards the contention that all the
eyewitnesses are close relatives of the deceased,
it is by now wellsettled that a related witness
cannot be said to be an 'interested' witness
merely by virtue of being a relative of the
victim. This Court has elucidated the difference
between 'interested' and 'related' witnesses in a
plethora of cases, stating that a witness may be
called interested only when he or she derives
some benefit from the result of a litigation,
which in the context of a criminal case would
mean that the witness has a direct or indirect
interest in seeing the accused punished due to
prior enmity or other reasons, and thus has a
motive to falsely implicate the accused."
Hence this Court is of the view that only on the basis
that eye witnesses are close relatives of deceased, their statements
cannot be over boarded and their testimony cannot be regarded as
tempted testimony, specially, when some of the witnesses had
received injuries in the said incident, therefore, the stand of
learned counsel regarding relativeness of witnesses of deceased
appears to be without legs.
18. Now coming to the second limb of arguments of the
learned counsel for the appellant that prosecution has failed to
explain the injuries sustained by the appellant. In arguments, it
was contended that the appellant has sustained twenty injuries
and in private defence he has caused the said injuries. Regarding
the said injuries, I have gone through the record of the case.
Virtually the said injuries have not been proved by defence,
whereas as per Section 105 of Evidence Act, the burden of
proving such type of private defence is on the appellant himself,
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but in this regard he has not placed any defence before the Court.
19. On this aspect, the law laid down by Hon'ble Apex
Court in Takhaji Hiraji vs. Thakore Kubersing Chamansing&
Ors. reported as [(2001) 6 SCC 146], held as under :-
"Non-explanation of injuries assumes greater
significance when the evidence consists of
interested or partisan witnesses or where the
defence gives a version which competes in
probability with that of the prosecution. Where
the evidence is clear cogent and credit worthy
and where the Court can distinguish the truth
from falsehood the mere fact that the injuries
on the side of the accused persons are not
explained by the prosecution cannot by itself be
a sole basis to reject the testimony of the
prosecution witnesses and consequently the
whole of the prosecution case"
20. Endorsing the aforesaid full Court judgment Hon'ble
Apex Court in a recent judgment rendered in Ramanand @
Nandlal Bharti vs. State of Uttar Pradesh reported as [2022
Lawsuit (SC) 1224], here under :-
"We are of the view that both the sides are
wrong in their own way. The settled law is that
if there are serious injuries or grievous injuries
found on the body of the accused then the
prosecution owes a duty to explain such
injuries and the failure on the part of the
prosecution to explain may point towards the
innocence of the accused. At the same time, the
well settled law is that if the injuries are
superfluous or minor in nature then the
prosecution need not explain such injuries. In
the case on hand, the accused appellant has
offered some explanation which could be said
to be compatible with the defence he has put
forward. As explained earlier, the accused has
to establish his defence on preponderance of
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probability and not beyond reasonable
doubt.........."
21. In the case at hand, the defence has not vindicated any
injury on the person of appellant. The Doctor has also not
deposed regarding any injury occurred on the person of appellant/
accused. Even in his cross-examination, no suggestion was
advanced by defence in this regard. Nevertheless, Investigating
Officer Shri D.S. Raghuvanshi (PW-11) was suggested in this
regard in his cross-examination, but still it is not proved properly
that the appellant has received serious injuries in the incident.
Hence the contentions regarding non-explanation of said 20
injuries is also found baseless.
22. Learned counsel for the appellant submitted that since
the co-accused persons namely Anokhi and Govardhan were
acquitted from the same set of evidence, then the appellant cannot
be convicted on the same. The law laid down by Hon'ble
Supreme Court in its Full Bench decision, rendered in the case of
Gurcharan Singh Vs. State of Punjab reported in AIR 1956 SC
460, is poignant in this regard. The relevant part of the judgment
is mentioned below :-
" Be that as it may, we are no
more concerned with the case against
those two accused persons who have
been acquitted by the High Court; but
so far as the appellants are concerned,
the evidence of the four eyewitnesses
referred to above is consistent and has
not been shaken in cross-examination.
That evidence has been relied upon by
the courts below and we do not see any
sufficient reasons to go behind that
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finding. It is true that three out of those
four witnesses are closely related to the
deceased Inder Singh.
But that, it has again been repeatedly
held, is no ground for not acting upon
that testimony if it is otherwise reliable
in the sense that the witnesses were
competent witnesses who could be
expected to be near about the place of
occurrence and could have seen what
happened that afternoon. We need not
notice the other arguments sought to be
advanced in this Court bearing upon
the probabilities of the case because
those are all questions of fact which
have been adverted to and discussed by
the courts below."
23. Here, it has to be kept in mind that this Court is not testing the
legality of acquittal of two accused persons. However, in this
appeal on the basis of evidence available on record, this Court is
satisfied that the judgment of conviction passed by the learned
trial Court is in accordance with law and facts. It is also well
settled principle that the maxim "falsus in uno falsus in omnibus"
has no application in India. Hon'ble Supreme Court in the case of
Shaktilal Afdul Gaffar Khan Vs. Basant Raghunath Gogle
reported in (2005) 7 SCC 749 has held as under :-
".....it is the duty of Court to separate grain
from chaff. Falsity of particular material
witness or material particular would not
ruin it from the beginning to end. The
maxim "falsus in uno falsus in omnibus"
has no application in India and the
witnesses cannot be branded as liar. The
maxim "falsus in uno falsus in omnibus"
has not received general acceptance nor
has this maxim come to occupy the status
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of rule of law. It is merely a rule of
caution. All that it amounts to, is that in
such cases testimony may be disregarded,
and not that it must be disregarded. The
doctrine merely involves the question of
weight of evidence which a Court may
apply in a given set of circumstances, but
it is not what may be called 'a mandatory
rule of evidence".
24. In view of the aforesaid prepositions, the testimony of
the witnesses cannot be discredited or wiped out only on the basis
that other co-accused persons are acquitted on the same set of
evidence. As such the aforesaid contention is also not liable to be
accepted.
25. Before parting, the demurrer raised by learned counsel
for the appellant, though in low tune, is also required to be
ruminated. Shri Yadav has contended that on the basis of single
blow, the appellant can not be attributed for the offence of
culpable homicide but rather, he should be punished for the
offence punishable under Section 325 of IPC. Here, it has to be
kept in mind that the appellant had assaulted with lathi encircled
by iron wire (lohangi) on the head of deceased, which was
admittedly a vital part of the body. Hence, it would be established
that the appellant while using lohangi lathi, knows that he by his
act is likely to cause death. Hence, he will be liable for
committing culpable homicide not amounting to murder which is
punishable under Section 304 (Part-II) of the I.P.C.
26. In view of the aforesaid analysis of the evidence and
propositions, conclusion of the learned trial Court regarding
conviction of accused under Section 304(2) of IPC and 323 of
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IPC is found immaculate and infallible in the eyes of law.
27. Now returning to the part of sentence the learned
counsel has vehemently submitted that the punishment of 10
years R.I. is maximum punishment hence prayed that the same be
reduced to the period already undergone by the appellant. In this
regard it is to be kept in mind that due to the assault of appellant
an innocent person has lost his life; therefore, the appellant
should be sentenced appropriately. Nevertheless, there are some
mitigating circumstances are also available in this case. The
appellant is facing trial from nearby 25 years, he has also suffered
the incarceration period from 05.10.1998 to 19.05.2000. That
apart, the offence was committed without premedition, preplaning
and only on spur of movement. On this aspect, the following
excerpt of the judgment of Hon'ble Apex Court rendered in the
case of Bhagwan Narayan Gaikwad vs. State of Maharashtra;
[2021 (4) Crimes 42 (SC) is worth mentioning here:-
"28. Giving punishment to the wrongdoer
is the heart of the criminal delivery system, but
we do not find any legislative or judicially laid
down guidelines to assess the trial Court in
meeting out the just punishment to the accused
facing trial before it after he is held guilty of the
charges. Nonetheless, if one goes through the
decisions of this Court, it would appear that this
Court takes into account a combination of
different factors while exercising discretion in
sentencing, that is proportionality, deterrence,
rehabilitation, etc."
28. On this facet, the law laid down by Hon'ble the Apex Court in
Jaswinder Singh (Dead) through Lrs Vs. Navjot Singh Sidhu
and others reported in AIR 2022 SC 2441 is also condign to
quote here as under :-
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26. An important aspect to be kept in mind is
that any undue sympathy to impose
inadequate sentence would do more harm to
justice system and undermine the public
confidence in the efficacy of law. The
society can not long endure under serious
threats and if the courts do not protect the
injured, the injured would then resort to
private vengeance and, therefore, it is the
duty of every court to award proper sentence
having regard to the nature of the offence
and the manner in which it was executed or
committed....."
29. In conspectus of aforesaid propositions of law and
mitigating circumstances of the case, this appeal is partly
allowed. The finding of the learned trial Court regarding
conviction and sentence under Section 323 of IPC is affirmed
while the conviction for the offence under Section 304(II) of IPC
is affirmed with modification of sentence by reducing it to the
extent of five years R.I. instead of 10 years of R.I. and with fine
of Rs.10,000/- in place of Rs.1000/-. In case of default of
payment of fine amount, the appellant shall undergo further three
months Simple Imprisonment.
30. The appellant is on bail. His bail bonds stands
discharged. He is directed to surrender before the trial Court
within a period of 15 days from the date of this judgment for
completing the remaining part of sentence. In case, he fails to
surrender, the learned trial Court shall take all steps to commit
him to jail for undergoing remaining part of sentence. The
judgment regarding disposal of the seized property stands
confirmed. Out of the total fine amount, if recovered fully,
Rs.7,000/- be paid to LRs of the deceased.
31. A copy of this order alongwith the record of the trial
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Court, be sent to the learned trial Court for information and
necessary compliance.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
JUDGE
vindesh
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