Madhya Pradesh High Court
Bajnath @ Bittu vs The State Of Madhya Pradesh on 18 December, 2023
Author: Gurpal Singh Ahluwalia
Bench: Gurpal Singh Ahluwalia
1 Cr.A. No.853/1999
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE GURPAL SINGH AHLUWALIA
ON THE 18th OF DECEMBER, 2023
CRIMINAL APPEAL No. 853 of 1999
BETWEEN:-
1. BAIJNATH @ BITTU AGED 22 YEARS R/O
VILLAGE MADHAVGANJ, P.S. AJAYGARH,
DISTRICT PANNA (MADHYA PRADESH)
2. DHANESH AGED 25 YEARS R/O VILLAGE
MADHAVGANJ, P.S. AJAYGARH, DISTRICT
PANNA (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI DILIP PARIHAR - ADVOCATE/AMICUS CURIAE )
AND
THE STATE OF MADHYA PRADESH (MADHYA
PRADESH)
.....RESPONDENT
(BY SHRI GAJENDRA PARASHAR - PANEL LAWYER)
This appeal coming on for hearing this day, the court passed the
following:
JUDGMENT
This criminal appeal under Section 374(2) of Cr.P.C. has been
filed against judgment and sentence dated 18.03.1999 passed by Special
Judge, Panna in Special Case No.87/1997 by which appellant No.1 has
been convicted under Sections 435 and 323 of IPC and has been
sentenced to undergo rigorous imprisonment of one year and a fine of
Rs.500/- and a fine amount of Rs.500/- in default 3 months S.I.
respectively, whereas appellant No.2 has been convicted under Section
435/34 and Section 323 of IPC and has been sentenced to undergo
rigorous imprisonment of one year and a fine of Rs.500/- with default
imprisonment of 3 months and a fine of Rs.500/- with default
imprisonment of 3 months respectively. It has further been directed that
compensation of Rs.500/- be paid to Bhola Chungar as well as to Smt.
Gilli.
2. It is not out of place to mention here that on 14.12.2023 none had
appeared for appellants and accordingly, the case was adjourned for
15.12.2023 with a clear observation that in case none appears for
appellants, then this Court shall proceed further in accordance with law
laid down by Supreme Court in the case of Surya Baksh Singh Vs.
State of U.P., reported in (2014) 14 SCC 222. Thereafter, on
15.12.2023 also, none appeared and accordingly, Shri Dilip Parihar,
Advocate, who has a vast experience in arguing criminal matters and is
in the list of M.P. High Court Legal Services Committee was appointed
as counsel for appellants/amicu curiae and accordingly, the case was
heard finally.
3. According to the prosecution case, on 02.04.1996 at about 03:00
p.m. firewood lying in the courtyard (baagad) of Bhola Chungar. Bhola
Chungar was set on fire and injuries were caused to injured Gillibai by
axe as well as to the victim Sampatbai and Rajabhaiya by lathies and
accordingly, offence under Sections 435, 323, 294, 506(B)/34 of IPC
was committed. According to prosecution case, on 02.04.1996 an FIR
was lodged by Rajjibai at about 5.30 p.m. that she was grazing cattle
near the place of incident. She saw that appellants No.1 Baijnath has set
the firewood lying in the courtyard of Bhola Chungar on fire. He was
accompanied by appellant No.2 Dhanesh. When sister of Bhola Chungar
namely Smt. Gillibai (P.W.-9) and Sampatbai as well as Rajabhaiya
tried to stop the appellants from setting the firewood on fire, then both
the appellants as well as Gappu abused them by using filthy language
and also alleged that "chungars are crossing their limits" and assaulted
them by lathies and also extended a threat that they will be killed. On
account of mischief the courtyard, firewood lying in the courtyard as
well as roof of hut got burnt thereby causing loss of Rs.800/-
approximately. The aforesaid information was received by B.S. Parihar
(P.W.-2), who was posted as Sub-Inspector in Police Station Ajaygarh
and after receiving the telephonic information he went to the spot where
Dehatinalishi was lodged. Dehatinalishi was sent to Police Station
where Crime No.48/1996 was registered for offence under Sections 435,
323, 294, 506B/34 of IPC and under Sections 3(1)(10) & (11) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities). Spot
map was prepared. The statement of victim was recorded and the matter
was handed over to AJAK. The injured eye witnesses were sent for
medical examination. The Damage Panchnama was prepared. The caste
certificates of witnesses were obtained and accused persons were
arrested. On 04.04.1996 after completing the investigation police filed
the charge sheet for offence under Sections 435, 294, 506, 324 and 34 of
IPC as well as under Section 3(1)(10) of Scheduled Castes and
Scheduled Tribes (Prevention of Atrocities) Act. Since no person by the
name Gappu was found on the spot, therefore, the charge sheet was filed
against only two persons.
4. The Trial Court by order dated 09.07.1997 framed the charges
under Sections 435, 324, 323 of IPC and under Section 3(1)(10) of
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act
against appellant No.1 and charge under Sections 435/34, 323 and under
Section 3(1)(10) of Scheduled Castes and Scheduled Tribes (Prevention
of Atrocities) Act against appellant No.2
5. The appellants abjured their guilt and pleaded not guilty.
6. The prosecution in order to prove its case examined Gangaprasad
(P.W.-1), B.S. Parihar (P.W.-2), Baijnath (P.W.-3), Heera (P.W.-4), Dr.
S.K. Tripathi (P.W.-5), Ramnarayan (P.W.-6), Anand Bihari Khare
(P.W.-7), Kishoribai (P.W.-8), Gillibai (P.W.-9) and R.S. Meena (P.W.-
10). The appellants did not examine any witness in their defence.
7. The Trial Court by impugned judgment and sentence has
convicted the appellant No.1 under Sections 435 and 323 of IPC
whereas appellant No.2 for offence under Sections 435/34 and 323 of
IPC and has sentenced to undergo rigorous imprisonment as mentioned
above.
8. Challenging the judgment and sentence passed by Court below, it
is submitted by counsel for appellants that entire evidence is based on
the solitary evidence of Gillibai (P.W.-9). In the spot map burned roof of
hut, woods etc. were not shown. The Damage/Nukasani Panchnama was
prepared, Ex.P/9. All other witnesses have turned hostile. It is submitted
that since conviction of appellants is based on the solitary evidence of
Gillibai (P.W.-9) and she is an interested witness, therefore, she is not
reliable.
9. Per contra, appeal is vehemently opposed by counsel for State. It
is submitted that Gillibai (P.W.-9) is an injured witness, therefore, her
presence on the spot is not disputed. The information regarding offence
was immediately sent to Police Station on telephone and Dehatinalshi
was lodged within 2 hours of the incident, therefore, there is no chance
of any improvement or over implication. The allegations of assault are
duly corroborated by weapons allegedly used by appellants. Minor
omissions and contradictions which do not go to the root of the case
cannot be given importance in order to discard the evidence of eye
witness.
10. Heard learned counsel for parties.
11. Gangaprasad (P.W.-1) has stated that on the basis of
Dehatinalishi, Ex.P/1 he had recorded the FIR. B.S. Parihar (P.W.-2)
had written the Dehati Nalisi, Ex.P/1 and he has further stated that on
the very same day he had prepared the spot map, Ex.P/3 and had also
recorded the statement of Rajjibai and thereafter, he forwarded the diary
to AJAK Panna for further investigation. In cross-examination this
witness has specifically stated that Dehatinalishi was registered on the
very same day at 3 p.m. i.e. within 1 hour from the incident. He further
clarified that corrections in Dehaltinalishi were made by him which also
bears short signatures. This witness has also stated that when he reached
on the spot he saw that some fire was already burning whereas the
remaining fire was already extinguished by water. In the courtyard
firewood was kept. However, no question was put to this witness as to
why burning woods were not shown in the spot map.
12. Baijnath (P.W.-3) has turned hostile and has not supported the
prosecution case. Heera (P.W.-4) has also turned hostile and did not
support the prosecution case. Dr. S.K. Tripathi (P.W.-5) has proved the
injuries sustained by witnesses. According to this witness, he had found
the following injuries on the body of Sampat Chungar:
"Contusion 8 c.m. x 8 c.m. on back of left elbow." MLC is
Ex.P/5.
On the body of Gillibai (P.W.-9) following injuries were found:
(i) Incised wound on left hand tenor 5 c.m. x 2 c.m. x muscle deep.
(ii) Laceration posterior aspect of right forearm upper third 2 c.m. x 2
c.m. x 1 c.m. caused by hard and blunt object.
(iii) Laceration posterior 1 c.m. x 1 c.m. on right forearm caused by
hard and blunt object.
(iv) Lacerated wound on mid of head 5 c.m. x 5 c.m. x 1 c.m.
MLC is Ex.P/6.
This witness had found the following injuries on the body of
Rajabhaiya:
(i) Laceration 2 c.m. x 1 c.m. x 1 c.m. on left parietal region.
(ii) Laceration 1 c.m. x 1 c.m. x ½ c.m. on mid of the head.
(iii) Laceration 2 c.m. x 1 c.m. x 1 c.m. on right pulp of index finger.
MLC report is Ex. P/7.
This witness was cross-examined but counsel for appellants could
not point out any relevant aspect which may make his evidence
unreliable.
13. Ramnarayan (P.W.-6) had taken the Dehatinalishi to Police
Station Ajaygarh for its registration. Anand Bihari Khare (P.W.- 7) is
the Patwari, who had prepared the spot map, Ex.P/8. Kishoribai (P.W.-
8) is a hearsay witness, who was informed by Gilli. She has stated that
earlier, she was beaten and accordingly, she and her husband was in the
Police station, where Gilli, Sampat, Kali and Rajabhaiya came and Gilli
informed that appellants have set their hut on fire, as a result, clothes
and eatables have also burnt. Thereafter, they went back to their house
and saw that belongings were already burnt. She further stated that in
the earlier incident of assault, medical examination of herself and her
husband Bhola was conducted and when she came back, she saw that
30-40 bundle (gattha) of firewood were already burnt. In the cross
examination she has stated that fire took place in front of room where
she prepares meals and clothes were also kept there. The said room is
about 20 feet long. On one side of room, the firewood were kept with
roof of dry grass over it. In cross-examination she has stated that she
went to Police Station at about 10 p.m. in the morning. The earlier
incident had taken place at about 8 a.m. in the morning. The information
was given by Gilli in Panna hospital where she was admitted. She
denied that she was not informed by Gilli that the house was burnt. Her
attention was drawn towards police statement, Ex.D/1 in which she has
stated that when she came back to her house, then she saw that hut was
burnt and she was informed by Gilli, Rajabhaiya, Sampat etc. that
appellants have burnt the same. Thus, the only discrepancy is as to
whether this witness was informed by Gillibai in Panna hospital or after
she came back to her house. It is made clear that before giving any
importance to said discrepancy, this Court would like to consider the
evidence of Gillibai (P.W.-9), who was an eye witness and she was also
injured in the incident.
14. Gillibai (P.W.-9) has also stated that dispute had taken place
between Bhola and Baijnath etc. After quarrel she went to spot. The
accused persons were standing there. Baijnath set the firewood on fire,
as a result, eatables, clothes, 30-40 bundle (gattha) of wood got burnt.
The incident was also witnessed by Muliya and Rajji. When she tried to
stop the appellants from burning the firewood, then appellant No.1 etc.
shouted that Chunkariya's be beaten and accordingly, appellant No.1
gave an axe blow on the left hand causing injury on thumb on which
stitch was applied. Thereafter, appellant No.2 assaulted her by lathi on
her head. Father of Baijnath also instigated them by alleging that they
may beat as per their wishes and whatever amount is required, the same
will be spent. When Baijnath, Sampat and Muliya tried to intervene,
they too were assaulted. After sustaining the lathi blow, she fell
unconscious. Thereafter, Baijnath, Sampat and Muliya took to her in
Government Hospital from where they were directed to approach police
station. Thereafter, they went to Harijan Police Station. She was
subsequently medically examined. She was hospitalized for 3 days.
Police had prepared the Nuksani Panchnama and had found that total
loss of Rs.8,000/- to Rs.10,000/- is caused.
15. Counsel for petitioner tried to point out certain discrepancies in
the evidence of witnesses but it is suffice to mention here that minor
discrepancies cannot be given more importance to discard the evidence
of witnesses. Appellant No.1 was alleged to be carrying axe and incised
wound was also found on the left hand tenor of Gilli Bai (P.W.-9).
Similarly appellant No.2 was carrying lathi and lacerated wounds were
also found on various parts of the body of Gillibai including on mid of
head. Thus, it is clear that evidence of this witnesses with regard to
assault made by appellant No.1 and appellant No.2 is fully corroborated
by medical evidence. Thus, this Court is of considered opinion that
evidence of Gillibai (P.W.-9) is reliable. Furthermore, she is an injured
witness, therefore, her presence on the spot is undoubted.
16. The Supreme Court in the case of Chandrasekar v. State,
reported in (2017) 13 SCC 585 has held as under :
"10. Criminal jurisprudence attaches great weightage
to the evidence of a person injured in the same occurrence
as it presumes that he was speaking the truth unless shown
otherwise. Though the law is well settled and precedents
abound, reference may usefully be made to Brahm
Swaroop v. State of U.P. [Brahm Swaroop v. State of
U.P., (2011) 6 SCC 288 : (2011) 2 SCC (Cri) 923]
observing as follows : (SCC p. 302, para 28)
"28. Where a witness to the occurrence has
himself been injured in the incident, the testimony of
such a witness is generally considered to be very
reliable, as he is a witness that comes with an in-built
guarantee of his presence at the scene of the crime
and is unlikely to spare his actual assailant(s) in order
to falsely implicate someone."
17. The Supreme Court in the case of Abdul Sayeed v. State of
M.P., reported in (2010) 10 SCC 259 has held as under :
"Injured witness
28. The question of the weight to be attached to the
evidence of a witness that was himself injured in the
course of the occurrence has been extensively discussed
by this Court. Where a witness to the occurrence has
himself been injured in the incident, the testimony of such
a witness is generally considered to be very reliable, as he
is a witness that comes with a built-in guarantee of his
presence at the scene of the crime and is unlikely to spare
his actual assailant(s) in order to falsely implicate
someone. "Convincing evidence is required to discredit an
injured witness." [Vide Ramlagan Singh v. State of
Bihar [(1973) 3 SCC 881 : 1973 SCC (Cri) 563 : AIR
1972 SC 2593] , Malkhan Singh v. State of U.P. [(1975) 3
SCC 311 : 1974 SCC (Cri) 919 : AIR 1975 SC 12]
, Machhi Singh v. State of Punjab [(1983) 3 SCC 470 :
1983 SCC (Cri) 681] , Appabhai v. State of Gujarat [1988
Supp SCC 241 : 1988 SCC (Cri) 559 : AIR 1988 SC 696]
, Bonkya v. State of Maharashtra [(1995) 6 SCC 447 :
1995 SCC (Cri) 1113] , Bhag Singh [(1997) 7 SCC 712 :
1997 SCC (Cri) 1163] , Mohar v. State of U.P. [(2002) 7
SCC 606 : 2003 SCC (Cri) 121] (SCC p. 606b-c), Dinesh
Kumar v. State of Rajasthan [(2008) 8 SCC 270 : (2008) 3
SCC (Cri) 472] , Vishnu v. State of Rajasthan [(2009) 10
SCC 477 : (2010) 1 SCC (Cri) 302] , Annareddy
Sambasiva Reddy v. State of A.P. [(2009) 12 SCC 546 :
(2010) 1 SCC (Cri) 630] and Balraje v. State of
Maharashtra [(2010) 6 SCC 673 : (2010) 3 SCC (Cri)
211] .]
29. While deciding this issue, a similar view was taken
in Jarnail Singh v. State of Punjab [(2009) 9 SCC 719 :
(2010) 1 SCC (Cri) 107], where this Court reiterated the
special evidentiary status accorded to the testimony of an
injured accused and relying on its earlier judgments held
as under : (SCC pp. 726-27, paras 28-29)
"28. Darshan Singh (PW 4) was an injured
witness. He had been examined by the doctor. His
testimony could not be brushed aside lightly. He had
given full details of the incident as he was present at
the time when the assailants reached the tubewell.
In Shivalingappa Kallayanappa v. State of
Karnataka [1994 Supp (3) SCC 235 : 1994 SCC
(Cri) 1694] this Court has held that the deposition of
the injured witness should be relied upon unless there
are strong grounds for rejection of his evidence on
the basis of major contradictions and discrepancies,
for the reason that his presence on the scene stands
established in case it is proved that he suffered the
injury during the said incident.
29. In State of U.P. v. Kishan Chand [(2004) 7
SCC 629 : 2004 SCC (Cri) 2013] a similar view has
been reiterated observing that the testimony of a
stamped witness has its own relevance and efficacy.
The fact that the witness sustained injuries at the
time and place of occurrence, lends support to his
testimony that he was present during the occurrence.
In case the injured witness is subjected to lengthy
cross-examination and nothing can be elicited to
discard his testimony, it should be relied upon
(vide Krishan v. State of Haryana [(2006) 12 SCC
459 : (2007) 2 SCC (Cri) 214] ). Thus, we are of the
considered opinion that evidence of Darshan Singh
(PW 4) has rightly been relied upon by the courts
below."
30. The law on the point can be summarised to the effect
that the testimony of the injured witness is accorded a
special status in law. This is as a consequence of the fact
that the injury to the witness is an inbuilt guarantee of his
presence at the scene of the crime and because the witness
will not want to let his actual assailant go unpunished
merely to falsely implicate a third party for the
commission of the offence. Thus, the deposition of the
injured witness should be relied upon unless there are
strong grounds for rejection of his evidence on the basis
of major contradictions and discrepancies therein."
18. This Court in the case of Nathu Singh Vs. State of M.P., by
judgment dated 30-4-2021 passed in Cr.A. No.397 of 2005 has held as
under :
"92. Thus, it is clear that an injured witness enjoys a
special status and the injury found on his body indicates
his undoubted presence on the scene of occurrence."
19. Apart from that Dehatinalishi was lodged within a period of 1
hour of the incident and thus, there was no occasion for the witnesses to
over implicate the person.
20. Considering the totality of facts and circumstances of the case,
this Court is of considered opinion that Gillibai (P.W.-9) is a reliable
witness and accordingly, it is held that appellant No.1 had committed
the offence under Sections 435 and 323 of IPC. So far as offence
committed by appellant No.2 under Section 435 read with Section 34 of
IPC is concerned, there is nothing on record to suggest that appellant
No.2 was sharing common intention with appellant No.1. It appears that
some quarrel took place between parties in earlier part of the day i.e.
about 8 p.m. and accordingly, Kishoribai (P.W.-8) and her husband
Bhola had gone to police station. Thereafter, the incident in question
took place at about 2 p.m. There is no allegation by Gillibai (P.W.-9)
that appellant No.2 had instigated appellant No.1 to set the firewood on
fire. Thus, it is held that there is nothing on record to suggest that
appellant No.2 was sharing any common intention with appellant No.1
to commit an offence under Section 435 of IPC. Accordingly,
conviction of appellant No.2 for offence under Section 435 read with
Section 34 of IPC is hereby set aside and he is acquitted of the said
charge.
21. So far as offence under Section 323 of IPC is concerned, this
Court has already held that evidence of Gillibai (P.W.-9) is reliable and
thus, it is held that appellants had assaulted the witnesses by lathi on the
various parts of body of injured witnesses including on the head of
Gillibai (P.W.-9). Accordingly, conviction of appellant No.2 for offence
under Section 323 of IPC is hereby affirmed.
22. Heard on the question of sentence.
23. It is submitted by counsel for appellants that incident took place
on 02.04.1996 at about 3 p.m. Appellant No.2 had already remained in
jail for 21 days i.e. from 04.04.1996 to 25.04.1996. Therefore, it is
submitted that jail sentence awarded to appellant No.1 for offence under
Section 435 of IPC be reduced to the period already undergone by him.
24. Considered the submissions made by counsel for appellants.
25. The incident took place on 02.04.1996 i.e. 27 long years have
passed. Appellant No.1 had already remained in jail for 21 days. No
minimum sentence has been provided for offence under Section 435 of
IPC. Therefore, this Court is of considered opinion that jail sentence
awarded to appellant No.1 can be reduced by enhancing the fine
amount. Accordingly, appellant No.1 is sentenced to jail sentence
already undergone by him and a fine of Rs.5,000/-. The fine amount be
deposited within a period of 3 months from today, failing which
sentence awarded by Trial Court shall automatically stand revived and
appellant No.1 shall surrender before the Trial Court for undergoing the
jail sentence. If the enhanced fine amount is deposited within a period of
3 months from today, then appellant No.1 shall not be required to
surrender and his conviction under Section 435 of IPC for the period
already undergone by him shall remain intact.
26. So far as offence under Section 323 of IPC is concerned, both the
appellants have not been awarded any jail sentence and they have been
punished with a fine of Rs.500/-. The aforesaid sentence of Rs.500/- is
hereby maintained.
27. Ex-consequenti, appellant No.2 is hereby acquitted of charge
under Sections 435/34 of IPC.
28. Ex-consequenti, the judgment of sentence dated 18.03.1999
passed by Special Judge, Panna in Special Case No.89/1997 is hereby
affirmed with aforesaid modification.
29. It is made clear that in case if enhanced fine amount is deposited
by appellant No.1 within a period of 3 months, then his bail bond and
surety bond shall stand cancelled otherwise his bail bond and surety
bond shall stand discharged and appellant No.1 shall surrender for
undergoing original jail sentence of one year awarded by Trial Court.
30. Let a copy of this judgment alongwith record of Trial Court be
sent back immediately for necessary information and compliance.
31. With aforesaid observations, appeal is allowed to the extent
mentioned above.
(G.S. AHLUWALIA)
JUDGE
vc
VARSHA Digitally signed by VARSHA CHOURASIYA
DN: c=IN, o=HIGH COURT OF MADHYA
PRADESH, ou=HIGH COURT OF MADHYA
PRADESH, postalCode=482001, st=Madhya
CHOUR
Pradesh,
2.5.4.20=f460d4685ef5a4622238f0b59b78c
2407fd3ee2f619d9ce8e428c224c23ec8ac,
pseudonym=4898159F2B2CE66588391B16
E9CF8981F5D6A897,
ASIYA
serialNumber=A0506346908D8FDC4A2DA9
968A85B01E1D95EF7D16305535607986268
17C4267, cn=VARSHA CHOURASIYA
Date: 2023.12.21 18:04:23 +05'30'
