Madhya Pradesh High Court
Ganesh Balai vs The State Of Madhya Pradesh on 29 May, 2024
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla, Hirdesh
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIJAY KUMAR SHUKLA
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 29th OF MAY, 2024
CRIMINAL APPEAL No. 122 of 2014
BETWEEN:-
GANESH BALAI S/O SHRI RAMESH BALAI, AGED ABOUT
29 YEARS, OCCUPATION: BELDARI R/O RAMKRISHNA
BAGH COLONY, INDORE AT PRESENT IN CENTRAL JAIL
(MADHYA PRADESH)
.....APPELLANT
(BY SMT. INDU RAJGURU - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH. THROUGH P.S.
KHAJRANA, DISTRICT INDORE (MADHYA PRADESH)
.....RESPONDENT
( BY SHRI SUDHANSHU VYAS - GOVERNMENT ADVOCATE)
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This appeal coming on for hearing this day, Justice Hirdesh passed the
following:
JUDGMENT
1. This criminal appeal under Section 374 (2) of Cr.P.C. has been preferred
by the appellant being aggrieved by the judgment dated 20.11.2013 passed by
Sessions Judge, Indore in Session Trial No.829/2012 whereby the trial court
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has convicted the appellant for the offence punishable under Section 302 of
IPC and sentenced him to undergo rigorous imprisonment for life with fine of
Rs.10,000/- and in default of payment of fine to further undergo six months
additional R.I.
2. According to the prosecution story on 11.04.2012, Sheetal (PW-7) who
is daughter of deceased and accused came to the house of her grandfather
(Nana) at 5:30 P.M. and stated that appellant is beating her mother. Thereafter,
grandfather Gorelal (PW-5) and grandmother Sundarbai (PW-6) came along
with Sheetal (PW-7) to the house of the appellant and saw that appellant
assaulted his wife Aarti with knife and she was lying on the floor fully
covered with blood. The appellant pushed Gorelal and Sundarbai and fled
away from the spot. Thereafter, Gorelal (PW-5) went to the police station
Khajrana with his granddaughter and lodged the FIR. The Police came on the
spot and enquired the matter. The Investigating Officer prepared the Lash
Panchnama and thereafter send the body of the deceased for postmortem and
arrested the accused, seized his clothes and blooded knife.
3. After due investigation, police filed charge-sheet against the appellant
before the concerned Court of Magistrate. After committal, the case was sent
to the Court of Sessions Judge, Indore for trial.
4. The appellant abjured the guilt and sought trial. In turn, prosecution in
order to prove its case examined 12 witnesses. After completion of evidence
of prosecution witnesses, the appellant was examined under Section 313 of
Cr.P.C. Appellant took defence that he has not committed the offence and he
was falsely implicated in the case. He also took the defence that he was not
present at the spot at the time of incident, but he did not examine any witness
in his defence. After conclusion of trial, the trial Court held the appellant
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guilty for the offence and sentenced him as mentioned above.
5. Being aggrieved by the impugned judgment, the appellant filed this
appeal and submitted that trial Court has committed grave error in not
considering the fact that the case of the prosecution is based on circumstantial
evidence. It is further submitted that Sheetal PW-7 is a child witness and is
tutored. She stated in the cross examination that at the time of incident she
was playing outside the house and Gorelal (PW-5) and Sundarbai (PW-6) are
interested witnesses but there are so many omissions and contradictions in
their statements. The seizure of clothes and knife was not duly proved. In FSL
report blood group was not mentioned. So the judgment of the trial Court is
erroneous and liable to be set aside.
6. On the other hand, learned counsel for the respondent/State supported
the impugned judgment and submitted that prosecution has proved its case
with direct evidence which is corroborated by the medical evidence and the
FSL report and prays for dismissal of the appeal.
7. We have heard the learned counsel for the parties and perused the
record.
8. The first question arises before this Court is whether the death of
deceased was homicidal in nature or not?
9. Kulwant Singh (PW-12) C.S.P., Investigating Officer stated in
examination-in-chief that on the date of incident i.e. 11.04.2012 he reached on
the spot for enquiry of the Merg. He prepared the Panchnama of the dead
body of the deceased/victim which is Ex.P-13 and prepared application for
postmortem Ex.P-12 and send the body for postmortem. Dr. Deepak Gawli
(PW-8) stated in examination-in-chief that he was posted as Medical Officer
in M. Y. Hospital, Indore and on 11.04.2012 he conducted the postmortem of
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the dead body of the deceased and found the following injuries on the body:-
"Injuries:- (1) A stab wound of size 2 x 1 cms with 4 cms
depth present on left side of neck which is 4 cms away from
left angel of mandible, 5 cms downwardly away from left ear
lobule, which is directed lateral to medial downwardly acute
angle at medial side and broad angle at lateral side,
underlying structures such as sternocleidomastoid muscles,
carotid artery and C7 vertebra anteriorly showing stab
wound.
(2) An incised wound of size 2 x 0.2 cms present on
abdomen situated at midline, 4 cms just above umbilicus.
(3) An incised wound of size 1.5 x 0.5 cms present on left
ear over Pinna just below the external meatus.
(4) An incised wound of size 1 x 0.1 cms present on right
upper and medial side of palm which is 3 cms below wrist
joint."
10. He stated that the death of the deceased was due to the stab injury over
the neck region and the injuries are sufficient to cause death in the ordinary
course and the death is homicidal in nature. The duration of death is 24 hours
since the postmortem examination. Hence, considering the evidence of Dr.
Deepak Gawli PW-8 and Kulwant Singh PW-12, it is proved that deceased
died due to shock and hemorrhage as a result of stab injury over the neck
region and death is homicidal in nature. There is no substantial cross
examination done by the defence in this regard to Dr.Deepak Gawli (PW-8).
11. Now the point of determination is as to whether the appellant has
caused the death of deceased by assaulting her by knife.
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12. At the outset, Gorelal (PW-5), Sundarbai (PW-6) and Sheetal (PW-7)
are required to be enunciated.
13. Sheetal (PW-7) who is daughter of the appellant and deceased stated in
examination-in-chief that appellant is her father and deceased is her mother. In
the morning on the date of incident, her father had demanded money from her
mother. Thereafter, her mother went for her work and came back at 5 P.M.
When her mother was cooking food, her father banged her mother‟s head on
the platform due to which she fell down and her father assaulted her mother
by knife on her stomach and neck. Thereafter, she went to her grandfather‟s
house and narrated the story on which her grandfather and grandmother went
to the house of appellant along with Sheetal (PW-7).
14. Gorelal (PW-5) father of the deceased stated in examination-in-chief
that on the date of incident at 5 P.M. Sheetal (PW-7) came to their house and
stated that a quarrel took place between her father and mother, they went to
their daughter‟s house where he saw the appellant was present in the room and
on seeing him, the appellant fled away from the spot. He saw the knife in the
hand of the appellant. Sundarbai (PW-6) supported the version of Gorelal
(PW-5) in her examination-in-chief.
15. Learned counsel for the appellant submits that no independent witness
has supported the case of the prosecution. It is only indicated by the relative
witnesses and there are so many omissions and contradictions in the statement
of witnesses.
16. With regard to these aspects, in the case of Chauda Vs. State of
Madhya Pradesh, 2019 ILR M.P. 471, a Division Bench of this Court has
held as - an interested eye witnesses- presence of eye witnesses establishes
their statement.
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"The appellants failed to rebut their testimony which was quite
natural and without any material contradiction and omission the
conviction can be based on the testimony of close
relatives/interested witnesses. There is no material contradiction
or omission between testimony of eye witnesses and medical
evidence which must be relied upon. In this case it is held that if
interested / relative witnesses are reliable then these evidence are
not discarded merely on this ground."
17. In the case of Smt. Dalbir Kaur Vs. State of Punjab, Cr.LJ 1976, the
Apex Court has made following observations:-
"Interested witnesses are related witnesses and they are natural
witnesses. They are not interested witnesses and their testimony
can be relied upon."
18. In the case of Arjun Singh Vs. State of Chhattisgarh, 2017 Vol.2
MPLJ Cr. 305, the Apex Court held the evidence of related witnesses has the
evidentiary value, court has to scrutinize the evidences with care in each and
every case is a rule of prudence and a rule of law. Facts of witnesses being
related to victim or deceased are not by itself discredit evidence.
19. In the case of Laltu Ghos Vs. State of West Bengal, AIR (2019) SC
1058, the Apex Court has quoted as under:-
" (a) 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.
(b) Actually in many cases, it is often that the offence is
witnessed by a close relative of the victim / deceased, whose
presence on the spot of the incident would be natural. The
evidence of such a witness cannot automatically be discarded by
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labelling the witness as interested."
20. Applying the aforesaid law, now the evidence of prosecution witnesses
is discussed as under:-
Sheetal (PW-7) is daughter of appellant and deceased, so she cannot be
called as interested witness.
21. Learned counsel for the appellant submitted that she was tutored and
she came to the Court with her grandfather and grandmother, so her witness is
not reliable. She has relied on the judgment of the Division Bench of this
Court in the case of Dare Rajgond Vs. State of M.P. 2013(III) MPWN 107
wherein it has been held that child witness tutored, his testimony not reliable,
testimony of other witnesses also not reliable, benefit of doubt extended to the
accused. She has also relied on the judgment of Division Bench of this Court
in the case of Sukhram Vs. State of M.P. 1995 Cr.L.J 595 wherein it has
been held that evidence of child of tender age tainted with infirmities of
description on point of proper identification. Evidence also show that child is
tutored and evidence of sole eye witness, a child of tender age tainted with
infirmities of description on point of proper identification, she is not reliable.
22. In the present case, Sheetal (PW-7) is daughter of appellant and
deceased. She is 8 years old and she totally narrated the incident in
examination-in-chief and she has stated that she saw the incident and her
father assaulted her mother by knife on her neck and stomach and when she
called her grandfather and grandmother, then her father fled away from the
spot. Considering her cross examination, she was substantially intact in her
cross examination and stated that she saw the incident and thereafter narrated
this incident to grandfather and grandmother.
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23. So in the considered opinion of this Court, this witness is not tutored
witness, but she is the only sole witness of this incident. Hence, the judgment
relied upon by the learned counsel for the appellant is of no help to the
appellant.
24. The Evidence Act, 1872 does not prescribe any particular age as a
determinative factor to treat a witness to be a competent one. On the contrary,
Section 118 of the Evidence Act envisages that all persons shall be competent
to testify unless the Court considers that they are prevented from
understanding the questions put to them or from giving rational answers to
these questions, because of tender years, extreme old age, disease whether of
mind, or any other cause of the same kind. A child of tender age can be
allowed to testify if he has intellectual capacity to understand questions and
give rational answers thereto. This position was concisely stated by Brewer, J.
in Wheeler v. United States (159 US 523). The evidence of a child witness is
not required to be rejected per se, but the court as a rule of prudence considers
such evidence with close scrutiny and only on being convinced about the
quality thereof and reliability can record conviction, based thereon. (See
Suryanarayana Vs. State of Karnataka (2001) 9 SCC 129)
25. In Dattu Ramrao Sakhare v. State of Maharashtra [(1997) 5 SCC
341] it was held as follows:
"5.......A child witness if found competent to depose to the
facts and reliable one such evidence could be the basis of
conviction. In other words even in the absence of oath the
evidence of a child witness can be considered under Section
118 of the Evidence Act provided that such witness is able to
understand the questions and able to give rational answers
thereof. The evidence of a child witness and credibility
thereof would depend upon the circumstances of each case.
The only precaution which the court should bear in mind
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while assessing the evidence of a child witness is that the
witness must be a reliable one and his/her demeanour must be
like any other competent witness and there is no likelihood of
being tutored."
26. In the present case, Sheetal (PW-7) was substantially intact in her cross
examination therefore, there is no reason to discard her evidence by merely
stating that grandfather and grandmother had tutored her to give statement.
Gorelal (PW-5) is father of the deceased and Sundarbai (PW-6) is mother of
the deceased. When they came at the spot they found the presence of the
appellant in the house of the deceased and after seeing them the appellant fled
away from the spot. These two witnesses are also totally intact. There is no
reason to disbelieve them.
27. Learned counsel for the appellant submitted that seizure of the knife
from the appellant was not duly proved.
28. Kulwant Singh (PW-12) Investigating Officer who investigated the
matter stated in para 2 of his evidence that he arrested the appellant and
recorded his memorandum under Section 27 of the Evidence Act Ex.P-2 and
seized knife and clothes of the appellant from Shriramkrishna Bagh Colony
from the house of Mahendra Verma. Seizure memo is Ex.P-3. Gajendra
(PW-1) has fully supported the evidence of Kulwant Singh (PW-12).
29. Learned counsel for the appellant further submitted that Gajendra
(PW-1) stated in his cross examination that he signed all the papers in police
station. This statement does not give any benefit to the appellant. Kulwant
Singh (PW-12) was totally intact in his evidence in regard to the
memorandum Ex.P-2 and seizure memo Ex.P-3. Kulwant Singh (PW-12) is a
police officer.
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30. In the case of Karamjeet Singh Vs. State (Delhi Administration)
(2003) 5 SCC 291 the Apex Court held that police officers are doing their
work in official capacity. They are to be treated as common man. Their
evidence cannot be discarded merely because they are police officers. If their
evidence is found unrebutted without malafide, then they must be reliable
Their evidence cannot be discarded only on the ground that they are police
officers.
31. In the present case, Kulwant Singh (PW-12) is totally intact in his
evidence and is substantially corroborated by Gajendra (PW-1). In view of the
aforesaid discussion recovery of blooded knife and clothes which were worn
by the appellant at the time of incident was totally proved. The clothes and
knife were sent for FSL examination by the police. FSL report is Ex.P-17. In
Ex.P-17 it is found that in the clothes of the appellant which were worn by
him at the time of incident and the knife recovered from him had human
blood. So it is the duty of the appellant to disclose the fact as per Section 106
of the Evidence Act as to how and why the human blood was found on the
clothes of the appellant which was worn by him at the time of incident and
knife which was recovered from the possession of the appellant, but appellant
was unable to rebut this fact in defence and he has not stated a single word
about it in his statement under Section 313 of Cr.P.C. Therefore, even if blood
group is not mentioned in the FSL report, the same will not help the appellant.
Hence, the FSL report Ex.P-17 is also against the appellant.
32. Considering the facts and circumstances of the case as well as the
arguments advanced by the learned counsel for the parties, evidence adduced
by the prosecution witnesses as well as the report available on record, it is
found that prosecution is able to prove this case against the appellant. The trial
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Court has properly assessed the evidence available on record and has not
committed any error and has rightly convicted and sentenced the appellant
under the aforesaid Section of the IPC. Hence, conviction and sentence
deserves to be maintained.
33. Resultantly, the appeal filed by the appellant is dismissed and the
conviction and sentence passed by the trial Court is hereby upheld.
Let a copy of this judgment along with the record be sent back to the
concerned trial Court for information and necessary compliance.
(VIJAY KUMAR SHUKLA ) (HIRDESH)
JUDGE JUDGE
RJ
