1
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH
Criminal Appeal No. 910/2002
Dhan Singh, s/o Kodar Singh, aged
about 35 years, Occupation
Agriculturist, r/o village-Tikariya, P.S.
Jawar, Distt. Sehore (M.P.).
Versus
The State of M.P. through Police Station
Jawar, District Sehore, (M.P.).
For the Appellant: Shri S.C. Datt, Sr. Advocate
with Shri Siddharth Datt, Advocate.
For the Respondent: Shri S.K. Rai, Government Advocate.
------------------------------------------------------------------------------------------------
PRESENT:
HONOURABLE SHRI JUSTICE RAKESH SAKSENA
HONOURABLE SHRI JUSTICE S.C. SINHO
------------------------------------------------------------------------------------------------
Date of hearing: 30/03/2010
Date of Judgment: 05/04/2010
JUDGMENT
Per: Rakesh Saksena, J.
Appellant has filed this appeal against the judgment dated 11th April
2002, passed by Additional Sessions Judge, Ashta, district Sehore, in Sessions
Trial No.165/2000, convicting him under Section 302 of the Indian Penal Code
and sentencing him to undergo imprisonment for life with fine of Rs.5000/-, in
default of payment of fine, further rigorous imprisonment for one year.
2. In Short, the prosecution case is that since last two years before the
date of occurrence, which occurred on 26.7.2000, a dispute between accused
Dhan Singh on one side and Gangaram (deceased) on the other side was going
on in respect of passage to field. Litigation in respect of the same was also
pending in the Court. It is alleged that at about 2.00 O’clock in the night when
2
Gangaram, his wife Imrat Bai and other family members, Tej Singh, Surendra
and Ram Singh were sleeping in the outer courtyard of their house, suddenly
they heard Gangaram shouting; Imrat Bai, her son and Tej Singh immediately
got up and in the light of electric bulb saw accused Dhan Singh standing near
the head of Gangaram wielding an axe. Dhan Singh had already inflicted a
blow with the axe to Gangaram. When he raised the axe again, Imrat Bai and
Tej Singh caught hold of him. Dhan Singh tried to run away by pushing them,
but Munnalal and Kodar Singh (acquitted accused person) came for his help.
Dhan Singh then ran away with the axe. There was an injury on the head of
Gangaram, which was bleeding profusely. Hearing the hue and cry, Vikram,
Ramlal and some other persons reached at the spot. Imrat Bai informed them
about the occurrence. When Gangaram was being taken to police station in a
tractor, he became unconscious. Imrat Bai lodged the report of the incident
(Ex.P/2) at Police Station, Jawar, at about 4.15 a.m.. Police registered a case
under Section 307 of the Indian Penal Code. Gangaram was sent for medical
examination and treatment to Government Hospital, Ashta.
3. Dr. R.C. Gupta (PW-10) examined Gangaram at about 6.15 a.m. and
found him dead. Police recorded the intimation about his death (Ex.P/22) in
Ashta Hospital and sent the dead body for postmortem examination. On the
same day, Dr. K.K. Chaturvedi (PW-9) conducted postmortem examination of
the body of Gangaram and found an incised wound 7 cm x 2cm x10 cm on his
parietal-temporal bone. As a result of this injury, both the skull bones and the
brain matter of deceased had been cut.
4. After receiving the Murg intimation (Ex.P/22) police converted the
offence from Section 307 of the Indian Penal Code to Section 302 of the Indian
Penal Code.
5. After the inquest and further investigation, charge sheet was filed
3
against the appellant and co-accused Amar Singh and Kodar Singh.
6. All the three accused persons abjured their guilt and pleaded false
implication. According to them, they were falsely implicated in the case
because of past enmity.
7. Learned Additional Sessions Judge, after trial and upon appreciation of
the evidence adduced in the case, held the appellant guilty and convicted and
sentenced him as mentioned above. However, finding the evidence insufficient
against co-accused Amar Singh and Kodar Singh acquitted them.
8. We have heard the learned counsel for the parties and perused the
evidence and the material on record. It was no longer disputed that deceased
Gangaram died of injury received by him on his head. It is also reflected from
the evidence of Dr. R.C. Gupta (PW-10) that Gangaram was brought to him by
Police, Ashta, on 27.6.2000. He had examined him and found him dead. He
had given his report (Ex.P/10). Dr. K.K. Chaturvedi (PW-9) performed the
postmortem examination of the body of Gangaram and found an incised
wound on his left parieto temporal region of skull obliquely downward and
backward. Margins of the injury were clearcut; size of the wound was
7cmx2cmx10cm. Through the wound brain matter was visible with cutting of
the tissue and bone. Injury was antemortem in nature. In his opinion, the
cause of death was coma as a result of injury to vital organ brain within 24
hours from the commencement of the postmortem examination. Postmortem
examination report is Ex.P/9. From the first information report (Ex.P/2) and the
Murg intimation (Ex.P/22), it was clearly evident that deceased Gangaram died
of the incised injury inflicted on his head.
9. Learned counsel for the appellant, however, submitted that the trial
Court gravely erred in placing implicit reliance on the evidence of eyewitnesses
viz. Imrat bai (PW-2), Tej Singh (PW-3), Surendra (PW-4) and Ram Singh
4
(PW-5). According to him, it was not possible for the witnesses to have seen
the actual assault by the accused on the head of deceased. Appellant was
falsely implicated due to past enmity.
10. Learned counsel for the State, on the other hand, justified and
supported conviction of the appellant.
11. We have gone through the entire evidence on record. Imrat Bai (PW-2)
deposed that she knew the appellant. There had been some dispute about a
passage between them on one side and accused Dhan Singh on the other side.
The dispute was continuing since last one and a half years. In the night of
incident, they were sleeping in the courtyard of their house. Suddenly, at
about 2.00 O’clock in the night, Dhan Singh came there and inflicted an axe
blow to Gangaram. Other two accused persons were also standing near him.
Gangaram shouted, hearing which, she and Gangaram’s younger brother Tej
Singh got up and saw Dhan Singh there. When Dhan Singh again tried to lift
his axe for assaulting Gangaram, she and Tej Singh caught him, but Munna
and Kodar rescued him. Gangaram had sustained one injury on his head, out
of which blood was oozing out. Hearing the noise, her son Ram Singh and
Surendra Singh also got up. Some persons from the neighbourhood also
reached there. She categorically deposed that all the members of her family
were sleeping in the courtyard near the deceased. She then went to lodge the
report with Tej Singh, Ram Singh Sarpanch and Vikram Singh Patel. While
Gangarm was being taken to hospital, he breathed his last. According to her,
she lodged the first information report (Ex.P/2). Despite a lengthy and probing
cross-examination, this witness stood firm. She deposed that the house of her
husband’s brother Tej Singh was situated in the neighbourhood and the
courtyard in which they were sleeping lay interjacent between the two houses.
12. Learned counsel for the appellant argued that Imrat Bai disowned that
5
she mentioned about the light in the first information report (Ex.P/2), but on
perusal of the first information report, it is apparent that the presence of
electric bulb was clearly mentioned. Though there were some contradictions in
the statement of this witness, but they were not of the nature substantially
affecting the credibility of her evidence. On the contrary, the Statement of this
witness stands corroborated by the first information report (Ex.P/2) lodged by
her at about 4.15 a.m. in which the name of appellant was clearly mentioned.
Apart from that, her evidence finds further support from the evidence of Tej
Singh (PW-3), Surendra (PW-4) and Ram Singh (PW-5). The evidence of these
witnesses, who happened to be the family members of the deceased, cannot
be discarded merely on the ground that they are close relatives of the
deceased. However, it requires a closer scrutiny.
13. Tej Singh (PW-3), younger brother of deceased, Surendra (PW-4) and
Ram Singh (PW-5), both sons of deceased, categorically stated that they were
asleep on different cots in the courtyard of their house. On hearing the scream
of Gangaram, they got up and saw appellant Dhan Singh standing near the
head of Gangaram weilding an axe. Tej Singh and Imrat Bai caught hold of
Dhan Singh, but Kodar Singh and Munna got him released and all of them ran
away. On their shouting, Umrao, Chander and Vikram Singh came at the spot,
to whom they narrated the occurrence.
14. Umrao (PW-6) and Chander Singh (PW-7) though admitted that on
hearing hue and cry from the house of Gangaram they reached to his house
and found Gangaram injured, but they did not tell that the incident was
narrated to them by anybody. They were declared hostile. However, Vikram
Singh (PW-12) deposed that when he reached at the spot in the night, wife of
Gangaram told him that Dhan Singh assaulted Gangaram with an axe and that
she asked him to bring a tractor. He then brought a tractor from his Khalihan
6
and took Gangaram and his wife to police station and the hospital. Since this
witness did not name the other accused person, he was declared hostile.
Learned counsel for the appellant argued that in his police statement (Ex.P/17)
Vikram Singh did not say that he asked Imrat Bai as to who assaulted
Gangaram and she disclosed that Dhan Singh assaulted Gangaram and that he
should bring a tractor. However, on perusal of Ex.P/17, it is found mentioned
that Imrat Bai told to Vikram Singh that Dhan Singh had inflicted axe blow to
Gangaram. Thus, the contradiction, as pointed out by the learned counsel for
the appellant, does not appear to be material.
15. Learned counsel for the appellant strenuously urged that it was not
possible for the deceased to have shouted after receiving the injury on his
head and that it was also not possible for the witnesses to have got up
immediately at the time when the assault was made. It is true that the injury
found on the head of Gangaram was serious in nature as it had injured the
brain also, but in view of the categoric evidence of eyewitnesses, it cannot be
held that deceased could not have cried even once. Since the wife, the brother
and the sons of deceased were sleeping very close to the cot of deceased in a
courtyard, it was also possible that the witnesses might have woke up by the
sound of impact of the axe on the head of Gangaram.
16. We have carefully scrutinized the evidence of eyewitnesses viz. Imrat
Bai (PW-2), Tej Singh (PW-3), Surendra (PW-4) and Ram Singh (PW-5). Their
evidence stands corroborated by the evidence of Dr. K.K. Chaturvedi (PW-9),
who found one incised injury on the head of deceased. On going through the
same, we find no intrinsic inconsistency and contradiction between them so far
as the basic prosecution case is concerned. It is apparent that all the aforesaid
witnesses were sleeping in the courtyard in the night. So called minor
inconsistencies in the evidence of the said eyewitnesses, pointed out by the
7
learned counsel for the appellant, in our view, do not detract the intrinsic
worth of the evidence of witnesses so as to dub them as unreliable. We do not
find anything in their evidence as to discard them from consideration. In our
considered opinion, trial Court rightly relied upon the evidence of eyewitnesses
in holding the appellant guilty of causing death of the deceased.
17. The next submission of the learned counsel for the appellant had been
that since only single blow of axe was inflicted by the appellant, his conviction
under Section 302 of the Indian Penal Code was not justified. At the most, it
could be a case under Section 304-I of the Indian Penal Code. He placed
reliance on Shivappa Buddappa Kolkar v. State of Karnataka & Ors-(2004)
13 SCC 168 .
18. In above cited case, a sudden quarrel had erupted when accused tried
to take his bullock cart through the field of the deceased. In the course of
quarrel, accused suddenly took the axe kept in the cart and hit the deceased
on his occipital region, which resulted in depressed fracture of the skull bone
and ultimate death of the deceased. In these circumstances, the Apex Court
held that by inflicting a single blow on the head with the axe on the spur of the
moment causing depressed fracture on the skull bone of the deceased it could
not be gathered that the accused had intention to cause death of the deceased
particularly when injury inflicted was not shown to be sufficient in ordinary
course of nature to cause death and the accused was liable to be convicted
under Section 304-II of the Indian Penal Code. The above proposition is not
attracted in the present case because the appellant had inflicted a blow with an
axe on the head of deceased while he was lying asleep and the injury was
sufficient in ordinary course of nature to cause death. In State of Rajasthan
v. Dhool Singh-AIR 2004 SC 1264 the Apex Court held that the number of
injuries is not always determining factor in ascertaining the intention. It is the
8
nature of injury, the part of body where it is caused, the weapon used in
causing such injury, which are the indicators of the fact whether the accused
caused the death of the deceased with an intention of causing death or not.
19. After bestowing our anxious consideration to the submissions made by
the learned counsel for the appellant and having gone through the record, we
find that the trial Court rightly found the appellant guilty of an offence
punishable under Section 302 of the Indian Penal Code. Accordingly, the
impugned judgment of conviction and sentence passed by the trial Court is
affirmed.
20. Appeal stands dismissed.
(RAKESH SAKSENA) (S.C. SINHO)
JUDGE JUDGE
shukla
9
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
Criminal Appeal No. 910/2002
Dhan Singh
Versus
The State of Madhya Pradesh
JUDGMENT
For consideration
(Rakesh Saksena)
JUDGE
__/04/2010
Hon'ble Shri Justice S.C. Sinho
JUDGE
__/04/2010
POST FOR /04/2010
(Rakesh Saksena)
Judge
___/04/2010