Babu Lal vs State of Rajasthan

Kanwaljit Singh Ahluwalia, J.—Babu Lal S/o. Sita Ram, was tried by the Court of Additional Sessions Judge, (Fast Track), No. 2, Bundi for having caused murder of Manohar Singh, father of complainant Ishwar Singh (P.W.2).

The case of the prosecution in nutshell is that on 20th November, 2006, Babu Lal with a lathi having iron wire attached, had caused injuries on the head of Manohar Singh, who died in M.B.S. Hospital, Kota.

The trial Court vide impugned judgment dated 23rd June, 2008 held appellant guilty of offence under Section 302 IPC.

Having convicted the appellant for offence under Section 302 IPC for causing murder of Manohar Singh, the trial Court vide a separate order of even date sentenced the appellant to undergo life imprisonment, and to pay a fine of Rs. 1000/-, and in default thereof to further undergo three month simple imprisonment.

Aggrieved against the conviction, and sentence the present appellant has instituted the instant appeal.

The criminal proceedings were initiated on the basis of written report (Ex. P/2) submitted by Ishwar Singh (P.W.2), son of the deceased Manohar Singh before Head Constable, Chhotu Lal (P.W.7).

The written report (Ex. P/2) when translated into English reads as under:--

"To

Station House Officer, Police Station, Indergarh.

Subject: For taking action in regard to beating given to the Manohar Singh, father of the applicant.

Sir,

In reference to above noted subject, it is submitted that Manohar Singh S/o. Raghunath Singh, R/o Mahavir Nagar, III Kota, father of the applicant is posted as hand pump Mistri at Indergarh Water Supply Public Health Department. He was tenant in the house of Narsingh Ji. In the said house, Babu Lal S/o. Sitaram Keer R/o Datarda Distt. Shoypur (Madhya Pradesh) was also staying as tenant. On 20th November, 2006, father of the applicant was present at Indergarh in his rented house. Babu Lal S/o. Sita Ram committed a murderous assault with an iron rod on father Manohar Singh, and due to beating given, he received an injury on the head, from which, blood started oozing. Father of the applicant was taken to Indergarh Hospital, from where, doctor had referred him to M.B.S. Hospital, Kota. Narsingh etc. brought him to Kota, and they informed me about the incident. My father is unconscious. Therefore, report is presented. Action be taken. Signed

Ishwar Singh S/o. Manohar Singh, B/c Rajput, R/o Mahavir III Kota."

Ram Pratap (P.W.12), stated that on 20th November, 2006, he was posted as ASI at Police Station, Indergarh. A telephonic information was received at the police station that an injured person has been admitted in the hospital. Upon receipt of information, he alongwith ASI, Raghuveer Singh went to the hospital. There injured was found in unconscious condition. The attending doctor declared Manohar Singh injured, as, unfit to make statement. Later, Manohar Singh was referred for treatment to the Kota hospital.

Head Constable, Chhotu Lal (P.W.7), deposed in Court that on 20th November, 2006, he was posted as Head Constable at Police Station, Indergarh. He was sent by the SHO, Police Station, Indergarh to ICU Ward at Kota. On reaching there, Ishwar Singh (P.W.2) son of Manohar Singh presented written report (Ex. P/2). He brought the report to the police station, and presented the same before SHO.

Station House Officer, Sunita (P.W.11), stated that Chotu Lal (P.W.7), Head Constable, brought written report (Ex. P/2), and on the basis thereof, she had drawn FIR (Ex. P/14), and further she on the demarcation given by Narsingh (P.W.4), had prepared site plan (Ex. P/6) of the spot.

As is apparent from the evidence of the Investigating Officer, and the written report (Ex. P/2) submitted by Ishwar Singh (P.W.2) son of the deceased, that he is not an eyewitness of the occurrence.

Before we take note of the testimony of the eyewitnesses, it will be necessary for us to notice the medical evidence.

Dr. Hariprasad Lakwal (P.W.3) stated that on 20th November, 2006, he was posted as Senior Medical Officer at Primary Health Center Indergarh. He had examined Manohar Singh, aged 45 years on that day, at 7.00 P.M. and found following injuries as per injury report (Ex. P/5):--

"(i). Lacerated wound 1 1/2" x 1/4" x 1/4" on left parietal region of scalp with bleeding present.

(ii). Lacerated wound 1"x 1/8"x 1/8" on left frontal region of scalp with bleeding present."

Dr. Krishan Hari Sharma (P.W.6), stated that on 20th November, 2006, he was posted as Assistant Professor, Neuro Surgery Department, Medical College, M.B.S. Hospital, Kota. On that day, he had attended Manohar Singh who was admitted in the emergency ward. CT Scan of the head of the patient was conducted at 4.40 A.M. Subdural haematoma was found beneath frontal temporal parietal region. Surgery was conducted on 21st November, 2006 at about 5.A.M. and subdural haematoma of size 10x10x3 cm. was removed. During treatment on 26 November, 2006, condition of the patient deteriorated, and he died in the ward on 10th December, 2006 at 9.05 A.M.

Dr. Deepak Sharma (p.W.1), had conducted autopsy on the dead body of Manohar Singh on 10th December, 2006 (vide Ex. P/1). This witness found stitched injuries on the person of deceased, since injuries were surgical wound, we need not notice the nature or dimension of injuries noted in the postmortem report.

In cross-examination the witness stated that on the right side of the head, there was no injury, and there was one injury only which was present on the left side, as operation was conducted only on the left side.

Ishwar Singh (P.W.2), reiterated as to what was stated in the written report. As stated earlier, he was not the eyewitness of the occurrence. This witness stated that on the day of occurrence, he was undergoing his studies at Kota. However, this witness stated that in the house of Narsingh (P.W.4), where the accused was residing Dhanraj Banjara, Ratan Lal, and Kalulal were also staying.

Narsingh (P.W.4), owner of the house stated that in the month of November at 6.30 P.M. he was present in his house. He is staying in the half portion of the house, and the remaining half portion, was given rent by him to eight/ten persons. This witness gave names of the tenants as Ghanshyam Banjara, Devi Lal Gurjar, Vinod Kumar, Suresh, Om Prakash, Kalu Keer, Bhanwar Pal and Bhagwat. This witness stated that Manohar Singh was going to urinate in the open bada then, Devilal and, Ghanshyam Banjara shouted that Babu Lal is beating Manohar. The witness came running, and saw that Babu Lal caused one or two injuries with the lathi fixed with iron wire on the head of Manohar Singh. Manohar Singh fell on the spot. He hired an auto, and had brought Manohar singh to hospital. From where, injured was referred to Kota.

In cross-examination this witness stated that when he reached at the spot, Babu Lal was running away from the spot. In cross-examination he further submitted that Manohar used to take liquor.

Dhanraj (P.W.5), stated that when he returned to his house, he had heard that a fight had taken place between Babulal, and another person, and Babu Lal had killed that man. This witness stated that Manohar Singh was lying between the stones. This witness was declared hostile having resiled from the previous statement.

Kalu (P.W.8), another eyewitness has also turned hostile, and stated in the Court that he had not seen any occurrence.

Dev Lal (P.W.13), another eyewitness also stated that he had not seen anybody causing injuries, and this witness was also declared hostile.

Constable, Bherulal (P.W.10), being in charge of Malkhana, and Constable Mohan Lal (P.W.9), were examined to prove link evidence as Mohan Lal (P.W.9), had carried sealed packets to the Forensic Science Laboratory entrusted to him by Bheru Lal (P.W.10).

Ashok Kumar Chaudhary (P.W.14), being Investigating Officer, proved various facet of investigation.

Thereafter, prosecution closed its evidence.

Thereafter, statement of the accused under Section 313 Cr.P.C. was recorded, where he denied all incriminating circumstances put to him. The version given by the accused under Section 313 Cr.P.C. when translated into English reads as under:--

"I have not killed Manohar Singh. He had consumed alcohol. He had given abuses to me. I gave him push, he fell on the stones. I have not caused him injuries with the stick."

The accused has not examined any witness in his defence.

Shri Rajneesh Gupta, counsel appearing for the appellant has contended that nobody has witnessed the occurrence. Counsel submits that Dhanraj (P.W.5), Kalu (P.W.8) and, Dev Lal (P.W.13), being eyewitness have turned hostile to the prosecution, and they have stated that they have not seen the occurrence. It is contended by the counsel that Narsingh (P.W.4), though in examination-in-chief has stated that accused has caused one or two injuries but in cross-examination he has stated that he had seen the accused running away from the spot. Thus, counsel submits that even Narsingh (P.W.4), is not an eyewitness of the occurrence.

We have give our thoughtful consideration to the submissions advanced by the counsel for the appellant.

Narsingh (P.W.4), is owner of the house, in which deceased, and accused were tenant. Narsingh (P.W.4) in examination-in-chief stated that when he reached running at the spot, accused gave one or two blows from a lathi having iron rod, on the head of Manohar.

To be precise, the witness stated (***)

In cross-examination the witness stated to be correct that when he reached at the spot, he saw accused running away. The accurate words are (***)

We do not find any contradiction between the two above lines. The witness came running, and from a distance saw accused giving one or two blows but when he exactly reached at the spot, where Manohar Singh was lying, accused was seen running away from the spot. Thus, both the statements can be reconciled. Furthermore, accused in his statement under Section 313 Cr.P.C. has admitted his presence, and also presence of the deceased. He has given a version that he had given a push, due to which deceased fell on the ground where stones were lying.

It has been held by the Hon''ble Apex Court in the case of Mohan Singh Vs. Prem Singh and Another, (2003) CriLJ 11 : (2002) 8 JT 7 : (2002) 7 SCALE 168 : (2002) 10 SCC 236 : (2002) 3 SCR 5 Supp that the incriminating portion in the statement of the accused can be used to corroborate prosecution evidence.

It will be apposite here to reproduce the relevant portion of the judgment of Mohan Singh (supra):--

"27. The statement made in defence by accused under Section 313, Cr.P.C. can certainly be taken aid of to lend credence to the evidence led by the prosecution, but only a part of such statement under Section 313 of the Code of Criminal Procedure cannot be made the sole basis of his conviction. The law on the subject is almost settled that statement under Section 313 Cr.P.C. of the accused can either be relied in whole or in part. It may also be possible to rely on the inculpatory part of his statement if the exculpatory part in found to be false on the basis of the evidence led by the prosecution See Nishi Kant Jha Vs. The State of Bihar, AIR 1969 SC 422 : (1969) CriLJ 671 : (1969) 1 SCC 347 : (1969) 2 SCR 1033 .

"23. "In this case the exculpatory part of the statement in Ex. 6 is not only inherently improbable but is contradicted by the other evidence. According to this statement, the injury which the appellant received was caused by the appellant''s attempt to catch hold of the hand of Lal Mohan Sharma to prevent the attack on the victim. This was contradicted by the statement of the accused himself under S, 342 Cr.P.C. to the effect that he had received the injury in a scuffle with a herdsman. The injury found on his body when he was examined by the doctor on 13th October 1961 negatives both these versions. Neither of these versions accounts for the profuse bleeding which led to his washing his clothes and having a bath in the river Patro, the amount of bleeding and the washing of the blood-stains being so considerable as to attract the attention of Ram Kishore Pandey, PW 17 and asking him about the cause thereof. The bleeding was not a simple one as his clothes all got stained with blood as also his books, his exercise book and his belt and shoes. More than that the knife which was discovered on his person was found to have been stained with blood according to the report of the Chemical Examiner. According to the post mortem report this knife could have been the cause of the injuries on the victim. In circumstances like these there being enough evidence to reject the exculpatory part of the statement of the appellant in Ex, 6 the High Court had acted rightly in accepting the inculpatory part and piercing the same with the other evidence to come to the conclusion that the appellant was the person responsible for the crime."

[emphasis supplied]

A perusal of injury report (Ex. P/5), reveals that Manohar Singh had suffered two injuries. Injury No. 1 was on the parietal region of scalp, whereas injury No. 2 was on the left frontal region of scalp. It is difficult to comprehend that both the injuries at different seat will be suffered due to fall on stones. It is a case of causing two blows on the head of the deceased.

Shri Rajneesh Gupta, Advocate has further contended that doctor who conducted postmortem has specifically stated that there is one injury on the head of the deceased. Thus, we should convert the offence to under Section 304 Part I IPC.

We are of the view that argument raised by the counsel for the appellant is not tenable. The doctor who conducted autopsy had not medico-legally examined Manohar singh. At the time of autopsy, there were only surgical wound. Thus, the opinion given by the doctor cannot be given due credence. Even if we believe that the accused has caused one injury then too, from the prosecution case, nothing has been extracted by the defence that the occurrence was a sudden affair, without any pre-mediation, or had ensued due to exchange of hot words, or abuses given by the deceased. No suggestion to this effect has been given to any witness. Therefore, we also reject the alternative argument advanced before us.

Taking totality of the circumstances, we find no merit in the present appeal, and consequently we affirm the finding of conviction and sentence of the appellant recorded by the trial Court and, hereby, dismiss the appeal.