Baliram vs State Of M.P.

This appeal has been preferred by the appellant- Baliram under Section 374 (2) of Cr.P.C challenging the judgment dated 13.04.1996 passed by A.S.J, Sohagpur in S.T. No. 198/1993 wherein the appellant has been convicted for offence under Section 304 of I.P.C and sentenced to rigorous imprisonment for ten years and fine of Rs.500/-, in default of fine, he is to undergo additional rigorous imprisonment of six months.

The appellant- Baliram and other co-accused persons including Chotte Bhaiya, Sattu Lal, Santosh, Govind were prosecuted in S.T. No. 198/1993 in which the accused Sattu Lal and Govind were sentenced for six months simple imprisonment for offence under Section 323, Santosh has been sentenced for one year simple imprisonment for offence under Section 324 of I.P.C and accused Chotte Bhaiya has been acquitted giving the benefit of doubt. The appellant has been sentenced for offence under Section 304 of I.P.C and sentenced as aforementioned.

The present appeal has been preferred by appellant- Baliram only. Therefore, this appeal is considered only with regard to appellant- Baliram.

It is not disputed that father of the deceased Raghuraj Singh is Jalam Singh and father and uncle of other accused persons is Dinanath. There was a civil dispute between Jalam Singh and Dinanath.

Bereft of the unnecessary details, the facts requisite for disposal of this appeal, in brief, are that on 31st May, 1992 at about 10 am at village Simri Kishore near the Tarmind tree, Raghuraj Singh, his brother Gambhir Singh and his nephew Mishri Lal were settling the rent of the land purchased by Lalita Bai. There was a civil suit between Dinanath and the father of Raghuraj Singh, Jalam Singh in which Jalam Singh own the civil suit, therefore, the deceased and his associates had gone to the village to give the land on rent/contract. At that time, the accused persons including appellant- Baliram came, armed with different weapons. The appellant was armed with Bakka. The accused persons abused the deceased and his companions. When Raghuraj Singh asked them not to abuse and told them that they have own the civil dispute, the appellant inflicted injury to Raghuraj by means of the Bakka. Other accused Santosh inflicted injuries by Ballam to Mishri Lal and accused Sattu Lal inflicted injuries by Lathi to Gambhir Singh. Meanwhile, the brother of Santosh namely Govind and the brother of appellant namely Chotte Bhaiya also rushed to the spot, armed with Lathi and Axe and inflicted injuries to Gambhir Singh and Mishri Lal on their back. When Raghuraj Singh and his associates shouted, the appellant- Baliram exhorted the other accused saying that nobody should remain alive. Bade Dikhit, Ratan Singh, Babu Bakha, Nawab Purviya and Muni Bai have seen the incident. Injured Raghuraj Singh and Mishri Lal were taken to Khaparia from there they were shifted to hospital with the help of a tempo. Gambhir Singh accompanied them Narayan Singh went by means of motor cycle to police station Piparia and lodged the report. Raghuraj Singh died because of the injuries. The tempo driver also informed the police about the injured persons being dropped at the hospital. After the information, postmortem was performed. Ordinary and blood stained soil were seized from the spot. The Patwari prepared the spot map. The accused persons were arrested. From their possession, weapons were seized.

After due investigation, charge sheet has been filed against the accused persons. The learned A.S.J, Shohagpur framed charges under Section 302 in alternative Section 302 / 34 of I.P.C, 323 read with Section 34 of I.P.C, Section 324 read with Section 34 of I.P.C. The accused persons abjured guilt. The learned Additional Sessions Judge, after adducing evidence has passed the judgment impugned on 13.04.1996, sentenced the appellants for ten years rigorous imprisonment with fine of Rs.500 to appellant- Baliram, accused Sattu Lal and Govind for offence under Section 323 and Santosh for offence under Section 324 of I.P.C.

The appellant- Baliram has preferred this appeal on the ground that the learned Court below failed to see that Jalam Singh (PW 3) had sent his sons the deceased, Baliram, Gambhir Singh (PW 10) and Mishri Lal (PW 11) to village Simri Kishore to give the land on lease, in relation to which they claim to have won the civil case in their favour. Though copy of the judgment in his favour has not been filed. It was a free fight. The complainant side were the aggressors. The origin of the quarrel was not relied by the Court. Prosecution failed to explain the injuries sustained by the appellant. The defence version should have been accepted. The appellant could not have been held responsible for the injury sustained by the deceased. The complaint side had also beaten the appellant and other accused persons. The appellant are protected by the principle of right to self defence. Therefore, the conviction of the appellant is not good in the eyes of law.

Learned counsel appearing for the appellant has submitted that there was a previous enmity regarding the land. It was not a free fight. Forensic Laboratory Report has not been received. There is a contention that the complainant side owned the civil suit. But no such judgment has been pronounced in favour of the complainant. The complainant party being the aggressor tried to capture the land.

Learned G.A for the respondent/State has vehemently opposed the contentions and submitted that the appellant was responsible for causing injury to Raghuraj Singh, which resulted into his death. Therefore, the learned trial Court has rightly held the appellant convicted for the offence. Referring the pieces of evidence adduced by the prosecution, it is contended that the judgment impugned do not call for any interference.

Perused the record and the judgment impugned.

Dr. A.K. Verma (PW 4) conducted the postmortem of deceased Raghuraj Singh son of Jalam Singh on 31st May, 1992. He prepared the postmortem report Ex.P/15. According to him, Raghuraj Singh received following injuries:-

(i) A incised wound 3"x 1 1/2" x 1 1/2 " on the right side of the skull.

(ii) A incised wound 2 1/2 " x 1" x1" on the left side of the skull.

(iii) A Lacerated wound 2" x1"x1" on the left leg. These injuries are caused by sharp cutting object. Injury Nos. (i) and (ii) were grievous in nature.

(iv) Abrasion 6"x 1"x 1/2" on the back of vertical injury.

(v) Abrasion 5"x 1/2" x 1/2 " on the 2" lateral of the injury No. 4 of the right side of the vertical.

(vi) Abrasion 4"x 1/2" x 1/2" on the left side of the back vertical middle.

(vii) Abrasion 7"x 1/2" x1 1/4" on the lateral to injury No. 6.

(viii) Incised wound 3"x1"x 1" on the upper part of left leg.

According to the medical officer, death was caused as a result of head injury and excessive loss of blood. It is observed that Raghuraj died due to the injuries. The analysis of evidence required to be examined whether the injuries were caused by the appellant with intention to murder Raghuraj Singh.

Jalam Singh (PW 3) father of deceased- Raghuraj Singh has stated that there was a dispute of land between him and the accused persons. The land dispute was decided by the Court at Bareli. He owned the case. He decided to give the land on a rental basis (Sikmi/Adhiya/Kouli). The land was situated at Simri Kishore. Deceased- Gambhir Singh and Mishri Lal had gone to village Simri Kishore to give that land to some one on rental basis (sikmi). He could come to know about the incident through a bangle salesman at the village.

Mohan Singh (PW 5) claimed to be an eyewitness. According to him when he heard the noises, rushed to the spot, he saw that the accused/appellant- Baliram with his associates were causing injuries to Raghuraj Singh. According to him other accused persons were also having axe and Ballam etc. But appellant- Baliram inflicted injury by means of Bakka on the head of Raghuraj Singh. When Mishri Lal tried to save him, he was also inflicted injuries by means of Ballam on his back. When Gambhir Singh tried to save Raghuraj Singh, he was also injured by other accused persons. Lalita Bai and Mani Bai also reached the spot. Subsequently, injured Mishri Lal and deceased- Raghuraj Singh were taken to Piparia by means of bullock cart.

Gambhir Singh, the younger brother of Raghuraj Singh accompanied Raghuraj Sing, Mishri Lal to give the land on rent (sikmi). When they were at village Simri Kishore near the house of Ratan Singh, they were speaking to Ratan Singh and Babu. Before talks could complete, the accused persons came there armed with weapons and started abusing and threatened them how they will give the land. The accused persons immediately started assaulting. Raghuraj Singh interrupted them. He also asked Sattu Lal to persuade the accused persons and to see the judgment regarding the land. The appellant- Baliram immediately came forward and inflicted injury to Raghuraj Singh. When Raghuraj Singh ducked, appellant- Baliram again inflicted a blow on the head of the deceased.

Mishri Lal was also received injuries when he tried to save Raghuraj Singh. On receiving injuries Raghuraj Singh fell down on the ground. At that time, wife of Raghuraj Singh, Mani Bai and Lalita Bai rushed and fell over Raghuraj Singh to save him. Mohan Singh tied a "Gamcha" on the head of Raghuraj Singh. From there Raghuraj Singh was sent to hospital by means of a bullock cart. Raghuraj Singh and Mishri Lal were then shifted to a tempo from there. Narayan Singh helped them to call a tempo. By means of the tempo, they went to Piparia. Gambhir Singh lodged the report Ex. P/25. On the same tempo, the injured was sent to hospital. At the hospital Raghuraj Singh was declared dead. Mishri Lal was treated by the doctor.

Another important witness of the incident is Mishri Lal (PW 11) who has completely corroborated the statement of Gambhir Singh (PW 10). Mishri Lal (PW 11) was also at the place of incident when the injury was caused. Mishri Lal (PW 11) himself sustained several injuries. The injuries were treated at the hospital. According to Doctor A.K. Verma (PW 4) Mishri Lal sustained following injuries.:-

(i) A incised wound 1?" x 1/2" x 1/2" on the back.

(ii) A lacerated wound 2"x 1/2" x 1/1 " on the left side of skull.

(iii) Lacerated wound 1/2" x 1/2" x 1/2 " near the left ear.

(iv) One bruise 1"x 1/2 " on the left buttock. These injuries were simple in nature. The M.L.C report is Ex. P/16.

Gambhir Singh (PW 10), the younger brother of the deceased- Raghuraj Singh also sustained injuries, therefore, his presence on the spot is not questionable. He received the following injuries.:-

(i) Lacerated wound 1/2 x 1/2 x 1/2" on the side of the right eye.

(ii) A bruise 2 x 1/2" on the left hand.

(iii) A bruise 1 1/2 x 1/2" on the back.

All the injuries are simple in nature and Ex. P/17 is the M.L.C report submitted by Dr. A.K. Verma (PW 4).

According to Mishri Lal (PW 11), the accused persons were opposing to give the land to someone on rent (sikmi), came there armed with weapons. They started abusing. When Raghuraj Singh told them that they have owned the case and they wanted to give the land on sikmi and he has the copy of the judgment. Appellant- Baliram immediately inflicted injury on the head of Raghuraj Singh by means of Gadasi (Bakka) while Raghuraj Singh tried to escape the injury. When this witness tried to save Raghuraj at that time the other accused persons inflicted injuries to this witness, therefore, he could not save Raghuraj Singh. Raghuraj Singh sustained injury and fell down on the ground. Mani Bai, Lalita Bai, Mohan Singh had come to the scene of crime hearing the commotion. In their presence, the accused persons inflicted injuries. Mani Bai, Lalita Bai and Mohan Singh tried to save Raghuraj Singh and Mishri Lal and fell over them. The injured were taken to village Khaparia by bullock cart, from there tempo was made available, which was brought by Naryan Singh. From there they were sent to Piparia.

In this regard statement of Mohan Singh (PW 5) is also very important. According to him, at about 10 am, when he was at his residence at village Simri Kishroe, he heard shouts of fighting. He came to the place where the fight was going on. The accused persons including appellant were assaulting Raghuraj Singh. The appellant armed with a Bakka and others armed with other weapons and lathi. Appellant inflicted injury on the head of Raghuraj Singh. Mishri Lal sustained injuries by other accused persons on his back. Gambhir Singh also sustained injuries by other accused persons. Mani Bai and Lalita Bai had also come to the spot. After the accused persons left the place, the body of Raghuraj Singh was sent to Piparia and injured Mishri Lal was also sent to Piparia for treatment. According to him, the spot map Ex. P/18 was prepared by the police.

Mani Bai (PW 12) the wife of Raghuraj Singh has also supported the prosecution story. According to her, when she heard shouts, she came to the scene of crime. Raghuraj Singh was at Simri Kishore to rent out (sikmi) the land. Gambhir Singh and Mishri Lal were also with him. The accused persons reached there and had a quarrel. On hearing the noises when they reached the spot, they saw the appellant inflicting injury to Raghuraj Singh on his head by means of a Bakka. Raghuraj Singh sustained injury on the head and fell on the ground. Other accused persons inflicted injuries to Mishri Lal and Gambhir Singh. Other accused persons have not preferred any appeal, discussion of their acts have been avoided.

The statements of the witnesses have been fully corroborated by the postmortem report Ex. P/15.

The injury No. (i), (ii) caused to Raghuraj Singh are by sharp cutting objects. The injury Nos. (i) and (ii) which were caused on the head are grievous in nature.

The appellant pleaded that they are not aggressors and the complaint party were the aggressors which is unsustainable. The complainant party were trying to give the land to someone on sikmi/adhiya basis which was earlier possessed by the accused persons and this was the reason for the quarrel. Injury sustained by the appellant- Baliram are lacerated wounds on the right side of the head and on the head. One bruise on the hand and one abrasion on the elbow. All the injuries are very simple in nature. His M.L.C report is Ex. D/8. The appellant''s plea of self defence is not acceptable for the reason that not a single injury is grievous in nature. The incident took place on the path near the house of Mohan Singh. There was no crop in the field. There was no allegation of any theft of crop or the complainant party and the deceased Raghuraj Singh did not start the quarrel. When the complainant party wanted to give the land to someone on sikmi basis, the appellant and his other associates opposed the same and started the quarrel. Therefore, it would not be appropriate to say that the appellants are the aggressors.

There has been certain contradictions and omissions in the statement of witnesses but these contradictions and omissions are but natural and rules out all the possibilities of tutoring. The Hon''ble Apex Court in the case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753 needs mention.

" Over much importance cannot be attached to minor discrepancies. The reasons are obvious:-

(i) By and large a witness cannot be expected to possess a photographic memory and to recall the details of incident. It is not as if a video tape is replayed on the mental scree. (ii) Ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The metal faculties therefore cannot be expected to be attuned to absorb the details.

(iii) The powers of observation differ from person to person. What one may notice, another may not. An object or movement might emboss its image on one person''s mind whereas it might go unnoticed on the part of another.

(iv) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be human tape recorder.

(v) In regard to exact time of an incident or the time duration of an occurrence usually, people make their estimates by guess work on the spur of the moment at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again it depends on the time- sense of individuals which varies from person to person.

(vi) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on.

(vii) A witness, though wholly truthful, is liable to be overawed by the court atmosphere and the piercing cross- examination made by counsel and out of nervousness mix up facts, get confused regarding sequence of events, or fill up details from imagination on the spur of the moment. The sub-conscious mind of the witness sometimes so operates on account of the fear of looking foolish or being disbelieved though the witness is giving a truthful and honest account of the occurrence witnessed by him- perhaps it is a sort of a psychological defence mechanism activated on the spur of the moment.

(viii) Discrepancies which do not go to the root of the matter and shake the basic version of the witnesses, therefore, cannot be annexed with undue importance. More so when the all important "probabilities- factor" echoes in favour of the version narrated by the witnesses."

Therefore, minor discrepancies and contradictions, omissions cannot be attached much importance.

Bakka (Gadasi) was seized from the appellant- Baliram by means of memorandum Ex. P/4 and seizure memo Ex. P5. V.S. Suryavanshi, Sub-Inspector, Pipariya has stated that after preparing the memorandum under Section 27 of the Evidence Act at the instance of appellant- Bakka has been seized by preparing seizure memo Ex. P/5. This document has been supported by Manohar Singh (PW 2).

It is also contended that there are certain exaggeration in the statements of witnesses and at para 25 of the judgment with regard to the injuries. But just on the basis of same, the whole prosecution case cannot be discarded.

During the course of argument, learned counsel for the appellant has submitted that F.S.L report has not been received. Therefore, the appellant is entitled to the benefit of acquittal. The discrepancies which do not go to the route of the matter and do not shake the basic version of the witnesses, there cannot be given undue importance. In the case of Baskhshish Singh Vs. State of Punjab & Another, AIR 2013 SC 3403 (C), wherein it has been held that:-

"S. 300- Murder- Witness-

Embellishment and contradictions- Not destroying core of prosecution case- Do not discredit testimony of witness- Witness seeing accused while they were running away from place of incident- Statements that accused were running in suspicious circumstances, that he got scared, that co-accused disclosed that he had political rivalry with deceased, that assailants were paid for attack- Are not material embellishments that shake credibility of witness."

In the case of Babu and Another Vs. State Rep. by Inspector of Police, Chennai with Elumalai & Anr., AIR 2013 SC 1769 (C), wherein Hon''ble the Apex Court in similar circumstances, held that:-

" Section 300- Murder- Defective

investigation-Unless it creates reasonable doubt on guilt of accused- Cannot be ground to discard prosecution case- Eyewitnesses clearly stating accused hacked deceased with knife- Failure to get knives examined for finger prints- Does not make prosecution unbelievable."

Therefore, the circumstances and the evidence of eyewitnesses, prompt F.I.R, evidence of the witnesses supported by the medical evidence clearly establish the offence and I do not find any illegality or infirmity in the finding of the learned trial Court.

The learned trial Court has observed that the injury caused by the appellant on the head of Raghuraj Singh was the cause of his death. Therefore, the learned trial Court had given the benefit and converted the offence to that of Section 304 of I.P.C and sentenced the appellant for ten years rigorous imprisonment and fine of Rs.500/- and in lieu of fine, additional rigorous imprisonment for six months.

Keeping in view the above, considered the sentence part. The sentence imposed ten years and fine of Rs.500/- seems to be little higher as the matter prevailed from 1996 till now, the appellant has suffered the rigor of the trial and it would be appropriate to impose lesser sentence.

Therefore, the appeal is allowed. So far as sentence part is concerned, the sentence of 10 years (ten years) is modified to 8 years (eight years) rigorous imprisonment with fine of Rs.500/- and in lieu of fine, he has to undergo further additional sentence of six months simple imprisonment. The properties seized are valueless and, therefore, be destroyed.