Bhagirath vs State of Madhya Pradesh

Per Justice Anand Pathak, The appellant has preferred the present appeal being aggrieved with the judgment dated 19-08-2004 passed by the Additional Sessions Judge, Pichhore District Shivpuri in S.T.No.117/2004 whereby the appellant has been convicted for four counts charge of Section 302 of IPC and sentenced to life imprisonment with fine of Rs.4,000/-, he was also convicted for the charge of Section 307 of IPC and sentenced to 7 years imprisonment with fine of Rs.1,000/-. The Additional Sessions Judge has also provided for default sentence, if fine is not deposited.

The facts of the case in short are that on 06-04- 2004, the complainant Sohan Singh alias Sonu (PW-1) went to his field at village Naguli. One well was established in the field and the appellant Bhagirath who was uncle of the witness Sohan Singh alias Sonu (PW-1) was sitting near the well. At about 4:30 pm, when the witness Sohan Singh alias Sonu (PW-1), Sunita (PW-2), Chhotu, Laxman etc. were picking up the sticks to use as fuel and Sunita (PW2) went to take water from the well, the appellant tried to push Sunita into the well, however she was successful in escape. Thereafter, the appellant Bhagirath held the deceased Chhotu and threw him into the well, thereafter he held Laxman and threw him into the well. When the deceased Parwat; uncle of the complainant Sonu jumped into the well to save Chhotu and Laxman, appellant pelted some stones upon him. Thereafter, the complainant Sonu went to save his brother then the appellant Bhagirath also threw him into the well. Ultimately, the deceased Gyanju -mother of the complainant Sonu went to the well but she was also thrown by the appellant into the well and thereafter, the appellant pelted some stones. Resultantly, Gyanju, Chhotu, Laxman and Parwat had died due to drowning whereas the complainant Sonu (PW-1) could come out of the well only when the appellant Bhagirath left the spot. Thereafter, Sonu (PW-1) went to inform the incident to his father Ramesh (PW-4) and Kotwar Sarman (PW-6). Kotwar Sarman (PW-6), took the complainant Sonu (PW-1) to the outpost Khod of Police Station Bhonti where the FIR Ex-P/1 was lodged by the complainant Sonu. The complainant Sonu (PW-1) was sent for medico legal examination. Dr. I.A. Quereshi (PW-7) examined the Sonu and gave the report Ex-P/9. Some simple injuries were found to the complainant Sonu thereafter, police went to the spot and all the dead bodies were removed from the well and sent for postmortem.

Dr. C.C. Shrivastava (PW-10) performed the postmortem on the bodies of deceased Chhotu, Laxman, Parwat and Gyanju and gave the reports Ex-P/11 to Ex-P/14 respectively. According to him, the deceased Chhotu, Laxman and Gyanju had died due to drowning whereas the deceased Parwat had died due to head injury and thereafter drowning. He also found one injury on the head of the deceased Gyanju caused by hard and blunt object. ASI, P.S. Yadav (PW-9) went to the spot and prepared a spot map Ex -P/10. Thereafter, the SHO, Sanjay Mishra (PW-11) went to the spot, he arranged an engine to remove water of the well then five stones were found in the well which were recently thrown into the well. Such stones were recovered vide recovery memo Ex-P/7. Also, he recovered four pieces of stones from the Medh of the field held by Ashok and Pragi Prajapati and such stones were removed by the appellant Bhagirath fifteen days back of the incident. Those stones were thrown by the appellant in the field of one Ashok, however, thereafter such stones were kept back on the Medh.

After due investigation, the charge sheet was filed. Appellant abjured his guilt. He did not take any specific plea but he has stated that he was falsely implicated in the matter. No defence evidence was adduced.

The trial Court after considering the prosecution evidence, convicted and sentenced the appellant as mentioned above.

We have heard the learned counsel for the parties at length.

First of all, it is to be considered as to whether death of the deceased persons was homicidal in nature or not. In this connection, Dr. C.C. Shrivastava (PW-10) has performed the postmortem on the bodies of the deceased Chhotu, Laxman, Parwat and Gyanju and gave the reports Ex-P/11 to Ex-P/14 respectively. According to Dr. Shrivastava, the deceased Chhotu had died due to drowning and similarly the deceased Laxman had also died due to drowning. However, he opined that the deceased Parwat died due to one lacerated wound of size 10x4 cm. which was bone deep at the front of the head, due to this injury bone of the brain was found fractured and brain was visible from the broken bone. Dr. C.C. Shrivastava (PW-10) also performed the postmortem of the deceased Gyanju. He found one lacerated wound of size 4x1/2cm. which was bone deep on the body of the deceased Gyanju on the middle of her head. According to Dr. Shrivastava, that injury was antemortem and the deceased Gyanju died due to drowning. When the deceased died due to drowning then prima facie, it cannot be said that the death of the deceased was homicidal in nature unless other circumstances indicate so. It was dependent upon the evidence given by the witnesses who saw the incident and accompanying circumstances available on record.

In the present case, the complainant Sonu (PW-1) and Sunita (PW-2) were examined as eye-witnesses. They are duly supported by Mihilal (PW-3) and timely lodged FIR Ex-P/1. Position of the witness Sonu (PW-1) is of injured witness who sustained various injuries and he clarified that such injuries were caused by the appellant Bhagirath by pelting stones upon him when he was drowning into the well. Dr. I.A. Quereshi (PW-7) examined the victim Sonu (PW-1) and gave the report Ex-P/9. According to Dr. I.A. Quereshi (PW-7) four injuries were found to the victim Sonu. All the injuries were caused by blunt object and found on the front and back of head, right and left elbow. The complainant Sonu (PW-1) was referred for x-ray examination but no x-ray was produced. It is common human reaction that when danger is eminent or some object is thrown or hurled over a person then he tries to overt the danger by raising his arms and tries to obstruct the object through arms. Therefore, in all probability when Sonu (PW-1) was making efforts to save his life from drowning as well as from the stones being pelted down by the appellant Bhagirath, then he tried to save himself from those stones by covering his face (and body) by raising his arms in the direction of the stones. Therefore, his right and left elbows were got injured and those injuries were caused by blunt object. This aspect is substantiated by the medical examination as well as by Dr. I.A. Quereshi (PW-7). Therefore, it would be apparent that the complainant Sonu (PW-1) would have sustained the injuries during incident.

The learned counsel for the appellant has submitted that it was not possible for any one to throw all these persons into a well. It is possible that they would have fell down into the well because of slippery surface of the well. Thereafter, deceased Parwat and Gyanju would have gone into the well to save the deceased Chhotu and Laxman and ultimately they could not come out of the well. He submitted that the overt act as alleged against the appellant appears to be an act committed by these persons themselves. The appellant has tried to raise improbable theory on two counts; one, that if Parwat who happens to be an adult person if would have slipped into the well then being a villager and adult he must have known swimming at least would have survived himself like Sonu if the stones would not have been pelted over him, second, if the appellant Bhagirath would not have obstructed the way of Parwat by his presence and his overt act, then it would have been possible that Parwat would have tried to save the deceased Chhotu and Laxman by standing over the edge of the well and would have tried to leave them out through rope or some other modes. Here, the appellant Bhagirath not only thrown the deceased persons into the well but tried to kill them by pelting stones and insured that they could not move out.

The appellant did not take the plea of insanity before the trial Court or before the investigating officer. The appellant during investigation did not take the plea of insanity or of unsound mind and even in the trial he did not avail the remedy provided in chapter XXV of the Code of Criminal Procedure, 1973 wherein Provisions as to Accused Person of Unsound mind have been provided. Therefore, it cannot be assumed that the appellant had done this in the fit of unsoundness or insanity or because he was a lunatic. Hence, it is apparent that he was not insane. It is also clear from the evidence of the complainant Sonu (PW-1) that the appellant Bhagirath was uncle of the victim Sonu and there was no enmity between the persons. Suggestion was given to the complainant Sonu (PW-1), Sunita (PW-2) and Ramesh (PW-4) that since Ramesh tried to usurp the property of the appellant Bhagirath, therefore, there was enmity between them and hence the appellant was falsely implicated in the matter. But all the three witnesses did not accept such suggestion. It is not claimed by the appellant that the well was of his ownership and he prohibited the witness Sunita (PW-2) to take water from that well. When initially Sunita (PW-2) went to fetch some water then she could fall down into the well because of slippery surface of the well and after that fall, the children Chhotu and Laxman could not fall down into the well due to the incident. It is not established by the appellant that there was any stone etc. available in between the water and opening of well so that the deceased Parwat or Gyanju would have sustained injuries on head. If the injuries caused on head to the deceased Parwat and Gyanju was due to their falling down into the well and their head struck on the wall of the well then other spinal injuries would have been caused to these persons but the Dr. C.C. Shrivastava (PW-10) did not find any spinal injuries to them. If such was the position into the well then the deceased Chhotu and Laxman should have also sustained injuries on their head and other part of the body.

The theory as advanced by learned counsel for the appellant did not garner the evidence and get support from the witnesses. The probability of getting hurt of children Chhotu and Laxman would have been higher if they would have fallen because of slippery surface or their negligence because in the state of negligence if a person falls into a well specially a child then probability of getting hurt through hitting the wall of the well is higher. Parwat was an adult villager and same was the case with Gyanju, an adult female villager thus if they would have jumped into the well for saving the children then they would have taken much precaution in saving the children. Therefore, on this count also the arguments of counsel for the appellant does not evoke confidence and reliability. The injury caused to the deceased Parwat substantially indicates that the appellant has made all attempts through pelting stones to kill Parwat and did not allow him to save other drowned victims. Similarly, Dr. C.C. Shrivastava (PW-10) opined the cause of death of Parwat due to injuries and drowning, therefore, the injury of deceased Gyanju and injured Sonu (PW-1) can be safely assumed to be caused by the appellant Bhagirath by pelting stones over them. Seizure of stones which were pelted in the well also indicates that those stones were thrown by the appellant Bhagirath as they were found to be recently thrown stones because of their non-stickiness whereas the already existing old stones in the well would have contained algae formation over them. Therefore, on this count also, the theory of pelting stones by the appellant Bhagirath is established.

Since there was no enmity between the witnesses Sonu (PW-1), Sunita (PW-2), Ramesh (PW-4) with the appellant Bhagirath thus, it cannot be said that Sonu had falsely implicated the appellant. Sonu (PW-1) has stated that when he was thrown into the well he was not minor child, he tried to come out of the well but the appellant pelted stones upon the head and Dr. I.A. Quereshi (PW-7) found four injuries to the victim Sonu out of them two injuries were on the head and two injuries were on the elbow. It is also apparent from the postmortem report Ex-P/13 proved by Dr. C.C. Shrivastava (PW-10) that the injuries caused on the head of the deceased Parwat were grave; bones were found fracture and brain was visible from the outside and according to Dr. C.C. Shrivastava deceased Parwat had died due to injuries and drowning. It is evident from the statement of witnesses Sonu (PW-1) and Sunita (PW-2) that Parwat was an adult person who jumped into the well to save Chhotu and Laxman then he would have assessed the depth of the well and he should not have jumped in such a manner so that his head could have struck on the wall of the well and therefore, looking to the story of Sonu (PW-1) and Sunita (PW-2) there was no possibility for the deceased Parwat to sustain any head injury of such nature so that his bones of the head were found broken. In such circumstances, the evidence given by Sonu (PW-1) and Sunita (PW-2) is acceptable that the appellant Bhagirath pelted the stones upon the deceased Parwat and ultimately Parwat could not save others and himself due to injuries and it is possible that he become unconscious and ultimately drowned.

When the overt act of the appellant as told by Sonu (PW-1) and Sunita (PW-2) is accepted for the deceased Parwat then there is no reason to disbelieve these witnesses relating to 8 Cr.A.No.719/2004 death of the deceased Chhotu and Laxman.

Similarly, learned counsel for the appellant has submitted that it is alleged by the witness -Sonu (PW-1) that he was thrown into the well, then was not able to see that his mother Gyanju was thrown by the appellant Bhagirath into the well. However, if the person who was swimming in well can see from the aperture of well about the overt act of the appellant Bhagirath, therefore, it was possible for him to see that his mother was thrown by the appellant into the well. Circumstances speak for themselves. The injured witness Sonu (PW-1) was fighting for his existence and therefore, his eyes must be over the upper surface of the well to come out from it and therefore, his whole existential attention would have been over the surface of the well and therefore, he could see the overt act of the appellant Bhagirath who thrown his mother Gyanju into the well. Even otherwise from the overt of course of event and from the testimony of other witnesses, it is established that Gyanju was also thrown into the well by the appellant.

If the overt act of the appellant Bhagirath is considered as told by Sonu (PW-1), Sunita (PW-2) and Mihilal (PW-3) then these witnesses have informed the incident immediately to Ramesh (PW-4), thereafter, intimation was given to Kotwar Sarman (PW-6) who took the witness Sonu (PW-1) to the Police Station where the FIR Ex-P/1 was lodged. The FIR was lodged within two hours whereas the outpost was 6 kms. away from the spot. When the appellant would have left the spot, the complainant Sonu would out come of the well and gone to the house to inform about the incident to his father. Thereafter, he would have contacted to Kotwar Sarman (PW-6) and went to the outpost Khod and therefore, two hours could be consumed in doing all such activities. Hence, the FIR was lodged within the reasonable time and corroboration can be obtained from the FIR. The evidence of Sonu (PW-1) and Sunita (PW-2) is duly corroborated by the medical evidence as proved by the Dr. I.A. Quereshi (PW-7) and Dr. C.C. Shrivastava (PW-10). Hence, there is no reason to disbelieve Sonu (PW-1) or Sunita (PW-2) about the incident. The trial Court has rightly believed the evidence of these witnesses.

If the overt act of the appellant Bhagirath is considered then throwing of child into a well is an act of eminent danger. The appellant who knew that by throwing such minor child into a well the child could die. Similarly, when Parwat jumped into the well to save the children then the appellant pelted the stones upon him so that he could not save the deceased Chhotu and Laxman which clearly indicates that the appellant had intended to kill Chhotu and Laxman. Similarly, he killed the deceased Parwat by causing fracture on his head and turning him unconscious and therefore, the person who jumped into the well to save two children has died due to injury on his head and drowning. Therefore, the overt act of the appellant Bhagirath clearly indicates that he intended to kill the deceased Parwat so that Parwat could not save other deceased persons like Chhotu and Laxman. When Gyanju went near to the well then the appellant threw her also into the well which clearly indicates that he intended to kill the deceased Gyanju also thereafter again he thrown stones into the well. The complainant Sonu (PW-1) was also thrown into the well but he could save himself and came out of the well when the appellant left the spot. In such circumstances, it is established that the appellant killed the deceased Chhotu, Laxman, Parwat and Gyanju with intention, therefore, the trial Court has rightly convicted the appellant Bhagirath for four counts charge of Section 302 of IPC.

The injured witness Sonu (PW-1) and Sunita (PW-2) are eye-witnesses and have supported the story of prosecution. Their testimony remained unshaken and no contradiction surfaced in respect of their testimony vis-a-vis the incident occurred.

It is apparent from the evidence of Sonu (PW-1) and Sunita (PW-2) that the appellant tried to throw the witness Sunita (PW-2) into the well but she slipped from the hands of appellant and she could save herself but the appellant threw the witness Sonu into the well and also pelted stones so that he could not come out of the well which clearly indicates that the appellant had intended to kill the witness Sonu and therefore, his overt act is falling under Section 307 of IPC relating to the victim Sonu (PW-1). The trial Court has rightly convicted the appellant for the charge of Section 307 of IPC.

So far as the sentence is concerned, the trial Court did not give any death sentence to the appellant though he caused four death and committed the offence of Section 307 of IPC with the complainant Sonu. Hence, no further dilution can be done on the sentence. The trial Court has passed the reasonable order relating to sentence.

On the basis of aforesaid discussion, the appeal filed by the appellant Bhagirath cannot be accepted. There is no reason to interfere in the judgment of conviction and sentence passed by the trial Court. Consequently, the appeal filed by the appellant -Bhagirath is hereby dismissed.

Copy of the this judgment be also sent to the trial Court for information.