Mana @ Ashok and others vs Budabai and others

The present appeal preferred u/S. 374(2) Cr.P.C . assails the judgment dated 29.06.1999 passed in S.T. No. 281/97 whereby the trial Court has convicted the appellant for the charge u/S. 302 of IPC and sentenced to suffer life imprisonment with fine of Rs. 500/- with default stipulation.

Learned counsel for the rival parties are heard. The record of the trial court is perused.

Brief facts giving rise to present case are that on 13.08.1997, the appellant Ramnivas at about 11:00 A.M. was creating ruckus in state of intoxication. The deceased Chetu objected to the same

and asked the appellant to return home. The deceased then accompanied the appellant and proceeded towards the river to reach the appellant to his village. When both were on the way and came close to the river, the appellant assaulted the deceased, pushed him on the ground and started hitting the deceased with stones. When the deceased raised hue and cry, the sole eye- witness PW-3 Sitaram who was working in his nearby agricultural field saw the incident. PW-3 Sitaram could not save the deceased as he had suffered a fracture and had not recovered from the same fully. The deceased died due to pelting of stones by the appellant which caused grievous injury on the head of the deceased. The appellant ran away from the spot whereafter PW-3 Sitaram on reaching the spot saw the deceased lying dead. He went to the village to inform others including Ramesh PW-4 who asked everybody to search and catch hold of the appellant. The appellant was found hiding in the maze field. The appellant was arrested by the said villagers and police was informed at about 8-10 P.M. on the same day leading to registration of Crime No. 242/1997 Ex.P-2. After completing all the formalities including making of various necessary seizures, recording of statement of witnesses, sending the seized material for chemical examination and the dead body for postmortem, the investigation was concluded and charge-sheet filed.

3.1. After committing the case to the court of sessions, the charge was framed against the appellant alleging offence punishable u/S. 302 of IPC . Appellant abjured guilt and sought trial.

In support the prosecution examined as many as six witnesses Dr. R.K. Sharma (PW-1), Ghanshyam bother of the deceased (PW-2), Sitaram (PW-3), Ramesh (PW-4), Ramjilal (PW- 5), R.N.S. Bhadoriya (PW-6) and also proved documents vide Ex.P-1 to Ex.P-13.

Dr. R.K. Sharma PW-1 conducted autopsy of the deceased on 14/8/97 and found following injuries on the body of the deceased:-

(i) Lacerated wound on the left side parietal bone 3x2x1 cm. (ii) Right side of jaw depressed fracture. (iii) Lacerated wound on the chin 3x2 cm bone deep. (iv) Abrasion on the front of neck 4x3 cm. (v) Abrasion on the right leg 2x2 cm. All injuries are antemortem and caused by hard and blunt object. 6. The appellant in his defence alleged false implication but did not produce any oral and documentary evidence in support thereof.

Learned counsel for the appellant has attacked the impugned verdict primarily on the following grounds :-

7.1 False implication of appellant arising out of past animosity between PW-4 Ramesh and the appellant stemming from election dispute.

7.2 The appellant''s implication is medically belied as postmortem report categorically opined finding of digested food in the stomach and small and large intestine empty which demolishes the prosecution story that the deceased was in the habit of not having breakfast in the morning.

7.3 Spot Map Ex.P-5 was prepared in the presence of PW-2 Ghanshyam who did not see the spot.

7.4 No blood stain was found on the clothes of the appellant.

7.5 PW-3 Sitaram, the sole eye-witness despite being physically disabled was present on the spot which is unnatural raising the assumption of the said witness having been planted.

7.6 The prosecution failed to comply with the mandatory provision u/S. 157 Cr.P.C . as intimation was sent to the concerned Magistrate.

7.7 No motive is established by the prosecution.

7.8 Baalu, Manglu, Lakkha who had come at the spot as per deposition of PW-2 Ghanshyam were not examined.

Pet contra, learned counsel for the State supported the impugned verdict and has relied upon the celebrated decision of the Apex Court in the case of Sardul Singh and Ors. Vs. State of Punjab reported in AIR 1994 SC 672 Para 6 to counter the argument of the learned counsel for the appellant regarding discrepancies between the medical and ocular evidence. It is further submitted by the State that since there is direct ocular evidence in shape of PW-3 Sitaram, the question of motive fades into insignificance. The contention of the defence that the scene of the incident was not visible from the place of presence of eye- witness PW-3 Sitaram can be of no benefit to the appellant as no suggestion in that regard was made to PW-3 Sitaram in his testimony. No doubt can be raised as regards the postmortem report which opines the incident to have taken place between 6-24 hours before the autopsy. The incident took place on 13/8/97 at 11:30 A.M. whereas the autopsy was conducted on 14/8/97 at 8:30 A.M.. The State counsel further argues while relying upon the decision of Apex Court Umesh Singh Vs. State of Jharkhand reported in AIR 2011 SC 1403 that mere non intimation u/S. 157 Cr.P.C . to the concerned Magistrate about the incident does not vitiate the investigation so long as it can be sustained by other cogent evidence. State counsel further contends that the ground raised by the defence of past animosity is of no avail since in Para 8 of the statement of PW-4 Ramesh, this witness has testified that he won the election unopposed and therefore there is no question of any contest which could have given rise to bad blood between the rival parties.

After hearing learned counsel for the rival parties, this court

is of the considered view that the verdict of conviction appears to be based on cogent evidence found proved by the court below and the findings rendered are based on appropriate marshelling of evidence on correct established principles of law.

The entire case of the prosecution hinges around the testimony of sole eye-witness PW-3 Sitaram. A bare perusal of the same reveals that PW-3 Sitaram appears to be a natural witness who was present near the scene of the crime and was within visible distance of the spot. The fact of PW-3 Sitaram having an agricultural field near the scene of crime is established and not denied by the defence. The defence has merely expressed doubt as regards presence of PW-3 Sitaram at the spot by contending that since the PW-3 Sitaram had met with an accident and suffered a fracture a month ago, it was unnatural for PW-3 to be present near the scene of the crime which was at a distance from village where PW-3 Sitaram resided. A bare scrutiny of the testimony of PW-3 Sitaram reflects that PW-3 Sitaram had some difficulty in walking but was not totally disabled. His presence near the scene of crime at his agricultural field is natural, as he had come to visit his field which is a normal daily routine of an agriculturist. Not having made any attempt to save the deceased while seeing the incident is explained by PW-3 Sitaram by testifying that he was partially disabled. PW-3 Sitaram has also explained that since there was nobody around at the spot within visible distance except the appellant and the deceased, PW-3 Sitaram did not cry out for help or inform others about the happening of the incident. PW-2 Ghanshyam has also demolished the plea of defence of false implication by contending that though there was some past politically rivalry between the appellant and PW-4 Ramesh but Ramesh had been elected unopposed as president of the Janpad Panchayat. In sum and substance, the entire testimony of PW-3 Sitaram, the sole eye-witness establishes beyond reasonable doubt that the offence was committed solely by the appellant.

Once there is clear and categorical ocular evidence in shape of testimony of PW-3 Sitaram other insignificant lacunas in the prosecution story in shape of non compliance of Section 157 Cr.P.C., the stomach of the deceased containing digested material, absence of motive, the presence of past animosity between the appellant, PW-2 Ghanshyam and deceased, fade into insignificance. The ocular evidence in shape of PW-3 Sitaram who clearly saw the incident to have taken place where the appellant was pelting stones causing grievous injury on the head of the deceased corroborated by the postmortem report opining presence of depressed fracture on the skull being the cause of death which was duly proved by Dr. R.K. Sharma PW-1, establishes the offence of murder against the appellant beyond all reasonable doubts.

From the above analysis, the prosecution succeeded in proving the offence in question beyond all reasonable doubts, therefore, interference in the impugned judgment of conviction passed by the court below is not warranted.

Consequently, the appeal has no merit and is dismissed by upholding the judgment of conviction and sentence passed by the court below.