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2002(2) JLJ 416
Rajeev Gupta and S.L. Jain, JJ.
Nandaua alias Munda v. State of M.P.
Cr. Appeal No. 1090 of 1990; against judgment of Addl. Sessions
Judge, Dindori, Distt. Mandla passed in Sessions Trial No. 21 of
1990; Decided on 10.5.2002.
(2) Evidence Act, 1872 -- Ss. 60 and 45 -- eye-witness‘s testimony duly corroborated with medical evidence -- cannot be ignored.
Deceased Santu was the brother of complainant Kallu (PW 1), Phulabai (PW 9) is the mother of Kallu, Ritabai (PW 2) is the wife of Kallu and Lulibai (PW 18) is sister of Kallu. Lulibai was married to Munna (PW 21). A few days before the date of incident, Lulibai leaving her matrimonial home, came to village Subkhar to live with her brother. Munna, with a view to take his wife back, came to village Subkhar and requested Kallu to send Lulibai with him. Kallu told Munna that he will send his sister after 3-4 days. Munna insisted that his wife should be sent with him. Therefore, Munna, in order topursuade Kallu to send his wife with him, stayed at the place of Nandaua alias Munda, the appellant.....During the course of conversation there was some scuffle between appellant Nandaua and Kallu. Thereupon, Kallu‘s wife Rita and his sister Lulibai reached the spot and were bringing Munna back to his house. In the meanwhile, accused came armed with an iron rod. He manhandled Santu and twisted his neck forcefully. When Phulabai, the mother of deceased tried to intervene, the accused assaulted her with the iron rod causing severe injuries to her. [Para 3
Held : The occular version has been conoborated by medical evidence also. Dr. R.M. Mishra (PW 19) who conducted post-mortem examination on the dead body of deceased Santu had found an antemortem contusion over upper lip around its whole length and also found fracture and dislocation of cervical vertabrea which was possibly due to forceful twisting of neck. According to this witness the injury was sufficient in the ordinary course of nature to cause death. Ex. P-7 is the report of post-mortem examination. [Para 12
Even if Kallu does not state that the neck was twisted, there is no reason to disbelieve other witnesses namely, Ritabai (PW 2), Phulabai (PW 9) and Lulibai (PW 18). Their evidence is conoborated by medical evidence. According to Dr. Mishra, the dislocation and fracture of survical vertabrae is not possible unless the neck is forcibly twisted. It is true that Manorath (PW 4) and Parmu (PW 5) have not supported the prosecution case but this alone is no reason to disbelieve the evidence of other eye witnesses, who have supported the prosecution. The evidence of Kallu (PW 1), Ritu (PW 2), Phulabai (PW 9) and Lulibai (PW 18) inspires confidence. [Para 13
(3) Evidence Act, 1872 -- S. 60 -- eye-witnesses in relation with deceased -- their evidence cannot be ignored outright -- it needs scrutiny with extra care.
The relationship of witnesses with the deceased is no ground for not acting upon their testimony as it is otherwise reliable in the sense that they were competent witnesses who could be expected to be near about the place of occurrence and could have seen what happened there at the scene of occurrence. In the case of related and interested witnesses, all that is necessary is to scrutinize the evidence with extra care. [Para 14
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1. Nandaua alias Munda, the appellant was tried by Additional Sessions Judge, Dindori, District Mandla, on charges under section 302 of the IPC for committing the murder of Santu and under section 307 of the IPC for attempting to commit murder of Phulabai, the mother of deceased Santu in Sessions trial No. 21 of 1990.
2. Vide judgment and order dated 8.10.1990, the trial Court found the appellant guilty for the offences charged and sentenced him to imprisonment for life for the offence punishable under section 302 of the IPC and RI for five years for the offence punishable under section 307 of the IPC. Both the sentences were directed to run concurrently.
3. The prosecution case as unfolded during trial is that deceased Santu was the brother of complainant Kallu (PW 1), Phulabai (PW 9) is the mother of Kallu, Ritabai (PW 2) is the wife of Kallu and Lulibai (PW 18) is sister of Kallu. Lulibai was married to Munna (PW 21). A few days before the date of incident, Lulibai leaving her matrimonial home came to village Subkhar to live with her brother. Munna, with a view to take his wife back came to village Subkhar and requested Kallu to send Lulibai with him. Kallu told Munna that he will send his sister after 3-4 days. Munna insisted that his wife should be sent with him. Therefore, Munna in order to pursuade Kallu to send his wife with him stayed at the place of Nandaua alias Munda, the appellant. Munna requested certain persons of the locality to advise Kallu to send Lulibai with him. A Panchayat was held in the morning, but Kallu did not participate in this meeting. In the evening some elderly persons of the village assembled again at the house of Baburam (PW 3). In this meeting, Kallu also participated. During the course of conversation there was some scuffle between appellant Nandaua and Kallu. Thereupon, Kallu's wife Rita and his sister Lulibai reached the spot and were bringing Munna back to his house. In the meanwhile, accused came armed with an iron rod. He manhandled Santu and twisted his neck forcefully. When Phulabai, the mother of deceased tried to intervene, the accused assaulted her with the iron rod causing severe injuries to her. Injured Phulabai and Santu were taken to P.S. Dindori where Kallu lodged the FIR Ex. P-1. An offence punishable under section 307 of the IPC was registered. .
4. At Dindori hospital Santu was declared 'brought dead'. Infoffi1ation to that effect was sent to the S.O., P.S. Dindori by Dr. B.K. Jharia (PW 22). Inquest Panchnama was prepared. Post mortem examination of the dead body of deceased Santu was conducted by Dr. R.M. Mishra (PW 19). Dr. Mishra found an ante mortem contusion over upper lip around its whole length and the fracture and dislocation of cervical vertabrae of the deceased. In the opinion of the doctor it was due to forcible twisting of the neck. Dr. Mishra opined that the death was caused due to syncope as a result of fracture and dislocation of cervical vertabrae. Ex. P-13 is the Post Mortem Report by Dr. R.M. Mishra.
5. Phulabai was examined by Dr. B.K. Jharia (P.W. 22). At the time of her medical examination, she was in a semi conscious state. Dr. Jharia found the following injuries on her body. :
(1) One lacerated wound 1/2" x 1/4" x 1/4" on the left eye.
(2) Contusion 2" x 2" on the left cheek; and
(3) One abrasion over right knee.
Dr. Jharia opined that the injuries caused to Phulabai were sufficient in the ordinary course of nature to cause death. Ex. P. - 11 is the report given by Dr. Jharia.
6. During investigation at the instance of accused an iron rod (Article A) was seized. One Dhoti and one Kurta which the accused wore at the time of incident were also seized vide Ex. P-4. A blouse, which Phulabai wore at the time of incident was also seized vide Ex. P-7. The above referred Dhoti, Kurta, blouse and iron rod were sent for chemical examination; As per report of Officer-in-charge, FSL, Mandla (Ex. P-10) blood was found on all the above articles.
7. After investigat
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