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2004(2) JLJ 40
(SUPREME COURT)
Doraiswamy Raju and Arijit Pasayat, JJ.
Babulal and others v. State of M.P.
Cri. Appeals No. 532-34 of 2003; against the judgment of M.P. High
Court passed in Cri. Appeals No. 249, 252 and 256 of 1989;
Decided on 31.10.2003.
Mahila Raj Kunwar (PW 20) was previously the wife of accused Babulal (A-2). This marriage was performed while she was a minor. Since the character and reputation of Babulal was not without blemish and he was a habitual drunkard and used to gamble and had illicit relations with ladies, there was tension in the relationship between Raj Kunwar and Babulal. When the former tried to reform the latter and requested him to follow the correct path in life, she was beaten and was thrown out of his house in December, 1985. Thereafter, she started living in the house of her father. According to the customs prevalent, she was remarried on 3rd March, 1986 with Chhatar Singh (hereinafter referred to as ‘the deceased‘). This led to hostility and Babulal became inimical to deceased. He tried to arouse communal and caste feelings. On the date of occurrence, i.e., 9th March, 1986, while deceased was drawing water from his well, all the accused persons reached there. ... Accused Jagdish caught hold of him and other accused persons, with common intention to cause his death, inflicted injuries by respective weapons. Though the deceased cried for help, no one immediately came to save him. However, when his mother (PW 2) reached near him, all the accused persons left the place. The deceased, along with his mother (PW 2) and Pran Singh (PW 1), went to the Police Chowky, Magrauni and lodged first information report regarding the incident with the then station in-charge. ... Subsequently, the deceased breathed his last at the primary centre itself and could not be taken to the referral hospital. [Para 2
Held: The evidence of PWs 1, 2 and 3 was treated to be as partisan. Relationship is not a factor to wipe out the credibility of any witness‘s evidence. The Court, in a case where relatives are witnesses, has to test their version on the touchstone of acceptability and credibility. If after careful analysis the evidence is found credible, it can be relied and acted upon to form the basis of conviction. (2002) 1 SCC 353, (2000) 7 SCC 410 and 2003(2) JLJ 129 (SC) relied on. [Para 8
(2) Evidence Act, 1872--S. 32--information given by the deceased--may be treated as dying declaration. 1976 JLJ 599 (SC) relied on. [Para 6
(3) Evidence Act, 1872--S.32--dying declaration-d`reason for acceptance--great solemnity and sanctity is attached to the words of a dying person--maxim is ‘a man will not meet his maker with a lie in his mouth‘--truth sits on the lips of dying man. [Para 6
(4) Evidence Act, 1872--S. 32--FIR lodged by deceased and thumb impression put thereon--dying declaration thus recorded is not falsified even if one witness says that deceased put his signatures thereon. [Para 7
(5) Evidence Act, 1872--S. 32--deceased in fit condition of health at the time of declaration -- dying declaration rightly acted upon. [Para 8
(6) Criminal P.C., 1973--S. 374--appeal against conviction--appellate Court concurring with conclusions of trial Court--there is no need of elaborate analysis-- detailed analysis of evidence is needed when appellate Court does not concur.
While concurring with the conclusions, there need not be elaborate analysis which would be in essence a repetition of the conclusions and the reasoning. However, that does not do away with the requirement of High Court in analysing the evidence and to indicate sufficient reasons even for the concurrence. There cannot be total absence of reasons. The position is different when the appellate Court reverses the findings and the conclusions. In such a case there is an imperative requirement for detailed analysis of the evidence and reasoned conclusions. In the case at hand, the High Court has dealt with the evidence and it cannot be said that there was total absence of reasons. Though analysed in brief, yet the vital aspects have been touched. [Para 5
¼1½ naM lafgrk] 1860&/kkjk 147] 148 rFkk 302@149&ds v/khu vijk/k&i{kikrh lkf{k;ksa dk lk{;&fo‘oluh; ik;k tk, rc nks"kflf) vk/kkfjr djus ds fy, ml ij dkjZokbZ dh tk ldrh gSA efgyk jktdq¡oj ¼v lk 20½ iwoZ esa vfHk;qDr ckcwyky ¼v&2½ dh iRuh FkhA og tc çkIro; Fkh rc fookg gqvk FkkA D;kasfd ckcwyky dk pfj= rFkk [;kfr fu"dyad ugha Fks rFkk og vH;Lr ‘kjkch Fkk vkSj tqvk [ksyrk Fkk rFkk efgykvksa ls mlds v;qDr laca/k Fks] vr% jktdq¡oj vkSj ckcwyky ds laca/k rukoiw.kZ FksA tc jktdq¡oj us ckcwyky dks lq/kkjus dk ç;kl fd;k rFkk mlls thou esa lgh ekxZ ij pyus dk vuqjks/k fd;k rc og ihVh xbZ rFkk fnlacj 1985 ds mls ?kj ls fudky fn;k x;kA rRi‘pkr~ mlus vius firk ds ?kj esa jguk vkjaHk dj fn;kA çpfyr :f< ds vuqlkj 3 ekpZ 1986 dks Nrjflag ¼,rfLeu~i‘pkr~ ^e`rd* ds :i esa fufnZ"V½ ls mldk iqufoZokg dj fn;k x;kA blls ‘k=qrk mRiUu gqbZ rFkk ckcwyky dk e`rd ds çfr fo}s"k gks x;kA mlus lkaçnkf;d vkSj tkrh; Hkkouk,¡ tkx`r djus dk ç;kl fd;kA ?kVuk ds fnu vFkkZr~ 9 ekpZ 1986 dks tc e`rd vius dq, ls ty fudky jgk Fkk rc lHkh vfHk;qDr O;fDr ogk¡ igq¡p x,A---vfHk;qDr txnh‘k us mls idM+ fy;k rFkk vU; vfHk;qDr O;fDr;ksa us] mldh gR;k dkfjr djus ds lkekU; vk‘k; ls vius&vius ‘kL= ls {kfr;k¡ igq¡pkbZA ;|fi e`rd lgk;rk ds fy, fpYyk;k rFkkfi dksbZ Hkh rqjar mls cpkus ugha vk;kA rFkkfi] tc mldh ekrk ¼v lk 2½ mlds fudV igq¡ph rc lHkh vfHk;qDr O;fDr ml LFkku ls pys x,A viuh ekrk ¼v lk 2½ rFkk çk.kflag ¼v lk 1½ ds lkFk e`rd iqfyl pkSadh] exjkSuh x;k rFkk rRle; Fkkuk çHkkjh ds ikl ?kVuk ds ckjs esa çFke bfÙkyk nkf[ky dhA---ckn esa] çkFkfed dsanz esa gh e`rd us viuh vafre lk¡l yh] mls funsZf‘kr vLirky ugha ys tk;k tk ldkA ¼iSjk 2½ vfHkfu/kkZfjr % v lk 1] 2 rFkk 3 dk lk{; i{kikriw.kZ ekuk x;k FkkA fdlh lk{kh ds lk{; dk egRo lekIr fd, tkus ds fy, ukrsnkjh dksbZ dkj.k ugha gSA ,sls ekeys esa tgk¡ ukrsnkj lk{kh gksa] U;k;ky; dks mudk o`Ùkkar Lohdk;Zrk rFkk fo‘oluh;rk dh dlkSVh ij ij[kuk gksrk gSA ;fn lko/kkuhiwoZd fo‘ys"k.k ds i‘pkr~ lk{; fo‘oluh; ik;k tk, rc nks"kflf) dk vk/kkj xfBr djus ds fy, mldk voyac fy;k tk ldrk gS rFkk ml ij dkjZokbZ dh tk ldrh gSA ¼2002½ 1 ,l lh lh 353] ¼2000½ 7 ,l lh lh 410 rFkk 2003¼2½ ts ,y ts 129 ¼mPpre U;k-½ voyafcrA ¼iSjk 8½ ¼2½ lk{; vf/kfu;e] 1872&/kkjk 32&e`rd }kjk nh xbZ bfÙkyk&e`R;qdkfyd dFku ekuh tk ldrh gSA 1976 ts ,y ts 599 ¼mPpre U;k-½ voyafcrA ¼iSjk 6½ ¼3½ lk{; vf/kfu;e] 1872&/kkjk 32&e`R;qdkfyd dFku&Lohdkj fd, tkus dk dkj.k&ej.kklUu O;fDr ds ‘‘kCnksa dks vR;f/kd lR;fu"Bk rFkk ifo=rk çnku dh xbZ] gS&lw= gS] ^^O;fDr vius fo/kkrk ds ikl vius eq[k ij feF;k ckr ys dj ugha tk,xk**&ej.kklUu O;fDr ds gksBksa ij lR; gksrk gSA ¼iSjk 6½ ¼4½ lk{; vf/kfu;e] 1872&/kkjk 32&e`rd }kjk çFke bfÙkyk fjiksVZ nkf[ky dh xbZ rFkk ml ij vaxq"Bfpag yxk;k x;k&bl çdkj vfHkfyf[kr e`R;qdkfyd dFku feF;k ugha gks tkrk Hkys gh ,d lk{kh dk dFku gks fd e`rd us ml ij gLrk{kj fd, FksA ¼iSjk 7½ ¼5½ lk{; vf/kfu;e] 1872&/kkjk 32&dFku ds le; e`rd LoLFk voLFkk esa&e`R;qdkfyd dFku ij dkjZokbZ Bhd gh dh xbZA ¼iSjk 8½ ¼6½ naM çfØ;k lafgrk] 1973& &/kkjk 374&nks"kflf) ds fo#) vihy&vihy U;k;ky;] fopkj.k U;k;ky; ds fu"d"kks± ls ,der&foLr`r fo‘ys"k.k dh vko‘;drk ugha&lk{; dk C;kSjsokj fo‘ys"k.k rc vko‘;d gksrk gS tc vihy U;k;ky; ,der ugha gksA fu"d"kks± ls ,der gksus dh n‘kk esa foLr`r fo‘ys"k.k gksuk vko‘;d ugha gS] tks lkjr% fu‘d"kks± vkSj rdZ.kk dh iqujko`fÙk gksxhA rFkkfi] blls lk{; fo‘ysf"kr djus vkSj ,der gksus ds fy, Hkh i;kZIr dkj.k crkus dh mPp U;k;ky; dh vis{kk lekIr ugha gksrhA dkj.kksa dk iw.kZ vHkko ugha gks ldrkA tc vihy U;k;ky; fu‘d"kks± dks myVrk gS rc fLFkfr fHkUu gksrh gSA ,slh n‘kk esa] lk{; ds C;kSjsokj fo‘ys"k.k vkSj rdZ;qDr fu‘d"kks± dh vfuok;Z vis{kk gksrh gSA çLrqr ekeys esa] mPp U;k;ky; us lk{; ij ppkZ dh gS rFkk ;g ugha dgk tk ldrk fd dkj.kkaas dk iw.kZ vHkko FkkA ;|fi la{ksi esa fo‘ys"k.k fd;k x;k gS rFkkfi egRoiw.kZ igyqvksa ij fopkj fd;k x;k gSA ¼iSjk 5½
Pasayat, J. -- 1. Twelve persons faced trial for alleged commission of offences punishable under sections 147, 148, 302 read with section 149 of the Indian Penal Code, 1860 (in short the 'IPC'), were convicted by first Additional Sessions Judge, Shivpuri and sentenced to undergo imprisonment for life in respect of offence punishable under section 302 read with section 149 IPC and three years for the rest of the offences. They preferred three appeals before the Madhya Pradesh High Court. By the impugned judgment the appeals were dealt with together and conviction and sentence in respect of Tulua (A-1), Babulal (A-2), Mahesh (A-6), Sahab Singh (A-9), Kishan Singh (A-10), Netram (A-11) and Jagdish Prasad (A-12) were maintained. Sentences of Tulua (A-1), Babulal (A-2) and Netram (A-11) were reduced to one year and two years respectively for offences relatable to sections 147 and 148 respectively. The conviction in respect of Uttam Singh (A-3), Phool Singh (A-4), Sobran Singh (A-5), Krishna Kant (A-7) and Sarman Singh (A-8) was set aside. Tulua, Babulal and Netram (A-1, A-2 and A-11 respectively) were acquitted of the offence relatable to section 148. They were convicted of the offence punishable under section 147 IPC, while the convictions of Sahab Singh (A-9), Kishan Singh (A-10) and Jagdish Prasad (A-12) under section 148 IPC were maintained with modified sentences. The said judgment is impugned in these appeals.
2. Prosecution version in a nutshell leaving out unnecessary details is as follows :
2.1. Mahila Raj Kunwar (PW 20) was previously the wife of accused Babulal (A-2). This marriage was performed while she was a minor. Since the character and reputation of Babulal was not without blemish and he was a habitual drunkard and used to gamble and had illicit relations with ladies, there was tension in the relationship between Raj Kunwar and Babulal. When the former tried to reform the latter and requested him to follow the correct path in life, she was beaten and was thrown out of his house in December, 1985. Thereafter, she started living in the house of her father. According to the customs prevalent, she was remarried on 3rd March, 1986 with Chhatar Singh (hereinafter referred to as the deceased). This led to hostility and Babulal became inimical to deceased. He tried to arouse communal and caste feelings. On the date of occurrence, i.e., 9th March, 1986, while deceased was drawing water from his well, all the accused persons reached there. Accused Jagdish, Sarman and Kasiram were armed with a luhangi each. Accused Sabo was armed with a gun, accused Mahesh was armed with a knife and accused Pappu was armed with a hockey stick. Accused Sobran, Kishan Lal and Phoola were also each armed with luhangi. In addition, accused Netram, Tulua and Babu were holding lathis in their hands. After reaching the place where deceased was standing accused Jagdish caught hold of him and other accused persons, with common intention to cause his death, inflicted injuries by respective weapons. Though the deceased cried for help, no one immediately came to say him. However, when his mother (PW 2) reached near him, an the accused persons left the place. The deceased, along with his mother (PW 2) and Pran Singh (PW 1), went to the Police Chowky, Magrauni and lodged first information report regarding the incident with the then station in-charge. Pran Singh (PW 1) had gone to the place on hearing from Brijesh Kumar (PW 11). When report was lodged, Shiv Baksh Singh (PW 16) sent the deceased for medical examination where Dr. Ajay Kumar Pathak (PW 19) conducted medical examination. He found nearly 17 injuries on his body. There were four internal injuries also. Most of them were inflicted with sharp-edged weapons whereas some were caused by hard and blunt weapons. The deceased was referred to the district hospital, Shivpuri for better treatment. Subsequently, the deceased breathed his last at the primary centre itself and could not be taken to the ref
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