BHERULAL Vs. STATE OF M P

JUDGEMENT

(1.) BHERULAL (A-1) stands convicted under sections 304 (Part II) of the Indian Penal Code (Code for short) and sentenced to undergo RI for 7 years with fine of Rs. 2,000/-, in default to further undergo imprisonment for 3 months more. Bhura (A-2) was convicted under section 323 of the Code and sentenced to undergo R.I. for 3 months with fine of Rs. 500/-, in default to further undergo imprisonment for 3 months. Bherulal (A-1) has been in detention between 10.9.1997 to 7.11.1997 and 5.5.1998 to 6.5.1998, thus for about two months before conviction, he was sent to jail on 6.5.1998 and his sentence was suspended on 18.6.1998 by this Court and he submitted his bail next day that is he has been in custody for about 4 months and 13 days. Fine amount has been deposited. Bhura (A-2) remained in detention between 10.8.1997 to 7.11.1997 i.e. for 2 months and 28 days. He has also deposited the fine amount.

(2.) AS per prosecution deceased used to work as a labour of Bheruial (A-1). On 5.6.1997 at about 3.00 p.m. on demand of wages Bhura (A-2) caught the deceased while Bheruial (A-1) beat him with kicks, fists and stones. Deceased fell on railway line. Nandlal (PW 3) who was working for Mohan Seth rushed to the spot and brought the deceased near the neem tree. He brought water also. Deceased died afterwards. On call of Nandlal (PW 3) his father Dubalia (PW 2) also came on spot. FIR Ex. P-9 was lodged by Dubalia (PW 2) scribed by R.S. Tiwari (PW 7) S.O. Rawati. R.S. Tiwari (PW 7) visited the spot, prepared inquest memo vide Ex. P-2 and spot map Ex. P-3 and sent the dead body for post mortem vide Ex. P-4. Later a case of marg was reported vide Ex. P-11 and G.R.P. police was intimated. Dr. B.L. Mangaria (PW 4) on post mortem on 6.6.1997 noted following injuries on the dead body :

(3.) AS already seen Dr. B.L. Mangaria (PW 4) had noted some external injuries on the dead body of deceased and rupture of spleen on internal examination. Certainly rupture of spleen and consequent internal bleeding had been the cause of death. This doctor has opined that the spleen was mildly enlarged though he has not noted down the size of such spleen. Cause of death had been excessive internal bleeding. Thus, the death was homicidal. The doctor is an independent witness. He has no axe of his own to grind against either party. Thus, his statement is of great value and the Court below has not erred on relying upon him. It is true that Mansingh a labour who had come on spot even before Nandlal (PW 3) has not been examined. Employees and other persons at railway station at the time of occurrence have also not come forward to depose. Suresh (PW 5) has claimed that deceased had fallen down the running train. He has been declared hostile by learned public prosecutor and has been cross-examined and confronted with the previous statement recorded by I.O. which he has denied. R.S. Tiwari (PW 7) the I.O. has proved correct recording of such statement. Learned trial Court has rightly disbelieved him. It is noteworthy that Mansingh had been his employee thus, nothing better could have been expected from Mansingh also. However, in the facts and circumstances of the case there has been no reason to disbelieve Nandlal (PW 3) supported by prompt FIR Ex. P-9 lodged by Dubalia (PW 2). The appellants had merely pleaded not guilty. They had not been able to show any motive why Nandlal (PW 3) or his father Dubalia PW 2) would falsely implicate them for death of their near and dear one absolving the real offender. Certainly, it had not been a case of fall from running train. There has been no evidence to support such case on record. Even the appellants have not taken such a after thought statements. Thus, finding of the Court below that Bhura (A-2) had caught the deceased while Bherulal (A-1) had beaten him with kicks and fists is well proved and founded on evidence on record.