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2004 DIGILAW 226 (MP)

Bhanwarlal v. State of M. P.

2004-03-09

ASHOK KUMAR TIWARI, S.L.KOCHAR

body2004
JUDGMENT Kochar, J. -- The appellants abovenamed have preferred these appeals against the judgment dated 3.7.1995 delivered in Sessions Trial No. 211/93 by the learned Second Additional Sessions Judge, Shajapur, thereby convicting the appellants for the offences punishable under sections 147, 302 in the alternative under S. 148, sectionS302/149, 323, 324/149 of the Indian Penal Code and sentencing them as noted hereunder : Bharatsingh, Saudansingh, To undergo R.I. for one month Omprakash and Bhanwarlal with fine Rs. 500/-. In default to suffer S.I. for one month u/s 148 IPC. Bharatsingh and Saudansingh To undergo R.1. for three months with fine of Rs. 500/-. In default whereof to suffer one month's S.I. each u/s 323 IPC. Shyam, Ramchandra, Mansingh and To undergo R.1. for one month Modsingh with fine Rs. 500/- u/s 147 IPC each. Mansingh, Bharatsingh, To undergo imprisonment for Saudansingh, Bhanwarlal, life with fine Rs. 1,000/- each. Omprakash, Ramchandra, In default of payment of fine to Modsingh and Shyam suffer S.1. for six months u/s 302, in the alternative u/s 302/149 IPC. All the substantive sentences have been directed to run concurrently. 2. Since the aforesaid three appeals arise out of one and the same judgment, they are being decided and disposed of by this common judgment. 3. One co-accused Shyam has also been convicted and sentenced by the trial Court in the aforesaid Sessions Trial, but his appeal is not there before this Court for consideration. 4. The prosecution case in a nutshell as unfolded before the trial Court was that on 16.4.1993 at 7.00 p.m. in village Simrol, complainant Hadmatsingh was causing his bullocks to be tied up in his courtyard. At that time his brother Antarsingh was made to fall by Saudansingh and Bharatsingh in front of his house and assaulted him by farsi and sword respectively which struck on his head. On a cry being made by the complainant and Antarsingh, their mother Devibai came out of the house and tried to rescue Antarsingh. At that juncture, accused Mansingh, Modsingh, Omprakash, Bhanwarlal, Shyamlal and Ramchandra came there together. They assaulted Antarsingh by means of stick, farsi, causing injuries at his hand and neck. Accused Saudansingh assaulted Devibai and Bharatsingh assaulted Hadmatsingh by means of a sword on which he ran away. Antarsingh was done to death by the accused persons. At that juncture, accused Mansingh, Modsingh, Omprakash, Bhanwarlal, Shyamlal and Ramchandra came there together. They assaulted Antarsingh by means of stick, farsi, causing injuries at his hand and neck. Accused Saudansingh assaulted Devibai and Bharatsingh assaulted Hadmatsingh by means of a sword on which he ran away. Antarsingh was done to death by the accused persons. It is said that before 4/5 years from the date of incident, there was a dispute over some land in which the father of Saudansingh named Hindusingh was killed and the present incident was the outcome of the previous incident. . 5. The matter was reported at the Police Station Sundersi vide Ex. P-1. Police prepared the panchnama of dead body Ex. P-3. Ex. P-4 spot-map was also drawn up. Dead body of Antarsingh was sent to the hospital for postmortem examination. PW 5 Dr. M.K. Joshi conducted the autopsy on the dead body of Antarsingh vide Ex. P-7. The accused persons were arrested vide arrest memos Ex. P-17 to P-20. Injured Hadmatsingh and Devibai were sent for their medical examination and treatment. Their injury reports are Ex. P-6 and P-5 respectively. After completing the usual formalities of investigation, the accused persons were charge-sheeted before the Court, where they pleaded not guilty to the charge and took the plea of false implication whereupon the trial commenced. The prosecution has examined six witnesses in its favour. The appellants did not examine any witness in defence. 6. We have heard Shri P.K. Saxena, learned Senior Advocate assisted by Shri Rawka and Shri A. Siddiqui Advocate for the appellants and Shri G. Desai, learned Dy. Advocate General for the State and gone through the entire record carefully. 7. Learned counsel for the appellants submitted that the prosecution has examined all interested and partisan witnesses. They have not given the specific overt act of the appellants and the name of eye-witness Banesingh does not find mention in the First Information Report. They have also submitted that the injuries sustained by the eye-witnesses have not been corroborated by the medical evidence and there is delay in lodging the First Information Report. They have also vehemently putforth the submission that though it is said that the incident had taken place in a thickly populated locality, but not a single independent witness has been examined by the prosecution. On all these counts, they prayed for acquittal of the appellants. 8. They have also vehemently putforth the submission that though it is said that the incident had taken place in a thickly populated locality, but not a single independent witness has been examined by the prosecution. On all these counts, they prayed for acquittal of the appellants. 8. On the other hand, learned counsel appearing for the State has supported the judgment of conviction and findings arrived at by the trial Court and according to him, the conviction IS based on the evidence of two injured eye-witnesses coupled with third eye-witness Banesingh and their statement have been duly corroborated by the medical evidence. 9. It is true that the incident had taken place at 7.00 p.m. in the thickly populated locality which is clear from the map Ex. P-4 proved by the Station House Officer Amarsingh Badole (PW 6). The Station House Officer recorded the statements of Shyambai, Vishnubai, Banesingh, Kamalsingh and Bharatsingh, who were the residents of the same village. Out of these witnesses, some are independent witnesses who have not been examined by the prosecution because they were hostile. It is pertinent to mention here that now-a-days it is common phenomena that the independent witnesses are not coming forward in the criminal cases to give evidence because of so many reasons, out of which two glaring reasons are (1) fear and insecurity and (2) weak and feeble and ineffective performance of the prosecution. The same cannot be improved unless and until the State will not take effective steps to have an independent establishment of scientifically well equipped investigating agency having direct nexus and control over them by the prosecuting agency. They must have good library of law books and law journals. The investigating and prosecuting agencies should not be involved in the maintenance of law and order situation. For that, the State must have a separate police establishment. The perceotage of crime in every sphere of life is steadily increasing and it is a clear threat to the growth of nation and its security. We are foreseeing serious and incurable consequences in future, if law makers will not take proper and suitable steps to check and control it. 10. The perceotage of crime in every sphere of life is steadily increasing and it is a clear threat to the growth of nation and its security. We are foreseeing serious and incurable consequences in future, if law makers will not take proper and suitable steps to check and control it. 10. The incident had taken place on 16.4.1993 at 7.00 p.m. whereas the First Information Report was lodged in the same night at 10.20 p.m. by PW 1 Hadmatsingh, the injured eye witness and brother of deceased Antarsingh at the police station which was situated 15 kms. away from the village. Therefore, the First Information Report cannot be regarded as delayed First Information Report. On the contrary, it was prompt in time. After the incident, PW 1 Hadmatsingh gave the intimation to the village-Chowkidar and thereafter, he took the dead body to the Police Station where he lodged the First Information Report (Ex. P-1), alongwith his another brother eye-witness Banesingh. Before proceeding from the village, he must have taken reasonable time in giving information to the Chowkidar and making arrangements for carrying the dead body with them. 11. It is true that the prosecution has examined PW 1 - Hadmatsingh, PW 2 - Banesingh and Devibai - (PW 3), brothers and mother of the deceased respectively. According to the prosecution, out of these three witnesses, PW 1 - Hadmatsingh and PW 3 - Devibai were the injured eye-witnesses. The incident had occurred on the road near the house of eye-witnesses and appellant Saudansingh. Therefore, their presence on the spot was natural. The law in this regard is well settled that the testimony of interested and partisan witnesses cannot be overlooked or discarded only on this ground, but, the same has to be scrutinised with more care and caution. The Supreme Court in the case of State of M.P. v. Mansingh and others [2003 (2) Vidhi Bhasvar 299] in para 7 has observed that the evidence of injured witnesses has great value and unless compelling reasons exist, their statements are not to be discarded lightly. In the same very judgment, the Supreme Court has also held that merely the name of the eye-witness is not mentioned in the First Information Report, his evidence cannot be suspected on this ground alone and the prosecution version is not rendered fragile. 12. In the same very judgment, the Supreme Court has also held that merely the name of the eye-witness is not mentioned in the First Information Report, his evidence cannot be suspected on this ground alone and the prosecution version is not rendered fragile. 12. Learned counsel for the appellants took us through the statements of all the three eye-witnesses and according to him PW 1 Hadmatsingh had deposed that when he tried to rescue his brother Antarsingh, he too was assaulted by sword by appellant Bharatsingh (absconding). But, on his medical examination by PW 5 Dr. M.K. Joshi, not a single injury was found on his person caused by sharp edged weapon like sword. Therefore, it cannot be said that he sustained injuries in the same incident. We have carefully examined this aspect of the matter and according to us, all the three eye-witnesses have deposed that when Antarsingh was being assaulted by the appellant Saudansingh and Bharatsingh, PW 1 Hadmatsingh reached to save him and he too was also assaulted. None has stated that sharp edged side of sword fell on the person of witness Hadmatsingh. Apart from this, both the lacerated wounds were on the bony parts of the body, and sometimes, incised injury on the bone may look like lacerated wound. Therefore, this is not such a discrepancy which may corrode the credibility of witness PW 1 Hadmatsingh. 13. PW 2 Banesingh has also stated that when they were returning to their house from their well, Antarsingh and PW 1 Hadmatsingh were going ahead of them and he and his wife were following them on the road in the evening between 6.00 and 6.30 p.m. When Antarsingh reached near the house of appellant Saudansingh, the appellants started assaulting Antarsingh. PW 1 Hadmatsingh and his mother Devibai (PW 3) were also assaulted by Bharatsingh and Saudansingh, respectively. 14. Devibai (PW 3), mother of the deceased deposed that in the evening between 6.00 and 6.30 p.m., she was sitting in her court-yard. PW 1 Hadmatsingh reached at his house on a bullock-cart and behind him the deceased Antarsingh was coming. Hadmatsingh (PW 1) was tying the bullocks. At that time, she heard the cries and reached on the spot. She saw that the appellants Bharatsingh and Saudansingh were assaulting Antarsingh by farsi and sword. She had requested them not to assault her son. Hadmatsingh (PW 1) was tying the bullocks. At that time, she heard the cries and reached on the spot. She saw that the appellants Bharatsingh and Saudansingh were assaulting Antarsingh by farsi and sword. She had requested them not to assault her son. After the assault being made by Saudansingh and Bharatsingh, other appellants had also reached on the spot and they too assaulted the deceased Antarsingh. She was also assaulted by Saudansingh by lathi. She sustained injuries at her hand and waist. Learned counsel has pointed out that this witness was medically examined by PW 4 Dr. P.K. Sharma on 18.4.1993 who found two contusions on her right arm. Both were simple in nature caused by hard and blunt object, within 24 hours from the time of examination. Therefore, she could not have received these injuries in the alleged incident. We are not impressed by this argument because the doctor in his statement, has not given the time of examination. Therefore, it cannot be said that medical examination of this witness was not within 24 hours from the time of the incident. 15. Medical report of this witness can only be used by its scribe for refreshing the memory as per section 159 of the Evidence Act and by the counsel for the party to contradict him. The same can also be used to corroborate the statement of this witness in the Court. Since in the Court-statement time of examination of witness Devibai has not been stated by this witness and the defence has also not asked this question to him, therefore, it cannot be said that she did not receive injuries on her person in the said incident. 16. In view of the aforesaid discussion and analysis of the eye-witnesses' account and applying the test as laid down by the Supreme Court for appreciation of evidence of related witnesses in the case of Gangadhar Behera and others v. State of Orissa [(2002) 8 Supreme Court Cases 381] we hold that they are reliable witnesses and only because they are close relations of the deceased, the prosecution version does not render brittle. 17. Now, we have to consider whether all the appellants would be guilty of the offence of murder punishable under section 302 with the help of section 149 of the Indian Penal Code in the light of the sequence of events narrated by the eye-witnesses. 17. Now, we have to consider whether all the appellants would be guilty of the offence of murder punishable under section 302 with the help of section 149 of the Indian Penal Code in the light of the sequence of events narrated by the eye-witnesses. For this purpose, we have to see the statement of star-witness PW 1 Hadmatsingh who had also lodged the First Information Report (Ex. P-1). According to this witness initially attack was made on the person of the deceased by appellants Saudansingh and Bharatsingh. Saudansingh assaulted by farsi and Bharatsingh by sword. When he reached to save his brother Antarsingh, he too was assaulted. Because of the blows dealt by these two appellants Saudansingh and Bharatsingh, the deceased fell down on the ground. Only thereafter, the other appellants named Modsingh, Mansingh, Omprakash, Bhanwarlal, Shyam and Ramchandra also reached over there having dharia, lathi and farsi and assaulted the deceased. After arrival of these appellants, there is general and omnibus evidence available against all the appellants for assaulting the deceased. PW 2 Banesingh, eye witness, reached on the spot after PW 1 Hadmatsingh and prior to him, PW 3 Devibai reached on the spot and she has also given the same version as given by PW 1 Hadmatsingh. Therefore, it is crystal clear that at the time of assault made by appellants Saudansingh and Bharatsingh by sharp-edged weapons, the other appellants were not present. Thus, at that time, there was no unlawful assembly whose common object was to commit murder of deceased Antarsingh, and for the act of Saudansingh and Bharatsingh, rest of the appellants who joined later on after falling down of the deceased on the ground, could not be held liable with the help of section 149 of the Indian Penal Code. The Supreme Court in the judgment of Chellappan and others v. State of Kerala [AIR 1975 Supreme Court 1808 - para 7], has considered this aspect. This very aspect has also been considered by the Supreme Court in the judgments passed in the cases of Nawabali v. State [ AIR 1974 SC 1228 ] and Gangadhar Behera (supra) wherein the law of application of section 149, Indian Penal Code and section 34, Indian Penal Code has been laid down. 18. This very aspect has also been considered by the Supreme Court in the judgments passed in the cases of Nawabali v. State [ AIR 1974 SC 1228 ] and Gangadhar Behera (supra) wherein the law of application of section 149, Indian Penal Code and section 34, Indian Penal Code has been laid down. 18. In the present case, since, except appellants Saudansingh and Bharatsingh, other appellants were not present at the time of causing blows by them by sharp-edged weapons and according to the evidence of Dr. M.K. Joshi (PW 5), injuries No. 1 to 4 were independently and individually sufficient to cause death and in view of the statements of the eye witnesses these injuries were caused by the appellants Saudansingh and Bharatsingh. We are of the opinion that they are liable for commission of murder of deceased Antarsingh, having shared common intention. Therefore, we hold appellants Saudansingh and Bharatsingh guilty of the offence under section 302 read with section 34, Indian Penal Code. Both these appellants were charged for the offence under section 302 and in the alternative under section 302/149, Indian Penal Code. They can be convicted under section 302/34, Indian Penal Code. See Supreme Court Judgment passed in the case of Hemlet alias Shashi and others v. State of Kerala [(2003) 10 SCC 108]. Rest of the appellants had joined after falling down of the deceased on the ground and after causing fatal injuries by appellants Saudansingh and Bharatsingh and these remaining appellants also caused grievous injuries on the person of the deceased and at that time the deceased was alive. They all came together and formed unlawful assembly having deadly weapons in their possessions and caused grievous injuries to the deceased. Therefore, all these appellants being members of unlawful assembly, would be responsible for causing grievous injuries punishable under section 326 read with section 149 Indian Penal Code. We hold them guilty accordingly. 19. In view of the discussion as aforesaid and having regard to the legal and factual position, we allow these appeals in part. The conviction of the appellants Saudansingh and Bharatsingh for the offence under S. 302/149 Indian Penal Code is altered to one under section 302, Indian Penal Code and in the alternative under section 302/34 Indian Penal Code. Their sentence of imprisonment for life is maintained. The conviction of the appellants Saudansingh and Bharatsingh for the offence under S. 302/149 Indian Penal Code is altered to one under section 302, Indian Penal Code and in the alternative under section 302/34 Indian Penal Code. Their sentence of imprisonment for life is maintained. The conviction and sentences of the appellants Saudansingh, Bharatsingh, Omprakash and Bhanwarlal under section 148 Indian Penal Code is affirmed. The conviction of the appellants Shyam, Ramchandra, Mansingh and Modsingh for the offences under section 147 Indian Penal Code is also maintained. They are acquitted of the charge under section 302, in the alternative under section 302/149 Indian Penal Code. Rest of the appellants are convicted under S. 326/149 Indian Penal Code and each of them is sentenced to rigorous imprisonment for five years with fine of Rs. 2,000/-. In default of payment of fine, each of them shall suffer additional rigorous imprisonment for two years. Out of the amount of fine, if realised or recovered, Rs. 10,000/- shall be paid as compensation to the legal heir of the deceased Antarsingh. The conviction and sentence of the appellants Bharatsingh and Saudansingh under section 323 Indian Penal Code are also maintained. All the substantive sentences are directed to run concurrently. 20. A copy of the judgment alongwith the record of the trial Court be transmitted immediately to that Court for necessary compliance. The original judgment shall be retained in the record of Cri.A.No. 531/95 and a copy each be placed in the records of Cri.A.No. 497/95 and 637/95. 21. Appellant Bharatsingh is absconding and perpetual warrant of arrest against him has been directed to be issued. Appellant Saudansingh is in jail and the remaining appellants are on bail. They are directed to remain present before the trial Court on 22.3.2004 for being committed to custody for serving out the remainder part of their sentences and their bail bonds shall stand cancelled.