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2004 DIGILAW 781 (MP)

Ramniwas v. State of M. P.

2004-09-22

A.K.GOHIL, S.S.JHA

body2004
ORDER Jha, J. -- 1. The judgment of this appeal shall also govern the judgment in Cr.A. 399/96, as both the appeals arise out of same judgment of sentence and conviction. 2. This appeal is filed by the appellants against their conviction for an offence under section 302, 302/34, 307 and 307/34 IPC and under section 4/5 of Explosive Substances Act by the Court of S.I. Shah, III Additional Sessions Judge, Morena. 3. Appellant Harishankar is convicted for an offence under section 302, IPC read with section 4 of Explosive Substances Act, 1908; Suresh is convicted for an offence under section 302/34, 307, IPC and section 4 of Explosive Substances Act; Ramniwas is convicted for an offence under section 302/34, IPC. Appellant Ramniwas filed Cr.A. 352/96, whereas other appeal Cr.A. 399/96 has been filed by Harishankar and Suresh. 4. According to prosecution, deceased Vinod Kumar was resident of Tamardhari Ganj, Morena. Rajendra, brother of the deceased Vinod, had sold his shop on 23.9.1986 to appellant Suresh, however balance of consideration Rs. 6,000/- was due against Suresh. In the afternoon of the date of incident, Rajendra had demanded balance amount of consideration from Suresh. There were heated exchange of words between Rajendra and Suresh. On account of this enmity all the three accused went to the house of Rajendra at 21.00 hours on 23.11.1986. Deceased Vinod, his brother Rakesh, Pradeep, Anil and their mother Gyandevi alongwith Naresh Jain, Rajendra Tiwari were watching television at their residence. Suresh shouted and called Rajesh alias Lalla, then deceased Vinod came out of the house followed by Rakesh, Pradeep and Anil. Vinod informed Suresh that Rajendra is not at home, then Suresh started abusing Rajendra. Vinod asked him not to abuse Rajendra. Suresh was accompanied by Harishankar and Ramniwas. Suresh was carrying a bag in his hand. When Vinod informed the appellants that Rajendra is not at home, Suresh and Ramniwas said that now let's see Vinod, as he is the cause for the dispute. Harishankar took out two hand-grenades from the bag of Suresh and threw one grenade on the body of Vinod. The bomb burst on the chest and neck of Vinod. Vinod fell on the ground and died. Harishankar tried to escape from the spot and was chased by Rakesh, then Suresh threw the hand-grenade at Rakesh. Rakesh suffered injuries. Harishankar took out two hand-grenades from the bag of Suresh and threw one grenade on the body of Vinod. The bomb burst on the chest and neck of Vinod. Vinod fell on the ground and died. Harishankar tried to escape from the spot and was chased by Rakesh, then Suresh threw the hand-grenade at Rakesh. Rakesh suffered injuries. All the accused ran towards the lane by the side of the house. Rakesh chased them. At that time, hand-grenade in the hand of Harishankar exploded and all the accused escaped. Rakesh found that Vinod is dead. 5. FIR Ex. P-3 was lodged on 23.11.1986 at about 9.45 p.m. at Police Station Kotwali Morena. The said Kotwali is half kilometer from the place of incident. FIR was written by the Station In charge of the Police Station Bhuresingh Kushwah (PW 12) and after recording the information, police party went to the spot and performed the formalities and sent the dead body for post mortem. During investigation spot map was prepared on 24.11.1986. Blood was seized after scraping the portion of the wall and the pieces of clothes, stones, skin and the flash of the deceased was seized. Post mortem was performed by Dr. Pippal (PW 1). He opined that death is of homicidal in nature. Rakesh was medically examined by Dr. Parashar (PW 11), who found that Rakesh is having explosive injuries. Harishankar was also medically examined by Dr. Parashar, and he found that due to explosion his right palm near the wrist has suffered injuries from the explosion. Trial Court framed the charges and recorded evidence. Appellant Harishankar took the defence that his right hand was amputed 12 years prior to the incident. On the date of incident he was going towards the station and at that time he suffered hand grenade injury which resulted into fresh injury on his hand. Police has arrested him on suspicion. Appellant Suresh has taken a plea that other accused were not known to him prior to the incident. He paid entire amount to Rajendra. He was not in the town of Morena on the date of incident and on the date of incident he has gone to his father-in-Law's house at village Eno District Bhind. He was arrested one month after the incident and his plea is that he has been falsely implicated. He paid entire amount to Rajendra. He was not in the town of Morena on the date of incident and on the date of incident he has gone to his father-in-Law's house at village Eno District Bhind. He was arrested one month after the incident and his plea is that he has been falsely implicated. Ramniwas has taken a plea that on account of previous enmity he has been falsely implicated. Trial Court after recording evidence has convicted the appellants. 6. Counsel for the appellants submitted that the judgment and sentence is contrary to the evidence on record and deserves to be set aside. On the other hand counsel for the State supported the judgment. 7. PW 2 Rakesh Kumar, who is the eye witness and brother of the deceased, has deposed that on the date of incident at about 21.00 hours, he alongwith his brothers and others was watching television at his residence. All the three appellants reached his house and were calling Rajendra. On hearing the call he accompanied Vinod outside the house. Vinod informed the appellants that their brother Rajendra alias Lalla is not at home and thereafter Suresh started talking in abusive language. When he was told not to use abusive language by Vinod, then he uttered that Vinod is real culprit and cause of the dispute and lets' settle score with him. Thereafter Harishankar took out the hand grenade from the bag of Suresh and threw it at Vinod. The said bomb burst on the body of deceased. This witness was subjected to long cross-examination. Cross-examination runs in almost 20 pages. The examination-in-chief was recorded on 14.3.1990, three and half years after the incident and thereafter he was cross-examined on 15.3.1990 and 16.3.1990. This witness was examined and cross-examined continuously for a period of three days. 8. Counsel for the appellants submitted that Rakesh is an interested witness and in order to settle the previous enmity he has falsely implicated the' appellants. 9. Counsel for the appellants submitted that it is admitted that deceased was having a criminal record and was wanted by the police and there is every possibility that somebody else has committed the crime and appellants have been falsely implicated. Counsel for the appellants submitted that there was no source of light. Street light on the spot is not proved by the spot map. Counsel for the appellants submitted that there was no source of light. Street light on the spot is not proved by the spot map. In the absence of proof of source of light it was not possible for Rakesh to identify the appellants. 10. In para 5 of the cross-examination, Rakesh Kumar (PW 2) has deposed that there was a light on the spot from the street light. He denied that the bulb of street light was off. He further denied that there was no source of light on the door of his house. There was light from his house at his door. He has further deposed that there is a public street in front of his house. In this para he has further deposed that all the accused were known to him prior to the date of incident. Regarding Harishankar he has deposed that Harishankar has visited his house 2-3 times. As regards the allegations against Vinod he has denied that deceased Vinod was history-sheeter. He has further deposed that Vinod used to drive tempo. On account of challan of tempo police has visited his house. Later Vinod stopped plying tempo and police had stopped coming to his house. This witness was confronted with his statement Ex. D-1 before the police. He has stated that it is not mentioned in Ex. D-1 that at the time of incident source of light was from electric poll and he identified accused in the light of electric poll. He has stated that since police has not asked this question to him therefore this fact is not mentioned. He has further stated that he does not remember whether he has informed the police officer regarding the source of light from the electric poll. 11. Contention of the counsel for the appellants that the evidence of this witness is not reliable cannot be accepted. Counsel for the appellants submitted that this witness has stated that the dispute with Rajendra in the afternoon was known to him as he was informed by Rajendra, but Rajendra has deposed that after the hot talks in the afternoon with the appellants he went to Gwalior and returned to Morena in the night after the incident. Rakesh has deposed that for his treatment police has taken him to the Hospital and he was given the first-aid at 23.45 hours. Thereafter police has left him at his home. Rakesh has deposed that for his treatment police has taken him to the Hospital and he was given the first-aid at 23.45 hours. Thereafter police has left him at his home. He denied that Harishankar accompanied him to the hospital. He learnt in the night that police has arrested Harishankar and was sent to the hospital. 12. Another witness Anil Kumar (PW 3) has also corroborated the deposition of Rakesh. PW 3 Anil Kumar was also subjected to long and gruelling cross-examination but he was firm on his deposition regarding the act of appellants Harishankar, Suresh and Ramniwas. PW 4 Naresh Jain was declared hostile and has not supported the case of prosecution. PW 5 Rajendra has deposed about the previous incident in the afternoon between him and Suresh. PW 7 Gyandevi, the mother of the deceased, has corroborated the deposition of the other eye witnesses. Other eye witnesses have also corroborated the incident. Trial Court has considered the evidence in the case. 13. First contention of the counsel for the appellant is that the appellants have been falsely implicated. Specific role of Harishankar of throwing hand grenade at deceased Vinod is proved. Similarly, Suresh has also thrown hand grenade at Rakesh. Act of Suresh and Harishankar is clear and specific. 14. Next contention of the counsel for the appellants that there is no overt act on the part of Ramniwas. He has not thrown hand grenade. Only allegation against him is about exhortation. 15. Though, It is not alleged that Ramniwas has thrown hand grenade at the deceased, but he accompanied Suresh and Harishankar to the residence of deceased Vinod. All the eye witnesses had categorically deposed that Suresh had said that Vinod is. the cause of dispute and Harishankar had thrown a hand grenade at Vinod and thereafter when Rakesh chased Suresh, Suresh took out the hand grenade from his bag and threw the same at Rakesh, which caused injury on his right thigh and armpit. All the three accused ran away from the spot. As regards contention that police statement of Rakesh Kumar (PW 2) is not corroborated by the witness, it may be mentioned that his evidence was recorded after a long time and in a long cross-examination for about 10-20 pages, there is likelihood of some answers which may be inconsistent but it will have no effect on the deposition. As regards contention that police statement of Rakesh Kumar (PW 2) is not corroborated by the witness, it may be mentioned that his evidence was recorded after a long time and in a long cross-examination for about 10-20 pages, there is likelihood of some answers which may be inconsistent but it will have no effect on the deposition. Rajendra has also supported the cause of enmity. The fact that Harishankar was carrying hand-grenade is proved from the fact that in the explosion, Harishankar lost his right palm. Though defence was taken by Harishankar that he has suffered the injury and he has lost his palm 10 years prior to the date of incident, but this fact is not established. The exhortation by Ramniwas is also proved. As regards their intention, it is apparent that the accused were carrying hand grenades, which were kept in a bag carried by Suresh. Not only Harishankar and Suresh had thrown the hand grenades on deceased as well as Rakesh but Ramniwas accompanied them and exhorted for finishing Vinod. The injury caused to Harishankar establishes that Harishankar was present on the spot. It is also established that the accused were carrying hand grenades with them with an intention to take revenge. Appellant Harishankar has thrown hand grenade on the body of Vinod which resulted into his death. Similarly Suresh has thrown hand grenade on the body of Rakesh and injured him. Injury to Rakesh has been corroborated by medical evidence of PW 1 Dr. Pippal. PW 1 Dr. Pippal has performed the postmortem and found the injuries on the body of the deceased and opined that cause of death is on account of explosive. He has found following injuries in the post mortem : 1. Blast injury at right of face extending from right zygomatic region upto sternal angle on chest and posteriorly the border of trapezius muscle and tip of shoulder along the second rib - ecchymoses present. Muscle and other tissues exposed the mendable fractured and displaced on right side. Both sides axillas loosened. The wound communicating with right thoracic cavity. The upper lob of right lung lacerated and ecchymosed. Second and first rib of right side fractured. The sternal angle also displaced. The wound is directed at three places, face disfigured at right side. Blackening also present at skin at places and at wound. 2. Abrasion on left thumb 0.3 cm. The wound communicating with right thoracic cavity. The upper lob of right lung lacerated and ecchymosed. Second and first rib of right side fractured. The sternal angle also displaced. The wound is directed at three places, face disfigured at right side. Blackening also present at skin at places and at wound. 2. Abrasion on left thumb 0.3 cm. in diameter at the junction of nail and skin, dry clotted blood present. 3. Abrasion on right thener eminence triangular 1.5 x 1 cm. reddish in colour. 4. Lacerated wound at root of index finger triangular 1 x .5 cm. reddish in colour. 16. Senior Scientific Officer Girwar Singh Sahu (PW 10) has also gone to the spot and he has found that wall contained the pieces of flash and Vinod died due to explosive. Girwar Singh Sahu was Senior Scientific Officer in the Regional Medicolegal Laboratory. 17. Contention of the counsel for the appellants is that there was no common intention on the part of Ramniwas. Prosecution has not proved that Ramniwas had knowledge that Suresh was carrying hand-grenades in his bag and Suresh had no knowledge that Harishankar will use this hand-grenade against the deceased. He submitted that throwing of hand-grenade by Harishankar at Vinod is his individual act, whereas common intention cannot be gathered from this fact. 18. This contention cannot be accepted. It may be seen that all the three accused reached the spot together. Both Ramniwas and Suresh uttered that real cause of dispute is Vinod and he should be finished. Hand-grenade was taken out from the bag carried by Suresh and thrown at deceased Vinod. Suresh had also thrown the hand-grenade at injured Rakesh. Ramniwas had not only exhorted but ran away with other appellants. 19. In the said facts of the case, common intention of all the appellants is proved. It is also established that appellants have committed the murder of deceased Vinod. They have rightly been convicted. As regards their conviction under the Explosive Substances Act, since prosecution has failed to prove the proper sanction to prosecute them under section 8 of the Explosive Substances Act, the appellants are acquitted of charges for an offence under sections 4 and 5 of Explosive Substances Act and they are sentenced for an offence under sections 302, 302/34, 307 and 307/34 IPC and their conviction and sentence is affirmed. Appellant Ramniwas is on bail. Appellant Ramniwas is on bail. His bail bonds and surety are cancelled and he is directed to surrender before the Chief Judicial Magistrate Morena within one month and on his failure to surrender, Chief Judicial Magistrate, Morena shall issue warrant of arrest against him for undergoing the sentence. 20. In the result both the appeals fail and are dismissed.