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2006 DIGILAW 1301 (MP)

Umesh v. State of M. P.

2006-11-17

A.K.SHRIVASTAVA, S.R.WAGHMARE

body2006
JUDGMENT Shrivastava, J. -- 1. The judgment passed in this appeal shall also govern disposal of connected Criminal Appeal No.1288/1998 (Deva v. State of M.P.) since all the three accused persons-appellants were jointly tried by learned trial Court and by a common impugned judgment they stand convicted under section 302/34 of the IPC. 2. Feeling aggrieved by the judgment of conviction and order of sentence dated 27.4.1998 passed by learned First Additional Sessions Judge, Rewa, in Sessions Trial No.119/96 convicting the appellants under section 302/34 of the IPC and thereby directing them to suffer rigorous imprisonment for life and fine of Rs.500/- each, in default further rigorous imprisonment for six months, this appeal has been preferred by the appellants under section 374(2) of the Criminal Procedure Code, 1973. 3. In brief the case of the prosecution is that complainant Yogeshwar alias Pappu was residing nearby Dhobia Tanki at Rewa. On 28.4.1995 at 8:30 p.m. the said Yogeshwar was going to purchase some medicine from the market and when he reached nearby India Hotel he found that Ramadhar Sharma (hereinafter referred to as the "deceased") was eating food. At that juncture present appellants and acquitted co-accused persons arrived there and after dragging the deceased outside the hotel were causing marpeet to him. The deceased was screaming and appellant Umesh was causing injury to him by gupti (a sharp-edged weapon). On seeing this incident, said Yogeshwar came back and narrated the entire episode to his companions viz., Sita, Jamir, Vishambhar etc. and all these persons again arrived at India Hotel and they found that all the accused persons were running away from the spot in a jeep. On seeing the deceased they found that he was lying unconscious and was besmeared with the blood. Yogeshwar picked up the deceased, put him in a cycle rickshaw and brought him to the hospital. However, on account of the injuries sustained by him the deceased could not survive and breathed his last in the hospital. 4. The alias of complainant Yogeshwar is Pappu and Amit. The complaint lodged a written report in City Kotwali on the basis of which an FIR was registered and a case under section 302/34 IPC was registered against the accused. 5. On lodging of the FIR the criminal law was set in motion. 4. The alias of complainant Yogeshwar is Pappu and Amit. The complaint lodged a written report in City Kotwali on the basis of which an FIR was registered and a case under section 302/34 IPC was registered against the accused. 5. On lodging of the FIR the criminal law was set in motion. The investigating agency arrived at the hospital, seized the dead body and shifted it to the mortuary; on the next date sent the body for post-mortem; I recorded the statement of the accused persons; prepared spot map and seized necessary articles; seized ordinary and blood stained earth; arrested the accused persons and on their insistence seized the gupti and lathis. 6. After completion of the investigation a charge-sheet was submitted in the competent Court which on its turn committed the case to the Court of Sessions from where it was received by the trial Court for trial. 7. The learned trial Judge on bare perusal of the charge-sheet and after going through the averments made against the appellants framed necessary charges under section 148, 302 read with section 149 of the IPC and in the alternative under section 302 of the IPC. 8. Needless to emphasize all the accused persons abjured their guilt and pleaded complete innocence. 9. In order to bring home the charges the prosecution examined as many as 9 witnesses and placed Ex.P-1 to P-17 the documents on record. 10. The defence of the accused persons is of maladroit implication and in support of their defence they examined three witnesses, Rajesh Kumar Choudhary (DW1), Ramayan Prasad Dubey (DW2) and Habibulla (DW3). 11. The learned trial Judge after close scrutiny of the evidence came to hold that the accused persons viz. Nansukha alias Bansatlal Choudhary and Vijay alias Babli did not commit any offence and eventually acquitted them of all the charges. The learned trial Judge also did not find any of the charge punishable under section 302/149 and section 148 of the IPC to be proved against the present appellants. But according to the learned trial Court since there is overwhelming evidence against the appellants in order to convict them under section 302/34 of the IPC eventually they have been convicted and have been sentenced to suffer rigorous imprisonment for life. However, the present appellants have also been acquitted under section 148 IPC. But according to the learned trial Court since there is overwhelming evidence against the appellants in order to convict them under section 302/34 of the IPC eventually they have been convicted and have been sentenced to suffer rigorous imprisonment for life. However, the present appellants have also been acquitted under section 148 IPC. In this manner the present appeal has been filed by the accused persons. 12. The contention of Shri Surendra Singh, senior advocate and Shri Umesh Shrivastva counsel for the appellants is that the sole eye-witness who has been examined by prosecution is the author of FIR Yogeshwar Prasad (PW1). But if his evidence is scrutinized closely, there are serious infirmities and contradictions and, therefore, he is not a reliable witness. It is further argued by learned counsel that the learned trial Court came to hold that implication of acquitted co-accused Nansukh and Vijay is concoction, therefore, corroboration of evidence of this witness is required. It has been further argued by learned counsel that the sole witness Yogeshwar Prasad (PW1) is interested in the prosecution because deceased happened to be a co-accused with him in one case. In support of his contention learned counsel has placed reliance on two decisions of the Supreme Court they are Lakshmi Singh v. State of Bihar [ AIR 1976 SC 2263 ], and Anil Phukan v. State of Assam [ AIR 1993 SC 1462 ]. 13. It has been further argued by the learned senior counsel that it has come in the evidence of Yogeshwar Prasad that when he arrived at the police station to lodge the report, the Police Inspector insisted him to submit the report in writing which is highly unnatural and therefore, no credence can be given to the written report accusing the appellants. Further, it has been contended that since in Ex.P-1 which is a written report, there is nothing that Sunderlal alias Babli and Deva were .causing injuries by lathis, therefore, implication of these two persons with the aid of section 34 of IPC cannot be made applicable. According to the learned counsel since there is no corroboration of the evidence of this witness, looking to the facts and circumstances this witness is not reliable and the present case is of no evidence. 14. According to the learned counsel since there is no corroboration of the evidence of this witness, looking to the facts and circumstances this witness is not reliable and the present case is of no evidence. 14. By pointing out the finding of trial Court that there was no motive to commit the offence, the contention of learned counsel is that at the most the case would not rest beyond section 304 Part II of the IPC so far as accused Umesh is concerned, as he has caused only single injury by gupti. On this point learned counsel has placed reliance on two decisions of the Supreme Court, they are Shitala Prasad alias Baba v. State of U.P. AIR 1994 SC 1643 ], and K. Ramakrishnana Unnithan v. State of Kerala [ AIR 1999 SC 1428 ]. 15. On the other hand Shri Modi, learned Deputy Advocate General not only argued in support of the impugned judgment but has further submitted that there is cogent evidence of eye-witness Yogeshwar Prasad. It has been contended by learned Deputy Advocate General that since in the FIR the name of the two acquitted persons were not there, for that reason the trial Court acquitted them and, therefore, the evidence of eyewitness Yogeshwar Prasad cannot be stressed to the extent that any corroboration is needed. By inviting our attention to the evidence of the eye-witness it has been argued that all the appellants came together and after committing the offence all of them went together in a jeep and, therefore, the only inference which can be drawn against the appellant Babli alias Sunderlal and Deva is that they shared the common intention to commit the offence along with principal accused Umesh who caused the injury by gupti. In support of his contention learned counsel has placed reliance on the latest pronouncement of the Supreme Court in Mohinder Singh v. State of Punjab [ AIR 2006 SC 1639 ]. He has also placed reliance' on State of Rajasthan v. Dhul Singh [ AIR 2004 SC 1264 ], Yunus alias Kariya etc. In support of his contention learned counsel has placed reliance on the latest pronouncement of the Supreme Court in Mohinder Singh v. State of Punjab [ AIR 2006 SC 1639 ]. He has also placed reliance' on State of Rajasthan v. Dhul Singh [ AIR 2004 SC 1264 ], Yunus alias Kariya etc. v. State of M.P. [2003(1) Vidhi Bhasvar 113= AIR 2003 SC 539 ], Mani Kumar Thapa v. State of Sikkim [ (2002)7 SCC 157 ], Atley v. State of Uttar Pradesh [AIR 1965 SC 807], Shivji Dehu Mohile v. State of Maharashtra [ AIR 1973 SC 55 ], and Thaman Kumar v. State of Union Territory of Chandigarh [ (2003)6 SCC 380 ]. 16. After having heard learned counsel for the parties we are of the considered view that both the appeals deserves to be allowed in part. 17. We do not find any merit in the contention of learned counsel that if in the police station it was insisted by the Police Inspector to the eyewitness to lodge a written report, the veracity of the case of prosecution of would be weaken and written report would become a waste paper. There Ii is no law as such and there is no bar that in case a written report is submitted the same cannot be accepted though it may be insisted by a police officer to the author of FIR to submit the report in writing. Hence, the said contention of the learned counsel we hereby reject. 18. On going through the written report Ex.P-1 on the basis of which Ex.D-4 FIR was written it is gathered that this witness Yogeshwar Prasad has specifically stated that all the accused persons were dragging the deceased and were causing marpeet to him, the deceased was screaming. It is stated that appellant Umesh caused injury by gupti to him. Thereafter, this witness came back and narrated the incident to his companions and all of them thereafter arrived at the spot and they found that the accused persons had fled from the spot. Thereafter, this witness brought the deceased in an injured condition to the hospital where after some time he died and then he came to the police station to lodge the report. Thereafter, this witness brought the deceased in an injured condition to the hospital where after some time he died and then he came to the police station to lodge the report. In his police statement Ex.D-1 which was recorded on the very next day 29.4.1995, it has been specifically stated by eye-witness Yogeshwar Prasad that the appellant Umesh caused injury by gupti on the abdominal region as a result of which the deceased fell down at the spot. Earlier to causing of injury by gupti, all the accused person dragged the deceased out side the hotel and were causing marpeet to him. This witness went back and, thereafter brought his companions at the spot and saw that all the accused persons were going together in a jeep. 19. When Yogeshwar Prasad the sole eye-witness appeared in the Court as PW 1 he stated that all the accused persons including the appellants arrived at the spot in a jeep and they alighted together. All the persons were carrying lathis in their hands and all of them rushed towards the hotel. These persons dragged the deceased outside the hotel and dealt the blows of lathis. Appellant Umesh was carrying a gupti and when the deceased was trying to rescue himself, appellant Umesh caused injury by gupti to him which landed on his abdomen. Thereafter, this witness came at the spot along with some other persons and found that all the accused persons after causing injuries went away in the jeep. True in para 20 of his statement this witness has stated that in his written report Ex.P-1 he did not say that the accused persons ran towards the hotel by carrying lathis but in his police statement under section 161 CrPC which was recorded on the very next date on 29.4.1995 this fact has been mentioned that appellant Umesh was carrying gupti and all other appellants were carrying lathis and they caused injury to the deceased. It has come that all of them came in the jeep and went back in the same jeep after causing injuries to the deceased. According to us the omission is only a minor omission. True in para 15 he has admitted that in Ex.P-1 he wrote that when he again arrived at the spot the appellants fled from the spot. It has come that all of them came in the jeep and went back in the same jeep after causing injuries to the deceased. According to us the omission is only a minor omission. True in para 15 he has admitted that in Ex.P-1 he wrote that when he again arrived at the spot the appellants fled from the spot. But if the police case diary statement Ex.D-1 and the manner in which he gave evidence as PW1 is considered in proper perspective the only inference which can be gathered is that all the accused persons came in the jeep, appellant Umesh was carrying a gupti and other accused persons were carrying lathis and all of them caused injuries to the deceased. Specific role has been assigned to Umesh for causing injury by gupti and, thereafter all the accused persons fled from the spot in the same jeep. 20. The other co-accused persons viz., Nansukh and Vijay were acquitted because their names were not named in the FIR. However, the name of present appellants are specifically mentioned. 21. We are not impressed by the submission of the learned counsel that looking to the manner of the evidence of the eye-witness a corroboration is necessarily required. In para 60, 61 and 63 this witness has stated that he was astonished when he submitted a written report and, therefore, he could not narrate the omitted part which has been pointed out in Ex.P-1 his written report and his police case diary statement Ex.D-1. No doubt he has said that the police persons told him that he may explain the incident in detail in Court but we may ignore that piece of evidence because there is otherwise unimpeachable evidence of this witness accusing the appellants. The maxim falsus in uno falsus in omnibus is not applicable in our country and, therefore, if that part of the evidence of the eye-witness in which he has accused the present appellants is clear, cogent and trustworthy, merely because he has introduced some new things in his evidence will not dilute his evidence and will not discredit his entire version. 22. The decision of Lakshmi Singh (supra), placed reliance on by the learned counsel will not be applicable because in that case the medical evidence was inconsistent with respect to assault and, therefore, it was held by the Supreme Court that corroboration of eye-witness was required. 22. The decision of Lakshmi Singh (supra), placed reliance on by the learned counsel will not be applicable because in that case the medical evidence was inconsistent with respect to assault and, therefore, it was held by the Supreme Court that corroboration of eye-witness was required. However, in the present case using of gupti by appellant Umesh is very much there and which is also corroborated by the medical evidence. The decision of Anil Phukan (supra), is also not applicable in the present case for the simple reason because in that case also the evidence of the eye-witness was not corroborated by the medical evidence and, therefore, it was held by the Supreme Court that corroboration by independent witnesses was required. In that case eye-witness also did not try to save the deceased though there was only one accused. However, in the present case there are three appellants and all of them were armed with gupti and lathis and it is possible that on account of fear that he may also sustain the injuries Yogeshwar did not intervene. Indeed, for this reason also he immediately returned back and called certain more persons. Thus, the above two decisions, cited by the learned counsel, are not at all applicable in the present case. 23. The post-mortem was conducted by Dr. S.K. Pathak (PW7) and his report is Ex.P-13 wherein he found the following injuries on the person of the deceased. (i) Incised wound which was on the left side of the intestine 1"x 1/2" intestinal deep. (ii) The upper membrane of the kidney was ruptured on account of the injury. (iii) One abrasion on fore arm nearby the arm pit of the size 1-1/2"x4". True the doctor has stated that the abrasion may come on account of shifting the deceased in a cycle rickshaw. (ii) The upper membrane of the kidney was ruptured on account of the injury. (iii) One abrasion on fore arm nearby the arm pit of the size 1-1/2"x4". True the doctor has stated that the abrasion may come on account of shifting the deceased in a cycle rickshaw. Also it is equally true that no lacerated wounds were found on the person of the deceased but it has come in the evidence of Yogeshwar (PW1) that all the appellants came in a jeep, they were armed with lathis and gupti and after committing the offence all of them went in the same jeep and, therefore, they have shared common intention to kill the deceased, even it is held that Babli alias Sunderlal and Deva did not cause any injury by lathi as no injury of lathi was found in the post-mortem report, in that regard we may profitably rely on the latest pronouncement of the Supreme Court Mohinder Singh (supra). 24. On going through the finding arrived by the trial Court in para 57 it is gathered that there was no motive to kill the deceased. Therefore, in view of the decision of the Supreme Court in K. Ramakrishanan Unnithan v. State of Kerala (supra), the appellant Umesh has committed the offence under section 304 Part II of IPC. In that decision also the injury was caused on the abdomen and in the case of Shitala Prasad alias Baba (supra), wherein a single injury was attributed which was fatal to cause death and the case was altered to section 304 Part II IPC. The decision placed reliance by the learned counsel for the State that since there is direct evidence available against the appellant therefore the motive part has lost its significance are not applicable because we are holding that the offence under section 304 Part II against appellant Umesh and section 304 Part II/34 IPC against other two appellants has been made out. 25. We are not impressed by the submission of the learned senior counsel for appellant that merely because deceased was a co-accused along-with PW1 Yogeshwar Prasad in one case, therefore, he is interested in the prosecution. If this witness has seen the incident merely because in some case he was a co-accused, would not dilute his evidence. 26. 25. We are not impressed by the submission of the learned senior counsel for appellant that merely because deceased was a co-accused along-with PW1 Yogeshwar Prasad in one case, therefore, he is interested in the prosecution. If this witness has seen the incident merely because in some case he was a co-accused, would not dilute his evidence. 26. On going through the post-mortem report which we have discussed hereinabove the present case is of single injury only on the abdominal part. There is nothing on record in order to show that there was some previous enmity between the appellants and the deceased. However, it was in the knowledge of appellant Umesh that by causing injury by gupti at the abdominal region of the decease he may die, therefore, we are of the considered view that appellant Umesh has committed offence under section 304 Part II IPC. His conviction is accordingly altered to section 304 Part II and is sentenced to suffer rigorous imprisonment of 8 years and this period he has already suffered because he is in custody since April 1995. The conviction of other appellants viz., Babli alias Sunderlal and Deva are altered from section 302/34 IPC to section 304 Part II/34 and they are also directed to suffer rigorous imprisonment for 8 years. They are on bail, their bail bonds are cancelled and they are hereby directed to serve the remaining part of their sentence. 27. This appeal and connected Criminal Appeal No. 1288/98 are hereby allowed in part.