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2008 DIGILAW 200 (MP)

NAR SINGH v. STATE OF M. P.

2008-02-05

MANJUSHA P.NAMJOSHI, S.K.KULSHRESTHA

body2008
Judgment S.K.Kulshrestha, J. ( 1. ) AGGRIEVED by the judgment dated 18/02/1999 of the learned 1st Additional Sessions Judge, Barwani, in Sessions Trial No. 79/1988, the appellants have filed this appeal against their conviction and sentence. The appellants were indicted for offences under Sections 147 and 302/149 of the Indian Penal Code. It was stated by the prosecution that prompted by a past enmity relating to the land, they committed murder of Makdia. At about 08.00 p.m., on that date, Makdia had raised an alarm and when his wife Velibai (PW 2) rushed to the place, she found that in the Nallah, Narsingh, Gulsingh, Sursiya, Khuma and Bhaila were conjointly assaulting her husband deceased Makdia. He was felled down and his Dhoti, which he was carrying on his shoulder, was snatched and after making a ligature, accused Narsingh and Gulsingh strangulated him while Khuma, Bhaila and Sursingh kept him pinned by holding his hands and legs. After a while, Makdia died. While Velibai (PW 2) tried to intervene, she was also threatened by the accused, but hearing her alarm, her sister-in-law, Navadibai and brother-in-law approached. Seeing these persons approaching the place of the incident, the accused ran away. This incident was also witnessed by Navadibai (PW 3) and Nahru (PW 4), sister-in-law of the deceased and her husband, respectively. A report of the incident (FIR - Ex. PAS) was lodged by Velibai (PW 2) and the investigation commenced. During investigation, the body of the deceased was sent for post-mortem examination which was conducted by Dr. P. L. Patel (PW 1). On external examination, Dr. Patel found the following injuries on the body of the deceased : (1) Abrased contusion 1/4 cm x 2 mm x 1 mm at 1 cm left to left ala of nose. During investigation, the body of the deceased was sent for post-mortem examination which was conducted by Dr. P. L. Patel (PW 1). On external examination, Dr. Patel found the following injuries on the body of the deceased : (1) Abrased contusion 1/4 cm x 2 mm x 1 mm at 1 cm left to left ala of nose. (2) Abrased contusion 3 mm x 2 mm x 1 mm at 1/2 cm below the wound No. (l) (3) Abrased contusion 1 cm x 3 mm x 1 mm at 1 1/4 cm right to right ala of nose (4) Abrasion 1/2 cm x 3 mm x 1 mm at just near the medial end of left eye (5) Contusion 1 1/4 cm x 1/2 cm at middle of nasal bone (nasal bridge) (6) Abrasion 3 mm x 2 mm x 1 mm at 1 cm below the lower lip (7) Abrasion 1/2 cm x 3 mm x 1 mm at middle of forehead (8) Abrasion 1/2 cm x 1/4 cm x 2 mm at left popliteal fossa (9) Abrasion 1 mm x 1/4 cm x 1 mm at right popliteal fossa; and, (10) Contusion 7 cm x 3 cm at front of neck across just below the thyroid cartilage and on cut - extra vasation of blood into subcutaneous tissue and dark blood forcely comes out from incision. ( 2. ) In the opinion of the Autopsy Surgeon, the death was caused by asphyxia, resulting from strangulation associated with suffocation. Post mortem report is Ex.P/1. ( 3. ) On the basis of the evidence collected by the prosecution, the charge sheet was filed against the appellants. On charges being read over to them, accused denied having committed any offence and through defence evidence, tried to show that death of Makdia was caused by Navadibai (PW 3) and her husband Nahru (PW 4). The Additional Sessions Judge, however, found the appellants guilty of offences punishable u/Ss. 147 and 302/149 of the IPC and respectively sentenced them to rigorous imprisonment for one year and imprisonment for life with fine of Rs. 500/- each, failing which the accused in default to suffer simple imprisonment for one month. It is against this conviction and sentence that the accused persons have appealed to this Court. ( 4. 147 and 302/149 of the IPC and respectively sentenced them to rigorous imprisonment for one year and imprisonment for life with fine of Rs. 500/- each, failing which the accused in default to suffer simple imprisonment for one month. It is against this conviction and sentence that the accused persons have appealed to this Court. ( 4. ) Learned counsel for the appellants submits that the story of the prosecution is incomprehensible and replete with contradictions and inconsistencies. Her contention is that while allegation against appellant No. 1 Narsingh and appellant No. 2 Gulsingh is of having tied Dhoti around the neck of the deceased and strangulated him, the evidence against appellant No. 3 Sursia, appellant No. 4 Khuma and No. 5 Bhaila is only that they had caught hold of the legs and hands with a view to keep the deceased pinned. Learned counsel submits that in any case, the evidence against appellants No. 3, 4 and 5, being insufficient to base conviction, they deserve to be acquitted. She has further stated that in view of the defence evidence, participation of appellant No. 1 - Narsingh and appellant No. 2 Gulsingh is also ruled out. Learned counsel for the State has, on the contrary, stated that there is prompt FIR of the incident in pursuance whereof the body was sent for medical examination in which injuries compatible with strangulation were found on the neck of the deceased and there is overwhelming ocular testimony supporting the case of the prosecution. ( 5. ) We have heard the learned counsel for the parties and perused the record. To unfold the prosecution case, the prosecution examined seven witnesses, while the defence examined eight. From amongst the witnesses examined by the persecution, Velibai (PW 2), is the widow of the deceased who had lodged FIR (Ex. P/6) immediately after the incident; Navadibai (PW 3) is her sister-in-law and Nahru (PW 4) is the husband of Navadibai. Learned counsel has urged that the evidence of these three witnesses deserves to be discarded as they were closely related to the deceased and had an axe to grind against the accused persons. P/6) immediately after the incident; Navadibai (PW 3) is her sister-in-law and Nahru (PW 4) is the husband of Navadibai. Learned counsel has urged that the evidence of these three witnesses deserves to be discarded as they were closely related to the deceased and had an axe to grind against the accused persons. She has stated that Nahru (PW 4), being the beneficiary of the partition between the brothers and there being dispute between Nahru and the accused persons, he has falsely deposed against the accused persons to eliminate them from die arena of contest with regard to the said dispute. Navadibai (PW 3), being his wife, has supported him and Velibai (PW 2) cannot be believed as she has witnessed the incident from a distance the incident which had taken place at 08.00 p.m., ( 6. ) Valibai (PW 2) has deposed that when she heard the alarm raised by her husband, she rushed to the Nalah and found that the five appellants were assaulting her husband and after tying the Dhoti around his neck, they were pulling him. While Narsingh and Gulsingh had tied the Dhoti around the neck of the deceased, the other accused persons had kept his hands and legs in grip to keep him pinned, with the result her husband died. When she stated that why they were assaulting her husband, they intimidated her that she would meet the same fate. While she was trying to withdraw from the place of the incident on account of the threat administered by the accused. Navadibai and Nahru also came. She has also asserted that she had recognised all the accused persons in the moonlit night. She has confirmed having lodged FIR (Ex.P/6). ( 7. ) In the cross-examination it has been suggested that Nalah being 200 metres away, she could not have witnessed the incident or recognised the accused, We may record that she has stated that she had rushed to that side and, therefore, there was possibility of she having seen the incident. She is corroborated by the prompt FIR, though the counsel for the appellants submits that this FIR was received by the jurisdictional Magistrate on 18/10/1997. ( 8. She is corroborated by the prompt FIR, though the counsel for the appellants submits that this FIR was received by the jurisdictional Magistrate on 18/10/1997. ( 8. ) Though this witness has tried to exaggerate by stating that the three appellants had also caused injuries to the deceased by stating that they had also administered fist blows, she has not been able to explain the omission of the said fact in the FIR (Ex. P/6). She has further stated that she had gone to the Nalah and seen the incident from about 18 feet. She has, however, stated that her husband was writhing for an hour before dying. She has admitted that the enmity was between her brother-in-law PW-4 and the accused and not with the deceased. ( 9. ) Navaaibai has corroborated the evidence of Valibai (PW 2). She has also stated (hat the Nalah where the incident took place, is about 100 metres from the house of the deceased. However, since Valibai (PW 2) has stated that she has actually gone to the place of the incident, it pales into insignificance as to what was the distance between her house and the place of the incident. ( 10. ) Nahru (PW 4) has corroborated the evidence of the other witnesses. He has categorically stated that while appellant No.3 Sursia, appellant No.4 Khuma and appellant No.5 Bhaila were holding the deceased, the other appellants had tied Dhoti ground his neck and strangulated him. ( 11. ) We have closely examined the testimony of the above eye-witnesses. Barring minor and insignificant discrepancies, the testimony of these witnesses is consistent with regard to the participation of appellant No. 1 and No.2 in tying the Dhoti around the neck of the deceased and strangulating him while he was kept pinned by the other appellants. ( 12. ( 11. ) We have closely examined the testimony of the above eye-witnesses. Barring minor and insignificant discrepancies, the testimony of these witnesses is consistent with regard to the participation of appellant No. 1 and No.2 in tying the Dhoti around the neck of the deceased and strangulating him while he was kept pinned by the other appellants. ( 12. ) In the defence witnesses Kashiram (DW 1) has stated that there was no dispute between the deceased and the accused persons; Parvat Singh (DW 2) has referred to the dispute between the accused and the brother of the deceased namely Nahru (PW 4); Nizamuddin Sheikh, Patwari, (DW 4) has referred to the record pertaining to the land; Handibai (DW 4) had filed a complaint to the Police that someone else committed the murder; Madhusudan (DW 5), Advocate has confirmed that the report was sent to the Superintendent of Police; Hukamchand Patidar (DW 6), has also supported the case of Handibai; S P.Pawar (DW 7) has also been examined to show that the report has been forwarded to his Police Station and, S. S. Mishra (DW 8) Reader to the Superintendent of Police, has been examined to show that such a complaint had been received. ( 13. ) If the defence evidence is examined in the context of the eye witness account, the prompt FIR and consistency of the statements of the eye-witnesses, it becomes clear that although a complaint may have been filed disputing the factum of the involvement of the accused persons, the overwhelming evidence to the contrary indicates the falsity of the stand subsequently taken. We are, thus, of the considered view that the appellant Nos. 1 and 2 namely Narsingh and Gulsingh had strangulated the deceased by tying Dhoti around his neck while the other accused persons had kept him pinned. Though the learned counsel for the appellants has laid great stress about the false involvement of appellants No.3, 4 and 5, since the evidence of the prosecution has remained unimpeached, we find no substance in the said argument. ( 14. ) In the result, this appeal fails and is dismissed. Appeal dismissed.