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Madhya Pradesh High Court · body

2008 DIGILAW 687 (MP)

Pappu Alias Anil And Kasrat v. State Of M. P.

2008-05-13

ARUN MISHRA, SUSHMA SHRIVASTAVA

body2008
JUDGMENT : ARUN MISHRA, J. The appeal has been preferred by the appellants Pappu @ Anil and Kasrat aggrieved by their conviction recorded under section 302/34, Indian Penal Code for committing murder of Brajlal and Anita. They have been sentenced to imprisonment for life and fine of Rs. 3,000, in default of payment of fine they have to undergo R.I. for further one year. Accused have also been convicted under section 3(2)(v) of SC and ST (Prevention of Atrocities) Act, 1989 and sentenced to imprisonment for life and fine of Rs. 3,000, in default of payment of fine they have to undergo R.I. for further one year. 2. Briefly stated the prosecution case is that deceased Anita was daughter of accused Kasrat and sister of accused Pappu @ Anil. She performed marriage against the wishes of the family to a person of Scheduled Tribe, namely, Brajlal. After eloping with him, marriage was performed at Bhopal, they resided for some time at Bhopal, performed marriage in a temple and came back to the village and started living together as husband and wife. It was taken to be an insult of the family by the accused persons. Pappu @ Anil on 5-10-1998 at about 11 AM came to the house of deceased Brajlal and asked him to come out and threatened him with life. Jaytribai, aunt of the deceased Brajlal, came out to give understanding to him. In the evening at about 4 PM on the same day, i.e. on 5-10-1998 when Anita and Brajlal were going to police station to lodge the report, when they reached in front of the house of accused, accused Anil caught hold of his sister Anita and her father Kasrat inflicted two injuries on her neck by means of axe. Anita fell down, Brajlal started running to save his life, Anil as well as Kasrat chased him, Anil caught hold of Brajlal and two injuries were inflicted by accused Kasrat on his neck, Anita and Brajlal both succumbed to the injuries on the spot itself. Telephonic information was given by Magan to the police station. Police of rural Police Station, Navegaon reached to the spot. Jaytribai informed the fact to Shri Y. K. Sahu, Assistant Sub-Inspector of Police on the basis of which Dehati Nalish (P/26) was registered and on that basis Marg Intimation (P/27) was recorded. Telephonic information was given by Magan to the police station. Police of rural Police Station, Navegaon reached to the spot. Jaytribai informed the fact to Shri Y. K. Sahu, Assistant Sub-Inspector of Police on the basis of which Dehati Nalish (P/26) was registered and on that basis Marg Intimation (P/27) was recorded. FIR (P/30) was recorded on the basis of Dehati Nalish. There were bleeding injuries on the person of deceased Anita and Brajlal, inquest of the dead bodies (P/14 and P/15) were prepared, spot map (P/2 and P/21) were also prepared. Blood stained and control soil were seized as per memos (P/4 and P/5). In front of house of accused Kasrat near culvert pieces of broken tube light and a pair of Chappals were seized as per memo (P/6). Accused were arrested on 6-10-1998. At the instance of accused Kasrat an axe was seized as per seizure memo (P/13), blood stained clothes were also seized, clothes from Anil @ Pappu were also seized as per memos (P/24 and P/25), autopsy was performed, reports (P/9 and P/10) were submitted. 3. Accused abjured the guilt and contended that they have been falsely implicated in the offence. 4. The trial Court has convicted the accused/appellants for commission of offence under section 302/34, Indian Penal Code and section 3(2)(v) of SC and ST (Prevention of Atrocities) Act, 1989 and sentenced them as aforesaid, aggrieved thereby the appeal has been preferred. 5. Shri S. C. Datt, learned Sr. Counsel appearing with Shri Siddharth Datt for appellants has submitted that it appears that witnesses Jaytribai (PW.1) and Sumitrabai (PW.2) have been later on planted as witness. Their depositions do not inspire confidence. It was not possible for accused Pappu @ Anil to caught hold from behind of deceased Anita and Brajlal, in case Pappu @ Anil has caught hold of deceased, as stated by the witnesses, it would not have been possible for a person to inflict the injuries from behind on the neck of both the deceased persons. Presence of eye witnesses in the spot map has not been mentioned that also indicates that witnesses had not in fact witnessed the incident. Learned senior counsel has also placed reliance on two decisions to be referred later contending that Pappu @ Anil could not be said to have shared common intention with accused Kasrat. 6. Shri S.K. Rai, learned Govt. Learned senior counsel has also placed reliance on two decisions to be referred later contending that Pappu @ Anil could not be said to have shared common intention with accused Kasrat. 6. Shri S.K. Rai, learned Govt. Advocate appearing for State has submitted that it is a case where both the accused persons shared common intention. Accused Pappu @ Anil went to the house of deceased Brajlal in the morning and threatened him to kill. Brajlal and Anita had performed the marriage against the wishes of accused persons, they had taken it as an insult as Brajlal was a tribal and accused belonged to higher caste of Kalar. Learned GA has submitted that common intention was clearly made out in the facts and circumstances of the instant case, there was motive to commit the offence, version of Jaytribai (PW.1) and Sumitrabai (PW.2) have been rightly relied upon by the Court below, no case for interference in appeal is made out. 7. It is not in dispute that there was enmity between the parties as daughter of accused Kasrat and sister of accused Pappu @ Anil had eloped with deceased Brajlal and performed the marriage in a temple at Bhopal, they resided there for quite sometime and thereafter came back to the village and were living as husband and wife. The marriage was performed against the wishes of family members by Anita. It is apparent that Pappu @ Anil went to the house of deceased Brajlal in the morning armed with a tube light rod and called Brajlal outside. Jaytribai (PW.1) came outside, she was also threatened. Brajlal was threatened with life by accused Anil in the morning, tube light rod was thrown by accused Anil, hence its broken pieces were found. Anil thereafter went back to the house. Jaytribai (PW.1) came outside, she was also threatened. Brajlal was threatened with life by accused Anil in the morning, tube light rod was thrown by accused Anil, hence its broken pieces were found. Anil thereafter went back to the house. When accused Anita and Brajlal were going to lodge the report of the said incident of morning, Anil asked them why they were going to police station, Anita told him that due to him she was going to police station, Anil caught hold of his sister Anita, Kasrat came armed with an axe and inflicted injuries by axe on the neck of Anita, she sustained bleeding injuries and died on the spot, thereafter Brajlal tried to run away, Anil followed him, caught hold of him in front of shop of Bali, Kasrat reached there and inflicted two injuries on the neck of deceased Brajlal, he also succumbed to the injuries on the spot. Telephonic information was given to the police. In the cross-examination, Jaytribai (PW.1) has withstood the cross-examination. She has also stated that she had informed the fact that Anil came in the morning armed with a tube light rod and had threatened Brajlal with life. It was suggested in cross examination that Anil had threatened Jaytribai also with life, in case it was not mentioned in police statement (Ex.D/1) she was unable to state the reason. Perusal of police statement (Ex.D/1) indicates that morning incident has been mentioned in the police statement to the effect that accused Anil came armed with a tube light rod and threatened Brajlal with life and witness was also abused when she intercepted. None mention of other facts- as to threat of life being meted out to the witness cannot be said to be significant omission, particularly when morning incident had been mentioned in substance, it could not be said to be a material omission so as to cast doubt on the veracity of deposition of witness Jaytribai (PW.1). Learned counsel has also referred to para 24 of deposition of witness Jaytribai (PW.1). As per version of witness the accused caught hold of Anita from behind and Kasrat inflicted injuries. Sumitrabai (PW.2) also reached the spot when police came. Sumitrabai was hiding in bush and came out after police had arrived at. Learned counsel has also referred to para 24 of deposition of witness Jaytribai (PW.1). As per version of witness the accused caught hold of Anita from behind and Kasrat inflicted injuries. Sumitrabai (PW.2) also reached the spot when police came. Sumitrabai was hiding in bush and came out after police had arrived at. As brutal murder of two persons was committed, obviously Jaytribai (PW.1) being a member of family of deceased also entertained fear from accused persons as such she reached to the spot after witnessing the incident only when police had arrived at the spot. There is nothing unusual in her conduct and conduct of Sumitrabai that she also reached near the dead body when police had arrived. It appears that Sumitrabai had also witnessed the incident at a distance of about 25 steps, i.e., about 40-50 fts. 8. When we consider statement of Sumitrabai (PW.2), the only other eye witness of the incident supporting the prosecution case, she has stated that she is mother of Brajlal and mother-in-law of Anita. She has stated that deceased reached near hand pump situated near the house of accused persons, Anil caught hold of Anita and Kasrat inflicted injuries on her neck, Brajlal started running from the spot, Anil chased him, caught hold of him and thereafter Kasrat inflicted injuries on neck of Brajlal with axe. Witness had taken goats for the purpose of grazing at the relevant time and witnessed the incident from 25 steps away. She has also supported the morning incident and has stated that Kasrat was on left side of Anita when injuries were inflicted on her neck. Though she has stated that Anil caught hold of Anita from the front, but by the aforesaid contradiction, no dent is caused in the version of prosecution. Fact remains that deceased Brajlal was chased by Pappu @ Anil and he caught hold of Brajlal and thereafter Kasrat reached to the spot and inflicted injuries, Brajlal was running to save his life, but intention of accused Pappu @ Anil was writ large, he caught hold of Brajlal after Anita was done away with and Kasrat inflicted the injuries by means of axe. Intention of Pappu @ Anil was also clear from the fact that in the morning he had reached to the house of deceased Brajlal and had threatened him with life. Intention of Pappu @ Anil was also clear from the fact that in the morning he had reached to the house of deceased Brajlal and had threatened him with life. Both, father and son, were not happy as inter caste marriage was performed by Anita with a person of lower caste, that too a tribal, thus, accused shared common intention in the instant case is writ large. The facts and circumstances projected makes out a case that accused shared common intention to commit murder of deceased Brajlal as well as Anita. In our considered opinion they have been rightly convicted for commission of offence of murder of Brajlal and Anita under section 302/34, Indian Penal Code. Their conviction under section 3(2)(v) of SC and ST (Prevention of Atrocities) Act, 1989 is also found to be proper as marriage of Anita was performed by deceased Brajlal who was a member of Scheduled Tribe, the caste of deceased Brajlal was lower as compared to the caste of accused person, thus, they were not happy and felt insulted as marriage of Anita was performed against their wishes, thus, it is clearly a case where section 3(2)(v) of SC and ST (Prevention of Atrocities) Act, 1989 is clearly attracted, thus, conviction and sentence recorded by the Court below calls for no interference in the appeal. 9. As already mentioned by us that Pappu @ Anil in the morning went to the house of deceased Brajlal armed with a tube light rod and threatened him with life, when Brajlal was going along with his wife Anita to lodge the report, accused again came out, intercepted them and caught hold of Anita and thereafter injuries were inflicted by father of accused Pappu @ Anil, namely, Kasrat, when deceased Brajlal tried to run away to save his life, it was only Pappu @ Anil who caught hold of Brajlal and facilitated the injuries to be inflicted by accused Kasrat on Brajlal also. Thus, beyond periphery of doubt it is established in the instant case that accused Pappu @ Anil also shared common intention with Kasrat his father to kill Anita and Brajlal. 10. Shri S. C. Datt, learned senior counsel has relied upon decision of Apex Court in Rau Bhagwanta Hargude and another vs. The State of Maharashtra, AIR 1979 SC 1224 . 10. Shri S. C. Datt, learned senior counsel has relied upon decision of Apex Court in Rau Bhagwanta Hargude and another vs. The State of Maharashtra, AIR 1979 SC 1224 . Accused No. 2 was given the benefit of doubt as it was difficult to believe that he had held the deceased by his chest without receiving any injuries in the process. The facts of the aforesaid decision are quite distinguishable. In the instant case, injuries were inflicted not on the chest but on the neck, it was possible after accused Pappu @ Anil had caught hold of deceased Anita as well as Brajlal to inflict the injuries on the neck as neck was quite open on which injuries could have been inflicted. Ratio of the aforesaid dictum cannot be applied to the facts of instant case. Reliance has also been placed by learned senior counsel on decision of Apex Court in Shambhu Kuer vs. State of Bihar, AIR 1982 SC 1228 in which Shambhu Kuer caught hold of deceased and scuffled with him while another accused took out knife and commenced assault. Therefore, it was held that it could not be inferred that appellant Shambhu Kuer shared intention of another accused to murder the deceased. It was held that at the most appellant was vicariously liable for an offence under section 326 read with section 34 of Indian Penal Code. Thus, he was sentenced to imprisonment already undergone by him. The facts of instant case are totally different. In case of Shambhu Kuer vs. State of Bihar (supra) there was already a scuffle which was taking place between appellant Shambhu and the deceased, at that time other accused Mandip took out the knife and inflicted the injuries on the person of deceased. Ratio of the aforesaid dictum cannot be applied to the facts of instant case. 11. Shri S. K. Rai, learned GA has relied upon a decision of Apex Court in Major Singh vs. State of Punjab AIR 2003 SC 342 in which the prosecution evidence indicated that accused held the hand of one of deceased to facilitate assailants to assault the deceased, thus, it was held that he shared common intention for committing murder of deceased. 12. Resultantly, we find no merit in the appeal. The appellants are stated to be in jail. Their conviction and sentence are hereby confirmed. 12. Resultantly, we find no merit in the appeal. The appellants are stated to be in jail. Their conviction and sentence are hereby confirmed. The appeal deserves dismissal, same is hereby dismissed.