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Madhya Pradesh High Court · body

2008 DIGILAW 85 (MP)

MAHESH v. STATE OF MP.

2008-01-17

MANJUSHA P.NAMJOSHI, S.L.KOCHAR

body2008
Judgment S.L.Kochar, J. ( 1. ) The aforesaid appeals are arising out of one judgment and order, hence, they are being disposed of by this common judgment. ( 2. ) The appellants have challenged their conviction under Section 302/34 of the IPC, sentenced to R.I. for life and fine of Rs.500/- each, in default of payment of fine additional R.I. for 6 months. All the sentences ordered to run concurrently. ( 3. ) Prosecution case as put forth before the Trial Court is that appellants and complainant party were close relatives and residing adjacent to each other. Kuntabai(PW-3) and her cousin sister (daughter of her mothers sister) Geetabai were married in one family resident of Village Shiygarh, Police Station Betma. Both had come on Rakhi festival to Gautampura at their parental house. On 08.08.2001, in day time Geetabai demanded her ornament (Kadi), on which Kuntabai told her to wait till arrival of father-in-law and she will give her ornament. On this issue, brother-in-law of Geetabai and appellant Karansingh, brother appellant Kalu, nephew, appellant Mahesh and brother-in- law juvenile accused Prakash jointly hurled filthy abuse in the name of mother and sister. After this incident, all the 4 accused reached in front of the house of the complainant PW-5 Mohan having Chhoori, Lathi, Ballam(spear) and assaulted complainant Mohan(PW-5) by their respective weapons. Complainant Mohan sustained 5 injuries by sharp edged weapon. When father of Mohan deceased Jagannath tried to save Mohan, juvenile accused Prakash gave Ballam blow on the chest of deceased Jagannath. Appellant Karansingh caused injury to him by Chhoori on thigh. All accused persons assaulted the deceased by their respective weapons. Deceased Jagannath sustained 4 injuries caused by sharp pointed and edged weapon: He died instantaneously. Incident was witnessed by injured witness PW-5 Mohan and PW-3 Kuntabai, PW-4 Ramkanyabai, PW-6 Kailash. PW-5 Mohan immediately reached to the Police Station and lodged the FIR (Ex.D/4), recorded by PW-8 Shivpalsingh Chouhan, S.H.O.. Witness Mohan was seriously wounded, therefore, sent to hospital for treatment. After preparation of inquest, dead body of Jagannath was sent for postmortem examination and the same was conducted by PW-1 Dr. P.C.Kashyap. Dr.Kashyap also medically examined PW-5 Mohan and issued Medico Legal Certificate (Ex.P/1) as well as postmortem report of deceased Jagannath (Ex.P/2). PW-8 Shivpal Singh Chouhan, Station House Officer reached on the spot and effected seizure of blood stained and controlled earth. P.C.Kashyap. Dr.Kashyap also medically examined PW-5 Mohan and issued Medico Legal Certificate (Ex.P/1) as well as postmortem report of deceased Jagannath (Ex.P/2). PW-8 Shivpal Singh Chouhan, Station House Officer reached on the spot and effected seizure of blood stained and controlled earth. The accused persons were nabbed and on their disclosure statements, weapons were seized. Seized articles were sent for medical examination to Forensic Science Laboratory and its report is Ex.P/21. Spot map (Ex.P/22) was got prepared by Patwari and Investigating Officer Shri Chouhan also prepared map (crime details form) Ex.P/11. On due investigation appellants were charge-sheeted for commission of offence under Section 302/34 and 307/34 of the IPC. The fourth juvenile co-accused Prakash was produced before Juvenile Court. ( 4. ) Appellants abjured their guilt and pleaded innocence, therefore, put to trial. They have not examined any witness in defence. The learned Trial Court finding the appellants guilty, convicted and sentenced them as mentioned here-in-above. ( 5. ) Learned counsel for the appellant Mahesh has submitted that there is no cogent and reliable evidence on record regarding participation of this appellant in the incident and his presence could be in normal course being next door neighbour of the complainant party. The learned counsel for the appellant Karansingh and Kalu has submitted that overt act attributed to Kalu causing lathi blows is not corroborated by the medical evidence, therefore, he is entitled for getting benefit and act of Karansingh would at the most fall under Section 304 Part-I of the IPC, because there was no pre meditation and pre plan of this appellant with main accused Prakash, who was produced before the Juvenile Court. ( 6. ) The core question for consideration before us is whether all the accused persons are responsible for the acts of each other with the aid of Section 34 of the IPC and as to what offence would be made out against them. The conviction of the appellants is based on eye witnesses account of PW-3 Kuntabai, PW-4 Ramkanyabai, PW-5 injured eye witness Mohan, who lodged the report Ex.D/4 and PW-6 Kailash. The presence of all these 4 witnesses on the spot cannot be doubted because they were residing in one house and at another side of wall of their house, the houses of the accused persons were situated. The incident occurred in front of the house of the appellants. The presence of all these 4 witnesses on the spot cannot be doubted because they were residing in one house and at another side of wall of their house, the houses of the accused persons were situated. The incident occurred in front of the house of the appellants. While appreciating the evidence of all these 4 eye witnesses, we have reminded ourselves to keep in mind that all the eye witnesses are of one family and related to deceased. The accused persons were also closely related to them and both families were not having old inimical term. Eye witnesses and the close relatives of the deceased would not leave the real culprit by implicating falsely the other person, but at the same time, they are not immune to involve innocent person/persons along with real culprit. Therefore, we have to judge the evidence of all the 4 eye witnesses with great care and caution. All the 4 eye witnesses have specifically stated that dispute arose in day time between Kuntabai (PW-3) and Geetabai regarding ornament which was demanded by Geetabai from Kuntabai. They are the cousin sisters. PW-3 Kuntabai has deposed that when Geetabai, younger sister of wife of appellant Karansingh demanded her ornament, she asked her to call her father-in-law and she would return the ornament. There was some verbal altercation between wife of Karansingh and this witness on this issue. She has also stated that wife of Karansingh entered into quarrel with her brother Kailash(PW-6) and struck him by a piece of brick upon which Kailash also assaulted her causing injury on the hand of Narmadabai and Narmadabai challenged them to take revenge after arrival of her husband i.e. Karansingh. But, all these facts are not mentioned in her statement recorded by police under Section 161 of the Cr.P.C. There is also omission of the fact that appellant Mahesh was having Katar in his possession and all the appellants with juvenile co-accused Prakash consumed liquor in their house. The further say of this witness Kuntabai is that appellants along with co-accused attacked at her house and beaten the door by lathi on which her brother PW-5 Mohan went out of the house to admonish the accused persons, but he was assaulted by all the 4 accused persons. The further say of this witness Kuntabai is that appellants along with co-accused attacked at her house and beaten the door by lathi on which her brother PW-5 Mohan went out of the house to admonish the accused persons, but he was assaulted by all the 4 accused persons. According to this witness, Karansingh, Kalu, Prakash and Mahesh were having Chhoora, Lathi, Ballam(spear) and Katar respectively and they all assaulted Mohan, who fell unconscious. Appellants also assaulted her father Jagannath. PW-5 Mohan after regaining consciousness went to Police Station for lodging the report and appellants were assaulting her father, who died on the spot. This witness does not give specific overt act of the appellants and her version is not corroborated by the medical evidence of PW-1 Dr.P.C.Kashyap, who examined PW-5 Mohan and proved his MLC Ex.P/1 as well as postmortem report Ex.P/2, regarding causing injury to Mohan and deceased Jagannath by lathi by appellant Kalu. Witness Mohan sustained 5 incised wounds caused by sharp edged weapon and in the opinion of Dr.Kashyap all the injuries were simple in nature. Deceased Jagannth sustained two stab injuries and two incised wounds. These injuries could be caused by sharp edged and pointed object and not by hard and blunt object like lathi. ( 7. ) Supreme Court in case of Thaman Kumar V/s. State of Union Territory of Chandigarh (2003) 6 SCC 380 has explained the situation regarding conflict between oral testimony, and medical evidence as under :- "The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are not found on that portion of the body where they are deposed to have been caused by the eye witnesses. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. The same kind of inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular weapon is not truthful. However, in the second and third categories no such inference can straight away be drawn. The manner and method of assault, the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. ( 8. ) In view of the aforesaid classification, the case of appellant Kalu would fall within the first category i.e. total absence of injuries which are normally caused by lathi, therefore, he is entitled for getting benefit. When overt act of Kalu was belied by medical evidence, he cannot be convicted with the aid of Section 34 of the IPC. Supreme Court has dealt with such situation in case of Nachhettar Singh and others V/s. State of Punjab (AIR 1976 Supreme Court Page No.951) and held that when prosecution choose to give the details of the story of assault with the different different weapons by the appellants, it cannot escape the consequence when a vital part of the details is demonstrably found to be wrong and accused persons cannot be convicted with the aid of Section 34 of the IPC. The appellant Kalu and Karansingh are the real brother and were the next door neighbour of the complainant party, therefore, presence of Kalu in front of their house could be in usual course. ( 9. ) The star eye witness PW-5 Mohan in para-2 of his statement has specifically stated that he was assaulted by appellant Karansingh by Katar causing injury on his head, neck, abdomen and eye, he fell unconscious and regained consciousness after half an hour and went to lodge the report and that after his going to Police Station his father was assaulted. In view of this admission, it is crystal clear that he did not witness the incident of assault of his father deceased Jagannath. In view of this admission, it is crystal clear that he did not witness the incident of assault of his father deceased Jagannath. His version about causing injury by Katar, a sharp edged weapon is fully corroborated by medical evidence of PW-1 Dr.PC.Kashyap, who examined him and also proved MLC report (Ex.P/1) as well as by the eye witness account of PW-4 Ramkanyabai and PW-3 Kuntabai. ( 10. ) Eye witness PW-6 Kailash son of the deceased has deposed that at the time of incident, appellants after consuming liquor came in front of his house and abused them, on which his father deceased Jagannath and brother PW-5 Mohan went out of the house to admonish them, whereupon accused persons started assaulting them. The further say of this witness is that he was inside the house. His mother did not permit him to go out of the house and chained the door from inside. He came out of the house when the incident was over and his father was already killed. He saw spear injury on chest and scapula region of his father. Further in paragraph-7, he specifically admitted that he was inside the house and door was chained by her mother because of which he could not witness the incident occurred outside the house. In view of this statement, the testimony of this witness Kailash can be useful upto the extent that quarrel took place in front of his house. ( 11. ) PW-3 Kuntabai and PW-4 Ramkanyabai had witnessed whole incident and according to Kuntabai Karansingh, Prakash and Mahesh were having Chhoora, Ballam and Katar. All the three assaulted by their respective weapons to her brother Mohan (PW-5) and her father was also assaulted, but she failed to explain the material omission in her police statement about possession and use of Katar by appellant Mahesh. She has also specifically admitted in paragraph 12 that which accused caused how many blows on the person of her father, she could not see because of darkness. At the same time, she has stated that in the light she saw the weapon in the possession of the appellants. In paragraph 5, this witness Kuntabai has also stated that appellants had consumed liquor because of which her brother and father went to admonish them. At the same time, she has stated that in the light she saw the weapon in the possession of the appellants. In paragraph 5, this witness Kuntabai has also stated that appellants had consumed liquor because of which her brother and father went to admonish them. This factual position has also been stated by Ramkanyabai (PW-4), the daughter of deceased and according to this witness, appellants first assaulted her brother PW-5 Mohan and when he became unconscious and their father Jagannath tried to rescue Mohan, he too was assaulted by spear by juvenile accused Prakash whereas appellant Karansingh caused injury by Chhoora, Mahesh caused injury by Gupti and appellant Kalu used lathi. In the statement of Kuntabai (PW-3) and Ramkanyabai(PW-4), there is consistency regarding use of Chhoora by appellant Karansingh and spear by appellant Prakash. In the police statement of PW-3 Kuntabai, there is omission of the fact that appellant Mahesh was having Katar and there is omission in the police statement of PW-4 Ramkanyabai regarding possession and use of Gupti for causing injury to deceased by appellant Mahesh. The learned counsel for the appellant Mahesh has strenuously argued that there is contradiction between the statements of PW- 3 Kuntabai and PW-4 Ramkanyabai as to what was the weapon in the hand of appellant Mahesh. On due consideration, we do not find much difference between weapon Chhoori and Gupti and there could be mistake in understanding or naming the weapon by these two witnesses because of distance and visibility, but there is clear omission which amount to contradiction of important and material fact regarding specific overt act of appellant Mahesh in the police statements of both witnesses that appellant Mahesh caused injuries to deceased by Chhoori or Gupti. Therefore, in our considered view, appellant Mohan is also entitled to get benefit of doubt. There is consistency in the statements of both the eye witnesses PW-3 Kuntabai and PW-4 Ramkanyabai for causing injury to Mohan(PW-5) and deceased Jagannath by appellant Karansingh by Chhoora (big knife) and by juvenile co-accused Prakash by spear (Ballam). Their version against both these appellants is fully corroborated by the medical evidence of PW-1 Dr.P.C.Kashyap. ( 12. ) Learned counsel for the appellants Karansingh and Kalu has placed reliance on Supreme Court judgment passed in case of Jagannath V/s. State of M.P. 2007 AIR SCW 5 941. Their version against both these appellants is fully corroborated by the medical evidence of PW-1 Dr.P.C.Kashyap. ( 12. ) Learned counsel for the appellants Karansingh and Kalu has placed reliance on Supreme Court judgment passed in case of Jagannath V/s. State of M.P. 2007 AIR SCW 5 941. In this case, the incident occurred all of a sudden on account of collection of pieces of wood and stealing the same by accused and when deceased and his companion obstructed carrying away wood there upon accused inflicted fatal axe blow to deceased. In this factual backdrop, the Supreme Court has held that there was no pre-meeting of mind and pre-meditation between the accused persons for causing death of deceased and appellant Jagannath did not cause any injury to deceased Ramsingh, who was caused serious injury by co-accused Ramsingh by axe on his head. In the instant case, facts and evidence are altogether different in day time between women folk of two families, quarrel took place on account of returning of ornaments. The matter was complained to the male members of one family i.e. accused persons on which accused persons reached in front of the house of the deceased and appellant Karansingh as well as juvenile accused Prakash assaulted PW-5 Mohan and deceased Jagannath by Chhoori and Ballam (spear). It was not a sudden quarrel. The appellants Karansingh and Prakash reached in front of the house of the complainant party having deadly weapon in their hands. They abused them and when PW-5 Mohan and his father came out from their house, they assaulted them. PW-5 Mohan sustained 5 injuries by sharp edged weapon and deceased Jagannath sustained 4 injuries. Two injuries of stab wounds could be caused by sharp pointed piercing object spear and rest injuries could be caused by sharp edged weapon like Chhoora by appellant Karansingh, therefore, looking to the number and nature of injuries caused by appellant Karansingh on the person of Mohan and deceased Jagannath it is easy to discern that he was having common intention with co-accused Prakash to commit murder of Jagannath and in furtherance of common intention committed murder of Jagannath and caused injuries to Mohan. Looking to the nature of weapon, number of injuries caused on the person of witness Mohan as well as deceased Jagannath. Looking to the nature of weapon, number of injuries caused on the person of witness Mohan as well as deceased Jagannath. It can also be said that they developed common intention to commit murder of Jagannath on the spot when repeated blows by dangerous weapons were given by both accused persons (as held by Supreme Court in paragraph 13 of the case of Jagannath (supra)). ( 13. ) This is true that incident occurred in a residential area and witnesses have admitted presence of inhabitants of the said area but none was examined as independent witness by the prosecution. This situation has been explained by PW-8 Investigating Officer, Shivpalsingh Chouhan in paragraph 10 of his deposition that he interrogated persons of the locality but they were not disclosing any material thing regarding incident, therefore, he did not record their statements. We have given our anxious consideration to this aspect and are of the opinion that Investigating Agency tried to examine the independent witnesses but when none came forward, their statements were not recorded. It is not a case where independent witnesses were available but police did not try to interrogate them or make them witness or examined during the course of investigation, but did not examine in the Court. Presence of aforementioned all the 4 witnesses is fully established in the instant case as incident occurred in front of their house and accused persons were their next door neighbour. Between their houses there was only a wall. ( 14. ) In the wake of aforesaid legal and factual screening of the case the appeal of appellant Mahesh (Cr.A.No. 163/2002) is allowed, his conviction and sentence passed by the Trial Court are hereby set aside. He is on bail. His bail and surety bonds stand discharged. ( 15. ) Cr.A.No. 179/2002 is allowed in part. The conviction and sentence of appellant No.2 Kalu are hereby set aside. He is on bail. His bail and surety bonds stand discharged and appeal of appellant No.l Karansingh is hereby dismissed. ( 16. ) Original judgment is retained in Cr.A.No. 163/2002 and a copy whereof be placed in the record of connected Cr.A.No. 179/2003. Appeal dismissed.