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Madhya Pradesh High Court · body

2009 DIGILAW 1084 (MP)

NELSON s/o ELISH CHRISTIAN v. STATE OF M. P.

2009-09-02

S.R.WAGHMARE, SUBHASH SAMVATSAR

body2009
JUDGMENT : S. SAMVATSAR, J. 1. This appeal is preferred by the four accused Nelson, Shilash, Bhima and Arjun assailing the judgment of conviction and sentence dated 2-2-1999 passed by Third Additional Sessions Judge, Alirajpur, District Jhabua whereby the sessions Court has convicted all the accused appellants for commission of the offence under sections 302/34 and 307/34 of Indian Penal Code and sentenced them to undergo imprisonment for life and ten years rigorous imprisonment respectively. The sentences so awarded were directed to run concurrently. 2. All the appellants accused are tried for committing murder of deceased Amansingh and causing injury dangerous to life to Harsingh. 3. As per the case of prosecution, on 4-4-1997 complainant Reshambai (PW 1) along with her husband Amansingh (the deceased), her mother-in-law Virju and brother-in-law Harsingh were manufacturing bricks. At about 4.30 in the evening, accused Arjun and Bheem armed with bows and arrows and accused Nelson and Shilash armed with lathi came there. They abused deceased Amansingh and asked why they are manufacturing bricks near the house of Nelson. When the deceased objected to it, accused Arjun and Bheem caused injury to him on the back by arrows when he was running away. Accused Arun caught hold of the deceased and asked other accused to kill him. Whereupon, accused Bheem snatched lathi from accused Shilash and gave a blow of lathi on the head of deceased Amansingh. Amansingh fell down and died on the spot. Thereafter, these accused chased Harsingh. Accused Arjun struck an arrow to Harsingh from back side which caused injury on the stomach of the injured. Accused Bheem caused injury by stone to Harsingh which caused an injury near the knee of left leg. 4. On the report, lodged by Reshambai (PW 1), police investigated the matter and filed challan against the accused for commission of the offence under sections 302/34 and 307/34 of Indian Penal Code. The case was committed to the Court of session for trial. The Sessions Court framed charges against the accused, recorded the evidence and appreciating the same has convicted and sentenced the appellants accused as indicated hereinabove. Hence, this appeal at the instance of convicts. 5. Contention of Shri Bhagwansingh, learned counsel for the appellants accused is that there is conflict in the statements of Reshambai (PW 1) and Harsingh (PW 2), and the allegations made in the FIR (Ex.P/12). Hence, this appeal at the instance of convicts. 5. Contention of Shri Bhagwansingh, learned counsel for the appellants accused is that there is conflict in the statements of Reshambai (PW 1) and Harsingh (PW 2), and the allegations made in the FIR (Ex.P/12). In the FIR (Ex.P/12), there are no allegations against accused Bheem of causing injury on the head of the deceased while there are no allegations against accused Nelson of causing injuries to the deceased in the FIR. However, in the statements of Reshambai (PW 1) and Harsingh (PW 2), there are allegations against accused Nelson and Shilash of causing injuries on the head of the deceased, when there are no allegations against accused Bheem of causing any injury to the deceased or any other injured person. It is the contention of the learned counsel for the appellants accused that in view of this contradiction, impugned judgment deserves to be set aside and the appellants are entitled to be acquitted. 6. Shri Girish Desai, learned Additional Advocate General, appearing for the respondent State, on the other hand, supported the judgment of the Sessions Court and contended that in the absence of putting the FIR in the cross examination and confronting the witnesses, the statements of these eye witnesses cannot be disbelieved. 7. First eye witness examined by the prosecution in support of its case is Reshambai (PW 1), She says that on the date and time of the incident, she was present at the spot manufacturing bricks. This witness, Birju, Harsingh, Valsingh, Ratu, Rupsingh, Bhavsingh and her husband Amansingh (deceased) were manufacturing bricks at the bank of river. Accused reached there. Accused Arjun and Bheem were armed with bows and arrows, while accused Shilash and Nelson were armed with lathis. The accused caught hold of the deceased and asked him why they are manufacturing bricks. Accused Shilash and Nelson caused injuries by lathis on the head of the deceased. Sustaining the injuries, deceased fell down and died. Thereafter, these accused chased Harsingh. It is further deposed by thiswitness that accused Arjun and Bheem had caused injuries to Harsingh by stones. 8. Another eye witness examined by the prosecution in support of its case is Parsingh (PW 2). He has fully corroborated the version of Reshambai (PW 1). 9. The Sessions Court has believed these two eye witnesses. Thereafter, these accused chased Harsingh. It is further deposed by thiswitness that accused Arjun and Bheem had caused injuries to Harsingh by stones. 8. Another eye witness examined by the prosecution in support of its case is Parsingh (PW 2). He has fully corroborated the version of Reshambai (PW 1). 9. The Sessions Court has believed these two eye witnesses. From the cross examination of these two eye witnesses nothing could be pointed out by the counsel for the appellants accused to disbelieve these eye witnesses. 10. Dr. R. Mandal (PW 3) is the doctor who had medically examined injured witness Harsingh (PW 2) after the incident. He found one injury in the stomach of Harsingh which according to him was caused by sharp and edged weapon like arrow. He also found another injury caused by hard and blunt object to Harsingh which was simple in nature. 11. Dr. N. S. Dawar (PW 4) had performed autopsy of the dead body of deceased Amansingh and found two injuries on the head of the deceased caused by hard and blunt object. Thus, the injuries attributed to accused Nelson and Shilash are corroborated by medical evidence. Both these accused hadcaused injuries on the head of the deceased. 12. So far as injury to Harsingh (PW 2) is concerned, it is attributed to accused Arjun. Said injury is also corroborated by medical evidence. 13. As regards accused Bheem, Reshambai (PW 1) and Harsingh (PW 2) have not attributed any role to this accused and have shown his presence on the spot. In such circumstances, mere presence of accused Bheem on the spot is not sufficient to hold him guilty for commission of offence either under section 302 or under section 307 with the aid of section 34 of Indian Penal Code. There is no evidence on record of sharing common intention with other accused persons in either committing the murder of the deceased or causing injuries dangerous to life to Harsingh (PW2). Hence, his impugned conviction and sentence for commission of the offence under sections 302/34 and 307/34 is liable to be set aside and is hereby set aside. He is acquitted of the offences levied against him. 14. As regards accused Arjun, no injuries to the deceased are attributed to him by the witnesses. Hence, his impugned conviction and sentence for commission of the offence under sections 302/34 and 307/34 is liable to be set aside and is hereby set aside. He is acquitted of the offences levied against him. 14. As regards accused Arjun, no injuries to the deceased are attributed to him by the witnesses. As per the prosecution case and the statements of the eye witnesses, he had caused injury in the stomach of Harsingh (PW 2) by means of an arrow. Said injury is corroborated by medical evidence and was found to be dangerous to life. As such, his conviction and sentence for commission of the offence under sections 307/34 and 302/34 of Indian Penal Code cannot be sustained and is hereby set aside and he is acquitted of the offence under section 302/34 of Indian Penal Code. Instead he is convicted under section 307 of Indian Penal Code simpliciter. Since this appellant is in custody from the date of impugned judgment, that is, 2-2-1999, thus, he has already undergone more than ten years sentence under section 307 of Indian Penal Code. Hence, he is directed to be released forthwith if not wanted in any other case. 15. So far as appellants accused Nelson and Shilash are concerned, they have caused injuries to the deceased on the head by means of lathis which has resulted into the death of the deceased. However, there is no evidence against these two accused showing that they did share common intention with accused Arjun in causing grievous injury to Harsingh (PW 2). Hence, their impugned conviction and sentence for commission of the offence under section 302 read with section 34 of Indian Penal Code does not call for any interference. However, their impugned conviction and sentence for commission of the offence under section 307 read with section 34 of Indian Penal Code deserves to be set aside. They are in jail. They shall remain there to serve out the impugned sentence awarded by the Sessions Court under section 302/34 of Indian Penal Code. 16. Resultantly, this appeal succeeds and is allowed insofar as appellant Bheem is concerned and insofar as remaining three accused, that is Nelson, Shilash and Arjun are concerned, it succeeds in part and is allowed to the extent indicated hereinabove.