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Madhya Pradesh High Court · body

2009 DIGILAW 1121 (MP)

SHIVNATH PRASAD JAISWAL v. STATE OF M. P.

2009-09-11

K.S.CHAUHAN

body2009
JUDGMENT : 1. This criminal appeal under section 374(2) of the Code of Criminal Procedure has been preferred by the appellants being aggrieved by the impugned judgment, finding and sentence dated 6-8-1999 passed by the First Additional Sessions Judge, Sidhi in ST No. 4/95 whereby the appellants have been convicted under section 331/34 of Indian Penal Code and sentenced to R.I. for 3 years with fine of Rs. 5000/- each, in default of payment of fine R.I. for one year each. 2. The prosecution case in short is that Shivnath Jaiswal (appellant) Forest Guard at Machmahua forest gave the intimation to police chowki Kusumi that he received information that certain persons are cutting the bamboos in the forest. He along with other forest officials and villagers went at the spot and found that 20-25 persons of village Samund and Chamari Dol were cutting the bamboos in Sanjay National Park, Machmahua. They tried to assault them. Thereafter ran away. Indar Shah was caught and was taken to forest chowki Kusumi for interrogation. For want of conveyance he could not go and stayed there. His condition became serious and died on 29-9-1994. On this information marg intimation No. 18/94 under section 174 of Criminal Procedure Code was registered and inquiry was made. During the course of inquiry Panchnama of dead body Ex.P-10 was prepared. His post-mortem was conducted by Dr. N. K. Jain (PW-2) and Dr. V. B. Singh. According to their opinion the cause of death was head and chest injury and rupture of right side heart. The mode of death was coma as well as shock. Death occurred within 24 to 36 hours. The nature of death was homicidal. The statements of Chain Singh, Jagannath and Brijbhan Singh were recorded. On the basis of findings of marg inquiry F.I.R. Ex.P-14 was registered under section 302/34 of Indian Penal Code against the appellants. Spot map was prepared. Blood stained and controlled soil was seized. The blood stained clothes of deceased were also seized. The documents relating to the forest offence registered against the deceased and other persons were seized from Shivnath Jaiswal. The seized articles were sent to F.S.L. Sagar from where the report received. After completing the investigation the charge-sheet was filed in the Court of J.M.F.C. Sidhi who committed the case to the Sessions Court for trial. 3. The documents relating to the forest offence registered against the deceased and other persons were seized from Shivnath Jaiswal. The seized articles were sent to F.S.L. Sagar from where the report received. After completing the investigation the charge-sheet was filed in the Court of J.M.F.C. Sidhi who committed the case to the Sessions Court for trial. 3. The accused persons were charged under section 302 or in the alternative under section 302/34 and 201 of Indian Penal Code. They abjured the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. The prosecution examined as many as 14 witnesses and placed documents Ex.P-1 to Ex.P-21 on record. The accused persons also examined 3 witnesses and placed documents Ex.D-1 to Ex.D-5 on record. After appreciating the evidence trial Court acquitted co-accused Suryalal Shukla from the charges levelled against him. These appellants were also acquitted under section 302 and 302/34 and 201 of Indian Penal Code but convicted under section 331/34 of Indian Penal Code and sentenced thereto as stated hereinabove in para No. 1 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeal has been preferred on the grounds mentioned in the memo of appeal. 4. Shri P. R. Bhave, learned Senior Counsel appearing on behalf of the appellants submitted that the Court below has not appreciated the evidence in proper perspective. There is no clinching evidence to establish that appellants gave beating to Indar Shah for extorting information regarding other persons who were engaged in cutting the bamboos in the reserved forest. There is no evidence regarding participation of the appellants in committing this crime. The evidence of Mst. Etwari (PW-1) the wife of deceased is that her husband fell down and hence the possibility of sustaining such injuries by fall cannot be ruled out. The circumstances are not so strong so as to connect them with this crime. The Court below has committed an illegality in finding them guilty. The finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. 5. On the contrary, Shri G. P. Singh, learned Dy. Government Advocate appearing on behalf of the respondent/State supported the impugned judgment finding and sentence mainly contending that the appellants caught the deceased and got extorted the information regarding the commission of forest offence. 5. On the contrary, Shri G. P. Singh, learned Dy. Government Advocate appearing on behalf of the respondent/State supported the impugned judgment finding and sentence mainly contending that the appellants caught the deceased and got extorted the information regarding the commission of forest offence. The dead body was recovered from the residential house of appellant K. P. Sharma. No any explanation has been adduced in this regard. The deceased was found sustaining grievous injuries. These circumstances are sufficient to connect the appellants with this offence. The Court below has rightly found them guilty hence does not call for any interference. 6. The main point for consideration in this appeal is that whether the trial Court has committed any illegality in convicting and sentencing the appellants under section 331/34 of Indian Penal Code. 7. Mst. Etwari (PW-1) is the wife of the Indar Shah Basor. She has deposed that her husband had gone to forest along with other persons to cut bamboo trees. Her evidence is supported by Ramprasad (PW-8), Dharmjeet (PW-9) and Ramsewak (PW-14) who had accompanied her husband. It is borne out from their evidence that forest officials and some villagers reached there when they were cutting the bamboos. They tried to run away but Indar Shah Basor was caught by them. According to Ramprasad (PW-8) they caused marpeet to Indar Shah. According to Ramsewak (PW-14) appellant K. P. Sharma caught Indar Shah Basor. Other appellants were also with him. K. P. Sharma was having gun with him. He threatened that if anybody comes towards that direction he will shoot him. Thereafter they carried Indar Shah Basor to forest chowki Kusumi and killed him. The evidence that Indar Shah Basor was caught by the appellants find support from the documents also. According to T.S. Gautam (PW-12) appellant Shivnath Jaiswal gave intimation regarding death of Indar Shah Basor on the basis of which marg No. 18/94 was registered on 29-9-1994. The inquiry of marg was conducted by R. K. Sharma (PW-13). Though appellant Shivnath Jaiswal has denied to give such intimation but his contention is falsified in the light of the documentary evidence Ex.P-19. This document support that these appellants had gone to the forest, caught Indar Shah Basor and brought at forest chowki Kusumi. The inquiry of marg was conducted by R. K. Sharma (PW-13). Though appellant Shivnath Jaiswal has denied to give such intimation but his contention is falsified in the light of the documentary evidence Ex.P-19. This document support that these appellants had gone to the forest, caught Indar Shah Basor and brought at forest chowki Kusumi. This fact further finds support from the statement of R. K. Sharma (PW-13) who has seized some documents from appellant Shivnath Jaiswal vide seizure memo Ex.P-12 relating to the forest offence. Ex-P/15A is the spot map of that case wherein it is mentioned that the appellants had gone to the forest. Some persons were cutting the bamboos. They tried to catch them but they tried to assault them. Indar Shah Basor was caught by them and was carried to forest chowki Kusumi. He confessed his guilt and disclosed the names of other co-accused persons. Panchnama was prepared which contains the thumb impression of deceased Indar Shah Basor and also of appellant K. P. Pandey. This document contains the signature of the witnesses. Shivnath Jaiswal counted the bamboos which were cut by those persons. They were found 329 in numbers. These bamboos were seized vide seizure memo Ex.P-17 and it also contains the signature of forest officers, witnesses and deceased Indar Shah Basor. Panchnama of damages Ex.P-16A was also prepared which contains the thumb impression of Indar Shah, signature of forest officers and also of the witnesses. Thereafter Abbal report POR No. 6747/05 dated 29-9-1994 was recorded vide Ex.P-14. 8. Thus it is evident that these appellants caught Indar Shah Basor, carried him to forest chowki Kusumi, extracted the information regarding the offence and other accused persons. Forest offence was registered against him and other 32 persons and there is no evidence that he was released thereafter. His dead body was found in a room of the government, residence of appellant K. P. Sharma, Deputy Ranger. R. K. Sharma (PW-13) prepared map Ex.P-13 and has given evidence in this regard. Heeralal Singh (PW-3) also prepared the spot map Ex.P-2 which also indicates that the dead body of deceased was found in the room of government residence of K. P. Sharma. Thus there is ample evidence that the appellants brought Indar Shah at Kusumi forest chowki, interrogated him and also extracted the information regarding the forest offence and the offenders. P.O.R. was registered against these persons. Thus there is ample evidence that the appellants brought Indar Shah at Kusumi forest chowki, interrogated him and also extracted the information regarding the forest offence and the offenders. P.O.R. was registered against these persons. Thereafter he was not released but his dead body was found in a room of government residential house of appellant K. P. Sharma. There were several injuries on the body of Indar Shah Basor as is evident from the evidence of R. K. Sharma (PW-13) who prepared the panchnama of dead body. Mst. Etwari (PW-1) wife of deceased also noticed the injuries on the dead body of her husband. After preparing the panchnama dead body was sent for post-mortem examination which was conducted by two doctors namely N. K. Jain and V. V. Singh. Dr. N. K. Jain (PW-2) has been examined by the prosecution who has given the evidence that on external examination of the deceased he found the following injuries on his person :- (i) Abrasion with contusion 3 in numbers over left forehead 4 x 2, 2 x 2, 2 x 2 cm dark bluish colour. (ii) Contusion two in numbers over right upper and middle chest 4 x 4 cm each, dark bluish colour. (iii) Abrasion over chest 4 in number measuring 2 x 2, 4 x 2, 2 x 2, 2 x 1 cm in size. (iv) Multiple contusions with abrasions over both knee present dark bluish colour. (v) Contusion over left scapular region 6 x 4 cm dark bluish coloured. (vi) Contusion over right scapular region 4 x 2 cm. dark coloured. On internal examination he found depressed comminuted fracture of parietal and occipital bone of skull. Contusion with laceration of brain at middle part of parietal bone extending upto occipital lobe. He also found rupture of right side heart. Clotted dark colour blood was present in it. According to their opinion the cause of death was head and chest injury, mode of death was coma as well as shock which occurred within 24 to 36 hours of duration. The death was homicidal in nature. He has given the evidence that head and chest injuries were sufficient to cause the death in the ordinary course of nature. He has denied that injury Nos. 1 and 3 may be caused by fall. However, he admitted that injury to knees may be caused by fall. 9. The death was homicidal in nature. He has given the evidence that head and chest injuries were sufficient to cause the death in the ordinary course of nature. He has denied that injury Nos. 1 and 3 may be caused by fall. However, he admitted that injury to knees may be caused by fall. 9. Thus it is evident that the injuries by which deceased died were dangerous to life and these injuries could not have been caused by fall, therefore, the contention of the learned counsel of the appellants is not acceptable that deceased sustained injuries by fall and on account of which he died. 10. In the aforesaid circumstances, it was obligatory on the part of the appellants to explain how Indar Shah Basor died. According to the marg intimation given by appellant Shivnath Jaiswal, Indar Shah Basor died on account of illness but no evidence has been adduced regarding his treatment. One witness Ballu Yadav (DW-3) has been examined. According to him Indar Shah Basor was taking medicine from Dr. Mishra but Dr. Mishra has not been examined to prove this fact, therefore, no reliance can be placed on the evidence of Ballu Yadav (DW-3). 11. The defence of the appellant K. P. Sharma is that on the day of incident he had gone to the office of Director, Sanjay National Park, Sidhi. Devendra Bahadur Singh (DW-1) and Bhaiyalal (DW-2) have been examined in this regard. Devendra Bahadur Singh (DW-1) has deposed that appellant K. P. Sharma came in office on 28-9-1994 at 11:00 a.m. and after taking his transfer order went away within five minutes and thereafter he did not meet him on 28-9-1994. According to him his signatures were obtained on the copy of the original transfer order Ex.D-3 and one certificate Ex.D-4 was issued by the Director. In Ex.D-4C it was mentioned that K. P. Sharma came in office on 29-9-1994. The question is that after taking transfer order at 11:00 am. from the office why he remained there on that day and also on 29-9-1994. It appears that these documents have been prepared afterwards to save the appellant K. P. Sharma. No reliance can be placed on such evidence and documents. On the contrary, it is found from the prosecution evidence that appellant K. P. Sharma was present at the time of incident. He was also having the gun in his hand. It appears that these documents have been prepared afterwards to save the appellant K. P. Sharma. No reliance can be placed on such evidence and documents. On the contrary, it is found from the prosecution evidence that appellant K. P. Sharma was present at the time of incident. He was also having the gun in his hand. He himself caught Indar Shah Basor. Thus the defence taken by appellants is not acceptable in the light of the prosecution evidence. 12. The defence of Shivnath Jaiswal is that he signed on the documents seized on the pressure of concerned S.H.O. and also on the oral instruction of K. P. Sharma, Deputy Ranger but his defence is not acceptable. The documents have been seized from his possession. 13. The defence of K. P. Pandey is of innocence and falsely implication but it is clearly established by evidence that he was present at the spot along with Deputy Ranger K. P. Sharma. He also signed some of the documents which were seized. There is no any enmity of police with this appellant hence there is no question to falsely implicate him. 14. Thus there is sufficient evidence to connect the appellants with this offence. The circumstances clearly point out the guilt of appellants, therefore, no infirmity, illegality, impropriety or perversity is found in the finding of the trial Court hence no interference is called for. Keeping in view the gravity of offence the sentence awarded by Court below is also not excessive hence does not excessive hence does not call for interference. The appeal is meritless and deserves to be dismissed. 15. Consequently, the appeal fails and is dismissed accordingly. The appellants are on bail. Their bail bonds are cancelled. They be directed to surrender before C.J.M. Sidhi on 14-10-2009 for serving out the remaining part of their sentence.