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Madhya Pradesh High Court · body

2009 DIGILAW 605 (MP)

RAJJU v. STATE OF M P

2009-05-06

R.S.GARG, U.C.MAHESHWARI

body2009
Judgment ( 1. ) CRIMINAL Appeal No. 2150/2008 has been filed by Rajju s/o Chetram, Chhittu alias Chetram s/o Pakkad Singaraha and Sundarlal alias Badariya s/o Mungal Singaraha, while criminal Appeal No. 2158/2008 has been filed by Ravi Kumar s/o Kallu Sigaraha and Dinesh Kumar alias Jugdu s/o Kallu being aggrieved by the judgment dated 6. 9. 2008 passed by learned Sessions Judge, Satna in Sessions Trial No. 35/2007 convicting the appellants under Section 148, 452 and 302/149 i. P. C. sentencing them to undergo R. I for three years and pay fine of Rs. 500/- under Section 148 I. P. C. , to undergo R. I. for three years and pay fine of Rs. 500/- for offence punishable under Section 452 I. P. C and to undergo R. I for life and pay fine of Rs. 500/- for offence punishable under Section 149/302 I. P. C. , in default of payment of fine of Rs. 500/- to undergo further R. I for six months and in default of payment of fine of Rs. 1000/- to further undergo R. I for one year, all the jail sentences to run concurrently. ( 2. ) THE prosecution case in brief is that P. W. 4 Smt. Keshkali had witnessed the incident and on an information when the police reached the spot she reported the matter to police, the said report was registered as Dehati Nalish (Ex. P/5 ). The police found that Buddha alias Collector had died on the spot. After receiving the report the body was sent for the postmortem, certain panchanamas were prepared and certain articles were also seized from the spot. Statements of the witnesses were recorded and, thereafter the charge sheet was filed in the competent court. ( 3. ) AS the accused persons abjured the guilt, they were subjected to trial and were convicted and sentenced as referred to above. ( 4. Statements of the witnesses were recorded and, thereafter the charge sheet was filed in the competent court. ( 3. ) AS the accused persons abjured the guilt, they were subjected to trial and were convicted and sentenced as referred to above. ( 4. ) SHRI Datt, learned Senior Counsel and Shri D. N. Shukla, learned counsel for the respective appellants after taking us through the statements of P. W. 4 Keshkali, P. W. 5 makaradhwaj, P. W. 6 Chiraiyabai and P. W. 7 Rekha submitted that these persons could not witness the incident because the incident had taken place in the house of the deceased, some of the witnesses reached the spot after the incident was over and chiraiyabai could not witness the incident being an old woman of 90 years. It is submitted that the prosecution witnesses are unreliable. ( 5. ) IT is in the alternative submitted that the prosecution case in the beginning was that deceased Buddha alias collector caught hold of the hand of wife of Rajju, a day or two before the date of the incident, the said action on the part of the deceased had enraged or provoked Rajju and others, therefore, assuming everything is proved against the interest of the accused then too it would only appear that to teach a lesson to the deceased and chastise him the deceased was beaten therefore, also each of the accused cannot be convicted under Section 302/149 I. P. C. For accused Badariya alias sundarlal it was submitted that as injuries by hard and blunt object were not found on the person of the deceased at least sundarlal alias Badariya is entitled to benefit of doubt and deserves to be acquitted. ( 6. ) SHRI Modh, learned Deputy Advocate General, for the state on the other hand submitted that assuming the defence of the accused persons that deceased Buddha alias Collector caught hold of the hand of Rajjus wife then it would stand proved that all the accused persons had made up their mind, they had a common object and all of them armed with deadly weapons/stick came to the spot, opened the attack caused injuries to the deceased therefore in such a situation it cannot be said that the incident was a result of grave and sudden provocation or the accused persons only wanted to teach a lesson to the deceased. ( 7. ( 7. ) IT was also submitted that there was no cross examination on the point that Keshkali, Makaradhwaj, chiraiyabai or Rekha could not witness the incident. It is submitted that on call of one or the other if the other witnesses reached and had seen the incident then simply because they reached the spot a little later would not make their version unreliable. It is also submitted that from the conduct of each of the accused it would clearly appear that after forming a common object all the five accused armed with the weapon came to the house of Buddha alias Collector, opened an attack accused Sunderlal came with the other accused persons, stayed on the spot and after arrival of the witnesses fled away from the spot along with the other accused persons. It is submitted that the manner in which the accused persons conducted themselves at the time of the incident, it would clearly appear that each of them was a member of unlawful assembly which had a common object of killing the deceased. He submits that there is no scope for interference. ( 8. ) WE have heard parties at length and have gone through the records. ( 9. ) P. W. 4 Keshkali is the maternal aunt of the deceased. According to her when she was at her home, she saw accused badariya, Chittu, Rajju, Jugdu and Ravi were beating her nephew in his house. On her alarms Ramkali, Chotkaiya, her elder brother-in-law and her elder sister-in-law came to the spot. According to her all the five were armed with weapons. However, she said that she did not know the names of the weapons with which the accused persons were armed. She also admitted that she had lodged the Dehati Nalish (Ex. P/5 ). The suggestion given in the cross examination that Chittu alias Chetram was not available on the spot was denied by her. According to her there was no dispute between the deceased and the assailants. She was confronted with her case diary statement Ex. D/1 but however, the portions a to a of Ex. D/1 do not help and support the case and cause of the accused persons. In paragraph 6 it is admitted by her that on her alarm Makaradhwaj, Ramkali, Chotkaiya and Rekha came on the spot. She was confronted with her case diary statement Ex. D/1 but however, the portions a to a of Ex. D/1 do not help and support the case and cause of the accused persons. In paragraph 6 it is admitted by her that on her alarm Makaradhwaj, Ramkali, Chotkaiya and Rekha came on the spot. On basis of this statement it is said the other four could not see the incident. It is common knowledge that when somebody raises an alarm and the others approach the spot then the person who has raised the alarm can only say that what he has done or seen. Such a witness would not be in a position to say that the persons who arrived on the spot could or could not see the incident. In cross-examination paragraph 7 certain suggestions were given to her but she denied the same. After going through her statements, we are unable to hold that she is not a witness of truth. It clearly appears that she had witnessed the entire incident. ( 10. ) P. W. 5 Makaradhwaj had stated that when he was just to take his food, he heard certain alarms, he went to the spot and on his arrival the accused persons left the spot. According to him the accused persons were five in number. He denied the suggestion that Chittu alias Chetram was not present in the village. He also admitted in the cross examination that chiraiyabai (P. W. 6) is his mother. In his cross-examination unfortunately not even a single question has been put to discredit his testimony. ( 11. ) P. W. 6 Chiraiyabai had stated before the Court that the accused persons entered in the house of the deceased, she started raising alarm, on that one woman known as mohatwali (P. W. 7 Rekha) came. Her evidence was condemned on the ground that she being 90 years of age could not witness the incident however, no suggestion has been given to her that she suffers with a weak eye sight or she could not witness the incident. In her cross-examination also nothing important could be brought out to discredit her testimony. ( 12. Her evidence was condemned on the ground that she being 90 years of age could not witness the incident however, no suggestion has been given to her that she suffers with a weak eye sight or she could not witness the incident. In her cross-examination also nothing important could be brought out to discredit her testimony. ( 12. ) P. W. 7 Rekha alias Mohatwali clearly stated in the examination-in-chief that after hearing the alarm, she went to the house of Collector alias Buddha, the deceased, and she witnessed that the accused persons were beating the deceased. In her cross-examination except bringing certain immaterial contradictions nothing important could be brought on record. ( 13. ) FROM the statements of these witnesses it would clearly appear that all the five accused came armed, some of them were armed with sharp cutting weapons and one of them sunderlal was armed with a stick/lathi. From the statements of these witnesses it would also appear that all the accused persons came together, stayed together and on raising of the alarm and arrival of the witnesses fled together. ( 14. ) FROM the statement of Dr. R. S. Gautam (P. W. 15) it would appear that the deceased had as many as 12 injuries on his person (injury no. 3 in fact is a group of two injuries ). As many as four injuries were on the left side of the chest, injuries were seen in the sternum, there were other injuries on the right side of the chest, scapular region, on the back of the neck, parietal region, face and angle of mandible. On basis of these injuries it can not be held that such grievous and fatal injuries were caused only to teach a lesson to the deceased or to chastise him. All the injuries are incised wounds and some of the injuries had entered up to the intracostal region, lungs were cut and chest cavity were found full of blood. If such were the injuries then by no stretch of imagination it can be argued that the accused persons only wanted to chastise the deceased. ( 15. ) SO far as Sunderlal alias Badariya is concerned, learned counsel for the appellant has placed his strong reliance upon two judgments of the Supreme Court in the matter Jadu Yadav Vs. State of Bihar AIR 1994 SC 957 and Anvaruddin Vs. ( 15. ) SO far as Sunderlal alias Badariya is concerned, learned counsel for the appellant has placed his strong reliance upon two judgments of the Supreme Court in the matter Jadu Yadav Vs. State of Bihar AIR 1994 SC 957 and Anvaruddin Vs. Shakoor and others AIR 1990 SC 1242 . ( 16. ) IN the matter of Anvaruddin (supra) as many as four appeals were filed by relation of the deceased and the State of u. P. The High Court had acquitted all the accused persons and in an appeal against acquittal the Court found that some benefit could be given to the accused Alam and Wasla because the witnesses did not speak against them. The Supreme court in the said matter found that there was no scope for interference because the view taken by the High Court was justified. In the matter of Jadu Yadav (supra) the Court found that if a specific act is not attributed to one of the accused then the benefit of doubt can be given to him. In the present matter all the witnesses have said that accused sunderlal alias Badariya came armed with the other four accused who were armed with sharp cutting weapons. All the five opened attack on the deceased, all the five stayed together and on arrival of all the witnesses all five accused fled together as the birds of the same flock. If such is the evidence then in our considered opinion it would not be possible to hold that accused Sunderlal alias Badariya did not share the common object. ( 17. ) FOR the reasons stated aforesaid, we are unable to hold that there is any scope for interference in either of the appeals. Both the appeals are dismissed.