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Madhya Pradesh High Court · body

2010 DIGILAW 19 (MP)

Shriram S/o Bhav Singh Balai v. State Of M. P.

2010-01-06

S.K.SETH, S.L.KOCHAR

body2010
JUDGMENT : S. L. KOCHAR, J. The appellants have preferred this appeal against the impugned judgment dated 29-9-2000 passed in S.T. No. 68/2000 by learned Additional Sessions Judge, Dhar, District Dhar (M. P.), whereby convicted the appellants under section 148 of the Indian Penal Code (for short "the IPC"), sentenced to RI for two years with fine of Rs. 5,00/- to each; in default whereof they shall suffer additional SI for one month. The appellants have also been convicted under section 302/149 of "the Indian Penal Code", sentenced to RI for life with fine of Rs. 1,000/- to each; in default whereof they shall suffer additional SI for two months. Both the jail sentences of the appellants have been directed to run concurrently. 2. According to the prosecution case, on 17-12-1999 deceased Ramlal and his wife Dhapu Bai (PW-1) had gone to watch their crop in the field, at that time they found that all the appellants were digging canal on the embankment and they were taking earth to their field. Deceased Ramlal objected the act of the appellants, on which appellants told them that whatever they can do, they may do and while saying so, appellant Nathu Singh struck axe blow on head of deceased. Deceased ran up to some paces but encircled by the appellants and appellant Nathu Singh dealt axe blow on his hands and legs, whereas appellants Shriram, Dinesh and Prem Singh were having handle of pickaxe and assaulted the deceased. Appellants Dhuli Bai and Suraj Bai gave fist blows. Deceased sustained injuries on his head, both the legs and hands. PW-5 Radheshyam, son of deceased, after receiving information about quarrel reached in the field and his mother PW-1 Dhapu Bai told him about the incident. Ramlal died on the spot. Radheshyam lodged the report (Ex.P/8) in police outpost. On the basis of this report, Station House Officer Shri Mule (PW-10) registered First Information Report (Ex.P/21) in police station and commenced investigation. He prepared spot map (Ex.P/1) and inquest report of the dead body of deceased (Ex.P/2). Shri Mule also effected seizure of axe, one pair shoes, turban, blood stained and controlled earth through seizure memo Ex.P/9 and P/22 respectively. Dead body of Ramlal was sent for post-mortem examination and the same was performed by PW-6 Dr. Sanjay Sharma, who gave post-mortem report Ex.P/10. Shri Mule also effected seizure of axe, one pair shoes, turban, blood stained and controlled earth through seizure memo Ex.P/9 and P/22 respectively. Dead body of Ramlal was sent for post-mortem examination and the same was performed by PW-6 Dr. Sanjay Sharma, who gave post-mortem report Ex.P/10. Appellants were arrested and on their disclosure statements pickaxe and lathis were seized. All the seized articles were sent to Forensic Science Laboratory and its report is Ex.P/25. The investigating officer recorded the statements of the witnesses who were acquainted with the facts of the case and on completion of investigation, filed the charge-sheet against the appellants for commission of offence under section 302/149 of "the IPC". 3. Appellants refuted the charges and appellants No. 1, 2 and 3 (Shriram, Dinesh and Dhuli Bai) examined DW-1 Jagdish to establish their plea of alibi. The defence of appellant Nathu Singh and his wife Suraj Bai was that deceased picked up quarrel with Suraj Bai and torn her blouse, for which she lodged the report in the police station but police had not registered the case and concocted a false case against the appellants to save themselves from the crime committed by them against Suraj Bai. Learned trial Court after examining the prosecution and defence witnesses and hearing both the parties, convicted and sentenced the appellants as noted herein-above. 4. We have heard the learned counsel for the parties and also perused the entire record minutely. 5. Learned counsel for the appellants has submitted that, in fact, at the time of incident only appellant Nathu Singh and his wife Suraj Bai were present in the field and in the incident only appellant Nathu Singh assaulted the deceased, but the complainant party concocted a false case against all the relatives of the appellant Nathu Singh. According to learned counsel, only Nathu Singh would be liable for causing injuries to deceased and witnesses can be relied upon only against him. 6. On the other hand, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. It is culled out from the record that conviction of the appellants is based mainly on the testimony of three eyewitnesses PW-1 Dhapu Bai, PW-2 Bapu, PW-3 Govind and medical evidence of Dr. Sanjay Sharma. 8. On the other hand, learned counsel for the State has supported the impugned judgment and finding arrived at by the learned trial Court. 7. It is culled out from the record that conviction of the appellants is based mainly on the testimony of three eyewitnesses PW-1 Dhapu Bai, PW-2 Bapu, PW-3 Govind and medical evidence of Dr. Sanjay Sharma. 8. PW-1 Dhapu Bai has deposed that after noon at about 3:00 p.m. she had gone along with her husband deceased Ramlal to their field and saw that in the adjacent field appellants were present and digging embankment. The further say of this witness is that appellants were constructing canal and taking earth to their field, which was objected by them, upon which appellant Nathu Singh gave axe blow causing injury on head, thereafter Ramlal tried to escape but he was surrounded by all the appellants and all had assaulted him. In cross-examination paragraph-7, she has also stated that appellant Nathu Singh struck axe blow on both the legs of deceased and some blows were given on hands by blunt side of the axe. More or less, similar statements have been given by other two eyewitnesses also. 9. PW-6 Dr. Sanjay Sharma found, in all, 6 external injuries on the person of deceased Ramlal, out of which injury No. 1 was on left tempo parietal region and rest injuries were on both the legs and hands. On internal examination, he found fracture of tempo parietal region, tibia and fibula bones of both the legs, fracture of right radius and ulna bones as well as fracture of second and fourth metacarpal bones of left hand. The specific overt act attributed to appellant No. 4 Nathu Singh are duly corroborated by medical evidence. PW-1 Dhapu Bai has deposed that appellant Nathu Singh used axe from both sides. Dr. Sanjay Sharma (PW-6) has admitted in cross-examination that by axe lacerated wound could also be caused. Supreme Court in case of C.H. Madhusudana Reddy and others vs. State of A. P., 1994 Cri.L.J. 2203 has observed in paragraph-8 that "at any rate it cannot be concluded that axes which are generally used in the villages for cutting twigs and branches would be so sharp like a sword or a knife and when such weapons are used on the head, they are likely to cause lacerated injuries also". Same kind of observations have also been made by Supreme Court in case of Mukul Mahto vs. State of Jharkhand, 2008(15) SC 648. In the instant case, in view of ocular evidence and opinion of medical expert, it is clear that by axe injuries on the person of deceased could be caused and axe was used only by appellant Nathu Singh. 10. Now the second question for consideration is whether all the appellants would be liable for murder of deceased with the aid of section 149 of "the IPC"? For this purpose we have to see whether prosecution has fulfilled the necessary ingredients of sections 141, 142 and 146 of "the IPC". Supreme Court in case of Baladin and others vs. State of U. P., AIR 1956 SC 181 while discussing this issue, held as under :- "It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142, Indian Penal Code. If members of the family of the appellants and other residents of the village assembled, all such persons could not be condemned 'ipso facto' as being members of that unlawful assembly. It is necessary, therefore, for the prosecution to lead evidence pointing to the conclusion that all the appellants had done or been committing some overt act in prosecution of the common object of the unlawful assembly. The omnibus evidence in general terms to the effect that all these persons had many more were the miscreants and were armed with deadly weapons, like guns, spears, pharses, axes, lathis etc., naturally has to be very closely scrutinized in order to eliminate all chances of false or mistaken implication." [Also see : Chikkarange Gowda and others vs. State of Mysore, AIR 1956 SC 731 and Akbar Sheikh and others vs. State of West Bengal, 2009(3) SCC (Cri.) 431]. 11. In the light of this dicta, on visualization of the statements of the eyewitnesses that only against Nathu Singh specific overt acts have been attributed and against other appellants general and omnibus statements have been given. 11. In the light of this dicta, on visualization of the statements of the eyewitnesses that only against Nathu Singh specific overt acts have been attributed and against other appellants general and omnibus statements have been given. In our considered view, other appellants cannot be convicted with the aid of section 149 of "the IPC", because as per own saying by the prosecution; they were already present in their own field and performing work of making of canal, only thereafter deceased and his wife (PW-1) Dhapu Bai reached over there, therefore, appellants had not formed unlawful assembly whose common object was to commit murder of Ramlal and in prosecution of the said common object, they had assaulted the deceased. It is common phenomena in our country that along with the real culprit the close relatives of the deceased/victim are implicating innocent persons related to the actual accused, therefore, the heavy duty cast upon the Court to separate the gain from the chaff. In the instant case, it is clear that deceased was assaulted by appellant Nathu Singh and prosecution has failed to establish its case against other appellants. 12. In view of the above, this appeal is allowed in part. Conviction and sentence as passed by the learned trial Court against appellants No. 1, 2, 3, 5 and 6 (Shriram, Dinesh, Dhuli Bai, Suraj Bai and Prem Singh) are hereby set aside. They are on bail, their bail bonds and surety bonds stand discharged. Appellant No. 4 Nathu Singh is already in jail and serving the sentence.