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2011 DIGILAW 313 (CHH)

MANHARAN v. STATE OF C. G.

2011-09-09

R.N.CHANDRAKAR, T.P.SHARMA

body2011
JUDGMENT As per Hon'ble Shri R.N. Chandrakar, J. :- 1. The appellants have preferred this appeal under Section 374 (2) of the Code of Criminal Procedure against the judgment of conviction and order of sentence dated 11-8-2005 passed in Sessions Trial No.28/2004 whereby learned Additional Sessions Judge, Bemetara, District Durg, after holding the appellants guilty for committing murder of Murari and also causing injuries to Dwarika, Baisakhin Bai, Shankar and Dhaneswari, has convicted them under Sections 302, 326 & 324 read with Section 34 of the IPC and sentenced them to undergo imprisonment for life and fine of Rs.1000/- each, in default of payment of fine to further undergo RI for 3 months, RI for ten years and fine of Rs. 1000/- each, in default of payment of fine to further undergo RI for 3 months and RI for two years respectively. All the sentences are directed to run concurrently. 2. The prosecution started on the basis of First Information Report (Ex.P/1) lodged by Dwarika (PW/1) in Police Station Khamharia on 10-12-2003 at 4.00 p.m., wherein it was alleged that when the complainant party was removing the earth put by the accused persons on the way being used by the complainant party to go to their field, the accused/appellants Manharan and Punaram attacked the deceased and the complainant party with axe whereas accused/appellants Kisun and Bhukhau attacked Murari with clubs as a result of which deceased Murari sustained six injuries and his skull bone was fractured. In the same incident complainants Dwarika (PW/1), Dhaneshwari .Bai (PW/2) wife of the deceased, Baisakhin (PW/3) and PW/5 Shankar also sustained injuries. All the injured were sent for medical examination to Government Hospital, Khamharia where Doctor Sarita Minj (PW/16) examined Shankar (PW/5) vide Ex.P/35, Baisakhin Bai (PW/3) vide Ex.P/36, Dwarika (PW/1) vide Ex.P/37 and Murari (since deceased) vide Ex.P/38. Thereafter, the injured were referred to District Hospital, Durg from where injured Murari was shifted to Sector 9 Hospital at Bhilainagar for further treatment. Injured Murari was examined by Dr. Thereafter, the injured were referred to District Hospital, Durg from where injured Murari was shifted to Sector 9 Hospital at Bhilainagar for further treatment. Injured Murari was examined by Dr. Sarita Minj (PW/16) vide Ex.P/38 who found the injuries; i) lacerated wound 6cm x 1.5 cm x 1.5 cm at right parietal bone obliquely; ii) lacerated wound 2 cm x 1 cm x 1 cm bone deep 1 cm below injury No. 1; iii) contusion 8 cm x 5cm over right zygometic bone; iv) lacerated wound 1 cm x 1 cm x 1 cm above injury No.3 and v) abrasion over left maxillary bone 3 cm x 2 cm. During the course of treatment injured Murari died and intimation thereof was sent to concerned Police Station. Initially the case was registered under Sections 294 and 307 read with Section 34 of the IPC on the basis of FIR (Ex.P/1) and subsequently after the death of Murari, offence under Section 302 read with Section 34 of the IPC was added. Dead body of deceased Murari was sent for autopsy to Government Hospital, Durg where Doctor S.P. Kesharwani (PW/15) conducted autopsy vide Ex. P/31 and found the external injuries; i) there was defuse swelling over right half of the face having contusion of bluish colour over right upper and lower lids; ii) there was clot and bleeding from the right ear; iii) stitched wound having seven stitches in the size of 5 cm over right temporal region of skull; iv) stitched wound over right temporal region of face having two stitches in the size of 2 cm; all the injuries were ante-mortem in nature and in internal examination he found the injuries; i) linear fracture at middle of skull from right parietal region to left parietal region; ii) huge blood clot present throughout beneath the skull; iii) diffused extradural, subdural and subarachmid hematoma iv) diffused and huge intra cerebral haematoma and v) laceration of brain over right hemisphere. The Doctor opined that mode of death was coma and cause of death was ante-mortem head injuries. 3. On the basis of Ex.P/26, merg 0/03 was registered in Police Station Bhilainagar vide Ex.P/27 and same was forwarded to the concerned Police Station Khamharia where original merg intimation was registered vide Ex.P/28. Investigating Officer (PW/17) prepared spot map vide Ex.P/3 and Patwari Shankar Prasad Tiwari (PW/12) also prepared spot map vide Ex.P/4. 3. On the basis of Ex.P/26, merg 0/03 was registered in Police Station Bhilainagar vide Ex.P/27 and same was forwarded to the concerned Police Station Khamharia where original merg intimation was registered vide Ex.P/28. Investigating Officer (PW/17) prepared spot map vide Ex.P/3 and Patwari Shankar Prasad Tiwari (PW/12) also prepared spot map vide Ex.P/4. Blood stained earth and plain earth were seized from the spot vide EX.P/2. During course of investigation, accused/appellants were taken into custody who made' discloser statements on the basis of which one blood stained axe was seized from accused/appellant Punaram vide Ex.P/5, another blood stained axe was seized from accused/appellant Manharan vide Ex.P/14, one lathi was seized from accused/appellant Kisun vide Ex.PIl5 and one lathi was seized from accused/appellant Bhukhau vide EX.P/10. Wearing apparels of Baisakhin Bai were seized vide Ex.P/11, wearing apparels of Dwarika were seized vide Ex.P/12, wearing apparels of Shankar were seized vide Ex.P/13. Seized articles were sent for chemical examination to FSL, Raipur and report thereof has been received vide Ex.P/51 wherein it is stated that presence of blood was found on all the seized articles except the plain earth. 4. Injured Drarika (PW/1) was examined by Doctor Sarita Minj (PW/16) vide Ex.P/37 who found the injuries; i) lacerated wound 1 cm x .5 cm x. 2 cm at base of right hand above index-finger; ii) contusion 10 cm x 8 cm over right dorsal region; iii) lacerated wound 3 cm x 1 cm x .5 cm over left ear at pinna and iv) contusion 3 cm x 3 cm over posterior aspect of left pinna. Injured Baisakhin Bai (PW/3) was examined by Dr. Sarita Minj (PWI 16) vide Ex.P/36 who found lacerated wound 8 cm x 2 cm x 1.5 cm bone deep at left parietal region. Injured Shankar (PW/5) was also examined by Dr. Sarita Minj (PW /16) vide Ex.P/35 who found the injuries; i) lacerated wound 7 cm x 2 cm x 1.5 cm bone deep at right parietal region and ii) lacerated wound 5 cm x 1.5 cm x 1.5 cm bone deep at left parietal region 1 cm. Dr. S.K. Mandge (PW/11) also examined injured Dwarika (PW/1) and the seized axe vide Ex.P/18. 5. Dr. S.K. Mandge (PW/11) also examined injured Dwarika (PW/1) and the seized axe vide Ex.P/18. 5. Statements of witnesses were recorded under Section 161 of the Cr.P.C. After completion of investigation, charge sheet was filed against the appellants in the Court of Judicial Magistrate First Class, Bemetara, who in turn committed the case to the Court of Sessions Judge Durg. Learned Additional Sessions Judge, Bemetara received the case on transfer for trial, who framed charges under Sections 302/34, 326 and 324 of the Indian Penal Code against the appellants who abjured the guilt. 6. In order to prove the guilt of the appellants, prosecution examined as many as eighteen witnesses. Accused persons were examined under Section 313 of the Code of Criminal Procedure, where they denied the circumstances appearing against them and pleaded innocence and false implication. The appellants also examined Punaram (DW/1) and Jageshwar Patel (DW/2). 7. After affording an opportunity of hearing to the parties, the learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. 8. We have heard learned counsel for the parties and perused the record of the trial court as also the impugned judgment. 9. Mr. Neeraj Mehta, learned counsel appearing for the appellants vehemently argued that conviction is based on the evidence of injured witnesses PW/1 Dwarika, PW/2 Dhaneshwari, PW/3 Baisakhin, PW/5 Shankar, evidence of independent witness Chaitram (PW/4) and evidence of Dr. S.P. Kesharwani (PW/15), Doctor Smt. Sarita Minj (PW/16) and Doctor S.K. Mangde (PW/11). The evidence of the aforesaid witnesses does not inspire confidence and trustworthy. He further submits that there was no premeditation, preparation and intention to cause death of deceased and cause injuries to victims. The incident took place all of a sudden, on sudden provocation, spur of moment and heat of passion, therefore, no case was made out under Section 302 of the IPC. The evidence adduced on behalf of the prosecution is not sufficient for drawing inference that the present appellants have caused homicidal death of deceased Murari with intent to cause his death. There was free-fight between the parties in which accused/appellant No.4 Punaram also received injury on the head, therefore, the act attributed to the appellants does not travel beyond under Section 304 Part II of the IPC. In support of his arguments, learned counsel for the appellants has placed reliance in the matters of Shakti Dan Vs. There was free-fight between the parties in which accused/appellant No.4 Punaram also received injury on the head, therefore, the act attributed to the appellants does not travel beyond under Section 304 Part II of the IPC. In support of his arguments, learned counsel for the appellants has placed reliance in the matters of Shakti Dan Vs. State of Rajasthan1 , S. Velayudhan Vs. Krishnan2, State of Punjab Vs. Rajinder Singh3 and Naimuddin Vs. State of West Bengal4. 10. Per contra Ms. Madhunisha Singh, learned Panel Lawyer appearing on behalf of the State supporting the judgment impugned submitted that conviction of the appellants is based on the evidence of injured witnesses, eye-witness Chaitram (PW/4), the evidence of Doctors S.P. Kesharwani (PW/l5), Smt. Sarita Minj (PW/16) and S.K. Mangde (PW/ 11) and their evidence inspires confidence and trustworthy. The prosecution has proved its case beyond all reasonable doubt and the evidence adduced on behalf of the prosecution is sufficient for drawing inference that the present appellants have caused homicidal death of Murari and also caused injuries to the victims. After appreciating the evidence available on record, the court below has rightly convicted and sentenced the appellant as aforementioned. 11. In order to appreciate the arguments advanced by learned counsel' for the parties, we have examined the evidence adduced on behalf of the prosecution. 12. In the present case, homicidal death of the deceased Murari is not in dispute. Even otherwise, it is also established by the evidence of injured witnesses PW11 Dwarika, PW/2 Dhaneshwari, wife of the deceased, PW/3 Baisakhin and PW/5 Shankar, the evidence of eye-witness Chaitram (PW/4) and also the evidence of Doctors S.P. Keshwarwani (PW/15), Smt. Sarita Minj (PW/16) and S.K. Mangde (PW/11) and autopsy report (Ex.P /31) that the death of Murari was homicidal in nature. 13. As regards complicity of the appellants is concerned, conviction is based on the evidence of PW/1 Dwarika, PW/2 Dhaneshwari, wife of the deceased, PW/3 Baisakhin, PW/5 Shankar and the evidence of eye-witness Chaitram (PW/4). 14. On a close scrutiny the evidence of the aforesaid injured witnesses, it is found that the witnesses have not only named the appellants but also enumerated the specific role played by them in the incident. 14. On a close scrutiny the evidence of the aforesaid injured witnesses, it is found that the witnesses have not only named the appellants but also enumerated the specific role played by them in the incident. The evidence of the aforesaid injured witnesses is that on the date of incident when they were removing the earth put by the accused/appellants on the way being used by the complainant party to go to their field at 'Ghoghra Khar', all the accused/ appellants being armed with axe and lathis came there and after assaulting them, fled away from the place of occurrence. Punaram and Manharan were having axes and Kisun and Bhukau were having lathis. All the injured witnesses made the same statement and corroborated each other. They were cross-examined at length, but nothing could be elicited to discredit their testimonies. 15. Chaitram (PW/4) corroborating the testimonies of the aforesaid witnesses stated that he saw the incident and brought water from well for the injured persons. He sprinkled water over the face of Murari, Shankar, Dhaneshwari but they were unconscious and thereafter they were taken to Govt. Hospital by the villagers. He was also cross-examined at length but remained consistent to his statement. It is pertinent to mention here that in his cross-examination this witness stated that the disputed way (land) was in possession of Shankar (PW/5). He denied the suggestion that the victims/complainants were aggressors and committed marpit with Punaram due to which he sustained injury. 16. On reappraisal of the evidence available on record it is crystal clear that one person died and four persons became injured in the incident. The evidence in this regard is well corroborated by the medical evidence as well as the ocular evidence. 17. So far as the plea taken by the appellants that the complainant's party/victims were aggressors and except Punaram the other appellants were not present on the spot during the incident; is concerned, one of the appellants Punaram examined himself as defence witness and stated that at the time of incident he was alone on the spot and when he objected the complainants to remove earth put by him on the way and offered them to take the matter to the head of the villagers. This proposal was supported by Baisakhin Bai whereupon Shanker became furious and assaulted Baisakhin Bai with club. Thereafter, Shanker asked his companions to surround and kill him. This proposal was supported by Baisakhin Bai whereupon Shanker became furious and assaulted Baisakhin Bai with club. Thereafter, Shanker asked his companions to surround and kill him. In, the process, Shanker, Murari and others got injured. Thereafter, he was assaulted by Shanker, Dwarika, Chaitram and he became unconscious. When he regained consciousness, he found himself in the District Hospital, Durg. In the cross -examination he admitted to put the earth on the way one day prior to the incident. The other defence witness Jageshwar Patel (DW/2) supported the plea of alibi taken by the other appellants stating that except Punaram, the other appellants Manharan, Kisun and Bhukau were harvesting paddy near his field and returned from there in the evening at about 4 pm. On hearing about the incident when he proceeded to the spot appellants Manharan and Kisun also had already gone to the spot. On due consideration of the evidence adduced by the appellants in their defence and the plea taken by them, it does not appear to be reliable and trustworthy as the complainants sustained multiple injuries of axes and lathis and one of the injured namely Murari died during the course of treatment which was not possible for a single person to assault the five persons and cause multiple injuries. That apart, the appellants lodged the FIR (Ex.D/8C) after 4 hours of lodging the FIR by the complainants and the explanation offered by the appellants that the complainants got injured by themselves, is not sustainable as it is proved by the evidence that the appellants were armed with axe and lathis which is further corroborated by the FSL report (Ex.P/51-C) that blood was found on all the articles seized from the appellants. In the light of the evidence on record and the injuries sustained by the complainants it cannot be held that the complainants were aggressor and the other appellants except one Punaram, were not participated in the incident. 18. So far as non-explanation of the injury sustained by one of the appellants Punaram is concerned, admittedly there was a counter case against the complainants. The dispute was relating to passage of land which was in possession of the complainants. In view of the aforesaid facts, it appears that the appellants being encroachers to the land in possession of the complainants/victims, they were the aggressors. The dispute was relating to passage of land which was in possession of the complainants. In view of the aforesaid facts, it appears that the appellants being encroachers to the land in possession of the complainants/victims, they were the aggressors. Further, in para 4 of the impugned judgment it is mentioned that there was a counter case pertaining to the incident registered as ST.No.28/2004 against the complainant party which resulted into acquittal of the complainants as mentioned in para 2 of the memo of appeal and is further evident from the order dated 2-1-2006 passed by this court, while considering the application for suspension of sentence filed by the appellants. Thus, the facts and circumstances of the counter case does not require for further consideration in deciding this appeal. 19. As regard question of intention is concerned, intention can be gathered from use of weapon of offence, affect on the part of the body and like other circumstances. On analysis of the entire evidence of the injured witnesses namely PW/1 Dwarika, PW/2 Dhaneshwari Bai, PW/3 Baisakhin, PW/5 Shankar and eye-witness PW /4 Chaitram, it is abundantly clear that all the appellants were armed with axe and lathis and caused multiple injuries on the vital parts of deceased Murari and when Dhaneshwari, wife of deceased tried to save her husband she was also assaulted. Not only this, the other persons Dwarika, Baisakhin and Shankar were also badly assaulted when they intervened the matter. Thus, it cannot be held that the appellants did not assault the deceased Murari and other injured persons with intent to cause death of Murari and further, it cannot be held that the incident took place in a spur of moment on sudden provocation and in a heat of passion. In order to obstruct the passage of the complainant party, the accused persons attacked the deceased and when the injured witnesses tried to intervene they were also assaulted by them with the deadly weapons they were carrying. Thus, it is clear that the accused appellants being armed with deadly weapons like axe and lathis came to the place of occurrence and caused injuries with intent to cause death of Murari and also caused injuries to victims who intervened the incident and they were aggressors as discussed above. Thus, it is clear that the accused appellants being armed with deadly weapons like axe and lathis came to the place of occurrence and caused injuries with intent to cause death of Murari and also caused injuries to victims who intervened the incident and they were aggressors as discussed above. This shows their grave intention of causing homicidal death of deceased and even they were not entitled for the benefit of exception as provided under Section 97 of the IPC instead the same was available to the complainants/victims. The evidence of the aforesaid witnesses inspires confidence and trustworthy. The evidence of the injured witnesses PW/1 Dwarika, PW/ 2) Dhaneshwari, PW/3 Baisakhin and PW/5 Shankar is well corroborated by the evidence of eye-witness PW/4 Chaitram and the medical evidence. 20. Minute scrutiny of the entire evidence available on record goes to show that the prosecution has proved its case beyond all reasonable doubt against the appellants and the same is sufficient for drawing a definite conclusion that the present appellants have committed homicidal death of the deceased Murari with intent to cause his death and also caused injuries to the victims. Thus, from the evidence of these witnesses, we are of the opinion that the trial court has rightly convicted the appellants under Sections 302, 326 & 324 read with Section 34 of the IPC and the case laws cited by learned counsel for the appellants are distinct from the facts and circumstances of the present case. 21. On a close scrutiny of the entire evidence available on record and considering all the aspects of the matter, we do not find any illegality or infirmity in the impugned judgment. Consequently, the appeal being devoid of merit is liable to be dismissed and is hereby dismissed. Appeal Dismissed.