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2012 DIGILAW 52 (CHH)

DUKALU v. STATE OF M. P.

2012-02-07

RAJEEV GUPTA, SUNIL KUMAR SINHA

body2012
JUDGMENT As per Hon'ble Shri Sunil Kumar Sinha, J. 1. This appeal is directed against the judgment dated 10.10.1994 passed in S.T. No.119/88 by the Sixth Additional Session Judge, Durg. By the impugned judgment, the appellants have been convicted under Section 302/34 IPC and sentenced to undergo imprisonment for life. 2. The facts, briefly stated, are as under: In all, seventeen accused persons were tried for the offences punishable under Sections 147, 148 & 302/149 IPC. The allegations are that on 07.03.1988 at about 17:00 hours, the accused persons formed an unlawful assembly, pm1icipated in rioting with deadly weapons and in furtherance of the common object of the said assembly, committed murder of deceased Bhoklu. Out of seventeen accused persons, Lallu (A-5) died during pendency of the trial. Thirteen of them were acquitted and three of them i.e. the appellants herein were convicted and sentenced as above. The case of the prosecution is that on the fateful day, the deceased had gone to a nearby market situated in village Damapur. The appellants and accused - Lallu had also gone to the market. The allegations are that when the deceased was returning to his village, on the way, the appellants and other accused persons, who were hiding in a nearby Medh, attacked over the deceased with Farsa and Lathi, who received multiple serious injuries and succumbed to those injuries. The incident was witnessed by Ghasiya (PW-l), Shivkumar (PW-2), Santram (PW-12) and Latel (not examined). On the report of Ghasiya (PW-1), Dehatinalisi (Ex.P/1) was recorded, on which, a First Information Report (F.I.R.) Ex.P/1-A was registered. In Dehatinalisi, Ghasia (PW-1) took the names of all the accused persons. The learned Session Judge held vide para 34 of the impugned judgment that the above eye-witnesses were partly reliable. In fact, their evidence was held to be reliable for the appellants herein and accused- Lallu only. On their evidence, the learned Session Judge found that it was not a case where an unlawful assembly was formed and the accused persons participated in rioting with deadly weapons and the deceased was murdered in furtherance of the common object of the unlawful assembly. Therefore, the appellants were convicted as above on their individual acts held to be proved, and the other accused persons were acquitted of the charges framed against them. 3. Mr. Therefore, the appellants were convicted as above on their individual acts held to be proved, and the other accused persons were acquitted of the charges framed against them. 3. Mr. D.N. Prajapati, learned counsel appearing on behalf of the appellants, argued that Ghasiya (PW-1),Shivkumar (PW-2) and Santram (PW-12) were held to be partly reliable by the Session Court in para 20 of the judgment. The learned Session Judge has held their evidence to be doubtful on certain points. The evidence of above witnesses was not corroborated by the FIR nor by the medical evidence. Even after all this, the appellants have been convicted on the testimonies of these witnesses, therefore, the conviction cannot be sustained. 4. On the other hand, Mr J.A. Lohani, learned Panel Lawyer appearing on behalf of the State, opposed these arguments and supported the judgment passed by the Session Court. 5. We have heard learned counsel for the parties at length and have also perused the records of the Session Case. 6. Ghasiya (PW-1) deposed that on the fateful day, at about 3:00 p.m., he was returning from the market along with Shivkumar (PW-2) and Santram (PW-12). Latel (not examined) was also accompanying them. Bhoklu (deceased), Dukalu, Lakhan, Shivprasad (appellants herein) and accused-Lallu (dead) were also returning from the market and were at a short distance from them. According to Ghasiya (PW-1), they were behind the group of the accused persons and the deceased. As soon as the group of the above accused persons reached near the field of Ramkhilawan, accused Lallu shouted to kill the deceased, on which, the other accused persons, who were hiding in a nearby Medh, came out and all of them attacked over the deceased. He very specifically mentioned that accused Ramsingh, Rajju, Dharam and Latel were holding tabbal and the other accused persons were holding lathi. He admitted to lodge the Dehatinalisi (Ex.P/1). 7. Shivkumar (PW-2) also deposed in similar fashion. He deposed that when the accused persons attacked over the deceased, accused Rajju was holding farsa, accused Ramsingh, Ballu and Latel were holding tabbal and rest of the accused persons were holding lathi. However, he later on deposed that accused Lallu (dead), Dukalu, Lakhan and Shivprasad (appellants herein) were holding tabbal. 7. Shivkumar (PW-2) also deposed in similar fashion. He deposed that when the accused persons attacked over the deceased, accused Rajju was holding farsa, accused Ramsingh, Ballu and Latel were holding tabbal and rest of the accused persons were holding lathi. However, he later on deposed that accused Lallu (dead), Dukalu, Lakhan and Shivprasad (appellants herein) were holding tabbal. The fact that the appellants were holding tabbal is omission in his case diary statement (Ex.D/1) recorded under Section 161 Cr.P.C. When he was faced with his case diary statement for the above omission in para 53 of his cross-examination, he deposed that he stated to the Police that the appellants and Lallu were holding tabbal and they assaulted the deceased by tabbal and if these facts are missing in his case diary statement, he cannot tell reasons for the same. 8. Santram (PW-12) deposed that Dukalu, Shivprasad and Lakhan (appellants herein) and accused Lallu (dead), Latel, Ramsingh, Rajju, Dharam @ Ballu were holding tabbal at the time of the incident. In cross-examination, he was confronted with his case diary statement-Ex.D/4 on many points. In fact, in his case diary statement, he has stated that accused Ramsingh, Latel, Rajju and Ballu were holding tabbal and other accused persons, including the appellants, were holding lathi. 9. If we look into Dehatinalisi (Ex.P/1), which was promptly lodged by Ghasiya (PW-1), it does not contain that the appellants were holding tabbal at the time of the incident. Dehatinalisi is in quite detail and almost all the relevant facts have been mentioned in Dehatinalisi. Ghasiya (PW-1) has mentioned in Dehatinalisi as to how the accused persons attacked over the deceased and who was holding which weapon at the time of the incident. In Dehatinalisi, he has clearly mentioned that Ramsingh, Latel, Rajju @ Shersingh and Ballu @ Dharam were holding tabbal and the other accused persons were holding lathi. Words 'Other accused persons were holding lathi' have been marked as 'A to A' in Dehatinalisi (Ex.P/1). 10. On appreciation, we find that there is no reliable evidence to the effect that these appellants were holding tabbal at the time of the incident. If at all, they were present at the place of occurrence, they were holding lathi. Dr. P.K. Bajpayee (PW-5) had conducted autopsy on the dead body of the deceased. 10. On appreciation, we find that there is no reliable evidence to the effect that these appellants were holding tabbal at the time of the incident. If at all, they were present at the place of occurrence, they were holding lathi. Dr. P.K. Bajpayee (PW-5) had conducted autopsy on the dead body of the deceased. He had found following injuries on the person of the deceased: (i) incised wound 4½ inch x 1½ inch x bone deep at the right temporal region; (ii) the neck was completely cut and was attached with the body with the skin; (iii) incised wound 4 inch x 1 inch x ½ inch on the right angle of the mandible bone. (iv) incised wound 2 inch x ½ inch x bone deep on occipital region; (v) incised wound 3 inch x ¼ inch x ¼ inch on the left shoulder; (vi) fracture of temporal bone corresponding to injury No.1. 11. It is on the above set of evidence, Mr. Prajapati has argued that the version of the eye-witnesses that the appellants caused the above injuries to the deceased, was not corroborated by the medical evidence as the appellants were holding lathi. The presence of the above injuries on the person of the deceased makes it clear that the above injuries were caused by sharp edged weapon and none of the above injuries could have been caused by lathi. In absence of any evidence of common intention or common object, it can be safely held that the appellants, who were holding lathi, did not participate in causing injuries to the deceased. The learned Session Judge has held that it was not a case of formation of unlawful assembly. Therefore, everyone would be liable for his individual act. It was also held that the evidence of above three eye-witnesses was not wholly reliable and their evidence was shaky and doubtful on many points. On appreciation of the entire evidence available on record, we find that in the above facts and circumstances of the case, it was not safe to rely on the testimonies of the above witnesses, who were held to be unreliable and doubtful on many facts. 12. On the medical testimony, which is not controverted, the allegations made by the above eye-witnesses against the appellants that they also participated in commission of murder of the deceased, becomes shaky. 12. On the medical testimony, which is not controverted, the allegations made by the above eye-witnesses against the appellants that they also participated in commission of murder of the deceased, becomes shaky. We are of the view that in the above facts and circumstances of the case, the conviction of the appellants on the above testimonies of the eye witnesses; who were held to be partly reliable and incredible, cannot be sustained. 13. For the foregoing reasons, the appeal is allowed. The conviction and sentences awarded to the appellants under Section 302/34 IPC are set-aside. The appellants are acquitted of the charges framed against them. Appeal Allowed.