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Madhya Pradesh High Court · body

2013 DIGILAW 1118 (MP)

Kishan @ Kishniya v. State of M. P.

2013-09-13

M.C.Garg, Shantanu Kemkar

body2013
JUDGSMENT Garg, J. -- 1. This appeal arises out of the judgment delivered by the learned Additional Sessions Judge in Sessions Trial No.285/89 in Crime No.1633/88 delivered on 22nd June, 1989 whereby, the learned Additional Sessions Judge has convicted the appellant Kishan alias Kishniya for having caused the death of Adesingh; appellant Jabariya and Gamariya for having caused the death of Jungliya and Kustum under section 302 of IPC and to undergo imprisonment for life besides making payment of fine of Rs.1,000/-. The trial Court has also convicted the other appellants Jabariya, Undliya, Nirbhaysingh, Gambhir and Ganpat under section 302/149 on all the aforesaid three counts and also sentenced them to undergo imprisonment for life with fine of Rs.1,000/- each. In default of payment of fine, they have been directed to further undergo RI for one year. 2. During the pendency of this appeal, one of the appellant namely -- Gambhir has died and, therefore, his name was deleted on 7.9.2005. 3. Learned counsel for the appellants has submitted that while there is evidence against the appellants Kishan alias Kishniya and Jabariya, there is no evidence to sustain the conviction of Undliya, Nirbhaysingh and Ganpat. He has, therefore, submitted that as far as the aforesaid three appellants are concerned, they are entitled to be acquitted of the charges framed against them. It may be observed here that all the appellants are in judicial custody. 4. As per the story of the prosecution, in the intervening night of the 3rd/4th March, 1985 at about 3:30 a.m., when villagers of the village Behdewa were dancing on the occasion of Holi festival, the appellants caused injuries with arrow to Adesingh, Jangliya and Kustam, as a result of which, they died. A report was lodged at P.S. Sorwa. After completion of the investigation, the police filed challan against the appellants and other 7 co-accused persons. Out of these, 2 were minors, one is absconding while two of them died. As far as, we are concerned, we are only concerned with the appeal filed by the appellants. 5. It has been submitted that insofar as appellant No.2 Jabariya and appellant No.5 Gambhir are concerned, they have received injuries but the prosecution was unable to explain their injuries. Prosecution witnesses PW8 Pratap and PW9 Dashriya also have not supported the prosecution version. 6. 5. It has been submitted that insofar as appellant No.2 Jabariya and appellant No.5 Gambhir are concerned, they have received injuries but the prosecution was unable to explain their injuries. Prosecution witnesses PW8 Pratap and PW9 Dashriya also have not supported the prosecution version. 6. At this juncture, it will be relevant to take note of the FIR which has been registered at the instance of PW2 Jassu on 4.3.1988 at about 10:00 a.m. whereas, the incident allegedly happened in the midnight of 3rd/4th of March, 1985 at about 2:30-3:30 a.m. As per the FIR, the complainant along with Choukidar of the village and brother of Kustum came to the police station and lodged the report, which reads as under : ^^dy gksyh dk R;kSgkj gksus ls gksyh tykus o ukpus eSa o esjk HkkbZ taxfy;k] dqLre rFkk Qkfy;k ds vnsflag] ctfy;k] bUnzflag] izrki vkfn ds lkFk x;k Fkk ogk¡ ij xk¡o ds tcfj;k s/o Hkwjflag] fd’kfu;k s/o gkiw] mUnfy;k s/o Hkkje] xefj;k s/o phfy;k] fuHkZ; flag s/o iqfuIi] x.kir s/o Hkkoflag fHkykys rhu dkeBh o Qkfy;k fy, vk,A lc feydj ukpus yxs tks tcfj;k us taxfy;k ls dgk rkjh jkaM pkSnw rw chp esa dkgs ukps vkSj ,d rhj dkeBh ij p<+k dj ekjk tks taxfy;k dks dw[k esa yx dj vkj&ikj gks x;kA nwljk rhj xefj;k us ekjk tks ck,a gkFk dh Hkqtk esa ihNs rjQ yxk gksdj [kwu fudyk gSA taxfy;k Hkkxdj Nhrw ds [ksr esa FkksM+h nwj tkdj fxj iM+k o ogha ej x;k fQj fd’kfu;k us vnsflag dks tku ls ekjus ds fy, ,d rhj ekjk tks nkfgus rjQ ckscs ds uhps ls gksdj [kwu fudyk fQj mUnfy;k us vnsflag dks gkFk idM+ dj Qkfy;k dk >Vdk ekjk tks ugha yxk fQj xefj;k us dqLre dks ,d rhj tku ls ekjus ds fy, ekjk tks Nkrh esa nkfgus rjQ yxk nwljk rhj fuHkZ; flag us ekjk tks nkfgus rjQ Nkrh esa yxk rhljk rhj x.kir us ekjk tks nkfgus gkFk dh dykbZ ds ikl yxk tks rhj vkj&ikj gks x;k rFkk [kwu fudyus yxkA fQj banzflag dks fd’ku us ,d rhj ekjk tks iqV~Bs ds ihNs rjQ yxk gksdj [kwu fudykA x.kir rhj dkeBh ysdj banzflag ds ihNs nkSM+k rks bUnzflag Hkkx x;kA ;g lc yksx ,d er gksdj rhj dkeBh ysdj vk, Fks o bUgksaus rhj dkeBh o Qkfy;s ls ekjk&ihVh dhA ,d o”kZ igys budk HkkbZ csVk rsjflag esjh cgu gtjk dks Hkxk dj ys x;k Fkk o gtjk dks ge lc yM+&>xM+dj okil yk, Fks blh ckr dh ;g yksx ge yksxksa ls jft’k j[krs gSaA rhj ekjrs gq, ns[krs gq, Qkfy;k ds ds’kfj;k] esy ckbZ] ckydh] izrki] :Lre] lcflag vkfn us ns[kk gS lks fjiksVZ djrk gw¡A fjiksVZ i<+kdj lquh esjs dgs vuqlkj fy[kh gS ckn gLrk{kj fd,A** 7. A perusal of the FIR goes to show that appellant Jabariya gave a blow with arrow to deceased Jangaliya, which hurt him at the chest while Gamariya caused injuries on his hand. The doctor, who conducted post-mortem namely -- M.A. Khan PW13 vide his report Ex.P-35 has found only two incised wounds on the dead body of Jungaliya. He has not found any injury on the hand of deceased Jungaliya. 8. As far as deceased Adesingh is concerned, it was Kishniya who caused arrow injury on the chest of Adesingh. According to his post-mortem report Ex.P-4, there was only one incised wound found on his person. Post-mortem was conducted by PW5 A.S. Tomar. 9. As per the FIR, arrow injury was caused to Kustum on his chest by Gamariya. Even though, there is allegation in the FIR that Nirbhaysingh also caused arrow injury. There is no mention of Nirbhaysingh having caused such injury in the dying declaration of Kustum vide Ex.P-36. To appreciate the aforesaid statement, it is appropriate to take note of the dying declaration made by Kustum which reads as under : ej.kklUu dFku This is to certify that Kustum s/o Ansingh Bhilala says r/o Behadawa is conscious and in sound state and fit for dying declaration. iz- Fgkjks uko dbZ gks\ m- Egkjks uko dqLrqe gksA iz- Fgkjk ckijks uko dbZ gks\ m- Egkjk ckijks uko vuflag gksA iz- dgk¡ jgs\ m- csgMokA iz- Fgkjs rhu fdu ekj;ks\ m- xefj;k s/o fpfy;ks fuoklh csgMok us rhj ekfj;ks vkSj tcfj;k s/o Hkqjflag us ekfj;ksA iz- Fgkjs rhj dbZ ysus ekfj;ks\ m- gw¡ gksyh dks ukp ns[kh fj;ks Fkh vkSj [kM+ks Fks rks xefj;ksa us vkbZ ds ekjs rhj ekjh fn;ksA iz- Fgkjs rhj ekjrk fdu nsf[k;ks\ m- Egkjs rhj ekjrk banzflag s/o vcsflag] fijrki s/o tgw] :Lre s/o vuflag vkSj Hkh ?kM+k euds us nsf[k;ksA iz- Fgkjs vkSj dbZ dbd gks\ m- dbZth dbZdA 10. The prosecution to prove its case, examined four eye-witnesses namely -- PW2 Jassu, PW3 Melbai, PW4 Balki, PW7 Sabesingh and PW11 Rustam even though, there were two other witnesses who were examined by the prosecution namely -- PW8 Pratap and PW9 Dashariya but they both were declared hostile. 11. In the dying declaration of Kustum, there is also mention of name of Indersingh as eye-witness but he has not been examined by the prosecution. 12. 11. In the dying declaration of Kustum, there is also mention of name of Indersingh as eye-witness but he has not been examined by the prosecution. 12. Learned counsel for the appellants has submitted that absolutely there is no evidence about causing of injury to the deceased persons by Nirbhaysingh, Undaliya and Ganpat, in this regard it has been pointed out that PW2 Jassu, who is also the FIR maker has also not stated that any arrow injury was caused on the chest of Kustum. PW3 Melbai has stated that Nirbhaysingh caused arrow injury to Kustum. Referring to the statement of PW3 Melbai who has stated, she has not so stated in police statement. 13. As far as appellant Undaliya is concerned, it is submitted that as per PW2 Jassu, Undaliya caused the injury throughy a faliya on Adesingh but no injury has caused. As far as PW3 Melbaiand PW4 Balki are concerned, they have not been mentioned regarding any injury having been caused on Adesingh by the aforesaid three appellants. 14. It has been submitted that even though, PW2 Jassu has stated that Nirbhaysingh caused arrow blow to Kustum but this is not so stated by the deceased Kustum in his dying declaration. As far as Sabesingh and Rustam are concerned, even though, they have made allegation about Nirbhaysingh having caused arrow injury to Kustum but his name has not mentioned in the dying declaration. 15. Similarly, about appellant Ganpat, it is submitted that in the statement of PW2 Jassu, it has come on record that Ganpat caused arrow injury to Kustum on his hand but no corresponding injury has been found in post-mortem report. PW3 Melbai, PW4 Balki, PW7 Sabesingh have also not stated anything about the role played by appellant Ganpat in this entire episode. 16. As regards presence of Undaliya, Nirbhaysingh and Ganpat is concerned, it has been argued that it was Holi festival and there was crowed of 500 people therefore without any sufficient cause, cannot implicate appellants Undaliya, Nirbhaysingh and Ganpat in the crime. 17. It has also been submitted that all the witnesses are the relatives of deceased. PW2 Jassu is the brother of deceased Jungliya and Kustum, PW3 Melbai and PW4 Balki are daughters of deceased Adesingh and PW7 Sabesingh is the son of deceased Kustum. 18. 17. It has also been submitted that all the witnesses are the relatives of deceased. PW2 Jassu is the brother of deceased Jungliya and Kustum, PW3 Melbai and PW4 Balki are daughters of deceased Adesingh and PW7 Sabesingh is the son of deceased Kustum. 18. Reliance has also been placed upon the only defence witnesses examined in this case namely -- DN1 Guman Singh alias Gumana, who has deposed as under : ^^1- eSa csgMok xk¡o dk iqtkjh gw¡A eSa vius xk¡o dh gksyh tykrk gw¡A vkt ls 12 lky igys xzke csgMok esa eSaus ‘kke 6 cts gksyh tykbZ FkhA gekjs xk¡o ds rFkk vkl&ikl xk¡o xMkr] lksedqvk ds yxHkx 500 yksx gksyh ij bdV~Bk gq, FksA 2- gksyh 8 cts jkr rd vFkkZr~ 2 ?kaVs ckn iwjh rjg ty xbZ Fkh vFkkZr~ jk[k gks xbZ FkhA gksyh ij rsjfl;k] o vfHk;qDr xefj;k o tcfj;k ekStwn FksA ;g rhuksa Hkh gkFk [kkyh FksA buds vykok vU; dksbZ vfHk;qDr ogk¡ ij ekStwn ugha FkkA gksyh ij tLlq] vnsflag] dqLre vkSj taxfy;k ekStwn FksA buds ikl rhj dkeBh o MaMs FksA eSa gksyh ij 6 cts ls yxkdj jkr ds 3 cts rd ekStwn FkkA tLlq] dqLre vkSj taxfy;k vkSj vnsflag rsjflag rFkk tcfj;k] xefj;k ns[k cksys fd rqe rhuksa us gekjh cgu gtjh ¼ukuyh½ dks rsjflag dh vkSjr cuk nh Fkh vkSj blfy, rqe rhuksa dks tku ls ekj MkysaxsA ;g dgdj bu yksxksa us xefj;k] tcfj;k dh ekjihV ‘kq: dj nh vkSj rsjflag cpdj Hkkx x;k rks rsjflag] xefj;k o tcfj;k fpYyk,] bl ij ls ogk¡ ij ekStwn HkhM+ us tLlq] dqLre] taxfy;k vkSj vnsflag ij rhj NksM+s rks bu yksxksa us Hkh rj NksM+s FksA vkeus&lkeus HkhM+ vkSj bu yksxksa ds chp rhj pyus ls taxfy;k vkSj otsflag rFkk dqLre rhuksa ij HkhM+ ds }kjk NksM+s gq, rhj yxs FksA 3- fdu yksxksa ds rhj budks yxs] ;g igpku esa ugha vk, D;ksafd ,d rks pkj&ik¡p lkS yksx ogk¡ ij ekStwn Fks vkSj gksyh ds LFkku ij isM+ksa dh Nk;k gksus ls va/ksjk Hkh Fkk vkSj tks yksx ukp jgs Fks muds ukp ds dkj.k /kwy Hkh mM+ jgh FkhA** 19. It is submitted that independent witnesses namely -- PW8 Pratap and PW9 Dashariya have not supported the case of the prosecution. PW11 Rustam is also brother of deceased Jungliya and Kustum. It is submitted that independent witnesses namely -- PW8 Pratap and PW9 Dashariya have not supported the case of the prosecution. PW11 Rustam is also brother of deceased Jungliya and Kustum. With these submissions, learned counsel for the appellants has prayed for acquittal of the appellants Undaliya, Nirbhaysingh and Ganpat in this case by submitting that neither there is any direct evidence against them nor they can be fastened liability of section 302 of IPC as per principle laid down under section 149 of IPC. 20. We have examined the record of this case and have perused the statement made by the eye-witnesses namely -- PW2 Jassu, PW3 Melbai, PW4 Balki, PW7 Sabesingh and PW11 Rustam. We have also perused dying declaration of deceased Kustum and statement made by Jassu PW2 to the police under section 161 of CrPC. 21. Having perused the aforesaid, we find substance in the statement made on behalf of the learned counsel appearing for the appellants to the extent that there is no evidence available on record about involvement of Undaliya, Nirbhaysingh and Ganpat in this case. We find that the prosecution has not been able to prove its case beyond reasonable doubt insofar as the role of the aforesaid three appellants is concerned in having caused fatal blow to the deceased Adesingh,Jungaliya and Kustum whereas, we find that the conclusion drawn by the learned trial Court with respect to the role of appellants No.1 and 2 in having caused arrow blows to all the three deceased is established beyond reasonable doubt not only by the prosecution witnesses but also by the defence witnesses. 22. Consequently, we up-hold the trial Court judgment in respect of the conviction of appellants Kishan alias Kishniya and Jabariya for having caused the death of the deceased Jungliya, Kustum and Adesingh and, therefore, up-hold their conviction under section 302 of IPC as well as under section 302/34 of IPC. The sentence awarded to undergo for life and to pay fine of Rs.1,000/- each on every count is also confirmed. 23. However, we find no evidence to implicate appellants Undaliya, Nirbhaysingh, Ganpat for having committed offence for which they charged, accordingly, they are acquitted. They are on bail. Their bail bond stands discharged. .............