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2013 DIGILAW 1265 (MP)

Mukhram v. State of M. P.

2013-10-22

A.K.SHRIVASTAVA, VIMLA JAIN

body2013
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 31.8.2001 passed by learned Third Additional Sessions Judge, Chhattarpur in Sessions Trial No.31/2000 convicting the appellants under section 148 and sentencing them to suffer RI for two years and also under section 302/149 IPC and thereby sentencing them to suffer rigorous imprisonment for life with default stipulations as mentioned in the impugned judgment, the appellants have preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. In the present case there are as many as 10 accused persons namely Mukhram (appellant No.1), Bhauram ((appellant No.2), Rajkumar alias Pahalwan (appellant No.3), Brijkishore (appellant No.4), Nandkishore (appellant No.5), Ram Asre (absconding) (appellant No.6), Ram Khilawan (accused No.7 who filed a separate appeal and during pendency of that appeal he had died), Kriparam and Santkumar (accused No.8 and 9) were acquitted while accused No.10 Dadi s/o Sukhram died during the trial. 3. In brief the case of prosecution is that on 12.8.1997 eye-witnesses Ramdas and her Bhabhi Kamla (elder brother’s wife) of village Kawarau who were accompanied by Shivram of village Supa along with Devbati and wife of Ramavtar were going. It is said that Ramdas and Shivram boarded the bus from the bus stop of Mahoba and thereafter all these four persons in the bus were going to village Gahwara and alighted in village Barha. It is said that Lala Bhai (hereinafter referred to as “the deceased”) was already told that he should join these persons from Barha bus stand as a result of which Lala Bhai also joined these four persons from bus stand of village Barha. Thereafter, all these five persons started their journey from village Barha to village Gahwara as pedestrians. On the way nearby the bandhia of Dina Chamar, accused Ram Khilawan alias Khillu (who after conviction filed separate appeal and who had died during the pendency of the appeal) having a gun in his hand came out and scolded upon the deceased. However, the deceased did not pay any heed to his alarm and further proceeded to his way as a result of which said Ram Khilawan fired the gun and the gunshot fire struck the back of the deceased. On receiving the gunshot injury the deceased fell down. However, the deceased did not pay any heed to his alarm and further proceeded to his way as a result of which said Ram Khilawan fired the gun and the gunshot fire struck the back of the deceased. On receiving the gunshot injury the deceased fell down. Thereafter, it is said that said Ram Khilawan alias Khillu again scolded upon the deceased and told other accused persons that the deceased is running away as a result of which absconded co-accused Ram Asre and other co-accused Rajkumar and Mukhram having pharsa, Kriparam, Dadi, Santkumar alias Santu, Brijkishore and Nandkumar alias Dau by carrying Axe in their hands and Bhauram carrying a gun chased the deceased. It is said that first of all Ram Asre dealt pharsa blow upon the deceased. Thereafter, Kriparam dealt axe blow. Subsequently, all the accused persons started causing injuries to the deceased. Further, it is the case of the prosecution that accused Bhauram was instigating the other accused persons by saying “maro sale ko, bach ke na jane paye” and started hurling abuses. On account of receiving injuries by the deceased, he had died. The other persons who were accompanying the deceased on seeing the incident got frightened and went to their respective houses. On the next day, Ramdas Shukla lodged the written report in the concerning police station on the basis of which FIR was registered and the case was investigated. On lodging of the first information report the criminal law was triggered and set in motion. The investigating agency arrived at the spot; prepared the spot map; seized the dead body and sent it for post-mortem; recorded the statement of the witnesses and seized the ordinary and blood stained clothes. 4. After the investigation was over a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received for trial. The learned trial Judge on the basis of the averments made in the charge-sheet framed charges punishable under sections 148 and 302 IPC and in the alternative, 302/149 IPC against all the appellants which they denied and requested for the trial. The prosecution thereafter examined as many as 8 witnesses and also placed Ex.P-1 to P-14, the documents on record. The defence of the appellants is of false implication and the same defence they set-forth in their statement recorded under section 313 CrPC. The prosecution thereafter examined as many as 8 witnesses and also placed Ex.P-1 to P-14, the documents on record. The defence of the appellants is of false implication and the same defence they set-forth in their statement recorded under section 313 CrPC. The other co-accused Kriparam and Santkumar alias Santu took the plea of alibi and in support of their defence the accused persons including acquitted co-accused Kriparam and Santkumar examined as many as five witnesses, they are : Baburam (DW1), Mahendra Singh (DW2), Uttam (DW3), Virendra Singh (DW4) and Govind Prasad Tiwari (DW5). 5. The learned trial Judge on the basis of the evidence placed on record did not find the charges against accused Kriparam and Santkumar to be proved and eventually they have been acquitted. Accused Dadi also died during trial and the trial was abated against him. However, the charges were found to be proved against the present appellants and another co-accused Ram Khilawan and eventually they have been convicted under sections 302/149 and 148 IPC and they have been directed to serve the sentence as mentioned in the impugned judgment. Indeed, Ram Asre is absconding since beginning while Ram Khilawan who filed a separate appeal before this Court died during pendency of that appeal. 6. We have heard Shri Manish Awasthy and Shri Rajkamal Chaturvedi, learned counsel for the appellants and Shri Sudesh Verma, learned Public Prosecutor for the respondent-State and having heard them, we are of the considered view that this appeal deserves to be allowed in part. 7. In the present case there are as many as four eye-witnesses to the incident, they are Ramdas Shukla (PW1), Kamla Bai Shukla (PW2), Shivram Shukla (PW3) and Dev Vati Shukla (PW4). Out of these four eye-witnesses, the author of the FIR is Ramdas Shukla (PW1) who has also proved the FIR, Ex.P-13. On going through the testimony of the author of the FIR Ramdas Shukla, we find that specifically he has deposed that when he along with the deceased, Shivram, Devbati etc. were going from village Barha to village Gahwara, on the way accused Ram Khilawan alias Khillu fired gunshot which struck the back of the deceased as a result, he fell down and thereafter upon the insistence of the accused Ram Khilawan all the accused persons started giving blows of weapons to the deceased which they were carrying with them. were going from village Barha to village Gahwara, on the way accused Ram Khilawan alias Khillu fired gunshot which struck the back of the deceased as a result, he fell down and thereafter upon the insistence of the accused Ram Khilawan all the accused persons started giving blows of weapons to the deceased which they were carrying with them. It is said that appellant Mukhram was carrying a pharsa while appellants Rajkumar, Brijkishore and Nandkishore were carrying pharsa and axe respectively. For appellant No.2 Bhauram it is said that he was carrying a gun and he simply hurled the abuses to the deceased and was exhorting the other accused persons to kill the deceased. The statement of author of FIR, Ramdas Shukla has been corroborated by the evidence of other eye-witnesses namely Kamla Bai Shukla (PW2), Shivram Shukla (PW3) and Dev Vati Shukla (PW4). 8. We have examined the statement of witnesses thoroughly and we could not find that there is anything in order to disbelieve their testimony. On the contrary, we find their evidence to be clear, cogent and trustworthy. Therefore, according to us, learned trial Court did not commit any error in convicting the appellants except appellant No.2 Bhauram under section 302/149 IPC. However, we find that the charge under section 148 IPC has not been proved against appellant No.2 Bhauram and other appellants because no charge under section 147 IPC has been framed against the present appellants. It is not the case of the prosecution that the accused persons formed unlawful assembly. However, except appellant No.2 Bhauram, the act of all the accused persons since they collectively had gone upon the insistence of accused Ram Khilawan and dealt injuries by pharsa and axe to the deceased, therefore, according to us, except appellant No.2 Bhauram, all the appellants have committed the offence punishable under section 302/149 IPC. 9. The evidence of all the eye-witnesses has been corroborated by the evidence of Autopsy Surgeon Dr. Upendra Kumar Gupta (PW3) who has proved the post-mortem report of the deceased Ex.P-8. On scanning the evidence of the doctor as well as the post-mortem report we find that apart from gunshot injury which is said to have been caused by accused Ram Khilawan, there are several incised wounds on the person of the deceased. Upendra Kumar Gupta (PW3) who has proved the post-mortem report of the deceased Ex.P-8. On scanning the evidence of the doctor as well as the post-mortem report we find that apart from gunshot injury which is said to have been caused by accused Ram Khilawan, there are several incised wounds on the person of the deceased. Needless to say appellants Mukhram, Rajkumar, Brijkishore and Nandkishore were carrying pharsa and axe and all the eye-witnesses in their similar voice have deposed that they have caused injuries by the weapons which they were carrying to the deceased. Thus, according to us, learned trial Court did not commit any error in convicting the appellants under section 302/149 IPC except appellant No.2 Bhauram. 10. However, on scanning the testimony of author of the FIR, Ramdas Shukla (PW1) and other eye-witnesses, we find that although the role assigned to appellant No.2 Bhauram is that he is carrying a gun, but he had simply asked the other appellants to kill the deceased. According to us, it would not mean that his act would come within the purview of section 302/149 IPC. Indeed when upon exhorting by accused Ram Khilawan all the accused persons rushed towards the deceased and started giving blows of weapons which they were carrying with them, this appellant Bhauram simply hurled abuses to the deceased. According to us, he cannot be convicted under section 302/149 IPC. Had there been any common object of this appellant along with other co-accused persons to kill the deceased since this appellant was carrying a gun with him, nobody prevented him to cause the gunshot fire but instead of causing any gunshot fire he simply scolded by saying “maro sale ko, bach ke na jane paye”. That apart, seizure of gun from this appellant is also not proved. The prosecution has examined Dayaram (PW5) who is the witness of the seizure memo of the gun, but, he has not supported the case of the prosecution and was declared hostile. The other witnesses to the seizure memo has not been examined and Sitaram Pateriya (PW8) who is the Police Inspector has not deposed in his testimony that he had seized the gun from this appellant. Thus, the seizure of gun from this appellant is also highly doubtful. Hence, we hereby extend our benefit of doubt to appellant No.2 Bhauram. 11. The other witnesses to the seizure memo has not been examined and Sitaram Pateriya (PW8) who is the Police Inspector has not deposed in his testimony that he had seized the gun from this appellant. Thus, the seizure of gun from this appellant is also highly doubtful. Hence, we hereby extend our benefit of doubt to appellant No.2 Bhauram. 11. On bare perusal of the judgment we find that charge under section 147 has not been framed against the appellants and, therefore, according to us, in order to convict the accused under section 148 IPC, the guilt of rioting is pre-supposed. Since the appellants have not been charged under section 147 IPC, therefore, according to us they cannot be convicted for the charge under section 148 IPC. Accordingly, conviction of all the appellants under section 148 IPC is hereby set aside. 12. Resultantly, this appeal succeeds and is hereby allowed in part. The judgment of conviction and order of sentence passed by learned trial Court against all the appellants under section 148 is set aside and they are acquitted from the said charge. However, appellants Mukhram s/o Narayan Brahman, Rajkumar s/o Narayan Brahman, Brijkishore s/o Parmeshwardeen and Nandkishore s/o Parmeshwardeen are convicted under section 302/149 IPC and the judgment of conviction and order of sentence passed against them by the learned trial Court under this section is hereby affirmed. 13. For the reasons stated hereinabove, we find that conviction of appellant No.2 Bhauram cannot be sustained and the same is hereby set aside and he is acquitted from all the charges. He is on bail. His bail bonds stand discharged.