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2014 DIGILAW 392 (CHH)

Sukhdev Yadav v. State of M. P.

2014-11-14

NAVIN SINHA, PRASHANT KUMAR MISHRA

body2014
ORDER 1. The Appellants stand convicted under Section 148 IPC to 3 years rigorous imprisonment, under Section 302/149 IPC to life imprisonment, under Section 460 IPC to 10 years rigorous imprisonment and under Section 436 IPC to 10 years rigorous imprisonment along with fine of Rs. 5000/-. In the event of failure to pay fine, they were required to undergo two years further rigorous imprisonment as ordered by the First Additional Sessions Judge, Ambikapur, Sarguja in Sessions Trial No. 94/1997 on 30.11.1999. The occurrence is stated to have taken place on 13.12.1996 at 9:00 pm leading to the death of Surthuram. Merg Intimation was recorded by his son PW 9, Shyam Sunder on 14.12.1996 at 5:00 pm marked Exhibit P/13. FIR by the same witness was also lodged on 14.12.1996 itself marked Exhibit P/12. It stated that while he was at home with his father, mother and wife, Jirmaeel Bai PW 8, warming themselves by the fire the Appellants came and started banging on their door using abusive language threatening to open or else they would break down the door. Through the gap in door they recognized the appellants who then climbed on and tore the thatched roof and set the house on fire. The witness, PW 8 and others ran out. There was a land dispute between them since earlier. 2. The postmortem of the deceased, Exhibit P/15 was conducted on 15.12.1996 by Dr. T. Sai, PW 11 who found seven incised injuries on the person of the deceased, one stab wound and abrasion and the postmortem further revealed fracture of the temporal bone and right mandible. 3. Learned Counsel for the Appellants submitted that it was a dark night. There is no mention of any source of light. Identification of the Appellants was therefore not possible. The possibility of false implication cannot be ruled out in view of the admitted pre-existing land dispute between them. PW 8 did not say that she saw any one of the appellants putting the house on fire. There has been no recovery of any weapon of assault let alone any sharp cutting weapon from them. They reside in separate villages from that of the informant and the deceased. R.K. Mishra, the Investigating Officer has stated that Appellant, Prabhu Yadav was sick and therefore he could not arrest him. There has been no recovery of any weapon of assault let alone any sharp cutting weapon from them. They reside in separate villages from that of the informant and the deceased. R.K. Mishra, the Investigating Officer has stated that Appellant, Prabhu Yadav was sick and therefore he could not arrest him. It is not possible that the Appellant who was so unwell could have indulged in such activity which again creates doubt about the prosecution story. 4. Counsel for the State has opposed the appeal submitting that PW 9 has stated of the Appellants setting the house on fire and PW 8 is an eyewitness to the assault. 5. We have considered the submissions on behalf of the parties and examined the evidence on record also. Blood was recovered from the earth samples seized from the place of occurrence marked as Exhibit P/4. Burnt house materials were also seized marked as Exhibit P/6 proved by Kamlesh, PW 3 and Lohra, PW 4. The spot map, Exhibit P/8 was also proved by Lohra, PW 4. 6. PW 8, the daughter-in-law of the deceased stated that she was inside the house sitting by the winter fire with her family when the appellants came banging the door using abusive language threatening to break down the door and kill them if it was not opened. Her husband PW 9 also peeped through the door and recognized the Appellants. When they did not open the door, the Appellants climbed up the house tore the thatched roof and set the house on fire. The inmates of the house ran out. Her one year old child was in the lap of the deceased and when he started to cry the Appellants came and assaulted the deceased with a specific attribution against Appellant-Lavang of first having caught the deceased after which Appellant Kashi Gupta assaulted the deceased on the head and Lavang assaulted on the leg with a sharp weapon. She ran away with her towards the jungle and returned later. Her father-in-law had expired. She also stated of previous enmity between the parties. 7. PW 9 reiterated that the Appellants came to the house at night and asked the door to be opened using abusive language and tried to break down the door. They were also shouting that if the door was not opened they would set the house on fire. She also stated of previous enmity between the parties. 7. PW 9 reiterated that the Appellants came to the house at night and asked the door to be opened using abusive language and tried to break down the door. They were also shouting that if the door was not opened they would set the house on fire. The Appellants climbed on the roof and broke the thatched roof and set the house on fire. The witness ran from the place while his wife PW 8 ran towards the jungle. PW 8 came back little later and informed him that the Appellants had assaulted the deceased by sharp cutting weapons. There was pre-existing land dispute between the parties. He confirmed having lodged the merg intimation and the first information report. 8. H.R. Chandra, PW 10 proved having recorded the merg intimation. Dr. T. Sai, PW 11 proved the postmortem report. R.K. Mishra, PW 12 was the Investigating Officer who deposed about the illness of Appellant, Prabhu, but no question in this regard was put on behalf of the defence in cross-examination to PW 8 and PW 9. 9. It emerges that there was strong motive due to pre-existing land dispute over the years. PW 8, PW 9 and the deceased were related to the Appellants and therefore well known to each other. The intruders were not strangers making identification difficult. It has to be kept in mind that the witnesses were rural folk whose ocular vision in the dark is better than residents of a town used to incandescent light only. The Appellants were shouting which must have facilitated identification also. There was a fire burning. It is difficult to accept the submission that identification of the Appellants was not possible. In Ram Gulam Chaudhary Vs. State of Bihar (2001) 8 SCC 311 it was observed as follows:-- "34.......As has been held by this Court in the case of Kalika Tiwari v. State of Bihar the visibility capacity of urban people who are acclimatised to fluorescent lights or incandescent lamps is not the standard to be applied to villagers...." 10. In Kedar Singh Vs. State of Bihar 1998 SCC (Cri.) 907 it was observed as follows:-- "3......It has also to be observed that even on a full dark night there is never total darkness. In Kedar Singh Vs. State of Bihar 1998 SCC (Cri.) 907 it was observed as follows:-- "3......It has also to be observed that even on a full dark night there is never total darkness. There can be other means to identify another through the shape of his body, clothes, gait, manner of walking etc., etc. Identification is possible by voice too...." Similarly in State of M.P. Vs. Makhan (2008) 10 SCC 615 it was observed as follows:- "9.... It is true that even in darkness known persons can be identified from the manner of speech, style of walking and several other peculiar features......." 11. Enmity cuts both ways. It can be a justification for false implication but it is also be a motive to commit a crime. In the present case, the existence of previous land dispute as a motive stands established. The fact that there has been no recovery from the Appellants in view of clear and cogent evidence with regard to their identification both by PW 8 and PW 9 is inconsequential. 12. Both PW 8 and PW 9 have recognized the appellants and mentioned the respective roles played by them in the first part and second part of the occurrence which were in sequence to each other. The two witnesses ran out when PW 8 saw the assault on the deceased by Appellant, Lavang and Kashi. Quite apparently from the nature of injuries noticed in the postmortem report, they were not the only persons who assaulted the deceased. The postmortem report reveals seven incised wounds, one stab wound and abrasion. Naturally he had been subjected to assault by the members of the unlawful assembly who undoubtedly came with a common intention armed in the dead of night to commit assault. 13. In conclusion, we find no reason to interfere with their conviction. The Appeal is dismissed. The Appellants are on bail. Their bail bonds are cancelled and they are directed to surrender forthwith/be taken into custody immediately to serve the remaining period of conviction in accordance with law. Appeal dismissed