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2018 DIGILAW 517 (MP)

Makhan v. State of M. P.

2018-05-22

ASHOK KUMAR JOSHI, SANJAY YADAV

body2018
JUDGMENT Yadav, J.--1. Appellants along with four persons, viz, Kadam Singh, Kok Singh, Pappu alias Ramniwas, Prabhu alias Sadhu were tried for an offence punishable under sections 302, 451, 294, 323 read with section 34 IPC and sections 25, 27, 30 of Arms Act for causing death of Kalicharan. Whereas, Kadam Singh, Kok Singh, Pappu alias Ramniwas, and Prabhu alias Sadhu have been acquitted, the appellant Makhan while acquitted for an offence punishable under section 506B IPC and section 25(a) of the Arms Act has been convicted under section 302 IPC whereas, appellant No. 2 Dadhiram is convicted for the offence under section 302/34 IPC. 2. As recorded in separate order passed today, appellant No. 1 died during the pendency of present appeal, as such his name is directed to be deleted from the array of appellants, and the appeal at his instance is dismissed being abated. The present appeal, as a natural corollary, is confined to appellant Dadhiram. 3. The prosecution was set in motion with Kamal Singh (PW2) lodging the first information report on 17.3.1995 at 18:10 hours (06:10 p.m.) at PS Civil Lines, Morena to the extent that he is a resident of Visangpur, at about 4 p.m. on “holi ki parva” Dadhiram said to have the wrestling between his son Makhan with Baijnath (complainant's nephew). On refusal, as Baijanath was not a match, Dadhiram entered into hot talks; however, with the intervention by the persons present around, he left the place with Kok Singh, Karma hurling abuses and saying that the complainant will be settled (Thikane lagaye dete hain). Complainant came back home. After one hour Dadhiram armed with lathi along with his son Makhan armed with gun, Kok Singh “farsa”, Kadma “barchi” came at his door (house) where Kalicharan, Baijnath, Shyamlal, Ramratii, Rakesh, Matadin, Pothi, Gar Singh were also sitting and gave call, hurling abuses. On complainant requesting with folded hands to go back, at that moment Makhan gave a gun shot to Kalicharan, complainant's son, which hit him on right side of neck, who being taken to hospital, died on way. The investigating officer, PW24, after recording complaint and preparing crime detail form and the spot map (Exhibit P-3), arrested the accused persons. On their memorandum statement seized the weapons said to be used for commission of offence. The investigating officer, PW24, after recording complaint and preparing crime detail form and the spot map (Exhibit P-3), arrested the accused persons. On their memorandum statement seized the weapons said to be used for commission of offence. The gun and the licence in the name of Dadhiram, present appellant was seized at the instance of Makhan. Blood stained soil was collected and the forensic science report (Exhibit P-14) was sought. The dead body was sent for post mortem. The report whereof is Exhibit P-24. After completing necessary investigation and other formalities, the charge sheet was filed under sections 302, 451, 294, 323 and 34 IPC against Kadam Singh, Kok Singh, Dadhiram (appellant), Makhan (appellant since dead), Pappu and Prabhu. The charges framed against Makhan was under sections 148, 302, 506 II IPC section 25(a) Arms Act. Against Dadhiram, charges framed were under sections 148, 302/149, 306(II)/149 IPC. 4. Appellant abjured the guilt. 5. Prosecution examined 24 witnesses. Of these, Kamal Singh (PW2), Baijnath (PW3), Darshan (PW10), Lajjaram (PW11) and Ramrati (PW17) were the eye witnesses. That Gar Singh (PW1), Matadin (PW6), Ramjilal (PW7), Ramesh (PW8), Shyamlal (PW14), Balbir Singh (PW15), Badri (PW16) and Shobharam (PW19) did not support the prosecution story. Dr. K.K. Shah (PW13) did the post-mortem. 6. The trial Court on the basis of the evidence on record disbelieved the prosecution story as to commission of offence by Kadam Singh, Kok Singh, Pappu alias Ramniwas, Prabhu alias Sadhu accordingly recorded their acquittal. And convicted present appellant (Dadhiram) with the aid of section 34 IPC of having exhorted Makhan to finish Kalicharan. This is evident from paragraph 48 of the judgment. That the acquittal of said 4 accused persons has not been challenged. 7. Learned Senior Counsel taking us through the FIR (Ex-P-2), testimony of Baijnath (PW3), Darshan (PW10), Lajjaram (PW11) and Ramrati (PW17) assails the finding arrived at by the trial Court against the appellant Dadhiram of having exhorted Makhan to finish Kalicharan. It is contended that the theory of exhortation lacks consistency and is a result of improvement and exaggeration in the dock statement. Reliance is placed on the decision in Jainul Haque v. State of Bihar [ AIR 1974 SC 45 ] and Uday Singh v. State of M.P. [2017 (3) JLJ 44] to bring home the submissions as to inconsistency in FIR version and the Dock version of the story. 8. Reliance is placed on the decision in Jainul Haque v. State of Bihar [ AIR 1974 SC 45 ] and Uday Singh v. State of M.P. [2017 (3) JLJ 44] to bring home the submissions as to inconsistency in FIR version and the Dock version of the story. 8. Learned counsel appearing for the State on his turn has to submit that the FIR lodged by the complainant Kamal Singh (PW2) report, two different sets of instances, viz, firstly, the appellant Dadhiram calling upon the complainant for a wrestling of his son Kadma with complainant's nephew Baijnath, on complainant's refusal he took ill of it and went away from the place uttering abuses and that he will see. It is urged that, in the second phase of the chain of happenings it is at the instigation of Dadhiram that the accused persons came armed with lethal weapon resulting in commission of the crime. It is contended that entire chain of happening indicates only one and sole fact that the Dadhiram is not only the creator of entire happenings but an instigator also. It is urged that the appellant is rightly held guilty with the aid of section 34 IPC. 9. Considered rival submissions and perused the entire record. 10. Close look at the FIR (Ex-P-2) lodged by the complainant indicates that it was the Dadhiram who went to the complainant to wrestle complainant's nephew with Kadma. On refusal, apparently, the appellant took ill of it and went to the house of the complainant after one hour along with co-accused armed with lethal weapons. The evidence of Baijnath (PW3), Darshan (PW10), Lajjaram (PW11) establishes the story as to the active role of Dadhiram in entire event which started at a public place and ended at the house of complainant. It is contended on behalf of the appellant that there is no consistency in the theory of exhortation. The said contention is on the basis of the FIR and dock statement of the complainant Kamal Singh (PW2). However, when the FIR is read in the context therein, it is apparent that there are chain of happenings which got initiated, instigated by the present appellant. There is no discernible discrepancy in the evidence of the complainant. The said contention is on the basis of the FIR and dock statement of the complainant Kamal Singh (PW2). However, when the FIR is read in the context therein, it is apparent that there are chain of happenings which got initiated, instigated by the present appellant. There is no discernible discrepancy in the evidence of the complainant. Since there is clear, cogent and reliable evidence as to the role of the appellant in abetting in the commission of crime, we perceive that the appellant is not benefited by the decision in Jainul Haque (supra), wherein it is held that unless the evidence in respect of exhortation is clean, cogent and reliable, no conviction for abatement can be recorded against the person alleged to have exhorted the actual assailant. The appellant is even not benefited by the decision in Uday Singh (supra), wherein their Lordships were relied upon the law laid down in Baladin and others v. State of U.P. [ AIR 1956 SC 181 ] that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he had done some thing or omitted to do some thing which would make him a member of unlawful assembly. 11. In the case at hand, evident it is from the material evidence on record that the entire event got initiated at the instance of present appellant, firstly, at a public place and thereafter, at the house of complainant within a time space of one hour where the assailants had gathered with lethal weapons. In view whereof, it cannot be said that the present appellant was not sharing common object with Makhan in the commission of offence in question. 12. In view whereof, we are of the considered opinion that the prosecution having proved the charge of murder levelled against the appellants and the trial Court having meticulously dwelt upon the same, the impugned conviction and the sentences thereof cannot be faulted with as would warrant any interference. 13. In the result, appeal fails and is dismissed.