Madhya Pradesh High Court
Kumersingh And Ors. vs State Of Madhya Pradesh on 11 December, 2006
Equivalent citations: 2007(4)MPHT585
JUDGMENT S.L. Kochar, J.
1. The appellants named above being dissatisfied by the judgment dated 4-8-2003 rendered by the learned Special Judge, Shajapur in Special Criminal Case No. 233/2002 thereby they have been convicted and sentenced as under:
Appellants Conviction & Sentence
Jagdish Under Sections 148, 449/149, 302/149, 325/149 (on
four counts) and 323/149, IPC (on 9 counts) sentenced
to R.I. for one year, R.I. for 5 years with fine of
Rs. 500/-, in default of payment of fine to suffer R.I.
for 3 months, Imprisonment for life with fine of
Rs. 1,000/-in default of payment of fine to suffer
Addl. R.I. for six months, R.I. for 3 years with fine
of Rs. 250/-, in default of payment of fine to suffer
R.I. for two months and R.I. for six months respectively.
Kumersingh Under Sections 147, 449/149, 302/149, 325/149 (on 4 counts) and 323/149, IPC (on nine counts), sentenced to
R.I. for one year, R.I. for 5 years with fine of Rs. 500/-,
in default of payment of fine to suffer R.I. for three
months, imprisonment for life with fine of Rs. 1,000/-, in
default of payment of fine to suffer R.I. for six months,
R.I. for 3 years with fine of Rs. 250/- in default of
payment of fine to suffer R.I. for 2 months and R.I.
for six months respectively.
Mahesh - do -
Siddhulal - do -
Gendalal - do -
Mangilal - do -
Rameshchandra - do -
Mangilal s/o Devaji - do -
Premsingh - do -
Santosh - do -
Hemraj - do -
Bharasingh - do -
Kailsh - do -
Makhansingh - do -
Elamsingh - do -
Chander Singh - do -
Ramesh s/o Sarlal - do -
Premsingh s/o Amarsingh - do -
Mohansingh - do -
Santosh - do -
Indersingh - do -
Babalu - do -
Omprakash - do -
Rakesh - do -
Mangilal s/o Bholaram - do -
Jagdish s/o Hiralal - do -
All the substantive sentences are directed to run concurrently.
2. Here it would be pertinent to mention that in all 33 accused persons were prosecuted and tried for the aforesaid offences, but out of 33 accused persons 26 have been convicted and sentenced and they have preferred this appeal.
3. Tersely, the facts of the prosecution case as unfolded before the Trial Court are that in the year 2002, the State Government had given some lands in Village Latahedi, situated by the side of the bank of river, to the members of Scheduled Caste, on Patta and possession thereof also was given to them. The respective Patta holders of the lands sown crops on the said lands. The residents of that village belonging to Brahmin, Yadav and Rathore communities were displeased on account of allotment of the said lands to the members of the Scheduled Caste, because their way to take their cattle to the river for water and the way to cremation ground was obstructed. The administrative officers attempted to pacify, but that exercise proved to be futile. On 12-8-03 in the head-man-ship of Sarpanch Kumersingh, the residents of the village 30-32 in number, armed with guns and lathis along with their cattle went to the lands so allotted on Patta at 9.00 AM and got the sown crop destroyed by the cattle. At 10.00 AM some people went to the houses of the Patta Holders and first of all dragged out one Ghisalal from his house and assaulted him by lathi. When his son Arjun and wife Leelabai came to his rescue they too were assaulted. Thereafter, they went to the house of Bhagirath and damaged his house. There they also assaulted the daughter-in-law of Bhagirath named Antarbai. Thereafter they went to the house of Amarsingh and assaulted his wife Bulibai and daughter-in-law Leelabai and damaged the roof tiles of his house. They also assaulted Ganpat, his wife Bhagwatibai, Kalabai w/o Banesingh, Mangilal, Gokulbai, Suganbai and also damaged their houses. Arjun went to the Police Station Talen and lodged the report Exh. P-1 whereupon police registered Cr. No. 139/2002 under Sections 307, 147, 148, 294, 452 and 323/149 of the IPC as also under Section 3(1)(x) and 3(2)(v) of the SC & ST (Prevention of Atrocities) Act against the accused persons. While taking Ghisalal to the Hospital, he succumbed to the injuries whereupon Merg No. 18/02 was registered at P.S. Rajgarh and after preparing the Inquest report by police. Dr. R.C. Bansiwal conducted post-mortem and its report Exh. P-23.
4. Dr. R.B. Boriwal (P.W. 30) examined injured Bhagirath, Mangilal, Antarbai, Leelabai w/o Ghisalal, Leelabai w/o Banesingh, Kalabai, Ganpat, Arjun, Bhagwatibai, Dhansingh, Amarsingh, Leelabai, Gokulbai, Suganbai and Bulibai. Their MLC reports are Exhs. P-87, P-89, P-90, P-91, P-92, P-93, P-94, P-95, P-96, P-98, P-99, P-100, P-101, P-103 and P-104 respectively. However, Ganpat was not found to sustain any injury. The X-ray reports of Bhagwatibai and Gokulbai are Exhs. P-97 and P-102 respectively.
5. Sub-Inspector Premnarayan Soni seized the blood stained clothes from injured and on disclosure statement of the accused persons seized a 12 bore gun along with its licence. After the arrest of the accused persons, respective weapons were also seized from them which were sent to the Forensic Science Laboratory for examination together with blood stained clothes. Exh. P-63 is the spot map prepared by the Patwari. After necessary investigation, charge-sheet was filed against the accused persons before the Court.
6-7. The accused/appellants denied the guilt. Their defence was that they have been falsely implicated due to political rivalry. The Government allotted the land to the deceased Ghisalal and his family members against which the villagers, lodged their grievance and on account of this they have been falsely roped in. It has been suggested to the eye-witnesses in their cross-examination that village grazers were taking cattle to the river and they were stopped by the complainant party and pelted stones. At that moment they had also pelted stones and because of which the members of the complainant party also sustained injuries. In order to establish its case, the prosecution examined as many as 33 witnesses. The accused persons did not examine any witness in their defence. The learned Trial Court, finding the appellants guilty, convicted and sentenced them as indicated hereinabove.
8. Learned Counsel for the appellants have submitted that they eye-witnesses have adopted the method of pick and choose. They have given clean chit to the seven acquitted co-accused persons out of 33 and that the First Information Report (Exh. P-1) was prepared afterwards and not as shown by the prosecution on the date and time. This argument is put forth on the basis of non-mention of the names of the accused persons in the merg intimation report prepared as per provision under Section 174 of the Cr.PC and medical requisition forms of the deceased and injured prosecution witnesses who are in total 13 in number and no evidence is led by the prosecution to prove the compliance of Section 157 of the Cr.PC regarding sending of the copy of merg intimation and FIR to the concerned Magistrate and it is not possible for a person to remember the full name with father's name as mentioned by the author of the First Information Report, i.e., Arjun (P.W. 1) and that the incident did not take place in front of the house of deceased Ghisalal, because there was no seizure of blood stained earth from the spot. According to the learned Counsel, the whole incident occurred on the patta land and not in the village and the prosecution examined all interested and partisan witnesses. On their testimony no implicit reliance could be placed and the witnesses have not assigned specific overt act.
9. To combat with, the learned Dy. Advocate General Shri Desai supported the judgment and finding arrived at by the learned Trial Court. He has also specifically submitted that there is no requirement of law to mention the names of the accused persons in the merg intimation report, inquest report and the medical requisition forms. He has also submitted that the names of some of the accused persons with others are mentioned in all these documents. He also submitted that it is a case of mob furry and several persons involved in assaulting the deceased and as many as 13 witnesses of Scheduled Caste community on account of Patta of village land granted in their favour, by the appellants. Therefore, it was not possible for the witnesses to give specific account of individual accused.
10. Having heard learned Counsel for the parties and after perusing the entire record carefully, we are of the considered view that the prosecution has successfully proved its case before the Trial Court against the present appellants. The only question for determination before us is as to what offence would be made out against the appellants who all were the members of unlawful assembly for the reasons mentioned hereinafter.
11. In the instant case, one person Ghisalal has died and three eye-witnesses namely Arjun (P.W. 1), Leelabai (P.W. 26) and Dhansingh (P.W. 27) sustained injuries caused by the appellants. Their medical reports are Exh. P-95, P-92 and P-98 respectively apart from other injured in the same transaction of the incident. There is also fourth eye-witness named Babulal (P.W. 28). All the three injured eye-witnesses were medically examined by Dr. R.B. Goyal (P.W. 30) who proved their medical reports. Eye-witness Leelabai (P.W. 26), wife of Ghisalal suffered four injuries caused by hard and blunt object and on X-ray examination vide Exh. P-91 fracture of ulna bone of left hand was found. Eye-witness Arjun (P.W. 1) sustained four injuries, Le., swelling 7 x 4 cm left side of face, lacerated wound on right ring finger, two contusions on right small and middle fingers and contusion 20 x 2 cms on left scapula region. Dhansingh (P.W. 2) received seven injuries, lacerated wound on left parietal region 4x1x1/2 cms, contusion 10x2 cms and 7x2 cms on left arm, swelling on left arm, contusion 7x2 cms on right arm another contusion 8x2 cms on right thigh and abrasions 2x2 cms on right leg. All these witnesses and other 10 injured witnesses were also examined by the same Doctor on the very day of the incident, Le., 12-8-2002 in the evening.
12. Now we advert to the testimony of eye-witnesses about assault on deceased Ghisalal. Arjun (P.W. 1) has deposed that he was knowing all the accused persons who were put on trial. According to him, on the date of incident at 10.00 AM his mother Leelabai (P.W. 26) came to his house in a frightened condition from the side of the field. He over heard the war cry made by the accused persons because of which under fear they entered inside the house and closed the door. The present appellants and other co-accused persons reached at his house and started breaking roof tiles. Appellant Jagdish s/o Kumersingh was having a gun and rest were having lathis. The fourteen accused persons dragged out his father deceased Ghisalal from the house and fifteen persons started assaulting him by lathis. Thereafter all the accused persons also started assaulting his father. When his mother Leelabai (P.W. 26) and Dhansingh (P.W. 27), brother tried to rescue his father, they, all the three were also badly beaten by the appellants. After their beating by the accused persons, accused persons went away in the colony situated behind his house. In cross-examination, Para 13, he has admitted that the villagers of his village belonging to chamaar and balai communities, were carrying on agricultural and labour work. They all were having good relations with the villagers and visiting terms on social functions. They were also having money transactions, but after grant of patta of lands in their favour, villagers were jealous with them. The lands were situated at the bank of Nevaj river. In Para 18, he has admitted that before seven days prior to the incident, SDM had a talk with all the villagers and the villagers made a complaint for approach way to take their cattle to river as well as to the cremation ground. The SDM made the provision for this purpose. The villagers were allowed to use the way going by the side of the field of Amarsingh and Ghisalal Chamaar. In Para 23, he admitted that none of the accused persons was having farsa (sharp object edged iron object) and about 30 accused persons were having lathis and assaulted them. He was confronted with the FIR (Exh. P-1) and his statement (Exh. D-1) regarding omission that 15 persons mentioned in the examination-in-chief para three entered inside the house and dragged out his father, deceased Ghisalal and started assaulting him. According to this witness, he mentioned this fact in the FIR as well as in his case diary statement (Exh. D-1) and if the same are not mentioned, he could not assign any reason.
13. This witness has admitted lodging of the report on the same day (Exh. P-1) at 11.30 a.m. recorded by Sub-Inspector S.C. Bohit (P.W. 25). The say of this witness is also that all the injured persons went in a police lorry were also medically examined the same day. He denied the defence suggestion of not lodging the report immediately and preparation of false report after two days.
14. Leelabai (P.W. 26), the next eye-witness, wife of Ghisalal has deposed that she was knowing all the accused persons. They belongs to her village. Out of 33 accused persons five were not present and rest came towards her house. The appellant Jagdish was having a gun with him. Ramesh and Bholaram were having farsi and remaining were possessing lathis, appellant Kumersingh Sarpanch was exhorting the other accused persons saying to thrash them (NIPTA DO), the holders of the lease deed. Thereafter, 14 accused persons brought out her husband from the house and except five accused persons, remaining assaulted her husband. She, her son Arjun (P.W. 1) and Dhansingh (P.W. 27) were also assaulted by the accused persons when they tried to save Ghisalal. After assaulting them, the appellants fled away and the prosecution injured witnesses Antarbai, Bhagirath, Kalabai, Amarsingh Balai, Bulibai, Leelabai, Mangu Balai, Ganpatlal, Bhagwatibai, Suganbai and Gokulbai reached over there. They all were injured and informed to each other of their being beaten by Kumersingh with his associates. Arjun (P.W. 1) went to the police station for lodging the report. Thereafter police reached in the village and took all the injured persons. Her husband died on the way. They all were medically examined in Rajgarh Hospital. In cross-examination, Para 27, this witness has denied the defence suggestion that accused persons pelted the stones on their group and they also pelted stones on them because of which, they sustained injuries. It is pertinent to mention here that none of the accused persons has suffered even a single scratch whereas from the complainant side one person lost his life and 12 persons sustained number of injuries out of them four to five persons sustained grievous injuries. More or less same kind of statements with some difference have been given by eye-witnesses Dhansingh (P.W. 27) and Babulal (P.W. 8).
15. The learned Trial Court in Para 50 of the impugned judgment has rightly held, looking to the omission in the FIR and case diary statements of the eye-witnesses that there is no dependable evidence on record to hold as to who were the accused persons, entered inside the house and brought out the deceased Ghisalal.
16. We do not find any legal force in the argument of the learned Counsel for the appellants that in view of the nonmentioning of all the names in inquest report, medical requisition form, FIR (Exh. P-1) was drawn afterwards on due consultation and deliberations. The Supreme Court in the recent judgment of Radha Mohan Singh v. State of U.P. , has held after taking note of all the earlier decisions on the point that in inquest proceedings as per provision under Section 174 of the Cr.PC mentioning of names of assailants, use of weapon, name of the eye-witnesses and details as to how the deceased was assaulted, are not at all germane to the inquest proceedings and observed in Para 15 as under:
...Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited viz., to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eye-witnesses or the gist of their statements, nor is it required to be signed by any eye-witness. In Meharaj Singh v. State of U.P., the language used by the legislature in Section 174, Cr.PC was not taken note of, nor the earlier decisions of this Court were referred to and some sweeping observations have been made which are not supported by the statutory provision. We are, therefore, of the opinion that the observations made in Paras 11 and 12 of the reports do not represent the correct statement of law and they are hereby overruled. The challenge laid to the prosecution case by Shri Jain on the basis of the alleged infirmity or omission in the inquest report has, therefore, no substance and cannot be accepted.
17. The next facet of the argument of the learned Counsel that the witnesses adopted the method of pick and choose and, therefore, they should not be relied upon for the present appellants. On consideration, we do not find support to this contention by law. The principle of "falsus in uno falsus in omnibus" (false in one thing false in everything) is not applicable in India. It is merely a rule of caution and not a mandatory rule of evidence. The Supreme Court in the case of Ram Udgarsingh v. State of Bihar , and in the case of Gubbala Venugopala Swamy and Ors. v. State of Andhra Pradesh A.I.R. 2004 SC 2477, has held as under:
That even if a major portion of evidence of a witness is found to be deficient, in case the residual is sufficient to prove the guilt of an accuses, notwithstanding acquittal of a number of other co-accused persons, conviction can be maintained. The duty of the Court is to separate the grain from the chaff and appreciate in each case, as to what extent the evidence is worthy of acceptance.
18. The learned Counsel for the appellants also raised a question about genuineness of the FIR because of mentioning of the names of all the accused persons with their father's name. On due consideration, we do not find any improbability on this issue. The witness Arjun (P. W. 1) was the resident of same village and was acquainted with the accused persons. It has come in cross-examination that they were having visiting terms and also money transactions. In the instant case, all the appellants not only assaulted the deceased but assaulted Arjun, leelabai and Dhansingh in front of their house and also assaulted about 10 persons in the same locality. This shows that the movement of accused persons was continued for a long time, therefore, the witnesses had sufficient opportunity to see and identify the accused persons.
19. Now the crucial question before us to determine is whether all the appellants were members of unlawful assembly and had the common object to commit murder of Ghisalal or being members of unlawful assembly knew that there was likelihood of commission of murder of Ghisalal and in prosecution of such common object, assaulted the deceased Ghisalal.
In this connection, it is necessary to advert to the evidence of Dr. R.C. Bansiwal (P.W. 11) who conducted the postmortem examination the body of the deceased and proved the report (Exh. P-23) in the Court. This witness found five external injuries and all the injuries were on right and left hands, legs. Out of these injuries, three were contusions and two were punctured wounds. Puncture wounds were of the size 1/4" x 1/8" on right upper arm and second puncture wound was also of the same size on left palm. There were fracture of right femur bone of thigh, left tibia fibula bones, fracture of right humerus bone and fracture of left metacarpal bone. There was no external or internal injury to any vital part of the body of the deceased. In the opinion of medical expert, the deceased died because of shock due to multiple fractures and bleeding, within 12 hours from the date and time of post-mortem examination, i.e. 12-8-2002 at 5.30 p.m. The Doctor has nowhere stated that the injuries sustained by the deceased individually or cumulatively were sufficient in the ordinary course of nature to cause death. Out of five injuries, none could be caused by Farsi, a sharp edged heavy iron made cutting object which normally causes incised injuries. Looking to the dimensions of the punctured wounds, it appears that some of the appellants were having sticks with a little iron nail (KEEL) on its one end which are generally kept by the ploughman for driving the bullocks. According to the eye-witnesses account of causing injuries to the deceased Ghisalal and others in all 13 injured witnesses, none had sustained injuries caused by dangerous weapon. Some of the witnesses have stated that the accused persons were having Farsas, but looking to the medical evidence and the medical reports of all the injured persons, it is crystal clear that Farsa was not used. The appellant Jagdish was having a gun with him, but the same was also not used. If the appellants were having any intention to commit murder of deceased Ghisalal, they could have used these dangerous weapons.
20. On over all assessment and appreciation of the statements of all the 13 injured witnesses namely, Bhagirath (P.W. 2), Antarbai (P.W. 3), Kalabai (P.W. 4), Bhulibai (P.W. 5), Amarsingh (P.W. 12), Mangilal (P.W. 13), Lilabai (P.W. 14), Ganpatlal (P.W. 15), Dhulji (P.W. 16), Gokulbai (P.W. 19), Bhagwatibai (P.W. 20), Suganbai (P.W. 21) and Lilabai w/o Ghisalal (P.W. 26), we are of the considered view that the appellants formed an unlawful assembly whose common object was to give good beating to the opposite faction and the dispute arose on account of way to taketheir cattle to river and way to cremation ground. There was no common object of the unlawful assembly to commit murder of Ghisalal and because of using the number of weapons, it could not be said that the members of unlawful assembly were knowing about likelihood of murder of Ghisalal.
21. On perusal of the statements of the eye-witnesses, we do not find sufficient material to hold that the appellants assaulted the complainant party on the ground that they belonged to Scheduled Caste community [See Section 3(ii)(v) of the Scheduled Castes & Scheduled Tribes (Prevention of Atrocities) Act, 1989]. The dispute arose only on account of way to the river and cremation ground being obstructed.
22. The total position boils out from the evidence available on record that the appellants, after forming unlawful assembly had the common object to cause grievous hurt or having knowledge of likelihood of causing grievous injuries to the deceased and other injured persons and in prosecution of said object, they assaulted the deceased and other injured persons, causing grievous injuries by hard and blunt object, to deceased and other four injured persons and simple injuries to remaining nine persons.
23. Resultantly, this appeal is allowed in part.
24. The conviction and sentences of all the appellants for the offence under Sections 449/149, 302/149, IPC and Section 3(2)(v) of the SC & ST (Prevention of Atrocities) Act, 1989 are hereby set aside. Instead, they are convicted under Section 325 read with Section 149, IPC on five counts including deceased (Ghisalal) and each of the appellants is sentenced to suffer R.I. for three years and fine of Rs. 250/-, in default of payment of fine to suffer addl. R.I. for two months. Their conviction under Section 323/149 as well as Section 147, IPC are hereby affirmed. The conviction and sentence of the appellant Jagdish under Section 148, IPC is also affirmed. Each of the appellants is also sentenced to suffer R.I. for six months under Section 323/149, IPC (on nine counts). All the substantive sentences are directed to run concurrently. The appellants are on bail. They are directed through their Counsel to appear before the Trial Court on 23-1-2007 for depositing the amount of fine, if not already deposited and the learned Trial Court is directed to send the appellants to jail for serving out the remainder part of their jail sentence, if any. On failure to comply with the aforesaid direction by the appellants, the learned Trial Court shall take appropriate legal proceedings against them under intimation to this Court. On their surrender, their bail and surety bonds shall stand cancelled.