Madhya Pradesh High Court
Batan Lal & Ors. vs The State Of M.P. Judgement Given By: ... on 28 November, 2013
Bench: A.K. Shrivastava, Vimla Jain
1 Cr.A. No. 1536/00
HIGH COURT OF MADHYA PRADESH JABALPUR
DIVISION BENCH:
Hon'ble Shri Justice A.K. Shrivastava &
Hon'ble Smt. Justice Vimla Jain
CRIMINAL APPEAL NO. 1536/2000
APPELLANTS: 1. Batanlal, son of Hajari Lal, resident of
Bhainsakhedi, P.S. Khajuri Sadak,
Bhopal.
2. Suresh, son of Batanlal, resident of Near
Hanuman Mandir, Bairagarh, Bhopal.
3. Mukesh, son of Batanlal, resident of
Bhainsakhedi, P.S. Khajuri Sadak,
Bhopal.
4. Raghuveer, son of Batanlal, resident of
resident of Bhainsakhedi, P.S. Khajuri
Sadak, Bhopal.
5. Santosh, son of Batanlal, resident of
Bhainsakhedi, P.S. Khajuri Sadak,
Bhopal.
Versus
RESPONDENT: State of Madhya Pradesh through P.S.
Khajuri Sadak, Bhopal.
Shri G.S. Ahuluwalia, learned counsel for the appellants.
Shri C.K. Mishra, Public Prosecutor for the respondent/State.
JUDGMENT
(28.11.2013) Per Justice A.K. Shrivastava:
Feeling aggrieved by the judgment of conviction and order of sentence dated 26.04.2000 passed by learned VI 2 Cr.A. No. 1536/00 Additional Sessions Judge, Bhopal in Sessions Trial No. 340/1998 convicting the appellants under Sections 148, 302/149 (two counts) and 323/149 IPC and thereby sentencing them to suffer imprisonment and fine with default stipulations as mentioned in the impugned judgment, the appellants/accused have knocked the doors of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
2. In brief the case of prosecution is that in Village Bhesakhedi, Leelakishan was living in his house along with his sons Kailash (first deceased) and Mitthulal (second deceased), Daulatram and with other family members. Nearby to his house, the house of accused persons is situated. But, the accused persons are not residing in it and they were residing in a newly constructed house. However, they used to visit often in their old house. It is also the case of the prosecution that four months earlier to the date of incident which is 16.7.1998 on the point of raising boundary Wall certain hot altercations took place between the complainant side and the accused persons as a result of which their relations become strenuous and they were not in talking terms. On the date of incident at 8.30 pm on account of sludge being accumulated, a slab of flag stone was kept by the complainant party in order to save them from the sludge which was being accumulated on account of rains. It is said that this made a cause for fifth appellant Santosh to quarrel with the 3 Cr.A. No. 1536/00 complainant party and he started hurling the abuses. Not only this, he also broke the stone slab which was kept there by the complainant party. On the same day in between 9.30 to 9.45 pm. when deceased persons and their brother Daulatram were taking meals, at that juncture all the accused persons having sword, knife and danda (stick) came there and by calling the names of both the deceased persons and their brother Daulatram scolded upon them by their names and were insisting them to come out from their house. They were further saying that today they will kill all the persons. Thereafter when all the three brothers (two deceased persons and their brother Daulatram) came out from the house, all the accused persons dealt blows by sword, knife to first deceased Kailash and second deceased Mitthulal and also caused danda blow upon Daulatram. Hariprasad and Sitaram who are the residents of that locality intervened in the matter and in between Aziz and Ashfaq also came there and thereafter all the accused persons ran away from the place of occurrence. Both the deceased persons were brought to Hamidia Govt. Hospital. The FIR was lodged by Daulatram in police station Khajuri on the basis of which a case was registered against the accused persons.
3. On lodging of the First Information Report, the criminal law was triggered and set in motion. The investigating agency arrived at the spot; sent the dead body of the deceased no.1 4 Cr.A. No. 1536/00 Kailash who died on the same day i.e. 16.7.1998 for post-mortem while upon death of deceased no.2 Mitthulal after one week sent his body for postmortem. The Autopsy Surgeon of the first deceased Kailash is Dr. Geeta Rani while that of second deceased Mitthulal is Dr. Arnit Arora. In furtherance to its investigation, the investigating agency prepared spot map; recorded the statement of witnesses as well as that of eye witnesses; seized the weapons which were by the accused persons at the time of commission of offence and sent them for FSL examination.
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 by the Trail Court for trial. The learned Trial Judge on the basis of the allegations made in the charge-sheet framed charges punishable under Section 148, 302 read with Section 149 (two counts) and 323/149 IPC against the accused persons. Needless to say all the accused persons abjured their guilt and stated that they have been convicted maladroitly. In order to bring home the charge, the prosecution examined as many as 17 witnesses and also placed Ex. P/1 to P/38, the documents on record. The defence of the accused persons is of false implication and the same defence they set forth in their statement recorded under Section 313 Cr.P.C. but they did not choose to examine any witness in 5 Cr.A. No. 1536/00 support of their defence.
5. The learned Trial Judge on the basis of the evidence placed on record convicted the appellants under Section 148, 302/149 IPC (two counts) and also under Section 323/149 IPC and passed different sentences which are mentioned in the concluding para of the impugned judgment of learned Trial Court.
6. In this manner, this appeal has been filed by the accused persons before this Court assailing the judgment of conviction and order of sentence.
7. The contention of Shri Ahuluwalia, learned counsel for the appellants is that first and third appellant namely Batanlal and Mukesh were not having any common object with the other co- accused persons to kill the deceased persons and if that would be the position, learned Trial Court has committed an error in convicting the appellants. Learned counsel submits that so far as causing injury to Mitthulal is concerned, the dying declaration Ex. P/38 was recorded by the Executing Magistrate R.S. Bhaskar. The deceased has firstly stated that Mukesh also dealt knife blow upon him, but immediately, he changed his version by saying that except appellant no.4 Raghuveer, all the accused persons caught hold of him while the fourth appellant Raghuveer dealt knife blows upon him. It is also submitted by him that if this dying declaration is kept in juxtaposition to that of FIR Ex. P/2, lodged by the eye witness Daulatram (PW-2) immediately after the incident at 10.30 6 Cr.A. No. 1536/00 pm, it would reveal that the name of Mukesh does not find place in the FIR. It has been stated that no doubt in his case diary statement recorded under Section 161 Cr.P.C. Ex. D/3, Daulatram (PW-2) is saying that the third appellant Mukesh was having a knife in his hands and he inflicted knife blows upon the abdomen region of the deceased but this statement has been stated by him in order to bring the case of third appellant to fit in the slot of postmortem report of the deceased Kailash Ex. P/20. Learned counsel thereafter submitted that the wife of the first deceased Kailash, Laxmibai (PW-1) although has stated that the third appellant Mukesh inflicted injury on the abdominal region of second deceased Mitthulal but this has not been so stated by the deceased in his dying declaration Ex. P/38.
8. By inviting our attention to the testimony of Hariprasad (PW-3) who is also an eye witness, learned counsel has submitted that he has not stated the presence of Mukesh in the scene. By inviting our attention to the evidence of other two eye witnesses namely Ashfaq (PW-4) and Azeez Khan (PW-5) it has been submitted that the statements of these two witnesses are inconsistent to each other because Ashfaq in his case diary statement Ex. D/4 has stated that Mukesh caused injury to first deceased Kailash by knife but it cannot be relied upon for the simple reason that this witness arrived in the scene along with Azeez Khan who did not say about the presence of Mukesh 7 Cr.A. No. 1536/00 although he is a hostile witness. Hence, it has been submitted by learned counsel that so far as the involvement of third appellant Mukesh in the offence is concerned, It becomes highly suspicious because the evidence of the prosecution is not certain and every witness is saying different versions about his involvement in the crime as well as about carrying the knife in his hand and also his presence in the scene.
9. By putting a deep dent upon the case of prosecution in regard to the first appellant Batanlal it has been submitted by him that even to remote extent, it cannot be said that he shared his common object to kill the deceased persons along with other co-accused persons for the simple reason that all the eye witnesses in singular voice are saying that he simply caused danda (stick) blow upon the back of the injured eye witness Daulatram (PW-2). It has also been put forth by him that eye witnesses are not saying that this appellant caused any injury upon any of the deceased and if that is the position, he be acquitted from the charge punishable under Section 302/149 IPC.
10. By inviting our attention to the evidence of the eye witnesses of the prosecution it has been submitted by him that the role assigned to other three appellants namely appellant no.2 Suresh, appellant no.4 Raghuveer and appellant no.5 Santosh, there is no incriminating evidence in order to hold that they have caused injury to the deceased persons and if that is the position, 8 Cr.A. No. 1536/00 the learned Trial Court has erred in convicting them for the charges punishable under Sections 302/149 IPC (two counts) and also under Section 148 and 323/149 IPC. Learned counsel submits that appellant no.2 Suresh, appellant no.4 Raghuveer and appellant no.5 Santosh are in custody since 25.7.1998 and 20.7.1998 respectively and they are in jail for more than 15 years. On these premises submissions, it has been submitted by learned counsel that this appeal be allowed and the impugned judgment of conviction and order of sentence be set aside and all the appellants be acquitted from all the charges.
11. On the other hand, Shri Mishra, learned public prosecutor argued in support of the impugned judgment and submitted that learned Trial Judge by considering the dying declaration of the 2nd deceased Mitthulal as well as the evidence of the eye witnesses vis-a-vis to each other has rightly came to hold that appellants have committed the offence and rightly passed different sentences and there is no need to interfere in the impugned judgment and, therefore, this appeal be dismissed.
12. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part.
13. In the present case, the prosecution has examined as many as six persons as eye witnesses, they are Laxmibai (PW-1), Daulatram (PW-2), Hariprasad (PW-3), Ashfaq (PW-4), Azeez 9 Cr.A. No. 1536/00 Khan (PW-5) and also Bharat Singh (PW-6) who is a hostile witness. Laxmibai (PW-1) is the wife of first deceased Kailash while Daulatram (PW-2) is the brother of both the deceased persons. Hariprasad, Ashfaq, Azeez Khan and Bharat Singh are the independent witnesses. But, Bharat Singh (PW-6) is a hostile witness.
14. In the present case, the incident has occurred on 16.7.1998 in between 9.30 to 9.45 pm and FIR Ex. P/2 was lodged at 10.30 pm which would mean that a prompt FIR was lodged by eye witness Daulatram who is not only injured but is the brother of the deceased persons. On going through the FIR Ex. P/2, we find that the name of Mukesh does not find place in it nor his presence has been shown having knife or any other weapon in his hand. When the author of the FIR Daulatram appeared in the Court as PW-2 although in the examination-in-chief he has said that the third appellant Mukesh dealt knife blow upon Kailash and also upon Mitthulal but when this fact was confronted to him in the cross-examination with the FIR, in para 7 he has specifically deposed that the factum of causing injury by Mukesh to first deceased Kailash was stated by him in the FIR but why this fact has not been written by the police in the FIR, he cannot say. According to us, this amount to material omission because if any clarification would have been given, he could have said that because on account of seeing the injury upon his two brothers 10 Cr.A. No. 1536/00 (deceased persons) he became perplexed and, therefore, he could not mention the names of appellant Mukesh in the FIR. Specifically, this witness is admitting in cross-examination that third appellant Mukesh did not cause any injury to deceased no.2 Mitthulal but it was dealt to first deceased Kailash. True, in the case diary statement of this witness which was recorded on 17.7.1998 the involvement of Mukesh in the scene has been stated by him and further it has been stated that he caused injury upon first deceased Kailash (Ex. D/3).
15. Normally, if in the FIR the name of an accused is not mentioned but, on the next day, his name is mentioned in the case diary statement, the Court should not pay any heed to it but looking to the facts and circumstances of this case and by paying heed that by the time the 161 Cr.P.C. statement could be recorded, the report of the postmortem of the first deceased Kailash was in the hands of the investigating agency and, therefore, according to us, in order to fit in the story of causing injury by knife by Mukesh in the slot of postmortem report of Kailash, his name has been mentioned in the case diary statement Ex. D/3 of Daulatram (PW-2). That apart, according to us, when the name of third appellant Mukesh was available with the investigating agency on 17.7.1998 only, there was no cause for it not to arrest him. On going through the arrest memo of this appellant we find that he was arrested on 26. 7.1998 and on that 11 Cr.A. No. 1536/00 date only the knife which is alleged to be used as weapon in the commission of the offence was seized from him but in the FSL report, Ex. P/34 no blood stains were found upon the knife.
16. So far as causing of injury to second deceased Mitthulal by third appellant Mukesh is concerned, second deceased Mitthulal in his dying declaration Ex. P/38 although has said that appellant no.4 Raghuveer and appellant no.3 Mukesh dealt knife blow upon him but immediately thereafter by exonerating Mukesh he said that only fourth appellant Raghuveer caused knife blow upon him while other co-accused persons caught hold of him. However, this story which we find in the dying declaration has not been stated by any of the eye witness and learned public prosecutor could not point out that how the story put forth in the dying declaration by second deceased Mitthulal Ex. P/38 tallies with that of the evidence of other eye witnesses including Daulatram (PW-2) who is the real brother of deceased persons and thus we are of the view that the involvement of third appellant Mukesh for causing injuries to any of the deceased or he shared any common object with other accused persons to kill the deceased persons becomes highly doubtful.
17. That, apart, Laxmibai (PW-1) who is the wife of the deceased Kailash in her examination-in-chief has stated that first appellant Batanlal and third appellant Mukesh were armed with danda (lathi). But by changing her version she has deposed in 12 Cr.A. No. 1536/00 para 3 of her examination-in-chief that the third appellant Mukesh dealt knife blow upon second deceased Mitthulal but this fact does not find place in the dying declaration Ex P/38 of the deceased Mitthulal.
18. The other eye witness is Hariprasad (PW-3). This witness has not at all stated the presence of Mukesh and on the limited point of involvement of Mukesh in the scene, he was also declared hostile. But in the cross-examination nothing has been carved out in order to hold that Mukesh was present in the scene according to this witness.
19. We have also gone through the testimony of another eye witness Ashfaq (PW-4) and we find that this witness has stated the presence of Mukesh and has also stated that Mukesh was having knife in his hand. Further he has deposed that he caused injury to first deceased Kailash by knife but this witness was accompanied with Azeez Khan (PW-5) who has totally denied the presence of Mukesh in the scene. On this point this witness was not declared hostile but on some other ground later on in respect of seizure of sword this witness was declared hostile and was cross examined by the prosecution on the limited point of seizure. Hence, according to us, when Ashfaq (PW-4) and Azeez Khan (PW-5) appeared in the scene together and their evidence is not certain to each other in regard to the presence of Mukesh, the presence of Mukesh for causing injuries to any of 13 Cr.A. No. 1536/00 the deceased or he shared any common object with other accused persons to kill the deceased persons becomes highly doubtful. That apart, the 161 Cr.P.C. statement of both these witnesses were recorded on 26.7.1998. Hence, according to us, the offence under Section 302/149 (two counts) IPC accorded by learned Trial Court to the third appellant Mukesh cannot be allowed to remain stand because the case of prosecution against him for the said charge is highly doubtful and, therefore, we hereby extend our benefit of doubt to him.
20. So far as the conviction of Mukesh sharing a common object with first appellant Batanlal to cause injuries to Daulatram (PW-2) is concerned, we find that there is overwhelming evidence of all the witnesses in that regard and, therefore, according to us, the learned Trial Court has rightly convicted him under Section 323/149 IPC. For the same reasons we do not find any fault in the judgment of the learned Trial Court convicting the other accused persons under Section 323/149 IPC for causing injury by lathi to injured Daulatram (PW-2). The sentences awarded to them by the learned Trial Court have already been suffered by them for this offence.
21. So far as the conviction of all the appellants under Section 148 IPC is concerned, according to us, in order to convict the accused persons, formation of unlawful assembly is pre- supposed because until and unless their is an unlawful assembly 14 Cr.A. No. 1536/00 as envisaged under Section 141 IPC, there cannot be any rioting under Section 146 IPC. Looking to the ambit and scope of Section 148 IPC we find that a person can be said to be guilty of committing offence under Section 148 if he is a member of unlawful assembly and is having deadly weapon in his hand. Since no charge has been framed under Section 147 IPC against the appellants, we hereby hold that conviction cannot be accorded under Section 148 IPC against any of the appellant, therefore, their conviction under this section is hereby set aside.
22. We shall now advert ourselves in regard to the role assigned to first appellant Batanlal. All the eye witnesses, the names of which we have mentioned hereinabove in their singular voice are saying that first applicant Batanala only gave injury by lathi on the back of the injured Daulatram (PW-2) and, he did nothing or shared his common object with other accused persons to cause death to the deceased persons. Hence, according to us, the conviction of the appellant no.1 Batanlal under Section 302/149 IPC is hereby set aside. However, he is held guilty for the offence punishable under Section 323/149 IPC. The sentence awarded to him by the learned Trial Court has already been suffered by him for this offence.
23. Now we shall pay heed to the conviction of the second appellant Suresh, fourth appellant Raghuveer and fifth appellant Santosh. We have gone through the testimony of all the aforesaid 15 Cr.A. No. 1536/00 eye witnesses and we find that all of them have stated that they were having sharp edged weapons and they caused injury to both the deceased by these weapons. Learned counsel for the appellants could not point out that how the testimony of eye witnesses is not reliable so far as causing of injuries by these three appellants to deceased persons is concerned.
24. At this juncture, we have also gone through the reasonings assigned by learned Trial Judge from different angles and we find that learned Trial Court did not err in placing reliance upon the evidence of aforesaid eye witnesses holding that these three appellants have caused injuries by the sharp edged weapons to both the deceased which also find place in the postmortem report of the respective deceased persons. Hence, we hereby hold that second appellant Suresh, fourth appellant Raghuveer and fifth appellant Santosh have committed the offence punishable under Section 302/34 IPC. Accordingly, they are convicted and are hereby directed to suffer life imprisonment. Needless to say, all the sentences shall run concurrently awarded to appellants no.2, 4 and 5. It has been informed that these three appellants have already suffered jail sentence for more than 15 years and this fact we find place in the concluding para of the impugned judgment.
25. The first appellant Batanlal was enlarged on bail by this Court on 8.8.2000 while appellant no.3 Mukesh was enlarged 16 Cr.A. No. 1536/00 on bail by this Court on 25.9.2000. They shall now need not to surrender. Their bail bonds stand discharged.
26. For the reasons stated hereinabove, this appeal succeeds and is hereby allowed in part to the extent indicated hereinabove.
(A.K.Shrivastava) (Smt. Vimla Jain)
Judge Judge
rao