Madhya Pradesh High Court
Ram Sewak And Ors. vs State Of M.P. on 22 April, 1998
Equivalent citations: 1999CRILJ2844
Author: R.P. Gupta
Bench: Rajeev Gupta, R.P. Gupta
JUDGMENT R.P. Gupta, J.
1. The appellants challenge their conviction for offence punishable under Section 302/34, I.P.C. in S.T. No. 67/82 vide judgment dated 24-2-86 of Addl. Sessions Judge, Shahdol. The trial Court has found that these accused, in pursuance of their common intention, committed murder of Vipin Shrivastava on 22-6-82 at about 9 p.m. in village Chachai in the area of P.S. Amlai Distt. Shahdol.
2. Apart from these appellants there was a fourth accused Ramashraya on whom the charge was of instigating the other accused to commit this murder. He has been acquitted of that charge.
3. The prosecution case was that the deceased and the accused were employees of M.P.E.B. at Chachai. The deceased was an activist of I.N.T.U.C. union and the accused were members of Janta Union. Both unions were formed by the employees of the M.P.E.B. The background of this murder was that Vipin agitated in a legal manner against the management on behalf of I.N.T.U.C. union for certain demands of the employees and also organised strike. He succeeded in getting certain demands accepted by the management. On this issue the other union i.e. Janta Union was feeling let down in its popularity. There developed an atmosphere of tension between the 2 unions on this count. In this atmosphere on the night of the incident deceased Vipin, Budhesan (P.W. 14) Badriprasad (P.W. 15) were present in the area of Chachai market to take tea. They were present near a shop known as Mewa Sweet Mart and were talking to one another. At that moment the appellants reached there and Sharda collared Vipin and others dragged him to the ground. Then all these accused attacked with knives on his chest and abdomen. The fourth accused (acquitted) was allegedly instigating them. These accused escaped after so assaulting the deceased. Witnesses Budhsen, Badri, Naresh and S.P. Shrivastava took Vipin to the M.P.E.B. hospital but within some moments he breathed his last. P.W. 14 Budhsen lodged the F.I.R. Ex. P. 11 at police post Chachai at 9.30 p.m. on 22-6-82 itself which was marked to P.S. Amlai and on that basis formal F.I.R. was recorded at P.S. Amlal on 23-6-82 at 9 a.m. The inquest (Panchnama) Ex. P-3 A was prepared by Police in the presence of the witnesses and the body was sent to autopsy surgeon for post mortem examination at primary Health Centre Dhanpuri. P.W. 1 Dr. Patel conducted the autopsy and found the following injuries :--
i. One stabbed wound over posterior auxiliary fold left side, thorax -- stabbed wounds two over pericardium, two over right chest wall and these wounds were leading to puncture of thoracic cavity and Effusion of blood into thoracic cavity, over the pericardium, two stabbed wounds were present, and over the heart two stabbed wounds over left ventricle of the heart, one on the anterior surface and one on the interior surface of the left ventricle 1/2 proximal to apex. Rest of the organs were normal.
ii. Multiple stabbed wounds eleptical in shape 1/2 size over the body, two over the pericardium, two over right chest wall, one in the first intercoastal space in the mid clavicular line and second in the 2nd intercoastal space 1/2" right lateral to mid-line. Over the pericardium one in the fifth intercoastal space in the left side, two inches lateral to mid line, two wounds in the third intercoastal space 2" above and medial to nipple, one in the area of sternal notch, one in the posterior auxiliary fold at lateral end of spine of scapula, one stabbed wound over the left iliac fossa.
Out of all, one wound of the fifth intercoastal space over the pericardium had punctured to chest wall and produced stabbed wound at apex of the heart leading to two stabbed wounds on the left ventricle of the heart, one anterior surface and one on interior surface leading to effusion of blood and the whole thoracic cavity was filled with blood. The stabbed wound over the left iliac fossa had punctured to abdominal wall, but there was no injury to intestine. Depth of the wound 2" from the chest wall and half an inch over the abdominal wall.
The injuries were found sufficient in the ordinary course of nature to cause death and were caused within 24 hours of the autopsy.
The doctor found the following cuts on the shirt and baniyan of the injured :-
Cuts due to stab injury four in number against pericardium 2" size one at the level of left iliac fossa similarly, as were found over the body and in addition one cut was present just medial to sleeve of the shirt left side of the hand. Shape of the cuts over the baniyan were linear, and over the shirt L-shaped, three buttons of shirt were broken and separated from the shirt.
Ex. P. 1 is the Doctor's report, written and signed by him. It bears the doctor's signature A to A.
4. In the F.I.R. these appellants were named as actual assailants. However, Ramsewak could be arrested on 23-6-1982, Sharda on 27-6-1982 and Mohan on 3-8-1982. From Ramsewak, a Shirt (Article A) was taken into possession and sealed. It was sent to F.S.L. and was found to be having blood stains on it. A shirt and handkerchief of Sharda were also seized but that seizure is of no consequence from the angle of evidence.
5. The prosecution had also relied on oral dying declaration made to some witnesses. This was only narrated in evidence of Swamidin (PW 8) but did not find mention in his statement before Police. So it was rejected as a piece of reliable evidence by the trial Court.
6. The trial Court has based its findings of the guilt of accused mainly on the eye witness account of P.W. 14 Budhsen, P.W. 15 Badri, and account of P.W. 8 Swamidin who saw the accused running away with knives when he heard shrieks of 'Mardala', and of P.W. 9 Devideen before whose shop the incident had taken place. This witness had been projected as eye-witness, but he only partly supported the prosecution case and was cross-examined by the public prosecutor. He denied having seen the stabbing or having narrated the stabbing to the police. According to him, the deceased and witnesses Budhsen and Badri had taken tea at his shop and then Sharda accused came and grappled with Vipin and so grappling, they moved towards Pan Thela and then he heard shrieks of Badri witness 'Bachao Bachao'.
7. The prosecution had examined 17 witnesses in all. P.W. 1 Dr. Patel is the autopsy surgeon. P.W. 2 is the constable who had taken the dead body to the autopsy surgeon, P.W. 3 Vikramaditya A.S.I. who recorded formal F.I.R. at P.S. Amlai on 23-6-82 On the basis of report from P.B. Chachai, P.W. 11 is Sadhuprasad A.S.I., of Police Post Chachai who recorded the diary entry Ex. P. 11 on statement of Budhsen and sent it to P.S. Amlai. He obtained the bedhead ticket of deceased from the hospital. P.W. 4 Shrawan, P.W. 10 Ramnaresh and P.W. 16 Baldev are witnesses to Panchnama of the dead body and also to seizure of various articles from the scene of crime. P.W. 5 Chhotelal is witness to seizure of shirt (Article A) of Ramsewak. Budhsen is his brother. P.W. 6 Balkrishna is a witness of seizure of various articles i.e. blood stained earth, controlled earth, one blue button and key of cycle, one Lantern and one chain from scene of crime.
8. P.W. 14 and P.W. 15 have supported the prosecution case that all these 3 appellants stabbed the deceased. They are eye-witnesses to the stabbing of deceased.
9. The case of the appellants in their statements under Section 313, Cr. P.C. is of total denial. They denied their presence on the spot or their participation and alleged false implication. They examined 5 defence witnesses also. D.W. 1 and D.W. 2 are Divisional Engineers of MPEB. According to DW 1 Budhsen was on leave from 23-6-1982 to 26-6-1982 and Badriprasad was not their employee. According to DW 2 Chhotelal (PW 5) was a muster roll employee and was working on 22 and 23rd June, 1982 at Birsinghpur. DW 3 is the reader (Criminal) of the Court of Civil Judge, Class-II, Budhar. According to him, in the file of FIR of year 1982, there was no copy of FIR of case'No. 237/82 of P.S. Amlai pertaining to June 1982. He admitted that these copies are not entered in register after receipt and he could not say if copy of this report was received and kept somewhere. He further narrated that these appellants were accused in 2 other cases which are under trial. These are Criminal Case Nos. 552/82 and 543/82. D.W. 4 was incharge of P.S. Amlai from 2-6-1982 to November 1982. According to him, the case property of this case was sent to FSL vide Ex. P. 20 which does not mention about knife. He did not investigate this case at all. D.W. 5 is another Divisional Engineer at Chachai. According to him on 23-6-82 one B.P. Tiwari was on duty at Chachai as Peon and that duty timings of peons remain from 9 a.m. to 5-6 p.m. with one hour break for lunch which is not at fixed time. D.W. 6 is Dr. Pravin Kumar who was working in MPEB Hospital Chachai in June 1982. He proves that bead hed ticket was scribed by his wife who was also a doctor in that hospital. Whatever injuries were found on the body of Vipin were recorded by her. By the time he (this witness) reached the hospital the injured had expired.
10. The trial Court has, on a detailed analysis of the evidence of these witnesses and surrounding circumstances, concluded that the evidence of Budhsen (PW 1.4) and Badri Prasad Tiwari (PW 15) is credible, that they were present with Vipin Kumar Shrivastava deceased and the three accused appellants attacked Vipin Kumar with knives causing his death. This act was committed by them near the sweet shop known as Mewa Sweet Mart and a 'Panthella'. Their testimony was found corroborated by medical evidence which showed the knife injuries on various parts of the body of the deceased. The presence of these witnesses at that spot was found natural and the fact that these witnesses were members of a particular union of workers namely INTUC while the accused persons were members of Janta union made no difference to the reliability of the two witnesses. The FIR corroborated the witness Budhsen. It was found that their conduct was in no way unnatural nor contradictory to their statements in Court. Their statements to Police were found to be not delayed. It was found that there was sufficient light at the spot of assault on the deceased so as to enable the witnesses to see the stabbing. Their testimony was found to be further corroborated by the testimony of Swamidin who saw the accused running away with arms from that spot when he heard the shrieks of 'Mardala', although he did not see the actual stabbing. Similar supportive evidence was found in the testimony of Devideen, Sweet Corner owner. The trial Court has observed that there was at worst marginal omissions in the statements of these witnesses in comparison to the testimony in Court. Thus for example in evidence, there was no mention of Sharda or any of the accused having abused the deceased, but in evidence Budhsen (PW 14) speaks of Sharda accused having abused Vipin Kumar by exhorting 'Pakdo, Madar Chod Ko Bahut Neta Banta Hein'. This omission at worst is marginal in nature and did not effect the core of the testimony of the witnesses. The witness Swamidin had admitted that on hearing shrieks, he rushed to the spot and found Vipin lying injured and the accused running away. He also stated that along-with him David and Naresh Jaiswal had also rushed to that spot, but David and Naresh Jaiswal were not produced as witnesses in Court and similarly one Naresh who was running a pan-shop nearby was not examined in Court, as a witness. So this omission was pressed by the defence as an infirmity in evidence by keeping away important witnesses. The trial Court further found that non-examination of these witnesses makes no dent on the credibility of the witnesses Budhsen, Badriprasad Tiwari, Swamidin and Devideen. It is not the number of witnesses examined which matters, but the evidentiary weight of testimony of the witnesses examined. If they are truthful and reliable mere non-examination of other witnesses, of similar nature, makes no difference. At best these witnesses who were not produced might have seen the accused running away as was seen by Swamidin. So it does not make a dent in the eyewitness testimony of Budhsen and Badriprasad. The fact that Budhsen and Badriprasad did not intervene at the time of attack was not found to be derogatory to the credibility of the witnesses as there is every apprehension of they being attacked similarly. After all they were unarmed. The accused were known to the witnesses from before. The fact that there was light near the spot of the incident is also established by the site plan prepared, on an inspection of the site. It shows an electric pole about 14 metres from the spot where the body was lying. The factum of presence of light was mentioned in the FIR, being there, as well as narrated by the witnesses.
11. The trial Court found no substance in the plea of accused that Janta union members had demonstrated against Police in the case of death of Juggu Sarangia in Police custody while INTUC union had kept quiet in that incident and so the Police was inimical to members of Janta Union (which the accused were) and so the Police has created evidence to rope them in this murder. The trial Court found that these arguments were without any substance. The so called police officers, who might have been responsible for death of Juggu Sarangi were no longer in Police station and there was no reason for them to falsely implicate these accused only. The trial Court has also found established that from the body of Ram Sewak accused, his shirt was seized by Police on the next day of incident and it was found to be stained with blood although the origin of blood had not been established. This was found as a corroborative circumstance. The trial Court has also found that the motive of the accused in killing the deceased has not been established beyond doubt although his motive has been suggested about inter union rivalry, but this absence of motive creates no weakness in the prosecution case as in criminal case, this motive remains in the mind of the accused and may not sometimes be revealed. When there are credible witnesses to the crime, absence of motive makes no difference. The trial Court has found that these 3 appellants/accused reached the spot together armed with knives, they attacked the deceased together and acted jointly in pursuance of their common intention. So they were found guilty of committing murder in furtherance of their common intention.
12. The learned Counsel for appellant has practically raised the same points again before us as were raised before the trial Court. The main argument is that the testimony of Budhsen and Badriprasad is insufficient to base conviction of the accused persons. It is urged that the FIR is anti timed and its copy was not sent to the Magistrate as required by Section 157, Cr. P.C. soon after being recorded and so no precaution has been shown to have been taken against interpolation of timings in the recording of FIR. The fact that the witness like Swamidin spoke of dying declaration by the deceased shows that he is a false witness and although the dying declaration part has not been found credible by the trial Court, his other testimony regarding having seen the accused running away with arms has been found credible. The argument is that his testimony should have been found incredible in toto. The name of Swamidin was not in FIR. He is a member of union of the-society and so he was introduced as a witness, next day after the FIR was recorded. There was inter union dispute going on and so the witnesses are speaking out of that rivalry to implicate these accused who are leading members of Janta union. In such background, much less weight should be given to the testimony of P. Ws. who belong to rival union and their evidence has to be screened with great caution. It is also argued that the circumstance regarding blood on the shirt of the accused Ramsewak or regarding the button of shirt of the accused Sharda are not proved by clinching evidence. The origin of blood on the shirt of Ram Sewak is not proved and identity of the button found at the spot with the button of the accused Sharda is also not established. The public witnesses have not supported prosecution version regarding recovery of either the button or the shirt. So the important testimony of the I.O. which has been relied upon by the trial Court, is in fact insufficient to establish these factors. The argument is that if these supporting factors are ignored, the ocular testimony of Budhsen and Badriprasad is infirm in the face of several omissions in their statements to Police in comparison to what they have stated in Court. The timing of the FIR being uncertain in these circumstances, the accused should be given benefit of doubt.
13. We have carefully scrutinized the entire evidence on record in the light of criticism raised by the learned Counsel for the accused. The testimony of Devideen owner of the Sweet Mart, has a great significance regarding the witnesses who were at the scene of crime. The deceased and the two witnesses Budhsen and Badriprasad had just taken tea at the stall. These witnesses belong to one trade union. So it was natural that they were together taking tea. The witness knew them. There is nothing to doubt his testimony nor any reason for him to lie in order to implicate these accused falsely. The fact of these three taking tea at the shop of sweet mart was narrated in the FIR and was narrated by the two witnesses PW 14 and PW 15 themselves. There is no challenge to this fact in cross examination also. The accused tried to show from evidence of D.W.I Doulatram that Budhsen was on leave from 23rd June to 26th June. But it is in no way suggests that Budhsen could not be present at the spot of crime along with the deceased. The defence further tried to show that B.P. Tiwari was on duty at Chachai on 23-6-1982. This incident pertains to 22-6-1982 and so the defence evidence is of no value whatsoever as it relates to different dates about these witnesses. Even in cases of murder of members of one party by members of other party in the background of inter party rivalry, the witnesses who are members of the party of the deceased could not be dubbed as unreliable partisan witnesses, if otherwise their presence at the scene of crime is natural. After all in such cases also it will be accepted that members of the same party would be together and so they should be expected to be natural witnesses to such crimes.
14. In the present case the evidence of Devideen establishes beyond doubt that Budhsen and Badriprasad witnesses were present at the scene of crime with the deceased. They had noticed the stabbing and they shouted 'Mardala'. Accordingly to Devideen, at least one of the accused namely Sharda had grappled with the deceased and soon thereafter was the shriek of 'Mardala'. The witness took the deceased to Police post and Budhsen made the report. The accused were arrested much later. The incident has been vividly described in FIR. The copy of the FIR was sent to the Magistrate next day, according to the police officer. The defence examined the reader of the Magistrate to show that no such copy of FIR exists on the record of FIRs, but it is clear that although it is for the prosecution to prove compliance with the provisions of Section 157, Cr. P.C. by sending a copy of the FIR to the area Magistrate immediately after recording it, the non-compliance of such provision will not by itself establish that FIR was not recorded at the time when it purports to have been recorded. Such a circumstance along with other suspicious circumstances may lead to cautious approach to evidence but if the circumstance is alone and there is other evidence suggesting recording of FIR in time and at the earliest, we need not decry prosecution version. In this case, the Record Keeper of the Magistrate was called as defence witness but he did not maintain any such register about the receipt of FIRs. In the absence of such a register, it cannot be said that the FIR was not received by him in time. So this is a case of copy of FIR being missing from the record of Magistrate. It does not show that FIR was not sent in time. P.W. 11 Sadhu Prasad Mishra, A.S.I., has specifically narrated that the FIR of this case was recorded at Police Post, Chachai, where Budhsen had gone and made a report to him. Copy of that daily diary entry was sent to P.S. Amlai where formal FIR was recorded. He does not know about sending of copy of FIR to Magistrate as he was not at the Police Station where formal FIR was recorded. The S.H.O. of P.S. Amlai Shri Sunder Singh appeared as P.W. 17. He had spoken nothing about sending of copy of FIR to Magistrate. He is silent and no question was put to him by any side. P.W. Vikrarnaditya had scribed the FIR himself on the basis of copy received from police post Chachai. He was not questioned whether copy of it was sent to Magistrate at once or when it was sent. Even defence put on question about it. No challenge was made in his cross-examination regarding the time of recording of FIR.
15. On scrutiny of the entire testimony of all the witnesses, there appears no doubt to us regarding time of recording this information at Police Post Chachai. This incident had occurred at Chachai at a point only about one furlong away from police post. P.W. 14 Budhsen reached the Police Post and made report immediately after the attack. So it was not unnatural that the report was made at 1 1/2 hours after the incident, at 9.30 p.m. So the argument of appellant's counsel that the FIR was ante timed and witnesses falsely introduced has rightly been rejected by trial Court. It is thus revealed that the two P. Ws. 14 and 15 were present with the deceased. There was sufficient light when the assailants attacked. There were six stab wounds found on the body of deceased. The internal organs have been respectively cut under those wounds. The trial Court has rightly found that the medical evidence corroborates ocular testimony of these eye-witnesses. The three accused are mentioned in the FIR also as the actual assailants who used knives to attack the deceased. There is no suggestion in the cross-examination of any of these witnesses that they wer e not known to the accused. Their conduct in not intervening in the attack can be well understood as self-protective as they were not armed and ordinarily a person would not face the danger of being attacked himself to protect another. That is the common mentality these days. We find from perusal of the testimony of these two witnesses that it is natural. There may be slight variations but they are of no importance and give a stamp of truth rather than untruth to their testimony in Court.
16. As regards recovery of shirt from Ramsewak accused, it is established beyond doubt It was recovered on 23-6-1982 from his body by P.W. 5 Chhotelal. He is a brother of Budhsen witness. This recovery is further established by Sunder Singh P.W. 17 who noticed blood stains on the shirt. This is so recorded in Ex. P. 4 seizure memo also. The report of Serologist, Govt. of India, Calcutta, about this shirt which was marked as 'C' stated that it had human blood stains on it. So this is an important circumstance and remains unexplained by this accused, how human blood was present on his shirt.
16A. As regards the button found near the spot of incident and button found missing from the shirt of accused who was arrested on 24-6-1982, we do not find any scientific report that the button on the shirt and the one found from the spot of incident are of the same origin or similar, in their chemical or physical properties. In the absence of such report we do not find justification for the conclusion of trial Court. So the fact that a button was lying near the scene of crime and one button from the shirt of the accused Sharda was missing, even if the buttons were of the same colour as disclosed by the I.O., is insufficient to show that the button at the spot of incident was from the shirt of the accused.
17. As discussed earlier the evidence of P.W. 14 and P.W. 15, is corroborated by immediate FIR where the accused are named and further corroborated by the medical evidence showing large number of injuries suggesting a member of assailants and still further corroborated by the fact that the shirt of one of the accused namely Ram Sewak bore human blood stains, when it was seized from him next day after the incident and supported by evidence of Devideen (P W 9), Swamideen PW 8 (to the extent of what they saw), are sufficient to establish beyond doubt that these three accused committed this murder in a sordid attack with knives, in pursuance of their common intention. We find that the accused have rightly been convicted under Sections 302/34, I.P.C. They have been sentenced to life imprisonment each. We confirm the conviction as well as the sentence.
The appeal is therefore dismissed. The appellants shall undergo the sentence.