Madhya Pradesh High Court
Vikram @ Manoj Jat vs State Of M.P. on 21 June, 2016
Author: Rohit Arya
Bench: Rohit Arya
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
Criminal Appeal No.58/2008
Vikram alias Manoj Jat
Vs.
State of M.P.,
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Shri Pradeep Katare, Advocate for the appellant.
Shri B.P.S.Chouhan, Government Advocate for the respondent/State.
Shri D.R.Sharma, Advocate for the complainant.
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JUDGMENT
(21/06/2016) Rohit Arya, J This appeal, under section 374 Cr.P.C., at the instance of the convict Vikram alias Manoj Jat s/o Govind Singh Jat is against the judgment dated 05/01/2008 passed by the Special Judge (Atrocities), Gwalior in Special case No.12/2001.
The appellant is convicted under section 148 IPC and sentenced to suffer 2 years rigorous imprisonment with fine of Rs.1,000/- as well as under sections 302/149 IPC for life imprisonment with fine of Rs.1,000/- besides, in default to undergo six months further imprisonment for each offence and direction that both the jail sentences shall run concurrently.
2. As per prosecution story, on the date of incident, i.e., on 03/06/2000 at about 8.00 am deceased Balkishan belonging to "Batham community", while going to attend Water Shed Committee meeting being President, was sitting at the Chabutara (Platform) near the bus stand at village Tiholi. In the close vicinity, at the check post of Forest Department, prosecution witness Buddharam Batham (P.W.3) was also sitting. Preetam, Mahesh (P.W.2) and Naval Kishore (P.W.4) had arrived at the bus stand just before occurrence of the incident after unloading cement at Stop Dam. At that time, a bus coming from Behad had come and stopped. Accused persons, Govind Singh, Vinod, Pratap Joshi, Dablu Joshi, Kamal Ojha and present appellant Vikram alighted from the bus. Appellant Vikram armed with Mouzar gun, Govind Singh armed with double barrel 12 bore gun, Vinod armed with single barrel 12 bore gun and the remaining three accused persons were armed with Katta (country made pistol). After 2 getting down from the bus, all the accused persons took their position behind tractor-trolley standing on the other side of the road. Appellant Vikram fired a gun shot at the deceased, Balkishan which hit on his left hand. Deceased, Balkishan to save his life ran towards the Village. Accused, Vikram alongwith 05 co-accused chased the deceased Balkishan firing gun shots. Deceased Balkishan entered nearby house of Ratanlal (P.W.1). Accused Vikram alongwith 05 other co-accused also entered the house of P.W.1 Ratanlal. Accused persons dragged Balkishan in the courtyard of the house and fired several gun shots piercing through forehead, left eye, below ear lobe (duiVh) and chest resulting into death of Balkishan. Thereafter they fled away.
3. P.W.3 Buddharam at about 9.00 am lodged FIR (exhibit P/3) at the Police Station Utila situated at about 4 kms from the place of incident. Case was registered under sections 147, 148, 149 and 302 IPC and also under section 3(2)(v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 (for short "the Act of 1989"). As regards death of Balkishan, marg report (exhibit P/4) was also prepared. The investigation was carried out by B.S.Yadav, Station House Officer (P.W.6). Spot map was prepared vide exhibit P/6. As per seizure memo (exhibit P/5), the following items have been seized:
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4. Besides, Dr. Vijay Kumar Diwan (P.W.5) has also found 40 pellets, one plastic rim and one disc from the right lung of the deceased, Balkishan. As per medical report, the deceased Balkishan sustained fire arm injuries on his body. The nature of injuries were sufficient for causing death of a person in the ordinary course. As such, deceased Balkishan had suffered homicidal death within 6 to 12 hours of the post mortem.
5. Further, as per prosecution, during investigation on 02/05/2001, one 12 bore double barrel gun and licence were seized from appellant, Vikram's father Govind Singh.
6. As the present accused Vikram was absconding, prosecution filed challan against Govind Singh father of Vikram, Vinod brother of accused, Vikram, Dablu, Kamlesh and Preetam and the case was registered as Special Case Nos.12/2001 and 1/2002 whereunder after trial vide judgment dated 21/03/2002 all the five accused were convicted for offences under sections 148 and 302/149 IPC.
7. Criminal Appeal No.158/2002 was preferred by accused Dablu s/o Dhandhu Joshi, Criminal Appeal No.194/2002 was preferred by Govind Singh S/o Bhagwant Singh & Vinod alias Ajay s/o Govind Singh, Criminal Appeal No.207/2002 was preferred by Pratap alias Pratap Narayan and Criminal Appeal No.259/2002 was preferred by Kamlesh. Govind Singh died during pendency of the appeal and, therefore, his name was deleted from the cause title. A Division Bench of this Court vide judgment dated 09/11/2010 had dismissed appeals upholding conviction under sections 148 and 302/149 IPC awarded by the trial Court.
8. Accused/appellant Vikram was arrested on 19/09/2005 and supplementary challan was filed on 25/11/2005. Thereafter the case was committed to the Court of sessions on 15/12/2005 and the judgment under challenge was passed by Sessions Judge convicting the accused/appellant under sections 148 and 302/149 IPC as stated above.
9. Undisputedly, the deceased belonged to 'Batham community' and accused Vikram belonged to 'Jat community'.
There was election rivarly between the deceased, Balkishan and the accused, Vikram.
410. Accused/Vikram is son of co-accused Govind Singh and brother of co-accused, Vinod.
11. The deceased Balkishan was son of Naval Kishore (P.W.4), brother of Buddharam (P.W.3) and uncle of Mahesh (P.W.2). Ratanlal (P.W.1) is resident of village Tiholi. The occurrence of the incident on 03/06/2000 was at two places, firstly; at bus stand where Vikram fired a gun shot which hit left hand of the deceased, Balkishan and secondly; in the courtyard of the house of P.W.1, Ratanlal where Balkishan had entered to save himself but the accused persons chased him, entered the house and dragged him in the courtyard where accused persons caused fire arm injuries resulting into death of Balkishan as detailed above.
12. The Sessions Judge has critically examined evidence of eye-witnesses, namely; Ratanlal (P.W.1), Mahesh (P.W.2), Buddharam (P.W.3) and Naval Kishore (P.W.4), besides, Investigating Officer, B.S.Yadav (P.W.6) and Dr. V.K.Diwan (P.W.5).
13. The Sessions Judge has discussed the nature of injuries caused on the body of the deceased, Balkishan vividly whereunder it is found that as per post mortem report (exhibit P/7) conducted by Dr.Vijay Diwan (P.W.5), in all there were five gun shot injuries which reads as under:
(i) Gun shot wound of entry just lateral to right eye 2 cm x 2 cm with blackening of margins and lacerated edges inverted going from underneath to nasal bone to left eye making the gun shot wound of exit;
(ii) Gun shot wound corresponding to injury No.(i) making gutter shape size: 13 cm x 7 cm x 3 cm deep with fracture of nasal bone orbit and laceration of both eye-ball present;
(iii) Gun shot wound of entry left side chest upper part over left axillary fold 5 cm below clavicle of size 2 cm x 2 cm blackening, margins lacerated, edges inverted;
(iv) Gun shot wound of exit corresponding to injury No.(iii) left posterior axillary fold 14 cm below tip of left shoulder 3 ½ cm x 2 cm margins lacerated, 5 edges averted.
(v) Gun shot wound of entry left side lower chest posterior axillary line 29 cm below tip of left shoulder and 17 cm lateral to spine of size: 2 cm x 2 cm, margins lacerated, edges inverted with bleeding present with lacerated wound on left elbow anterior medially of size: 7 cm x 5 cm with two wounds of size: 3 cm x 2 cm, 2 cm apart."
The evidence of Dr. Vijay Dewan (P.W.5) was found to be impeccable in nature having proved the post mortem. Therefore, the Sessions Judge reached the conclusion that the deceased, Balkishan suffered homicidal death due to bullet injuries in his head, eyes, ear and chest area.
14. The Sessions Judge while carefully examining the evidence of eye-witnesses has found that there is consistency in the statements of P.W.2 Mahesh, P.W.3 Buddharam and P.W.4 Naval Kishore though there were minor contradictions or omissions as regards statement of P.W.1 Ratanlal. On account of overwhelming evidence of occurrence of the incident and involvement of the accused/Vikram with other co-accused, seizure memo (exhibit P/5 ), post mortem report (exhibit P/7 ) and evidence of Dr. Vijay Diwan (PW5), the trial Court has concluded that the accused/Vikram alongwith other co-accused persons had formed unlawful assembly with common object of causing death of deceased, Balkishan resulting into homicidal death of the deceased, Balkishan. Accordingly convicted the accused/appellant Vikram under sections 148 and 302/149 IPC. However, acquitted him of the charge under section 3(2)(v) of the Act of 1989.
15. Learned counsel for the appellant while criticizing the judgment contended that the Sessions Judge has committed grave illegality having relied upon the evidence led by cited eye- witnesses, i.e., P.W.2 Mahesh, P.W.3 Buddharam and P.W.4 Naval Kishore being relatives of the deceased, Balkishan while concluding that the appellant, Vikram was the member of unlawful assembly with common object of causing death of the deceased, Balkishan. In fact, the Sessions Court ought to have relied upon evidence of defence witnesses, viz., D.W.1 Surendra Singh, 6 D.W.2 Ramprasad, D.W.3 Bahadur Singh, D.W.4 Mahendra and D.W.5 Ramjilal who have deposed that the appellant Vikram was at a different place at the relevant point of time. As such, the appellant Vikram not being a member of the alleged unlawful assembly could not have been convicted under sections 148 and 302/149 IPC.
16. Learned counsel further contends that the appellant, Vikram was alleged to have been armed with Mouzer gun, however, no used cartridges of Mouzer gun have been seized from the places of incident and no prosecution witness has specifically deposed against Vikram to have fired gun shot from the Mouzer gun causing particular injury resulting into death of the deceased, Balkishan. As such, the conviction under section 302/149 IPC was wholly unjustified and cannot be sustained.
17. Learned counsel further contends that report was not submitted before the Magistrate under section 157 Cr.P.C., therefore, the prosecution has failed to follow the procedure under law. As regards this contention, it is considered apposite to observe that Sessions Court in paragraph 28 of the judgment has found that B.S.Yadav (P.W.6), Investigating Officer on the basis of entries made in the diary specially deposed that vide dispatch No.714, a copy of first information report has been forwarded to the Court of concerned Magistrate. Hence, the said contention is without force and is hereby rejected.
18. Per contra, State's counsel as well as counsel for the complainant contend that the date of incident was 03/06/2000 and the appellant Vikram since then was absconding. However, the appellant has surrendered on 19/09/2005 and thereafter supplementary challan was filed on 25/11/2005. Defence witnesses for the first time have deposed after 04 to 07 years since the date of incident and during this period, no where they have made a statement in support of plea of alibi raised by the appellant Vikram. That apart, the Sessions Court while discussing evidence of defence witnesses from paragraphs 37 to 40 of the judgment has found that there are apparent contradictions and falsity in their statements inasmuch as D.W.1 Surendra Singh has stated that the appellant Vikram has Aata Chakki (Flour Mill) at Meera Nagar, Morar, Gwalior where at about 8.00 am on 7 03/06/2000, he had gone there for grinding flour whereas appellant Vikram in his statement under section 313 Cr.P.C., in reply to question No.56 has stated that he was at his residence in Morar at the time of the incident. Hence, the appellant has not stated that he was present at his Flour Mill. As such, the evidence of D.W.1 Surendra Singh is absolutely concocted and the Sessions Court has rightly ignored the same.
19. As regards D.W.2 Ramprasad who is resident of village Tiholi and claims to be present at the bus stand where the incident had occurred, he had stated that Govind Singh and four others alighted from the bus. This witness has stated that he has suffered pellet injury on the left side of forehead. According to this witness, the appellant Vikram was not present at the scene of occurrence. As such if this witness had suffered such injury, he would have reported the matter to the Police Station and also got him medically examined. That was not done. Therefore, the aforesaid nature of deposition by such person after about 05 years of the incident is another piece of concocted evidence and has rightly been rejected by the Sessions Court.
20. Likewise, D.W.3 Bahadur Singh who also claims to be standing at the bus stand has no where stated in his statement that appellant Vikram did not alight from the bus. In his cross- examination, there is apparent inconsistency as found by the Sessions Court and not worthy of credence, therefore, the evidence of such witness has rightly been discarded by the Sessions Court.
21. D.W.4 Mahendra Singh who claims to be chowkidar in the Forest Naka is alleged to have been present at the spot on the date of the incident. Though, this witness deposed that the accused persons had alighted from the bus and formed an unlawful assembly as well as fired gun shots at Balkishan but he did not depose that the appellant, Vikram was not there and had not fired a gun shot by fire-arm.
22. Likewise, D.W.5 Ramjilal did not state that no other person except the five persons named in his statement have alighted from the bus and fired gun shot at the deceased, Balkishan.
23. Learned counsels as such contend that there are apparent contradictions and falsity in the statements of defence witnesses 8 after gap of about 4 to 7 years from the date of incident and, therefore, the plea of alibi raised by the appellant cannot be sustained in the given facts and circumstances of the case.
24. Learned counsels further contend that a comparative assessment of evidence led by eye-witnesses, P.W.2 Mahesh, P.W.3 Buddharam and P.W.4 Naval Kishore bring on surface consistency in their statements either while deposed in Special Case No.1/2002 in respect of 05 other accused persons or in Special Case No.12/2001 in respect of the appellant Vikram. Their statements are in corroboration with the FIR, statements of witnesses under section 161 Cr.P.C., in both the Special Case Nos. 12/2001 and 1/2002, injuries on the body of the deceased, Balkishan as well as medical evidence. Merely because the prosecution witnesses happens to be related to the deceased, Balkishan that by itself cannot justify discarding statements of eye-witnesses. In support of their case, learned counsels relied upon the following judgments:
(a) Bharwada Bhoginbhai Hirjibhai Vs. State of Gujarat, AIR 1983 SC 753;
(b) State of U.P., Vs. Ballabh Das and others, AIR 1985 SC 1384; and
(c) Hardev Singh Vs. Harbhej Singh and others, (1997) 1 SCC 80; and
25. Learned counsels further contend that in all there are six accused persons; appellant Vikram armed with Mouzar gun, Govind Singh (since dead) armed with double barrel 12 bore gun, Vinod armed with single barrel 12 bore gun and the remaining three accused persons,namely; Pratap alias Pratap Narayan, Kamlesh & Dablu armed with Katta (country made pistol). All had alighted from the bus at the bus stand as well as formed unlawful assembly with common object/knowledge of causing such bodily injuries to cause death of Balkishan. Appellant Vikram at first fired gun shot from his mouzer gun which hit the deceased, Balkishan on his left arm. Thereafter, Balkishan ran from the place of incident towards village to save his life and has entered the house of Ratanlal. Thereafter, all accused persons including the appellant, Vikram chased Balkishan and entered into the house of Ratanlal. Thereafter, dragged the deceased, Balkishan 9 in the court-yard of the house of Ratanlal and fired gun shots which hit on various parts of the body viz., lateral to right eye causing fracture of nasal bone orbit and laceration of both-eye balls, left side chest upper part over left axillary fold 5 cm below clavicle, left posterior axillary fold 14 cm below tip of left shoulder and left side lower chest posterior axillary line 29 cm below tip of left shoulder and 17 cm lateral to spine as well as left elbow anterior medially - two wounds. The medical evidence also discloses 40 pellets, one plastic rim and one disc in the right lung of the deceased, Balkishan. Under such circumstances, Sessions Court was fully justified having convicted the appellant for the offence under sections 148 and 302/149 IPC.
26. Heard learned counsel for the parties.
27. Before adverting to the contentions advanced by learned counsel for the appellant, it is considered apposite to reiterate the law as settled by Hon'ble Apex Court.
28. Contention of learned counsel for the appellant that P.W.2 Mahesh, P.W.3 Buddharam and P.W.4 Naval Kishore being relatives of the deceased Balkishan ought not have been relied upon as eye-witnesses to conclude that the appellant was a member of the unlawful assembly alongwith 05 other co-accused persons for the reason that in the absence of any independent witness, the evidence of interested witnesses should not be relied upon for convicting the appellant Vikram, in the opinion of this Court, cannot be acceded to. As a matter of fact, the law requires where the witnesses are interested, the Court should examine their evidence with care and caution to rule out possibility of any false implication. However, the interested witnesses cannot be presumed to be tainted instead upon corroboration, the same stands on same footing as that of independent witness.
29. Facts of the case in hand suggest that there is consistency in the statements of the eye-witnesses; P.W.2 Mahesh, P.W.3 Buddharam and P.W.4 Naval Kishore in the matter of presence of the appellant, Vikram armed with Mouzer gun alongwith other co- accused persons at bus stand while appellant fired gun shot which hit at the left hand of the deceased. Thereafter, the appellant alongwith with other co-accused chased the deceased, Balkishan and dragged him in the court-yard of the house of 10 Ratanlal (P.W.1) and caused death by firing gun shots. This piece of evidence is fully corroborated with the medical evidence on record, allegations in the FIR, earlier depositions of witnesses in Special Case No. 1/2012. The Sessions Judge has critically examined the evidence of the eye-witnesses in a comprehensive manner and rightly reached a conclusion that the evidence of eye-witnesses is worth credence. That apart, the Hon'ble Supreme Court in the case of Hardev Singh (supra) rejected the contention that for want of examination of the independent eye- witness, the conviction based on testimony of relatives was bad in law and held as under:
".....This Court time and again has emphasised that the evidence of close relations who testified the facts relating to the occurrence be not rejected merely on the ground that they happened to be relatives. All that this Court has ruled is that the evidence of such witnesses be scrutinized very carefully..."
30. Therefore, in the opinion of this Court, the Sessions Judge has not committed any illegality while relying upon the evidence of the eye-witnesses; namely; P.W.2 Mahesh, P.W.3 Buddharam and P.W.4 Naval Kishore to conclude that the appellant was member of the unlawful assembly. More over, there is apparent contradiction and falsity in the deposition of the defence witnesses as discussed in paragraphs 37 to 40 of the judgment. Besides, even if there are minor discrepancies in the statements of the eye-witnesses, the same cannot be given any undue importance as held by the Hon'ble Supreme Court in the case of Bharwada Bhoginbhai Hirjibhai (supra), whereunder plausible reasons have been given in paragraph 5 and in paragraph 6, it is observed that discrepancies which do not go to the root of the matter and change the basic version of the witness are of no significance. More over, when all important "probabilities-factor"
echoes in favour of the version narrated by the witness and have reason for it. The ratio of the judgment in the case of Bharwada Bhoginbhai Hirjibhai (supra) is squarely applicable to the facts of the case in hand.
31. In the case of Sarwan Singh and others Vs. The State of 11 Punjab, AIR 1978 SC 1525, it has been held that in order to find out the person guilty of offence under section 302 read with section 149 IPC, the prosecution is required to establish that the offence was committed by any member of an unlawful assembly in prosecution of the common object or knowledge of the assembly or such act as a member of the assembly knew to be likely to be committed in furtherance of the common object or knowledge. The cumulative effect of the injuries are of relevant nature which are found to have been sufficient in the ordinary course of nature to cause death where the common object or knowledge of the unlawful assembly was to commit an offence under section 302 IPC.
32. Further, in the case of Lalji and others Vs. State of U.P., (1989) 1 SCC 437, the Hon'ble Apex Court while interpreting the provision as contained under section 149 IPC ruled that a member of an unlawful assembly is responsible as a principal for the acts of each and all the members being a member of an unlawful assembly and knew it to be likely to be committed. The foundation of such constructive guilt under section 149 IPC of the member of the unlawful assembly is with requisite common object or knowledge. Therefore, mere presence of a member of the unlawful assembly even in the absence of any overt act or active participation in furtherance of the common object of commission of crime, the person being member of such unlawful assembly shall be vicariously liable for the criminal act under section 149 IPC.
33. The aforesaid judgments have been followed recently; in the cases of Ramesh and others Vs. State of Haryana, (2010) 13 SCC 409 and Subal Ghorai and others Vs. State of West Bengal (2013) 4 SCC 607.
34. Therefore, the contention of the learned counsel for the appellant that none of the eye-witnesses have deposed specifically as regards gun shot fired by the appellant, Vikram causing particular injury on the body of the deceased, Balkishan or that no recovery of such empty cartridge on the spot; the appellant Vikram is not liable to be convicted for the offence under section 302/149 IPC, pales into insignificance and deserves rejection being contrary to settle principle of law as the 12 eye-witnesses, namely; P.W.2 Mahesh, P.W.3 Buddharam and P.W.4 Naval Kishore have consistently stated that appellant, Vikram alongwith other 05 co-accused at 8.00 am on 03/06/2000 have alighted from the bus at the bus stand and thereafter appellant, Vikram had fired gun shot with Mouzer gun which hit on the left hand of the deceased, Balkishan. Deceased, Balkishan in order to save his life ran from the place of incident, i.e. bus stand. Appellant Vikram alongwith 05 other co-accused have chased the deceased. Deceased, Balkishan entered into the house of Ratanlal where the accused persons dragged Balkishan in the court-yard of the house and caused five fire-arm injuries resulting into his death. In the light of these facts, this Court is of the firm opinion that the appellant was member of the unlawful assembly in furtherance of the common object/knowledge causing death of the deceased, Balkishan. Hence, the Sessions Judge has rightly convicted the appellant for the offence under section 302/149 IPC.
35. Moreover, a Division Bench of this Court while deciding criminal appeals filed by 05 other co-accused have been decided by a common judgment dated 09/11/2010 as mentioned in paragraph 7 hereinabove has concluded that the appellant, Vikram alongwith 05 other co-accused persons formed an unlawful assembly with common object/knowledge and have fired gun shots causing injuries on the body of the deceased, Balkishan resulting into his death. Hence, the contention is rejected.
36. Resultantly, the appeal fails and is hereby dismissed. The appellant is reported to be in jail. Hence, the appellant is directed to serve the remaining part of jail sentence if not required in any other case.
(Rohit Arya) (Anand Pathak)
Judge Judge
21-06-2016 21-06-2016
b/-