Madhya Pradesh High Court
Halkai Kushwaha vs The State Of Madhya Pradesh on 4 August, 2018
Author: Vijay Kumar Shukla
Bench: Vijay Kumar Shukla
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HIGH COURT OF MADHYA PRADESH : JABALPUR
Criminal Appeal No.2119/2009
Halkai Kushwaha and another
-Versus-
State of Madhya Pradesh
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CORAM :
Hon'ble (Smt.) Justice Nandita Dubey, Judge.
Hon'ble Shri Justice Vijay Kumar Shukla, Judge.
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Shri Ajay Tambrakar, Amicus Curiae for the appellants.
Shri S.D.Khan, Government Advocate, for the State.
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JUDGMENT
(Jabalpur dt.:04.08.2018) Per : V.K. Shukla, J.-
In the present appeal filed under Section 374(2) of the Code of Criminal Procedure, a challenge has been made to the order of conviction and sentence dated 04-08-2009, passed by Additional Sessions Judge, Nowgong, District Chhatarpur in S.T.No.73/2006, whereby the appellants have been convicted and sentenced as under :
APPELLANT NO.1 HALKAI KUSHWAHA Conviction Sentence Under Section R.I. for life and fine of 302/34 of IPC Rs.500/-,in default of payment of fine, further R.I. for 1 year.2
APPELLANT NO.2 MULLI KUSHWAHA Conviction Sentence Under Section 302 of R.I. for life and fine of IPC Rs.500/-,in default of payment of fine, further R.I. for 1 year.
2. The prosecution case in nutshell is that an incident is said to have occurred on 31-01-2006 at about 11.45 hours and to that effect Dehati Nalishi (Ex.P-21) was lodged by Suresh, whereby it is alleged that the first informant's father Sulle alias Mukundi Kushwaha (since deceased) and his mother Laxmi Bai were watering the field and at that time, uncle Halkai and Mulli Kushwaha armed with an axe came over there. It is alleged that appellant no.1 Halkai Kushwaha called Sulle alias Mukundi and then they reached near Taparia (Kuti) at the well in the filed and they abused filthy languages to Sulle and thereafter assaulted him by axe. When Sulle tried to rescue himself and ran away, appellant Mulli threw an axe which struck at his leg and due to the injuries sustained by Sulle, he died on the spot. It is further alleged by the prosecution that when Laxmi and Suresh tried to rescue the life of Sulle, both were also assaulted by the accused persons and thereafter the accused persons ran away. It is further alleged by the prosecution that on Monday, Sulle alias 3 Mukundi had demanded some food grains from Mulli and due to which, there was some dispute between Sulle, Mulli and Halkai. After the death of Sulle, a report was lodged on 31-01- 2006 at Police Station Gadhi Malahra.
3. The accused persons were arrested by Ex.P-16 and Ex.P-
17. The Investigating Officer had taken sample of blood stained soil and the broken bangles. Crime seen was prepared. The dead body was sent for postmortem to the Government Hospital Maharajpur. The postmortem was conducted by Dr. A.K.Sharma. The death of the deceased was found to be homicidal within a period of 24 hours. The blood stained clothes were also seized. Injured persons namely Smt. Laxmi and Suresh were also sent for medical examination. They were examined by Dr. Dilip Tripathi. After the investigation charge sheet was filed. Initially the appellants were charged under Section 323/34 and 302/34 of IPC.
4. It was alleged that after having shared a common intention to commit murder of Sulle alias Mukundi Kushwaha on 31-01-2006 at about 11.00 hours in village Gadhiralhara, the appellants made an assault on him by a sharp edged weapon like axe. They had also caused simple injuries to Smt. Laxmibai and Suresh.
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5. The appellants denied the charges and submitted that they have been falsely implicated and in support of their case, they also examined DW-1 Balkishan Kushwaha and DW-2 Mintu. The trial court after evaluating the evidence on record acquitted the appellants of the charge under section 323/34 of IPC but convicted them for offence punishable under sections 302 and 302/34 of IPC by the impugned judgment.
6. The conviction of the appellants is based on the testimony of injured witnesses PW-2 Laxmibai, the wife of the deceased and PW-4 Ku.Khushbu, daughter of the deceased. One injured witness Suresh died during the trial.
7. In order to appreciate the contentions of the learned counsel for the appellants, we apt it to refer the testimony of injured witness PW-2 Laxmi Bai. She has stated that deceased Sulle was her husband and the accused is her brother-in-law (Dewar). When she was watering the field alongwith her husband Sulle and son Suresh, her daughter Khushbu came and informed that uncle Halkai is calling him and he was carrying an axe with him. She has further stated that all four persons had gone to the place and saw that Halkai and Mulli armed with axe were present on the field. Appellant Halkai was abusing. Her husband asked the reason for abusing them. 5 On that appellant Mulli had thrown axe on his leg, out of which her husband fell down and then Mulli shouted that she also be beaten. It is stated that when the deceased tried to get up and to run away from the place, Mulli had given repeated axe blows on head, wrist etc. When she tried to rescue her husband, Halkai had given axe blows on her hand and thigh and thereafter both had run away from the spot. PW-4 Khushbu, who is aged about 5-6 years is a child witness. She was examined as PW-4. The court before recording her statement, made queries in the form of questions and answers to satisfy that whether the witness is capable of understanding questions and answers. The court after recording satisfaction that she is competent to give evidence, the witness was allowed to lead the evidence. In para-1 of her statement, she has stated that her uncle Halkai and Mulli had come on the field armed with axe and they had killed them with the help of axe. She stated that her uncle Halkai had asked her to call her father Sulle.
8. The witness PW-2, who is an injured witness was examined by Dr. Dilip Tripathi (PW-11. His MLC is Ex.P-19. He had found injuries on the left wrist ½ x ½ cm. and one scratch. He has also examined Suresh and his MLC is Ex.P-
20. He has found two injuries, one on the face ½ x ½ cm. 6 scratch and other on the neck ½ x 1½ cm. scratch. PW-2 Laxmi Bai is a stamp witness being injured witness, her presence on the place of occurrence cannot be dislodged. Further there is no cross-examination to the effect that there was any reason for false implication of the appellants. Further child witness PW-4 Khushbu has also made categorical statement that appellant no.1 Halkai had asked her to call father deceased Sulle and both appellants were armed with axe. She also stated that she had seen these two persons causing injuries with the help of axe.
9. The autopsy of the deceased was done by PW-3 Dr. A.K.Sharma. He has stated that there were 20 injuries on the person of the deceased and all these injuries were caused by sharp edged weapon. The postmortem report is Ex.P-4. He has given his opinion that the death of the deceased is homicidal and cause of death is multiple vital injuries and head injuries.
10. Learned counsel for the appellants submitted that as per the testimony of PW-2 Laxmi and PW-4 Ku.Khushbu, the injuries were caused to the deceased by appellant Mulli Kushwah and not by Halkai Kushwaha. He had caused injuries to Laxmi Bai and Suresh and therefore, his conviction 7 is not sustainable. We do not fnd any merit in the said contention. On consideration of the testimony of PW-2 Laxmi and PW-4 Ku.Khushbu, it is established that both the appellants came armed with axe in the field of the deceased. Appellant Halkai asked PW-4 Khushbu daughter of the deceased to call her father. When all the four persons reached at the spot, appellant Halkai was abusing the deceased and he ensured that nobody would come forward to rescue the deceased. When PW-2 Laxmi and her son Suresh tried to rescue the deceased he caused injuries to them. Thus, there is active participation by appellant Halkai as well . It is established that they have shared common intention to commit murder of Sulle alias Mukundi Kushwaha. The deceased has received 22 injuries. The presence of appellant Halkai with axe has been established by the prosecution.
11. Section 34 has been enacted on the principle of joint liability in the commission of criminal act. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34, if such criminal act is done in furtherance of a common intention of the persons who join in committing the crime. As discussed, by the evidence of PW-2 Laxmi and P-4 8 Ku.Khushbu, the prosecution has established that appellant no.1 Halkai had also shared the common intention.
12. In view of the aforesaid discussions and assimilation of facts and evidence, we do not find any error in the order of conviction and sentence.
13. Accordingly, the appeal stands dismissed.
14. Before parting, we must put on record our unreserved appreciation for the valuable assistance rendered by the learned amicus curiae. The High Court Legal Services Authority shall remit fee of Rs.4000/- (Rs. four thousand) to the amicus curiae who assisted this court.
(SMT. NANDITA DUBEY) (VIJAY KUMAR SHUKLA)
JUDGE JUDGE
Hsp.
Digitally signed by HARSAHAI
PATERIYA
Date: 2018.08.10 10:14:52
+05'30'