Madhya Pradesh High Court
Bhavani Singh And Ors. vs The State Of M.P. on 5 January, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
Cr.A. No. 521/2004
Bhawani Singh & Ors.
Vs.
State of M.P.
Present : Hon'ble Shri Justice S.K. Gangele, Judge
Hon'ble Smt. Justice Anjuli Palo, Judge
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Smt. Durgesh Gupat, Amicus curiae appointed through the
High Court Legal Service Committee for the appellant .
Shri Pradeep Singh, GA for the respondent/State.
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JUDGMENT
(05/01/2018) Per : Smt. Anjuli Palo, J. :-
1. This appeal has been filed by the accused-appellants being aggrieved by the judgment dated 24.1.2004, passed by Special Judge, Chhatarpur in Session Trial No.89/2001, whereby the appellants Pyarelal and Santu have been convicted for offences punishable under Sections 302/149 and 148 of the Indian Penal Code and appellants Moti, Gopi and Bhavani have been convicted for offences punishable under Sections 302 and 148 of the Indian Penal Code and sentenced to undergo RI for life and RI for 3 years respectively
2. In brief the prosecution case is that 10.3.2001 was the day of Holi Festival. Ganpat (since deceased) alongwith his father Gurwa, brother Jagna, Devideen and Chhakki were 2 sitting in front of their house. At about 7.30 am Holi was lit for which many villagers had gathered there to attend the Holi function. The appellants alongwith 12 persons came there from different directions armed with axe and assaulted Ganpat. Co- accused Gopi and Bhawani Singh fired at Ganpat with their guns and co-accused Rajendra Singh fired with Katta (country made pistol). Ganpat tried to run away but he was restrained by the appellants. Ganpat fell down. Co-accused Moti dragged him and cut his neck with the axe. Thereafter they took away the severed neck of Ganpat with them. The appellants/accused persons had enmity with them because Gurwa (father of the deceased) lodged a report under the SC/ST (Prevention of Atrocities) Act, 1989 against the accused Rajendra Singh. On the report of Jagn @ Jagannath, brother of the deceased, police registered a case under Sections 147, 148, 149, 302, 323, 294 of IPC and 3(1)(ii) and 3 (2) (v) of SC/ST (Prevention of Atrocities) Act, 1989 against the appellants. The charge sheet has been filed before the JMFC.
3. After committal of the case, the learned trial Court framed charges under Sections 302/149 of IPC and Section 3 (2) (v) of SC/ST (Prevention of Atrocities) Act, 1989 against the appellants. Charges under Section 25 (1)(a) and 27 of Arms Act had also been framed against appellants Bhawani Singh, 3 Motilal and Pyarelal. The appellants abjured guilt and stated that they have been falsely implicated by the police due to previous enmity with the complainant party. After considering the evidence on record, learned trial Court held the appellants guilty for offences punishable under Sections 302, 302/149 and 148 of IPC and sentenced them as mentioned above
4. The findings and sentence have been challenged by the appellants on the grounds that the learned trial Court has wrongly relied on the prosecution evidence. The prosecution has failed to prove its case beyond reasonable doubt. No independent witness has been examined by the prosecution. There are material discrepancies in the statement of prosecution witnesses. So many material witnesses have not been examined by the prosecution. The prosecution also failed to prove the motive of the offence even through the learned trial Court has wrongly convicted the appellants. Hence, the findings of the learned trial Court deserve to be set aside.
5. We have heard learned counsel for the parties at length and perused the record.
6. Learned Govt. Advocate has vehemently opposed the prayer of the appellants and contended that the learned trial Court has rightly held the appellants guilty for committing the aforesaid offences.
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7. In this case Dehati Nalisi (Ex.P9) lodged by Jagannath on the date of incident i.e. within one hour of the incident at Sendhwa Camp Police Station, Bada Malhara District Chhatarpur wherein he mentioned the names of appellants Moti, Santu, Narendra Singh, Kishore Singh, Mathura Gopi, Chhannu, Bhavani Singh, Pyarelal, Santu, Gopi, Rajendra, Raja, Mahendra Singh, Jagna. According to the Dehati Nalisi (Ex.P9), FIR (Ex.P38) was registered against the appellants under Sections 302, 302/149 and 148 of IPC. In both the documents, it has been mentioned that Jagannath, Nannu, Gokul, Chhakki and Manoj were the eye witness of the incident. The incident took place on 10.3.2001 at about 7.30 am and the FIR has been lodged promptly by naming the appellants.
8. Eye witnesses Jagan @ Jagannath (PW5), Gurwa (PW6), Devideen (PW8) Chhakki Lal (PW11) all were present on the spot alongwith their family members. They witnessed the incident and and have narrated that they saw all the appellants have actively participated alongwith other co-accused persons in the crime. At that time Bhawani Singh and Motilal were armed with gun, appellant-Pyarelal was armed with Bamboo stick, Santu was armed with axe and Gopi was armed with pistol. Other accused persons were armed with Farsa, Ballam 5 and lathi. Accused-Rajendra Singh instigated them to kill Ganpat, thus accused-Gopi, Bhawani Singh and Rajendra fired gun shots injuries to him and due to that Ganpat fell down near the drain, thereafter Moti (now dead) caught hold his hair and appellant-Santu caught hold his both hands and thereafter Moti by inflicting three blows of axe cut his neck.
9. Gurwa (PW6) has stated that appellant-Gopi fired at Ganpat about 6 rounds. He has also corroborated the testimony of Jagan (PW5). As per the statement of Gurwa (PW6), they found severed head of the deceased after 18 days of the incident. He has further stated that all the appellants alongwith other accused persons have collectively assaulted Ganpat with their arms. Similarly Devideen (PW8), Chhakkilal (PW11) have corroborated the testimony of Jagan and Gurwa. As per the statements of Jagan (PW5) and Devideen (PW8), after lodging the report, police came to the spot and took the headless body of the deceased-Ganpat for postmortem.
10. Dy.S.P. S.K. Kanchan (PW17) has also deposed about the spot and he prepared the memo Ex.P13 (lash panchnama) and he recovered the blood stained soil, pellets ( chharre) and empty cartridges. He promptly recorded the statements of Jagan, Gurwa, Nannu, Gokul, Chhaki, Manoj Punwa. We find the testimony of prosecution witnesses Jagan, Gurwa, Chhakki, 6 Devideen substantially corroborates the prosecution story. They all deposed about the active involvement of all the appellants in the crime. Thus, there is no possibility that within a few hours, the witnesses have falsely implicated the appellants on a concocted story made by the complainants with the help of police.
11. Learned counsel for the appellant alleged that in this case, all the witnesses are close relatives of the deceased. But, it is also important to note that they are also relatives of the appellants. Infact, the relatives are more interested to implicate the real culprit of the crime. They will not spare the real culprit and falsely implicate their own relatives or other innocent persons.
12. In case of Roop Narain Mishra Vs. State of UP [2017 Cri.LJ 1487] has held as under :
"On the point of 'interested witnesses', the Hon'ble Supreme Court in State of U.P. v. Jagdeo, reported in 2003 Cri LJ 844 (SC) observed that only on the ground of interested or related witnesses, their evidence cannot be discarded. Most of the times eye witnesses happen to be family members or close associates because unless a crime is committed near a public place, strangers are not likely to be present at the time of occurrence. In Mst. Dalbir Kaur v. State of Punjab, 1976 Cr LJ 418 (SC), following observations were made:7
The term "interested" postulates that the person concerned must have some direct interest in seeing that the accused is somehow or the other is convicted either because he had some animus with the accused or for some other reason. In the reported case the incident took place at midnight inside the house, the only natural witnesses who could be present to see the assault were the persons present in the house at that time. No outsider can be expected to have come at that time because the attack was sudden. Moreover a close relative who is a very natural witness cannot be regarded as an interested witness.
Witness who gives details with absolute accuracy is trustworthy."
[See also Waman and others v. State of Maharashtra, 2011 Crl. LJ 4827].
13. In case of Arjun vs. State of C.G. [2017 (2) MPLJ (Cri.) 305], the Hon'ble Supreme Court has held as under :
"Evidence of related witness is of evidentiary value. Court has to scrutinize evidence with case as a rule of prudence and not as a rule of law. Fact of witness being related to victim or deceased does not by itself discredit evidence."
14. In case of Kartik Malhar Vs. State of Bihar [(1996) 1 SCC 614] the Hon'ble Supreme Court has held as under :-
"A close relative who is a natural witness cannot be regarded as an interested witness, for the term "interested" postulates that the witness must have some interest in having the accused, somehow or the other convicted for some animus or for some other reason."8
15. The testimony of eye witnesses found fully reliable with the corroboration of other evidence, even though they are the close relative of the deceased, but we do not find any material contradictions and omissions in between their testimonies. There is no rule to ignore the evidence of eye witnesses on the grounds that they are close relatives of the deceased.
16. Hence, in the light of the above legal proposition, the testimony of near relatives of the deceased persons has rightly relied by the trial Court. We are not inclined to discard the same.
17. Learned counsel for the appellants submits that there are some omission and contradiction between the testimonies of the eye witnesses, therefore, their testimonies cannot be relied upon. We are not inclined to accept this contention because we do not find that there is material contradiction or omission in the case, which adversely affects the prosecution story. Such type of contradiction and omission are natural in the evidence, because the witnesses have no photographic memory. Each person has a different type of power to memorise or explain the happenings or incidents. Hence occurrence of some contradiction or omission is narrated, but it cannot be a ground to ignore all the testimony of eye witnesses in heinous offences.
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18. In case of Bharwada Bhoginbhai Hirjibhai Vs. State of Gujrat reported in AIR 1983 SC 753 it was held as under :-
"(1) By and large a witness cannot be expected to possess a photographic memory and to recall the details of an incident. It is not as if a video tape is replayed on the mental screen. (2) ordinarily it so happens that a witness is overtaken by events. The witness could not have anticipated the occurrence which so often has an element of surprise. The mental faculties therefore cannot be expected to be attuned to absorb the details.
(3) The powers of observation differ from person to person.
What one may notice, another may not. An object or movement might emboss its image on one person's mind whereas it might go unnoticed on the part of another. (4) By and large people cannot accurately recall a conversation and reproduce the very words used by them or heard by them. They can only recall the main purport of the conversation. It is unrealistic to expect a witness to be a human tape recorder.
(5) In regard to exact time of an incident, or the time duration of an occurrence, usually, people make their estimates by guess work on the spur of the moment 1.1 at the time of interrogation. And one cannot expect people to make very precise or reliable estimates in such matters. Again, it depends on the time- sense of individuals which varies from person to person.
(6) Ordinarily a witness cannot be expected to recall accurately the sequence of events which take place in rapid succession or in a short time span. A witness is liable to get confused, or mixed up when interrogated later on."
19. The prosecution case is duly supported by not only the ocular evidence but the medical evidence also. Dr. P.K. Jain (PW9) conducted the autopsy of the deceased on the date of incident and found the following injuries as indicated in postmortem report (Ex.P15) :-
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"(i) One long cut on the neck and blood vessels were completely cut above the chest and neck junction. Circumference of wound is 41.5cm with clear cut edges, blood was present, all major blood vessels of neck, muscles, trachea, esophagus, cervical vertebrae and spinal card were cut.
(ii) An incised wound over the right shoulder of size 6cmx1/2cmx3.5 cm ante posterior.
(iii) An incised wound of 2.5 cm x1 cmx1cm on dorsal aspect of proximal part of thumb of left hand.
(iv) A bruise of 2 cm x 1.5 cm on proximal part of index finger of left hand.
(v) An oval wound of gun shot injury at entrance size of 2cm x 1.5 cm on lateral aspect of proximal part of right upper arm.
(vi) An oval wound of gun shot injury entrance of size 0.8 cm x 0.5 cm just proximal to injury no. (v).
(vii) A circular gun shot wound of exit of size 2.25cm x 2 cm on medial aspect of proximal part of upper arm. An iron ball removed from the muscles.
Fracture of right humorous bone shaft also present there.
(viii) A gun shot wound of size 1.25 cm x 0.8 cm on anterior aspect of middle of right thigh. An iron ball removed from the muscles.
(ix) A gun shot wound of 1.7 cm x 0.8 cm below the above injury No.viii."
20. In the opinion of Dr. P.K. Jain, Ganpat died due to cutting of his head and excessive bleeding which caused comma, he died within 12 hours of the examination. Dr.P.K. Jain (PW9) 11 also confirmed that he found fatal injuries on the vital parts of the body of Ganpat. So many bones were found broken. Hence, we do not find any reason to disbelieve the opinion of the Dr. P.K. Jain which also corroborate the prosecution story and established that Ganpat died due to the above injuries which were sufficient to cause the death in the normal course. Those injuries were homicidal in nature.
21. The appellants were arrested by Dy.S.P. S.K. Kanchan (PW17) on the next day of the incident. On the memorandum of the appellants, he recovered arms which were used by the appellants during the incident. He further recovered the head of the deceased and the axe. With regard to this important fact, I.O. J.L. Ahirwar (PW15) has stated that on the intimation of the appellant-Moti (Ex.P29), he recovered an axe and seized the same as Ex.P32. The aforesaid article sent for chemical examination to the FLS Sagar. As per the FSL report (Ex.P31) human blood was found on the said axe article-H and other articles-A, C, D, E and F which also corroborated the prosecution story and proves that the said axe was used for causing the injuries to the deceased.
22. On the memorandum of the appellant-Moti (now dead) police also seized severed head of the deceased and bed sheet. Appellant-Moti clearly stated to the I.O. that he has hidden the 12 head of the deceased at the river bank under a hollow part of a tree trunk (khoh). Such type of place comes under the hidden place, it cannot be said that such places are open place where general public easily can approach, therefore, we are in agreement with the findings given by the learned trial Court against the appellants on the above grounds.
23. Learned counsel for the appellants has contended that the prosecution has failed to established that which injuries were caused by whom and by what weapon. Hence, Section 149 of IPC is not attracted in the present case to punish the appellants. In the opinion of this Court generally in case of group violence or mob attack, it is neither possible nor expected from the witnesses to remember exactly who caused a particular injury to the victim by what weapons.
24. In the case of State of Maharasthra Vs. Ramlal Devappa Rathod and Others [ (2015) 15 SCC 77] the Supreme Court has held as under :-
"Thus once a membership of an unlawful assembly is established it is not incumbent to any accused. In other words, mere membership of the unlawful assembly is sufficient and every member of an unlawful assembly is vicariously liable for the acts done by others either in the prosecution of the common object of the unlawful assembly or such which the members of the unlawful assembly knew were likely to be committed."13
Further, in the case of Shambhu Nath Singh Vs. State of Bihar [AIR 1960 SC 725] the Hon'ble Supreme Court has held as under :-
"6. Section 149 of the Indian Penal Code is declaratory of the vicarious liability of the members of an unlawful assembly for acts done in prosecution of the common object of that assembly or for such offences as the members of the unlawful assembly knew to be likely to be committed in prosecution of that object. If an unlawful assembly is formed with the common object of committing an offence, and if that offence is committed in prosecution of the object by any member of the unlawful assembly, all the members of the assembly will be vicariously liable for that offence even if one or more, but not all committed the offence. Again, if an offence is committed by a member of an unlawful assembly and that offence is one which the members of the unlawful assembly knew to be likely to be committed in prosecution of the common object, every member who had that knowledge will be guilty of the offence so committed. But "members of an unlawful assembly may have a community of object upto a certain point, beyond which they may differ in their objects, and the knowledge possessed by each member of what is likely to be committed in prosecution of their common object may vary not only according to the information at his command, but also according to the extent to which he shares the community of object and as a consequence of this the effect of Section 149 of the Indian Penal Code may be different on different members of the same unlawful assembly." Jahiruddin v. Queen Empress, ILR 22 Cal 306."
25. In the case of Gangaram Vs. State of Bihar [(2017) SCC Online SC 65] the supreme Court explained the determining factors of unlawful assembly and has held that "common object of the unlawful assembly has to be inferred 14 from the membership. The weapons used and the nature of the injuries as well as other surrounding circumstances, intention of the members of unlawful assembly can be gathered by nature and numbers of injuries inflicted."
26. Hence, we are of the considered view that the findings of the trial Court are entirely based on the evidence on record. There is no perversity in the aforesaid findings. The learned trial Court has rightly convicted the appellants. Keeping in view the number of injuries, kind of injuries, weapons used for commission of offence, number of accused persons and the role attributed to them, it is apparently established that they have the intention to kill deceased Ganpat by causing severe and fatal injuries on the vital and other parts of the body. The appellants were aggressors, they came together with common intention to kill the deceased and they beheaded the deceased.
27. In view of the foregoing and in light of the principles laid down by the Hon'ble Supreme Court, we find that there is no case to interfere in the findings of the learned trial Court. This appeal is against the conviction of the appellants, deserves to be dismissed. Hence, it is dismissed.
28. The appellants No.1, Bhawani Singh, Appellant No.2 Pyarelal Lodhi and Appellant No.5 Gopi Lodhi are on bail, their bail bonds are cancelled and they are directed to surrender 15 before the concerned trial Court within 15 days to undergo the remaining sentence, failing which the trial Court shall take appropriate action against aforesaid appellants for suffering the remaining sentence.
29. Copy of this judgment be sent to the trial Court for information and compliance alongwith the record immediately.
(S.K. GANGELE) (SMT. ANJULI PALO)
JUDGE JUDGE
Digitally signed by SANTOSH MASSEY
Date: 2018.01.08 13:01:23 +05'30'
santoshm