Madhya Pradesh High Court
Mahadev @ Jhadha And Ors. vs The State Of M.P on 20 September, 2012
Author: Rakesh Saksena
Bench: T.K.Kaushal, Rakesh Saksena
(1) Cr.A.No.449/2002
Cr.A.No.1166/2009
HIGH COURT OF MADHYA PRADESH: JABALPUR AFR
Division Bench: Hon'ble Shri Justice Rakesh Saksena
Hon'ble Shri Justice T.K.Kaushal
CRIMINAL APPEAL NO.449/2002
1. Mahadev Alias Jhadha, S/o Dhanua
Gond, aged about 70 years,
2. Sukhsen alias Dobaha S/o Dhanua Gond
aged about 55 years,
3. Rajbahore alias Jakala S/o Mahadeo
Gond, aged about 25 years,
4. Ramcharan alias Jugaha, aged about
20 years,
All residents of Bargawan, P.S.
Jaitpur, District Shahdol (M.P.)
.......Appellants
-Versus-
State of Madhya Pradesh .......Respondent
CRIMINAL APPEAL NO.1166/2009
1. Balkaran @ Badka S/o Mahadev Gond
aged about 49 years,
2. Dhodha @ Shivkaran S/o Mahadev Gond
aged about 36 years,
3. Lala Singh S/o Sukh Sen Gond,
aged about 29 years,
All residents of Bargawan, P.S.
Jaitpur, District Shahdol (M.P.)
.......Appellants
-Versus-
State of Madhya Pradesh
Through P.S. Jaitpur,
District Shahdol (M.P.)
.......Respondent
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For the appellants: Shri V.K.Lakhera, Advocate.
For the respondent: Shri Amit Pandey, Panel Lawyer.
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Date of hearing: 13/09/2012
Date of Judgment: 20/09/2012
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(2) Cr.A.No.449/2002
Cr.A.No.1166/2009
JUDGMENT
Per: Rakesh Saksena,J.
Since both the aforesaid appeals arise out of the common impugned judgment, this judgment shall govern the disposal of both the appeals.
2. Appellants have filed the above appeals challenging the judgment dated 22.01.2002 passed by Special Judge and Additional Sessions Judge, Shahdol in Sessions Trial No.161/2000 convicting them under sections 148 and 302/149 of the Indian Penal Code and sentencing them to rigorous imprisonment for 2 years and imprisonment for life with fine of Rs.1000/- on each count, respectively.
3. In short, the prosecution case is that in village Bargawan a Mahua tree was growing on the land of Manglu Gond, the deceased. Manglu Gond and his daughter Duasiya resided in a hut near the said tree. Accused/appellants used to collect Mahua from the said tree, but that was objected by deceased. A day before the incident, which occurred on 14.3.2000, when accused persons went to collect Mahua, Manglu made them to go away. Feeling aggrieved and annoyed, on 14.3.2000 at about 7:00 a.m. when they again reached there to collect Mahua, there occurred an altercation. Accused persons then assaulted Manglu with sticks, tangi and farsa, as a result of which Manglu sustained injuries and fell unconscious. It is said that accused persons tied his hands and legs with a rope and took him towards village. Sarpanch Ramdeen, Kotwar Lallaram (3) Cr.A.No.449/2002 Cr.A.No.1166/2009 (PW-2) and Duasiya (PW-6) carried Manglu to police station, Jaitpur where Manglu lodged report Ex.P/14. He was then sent to Primary Health Centre, Jaitpur for medical examination and treatment.
4. Dr. R.K.Verma (PW-5) at about 1:15 p.m. examined Manglu and found nine injuries on his body. He recorded injuries in MLC report Ex.P/7. Since he found serious injuries, he referred Manglu for further treatment and X-ray examination to district hospital, Shahdol. In the meanwhile, ASI Pradeep Dwivedi (PW-10) requisitioned Tehsildar, Jaitpur for recording dying declaration of Manglu. At 1:40 p.m. Tehsildar R.S.Pandey (PW-1) recorded dying declaration Ex.P/15 of Manglu in presence of Dr. R.K.Verma (PW-5). While Manglu was being shifted to district hospital,Shahdol, near village Madsa, at about 3:00 p.m., he succumbed to his injuries. His dead body was alighted from the bus and the intimation of his death was given to police station, Jaitpur by Munnilal Sahu. A marg 7/2000 Ex.P/5 was recorded at police station, Jaitpur. After conducting inquest, investigating officer Pradeep Dwivedi (PW-10) recorded the inquest memorandum Ex.P/4 and sent the dead body for postmortem examination to P.H.C. Jaitpur.
5. Dr. Rajesh Mithoria (PW-8) on 15.3.2000 conducted autopsy and submitted postmortem report Ex.P/12. He found serious injuries on the body of deceased including fractures of 6th,7th,8th & 9th ribs of left side. In his opinion, the death of deceased was caused due to shock because of excessive haemorrhage. After investigation, charge sheet was filed and the case was committed to the Court of Sessions for trial.
(4) Cr.A.No.449/2002Cr.A.No.1166/2009
6. On charges being framed, accused persons abjured their guilt and pleaded false implication. According to them, five amongst them had taken deceased to police station along with his daughter duasiya. They also examined witness Lalla (DW-1) in their defence.
7. Relying mainly on the evidence of witness Duasiya (PW-6), the evidence of dying declarations Ex.P/1, Ex.P/14, Ex.P/15 and the medical evidence, learned trial Judge held the appellants guilty and convicted and sentenced them as stated above. Aggrieved by their conviction, appellants have filed these appeals.
8. Shri V.K.Lakhera, learned counsel for the appellants, submitted that the evidence of sole eyewitness Duasiya (PW-6), who happened to be the daughter of deceased, was not reliable. Her presence at the spot was doubtful. Learned trial Judge erred in believing the evidence of dying declaration Ex.P/1 recorded by Tehsildar as well as first information report Ex.P/14 and statement of deceased (Ex.P/15) recorded by police during investigation as dying declarations. In the alternative, learned counsel submitted that since the incident occurred suddenly upon a quarrel between accused persons and the deceased when deceased did not let them collect Mahua, the conviction of appellants under section 302 of the Indian Penal Code was not justified, at the most, offence of accused persons could have been under section 304 Part I or II of the Indian Penal Code. On the other hand, Shri Amit Pandey, Panel Lawyer for the State, submitted that the evidence adduced by the prosecution was reliable. It was amply established that appellants, after forming an unlawful assembly, committed murder of deceased, therefore, (5) Cr.A.No.449/2002 Cr.A.No.1166/2009 there was no ground to call for interference in the impugned judgment of conviction.
9. We have heard the learned counsel for the parties, perused the impugned judgment and the evidence on record carefully.
10. It has not been disputed from the side of accused persons that deceased died a homicidal death. From the evidence of eyewitnesses Duasiya (PW-6), village Kotwar Lallaram (PW-2), investigating officer Pradeep Dwivedi (PW-10), the first information report Ex.P/14 lodged by deceased and the dying declaration Ex.P/1 recorded by Tehsildar R.S.Pandey (PW-1), it stood established that accused/appellants caused injuries to deceased. Dr. R.K.Verma (PW-5), who examined the injuries of deceased, found nine injuries on his body viz. (i) Bruise 6 x 2½ inch on back of right side of chest;
(ii) contusion on left eyelid; (iii) contusion on upper eyelid of right eye; (iv) Abrasion on right side of forehead above right eyebrow; (v) diffused swelling on front of right sole with skin deep abrasion; (vi) lacerated wound 1x 1/2cm on little finger of right foot; (vii) incised wound ½ x 1/4cm on right calf; (viii) swelling with abrasion on left calf and (ix) swelling on both palms. Except 7th injury which was caused by some sharp and pointed object, other injuries were caused by hard and blunt object. MLC report Ex.P/7 was written and signed by him. When deceased expired, postmortem examination of his body was conducted by Dr. Rajesh Mithoria (PW-8) who also found same injuries on the body of deceased. On internal examination of the body, he found 6th,7th, 8th & 9th ribs of left side of deceased (6) Cr.A.No.449/2002 Cr.A.No.1166/2009 fractured. There was laceration of left lung which had resulted in shifting of middle and lower lobe of lung. According to him, these injuries were caused to deceased by some hard and blunt object. He, however, stated that cavity found in left apex part of the left lung of deceased was probably caused by tuberculosis. The cause of death of deceased was shock due to excessive haemorrhage because of fracture of ribs. He had written and signed the postmortem report Ex.P/12. From the evidence of these witnesses, we find it established that deceased died due to injuries found on his body and that his death was homicidal in nature.
11. Now the question before us is whether accused/appellants caused injuries to deceased which resulted into his death ?
12. Prosecution examined Duasiya (PW-6) and Pawan Singh (PW-9) as eyewitnesses of the incident. Pawan did not support the prosecution case; he was declared hostile. As far as Duasiya (PW-6) is concerned, she was the daughter of deceased. She was a young girl of about 13-14 years of age. She stated that she knew all the accused persons. Accused persons used to pick up Mahua from her field. On the day of occurrence, at about 8-9 o' clock in the morning when she was in her hut and her father Manglu was collecting Mahua, accused Balkaran, Dhodha, Jakla, Ramcharan and Lala reached there armed with lathi and tangi and assaulted Manglu. She stated that accused Dobaha alias Sukhsen was not amongst them. Due to injuries when Manglu fell down unconscious, accused persons tied him with a rope and carried him to the door of (7) Cr.A.No.449/2002 Cr.A.No.1166/2009 Sarpanch Ramdeen. She saw incident from some distance. Since Sarpanch was not at his house it took about an hour for his coming. Thereafter accused Dhoddha and Lala took Manglu to Jaitpur police station where Manglu lodged the report. Thereafter Manglu was taken to Jaitpur hospital. While he was being taken to Shahdol hospital he expired on way. This witness was subjected to a lengthy cross-examination. Learned counsel for the appellants pointed out some omissions in her statement, but on perusal of Ex.D/1, her police statement, we find that it was merely the manner of her narrating the incident, which was different, else, substantially her evidence was intact. There appeared no reason for this witness to speak false against the accused persons. She frankly stated that accused Dobaha alias Sukhsen was not present in the incident. She also admitted that number of persons had assembled at the house of Sarpanch and on asking of Sarpanch, accused Balkaran, Dhodha, Ramcharan, Lala and Jakla had carried deceased to Jaitpur. She also had gone to Jaitpur. Though PW-6, in her cross-examination, stated that in the police station, she lodged the report and her father put thumb impression on it and that her father was feeling difficulty in speaking, but in the same breath, she stated that police inspector after recording the statement of deceased, asked him to be taken to hospital immediately as his condition was serious. Evidence of Duasiya (PW-6), after a careful scrutiny, appears to us trustworthy. However, from her evidence, the presence and participation of accused Dobaha alias Sukhsen in the incident becomes doubtful. (8) Cr.A.No.449/2002 Cr.A.No.1166/2009
13. As far as evidence of dying declaration Ex.P/1 recorded by Tehsildar R.S.Pandey (PW-1), learned counsel for the appellants submitted that it was suspicious because the condition of deceased was serious and he was throughout unconscious. Tehsildar R.S.Pandey categorically stated that on a requisition of police station Jaitpur on 14.3.2000 he went to record dying declaration of Manglu in Government hospital, Jaitpur. He obtained certificate about the fitness of Manglu from Doctor and then at 1:30 p.m. recorded dying declaration Ex.P/1. Manglu stated that in the morning at about 7 o'clock while he was sitting beneath Mahua tree, Balkaran, Dhoddha, Jhaudha, Sukhsen, Ramcharan and Lala came and assaulted him with lathi, danda, farsa and tangi. He suffered injuries all over his body. Since he did not premit them to collect Mahua which they wanted to collect forcibly, they assaulted him. He became unconscious for sometime, but regained consciousness on way. Though in the statement of this witness name of accused Jakala alias Rajbahore was not indicated, but on perusal of Ex.P/1 his name was found mentioned. He obtained thumb impression of Manglu. PW-1 stated that since there was no bed in the hospital, he recorded the statement of Manglu while lying on the floor. There were injuries all over his body. He himself had asked Manglu whether he could give his statement whereupon Manglu replied in affirmative. He recorded his statement in Ex.P/1 as narrated by him. He was fully conscious. PW-1 denied the suggestion that Manglu was not alive. No serious challenge was made to the statement of this witness in the cross-examination, otherwise also there appeared no reason why (9) Cr.A.No.449/2002 Cr.A.No.1166/2009 a Tehsildar, an independent Government officer, would record a false dying declaration particularly when he had no animus against accused persons.
14. The aforesaid dying declaration Ex.P/1 finds corrobortion from the evidence of Dr.R.K.Verma (PW-5), who certified that deceased was fully conscious when he gave his statement Ex.P/1, from the first information report Ex.P/14 recorded by inspector Pradeep Dwivedi (PW-10) and also from the statement of deceased (Ex.P/15) recorded by PW-10 under section 161 of Cr.P.C. Since Ex.P/14 and Ex.P/15 were recorded on the basis of information given by deceased immediately before his death, undisputedly they were relevant and admissible as dying declarations under section 32 of the Indian Evidence Act. In these statements, deceased named all the accused persons and said that they assaulted him with lathi, farsa and tangi and carried him after tying with a rope towards the village. Sarpanch Ramdeen, Kotwar Lallaram and his daughter Duasiya brought them to police station. We are unable to accept the argument advanced by learned counsel for the appellants that the statement in the F.I.R. Ex.P/14 was recorded on the basis of information given by Duasiya and not by deceased. No doubt Duasiya (PW-6) stated that first information report was recorded on her information, but as we have already discussed it was under confusion as she clearly stated that statement of deceased was recorded at police station. But in view of the categorical statement of Duasiya (PW-6) that accused Dobaha (10) Cr.A.No.449/2002 Cr.A.No.1166/2009 alias Sukhsen was not present in the incident, we feel doubt about his presence and participation in the incident.
15. Investigating Officer Pradeep Dwivedi (PW-10) deposed that on 14.3.2000 while he was posted as A.S.I. at police station, Jaitpur, he recorded first information report Ex.P/14 on the basis of information given by Manglu Singh. Ramdeen Sarpanch, Lalla and Duasiya had also come with Manglu. After recording the report, he immediately sent Manglu to Jaitpur hospital and also sent a requisition to Tehsildar for recording his dying declaration. On the same day, he also went to hospital and recorded statement Ex.P/15 of Manglu. First Information Report Ex.P/14 and the statement Ex.P/15 were recorded as stated by Manglu. He firmly denied that report Ex.P/14 was not lodged by deceased. He had sent a copy of report to Magistrate and obtained receipt Ex.P/18. Absolutely no accusation has been levelled against PW-10 that he recorded false F.I.R. or statement because of any illwill or animus.
16. After a careful scrutiny of the evidence of eyewitness Duasiya (PW-6), evidence of dying declaration Ex.P/1 recorded by Tehsildar (PW-1), First Information Report Ex.P/14 and the police statement Ex.P/15, we find them truthful and trustworthy. From the statement of deceased made in F.I.R. Ex.P/14 and also from the evidence of Duasiya (PW-6), it is revealed that accused persons entertained grudge against deceased because he did not permit them to collect Mahua from the tree. Thus, in our opinion, it has been established beyond a reasonable doubt that accused/appellants, except appellant Sukhsen alias Dobaha, after (11) Cr.A.No.449/2002 Cr.A.No.1166/2009 forming an unlawful assembly, went to collect Mahua and on being objected by deceased, assaulted him with weapons and thereby caused his death.
17. Learned counsel for the appellants next submitted that in the facts and circumstances of the case, the conviction of appellants under section 302/149 I.P.C. was not justified since the incident occurred suddenly without any premeditation on the part of appellants.
18. Duasiya (PW-6) admitted that tree of Mahua belonged to Government. Accused Ramcharan and other persons collected Mahua from there and did not let other persons collect it. If anybody else collected Mahua they used to snatch away. Since a long time she saw accused Balkaran and others collecting Mahua. She also admitted that because Balkaran and others did not permit them to take Mahua she felt aggrieved. Lallaram (PW-2) stated that tree of Mahua was standing between Bharua and Bhargawan. It was a Government land and accused persons used to collect Mahua from the tree. Though deceased in his statements Ex.P/14 and Ex.P/15 stated that the land on which Mahua tree was standing belonged to him, but it appears doubtful that Mahua tree was of his possession or ownership. It was clearly reflected from the dying declaration Ex.P/1 recorded by Tehsildar and the first information report that on the day of occurrence when accused persons came to collect Mahua he prevented them, therefore, they opened assault on him. It appears that when accused persons tried to collect Mahua forcibly, despite the resistence offered by deceased, the incident occurred (12) Cr.A.No.449/2002 Cr.A.No.1166/2009 suddenly. In these circumstances, the possibility of eruption of a sudden quarrel cannot be ruled out. It is also significant to note that Duasiya Bai admitted that from the house of Sarpanch accused Dhoddha and Lala carried deceased to Jaitpur. Lallaram (PW-2) too stated that Lala, Dhodha alias Shivkaran and Sukhsen also went to police station with deceased. This conduct of accused persons gives some measure of indication again that they did not intend to commit murder of deceased, but since they assaulted deceased with sticks and caused number of serious injuries on his body which were sufficient to cause his death, it can be inferred that they either intended to cause death or to cause such bodily injuries to deceased as were likely to cause his death, making them liable to be convicted under section 304 Part-(I) I.P.C.
19. For the reasons stated hereinabove, we are of the opinion that prosecution failed to establish beyond doubt that appellant No.2 Sukhsen alias Dobaha of Criminal Appeal No.449/2002 participated in commission of offence. Accordingly, his conviction on all the charges is set aside. He is acquitted. The conviction and sentence of accused/appellants No.1 Mahadev alias Jhadha, No.3 Rajbahore alias Jakala and No.4 Ramcharan alias Jugaha of Criminal Appeal No.449/2002 and appellants No.1 Balkaran, No.2 Dhodha alias Shivkaran, No.3 Lala Singh of Criminal Appeal No.1166/2009 under section 302/149 I.P.C. is set aside, instead they are convicted under section 304 Part-I/149 I.P.C. and sentenced to R.I. for 10 years. Their conviction and sentence under section 148 I.P.C. is affirmed. Except appellant Mahadev alias (13) Cr.A.No.449/2002 Cr.A.No.1166/2009 Jhadha, other appellants are reported to be in jail since the year 2000. If they have served out their sentences, they be released if not required in any case.
20. Appeals partly allowed.
A copy of this judgment be kept in the record of Criminal Appeal No.1166/2009.
(Rakesh Saksena) (T.K.Kaushal) b Judge Judge