Madhya Pradesh High Court
Anand Sharma @ Banti Sharma & Ors. vs The State Of M.P. on 27 March, 2018
Author: Nandita Dubey
Bench: Nandita Dubey
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Criminal Appeal No. 159 of 2005
Parties Name Anand Sharma @ Banti Sharma and others
vs
State of Madhya Pradesh
Bench Constituted Hon'ble Shri Justice S.K. Gangele &
Hon'ble Smt. Justice Nandita Dubey
Judgment delivered by Hon'ble Shri Justice S.K. Gangele
Whether approved for reporting Yes/No
Name of counsels for parties For appellants No.1 to 3: Shri Abhishek
Tiwari, [Amicus curiae]
Shri Rama Shanker Yadav, counsel for
appellant No.4
For respondent/State: Shri Aditya Jain,
Dy. Government Advocate
Law laid down
Significant paragraph numbers
JUDGMENT
[Pronounced on : 27.03.2018]
1. Appellants have been filed this appeal against the judgment dated 04.01.2005 passed in Sessions Trial No.764/03 by Special Judge, Jabalpur.
Appellants were prosecuted for commission of offence punishable under Sections 302 and 302/34 of IPC and under Section 3 (2) (v) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act.
2. Prosecution story, in brief is that, on 11.09.2003 at 8 O'clock in the night, appellants had killed deceased persons namely; Rajesh Vishwakarma and Anil Ahirwar. Appellants were armed with Sword, Khukari and knife.
One of the appellant Mithilesh Giri, was not armed with any weapon, however, he had taken out the knife of another co-accused and had inflicted
-:- 2 -:-
injury. Investigating Officer (PW-15) received information on phone about the incident, he went on the spot and noticed that two persons were laying dead on the spot. He recorded merg and prepared spot map. Thereafter, on the next day i.e. 12.09.2003 at around 10.05 in the morning, FIR was registered. Police conducted investigation and filed chargesheet. Appellants abjured their guilt during trial. They pleaded that they have been falsely implicated in the case. After trial, trial Court has held the appellants guilty for commission of offence punishable under Sections 302 and 302/34 of IPC and awarded punishment of Life on two counts with fine amount. Trial Court acquitted the appellants for commission of offence punishable under Sections 3 (2) (v) of SC/ST Act.
3. Learned counsel for the appellants have submitted that FIR was recorded by the Investigating Officer (PW-15) himself hence, it is not an FIR. This can be termed as a statement recorded by the Police Officer under Section 161 of Cr.P.C. It is further submitted that alleged eye witnesses (PW-11) Pradeep Patel and (PW-12) Sonu Singh @ Raviraj were to the IO on the next day of incident itself. However, IO recorded their statements under Section 161 of Cr.P.C., on the next day. The behaviour of witnesses is strange, they did not inform anybody at the time of occurrence of incident hence, the trial Court has committed an error in relaying on the evidence of
-:- 3 -:-
aforesaid two eye witnesses. Seizure and recovery is also doubtful. There is no sufficient evidence against the appellants to hold them guilty for commission of offence beyond reasonable doubt. Learned counsel has further submitted that trial Court has ordered that both sentences shall run consecutively, however, the incident had occurred at the same time hence, both the sentences shall run concurrently.
4. There are two eye witnesses in the case (PW-11) Pradeep Patel and (PW-12) Sonu Singh. Trial Court placed reliance on the evidence of aforesaid two eye witnesses. It is a fact that evidence of aforesaid witnesses was recorded on the next day i.e. 2 O'clock in the night by the IO.
5. (PW-1) Pooja Sharma is the wife of deceased Rajesh. She deposed that somebody had snatched motorbike of deceased. She turned hostile.
(PW-2) Ramji Lal also turned hostile. (PW-3) Sukhlal is father of deceased Anil. He deposed that I received information in the night that my son was dead. Evidence of (PW-4) and (PW-5) Chhoti Bai and Gopal have no consequence. (PW-6) Rakesh Vishwakarma only deposed that in the morning Pradeep (PW-11) has told him that appellants had killed deceased.
(PW-7) Manoj Yadav verified the fact that and he signed Ex.P-3 and Ex.P-
4. (PW-9) Ved Prakash is witness of seizure of Ex.P-5.
-:- 4 -:-
6. (PW-11) Pradeep Patel, deposed that at around 8 O'clock, I along with my companion had gone to recover the amount of Cable network [Disk]. When I reached at the canal in the night, then I noticed that some persons were quarreling from a distance of 25 feet. Accused/appellant were beating Rajesh. Accused Satyam was armed with Sword. Accused Bablu was armed with Khukari. Accused Banti was armed with knife. Accused Mithlesh was standing there. Accused Satyam had inflicted blow of Sword on the head of Rajesh thereafter, other accused persons inflicted blows of Khukari and Knife to the deceased. Mithilesh had taken out Khukari from other accused and he had inflicted blows at the head of Rajesh. Deceased Anil was laying there. He had inflicted injuries on his body. The accusd persons had beaten deceased Anil. After committing 'marpeet', they had throw Khukari and knife on the place of incident. Thereafter, I came to my house. After reaching house, I informed the police on phone. Police went at the spot after 15-20 minutes. I also went there with Cameraman. Police seized Khukari and knife and I singed Ex.P-8, Ex-P-9, Ex-P-10 and Ex.P- 11 memorandums and seizure Ex.P.12, Ex.P-13 and Ex-P-14. In his cross-
examination, he deposed that after reaching the place of incident, I had heard the sound of filthy languages and thereafter, I went towards place of incident then, I came to know that accused persons had been beating. I
-:- 5 -:-
witnessed the accused persons had been beating deceased. He further admitted the fact that I have not tried to inform the family members of the deceased and Mr. Banerjee, Town Inspector did not record my statement at the spot, however, I was present on the spot for one and half hour. At around 2 O'clock in the night, Town Inspector Banerjee recorded my statement and at that time Sonu was also there.
7. (PW-12) Sonu Singh @ Ravi Raj, is another eye witness. He deposed that I and Pradeep (PW-11) were walking near canal which is adjacent to railway line. We had noticed that some persons were quarreling, we stopped there. Thereafter, I had seen that accused Satyam was armed with Sword, accused Banti was armed with Khukhari and accused Bablu was armed with knife were beating deceased. Mithlesh was standing there. Accused had inflicted injuries to Rajesh and after that, all the accused persons had inflicted injuries to Anil, then they had thrown their weapons. Thereafter, we went to the house of Pradeep and after half an hour to Police Station Adhartal and lodged the report. He admitted in his cross-examination that Mithlesh did not have had any weapon, however, he had been beating the deceased also. He further admitted that he did not reach near the injured persons. Subsequently, I stayed at the place of incident for an hour. The relatives of deceased persons also reached on the spot. (PW-13) admitted
-:- 6 -:-
his signature on Ex.P-P-8, Ex.P-9, Ex-P10 and Ex-P-11 and also on memorandum and seizure memo Ex.P-12, Ex-P-13, Ex-P-14. However, he denied the fact that police had enquired before him from the accused persons and seized any weapon.
8. (PW-15) Sukant Banerjee, deposed that on 11.09.2003, I was posted as Incharge, Station House Officer, Police Station Adhartal, Jabalpur. On 8 O'clock when I was on patrolling, I received information about the serious incident on wireless. I immediately reached at Gandhi Nagar and noticed that dead body of one person was laying there. Mr. Gopal Prasad told me that the dead body is of his son Rajesh Vishwakarma. I noticed the fact that from some distance another dead body was laying. Sukhlal Ahirwar told me that the dead body is of his son Anil. There were injuries caused by sharp edged weapon. Thereafter, I send the message to register Merg and prepared Panchnama of dead bodies Ex.P-3 and Ex.P-4. I also prepared spot map which is Ex.P-19 and signed the same. Thereafter, I seized some articles, motorbike, plain earth and red earth vide seizure memo Ex-P-12 and I singed the same. From the dead body of Anil, I seized knife, Khukari and one pair sleepers vide seizure memo Ex.P-13 and I singed the same.
Both the dead bodies were sent for post-mortem. Clothes of the deceased were seized vide seizure memo Ex.P-5. I recorded statements of Pradeep
-:- 7 -:-
Patel and Sonu Patel and then, I lodged FIR at the Police Station which is Ex.P-20 and I singed the same. I recorded statements of another accused persons. On 16.09.2003 accused persons were arrested and thereafter, motorbike was also seized vide seizure memo Ex.P-21. I recorded memorandum Ex-P-8 of accused Mithlesh, memorandum of accused Bablu Ex.P-9, memorandum of Ex.P-10 of Anand, memorandum of accused Satyam Ex.P-11. Thereafter, I seized sword and some clothes vide seizure memo Ex.P-8. In his cross-examination, he denied the fact that Pradeep had given him any information on telephone, but he admitted the fact that at the time of preparation of map, Pradeep, Anil and Sonu were also present. I used the information given by Sonu in preparation of map. He admitted the fact that I did not record his statement on 11 th and neither registered the report on 11th.
9. There are two eye witnesses Ex.P-11 and Ex-P-12. Learned counsel for the appellants tried to discard their testimony on the ground that they were present at the time of preparation of map, however, Investigating Officer did not record their statements at that time under Section 161 of Cr.P.C. and their behaviour is strange. Both the witnesses are chance witnesses, in our opinion their testimony is quite normal, they had witnessed the incident thereafter, they went their home and immediately
-:- 8 -:-
within half an hour, they reached at the place of incident. One of the witness reached on the spot with cameraman person. Incident had happened at around 8 O'clock in the night. Their statements under Section 161 of Cr.P.C., were recorded by Investigating Officer on the next day at 2 O'clock in the night, it means after six hours of incident. In our opinion, recording the statements after six hours of the incident is not a delay in recording the statements of the witnesses.
10. Apex Court in the case of Harbeer Singh vs. Sheeshpal and others [2016] 16 SCC 418 has held as under in regard to delay in recording statement of the accused persons under Section 161 of Cr.P.C.
""16. As regards the incident of murder of the deceased, the prosecution has produced six eye-witnesses to the same. The argument raised against the reliance upon the testimony of these witnesses pertains to the delay in the recording of their statements by the police under Section 161 of Cr.P.C. In the present case, the date of occurrence was 21.12.1993 but the statements of PW1 and PW5 were reed after two days of incident, i.e., on 23.12.1993.
The evidence of PW6 was reed on 26.12.1993 while the evidence of PW11 was reed after 10 days of incident, i.e., on 31.12.1993. Further, it is well-settled law that delay in recording the statement of the witnesses does not necessarily discredit their testimony. The Court may rely on such testimony if they are cogent and credible and the delay is explained to the satisfaction of the Court. [See Ganeshlal Vs. State of Mahrashtra, (1992) 3 SCC 106;
-:- 9 -:-
Mohd. Khalid Vs. State of W.B., (2002) 7 SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6 SCC 1].
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC 371, is an authority for the proposition that delay in reing of statements of the prosecution witnesses under Section 161 Cr.P.C., although those witnesses were or could be available for examination when the Investigating Officer visited the scene of occurrence or soon thereafter, would cast a doubt upon the prosecution case. [See also Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs. State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere with the observations of the High Court on the point of delay and its corresponding impact on the prosecution case."
Witnesses were present at the time of preparation of map [Ex-P-19] which was prepared by PW-15, they had signed the map. [PW-15] Investigating Officer in his evidence specifically deposed that on the information of one of the witness Sonu, he prepared the spot map. It means that the witnesses had narrated incident immediately to Investigating Officer. It is not expected from witnesses who have chance witnesses to inform the incident to the family members of deceased.
-:- 10 -:-
11. Next argument which is forcefully argued by the learned counsel for the appellants is that alleged FIR [Ex-P-20] is not a FIR, it is a statement of witnesses because it was recorded by the Investigating Officer himself on the next day of incident i.e. on 12.09.2003 at 10.05 AM. It is a fact that IO had information about the incident, he had recorded the statements of eye witnesses (PW-11) and (PW-12) at 2 O'clock in the night itself under Section 161 of Cr.P.C., he could have recorded FIR at that time itself. It can be a technical mistake or faulty investigation. However, on this ground alone, evidence of alleged eye witnesses could not be discarded. The apex Court in the case of Yogesh Singh vs. Mahabeer Singh and others, (2017) 11 SCC 195 has held about the discrepancy or lapses in investigation.
"30. In C. Muniappan and Others vs. State of Tamil Nadu, (2010) 9 SCC 567, this Court explained the law on this point in the following manner:
"55. There may be highly defective investigation in a case. However, it is to be examined as to whether there is any lapse by the IO and whether due to such lapse any benefit should be given to the accused. The law on this issue is well settled that the defect in the investigation by itself cannot be a ground for acquittal. If primacy is given to such designed or negligent investigations or to the omissions or lapses by perfunctory investigation, the faith and confidence of the people in the criminal justice administration would be eroded. Where there has been negligence on the part of the investigating agency or omissions, etc. which resulted in defective investigation, there is a legal obligation on the part of the court to examine the prosecution evidence dehors such lapses, carefully, to find out whether
-:- 11 -:-
the said evidence is reliable or not and to what extent it is reliable and as to whether such lapses affected the object of finding out the truth. Therefore, the investigation is not the solitary area for judicial scrutiny in a criminal trial. The conclusion of the trial in the case cannot be allowed to depend solely on the probity of investigation."
31. In the present case, the High Court found that the testimonies of the eye witnesses were not reliable. In this connection, the High Court noted that the very claim of the witnesses that on the fateful day, the deceased and his daughter PW5, Lajjawati were going to their house situated in the north of the village for any particular reason, did not carry any weight in view of the fact that the deceased used to reside in his self-contained shelter situated near the tube well which was far removed from the Village and where he used to retire each day before sunset. We are not inclined to endorse this finding of the High Court, particularly in light of the deposition of PW1 and PW5, who stated under oath that on the fateful day, the deceased and PW5 were going to another village via their village house.
32. The High Court also noted that there was no reason for the deceased to go through the fields of the accused since there was a straight pathway for accessing the village from the tube-well. Moreover, the animosity between the informant and the accused persons was so deep that they had put restriction upon themselves not to trespass or pass through the fields of their opponents. We are not in agreement with this observation of the High Court as well in the light of the categorical finding by the trial court that along the north also there were fields of the very same accused, meaning thereby that in either case the deceased while going from his tube-well to his house in the village, would necessarily have to pass through the fields of the accused. It has also been submitted by the counsel on behalf of the appellant that this was precisely the reason why the deceased used to retire to his separate citadel each day before sunset and carry his gun and cartridge-strip with him.
-:- 12 -:-
33. As far as the evidence of PW5 is concerned, the High Court found that it was illogical that the dress of a child who was living with her parents in a different establishment would be kept in the custody of someone else who was living elsewhere, particularly in the light of the possessive attitude of children that urges them to cling to their most precious belongings. In this regard, it has been submitted by the counsel for the appellant that while the daily wears of PW5 were kept at the tube-well, fancy clothes for occasions were kept at the village house. Be that as it may, we are not inclined to agree with this reasoning of the High Court. Without attempting to indulge in any form of notional psychoanalysis of the child witness (PW5), we wish to emphasize that she was not subjected to any cross-examination on this point and hence any form of conjecture on this point would be wholly improper on our part. However, the learned counsel for the respondents have submitted that PW5 was a tutored witness relying upon the fact that she had not taken a bath before leaving the house with her father to purportedly attend a marriage ceremony. We find that this contention is wholly frivolous having no material bearing on the present case.
34. The learned counsel for the respondents has further sought to attack the testimony of this prosecution witness on the ground of delay in recording of her statement by the Investigating Officer. In support of this submission, learned counsel has relied upon the judgments of this Court in State of U.P. Vs. Ashok Dixit and Anr., (2000) 3 SCC 70; Vijaybhai Bhanabhai Patel Vs. Navnitbhai Patel & Ors., (2004) 10 SCC 583; Jagjit Singh @ Jagga Vs. State of Punjab, (2005) 3 SCC 689]. However, we find that none of these cases help the case of the respondents since Vijaybhai Bhanabhai Patel Vs. Navnitbhai Patel & Ors., (2004) 10 SCC 583, does not pertain to the case of a child witness and in State of U.P. Vs. Ashok Dixit and Anr., (2000) 3 SCC 70, and Jagjit Singh @ Jagga Vs. State of Punjab, (2005) 3 SCC 689, delay in recording of evidence was not per se held to be fatal to the prosecution case but the testimony of the child witness in each case was found to be incredible on account of material contradictions and lack of independent corroboration. We find that this is
-:- 13 -:-
not the case here. In this context, we may note that the Trial Court has observed that PW5 was cross-examined on practically every detail of the prosecution story and her statement corroborated every part thereof. Moreover, the delay in recording of the statement of PW5 was not unexplained. It was rightly observed by the learned Trial Judge that the delay was on account of the fact that the Investigating Officer wanted to assure himself of the veracity of her statement and hence, she was examined after she had time to recover from the shock of the incident and compose herself. Under these circumstances, any delay in examining this witness under Section 161 of Cr.P.C. will not prejudice the prosecution.
35. Further, the High Court opined that when the bicycle was being kept regularly in the house of the deceased situated at the tube-well, it was very difficult to accept the explanation for the deceased to go to his village house. The High Court noted that this was reinforced by the fact that as per evidence of PW5, the brother-in-law of the deceased or the maternal uncle of PW5, namely, Ghanshyam was not in the village in the morning when the incident had occurred. However, we feel that there appears to be some confusion on this point. According to the versions of PW1 and PW2, it was the brother-in-law of Rajvir (brother of the deceased), namely, Amar Singh who had visited the house of the deceased and had taken the bicycle of the deceased on the night prior to the date of the incident and that he was also present on the spot at the time of the incident. Now, it is true that PW5 had stated in her deposition that "Mama" (maternal uncle) had taken the bicycle, it is quite probable that she meant to refer to Amar Singh and not Ghanshyam (her real maternal uncle being the brother of her mother). Hence, there is no conflict in the evidence of the eyewitnesses on this point.
36. A related contention raised on behalf of the respondents is that the story of marriage was introduced for the first time by the prosecution witnesses during trial and the same was not even proved. However, we must note the observations of the learned Trial Judge which were to the effect that the statements of the prosecution witnesses under Section 162 Cr.P.C. were conspicuously silent on this part, thereby implying that the
-:- 14 -:-
Investigating Officer did not care to inquire about it during investigation. Thus, in the light of the position of law examined above vis-à-vis effect of lapses in the investigation, we are not prepared to dispense with the accusation merely on this point especially when the Trial Court concluded that there was no material contradiction in the statements of PW1 and PW5. "
12. FIR is information about the incident. It is not an encyclopedia of facts. Investigating Officer specifically deposed that he received the information about the commission of heinous offence on a wireless set.
Thereafter, he immediately, reached on the spot. This fact has been established that Investigating Officer had information about the commission of offence because he immediately reached on the spot and promptly prepared the spot map also. In such circumstances, the defect or lapse in recording the FIR would not render investigation faulty or illegal and on this basis, it cannot be held that there is no evidence against the accused persons. One of the witness Pradeep Patel (PW-11) deposed that he informed the police station on a phone about the incident. However, IO has controverted the aforesaid fact. On the aforesaid ground, the testimony of aforesaid witnesses could not be discarded because it is well settled law that minor discrepancy is not given to undue emphasis. The apex Court in the case of Yogesh Singh vs. Mahabeer Singh and others (supra) has held as under in regard to discrepancies in evidence:
-:- 15 -:-
"29. It is well settled in law that the minor discrepancies are not to be given undue emphasis and the evidence is to be considered from the point of view of trustworthiness. The test is whether the same inspires confidence in the mind of the Court. If the evidence is incredible and cannot be accepted by the test of prudence, then it may create a dent in the prosecution version. If an omission or discrepancy goes to the root of the matter and ushers in incongruities, the defence can take advantage of such inconsistencies. It needs no special emphasis to state that every omission cannot take place of a material omission and, therefore, minor contradictions, inconsistencies or insignificant embellishments do not affect the core of the prosecution case and should not be taken to be a ground to reject the prosecution evidence. The omission should create a serious doubt about the truthfulness or creditworthiness of a witness. It is only the serious contradictions and omissions which materially affect the case of the prosecution but not every contradiction or omission. (See Rammi @ Rameshwar Vs. State of M.P., (1999) 8 SCC 649; Leela Ram (dead) through Duli Chand Vs. State of Haryana and Another, (1999) 9 SCC 525; Bihari Nath Goswami Vs. Shiv Kumar Singh & Ors., (2004) 9 SCC 186; Vijay @ Chinee Vs. State of Madhya Pradesh, (2010) 8 SCC 191; Sampath Kumar Vs. Inspector of Police, Krishnagiri, (2012) 4 SCC 124; Shyamal Ghosh Vs. State of West Bengal, (2012) 7 SCC 646 and Mritunjoy Biswas Vs. Pranab @ Kuti Biswas and Anr., (2013) 12 SCC
796)."
13. The next question is seizure of weapon. It is argued by learned counsel for the appellants that the weapons were seized from the spot and this is strange phenomena. We do not find any substance in the arguments.
Accused persons had thrown their weapons on the spot. Even though the apex Court in the case of Yogesh Singh vs. Mahabeer Singh and others,
-:- 16 -:-
(supra) has held that non-recovery of weapons does not falsified the prosecution evidence where there is ample unimpeachable ocular evidence.
"47. The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel no need to address this issue since it had already been validly discarded by the Trial court while convicting the respondents. In any case, it is an established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular evidence. [See Lakahan Sao Vs. State of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs. Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit Singh and Anr. Vs. State of Punjab, (2013) 12 SCC 746]."
14. Two persons were killed. [PW-10] Dr. Aroon Jain, performed the post-mortem of the deceased. He deposed that he performed autopsy of the deceased persons and noticed following injuries on the person of the body of the deceased:
"Rajesh s/o Gopal Vishwakarma:
"pksV dzekad 01& yxHkx 10 dVs gq;s ?kko gksus ls cka;s ,oa nka;s nksuksa rjQ ftudk vkdkj fHkUu fHkUu izdkj dk FkkA pksV dk vkdkj yxHke 3 bap X2bapX1bap FkkA bu pksVksa ls lksus ds LVjue ¼chp dh gM~Mh½ chp ls dV x;h FkhA pksV dzekad 02& dVk gqvk ?kko ftldk vkdkj 6X3X3 bap FkkA psgjs esa nka;s psgjs ls cka; psgjs dh vksj yacor FkkA bl pksV ls nkfgus vka[k dV x;h FkhA psgjs ds Åij dk tcM+k] mlds uhps dh ekalisf'k;ksa] jDr okgfu;ka] ukd dV x;h FkhA pksV dzekad 03& psgjs ds cka;h rjQ dbZ dVs gq;s ?kko FksA dqN dVs gq;s ?kkos psgjs ds nka;sa rjQ FksA bu pksVksa dk vkdkj yxHkx 2X1@2 bap FkkA rFkk ;s pksV la[;k esa 6 FkhA pksV dzekad 04& ,d dVk gqvk ?kko tks xys esa fLFkr FkkA tks vkdkj esa frjNk FkkA bldk vkdkj 4X2XMs<+ bap FhA bl pksV ls xys ik;h tkus okyh ekalisf'k;ka jDr okfgu;ka rFkk 'okal uyh dV x;h FkhA
-:- 17 -:-
pksV dzekad 05& ,d dVk gqvk ?kko nkfgus dku ds ihNs dh rjQ ftldk vkdkj 4X2X2 bap FkkA tks flj ij nkfgus Vasijy Hkkx esa fLFkr FkkA ftlesa Vsaijy gM~Mh dV x;h FkhA pksV dzekad 06& ,d dVk ?kko tks cka;s dku ij fLFkr FkkA ftldk vkdkj 3 X2XMs<+ bap FkkA pksV dzekad 05& fQj ,d dVk ?kko tks flj ds nkfgus rjQ lkeus dh vksj fLFkr Fkk ftldk vkdkj 3X1X1 bap FkkA bl pksV ls lkeus dh fQzaVy gM~Mhg dV x;h FkhA e`rd ds 'kjhj ls ik;h x;h lHkh ckg~; pksVsa fdlh rst] dBksj /kkjnkj gfFk;kj ls igqapk;h x;h izrhr gksrh FkhA lHkh pksV e`R;q ds iwoZ igqapk;h x;h FkhA pksVksa ij jDr mifLFkr ik;k x;k FkkA 4- vkarfjd ijh{kk fd;s tkus ij g`n; esa FkksM+k jDr ekStwn FkkA vU; vax Qsy FksA isV [kkyh FkkA 5- e`rd ds 'kjhj esa tks diM+s Fks og [kwu ls yFkiFk Fks mUgsa eSaus lhy can dj lkFk vk;s vkj{kd dks lkSais FksA vfHker%&e`rd ds 'kjhj esa ik;h x;h pksVsa ijh{k.k vof/k ls 24 ?kaVs ds vanj dh FkhA 'kjhj esa ik;h x;h pksVsa tks fd psgjs ,oa xys ,oa flj esa Fkh] bu pksVksa ds lfEefyr izHkko ls mldh e`R;q gq;h FkhA "Amit s/o Sukhlal:
"pksV dzekad 01& ,d dVk gqvk ?kko psgjs ds nkfgus vksj] ftldk vkdkj 7 X2X3 bap FkkA ;g pksV [kM+h pksV rFkk FkksM+k frjNh FkhA bl pksV ds dkj.k] ukd] fupyk tcM+k ,oa Åij dk tcM+k ,oa nkfgus rjQ ds flj dk Hkkx dV x;k Fkk pksV dzekad 02& ,d dVk ?kko tks nkfgus psgjs ij fLFkr FkkA ftldk vkdkj 8 X4X4 bap FkkA ;g pksV vkM+h pksV FkhA ;g pksV cka;s psgjs ls nkfgus Vsaijy ckn rd dVh gq;s FkhA bl pksV ls ukd] ekalisf'k;ka] jDr okfgu;ka rFkk Vsaijy Hkkx dk efLr"d dV x;k FkkA pksV dzekad 03& dVs gq;s ?kko tks la[;k esa pkj Fks cka;s iSjkbVy Hkkx esa fLFkr Fks ftldk vkdkj 3X1@2XgM~Mh rd xgjk FkkfA pksV dzekad 04&psgjs ,oa flj ds lkeus dh vksj dbZ dVs gq;s ?kko Fks ftldk vkdkj 3 X2X3 bap FksA pksV dzekad 05& flj ds vkfdlhiVy Hkkx esa cka;h vksj ,d dVk ?kko fLFkr Fkk ftldk vkdkj 4X2Xvk/kk bap FkkA gM~Mh dV x;h Fkh rFkk bl pksV ls efLr"d dk Hkkx dV x;k FkkA pksV dzekad 06&,d QVk gqvk ?kko cka;s da/ks ij fLFkr FkkA ftldk vkdkj 1 X1X1 bap FkkA pksV dzeakd 07&lksus ij ukS dVs gq;s ?kko FksA tks lrgh FksArFkk peM+h rd xgjs FksA blds vfrfjDr ;gh ?kko ,Cmkeu esa Fkh fLFkr FksA pksV dzekad 08&,d dVk ?kko tksxys esa fLFkr Fkk ftldk vkdkj 2 X1X1@4bap FkkA bl pksV ls 'okal uyh dV x;h FkhA pksV dzekad 09& ,d dVk ?kko tks nkfgus vxzHkqtk esa fLFkr Fkk ftldk vkdkj2 X1@2X1@2 bap FkkA pksV dzekad 10&,d dVk ?kko tks cka;s ?kqVuk ij fLFkr Fkk ftldk vkdkj 1 X1@2X1@2 bap FkkA pksV dzekad 11&,d dVk ?kko tks nka;s da/ks ij fLFkr Fkk ftldk vkdkj 1 X1@2X1@2 bap FkkA 9- mijksDr lHkh pksVs e`R;q ds iwoZ dh Fkh ftl ij jDr ekStwn FkkA 10- isV [kkyh Fkk] g`n; esa FkksM+k lk jDr FkkA QsQMs+ oxSjk Qsy FksA e`rd ds 'kjh esa ik;s x;s diM+s tks [kwu vkywnk Fks lhycan dj lkFk vk;s vkj{kd dks lkSaikA vfHker%&ik;h x;h pksaVs ijh{k.k vof/k ls 24 ?kaVs ds vanj dh FkhA e`R;q dk dkj.k flj] psgjk ,oa xys esa ik;h x;h pksVksa dk lfEefyr izHkko FkkA e`R;q bu pksVksa ls vR;f/kd jDr cg tkus ,oa 'okal vo:) gks tkus ds dkj.k gq;h FkhA
-:- 18 -:-
Injuries were caused by shard edged weapon. They were antemortem in nature. Injuries were sufficient to cause death of deceased persons.
15. From the nature of injuries which were mostly incised wounds, it has been established that injuries could be caused by weapons seized from the appellants. One of the appellant Mithilesh was not armed with any weapon, however, he was present at the time of incident. Evidence against him is that he had also inflicted injury on the deceased by taking out weapon of another co-accused. Ocular evidence co-relates with medical evidence.
Hence, in our opinion, trial Court has rightly held the appellants guilty for offence of murder.
16. Counsel for the appellants has further submitted that prosecution has not established any motive of appellants to commit murder of the deceased.
In our opinion, motive can be developed on the spot also. The ocular testimony of the witnesses could not be discarded only on the ground of absence of motive. It is not necessary that there may be a pre-plan or motive earlier when there is unimpeachable evidence that accused persons had inflicted injuries to the deceased persons which were sufficient to cause death.
17. Trial Court has ordered that both the sentences shall run consecutively. In our opinion, this direction of the trial Court is not just and
-:- 19 -:-
proper. The incident had occurred at the same time. Section 31 of Cr.P.C. prescribes sentence in case conviction of several offence at one trial which reads as under:-
31. Sentences in cases of conviction of several offences at one trial.(1) When a person is convicted at one trial of two or more offences, the Court may, subject to the provisions of section 71 of the Indian Penal Code (45 of 1860 ), sentence him for such offences, to the several punishments prescribed therefor which such Court is competent to inflict; such punishments when consisting of imprisonment to commence the one after the expiration of the other in such order as the Court may direct, unless the Court directs that such punishments shall run concurrently.
(2) In the case of consecutive sentences, it shall not be necessary for the Court by reason only of the aggregate punishment for the several offences being in excess of the punishment which it is competent to inflict on conviction of a single offence, to send the offender for trial before a higher Court:
Provided that-
(a) in no case shall such person be sentenced to imprisonment for longer period than fourteen years;
(b) the aggregate punishment shall not exceed twice the amount of punishment which the Court is competent to inflict for a single offence. (3). For the purpose of appeal by a convicted person, the aggregate of the consecutive sentences passed against him under this section shall be deemed to be a single sentence."
18. Apex Court in the case of Anil Kumar vs. State of Punjab, reported in (2017) 5 SCC 53 has held that whether sentence shall run concurrently or consecutively:-
-:- 20 -:-
"8. In the present case, the appellant was earlier convicted under Section 22, NDPS Act and subsequently conviced under Section 27
(b) (ii) and Section 28 of the Drugs and Cosmetics Act, 1940.
Considering the nature of the offences for which the appellant was convicted and the facts and circumstances of the case, we deem it appropriate to direct that the sentences imposed on the appellant in FIR No.37 and Complaint No.638 shall run concurrently. However, the fine amount and the default sentence or sentences are maintained. If the fine amount is not, the default sentence will run consecutively and not concurrently."
19. In the present case, incident had happened at the same time. Two persons were killed in the same incident. Hence, in our opinion, the sentence awarded by the trial Court shall run concurrently.
20. Consequently, the appeal filed by the appellants is partly allowed.
Their conviction and sentence awarded by the trial Court for commission of offence punishable under Section 302/34 of IPC on two counts is hereby upheld. However, the Judgment of the trial Court that both sentences shall run consecutively is hereby set aside. It is ordered that both sentences shall run concurrently.
(S.K. Gangele) (Nandita Dubey)
Judge Judge
pb
-:- 21 -:-
Cr. A No.159 of 2005
27.03.2018
None for the appellants No1 to 3.
Shri Rama Shanker Yadav, counsel for the appellant No.4. Shri Adtiya Jain, Dy. Govt. Adv. for respondent/ State. Appeal is of the year of 2005 and is on board since last many days. We have appointed Shri Abhishek Tiwari, as amicus-curie to assist the Court.
With the assistance of Advocate Shri Abhishek Tiwari, appeal is heard finally.
Judgment dictated in open Court, signed and dated. Office is directed to send a copy of this order sheet to the office of Legal Service Committee of this Court for information and necessary action. Shri Abhishek Tiwari, counsel for the appellants No.1 to 3 will get remuneration from Legal Aid.
(S.K. Gangele) (Nandita Dubey) Judge Judge pb Digitally signed by PRASHANT BAGJILEWALE Date: 2018.04.05 00:10:49 -07'00' -:- 22 -:-