Madhya Pradesh High Court
Sekadiya And 2 Ors. vs The State Of Madhya Pradesh on 24 September, 2019
Author: Vivek Rusia
Bench: Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH, INDORE
DIVISION BENCH :HON'BLE SHRI JUSTICE VIVEK RUSIA & HON'BLE SHRI
JUSTICE SHAILENDRA SHUKLA
CRIMINAL APPEAL No.1244/2011
SEKADIYA & OTHERS
Vs.
STATE OF M.P.
______________________________________________________
Ms. Sharmila Sharma, learned counsel for the appellants
(legal aid).
Shri Anil Ojha, learned GA for the respondent/State.
______________________________________________________
Whether approved for reporting:
Reserved on 31.08.2019
______________________________________________________
JUDGEMENT
(Delivered on: 24/09/2019) Per: Vivek Rusia, Judge The appellants have filed the present criminal appeal being aggrieved by judgement dated 24.08.2011, passed in S.T. No.204/2010, by Additional Sessions Judge, Alirajpur to the court of 2nd Additional Sessions Judge (Fast Track Court Jobat) whereby the appellants have been convicted under Section 302 read with Section 34 of IPC and sentenced to undergo the life imprisonment with fine of Rs.1,000-1,000/- each in default of payment of fine additional RI 3 months.
2. As per the prosecution story on 08.11.2010 near about 8:30 AM (Exhibit P/1) wife of deceased Vesta, Nanbai (PW1) lodged an FIR in the Police Station- Nanpur. According to the FIR, on 07.11.2010 i.e. in the 2 night of Diwali she was in the house with her husband Vesta. Near about 10-11 PM elder brother of Vesta and his son came to invite Vesta have Chicken in the dinner as they killed a hen and cooked and Vesta went alongwith them. After sometime she heard the screamed voice of Vesta and immediately she rushed to the house of Shekariya. She saw in the light of bulb that wife of Sekariya caught hold the leg of Vesta and Sekariya gave four blow by axe on the head of Vesta. He fell down and thereafter Mukesh dragged Vesta and thrown in the gate of her house. He told that you people gave us less area of the land that is why we have killed Vesta. The complainants told them if the land was less there could have been measured through Patwari but why you killed my husband. She shouted then Sarpanch Bheru Singh, neighbor Raju and Bapu came over there. After registration of the FIR, PW7 - J.C. Patidar rushed to the place of crime, prepared the spot map and send the dead body of Vesta for postmortem. The appellants were arrested and on their disclosure the axe containing blood stains was recovered from the open place. Police has also recovered lungi of Vesta with blood stains on it. After completing the investigation challan was filed in the Court of JMFC and the trial was committed to the Sessions Court. The charges were framed and explained to the accused which they denied and pleaded for trial.
3The prosecution examined Nanbai as PW1, Bapu as PW2, Raju as PW3j, Dungar Singh as PW4, Bheru Singh as PW5, Loom Bai Daughter as PW6, J.C. Patidar as PW7, Dr. Santosh Solanki as PW8. The appellants did not examine any witness in their defence.
3. After appreciating the evidence came on record, learned additional sessions Judge has held that all the three accused conspired and with a common intention invited Vesta in his house and thereafter, killed him, hence committed an offence under Section 302 read with Section 34 of IPC , sentenced them accordingly as stated above.
Being aggrieved by the aforesaid conviction and sentence, appellants have filed the present appeal before this Court.
4. Learned counsel for the appellant submits that appellants have been convicted only on the sole testimony of PW1 Nanbai. The other witnesses have deposed against the appellants only on the basis of the information given by the PW1. She deposed that she shouted then the neighbours and Sarpanch came to the spot whereas the Bapu (PW2) in his deposition has stated that Nanbai came to his house at 4 AM to inform him about the death of her husband. In the night of Diwali there was no light in the house therefore, it was not possible for her to see the incident. According to 4 PW1 there was no previous enmity between them and there was no dispute in respect of partition the land, therefore, there was no motive to commit murder of Vesta. The prosecution has failed to prove the charges beyond reasonable doubt, therefore, the benefit of doubt ought to have been given to the appellants. Learned counsel for the appellant further argued appellant Nos.2 and 3 have falsely been convicted with the aid of Section
34. The ingredients of Section 34 are missing. There was no pre-arranged plan between the appellants. They called the deceased for the dinner and incident said took placed after 30 minutes as per PW-1 which shows that there was no pre-plan and common intention to commit the crime and might have taken due spur of moment. There is no role attributable to the appellant Nos.2 and 3 in the murder of Vesta. Hence, they are liable to be acquitted. Merely they were present in the house but there was no over act on their part in order to convict them under section 302 with the aid of section 34 of IPC.
5. Learned GA for the respondent argued in support of the judgement by submitting that the appellants have called the deceased Vesta in their house for dinner and jointly committed the murder. There was a common intention and active participation by all the three appellants, therefore, each of them is liable for the act in the same manner as if it were done by each them alone.
5The act was done in furtherance of common intention of all, therefore, they all have rightly been convicted with the aid of Section 34. There was no reason to disbelieve the statement of PW1, who is an eye witness. She has specifically deposed in the Court that she saw the appellant No.2 caught hold the leg of her husband and appellant No.1 gave four blows on head by axe and thereafter, appellant No.3 has dragged the dead body and thrown it on the gate of her house. Other witnesses have also supported the case of prosecution. They all have categorically stated that the PW1 has informed about the incident. The axe was recovered on the disclosure of appellant no.1 in which blood stains were found, therefore, no interference is called for in the judgement and appeal is liable to be dismissed.
We have duly considered the rival submissions and perused the record.
6. That PW1 Nan Bai wife of the deceased Vesta lodged an FIR in Police Station on 08.11.2010, near about 8:30. The incident took place in the night of 07.11.2010 at near about 11:00 PM. The distance between Police Station and place of incident is around 10 kilometers and according to the complainant, no transport was available in the night, therefore, FIR could not be lodged in the night. Since, the FIR has been lodged on the next day early morning, therefore, it cannot be said that there was 6 delay in lodging the FIR. As per the FIR PW1 Nanbai has gave an information that in the night of 07.11.2010 at near about 10-11 PM appellant No.1 and his son appellant No.3 came to invite her husband Vesta for having chicken and Vesta went alongwith them and after some time she heard the screaming voice and immediately she rushed to the house of appellants and saw in the light of Bulb that appellant No.2 caught hold the Vesta and Sekadiya gave a blow on the head and due to which he fell down and died. In the statements recorded under Section 161 of the Cr.P.C as well as in the Court there is no omission and contradiction in her deposition , therefore, there is no reason to disbelieve the same. Although in cross- examination, she admitted that there was no dispute in respect of partition of the land between her husband and the appellants. The distance between two houses is 20-25 feet. PW2 Bapu has stated that his house ½ km from the house of Vesta and the PW1 came to his house and informed that Vesta sustained the injury and appellants have killed him. Thereafter, he went to the Police Station alongwith Nan Bai. He has also proved that in the house of Vesta there was an electricity bulb and light was there. Likewise Raju PW3 has also supported the case of prosecution and stated that PW1 has told him about the incident. She has denied that PW1 came to her house at 4:00 AM. He himself went to 7 the house of Vesta after hearing the screamed voice of PW-1. Likewise PW4 Dungar Singh and PW5 Bheru Singh have also supported the seizure of Article and arrest of appellants.
7. PW6 Loom Bai, daughter of deceased Vesta has deposed that in the nigh of Diwali she went to the other village to attained the function and when she came back her mother was crying and told her that the appellants have killed Vesta and she saw the injury on the head of Vesta. She has also stated that before the incident, her father and the appellants had taking terms and they used to visit the house of each other. PW8 Dr. Santosh Solanki has confirmed four different injuries on the head of Vesta and stated that injury Nos.1, 2 and 3 were caused by repeated blow. From the evidence of PW8, it has been established that Vesta died because of the injury sustained by axe and there is no challenge to the said finding and about the cause of death by the appellants , hence, the finding in respect of cause of death are hereby affirmed.
8. So far as the allegation against the appellant No.1 that he gave a blow by axe on the head of Vesta and because of which he died ,as per PW1, she herself saw the appellant No.1 causing the injury and as held above there is no reason to disbelieve the version of PW1. The prosecution has successfully proved and the appellant 8 No.1 has rightly been convicted under Section 302. Learned counsel has failed to point out any perversity in the findings.
9. So far as the conviction of appellant Nos.2 and 3 are concerned, according to the PW1 the appellant No.3 (wife of Sekadiya) caught hold her husband and then appellant No.1 gave a blow on his head with the axe. According to PW1, at 10-11 PM she was in the house with Vesta and then the appellantNo.1 and his son came and told that they have cooked chicken and invited him for dinner. Vesta went alongwith them which shows that there was no previous enmity between them. But after half an hour she heard the screaming voice and immediately rushed to the house. The distance between the two houses is 20-25 feet and it was a period of night and according to her PW1 gave four blows on his head and her husbands was lying on the floor and at that time the Jarh Bai caught hold her husband. She said Sekadiya has killed her husband by causing four injuries on his head and her husband was already lying on the floor, therefore, it is not clear from her evidence that appellant no 3 has played active role in causing the injury to Vesta. After the incident the appellant No.3 has dragged the Vesta and left in front of his house. She asked the appellant No.1 why he killed her husband.
10. As PW1 has admitted in the cross-examination that 9 there was no dispute with respect of land between them and as per the statement of PW6 also there was no enmity between them and they used to visit the house of each other. The appellant Nos.1 and 3 came to the house of Vesta and invited him and immediately Vesta went alongwith them and after half an hour Nan Bai PW1 heard the scream voice, therefore, in view of the above, it cannot be said that they had plan or common intention to commit the offence. The criminal act was not done in furtherance of common intention of all. In case of Section 34 it is well established that the common intention requires the pre-arranged plan before commission of crime. There must have been a prior meeting of mind. Section 34 gets attracted only when it is established that the act was done in furtherance of common intention. It depends upon the circumstances of each case. It is not necessary to adduce the direct evidence of common intention. The intention may be inferred from the surrounding circumstances and the conduct of parties. It is true that the common intention may develop in course of fight but there must be a clear and unimpeachable evidence to justify the inference. PW1 has not stated that all the three accused have killed Vesta. According to her only appellant No.1 has killed her husband by giving four blows by axe. The incident took place after half an hour of calling Vesta in the house. It 10 appears that due to sudden provocation or fight between appellant No.1 and Vesta he gave blows by axe. There is no evidence that they pre planned the murder of Vesta and for that they called him in the house. Even PW1 in her report has not made such type of allegation. Learned Sessions Court has presumed that they called Vesta for the dinner in the house but with the pre- meditation mind to kill but there is no evidence to that effect, therefore, in view of the above, the appellant No.1 has rightly been convicted for causing murder of Vesta hence appellant no. 3 has wrongly been convicted with the aid of Section 34. He is entitle for acquittal. The prosecution has failed to prove the case of common intention against them, hence, appeal is partly allowed. Conviction and sentence of appellant No.1&2 is maintained and appellant Nos.3 is hereby acquitted.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
Judge Judge
Jasleen
Digitally signed by Jasleen
Singh Saluja
Date: 2019.09.26 16:48:06
+05'30'
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HIGH COURT OF MADHYA PRADESH, INDORE
DIVISION BENCH :HON'BLE SHRI JUSTICE VIVEK RUSIA & HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA CRIMINAL APPEAL No.1244/2011 SEKADIYA & OTHERS Vs. STATE OF M.P. ***************************** JUDGEMENT POST FOR: /09/2019 (VIVEK RUSIA) JUDGE 12 Cr.A.No.1244/2011 31.08.2019 Ms. Sharmila Sharma, learned counsel for the appellants (legal aid).
Shri Anil Ojha, learned GA for the
respondent/State.
Heard.
Reserved for judgement.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
Judge Judge
.09.2019
Judgement delivered separately, signed and dated.
(VIVEK RUSIA) (SHAILENDRA SHUKLA)
Judge Judge
13
HIGH COURT OF MADHYA PRADESH, INDORE
DIVISION BENCH :HON'BLE SHRI JUSTICE VIVEK RUSIA & HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA CRIMINAL APPEAL No.1244/2011 SEKADIYA & OTHERS Vs. STATE OF M.P. ______________________________________________________ Ms. Sharmila Sharma, learned counsel for the appellants (legal aid).
Shri Anil Ojha, learned GA for the respondent/State. ______________________________________________________ ORDER For Consideration (VIVEK RUSIA) JUDGE Hon'ble Shri Justice Shailendra Shukla 24/09/2019 (Shailendra Shukla) JUDGE 24/09/2019 POST FOR 24/09/2019 (Vivek Rusia) JUDGE 24/09/2019