Madhya Pradesh High Court
Bantu @ Virendra Singh Yadav & Anr. vs State Of M.P. on 18 April, 2016
1
Cr.A. No.296/2004
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
SB : HON'BLE MR. JUSTICE N.K. GUPTA
Cr.A. No. 296 of 2004
Bantu @ Virendra Singh & Anr.
Vs.
State of M.P.
Whether reportable :- Yes /No
__________________________________________________________
For Appellants : Shri R.K. Sharma, Advocate.
For Respondents : Shri B.K. Sharma, Public Prosecutor
/State
JUDGMENT
(Delivered on this Day of 18th April, 2016) The appellants have preferred the present appeal being aggrieved with the judgment dated 05/05/2004 passed by the 5 th Additional Sessions Judge, Bhind in S.T. No. 226/2002, whereby, each of the appellant has been convicted of offence under section 307 r/w section 34 of IPC and sentenced to suffer five years RI with fine of rupees five thousand each with default stipulation.
2. Facts of the case, in short are that one Rakesh Singh (PW-7) was admitted in District Hospital, Bhind for his treatment and his wife Biranshree (PW-2) had lodged Dehati Nalisi (FIR) at Police Station Dehat, Dist. Bhind that on the night of 24/06/2002 2 Cr.A. No.296/2004 when she was sleeping along with her husband Rakesh Singh on the roof of the house at village Harchandpura, Dist. Bhind, at about 2 Am the appellants Bantu @ Virendra Singh & Hawaldar @ Matru crossed the roof and came on the roof of the complainant. Bantu @ Virendra Singh gave a blow of Dhariya (sickle) on the neck of the victim Rakesh Singh and thereafter Biranshree held the Bantu @ Virendra Singh and Hawaldar @ Matru assaulted the victim Rakesh Singh with Dhariya (sickle) causing several injuries to the victim Rakesh Singh. On her shouting, witness Dilip (PW-
14), Abhilakh Singh (PW-8), etc. came on the spot and therefore, the appellants ran away. When Birenshree was going to the hospital along with her unconscious husband then one Gurudayal (PW-1) met in the way with information that the culprits have assaulted him also. However, he could not identify the culprits. After registration of Dehati Nalisi, a formal requisition for medico legal examination of the victim Rakesh Singh was issued. The victim Rakesh Singh was examined by Dr. U.P.S Kushwah (PW-6) who gave the report Ex. P-6. He found nine incised wounds to the victim at left forearm, head, left side of the head, back side of the head, left ear, left neck, left shoulder, right arm and right side of the back. On the injury of back air bubbles were oozing out. According to Dr. U.P.S Kushwah cumulative effect of the injuries 3 Cr.A. No.296/2004 was fatal in nature. The victim Rakesh Singh was admitted in the male surgical ward and his treatment was started. His dying declaration was also recorded by Dr. U.P.S Kushwah as Ex. D-3. Dr. U.P.S Kushwah also examined Gurudayal and gave his report Ex. P-7, where only two simple injuries were found to him on the head and left arm. After due investigation, charge sheet was filed before the Chief Judicial Magistrate, Bhind who committed the case to the Court of Sessions and ultimately it was transferred to the 5 th Additional Sessions Judge, Bhind.
3. The appellants abjured their guilt. They took the plea that there were so many cases pending between the parties and to create pressure of compromise, a false case has been lodged against the appellants. In defence Ramdas Yadav (DW-1) & Ravindra Singh (DW-2) were examined to show that some unknown persons have caused such injuries to the victim Rakesh Singh.
4. The 5th Additional Sessions Judge, Bhind after considering the evidence adduced by the parties convicted and sentenced the appellants as mentioned above.
5. In the present case, Birenshree (PW-2) and Rakesh Singh (PW-7) were star witnesses, whereas, other eye-witnesses were not much important. Gurudayal (PW-1) has stated that on 4 Cr.A. No.296/2004 hearing the noise, he tried to move towards the house of Rakesh Singh, someone assaulted him and, therefore, he also went to the hospital along with Rakesh Singh. In Dehati Nalisi Ex.P-2, same version was told by Birenshree (PW-2) that Gurudayal (PW-1) could not identify the culprits who assaulted him and, therefore, if Gurudayal (PW-1) did not state about his subsequent version as recorded under section 161 of Cr.P.C. then it makes no difference. Other witnesses namely Ahbaran Singh (PW-3) & Abhilakh Singh (PW-8) have stated that on hearing hue and cry of Birenshree, they rushed to the house of Rakesh Singh and they found that Rakesh Singh was lying on the ground with so many injuries. Ahbaran Singh has stated that he saw the accused Bantu @ Virendra Singh & Hawaldar @ Matru running towards the lane jumping from the roof, whereas, Abhilakh Singh could see only Bantu @ Virendra Singh. Abhilakh Singh has accepted in para 7 of his statement that he reached 10 minutes after the incident and at that time crowd was gathered in the house of Rakesh Singh and when the victim Rakesh Singh was asked about the culprits, he told the name of Bantu @ Virendra Singh. Such statement of Abhilakh Singh clearly indicates that he could not see anybody running from the spot and he was told by Birenshree that she saw the accused Bantu @ Virendra Singh at the spot. Similarly, 5 Cr.A. No.296/2004 Ahbaran Singh who claimed to see the appellants at the time of incident has accepted in para 8 of his cross examination that when he reached to the spot 50-100 villagers were already present and Birenshree was holding the appellant Bantu @ Virendra Singh. If Birenshree held Bantu @ Virendra Singh for a longer period then all the witnesses who later reached must have seen him as well. When this witness Ahbaran Singh reached to the spot, 50-100 villagers were also present at the spot then it clearly indicates that this witness reached to the spot with delay of 5-10 minutes and there was no possibility that he could see the culprits. He has given his evidence on the information given by Birenshree.
6. Under these circumstances, the evidence of Birenshree and Rakesh Singh is material against the appellant Bantu @ Virendra Singh. The victim Rakesh Singh was taken to District Hospital, Bhind and when information Ex. P-5 was sent to SHO, Kotwali, Dist. Bhind then on arrival of ASI Amar Singh Sengar (PW-
15), Dehati Nalisi Ex. P-2 was lodged by Birenshree and that was lodged after two hours of the incident. In this connection, learned counsel for the appellants has invited attention of this Court to the document Ex. P-5 in which Doctor has mentioned that Rakesh Singh was brought to the hospital, he was assaulted by someone when he was sleeping on the roof. Thereafter by different ink, a 6 Cr.A. No.296/2004 note was appended later on that the complainant Birenshree told to the Doctor that her husband was assaulted by Bantu @ Virendra Singh & Hawaldar @ Matru and one more unknown person was there along with the appellants. However, Dr. U.P.S. Kushwah did not mention that he again appended that latter on note. In this connection the document Ex. D-3 is important which was shown to Dr. U.P.S. Kushwah and he accepted that such dying declaration was given at about 3.15 Am by Rakesh Singh in which it was clearly mentioned that he was sleeping on the roof all alone and he was assaulted by Bantu @ Virendra Singh and one unknown person. When document Ex. D-3 was shown to the victim Rakesh Singh (PW-7) then he explained that Dr. Kushwah might have not heard the name of Hawaldar @ Matru. However, it would be apparent that at that time Birenshree was also present with the victim Rakesh Singh and she would have corrected the statement recorded by the Doctor.
7. On the basis of documents Ex. P- 5 and Ex. D-3, it appears that initially the name of assailants was not informed to the Doctor at 2.10 Am. Thereafter at about 3.15 Am, the victim Rakesh Singh informed about Bantu @ Virendra Singh & one unknown person. Thereafter, Dehati Nalisi was lodged by Birenshree implicating both the appellants. No remaining eye- 7 Cr.A. No.296/2004 witnesses could see any culprits at the spot. Hence, looking to the later on note on the document Ex. P-5, it appears that Rakesh Singh and Birenshree developed the story against Hawaldar @ Matru because he was father of Bantu @ Virendra Singh and it was easy for them to implicate these persons due to enmity. It is admitted by Birenshree as well as Rakesh Singh that there was enmity between Hawaldar @ Matru and father and brother of Rakesh Singh. Enmity is a double edged weapon and enemy can falsely implicate his enemy due to enmity or he may be assaulted by enemy and therefore, in such a case, the evidence should be examined cautiously and minutely.
8. Under these circumstances, looking to the document Ex. D-3 dying declaration recorded by Dr. U.P.S Kushwah at about 3.15 Am, it appears that the later on note on document Ex. P-5 and the allegations made in dehati nalisi Ex. P-2 were after thought. If victim Rakesh Singh could not identify the second culprit, therefore, by developing story name of Hawaldar @ Matru was falsely implicated. The trial court has committed error in convicting the appellant Hawaldar @ Matru for aforesaid offence. It was not proved beyond doubt that the appellant Hawaldar @ Matru had participated in the crime.
9. It is true that according to dying declaration Ex. D-3, 8 Cr.A. No.296/2004 the victim Rakesh Singh was sleeping on the roof all alone and Birenshree came after the incident and therefore, the claim of Birenshree that she held the appellant Bantu @ Virendra Singh does not appear to be correct. If the appellant Bantu @ Virendra Singh gave a single blow on the neck of the victim Rakesh Singh and Birenshree would have held the appellant Bantu @ Virendra Singh then her overt act appears to be unnatural. When the appellant Bantu @ Virendra Singh started running and when he was also identified then it was for the Birenshree to intervene in between her husband Rakesh Singh and another culprit who continued to assault the victim Rakesh Singh, but she did not give any explanation as to why she was interested in holding the appellant Bantu @ Virendra Singh and why she did not try to save her husband from the other culprit. According to this witness, first blow was given by Bantu @ Virendra Singh on the neck of the victim Rakesh Singh and thereafter Bantu @ Virendra Singh started running from the spot. Conduct of Birenshree clearly indicates that dying declaration given by victim Rakesh Singh before Dr. U.P.S Kushwah is correct that victim Rakesh Singh was sleeping on the roof alone and on hearing his shouting Birenshree went to the roof and she tried to hold the appellant Bantu @ Virendra Singh where as an other culprit had already completed assaults upon the victim 9 Cr.A. No.296/2004 Rakesh Singh and therefore, Birenshree had no opportunity to intervene between the victim Rakesh Singh and an other culprit and therefore, claim of Birenshree that she was an eye-witness is totally baseless. She was not an eye-witness. She reached to the spot after the incident. Out of nine injuries caused to the victim Rakesh Singh almost all the injuries were already caused when Birenshree reached on the roof and, therefore, her testimony cannot be believed even against the appellant Bantu @ Virendra Singh.
10 Birenshree and her husband Rakesh Singh have claimed that they saw the culprits in moon light, but about the moon light they did not tell in their case dairy statement or Dehati Nalisi Ex. P-2. However, the dying declaration Ex. D-3 was the first narration of Rakesh Singh in which he told about the incident to Dr. U.P.S. Kushwah though that dying declaration was recorded after one hour and 15 minutes of the incident, but that can be accepted against the appellant Bantu @ Virendra Singh and hence, the testimony of Rakesh Singh may be accepted that he saw the appellant Bantu @ Virendra Singh, who gave a single blow to the victim Rakesh Singh. The victim Rakesh Singh was sleeping on the roof and the appellant Bantu @ Virendra Singh went on the roof and assaulted, therefore, the appellant Bantu @ Virendra Singh did 10 Cr.A. No.296/2004 not receive any sudden or grave provocation or right of private defence. When he accompanied by another accused and gave the first blow to Rakesh Singh then he should have the knowledge of the result of the assault done by the Dhariya (sickle), hence, according to the provisions of section 39 of IPC voluntarilyness of the appellant Bantu @ Virendra Singh is established and it is proved beyond doubt that he had voluntarily caused hurt to the victim Rakesh with a sharp cutting weapon and therefore, atleast he was liable for offence under section 324 of IPC.
11. Learned counsel for the appellants has submitted that Dr. U.P.S Kushwah opined that all the injuries were fatal in nature, but such joint opinion can be separated. The injuries caused on the head of the victim Rakesh Singh could be fatal and the injuries caused on the back of the Rakesh Singh from where air bubbles were oozing out which shows that portion of lung was damaged due to that injury could also be fatal, but the injury No. 6 incised wound found on the neck was not clearly mentioned to be fatal in nature by Dr. Kushwah. However, if various wounds of the victim Rakesh Singh are considered then injury No. 2 which was on the head by which outer layer of the bone and skull was found cut. Similarly, injury which was found on back of ear causing cut the ear in two pieces. One injury was on back and air bubbles were 11 Cr.A. No.296/2004 coming out and therefore, such injury must have caused damage to the concerned lung and therefore, certainly it was fatal in nature. The injury No. 5 which started from the left ear to back of the neck have caused disfiguration of the ear as well as bone below the wound was showing a creeper sound and, therefore bone was broken and hence, that would also be grave injury.
12. It is true that Dr. U.P.S. Kushwah did not give any separate opinion for injury No. 6 caused by the appellant Bantu @ Virendra Singh which was incised wound of size 14x2.5x1.5 cm below the left clavicle on which bone had a cut mark. Though such injury was not fatal, but the appellant Bantu @ Virendra Singh went with other culprits and caused as many as eight injuries to the victim Rakesh Singh out of them three injuries were fatal in nature. The other culprit gave 7-8 injuries to the victim Rakesh Singh and he repeatedly assaulted on the vital part of body of the victim Rakesh Singh and therefore, he intended to kill the victim Rakesh Singh and therefore, that other culprit had committed crime under section 307 of IPC. Though the appellant Bantu @ Virendra Singh had assaulted the victim Rakesh Singh once, but he took other culprit with him and participated in the crime, where, he knew that his companion having Dhariya could assault with Dhariya (sickle) and he could cause fatal injury. When the co- 12 Cr.A. No.296/2004 accused assaulted 6-7 times to the victim Rakesh and the appellant Bantu @ Virendra Singh was present with him then his common intention could be presumed with other culprit and the trial court has rightly convicted the appellant Bantu @ Virendra Singh for the aforesaid offence.
13. So far as sentence is concerned, learned counsel for the appellants has submitted that the appellant Bantu @ Virendra Singh has faced trial and appeal for more than 14 years. He remained in custody for 25 days during trial and 7 months during appeal.
14. The victim Rakesh Singh has died during the pendency of the appeal and his widow Birenshree entered into compromise and she had filed compromise applications I.A. Nos. 1067/2015 & 1068/2015. On 23/02/2016 it was directed that the aforesaid applications shall be considered at the time of final judgment. The offence under section 307 of IPC is not compoundable and looking to the nature of case that the appellant Bantu @ Virendra Singh along with other culprit went to the roof of the victim Rakesh Singh and assaulted him brutally then in such a case compromise should not be accepted under section 482 of Cr.P.C.
15. There are certain cases in which observations were made by Hon'ble Apex Court relating to power of this court under 13 Cr.A. No.296/2004 section 482 of Cr.P.C. to be exercised for non-compoundable offence. The judgment passed by the Apex Court in the case of "Narinder Singh & Ors. vs. State of Punjab and Anr." {(2014) 6 SCC 466}, it is held that once a conviction is recorded by the trial court then the High Court cannot exercise the power under section 482 of Cr.P.C. to accept the compromise application for non-compoundable offence at the appellate stage and, therefore, the compromise application filed by Birenshree, a legal representative of the victim Rakesh Singh cannot be accepted. Both the applications are dismissed with observation that the effect of compromise application shall be considered at the time of passing of the sentence.
16. It is apparent that the appellant Bantu @ Virendra Singh was a first offender. He was not shown to be previously convicted and he was a youth of 25 years of age at the time of incident, who has faced the trial and appeal for 14 years. He remained in custody for approximately eight months and therefore, in the light of judgment passed by the Apex Court in the case of "Ishwar Singh vs. State of M.P." {AIR 2009 SC 675}, "Gulab Das & Ors. vs. State of M.P."{AIR 2012 SC 888} & "Pashora Singh & Anr. vs. State of Punjab" {1993 Cr.L.J. 1053}, it would be appropriate not to send the appellant Bantu 14 Cr.A. No.296/2004 @ Virendra Singh to jail again. His sentence may be reduced for the period for which he remained in custody by enhancement of fine amount.
17. On the basis of aforesaid discussion, the appeal filed by the appellant No. 2- Hawaldar @ Matru is hereby allowed. His conviction and sentence passed by the trial court are hereby set aside. He is acquitted from the charge of section 307 or 307 r/w section 34 of IPC. The appeal filed by the appellant No. 1- Bantu @ Virendra Singh is hereby partly allowed. His conviction under section 307 r/w section 34 of IPC is maintained, but his jail sentence is reduced to the period for which he remained in custody by enhancement of fine from the sum of Rs. 5,000/- to the sum of Rs. 15,000/-. He is directed to deposit the remaining fine amount before the trial court within two months from today, failing which, he shall undergo six months RI. Since the victim Rakesh Singh has expired during pendency of this appeal and his wife entered into a compromise with the appellant-Bantu @ Virendra Singh and, therefore, she must have received some compensation, hence, there is no need to pass any separate order for grant of compensation out of the fine amount.
18. Both the appellants are on bail and, therefore, it is directed that the bail bond of appellant No. 2-Hawaldar @ Matru 15 Cr.A. No.296/2004 shall stand discharged because his presence is no more required before this Court, but the bail bonds of the appellant No. 1- Bantu @ Virendra Singh shall be discharged when he deposits the fine amount before the trial court within two months from today.
19. Copy of this judgment be sent to the court below along with its record for information and compliance that if fine is not deposited within the stipulated period then the same shall be recovered as per the provisions of section 68 of IPC.
(N.K. GUPTA) JUDGE (18/04/2016) Durgekar*