Madhya Pradesh High Court
Babula & Ors. vs The State Of M.P. on 25 August, 2022
Author: Sujoy Paul
Bench: Sujoy Paul, Prakash Chandra Gupta
1
Criminal Appeal No. 930/1995.
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
CRIMINAL APPEAL NO. 930 OF 1995.
BETWEEN :-
1. BABULA AGED ABOUT 40 YEARS
S/O CHALKU BAIGA, AGRICULTURAL
LABOUR, R/O VILLAGE DHURWAR,
POLICE STATION SHAHDOL, DISTRICT
SHAHDOL, (MADHYA PRADESH)
2. JAMUNA W/O BABHULA, AGED
ABOUT 19 YEARS, R/O DHURWAR
SHAHDOL DISTT SHAHDOL (MADHYA
PRADESH)
3. DEOLAL S/O BHAGOLWA, AGED
ABOUT 20 YEARS, DHURWAR
SHAHDOL DISTT SHAHDOL (MADHYA
PRADESH)
4. PIYARWA S/O BLAGOLWA, AGED
ABOUT 26 YEARS, DHURWAR SHAHDOL
DISTT. SHAHDOL (MADHYA PRADESH).
5. AITU S/O CHUKNA, AGED ABOUT 50
YEARS, DHURWAR SHAHDOL DISTT
SHAHDOL (MADHYA PRADESH).
....APPELLANTS
(SHRI RAGHUWANSH PRASAD MISHRA ADVOCATE FOR
APPELLANTS NO. 1, 2 & 4)
2
Criminal Appeal No. 930/1995.
AND
STATE OF MADHYA
PRADESH, THROUGH POLICE
STATION SHAHDOL, M.P.
....RESPONDENT
(BY SHRI S.K. KASHYAP GOVERNMENT ADVOCATE)
--------------------------------------------------------------------------------------------
Reserved on : 10/08/2022
Delivered on : 25/08/2022
This criminal appeal coming on for hearing this day, JUSTICE
PRAKASH CHANDRA GUPTA, passed the following :
JUDGMENT
1. The instant appeal has been filed by the appellants/ accused persons being aggrieved by the judgment dated 25/05/1995 passed by Ist Additional Sessions Judge, Shahdol in S.T. no. 121/1994, whereby the appellant Babula has been convicted for the offence punishable under section (hereinafter referred to as u/s) 148 and 302 r/w 149 of the Indian Penal Code, 1860 (hereinafter referred to as IPC); and the remaining appellants have been been convicted for the offence under section 147 and 302 r/w 149 of the Indian Penal Code, 1860. They have been sentenced to undergo rigorous imprisonment for 1 year; and life imprisonment and fine of Rs.100/- respectively, with default stipulation of additional simple imprisonment of 1 month.
2. The facts of the case, in short is that, deceased Shyamlal, Babbu Baiga (PW/4) and Gorelal are real brothers and resident of village Dhurwar, 3 Criminal Appeal No. 930/1995.
P/S District- Shahdol (M.P.). About 4 years prior to the incident, the deceased was convicted and sentenced to undergo life imprisonment for the murder of co-accused Gojwa's son Baiya Baiga and he was on bail after the incident deceased Shyamlal used to live at in-laws house situated at village Barhai with his wife and children. A day before the incident, deceased along with his wife and children had come to his parental house at village Dhurwar. Brother-in-law Sukkhu and sister Shyambai of deceased had also come to village Dhurwar. The date of incident is 28/03/1994 at around 10 AM-11 AM, the next day of Holi festival, the deceased had gone to the shop of Baijnath (PW/2) to buy bidi, at that time, Birulal (PW/ 3) was walking near the shop of Baijnath (PW/ 2), co-accused Gojwa Baiga and Shahaiya Baiga said 'let us go and kill Shyamlal, he has spread his terror so much', just after a while all the 17 accused persons came from their house with lathis and axes and chased the deceased. Deceased ran and entered in the house of Daua Baiga (DW/1). The accused persons, took out the deceased from Daua Baiga's home and chased him to the courtyard (badi) and beat him with lathis and axes. Seeing the incident, nephew of the deceased, Birulal (PW/3) went running and told his uncle Babbu Baiga (PW/4), cousin Raju Baiga (PW/2) and other family members about the incident. thereafter Raju Baiga (PW/2), Babbu Baiga (PW/4), Chamman Bai (PW/5), Sukkhu and some other members alongwith Biru Baiga (PW/3) came on the spot and saw that accused persons were giving blows to deceased by means of lathis, axes, stones and were slamming him on the ground. Gorelal heard and came to the spot. Then accused persons fled away. Deceased died on the spot because of the injuries inflicted on him. On the same date at 04:10 PM, ASI Ram Niwas Tiwari (PW/ 6) had lodged an FIR (Ex.P/4) against accused persons on intimation given by Raju Baiga (PW/2). He also wrote Marg Intimation (Ex.P/6) at 04:15 PM.
4Criminal Appeal No. 930/1995.
3. During investigation on 28/03/1994, SI K.G. Shukla (PW/ 8) inspected the spot and prepared spot map (Ex.P/5). He had given notice to the witnesses and prepared notice (Ex.P/8) and Lash Panchnama (Ex.P/9) of deceased. He sent the body of deceased for post-mortem alongwith application (Ex.P/2) through constable Ram Kripal Dubey. On 29/03/1994 at 09:30 AM, Dr. Pradeep Khare (PW/1) conducted post-mortem of deceased and gave report (Ex.P/1). At the time of post-mortem, Dr. Pradeep Khare (PW/1) preserved and sealed an underwear, a full pant, shirt and banyan of deceased and handed it over to constable Ram Kripal Dubey for chemical examination. On 07/04/1994 SI K.G. Shukla (PW/8) seized the sealed packets of clothes of deceased from constable Ram Kripal Dubey vide seizure memo (Ex.P/7).
4. On 28/03/1994 at 05:15 PM seized four pieces of blood stained stones (Article- J,K,L and M) from the spot vide seizure memo (Ex.P/11) and at 05:30 PM, he seized blood stained soil, plain soil and blood stained twig of Ipomoea Carnea (Besharam plant) from the spot vide seizure memo (Ex.P/10). On 30/03/1994, he took custody of accused persons Sahaiya, Jamuna, Babula, Devlal, Jairam, Chulai, Gojwa, Dadra and Babu Baiga and prepared memorandum (Ex.P/12 to P/20) as per their statement. On the same day he seized an axe (Article- A) and 8 lathis (Article B to I) from accused persons Sahaiya, Chulai, Jamuna, Gojwa, Devlal, Jairam, Babula, Dadra and Babu Baiga vide seizure memo (Ex.P/ 21-P/29) respectively. On the same day SI K.G. Shukla arrested accused persons- Sahaiya, Gojwa, Babula, Jamuna, Jairam, Dhanua, Chulai, Aitu, Chalku, Dadra, Babu, Dahru, Devlal and Piyarwa vide arrest memo (Ex.P/30).
5. SI K.G. Shukla (PW/ 8) sent the seized articles with letter (Ex.P/31) Forensic Science Laboratory (hereinafter referred to as FSL) for chemical examination. After examination, chemical examination report (Ex.P/32) was 5 Criminal Appeal No. 930/1995.
received. Statements of witnesses were recorded u/s 161 of Code of Criminal Procedure (hereinafter as CrPC). After completion of investigation the charge-sheet was filed.
6. The trial court framed the charges u/s 148, 302 r/w 149 of IPC. The accused persons abjured their guilt and sought trial.
7. The prosecution has examined Dr. Pradeep Khare (PW/1) who conducted post-mortem, Raju Baiga (PW/2), Birulal (PW/3), Babbu (PW/4) and Chamman Bai (PW/5) who were alleged to be eye-witnesses, ASI Ramniwas Tiwari (PW/6) who is writer of the FIR and Marg Intimation, Constable Jeevanlal (PW/7), who is the seizure witness and SI K.G. Shukla, who investigated the case. After completion of prosecution evidence accused persons were examined u/s 313 of CrPC. Accused persons had taken defence that they have not committed the offence and they are falsely implicated due to enmity. Accused persons have examined Daua (DW/1), Baijnath Gupta (DW/2), Gullu (DW/3), Dhanu (DW/4), Chukki (DW/5) and Sudesha Yadav (DW/6) in their defence.
8. The learned trial court after hearing both the parties convicted and sentenced the appellants for the offences as mentioned above.
9. It is necessary to mention here that accused Sahaiya has died during the trial of case. Appellant/ accused persons Jairam, Piyarwa, Dhanua, Chulai, Haitu, and Ruruwa have also died during the pendency of the appeal and co-accused Dadara, Gojwa, Chalku, Bihari, Dahru and Babu are acquitted by the trial court. Therefore, the instant appeal is pending only for appellant no. 1 Babua, appellant no. 2 Jamuna and appellant no. 4 Devlal.
10. Counsel for the appellants submitted that the impugned judgment is contrary to facts, law and circumstances of the case. The trial court committed an error in holding that there was an unlawful assembly and the 6 Criminal Appeal No. 930/1995.
common object of the unlawful assembly was to cause death of the deceased. There was no material on record to infer that members of the assembly knew that death may be caused in pursuance of common object. All the eye-witnesses are close relatives of the deceased and there are material omissions and contradictions in their statements. The trial court has committed an error in believing the alleged eye-witnesses and disbelieving the defence witnesses. On the basis of the evidence available on the record, only offence u/s 325 of IPC or 304 Part-II of IPC is made out. Learned trial court has committed an error to convict the appellants in the alleged offences, therefore, the impugned judgment deserves to be set aside. Counsel for the appellant relied upon the various judgments of Hon'ble Apex Court i.e. Veeran and ors. V State of M.P. [AIR 2011 SC 1655]; Gurdial Singh and ors. V State of Punjab [AIR 2011 SC 840]; Phanibhushan Das and anr. V State of West Bengal [AIR 1995 SC 70]; Rustam Ali and ors. V State of Assam [1995 Cri.L.J.2489].
11. Learned Government Advocate for the respondent/ state supported the impugned judgment and submitted that impugned judgment of conviction and sentence is in accordance with the law.
12. Heard counsel for the rival parties and perused the records.
13. For the disposal of this case, first of all it is pertinent to consider whether the death of deceased was homicidal in nature or not.
14. In this respect Raju Baiga (PW/2), Birulal (PW/3), Babbu (PW/4) and Chamman Bai (PW/5) stated that the deceased had died due to injuries on his body. SI K.G. Shukla (PW/8) stated that during investigation he saw the body of deceased. There were so many injuries on the body, he issued notice (Ex.P/8) to the witnesses and prepared Lash Panchnama (Ex.P/ 9), thereafter, he sent the body of deceased for post-mortem.
7Criminal Appeal No. 930/1995.
15. Dr. Pradeep Khare (PW/1) deposed that on 29/03/1994 at 09:30 AM, conducted post-mortem of the deceased and on external examination of body, he found that rigor mortis was present on all over body, eyes were semi-opened, pupils were dilated and fixed, found following injuries on the body of deceased:-
(1) Lacerated wound 2 x 1 cm x bone deep on lateral aspect of left ankle.
(2) Fracture of both bones tibia and fibula soft, lower 1/3 rd part of left leg.
(3) Irregular abrasion of lateral aspect of left foot, size 2x1 inch.
(4) Incised wound semi-lunar in shape over medial aspect of left foot with sand and mud filled, size 7 x 2 x 3 cm. (5) Incised wound over medial aspect of right foot, size 5 x 2.5 x 4 cm (mud and grass filled).
(6) Incised wound over right ankle medial aspect and extending over foot, size 12x7x7 cm underlying muscles, blood vessels and bone are completely cut. (7) Fracture of both bones tibia fibula soft upper 1/3rd with extending infirmity present in right leg.
(8) Spindle shaped penetrating wound, size 1.5 x 1.5 x 3 cm over front of right leg upper 1/3rd part.
(9) Spindle shaped penetrating of 1.5 x 1.5 x 3 cm over lateral aspect of lower 1/3rd part of right leg.
(10) Spindle shaped penetrating wound size 1.5 x 1.5 x 3 cm over right upper arm posterior aspect 4 inches proximal to elbow.
(11) Incised wound over scalp, left parietal region, size 3.5 x 1 cm x scalp deep.
(12) Left ear pinna was mud stained but there was no injury. (13) Contusion blue-black coloured size 5 x 2.5 cm over left maler region on face.
8Criminal Appeal No. 930/1995.
(14) Contusion, size 5x2 cm over left zygomatic region on face.
(15) Contusion, size 4 x 2 cm over left side of neck, brown-
black in colour.
(16) Contusion, size 5 x 1 cm over left scapular region, brown-
black in colour.
(17) Contusion over chest horizontally placed over 3rd and 4th ribs.
16. Dr. Pradeep Khare (PW/1) further deposed that on internal examination of body, he found that membrane of brain was pale but congested in left parietal lobe underneath injury no 11. Thoracic wall and ribs were normal except sub-cut haematoma seen underneath injury no 17. lungs, throat and trachea were congested. All chambers of heart were empty. Many blood vessels at wound sites were cut. Undigested food stuff was present in stomach. Both the intestines were congested and faecal matter were present. Other organs were pale and healthy.
17. Dr. Pradeep Khare (PW/ 1) opined that injury no. 1, 2, 7, 13 to 17 is caused by hard and blunt object; injury no 3 is caused by friction of rough surface; injury no 4, 5, 6 and 11 is caused by sharp edged weapon and; injury no 8, 9 and 10 were caused by sharp edged and pointed weapon. Death of deceased occurred due to extensive multiple injuries over the body leading to shock from haemorrhage. All those injuries are ante-mortem and cumulative effect of those injuries have led to a condition of shock from extensive haemorrhage which has led to death of deceased. The injuries were sufficient in ordinary course of nature to cause death of deceased. Death of deceased occurred within 24 hours of the post-mortem and death of deceased is homicidal in nature.
18. Accused persons have not disputed the injuries present over the body of deceased in cross-examination of aforementioned witnesses and those 9 Criminal Appeal No. 930/1995.
injuries caused the death of deceased, therefore, their statement is reliable, hence, the learned trial court has rightly held that the death of deceased is homicidal in nature.
19. Next question arises whether appellants/ accused persons had assembled unlawfully and caused riot and being members of unlawful assembly with common object to inflict injuries on the body of deceased to cause his death.
20. As per prosecution case Raju Baiga (PW/ ), Birulal (PW/3), Babbu (PW/4) and Chamman Bai (PW/5) are the eye-witnesses of the incident. Raju Baiga (PW/2) and Birulal (PW/3) are nephews of deceased Babbu (PW/4) is real brother of the deceased and Chamman Bai (PW/5) is the widow of deceased. The trial court has relied on the statement of aforementioned eye-witnesses.
21. Birulal (PW/3) is a child witness, aged about 7-8 years, stated that he knows the accused persons because they are residents of his village. On the date of incident at about 12:00 AM, deceased went to Baijnath's (DW/2) shop to buy bidi alongwith Birulal (PW/3), he came out of the shop, at that time accused persons surrounded the deceased person, at that time I ran to my home, shouted and told my parents that accused persons are beating the deceased by means of axes and lathis at the spot. In paragraph 3 of cross- examination, he stated that number of accused persons was 17 and distance of place of incident (Babbunna ki badi) is approximately 60 yards from the Baijnath's (DW/2) shop. In paragraph 5 of cross-examination he stated that accused Sahaiya had an axe, other accused persons have lathis, further he said that when the accused persons had surrounded the deceased in front of Baijnath's (DW/2) shop, at that time he went to home to tell about the same to parents, and after telling the father about the incident, when father and other family members came to the spot, accused persons had gone.
10Criminal Appeal No. 930/1995.
22. Raju Baiga (PW/2) has stated that as deceased got late to come back after buying bidi, he went to check to the shop of Baijnath (DW/2), where he saw that accused Babula by means of axe (Farsa), Jairam by means of piece of stones and other accused persons Chulai, Dhanua, Aitu, Hiyarwa, Piyarwa, Devlal, Rurua, Daua by means of lathis, were beating deceased. The number of accused persons were 17. He shouted, thereafter all the family members came running, further he said that, he lodged report (Ex.P/
4) at P/S Shahdol.
23. Babbu (PW/ 4) deposed that on the date of incident, at about 12:00 AM, he was at his home. At that time Birulal (PW/3) came and told that accused Babula is beating deceased with axe, thereafter he went on the spot and saw that 17 accused persons were attacking deceased, Babula and Sahaiya with axe (Farsa), Chulai with stone and other accused persons with lathi.
24. Chamman Bai (PW/5) stated that on the date of incident at about 12:00 AM, deceased took Rs.50/- from her to buy colours and bidi, thereafter she heard cry of Raju Baiga (PW/2) that uncle is being beaten, she alongwith other family members ran towards place of incident and saw that 17 accused persons were beating deceased. Deceased was lying on the ground. She knows the name of Sahaiya, Babula, Chulai, Ramji, Devlal, Gojwa, Bihari, Dadra, Jamuna, Chalku, Aitu, Dhanua, Hirai, Piyarwa out of 17 assailants. She further said that Chulai and Jairam with stone, Babula, Ramji and Dadra with lathi, Jamuna and Sahaiya with axe, other accused persons were beating the deceased with lathi and stone.
25. ASI Ramniwas Tiwari (PW/ 6) stated that on 28/03/1994 at 04:10 PM, he lodged an FIR (Ex.P/4) as per oral intimation given by Raju Baiga (PW/2). He further said that he also lodged Marg Intimation (Ex.P/ 6) on the basis of aforementioned information.
11Criminal Appeal No. 930/1995.
26. On perusal of FIR (Ex.P/ 4), it appears that incident took place at about 01:30 PM on 28/03/1994 and FIR was lodged at 4:10 PM on the same day against the accused persons Sahaiya Baiga, Gojwa Baiga, Babula Baiga, Jamuna Baiga, Jairam Baiga, Dhanua Baiga, Chulai Baiga, Aitu Baiga, Chalku, Bihari, Dadra, Babu, Dahru, Rohua, Devlal, Piyarwa and Hirua alias Piyarwa Baiga, total 17 accused persons. Therefore, it is apparent that the FIR was promptly lodged within 2.40 hrs. at P/S Shahdol which is 10 Km. away from the place of incident on the oral intimation of Raju Baiga (PW/2).
27. Though Raju Baiga (PW/2) has stated that as deceased got late to come back after buying bidi, he went to check the shop of Baijnath (DW/2), he saw the incident but in FIR (Ex.P/4) (part B to B), it is mentioned that he was at home and after receiving intimation from Birulal (PW/3) he went to the spot. In paragraph 6 of cross-examination, Birulal (PW/3) stated that when he came home to tell about the incident, at that time, Raju Baiga (PW/2) was at home. Therefore, it appears that at the instance of Birulal (PW/3), Raju Baiga (PW/2) went to the spot and saw the incident.
28. Raju Baiga (PW/2) stated that place of incident is approximately 500 metres away from his home while investigating officer K.G. Shukla (PW/8) stated that place of incident is approximately 150 metres from the home of Raju Baiga (PW/2) and Babbu Baiga (PW/ 4). Aforementioned statement of KG Shukla (PW/8) also finds support from spot map (Ex.P/5) where the distance of the place of incident is mentioned 150 metres from the home of deceased. Therefore, aforementioned statement of KG Shukla (PW/ 8) is reliable.
29. In paragraph 8 of cross-examination Raju Baiga (PW/2) stated that accused Jamuna has assaulted deceased with spear, while there is omission in FIR (Ex.P/4) and statement (Ex.D/1) of this witness. There is also an 12 Criminal Appeal No. 930/1995.
omission in (Ex.P/4) and (Ex.D/1) that accused Jairam inflicted injuries to deceased by means of stone. In paragraph 2 of cross-examination Babbu (PW/4) stated that accused Babula inflicted almost 10 blows of axe on the body ot the deceased but there is omission of aforesaid fact in his statement (Ex.D/ 2) u/s 161 of CrPC. In paragraph 3 of cross-examination, this witness has stated that Birulal (PW/3) and Raju Baiga (PW/2) went to shop with deceased together at about 12:00 AM but there is omission of aforementioned fact in his statement (Ex.D/2). There is also an omission in FIR (Ex.P/ 4) and statement of aforementioned witnesses (Ex.D/1, D/2 and D/3) that 17 accused persons were beating deceased but in FIR (Ex.P/4) and in statement of aforementioned witnesses (Ex.D/1, D/2 and D/3) name of 17 accused persons is mentioned, therefore, non-mentioning of number of 17 persons in FIR (Ex.P/4) and statements of aforementioned witnesses has lost its significance.
30. Apart from that, as alleged by prosecution that number of accused persons was 17 and all of them were beating deceased, in this situation, it is not required from the witnesses that they must give specific particulars that which accused was carrying which type of weapon and who with which weapon gave blows on which body part of injured/deceased, hence, aforementioned omissions are not material and on the aforementioned omissions statement of witnesses can not be doubted.
31. In the judgment of Rajinder Singh and anr. V State of Haryana [AIR 2009 SC 1734], Hon'ble the Apex Court observed that:-
"23. ...It is well settled that if the witness is related to the deceased, his evidence has to be accepted if found to be reliable and believable because he would inter alia be interested in ensuring that real culprits are punished."13
Criminal Appeal No. 930/1995.
32. In the case of Kuldeep Singh Rajawat V State of Madhya Pradesh [Criminal Appeal, 502 of 2011], this court has held as under:-
"(37) It is settled principle of law that merely because the witnesses may be related to the victim or the deceased, their testimony may not be rejected. There is no legal canon that only unrelated witnesses shall be considered credible. On the contrary, we are of the view that it is not natural for the related witnesses to implicate a person falsely leaving aside the actual culprit. It is pertinent to mention here that only the interested witnesses want to see the real culprit is brought to book."
33. In the instant case it appears that Raju Baiga (PW/2), Birulal (PW/3) Babbu (PW/4) and Chamman Bai (PW/5) are close relatives of the deceased but on whole reading of their statement that Birulal (PW/2) has seen the incident from the beginning and at his instance, Raju Baiga (PW/2) and Babbu (PW/4) saw deceased being beaten at the spot. In paragraph 9 to 11 of cross-examination of Chamman Bai (PW/5) it appears that she saw accused persons fleeing, from around 70-80 yards away. Birulal (PW/3) being a child witness, has not stated the name of accused persons and has stated that accused persons were beating deceased by means of axe and lathis. Babbu (PW/4) has also stated that 17 accused persons were beating deceased, accused Babula and Sahaiya with axe, Chulai with stone and remaining accused persons with lathis. Chamman Bai (PW/5) stated the name of Ramji as assailant but Ramji is not mentioned as accused in the FIR (Ex.P/4) and statement of this witness (Ex.P/3). On reading of whole statement of Chamman Bai (PW/5) it also appears that this witness has only seen accused persons fleeing. On the basis of aforementioned eye-witnesses it appears that Birulal (PW/3), Raju Baiga (PW/2) and Babbu (PW/4) have seen the incident and Chamman Bai (PW/5) saw accused fleeing after the 14 Criminal Appeal No. 930/1995.
incident, presence of aforementioned witnesses on the spot at the time of incident is reliable. Statement of Raju Baiga (PW/2) is supported by FIR (Ex.P/2) and statement of Raju Baiga (PW/2), Birulal (PW/3), Babbu (PW/4) and Chamman Bai (PW/5) is also supported by Dr. Pradeep Khare (PW/1) and post-mortem report (Ex.P/1), therefore, their statement also appears to be reliable.
34. SI K.G. Shukla (PW/8) stated that on 28/03/1994, he seized blood stained soil and plain soil vide seizure memo (Ex.P/10). He also seized four pieces of stones (Article- J, K, L and M) vide seizure memo (Ex.P/11) further he stated that he sent the aforementioned articles for chemical examination alongwith letter (Ex.P/31) to FSL Sagar, FSL report is Ex.P/32. As per FSL report (Ex.P/32) blood was found on the seized articles- stone (Article- J, K, L and M) and soil. Therefore, it appears that place of incident is Babbunna's Bari.
35. SI K.G. Shukla (PW/8) stated that on 07/04/1994, he seized seal covered packets of cloth of deceased. HC Jeevanlal (PW/7) stated that Constable Ram Kripal has produced seal covered packet of cloth of deceased from hospital, seizure memo is Ex.P/ 7. SI K.G. Shukla (PW/8) stated that on 30/03/1994 he interrogated accused persons Sahaiya, Jamuna, Babula, Devlal, Jairam, Chulai, Gojwa, Dadra and Babu Baiga, and as per their disclosure statement he prepared memorandum Ex.P/12 to Ex.P/20. He also stated that at the instance of accused persons he seized an axe from accused Sahaiya and lathis from accused persons Chhulai, Jamuna, Gojwa, Devlal, Jairam, Babula, Dadra and Babu Baiga. He prepared seizure memo (Ex.P/21 to Ex.P/29) thereafter, he arrested aforementioned accused persons and prepared arrest memo (Ex.P/30), but it does not appear that cloth of deceased and axe as well as lathis seized from accused persons were sent for chemical examination. SI K.G. Shukla (PW/8) has also not stated that at the 15 Criminal Appeal No. 930/1995.
time of interrogation, the accused persons were in his custody, arrest memo (Ex.P/30) also shows that after interrogation and seizure of articles from the accused persons he arrested the accused person on the same day. In paragraph 29 of cross-examination, he also admitted that there was no blood stains on the lathis. Therefore, aforementioned statement of SI K.G. Shukla (PW/8) and seizure memo (Ex.P/7), memorandum (Ex.P/12 to P/20) and seizure memo (Ex.P/21 to P/29) does not help prosecution case, but the case depends on the statement of eye-witnesses, hence, memorandum and seizure being not proved does not affect the prosecution case adversely.
36. Accused persons have examined witnesses in which Baijnath Gupta (DW/2) alleged shopkeeper, where deceased had gone to purchase colours and bidi. In the house of Daua (DW/1) deceased went to save himself from the assailants. Gullu (DW/3), Dhanu (DW/4), Chukki (DW/5) and Sudesha Yadav (DW/6) are residents, nearby the place of incident. In the case of Mahendra Singh vs The State Of M.P. [AIR 2022 SC 2613],the following was observed by Hon'ble the Apex Court-
"20. It is a settled law that same treatment is required to be given to the defence witness(es) as is to be given to the prosecution witness(es)."
37. Baijnath Gupta (DW/2) stated that his shop is situated at village Dhurwar but his mother was dead and he went to Padmaniya village for terahvi karyakram, therefore, he was not present in Dhurwar village on the last Holi and the next day and hence his shop was closed. He returned after 2-3 days, thereafter he came to know about the death of deceased. Daua (DW/1) stated that at the time of incident deceased had not entered his house and no one had beaten deceased before him. In the evening when police came in village then he came to know about the death of deceased. In paragraph 5 of cross-examination, he admitted that there was enmity 16 Criminal Appeal No. 930/1995.
between deceased Shyamlal and accused Gojwa etc. Further he stated that he does not remember that accused person had caught hold of him or what they did with him as he was in his house. Gullu (DW/3) stated that on the date of incident he had gone to his farm, therefore, he does not know about the incident. Dhanu (DW/4) stated that he was at his home on the date of incident, accused persons have not beaten deceased at the shop of Baijnath (DW/2) before him. He came to know about the incident at about 06:00 PM, when police came in village. On the date of incident, shop of Baijnath (DW/2) was closed.
38. Chukki (DW/5) stated that on the date of incident her son and grandson were not well, she was engaged to look after them, Therefore, she does not know that the accused persons and deceased had a quarrel. She also did not hear any kind of shout of fight. She also came to know about the death of deceased when police came to village. Sudesha Yadav (DW/6) stated that he does not know about the fight between accused persons and deceased, he got knowledge about the death of deceased at about 8:00 PM - 9:00 PM on the date of incident when police came to the village. In paragraph 2 of cross-examination he stated that on the date of incident he stayed inside his home for the entire day and did not come out because of which he can not tell about incident.
39. It is found proved from the aforementioned discussions that the incident started from the outer part of Baijnath's (PW/2) shop and deceased was killed at Babbunna's bari. Blood stained soil and pieces of stones were also recovered from the aforementioned spot. As per the spot map (Ex.P/5), residential houses of Daua (DW/1), Gullu (DW/3) and Babbunna s/o Chukki (DW/5) are present nearby the place of incident. All the defence witnesses have stated that they have no knowledge about the incident. Baijnath Gupta (DW/2) also stated that on the date of incident his shop was closed but as 17 Criminal Appeal No. 930/1995.
per statement of Birulal (PW/3) who clearly stated that at the time of incident he went to Baijnath's (DW/2) shop alongwith deceased and when he came out of the shop, the accused persons had surrounded the deceased. Aforementioned statement of Birulal (PW/3) is reliable as his statement has not been challenged in his cross-examination. Therefore, statements of aforementioned defence witnesses are not reliable, hence, the learned trial court has rightly disbelieved the statement of aforementioned defence witnesses.
40. In the case of Veeran (supra), following was observed by Hon'ble the Apex Court:-
"20. From the upshot of the aforesaid discussions, it appears that the death caused by the accused was not premeditated, accused had no common intention to cause death of deceased, the injuries were not sufficient in the ordinary course of nature to have caused his death, hence the instant case falls under Exception 1 and 4 to section 300 of IPC."
Similar observation was held in the cases of Gurdial Singh [Supra]; Rustam Ali and ors. [Supra]; Phani Bhushan Das [Supra] The judgment of Veeran (supra) cannot be pressed into service in the present case for the simple reason that in our opinion it is a case of premeditated assault by the appellants. Hence, the judgment of Veeran (supra) is of no assistance to the appellants.
41. In the instant case, the statement of Raju Baiga (PW/2) is supported by FIR (Ex.P/4), statement of Raju Baiga (PW 2) Dhirulal (PW/ 3), Babbu (PW/ 4) and Chamman bai (PW/5) and is also supported by statement of Dr. Pradeep Khare (PW/1). At the time of incident their presence on spot is reliable though eye-witnesses Raju Baiga (PW 2) Dhirulal (PW/ 3), Babbu 18 Criminal Appeal No. 930/1995.
(PW/ 4) and Chamman Bai (PW/5) are close relatives of deceased but on this sole basis their statement can not be discarded. It appears from statement of aforementioned eye-witnesses that at the time of incident appellants alongwith co-accused persons had assembled unlawfully, and being a member of unlawful assembly in furtherance of their common object used force and committed riot. It is also seen from the statement of eye-witnesses that prior to the incident deceased was sentenced to life imprisonment for causing death of a person of accused party, because of this the deceased and accused persons had hostile relationship, therefore, it appears that accused persons had motive to cause death of deceased. It is also apparent from the statement of Dr. Pradeep Khare (PW/1) and post- mortem report (Ex.P/1) that 16 wounds (injury no. 13 can not be considered as an injury) were caused on the body of deceased including incised wound on left parietal region, contusion on left maler region on face, over left side of neck and chest and the cumulative effect of those injuries led to death of deceased. Hence, it is also clear that the appellants and co-accused persons in furtherance of common object, with pre-meditation intentionally caused injuries on the body of deceased to cause death. The act of accused persons does not fall in any of the exception to Section 300 of IPC. Therefore, the learned trial court has rightly held the appellants and other accused persons, guilty for the aforementioned offences.
42. In view of foregoing analysis the statement of eye-witnesses is reliable, the learned trial court has rightly relied upon their statements. The prosecution, in our view by leading cogent evidence has successfully established its case beyond reasonable doubt. So far as the question of sentence is concerned, the minimum sentence for the offence u/s 302 of IPC is Life Imprisonment. Accordingly no interference is required.
19Criminal Appeal No. 930/1995.
43. Consequently, the appeal is found to be without substance, hence, dismissed and impugned judgment is hereby affirmed. The sentence and conviction is upheld
44. Appellants, Babula, Jamuna and Devlal are on bail, they are directed to surrender forthwith before the trial court and the trial court shall send them to jail for serving out the remaining part of their jail sentence in accordance with law.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
MISHRA
ARVIND KUMAR MISHRA
2022.08.26 15:10:12 +05'30'