Jassa vs The State Of Madhya Pradesh on 24 January, 2018

[Cites 9, Cited by 0]

Madhya Pradesh High Court

Jassa vs The State Of Madhya Pradesh on 24 January, 2018

These appeals under Section 374(2) of Cr.P.C. have been preferred by the appellants/accused persons namely Vipin, Saukilal, Kailash, Jassa, Rakesh and Ravi Shanker against the judgment and conviction dated 23.08.2006, passed by Second Additional Sessions Judge (Fast Track

-3 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 Court), Gadarwara, District Narsinghpur (M.P.) in S.T. No.199/2004, whereby the appellants/accused persons have been convicted for commission of offences punishable under Section 148 of IPC and sentenced to undergo rigorous imprisonment for one year and a fine of Rs.100/-, Section 302/149 of IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs.100/-, Section 307/149 of IPC and sentenced to undergo rigorous imprisonment for eight years and fine of Rs.100/- with default stipulation. All sentence to be run concurrently.

2. The prosecution story in nutshell is that the deceased Mulayam Singh, his brother Vishal and the appellants are resident of village Naya Kheda. The appellants were suspecting on Mulayam Singh for practicing Guniyai (witch- craft) and they were keeping enmity with the deceased. On 29.04.2004 at about 8 O' clock in the night deceased Mulayam Singh was sleeping infront of his house and his wife complainant Ram Kali Bai and sister Sudha Bai were taking meal inside the house. Vishal the brother of deceased was returning home, from the field when he reached near the house of deceased, the appellant Jassa armed with axe, Vipin armed with sword, Saukilal armed with kharda (ballam), Kailash armed with axe, Rakesh and Ravi Shanker armed with lathi and other co-accused persons armed with lathi and various weapons came there and assaulted Vishal by giving blows of axe and lathi etc. Jassa inflicted a blow of axe on his head and caused fatal injury. Vishal fell unconscious. Thereafter, the appellants and other accused persons came infront of the house of deceased Mulayam Singh, they caught hold of him and dragged him in-front of house of the

-4 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 neighbour Brindawan and assaulted him by sword, axe, ballam, lathies and killed him. The incident was witnessed by Ram Kali Bai, Sudha Bai and neighbours. Receiving the information of incident M.K. Singhai (PW-13) Station House Officer, In-Charge, Police Station Chichali, visited village Naya Kheda and recorded dehati Nalashi (Ex.P/29) and Marg intimation (Ex.P/30) on the report of Ram Kali Bai and initiated the inquest. The spot map was prepared and plain earth, red earth and a sword were seized from the spot. The panchanama of dead body of deceased Ex.P/3 was prepared and body was sent for post mortem to Civil Hospital, Gadarwada. Injured Vishal Singh, was also sent for MLC and treatment. During investigation on 01.05.2004 appellants and other co-accused persons were arrested and at the instance of appellants Sukhram, Shauki Lal, Rakesh, Jassa, Munna Lal weapons axe, sword and lathi were seized. The statements of witnesses were recorded and seized properties were sent to FSL for examination and after completion of investigation charge-sheet has been filed before the Court against present appellants and 13 other accused persons.

3. The trial Court framed the charges of offence punishable under Sections 147, 148, 302/149 in alternative 307/149 of IPC against the appellants. They abjured guilt and pleaded innocence.

4. Prosecution has examined thirteen witnesses in its support whereas the appellants had examined two witness in their defence.

                            -5 -               Cr. A. No.1727/2006,
                                               Cr.A. No.1899/2006
                                                       &
                                              Cr.A. No.1607/2006

5. The trial Court by passing the impugned judgment held the appellants and co-accused Sukhram guilty for commission of offence punishable under Section, 147, 148, 302/149 and 307/149 of IPC and sentenced them as mentioned hereinabove.

6. It is argued by the learned counsel for the appellants that the appellants have been falsely implicated in this offence. The incident occurred in the night. The prosecution witnesses Ram Kali Bai and Sudha Bai were not present on the spot and they have not witnessed the incident. The witnesses Vishal, Ram Kali Bai and Sudha Bai are near relatives of the deceased and they are interested witnesses, therefore, their testimonies cannot be relied upon without independent corroboration. No independent witness has supported the case of the prosecution. The report was lodged against 19 persons wherein 13 persons have been acquitted by the trial Court. This shows the false implication of accused persons by the complainant. There are material discrepancies found in the statements of above witnesses and they cannot be relied upon beyond reasonable doubt. The trial Court on erroneous appreciation of evidence has convicted the appellants for commission of offence. Therefore, appeal may be allowed.

7. Heard arguments, perused the record.

8. It is not disputed that at the time of incident Mulayam Singh and his brother Vishal had sustained injuries. Mulayam Singh died on the spot. On information of the incident

-6 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 Investigating Officer M.K. Singhai (PW-13) visited the village Naya Kheda and recorded Dehati Nalashi (Ex.P/29) and Marg intimation (Ex.P/30), prepared panchanama of dead body (Ex.P/3) and sent the body for postmortem. These facts are duly verified by the witnesses M.K. Singhai (PW-13), Ram Kali Bai (PW-10).

9. Dr. D.S. Choudhary (PW-4) deposed that on 01.05.2004 at Civil Hospital, Gadarwada, he had performed the postmortem of dead body of deceased Mulayam Singh and found following injuries:-

"1. Incised wound 4 x 2 x 1 cm over right cheek, laterally to right eye, vertical, margin clear cut.

2. Incised wound 5 x 2 x 1 cm below right eye on cheek horizontal, margin clear cut.

3. Incised wound 5 x 2 x 1.5 cm over occipital area of scalp horizontal margins clear cut.

4. Contusion 3 x 2 cm over frontal part of scalp on right side.

5. Contusion 4" x ½" over left side of neck.

6. Contusion 3" x 1" over chin.

7. Abrasion 7 x 3 cm over left side of chest.

8. Contusion 20 x 4 m over abdomen wall.

9. Contusion 8 x 3 cm on the wrist.

-7 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006

10. Contusion 16 x 4 m over upper half of the left fore arm.

11. Contusion 10 x 2 cm over right fore arm.

12. Contusion 10 x 4 cm over upper arm.

13. Abrasion 10 x 1 cm on right side of chest.

14. Abrasion 10 x 4 cm lateral aspect of right knee.

15. Contusion 12 x 4 cm over right foot.

16. Abrasion 3 x 3 cm over right leg.

17. Contusion 10 x 4 cm on lower side of right leg.

18. Abrasion 3 x 2 cm over scrotum with rupture of testis on right side.

19. Lacerated wound 5 x 3 x 0.5 cm over right middle finger posterior aspect.

20. Lacerated wound 5 x 3 x 1 cm on right finger fracture proximal phalanx.

21. Lacerated wound 5 x 2 x 1 cm over posterior aspect of left hand.

22. Contusion 10 x 4 cm on back.

23. Contusion 12 x 5 cm over right buttock.

24. Abrasion 6 x 3 cm over left leg.

25. Contusion 5 x 3 cm over calf muscle.

                            -8 -            Cr. A. No.1727/2006,
                                            Cr.A. No.1899/2006
                                                    &
                                           Cr.A. No.1607/2006



          26. Contusion 6 x 4 cm over right
          calf muscle."

On internal examination of deceased Mulayam Singh the Doctor found that blood clot was present in brain, brain and spinal cord was ruptured, haemotoma present in brain substance, there was congestion in lungs, throat and wind pipe were congested, lacerated wound was found in right lung, 5th, 6th and 7th ribs were fractured, left lung was ruptured, there was swelling on scrotum and testicles and right testicle was lacerated.

10. The Doctor opined that the cause of death was shock, syncope and hemorrhage as result of injuries caused on vital parts of the body i.e. brain and lungs. All the injuries are ante-mortem in nature and the injuries are sufficient to cause death. The statement of doctor is duly corroborated by postmortem report Ex.P-19 given by him. Therefore, relying upon the testimony of doctor and postmortem report, it is proved that deceased Mulayam Singh has sustained injuries at the time of incident and his death was homicidal.

11. Vishal (PW-11) had also sustained injuries at the time of incident. He was medically examined by Dr. Smt. K. Uikey at Civil Hospital Gadarwada on 30.04.2004. Dr. Uikey deposed that on examination of Vishal, she noticed following injuries :-

"1.Lacerated wound right side of forehead size 3 x 2.5 x deep muscle.

2. Contusion over left cheek size 4 x 3 cm.

-9 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006

3. Contusion over mid of left wrist 6 x 2.5 cm.

4. Contusion over right arm size 6 x 1.5 cm.

5. Contusion over left mid leg size 6 x 4.5 cm."

6. On X-ray examination there was a fracture of frontal bone of head and left ulna bone of hand were found.

It was opined that the injuries were caused by hard and blunt object within 6 hours of examination. Injuries no.1, 2 & 4 are simple in nature. Injuries nos.3 & 5 are grievous in nature. The statement of doctor is corroborated by MLC report Ex.P-23 and X-ray report Ex.P-25. In cross- examination, the statement of doctor remained uncontrovered, therefore relying upon her testimony it is proved that Vishal had sustained grievous injuries at the time of incident.

12. Now the question arises whether the appellants have found unlawful assembly and in furtherance of common object of assembly, they killed the deceased Mulayam Singh and inflicted injuries to Vishal with intention to kill him.

13. The prosecution has examined Madan Thakur (PW-1), Bhulia Bai (PW-2), Gopilal (PW-5), Gawadu (PW-6), Ramkali Bai (PW-10), Vishal Singh (PW-11) and Sudha Bai (PW-12) as eyewitnesses to the incident. The witnesses Madan Thakur (PW-1), Bhulia Bai (PW-2), Gopilal (PW-5), Gawadu (PW-6) had stated that they had not witnessed the incident and they

-10 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 have been declared hostile by the prosecution. The remaining witnesses Ramkali Bai is wife of the deceased and Vishal Singh and Sudha Bai are brother and sister of the deceased. Being close relative of the deceased, we have to consider their evidence with caution and circumspection.

14. Complainant Ramkali Bai (PW-10) in her cross- examination para 26 has admitted the suggestions given by the appellants and deposed that accused Vrandawan is uncle of accused Vipin and Kailash. Appellants Rakesh, Ravi- Shanker are sons of Vrandawan. Thus, it is evident that appellant Vipin, Kailash, Rakesh and Ravi Shanker are cousin brothers. Ramkali Bai further deposed that a month prior to incident, father of Vipin was expired and appellants were suspecting Mulayam Singh for untimely death their father. They suspect Mulayam Singh to practice Jaadu Tona (witch- craft) and due to this enmity, they had assaulted the deceased Mulayam Singh. The statement of Ramkali Bai (PW-10) is corroborated by Vishal Singh (PW-11) and Sudha Bai (PW-12). In cross-examination, the above statements of witnesses remained unchallenged. Therefore, relying upon above testimony of the witnesses PW-10, PW-11 and PW-12 the trial Court has rightly held that the appellants were having enmity with the deceased.

15. Vishal Singh (PW-11) deposed that at the time of incident, he was returning home from his field. On the way, Sukhram and his wife met him and they were talking about crop, meanwhile, accused persons came there. Appellant Vipin assaulted him by sword, Kailash assaulted him by axe

-11 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 on his cheek, Sukhram inflicted a blow by blunt side of axe and appellant Ravi and Rakesh had inflicted blows of lathi. Meanwhile, accused Jassa came there and inflicted blows of lathi on his back. Receiving the injuries, he fell down thereafter appellants and accused persons went to the house of his brother Mulayam Singh and brought him in front of gate of Vrindawan's House and beaten him. Appellant Vipin assaulted Mulayam Singh by sword, Shokilal assaulted him by Ballam on his eyes, Sukhram inflicted a blow of lathi on his head and all the accused persons started beating him. The witness Sudha Bai and Ramkali Bai had also arrived on the spot and witnessed the incident. In his cross examination he has admitted that after receiving injuries he fell down. This shows that he did not come to the spot where deceased was assaulted. In his police statement Ex.D-2 he had stated that after receiving injuries he became unconscious. Therefore it becomes doubtful whether he had seen the beating of deceased Mulayam Sing or not.

16. Ramkali Bai (PW-10) deposed that on the date of incident at about 7:00-8:00 p.m. in the night, Ramkali Bai and her sister-in-law Sudha Bai were taking meal in her house, meanwhile, they heard the sound of quarrel coming from outside. Hearing this, deceased Mulayam Singh came out of the house followed by Ramkali Bai and Sudha Bai. Meanwhile, the appellants and other accused persons armed with deadly weapons arrived in front of the house. The appellant Vipin was armed with sword, Kailash armed with axe, Sukhram armed with lathi, Shokilal armed with Kharda (Ballam), Jassa, Shayam, Halkan, Billu, Setha, Rajju, Ram

-12 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 Prasad, Bhura, Vrandawan, Munna, Rakesh, Rajesh, Laxmi all were armed with axes and Munda armed with lathi started beating Mulayam Singh. Appellant Vipin inflicted a blow of axe on the neck of Mulayam Singh, appellant Kailash assaulted him by axe on his head. Shokilal dealt a blow of Kharda (Ballam) on right eye and Sukhram assaulted him by lathi and caused injuries on his head. All other accused persons had inflicted injuries to Mulayam Singh by lathi and rod. It is further deposed by Ramkali Bai that prior to beating of her husband Mulayam Singh, the accused persons had assaulted her brother-in-law Vishal.

17. Sudha Bai (PW-12) deposed that on the day of incident around 7:00-8:00 p.m. in the night she was having meal in the house of her brother Mulayam Singh. Meanwhile, she heard the noise of quarrel, hearing this she came out of the house along with his brother Mulayam Singh and Bhabhi Ramkali Bai. She saw that the accused persons were beating Vishal. Thereafter, appellants came in front of the house of Mulayam Singh and started beating him. Appellant Vipin assaulted him by sword and Kailash assaulted him by axe. All the appellants and accused persons had beaten him. Mulayam Singh received fatal injuries and he had expired on the spot.

18. The Investigating Officer M.K. Singhai (PW-13) deposed that on 30.04.2004, he was posted as In-charge SHO Police Station Chichli. He has recorded Dehati Nalsi Ex.P-29 on the report of Ramkali Bai and initiated the inquest by making Panchnama of dead body Ex.P-3. He had sent the

-13 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 dead body for postmortem. On 01.05.2004 he had arrested appellants Sukhram, Shokilal, Rakesh, Jassa, Vipin, Kailash, Munnalal and recovered lathi, axe, Kharda (Ballam) on the basis of their memorandum statements.

19. Thus, from the testimonies of PW-10, PW-11 and PW- 12, it appears Vishal had not witnessed clearly who had assaulted the deceased. From the spot map (Ex.P/31) it appears that the place where he was assaulted is not adjacent to the spot, where the deceased was beaten. Similarly it is doubtful whether Ramkali Bai and Sudha Bai had witnessed the beating of Vishal ? It appears that they have witnessed the beating of deceased because they were present in the house at the time of incident. They are natural witness and only on the ground of their relationship with deceased their testimonies can not be discarded.

20. This is settled law that merely because in a murder case, prosecution witnesses were interested and inimical, that by itself is no ground to reject their testimony in toto. The evidence of interested witnesses should however be scrutinised with care. Close relationship of the witness with the injured is not sufficient to suspect credibility and desirability subjecting the testimony of the evidence of the relatives to close and severe scrutiny arises only when it is shown that there was likelihood of an attempt to falsely implicate an accused but where the incident had taken place in the broad day-light and there was no reason to falsely implicate the accused, the testimony of the interested witness could not be brushed aside.

                                  -14 -              Cr. A.
No.1727/2006,                                Cr.A. No.1899/2006
                                                    &
                                            Cr.A. No.1607/2006

21. As far as testimony of Vishal is concerned he is an injured witness. His presence at the scene of occurrence can not be doubted. Law is well settled that an injured person is the best witness to say about the cause of his injuries unless the injuries are shown to be self inflicted. His presence at the spot cannot be disbelieved and he would not easily substitute a wrong person in place of his real assailant. The evidence of an injured cannot be rejected on the ground that he is an interested witness . Even if the prosecution proves that there was dispute between the parties but that cannot also be a ground to discard the evidence of the injured, if it is otherwise found to be reliable, cogent and trustworthy inasmuch as enmity is a double edged weapon. Enmity can be a ground to falsely institute a case against a person but at the same time it can also be a motive for commission of the crime. Therefore, on the mere plea of false implication taken by the defence without any documentary and oral evidence to that effect, the prosecution case cannot be disbelieved.

22. Thus from the statement of Vishal, appellant Vipin assaulted him by sword, Kailash assaulted him by axe and appellants Rakesh and Ravi Shanker assaulted him by lathies.

23. In respect of deceased, complainant Ramkali Bai (PW-

10) deposed that the appellant Vipin assaulted the deceased Mulayam Singh by sword and appellants Jassa, Kailash assaulted him by axe and Shokilal assaulted him by Kharda (Ballam). Sudha Bai (PW-12) deposed that Vipin assaulted the deceased by sword and Kailash assaulted him by axe. As

-15 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 ear as other accused persons are concerned there are general statement of these witnesses that other accused persons had also beaten the deceased. Thus from careful scrutiny of testimonies of PW-10, PW-11 and PW-12, the presence of appellants Vipin, Jassa, Kailash, Saukilal, Rakesh and Ravishanker, at the time of occurrence is fully established. They were not only present but participated in assaulting the deceased and his brother Vishal.

24. It has been contended by the counsel for the appellants that there is material discrepancies in the statements of the witnesses regarding the part played by each one of the assailants. The witnesses are not able to describe against the individual act of each appellant therefore they can not be relied upon. This argument can not be accepted.In case law Vyas Ram @Vyas Kahar v. State of Bihar AIR 2014 SC (Suppl) 143 Hon'ble Supreme Court observed as under:-

"That where a crowd of assailants, who were the members of an unlawful assembly proceed to commit a crime, in pursuance of the common object of that assembly, it is often not possible for the witnesses to describe the actual part played by each one of them, and when a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In that case several weapons were carried by different members of the unlawful assembly, and an accused who was the member of such an assembly and was carrying firearms was not permitted to take any advantage of the fact that he did not use those firearms, though other members of the assembly used their respective firearms."

                                  -16 -              Cr. A.
No.1727/2006,                                Cr.A. No.1899/2006
                                                    &
                                            Cr.A. No.1607/2006

In the present case, it is established that appellants were having enmity with the deceased. They were suspecting him to practice witch-craft on the father of appellant Vipin who had expired one month prior to incident. All the appellants along with other assailants arrived on the scene of occurrence armed with deadly weapons. They had assaulted the brother of deceased and there after assaulted deceased and inflicted ..........injuries on vital part of body. This clearly shows the common object of appellants to kill the deceased. It is also evident from testimonies of witnesses that soon after the beating of Vishal the appellants assaulted the deceased. Both the beatings are the part of same incident and offence. In view of aforesaid it is rightly held by the Trial Court that the appellants being member of unlawful assembly, in furtherance of common object of assembly killed the deceased and caused fatal injuries to Vishal."

25. Hon'ble Apex Court in case law Lalji Vs. State of U.P. (1989) (1) SCC 437 in para 9 and 10 observed as under :-

"9. ..... Once the case of a person falls within the ingredients of the section the question that he did nothing with his own hands would be immaterial. He cannot put forward the defence that he did not with his own hands commit the offence committed in prosecution of the common object of the unlawful assembly or such as the members of the assembly knew to be likely to be committed in prosecution of that object. Everyone must be taken to have intended the probable and natural results of the combination of the acts in which he joined. It is not necessary that all the persons forming an unlawful assembly must do some overt act. When the accused persons assembled toghether, armed with lathis, and were parties to the assault on the complainant party, the prosecution is not obliged to prove which specific overt act was done by which of the accused. This section makes a member of the

-17 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 unlawful assembly responsible as a principal for the acts of each, and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section

149. It must be noted that the basis of the constructive guilt under section 149 is mere membership of the unlawful assembly, with the requisite common object or knowledge.

10. Thus once the court hold that certain accused persons formed an unlawful assembly and an offence is committed by any member of that assembly in prosecution of the common object of that assembly, or such as the members of the assembly knew to be likely to be committed in prosecution of that object, every person who at the time of committing of that offence was a member of the same assembly is to be held guilty of that offence. After such a finding it would not be open to the Court to see as to who actually did the offensive act or require the prosecution to prove which of the members did which of the offensive acts. The prosecution would have no obligation to prove it."

26. Where the evidence of eye witness is cogent and acceptable, it cannot be rejected for little discrepancies or on cryptic observation of general nature that it appears to be suspicious or in absence of strong reason and also where it is corroborated by other circumstances of the case. Where a large number of persons involved in commission of crime it is difficult for witnesses to describe the role played by each accused. The testimonies of witnesses Vishal, Ram Kali and Sudha Bai appears to be cogent reliable and trustworthy. The trial Court on proper appreciation of evidence relied upon their version and held the appellants guilty for commission of offence punishable under Sections 148, 302/149 and

-18 - Cr. A. No.1727/2006, Cr.A. No.1899/2006 & Cr.A. No.1607/2006 307/149 of IPC. We do not find any infirmity or perversity in the findings recorded by the trial Court.

27. Consequently, we do not find any merits in present appeals and hereby dismissed. The bail bonds of appellants stand cancelled and they are directed to surrender before the trial Court in order to undergo remaining part of sentence as awarded by the trial Court.




                              (S.K. Gangele)                         (Anurag Shrivastava)
                                  Judge                                     Judge

 haider/Vin*
Digitally signed by SYED
MOHAMMAD SAQLAIN HAIDER
Date: 2018.01.24 03:03:57
-08'00'

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