Madhya Pradesh High Court
Mukesh Kumar Shukla & Ors. vs The State Of M.P. Judgement Given By: ... on 26 November, 2013
Author: Vimla Jain
Bench: Vimla Jain
1 Cr.A. No.1808/2003
HIGH COURT OF MADHYA PRADESH
PRINCIPAL SEAT AT JABALPUR
DIVISION BENCH: HON'BLE SHRI JUSTICE A.K.SHRIVASTAVA
& HON'BLE SMT. JUSTICE VIMLA JAIN
CRIMINAL APPEAL NO.1808 / 2003
APPELLANTS : 1. Mukesh Kumar S/o. Dwarka
Prasad Shukla,
2. Suresh Kumar S/o. Dwarka
Prasad Shukla
3. Bablu alias Narayan S/o.
Ramcharan Thakur
4. Dwarka Prasad (dead and his
name has been deleted)
5. Prabhat Kumar, S/o. Dwarka
Prasad Shukla,
All R/o. Village Khurdkheri, P.S.
Tendukheda, District Narsinghpur
(M.P.)
Versus
RESPONDENT: State of Madhya Pradesh
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Appellants by Smt. Durgesh Gupta, Advocate.
Respondent/State by Shri Vijay Pandey, Public Prosecutor.
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JUDGMENT
(26.11.2013) Per Hon'ble Shri Justice A.K. Shrivatava, J.
Feeling aggrieved by the judgment of conviction and order of sentence dated 30.10.2003 passed by learned Sessions Judge, Jabalpur in Sessions Trial No.76/2003 convicting first appellant Mukesh, third appellant Bablu alias Narayan and fifth appellant Prabhat under Section 148 of IPC and further convicting all the accused persons under Section 302/149 and 307/149 of IPC and 2 Cr.A. No.1808/2003 further convicting second appellant Suresh Kumar and fourth appellant Dwarka Prasad under Section 147 of IPC and thereby sentencing them to suffer imprisonment as mentioned in the impugned judgment, the appellants have taken shelter of this Court by preferring this appeal under Section 374(2) of the Code of Criminal Procedure, 1973.
2. It will be relevant to mention here that as many as six persons were arrayed as accused including Mahesh Kumar S/o. Parasram Shukla, but, he was absconding and therefore trial was commenced against all other accused persons who are appellants in this appeal. During the pendency of this appeal on 19.10.2004 this Court allowed the suspension of sentence of appellant no.2 and 4 namely Suresh Kumar and Dwarka Prasad. However, lateron fourth respondent Dwarka Prasad had died and his name has been deleted from the cause title of the memorandum of this appeal vide Court order dated 24.06.2013.
3. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since in elaboration they have been narrated in para 2 to 9 of the impugned judgment. However, for ready reference, it would be condign to mention that on the basis of cause which occurred earlier to the date of incident which is 9.2.2001 since Suresh S/o. Babulal had beaten the appellants. It is said that when deceased was going upon bicycle all the accused persons encircled him and started causing injury by 3 Cr.A. No.1808/2003 their respective weapons which they were carrying. It is said that injured witness Rajesh was also beaten by the appellants. According to prosecution first appellant Mukesh, third appellant Bablu alias Narayan and fifth appellant Prabhat were carrying Katarna (sharp edged weapon) and axe respectively while second appellant Suresh Kumar and fourth appellant Dwarka Prasad were carrying lathis. It is also said that all these appellants dealt blows upon the deceased as well as on the injured Rajesh resulting into his instant death.
4. Dead body of deceased was sent for postmortem and Dr. Shiv Kumar Nema performed postmortem over the dead body. Injured Rajesh was sent to hospital and was examined by Dr.S.P. Ahirwar, who also gave MLC report of the injured. Accused persons were arrested and upon their memorandum statement the respective weapons were also seized by the investigating agency. The statements of witnesses were also recorded and the spot map was also prepared.
5. After investigation was over a charge sheet was submitted in the committal Court which on its turn committed the case to the Court of Session where appellants were tried. Although charge-sheet was also filed against 6th accused Mahesh but since he was absconding, he was not put for trial.
6. The learned Trial Judge on the basis of the material available in the charge sheet, framed charges punishable under Section 148, 302 in alternative 302/149 and 307 of IPC against the 4 Cr.A. No.1808/2003 appellants, which they denied and requested for the trial.
7. In order to bring home the charges, the prosecution examined as many as 19 witnesses and also proved Ex.P/1 to P/37, the documents on record. The defence of the appellants is of false implication and the same defence they set-forth in their statement recorded under section 313 Cr.P.C. However, in support of their defence they did not choose to examine any witness.
8. The learned Trial Court after appreciating and marshalling the evidence came to hold that first, third and fifth appellants namely Mukesh, Bablu alias Narayan and Prabhat have committed offence under Section 148 of IPC. Learned Trial Judge further came to hold that all the accused persons have committed offence under Section 302/149 of IPC. According to learned Trial Judge second appellant Suresh Kumar and fourth appellant Dwarka Prasad have also committed offence under Section 147 of IPC. Learned Trial Judge has also found that all the accused persons have committed offence under Section 307/149 of IPC for causing injury to Rajesh by lathi and sharp edged weapons and eventually convicted them accordingly and passed different sentences which are mentioned in para 39 to 41 of the impugned judgment.
9. In this manner, the present appeal has been filed by the appellants assailing the judgment of conviction and order of sentence.
10. Learned counsel submits that first appellant Mukesh was 5 Cr.A. No.1808/2003 minor at the time of incident and therefore he should not have been tried by the Sessions Court but should have been sent to Juvenile Court. In this regard learned Counsel has drawn our attention to two decisions of Supreme Court they are Amit Singh vs. State of Maharashtra & Anr. 2012 (1) Cr.C.P. (SC) 290 and Jitendra Singh @ Babboo Singh and another v. State of U.P. 2011 (1) M.P.W.N.
105. Hence, it has been prayed that this appeal be allowed by acquitting all the appellants.
11. The contention of learned counsel for appellants is that eyewitnesses are not worth reliable and if their testimony is considered in proper perspective manner, the charges are not proved against the appellants. It has also been put-forth that no charge under Section 147 of IPC was framed against the appellant no.2 Suresh Kumar and appellant no.4 Dwarka Prasad but they have been convicted for the said offence. It has also been specifically put-forth by her that looking to the role assigned to the appellant no.2 Suresh Kumar S/o. Dwarka Prasad since the testimony of eyewitnesses Sunil Pandey (PW1), Suresh Kumar Pandey (PW10) and injured Rajesh (PW14) is inconsistent to each other on material points, therefore, his involvement in the scene of causing injury to the deceased having common object to commit murder becomes highly suspicious. Thus, it has been put-forth by her that benefit of doubt may be extended to this appellant who has been enlarged on bail by this Court on 19.02.2004. 6 Cr.A. No.1808/2003
12. Learned counsel further submits that looking to the evidence of injured it is doubtful that appellants have caused injuries to him and therefore they be acquitted from the offence under Section 307 of IPC. An alternative submission has also been put-forth by learned counsel that if this Court comes to the conclusion that all the appellants have caused injuries to the injured Rajesh (PW14), since second appellant Suresh Kumar has already suffered jail sentence of near about two years and total jail sentence for charge under Section 307 IPC is four year, he be released for the period he had already undergone. Learned counsel submits that except second and fourth appellant namely Suresh Kumar and deceased appellant Dwarka Prasad all the accused persons are in jail for a period of one year and nine months and it has been mentioned in the impugned judgment para 41 and from the date of judgment i.e. 30.10.2003 all the other appellants are suffering the jail sentence.
13. On the other hand, Shri Pandey, learned Public Prosecutor argued in support of the impugned judgment and submitted that all the eyewitnesses have proven the case of prosecution proving the charge under Section 302/149 and 307/149 IPC. Learned Public Prosecutor submits that looking to the role of second and fourth appellant namely Suresh Kumar and deceased appellant Dwarka Prasad they have rightly been convicted under Section 147 of IPC. By inviting our attention to the evidence of all the 7 Cr.A. No.1808/2003 eyewitnesses and also autopsy surgeon Dr.Shiv Kumar Nema (PW17) and postmortem report (Ex.P/36) of deceased it has been contended that there were bruises on the back and buttock region of deceased and therefore involvement of appellant no.2 Suresh and appellant no.4 Dwarka Prasad who were carrying lathis is clear and they have been rightly convicted under Section 302/149 of IPC. It is submitted that appeal has already abated against fourth appellant Dwarka Prasad.
14. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part.
15. So far as the contention of learned counsel for appellants that since first appellant Mukesh was juvenile on the date of incident i.e. 09.02.2001 therefore according to Juvenile Justice (Care and Protection of Children) Act, 2000 his trial should not have been conducted by learned Sessions Court and he should have been referred to Juvenile Justice Board and an application in that regard I.A.No.7757/2013) has also been filed alongwith photocopy of High School Certificate Examination (10+2) is concerned, suffice it to say that looking to the date of incident since it occurred on 09.02.2001 and said Act came into force on 01.04.2001 and therefore incident occurred before coming into force of said Act, thus said Act has no application in the present factual scenario. Before coming into force of the said Act, the Juvenile Justice Act, 1986 was applicable in which age of juvenile is mentioned as 16 years and in this regard our 8 Cr.A. No.1808/2003 attention has been drawn by learned Public Prosecutor to Section 2((h) in which it has been mentioned that Juvenile means a boy who has not attained the age of sixteen years or a girl who has not attained the age of eighteen years. Since appellant Mukesh whose date of birth is 6.5.1983 and therefore he was more than 17 years on the date of incident i.e. 09.02.2001 and since there was no prohibition to try a boy having age more than 16 years, the said objection of learned counsel for appellants cannot be allowed and this application is accordingly rejected. In this backdrop, the decisions relied upon by learned counsel for appellants are not applicable in the present factual scenario.
16. In the present case, the prosecution has examined three persons as eyewitnesses, they are Sunil (PW1), Suresh S/o. Raghunandan Pandey (PW10) and injured Rajesh (PW14). On close scrutiny of testimony of these witnesses we find that first appellant Mukesh was carrying Katarna (sharp edged weapon) while third and fifth appellant namely Bablu alias Narayan and Prabhat were carrying axe, for appellant no.2 Suresh Kumar it is said that he was carrying lathi while fourth appellant Dwarka Prasad who is now dead was also carrying lathi. On going through the statement of Sunil (PW1) who is also author of FIR Ex.P/1 all the six accused persons encircled injured Rajesh and deceased who were going on bicycle. This witness has categorically stated that first appellant Mukesh dealt blow by Katarna (sharp edged weapon) upon the head while 9 Cr.A. No.1808/2003 fifth appellant Prabhat dealt axe blow which landed on the left leg of deceased and third blow of axe was dealt by Bablu alias Narayan which landed on left hand of the deceased. For second appellant Suresh it is said that he caused lathi blow upon the head of the deceased, but, according to Dr. Shiv Kumar Nema (PW17) no injury of lathi was found upon the head. So far as another eyewitness Suresh Kumar (PW10) is concerned, he has simply narrated general allegations against second appellant Suresh S/o. Dwarka Prasad. Although for deceased 4th appellant Dwarka Prasad he has stated that he dealt blows of lathi upon the hands, legs and on abdominal region. Eyewitness Rajesh (PW14) has not at all deposed against second appellant of causing lathi injury. Hence according to us, the role assigned to second appellant Suresh Kumar of causing injury to the deceased upon his head since it is not corroborated by medical evidence, therefore, said averment of this witness against second appellant Suresh Kumar that he caused injury of lathi upon his head has no meaning. The injured eyewitness Rajesh (PW14) has not stated anything against second appellant Suresh Kumar of causing injury by lathi to deceased. Thus, the only eyewitness remained is Suresh Kumar Pandey S/o. Raghunandan Pandey (PW10) who has stated general allegations against this appellant that he caused injuries by lathi to the deceased. On close scrutiny of testimony of autopsy surgeon Dr. Shiv Kumar Nema (PW17) and postmortem report (Ex.P/36) this Court finds that three bruises were found upon 10 Cr.A. No.1808/2003 the back while one bruise on buttock region of deceased but since it has come specifically in the testimony of Sunil (PW1) and Rajesh (PW14) that appellant no.4 Dwarka Prasad was giving blows upon the deceased by lathi on hands and legs, therefore, according to us those injuries are attributed to deceased appellant Dwarka Prasad whose appeal has been abated. Hence, according to us, causing injury by second appellant Suresh to deceased becomes doubtful, therefore, we hereby extend our benefit of doubt to him. Eventually his conviction under Section 302/149 of IPC is hereby set aside. Since his conviction under Section 302/149 IPC is set aside and he is acquitted, he cannot be convicted for offence under Section 147 of IPC and even no charge was framed against him under Section 147 of IPC.
17. However, on going through the evidence of aforesaid eyewitnesses, we find that there is overwhelming evidence against first appellant Mukesh of causing injury by Katarna, third appellant Bablu alias Narayan by axe and fifth appellant Prabhat by axe to deceased and autopsy surgeon has found corresponding injuries in the postmortem report. At this juncture, we would like to refer the postmortem report (Ex.P/34) in which following injuries were found by autopsy surgeon Dr.Shiv Kumar Nema and they are;
1. Incised wound 4"x1/2"xbonedeep vertical with a curve (see diagram) + Brain deep, compd. Fracture skull frontal parietal temporal region seen.
11 Cr.A. No.1808/2003
2. An incised wound 2½"x1/2"x1½" Brain deep vertical on left occipital region and Neck. Compd fracture skull underneath occipital bone seen.
3. Incised wound 1"x1/4" vertical on upper 1/3 rd of Lt. upper arm outer aspect. Compound fracture humcrus Lt side at two places seen.
4. Incised wound 1"x1/4" oblique ½" away from injury no.3 on Lt. upper arm. Compd. Fracture Lt. humcrus seen. Hence, according to us, learned Trial Court did not commit any error in convicting first appellant Mukesh, third appellant Bablu alias Narayan and fifth appellant Prabhat under Section 302/149 IPC, hence they have been rightly convicted for the said offence and sentenced to life.
18. So far as conviction of all the appellants under Section 307/149 of IPC is concerned, looking to the evidence of Rajesh (PW14) which is also corroborated by other eyewitnesses Sunil (PW1) and Suresh (PW10) that all the appellants caused injuries to him by their respective weapons, according to us, there conviction under Section 307/149 of IPC has been rightly accorded. However, looking the entire gamut sentence part is reduced for two years RI. Appellant no.2 Suresh Kumar has already completed near about this sentence barring few days and therefore he is released for the period he had already undergone. He is on bail, his bail bonds shall stands discharged.
12 Cr.A. No.1808/2003
19. We have not said anything in regard to sixth accused Mahesh because he has not been tried in the instant case. Needless to say, this appeal has already been abated against fourth appellant Dwarka Prasad on account of his death.
20. Resultantly this appeal succeeds and is allowed in part. Judgment of conviction of appellant no.2 Suresh Kumar under Section 302/149 IPC is set aside and he is acquitted from this charge. However, his conviction under Section 307/149 IPC is affirmed but his sentenced is reduced for the period he had already undergone. So far as other appellants are concerned, their conviction under Section 302/149 and 307/149 IPC is affirmed and their sentence for offence under Section 307/149 of IPC is reduced to two years RI. All the sentences shall run concurrently.
21. With the aforesaid modification in the impugned judgment, this appeal is disposed of.
(A.K. Shrivastava) (Smt. Vimla Jain)
Judge Judge
26.11.2013 26.11.2013
SS