Madhya Pradesh High Court
Dhooman And Ors. vs The State Of M.P. on 25 September, 2017
THE HIGH COURT OF MADHYA PRADESH AT JABALPUR
Division Bench:
(1)Hon'ble Shri Justice S.K. Seth.
(2)Hon'ble Shri Justice Rajendra Mahajan.
CRIMINAL APPEAL No.415 of 2004
Asharam S/o Shivdeen
Adiwasi, aged 27 years,
R/o village Berkhedi, P.S.
Khurai, District Sagar, M.P.
Appellant.
With
CRIMINAL APPEAL No.1059 of 2004
1. Dhuman S/o Gorelal
Adiwasi, aged 27 years.
2. Ghasite S/o Gorelal
Adiwasi, aged 41 years.
3. Sumatrani W/o Dhuman
Adhiwasi, aged 31 years.
4. Gajrani W/o Ghasite
Adiwasi, aged 36 years.
All are the residents of
village Berkhedi, P.S.
Khurai, District Sagar, M.P.
Appellants.
Versus
The State of Madhya
Pradesh through Police
Station Khurai, district
Sagar, M.P.
Respondent.
2
Cr.A. Nos.415/2004 & 1059/2004
...............................................................................................
For Appellant Asharam : Shri Om Namdeo, learned
counsel.
For remaining appellants : Shri Vijay Denial, learned
counsel, appointed by the H.C.
Legal Services Committee.
For Respondent/ :Shri Pradeep Singh, learned
State Government Advocate.
..............................................................................................
JUDGMENT
(Pronounced on 25.9.2017) Per: RAJENDRA MAHAJAN, J.
These appeals are directed against the judgment and order dated 21.01.2004 passed by the Additional Sessions Judge Khurai District Sagar in Sessions Trial No.298/2002, whereby each of the accused-appellants stood convicted under Sections 147, 148, 302 read with 149, 307 read with 149 and 323 read with 149 (two counts) of the IPC and sentenced to suffer on first count R.I. for six months, second count R.I. for one year, third count R.I. for life, fourth count R.I. for seven years and fifth and the last count R.I. for three months for each out of the two counts. The sentences in the aforesaid Sections are directed to run concurrently. It be noted that the fine sentence in any of the Sections is not imposed by the learned ASJ.
3
Cr.A. Nos.415/2004 & 1059/2004
2. The prosecution case as unfolded before the trial Court in the course of trial, in brief, is as under:-
(2.1) On 04.06.2002 at about 6.15 am, complainant Nima Bai (PW/1) made an oral report at Police Station Khurai of Sagar district stating that in the evening of 03.06.2002 in village Berkhedi, she, Sunny Bai (PW/3) and Gungun @ Sudama (since deceased) had gone in search of Raghunath (PW/2) in the village. When they were in front of the house of one Kalyan (not examined) accused Asharam with Sang (a short pointed spear), accused Dhuman with Datua and accused Ghasite, Gajrani, the wife of accused Ghasite, Sumatrani, the wife of accused Dhuman and Dhannu @ Dhanna and Sukhram, who are the juvenile conflict in law and who are sons of accused Ghasite and accused Dhuman respectively with Lathis came together and assaulted Gungun. Thereupon, she and Sunny Bai came to the rescue of Gungun. At that time, accused Dhuman inflicted blows of Datua on her left side of head and right shoulder. Accused 4 Cr.A. Nos.415/2004 & 1059/2004 Ghasite gave blows of Lathi over the left knee of Sunny Bai. In the meantime, Raghunath came to the place of occurrence and he made an attempt to save Gungun. Thereupon, accused Dhuman exhorted the other accused persons to kill him. Having heard so, Raghunath ran towards the agricultural fields of the village to save himself. All the accused persons chased him down and accused Dhuman inflicted blows of Datua in his mouth. As a result, his lips and chin were injured and teeth were broken. Accused Ghasite assaulted him with Lathi, causing injuries on his ribs. Accused Sumatrani and Gajrani and juvenile Dhannu and Sukhram with Lathis caused injuries to him (Raghunath) on his back and knees. Accused Asharam inflicted a blow of Sang on his head. The incident was witnessed by Banti Harijan (not examined), Rajo Bai (PW/11), Rukman Bai (PW/12). Later the villagers of village Ujanate also came to place of occurrence running. After committing the offence, all the accused persons left the place of occurrence.
5
Cr.A. Nos.415/2004 & 1059/2004 Thereafter, they found Gungun dead. Complainant Nima Bai has also stated that on account of non-availability of transport, she could not come to the police station to lodge the report in the night of incident itself. On the basis of her oral report, G.R. Ahirwar (PW/6), the SHO of Police Station Khurai, recorded the FIR Ex.P-1 and registered a case at Crime No.189/2002 against all the seven accused persons for the offence punishable under Sections 147, 148, 149, 302, 307 and 323 IPC.
(2.2) G.R. Ahirwar (PW/6) and Sub-Inspector M.L. Rai (PW/9) investigated the case. On 04.06.2002, they reached the place of occurrence. There G.R. Ahirwar held an inquest enquiry on the dead body of deceased Gungun in the presence of public witnesses and prepared an inquest report Ex.P-3. He also prepared a spot map Ex.P-11 at the instance of Rukman Bai (PW/12). M.L. Rai collected blood smeared earth and plain earth from the place of occurrence in the presence of Darau (PW/4) and Mohanlal (not examined) vide 6 Cr.A. Nos.415/2004 & 1059/2004 seizure memo Ex.P-4. They sent the dead body of deceased Gungun for post-mortem examination and Raghunath, Nima Bai and Sunny Bai for medico-legal examination to the Civil Hospital Khurai. There, on 04.06.2002, Dr. R.K. Patel (PW/7) medico-legally examined the aforesaid injured persons and Dr. R.C. Agrawal (PW/8) conducted the post-mortem examination on the body of deceased Gungun. Raghunath was admitted in the hospital for treatment. On 04.06.2002 Executive Magistrate, P.C. Jain (PW/14) recorded his dying declaration Ex.D-3.
(2.3) On 05.06.2002, G.R. Ahirwar interrogated accused Gajrani and Sumatrani in the presence of Anandi Lal (PW/5) and Niranjan Singh (PW/13) and upon their disclosure statements Ex.P-5 and Ex.P-7 respectively he seized from their possession one bamboo stick each vide seizure memos Ex.P-6 and Ex.P-8 respectively. On 05.06.2002, accused Asharam produced a bamboo stick, the one end of which was fitted with pointed-flat object made of iron metal, and 7 Cr.A. Nos.415/2004 & 1059/2004 accused Dhuman produced an iron rod, the one end of which was flat and sharp and the other end was round to, G.R. Ahirwar. He seized them in the presence of the aforesaid witnesses vide seizure memos Ex.P-9 and Ex.P-10. Later, he arrested all the four accused persons. On 08.07.2002, M.L. Rai arrested accused Ghasite vide arrest memo Ex.P-16 in the presence of Shri Ram and Lakhan (not examined) and seized one bamboo stick vide seizure memo Ex.P-24. M.L. Rai recorded the case diary statement of Rajo Bai (PW/11). G.R. Ahirwar recorded the case diary statements of complainant Nima Bai, Raghunath, Sunny Bai, Rukman Bai, Darau and Dashrath. He sent all the articles collected in the course of investigation for forensic examinations to the Forensic Science Laboratory Sagar, which sent the report (not exhibited) but it is on record. (2.4) Upon completion of the investigation, the police filed the charge-sheet against the accused persons namely Asharam, Dhuman, Ghasite, Sumatrani and Gajrani under Sections 147, 148, 8 Cr.A. Nos.415/2004 & 1059/2004 149, 302, 307 and 323 IPC in the Court of Judicial Magistrate First Class, Khurai and the charge-sheet against juvenile Sukhram and Dhannu before the Juvenile Court Sagar under the same Sections of law.
(2.5) After the committal proceedings, the case was registered as Sessions Trial No.298/2002 and was made over to the Additional Sessions Judge, Khurai for trial.
3. The learned Additional Sessions Judge framed the charges against all the accused persons under Sections 147, 148, 302 and in alternative 302 read with 149, 307 (for making an attempt on the life of Raghunath) and in alternative 307 read with 149 and 323 (two counts- for causing simple injuries to Nima Bai and Sunny Bai) and in alternative 323 read with 149 IPC. The accused persons denied the charges and opted for trial. Thereupon, the learned ASJ put them to trial. In the examination under Section 313 Cr.P.C., the accused persons denied all the circumstances and incriminating evidence appearing against them in the prosecution evidence. Their defence was, simpliciter, false implication by the complainant party on 9 Cr.A. Nos.415/2004 & 1059/2004 account of old enmity. However, they did not adduce any evidence either oral or documentary in their defence. The learned ASJ, having analyzed and appreciated the evidence on record, has found the accused persons guilty of committing murder of deceased Gungun, making an attempt to murder Raghunath and causing simple injuries to complainant Nima Bai and Sunny Bai in furtherance of common object having formed an unlawful assembly. Upon the aforesaid findings, the learned ASJ convicted them under Sections 147, 148, 302 read with 149, 307 read with 149 and 323 read with 149 (two counts) IPC and sentenced them thereunder as noted in para 1 of this judgment. Feeling aggrieved by the impugned judgment, the accused persons are before this Court in the appeals under Section 374 (2) Cr.P.C.
4. In the course of arguments, learned counsel for the accused persons, after referring to the depositions of prosecution witnesses namely Nima Bai (PW/1), Raghunath (PW/2), Sunny Bai (PW/3), Darau (PW/4), Dasrath (PW/10), Rajo Bai (PW/11) and Rukman Bai (PW/12) in detail, submits that accused Dhuman and Ghasite are the real brothers, accused Sumatrani and Gajrani are their wives 10 Cr.A. Nos.415/2004 & 1059/2004 respectively and accused Asharam is the brother-in-law of accused Dhuman as per the para 15 of deposition of Rukman Bai. Thus, accused persons are the members of a very close family. It was further submitted by referring to their depositions that the houses of accused persons are close to the place of occurrence. It was further submitted that Raghunath is the son of Dasrath and Rukman Bai, Sunny Bai and Rajo Bai are the step sisters of Raghunath, and Nima Bai is real Mausi of Raghunath as she is the real sister of his mother Rukman Bai. Darau is the father of deceased Gungun. It was further submitted that Babloo (not examined) and Raghunath are the real brothers, and they are facing trial for assaulting accused Dhuman prior to one year before the present incident. It was further submitted that Raghunath has stated in para 8 of his evidence that Rukman Bai was convicted and sentenced for having murdered her so called husband Uttam, in that case Gorelal, the father of accused Dhuman and Ghasite, gave evidence against Rukman Bai and that when Rukman Bai was in jail, accused Dhuman broke the lock of her house and committed theft. In view of the aforesaid evidence, there is a deep rooted enmity between the prosecution party and the culprit party long 11 Cr.A. Nos.415/2004 & 1059/2004 before the instant incident. It was further submitted that Raghunath and deceased Gungun are fast friend. Thus, the aforesaid witnesses are the relative and interested witnesses owing to which implicit reliance cannot be placed upon their evidence.
5. It was further submitted on behalf of the accused persons that Darau, the father of deceased Gungun, has admitted in his evidence that he is a resident of village Ujanate, and he has also stated that the distance between village Ujanate and Birkhedi, the place of occurrence, is 2 km. He has deposed that he reached the place of occurrence having heard that his son Gungun was murdered. Thus, he is not an eye-witness to the incident. It was further submitted that Dasrath, the father of Raghunath, has plainly admitted in para 12 of his cross-examination that he had not witnessed the incident. Thus, he is also not an eye-witness to the incident. It was further submitted that as per the evidence of Sunny Bai and Rajo Bai, they are the residents of village Ujanate. Sunny Bai in para 6 of her cross-examination has stated that they reached village Birkhedi, the place of occurrence, from village Ujanate after the incident. Thus, Sunny Bai and Rajo Bai are also not eye- 12
Cr.A. Nos.415/2004 & 1059/2004 witnesses to the incident. It was further submitted that Rajo Bai in para 4 of her examination-in-chief has stated that she and Sunny Bai kept Raghunath in the injured condition on chaff and covered his body with cow-dung at the place of incident after the accused persons left the place of occurrence as they feared that accused persons may again assault him. However, her said evidence is not corroborated by Sunny Bai and Dasrath, which in turn proves that she and Sunny Bai are not the eye-witnesses of the incident. It was further submitted that Dr. R.K. Patel (PW/7) has examined Sunny Bai, and he has stated in para 5 of his examination- in-chief that he found only one contusion size 3x½ inch on her left thigh. This fact is admitted by Sunny Bai herself in para 7 of her examination-in-chief. The said injury may be self inflicted. Therefore, on the basis of her injury as well, it can be said that Sunny Bai is not an eye-witness of the incident. It was further submitted that in view of the aforesaid evidence, Dasrath, Darau, Sunny Bai and Rajo Bai are not eye-witnesses of the incident and they are only hearsay witnesses. Consequently, their evidence is no evidentiary value.
6. It was further submitted on behalf of the accused 13 Cr.A. Nos.415/2004 & 1059/2004 persons that only Nima Bai, Raghunath and Rukman Bai might be eye-witnesses. Nima Bai has stated in para 4 of her examination-in-chief that on the following day morning, the police came to her village Birkhedi and took her in police vehicle to the Police Station Khurai. Thereafter, she lodged the FIR Ex.P-1. On the basis of her said admission, it was submitted that the FIR was lodged after due deliberation. Therefore, a strong possibility of false implication of accused persons exists because they are family members and they have old enmity with the complainant party. The FIR is also hit by the provision of Section 161 Cr.P.C. for the said reason. It was further submitted that Rajo Bai in para 4 of her examination-in-chief has stated that she, Nima Bai, Sunny Bai and her father Dasrath went to the police station, where Dasrath had lodged the FIR. Thus, there is a material contradiction on the point who had lodged the FIR whether Nima Bai or Dasrath? It was further submitted that as per the FIR, accused Asharam inflicted injuries on the person of deceased Gungun with a Sang. Nima Bai in para 7 of her examination-in-chief has stated that one end of the Sang is pointed and it is used for killing domestic pigs. The same description of Sang is given by Raghunath in para 17 and 14 Cr.A. Nos.415/2004 & 1059/2004 Sunny Bai in para 14. It was submitted that Dr. R.C. Agrawal (PW/8) has conducted the post-mortem examination on the dead body of deceased Gungun, and he has stated in his evidence and post-mortem report Ex.P-20 that he had not found any injury on the person of deceased Gungun, which had been caused by hard and pointed object like Sang. It was further submitted that Raghunath has admitted that his dying declaration Ex.D-3 was recorded by the Executive Magistrate while he was undergoing the treatment in the Government Hospital Khurai. After referring to his dying declaration Ex.D-3, it was submitted that Raghunath has stated therein that Imrat, the brother-in-law of accused Dhuman, assaulted him. However, there is no evidence on record to the effect that Imrat and accused Asharam is one and the same person. It was submitted that if the aforesaid evidence is read conjointly, then it is proved that accused Asharam is falsely implicated in the case, and that Nima Bai and Raghunath have given false evidence against him. It was further submitted that Raghunath in para 13 of his cross-examination has admitted that the police had not interrogated him in respect of the incident, meaning thereby the Investigating Officer G.R. Ahirwar (PW/6) has not truly 15 Cr.A. Nos.415/2004 & 1059/2004 recorded his case diary statement Ex.D-2. It was further submitted that Rukman Bai in paras 2 and 8 has deposed that when the accused persons ran towards her with an objective to assault her, she went to her house running. Thus, she had not witnessed the incident. After referring to the FIR, depositions of Nima Bai, Raghunath and Rukman Bai and their case diary statements as above, it was pointed out by the learned counsel for the accused persons that there are material inconsistencies, contradictions and omissions making their evidence wholly unreliable and untrustworthy.
7. It was further submitted on behalf of the accused persons that in the course of investigation at the instances of accused Dhuman one iron rod, accused Gajrani, Sumatrani and Ghasite one Lathi each and Asharam one bamboo stick fitted with pointed iron object on end were seized. After referring to the unexhibited FSL report, it was submitted that no blood stains were found on the aforesaid seized articles. Therefore, the seizure of the aforesaid articles does not connect the accused persons with the crime.
8. It was further submitted on behalf of the accused persons that there is no iota of evidence on record that 16 Cr.A. Nos.415/2004 & 1059/2004 accused persons bear enmity with deceased Gungun. Therefore, there no question arises that the accused persons would commit the murder of deceased Gungun.
9. It was further submitted on behalf of the accused persons that Dr. R.K. Patel (PW/7) had medico-legally examined Raghunath and that he has not given a specific finding that any of the injuries sustained by him is sufficient in ordinary course of nature to cause his death. Therefore, the learned Judge has wrongly convicted the accused persons under Section 307 read with 149 IPC in respect of the injuries sustained by Raghunath.
10. In the light of aforesaid arguments, learned counsel for the accused persons submitted that the learned ASJ has not taken into consideration the aforesaid evidence while appreciating the evidence of the material prosecution witnesses. Therefore, the learned ASJ has convicted the accused persons upon highly erroneous appreciation of evidence. In consequence, the appeals of the accused persons be allowed and they be acquitted of the charges framed against them by setting aside the impugned judgment.
11. In reply, learned Government Advocate submitted that 17 Cr.A. Nos.415/2004 & 1059/2004 it has come in the evidence of the material prosecution witnesses that accused persons committed murder of deceased Gungun because he was a fast friend of Raghunath with whom the accused persons bear old enmity. Therefore, it is wrongly contended on behalf of the accused persons that they had no motive to commit murder of deceased Gungun. Moreover, since the ocular evidence is on record regarding the murder of deceased Gungun by the accused persons, it is totally irrelevant to fathom out their motive in committing murder of him. It was further submitted that the prosecution has proved on the basis of medical evidence that Raghunath, Nima Bai and Sunny Bai had sustained injuries in the incident. As such they witnessed the entire evidence. It was further submitted that it is true that they are relative witnesses but it is well settled in law that relative witnesses will never shield a real accused particularly in heinous offence(s), and they will implicate a person(s) with whom they have enmity. In view of the aforesaid settled law, the evidence of the aforestated witnesses is reliable and trustworthy. It was further submitted that although there are contradictions and inconsistencies in the evidence of the injured persons yet the same are minor 18 Cr.A. Nos.415/2004 & 1059/2004 in nature. Therefore, their evidence cannot be discarded for the said reasons. After referring to the injuries sustained by Raghunath, it was further submitted that looking to the number of injuries on the vital part of his body, it is crystal clear that the accused persons made an attempt on his life. Thus, learned ASJ has rightly convicted the accused persons for an offence punishable under Section 307 read with 149 IPC in respect of the injuries caused by them to Raghunath. On the basis of the aforesaid arguments, learned Government Advocate supported the impugned judgment of convictions and order of sentences and prayed for dismissal of the appeals being devoid of merits and substance.
12. We have considered earnestly the rival submissions canvassed at the Bar and perused the impugned judgment and material on record.
13. First point for our consideration is whether deceased Gungun suffered a homicidal death? In this respect, the medical evidence of Dr. R.C. Agrawal (PW/8) is on record. He has deposed that on 04.06.2002 at about 10:00 am, he conducted post-mortem on the dead body of deceased Gungun @ Sudama in Civil Hospital Khurai. He had noticed 19 Cr.A. Nos.415/2004 & 1059/2004 following injuries on his dead body.
External Injuries:
(I) A lacerated wound size 7cm x 2cm bone deep on the occipital region of head where from brain matter had come out.
(ii) A heamatoma size 10cm x 4cm on the left parietal region of head.
(iii) A heamatoma size 10cm x 6cm on the pareito occipital region of head.
(iv) A heamatoma size 8cm x 2cm on the right parieto-frontal region of head.
Internal Injuries:-
Bones of the fronto-parietal and frontal-occipital regions were broken in pieces and internal layers of the skull got ruptured on account of which the brain-matter had come out of the rupture portions. The remaining internal organs were normal.
Dr. R.C. Agrawal has opined that deceased Gungun died of head injuries and shock 6 to 18 hours prior to the post-mortem examination. He has also proved post-mortem report Ex.P-20. On being cross-examined by the defence, he 20 Cr.A. Nos.415/2004 & 1059/2004 has admitted that he had not found any injury on the back of the deceased and all the injuries were on his head. There is nothing adverse in his cross-examination to disbelieve his evidence. However, he has not stated in specific words in his evidence that deceased Gungun had suffered a homicidal death. Moreover, it is not a case of defence that deceased Gungun had not died of homicidal death. Therefore, on the basis of injuries sustained by deceased Gungun on his head, we hold that he met with a homicidal death.
14. The second point for our consideration is whether on the basis of injuries sustained by Raghunath an offence under Section 307 IPC is made out? Dr. R.K. Patel (PW/7) had medico-legally examined him on 04.06.2002, the following day of the incident in the Civil Hospital Khurai. He had noticed following injuries on his person.
(I) A lacerated wound size 2cm x 1cm x 1cm on the right side of upper lip.
(ii) A lacerated wound size 2 ½ cm x 1cm, the left side of upper lip.
(iii) A lacerated wound size 3cm x 2cm x 1cm on the lower lip.
(iv) A lacerated wound size 2cm x 2cm x 1cm on the 21 Cr.A. Nos.415/2004 & 1059/2004 chin.
(v) A lacerated wound size 5cm x 1½ cm x ½ cm on the right side of head.
(vi) A contusion size 6 inch x 1½ inch on the right chest.
(vii) A contusion with swelling size 2 inch x 2 inch on the right upper arm.
(viii) A contusion size 3 inch x 1½ inch on the lower part of chest.
(ix) A contusion size 1 inch x 1 inch on the border of left hand.
(x) An abrasion size 1 inch x 1 inch on the left knee.
(xi) A contusion size 4 inch x 1½ inch on the left upper side of hand.
(xii) A contusion size 3 inch x 1½ inch on the left side of back.
Dr. R.K. Patel has opined that all the injuries were caused by hard and blunt object(s) within 12 hours prior to the examination by him. He has also stated that on account of injuries No.1 to 4 a few teeth and gums were damaged. Therefore, he had advised for examination of the said injuries by a dentist. He had advised for X-rays of Injuries 22 Cr.A. Nos.415/2004 & 1059/2004 No.1 to 7 and 9. He has stated that the remaining injuries were simple in nature. He had also referred to injured Rghunath for further treatment to the District Hospital Sagar. He has proved MLC report Ex.P-17 of Raghunath. In his cross-examination, he has admitted that none of the injuries sustained by Raghunath was caused by pointed object(s). The prosecution has not produced X-ray plates with the report of Radiologist as also the report of the dentist. Therefore, we hold that Raghunathh had sustained simple injuries in the incident. In the case of Girija Shankar Vs. State of U.P., AIR 2004 SC 1808, the Supreme Court held that in order to justify a conviction under Section 307 IPC, it is not essential that a bodily injury capable of causing death in ordinary course of nature should have been inflicted, the Court has to see whether the act irrespective of its result was done with an intention or knowledge under the circumstances mentioned in the Section and that it is sufficient in law if there is an intention present coupled with some overacts in execution thereof. Considering the factual aspect of the present case, the number of injuries sustained by Raghunath in the incident and the types of weapons used in assaulting him, we hold that he was attacked with an 23 Cr.A. Nos.415/2004 & 1059/2004 intention to kill him, therefore, the offence under Section 307 IPC is made out. Therefore, the contention of the learned counsel for the accused persons in this respect is not acceptable.
15. The third point for our consideration is whether Nima Bai (PW/1) and Sunny Bai (PW/3) had sustained simple injuries? Dr. R.K. Patel (PW/7) has testified that he had medico-legally examined them on 04.06.2002 and noticed following injuries on their persons.
Nima Bai:-
(i) A lacerated wound size 4½ cm x ½ cm, on the left side of head.
(ii) A contusion size 4 inch x 1 inch, on the right hand shoulder.
Sunny Bai:-
One contusion size 3 inch x 1½ inch on the left thigh.
Dr. R.K. Patel has opined that the injuries sustained by Nima Bai were caused by hard and blunt object(s) and injury No.1 was simple in nature and for injury No.2, he had advised X-ray. He has further stated that the injury sustained by Sunny Bai was simple in nature and it was caused by 24 Cr.A. Nos.415/2004 & 1059/2004 hard and blunt object. They had sustained injuries 12 hours prior to their medico-legal examinations by him. He has proved that he has given MLC reports Ex.P-18 and Ex.P-19 of Nima Bai and Sunny Bai respectively. In the cross- examination, he has admitted that the injuries sustained by Nima Bai and Sunny Bai had not been caused by any pointed object. Since prosecution has not produced the X- ray plate and the report of the Radiologist regarding the injury No.2 of Nima Bai, we hold that her injury No.2 was also simple in nature. There is nothing adverse in his cross- examination to discredit the evidence of Dr. R.K. Patel. We, therefore, hold that Nima Bai and Sunny Bai had sustained simple injuries.
16. Now the fourth and the last point for our consideration is whether the accused persons murdered deceased Gungun, made an attempt to murder Raghunath (PW/2) and caused simple injuries to Nima Bai (PW/1) and Sunny Bai (PW/3) in furtherance of common object having been members of an unlawful assembly at the place of occurrence on 03.06.2002 at about 7:00 to 8:30 pm?
17. Darau (PW/4), the father of deceased Gungun @ Sudama, has stated that he is a resident of village Ujanate. 25
Cr.A. Nos.415/2004 & 1059/2004 The distance between village Ujanate and village Birkhedi, the place of offence, is about 2 km. On the night of the incident at about 8:00 pm, he heard in village Ujanate that deceased Gungun and Raghunath were beaten in village Birkhedi. Thereupon, he and other persons had gone to village Birkhedi, where they saw deceased Gungun lying dead in front of the house of one Kalyan. Dasrath (PW/10), the father of Raghunath, has admitted in paras 6 and 12 of his evidence that he had not witnessed the assaults on Raghunath and deceased Gungun. Nima Bai and Sunny Bai narrated about the incident to him. From the aforesaid evidence of Darau and Dasrath, we hold that they are not eye-witnesses to the incident. Therefore, their evidence falls in the category of hearsay evidence. Consequently, their evidence has no evidentiary value.
18. Rajo Bai (PW/11), the sister of Raghunath, has stated that she lives with her parents and Raghunath in village Ujanate. She and her sister Sunny Bai had gone in search of Raghunath in village Birkhedi in the evening of the date of incident as he had not arrived till the late evening. There she saw the accused persons assaulting deceased Gungun and Raghunath. She has also stated that in order to save 26 Cr.A. Nos.415/2004 & 1059/2004 Raghunath from being further attacked by the accused persons, they kept him on chaff and covered his body with cow-dung. However, Sunny Bai and Nima Bai have not corroborated her said evidence. She has not given the satisfactory explanation in para 17 of her cross-examination as to why she had not mentioned in her case diary statement Ex.D-6 that she and her sister Sunny Bai both together went to village Birkhedi in the night of the incident in search of Raghunath. Nima Bai has not stated the presence of Rajo Bai at the time of incident. However, she has stated that she came after the incident. In the light of aforesaid evidence, we hold that Rajo Bai is not an eye-witness to the incident.
19. Now the prosecution case rests with the evidence of Nima Bai (PW/1), Raghunath (PW/2), Sunny Bai (PW/3) and Rukman Bai (PW/12). Nima Bai in para 12 of her evidence has admitted that Rukman Bai is her real sister. Upon the combined reading of evidence appearing in paras 4 and 12 of Rukman Bai and paras 11 and 15 of Raghunath, it appears that Rukman Bai had marital life of near about 10 to 15 years with Dasrath (PW/10) and due to subsistence of her marital life with him, she gave birth to Raghunath and 27 Cr.A. Nos.415/2004 & 1059/2004 Babloo. Thus, Raghunath and Babloo are her real sons. Later, Rukman Bai deserted Dasrath and started living with one Uttam. Thereafter, Dasrath married Gopi Bai, and she gave birth to Rajo Bai and Sunny Bai with his cohabitation. Thus, the aforesaid witnesses are in close relations to one another either by blood or uterine.
20. Raghunath in para 8 of his cross-examination has admitted that his mother Rukman Bai had faced the trial for committing murder of her so called husband Uttam. In the trial, Gorelal, the father of accused Dhuman and Ghasite, gave evidence in support of the prosecution, and the trial Court sentenced her with life imprisonment and her appeal is pending before the High Court. Raghunath has also admitted in para 4 of his cross-examination that he and his brother Babloo have enmity with accused Dhuman and Ghasite. Sunny Bai in para 8 and Darau in para 3 have stated that accused Dhuman had beaten Babloo. Thereafter, Babloo gave a beating to accused Dhuman and that they are facing trials against each other. From the aforesaid evidence, it is crystal clear that there has been animosity between the aforesaid witnesses and the accused persons prior to the present incident.
28
Cr.A. Nos.415/2004 & 1059/2004
21. In view of the discussions made in paras 19 and 20, we have to critically examine the evidence of aforestated witnesses before placing reliance upon their evidence because it is a matter of common experience that a tendency has been growing fast in the complainant party to rope in a criminal case all the family members of the accused party. Moreover, the Investigating Officer normally does not investigate to ascertain whether all the named accused persons have committed the alleged crime or few of them. In the present case there is a deep rooted enmity between the complainant party and the accused party, that the accused persons are close members of the family and that the prosecution has not examined any independent eye- witness, therefore, the close scrutiny of their evidence has become all the more necessary to eliminate the possibility of a false implication of any accused in the case.
22. Nima Bai (PW/1) has deposed that she is a resident of village Birkhedi. She knows all the accused person by their names and faces, and she also knows deceased Gungun, Raghunath and Sunny Bai. On the evening of the date of incident, Raghunath and deceased Gungun came from their native village Ujanate to her village because Raghunath 29 Cr.A. Nos.415/2004 & 1059/2004 wanted to hire a tractor for ploughing his agricultural land. In the late evening, she was returning to her house after doing a manual job. When she reached in front of house of Kalyan, she saw accused Asharam with Sang, accused Dhuman with Datua, accused Ghasite with Lathi, Dhannu, the son of accused Ghasite, with Lathi, Sukhram, the son of accused Dhuman, with Lathi and accused Sumatrani and Gajrani with Lathis assaulting deceased Gungun. Accused Dhuman inflicted blows of Datua on the head of deceased Gungun, accused Asharam pierced Sang into his shoulder, accused Ghasite inflicted blows of Lathi on him. As a result, deceased Gungun fell down. In the meantime, Sunny Bai and Raghunath came to the place of occurrence. Sunny Bai made an attempt to save deceased Gungun. Thereupon, accused Asharam gave a blow of lathi on her thigh. When she came to the rescue of deceased Gungun, accused Dhuman and Asharam gave her blows of Lathis causing injuries on her head and shoulder. Accused Dhuman inflicted blows of Datua to Raghunath. As a result, he sustained injuries in his mouth. He also fell down. Thereafter, accused Asharam with Lathi and other accused persons with Lathis assaulted him. Deceased Gungun died on the spot. After 30 Cr.A. Nos.415/2004 & 1059/2004 committing the offence, the accused persons left the place of occurrence. It be noted that in para 20 of the cross- examination, she has stated that at the time of incident in the place of occurrence street lights were on.
23. Upon the perusal of evidence of Nima Bai, we find that she has stated that accused Asharam assaulted with Sang and Lathi both whereas as per FIR, which is lodged by her, he had a Sang with him at the time of incident. She has stated in para 7 of her evidence that one end of a Sang is pointed and the other end has a handle made of iron to hold it, and it is used for killing pigs. She has stated in the said para that accused Asharam pierced pointed end of it into the shoulder of deceased Gungun, whereas autopsy surgeon Dr. R.C. Agrwal (PW/8) had stated in his evidence that he had seen all the injuries on his head. She has stated in para 8 of her evidence that accused Asharam gave a blow of Lathi on the head of Sunny Bai, whereas as per the evidence of Dr. R.K. Patel, she had sustained only one injury on her left thigh, which was caused by hard and blunt object. She has stated that accused Asharam assaulted her with Lathi, as a result he sustained injuries on his shoulder. As per the FIR lodged by her and her evidence accused 31 Cr.A. Nos.415/2004 & 1059/2004 Asharam was with Sang, and she has not deposed that in the course of incident accused Asharam took Lathi from any of the accused persons and assaulted her with it. In view of the aforesaid, we find that Nima Bai has given contradictory evidence with regard to the role of accused Asharam in the incident. Therefore, we hold that the presence of accused Asharam at the time of occurrence is highly doubtful.
24. Nima Bai has given a general statement that accused Sumatrai and Gajrani assaulted with Lathis to deceased Gungun and Raghunath without specifying their overacts. Therefore, we find unsafe to place the reliance upon her evidence in respect of the said accused persons.
25. Nima Bai has stated in para 4 of her examination-in- chief that in the following morning of the incident, police came over to village Birkhedi, and the police took her and others to Police Station Khurai, where she lodged the FIR Ex.P-1. G.R. Ahirwar (PW/6) recorded the FIR. He has stated in paras 8 and 9 of his evidence that after recording the FIR at the instance of Nima Bai, he reached the place of occurrence. As per the evidence of Nima Bai, she is a illiterate woman. Therefore, it could be said that on account of some confusion, she has stated so. Therefore, her said 32 Cr.A. Nos.415/2004 & 1059/2004 evidence does not affect the prosecution case adversely.
26. Upon the aforesaid analysis of evidence of Nima Bai, we hold that her evidence is reliable to the extent that at the time of incident, accused Dhuman with Datua, accused Ghasite with Lathi and their sons with Lathis assaulted deceased Gungun, Raghunath, Sunny Bai and her.
27. Raghunath (PW/2) has deposed that he and his friend deceased Gungun are the residents of village Ujanate. He has got agricultural land in village Birkhedi. In the afternoon of the day of incident, he and deceased Gungun came over to village Birkhedi because he wanted to hire a tractor to get his agricultural land ploughed. First, he and deceased Gungun visited his Mausi Nima Bai. Deceased Gungun stayed there, and he alone went for the said purpose. At about 7:00 to 7:30 pm, he heard hullabaloo coming from the side of village Birkhedi. Thereupon, he went running to village Birkhedi. In front of Kalyan's house, he saw Gungun in the injured condition in a pool of blood and Nima Bai and Sunny Bai were with him. He also saw accused Dhuman with Datua, accused Asharam with Sang, accused Ghasite, Sumatrani, Gajrani and the sons of accused Dhuman and Ghasite, aged about 15 to 16 years, with Lathis. Upon the 33 Cr.A. Nos.415/2004 & 1059/2004 exhortation given by accused Dhuman, he was also assaulted by all the accused persons. Accused Dhuman gave blows of Datua on his head, as a result his head was lacerated. Accused Asharam inflicted blows of Sang on his mouth. Remaining accused persons hit him with Lathis. On account of injuries, he fell down. In the meantime, Rajo Bai also came. Short while later, he became unconscious. When people of his village came to know that he was assaulted in village Birkhedi, they took him to his house at village Ujanate. He has also stated that accused Dhuman and Ghasite bear enmity with him and his younger brother Babloo on account of which, they assaulted deceased Gungun and him.
28. In para 13 of cross-examination, Raghunath has stated that the police neither interrogated him nor recorded his case diary statement, whereas Investigating Officer, G.R. Ahirwar (PW/6) has stated that he recorded his case diary statement, which is a material contradiction and it has material bearing on his evidence. In the course of his cross- examination, the defence has confronted him with his case diary statement Ex.D-2 and he denied some portions of his statement. Thus, he has falsely stated that the police had 34 Cr.A. Nos.415/2004 & 1059/2004 not interrogated him. From the evidence appearing in his examination-in-chief, it is evident that he had not witnessed the accused persons assaulting deceased Gungun, Nima Bai and Sunny Bai. This fact, he has also admitted in para 6 of his cross-examination. Therefore, his evidence is only relevant on the point which accused assaulted him? He has stated in his examination-in-chief that accused Asharam gave blows of Sang in his mouth, whereas he has stated in the para 15 of his cross-examination that accused Asharam gave blows of rod on his head. Thus, his statement is self contradictory upon the weapon which accused Asharam had at the time of incident. As per his dying declaration Ex.D-3, he has stated therein that Imrat, the brother-in-law of accused Dhuman, assaulted him. In para 16 of his cross- examination, he has not given a satisfactory explanation as to why he has not mentioned in his dying declaration the name of accused Asharam. There is no evidence at all on record that Imrat and accused Asharam are one and the same person. In para 16 of his evidence, it has been challenged by the defence that accused Asharam was not present at the time of incident. In view of the self- contradictory statements made by this witness, we hold that 35 Cr.A. Nos.415/2004 & 1059/2004 his evidence is not reliable and trustworthy with regard to accused Asharam. This witness has stated in his examination-in-chief that the remaining accused persons assaulted him with Lathis, whereas he has stated in paras 12 and 13 of his cross-examination that the sons of Dhuman and Ghasite had assaulted him with Lathis. He has made a general and vague statement that accused Sumatrani and Gajrani assaulted him with Lathis. Hence his evidence is not inspiring in respect of these two women accused. From the aforesaid critical analysis of evidence of Raghunath, we hold that his evidence is reliable only to the extent that accused Dhuman with Datua and accused Ghasite with Lathi assaulted him along with their juvenile sons.
29. Sunny Bai (PW/3) has deposed that her brother Raghunath and deceased Gungun were friends. On the date of incident, Raghunath and deceased Gungun came over to village Birkhedi from Ujanate. When he did not return till late evening, she, Nima Bai and deceased Gungun went in search of Raghunath. She and Nima Bai were some paces behind deceased Gungun. In front of the house of Kalyan, accused Dhuman gave blows of Datua on the head of 36 Cr.A. Nos.415/2004 & 1059/2004 deceased Gungun and accused Asharam hit him with Sang. As a result, he fell down. Thereupon, accused Ghasite, Sumatrni and Gajrani and their two sons assaulted him with Lathis. She and Nima Bai went to rescue him. Thereupon Asharam gave a blow of Lathi on her head, and he also struck a blow of Sang to Nima Bai. Meanwhile, Raghunath came to the place of occurrence. Thereupon, accused Dhuman gave blows of Datua in his mouth and accused Asharam hit on his head with Sang. The remaining accused persons assaulted Raghunath with Lathis. Deceased Gungun died on the spot and Raghunath became unconscious.
30. Sunny Bai has stated in her examination-in-chief that accused Asharam gave a blow of Lathi on his head, whereas in para 15 of her cross-examination, she has stated that accused Ashram gave a blow of Lathi on her foot. Sunny Bai in her examination-in-chief has stated that accused Asharam assaulted Nima Bai with Sang, whereas Nima Bai in para 4 of her evidence has stated that accused Dhuman and Asharam assaulted her with Lathis. Sunny Bai has stated in para 14 of her cross-examination that accused Asharam gave 3 to 4 blows of Sang to deceased Gungun towards the 37 Cr.A. Nos.415/2004 & 1059/2004 pointed end of it with full force. However, autopsy surgeon Dr. R.C. Agrawal (PW/8) has stated that deceased Gungun sustained in all four injuries and they were on his head. Moreover, Sunny Bai has failed to explain why she has not mentioned this fact in her case diary statement Ex.D-3. In view of the aforesaid material contradictory evidence, we find her evidence unreliable and untrustworthy in respect of accused Asharam. Sunny Bai has given a general statement that accused Sumatrani and Gajrani also assaulted deceased Gungun and Raghunath without attributing their overacts. For the said reasons, we hold that her evidence with regard to accused Sumatrani and Gajrani is also not reliable and credible. However, her evidence is fully reliable on the point that accused Dhuman with Datua and accused Ghasite with Lathi assaulted deceased Gungun and Raghunath because her evidence in this respect is fully consistent with the evidence of Nima Bai and Raghunath and is in agreement with the medical evidence on record.
31. Rukman Bai (PW/12) has deposed that in the evening of the date of incident at about 5:00 to 6:00 pm, she was in her house at village Birkhedi. He heard loud ruckus coming from the side of Kalyan's house. Thereupon, she went 38 Cr.A. Nos.415/2004 & 1059/2004 running towards his house. She saw accused Asharam with Sang, accused Dhuman with Datua, accused Ghasite, Sumatrani and Gajrani, accused Dhuman's son Dhannu and accused Ghasite's son Sukhram with Lathis assaulting deceased Gungun and Raghunath. He could not see injuries on the person of deceased Gungun. However, he saw injuries on Raghunath's head and mouth. When Nima Bai and Sunny Bai came to their rescue, accused Dhuman gave a Lathi blow on the head of Nima Bai and accused Asharam gave a blow of Sang on the foot of Sunny Bai. Seeing her, the accused persons ran towards her to assault her. Thereupon, she went running to her house.
32. Rukman Bai has stated in her examination-in-chief that at the time of incident she was in her house, whereas Sunny Bai in para 11 of her evidence stated that at the time of incident, Rukman Bai was in the house of Omkar Maharaj which is near to the house of Kalyan. Thus, there is contradictory evidence on the point wherefrom Rukman Bai reached the place of incident. She has stated in para 7 of her cross-examination that she has no blood relation with Nima Bai, whereas Nima Bai has stated in para 12 of her cross-examination that Rukman Bai is her real sister. She 39 Cr.A. Nos.415/2004 & 1059/2004 has denied in paras 9 and 15 of her evidence that Gorelal, the father of accused Dhuman and Ghasite, gave evidence against her in a murder trial which she had faced on the charge of committing murder of her so called husband Uttam and in the trial she was convicted and sentenced for life imprisonment. But her son Raghunath in para 8 of his cross- examination has admitted the said facts. Rukman Bai in para 4 of her cross-examination has denied that Raghunath and Babloo are her real sons, but upon grueling cross- examination by defence, she has to admit that they are her real sons. From the aforesaid evidence, we find that she has blatantly lied. As per the evidence on record, Nima Bai and Sunny Bai came to the rescue of deceased Gungun and Raghunath and in the course of which they sustained injuries, but Rukman Bai ran away. Her said conduct is surprising which proves that she has not witnessed the incident and there is a strong possibility that she has given evidence against the accused persons because Gorelal had testified against her in the said murder trial. From the aforesaid critical analysis of evidence of Rukman Bai, we hold that her evidence is wholly unreliable and untrustworthy.
33. It has come in the evidence of Nima Bai, Raghunath 40 Cr.A. Nos.415/2004 & 1059/2004 and Sunny Bai that Kalyan, his family members and other villagers gathered at the place of occurrence and they witnessed the incident. However, the prosecution has not examined any independent witness. Investigating Officer G.R. Ahirwar (PW/6) has stated in paras 12 and 13 of his cross-examination that he had made efforts to record the case diary statements of persons who had witnessed the incident but none of them were ready to record their statements. In view of his said statements, we hold that the prosecution case is not adversely affected because of the non-examination of any independent witness. Moreover, it is settled law that conviction can be based upon the evidence of relative witnesses in heinous crime because they would not shield the real culprit(s) and would falsely implicate a person(s) with whom they bear enmity. From the full scanning of evidence of Nima Bai, Raghunath and Sunny Bai, we hold that their evidence is reliable to the extent that accused Dhuman and Ghasite murdered deceased Gungun, they made an attempt to murder Raghunath and they caused simple injuries to Nima Bai and Sunny Bai.
34. As per the unexhibited FSL report, no blood stains were found on the articles namely Sang, iron rod and Lathis. 41
Cr.A. Nos.415/2004 & 1059/2004 However, blood stains were found on one Lathi marked as "E" but the tests remained inconclusive because of the disintegration of blood. In view of the negative FSL report, the accused persons cannot be connected with the crime. However, the prosecution case is not affected adversely because of eye-witness account.
35. From the aforesaid close analysis of evidence on record, we come to the ultimate conclusion that the prosecution has utterly failed to prove beyond reasonable doubt that all the five accused persons had formed an unlawful assembly in furtherance of common object to commit murder of deceased Gungun, to make an attempt on the life of Raghunath and to cause simple injuries to Nima Bai and Sunny Bai. However, the prosecution has proved beyond reasonable doubt that accused Dhuman and accused Ghasite having formed a common intention, murdered deceased Gungun, made an attempt to murder Raghunath and caused simple injuries to Nima Bai and Sunny Bai. In the cases of Kacheru Singh Vs. State of U.P., AIR 1956 SC 546, Vharwad Mepa Vs. State of Bombey, AIR 1960 SC 289 and Alma Vs. State of M.P., AIR 1991 SC 1519, the Supreme Court has held that if the unlawful 42 Cr.A. Nos.415/2004 & 1059/2004 assembly is not proved in respect of the crime, but the common intention of committing crime is proved against some of them, they may be convicted with the aid of Section 34 IPC. Therefore, we convict accused Dhuman and Ghasite under Sections 302 read with 34, 307 read with 34 and 323 read with 34 (two counts) IPC with the same sentences as passed on them by the learned ASJ.
36. In the result, we dispose of both the appeals as follows:-
(1) Criminal Appeal No.415/2004 is allowed and the convictions and sentences recorded against accused-appellant Asharam are set aside. He is acquitted of the offences punishable under Sections 147, 148, 302 read with 149, 307 read with 149 and 323 read with 149 (two counts) IPC.
As per the record, he has been undergoing the jail sentence. The Jail Authorities concerned are ordered to release him forthwith if his custody is not required in any other case.
(2) Criminal Appeal No.1059/2004 is allowed in parts. The convictions and sentences imposed on accused-appellants Sumatrani and Gajrani 43 Cr.A. Nos.415/2004 & 1059/2004 are set aside and they are acquitted of the offences punishable under Sections 147, 148, 302 read with 149, 307 read with 149 and 323 read with 149 (two counts) IPC. As per the record, they are on bail vide order dated 20.09.2004 of this Court. Their bail-bonds stand cancelled.
(3) Accused-appellants Dhuman and Ghasite are acquitted of the offences punishable under Sections 147 and 148 IPC setting aside the convictions and sentences thereunder. However, they are convicted under Section 302 read with 34, 307 read with 34 and 323 read with 34 (two counts) with the same sentences as imposed upon them by the learned ASJ in place of Section 302 read with 149, 307 read with 149 and 323 read with 149 IPC.
37. A copy of this judgment be retained in Criminal Appeal No.1059/2004.
(S.K. Seth) (Rajendra Mahajan)
Judge Judge
SS