Madhya Pradesh High Court
Jamu & Ors. vs The State Of M.P. on 4 September, 2015
Author: P.K. Jaiswal
Bench: D.K. Paliwal, P.K. Jaiswal
1
CRA No.432/2004
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B.: Hon'ble Shri P.K. Jaiswal
Hon'ble Shri D.K. Paliwal, JJ.
Criminal Appeal No.432/2004
Jamu s/o Badiya
Nahariya s/o Makana
Babu s/o Makana
Gor Singh s/o Badiya
Versus
The State of Madhya Pradesh
*****
Ms. Sonali Gupta, learned counsel for the appellants.
Shri Deepak Rawal, learned Deputy Advocate General for the
respondent / State.
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JUDGMENT
(Pronounced on this 4th day of September, 2015) Per P.K. Jaiswal, J.
Appellant No.1 Jamu s/o Badiya and appellant No.3 Babu s/o Makana have been convicted under Section 302 of the Indian Penal Code, 1860; appellant No.2 Nahariya s/o Makana and appellant No.4 Gor Singh s/o Badiya have been convicted under Section 302 read with Section 34 of the Indian Penal Code, 1860 for committing murder of deceased Devi Singh by the 2nd Additional Sessions Judge, Jhabua vide judgment dated 31st March, 2004 in Sessions Trial No.144/1994 and each of them has been sentenced to undergo Life Imprisonment with fine of Rs.500/-; in default of payment of fine, to suffer additional four months rigorous imprisonment. They have also been convicted for committing offence punishable under Section 397 of the Indian Penal 2 CRA No.432/2004 Code, 1860 and each of them has been sentenced to undergo seven-seven years rigorous imprisonment with fine of Rs.400/-; in default of payment fine, they have been further directed to undergo two months rigorous imprisonment.
2. According to the prosecution, on 13.03.1994 at about 06.00 in the evening, when Devi Singh, after selling gram (puk) to Maran Seth for a consideration of Rs.600/- and when he was returning to his house, at village Balwasa, near the house of Ramji Bhuriya Bhil, appellant No.1 Jamu s/o Badiya Bhil, appellant No.4 Gor Singh s/o Badiya Bhil, appellant No.2 Nahariya s/o Makana Bhil and appellant No.3 Babu s/o Makana armed with stick, arrow & bow and stone were waiting for him and when Devi Singh reached in front of them, appellant No.1 Jamu s/o Badiya Bhil, who was armed with arrow & bow, inflicted arrow injury on vital part of his body and also snatched Rs.600/- from him. When complainant Jamu s/o Chatara Damor Bhil (PW-2) and Dungar Singh came there, all the four accused run away. Complainant Jamu s/o Chatara Damor Bhil (brother of deceased) leaving Devi Singh (deceased) there along with Dungar Singh, rushed to his house and narrated the incident to his brother Aduriya, Sama s/o Man Singh, Magan s/o Arjun, Puniya s/o Vesta and Babu s/o Chatara. They all rushed to the place of occurrence and along with injured Devi Singh reached to the police station; Dungar Singh removed arrow from the body of Devi Singh; report of the incident was lodged under Sections 307, 394 and 397 of the Indian Penal Code, 1860 vide Crime No.29/1994 Ex.P/12 by Jamu s/o Chatara Damor Bhil (PW-2). During investigation, crime details form, spot map, 3 CRA No.432/2004 blood stained earth & plain earth from the place of occurrence was collected and accused persons were arrested. On the basis of memorandums of the accused persons, looted cash amounting to Rs.600/- was recovered from them. The deceased Devi Singh succumbed to injury on 15.03.1994. After his death, offence under Section 302 of the Indian Penal Code, 1860 was also added. The Investing Officer, after investigating the matter filed charge sheet before the Judicial Magistrate First Class, Thandla, District Jhabua, who committed the matter to the Sessions Judge and from Sessions Judge, the matter has been transferred to 2nd Additional Sessions Judge, Jhabua. During treatment, dying declaration of the deceased was recorded on 14.03.1994 vide Ex.P/25. As per dying declaration, injury of arrow has been caused by appellant No.1 Jamu s/o Badiya. At the time of occurrence, Makana s/o Sisco was also present. As per the dying declaration, when appellant No.1 Jamu had caused arrow injury, all other three co-accused persons were present. It has also been stated by the deceased that Makana caused stone injury, but as per postmortem report, no stone injury has been found.
3. Learned counsel for the appellants did not challenge the fact of homicidal death of the deceased as also the fact that appellant No.1 Jamu s/o Badiya gave one arrow blow to the deceased on his stomach while the other appellants Nahariya s/o Makana, Babu s/o Makana and Gor Singh s/o Badiya were present along with appellant No.1 Jamu s/o Badiya. She, however, contended that there was no common intention on the part of appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor 4 CRA No.432/2004 Singh s/o Badiya to cause death of the deceased. According to her, accused / appellant No.1 Jamu s/o Badiya could be convicted under Section 304 Part II of the Indian Penal Code, 1860, while other appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya could be held guilty only under Section 392 of the Indian Penal Code, 1860, because at the time of robbery, they were not having any deadly weapon nor they used any deadly weapons in committing the crime. It is also submitted that appellant No.1 Jamu s/o Badiya has completed more than eleven years' of jail sentence, whereas appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya have completed two years' jail sentence, out of total jail sentence awarded by the learned trial Court.
4. It is further pointed out that except one stomach injury, no other injuries were found on the person of the deceased. She placed reliance on the decision of the Apex Court in the case of Phool Kumar v. Delhi Administration reported in AIR 1975 SC 905, wherein the Apex Court was of the opinion that participation of the appellant therein in the commission of the robbery at the petrol pump was proved beyond any reasonable doubt, but only when one accused used deadly weapon, then for another co-accused persons, Section 397 of the Indian Penal Code, 1860 cannot be attracted.
5. Her further contention is that appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya have completed two years jail sentence and in view of the Division Bench decision of this 5 CRA No.432/2004 Court in the case of Gaurishankar s/o Takhta Singh & 7 others v. State of Madhya Pradesh dated 6th November, 2008 passed in Criminal Appeal No.1162/2002, conviction of appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya be altered from section 397 to Section 392 of the Indian Penal Code, 1860 and the jail sentence of seven years rigorous imprisonment be reduced to two years rigorous imprisonment. With the aforesaid, she prays that criminal appeal in question be allowed in part.
6. Per contra, learned Deputy Advocate General has drawn our attention to dying declaration Ex.P/25, statement of PW-3 Pujiya & PW-4 Akil Mehta and submitted that as per the statement of eye witness PW-2 Jamu s/o Chatara, brother of the deceased, appellant No.1 Jamu s/o Badiya was armed with bow and arrow and caused fatal injury to the deceased along with appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya with the common intention to commit robbery and learned trial Court has rightly convicted appellant No.1 Jamu s/o Badiya and appellant No.3 Babu s/o Makana under Section 302 of the Indian Penal Code, 1860 and appellant No.2 Nahariya s/o Makana and appellant No.4 Gor Singh s/o Badiya under Section 302 read with Section 34 of the Indian Penal Code, 1860 and prays for dismissal of the criminal appeal.
7. As per the dying declaration Ex.P/25, appellant No.1 Jamu s/o Badiya was armed with bow and arrow and inflicted arrow injury to the deceased. At the time of occurrence appellant No.2 Nahariya s/o Makana, appellant 6 CRA No.432/2004 No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya were present along with appellant No.1 Jamu, but no overt act has been attributed to them nor there is any material that they with the common intention to commit robbery having any deadly weapon with them nor snatched money from pocket of the deceased Devi Singh nor inflicted any injury to him. As per the dying declaration, stone injury was caused by Makana s/o Sisco, but he was not implicated by the Police nor any challan has been filed against him. As per the certificate of the doctor at the time of dying declaration, the deceased Devi Singh was in fit state of mind. Out of total eleven prosecution witnesses only PW-2 Jamu (sole eye witness of the case) supported the case of the prosecution ; PW-3 Pujiya is a hearsay witness; PW-4 Alik Mehta, is the Investigating Officer; PW-5 Khurshid is a formal witness; PW- 8 Galla, PW-9 Magan and PW-11 Jagdish are the hostile witnesses and they did not support the case of the prosecution; PW-6 Balwant Singh Bariya is the Patwari, who prepared spot map Ex.P/17; PW-7 Sushilchandra Pathak has prepared inquest; whereas PW-10 Dr. K.K. Chaturvedi is the autopsy surgeon, who conducted the postmortem of the deceased. As per the postmortem report Ex.P/21, the deceased sustained the following injury: -
"Stab wound present on left side of chest at 9-10 Rib space. Lung tissue of lower lobe of left lung. Stab wound of size 3 cm x 2 cm x 4 cm deep. Filled with clotted blood. Spleen was having stab wound of size 4 cm x 3 cm x 2 cm with clotted blood. Left colonic flexure was stabbed of size 2 cm x 1 cm with prolapse omentum from the wound."
8. PW-10 Dr. K.K. Chaturvedi in his court statement 7 CRA No.432/2004 has very categorically admitted that dying declaration Ex.P/15 has been recorded and before dying declaration, the deceased was examined by him and at that relevant point of time, he was in a fit state of mind (paragraphs No.14 and 15). In the opinion of the doctor, the cause of death is injury to vital organs lungs, spleen and colon.
9. The impugned conviction is based mainly on the first information report Ex.P/12 lodged by PW-2 Jamu, brother of the deceased and dying declaration of the deceased Ex.P/25. From the statement of Dr. K.K. Chaturvedi (PW-10) and Akil Mehta (PW-4), there could be no dispute with the legal position that dying declaration is genuine and the cause of death disclosed by the deceased would fall within Clause (2) of Section 32 of the Indian Evidence Act, 1872.
10. In the instant case, we find ourselves in full agreement with the learned trial Court that the report lodged by PW-2 Jamu, brother of the deceased, inspires confidence and there is nothing absolutely on record to entertain any kind of doubt as to its genuineness and dying declaration of the deceased. From the aforesaid, it is seen that out of four appellants, only appellant No.1 Jamu s/o Badiya, armed with bow and arrow and it is he, who committed robbery by snatching Rs.600/- from the pocket of the deceased; other co- accused persons (appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya) were present along with him, but they were not armed with any deadly weapon and participated in the crime nor any overt act is attributed to them. Appellant No.1 Jamu s/o Badiya gave one arrow injury on the stomach of the 8 CRA No.432/2004 deceased.
11. It is a case of single blow. Under the circumstances, it cannot be said that appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya, who were, of course, along with appellant No.1 Jamu s/o Badiya, had any common intention to cause death of the deceased. Appellant No.1 Jamu alone can further be attributed with the knowledge that the injury, which he had intended, was likely to cause death. Under these circumstances, accused appellant No.1 Jamu can be held guilty under Sections 397 and 304 Part-II of the Indian Penal Code, 1860 while other appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya could be held guilty only under Section 392 instead of Sections 397 and 302 of the Indian Penal Code, 1860. To this extent, the impugned conviction deserves to be modified.
12. As regards jail sentence, it is seen that appellant No.1 Jamu s/o Badiya has already suffered imprisonment for more than eleven years, while other appellants have already suffered imprisonment for more than two years. All this appears sufficient to meet the ends of justice.
13. Accordingly, Criminal Appeal No.432/2004 is allowed in part to the extent indicated above. The conviction of appellant No.1 Jamu s/o Badiya under Sections 302 and 397 of the Indian Penal Code, 1860 is converted into under Sections 304 Part-II and 392 of the Indian Penal Code, 1860. Till today, he has completed eleven years' jail sentence and under Sections 304 Part-II and 397 of the Indian Penal Code, 9 CRA No.432/2004 1860, his jail sentence is reduced to the period already undergone by him. His sentence with regard to fine amount shall remain unaltered.
14. Other three appellants i.e. appellant No.2 Nahariya s/o Makana, appellant No.3 Babu s/o Makana and appellant No.4 Gor Singh s/o Badiya are acquitted of the charge under Sections 302 (or 302/34) of the Indian Penal Code, 1860 and in stead under Section 397 of IPC, they are convicted under Section 392 of the Indian Penal Code, 1860. They have completed two years' jail sentence and, therefore, their jail sentence is reduced to the period already undergone by them under Section 392 of the Indian Penal Code, 1860. Their sentence with regard to fine amount shall remain unaltered.
15. Consequently, Criminal Appeal No.432/2004 is allowed in part.
Copy of this judgment be sent to the trial Judge.
(P.K. Jaiswal) (D.K. Paliwal)
Judge Judge
Pithawe RC