Madhya Pradesh High Court
Sukhlal (Died) And Another vs State Of M.P. on 27 October, 2017
Author: Sheel Nagu
Bench: Sheel Nagu
Cra.355/2000, Cra. 454/2000 and Cra.459/2000
1
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
PRESENT
DB:JUSTICE SHEEL NAGU
&
JUSTICE ASHOK KUMAR JOSHI
(Criminal Appeal No. 355/2000)
Nirbha & others
Vs.
State of Madhya Pradesh
Shri Atul Gupta, Advocate for the appellants.
Shri B.K.Sharma, Public Prosecutor for the respondent-State.
Connected with
(Criminal Appeal No. 454/2000)
Sukhlal & others
Vs.
State of Madhya Pradesh
Shri D.R.Sharma, Advocate for the appellants.
Shri B.K.Sharma, Public Prosecutor for the respondent-State.
And
(Criminal Appeal No. 459/2000)
Smt. Sampatbai
Vs.
State of Madhya Pradesh
Shri Rajmani Bansal, Advocate for the appellant.
Shri B.K.Sharma, Public Prosecutor for the respondent-State.
JUDGMENT
(Delivered on the 27th day of October,2017) Per Sheel Nagu, J.
The aforesaid three Criminal Appeals arise out of the impugned judgment and order of conviction and sentence dated dated 3/5/2000 Cra.355/2000, Cra. 454/2000 and Cra.459/2000 2 rendered in Special Sessions Trial No. 56/1999 by the Special Judge, Shivpuri (M.P.). Since the judgment and order challenged in these criminal appeals is one, all the appeals are herewith taken up together for disposal and decided by this common judgment.
2. At the very outset, it would be appropriate to point out that Criminal Appeal No.454/2000 was filed by three appellants namely, Sukhlal, Harcharan and Ajay Singh. During pendency of the said appeal, appellants Sukhlal and Harcharan expired and therefore Cri.Appeal No. 454/2000 is being now prosecuted by sole appellant Ajay Singh. It is further relevant to mention here that two amongst the accused namely Devpal Lodhi and Ajab Singh absconded and could not be traced out.
3. Appellants Nirbha, Pistabai, Kamla, Thakurdas in Cri. Appeal No. 355/00, appellants Sukhlal, Harcharan and Ajay Singh in Cri. Appeal No. 454/00 and Smt. Sampatbai in Cri. Appeal No. 459/00 stood trial on the charges levelled against them before the trial court and accordingly they were convicted and sentenced as follows :-
(a) for the offence punishable under Section 148 of I.P.C., they were sentenced to suffer one-one year's rigorous imprisonment;
(b) for the offence punishable under Section 302/149 of I.P.C. for causing murder of Ajeeta in prosecution of their common object, and Sec. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities), Act, 1989, they were sentenced to suffer life imprisonment with a fine of Rs.5,000/- each and in default of payment of fine they were directed to suffer additional six-six months' rigorous imprisonment;
(c) for the offence punishable under Section 326/149 of I.P.C. for voluntarily causing grievous hurt with common intention to the injured, they were sentenced to suffer five-five year's rigorous imprisonment with a fine of Rs.1,000/- each, in default of payment of which they were Cra.355/2000, Cra. 454/2000 and Cra.459/2000 3 directed to suffer additional imprisonment of one month;
(d) for the offence punishable under Section 325/149 of I.P.C. for voluntarily causing grievous hurt to the injured with common intention, they were sentenced to suffer three-three years' rigorous imprisonment with a fine of Rs.1,000/- each, in default of payment of which they were directed to suffer additional imprisonment of one month;
(e) for the offence punishable under section 323/149 of I.P.C. for causing simple hurt to the injured with common intention, they were sentenced to suffer six-six months' rigorous imprisonment with a fine of Rs. 1,000/-, in default of payment of which they were directed to suffer additional imprisonment of one month.
3.1 The trial court further directed that out of total fine amount of Rs. 64,000/- deposited by the appellant under the impugned judgment, Rs. 40,000/- be paid as compensation to the wife of the deceased Ajeeta under Sec. 357 Cr.P.C.
4. Heard the learned counsel appearing for the rival parties and also perused the judgment and the evidence on record.
5. The prosecution story in brief is that at about 4 p.m. on 15/3/99 Virdha (PW-1) alongwith his daughter Imratibai, Savitribai, sister Kalibai, Suniyabai, Gyasobai, mother-in-law Sonabai, wife Runiabai and sister-in-law Shantibai was harvesting the wheat crop at village Bamhari, P.S. Dinara. Deceased Ajeeta was also present. It is alleged that at that moment, all the accused alongwith Devpal and Ajab Singh wielding lathi, luhangi, Farsa, Kulhadi and country-made pistols arrived at the scene of the crime and started abusing Virdha (PW-1) and his family members. On being objected to, accused Devpal (absconded accused) fired with his country-made pistol resulting in deceased Ajeeta sustaining gunshot injury at the back and dying on the spot. Shantibai, Bhuniabai, Runiabai, Imratibai, Kalibai, GyasobaI, Savitribai and Sonabai rushed to the rescue when the accused assaulted and injured them. Thereafter, Mathura (brother Cra.355/2000, Cra. 454/2000 and Cra.459/2000 4 of the deceased Ajeeta) and Ramdeen Jatav also came to the scene of the crime when the accused fled away. FIR was lodged by Virdha (PW-1) vide Ex.P/1 at 6 p.m. on the same day where the said incident was reported and old property dispute was assigned as the motive behind the crime. The necessary formalities of investigation were completed by the police which included panchnama of dead- body, seizure of the plain and blood-stained soil, arrest of the accused and recovery of the offending weapons based on disclosure statements. The investigation was conducted by SDO (P) Karera who sent the seized items for chemical analysis to FSL, Sagar but the forensic report was not obtained. After completion of investigation charge-sheet was filed against all the 11 accused (including four appellants in Criminal Appeal No.355/00, one surviving appellant in Criminal Appeal No. 454/00 and sole appellant in Criminal Appeal No.459/00 except against Devpal and Ajab Singh who absconded and against whom perpetual warrants were issued.
5.1 The postmortem of the deceased was conducted by Dr. R.K.Goyal (PW-10) who prepared the postmortem report (Ex.P/3) finding the following injuries on the dead-body:-
"(i) Incised wound of size 8 cm. x 1/2 cm. x deep up to bone over the post aspect of head, occipital region, Rt. side obliquely placed.
(ii) Contusion of size 4 cm. x 2 cm. Over right side of head;
(iii) Lacerated wound of size 1 cm. x 1/2 cm. x skin deep over the right ankle left aspect;
(iv) Abrasion of size 1 cm x 1 cm. over the left knee anterior aspect.
(v) Lacerated wound of size 1 cm. x 1/2 cm. X skin deep over the left elbow posterior aspect.
(vi) Contusion of size 2 cm. x 2 cm. over the sup. Surface Cra.355/2000, Cra. 454/2000 and Cra.459/2000 5 and left shoulder.
(vii) Gunshot injury of entrance over the back at the level of T6, caused by pallets which found embedded in the bone and the lungs.
5.2 On internal examination of the dead-body, left lung was found to be in collapsed state. The autopsy surgeon opined the Injury No.
(i) to be caused by sharp-cutting weapon, Injury Nos. (ii) to (vi) by hard and blunt object while Injury No.(vii) by firearm. Injury No.(vii) was further opined to be sufficient in the ordinary course of nature to cause death.
5.3 Dr. Vinod Chaurasiya (PW-11) deposed that on 17/3/1999 at 6-55 p.m. he examined injured Pistabai aged 35 years (appellant No.2 in Cri. Appeal No. 355/00) and found as per MLC (Ex.P/4) one contusion of size 2 cm. X 1 cm. over dorsal aspect of left forearm, middle region. He further deposed that on clinical examination no external injury was seen.
5.4 Similarly on the same day injured Sampat Bai aged 35 years (appellant in Cri. Appeal No. 459/00) was examined by Dr. Vinod Chaurasiya (PW-11) who found as per MLC (Ex.P/5) one contusion of size 1 ½ cm. x ½ cm. over right side of face below right eye with reddish blue hue. He further deposed that on clinical examination no external injury was seen.
5.5 On 16/3/1999 injured Imarti (victim) w/o Parmanand aged 30 years was examined by Dr. Vinod Chaurasiya (PW-11), who found as per MLC (Ex.P/6) lacerated wound of size 1 cm. x ½ cm. x muscle deep over dorsal aspect of left lower leg. One contusion of size 2 cm. x 1 cm. over posterior aspect of right lower leg, middle region and one contusion of size 1 ½ cm. X 1 cm. over left scapular region. 5.6 On 16/3/1999 injured Kalibai (victim) w/o Kallu aged 40 years was examined by Dr. Vinod Chaurasiya (PW-11), who found vide MLC Cra.355/2000, Cra. 454/2000 and Cra.459/2000 6 (Ex.P/7) three lacerated wounds; first of size 3 cm. x ½ cm. x bone deep over right side of parietal region of skull, second of size 1 ½ cm. x ½ cm. x muscle deep over anterior aspect of left lower leg, middle region and third of size ½ cm. x ½ cm. x muscle deep over lateral aspect of right lower leg, lower 1/3 rd region. For injury sustained on right side of parietal region, the injured was referred for x-ray examination to the District Hospital, Shivpuri. 5.7 On 16/3/1999 injured Gyasobai (victim) w/o Parma aged 55 years was examined by Dr. Vinod Chaurasiya (PW-11), who found vide MLC (Ex.P/8) one contusion of size 3 cm x 1 cm over the left scapular region placed obliquely. One swelling of size 3 cm x 2 cm over posterior aspect of right lower leg middle region and one contusion of size ¼ cm x ¼ cm. over tip of little finger of left hand. For injury No.1 sustained on scapular region, x-ray examination was advised.
5.8 On 16/3/1999 injured Muniya (victim) w/o Halke aged 50 years was examined by Dr. Vinod Chaurasiya (PW-11), who as per MLC (Ex.P/9) found diffused swelling of size 4 cm x 3 cm over dorsal aspect of left forearm lower 1/3rd region. For this injury, x-ray examination was advised.
5.9 On 16/3/199 injured Runiabai w/o Virdha aged 35 years was examined by Dr. Vinod Chaurasiya (PW-11) who as per MLC (Ex.P/10) found lacerated wound with diffused swelling of size 1 cm x ½ cm x muscle deep with swelling of size 4 cm x 3 cm over dorsal aspect of left hand, lacerated wound of size 1 ½ cm. x ½ cm x muscle deep over dorsal aspect of right hand in between index finger and thumb, lacerated wound of size 2 ½ cm. x ½ cm x muscle deep over anterior part of left lower leg middle region, lacerated wound of size ½ cm x ¼ cm x muscle deep over lateral aspect of right lower leg and one abrasion of size ½ cm x ¼ cm over anterior aspect of Cra.355/2000, Cra. 454/2000 and Cra.459/2000 7 left knee. For the injuries sustained by this injured on left/right hand and left leg, x-ray examination was advised.
5.10 On 16/3/199 injured Shanti (victim) w/o Imrat aged 35 years was examined by Dr. Vinod Chaurasiya (PW-11) who vide MLC (Ex.P/11) found one incised wound of size 3 cm x ½ cm x bone deep over right side of parietal region of skull, lacerated wound with diffused swelling of size 2 cm x ½ cm x muscle deep with swelling of size 4 cm x 3 cm over posterior aspect of left elbow joint, multiple contusions of maximum size of 1 cm x 1 and ½ cm and minimum of 2 cm x ½ cm over both legs and posterior aspect of chest, one contusion of size 2 ½ cm x 1 cm over post aspect of left lower leg and lacerated wound of size 1 ½ cm x ½ cm x muscle deep over anterior aspect of right lower leg. For injuries sustained by the injured on right side of parietal region and left elbow joint, x-ray examination was advised.
5.11 On 16/3/199 injured Savitri (victim) daughter of Virtha aged 12 years was examined by Dr. Vinod Chaurasiya (PW-11) who vide MLC (Ex.P/12) found diffused swelling of size 3 cm x 2 cm over dorsal aspect of left forearm middle region, one contusion of size 1 ½ x ½ cm over dorsal aspect of right forearm middle region, one contusion of size 2 ½ cm x 1 cm over posterior aspect of left thigh lower 1/3 rd region, one contusion of size 1 ½ cm x 1 cm over posterior aspect of right lower leg middle region and multiple abrasions of maximum size 3 cm x 1 cm and minimum 1 ½ cm x ½ over both sides of posterior aspect of chest. For the injury sustained on dorsal aspect of left forearm x-ray examination was advised.
5.12 On 16/3/199 injured Sonabai (victim) w/o Bhagwandas aged 50 years was examined by Dr. Vinod Chaurasiya (PW-11) who vide MLC (Ex.P/13) found one lacerated wound of size ½ cm x ¼ cm x muscle deep over dorsal aspect of right forearm lower 1/3 rd region Cra.355/2000, Cra. 454/2000 and Cra.459/2000 8 and one contusion of size 1 ½ cm x 1 cm over dorsal aspect of left forearm middle region.
5.13 Dr. M.L.Agrawal (PW-12) carried out the radiological test on 20/3/1999 and found the following grievous injuries:-
Injured Nature of injury
Bhuniabai Fracture of lower half of left radius and ulna
vide Ex.P/15
Runiabai (i) Fracture of lower end of left radius and ulna
with multiple Ros (small) seen on hand
(ii) Fracture of 5th meta carpel upper end and
fracture of 1st phalanx of index finger of right hand vide Ex.P/16.
Shantibai Fracture of lower end of humerus bone vide Ex.P/18
8. The trial court after marshalling of the evidence, out of the 13 original accused (Devpal and Ajab Singh absconding) acquitted accused Jevanlal, Narayan Ju and Maharajsingh of the charge of murder but convicted appellants Nirbha, Pistabai, Kamla, Thakurdas in Cri. Appeal No. 355/00, appellants Sukhlal, Harcharan and Ajay Singh in Criminal Appeal No. 454/00 and sole appellant Sampatbai in Criminal Appeal No. 459/00 of the charge of murder punishable u/S. 302/149 and for causing grievous and minor hurt to the injured u/Ss. 326/149, 325/149, 323/149 I.P.C., and u/S. 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act and sentenced accordingly as mentioned above. Hence, these appeals.
9. Before adverting to the findings rendered by the trial court, the testimony of each of the injured eye-witnesses deserves consideration as follows :-
(i) PW-1 Virdha in his testimony disclosed that all the accused had collected since 6 a.m., on the fateful day at the house of Ajay Singh (sole surviving appellant in Cri.Appeal No.454/00), which was situated adjacent to the agricultural Cra.355/2000, Cra. 454/2000 and Cra.459/2000 9 field of Virdha (PW-1) where the incident took place. This witness further disclosed that all these accused consumed liquor cooked and ate food and when it was around 4 p.m. all the accused armed with different weapons came to the spot where the incident took place. This witness has categorically testified that the appellants Sampatbai and Pistabai had no weapon in their hands. PW-1 has unequivocally disclosed the presence of all the appellants at the time of incident by further stating that the absconded accused Devpal inflicted gunshot injury upon deceased Ajeeta with country-made pistol leading to the death of deceased on the spot while other absconded accused Ajab Singh inflicted injury with a pharsa on the neck of deceased.
This witness has denied the suggestion that any disclosure in his earlier statement or FIR was made regarding appellants having collected since 6 a.m. on 15/3/1999 at appellant Ajay's house situated adjacent to the field in which incident took place.
(ii) PW-2 Suniabai who is mother-in-law of PW-1 Virdha being an outsider (resident of Jhansi) stated that she was harvesting crop alongwith PW-1 Virdha and his family members and recognized only the absconded accused Devpal but none of the other accused since she permanently resides in District Jhansi. Although PW-2 states that number of other persons had come when the said absconded accused Devpal and other accused were involved in the act of abuse and assault and that the absconded accused Devpal inflicted firearm injury upon deceased Ajeeta who died on the spot. As regards injuries sustained by one self she disclosed of having sustained injury on her wrist which Cra.355/2000, Cra. 454/2000 and Cra.459/2000 10 according to her was inflicted by one of the assailants. PW-2 Suniabai further states that her accomplices Shantibai, Runiabai, Guniyabai, Gyasobai, Savitribai, Imratibai also sustained injuries. Certain omissions and contradictions were noticed between her earlier statement and the testimony recorded in the court of the said witness Suniabai (PW-2) but the trial court found that PW-2 Sunibai was present on the date of the incident and sustained injuries while being attacked by the appellants while she was harvesting crop of wheat and that the absconded accused Devpal had inflicted gunshot injury upon deceased Ajeeta which led to his death. PW-2 Suniabai further deposed that the incident took place in the agricultural field of Virdha (PW-
1).
(iii) PW-3 Muniabai, the sister of Virdha (PW-1) who was also an outsider being resident of Jhansi testified and disclosed about the same facts and circumstances which were revealed by PW-2 Suniabai.
(iv) PW-4 Runiabai states that she was present at the scene of the crime and she was harvesting the crop of wheat alongwith PW-1 Virdha and his family members. She states that apart from Jeevanlal, Narayan Ju and Maharajsingh, all the other accused (including the appellants herein in all the three criminal appeals) were among the assailants, who had accompanied the absconded accused Devpal and Ajab Singh and that the deceased died on the spot due to gunshot injury inflicted by Devpal. This witness further disclosed that she sustained injuries due to assault made by absconded accused Ajab Singh, Kamla, Nirbha, Sampatbai and Ajay Singh with the weapons like lathi, pharsa, axe etc. This Cra.355/2000, Cra. 454/2000 and Cra.459/2000 11 witness also states that there is long standing property dispute between the rival parties arising out of agricultural field where the incident took place. She also states that PW- 13 Mathura witnessed the incident.
(v) PW-5 Gyasobai who is an outsider being resident of Jhansi has testified and made disclosure in manner similar to that of PW-2 Suniabai and PW-3 Muniabai.
(vi) PW-6 Imratibai, daughter of the PW-1 Virdha who is also an outsider being resident of Jhansi, testified that she was harvesting the crop of wheat alongwith his father and other family members. She states that bedsides Jeevanlal, Narayan Ju and Maharaj Sngh all other appellants had come to the spot alongwith absconded accused Devpal who inflicted gunshot injury upon deceased Ajeeta and all these assailants caused injuries by assaulting the women family members of PW-1 Virdha. This witness as regards injury sustained by her, discloses that absconded accused Devpal inflicted an Axe blow on her left hand while appellant Kamla and Thakurdas (two of the appellants in Cri. Appeal No. 355/00) inflicted lathi blow on her. This witness further reveals that Ajay Singh (sole surviving appellant of Cri. Appeal No.454/00) was present at the scene of crime as one of the assailants. This witness lastly testified that the acquitted accused Jeevanlal, Narayan Ju and Maharaj Singh were not present at the scene of crime.
(vii) PW-7 Kalibai another sister of PW-1 Virdha is an outsider being resident of Jhansi, who also states that the acquitted accused Jeevanlal, Narayan Ju and Maharaj Singh were not present at the scene of the crime and also clarified that being outsider she did not know the assailants prior to Cra.355/2000, Cra. 454/2000 and Cra.459/2000 12 the incident. This witness has revealed that she was present at the scene of the crime and was harvesting the crop of wheat alongwith her brother Virdha (PW-1) and other family members when she saw absconded accused Devpal inflicting gunshot injury on the deceased who died on the spot. This witness further testified that sole appellant Sampatbai in Cri.Appeal No.459/00 and Pistabai one of the appellants in Cri.Appeal No. 355/00 were present at the scene of the crime. This witness further reveals that Nirbha/appellant in Cri. Appeal No. 355/00 alongwith Sampatbai assaulted all the injured women who were harvesting the crop. She has further stated that Nirbha did not cause any assault upon her.
(viii) PW-8 Shantibai who is an outsider belonging to the neighbouring village testified that she was harvesting wheat crop alongwith PW-1 Virdha and his relatives. She states that PW-1 Virdha is her brother-in-law (Behanoi) and she knows the appellants Sampatbai and Pistabai and she belongs to the neighbouring village and not to the village where the incident took place and therefore she does not know the other appellants but clarifies that she recognizes the absconded accused Devpal since prior to the incident and that it was Devpal who inflicted gunshot injury upon the deceased who died and that absconded accused Devpal and appellant Kamla inflicted injury on her.
(ix) PW-9 Savitribai another daughter of PW-1 Virdha states that she knows the appellants Sampatbai, Pistabai, Kamalbai, Nirbha and Thakurdas since before the incident but does not know other appellants. However, she states that she knew absconded accused Devpal and Ajab Singh Cra.355/2000, Cra. 454/2000 and Cra.459/2000 13 who were very much available and she witnessed the incident when she was harvesting the crop of wheat alongiwth PW-1 Virdha and other relatives. This witness states that 8 to 10 persons came to the spot and among whom the absconded accused Devpal inflicted gunshot injury to the deceased who died on the spot while appellant Kamla inflicted minor injury with an axe and appellants Thakurdas inflicted injury with lathi. Appellants Sampatbai also gave lathi blow and appellant Pistabai caused blow with the blunt side of a spade. She states that these accused also inflicted injuries to the persons harvesting the crop in the agricultural field alongwith PW-1 Virdha. This witness further reveals that appellant Kamla inflicted minor injury with an axe on her leg. She also reveals that the incident was witnessed by Ramdeen and Mathura.
(x) PW-13 Mathura who is brother of the deceased disclosed his presence at the scene of the crime where PW-1 Virdha and his relatives were present and harvesting the crop alongwith Ramdeen and Chandan when absconded accused Devpal caused gunshot injury upon deceased Ajeeta who died on the spot. The appellant Thakurdas, Nirbha, Samptatbai and Pistabai were stated to be present on the spot. Appellant Nirbha and as well as Thakurdas inflicted farsa blow on the deceased while appellants Pistabai and Sampatbai pelted stone on her and other women harvesting the crop alongwith PW-1 Virdha. This witness has denied suggestion that she alongiwth PW-1 Virdha and other injured witnesses has concocted the story to implicate the appellants.
(xi) PW-10 Dr. R.K.Goyal who conducted the postmortem Cra.355/2000, Cra. 454/2000 and Cra.459/2000 14 has proved the same by reiterating his opinion in the postmortem report by stating that out of all the injuries found on the body of the deceased, the cause of death was a result of excessive internal and external haemorrhage due to gunshot injury over the back region which corroborates the ocular version of the deceased being assaulted by absconded accused Devpal. The injuries No. (ii) to (vi) were caused by hard and blunt object while Injury No.(vii) was a firearm injury which was opined to be sufficient in the ordinary course of nature to cause death. Dr. Goyal (PW-10) accepted suggestion that the incised injury No.(i) can be caused by weapon such as Pharsa or Kulhadi. All the injuries were also stated to be antemortem in nature and caused within 24 hrs of the autopsy.
(xii) PW-11 Dr. Vinod Chaurasiya who had conducted examination of the 8 injured witnesses namely, Pistabai, Sampatbai, Imartibai, Kalli, Gyaso, Muniabai, Runia, Shanti, Savitri and Sona, proved MLCs prepared by him in regard to each of the injured persons while PW-12 Dr. M.L.Agrawal proved the radiological/x-ray examination of the grievous injures described above and sustained by injured Bhunia, Rania, Savitri and Shanti.
10. Per contra, appellants Nirbha, Pistabai, Kamla and Thakurdas recorded the statement of DW-1 Nahar Singh, DW-2 Saligram, DW-3 Lakhan Singh and DW-4 Kailash in support of their plea of alibi. Appellants Kamla, Nirbha and Pistabai took the plea that they had gone to attend Satyanarayan Ki Katha at the house of Nahar Singh (DW-1) whereas appellant Thakurdas took the plea that he had gone to his in-laws' place since his wife was unwell. Both these pleas of alibi were discarded by the trial court primarily on the ground that all Cra.355/2000, Cra. 454/2000 and Cra.459/2000 15 the said Dws were closely related to the said four appellants and therefore are interested witnesses and also the fact that no such suggestions were made in respect of these four appellants being elsewhere at the time of occurrence of incident in the cross- examination of the prosecution witnesses. The court also found that no such plea was raised in the statement of any of these four appellants recorded u/S. 313 Cr.P.C. More so, further reason for discarding testimony of Dws was that they contradicted each other as regards period of stay of the appellants Kamla, Nirbha and Pistabai at the house of Nahar Singh to attend said Satyanarayan Katha. One of the said DWs stated that the said appellants stayed away for one day while other DW stated that they stayed away for 3 days. 10.1 The plea of right of private defence was also raised by the appellants. In this regard, the plea was raised that the appellants were in possession of the agricultural land on which deceased, PW-1 Virdha and his relatives including the injured witnesses were harvesting wheat crop and therefore altercation and assault took place in exercise of right of private defence of property. The trial court discarded this plea as none of the witnesses supported the said plea while in fact categorically denying the possession of the agricultural field in question, to be of the appellants. The court further noticed that the witnesses were unanimous on the aspect that civil suit between the rival parties in regard to the said agricultural field was pending since last 12 years. The court also noticed that the appellants had collected in the adjoining field since 6 a.m in the morning on the fateful day where they cooked and ate food and drank liquor liquor. Alongwith appellants, Sampat and Pistabai (appellants) were also present and it was only at about 4 p.m. that they came down to the place where the deceased, PW-1 and his relatives were harvesting the crop to perpetrate the crime in Cra.355/2000, Cra. 454/2000 and Cra.459/2000 16 question. The court also found that the deceased, PW-1 Virdha and his relatives were unarmed while the appellants were armed. 10.2 The trial court found that the appellants formed an unlawful assembly to assault and commit crime. The common object of forming unlawful assembly was inferred by the trial court on the basis of all the appellants having collected since 6 a.m., in the morning in the adjoining field and thereafter coming down to the scene of incident and committing the offence, armed with weapons. The court also found that all the appellants actively participated in the incident thereby strengthening assumption of all the appellants nursing common object which was to put an end to life of the deceased Ajeeta.
11. From the analysis of the evidence above, the fact which comes to light is that all the appellants involved in the present three criminal appeals have been convicted u/S. 302 with the aid of Sec. 149 I.P.C. Thus, the trial court was of the view that all the appellants formed unlawful assembly as defined in Sec. 149 I.P.C., for committing offence of murder alongwith the principal absconded accused Devpal who inflicted fatal firearm injury. For establishing the offence with the aid of Sec. 149 I.P.C., the essential ingredient is the common object between the members of the unlawful assembly. This object should be to commit the crime for which members of the unlawful assembly are being vicariously held liable for the offence which they have actually and obviously not committed and the same has been executed by only one of the members of the unlawful assembly. The inference of common object is drawn from various factors such as the weapons wielded by the members of the unlawful assembly, their movements, individual acts committed by each of the members and the result thereof. The Apex court in the various decisions has enumerated the scope and ambit of the culpability to which a Cra.355/2000, Cra. 454/2000 and Cra.459/2000 17 member of unlawful assembly can be held responsible for an act which is not done by him but by only one member of the assembly. See : Goudappa Vs. State of Karnataka reported in (2013) 3 SCC 675 (para 20 to 22), Balu Vs. State (UT of Pondicherry) reported in (2016) 15 SCC 471 (para 11 to 15) and Nankaunoo Vs. State of U.P. reported in (2016) 3 SCC 317 (para 11 and
12).
12. The evidence brought on record is that absconded accused Devpal is the one who had inflicted fatal firearm injury whereas the appellants in all the present appeals have either inflicted minor or grievous hurt on non-vital parts of the body of the injured. The testimony of the autopsy surgeon Dr. R.K.Goyal (PW-10) discloses that besides the injury No.(vii) which is opined to be fatal caused by firearm, there was injury No.(i) which was incised in nature of 8 cm. x 1/2 cm. x bone deep over the occipital region of the head of the deceased, which obviously was caused by sharp-cutting object such as phrasa or an axe, which appears to have been caused by another absconded accused Ajab Singh vide testimony of the PW-1 Virdha. So far as injury No.(ii) is concerned, the same was contusion over the right of the head which was minor in nature and the injury Nos. (iii),
(iv) and (v) were also minor in nature being lacerations and abrasions on non-vital parts of the body, i.e., ankle, knee and elbow. 12.1 As regards injury inflicted to the injured eye-witnesses Virdha (PW-1), Suniyabai (PW-2), Muniabai (PW-3), Runia (PW-4), Gyasobai (PW-5), Imartibai (PW-6), Kallibai (PW-7), Shantibai (PW-8) and Savitribai (PW-9), all have sustained injuries of minor and grievous on non-vital parts of the body.
13. In the above conspectus of the circumstances, this court has to see whether each of the appellants involved in the present appeals was individually responsible for his/her individual act of assault or Cra.355/2000, Cra. 454/2000 and Cra.459/2000 18 there are circumstances to indicate that they shared common object to commit murder of Ajeeta with principal absconded accused who inflicted fatal firearm injury.
13.1 The element of common object pre-supposes the commonality of motive and intention among all the members of unlawful assembly. Premeditation and sharing of mind to commit the offence among members of unlawful assembly is vital ingredient which indicates towards each member of the unlawful assembly sharing common object. In the present case PW-1 Virdha is the complainant who has lodged FIR describing the incident without disclosing that there was any meeting of mind between the appellants and the main absconded accused Devpal. PW-1 Virdha in the FIR has stated that at about 4 p.m., when they were harvesting wheat crop, the main absconded accused alongwith the appellants came to the spot armed with weapons and started abusing and assaulting. In his testimony PW-1 for the first time brings out a new story that since 6 a.m., on the fateful day i.e., 15/3/1999 the absconded main accused Devpal, Ajab Singh alongwith all the appellants herein had collected in the adjoining field belonging to the appellant Ajay Singh and were cooking and eating food and consuming alcohol and when it was around 4 p.m., all of them came down to the field where injured PW- 1 Virdha and his relatives were harvesting crop and started abusing and assaulting. This story of the appellants having collected at the adjoining field since 6 a.m on the fateful day and remained there till 4 p.m when they the launched attack is neither mentioned by any of the other witnesses in their previous statements nor in their testimony before the court. Thus, it can safely be said that this story of the appellants having collected alongwith the principal absconded accused since 6 a.m.in the adjoining field was a story concocted and manufactured by PW-1 Virdha to project a case of sharing of common Cra.355/2000, Cra. 454/2000 and Cra.459/2000 19 object between the members of unlawful assembly. This story having been found untrue, the element of the common object vanishes into thin air and therefore each of the appellants deserves to be dealt with solely on the basis of their individual acts.
14. More so, the injuries sustained by appellant No.2-Pistabai in Cri. Appeal No.355/00 and sole appellant Sampatbai in Cri. Appeal No. 459/00 vide P/4 and P/5 which though were minor in nature but have not been explained by the prosecution as discussed in the preceding paragraphs coupled with the fact that all the witnesses have unanimously affirmed and established the presence of motive of long standing property dispute between the rival parties involving civil litigation in the court of competent civil jurisdiction as regards the field in which the incident took place. More so, the forensic report could neither been obtained much less proved by the prosecution and therefore the question as to whether the place of incident had any blood-stained soil or the weapons recovered and seized from the appellants had any blood stains, remained unanswered.
15. The trial court has discarded the evidence of right of private defence of property by applying stricter criteria of proof beyond all reasonable doubt. To establish right of private defence of person or property the accused is to establish the same mainly on the basis of principle of preponderance of probability and not on proof beyond all reasonable doubt. The criteria for establishing plea of right of private defence is required to be proved on the preponderance of probability and not on proof beyond reasonable doubt as held by the Apex court in the case of Ranveer Singh Vs. State of M.P. (AIR 2009 SC 1658) after re-visiting it's earlier view in the cases of Munshi Ram and Ors. Vs. Delhi Administration (AIR 1968 SC 702); State of Gujarat v. Bai Fatima (AIR 1975 SC 1478); State of U.P. v. Mohd. Musheer Khan (AIR 1977 SC 2226), and Mohinder Pal Cra.355/2000, Cra. 454/2000 and Cra.459/2000 20 Jolly v. State of Punjab (AIR 1979 SC 577).
15.1 The trial court in para 35 of the impugned judgment has discussed the reasons for discarding the said plea of right of private defence of property primarily on the ground that all the injured eye- witnesses including PW-1 Virdha has stated in one voice that crop of wheat which was being harvested when the attack took place, was sown by PW-1 Virdha. However, the trial court did not dispute the fact that civil litigation regarding the field in which offence took place is pending between the rival parties since last 12 years. Thus, it is evident that due to this long standing litigation between the rival parties, there was bad blood between them. It is common knowledge that agricultural holdings which in India are predominantly marginal in area, are the sole source of livelihood for a marginal farmer who makes all out efforts to protect his land sometimes even at the cost of incurring the wrath. It is this burning desire in the mind of the appellants of hoping to acquire ownership of the land by fruits of litigation which was pending since long that the appellants were motivated to commit the assault when they saw the yield of the crop being harvested by PW-1 Virdha. Thus, in the considered opinion of this court the fact of sustaining injuries by appellant Pistabai and appellant Sampatbai, the admitted long standing litigation of the rival parties in regard to the land in question where the incident took place coupled with the burning desire of neighbouring farmer to increase his holdings which appears to have been frustrated by long standing litigation, the trial court ought to have given the benefit of right of private defence of property to the appellants to at least some extent. 15.3 Pertinently, appellants Sampatbai and Pistabai, as er ocular evidence of PW@-1 were empty handed and merely pelted stones causing only minor injuries. Thus, these two appellants are liable for the offence of voluntarily causing minor injury punishable u/S. 323 Cra.355/2000, Cra. 454/2000 and Cra.459/2000 21 I.P.C. Whereas all the other appellants except Sampatbai and Pistabai have been seen by one or more of the injured witnesses to cause minor and/or grievous hurt and thus are liable to be held guilty for offence punishable u/S. 324 and/or 325 I.P.C. as enumerated in the table infra.
16. In view of the above discussions, the element of common object being missing and not spelled out from the attending circumstances, the appellants herein have been wrongly convicted and sentenced for commission of offence punishable u/Ss. 148, 302/149 I.P.C. read with 3(2)(v) of the SC & ST Act, but have been rightly held guilty for causing minor and grievous hurt to various injured witnesses with the help of their different weapons thereby rendering themselves punishable u/Ss. 325, 326, 323 I.P.C.
17. Consequently, the present appeals stand allowed in part to the extent of setting aside conviction and sentence of the appellants herein for commission of offence u/Ss. 148, 302/149 I.P.C. and Sec. 3(2)(v) of the SC & ST Act. However, their conviction and sentences are altered as follows :-
Appellants name Offence Sentence (i) Appellants Nirbha, 326 IPC 5 Years R.I. with a fine Kamla and Thakurdas in of Rs. 1,000/- and in Criminal Appeal default of payment of No.355/2000. fine one month rigorous (ii) Appellant Ajay Singh imprisonment. in Criminal Appeal No. 454/2000. (i) Appellants Nirbha, 325 IPC 3 Years R.I. with a fine Kamla and Thakurdas in of Rs. 1,000/- and in Criminal Appeal default of payment of No.355/00. fine one month rigorous (ii) Appellant Ajay Singh imprisonment. in Criiminal Appeal No.454/00.
Cra.355/2000, Cra. 454/2000 and Cra.459/2000 22
(i) Appellants Nirbha, 323 IPC 6 months' R.I. with a fine Pistabai, Kamla and of Rs. 1,000/- and in Thakurdas in Criminal default of payment of Appeal No.355/00. fine one month rigorous
(ii) Appellant Ajay Singh imprisonment in CriiminalAppeal No.454/00.
(iii) Appellant Sampatbai in Cri.Appeal No.459/00
18. Since the appellants herein have been acquitted of the charge u/S. 302/149 I.P.C., as held above, the amount of fine if any paid by the appellants be refunded to them on proper identification.
19. The appellants who have not suffered sentence as upheld above and are on bail, their bail bonds and surety bonds shall stand cancelled and they are directed to surrender in the trial Court to serve the remainder of the sentence forthwith failing which the trial court shall take steps to apprehend them for execution of remaining period of sentence awarded to them. It is further directed that the sentences awarded to the appellants herein as mentioned in the tabular form shall run concurrently.
20. The appellants who have undergone sentence as upheld above and are in jail, they shall be released forthwith if not required to be detained in connection with any other offence.
21. Before we part with these appeals, we would like to make it clear that the findings recorded by us shall govern the appeals which we have heard and disposed of and shall not be taken into consideration in a trial, if any, against the absconding accused persons and the trial Court shall reach its own conclusion on the evidence led before it, without being influenced by the findings recorded in this judgment.
(Sheel Nagu) (Ashok Kumar Joshi)
Judge Judge
27/10/2017 27/10/2017
(Bu)