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Madhya Pradesh High Court

Hari Ram And Ors. vs The State Of M.P. on 5 September, 2017

Author: Arnurag Shrivastava

Bench: Arnurag Shrivastava

                                             Cr.A. No. 1175/2005.
                                             Cr.A. No. 1272/2005
                                             Cr.A. No. 1411/2005
                             1

  HIGH COURT OF MADHYA PRADESH PRINCIPAL
             SEAT AT JABALPUR

(Division Bench: Hon'ble Shri Justice S.K. Gangele
& Hon'ble Shri Justice Arnurag Shrivastava)

           Criminal Appeal No. 1175/2005.

               Parsaddu S/o Sariya Yadav
                        Versus
              The State of Madhya Pradesh

Shri Siddharth Datt, learned counsel for the appellant.
Shri B.D. Singh, learned G.A. for the respondent-State.

           Criminal Appeal No. 1411/2005.

               Siyaram S/o Khuman Yadav
                        Versus
              The State of Madhya Pradesh

None for the appellant.
Shri B.D. Singh, learned G.A. for the respondent-State.

           Criminal Appeal No. 1272/2005.

            Hariram S/o SardaYadav & others
                        Versus
             The State of Madhya Pradesh

None for the appellants.
Shri B.D. Singh, learned G.A. for the respondent-State.

                       *********

WHETHER APPROVED FOR REPORTING: YES/NO.

                      JUDGMENT

(05/09/2017) Per S.K. Gangele J All the three appeals have been filed against common judgment dated 17/05/2005 passed in Sessions Trial No. 109/2003. Shri Siddharth Datt, Advocate has Cr.A. No. 1175/2005.

Cr.A. No. 1411/2005 2 argued on behalf of appellant Parsaddu. Other appeals are on board for last three weeks, nobody is appearing, we have requested Shri Siddharth Datt, Advocate to argue the appeals filed by other appellants. He is appointed amicus- curie. With the assistance of Shri Siddharth Datt all three appeals are heard finally and decided by this common judgment.

2. The prosecution story in brief is that on 02/04/2003 at around 5 O'clock in the evening, the deceased, his mother Ramkali, wife Kunti, brother Buddhu had been cutting their crops in the field. At that time, the appellants came there and threatened the deceased, when the deceased ran away towards the field accused-appellant Hariram fired at him by Katta. The gun shot had hit on the chest of the deceased due to which he died. Buddhu narrated the incident to his uncle and thereafter PW/1 Kalicharan and PW/3 Jamuna lodged the report at the police station. On the basis of report, the police conducted investigation, arrested accused persons and filed charge- sheet before the trial court. The appellants abjured their guilt and pleaded that they have been falsely implicated in the case.

3. After trial, the trial court found the offence proved against the appellant Hariram punishable under Section Cr.A. No. 1175/2005.

Cr.A. No. 1411/2005 3 302 of IPC, Section 25(1-B)(a) and 27(2) of Arms Act. Against other accused persons offence punishable under Section 302/149 of IPC and awarded sentence of R.I. for life to all the accused persons. Hariram has been awarded sentence of R.I. for three and seven years and fine of Rs. 500/-(two counts) for his conviction punishable under Sections 25 (1-B)(a) and 27(2) of Arms Act.

4. PW/1 Kalicharan deposed that the deceased was his nephew. On the date of incident I was cutting crop at the distance from the place of incident. My nephew Buddhu came there and told me that Hariram had killed the deceased by firing a gun shot. He further deposed that 2-4 persons were also present, thereafter, I reached on the spot and noticed that deceased Bitwa was died. He received gun shot injury. Thereafter, I had gone Hanumatpur Police Chowki along with Jamuna. He further deposed that there was ill-will between Hariram and deceased because Hariram had stolen diesel pump of Ramadhar father of the deceased and case is pending in this regard. He further deposed in his cross-examination that I had discussion with Buddhu before lodging the report.

5. PW/2 Buddhu, deposed that the deceased Bitwa was my elder brother. After cutting crop I was collecting Cr.A. No. 1175/2005.

Cr.A. No. 1411/2005 4 the same along with deceased Bitwa, mother Ramkali, Bhabi Kunti was also there. Father Ramadhar was in the Khalihan. At that time Halka, Shivram, Siyaram, Hariram and Parsaddu came to my field and they shouted at Bitwa when deceased Bitwa ran away near the field thereafter, Hariram fired gun shot which had hit on the chest of the deceased. I and my father had taken the body of the deceased to Khalihan. He was died on the spot, thereafter I informed the incident to my uncle PW/1. He went to the Police Station to lodge the report. He admitted the fact that his field is adjacent to the filed of Hariram. This is omission in his statement to the statement that Hariram and Parsaddu had encircled the deceased. He further admitted that father of Hariram had lodged report against my father and Bitwa that they had beaten and case is pending.

6. PW/3 Jamuna deposed that the deceased Bitwa was my nephew. At around 5 O'clock when I was cutting crop in my field, Kalicharan came there and told me that Hariram had killed Bitwa by firing gun shot. I had gone to the police station along with Kalicharan and lodged report.

7. PW/4 Ramadhar, who is father of the deceased. deposed that he was along with deceased in the Khalihan, at that time Halka, Shivram, Siyaram, Hariram and Cr.A. No. 1175/2005.

Cr.A. No. 1411/2005 5 Parsaddu came to my field and they shouted at Bitwa and told that they would kill him, when deceased Bitwa ran away near the field. At that time, Hariram fired a gun shot at Bitwa by Katta which had hit on the chest of the deceased due to which he was died. He further deposed that he had lodged report of theft of diesel pump and case is pending in this regard. He admitted the fact that field of Hariram is adjacent to his field.

8. PW/5 Siyabai who is a child witness, she is sister of the deceased, deposed the same facts that accused persons came there. Hariram had fired gun shot at Bitwa by Katta which had hit on his chest. PW/6 Kunti, wife of the deceased, deposed the same facts.

9. PW/7 Rakesh Kumar deposed that the District Magistrate Panna granted sanction to prosecute the appellant Siyaram for keeping 12 Bore Katta illegally under the provisions of Arms Act.

10. PW/8 Dr. P.N. Sharma, deposed that I was posted as Assistant Civil Surgeon, Community Health Centre, Ajaygarh on 03/04/2003. On the aforesaid date I performed postmortem of the deceased and noticed one gun shot injury on the right chest measuring 6X6 cm. Right lung was damaged due to gun shot. He further deposed that the deceased was died due to gun shot injury and gun Cr.A. No. 1175/2005.

Cr.A. No. 1411/2005 6 shot injury was caused by fire arm.

11. PW/9 Deedar Khan deposed that he had examined Katta and given my opinion that gun shot can be fired from the aforesaid Katta.

12. PW/10 H.S. Chouhan, ASI deposed that he had recorded the report Ex. P/6 at the Police Station and signed the same. Same facts have been deposed by PW/11 G.P. Diwan.

13. PW/12 P.D. Ahirwar, is the investigating officer deposed that on 02/04/2003 I was posted as Station House Officer In-charge prepared panchnama of dead body Ex. P/2, I signed the same and sent the dead body for postmortem vide Ex. P/4-A and arrested the accused Hariram vide Ex. P/8, Shivram and Halka vide Ex. P/9 and Bhallu vide Ex. P/10 I signed the same. On the memorandum of accused Hariram I recovered a Katta vide seizure memo Ex. P/12 and signed the same. I also collected red earth and plain earth from the spot which is Ex. P/13. I recorded the statements of Rajkumar, Jamuna, Bandar @ Ramsanehi, Ramkali, Shriram and Betalal which is Ex. P/1, P/2, P/3, P/4 and P/5. He further deposed that statement of Kalicharan was recorded on 3rd,Buddhu and Ramadhar on 2nd .Statements of rest of persons recorded on subsequent dates.

Cr.A. No. 1175/2005.

Cr.A. No. 1411/2005 7

14. FIR is Ex. P/6, it is lodged by PW/1. It is mentioned in the FIR that at around 5 O'Clock, the deceased was working in the field, at that time Hariram had fired gun shot which had hit on the chest of Bitwa due to which he was died. He further deposed that who were along with Hariram, it is not known. My brother Ramadhar and nephew Buddhu were present on the spot. My brother Jamuna was also present at the time of lodging of the report. In the FIR names of other co-accused persons have not been mentioned.

15. The trial court has convicted other accused persons except Hariram with the aid of section 149 of IPC . The Hon'ble Supreme Court in the case of Bhudeo Mandal and others Vs. State of Bihar AIR 1981 SC 1219 has held as under in regard to ingredients of Section 149 of IPC:-

"We would like to point out that whenever the High Court convicts any person or persons of an offence with the aid of section 149 a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under section 149 of the Indian Penal Code, the essential ingredient of section 141 of the Indian Penal Code must be established. Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The Cr.A. No. 1175/2005.

emphasis is on common object. In the instant case there is neither any evidence nor any finding that any of the ingredients of section 149 have been established by the prosecution."

Hon'ble Supreme Court has specifically held that in awarding punishment for commission of Offence punishable under Section 149 of IPC there must be clear finding regarding common object of the assembly must show not only the nature of the common object but also that the object was unlawful. In the present case, it is a fact that other accused persons were not assembled unlawfully. Witness says that accused persons had come at the place and shouted at the deceased due to which the deceased ran away and thereafter accused appellant- Hariram fired gun shot. There is no overt-act or participation of other accused persons. In the FIR which was lodged on the same day at around 8.45 PM after near about four hours, the names of other accused persons have not been mentioned, it was lodged by Kalicharan PW/1 who is uncle of the deceased. He deposed that Buddhu told me that Hariram had killed the deceased. Buddhu PW/2 is the real brother of the deceased, if other accused persons were present on the spot he must have had told the aforesaid facts to PW/1 Kalicharan and the same facts could have been mentioned by PW/1 Kalicharan Cr.A. No. 1175/2005.

Cr.A. No. 1411/2005 9 in the FIR, however, it is missing. There is evidence in regard to enmity between Hariram and the deceased. There is no evidence that there was enmity between the deceased and other persons. This is also a fact that two accused persons Halka and Shivram are the brother of Hariram. Their roping could not be ruled out, if there was intention between all the accused persons they must have armed with some weapons. The deceased had received only one gun shot injury, it cannot be said that there was a common intention and common object among all the accused persons to kill the deceased, hence, in our opinion, the trial court has committed an error of law in holding other appellants except Hariram guilty for commission of offence punishable under Section 302 with the aid of section 149 of IPC.

16. In regard to Hariram there is ample evidence against him in the FIR which was lodged within four hours of the incident, his name has been mentioned. There are eye witnesses PW/2, PW/4, PW/5 and PW/6. All the witnesses have deposed that Hariram had fired a gun shot which had hit on the chest of the deceased. The same facts have been corroborated by evidence of doctor PW/8 who performed postmortem of the deceased. Katta was also seized from the possession of appellant-Hariram which Cr.A. No. 1175/2005.

Cr.A. No. 1411/2005 10 was in workable condition. Accused Hariram had no licence to have Katta, hence, possession of Katta by accused Hariram was illegal. Hence, the trial court has rightly convicted Hariram for commission of offence punishable under Section 302 of IPC and Sections 25(1-B)(a) and 27(2) of Arms Act and awarded a proper sentence and imposed fine also.

17. Consequently, Cr.A. No. 1175/2005 filed by Parsaddu is allowed. Cr.A. No. 1272/2005 filed on behalf of Halka @ Ramdev and Shivram is also allowed, However the appeal filed on behalf of Hariram is hereby dismissed. Cr.A. No. 1411/2005 filed by Siyaram is also allowed. On the basis of aforesaid discussion the appeal filed by appellant Hariram is hereby dismissed, his conviction and sentence awarded by the trial court is hereby upheld. The appeals filed by other accused persons are hereby allowed, their conviction and sentence awarded by the trial court for commission of offence punishable under Section 302 and 149 of IPC is hereby set-aside. The appellants Siyaram, Parsaddu, Halka @ Ramdev and Sivram are on bail, their bail bonds are discharged.

           (S.K. GANGELE)              (ANURAG SHRIVASTAVA)
              JUDGE                            JUDGE

MISHRA