Madhya Pradesh High Court
Makhan Singh S/O Komal Singh Dangi And ... vs The State Of Madhya Pradesh on 31 March, 2006
Bench: Dipak Misra, A.K. Shrivastava
JUDGMENT
1. All these appellants in the above said three appeals have assailed their judgment of conviction and order of sentence dated 6.5.1991 passed by Additional Sessions Judge, Khurai district Sagar in Sessions Trial No. 93/90. Accused Vrindavan stands convicted under Section 302 and 148 IPC, Raju alias Rajesh Singh, Jahar Singh, Makhan Singh, Badal Singh, Heera Singh alias Bakhat Singh have been convicted under Section 302/149 IPC. Accused Raju alias Rajesh Singh and Jahar Singh are also convicted under Section 323 IPC. Accused Vrindavan has been sentenced for life imprisonment under Section 302 and one year R.I. under Section 148 IPC. Other appellants have been sentenced for life imprisonment under Section 302/149 IPC and they have been further sentenced to suffer one year R.I. for the offence under Section 148 IPC, Accused Raju @ Rajesh and Jahar Singh have been further sentenced to suffer six months R.I. each under Section 323 IPC. All the sentences have been directed to run concurrently.
2. In brief the case of prosecution is that on 27.8.1990 at 8 p.m. Bhaiyaram (hereinafter referred to as the deceased) was going to attend Bhagwat Katha, on the way in front of the house of the accused Vrindavan all the accused persons caused Marpeet to him. At that juncture acquitted co-accused Janak Dulari was holding lantern. Accused Vrindavan was having an axe, Makhan, Badal, Heera Singh, Jahar Singh, Shivram, Raju, Rajendra, Prem Singh were carrying lathi and accused Veer Singh was having stone bolder. All the accused persons caused Marpeet to the deceased. Accused Vrindavan caused axe blow on the head of the deceased and rest other accused persons dealt lathi blows as a result of which the deceased fell down and thereafter his mother Rajdulari when arrived on the spot to rescue him, Rajendra Singh dealt a kick blow to her. Appellant Makhan dealt two lathi blows to her. Accused Raju and Jahar Singh also caused Marpeet to Kunwar Singh. It is the further case of the prosecution that the accused persons uplifted the deceased and brought him inside the house of accused Vrindavan and bolted the door from inside and thereafter caused marpeet to him. The deceased was screaming. Accused Makhan and Janak Dulari uplifted a stone bolder and threw it on the head of the deceased. Thereafter, he died. The entire episode which occurred inside the house of accused Vrindavan was witnessed by Kunwar Singh from the thatched roof of his house. Accused Makhan, Raju, Jahar and Badal were hurling the abuses and were saying that if anybody would come to rescue the deceased he will be killed. Thereafter, Rajendra Singh, Prem Singh and Heera Singh brought the deceased outside from the house and threw him in the Gali (lane).
3. The incident was stated by the residents of the village, namely, Halkai, Ramswaroop, Shyamlal, Daulat to police station Khimlasa in the night and thereafter the police force arrived at the spot. After arriving at the spot, Panchanama of the dead body and a spot map was also prepared. The dead body of the deceased was sent to the hospital for postmortem. The doctor found two lacerated wounds and seven contusions. The tibia bones of both the legs were found to be fractured. According to the doctor the deceased died as a result of comma and haemorrhage on account of the head injury.
4. Kunwar Singh, Raghuveer, Dalpat were also medically examined and their reports are Ex.P-8, P-9 and P-10. Similarly, Rajdulari was examined by the doctor and her medical report is Ex.P-42. On the basis of Dehati Nalishi Ex.P-1 lodged by Kunwar Singh in the village, an FIR was registered in the police station. The police party seized the blood stained and ordinary earth from the place where the dead body was lying and also seized the hair which were found in the fist of the deceased. Four stones were seized from the courtyard of the accused Vrindavan, the blood stained clothes of the deceased were also seized and after arresting the accused persons, seized the weapons from them. The investigating agency after taking the statement of the witnesses, submitted a charge sheet in the competent court, which committed the case to the Court of session and from where it was received by the trial court for the trial.
5. The trial court framed the charges punishable under Section 147, 148 and 302 read with Section 149 and Section 323 IPC against the accused persons.
6. In order to prove the charges the prosecution examined as many as 17 witnesses and placed Ex.P-1 to P-60 the documents on record. The defence of accused Vrindavan is of alibi. According to him, he was admitted in the hospital at Khurai from where he was arrested by the police. The defence of accused Veer Singh is that he is a disabled person and is unable to move. The defence of other accused persons is of false implication. Accused Vrindavan in his defence examined Mahesh Samaiya as DW-1 and Dr. Narendra Kumar Pandey as DW-2 and Dr. Rakesh Saxena. Accused Bakhat Singh @ Heera Singh examined Ramkishan as his defence witness. One Chandan Singh was also examined as DW-3.
7. The trial court after scanning the entire case came to hold that accused persons, namely, Veer Singh, Janak Dulari, Prem Singh and Rajendra Singh did not commit any offence, as a result of which they were acquitted. However, since the offence committed by the present appellants were found to be proved, they were convicted and sentenced for the offences which we have mentioned hereinabove. Hence these appeals have been preferred by the convicted accused persons.
8. It has been contended by learned Counsel for the appellants that if the evidence and the documents placed on record are considered in proper perspective it would reveal that the prosecution has utterly failed to prove its case beyond all possible doubts and therefore the trial court erred in substantial error of law in convicting the appellants. An alternative submission has been putforth by learned Counsel that even if the case of the prosecution is taken into consideration in toto it would not rest beyond 304 part II or at the most 304 part IPC.
9. On the other hand, learned Additional Advocate General argued in support of the impugned judgment.
10. After having heard learned Counsel for the parties, we are of the view that this appeal deserves to be dismissed.
11. In order to appreciate the rival contentions of learned Counsel for the parties, we shall now examine oral and documentary evidence. PW-1, Kunwar Singh is the author of the Dehati Nalish (Ex.P-1) on the basis of, which FIR was registered. He is also an eye witness. He is the brother of the deceased. PW-2, Raj Dulari who is the mother of the deceased, PW-3 Hari Ram a village Kotwar and PW-4, Ghasiram Brahman are the eye witnesses. PW-5 Raghuveer Patel is an another witness who has seen later part of the incident. PW-6, Gulari and PW-7 Rajaram are the witnesses who have heard the scream of the deased in front of the house of the accused Vrindavan. PW-8, Dr. Rakesh Saxena is the autopsy surgeon who conducted the post mortem. This doctor also examined injured Kunwar Singh, Raghuveer Singh and Dalpat. PW-9, Suresh Chandra is the witness of seizure of the weapon and memorandum under Section 27 of the Evidence Act. Similarly PW-10 Bheekam Gadariya is the witness of seizure memo of the weapons but he was turned hostile. PW-11, Kanchedilal is the witness of spot map, PW-12, Dalpat Singh is the witness who arrived at the spot after hearing hue and cry and was beaten by accused Makhan by lathi. PW-13, Dr. Sunil Pandya is the doctor who examined injured Rajdulari (mother of the deceased), PW-14, Ramgopal is the constable of police Station Khimlasa. This witness brought the Dehati Nalish (Ex.P/1) and submitted it to the police station Khimlasa on the basis of which the FIR was registered. PW-15, Shyamlal Pandey constable is a formal witness who submitted the copy of the First Information Report in the court, PW-16, Ramesh Kumar is the Head Constable who reduced the FIR in writing on the basis of Dehati Nalish and PW-17, R.S. Parmar is the investigating, officer.
12. There are as many as four star witnesses. They are PW-1 Kunwar Singh, PW-2 Raj Dulari, PW-3 Hari Ram and PW-4 Ghasiram. We shall now marshall the evidence of these eye witnesses.
13. PW- 1, Kunwar Singh is an eye witness as well as the author of the Dehati Nalish (Ex.P-1) on the basis of which FIR was registered. On going through Ex.P-1, it is gathered that he was serving as a clerk of one Advocate Prakash Choubey. On the date of the incident, he came to his house after the court hours and found that his brother Bhaiyaram (deceased) was proceeding to attend Bhagwat Katha. He heard the shriek of the deceased as a result of which he along with his mother came out from the house and saw that acquitted co-accused Janak Dulari was holding the lantern and in the light of lantern he saw that at the door of the house of Vrindavan, the deceased was being beaten by Vrindavan by axe and other accused persons by lathi. It has been specifically stated in the report that accused Vrindavan dealt axe blow on the head of the deceased and other accused persons caused Marpeet by lathis, as a result of which he fell down and when he and his mother rushed to rescue the deceased, acquitted co-accused Rajendra Singh gave a kick to his mother, as a result of which she fell down. The second kick was given by the accused Makhan to her mother which landed beneath her right eye. Thereafter, Makhan also gave two lathi blows which landed on her right leg. He was caught hold by accused Jahar Singh and Raju. Accused Raju also gave 2-3 kicks to him, as a result of which he fell down. Thereafter all the accused persons uplifted the deceased and brought him inside the house of Vrindavan and bolted the house from inside. His brother was screaming in high tone. He climbed up on the thatched roof of his house and saw that all the accused persons were causing Marpeet to the deceased. Thereafter accused Makhan Singh and acquitted co-accused Janak Dulari uplifted a stone bolder and threw it on the deceased and thereafter he died. Accused Raju, Makhan, Jahar and Badal were scolding in high tone that whoever will come to rescue, he will be killed. Thereafter Rajendra Singh, Prem Singh and Heera Singh brought the deceased outside the house and threw him in the lane (gali). These persons thereafter ran away by hurling abuses and also caused Marpeet to some other villagers. This witness thereafter came and when saw the deceased, found that he had already died. The blood was oozing from his head and on the entire body the injuries of lathis were there. On account of fear, he did not lodge the report in the police station in the night. But, when he came to know that police party had arrived in the village he lodged this Dehati Nalish (Ex.P-1).
14. We shall now tally the averments made in the Dehati Nalish from the testimony of its author Kunwar Singh (PW-1). In his testimony, this witness has stated the same version which he narrated in Ex.P-1. He has specifically stated that first of all accused Vrindavan caused axe blow on the head of the deceased and thereafter all the accused persons caused injuries by lathis. When he and his mother went to rescue the deceased they were also beaten. By accusing accused Makhan this witness has said that he (Makhan) wielded two lathis on the person of his mother. Accused Raju and Jahar Singh caught hold of him and also inflicted two kicks on his stomach. Ghasiram and Hariram were also witnessing the incident and were standing little ahead. Thereafter all the accused persons, carried the deceased inside the house of Vrindavan and bolted the door from inside. The deceased was screaming in very high tone. He was being brutally beaten inside the house. This witness saw the incident from the thatched roof of his house from where the house of Vrindavan is quite visible. After some time the accused persons brought the deceased outside the house and threw him in the lane (gali). They were saying that if any villager would come he (sic) be killed. This witness thereafter came to the place where the deceased was lying and found him dead.
15. In the cross examination this witness has stated that first of all accused Vrindavan dealt the axe blow but he could not notice that the blow was dealt from which side of the axe. However, he has specifically stated that the blow of axe landed at the centre of the head. After Vrindavan dealt the blows of axe, other accused persons caused lathi injuries. Thereafter this witness has stated that accused Makhan dealt the lathi blow on the head of the deceased, similarly the blow of lathi of Badal was also landed on the head, Heera Singh gave a lathi blow on his back. The defence counsel confronted this part of testimony of Kunwar Singh from the FIR and this witness has admitted that in the FIR he did not mention that Makhan, Badal and Hari Singh caused lathi on head and waist of the deceased.
16. Merely because in the Dehati Nalishi (Ex.P-1), specifically it has not been mentioned that Makhan, Badal and Heera Singh caused lathi blow on the head and waist would not dilute or sweep the guilt of these accused persons and merely by this omission in the Dehati Nalish, it cannot be said that these three accused persons are innocent. This omission is only a minor. In the Dehati Nalish (Ex.P-1) there is an allegation that these three accused persons caused injuries by lathi. The averments made in Ex.P-1 in regard to the causing of injuries by lathi is very much there. Dehati Nalish or FIR cannot be equated with that of plaint of a civil suit and merely because in very specific words it has not been mentioned that these three accused persons caused injuries on the head, back and waist, though the role of beating by lathi has been very well mentioned in the Dehati Nalish, it cannot be said that on this ground it is difficult to hold the version of the prosecution to be false.
17. Another eye witness is Rajdulari who is also the mother of the deceased. She has stated that on hearing the scream of his son (the deceased) she and her son PW-1 came out of the house and saw that in front of the house of accused Vrindavan, accused persons were standing encircling the deceased. Accused Vrindavan caused injury by an axe on the head of the deceased and other persons who were carrying lathis, also caused injuries by lathi. Accused Raju and Jahar and Makhan gave lathi blows to her. Raju also caught hold the Kunwar Singh. Thereafter the accused persons carried the deceased incised the house of Vrindavan. On hearing the hue and cry witnesses Ghasiram and Hariram arrived at the spot.
18. The statement of these two eye witnesses has been corroborated by another independent eye witness PW-3 Hariram and PW-4, Ghasiram Brahman. Hence, it has been proved that first of all Vrindavan dealt the axe blow on the person of the deceased and thereafter the appellants caused injuries to the deceased. The statement of eye witnesses has been corroborated by the medical evidence. PW-8 Dr. Rakesh Saxena is the autopsy surgeon and he found following injuries:
(i) Contusion 2"x2" over Lt. eye (bleek eye)
(ii) Lacerated wound 3.3 No. varying from 3-5 cm x 2 cm x bond deep of forehead centrally and Lt. side
(iii) Lacerated wound 2"x1"xbone deep over Lt. side of scalp
(iv) Lacerated wound 7 cm x 2 cmx bone deep over mid. parietal area
(v) Contusion 8"x3" over Lt. forearm bone
(vi) Contusion 6"x3" over Lt. hand
(vii) Contusion 8"x3" over Rt. leg Tibia = Lt.
(viii) Contusion 6"x3" over Lt. leg of = Tibia Rt.
(ix) Multiple contusion over back and hips.
Injury No. 2 as a matter of fact is not a single one but is three in number. Because the doctor on examining injury No. 2 found three laceration 3cmx5cmx2cm bone deep. Similarly, injury No. 9 is comprising of several contusions as it has been opined by the doctor that on the back and buttock there were several contusions. The cause of death has been stated by the doctor to be haemorrhage and comma on account of head injury. In the cross examination the doctor has stated that injuries No. 5 to 9 were not caused on the vital part. Injury No. 1, 6 and 9 were not comprising of any fracture and they were simple in nature. Similarly, injury No. 2, 3 and 4 though were found on the head but there was no fracture. Apart from Injuries No. 2, 3 and 4 the death could not have been caused by the other injuries. Thus, the evidence of eye witnesses do tally with the medical evidence also. We have already discussed that though the doctor found as many as 9 injuries but as a matter of fact they were more than 9 because injury No. 2 was having three lacerated wounds and that too on the middle of the forehead. All these wounds were bone deep and thus if the injuries No. 2, 3 and 4 are calculated though they appear to be three in number but as a matter of fact there were five injuries on the head. Injury No. 5 contusion 8"x3" was found on left forearm and the bone was fractured. It is a matter of common knowledge that if a blow is being dealt on the head, the person would rescue himself by keeping his hand on his head so that the blow may not be landed on his head and thus there is all possibility that the deceased might have raised his left forearm in order to rescue himself from the blows which were going to be caused on the head and for this reason the left forearm bone of the deceased was got fractured.
19. There is no force in the argument of learned Counsel for the appellant that since there is an axe blow it would be deemed that it was dealt from the blade side and since there is no incised wound on the person of the deceased, therefore the story of the prosecution becomes doubtful. It be seen that it has been specifically stated in para 9 of the cross examination by Kunwar Singh that he could not notice which side of the axe was used by Vrindavan while causing the injuries. However, he has stated that the blow was dealt in the middle of the head and there is corresponding injury on the head in the postmortem report.
20. Shri Ahadullah Usmani by raising the plea of alibi has argued that there is evidence to the effect that accused Vrindavan was not present at the spot. In that regard he has invited our attention to the statement of Dr. Rakesh Saxena who was also examined by the defence as their witnesses and the trial court in continuation of his earlier deposition sheet recorded his statement and examined him as defence witness on 12.4.1991. According to this witness on 27.8.1990 at 10 in the night on account of complaining the pain in the abdomen, accused Vrindavan was admitted in the hospital as an indoor patient. However, on going through Ex.D-5 it is gathered that in the last column of the register the entry about accused Vrindavan has been mentioned. Apart from this the incident had taken place at 8 p.m. while Vrindavan is said to have been admitted at 10 p.m. The doctor in his cross examination has admitted that he examined the patient (Vrindavan) on 27.8.1990 at his residence and the patient made complaint about pain in his abdomen. The over all condition of the patient was quite normal, only the pulse rate was little high. The doctor suspected the pain of renal colic. On scrutiny of the evidence it is found that the doctor has not at all stated that the condition of the patient was as such that he was required to be admitted immediately in the night at 10 p.m. Thus when there was no emergency it raises a doubt why in the night at 10 the patient was admitted in the hospital when his physical condition was quite normal. The entry in Ex.D/5 in regard to the admission of Vrindavan in the hospital is at the end of the register and the same is the last entry. Thus the planting of the evidence of alibi cannot be ruled out. All the eye witnesses including two independent eye witnesses i.e. village Kotwar. Hari ram and another independent witness Ghasiram Brahman, in singular voice have stated that accused Vrindavan and other accused persons caused injuries to the deceased. Their evidence is further corroborated by another independent witness of the village PW-5 Raghtiveer Patel who arrived at the spot at the later part of the incident when the accused after committing the offence, were going back. According to PW-5, accused persons including Vrindavan were saying that whoever will help the deceased, would be treated in the same manner as the deceased was treated.
21. The trial court from para 29 to para 31 has discussed and disbelieved the plea of alibi in detail and found it to be concocted. We have seen findings of the trial court in that regard which is based on appreciation of evidence and we are of the considered view those reasonings are quite cogent and reasonable.
22. There is no substance in the submission of learned Counsel for the appellants that Kunwar Singh was not present at the spot when the incident took place. He has invited our attention to the statement of defence witness DW-2 Dr. Narendra Kumar who has stated that Kunwar Singh who is the author of Ex.P-1, is his tenant and was residing in his house at Khurai for last 10-12 years. He is clerk of O.P. Choubey, Advocate and on the date of the incident he was at Khurai. In the night he along with Kunwar Singh went to eat beetle nut and thereafter he arrived at his house 9-10 p.m. and slept. In the morning he found that Kunwar Singh was not in his house and the house was locked. In the noon at three Kunwar Singh came and his wife told him that he is weeping and is saying that his brother has been murdered in the village. On being asked to him, Kunwar Singh told that in the night his brother Bhaiyaram has been murdered. It has also been argued by learned Counsel that looking to the evidence of Dr. Narendra Kumar Pandey it cannot be said that Kunwar Singh, who is the author of Dehati Nalish, was present in the village. On the contrary it is proved that he was at Khurai. But, according to us, if the entire statement of this witness is read minutely, it is gathered that in the month of September Kunwar Singh vacated the house i.e. immediately after one month of the incident. It appears that there must be some dispute about the tenancy and therefore the evidence, that on the date of the incident in the night Kunwar Singh was not in village and was in Khurai, appears to have been planted in order to give a colour that the Kunwar Singh was not present at the spot when the incident took place. The trial court in para 31 and 32 has discussed the evidence of this witness in detail and has come to the conclusion that this type of evidence is concocted and planted. It has come in the evidence of defence witness Narendra Pandey that one Sardar Singh is also his tenant and Kunwar Singh used to sleep in the tenanted portion of Sardar Singh because one of the wall of the tenanted portion of Kunwar Singh got fallen and Sardar Singh used to sleep in that portion (tenanted portion of Kunwar Singh) during those days. The trial court in para 32 rightly came to hold that Sardar Singh could have been the best witness for the defence who could have stated whether Kunwar Singh slept in his tenanted portion on the date of incident or not. Said Sardar Singh has not at all been examined by the defence.
23. So far as the plea of alibi of Vrindavan is concerned, in the cross examination to the author of FIR and eye witness PW-1, Kunwar Singh, the defence story was not putforth and confronted to him that since Vrindavan was admitted in the hospital on 27.8.1990 therefore he was not present on the spot and hence he did not take part in the commission of the offence. This defence was also not confronted to the other eye witnesses namely, Rajdulari, Hariram, Ghasiram and Raghuveer Patel.
24. There is no substance in the argument of learned Counsel for the appellant that Kunwar Singh since he was serving on the post of clerk therefore he is well acquainted about the law and its procedure and why he did not go to lodge the report in the police station. In this regard we may not hesitate at the repetition of cost to read again Ex.P-1 in which it has been specifically mentioned by Kunwar Singh that the accused persons created great terror in the village by brandishing the weapons and they were saying that whoever will come to rescue, will be killed. He has further stated that on account of fear he did not go in the night to lodge the report and when he came to know that police party had arrived in the village he lodged the report in the village. The averment made in Dehati Nalish appears to be quite natural. Apart from this, if we go through the testimony of PW-5, Raghuveer Patel who at the later stage arrived at the spot when the accused persons were going back after committing the offence it is found that the accused persons were hurling the abuses and were saying that whoever will come to help the deceased, will be treated in the same manner as the deceased was treated. Thereafter Makhan dealt a lathi blow on his left leg which landed little above the knee. There is corresponding injury found by the doctor when this witness was examined. The medical report of this inured witness is Ex.P-9 where the doctor found a contusions 3"x1" on the left thigh which was caused by hard and blunt object. The trial court in para 33 and 34 has discussed the evidence of defence comparing it with the prosecution evidence and after marshalling the two set of evidence found the prosecution evidence to be quite reliable. It has come in the evidence of defence witness Dr. Pandey that the distance of village Halau where the incident had taken place from Khurai is 15 km and normally a person can travel this distance by bicycle within two hours thus from any angle the statement of Kunwar Singh cannot be said to be unnatural that after completing the court work, in the evening he came to his village.
25. Even if for the sake of argument If we ignore the presence of Kunwar Singh at the spot as argued by learned Counsel for the appellant, even there is unimpeachable evidence of other eye witnesses i.e. the mother of the deceased PW-2 Rajdulari and other independent witnesses, namely Hariram, Ghasiram and Raghuveer Patel. Thus there is ample and sufficient evidence of the prosecution proving the guilt of the appellants. We have minutely discussed the evidence of the prosecution witnesses and on the basis of the inference which we have drawn hereinabove we have no scintilla of doubt in order to hold that appellants caused injuries to the deceased, as a result of which he died.
26. An alternative submission has been putforth by learned Counsel for the appellant that the case would not rest under Section 302 IPC and at the most conviction could be either under Section 304 part I or Part II IPC. In that regard learned Counsel has invited our attention to the evidence of PW-8 Dr. Rakesh Saxena that there are in all 9 injuries on the person of the deceased and out of them injuries 1, 6 and 9 are not fracture and they are simple in nature. Injuries 2, 3 and 4 though were found on the head, but, no fracture was detected. In support of his contention learned Counsel has placed reliance on following decisions:
(i) Molu and Ors. v. State of Haryana
(ii) Sarwan Singh and Ors. etc. v. The State of Punjab
(iii) Sarman and Ors. v. State of Madhya Pradesh
(iv) Kirti Mahto and Ors. v. State of Bihar 1994 Supp (2) SCC 569 Learned Counsel by inviting my attention to the decision of Rajendra Shantaram Todankar v. State of Maharashtra and Ors. and the case of Sarman (supra) has argued that looking to the role assigned to Makhan and Badal they cannot be roped under Section 149 IPC. However, we are not at all impressed by the said argument. It is true that on the head no fracture was found but it is equally true that there is a fracture in the left forearm of the deceased and we have already drawn inference that in order to rescue himself from the blow which could have landed on the head the deceased must have raised his left hand as a result of which the blow landed on his forearm which was fractured. Apart from this though in the postmortem report the doctor opined three injuries on the head which were found to be bone deep but as a matter of fact injury No. 2 was comprising of three laceration on the forehead and thus there were as many as 5 injuries on the head and they were bone deep. Thus since there were five blows on the head which is a vital organ of the body, we are of the considered view that the case would not rest either under Section 304 part I or part II, but, would rest under Section 302 IPC.
27. The decision of Molu (supra) is not applicable in the present case because in that case the injuries were caused by lathis and were minor in character and they were not on the vital part of the body. The injury which was found on the scalp was superficial. According to the opinion of the doctor In the case of Molu (supra) the death occurred due to shock and haemorrhage as a result of multiple injuries received by him. However, in the present case the doctor has opined that the death has caused on account of head injury. In the case Sarwan Singh (supra) there was no evidence that the injuries which were caused to the deceased were with an intention to cause death or the injuries were sufficient in the ordinary course of nature to cause death. In the present case there is specific evidence of the eye witnesses corroborated by Post mortem report that there were five injuries on the head of the deceased bone deep as a result of which he died. Thus the facts and circumstances of the given case in hand is different from the case of Sarwan Singh (supra). The decision of Kirti Mahto (supra) is also not applicable because the injuries were not caused on the vital part but in the present case there are as many as five injuries on the head and all of them are bone deep. The decision of Sarman (supra) there was no evidence which accused caused which injury and the injuries were also not on the vital part and therefore this decision is also not applicable in the present case.
28. Appellant Vrindavan has been rightly convicted under Section 302 IPC. The other accused persons have been rightly convicted under Section 302/149 IPC because after Vrindavan caused injury by axe on the head of the deceased all the other appellants caused injuries by lathis and thereafter they dragged the deceased inside the house of Vrindavan and bolted it from inside and there also they dealt the blows. Thus the act of other appellants would come under the ambit and sweep of Section 149 IPC. The decisions of Rajendra Shantaram Todankar (supra) and Sarman (supra) are not applicable in the present facts and circumstances because in the case of Rajendra Shantaram Todankar (supra) some of the accused persons did not cause injury to the decease. But in the present case all the appellants caused injury to the deceased. Similarly the decision of Sarman (supra) is not applicable to the facts of given case in hand and on the facts it is distinguishable. In the present case after the blow of axe dealt by Vrindavan all other accused persons caused injuries to the deceased. Thus we are of the considered opinion that other appellants have been rightly convicted under Section 302/149 IPC.
29. We have also considered the findings of trial court convicting all the appellants under Section 148 IPC and accused Raju @ Rajesh Singh and Jahar Singh under Section 33 IPC and they are found to be quite cogent. The reasonings are based on the appreciation of the evidence. Thus the conviction of appellants under those sections have rightly been accorded.
30. For the reasons stated hereinabove all the appeals are dismissed. The appellants are on bail. Their bail bonds are cancelled and they are hereby directed to surrender to serve the rest part of their sentence.