Madhya Pradesh High Court
State Of M.P. vs Kailash & Ors. on 18 June, 2018
Cr.A. No.783/2000
Cr.A. No.503/2003
(1)
HIGH COURT OF MADHYA PRADESH,
BENCH AT GWALIOR
DB :- Sheel Nagu & S.A. Dharmadhikari, JJ
Cr.A. No.783/2000
Kailash Meena and Ors.
Vs.
State of M.P.
&
Cr.A. No.503/2003
State of M.P.
vs.
Kailash and Ors.
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Shri Pawan Vijayvargiya, Advocate for the appellants
in Cr.A. No. 783/2000 and for the respondents in Cr.A.No.
503/2003
Shri Anoop Nigam, Advocate for appellant no.1 in
Cr.A. No.783/2000.
Shri J.M. Sahani, Public Prosecutor for the State.
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JUDGMENT
18/06/2018 Per Dharmadhikari, J.
These appeals are inter-linked as preferred against a common judgment dated 21/11/2000 passed by Additional Sessions Judge, Sheopurkalan in S.T. No. 168/99. By the said judgment, appellants in Cr.A. No. 783/2000 (hereinafter referred to as "the appellants") have been convicted and sentenced as under :-
Appellan Name of Conviced U/s. Sentenced to undergo ts No. appellants 1& Kailash & 147 of IPC Six months RI with fine of
3. Ghanshyam Rs. 500/- in default to S/o suffer RI for 15 days.
Shrikrishna 324 r/w 149 of One year RI with fine of Cr.A. No.783/2000 Cr.A. No.503/2003 (2) Meena IPC Rs. 1,000/- in default to suffer RI for three months 304 Part-II r/w Five years RI with fine of section 149 of Rs. 2,000/- in default to IPC suffer RI for six months 323 of IPC Three months RI with fine of Rs. 500/- in default to suffer RI for 15 days.
2 Hansraj 148 of IPC One year RI with fine of Rs. 1,000/- in default to suffer RI for three months 324 /149 of IPC One year RI with fine of Rs. 1,000/- in default to suffer RI for three months 304 Part - II of Five years RI with fine of IPC Rs. 2,000/- in default to suffer RI for six months 323 of IPC Three months RI with fine of Rs. 500/- in default to suffer RI for one month.
4 Ramkaran 148 of IPC One year RI with fine of Rs. 1,000/- in default to suffer RI for three months .
324 of IPC One year RI with fine of Rs. 1,000/- in default to suffer RI for three months.
304 Part - II r/w Five years RI with fine of
section 149 of Rs. 2,000/- in default to
IPC suffer RI for six months
5 Ramvilas 147 IPC Six months RI with fine of
Rs. 500/- in default to
suffer RI for one month.
324 r/w section One year RI with fine of
149 of IPC Rs. 1,000/- in default to
suffer RI for three months.
304 Part - II r/w Five years RI with fine of
section 149 of Rs. 2,000/- in default to
Cr.A. No.783/2000
Cr.A. No.503/2003
(3)
IPC suffer RI for six months
with the directions that the custodial sentences shall run concurrently. The trial Court also directed each one of the appellants to pay a sum of Rs.12,000/- as compensation to wife and daughter of deceased Ravindra.
By that judgment only, the trial court has acquitted the co-accused persons namely Ghanshyam Prajapati, Sitaram S/o Heeralal, Sugriv & Sitaram S/o Kishna Meena of the offences punishable u/Ss. 147, 302/149, 307/149 and 323/149, while the appellants have also been acquitted of the offences punishable u/Ss. 302 and 307 r/w section 149 of IPC, aggrieved whereof, State has preferred Cr.A. No. 503/2003 u/Ss.378 of Cr.P.C. Both these appeals have been analogously heard and are being decided by this common judgment.
2. Prosecution story, in brief, is that on 02/03/1999 one Deepak along with his helper Bablu had gone at the canal of village Mudla for washing his Bus. Between 10.45 to 11 AM, while returning home, accused persons namely Kailash Meena,Hansraj Meena, Ghanshyam Meena, Ghanshyam Kumar and Sugriv Meena intercepted the bus and dragged Deepu @ Dependra out of it. Alighting him out, Hansraj dealt a blow with iron pipe on his head. The said pipe was having hooks on it. Kailash, Ghanshyam Meena, Sugriv Meena and Ghanshyam Kumar weilded lathis on him. Seeing the incident, helper Bablu ran to the home of Deepu @ Dependra and apprised Harendra and Ravindra about the incident. When Harendra and Ravindra were going towards the spot at Village Mudla, Deepak met them at Galmanya road from Cr.A. No.783/2000 Cr.A. No.503/2003 (4) whose head blood was oozing. On being asked, Deepak informed that Kailash and Hansraj had assaulted him with Lathis having Khutya (hooks). At this juncture, Hansraj armed with iron pipe (Pampi) with Dhariya attached thereto, Kailash, Ghanshyam and Ramvilas armed with Lathis and Ramkaran Meena armed with Gandasi, along with four other accused persons who were also armed with Lathis and whose names complainant did not know, came on the spot and in furtherance of their common object exhorted each other. Hansraj, with an intention to kill Ravindra, gave a Dhariya blow on his head causing him to fall down. Kailash, Ghanshyam and Ramvilas also assaulted Ravindra with Lathis. When Harendra and Deepak came forward to rescue Ravindra, Ramkaran gave a Gadasi blow on the head of Harendra, Kailash gave a Lathi blow on Harendra's right calf. Thereafter, Ramvilas, Ghanshyam and four other accused persons assaulted all the three brothers with Lathis. On hue and cry being raised, Amar Singh, Pratap Singh Sisodiya, Bablu helper and a gardener came on the spot and intervened. Amar Singh and Pratap Singh took all the three brothers on Tractor of Satish Tripathi to Police Station Baroda where Harendra Singh lodged report of the incident, upon which, crime No. 29/1999 was registered and criminal law was set in motion. After registration of the FIR and completion of necessary formalities, all the three injured were sent for medical examination and their MLC was recorded. As condition of Ravindra was critical, he was referred to CHC, Sheopurkalan, where, during treatment he breathed his last on 2/3/99. The dead body was sent for post mortem examination which was conducted by PW4 Dr.A.K.Garg vide Ex.P/14.
During investigation, on 2/3/1999, PW7 P.N.Karare, Cr.A. No.783/2000 Cr.A. No.503/2003 (5) Investigating Officer reached the spot and prepared spot map vide Ex.P/2. He seized plain and blood stained soil from the spot vide Ex.P/3. Statemements of Harendra, Deepak, Amar Singh, Rajendra Singh were also recorded on 2/3/1999. Lathis were seized from Sitaram Meena, Rambilas, Sugriv, Ghanshyam Kumhar. Pharsa was recovered from Ramkaran. The seized articles were sent for FSL examination, upon which FSL report (Ex.P/32) was received. Thereafter Challan was filed in theCourt of JMFC, Sheopurkalan, whereupon Criminal Case No. 87/99 was registered. The learned Magistrate committed the case to the Court of Session, from where the case was made over to ASJ, Sheopurkalan for trial
3. During trial, the appellants abjured guilt and pleaded false implication due to animosity. In their examination, u/S. 313 of Cr.P.C. appellant Kailash Meena pleaded that Babu Singh and his sons had sown trees on his land and had falsely implicated him in theft of their Baffelos and that they wanted to grab his land. Appellant Hansraj pleaded that Kailash is the son of his uncle who is having property dispute with the complainant party and that is why he has been falsely implicated. On the occasion of Holi, he was out of Village Mudla. Simlarly, Ramkaran Meena has pleaded that he had got Kailash Meena released from police station in the said offence of Baffelos theft and that is the reason why Babu Singh and his sons were nurturing grudge against him. Likewise Ghanshyam has taken the plea that since he had always opposed the move of Babu Singh and his sons to grab the Government land situated in front of his house that is why he has been falsely implicated. Amar Singh has been examined as defence witness, who has deposed that when he was going to the spot, accused Ghanshyam Prajapati, Cr.A. No.783/2000 Cr.A. No.503/2003 (6) whose house is located midway was taking lunch at his home. He further deposed that when he reached the spot he had found Ravindra in injured condition and Harendra leaving the spot who was having injury on his leg. He did not see anyone else on the spot.
4. Legality and propriety of the impugned judgment has been assailed primarily on the ground of what is termed as mis-appreciation of the evidence on record. According to learned counsel for the appellants:-
i. No independent witness has been examined by the trial court despite the fact that several persons were present on the spot. PW-1 Harendra & PW-2 Deepu @ Dependra are real brothers of the deceased Ravindra, whereas, PW-3 Bablu used to work as a cleaner (helper) with Babu Singh, father of the deceased. Hence, they are all interested witnesses and PW1 Harendra and Deepu have also tried to conceal their relationship.
ii. PW-3 Bablu, the so called eye-witness, was never present on the spot and he is infact a planted witness. His real name is Phool Singh, but he has deposed in the name of Bablu before the trial court. Under such circumstances, the entire prosecution story is rendered doubtful.
iii. PW-4 - Dr. A.K. Garg has noticed three injuries on the body of deceased, whereas, there were nine assaillant. Even if one injury is attributed to each one of the assaillant, then the deceased should have received atleast nine injuries. Two miscreants are alleged to be armed with sharp cutting weapons, Cr.A. No.783/2000 Cr.A. No.503/2003 (7) whereas, no corresponding injury has been found on the body of the deceased. Dr. A.R. Khan- PW-6 has deposed that deceased has received injuries through hard and blunt object. As such, the ocular evidence is not supported by medical evidence.
vii. As per prosecution version itself Babu Singh, Amar Singh, Rajesh Singh, Satish and Raju Tripathi, who were independent witnesses, were present on the spot. However, none of them has been examined by the prosecution and only interested and related witnesses have been examined. No explanation has been furnished by the prosecution for not examining these independent witnesses.
viii. It has come on record that PW-1 & PW-2 were having animosity with many villagers and it is only because of such enimity that some unknown persons have killed the deceased, while the appellants have been implicated due to such animosity. No one was knowing the names of the appellants and it is only at the instance of Amar Singh that their names have been mentioned.
ix. The evidence of PW-1 Harendra, PW-2 Dependra is not trust worthy in view of the fact that had they been present on the spot and received injuries then their blood stained clothes should have been seized by the police, which has not happened. Clothes of the deceased have not been indentified. Under such circumstances presence of the said witnesses on the spot is doubtful.
x. Deependra @ Deepu, under intoxication, was teasing the women folk of the village who had pelted stones at Cr.A. No.783/2000 Cr.A. No.503/2003 (8) him. Similarly, stones had been pelted on Harendra by the villagers present in the temple leading to the injuries received by him. Even as per Doctor who has conducted the MLC probability of such injuries, which were simple in nature through stones has been expressed. Under such circumstances, it was not proved that such injuries were caused by the appellants.
xi. PW-1 Harendra & PW-2 Deependra were not knowing the names of the appellants and as such their evidence could not have been relied upon.
xii. The FIR has been lodged after much deliberations and consultations and with considerable delay.
xiii. Both the so called eye-witnesses have concealed about the original spot. No blood has been seized from the spot, which renders the prosecution story doubtful.
xiv. Seizure is not proved because the sole witness to seizure Bablu is a planted witness. Under such circumstances, the spot map is also not proved.
xv. The prosecution has not been able to prove, common object and common intention against the appellants, therefore, their conviction with the aid of section 149 of IPC is bad in law.
xvi. On the same set of evidence, prosecution has acquitted four accused persons while appellants have been convicted. The appellants were also entitled to acquittal as their case is at par with the co-accused who have been acquitted.
xvii. Family property dispute was prevelant between the appellants and the complainant party. Even if it is Cr.A. No.783/2000 Cr.A. No.503/2003 (9) assumed that they had caught hold of Deepu then also it has to be seen that no fatal blow was given to Deepu despite the fact that the appellants are alleged to be armed with weapons. As such, no mens rea can be inferred and the trial court has committed grave error in convicting the appellants.
xviii. The festival of Holi was being celebrated on the date of incident, but this fact has been concealed by Deepu. It is also come on record that on that day the complainant party, in drunken condition, was causing uproar in the village, due to which, they were beaten.
xix. It has not been proved that human blood was found on the clothes of the deceased and the earth seized from the spot. The prosecution has not proved that human blood was found on the seized weapons.
5. In response, learned Public Prosecutor, while making reference to the incriminating pieces of evidence, has submitted that the trial court has completely misdirected itself by acquitting the accused persons of the offence punishable u/S. 302 of IPC and convicting them only u/S. 304 Part-II of IPC. It is submitted that the trial court has found it proved that Ghanshyam Meena, Ramkaran, Kailash, Hansraj and Ghanshyam Kumar had assaulted Deepak after dragging him out of the bus and thereafter, Ravindra and Harendra were also assaulted leading to death of Ravindra, yet acquitted the accused persons of the offence u/S. 302 of IPC, which is totally against the evidence on record, with the aforesaid submissions it is prayed that acquittal of the accused persons of the offence u/S. 302 of IPC be set aside and they be convicted and sentenced accordingly.
Cr.A. No.783/2000 Cr.A. No.503/2003 (10)6. Heard learned counsel for the parties and perused the evidence on record.
7. Before appreciating the evidence on record, it would be worthwhile to advert to the medical evidence brought on record. The same is reproduced thus:-
MLC report (Ex. P/15) of the deceased Ravindra
1. Contused & diffused swelling on right eye 3 ½ x 2 cm all around the eye reddish
2. Contusion over right side of forehead obliquely 5 x 3 cm. Reddish colour. Underline bones suspected fracture.
3. Lacerated wound over right fronto parietal region of scalp oblique 7x1x1 cm blood oozing bone suspected fracture.
4. Lacerated wound on left parieto occipital region of sculp oblique5x1x1 cm blood oozing bony injury suspected fracture.
5. Lacerated wound on left palm dorsal aspect 3x1/2x ½ cm blood oozing . Bleeding from both naustral and mouth.
All injuries are caused by hard and blunt object within 24 hours of examination. X-ray advised for injury No. 2, 3 ,4 , 5 & 6. Injury No. 2, 3 & 4 are dangerous to life. Patient is referred to PHC for further treatment.
Postmortem report (Ex. P/14) of deceased Ravindra
1. Right eye contused diffused swelling 3 ½ x 2 cm all around eye reddish
2. Right side of forehead contused reddish obliquely 5 x 3 cm.
3. Lacerated wound right fronto parietal obliquely placed 7x1x1 cm with oozing of blood.
4. Lacerated wound left parieto occipital obliquely placed 5x1x1 cm with oozing of blood.
Cr.A. No.783/2000 Cr.A. No.503/2003 (11)5. Lacerated wound left hand dorsun of hand 3x1/2x ½ cm with oozing of blood. There is oozing of blood from both nostrils all injuries are antimortem in nature caused by hard and blunt object.
MLC report (Ex. P/16) of the injured Deependra @ Deepu.
1. Abrasion over right ear pinna, upper oblique 2cm x1/4 cm blood oozing
2. Abrasion over back of right ear 3 cm x 1 cm oblique red coloured.
3. Contusion over right arm anterolaterally oblique 5 cm x 2 cm red colour.
4. Contusion over right chest at right axilliary fold oblique 6cm x 2 cm red colour.
All injuries are caused by hard and blunt object within 24 hours of the examanition. Simple in nature.
MLC report (Ex. P/17) of the injured Harendra.
1. Incised wound over right parietal region of sculp oblique 8 cm x ½ cm x ½ cm blood oozing regular with clear cut margin.
2. Abrasion over right leg anteriorly middle placed vertically 2 cm x 1 cm.
3. Contusion on right knee above midiely oblique 5 cm x 2 cm reddish .
4. Bruish on right leg upper part anteriorly vertically 4cm x 2 cm reddish.
5. Contusion on right thumb at nails and middle phalanx dorsal aspect horizontal 3cm x 2 cm.
6. Abrasion on right ring finger middle phalanx laterally between little finger vertically 3 cm x 1 cm clotted blood present.
7. Contusion on 1 cm below right side midiely oblique 4cm x 2 cm.
8. Contusion on left leg upper third oblique anteriorly 6cm x 2 cm red colour.
Injury No. 1 is caused by hard and sharp object, rest of the injuries are caused by hard and blunt object within 24 hours of the examination. Nature of injury No. 1 was to be Cr.A. No.783/2000 Cr.A. No.503/2003 (12) given after observation and rest of the injuries were simple in nature.
8. Now we advert to the evidence on record in the backdrop of arguments put forth by learned counsel for the parties.
9. The credibility of the prosecution version has been assailed inter alia on the ground that no independent witness has been examined by the prosecution despite their presence on the spot and that the witnesses relied upon by the trial court are interested witnesses and hence not worthy of credence. It has been contended by learned counsel for the appellants that independent witnesses namely Babu Singh, Amar Singh, Rajendra Singh, Satish and Raju Tripathi have not been examined by the prosecution and, therefore, adverse inference should be drawn against the prosecution. However from the evidence on record, presence of these witnesses is not established. Under such circumstances, if the prosecution has not examined these witnesses then it would not render the entire prosecution story doubtful because it is well settled that when presence of some witness is not proved on the spot then their non-examination would not be fatal to the prosecution. The trial court has exhaustively dealt with this issue in paragraph nos. 78 to 80A and no illegality or irregularity is reflected in the reasoning of the trial court in this regard. So far as, the contention of learned counsel for the appellants is concerned that Harendra (PW-1) and Deepu (PW-2) are interested witnesses being brothers of the deceased, the same cannot be countenanced in view of the fact that they are also the injured witnesses. Hence, their Cr.A. No.783/2000 Cr.A. No.503/2003 (13) presence on spot cannot be doubted. For this reason only the contention of learned counsel that non-seizure of their blood stained clothes is sufficient to unsettle the case of prosecution, is also inconsequential, particularly in view of the fact that their version of assault on them is corroborated by medical evidence.
10. It is true that the trial court has found material contradictions and omissions in the evidence of Bablu (PW-3) and has found his testimony to be unreliable. The trial court in para 64 has found that in the First Information Report name of this witness has been mentioned as Bablu, whereas, his name as Phool Singh has come on record subsequently in his statement. His statement has been recorded with considerable delay and his evidence is fraught with material contradictions and omissions and as such his testimony to be untrustworthy. However, falsus in uno, falsus in omnibus is not the principle which is applicable in India and, therefore, just because major part of testimony of PW-3 has been held to be untrustworthy, it is not sufficient to completely overthrow the case of the prosecution in view of clinching medical and ocular evidence available on record.
11. The next contention of learned counsel that ocular evidence is belied by medical evidence also does not deserve acceptance. As indicated above, in the post mortem report (Ex. P/14) deceased Ravindra had received as many as five injuries. In the opinion of doctor, the cause of death was Coma as a result of head injury and all the injuries were homicidal in nature. Doctor has found the injuries to have been caused by hard and blunt object. Besides, the Doctor Cr.A. No.783/2000 Cr.A. No.503/2003 (14) also noticed fracture of frontal bone, right side of right parietal bone and depressed hematoma. It is the case of the prosecution that Hansraj has dealt a Dhariya blow on the head of Ravindra causing him to fall down. It is also come on record that the weapon of offence Dhariya was affixed to an iron pumpi (pipe), therefore, it can easily be deduced that some part of the weapon was hard and blunt. The trial Court has elaborately dealt with this issue in paragraph 113 of its judgment and this Court does not find any perversity in the finding of the trial court that it cannot be said with certainity that which part of the weapon had landed on the head of the deceased in view of the fact that the Iron Pipe on which Dhariya was attached was 4-5 ft long and the deceased and miscreants were in motion at time of assault. Dr. A.R.Khan (PW6), in his cross-examination, has deposed that though probability of injury no.2 having been received by the deceased due to fall or dash was there, yet for the same to crystallize, it was essential that the deceased should have fallen exactly in corresponding position and from a particular height. In paragraph 12 he has deposed that the injuries received by Ravindra could not be a result of stone pelting. However, he later corrected himself and said that if a stone of size equal to that of injury received, such an injury might be caused. Thus nowhere in his deposition, the doctor has conclusively opined that such injuries were received by deceased due to stone pelting. So far as the injuries received by PW1 Harendra are concerned, it has been deposed by the said witness that when he and Deependra came forward to save their brother Ravindra, Ramkaran had dealt a Gandasi blow on his head and Kailash gave a Lathi blow on right calf. Thereafter, Ghanshyam, Ramvilas and other four persons, whose names he did not know, assaulted with Lathi, Gandasi Cr.A. No.783/2000 Cr.A. No.503/2003 (15) and Dhariya. In his cross-examination, he has deposed that co-accused Sitaram, Sugriva and Ghanshyam Prajapati had assaulted him, but he could not tell that who assaulted on which part of the body. In paragraph 55 he has deposed that all the accused persons were assaulting simultaneously. From the MLC, it is proved that he had received one injury on head caused by sharp cutting weapon, while other injuries were received by hard and blunt object. Thus, the ocular evidence in this regard is supported by medical evidence. Similarly, the injuries received by Deependra are also corroborated by medical evidence to some extent, though his evidence is found to be a bit exagerrated, but on this sole ground his testimony cannot be discarded completely.
12. So far as the contention with regard to enmity is concerned, PW1 Harendra has deposed that an altercation had taken place a month back owing to boundary of agricultural field. As water from Kailash's field was flowing into his house, he had got a runnel dug on the bounary of his field, to which Kailash had objected. He has also deposed in paragraph 61 that there had been some dispute between his brother and Ramkaran on theft of buffalo. In sum and substance, this witness deposed about enmity with Kailash and Ramkaran due to land dispute and theft of buffalo. PW2 Deepu in his cross-examination has deposed that he had no dispute with Ramvilas, but was not aware if there had been some enemity between his father or brother and Ramvilas. He has also deposed about dispute with Kailash and alteracation of his brother Ravindra with Ramkaran owing to money transaction. He has also deposed that he had raised an objection with Ghanshyam Prajapati as sewage water of his house was being discharged into his field. He has further Cr.A. No.783/2000 Cr.A. No.503/2003 (16) deposed that Ghanshyam Prajapati used to dump garbage into his field. He has further deposed accused Sitaram and Sugriv, along with other Villagers,had come to his house on dispute of runnel. Thus, from the above, prevalance of enmity between the accused persons and the complainant party can safely be deduced. Besides, no positive evidence has been led by the defence to establish the enmity of deceased and his brothers with other villagers so as to substantiate their defence of attributing the offence to some unknown person.
13. It is contended on behalf of the appellants that PW1 Harendra and PW2 Deependra were not in a position to identify the appellants. A careful perusal of the evidence of these witnesses in this regard goes to show that they identified some accused persons by face while in case of others, they were aware of the names of their father. The trial Court after due appreciation of the evidence on record has righlty found that the evidence of these witnesses in this behalf is quite natural and does not suffer from any embellishment or exagerration.
14. So far as the ground of delay in lodging FIR is concerned, it is the case of defence that although the incident is alleged to have occurred at 11.10 a.m., yet its report has been lodged at 11.50 a.m. i.e. after a delay of 40 minutes despite the fact that distance between the spot and Police Station is hardly 2 kms. As per the case of prosecution, the injured persons were taken on Tractor to police station directly from the spot. However, delay of 40 minutes after such a ghastly and gruesome incident, is hardly of any avail to the accused persons and it cannot be presumed that the Cr.A. No.783/2000 Cr.A. No.503/2003 (17) FIR was lodged after deliberations and consultations. The finding of trial Court in this regard is impregnable.
15. The next contention of learned counsel for the appellants relates to alleged concealment of original spot by PW1 Harendra and PW2 Deependra. PW1 Harendra in his cross-examination has deposed that the incident had taken place near the agricultural field of Hajari Meena where a temple is situated and a hand-pump is installed by the side of the road. He deposed that he was assaulted near the hand- pump. The incident is alleged to have occurred nearly 8-10 feet from the Handpump. The said evidence is corroborated by the evidence of PW2 Deepu alias Dependra, as well as, that of Investigating Officer PW7 P.N.karare. Under such circumstances, the trial Court, in paragraph 140, has rightly found that the origninal spot has been concealed by these witnesses. So far as the seizure of blood stained earth from the spot is concerned, Investigating Officer PW7 P.N. Karare has deposed that he had seized plain and blood stained earth from the spot on 2/3/1999 and prepared seizure memo (Ex.P/3). PW1 Harendra has also corroborated the factum of seizure. No materal contradiction, in this regard, has been found in the evidence of the Investigating Officer, so as to render his testimony doubtful. Besides, factum of seizure cannot be doubted even in the wake of testimony of seizure witness Bablu having been found unreliable, as it is well settled that merely on account of seizure witness turning hostile or not supporting the prosecution case, the entire prosecution story cannot be thrown overboard if the testimony of Police witnesses who conducted search, seizure, arrest, recovery or discovery is found to be trustworthy. In the case in hand, the defence has not been able to elicit any material Cr.A. No.783/2000 Cr.A. No.503/2003 (18) contradiction or omission in the evidence of Investigating Officer in this regard, therefore, this contention of learned counsel also cannot be countenanced.
16. Further, the contention of learned counsel that section 149 is not attracted to the fact situation in hand is again misconceived and dehors the evidence on record. Moreover, the contention of learned counsel that on the same set of evidence, four other accused persons have been acquitted and that benefit should also have been extended to the convicted appellants is also devoid of any merit and substance, inasmuch as it was not disputed that names of the accused persons, who have been acquitted, were not mentioned in the FIR. Later, during investigation, it had come on record that the names of accused persons whom PW1 Harendra was not knowing, were disclosed to him by his brother Deepu alias Deependra. It has also come on record that at the time of lodging of FIR, Deepu was also present along with Harendra. The trial Court, in paragraph 198, has rightly held that if complainant Harendra was not aware of the names of those four accused perons, he could have easily asked Deepu at the time of recording of FIR. The evidence of Deepu alias Deependra, on this point, was found to be inconsistent having material contradictions and omissions. Deepu alias Dependra, in his cross-examination, has deposed that accused Sitaram was a milk vendor who regularly used to visit his house. He was aware of his father's name. The trial Court rightly held that it was highly unlikely that Harendra, who was the real brother of Deepu alias Deependra and residing in the same house, did not know the name of their milk vendor. So far as accused Sugriv is concerned, material contradiction has been found in the evidence of Harendra in this regard, who admitted to have Cr.A. No.783/2000 Cr.A. No.503/2003 (19) entered into an altercation with Surgiv few days prior to the incident. Under such circumstances, not knowing the name of Sugriv by Harendra, also cast serious doubt on his complicity in the incident. Under such circumstanes, the trial Court found that said four accused were entitled to benefit of doubt, and no perversity can be attributed to such finding which is based on proper appreciation of evidence on record.
It is well settled that non finding of human blood on the weapon of offence is not sufficient to render the entire prosecution story doubtful because, at times, due to hematological changes such determination is not possible. As such, the appellants cannot claim any mileage on this count. Further, the trial Court has found that Deepu in his police statement had revealed that the miscreants had assaulted under the guise of playing Holi. PW7 P.N. Karare has corroborated the evidence of Deepu in this regard.
17. Thus, from the above, it can be safely deduced that there is no illegality or perversity in the findings recorded by the trial Court. The learned trial Judge in 161 pages has threadbare examined and appreciated the evidence on record. In paragraph 211, the trial Court rightly held that in the wake of only one injury on the head of deceased, the element of premeditation to cause murder of the deceased was ruled out and the offence falls under section 304 Part II of IPC instead of section 302 of the IPC, as the appellants were not aware that the injury which was being caused was likely to cause death in the ordinary course of nature. The trial Court also found that the prosecution had not been able to establish its case against co-accused Ghanshyam Prajapati, Sitaram, Sugriv and Sitara. Their names were not mentioned in the FIR. Later on during investigation, the manner in which Cr.A. No.783/2000 Cr.A. No.503/2003 (20) their names have been introduced in the offence, also does not inspire confidence as the testimony of prosecution witnesses in this regard is rife with contradictions and omissions. Accordingly, the trial Court acquitted the aforesaid four accused persons. As such, this Court does not find any illegality or perversity the findings of conviction and acquittal recorded by the trial Court. The same are hereby affirmed.
18. This brings us to the question of sentence. It is submitted on behalf of the appellants that only the offence of 304 Part II has been found proved against the appellants. The incident was not pre-planned. The appellants have suffered trial and appeal for last more than 18 years and, therefore, it is prayed, that the sentence may be reduced to the period already undergone. In this regard, judgments of the Apex Court in the cases of Mohinder pal Jolly Vs. State of Punjab (AIR 1979 SC 577(1) and Yogendra Morarji Vs. State of Gujarat (AIR 1980 SC 660) have been pressed into service, wherein the Apex Court has reduced the custodial sentence to that already undergone with enhancement in fine amount.
It is true that a considerable period of more than 18 years has already elapsed after the incident in question and meanwhile, the appellants have already suffered imprisonment for 22 months. As such, no useful purpose would be served by sending the appellants back to jail for undergoing remaining part of sentence.
19. In the result -
(i) Cr.A. No.783/2000 is allowed in part. The convictions of the appellants in Cr.A. No.783/2000, as awarded by the trial Cr.A. No.783/2000 Cr.A. No.503/2003 (21) Court, are hereby maintained. The consequent sentences, except that for the offence under section 304 Part II or 304 Part II/149 of the IPC, are also maintained. However, for the offence under section 304 Part II or 304 Part II/149 of the IPC, the appellants are sentenced to the period already undergone by them, but the amount of fine is enhanced from Rs.2000/- to Rs.10,000/- payable by each one of the appellants, with the stipulation that in default, the appellants would suffer imprisonment for a period of six months. In case of realization of fine, half of the same be paid to the widow/legal representatives of the deceased as compensation. Needless to say that the amount of fine already deposited shall be adjusted against the fine hereby enhanced.
(ii) For the foregoing reasons, being devoid of merit and substance, Cr.A. No.503/2003 preferred by the State against acquittal of the accused persons stands dismissed.
Appellants in Cr.A. No.783/2000 are on bail. They are directed to appear before the trial Court on 25/6/2018 for depositing the enhanced amount of fine or for being committed to custody to suffer the default sentence.
(Sheel Nagu) (S.A.Dharmadhikari)
Judge Judge
(and)
Digitally signed by
ANAND SHRIVASTAVA
Date: 2018.06.19
18:37:56 +05'30'