HIGH COURT OF MADHYA PRADESH, BENCH INDORE (Division Bench: Hon'ble Shri SK Seth and Hon. Shri M. C. Garg, JJ. ) ____________ Cri. Appeal No. 12 of 2005 Bhayela son of Vestiya Bhil aged 30 yrs; resident of village Sakdi Faliya, Chandpur, District Jhabua (MP) ...... Appellant Versus State of MP through Police Station Chandpur, Distt. Jhabua (MP ... Respondent. ________________________________________________________________ Mr. Jaisingh Sr. counsel with Mr. Rajesh Chouhan, learned counsel for appellant. Mr. Deepak Rawal,Government Advocate for respondents./State _________________________________________________________________ J U D G M E N T (Delivered on this the 10th day of November, 2011) Per M. C. Garg, J. The appellant/accused has filed this appeal being aggrieved by the impugned judgment and order of conviction dated 1st October, 2004 delivered by 2nd Addl. Sessions Judge, Alirajpur ( Distt. Jhabua) in Sessions Trial No. 333 of 03 whereby the appellant has been found guilty of the offence under sec.302 of the Penal Code and sentenced to undergo Life Imprisonment. 2. The present appellant was sent for trial along with two other accused persons namely, Kerliya and Indriya by Police Officials of Police Station, Chandpur for having committed murder of one Chhagan on 26th April, 03 by shooting arrows at about 3.30pm. As far as accused Kerliya is concerned, he has been acquitted of the charge/s levelled against him, whereas accused Indriya has been declared as a proclaimed offender. 3. In brief, the prosecution case is that on 26th April, 03, complainant Desingh (PW-2 ) and his younger sister Raidi (PW-3 ) and Chhagan son of Bhoongra ( deceased ) had gone to attend the marriage of the daughter of Gulsingh. At about 3.30 pm. when all of them were at the house of Mangla (PW 4), some discussions took place with regard to dancing. At that time accused Bhaila shot an arrow at Chhagan which hit on the chest of Chhagan and pierced inside the chest. On this Chhagan started running. He was chased by accused Kerliya and Indriya who also shot arrows which hit Chhagan on his back. Thereafter Chhagan fell down near the Well and after some time Chhagan died. According to Desingh the alleged incident was also witnessed by Praveen and Govind. On the basis of the aforesaid statement, the first information report of this case was registered at Police Station, Chandpur on 26th April, 03 at about 4.45 pm which is Ex. P. 1. 4. The present appellant and accused Kerliya were arrested; an inquest memo of the body was prepared and thereafter dead body of the deceased was sent for postmortem examination. Dr. Prakash Dhoke conducted the post mortem on the body of Chhagan and gave an opinion that the death of Chhagan was the result of an Arrow injury to the vital organ ( heart and lung) sustained by him , which was ante-mortem in nature and homicidal and was sufficient to cause death of the deceased in ordinary course of nature. Dr. Prakash Dhoke has found the following injuries:- External Injury:- Penetrating wound over lateral aspect of chest (Lt.) side 3x1cm. X deep upto thoracic cavity with Iron made arrow inside the wound; Internal Injury:- (i) left lung punctured and collapsed. (ii) Heart punctured from left side. (iii) Thoracic cavity full of blood. Except the aforesaid injuries, no other injury was found on the body of deceased. 5. After completion of investigation, a charge sheet was filed before Judicial Magistrate First Class, Alirajpur, who committed the case for trial to the Sessions Judge. 6. The learned Addl. Sessions Judge framed the charge/s against the accused persons. Accused pleaded not guilty. The prosecution was allowed to lead evidence. Prosecution has examined as many as nine witnesses to prove its case, out of whom PW-1 Dhundhariya, PW-2 Desingh, PW-3 Raidi, PW-6 Motli, PW-8 Dhudhla claim to be the eye witnesses of the alleged incident. PW-5 Dr. Prakash Dhoke conducted the post mortem on the dead body of Chhagan. PW-9 BK Chhari is the Investigating Officer. Other prosecution witnesses are formal. No defence evidence was led. 7. The learned Addl. Sessions Judge on the basis of evidence on record and relying upon the documents proved by the prosecution, arrived at the conclusion that on account of the Arrow injury caused by appellant which was sufficient in ordinary course of nature to cause his death, as opined by Dr. Prakash Dhoke,PW-5, appellant was guilty of committing murder of deceased Chhagan under sec. 302 of the Penal Code and sentenced him to undergo Life Imprisonment besides fine of Rs.250/-, in default to further undergo for a period of one month. The appellant was also granted benefit of sec.428 of Cr. P.C., as he was in judicial custody since 28th April, 2003. As far as co-accused Kerliya is concerned, since there was no evidence available on record to prove beyond reasonable doubt that accused Kerliya caused injury to Chhagan on his back by shooting Arrow, accused Kerliya was acquitted of the charge/s levelled against him. 8. Perusal of the impugned judgment goes to show that, learned Sessions Judge has relied upon the testimony of Desingh (PW-2) who is not only an eye witness but also FIR maker. Desingh PW-2 deposed that he knew Chhagan, who was his brother. He also deposed that about 7-8 months ago when he had to attend the marriage at the house of Gulsingh in their own village, located near their own house, the appellant and Indriya ( proclaimed offender ) and co accused Kerliya also came to attend the marriage. Accused persons were armed with Bow and Arrows. He deposed that Bhaila gave an arrow shot aiming Chhagan which hit on his chest. Co-accused Kerliya also gave an arrow shot to Chhagan which hit on his back. Similarly Indriya also gave an arrow shot which also hit on his back. He also deposed that after sustaining arrow shorts, Chhagan after running some distance, fell down and died at the spot. Appellant and other two accused persons ran away from the spot. He further deposed that intimation with respect to aforesaid incident was given to Dhundhariya and Dhundla, thereafter they came on the spot and after seeing the dead body of the deceased they went to the Police Station and reported the matter. Similar is the testimony of Raidi ( PW-3), sister of the complainant as also that of Dhundhariya (PW-1). 9. As regards medical evidence, Dr. Prakash Dhoke (PW-5) conducted the autopsy of the body of deceased Chhagan and proved the autopsy report Ex. P. 2. According to his statement, he has found the external as well as internal injury as described aforesaid in para -4 of the judgment. According to the Dr. Prakash Dhoke, theinjuries found on the body of deceased Chhagan might have been caused 24 hours before the post mortem examination. Dr. Prakash Dhoke also deposed that the death of Chhagan was the result of an Arrow injury to the vital organ ( heart and lung) sustained by him , which was ante- mortem in nature and homicidal and was sufficient to cause death of the deceased in ordinary course of nature. 10. In so far as the intention of accused persons in having causing injury to deceased Chhagan , learned Addl. Sessions Judge has fully relied upon the testimony of Desingh and Raidi PW-3 who have categorically deposed that in their presence appellant Bhaila gave an arrow shot to deceased Chhagan resulting in his death. In so far as other witnesses are concerned, namely PW- Dhundhriya, PW- Mangla, PW Motli and PW-Dhundla, the learned Addl. Sessions Judge has discussed their evidence elaborately and recorded a finding that these witnesses had not seen the actual incident as they reached at the spot later on. However, relying upon the testimony of Desingh, Raidi and Dr. Prakash Dhoke, the learned Sessions Judge arrived at the conclusion that the present appellant Bhaila is the only culprit who gave an arrow shot aiming at deceased Chhagan. 11. Learned Sr. Counsel Mr. Jaisingh, appearing for the appellant, has assailed the impugned judgment and conviction primarily by submitting that the prosecution case is wholly unbelievable, in asmuch as, injuries on the person of deceased were caused by three persons which is the prosecution case. Learned counsel submitted that complainant himself had talked about the injury caused to the deceased by three accused, whereas as per post-mortem report, only one injury was found on his body. It has also been submitted that Desingh (PW-2) in his cross examination has admitted that he had given the names of two other witnesses namely Praveen and Govind only as a matter of precaution so as to fasten the liability on the appellant and even this part of the statement of this witness was not believed by the court. Learned counsel also submitted that the other witnesses have also deposed that injuries were caused to the deceased by three persons, whereas, only single injury was found on the body of deceased Chhagan, which goes to show that the testimony of all the eye witnesses is not trustworthy. Learned counsel further submitted that as per testimony of Dhundariya and Dhundla, they had gone to the Police Station and infact they also lodged the report, but the said report was not brought on record by the prosecution which also caste doubt on the prosecution story. 12. Learned Sr. Counsel also submitted that prosecution is required to prove its case beyond reasonable doubt. It is for the prosecution to clarify each and every aspect. He submitted that merely because some witnesses have deposed against the appellant, would not prove the prosecution case, rather would give benefit of doubt to the defence. 13. On the other hand, learned Government counsel submits that even though there is a mention of three persons causing injury to the deceased, it is a consistent case of the prosecution witnesses that the fatal injury was caused on the chest of the deceased and that also by the bow. As far as the role of the co-accused persons are concerned, even if all the statement of the witnesses are considered, arrows were shot on the back of the deceased which had not caused injury as per doctors report. Thus, it cannot be said that merely because other co -accused also tried to hurt the deceased, the appellant is not guilty of the charge. It is submitted that the allegations made against the appellant by Desingh, and his sister Raydi Bai coupled with the statement of PW-1 Dhundhariya is consistent and clearly prove the case of the prosecution and that the judgment of the trial Court is based upon cogent evidence. The evidence prove the guilt of the appellant beyond reasonable doubt. It is further submitted that the injury which has been caused by the appellant has been found to be sufficient to cause the death of the deceased in the normal course as opined by Dr. Prakash Dhoke (PW-5). 14. Some over consciousness on the part of the complainant Desingh will not discredit the relevant part of his testimony i.e. causing injury on the chest of the deceased by the appellant for which there is no evidence to the contrary. It is nobody's case that any other person has caused the injury sustained by deceased Chhagan. 15. In our considered view the testimony of the witnesses Desingh and Raidi to this extent stands duly corroborated by the medical evidence and cannot be disbelieved. The learned Addl. Sessions Judge has rightly relied upon the available evidence on record in holding the present case as covered by the second explanation of Section 299 of IPC which is a case of culpable homicide amounting to murder. The judgment of the Apex Court reported in AIR 1981 SC 765 ( Shankarlal Gyarsilal Dixit v State of Maharashtra ) and relied upon by the learned Sr. Counsel relates to the principles which govern cases dependent solely on circumstantial evidence. The present case is clearly distinct as there is availability of direct evidence ( eye witness testimony) which relied upon for conviction of the appellant and hence the judgment of the Apex Court is of no consequence. 16. In the alternative, learned Sr. counsel appearing for appellant submitted that in any event , in this case, the deceased had suffered a single vital injury which has been caused suddenly after a dispute arose between the parties regarding dancing and, therefore, it was not a case of premeditated murder or injury having been caused predetermined mind to cause the death of the deceased. Thus learned sr. counsel submitted that the conviction of the appellant could have been under sec. 304 Pt. II of the IPC. 17. He relied upon a judgment delivered by Hon. The Apex Court in the matter of Laxman v State of MP ( 2006 Cr. L. R. (SC) 845 ), wherein in such cases where the death had occurred on account an arrow shot which hit the deceased, as has been established by the ocular evidence of eye witnesses. The Apex Court had converted the conviction awarded to the appellant from Sec.302 to sec.304 Pt.I of the Penal Code and thus reducing the custodial sentence from Life Imprisonment to the sentence of 10 years. The relevant discussions which occurred in that case considering the facts of the case in para 21 and 22 which reads as under :- “21. The fact situation shows that arrows were being shot from a distance not with any accuracy. One of such arrows hit the deceased. As established by the evidence of eye- witnesses the appellant had shot that arrow. There was no sudden quarrel as stated by the appellant. The evidence shows otherwise. 22. Considering the background facts as noted above, appellant has to be convicted in terms of Section 304 Part-1 IPC and not in Section 302 IPC. The conviction is accordingly altered. Custodial sentence of 10 years would meet the ends of justice.” 18. However, in the facts of present case, the Arrow shot aimed on the deceased with accuracy and force enough to penetrate deep so as to cause death of the deceased in the ordinary course of nature. It also appears that the shot was aimed from a short distance and thus these factors considered in toto by the learned Addl. Sessions Judge held established that the appellant intentionally caused such bodily injury knowing that it would result in death of the deceased in the ordinary course of nature. The judgment relied upon by the learned Sr. Counsel is of no consequence in asmuch as it discusses and considered a case where arrows are shot from a distance not with any accuracy as clearly distinguished from the established facts of the present case. 19. In view of aforesaid discussions, we find no infirmity in the impugned judgment delivered by Addl. Sessions Judge. Consequently, the appeal is dismissed. ( S.K. Seth, J. ) ( M. C. Garg, J. ) Dlr/