IGH COURT OF CHHATTISGARH BILASPUR N x Division ‘Bench‘ endra M ndra Mohan shrivastava Ho an ishra & ’ble 8hr! M riminal A ea! No.977 or 1993 k Bahadur Singh and othem APPELLANTS X RESPONDENT X Stéte of MP, (now C.G,) ilment for consideratio. a n dra Mohan Shrivastava on’bie shri Dhirendra Misha \g Post for pmnouncement ofjudgment 1L 1 DHIRENDRA Mlsmm JJ. H HIGH COURT OF CHIATTISGARH : BILAsPUR Criminal Appeal No.977 of 1993 Criminal Appealu/S 3’74 of the Cr.P.C. / Present: Shn' Rnmakant Pandcy, counsel for the appellant. Shri M.P.S. Bhah'a, Dy. Govt. Advocate for the State] respondent. Division Bench: Hon’ble 3m Dimendra mum o Hon’ble' shri Manindra Mohan Shrimtava. JJ. J 'U D G M E N T (Delivered onQ )SJanuaIy, 2010) Per Manlndra Mohan Shrivastava, J. .a'This criminal appeal is dimcted against the judgment of conviction and order of sentence dated 27m September, 1993 passed in S.’I‘. No. 150/ 1990, passed by Ieamed 7‘h’Additiona1 Sessions Judge, Bilaspur, by which the appellants have been found guilty for commission of oEence under Secn'on APPELLANTS: 1. Rahadur Singh, son of Gangamm Yadav, aged about 22 years 2. Ganga Ram, son of Bhulan Yadav, aged about 55 .yeaxs; 3. Mahethar Ram , son of Gangaram Yadav, aged about 25 yrs 4. Smt. Manhmwar wife of Gangamm Yadav, aged about 45 yrs 5. Babulal son of Gangamm Yadav, aged 20 years All resident of Village- - Bokerel, RS. Malkharoda, District- Bilaspur, M.P. (now C.G. Versus RESPONDENT: The State of M.P. (now 0G.) @ 148 8a 302 read with Section 149 of the IPC and have been sentenced to undergo R.I.’ for 2 years under Section 148 of the IPC and life imprisonment for commission of on‘ence under’Section 302 mad with Section 149 of the IPC. 2. Dun'ng pendency of appeal, appellant No.4- Smt. Mankunwar died and ;i v statement to this eEect was earlier made on 29.8.2005. Learned counsel'for the State was directed to verify and at the time of hearing of this appeal, he stated upon veridcation that she so died. Appellant No.5- Babulal has also undergone the sentence imposed upon him and he was directed to be released by this Court vide Older dated 29.8.2005. 3f. The case of the prosecution, is that one Aghorilal lodged hrst infonnation / report at Police Station— Malkhoroda on 29.9.1988 that in the morning at 7:00 a.m., when Sakara Bai and her daughter Laxmin Bai had gone to throw the garbage, they saw that appellant-Bahadur and others were beating deceased Guharam with lathi, upon which they rushed back to ‘ their house and informed him. Thereafter when he rushed to Dabaripar and was standing there, he found Guhamm lying dead and appellants Bahadur, Gangaxam, Mehethar were standing with lathi. Thereafter he came hack and called Horilal in the deld and after his arrival they went to the house of appellant —Bahadur. Seeing them Bahadur went inside his house. He found that Guharam had died and due to deep head injury, blood was oozing. He also saw 3~4 injuries on his neck under chin which was also bleeding. He also stated in FIR that a day before he had asked Bahadur not to indulge in gambling, upon which Bahadur had beaten him, the report of which was lodged by him 1n Police Station Malkhamda and then he returned home at 11 30 m the night It has also been stated m the FIR that Guhamm had also accompanied him for lodging the aforesaid report and because of this appella‘nt-Bahadur and others have murdered his brother—Guharam. go Intiman'on of merg was recorded vide ’Ex.P—21 by B.R. Mandavi (P.W.13), Sub Inspector. Inquest over body of the deceased was prepared vide Ex.P~4 in the presence of wiinesses and thereaiter the body was sent for autolasy vide EXP. 12. From the place of incident, blood stained soil and pi sl was seized in the presence of witnesses vide XP-1. cluas lan oi E A bw seid m the place of incident vide EXP—2.. ne Lng wor by the decease was also seized vide Ex.P—7. 0n memorandu of appellan Bahulal a clu was seized h‘om hjm vide EX-6 in the resence f Witnesses. On the emorand f appellant —Bahadur Singh,’ cub was seized nom him n the presence of witness vide XP-8. One Tang (axe) was seimd nom appellant-Mehethar vide EXP-9 d a club was seize om / Babull vide EX—5. ide Ex.P- 10 one White sando baniya ontaining 3 blood like stains as ize nom appell— ar Singh. Map of the spot of xP—ll was prepaied y Patvvaxi- Prasad Tiwari (P.W.9)‘ of village —Fagur ostmortem report f Ex. ‘12 dated 30.9.1988 prepared by Dr. Jaisingh Sahu (P.W. 10) disclosed that bloo wa oozin out n‘o he . ee b; mandible and auxiliary bone were broken. lood staied the whole fe, ear, neck and chest. Following injues ere found on the body of the deceased. Four lacerated wound at scalp One punctured wound at chin below. One abrasion at left cheek. Fracuned frontal bone of scalp mandible, niaxilla, trachea cartilage right side 2, 3, 4, 5, 6 ribs and cervical bone dislocated. $0010l-I a 4. Seized club and soil were sent for examination to the Asst. Surgeon, P.H.C. Malkharoda vide Ex.P-13A and vide report Ex.P- 13, it concluded that clot-he i.e. Iungi had blood stain at one side. A club (bamboo Iathl) seized and sent for examination to Dr. Jaisingh Sahu (P.W. 10), who opined that the Iaihi ze m O ui e d m t b P p 0 mum o a l i es E i i an d n a P V n c w sed ant Bhadu d b Omkar am. P o P d s g m t mouth and the head of the deceased-Guhamm. Tth were found roken B n ac ri w may cause death of deceased. Lathi seized mm appelhmt -Babula1 on his memorandum was sent for examination vide P- 15A and vide mpoxjt 9f Ex?— 15 it was found that the lathi sent may- cause death of person Guharam. Vide Ex.P16A Baniyan seized non) Bahadur was sent for examination and in its report, it was opined that the Baniyan contained blood spots. Seized lungi, soil, lathi and Baniyan wcm sent for examination to Forensic Science Laboratory, Sagar and vide its report of EXP-22 Aru'cles Earth, Limgi, lathi‘ 'Bam'yan as lathi whioh Were ‘marked as A, C, D, E and F were found bloo& g stained, 'WheEas plain soil marked as article ‘B’ was not found blood stained. Report of Serologist (EXP-23) stated that item No.41 (earth) 42 (lungi) were found stained with human blood, whereas the blood stains on, item No. 43 (lathii, 44(Baniyan) and 45(lathi) were found disintegmted and/ 1? their orig'n could not be determined. However, the‘blood youp of the stains :8: on'item noted could not be determined as item No. 41 and 42 ie. emth and lungi respectively were not found su$cient for its examination. Item No. 43, 44 and 45 were found to be disintegrated . After completing usual investigation, the Investigating Agency prepared chalan and the same was med in the Com of Additional Chief Judicial Mag'sttate, Bilaspur, who in turn committed the case to the Court of Sessions Jude, Bilaspur. The learned Sessions Judge made over the case to 7 4*1‘ Additional Sessions Judge for trial. The learned trial Court framed charges against each of the appellants for commission of od‘ense under Secn'on 148 8r, 302 read with Section 149 of the IPC. The appellants abjured their guilt . Prosecution examined m all 13 Wltnesses In their examination under Section 313 of Cr.P.C., the appellants pleaded innocence and stated that they have been falsely implicated Appellants Babulal, Bahadur, Gangaram stated that in the morning there was a talk that Guharam died whereupon police arrived at the spot and they pleaded that they did not know what ‘ ' happene in the nigt ad they did nt kno nything nd the incident d h n o w a a might have happened in the night and therefore noody has wissed. b tne . The learned nia Court reling upon the testimony of Sakar a (P.W.1) and Laxmin ai (P.W.2) as eyewimess of he incident nd pon oof of seizure of athi an tangi (axe) nom the accused persons and also taking into consideration the prompt FIR and further relying pon the testimony of mrddin K RW. 11) that there ws a quarrel a day before'the dae Kau han ( a t of incident between Aghori L bmther of decease and pellant Bahadur a], d ap , held the appellants guilty o commission o the d‘enw under Section 148, , f f o 30 mad with Section 149 of the IPC ad sentence them accordgly. 2 n d in . Learned \counsel for the appellants assailed the impugned judgment by’ arguin that the s s illegal and unsustainable in l. t has een g ame i aw I b argue that the ilxne trial Court has grossl cared n holding the d ead y i appellants guilty by rlyin upo he testiny f Saha Bai (P.W1) and eg n t mo o ra . Laxmin Bai (P.W.2) Which does not inspite confidence on account ,of material conadctions and omissions and that te ame has not been tri h s he pc s a bn ’ supported by otr roseution witnesses. It ha lso ee argued that / there was no motive n the part of the appellants o cause death of o t deceased Gnharam. It was further contended that the case of the prosecution is liable to be disbelieved as the prosecution has failed to prove beyond reasonable doubt that the appellants caused death by inflicting injury on deceased Guharam. I-le submits that ocular testimony is liable to be disbelieved as the same is belied by medical evidence. He anther submits that seizure of tangi (axe) has not been proved. Aghorilal and person namely Horilal, husband of Sakara Bai and her father-in—law 'who a: had arrived at the spot oncall made by Sakara Bai were not examined. He submits that the entire case of the prosecution and lodging of FIR itself is ‘ under serious doubt on account of non-compliance of Section 157 Cr.PC. as the pmsecuu'on has failed to prove that a report as contemplated under I‘ l y a Bt B es t a u pr l d u 5 Section 157 (1) of Cr.P.C. was sent to the Magisnam’ empowered to take cognizance on such oo‘ence upon a police report. Acconiing to him the appellants have been falsely implicated in the crime in question. . On the other hand, learned counsel for the State/respondent has supported the impugned judgment and argued that the judgment of conviction and sentence is based on trustworthy and creditworthy testimony of eyewitnesses namely Sakara Bai (P.W.1) and Laxmin Ba1 p (P.W.2) which is supported nom other circumstances i.e. seizure of oKending weapon n-‘om the accused persons and nom the proved fact and circumstances of enmity between the part'es in View of quarrel between appellant —Bahad_ur and the brother of deceased a day behm the incident. L He submits that medical evidence fully supports the case of the prosecution ‘ and proves homicidal death of deceased Guhamin caused by accused with the help of onending weapon like Iahti, iangiya (axe) and thexefom the , impugned judgment of conviction and sentence does not warrants any interference by this Court in appeal.’ ., We have heani learned counsel for the parties and have also perused the recoids of the case. Homicidal death of deceased Guharam is no disputed. Even otherwise it has been pmved by Dr. Jaisingh (P.W.10) that deceased Guhamm sustained various injuries on his person and because of excess bleeding and obstruction in windpipe succumbed to death which was homicidal in nature. 12. Sakara Bai (P,W.1) in her depOsition befoxe the Court has clearly deposed that at about 7 00 m the morning while she was gomg along With Laxmm Ba1 she heaui Guharam crying He was being assaulted and they saw that appellant Bahadur was holding Farsa (axe), Mehathar was holding tangi (axe) and.Babulal was holding a club. Koshil came out with two clubs nom her house, one of which was given to appellant—Gangaram and other to ‘ 11. ’ I appellantMawar. Se esed at all the ac’cused ersons e -nlmn h dpo th p wer ’ assaulting Guhar with the help of weapon they were olding a when am h nd she asked the ppeas not to assault, she was also abused. he ran away to call her huSband Horilal and afte that her father-in-law and son ca there. Appellant— Bahadur told her that he has murdered Guhara nd sh m a e may call her husband who would also be muered. She further eposed “that injur as aused o te head of ara by .Farsi (axe) thereafter her sband and father-in-law also arrived at the spot. Aher the incident, hu d t s accuse persons went inside heir houe. ’ Sh a been subjected to incisive and tailed cross-exmination. She has stated that on account njury aused by B wit the hel of i c ahnrlur h p of Farsi (axe) uharam receive ead injury. She furthe deosed tha G d h r p t Mehethar assaulted with the help of tangi on the face of th deceased. Sh e e also states that Laxin Bi w present it her. v ’ . m a as wh ‘ . Laxmin Bai .W.2) as fully suppted th ca f th prosution nd h (P h or e se o e ec a as narrated about the icient. She as deposed th she ed Guhaxa’ nd h at har m crying hat Bahadur is sslting him. She sa that apellant ~Gangara and Mankunwar had caht h of hands of decead while pllant' - ug old se ape Bahadur asslte the decead with Farsi (axe). Aea-Mehethar aud se ppllnt assaulted with tangi (axe) on his face d appellant-Babulal c out wit‘ an ame h lathi and inflicted low n the head o the eceased. Wheth were s " b o f d n’ey o assaulting, appes Gangara nd Maunwar left hands of h llant m a nk the te deceased n starte assauln‘g deceased wth the help of Iath (club) Which was brough by accused Kohil. When she aproached t save ad d ‘n i i Guha appellant Gangar an Mankunwar told her that sh a ram s am d e my also co and she wld also be po w she not proceed me ou be at Un h1ch did further. In her detailed cross-examination, he ha stated hat marpit went on ' for about alf an hour. She as clearly deposed that appellan— angaram allnt S ’ r me rd d y w c n h Guhm e hs de a y t aau w ps m t us p o s s t h h t G caught hold of one hand of Guharam and other was held by appellant Mankunwar. Appellant-Bahadur came horn his house and assaulted with Farsi. Thereafter Mehethar also came out with tangi (axe) and assaulted followed by Babnlall who came out with club and assaulted, Whemupon Guharam fell down. She has also stated that Aghori, her father had gone to lodge the rreport in the police station as she namted the incident to her father and at that time Sakara was also there. From‘the testimony of Sakam (P.W.1) and Laxmin (P.W.2), it is clearly proved that a]l the accused persons assembled at the place of incident one by one and surrounded deceased Guharam. They were armed with deadly weapon like favsa, tangi and also club. . B.R. Mandavi (P.W.13), Sub-inspector has stawd that a club was seized n‘om Bahadur vide Ex.P~8, whereas a tangi (axe) was seized hem Mehethar vide EXP—9. Ramprasad (P.w.6) has proved seizure of club horn Bahadur in which an iron hook was fastened. One club was also seized h‘om Babulal Vide EXP-5. Padum (P.W.4) is a Witness of seizure of club n‘om Babulal, he - deposed that club was seized hom Babulal. Manimm (P.W.5), Kotwar also 3» deposed that a Kalan' (bamboo) was seized hum appellant -Babulal which contained an iron hook. . From the testimony of aboveprosecution witnesses, it is esmblishcd that all the accused persons armed with deadly weapon and club had assembled and gathered around the deceased Gnharam. From the prosecution eyewitnesses namely Sakara Bai (P.W.1) and Laxmin Bai (P.W.2) it is proved that injury wasinilicted with the help of lathi and other weapon on - ,4 the deceased Guharam. It is relevant to state that‘the testimony of these two eyewitnesses further proves that appellants Bahadur and Mehethar ’ remained present at the spot all along during’the period when injury was inhicte'd on deceased Guharam and appellants «Gangaram, Babulal and / . Kl Mankunwar had assaulted him. Sakara Bai (P.W.1) also deposad that appeHant-Bahadur told that he has committcd mmder of Guhaxam and she may call her husband who would also be murdered. She also says that when she approached at the place of incident to save Guhamm the accused persons abused her. Lamjn Bai (P.W.2) stated that when she/ approached ‘to save Guharam, accused Gangamm and Mankunwar challenged her to come so that she may also be assaulted. Her testimony also proves that Gangaram and Manunwar caught hold hands of deceased Guharam. 17. Dr. Jaisingh Sahu (P.W.10) who conducted autopsy and has proved the Ieport of EXP—12 has deposed that mouth and nose was bleeding and following injuries were found by him Four lacerated wound on the scalp One punctuxed wound at chin below; One abxasion at left cheek. Fxactured, nontal’ bone of scalp mandible, maxilla, trachea cartilage right side 2, 3, 4, 5, 6 ribs and cervical bone dislocated. wélotI— In para-2 of his testimony, he further deposed that injuries as tar Tr w and a were caused by haid object whereas injury i caused by poinmd and l sharp edged weapon. Details of n‘actures were also described by him in para—3 of his testimony. In his opinion, the cause of death was excessive bleeding and choking caused due to obstruction in windp'me. t s 18. The presence of the prosecution witnesses- Sakara Bai (P.W.1) and Laxmin Bai (P.W.2) at the time of occurrence is also proved mm the FIR which was also promptly lodged, wherein their names have been menhoned by Aghori ' Lal who lodged the report on the date‘of the incident and it has been stated in the FIR that report was lodged on the basis of information given by t Sakara Bai (P.w.1) and Laxmiu Bat (awn). 8.12. Mandavi (P.w.13) has i @ deposed that he registered crime on the report of Aghori Lal vide EXP-20. Merg intimation was also recorded vide EXP-21. It is thus proved that all the accused persons who were armed with deadly weapons assaulted Guharam Witli the common object to cause his death and in furtherance of that common object natured by all the accused persons, proved h‘om their presence, they being armed, inflicting injury, administering warning to Sakaxa Bai (P.W. 1) and Laxmin Bai (P.W.2) and also threatening, inflicted fatal injury causing death of deceased Gnharam. . Learned counsel for the appellant vehemently argued that the testimony of eyewitness does not inspim conndence makes their presence doubtful as their test' ony suders hom material contradiction and omissions. We are not impressed with this argument. Whatever omissions or contradictions have come, are not so material so as to create any doubt with regard to their presence at the time of incident. FIR Ex.P-20 itself contains the name of these two eyewitnesses. . Other contention of learned counsel. for the appellant that no motive has ' been established also cannot be accepted. Kamruddin (P.W. 11) has deposed gt that when’he was posted in Police Station —Malkhkoroda, on 28.9.1988 1 i I between him and appellant Bahadur and which was recorded by him in i Rojnamcha Sanha No. 889 vide Ex.P- 17. Thereafter, Aghori was also sent for medical examination and Dr. Roopam Mishra (P.w.12) who examined Aghori Lal found injury on his person caused by hard object. B.R. Mandavi i (P,W.13) has deposed in para-8 of his cross’7 examination that the FIR was lodged by Aghori Lal stating that he had asked Bahadur not to indulge in ' gambling upon which Bahadur assaulted him and aher lodging the report in police station he returned only late in the night about 11:30 pm. and Guhararn had also accompanied with him for lodgingvthe report. In the FIR, it has also been stated that because of this incident, on the next date Aghori, brother of deceased Guharam had lodged report relan'ng to quarrel I 11 appellant—Bahadur and others commitmd murder of his bmther Guharam. The incident in thc present case happened on 29.9.1988 i.e. very next day of the afomsaid incident of quarrel between Bahadur and Aghori Lal and lodging of mport by said Aghori Lal. Contention of learned counsel for the appellants that there was no motive is themfore not liable to be accepted and is Iejected. . Learned counsel for the appellants next argues that the story of the prosecution and testimony of Sakara Bai (P.W. 1) and Lamnin Bai (PVW.2) is not trustworthy and the prosecution has failed to prove its case beyond masonable doubt inasmuch the ocular testimony is not supported by medical evidence. F‘Iom the testimony of Sakaxa Bai (P.W.l) and Laxmin Bai (P.W.Q), it is clearly established that all the accused persons had’ arrived at the spot, surmunded deceased Gnharam and started innicu'ng injury. The medical evidence clearly establishes lethal blow on deceased ‘ Gnharam and also injury caused by pointed and sharp edged weapon. In the above discussions, it has been found by us aner detailed examination of the testimony of prosecution witnesses that all the accused persons had gathered with the common object armed With deadly weapon and looking to their behaviour and providing full support to each other by inflicting injury- and desisting others nom saving deceased Guharam and also challenging other that if they arrived at the spot they would be murdered, clearly establishes commission of odence under Secn'ons 148 and Section 302 read with Section 149 of the IPC. Having so found, merely because each and every injury has not been proved to be caused by weapon Iathi, fama, tangi (axe) but dennitely caused by lahti (club) and pointed sharp weapon, it cannot be said that ocular testimony is not supported by medical evidence, reliance placed in the matter of Rambilas and other: w. m _q[ Madhga Pradesh [1997 CR1. L.J. 4:649! and the judgment of High Court of M.P. in the matter of xupua Vs. sum after. (Hymn. 2004 [m Note 2 4 6} is misplaced as the are distinguishable oh facts and circumstances No.7) y of the case on the basis of discussion which ge t prove tha oth akara Bai P.w. 1) a Laxmin ai (P..2) were presen at the ene ccurrence nd witnesse th whol ncident. a d e e i . It is lastly contende by learned counsel for the apellant tha te psecution has failed to prove that copy of F as sent to the Magitrate an thefore complie of Section 157 Cr..C. is no proved an vexy lodging of the FR bees highly doub11u'l n he same is nti— imed nd “ e rg t ac b anti-dated. At nrst blush, th aument appéars o be amtive ut if the s is considere i th bcround of proved fact d circtanes of ame d n e akg s an umsc the se, it deserv rejtion. True it i that the prosecution has faile to ca es ec s d place on record copy of report sent to the Magistrate in compliance of Section 157 of Cr.P.C., otherwise, credible and trustworthy testimony of 'Sakam Bai (P.W1) and Laxmin Bai