Bhagga And Ors vs State Of M.P

4. The case made out by the prosecution is that on 4th June, 1986, all the appellants who were armed with lethal weapons such as axe, lathi and Lohangi gathered at Village Burhanpur under Bamorkalan Police Station and formed an unlawful assembly and after entering the house of one Babulal, committed his murder and caused injury to his wife, Raina Bai.

5. The facts leading to the aforesaid incident is that appellant Malkhan is alleged to have cut down two Khair trees from the field of deceased Babulal. Babulal thereupon asked Malkhan to return the trees and Malkhan is said to have promised to return the trees cut by him to Babulal. On 4th June, 1987 at about 7 in the morning, Malkhan went to Babulals house and told him to take back the trees which had been cut down by Malkhan. Once Babulal reached Malkhans house, he was assaulted by all the appellants. The incident was witnessed by Raina Bai (P.W.1), Raj Kumari Bai (P.W.4), Gyan Bai (P.W.6), Bhawani Singh (P.W.7), Harkunwar (P.W.8) and Lakhan Singh (P.W.14).

7. Relying on the evidence of Raina Bai (P.W.1), Raj Kumari Bai (P.W.4) and Gyan Bai (P.W.6), the High Court was of the view that the evidence of the eye-witnesses was relevant and cogent and that the trial court after appreciation of the evidence had convicted the appellants. The High Court also observed that from the evidence the presence of the injured witnesses at the place of occurrence could not be doubted and their evidence inspired confidence. Consequently, the High Court dismissed the appeal.

9. P.W. 6 Gyan Bais evidence indicates that on the day of incident she was in her house when Raina Bai and Harkunwar came and told her that her son had been killed. She then went to the house of Malkhan and saw that the accused had confined her son inside the house. She too deposed that Malkhan, Kalyan, Munna and Shyamlal were armed with Lohangis, Santosh was armed with lathi and Harnam was armed with an axe. On her protests Kalyan and Munna dropped her at the door-step of the house from where she saw blood flowing from the mouth of her son Babulal, as Santosh had hit him on the mouth with a lathi. At the same time she also deposed that Harnam hit Babulal with an axe while Shyamlal son of Balu hit him with Lohangi and Ramcharan hit him with lathi. She also deposed that her elder son, Bhawani Singh and daughter-in-law, Raj Kunwar reached the place of occurrence at the same time. Both Bhawani Singh and Raina Bai went to Banmore Police Station and later on Head Constable of Police came to the spot and recorded the statement of Babulal which was subsequently treated to be his dying-declaration. P.W.-7 Bhawani Singh, P.W.-8 Har Kunwar, P.W.-9 Amol Singh, P.W.-14 Lakhan Singh have all supported the prosecution case and reiterated that the appellants had surrounded Babulal and had assaulted him with different weapons, as a result of which he fell down and subsequently the accused persons lifted him and took him into the house of Malkhan.

16. It may be mentioned that upon his failure to surrender, the special leave petition of Santosh was dismissed on 30th August, 2004.

17. Accordingly, we allow the appeal in part. The judgment of conviction and sentence of the trial court as confirmed by the High Court is affirmed as far as Harnam, Shyamlal, Kalyan, Munna and Malkhan are concerned. The said appellants, if on bail, shall surrender before the Chief Judicial Magistrate, Shivpuri, within a month from date to undergo their sentence. If the said appellants fail to surrender in terms of this order, the Chief Judicial Magistrate, Shivpuri, shall take steps to ensure that the said appellants are apprehended and made to undergo their sentence. The bail bonds, if any, in respect of these appellants shall stand cancelled.

18. The appeal is allowed as regards Bhagga, Shankara and Bahadura. The judgment of the trial court as affirmed by the High Court are set aside as far as they are concerned. Their bail bonds, if any, are discharged and they be set at liberty forthwith, if not required in connection with any other case.