Ashutosh @ Ashu And Ors vs State Of Madhya Pradesh

Both these appeals have been filed against the common judgment dated 05.02.2010 in Session Trial No. 76/2007 passed by Additional Sessions

Judge, Nowgaon, District Chhatarpur, whereby the appellants have been convicted under Section 302 read with Section 34 and sentenced to undergo

life imprisonment with fine of Rs. 3000/- and 323 read with Section 34 of Indian Penal Code and sentenced to undergo RI for six months to each

appellant and further RI for 06 months in default of payment of fine.

In brief, the prosecution case is that on 08.01.2007 at about 8:00 pm, Sheikh Rahees (since deceased) along with Firoz, Naushad and Shamshad

were in a fair (mela) where a quarrel took place between them and the appellants. Thereafter, at about 10:45 pm at night, appellants reached the

house of Sheikh Rahees situated behind Polytechnic College, Nowgaon. They compelled Rahees to come out of his house. When Rahees and his

brother Anees came out, in furtherance of their common intention the appellants Ashutosh and Sunil inflicted blows of lathis at the head and hands of

Rahees. Anees tried to save Rahees. But appellant-Ajju assaulted him with a lathi. At that time two ladies namely Smt. Chhammo (PW-5) and Baddi

came to the spot to rescue them. Thereafter, the appellants threatened them and flee away from the spot. Both, Rahees and Anees sustained injuries.

FIR was lodged by Rahees at Police Station Nowgaon. Police registered offence under Sections 323, 294, 506 Part II read with Section 34 of IPC

against the appellant. On the next day, Rahees died due to the injuries sustained. Thereafter, Police added Section 302 read with Section 34 of the IPC

against the appellants. After due investigation, charge-sheet was filed by Police Station, Nowgaon against the appellants under Sections 302/34,

323/34, 294 and 506 Part II of IPC.

After committal of the case, learned trial Court framed charges under Sections 302 read with Section 34, 323 read with Section Section 34, 294 and

506 Part II of IPC against the appellants. Appellants abjured guilt and pleaded innocence and claimed to be tried. No defence witness has been

examined by the appellants.

Learned trial Court held the appellants guilty on the basis of the testimony of injured eye-witness Sheikh Anees (PW-3), medical evidence of Dr.

R.P.Pandey (PW-1) who conducted MLC and Dr. J.P.Tiwari (PW-6) who conducted autopsy of the deceased, so also the fact that the FIR was

lodged by the deceased himself. Hence, the trial Court convicted and sentenced the appellants as mentioned hereinabove.

Both these appeals have been filed almost on the same grounds that the trial Court wrongly treated the FIR (Ex. P/23) as Dying Declaration,

particularly when the deceased did not have any apprehension of his death. Other evidence available on record are not sufficient to convict appellants.

The trial Court wrongly appreciated the prosecution evidence against the appellants, hence, the findings of the trial Court are perverse and illegal.

Thus, they have prayed to set aside the impugned judgment and to acquit the appellants from the charges levelled against them.

It is also alleged by the appellants that there are some lacunae in the case of prosecution. Sheikh Anees (PW-3) is the brother of the deceased,

hence, he is an interested witness. No other witness has supported his testimony. Further, the version given by the deceased in the FIR (Ex. P/23) is

not corroborated by the medical opinion. Doctor found some additional injuries on the deceased, hence, prosecution story and First Information Report

are doubtful. These defects were ignored by the trial Court. Name of appellant-Ashutosh and Sunil Rajak was missing in inquest report (Ex.P/4)

which was the first version of the death of the deceased. This omission created reasonable doubt in their favour. On that account, the appellants are

entitled to be acquitted from the charges levelled against them.

Learned Government Advocate for the respondent/State has vehemently opposed the contentions of the counsel for the appellants, and argued in

support of the findings recorded by the trial Court.

We have heard learned counsel for the parties at length and perused the record.

It is not challenged by the learned counsel for the appellants that before the incident that there was a quarrel between the appellants and their

friends with one Firoz. In that incident, decease Sheikh Rahees supported Firoz and went to the police station with Firoz to lodge FIR against the

appellants. Hence, the appellants had motive to commit the offence.

It is not in dispute that Sheikh Anees (PW-3) is the real brother of deceased Sheikh Rahees. As per Dr. R.P.Pandey (PW-1) and Dr. J.P.Tiwari

(PW-6) Sheikh Rahees died due to intracranial hemorrhage caused by the head injuries within 10-12 hours of the postmortem. Dr. J.P.Tiwari (PW-6)

found the following injuries on him :

Contusion on the upper arm of 3â€​x2â€​.

Contusion 1½â€​ above the right eye.

Contusion on the left elbow of 2â€​x2â€​.

Contusion on the left occipital region of head of size 4â€​x3â€​. Above the wound, an abrasion of 1â€​x1â€​.

In the internal examination, Dr. J.P.Tiwari (PW-6) found the following injuries:

Blood clots of size 5â€​x5â€​ over left occipital region, transverse fracture on left occipital bone, 5â€​ long, subdural hemtoma 3â€​x2â€​

Lacerated wound on the left occipital region, intra-cerebral hemorrhage and left cerebral hematoma of 2â€x2†on the hind side of the occipital

region.

Left chamber of heart was empty and right chamber was filled with blood. All the injuries were caused by hard and blunt object.

Learned counsel for the appellant submits that there are material contradictions in the opinion of Dr. R.P.Pandey (PW-1) and J.P.Tiwari (PW-6).

The testimony of Sheikh Anees is also contradictory to the FIR (Ex.P/23). Due to the contradictions and omissions, reasonable doubt has been created

in favour of the appellants.

We are not inclined to accept this contentions as material, which may disturb the findings of the trial Court because the doctor found main injuries

on the head of the deceased which is the cause of his death. The incident took place at night, hence, there is a possibility that Sheikh Anees could not

take note of the injuries properly. Similarly, there is a possibility that Dr. R.P.Pandey (PW-1) who conducted MLC of Sheikh Rahees negligently

discharged him from the hospital. After few hours, his condition deteriorated and succumbed to those injuries. Thus, we cannot ignore all the

circumstances and we are not inclined to accept only the version of Dr. R.P.Pandey in favour of the appellants. In our considered view, the injuries

are homicidal and sufficient to cause death of the deceased in ordinary course of nature. Hence, we find that the medical evidence of Dr. J.P.Tiwari

(PW-6) is in corroboration with the prosecution story which also finds support from the testimony of eye witness Sheikh Anees (PW-3).

At the time of incident, his presence is found quite natural as the incident took place in front of his house. It is pertinent to mention that as per the

prosecution story, the incident occurred at about 10:45 pm at the house of the deceased. Sheikh Anees (PW-3), Smt. Chhammo (PW-5) mother of the

deceased and the relatives of the deceased resided together along with the deceased. Hence, their presence on the spot at the time of incidence is

quite natural. They clearly stated about the persons and active participation of the appellants during commission of offence. Smt. Chhammo (PW-5)

clearly stated that Sheikh Anees sustained injury on his hand while he was trying to rescue his brother-deceased Sheikh Rahees from the

appellants’ assault.

Dr. R.P.Pandey (PW-1) examined Sheikh Anees on 08.01.2007 at Civil Hospital Nowgaon. He found the following injuries on the body of Sheikh

Anees :

Lacerated wound on the ring finger of right hand of size 2x¼x ¼â€​.

Lacerated wound on the little finger of right hand of size 2x¼x¼â€​.

Abrasion on the right ring finger of ¼x¼â€​.

Contusion of the left scapular region of size 3x1â€​.

All injuries are simple in nature and caused by hard and blunt object within two hours from the MLC as stated in medical report (Ex. P/1).

Sheikh Anees (PW-3) deposed that appellant Ajju and Shankar Rajak inflicted lathi blows on him. His mother Smt. Chhammo (PW-5) and

maternal grandmother witnessed the incident. She corroborated the testimony and the facts of the FIR (Ex. P/23). At the time of incident, she was

also present at her house along with her mother. Thus, only on the grounds that they are interested witnesses, their testimony as injured eye-witness or

eye-witness cannot be entirely brushed aside.

Police recovered weapon from the possession of the appellants. In this regard testimony of Mohd. Sadik (PW-10) and Mohd. Vajir Raut (PW-9)

corroborated the testimony of Investigating Officer Sambhu Singh (PW-15) which is fully proved by their inocular testimony.

Thus, in our considered opinion the prosecution case is duly established by the witnesses as the injured eye witness Sheikh Anees (PW-3)

supported the case of prosecution. We find that the testimony of Sheikh Anees (PW-3) and Smt.Chhammo (PW-5) is inocular, trustworthy and

reliable. In furtherance of their common intention, they actively participated and inflicted fatal injuries to the deceased and simple injuries to eye-

witness Sheikh Anees. The learned trial Court duly appreciated the entire prosecution evidence and thereafter held the appellant guilty for committing

offence under Sections 302/34 and 323/34 of IPC. Thus, we do not find any reason to interfere in the impugned judgment. Accordingly, the appeals

are dismissed.

Appellant Sunil Rajak (CRA No. 337/2010) is in jail. Appellants Ashutosh @ Ashu & Ajju @ Abdul Azad (CRA No. 337/2010) and Shankar

Rajak (CRA No. 360/2010) are on bail. Their bail bonds stand cancelled. They shall surrender immediately before the trial Court to serve the

remaining part of their jail sentence, failing which the trial Court shall take appropriate action against them under intimation to the Registry of this

Court.

Let a copy of the judgment along with the records be sent to the Court below for information and compliance.