Bhagirath & others vs State of Madhya Pradesh

Anand Pathak, J.

The Criminal appeal under Section 374 of Cr.P.C. has been preferred by the appellants against the judgment of conviction and order of sentence

dated 06/03/2007 passed by learned Additional Sessions Judge, Ganj Basoda, District-Vidisha in Sessions Trial No.36/2005 whereby appellants No.1,

2, 3, 4, 7, 8 and 9 have been convicted under Section 302/149 of IPC for murder of Kadori and sentenced to Life Imprisonment with fine of Rs.5,000/-

each with default stipulation and appellants No.2, 3, 4, 5 have been convicted under Section 302/149 of IPC for murder of Nannu and sentenced to

Life Imprisonment with fine of Rs.5,000/- each with default stipulation and appellants No.4, 5 and 6 have been convicted under Section 323 of IPC

and sentenced to six months simple imprisonment each and appellants No.1, 2, 3, 4, 7, 8 and 9 have been convicted under Section 148 of IPC and

sentenced to 2 years RI each with fine of Rs.1,000/- each with default stipulation.

As per the case of the prosecution, Mohar Singh (PW-1) presented a complaint on dated 24-11-2004 at around 10 am vide Ex.P-1 that he is

resident of Village Amodachak and in the vicinity of the Village, a well is placed and the land of complainant-Mohar Singh and accused Bhagirath are

just adjacent to it. One day prior to the date of incident, discussion took place between Bhagirath and him about the time of pump irrigation and it was

agreed upon, that Bhagirath would keep his pump later on for irrigation. On 24-11-2004, deceased Kadori and Nannu were keeping their pump for

irrigation over the well and Gulab Bai (PW-3), Ramkali (PW-7) and his mother Dropdi Bai were irrigating the field whereas complaint was at home.

Suddenly, from the well, screaming of the deceased Kadori and Nannu was raised which prompted the complainant alongwith Maharam (PW-2) and

Ramsingh (PW-4) to run to the spot where they saw Bhagirath wielding Kulhadi (axe) Shivua with Farsa, Pooran with Stick and Mohar Singh with

Iron Rod, Vijay with Farsa and Rakesh, Prem Singh and Ghanshyam with Sticks and with intention to kill Kadori, they started beating him. Manori

caused blow of axe over the head of the Kadori, Shivua gave blow of Farsa over his head and Vijay also given blow of Farsa to Kadori. With the

blows, Kadori fell down over the ground and blood started oozing. To kill his brother Nannu, Manori gave blow of axe over his head whereas Shivua

wielded farsa on which Nannu also fell down over the ground and blood started oozing. Kadori who was lying over ground, beaten by the Moongalal,

Rakesh and Prema by lathis over his legs and chest whereas Nannu was beaten by Ghanshyam, Mohar Singh, Moongalal and Prema by lathi and iron

rod and also by fists on his stomach. Phoolbai, Kalabai also participated by throwing stones over deceased Kadori and Nannu. Complainants' sister in

law (Bhabhi) Gulab Bai, Ramkali and Mother Dropdi Bai also received stones and when complainant intercepted, then with intention to kill, Shivua

with the help of farsa and Mohar Singh with iron rod had beaten him up. Phoolbai, Gulabbai through stones and Vijay through handle of farsa given

blows over his right buttock. Maharam, Ram Singh were also beaten up when intercepted. At the time of incident, Jagannath, Bharat Singh (DW-1),

Mungalal (PW-8), Vishna, Munna, Gulabbai and Halkai were also present and witnessed the incident. After the assault, accused persons exhorting

and hurling abusive language escaped from the spot.

Town Inspector-Shri D.P. Ahirwar (PW-11) registered the marg intimation report vide Ex.P-45 for decased Kadori and vide Ex.P-46 for deceased

Nannu and deceased were taken to the hospital but they found dead and intimation was given to Police Station. Naksha Panchayatnama was prepared

vide Ex.P-8 for decased Kadori and vide Ex.P-9 for decased Nannu. Medical examination of Maharam, Ramsingh and Moharsingh was conducted.

Autopsy was done in which cause of death of deceased Kadori was found to be shock due to injury caused over his head and for decased Nannu,

cause of death was injury sustained by him over his head. Investigation was conducted and accused-appellants were arrested. Seized goods were sent

for chemical examination to Forensic Science Laboratory, Sagar and charge-sheet was filed before the Competent Criminal Court.

Accused-apellants abured their guilt. Trial was conducted and evidence were led by the parties. Trial Court convicted the appellants as referred

above therefore, the instant appeal has been preferred.

According to counsel for the appellants, eye witness account regarding injuries sustained by the deceased does not match with the medical

evidence. Deceased-Kadori sustained 3 injuries by sharp edged weapons and FIR bears the said fact. Manori through axe, Shivua through farsa and

Vijay through farsa, given blows to the decased-Kadori. Similarly, Manori wielded axe and Shivua wielded farsa while inflicting injuries to Nannu.

Postmortem report (Ex.P-17 and P-18) of both the deceased reflects that there is material inconsistencies and contradictions exist between the

medical evidence and eye witness account and therefore, the said inconsistencies and anomalies render the case of the prosecution as inadequately

proved against the appellant-accused. Infact, the incident in the morning occurred in such a fashion where the appellant No.1-Bhagirath and appellant

No.2-Manori sustained injuries and therefore, report vide Adham Check was filed vide Ex.D-6 and later on, in a motor accident, deceased died but the

prosecution has roped the present appellants as accused persons in the present case. It is further submitted that prosecution has not explained the

injuries sustained by the accused persons. Dr. B.P. Khare (DW-5) medically examined the accused Manori who sustained injuries. Prosecution does

not explain the injuries of accused. Similarly, Bharat Singh (DW-1) supported the story of defence that accused sustained injuries.

Learned counsel for the appellants referred the judgments rendered by the Hon'ble Apex Court in the case of Hallu and Others Vs. State of

Madhya Pradesh, 1974 SCC (Cri.) 462, Ram Narain Vs. State of Punjab, AIR 1975 SC 1727, Purshottam and Another Vs. State of M.P., 1981 SCC

(Cri.) 352, Kasturi Lal Vs. State of Haryana, 1976 SCC (Cri.) 467, Solanki Chimanbhai Ukabhai Vs. State of Gujarat, AIR 1983 SC 484, Dinesh and

Another Vs. State of Hrayana, 2002 Cr.LJ 2970 and Thaman Kumar Vs. State of Union Territory of Chandigarh, 2003 SCC(Cri.) 1362, and submits

that if any contradiction, inconsistency, exaggeration or embellishment in the form of ocular and medical evidence exist then same is to be seen with

caution and benefit of doubt be given to the accused.

It is also submitted at the instance of appellants that case involves violation of Section 157 of Cr.P.C. wherein the Lash Panchayatnama, does not

contain name of accused and therefore, while relying upon the judgments of the Apex Court in the case of L/NK. Meharaj Singh Vs. State of Uttar

Pradesh, 1995 Cr.LJ 457 as well as M.C. Ali and Another Vs. State of Kerala, (2010) 4 SCC 573 submits that if inquest report does not disclose

particulars in details then this omission is worth consideration and trial Court erred in ignoring all such omissions. While relying upon the judgment

rendered in the case of Hallu (supra), It is reiterated that sharp edged weapon would be presumed to be used from the sharp edge and not from the

blunt side. As per prosecution, Shivua and Vijay might have inflicted two blows of farsa over the head. The Hon'ble Apex Court in the case of

Purshottam (supra) has given guidelines in this regard. Witnesses alleged to be eye witnesses have exaggerated the injuries, which established the plea

of false implication.

Learned Public Prosecutor for the respondent-State opposed the prayer made by the appellants and on the basis of postmortem report of Kadori

and Nannu (Ex.P-17) and (Ex.P-18) respectively as well as by seizure memo (Ex.P-5) opposed the prayer and submits that the case in hand is of

murder (two counts) and therefore, no interference is required. Eye witness account sufficiently reached to establish the guilt of appellants. No case

for interference is made out. He prayed for dismissal of the appeal.

Heard the learned counsel for the parties and perused the record.

The first and foremost question for consideration in the case in hand is about the nature of death of the deceased persons namely Kadori and

Nannu. Postmortem report of Kadori (Ex.P-17) and for Nannu (Ex.P-18) coupled with the testimony of Dr.G.S. Argal (PW-6) indicates that the

cause of death was homicidal in nature because of the injuries sustained by the deceased as referred in the report especially over his head therefore, it

is established that the death of the deceased Kadori and Nannu were homicidal in nature.

Now the question for consideration is the involvement of the appellant-accused in the case of murder of Kadori (decased), for which Bhagirath,

Manori, Vijay, Mohar Singh, Pooran, Ghanshyam and Prema were accused and convicted under Section 302/149 of IPC and sentence to LI with fine

of Rs.5,000/-. Out of these accused persons, Manori, Vijay, Mohar Singh and Pooran are suffering conviction and jail sentence for murder of Nannu

(deceased) also, under section 302/ 149 of IPC. As per FIR (Ex.P-1) at the instance of Mohar Singh deposed as PW-1 Bhagirath with lohangi, Shivua

with farsa, Manori with axe, Vijay with farsa and Mohar Singh with iron rod (laggi) inflicted blows over the deceased Kadori.

The said version is repeatedly explained by witnesses Maharam (PW-2), Gulabbai (PW-3), Ramsingh (PW-4), Ramkali (PW-7) and Mungalal

(PW-8). The version of all these witnesses narrates the same story about the injuries inflicted by different appellants through different weapons

wielded by them over the deceased Kadori.

Dr. G.S. Argal (PW-6), who conducted postmortem over the body of deceased Kadori, found total seven injuries over the body of the deceased, in

which injuries No.2,3,4 and 7 were grievous and sufficient to cause death. Injury No.2 as explained by the Doctor is; (2) Incised wound over left

temporal region-7.15cm x 1cm x Bone deep margin, regular, clean cut, tapering present in both incised depth sub cut deep and in middle up to bone

deep.

Similarly, injuries No.3, 4 and 7 are; (3) Above 2.5cm to 2 injuries i.e. above 2.5cm 2 injury I.W. left tempero-parietal region-3.5cm x 0.5cm x

Bone deep tapering present on both ends depth sub cut level and (4) lacerated wound present in right occipital to left parietal region-7.5cm x 1cm x

bone deep clotted blood present in the wounds and (7) Contusion present over upper 1/3 middle to right side of ante chest 8cm x 6cm on dissertion-

radish blood mixed lot present at sub cut to middle level # of upper 1/3 part of sternum found. All injuries are ante-mortem in nature.

Taking glance over the injuries, it appears that injuries No.2 and 3 were incised wounds, which must have been caused by sharp cutting edged

weapon. Here as per the story of the prosecution, Shivua (farsa), Manori (axe) and Vijay (farsa) were the persons who wielded sharp edged cutting

weapon therefore, out of these three persons, two injuries have been caused to the deceased.

Injury No.4 is a lacerated wound therefore, it might have been inflicted by the appellants who were wielding- hard and blunt objects i.e. Bhagirath

(lohangi), Mohar Singh (iron rod) and Pooran Ghanshyam and Prema (lathis). The witnesses have explained the presence of these appellants who

were allegedly instrumental in murder of the deceased Kadori and their weapons have also been seized by the prosecution. Jamna (PW-12) and J.U.

Saiyad (PW-9), who were the seizure witnesses, supported the story of the prosecution and the weapons were seized from the accused persons

therefore, while considering the said aspect, trial Court rightly implicated the appellants-accused Bhagirath, Manori, Vijay, Pooran, Ghanshyam and

Prema in the murder of the deceased Kadori.

The arguments of the counsel for the appellants that some inconsistencies and contradictions exist in respect of deposition of the witnesses has no

substantive basis. When any gruesome incident takes place involving several accused persons wielding different weapons and taking on their target

more than three persons at a time then, it may be possible that the witnesses may speak in a little bit inconsistent manner. Narration of events of two

individuals always carry depositional schism and it has to be construed and interpreted holistically because every individual defines the event with his

own information gathering capacity, preconceived notions, expression and wisdom etc. Here, occurrence of incident is admitted by the defence

because by leading the defence evidence through Bharat Singh (DW-1), Prahlad Singh (DW-2), Ashok Yadav (DW-3), Dr.K.K. Shrivastava (DW-4)

and Dr. B.P. Khare (DW-5) and their depositions and submissions reveal that the incident occurred between the parties in which as per the story of

the defence, Bhagirath, Manori and Shivua sustained injuries. It indicates that the incident occurred between the parties although some of the

prosecution witnesses in their cross-examination have given different descriptions in respect of injuries like Ramsingh (PW-4) says about 25 to 50

injuries sustained by the deceased persons whereas Maharam (PW-2) refers 50 to 100 injuries over the deceased persons and Ramkali (PW-7)

referred the injuries to the extent of 25 to 50. The said dichotomy between the number of injuries does not render the case of the prosecution as

nugatory or not proved due to such factual variation. As explained earlier, when some gruesome or gory act (as took place in the present case)

happens then the eye witness who is present on the spot becomes so petrified and numb that despite eyes wide open, he could not recollect the minor

details with robotic precision. Therefore, inconsistencies in respect of number of injuries referred by the witnesses and minor inconsistencies in

deposition in respect of weapons being wielded, accused cannot be given the benefit of doubt in such tight and shut case where occurrence of

incident, presence of accused persons and sharing of common object are palpably perceived and occularly proved by the prosecution beyond

reasonable doubt.

The Hon'ble Apex Court in the case of Thaman Kumar (supra) has explained certain exigencies to clarify the conflict between the oral testimony

and medical evidence.

“16. The conflict between oral testimony and medical evidence can be of varied dimensions and shapes. There may be a case where there is total

absence of injuries which are normally caused by a particular weapon. There is another category where though the injuries found on the victim are of

the type which are possible by the weapon of assault, but the size and dimension of the injuries do not exactly tally with the size and dimension of the

weapon. The third category can be where the injuries found on the victim are such which are normally caused by the weapon of assault but they are

not found on that portion of the body or inference cannot be drawn in the three categories of apparent conflict in oral and medical evidence

enumerated above. In the first category it may legitimately be inferred that the oral evidence regarding assault having been made from a particular

weapon is not truthful. However, in the second and third categories no such inference can straight away b drawn. The manner and method of assault,

the position of the victim, the resistance offered by him, the opportunity available to the witnesses to see the occurrence like their distance, presence

of light and many other similar factors will have to be taken into consideration in judging the reliability of ocular testimony. â€​

Considering the dictum of the Hon'ble Apex Court in the given fact situation, picture emerges that appellants-accused formed unlawful assembly

for sharing common object with deadly weapons, inflicted the injuries sufficient to cause death. These injuries are being explained by the medical

experts which were inflicted over the head (injuries No.2,3 and 4) to Kadori and sufficient to cause death in ordinary course of nature. The eye

witness account testifies and establishes the injuries with the weapons. Although some gray area exists in the case in hand wherein two incised wound

have been inflicted over the deceased whereas appellants (three in number) who are charged with inflicting injuries No.2 and 3 through sharp cutting

weapons are Shivua, Manori and Vijay. Out of total injuries, injuries No.2 and 3 have been caused through sharp cutting weapon therefore, it is not

possible that one of the injuries, at least caused by the same weapon by two different persons by causing two different blows. This is very exceptional

and improbable but since, appellants-accused as referred above in respect of murder of deceased Kadori held liable with the liability of Section 149 of

IPC also therefore, the individual act of accused has not to be seen with such minute details to fasten him with the liability of Section 302 of IPC.

Once he shared common object in respect of causing injuries to the deceased Kadori and in pursuance to that, common object, if accused-appellants

have inflicted grave injuries to the deceased then the liability is vicarious. Therefore, the trial Court rightly convicted appellants No.1, 2, 3, 4, 7, 8 and 9

under Section 302/149 of IPC for murder of deceased Kadori and sentenced to Life Imprisonment with fine.

Now regarding murder of deceased Nannu; the trial Court convicted appellants No.2, 3, 4, 5 under Section 302/149 of IPC for murder of Nannu

and sentenced to Life Imprisonment with fine. Since Mohar Singh has died therefore, he is out of discussion.

As per the prosecution witness Mohar Singh (PW-1) who is the scriber of FIR, Shivua with farsa, Manori (axe) and Vijay (farsa) inflicted the

injuries with deadly weapons while Pooran, Prema, Monngalal wielded lathis inflicted injuries over the deceased Nannu.

Now the role of Manori, Vijay, Pooran is to be seen for causing death to deceased Nannu.

Nature of injuries as referred in the postmortem report of Nannu are as under:-

(1) Lacerated wound present over right occipital region, oblique-7cm x 1cm x bone deep clotted radish fresh blood II-over left occipital parietal region,

oblique-5.3â€"cm x 0.5 x deep radish clotted blood present in the wound, major irregular (2) Different contusion over left lower thorax-15cm x10cm.

Dr. G.S. Argal (PW-6) in his deposition has admitted that injuries No.1-a and 1-b were lacerated wounds over the occipital and occipital parietal

region respectively whereas injury No.2 was over lower thorex Contusion wound. Therefore, it is clear that lacerated wound or contusion could not

have sustained by any sharp cutting weapon, it could have been sustained by use of iron rod or lohangi or laggi or at times with the blow of lathi. In

para 17 of his cross-examination, Doctor has admitted this fact that injuries caused to Nannu (as explained later on in para 19) can be caused by hard

and blunt object and were sufficient to cause death. All the witnesses as referred above have specifically maintained their deposition about Manori

wielding axe, Shivua (farsa), Vijay (farsa) and Mohar Singh (iron rod) therefore, Manori and Vijay could not have inflicted lacerated wound through

their sharp edged cutting weapon. Prosecution could not establish the case about the manner of incident whereby these accused persons have wielded

the sharp cutting weapon from the blunt side. The Hon'ble Apex Court in the case of Hallu (supra) has considered such exigencies and reiterated the

guidance as under:-

“11. The postmortem report prepared by Dr. N. Jain Shows that on the body of Jagdeo were found three bruises and a hematoma. On the body of

Padum were found four lacerated wounds and two bruises. According to the eye-witnesses the two men were attacked with lathis, spears and axes

but that clearly stands falsified by the medical evidence. Not only of the injuries found on the person of Jagdeo and Padum could be caused by a spear

or an axe. The High Court however refused to attach any importance to this aspect of the matter by saying that the witnesses had not stated that

“the miscreants dealt axe blows from the sharp-side or used the spear as a piercing weaponâ€. According to the High Court axes and spears may

have been used from the blunt side and therefore, the evidence of the eye-witnesses could safely be accepted. We should have thought that normally,

when the witness says that an axe or a spear is used there is no warrant for supposing that what the witness means is that the blunt side of the

weapon was used. If that be the implication it is the duty of the prosecution to obtain a clarification from the witness as to whether a sharp edged or a

piercing instrument was used as a blunt weapon.â€​

Therefore, it could not be assumed without establishing the fact about the mode of use of weapon that Manori, Vijay and Mohar Singh wielded

their weapons from blunt side. It is possible that the other persons who were wielding different weapons specially lathis and iron rods must have

inflicted the injuries to the deceased Nannu. When accused persons are more and out of the said group, many accused persons wielded different

weapons which could have caused injuries in the form of lacerated wound or contusion wound, then it is possible that the said accused would have

caused the injuries to the victim Nannu. In respect of death of Nannu, the case of appellants Manori and Vijay lacks credence and credibility and

prosecution could not establish the case against them beyond reasonable doubt. Since the wounds inflicted to Nannu, were the wounds, which could

have been inflicted by hard and blunt object by Pooran (lathi) and Mohar Singh (iron rod) therefore, they were rightly convicted under Section 302 r/w

149 of IPC. Manori and Vijay cannot be punished for the offence of murder of Nannu therefore, they deserves to be acquitted from the conviction on

double counts and they can only be punished under Section 302 r/w 149 of IPC for causing murder of deceased Kadori only and for causing murder of

deceased Nannu, they deserves acquittal. Prosecution could not established the role of these accused persons in categorical terms to establish object

to murder Nannu.

To sum up the case of appellants Bhagirath, Pooran, Manori, Vijay, Ghanshyam and Prema, their conviction under Section 302 r/w 149 of IPC for

causing murder of deceased Kadori and sentence for suffering LI alongwith fine of Rs.5,000/-each with default stipulation is hereby confirmed and

affirmed.

Appellants No.2 and 5- Manori and Vijay are acquitted from the charge of Section 302/149 of IPC for causing murder of deceased Nannu and

they are acquitted from the said charge henceforth.

Appellant No.3-Pooran is convicted for causing murder of deceased Kadori as well as Nannu under Section 302/149 of IPC (double count) and

would have to suffer jail sentence accordingly.

From the record, it appears that appellant No.4-Mohar Singh is dead therefore, no order is passed against him. Appellant No.1 Bhagirath, appellant

No.3-Pooran, appellant No.6-Prema and appellant No.7-Ghanshyam are on bail therefore, their bail bonds stand cancelled and they are directed to

surrender before the trial Court immediately else, trial Court shall issue arrest warrant to serve remaining part of their jail sentence.

Appellant No.2-Manori and appellant No.5-Vijay are in jail therefore, necessary supersession warrant be issued for appellants Manori and Vijay

for their acquittal from the charge of murder of deceased Nannu under Section 302/ 149 of IPC, but they will suffer their sentence for murder of

Kadori as per law.

Appeal stands partly allowed and disposed of accordingly.

Copy of the judgment be sent to the trial Court alongwith its record for information.