Bhur Singh and Others vs State of M.P.

I.S. Shrivastava, J.—This appeal has been preferred by the appellants being aggrieved by the judgment dated 18/10/2001 passed by the Court -of Shri B. L. Jatwa, Additional Sessions Judge, Jobat, District-Jhabua in S.T. no, 101/1999, by which the appellants have been convicted under sections 148, 302/149 and 506 (part-11) of the IPC and sentenced to rigorous imprisonment of two years each and life imprisonment with fine of Rs.2000/- each and rigorous imprisonment of two years each respectively.

According to the prosecution story, on 24/09/1998 at about 5.15 pm, Dungriya, husband of complainant Nahju returned to home from Udaygarh and said to his wife Nahju that he would take bath in Nala and she would wash the clothes there. Thereafter, both of them went to the Nala. She was washing the clothes and Dungriya was smocking bidi. Nagariya, younger brother of her husband and her son Teniya were sitting there. At about 5.30 pm, accused Jalam, Bhursiya, Khelu, Mangtiya, Bhudhiya, Kalsingh, Kishan and Kasturi armed with bow and arrows and faliya came there and surrounded her husband, at that time, Nahju ran towards the Nala. Accused Bhursiya, Jalam and Mangtiya shot Dungriya by bow and arrows which caused injuries to his chest, hands and face. Accused Kasturi, Bhudiya and Khelu assaulted by faliya in the head of Dungriya, due to which he fell down, then accused Kalsingh and Kishan assaulted by stone to his head till his death. The remaining accused persons surrounded Dungriya. After the death of Dungriya, accused Jalam ran towards Nagriya to kill him. Kelsingh caught hold of him, then Nagriya got rid of him and ran away. On the cries of Nahju, her mother-in-law Rukhama, sister-in-law Hajri came there, then accused persons ran away. Due to the old enmity of land, the accused persons killed her husband. The accused persons also threatened that in case of report, they would finish whole of the family. Hence on report on 25/09/1998 at 6.30 am, crime no. 156/ 1998 was registered under sections 147, 148, 149, 302 and 506 of the IPC. After investigation, challan was filed against the appellants. Accused Kishan was juvenile, hence challan was filed against him in Juvenile Court. The appellants / accused have been convicted and sentenced after trial as mentioned herein above.

It has been argued by the appellants'' counsel that all the prosecution witnesses have improved their statements from their police statements during trial. The evidence was not appreciated in proper perspective. As per medical report and the statement of Dr. Prakash Dhoke PW-5, no injury was found on the back side of the head of the deceased Dungriya and there was no injury on the waist and stomach; there was no injury of faliya. No independent witness was produced before the trial Court. Hence the appeal deserves to be allowed.

It has been argued by the respondent''s counsel that the case was proved on the basis of the evidence produced before the Trial Court, hence this appeal being devoid of merits, be dismissed accordingly.

Considered the arguments and record of the trial Court perused.

At the time of the trial, Nahju PW-I, Nagriya PW-2, Rukhma PW-3, Hajaribai PW-8 and Teniya PW-9 were produced in supported of the prosecution story.

Hajaribai PW-8 was not the eye witness, but according to her statement, on the cries of Nahju, she reached on the spot and saw her brother Dungriya; he was having injuries on his chest, abdomen and mouth. On inquiry, Nahju told her that accused Bhursingh, Jalam, Khelu, Mangtiya, Kasturi, Kalsingh, Kishan and Bhudhiya killed Dungriya by bow arrows and stones. According to her police statement Ex.-D/4, at the time of the incident, she was at her house and on hearing the cries of Nehju, she went to the spot, but in court statement, she deposed that at the time of the incident, she was grazing her cattle near the place of incident and on the cries of Nahju, she reached the spot. In cross-examination,, she deposed that Nahju told her about the incident, when police picked up the dead body of Dungriya. According to Nahju PW-1, at 3 am, police came and took the dead body to police station; she also -accompanied them. This shows that she did not reach the spot immediately after the incident, otherwise, naturally in the evening when she reached the spot, naturally Nahju, wife of Dungariya should have told her about the incident. Therefore, the presence of witness Hajribai PW-8 is doubtful. She has not given detail information that which accused assaulted in which way to the deceased. Hence the statement of this witness is not reliable.

Kamru PW-6 deposed that he reached the spot at about 11-11.30 pm on receiving the information that Dungariya has been killed. He went with other persons by Jeep there. Nahju, wife of Dungariya told him that Dungariya was killed by accused Jalam, Khelu, Kasturibai, Kishan and others in all eight persons. In cross-examination, he deposed that he remembered only names of the four accused, even Nahju told him the names of all the eight accused persons. Hence this is hearsay witness.

Rukhma PW-3 deposed that at about 5.30 pm, she was grazing her cattle, at that time, accused Khelsingh, Bhursiya, Jalam and Mangtiya, Bhudhiya, Kalsingh, and Kasturi came there. Accused Khelsingh and Bhursingh caught hold of Dungariya and accused Jalam assaulted by bow and arrows, which caused him injury to his chest. Accused persons assaulted him by stones, due to which, he sustained injuries in his chest and other parts of the body and died on the spot. According to her police statement, she was not on the spot. At the time of the incident, she was grazing her cattle near the Nala and on the cries of Nahju, when she was going towards Nala, she saw accused Bhudhiya, Khelsingh, Kasturi, Jalam, Bhursiya, Mangtiya, Kalya armed with bow and arrows and accused Kalsingh and Kishan with empty hands rushed towards their homes. She wanted to talk with them, but they did not stop. When she reached the Nala, she saw Dungariya was lying dead and Nahju, Teniya and Hajribai were weeping. In this way, she was not the eye witness of the incident, but she has deposed being as eye witness. In cross-examination, she deposed that she did not gave portion A to A of her police statement Ex.-D/3. In portion B to B of police statement Ex.-D/3, it was mentioned that Nahju told her that Bhursiya, Jalam, Mangtiya, Bhudhiya, Khelsingh, Kasturi, Kishan and Kalsingh killed Dungariya by bow & arrows and stones and faliya, but she has denied her deposition and said that she did not inform the police about it. She further deposed that on the cries of Teniya and Nagriya, she reached the spot. Teniya and Nargiya reached the spot and at the same time, she reached the spot. In this way, from the statement of this witness, it seems that she has produced herself as eye witness while she was not the eye witness, therefore the statement of this witness Rukhma PW-3 is not reliable.

Nagriya PW-2 deposed that on the date of the incident, he along with Teniya was fishing at the Nala, at that time, Dungariya and Nahju came there. Nahju was washing clothes in the Nala and Dungariya was smocking bidi. At that time, accused Khelu and Bhursiya came and caught Dungariya. Along with them, accused Jalam, Mangtiya, Bhudhiya, Kalsingh, Kasturi and Kishan came there and at the same time, accused Jalam, Bhursiya and Mangtiya assaulted by bow and arrows to Dungariya which caused injury to his abdomen; he fell down. Accused Kasturi and Kalsingh assaulted Dungariya by stones, due to which Dungariya died. Thereafter, Jalam and Mangtiya aimed their arrows towards him, hence he ran away from the spot.

It has been argued with respect to this witness that his statement does not support the prosecution case as stated in the police statement Ex.-D/2. According to his police statement, he was sitting at the Nala for fishing. It was 5.30 pm. Accused Jalam, Bhursiya and Mangtiya armed with bow and arrows; accused Bhudhiya, Kasturi, Khelsingh armed with faliya and accused Kalsingh and Kishan came there and circumscribed Dungariya. Accused Bhursiya, Jalam and Mangtiya assaulted him by bow and arrows,, which caused injury to his chest, abdomen and hands and mouth. Accused Kasturi, Bhudhiya and Khelsingh assaulted by faliya on his head, then Dungariya fell down. Thereafter, Kishan and Kalsingh assaulted him by big stone of Nala on the face. Till the death of Dungariya, all the accused persons remained there. After the death of Dungariya, Jalam and Khelsingh came to him and Khelu tried to catch him, but he ran away after releasing himself from them. They chased him, but could not succeed. In this way, he has given different story. The fact that Kelsingh and Bhursiya caught hold of Dungariya, was not in his police statement and is an improvement, hence his statement is not reliable.

As regard to the assault by Kasturi, Bhudhiya and Kelsingh by faliya, this witness has not deposed anything. The assault of stone by Kasturi is a new fact which was not in the police statement Ex.-D/2. Accused Jalam, Mangdiya aimed arrows towards him, is a new fact which was not in his police statement. He further deposed in cross-examination that when Teniya ried, then he went to the spot after the fall of Dongariya; the assailants chased him. In this way, from the contradictions and omissions in the statement of this witness, it seems that he was not present on the spot and being the cousin of the deceased, he has become eye witness, otherwise, such type of contradiction would not have occurred from the statement, hence the statement of this witness is not reliable.

Nahju PW-1 deposed that at the time of the incident, she went along with her husband Dungriya to the Nala and she was washing clothes and her husband was smocking bidi. At that time, Nagriya and Teniya were in the same vicinity. Accused Kasturi, Bhudhiya, Kishan, Kalsingh, Jalam, Mangtiya, Khelu and Bhursiya armed with bow arrows, faliya came there. Accused Kelsingh and Bhursiya caught hold of her husband and accused Jalam, Mangtiya and Bhudhiya inflicted arrows on her husband, due to which, he fell down. Accused Kasturi assaulted by faliya, which caused injury on the back side of the head of her husband. Accused Bhursiya assaulted by faliya on his chest; accused Khelsingh assaulted by faliya on his waist. Accused Kalsingh threw stone on the head of her husband and accused Kishan assaulted by stone to her husband. Accused Kasturi was saying to accused Kishan to assault Dungariya by stone. The statement of this witness is not with the conformity with the police statement Ex.-D/1. The fact that Rukhma was in the same vicinity, at that time, accused Bhudhiya assaulted by arrow and Kasturi assaulted by faliya on the back side of the - head of her husband and Bhursiya assaulted by falyia on the chest of her husband and accused Khelsingh by faliya on the waist of her husband and the fact that accused Kasturi was saying to Kishan to assault her husband by stone and Bhursiya ran towards Nagriya and the fact that Bhursiya caught hold of her husband, have not been mentioned in her police statement. These are the improvement, which are not reliable.

In FIR, it was mentioned that Bhursiya, Jalam and Mangtiya assaulted by arrows to her husband, which caused injury in the chest and hands, but in court statement, she has not named Bhursiya and Bhudhiya who assaulted arrows on the chest of Dungariya along with accused Jalam, Mangtiya, therefore, the fact that accused Bhudiya assaulted by arrows, is not reliable and Bhursiya assaulted by arrows, has not been stated by this witness hence, this fact is not proved. This witness has deposed that Bhursiya assaulted her husband by faliya at his chest, is not in FIR and the fact of the FIR that accused Bhudhiya assautled her husband by faliya has not been deposed by this witness in court statement., hence both these facts are not proved. The fact that accused Kasturi said to Kishan to assault by stone, is not reliable, because it is not in the FIR and police statement Ex.-D/1.

According to Dr. Prakash Dhoke PW-5, he did not find any injury on the backside of the head and abdomen and on waist, therefore, the fact that Kasturi assaulted by faliya on the backside of the head; Khelu assaulted by faliya on the waist, are not reliable. The fact that Bhursiya assaulted by faliya to her husband, which caused injury on his chest, are an improvement because in FIR, it was mentioned that Bhursiya assaulted her husband by arrow, hence this witness is not believable for this fact.

Therefore on the basis of the above discussion, it seems that Jalam, Mangtiya assaulted her husband by arrows, due to which her husband fell down. This fact is supported by the evidence of Dr. Prakash Dhoke PW-5 and postmortem report Ex.-P/2. According to the statement of Prakash Dhoke PW-5, injury no. 8 was incised wound on the left side of the chest, which was 4 cm x 1 cm x 10 cm deep. In this injury, the heart was perforated with arrow from its upper end to lower end of heart and 5 cm x 1 cm iron made arrow 10 cm x 3 cm was found inside the heart. By this injury, death of the deceased Dungriya was possible. According to the opinion given in postmortem report, cause of death is cardiac respiratory failure, due to hemorrhage and shock and injury to vital organ (breast), therefore this injury was responsible for the death of the deceased. Since Jalam and Mangtiya inflicted arrows on the deceased, therefore, they are responsible for the death of Dungariya.

Teniya PW-9 is the ten year''s child of deceased Dungariya. At the time of the incident, he was with Nagariya at the Nala for fishing. At the time of the incident, his father was smocking bidi and mother was washing, then accused Bhursiya, Jalam, Khelu, Khelsingh, Bhudiya, Kishan, Kasturi, Mangtiya and Kalsingh came there and as soon them came, accused Bhudhiya assaulted by arrows on his father which caused injury in the chest. Accused Jalam assaulted by arrow on his father, which caused him injury in the armpit. Thereafter, his father fell down, then accused Kalsingh and Bhursiya assaulted him by faliya and other accused persons also assaulted by stones, due to which, he died. According to the police statement Ex.-D/5, all these accused Bhursiya, Jalam, Mangtiya came with bow and arrows from the front side; accused Bhudhiya, Khelsingh and Kasturi came with faliya from the back side and Kishan and Kalsingh came with stones from the front side. They circumscribed his father and assaulted him by bow & arrows, faliya and stones, due to which, he fell down. Thereafter, Kishan and Kalsingh assaulted by stone on his mouth, due to which his father died. Thereafter, the accused persons ran away. The fact that accused Bhudhiya assaulted his father by arrow, is not reliable because according to his police statement Ex.-D/5, accused Bhudhiya was having faliya. The fact that Bhursiya assaulted his father by faliya is not reliable because in Ex.-D/5, the police statement, accused Bhursiya was having bow and arrows. The fact that all the accused persons assaulted to his father by stones, is not reliable, because according to his police statement Ex.-D/5 only Kishan and Kalsingh came with stones and assaulted his father at the mouth. Hence in the Court statement, this witness has not supported the fact that Kishan and Kalsingh assaulted by stones to his father therefore, the fact that accused Jalam assaulted his father by bow & arrows, is reliable.

On the basis of the above discussions, the position comes that accused Jalam and Mangtiya assaulted by bow & arrows to deceased Dungariya, due to which he died. Khelsingh and Bhursiya are said to have caught hold of the deceased, but this fact is not believable as it is not in the statement u/s 161 of the Cr.P.C. Ex-D/1 of Nahju, Ex.-D/2 of Nagriya, and Ex.-D/3 of Rukhma.

During the investigation, vide seizure memo Ex.-P/6, bow & arrows was seized from the accused Jalam; vide seizure Ex.P/8, bow & arrows was seized from the accused Mangtiya. This confirmed the prosecution story. Faliya was seized from accused Bhudiya, hence the statement of Teniya PW-9 that accused Bhudhiya assaulted by arrow to his father is not believable.

It has been argued by the appellant''s counsel that during investigation, vide seizure memo Ex.-P/5, two stones blood stained, out of which one was pointed weighing 2 kg and other stone was weighing 500 grams, were seized from the spot, but they have not been produced in the evidence. Hence it cannot be said that they were used as a weapon of assault in the incident. Hence it was not proved that the stones were used in the incident.

Considered the arguments. Investigating Officer Shri S. K. Mishra PW-10 deposed that from the spot, vide panchanama Ex.- P/5, he seized two stones blood stained and prepared panchanama Ex.-P/5, which bears his signatures. The independent witnesses of this seizure was Kamru PW-6 and Vesta PW-7. Kamru PW-6 has been examined by the prosecution. He deposed that from the spot, 5-6 stones small and big in size were seized. The seizure memo Ex.- P/5 bears his signatures. In this way, this witness has not supported the fact that two stones blood stained, out of which one was pointed weighing 2 kg and other was weighing 500 grams was seized from the spot. The other independent witness was not examined by the prosecution. In this way from the statement of Kamru PW-6, it was not proved, that these two stones were seized vide panchanama Ex.-P/5. These stones have not been produced in evidence, therefore, the seizure memo was legally not proved asheld in the case of Raju Dubey Vs. State of M.P., . Therefore, it was not proved that by these two stones, accused Kalsingh and Kishan assaulted the deceased Dungariya. Since Kishan was not tried in this case, therefore, it was not proved that kalsingh assaulted the deceased by these two stones.

Therefore, on the basis of the above discussions, we are of the view that from the prosecution evidence, the offence was proved against the accused Jalam and Mangtiya only and there was no evidence against the accused Bhudhiya, Kasturi, Bhursiya, Khelsingh and Kalsingh, hence they are liable to be acquitted.

Therefore, on the basis of the above discussions, this appeal is partly allowed and the conviction and sentence of the appellants Jalam and Mangtiya is hereby confirmed and the remaining accused Bhudhiya, Kasturi, Bhursiya, Khelsingh and Kalsingh are acquitted from the charged under sections 148, 302/149 and 506 (part-11) of the IPC. Accused Kasturi and Kalsingh are on bail; their bail bonds stand discharged and the remaining accused except accused Jalam and Mangtiya be released, if not required in any other offence. The fine, if deposed, be returned to them.