Dalbeer Singh & Anr vs State Of Madhya Pradesh

The appellants have preferred the present appeal being aggrieved by the impugned judgment dated 31.01.2008 passed by the I Addl. Sessions Judge,

Shahdol, District Shahdol, in Sessions Trial No.31/2007 whereby the appellants have been convicted for the offence under Section 302/34 of the IPC

for committing murder of Heera Singh and have been sentenced to undergo life imprisonment each along with fine of Rs.1,000/-, each, in default 1

year R.I., and also convicted under section 450/34 of the I.P.C. for committing house trespass to commit offence punishable with life imprisonment

and have been sentenced to R.I. for 5 years each along with fine of Rs.500/- each, in default R.I. for six months R.I.

Facts giving rise to this appeal as emerged from the findings of the trial court are that there was a dispute between the appellants and deceased

Heera Singh. On 6.11.2006 nearabout 10 AM when deceased was doing agricultural work in his field situated near his house at that time appellants

accused persons armed with ‘tangi’, ‘lathi’ and ‘danda’ came and assaulted the deceased and in order to save himself he rushed

inside his house. Then appellants followed him and dragged him out of his house and in the field Ranbahadur gave ‘tangi’ blow on the neck of

the deceased due to which he fell down on the ground. At the time of incident Rajendra Singh, PW3, son of the deceased, and Sugratiyabai, PW1,

wife of the deceased, were at home. Both of them made hue and cry. Thereafter, other sons of the deceased, viz. Pappu Singh, PW10 and Lala,

PW8, who were also working in the field at some distance, on hearing the cry of their father, rushed towards the house and saw the appellants beating

his father with ‘tangi’, and ‘lathi’. On hearing hue and cry, Kamal Narayan, PW7 and Rambaksh, PW9 also reached the spot and on

seeing them, the appellants fled away. Deceased died on the spot. Information of the incident was given by Pappu Singh, PW10, at Police Station

Jaitpur, District Shahdol and Marg Intimation, Ex.P/23 and FIR, Ex.P/22, were registered at Crime No.193/2006 against the appellants for the offence

under section 302, 34 and section 452 of the I.P.C. On 7.11.2006 post mortem of the deceased was conducted by Dr.A.P.Choudhary, at P.H.C.

Jaitpur, Shahdol. According to the post mortem report, Ex.P/11A, deceased Heera Singh died due to shock caused on account of crushed right

kidney and multiple injuries. During investigation, the appellants were arrested and at the instance of Dalbeer, a ‘lathi’ and blood stained

clothes were seized, and at the instance of Ranbahadur Singh, a ‘tangi’ and blood stained clothes were seized. The seized articles were sent

to FSL for chemical examination. Thereafter, on completion of investigation, charge-sheet under sections 302, 454, 34 of the I.P.C. was filed

against the appellants before JMFC Shahdol, who committed the case to the court of Sessions, Shahdol and after getting the case on transfer I ASJ

Shahdol tried the case.

During trial, the appellants accused were charged with the offence under sections 302/34 and 450/34 of the I.P.C. They abjured the guilt and

claimed to be tried. In defence, the appellants stated that they are innocent and have been falsely implicated due to previous enmity. However, no

evidence has been adduced in defence. Appellant Ram Prasad was juvenile.

The learned trial court, after completion of the trial, found the appellants guilty of the offences and convicted and sentenced them accordingly, as

mentioned hereinabove.

The findings of the learned trial court are mainly based on the testimonies of Subratiyabai, PW1, Rajendra Singh, PW3, Lala, PW8, Pappu Singh,

PW10. The learned trial court also got corroboration of the aforesaid testimonies with the post mortem report, Ex.P/11A conducted by

Dr.A.P.Choudhary, PW13 and also recovery of blood stained ‘tangi’, ‘lathi’ and danda’, Articles E and F at the instance of the

appellants.Â

Being aggrieved by the aforesaid impugned judgment of conviction and order of sentence, the appellants have filed this appeal on the ground that

the finding of the learned trial court is contrary to law.  The learned trial court has not appreciated the evidence in right perspective. In the

case, statements of Subratiyabai, PW1, Rajendra Singh, PW3, Lala, PW8, Pappu Singh, PW10, are not reliable as they are full of contradictions and

omissions on material points. They are not independent witnesses. They are close relatives and are, therefore, interested witnesses. They have

enmity with the appellants accused. Apart from it, their testimonies are also inconsistent with the medical evidence and FSL report is also not

conclusive as there is no finding of blood group on the weapons. Hence, it cannot be said that the prosecution has proved its case beyond

reasonable doubt.  Therefore, the findings of the learned trial court are not sustainable in the eyes of law. They are based on conjectures and

surmises and on the basis of aforesaid nature of the evidence, the appellants/ accused cannot be held guilty and convicted for the aforesaid serious

charge. Apart from it, in such circumstances, hardly it can be said that the appellants had knowledge that by their act they would cause the death of

the deceased. Hence, their conviction be modified under section 304- Part II of the I.P.C. in place of section 302 of the I.P.C. In the view of the

facts and circumstances of the case, prayer is made to allow the appeal and modify the impugned judgment of conviction and order of sentence and

release the appellants to the maximum period of custody they have already undergone.

On the other hand, learned Govt. Advocate appearing for the respondent / State has argued in support of the impugned judgment and stated that the

finding of conviction and sentence of the learned trial court is in accordance with law. Hence, the appeal be dismissed.

Having considered the contention advanced by learned counsel for the parties and on perusal of record, it is evident that there is no controversy that

the death of the deceased had taken place on account of the injuries sustained by the deceased on 6.11.2006 at his field. Dr.A.P.Choudhary, PW13,

has categorically stated that on 7.11.2006 on 1.10 PM, he conducted autopsy on the body of the deceased and found following injuries :-

i) Lacerated wound â€" shoulder joint back side size 2 cm x 1 cm x s.c. deep transversly,

ii) Lacerated wound â€" right hand dorsal little finger 3 cm x 1 cm x s.c. deep obliquely,

iii)Lacerated wound â€" right hand dorsal ringer finger 2 cm x 1 cm x s.c. obliquely,

iv)Lacerated wound - right hand dorsal middle finger ½ cm x ½ cm s.c.

v) Lacerated wound â€" right elbow joint 1 cm x 1 cm x s.c. traversely.

vi)Contusion - right leg near ankle joint 12 cm x 3 cm transversly raddish â€" bluish with fracture tibia & fibula.

vii) Lacerated wound â€" left elbow joint 1 cm x ½ cm x s.c. deep transversly;

viii) Lacerated wound â€" left leg upper 1/3rd 3 cm x 1 cm x s.c. deep transversely with fracture tibia & fibula.

ix) Lacerated wound â€" parietal 5 cm x 1 cm x s.c. deep longitudenally.

x) Lacerated wound â€" occipital 2 cm x 1 cm x s.c. deep longitudinally.

xi) Fracture 3, 4, 5 and 6 ribs right side to in anterior auxillary line. Â

Doctor has further stated that death had taken place before 16-24 hours and the injuries were antemortem. Nature of death was homicidal and the

injuries were sufficient to cause death and he prepared post mortem report, Ex.P/11A. The aforesaid statement of Dr.A.P.Choudhary, PW13, has

remained unimpeachable. Hence, it is held that the nature of death of deceased Heera Singh was homicidal.

Now, the question that arises for consideration is as to who assaulted or caused injury which led to the death of the deceased. In this regard, son

of the deceased, Rajendra Singh, PW3, has stated that at the time of incident, he was at home and his mother also came and saw the incident. At

the time of incident, his father Heera Singh was working in the agricultural field near the house. Appellant Ranbahadur armed with ‘farsi’,

Dalbeer armed with ‘tangi’ and Dalpratap armed with ‘danda’ came to the spot and assaulted his father Heera Singh. His father tried to

rescue himself by rushing inside the house. Thereafter, appellants followed him and dragged him out from his house towards the field and again

assaulted him. Rajendra and his mother shouted for help. Then his brother Pappu and Lala, who were also working near the place of incident in

the field, along with other persons reached the place of incident. On seeing them, appellants accused persons fled away. This statement has been

supported by Sugratiyabai, PW1, wife of the deceased and sons Pappu, PW10 and Lala, PW8. Kamalnarayan, PW7 and Rambaksh, PW9 became

hostile.  They have not claimed to see the incident. Pappu, PW10 has also stated that he lodged the FIR, Ex.P/22 and Marg Intimation,

Ex.P/23, which were written by Shri S.S.Sengar, PW12, as stated by him and in which appellants have been named as assailants.

Investigating Officer, Shri D.P.Tiwari, PW11, has categorically stated that on 7.11.2006 he arrested the appellants accused persons vide arrest

memos, Ex.P/19, P/20 and P/21, and on the information given by appellant accused Dalbeer vide memo Ex.P/13, ‘lathi’ Article E was

recovered vide seizure memo, Ex.P/15.  Similarly, appellant accused Ranbahadur informed about ‘tangi’ Article F as per memo, Ex.P/14 on

which ‘tangi’ was recovered vide seizure memo Ex.P/16. The aforesaid statements are also corroborated by Panch witnesses Rambaksh,

PW9 and Kamalnarayan, PW7 and as per the FSL report, Ex.P/28 on the ‘tangi’ Article F and ‘lathi’ Article E human blood was

found. This finding corroborates the testimony of witnesses with regard to indulgence of appellants Ranbahadur and Dalbeer in the incident.Â

In view of the contention of learned counsel for the appellants, the contradictions and omissions in the statements of eyewitnesses Rajendra, PW3,

Sugratiyabai, PW1, Pappu Singh, PW10 and Lala, PW9 are required to be considered and examined. On minute scrutiny of their statements goes to

show that there are no contradictions and omissions with regard to the fact that the appellants were the assailants at the time of incident. The

appellants are their close relatives. There is no possibility to implicate the appellants falsely in place of actual culprits of committing death of the

deceased. There is contradiction with regard to the weapons carried by the appellants accused persons and merely on the ground of contradiction

with regard to arms, appellants’ involvement in the incident cannot be denied. So far as inconsistency with the medical evidence is concerned,

there is nothing in the statement of the medical expert that the incident cannot be caused by the appellants, as indicated by the aforesaid

eyewitnesses. Therefore, on account of the aforesaid infirmity with regard to inconsistency or contradiction in the statements, the statements of the

eyewitnesses with regard to the fact that the appellants were assailants in the incident cannot be discarded. Apart from it, in the case FIR, Ex.P/22

and Marg Intimation, Ex.P/23 have been written without delay and the report of FSL, Ex.P/28, also proves the fact that on the weapons recovered at

the instance of appellants accused Dalbeer and Ranbahadur, presence of human blood was found. These facts and circumstances strengthen the

statements of the eyewitnesses. Hence, the contention has no substance.

In view of the aforesaid discussions, we can safely arrive at the conclusion that the injuries which led to the death of the deceased was caused by

the appellants in furtherance of their common intention as they all came to the spot accompanying each other and took part in the incident and

thereafter fled away together.

Now, the next question that arises for consideration is whether appellants committed the murder of the deceased or culpable homicide not

amounting to murder. As per postmortem report of the deceased, Ex.P/11A, conducted by Dr.A.P.Choudhary, PW13, injuries no.2 to 7 were on

arms and legs and injury no.1 was on shoulder and injuries no.9 and 10 were on occipital region and injury no.11 was on ribs in which injuries no.6, 8

and 11 were grievous being fractures on the relevant parts of the body. But, the cause of death was crushing of the kidney and shock caused by

other injuries and the injuries were sufficient to cause death; but, this witness has not stated that the injury was sufficient to cause death in the

ordinary course of nature. In the circumstances, it cannot be said that the appellants assaulted the deceased with a view to cause his death or such

bodily injury which is sufficient to cause death in the ordinary course of nature. In the aforesaid circumstances, without specific finding of the

medical expert with regard to the injuries to the effect that whether they were sufficient in the ordinary course of nature to cause death or not, it

cannot be said that the appellants have the intention to cause the aforesaid injury with a view to cause death. Apart from it, as per the prosecution

story, appellant Ranbahadur was armed with ‘farsi/tangi’ at the time of incident, which is a sharp edged weapon; but as per the medical report

the deceased did not sustain incised wound caused by sharp edged weapon. If the assailants had a sharp edged weapon but did not use it and used it

as a blunt object, then it can be inferred that the assailants had no intention to cause injury which may be more fatal.Â

Considering the aforesaid circumstances, in view of this court, the prosecution has failed to prove that the appellants assaulted the deceased with a

view to cause his death or to cause such bodily injury which were sufficient in the ordinary course of nature to cause death. However, there is no

doubt that appellants have knowledge of the fact that their act may likely to cause death of the deceased. Hence, appellants can be convicted for

committing culpable homicide not amounting to murder.

So far as the conviction under section 450/34 of the I.P.C. is concerned, eyewitnesses Rajendra Singh, PW3 and Sugratiyabai, PW1, has

categorically stated that at the time of incident when the deceased try to rescue himself by rushing inside the house and closed the door, the appellants

forcibly entered into the house and dragged the deceased out of the house and assaulted him. The aforesaid statements of the witnesses remained

unimpeachable and prove the charge under section 450/34 against the appellants beyond reasonable doubt.

In view of the aforesaid discussion, we partly allow this appeal and set aside the conviction and sentence of the appellants under section 302 of

IPC and, instead, convict each of them for commission of the offence under section 304 Part II of IPC and sentence each of them to already

undergone maximum period of R.I for 10 years. However, the conviction and sentence of the appellants under section 450/34 of the I.P.C. is

hereby affirmed. From perusal of the record it appears that the appellants are in custody since 7/11/2006. Hence, they have already suffered the jail

sentence considering both of them run concurrently. Resultantly, the appellants be released forth with, if not required to be detained in any other

case.

We also express our words of gratitude for the assistance rendered by Amicus Curiae.

A copy of this judgment be sent to the concerned trial court and jail authorities for information and necessary action.