Dirgan Lodhi and Others vs State of M.P.

Sushma Shrivastva, J.—Appellants have challenged their conviction and order of sentence passed by Special Judge, Panna, in ST No. 24/97 decided on 3.11.1999.

Appellants have been convicted u/s 302/149 and 147 of IPC and sentenced to imprisonment for life with fine of Rs. 1,000/- and one year rigorous imprisonment for the respective offences. Appellants No. 1 to 5, 7, 8 and 10 have been further convicted u/s 148 of IPC and each of them sentenced to rigorous imprisonment for two years. Appellant No. 1 was also convicted u/s 324 of IPC, while Appellant No. 2 was convicted u/s 324/34 of IPC and sentenced to RI for one year. All the sentences were to run concurrently.

Appellant No. 3 Nand Kishore died during the pendency of appeal. His appeal has, therefore, abated.

According to prosecution, on 21.1.1997 at about 6 O''clock in the evening, at village Kupna, complainant Mukesh Choubey was returning to his house alongwith his brother Rajendra, after tying his cattle in his cattle house near ''Hanuman temple''. At that juncture, Appellants No. 1 and 2, namely, Dirgan Lodhi and Betalal Lodhi armed with farsa and axe interrupted them on the way and assaulted Mukesh Choubey with farsa and axe. Complainant Mukesh tried to prevent the blow by his right hand and sustained injuries in his right hand. Complainant Mukesh Choubey and his brother Rajendra tried to run away, but they were chased by Appellants No. 1 and 2. By the time they reached the doors of their uncle Ramswaroop, Appellants Dirgan and Betalal reached there and began assaulting deceased Rajendra (hereinafter to be referred as deceased) with farsa and axe. Other Appellants, namely, Nand Kishore (since deceased), Jagbandhan, Rajaram, Suresh, Niranjan, Rakesh, Shiv Prasad, Shri and Pancha also emerged there armed with farsa, axe and lathi and they attacked the deceased and all of them gave him repeated blows by means of farsa, axe and lathi with intent to kill him. Complainant Mukesh Choubey somehow escaped and rushed towards his house and shouted for help, then the Appellants fled away. Complainant Mukesh and his uncle Ramswaroop and few Ors. then took injured Rajendra to the hospital, but he succumbed to his injuries and expired on way to hospital.

The FIR of the incident was lodged by Mukesh Choubey (PW1) at Police Station Pavai District Panna. On the basis of his report, offence was registered against the Appellants and investigated. Merg intimation was also recorded at the instance of complainant Mukesh and merg inquest report was also prepared. Dead body of deceased Rajendra was sent for post-mortem examination. Complainant Mukesh was also sent for medical examination. Blood stained earth and plain earth were seized from the spot. Blood stained clothes of the deceased Rajendra received after postmortem examination were also seized by the police. On the arrest of Appellants, farse, axe and lathi used in the commision of offence and as well as their blood stained clothes were seized at the instance of Appellants. The seized article were sent for forensic examination. After due investigation, Appellants were prosecuted u/s 302, 307, 147, 148, 149, 341, 323, 324 and 201 of IPC and were put to trial.

Appellants denied the various charges framed againt them and pleaded false implication due to enmity.

Learned Special Judge, after trial and upon appreciation of the evidence adduced in the case, convicted and sentenced the Appellants as aforesaid by the impugned judgment. Hence, this appeal.

Argument of both the sides were heard. Record of the lower Court perused.

The conviction of the Appellants is founded mainly on the evidence of three eye-witnesses, namely, Mukesh Choubey (PW1), Ramswaroop (PW13) and Lallan Bai (PW14) coupled with other corroborative evidence.

Learned counel for the Appellants submitted that the trial Court gravely erred in placing reliance on the inconsistent and contradictory evidence of related and interested witnesses in absence of any independent corroboration. Learned Counsel for the Appellants also submitted that the trial Court failed to notice that deceased Rajendra Kumar and his brother Mukesh Choubey (PW1) were criminals and a case u/s 307 of IPC was also pending against them as well against the husband and father-in-law of PW14 Lallan Bai on the basis of report lodged by Appellant No. 11 Pancha and therefore, all his family members were falsely implicated.

We have carefully examined the entire evidence on record. PW1 Mukeh Choubey is the brother of deceased Rajendra. PW1 Mukesh deposed in his evidence that at the relevant time at about 5:50 p.m., when he was coming back to his house alongwith his brother Rajendra after tying his cattle in the cattle house, Appellants No. 1 and 2, namely, Dirgan Lodhi, and Betalal intercepted them on the way. Both these Appellants were armed with farse and axe repectively. Appellant Betalal tried to assault Rajendra and Appellant Dirgan gave farse blow to the complainant (PW1) injuring his hand. When both of them rushed and reached near the house of their uncle Ramswaroop (PW13), other Appellants also emerged there being armed with weapons. Appellant Nand Kishore (since deceased) and Appellant Niranjan were holding farse and Appellants Rajaram, Jagbandhan, Shri and Rakesh were armed with axe, while Appellants Shiv Prasad, Suresh and Pancha were armed with lathi and all of them began assaulting his brother Rajendra on the exhortation of Appellant Nand Kishore. PW1 Mukesh somehow escaped and shouted for help and when he came back, hi brother Rajendra was lying in badly wounded condition and Appellants had fled away. Injured Rajendra was taken to the hospital, but he succumbed to his injuries on way to hospital. Then, he went to police alongwith his uncle Ramswaroop and Prakash and lodged the FIR (Ex.P-1) at the police station, which was recorded at Police Station Pawai by SHO, A.K. Pandey(PW15).

PW13 Ramswaroop and PW14 Lallan Bai also corroborated the aforesaid version. According to PW13 Ramswaroop, on 21 January at about 6 O''clock when he was coming back alongwith his child Sandeep to his house after tying his cattle, he noticed that scuffle was going on between the Appellants and deceased and his brother Mukesh and all the Appellants were armed with axe, farse and lathi. He, therefore, entered into his house with his child and watched the whole incident by riding over the wall of his house. He saw that all the Appellants were badly assaulting the deceased.

According to PW14 Lallan Bai, she was also standing at the doors of her house at the time of occurrence and had watched the whole incident, she had seen that Appellants Dirgan and Betalal were hurling abuses to the deceased and his brother Mukesh Choubey and Appellant Dirgan had first assaulted Mukesh (PW1) and then other Appellants also assembled there armed with weapons and attacked the deceased and he was thrashed to death.

Dr. M.L. Choudhary (PW4), who conducted the autopsy on the dead body of deceased Rajendra Kumar, found following ante-mortem injuries on his body:

(i) Incised wound on left cheek size 6" long, 2" wide, 5" deep slight oblique present. Some of injured area is fractured. Blood spot scattered on face. Injury is caused by sharp object. Wound margin sharp, ante-mortem in nature.

(ii) Incised wound 1-1/2" long, 1" wide, 3" deep at the nasal area. Nose bone fractured. Injury is caused by sharp object. Wound is slight oblique, ante-mortem in nature.

(iii) Incised wound 2" long, 2" wide, 1/2" deep at just above the right eye. Injury is caused by sharp object. Ante mortem in nature, margin of wound is sharp.

(iv) Incised wound 2-1/2" long, 1" wide, 3" deep on scalp at right frontal area. Injury is caused by sharp object. Fracture of the right frontal bone, brain tissue is injured. Wound is ante-mortem in nature.

(v) Abrasion 3-1/2" long, 1/2" wide at epigastric region. Injury is caused by sharp object. Ante-mortem in nature.

(vi) Incised wound 5-1/2" long, 2" wide, 1/2" deep present over left upper arm at left shoulder. Injury is caused by sharp object. Ante mortem in nature.

(vii) Incised wound 3-1/2" long, 1/2" wide, 1-1/2" cm. deep at left scapular region. Injury is caused by sharp object. Ante-mortem in nature.

(viii) Incised wound 2" long, 1-1/2" wide at back at left iliac region. Injury is caused by sharp object. Ante-mortem in nature.

(ix) Abrasion 3" long, 2" wide at left iliac region. Injury is caused by hard and blunt object. Nature of abrasion is ante-mortem.

(x) Contusion 4 cm. long, 3 cm. wide present on right thigh. Injury is caused by hard and blunt object. Contusion is ante-mortem in nature.

(xi) Incised wound 2-1/2" long, 1" wide at the palm at root of right thumb. Injury is caused by sharp object. Ante-mortem in nature. This wound indicated as a defence wound.

In the opinion of Dr. M.L. Choudhary (PW4), cause of death of deceased Rajendra was shock due to excessive bleeding from injury on the vital parts of his body. He also opined that injuries were sufficient in the ordinary course of nature to cause death. The post-mortem report of deceased Rajendra given and signed by Dr. M.L. Choudhary (PW4) is also on record.

There has been no cross-examination of Dr. M.L. Choudhary (PW4) as to the number of wounds and the location and character of wounds found on the dead body of deceased Rajendra. There are no cogent reasons to disagree with the aforesaid medical evidence of Dr. M.L. Choudhary (PW4).

The principal contention of the Appellants has been that all the Appellants have been falsely implicated due to previous enmity and because of the criminal prosecution of the deceased and his brother Mukesh Choubey (PW1) and few Ors. on the report lodged by Appellant No. 11 Pancha, and that none of the so called eye-witnesses actually witnessed the incident. It was further submitted that Appellants Pancha, Suresh and Shiv Prasad were alleged to have been armed with lathi and no injuries of lathi were found on the dead body of deceased Rajendra nor any blood stains were found on their clothes and lathi alegedly seized from these three Appellants; they were also falsely implicated on account of previous enmity.

Now, PW1 Mukesh is an injured eye-witness. His presence on the scene of occurrence, therefore, cannot be doubted, PW13 Ramswaroop, uncle of the deceased and Lallan Bai (PW14) also reside near the place of occurrence. Their names are also reflected in the FIR (Ex.P-1) as eyewitnesses. Therefore, there are no cogent reasons to suspect that they witnessed the incident. However, PW1 Mukesh Choubey has admitted in his evidence that he was facing a criminal prosecution alongwith deceased Rajendra and few Ors. u/s 307 of IPC on the basis of the report lodged against them by Appellant No. 11 Pancha. This fact is also admitted by PW13 Ramswaroop, who is the uncle of the deceased. PW14 Lallan Bai also admitted that her husband and father-in-law were also accused in the case u/s 307 of IPC instituted on the report lodged by Appellant Pancha. PW1 Mukesh Choubey also admitted in para 8 of his deposition that all the Appellants except Appellant Nand Kishore (since deceased) come from the same family. Therefore, the evidence of the aforesaid three eye-witnesses has to be carefully scanned.

PW1 Mukesh Choubey and PW13 Ramswaroop have deposed that three Appellants Pancha, Suresh and Shiv Prasad were armed with lathi at the time of incident, though a contradictory statement is given by PW14 Lallan Bai, inasmuch as she said that Appellant Shiv Prasad was armed with axe, whereas lathi is said to have been seized from each of these three Appellants No. 11, 6 and 9, namely, Pancha, Suresh and Shiv Prasad by IO A.K. Pandey (PW15). Their blood stained clothes were also seized by IO A.K. Pandey (PW15). However, as per FSL report (Ex.P-63), no blood stains were found upon lathi and clothes seized from these three Appellants.

It is also borne out from the medical evidence given by Dr. M.L. Choudhary (PW4) that most of the injuries found on the dead body of deceased were incised wounds caused by hard and sharp object and there was hardly any such remarkable injury, which could have been caused by lathi. No doubt, when an offence is committed by member of an unlawful assembly in prosecution of common object of that assembly, an overt act by each member of such assembly is not necessary. Yet the absence of such injuries as could be caused by lathi blows on the body of deceased assumes significance in the backdrop of the enmity and the criminal prosecution of complainant party at the behest of one of the Appellants. In such a case, the tendency to involve and implicate all the members of the family cannot be overlooked. Moreover, had these three Appellants, namely, Pancha, Suresh Lodhi and Shiv Prasad allegedly armed with lathi, been present with co-Appellants on the scene of occurrence, they would have also wielded lathi blows on the body of the deceased and caused consequent injuries. Therefore, in view of the fact that, no such injury, as could be caused by lathi blow, were found on the dead body of deceased and no blood stains were found on the lathi and clothes allegedly seized at the instance of these three Appellants, namely, Pancha, Suresh Lodhi and Shiv Prasad, the presence of these three Appellants on the place of occurrence itself becomes doubtful.

There is also evidence of DW2 Jaipal Singh that Appellant Pancha had been to village Devgaon at the relevant time in connection with the treatment of his grand-daughter. DW2 Jaipal appears to be an independent witness. It is also reflected from the evidence of Investigating Officer, A.K. Pandey (PW15) that Appellant Pancha was arrested subsequently on 2.2.1997, while the other Appellants were arrested earlier. As such the plea of alibi taken by Appellant Pancha appears to be plasusible.

Be that as it may, as said earlier, the presence of three Appellants, namely, Pancha, Suresh Lodhi and Shiv Prasad on the place of occurrence is doubtful and consequently their complicity in the commission of the offence becomes doubtful and they are entitled to benefit of doubt.

However, as regards the other Appellants, there are no cogent reasons to doubt their presence on the scene of occurrence. Both PW1 Mukesh Choubey and PW13 Ramswaroop have categorically deposed that the other remaining Appellants, namely, Dirgan, Betalal, Shri, Niranjan, Jagbandhan, Rakesh and Bhai @ Rajaram were present on the scene of occurrence and they all were armed with weapons like farse and axe and they all were assaulting the deceased. Though, the evidence of PW14 Lallan Bai does not inspire confidence and she appears to have given an exaggerated version, yet there are no cogent reasons to doubt the evidence of PW1 Mukesh Choubey and PW13 Ramswaroop as given against the aforesaid seven Appellants.

Although, PW1 Mukesh and PW13 Ramswaroop were cross-examined at length, but nothing has been elicited so as to view with suspicion the evidence given by them as against these seven Appellants. Although, PW13 Ramswaroop deposed in cross-examination that PW1 Mukesh had rushed from the spot after he was injured by farsa, but that does not belie the statement of PW1 Mukesh Choubey that when he was injured by Appellant Dirgan and was running, the other Appellants abovenamed emerged there armed with weapons and began assaulting the deceased. Besides, there is positive evidence of PW13 Ramswaroop to the effect that he had seen all the seven Appellants, namely, Dirgan, Betalal, Shri, Niranjan, Jagbandhan, Rakesh and Bhai @ Rajaram assaulting the deceased and all these Appellants were armed with deadly weapons like axe and farsa.

The evidence of PW1 Mukesh Choubey and PW13 Ramswaroop cannot be rejected on the ground that they have not been able to describe the distinct landing of blow by each of these Appellants. It is often not possible to watch and state with exactitude each blow wielded by each person when several persons are assaulting with similar weapons. On the other hand, as many as eleven injuries including numerous incised wounds found by Dr. M.L. Choudhary (PW4) on the dead body of the deceased corroborate their version that the seven Appellants were armed with lethal weapons and they assaulted the deceased.

The evidence of PW1 Mukesh Choubey and PW13 Ramswaroop cannot be rejected merely on the ground that they were closely related to the deceased. As reiterated by the apex Court in the case Pulicherla Nagaraju @ Nagaraja Reddy v. State of Andhra Pradesh, reported in AIR 2006 SCW 4143, that the evidence of a witness cannot be discarded merely on the ground that he is either partisan or interested or closely related to the deceased, if it is otherwise found to be trustworthy and credible.

Although PW10 Kaliya has not supported the prosecution case and not deposed against any of the Appellants, but that by itself cannot be a ground to doubt the credible evidence of other eye-witnesses. As observed by the apex Court in the case of Pattu Lal Vs. State of Punjab, , evidentiary value of a deposition which is otherwise admissible is not just wiped out in the absence of corroboration and a deposition for its quality may be safely accepted to be correct even in the absence of corroboration, when it is found reliable.

Although, deceased Rajendra and PW1 Mukesh were facing criminal prosecution u/s 307 of IPC on the report instituted by one of the Appellants, namely, Pancha, but that by itself cannot be a ground to reject the evidence of PW1 Mukesh Choubey in entirety. On the other hand, this could have been a motive for these Appellants to commit the crime and eliminate the deceased and injure the complainant because enmity is a double edged weapon.

Upon close scrutiny of the evidence of PW1 Mukesh Choubey and PW13 Ramswaroop, their testimony as given against seven Appellants, namely, Dirgan, Betalal, Shri, Niranjan, Jagbandhan, Rakesh and Bhai @ Rajaram to the effect that they were armed with formidable weapons and asaulted the deceased, is found to be cogent and trustworthy. Few contradictions and omissions here and there in their testimony are not vital in character and they do not affect the veracity of evidence given by them against aforesaid seven Appellants. Needless to repeat that their evidence also stands duly corroborated by the medical evidence given by Dr. M.L. Choudhary (PW4), who found as many as eleven external injuries on the dead body of the deceased.

It was thus fully established that seven Appellants, namey, Dirgan, Betalal, Shri, Niranjan, Jagbandhan, Rakesh and Bhai @ Rajaram being armed with deadly weapons assembled on the scene of occurrence and assaulted the deceased causing numerous injuries resulting into his death. When these Appellants, seven in number, assembled on the scene of occurrence being armed with weapons like spade (farse) and axe and used these weapons in assaulting the deceased and caused as many as eleven injuries on his person including several incised wounds on the vital and delicate parts of his body, resulting into his death, it was clearly deducible that they formed an unlawful assembly with the common object of causing the death of deceased and in prosecution of that common object, they assaulted the deceased with intention to cause his death, no matter which of the Appellants caused which injury to the deceased or who caused fatal injury. It is well settled as reiterated by the apex Court in the cases of State of Rajasthan Vs. Nathu and Others, , and Kallu @ Masih and Others Vs. State of Madhya Pradesh, , that u/s 149 of Code of Criminal Procedure each member of unlawful assembly is vicariously liable for the criminal act of any other member of that assembly committed in prosecution of the common object of such assembly and it is not necessary to record a definite or specific finding as to which one of the member of unlawful assembly caused the fatal injury.

Thus, the conviction of the seven Appellants, namely, Dirgan, Betalal, Shri, Niranjan, Jagbandhan, Rakesh and Bhai @ Rajaram recorded by the trial Court u/s 302/149 of IPC as also u/s 148 of IPC does not suffer from any infirmity and deserves to be maintained. However, after recording their conviction u/s 148 of IPC, their conviction u/s 147 of IPC was unnecessary and deserves to be set aside.

In view of the evidence of PW1 Mukesh and the incised wounds found on his person by Dr. M.L. Choudhary (PW4), the conviction of Appellants No. 1 and 2 u/s 324 and 324/34 respectively also does not suffer from any infirmity and the sentence of RI for one year awarded to Appellants No. 1 and 2 for the offence u/s 324 of IPC and imprisonment for two years awarded to seven Appellants, namely, Dirgan, Betalal, Shri, Niranjan, Jagbandhan, Rakesh and Bhai @ Rajaram u/s 148 of IPC, besides the sentence of life imprisonment with fine of Rs. 1,000/- awarded to them u/s 302/149 of IPC, also deserves to be maintained.

In view of the foregoing discussion, extending benefit of doubt to Appellants No. 6, 9 and 11, namely, Suresh, Shiv Prasad and Pancha, we set aside their conviction and sentence u/s 302/149 and Section 147 of IPC. We also set aside the conviction and sentence of other Appellants u/s 147 of IPC. However, we uphold the conviction and sentence of Appellants No. 1, 2, 4, 5, 7, 8 and 10, namely, Dirgan, Betalal, Jagbandhan, Bhai @ Rajaram, Niranjan, Rakesh and Shri @ Shriram u/s 302/149 and Section 148 of IPC. We also uphold the conviction and sentence of Appellants No. 1 and 2 u/s 324, 324/34 of IPC.

Appellants Suresh, Pancha and Shiv Prasad are on bail. Their bail bounds shall stand discharged. Appeal is accordingly disposed of.