Govind @ Bhariya & Another vs State Of Madhya Pradesh

This common judgment shall govern the disposal of Cr.A.No.1893/2004 & Cr.A.No.2010/2007, as both the appeals arise out of same Crime

No.100/2002 registered at Police Station Shahpura, District Dindori for the offence punishable under Sections 302/ 34 of the IPC.

Criminal Appeal No.1893/2004 has been filed by the appellant Shahjav Singh @ Koriya against the judgment dated 16/08/2004 passed by ASJ,

Dindori in S.T. No.139/2002, whereby learned ASJ found the appellant guilty for the offence punishable under Section 302/34 of IPC and sentenced

him for life with fine of Rs.1,000/- and in default of payment of fine amount further R.I. for four months.

Criminal Appeal No.2010/2007 has been filed by the appellants Govind @ Bhariya and Shiv Charan against the judgment dated 06/09/2007 passed

by ASJ, Dindori in ST No.139/2002, whereby learned ASJ found the appellants guilty for the offence punishable under Section 302 of the IPC and

sentenced them for life with fine of Rs.1,000/- each and in default of payment of fine amount further R.I. for three months.Â

As per the prosecution case on 18/06/2002 at about 6:00 AM deceased Bharosa Singh Paraste went to attend call of nature. Rambai (PW-3/1)

wife of deceased also went behind him along with her cattle. On the way, as soon as deceased Bharosa crossed the border of Churaman’s field,

appellants jumped down from the Mahua tree and appellant Govind @ Bhariya assaulted him by means of farsa on his neck, due to which he

sustained injury on his neck and fell down. Thereafter, appellant Shiv Charan also assaulted him by Balua (a sharp edged object). Appellant Shahjav

Singh @ Koriya was also present there. Due to injuries Bharosa Singh Paraste died on the spot. After the incident appellants ran away from the spot.

It is alleged that due to old enmity the appellants assaulted the deceased Bharosa Singh Paraste. Ram Bai (PW-3/1) saw the incident and after the

incident she went back to village and informed the villagers about the incident and also lodged the report (Ex.P-4/6) of incident at Police Station

Shahpura, District Dindori, which was written by Sub-Inspector Sanjay Sharma (PW/14). On that report, he registered Crime No.100/02 for the

offence punishable under Section 302/ 34 of IPC against the appellants and investigated the matter. During investigation he went to the spot, where he

found the injured dead body of deceased Bharosa Singh Paraste. He prepared the spot map (Ex/P/7) and also seized blood stained and simple soil

from the spot and prepared seizure memo (Ex.P/16) and also prepared inquest memo of dead body of Bharosa Singh Paraste (Ex.P/8) and sent it to

Community Health Center Shahpura for postmortem, alongwith an application (Ex.P/14-A), where Dr. I.S. Thakur (PW-10/11) conducted the autopsy

of dead body of deceased Bharosa Singh Paraste and gave Postmortem report (Ex.P-14/10). During investigation Sanjay Sharma (PW/14) also

recorded the statements of prosecution witnesses and also arrested the appellant Shahjav Singh @ Koriya and prepared arrest memo (Ex.P/21). The

other two appellants i.e. Govind @ Bhariya & Shiv Charan could not be found, so Police filed charge-sheet in their absence before learned Judicial

Magistrate First Class, Dindori, who declared appellants Govind @ Bhariya and Shiv Charan absconded and issued perpetual warrant against them

and committed the case against remaining appellant Shahjav Singh @ Koriya to the Court of Sessions. On that S.T.No.139/02 was registered.

Learned Additional Sessions Judge, Dindori framed charge against appellant Shahjav Singh @ Koriya for the offence punishable under Section 302

read with Section 34 of IPC and tried the case. Appellant Shahjav Singh @ Koriya abjured his guilt and took the defence that he is innocent and has

falsely been implicated in the offence. However, after the trial learned ASJ found the appellant Shahjav Singh @ Koriya guilty for the offence

punishable under Section 302/34 of IPC and sentenced him as aforesaid. Being aggrieved from that judgement appellant Shahjav Singh @ Koriya

filed Cr.A.No.1893/2004.

On 03/04/2006 Police arrested the appellant Govind @ Bhariya and on 11/04/2006 arrested the appellant Shiv Charan in compliance of perpetual

arrest warrant issued against them and filed supplementary charge-sheet against them before the learned JMFC, who again committed the case to the

Court of sessions. Learned ASJ again framed charge against both of them for the offence punishable under section 302 and in alternate Section

302/34 of IPC and tried the case. They also abjured their guilt and took the defence that they are innocent and have falsely been implicated in the

matter as at the time of incident they were not present in the village and in this regard they also produced defence witnesses Somvati Bai (DW/1) and

Mewa Bai (DW/2). However after the trial, learned ASJ also found the appellants Govind @ Bhariya & Shiv Charan guilty for the offence punishable

under Section 302 of IPC and sentenced them as aforesaid. Being aggrieved from that judgement appellants Govind @ Bhariya & Shiv Charan filed

Cr.A.No.2010/2007.

Learned counsel for the appellants Govind @ Bhariya and Shiv Charan submitted that except Rambai (PW-3/1), who is the wife of deceased

Bharosa Singh Paraste, prosecution did not produce any other eye witness of the incident. Her statement was not corroborated by the statement of

Savita Bai (PW/7) who reached the spot soon after the incident. There are many contradictions and omissions in her statement regarding her

presence on the spot at the time of the incident. She in Para-10 of her cross-examination clearly admitted that she reached the spot after the incident,

which shows that she did not see the incident and made false statement only due to old enmity against the appellants. No weapons which were

allegedly used in the incident was seized from the possession of the appellants. Although, Bhadiya Bai (PW13/1) deposed that at the time of incident

she saw the appellants running from the spot, but in this regard her statement is also contradictory. Earlier during trial of Shahjav Singh @ Koriya,

when statement of Bhadiya Bai (PW-13/1) was recorded by the trial Court she deposed that she did not see the appellant running from the spot, so

her statement that she saw the appellants Govind @ Bhariya and Shiv Charan running from the spot at the time of incident is also not believable.

Learned trial Court without appreciating these facts wrongly found appellants Govind @ Bhariya and Shiv Charan guilty for the aforesaid offence.

Learned counsel for the appellant Shahjav Singh @ Koriya submitted that according to prosecution story apart from complainant Rambai (PW-3/1),

Bhadiya Bai (PW-13/1), Chironja Bai (PW/2) and Savita Bai (PW/11) had also reached the spot on hearing shouts and they saw the appellants

running away from the spot, but they turned hostile and did not support the prosecution story. There are many contradictions and omissions in the

statement of Rambai (PW-3/1) so called eyewitness of the incident. She has previous enmity with appellant Shahjav Singh @ Koriya, so in the

absence of independent eye witness of the incident, her statement cannot be believe. Even otherwise, she in her Court statement deposed that at the

time of incident appellant Shahjav Singh @ Koriya caught hold of her husband Bharosa Singh Paraste’s hand and co-accused Govind @ Bhariya

and Shiv Charan assaulted him, but this fact is not mentioned in the F.I.R. (Ex.P/4) lodged by her soon after the incident, or in her case diary

statement (Ex.D/1), so in this regard her statement becomes afterthought and same can not be believed. Rambai (PW-3/1) herself admitted that

Shahjav Singh @ Koriya was not having any weapon with him at the time of incident. She also did not depose that how Shahjav Singh @ Koriya hit

the deceased Bharosa and inflicted injury on which part of his body. In these circumstances, even if it is assumed that Shahjav Singh @ Koriya was

present at the time of incident, he cannot be held guilty with the aid of Section 34 of the IPC, because no act is attributed to appellant Shahjav Singh @

Koriya. Learned trial Court without appreciating these facts wrongly found the appellant Shahjav Singh @ Koriya guilty for the aforesaid offence.

On the other hand learned counsel for the State submitted that from the prosecution evidence, guilt of all the appellants was clearly proved, so

learned trial Court did not commit any mistake in finding the appellants guilty for the aforesaid offence.

Point of determination in this appeal is whether the conviction and sentence awarded by the trial Court to the appellants Govind @ Bhariya and Shiv

Charan for the offence punishable under Section 302 of IPC and appellant Shahjav Singh @ Koriya for the offence punishable under Section 302/34

of IPC are liable to be set aside for the reasons stated in the memo of appeal and argued before this Court.

There is no ambiguity in the statements of prosecution witnesses on the point that Bharosa Singh Paraste died on 18/06/02 at about 6:00 AM in

Churaman’s field situated at village Jhagrhata Dhangaon and his death was homicidal in nature amounting to murder. In this regard Sanjay

Sharma (PW/14) clearly deposed that on 18/06/02 he was posted as Sub-Inspector at Police Station Shahpura, District Dindori. On that day at about

9:45 AM Rambai (PW-3/1) lodged the report (Ex-P/4) regarding murder of her husband Bharosa Singh Paraste. On that, he went to the spot,

where he saw the dead body of Bharosa Singh Paraste and prepared inquest report of dead body of Bharosa Singh Paraste (Ex.P-6/8) and sent it for

postmortem to Community Health Center, Shahpura alongwith application (Ex-P/14-A) and also seized blood stained & simple soil from the spot and

prepared seizure memo (Ex.P/16). In the inquest report (Ex.P-6/8) it is mentioned that the dead body of Bharosa Singh Paraste was found at

Churaman’s field near Mahua tree and injuries were present on his head, neck and other body parts and he died due to those injuries. In this

regard his statement is also corroborated from the statement of Dr. I.S. Thakur (PW-10/11) who conducted the postmortem of the dead body of

deceased Bharosa Singh Paraste and gave postmortem report (Ex.P/14). He clearly deposed that on 18/06/02 he was posted as Assistant Medical

Officer at Community Health Center, Shahpura. On that date at about 4:00 PM he started conducting postmortem of dead body of deceased Bharosa

Singh Paraste and in the postmortem he  found as many as six incised wounds on his dead body. Due to the injuries on his neck muscles, vertebra,

spinal cord and blood vessels were also cut, his parietal bone got fractured brain matter also damaged. He also deposed that Bharosa Singh Paraste

died due to hypovolemic shock and respiratory arrest and his death was homicidal in nature and duration of death is between 6 to 12 hours from the

postmortem. At this point, appellants have not given any significant challenge to the statements of the abovementioned witnesses in their

crossexamination. So there is no reason to disbelieve their statements in this regard. The injuries sustained by the deceased Bharosa Singh Paraste on

his neck and head in the incident clearly shows that the assailant caused those injuries with the intention to murder him. So from the statements of

abovementioned witnesses, it is clearly proved that Bharosa Singh Paraste died on 18/06/02 at about 6:00 AM in Churaman’s field situated at

village Jhagrhata Dhangaon and his death was homicidal in nature, which amounts to murder.  Â

On the point that appellants murdered deceased Bharosa Singh Paraste, complainant Rambai (PW-3/1) wife of deceased deposed that on the date

of incident at 6:00 AM her husband Bharosa Singh Paraste went to attend the call of nature and she also went behind him with her cattle. On the way

near Mahua tree appellants assaulted her husband Bharosa Singh Paraste. At that time appellant Govind @ Bhariya was armed with Farsa, Shiv

Charan was armed with Balua (a sharp edged weapon) and Shahjav Singh @ Koriya was empty handed and Shahjav Singh @ Koriya caught hold of

both the hands of her husband and appellants Govind @ Bhariya and Shiv Charan assaulted him by the weapons which they were carrying with them,

so her husband Bharosa Singh Paraste sustained injuries and died. After the incident appellants ran away from the spot. Thereafter, she went to the

village and informed regarding the incident to the villagers and then she went to Police Station and lodge the FIR (Ex.P4/6). Her statement is also

corroborated from the FIR, which was also proved by Sanjay Sharma (PW/14) and regarding appellants Govind @ Bhariya and Shiv Charan her

statement is also corroborated from the statement of Mahadev (PW-3), Kop Singh (PW/4), Kalyan Singh Uikey (PW/6) and Govind Pandey (PW/8),

who also deposed that soon after the incident Rambai (PW-3/1) informed them that the appellants Govind @ Bhariya and Shiv Charan murdered her

husband Bharosa Singh Paraste. In this regard prosecution story is also corroborated from the statement of Bhadiya Bai (PW-13/1), who also deposed

that at the time of incident i.e. at 6:00 AM she went to forest for picking Mahua and on hearing shouts she went to spot and saw the appellants Govind

@ Bhariya armed with farsa and Shiv Charan armed with an object, which she could not see, running away from the spot and she also saw the dead

body of deceased Bharosa Singh Paraste lying near Mahua tree.

Although Rambai (PW-3/1) is the close relative of the deceased there is no other eyewitness of the incident, but only on that ground her statement

can not be discarded. Hon'ble Apex Court in the case of State of A.P Vs. S. Rayappa & Ors, (2006) 4 SCC 516 observed:-

“By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that

he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness.

The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or

the other either because of animosity or some other reasons. The relative witness is not necessarily an interested witness. On the other hand, being a

close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate

and depose falsely against somebody and screen the real culprit to escape unpunishedâ€​.

Hon'ble Apex Court also in the case of Mallanna and others Vs. State of Karnataka, (2007) 8 SCC 523 held that as under :-

“Merely because of the witnesses being related or interested or not injured, their evidence cannot be discarded if same is otherwise found to be

credible, especially when they have supported the prosecution case in material particulars.â€​

Hon'ble apex court in the case of Brahm Swaroop & Anr. v. State of U.P., (2011)6 SCC 288 held as under :-

“Related witness â€" Evidentiary value of â€"Held: Relationship of the witness with the deceased is not a factor which affects his credibility â€

However, in such cases the court has to adopt a careful approach and analyze the evidence so as to find out its credibility. Merely because the

witnesses were close relatives of the deceased, that cannot be a ground to discard their evidence. Their relationship to one of the parties is not a

factor that affects the credibility of a witness, more so, a relation would not conceal the actual culprit and make allegations against an innocent

personâ€​.

So her statement regarding incident can not be disbelieved only on the ground that prosecution witnesses Rambai (PW-3/1)Â is relative of the

deceased and no other independent eyewitness of the incident has been produced by the prosecution to prove its case. However, in such

circumstances her statement should be analyzed carefully so as to find out its credibility.

As regard to appellants Govind @ Bhariya and Shiv Charan are concerned Rambai (PW-3/1) clearly deposed that in the incident appellant Shiv

Charan by Balua (a sharp edged object) and appellant Govind by Farsa assaulted deceased Bharosa Singh Paraste. In this regard her statement is also

corroborated by the FIR (Ex.P/4), logged by her soon after the incident which was also proved by Sanjay Sharma (PW/14) and the statements of

Mahadev (PW/3), Kalyan Singh Uikey (PW/6) and Govind Singh (PW/8) to whom she had narrated the incident soon after the incident. On that point

her statement is also corroborated from the statement of Dr. I.S.Thakur (PW-10/11), who clearly deposed that he found as many as six incised wound

on the dead body of deceased Bharosa Singh Paraste during postmortem.

Although, she in Para-10 of her crossexamination deposed that when she reached the spot, all the three accused had escaped, but there is no

contradiction in her statement in respect to seeing the accused Govind and Shiv Charan assaulting deceased Bharosa. Because she only deposed that

at the time of the incident, she was going behind deceased Bharosa Singh Paraste and when she reached the spot, all the three accused had escaped.

She did not state that she did not see the appellants assaulting her husband Bharosa Singh Paraste. Even in Para-10 of her cross-examination she also

stated that she saw the appellants assaulting her husband Bharosa Singh Paraste.

Regarding appellants Govind @ Bhariya and Shiv Charan her statement is also corroborated by the statement of Bhadiya Bai (PW-13/1), who also

deposed that when she reached the spot on hearing shouts, he saw the appellants Govind @ Bhariya armed with farsa and Shiv Charan armed with an

object, which she could not see, running away from the spot and she also saw the dead body of deceased Bharosa Singh Paraste lying near Mahua

tree. Even, Bhadiya Bai (PW-13/1) in Para-4 of her statement recorded by the trial Court during trial of appellant Shahjav Singh @ Koriya stated that

she saw the appellants Govind @ Bhariya & Shiv Charan running from the spot.

Although, appellants Govind @ Bhariya and Shiv Charan also took the defence that at the time of incident they were not at village Jhagrhata

Dhangaon and in this regard also produced Somvati Bai (DW/1) and Mewa Bai (DW/2) in their defence, Somwati Bai (DW/1) deposed that on the

date of incident the appellants were not at village Jhagrhata Dhangaon as they had gone to do labour work to other village two months before the date

of incident and they returned to village three months after the incident. Mewa Bai (DW/2) also deposed that at the time of incident appellants were

not at village and they returned two months after the incident. But Mewa Bai (DW/2) in her cross-examination clearly admitted that appellants Govind

@ Bhariya and Shiv Charan fled away from the village soon after the incident and thereafter they returned to village three months after the incident,

which clearly shows that Somvati Bai (DW/1) and Mewa Bai (DW/2) falsely deposed that on the date of incident the appellants were not at village

Jhagrhata Dhangaon. So in this regard their statements are not believable. Even appellants Shiv Charan and Govind @ Bhariya in their examination

under Section 313 of the Cr.P.C. did not disclose anything about where they were if not in the village at the time of incident. So their defence that

at the time of incident they were not at village Jhagrhata Dhangaon does not appears to be correct. On the contrary from the prosecution evidence it

is proved that appellants Shiv Charan and Govind @ Bhariya were present in the village at the time of incident and soon after the incident they

absconded and took the false plea of alibi, which is also an incriminating circumstance and strengthened the prosecution story and statement of

Rambai (PW-3/1) that appellant Govind @ Bhariya and Shiv Charan murdered the deceased Bharosa Singh Paraste.

So there is no reason to disbelieve the statement of Rambai (PW-3/1) that in the incident appellants Govind @ Bhariya and Shiv Charan assaulted

deceased Bharosa Singh Paraste by Farsa and Balua (a sharp edged weapon) respectively and thus they murdered him.

Hence, in the considered opinion of this Court learned trial Court did not commit any mistake in finding the appellants Govind @ Bhariya and Shiv

Charan guilty for the offence punishable under Section 302 of the IPC for committing the murder of Bharosa Singh Paraste.

But, so far as appellant Shahjav Singh @ Koriya’s involvement in the incidence is concerned, the statement of Rama Bai (PW/3) is not

supported by the statements of other witnesses and regarding involvement of appellant Shahjav Singh @ Koriya in the incident there is also significant

improvement in her statement. According to prosecution story, on the date of incident Bhadiya Bai (PW-13/1), Chironja Bai (PW/2) and Savita Bai

(PW/11) had also gone to pick Mahua and at the time of incident on hearing shouts they had also reached the spot and saw appellants running from

the spot. But they did not support the prosecution story regarding appellant Shahjav Singh @ Koriya and depose that they did not see the appellant

Shahjav Singh @ Koriya running from the spot. Even Pyarelal (PW/5), Kalyan Singh Uikey (PW/8) Chainsingh (PW/9) and Sunil Gond (PW/15) to

whom Rambai (PW-3/1) narrated the incident soon after the incident also did not support her statement and deposed that Rambai (PW-3/1) did not tell

them that appellant Shahjav Singh @ Koriya was also involved in the incident. On the contrary Pyarelal (PW/5) and Chainsingh (PW/9) stated that

after the incident they sent appellant Shahjav Singh @ Koriya to village Kudri for giving information of the incident to deceased Bharosa’s

daughter and her husband. So, in these circumstances the statement of Rambai (PW-3/1) cannot be believed as far as appellant Shahjav Singh @

Koriya is concerned.

Even otherwise Rambai (PW-3/1) deposed in her Court statement that at the time of incident appellant Shahjav Singh @ Koriya caught hold her

husband Bharosa Singh Paraste’s hands and co-accused Govind @ Bhariya and Shiv Charan assaulted him by Farsa & Balua respectively, but in

the FIR (Ex.P/6), which was lodged by this witness soon after the incident and in her case diary statement (Ex.D/1) it is not mentioned that in the

incident appellant Shahjav Singh @ Koriya caught hold of her husband. It is only mentioned that at the time of incident her husband was going to

attend the call of nature. On the way as soon as he crossed the border of Churaman’s field appellants jumped down from the Mahua tree and

appellants Govind @ Bhariya and Shiv Charan, who were armed with Farsa and Balua respectively assaulted her husband Bharosa Singh Paraste, so

in this regard her statement becomes an afterthought and same cannot be believed.Â

Even, for the sake of argument if it is assumed that appellant Shahjav Singh @ Koriya was also present at the time of incident, Rambai (PW-3/1)

herself admitted that Shahjav Singh @ Koriya was not having any weapon with him at the time of incident. She also did not specify that how appellant

Shahjav Singh @ Koriya assaulted deceased Bharosa Singh Paraste and caused injury on which part of his body. In these circumstances, even if it is

assumed that Shahjav Singh @ Koriya was present on the spot at the time of incident, only on the basis of mere presence of appellant Shahjav Singh

@ Koriya on the spot at the time of incident it cannot be assumed that he was also having common intention with remaining appellants Govind @

Bhariya and Shiv Charan to murder Bharosa Singh Paraste and he cannot be held guilty with the aid of Section 34 of the IPC, because from the

statement of Rambai (PW-3/1) it is not proved that appellant Shahjav Singh @ Koriya also took part in the incident or did any act at the scene.

Hon’ble Apex Court in its judgement passed in the case of Suresh v. State of U.P., (2001) 3 SCC 673 observed as under :-

“Hence an act, whether overt or covert, is indispensable to be done by a co-accused to be fastened with the liability under the section. But if no

such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34 IPC cannot be invoked

for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot

be convicted with the aid of Section 34 IPCâ€​.

So, we are of the considered view that the learned trial Court committed mistake in finding that appellant Shahjav Singh @ Koriya had also

common intention with other appellants Govind @ Bhariya & Shiv Charan in murdering Bharosa Singh Paraste and found him guilty for the offence

punishable under Section 302/34 of the IPC.   Â

Hence, Cr.A.No.1893/2004 filed by appellant Shahjav Singh @ Koriya is allowed and appellant Shahjav Singh @ Koriya is acquitted from the

charge punishable under under Section 302/34 of the IPC and Cr.A.No.2010/2007 filed by appellants Govind @ Bhariya and Shiv Charan is hereby

dismissed. The period already undergone by the appellants Govind @ Bhariya and Shiv Charan shall be set off from the period of substantive jail

sentence.

Appellant Shahjav Singh @ Koriya is on bail.

His bail bond is discharged.

Accordingly, Cr.A.No.1893/04 is allowed and Cr.A.No.2010/07 is dismissed.

A copy of this judgement be placed in the record of Cr.A.No.1893/2004.