Jham Singh Gond vs State of Madhya Pradesh

Rakesh Saksena, J.—Appellant has filed this appeal against the judgment dated 12-101998 passed by Second Additional Sessions Judge, Seoni, in Sessions Trial No. 40 of 1997, convicting the appellant for the offence u/s 302 read with section 34 of the Indian Penal Code and sentencing him to imprisonment for life.

In short, the prosecution case is that on 6-2-1997 at about 9.15 A.M. in village Khamariya Raiyat, Teeju Gond (deceased) was going to Nursery on a cycle. When he reached in front of the house of Gyani Gond, accused Raman Singh and Jhamsingh (appellant) assaulted him by an axe and lathi. It is said that accused Raman Singh inflicted 3-4 blows of axe on neck and head of Teeju whereas Jhamsingh assaulted him by lathi. Teeju fell down at the spot. Mother of Teeju viz., Chamribai (PW-4) saw the incident from her house and went at the spot. Pohap Singh Ahir (PW-2), who was also there, asked accused persons not to assault Teeju. Several other people of the village reached at the spot to whom Chamri Bai narrated the incident. Chamribai went to the house of Ganaram, Sarpanch (PW-1) and informed him about the incident. Ganaram, after viewing the spot went to police station Kanhiwada and lodged the first information report (Ex.P/1) on the same day at about 11.45 A.M. Police reached at the spot, prepared inquest and spot map (Ex.P/3) and sent the dead body to Primary Health Centre, Kanhiwada, where Dr. K. K. Sevte (PW-5) performed the post mortem examination of the dead body and gave his report (Ex.P/5). He found three incised wounds on the head of the deceased, one lacerated wound and one blunt injury on the right side of his forehead. Skull bones and mandible bone were found fractured. Some of the teeth had also fallen out from the jaw. In his opinion, deceased died due to shock and haemorrhage mainly due to injury No.3. The injuries were caused by hard cutting object and hard and blunt object. The injuries were ante-mortem in nature. After investigation charge sheet was filed and the case was committed for trial.

Appellant and accused Raman Singh were charged for the offence u/s 302 read with section 34 of the I.P.C. They abjured their guilt and pleaded false implication due to past enmity.

Prosecution examined seven witnesses viz., Ganaram (PW-1), Pohap Singh (PW-2), Shivatiya Bai (PW-3), Chamribai (PW-4), Dr. K. K. Sevte (PW-5), Gangaram (PW-6) and K. S. Bhatiya, Investigating Officer (PW-7). Witnesses Chamribai, Shivatiyabai and Pohap Singh were examined as eye-witnesses. Dr. K. K. Sevte was examined to prove injuries found on the body of the deceased. Learned Additional Sessions Judge relying upon the evidence of aforesaid witnesses held both the accused persons guilty for the offence u/s 302 read with section 34 of the I.P.C. and convicted and sentenced them as mentioned above.

Both the appellants filed their appeal before this Court. However, during the pendency of the appeal accused Raman Singh died, as such his appeal stood abated.

Shri Siddharth Datt, learned Counsel for the appellant Jhamsingh, submits that though witnesses Pohap Singh, Shivatiya and Chamri Bai purported to be eye-witnesses, but in fact they had not witnessed the occurrence. According to him, their evidence is not reliable. There are material contradictions in the statements of Chamribai and Shivatiya Bai, which render their testimony untrustworthy. From the evidence of witness Chamri Bai, presence of witness Pohap Singh becomes doubtful. He submits that from the evidence on record it is not established that both the accused persons had assaulted the deceased in furtherance of the common intention, as such the appellant is not liable to be convicted with the aid of section 34 of the I.P.C. He further submits that no evidence about any motive on the part of the appellant has been produced. On the strength of the aforesaid grounds counsel submits that the conviction of appellant deserves to be set aside. He placed reliance on the decisions rendered in the case of Jarnail Singh v. State of Punjab AIR 1982 SC 70 and Babuhai Ranchodbhai Patel and another Vs. State of Gujarat, .

On the other hand, learned panel lawyer for the State Shri S. Pandit submits that the evidence of eye-witnesses viz., Pohap Singh and Chamribai is reliable. Their evidence is corroborated by the medical evidence of Dr. K. K. Sevte. He submits that participation of the appellant is established from the evidence of eye-witnesses, which is corroborated by medical evidence. He submits that in the case of direct evidence proof of motive is not essential. Learned panel lawyer in support of his argument cited the case of Dashrath Singh v. State of M.P. (1997) 1 SCC 197 and Sunil Kumar Vs. The State Govt of NCT of Delhi, .

PW-3 Shivatiya, wife of deceased, deposed that about 3-4 months before when her husband had gone out her house for labour work, she was sitting in the courtyard along with her mother-in-law Chamribai. Chamribai shouted that Jhamsingh and Raman Singh have killed Teeju. She and her mother-in-law went at the spot and found Teeju lying at the spot with injuries on his neck and head. Though in cross examination she stated that she had seen Raman Singh and Jhamsingh assaulting her husband, but this fact is not found in her statement recorded by police u/s 161 of the Cr.P.C. The fact that she was sitting in the courtyard along with her mother-inlaw is also found missing from her police statement. Thus, her evidence does not help the prosecution in incriminating the appellant.

Chamribai (PW-4), mother of deceased, deposed that deceased was going to forest. When he reached near the house of Gyan Bhoi, Raman Singh assaulted him with an axe and appellant Jhamsingh assaulted him by lathi. Raman Singh inflicted 3-4 blows of axe causing injuries on his neck and head. Teeju fell down there. When she shouted, accused persons ran away towards the lane. She reached at the spot and found her son dead. She started weeping then called village people and asked Kotwar and Mukaddam to report the incident to police. In cross- examination she stated that in her courtyard she was sitting alone and nobody was there. When she had went at the spot, nobody was there and his son was lying alone. She admitted that from her house, the house of Gyansingh is too far away and the house of Gyansingh is not visible from her house. She had not heard the cries of Teeju. She also admitted that accused persons had also not shouted. She stated that she had informed her daughter-in-law Shivatiya Bai about the death of Teeju when she was inside the house with her child. According to her, it was she, who had informed about the incident to Ganaram, Pohap Singh and Rambharose then only they had come to know about the incident. She stated that Teeju had reached at such a distance that he was not visible from her courtyard and because of her bad eye sight she could not see well. When people of the village shouted that her son was killed by accused persons then only she came to know and reached at the spot where she found her son lying dead. She had found axe and lathi lying on the spot. In the last, she stated that she had seen accused persons going in the street with axe and lathi, therefore, she thought that accused persons would have killed her son. Taking into consideration the inconsistencies and discrepancies in her evidence, her testimony as an eye-witness does not appear to be worthy of credence. Though she stated in the examination-in-chief that she witnessed the incident, but in the cross-examination she admitted that she came to know about the incident only when it was informed by the village people. Thus, her evidence does not appear to be reliable.

On examining the evidence of witness Pohap Singh (PW-2) it is seen that he deposed that when he was going to Nursery, deceased was coming behind him. When deceased had reached in front of the street of Gyani, appellant assaulted him with the lathi and accused Raman Singh assaulted him with an axe. Both had inflicted blows by their respective weapons on his head. Teeju had died at the spot. On his asking the accused persons to refrain from assaulting, they went away. Though this witness in cross-examination admitted that he had been at a long distance from the deceased and he had seen the incident from the distance of about a furlong, but in view of the fact that he is a rustic villager, it cannot be held that he had not seen the incident. In para 3 of his evidence he categorically denied the suggestion that he was at such a distance that he could not have seen the incident. Though he was ahead of the deceased but he had looked back when he had heard the sounds of axe and lathi.

On closely scrutinizing the evidence of this witness there appears nothing to render his testimony unreliable. From the evidence of Dr. K. K. Sevte (PW-5) it is established that he had found three incised wounds on the head of deceased:

(1) Incised wound 5"x3/4"x2-1/4" on right side of skull on parieto occipital region.

(2) incised wound 3-1/2"x3/4"x1-3/4" on left parietal region.

(3) Incised wound 6"x1/4"x4-1/4" on skull extending from left occipital region to vertebral column (cervical).

(4) Lacerated wound 2-1/2"3/4"x1/2" 1-1/2"above right eye brow on the forehead.

(5) Blunt injury causing fracture of mandible resulting in falling out of teeth.

In his opinion, the incised wounds were caused by hard and sharp cutting object whereas injuries No. 4 & 5 were caused by hard and blunt object. All the injuries were ante-mortem in nature and the deceased had died due to shock and haemorrhage

On proper scrutiny with care and caution of the testimony of Pohap Singh (PW-2) and finding it corroborated by medical evidence, we find ring of truth in it and find his testimony acceptable and reliable. Not even a remote possibility has been suggested as to why he should speak lie for implicating the appellant. He appears to be an independent and reliable witness.

Placing reliance on the case of Jarnail Singh (supra) learned Counsel for the applicant submits that in the circumstances of the case appellant cannot be convicted with the aid of section 34 of the I.P.C. as the main cause of death of the deceased was the injuries caused by accused Raman Singh. We are not inclined to accept this submission made by learned Counsel for the appellant. There is clear evidence of Pohap Singh (PW-2) that both the accused persons had assaulted simultaneously and had left the spot together after causing injuries to deceased. From the manner in which the offence was committed it cannot be held that there was no prior concert between both the accused persons. In the case of Jarnail Singh (supra) the Apex Court did not find possible to convict appellant Jarnail Singh for the offence u/s 302 read with section 34 of the I.P.C. since there was no pre-concert between the co-accused and the appellant nor it was reflected that there was a meeting of minds between them before the offence took place. In the present case, the circumstances clearly indicate the pre-concert between the two accused persons before the assault took place. The ratio of the case of Babubhai Ranchodbhai Patel (supra) is also not applicable in the circumstances of the present case because in that case the incident had happened out of a sudden quarrel and one accused had caused vital injury and other accused inflicted only a simple injury. In the case in hand, the present appellant had caused injuries by lathi on the skull of the deceased, which had resulted into fracture of mandible. This act was simultaneous with the act of coaccused, who had inflicted three blows by sharp side of an axe on the skull of deceased.

In the case of Dashrath (supra) the Apex Court observed:

It is clearly established by the evidence of these witnesses that the appellants assaulted the deceased in pursuance of their common intention to cause his death. Appellant-1 was armed with a kulhari and he inflicted serious injuries on the head of the deceased, as is clear from the evidence of Dr. Khare, who performed the post-mortem examination. It is no doubt true that the other two appellants were merely armed with lathis but the medical evidence shows that lathi blows were also given on the head of the deceased and it is evidence that these two appellants shared common intention with appellant-1 to cause the death of the deceased. Each of the appellants must, therefore, be held to be guilty of the offence u/s 302 read with Section 34 of the Indian Penal Code.

In the case of Sunil Kumar (supra) the Apex Court held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on the sole testimony of a single witness. But, if there are doubts about the testimony the courts will insist on corroboration. It is for the court to act upon the testimony of witnesses. It is not the number, the quantity, but the quality that is material. The time-honored principle is that evidence has to be weighed and not counted. In this case it was also held that where accused gave several knife blows on the person of the deceased while another accused merely caught hold of him to facilitate the assault, section 34 was clearly attracted.

Taking into consideration the aforesaid circumstances, we are of the view that the trial Court has considered and appreciated the evidence of witness Pohap Singh in proper perspective and has rightly come to finding of guilt of the appellant. We see no illegality in the impugned judgment requiring any interference therein. Accordingly, the appeal fails and is dismissed.