Krishnakant Tamrakar And Another vs State Of Madhya Pradesh

These three appeals have been filed against common judgment dated 17.9.2004 passed by 2nd Additional Sessions Judge to the Court 4th Additional

Sessions Judge (FTC), Damoh in S. T. No.106/2007. All these appeals have been heard together and common judgment is being passed.

Prosecution story in brief is that the deceased along with two other persons Dabbu @ Shahjad and Mohd. Akram had been returning back from

Brick kiln when they were coming back on scooter Dabbu requested to stop scooter to urinate. When he was urinating besides road accused persons

came there in Tata Sumo vehicle. Appellants Krishnakant Tamrakar and Ramakant Tamrkar had mouser gun and other persons had lathies. They

surrounded deceased Shahid. Thereafter, accused persons Lakhan Lodhi, Raja Lodhi, Umesh Chadar, Gudda Gond and Jagat Lodhi had beaten the

deceased by lathies. He fell down on the earth. Krishnakant fired gun shot and Ramakant had also fired gun shot. They had also tried to fire

gun shots on other two persons, they ran away. Thereafter, accused persons went away from the spot in Sumo vehicle. The deceased was died

on the spot. Report was lodged at the Police Station by Mohd. Akram. Police conducted investigation and filed charge sheet. Accused persons

abjured their guilt and pleaded innocence. Trial Court held appellants guilty for commission of offence punishable under Sections 148, 302/149 of

IPC and awarded the sentence RI for three years with fine of Rs.1,000/in earlier count while RI for life with fine of Rs.4,000/- in later.

Learned counsel for the appellants Gudda and Umesh Chadar, who were armed with lathies contended that there was no injury of lathi on the body

of the person of the deceased. Hence, evidence of alleged eye-witnesses against these appellants is unreliable. Trial court has wrongly convicted

the appellants while learned counsel appearing on behalf of appellants Krishnakant and Ramakant has contended that some of eye-witnesses turned

hostile and as per FSL report gun shots were fired by one gun. Seizure witnesses have also turned hostile. Hence, conviction of appellants

Krishnakant and Ramakant is against the law.

Learned counsel for the State has contended that there is sufficient evidence against the appellants. Â All the appellants came in Tata Sumo

vehicle, some accused were armed with lathies and two persons were armed with guns. They fired gun shots and beaten the deceased by

lathies. Trial Court has rightly convicted all the appellants and awarded proper sentence.

Mohammad Akram P.W.3, Azaad @ Tamma P. W.4 and Gdabbu @ Shahzad are the eye-witnesses of the incident.

P. W.3 and P. W.5 were accompanying the deceased when he was returning back from Bricks Kiln on scooter. Both eyewitnesses deposed

that when they were returning back from Bricks Kiln Dabbu requested to stop vehicle to urinate, scooter was stopped, he alighted from vehicle and he

was urinating at one side of the road, at that time a Tata Sumo vehicle came there. Krishnakant Tamrakar, Ramakant Tamrakar, Shrikant, Lakhan

Singh, Raja Lodhi and Umesh Chadar alighted from the vehicle. Krishnakant abused and directed other persons to catch us, we ran away and

thereafter they surrounded deceased Sahid. Ramakant and Krishnakant fired gun shots at the deceased.

They had also fired on us, however, we had ran away from the spot. After some time accused persons returned back in the vehicle. When we

reached at the spot the deceased was lying on the earth. P. W.3 reached on the spot and lodged report. Thereafter, Police came on the spot and

prepared spot map Ex. P.7. Patwari also prepared spot map Ex. P.8. In crossexamination P.W.3 deposed that accused persons who were armed

with lathies had inflicted near about 15 blows on the body of the person of the deceased. He fell down, he received injuries, his one leg was

fractured.

P. W.4, P. W.5 and P. W.6 did not support their earlier version, which was deposed by them in examination-in-chief in their cross-examinations.Â

The cross-examination of aforesaid witnesses was conducted after two years of examination in chief. However, evidence of P. W.3 is consistent.Â

FIR Ex.P.5 was lodged immediately after the incident. Incident had happened at around 11.300 O'clock in the morning while FIR was lodged at

around 12.15 O'clock in the noon. In FIR names of all accused persons have been mentioned and their act has also been mentioned.

Trial Court relied on eye-witnesses and the fact that from the possession of accused persons lathies were seized. Trial Court further observed

that three eye-witnesses were won over by accused-appellants because their cross-examination was conducted after a period of two years.

Sudhir Shrivastava P. W.15, Investigation Officer deposed that report Ex.P.5 was lodged by Mohd Akram. I recorded the report and signed the

same. Thereafter, I reached on the spot and prepared spot map. I also seized plain earth, red earth and three cartridges from the spot. On the

next day 24.6.2005, I recorded statements of witnesses and also seized lathies from the possession of accused persons. In his cross-examination, he

also deposed that he had noticed lacerated would on the body of the person of the deceased and same facts have been mentioned by him in dead body

Panchnama Ex.P.3.

Doctor P. K. Jain P. W. 10, performed autopsy of the deceased deposed that I noticed two gun shot injuries on the body of the person of the

deceased. One was of entry oval in shape at left supra clavicle fasshe and another was of wound of entry ant. aspect of 4th coastal space 2 cm

lateral & 1 cm above of left nipple (oval in shape). The deceased was died due to aforesaid fire arm injuries.  One bullet was also recovered by

him from the body, which was found near right lung. In para 14 of his examination he admitted that except two gun shot injuries, I do not notice any

other injury on the body of the person of the deceased. There is no cross-examination of this prosecution witness.Â

Learned counsel for the appellant appeared on behalf of Krishnakant and Ramakant has submitted that there was previous enmity between

accused persons and complainant party. Mr. Krishnakant is a practicing advocate and as per FSL report two gun shots were fired by same gun.Â

Hence, evidence against appellant Krishnakant is not reliable. We are not with the agreement of the argument advanced by the learned counsel for

the appellants. The names of both the appellants have been mentioned in the FIR and their act has also been mentioned. It is also mentioned that

they were armed with deadly weapon i.e. guns and they had fired at the deceased. The Doctor who performed postmortem verified the fact that he

had noticed two gun shot injuries on the body of the person of the deceased. There are four eye-witnesses of the incident. P. W. 3 was

accompanying the deceased and he lodged the report immediately after the incident. Three witnesses in their crossexamination which was

conducted after two years of their examination-in-chief did not support their earlier version which was put-forth by them before the Court in their

examination-inchief.

The FSL report is Ex. P.30. In the aforesaid report the authority has submitted that three cartridges were fire from same weapon. He has

further opined that another fired was made from 7.65 mm bore gun. Hence, it could not be accepted that both gun shots were fired from same gun.

It is also a fact that fire arm has not been seized by the prosecution. The Apex Court in the matter of Yogesh Singh Vs. Mahabeer Singh and

others reported in (2017) 11 SCC 195 has held that mere non-recovery of weapon does not falsify prosecution case where there is ample

unimpeachable ocular evidence. The Apex Court held as under :

The next line of contention taken by the learned counsel for the respondents is that the recovery evidence was false and fabricated. We feel no

need to address this issue since it had already been validly discarded by the Trial court while convicting the respondents. In any case, it is an

established proposition of law that mere non-recovery of weapon does not falsify the prosecution case where there is ample unimpeachable ocular

evidence. [See Lakahan Sao Vs. State of Bihar and Anr., (2000) 9 SCC 82; State of Rajasthan Vs. Arjun Singh & Ors., (2011) 9 SCC 115 and Manjit

Singh and Anr. Vs. State of Punjab, (2013) 12 SCC 746].

On the basis of aforesaid discussion, in our opinion trial Court has rightly held guilty Krishnakant Tamrakar and Ramakant Tamrakar for

commission of offence punishable under Section 302 of IPC.

Next question is that whether other appellants are liable to be punished for commission of offence punishable with the aid of Section 149 and 148

of IPC.

Apex Court has held as under in the matter of Rattiram and others Vs. State of Madhya Pradesh and Satyanarayan and others Vs. State of

Madhya Pradesh, reported in (2013) 12 SCC 316, in regard to applicability of Section 149 and 148 of IPC : “13. Before we proceed to analyse the

evidence on this score, we think it appropriate to refer to certain pronouncements pertaining to attractability of Section 149 IPC. In Baladin and others

v. State of Uttar Pradesh[6], a three-Judge Bench has opined as follows: -

“It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he

had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142,

Indian Penal Code.â€​

The dictum in the aforesaid case was considered by afour-Judge Bench in Masalti v. The State of Uttar Pradesh[7], wherein the Bench

distinguished the observations made in the case of Baladin (supra) on the ground that the said decision must be read in the context of special facts of

that case and may not be treated as laying down an unqualified proposition of law. The fourJudge Bench, after explaining the said decision, proceeded

to lay down as follows: -

“It would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some

illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, S. 149 make it clear that if an

offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that

assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member

of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S. 149 is in a sense

vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.â€​

In Lalji v. State of U.P.[8] it has been observed that common object of the unlawful assembly can be gathered from the nature of the assembly,

arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and

circumstances of each case.

In Bhargavan and others v. State of kerala[9] it has been held that it cannot be laid down as general proposition of law that unless an overt act is

proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing

required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of

Section 141 IPC. The Bench emphasised on the word “object†and proceeded to state that it means the purpose or design and, in order to make it

“commonâ€​, it must be shared by all.

In Debashis Daw and others v. State of West Bengal[10], this Court, after referring to the decision in Akbar Sheikh v. State of W.B.[11],

observed that the prosecution in a case of such nature is required to establish whether the accused persons were present and whether they shared a

common object.

In Ramachandran and others v. State of Kerala[12], this Court has opined thus: -

“27. Thus, this Court has been very cautious in a catena of judgments that where general allegations are made against a large number of persons

the court would categorically scrutinise the evidence and hesitate to convict the large number of persons if the evidence available on record is vague.

It is obligatory on the part of the court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under

the second part of Section 149 IPC, if the offence was such as the members knew was likely to be committed. Further inference has to be drawn as

to what was the number of persons; how many of them were merely passive witnesses; what were their arms and weapons. The number and nature

of injuries is also relevant to be considered. “Common objectâ€​ may also be developed at the time of incident.â€​

In the present case, as per evidence of Doctor P.W.10, who performed autopsy of the deceased there was only two gun shot injuries on the body

of the person of the deceased. In para 14 of his deposition he specifically deposed that he did not notice any other injury except two gun shot

injuries. Prosecution did not cross-examine aforesaid witness to the effect whether there was any other injury on the body of the person of the

deceased. Investigation Officer did mention in his deposition that he noticed certain lacerated wounds. In view of evidence of Doctor, which is an

expert evidence, the evidence of Investigation Officer is not reliable. The Apex Court after considering earlier judgments has held as under in the

matter of Yogesh Singh (Supra), in regard to ocular evidence and medical evidence :

The learned counsel appearing for the respondents has then tried to create a dent in the prosecution story by pointing out inconsistencies between

the ocular evidence and the medical evidence. However, we are not persuaded with this submission since both the Courts below have categorically

ruled that the medical evidence was consistent with the ocular evidence and we can safely say that to that extent, it corroborated the direct evidence

proffered by the eye-witnesses. We hold that there is no material discrepancy in the medical and ocular evidence and there is no reason to interfere

with the judgments of the Courts below on this ground. In any event, it has been consistently held by this Court that the evidentiary value of medical

evidence is only corroborative and not conclusive and, hence, in case of a conflict between oral evidence and medical evidence, the former is to be

preferred unless the medical evidence completely rules out the oral evidence. [See Solanki Chimanbhai Ukabhai Vs. State of Gujarat, (1983) 2 SCC

174; Mani Ram Vs. State of Rajasthan, 1993 Supp (3) SCC 18; State of U.P. Vs. Krishna Gopal & Anr., State of Haryana Vs. Bhagirath, (1999) 5

SCC 96; Dhirajbhai Gorakhbhai Nayak Vs. State of Gujarat, (2003) 5 SCC 223; Thaman Kumar Vs. State of U.T. of Chandigarh, (2003) 6 SCC 380;

Krishnan Vs. State, (2003) 7 SCC 56; Khambam Raja Reddy & Anr. Vs. Public Prosecutor, High Court of A.P., (2006) 11 SCC 239; State of U.P.

Vs. Dinesh, (2009) 11 SCC 566; State of U.P. Vs. Hari Chand, (2009) 13 SCC 542; Abdul Sayeed Vs. State of M.P., (2010) 10 SCC 259 and Bhajan

Singh @ Harbhajan Singh & Ors. Vs. State, 2011) 7 SCC 421].

The law on this point is that if the medical evidence completely rules out the oral evidence then ocular evidence has to be discarded.

In the present case Doctor who performed postmortem specifically deposed that he did not notice any other injury except two gun shot injuries on

the body of the person of the deceased. Hence, medical evidence rules out the ocular evidence i. e. evidence of eye witnesses, who deposed that

they had seen that some of the appellants were armed with lathies and had beaten the deceased. They had inflicted number of blows by lathies on

the body of the person of the deceased. They are roping the appellants. The Apex Court in the matter of  Yogesh Singh (Supra) held as

under :

However, the rule regarding the benefit of doubt does not warrant acquittal of the accused by resorting to surmises, conjectures or fanciful

considerations, as has been held by this Court in the case of State of Punjab Vs. Jagir Singh, (1974) 3 SCC 277:

“A criminal trial is not like a fairy tale wherein one is free to give flight to one’s imagination and fantasy. It concerns itself with the question as

to whether the accused arraigned at the trial is guilty of the offence with which he is charged. Crime is an event in real life and is the product of

interplay of different human emotions. In arriving at the conclusion about the guilt of the accused charged with the commission of a crime, the court

has to judge, the evidence by the yardstick of probabilities, its intrinsic worth and the animus of witnesses. Every case in the final analysis would have

to depend upon its own facts. Although the benefit of every reasonable doubt should be given to the accused, the courts should not at the same time

reject evidence which is ex facie trustworthy, on grounds which are fanciful or in the nature of conjectures.â€​

On the basis of aforesaid discussion, the version of the witnesses that appellants had beaten the deceased by lathies is not reliable. Hence, the

Court could not presume that witnesses exaggerated and accused persons were present on the spot. Trial court has drawn presumption in regard to

presence of the appellants, who were armed with lathies. In our opinion, suspicion and presumption however may strong but cannot take place

prove beyond reasonable doubt.

In view of aforesaid discussion, trial Court has committed an error in holding guilty the appellant Gudda of Cr. A. No.1955/2009Â and appellant

Umesh of Cr. A. No.1512/2010 for a member of unlawful assembly. Consequently, aforesaid both the appeals are allowed and conviction and

sentence of the appellants awarded by the trial Court is hereby set aside while Cr. A. No.1823/2009 filed by the appellant Krishnakant Tamrakar and

Ramakant Tamrakar is hereby partly allowed. Their conviction and sentence for commission of offence punishable under Section 148 and 149 is

hereby set aside because other accused persons have been acquitted by this court. 22. Criminal appeal No.1955/2009 filed by appellant Gudda and

Criminal appeal No.1512/2010 filed by appellant Umesh are hereby allowed. Appellants are acquitted from the charge. They are on bail. Their

bail bonds are discharged while Cr. A. No.1823/2009 filed by the appellants Krishnakant Tamrakar and Ramakant Tamrakar is hereby partly

allowed. Their conviction and sentence awarded by the trial Court for commission of offence punishable under Section 302 of IPC is hereby upheld

which conviction and sentence under Section 149 and 148 of IPC is hereby set a side.