Lal Gulal vs State of Madhya Pradesh

N.K.Gupta, J.—The appellants have preferred the present appeal being aggrieved with the judgment dated 31.3.1994 passed by the learned 2nd Additional Sessions Judge, Rewa in ST No.15/1992 whereby each of them has been convicted of the offence punishable under Section 302/ 149 of IPC and sentenced to life imprisonment.

During the pendency of the present appeal, it was stated that appellant No.2 Chandra Sheikhar and appellant No.5 Ram Sajeevan have expired, and therefore vide order dated 16.11.2009 the appeal filed by them was declared abated.

The prosecution''s case, in short, is that on 15.9.1991 at about 8:00 AM some of the accused persons abused the deceased Jangilal Singh, Rajnarayan Singh and Balwant Singh in front of house of one Shivdas situated at Village Kotra (Police Station Sohagi District Rewa). The witness Shivdas intervened in the matter, and therefore both the parties dispersed. At about 1:00 PM the deceased Jangilal Singh, Rajnarayan Singh and Balwant Singh along with witness Shyamdhar left the field of Rajnarayan Singh for their houses. But they were followed by Yashwant, Balvir Singh, Rajnarayan, Sakhiya and Mudhini. On the way the accused persons met. They were armed with tangi (small axe), farsa, ballam (spear), lathis (sticks) and bomb. The appellant Ramrasayan threw a bomb towards the complainant party and thereafter they started assaulting the deceased Jangilal Singh, Rajnarayan Singh and Balwant Singh. Due to such blows, all the three deceased persons fell on the ground. The witnesses tried to save the deceased persons but the accused persons did not allow them to intervene by using force. Ultimately all the three deceased persons namely Jangilal Singh, Rajnarayan Singh and Balwant Singh succumed to the injuries on the spot. Chhotelal who was going to his Goda saw the dead bodies of the deceased persons and asked his mother Sakhiya and sister-in-law Raniya about the incident, and thereafter he immediately rushed towards the Outpost Teothar of Police Station Sohagi and lodged the FIR Ex.P6. The police took the dead bodies of the deceased persons and sent them for their postmortem. Dr. Anand Mahendra (PW3) had performed the postmortem on the bodies of the deceased Jangilal Singh, Rajnarayan Singh and Balwant Singh at the Primary Health Centre, Teothar and gave his reports Ex.P3, P4 and P5 respectively. He found that all the three deceased persons died due to injuries caused to them and their death was homicidal in nature. The Investigation Officer recovered the various arms like farsa, lathis, ballam, tangi from the various accused persons and sent these weapons to the Forensic Science Laboratory along with the various articles seized from the spot and received from the concerned doctor after the postmortem. In the report Ex.P/49 of the FSL, blood stains were found on various weapons seized from the accused persons and clothes of the appellant Lal Gulal. Also in the remains of explosive, it was found that hand grenade was prepared with chlorate, sulphide and potassium. After due investigation, the charge sheet was filed before the Judicial Magistrate First Class, Teothar, who committed the case to the Court of Sessions, Rewa and ultimately it was transferred to the 2nd Additional Sessions Judge, Rewa.

The appellants accused abjured their guilt. Almost the accused took the plea that they were not present at the spot whereas some defence evidence was adduced to show that the deceased persons were the aggressors and the appellant Lal Gulal and Shribhagwan had sustained some injuries in the quarrel. In defence Dr. Ramesh Kumar Mishra (DW1), Ramkripal (DW2), Kamal Bhan (DW3), Shankar Singh (DW4), Dr. S.A.Khan (DW5) and Constable Rajiv Pandey (DW6) were examined.

The learned Additional Sessions Judge after considering the evidence adduced by the parties acquitted the accused Kamal Deo, Indra @ Gyan Pratap, Ramsevak, Kallu Singh, Raghvendra Singh, Keshavlal Singh, Lalla Singh and Ramraj Patel, but convicted the present appellants for the offence under Section 302/ 149 of IPC and sentenced as mentioned above.

We have heard the learned counsel for the parties at length.

In the present case Dr. Anand Mahendra (PW3) had performed the postmortem on the dead bodies of Jangilal Singh, Rajnarayan Singh and Balwant Singh and gave his reports Ex.P3, P4 and P5. He found the following injuries to the deceased Balwant Singh:

(i) Bruise over left side of ace 1" lateral to ela of nose (5 cm x 2 cm) reddish blue.

(ii) Bruise all around Lt. Eye, bluish, swollen, diffuse.

(iii) Bruises 6 in nos. over back of chest, in haphazard manner with two parallel lines, reddish blue.

(iv) Bruise over back of Lt. Thigh, obliquely placed. 15 cm long with two parallel lines.

(v) Bruise over lateral aspect of Rt. R.A obliquely placed. 8 cm x 2 cm with two parallel lines.

(vi) L/W over occipital region 15 cm x 1.5 cm at mid. underlying bone is fractured in multiple pieces. brain matter is coming out of fractured side.

On opening the body he found that there was internal hemorrhage in the head. Occipital bone was fractured and found in pieces. Some internal portion of brain was also damaged and the deceased died due to head injury. His death was homicidal in nature.

Dr. Anand Mahendra (PW3) found the following injuries to the deceased Jangilal Singh:

(i) L/W 5 cm long over lateral end of right eye brow, obliquely I/W over frontal head underlying bone also cut vertically over occipital area vertical 16 cm x 3 cm at mid, underlying bone is fractured in multiple pieces, brain matter is coming out of fractured side.

(ii) L/W over back of Rt. Ear 5 cm. Long.

(iii) L/W over base of skull posteriorly. underlying bone is fractured in multiple pieces.

(iv) Bruise over Rt. Temporal and parietal region 10 cm x 4 cm. Underlying bone is fractured and depressed.

(v) Shape of skull is deformed due to compression on Rt. Side.

(vi) Multiple long bruises over back of chest Rt. Side. underlying fractured.

(vii) 6 bruises over right gluteal region in all direction.

(viii) Bruise over Rt. deltoid region 8 cm. Long.

On opening the body, he found that the occipital right parietal bones were broken. Also some of the right ribs were broken, and therefore right lung was ruptured. There was hemorrhage in the brain and brain matter was also destructed. The deceased died due to head injury and injury caused to his lung. His death was also homicidal in nature.

Dr. Anand Mahendra also found the following injuries to the deceased Rajnarayan Singh:

(i) Long bruises over back of chest and back of ab. 8 in no. with parallel lines.

(ii) One incised wound 1 cm above right eye brow .5 cm long horizontally placed.

(iii) L/W on top of head, Left side anteriorly Rt. Side posteriorly 15 cm long.

(vi) Bruising around Rt. Eye with swelling bluish.

(v) L/W over Rt. Parietal bone 5 cm. Long antero posterior, clotted blood present.

(vi) Both cornea hazy, Haematoma over right conjunctive of eye. Clotted blood present over face, neck, head.

On opening the body, he found the internal hemorrhage in the head. The deceased died due to head injury and his death homicidal in nature.

The prosecution has examined as many as 56 witnesses namely Smt. Raniya (PW6), Yashwant Singh (PW11), Ramniwas (PW12), Ramkrishna (PW13), Shivdas (PW14) and Shyamdhar (PW15). Out of them witness Ramkrishna could only identify the appellant Lal Gulal. He told about the incident that Lal Gulal and his companions had assaulted the deceased persons, however he did not know the companions of the appellant Lal Gulal. Shivdas (PW14) has stated about the incident, which took place in the morning in front of his house and in the second incident where three persons were killed, he reached the spot soon after the incident. Shyamdhar had also sustained some injuries in the incident. The learned counsel for the appellants has argued in detail about the contradictions between the statements of these witnesses and with their case diary statements.

The learned counsel for the appellant has pointed out the discrepancies in the evidence given by Smt. Raniya (PW6) that she did not mention as to who exploded the bomb. However, in para 1 of her statement, it is clearly mentioned that the appellant Ramrasayan had a bomb. The other witnesses have stated that the appellant Ramrasayan had exploded the bomb. It is obvious that if Smt. Raniya (PW6) did not say as to who exploded the bomb, then it makes no difference. Also it is pointed out that witness Yaswant Singh (PW11) has stated that Lal Gulal and Chandrashekhar had assaulted the deceased Jangilal by a tangi at some places. He told that a particular accused assaulted the victims by a gadasa whereas no gadasa was seized. It is also exaggerated by this witness that more than 100 blows of sticks were given to the deceased persons. When such type of incident took place, then it is impossible for any witness to count the number of blows. The meaning of statement of Yashwant Singh is that multiple blows were given. Similarly, he has expressed that according to his opinion, there is no difference between gadasa and farsa, and therefore if he said gadasa in place of farsa, then it makes no difference.

Similarly, it was pointed out that Ramniwas has stated that the appellant Lal Gulal was in the habit of abusing other persons, though such version was not given in his case diary statement Ex.D4. However, the statements under Section 161 of Cr.P.C. are recorded only related to the incident, and therefore if such omission is visible, then it makes no difference. It is also submitted that witness Shyamdhar (PW15) has stated that due to explosion of bomb, Jangilal fell down on the ground whereas no injury of explosion of a bomb was found to the deceased Jangilal, and therefore the testimony of witness Shyamdhar cannot be believed. He has also accepted in his case diary statement that he was with Rajnarayan at the field, and therefore he could not be an eyewitness in the case. However, it is established that a bomb was exploded, and therefore it is not necessary that Jangilal would have fell on the ground due to injuries caused by explosion. If the witness Shyamdhar saw him felling at the time when the bomb exploded, then it is not necessary that the injuries must have been caused to the victim Jangilal by explosion of bomb. Similarly, since Rajnarayan was also a victim in the incident, and therefore presence of Shyamdhar cannot be denied on his previous statement that he was with the Rajnarayan at the field. If he came along with Rajnarayan, who is also one of the deceased, then certainly at the time of beginning of the incident, he was at the spot, and therefore his testimony cannot be brushed aside. Similarly, this witness could not see the injuries of appellants Lal Gulal and Shribhagwan, because he ran away from the spot when three persons were killed.

However, no material contradictions could be brought in the notice of this Court so that the testimony of these witnesses may be discarded. The witnesses are illiterate and rustic persons, and therefore such discrepancies may arise in their evidence. The learned Additional Sessions Judge has already filtered the evidence given by the eyewitnesses and acquitted those accused persons whose role was not found in the crime. In the incident three persons have been killed and they sustained 15 injuries in all, hence it cannot be held that any of the appellant did not participate in the alleged crime. Their names were mentioned in the FIR and the eyewitnesses have specifically told against each of them.

The learned counsel for the appellants has submitted that according to witness Yashwant (PW11), the deceased persons were going to their houses for lunch. However, Dr. Anand Mahendra (PW3) had found some undigested food in the stomach of the deceased persons, and hence there was no need for the deceased persons to go their houses to take lunch and the witness Yashwant was telling a lie. However, no quantity of undigested food was mentioned by Dr. Anand Mahendra (PW3) and if the deceased persons would have taken their snacks at the field soon before the incident, then also such undigested food could be found in their abdomen. Hence, it cannot be said that they were not going towards their houses at the time of incident.

The learned counsel for the appellant has submitted that some of the witnesses have stated in their case diary statements that there was enmity between the deceased persons and the appellant Lal Gulal, but before the trial Court they did not say anything about the enmity. However, it makes no difference, because enmity is a double edged weapon, that means due to enmity the appellants could assault the victims or due to that enmity the appellants could be falsely implicated by the victims, if the victims could not know about the actual culprits. Under these circumstances, the evidence of entire case should be examined minutely.

The witnesses are villagers, and therefore it is possible that minor contradictions may arise in their evidence. In this context, the judgment of Hon''ble the Apex Court in the case of Ugar Ahir and Others Vs. The State of Bihar, may be cited in which it is held that the maxim of falsus in uno, falsus in omnibus (false in one thing, false in every thing) is not applicable in India, and therefore it is the duty of the Court to pickup the grains of truth from the chasm of falsehood. Hence, by minor contradictions, the testimony of the eyewitnesses cannot be thrown away. In an incident where three persons are killed due to injuries, then it is not possible to make an account by the witnesses as to who assaulted the particular deceased first and who assaulted thereafter. However, the testimony of the witnesses is uniform about the weapon of offence held by the various appellants. All the witnesses have stated that in the beginning the appellant Ramrasayan threw a bomb and thereafter he also participated in the crime with a lathi.

The learned counsel for the appellants has also submitted that the names of various accused persons were mentioned in the FIR though the learned trial Court acquitted them, and therefore it is not necessary that if the name of the present appellants was mentioned in the FIR, then each of them had participated in the crime. Similarly, the learned counsel for the appellant has submitted that the name of Ramrasayan was not mentioned in the FIR, hence it can be said that his name was falsely added in the array of accused persons. In this context, if the evidence of complainant Chhotelal (PW10) is examined, then it would be apparent that he was not an eyewitness. He went to the spot soon after the incident and he asked about the incident to Smt. Raniya and Sakhiya, and thereafter he immediately left the spot, because he was also the family member of the deceased persons and there was possibility that the assailants could come back and they would have assaulted the complainant Chhotelal also. Therefore, after getting the brief of the incident from Smt. Raniya etc., he rushed towards the outpost Teothar and lodged the FIR Ex.P6. If the text of the FIR Ex.P6 is perused, then the evidence given by the complainant Chhotelal appears to be correct. He lodged the FIR in the same manner that he went to the spot and asked the eyewitnesses that who killed the deceased persons and answer given by the witnesses was mentioned in the FIR as it is. It was mentioned that a bomb was exploded in the incident, but it was not mentioned as to who exploded the bomb. Under these circumstances, where all the witnesses gave uniform version in their statements that the appellant Ramrasayan had exploded the bomb, then though the name of Ramrasayan is not mentioned in the FIR, his presence is duly proved by the eyewitnesses and it is proved beyond doubt that he participated in the crime.

The learned counsel for the appellant has placed his reliance on the judgment of Hon''ble the Apex Court in the case of Dhanna, etc. Vs. State of Madhya Pradesh, in which it is held that if the name of the accused is not mentioned in the case diary statements of the eyewitnesses and no reason has been shown as to why the name of the accused was not mentioned in the case diary statement, then no action can be taken against that accused, who was not named at the previous stage. In the present case, name of the accused Ramrasayan is not mentioned in the FIR because the complainant Chhotelal was not eyewitness. The name of accused Ramrasayan is mentioned in the case diary statements of various witnesses, and therefore the aforesaid decision of Hon''ble the Apex Court in the case of Dhanna (supra) is not applicable in the present case.

The learned counsel for the appellant has also submitted that it is alleged against the appellant Lalla Singh that he had a ballam in his hand, but no penetrating injury was found to any of the deceased. If a particular weapon is alleged by witnesses in the hand of a particular person, then unless a contrary fact is shown, it shall be presumed that particular weapon was used by its pointed portion, and therefore the testimony of the witnesses cannot be accepted, because no penetrated wound was found to any of the deceased. However, the submission of the learned counsel for the appellant cannot be accepted as it is. Ballam is a pointed object at the tip but it also has sharp edges below and is fastened with a stick. A ballam was recovered from the appellant Lallan vide seizure memo Ex.P16. Sarfaraz Khan (PW5) and Rajnish Kumar (PW8) witnesses of seizure memo Ex.P26 have turned hostile. However, Sub Inspector R.D.Tripathi (PW17) has proved the seizure memo Ex.P26. There is no reason to disbelieve the Investigation Officer relating to the fact of the seizure. If the description of ballam given in the document Ex.P26 is perused, then it was a ballam having pointed end of metal. Metallic portion was one bita two angul (ten inches) long with pointed end and sharp edges. Under these circumstances, it was not necessary that by assaulting with that ballam only penetrating wound could be caused. If someone assaulted by its sharp edges, then certainly the wounds which caused to the deceased persons could be caused by ballam also, and therefore the crime committed by the appellant Lallan cannot be isolated in comparison to other accused persons. It is also pertinent to note here that the blood was found on the wooden portion of the ballam in the FSL report Ex.P49. Hence, it cannot be said that the appellant Lallan did not participate in the crime.

The learned counsel for the appellants has submitted that with the help of various defence witnesses, the appellants have proved the injuries of Lal Gulal and Shribhagwan that they sustained some injuries in the incident, and therefore the deceased persons Jangilal Singh, Rajnarayan Singh, Balwant Singh etc. were the aggressors, and therefore it is a case of right of private defence where the appellants exceeded their rights. The suggestion was given to the various witnesses that when the appellants Lal Gulal and Shribhagwan were coming from Parasiya, at that time all three deceased persons were sitting on a culvert along with Shyamdhar and they were waiting for the appellants Lal Gulal etc., and therefore the deceased persons were the aggressors.

It is true that Dr. Ramesh Kumar (DW1) has proved four simple injuries on the appellant Lal Gulal on 15.9.1991 and he gave his report in this regard. Similarly, he had examined Shribhagwan on the same very day and found six injuries on him which were simple in nature. It is also proved by the Sub Inspector R.D.Tripathi (PW17) that the appellant Lal Gulal had lodged the FIR Ex.D8 at Police Chowki Teothar at about 2:15 PM in which the time of incident was shown to be 1:45 PM. It is proved that the appellants Lal Gulal and Shribhagwan had sustained some injuries, but it is not proved that the incident took place near the house or field of the appellant Lal Gulal or Shribhagwan. According to the FIR Ex.D8, the incident took place at Parasiya road. If the deceased persons were aggressors, then after they died, their weapons should have been found on the spot and if they surrounded the victim Lal Gulal and Shribhagwan to assault them, then it was not possible for other appellants to reach the spot during the incident at that time without any intimation and to save the appellants Lal Gulal and Shribhagwan and to kill three persons. If the deceased would have arranged for assault to Lal Gulal and Shribhagwan, then Lal Gulal and Shribhagwan could not be saved by anyone. On the contrary, it is established that Lal Gulal and Shribhagwan were accompanied with so many persons and they killed three deceased persons at the spot. Under these circumstances, it would be apparent that the appellants were the aggressors.

That, possibility cannot be ruled out that when the appellants had started assaulting the victims, then they would have tried to snatch the weapons of the appellants to save themselves, and therefore such injuries could be caused to the appellants Lal Gulal and Shribhagwan when the deceased persons were defending themselves. However, when more than 11 persons had involved in killing three persons, then it can be presumed that the incident was preplanned and the appellants had gathered to kill three persons otherwise if the deceased persons were aggressors, then after causing some injuries, either they must have fled away from the spot or after their falling on the ground, they would be spared by the appellants. Under these circumstances, by observing the factual position of the case, it is not established that the deceased persons were aggressors or any right of private defence was accrued to any of the appellant.

That, a suggestion was given to the various eye witnesses that Kamlakar son of Samaylal is a dacoit. Though, such suggestion was not accepted by any of the witnesses, there is no intervention of Kamlakar was established by the prosecution or defence that he was present at the spot at the time of incident along with the deceased persons. In the FIR Ex.D8 and D9 the appellant Lal Gulal did not mention that Kamlakar had any relation with the incident took place with the accused persons, and therefore such suggestion was not at all relevant in the present case.

The learned counsel for the appellants has placed his reliance upon the judgment of Hon''ble the Apex Court in the case of Harjinder Singh Vs. Karnail Singh and others, in which it is held that if the accused exceeded the right of private defence, then his offence committed shall fall within the purview of Section 304 (PartI) of IPC. However, the decision given by the Court always depends upon the factual position of that particular case, and therefore if the factual position of the present case is compared with the decision of Hon''ble the Apex Court in the case of Harjinder (supra), then it would be apparent that the factual position of the present case is entirely different. As discussed above, it appears that the incident took place between the parties at about 8:00 AM in the morning and thereafter compromise took place between them. However, the appellants thereafter planned to wait and kill the deceased persons, who were expected to come from their fields and thereafter they were restrained on the way and ultimately all the three deceased persons were killed. Under these circumstances, it is not established by the appellants that the deceased persons were the aggressors and they initiated with the crime or appellant Lal Gulal or Shribhagwan along with other appellants killed the deceased persons in their right of private defence.

In the FIR Ex.D8 and D9, it was alleged against the witness Chhotelal (PW10) that he participated in the crime, whereas Chhotelal has stated that he reached to the spot after the incident and thereafter he went to the police station to lodged the FIR. If Chhotelal was involved in the crime, then he would have claimed himself to be an eyewitness, but Chhotelal did not claim as an eye witness and there is no reason for him not to claim himself as an eyewitness, if he was present at the spot. Looking to the FIR Ex.P6 lodged by the complainant Chhotelal, it is clear that he did not mention anything in the FIR from his side, and therefore he was not present at the spot at the time of incident. Such a fact makes us to disbelieve the FIR Ex.D-8 and D-9.

The incident took place at 1:00 PM and after getting three dead bodies, it was not possible for Smt. Raniya or Sakhiya to send someone to lodge the FIR soon after the incident and when the witness Chhotelal came to the spot, then he rushed to the outpost Teothar and lodged the FIR at about 2:35 PM whereas the distance from the spot to the outpost Teothar was hardly 2 kms, and therefore the time spend in lodging the FIR by Chhotelal is explained from the side of the prosecution. But the appellants did not explain as to why the incident which took place at about 1:45 PM and the FIR was lodged at 2:15 PM whereas Lal Gulal had sustained 34 simple injuries and by motorcycle he could reach to Police Station within 15 minutes of the incident. Under these circumstances, on the basis of factual position of the case, it appears that after commission of the crime, the appellant Lal Gulal had tried to get the advantage of his simple injuries and lodged the counter FIR.

Also in the FIR Ex.P6 it was mentioned that the incident took place at 1:00 PM whereas according to the counter FIR Ex.D8 and D9, the incident took place at about 1:45 PM. If the appellants had caused the death of the deceased persons at 1:00 PM, then there was no possibility that after their death, at about 1:45 PM they would have assaulted the appellant Lal Gulal or Shribhagwan. Under these circumstances, the FIR Ex.D8 and D 9 are not believable documents and the same were simply lodged only to make the counter case. Hence, at about 1:00 PM when the incident took place, the appellants were the aggressors and nothing had been done by the deceased persons at about 1:00 PM. Therefore, it is not proved by the defence that the deceased persons were the aggressors and the appellants had committed the entire crime under the right of private defence or they exceeded the right of private defence. Under these circumstances, by considering the factual position of the present case, the ratio laid down by the Hon''ble the Apex Court in the case of Harjinder (supra) cannot be applied in the present case.

On the basis of the aforesaid discussion, it is clear that all the appellants had participated in the crime in killing three persons, and therefore they caused murder of three persons. Under these circumstances, they had constituted an unlawful assembly and in furtherance of their common object, each of them had participated in intentional of killing three persons. The trial Court has rightly convicted all the appellants for the offence under Section 302/ 149 of IPC.

So far as the sentence is concerned, the trial Court did not pass any death sentence but a minimum sentence has been imposed, and therefore there is no reason to make any interference in the order of sentence passed by the trial Court.

On the basis of the aforesaid discussion, there is no reason to interfere either in the order of conviction or on the sentence as directed by the trial Court. Consequently, the present appeal filed by the appellants cannot be accepted on merits as well as on the count of sentence, and therefore it is hereby dismissed.