Mahendra @ Mota and Others vs State of M.P.

Vimla Jain, J.—Appellants preferred this appeal u/s 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 10.8.2007 passed by Special Judge, (Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989, Harda, in Sessions Trial No. 61/2007, whereby each of the appellants has been convicted and sentenced as under with the direction to run both the jail sentences concurrently:-

The charges against the appellants for offences under sections 148, 302, 302/149, 294, 506 of the I.P.C. and 3(2)(5) of the S.C. and S.T. (Prevention of Atrocities) Act that on 8.9.2005 the appellants armed with deadly weapons like axe and butts of GENTI etc. and with an intention to commit murder of deceased Shivnarayan, formed an unlawful assembly and entered into the field of Santosh situated at village Bajniya and in furtherance thereto abused him by referring to his caste and assaulted deceased Shivnarayan and committed his murder.

The prosecution story in brief is that on 8.9.2005 at about 6:00 pm deceased Shivnarayan was cutting grass in his field along with his son Santosh (PW1). At that time two persons came and asked Shivnarayan as to where he lives. Shivnarayan replied that he lives in village Bajniya, then the said two persons inflicted blows of butts of GENTI on his legs, Shivnarayan tried to run, but the said persons continued inflicting him and as a result of such blows Shivnarayan fell down. Then accused Mahendra @ Mota armed with axe, his brother Kalm @ Lokendra armed with butt of GENTI, two other persons armed with butts of GENTI, all six with common object and with intention to kill the deceased, assaulted him. Accused Mahendra inflicted butt of axe blow on the head of deceased and others also inflicted butts of GENTI blows on the deceased due to which he sustained injuries on both of his legs and hands. Santosh, son of deceased, tried to rescue his father. Accused Mahendra threatened to assault him with axe but he ran away from there and shouted. Then accused persons anticipating the deceased to be dead, fled away. On hearing the shout of Santosh, Premnarayan (PW4) and Safi Chacha, working in nearby fields, reached the spot Then Santosh carried his father Shivnarayan on a bullock-cart to Police Station Timarni and lodged the FIR, Ex.P./3. The men Station House Officer Shri G.L. Ahirwar(PW2) registered the report, Ex.P/1.

Thereafter, injured Shivnarayan was sent to Community Health Center, Timarni, for medical examination along with Constable No. 32. Dr. Govind Kushwaha, (PW13) medically examined the injured and prepared MLC, Ex.P/39. Nayab Tahsildar, Jeewanlal Thakur (PW7) recorded the dying declaration of deceased vide Ex.P/29 and referred the injured to District Hospital, Harda, for further treatment where during treatment injured Shivnarayan succumbed to his injuries. The intimation of death was given by Dr. V.K. Khandelwal (PW16) to Police Station, Harda, vide Ex.P/30 on the basis of which Head Constable Dalpat Singh (PW.8) registered Marg vide Ex.P/31 and as the crime was of Police Station Timarni, Mahesh Jat (PW9) registered the Marg at Police Station Harda vide Ex.P/32.

During investigation the then Dy. S.P. (AJAK) Suresh Thakur (PW17) prepared the spot map, Ex.P/2, and seized ''chappal'' from the spot vide seizure memo, Ex.P/13. Rakesh Tiwari (PW14) issued the Safina form, Ex.P/3 and issued notices to the witnesses. Thereafter, he prepared Panchnama (Ex.P/4) of the body of Shivnarayan and sent the dead body for postmortem vide Ex.P/34. At Govt. Hospital, Harda, Dr. R.B. Patel, (PW12) examined the dead body of the deceased on 9.9.2005 and submitted postmortem report vide Ex.P/35. Suresh Thakur, PW17, the then Police Sub Inspector (AJAK) P.S. Harda, has arrested accused Mahendra, Lokendra, Vijay Chouhan, Shyam Yadav, Mangal and Jitendra vide Ex.P/14 to P/19 and accused Narendra and Krishna Kumar vide Ex.P/40 and 41. On the basis of memorandum of Mahendra, Vijay Chouhan, Shyam and Mangal, Ex.P/20 to P/23, axe was seized vide seizure memo, Ex.P/24, butts of GENTI were seized vide seizure memo, Ex.P/25 and P/26 and a LATHI was seized vide seizure memo, Ex.P/27 and vide memorandum of Krishna, Ex.P/42, butt of GENTI was recovered vide seizure memo, Ex.P/43. Thereafter, seized ''chappal'' was identified by Shivshankar, (PW 18). Bloodstained clothes of deceased Shivnarayan were brought by Constable Vishal from Hospital vide Ex.P/33. Seized axe and butts of GENTI were sent to Dr. R.B. Patel, vide Ex.P/36 who gave his query report, Ex.P/37. Test Identification Parade of the arrested accused was conducted by Smt. Farida Khan, Naib Tahsildar, PW 19, vide Ex.P/5 to P/8. During the investigation, Nazri Naksha (Ex.P/47) was prepared by Patwari Panchamlal (PW15). The seized articles were sent to Forensic Science Laboratory, Gwalior, vide Ex.P/44 for their analysis and a report was received from FSL Gwalior vide Ex.P/46.

After investigation, charge sheet was filed under Sections 148, 302, 302/149, 294, 506 of the IPC and 3(2)(v) of the S.C./S.T. (Prevention of Atrocities) Act against the appellants and other three accused persons before the Court of Chief Judicial Magistrate, Harda, who committed the case to the Court of the learned Special Judge (S.C./S.T. Act) Harda. On being charged with the offences under the aforesaid sections, the appellants/accused pleaded not guilty and complete innocence and claimed to be tried with the prayer that they had been falsely implicated in the case.

In order to bring home the charges against the appellants, the prosecution has examined twenty witnesses and proved the documents (Ex.P/1 to P/49) on record. The appellants did not examine any witness in support of their defence.

The learned Court below, after scanning the evidence on record did not find the charges proved against three accused persons namely Jitendra, Narendra and Mangal, but it found the charges proved against the appellants and convicted them and sentenced them, as stated at the outset.

This appeal has been filed by the appellants assailing the said judgment of conviction and order of sentence.

Learned counsel for the appellants has urged that the entire evidence on which the prosecution relied consists of evidence of interested persons, who are related with the deceased Shivnarayan, therefore, it is not reliable. He further submitted that the identification parades of appellant no. 2 Shyam and appellant no. 3 Krishna Kumar were conducted after 20 days of their arrest, therefore, TIP should not be accepted. Learned counsel for appellants further submitted regarding appellants no. 2 and 3 that even if it is assumed that an unlawful assembly had been formed by six accused persons, it cannot be said that common object of the said assembly was to cause murder of deceased Shivnarayan, inasmuch as even according to the prosecution story, appellants no. 2 and 3, who were armed with butts of GENTI, hit on the legs of deceased Shivnarayan and not on vital part of the deceased. In such circumstances, according to the learned counsel, the appellants no. 2 and 3 cannot be made liable for the offence of murder with the aid of section 149 of I.P.C.

On the other hand, learned Government Advocate for the State has supported the finding of the trial Court.

We have considered the arguments advanced by learned counsel for the parties and perused the record.

PW.13 Dr. Govind Singh Kushwaha, who examined Shivnarayan on 8.9.2005 at 8:45 pm, proved his MLC report (Ex.P/39), and found following injuries on his person:-

Swelling over left arm 8 x 6 cm size.

Swelling over left forearm 6 x 4 cm size near waist

Swelling over right arm 8 x 4 cm with laceration.

Swelling over left forearm 4 x 4 cm size

Swelling over chest backside right thoraco lumber area 10 x 4cm size.

Swelling over right leg below knee joint 4 x4 cm size.

Swelling over left leg 7 x 6 cm size near knee joint.

Swelling over left thigh 8 x 4 cm size laterally.

Lacerated wound over head frontal area.

General condition not fair, conscious, oriented and able to give oral statement B.P. 100/60 mmHg, Pulse 60 per minute. Opinion:- "Injuries were caused within 24 hours, may be caused by hard and blunt object. X-ray was advised".

PW. 12 Dr. R.B. Patel conducted the postmortem of deceased Shivnarayan vide Ex.P/35 and found following injuries on dead body:-

EXTERNAL INJURIES

Lacerated wound on mid parietal region 3" x 1/2" x bone deep.

Deformity right upper arm with diffuse swelling 6" x4" with fracture of bone.

Deformity of right forearm above wrist joint, 4" x 2" with possibility of fracture of radius and ulna bone.

Deformity left upper arm with diffuse swelling 6" x 4" with possibility of fracture in bone.

Diffuse swelling right knee joint and lower limb upper half

Contusion lateral aspect right thigh 4" x 2".

Swelling left knee joint.

On internal examination, the doctor found following injuries:-

1) Fracture of both parietal bones, membrane torn and brain matter damaged with local haemorrhage.

2) Internal organs of chest were healthy. Right chamber of heart was filled with blood, left was empty.

3) Stomach was filled with large amount of fluid. Semi digested meal was present in small intestine while digested meal was present in large intestine.

4) Liver, pleaha, were healthy.

5) Both humerous bones were broken, right radius and ulna bones were also broken.

In his opinion, cause of death of Shivnarayan is shock due to injury to the vital organs, i.e. brain and haemorrhage. All injuries were ante mortem in nature. Period between death and postmortem examination would be 24 hours.

There is no challenge from any side to the fact that death of deceased Shivnarayan was homicidal. Therefore, looking to the nature of injuries, death of deceased Shivnarayan appears to be homicidal.

In this case, sole eye witness is Santosh (PW1) who is son of the deceased. The law is well settled that merely because the witness is related, it is not a ground to discard his evidence. The Apex Court has held in many cases that the relatives are only available for giving evidence having regard to the trend in our present society where independent witnesses are rarely available. It is of course true that the evidence of related witness has to be carefully analysed and scrutinised. Santosh (PW.1), son of deceased has stated that on the date of incident he along with his father had gone to cut grass. When they were cutting grass, at around 4 PM, two persons came inside their fields and asked his father about his village. His father replied that he lives in village Bajniya. They started assaulting his father after his reply. He deposed that they assaulted his father with the butts of GENTI. His father ran 2-3 steps then Mahendra @ Mota armed with axe and his brother Lokendra @ Kallu and two others armed with butts of GENTI, also assaulted his father. He tried to rescue his father then Mahendra @ Mota ran behind him with axe. He further deposed that Mahendra caused injury with the blunt side of axe on the head of his father and others inflicted blows by butts of GENTI on hands and legs of his father. They had broken both the hands and had assaulted on his legs. While assaulting his father, the accused persons were abusing by referring to their caste. Then accused persons fled away from the spot. The accused persons had broken both the hands of his father and there were 9 injuries on the legs and back of his father.

He further stated that when accused persons fled away, Premnarayan and Safi Chacha of nearby fields reached the spot. His father was carried to Timarni on a bullock-cart. At police Station Timarni FIR was lodged by his father. His father put thumb impression on the FIR. Thereafter, his father was sent to CHC, Timarni. His father was referred to Harda Hospital. On the way he became unconscious and expired at Harda Hospital. Evidence of Santosh (PW1) finds substantial corroboration from the first information report (Ex.P/1) lodged soon after the occurrence and dying declaration. On careful scrutiny of his deposition, it was found trustworthy. The version given by the witness appears to be clear, cogent and credible, therefore, there is no reason to discard his statement. It does not appear as to why the witness would falsely rope in the appellants in such a heinous crime and spare the real culprits to go scot free.

Now we come to the next submission of the counsel for the appellants about reliability of identification parade. The learned senior counsel has placed reliance on the decisions in the case of Wakil Singh and Others Vs. State of Bihar, and Bali Ahir and Others Vs. State of Bihar, .

Santosh (PW1) has deposed that during the TIP, he identified accused Krishna, Mangal and Shyam. In his cross examination, he clearly replied that he had identified accused persons in jail. Before identification he did not see them anywhere after the incident. Suresh Thakur (PW17) Dy.S.P. (AJAK) in his cross examination, stated that accused persons were produced in the court in covered (BAPARDA) condition. This fact was also mentioned in case diary. Thus, there is no substance in the contention that the eyewitness had seen the accused/appellants no. 2 and 3 before they were put up for T.I. Parade. Smt. Farida Khan, Executive Magistrate (PW19) himself appeared as a witness and stated that she has taken all the precautions and complied with relevant legal formalities at the time of identification parade. Therefore, the TIP is fully reliable. Thus, we are satisfied that the evidence of identification parade is unimpeachable and we see no reason to discard the same. The facts and circumstances of both precedents (supra) are clearly distinguishable from those of the case in hand. Therefore, both these authorities do not help the appellants.

Naib Tahsildar recorded the dying declaration of deceased Shivnarayan at CHC Timarni vide Ex.P/29, which reads as under:-

We have examined the dying declaration contained in Ex.P/29. On its perusal, it is manifest that Dr. Govind Kushwaha (PW13) had given the certificate that the deceased was in a state of total consciousness during her dying declaration. His statement had been recorded by Jeewanlal Thakur (PW7) Naib Tahsildar. The thumb impression of the deceased had also been taken on his dying declaration. He (PW7) had maintained immense equanimity during dying declaration and stood embedded to his version before the trial court. PW13 Dr. Govind Kushwaha and PW7 Jeewanlal Thakur, Naib Tahsildar are public officers. Nothing has been shown that they had any axe to grind against the accused persons.

Thus, we are of the considered opinion that the dying declaration had been recorded correctly and there is nothing to persuade us to disbelieve or discard the same. The dying declaration is free from any kind of reproach and there is no trace of doubt. Therefore, the same can be accepted and on its foundation the conviction can be recorded.

Now coming to the contention relating to the motive. Shivdayal (PW3) stated that his sister Kshamabai and Prembai, mother of appellant no. 1 Mahendra, quarreled due to pipeline of water. Prembai abused Kshamabai by filthy language. At that time deceased Shivnarayan pacified the matter. The above statement of witness does not prove any motive. However, it is also true that in the absence of motive, case of prosecution cannot be thrown out in view of assertion of eyewitness coupled with medical evidence. We found support from judgment in the case of State of Rajasthan Vs. Anjum Singh and another, AIR 2011 SCW 5295.

As regards appellant no. 1 Mahendra, learned counsel submits that the trial court has committed an error of law in holding that the offence u/s 302/149 of the I.P.C. has been made out against him. According to him, the offence deserves to be converted u/s 304 Part I of the I.P.C. In support of his contention, learned counsel has placed reliance on two decisions of the Supreme Court in the cases of Jarnail Singh Vs. State of Punjab, and Palanisamy @ Sembattayan Vs. State of T.N., (2006) 10 SCC 297.

In Rajinder Vs. State of Haryana, , the Apex Court discussed about the culpable homicide and murder as well as distinction between the aforesaid two offences. In para-16 of the said judgment, the Apex Court held as under:-

The academic distinction between ''murder'' and ''culpable homicide not amounting to murder'' has always vexed the courts. The confusion is caused, if Courts losing sight of the true scope and meaning of the terms used by the Legislature in these sections, allow themselves to be drawn into minute abstractions. The safest way of approach to the interpretation and application of these provisions seems to be to keep in focus the keywords used in the various clauses of Sections 299 and 300. The following comparative table will be helpful in appreciating the points of distinction between the two offences:-

The question with regard to nature of offence has to be determined in the facts and circumstances of the case, the nature of the injury whether it is on vital or non-vital part of the body, the weapon used, the circumstances in which the injuries are caused and manner in which the injuries are inflicted. All these are relevant factors, which determine the intention, role or knowledge of the offenders and the nature of offence committed by them.

In this case, there was no quarrel between deceased and the appellants/accused. Two accused persons had inflicted injuries on the legs of the deceased and he ran 2-3 steps in helpless condition, then appellant Mahendra dealt blow with axe on the vital part of his head. This shows that appellant/accused Mahendra inflicted injury to deceased without any cause or provocation and with intention to murder him. On internal examination of deceased, Dr. R.B. Patel (PW 12) found that "fracture of both parietal bones, membrane torn and brain matter damaged with local haemorrhage". He opined that cause of death is shock due to injury to the vital organs, i.e. brain and haemorrhage. All injuries were ante mortem in nature and period between death and postmortem examination is within 24 hours. In view of the aforesaid reasons, the contention advanced on behalf of appellant no, 1 cannot be accepted. Therefore, we find that the learned trial Judge committed no error in holding him guilty u/s 302 of the Indian Penal Code. His conviction under sections 302 and 148 of the Indian Penal Code is, therefore, affirmed.

Next question is that whether the appellants/accused had formed an unlawful assembly within the meaning of Section 141 of the Indian Penal Code, which is defined as an offence u/s 149 of the Code. Section 149 of the Code reads thus:-

Every member of unlawful assembly guilty of offence committed in prosecution of common object.-- 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.

On perusal of the above-said section, it is clear that this section has two parts. Its former part makes a person guilty of such offence if he commits such offence as a member of the assembly in prosecution of the common object of that assembly. Its latter part makes a person guilty if he commits an offence which is not by itself the common object of the unlawful assembly but members of such assembly knew that the same is likely to be committed in prosecution of the common object of the assembly.

From the evidence of Santosh (PW1), son of deceased, as well as dying declaration of deceased Shivnarayan, it is found that when the deceased and his son were cutting grass in their field, two persons came inside their field and asked the deceased about his village. When deceased replied, they assaulted him with the butts of GENTI, still the deceased could run 2-3 steps. In the meantime, appellant Mahendra @ Mota assaulted him with axe and his brother Lokendra @ Kallu and two others also assaulted him with butts of GENTI. If this is the manner in which the accused persons had come to the spot and assaulted the deceased, it cannot be said that accused/appellants had not formed an unlawful assembly within the meaning of the expression appearing in Section 141 of the Indian Penal Code while membership of an unlawful assembly itself is an offence u/s 143, I.P.C. The use of force by members of the unlawful assembly gives rise to the offence of rioting which is punishable either u/s 147 or section 148 I.P.C. Membership of the six accused persons in the unlawful assembly and use of force with weapons is borne out by the evidence on record. The said facts would make the appellants liable for the offence u/s 148 of the Indian Penal Code. However, their liability under any other provision of the I.P.C. would depend on the role played by them and their object during the unlawful assembly which can reasonably be understood in the present case.

Appellants no. 2 and 3, Shyam and Krishna Kumar caused injuries with the butts of GENTI on the hands and legs of the deceased. Therefore, it is clear that their object during the unlawful assembly was definitely not to cause the murder of deceased Shivnarayan. However, from the evidence on record it is clearly established that deceased had suffered several injuries due to number of assaults made on him by the members of the unlawful assembly.

Having regard to the injuries suffered by the deceased, which are evident from the evidence of Dr. Govind Singh Kushwaha (PW13) and on finding that accused/appellants had formed an unlawful assembly, we are of the view that appellants no. 2 and 3 should be held guilty u/s 325 read with section 149 I.P.C. and not u/s 302 read with section 149 I.P.C. Hence, we set aside the impugned conviction and sentence of imprisonment for life of appellants no. 2 Shyam and No. 3 Krishna read with section 149 I.P.C. but we convict both of them under sections 325 read with section 149 I.P.C. and sentence them to rigorous imprisonment for the period of five years. Therefore, the order of suspension of sentence of appellant no. 2 Shyam and No. 3 Krishna Kumar @ K.K. @ Banti by granting ad-interim bail on 12.12.2007 during pendency of this criminal appeal stands vacated. Appellants no. 2 Shyam and No. 3 Krishna Kumar are directed to surrender before the trial court for undergoing remaining part of the jail sentence. Accordingly, appeal in respect of accused/appellant no. 1 Mahendra @ Mota is dismissed and appeal in respect of accused/appellant no. 2 Shyam and No. 3 Krishna is partly allowed to the extent indicated above.