Mohar Singh vs The State of Madhya Pradesh

The present appeals under Section 374(2) of Cr.P.C. have been preferred by appellants/accused persons against the judgment dated

27.2.2006 passed by Fourth Additional Session Judge, Sagar(M.P.) in Sessions Trial No.182/2004, whereby the appellants have been convicted

for an offence punishable under section 302/34 of IPC and awarded R.I. for life with fine of Rs. 1000/- each, with default stipulations.

The case of prosecution in brief is that on 16.1.2004 at around 9:00 O?Clock in the morning at Village Oriya, deceased Virendra Singh was

going to his field. On the way at Khirka, he found Pritam, Akhilesh and Jahar playing kullu. He joined them and started playing Kullu with them.

Other witnesses Munna, Tijai, Ganesh Ram, Sher Singh, Karodi were also present there witnessing the game. At about 10:30 a.m. appellant

Kedar Singh armed with Tabbal and Mohar Singh armed with axe arrived there. Appellant Kedar Singh abused Virendra and asked him what he

was speaking about Kedar. Thereafter Kedar Singh dealt a blow of Tabbal on the neck of Virendra Singh. Mohar Singh assaulted him by axe on

his hand and back. Seeing the incident, Nanhe Bhai, the brother of Virendra, who was going towards his field shouted for help, then appellants ran

away towards hillock. Virendra sustained fatal injuries and he died on the spot. Nanhe went to Police Station Jaisinagar where he lodged FIR,

Ex.P.7. Investigating Officer R.C.Dangi, Sub- Inspector registered the offence and visited the scene of occurrence, he prepared spot map, Ex.P-1

and Panchanama of dead-body, Ex.P-8. He seized the red earth and plain earth from the spot vide seizure memo, Ex.P-2 and sent the dead-body

for postmortem. During investigation, the appellants were taken into custody and a tabbal was recovered and seized at the instance of appellant

Kedar and an axe was recovered and seized at the instance of appellant Mohar Singh. The clothes of appellants were also seized. The statement

of witnesses were recorded. As per prosecution the appellant Kedar was having illicit relations with Kallo Bai, who is a tribal. Deceased Virendra

objected to it. Due to this Kedar was keeping enmity with the deceased. After completion of investigation, chargesheet has been filed before the

Court.

The trial court framed the charge of offence punishable under section 302/34 of IPC against the appellants. The appellants abjured guilt and

pleaded innocence. The prosecution has examined 23 witnesses; whereas the appellants have examined 3 witnesses in their defence.

The trial court, on appreciation of evidence, found the appellants guilty for commission of offence punishable under section 302/34 of IPC and

sentenced them, as mentioned above.

It is argued by the learned counsel for appellants that appellants have been falsely implicated in this offence. There is no reliable eyewitness to

the incident. The trial court relied upon the testimony of the family members of the deceased, who were not present at the time of incident. There

are material discrepancies found in the testimony of the prosecution witnesses and therefore, they cannot be believed. It is not proved that the

appellants had any enmity with the deceased. The trial Court has erroneously convicted the appellants in alleged offence.

Heard arguments. Perused the record.

It is not disputed that the deceased Virendra Singh had sustained fatal injuries at the time of incident and he has expired due to these injuries.

The report of incident, Ex.P.7, has been lodged by Nanhe Bhai, the brother of deceased at Police Station Jaisinagar. Investigating Officer

R.C.Dangi, Sub-Inspector (P.W.21) initiated the inquest, prepared the Panchanama of dead-body, Ex.P.8, and sent the body for postmortem.

These facts are duly verified by the witnesses Nanhe Bhai (P.W.6) and R.C.Dangi (P.W.21).

Dr. R.K.Verma (P.W.3) deposed that on 16.1.2004 at Community Health Centre, Jaisinagar, he had performed the autopsy of the dead-body

of Virendra Singh and found following injuries:-

(i) A sharp-cut injury at middle of chin extending from chin to posterior end of vertebra column and base of skull junction, only skin remaining, size

20 cm at right side and 17 cm at left side the neck was cut. All contents of neck and floor of mouth are sharply cut.

(ii) Lacerated wound 7 X 6 cm below injury no.1 bone deep on the neck.

(iii) A sharp-cut wound over right shoulder size 17 X 6 cm bone deep at right clavicle area.

(iv) Laceration present over left shoulder size 9 x 8 cm muscle deep.

(v) A sharp-cut wound over abdominal wall at right size 8 X 3 cm muscle deep.

(vi) A sharp-cut injury over dorasal aspect of right hand over meta carpophalangeal joint, index middle and ring fingers are cut only skin is

remaining.

On internal examination, the neck, hand, vertebra, brain stem and upper end of spinal cord were found cut and injured. Three ribs of right side

were found cut.

It is opined by the doctor that the injuries were antemortem and cause of death is shock result of injuries caused to the deceased. The statement of

doctor is duly corroborated by the postmortem report, Ex.P.4, given by him.

Thus, relying upon the testimony of doctor it is proved that the deceased had sustained fatal injuries at the time of incident and his death was

homicidal.

Now the question arises whether the appellants have assaulted the deceased by deadly weapons and committed his murder. As per prosecution

story at the time of incident, deceased Virendra Singh was playing Kullu with Preetam Ahirwar, Akhilesh and Jahar at Khirka of village. Other

witnesses Munna, Tijai, Ganeshram, Sher Singh, Karodi were also present there witnessing the game. The prosecution has examined these persons

during trial. Witness Dhiraj Singh (PW-2), Sher Singh (PW-12), Munna (PW-20), Ganeshram (PW-5) have not supported the prosecution and

stated ignorance about the incident. They have been declared hostile by the prosecution.

Other witness Phool Singh (PW-14) and Rampyari Bai (PW-1) although claims to have witnessed the incident but trial Court disbelieved them

on the ground that the Police Statement of Phool Singh was recorded after three months of the incident and during this period he had not narrated

about the incident to any one. Rampyari Bai is an old lady cannot see properly at distant object. The place of occurrence may not be properly

visible from her house.

The trial Court has relied upon the testimony of witness Akhilesh, Preetam, Karodi and Tijai. Akhilesh (PW-10) deposed that at the time of

incident, he was playing Kullu with Preetam, and deceased Virendra. Tijai, Karodi Munna, Ganeshram and 4-5 persons were also present there.

Meanwhile, appellant Kedar armed with Tabbal and Mohar Singh armed with axe arrived there and started beating Virendra. Appellant Kedar

gave a blow of Tabbal on the neck of Virendra. Mohar Singh also assaulted him by axe. Seeing the incident, he ran away from the spot. In cross-

examination, we do not find any material omission or contradiction in his statement.

Preetam (PW-8) deposed that at the time of incident, he was playing Kullu with Akhilesh and Tijai. Virendra, Munna, Santosh, Mahesh were

also present there. Meanwhile, appellant Kedar armed with Tabbal and Mohar Singh armed with axe came there and without telling anything they

assaulted Virendra. Appellant Kedar dealt a blow of Tabbal on neck of Virendra. Seeing this, he ran away from the spot. He did not see Mohar

Singh to assaulting Virendra. This witness has been declared hostile in respect of appellant Mohar Singh. Except witnessing the participation of

Mohar Singh in beating the deceased, rest of his testimony does not show any discrepancy.

Karodi (PW-11) deposed that at the time of incident, he was taking the cattle towards forest. The children were playing Kullu at Khirka of the

village. Meanwhile, appellant Mohar Singh and Kedar arrived there. Kedar assaulted Virendra Singh by Tabbal over his neck and Mohar Singh

also assaulted him by axe.

Tijai (PW-4) deposed that at the time of incident, Preetam, Akhilesh and Virendra were playing Kullu at Khirka of village. He was watching

the game. Karodi, Munna, Ganeshram and Sher Singh were also present there. Meanwhile, appellant Kedar armed with Tabbal and Mohar Singh

armed with axe arrived there. Kedar Singh abused Virendra and asked him what he was speaking about him and gave a blow of Tabbal on his

neck. Thereafter, Mohar Singh assaulted Virendra by giving blow of axe on his right hand and waist.

Complainant Nanhe Bhai (PW-6) deposed that at the time of incident, he was going to his field. When he reached near Khirka of the village,

he saw the children were playing Kullu and deceased Virendra, Preetam, Akhilesh, Sher Singh, Munna were witnessing the game Kullu. He went

ahead about 100 steps, then he heard the cry of children, then he saw the appellant Kedar armed with Tabbal and Mohar Singh armed with axe

assaulting his brother Virendra. Kedar gave a blow of Tabbal on the neck of Virendra. Mohar inflicted 2-3 blows of axe on the waist and

abdomen of Virendra. He rushed towards Virendra, meanwhile, appellants flew away from the spot. Virendra has expired on the spot. He went to

police station Jaishi Nagar and lodged the FIR Ex.P-7. The statement of Nanhe Bhai is duly corroborated by FIR Ex.P-7.

The trial Court has disbelieved this witness Nanhe Bhai mainly on the ground that his presence on the spot is doubtful. Witness Tijai stated that

after the incident, he had given information of the incident to Nanhe Bhai at his home. Maya Bai (PW-9) has also stated the same facts. After

seeing his brother lying on the ground in injured condition, he did not go near him to provide help. His conduct is unnatural. There are discrepancies

in his statement with police statement.

On careful scrutiny of testimony of Nanhe Bhai, we are of the opinion that the trial Court has wrongly disbelieved this witness. His statement is

duly corroborated by the FIR lodged by him. There is no material omissions or contradiction found in his statement. Seeing the ghasty murder of

his brother wherein the neck of deceased was almost chopped off, this witness might have become frightened and perplexed and inspite of going

near the deceased he went home to inform other family members. This cannot be said as unnatural conduct. Different persons behaves differently in

given situation. As far as statement of Tijai (PW-4) and Maya Bai (PW-9) are concerned, they have made a general statement that the information

of incident was given to the house of deceased. It appears that due to some confusion because of passage of time, Tijai has stated that he has

intimated Nanhe Bhai and Dheeraj at his home. Akhilesh (PW-10) has stated that he has seen Nanhe Bhai going towards his field at the time of

incident. Thus, the testimony of Nanhe Bhai inspires confidence and we can rely upon his version.

Thus, from the evidence of witnesses, Akhilesh (PW- 10), Karodi (PW-11) and Tijai (PW-4) it appears that at the time of incident, deceased

Virendra was playing Kullu at Khirka of the village. The appellants Kedar and Mohar Singh arrived there and assaulted Virendra by Tabbal and

axe. We do not find any material discrepancies in the statements of these witnesses. There evidence is duly corroborated by Nanhe Bhai (PW-6)

and postmortem report. Witness Preetam (PW-8) also corroborates this fact by stating that appellant Mohar Singh and Kedar armed with Tabbal

and axe came on the spot. Kedar assaulted deceased by Tabbal, seeing this, this witness ran away out of fear. Since, he ran away during the

assault, therefore, he could not see Mohar Singh assaulting the deceased.

Maya Bai (PW-9) has verified the presence of appellants at the spot by stating that at the time of incident, she had seen appellants Kedar and

Mohar Singh running away from the spot towards hills. Her house is situated at Khirka where the incident took place. Although, this witness has

been declared hostile but above statement of the witness remained uncontroverted.

The testimony of witnesses Akhilesh, Preetam, Karodi, Tijai and Nanhe Bhai appears to be cogent, reliable and trustworthy. They

corroborates each other. Therefore, relying upon their testimonies, it is proved that appellants had assaulted the deceased Virendra by deadly

weapons Tabbal and axe and committed his murder. The trial Court on proper appreciation of evidence has recorded the finding of guilt against

the appellants and convicted them under Section 302/34 of IPC.

We do not find merits in present appeals and these are dismissed accordingly. The bail-bonds of appellant Mohar Singh stands cancelled and

he is directed to surrender before trial Court to suffer remaining part of sentence as awarded by trial Court.