Premlal & Anr. vs State of Madhya Pradesh

Appellants have filed this appeal against the judgment dated 13.02.1995 passed by the Ist Addl. Sessions Judge, Balaghat in Session Trial No.

114/1991 whereby the appellants have been convicted under Section 302/34 of the Indian Penal Code.

The prosecution case is that on 02.02.1991 at about 8:45 pm at Ward No. 12 Waraseoni in front of the house of Padam (since dceased), the

appellants were abusing him. Padam came out from his house. Appellant No. 1 Premlal took a burning torch (mashal) and appellant No. 2 Ramesh

took lathi. Therefore, Padam ran away. The appellants chased him. Appellant Ramesh pushed him due to which deceased Padam fell down in a

drain. Premlal ablaze him. Thereafter, they beat Padam by lathi. Padam died on the spot. Sarita Bai (PW-1) daughter-in-law of the deceased,

Jeevan Koshti, Jagdish Koshti and other persons witnessed the incident. Sarita Bai (PW-1) lodged the FIR against the appellant at police station,

Waraseoni. Crime under Section 302/34 was registered against the appellants. After due investigation, charge-sheet was filed before the

concerned Court.

The trial Court framed charges under Section 302 r/w Section 34 of IPC against the appellants. They abjured guilt and pleaded that they were

falsely implicated by the complainant party.

Learned Trial Court held the appellants guilty for committing murder of Padam. Hence, they were convicted under Section 302 r/w Section 34

of IPC and awarded as mentioned above.

The appellants challenged the above findings on the ground that no eye-witness was examined by the prosecution. Name of Sarita Bai (PW-1),

Gopika (PW-4) and Mirja Shamim Beg (PW-3) were not mentioned in the FIR, hence, their testimony is unreliable and their conduct also

indicates that they have falsely stated against the appellants. If they were present on the spot they would have tried to rescue the deceased. It was

alleged by the appellant that the death of the deceased was caused by his family members due to property dispute, hence, they prayed to set aside

the impugned judgment and they be acquitted from the charges levelled against them.

Learned Government Advocate appearing for the respondent- State vehemently opposed the contentions raised by learned counsel for the

appellants.

Heard learned counsel for the parties at length. Perused the record.

It is not in dispute that at the time of incident, age of deceased Padam was about 60 years and his daughter-in-law Sarita Bai (PW-1) and

Gopika Bai (PW-4) daughter of the deceased and other family members were residing with the deceased. They were making bidi at their

residence. The deceased was taking rest. Sarita Bai (PW-1), Mirja Shamim Beg (PW-3) and Gopika Bai (PW-4) consistently stated against the

appellants in support of the prosecution story. On the date of incident at about 9:00 pm, the appellants were abusing deceased Padam. They used

filthy language for him. Hence, the deceased came out from his room and objected the appellants. At that time all the above witness saw that

appellant No. 1 Premlal was armed with burning torch (mashal) and appellant No. 2 Ramesh took lathi in his hand. They pounced towards the

deceased to beat him, therefore Padam ran away. Appellants chased him. Ramesh inflicted blow of lathi on his backside. The drain was 2-3 feet

deep and 1 1/2 feet wide. The drain was dry. Padam fell down in a drain. Appellant Premlal set him ablaze by using the torch (mashal). Thereafter,

both the appellants assaulted Padam by lathi. Padam shouted for help but he failed. He died on the spot and appellants fled away. Sarita Bai (PW-

1) and other persons reached the place where Padam was lying dead. His dhoti, kurta and coat were burnt. Thereafter, Sarita Bai (PW-1) went to

the police station Waraseoni along with Gopika (PW- 4) to lodge the report.

All the above facts of prosecution story is duly corroborated by Sarita Bai (PW-1), Mirja Shamim Beg (PW-3) and Gopika (PW-4) in similar

ways. We do not find any material contradiction and omissions in their testimony. Hence, their proved cogent and trustworthy.

M.L.Pawar (PW-6) Station House Officer proved that the incident took place at about 9:15 pm and the FIR has been lodged by eye-witness

Sarita Bai (PW-1) at about 11:50 pm on the same date of incident. M.L.Pawar (PW-6) reached on the spot on 03.01.1991 and prepared

Panchnama of the dead body (Ex. P/11) and sent the body for postmortem.

Dr. M.S.Dharde (PW-2) conducted postmortem of the deceased Padam. He found that except the back portion of the abdomen and both the

arms, remaining body of the deceased was burnt. His white kurta, banyan, dhoti and coat were partially burnt and had blood stains on it. The body

of the deceased was burnt upto 73 %. Dr. Dharde found the following external injuries on the body of the deceased :-

(1) Lacerated wound on the middle part of the head towards the nose of size 8x5x4 cms. with blood clotting.

(2) Lacerated wound in semi-circular shape over right side of the head of size 6x3x2 cms with blood clotting.

(3) Lacerated wound obliquely shaped of size 3x2x2 cms. With blood clotting at front side of skull.

(4) Lacerated wound just above the right eye of size 3x2x2x1/2 cms with blood clotting.

(5) Lacerated wound on the backside of head of size 5x21/2x21/2 cms. with blood clotting.

(6) Lacerated wound just below the left eye of size 3x2x2 cms with blood clotting.

(7) Lacerated wound on the left side of skull of size 3x11/2x21/2 cms., irregular shape with blood clotting.

(8) Lacerated wound on the backside of head of size 7x21/2x21/2 cms. irregular edge with blood clottings.

Dr. Dharde also found the following internal injuries on the body of the deceased :-

(1) A depressed comminuted fracture on frontal and major bone of head. Bone pieces were present their. Fracture was irregular of size 3x3 cms.

(2) Strandular and cerebral hemorrhage of irregular shape of 3x3x4 cms was present in both the hemisphere of the brain. Brain was damaged.

(3) Right ventricle of the heart was filled with blood clott and left ventricle was empty. Each organ were congested.

As per Dr. Dharde (PW-2) the deceased died due to injuries on his brain and hemorrhage in brain. Nature of death was coma. Injuries were

homicidal in nature. Deceased died within 24-28 hours of the postmortem.

Learned counsel for the appellant has challenged the testimony of Dr. M.S.Dharde (PW-2) on the ground that the identification of the

deceased was not established in the case. On the contrary, doctor specified that the close relatives of the deceased identified the dead body.

We do not find any reason to accept the said contention of learned counsel for the appellants. During the investigation, the identification of

dead body was not challenged by anyone. Further, we do not find any reason to disbelieve the doctor''s opinion and his postmortem report

(Ex.P/2). Evidence of Dr. M.S.Dharde (PW-2) clearly corroborated the prosecution story. Hence, we are also inclined to accept the reasoning of

learned trial Court to believe the prosecution case.

M.L.Pawar (PW-6) Investigation Officer prepared spot map (Ex.P/13) which was not challenged by the defence side. Spot map indicates that

the appellants were also the neighbors of the deceased. Further that, the appellants have not challenged their presence on the spot at the time of the

incident. Presence of eye witnesses is also established near the spot at the time of the incident. On second day of the incident, police recorded

memorandum of the appellants. Appellant No. 2 Ramesh disclosed about his lathi vide memorandum Ex. P/5 and police recovered it on the same

day vide seizure memo Ex.P/7 from his possession. Similarly, on the same day, memorandum of the Premlal was recorded and police recovered a

lathi from his possession and clothes of Premlal as per seizure memo Ex. P/6 and Ex. P/8. Clothes of the deceased were also seized by the police

and all the articles were sent to the FSL, Sagar for chemical examination.

FSL report Ex. P/14 established that on the clothes of appellant Premlal, Article-D and clothes of the deceased Article-E1 to E4 blood stains

were present. Appellant Premlal did not offer any explanation about the source of blood which was found on his full pant. Therefore, FSL report

also supported the prosecution case against the appellants. Hence, we also rely on the prosecution evidence on record.

Learned counsel for the appellants has submitted that the trial Court has not considered the testimony of defence witnesses, who established

that deceased Padam had enmity with the appellants. After considering the defence evidence, in our opinion, it was not sufficient to prove the

defence version. It can only establish that the relation between the appellants and deceased were disputed prior to the incident. Therefore, enmity

can be used for both side not by the complainant only or by the defence to commit crime.

In case of Rakemdra Vs. State of MP [2014(5) MPHT 233 (SC), it was held that :

It should be noted that enmity is a doused edged weapon, raising the possibility that due to enmity the incident took place and also the possibility

that the appellant was, therefore, falsely implicate. Hence, where there is enmity, the evidence of witnesses should be minutely examined.

We do not find any lacuna or reason to disbelieve the prosecution story. The learned trial Court in right prospective held the appellants guilty

for committing murder of the deceased. Looking to the facts and circumstances of the case and preparation of the appellants to commit the murder

of the deceased directly established that they have intention to kill the deceased by burning him. Therefore, after ablaze him, both the appellants

assaulted him and caused eight fatal injuries on his vital part head and face. Due to which, deceased died on the spot. He was bare handed and the

appellants were armed with deadly weapons. After chasing the deceased, they caused such injuries to him. Therefore, the case of the appellants

duly covered under the crime of murder punishable under Section 302 of the IPC. They committed ''murder'' of the deceased, in furtherance of

their common intention.

In case of Ramaswami Ayyangar Vs. State of T.N. 1976 SCC (Cri) 518. The Supreme Court explaining the essence and purport of common

intention , it was observed as follows:-

The acts committed by different confederates in the criminal action may be different but all must in one way or the other participate and engage in

the criminal enterprise for instance, one may only stand guard to prevent any person coming to the relief of the victim or may otherwise facilitate the

commission of crime"". Such a person also commits an ""act"" as much as his coparticipants actually committing the planned crime.

Similarly, in the case of Raj Kishore Purohit Vs. State of Madhya Pradesh and others, (2017) 9 SCC 483 summarized the principles

prescribed how to determine the common intention and held that even absence of any overt act of assault, exhortation or possession or weapon

cannot be singularly determinative of absence of common intention. It is not possible to read a person''s mind. There can be hardly be direct

evidence of common intention be deciphered cumulatively from their conduct and behaviour in facts and circumstances of each case. Events prior

to occurrence as also after, and during occurrence, are all relevant to deduce if there existed any common intention. There can be no straitjacket

formula. See also. Ranvir Singh Vs. State of Uttar Pradesh, (2015) 12 SCC 221.

All the circumstances establish that the appellants had intention to cause injury to the deceased and murder him. Therefore, the appellants have

rightly been convicted by the Trial Court under Section 302/34 of the IPC. Accordingly, we find no merit in this appeal. The appeal is hereby

dismissed.

Appellants are on bail. Their bail bonds stand canceled and they are directed to surrender immediately before the Trial Court for undergoing

the remaining jail sentence, failing which the trial Court shall take appropriate action under intimation to the registry.

Copy of this judgment be sent to the Court below for information and compliance alongwith its record.