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Judgment
Criminal appeal Nos. 2160/2007, 2194/2007 and 2419/2007 arise out of the same incident and, therefore, heard and decided concomitantly.
These three appeals arise out of judgment dated 04.10.2007 passed by Special Judge (Atrocities) and Additional Sessions Judge, Damoh in
S.T. No.235/2005 whereby all the appellants have been found guilty for the offence under Sections 148 and 302/149 of the Indian Penal Code
and have been sentenced to 2 years rigorous imprisonment under Section 148 of the I.P.C. and imprisonment for life and fine of Rs.1,000/- under
Section 302/149 of the I.P.C. with a stipulation for six months rigorous imprisonment in case of default.
Prosecution story in brief is that, on 03.06.2005, at about 7.00 P.M., the accused persons armed with deadly weapons, framed an unlawful
assembly with the common object of murdering deceased Chandan Singh and waited for him near tamarind tree and when deceased Chandan
Singh was returning to his house on his bicycle with his daughter Hirabai (P.W.-4), they attacked and assaulted him and caused fatal injuries, which
resulted in his death.
According to the prosecution, there was previous enmity between the deceased and the accused persons on account of cutting of trees situated
on the boundary of their fields. It is stated that on 03.06.2005 at 7.00 P.M., Chandan Singh closed his hotel and went home alongwith his daughter
on cycle, whereas his father Umrao Singh (P.W.-3) was following him on foot. When Chandan Singh reached near the tamarind tree, the accused
persons, who were already lying in wait for them, attacked him with farsa, axe, lathi and stones. Muttu @ Kanai Singh assaulted with farsa on the
thigh of deceased Chandan Singh. When the deceased tried to run away, Vimlabai pelted stones, which hit Hirabai (P.W.-4) instead. Thereafter
Muttu, Raghuveer, Bhagirath, Suresh and Sahab Singh repeatedly struck the deceased with farsa, axe and lathi. The deceased was thereafter
taken to the police station in a bullock cart, when enroute, he succumbed to his injuries.
Report (Ex.P-7A) to this effect was lodged by Umrao Singh (P.W.-3), on the basis of which criminal law was set into motion. Spot map was
prepared, statement of the witnesses were recorded and on the direction of accused persons, offending weapons were recovered and sent for
chemical examination.
After completion of the investigation, charge sheet was submitted against six persons namely, Muttu, Raghuveer, Bhagirath, Narayan Singh,
Sahab Singh and Vimlabai. Suresh Singh and Mulle Singh being juvenile were separately tried. The prosecution examined 16 witnesses. The
accused when examined under Section 313 of the Cr.P.C., abjured their guilt and pleaded false implication.
The trial Court relied mainly on the evidence of P.W.-3 Umrao Singh, P.W.-4 Hirabai. P.W.-6 Jankibai, P.W.-8 Takhat Singh, P.W.-12 Kirat
Singh and the medical evidence on record, and after detailed scrutiny of the evidence, recorded a finding of guilt against the accused persons and
convicted and sentenced them as aforesaid.
Shri Santosh Yadav, learned counsel appearing for the appellants contended that the appellants were falsely implicated on account of previous
animosity between the parties. It is urged that there were no independent witnesses and all the witnesses examined by the prosecution were
relatives of the deceased. It is further urged that the incident was not preplanned and there was no injury by lathi and stones on the body of the
deceased, under the circumstances, the conviction of Sahab Singh, Narayan Singh and Vimlabai, who were allegedly carrying lathi and stones,
under Section 302/149 of the I.P.C. cannot be sustained.
Shri Vaibah Tiwari, learned Govt. Advocate appearing for the respondent/State, on the other hand, has submitted that the view taken by the
trial Court was reasonable having regard to the consistent and unimpeachable evidence of the eye witnesses on record.
We have heard the learned counsel for the parties at length and on meticulous perusal the record, it is observed that the postmortem report of
the deceased indicates that there were multiple injuries, grievous in nature, all over the body of the deceased.
Dr. Sanjeev Gupta (P.W.-7), who conducted the postmortem, found the following injuries:-
(1) Incised wound + with fracture of lower third, left leg, size of wound 3""x 2"" muscle deep.
(2) Incised wound + over right leg with fracture of lower third of right leg size of wound 7"" x 2"" bone deep with clotted blood.
(3) Incised wound + over right thigh size 2"" x 1/2"" muscle deep.
(4) Incised wound + over back side scapular region left.
(5) Incised wound + over back side 4"" x 1"" muscle deep with clotted blood.
(6) Incised wound + over back side 1"" x 1"" muscle deep with clotted blood.
(7) Incised wound + over back side 3"" x 2"" muscle deep with clotted blood.
(8) Incised wound 4 1/2"" x 3"" muscle deep with clotted blood back side.
(9) Incised wound + over back side 2 1/2"" x 1"" muscle deep with clotted blood.
The doctor has opined that the death occurred due to cardio-respitary failure due to haemorragic shock as a result of multiple
injuries. A perusal of Ex.P-21, makes it clear that deceased was brutally and repeatedly assaulted by the accused persons with the
intent to cause his death.
It is further observed that the FIR (Ex.P-7A) was promptly lodged at 9.30 P.M. on the same day by P.W.3 Umrao Singh, wherein he has
clearly stated that he, Janki, Hirabai and the deceased were going home from their hotel, when on their way, they saw the accused persons armed
with farsa, axe and lathi, waiting for them. These accused persons repeatedly assaulted deceased Chadan Singh, who fell down from the bicycle.
Vimlabai threw stones at Hirabai. Due to the reaped assaults, Chandan Singh received grievous injuries on his left and right legs, back and the
thighs.
P.W.-3 Umrao Singh in his deposition has stated that he alongwith his son Chandan Singh and grand daughter Hirabai (P.W.-4) went home
after closing their hotel at 7.00 P.M. According to him, Chandan Singh and Hirabai were on the cycle and he was walking behind them. On
hearing the shouts of Hirabai, he rushed to the spot and saw the accused persons assaulting Chandan Singh. He had clearly identified and
established the presence of all the accused persons on the place of incident and the role played by them in the incident. According to him Kirat
Singh (P.W.-12), Takhat Singh (P.W.-8) also came rushing after hearing the cry of Hirabai and witnessed the incident.
Hirabai (P.W.-3), who is a ten years old daughter of deceased and has also received injuries in the incident has corroborated the statement of
P.W.-3 Umrao Singh. She has clearly stated that when Chandan Singh reached near ''Shivaji ki Madhiya'', the accused persons were waiting
there. Muttu dealt a blow with farsa on deceased''s thigh, as a result of which, the deceased fell down. Deceased then tried to run away but, Sahab
Singh and Narayan Singh hit him with lathi. Vimlabai threw stones at him which hit her instead. Thereafter Muttu, Raghuveer, Bhagirath, Suresh
and Sahab Singh repeatedly struck him with axe and farsa. She has further stated that hearing her shouts, Umrao Singh (P.W.-3), Takhat Singh
(P.W.8) and Kirat Singh (P.W.-12) came rushing to the spot and on seeing them the assailants run away.
Similar is the statement of P.W.-6 Jankibai, P.W.-8 Takhat Singh and P.W.-12 Kirat Singh. They have all stated that after hearing the shouts
of Hirabai, they rushed to the spot and witnessed the incident. They have clearly stated that fearing their life, they did not go to save the deceased
but have witnessed the incident clearly. All these witnesses have been very consistent in their testimony. Their ocular evidence regarding injuries
caused to the deceased is also corroborated by the postmortem report (Ex.P-21) and from the statement of Dr. Sanjeev Gupta (P.W.-7).
The contention of learned counsel for the appellants that all the witnesses being related, their testimony should not be relied upon, have no
substance, just because a witness is a close relative, it is not enough to reject his/her testimony if it is otherwise credible.
In this regard, we may refer to the judgment of the Supreme Court in the case of Mano Datt and another Vs. State of Uttar Pradesh (2012) 4
SCC 79, wherein it has been observed :-
Another contention raised on behalf of the accused/appellants is that only family members of the deceased were examined as witnesses and
they being interested witnesses cannot be relied upon. Furthermore, the prosecution did not examine any independent witnesses and, therefore, the
prosecution has failed to establish its case beyond reasonable doubt. This argument is again without much substance. Firstly, there is no bar in law
in examining family members, or any other person, as witnesses. More often than not, in such cases involving family members of both sides, it is a
member of the family or a friend who comes to rescue the injured. Those alone are the people who take the risk of sustaining injuries by jumping
into such a quarrel and trying to defuse the crisis. Besides, when the statement of witnesses, who are relatives, or are parties known to the affected
party, is credible, reliable, trustworthy, admissible in accordance with the law and corroborated by other witnesses or documentary evidence of the
prosecution, there would hardly be any reason for the Court to reject such evidence merely on the ground that the witness was family member or
interested witness or person known to the affected party.
The material brought on record clearly establishes that P.W.-3 Umrao Singh, P.W.-4 Hirabai, P.W.-6 Jankibai, P.W.-8 Takhat Singh and
P.W.-12 Kirat Singh are all natural witnesses and their presence could not be doubted at the scene of occurrence. These witnesses have been very
consistent in their testimony. The incident was said to have been taken place at 7 P.M. and the named FIR (Ex.P.7A) was lodged promptly at
9.30 P.M. describing the involvement of all the accused persons in the crime. The statement of these witnesses are credible, unimpeachable and
trustworthy and rightly relied upon by the trial Court.
It has been argued by the learned counsel that the appellants Sahab Singh and Narayan Singh were alleged to have assaulted lathi and
Vimlabai with stones, however no injuries from lathi or stone was found on the body of the deceased, hence they could not be convicted under
Section 302 by applying Section 149 IPC.
Section 149 of the I.P.C. makes every member of an unlawful assembly sharing the common object vicariously liable for the offence whether
they have actually taken part in the actual crime or not. The sharing of the common object has to be ascertained from the conduct and behavior of
the members at or near the scene of occurrence.
In the case of Ramchandra and others Vs. State of Kerala (2011) 9 SCC 257 the Supreme Court has observed in para 17 and 18 as under :-
Section 149 IPC has essentially two ingredients viz. (i) offence committed by any member of an unlawful assembly consisting of five or more
members, and (ii) such offence must be committed in prosecution of the common object (under Section 141 IPC) of the assembly or members of
that assembly knew to be likely to be committed in prosecution of the common object.
For ""common object"", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful
assembly, the common object may form on the spur of the moment; it is enough if it is adopted by all the members and is shared by all of them.
In the present case, as established from the evidence on record, the appellants armed with farsa, axe and lathi were lying in wait for the
deceased and as soon as the deceased reached the spot of incident, they singled him out and repeatedly assaulted him, which resulted in his death.
It is clear from the testimony of P.W.-3 Umrao Singh and P.W.-4 Hirabai that after the deceased fell down from his cycle, Sahab Singh and
Narayan Singh struck him on the back with lathi and Vimlabai pelted stones at him to stop him from running away. Thereafter, all the accused
persons assaulted and killed him by using farsa and axe. The involvement and role played by these appellants in the incident clearly show that they
shared the common object of murdering the deceased. The fact that they were waiting for the deceased makes it clear that the appellants had
come with the express object of killing the deceased.
In view of the aforesaid conduct of the appellants and the manner in which they all acted together clearly established the intention to kill him.
Chandan Singh (deceased) admittedly had tried to run away but the appellants run after him and inflicted heavy blows on him and continued to do
so till he die. Thus it is clear that the common object of these appellants were to commit murder of the deceased. This ocular evidence is also
corroborated by number of injuries on the body of the deceased. In our considered opinion, the trial Court has rightly appreciated the evidence on
record and convicted the appellants under Section 148 and 302/149 of the I.P.C.
As a result of aforesaid analysis, we are of the considered opinion that the appeals filed by the appellants deserve to be dismissed. The
judgment passed by the trial is upheld and affirmed.
It is informed that the appellant Vimlabai in Cr.A. No.2194/2007, appellants Sahab Singh and Narayan Singh in Cr.A. No.2160/2007 and
appellant No.3 Raghveer Singh in Cr.A. No. 2419/2007 are on bail. Their bail bonds shall stand cancelled and they are directed to be taken into
custody forthwith to undergo the remaining part of jail sentence. Appellants No.1 and 2, namely, Muttu @ Kanai Singh and Bhagirath Singh in
Cr.A. No. 2419/2007 are in jail. They shall remain incarcerated to undergo the remaining part of their jail sentence.
A copy of this judgment be also kept in the record of Cr.A. Nos. 2194/2007 & 2419/2007.