Santosh Kumar Shukla vs State of M.P. & Others.

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellants/accused namely Ravi Shanker, Hakam Singh, Sumer Singh, Shiv Pal Singh, Mohan Singh and Dhyan Singh against the judgment and conviction dated 21.07.2006, passed by III Additional Sessions Judge, Hoshangabad, Link Court Sohagpur (M.P.) in S.T. No.31/2003, whereby the appellants/accused have been convicted for commission of offences punishable under Section 148 of IPC and sentenced to undergo rigorous imprisonment for two years and a fine of Rs.500/- each, Section 302 / 149 of IPC and sentenced to undergo rigorous imprisonment for life and a fine of Rs.1,000/- each, Section 325 / 149 (on two counts) of IPC and sentenced to undergo rigorous imprisonment for three years and fine of Rs.500/- each with default stipulations.

The prosecution story in nutshell is that on 26.07.2002 at around 4 - 5 am early morning, complainant Antram was sleeping with his wife Bhagwati in the backside of his house. His brother Naresh and father Barelal were also sleeping inside the house. Appellants Ravi Shanker, Hakam Singh, Sumer Singh, Shiv Pal Singh, Mohan and Dhyan Singh alongwith other accused persons armed with axe and lathi came there and started beating Antram. Appellant Hakam Singh inflicted blow of axe on his head and thereafter other appellants caused injuries by lathi. Antram cried for help hearing this his brother Naresh came on the spot and tried to save him, he was also beaten by appellants and other accused persons. Thereafter, appellants went in the room of Barelal and dragged him out and assaulted him by axe and lathi and caused fatal injuries. They also burnt his the hand and legs. Barelal died on the spot. After beating Barelal

appellants flew away. An intimation of the incident was given at Police Station Pachmadi by telephone by some villager. Sub Inspector Mohan Sarwan SHO arrived on the spot and recorded Dehati Nalashi (Ex.P/53) and Dehati Marg (Ex.P/52) on the report of Antram. The inquest was conducted and panchanama of dead body of Barelal was prepared. Spot map (Ex.P/56) was prepared. A container of Kerosine oil and lathi were seized from the spot. Complainant Antram and his brother Naresh were sent to hospital for medical examination, dead body was sent for postmortem. The police registered offence against appellants and other accused persons. The weapons axe and lathies were seized at their instance. Statements of witnesses were recorded. It is revealed that the appellants and other accused persons suspected Barelal practicing Jadu-tona (witchcraft) and causing unnatural death of their relatives. Due to this enmity they killed the deceased. After usual investigation a charge- sheet has been filed against 19 accused persons including present appellants before the Court.

The trial Court framed the charges of offence punishable under Sections 148, 302, 307 (on two counts) of IPC against the appellants. They abjured guilt and pleaded innocence.

Prosecution adduced fourteen witnesses in its support whereas the appellants had examined one witness in their defence.

The trial Court by passing the impugned judgment held the appellants guilty for commission of offence punishable under Sections 148, 302 / 149, 325 / 149 (on two counts) of IPC and sentenced as mentioned hereinabove. The other accused persons were acquitted by the trial Court.

It is argued by learned counsel for the appellants that there is material discrepancies found in the statements of complainant and other eye witnesses. Initially 19 accused persons were prosecuted before the trial Court, out of them the trial Court had acquitted 13 persons. When the statements of witnesses were not found reliable against 13 persons than they cannot be relied against present appellants. There is no independent corroboration. There is discrepancies between ocular and medical evidence. The trial Court had committed illegality in holding the appellants guilty for commission of alleged offence.

Heard arguments, perused the record.

It is not disputed by the defence that on 26.07.2002 the deceased Barelal and his sons complainant Antram and Naresh had received injuries and Barelal died on the spot. The Investigation Officer Mohan Sarwan (PW-13) arrived on the spot and recorded Dehati Nalashi (Ex.P/53) and Marg intimation (Ex.P/52) and sent the dead body for postmortem and also Antram and Naresh for medical examination. This fact is duly verified by witnesses Antram (PW-3), Naresh (PW-6) and Mohan Sarwan (PW-13).

Dr. Atul Jain (PW-11) deposed that on 26.07.2002 at Civil Hospital Pachmadi, he had examined Naresh, Antram and performed postmortem of deceased Barelal. He further deposed that on examination of Naresh he found following injuries:-

i. Pain and swelling in the middle finger of right hand. ii. Multiple train track bruises over back about 20 - 25 in numbers.

iii. Incised wound 7 X 1/2 X 1/2" on the backside of skull. iv. Lacerated wound 2 X 1/2 X 1/2" on the backside of head. v. Two lacerated wounds 3 X 1/2 X 1/2" on the backside of skull. vi. Huge swelling over right fibular surface of mid leg. Doctor further deposed that on aforesaid date he had also examined Antaram and found following injuries:- i. Lacerated wound 2 X 1/2 X 1/2" on the parietal region of skull. ii. Bruise, swelling and pain on right hand. iii. Huge swelling and pain on left forearm. iv. Lacerated wound 2 X 1" on the head. v. Swelling and pain in the right knee and joint was not moving. vi. Multiple train track bruises over back about 20 - 25 in numbers.

It is opined by the doctor that injuries of Naresh and Antaram are caused by hard and blunt object, twelve hours old. He referred the patients for X-ray, the statement of doctor is duly corroborated by MLC report Exs. P-59 and P-60 respectively. He further deposed that on his advice, the X-ray of Naresh and Antaram were taken and he found fractures on middle and index finger of right hand of Naresh and similar fracture on middle finger of right hand of Antaram was found. The X-ray report are Exs.P-61 and P-62. 11. It is deposed by Dr. Atul Jain (PW-11) that on postmortem of body of deceased Barelal he found multiple bruises train track in appearance approx. 3" - 4" in width over whole abdomen, chest and arms. Left arm was fractured at mid way. Hematoma over right forehead of fronto parietal bone. Multiple fractures of ribs over both sides. Right side lower three and left lower four ribs were fractured. Left side humerus bone was fractured. Liver and spleen were ruptured. It is opined by the doctor that the injuries are caused during twenty to thirty six hours since postmortem. The cause of death is shock resulting from profuse bleeding due to rupture of spleen and liver. The injuries are ante-mortem and death is homicidal. The statement of doctor is corroborated by postmortem report Ex.P-63. The testimony of doctor remained unchallenged during cross-examination. Therefore, relying upon the statement of doctor and postmortem report, it is proved that the death of Barelal is homicidal.

Now the question arises whether the appellants were member of unlawful assembly and they had assaulted the deceased by deadly weapons in furtherance of common object of unlawful assembly? In this regard, the prosecution has examined complainant Antaram (PW-3), Smt. Sita Bai (PW-4), Naresh (PW-6), Smt. Bhagwati Bai (PW-7) as eyewitnesses to the incident. They all are relatives of the deceased, therefore, we have to consider their statements with caution and circumspection.

Antaram (PW-3) deposed that on 26.07.2002 at around 4-5 O''clock in the morning he was sleeping with his wife Smt. Bhagwati Bai in the back side of his house. He heard the shouting of street dogs and woke up. He saw appellant Hakam Singh, Sumera, Ravi Shankar, Shiv Pal Singh, Mohan Singh and Dhyan Singh armed with lathi and axe came near him and started beating him. Hakam Singh inflicted a blow of

axe on his head. Other appellants inflicted blows of lathies on his head, back, hands and legs. He cried for help, hearing this his brother Naresh came there to intervene, the appellants assaulted him by axe and lathies. Thereafter, appellants went in the room of his father Barelal and brought him out of the room and assaulted him by axe and lathies. Other accused Garjan Singh, Munshi Lal, Tulsiram, Jaswant and Dhyan Singh were also present there along with the appellants. After beating his father, appellants sprinkle kerosene oil on hands and legs of Barelal and set him ablaze. Barelal died on the spot. His Bhabhi Sita Bai and Sukhwati Bai were also present in the house and witnessed the incident. Appellants were suspecting his father Barelal to practice Jadu-Tona (witchcraft). Police arrived on the spot. He lodged the report which is recorded as Dehati Nalasi Ex.P-53 and also lodged Marg Intimation Ex.P-52. Police prepared spot map Ex.P-56. Panchnama of dead body Ex.P- 55 and sent the dead body for postmortem. He and his brother Naresh were also sent to hospital for medical examination. In cross-examination, it is found that the names of Garjan Mushi, Tulsi, Jaswant Singh, Dhyan Singh are not mentioned in Dehati Nasali Ex.P-53 and police statement Ex.D-1 of this witness. It is also not mentioned that by sprinkling kerosene oil on deceased, appellants set him ablaze. In view of above omission, the trial Court has not believed the statement of this witness against accused Garjan Mushi, Tulsi, Jaswant Singh, Dhyan Singh. As far as present appellants are concerned, we do not find any material omission or contradiction in the statement of Antaram.

Another Naresh (PW-6) deposed that on the date of incident, around 4-5 a.m. in the morning he was sleeping in the Osari (first floor) of his house. His brother Antaram was sleeping in back side of the house. He heard the noise of dogs and cry of his brother Antaram. He woke up and went to the back side of the house and saw appellant Hakam, Mohan Singh, Shiv Pal Singh, Sumer Singh, Dhyan Singh, Ravi Shankar were present there. Hakam Singh was armed with axe and other appellants were armed with lathies. Hakam Singh inflicted a blow of axe on Antaram and thereafter, other appellants had also beaten him by lathi. The other accused persons Jaswant, Sumer Singh, Ravi Shankar, Mohan, Shiv Pal and Dhyan Singh assaulted him by lathi. Hakam Singh inflicted a blow of axe on him. Thereafter, appellants and other accused persons Tulsi, Mool Singh, Garjan went in the room of his father Barelal and dragged him out and caused injuries by lathi and axe. They also burnt hand and legs of his father by kerosene oil. His father Barelal died on the spot, the incident was witnessed by his wife Sukhwati and Bhabhi Sita Bai. After the incident police arrived on the spot and conducted investigation. In cross- examination this witness has not made any contradictory statement regarding presence and participation of present appellants in beating him, his brother Antaram and father Barelal.

Bhagwati Bai (PW-7) deposed that at the time of incident, she was sleeping her house. Her husband was also sleeping near her. At around 4 O''clock in the morning, hearing the shouting of dogs, her husband Antaram woke up. She saw the appellants Ravi Shankar, Hakam Singh, Sumer Singh, Shiv Pal Singh Mohan and Dhyan Singh along with other persons, 19-20 in number arrived in the house where her husband was sleeping and started beating her husband Antaram. Hakam Singh was armed with axe and other appellants were keeping lathies in their hands. They have assaulted and caused injuries to Antaram. Hearing the cry of Antaram, his brother Naresh came there and tried to intervene, the appellants also assaulted him. Thereafter, they went in the room of Barelal and brought him out of the room and inflicted fatal injuries and committed his murder. They have also burnt the hands and legs of Barelal by sprinkling kerosene oil on him. Sukhwati Bai and Sita Bai were also present in the house and they have witnessed the incident. Similar statement has been given by Smt. Sita Bai (PW-4) in her court statement. Sita Bai deposed in her cross- examination that seeing the incident, she hide herself in a hut where cattle are kept. Although, she had witnessed the incident but she cannot state clearly individual role played by each accused.

The testimony of complainant Antaram (PW-3) is duly corroborated by his brother Naresh (PW-6), wife Bhagwati Bai (PW-7) and Bhabhi Sita Bai (PW-4). They all have categorically deposed that all the appellants/accused persons had entered in the house and assaulted Antaram and Naresh and also beaten Barelal and caused his death. The statement of Antaram is duly corroborated by Dehati Nalasi Ex.P-53 recorded by Sub Inspector Mohan Sarwan (PW-13) who arrived on the spot soon after the incident. The dead body of deceased was found inside his house. Although these witnesses have also stated about the presence of other accused persons on the spot at the time of incident but keeping in view the omissions in their police statements and

Dehati Nalasi, their statements in respect of other accused persons were disbelieved by the trial Court. But whereas present appellants are concerned, there is no material discrepancies found in the testimony of prosecution witnesses. It appears that these witnesses are making some exaggeration in their statement.

Hon''ble Apex Court in case law Appa Bhai Vs. State of Gujarat AIR 1988 SC 696, held that :-

"With regard to falsehood stated or embellishment added by the prosecution witnesses, It is well to remember that there is a tendency amongst witnesses in our country to backup a good case by false or exaggerated version. In variably the witnesses add embroidery to prosecution story, perhaps for the fear of being disbelieved. But there is no ground to thorw the case overboard, if true in the main. If there is a ring of truth in the main, the case should not be rejected. It is the duty of the Court to call out the suggests of truth from the evidence unless there is reason to believe that the inconsistencies of falsehood are so glaring as utterly to destroy confidence in witness."

In State of U.P. Vs. Anil Singh, AIR 1988 SC 1998, it is held that :-

"The Court should make every effort to disengage the truth from the falsehood and to rift the grain from the chaff rather than take the easy course of rejecting the entire prosecution case merely because there are some embellishment."

In Mahavir Singh Vs. State of MP (2016) 10 SCC 220 in para 24 observed that :-

"It is the duty of the Apex Court to separate chaff from the husk and to dredge the truth from the pandemonium of statements. It is but natural for human beings to state variant statements due to time gap but if such statements go to the defeat the core of the prosecution then such contradictions are material and the Court has to be mindful of such statements."

In the present case, the incident took place at the residence of the deceased as well as the witnesses. It was early hour of the day around 4-5 a.m. whenthe witnesses were sleeping in the house. Witnesses PW-3 and PW-6 are real sons and PW-4 and PW-7 are daughter-in-laws of the deceased. Obviously, therefore, their presence in there own house was natural and they could not be said to be a chance witness. It is settled law that a witness who is a relative of the deceased or victim of a crime cannot be characterized as "interested". The term "interested" postulates that the witness has some direct or indirect "interest" in having accused somehow or other convicted due to animus or for some other oblique motive. It is clear that a close relative cannot be characterized as an "interested" witness. He is a "natural" witness. His evidence, however, must be scrutinized carefully. Close relationship of witness with the deceased or victim is no ground to reject his evidence. On the contrary, close relative of the deceased would normally be most reluctant to spare the real culprit and falsely implicate as innocent one. 19. As far as contention of learned counsel for the appellants as to the witnesses have not specifically stated about the exact role played by each of the accused persons inasmuch as they have not mentioned who assaulted on which part of the body and with what weapon, therefore, their general statements cannot be relied upon. We are not inclined to accept this argument. It is stated by all the witnesses that at the time of incident appellant Hakam Singh armed with axe and other appellants were armed with lathies. They all took active part in beating and causing injuries to witness Antaram, Naresha and deceased Barelal.

The appellants, who are six in numbers, have assaulted simultaneously to the witness and the deceased, therefore, it would be very difficult for a witness to describe the actual role played by each of the accused. Hon''ble Apex Court in case law Vyas Ram @ Vyas Kahar v. State of Bihar AIR 2014 SC (Suppl) 143 observed as under :-

"That where a crowd of assailants, who were the members of an unlawful assembly proceed to commit a crime, in pursuance of the common object of that assembly, it is often not possible for the witnesses to describe the actual part played by each one of them, and when a large crowd of persons armed with weapons assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. In that case several weapons were carried by different members of the unlawful assembly, and an accused who was the member of such an assembly and was carrying firearms was not permitted to take any advantage of the fact that he did not use those firearms, though other members of the assembly used their respective firearms."

The witness Antaram (PW-3) and Naresh (PW-6) are also the injured witness who had received injuries at the time of incident, therefore, their presence at the scene of occurrence is duly proved. These witness have no previous enmity with the appellants, it appears that appellants were suspecting the deceased Barelal for causing unnatural death of different people of village by practicing Kala-Jadu (witchcraft), therefore, they have formed unlawful assembly with an object to kill the deceased. The police has seized the axe and lathies at their instance.

In view of aforesaid discussion, the testimony of complainant Anataram (PW-3), Naresh (PW-6), Bhagwati Bai (PW-7) and Sita Bai (PW-4) appears to be cogent, reliable and trustworthy. The trial Court on proper appreciation of evidence has arrived at the conclusion that the appellants being member of unlawful assembly caused grievous hurt to Antaram and Naresh and also committed murder of Barelal. The findings of trial Court is neither perverse nor illegal. The trial Court has rightly held the appellants guilty for commission of offence punishable under Sections 148, 302 / 149 and 325 / 149 of IPC and sentenced accordingly.

We do not find any merits in this appeal and it is hereby dismissed.