Kaloo @ 2 Ors. vs State Of M.P.
2021 Latest Caselaw 4454 MP

                                     -: 1 :-

     HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(DIVISION BENCH: HON. Mr. JUSTICE VIVEK RUSIA AND HON.
           Mr. JUSTICE SHAILENDRA SHUKLA)

                           CRA No. 234 OF 2009
Appellants.                     1)     Kaloo S/o. Gopilal Tanwar
                                       Aged 50 years.
                                2)     Bhagirath S/o. Gopilal Tanwar,
                                       Aged 31 years.
                                3)     Gangaram S/o. Kaloo Tanwar
                                       Aged 24 years.
                                       All resident of Village Baladiya,
                                       Police Station Rajgarh,
                                       District Rajgarh (Biaora).

                    Vs.

Respondent.                     State of M.P. through P.S. Rajgarh,
                                District Rajgarh (Biaora).


                     ***********************
        Shri Pradeep Kumar Gupta, Advocate for the appellants.
     Smt. Mamta Shandilya, Govt. Advocate for the respondent/State.
                     ***********************
                            JUDGMENT

(Delivered on 18th August 2020) Per se Vivek Rusia, J :

The appellants have filed the present appeal being aggrieved by judgment dated 13.2.2009 passed by the Sessions Judge, Rajgarh (Biaora) in Sessions Trial No.183/2009 whereby they all have been convicted u/s. 302/34 of the IPC and sentenced to undergo life imprisonment and to pay fine of Rs.1000/- - 1000/- and in default of payment of fine amount, to further undergo one-month additional RI.

Facts of the case in short are as under:

2. As per prosecution story, on 27.2.2008 near about at 3 in the evening there was some quarrel between Umesh - son of appellant:Bhagirath with Rohit son of complainant:Kanchan Bai (P.W.1), the appellants along with Gulabbai and Naurangbai went to the house of complainant in order to quarrel. The complainant shut the door of the house to prevent them from

entering the house and did not permit her husband to go outside. They started throwing stones and banging the door by sticks and returned . Next day i.e. on 28.2.2008 near about at 8 am., Tulsiram was went to his 'Badi' (agricultural field) and the complainant followed him at some distance. When Tulsiram reached to his field, accused - Kalu, Gangaram and Phoolsingh, Gulabbai and Naurangbai armed with sticks, Bhagirath and Mukesh armed with 'Fersa' came there, Kalu gave blow by stick on his head due to which he fell down, Gangaram gave blow by stick on the head and Bhagirath gave a blow by means of 'Fersa' on his throat. Thereafter, they all have jointly assaulted him. Mukesh caused the injury by means of 'Fersa. Gulabbai and Naurangbai assaulted him by sticks till he died. Upon shouting by the complainant, her sons - Mangilal and Narayan and other villagers came on the spot and after seeing them, the accused persons fled away. The report was lodged vide Exh. D/1 at Crime No.81/2008 u/s. 147, 148, 149 and 302 of the IPC and the matter was taken up for investigation. The dead body of Tulsiram was sent for postmortem to the District Hospital, Rajgarh. As per postmortem report (Exh. P/2), the death was homicidal in nature. From the spot, blood contained soil and plain soil were collected and seized vide Exh. P/5. Spot map was prepared vide Exh. P/4. Thereafter all the five accused viz. Kalu, Bhagirath, Gangaram, Gulabbai and Naurangbai were arrested and on their information the arms used in commission of the offence were recovered vide seizure memo (Exh. P/16 to P/20). The seized articles were sent to the FSL and vide Ex. P/22 and P/23 the report was received. After completing the investigation, the police filed the charge-sheet against all the accused and the trial was committed to the Court of Sessions. All the accused persons denied the charges and pleaded their false implication in the case. Accordingly, the prosecution was called upon to lead the evidence. In order to prove the charges, the prosecution has examined 7 witnesses as P.W.1 to P.W.7 and got exhibited 23 documents vide Exh. P/1 to P/23. In defence the accused persons did not examine any witness but got exhibited two documents vide Exh. D/1 - the FIR lodged by the complainant and Exh. D/2 - the statement of the complainant given u/s. 161 of the Cr.P.C.

After evaluating the material came on record, learned Sessions Judge vide judgment dated 13.2.2009 has acquitted Gulabbai,and Naurangbai from the offences u/s. 147, 148, 302 and by giving the benefit of doubt acquitted them from the offence u/s. 302/149 of the IPC but convicted the present appellants u/s. 302/34 of the IPC and sentenced to undergo, as stated above. Hence, the present appeal before this Court by the appellants - Kalu, Bhagirath and Gangaram.

3. Shri Pradeep Kumar Gupta learned counsel appearing for the appellants submitted that the appellants have been falsely convicted on the sole testimony of the complainant (P.W.1) without there being any corroboration and support by oral as well as documentary evidence. He further submitted that according to Kanchanbai (P.W.1), she remained with the dead body of her husband in the agricultural field and on her shouting her sons - Mangilal and Narayan and other villagers came on the spot, but did not witnessed the incident. Ramsingh and Massu Patel went to the Police Station for lodging the report. When the complainant did not move from the scene of occurrence, then how the FIR (Exh. D/1) came to have been lodged by Kanchanbai (P.W.1) in Police Station and FIR became a suspicious document and Kanchanbai cannot be said to be a reliable witness, hence the entire conviction is liable to be set aside. Learned counsel further submitted that there is no correlation between medical and ocular evidence. The incident said to have been taken place in an open place, but none of the independent witnesses have been examined by the prosecution. It is further submitted that no blood stains were found from the weapons recovered from the appellants. Dr. R.C. Banshilal (P.W.5) who conducted the autopsy has not stated that all the injuries were sufficient to cause death. He further submitted that the appellants have been falsely implicated in this case. The prosecution has failed to prove the charges beyond reasonable doubt. On the same set of material or evidence, two accused viz. Gulabbai and Naurangbai have been acquitted and the present appellants have been convicted. No additional evidence came on record to convict the present appellants. Hence the appellants are entitled for acquittal.

4. On the other hand, Smt. Mamta Shandilya, learned Govt. Advocate appearing for the respondent/State, opposed the prayer by submitting that the complainant - Kanchanbai (P.W.1) was an eye-witness of the entire incident and there is no reason to disbelieve her testimony which she has narrated in her statement u/s. 161 of Cr.P.C. as well as court's statement. The learned defence lawyer has failed to point out any omission and contradiction in her statement. There is no bar in convicting the accused on the sole testimony of the eyewitness who happens to be the wife of the deceased. There was motive also for committing the offence. There is recovery of the arms from them. As per medical report, Tulsiram sustained as many as five injuries on vital part of the body. The injury No.5 was so deeply caused by means of 'Fersa' was sufficient to cause death. The Doctor has further opined that there was excessive bleeding from injury No.5 which became fatal. The other accused have been convicted with the aid of Section 34 of the IPC although injuries No.1 to 4 caused by them were simple in nature. Sunita Rawat (P.W.7) - Dy. Superintendent of Police (DSP) has specifically stated that Kanchanbai (P.W.1) came to the Police Station for lodging the report which bears her thumb impression. Hence, no interference is called for and the appeal is liable to be dismissed.

I have heard the learned counsel for the parties and perused the record.

5. As per FIR (Exh. D/1), it was lodged by Kanchanbai (P.W.1) on 28.2.2008 at 10 am., i.e. after two hours from the time of incident against Kalu, Bhagirath, Gangaram, Phoolsingh Gulabbai, Naurangbai and Mukesh that on an issue of fight between the children, they all came to her house but she closed the door. They banged on the gate by means of sticks and went back. Thereafter, the complainant and her husband went to sleep. No witness has been examined to prove this incident. Next day i.e. on 28.2.2008 at 7 am., when the complainant and her husband were going to their field, Kalu, Gangaram and Phoolsingh, Gulabbai and Naurangbai armed with sticks, Bhagirath and Mukesh armed with 'Fersa' came there. Kalu gave blow by stick on the head of Tulsiram due to which he fell on the field . Same time Gangaram gave blow by stick on the head of Tulsiram and Bhagirath gave a

blow by means of 'Fersa' on his throat. Thereafter, they all have assaulted him. Mukesh caused the injury by means of 'Fersa. Gulabbai and Naurangbai assaulted him by sticks till he died. Tulsiram died on the spot. When the police came to spot the dead body was lying in a pool of blood in the field. Upon shouting, her son Mangilal and Narayan and other villagers came there and after seeing them, the accused persons fled away. The FIR bears the thumb impression of the complainant Kanchanbai and it was recorded by Sunita Rawat, DSP (P.W.7) who was in-charge of the Police Station and she issued the 'Safina' form and reached the spot along with 'Panch' witnesses and prepared the spot map. As per spot map, the dead body of Tulsiram was found lying in his own 'Badi' (agricultural field) and nearby his field another field marked as 'C' belongs to Bhagirath, Bhanwarlal and Kalu divided by 'Med' from 'D' to 'E'. The seized articles were sent to the FSL and in the cloths of Tulsiram (C-1 & C-2) human blood was found. From Article 'G' ('Dhoti') recovered from Kalu and Article 'J' recovered from Bhagirath, human blood having Group 'O' was found. After completing the investigation, the police had filed the charge-sheet against Kalu, Bhagirath, Gangaram, Gulabbai, Naurangbai. The police had filed the additional charge-sheet against Mukesh before the Juvenile Justice Court as he was juvenile at the time of commission of the offence.

6. The prosecution examined Kanchanbai as P.W.1 who has fully supported her version in the FIR as well as in the statement recorded u/s. 161 of the Cr.P.C. and according to which, Mukesh and Bhagirath were carrying 'Fersa' and the rest of the accused were having sticks. Kalu gave a blow by stick on the head of Tulsiram due to which he fell down. Gangaram gave blow by means of stick on his head. Thereafter, Bhagirath gave a blow by means of 'Fersa' three times on his head. Mukesh, Phoolsingh, Gulabbai and Naurangbai assaulted the deceased by means of stick. There are lots of variation in her court's statement. The complainant was alone on the spot and after seeing Mangilal and Narayan coming, the accused persons fled away. In her cross-examination, the complainant has admitted that Kalu and Bhagirath are real brothers of the deceased Tulsiram and Gangaram is son of

another brother of the deceased. Likewise, all the other accused are closed relatives of the deceased. The deceased Tulsiram was working as a Chainman in Rajgarh. She has admitted that the police did not record that Gulabbai and Naurangbai had assaulted her husband by stones in Exh. D/1 and D/2 despite disclosed by her. Kalu gave one single blow by means of stick on the head of her husband. Gangaram gave a blow by stick, and he fell down and thereafter 2-3 times on his chest. Since 7-8 persons were assaulting her husband, therefore, she did not try to save him and did not sustain any injury. In Para 9, according to her, Ramsingh and Massu Patel called the police on the spot and she remained seated beside the dead body and the police recorded her statement on the spot.

7. Magnilal (P.W.4) has stated that when he reached to the spot, his father was lying in injured condition and his mother said that the accused persons have assaulted her husband. According to him also, Ramsingh and Massu Patel called the police. Sunita Rawat, DSP (P.W.7) came to the spot along with 8 policemen and on the spot the report was lodged. Mangilal (P.W.4) has also stated that when he reached to the spot, his father was lying died and his mother was there and according to her information the brothers had a fight and one brother has killed Tulsiram.

8. As per report of the Dr. R.C. Banshilal (P.W.5), the deceased sustained five injuries as under:

(i) L.W. - 2" x 1/2" (Lt.) side top of skull oblique Antr. posing up to bone.

(ii) Contusion - 5" x 1" coppery read below Rt. Nipple non bontac.

(iii) Contusion - 4" x 1" (Lt.) chest horizontal above dippisternon coppery red.

(iv) L.W. - 1" x 1/2" up to bone (Lt.) maxilla horizontal.

(v) Cvt. Tpsoat (incised would) 5" x 3" oval shaped.

9. Accordingly, to the Dr Only injury No.5 was sufficient to cause death. Injury No.5 was an incised wound size of 5" x 3" on throat from left to right and it was so deep injury that four vertebras were cut. The remaining injuries i.e., injury Nos. 1 to 4 were simple in nature. Arrest witnesses have been declared hostile. According to Sunita Rawat, DSP (P.W.7), Kanchanbai

(P.W.1) came to the Police Station for lodging the report. She was confronted with the statement of Kanchanbai, but she remained stick that Kanchanbai came to the Police Station for lodging the report. "Rojnamcha" was not produced along with the charge-sheet. No "Rojnamcha" number is mentioned in the FIR.

10. Because of the contradictions and omissions in the statement in respect of the injuries caused by Gulabbai and Naurangbai, they have been acquitted by the learned Sessions Judge. The appellant No.1 Bhagirath said to have caused the injury on the throat of the deceased by means of 'Fersa', accordingly he has been convicted u/s. 302 of the IPC and rest of the accused have been convicted with the aid of Section 34 of the IPC. They have been discharged from Section 147, 148 and 149 of the IPC. It is correct that the police did not examine any independent witness, but as per statement of Kanchanbai (P.W.1), the incident took place in the early morning at 8 am. in the agricultural field of Tulsiram and the said agricultural field is surrounded by the agricultural fields of the accused persons. Therefore, there may not be presence of any independent witness.

11. Much stress has been given as to whether the report was lodged by Kanchanbai (P.W.1) in the Police Station or the same was recorded on the spot. It is correct that Kanchanbai (P.W.1) has stated that she did not move from the spot and the police called by Ramsingh and Massu Patel came there and on the spot her statement was recorded. Kanchanbai (P.W.1) is an illiterate lady. She had no knowledge about procedure of registration of the FIR at Police Station or on the spot. The Investigating Officer (P.W.7) who lodged the report has clearly stated that Kanchanbai came to the Police Station and lodged the report, and she took up the investigation. Therefore, this issue is not so important to give suspicion about the incident took place and thereafter FIR was lodged. Kanchanbai (P.W.1) has stated in the FIR as well as in the 161 statement that all the accused came to the agricultural field, they all are brothers and closed relatives of her deceased husband. They all shared common intention to assault her husband . According to her statement, Kalu gave a blow on the head of her husband by means of stick

and due to which he fell down. Thereafter, Gangaram gave a blow on his head by stick. Thereafter Bhagirath caused the injury on the neck of the deceased by means of 'Fersa'. Mukesh also gave a blow by means of 'Fersa', but there is no incised wound on the head. Even otherwise, injury Nos. 1 to 4 are simple in nature and not added with injury No.5 to cause death. As per FSL report, the blood was found on the cloth ('Dhoti') of Bhagirath and which has been matched with the blood group of the deceased and there is specific allegation of causing injury on the neck of the deceased by means of 'Fersa' by Bhagirath, therefore, the sole testimony of Kanchanbai (P.W.1) cannot be discarded without there being any support from the independent witnesses. There is corroboration by medical evidence as well as FSL report. The blood stains were found on the 'Fersa' recovered from Bhagirath, but the quantity was insufficient. Therefore, Bhagirath has rightly been convicted for the offence punishable u/s. 302 of the IPC although he caused only one injury by means of 'Fersa' but with full force which was so deep to cut four vertebras. Hence it is established that Bhagirath caused the injury with full intention to commit murder of Tulsiram.

12. So far as other two accused persons viz. Kalu and Gangaram are concerned, they assaulted the deceased by means of stick and hence, they have been convicted with the aid of Section 34 of the IPC. Learned Sessions Judge has not found the offences u/s. 147, 148 and 149 proved as the common object of that assembly to commit offence was missing. The apex court in the case of Bolineedi Venkataramaiah V/s. State of Andhra Pradesh : AIR 1994 SC 76 has held that when a group of members chased the deceased and inflicted several injuries as a result of which the victim died, all of them can be held guilty of murder even if any of them did not actually participate in the act. In the case of State of Karnataka V/s. Chikkahottappa : AIR 2008 SC 2692, the apex Court has held that the 'common object' is different from 'common intention' as it does not require a prior consent and a common meeting of minds before the attack. The common object of an unlawful assembly has to be inferred from the facts and circumstances disclosed. When seven persons were charged for the

offence punishable u/s. 148/149 and three of them were convicted the remaining persons cannot be convicted u/s. 148 and 149 of the IPC.

13. In the case of Jaswant Singh V/s. State of Haryana : AIR 2000 SC 1833 and in the case of Jivanlal & others V/s. State of M.P. : (1997) 9 SCC 119, the apex Court has held that when the accused persons are charged with the aid of Section 149 of the IPC, their conviction with the aid of Section 34 of the IPC is not illegal. If no prejudice is caused to the accused for not forming a distinct charge with the aid of section 34 of the IPC. In order to implicate u/s. 34, there has to be a common intention in doing a criminal act by several persons i.e. sharing common intention upon being present at the place of occurrence. Need of an overt act of each is immaterial when the common intention is there. The common intention is a state of mind of an accused which can be inferred objectively from his conduct displayed in the cause of commission of the crime.

14. As per evidence of Kanchanbai (P.W.1), the moment her husband Tulsiram reached his agricultural field, there was no discussion or hot talks or scuffle, straight way the accused came there and started assaulting him. Therefore, there was a common intention between the accused. All the accused came there with arms and sticks in their hands. One day earlier, the accused came to the house of complainant with an intention to assault the deceased, but he did not come out of his house and after throwing the stones and banging the door they returned. Thereafter, in the next day morning, they all came to the field to commit the offence with a common intention. Therefore, other two accused viz. Kalu and Gangaram have rightly been convicted by the learned Sessions Judge u/s. 302/34 of the IPC despite their acquittal u/s. 148/149 of the IPC. We do not find any ground to interfere in this appeal.

Accordingly, this appeal fails and is hereby dismissed.

                ( VIVEK RUSIA )                          (SHAILENDRA SHUKLA)
                    JUDGE.                                      JUDGE.
Alok/-
         Digitally signed by ALOK GARGAV
         Date: 2021.08.23 15:09:55 +05'30'