Fatya Barela & Ors. vs State Of M.P.
2021 Latest Caselaw 6502 MP

-1-                                                   CRA NO.1433/2008

 HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
DIVISION BENCH: HON'BLE SHRI JUSTICE VIVEK RUSIA
   & HON'BLE SHRI JUSTICE SHAILENDRA SHUKLA

                 CRIMINAL APPEAL No.1433/2008

Appellants:                1. Fatya s/o Bila Barela
(Accused in jail)          Age 35 years, occupation Labour

                           2.Bila s/o Raimal Barela
                           Age 60 years

                           3.Suba s/o Bila Barela
                           Age 32 years
                           All R/o village Vervada
                           (Jiratfalya)
                           P.S Pati, Dist. Barwani M.P

                                    Vs.

Respondent:                State of M.P trough P.S
                           Pati, Dist. Barwani



             Smt.Sharmila Sharma, Advocate for the appellant.
             Smt.Mamta Shandilya, GA for the State.


                           JUDGMENT

(Delivered on 08.10.2021) Per Vivek Rusia, J:

This appeal is arising out of the judgment dated 20.10.08 passed by Ist A.S.J, Badwani in S.T.No.28/08 whereby out of 8 accused, present 3 appellants have been convicted u/s 302/34 of the IPC and sentenced to undergo life imprisonment with a fine of Rs.1000-1000/-, in default of payment of fine, further 3-3 months R.I.

2. Facts of the case in short are as under:

On 21.12.2007 near about 6 hrs. complainant Narsingh, Rajaram and Lacha (deceased) were going on a motorcycle to attend the ceremony in the house of Dongariya Mankar. When they were crossing the house of Fatya (A-1) he gave a signal and stopped the motorcycle.

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Fatya (A-1) took Lacha to his agricultural field to show the wheat crop. After reaching the agricultural field Fatya (A-1) took out the Dharia (sharped edged) and gave a blow on the head of Lacha: the deceased. Lacha saved himself by raising his hands but the same got amputated. Thereafter accused Bila(A-2) came there with an axe and caused the injury on his waist and Suba(A-3) caused the injury on the right leg. Thereafter accused Jahadiya and Kashiram armed with Deng, accused Jugla, Romalia and Bhaga armed with stone in their hands surrounded and assaulted him. Jugla, Kashiram and Romalia rushed towards Lacha to save him but Jugla and Kashiram threatened and told to leave the place. The incident was witnessed by Karamsingh ,Narsingh narrated the incident to Suvalal (brother of the deceased ). On the basis of the report given by Narsingh, offence u/s 302/34 & 506 IPC was registered at crime no.139/2007 against all 8 accused and the investigation was set into motion. The police reached the scene of the crime and found the dead body of Lacha and blood spread on the field . The safina form was drawn and Naksha Panchayatnama was prepared in presence of 5 witnesses. The dead body was sent for postmortem. The statements of witnesses were recorded. The crime details form was filled and all 8 accused were arrested. After completing the investigation police filed the charge sheet. The trial was committed to the trial court and framed the charges as under:

      Fatya              302/149 & 148 IPC
      Bila               302/149 & 148 IPC
      Suba               302/149 & 148 IPC
      Jugla              302/149, 147 & 506(2) IPC
      Jahadiya           302/149, 148 IPC
      Rumaliya           302/149, 147 & 506(2) IPC
      Bhaga              302/149, 147 IPC
      Kashiram           302/149, 148 & 506(2) IPC
 -3-                                                 CRA NO.1433/2008

3. All the accused denied the charges and pleaded for trial. In order to prove the aforesaid charges, the prosecution has examined 13 witnesses as PW/1 to PW/13 and got exhibited 30 documents as Ex.P/1 to P/30. In defence the appellants did not examine any witnesses but exhibited the statement of Narsingh, Paramsingh and Sildar as Ex.D/1 to D/3. After evaluating the evidence came on record, learned trial court has acquitted Jugla, Jahadiya, Rumaliya, Bhaga & Kashiram u/s 302/149, 147, 148 & 506(2) IPC but convicted the appellants u/s 302/34 IPC and sentenced as stated above, hence this appeal before this Court.

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

4. The nature of injuries sustained and cause of death of the deceased Lacha on the spot are undisputed facts . The injuries are mentioned in the Naksha Panchayatnama and since the death was prima facie found homicidal, therefore, the dead body was sent for autopsy. Dr.C.S.Roshliya conducted the autopsy and submitted the report Ex.P/11. As per the opinion of the doctor, Lacha died due to shock and haemorrhage caused by injuries. The injuries are antemortem in nature caused within 24 hours. The injuries are described in the autopsy report allegedly caused by the number of different sharp objects. There is no challenge to the findings recorded by the trial court in respect of the injuries and cause of death, hence there is no need to re-appreciate the same, in this criminal appeal hence affirmed.

The only issue which requires our consideration in this appeal is whether the appellants have rightly been convicted under section 302/34 IPC or not? There is no cross-appeal by the State challenging the acquittal of the remaining 5 accused.

5. In order to prove the charges, the prosecution has examined Narsingh (P.W.-1 )who lodged an FIR. According to him, he was going along with Rajaram and deceased on the motorcycle. Fatya (A-

1) stopped them and took Lachu to the agricultural field for showing

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the crops. Thereafter in para-2 he has described the injuries caused by the appellants and others. He and Rajaram tried to save him but they were asked to get out from the spot. Thereafter he went to the house of Suvalal, brother of Lacha and narrated the entire incident. The motorcycle of Fatya was also found on the spot. We have no reason to disbelieve the testimony of these eyewitness. He was cross-examined at length and nothing has come out to disbelieve his testimony. There is corroboration of the injuries described by nursing from the medical evidence.

6. The prosecution has examined Rajaram as PW/2 but he has turned hostile. He has identified the accused persons in the court. He has also admitted that he was going with Lacha and Narsingh to attend the function in the house of Dongariya. Thereafter he went to the spot and found the dead body of Lacha. To that extent his evidence is admissible. Karamsingh came to the spot after starting the fight and saw that Fatya (A-1) has cut the hand of Lacha by using Faliya . Thereafter Bila (A-2)and Suba (A-3) have assaulted him by means of the axe, therefore, he is fully supporting the case of prosecution along with Narsingh (PW/1). The prosecution has also examined Raju as PW/5 who has seen the dead body of Lacha, Dhariya in the hand of Fatya(A-1), axe in the hand of Bila (A-2)and Suba(A-3) and thereafter he has been declared hostile. Dongariya PW/6 has turned hostile. Sildar PW/7, a hearsay witness to whom Narsingh P.W.-1 has narrated the entire incident. Champalal has been examined as PW/8 to establish the recovery of Daria from Fatya. Gulab Singh PW/12 is a seizure witness and he admitted that in his presence the accused persons were arrested and he signed all the arrest memos. Fattusingh PW/13 has denied all the suggestions given to him by the defence witnesses. We have gone through the entire deposition as mentioned above and we are of the considered opinion that the prosecution has been able to prove the case beyond a reasonable doubt. Lacha (A-1) was assaulted by the appellants by means of Daria and axe due to which he died on the spot. The agricultural field where this offence was committed

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belongs to Fatya (A-1). The presence of these appellants and the recovery of arms from them are supporting the case of the prosecution.

7. Learned counsel has argued that the prosecution has failed to prove the motive behind the crime. In every case, the motive is not required to be established when there is direct evidence about the commission of the crime. In this case, the dead body of Lacha was found in the agricultural field of Fatya (A-1). As many as 5 eyewitnesses have deposed that they have seen the entire incident. The recovery of arms from the present appellants have been proved, then in absence of the motive the prosecution case cannot be made doubtful.

8. Learned counsel for the appellants submits that it is a case of sudden provocation and committed in the heat of passion, therefore, the appellants are at the most liable to be convicted u/s 304 Part-I IPC instead of 302/34 IPC. We are not able to accept the aforesaid submission because Lacha was going along with Narsingh and Rajaram to attend the function. He was stopped by Fatya (A-1) and taken to the agricultural field where he gave a blow by Dhariya with full force which has amputated the hand of the deceased. Thereafter the other two appellants (A-2&3) joined him and caused multiple injuries using the axe. The other accused have assaulted him by means of sticks and stones. They attacked the deceased with pre-planning to kill him, hence it is not a case of commission of the offence in sudden provocation or without any pre-planning, hence the above prayer is rejected.

9. In view of the above discussion, the appeal fails and is hereby dismissed. Let the trial court record be returned with one copy of this judgment.

            (VIVEK RUSIA)                      (SHAILENDRA SHUKLA)
               JUDGE                                  JUDGE

hk/        Digitally signed by HARI
           KUMAR C G NAIR
           Date: 2021.10.08 18:24:46
           +05'30'