Rameshwar and ors. Vs. State of Madhya Pradesh - Court Judgment

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- - (13) two linear abrasions 1/2 moon like in shape on the left gluteal region (4' in length). (14) abrasion 3' x 2' on lateral malleums of rt. 9. these three appellants armed with deadly weapons like dharias were hidden together behind the shrubs, laying in wait for their target harisingh. p/1) as well as medical report (ex. it is found to be dependable. xx xx xx 11. the enmity was amply proved, so was the strong motive. the conclusion is on firm foundation and is fully supported by--(a) reliable eye-witness account given by pw-1 and pw-2, (b) conduct of pw-1 in narrating incident to pw-3, (c) prompt lodgement of fir and un-delayed compliance of section 157 of the cr. p/23, the report of chemical examiner, (f) existence of strong motive, (g) assault with common intention as indicated by joint attack and 'togetherness' and 'manner' of assault, and (h) cogent and convincing facts and circumstances incapable of being dislodged or demolished.a.r. tiwari, j.1. this appeal is directed against the judgment rendered by the second addl. sessions judge, dhar in sessions trial no. 89/85 on 31-1-1986 there by convicting each of the appellants under section 302/34 of the indian penal code and sentencing to suffer imprisonment for life.2. briefly stated, the facts at the trial were that kanhaiyalal, the younger brother of the appellant rameshwar was murdered. this had led to a criminal prosecution. the sessions court in this case had found dulesingh (pw 1), ramkishan (pw2) and harisingh (the deceased in the present case) guilty of the offence punishable under section 302/34 of the indian penal code and convicted each of the aforesaid accused persons to suffer imprisonment for life. on appeal, the execution of sentence was suspended. they were ordered to be released on bail. the appellant rameshwar wanted to take revenge. on 14-3-1985, the deceaesd harisingh was bringing wheat in his bullock-cart from his field. his brother dulesingh (pw 1) was following the bullock-cart on foot. on 14-3-85 at 2.00 p.m. the appellants armed with dharia and gun met the deceased harisingh and pw 1 dulesingh. they mounted attack on the deceased harisingh. harisingh tried to escape, but was surrounded by the appellants. the appellants rameshwar, kailash and mansingh attacked harisingh who fell down on the ground. these three appellants continued the attack and thereafter, fled away. ram kishan (pw2) witnessed this incident. harisingh succumbed to the injuries on the spot. rameshwar went to the police station to lodge the report. the report, however, was lodged by dulesingh and a case under section 302/34 of the indian penal code was registered. spot maps (ex. p./3 and ex. p/8) were drawn. the postmortem was conducted and the postmortem report is ex. p/7. the weapons of assault were seized and sent to chemical examiner for opinion. the report is ex. p/ 23. after completion of investigation, the challan was filed. the appellants were charged under section 302/34 of the indian penal code to which they pleaded not guilty. on trial, they were convicted and sentenced as above.3. we have heard shri jaisingh, learned counsel for the appellants and shri g. s. chauhan, learned dy. government advocate for the state-respondent and have perused the record.4. shri jaisingh has submitted that the conclusion reached by the trial court is not sustainable in law and that the appellants have been wrongly held guilty. according to him, there is no evidence even with regard to section 34 of the indian penal code. he, therefore, submitted that the findings recorded by the trial court are not supportable from the evidence adduced by the prosecution. he, therefore, urged that the appellants be acquitted of the charges levelled against them. on the other hand, shri chauhan submitted that the conclusion reached by the trial court is on firm foundation and there is absolutely no basis to take a different view of the matter. he submitted that the contentions raised by the learned counsel for the appellants are non-meritorious. he, thus, submitted that the appeal deserves to be dismissed.5. the point for determination is whether this appeal deserves to be allowed ?6. it is not disputed that the deceased died a homicidal death due to injuries sustained by him. he received as many as 17 injuries (ex. p/7) as noted below. the cause of death is as stated hereunder--(1) incised wound 5' x 2' x bone deep on left hand dorsum, all muscles bones and tenders are cut and mud particles were seen over it.(2) incised wound cum-crushed injury on the rt. fore-arm 6' x 3' x bone-deep both radius and ulna bones are cut, hand is hanging with skin tags cut, at the level of wrist joint. hand bones (carpal) are crushed. the whole wound is full of mud and dust, clotted blood.(3) incised wound 1' x 1/2' x 1' on the anterior and outer border (torn) upper arm.(4) incised wound 8' x 2' x brain matter deep on the right parieto occipital region, placed obliquely. the bone is cut and broken into pieces and brain matter is seen coming out of the wound.(5) incised wound on rt. side neck upper border parieto occipital region to midline of rt. side of neck. all vessels muscles are cut. it is 6' x 2' bone deep and has encircled the neck region.(6) incised wound 3' x 1' x bone deep on the left scapular region back.(7) incised wound 2' x 1/2' x bone deep on the upper border of left scapula placed vertically.(8) incised wound 5 1/2' x 1 1/2' x bone deep on the left side face extending up to left ear. lygomatic and mandibular bone is cut and bones are exposed.(9) incised wound 1' x 1/2' x muscle deep on the rt. side of back of shoulder joint.(10) abrasion 4' x 2' on the rt. elbow --back.(11) abrasion 3' x 1' on the outer border of rt. upper arm.(12) abrasion l' x 1' on the upper border of rt. shoulder joint.(13) two linear abrasions 1/2 moon like in shape on the left gluteal region (4' in length).(14) abrasion 3' x 2' on lateral malleums of rt. ankle joint.(15) abrasion 2' x 1' on left scrotal region.(16) abrasion 3' x 1' on the lateral border of left thigh.(17) abrasion 1' x 1' on the rt. side neck just upper 1/3 rt. to mid line.opinion : the cause of death is shock and haemorrhage following injury to vital organ brain (head injury). time since death is 18-24 hours.7. the motive is clear in the case. kanhaiyalal, the brother of the appellant rameshwar was murdered and sessions court had convicted and sentenced harisingh (deceased), dulesingh (pw 1) ram kishan (pw 2) and balwant singh (para 6 of pw 1). ram kishan, harisingh and dulesingh were released on bail (para 8 of pw 2). this, furnished the occasion to hatch the evil design to pounce as soon as available and to liquidate harisingh, the supposed principal culprit in the earlier murder case, as and when occasion permitted.8. as noted in the trial court judgment, the eye-witnesses to the incident were only pw 1 dulesingh and pw 2 ram kishan. the trial court had kept in mind the principal that careful and cautious scrutiny of evidence was essential in the face of the relationship. we have also read their statements, and agreeing with the trial court, find that the same are creditworthy so far as the involvement of the three appellants rameshwar, mansingh and kailash, was concerned.9. these three appellants armed with deadly weapons like dharias were hidden together behind the shrubs, laying in wait for their target harisingh. on sighting him, they mounted attack on him brutally causing as many as 17 injuries on almost all parts of the body. nine injuries were incised wounds. the intention does not lie darkened and is very much visible. these three appellants were rightly found to have acted with one mind. they did have the common intention sequel to murder of kanhaiyalal, the brother of rameshwar as was urged before us. the incondite activity is simply irremissible.10. there was no reason to disbelieve the natural testimony of pw 1 and pw 2. moreover, they were also corroborated by fir (ex. p/1) as well as medical report (ex. p/7). the counsel for the appellants was thus, unable to point out any infirmity either in conclusion or in approach. the evidence is thus, cogent and convincing. it is found to be dependable. true, the main evidence was furnished by the interested witnesses. pw 1 dulesingh is brother of the deceased and pw 2 is the nephew of the deceased (para 1 of pw 2 and para 1 of pw 1). but such testimony does not become at once discardable merely on the ground of relationship and is only required to be subjected to careful scrutiny. the conclusion based on it is not rendered deciduous. we have done the reappraisal in order to satisfy ourselves. in budhwa v. state of m. p., air 1991 sc 4 : (1990 cri lj 2597) it is held as under :--held that the conviction of the appellant-accused was principally based on the evidence of the deceased's mother and sister. though their evidence is not to be discarded as interested, the necessary caution has to be observed in accepting the evidence of these witnesses. it is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. the courts have, therefore, to be very careful and if after a close scrutiny of the evidence, the reasonable doubt arises with regard to the participation of any of those who have been roped in, the court would be obliged to give the benefit of doubt to them. xx xx xx11. the enmity was amply proved, so was the strong motive. in such cases, however, there is general tendency to rope in as many persons as possible the courts have, therefore, to be very careful in scanning the evidence. in that pursuit, we desired to examine the evidence to deprehend whether any one of the appellants was lavishly roped in.12. applying the aforesaid test, we proceeded to examine whether the appellant girdhari, brother of appellants mansingh and kailash was rightly involved. in ex. p/1, (fir) the allegation about him was as under:--^^fxj/kkjh fi- lq[kjke cykbz tkeunk dk cunqdrkurs gos fn[kk ^^----** fxj/kkjh fpyyk;k fd ekj mkyks bl nq'eu dkscpus ugh ikos** pw-1 dulesingh in his statement gives slightly twisted version when he said that girdhari ran stretching the gun and on this the deceased jumped from the bullock-cart and ran away. pw-2 ramkishan stated that he had seen girdhari standing with the gun. pw-3 ramkishan s/o kalusingh was the person to whom the incident was promptly narrated by pw-1. and all that pw-3 spoke was that girdhari had the gun. pw-3 was the person who had accompanied pw-1 right up to the police station for lodging the report. it was thus, manifest that no role as such was attributed to girdhari at least till that stage and the allegations of stretching, chasing and exhortation have been falsely introduced so as to establish this complicity and active participation in the alleged crime. ex. p/6 the requisition, did not speak about the gun as such. no injuries by gun were found on the person of the deceased. girdhari was arrested on 17-3-85 (ex. p/19) i.e. after three days from the date of incident. the gun (article 7) and licence (article 8) were seized on 17-3-85 (exs. p/17 and p/18). it seemed rather unnatural and unbelievable that three appellants would conceal themselves so as to induce the victim to continue to proceed safely and girdhari would opt to stand openly with gun-exposing himself to view by others.13. as regards the incident, there is no idependent witness examined in the case. there was no corroboration about the appellant girdhari from medical evidence. we thus, entertain considerable doubt about his presence and participation. in anvaruddin v. shakoor, air 1990 sc 1242 : (1990 cri lj 1269), it is observed that--the direct testimony of witnesses, whose evidence is otherwise consistent, should not ordinarily be rejected on the ground that they are partisan witnesses unless the surrounding circumstances discredit their version. ordinarily, close relatives of the deceased would not allow the real culprits to escape. the possibility of their implicating others with the real offenders must, however, be kept in mind. the acquittal recorded by the high court by brushing aside direct testimony without marshalling the evidence was improper. xx xx xx14. in criminal trial, burden of proof was always on the prosecution and benefit of reasonable doubt belonged to the accused. in vijayee singh v. state of u. p., air 1990 sc 1459 : (1990 cri lj 1510) it is pointed out that (at page 1467 of air):--the phrase 'burden of proof' is not defined in the act. in respect of crimimal cases, it is an accepted principle of criminal jurisprudence that the burden is always on the prosecution and never shifts. this flows from the cardinal principle that the accused is presumed to be innocent unless proved guilty by the prosecution and the accused is entitled to the benefit of every reasonable doubt. xx xx xx15. in the ultimate analysis, we find on scrutiny that the findings as regards the three appellants named above, are apparently affirmable. the conclusion is on firm foundation and is fully supported by--(a) reliable eye-witness account given by pw-1 and pw-2,(b) conduct of pw-1 in narrating incident to pw-3,(c) prompt lodgement of fir and un-delayed compliance of section 157 of the cr. p.c. (para 22 of the judgment),(d) medical evidence corroborating the injuries by dharias.(e) discoveries and seizures (exs. p/10 to p/13) of dharias and presence of human blood as proved by ex. p/23, the report of chemical examiner,(f) existence of strong motive,(g) assault with common intention as indicated by joint attack and 'togetherness' and 'manner' of assault, and(h) cogent and convincing facts and circumstances incapable of being dislodged or demolished.16. we have thus, no hesitation in affirming the finding of the trial court as regards the aforesaid three appellants. the submissions made by the learned counsel are thus, found to be untenable and non-meritorious. we thus repel the same.17. as regards the appellant girdhari we, however, find that he seems to have been wrathfully roped in and thus, deserves to be given at least benefit of doubt in the facts and circumstances of the case.18. consequently, feeling obliged to give benefit of doubt, we allow this appeal so far as the appellant girdhari is concerned and set aside his conviction and sentence as recorded under section 302/34 of the indian penal code and acquit him of the charge. he is reported to be on bail pursuant to this court's order dated 5-3-86. he need not surrender. his bail-bonds, therefore, shall stand cancelled. we, however, dismiss the appeal of the remaining three appellants (rameshwar, mansingh and kailash) and maintain their conviction as also the sentence of imprisonment for life as awarded to each of them under section 302/34 of the indian penal code.19. this appeal thus succeeds as regards girdhari and fails as regards rameshwar, mansingh and kailash who shall serve out the sentence as imposed on them by the trial court. subject to renewal of licence, gun and licence seized in the case shall be returned to appellant girdhari.20. let the record of the court below go back along with a copy of this judgment.