(1) Cr.Appeal No. 265/03
HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SHRI JUSTICE T.K.KAUSHAL
CRIMINAL APPEAL NO. 265/2003
APPELLANTS: 1. Umadutt S/o Bholeram, aged about 26
years,
2. Bindu @ Arvind S/o Bholeram, aged about
21 years,
3. Amit S/o Om Prakash Dubey, aged about
19 years,
4. Smt. Vishakha Bai W/o Om Prakash
Dubey, aged about 40 years
All R/o Mali Mohalla, Shahgunj, District
Sehore (M.P.)
Versus
RESPONDENT: State of Madhya Pradesh through Police
Station, Shahgunj, District Sehore (M.P.)
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For the Appellants : Shri Amod Gupta, Advocate.
For the respondent/State : Shri Prakash Gupta, Panel Lawyer.
Date of hearing : 20/01/2011
Date of judgment: 27/01/2011
(J U D G M E N T )
Per: Rakesh Saksena; J,
Appellants have filed this appeal against the judgment dated
20.1.2003, passed by Additional Sessions Judge, Nasrullanganj, District
Sehore in Sessions Trial No. 191/1999, convicting them under Sections
302/149, 147, 148, 324/149 and 323/149 of the Indian Penal Code and
sentencing them to imprisonment for life with fine of Rs. 500/-, rigorous
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imprisonment for one year, rigorous imprisonment for one year, rigorous
imprisonment for one year and rigorous imprisonment for one year on
each count respectively.
2) Briefly stated, facts of the prosecution case are that there had
occurred a dispute on 24.7.1999 between Kusum Dubey, the deceased
with family members of her neighbour Om Prakash Dubey for her
plucking `mehndi leaves’, which however, was pacified. On 27.7.1999,
when Ram Kishore Dubey, husband of Smt. Kusum Dubey was going to
market, as soon as he reached infront of the house of neighbour
Bholaram, accused persons six in number confronted him. They were
armed with Farsa, Luhangi, Iron Rod, Gidia and Lathis. They challenged
him to settle the score and in a concert attacked him with their weapons.
Hearing shrieks of Ramkishore Dubey, Kusum Dubey rushed to the spot
and tried to rescue her husband, but they assaulted her also causing
injuries to her all over the body. Thereafter, when Nirmal, Naveen and
Jyoti, respectively sons and daughter of Ramkishore Dubey went to the
spot and tried to save their parents, they were also assaulted by the
accused persons. Hearing uproar, Ram Bharose and Mahesh also
reached at the spot. Ramkishore and Kusum succumbed to their injuries
at the spot. Nirmal (PW3) along with his Uncle Ram Bharose and Jyoti
went to police station Shahgunj and lodged the report of the incident.
Vivek Asthana (PW9), Station Officer recorded the first information report
Ex. P/2. He went to the spot and recorded merg intimation Ex. P/24 and
prepared the spot map Ex. P/3. After conducting inquest proceedings
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and recording memorandums Ex. P/4 and Ex. P/5, dead bodies of Ram
Kishore and Kusum Dubey were sent to Community Health Centre,
Budhni. Injured Nirmal, Naveen and Jyoti were also sent for medical
examination and treatment.
3) On 27.7.1999, Dr. R.K.Bhatnagar (PW4) and Dr. Sandhya Rajgir
(PW10) conducted the postmortem examination of the dead bodies and
vide their postmortem reports Ex. P/4 and Ex. P/5 opined that the
deceased persons had died due to homicidal injuries and the injuries
found on their bodies were sufficient in the ordinary course of nature to
cause their death.
4) On 27.7.1999, Dr. V. Deshmukh (PW8) examined the injuries of
Nirmal, Jyoti and Naveen. Their M.L.C. reports are Ex. P/21, Ex. P/22
and Ex. P/23 respectively. In the X-ray report, humerus bone of the
hand of Naveen was also found fractured.
5) On 28.7.1999, all the accused persons were arrested and on their
information in the presence of Mansoor Ahmed (PW7), weapons used in
the commission of the offence were recovered and seized by
Investigating Officer Vivek Asthana (PW9). Clothes of accused persons
were also seized. The seized articles were sent to F.S.L. for examination.
After completion of the investigation, charge sheet was filed and the case
was then committed for trial.
6) During trial, as appeared from the cross examination of
prosecution witnesses, defence of the appellants was that some unknown
persons caused the death of deceased persons in the night. All the
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accused persons abjured their guilt and pleaded false implication.
Accused Sumit being juvenile, was sent for enquiry to Juvenile Court,
Bhopal.
7) Prosecution examined 10 witnesses to substantiate its case.
Mahesh (PW2), Nirmal (PW3), Jyoti (PW5) and Naveen (PW6) were
examined as eye witnesses of the case. Dr. R.K.Bhatnagar (PW4) and
Dr. Sandhya Rajgir (PW10) were examined to prove the injuries found on
the body of deceased persons and Dr. V.V. Deshmukh (PW8) was
examined to prove the injuries of injured persons.
8) Learned Additional Sessions Judge after trial and upon appreciation
of the evidence adduced in the case, convicted and sentenced the
appellants as aforesaid by the impugned judgment, which has been
challenged in this appeal.
9) Appellants Om Prakash and Bholaram died during pendency of the
present appeal, therefore, their appeal stood abated. Their names were
deleted from the cause title.
10) It was not disputed by learned counsel for the appellants that
deceased Ram Kishore Dubey and Kusum Dubey died of homicidal
injuries. It is also reflected from the evidence of Dr. R.K.Bhatnagar
(PW4) and Dr. Sandhya Rajgir (PW10) that on 27.7.1999 they conducted
the postmortem examination of dead bodies of Kusum Dubey and
Ramkishore Dubey in Community Health Centre, Budhni. They found
following injuries on the bodies of Smt. Kusum Dubey and Ram Kishore
Dubey:
(5) Cr.Appeal No. 265/03 Injuries of Smt. Kusum Dubey:- (i) Perforated lacerated wound 2.7 cm x 0.5 cm over lower lip on left side, (ii) lacerated wound 2 cm x 0.9 cm x bonedeep mandibular region on left side,
(iii) fracture of shaft of mandible on left side. Broken
ends are visible through injury no.2,
(iv) contusion 8 cm x 2.5 cm over left side of upper
arm,
(v) lacerated wound 11 x1 x bone deep over occipital
region,
(vi) lacerated wound 8 cm x 1 cm x bone deep left
side of skull in parietal region,
(vii) lacerated wound 2.5 cm x 0.5 cm bone deep on
left occipital region,
(viii) lacerated wound 5 cm x 1cm x bone deep over
occipital region,
(ix) lacerated wound 2.9 cm x1 cm x bone deep over
left side of skull in occipital region,
(x) contusion 8 cm x 1.5 cm over back on left side
below inferior angle to scapula,
(xi) contusion 7 cm x 1.5 cm over left side of back
lumber region,
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(xii) contusion 7 cm x 1.5 cm over left scapular
region,
(xiii) lacerated wound 1.5 cm x 0.5 cm x 0.5 cm on
left forearm above wrist,
(xiv) contusion 5 cm x 1.5 cm over sup. surface of left
shoulder,
(xv) contusion 11 cm x 2cm over back on right side
scapula,
(xvi) contusion 14 cm x 2cm over back on right side
just below inferior angle of scapula,
(xvii) lacerated wound 1 cm x 0.5 cm x 0.5 cm over
right leg,
(xviii) lacerated wound 1.5 cm. x 0.5 cm x 0.5 cm. over
medial surface of right tibia and
(xix) lacerated wound 1.5 cm x 0.5 cm x 0.5 cm over
left leg.
Injuries of Ramkishore Dubey:-
(i) Compound fracture of both bones of left leg (tibia
and fibula), visible through lacerated wound which is 8
cm x 8 cm x bone deep. Fracture of shaft of bones,
(ii) fracture of both bones of left forearm above
wrist,
(iii) fracture of shafts of both bones of right forearm
10 cm above wrist where there is contusion of 8 cm x 3
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cm present transversly,
(iv) contusion 12 cm x 2.5 cm over lateral surface of
left upper arm,
(v) contusions 8 in number over back on right side
of scapular region in different directions. Size varies
from 10 cm x 3 cm to 7 cm x3 cm,
(vi) lacerated wound 7 cm x 0.5 cm bone deep over
right frontal region,
(vii) lacerated wound 9 cm x 0.5 cm x bone deep over
right temporal region,
(viii) lacerated wound 6 cm x 0.5 cm x bone deep over
right parietal region,
(ix) lacerated wound 1.5 cm x 0.5 cm x 0.5 cm over
right zygomatic region extending towards right eye,
(x) contusion 1 cm x 3 cm over anterior surface of
right thigh,
(xi) lacerated wound 1.5 cm x 1 cm x 1 cm over right
upper arm dorsal surface,
(xii) lacerated wound 1.5 cm x 1 cm x 1 cm over right
upper arm 1 cm above injury no.11,
(xiii) lacerated wound 1 cm x 1 cm x 1 cm over right
upper arm above injury no. 12,
(xiv) lacerated wound 2 cm x 0.3 cm x 0.9 cm over
bridge of nose transverse with fracture of nasal bones
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visible through wound,
(xv) contusions 13 in number present over left hip,
each measuring 10 cm x 3 cm parallel,
(xvi) lacerated wound 1 cm x 0.5 cm x 0.5 cm on right
tibia above ankle joint,
(xvii) lacerated wound 3 cm x 0.5 cm x bone deep over
chin,
(xviii) contusion 8 cm x 8cm over chest on right side
and
(xix) fracture of shafts of ribs 3rd, 4th, 5th in mid
clavicular region.
In the opinion of doctors, the cause of death of Smt. Kusum
Dubey and Ramkishore Dubey was cardio-respiratory failure due to
severe hypovolumic shock, due to massive haemorhage from multiple
lacerated wounds present on the persons of deceased followed by coma
and death. All the injuries were ante mortem in nature and were caused
due to forceful impacts with hard and blunt weapons. They were
homicidal in nature.
11) Apart from the above evidence, from the evidence of Nirmal
(PW3), Mahesh (PW2), Jyoti (PW5) and Naveen (PW6), it is established
that injuries on the body of deceased persons were caused by the
accused persons and as a result of injuries they had died. Investigating
Officer Vivek Asthana (PW9) had conducted the inquest proceedings and
recorded the injuries found on the body of deceased persons in inquest
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memo Ex. P/3 and Ex. P/4. He also recorded first informaton report Ex.
P/2 and merg report Ex. P/24 in that regard. It was thus clearly
established that deceased Ramkishore Dubey and Kusum Dubey died of
injuries sustained by them and that their death was homicidal in nature.
12) Learned counsel for the appellants, however, submitted that the
trial Court committed error in placing reliance on the evidence of eye
witnesses, who were close relatives and family members of the deceased.
No independent witness was adduced in the case. He also submitted
that the incident had occurred suddenly, therefore, it could not be held
that the appellants had any motive or intention to commit murder of the
deceased persons. As such, their conviction under Section 302/149 of
the Indian Penal Code was not justified. Learned counsel for the State,
on the other hand, justified and supported the impugned judgment of
conviction and sentence of appellants.
13) We have heard the learned counsel for the parties.
14) We have carefully considered the evidence, circumstances and the
probabilities of the case. We have also gone through the judgment
under appeal with the help of both the learned counsel for the parties.
15) It is true that no independent witness has been examined in the
case, but merely on that count the evidence of relative witnesses cannot
be discarded altogether in the absence of very cogent reason. It has
been held by the Apex Court in Rajesh Kumar Vs. State of H.P.- AIR
2009 SC 1 that there is no proposition in law that relatives are to be
treated as untruthful witnesses. On the contrary, reason has to be shown
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when a plea of partialty is raised to show that the witnesses had reason
to shield actual culprit and falsely implicate the accused. In the instant
case, it is significant to note that Nirmal (PW3), Naveen (PW6) and Jyoti
(PW5) are the sons and daughter of deceased persons and their
presence at the place of occurrence stands established from the injuries
found on their bodies which were sustained by them in the same
incident.
16) Nirmal (PW3), the son of deceased deposed that he knew all the
accused persons. At about 7 O’ clock in the morning, while he was
studying, his father Ramkishore left for the market. Hearing hue and cry,
his mother went out of the house. He saw all the accused persons
standing there with weapons. Om Prakash (dead) had Farsa, Uma Dutt
had Luhanji, Bindu had Iron Rod, Amit had Gidia, Sumit (juvenile) had
Lathi and Vishakha Bai had Lathi. All these persons assaulted to his
father and mother. Both of them suffered injuries on their hands and
other parts of the body. When he, his brother Naveen and Sister Jyoti
went there to rescue them, they also assaulted them. Umadutt with his
Luhangi and Bindu with Iron Rod assaulted him. Bholaram assaulted his
sister. He, Naveen and Jyoti suffered injuries. His Uncles Mahesh Prasad
and Rambharose also came at the spot. His mother and father died at
the spot. He along with his uncle and sister went to police station and
lodged the report Ex. P/2.
17) Evidence of Nirmal (PW3) finds corroboration from the evidence of
Jyoti (PW5), Naveen (PW6) and Mahesh (PW2). Reiterating the same
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story, Jyoti (PW5) and Naveen (PW6) deposed that in the morning at
about 7 A.M., when their father was going to market Om Prakash along
with other accused persons came near their house armed with weapons
and assaulted their father. Assailants were armed with Farsa, Luhangi,
Iron Rod, Lathi and Gidia. Vishakha was also armed with a Lathi. When
their mother went to save their father, all of them assaulted to her also.
Jyoti deposed that when she, Nirmal and Naveen tried to save their
parents, they were also assaulted. Bholaram dealt a Lathi blow on her
leg. Om Prakash with Farsa, Umdadutt with Luhangi, Bindu with Iron
Rod and Vishakha by Lathi assaulted to Naveen. Bholaram also assaulted
to Nirmal. Her parents died at the spot. Hearing hue and cry, her uncles
Rambharose and Mahesh also reached at the spot.
18) Mahesh Prasad (PW2) deposed that he knew all the accused
persons. In the morning when he heard noise of some quarrel, he went
out of his house and saw Ramkioshore Dubey lying on the ground and
accused persons assaulting him with Lathi, Farsa, Luhangi, etc. Some of
the accused persons were also beating Kusum Dubey, the wife of
Ramkioshore Dubey and Naveen Dubey. Victims were smeared with
blood. When Jyoti and Nirmal came out of their house to save them,
they were also assaulted.
19) All the aforesaid eye witnesses were subjected to a lengthy cross
examination, but they remained firm and nothing could be elicited out
from their evidence. The discrapencies and contradictions in their
evidence pointed out by learned counsel for the appellants were not of
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substantial nature and were merely the matter of details. Presence of
Nirmal (PW3), Jyoti (PW5) and Naveen (PW6) is further reinforced by the
injuries found on their bodies.
20) Dr. V.V.Deshmukh (PW8) examined the injuries of Nirmal, Jyoti
and Naveen. He found following injuries on their bodies:
Injuries of Nirmal:-
(i) Swelling 2" x 2" on left side back,
(ii) swelling 2" x 3" on right hand elbow,
(iii) swelling 1″ x 1 1/2″ on left hand elbow,
(iv) swelling 2″ x 1″ above left ear and
(v) swelling 2″ x 2″ on right knee.
All the injuries were caused by hard and blunt object. They were
simple in nature. His injury report is Ex. P/21.
Injuries of Jyoti:-
(i) Swelling 1" x 3" on left elbow,
(ii) swelling 1" x 3" on left knee joint and
(iii) swelling 2"x 2" on right shoulder.
All the injuries were caused by hard and blunt object. They were
simple in nature. Her injury report is Ex. P/22.
Injuries of Naveen:-
(i) Incised wound 1" x 1/4" x 1/4" on right cheek,
(ii) Incised wound 1 1/4" x 1/4" x 1/4" on right side of chin,
(iii) swelling on left elbow joint,
(iv) swelling on right shoulder joint and
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(v) swelling on back all over right scapular area.
Injury nos. 1 and 2 were caused by some sharp edged object and
other injuries were caused by hard and blunt object. Injuries nos. 3, 4
and 5 were referred to X-ray examination. Injury nos. 1 and 2 were
simple in nature. His injury report is Ex. P/23.
21) Evidence of Nirmal (PW3) finds further support from the first
information report Ex. P/2 lodged by him at police station Shahgunj
within half an hour of the occurrence. As far as the presence of
independent witness at the spot is concerned, Naveen (PW6) testified
that after his parents died, 15-20 persons had reached from the
neighbourhood. His uncles Mahesh and Rambharose had reached first.
Mahesh (PW2) also stated that about 25-30 persons had come at the
place of occurrence, but they had come late, after the occurrence was
over.
22) We find no substance in the submissions of learned counsel for the
appellants that the evidence of aforesaid eye witnesses was not reliable
because they did not specifically point out as to which injury of the
deceased persons was caused by whom. From the evidence of Dr.
R.K.Bhatnagar (PW4), who performed the postmortem examination of
the bodies of deceased persons, it is apparent that Ramkishore sustained
19 injuries on his body. Injury no. 5 were contusions which were 8 in
number. Thus, total number of his injuries was 26 and deceased Kusum
Dubey had sustained 19 injuries on her body. The assailaints were
seven in number. Witnesses had also suffered injuries in the same
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incident, therefore, in our opinion, it cannot be expected from the
witnesses to describe that who caused which injury to victims.
23) It is true that no specific evidence in respect of motive for the
occurrence has been adduced by the proscution, but where there is direct
evidence of the incident, the absence of prove of motive cannot be held
to effect the veracity of the prosecution case. In Gurucharan Singh
and another Vs. State of Punjab-AIR 1956 SC 460 the Apex Court
observed that where the positive evidence against the accused is clear,
cogent and reliable, the question of motive is of no importance. It was
again observed by the Apex Court in Narayan Nathu Naik Vs. State of
Maharashtra-AIR 1971 SC 1656, that the Court need not consider
the question of motive, if it is satisfied that the evidence that accused
was the assailant of victim is acceptable.
24) After closely scanning and scrutinizing the evidence on record, we
find that the evidence of eye witnesses adduced in the case is clear,
cogent and reliable. Trial Court has committed no error in placing implicit
reliance on their evidence in holding the appellants guilty of causing
death of two deceased persons namely Ramkishore Dubey and Smt.
Kusum Dubey. Their conviction under Sections 147, 148, 323/149 and
324/149 of the Indian Penal Code is also justified.
25) We find no substance in the submissions of learned counsel for the
appellants that the intention of the appellants was not to commit murder
of the deceased persons. It has been amply established that the
appellants caused in all about 45 injuries to deceased persons. There
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were injuries on the vital parts like head and chest resulting in fractures
of many bones. They caused death of Smt. Kusum Dubey when she tried
to rescue her husband and they caused injuries to their children also
when they made attempt to save their parents. The conduct of
appellants clearly indicated that they caused death of deceased persons
with the intention of committing their murder. Their conviction by the
trial Court under Section 302/149 IPC is, therefore, affirmed.
26) In view of the above, in our opinion, no grounds have been made
out for interference. Appeal is, accordingly, dismissed.
(RAKESH SAKSENA) (T.K.KAUSHAL)
JUDGE JUDGE
AD/