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Veer Bahadur & Others v/s State of Madhya Pradesh


Company & Directors' Information:- BAHADUR AND COMPANY PRIVATE LIMITED [Strike Off] CIN = U74999RJ1994PTC001499

    Criminal Appeal No. 2261 of 2009

    Decided On, 20 July 2018

    At, High Court of Madhya Pradesh

    By, THE HONOURABLE MR. JUSTICE J.P. GUPTA & THE HONOURABLE MR. JUSTICE SUBODH ABHYANKAR

    For the Appellants: Vijay Kumar Lakhera, Learned Counsel. For the Respondent: Y.D. Yadav, Learned Govt. Advocate.



Judgment Text

SubodhAbhyankar, J.

1. This criminal appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellant No.1 Veer Bahadur, appellant No.2 Moorat Singh and appellant No.3 Jagdish Singh being aggrieved by the judgment dated 3/11/2009 passed by the learned Additional Sessions Judge, Kotma District Anuppur in ST No.218/2009, whereby the appellants have been convicted under Sections 302/34 of IPC and sentenced to life imprisonment with fine of Rs.3,000/- each with default clause.

2. The prosecution case in short is that on 2.7.2006 appellant No.3 Jagdish Singh had gone to Village Jamuniya for preparation of below poverty line card, at that time when the photographs were being taken by A3 Jagdish Singh, some hot talk took place between A3 Jagdish Singh and one Lalla Gond and in their dispute deceased Bhagwandin Shukla intervened and the A3 Jagdish Singh left from the spot. Although appellant No.1 Veer Bahadur and appellant No.2 Moorat Singh also came there and threatened the deceased Bhagwandin Shukla of dire consequences. After sometime on the same day, deceased Bhagwandin Shukla had gone with his nephew Vishnu Shukla (PW-12) to the house of one Jay Singh Gond to fetch seeds and from there when they left at 7:30 PM, at that time the appellants, who were hiding nearby started assaulting the deceased with the aid of tangiya (sharp edged weapon) by A3 Jagdish Singh, A2 Moorat Singh-stick and A1 Veer Bajadur-rod respectively. Due to excessive bleeding, deceased Bhagwandin Shukla became unconscious and subsequently succumbed to the injuries on the same day on the way to the hospital.

3. After the investigation was over, the charge sheet was filed against the appellants and they were subsequently tried by the Additional Sessions Judge, Kotma, who, after recording the evidence of the witnesses convicted the present appellants under Sections 302/34 of IPC and sentenced them as aforesaid vide its judgment dated 3/11/2009.

4. Being aggrieved by the said judgment, finding and sentence the instant appeal has been preferred by the appellants.

5. Learned counsel for the appellants has submitted that the prosecution story is full of infirmities and there are material omissions and contradictions, hence the impugned order is liable to be set aside. It is further submitted that there are two sets of evidence in the present case, one comprising of the PW-2 Kamal Singh and PW-5 Ramshankar Shukla, who claim to be the eye-witnesses and on the other hand there is PW-12 Vishnu Shukla, the author of the FIR (Ex.P-18), who has stated that he, at the time of incident was accompanying his uncle, the deceased Bhagwandin Shukla and soon after the incident he had run away from the spot but subsequently when he came back on the spot he found other persons namely Jay Singh, Balbhadra Singh, Yuvraj Singh, Kamla Singh (PW-2) and PW-5 Ramashankar. Thus, it is submitted by the learned counsel for the appellants that if the depositions of other prosecution witnesses viz. PW-2 Kamla Singh and PW-5 Ramashankar are believed, then PW-12 Vishnu Shukla, who claims to be on the spot with the deceased at the time of incident, cannot be accepted, as these witnesses have not deposed that Vishnu Shukla (PW-12) was also present on the spot when the incident took place. Learned counsel for the appellant has further submitted that otherwise Vishnu Shukla (PW-12) happens to be the author of the FIR, who has lodged the same on 2.7.2006 but has not stated in the Court that PW-2 Kamla Singh and PW-3 Komal Singh (hostile) and PW-5 Ramashankar were also on the spot and have witnessed the incident.

6. On the other hand, learned counsel for the State has submitted that the prosecution has been able to prove its case beyond reasonable doubt specially when the eye-witnesses have not been declared hostile, and as such their testimony cannot be discarded lightly. It is 5 further submitted that the incident had taken place in the middle of the village and has been witnessed by many persons, who have also deposed the same in the Court; as such there is no reason to disbelieve their testimonies.

7. Heard the learned counsel for the parties and perused the record.

8. So far as the nature of death of the deceased Bhagwandin Shukla is concerned, according to Dr. Smt. S. Kori (PW-6), who has conducted the post-mortem report (Ex.P-8), the injured had received as many as 12 injuries, which are as under:

'1. One LW over Rt parietal occidental region 1cm x lat to mid line. Size 9cm x 3 cm x Brain tissue parietal bone fracture multiple in piece broken and pierce the brain tissue.

2. One IW over Rt scapula 6.5cm x 1 cm x cm vertical.

3. One IW over back lumber region 2cm x 1cm x 1cm. 3Cm away from vertebra transverse placed.

4. One Bruise over Lt Scapula 9cm x 9cm.

5. One Bruise 6 cm below Lt. Scapula 6 cm x 1 cm vertical.

6. One Bruise over back Rttogt cross vertebra captolumber region 27cm x 2cm vertical oblique.

7. One bruise dot to 5 NO injury Lt side 13 cm x 2cm vertical oblique.

8. One Bruise over Rt scapula to lower thoracic region 21 cm x 2 cm x vertical oblique.

9. One abrasion medial to Rt scapula 7 cm x 1 cm.

10. One Bruise below 2cm Rt Scapula 10cm x 2cm and cross injury NO 8th .

11. One Abrasion over forehead midline- size 2cm x 1 cm. All injuries were ante-mortem. Injury 2, 3rd caused by hard and sharp object. Rest injuries were caused by hard and blunt object.

12. Over middle of Rt Pinna one IW 2cm x 1cm x cartilage caused by hard and sharp object ante mortem.'

The cause of death was due to excessive hemorrhage from the injuries within 24 hours and pieces of bones were also piercing the brain matter. Thus from the aforesaid testimony of Dr. S.Kori (PW-6), it can be safely held that the death was homicidal in nature.

9. Now, the question is whether the appellants have committed the alleged offence or not. So far as the FIR (Ex.P-18) is concerned, the same was lodged on 2.7.2006 at around 10:00 PM by Vishnu Shukla (PW-12) against three accused persons viz. the present appellants herein, the time of incident was said to be 7.30 pm. In the FIR it is stated that on the date of incident a dispute took place between the appellant No.3 Jagdish Singh and his uncle Bhagwandin Shukla and afterwards when this witness and Bhagwandin had gone to fetch seeds, as soon as they came out from the house of Jay Singh, at that time appellants Jagdish Singh, Veer Bahadur and Moorat Singh came out from hiding and started assaulting him. He has further stated that after the incident he cried for help and at that time Jay Singh, Balbhadra Singh, Yuvraj Singh, Kamla Singh (PW-2), Komal Singh (PW-3) came running to the spot and since his uncle Bhagwandin Shukla was already unconscious, and he was taken to the hospital.

10. Vishnu Shukla (PW-12) has reiterated the story in the Court. According to him, he shouted and ran way from the spot and when he came back after sometime, he saw Jay Singh, Balbhadra Singh, Yuvraj Singh, Kamla Singh (PW-2) and Komal Singh (PW-3) and other persons were present in his house and had taken deceased Bhagwandin Shukla from the spot to his house. However, he has admitted that when he screamed for help ran from the spot, till that time no other person had come. According to this witness, he is the only person, who had witnessed the incident which actually belies the story of the prosecution’s other witnesses.

11. The prosecution has examined PW-2 Kamla Singh who has claimed to be an eyewitness, PW-3 Komal Singh and Rajmani Mishra (PW-4) who have been declared hostile. Ramashankar Shukla (PW-5), who happens to be the brother of the deceased and has claimed to have seen the incident, he has also stated that he saw the appellants assaulting Bhagwandin Shukla with various weapons in their hands including tangi, stick and rod. He has further stated that when this witness raised an alarm, other persons viz. Balbhadra Singh, Yuvraj Singh, Komal Singh and Kamla Singh came to the spot and took the deceased to the hospital at Kotam where he succumbed to the injuries. However, this witness does not disclose whether at the time of incident Vishnu Shukla (PW-12) was also present. This witness in para 8 of his deposition has clearly stated that when he left the spot, he found the deceased to be unconscious and was drenched in blood, however he has not mentioned regarding the presence of Vishnu Shukla (PW-12), who also claims to be an eye-witness.

12. Thus on the basis of above mentioned two sets of evidence, the prosecution story has become rather doubtful. The learned Judge of the trial Court has convicted the present appellants on the basis of ocular evidence as well as the medical evidence, however the learned Judge has lost the sight of the fact that there is material contradiction between Vishnu Shukla (PW-12) and Ramashankar Shukla (PW-5), who is also the uncle of Vishnu Shukla and thus if both of them share the unclenephew relationship, there was no reason for each of them not to disclose the name of other’s presence in their statements but this fact is missing from their statements, which casts a serious doubt about the veracity of the incident in the manner in which it took place and as described by the prosecution witnesses. If the testimony of Ramashankar Shukla (PW-5) is to be believed, then the presence of Vishnu Shukla (PW-12) has to be ruled out at the time of incident and if Vishnu Shukla (PW-12) is believed, then the presence of Ramashankar Shukla (PW5) and other witnesses is to be ruled out. In view of the same, this Court is of the considered opinion that the learned Judge of the trial Court has erred in convicting the present appellants as aforesaid on the basis of material discrepancies between the statements of two eye-witnesses Ramashankar Shukla (PW-5) and Vishnu Shukla (PW-12) claiming themselves to be the eyewitnesses of the incident. Thus, the benefit of doubt ought to have been given to the appellants specially when the

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seizure witnesses have also been declared hostile. 13. So far as recovery of stick and iron rod is concerned, it has been proved by PW-7 Shyamu Sharma and the tangi has been recovered at the instance of appellant No.3 Jagdish Singh vide Ex.P/16 but surprisingly for none of these articles, FSL report has been brought on record to connect them with the offence which is also reflected in para 24 of the impugned judgment. 14. A close scrutiny of the evidence on record as also the impugned judgment reveals that the learned judge of the lower Court has not adverted to the aforesaid discrepancies of the prosecution story as have been discussed above which goes to the root of the matter and has the effect of unsettling the impugned judgment. 15. In the result, the criminal appeal stands allowed and the impugned judgment dated 3.11.2009 convicting the present appellants under Sections 302/34 of IPC passed by the Additional Sessions Judge, Kotma in ST No.218/2009 is hereby set aside. Since the appellants are in jail, it is directed that they be released forthwith if not required in any other case.
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