Kalyan & Others vs State of Madhya Pradesh

All the appeals are connected with the common judgment dated 07/09/2006, passed by First Additional Sessions Judge, Shivpuri in Sessions Trial No.63/2006 and, therefore, they are decided by the present common judgment.

(2) The appellants have preferred the present appeals against the judgment dated 07/09/2006, passed by First Additional Sessions Judge, Shvipuri (MP) in Sessions Trial No.63/2006, whereby each of them has been convicted of offence under Section 302 / 149 of IPC and sentenced to life imprisonment. Appellant- Dilip alias Ballabh has also been convicted of offence under Section 148 of IPC and

sentenced to one year''s rigorous imprisonment.

(3) Prosecution''s case, in short, is that on 05/02/2006, deceased Ramsakhi, resident of village Maheshpur Padarkheda (Police Station Gopalpur, District Shivpuri) went to irrigate her field of lauki (bottle gourd). At about 2:00 pm, the appellants visited the spot and tried to drag her so that she could be sexually abused. On her shouting, the witnesses Matadin (PW-2) and Mishrilal (PW-4) tried to save her but when the appellants gave a threat they refrained from interfering. When deceased Ramsakhi resisted and the appellants could not take her, all the appellants assaulted her with kicks and fists. Appellant- Dilip alias Ballabh gave a blow of sabbal (a thick and heavy iron rod) on her head and thereafter she fell down on the bottom of the dry river. Witnesses Matadin and Mishrilal immediately went to the village and informed Laxminarayan (PW-1) husband of deceased Ramsakhi. Laxminarayan went to the spot and saw the dead body of the deceased and immediately rushed to the Police Station Gopalpur where he lodged the FIR Ex.P1 at 04:30 pm. The Investigating Officer, Sub-Inspector Ajit Singh Chauhan (PW-6) after completing the formalities sent the dead body of the deceased for its postmortem. On 06/02/2006 Dr.AP Singh (PW-8) performed the postmortem on the body of the deceased and gave a report Ex.P20. He found two injuries to the deceased; one was lacerated wound on right back of head and second was a contusion on occipital region of her head. The clothes of the deceased were not found torn and no other injury was found but the bones below the injuries were found broken at two places and there was subdural haemorrhage on the brain. He also found subarachnoid haemorrhage to the deceased. Dr. AP Singh opined that the deceased died due to head injuries, her death was homicidal in nature and occurred 18- 36 hours before the postmortem.

(4) Sub-Inspector Ajit Singh Chauhan (PW-6) went to the spot and collected plain and bloodstained soil from the spot and prepared a seizure memo Ex.P5. He recorded the statements of various witnesses under Section 161 of CrPC. The appellants were arrested and seizure memos Ex.P13 to Ex.P16 were prepared. Appellant Dilip alias Ballabh was arrested and a memo Ex.P6 was prepared. On

20/02/2006 appellant- Dilip alias Ballabh was interrogated and he told about sabbal kept below the bag of wheat and a memo Ex.P7 under Section 27 of the Evidence Act was prepared. Thereafter, one iron sabbal was recovered and a seizure memo Ex.P8 was prepared. The clothes of the deceased, bloodstained soil taken from the spot and weapon recovered from the appellant Dilip alias Ballabh were sent for forensic science examination with a letter Ex.P17. However, the report of Forensic Science Laboratory was Ex.P21 produced on record in which the report of bloodstains and semen particles was given but no report was given relating to the iron sabbal recovered from appellant Dilip alias Ballabh. After due investigation, the charge-sheet was filed before the JMFC, Shivpuri who committed the case to the Court of Session and ultimately it was transferred to the First Additional Sessions Judge, Shivpuri. The appellants abjured their guilt. They took a plea that they were falsely implicated in the matter. In defence, Virendra (DW1) and Ramcharan (DW2) were examined. Ramcharan (DW2) was examined to prove the plea of alibi of Kalyan whereas Virendra (DW1) was examined to prove the enmity between Laxminarayan,father of the deceased and appellant Nand Kishore.

(5) The trial Court after considering the evidence adduced by the parties,acquitted all the appellants except appellant Dilip alias Ballabh from the charge of Section 148 of IPC but convicted and sentenced them, as mentioned above.

(6) We have heard the learned counsel for the parties at length.

(7) First point which is to be considered in the present matter is about the death of the deceased whether it is a homicidal in nature or not? In this connection, the evidence given by Dr. AP Singh (PW-8) is important. Dr. AP Singh performed the postmortem on the body of deceased Ramsakhi and gave a report Ex.P20. He found following injuries:-

"No.1. A lacerated wound size of 3x2x 2cm on right side of her head. No.2. A contusion size of 4 x 4cm on occipital region i.e. back side of her head.''''

There was no injury or discharge from her vagina etc. However, as

requested by the Investigating Officer, Dr.AP Singh (PW-8) took the vaginal swab and prepared a slide. On opening of the body he found a fracture of occipital bone and right parietal bone. Subdural haemorrhage and subarachnoid haemorrhage were found on the brain whereas meninges were found to be congested. Various other vital organs of the body were congested but intact. Clothes of the deceased were also intact. Dr.AP Singh provided clothes of the deceased and slide prepared of vaginal swab to the concerned Constable after sealing them so that Forensic Science examination of such articles be done. According to Dr. Singh, the deceased died due to head injury and she went in comma. Death of the deceased was homicidal in nature and it could be caused 18- 36 hours prior to the postmortem. If the entire report given by Dr. AP Singh (PW-8) is considered then there is no reason to discard the same. The injuries found on the head of the deceased were sufficient to cause death in natural course of her life and hence the death of the deceased is homicidal in nature.

(8) The prosecution has examined two eye-witnesses, mainly, Matadin (PW2) and Mishrilal (PW4). According to these witnesses, they were working in their respective fields and at about 2:00 pm they heard the shouts of deceased Ramsakhi. Therefore, they immediately rushed towards the spot. According to these witnesses, the dry river was 10 ft. deep and, therefore, they could not reach near the deceased or the appellants but from edges of their fields they could see the activity of the appellants. All the appellants had given kicks and fists to the deceased while trying to drag her from that place. Ultimately, appellant Dilip alias Ballabh gave a blow of sabbal on her head. When Matadin and Mishrilal told the appellants not to assault the deceased then they challenged the witnesses that they would also be killed and thereafter they tried to hide themselves in the crops grown on the fields. The appellants had hidden the body of the deceased in the bottom of the dry river and thereafter, the witnesses went to the village Maheshpur Padarkheda and intimated about the incident to witness Laxminarayan (PW-1). Laxminarayan (PW-1), husband of the deceased went to the spot and saw the dead body of

his wife. Thereafter, he went to the police station Gopalpur and lodged an FIR Ex.P1 which was recorded by Sub-Inspector Ajit Singh Chauhan (PW-6).

(9) Evidence of the eye-witnesses Matadin and Mishrilal is duly corroborated by evidence of Laxminarayan (PW1), timely lodged FIR Ex.P1 and medical evidence as given by Dr. AP Singh (PW-8). Hence, prima facie, it appears that appellant- Dilip alias Ballabh gave blows of sabbal on the head of deceased Ramsakhi and killed her. However, the evidence of eye-witnesses Matadin and Mishrilal is to be considered against the remaining appellants. It would be apparent that the allegations made against the appellants that they assaulted the deceased with kicks and fists while she was being dragged. However, Dr. AP Singh (PW8) did not find any injury of kicks and fists on the body of the deceased. It would be apparent that from the evidence of Matadin and Mishrilal that except appellant Dilip alias Ballabh no appellant was armed with any weapon. It is not alleged by the witnesses Matadin and Mishrilal that when appellant Dilip alias Ballabh gave a blow of sabbal on the head of the deceased, any of the remaining appellants assaulted deceased Ramsakhi thereafter. Under these circumstances, in absence of medical evidence, evidence of Matadin and Mishrilal cannot be accepted that the appellants gave kicks and fists to the deceased Ramsakhi. Also, it is possible that the appellants would have tried to drag deceased Ramsakhi for a particular purpose. The purpose is not known to the witnesses Matadin and Mishrilal. They thought that the appellants wanted to abuse her sexually. It is not clear from the record that what was the purpose of the appellants and where they were dragging the deceased. It is possible that the purpose of the appellants was different from the purpose which was presumed by witnesses Matadin and Mishrilal.

(10) Whatsoever purpose of the appellants might have been, it is apparent that the claim of witnesses Matadin and Mishrilal that the remaining appellants assaulted the deceased with kicks and fists was not proved beyond doubt. If the deceased would have assaulted by kicks and fists then she would have sustained some injuries. The

deceased was a woman whereas the appellants were stout persons. The story of Matadin and Mishrilal about the motive of the appellants cannot be accepted. In this connection, the spot map Ex.P2 may be considered. According to Sub-Inspector Ajit Singh Chauhan (PW-6) he prepared the spot map Ex.P2. He found the dead body of deceased Ramsakhi at place "A" which was 300 meters away from her field of lauki (bottle gourd). Sub Inspector Ajit Singh Chauhan had shown the field of the deceased at Serial No.3 in the spot map. In that field crop of wheat and mustard was sown by Laxminarayan in two portions and in third portion bottle gourd was sown and according to information of Laxminarayan the deceased was irrigating her crop of bottle gourd. The dry river had bifurcated the lands of villagers at the spot. On one bank of that dry river, there was field of Laxminarayan at serial no.3, field of Matadin was at serial no.4 and field of Mishrilal was at serial no.5 whereas the dead body of the deceased was lying on opposite bank of that dry river near the field of one Chhiga Yadav and hence, the deceased was already dragged for 300 meters from the place where she was working or she was already there at the spot due to some reason. Since witnesses Matadin and Mishrilal went to the spot after hearing the shouts of deceased Ramsakhi, therefore, it was not proved beyond doubt that the deceased was dragged for 300 meters from the field as shown in the spot map at place "B" on serial no.3. It is possible that deceased Raksakhi went to the bottom of dry River for some purpose where she was held by the appellants. Hence, if the appellants were dragging the deceased Ramsakhi then their purpose should be different to kill her and, therefore, by dragging of deceased Ramsakhi overt act of appellants Kalyan, Dangal, Vishram and Nand Kishore cannot be presumed that they intended to kill the deceased Ramsakhi. It is not proved beyond doubt that the remaining appellants except appellant Dilip alias Ballabh gave kicks and fists to the deceased Ramsakhi otherwise she would have sustained the injuries of such assault. Being a woman when four stout persons were giving kicks and fists she would have fallen down on the ground and thereafter it was not possible for appellant Dilip alias Ballabh to give a blow of sabbal on her head. Possibility cannot be ruled out that deceased Ramsakhi went to the spot due to any reason and

thereafter the appellants surrounded her. Looking to the evidence of Matadin and Mishrilal, it is possible that when the witnesses heard the shouts of the deceased Ramsakhi and they went to the core of their fields to see the incident, then they could see only the activity of appellant Dilip alias Ballabh and they would have presumed that deceased Ramsakhi would have assaulted by the remaining appellants by kicks and fists but it is confirmed by witnesses Matadin and Mishrilal that deceased Ramsakhi was standing when appellant Dilip alias Ballabh gave a blow of sabbal on her head. Under these circumstances, no overt act of appellants Kalyan, Dangal, Vishram and Nand Kishore was proved to show their common intention or common object to kill the deceased Ramsakhi or to voluntarily cause hurt to her.

(11) The trial Court has acquitted appellants - Kalyan, Dangal, Vishram and Nand Kishore from the charge of Section 148 of IPC. If any accused is acquitted from the charge of using criminal force in furtherance of his common object or being a member of unlawful assembly then such accused could not be convicted of any main offence with the help of Section 149 of IPC whereas the trial Court has convicted these appellants of offence under Section 302 r/w Section 149 of IPC. It was the duty of the trial Court to record the common object of the appellants in the judgment and to establish that the appellants were the members of unlawful assembly who participated in the crime. If the remaining appellants did not have any deadly weapon then while acquitting them from the charge of Section 148 of IPC they should have been convicted of offence under Section 147 of IPC otherwise in absence of their common intention or common object or when they were not found to be members of unlawful assembly, none of them could be convicted of offence under Section 302 of IPC with the help of Section 149 of IPC. However, in the present case, when the witnesses could not prove that the remaining appellants except appellant Dilip alias Ballabh have assaulted deceased Ramsakhi in any manner, then it cannot be said that they formed an unlawful assembly to kill deceased Ramsakhi and, therefore, when they were not the members of unlawful

assembly to kill deceased Ramsakhi then they could not be convicted of offence under Section 302 of IPC or any inferior offence of similar nature with help of Section 149 of IPC.

(12) When it is not proved beyond doubt that the appellants have constituted an unlawful assembly for a particular crime then they could not be convicted of offence under Section 148 or 147 of IPC . Since the trial Court has already acquitted the remaining appellants of the charge of Section 148 of IPC, then there is no need to acquit them separately for offence under Section 147 of IPC because they were not convicted by the trial Court for that offence. However, when unlawful assembly was not constituted then the appellant Dilip alias Ballabh could not be convicted of offence under Section 148 of IPC and the trial Court has committed an error in doing so. When it is not proved beyond doubt that any unlawful assembly was constituted or any other appellants except appellant Dilip alias Ballabh had done any overt act to show his common intention with appellant Dilip alias Ballabh then none of the remaining appellants can be convicted of offence under Section 302 with the help of Section 34 of IPC. The trial Court has committed an error in convicting the remaining appellants of offence under Section 302 of IPC with the help of Section 149 of IPC.

(13) Now, the crime of appellant Dilip alias Ballabh is to be considered separately. According to witnesses Matadin and Mishrilal, appellant Dilip alias Ballabh gave a blow of iron sabbal on the head of the deceased and therefore, she fell down on the bottom of the dry river and succumbed to the injuries. Learned counsel for appellant Dilip alias Ballabh has submitted that appellant Dilip alias Ballabh is falsely implicated due to enmity. However, if evidence of the defence witnesses Virendra (DW1) and Ramcharan (DW2) is considered, then Ramcharan (DW2) has tried to prove the alibi of appellant Kalyan and Virendra (DW1) has stated that Laxminarayan brought Baba Nand Kishore as a priest of temple and Baba Nand Kishore was residing in the house of Laxminarayan. Thereafter, it was noticed that appellant Baba Nand Kishore was of Jatav community and, therefore, a dispute took place between Laxminarayan and Baba Nand Kishore. Virendra

(DW1) has further stated that in the dispute enmity was created between his brothers and Laxminarayan, husband of the deceased. However, Virendra did not state that appellant Dilip alias Ballabh was his brother or what was the role of Dilip alias Ballabh in that quarrel of Baba Nand Kishore and witness Laxminarayan. Hence,Virendra could not establish his enmity with Laxminarayan. It is true that witnesses Matadin and Mishrilal were the field-neighbourers of witness Laxminarayan, husband of deceased Ramsakhi and they could state in favour of witness Laxminarayan who lodged the FIR Ex.P1 but no suggestion was given either to Matadin or Mishrilal that they had any enmity with appellant Dilip alias Ballabh. So many suggestions were given to these witnesses to create a doubt in the case. For example, it was suggested to the witnesses that deceased Ramsakhi was involved in digging the treasure and it was also suggested that she had relations with Baba Nand Kishore but such suggestions have no meaning to prove enmity between appellant Dilip alias Ballabh and Laxminarayan. Witness Matadin has categorically stated in para 14 that there was no enmity between appellant Dilip alias Ballabh and Laxminarayan but they were dealing with each other like brothers. Matadin has also denied the suggestion that cows of appellant Dilip alias Ballabh entered the field of Laxminarayan. However, appellant Dilip alias Ballabh could not adduce the defence evidence according to the suggestion given to these witnesses Matadin and Mishrilal to show his enmity with Laxminarayan or witnesses Matadin or Mishrilal. Hence, there was no possibility that the witnesses would have falsely implicated appellant Dilip alias Ballabh.

(14) The learned counsel for appellant Dilip alias Ballabh has submitted that in sport map Ex.P/2 Sub-Inspector Ajit Singh Chauhan (PW-6) had shown the place where Matadin and Mishrilal were standing. According to the spot map, distance of spot was 100 meters away from where the witnesses were standing and since the dry river was 10 feet deep and the spot was at the bottom, therefore, it was not possible for the witnesses to see the incident. It is true that from a distant place no one can see the things happening in a ditch but it is clearly stated by witnesses Matadin and Mishrilal that after hearing

the shouts of deceased Ramsakhi they rushed to the spot and they saw the incident when they were standing on the core of their fields on the bank of the dry river, hence at that time their distance from the spot was hardly 15 feet, because the dry river was 15 feet wide. According to Sub-Inspector Ajit Singh Chauhan, he mentioned such a distance in the spot map Ex.P2 and, therefore, from a distance of 15 feet where they saw the incident from the core of their fields it was possible for them to see the incident.

(15) Learned counsel for appellant Dilip alias Ballabh has submitted that according to the witnesses, appellant Dilip alias Ballabh gave a single blow of sabbal to the deceased Ramsakhi but Dr.AP Singh (PW8) found two injuries on the head of the deceased Ramsakhi and hence the witnesses are not reliable but such contention cannot be accepted because they could see that appellant Dilip alias Ballabh raised sabbal to give a blow but when the deceased was surrounded by so many persons, then it is possible that the witnesses could not see the second blow given by Dilip alias Ballabh. Similarly, learned counsel for appellant Dilip alias Ballabh has submitted that according to the witnesses they saw the incident but thereafter the dead body of the deceased was found to be partially hidden by bushes and the witnesses did not state as to who placed the bushes on her body and, therefore, witnesses Matadin and Mishrilal were not the eyewitnesses. However, it is apparent from the statements of Matadin and Mishrilal that soon after the incident they went to inform Laxminarayan about the incident and when on being threatened witnesses Matadin and Mishrilal had hidden themselves in their crops. It is possible that the accused persons would have thought that the witnesses have left the spot and thereafter when the witnesses would have visited the house of Laxminarayan the body of the deceased was partially covered by bushes by some of the appellants. However, the trial Court did not append any charge under Section 201 of IPC against any of the appellants and it is not clear that out of four- five appellants who placed the bushes on the body of the deceased.

(16) On the basis of aforesaid discussion, it would be apparent that eyewitnesses Matadin and Mishrilal are believable. Their evidence

was duly corroborated by timely lodged FIR Ex.P1 and medical evidence given by Dr.AP Singh (PW8). It is proved beyond doubt that appellant Dilip alias Ballabh had given two blows of heavy iron sabbal on the head of deceased Ramsakhi and caused her death. The learned counsel for the appellant has submitted that if witnesses have stated about the single blow given by appellant Dilip alias Ballabh then due to single blow, it cannot be presumed that appellant Dilip alias Ballabh had intended to kill the deceased and, therefore, he may not be convicted of offence under Section 302 of IPC but he could be convicted of offence under Section 304 of IPC. However, such submission cannot be accepted. If witnesses could not see the second blow given by appellant Dilip alias Ballabh then it cannot be said that he did not give two blows. When except appellant Dilip alias Ballabh there was nobody having any weapon then on information of two injuries which could be caused by heavy weapon, it shall be presumed that a person who gave the first blow, had repeated the assault. Dr. AP Singh (PW8) has denied the suggestion given by the defence counsel that the injuries found on the head of the deceased could be caused by falling on stone etc. It is not proved beyond doubt that dead body of the deceased was lying at the place in the bottom of the dry river where stones were lying. Hence, it is clear from the circumstances that appellant Dilip alias Ballabh gave two blows on the head of the deceased which was a vital part of the body and by each blow he caused fracture on the head and in consequence thereof deceased Ramsakhi died. Under these circumstances, appellant Dilip alias Ballabh was intended to kill the deceased Ramsakhi and the trial Court has rightly convicted him for offence under Section 302 of IPC.

(17) So far as the sentence is concerned, the trial Court has recorded the minimum sentence against appellant Dilip alias Ballabh relating to offence under Section 302 of IPC and, therefore, no further dilution can be done.

(18) On the basis of aforesaid discussion, the appeal filed by appellant Dilip alias Ballabh cannot be accepted against conviction of offence under Section 302 of IPC. However, since it was not proved that an unlawful assembly was constituted to kill deceased Ramsakhi

and, therefore, appellant Dilip alias Ballabh can be acquitted from the charge of Section 148 of IPC. In the result, the appeal filed by appellant Dilip alias Ballabh is hereby partly allowed. His conviction and sentence of offence under Section 148 of IPC is hereby set aside. He is acquitted from that charge whereas his conviction and sentence of offence under Section 302 of IPC is hereby maintained. Appeals filed by the remaining appellants are acceptable. It could not be established that they formed any unlawful assembly to kill the deceased Ramsakhi and, therefore, they cannot be convicted of offence under Section 302 r/w Section 149 of IPC. Hence, appeals filed by remaining appellants- Kalyan, Dangal, Vishram and Nirman Nityananda Baba alias Nandkishore is hereby allowed. Their conviction as well as the sentence recorded by the trial Court for offence under Section 302 r/w 149 of IPC is hereby set aside. They are acquitted from the aforesaid charge.

(19) The appellant Dilip alias Ballabh is in custody and, therefore, Registry is directed to arrange for issuance of supersession warrant. Since the remaining appellants are on bail, their presence is no more required before the Court and hence, their respective bail bonds shall stand discharged.