Shamboo Prasad Tiwari And Ors. vs State Of Madhya Pradesh

The present appeal has been filed by the appellants against the judgment of conviction and sentence dated 30-06-1997 passed in ST No. 74/96 by the learned First Additional Sessions Judge, Mandla. By the said order, the appellants Samboo Prasad Tiwari, Dhani Ram, Kuwar Prasad Tiwari and Laxman Prasad Dubey have been convicted and sentenced to suffer 5 years RI and fine of Rs. 1000/- and directed to suffer additional imprisonment for 3 months in default of payment for fine for offence punishable under Sections 307 and 304 Part-2 read with Section 34 of IPC. The sentences are to run concurrently for both the offences.

The sentence of appellant No. 1 Shamboo Prasad Tiwari was suspended vide order dated 26-08-1997 and he was enlarged on bail. Vide order dated 20-03-2014, the name of the appellant Dhani Ram was directed to be struck off from the array of the appellants as he died on 15-09-2000 and charges against him stood abated.

The order dated 17-09-2014 passed by this Court reflects that appellant No. 4- Laxman Prasad Dubey had already suffered the sentence and has been released from custody and that the appeal in so far as appellant No. 4 was dismissed as not pressed. Thereafter, the appeal is pending decision as regards the appellant No. 1- Shamboo Prasad Tiwari and appellant No. 3-Kunwar Prasad Tiwari.

The case of the prosecution is that on 28-04-1996 at around 5:30 PM, the appellant No. 1 is stated to have exhorted other co-accused persons to assault the injured Dwarka Prasad Soni. Upon this, the appellant No. 3 and the appellant No. 2 are said to have thrown Dhani Ram on the ground and thereafter, the appellant No. 4-Laxman Prasad Dubey is said to have whipped out his knife and he along with Dhani Ram, stabbed and caused injuries to Dwarka Prasad. The deceased Nirmala Bai, who is the wife of injured Dwarka Prasad came running to the scene of occurrence and lay on the top of her husband in order to protect him. The appellant Dhani Ram is stated to have struck a knife blow on her chest on account of which Nirmala Bai died. As stated herein earlier, that the present appeal is now only been considered on behalf of the appellant No. 1 and 3, as the appeal stands abated against appellant No. 2 on account his death during the course of pendency of the appeal and the appeal has been dismissed as not pressed on behalf of the appellant No. 4, as he has already completed his jail sentence.

PW-1,is Kodulal who, in his examination-in-chief, says that he was in the hotel of Gendalal at the time of incident. He says that he saw the injured Dwarka Prasad Soni going towards the house of Om Seth. At that time, the appellant No. 1, Shamboo Prasad is stated to have shouted to assault Dwarka. Thereafter, the appellant No. 3, Kunwar Prasad Tiwari caught hold of Dwarka Soni by his waist and threw him on the ground. Thereafter, the appellant Dhani Ram whipped out a knife and stabbed Dwarka Prasad Soni. Thereafter, the appellant No. 4 is stated to have also stabbed Dwarka Prasad. This witness later says that the deceased Nirmala Bai came there to save her husband and lay on top of him. Upon which, the appellant No. 4 is stated to have stabbed Nirmala Bai on the back side of her chest, on account of which, she collapsed there itself. In paragraph-2 of his examination-in-chief, he says that people had gathered there to save Dwarka Prasad and his wife but, all the four accused persons threatened them that anyone who tries to save them would meet the same fate. Learned Amicus Curiae in order to dent the evidence in chief given by this witness has drawn the attention on paragraph-3 of the witness statement in cross-examination, in which this witness appears to be a stock witness in police cases.

The statement in paragraph-3 is as follows:-

"3/ मै 1 या 2 केसों में पहले गवाहीं दे चुका हूॅं। ओझा पटवारी के केस में मैं गवाही दिया था। रेंजर आनंद सिंह के केस में भी गवाही दिया था। भूरा झरिया के केस में भी गवाही दिया था। रघुवीर वाले केस में भी गवाही दिया था। इस तरह कुल मिलाकर यह मेरा 6वां अथवा 7वां मौका गवाही देने का है। मैं गवाही देने का धंधा नहीं करता।"

In examination-in-chief, he has admitted that he has appeared as witness in 6-7 cases. Under the circumstances, the version given in favour of the prosecution by this witness cannot be relied upon as he is a stock witness. In order to show greater relevance with regard to unreliability of this witness statement, learned Amicus Curiae has drawn the attention of this court to paragraph-11, in which this witness admits that there were other respectable persons, who had gathered there and seen the incident but, he does not know why the police has not recorded their evidence. Under the circumstances, the learned Amicus Curiae has argued that the statement of this witness with regard to appellant No. 1 and 3 should be discarded as :-

(a) The witness appears to be a stock witness of the police as is revealed from paragraph-3 of his testimony and

(b) that the police has failed to record the statement of other neutral witnesses, who are respectable persons from the locality, who had witnessed the incident as is reflected from paragraph-11 of his deposition.

PW-2, is Sushil Kumar and this witness does not even murmur with regard to his involvement in the said incident. In cross-examination in paragraph-11, this witness states that

"11 मैंने " ांभू को रोड के दूसरी ओर खडे हुए देखा उसने झगडे में कोई भाग नहीं लिया।""

This witness categorically states that the appellant No. 1 was standing on the road side and had no part to play whatsoever, in the incident. As regards appellant No. 3, this witness states that he was sitting in the hotel from where he saw the incident. This witness states that the first person to have assaulted Dwarka Prasad was Dhani Ram. He says first of all, Dhani Ram came running there and threw a brick at Dwarka Prasad and caught hold of him and threw him on the ground. After that, he says that the appellant No. 3-Kunwar Tiwari came running there and he also caught hold of Dwarka Prasad. Thereafter, he says that the deceased Nirmala Bai came to the scene of occurrence and covered her husband by embracing him. At which point of time, Dwarka Prasad is stated to have stood up and the appellant No. 4 is stated to have stabbed him from behind and assaulted the deceased. Learned Amicus Curiae has stated that this witness, who is an independent witness, has gone to completely absolve the appellant No. 1 by stating that he did nothing but, standing near the road side.

PW-3 is Dwarka Prasad, who is an injured witness. He says that on the date of incident, the appellant No. 2-Dhani Ram Tiwari threw a stone at him and caught hold of him. At this point of time, the appellant No. 3 is stated to have came there and caught hold of injured Dwarka Prasad. He further says that the appellant No. 2-Dhani Ram and the appellant No. 3-Kunwar Prasad Tiwari threw him down. Thereafter, he says that the appellant No. 2 Dhani Ram stabbed him with knife on the shoulder. After that, appellant No. 4 is stated to have came with a knife and stabbed the injured Dwarka Prasad. The deceased Nirmala Bai is stated to have gone there and lay on the top of the injured witness Dwarka Prasad. Upon which, the appellant No. 2 Dhani Ram is stated to have stabbed Nirmala Bai, which struck her on the back side and she became unconscious. As regards the appellant No. 1, this witness states in his examination-in-chief that :

""' ांभू तिवारी घटना के बाद रोड के किनारे खडे हुए थे मैं उनके पास गया। मेैंने उनसे कहा कि यह कराने के लिए यहां खडे थे।"

Learned Amicus Curiae argued that even the injured witness has stated in examination-in-chief that the appellant No. 1-Shamboo Prasad Tiwari came to the scene of occurrence after the incident and was not present during the incident. However, in paragraph-6 of his cross-examination, this witness has stated that it is wrong to suggest that it was Laxman, who had exhorted to assault on him. The exhortation for the assault is attributed by this witness in his deposition to appellant No. 1, who says that it was Shamboo Prasad Tiwari, who had exhorted the assault. Learned Amicus Curiae has said that his statement in court made by the injured witness is unreliable as Exhibit P/9, which is a 161 statement of the witness, with which the witness has been confronted, the witness states that in the portion marked 'D-D' he had stated that it was Laxman Dubey, who had given the exhortation to assault on him. The witness says that he has not given such a statement and if it is there, he does not know why. The learned Amicus Curiae has drawn the attention of this Court once again to paragraph-2 of the statement of the injured witness Dwarka Prasad, wherein he has stated that, Shamboo Tiwari came to the scene of occurrence after the incident and therefore, there can be no exhortation to assault, which could have been given by the appellant No. 1 after the assault had taken place. Under the circumstances, as regards the involvement of the appellant No. 1 in the offence is concerned, there are material contradictions with regard to the presence of the appellant No. 1 at the scene of. Thus, it is clear that the only role attributable to the appellant No. 1 is firstly of having come to the scene of occurrence and thereafter of having continued to remain there.

PW-6 is the next material witness. His name is Dhannulal and he is an eye-witness to the incident. In paragraph-2, of his deposition, he says that Dwarka Soni, the injured was going towards the house of Om Seth. At that time, the appellant No. 3-Kunwar Prasad and the appellant No. 2-Dhani Ram are stated to have caught hold of him and threw him on the ground. Thereafter, the appellant No. 4-Laxman Dubey is stated to have came running from his house with a knife in his hand had stabbed the injured witness Dwarka Prasad. He says that the incident occurred, when he was standing in his court-yard about 10-15 steps away from the scene of crime. Thereafter, the wife of the injured Dwarka Soni came to the scene and tried to protect her husband when the appellant No. 4 is stated to have stabbed her on the back side and caused injuries, on account of which, he fell down. This witness has attributed no role to the appellant No. 1 in his examination-in-Chief. He categorically states that according to him, the assault was committed on the deceased and the injured only by Dhani Ram ( Appellant No. 2), Kunwar (Appellant No. 3) and Laxman ( Appellant No. 4. ). As regards appellant No. 1, he says that the appellant No. 1 was standing away from the scene of occurrence and did not take any part in it. This is an independent witness, who has not been declared hostile. As regards the post-mortem report received by the doctor, this Court does not feel it necessary to refer to it as it is relevant only for appellant No. 2 and 4, who were armed with knife and caused fatal injuries to Nirmala Bai and grievous hurt to the injured Dwarka Prasad.

All that this court needs to see is to whether the appellant No. 1 and 3 are liable to suffer the same punishment as appellant No. 2 and 4 on account of constructive liability sought to be pinned upon the appellants by applying Section 34 of IPC. As regards exhortation that has given by the appellant No. 1-Shamboo Prasad Tiwari which has been stated by PW-1, the same must be rejected, as the learned Amicus Curiae has established that the said witness is a stock witness for police having appeared in 6-7 cases as a witness.

DW-2 does not attribute any role to appellant No. 1 and has clearly stated that he has no role to play in the incident and was present only at the scene of occurrence. As regards appellant No. 3, he is stated to have caught hold of the injured Dwarka Prasad and thrown him on the ground. Besides that, no other act is attributed to the appellant No. 3. Learned Amicus Curiae has submitted that as regards the injuries caused to the deceased Nirmala Bai, appellant No. 3 cannot be said to have shared a common intention with regard to causing her death as Nirmala Bai presence at the scene of occurrence is unexpected and the focus of the assailants was Dwarka Prasad. Under the circumstances, the learned Amicus Curiae has submitted that the injuries that has been caused by the appellant No. 4 on the deceased Nirmala Bai was done in his individual capacity and the same cannot be extended by use of Section 34 of IPC on the appellant No. 3 as facts go to reveal that Nirmala Bai's presence at the scene of occurrence was unexpected.

DW-3 is the injured witness and husband of the deceased. The role he attributes to the appellant No. 3 is of having caught hold of him by the waist and throwing him on the ground. Thereafter, stabbing was carried out by the appellant No. 4. As pointed out earlier there are contradictions on material particulars in the statement of PW-3 as is seen from paragraph-2 and 6 in his deposition with regard to the involvement of the appellant No. 1, where on one hand he says that the appellant No. 1 arrived at the scene of occurrence after the incident. In paragraph-6, he says that it was appellants, who gave exhortation for the assaults. Both these facts are mutually incompatible. If the appellant No. 1 came to the scene of occurrence, after the incident had already concluded, there is no relevance of exhortation to assault which is made after the assault itself.

Likewise PW-6, does not attribute any role to the appellant No. 1 and appellant No. 3, he is also an eye-witness in this case. This witness also gives a limited role to the appellant No. 3, who he says had caught hold of Dwarka Prasad along with Dhani Ram and thrown him on the ground and thereafter, Laxman is stated to have came running from his home and stabs the injured Dwarka Prasad Soni. The statement of the eye-witness Dwarka Prasad Soni go to show that the presence of appellant No. 1 at the scene of occurrence though it does not establish the involvement of appellant no.1 in the said offence beyond reasonable doubt.

Under the circumstances, the appellant No. 1 is acquitted of all the charges. As regards the appellant No. 3, the consistent statement of the eye-witness and the injured witness is that he caught hold of the injured Dwarka Prasad and threw him on the ground and after that no act has been attributed to the appellant No. 3. The evidence adduced by the prosecution, does not go to the extent of establishing that the appellant No. 3 in concert with the appellant No. 2 and 4 acted in furtherance of common intention of attempting to cause the death of the injured Dwarka Prasad.

Under the circumstance, as regards the offence under Section 307 and 304 Part -2 have not been proved beyond reasonable doubt as far as appellant No. 3 is concerned. Therefore, the appellant No. 3 is acquitted of the charges under Section 304 Part -2 and 307 of IPC and is instead convicted for offence under Section 323 of IPC causing simple hurt to the injured Dwarka Prasad and is sentence to suffer RI for a period of one month and his conviction and sentence is set off against the period already undergone by him, before his sentence was suspended and he was enlarged on bail on 26-08-1997. His bail bonds stands discharged.

Under the circumstances, the appeal is allowed as regards appellant No. 1 and he is acquitted of all the charges and partly allowed as far as appellant No. 3 is concerned.