http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 4  

CASE NO.: Appeal (crl.)  99 of 2006

PETITIONER: Magan

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 10/04/2007

BENCH: S.B. Sinha & Markandey Katju

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       Appellant herein is before us questioning the correctness or otherwise  of a judgment and order dated 18.01.2002 passed by a Division Bench of the  Madhya Pradesh High Court, Indore Bench,  Indore, in Criminal  Appeal  No. 1364 of 1998 whereby and whereunder he was held to be guilty of  commission of an offence punishable under Section 302 of the Indian Penal  Code (for short, ’I.P.C.’) and sentenced to undergo imprisonment for life and  a fine of Rs.500/-, in default whereof he had been directed to suffer further  rigorous imprisonment for six months.

       Appellant along with four other persons, namely, Chamru. Dhansingh,  Lalu and Jatnia were charged for commission of offences punishable under  Sections 148, 302 read with Section 149  and Section 323 read with Section  149 I.P.C.  The occurrence took place at about 6.00 p.m. on 27.11.1990 at  village Theka Kund, Haveli Phalia.   

       Deceased Indar Singh along with his brother Hari Singh (PW-2) and  other persons were in their respective hutments.  The accused persons came  there and started shouting, on hearing of which Hari Singh (PW-2), deceased  Indar Singh and  Ansingh, Chandar Singh, Sayaribai and Sakru came out of  their houses.  Appellant was carrying a bow and arrows and other accused  persons were having stones in their hands.  Appellant wanted to know from  the deceased as to why a complaint had been made by him in regard to  cutting of Mahua tree before the Ranger.  They started abusing them.   Appellant shot an arrow which pierced the left side of the chest of the  deceased.  PW-2 and other witnesses tried to intervene, whereupon other  accused persons started pelting stones. Chamru allegedly threw a stone  which hit the shoulder and right parietal region of Hari Singh (PW-2).  On  receipt of injuries, the deceased Indar Singh tried to run away from the scene  of occurrence.  He took out the arrow and threw away the same.  He,  however, after going  a few steps fell down.  He was brought to the hut and  after some time he succumbed to his injuries.  A First Information Report  was lodged by PW-2 before the Police Station which was situated at a  distance of 14 k.m. from the place of occurrence.  Before the learned Trial  Judge, seven witnesses were examined on behalf of the prosecution.  The  learned Trial Judge upon considering the materials brought on record found  all the accused persons guilty of commission of murder of Indar Singh and  causing voluntary hurt to PW-2, stating :

       "Thus after the discussion of entire evidence I have  come to the conclusion that the prosecution has  succeeded in proving that on 27.10.90 the accused  persons formed unlawful assembly for the common  object of causing murder of Indar Singh at Village  Thekakund and in prosecution of the common object of

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 4  

that assembly, the accused persons armed with deadly  weapons arrow and bow and stone, caused riots and  being the member of unlawful assembly in prosecution of  common object of that assembly, shot an arrow on Indar  Singh with intention and knowingly caused death by  committing murder of Indar Singh and being the member  of that unlawful assembly in prosecution of common  object of that assembly voluntarily caused hurt to Hari by  pelting stones.

       Consequently I find the accused persons guilty for  the offences under sections 148, 302/149, 323/149 I.P.C.   Judgment is adjourned for hearing on the point of  sentence."

       In regard to the quantum of punishment, it was stated as under :

       "Accused persons heard on the point of sentence.   It is argued on behalf of the accused persons that this is  their first offence, hence they be dealt with liberally on  the point of sentence.  Looking to the nature of offences  the accused persons are sentenced to undergo rigorous  imprisonment for 2-2 years each for the offence u/s 148  IPC.  For the offence u/s 302/149 I.P.C. to undergo life  imprisonment each and fine of Rs.500/- (Rs. Five  hundred) and in default of payment of fine, they will  suffer further simple imprisonment for six months and  for the offence punishable under section 323/149 of  I.P.C.,  they are sentenced to undergo R.I. for six months.   All the sentences of the accused persons to run  concurrently.  Detention period of the accused persons be  set off from the sentence."

       An appeal was preferred thereagainst by all the accused persons.  The  High Court by reason of the impugned judgment while accepting the  evidence of the prosecution opined that the appellants therein were not guilty  of the offences punishable under Sections, 148, 302/149 and 323/149 I.P.C.   But while setting aside the conviction under the said provisions Appellant  herein was found guilty of commission of the offence punishable under  Section 302 I.P.C. and sentenced to undergo imprisonment for life; and  accused Chamru was found guilty of commission of the  offence punishable  under Section 323 I.P.C. and sentenced  to undergo the imprisonment for the  period already undergone by him with a fine of Rs.500/-.

       Appellant is, thus, before us.

       Mrs. Santosh Singh, the learned counsel appearing on behalf of  Appellant, inter alia, would submit that the learned Trial Judge and  consequently the High Court failed to notice the fact that the litigations were  pending between the parties and, thus, no reliance should have been placed  upon the evidences of the prosecution witnesses and in particular the PW-2.   

       The learned counsel would contend that even from a perusal of the  evidence of PW-2, it would appear that although he claimed himself to be an  eye-witness, but curiously stated that when Indar Singh fell on the ground,  he went to him and asked as who had hurt him, which was absolutely  unnecessary.   

       It was submitted that although PW-2 made a statement before the  Court that Lakshman s/o Ram Chander and Bhupender s/o Karan Singh were  eye-witnesses, they were not named in the First Information Report.  Our  attention has also been drawn to the evidence of Sakru (PW-6) to point out  that he was also not an eye-witness as he came at a later stage.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 4  

       Ms. Vibha Datta Makhija, the learned counsel appearing on behalf of  the State, however, supported the impugned judgment.   

       Homicidal nature of death of the deceased Indar Singh is not in  dispute.  He suffered the following ante-mortem injuries :

"External Injuries : One incised perforating wound  present over 3rd rib cut off at costo-condrial junction  

Size 2.5 cm x 0.5 cm x 10.0 cm.

Bone Injury caused by hard sharp perforating  object (as an arrow)"

       Hari Singh (PW-2) also suffered the following injuries :

               "I.     Conturium on Right shoulder                         On Back size 6 cms. X 6 cms

II.     Lacerated wound present on Right frontal region  Size 2.0 cms. X 1.0 cm x 0.5 cm.

2.      Abrasion on left leg in position laterally

Size 2.0 cms. X 1.0 cm"

       The cause of death of Indar Singh, as disclosed in the Post Mortem  Report, is as under :

       "Deceased died of hemorrhage shock due to  perforating wound.  Homicidal in nature; Died within 24  hours."    

       Dr. M.S. Mangloi (PW-1), who conducted the post-mortem  examination on the body of the deceased,  in his deposition stated :

       "The post-mortem was conducted by me on the  same day at 1.30 pm.  The deceased was of normal built,  eyes were closed, pupil dilated, mouth closed and face  was pale.  Chest and lower extremities were stained with  dried blood.  Rigor mortis present on both extremities.   PM stains present on back.  On the examination of the  body, I found following  injuries on the body :

       One incised perforation wound present over 3rd rib

       At Costo-condrial junction          Size 2.5 cm x 0.5 cm x 10.0 cm."

                               xxx                     xxx             xxx

       It appears that the said injuries were caused by a  hard, sharp perforating object as an arrow.  Injuries were  Ante-mortem in nature, caused within 24 hours of my  examination.  The injuries are sufficient to cause death in  the ordinary course of nature.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 4  

       In my opinion, deceased dies due to hemorrhage   shock.  Death is homicidal in nature.  The post-mortem  report is Exhibit P-2, on which my signatures are from A  to A."           

       The First Information Report is somewhat a detailed one.  It speaks of  the mode and manner in which the incident took place.  Events taking place  immediately after the occurrence had also been stated. Hari Singh (PW-2) in  his deposition supported the prosecution case in its entirety.   

       The motive on the part of Appellant in committing the said crime has  categorically been disclosed not only in the First Information Report, but  also in the deposition of the prosecution witnesses and in particular PWs-2  and 6.  If the place where the occurrence took place is not in question, there  cannot be any doubt whatsoever that the residents of the neighbouring huts  would either see the occurrence or come out immediately thereafter.  As the  occurrence took place at about 6.00 p.m., presence of the prosecution  witnesses  cannot be doubted.  It may be that a litigation in regard to theft of  a buffalo was pending against Sakru, Chander Singh and Magan (PW-4), but  that by itself cannot be a ground for false implication of the appellant.  PW-2  is furthermore an injured witness.

       A suggestion had been given by the accused that PW-2 being armed  with a bow and arrows ran after the accused Magan to kill him, if that be so,  it was expected that the First Information Report to that effect should have  been lodged.  A question was asked to him as to whether he had gone to  Indar Singh after he fell down to ask as to who had hurt him; but then he  clarified that he had seen Indar Singh being shot with an arrow.  Yet again a  suggestion was put to him that the accused persons came barging in their  house;  if that be so, they must be held to have accepted the prosecution case  in part.

       Chander Singh (PW-3), Magan (PW-4), An Singh (PW-5) and Sakru  (PW-6) also fully supported the prosecution case.  PW-6 in his evidence  might have stated that he alone went to Indar Singh and carried him to the  hut, but the same by itself cannot be considered, in our opinion, to nullify the  effect of statements of  other witnesses.   The High Court, in our opinion,  has rightly commented that the depositions of the witnesses having taken  place after four years from the date of incident, some variation in their  statements cannot be ruled out.      

       Participation of Appellant and that of Chamru, therefore, cannot be  doubted.  A plea of right of self-defence had not been specifically raised.  A  faint attempt was, however, made in that behalf before the learned Trial  Judge alleging that during a function which took place at one Ram Singh’s  house, there had been a fight between Hari Singh, Indar Singh and Magan.   Magan was brought out of the house where the function was being held by  Hari Singh and Indar Singh.  But Sakru (PW-6) categorically stated that  there had been no such function.  Right of private defence had not been  raised by any other accused and, thus, in what circumstances, Appellant had  shot an arrow had also not been explained.  If the deceased had shot an  arrow at the appellant,  he would have suffered injuries.  None of the  accused persons had suffered any injury so as to give rise to exercise of their  right of private defence.  The learned Trial Judge as also the High Court, in  our opinion, considered all aspects of the matter and rightly found Appellant  guilty of the offence punishable under Section 302 I.P.C.

       For the reasons aforementioned, we do not find any merit in this  appeal, which is dismissed accordingly.