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CASE NO.: Appeal (crl.)  258 of 2005

PETITIONER: Bhagga and Ors

RESPONDENT: State of M.P

DATE OF JUDGMENT: 11/10/2007

BENCH: P.P. Naolekar & Altamas Kabir

JUDGMENT: J U D G M E N T

Altamas Kabir,J.

1.      This appeal by way of special leave granted on 4th  February, 2005, is directed against the judgment and  sentence passed by the Madhya Pradesh High Court on 31st  October, 2003, affirming the judgment of the second  Additional Sessions Judge, Shivpuri, (M.P.) in Session  Trial No. 133 of 1987 convicting the appellants under  Sections 148, 302/149 and 323/149 of the Indian Penal  Code and sentencing them for two years R.I. under  Section 148 and for life imprisonment under Section  302/149 and for one year R.I. under Section 323/149  Indian Penal Code. 2.      Of the 12 accused persons, who had originally been  charge-sheeted, Shyamlal s/o Munna was found not guilty  of the charges against him and he was, therefore,  acquitted.  Apart from Shyamlal s/o Munna, one other  accused, Jairam, was found to be a juvenile during the  course of trial and his case was accordingly separated  and sent to the Juvenile Court for disposal.        3.      Consequently, only 10 of the 12 accused persons  filed Criminal Appeal No. 30 of 1989 before the Madhya  Pradesh High Court, which affirmed the judgment of  conviction and sentence passed by the learned Sessions  Judge.  All the said 10 accused are also the appellants  in this appeal.               4.      The case made out by the prosecution is that on 4th  June, 1986, all the appellants who were armed with  lethal weapons such as axe, lathi and Lohangi gathered  at Village Burhanpur under Bamorkalan Police Station and  formed an unlawful assembly and after entering the house  of one Babulal, committed his murder and caused injury  to his wife, Raina Bai.        5.      The facts leading to the aforesaid incident is that  appellant Malkhan is alleged to have cut down two Khair  trees from the field of deceased Babulal.  Babulal  thereupon asked Malkhan to return the trees and Malkhan  is said to have promised to return the trees cut by him  to Babulal.   On 4th June, 1987 at about 7 in the

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morning, Malkhan went to Babulal\022s house and told him to  take back the trees which had been cut down by Malkhan.   Once Babulal reached Malkhan\022s house, he was assaulted  by all the appellants.   The incident was witnessed by  Raina Bai (P.W.1), Raj Kumari Bai (P.W.4), Gyan Bai  (P.W.6), Bhawani Singh (P.W.7), Harkunwar (P.W.8) and  Lakhan Singh (P.W.14).                 6.      It is the further case of the prosecution that when  Raina Bai and Gyan Bai tried to intervene, they too  suffered injuries.  Due to severe assault on Babulal he  succumbed to his injuries and during post mortem the  doctor found as many as 10 injuries, which in the  opinion of doctor was the cause of Babulal\022s death,  which was homicidal in nature.               7.      Relying on the evidence of Raina Bai (P.W.1), Raj  Kumari Bai (P.W.4) and Gyan Bai (P.W.6), the High Court  was of the view that the evidence of the eye-witnesses  was relevant and cogent and that the trial court after  appreciation of the evidence had convicted the  appellants.   The High Court also observed that from the  evidence the presence of the injured witnesses at the  place of occurrence could not be doubted and their  evidence inspired confidence.  Consequently, the High  Court dismissed the appeal.               8.      The evidence as adduced by the prosecution  indicates that on the day of incident Raj Kumari (P.W.4)  was present at the house of her maternal uncle, Tej Raj,  at Burhanpur.  In the morning at 7 a.m. she had come out  of the house to throw cow dung, when she heard a  commotion from the side of the house of Shyamlal,  Malkhan and Santosh.  On hearing the commotion, she went  to the spot and saw Malkhan, Santosh, Munna, Ramcharan  and other accused, who were present in the Court,  assaulting Babulal.  She then went and informed Raina  Bai (P.W.1) who is her sister-in-law that the accused  persons were assaulting Babulal.   She and Raina Bai  came to the place of occurrence and saw Munna and  Malkhan armed with Lohangis, Harnam and Shyamlal son of  Balu armed with axes and the remaining accused persons  armed with lathis and they were all beating Babulal.   According to P.W.-1 when she tried to rescue Babulal  from the accused persons she too was assaulted and  accused Munna hit her with a Lohangi on the left hand,  on the shoulder, right elbow and thigh. It is also in  her evidence that her elder brother-in-law Bhawani  Singh, elder sister-in-law, Raj Kunwar, Lakhan Singh and  Har Kunwar also reached there.  Thereafter, the accused  persons took Babulal inside Malkhan\022s house.               9.      P.W. 6 Gyan Bai\022s evidence indicates that on the  day of incident she was in her house when Raina Bai and  Harkunwar came and told her that her son had been  killed.  She then went to the house of Malkhan and saw  that the accused had confined her son inside the house.   She too deposed that Malkhan, Kalyan, Munna and Shyamlal  were armed with Lohangis, Santosh was armed with lathi  and Harnam was armed with an axe.   On her protests  Kalyan and Munna dropped her at the door-step of the

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house from where she saw blood flowing from the mouth of  her son Babulal, as Santosh had hit him on the mouth  with a lathi.  At the same time she also deposed that  Harnam hit Babulal with an axe while Shyamlal son of  Balu hit him with Lohangi and Ramcharan hit him with  lathi.   She also deposed that her elder son, Bhawani  Singh and daughter-in-law, Raj Kunwar reached the place  of occurrence at the same time.   Both Bhawani Singh and  Raina Bai went to Banmore Police Station and later on  Head Constable of Police came to the spot and recorded  the statement of Babulal which was subsequently treated  to be his dying-declaration.  P.W.-7 Bhawani Singh,  P.W.-8 Har Kunwar, P.W.-9 Amol Singh, P.W.-14 Lakhan  Singh have all supported the prosecution case and  reiterated that the appellants had surrounded Babulal  and had assaulted him with different weapons, as a  result of which he fell down and subsequently the  accused persons lifted him and took him into the house  of Malkhan.               10.     The defence taken on behalf of the accused was that  all the accused are members of the same family and in  the same way the deceased and all the eye-witnesses were  also members of the same family and that exhibit P6 and  P7 would reveal that there was continuous enmity between  the two families.  According to the defence, only family  members of the deceased had been examined as witnesses  on behalf the prosecution and although many villagers  had assembled at the spot, no independent witness was  examined by the prosecution.   It was also the case of  the defence that there were several discrepancies in the  statement of the witnesses recorded in court and in the  FIR as also the police statement, dying declaration and  doctor\022s evidence.  It was contended that there was  contradiction even in regard to the place of incident.    Furthermore, no human blood was found on the weapons  recovered and no motive as such had been attributed to  the accused persons for committing Babulal\022s murder.               11.     As indicated hereinbefore, placing reliance on  P.W.1, P.W.4 and P.W.6 who had witnessed the assault on  Babulal by the accused persons and Babulal\022s dying  declaration before the Head Constable, Dayanand Tyagi  (P.W.15), the trial court was satisfied that the  prosecution had been able to prove its case fully and  accordingly convicted all the accused persons as  mentioned hereinabove.               12.     The High Court agreed with the findings of the  trial court as to the veracity of the evidence of the  eye-witnesses and maintained the order of conviction and  sentence.        13.     During the hearing of the appeal, we had occasion  to look into the evidence of the eye-witnesses on which  reliance has been placed by both the courts below and  the names of Malkhan, Santosh, Harnam, Munna, Ramcharan,  Shyamlal and Kalyan have been attributed specific roles  by PWs 1,6,7 and 14, who claimed to have witnessed the  assault on Babulal.  Of course, P.W.4 who was the first  witness to witness such assault has initially named only  Malkhan, Santosh, Munna and Ramcharan as having

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assaulted the deceased, but from her deposition it is  quite possible that she did not witness anything further  after coming back to the place of occurrence with P.W.1  Raina Bai. Apart from Shyamlal s/o Munna who was  acquitted by the Trial Court, the role attributed to   Bhagga, Shankara and Bahadura by the prosecution  witnesses appears to be doubtful. As mentioned  hereinbefore, P.W.4 Raj Kumari appears to have been the  first witness from the side of the prosecution to have  witnessed the assault on the deceased, Babulal and she  has specifically named Malkhan, Santosh, Munna and  Ramcharan as the persons who along with the other  accused were assaulting Babulal. When she returned to  the spot along with her sister-in-law, Raina Bai, the  name of Harnam was added.   However, it may be pointed  out that from the evidence of P.W. 4 it appears that on  returning with Raina Bai to the place of occurrence she  remained at some distance, and Raina Bai alone went to  the actual spot.   Raina Bai, thereafter, named Bhagga,  Kalyan, Ramcharan and Shankara as being the other  persons who were assaulting her husband.   P.W.6, Gyan  Bai, has also named Kalyan who was present and had  assisted Malkhan in carrying her and throwing her down  at Malkhan\022s door-step. She has also alleged that  Malkhan and Kalyan caught hold of both her hands and put  their legs on her waist.  P.W.7 Bhawani Singh and P.W.14  Lakhan Singh mention that Bahadura and Shankara  alongwith the others had surrounded Babulal and were  assaulting Babulal.  Except for making such a general  statement, no specific role has been assigned to them in  regard to the incident.        14.     Apart from the fact that all the eye-witnesses were  consistent about the incident and involvement of  Malkhan, Santosh, Munna, Ramcharan, Harnam, Shyamlal and  Kalyan, there is also Babulal\022s dying declaration which  implicates all the accused persons, except Shayamlal son  of Munna.  The evidence of P.W.12 Dr. Ramesh Kumar who  performed the post mortem on the deceased and the  injuries found by him on the body of the deceased is  consistent with the prosecution case of assault of the  victim by the accused persons.         15.     PWs 1,4 and 6 have been believed both by the trial  court and the High Court, but having regard to the fact  that P.W.4 on returning to the spot with P.W.1 remained  at a distance of about 100 yards and also having regard  to the fact that the eyesight of P.W.6 was weak, we will  have to treat their evidence with caution.  As held by  both the courts below, the mere fact that all the said  eye-witnesses belong to one family cannot be a reason to  disbelieve their evidence, since they were all on the  spot or nearby the spot when the incident occurred.   There is also no reason to disbelieve the dying  declaration of the deceased in its entirety, but having  regard to some amount of discrepancy in the evidence of  the eye-witnesses, we are inclined to hold that the  common object of all the accused to kill Babulal has not  been established by the prosecution and Bhagga, Shankara  and Bahadura, who are the appellant Nos. 2, 4 and 10  before us are entitled to be given the benefit of doubt.                      16.     It may be mentioned that upon his failure to

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surrender, the special leave petition of Santosh was  dismissed on 30th August, 2004.        17.     Accordingly, we allow the appeal in part.  The  judgment of conviction and sentence of the trial court  as confirmed by the High Court is affirmed as far as  Harnam,  Shyamlal, Kalyan, Munna and Malkhan are  concerned.  The said appellants, if on bail, shall  surrender before the Chief Judicial Magistrate,  Shivpuri, within a month from date to undergo their  sentence. If the said appellants fail to surrender in  terms of this order, the Chief Judicial Magistrate,  Shivpuri, shall take steps to ensure that the said  appellants are apprehended and made to undergo their  sentence. The bail bonds, if any, in respect of these  appellants shall stand cancelled.               18.     The appeal is allowed as regards Bhagga, Shankara  and Bahadura.  The judgment of the trial court as  affirmed by the High Court are set aside as far as they  are concerned.  Their bail bonds, if any, are discharged  and they be set at liberty forthwith, if not required in  connection with any other case.