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PETITIONER: HARNAM SINGH AND ORS.

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT12/12/1995

BENCH: KIRPAL B.N. (J) BENCH: KIRPAL B.N. (J) MUKHERJEE M.K. (J)

CITATION:  JT 1995 (9)   178        1995 SCALE  (7)127

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T KIRPAL, J.      The appellants  were tried  for offences under Sections 147, 148  and 302 of the Indian Penal Code (for short ’IPC’) or in  the alternative  under Section  302 read with Section 149 on  the allegation  that they  had committed rioting and that  while  being  armed  with  deadly  weapons,  they  had committed murder  of Deokaran  Singh or, in the alternative, they all  committed his  murder  in  prosecution  of  common object of  unlawful assembly of which these seven appellants were members  on 21st  September, 1979, at 5 p.m. at village Baghwar, P.S. Kareli.      The Sessions  Judge, Narsinghpur  by his judgment dated 8th February,  1980, acquitted  the  appellants.  The  State filed an  appeal  against  acquittal  and  the  son  of  the deceased - Deokaran Singh also filed a revision application. The High  Court came  to the conclusion that the judgment of the trial  court was  perverse and,  on the appraisal of the evidence, it  set aside  the acquittal of the appellants and convicted each  one of  them under  Section 304 Part-II read with Section  149 IPC.  Different sentences were imposed. It is against  this judgment  that appeal  by special leave has been filed.      The case  of the  prosecution was  that prior  to  21st September, 1979, the date of the incident, construction of a road from  Kareli to  Baghwar had  commenced. The contractor for the work was one Jethabhai (CW-1). The construction work was being  done near  the huts  of Hari  Ram  and  Sukh  Ram (father of  Sushilabai PW-3).  As there  were disputes  with regard to  the location  of the road in the village, opinion of the  members of the Gram Panchayat had been sought by the contractor a  couple of  days earlier.  One opinion was that the road  should pass near the huts of Hari Ram and Sukh Ram which  would  involve  damaging  their  huts  and,  to  this proposal, the  deceased Deokaran  Singh was  opposed. It  is alleged  that  on  the  morning  of  21st  September,  1979,

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Deokaran Singh had protested against the construction of the road which  would result  in the  damage to  the huts of the poormen and,  therefore,  the  work  appears  to  have  been deferred. Later  that day  at about  5 p.m.  Deokaran  Singh again passed  that way and he found that the construction of the road  had begun in a manner which would adversely affect the huts  of Hari  Ram and  Sukh Ram. He again protested. It was then  that a  number of persons assaulted Deokaran Singh with pick-axe,  axe and  spade etc.  which  implements  were being  used  in  the  construction  work  and  were  readily available at  the spot, thereby causing injuries to Deokaran Singh which led to his death on the spot.      According to  the prosecution  when Deokaran  Singh had opposed the  construction of the road and the contractor not having agreed to the construction in view of the opposition, the appellants  themselves had  commenced  the  construction work. When Deokaran Singh had appeared on the scene at about 5 p.m.  and had  protested, then  Appellant No.5  - Inder is alleged to  have called  out to  kick Deokaran  Singh in the face and  this was  followed by an assault on Deokaran Singh by all  the appellants headed by Harnam Singh-Appellant No.1 who gave  the first  blow with  a pick-axe  on the  head  of Deokaran Singh.      According to  the prosecution the eye-witnesses to this incident were  Trilok Singh  (PW-1), Sushilabai (PW-3), Daya Ram (PW-4), Rajindra Singh (PW-5) and Devi Singh (PW-7). The first information  report was  lodged by Trilok Singh (PW-1) at 6.00  p.m. on  that very evening at Police Station Kareli wherein all  the appellants  herein were named as assailants of his  father  Deokaran  Singh.  The  prosecution  did  not examine Jethabhai  as its  witness but  during the course of the trial the court itself examined the contractor-Jethabhai (CW-1) as  a court witness since his presence at the time of the incident was admitted by all concerned.      The appellants  herein mainly  disputed the identity of the culprits.  The fact that Deokaran Singh was assaulted on 21st September,  1979, and the place of the incident and the nature of  his injuries  were not in dispute. Appellant No.3 Narendra Singh  in fact  stated that  he was  present in the village and had heard about the murder of Deokaran Singh and he had  gone to  the Police Station Kareli to make a report, even though  he himself  was  not  there  at  the  place  of occurrence. Appellant  No.3 is  stated to  have found Trilok Singh (PW-1)  and his  doctor brother  at the Police Station Kareli when  they had  come to  report the incident. All the appellants denied any participation in the incident and they alleged  that   they  had   falsely  been   implicated.  The appellants examined  one Dharamvir  (DW-1) in  their defence who was  alleged to  be a partner of Jethabhai (CW-1) in the contract and  was  stated  to  be  an  eye-witness  to  this incident. The  said DW-1  claimed that  he had  come to  the court on  his own  on hearing of the case and he stated that he did  not disclose  to anyone,  before  appearing  in  the court, that  he was  an eye-witness.  According to Dharamvir the  assailants   were  unknown  persons  from  amongst  the labourers who  were doing  the  construction  work  and  the appellants were not the assailants.      While  acquitting   the  appellants,  the  trial  court primarily relied  upon the  testimony of Dharamvir (DW-1) by treating him  to be  an eye-witness  and had also taken into account the  part of  the case  diary statement of Jethabhai (CW-1)  which   he  had   denied  making  at  any  time,  as substantive evidence,  to hold  that  the  identity  of  the assailants was  unknown. The  testimony of the eye-witnesses was rejected  by the  trial court as being unreliable mainly

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on the  ground that  their version about the identity of the assailants was  in conflict  with the testimony of Dharamvir and the case diary statement of Jethabhai.      The High  Court,  as  already  observed,  examined  the entire  evidence   and  came  to  the  conclusion  that  the acquittal of  the appellants  was perverse  and the same was set  aside   because,  according  to  the  High  Court,  the conclusion which had been reached by the trial court was not at all  plausible in the light of the over-whelming evidence against the appellants.      In arriving at the aforesaid conclusion, the High Court recorded that  the counsel  for the  appellants had  himself placed reliance on the testimony of Jethabhai (CW-1) and had conceded that  his testimony could not be rejected. The High Court observed  that in  view of  this Appellant No.1-Harnam Singh, who was specifically named by Jethabhai, he could not be acquitted  and that  Jethabhai’s version  was  consistent with the  testimony of  other eye-witnesses  examined by the prosecution for  the purpose  of fixing  the identity of the other assailants, whom Jethabhai could not specifically name even though  he identified  them by  face in  the court. The High Court  also came to the conclusion that the evidence of the other  eye-witnesses was  reliable and that Trilok Singh (PW-1), who  was the  son of the deceased and had lodged the first information  report, was  a witness  to the  incident. While taking  into account  the evidence of Dr. Chouhan (PW- 6), with  regard to  the nature  of injuries, the High Court considered it  safer to hold that the offence which had been made out  fell under  section 304,  Part II,  I.P.C. and not under section  302 I.P.C. Consequently, while convicting the appellants  herein,   Harnam  Singh-Appellant   No.1,  Anil- Appellant No.4  and Seth-Appellant  No.7 were each sentenced to seven  years rigorous  imprisonment because  Harnam Singh had inflicted  the first blow with a pick-axe on the head of the deceased  and the  Appellant No.4 and Appellant No.7 had inflicted blows  on the  neck with axe. The other appellants were each sentenced to five years rigorous imprisonment.      As in  the High  Court, the  only contention  which has been raised  by Mr.  U.R. Lalit,  learned senior counsel for the appellants,  is  that  they  were  not  the  assailants. According to the learned counsel it is because of the enmity between the parties, namely, the appellants and Trilok Singh (PW-1) that  the appellants  have wrongly  been  accused  of having committed  a crime. The appellants, it was submitted, were not  present at  the scene  of  the  incident.  It  was further contended  that the  trial court  had dealt with the testimony of  each of the witnesses very elaborately and had given cogent reasons for coming to the conclusion that their testimony could not be believed. With regard to the evidence of Jethabhai,  it was  argued that  his evidence was suspect and, in  any case,  section 149 I.P.C. was not applicable on the facts of the present case.      In  our  opinion,  the  well  considered  and  reasoned judgment of  the High  Court calls  for no interference. The counsel for  the appellants  had,  before  the  High  Court, conceded that the testimony of Jethabhai (CW-1) could not be rejected. Faced  with this  difficulty, Mr.  Lalit contended that Jethabhai, at best, had only identified Harnam Singh as one of the assailants and the evidence of Jethabhai does not show that  Trilok Singh  (PW-1) was  present at  the time of incident and, therefore, he could not be regarded as an eye- witness.      Jethabhai (CW-1)  had stated  that  except  for  Harnam Singh, whom  he had  known earlier,  he had  seen the  other appellants only  on the date of incident. In his evidence he

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stated that on 21st September, 1979, he had gone to the site of construction  at about  4.00 P.M.  or 4.30 P.M. by motor- cycle. He  saw the  work was  in progress  but none  of  his labourers were  working  there.  There  were  six  or  eight persons who  were working,  out of which he knew only Harnam Singh. He  further stated that six to seven persons who were digging the  soil pounced  upon deceased  and assaulted him. Thereupon, he  got frightened and pulled his son and mounted on his  motor-cycle and  set-forth  to  Kareli.  He  further stated that  he went  to the dispensary of the deceased son, who was a doctor, and when he was informing about the fight, Trilok Singh  (PW-1) came  there and  told his  brother, the doctor, that  the appellants  had killed  their  father.  In answer to  a question  by the  public  prosecutor  Jethabhai stated "Today  I can  say that those accused who are present in the  court they  had  assaulted  Babulal.  I  have  heard Babulal’s name only to be Babulal not any other". It appears that Babulal  was the other or common name of Deokaran Singh as the  witness has  specifically stated  that  he  was  the father of  Trilok Singh (PW-1) and it is not in dispute that Trilok Singh is the son of the deceased.      In view  of the  aforesaid testimony,  the  High  Court rightly came  to the  conclusion that  the same corroborated the evidence  of Trilok  Singh (PW-1)  because, according to Jethabhai, when  he was at the dispensary of deceased’s son, Trilok Singh  had come  in and had informed his brother that their father  had been  killed. From  this  the  High  Court concluded, and  in our  opinion correctly, that Trilok Singh knew about  the death  of his  father and that knowledge was not acquired  from Jethabhai,  as was sought to be contended by the appellants.      We have  referred to  the evidence of Jethabhai in some detail in  order to  satisfy ourselves  that the  conclusion arrived at  by the  High Court,  which was hearing an appeal against acquittal,  does not  suffer from  any infirmity. We have also  examined the statements of other witnesses and of Sushilabai (PW-3)  in particular  in whose  land the alleged digging was  taking place and who had clearly identified the appellants in  her testimony  and we  find that there was no reason as  to why the eye-witnesses cited by the prosecution should have  been disbelieved.  The High  Court has  rightly noticed that  the first  information report  was lodged very promptly and  the names  of the  appellants  were  mentioned therein as assailants. We are in complete agreement with the High  Court   that  the   identity  of  the  assailants  was established and  that it  is the  appellants herein  who had inflicted the injuries on Deokaran Singh alias Babulal which had resulted in his death.      The conviction under section 304 Part II I.P.C. and the sentences imposed  upon the appellants by the High Court are upheld and  this appeal is dismissed. The accused who are on bail will now surrender to their bail bonds to serve out the requisite sentences.