State of Madhya Pradesh  Insc 382 (10 April 2007)
S.B. Sinha & Markandey Katju
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
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,
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 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.
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.
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
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.