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2013 Supreme(MP) 573
MADHYA PRADESH HIGH COURT
A.K. Shrivastava and Smt. Vimla Jain, JJ.
Mukhram and others v. State of M.P.
Criminal Appeal No.1638 of 2001 (Jabalpur) : against the judgment and order of Third Additional Sessions Judge, Chhattarpur, passed in Sessions Trial No.31 of 2000; Decided on 22.10.2013.
Manish Awasthy and Rajkamal Chaturvedi for appellants;
Sudesh Verma, Public Prosecutor for respondent/State.
Headnote:Penal Code, 1860 -- S.302/149 -- murder of deceased -- one accused only hurled abuses to deceased -- did not cause any injury -- his act not within the purview of S.302/149 IPC -- conviction and sentence of remaining four accused justified.
Held : On scanning the evidence of the doctor as well as the post-mortem report we find that apart from gunshot injury which is said to have been caused by accused Ram Khilawan, there are several incised wounds on the person of the deceased. Needless to say appellants Mukhram, Rajkumar, Brijkishore and Nandkishore were carrying pharsa and Axe and all the eye-witnesses in their similar voice have deposed that they have caused injuries by the weapons which they were carrying to the deceased. Thus, according to us, learned trial Court did not commit any error in convicting the appellants under section 302/149 IPC except appellant No.2 Bhauram.
However, on scanning the testimony of author of the FIR, Ramdas Shukla (PW1) and other eye-witnesses, we find that although the role assigned to appellant No.2 Bhauram is that he is carrying a gun, but he had simply asked the other appellants to kill the deceased. According to us, it would not mean that his act would come within the purview of section 302/149 IPC.
[Paras 9 & 10
naM lafgrk] 1860 && /kkjk 302@149 && e`rd dh gR;k && ,d vfHk;qDr us e`rd dks dsoy xkfy;k¡ nha && dksbZ {kfr dkfjr ugha dh && mldk d`R; naM lafgrk dh /kkjk 302@149 dh ifjf/k ds Hkhrj ugha && ‘ks”k pkj vfHk;qDrksa dh gR;k ds fy, nks”kflf) rFkk naMkns’k U;k;laxrA
vfHkfu/kkZfjr % MkWDVj ds lk{; rFkk ‘ko&ijh{kk fjiksVZ dh lw{e ijh{kk djus ij gekjk fu”d”kZ gS fd canwd dh xksyh dh {kfr] tks vfHk;qDr jke f[kykou }kjk dkfjr dh tkuk crkbZ xbZ gS] ds vfrfjDr e`rd ds ‘kjhj ij vusd fNUu ?kko gSaA ;g izdV gS fd vihykFkhZx.k eq[kjke] jktdqekj] c`tfd’kksj rFkk uanfd’kksj Qjlk rFkk dqYgkM+h fy, gq, Fks rFkk lHkh izR;{kn’khZ lkf{k;ksa us ,der gksdj vfHklk{; fn;k fd mUgksaus e`rd dks mu vk;q/kksa ls {kfr;k¡ dkfjr dha tks os fy, gq, FksA bl izdkj] gekjs vuqlkj] fo}ku fopkj.k U;k;ky; us vihykFkhZ Ø-2 Hkkmjke ds flok; vihykFkhZx.kksa dks naM lafgrk dh /kkjk 302@149 ds v/khu fl)nks”k Bgjkus esa dksbZ xyrh ugha dhA
rFkkfi] izFke bfRryk fjiksVZ ds ys[k jkenkl ‘kqDyk ¼v lk 1½ rFkk vU; izR;{kn’khZ lkf{k;ksa ds ifjlk{; dh lw{e ijh{kk djus ij gekjk fu”d”kZ gS fd ;|fi vihykFkhZ Ø-2 Hkkmjke dks nh xbZ Hkwfedk ;g gS fd og canwd fy, gq, Fkk ijarq mlus dsoy vU; vihykFkhZx.kksa ls e`rd dks ekj Mkyus ds fy, dgk FkkA gekjs vuqlkj] bldk ;g vFkZ ugha gksxk fd mldk d`R; naM lafgrk dh /kkjk 302@149 dh ifjf/k ds Hkhrj vk,xkA
Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 31.8.2001 passed by learned Third Additional Sessions Judge, Chhattarpur in Sessions Trial No.31/2000 convicting the appellants under section 148 and sentencing them to suffer RI for two years and also under section 302/149 IPC and thereby sentencing them to suffer rigorous imprisonment for life with default stipulations as mentioned in the impugned judgment, the appellants have preferred this appeal under section 374(2) of the Code of Criminal Procedure, 1973.
2. In the present case there are as many as 10 accused persons namely Mukhram (appellant No.1), Bhauram ((appellant No.2), Rajkumar alias Pahalwan (appellant No.3), Brijkishore (appellant No.4), Nandkishore (appellant No.5), Ram Asre (absconding) (appellant No.6), Ram Khilawan (accused No.7 who filed a separate appeal and during pendency of that appeal he had died), Kriparam and Santkumar (accused No.8 and 9) were acquitted while accused No.10 Dadi s/o Sukhram died during the trial.
3. In brief the case of prosecution is that on 12.8.1997 eye-witnesses Ramdas and her Bhabhi Kamla (elder brother’s wife) of village Kawarau who were accompanied by Shivram of village Supa along with Devbati and wife of Ramavtar were going. It is said that Ramdas and Shivram boarded the bus from the bus stop of Mahoba and thereafter all these four persons in the bus were going to village Gahwara and alighted in village Barha. It is said that Lala Bhai (hereinafter referred to as “the deceased”) was already told that he should join these persons from Barha bus stand as a result of which Lala Bhai also joined these four persons from bus stand of village Barha. Thereafter, all these five persons started their journey from village Barha to village Gahwara as pedestrians. On the way nearby the bandhia of Dina Chamar, accused Ram Khilawan alias Khillu (who after conviction filed separate appeal and who had died during the pendency of the appeal) having a gun in his hand came out and scolded upon the deceased. However, the deceased did not pay any heed to his alarm and further proceeded to his way as a result of which said Ram Khilawan fired the gun and the gunshot fire struck the back of the deceased. On receiving the gunshot injury the deceased fell down. Thereafter, it is said that said Ram Khilawan alias Khillu again scolded upon the deceased and told other accused persons that the deceased is running away as a result of which absconded co-accused Ram Asre and other co-accused Rajkumar and Mukhram having pharsa, Kriparam, Dadi, Santkumar alias Santu, Brijkishore and Nandkumar alias Dau by carrying Axe in their hands and Bhauram carrying a gun chased the deceased. It is said that first of all Ram Asre dealt pharsa blow upon the deceased. Thereafter, Kriparam dealt axe blow. Subsequently, all the accused persons started causing injuries to the deceased. Further, it is the case of the prosecution that accused Bhauram was instigating the other accused persons by saying “maro sale ko, bach ke na jane paye” and started hurling abuses. On account of receiving injuries by the deceased, he had died. The other persons who were accompanying the deceased on seeing the incident got frightened and went to their respective houses. On the next day, Ramdas Shukla lodged the written report in the concerning police station on the basis of which FIR was registered and the case was investigated.
On lodging of the first information report the criminal law was triggered and set in motion. The investigating agency arrived at the spot; prepared the spot map; seized the dead body and sent it for post-mortem; recorded the statement of the witnesses and seized the ordinary and blood stained clothes.
4. After the investigation was over a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received for trial. The learned trial Judge on the basis of the avermen
