Babulal Yadav vs The State Of Madhya Pradesh

NEUTRAL CITATION NO. 2024:MPHC-JBP:46758

1 Cr.A. Nos.2642/2008 and 87/2009

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR BEFORE HON'BLE SHRI JUSTICE G. S. AHLUWALIA & HON'BLE SHRI JUSTICE VISHAL MISHRA ON THE 18th OF SEPTEMBER, 2024 CRIMINAL APPEAL No. 2642 of 2008 RAVINDRA YADAV AND OTHERS Versus THE STATE OF MADHYA PRADESH

Appearance: Shri Sankalp Kochar - Advocate for appellants. Shri A.S. Baghel - Government Advocate for the respondent/State.

WITH CRIMINAL APPEAL No. 87 of 2009 BABULAL YADAV Versus THE STATE OF MADHYA PRADESH

Appearance: Shri S.K. Dixit - Advocate for appellant. Shri A.S. Baghel - Government Advocate for respondent / State.

Reserved on : 05/09/2024 Pronounced on : 18th/09/2024 JUDGMENT

Per: Justice G.S. Ahluwalia By this common Judgment, Cr.A. No. 2642 of 2008 filed by Ravindra Yadav, Nathu Yadav, Indrapal Yadav, Goverdhan Pal and

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2 Cr.A. Nos.2642/2008 and 87/2009

Ghooman Yadav and Cr.A. No. 87 of 2009 filed by Babulal shall be decided.

2. Both the appeals have been filed under Section 374(2) of Cr.P.C., against the Judgment and Sentence dated 29-11-2008 passed by 6th Additional Sessions Judge (Fast Track Court), Chhatarpur by which the appellants have been convicted and sentenced for the following offences :

S.No. Name of Offence under Sentence Appellant Section 1 Ravindra 148 of IPC 1 year R.I. 323/149 of IPC 1 year R.I. (three counts)

325/149 of IPC 3 years R.I. and fine of Rs.1,000/- in default 6 months R.I. 302/149 of IPC Life Imprisonment and fine of Rs.1,000/- in default 6 months R.I. 2 Nathu 148 of IPC 1 year R.I. (Died during 323/149 of IPC 1 year R.I. pendency of (three counts) appeal) 325/149 of IPC 3 years R.I. and fine of Rs.1,000/- in default 6 months R.I. 302/149 of IPC Life Imprisonment and fine of Rs.1,000/- in default 6 months R.I. 3 Indrapal 148 of IPC 1 year R.I. 323/149 of IPC 1 year R.I. (three counts)

325/149 of IPC 3 years R.I. and fine of Rs.1,000/- in default 6 months R.I. 302/149 of IPC Life Imprisonment and

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fine of Rs.1,000/- in default 6 months R.I. 4 Goverdhan Pal 148 of IPC 1 year R.I. 323/149 of IPC 1 year R.I. (three counts)

325/149 of IPC 3 years R.I. and fine of Rs.1,000/- in default 6 months R.I. 302/149 of IPC Life Imprisonment and fine of Rs.1,000/- in default 6 months R.I. 5 Ghooman 148 of IPC 1 year R.I. 323/149 of IPC 1 year R.I. (three counts)

325/149 of IPC 3 years R.I. and fine of Rs.1,000/- in default 6 months R.I. 302/149 of IPC Life Imprisonment and fine of Rs.1,000/- in default 6 months R.I. 6 Babulal 148 of IPC 1 year R.I. 323/149 of IPC 1 year R.I. (three counts)

325/149 of IPC 3 years R.I. and fine of Rs.1,000/- in default 6 months R.I. 302/149 of IPC Life Imprisonment and fine of Rs.1,000/- in default 6 months R.I.

All sentences to run concurrently.

3. The prosecution story in short is that on 17-3-2006 at about 11.45 P.M., the complainant Rakesh lodged a report alleging that 2 days prior to the date of incident i.e., 17-3-2006, Rakesh and his father were working in their field. At that time, the father of Ravindra scolded that their cattles

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cause damage to the crop. Father of Rakesh replied, that a panchayat may be summoned and whatever damage is caused by their cattles, will be compensated by him. It was replied by father of Ravindra that compensation would not be sufficient and his eyes would be taken out. On the next day, the mother of Ravindra declared that Mahabharat would take place. On 17-3-2006, when Rakesh was going to deliver food to his Baba Chhandu Yadav, then near the Beda of Pandey, Indrapal assaulted him on his back by means of lathi, which landed on his shoulder. On raising alarm, Indrapal called the other accused persons by using abusive language as a result, Babu Yadav with lathi, Ghooman Yadav with Ballam, Ravindra Yadav with axe, Goverdhan and Nathu with lathi came and instigated that he should not survive. On hearing his alarm, his Baba Chhandu Yadav, father Rajaram Yadav, Vir Singh, Shanker Singh who were in the field, came there in order to save him. Then the accused persons assaulted on the head of his father Rajaram. Ravindra gave two axe blows on the head of Rajaram, as a result Rajaram sat down by catching hold of his head and started shouting. Ghooman gave a ballam blow on the leg of Rajaram. His Baba laid down on Rajaram in order to save him. Then Nathu Yadav, Goverdhan Yadav started assaulting him by lathi whereas Ravindra assaulted on the head of his baba by axe. They caused multiple injuries to Rajaram and his Baba. His uncle Vir Singh, Shanker tried to intervene then they too were assaulted by the accused persons, as a result they too received multiple injuries. All of them were shouting. Gorelal, Suraj Yadav, his mother, Aunt and various other villagers intervened in the matter. It was further alleged that if the villagers had not intervened, then the accused would have killed them.

4. Accordingly, Police Station Bamnora registered an offence under Sections 341, 324, 323, 147, 148, 149, 307 of IPC. The injured were sent

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for medical examination and were referred to Chhatarpur. The injured

Chhandu Yadav died on the way which was informed to Police Station Bamnora. The S.H.O. prepared Lash Panchnama in Badamalhara and sent the dead body to Hospital Badamalhara for postmortem. The spot map was prepared by the I.O. on his own. The statements of witnesses were recorded. The accused persons were arrested. Axe was seized from Rajaram, Ballam was seized from Ghooman, and lathis were seized from other accused persons. The blood stained cloths of deceased Chhandu Yadav were seized from hospital. Blood stained cloths of Rajaram were also seized. The seized articles were sent for forensic examination to F.S.L. Sagar. After completing the investigation, police filed the charge sheet.

5. The Trial Court by order dated 1-6-2006 framed charges under Sections 147, 148, 323/149, 302 or in alternative 302/149, 324, 325/149, 323/149 of IPC.

6. The appellants abjured their guilt and pleaded not guilty.

7. The prosecution examined Harlal (P.W.1), Rakesh Yadav (P.W.2), Shanker Yadav (P.W.3), Dr. G.L. Ahirwar (P.W.4), Pappu Yadav (P.W.5), Murlidhar Sirotiya (P.W.6), Dr. N.K. Barua (P.W.7), Rajaram (P.W.8), Gopinath Dixit (P.W.9), Vir Singh (P.W.10), Gorelal Yadav (P.W.11), Bharatlal Tiwari (P.W.12), Ram Swaroop Mishra (P.W.13), Dr. M.P.N. Khare (P.W. 14), Ramesh Yadav (P.W.15), Dharmendra Bedi (P.W.16), Bandulal (P.W. 17), Sarju (P.W.18), Rajaram (P.W.19), Dr. V.K. Sharma (P.W.20), and A.K. Rai (P.W.21).

8. The appellants examined Basanti Yadav (D.W.1), and Ratiram (D.W.2) in their defence.

9. By the impugned judgment and sentence passed by the Court below, the appellants have been convicted and sentenced for the offences mentioned above.

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6 Cr.A. Nos.2642/2008 and 87/2009

10. It is not out of place to mention here that on 17-3-2006, FIR No 15/2006 was also lodged against the complainant party namely Rajaram, Vir Singh and Shanker. They were tried for offence under Sections 323/24, 324/34 (on three counts) and 294/34 of IPC.

11. By Judgment dated 29-11-2008 passed by 6th Additional Sessions Judge (Fast Track Court) Chhatarpur in S.T. No.197/2006, the complainant party has been acquitted and according to the Counsel for the appellants, their acquittal has not been challenged either by the appellants or by the State. Thus, the prosecution has failed to prove that either the complainant party was aggressor or they caused any injury to Ghooman, Ravindra and Goverdhan.

12. It is also not out of place to mention here that Nathu, Appellant No. 2 in Cr.A. No.2642 of 2008 has expired and a verification report has also been filed by State Counsel. Thus, appeal filed by Nathu is hereby dismissed as Abated.

13. Challenging the Judgment and Sentence passed by the Court below, it is submitted that the ocular evidence is contrary to the medical evidence. Although it was alleged that injuries were caused by Ravindra by axe, but no incised wound was found on the body of any of the injured witness or deceased. It was fairly conceded that in view of acquittal of complainant party in the cross-case, it is not open for the appellants to claim that they had acted in private defence. However, it is submitted that since, the incident took place without any premeditation, therefore, the offence would fall under Section 304 Part 1 of IPC. The Counsel for the Appellants relied upon the judgments passed by the Supreme Court in the case of Lakshmi Singh Vs. State of Bihar reported in (1976) 4 SCC 394, Nachhattar Singh Vs. State of M.P. reported in (1976) 1 SCC 750, Krishnegowda and others Vs. State of Karnataka reported in (2017) 13 SCC 98,

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7 Cr.A. Nos.2642/2008 and 87/2009

Thaman Kumar Vs. State reported in (2003) 6 SCC 380, Darshan Singh Vs. State of Punjab reported in (2010) 2 SCC 333, Suresh Singhal Vs. State reported in (2017) 2 SCC 737, Hallu Vs. State of M.P. reported in (1974) 4 SCC 300, and Prem Narayan Vs. State of M.P. reported in (2007) 15 SCC 48.

14. Per contra, the Appeals have been vehemently opposed by Counsel for State.

15. Heard the learned Counsel for the parties.

16. Before considering the fact as to whether the appellants have committed any offence or not, this Court would like to consider the nature of injuries sustained by deceased and the injured persons.

17. Dr. N.K. Barua (P.W.7) medically examined Chhandu Yadav and found the following injuries on his body :

(i) Abrasion present on the upper part of forehead seize 1x1 cm;

(ii) Lacerated wound present on the upper head size 2 x 1 x ½ cm;

(iii) Abrasion present on the right side of the head size 1 x 1 cm;

(iv) Abrasion present on the left side of ear;

(v) Contusion present on the elbow color blue on right hand;

(vi) Lacerated wound present on the left hand elbow size 1 x 1 x ½ cm;

(vii) Contusion present on the back side of lumber region;

(viii) Abrasion present on the right leg of lower knee size 1 x 1 cm or just lower 1 x 1 cm front of tibia.

The MLC report is Ex. P. 8.

18. Dr. G.L. Ahirwar (P.W.4) conducted the post mortem of Chhandu Yadav and found the following injuries :

An average sixty five years of a deceased male body lies on PM table wearing white light dirty colour kurta blood stained and dhoti white Dhoti white colour dirty Rigor

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8 Cr.A. Nos.2642/2008 and 87/2009

mortis present in initial phase of the mortis in both upper and lower limbs. Pupil dilated (illegible) hazy. Partially open, mouth semi open. Injury and (illegible). There is bandage over the forehead and occipital region of the scalp. On removal of the bandage there is a :

(i) Stitched wound 7.0 cm x 1.5 cm x scalp deep (four stitch);

(ii) Non stitched wound 4.1 cm x 1.5 m x scalp deep on the forehead;

(iii) Abrasion 4.1 cm x 1.5 cm over the right tibia;

(iv) Abrasion 3.5 cm x 0.25 cm (illegible) of elbow;

(v) Abrasion 3.2 cm x 0.25 cm right of elbow;

(vi) Abrasion 3.1 cm x 0.5 cm (illegible) elbow;

(vii) Abrasion 1.5 cm x 0.5 cm left elbow;

On dissection of skull, under the skin of the scalp, forehead there is a clotted blood and the dura matter was lacerated. On internal examination :

Dura matter was torn over the posterior part of occipital region and brain hemorrhage was found.

Cause of death is head injury to the vital part as a result of hemorrhage and shock Time since death is within twelve hours of P.M. Injuries caused by hard and blunt object.

The Post mortem Report is Ex. P.6.

19. Dr. G.L. Ahirwar (P.W.4) was cross-examined but no question was put to him, which may demolish his evidence. Thus, it is clear that the death of Chhandu Yadav was homicidal in nature.

20. Dr. N.K. Barua (P.W.7) had also medically examined Rajaram and found following injuries on his body :

(i) Lacerated wound present on the upper head size 2 x 1 x ½ cm;

(ii) Lacerated wound present on back side of head size 1 ½ x 1 ½ x ½ cm;

(iii) Lacerated wound present on the left upper leg size 1 x 1 x ½ cm ;

(iv) Contusion present on the left hand of forearm;

(v) Contusion present on the left shoulder (colour blue);

(vi) Contusion present on back side of limber.

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The M.L.C. report is Ex. P. 9.

21. Dr. M.P.N. Khare (P.W.14) has stated that he had conducted x-ray of Rajaram (P.W.8) and found fracture of left radius bone. The X-ray report is Ex. P.17 and X-ray plate is Ex. P.17 ABCD.

22. No bony injury was found on left elbow of Virendra Singh. The x-ray report is Ex. P.18.

23. Dr. N.K. Barua (P.W.7) also medically examined Rakesh and found following injuries :

(i) Contusion present on the right side of shoulder (Red Colour);

(ii) Contusion present on the back lumber;

(iii) Patient complained of pain in the right buttock side.

The MLC report is Ex. P.10.

24. Dr. N.K. Barua (P.W.7) also medically examined Shanker and found following injuries on his body :

(i) Abrasion present on back side of head size 1 x 1 cm;

(ii) Pain and swelling in the right side of back head ;

(iii) Pain and swelling in the right hand at forearm;

(iv) Contusion present on the left shoulder colour red;

(v) Patient complained of pain in the right leg upper side;

(vi) Abrasion present on the lower right left Tibia.

The MLC report is Ex. P.11.

25. Dr. N.K. Barua (P.W.7) also medically examined Viran Singh and found following injuries on his body :

(i) Contusion present on the left shoulder ;

(ii) Pain and swelling present on the elbow of left hand

(iii) Abrasion present on the back side and left side size 1 x 1 cm;

(iv) Contusion present on the left back side of lumber;

(v) Patient complained of pain in right side of chest.

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The MLC report is Ex. P.12.

26. Thus, in all five persons sustained injuries and ultimately one namely Chhandu Yadav expired.

27. Ashok (P.W.2), Shanker (P.W.3), Rajaram (P.W. 8), and Vir Singh (P.W. 10) are the injured witnesses.

Whether Ocular Evidence is contrary to Medical Evidence

28. Before considering the submissions made by Counsel for Appellants with regard to discrepancy in ocular and medical evidence, it would be appropriate to consider the law governing this field.

29. The Supreme Court in the case of Putchalapalli Naresh Reddy Vs. State of Andhra Pradesh and others reported in (2014) 12 SCC 457 has held as under :

14..........The doctor has opined that this injury could have been caused by a blunt object. According to the learned counsel the witness did not say that the accused reversed the axe while hitting the deceased on the head as the injury shows, and therefore he is lying or was not present.

15. In the first place, we find that other witnesses have given the same deposition. It is possible that the statement of the witness [PW 3] is slightly inaccurate or the witness did not see properly which side of the axe was used. It is equally possible that the sharp edge of the axe is actually very blunt or it was reversed just before hitting the head. It is not possible to say what is the reason. That is however no reason for discarding the statement of the witness that A-1 Puchalapalli Parandhami Reddy hit the deceased with a battleaxe, as is obvious from the injury. Moreover, it is not possible to doubt the presence of this witness, who has himself been injured. Dr M.C. Narasimhulu, PW 13, Medical Officer, has stated in his evidence that on 25-11-

1996 at about 3.30 p.m., he examined this witness PW 3 P. Murali Reddy and found the following injuries:

"(1) Diffused swelling with tenderness over middle 3rd and back of left forearm.

(2) A lacerated injury skin-deep of about ½? over the back

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11 Cr.A. Nos.2642/2008 and 87/2009

of head. Bleeding present with tenderness and swelling around."

30. Furthermore, unless and until the medical evidence completely makes the ocular evidence improbable, the ocular evidence will have primacy over the medical evidence. The Supreme Court in the case of Bhajan Singh Vs. State of Haryana reported in (2011) 7 SCC 421 has held as under :

37. In State of U.P. v. Hari Chand this Court reiterated the aforementioned position of law : (SCC p. 545, para 13) "13. ... In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy."

38. Thus, the position of law in such a case of contradiction between medical and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved. (Vide Abdul Sayeed.)

31. The Supreme Court in the case of Ramanand Yadav Vs. Prabhu Nath Jha reported in (2003) 12 SCC 606 has held as under :

17. So far as the alleged variance between medical evidence and ocular evidence is concerned, it is trite law that oral evidence has to get primacy and medical evidence is basically opinionative. It is only when the medical evidence specifically rules out the injury as is claimed to have been inflicted as per the oral testimony, then only in a given case the court has to draw adverse inference.

32. The Supreme Court in the case of Shamsher Singh v. State of Haryana, reported in (2002) 7 SCC 536 has held as under:

8. The authorities cited by the learned counsel for the appellant, on the point that when there is conflict between the medical evidence and the ocular evidence, the prosecution case should not be accepted, are of no help to

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him in this case. On deeper scrutiny of the evidence as a whole, it is not possible to throw out the prosecution case as either false or unreliable on the mere statement of the doctor that injuries found on the deceased could not be caused by a sharp-edged weapon. This statement cannot be taken in isolation and without reference to the other statement of the doctor that the injuries could be caused by Ext. P-9 axe to disbelieve the evidence of the eyewitnesses.

From the evidence available in this case the possibility of the blunt head of the axe or the stick portion coming in contact with the head of the deceased cannot be ruled out. These decisions cited by the learned counsel for the appellant are related to those cases where the medical evidence and the version of the eyewitnesses could not be reconciled or that the account given by the eyewitnesses as to the incident was highly or patently improbable and totally inconsistent with the medical evidence having regard to the facts of those cases and as such their evidence could not be believed. The case on hand is not one such case.

33. In chapter 29 of Modi's Jurisprudence under the heading Regional Injuries, it has been mentioned that a scalp wound by a blunt weapon may resemble an incised wound, hence the edges and ends of wound must be carefully seen....". Thus, incised wound may also appear as lacerated wound because of the location of injury. Furthermore, it cannot be presumed that the axe would always contain a sharp blade. With continuous use of axe, its blade may become blunt, which may cause lacerated wound also.

34. Furthermore, vide seizure memo Ex. P.28 one axe was seized and according to the seizure memo, it was an old and used axe. Thus, it is clear that with continuous use of sharp edged weapon, its blade would become blunt, and therefore, even if the blade side of the weapon is used, still it may cause lacerated wound.

Injuries found on Ghooman (Appellant)

35. Dr. N.K. Barua (P.W.7) had examined Ghooman and found

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following injuries on his body :

i. Lacerated wound below knee of left leg admeasuring 3 x 1 x ½ inch;

ii. Lacerated wound in mid of wrist of left hand admeasuring 2.5x5 cm;

iii. Contusion on back.

All injuries were simple in nature. When the medical examination was done, it was dark. The MLC report is D-4.

36. Shanker (P.W.3) in his cross-examination had admitted that when Ravindra tried to assault him, then the said assault landed on Ghooman (Appellant). It is the case of prosecution that Ravindra had assaulted the injured and deceased by axe and it was also admitted by Shanker (P.W.3) that assault made by Ravindra by axe landed on Ghooman. Ghooman (Appellant) also sustained Lacerated wound, which clearly means that the blade of axe of Ravindra had become blunt.

37. Furthermore, in case of discrepancy, more weightage is to be given to the ocular evidence, unless and until, the medical evidence completely rules out the possibility of injury and only in that case, the ocular evidence can be disbelieved.

Injured witnesses

38. The injured witnesses enjoy a special status because presence of injuries on them shows their presence on the spot. The Supreme Court in the case of Chandrasekar v. State, reported in (2017) 13 SCC 585 has held as under :

10. Criminal jurisprudence attaches great weightage to the evidence of a person injured in the same occurrence as it presumes that he was speaking the truth unless shown otherwise. Though the law is well settled and precedents abound, reference may usefully be made to Brahm Swaroop v. State of U.P. observing as follows: (SCC p. 302, para 28)

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"28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone."

39. The Supreme Court in the case of Mohar v. State of U.P., reported in (2002) 7 SCC 606 has held as under :

11. The testimony of an injured witness has its own efficacy and relevancy. The fact that the witness sustained injuries on his body would show that he was present at the place of occurrence and has seen the occurrence by himself.

Convincing evidence would be required to discredit an injured witness. Similarly, every discrepancy in the statement of a witness cannot be treated as fatal. A discrepancy which does not affect the prosecution case materially cannot create any infirmity............

40. The Supreme Court in the case of M. Nageswara Reddy v. State of A.P., reported in (2022) 5 SCC 791 has held as under :

19. Having gone through the reasoning given by the High Court, we are of the opinion that the High Court has unnecessarily given weightage to some minor contradictions. The contradictions, if any, are not material contradictions which can affect the case of the prosecution as a whole. PW 6 was an injured eyewitness and therefore his presence ought not to have been doubted and being an injured eyewitness, as per the settled proposition of law laid down by this Court in catena of decisions, his deposition has a greater reliability and credibility.

41. The Supreme Court in the case of Brahm Swaroop Vs. State of U.P. reported in (2011) 6 SCC 288 has held as under :

28. Where a witness to the occurrence has himself been injured in the incident, the testimony of such a witness is generally considered to be very reliable, as he is a witness that comes with an in-built guarantee of his presence at the scene of the crime and is unlikely to spare his actual assailant(s) in order to falsely implicate someone.

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"Convincing evidence is required to discredit an injured witness." (Vide State of U.P. v. Kishan Chand, Krishan v. State of Haryana, Dinesh Kumar v. State of Rajasthan, Jarnail Singh v. State of Punjab, Vishnu v. State of Rajasthan, Annareddy Sambasiva Reddy v. State of A.P. and Balraje v. State of Maharashtra.)

42. We shall now consider the evidence of injured eye-witnesses in the light of above mentioned law laid down by Supreme Court.

43. Rakesh Yadav (P.W.2) has stated that Chhandu Yadav was his Baba. About 2 days prior to 17-3-2006, he was in his field along with his father and were breaking stones. At that time, father of Ravindra came there and alleged that the cattles of this witness are causing damage to his crop. It was replied by his father, that he may summon five panchas and whatsoever, damage has been caused, shall be compensated by him. The father of appellant Ravindra scolded that payment of compensation would not do, and his eyes are to be taken out. On the next day, Shanti devi, the mother of Ravindra came to them and challenged that Mahabharat would take place. On the day of incident, he was going to his field along with food. When he reached near Beda of Pandey, Indrapal gave a lathi blow on his back which landed on his shoulder and also called the other accused to ensure that he is not spared. On his alarm, his father Rajaram, Baba Chhandu, his uncle Viran and Shanker also came on the spot. At Phatta Talaiya, Ravindra assaulted his father by axe as a result his father sat down after catching hold of his head. His Baba Chhandu was trying to save him. Both of his uncles also intervened in the matter. His Baba Chhandu, with an intention to save Rajaram laid down on him. Ghooman assaulted his father by ballam which landed on his left thigh. Ravindra assaulted his Baba Chhandu by axe whereas Ghooman assaulted Chhandu by Ballam, and Indrapal, Babulal, Goverdhan and Nathu assaulted his Baba by lathis. On the alarm raised by his father and Baba, his mother,

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aunt and other villagers came there to intervene. It was further stated that had the villagers not intervened in the matter then the accused persons would have killed them. This witness along with his uncle Vir Singh, Shanker Singh, his father Rajaram and Baba Chhandu went to Ramtoria police out post, but the police personnel present in the outpost said that lot of injuries have been sustained by them, therefore, they should be taken to police station. A bus was arranged by the police personnel and accordingly, they went to police station Bamnora, where he lodged the FIR Ex. P.3. Thereafter, all the injured persons were sent to hospital for treatment purposes. Thereafter Rajaram, and his Baba Chhandu were referred to Chhatarpur and he came back to his house. On the next day, the police came on the spot and prepared spot map, Ex. P.1. In cross- examination, he denied that all the other injured and deceased were assaulted at the same place, where he was assaulted. He denied that Rajaram (P.W.8) had initially assaulted Indrapal. His father (Rajaram) sat on the ground and thereafter his baba Chhandu laid down on him. His father was standing when Ghooman had assaulted him by Ballam. He admitted that a civil litigation was pending between his Baba Chhandu and accused Babu on the question of partition and the case also remained pending in the Court in this regard. He denied that only because of that there was an enmity between them and the accused persons.

44. Shanker Yadav (P.W.3) has also stated that about 1 year back, Rajaram, Virendra and Pappu were breaking stones. At that time, Nathu went there and scolded that they leave their cattles open. His elder brother Rajaram denied that they leave their cattles open but also said that he is ready to pay the damages and asked for summoning panchas. In reply Nathu said that payment of compensation would not do, and now the eyes of Rajaram are to be taken out. On the next day, Shantibai came to the

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17 Cr.A. Nos.2642/2008 and 87/2009

house of this witness and said that today Mahabharat would take place. On the next day, the incident took place. At about 7 P.M., his nephew Rakesh (P.W.2) was going when Indrapal assaulted him by lathi. Rakesh (P.W.2) raised an alarm then Rajaram (P.W.8) came rushing to save Rakesh (P.W.2). Ravindra assaulted Rajaram on his head twice by axe. In the meanwhile, his father Chhandu also came there and tried to intervene in the matter and laid down on Rajaram. Then Ravindra gave repeated axe blows to Chhandu. Ghooman gave ballam blow to his father Chhandu. Indrapal, Nathu, Goverdhan and Babulal also gave lathi blow to his father Chhandu. Ghooman tried to assault this witness by ballam, however, this witness caught hold of ballam. While scuffle between him and Ghooman was going on, at that time, Ravindra gave an axe blow to him which landed on Ghooman, thereafter, his Bhabi and other villagers came rushing and the accused persons ran away. Thereafter, they went to police station Ramdoria, where they were informed to go to police station Bamnora. Then they went to Bamnora by bus and lodged the FIR. The injured were sent to Dhuwara for medical treatment. Thereafter, they were referred to Chhatarpur Hospital and Chhandu died on the way. He took Rajaram to Chhatarpur, whereas the dead body of Chhandu was brought back to the village by Bantulal and Buland. He was assaulted by Babulal, Indrapal, Nathua and Goverdhan. Indrapal and Goverdhan had given lathi blow on his head, whereas Nathu had given lathi blow on his hand and Babulal had given lathi blow on his knee. The Safina form is Ex. P.4 and Lash Panchnama is Ex. P.5. In cross-examination, this witness stated that when the incident of giving threat to take out the eyes took place, they went to police station Ramdoria, where the S.H.O. had directed them to reconcile the matter. He, Rajaram and Chhandu had gone to lodge the FIR regarding threat, but the report was not written. They did not lodge the report

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18 Cr.A. Nos.2642/2008 and 87/2009

regarding threat given by Shantibai that Mahabharat would take place. They reached police station Bamnora at about 12 in the night. The police personnel took 2 hours to lodge the report. Their cattles had not entered in the field of the accused persons and no Panchayat was ever convened. He had fallen unconscious. He could not explain as to why the fact that assault made by Ravindra had landed on hand and leg of Ghooman was mentioned in his police statement Ex. D.1. He had witnessed the incident of assault on Rajaram and Chhandu from a distance of approximately 20 ft.s. He admitted that his grandfather were two brothers, namely Bare and Param. Deceased Chhandu is the son of Bare whereas Bantu, the father of the accused persons is the son of Param. Family dispute with regard to partition of family/ancestral property was going on between his father Chhandu and father of Babu namely Bantu. However, denied that on that account, there was an enmity between the parties.

45. Rajaram (P.W.8) is also an injured witness. He has stated that on 17th, he was in his field. Chhandu and Vir Singh were with him. They were working in their field. All of a sudden they heard the alarm raised by his son Rakesh. He rushed to save his son. Chhandu, Shanker and Vir Singh also followed him. He saw that all the accused persons had caught hold of Rakesh and were assaulting him. As soon as he reached there, Ravindra assaulted on his head by an axe twice. He sat on the ground and started shouting. Ghooman assaulted by ballam on his left leg whereas Indrapal, Nathua, Babulal and Goverdhan assaulted him by lathis. In the meanwhile, his father Chhandu also reached there and in order to save him, laid down on him. He too was assaulted by accused persons. Ravindra assaulted Chhandu by axe whereas Ghooman assaulted him by ballam whereas Indrapal, Nathua, Babulal and Goverdhan assaulted him by lathis. Vir Singh reached there, he too was assaulted by the accused persons.

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19 Cr.A. Nos.2642/2008 and 87/2009

Shanker also tried to intervene, he too was assaulted by appellants. Thereafter hearing the alarms raised by all the injured persons, the villagers reached there and saved them. Thereafter, they went to police outpost Ramtoria, where he was told by police personnel that the report would be lodged in police station Bamnora and accordingly, they were sent to Bamnora. Rakesh lodged the report in police station Bamnora. The injured were sent for medical examination. Since, he and his father had received serious injuries, therefore, they were sent to Chhatarpur, however, his father Chhandu died on the way to Chhatarpur. This witness was admitted in Chhatarpur Hospital. In cross examination, he admitted that until his father Chhandu laid down on him, he was not assaulted by anybody. Appellant Ravindra, Indrapal and Ghooman are sons of Nathu. He never became unconscious.

46. Vir Singh (P.W.10) is also an injured witness. He too stated that after hearing the alarm raised by Rakesh, his elder brother Rajaram (P.W.8) rushed towards Beda of Pandey. He too followed him. When he reached on the spot, his father Chhandu was already lying on Rajaram and he was being assaulted by Ravindra by axe, Ghooman by ballam and Babulal, Indrapal, Goverdhan, Nathua by lathis. He too was assaulted by the accused persons. He was assaulted by Babulal. Shanker (P.W.3) was also assaulted by the accused persons. In cross-examination, a suggestion was given to this witness that on account of assault made by him, the blood vein of Ghooman was cut, however, the said suggestion was denied by him. He denied that Ghooman (Appellant) was assaulted by him. Other Evidence

47. Pappu Yadav (P.W.5) is the hearsay witness. In cross-examination, he has admitted that on account of property dispute, enmity was going on between the appellant and the injured party.

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20 Cr.A. Nos.2642/2008 and 87/2009

48. Gorelal Yadav (P.W.11) has turned hostile and admitted that Appellant Ravindra is his nephew. Sarju (P.W.18) has also turned hostile. Seizure of Weapons

49. Rajaram (P.W.19) is a seizure witness, who has proved the memorandum made by Ravindra, Ex. P. 27 and seizure of axe vide seizure memo Ex. P.28. He also proved the memorandum of Nathu, Ex. P.29 and seizure of Lathi vide seizure memo P.30. He also proved memorandum of Ghooman, Ex. P.31 and seizure of Ballam vide seizure memo Ex. P.32. He also proved memorandum of Indrapal, Ex. P.33 and seizure of lathi vide seizure memo P.34. He also proved memorandum of Babulal, Ex. P.35 and seizure of lathi vide seizure memo Ex. P.36. He also proved memorandum of one more accused, whose name was not known to this witness as Ex. P.37 and proved seizure of lathi vide seizure memo Ex. P.38.

50. A.K. Rai (P.W.21) is the investigating officer and has proved the seizure of weapon of offence from the appellants.

51. The seized articles were sent for forensic examination, and as per FSL report, Human blood was found on cloths of Chhandu and Rajaram, where blood was found on axe seized from Ravindra, lathis seized from Nathu Yadav, Indrapal, Babulal and Goverdhan and Ballam from Ghooman Yadav.

52. Although neither blood group nor origin of blood on the weapons seized on the disclosure made by appellants could be ascertained, but in absence of origin, it cannot be said that presence of blood on the weapons is completely immaterial and is of no importance in every case. Non- ascertainment of blood group may be of some importance in the case of circumstantial evidence, but where the case is based on direct evidence which is reliable, then presence of blood on weapon of offence, becomes

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an incriminating circumstance to corroborate the direct evidence. Time of Lodging FIRs by Appellant and Complainant

53. It is submitted by Counsel for Appellants that the FIR lodged by appellant party was prior in time i.e., at 21.45 and they were medically examined prior to the medical examination of the complainant party, whereas the complainant party lodged the FIR at 23:45, Ex. P.3 therefore, it is clear that the complainant party has suppressed the genesis of the case.

54. This submission has no legs to stand. According to the witnesses, first of all, they went to Ramtoria Police Out Post, where they were informed that the FIR shall be lodged in Police Station Bamnora. Accordingly, the complainant party came to Police Station Bamnora by bus and thereafter, the FIR was lodged. In fact, the police personnel present in the Ramtoria Police Out Post, should have taken a Dehati Nalishi and should have sent the same to Bamnora Police Station for registration of the same, but instead of doing that, it sent the injured to Bamnora Police Station, which consumed valuable time. Thus, the circumstance of lodging of FIR by complainant party after the FIR was lodged by the appellant has been duly explained by the prosecution.

55. Thus, it is clear that two days prior to the date of incident, Nathu (who died during the pendency of this appeal) had scolded Rajaram that his cattles are causing damage to his field and although Rajaram was ready to pay the damages, but Nathu threatened that eyes will be taken out. After two days, when Rakesh (P.W.2) was returning back, he was assaulted by Indrapal on his back and after hearing the alarm of Rakesh (P.W.2) when Rajaram, Chhandu, Shanker and Vir Singh tried to intervene, then they too were assaulted by the appellants by axe, ballam and lathis. When Chhandu laid down on Rajaram in order to save him, then he was assaulted repeatedly on vital parts of his body. Rajaram had

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22 Cr.A. Nos.2642/2008 and 87/2009

sustained as many as 6 injuries, whereas Chhandu had sustained 8 Injuries. Thus, the intention and knowledge of all the accused persons was writ large. Therefore, it is clear that all the appellants had acted in furtherance of common object.

56. Furthermore, the acquittal of complainant party in the cross case, also establishes that the complainant party was not aggressor and the injury on Ghooman was also explained by Shanker (P.W.3) and in cross- case, the complainant party was not found to be the author of injuries to Ghooman.

57. Accordingly, the contention of Counsel for the Appellants, that the incident took place all of a sudden and without any premeditation cannot be accepted. Total 28 injuries were caused to the injured persons, out of which 8 were caused to deceased Chhandu and 6 to Rajaram with fracture. Therefore, it is clear that the appellants had mercilessly beaten the complainant party.

58. Under these circumstances, the conviction of the Appellants for offence under Sections 148, 323/149, 325/149, 302/149 of IPC is hereby affirmed.

59. Since, the minimum sentence for offence under Section 302 of IPC is Life Imprisonment, therefore no interference is required so far as sentence awarded by the Trial Court is concerned. Accordingly, the sentence awarded by the Trial Court is also hereby affirmed.

60. Ex-Consequenti, the Judgment and Sentence dated 29-11-2008 passed by 6th Additional Sessions Judge (Fast Track Court), Chhatarpur, is hereby affirmed.

61. All the Appellants, except Goverdhan Pal are on bail. Their bail bonds are hereby cancelled. They are directed to surrender before the Trial Court on or before 10th of October 2024, failing which the Trial Court

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23 Cr.A. Nos.2642/2008 and 87/2009

shall issue perpetual warrant of arrest against them for undergoing the remaining jail sentence.

62. The Appellant Goverdhan is in jail. He shall undergo the remaining jail sentence.

63. Let a copy of this judgment be immediately sent to the Trial Court along with its record for necessary information and compliance.

64. Cr.A. No.2642 of 2008 filed by Ravindra, Indrapal, Goverdhan and Ghooman and Cr.A. No.87/2009 filed by Babulal are hereby Dismissed. Cr.A. No.2642 of 2008 filed by Nathu is dismissed as Abated.

(G.S. AHLUWALIA) (VISHAL MISHRA) JUDGE JUDGE Arun*

Signature Not Verified Signed by: ARUN KUMAR MISHRA Signing time: 18-09-2024 16:27:01