Dadan vs State Of M.P

(Madhya Pradesh) and confirmed by the High 2

Court of Judicature at Jabalpur, M.P. on April

25, 2006 in Criminal Appeal No. 2444 of 1998.

2. Shortly stated the facts of the case

are that according to the prosecution, the

incident in question took place on December 14,

1990 at 07.05 p.m. at Kabari Tola, District

Satna in front of Pan shop of one Bablu. The

case of the prosecution was that on the fateful

day, all the accused were standing near the

shop of Bablu. Jawaharlal Sahu (deceased) came

there on his scooter. All the accused persons

were waiting for the deceased. They formed an

unlawful assembly whose members were armed with

deadly weapons like gupti, knife, iron rods

etc. The common object of the accused persons

was to kill Jawaharlal. On seeing Jawaharlal,

all the accused started inflicting injuries on

him. Jawaharlal cried for help. His brother PW

5 Motilal who was sitting at the watch shop of

Ramcharan Singh, immediately reached there to

rescue him, but he was also beaten by the

accused persons and serious injuries were 3

caused to him. The incident was witnessed by

PW 7 Hiralal, father of the deceased, PW 9

Janki Bai, mother of the deceased as also PW 10

Bharat Kumar, brother of the deceased. Other

persons also came there. The accused fled away.

Jawaharlal died due to injuries sustained by

him. Motilal was taken to hospital. First

Information Report was lodged immediately at

8.45 p.m. The accused were arrested on the next

day, i.e. December 15, 1990. They were charged

for commission of offences punishable under

Sections 148, 302 read with 149 as also Section

307 read with 149, Indian Penal Code, 1860

(IPC). Usual investigation was carried out and

the case was committed to the Court of Session

by the Chief Judicial Magistrate since it was

exclusively triable by the Sessions Court.

3. The plea of the accused was recorded.

They denied having committed any offence and

claimed to be tried.

4. At the trial, the prosecution, in

support of the case, examined fifteen 4

witnesses. The accused in their defence

examined four witnesses.

5. The Sessions Court on the basis of

medical evidence came to the conclusion and

recorded a finding that Jawaharlal Sahu died

due to injuries sustained by him and the death

was homicidal in nature. It also recorded a

finding that injuries caused to Motilal were

serious in nature and they have been caused

during the course of incident in which

Jawaharlal Sahu lost his life.

6. Considering the part played by the

accused and their responsibility, the trial

Court heavily relied upon the evidence of PW 5

Motilal, real brother and injured witness and

PW 7, Hiralal, PW 9 Janki Bai and PW 10 Bharat

Kumar. On the basis of the said evidence, it

held that it was proved by the prosecution

beyond suspicion that accused persons formed an

unlawful assembly and in furtherance of common

object to cause death of Jawaharlal, they

inflicted injuries on him. All the accused 5

were, therefore, liable to be convicted for

offences punishable under Sections 148, 302

read with 149, IPC. It, however, held that it

was not proved by the prosecution that the

accused persons attempted to cause death of

Motilal and were, therefore, not liable to

conviction under Section 307 read with Section

149, IPC. But they had committed an offence of

causing grievous hurt to Motilal and,

therefore, were liable to be convicted for an

offence punishable under Section 326 read with

Section 149, IPC. The Court in the light of

the said finding, ordered the accused persons

to undergo rigorous imprisonment for one year

for an offence punishable under Section 148; to

suffer imprisonment for life for the offence

under Section 302 read with Section 149 and to

undergo rigorous imprisonment for three years

for an offence punishable under Section 326

read with Section 149, IPC. They were also

ordered to pay fine with default clause. 6

7. Being aggrieved by the order of

conviction and sentence, out of five accused,

four accused (other than Kirti Singh) preferred

criminal appeals. The High Court again

appreciated the evidence on record and by the

judgment impugned in the present appeal held

that the appeal filed by accused No. 3-Rajesh

Viswakarma @ Thapa was required to be allowed.

Accordingly, the appeal was allowed and his

conviction and sentence was set aside. With

regard to other accused, however, the court

held that the trial court did not commit any

error in recording finding of guilt against

them and there was no substance in those

appeals. Order of conviction and sentence,

therefore, was confirmed.

8. Appellant Dadan who was accused No. 2

has challenged his conviction by filing the

present appeal.

9. We have heard the learned counsel for

the parties.

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10. The learned counsel for the appellant

contended that the order of conviction and

sentence recorded by the trial Court and

confirmed by the High Court cannot be said to

be in accordance with law and it is liable to

be set aside. It was also submitted that when

the High Court acquitted one of the accused not

believing the prosecution story and granted

benefit of doubt to him, the said benefit ought

to have been extended to the appellant also.

When a part of the prosecution story was not

believable and was not believed by the High

Court, on the same set of facts and

circumstances, it ought not to have convicted

the appellant herein. The counsel also argued

that iron rod said to have been used in

commission of offence was not seized and on

that ground also, the appellant is entitled to

succeed. It was urged that both the courts

mainly relied upon PWs 5, 7, 9 and 10. All the

above prosecution witnesses were closely

related to the deceased being father, mother 8

and brothers. Though the incident took place

in a busy locality and other witnesses were

available, independent witnesses had not been

examined and the High Court ought to have

granted benefit of doubt to the appellant.

11. The learned counsel appearing for the

State, on the other hand, supported the order

passed by the High Court. According to him, on

the basis of evidence on record, both the

courts reached a finding against the appellant

and there is no reason to interfere with the

impugned judgment.

12. Having heard the learned counsel for

the parties and having gone through the

judgments of both the courts and relevant part

of evidence of PW 5 Motilal, PW 7 Hiralal, PW 9

Janki Bai and PW 10 Bharat Kumar, we are of the

view that no error can be said to have been

committed either by the trial Court or by the

High Court in recording guilt of the appellant

herein and in convicting him for the offences

with which he was charged.

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13. This Court is exercising power under

Article 136 of the Constitution and is not a

regular Court of Appeal. In exercise of the

said power, this Court does not re-appreciate,

review and re-weigh the evidence which has been

appreciated by the trial Court and by the High

Court. If on the basis of evidence of the

aforesaid witnesses, the Sessions Court was

satisfied that the prosecution witnesses were

trustworthy and relying on their testimony,

conviction was recorded and the High Court

confirmed that part of the order, it cannot be

said that by doing so any illegality had been

committed by the courts below. No

interference, therefore, is called for by this

Court against the said finding. The present

appeal, therefore, is liable to be dismissed.

14. For the foregoing reasons, the appeal

preferred by appellant-accused No. 2 Dadan

deserves to be dismissed and is accordingly

dismissed. Conviction and sentence awarded by 10

the trial Court and confirmed by the High Court

are maintained.

.........................................................J. (C.K. THAKKER)

.........................................................J. (D. K. JAIN) New Delhi.

November 04, 2008.