UHAIYAN Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) Bhaiyan and Dibia alias Devideen who were tried along with three others by the additional Sessions Judge, Chhatarpur, Madhya Pradesh, and found guilty by him of rioting under Section 147 of the India Penal Code as well as constructively responsible for the murder of one Harprasad Mishra alias Bape, aged 55, a resident of Garhi Malehra, under Section 302 read with Section 149 of the Penal Code and each of whom was awarded rigorous imprisonment for two years under the first count and imprisonment for life under the second count and whose convictions and sentences under both the counts have been maintained on appeal by the High Court of Madhya Pradesh have come up in further appeal (by special leave) to this Court against their aforesaid convictions and sentences.

(2.) The prosecution case in brief is that bad blood existed for some time past between the deceased, who was a staunch supporter of Congress Party and the appellants and their co-accused who were supporters of Jansangh Party. As a result of strenuous endeavours made by the deceased, there was a re-election of the Gram Panchayat at Garhi Malehra on August 15, 1970, at which Brij Bihari Chourasia and Devi Singh, who belonged to the party of the deceased were elected as Sarpanch and Up-Sarpanch respectively of the Panchayat defeating their rival candidates, namely Munna Patel, who has been acquitted by the trial Court, and Ashok Vakil, who were sponsored and supported by the rival political party. The victory of the Congress candidates at the aforesaid election deepened the political cleavage and led to complaints and counter complaints by and against some members of the aforesaid factions including the appellants necessitating initiation by the Police against them of proceedings under Sections 107/117 of the Criminal Procedure Code. Apprehending danger to his life, the deceased, shifted to Chhatarpur in February, 1971, but as he did not remove his family to that place, he paid weekly visits to Garhi Malehra. On April 19, 1971, he came to Garhi Malehra from Chhatarpur, and accompanied by Dindayal (P.W. 1), a close neighbour of his, he went out in the evening to the local market to see some acquaintances. At about 7.30 P. M. when after meeting S. 1 Mangleshwar Singh and Bihari Baniya, the deceased and Dindayal (P. W. 1) were returning to their houses, they saw Shankar and Babua, absconding accused and Abdulla, another co-accused standing at the bifurcation of the roads near the shop of Jamuna Barai which was closed at that time. When the deceased accompanied by Dindayal (P. W. 1) got near the place where the aforesaid accused were standing, he was accosted and offered tobacco and engaged in conversation by Shankar, the absoncing accused. While thus engaged, the deceased and his companion, Dindayal (P. W. 1) and Shankar, Abdulla and Babua proceeded ahead. The appellants also joined the party after it had covered a distance of 10 of 15 paces. On reaching the tri-junction of the roads, Shankar took the deceased unawares and placing his had around the latter"s neck fell him on the ground and started snatching the gun which he (the deceased) was carrying. In the meanwhile, Abdulla got on the chest of the deceased and Shankar exhorted Dibia and Bhaiyan to guard the road. Dindayal (P. W. 1) thereupon asked the accused as to what they were up to. At this, Babua, one of the absconding accused, gave a kick to Dindayal who being a patient of gout, fell down. Thereafter Abdulla whipped out a "Karoli" (dagger) and plunged it in the abdomen of the deceased as a result whereof his intestines came out and blood started sprouting from the injury. Dindayal, who was completely dazed, started raising an alarm on hearing which Ramdas (P. W. 2), nephew of the deceased, and Binna Bai (P. W. 14), wife of the deceased, rushed to the scene of occurrence. All the accused then fled away towards the house of Ashok Vakil. Ramdas (P. W. 2) ran after the accused for some distance shouting "catch hold of the scoundrels" but he had to abandon the pursuit when Shankar turned round and aiming the gun in his direction threatened to kill him. Dindayal (P. W. 1) and Ramdas (P. W. 2) carried the deceased, to his house and sent for Dr. Dwarka. On reaching his house but before the arrival of the doctor, the deceased narrated the circumstances leading to the injury on his abdomen to his wife, Binna Bai (P. W. 14) in the presence of Dindayal and Ramdas. On seeing the condition of the deceased, Dr. Dwarka, who arrived at the house of the former shorltly after he had made the aforesaid declaration, advised Dindayal (P. W. 1) to remove the deceased to Chhatarpur hospital for urgent surgical treatment. Acting on this advice, the deceased was taken in a bus to the Hospital where Dr. S. S. Saxena (P. W. 17) examined him and found a stab wound on the left side of his abdomen at the level of the umbilicus. The doctor also found the intestines and mesentery of the deceased coming out, his pulse and blood pressure not recordable, his respiration shallow and his face turned pale. The doctor gave necessary injections to the deceased and had him carried to the operation theatre. The treatment administered to the deceased did not, however, improve his condition and he succumbed to his wound at 9.30 P. M. Thereafter, Dindayal (P. W. 1) went to the Police Post at Garhi Malehra and lodged report (Exh. P. 1).

(3.) On the following day at about 10.00 A.M. Dr. Kishan Dayal Khare, Medical Officer, District Hospital, Chhatarpur (P. W. 27) conducted autopsy on the body of the deceased and observed: