MALSINGH Vs. STATE OF M P

JUDGEMENT

(1.) THIS judgment disposed of Cr. A. No. 532/93 and 543/93 as they are directed against the judgment and Order dated 5-10-93 passed by IVth A. S. J. Dhar in S. T. No. 183/91 whereby all the appellants were convicted for offence under Section 148 I. P. C. and appellants Punja and Malsingh for offence under Section 302 I. P. C. and appellants Khuman, Ansingh, Bhavsingh and Gobariya for offence under Sections 302/149 I. P. C. and sentenced to 3 years R. I. and life imprisonment respectively.

(2.) THE prosecution case, in brief, was that on 12-2-91 Banesingh (P. W. 3), his brother Bahadur (P. W. 5), their father deceased Bhagiya, Bhagiya's nephew Limji (P. W. 4), Rupla (P. W. 8), appellants and acquitted accused Nansingh, Mukut, Dhaniya had gone to Harsinga Tekri to see 'shivratri-Mela' and to worship God Shiva. In this 'mela', thousands of tribal people armed with weapons come in groups. They consume liquor, dance, sing and beat drums. The appellants and the complainant party had animosity as the appellant Punja had kidnapped Bakhtibai, wife of Rupla (P. W. 8) for which he was prosecuted. When at about 5 p. m. the complainant party was returning from Mela, the appellants and their associated made 'kurrati' - loud and shrill voice in a particular way. Generally the tribal people before attack, give alarm by making shrill noise indicating their intention to assault. It is commonly known as 'kurrati' or 'bhapkari'. The appellants and their associates started attacking the complainant party. The appellants Malsingh and Punja gave arrow-shots to deceased Bhagiya which landed on his chest. The arrow of Ansingh hit his back. Gobariya fired one shot from his 12 bore gun which hit the deceased Bhagiya and Banesingh, Bhavsingh dealt one Dhariya-blow to Banesingh which caused injury on his right shoulder. Khuman also gave arrow-shot which hit the heel of Limji (P. W. 4 ). The police immediately came on the spot. Banesingh narrated the incident to S. O. , N. R. Gurjar (P. W. 9) who recorded it as 'dehati-Nalishi', Ex. P-2. Gurjar sent Bhagiya to District Hospital but he died in the way. The Investigating Officer Gurjar conducted inquest on the dead-body and prepared report, Ex. P-7. He also sent Banesingh and Limji for medical examination. Dr. K. S. Chouhan (P. W. 6) found arrow-blade embedded in the right heel vide report Ex. P-3. On the same day Dr. S. C. God (P. W. 10) examined Banesingh. He found one incised wound 3 cm x 1/2 cm. on his right shoulder and one stab wound on his left fore-arm vide report Ex. P-29. Dr. O. P. Goyal (P. W. 11) conducted autopsy on the dead-body of Bhagiya and found the following: 1. Punctured wound on right chest 1" below nipple 1" x 1/2" x 3". 2. Punctured wound on right side of chest 1" x 1/2" x 5". 3. Gun-shot wound on right leg 2" above the knee, 1 cm x 1/2 cm. 4. Gun-shop wound on left thigh 1 cm x 3/4 cm. Dr. Goyal opined that the deceased died due to shock and asphyxia, as a result of the injuries caused on the chest of the deceased vide report Ex. P-13. The Investigating Officer visited the spot and prepared spot-map Ex. P-11. He seized stained and unstained earth from the place of occurrence. During the investigation, N. R. Gurjar arrested the appellants Malsingh, Ansingh, Punja, Khuman and acquitted accused and on their information recovered bows from their possession. Investigating officer also arrested Gobariya and on his information given under Section 27 of the Evidence Act recovered his 12 bore gun which was seized vide Ex. P-6. Farsa was also recovered at the instance of appellant Bhavsingh. After completion of investigation, challan was filed. The appellants and the acquitted accused pleaded not guilty and false implication. The defence of Malsingh, Bhavsingh and Ansingh was of alibi. The learned trial Judge acquitted the co-accused Nansingh, Mukut and Dhaniya and convicted and sentenced the appellants as stated above. Hence, these appeals.

(3.) SHRI Shukla, LC for appellants Punja, Khuman and Gobariya (Cr. A. No. 532/93) and Shri Jaisingh, LC for appellants Malsingh, Ansingh and Bhavsingh (Cr. A. No. 543/93), submitted that the appellants have been falsely implicated. In fact when the accused persons were returning from the Mela, the complainant party which was annoyed with Punja as he had abducted the wife of Rupla, assaulted them with stones, arrows and other weapons. They also submitted that after this incident, the complainant party murdered Sardar, the brother of Malsingh and also burnt their houses and 38 accused persons, including the complainant party, were being prosecuted for this offence. They also submitted that charge under Sections 302/149 I. P. C. was not framed against them, therefore, the appellant deserve acquittal. On the other hand, Shri P. Verma, Dy. G. A. supported the impugned judgment.