BHAGATRAM Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellants (hereinafter called, 'the accused') challenge their conviction under Ss.302 r/w. S.149 I.P.C. and S.148 I.P.C. and sentences respectively on the first count imprisonment for life and fine of Rs. 1000/-, in default, rigorous imprisonment for one year each and one year rigorous imprisonment on the second count, substantive sentences to run concurrently awarded by the Second Additional Judge to the Court of Sessions Judge, Mandsaur by judgement dated 30-1-1986.

(2.) The accused were prosecuted by Police, Manasa District Mandsaur. The prosecution story is that on 19-6-1984, deceased Durga was beaten by accused Bhagatram, Ambaram and Omprakash (appellants Nos. 1, 4 and 18) on quarrel over their women folk fetching water from village well. Both deceased Durga and accused Bhagatram in that connection had on 20-6-1984 lodged reports respectively Exs. P/42 and P/43 at Police Station, Manasa. While no action was taken on the report of Durga and he was asked to approach a Court of law, on report of accused Bhagatram criminal case was registered at Police Station against deceased Durga being crime No. 234/84 under Ss.341, 294, 336 and 323 I.P.C. and deceased Durga was arrested by Manasa Police on 21-6-1984 vide Panchanama arrest, Ex. P/63 of even date. After arrest at Manasa Police, deceased Durga was released on bail after he had executed bond. On 21-6-1984 he was returning from Police Station, Manasa to his village Nayamal Kheda along with his brothers Mansingh (P.W. 19) and Gabba (P.W. 20). It is alleged that the eighteen accused persons had formed an unlawful assembly and were armed with axes, spears and sticks. Their common object was to cause death of Durga. When Durga reached near the well of one Bhuwanmali on the outskirts of the village, the eighteen accused persons in prosecution of the common object as aforesaid surrounded him and dealt him blows with weapons carried by them all over his body. Seeing this, his two companions Mansingh (PW 19) and Gabba (PW. 20) ran to Police station, Manasa, where Mansingh lodged information, Ex. P./44, which was written down in Roznamcha by Virendra, Head-constable (P.W. 14). He deputed G.S.I. Gosar and Police Constable Lalchand and Govind Singh to the place of incident. (These three have not been examined by the prosecution) and soon thereafter, S.I. Nathu Singh (P.W. 29) along with S.D.O. Police (not examined by the prosecution) reached Manasa village at about 10.45 P.M. Durga in injured condition was found near the village temple. He gave out version of the incident, Ex. P/64-A, which was recorded as Dehatinaisi by Nathu Singh (P.W. 29). In the Dehatinaisi Ex. P/64-A, Durga had named all the accused persons as his assailants. Durga in injured condition was taken in a tractor to Manasa Civil Hospital. He was accompanied by his wife Gendibai (P.W. 22), two brothers Mansingh (P.W. 19) and Gabba (P.W. 20) and his father Deva S/O Dhanna (P.W. 24). As soon as injured Durga reached Manasa Hospital he breathed his last and attempt to get his dying declaration recorded proved futile. The case vide Ex. P/64-A earlier registered under S.307 I.P.C. and for rioting was converted into one of murder under S.302 I.P.C with rioting. The dead body was sent for post mortem examination and after usual investigation challan was put up against the accused persons.

(3.) Before the Additional Sessions Judge on 28-1-1985 each of the eighteen accused persons pleaded not guilty to charges under Ss.302 I.P.C. and 302/149 I.P.C. and S.148 I.P.C. In their examination accused persons pleaded want of knowledge of all material allegations and denied the same. He examined Chandrashekhar Sarwate, Hand-writing Expert (D.W. 1) to prove that signature on Dehatinali, Ex. P/64-A did not compare with the normal admitted signature of deceased Durga and that he must not have been possessed of proper mental capacity and understanding at the time of making his signature on Ex. P/64-A. The Additional Sessions Judge relying on declaration contained in Dehatinaisi Ex. P/64-A convicted and sentenced the accused as stated above. Hence, the appeal.