MOTILAL Vs. STATE OF M P

JUDGEMENT

(1.) FIVE appellants have been convicted in Sessions Trial No. 330/95 by 1st Addl. Sessions Judge, Guna vide his judgment dated 74-1997 for having committed offence under Section 304 Part I read with Section 149 I. P. C. and Section 147 of the I. P. C. . They were found to be forming unlawful assembly on 14th August, 1995 at about 5 p. m. in the area of jungle of village Jaganpur and attacked deceased Raghuvir with sharp edged and hard blunt weapons like Farsa, luhangi and lathis. The most serious injury caused was with Farsa cutting about 1/3rd front of right arm of the deceased. There were other injuries also on the right arm and leg causing sharp edged cuts and blunt weapon injuries were caused on the face and other parts of the body. Total six injuries were caused. Raghuvir died by about 6 p. m. as a result of these injuries. The appellants have been sentenced to five years' RI each under Section 304 Part I read with Section 149 IPC and to one year's RI under Section 147 IPC. They challenge this judgment and sentence in the present appeal.

(2.) THE basis of conviction is statement of the deceased made to Head Constable Harnarayan (PW-1) at 5. 05 p. m. on 14-8-1995 in the presence of Constable Bhanwar Singh (PW-2 ). This Head Constable (PW-1) had received information of some quarrel resulting in a person lying in a jungle of village Jaganpur, from some person, while this Head Constable was passing through Railway crossing of Bajrang Garh. This Head Constable had gone to Guna with certain police letters from Police Station Bajrang Garh which was the Police Station of his posting and Superintendent of Police's office was situated at Guna. He was returning to Bajrang Garh at about 4. 30 p. m. after performing his duties at Guna. He was informed by a person of village Jaganpur. This Head Constable met Constable Bhanwar Singh (PW-2) at the private bus stand. Constable Bhanwar Singh also belonged to Police Station Bajrang Garh. Both of them together, on the motorcycle, went to village Jaganpur and enquired about the quarrel. They could not find any grown up person and some small children, around the age of seven to eight years, informed them that a quarrel had taken place at the bank of Nalha in the jungle. They parked their motorcycle in the village and proceeded towards Nalha in the jungle in search of place of incident. They saw deceased lying in injured condition by the side of. Nalha. Harnarayan Head Constable had asked him what happened and injured was speaking at that time although he had his right hand practically cut off and his other injuries in the leg and hands were bleeding and infact he was practically crying. On enquiring, the injured stated to him that he was assaulted by Motilal, Parmal, Bhagwat, Gopal and Parvat of his village. Motilal, Parvat and Parmal hit him with Farsa and luhangi while Gopal and Bhagwat hit him with lathis. The motive for this assault was stated by him as his objection against their grazing their cattle in the grass land (beed) belonging to him. These two witnesses were present on the spot when all this was stated by the deceased Raghuvir. Harnarayan recorded this statement as Dehati Nalish as Ex. P/1, finding that the condition of the deceased was critical and apprehending as to how long he would be able to live. This Head Constable recorded another statement of injured giving it a title of 'marnasann Kathan', which was recorded at 17 hours and 12 minutes. The Head Constable said that the other Constable Bhanwar Singh of Police Station Bajrang Garh was present when the statement of deceased (Ex. P/1) was recorded for the purpose of recording formal first information report. Before any Investigating Officer could reach on the spot, after first information report was recorded, the injured breathed his last. The formal first information report (Ex. P/9) was recorded at Police Station Bajrang Garh at about 5. 35 p. m. . It was recorded by S. P. Singh Meena, Sub-Inspector (PW-9 ). He started for the scene of crime but before he could reach, the injured died. The distance between Police Station Bajrang Garh and the scene of crime was about 6 kms.

(3.) ON the Dehati Nalish (Ex. P/1), Head Constable Harnarayan had obtained thumb mark of the deceased, of his left hand, with the ink pad which was allegedly ordinarily carried by Head Constable while he was on duty, in his bag. The Head Constable had recorded his note to the Police Station for recording first information report on that basis. On the statement titled as "marnasann Kathan" also, the thumb mark of injured was obtained and Bhanwar Singh Constable had also, signed it as a witness.