UMA SHANKAR GAUTAM Vs. STATE OF M.P : Supreme Court - Section 147 and Section 302 read with Section 149 of Indian Penal Code
Supreme Court of India
CRIMINAL APPEAL NO.1451 OF 2009 Judgment Date: Dec 09, 2014
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1451 OF 2009
Uma Shankar Gautam .. Appellant
versus
State of Madhya Pradesh .. Respondent
J U D G M E N T
C. NAGAPPAN, J.
This appeal is preferred against the judgment and order dated 12.8.2008
passed by the High Court of Madhya Pradesh at Jabalpur in Criminal Appeal
No.1537 of 1998.
The appellant herein is accused no.1 and he along with five other accused
were tried in Sessions case no.193/1995 on the file of Sessions Judge,
District Shahdol and the trial court convicted them for the commission of
offences under Section 147 and Section 302 read with Section 149 IPC and
sentenced each of them to undergo rigorous imprisonment for one year for
the first offence and each of them to undergo imprisonment for life for
second offence. Aggrieved by the same all the accused preferred Criminal
Appeal no.1537 of 1998 to the High Court of judicature at Jabalpur.
During the pendency of appeal appellant no.2/accused no.2 Ramashankar died
and the appeal preferred by him stood abated. The High Court confirmed the
conviction and sentence of accused no.1 Umashankar, accused no.3
Shivashankar and accused no.4 Gaurishankar and at the same time acquitted
accused no.5 Vasudev and accused no.6 Gyandev by allowing the Criminal
Appeal in part. Challenging his conviction and sentence, accused no.1
Umashankar has preferred the present appeal.
Briefly the case of the prosecution is narrated as follows : PW7 Savitri
Bai is the mother of Kalua @ Ramnath and PW9 Usha Bai is his wife. On
19.7.1995 at about 8-8.30 a.m. the appellant herein/accused no.1
along with five other accused had gone to the house of Nan @ Lakhan
situated at village Dindori Tola Bamhani and were hurling abuses in the
courtyard. Nan was not in the house at that time and upon hearing the
noise Kalua @ Ramnath went to Nan's house. Accused no.3 Shivashankar armed
with barchhi, accused no.4 Gaurishankar armed with farsa and accused
nos.1,2,5 and 6 armed with lathis attacked Kalua with the said weapons and
inflicted injuries on him. PW7 Savitri Bai tried to save his son Kalua and
she was also beaten up. PW9 Usha Bai and PW2 Shiv Kumari, mother of Nan,
also witnessed the occurrence. After sometime accused no.1Umashankar and
accused no.4 Gaurishankar again came to the occurrence place on motorcycle
and accused no.1 Umashankar kicked Kalua and they went away. PW9 Usha Bai
went to PW12 Sarpanch Bhaiya Lal and narrated the occurrence. He along
with PW4 chowkidar Bisahu Yadav came to the occurrence place and Exh.P-6
intimation report was sent through PW4 Bisahu Yadav to Police Station
Anuppur. On receipt of information PW14 sub-Inspector Raghvendra Baghel
went to the occurrence place and received Exh.D1 complaint given by PW9
Usha Bai and took up the investigation. He conducted inquest on the body
of Kalua and sent it for post mortem examination. He prepared Exh.P-7 map
and seized blood stained earth and plain earth from the occurrence place
and examined PW2 Shiv Kumari, PW7 Savitri Bai, PW9 Usha Bai, PW12 Bhaiya
Lal and some other witnesses and recorded their statements.
PW13 Dr. P.C. Joshi conducted autopsy on the body of Kalua at 11.45 a.m. on
19.7.1995 and found following injuries :
There was a compound fracture at the 1/3rd part of left forearm, which was
attached to the skin only.
There was compound fracture on the joint of right wrist which was attached
with skin only.
Stab injuries on right forearm 4cm x 3cm which were bone deep.
On the right partial part of the head incised wound 4cm x 2cm on the outer
side of ear.
One stab wound on the right side of chest.
6 wounds on the left thigh wherein one wound was 4cm x 3 cm, second 6cm x
4cm, 3rd 7cm x 3cm, 4th 5cm x 3cm, 6th 6cm x 2cm and last 4cm x 3cm and all
these wounds were muscle deep.
3 stab wounds on the front side of right leg which were muscle deep.
Stab wound on the right shoulder 4.5cm x 3cm x muscle deep.
One stab wound on left infrascapular region 6.5cm x 4cm x muscle deep.
One stab wound on lumber region 3cm x 2cm x muscle deep.
He expressed opinion that homicidal death has occurred due to hemorrhage
from external and internal injuries and issued Exh.P-31 post-mortem report.
PW14 sub-Inspector seized the blood stained clothes of the deceased and
sent them for chemical examination. On 22.7.1995 PW14 sub-Inspector
arrested all the accused and inquired them and on the information furnished
by accused no.3 Shivashankar, barchhi came to be recovered and on the
information furnished by accused no.4 Gaurishankar, farsa came to be
recovered and on the information furnished independently by the other
accused, lathis were recovered by him. He sent the recovered weapons to
chemical analysis and after obtaining the Forensic Laboratory report he
filed the charge sheet against the accused.
The prosecution examined PWs 1 to 14 and marked the documents. The accused
were questioned under Section 313 Cr.P.C. and their answers were recorded.
DWs 1 to 5 were examined on the side of defence. The trial court found all
the accused guilty of the charges and sentenced them as stated above. On
appeal by the accused, the High Court confirmed the conviction and sentence
of accused nos.1,3 and 4 and acquitted accused nos.5 and 6. Challenging
his conviction and sentence accused no.1 Umashankar has preferred the
present appeal.
Mr. Mahabir Singh, learned senior counsel appearing for the appellant,
contended that the eye witnesses have not stated that the appellant/accused
no.1 caused injury on the hands of deceased Kalua with lathi and the High
Court had given the benefit of doubt to accused nos.5 and 6 as no injury of
lathi has been found on the person of deceased and on the ground of parity
the appellant also deserves to be acquitted. We also heard the similar
submission made by Amicus Curiae Ms. Aakriti Dawar on behalf of appellant.
Mr. Samir Ali Khan, learned counsel appearing for the respondent State,
contended that the presence of the appellant and his overt act against the
deceased stood established by ocular testimony and also intimation report
in Exh.P-6 and the High Court in the impugned judgment has elaborately
considered the same and has confirmed his conviction and the same is
sustainable.
We carefully considered the rival submissions and perused the record.
9. Kalua @ Ramnath suffered 10 injuries in the occurrence as evident
from Exh.P-31 post mortem report and injuries no.1 and 2 mentioned therein
are compound fracture on the left forearm and on the right wrist
respectively and the other 8 injuries are stab and incised wounds. PW13
Dr. P.C. Joshi, who conducted autopsy, had opined that homicidal death has
occurred due to hemorrhage from external and internal injuries in the post-
mortem report. Exh.P-33 Query Memo was sent to him on 21.9.1995 with
respect to the compound fracture injuries on the hands and report he has
opined that the compound fracture could have been caused by hard and blunt
object besides a sharp edged weapon. In his testimony before court as PW13
he has reiterated the said opinion.
10. The eye witnesses to the occurrence are PW2 Shiv Kumari, mother of
Nan, PW7 Savitri Bai, mother of the deceased and PW9 Usha Bai, wife of the
deceased. All of them have testified that accused no.3 armed with barchhi,
accused no.4 armed with farsa and accused nos.1,2,5 and 6 armed with lathis
attacked Kalua with the said weapons and inflicted injuries on him.
Weapons barchhi and farsa are sharp edged whereas lathi is hard and blunt.
PW7 Savitri Bai has testified in her testimony in para 15 has stated that
lathi injuries were caused on the leg and waist. PW9 Usha Bai has
testified that appellant/accused no.1 Umashankar inflicted injury with
lathi. In the cross examination she has stated in para 16 that the lathi
injuries were inflicted on the legs and waist of the deceased. Referring
to the above testimony the High Court has observed that the said witness
has not stated that lathi injuries were caused on the hands of the
deceased. As per the post mortem report both the hands of the deceased
were attached with the skin only, rest of the portion found cut and
obviously the said injuries were caused by the sharp edged weapons. The
fact remains that compound fractures were found on the left forearm and
right wrist which as per medical opinion attributable to attack made by
hard and blunt object.
11. The High Court has given benefit of doubt by acquitting accused nos.5
and 6 on the ground that no injury of lathi was found on the person of the
deceased and the names of accused nos.5 and 6 were not mentioned in Exh.P-6
first intimation report and they could have been falsely implicated later
on account of enmity. On the contrary as already seen, there were compound
fractures indicative of attack with lathis. Be it may. The High Court had
elaborately considered the role and overt act of appellant/accused no.1
Umashankar and held that his presence stood established not only by the
ocular testimony but also in the first intimation in Exh.P-6 report his
name is specifically mentioned and concluded that he was sharing common
intention with accused nos.3 and 4, who were armed with barchhi and farsa
respectively and confirmed their conviction and sentence.
12. We do not find any substance in the submission of the learned senior
counsel appearing for the appellant that since accused nos.5 and 6 have
been acquitted; on the ground parity the appellant herein also deserves to
be acquitted. It is always open to the Court to differentiate the accused
who had been acquitted from those who had been convicted. The power of
the courts to distinguish the cases of one or more of the accused from the
other(s) is far too well recognized to need reiteration. Still, we may
notice the principle as stated in Gangadhar Behera Vs. State of Orissa
(2002) 8 SCC 381, wherein this Court observed as follows :
"........Even if a major portion of the evidence is found to be deficient,
in case residue is sufficient to prove guilt of an accused, notwithstanding
acquittal of a number of other co-accused persons, his conviction can be
maintained. It is the duty of the court to separate the grain from the
chaff. Where chaff can be separated from the grain, it would be open to
the court to convict an accused notwithstanding the fact that evidence has
been found to be deficient to prove guilt of other accused persons."
13. In our view, the High Court applied the said principle in
distinguishing the role of appellant herein from that of accused no.5 and
accused no.6, who have been acquitted. In other words, the High Court
rightly declined to acquit the appellant herein on the principle of parity.
The impugned judgment does not call for any interference under Article 136
of the Constitution of India.
14. In the result the appeal is dismissed. The bail bond shall be
cancelled and the appellant is directed to surrender before the Sessions
Judge, District Shahdol to serve out the remaining sentence, failing which
the learned Sessions Judge is requested to take him into custody and send
him to jail to serve his left over sentence.
...............................J.
(V. Gopala Gowda)
.................................J.
(C. Nagappan)
New Delhi;
December 9, 2014.
ITEM NO.1B-For Judgment COURT NO.10 SECTION IIA
S U P R E M E C O U R T O F I N D I A
RECORD OF PROCEEDINGS
Criminal Appeal No(s). 1451/2009
UMA SHANKAR GAUTAM Appellant(s)
VERSUS
STATE OF M.P. Respondent(s)
Date : 09/12/2014 This appeal was called on for JUDGMENT today.
For Appellant(s)
Mr. Kuldip Singh,Adv.
Mr. Gaurav Yadava, Adv.
For Respondent(s)
Mr. Mishra Saurabh,Adv.
Hon'ble Mr. Justice C. Nagappan pronounced the judgment of the
Bench comprising Hon'ble Mr. Justice V.Gopala Gowda and His Lordship.
The appeal is dismissed in terms of the signed order.
(VINOD KUMAR) (MALA KUMARI SHARMA)
COURT MASTER COURT MASTER
(Signed Reportable judgment is placed on the file
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