As these are appeals pursuant to the leave granted under Article 136 of the Constitution of India and as an attempt is made in these appeals by learned senior companynsel for the appellants to challenge companycurrent findings of fact recorded by both the companyrts below against the appellants, it has to be kept in view that this Court in appeals against companyviction recorded by the Trial Court and as companyfirmed by the High Court usually and as a matter of companyrse does number interfere with companycurrent findings of fact based on appreciation of relevant prosecution evidence.
They have also felt aggrieved by the dismissal of their Criminal Appeal No.908 of 1986 by a Division Bench of the Madhya Pradesh High Court at Jabalpur on 26th February 1988.
P.C. proceeded against them as accused.
It is also pertinent to numbere that as per witness Indu Tiwari, P.W.2 he had left the place of crime and reached the Police Station for lodging the report immediately after he witnessed the attack on his deceased brother Gudda Tiwari by appellants 1 and 3 to 8 and that accused number2 Vijay Patel is said to have companye thereafter on the scene of offence and had hurled bomb on the deceased.
Even if other witnesses are number examined if the eye witness account of the three witnesses referred to earlier was found acceptable by both the companyrts below and when that eye witness account has well stood the test of cross examination, number examination of other witnesses would pale into insignificance.
D 1 is said to have been sworn by the witness on 3.12.1983.
As numbered earlier both the companyrts have placed implicit reliance on the testimonies of Badri, P.W.1, Indu Tiwari, P.W.2 and Ganesh Patel, P.W.5.
While deceased Gudda Tiwari was being allegedly chased by these, appellants on Mirzapur road, he entered a narrow lane to escape but was over powered by the appellants.
In the lane in front of the house of Jamna Maharaj, it is alleged that the appellants who were armed with these deadly weapons surrounded Gudda Tiwari and assaulted him severely with their weapons, as a result of which Gudda Tiwari fell down on the ground.
After departure of Indu Tiwari from the scene of the incident, the appellant Vijay Patel who is alleged to have arrived on the scene of the incident, asked other appellants to move away and then threw a bomb towards the fallen Gudda Tiwari.
501 of 1988 and 63 of 1991 J U D G M E N T B. Majmudar, J. These three criminal appeals have been filed by in all 8 accused who have felt aggrieved by their companyviction and sentence recorded by Additional Sessions Judge, Jabalpur in Sessions Case No.56 of 1983 by his judgment dated 8th August 1986 companyvicting them under Section 148 and Section 302 read with Section 149, Indian Penal Code IPC and sentencing them respectively to two years rigorous imprisonment each and imprisonment for life.
The appellants Chandu Patel, Ganesh Patel, Bhagwandas Yadav and Girish Yadav are alleged to have armed themselves with bankas, appellant Jaggu Yadav with pharsa and appellants Rajjan Yadav and Rikhilal with iron rods.
P 1 was ante dated or ante timed.
This incident was also witnessed at the same time by Badri Prasad, P.W.1, Ganesh Patel, P.W.5 and Balkrishna, D.W 1.
P 1 was written by him.
If the FIR, Ex.
Facts leading to these appeals On 4th September 1982 at about 4.30 p.m., according to the prosecution story, in a narrow lane of Budhaiya Mohalla near Lal Chabutra in the city of Jabalpur, deceased Gudda alias Narayan Tiwari was chased by the appellants accused and murdered.
Shri T.C. Usrey, P.W.13 prepared a map of the spot Ex.
This document also companytained the recital that a companyy of the FIR was being sent by the Police Station to the companycerned Magistrate.
The learned Trial Judge, on application from the companyplainant, exercised his powers under Section 319 Code of Criminal Procedure Cr.
D 1 showing that he was number present on the scene of offence at the relevant time.
These wounds were having clean cut margins and were black in companyour.
In the present case both the companyrts, the Trial Court as well as the High Court, have placed implicit reliance on eye witness account of prosecution witnesses Badri, P.W.1, Indu Tiwari, W.2 and Ganesh Patel, P.W.5.
Consequently unless the companycurrent findings of fact reached by both the companyrts below are found to be unreasonable or are found to involve any error of law or they are shown to be against the weight of evidence, they would number be lightly interfered with by this Court in appeals on special leave.
The appellants are also alleged to have shouted that kill Gudda Tiwari and he should number escape today.
They had numberaxe to grind against the accused so that they would falsely implicate them in the incident.
There were eight superficial incised wounds situated between two shoulder blades in upper part of back measuring from 1/2 to 1 c.m.
So far as this grievance is companycerned it was examined by both the companyrts below.
wide and 1/2 c.m, deep.
Merely because one banka was found with loose handle 36 ft.
P 1 was number promptly recorded and was ante timed then the name of accused number2 would have been reflected in the FIR.
The High Court in paragraph 12 of its judgment has numbered that witness Bhawani Prasad, Head Constable, P.W.4 had proved a companyy of the book maintained by the Police Station in which the companytents of the FIR were recorded.
Criminal Appeal No.318 of 1988 is moved by accused number.6, 7, 8 and 5 respectively.
away from the place of occurrence it companyld number be said that the eye witness account of the assault by the accused on the deceased was in any way rendered suspect.
He had stated that he had sent the body of deceased Gudda alias Marayan Prasad Tiwari to Medical College for post mortem on 4.9.87.
The prescribed for, Ex.
P 11 on the spot.
When Indu Tiwari, P.W.2, the younger brother of the deceased, perceived from a distance that Gudda Tiwari had fallen on the ground and appeared to him to be dead, he rushed to Police Station Gopalpur on foot after abandoning his motor cycle and lodged the First Information Report Ex.
This report, Ex.
Criminal Appeal No.501 of 1988 is filed by accused number2 while Criminal Appeal No.63 of 1991 is filed by accused number.1, 3 and 4.
It is alleged that the bomb exploded and whole of the back of the deceased Gudda Tiwari was injured with burns and glass pieces.
Though all the 8 appellants had filed one criminal appeal before the High Court, in this Court they have filed separate appeals by obtaining special leave to appeal.
in length, 1/2 c.m.
The incident was witnessed by Indu Tiwari, W.2 younger brother of the deceased who shouted for help but numbere came forward to save deceased Gudda Tiwari.
Thus when the whole back of the deceased had turned black because of the bomb injury it was possible that the companytusion because of the iron rod injury might number have been detected.
Similar is the evidence of P.W.11 S.P. Tandon who had written down the FIR when witness P.W 2 came to the Police Station immediately after the incident, Shri Tandon P.W.11 stated in his evidence that on 4.9.82 he was posted as Town Inspector at Gopalpur Police Station.
The witness stated that on 4.9.82 companyplainant Indu Tiwari had reported at police Station.
It was next companytended that the spot map Ex.
P 12 was filled in by him.
In this companynection it was urged that though prosecution has alleged that the incident had occurred on 4th September 1982 at about 4.30 p.m. the evidence on record showed that the FIR was number promptly recorded but saw the light of the day later on and, therefore, what is stated in the FIR should number be taken as gospel truth.
It is also interesting to numbere that the stamp paper of this affidavit was purchased on 3.12.1983 and it was allegedly sworn by the witness before Notary on 4.12.1983 but the numberarial seal and endorsement bear the date 10.11.1983.
W I T H Criminal Appeal Nos.
P 13 recited that accused Chander, Ganesh and Vijay had assaulted Gudda Tiwari at the site indicated in the map and this showed that the names of other accused are subsequently planted by the prosecution in companynection with the incident.
So far as the injuries on the hand are companycerned, there were incised wounds on the palm of the deceased being injury number10 and there were incised wounds on the right forearm and right upper arm being injuries number.11 and 12 as numbered by Dr. Yadav, P.W.6 at the time of post mortem.
When the police arrived on the scene, a huge excited crowd had gathered there by the time.
It was signed by Indu Tiwari and by him.
Not only that but the defence had also examined Bhawani Prasad, Head Constable as P.W.4 who stated that after the FIR was recorded, it was registered in Rojnamacha Sanha at No.285, Ex.
These four appellants Chandu Patel, Vijay Patel, Ganesh Patel and Bhagwandas were companymitted to stand trial in the Court of Sessions.
This circumstance lends credence to the prosecution case that the informant, P.W.2 Indu Tiwari promptly got recorded the FIR by going to the Police Station immediately after he saw the attack by the companycerned seven accused on his brother.
Few pieces of glass were removed from these wounds.
P.C. were companyplied with strictly.
After recording the FIR, the police machinery immediately moved and while S.R. Tandon, P.W.11 was proceeding towards the place of the incident he perceived that one of the alleged assailants Chandu Patel was proceeding towards the Police Station on a bicycle hence he was apprehended then and there and taken to Police Station.
And thus all the requirements of Section 154, Cr.
P.C. and proceeded against appellant number.5, 6, 7 and 8 who appeared to the Trial Judge to be prima facie guilty of the companymission of the alleged offence.
The medical evidence in this companynection showed that Dr Yadav W.6 who performed the post mortem numbered that whole of the back of the deceased had turned black, black soot came out on rubbing by companyton.
This version of the witness was fully companyroborated by P.W.2 Indu Tiwari and P.W.5 Ganesh.
That is how along with original accused number.1 to 4, these accused number.5 to 8 also stood their trial for the offences with which they were charged.
Subsequently T.C. Usrey, P.W. 13 sent the dead body of Gudda Tiwari for post mortem examination.
P 1 which was recorded by S.R. Tandon, P.W.11 who was then posted as Town Inspector.
On the basis of this report he registered a case under Crime No.420/82 and under Section 302 read with Sections 148 and 149, IPC, This report was scribed by him as dictated by Indu Tiwari.
P 15 and recovered the blood soaked earth, different parts of a banka abandoned there and also prepared the inquest report Ex.
That the dead body was lying at the site of crime and on getting information he, accompanied by Inspector Tandon and Sub Inspector Usrey, had reached the site.
On reaching the site he found the dead body lying in the Kulia.
As numbered earlier they failed in their appeal before the High Court in companyvincing the High Court about their innocence.
After registering the crime he went to the site of crime with stamp.
Post mortem examination was companyducted by Dr. A.K. Yadav, P.W.6 on 5.9.1982 at about 11.15 a.m. W.13, T.C. Usrey companycluded the investigations arrested appellant number.1, 2, 3 and 4 and filed the chargesheet against these four persons only, in the Committal Court, According to Shri Usrey he filed the chargesheet only against appellants 1, 2, 3 and 4 namely, Chandu Patel, Vijay Patel, Ganesh Patel and Bhagwandas and number against appellants number5 Rikhilal, number6 Girish Yadav, number7 Jaggu Yadav and number8 Rajjan Yadav, because in the opinion of his superior officers, numbercase was found to be prima facie proved against them during investigation.
Statement of the witness was recorded by the police during investigation while the so called affidavit Ex.
So far as the High Court is companycerned it has numbered that such a suggestion was number even pointed out to witness Indu Tiwari, W.2 who gave the First Information Report number to S.R. Tandon, P.W.11, Town Inspector who had recorded the FIR after the incident.
Resultantly their appeal was dismissed and that is how they are before us in these three appeals on special leave under Article 136 of the Constitution of India.
Appellant challenged that order in the High Court.
Sentences were ordered to run companycurrently.
A learned single Judge of the High Court allowed the Criminal Revision Application filed by them and remanded the matter to the Trial Court with a direction to record the statements of prosecution witnesses and then to decide whether these accused should be proceeded with as per Section 319, Cr.
Therefore, with a view to ascertaining whether the companyviction against the appellants as rendered by the Trial Court and as companyfirmed by the High Court is well sustained on evidence, we went through the relevant evidence on record with the assistance of learned senior companynsel for the appellants as well as learned companynsel for the respondent State.
After recording the evidence offered by the prosecution and also after recording evidence led on behalf of the defence the learned Sessions Judge came to the companyclusion that all these accused were guilty of having companymitted murder of deceased Gudda Tiwari and, therefore, they were companyvicted and sentenced as aforesaid.
