SHIVSAHAI SINGH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) The appellant Shivsahai Singh, along with six others, has been convicted under S.396/397, I.P.C. and each sentenced to imprisonment for life and fine of Rs. 500/-or in default further R.I. for one year. This appellant and co-accused Ramsajeevan have been further convicted under S.25/27 of the Arms Act and sentenced to R.I. for two years on each count, both the sentences to run concurrently. The seventh accused Amresh Kumar who was charged under S.412, I.P.C. has been acquitted and the State has not preferred any appeal against acquittal of Amresh Kumar.

(2.) It is not in dispute that on 5-10-1979 at about 8.45 p.m. the deceased Krishna Kumar Agrawal with his family members Ruliram (P.W.4) his father, wife Bala Devi (P.W.2), Vedprakash (P.W.5), son-in-law, Shambhu Kumar (P.W.6), nephew and other inmates were listening the radio in their house in village Bhatgaon, P.S. Pratappur, district Sarguja. His father Ruliram (P.W.4) was lying on a cot in the parchi after his dinner. The deceased was running a shop in the village. At that time some one knocked the door and one of the dacoits made the deceased open the shop and he purchased a torch with cell. At that time his five other companions also entered into the shop, one of them armed with a gun and two others with country made pistols. The dacoits demanded the keys where he had kept his cash and ornaments. On his refusal one of the dacoits fired his gun, hitting the deceased who fell down. Then the two other dacoits fired their pistols injuring Ruliram and Shambhu Kumar. Then the house and the shop were ransacked and cash, ornaments, clothes, wrist watches, and two transistors were looted. Bala Devi and Vedprakash out of fright ran away from the house. They returned after the dacoits had gone away. Then in one truck the deceased and Shambhu Kumar were taken to Vishrampur where the report (Ex. P.1) was taken down by Mohanlal (P.W.1) and then he lodged the same in the police station Vishrampur at about 1.30 a.m. The deceased was then shifted to the District Hospital Ambikapur with Shambhu Kumar. In the meanwhile, Bala Devi along with Ruliram came to Ambikapur in another truck. Since the incident pertains to Pratappur police station the F.I.R. was transferred there on 6-10-1979. On 11-10-1979 at about 4.30 p.m. Krishna Kumar died in the hospital. On 6-10-1979 in a nearby village Surajpur at about 10.40 a.m. co-accused Asgar Ali alias Shankar was arrested and from his possession six gold bangles, one gold locket, one Ricoh wrist watch and some cash were seized. At about 11.30 to 12 noon on the same day at Surajpur road railway station co-accused Janardhan and Bhola, who are brothers, were arrested and from their possession ornaments, clothes and some cash were seized. On the same day at 2.30 or 3 p.m. appellant Shivasahai Singh and co-accused Ramsajeevan were arrested at Surajpur Bus Stand and from them country made pistols, clothes, one Murphy transistor and silver utensils were seized. On the same day at about 12 in the noon at Manendragarh bus stand co-accused Indrapal Singh was arrested with a single barrel gun, cartridges, wrist watch, clothes and other articles were seized. The acquitted accused Amresh Kumar was also arrested on 8-10-1979 in village Bhatgaon after learning about his complicity in the crime and from his possession one Sari and Lungi were seized. The deceased died on 11-10-1979 and the post mortem was done by the Civil Surgeon Dr. J.M. Saha (P.W.7) and he found 32 punctured wounds in his abdomen damaging his large and small intestines. Since the injuries were numerous it was not possible to take out the pellets while he was alive. The injuries were sufficient in the ordinary course of nature to cause death and he was shot from point blank range. The seized articles were put up for identification in the parade conducted by Girdharilal (P. W. 36) on 25-11-1979 and the same were duly identified by Bala Debi. On completing the investigation the seven accused were charge-sheeted. Their defence was of denial. They have also disowned the seizures and contended that only cash was seized from them which belong to them. The learned Additional Sessions Judge on appreciating the evidence on record found the case proved against the appellant and five other co-accused for the offence under S.396/397, I.P.C. Besides, he also found the case proved against the appellant and Ramsajeevan under the Arms Act. They have been accordingly convicted and sentenced, relying on the seizure of stolen articles within a few hours of the dacoity and murder and there being no explanation of the accused regarding possession of these articles, it has been inferred that they alone committed murder and dacoity under S.114 of the Evidence Act, since the murder and dacoity were committed in the course of the same transaction.

(3.) We have now only to consider the case of appellant Shivsahai Singh. The other convicted accused have not preferred any appeal. It is contended by the learned counsel for the appellant that the recovered articles have not been satisfactorily identified, inasmuch as no identification marks have been found on these articles; the licence for the transistor has not been produced and in any case the deceased was shot only to frighten him and there was no intention to commit his murder, and the deceased would have survived if proper treatment was given. We do not find any force in these contentions. As already mentioned, the deceased sustained as many as 32 pellet injuries in his abdomen damaging his vital organs. Somehow he survived for a few days. According to Dr. J.N. Saha (P.W.7), his intestines were damaged and they had become blackened due to pellets embedded in them, they could not be removed as they were numerous and would have endangered his life. The injuries were sufficient in the ordinary course of nature to cause death and he was shot from point blank range. Therefore, the intention clearly was to commit murder while committing dacoity. The appellant Shivsahai Singh was arrested within a few hours at Surajpur Bus Stand at about 2.30 p.m. i.e. within 18 hours of the incident. From his possession one Murphy transistor (Art.30) and one Lungi (Art.37) and one georgette sari (Art.41) with cartriges and country made pistol were seized as per seizure memo Ex. P.28 by Head Constable Jainath Ram (P.W.27) in the presence of Panchas Pooran Chand (P.W.40) and Ratanlal. Nothing has been brought out in the cross-examination to discredit these witnesses and this is also not seriously disputed by the appellant. The stolen articles were put up for identification on 25-11-1979 by Girdharilal (P.W.36) and the same were duly identified, including the Murphy transistor (Art.30), Lungi (Art.37) and georgette sari (Art.41), by Bala Devi (P.W.2), wife of the deceased. There is mention of these articles in the F.I.R. (Ex. P.1) lodged immediately after the dacoity. She has also identified these articles in evidence. It is true that the articles looted included clothes from the shop of the deceased which means that they were new articles, but so far as georgette sari is concerned this belonged to her and she used to wear it and so she has no difficulty in identifying the sari. She has not been cross-examined regarding the identification of these articles. So far as the Lungi (Art.37) is concerned, the same was purchased by the deceased for being given to the Pujari and there is a marking on the Lungi by the deceased which she had recognised. The Murphy transistor has also been identified by her which was in constant use. She has not been cross-examined regarding this transistor. Since the ownership is not in dispute, it was not necessary to produce the licence. It is also not known whether actually licence was taken out for the transistor or not. The appellant has not claimed any of these articles nor he has explained how he came in possession of these Articles within a few hours of the dacoity and murder. The appellant and the 5 others were arrested immediately after the dacoity and murder from near the place of incident. Obviously they were on the run. From the appellant and co-accused Ramsajeevan country made pistols were also seized and from another co-accused Indrapal Singh a single barrel gun was seized. All these persons are residents of Uttar Pradesh and they have not explained as to how they happened to be there with stolen articles. Therefore an inference could be drawn that the appellant and the 5 other accused had committed the murder and dacoity from the recovery of recently stolen articles from them and the same were committed during the course of the same transaction. The Supreme Court in Sunderlal v. State of Madhya Pradesh, AIR 1954 SC 28 has held that as the ornaments were established to be the ornaments worn by the deceased and the accused was not in a position to give any satisfactory explanation as to how he came to be in possession of the same on the very same day on which the alleged murder was committed the circumstantial evidence was sufficient to hold the accused responsible for the murder of the deceased.