PREMIER HIGH SCHOOL Vs KHIMJI VIDHU
Bench: PINAKI CHANDRA GHOSE,UDAY UMESH LALIT
Case number: R.P.(C) No.-000428-000429 / 2000
Diary number: 16510 / 1999
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos.2096-2098 of 2009
State of M.P. …. Appellant
Versus
Ashok & Others etc. …. Respondents
J U D G M E N T
Uday Umesh Lalit, J.
1. These appeals by special leave challenge the Judgment and
Order dated 11.01.2007 passed by the High Court of Judicature of
Madhya Pradesh, Jabalpur bench at Jabalpur in Criminal Appeals Nos.
170 of 1995, 841 of 1995 and 369 of 1996 by which respondents
Ashok s/o Banshilal Vedehi, Raju @ Rajendra s/o Banshilal Vedehi,
Gullu @ Rajesh s/o Banshilal Vedehi, Gouri Shankar s/o Banshilal
Vedehi, Vidhna @ Ramdas s/o Lallulal Kewat, Surendra s/o Harilal
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Vedehi were acquitted by the High Court of all the charges leveled
against them.
2. According to the prosecution one Tikaram son of Chote Lal
Pandey after finishing his duty was returning home at 8:00 p.m. on
11.04.1989. On the way he met his younger brother PW13 Sheetal
Prasad. Both were coming on bicycles, PW13 being 10-15 feet behind
said Tikaram. When Tikaram reached Tilwaraghat he was stopped in
front of the house of Hari Maharaj by Dibbu @ Devendra by catching
his bicycle. Said Dibbu then poured petrol over him and Jittu @
Jitendra burnt him by igniting a match stick. Tikaram started burning
and ran from the spot. He was surrounded by present respondents and
two others namely Harilal and Banshilal. All of them exhorted to beat
him and to burn him and that he should not be allowed to run from the
spot. Respondent Vidhna @ Ramdas threw a burning tyre upon him.
While Tikaram was running helter-skelter, Harilal threw a sword at
him. Tikaram ran to the house of PW3 Vinod and fell there. PW3
extinguished the fire. The incident was witnessed by PW13 who ran to
the house and conveyed the fact of Tikaram having been set afire to
the inmates of the house. As a result, PW4 Ravindra Kumar Pandey
son of said Tikaram and PW15 Laxmi Prasad Pandey rushed to the
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scene of occurrence. Tikaram disclosed to both PWs 4 and 15 that he
was set afire in the aforesaid manner and by the persons mentioned
above. Tikaram was then removed to Medical College Hospital,
Jabalpur.
3. On receiving information, PW16 inspector R.P. Singh went to
the casualty ward and enquired about the condition of Tikaram with
letter Ext.P-30. PW18 Dr. A.C. Nagpal gave certificate that Tikaram
was conscious and in a position to speak. PW16 inspector R.P. Singh
thereafter took the statement of said Tikaram, translation of which is
to the following effect:
“Sir, I am residing at Ramnagra. Today I was going to Ramnagra after performing my duty on Petrol Pump. This incident occurred at Tilwaraghat opposite the house of Hari Maharaj. I was going by my cycle. My brother Sheetal Prasad was following me. Dibbu caught hold my cycle and stopped me and poured petrol on me from a Jug and Jeetu set fire on me by a Match Box. My body started burning. Hari, Surendra, Bigna, Ashok, Bansi, Raju and the son of sister of Bansi Maharaj who lives in Kamla Nagar who has beard, the younger son of Bansi Gullu and 2-3 other persons from city their names I do not know, surrounded me. I ran away and entered into a room of house of Vinod Kumar situated nearest and they all were crying “Maaro Maaro Sale Ko, Bachne Na Paye” and I fell down there. There were so many persons
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present who have seen this incident. There is an old enmity and quarrel was going on between us and Dibbu etc. For taking revenge from the said enmity today they poured petrol on me and set on fire, in order to kill me. My whole body has been burnt. My clothes also have been burnt. Report has been read over and the same has been written as stated by me. Please investigate the matter.”
4. Pursuant to the aforesaid statement recorded at 8:30 p.m. Dehati
Nalishi Ext. P-20 was lodged and crime was registered. Tikaram was
shifted to ward no. 11 for further treatment. On the same night
panchnama was prepared by said PW16. In the night of 11.04.1989
and 12.04.1989 PW5 Executive Magistrate S.P. Meshram recorded
statement Ext. P-17 of said Tikaram. The statement was recorded after
due certification from doctor about consciousness and fitness of said
Tikaram. The translation of the statement Ext. P-17 is as under:-
“On 11.04.1989 at about 8 O’clock in the evening I was going to my home in Ramnagra from Jabalpur. Near Tilwaraghat Dibbu alias Devendra poured petrol on my body and Jittu alias Jitendra burnt me by igniting the matchstick. At that time I was going on a bicycle on the road. They stopped me and did this act. My younger brothers Sheetal and Manohar were about 15 Ft. behind me. I had enmity with Dibbu and Jittu from before. So
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they did this to me. Hari, Banshi, Ashok, Raju, Gaurishankar, Gullu, Surendra and Vidhna were the persons who assaulted me.”
5. On 12.04.1989 at about 8:15 p.m. Tikaram succumbed to
his injuries. On 13.04.1989 at 10:30 a.m. post mortem on the
body of said Tikaram was conducted by PW17 Dr. D.K.
Sakalle. According to the post mortem following facts were
noticed:
“There were third degree burns on the body of the deceased on the scalp, all around neck, face, ears, lips, all over the trunk except the upper joint of the thighs, over scrotum and penis all around both upper limbs except tips and nails of fingers on right side. Third degree burns present all around left thigh, on right thigh all around except the back part and over upper part of the left leg and the middle part of the right leg. There were blisters in some parts of the left leg due to burns. Similarly there were some blisters on the back of the right leg. There was inflammation around the burn injuries. The deceased was burnt about 90%. Apart from the burn injuries the following injuries were also there on the body of the deceased. Incised wound obliquely on back of chest. It was 4” long, 1” broad and maximum depth was 3/4". It contained a clot of blood and there was an abrasion on its left side. There was no injury in any internal organ of the deceased.”
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6. After due investigation charge sheet was filed and 10 accused
persons were sent for trial. The prosecution examined twenty
witnesses while three witnesses were examined in defence. Dying
declarations namely statements Exts.P-20 and P-17, so also oral
declarations as deposed by PWs 4 and 15 and the eye-witness account
through PW13 were principally relied upon by the prosecution.
Accepting the case of prosecution, the trial court convicted all the
accused. Accused Dibbu @ Devendra and accused Jittu @ Jitendra
were found guilty under section 302 I.P.C. and section 148 I.P.C.
while others namely the present respondents along with Harilal and
Banshilal were found guilty under section 302 read with section 149
I.P.C. Accused Dibbu @ Devendra and accused Jittu @ Jitendra were
sentenced to life imprisonment under section 302 I.P.C. and to
rigorous imprisonment of one year under section 148 I.P.C. All the
other accused were sentenced to life imprisonment under section 302
read with section 149 I.P.C. and to rigorous imprisonment for 6 month
under section 147 I.P.C.
7. All convicted accused persons challenged their conviction and
sentence by filing Criminal Appeal Nos. 170 of 1995, 841 of 1995 and
369 of 1996. During the pendency of said appeals it was reported that
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accused Harilal and Banshilal had died and as such their appeals were
declared to have abated. The High Court after going through the
record found that the case of the prosecution was fully established as
against accused Dibbu @ Devendra and accused Jittu @ Jitendra. The
High Court however gave benefit of doubt to the respondents on the
premise that they had reached the spot after the commission of offence
and as such the charge of formation of unlawful assembly by them
was not established. The observations by the High Court in that behalf
were as under:
“Considering the over-all evidence on record, it is proved beyond reasonable doubt that Dibbu alias Devendra and Jittu alias Jitendra have committed the offence. The case of Dibbu and Jittu is established by the prosecution beyond reasonable doubt in commission of offence. As regards other appellants in all the connected appeals are concerned, they are entitled for the benefit of doubt. It is narrated in the dying declaration and Dehati Nalishi that they reached the spot after the commission of offence. Therefore, formation of unlawful assembly by them is not established.”
The judgment of the High Court affirming their conviction and
sentence has not been challenged by the accused Jittu @ Jitendra and
Dibbu @ Devendra. The judgment to the extent it acquitted the
present respondents of all the offences is presently under challenge at
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the instance of the State of Madhya Pradesh in these appeals by
special leave.
8. Ms. Vanshaja Shukla, learned advocate appearing for the State
submitted that the role of the present respondents in the commission
of crime was clearly made out from the dying declarations as well as
from the testimony of the eye witness. The Injury as found in the post
mortem also supported the eye witness account, which in turn
indicated the role played by accused other than those who stand
convicted by the High Court. In her submission, the view taken by the
High Court was completely unsustainable. Mr. Akshat Srivastava
learned advocate appearing for the respondent supported the judgment
of the High Court. It was submitted that the principal role as alleged in
the dying declarations was not as regards the present respondents and
as such they were rightly granted benefit of doubt by the High Court.
During the course of hearing it was submitted that respondent
no.6 namely Surendra s/o Harilal Vedehi had died during the
pendency of these appeals. The learned counsel appearing for the
State was directed to ascertain the fact. Accordingly death certificate
of said respondent no.6 has been filed on record indicating that he
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died on 01.10.2014. We therefore direct that the proceedings stand
abated as against said respondent no.6.
9. Statement Ext. P-20 leading to the registration of crime as well
as statement Ext. P-17 recorded by the Executive Magistrate are dying
declarations by Tikaram. Both these statements are consistent and
name the present respondents and state the role played by them in
surrounding Tikaram and giving cries that he be beaten and should not
be left. In the face of such assertions, it is impossible to accept that
these respondents arrived at the scene of occurrence after the crime
was completed. Their role is that of participants in the crime who did
not allow Tikaram to escape by encircling him. The finding rendered
by the High Court is against the record.
10. Both the statements clearly referred to the presence of PW13. It
was PW13 who immediately ran home and intimated the fact that
Tikaram was set afire, to the inmates of the house. Consequently PW4
and PW15 arrived at the scene of occurrence. Tikaram was then
removed to the hospital. In his testimony PW13 stated that while
Tikaram was burning, respondent Vidhna @ Ram Das threw a burning
tyre upon him and original accused Harilal threw a sword at him. The
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post mortem clearly shows an incised injury in the back suffered by
said Tikaram, which completely supports such assertion. Having gone
through the record we find the presence of said PW13 completely
established and accept him to be eye witness to the occurrence. It is
relevant to note that the High Court has also not disbelieved the
testimony of PW13.
11. In the light of the eye witness account and the post mortem
report it is quite clear that the respondents were present when Tikaram
was burning alive. The sequence of narration certainly shows that they
were waiting in ambush. It may be that only two of them set Tikaram
afire but the others definitely ensured by surrounding Tikaram that he
would not be allowed to escape. Further, throwing of burning tyre and
the sword would also indicate the active role played by them. Even if
one of them was ready with a sword, that is clearly indicative of the
level of preparedness on their part and we see no reason how they
could not be said to be members of unlawful assembly. It was a crime
which was committed by all of them guided by same purpose, acting
in concert achieving the result that was desired. The intent of the
entire assembly was clear, eloquently established by their presence,
preparedness and participation. Though we are conscious that while
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considering an appeal against acquittal we should be extremely slow
in interfering, in our considered view the assessment made by the
High Court in the present case is completely unsustainable and against
the record.
12. We therefore allow these appeals, set-aside the judgment and
order of acquittal rendered by the High Court and restore the
judgment of conviction and sentence as recorded by the trial Court
against the respondents. The respondents shall be taken in custody
forthwith to serve the sentence awarded to them.
…………………………J. (Pinaki Chandra Ghose)
…………………………J. (Uday Umesh Lalit)
New Delhi, July 01, 2015
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