UMA SHANKAR GAUTAM Vs STATE OF M.P.
Bench: V. GOPALA GOWDA,C. NAGAPPAN
Case number: Crl.A. No.-001451-001451 / 2009
Diary number: 27764 / 2008
Advocates: KULDIP SINGH Vs
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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.
1. 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.
2. 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
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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.
3. 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
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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.
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4. 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 :
i) There was a compound fracture at the 1/3rd part of left forearm, which was attached to the skin only.
ii) There was compound fracture on the joint of right wrist which was attached with skin only.
iii) Stab injuries on right forearm 4cm x 3cm which were bone deep.
iv) On the right partial part of the head incised wound 4cm x 2cm on the outer side of ear.
v) One stab wound on the right side of chest.
vi) 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.
vii) 3 stab wounds on the front side of right leg which were muscle deep.
viii) Stab wound on the right shoulder 4.5cm x 3cm x muscle deep.
ix) One stab wound on left infrascapular region 6.5cm x 4cm x muscle deep.
x) 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.
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5. 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.
6. 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.
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7. 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.
8. 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
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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
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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
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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
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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
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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)