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Madhya Pradesh High Court · body

2003 DIGILAW 1170 (MP)

Zitu Singh v. State of M. P.

2003-10-21

ASHOK KUMAR TIWARI, S.L.KOCHAR

body2003
JUDGMENT Kochar, J.--1. The appellants named above, being dissatisfied with the judgment dated 15.5.1995, rendered by the learned Third Addl. Sessions Judge, Shajapur in. S.T. No. 475/94, thereby finding the appellants guilty of the offences punishable under sections 302/34, 325/34 and 323/34 of the Indian Penal Code, convicted and sentenced them each to suffer imprisonment for life with fine Rs. 500/-, in default of payment of fine to suffer RI for three months, RI. for one year and fine Rs. 200/-, in default of payment whereof to suffer R.I. for two months and fine Rs. 100/-, in default of payment of fine to suffer RI. for one month respectively, have preferred this appeal. All the substantive sentences are directed to run concurrently. 2. The brief facts of the prosecution case as unfolded before the trial Court were that on 8.1.1992, complainant Shivlal lodged a report that about one and a half months before, there was a quarrel between him and Chandersingh and since then, their relations were strained. On the fateful night of 8.1.1992, the complainant alongwith Baldeo and Bapu were trying to sleep in their field. At that time, the appellants came over there armed with lathis and farsi and started beating them. When the complainant, Bapu and Baldeo got up, the three assailants fled away from the place of occurrence, whom the complainant party identified in the electric light. In the assault, Shivlal sustained injuries on his head, Baldeo on his head, both hands, back and left leg and Babu sustained injuries on his right elbow. They cried for help but, none turned up to rescue them. Since it was late hours in the night, the report was lodged the next day and investigation ensued. 3. The injured were sent to the hospital for medical examination. The injury-reports of Bapu, Shivlal and Baldeo are Ex. P-3, P-18 and P-19 respectively. Baldeo died during treatment and his postmortem Examination Report is Ex. P-1. Spot map was prepared and statements of witnesses were recorded. After completion of investigation, the appellants were charge-sheeted. They abjured their guilt and claimed trial. The learned trial Court recorded the statements of the witness and after hearing both the parties, found the appellants guilty of the offences with which they were charged convicted and sentenced them each as indicated herein above. 4. After completion of investigation, the appellants were charge-sheeted. They abjured their guilt and claimed trial. The learned trial Court recorded the statements of the witness and after hearing both the parties, found the appellants guilty of the offences with which they were charged convicted and sentenced them each as indicated herein above. 4. We have heard Shri Viveksingh, learned counsel for the appellants and Shri G. Desai, learned Dy. Advocate General, appearing for the State and perused the entire record. 5. Deceased died during the course of treatment. Autopsy on his dead body was conducted by Dr. RC. Sharma (PW 1) and issued the Postmortem Report (Ex. P-1). According to the postmortem report, Baldeo died due to head injury leading to brain. It is, thus, clear that Baldeo met a homicidal death. Even otherwise, the homicidal death of Baldeo has not been challenged by the learned counsel for the appellants before this Court. 6. The conviction of the appellants is based on the eye-witnesses' account given by PW 3 Shivlal and PW 6 Bapu. Both of them have received injuries in the same incident alongwith the deceased Baldeo. PW 3 Shivlal sustained grievous injury on his right shoulder. He was examined by Dr. R.S. Dangad (PW 10). His injury report is Ex. P-18. Dr. Kapil Sahai (PW 5) proved the X-ray report vide Ex. P-6 and P-7 of Shivlal. Their presence on the spot along with the deceased Baldeo is amply proved by their own statements. Therefore, there is absolutely I no room for doubt that they had witnessed the incident and also sustained injuries in the same incident. 7. PW 3 Shivlal has named three appellants about their presence and participation for causing injuries to deceased Baldeo to him and PW 6 Bapu. Whereas PW 6 Bapu has identified and named only appellant No.3 Chandersingh. Since he did not name and identify the appellants No.1 and 2, he was declared partly hostile. He was medically examined by PW 4 Dr. Anand Kumar Parmar who found two simple injuries on his person. 8. In the light of the evidence of the eye-witnesses PW 3 Shivlal and PW 6 Bapu, medical report and the First Information Report lodged by PW 3 Shivlal, the participation of all the appellants in the incident is amply proved. 9. Anand Kumar Parmar who found two simple injuries on his person. 8. In the light of the evidence of the eye-witnesses PW 3 Shivlal and PW 6 Bapu, medical report and the First Information Report lodged by PW 3 Shivlal, the participation of all the appellants in the incident is amply proved. 9. Now the crucial question is in the facts and circumstances of the present case, whether all the three appellants had shared common intention to commit murder of deceased Baldeo or not. 10. The common intention for commission of crime can be determined on the basis of the surrounding circumstances like motive, nature of weapon of offence, participation of the accused persons, nature of injuries caused and presence of any intervening factor because of which, the accused persons were prevented to finalise their decided plan. The prosecution has to establish pre-meeting of minds, premeditation and pre-plan between the accused persons for commission of a particular offence. In the present case, PW 3 Shivlal, in his cross-examination (para 8) has deposed that they were having strained relation on account of grazing the cattle in the field with the accused persons. This fact finds corroboration from the First Information Report Ex. P-26. Therefore, the appellants were having motive for committing the crime. PW 3 Shivlal has testified that the appellants were having lathi and farsi, a sharp edged weapon in their possession. But, the handle of farsi was used for causing the injuries to them. Medical evidence of Dr. R.S. Dangad (PW 10) and Dr. Anand Parmar (PW 4) is not disclosing the presence of any injury on the person of deceased Baldeo and on injured witnesses PW 3 Shivlal and PW 6 Bapu caused by sharp edged weapon. The deceased and the witnesses were sleeping by covering themselves with a quilt. In the night, between 11.00 and 12.00 p.m. the appellants reached over there and started assaulting them by lathis and handle of farsi, the non-lethal weapons. They were having free hand to assault and commit murder and for that purpose they could have used a sharp-edged weapon farsi to meet their desire if they had pre-meeting of mind, pre-plan and pre-meditation for committing the murder. They were having free hand to assault and commit murder and for that purpose they could have used a sharp-edged weapon farsi to meet their desire if they had pre-meeting of mind, pre-plan and pre-meditation for committing the murder. Non-use of a deadly weapon like farsi and presence of only fatal injury on the head of deceased Baldeo who died after three days of the incident in the hospital and presence of simple injuries on the persons of PW 3 Shivlal and PW 6 Bapu, except fracture of clavicle bone of PW 3 Shivlal. 11. The medical evidence of PW 1 Dr. R.C. Sharma, PW 4 Dr. Anand Parmar and PW 10 Dr. R.S. Dangad is disclosing in total eight to ten injuries on the deceased as well as PW 3 Shivlal and Bapu (PW 6) caused as many as by four persons. PW 6 Bapu has deposed about participation of four persons in the alleged incident and the same is also the fact mentioned in. the First Information Report. Therefore, these injuries could be caused by four persons. The number of injuries are also disclosing that though the accused persons were free to cause as many injuries for achieving their goal and there was no intervening factor to prevent them, but, they did not cause such injuries. The deceased died because of head injury caused by lathi and there is no evidence on record to show as to who is the author of this injury. 12. Therefore, in view of these features of the prosecution case, it would be easy to discren that the appellants were having common intention to beat the deceased and injured persons and to cause grievous injuries to them and not to commit murder of deceased Baldeo. Otherwise, they would have used the sharp side of farsi and could have inflicted number of concentrated blows on the deceased and witnesses who were' sleeping after covering themselves by a quilt. 13. At this stage, we may profitably refer the decisions rendered by the Supreme Court in the case of Mohinder Singh and another v. State of Delhi ( AIR 1975 SC 1506 ) wherein, it has been observed that: "If the intention were to kill, the wrong side of the axe would not have been used. 13. At this stage, we may profitably refer the decisions rendered by the Supreme Court in the case of Mohinder Singh and another v. State of Delhi ( AIR 1975 SC 1506 ) wherein, it has been observed that: "If the intention were to kill, the wrong side of the axe would not have been used. While the knowledge that the injury he was causing would in the ordinary course of nature lead to the death of the deceased might be attributed to U, it was not possible to attribute such knowledge to M. It was not, therefore, possible to ascribe to M a common intention alongwith U to cause to deceased such injury as would lead in the ordinary course of nature to his death. The accused could not be convicted u/s 302." Thus, in the case on hand, the appellants could not have been convicted for the offence punishable under section 302 Indian Penal Code but could be convicted under section 325 read with section 34 of the Indian Penal Code. 14. In the case of Md. Isak Md. and others v. State of Maharashtra ( AIR 1979 SC 1434 ), it has been observed that: "The appellants are said to have assaulted the deceased with sticks. There is no evidence to show as to which of the appellant struck the fatal blow on the deceased. Having regard, therefore, to the circumstances of the present case and the nature of injuries sustained by the appellants, we are unable to agree with the High Court that the case falls under S. 302. There is no evidence of any intention on the part of the appellants either to cause death of the deceased or cause such injuries of which the appellants could have the knowledge that it was likely to cause death although it cannot be doubted that the appellants had the common intention to cause grievous hurt to tire deceased by lathis. Thus, the offence falls under S. 325/34." (See: Also Gajjansingh v. State of Punjab ( AIR 1976 SC 2069 ), Jaspal Singh and another v. State of Haryana ( AIR 1977 SC 1821 ) and Kishan Chand and another v. State of Punjab ( AIR 1994 SC 32 ). 15. Consequently, the conviction of the appellants for the offence under section 302 read with section 34 of the Indian Penal Code is not sustainable. 15. Consequently, the conviction of the appellants for the offence under section 302 read with section 34 of the Indian Penal Code is not sustainable. However, the prosecution has proved its case beyond reasonable doubt for the offence punishable under sections 325 and 323 both read with section 34 of the Indian Penal Code. 16. In the result, this appeal stands allowed in part. The conviction of the appellants for the offence under section 302/34 IPC is set aside. Instead the appellants are convicted under section 325/34 IPC for causing grievous injuries to Baldeo's witness PW 3 Shivlal and under section 323/34 IPC for causing simple injuries to PW 6 Bapu. As regards sentence, it is pointed out by the learned counsel for the appellants that during trial as well as after conviction, in total the appellants have undergone five months' and 15 days' jail sentence. The incident has taken place in the year 1992. There is no criminal antecedents of the appellants and they all are agriculturist, entered into a quarrel on a trivial issue. The appellant No. 1 is now aged 68 years and No. 2 and 3 are aged between 40 and 50 years. Therefore, instead of sending them to jail, we sentence them to the period already undergone in all counts and to pay a fine of. Rs. 7,000/- each. Out of the total amount of fine of Rs. 21,000/-, Rs. 15,000 shall be paid to the legal representatives of the deceased Baldeo, Rs. 3,000/- to injured PW 3 Shivlal and Rs. 700/- to injured witness PW 6 Bapu as compensation. The appellants are on bail, their bail bonds shall stand discharged. ........................