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2003 DIGILAW 69 (CHH)

PRAHLAD v. STATE OF M. P.

2003-04-26

K.H.N.KURANGA, L.C.BHADOO

body2003
JUDGMENT L. C. Bhadoo, J. 1. Accused Prahlad, Bhim, Shiv Kumar, Rameshroo and Krishna Kumar have preferred Criminal Appeal No. 2155 of 1999 and accused Mohan alias Jagmohan has preferred Criminal Appeal No. 3132 of 1999 being aggrieved by the judgment of conviction and sentence dated 31-7 -1999 passed by the learned Second Additional Sessions Judge, Baloda Bazar, Raipur by which the learned Additional Sessions Judge after holding the above accused persons guilty of the offences under Sections 147,302 read with Section 149 of the Indian Penal Code convicted each of them under the said offences and sentenced each of them to undergo rigorous imprisonment for one year and imprisonment for life and to pay a fine of Rs. 500/- in default of payment of fine to undergo further simple imprisonment for three months, respectively. 2. Since both the appeals are arising out of the same incident and the same judgment, they are being disposed of by this common judgment. 3. The relevant facts for the disposal of these appeals are that on 27-3-1992 Ramlal lodged a report in Palari Police Station, district Raipur with the allegation that he is residing in village Amsena and he is agriculturist. Today at 6.00 a.m. in the morning he was getting the work done at Bandhawa Pond by labourers under Jawahar Rojgar Yojana. Domardas, Pyari and others were with him. At about 7.00 a.m. Durpat Bai came to the pond and informed that his son Mohan and other members of his family are beating jagdish Kotwar in front of his house. On hearing this, he along with Domardas and others left for the scene of occurrence and saw that in front of the house of Durpat Bai, Jagdish was lying in the courtyard and Mohan alias Jagmohan, Milind, Bhim, Puranik, Krishna, Shiv, Dukalu, Prahl ad etc. were beating Jagdish by kick, fist, shoes and Chappals. On seeing this, he along with Domardas intervened and they took Jagdish on a cycle lying there to the hospital. During the treatment in the hospital Jagdish has died. On receiving this report, the Police registered a case under Sections 147 and 302 read with Section 149 of the Indian Penal Code and after investigation filed the chargesheet against ten accused persons. 4. During the treatment in the hospital Jagdish has died. On receiving this report, the Police registered a case under Sections 147 and 302 read with Section 149 of the Indian Penal Code and after investigation filed the chargesheet against ten accused persons. 4. After hearing the arguments of the counsel for the parties the learned Additional Sessions Judge framed the charges under Sections 147,302 and 302 read with Section 149 of the Indian Penal Code against accused Mohan, Prahlad, Puranik, Krishna kumar, Shankar, Rameshwar, Shivkumar, Bhim Milind Kumar and Mehtaru. The accused persons denied the charges and wanted trial. The accused Dukalu was below 16 years therefore being a juvenile offender; the prosecution was directed to take up his case with the Juvenile Court, Raipur. Accused Shankar died during the trial. Therefore, in all nine accused faced the trial. 5. The prosecution in order to prove the offence against the accused persons examined in all twenty witnesses at the trial. The statement of the accused persons were recorded under Section 313 of the Code of Criminal Procedure. They simply denied the statements of the prosecution witnesses and the allegation levelled against them and said that they have been falsely implicated in the case. In defence, they examined one witness namely Salikram. 6. After hearing the arguments of the learned counsel for the parties, the learned Additional Sessions Judge convicted and sentenced the accused/ appellants as mentioned above and passed the impugned judgment. 7. In this case all the eye witnesses have turned hostile, except PW-8 Devantin Bai who has said in her evidence that on the fateful day in the morning she was sleeping in the house. After hearing the scream she woke up and saw that accused persons Shiv, Krishna, Prahlad, Ramesar, Bhim, Dukalu, Shankar and Mohan were beating Jagdish by fists, shoes and Chappals. She tried to intervene and then Milind asked her why you have intervened and at that time accused Shiv slapped her on her cheek. Thereafter people col1ected there. She is the sister of accused Mohan and it is undisputed that she was residing in the same house where Jagdish was beaten by the accused persons. She tried to intervene and then Milind asked her why you have intervened and at that time accused Shiv slapped her on her cheek. Thereafter people col1ected there. She is the sister of accused Mohan and it is undisputed that she was residing in the same house where Jagdish was beaten by the accused persons. The learned Additional Sessions Judge based on the statement of this witness and recoveries of Chap pals and Shoes at the instance of the accused persons convicted the accused appellants as mentioned above; whereas acquitted accused Milind, Mehtaru and Puranik observing that Devantin Bai has not said in her statement that these persons were also involved in beating of Jagdish. 8. We have heard the learned counsel for the accused/appellants and the Dy. Govt. Advocate for the State/respondent. 9. As far as the question of homicidal death of deceased Jagdish is concerned, counsel for the accused persons had not disputed the homicidal nature of the death. Moreover, PW -18 Dr. G.R. Agrawal who conducted the post mortem of the dead body of the deceased has stated in his statement that the nature of the death was homicidal which has been mentioned in the post mortem report EX.P-22. As such, the death of deceased Jagdish was homicidal. 10. The main arguments of learned counsel appearing for the accused appellants are that as per the statement of PW -8 Devantin Bai the accused persons had beaten deceased Jagdish by fists, Chappals and Shoes. Therefore, the intention of the accused persons was not to murder Jagdish. As such the offence under Section 302 read with Section 149 of the Indian Penal Code is not made out and the learned trial Court has convicted the accused persons under section 302 read with section 149 of the Penal Code without any evidence. Learned counsel for the accused appellants has neither disputed the nature of the death of the deceased as homicidal nor challenged the conviction of the accused appellants. However, Learned counsel for the accused/appellants relying on the judgment of the Supreme Court in the case of V Sreedharan Vs. State of Kerala argued that three accused persons have already been acquitted and there is no evidence on record that which accused caused fatal blow by which the deceased died. However, Learned counsel for the accused/appellants relying on the judgment of the Supreme Court in the case of V Sreedharan Vs. State of Kerala argued that three accused persons have already been acquitted and there is no evidence on record that which accused caused fatal blow by which the deceased died. Moreover, further argued that as per the statement of PW -8 Devantin Bai the accused had beaten the deceased with fists, shoes and Chappals and PW-18 Dr. G.R. Agrawal who conducted the post mortem of the dead body of Jagdish has said that the injuries which were found on the body of the deceased could not be caused by Chappals. He has said that he conducted the post mortem of the body of the deceased and found that there were eleven injuries which were abrasions and contusions and on opening the body he found that the ribs of both sides were fractured and the spleen was also ruptured. Moreover, PW -18 Dr. Agrawal in his post mortem report (Ex. P122) has recorded that the nature of the death was homicidal 11. In order to appreciate the arguments of the learned counsel for the appellants we have gone through the statements of the witnesses namely Dewanti Bai (PW-8), Dr. G.R. Agrawal (PW-18) who conducted the post mortem of the dead body of the deceased Jagdish, as also the judgment of the learned trial Court. As per the statement of Devanti Bai the accused persons had beaten the deceased with fists, shoes and Chappals and by which the deceased as per the statement of the doctor received abrasions, contusions and his ribs were also fractured. The accused persons while beating the deceased used only shoes, Chappals and fists. It has not been established that which accused caused the fatal injury to the deceased. No deadly weapon was used by the accused persons, therefore, looking to the nature of the weapons used by the accused persons as also the nature of the injuries received by the deceased it cannot be attributed to the accused persons that the deceased was beaten by the accused persons with the intention to murder him or their intention was to cause an injury which was sufficient in the ordinary course of nature to cause the death. However, in the facts and circumstances of the case it can safely be inferred that the accused persons certainly had the knowledge that the injuries which they were causing to Jagdish are likely to cause the death of Jagdish. Therefore, the offence punishable under Section 302 read with Section 149 of the Indian Penal Code is not proved but the offence punishable under Section 304 Part-IT read with Section 149 of the Penal Code stands proved against the accused persons. 12. It is also proved that all the accused persons with common object and in furtherance of the common object assaulted the deceased. Therefore, the offences under Sections 147 and 304 Part-II read with Section 149 of the Indian Penal Code are proved and they are liable to be punished under these sections. 13. In the result, Criminal Appeal No. 2155 of 1999 and Criminal Appeal No. 3132 of 1999 of the accused/appellants namely Prahlad, Bhim, Shiv Kumar, Rameshroo, Krishna Kumar and Mohan alias Jagmohan are partly allowed. Their conviction and sentence under Section 302 read with Section 149 of the Indian Penal Code are set aside, but they are convicted under Section 304 Part-II read with Section 149 of the Indian Penal Code. Looking to the manner in which they assaulted the deceased, ends of justice would be met if each of the accused persons are sentenced to undergo rigorous imprisonment for five years for the offence under Section 304 Part-II of the Penal Code read with Section 149 of the Indian Penal Code. 14. In the result, the conviction and sentence of accused appellants namely under Section 147 of the Indian Penal Code are maintained. The accused/appellants are acquitted of the charge under Section 302 read with Section 149 of the Indian Penal Code. However, they are convicted for the offence punishable under Section 304 Part-II read with Section 149 of the Indian Penal Code and each of them is sentenced to undergo rigorous imprisonment for five years and to pay fine of Rs. 500/- in default of payment of fine to undergo simple imprisonment for three months. Appeal Partly Allowed.