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2004 DIGILAW 85 (CHH)

RAMHU v. STATE OF MADHYA PRADESH

2004-04-26

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

body2004
L. C. BHADOO, J. ( 1 ) ACCUSED/appellants Ramhu, Ramhau, Ramadhar, Narayan and Sukhchain, have preferred this criminal appeal under Section 374 (2) of the Code of Criminal Procedure Code, 1973 being aggrieved by the judgment of conviction and sentence dated 30/1/1998, passed by the learned Additional Sessions Judge, Khairagarh, district Rajnandgaon in Sessions Trial No. 95 of 1998 whereby the learned Additional Sessions Judge after holding the accused/appellants guilty of the offences punishable under Sections 302, 201, 323 and 506 of the Indian Penal Code convicted and sentenced each of them to undergo imprisonment for life and to pay a fine of Rs. 1,000/- in default of payment of fine to further undergo rigorous imprisonment for six months, to undergo rigorous imprisonment for seven years and to pay a fine of Rs. 500/- in default of payment of fine to further undergo rigorous imprisonment for three months, to undergo rigorous imprisonment for six months and to undergo rigorous imprisonment of one year, respectively. The sentences were ordered to run con-currently. ( 2 ) FACTUAL scenario giving rise to the present appeal is as follows: The villagers of village Bandhanwangaon set up idol of Durga and they were celebtrating Durga festival and were also singing the songs. On third day of the setting up of Durga idol when the villagers were singings songs, there was an impression that the God had appeared in some per-sons and they were saying that for this act Ramadhin and Sukhchain are res-ponsible. As such Ramadhin and Sukh-chain were called at the place and in the night villagers assaulted them. In the morning of 7-10-1997 at about 10. 00 Ramadhin was called by the accused persons at the house of Sukhchain. Accused/appellants 1 to 4 are brothers of Ramadhin and accused/appellant No. 5 is the father of Ramadhin. The accused/appellants started beating Ramadhin saying that on account of his witchcraft activities the villagers have unnecessarily blamed them and he was responsible for the whole episode. Thereafter Gendkunwar (since deceased), wife of Ramadhin, was also called there and was also beaten with the cane of tamarind tree. As a result of beating Gendkunwar received injuries on her chest, stomach, head and legs and little finger of her left hand was also broken. She succumbed to the injuries on 10-10-1997 at about 5. Thereafter Gendkunwar (since deceased), wife of Ramadhin, was also called there and was also beaten with the cane of tamarind tree. As a result of beating Gendkunwar received injuries on her chest, stomach, head and legs and little finger of her left hand was also broken. She succumbed to the injuries on 10-10-1997 at about 5. 00 P. M. Further case of the prosecution is that all the accused persons threatened Ramadhin not to report the matter to the Police. Ramadhin was not in a position even to move on account of the injuries sustai-ned by him. On the same day dead body of Gendkunwar was cremated and last rites were also performed. However, on 4-11-1997 Ramadhin, husband of the deceased, reported the matter to the Police upon which the Police registered Crime No. 17 of 1997 (Ex. P/i ). ( 3 ) THE Police after completing the investigation filed the charge-sheet against the accused/appellants in the Court of Additional Chief Judicial Magistrate, Khairagarh who in turn committed the case to the Sessions Court Rajnanda-gaon from where the learned Additional Sessions Judge, Khairagarh received the case on transfer. ( 4 ) THE learned Additional Sessions Judge after hearing the arguments on charge and perusing the records was of the opinion that there was sufficient material to frame charges under Sections 302, 201, 323 and 506-B of the Indian Penal Code against the accused/appellants. Accordingly he framed the charges against the accused/appellants for the commission of the aforesaid offences. The charges were read over and explained to the accused/appellants. The accused/appellants denied the charges and claimed to be tried. ( 5 ) THE prosecution in order to prove the charges against the accused/appellants examined in all eight witnesses at the trial. The statements of the accused/appellants were recorded under Section 313 of the Code of Criminal Procedure in which they denied the evidence of the prosecution and stated that there was a dispute with Ramadhin and hence they have been falsely implicated in the crime and they are innocent. ( 6 ) AFTER hearing the arguments of the learned Additional Public Prosecutor and the learned counsel appearing for the accused/appellants and after relying on the evidence of the prosecution, the lear-ned Additional Sessions Judge held the accused/appellants guilty of the offences and convicted and sentenced them as mentioned above. ( 7 ) WE have heard Miss. ( 6 ) AFTER hearing the arguments of the learned Additional Public Prosecutor and the learned counsel appearing for the accused/appellants and after relying on the evidence of the prosecution, the lear-ned Additional Sessions Judge held the accused/appellants guilty of the offences and convicted and sentenced them as mentioned above. ( 7 ) WE have heard Miss. J. A. Khan, counsel for the accused/appellants and Shri J. D. Bajpai, Govt. Advocate for the State/respondent. ( 8 ) LEARNED counsel appearing for the accused/appellants argued that Gendkunwar died of malaria as she was suffering from that disease. She further argued that the prosecution has failed to prove that the accused/appellants are the persons who committed the murder of Gendkunwar, as no spot mortem report has been produced by the prosecution. As per the case of the prosecution the date of incident was 7-10-1997 whereas the matter was reported to the Police on 4-11-1997, therefore, learned counsel submitted that this fact itself shows that a false case has been foisted against the accused/appellants for the reason that there was some dispute between the accused persons and Ramadhin regarding the partition of the property. On the other hand, learned Government Advocate appearing for the State/res-pondent supported the judgment of the trial Court. ( 9 ) IN this case, PW-1 complainant Ramadhin, brother of accused/appellants 1 to 4 and son of accused/appellants No. 5, is the eye witnesses to the incident. He has categorically stated that on 5-10-1997 the idol of Durga was set up in the village and the villagers were celebrating Durga Festival and also singing the songs. At that time the God appeared in some persons and they were doubting that he and his father were responsible for this, therefore, they were called at to place and were beaten by the villagers. Thereafter on 7-10-1997 when he along with his wife and daughter Jagotri were at home at about 9. 00 a. m. his father came and took him to his house where accused/appellants 1 to 4 were already present having cane of tamarind tree and bamboo club in their hands. All of them started assaulting him saying that he was practising witchcraft and on account of him only they were unnecessarily blamed and harassed by the villagers. Accused/appellant No. 5 asked accused/appellants 1 to 4 to beat the complainant to the extent of death. All of them started assaulting him saying that he was practising witchcraft and on account of him only they were unnecessarily blamed and harassed by the villagers. Accused/appellant No. 5 asked accused/appellants 1 to 4 to beat the complainant to the extent of death. Thereafter accused Ramhau, Ramadhar and Narayan went to his house and brought his wife Gend-kunwar. At that time he was lying in injured condition. Thereafter accused/appellants 1 to 4 assaulted his wife Gendkunwar with the bamboo clubs and the cane of tamarind tree. Due to the beating the little finger of the left hand of Gendkunwar was broken. She received injuries on the knee, head and lacerated wound on the occipital region of her head. She also received injuries on various parts of the body. When his son Jairam came from the field the accused/appellants locked him in the room but somehow he ran away being frightened. Gendkunwar succumbed to the injuries on 10-10- 1997. After 20-22 days of the incident he went to Gatapar Police Station and reported the matter. In the cross examination this witness has categorically stated that the accused persons threatened him not to report the matter to the Police and the dead body of his wife was cremated on the same day and he even could not go to the burial ground as he was not in a position to move due to the injuries. Even the villa-gers were not in favour of reporting the matter to the Police. As such, he could not report the matter and after 20-22 days of the incident he reported the matter to the Police. In para 24 of the cross examination he has further stated that accused/appellant No. 5 Sukhchain had not assaulted him or his wife. PW-2 Ramsiya Bai, daughter of the deceased, has corroborated the evidence of PW-1 Ramadhin and stated that on the date of the incident she was at her house and his grand father i. e. accused/appellant No. 5 took his father PW-1 Ramadhin to his house and there he was beaten. Thereafter her mother Gendkunwar was also called and she was also beaten by the accused/appellants. Thereafter her mother Gendkunwar was also called and she was also beaten by the accused/appellants. When her father and mother namely PW-1 Ramadhin and Gendkunwar returned from the house of accused/appellant No. 5 she saw that the little finger of the left hand of her mother was in a broken condition and there were injuries on the knee of her right leg, head and other parts of her body. Her father was also lying in injured condition. PW-3 Son Singh is the witness of Panchanama (Ex. P/2) of collecting the bones and the soil from the place where the dead body of the deceased was burnt. Therefore, in view of the above evidence, it is amply proved that the accused/appellants 1 to 4 assaulted Gendkunwar and PW-1 Ramdhin with bamboo clubs and the cane of tamarind tree as a result of which both Ramadhin and Gendkunwar received several injuries and on 10-10-1997 Gendkunwar succumbed to the injuries. ( 10 ) NOW coming to the question that no post mortem was conducted on the dead body of deceased Gendkunwar, as has been mentioned in the previous part of this judgment, the accused/appellants threatened PW-1 Ramadhin not to report the matter to the Police as he was not in a position to move and the dead body of the deceased was burnt on the same day by the villagers and the accused persons saying that Gendkunwar died of malaria. Therefore, in these circumstances, there was no occasion for Ramadhin to report the matter to the Police. He was not allowed to report the matter and he was threatened by the accused persons not to report the matter to the Police other-wise he would also meet the same fate as that of Gendkunwar. Therefore, in the circumstances if the postmortem was not conducted on the dead body of Gendkunwar and the matter was reported to the Police after 20-22 days of the incident, this does, not affect the case of the prosecution. ( 11 ) THE defence of the accused persons was that there was dispute between them and PW-1 Ramadhin regarding the partition of some properties and that is why they have been falsely implicated in the crime. But the accused persons have not been able to establish this defence by adducing reliable and cogent evidence. The complainant and the accused persons are the members of one family. But the accused persons have not been able to establish this defence by adducing reliable and cogent evidence. The complainant and the accused persons are the members of one family. Accused 1 to 4 are real brothers of the complainant and accused No. 5 is their father. Therefore, there was no reason for the complainant to falsely implicate his own blood relations. Moreover, PW-2 has also corroborated the evidence of PW-1. The death of Gend-kunwar is not in dispute, but it has been tried to be established that Gendkunwar died of Malaria. There is no evidence on record to show that Gendkunwar was suffering from malaria and due to that disease she died. It has come in the cross examination that one doctor namely Dr. Shrivastava came to the village and he took samples of blood in order to find out that Gendkunwar was suffering from malaria. Moreover, the evidence of PW-1 Ramadhin stands corroborated by the evidence of PW-5 Dr. R. Mandle who has stated that on 8-11-1997 he examined PW-1 Ramadhin and found the marks of old injuries on his body. This evidence shows that Ramadhin was assaulted by the accused persons on the date of the incident. Therefore, as per the above evidence the involvement of the accused/appellants 1 to 4 in assaulting PW-1 Ramadhin and deceased Gendkunwar stands estab-lished. To this extent, we are of the opinion that the finding of the learned trial Court is based on legal, reliable, convincing and trust worthy evidence. PW-1 Ramadhin has admitted in para 24 of his cross examination that appellant No. 5 had not assaulted him or his wife Gendkunwar. Therefore, to this extent we are of the opinion that the finding of the learned trial Court in convicting accused/appellant No. 5 for the commission of the offences under Sections 302, 323 and 506-B of the Indian Penal Code is not based on proper appreciation of the evidence on record. ( 12 ) NOW coming to the question whether the prosecution has been able to prove that the accused/appellants assaulted the deceased with the inten-tion to commit her murder and injuries inflicted by the accused/appellants were sufficient in the ordinary course of nature to cause her death. ( 12 ) NOW coming to the question whether the prosecution has been able to prove that the accused/appellants assaulted the deceased with the inten-tion to commit her murder and injuries inflicted by the accused/appellants were sufficient in the ordinary course of nature to cause her death. As per the prosecution case the villagers were doubting that Ramadhin and his father i. e. accused/appellant No. 5 were practising witchcraft and they were beaten by the villagers and on account of that the accused/appellants were terrified and they were of the opinion that Ramadhin was practising witchcraft and on account of his activities they were being unnecessarily harassed and beaten by the villagers. Therefore, in order to teach lesson to him and his wife accused/appellants 1 to 4 who are real brothers of the complainant, brought him and his wife to their house and there they beat them with the bamboo club and the cane of tamarind tree. PW-1 Ramadhin survived the injuries, but Gendkunwar succumbed to the injuries after three days of assault and it has come on record that she was not taken to any hospital and she was suffering from malaria. As per the evidence of PW-1 and PW-2, after beating Ramadhin and Gendkunwar the accused persons went to their house. It has not come on record that Gendkunwar received any fatal injury, which was sufficient in the ordinary course of nature to cause her death even though she survived for more than three days. It seems that she died in the absence of proper treatment. The intention of the accused persons was just to teach a lesson to Ramadhin and his wife Gendkunwar so that they should not be harassed by the villagers on account of the activities of PW-1 Ramadhin and Gendkunwar. In view of the above evidence, it cannot be inferred that the accused/appellants assaulted Gend-kunwar with the intention to cause her death or to cause such bodily injury which was sufficient in the ordinary course of nature to cause her death. However, as per the evidence of PW-1 and PW-2 it can safely be inferred that at the time of beating the accused 1 to 4 had the knowledge that Gendkunwar was suffering from malaria and by beating they might cause her death. However, as per the evidence of PW-1 and PW-2 it can safely be inferred that at the time of beating the accused 1 to 4 had the knowledge that Gendkunwar was suffering from malaria and by beating they might cause her death. Therefore, the offence committed by the accused/appellants would fall under Section 304, Part-Il and not under Section 302 of the Indian Penal Code. ( 13 ) AS far as the offence under Section 323 of the Indian Penal Code is concerned, it is proved by the evidence of PW-1 Ramadhin that accused/appellants 1 to 4 gave beating to him with the cane of tamarind tree and bamboo club. PW-5 Dr. Mandle has also stated that he noticed the injuries on the body of Ramadhin. Therefore, the offence under Section 323 of the Indian Penal Code stands proved against accused/appellants 1 to 4. ( 14 ) AS far as the offence under Section 506 of the Indian Penal Code is concerned, PW-1 Ramadhin has stated that the accused/appellants threatened him not to report the matter to the Police and if he would report the matter to the Police, they would kill him. Therefore, the offence under Section 506-B of the Indian Penal Code stands proved against the accused/appellants. As far as the offence under Section 201 of the Penal Code is concerned, PW-1 Ramadhin has stated that he was threatened by the accused persons not to report the matter to the Police and further that the accused persons after the death of Gendkunwar burnt her body and the matter was not reported to the Police. Thus, they caused disappearance of the evidence in order to screne themselves from the punish-ment for causing the death of the decea-sed. Therefore, all the accused persons have rightly been convicted for the offence under Section 201 of the Indian Penal Code. ( 15 ) IN the result, the appeal pre-ferred by the accused/appellants partly succeeds. Accused/appellant No. 5 Sukhchain is acquitted of the offences under Sections 302 and 323 of the Penal Code. Accused Appellants 1 to 4 namely Ramhu, Ramhau, Ramadhar and Nara-yan are acquitted of the offence puni-shable under Section 302 of the Penal Code and instead they are convicted under Section 304, Part-li of the Penal Code and they are sentenced to undergo rigorous imprisonment for seven years. Accused Appellants 1 to 4 namely Ramhu, Ramhau, Ramadhar and Nara-yan are acquitted of the offence puni-shable under Section 302 of the Penal Code and instead they are convicted under Section 304, Part-li of the Penal Code and they are sentenced to undergo rigorous imprisonment for seven years. The convictions and sentences under Sections 201 and 506-B of the Indian Penal Code imposed on accused/appellant No. 5 and the convictions and sentences under Sections 323, 201 and 506-B imposed on the accused/appellants 1 to 4 are maintained. ( 16 ) THE attention of the Judges of the subordinate courts is again invited to the provisions of Section 428 of the Code of Criminal Procedure which provides the period of detention can be given set off against the term of imprisonment imposed on the accused, but such term of detention cannot be given set off against the imprisonment which the accused has to undergo in default of payment of fine. The law requires that the benefit of provisions of Section 428 of the Code should be given to the person convicted of any offence. In order to claim benefit of set off under Section 428 two essential conditions are required to be fulfilled. (i) The accused has on conviction being sentenced to imprisonment for a term, and (ii) the accused has suffered detention during the investigation, inquiry or trial before the date of conviction. Once the above-referred cond-tions are fulfilled then an accused is entitled to claim the statutory benefit. On account of non availability of this info-mation the Court is not able to know as to how much period the convict/accused has already undergone in the Police or judicial custody, at the time of passing the order of bail or suspension of sentence or at the time of deciding the appeal. On account of non availability of this info-mation the Court is not able to know as to how much period the convict/accused has already undergone in the Police or judicial custody, at the time of passing the order of bail or suspension of sentence or at the time of deciding the appeal. In this regard a Circular No. 7442 dated 22-5-1975 was issued by the High Court of Madhya Pradesh, Jabalpur and it was enjoined upon all the Presiding Officers of the Subordinate Courts to keep the record of the period spent by the convict in detention who are being tried by them and it was required that the Presiding Officers will issue a certificate in the following them: (A) Date of arrest of convicted accused (B) Detention in police custody from to (C) Detention in judicial custody from to (D) Whether he was released on bail and if so the duration of his being on bail. (E) Total period spent in detention which will be set off against the term of imprisonment imposed on him. This Circular was again reiterated by the Madhya Pradesh High Court vide Circular dated 10-10- 1986. It was also brought to the notice of this Court and Honble Shri Justice R. S. Garg also observed in one of the judgments in Darwan v. State of Chhattisgarh, that it is not expected of a Judge subordinate to the High Court that he would ignore the mandatory provisions contained in Section 428 Cr. P. C. , and the judicial directions issued by the high Court. We fail to understand as to why the Presiding Officers of the subordinate Courts are not complying with the provisions of Section 428 of the Cr. P. C. We hereby again direct all the Presiding Officer of the subordinate Courts that they should append a certificate in the abovementioned form at the end of the judgment. Any Judge who does not take into consideration the provisions of Section 428 Cr. P. C. is infact committing an illegality and is shirking his responsi-bility and trying to put the blame on some clerical or ministerial staff. Such an act on the part of the trial Judge cannot be excused. Any Judge who does not take into consideration the provisions of Section 428 Cr. P. C. is infact committing an illegality and is shirking his responsi-bility and trying to put the blame on some clerical or ministerial staff. Such an act on the part of the trial Judge cannot be excused. It is the duty of every Judge who convicts an accused and awards jail sentence to the accused to record in his judgment the period for which the accused was in detention before the date of his conviction and prepare the certificate in the above form. The Registrar General of this Court to issue a Circular to the sub-ordinate Courts in this regard immediately. Appeal allowed partly. --- *** --- .