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2005 DIGILAW 516 (MP)

Sardar Singh v. State of M. P.

2005-04-12

A.K.GOHIL, CHANDRESH BHUSHAN

body2005
JUDGMENT Gohil, J. 1. This appeal is directed against the judgment dated 21.8.1996 passed by II Additional Sessions Judge Guna in Sessions Trial No. 332/92 whereby he convicted appellant Sardar Singh under section 302,148,323/149 am 326/149 IPC and sentenced him to imprisonment for life and fine of Rs. 200/- six months RI, three months RI, and two years RI with fine of Rs. 200/- respectively and convicted other appellants under sections 302/149, 148, 323/149 and 326/149 and sentenced them to undergo imprisonment for life with fine of Rs. 200/- each, six months RI, three months RI and two years RI with fine of Rs. 200/- each respectively. 2. As per prosecution story PW Sampatbai is the mother of deceased Bhagirath. PW 2 Gendalal is the father of deceased and PW 3 Jaswant is the brother of deceased. Dhoolibai is the wife of PW 3 Jaswant Singh and she is sister of Rambai. Rambai is wife of appellant No. 1 Sardar Singh and it is alleged that she was residing with some other person at the instance of Gendalal. In village Avan on 8.9.1992 at about 9 p.m., procession carrying flag of Hanumanji was proceeding. As the procession came in front of the house of Sampatbai (PW 1) appellants came there and told Gendalal (PW 2) that he has eloped the wife of appellant Sardar Singh and demanded money from him. Gendalal retorted by saying that they should go where their wife is residing and take money from there Mutual tension arose between the parties and at this stage appellant Sardar Singh gave a Katar blow on the head of Bhagirath as a consequence of which he fell down. As per prosecution story Harbhajan gave a Farsa blow from the blunt side on the back of Bhagirath, Rodelal is said to have giver an axe blow from its blunt side on the back of Gendalal, Jagroop and Hajari are said to have given Lathi blows to Jaswant Singh (PW 3) and Dhurelal is said to have giver Lathi blow to PW 1 Sampatbai on her hand and Jagroop on her head and Champalal is also alleged to have beaten Bhagirath and thereafter they all had beaten Bhagirath and Gendalal. Ramcharan (PW 8) am Shankarlal (PW 9) intervened and they also sustained injuries. The incident was also witnessed by Ghasi, Shrikalyan Karansingh and Tofan. Ramcharan (PW 8) am Shankarlal (PW 9) intervened and they also sustained injuries. The incident was also witnessed by Ghasi, Shrikalyan Karansingh and Tofan. Sampatbai (PW 1) lodged FIR the next day at police station Raghogarh. Bhagirath (hereinafter referred to as deceased only) was medically examined and he died on the next day. All the injured persons were also examined by Dr. Shahid Hussain (PW 7). On that day he also examined Ramcharan (PW 8), Shankarlal (PW 9) and appel1ants Harbhajan and Hazarilal. After the report deceased was referred for medical examination along with the witnesses. After his death, post mortem was also performed. Matter was investigated and charge-sheet was filed. 3. During trial, prosecution examined as many as eleven witnesses. After considering the overall evidence, trial Court convicted the appellants and sentenced them as aforesaid against which appellants have filed this appeal. 4. Shri J.P. Gupta, learned senior Advocate appearing on behalf of appellants vehemently argued that the trial Court has erred in relying upon the prosecution evidence. It is a case of free fight between the parties. There was no formation of unlawful assembly and ever according to the prosecution the incident has taken place all of a sudden. There is no evidence about the common object of unlawful assembly to commit murder of deceased. The eye-witnesses named in the FIR like Shrikalyan, Ghasi, Tofan and Karan Singh have not been examined by the prosecution and the trial Court has erred in not drawing adverse inference against the prosecution for non-examination of these witnesses Prosecution witnesses are highly interested and inimical. Prosecution evidence is totally inconsistent with medical evidence. The case of causing injury to deceased by 'Katar' is medically belied as the deceased has not received any punctured wound. In this regard, he pointed out statement of the doctor. Then is no evidence to corroborate that there was human blood or blood on the weapon Prosecution has not explained the injuries received by the appellants Harbhajan and Hajarilal. Injuries received by Gendalal are also medically belied. In this regard, he pointed out statement of the doctor. Then is no evidence to corroborate that there was human blood or blood on the weapon Prosecution has not explained the injuries received by the appellants Harbhajan and Hajarilal. Injuries received by Gendalal are also medically belied. Anyway injuries received by Gendalal (PW 2) are said to have been caused by Rodelal who has expired during trial and rest of the witnesses have received simple injuries There is no evidence who caused injuries by which weapon to the injured witnesses There is no evidence that the injuries were sufficient in ordinary course of nature to cause the death of the deceased. There was no intention to kill the deceased and no such intention can also be assumed from the prosecution evidence on record Therefore, pointing out the en tin evidence, his submission is that it is not a case of murder but it is a case of culpable homicide not amounting to murder and a the most only appellant No.1 Sardar Singh can be convicted under section 304 Part IPC and there is no evidence on record that there was commission of crime by several persons in the furtherance of common intention or there was formation of unlawful assembly by the accused person to commit the crime with common object Therefore, rest of the appellants can only be convicted for their individual acts as the, injured persons have received simple, injuries. Therefore at the most they can be punished under section 323 IPC. He further submitted that appellant No.1 Sardar Singh has remained in jail for more than eight years and eight months and other appellants have also suffered jail sentence of around more than two months to more than six months, therefore all the appellants may be released on undergone jail sentence. His sole submission was that the case of the appellants falls under Exception 4 of section 300 IPC as the offence is committed without pre-mediation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taker advantage or acted in a cruel or unusual manner and prayed for the same. Shri Gupta also cited various decisions with regard to his submissions. 5. Shri V.G. Khot, learned public prosecutor submitted that it is not a case of free fight. Sufficient evidence is available on record. Shri Gupta also cited various decisions with regard to his submissions. 5. Shri V.G. Khot, learned public prosecutor submitted that it is not a case of free fight. Sufficient evidence is available on record. Weapon of offence was seized from the custody of Jaswant Singh (PW 3) as it was taken out by Jaswant (PW 3) from the forehead of the deceased. It was also produced before the Court and it was marked as Article A1. He argued that it is a direct case of murder, sufficient evidence is available on record and trial Court has rightly recorded the findings against the appellants. He also submitted that simple non-explanation of the injuries of the appellants is not fatal to the prosecution case as direct eye-witness account is available. He also submitted that it is a cast of formation of unlawful assembly with common object and all the appellants came at the house of the deceased with common intention to commit murder and supported the judgment of the trial Court. 6. After hearing rival contentions of the learned counsel for the parties at length we have perused the evidence on record. 7. PW 1 Sampatbai is the mother of the deceased, PW 2 Gendalal is the father of the deceased and PW 3 Jaswant is the brother of deceased. They are also the injured eye-witnesses of the incident. All of them have categorically stated that procession of flag of Hanumanji was proceeding in the village and when it was passing from front of the house of deceased, appellants came at their house and retorted about Rambai, wife of appellant Sardar Singh. Thereafter there was hot exchange of abuses between the parties and Sardar gave a 'Katar" blow on the head of the deceased and thereafter there was free fight between the parties. As per evidence of all the injured witnesses Harbhajan gave a Farsa blows on the bad of the deceased, Jagroop also gave a blow and thereafter all had beaten him. As per PW 1, Dhurelal gave Lathi blow in the right hand of Sampatbai. Jagroop also gave Lathi blow on the head of Sampatbai. They have stated that all had beaten Gendala who received two lacerated wounds and, fracture, and the fractured injury was caused by Rodelal who died during the course of trial. As per PW 1, Dhurelal gave Lathi blow in the right hand of Sampatbai. Jagroop also gave Lathi blow on the head of Sampatbai. They have stated that all had beaten Gendala who received two lacerated wounds and, fracture, and the fractured injury was caused by Rodelal who died during the course of trial. Rudiya also assaulted Jaswant by axe and all have assaulted Jaswant on his back and buttocks. Hajar has also assaulted in the back. There are material contradictions in the evidence of PW 1. All the three witnesses have admitted that free fight took place between the parties on the question of elopement of Rambai. All the three witnesses have stated that the quarrel took place between the parties and both sides have received injuries. Appellants Hajari and Harbhajar have also received injuries. Though witnesses have denied the presence of Shankarlal and Ramcharan on spot, but it is true that both have received injuries in the same incident when they came on spot to pacify the fight between the two groups They were cited as witnesses by the prosecution but they have not supported the prosecution, on the contrary, they have stated that they received injuries caused by the complainant party. 8. From the aforesaid evidence of all the three eye-witnesses it is clear that it is a case of free fight and both the parties have received injuries therein. Therefore when this is a case of free fight, the provision of section 34 IPC about common intention and provisions of section 149 IPC about common object of unlawful assembly and formation of unlawful assembly shall no be applicable and the appellants shall only be responsible for their individual act only. 9. PW 7 Dr. Shahid Hussain has stated that the deceased received only one incised wound 2" x 2" x 2" on the skull on the parietal region which caused compound fracture in the skull. This injury was caused by some sharp edged weapon. The deceased also received two contusions or right arm and left arm. Injuries received by all the injured witnesses were simple in nature. Only PW 2 received two lacerated wounds and one fracture which was a grievous hurt which as per evidence was caused by Rudelal who has already expired during trial. PW 11 Dr. Anil Vijayvargiya has performed the postmortem and found one stretched wound or the right side of scalp. Injuries received by all the injured witnesses were simple in nature. Only PW 2 received two lacerated wounds and one fracture which was a grievous hurt which as per evidence was caused by Rudelal who has already expired during trial. PW 11 Dr. Anil Vijayvargiya has performed the postmortem and found one stretched wound or the right side of scalp. It was 15 cms long wound. On internal examination he found that right frontal parietal and temporal bones were fractured and the injuries received were sufficient in the ordinary course of nature to cause death. 10. Now the question is that if the incident took place without premeditation and there was sudden fight under heat of passion upon a sudden quarrel and the deceased received only one injury on his head caused by appellant Sardar Singh whether the injury caused by appellant No 1 Sardar Singh will fall under culpable homicide not amounting to murder under section 304 Part 1, IPC. 11. After considering the evidence or record, it is clear that it is a case of free fight as appellants Hajari and Harbhajanla also received injuries. The incident took place all of sudden without premeditation when the procession of flag of Hanumanji came in front of Sampatbai. Cause of incident is elopement of Rambai, wife of appellant Sardar Singh with some other person. Sudden quarrel took place after exchange of hot words between the parties Thus, considering the totality of the evidence and the circumstances in which the crime was committed, it can be safely held that it is not a case of murder but it is a case of culpable homicide not amounting to murder. Therefore, convictions of appellant Sardar Singh under sections 302, 148, 323/149 and 326/149 IPC are bad in law and are set aside. Appellant Sardar Singh has not caused any injury to other persons except deceased. Therefore, he is convicted only under section 304 Part I IPC. Since it is not a case of formation of unlawful assembly and common intention therefore the convictions of other appellants under sections 302/149, 148, 323/149 and 326/149 IPC also cannot be maintained and are set aside. Instead they are convicted only for their individual act for causing simple injury to the witnesses under section 323 IPC. Since it is not a case of formation of unlawful assembly and common intention therefore the convictions of other appellants under sections 302/149, 148, 323/149 and 326/149 IPC also cannot be maintained and are set aside. Instead they are convicted only for their individual act for causing simple injury to the witnesses under section 323 IPC. Appellant Sardar Singh has already suffered jail sentence of more than eight years and eight month and he is still in jail and rest of the appellants are on bail. They have suffered jail sentence between two to six month and they have also deposited the amount of fine. Jail sentence suffered by the appellants appears to be sufficient. Accordingly, the appellants are convicted as aforesaid and sentenced to the jail sentence already undergone by them. 12. Consequently, this appeal is partly allowed to the extent indicated above Appellant No.1 Sardar Singh is in jail. He be released forthwith if not required in any other case. Appellants No.2 to 6 are on bail. Their bail bonds and sureties stand discharged.