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Madhya Pradesh High Court · body

2006 DIGILAW 533 (MP)

AMAR SINGH v. STATE OF M P

2006-04-13

S.L.KOCHAR, SHUBHADA R.WAGHMARE

body2006
Judgment ( 1. ) APPELLANTS filed this appeal against the judgment and findings dated 31-3-1997 passed by learned Additional Sessions Judge, Garoth District mandsaur in Sessions Trial No. 32/1992, whereby convicting the appellants for offences punishable under Sections 302/149, 147, 323/149, sentencing them each to undergo imprisonment for life and fine of Rs. 500/- in default to suffer additional RI for one year RI for three months and RI for three months, respectively. ( 2. ) THE prosecution case in nutshell as unfolded before the Trial Court is that on 12-12-1991 in the night at about 10. 00 to 10. 30 PM Laxmansingh, Kalu banjara and Devisingh were sitting in front of Hanumanji temple. Pratapsingh, father of Laxmansingh was sitting on the platform in front of the house. At that juncture, all the appellants reached near Pratapsingh. They abused him. Thereafter, appellant Amarsingh assaulted Pratapsingh by lathi. To rescue pratapsingh, Fatehsingh and Laxmansingh reached over there, but they too were assaulted by the appellants. Laxmansingh ran way from the scene of incident and directly reached to Police Station Bhanpura. Laxmansingh lodged report Exhibit-P-4 which was reduced by the police into writing in daily diary. Karansingh was found unconscious on the place of incident. All the injured persons were brought to Bhanpura Police Station from where they were sent to Hospital. Because of serious condition of Karansingh, due to injuries, he was taken to the District Hospital Mandsaur. Where in the Hospital on 14-12-1991 in the evening at 07. 35 PM he died. Intimation to this effect was sent by Doctor on duty to Police Station Mandsaur, where merg was registered and dead body was sent for postmortem examination. Postmortem was performed by dr. Parikh (PW-14 ). Postmortem report is Exhibit P-24. Witnesses PW-1, laxmansingh, PW-10, Pratapsingh, PW-5, Fatehsingh and PW-6, Gopalsingh were also sent for medical examination. They all were examined by PW-3 Dr. Narendra Kumar Goyal. Their MLC reports are Exhibits P-6, P-7, P-8 and P-9, respectively. At the initial stage, deceased Karansingh was also medically examined by PW-3 Dr. Goyal. MLC report is Exhibit-P-5. On the basis of rojnamcha Report Exhibit-P-4 and after receiving information from Hospital, the police has registered FIR Exhibit- P-22 on 13-12-1991. After due investigation, charge sheet was filed against the appellants for the offences punishable under Sections 147,302/149 and 323/149 of the IPC. ( 3. ) APPELLANTS have refuted the charges. Goyal. MLC report is Exhibit-P-5. On the basis of rojnamcha Report Exhibit-P-4 and after receiving information from Hospital, the police has registered FIR Exhibit- P-22 on 13-12-1991. After due investigation, charge sheet was filed against the appellants for the offences punishable under Sections 147,302/149 and 323/149 of the IPC. ( 3. ) APPELLANTS have refuted the charges. Their defence is that they have not assaulted deceased Karansingh and injured witnesses Fatehsingh, laxmansingh, Pratapsingh and Gopalsingh. According to them, complainant party was the aggressor and complainant party received injuries at the hands of the members of their own party. They have further contended that there was no motive and they have been falsely implicated on account of land and money disputes. Appellants have also submitted that they sustained injuries on their persons and also lodged the report in the Police Station, but no action was taken on their reports. In the alternative, their defence is that, there was no unlawful assembly and incident occurred in a dark-night, therefore, it was not possible to assign specific individual role or the appellants and in tact there was a tree tight in which both the parties had received injuries. Appellants did not examined any witness in defence. They got proved the report lodged by Umedhsingh written in rojnamcha dated 15-12-1991 in the same police station and medical report of injured appellants vide Exhibits-D-2 to D-6. Amarsingh, Parvathsingh, kushalsingh, Premsingh and Umedsingh sustained injuries in the same incident. Learned Trial Court has examined the prosecution witnesses and after hearing both the parties convicted the appellants, as mentioned herein above. ( 4. ) WE have heard learned Counsel for the parties and also perused the entire record, carefully. ( 5. ) LEARNED Counsel for the appellants submitted that the Trial Court, in the impugned judgment, has no where given finding about common object of the unlawful assembly. Learned Counsel has placed reliance on Supreme courts judgment passed in case of Bhudeo Mandal and others Vs. State of Bihar (1981) 2 SCC 755 . We have examined this issue and find substance in the submission of the learned Counsel for the appellant. ( 6. ) UNLAWFUL Assembly is defined under Section 141 of the IPC and the same is reproduced as under:-Section 141. State of Bihar (1981) 2 SCC 755 . We have examined this issue and find substance in the submission of the learned Counsel for the appellant. ( 6. ) UNLAWFUL Assembly is defined under Section 141 of the IPC and the same is reproduced as under:-Section 141. An assembly of five or more persons is designated an "unlawful assembly", if the common object of the persons composing that assembly is :-First - To overawe by criminal force, or show of criminal force, the Central or any State Government or Parliament or the legislature of any State, or any public servant in the exercise of the lawful power of such public servant; or second-To resist the execution of any law, or of any legal process; or third - To commit any mischief or criminal trespass, or other offence; or fourth - By means of criminal force, or show of criminal force to any person to take or obtain possession of any property, or to deprive, any person of the enjoyment of a right of way or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or fifth - By means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound or to do, or to omit to do what he is legally entitled to do. Explanation :- An assembly, which was not unlawful when it assembled, may subsequently become an unlawful assembly. " ( 7. ) CONSEQUENT of act of commission of of fence by unlawful assembly is prescribed under Section 149 of the IPC which is also for reference is reproduced herein below:-Section 149. If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly, knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. ( 8. ) ON going through the statements of all the eye witnesses PW-1, laxman Singh, PW-5, Fatehsingh, PW-6, Gopalsingh, PW-8, Kalu Banjara and pw-10, Pratapsingh the houses of all the appellants and the complainants were situated in the same vicinity. ( 8. ) ON going through the statements of all the eye witnesses PW-1, laxman Singh, PW-5, Fatehsingh, PW-6, Gopalsingh, PW-8, Kalu Banjara and pw-10, Pratapsingh the houses of all the appellants and the complainants were situated in the same vicinity. Their courtyard (Gwadi) was common. Both the parties come from one family. They are cousins and real brothers. According to the ocular account, all the appellants came out from their houses with lathis and started beating. Deceased Karansingh sustained two injuries, one on the head and another swelling on left forearm near the wrist. In view of the statement of eye- witnesses they all came together and they were more than five persons. Their presence could be said as unlawful assembly, but what was the common object of the said assembly was a crucial point to be determined by the Trial court. The Trial Court has not given any findings in this regard. Section 149 clearly lays down that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. ( 9. ) FOR conviction of the appellants under Section 302/149 of the IPC, the prosecution is objectively required to prove beyond all reasonable doubts that there was unlawful assembly, whose common object was to commit murder of deceased Karansingh or all the members of the assembly were knowing that there was likelihood of commission of murder of Karansingh. In prosecution of common object of the assembly, learned Trial Court has no where given this specific findings. Supreme Court held in case of Bhudeo Mandal (supra) is as under:- "section 149 creates a specific offence and deals with the punishment of that offence. Whenever the High Court convicts any person or persons of an offence with the aid of Section 149 a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but also that the object was unlawful. Before recording a conviction under Section 149, IPC the essential ingredient of Section 141 IPC must be established. Before recording a conviction under Section 149, IPC the essential ingredient of Section 141 IPC must be established. " ( 10. ) LEARNED Trial Court has given findings that appellants constituted unlawful assembly, but, failed to give findings regarding common object of unlawful assembly i. e. commission of murder of Karansingh or members of assembly were knowing well that there was likelihood of commission of murder of Karansingh by members of unlawful assembly or any one member of the same. ( 11. ) SUPREME Court recently in the judgment of Sunil Kumar and another Vs. State of Rajasthan, reported in (2005) 9 SCC 283 has also dealt with the same issue and pointed out difference between common object and common intention. ( 12. ) ON perusal of statement of star witness PW-1 Laxmansingh, who deposed in para-7 that dispute regarding irrigation of field of both the parties by one well was already resolved by his uncle named Sajansingh resident of Dewas. Appellants and complainant party entered into compromise and there was execution of registered compromise deed in favour of his father and uncle. In view of that compromise, there was no dispute regarding use of water of well. The expenditure incurred for registration of compromise deed was of Rs. 2300/ -. According to this witness, his father was not liable for paying any expenditure of registry. On the date of incident appellant Umedhsingh was demanding Rs. 600/-towards expenses of registry from his father. In Paragraph-8 he has admitted that he himself, his father, uncle and their sons i. e. the appellants and the complainant party were residing in a common courtyard (Gwadi) having only one main entrance and exit door. In paragraph-10 he described the incident saying that Umedhsingh abused Pratapsingh and also pulled his hand. At that moment, Fatehsingh caught Umedhsingh and tried to take him away. According to this witness the incident occurred while making demand of Rs. 600/- (registry expenses) and during the course of that, appellant Umedhsingh used force against Pratapsingh. He denied the defence suggestion that Fatehsingh dealt lathi blow on head of Umedhsingh. At that juncture, there was scuffle as a result of which Umedhsingh fell on ground. In paragraph- II he further stated that deceased Karansingh and witness Fatehsingh raised lathi in their defence. He denied the defence suggestion that Fatehsingh dealt lathi blow on head of Umedhsingh. At that juncture, there was scuffle as a result of which Umedhsingh fell on ground. In paragraph- II he further stated that deceased Karansingh and witness Fatehsingh raised lathi in their defence. At that time he saw Umedhsingh lying on the ground, but he could not see as to who caused injury to appellant Umedhsingh. It is also the say of this witness that when Fatehsingh caught hold the hand of Umedhsingh and pulled the same, at that time Umedhsingh fell down on the ground. All this incident occurred prior to commencement of Marpeet. In cross examination of this witness, no where he has stated that at any point of time all the appellants came together with lathi in their possession and thereafter, started beating to complainant/party. ( 13. ) ON regarding of statements of all the eye witnesses, the overall conclusion would be that there was verbal talk regarding demand of Rs. 600/-towards registry expenses by appellant Umedhsingh from the witness pratapsingh and thereafter verbal quarrel culminated into beating by lathi and since the houses of both the parties were situated in boundary of one courtyard (Gwadi), one after the other members, both the parties started assembling at the scene of occurrence. Appellants have also sustained injuries, but they have lodged the report on 15-12-1991. No counter case was registered by the police because on their report cognizable offence was not made out and appellants have also not filed any complaint before the learned Magistrate. The medical examination was also delayed, therefore, it is very difficult to consider that the appellants acted in right of private defence of their persons or even there was a free fight. ( 14. The medical examination was also delayed, therefore, it is very difficult to consider that the appellants acted in right of private defence of their persons or even there was a free fight. ( 14. ) ON the basis of the evidence, available on record, we are of the considered view that looking to the statement and compromise arrived at between the parties on the date of incident there was no bad blood between them and there was also no motive existing on the basis of which it can be inferred that all the appellants, after constituting unlawful assembly had a common object of commission of murder of Karansingh or any other members of the complainant/party or even had the knowledge of likelihood of commission of murder of Karansingh or any member of the complainant party, cannot be inferred on the basis of the evidentiary material available in the record, but, it can be very well held that after verbal altercation regarding payment of expenditure of registry charges the appellants assembled there having lathi in their hands and assaulted complaint party, but their common objection was not to commit murder of Karansingh or any other members of the complainant party. At the most, their common object could be to give beating to the complainant party and in prosecution of the said common object they caused simple injuries to witnesses PW-1, Laxmansingh, PW-10, Pratapsingh, PW-5, fatehsingh and PW-6, Gopalsingh. But, during the course of causing simple injuries by lathi by appellant Udhaysingh dealt a solitary blow without aiming at the particular part of the body of the Gajrajsingh and members of unlawful assembly appellant Gajrajsingh dealt a lathi blow which landed on the head of the deceased Karansingh which ultimately proved fatal and Karansingh succumbed to head injuries, after two days in the Hospital. Karansingh sustained only two injures, one on the head resulting into death and another on left wrist joint i. e. swelling which could be caused by lathi blow or even by fall, therefore, we are of the opinion that Gajrajsingh alone would be responsible for his act, but he would not be held responsible for causing fatal injuries to Karansingh with an intention to commit his murder. But at the same time, he could be attributed knowledge that his blow could lend on head of Karansingh, which may result into death of Karansingh. But at the same time, he could be attributed knowledge that his blow could lend on head of Karansingh, which may result into death of Karansingh. In this state of visualisation of evidence on record the appellant Gajrajsingh alone could be held responsible for commission of culpable homicidal not amounting to murder, punishable under Section 304 (Part-II)of the IPC. ( 15. ) IN the result, for the foregoing discussion, the appeal of the appellants is allowed in part. The conviction and sentence of all the appellants under Section 302 read with Section 149 of IPC are hereby set-aside. Their convictions under Sections 323/149 and 147 of IPC sentence of RI for three months, on each count are upheld. Appellant No. 7, Gajrajsingh is convicted under Section 304 (Part- II) of the IPC and he is sentenced to the period already undergone. Learned Counsel for the appellant has pointed out that all the appellants except Gajrajsingh who has already suffered incarceration of nine years also remained in jail for more than three months and they have deposited the fine amount. Learned Trial Court is directed to refund the fine amount, if deposited by the appellants. Except appellant Gajrajsingh, all the appellants are on bail. Their bail and surety bonds shall stands discharged. ( 16. ) LEARNED Trial Court is directed to release appellant Gajrajsingh, forthwith, if not required in any other criminal case. Office is directed to send the copy of the judgment, alongwith the record to the Trial Court for compliance. C. C. as per rules. Criminal Appeal partly allowed.