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2007 DIGILAW 179 (CHH)

SUDRU v. STATE OF MADHYA PRADESH

2007-02-28

DHIRENDRA MISHRA, L.C.BHADOO

body2007
L. C. BHADOO, J. ( 1 ) THE appellants namely Sudru, Hari and Sukru have preferred this appeal under Section 374 (2) of the Cr. P. C. questioning the legality and correctness of the judgment of conviction and order of sentence dated 30th October 1998 passed by 1 Additional Sessions judge, Bastar, Distt:-Jagdalpur in S. T. No. 462/93 whereby the learned Additional Sessions judge after holding each of the accused/appellants guilty under Sections 302/34, 307/34 and 506 of the Indian Penal Code, sentenced each of them to undergo imprisonment for life, to pay a fine of Rs. 200/- in default thereof to further undergo R. I. for one month, to undergo R. I. for seven years and to pay a fine of Rs. 200/-, in default thereof to further undergo R. I. for one month and to undergo R. I. for one year, respectively. All the sentences are directed to run concurrently. ( 2 ) DURING the pendency of this appeal as communicated by learned counsel for the State vide written communication dated 26. 2. 2007, accused/appellant Sudru had expired on 20th march 2000 while undergoing sentence in the central Jail, Jagdalpur as per information received from Central Jail, Jagdalpur. ( 3 ) SINCE no application has been filed by legal heirs of accused/appellant Sudru for prosecuting this appeal, the appeal of accused/appellant sudru stands abated. ( 4 ) CASE of the prosecution in nutshell necessary for disposal of this appeal is that pw-1 Jagarnath lodged the First Information report (Ex. P/1) on 15. 6. 1993 in Police station - Frezpur to the effect that today in the morning his maternal grand-father Thothi, maternal uncle Baldev, servants Natthu, budhram and Budru were constructing wall, at about 10. 00 a. m. Sudru, Hari and Sukru came together from their house and they caught their maternal grand-father and maternal uncle, took them near the house of sukru. Thereafter, Sudru attacked his maternal uncle Baldev with sword on his left shoulder, as a result of which Baldev fell down, Sukru attacked Thothi with axe on his neck, stomach and hand and Hari assaulted with lathi, as a result of which Thothi also fell down on the ground. When he reached to intervene, Hari chased him to assault with lathi, on which he rushed to his house. After sometime all the three accused left and thereafter he along with mahavir and Sona etc. When he reached to intervene, Hari chased him to assault with lathi, on which he rushed to his house. After sometime all the three accused left and thereafter he along with mahavir and Sona etc. took Baldev and Thothi to their house where Thothi died whereas baldev was taken to the Maharani Hospital, jagdalpur. Merg intimation Ex. P/22 was registered. Receiving this report by PW-1 jagarnath, S. H. O. Police Station Frezpur registered the crime under Sections 302/34, 506-B and 307/34 of the IPC and left for the scene of occurrence, prepared the site plan (Ex. P/2) and memo of Ex. P/2-A. Plain and bloodstained soil was taken into possession under Ex. P/3. Clothes of the deceased Thothi were taken into possession under Ex. P/4. Bloodstained Sando baniyan and bloodstained lungi of the accused Sukru were taken into possession under Ex. P/5. Memorandum (Ex. P/10)of accused Sukru was recorded, in pursuance of which one bloodstained axe was taken into possession under Ex. P/6. Memorandum (Ex. P/11)of accused Hari was recorded, pursuant to that one bloodstained lathi was recovered under Ex. P/7. Memorandum (Ex. P/12)of accused Sudru was recorded, in pursuance thereof one bloodstained sword was seized under Ex. P. 13. Two bloodstained lungi of accused Hari were recovered under ex. P/8. One bloodstained lungi and one sando baniyan of accused Sudru were recovered under ex. P/9. Dead body of Thothi was sent for postmortem examination to Maharani Hospital, jagdalpur where Dr. Rambilas Gupta (PW-8)conducted post-mortem on the body of deceased Thothi and prepared the post-mortem report Ex. P/14. The doctor opined that cause of death is neurogenic shock resulting into syncope due to injuries of spinal cord. Inquest (Ex. P/19) on the body of deceased Thothi was prepared. Site plan (Ex. P/28) was prepared. Baldev remained in the hospital and papers regarding his treatment are Ex. P/31. After completion of the investigation charge sheet was filed in the Court of Additional Chief judicial Magistrate, Jagdalpur who in turn committed the case to the Sessions Judge, jagdalpur from where learned Additional sessions Judge received the case on transfer for trial. ( 5 ) PROSECUTION in order to establish the charges against the accused persons examined 10 witnesses in all. The statements of accused persons were recorded under section 313 of the Cr. ( 5 ) PROSECUTION in order to establish the charges against the accused persons examined 10 witnesses in all. The statements of accused persons were recorded under section 313 of the Cr. P. C. in which they denied the material appearing against them in the prosecution evidence and stated that they are innocent and have been falsely implicated in the crime in question on account of land dispute. No defence witness has been examined by the accused persons. ( 6 ) LEARNED Additional Sessions Judge after hearing counsel for the respective parties, convicted and sentenced the accused persons as aforementioned. ( 7 ) WE have heard Dr. N. K. Shukla, learned Sr. Advocate with Mr. A. K. Yadav, counsel appearing for the accused/appellants and Mr. Sudhir Bajpai, learned counsel for the state/respondent. ( 8 ) DR. N. K. Shukla has not disputed the homicidal death of Thothi. Moreover, PW-1 jagarnath, the eyewitness, has stated that the accused persons attacked deceased Thothi with sword, axe and club. Dr. Rambilas Gupta (PW-8)has stated that there were 13 incised wound and two stab wound all over the body, all the injuries were ante mortem in nature and caused by sharp and pointed weapon. Cause of death was neurogenic shock resulting into syncope due to injuries of spinal cord and death was homicidal in nature. Therefore, in view of above ocular and medical evidence it is established that death of Thothi was homicidal in nature. ( 9 ) AS far as involvement of the accused persons in crime in question is concerned, the accused persons have been convicted with the aid of Section 34 of the IPC. In order to bring the case under Section 34 of the IPC, it is necessary for the prosecution to establish that the accused persons came on the spot after forming common intention or the common intention was formed on the spur of moment at the time of commission of crime and the act complained of was done in furtherance of the common intention. In the matter of Girija shankar v. State of U. P. the Hon'ble Apex court held that Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. In the matter of Girija shankar v. State of U. P. the Hon'ble Apex court held that Section is only a rule of evidence and does not create a substantive offence. The distinctive feature of the Section is the element of participation in action. The liability of one person for an offence committed by another in the course of criminal act perpetrated by several persons arises under section 34 if such criminal act is done in furtherance of common intention of the persons who join in committing the crime. Direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the circumstances appearing from the proved facts of the case and the proved circumstances. In order to bring home the charge of common intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused persons to commit the offence for which they are charged with the aid of S. 34, be it pre-arranged or on the spur of moment; but it must necessarily be before the commission of the crime. The true concept of Section 34 is that if two or more persons intentionally do an act jointly, the position in law is just the same as if each of them has done it individually by himself. The existence of a common intention amongst the participants in a crime is the essential element for application of this Section. It is not necessary that the acts of the several persons charged with commission of an offence jointly must be the same or identically similar. The acts may be different in character, but must have been actuated by one and the same common intention in order to attract the provision. The Section does not say 'the common intention of all' nor does it say 'and intention common to all'. Under the provisions of S. 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. The Section does not say 'the common intention of all' nor does it say 'and intention common to all'. Under the provisions of S. 34 the essence of the liability is to be found in the existence of a common intention animating the accused leading to the doing of a criminal act in furtherance of such intention. As a result of the application of principles enunciated in S. 34, when an accused is covicted under S. 302 read with S. 34 in law it means that the accused is liable for the act which caused death of the deceased in the same manner as if it was done by him alone. The provision is intended to meet a case in which it may be difficult to distinguish between acts of individual members of a party who act in furtherance of the common intention of all or to prove exactly what part was taken by each of them. Section 34 is applicable even if no injury has been caused by the particular accused himself. For applying S. 34 it is not necessary to show some overt act on the part of the accused. ( 10 ) APPLYING the above principle on the facts of the present case, we shall scrutinize the evidence of the prosecution witnesses. P. W. 2 baldev, the injured eyewitness who was attacked by accused Sudru with sword on his shoulder, has stated that after being attacked by accused Sudru, he fell down and became unconscious. However, he has not stated anything against accused Sukru and Had that they were also there when he was attacked. PW-3 Mankibai has stated that Natthu and budru came to her house and informed her that quarrel has taken place, on which she came out of the house, she saw that Sukru was having axe, Hari was having lathi and Sudru was having sword and they were attacking Thothi. Four assaults were made by axe on the back of thothi, one on the neck and two on the leg, as a result of which Thothi fell down. Baldev was already lying down as he was assaulted by sudru with sword on his shoulder. Since all the three accused persons made her to run away, she came to her house running. On hearing the commotion Jagarnath also came on the spot. Baldev was already lying down as he was assaulted by sudru with sword on his shoulder. Since all the three accused persons made her to run away, she came to her house running. On hearing the commotion Jagarnath also came on the spot. Therefore, she has stated that thothi was attacked by axe that means Sukru attacked him. PW-5 Budru and PW-6 Natthu who were working as a labourer on the spot with deceased Thothi, have stated that Sudru came with sword, attacked Baldev on his shoulder and thereafter they ran away. Later on, they came to know about the attack and death of Thothi. Therefore, from the above evidence it can be inferred that in the first instance, in fact, Sudru came with sword, and attacked Baldev. This fact has been established by the evidence of injured witness Baldev himself as he has not stated that all the three accused persons came together. Similarly, this fact has also been established by the evidence of PW-5 Budru and PW-6 Natthu. Even PW-1 jagarnath in first stance stated that Sudru attacked Baldev with sword, therefore, Baldev fell down. Thus, from the above evidence, it appears that the other accused persons came on the spot later on. The participation of accused Hari in the crime in question is also doubtful for the reason that as per the evidence of Dr. Rambilas Gupta (PW-8) who conducted postmortem on the body of deceased Thothi has stated that 13 incised wounds and two stab injuries were present on the body of deceased. Thothi, in paragraph-6 of his evidence he has stated that on production by the police he examined the sword, club and axe, injuries present on the body of Thothi could be caused by the said axe and sword except lathi. On the contrary, the witnesses have stated that accused hari also assaulted whereas no injury of lathi was noticed on the body of deceased Thothi, therefore, from the evidence adduced by the prosecution, it can safely be held that the prosecution has not been able to establish that all the three accused persons attacked deceased thothi in furtherance of common intention, therefore, so far as accused Hari is concerned, his participation in the crime in question is suspicious. Accused Sudru came first and attacked Baldev with sword, therefore, in view of the above, we are of the considered opinion that on facts and circumstances of the case provisions of Section 34 are not attracted in this case. ( 11 ) NOW we shall proceed to scrutinize the individual act of accused Sukru and Sudru. Accused Sudru has already expired. Dr. N. K. Shukla, learned counsel for the- accused/appellants argued that accused Sukru sustained fatal injuries on his hand, as a result of which he was hospitalized, which has been admitted by the investigating officer K. S. Ratha (PW-9)in his evidence and the prosecution has not explained the injuries sustained by accused sukru, therefore, he is entitled for acquittal as he acted in his right of private defence. After examination of the whole prosecution case, the material available on record, we are of the considered opinion that the accused Sukru has not been able to discharge the burden on him to establish his right of private defence as, in the first instance, no injury report has been placed on record by the accused in order to ascertain the nature of injuries sustained by him. The defence has not been able to bring on record any evidence either by cross-examining the prosecution witnesses or otherwise adducing any evidence, to show that Thothi, baldev or any other prosecution witnesses in any manner attacked accused Sukru or other accused persons which forced them to exercise their right of private defence, on the contrary pw1 Jagarnath has stated that it is incorrect to say that Thothi attacked Sukru with "rampa". ( 12 ) 'right of private defence, is not defined. Section 96 of the Indian Penal Code enumerates that nothing is an offence, if it is done in exercise of the right of private defence. Section 97 deals with the subject matter of private defence of the body and of property. It, however, extends not only to person exercising the right; but to any other person. The right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Sections 96 and 98 confer a right of private defence against certain offences and acts. Section 99 lays down the limits therefor. The right may be exercised in the case of any offence against the body and in the case of offences of theft, robbery, mischief or criminal trespass and attempts at such offences in relation to property. Sections 96 and 98 confer a right of private defence against certain offences and acts. Section 99 lays down the limits therefor. The right conferred upon a person in terms of Sections 96 to 98 and 100 to 106, are controlled by Section 99. In terms of Section 99 of the Indian Penal Code, the right of private defence, in no case, extends to inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 100 provides that the right of private defence of the body extends under the restrictions mentioned in the last preceding section to the voluntary causing of death or of any other harm to the assailant if the offence which occasions the exercise of the right be of any of the descriptions enumerated therein, namely, "first - Such an assault, as may reasonably cause the apprehension that death will otherwise be the consequence of such assault; secondly - Such an assault as may reasonably cause the apprehension that grievous hurt will otherwise be the consequence of such assault. " to claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden in this behalf is on the accused. ( 13 ) SECTIONS 102 and 105 of IPC deal with the commencement and continuance of the right of private defence of body as well as property. It commences as soon as the reasonable apprehension of danger to the body arises from an attempt, or threat, to commit the offence, although the offence may not have been committed, but not until there is reasonable apprehension. In other words, the right lasts so long as the reasonable apprehension of the danger to the body continues. Section 105 of the Indian Evidence Act casts the burden of proof on the accused who sets up the plea of self-defence and in the absence of proof, it may not be possible for the Court to presume the correctness or otherwise of the said plea. Section 105 of the Indian Evidence Act casts the burden of proof on the accused who sets up the plea of self-defence and in the absence of proof, it may not be possible for the Court to presume the correctness or otherwise of the said plea. No positive evidence although is required to be adduced by the accused; it is possible for him to prove the said fact by eliciting the necessary materials from the witnesses examined by the prosecution. He can establish his plea also from the attending circumstances, as may transpire from the evidence led by the prosecution itself. ( 14 ) WHERE the right of private defence is pleaded, the defence must be a reasonable and probable version satisfying the Court that the harm caused by the accused was necessary for either warding off the attack or for the forestalling the further reasonable apprehension from the side of the accused. The burden of establishing the plea of self-defence is on the accused and the burden stands discharged by showing preponderance of probabilities in favour of that plea on the basis of the material on record. ( 15 ) IN the present case, the nature of injuries sustained by Thothi as per the evidence of Dr. Rambilas Gupta (PW-8), establishes the fact that the accused persons were the aggressors as 15 injuries were inflicted on the body of Thothi and as per the evidence all these injuries were inflicted by means of axe and sword, therefore, the plea of self-defence claimed by the accused looses its significance in view of the evidence available on record. There is nothing in evidence which probabilises that Thothi inflicted any injury. ( 16 ) SECTION 99 of the IPC envisages that right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 102 IPC contemplates that right of private defence continues as long as apprehension of danger to the body exists. ( 16 ) SECTION 99 of the IPC envisages that right of private defence in no case extends to the inflicting of more harm than it is necessary to inflict for the purpose of defence. Section 102 IPC contemplates that right of private defence continues as long as apprehension of danger to the body exists. ( 17 ) IN the instant case, when Baldev was already attacked with sword as a result of which he fell down and became unconscious, servants had already run away from the place of occurrence, deceased Thothi after being assaulted had also fallen down, no apprehension of danger to the life of accused persons was there, even then they mercilessly and brutally assaulted Thothi causing him as many as 15 grievous injuries as a result of which he succumbed to the injuries and died instantaneously. Therefore, in such circumstances the plea of exercise of right of private defence by the accused persons cannot be accepted. Moreover, there is nothing on record to show the nature of injury sustained by Sukru. In this case, no report was lodged by the accused party, even if the case of accused persons was not registered, then why they have not filed criminal complaint under Section 200 of the Cr. P. C. before the Judicial Magistrate, nothing has been brought on record to this effect. ( 18 ) NOW coming to the involvement of accused Sukru in crime in question, we find that PW-1 Jagarnath has categorically stated that Sukru was carrying axe, Sudru was carrying sword and they attacked Thothi with those weapons. The above evidence further stands substantiated by the F. I. R. (Ex. P/1) lodged by jagarnath in which he has categorically narrated the assault made by the accused Sukru and sudru. Moreover, Dr. Rambilas Gupta (PW-8)who examined the weapons of offence recovered from the accused persons has also stated that the injuries found the body of deceased thothi could possibly be caused by sword and axe seized. PW-7 Chandrashekhar has stated that during investigation accused Sukru gave memorandum (Ex. P/10) and in pursuance of that accused Sukru got the axe recovered under ex. P/6 which bears his signature from 'a' to 'a' portion. Thus, from the evidence of PW-1 jagarnath, PW-7 Chandrashekhar, recovery of axe at the instance of accused Sukru, the evidence of Dr. PW-7 Chandrashekhar has stated that during investigation accused Sukru gave memorandum (Ex. P/10) and in pursuance of that accused Sukru got the axe recovered under ex. P/6 which bears his signature from 'a' to 'a' portion. Thus, from the evidence of PW-1 jagarnath, PW-7 Chandrashekhar, recovery of axe at the instance of accused Sukru, the evidence of Dr. Rambilas Gupta (PW-8) as also other attending circumstances, it is established that accused Sukru and Sudru attacked deceased Thothi with axe and sword which resulted in his instantaneous death. ( 19 ) FOR the foregoing reasons, we are of the considered opinion that accused Sukru has rightly been convicted by the trial Court for commission of murder of Thothi. ( 20 ) SO far as conviction of accused Hari is concerned, the same cannot be sustained for the reasons mentioned in the earlier part of the judgment. There is no evidence regarding criminal intimidation by the accused persons in order to attract the provisions of Section 506 of the IPC. There is no evidence that the accused Sukru attacked Baldev and common intention has not been established by the prosecution, therefore, conviction of accused sukru under Section 307/34 cannot be sustained. ( 21 ) IN the result, appeal of accused Sudru stands abated. ( 22 ) APPEAL of accused Had succeeds. He is acquitted of the charges under Sections 302/34, 307/34 and 506 of the IPC. Sentences imposed upon him under these sections are hereby set aside. He is on bail, therefore, his bail bonds are discharged and he need not surrender. ( 23 ) APPEAL of accused Sukru partly succeeds, his conviction under Sections 307/34 and 506 of IPC is set aside. He is acquitted of the charges under Sections 307/34 and 506 of IPC. However, his conviction under section 302/34 is converted into Section 302 of the IPC and sentence imposed upon him under the offence is maintained. Appeal disposed of. --- *** --- .