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2008 DIGILAW 1306 (MP)

Ramhet v. State of M. P.

2008-11-07

INDRANI DATTA

body2008
JUDGMENT 1. This appeal is preferred against the judgment of conviction and sentence dated 9.9.2002 passed by Shri R.K. Jain, Fourth Additional Sessions Judge (Fast Track Court), Shivpuri in ST No. 108 of 1999 by which, the appellants-accused have been convicted under sections 148, 304 Part II/149, 325/149 (four counts) and 323/149 (three counts) of Indian Penal Code and sentenced to undergo rigorous imprisonment for 18 months with fine of Rs.100/- each under section 148 of IPC, five years rigorous imprisonment with fine of Rs.200/- each under section 304 Part II read with section 149 of IPC, two years rigorous imprisonment with fine of Rs.100/- each under section 325/149 (four counts) and three months rigorous imprisonment with fine of Rs.100/- each under section 323/149 (three counts). All the sentences are to run concurrently and in default of payment of fine, they are further directed to undergo 15 days, 1,1 and 1 month's RI respectively. 2. The case of prosecution in brief is that on 2.10.1998 complainant Bhamru s/o Bhullalatav (PW6) lodged Dehati Nalishi Ex.P-16 in injured condition at Police Station Sirsaud that appellants No.1 to 4 Ramhet, Dara Singh, Madho Singh and Hakim Singh assaulted him and his brother Govind (PW15) on previous night at 8 p.m. Next morning i.e. on 2.10.1998 while they were going on bullock cart to lodge report accompanied with Rajaram (PW14), Ramdayal (PW12), Manphool (PW16), Parsadi (PW11), Gore (PW13), deceased Pragi, Bhimma (PW18), Sripati (PW2) and Kripasi (PW 17) and when they reached Sirsaud Shivpuri Road near Gas Pipeline, they saw appellants-accused and co-accused armed with farsa, lathi, luhangi and axe. Appellants-accused and other co-accused started beating them by means of above weapons and inflicted injuries to Gore (PW13), Bachnu (PW11), Amroo (PW10), Santo (PW19), Ginni (PW1), Rajaram (PW14), Govind (PW15), Ramdayal (PW12), Manphool (PW16) and Parsadi (PW11). Imrat, Khargi, Pritam, Lohare, Hazari, Pragi, Bhimma, Kripasi and Sripati ran away from the spot and appellants chased them for beating. On the basis of Dehati Nalishi, first information report Ex.P-47 was lodged. All injured were sent for medical examination. Skiagraphy of injured Rajaram (PW14), Parsadi (PW11), Bhamra (PW8) and Manphool (PW16) was conducted and fracture of fibula metacarpal bone, right clavicle and left radius bone which is Ex.P-4 to P-11 was detected. Pragi died after four days of the incident. Autopsy on the dead body of deceased Pragi was conducted two times. All injured were sent for medical examination. Skiagraphy of injured Rajaram (PW14), Parsadi (PW11), Bhamra (PW8) and Manphool (PW16) was conducted and fracture of fibula metacarpal bone, right clavicle and left radius bone which is Ex.P-4 to P-11 was detected. Pragi died after four days of the incident. Autopsy on the dead body of deceased Pragi was conducted two times. Farsa, lathi, luhangi and axe were seized as per Ex.P-30 to P-37, Ex.P-39 to P-45 from all the appellants-accused and other co-accused by D.S. Bhadoria (PW26) Investigating Officer. Spot map Ex.P-7 was prepared. After investigation, charge-sheet was filed in the Court of CJM, Shivpuri from where, the case was committed to the Court of Session. 3. The appellants with other co-accused were prosecuted, charged and tried for committing offence under sections 302/149, 325, 324 and 323/ 149 of IPC. Learned trial Court acquitted co-accused lagannath, Maniram and Uttam Singh under sections 148,302/149,325,324 and 323/149 of IPC. The appellants were acquitted of the offence under sections 302/149 and 324 of IPC but convicted under section 148,304 Part II/149, 325/149 (four counts) and 323/149 (three counts), hence, this appeal. 4. Learned counsel for the appellants-accused confined his arguments only on the point that the offence under section 304 Part II of IPC is not made out against appellants-accused. It is urged that from medical evidence, it is not proved that deceased died due to sustained injuries. It is prayed that the appellants be acquitted. 5. Learned counsel for the State on the other hand has supported impugned judgment of the trial Court. 6. Considered the contentions advanced by learned counsel for the parties and perused the record of the case. 7. To prove its case, the prosecution has examined 31 witnesses. Bhamru (PW8) is eye-witness of the incident. He has narrated about two incidences. First in the previous night at about 8 p.m. As per his statement, prior to the day of incidence, his brother Govinda (PW15) told him that appellants-accused and co-accused assaulted him near the well. 7. To prove its case, the prosecution has examined 31 witnesses. Bhamru (PW8) is eye-witness of the incident. He has narrated about two incidences. First in the previous night at about 8 p.m. As per his statement, prior to the day of incidence, his brother Govinda (PW15) told him that appellants-accused and co-accused assaulted him near the well. When he complained about this mater to appellant Hakim Singh, all appellants-accused and co-accused assaulted him by means of lathi and axe in the night at about 8 p.m. Thereafter, next day morning when he was going to lodge report along with Govind (PW15), Pragi (deceased), Rajaram (PW14), Manphool (PW16), Gore (PW13), Pragi, Bhimma (PW18), Sriwati (PW2), and Kripasi (PW17), appellants-accused armed with axe lathi, farsa and luhangi assaulted them and started beating them with their respective weapons. He sustained injuries, Bachnu (PW10), Parsadi (PW11), Pragi, Rajaram (PW14), Manphoon (PW16), Amroo (PW9), Lahare (PW29) and Gore (PW13) also sustained injuries. This witness has further deposed that appellant Rorilal assaulted deceased Pragi by means of lathi. Appellant Ramhet assaulted the deceased by means of axe and other appellants-co-accused assaulted deceased Pragi by means of lathi. Pragi was admitted in the hospital who died due to these injuries after three days. The statement of this witness is further corroboratedby the statement of Imrat (PW3), Amroo (PW9), Parasadi (PW11), Ramdayal (PW12), Gore (PW13), Rajaram (PW14), Govind (PW15), Manphool (PW16), Bhimma alias Brahmma (PW18) and Santo (PW19) who are injured witnesses and they were present on the spot. From the statement of eye-witnesses, it is proved that the appellants-accused assaulted the deceased Pragi and these witnesses and deceased Pragi died due to sustained injuries in the incident. 8. So far as injuries sustained by all these injured witnesses are concerned, evidence in this respect is not to be scrutinized because, learned counsel for the appellants does not challenge the finding of trial Court with respect to the conviction of appellants under sections 148, 325/149 (four counts) and 323/149 (three counts). 9. So far as finding of trial Court in respect of holding appellants-accused guilty under section 304 Part II of IPC is concerned, before holding an accused guilty under Ist or IInd Part of section 304 of IPC, death must have been caused by appellants-accused under any of the circumstances mentioned in five exceptions to section 300 of IPC is to be proved. For constituting the offence under section 304 Part II of IPC, it is to be seen that : (i) act is done with knowledge that it is likely to cause death but without any intention to cause death; or (ii) to cause such bodily injury as is likely to cause death. 10. To derive to a conclusion that whether appellants-accused inflicted injuries to deceased with knowledge that their act is likely to cause his death or to cause such bodily injury which is likely to cause his death, nature of injuries sustained by deceased is to be seen. In this behalf, medical evidence is to be observed. Deceased Pragi was medically examined on 2.10.1998 by Dr. M.P. Barua (PW21). He found following injuries: (i) Swelling l"x 1" on the mid and front of left thigh; (ii) Swelling 1/2"x 1/2" on the left knee joint area of in front; (iii) Abrasion 1/4"x 1/4" with swelling in the mid of left forearm; (iv) Abrasion 1/4"x 1/4" on the tip of right ring finger. As per medical report Ex.P-27 and statement of Dr. Barua (PW21), all the injuries were simple in nature and were caused by hard and blunt object. 11. The deceased died on 6.10.1998, thereafter autopsy on the dead body was conducted by Medical Board consisting Dr. Govind Singh (PW4), Dr. R.Y. Sharma (PW6), Dr. H.P. Gupta (PW22) and Dr. A.P. Shrivastava who found following injuries on the body of deceased: (i) Lacerated wound on the posterior aspect of left forearm over ulna 1 cm x 4 mm; (ii) An abrasion on anterior aspect of left knee I cm x 1 cm, no swelling found; (iii) Nail bed injury on the distal 1/3rd of the right ring finger distal 1/4th of nail severed transversely attached. . (iv) Tiny abrasions on lateral aspect of elbow. All these injuries were detected in post-mortem Ex.P-l. Dr. Govind Singh (PW4) and Dr. R.Y. Sharma (PW6) and Dr. Gupta (PW22) including other doctors opined that the deceased had advance tuberculosis of lungs which resulted into massive fatal haemoptosis and pulmonary oedema. The death was due to bleeding from lung. In cross-examination para 10, Dr. Govind Singh (PW4) has deposed that as per Medical Board's opinion, definite reason of death of deceased can only be given after FSL report. 12. In this way, entire medical evidence of Dr. Govind Singh (PW4) and Dr. The death was due to bleeding from lung. In cross-examination para 10, Dr. Govind Singh (PW4) has deposed that as per Medical Board's opinion, definite reason of death of deceased can only be given after FSL report. 12. In this way, entire medical evidence of Dr. Govind Singh (PW4) and Dr. R.Y. Sharma (PW6) and Dr. Gupta (PW22) and report Ex.P-l is not sufficient to arrive at the conclusion that the deceased died due to the sustained injuries. All the injuries found on the body of deceased are simple in nature. No injury was found on vital part of the body of deceased. Postmortem was conducted by Medical Board and doctors have not opined that deceased died due to sustained injuries. 13. Dr. J.N. Soni (PW31) along with a panel of doctors again conducted autopsy on the dead body of deceased Pragi and found following injuries as per his report Ex.P-48A : (i) Abrasion 1 cm over right medial epiconlyl with scab; (ii) Contusion over right tip of right ring finger blueish in colour with separation of upper part of the nail; (iii) Abrasion over left knee 1 cm x 1 cm scab present; (iv) Abrasion with scab 3 cm x 0.5 cm transversely placed; (v) Abrasion with scab over left leg nearly mid over shin of tibia I x 0.5 cm vertical; (vi) Abrasion over left thing 4 cm x 0.5 cm scab present; (vii) Lacerated wound below left elbow 1.5 cm x 1 cm x 0.1 cm. Dr. Soni (PW31) has stated that no conclusive opinion can be drawn even after second autopsy. 14. Analyzing the above medical evidence, factual position is as follows: (i) All injuries found on the dead body of deceased are simple in nature; (ii) No injury was found on the vital part of the body of deceased; post-mortem conducted two times by the medical board consisting of panel of doctors even then no definite opinion could be given that the deceased died due to sustained injuries; (iii) The doctors who conducted post-mortem opined that the deceased was suffering from tuberculosis which was in advance stage and died due to bleeding from lung resulting in failure of heart and respiratory system; (iv) FSL report is not filed by the prosecution to find out proper reason of death of deceased. 15. 15. From the above scrutiny of evidence, it is abundantly clear that the injuries sustained by deceased Pragi were all on non-vital parts of his body. In the above situation, it cannot be presumed that the deceased died due to simple abrasions and contusions sustained on forearm, knee, elbow finger and left leg, etc. These injuries sustained by the deceased are apparently not sufficient to cause death in normal course of nature. So medical evidence does not disclose that the death of deceased was due to sustained injuries. 16. It is admitted fact that on the date of incident, there was free fight between complainant party and the appellants-accused. It is alleged that the appellants have also sustained injuries and they have also filed complaint at police station. Virendra Kumar (PW7) has stated that the case under sections 147, 148, 149 and 323 of IPC and under section 3(1)(10) of SC ST Act was registered against complainant party on the report of appellant-accused Hakim Singh. So in that free fight, if deceased Pragi sustained simple injuries, it cannot be presumed that the appellants-accused assaulted Pragi with knowledge that their act may cause his death or may cause such bodily injury as is likely to cause his death. So offence under section 304 Part II of IPC is not made out against appellants- accused. 17. So far as conviction of appellants-accused under sections 148, 325/149 (four counts) and 323/149 (three counts) of Indian Penal Code is concerned, finding of trial Court in this respect is affirmed as not challenged. It is submitted on behalf of learned counsel for the appellants-accused that the appellants are in custody since more than six months. Trial is pending since the year 1999. They are regularly appearing before the trial Court. Therefore, a lenient view is to be taken and they be released on the sentence which they have already undergone. 18. Considering the facts and circumstances of the case, this appeal is partly allowed. Conviction of appellants-accused under section 304 Part II/149 of IPC is set aside. Their conviction under sections 148, 325/149 (four counts) and 323/149 (three counts) is affirmed. Their jail sentence is reduced. They are sentenced to the period already undergone by them in confinement. Fine amount imposed under section 325/149 (four counts) is enhanced from Rs.100/- to Rs.7,000/- each. Conviction of appellants-accused under section 304 Part II/149 of IPC is set aside. Their conviction under sections 148, 325/149 (four counts) and 323/149 (three counts) is affirmed. Their jail sentence is reduced. They are sentenced to the period already undergone by them in confinement. Fine amount imposed under section 325/149 (four counts) is enhanced from Rs.100/- to Rs.7,000/- each. This amount is to be deposited in addition to the amount already deposited by them. In lieu of payment of fine, appellants-accused have to undergo six months RI. Fine awarded under other sections shall remain as it is.