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Madhya Pradesh High Court · body

2009 DIGILAW 291 (MP)

MAHESH v. STATE OF M. P.

2009-03-03

K.S.CHAUHAN, RAKESH SAKSENA

body2009
JUDGMENT : K. S. CHAUHAN, J. 1. These criminal appeals have been arisen out from the same judgment hence they are being disposed of by the common judgment. 2. These criminal appeals under section 374(2) of the Code of Criminal Procedure have been preferred being aggrieved by the judgment, finding and sentence dated 24-8-2005 passed by the First Additional Sessions Judge, Jabalpur in S.T. No. 271/2002, whereby appellants have been convicted under sections 148, 302/149 of Indian Penal Code and 323/149 of Indian Penal Code (3 counts) and sentenced to R.I. for 1 year with fine of Rs. 500/- each, in default of payment of fine R.I. for 1 month, R.I. for life with fine of Rs. 1000/- each, in default of payment of fine R.I. for 3 months and R.I. for 6 months for each count and fine of Rs. 200/- for each count, in default of payment of fine R.I. for 1 month. All the sentences were directed to run concurrently. 3. The prosecution case in short is that Sukhlal Gond r/o Bamhani Colony, Barela lodged F.I.R. on 27-9-2001 at 8:00 p.m. at Police Station Barela to the effect that his elder brother Amar Singh was Chowkidar in the Forest Department. Prior to 10 days he prevented wife of appellant from cutting green trees of Sagon in forest and snatched her axe. He made complaint to Deputy Ranger. On 25-9-2001 a meeting was convened in village wherein the matter was compromised. But on 27-9-2001 at about 6:00 p.m. Dayaram Gond, Balkesh Gond, Mahesh Gond, Tulsi, Ramprasad and Bamhoriwala armed with lathi and farsa came to the house of complainant and called Amar Singh who did not go out hence they all entered in the house and caused marpeet to Amar Singh. His brother Inder Singh came to intervene but he was also beaten by them. Complainant Sukhlal and his father Shahman were also beaten. Amar Singh and Inder Singh fell down on account of injuries caused to them. This incident was witnessed by Gundi Bai, Beti Bai and other persons. Sukhlal lodged the report. On the basis of which Crime No. 252/2001 under sections 147, 148, 149, 307, 324, 323 and 448 of Indian Penal Code was registered. Inder Singh died on the way to Victoria Hospital, Jabalpur. Panchnama of dead body was prepared. Post mortem was conduced by Dr. Suresh Kumar Nema. Sukhlal lodged the report. On the basis of which Crime No. 252/2001 under sections 147, 148, 149, 307, 324, 323 and 448 of Indian Penal Code was registered. Inder Singh died on the way to Victoria Hospital, Jabalpur. Panchnama of dead body was prepared. Post mortem was conduced by Dr. Suresh Kumar Nema. According to his opinion, the cause of death was head injury. Amar Singh, Sukhlal and Shahman were medically examined. The injuries were found on their persons. Blood stained and controlled soil were seized from the spot. Map was prepared. The statements of the witnesses were recorded. The accused persons gave the disclosure statements under section 27 of Indian Evidence Act in pursuance thereof the offence of weapon farsa, lathi etc were seized. They were arrested. After completing the investigation, the charge-sheet was filed in the Court of J.M.F.C., Jabalpur who committed this case to the Sessions Court for trial. 4. The appellants were charged under sections 147, 148, 302 or in alternative under section 302/149, 323 (3 counts) of Indian Penal Code. They denied the guilt and claimed to be tried mainly contending that they are innocent and have been falsely implicated. Prosecution examined as many as 11 witnesses and placed the documents Exhibit P-1 to P-29 on record. Accused persons also examined 4 witnesses and placed the documents Ex.D-1 to D-7 on record. After appreciating the evidence, trial Court found the appellants guilty under sections 147, 148, 302/149 and 323/149 (3 counts) of Indian Penal Code but sentenced under sections 148, 302/149 and 323/149 (3 counts) of Indian Penal Code as stated hereinabove in para No. 2 of this judgment. Being aggrieved by the impugned judgment, finding and sentence the instant appeals have been preferred by the appellants on the grounds mentioned in the memo of appeals. 5. Learned counsel for the appellants submitted that the trial Court has not appreciated the evidence in proper perspective. There are several contradictions and omissions in the statements of prosecution witnesses. The Court below has committed illegality in placing reliance on the evidence of Sukhlal (PW-1), Sahman (PW-2) and Amar Singh (PW-5). The injuries were also caused to the appellants Mahesh, Dayaram and Tulsiram and counter case has been registered wherein they have been convicted and sentenced. The Court below has failed to extend the benefit of right of private defence to the appellants. There was sudden quarrel. The injuries were also caused to the appellants Mahesh, Dayaram and Tulsiram and counter case has been registered wherein they have been convicted and sentenced. The Court below has failed to extend the benefit of right of private defence to the appellants. There was sudden quarrel. There was no any intention or motive to kill Inder Singh. Therefore, all the ingredients required to prove the offence under section 302, Indian Penal Code has not been proved. 6. Learned counsel for the appellant Gulab submitted that his name has not been mentioned in F.I.R. by complainant Sukhlal (PW-1). His name has been added later on which is an afterthought. He has been falsely implicated due to old enmity. Learned counsel further submitted that the prosecution has failed to prove the case beyond reasonable doubt hence the finding of guilt is erroneous which deserves to be set aside and the appellants are entitled for acquittal. 7. On the contrary, Shri T. K. Modh, learned counsel appearing on behalf of the respondent/State supported the impugned judgment, finding and sentence mainly contending that the appellants have caused marpeet at the house of the complainant. They were the aggressors and the injuries of the appellants are simple in nature, therefore, no benefit of right of private defence can be extended to them. The trial Court has discussed this aspect in great detail and has rightly convicted them which it does not call for any interference. 8. The main point for consideration in this appeal is that whether the trial Court has committed an error in convicting and sentencing the appellants for the offence under sections 147, 148, 302/149 and 323/149(3 counts) of Indian Penal Code? 9. Sukhlal (PW-1), Shahman (PW-2), Amar Singh (PW-5), Smt. Gundi Bai (PW-6) and Smt. Imarti Bai (PW-11) have deposed in one voice that the appellants entered in their house and inflicted injuries to Amar Singh, Inder Singh, Sukhlal and Shahman by lathi and farsa on account of which they sustained injuries and Inder Singh died. Sukhlal (PW-1) lodged report at Police Station Barela which was written by Shailesh Mishra (PW-8). The post-mortem examination of Inder Singh was done by Dr. Suresh Kumar Nema (PW-3) and found external injuries mentioned in post-mortem report Ex.P-5. According to his opinion, the cause of death was head injury. The injured persons Sukhlal was examined by Dr. Sukhlal (PW-1) lodged report at Police Station Barela which was written by Shailesh Mishra (PW-8). The post-mortem examination of Inder Singh was done by Dr. Suresh Kumar Nema (PW-3) and found external injuries mentioned in post-mortem report Ex.P-5. According to his opinion, the cause of death was head injury. The injured persons Sukhlal was examined by Dr. Smt. S. Sen (PW-7) and Amar Singh and Shahman were examined by Dr. C.B. Arora (PW-9) and found the injuries on their persons as detailed in medical report Ex.P-6, P-22 and P-23 respectively. Thus medically it is proved that these persons sustained injuries and Inder Singh died on account of such injuries. 10. Shailesh Mishra (PW-8) recorded the disclosure statement of the appellants and seized the weapons of offence at their instance. 11. On the contrary, the defence of the appellants is that appellant Mahesh was going to his house from the backside of the house of complainant Sukhlal. Amar Singh, Inder Singh and Sukhlal met him. Amar Singh inflicted lathi blow at his head on account of which he sustained injury. He raised alarm. Appellants Dayaram and Tulsiram came there but they were also beaten by the complainant party. Appellant Mahesh also lodged report at police station Barela on the same day wherein Crime No. 253/2001 under sections 324, 323/34 of Indian Penal Code was registered against the complainant-party: These injured persons were also sent for medical examination. They were examined by Dr. Smt. S. Sen (PW-7) and Dr. C.B. Arora (PW-9) and found the injuries as detailed in medical report Ex.D-3, D-4 and D-5. Appellants Mahesh and Tulsiram have examined themselves as DW-3 and DW-4 to support the fact that the complainant-party caused marpeet to them. Smt. Anjeera Bai (DW-1) and Dabbal Singh (DW-2) have also given the evidence in support of these appellants. Thus, the appellants have tried to establish that the complainant-party caused marpeet to Mahesh, Dayaram and Tulsiram on account of which they sustained injuries for which the report was lodged and the prosecution against the complainant party was also launched. It has also been submitted by learned counsel for the appellants that in the counter case the complainants Sukhlal and Amar Singh have also been convicted and sentenced. Thus, it is evident that suddenly the quarrel took place in between the parties. Both parties sustained injuries. It has also been submitted by learned counsel for the appellants that in the counter case the complainants Sukhlal and Amar Singh have also been convicted and sentenced. Thus, it is evident that suddenly the quarrel took place in between the parties. Both parties sustained injuries. The case and counter case were launched against each other which ultimately culminated into conviction. 12. Now we have to consider as to what was the genesis of the crime. According to the prosecution, Amar Singh was Chowkidar in the Forest Department. The wife of appellant Dayaram was cutting the green Sagon (teak) trees. He prevented and snatched the axe from her and also reported the matter to Deputy Ranger but the matter was subsided in between them before the forest officials. It is alleged by the prosecution that after 3 days of the compromise the appellants came at the house of complainant, called Amar Singh but he did not come out of the house, therefore, they all entered into the house and caused marpeet to Amar Singh, Inder Singh, Sukhlal and Shahman. But it appears that prosecution is suppressing some facts because it is not clear that as to why they cause marpeet when they already entered into compromise. On the contrary, the story as put forth by the defence prima facie appears to be convincing. According to the defence story Amar Singh (PW-5) restrained Ramprasad the father of appellant Mahesh, therefore, Mahesh had gone to police station Barela to lodge the report. At the time of incident he was returning back to his house passing from the back side of the house of complainant where Amar Singh, Inder Singh and Sukhlal met with him. They caused injuries to him and when he made hue and cry other appellants Dayaram and Tulsiram reached there who were also beaten by them. They were beaten as to why he has gone to lodge the report. Further the defence story is silent as to how complainant party sustained injuries. Thus both the parties are suppressing material facts on one point or other therefore, probability of the case would be considered. 13. The quarrel started as put forth by the defence. Other appellants, reached there. Complainant party rushed towards their house. Quarrel continued and ended in the house of complainant which is the place of occurrence. It is manifestly clear that quarrel started suddenly and without premeditation. 13. The quarrel started as put forth by the defence. Other appellants, reached there. Complainant party rushed towards their house. Quarrel continued and ended in the house of complainant which is the place of occurrence. It is manifestly clear that quarrel started suddenly and without premeditation. When the beating of appellant Mahesh, Tulsiram and Dayaram were done they were provoked and other appellants also joined, therefore, in the heat of passion they caused injuries to the complainant party, therefore, in the facts and circumstances of the case, Exception 1 and 4 of section 300, Indian Penal Code would be attracted. 14. Shri R. K. Shukla, learned counsel appearing for appellant Gulab has vehemently argued that this appellant has been falsely implicated on account of old enmity. Therefore, his conviction is bad in law. The contention of the learned counsel for the appellant seems to be reasonable. The reason is that complainant Sukhlal (PW-1) has not mentioned the name of this appellant Gulab in the F.I.R. (Ex.P-1). His evidence in this regard has been contradicted from the police report. He himself has admitted that prior to 10 days of this incident report was lodged against Gulab. Thus, it appears that there was the enmity in between this appellant and the complainant and possibility of falsely implicating him as accused cannot be ruled out. The evidence against him is not of dependable quality hence it is not proved that he took part in the commission of this offence hence finding of guilt is erroneous which deserves to be set aside and he deserved to be acquitted. 15. So far as appellant Mahesh, Dayaram and Tulsiram are concerned, they have sustained the injuries in this incident and, therefore, their presence and participation in the commission of this crime cannot be doubted. Ramprasad is the father of appellant Mahesh. His presence is also probable. Other appellants Balkesh and Bamhoriwala @ Baktu have taken the defence that at the time of incident they were at Jabalpur but the same has not been established by any evidence. 16. Thus, all the appellants except Gulab have participated in commission of this crime but their intention was not to kill Inder Singh. His presence is also probable. Other appellants Balkesh and Bamhoriwala @ Baktu have taken the defence that at the time of incident they were at Jabalpur but the same has not been established by any evidence. 16. Thus, all the appellants except Gulab have participated in commission of this crime but their intention was not to kill Inder Singh. Since the quarrel started suddenly and they caused injuries to complainant party wherein Inder Singh died as a result of head injury, they were knowing that causing such injury may cause his death, therefore, their act would come under 1st and 4th exception of section 300 of Indian Penal Code, hence they would be liable under section 304 Part II instead of section 302 of Indian Penal Code. 17. Consequently, Criminal Appeal No. 1766/2005 filed by appellant Gulab @ Boura succeeds and is hereby allowed. His conviction and sentence passed by the trial Court are hereby set aside. He is on bail. His bail bonds are discharged. 18. Criminal Appeal No. 1758/2005 and Criminal Appeal No. 1798/2005 are partly allowed. The conviction and sentence passed under section 302/149 of Indian Penal Code is hereby set aside. Instead of it they are convicted under section 304 Part-II/ 149 of Indian Penal Code and sentenced to R.I. for 5 years with fine of Rs. 1000/- each, in default of payment of fine to undergo R.I. for 1 month. However the sentence passed under section 148 and 323/149 (3 counts) of Indian Penal Code by trial Court are hereby maintained. The substantive jail sentence shall run concurrently.