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2009 DIGILAW 326 (CHH)

LAKHAN v. STATE OF M. P. (NOW C. G. )

2009-11-25

R.L.JHANWAR, T.P.SHARMA

body2009
JUDGMENT As per Hon'ble Shri T.P. Sharma, J.- 1. By this appeal the appellants have challenged legality & propriety of the judgment of conviction & order of sentence dated 28-2-1989 passed by the 2nd Additional Sessions Judge, Raipur in Sessions Trial No. 118/87, whereby & where under learned Additional Sessions Judge after holding the appellants guilty for commission of the offence of murder, convicted them under Section 302 read with Section 34 of the I.P.C. and sentenced each of them to undergo imprisonment for life. 2. Judgment of conviction & order of sentence is challenged on the ground that the Additional Sessions Judge has not considered the case of right of private defence and committed illegality. 3. Case of the prosecution, in brief, is that on 31-12-86 at about 9.30 p.m. appellant No.1, owner of the hotel situated at village Saragaon, Distt. Raipur, was present in his hotel; deceased Suryakant, witness Raj Kumar Mishra (PW -5) & Ramlal (PW -1) came into the hotel of accused/appellant No.1 Lakhan; they consumed liquor and also ate non-vegetarian; appellant No.1 demanded money from Raj Kumar Mishra (PW -5) and during the course of demand, he used some unhealthy words on which Raj Kumar Mishra (PW -5) caught hold of the collar of appellant No.1 Lakhan. Deceased Suryakant intervened and appellant No.1 Lakhan used filthy words on the deceased also. Deceased Suryakant & Raj Kumar Mishra (PW -5) went out from the hotel, took betel from the betel shop of Rajesh Kumar (PW -4) and again they went inside the hotel. Appellants No.2 & 3 came inside the hotel, appellant No.2 Dhurau was holding iron pipe, he used filthy language on deceased Suryakant & Raj Kumar Mishra (PW -5) on which deceased Suryakant took out one wooden club and ran out of the hotel, while he was passing nearby appellant No.1 Lakhan, Lakhan received injury on which Lakhan took out the wooden club and went towards deceased Suryakant. Raj Kumar Mishra (PW - 5) intervened in the dispute. Appellant No.1 Lakhan assaulted the deceased with wooden club over his neck as a result deceased Suryakant fell down. Again appellant No.2 Dhurau & appellant No.1 Lakhan assaulted Suryakant and also chased Raj Kumar Mishra (pW -5) who fled away from the spot. stiryakant died on the spot. 4. Raj Kumar Mishra (PW - 5) intervened in the dispute. Appellant No.1 Lakhan assaulted the deceased with wooden club over his neck as a result deceased Suryakant fell down. Again appellant No.2 Dhurau & appellant No.1 Lakhan assaulted Suryakant and also chased Raj Kumar Mishra (pW -5) who fled away from the spot. stiryakant died on the spot. 4. Dehati Nalishi was lodged by Ramlal (PW -1) in the intervening night of 31-12-86 & 1-1-87 at about 2 a.m. vide Ex.P-1. On the basis of Dehati Nalishi (Ex.P-1), F.I.R. was registered vide Ex.P-1 (A). Dehati Merg was recorded vide EX.P-16 and registered merg was recorded vide EX.P-17. Investigating Officer proceeded for the spot and after summoning the witnesses, inquest over the dead body of deceased Suryakant was prepared vide Ex.P-11. Dead body of Suryakant was sent for autopsy to District Hospital, Raipur vide Ex.P-14(A) and autopsy was conducted by Dr. K.L. Gopawar (PW -8) vide EX.P-14 who found following injuries on the body of deceased Suryakant :- (1) Lacerated wound 4 cms. x 1 cm. vertically placed scalp deep on right side of frontal region; (2) Abrasion 5 cms. x 1 cm. horizontally placed on right side of neck; (3) Abrasion 0.5 cm. x 0.5 cm. on posterior aspect of left elbow joint; (4) Bruise 0.5 cm. x I cm. irregular shaped on outer aspect of left wrist; & (5) Fracture of hyoid bone & larynx, and compression of larynx & trachea. On internal examination, fracture of right temporal bone and separation & suture of from to parietal bone was found. Cause of death was coma as a result of head injury and compression of larynx & trachea. 5. Plain soil and bloodstained soil were recovered from the spot vide Ex.P-6. A pair of slippers was recovered from the spot vide EX.P-7. One pair of Chappal was recovered from the spot vide EX.P-8. The appellants were taken into custody. On the basis of discloser statement Ex.P-2, two wooden clubs were recovered at the instance of Lakhan vide EX.P-4. On the basis of discloser statement of appellant No.2 Dhurau vide Ex.P-3, iron pipe was recovered vide Ex.P-5. One lock & key of the hotel were recovered from appellant No.1 Lakhan vide EX.P-9. Sealed cloth of the deceased was recovered from the constable vide Ex.P-12. Spot map was prepared vide Ex.P-13 by the Patwari. On the basis of discloser statement of appellant No.2 Dhurau vide Ex.P-3, iron pipe was recovered vide Ex.P-5. One lock & key of the hotel were recovered from appellant No.1 Lakhan vide EX.P-9. Sealed cloth of the deceased was recovered from the constable vide Ex.P-12. Spot map was prepared vide Ex.P-13 by the Patwari. Seized articles were sent for examination vide Exs.P-15A & 16A. Injured Raj Kumar Mishra (PW -5) was also examined by Dr. Mahendra Dewangan (PW -10) vide Ex.P-28 and following injuries were found on his body :- (1) 2 oval abrasions over left knee joint; (2) A linear 1" abrasion over right middle finger; (3) An oval abrasion 1" x ½ " just below left eye; & (4) An abrasion ½ " over left eye. Spot map Ex.P-22 was prepared by the Investigating Officer and seized articles were sent for chemical analysis vide Exs.P-23 & P-24. 6. During the course of investigation, statements of Ramlal, Rajesh Kumm & Raj Kumar Mishra were recorded under Section 164 of the Cr.P.C. Statements of the witnesses were recorded under Section 161 of the Cr.P.C. and after completion of investigation, charge sheet was filed before the Judicial Magistrate First Class, Raipur, who in turn, committed the case to the Court of Sessions from where learned 2nd Additional Sessions Judge, Raipur received the case on transfer for trial. 7. In order to prove the guilt of the appellants, the prosecution has examined as many as ten witnesses. The accused persons were examined under Section 313 of the Cr.P.C. in which they denied the guilt and claimed that in exercise of the right of private defence with a view to save themselves, they have caused simple injuries. 8. After appreciating the evidence and affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted & sentenced the appellants in the aforesaid manner. 9. During the pendency of the appeal, appellant No.2 Dhurau was released on completion of his sentence. 10. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 11. Mr. R.S. Gupta, learned counsel appearing on behalf of the appellants, vehemently argued that appellants No.1 & 3 have not caused any fatal injury to the deceased. 10. We have heard learned counsel for the parties, perused the judgment impugned and record of the trial Court. 11. Mr. R.S. Gupta, learned counsel appearing on behalf of the appellants, vehemently argued that appellants No.1 & 3 have not caused any fatal injury to the deceased. The deceased was aggressor and has caused injury to appellant No.1 Lakhan on which in exercise of the right of private defence of the person, appellant No.1 Lakhan has used wooden club to save himself. According to the case of the prosecution, the deceased & the witnesses came to the hotel of Lakhan for eating food, they consumed liquor and ate food, at that time there was no intention of committing any offence, even there was no sharing of common intention for commission of any crime, the alleged offence was committed on the spur of moment at the instance of deceased Suryakant who after consuming liquor assaulted Lakhan. The prosecution has adduced the evidence of the witnesses, but there are material contradictions & omissions in their evidence and their statements recorded under Section 161 of the Cr.P.C. The witnesses have exaggerated and improved their statements. No fatal injury has been caused by the appellants when the deceased fell down. Learned counsel placed reliance in the matter of Anmol Singh Vs. Asharfi Ram & Ors.1 in which it has been held by the Apex Court that if there is material difference between F.I.R. and Court version of the sole eyewitness, the evidence of such witness is not reliable. Learned counsel further placed reliance in the matter of Gopal and others Vs. The State of Rajasthan-2 in which it has been held by the Apex Court that more injuries to the accused persons support the case of defence that the injuries which were inflicted by the accused were caused in defence of their person when they had been attacked by the complainant party. Learned counsel also placed reliance in the matter of State of MP. Vs. Sakhawaf in which it has been held by the M.P. High Court that vital omission as to actual incident is fatal to prosecution. Learned counsel relied upon the matter of Deo Narain Vs. State of U.P4 in which it has been held by the Apex Court that in case of the right of private defence, receiving of actual injury is not necessary. Learned counsel relied upon the matter of Deo Narain Vs. State of U.P4 in which it has been held by the Apex Court that in case of the right of private defence, receiving of actual injury is not necessary. Learned counsel further relied upon the matter of Seriyal Udayar Vs. State of Tamil Nadu5 in which it has been held by the Apex Court that no specific plea of the right of private defence is necessary, it can be inferred on the basis of the manner in which the incident had taken place. Learned counsel also relied upon the matter of Idrish Bhai Daudbhai Vs. State of Gujarat6 in which it has been held by the Apex Court that in absence of any pre-planning, sharing of common intention is not possible. 1. 1998 SAR (Criminal) 736 2. AIR 1972 SC 1838 3. 1985 WN 331 4. AIR 1973 SC473 5. AIR 1987SC 1289 6. 2005(2) AC 93 (SC) 12. On the other hand, learned State counsel supported the judgment and argued that the deceased died as a result of head injury and compression of trachea. According to the case of the 'prosecution and the evidence, when deceased Suryakant fell down, the appellants pressed his neck. This shows the grave intention of causing the death of the deceased. Learned State counsel further argued that according to the case of the parties, the complainant party has consumed liquor, but defence have not consumed liquor and have not lost their control. 13. In order to appreciate the contentions of the parties, we have examined the ocular & documentary evidence available on record. 14. In the present case, homicidal death of deceased Suryakant Dewarankar as a result of the injuries sustained by him is not substantially disputed, otherwise also established by the evidence of Ramlal (PW-l), Rajesh Kumar (PW-4), Rajkumar Mishra (PW-5), Dr. K.L. Gopawar (PW-8), Sub Inspector L.K. Pandey (PW-9) and the documents of Dehati Nalishi (Ex.P-1), F.I.R. {Ex.P-1 (A)}, inquest (Ex.P-11), autopsy report (Ex.P-14) which reveal that the injuries mentioned in para 4 of this judgment were found over the body of Suryakant and cause of death was coma as a result of head injury, compression of larynx & trachea, breaking of larynx cartilage and fracture of hyoid bone. 15. In order to establish the complicity of the appellants in the crime in question, we have scrutinized the evidence. 15. In order to establish the complicity of the appellants in the crime in question, we have scrutinized the evidence. Case of the prosecution rests on the evidence of the eyewitnesses and the medical evidence. 16. Ramlal (PW -1) has deposed that on the fateful day at about 9 p.m., he was present in appellant No.1 Lakhan's hotel, deceased Suryakant and another person namely, Mishra, the teacher, were sitting inside the hotel, teacher Mishra asked liquor from Lakhan whereupon Lakhan provided liquor to them, thereafter, he along with the deceased & Mishra consumed liquor. Thereafter, they demanded meat and after eating meat when appellant Lakhan asked for payment, Mishra told him that they will pay money tomorrow on which some altercation took place and Mishra caught hold of the collar of appellant Lakhan which was intercepted by him and deceased Suryakant and thereafter, again some altercation took place. Ramlal (PW -1) has further deposed that the deceased abused and inflicted injury on appellant Lakhan and appellant Lakhan also picked up the wooden plank and inflicted injury over the head of the deceased. Lakhan and the deceased went 10-15 ft. forward where the deceased fell down. Appellant No.2 Dhurau was holding iron rod and appellant No.3 Jeevan was holding torch. Dhurau pressed the neck of the deceased with iron rod and Lakhan assaulted the deceased with stick 5-6 times. The accused/appellants tried to assault Mishra also, but Mishra ran away from the spot on which they chased Mishra, Mishra fell down and the appellants assaulted him. After the incident, teacher Mishra fled away from the spot and the accused persons also fled away from the spot. Finally Suryakant succumbed to the injuries sustained by him. 17. Rajesh Kumar (PW -4) has corroborated the testimony of Ramlal (PW-1) and deposed that during the course of quarrel, deceased Suryakant fell down, even thereafter, Lakhan assaulted him with stick and Dhurau pressed his neck with rod. 18. Defence has cross-examined Ramlal (PW -1) & Rajesh Kumar (PW4) in detail. In para 10 of his cross-examination, Ramlal (PW -1) has stated that Lakhan has not inflicted injury on deceased Suryakant for saving himself. Ramlal (PW -1) has specifically deposed that as a result of injury the deceased fell down, even then also Lakhan assaulted him with stick. 18. Defence has cross-examined Ramlal (PW -1) & Rajesh Kumar (PW4) in detail. In para 10 of his cross-examination, Ramlal (PW -1) has stated that Lakhan has not inflicted injury on deceased Suryakant for saving himself. Ramlal (PW -1) has specifically deposed that as a result of injury the deceased fell down, even then also Lakhan assaulted him with stick. Rajesh Kumar (PW -4) has denied the suggestion in para 7 that after falling down of the deceased the accused persons have not assaulted him. Both the witnesses were present at the time of incident and they have stated about the incident in detail. Evidence of both these witnesses shows that both the parties quarrelled and caused injuries to each other. Deceased party & the deceased had consumed liquor. The deceased fell down as a result of the head injury and when he fell down the accused persons assaulted him and pressed his neck with rod. Dr. K.L. Gopawar (PW -8) had conducted autopsy on the dead body of the deceased and found head injury including fracture of from to parietal bone, fracture of hyoid bone, breaking of larynx and compression of larynx & trachea. 19. Ramlal (PW-1) has lodged the report within 4½ hours of the incident vide EX.P-1 in which it has been mentioned that when the deceased fell down, even then, the appellants assaulted him with stick, pipe, rod, hands & fists. 20. In the present case, as held by the Apex Court in the matters of Deo Narain4 & Seriyal5 (supra), exercise of the right of private defence to cause injury to the deceased was available to the appellants during the quarrel when both the parties were quarreling with each other and receiving of actual injury was not necessary. In case of the right of private defence, no specific plea of the right of private defence is necessary, it can be inferred on the basis of the manner in which the incident had taken place. In case of the right of private defence, no specific plea of the right of private defence is necessary, it can be inferred on the basis of the manner in which the incident had taken place. Evidence of both the eyewitnesses Ramlal (PW -1) & Rajesh Kumar (PW -4) reveals that the right of private defence was available to the appellants during the course of quarrel but when the deceased fell down as a result of serious head injury including fracture of temporal & from to parietal bones, the deceased was not in a position to inflict any injury to the appellants, and at that time, apprehension of danger came to an end was not existing in favour of the appellants for exercising the right of private defence and clang injury to the deceased. Virtually when the deceased fell down as a result of serious head injury, he was helpless and was not in a position to inflict any injury to the appellants. However, the appellants have not caused only simple injury to the deceased but they caused grievous injuries by pressing neck with iron rod/ pipe resulting into fracture of hyoid bone, breaking of larynx and compression of larynx & trachea which alone was sufficient for causing death by respiratory obstruction. After inflicting injuries to the deceased the appellants tried to cause injury to another person i.e. teacher Mishra and they chased Mishra which shows their intention. 21. In the matter of Anmol Singh1 (supra), the Apex Court has held that in case of difference between F.I.R. and Court version of the sole eyewitness the evidence of such witness is not reliable. In the present case, two persons viz., Ramlal (PW -1) & Rajesh Kumar (PW -4) have seen the incident., There is improvement in their evidence before the Court & F.I.R. but such improvement is not of substantial nature especially relating to causing fatal injury by the appellants over the neck of the deceased when the deceased fell down and was not in a position to attack. Therefore, the case of Anmol Singh1 (supra) is distinguishable on facts to that of the present case. 22. Therefore, the case of Anmol Singh1 (supra) is distinguishable on facts to that of the present case. 22. In the matter of Gopal2 (supra), the Apex Court has held that more injuries to the accused persons support the case of defence that they have caused injury to the deceased in defence of their person when they had been attacked by the complainant party. Evidence of the eyewitnesses reveals that appellant No.1 Lakhan also received injury at the time of first part of the incident, but Lakhan has not adduced any evidence to show that how many injuries he has received, even he has not stated in his examination under Section 313 of the Cr.P.C. about the number & nature of injuries. Appellant No.1 Lakhan has not received injury after falling down of the deceased. In absence of any material, it is difficult to hold that the accused party has received more injuries. The case of Gopal2 (supra) is also distinguishable on facts to that of the present case. 23. In the present case, there is no discrepancy as to the actual incident. In the present case, the defence of right of private defence available under Sections 97 to 101 of the LP.C. was available to the appellants during first part of the incident, but when the deceased fell down as a result of serious injuries inflicted over his head, he became helpless and was not in a position to cause any injury to any person, then the apprehension of danger came to an end, therefore, the defence of right of private defence of person was not available to the appellants at the time of commission of second part of the incident. 24. As regards the question of causing homicidal death amounting to murder, pressing of neck by dangerous weapon like iron pipe, breaking of larynx, causing fracture of hyoid bone and fracture of scalp are sufficient for drawing inference that the appellants have caused the homicidal death of deceased Suryakant amounting to murder. 25. Learned Additional Sessions Judge has convicted the appellants with the aid of Section 34 of the I.P.C. for causing the homicidal death of the deceased amounting to murder. 26. In the matter of Jdrish6 (supra), the Apex Court has held that in absence of any pre-planning, sharing of common intention is not possible. 25. Learned Additional Sessions Judge has convicted the appellants with the aid of Section 34 of the I.P.C. for causing the homicidal death of the deceased amounting to murder. 26. In the matter of Jdrish6 (supra), the Apex Court has held that in absence of any pre-planning, sharing of common intention is not possible. In the present case, all the accused persons have been convicted under Section 302 read with Section 34 of the LP.C. Evidence adduced on behalf of the prosecution reveals that all the three accused/appellants have participated in causing injuries to the deceased when he fell down. Specific role attributed to them has been stated by the eyewitnesses in their evidence. Causing injuries to the deceased by all the three accused/appellants when the deceased fell down and he was not in a position to attack, that too the fatal injuries, shows sharing of common intention of the accused persons. 27. While dealing with the question of common intention, the Apex Court in the matter of Yallappa Vs. State7 has held that common intention can generate on the spot itself and such common intention can be reasonably inferred from the facts and circumstances of the case and nature of injuries caused by the accused. While dealing with the same question, the Apex Court in the matter of Pulla Reddy Vs. State8 has held that in case of common intention no specific injury by all accused is necessary. 7. (1994) I SCC 730 28. Causing injury by three persons when the deceased fell down, that too fatal in nature and presence of all the accused persons near the deceased at the time of causing injury are sufficient for drawing inference that all the accused/appellants have caused homicidal death of the deceased in sharing of their common intention. Intention or motive of the accused can be inferred on the basis of the injuries caused, part of the body chosen by the accused and the weapon used. 29. After appreciating the evidence available on record, learned Additional Sessions Judge has convicted & sentenced the appellants under Section 302 read with Section 34 of the LP.C. Conviction & sentence of the appellants are based on credible and clinching evidence sustainable under the law. The Court below has not committed any illegality or irregularity in convicting & sentencing the appellants. 30. The Court below has not committed any illegality or irregularity in convicting & sentencing the appellants. 30. For the foregoing reasons, we are of the considered view that the Court below has rightly convicted & sentenced the appellants under Section 302 read with Section 34 of the LP.C. The appeal is devoid of merit, the same is liable to be dismissed and it is hereby dismissed. 31. Appellant No.2 Dhurau has served out the sentence imposed upon him. Appellants No.1 & 3 shall surrender themselves before the Chief Judicial Magistrate, Raipur immediately for serving the remaining sentence imposed upon them. Appeal Dismissed.