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2010 DIGILAW 27 (MP)

BABULAL s/o JAGGANNATH BALAR v. STATE OF M. P.

2010-01-07

S.K.SETH, S.L.KOCHAR

body2010
JUDGMENT : S. L. KOCHAR, J. 1. The appellant has filed the aforesaid appeal against the judgment and order of conviction and sentence dated 2-4-2004 passed by learned Additional Sessions Judge, Sonkuchh, District Dewas in S. T. No. 227 of 2003, by which the appellant stands convicted under section 302/149 of Indian Penal Code and sentenced to undergo life imprisonment and fine of Rs. 1000/-, under section 325/149 of Indian Penal Code sentenced to undergo two years' R.I. and fine of Rs. 500/-, under section 323/149 of Indian Penal Code (hereinafter referred to as IPC for short) and sentenced to undergo six months' R.I., under section 148 of Indian Penal Code and sentenced to undergo one year's R.I. and fine of Rs.200/- with defaulting clause of R.I. for one year, six months and three months respectively. The substantive jail sentences have been directed to run concurrently. 2. According to the prosecution case, the complainant - Meharban was serving under one Dhiraj Singh Rajput in village Ghatia Road and was residing with his family near the well. One day prior to the date of incident, i.e. on 7-6-2003, brother-in-laws of Meharban named Chainsingh and deceased Gangaram came to his house and in the night intervening 6th and 7th June, 2003, they were sleeping near the well after taking the night meal. At about 2 a.m. in the night, appellant along with 4-5 miscreants having 'lathi', 'fersi' and 'dharia', reached over there and assaulted them by their respective weapons. It is said that the complainant Meharban married his daughter with appellant and there was some dispute between them, because of which, she was residing with her parents and they performed her second marriage by way of 'Natra' marriage called in local parlance. In the Panchayat, the dispute was settled and Meharban was required to pay amount to the appellant - Babulal. The appellant - Babulal was not satisfied with the amount fixed. Appellant and his companions assaulted Meharban, Chainsingh, Gangaram and Leelabai w/o Meharban. In the Panchayat, the dispute was settled and Meharban was required to pay amount to the appellant - Babulal. The appellant - Babulal was not satisfied with the amount fixed. Appellant and his companions assaulted Meharban, Chainsingh, Gangaram and Leelabai w/o Meharban. In the morning, they came to the well of Sarvan Singh in the same village situated adjacent to the field of Dhirajsingh under whom the complainant was serving, they came to know that the appellant and his companions also gave beating to Puran Balai, his sister - Sampat Bai and Santosh in order to find out the whereabouts of complainant - Meharban with whom, he was having inimical term. All the injured persons were taken to the Police Station (PS) and PW-1 - Meharban lodged the report (Exhibit P/1) in the morning at 7 a.m. The injured persons were sent for medical examination and treatment and examined by PW-26 - Dr. Atul Pawnikar. While taking the injured persons to PS, Gangaram succumbed to the injuries sustained on his head. After recording first information report (FIR), Police reached on the spot and prepared spot map and on completion of an inquest enquiry, sent the dead body of Gangaram for post-mortem, which was conducted by PW-26 - Dr. Atul Pawnikar. The post-mortem report is Exhibit P/19. The appellant was arrested and at his instance, one 'fersi' was seized. The other accused persons were absconding, therefore charge-sheet was filed only against the appellant - Babulal. 3. Appellant denied the charges and his defence was that on the date of incident, he was sitting along with some persons in 'Geeta Bhawan' Colony, Dewas and he was falsely implicated by Meharban on account of inimical term. Appellant examined DW-1 - Dungarsingh Chouhan. 4. Learned trial Court after examining the prosecution and defence witnesses as well as hearing both the parties, found the prosecution case proved against the appellant and convicted and sentenced him, as mentioned hereinabove. 5. We have heard learned counsel for the parties and also perused the record carefully. 6. Learned counsel for the appellant has submitted that the statement of eye-witnesses cannot be relied upon because they have not given specific overt act of the appellant causing injury to the deceased and other injured persons. 5. We have heard learned counsel for the parties and also perused the record carefully. 6. Learned counsel for the appellant has submitted that the statement of eye-witnesses cannot be relied upon because they have not given specific overt act of the appellant causing injury to the deceased and other injured persons. It is also argued that even if complete prosecution case is accepted, the offence would not travel beyond section 304 Part 1 or Part 2 of the Indian Penal Code because the deceased sustained only one injury caused by sharp edged weapon. 7. In reply, learned counsel for the State has supported the impugned judgment and finding arrived at by learned trial Court. 8. Having heard learned counsel for the parties and after perusing the entire record carefully, we are of the view that there is no merit in this appeal. All the injured eye-witnesses - PW-1 - Meharban, PW-2 - Leelabai, PW-4 - Sampat Bai, PW-5 - Santosh and PW-12 - Chainsingh have deposed unequivocally that in the night, appellant reached to them along with other 4-5 persons and they were having 'lathi', 'fersi' and 'dharia' and other weapons and all assaulted them. It is also clear from their statements that appellant was having 'fersi' in his hand and used the same. In that hour of night at 2 a.m., when five or more than five persons reached at the house of complainant as well as at the well of PW-6 - Sarvan Singh, no other intention can be gathered than committing murder and also causing serious injuries to injured persons by them. Since, appellant was along with five or more than five persons who were having deadly weapons, it can be easily said that they all had formed unlawful assembly whose common object was to commit murder and in prosecution of their common object, they assaulted by various weapons to seven persons, out of which, Gangaram died just after the incident while taking to the PS because of head injury caused by sharp edged weapon, which is clear from medical evidence of PW-26 - Dr. Atul Pawnikar. PW-1 - Meharban sustained fracture of frontal bone and others have sustained simple injuries. 9. Atul Pawnikar. PW-1 - Meharban sustained fracture of frontal bone and others have sustained simple injuries. 9. Looking to the time, place and nature of incident, in our considered view, if specific overt act causing injury by appellant - Babulal to deceased - Gangaram, has not been stated by eye-witnesses, the same would not fragile prosecution case and the appellant - Babulal would be liable for the death of Gangaram with the aid of section 149 of Indian Penal Code. Learned counsel for the appellant has pointed out some omissions in FIR lodged by Meharban. We have perused the same and in our considered view, in FIR, Meharban has given reasonable details of the incident and it could not be expected from him under the circumstances when several persons were assaulting in the night to give extensive details of the incident in FIR. It is also to be noted that the incident occurred in the night at 2 a.m. when all the injured witnesses were sleeping. Under that circumstances, when they were beaten, it could not be possible for them to give specific overt act of each and every person who had taken part in the incident. It is clear from the statements of injured eye-witnesses that the appellant was having 'fersi' in his hand, a sharp edged weapon and the deceased sustained incised injury on head which could be caused by such weapon. Unlawful assembly is defined in section 141 of the Indian Penal Code, which reads as under :- "141. Unlawful assembly. It is clear from the statements of injured eye-witnesses that the appellant was having 'fersi' in his hand, a sharp edged weapon and the deceased sustained incised injury on head which could be caused by such weapon. Unlawful assembly is defined in section 141 of the Indian Penal Code, which reads as under :- "141. Unlawful assembly. - 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 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 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 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." It is clear from the evidence that appellant was in the company of five or more than five persons having deadly weapons for the purposes of commission of offence, therefore, he was member of an unlawful assembly as defined in Clause 3 of section 141, Indian Penal Code (supra). 10. Now, the question would be - Whether appellant is liable for conviction under section 302 of the Indian Penal Code with the aid of section 149 of Indian Penal Code? We have to see the provisions of section 149, Indian Penal Code, which is extracted hereinbelow :- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. We have to see the provisions of section 149, Indian Penal Code, which is extracted hereinbelow :- "149. Every member of unlawful assembly guilty of offence committed in prosecution of common object. - 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." On the basis of several injured eye-witnesses account, it is clear that the appellant was the member of unlawful assembly and they reached at the house of complainant - Meharban with deadly weapons and also assaulted them. Looking to all these facts, it can be gathered that common object of the unlawful assembly was to commit murder of complainant - Meharban with whom, appellant was having inimical term and in prosecution of the said common object, the members of unlawful assembly had assaulted Meharban and his other relatives, who were sleeping, which ultimately resulted into death of Gangaram. Therefore, learned trial Court has not committed any error in convicting the appellant under section 302 read with section 149 of Indian Penal Code and also under other penal sections for causing grievous and simple injuries to the witnesses and injured persons. [See (2009) 3 SCC (Cri.) 251, Kishanchand and others vs. State of U. P.] 11. When the unlawful assembly had an intention to commit murder of a particular person, but because of their act, some other person has died, even then, the member of unlawful assembly would be liable for the same offence for which section 301 of the Indian Penal Code is clear, which reads as under :- "301. Culpable homicide by causing death of person other than person whose death was intended. Culpable homicide by causing death of person other than person whose death was intended. - If a person, by doing anything which he intends or knows to be likely to cause death, commits culpable homicide by causing the death of any person, whose death he neither intends nor knows himself to be likely to cause, the culpable homicide committed by the offender is of the description of which it would have been if he had caused the death of the person whose death he intended or knew himself to be likely to cause." 12. We do not agree with the submission of learned counsel for the appellant that at the most, offence under section 304 Part 1 or Part 2 of the Indian Penal Code would be made out against the appellant. In view of the evidence of motive that the appellant was having inimical term with the complainant - Meharban on account of breaking up of marriage with his daughter and dispute regarding payment of money, the appellant was having motive and because of that, when he came with deadly weapon in the night and assaulted along with his companions on the persons who were sleeping, no other intention could be gathered than the intention to commit murder. 13. For the foregoing discussion, we do not find any merit and substance in this appeal, therefore, same is hereby dismissed.