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2010 DIGILAW 453 (MP)

Deva v. State of M. P.

2010-04-20

A.K.SHRIVASTAVA, INDRANI DATTA

body2010
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 7th August, 2002 passed by learned Third Additional Sessions Judge (Fast-Track), Guna, in Sessions Trial No.316/ 2000 convicting appellants under section 147, 148, 302/149, 307/149, 324/149 and 323/149 of IPC and thereby sentencing them to suffer imprisonment as mentioned in the impugned judgment, this appeal has been preferred by the appellants under section 374(2) of the Code of Criminal Procedure, 1973. 2. In brief the case of prosecution is that in the night of 13th December, 1999 a programme of Ratri Jagran (singing Bhajans throughout the night) was going on in the house of one Bheema in which Balu son of Deepak, Narayan, Balla, Ghasi, Bhawarlal, Gappa, Karansingh, etc. were offering their prayer. At that juncture, the wife of Balu alias Balla namely Bhulibai was all alone in her house. At near about 9 p.m. some hue and cry as heard by these persons which was coming towards the house of Balu alias Balla, as a result of which, he (Balu alias Balla) went to his home where he found that appellant-Babu was caught hold by his wife Bhulibai and it was told by his wife Bhulibai that appellant Babu was trying to outrage her modesty. However, appellant Babu managed to escape from the grip of the wife of Balu alias Balla and thereafter he again arrived at the house of this couple alongwith other appellants. It is said that Babu was carrying a Ballam, Deva and Jiya Lathis, Kalu Farsa and Hajari was carrying a Ballam. In between, Narayan (hereinafter referred to as the deceased) and another Balla son of Mansingh also arrived there. It is said that Hajari dealt Ballam blow to Balla son of Mansingh on his rib region and the other accused persons also started causing injuries. On hearing hue and cry, Ghasi, Gabba alias Gappa and Bhanwarlal etc. also arrived at the spot and these persons were also assaulted by the appellants by Ballam, Farsa and Lathi. It is said that appellant Babu dealt Ballam blow which landed on the rib region of the deceased. After causing the injuries, all the accused persons fled from the place of occurrence. 3. also arrived at the spot and these persons were also assaulted by the appellants by Ballam, Farsa and Lathi. It is said that appellant Babu dealt Ballam blow which landed on the rib region of the deceased. After causing the injuries, all the accused persons fled from the place of occurrence. 3. After the departure of appellants, all the injured persons including the deceased were brought to Police Station, Raghogarh, in a tractor, where Balu alias Balla son of Deepak (PW 10) lodged the first information report. Since the deceased was alive at that juncture, the report was registered under section 307/149 of IPC. 4. The investigating agency sent the deceased, who was alive, and all other injured persons to the hospital for treatment, however, the deceased could not survive and died while undergoing the medical treatment. On the death of the deceased, the case was altered and registered under section 302/149 of IPC. 5. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session and from where it was received by the trial Court for the trial. 6. The learned trial Judge framed charges punishable under sections 147, 148,302,302/149,307,307/149,323/149,324/149 of IPC against the appellants which they denied and requested for the trial. 7. In order to bring home the charges, prosecution examined as many as 27 witnesses and placed EX.P-1 to P-33, the documents on record. The defence of appellants is of false implication which they also set forth in their statement recorded under section 313 CrPC, but they did not choose to examine any witness in support of their defence. 8. The learned trial Judge on the bas, is of evidence placed on record, came to hold that charges under sections 147, 148, 302/149, 307/149, 324/149 and 323/149 of IPC are proved against the appellants, as a result of which, convicted them and passed different types of sentences for each offence as mentioned in the impugned judgment. 9. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 10. The contention of Shri Garg, learned counsel for the appellants, is that learned trial Court erred in placing reliance on the testimony of eyewitnesses. 9. In this manner, this appeal has been filed by the appellants assailing their judgment of conviction and order of sentence. 10. The contention of Shri Garg, learned counsel for the appellants, is that learned trial Court erred in placing reliance on the testimony of eyewitnesses. According to him, the witnesses are not at all reliable and if that is the position, learned trial Court erred in convicting the appellants. 11. An alternative submission has also been put forth by learned counsel for the appellants that looking to the genesis of occurrence, since the appellants came to the house of Balu alias Balla son of Deepak to cause injuries to him and in between the deceased had come to whom a single blow of Ballam was dealt by appellant No.3-Babu, the case would not at all rest under section 302/149 of IPC against other appellants except appellant Babu, it has also been put forth by him that since deceased Narayan came to intervene and there was no previous enmity between him and appellant-Babu and the incident had occurred all of a sudden without any pre-meditation, therefore, the case of appellant-Babu would come within the ambit and sphere of section 304 Part I of IPC. By inviting our attention to the testimony of Balla son of Mansingh (PW 21), it is said that injuries were caused to him by appellant-Hajari and the injuries are simple in nature; therefore, it cannot be said that all other appellants were having common object to make attempt to commit murder of injured Balla son of Mansingh (PW21), and therefore, all other appellants except appellant Hajari, cannot be convicted with the aid of section 149 of IPC. It has also been propounded by learned counsel that because the injuries to Balla is simple in nature, therefore, appellant Hajari did not commit any offence under section 307 of IPC and at the most, he can be convicted under section 324 of IPC. On these premised submissions, it has been submitted by learned counsel that this appeal be allowed by setting aside the impugned judgment and all the appellants be acquitted. 12. On the other hand, Shri. Gupta, learned Public Prosecutor, has argued in support of the impugned judgment. 13. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 14. 12. On the other hand, Shri. Gupta, learned Public Prosecutor, has argued in support of the impugned judgment. 13. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 14. The genesis of occurrence started when the injured persons were offering their prayer in Ratri Jagran in the house of Bheema. At that juncture, author of the FIR Balu alias Balla son of Deepak heard hue and cry coming from his house, as a result of which, in the midst of Ratri Jagran, he left that place and came to his house, where he saw that appellant No.3 Babu was caught hold by his wife Bhulibai (PW26). 15. On scanning the testimony of Bhulibai (PW26), we find• hat very specifically she has stated that when she was alone in her house, appellant Babu entered in her house by keeping vile, lascivious and lustful idea in his mind to establish some illicit relations with her and when he expressed those vile ideas and tried to outrage her modesty, she did not permit appellant Babu to do so and started screaming. She has further stated that she caught hold of appellant Babu till the arrival of her husband Balu alias Balla (PW 10). But, any how at that juncture, appellant Babu managed to escape from her grip and fled from that place. On going through the FIR (Ex.P-23) as well as the statement of author of the FIR Balu alias Balla son of Deepak (PW 10), who is the husband of Bhulibai, we find entire corroboration of the statement of Bhulibai and further we find that according to the author of the FIR after some duration of time, appellant Babu came alongwith other appellants and all of them were armed with Farsa, Lathi and Ballam. Specifically, Balu alias Balla is deposing that when hue and cry took place again between him and the appellants, Balla son of Mansingh and deceased Narayan also came at his house. According to this witness, appellant Hajari dealt Ballam blow to Balla son of Mansingh (PW21) which landed on his rib region and blood started oozing from the wound and the said Balla became seriously injured. According to this witness, appellant Hajari dealt Ballam blow to Balla son of Mansingh (PW21) which landed on his rib region and blood started oozing from the wound and the said Balla became seriously injured. Thereafter, appellant Babu dealt Ballam blow on the person of deceased Narayan which also landed on the rib region and thereafter appellant liya dealt Lathi blow to this witness (PW 10) on his head and blood staged oozing from the wound. Another blow of Lathi was given by appellant liya which landed on his left hand. On hearing hue and cry, Ghasi, Gabba and Bhawarlal, etc. arrived there and they also intervened, but they were also assaulted by the appellants. Specifically, this witness is saying that Karansingh was witnessing the incident and after causing injuries to this witness and other injured persons, appellant fled from the place of occurrence. 16. Thereafter, this witness (PW10) brought a tractor in which all the persons including the deceased, who was alive, sat and all of them went to Police Station, Raghogarh, where this witness lodged first information report (Ex.P-23). This witness has also proved the FIR. The author of the FIR Balu alias Balla was cross-examined at length, but he remained embedded in his version despite their bring a roving cross-examining on him. Nothing has been carved out from his testimony in order to hold that appellants are innocent. 17. The evidence of author of the FIR Balu alias Balla (PW10) has been corroborated by the evidence of Gabba (PW 17), Ghasi (PW18), Harji (PW19), Bhanwarlal (PW20), Balla (PW21) and Karansingh (PW24). 18. On going through the evidence of MLC Dr. A.K. Ojha (PW 1), this Court finds that the deceased sustained following injuries when he was examined by this doctor: "1. incised wound size 7 cm x 5 cm x muscle deep at right chest lateral on sixth lower aspect. Bleeding profusely. Advised for x-ray; 2. swelling size 10 cm x 8 cm in left side of abdomen. Advisee for x-ray." On going through the evidence of autopsy surgeon Dr. Shivram Singh Raghuwanshi PW4) as well as his post-mortem report (Ex.P-10 we find that deceased sustained following injuries: "1. contusion left side of abdomen 1 0 cm x 8 cm; 2. stitched wound at right lower chest laterally 8 cm in length. Advisee for x-ray." On going through the evidence of autopsy surgeon Dr. Shivram Singh Raghuwanshi PW4) as well as his post-mortem report (Ex.P-10 we find that deceased sustained following injuries: "1. contusion left side of abdomen 1 0 cm x 8 cm; 2. stitched wound at right lower chest laterally 8 cm in length. On dissection perforating injury dissected downward and medially reaching upto liver cutting 8th and 9th rib, intercostal structures, muscle pleura, diaphragam and peritoneum with an incised wound 3 cm x 1 cm x 1 cm over upper surface of liver. Pleural cavity and abdominal cavity full of blood." According to autopsy surgeon, the deceased had died on account of hemorrhagic shock due to injury to vital organ liver. On going through the evidence of all the eye-witnesses including the injured persons, this Court finds that causing injury to the deceased by Ballam has been attributed only to appellant No.3 Babu. It is also borne out from the evidence that the appellants were altercating and were exchanging hot talks with Babu alias Balla and at that juncture when deceased Narayan carne there to get the matter settled, Ballam blow was dealt by appellant No.3 Babu to him and hence according to us, in absence of any evidence to the contrary, it cannot be said that other appellants shared the common object with appellant Babu to kill the deceased and therefore, according to us, the conviction of other appellants except appellant Babu under section 302/ 149 of IPC cannot be sustained. Their conviction under this section is accordingly set aside and they are acquitted from the said charge. 19. Mr. Justice Brennan has said: "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down." In the words of Mr. Their conviction under this section is accordingly set aside and they are acquitted from the said charge. 19. Mr. Justice Brennan has said: "Nothing rankles more in the human heart than a brooding sense of injustice. Illness we can put up with. But injustice makes us want to pull things down." In the words of Mr. William Watson: "Let the justice be done, though the heavens fall." According to Adam L. Gordon: "Life is mostly forth and bubble, two things stand like stone kindness in another's trouble, courage in our own." If the fact and evidence of the present case is perused, we are bound to accord our verdict that still the humble citizens for this country are following the prayer: ^^Roga dke;s jkT;a u LoxZ ukiquHkZoe~A dke;s nq%[krIrkuka izkf.kukekfrZ uk’kue~AA** "No Tawaham Kamaye Rajyam Na Swargam Napunarb awam Kamaye Dukhtaptanam Praninamarti Nashanam." Indeed, the deceased came for intervention as his conscience was knocked by the humanity and in order to help and to eradicate the agony and the trauma which the wife of Balu alias Balla son of Deepak was facing and in that intervention, Babu dealt a Ballam blow on him. However, there is nothing in the evidence of eye-witnesses and the injured witnesses that there was any previous enmity of appellant Babu with deceased Narayan and because the incident had occurred all of a sudden in a spur of moment, according to us, the act of appellant Babu would come within the scope of exception 4 to section 300 of IPC and hence the act of appellant Babu would fall within the sphere of section 304 Part I of IPC. The conviction of appellant No.3-Babu hence altered from section 302/149 of IPC to section 304 Part I of IPC and he is hereby directed to suffer 10 years RI and fine as imposed by learned trial Court with the defaulting clause as imposed by learned trial Court. 20. Now we shall consider whether charge under section 307/149 of IPC is proved against the appellants or not. The relevant injured witness is Balla son of Mansingh (PW21). 20. Now we shall consider whether charge under section 307/149 of IPC is proved against the appellants or not. The relevant injured witness is Balla son of Mansingh (PW21). On scanning the testimony of this witness, we find that this witness was also attributing his offer in the Ratri Jagran and he saw that in the midst Balvalias Balla had gone to his house and this witness alongwith the deceased also came to his house where he saw that appellant Babu was coming out from his house and was running away. Thereafter, Babu came again with all other accused persons and they were armed with Lathi, Ballam' and Farsa, and started causing injuries to Balu alias Balla (PW10). Further, he has stated that appellant Hajari dealt one Ballam blow to him which landed on his right rib region and the injury was through and through. Learned trial Court also noticed the said injuries and found the scar of stitches on the person of this witness. At this juncture, we would like to go through the testimony of MLC Dr. A.K. Ojha (PW 1) and the MLC report of this injured which is EX.P-1. According to MLC doctor, this Balla son of Mansingh (PW21) sustained following injuries: "1. Incised wound size 6 cm x 4 cm x 5 cm deep over right anterior chest wall just interior to right nipple. Bleeding present. Injury was advised for x-ray; 2. incised wound size 3 cm x 2 cm x 2 cm over left lateral 1/3rd of chest. Bleeding present. Injury was advised for x-ray." Although Balla (PW21) was referred for x-ray examination, but no fracture was found on his person. The x-ray report of Balla (PW21) is EX.P-28. 21. On scanning the evidence of all the injured witnesses as well as Karansingh (PW24), we find that all the appellants came to cause injuries to Balu alias Balla (PW 10), and therefore, it cannot be said that they shared common object to make any attempt to commit murder of Balla (PW21) and hence except appellant Hajari, all other appellants have not committed the offence under section 307/149 of IPC and they are acquitted from the said charge. But looking to the role of appellant Hajari as he caused Ballam injury on the chest region of Balla (PW21), which is a vital part of the body, according to us, his act would come within the sphere of section 307 of IPC. The conviction of this appellant Hajari is altered from section 307/149 to section 307 of IPC. However, looking to the nature of the injuries, we hereby reduce the sentence from 7 years RI to 5 years RI without interfering in the quantum of fine as imposed by learned trial Court. 22. Looking to the injuries sustained by injured persons as well as their corresponding reports, we find that learned trial Court did not commit any error in convicting the appellants under sections 324/149 and 323/ 149 as well as under section 147 and 148 of IPC. Their conviction and sentence as imposed by learned trial Court under these sections is hereby affirmed. 23. Resultantly, this appeal succeeds in part and the appellants are convicted and sentenced in following manner: 1. For appellant No.3 Babu : (A) Convicted under section 304 Part I of IPC and sentenced to 10 years RI with fine as imposed by learned trial Court. (B) Convicted under sections 324/149, 323/149, 147 and 148 of IPC and sentenced to suffer imprisonment and fine as imposed by learned trial Court. 2. For appellant No.5 Hajari : (A) Convicted under section 307 of IPC and sentenced to 5 years RI with fine as imposed by learned trial Court. (B) Convicted under section 324/149, 32 3/149, 147 and 148 of IPC and sentenced to suffer imprisonment and fine as imposed by learned trial Court. 3. Fro appellants No.1, 2 and 4, namely Deva, Kalu and Jiya : (a) Under section 324/149, 323/149, 147 and 148 of IPC and sentenced to suffer imprisonment and fine as imposed by learned trial Court. Needless to say, all the sentences shall run concurrently. Appellants Deva, Kalu and Jiya have already suffered the jail sentence for more than two years and they are on bail. They need not to surrender and their bail bonds are discharged. Needless to say, all the sentences shall run concurrently. Appellants Deva, Kalu and Jiya have already suffered the jail sentence for more than two years and they are on bail. They need not to surrender and their bail bonds are discharged. Appellant No.5-Hajari is on bail, his bail bonds' shall stand cancelled after he surrenders in the trial Court on or before 10th May, 2010, failing which learned trial Court shall issue arrest warrant against this appellant and shall also issue notice to his surety and pass necessary orders against the surety and the appellant. If, however, appellant No.5-Hajari surrenders on or before 10th May, 2010 before learned trial Court, his bail bonds shall stand cancelled. The Registry is hereby directed to send the record of learned trial Court posthaste so as to reach that Court much prior to 10th May, 2010.