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Madhya Pradesh High Court · body

2012 DIGILAW 262 (MP)

Dhansampat v. State of M. P

2012-03-01

M.A.SIDDIQUI, RAKESH SAKSENA

body2012
JUDGMENT : Asper Rakesh Saksena , J . : - Appellantshave filed this appeal against the judgment dated 29-11-2008 passed byAdditional Sessions Judge in Sessions Trial No. 113/2008, convicting them underSections 302/149 and 147 of the Indian Penal Code and sentencing them toimprisonment for life with fine of Rs . 500/- andrigorous imprisonment for one year, on each count respectively. 2.In short, the prosecution case is that on 1-7-2008 , in Village Kukariya Raiyat , at about 7-8 a.m. , Kotwar Anup Das informed to residents of village to attend a meeting in' Badi ' of Laman Singh. Allthe residents of village including women and children assembled there at about 10-11 a.m. and meeting started. Complainant Dhan Singh, his brother Moolchand and mother Bajrahin Bai were also present there. In the meeting, accused Dhansampat Singh told to people that Bajrahin Bai , Hansi Bai , Mangli Bai and Ahiran Bai were witches and theywere harassing the inhabitants of village of their witchcraft due to whichpeople were falling ill. He asked to aforesaid women to tell as to disclosetheir goddess. People present in the meeting got excited and asked them thatthere should be no mis -happening in the village andthey should refrain from devouring people. In the meantime, number of peopleincluding appellants started beating Hansi Bai , Mangli Bai , Ahiran Bai and Bajrahin Bai with fists andkicks. Somehow Hansi Bai , Mangli Bai and Ahiran Bai escaped and ran away,but appellants bent upon beating Bajrahin Bai with intent to kill her. As a result of assault, Bajrahin Bai suffered injuries onher face, eyes and other parts of the body. Some persons intervened and triedto pacify assailants. Dhan Singh rescued Bajrahin Bai and took her home.At about 5 o'clock in the evening,however, Bajrahin Bai succumbed to her injuries. 3. Dhan Singh went to Police Station, Bajag and lodged the report ( Exh .P-1), at 11.30 p.m. Policeregistered an offence under Sections 147 and 302/149 of the Indian Penal codeagainst the accused persons and reached the spot. Investigating Officer Bhagat Singh (P.W. 14) in the presence of Dhan Singh (P.W. 1) and Moolchand (P.W. 2) conducted inquest proceedings and recorded memorandum ( Exh . P-4). Me sent the body of Bajrahin Bai for post-mortem examination to Community Health Centre, Bajag .Dr. P.C. Verma (P.W. 13) conducted post-mortemexamination and found four injuries caused by hard and blunt object on the body. P-4). Me sent the body of Bajrahin Bai for post-mortem examination to Community Health Centre, Bajag .Dr. P.C. Verma (P.W. 13) conducted post-mortemexamination and found four injuries caused by hard and blunt object on the body. There was no fracture of any bone. In hisopinion, death of deceased was caused due to shock haemorrhage and pneumonia as the deceased was old, weak and emaciated woman. 4.After requisite investigation, charge-sheet was filed and the case wascommitted for trial. 5.On charges being framed, appellants abjured their guilt and pleaded falseimplication. According to them, deceased and her family members practiced blackmagic, therefore, they were denounced. Deceased had died of illness, but falseallegation of assault was made against them. It was also suggested incross-examination of some of the witnesses that the son of deceased killed herand levelled false accusation against the appellants. 6.Prosecution, to prove its case examined 14 witnesses, however, relying on theevidence of eye witnesses, viz., Dhansingh (P.W. 1), Moolchand (P.W. 2), Mangli Bai (P.W. 4), Hansi Bai (P.W. 5), Ahiran Bai (P.W. 6) and on the medical evidence of Dr. P.C. Verma (P.W. 13) held the appellants guilty of the charges,convicted and sentenced them as mentioned above. 7.Learned Counsel for the appellants did not assail the finding recorded by theCourt below that appellants, in a mob, assaulted deceased as a result of which,she died. However, he submitted that in the facts and circumstances of thecase, conviction of appellants under Section 302/149 of the Indian Penal Codewas not justified. Since, the incident occurred suddenly in a mob whenallegations were being made against the deceased and other women that theypracticed witchcraft which engulfed number of residents of village and that noweapon was used in the assault, Court below committed error in holding thatappellants intended to commit murder of deceased. He submitted that deceasedwas an old and ill lady; she was suffering with pneumonia, therefore, merely bytrivial assault, she died. Appellants could have been held liable under Section323 of the Indian Penal Code or at the most under Section 304-II of the IndianPenal Code. Appellants were already in custody since 2-7-2008 . On the other hand, learned Counsel forthe State submitted that it was clearly established by the prosecution evidencethat appellants assaulted an old and frail woman of about 62 years of age, whowas suffering with pneumonia. Appellants were already in custody since 2-7-2008 . On the other hand, learned Counsel forthe State submitted that it was clearly established by the prosecution evidencethat appellants assaulted an old and frail woman of about 62 years of age, whowas suffering with pneumonia. In such circumstances, learned Court below wasjustified to convict the appellants under Section 302/149 of the Indian Penal Code. 8.We have heard the learned Counsel for the parties and perused the impugnedjudgment and the evidence on record carefully. 9.It has not been disputed that Bajrahin Bai died on 1-7-2008 . Dhan Singh (P.W. 1), Moolchand (P.W. 2), Mangli Bai (P.W.4), Hansi Bai (P.W. 5) and Ahifan Bai (P.W. 6) categoricallystated that accused/appellants assaulted deceased with fists and kicks, as aresult of which, she suffered injuries and died. Report ( Exh .P-l) of the said incident, after the death of deceased was lodged by Dhan Singh (P.W. 1) at Police Station, Bajag .Sub Inspector Bhagat Singh (P.W. 14) recorded thesaid FIR and also a merg report ( Exh .P-2) and sent the body of deceased for post-mortem examination to CommunityHealth Centre, Bajag . He also recorded inquestmemorandum ( Exh . P-4) in front of witnessesindicating that deceased died due to beating. Dr. P.C. Verma (P.W. 13), who performed the post-mortem examination found following injurieson the body of deceased : - ( i ) Both eyes black; (ii)contusion/abrasion on forehead area, swelling present; (iii) contusion on left side of lower chest 3" x3" bluish in colour ; and (iv) contusion on right side of lower chest 3" x3" bluish in colour . Oninternal examination, doctor found that the deceased was an old, weak andemaciated woman. Bones of her skull were intact. Both the lungs had sign of pneumonitis . Inflammatory cough was present in thoraciccavity which was blood tinged. In his opinion, death was caused due to shock, haemorrhage and pneumonia. Multiple contusions present onthe body were caused by hard and blunt object. Patient was old, weak andemaciated. 10.From the above evidence, it is stood clearly established that deceased died dueto injuries found on her body. 11.The next question before us is whether appellants assaulted deceased due towhich she died. 12.From the evidence of complainant Dhan Singh (P.W. 1),it seems that on the day of occurrence at about 1.30 p.m. , accused persons called a meeting in the village. 11.The next question before us is whether appellants assaulted deceased due towhich she died. 12.From the evidence of complainant Dhan Singh (P.W. 1),it seems that on the day of occurrence at about 1.30 p.m. , accused persons called a meeting in the village. In themeeting, head of the village, viz., Mansingh , Tihari , Hari Singh, Bhagat Singh, Karan Singh, SunderSingh and some women were present. When he enquired from ' Mukhiya 'about the purpose for calling meeting, he informed that it was in respect ofthe witchcraft in the village. Deceased, Hansi Bai , Mangli Bai and Ahiran Bai were said tobe witches. People in the meeting told that if they did not renounce theirpowers, they would be punished. Though, some elders tried to intervene, butaccused persons did not yield to their request and started assaulting Hansi Bai , Mangli Bai and his mother Bajrahin Bai . Accused persons to whom he knew, assaulted hismother with fists due to which she suffered injuries. Hansi Bai and Mangli Bai ran away and saved themselves. He stated that he liftedand carried his mother to his house, but in the evening at 5.00-5.30 p.m. , she died. He then went to police stationand lodged the report ( Exh . P-1). Though, this witness was cross-examined at length, but nothing material couldbe elicited out to render his evidence unreliable. The evidence of Dhan Singh stood supported by Moolchand , Mangli Bai , Hansi Bai and Ahiran Bai , who reiterated the same story. Mangli Bai (P.W. 4) and Hansi Bai (P.W. 5) were alsoassaulted in the incident and were sent for medical examination throughrequisitions ( Exh . P-18 and Exh . P-19). They wereexamined by Dr. P.C. Verma (P.W. 13), but theirinjuries could not be proved in the Court since, Dr. Verma did not depose in respect of them in the Court. He confined his statement onlyin respect of injuries of deceased. Presence of these witnesses at the spot hasnot been challenged by appellants. Evidence of these witnesses finds furthersupported from the medical evidence of Dr. P.C. Verma (P.W. 13), who found four injuries on the body of deceased. According to Dr. Verma , injuries of deceased were caused by some hard andblunt object. 13.On appraisal of the evidence of aforesaid eye-witnesses, we find it establishedthat it were appellants, who assaulted deceased by fists due to which shesuffered injuries and died. P.C. Verma (P.W. 13), who found four injuries on the body of deceased. According to Dr. Verma , injuries of deceased were caused by some hard andblunt object. 13.On appraisal of the evidence of aforesaid eye-witnesses, we find it establishedthat it were appellants, who assaulted deceased by fists due to which shesuffered injuries and died. The finding recorded by the Court below in thisregard is, therefore, affirmed. 14.The next question for consideration before us is whether appellants wererightly convicted under Section 302/149 of the Indian Penal Code. 15.On perusal of the evidence of Dhan Singh (P.W. 1), Moolchand (P.W. 2), Mangli Bai (P.W. 4), Hansi Bai (P.W. 5) and Ahiran Bai (P.W. 6), it is revealed that since a long time numberof untimely deaths occurred in the village, people of the village suspectedthat deceased, Mangli Bai , Hansi Bai and Ahiran Bai practiced black magic or witchcraft and wereresponsible for the unfortunate deaths. When the meeting was called, underexcitement, appellants and some other persons indulged in beating all theaforesaid women. However, others, except the deceased ran away and got saved.When accusation was made against the daeased andother women, it was protested by Ahiran Bai and Hansi Bai ,but suddenly in commotion accused persons started beating them. Admittedly,accused persons had no weapons. They assaulted all the aforesaid women. It wasadmitted by Dhan Singh that different accusedassaulted different person separately. Learned Counsel for the appellantsargued that in such circumstances, it could not be presumed that appellantsintended to commit murder of deceased, therefore, the conviction of appellantsunder Section 302/149 of the Indian Penal Code was not justified. We findsubstance in the submissions of learned Counsel for the appellants. It isapparent that the incident occurred suddenly in a mob. Appellants did not useany weapon, they merely assaulted deceased with fists.Only four injuries were found on the body of deceased. There was no fracture orany kind of grievous hurt on the body of deceased. Dr. P.C. Verma painted out that the deceased was an old and frail woman and was also sufferingwith pneumonia. From his evidence, it appears that even by assault by fists andkicks she could have died. Under these circumstances, in our opinion, learnedCourt below committed error in holding that the intention of the appellants wasto cause death of deceased, therefore, the conviction of appellants under Section302/149 of the Indian Penal Code was not justified. However, from the evidenceof Dr. From his evidence, it appears that even by assault by fists andkicks she could have died. Under these circumstances, in our opinion, learnedCourt below committed error in holding that the intention of the appellants wasto cause death of deceased, therefore, the conviction of appellants under Section302/149 of the Indian Penal Code was not justified. However, from the evidenceof Dr. Verma , it has since been established thatdeceased was a thin, frail and emaciated old woman it could be inferred thatappellants knew that the assault on her by fists and kicks .was likely toresult in her death, therefore, in our opinion, it would be appropriate to holdthe appellants guilty of the offence under Section 304-II of the Indian PenalCode. 16.In view of the above discussion, conviction of appellants under Section 302/149of the Indian Penal Code is modified to one under Section 304-II/149 of theIndian Penal Code. They are sentenced to rigorous imprisonment for five years.They are also directed to deposit fine of Rs . 1,000/-in the Trial Court. In default of payment of fine, they shall undergo furtherrigorous imprisonment for a period of six months each. Conviction and sentenceunder Section 147 of the Indian Penal Code is affirmed. 17.Appeal partly allowed.