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2014 DIGILAW 370 (CHH)

Ramferi v. State of M. P.

2014-10-28

NAVIN SINHA, PRITINKER DIWAKER

body2014
ORDER 1. These three appeals arises from common judgment of conviction dated 22.9.1999 passed by IVth Additional Sessions Judge, Bilaspur, Link Pendra Road in Sessions Trial No. 92/1997. Eleven persons were put on Trial. The five Appellants have been convicted under Sections 147 IPC to one months rigorous imprisonment each, to life imprisonment under Section 302/149 along with fine of Rs. 1000/- each failing which they would have to undergo further one year of rigorous imprisonment and to three months of rigorous imprisonment each under Section 323/149 IPC. The sentences have been directed to run concurrently. The appeals have thus been heard together and are being disposed by a common order. Appellants Radhelal, Mohanlal and Ramferi were granted bail earlier which was subsequently cancelled due to non-representation in the appeal and they have been taken into custody. The FIR, Exhibit P16 was lodged on 01/01/1997 at 09:30 a.m. by Bhikhari, PW 16, son of the deceased, Ram Ratan with regard to the assault on 31/12/1996. The injured was taken to the District Hospital, Bilaspur, and died on 3.1.1997 during course of treatment. Merg, Exhibit P 44 was recorded thereafter. The informant was an injured witness in the same assault. He stated that on 31/12/1996, the informant demanded arrears of Rs. 100 from Appellant-Radhelal who declined to pay the same and challenged the informant. The latter picked up the eggs from the cart of the Appellant and stated that he would return the same after the money was paid. Appellant- Radhelal then came to his house with the others and started abusing. The deceased came out and told the Appellants not to abuse. He was dragged by the Appellants and the Appellants- Kisimlal, Ramferi and Radhelal started to assault him with lathis. Sohra PW 8, Sudershan PW 11 and Narayan PW 9 reached the spot and were also assaulted with lathis. The informant was also assaulted and injured. The Appellants then left threatening that if the informant behaved in similar fashion again, they would be again beaten up. 2. The MLC report of the deceased, Exhibit P 12 mentions bleeding from the left ear and nose. The injuries were grievous and referred him to the District Hospital, Bilaspur, for X-ray of the skull. The X-ray report, Exhibit P5 by Dr. S. Chaterjee, PW 7 records no visible bone injury. The postmortem report of the deceased, Exhibit P7 conducted by Dr. The injuries were grievous and referred him to the District Hospital, Bilaspur, for X-ray of the skull. The X-ray report, Exhibit P5 by Dr. S. Chaterjee, PW 7 records no visible bone injury. The postmortem report of the deceased, Exhibit P7 conducted by Dr. Vijay Kumar Verma, PW 12 mentions diffused irregular contusion on the left and mid lower part of the skull, blackish in colour caused by hard arid blunt object. On dissection of the head, linear fracture of parietal and temporal bone of skull were noticed, antemortem in nature caused by hard and blunt object. 3. Learned counsel for the Appellants submitted that the occurrence was trivial in nature over a dispute for Rs. 100/-. The FIR itself makes it apparent that there was never any intention to cause death but only to teach a lesson. If the Appellants were armed with lathis and had intention to kill, nothing prevented them for making a more murderous assault rather than to cause one injury to the deceased and simple injuries to PW 8, PW 9, PW 11 and PW 16 as mentioned in their MLC reports, Exhibit P8, P9, P10 and P11 conducted by Dr. R. Mitra, PW 13. There was no repetition of assault on the deceased. Identification in the darkness of the night with no source of light was not possible. It was next submitted that the allegations of assault were omnibus with no specific attribution to any of the Appellants as the sole assailant of the deceased. In the circumstances, conviction under Section 302 with the aid of Section 147, 148 and 149 is unjustified and it ought to be under Section 325 of IPC. 4. Counsel for the State supporting the judgment under appeal submitted that the conviction called for no interference. The first assault on the deceased was by the five persons. Injury was caused on the head a sensitive part of the human body. PW 8, PW 9, PW 11 and PW 16 intervened and they were also assaulted. The evidentiary value of an injured witness carries greater credibility. The injury caused on the skull is not singular but suggests more than one assault on the head of a grievous nature. The Appellants can easily be attributed the knowledge that death would ensue by their assault. The evidentiary value of an injured witness carries greater credibility. The injury caused on the skull is not singular but suggests more than one assault on the head of a grievous nature. The Appellants can easily be attributed the knowledge that death would ensue by their assault. It was lastly submitted that if the charge was under Sections 147, 148 and 149 IPC presence would suffice and it is not necessary to identify the nature of the assault made by each to hold them guilty of a common object. 5. We have considered the submissions on behalf of the parties and perused the evidence on record. There is no dispute on behalf of the Appellants With regard to the assault by them on the deceased and the injured witnesses. The only question for our consideration is under which provision of law should they be convicted in the facts and circumstances of the case. 6. The entire genesis of the occurrence is a dispute with regard to Rs. 100/-. PW 16 walked away with the eggs of the Appellant Radhelal with the intention to return them after his money was paid. Undoubtedly, the Appellants came with lathis thereafter to the house of the deceased and assaulted. That would not be sufficient to infer that the common object of the Appellants at this time was to cause death and classify it as a premeditated attack. Whether the common object was to cause death or whether the object was only to teach a lesson has to be culled out from the facts of the case by examining the manner of occurrence, the weapons used, the nature of the assault and the conduct of the Appellants. All the attending circumstances will have to be seen. 7. In the facts of the present case, if the five Appellants were all armed I with lathis and there is nothing on record to suggest any resistance with lathis or any other instrument, nothing prevented the Appellants from beating severely not only the deceased but also PW 8, PW 9, PW 11 and PW 16 when they intervened. 7. In the facts of the present case, if the five Appellants were all armed I with lathis and there is nothing on record to suggest any resistance with lathis or any other instrument, nothing prevented the Appellants from beating severely not only the deceased but also PW 8, PW 9, PW 11 and PW 16 when they intervened. On the contrary, the assault on the deceased was singular and the injuries on the others simple in nature suggesting that the only purpose of assault was to create a fear so that they stayed away and did not challenge the authority of the Appellants who were peeved because PW 16 had walked away with the eggs. According to the evidence available, the deceased was assaulted in an omnibus manner leading to a linear injury on his head the dimensions of which have not been mentioned. It was of a nature that did not surface in the X-ray and could be discovered only when the skull was opened during postmortem. The aforesaid leads us to conclude that the assault made on the head of the deceased was not of such severity as to cause death much less the knowledge that the severity and intensity of assault was likely to cause death. The Appellants appear to have had no intention to kill but assault only to teach a lesson as otherwise there was no occasion for them to say they will come back to teach a lesson. It clearly evinces no desire to kill. PW 8 contrary to his statement under Section 161 Cr.P.C., in his deposition stated that Appellant Radhelal was armed with a lathi which had an iron tip. But Exhibit P18, the lathi seized on the confessional statement of Appellant - Radhelal did not have any iron tip. The accusation of assault against the Appellants by the injured witnesses is again general and omnibus in nature. Since the prosecution witnesses and Appellants were known to each other and resided across the road, the submission with regard to lack of light for identification was rightly rejected by the Trial Court. 8. In the facts and circumstances of the present case it can safely be said that the Appellants came back armed with lathis with the common object to teach a lesson and that the assault was made in persecution of that common object. 8. In the facts and circumstances of the present case it can safely be said that the Appellants came back armed with lathis with the common object to teach a lesson and that the assault was made in persecution of that common object. Their presence in the circumstances with lathis will suffice to infer common object when the allegations of assault are omnibus against all of them. There is no need to show the nature of assault made by them each individually to infer a common object. In Bhargavan v. State of Kerala, (2004)12 SCC 414 it was observed as follows:-- "13.... It cannot be laid down as a general proposition of law that unless an overt act is proved against a person, who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly. The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within the purview of Section 141. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all. In other words, the object should be common to the persons, who compose the assembly, that is to say, they should all be aware of it and concur with it. A common object may be formed by express agreement after mutual consultation, but that is by no means necessary. It may be formed at any stage by all or a few members of the assembly and the other members may just join and adopt it. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". 9. Once formed, it need not continue to be the same. It may be modified or altered or abandoned at any stage. The expression "in prosecution of common object" as appearing in Section 149 has to be strictly construed as equivalent to "in order to attain the common object". 9. Keeping in mind the nature of the omnibus assault attributed against the Appellants, the nature of injury to the deceased not discernable on x-ray but only upon opening the skull during postmortem, the injured witnesses having simple injuries, the FIR itself stating that the Appellants threatened that if they did not mend their ways the Appellants would come back to teach a lesson leads us to conclude that the Appellants neither had the intention or knowledge much less any common object to kill the deceased. We are therefore satisfied to hold that the" assault made by the Appellants on the deceased falls within the definition of grievous hurt under Sections 320 IPC "Seventhly" and they are liable to be punished under Section 325 for voluntarily causing grievous hurt as they were all members of an unlawful assembly armed with lathis and made omnibus assault. 10. The Appellants with the exception of Ramferi have undergone 7 years of custody and the latter approximately 3 years of custody. In the facts and circumstances of the case, we are satisfied to order that the period of custody undergone by them would constitute sufficient punishment for conviction under Section 325 IPC. The judgment of conviction under appeal is modified to that extent only from 302 IPC to 325/149 IPC. Appellants- Radhelal, Mohan Lal and Ramferi who are in custody are directed to be released forthwith, if not required in any other case. The other Appellants who are on bail are discharged from their bail bonds. The order for release of the Appellants shall be subject to the conditions laid down in Section 437-A Cr.P.C.