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Madhya Pradesh High Court · body

2016 DIGILAW 185 (MP)

Bhagwati v. State of M. P.

2016-03-02

J.K.JAIN, S.R.WAGHMARE

body2016
JUDGMENT Smt. Waghmare, J. -- 1. By this appeal under section 374 of the CrPC the appellants have challenged their conviction for offence under section 302 read with section 34 of the IPC and sentenced of life imprisonment each with fine of Rs.2000/- each; in case of default, they were further undergo the sentence of six months RI each. 2. Briefly stated the prosecution case is that deceased Radheshyam was going to his shop of Motor binding situated at Khachrod. When he was waiting for the Tempo at Panwasa Fanta, Batlawadi Road, then the accused Bhagwati and Arjun armed with iron rods and accused Deepak with lathi came there and started hurling verbal abuses at Radheshyam. They said that he was doing dadagiri and whistling. On being told not to do so by Radheshyam, accused Bhagwati and Arjun with the iron rods and Deepak with the lathi started assaulting him; as a result, Radheshyam received injuries on the head and on the right elbow, left shoulder, calves of both the legs and on the left ankle and other injuries. On hearing his shouts Jitendra (PW2), Yogesh (PW7) and Dharmendra (PW8) intervened and tried to save him. The accused while turning away threatened that this time he was saved but on the next occasion they would kill him. Taking the injured Radheshyam to Khachrod a report was filed at the P.S. Khachrod vide Ex.P-1 by Jitendra (PW2). After completing the medical examination X-ray was advised and he was sent to District Hospital at Ujjain. The MLC is Ex.P-17. Radheshyam succumbed to his injuries on the way at Ujjain and on the information given to the P.S. Kotwali, Ujjain vide Ex.P-20C by the compounder D.S. Parmar, the autopsy report and the inquest report were filed vide Exs.P-15 and P-16 and body was sent for post-mortem to District Hospital at Ujjain. Dr. Shyamlal Gupta (PW13) conducted the post-mortem and found four injuries which are as under : (1) Stitched wound over lt. Leg, size -5 cm long. (2) Stitched wound over Rt. Leg lower – Y3 on destiching fracture of Tibia and tibula was found. (3) Contusion over lt. side of chest at lateral aspect brownish black in colour 6 cm diameter fracture of 10th and 9th rib was found. (4) Contusion over lt. Knee size 3 cm blackish brown in colour. Leg, size -5 cm long. (2) Stitched wound over Rt. Leg lower – Y3 on destiching fracture of Tibia and tibula was found. (3) Contusion over lt. side of chest at lateral aspect brownish black in colour 6 cm diameter fracture of 10th and 9th rib was found. (4) Contusion over lt. Knee size 3 cm blackish brown in colour. And the doctor has stated that the injuries in the ordinary course of nature were sufficient to cause death and the postmortem report is Ex.P-19. The spot map is Ex.P-2. The blood and sample earth were collected vide Ex.P-12 and since Radheshyam belonged to the scheduled caste Bhambi, the caste certificate was seized and accused Deepak, Bhagwati and Arjun were arrested and the weapons were recovered. The query report of Dr. Mukesh Jain (PW12) who stated that by the same weapons the injuries could have occurred and the injury was caused to the vital organ and, therefore, death was caused. The accused were committed to their trial. The accused abjured their guilt and stated that they were falsely implicated in the matter. The Court examined as many as 17 witnesses i.e. PW1 to PW17 and documents vide Exs.P-1 to P-21 and defence documents Ex.D-1 to Ex.D-4. The accused stated in their defence that they belong to the congress party and Bhagwati Prasad who had contested the Janpad elections and was having political enmity with them and being father and son the accused had been falsely implicated. However, the trial Court on considering the evidence, convicted and sentenced the accused/appellants as hereinabove indicated and hence the present appeal. 3. Counsel for the appellants has vehemently urged the fact that there is no intention to cause the death of deceased Radheshyam and all the accused only wanted to chastise him which is very well indicated by the fact that after giving him a sound thrashing, they went away. Eye-witnesses Jitendra (PW2), Yogesh (PW7) and Dharmendra (PW8) stated that the accused had said when they were leaving him that he is only in an injured condition; and that they would kill him on the next occasion if he did not desist from his ways. Moreover they have not supported the prosecution case. The trial Court examined as many as 17 witnesses out of which Santosh Bai (PW1), Mohan Bai (PW5), Jitendra (PW2), Kailash (PW6), Yogesh (PW7), Dharmendra (PW8) and Ambaram (PW9) were eyewitnesses. Moreover they have not supported the prosecution case. The trial Court examined as many as 17 witnesses out of which Santosh Bai (PW1), Mohan Bai (PW5), Jitendra (PW2), Kailash (PW6), Yogesh (PW7), Dharmendra (PW8) and Ambaram (PW9) were eyewitnesses. However, Yogesh (PW7), Dharmendra (PW8) and Ambaram (PW9) had turned hostile in Court and not supported the prosecution case. 4. Counsel for the appellants urged that the MLC of Dr. Mukesh Jain (PW12) has found that only 4 injuries which are as under : (1) Lacerated wound 3" x 1" x bone deep on the right leg. Right leg was swollen and give pain on being pressed. (2) Lacerated wound 2" x 1" x bone deep on the left leg and the same inflammation was there and give pain on being pressed. (3) Right elbow was swollen and give pain. (4) The patient was complaining of pain in the waist and the head. And the doctor states that all the injuries had been caused by hard and blunt object within 24 hours and looking to the nature of the injuries, he was referred for x-ray to the District Hospital at Ujjain. This MLC report (Ex.P-17) clearly indicated that there was injuries only on the legs and which were on the non-vital part of the body. However, the post-mortem report of Dr. Shyamlal Gupta (PW13) who was performed on 7.9.2008 indicated that one stitched wound on the left leg 5 cm long, two stitched wound on the right leg and the lower right leg and both the bones have been broken and on the left side of the chest, there was a contusion of 6 cm and blackened and fracture of 10th and 9th rib was found. One contusion over lt. side of chest at lateral aspect brownish black in colour and on internal examination the doctor found that the spleen was lacerated in 3 places and ruptured there, sternum and peritoneal cavity was filled with four liters of blood. The cause of death given by this doctor was due to injury to vital organs like spleen, thus leading to heavy internal hemorrhage and mode of death was shock and in this light, Counsel submitted that the offence under section 302 of the IPC could not be made out, at the most the offence would fall into the category under section 304 Part II /34 of the IPC. 5. 5. Counsel placed reliance on the apex Court judgment in the matter of Prakash v. State of M.P. [(2008)1 SCC (Cri.) 101], where under similar circumstances, the apex Court had considered the ingredients of section 34 along with section 304 Part I and the appellant had given a blow to the running victim on the legs to stop him and when he fell down the other accused had caused injuries on the head and the apex Court held that in such circumstances conviction under section 304 Part I read with section 34 of the IPC calls for no interference and was justified. Counsel prayed that the sentence suitably be modified since at the most offence would fall under section 304 Part II read with section 34 of the IPC. 6. Per Contra, counsel for the respondent-State has vehemently urged the fact that there is no doubt about the implication of the accused since several eye-witnesses Jitendra (PW2), Yogesh (PW7) and Dharmendra (PW8) have supported the prosecution case and counsel submitted that the appellant No.1 Bhagwati and appellant No.2 Arjun were wielding the iron rod and appellant No.3 Deepak was wielding the lathi and assaulted the deceased Radheshyam and there is no doubt that the death was homicidal in nature. Besides the counsel for the appellants also has wrongfully alleged that the intention is said to be missing regarding causing of death. The accused were all armed with lethal weapons like iron rods and lathi and with intention to kill the deceased, they had assaulted deceased Radheshyam. Merely Jitendra (PW2), Yogesh (PW7) and Dharmendra (PW8) intervened, they could not finish their jobs and Counsel prayed that no sympathy be extended to the appellants. The judgment of the trial Court is in accordance with the provisions of law . The conviction and sentence were appropriate under the circumstances. Counsel prayed for dismissal of the appeal. 7. On considering the above submissions, considering the impugned judgment and the record, we find that a singular question that arises for consideration is whether the intention to cause the murder of Radheshyam can be extended to all the three accused in the light of the above mentioned circumstances. Counsel prayed for dismissal of the appeal. 7. On considering the above submissions, considering the impugned judgment and the record, we find that a singular question that arises for consideration is whether the intention to cause the murder of Radheshyam can be extended to all the three accused in the light of the above mentioned circumstances. Considering the fact that the medical evidence on record clearly indicated that only a single injury was there on the chest which caused the injury, then the facts and circumstances on record do not signify any intention on the part of the accused appellants to kill the deceased. It can be only gathered that there was political rivalry and the appellants wanted to chastise or teach a lesson to the victim and, therefore, although the medical evidence indicates that the death was homicidal in nature, it cannot be termed as culpable homicidal to murder on the basis of testimony of Jitendra (PW2), Yogesh (PW7) and Dharmendra (PW8). Similarly knowledge cannot be attributed to the accused primarily because the accused appellants No.1 and 2 came with iron rods and the appellant No.2 held a lathi. Then the offender was likely to know that in such iron rods and lathi, death of the person was likely to be caused, however since the accused only wanted to give a beating or chastisement as already noted above, and there was no intention to cause the death of Radheshyam but the act was done within the knowledge that it is likely to cause death and medical evidence indicates injuries on legs and non-vital part of the body. 8. And thus we find that reliance can be placed on a judgment of this Court in the matter of Tota v. State of M.P. [ 1994 JLJ 529 = 1995 MPLJ 393 ], whereby this Court has held thus : 4.........”In the matter of Karam Singh v. State of Punjab ( 1993 CrLJ 3673 ) (supra), Supreme Court observed that the contusions on the chest and injuries No.5 to 7 in the post-mortem examination report resulted in the fracture of the ribs which caused the death of the deceased the doctor in his evidence admitted that the fracture of the ribs could have in turn caused the rupture of the liver and the spleen. Under these circumstances, it is difficult to hold that the appellant intended to cause injuries to the liver and the spleen, which unfortunately proved to be fatal. In th said matter, Supreme Court further observed that having regard to the nature fo the weapon used and the parts of the body on which blows were dealt, it is difficult to hold that the appellant intended to cause the death or intended to cause that particular injuries to the liver and the spleen. However, under the circumstances, the appellant must be attributed to have the knowledge that by dealing such blows he was likely to cause the death of the deceased in which case the offence is one punishable under section 304 (Part II) of IPC. With these observations, Supreme Court changed the conviction of the said appellant Karam Singh from one under section302 of IPC to one under section 304 Part II of IPC.” 9. Consequently in the present case also we find that the accused will be guilty for the offence under section 304 Part II of the IPC and the fact that the assailants have come together, then all the accused be convicted with the aid of section 34 of the IPC. 10. Consequently the appeal is partly allowed. We set aside the conviction and sentence of the appellants under section 302/34 of the IPC and instead convict them for an offence punishable under section 304 Part II/34 of the IPC. We also direct that each of the appellants will have to undergo 8 years RI with fine of Rs.3,000/- each, in case of default of payment of fine, they shall further undergo 6 months RI. Thereafter on verification if the appellants have already undergone 8 and ½ years of custodial sentence, they shall be released forthwith if not required in any other offence. A copy of this order be sent to the trial Court for compliance. With the aforesaid observation and directions, the appeal is partly allowed.