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Madhya Pradesh High Court · body

2016 DIGILAW 723 (MP)

Ramcharan v. State of M. P.

2016-08-22

N.K.GUPTA, VIVEK AGARWAL

body2016
JUDGMENT Gupta, J. -- 1. Since both the appeals are arising from the judgment dated 30.1.1999 passed by the Second Additional Sessions Judge, Vidisha (M.P.) in S.T. No. 91/1988, both the appeals are hereby decided with the present common judgment. 2. The appellants have preferred the present appeal (Criminal Appeal No.74/1999) against the aforesaid judgment being aggrieved by their conviction of offence under section 325 read with sections 34 and 323 read with section 34 (four count charges) of IPC and they have been sentenced to one year’s rigorous imprisonment with a fine of Rs.500/- and with fine of Rs.300/- on each count charges of section 323 read with section 34 of IPC. 3. On the other hand, the State has preferred the present Criminal Appeal bearing No.393/2000 against the acquittal of the respondents including the appellants of Criminal Appeal No.74/1999 because the appellants of Criminal Appeal No.74/1999 have been acquitted from the charge of section 302/149 of IPC and remaining accused persons have been acquitted from all the charges. 4. Facts of the case, in short, are that on 25.3.1986 at about 10:00 a.m. Rajju (PW9) had lodged an FIR Ex. P-19 at Police Station Gyaraspur that he was the resident of village Basiyakala and he is the cultivator by profession. At about 9:00 a.m. when he along with witnesses Bihari (PW10), Laxman Prasad (PW11), Madho (deceased) and Haribai (PW12) was cutting the crop of wheat, various accused persons including Shyambabu, Ramcharan, Bheekam, Bhav Singh, Nirpat, Bishna, Munna, Kallu, Hargyan and Balkishan surrounded them. The accused persons were armed with Katarna (farsa), Luhangi (stick having iron bangles) and sticks and started assaulting them. Mainly, the assault was done by Shyambabu, Bheekam, Bhav Singh and Ramcharan. In that assault, six persons namely Madho, Bihari, Laxman, Haribai, Rajju and Hallu sustained injuries. After recording the evidence, the injured persons were sent for their medico-legal examination. Dr. V.G. Kavre (PW1) examined the deceased Madho and gave his MLC report Ex. P-1. He found mainly two diffused swellings on left and right tempo-frontal region of the deceased Madho and various abrasions on his elbows and knees. A bruise was also found on his back in a transverse direction. Dr. Rajendra Kumar Rai (PW5) examined Laxman, Hari Bai, Rajju, Bihari and Hallu and gave his reports Exs.P-9 to P-13 respectively. P-1. He found mainly two diffused swellings on left and right tempo-frontal region of the deceased Madho and various abrasions on his elbows and knees. A bruise was also found on his back in a transverse direction. Dr. Rajendra Kumar Rai (PW5) examined Laxman, Hari Bai, Rajju, Bihari and Hallu and gave his reports Exs.P-9 to P-13 respectively. After due treatment, the deceased Madho had died and his body was referred for post-mortem. Dr. D.K. Satpathi (PW8) performed the post-mortem on the body of the deceased Madho and gave his report Ex.P-17. He found various abrasions on both the knees and elbows. There was a wound on his head in which two pieces of bones were found in the wound and those two pieces were also turned into several small pieces. One injury was found on his left shoulder and according to the Dr. D.K. Satpathi (PW8) the deceased Madho died due to head injury and that head injury was sufficient to cause his death. 5. On investigation, the investigating officer had recorded the memo under section 27 of the Evidence Act of various accused persons and recovered various weapons i.e. Katarna, Luhangi and sticks from the accused persons. Then, after due investigation, charge-sheet was filed before the Judicial Magistrate First Class, Vidisha (M.P.) who committed the case to the Court of Session and ultimately it was transferred to the Second Additional Sessions Judge, Vidisha (M.P.). 6. During pendency of the appeal, the appellant Shyambabu expired and therefore the appeal filed by the appellant Shyambabu and the appeal filed by the State against him turned abated and the name of Shyambabu was deleted from both the appeals. 7. The appellants of Criminal Appeal No.74/1999 and the remaining accused persons abjured their guilt. They took a plea that they were falsely implicated in the matter. No specific defence was taken by the accused persons, however, looking to the document Ex.D-6 it appears that it was claimed by the accused persons that a land in dispute was purchased by the accused persons and they were in possession of the property. In defence, Sushil Kumar (DW1) was examined who proved the sale of land bearing Survey Nos.34 and 41 of that village. 8. In defence, Sushil Kumar (DW1) was examined who proved the sale of land bearing Survey Nos.34 and 41 of that village. 8. The trial Court after considering the evidence adduced by the parties acquitted the accused persons, namely, Balkishan, Nirpat, Bishna, Munna, Kallu and Hargyan from all the charges whereas accused Shivlal and Balaprasad died during trial. The appellants of Criminal Appeal No.74/1999 have been acquitted from the charge of section 302 read with section 149 of IPC and they have been convicted of lesser offence under section 325 read with section 34 of IPC whereas for the victims Bihari, Rajju, Hallu and Laxman they have been convicted of offence under section 323 read with section 34 of IPC and sentenced them as mentioned above. 9. We have heard learned counsel for the parties at length. 10. First question which is to be decided is as to whether the death of deceased Madho was homicidal in nature or not? In this connection, Dr. V.K. Kavre (PW1) proved the MLC report Ex.P-1 and informed about five injuries which are as under : 1. Diffused swelling on left tempero-frontal region of size 4 cm x 3 cm; 2. Diffused swelling on right tempero-fronto zygomatic region of size 5 cm x 3 cm; 3. Abrasion on right leg anteriorly below knee 2cm x 1cm; 4. Abrasion on left leg anteriorly below knee 2cm x 1cm.; 5. A bruise on lower part of back transverse 10cm x 1 cm. 11. On examining the deceased Madho radiologically, he found that there was a fracture of frontal bone visible in the X-ray. Radiological report is Ex.P-2. Dr. D.K. Satpathy (PW8) performed the post-mortem on the body of the deceased Madho and gave report Ex.P-17. He found various abrasions on both the elbows and both the knees. On head, he found that various bones were broken and initially they were in two pieces in the head and those were converted into several pieces. There was internal haemorrhage in the brain and subdural cavity on both the temporal sides. There was a fracture in base of the skull. On left shoulder, he found a blunt injury having diameter of 7 cms. 12. Dr. D.K. Satpathy’s report co-related with the initial report given by Dr. V.G. Kavre (PW1) but since the surgery was done and some stitches were caused on the head of the deceased, Dr. There was a fracture in base of the skull. On left shoulder, he found a blunt injury having diameter of 7 cms. 12. Dr. D.K. Satpathy’s report co-related with the initial report given by Dr. V.G. Kavre (PW1) but since the surgery was done and some stitches were caused on the head of the deceased, Dr. Satpathy could not specifically opine that how many injuries were caused on the head of the deceased Madho, however, Dr. Kavre has proved that there was diffused swelling on both the tempero-frontal regions of the deceased and therefore minimum two injuries can be presumed on his head. According to Dr. Satpathy, head injury was of such a nature that it was sufficient to cause death in the ordinary course of life, hence, it is proved beyond doubt that the death of the deceased was homicidal in nature. 13. The State has preferred the appeal against the appellants of Criminal Appeal No.74/1999 because they have been acquitted by the trial Court of offence under section 302 of IPC whereas remaining respondents have been acquitted from all the charges. Hence, the overt act of all the accused persons is to be examined. In this connection, Param (PW3), Rajju (PW9), Bihari (PW10), Laxman Prasad (PW11) and Hari Bai (PW12) have been examined as eye-witnesses. In this connection, corresponding injuries were found to the deceased Madho as well as various injured witnesses, namely, Rajju, Bihari, Laxman Prasad, Hari Bai an Hallu. According to these witnesses, there is a lot contradiction among them as to who assaulted which victim. However, it would be apparent that when several accused persons were beating approximately 4-5 persons then the person who was getting blows of various weapons could not be in a position to see about the assault done on others. It is also visible from the evidence of these witnesses that the assailants initially assaulted the deceased Madho and at that time witnesses could see that who assaulted him but it was not expected that they would have maintained accounts of all the blows given to the deceased Madho and therefore there is some discrepancy about the blows given by a particular accused and injury caused on a particular portion of the body. However, after considering the evidence of these witnesses, it appears that the appellants of Criminal Appeal No.74/99 i.e. Shyambabu, Ramcharan, Bhikam and Bhav Singh have assaulted the deceased Madho and only these four persons had assaulted various victims like Bihari, Hari Bai, Hallu, Laxman Prasad and Rajju. 14. It is not possible for the witnesses to count the blows and to state clearly that who assaulted which victim. But one who was injured could definitely state that he was beaten by which accused. On such methodology, if overt acts of the culprits are examined then it would be clear from the evidence of these witnesses that out of accused persons only accused Shyambabu, Ramcharan, Bhikam and Bhav Singh assaulted various victims and the deceased Madho. There is no confirmation of evidence given by the witnesses relating to the assaults done by other accused persons. It was told by one witness that the acquitted accused had assaulted a particular person but that particular injured/a witness did not confirm that he was beaten by the accused who was acquitted. In these circumstances, no overt act of the acquitted accused persons was brought on record with a definite view that they assaulted any of the victims or the deceased Madho. It is also apparent that the deceased Madho sustained 4-5 main injuries and his abrasions on knees and elbows could be caused after his falling on the ground being injured and therefore, it can be said that he sustained only five blows from the culprits. Hence, not more than five persons can be implicated in the crime of assault done with the deceased Madho. The trial Court has rightly found that there is no evidence of the witnesses that out of four appellants of Criminal Appeal No.74/1999 there was any evidence against the acquitted accused persons that they assaulted the deceased Madho. Hence, in the absence of any acceptable evidence, the trial Court has rightly acquitted the remaining respondents from all the charges because their participation was not proved beyond doubt. By mere presence of a person, he cannot be convicted of any offence either directly or with the help of section 34 or 149 of IPC. 15. Hence, in the absence of any acceptable evidence, the trial Court has rightly acquitted the remaining respondents from all the charges because their participation was not proved beyond doubt. By mere presence of a person, he cannot be convicted of any offence either directly or with the help of section 34 or 149 of IPC. 15. Learned counsel for the convicted appellants has submitted that initially charge of offence under section 302 of IPC read with section 149 of IPC was appended and no unlawful assembly was found to be constituted then the appellants could not be convicted under section 302 read with section 34 of IPC. However, such contention cannot be accepted. In this connection, the judgment passed by the apex Court in the case of State of Orissa v. Arjun Das Agrawal and another [ AIR 1999 SC 3229 ], may be referred in which it is held that if any accused is charged under section 302 read with section 149 of IPC then he could be convicted of offence under section 302/34. Hence, in the absence of any unlawful assembly, the accused could be convicted of offence with the help of section 34 of IPC. 16. Learned counsel for the State has argued that Dr. D.K. Satpathi (PW8) has opined that the injury caused to the deceased on the head was sufficient to cause his death in the natural course of life and therefore the trial Court had to convict the accused persons for offence under section 302 of IPC with the help of section 34 of IPC. On the other hand, the learned counsel for the convicted appellants has submitted that it was not proved beyond doubt as to who assaulted on the head of the deceased and therefore, no accused could be convicted of offence under section 302 of IPC. First of all, it is to be seen that what was offence committed in the case. On the other hand, the learned counsel for the convicted appellants has submitted that it was not proved beyond doubt as to who assaulted on the head of the deceased and therefore, no accused could be convicted of offence under section 302 of IPC. First of all, it is to be seen that what was offence committed in the case. In this connection, the judgment passed by the apex Court in the case of Pularu v. State of Madhya Pradesh [ 1993 CrLJ 1809 (SC)], may be referred, in which it is held that the accused assaulted the deceased and inflicted a single blow by Tabbal, a blunt agricultural instrument which is not considered as a deadly weapon it was held that the accused was not to be convicted by invoking clause 1 or 3 of section 300 of IPC and conviction could be done for offence under section 304 (Part II) of IPC and therefore the culprit who gave a blow on the head of the deceased was responsible for offence under section 304(Part II) of IPC. 17. Learned counsel for the appellants has also submitted that there is a discrepancy in the evidence given by the witnesses with their case diary statements. Before the Court they have stated that the deceased was killed by Luhangi blows whereas initially they had stated that the deceased was beaten by Katarna or farsa and the police has recovered respective Katarna from three convicted persons. It is a material contradiction and the testimony of witnesses should be discarded. In this connection, judgment passed by the apex Court in the case of State of Rajasthan v. Rajendra Singh [1998 SCC (Cri) 1605], is referred. 18. It is true that there is a material contradiction relating to weapons used by the convicted accused persons in the case diary statements of the witnesses and weapons described in their statements before the court. However, it would be apparent that out of all the eye-witnesses four were the injured persons who could not commit any mistake in identifying the actual culprits who assaulted the deceased Madho and therefore if there is any discrepancy relating to weapons then it makes no difference because possibility cannot be ruled out that witnesses could not see as to whether the deceased was assaulted from the blunt side of Katarna or by a luhangi. According to Dr. Kavre and Dr. According to Dr. Kavre and Dr. Satpathi, there was no injury to the deceased Madho or any of the injured persons which could be caused by sharp cutting weapon. Hence, if one Katarna each was recovered from the convicted accused persons then it makes no difference. Looking to the injuries of various victims like Bihari, Rajju, Laxman Prasad, Hallu and Hari Bai, it is apparent that they were beaten by the accused person with hard and blunt weapons and each convicted accused is convicted on four count charges of section 323 of IPC. Hence, the discrepancy of weapons should be discarded and the testimony of the injured witnesses should be believed. 19. Learned counsel for the appellants has also invited the attention of this Court to the judgment passed by the apex Court in the case of Anuplal Yadav and another v. State of Bihar [ (2014)10 SCC 275 ], in which it has dealt with the common object of unlawful assembly and its consequences. In the present case, no unlawful assembly was found to be constituted and therefore such judgment passed by the apex Court in Anuplal Yadav (supra), has no much relevance in the present case. The present case depends upon the common intention of the accused persons and it is necessary to examine their common intention because various injured persons have stated in omnibus manner that these four persons had assaulted the deceased Madho. 20. Two injuries were found on the head by Dr. D.K. Satpathi (PW8), one was on the leg (except the injuries on knees) and one injury on the back. Dr. D.K. Satpathi (PW8) who could not have any opportunity to see the skin of head when the deceased had the diffused swelling because the wound was treated with stitches on the head and after some time pieces of crack bones were dropped into the head and turned into several pieces therefore the diffused swelling could not be observed in the post-mortem and he could not opine definitely that how many blows were given on the head of the deceased Madho. But it is clear from the evidence of eye-witnesses that no accused has repeated any blow on the head of the deceased. But it is clear from the evidence of eye-witnesses that no accused has repeated any blow on the head of the deceased. If evidence of all the eye-witnesses is examined then it would be apparent that they have stated in omnibus manner that the convicted accused persons assaulted the deceased Madho but none of them could say definitely that who assaulted on the head of the deceased Madho. If out of four persons someone had assaulted on the head of the deceased Madho then he would have been made liable for the commission of offence 304(II) of IPC, but in the present case none of the accused is specifically blamed for assaulting on the head of the deceased Madho and therefore for conviction of four convicted accused persons their common intention is to be examined and they can be convicted upto the limit of their common intention. 21. The accused persons have examined a defence witness Sushil Kumar (DW1) who proved a sale deed to say that the land bearing survey numbers 34 and 31 was sold by Hari Singh and it is accepted by the witnesses that they have enmity with Hari Singh first and thereafter with his successors, however, they did not accept that the quarrel had taken place on the basis of possession relating to land bearing survey numbers 34 or 41. In this connection, the statement of Patwari, namely, Brijkishore Saxena (PW6) is important in which he has accepted that the dispute was of the land bearing Survey No.43. The convicted accused persons could not prove in documents to show that they have any possession of the land bearing survey number 43 and therefore if the victims were cutting the crop of that land then the trial Court has rightly discarded that the convicted accused persons had any right of private defence relating to the land bearing Survey No.43. Every accused went to the spot from the very beginning armed with sticks and luhangis, however, looking to the overt act, it appears that as many as 10 persons had surrounded the spot but out of those 10 persons, six did not participate in the assault done on the deceased Madho and other injured persons and therefore their common intention could not be gathered from their presence or with the fact that they went to the spot armed with sticks or Luhangis. If overt act of the convicted accused persons is considered in relation to the injured Bihari, Rajju, Hari Bai, Laxman Prasad and Hallu where such victims had sustained 2-5 injuries in all but they did not sustain any grievous or fatal injury on their person then the common intention of the accused persons who participated in the crime could be to cause simple injuries to the above various victims so that they could have retained the possession of the property on which the wheat was growing. 22. From the evidence of these victims and injured persons, it cannot be said that any of the accused had intended to kill the deceased Madho or he had any personal rivalry with deceased Madho. Actually, the field was owned by Rajju (PW9), and deceased Madho was present working in the field as the brother of Rajju (PW9). All the convicted accused persons had assaulted 5-6 injured persons simultaneously and therefore, if one or two accused have given a powerful blow on the head of the deceased, then it cannot be said that the remaining accused persons had any common intention to kill or to commit homicidal death of the deceased Madho. Hence, when it is not confirmed that who assaulted on the head of the deceased Madho no one can be convicted of offence under section 304(II) of IPC. They can be convicted for offence under section 325 read with section 34 of IPC. In this connection, the judgment passed by the apex Court in the case of Rama Meru and another v. State of Gujarat [ AIR 1992 SC 969 ], may be perused in which it is held that the injuries were collectively sufficient to cause death but individually they were not likely to cause death, therefore, the common intention of murder was not found established and the accused persons have been convicted under section 326 of IPC. 23. 23. Also in this connection, the judgment passed by the apex Court in the case of Kedar Prasad and others v. State of Madhya Pradesh [ 1992 JLJ 676 = AIR 1992 SC 1629 ], may be perused in which two accused persons were convicted of offence under section 304 (Part I) of IPC but it was found that if other accused persons have caused simple injuries to the deceased then their common intention cannot be presumed with the main accused and therefore the main accused was convicted of offence under section 304 (Part I) of IPC but the second accused was convicted only for the offence under section 324 of IPC. In this connection, judgment passed by the apex Court in the case of Ram Nath Madhoprasad and others v. State of Madhya Pradesh [ AIR 1953 SC 420 ], may be perused. In that judgment it was found that five persons went to the spot and out of them one had fired with the gun, however, it could not be proved that who fired with the gun and therefore it was found that no common intention and common object of anyone could be presumed with the accused who fired with the gun and therefore all the accused persons have been acquitted. 24. In the light of the aforesaid judgments where no appellant is proved to be the main accused who is liable for the offence under section 304(Part II) of IPC on the basis that he gave a forceful assault on the head of the deceased whereas the remaining accused appellants had common intention at the most to cause a grave injury to the deceased with the help of hard and blunt object and therefore they shall be punished upto the limit of their common intention. Hence, the trial Court has rightly convicted the appellant for the offence under section 325 read with section 34 of IPC. 25. So far as the sentence is concerned, it is submitted by the learned counsel for the appellants that the appellant Ramcharan, Bhikam and Bhav Singh were the first offenders who have faced the trial and appeal for last 28 years. They remained in custody for more than four months and therefore they may not be sent to jail again. 26. So far as the sentence is concerned, it is submitted by the learned counsel for the appellants that the appellant Ramcharan, Bhikam and Bhav Singh were the first offenders who have faced the trial and appeal for last 28 years. They remained in custody for more than four months and therefore they may not be sent to jail again. 26. If entire custody period of these accused persons is considered then it would be apparent that the appellant Bhav Singh remained in custody during trial for 551 days and 15 days in appeal i.e. in all 566 days and therefore he has already undergone the entire sentence of one year along with the default sentence in lieu of the payment of fine, hence, there is no need to change the sentence of appellant Bhav Singh. Ramcharan and Bhikam remained in custody approximately for four months during pendency of trial and appeal. They have faced trial and appeal for 28 years. It is a case of section 325 of IPC, hence, it cannot be said that it is so grave. Looking to their custody period it would be appropriate to enhance the fine amount and not to send these appellants to jail again. 27. On the basis of the aforesaid discussion where the State could not prove anything against other respondents who were not convicted by the trial Court and therefore appeal filed by the State cannot be accepted against them because their participation could not be proved. Similarly, the State could not prove that the convicted accused can be convicted of offence under section 302 or 304 of IPC. On the contrary, their conviction recorded under section 325 of IPC is maintainable. Consequently the appeal filed by the State is hereby dismissed. 28. Appeal filed by the appellant- Bhav Singh is hereby dismissed because he has already undergone the entire sentence imposed by the trial Ccourt, however, if he has not deposited the fine amount then he should deposit the fine amount within two months from today failing which he shall undergo for default sentence in lieu of payment of fine. 29. Appeal filed by appellants Ramcharan and Bhikam is hereby partly allowed. Their conviction of offence under section 325 of IPC and four count charges of section 323/34 of IPC is maintained. 29. Appeal filed by appellants Ramcharan and Bhikam is hereby partly allowed. Their conviction of offence under section 325 of IPC and four count charges of section 323/34 of IPC is maintained. No change is made in the sentence for four count charges of section 323/34 of IPC but the sentence of offence under section 325/34 of IPC is reduced to the period for which they remained in custody, however, fine amount is enhanced from a sum of Rs.500/- to a sum of Rs.10,000/-. They are directed to deposit the remaining fine amount before the trial court within two months from today failing which each of them shall undergo rigorous imprisonment for six months. On deposit of the fine amount, a sum of Rs.20,000/- be provided to the legal representatives of the deceased Madho by way of compensation. 30. The appellants No.2, 3 and 4, namely, Ramcharan, Bhikam and Bhav Singh were on bail. Their presence is no more required before this Court and therefore, it is directed that their bonds shall stand discharged. 31. Copy of the judgment be sent to the Court below along with its record for information and with a direction that in case if fine amount is not deposited within two months by the appellants Ramcharan, Bhikam and Bhav Singh then recovery be done as per the provisions contained under section 68 of IPC.