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2017 DIGILAW 934 (MP)

Shyamlal v. State Of M. P.

2017-08-24

NANDITA DUBEY, R.S.JHA

body2017
JUDGMENT : This appeal has been filed by the appellants being aggrieved by the judgment dated 25-4-1994 passed by the 5th Additional District Judge, Chhattarpur in S.T. No. 45/90 whereby the appellants have been found guilty of offences punishable under sections 147, 452/149, 323/149, 323/149 and 302/149 of the Indian Penal Code and have been sentenced to R.I. for one year each for offences punishable under sections 147, 452/149 and 325/149, Indian Penal Code, R.I for 6 months each for offence punishable under section 323/149 and R.I for life each for offence punishable under section 302/149, Indian Penal Code. 2. It is to be noted that appellant No. 4 Ramswaroop s/o Swamideen has died during the pendency of the appeal and in such circumstances the appeal, so far as it relates to appellant No. 4 Ramswaroop s/o Swamideen stands abated. 3. The prosecution case in brief is that the appellants, with a common intention and object, got together and assaulted PW-1 Siroman, PW-2 Ramadhar PW-3 Haripal, PW-11 Jageshwar, PW-12 Chiranjeev and the deceased Laxman on 1-11-1989 at about 4.00 P.M. on the alleged imputation that PW-1 Siroman had cut the tail of a buffalo belonging to the appellants. It is the case of the prosecution that all the appellants initially attacked PW-1 Siroman, PW-3 Haripal and PW-11 Jageshwar while they were working in the field and thereafter, when Siroman ran away from the spot, appellants chased them and dragged PW-2 Ramadhar, PW-12 Chiranjeev and the deceased Laxman out of their house and again assaulted them, as a result of which all of them suffered injuries. 4. According to the prosecution case, while injuries suffered by PW-1 Siroman, PW-3 Haripal and PW-11 Jageshwar were simple in nature, the injuries inflicted upon PW-2 Ramadhar and PW-12 Chiranjeev were grievous injuries which resulted in fracture of the radius and ulna bone of the right hand in case of Chiranjeev and fracture of the ulna bone of the left hand in case of Ramadhar. 5. According to the prosecution the deceased Laxman was initially examined and was discharged after treatment but was again referred to the District Hospital on account of the fact that he was complaining of serious headache, nausea and vomiting. 5. According to the prosecution the deceased Laxman was initially examined and was discharged after treatment but was again referred to the District Hospital on account of the fact that he was complaining of serious headache, nausea and vomiting. According to the prosecution, Laxman was admitted and kept under observation and was treated at the District Hospital for 12 days and thereafter he was again discharged but while returning home along with PW-4 Vrindavan, he again complained of headache and was again admitted at the hospital in Chandala, where he died during the night of 15-11-1989. 6. On the basis of the aforesaid allegations, the appellants were prosecuted and the trial Court after analyzing the oral and documentary on record has held the appellants guilty of the offences punishable under sections 147, 452/149, 323/149, 325/149 and 302/149, Indian Penal Code. 7. The learned counsel appearing for the appellants submits that the appellants have been held guilty of offence punishable under section 302/149, Indian Penal Code on account of the death of Laxman which occurred on 15-11-1989 i.e. after 15 days of the incident which took place on 1-11-1989. The learned counsel for the appellants submits that the deceased Laxman was initially examined by Dr. PW-17 Baburam Arya, who has clearly stated in his evidence before the Court that there was no grievous injury on the person of Laxman. He further submits that even in respect of the injury suffered by the deceased Laxman on the occipital bone of his head, Dr. PW-17 Baburam Arya, has stated that the scalp beneath injury was healthy and intact. It is submitted that even after the death of the deceased Laxman, the same doctor performed the post-mortem and has again reiterated that the cause of death could not be ascertained and had sent the viscera for examination to ascertain the same. It is stated that while the Dr. PW-17 Baburam Arya has clearly stated that the cause of death could not be ascertained, he however opined that the cause of death was asphyxia and was not as a result of any injury inflicted by the appellants. 8. It is stated that while the Dr. PW-17 Baburam Arya has clearly stated that the cause of death could not be ascertained, he however opined that the cause of death was asphyxia and was not as a result of any injury inflicted by the appellants. 8. It is further submitted that the viscera report has not been placed on record by the prosecution and in such circumstances, the conclusion recorded by the trial Court on the basis of an assumption that the death of Laxman was caused on account of the injuries inflicted by the appellants is perverse and does not find support from the oral and documentary evidence on record. On the basis of the aforesaid assertion, the learned counsel for the appellants submits that in such circumstances as there is no evidence to indicate that the appellants had infact any intention to cause injuries or commit murder of the deceased Laxman and that he has not died on account of the injuries suffered by him in the alleged assault, therefore, the conviction of the appellants under section 302/149 of the Indian Penal Code deserves to be set aside. 9. The learned counsel appearing for the appellants states and submits that the appellants were granted anticipatory bail on 6-12-1989 and thereafter on conviction were again granted bail by this Court on 26-10-1994. 10. It is submitted that the incident is of the year 1989 and appellant No. 1 is now 78 years of age, whereas appellants No. 2 and 6 are about 70 years of age. It is stated that appellants No. 7 and 8 are also above 65 years of age and in such circumstances, looking to lapse of time and the fact that the incident occurred nearly 30 years ago, the period, if any, for which the appellants have remained in jail be taken into account and as far as the sentence of the appellants relating to offences punishable under sections 147, 452/149, 323/149 and 325/149 of Indian Penal Code is concerned, the same be treated as undergone. 11. The learned Panel Lawyer appearing for the State per contra submits that in the instant case, the Court below on the basis of analysis of the evidence of the injured eye-witnesses namely; P.W.1 Shiroman, P.W.3 Haripal, P.W.2. 11. The learned Panel Lawyer appearing for the State per contra submits that in the instant case, the Court below on the basis of analysis of the evidence of the injured eye-witnesses namely; P.W.1 Shiroman, P.W.3 Haripal, P.W.2. Ramadhar, P.W. 11 Jageshwar and P.W.12 Chiranjeev, as well as keeping in mind the cumulative number of injuries suffered by the aforesaid eyewitnesses and the deceased, namely, more than 35 injuries, has rightly held the appellants guilty of the offences punishable under sections 147, 452/149, 323/149 and 325/149 of Indian Penal Code. 12. The learned Panel Lawyer appearing for the State further submits that the deceased Laxman has infact died on account of the injuries inflicted by the appellants, which fact is evident from a perusal of the evidence of P.W.17 Dr. Arya as well as the medico-legal report, Ex.P/28 and the post-mortem report, Ex.P/31, from a perusal of which it is apparent that the deceased Laxman suffered internal injuries on account of the blow delivered by the appellants on the head of the deceased which ultimately resulted in his death, in spite of the fact that he was administered continuous treatment from the date of incident till the date of his death, firstly at the Hospital at Chandla, thereafter, at District Hospital, Chhatarpur and again at Chandla. 13. The learned Panel Lawyer appearing for the State submits that in such circumstances, as it is clearly established that all the accused assaulted the injured as well as the deceased with a common intention and object and inflicted grievous injuries on the person of Chiranjeev PW-12 and Ramadhar PW-2 and committed the murder of the deceased Laxman, the trial Court has rightly convicted the appellants for the appropriate offences committed by them. 14. We have heard the learned counsel for the parties, at length and have also carefully examined the oral and documentary evidence on record. 15. We are of the considered opinion that from the evidence on record the fact that the appellants assaulted PW-1 Shiroman, PW-2 Ramadhar, PW-3 Haripal, PW-11 Jageshwar, PW-12 Chiranjeev and the deceased Laxman with a common intention and object and inflicted several injuries upon their person is clearly established. 15. We are of the considered opinion that from the evidence on record the fact that the appellants assaulted PW-1 Shiroman, PW-2 Ramadhar, PW-3 Haripal, PW-11 Jageshwar, PW-12 Chiranjeev and the deceased Laxman with a common intention and object and inflicted several injuries upon their person is clearly established. It is also clearly established that the injuries inflicted by the appellants on the person of Chiranjeev PW-12 and Ramadhar PW-2, were grievous in nature which resulted in fracture of the radius and ulna bone of the right hand in case of Chiranjeev and fracture of the ulna bone of the left hand in case of Ramadhar and that they had also inflicted injuries upon the person of the deceased. In such circumstances, we do not find any infirmity, perversity and illegality in the findings recorded by the trial Court in respect of the offences committed by the appellants punishable under sections 147 of the Indian Penal Code, 452/149 of the Indian Penal Code, 323/149 of the Indian Penal Code and 325/149 of the Indian Penal Code. 16. As far as the conviction of the appellants under section 302/149 of the Indian Penal Code is concerned, from a perusal of the MLC report in respect of the deceased Laxman, Ex.P/28, it becomes evident that the concerned doctor namely Dr. Arya PW-17 on examining the deceased has stated that he had suffered simple injuries only. The doctor in his report has clearly stated that the injury on the head suffered by Laxman was also simple in nature and he has affirmed the aforesaid aspect in the statements made by him before the Court. It is also evident from a perusal of the post-mortem report, Ex.P/31 prepared by the same doctor PW-17 Dr. Arya that even in the post-mortem report the doctor has given an opinion that the deceased Laxman died on account of asphyxia and that the cause of death was not discernible. Dr. Arya PW-17 in his statement has also clarified that there was no internal damage to the brain of the deceased nor was there any evidence of internal damage to any of the organs. Dr. Arya PW-17 in his statement has also clarified that there was no internal damage to the brain of the deceased nor was there any evidence of internal damage to any of the organs. From a perusal of the record, it is also clear that the report of the chemical examination of the viscera which was sent for examination was also received on 27-1-1990, according to which, no chemical or poison was found in the organs of the deceased sent for examination. It is pertinent to note that this chemical examination report sent by the State Forensic Science Laboratory Sagar, has not been considered by the trial Court. From a perusal of the record of the trial Court, it is also apparent that the prosecution did not bring on record any document relating to the treatment of Laxman at the District Hospital in Chhatarpur, to establish that the ailment with which he was suffering and for which he was referred to the District Hospital Chhatarpur, was infact as a result of and was on account of injuries inflicted by the appellants upon his person. 17. In view of the aforesaid oral and documentary evidence on record, we are of the considered opinion that as the injuries inflicted by the appellants on the person of the deceased Laxman were simple in nature and had not been caused with the intent to commit murder therefore, as the death of the deceased was not on account of a direct and immediate result of the injuries suffered by him, the conviction of the appellants under section 302 of the Indian Penal Code cannot be sustained. However, the facts and evidence on record also clearly establish that while the injuries inflicted by the appellants may not have been grievous enough to cause the immediate death of the deceased Laxman but the undisputed facts indicate that immediately after receiving the injuries, the deceased started suffering from headache, nausea and started vomiting on account of which he was referred to the District Hospital and thereafter, he died on 15-11-1989 i.e. about 15 days after the incident and therefore, even if the injuries suffered were in themselves not sufficient to cause the immediate death of the deceased, but the deceased Laxman has infact died on account of the indirect result of the injuries and in such circumstances, we are of considered opinion that the appellants' conviction under section 302/149 of the Indian Penal Code deserves to be and is hereby set aside and instead the appellants are found and held to be guilty of an offence punishable under second part of section 304 of the Indian Penal Code. 18. From the facts on record, it is clear that the incident occurred in the year 1989, whereafter, the appellants were convicted by the trial Court by judgment dated 25-4-1994 and the appeal filed by the appellants against the said conviction in the year 1994, is coming up for hearing before this Court in the year 2017 and that at least four of the appellants are about 70 years of age, whereas appellant No. 1 is nearly 80 years of age and that they have not remained in jail for any considerable period of time either during the trial or during the pendency of this appeal. 19. The Supreme Court in the case of Fatte and others vs. State of U.P., AIR 1979 SC 1504 has held that in such circumstances, heavy compensation should be awarded to the persons who have suffered injuries and to the dependents of the deceased. 20. 19. The Supreme Court in the case of Fatte and others vs. State of U.P., AIR 1979 SC 1504 has held that in such circumstances, heavy compensation should be awarded to the persons who have suffered injuries and to the dependents of the deceased. 20. In the circumstances, looking to the background of the appellants who are all villagers, the lapse of time, the injuries suffered by the victims and the necessity to compensate the dependents of the deceased, while the conviction of the appellants under sections 147, 452/149, 323/149 and 325/149 of Indian Penal Code is upheld and instead of their conviction under section 302/149 of Indian Penal Code, they are held to be guilty of an offence punishable under second part of section 304/149 of the Indian Penal Code, the sentence imposed thereunder is treated to be undergone, however, a fine of Rs. 16,000/- each is imposed upon the appellants, out of which, a total sum of Rs. 1,00,000/- (Rs. One Lac) would be paid to the family of the deceased Laxman, whereas a compensation of Rs. 10,000/- (Rs. Ten thousand) each would be paid to Chiranjeev PW-12 and Ramadhar PW-2, while the remaining shall be treated as fine and retained. 21. The Supreme Court in the case of K. A. Abbas H.S.A. vs. Sabu Joseph and another, (2010) 6 SCC 230 in respect of law relating to award and recovery of compensation awarded to victims or dependents of a crime has held as under :— “26. From the above line of cases, it becomes very clear, that, a sentence of imprisonment can be granted (sic imposed) for default in payment of compensation awarded under section 357(3), Criminal Procedure Code. The whole purpose of the provision is to accommodate the interests of the victims in the criminal justice system. Sometimes the situation becomes such that there is no purpose served by keeping a person behind bars. Instead directing the accused to pay an amount of compensation to the victim or affected party can ensure delivery of total justice. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence on default of payment of this compensation, there must be a just recourse. Therefore, this grant of compensation is sometimes in lieu of sending a person behind bars or in addition to a very light sentence of imprisonment. Hence on default of payment of this compensation, there must be a just recourse. Not imposing a sentence of imprisonment would mean allowing the accused to get away without paying the compensation and imposing another fine would be impractical as it would mean imposing a fine upon another fine and therefore would not ensure proper enforcement of the order of compensation. While passing an order under section 357(3), it is imperative for the Courts to look at the ability and the capacity of the accused to pay the same amount as has been laid down by the cases above, otherwise the very purpose of granting an order of compensation would stand defeated. 27. Section 421, Criminal Procedure Code reads :— “421. Warrant for levy of fine. — (1) When an offender has been sentenced to pay a fine, the Court passing the sentence may take action for the recovery of the fine in either or both of the following ways, that is to say, it may — (a) Issue a warrant for the levy of the amount by attachment and sale of any movable property belonging to the offender; (b) Issue a warrant to the Collector of the district, authorizing him to realize the amount as arrears of land revenue from the movable or immovable property, or both of the defaulters : Provided that, if the sentence directs that in default of payment of the fine, the offender shall be imprisoned, and if such offender has undergone the whole of such imprisonment in default, no Court shall issue such warrant unless, for special reasons to be recorded in writing, it considers it necessary so to do, or unless it has made an order for the payment of expenses or compensation out of the fine under section 357. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (2) The State Government may make rules regulating the manner in which warrants under clause (a) of sub-section (1) are to be executed, and for the summary determination of any claims made by any person other than the offender in respect of any property attached in execution of such warrant. (3) Where the Court issues a warrant to the Collector under clause (b) of sub-section (1), the Collector shall realize the amount in accordance with the law relating to recovery of arrears of land revenue, as if such warrant were a certificate issued under such law : Provided that no such warrant shall be executed by the arrest or detention in prison of the offender.” 28. Section 431, Criminal Procedure Code reads :— “431. Money ordered to be paid recoverable as a fine. — Any money (other than a fine) payable by virtue of any order made under this Code, and the method of recovery of which is not otherwise expressly provided for, shall be recoverable as if it were a fine : Provided that section 421 shall, in its application to an order under section 359, by virtue of this section, be construed as if in the proviso to sub-section (1) of section 421, after the words and figures “under section 357”, the words and figures “or an order for payment of costs under section 359” had been inserted.” 29. Section 431 clearly provides that an order of compensation under section 357(3) will be recoverable in the same way as if it were a fine. Section 421 further provides the mode of recovery of a fine and the section clearly provides that a person can be imprisoned for non-payment of fine. Therefore, going by the provisions of the code, the intention of the legislature is clearly to ensure that mode of recovery of a fine and compensation is on the same footing. In light of the aforesaid reasoning, the contention of the accused that there can be no sentence of imprisonment for default in payment of compensation under section 357(3) should fail.” 22. In light of the aforesaid reasoning, the contention of the accused that there can be no sentence of imprisonment for default in payment of compensation under section 357(3) should fail.” 22. In view of the law laid down by the Supreme Court in the case of K. A. Abbas H.S.A. (supra) it is further ordered that in case of default on the part of the appellants to deposit the aforesaid amount as fine and compensation, each of the appellants would undergo simple imprisonment of further period of six months. Apart from the aforesaid fact, the parties concerned would be at liberty to take up proceedings for recovery of the aforesaid compensation amount from the appellants under section 421 of the Code of Criminal Procedure. 23. With the aforesaid modification, the appeal filed by the appellants is partly allowed and to that extent the impugned judgment of the trial Court is modified. 24. A copy of this judgment be sent to the Secretary, High Court Legal Services Committee, Jabalpur for information.