HIGH COURT OF MADHYA PRADESH: JABALPUR (AFR)
CRIMINAL APPEAL NO. 2015/2006
1. Purushottam Patel, son of Ramlal Patel
aged about 43 years.
2. Noni, son of Khuman Patel,
aged about 60 years.
3. Ghassi @ Ghasoti, son of Ramsai,
aged about 45 years.
4. Gulab Patel, son of Ramlal Patel,
aged about 28 years.
5. Gajraj Patel, son of Purushottam Patel,
aged about 27 years.
6. Rajju Master alias Rajaram Raikwar,
son of Nandlal Raikwar, aged about 43 years.
All cultivators and residents of village
Bori-Kala, Police Station Hatta,
District Damoh, M.P.
.......Appellants
-Versus-
State of Madhya Pradesh
........Respondent
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For the appellant: Shri S.C.Datt, Senior Advocate with Shri
Siddharth Datt, Advocate.
For the respondent: Shri Prakash Gupta, Panel Lawyer.
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CRIMINAL REVISION NO. 2232/2006
Tajammul Hussain, son of Sheikh Rustam,
aged about 47 years, Resident of village
Borikala, P.S.Hatta,
District Damoh (M.P.) .......Applicant
-Versus-
1. Purushottam Patel, son of Ramlal Patel
aged about 43 years.
2. Noni, son of Khuman Patel,
aged about 60 years.
3. Ghassi @ Ghasoti, son of Ramsai,
aged about 45 years.
4. Gulab Patel, son of Ramlal Patel,
aged about 28 years.
5. Gajraj Patel, son of Purushottam Patel,
aged about 27 years.
6. Rajju Master alias Rajaram Raikwar,
son of Nandlal Raikwar, aged about 43 years.
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All cultivators and residents of village
Bori-Kala, Police Station Hatta,
District Damoh, M.P.
7. State of Madhya Pradesh
through P.S. Hatta,
District Damoh (M.P.)
........Non-applicants
--------------------------------------------------------------------------------------------------------
For the applicant Shri Mohd.Amzad, Advocate.
For the respondents: Shri S.C.Datt, Senior Advocate with Shri
Siddharth Datt, Advocate.
Shri Prakash Gupta, Panel Lawyer.
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Present: Hon'ble Justice Shri Rakesh Saksena
Hon'ble Justice Shri S.C.Sinho
--------------------------------------------------------------------------------------------------------
Date of hearing : 18.03.2010
Date of judgment: 31.03.2010
**********
JUDGMENT
Per Rakesh Saksena, J.
Since the aforesaid appeal as well as revision arise out of
the common judgment passed by the trial Court, both are being
disposed of by this common judgment.
2. Appellants have filed Criminal Appeal No.2015/2006
against the judgment dated 10.10.2006 passed by IInd Additional
Sessions Judge, Damoh in Sessions Trial No.271/2001 convicting
them under sections 304-I/149 and 148 of the Indian Penal Code and
sentencing them to rigorous imprisonment for 10 years with fine of
Rs.20,000/- and rigorous imprisonment for 2 years on each count
respectively.
3. Complainant Tajammul Hussain has filed Criminal
Revision No.2232/2006 against the aforesaid accused persons
challenging their acquittal under section 302/149 I.P.C. Though this
revision was filed against all the 23 accused persons tried by the
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Court below, however, the revision was admitted only against non-
applicants No. 1 to 6.
4. Facts of the prosecution case are that a dispute existed
between the appellants on one side and deceased Rafique on the
other over land belonging to one Natthu Lodhi. On 1.12.2000, at
about 11:00 a.m., Jira Bai and Premrani (acquitted co-accused) went
to the house of Shafique (PW2) and called him and Rafique, to the
house of Moti Patel for resolving the dispute saying that Ramlal Patel
and Purushottam Patel had called him. Accordingly, at about 12:30
p.m., Rafique went to the house of Moti Patel on a bicycle. After
some time Shafique along with Lalu Ahirwar (PW14) and Kalu
Pathan (PW13) also reached there. When they reached near the
house of Moti Patel, they saw Rafique standing in the courtyard
surrounded by 23 accused persons including the appellants. They all
were armed with weapons and were assaulting Rafique. Purushottam
Patel, Rajaram and Ghassi had swords, Gajraj had a farsa, Gulab had
a ballam, Noni Patel had an axe and Ramlal Patel had a gun. Other
accused persons assaulted him with fist and kick blows. When
Shafique and other persons reached near them, Ramlal Patel fired
his gun in the air but when they raised a ‘Lalkaar’, all the accused
persons ran away. They saw bleeding injuries on the body of Rafique.
He was squirming and after some time he expired.
5. The news regarding the incident was received by ASI Hatta
N.P.Tiwari (PW16). He along with police force reached the spot
where he recorded Dehati Nalshi (Ex.P/19) given by Shafique
(PW12). He also seized blood from the spot. On the basis of Dehati
Nalshi, later on First Information Report Ex.P/18 was recorded at
police station. Dead body of Rafique was sent for postmortem
examination. Accused were arrested and weapons were recovered
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from their possession. After investigation, charge sheet was filed and
case was committed for trial.
6. Defence of the appellants was of denial and false
implication. According to them, deceased was of notorious character.
In the past, he had been prosecuted for molesting women and for
some other offences. On the day of incident he had entered the house
of Moti Patel with some ulterior purpose and had been killed inside
the house and thereafter his body was thrown outside in the
courtyard. Shafique (PW12), Kalu (PW13) and Lalu (PW14) had in
fact not witnessed the incident and had been introduced to bolster a
false case. Dehati Nalshi (Ex.P/19) was also ascribed at some later
stage.
7. At the trial, prosecution case rested mainly on the
testimony of eyewitnesses Shafique (PW12), Kalu (PW13), Lalu
(PW14) and the medical evidence of Dr. Rakesh Bhardwaj (PW10).
Learned Additional Sessions Judge, after trial and upon appreciation
of evidence adduced in the case, acquitted the appellants of the
charges under section 302/149 I.P.C. but found them guilty under
section 304-I I.P.C. and convicted and sentenced them accordingly.
However, finding the prosecution evidence insufficient against rest
of 17 accused persons, acquitted them of all the charges.
8. Learned counsel for the appellants submitted that the
trial Court gravely erred in placing implicit reliance on the evidence
of the alleged eyewitnesses. They were related to deceased and were
interested witnesses. Statement of Kalu u/s 161 Cr.P.C. was
recorded on 27.1.2001 i.e about one and a half month after the
occurrence. Apart from that, learned counsel submitted that the trial
Court committed error in convicting the appellants under section
304-I I.P.C. since, none of the injury, alleged to have been inflicted
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by the accused persons, was found on any vital part of the body of
deceased, at the most, appellants could have been held liable for the
commission of offence under section 304 Part II I.P.C. Learned
counsel also placed reliance on Molu and others Vs. State of
Haryana (AIR 1976 SC 2499), Sarwan Singh and others Vs.
State of Punjab (AIR 1978 SC 1525), Sita Ram and others vs.
State of U.P. (AIR 1993 SC 350) and State of U.P. Vs. Satish
(AIR 2005 SC 1000).
9. Learned counsel for the State submitted that the
evidence of eyewitnesses was reliable and trustworthy. Merely on
the ground of delay in recording the police statement, the evidence
of otherwise reliable witness could not be discarded especially when
his name was mentioned in Dehati Nalshi recorded immediately after
the occurrence. He justified and supported the conviction of the
appellants under section 304-I I.P.C.
10. Learned counsel for the applicant in Criminal Revision
No.2232/2006, on the other hand, submitted that from the
circumstances of the case and the evidence on record, a clear case
of commission of offence by the accused persons under section
302/149 I.P.C. was made out, therefore, accused/appellants were
liable to be convicted under section 302/149 I.P.C. and for that
purpose the case deserved to be remanded.
11. We have heard the learned counsel for the parties and
have gone through the entire evidence on record.
12. It was no longer disputed that deceased Rafique died of
homicidal injuries. It was also reflected from the evidence of Dr.
Rakesh Bhardwaj (PW10), who conducted postmortem examination
of the body of deceased and found following injuries in his report
Ex.P/17(A):-
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(1) Incised wound - over upper part of left leg, below
the knee joint 14cm x 4cm x 5cm starting anteriorly
covering whole of the back, muscles and blood vessels cut.
Both bones cut.
(2) Incised wound – 6cm x 2.5cm x 1.5cm over lower
part of right forearm, dorsal aspect, blood vessels cut;
shaft of right ulna cut in its lower part.
(3) Incised wound – .75cm x .25cm muscle deep over
middle of the right forearm.
(4) Linear abrasion – 4.5cm x .25cm over antero lateral
part of lower middle part of right upper arm.
(5) Linear abrasion – 10cm x .25cm over upper part of
right upper arm.
(6) Incised wound – .5cm x .25cm muscle deep just
medial to injury No.2.
(7) Incised wound – over middle part of left forearm 3cm
x 1.5cm x 2.5cm.
(8) Abrasion – on middle of the left upper arm 6cm x .
25cm.
(9) Haematoma over occipital region of scalp 3cm x
1cm.
In the opinion of doctor, cause of death of deceased was
Cardio respiration as a result of shock due to haemorrhage.
13. Eyewitness Sheikh Safique (PW12) deposed that on
1.12.2000 at about 11:00 a.m., Jira Bai and Premrani came to his
house and told that Ramlal Patel and Purushottam Patel were calling
them for a compromise in respect of dispute of land. At about 12:30,
his brother Rafique went on a cycle towards the house of Motilal.
After about 10-15 minutes, when he, Kalu Pathan and Lalu Ahirwar
reached the house of Motilal, they saw accused persons assaulting
Rafique. Purushottam, Rajaram and Ghassu Chamar had swords,
Gajraj had a farsa, Noni Patel had an axe, Gulab Patel had a spear
and Ramlal Patel had a gun. Other accused persons were empty
handed. When they were at about 100 feet away from the house of
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Motilal, they shouted whereupon accused Ramlal fired a gun in the
air, but when they reached near, all the accused persons ran away.
They saw his brother lying smeared in the blood. There were cut
injuries on his leg and both the hands. Rafique could not speak
anything and died. He then went to lodge the report with the police.
14. Head constable Ramswarup Upadhyaya (PW11) stated
that an information was received at police station about some
quarrel in village Bori, due to which ASI Tiwari and constable
Ghanshyam proceeded for village Bori. Dehati Nalshi (Ex.P/19) was
brought by Ghanshyam on the basis of which he registered First
Information Report Ex.P/18 on 1.12.2000. Similarly, Assistant Sub
Inspector N.P.Tiwari (PW16) deposed that at police station, Hatta he
received information about the quarrel in village Bori whereupon he
went to the spot. On report by Sheikh Shafique, he registered the
crime under sections 147,148,149,302 I.P.C. against 23 accused
persons. He recorded Dehati Nalshi Ex.P/19 as well as marg report
Ex.P/40. He stated that an old man had given information to him at
police station about the quarrel and no report was recorded on the
said information at police station, but he had recorded a brief
information in Roznamcha and had proceeded for village Bori. Thus,
the evidence of Sheikh Shafique (PW12) stands corroborated by the
evidence of ASI N.P.Tiwari (PW16).
15. Corroborating the evidence of Sheikh Shafique (PW12),
Kalu (PW13) stated that at about 12 o’clock when he was going to his
field, Shafique and Lalu met him on way and informed that a
panchayat was convened for resolving the dispute about the land of
Moti Patel. Then he along with them went to the house of Moti Patel.
When he reached there, he saw Purushottam Patel, Gajraj Patel,
Gulab and Ghassu Chamar assaulting Rafique by means of swords,
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farsa, spear etc. Ramlal Patel, who had a gun, fired it when he saw
them approaching to the place of occurrence. When they reached
there, accused persons ran away and they saw the body of Rafique
lying smeared in the blood. After the occurrence, he went to his field,
but at about 5 o’clock in the evening, Kotwar called him to join the
inquest proceedings. Inquest memo Ex.P/27 was prepared before
him and he had signed it. This witness admitted that his statement
was recorded by the police about one and a half month after the
occurrence. According to him, he remained busy at his house and in
agricultural operations at his field, but for the first time when police
called him he gave his statement. He did not go to lodge the report
because the brother of deceased was with him and it was for him to
lodge the report. Learned counsel for the appellants argued that
since the police statement of this witness was recorded after an
inordinate delay, his evidence was not trustworthy. It is to be seen
that the name of this witness was mentioned by the complainant in
Dehati Nalshi Ex.P/19 which was recorded immediately after the
incident and that he had also participated in the inquest
proceedings, therefore, merely by carelessness or negligence on the
part of investigating officer in not recording the statement of witness
at the earliest, cannot render the evidence of a witness unworthy of
reliance only on that account.
16. In State of U.P. Vs. Satish (supra), Supreme Court
held “As regards delayed examination of certain witnesses, this
Court in several decisions has held that unless the Investigating
Officer is categorically asked as to why there was delay in
examination of the witnesses the defence cannot gain any advantage
therefrom. It cannot be laid down as rule of universal application
that if there is any delay in examination of a particular witness the
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prosecution version becomes suspect. It would depend upon several
factors. If the explanation offered for the delayed examination is
plausible and acceptable and the Court accepts the same is
plausible, there is no reason to interfere.” Since no explanation was
sought from the Investigating Officer about the delay in recording
the statement of this witness, we are unable to hold that the
evidence of this witness could be discarded merely on account of
delay in recording his police statement.
17. It is also true that Sheikh Shafique (PW12) stated that he
had gone to police station to lodge the report, but this fact was
belied by the evidence of ASI N.P.Tiwari (PW16), who categorically
stated that a brief information was given to him at police station by
some old man and he had recorded that information in the
Roznamcha. In our opinion, this discrepancy would not be sufficient
to discard the evidence of Sheikh Shafique altogether.
18. Evidence of Sheikh Shafique (PW12) further stands
corroborated by the evidence of Lalu (PW14), who stated that though
he saw about 20-25 persons assaulting the deceased, but out of them
only 8 persons were wielding the weapons and rest of other persons
were empty handed. He specifically said that Purushottam Patel had
a sword, Gajraj Patel had a farsa, Gulab Patel had a ballam, Noni
Patel had an axe, Rajaram had a sword and Ramlal had a gun.
Though this witness stated that the persons, who were empty handed
were also assaulting the deceased, but the trial Court did not find
that part of his evidence trustworthy as it was unnatural that when
the persons, who were armed with weapons and were assaulting the
deceased, other persons, who had no weapons, would also
participate in the assault.
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19. Trial Court, on appreciating the evidence of aforesaid
eyewitnesses, concluded that number of persons including other
accused persons had assembled for the purpose of resolving the
dispute in the panchayat, therefore, mere presence of all at the spot
along with accused persons cannot make them liable for commission
of the offence in the absence of proof of their sharing the common
object of causing death of Rafique. We are in agreement with the
aforesaid finding recorded by the trial Court. However, the presence
of accused/appellants with weapons at the spot indicates their
common object of causing death of Rafique. If at all they were
interested in resolving the dispute about the land, there was no
necessity for them to be armed with lethal weapons. From the
evidence of Sheikh Shafique (PW12), Kalu (PW13) and Lalu (PW14),
it is clearly established that appellants Purushottam, Noni, Ghassi,
Gulab, Gajraj and Rajaram formed an unlawful assembly at the spot
having common object to cause injuries to Rafique as a result of
which he died. The conclusion in that regard reached by the trial
Court appears to us just and proper and is, therefore, affirmed.
20. Next submission of the learned counsel for the appellants
has been that since no injury was caused by the appellants on any
vital part of the body of deceased, their conviction under section
304-I I.P.C. was not justified; at the most the appellants might be
held liable under section 304 Part II I.P.C. and their sentence be
reduced. On the other hand, learned counsel for the complainant,
submitted that on the basis of evidence of eyewitnesses and the
nature of injuries sustained by the deceased, it was clearly
established that accused persons were liable to be convicted under
section 302 I.P.C. as their intention to cause death of the deceased
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was clearly borne out. He, therefore, prayed that the case be
remanded to trial Court.
21. Learned counsel for the appellants submitted that none
of the injuries found on the body of deceased was sufficient in the
ordinary course of nature to cause death and that none of the
injuries was found on any vital part of the body of deceased. Dr.
Rakesh Bhardwaj (PW10) admitted that injuries no.3,4,5,6,7 & 8
found on the body of deceased were simple in nature. He admitted
that though injury no.9 was found on the occipital region of scalp but
since there was no fracture, it was also simple in nature. Only injury
no.1 & 2 were grievous in nature which were caused by sharp edged
weapon. Due to excessive haemorrhage from the injury no.1 & 2
deceased had gone in the state of shock which resulted into his
death. Doctor no where stated that the injuries, cumulatively, were
sufficient in the ordinary course of nature to cause death.
22. In case of Sarwan Singh Vs. State of Punjab (supra),
Supreme Court observed that ” if the injuries that are sufficient in
the ordinary course of nature to cause death are traced to a
particular accused, he will be guilty of an offence under section 302
without the aid of section 149 I.P.C. When the injuries caused are
cumulatively sufficient to cause death, it is necessary before holding
each of the accused guilty under section 302 read with section 149
to find that the common object of the unlawful assembly was to
cause death or that the members of the unlawful assembly knew it to
be likely that an offence under section 302 I.P.C. would be
committed in prosecution of the common object.” In the case of
Sarwan Singh (supra), numerous injuries were caused by sharp
edged weapon due to which injured had died, but the Apex Court in
view of the fact that the area of the injury could not be said to be a
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vital part of the body and the injury on the head was only 1/4″ in
depth and had not caused any damage, held that it cannot be said
that any of the persons that inflicted injuries intended to cause death
or such injuries as were sufficient in the ordinary course of nature to
cause death. On a consideration of the circumstances and the nature
of the injuries, it was not possible to hold that the common object of
the assembly was to cause bodily injury which was sufficient in the
ordinary course of nature to cause death. As such it could be said
that the common object of the assembly was to cause bodily injury as
was likely to cause death which will be an offence under section 304-
I I.P.C. However, sentence of accused was reduced to 5 years
rigorous imprisonment with fine.
23. In Molu and others Vs. State of Haryana (supra)
where one deceased suffered 14 injuries and another deceased
suffered 16 injuries including punctured wounds, Apex Court
observed that the injuries were caused by lathi and were of minor
character. Furthermore, the injuries were not on any vital parts of
the body and even those which were on the scalp portion appear to
be very superficial. There was nothing to show that the accused
intended to cause the deliberate murder of the two deceased
persons. There was no evidence to show that any of the accused
ordered the killing of the deceased persons or incited or in any way
expressed a desire to kill the deceased persons at the spot. In these
circumstances, it was held that there was no legal evidence in the
case that the accused intended to cause the murder of the deceased.
The fact, however, remains that the accused had caused multiple
injuries on both the deceased persons on various parts of their
bodies and, therefore, they undoubtedly had the knowledge that the
cumulative effect of the injuries would result in the death of the
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deceased. In these circumstances, accused had committed an offence
under section 304 Part II of the Indian Penal Code and not one under
section 302 I.P.C.
24. In Sitaram and others Vs. State of U.P. (supra), Apex
Court held “4. However, coming to the nature of the offence we find
it difficult to convict them under sections 302/149. The Doctor,
P.W.16 who conducted the post-mortem, found 28 injuries. Only the
first three lacerated injuries were on the head and punctured
wounds Nos. 5,6,7,11 and 12 were on the face but the Doctor did not
find any internal damage. The doctor noted that the teeth were
artificial and the denture was complete. Only three teeth of the
denture were broken. The Doctor even did not say that the injuries
cumulatively were sufficient in the ordinary course of nature to
cause death. There is no injury on any of the vital organs. This only
shows that the common object of the unlawful assembly was only to
belabour the deceased, the Manager of the Raja who was getting the
land ploughed and according to the accused the ploughing was being
done high-handedly. Under these circumstances, we are of the view
that it is not safe to convict the appellants under sections 302/149,
I.P.C. Accordingly, we set aside their conviction under sections
302/149, I.P.C. and sentence of imprisonment for life. Instead we
convict them under section 304, Part II, I.P.C. and sentence each of
them to undergo seven years R.I.”
25. After bestowing our anxious consideration to the
submissions made by learned counsel for the appellants and in view
of the legal position enunciated above, we are of the view that the
conviction of the appellants under section 304-I I.P.C. was not
justified, since neither any single injury found on the body was
sufficient in the ordinary course of nature to cause death nor the
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injuries found on the body, cumulatively, were sufficient in the
ordinary course of nature to cause death nor any injury was inflicted
on any vital part of the body of deceased. In these circumstances, in
our opinion, it could not be held that the injuries by the appellants
were caused with the intention of causing death or causing such
bodily injury as was likely to cause death of deceased. However,
since the appellants wielded weapons like sword, axe, farsa etc. it
can safely be held that they had knowledge that it was likely to cause
death of deceased. In these circumstances, the conviction of
appellants under section 304-I deserves to be altered to one under
section 304 Part II of the Indian Penal Code.
26. We, therefore, allow this appeal only to the extent that
the conviction of the appellants is altered from that under section
304-I/149 to under section 304 Part II/149 I.P.C. and their sentences
are reduced from 10 years rigorous imprisonment to 7 years
rigorous imprisonment. Sentence of fine of Rs.20,000/- each is also
reduced to Rs.10,000/- per head and in default of payment of fine,
appellants shall undergo further rigorous imprisonment for a period
of one year. Conviction and sentence of appellants under section 148
I.P.C. is also affirmed. Sentence of imprisonment on both the counts
shall run concurrently.
27. In the result, Criminal Appeal No.2015/2006 is partly
allowed and Criminal Revision No.2232/2006 is dismissed.
(Rakesh Saksena) (S.C.Sinho)
Judge Judge
b
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