Madhya Pradesh High Court
Harinarayan vs State Of M.P. on 23 September, 2017
Bench: Sanjay Yadav, Ashok Kumar Joshi
1 Cr.A. No. 603/08 & 898/08
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH:
HON'BLE SHRI JUSTICE SANJAY YADAV
&
HON'BLE SHRI JUSTICE ASHOK KUMAR JOSHI
Criminal Appeal No.603/2008
Harinarayan
Vs.
State of Madhya Pradesh
AND
Criminal Appeal No. 898/2008
Balveer
Vs.
State of Madhya Pradesh
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Shri A.K. Jain, learned counsel for the appellants.
Shri S.S. Dhakad, Public Prosecutor for the respondents/State.
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Whether approved for reporting : Yes/No
JUDGMENT
(23.09.2017) Per Justice Sanjay Yadav:
These two appeals are directed against the judgment dated 31.07.2008 passed in Special Case No. 14/2008, whereby the appellants having been found guilty of the offences under Sections 302, 326/34 of IPC were convicted and sentenced to life imprisonment for causing murder of Amru and five years sentence for causing grievous injuries to Ramesh (PW-3) and Paatiram (PW-2).
(2) The prosecution story reveals that the deceased Amru along with the complainant Babu Adiwasi (PW-1), Ramesh (PW-3) and Paatiram (PW-2) on 26.09.2007 while coming back from the village market met the appellants near the agricultural field where soyabeen was sown. That appellant Balveer was 2 Cr.A. No. 603/08 & 898/08 carrying lathi whereas Harnam alias Harinarayan Sahu was carrying "sariya" (iron rod). That Amru asked for the wages on behalf of his wife, who had worked in Balveer's field, whereon Balveer got infuriated and inflicted blows with lathi. That when Babu (PW-1), Paatiram (PW-2) and Ramesh (PW-3) interfered, they were also given beating with lathi and saria by both the appellants. As a result whereof, Amru succumbed to the injuries whereas Babu (PW-1), Paatiram (PW-2) and Ramesh (PW-3) who sustained injuries. While running away from the place fell on their way. The complaint lodged by Babu (PW-1) was registered as Dehati Nalishi (Ex. P/24) on the basis whereof FIR (Ex. P/25) was registered. Police party was deployed. Investigation was set in motion. Spot maps and inquest were prepared (Ex. P/12, P-
13, P/14). Blood stained soil of the deceased was seized vide Ex. P/15, whereas of injured Paatiram (PW-2) and Ramesh (PW-3), the blood stained soil was collected vide Ex. P/16 and P/17. The body of Amru was sent for postmortem. The postmortem was conducted by Dr. S.K. Shainde (PW-9), who gave the report Ex. P/11, wherein following injuries were noticed on the body of the deceased:-
"1. External Injury - Lacerated wound 4x2x1 cm left temporal region.
2. Lacerated wound 2x2x1 cm above upper lib with and compound fracture of upper jaw with loose of incise and canine tooth.
3. Lacerated wound above left eyebrow with compound fracture of left orbite and laceration of left eye wall. (2x2x1 cm size)."
(3) As per doctor's opinion, the cause of death was coma due to head injury.
(4) The injuries on Paatiram (PW-2) and Ramesh (PW-
3) were examined by Dr. S.K. Shainde (PW-9). As per Ex. P/8 following injuries were found on the body of Paatiram (PW-2):-
"1. incise wound 4x2x1 cm right side chin.
2. incise wound 2x1x1 cm right side 3 Cr.A. No. 603/08 & 898/08 mouth
3. incise wound 2x1x1 cm lateral to right eye.
4. incise wound 3x2x1 cm right side vertex
5. incise wound 2x1x1 cm let side chin
6. incise wound 1x1/2x1/2 cm lateral to left eye."
And vide Ex. P/9, Ramesh (PW-3) was found having sustained following injuries:-
"1. incise wound 1x1/2x1/2 cm above right eyebrow.
2. incise wound 2x1x1/2 cm above left eyebrow.
3. incise wound 1x1/2x1/2 cm upper lib.
4. incise wound 2x1x1/2 cm back of head.
5. swelling and contusion on doram of left hand."
(5) The accused were arrested. After necessary investigation charge-sheet was filed. The case was committed for trial. Appellants abjured their guilt and stated that they are falsely implicated.
(6) Prosecution examined 12 witnesses, out of these Babu (PW-1), Paatiram (PW-2) and Ramesh (PW-3) were examined as the eyewitnesses, the doctor who conducted the postmortem and examined the injured victims was examined as Dr. S.K. Shainde (PW-9). Dr. Ved Prakash Narve, Assistant Professor who treated Ramesh (PW-3) was examined as PW-11. (7) The defence that as the incident is of night and the police has not seized the articles said to have been purchased by the victims from the market, therefore, there was the possibility that victims were looted by unknown persons and the accused are falsely implicated was discarded by the trial Court on the findings that the assailants, i.e., accused persons and the victims were the residents of same village and were known to each other. And the eyewitness's count corroborated with the 4 Cr.A. No. 603/08 & 898/08 medical evidence cannot be discarded merely because the police had not seized the articles said to have been purchased by the victims from the market.
(8) The trial Court also discarded the contention of sudden fight and that the incident could be brought within exception four of Section 300 of IPC by taking into consideration the nature of injuries sustained by the deceased. (9) The trial Court further discarded the contention that as no injury by sharp edged weapon was found on the body of the deceased, accused No. 2 Harinarayan, who as per evidence on record was carrying Bhaliya which is a sharp edged weapon cannot be held guilty of causing murder of Amru. The trial Court found that both the accused were sharing common object, therefore, the accused Harinarayan does not get any benefit of having not inflicted any injury to the deceased Amru. (10) Consequently, the trial Court held both the accused persons guilty of causing murder of Amru and grievous and simple injuries to Paatiram (PW-2) and Ramesh (PW-3) and convicted and sentenced them for life and 5 years' and one year's respectively with fine of Rs.2,000/-, Rs.1,500/- and Rs.500/- each.
(11) We have heard the learned counsel for the parties and perused the record.
(12) It is first contended on behalf of the appellants that non-seizure of any article of food or vegetable said to be purchased by the victims by the police from the spot from where they collected the blood stained earth creates a doubt to the entire story by the police. Babu (PW-1) who is the complainant in his cross-examination in paragraph 5 stated that the "Potli" in which they were carrying the vegetable and grocery fell at the place of occurrence of crime. He stated that:-
^^5- ------eSa vkSj ve: nksuksa gh viuk [kjhnk x;k lkeku vius&vius lkFk iksVyh esa cka/kdj yk jgs FksA ve:5 Cr.A. No. 603/08 & 898/08
dh vkSj esjh iksVyh ogha ?kVuk LFky ij fxj xbZ FkhA eq>s og iksVyh esjh vkSj ve: dh ugha feyhA^^ That PW-2 the injured victim in paragraph 9 of his cross- examination stated:-
^^9- ;g lgh gS fd ekjihV djus okys esjk lkek] ve: dk lkeku] jes'k dk lkeku vkSj ckcw dk [kjhnk x;k lkeku ys x;s FksA^^ As the accused person had carried away the "Potli" non-recovery was as natural as the collecting of blood stained earth from the spot, where the crime was committed, as would be of any assistance to the appellant. Nor does it create any doubt about the appellants commissioning of crime. (13) The next contention is that there was a sudden fight at the spot and because being provoked the accused persons lost their balance of mind and as the incident was in spur of moment without any motive, appellants are entitled for benefit of exception 4 of Section 300 of IPC.
(14) Exception 4 to Section 300 of IPC provides:-
"Exception 4 : Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in a cruel or unusual manner."
(15) In Surinder Kumar Vs. Union Territory, Chandigarh [(1989) 2 SCC 217] it is held:-
"7. To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation;
(iii) the act was done in a heat of passion; and
(iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the 6 Cr.A. No. 603/08 & 898/08 offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner.
Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly....."
(16) In Arumugam Vs. State represented by Inspector of Police Tamil Nadu [(2008) 15 SCC 590], it is held:-
"9. The substantive plea relates to the applicability of Exception 4 of Section 300 IPC. For bringing in its operation it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passion upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner.
"17. The Fourth Exception of Section 300 IPC covers acts done in a sudden fight. The said Exception deals with a case of prosecution (sic provocation) not covered by the First Exception, after which its place would have been more appropriate. The exception is founded upon the same principle, for in both there is absence of premeditation. But, while in the case of Exception 1 there is total deprivation of self- control, in case of Exception 4, there is only that heat of passion which clouds men's sober reason and urges them to deeds which they would not otherwise do. There is provocation in Exception 4 as in Exception 1; but the injury done is not the direct consequence of that provocation. In fact Exception 4 deals with cases in which notwithstanding that a blow may have been struck, or some provocation given in the origin of the dispute or in whatever way the quarrel may have originated, yet the subsequent conduct of both parties puts them in respect of guilt upon equal footing. A `sudden fight' implies mutual provocation and blows on each side. The homicide committed is then clearly not traceable to unilateral provocation, nor in such cases could the 7 Cr.A. No. 603/08 & 898/08 whole blame be placed on one side. For if it were so, the Exception more appropriately applicable would be Exception 1.
There is no previous deliberation or determination to fight. A fight suddenly takes place, for which both parties are more or less to be blamed. It may be that one of them starts it, but if the other had not aggravated it by his own conduct it would not have taken the serious turn it did. There is then mutual provocation and aggravation, and it is difficult to apportion the share of blame which attaches to each fighter.
18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the `fight' occurring in Exception 4 to Section 300 IPC is not defined in the IPC. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression `undue advantage' as used in the provision means `unfair advantage'.
19. Where the offender takes undue advantage or has acted in a cruel or unusual manner, the benefit of Exception 4 cannot be given to him. If the weapon used or the 8 Cr.A. No. 603/08 & 898/08 manner of attack by the assailant is out of all proportion, that circumstance must be taken into consideration to decide whether undue advantage has been taken. In Kikar Singh v. State of Rajasthan (AIR 1993 SC 2426) it was held that if the accused used deadly weapons against the unarmed man and struck a blow on the head it must be held that using the blows with the knowledge that they were likely to cause death, he had taken undue advantage."
(17) In the case at hand, the nature of injuries sustained by the deceased and the injured victims suggests the gruesome act on behalf of the appellants. It is not that a single blow with lathi has resulted in death. There are multiple injuries caused on the vital parts of the deceased as also to the injured persons who having succeeded to run away from the place could save their lives. Therefore, it cannot be said that it was not a cruel act on the part of these appellants as would benefit them from exception four to Section 300 of IPC or of Section 304 of IPC. (18) As to the contention that there was no motive or that the injuries were caused because of sudden fight is also not substantiated from the direct evidence on record that the deceased, who met the appellants on his way home from the market place had asked for the remuneration for the work rendered by his wife in appellant No. 1's agricultural field. There is no evidence of altercation. But with the demand raised, the appellants got infuriated and inflicted multiple blows on the deceased and the persons accompanying him, viz Paatiram (PW-2) and Ramesh (PW-3). Therefore, the contention that there was no motive or there was a sudden fight on being provoked deserves to be negatived.
(19) Further contention as to the role of Harinarayan, appellant No. 2 that he was carrying a "Bhaliya" which is a sharp edged weapon and no injuries by a sharp edged weapon is 9 Cr.A. No. 603/08 & 898/08 found on the body of the deceased, he is entitled to be acquitted of the charges of murder, though sounds attractive but deserves to be discarded in the teeth of evidence on record that both the appellants shared common intention. It is clear from the evidence of eyewitness Babu (PW-1), Paatiram (PW-2) and Ramesh (PW-3). That, when each one of them came forward to protect Amru (the deceased) from the beating given by appellant No. 1 who exhorted that he (appellant No. 1) will kill him (Amru), appellant No. 2 prevented them from protecting Amru by causing grievous multiple injuries with the sharp edged weapon. On the contrary, it was incumbent upon him to have prevented appellant No. 1 from commission of offence.
(20) In Jumman and others Vs. The State of Punjab [AIR 1957 SC 469], it is observed that common intention can be inferred from presence only when there is some circumstances to show that it was for the purpose of lending weight to the active participants in the crime.
(21) In Ram Tahal and others Vs. State of Uttar Pradesh [AIR 1972 SC 254], it is held:-
"6.......There is no doubt that a common intention should be anterior in time to the commission of the crime showing a prearranged plan and prior concert, and though, it is difficult in most cases to prove the intention of an individual, it had to be inferred from the act or conduct or other relevant circumstances of the case. This inference can be gathered by the manner in which the accused arrived on the scene and mounted the attack, the determination and concert with which the beating was given or the injuries caused by one or some of them, the acts done by others to assist those causing the injuries the concerted conduct subsequent to the commission of the offence for instance that all of them had left the scene of the incident together and other acts which all or some may have done as would help in determining the common intention. In other words, the totality of the circumstances must be 10 Cr.A. No. 603/08 & 898/08 taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence with which they could be convicted. This Court had in Krishna Govind Patil's case, (1964) 1 SCR 678 = (AIR 1963 SC 1413) already referred to earlier, held that the prearranged plan may develop on the spot during the course of the commission of the offence but the crucial circumstance is that the said plan must precede the act constituting the offence. If that be so before a Court can convict a person under Section 302 or S. 304 read with S. 34 of the I.P.C. it should come to a definite conclusion that the said person had a prior concert with one or more persons named or un- named for committing the offence. ."
(Emphasis Supplied) (22) In Sivam Vs. State of Kerala [AIR 1978 SC 1529], it is held:-
"2. The only point that was argued before us by Mr. Sarathi, the learned counsel for the appellant, was that the evidence does not show that the appellant had a common intention to cause the death of the deceased. In the circumstances of this case, however, we are unable to accept the argument of the learned counsel for the appellant. The accused knew well that A. 1 and others were armed and that A. 1 had caused sword injuries on vital parts of the body of the deceased in the verandah of courtyard and he himself aided accused A.1 by giving blows to the deceased on some vital parts of the body like chest. Not content with this the appellant also participated in chasing the deceased where further injuries were given to the deceased after a call by A. 2 to kill the deceased. In these circumstances, we are satisfied that the appellant clearly shared a common intention to cause the death of the deceased along with accused Nos. 1 to 3. In these circumstances we find no merit in this appeal which is accordingly dismissed ."
(23) In Aher Pitha Vajshi and others Vs. State of Gujarat [AIR 1983 SC 599], it is held:-
11 Cr.A. No. 603/08 & 898/08"6. Learned counsel for the appellants has contended that all the four appellants may not have shared the common intention. We are unable to countenance this submission. The evidence shows that all the four appellants were acting in concert in dragging Nabha Ram inside the Deli. The evidence clearly establishes that all the four persons were concerned in the act of throwing the victim on the road in front of the Deli after the assault. Of course no prosecution witness could have witnessed what transpired inside the Deli because the doors of the Deli were closed after Nabha Ram was dragged inside. Appellants were acting in concert and were associated with each other in initially dragging Nabha inside the Deli as also in throwing out Nabha on the road in front of their Deli after he was assaulted inside the Deli. The circumstances which has been established by satisfactory evidence coupled with the circumstance that as many as 20 injuries of the nature described earlier were inflicted on the deceased, leaves no room for doubt that all the appellants had shared the common intention to cause the death of Nabha Ram."
(24) In Dukhmochan Pandey and others Vs. State of Bihar [(1997) 8 SCC 405], it is held:-
"6. .........The existence of a common intention between the participants in a crime is an essential element for attracting Section 34 of the Indian Penal Code and such intention could be formed previously or on the spot during the progress of the crime. Usually it implies a pre- arranged plan which in turn presupposes a prior meeting of mind. But in a given case such common intention may develop at the spur of the moment in course of the commission of offence. But such common intention which developed at the spur of the moment is different from a similar intention actuating a number of persons at the same time, and therefore, the said distinction must be borne in mind which would be relevant in deciding whether Section 34 of the Indian Penal Code can be applied to all those who might have made some over attack on the spur of the moment. (See Kripal 12 Cr.A. No. 603/08 & 898/08 and others vs. State of Uttar Pradesh. A.I.R. 1954 S.C. 706 Pandurang, Tukia and Bhillia vs. The State of Hyderabad, 1955 (1) S.C.R. 1083 and Mohan Singh vs. State of Punjab, 1962 supp (3) S.C.R. 848). The distinction between a common intention and a similar intention may be fine, but is nonetheless a real one and if overlooked, may lead to miscarriage of justice........."
(25) In view of the law laid down trite it is that the totality of the circumstances must be taken into consideration in arriving at the conclusion whether the accused had a common intention to commit an offence. In the case at hand, the prosecution having succeeded in establishing through eyewitnesses and other material evidence that the appellant No. 2 instead of preventing the commission of offence actively participated in it had shared the common intention with the appellant No. 1. (26) Consequently, since the trial Court did not err in appreciating the entire material evidence in recording the guilt of the appellants and convicting and sentencing them for the offences under Sections 302, 326/34, 323 of IPC as would warrant any indulgence.
(27) In the result, appeal fails and is dismissed. The bail bonds of the appellant Harinarayan alias Harnam of Criminal Appeal No. 603/2008 shall stand cancelled. He should surrender before the CJM, Shivpuri failing which the police is directed to arrest him and send him to judicial custody to undergo remaining sentence.
(28) Let the copy of judgment be transmitted to the CJM, Shivpuri.
(Sanjay Yadav) (Ashok Kumar Joshi)
Judge Judge
Abhi