Gulab Prasad And Anr. vs The State Of M.P. on 3 October, 2017

[Cites 13, Cited by 2]

Madhya Pradesh High Court

Gulab Prasad And Anr. vs The State Of M.P. on 3 October, 2017

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellants/accused persons against the judgment and conviction dated 04th December, 2004, passed by First Additional Sessions Judge, Rewa in S.T. No.204/2003, whereby the appellants/accused persons have been convicted for commission of offences punishable under -2 - Cr. A. No.96/2005 Section 302/34 and sentenced to undergo life imprisonment and fine of Rs.500/- and Section 323/34 of IPC and sentenced to undergo R.I for three months and fine of Rs.100/- each with default stipulation.

2. The prosecution story in nutshell is that on 08.08.2003 in the village Amaliya around 12 O' clock afternoon, complainant Ramadhar was grazing his cattle in the field near his house, seeing this appellant Gulab Prasad Dwivedi came there and asked Ramadhar to remove the cattle from his field. He claimed that the field belongs to him. Ramadhar refused to remove the cattle and a hot talk and verbal altercation took place between them. Meanwhile deceased Ashok, son of Ramadhar also reached on the spot and joined the quarrel. Thereafter, Gulab Pd. went to his house threatening Ramadhar to see the consequence. After 15 - 20 minutes, appellant, Ramadhar, his son Dharmendra and other accused persons Ram Lal, Praduman, Vikal and Virendra, armed with lathis came there, and started abusing Ramadhar and Ashok. Hearing the noise of quarrel, witnesses Nagendra and Prem Naraya came on the spot. Appellants Dharmendra and Gulab assaulted Ashok and Ramadhar by lathi. Witness Nagendra and Prem Narayan tried to intervene and save Ramadhar then they have also been assaulted by Ram Lal, Praduman Dhar and Vikal. Ramadhar and witnesses shouted for help, hearing the cry, Krishan Kant, Ram Padarath, Anil Kumar and Ram Bhuwan reached on the spot. Ashok had sustained fatal injuries on his head and became unconcious. After the incident appellants and other co-accused persons ran away from the spot.

3. As per prosecution Ramadhar lodged FIR (Ex.P/1) at Police Station Chakghat. Police registered the offence and -3 - Cr. A. No.96/2005 sent Ashok, Ramadhar, Prem Narayan and Nagendra for medical examination and treatment to Community Health Centre, Chakghat. Dr. A. P. Mishra (PW-7) examined them and referred Ashok to S.G.M.H Hospital, Rewa for further treatment. Ashok was brought to Rewa where doctors declared him dead. An intimation of his death was sent from hospital to Police Outpost S.G.M.H Rewa, where merg intimation (Ex.P/10) was recorded and Radha Raman Pandey, Sub Inspector (PW-9) conducted the inquest. He prepared panchanama (Ex.P/13) of dead body and sent it for postmortem. Dr. S.K. Pathak (PW-15) performed the postmortem and found multiple fractures on head of Ashok that resulted in his death. The inquest report was sent to Police Station Chakghat where police registered offence under Section 302 of IPC against the accused persons. During investigation the spot map was prepared, red earth and plain earth was seized and on memorandum statement of appellants and other co-accused persons the lathies were recovered and seized, the statements of witnesses were recorded and after usual investigation the charge-sheet has been filed against appellants and co-accused Ram Lal and Praduman Dhar in the Court. Other co-accused Vikal alias Vimal and Virendra alias Dhirendra were found juvenile and separate charge-sheet has been filed against them before juvenile Court.

4. The trial Court has framed the charge of offence punishable under Sections 147, 149, 302/149 and 323/149 of IPC against the appellants and other co-accused persons. The appellants abjured guilt and pleaded innocence. The prosecution has examined 15 witnesses whereas the appellants had examined 2 witnesses in their defence.

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5. Learned trial Court on appreciation of evidence adduced by the prosecution arrived at the conclusion that it is not proved that the appellants and other co-accused persons have formed unlawful assembly to commit murder of deceased. The trial Court found that the appellants Gulab Pd. and his son Dharmendra had assaulted the deceased Ashok with common intention to kill him and thereby committed his murder. Appellants have also assaulted complainant Ramadhar, Nagendra, Prem Narayan in furtherance of their common intention and caused simple injuries to them. Thus, the trial Court held appellants guilty for commission of offence punishable under Section 302/34 and 323/34 of IPC. Other co-accused Ram Lal and Pradmun Dhar were convicted for causing injuries to complainant and witnesses under Section 323/34 of IPC.

6. It is argued by the learned counsel for the appellants that the land where the complainant was grazing his cattle belongs to appellant Gulab. He had raised a crop of gram there, which was being destroyed by the cattle. When Gulab objected to it and asked the complainant to take away the cattle out of field, complainant and his son deceased Ashok and other family members assaulted Gulab by lathi and inflicted injuries. During this quarrel, the deceased himself received injuries by complainant who was trying to beat the appellant. Thus, the appellants have right of private defense of their property. The prosecution has given no explanation of the injuries sustained by the appellant Gulab. The entire case of prosecution becomes suspicious on this count. There are material contradiction and discrepancies found in the statements of prosecution witnesses. They are members of one family and interested one. The trial Court has wrongly -5 - Cr. A. No.96/2005 relied upon the testimony of these interested prosecution witnesses and committed error in holding the appellants guilty for commission of alleged offence. The Trial court has also committed error in denying the right of private defence of property to appellants.

7. We have heard the learned counsel for the parties and perused the record.

8. It is not denied that at the time of incident complainant Ramadhar, his son Ashok and other witnesses Nagendra and Prem Narayan had sustained injuries. Ramadhar (PW-1) lodged the FIR (Ex.P/1) at Police Station Chakghat. Kamta Prasad (PW-8) Head Constable recorded the FIR and sent the injureds for MLC to Community Health Centre, Chakghat. This fact is duly proved by witnesses Ramadhar (PW-1), Nagendra (PW-11), Prem Narayan (PW-2) and Kamta Prasad (PW-8) Head Constable.

9. Dr. A.P. Mishra (PW-7) deposed that on 08.08.2005 at CHC, Chakghat he had examined Ashok Kumar, Prem Narayan, Ramadhar and Nagendra. Ashok had sustained grievous injuries and he was unconscious. He had received following injuries:-

      i.      Huge swelling on and around right eye.
      ii.     Contusion 9 X 1'' on upper abdomen. Horizontally
      placed, bluish in color.
      iii.    Contusion 8 X 1" on abdomen just below injury

No.ii horizontally placed bluish in color.

iv. Swelling on dorsal aspect of left hand.

All the injuries are caused by hard and blunt object within 12 hours of examination.

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10. It is further deposed by Dr. A.P. Mishra that on examination of Prem Narayan he found a lacerated wound size 3 X 1" cm on left parietal region of scalp vertically placed and abrasion 1 X ½ cm on tip of right little finger. On examination of Ramadhar he found one lacerated wound size 5 X 1 X 1 cm on left parietal region of scalp horizontally placed, one abrasion on left shoulder 2 X 1 cm and one abrasion on left elbow. 1.5 X 1 cm. On examination Nagendra he found swelling on right leg and left wrist. It is opined by the doctor that all the injuries were caused by hard and blunt object. The statement of doctor is duly corroborated by MLC reports (Ex.P/4, P/5, P/6 and P/7) given by him. He has further deposed that looking to the serious condition of Ashok he had referred him for S.G.M.H Rewa for further treatment. In cross-examination the defense has not challenged the injuries and the findings recorded by the doctor, therefore, it is rightly found proved by the trial Court that at the time of incident the deceased Ashok and witnesses Ramadhar, Nagendra and Prem Narayan had received injuries by hard and blunt object like lathi.

11. From the evidence adduced by the prosecution it is found that later on Ashok was brought to S.G.M.H Rewa for treatment where the doctors have found him dead. An intimation of his death (Ex.P/11) was sent to Police Outpost S.G.M.H Hospital Rewa where a Marg intimation (Ex.P/10) was recorded on 08.08.2003 and Radha Raman Pandey (PW-

9) Sub Inspector prepared panchanama of dead body (Ex.P/13) and sent it for postmortem.

12. Dr. S.K. Pathak (PW-15) deposed that on 09.08.2003 at S.G.M.H Rewa he had performed postmortem of dead body of deceased Ashok and found following injuries:-

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i. Contusion over left fronto parietal bone 4 X 2" . ii. Contusion over right fronto parietal bone 3 X 2" . iii. Contusion over top of occipital region 2 X 1" .

iv. The blood was oozing from nose and mouth and left eye was blackened. On internal examination it is found that there was fracture of left parietal bone and extra dural hemotoma were found below right frontal bone and left parietal bone size 3 X 2" and 6 X 4" respectively.

It is opined by the doctor that the death was caused due to injuries of head. The statement of doctor is duly corroborated by postmortem report (Ex.P/13). Thus, the learned trial Court has rightly relied upon the statement of doctor and postmortem report and arrived at the conclusion that the deceased Ashok had expired due to injuries caused to him at the time of incident.

13. Now the question arises whether the appellants have formed the common intention to murder the deceased and assaulted him. The prosecution has examined Ramadhar (PW-1), Prem Narayan (PW-2) Ram Padarath (PW-3), Krishan Kant (PW-4), Lal Mani Mishr (PW-5) and Nagendra Prasad (PW-11) as eye witness to the incident. Nagendra Prasad is son of the complainant Ramadhar and other witnesses are also their close relatives. Ramadhar (PW-1) deposed that at the time of incident around 12 O' clock afternoon he was grazing the cattle on his field Khasra No.58. The appellant Gulab Prasad came there and asked him to remove his cattle from the field as it belongs to him. Ramadhar told him that this is his field where the cattle are grazing. A hot talk and heated arguments took place between them, meanwhile the deceased Ashok also arrived there. Appellant Gulab left the -8 - Cr. A. No.96/2005 field and went towards his house threatening the complainant to face the consequences. After 15 minutes, appellant Gulab Prasad, Dharmendra, Ram Lal, Virendra, Vikal and Praduman Dhar armed with lathis came back on the field and started abusing Ashok and Ramadhar. It is deposed by the witness that Dharmendra gave a blow of lathi on left hand of Ashok, Ramadhar tried to save Ashok, Dharmendra inflicted a blow of lathi on head and shoulder of Ramadhar. Thereafter, Gulab had inflicted blows of lathi on face of Ashok. Appellant Gulab exhorted to beat Ashok and all accused persons had assaulted Ashok by lathi. Gulab made a shouted for help, hearing this his nephew Prem Narayan and son Nagendra reached on the spot. Accused Praduman Dhar and Vikal assaulted Prem Narayan by lathi. Hearing hue and cry the witnesses Ram Bhuwan, Ram Padarath, Krishan Kant and Lal Mani came on the spot. The appellants ran away. Ashok and other injured witnesses were brought to Police Station Chakghat where Ramadhar lodged the FIR (Ex.P/1).

14. In cross-examination para-12 this witness Ramadhar has admitted that after sustaining injuries on his head he fell down and thereafter he could not see who had assaulted the deceased. There are substantial improvement and exaggeration found in the statement of this witness from his police statement (Ex.D/1). But, we can rely on his statement that,who saw the appellant Dharmendra inflicted one blow of lathi on left hand of Ashok. The injuries on head of Ashok had been caused by Gulab.

15. Another witness Prem Narayan (PW-2) deposed that hearing the hue and cry, he arrived on the scene of occurrence. He saw Ashok giving a blow of lathi on hand of -9 - Cr. A. No.96/2005 Ashok thereafter he assaulted Ramadhar on his head. Appellant Gulab had assaulted Ashok on his face by lathi. When he tried to intervene the accused Praduman Dhar assaulted him by lathi on his head and hands. Accused Ram Lal and Vikal had assaulted Nagendra by lathi. Similar statement has been given by Ram Padarath (PW-3), Krishan Kant (PW-4), Lal Mani Mishr (PW-5) and Nagendra (PW-11) also.It appears that hearing the hue and cry they have reached on the spot during quarrel. Nagendra (PW-11) deposed that appellant Dharmendra inflicted a blow of lathi on left hand of Ashok and also inflicted injury on head of Ramadhar when he tried to save Ashok. Seeing quarrel Nagendra tried to intervene than he was assaulted by Dharmendra and Virendra.

16. The witnesses Ramadhar, Prem Narayan and Nagendra had received injuries during the quarrel, this fact is duly verified by their MLC reports (Ex.P/5, P/6 and P/7). Thus, the presence of these witnesses at the time of incident can be believed. On careful scrutiny of the evidence of witnesses Ramadhar (PW-1), Prem Narayan (PW-2), Ram Padarath (PW-3), Krishan Kant (PW-4), Lal Mani Mishr (PW-5) and Nagendra (PW-11), it appear that at the time of incident the appellant Dharmendra had inflicted only one injury on the left hand of deceased Ashok. The injuries on the head of the deceased had been caused by appellant Gulab. In postmortem also three contusions were found on the parietal and occipital region of head of the deceased and these injuries resulted into fracture of fronto parietal and occipital bone. The injuries on left hand of the deceased was not fatal or grievous one. Thus, it is clear that the deceased has been -10 - Cr. A. No.96/2005 died due to injuries inflicted by the appellant Gulab on his head by lathi.

17. Complainant Ramadhar (PW-1), Prem Narayan (PW-2), Ram Padarath (PW-3) and Krishan Kant (PW-4) deposed that at the time of incident Ramadhar was grazing his cattle on the field. Appellant Gulab objected to it and asked him to remove the cattle from his field. Gulab told that this land belongs to him. Thus, the dispute arose due to grazing of cattle by complainant. Although, Ramadhar (PW-1) has stated in his evidence that he was grazing the cattle on his field Khara No.58, but this fact is not mentioned in his report (Ex.P/1) and police statement (Ex.P/2). Other prosecution witnesses are not able to state the Khasra number of the land where the cattle were grazing. Patwari Ram Kripal Saket (PW-13) had prepared the map of scene of occurrence (Ex.P/33 and P/34). Ram Kripal deposed that the incident occurred in the land Khasra No.66 which belongs to Gulab Prasad. The land was recorded in the name of Gulab and was under his possession. At the time of incident the crop of Arhar and Juar were sown on the field, which was found grazed by animals. Thus, the evidence of Patwari Ram Kripal supports the defense and corroborates the fact that the complainant was grazing the cattle on the field of appellant Gulab.

18. This is settled law that the onus of proof to establish the right of private defence is not as onerous as that of the prosecution to prove its case. And where the facts and circumstances lead to preponderance of probabilities in favour of the defence case, it would be enough to discharge the burden to prove the case of self-defence.

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19. The defense witness Amar Nath (DW-1) and Deepak Prasad (DW-2) deposed that hearing the noise of the quarrel they arrived on the spot and found the quarrel between complainant and accused persons were taking place on the field of appellant Gulab. Deepak Prasad has his field Khasra No.44 adjacent to the disputed land Khasra No.66, where the incident took place. Thus, from the evidence of defence witness and prosecution witness Patwari Ram Kripal Saket (PW-13) it is proved that at the time of incident the complainant was grazing his cattle on the field of appellant Gulab where he has raised the crop.

20. Naturally seeing his crop damaged by the cattle, appellant Gulab had raised objection and tried to remove the cattle out of his field. When complainant Ramadhar and his nephew Ashok refused to take away the cattle from the field Gulab went to his house and came back with other accused persons armed with lathi. The evidence on record clearly establishes that appellant Gulab, Dharmendra and other accused persons have tried to remove the cattle from their field and at that time there was exchange of words which resulted in altercation and during said altercation appellant attacked deceased and other witness Ramadhar. Thus, it can be inferred that the intention of appellant Gulab and Dharmendra was to cause injuries to Ashok and Ramadhar in order to prevent their cattle to graze and destroy the crop of appellants. Dharmendra had inflicted only one injury on the left hand of Ashok. If he had intention to kill him he would have inflicted more blows of lathi on person of deceased. There is no evidence to show that appellants have exhorted or threatened to kill the deceased. The injury inflicted on hand of the deceased is not found grievous in postmortem -12 - Cr. A. No.96/2005 report. Therefore, it cannot be inferred that the appellant Dharmendra had shared common intention to kill the deceased Ashok. The trial Court on erroneous appreciation of evidence had arrived at the conclusion that Dharmendra had shared common intention with main appellant Gulab to kill the deceased. See case law Surat Sing v. State of Punjab AIR 1977 SC 705.

21. As far as intention of appellant Gulab is concerned we cannot say that he had intention to kill the deceased. It is also pertinent to mention that at the time of incident Gulab had also received a lacerated wound on his hand. The prosecution has given no explanation to his injury. No doubt prosecution is under duty to explain the injuries on the accused person but non-explanation of injuries of the accused person does not necessarily lead to the conclusion that the prosecution case is false and must be thrown out.

22. From the evidence on record, it appears that, appellant Gulab had assaulted the deceased Ashok in order to save his crop. Although, he has right to defend his property but assaulting an unarmed man with lathi and inflicting three injuries on the head of the deceased clearly indicates that he has intention to cause injury, which is likely to cause death. He has exceeded the right of private defence. Thus, the act of appellant Gulab comes under Section 304 part-I of IPC.

23. In the case law Arjun and another Vs. State of Chhattisghar (2017) 3 SCC 247 the deceased and other witnesses were cutting trees, there was exchange of words, which resulted in altercation and during said altercation appellants attacked deceased. Appellants had weapons in their hand, but the sequence of events narrated by the witnesses only shows that weapons were used during -13 - Cr. A. No.96/2005 altercation in a sudden fight and there was no premeditation. In the light of aforesaid facts Hon'ble Apex Court in para 23 observed as under:-

"23. When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC."

24. In present case also Gulab had caused three wounds on the head of deceased. In view of aforesaid discussion, it is found that the common intention of appellants was only to cause injuries to deceased in order to restrain them from damaging the crop of appellant by grazing of cattle. They have no intention to kill the deceased. Therefore, the trial Court has wrongly convicted the appellants under Section 302/34 of IPC. The appellant Gulab is held guilty for commission of offence punishable under Section 304 Part I of IPC and Section 323/34 of IPC for causing injuries to other witnesses Ramadhar, Nagendra and Prem Narayan. Another appellant Dharmendra has no intention to cause death of the deceased Ashok, he had inflicted simple injury to him. Therefore, his conviction and sentence inflicted by the trial Court under Section 302/34 of IPC is hereby set-aside. He is acquitted of the charge of offence punishable under Section 302/34 of IPC. Appellant Dharmendra is held guilty for causing simple injuries to Ashok, Ramadhar, Nagendra and Prem Narayan, which is punishable under Section 323/34 of IPC.

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25. Thus, the appeal is partly allowed. The conviction of appellant Gulab is altered from offence punishable under Section 302/34 IPC to Section 304 Part I of IPC. He has already suffered the imprisonment more then 14 years in jail. Therefore, he is sentenced to imprisonment already undergone by him. Similarly, he is also convicted under Section 323/34 of IPC and sentenced to undergo imprisonment of three months. Both the sentences shall run concurrently. As appellant has already undergone his sentence, therefore, he be released from jail forthwith if not required in any other case.

26. Similarly, the appellant Dharmendra is acquitted of the charge of offence punishable under Section 302/34 of IPC. He is convicted under Section 323/34 and sentence to undergo imprisonment for three - three months on each count. All sentence shall run concurrently. As appellant has already undergone more than five months in custody, therefore, giving benefit of set off under Section 428 of Cr.P.C he be released. As he is already on bail, therefore, his bail bond shall stand discharged.

          (S.K. Gangele)                                (Anurag Shrivastava)
              Judge                                            Judge

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