Madhya Pradesh High Court
Mangalsingh And Ors. vs State Of Madhya Pradesh on 19 October, 1995
Equivalent citations: 1996CRILJ1908
Author: D.M. Dharmadhikari
Bench: D.M. Dharmadhikari
JUDGMENT D.M. Dharmadhikari, J.
1. The appellants have been convicted for the offences under Section 302 read with Section 149, 325 read with Sections 149 and Section 148 of the Indian Penal Code. For the offence under Section 302 r/w Section 149, I. P. C. they all have been sentenced to life imprisonment and for other offences they have been sentenced to three years rigorous imprisonment by the judgment dated 29-12-1987 of the Court of Additional Sessions Judge, Shivpuri. The appellants have assailed their convictions in this appeal.
2. The prosecution case as per the version in the First Information Report, Ex. PW. 1, and the oral testimony of the witnesses, P. W. 1 to P. W. 4, it is as under:-
Cattle of accused Thakurdas had strayed into the field of Roshansingh, P. W. 1 and damaged the standing wheat crop. Roshansingh, therefore, went to the house of accused Thakurdas on 13-1-1986 at 6.00 in the evening to raise the protest and to warn him that in future if cattle damages the crop he would send them to cattle-pound. At the house of Thakurd-as there were hot exchanges between the complainant and the accused parties. It is alleged that in the course of quarrel accused Managalsingh came out from the house and caught hold of Roshan Singh. Thereupon, Bhagwan Singh, P.W. 2, Sobatsingh P.W. 3, Pitaram (the deceased) and Sirkunwar P.W. 4, all relations of Roshansingh, came for his help. Thereafter, the accused Thakurdas, Parashram and Bhagwat came with Luhangis Mangalsingh with Pharsa and accused Jagdish and Kalyansingh with lathis to intervene in the quarrel and assaulted the members of the complainant party causing them several injuries. According to the prosecution version Mangalsingh gave a Pharsa blow to Pitaram as also to Bhagwansingh. The incident was reported to police-station Karera on the same day on 13-1-1986, 9.30 in the night. It is admitted that a counter report was also lodged by the accused party and a criminal case was registered against the complainant party, whereupon a criminal case is also pending trial against them. The members of the complainant party who were injured in the incident were medically examined and the injuries reports are Ex. P-26 to Ex. P-31. Deceased Pitaram was medically examined on 13-1-1986, when he was alive and following injuries were found on his person :-
(1) A lacerated wound over frontal region of scalp in centre 2" above forehead horizontal 3/4" x 1/ 3" skin deep. (2) A lacerated wound 1" above injury No. 1 horizontal 3/4" x 1/5" x skin deep. (3) Lacerated wound 3/4" above injury No. 2 and parallelly situated 1" x 1/5" x skin deep. (4) Contusion over right forearm below elbow 2" x 1".
(5) Contusion over left forearm below elbow 3" x 1".
He was medically examined in the hospital at Karera and the doctor who treated him then referred him to District Hospital Shivpuri. At Shivpuri as indoor patient he died on 20-1-1986. The postmortem report is Ex. P-36 and the cause of death is stated to be - "After conducting P. M. on the above body, (paper torn) opinion he died due to injury to vital part (Brain) causing fracture of frontal bone and 7th cervical vertebrae, extra dural haemorrhage and death."
3. A letter was sent by the Investigating Officer to Dr. R.S. Dixit, P. W. 12, who had medically examined Pitaram to specifically state whether the injuries mentioned above found on the person of Pitaram could have been caused by a sharp edged weapon. By letter, Ex. P-31, the doctor informed that injuries Nos. 1, 2 and 3 found on the person of Pitaram would have been caused by Luhangi, or any hard and blunt object and not by any sharp edged weapon. The same was the report with regard to injuries caused to Smt. Sirkunwar and Bhagwansingh. It is not necessary to give full details of the injuries caused to other members of the complainant party and it is enough to state that as per Injury Report, Ex. P-26 about Smt. Sirkunwar, Ex. P-27 about Roshansingh. Ex. P-28 about Bhagwansingh and Ex. P-29, about Sohbatsingh they all received injuries which were lacerated, contusions and abrasions.
4. Accused persons abjured their guilt and examined D. W. 1 Phoolsingh as defence witness. The defence version is that complainant Roshansingh came with an axe in his hand to raise the protest on straying of cattle into his field. He abused accused Thakurdas and assaulted him with an axe. The other members of the complainant party, namely Sohbatsingh, Pitaram and Bhagwansingh had lathis in their hands and they also assaulted Thakurdas. According to the defence version the complainant was the aggressor and had come along with other his companions to wreck up the quarrel.
5. Learned Judge of the trial Court placed implicit reliance on the complainant's version as given by them in their depositions and convicted all the accused as described above.
6. Learned counsel, Shri B. Raj Sharma, assails the conviction on several grounds. Firstly, it is urged that the incident as it took place did not make out a case of formation of any unlawful assembly within the meaning of Section 149, I. P. C. and there was no common intention on the part of the members of the accused party to commit murder of Pitaram. It is also submitted that conviction under Section 149, I. P. C. is not sustainable on the simple ground that no charge under Section 149, I. P. C. was framed against the accused. It is next urged that admittedly injuries were also caused to the members of the accused party and on that basis a counter report a counter case was also lodged against the complainant. The prosecution, therefore, was legally bound to explain the injuries caused to the accused, and its failure to do so is fatal to the prosecution case. Alternatively, it is submitted that it was a case of free fight and each accused would be responsible for the individual acts committed by them in the course of commission of the offence.
7. Learned counsel, Shri Jai Prakash Sharma , Panel Lawyer appearing for the State, made some efforts to sustain the conviction and stated that the incident as narrated by the prosecution witnesses and the defence did not make out it to be a case of free fight. On behalf of the State it is stated that the incident as narrated is in two parts. Complainant Roshansingh had first gone to the house of Thakurdas only to lodge his protest for damage caused to his crop. Thereafter, the inmates of the house i. e., other accused persons came upon the scene with a common intention to assault the members of the complainant party, who had by that time reached on the spot, to save assault on Roshansingh. It is argued that the case of formation of unlawful assembly and common intention has clearly been made out.
8. We have carefully considered the contentions advanced by the counsel for the parties at the Bar and have also looked into the record of the case. After considering and weighing the evidence of P.W. 1 Roshansingh, P.W. 2, Bhagwansingh, P.W. 3, Sohbatsingh and P.W. 4, Sirkunwar, in our opinion, no implicit faith can be placed on their version in entirety. The defence version as narrated by D. W. 1., Phoolsingh is highly probabilised that on the issue of straying of cattle Roshansingh had gone armed to wreck up a quarrel and his other companions i.e. the injured witnesses named above also went with him for his help. First, a wordy dual took place and thereafter the parties clashed with the arms in their hands. It was, therefore, a case of free fight between the members of the two parties. The prosecution cannot be held guilty of suppression of any part of the incident. The counter report of the accused party resulted in institution of a separate case against the complainant party, which is pending. It has not been informed to us what was the result of that case. Since, it is a case of free fight between the two parties, the question of formation of unlawful assembly and common intention does not arise. Each accused is, therefore, responsible of the individual act committed by him. We may also mention that conviction under Section 149, I. P. C. is otherwise also not sustainable as on careful examination of record by us, we find that no charge under Section 149 I. P. C. was framed against the accused.
9. It is not disputed that Pharsa blow was given to Pitaram only by Mangalsingh and not by other accused persons. As mentioned above, Dr. R. S. Dixit, P.W. 12, in his testimony and in his letter, Ex. P-31, has very clearly stated that Injury No. 1 on the head was not caused by any sharp edged weapon. The Pharsa, therefore, appears to have been inflicted from the blunt side which resulted in the fracture of scalp and damage to the brain. Dr. G. D. Agarwal, P.W. 15, who performed the post mortem has also in his deposition stated that the' injury caused on the head might have been caused by hard and blunt object. In para 12 Dr. R. S. Dixit, P.W. 12, has very clearly stated that injuries Nos. 1, 2 and 3 found on the person of Pitaram were not sufficient in the ordinary course of nature to cause death. The version, as stated by the prosecution witnesses, makes out a case of free fight, as held by us above. We cannot, therefore, infer any intention on the part of the accused Mangalsingh to commit murder of Pitaram. The injuries were caused by him in the course of quarrel which suddenly took place when Roshansingh had gone to lodge protest to the house of Thakurdas. The offence, therefore, committed by Mangalsingh would not be one under Section 302, IPC but under Section 304, Part I, IPC. Mangalsingh had also caused injuries to complainant Bhagwansingh and he has also been convicted under Section 325, IPC. We are informed that he is in jail since the date of incident and has almost suffered nine years sentence. We, therefore, set aside his conviction under Section 302, IPC and instead convict him Under/Section 304, Part I, IPC, Section 325 and Section 148, IPC and sentence him for the period already undergone.
10. So far as the other accused-appellants Nos. 2 to 7 are concerned, they have all caused injuries by Luhangis and lathis. The injuries as per the injury reports, Ex. P-26 to Ex. P-29 are all contusions, abrasions and lacerated wounds. As held above, there was no formation of unlawful assembly within the meaning of Section 149, IPC and there was no common intention. They are all, therefore, liable to be convicted only under Section 325 and Section 148, IPC. They are all on bail. Appellant No. 21, Thakurdas, Appellant No. 6 Jagdish and appellant No. 7 Bhagwatsingh have suffered about two months sentence and appellant No. 3 Kalyansingh, appellant No. 4 Parashram and appellant No. 5 Premnarayan have all suffered three months sentence each before they were enlarged on bail. In this case, both parties clashed and had caused injuries to members of other party. In the circumstances of the case, in our opinion, ends of justice would be met by sentencing appellants Nos. 2 to 7 to the period of imprisonment already undergone by them and fine of Rs. 2000/- (Rupees Two thousand only) each payable as compensation to the injured within three months. In default of payment of fine they shall suffer further rigorous imprisonment for six months.
11. Consequently, the appeal only partly succeeds. The conviction of the appellants under Section 302 read with Section 149, IPC is hereby set aside, instead appellant No. 1 Mangalsingh is convicted Under/Section 304, Part I, Section 325 and Section 148, IPC and is sentenced to imprisonment for the period already undergone by him. The other appellants Nos. 2 to 7 are convicted for the offences under Sections 325 and 148, IPC and are sentenced to the period of imprisonment already undergone by them and fine of Rs. 2000/- (Rupees Two thousand only) each payable as compensation to the injured within three months. In default of payment of fine they shall suffer a further sentence of rigorous imprisonment for six months. Their bail bonds are cancelled. All the appellants be set at liberty, if they are not otherwise required in connection with any other offence.