Madhya Pradesh High Court
Jagdish Prasad & Ors. vs The State Of Madhya Pradesh on 16 October, 2024
Author: Vishal Mishra
Bench: G.S. Ahluwalia, Vishal Mishra
NEUTRAL CITATION NO. 2024:MPHC-JBP:51063
1
CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPU R
BEFORE
HON'BLE SHRI JUSTICE G.S. AHLUWALIA
&
HON'BLE SHRI JUSTICE VISHAL MISHRA
CRIMINAL APPEAL No. 2360 of 2005
JAGDISH PRASAD AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
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Appearance :
Shri Surendra Singh - Senior Advocate with Shri Kapil Pathak -
Advocate for the appellants.
Shri A.S. Baghel - Government Advocate for the respondent/State.
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WITH
CRIMINAL APPEAL No. 2405 of 2005
ROOP SINGH AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
Appearance :
Shri Surendra Singh - Senior Advocate with Shri Kapil Pathak -
Advocate for the appellants.
Shri A.S. Baghel - Government Advocate for the respondent/State.
-----------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------------
WITH
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 17-10-2024
11:39:13
NEUTRAL CITATION NO. 2024:MPHC-JBP:51063
2
CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
CRIMINAL APPEAL No. 30 of 2006
RISHI KUMAR AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
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Appearance :
Shri Nitin Agrawal - Advocate for the appellants.
Shri A.S. Baghel - Government Advocate for the respondent/State.
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Reserved on : 04.09.2024
Pronounced on : 16.10.2024
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JUDGMENT
Per Vishal Mishra, J.
These appeals are interlinked as preferred against the judgment of conviction and order of sentence dated 29.10.2005 passed by the Additional Sessions Judge, Gadarwara District Narsinghpur (M.P.) in Sessions Trial No.120 of 2002 whereby the appellants were convicted and sentenced as under with the direction that the jail sentences shall run concurrently :
CRA No. and Convicted Sentenced to
Name of under
appellant(s) Section
CRA No.2360 of 148 of IPC undergo R.I. for 3 years and to
2005 pay fine of Rs.500/- and in
1. Jagdish Prasad default, to suffer R.I. for 1 month.
2. Komal 302/149 of undergo R.I. for Life and to pay
3. Vijay Singh IPC fine of Rs.1000/- and in default, to
suffer R.I. for 6 months.
307/149 of undergo R.I. for 7 years and to
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 17-10-2024
11:39:13
NEUTRAL CITATION NO. 2024:MPHC-JBP:51063
3
CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
CRA No. and Convicted Sentenced to
Name of under
appellant(s) Section
IPC pay fine of Rs.500/- and in
default, to suffer R.I. for 3
months.
CRA No.2405 of 148 of IPC undergo R.I. for 3 years and to 2005 pay fine of Rs.500/- and in
1. Roop Singh default, to suffer R.I. for 1 month.
2. Ghanshyam 302/149 of undergo R.I. for Life and to pay
3. Mohan Singh IPC fine of Rs.1000/- and in default, to suffer R.I. for 6 months.
307/149 of undergo R.I. for 7 years and to
IPC pay fine of Rs.500/- and in
default, to suffer R.I. for 3
months.
CRA No.30 of 148 of IPC undergo R.I. for 3 years and to 2006 pay fine of Rs.500/- and in
1. Rishi Kumar default, to suffer R.I. for 1 month.
2. Arjun Singh 302/149 of undergo R.I. for Life and to pay IPC fine of Rs.1000/- and in default, to suffer R.I. for 6 months.
307/149 of undergo R.I. for 7 years and to
IPC pay fine of Rs.500/- and in
default, to suffer R.I. for 3
months.
2. The prosecution story, in short, may be summarized as under :
(i) On 19.12.2001 at about 9.30 a.m., when complainant Rajendra Kumar along with his brother Narendra Sharma Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 4 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 (PW12), who was carrying 12-bore gun, were going towards Gadarwara to attend the court proceedings and when they were going towards Surela to take their motorcycle and when they reached near Dudhi river darhai, all of a sudden, Roop Singh, Rishi Gujar, Ghanshyam, Komal, Jagdish, Vijay, Arjun and Mohan Singh carrying lathis in their hands came there and stopped their way and started inflicting injuries to Rajendra and Narendra by means of lathis causing injuries to them. One Inder Singh Gujar (PW4) has seen the incident.
The injured ran away from the spot saving themselves from the accused persons and went to Village Surela in Suresh Shukla's house. They narrated the entire incident to Suresh Shukla (PW1) and Gram Kotwar of Village Surela.
(ii) On the basis of aforesaid incident, Dehati Nalishi was got recorded by the complainant Rajendra in terms of Ex.P/33 and on the basis of which an FIR vide Ex.P/34 was registered at Police Station Saikheda District Narsinghpur at Crime No.147 of 2001 in respect of offences under Sections 147, 148, 149, 341, 294, 323 and 506B of IPC against as many as eight accused persons namely Roop Singh Gujur, Rishi Gujur, Ghanshyam Gujar, Komal, Jagdish Gujar, Vijay Gujar, Arjun Gujar and Mohan Singh. It is alleged that the incident has taken place owing to the previous enmity between the parties.
(iii) On the same day i.e. 19.12.2001, both the injured persons viz. Rajendra and Narendra were sent for medical examinations. As many as 9 injuries were found on the body Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 5 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 of Rajendra whereas 14 injuries were noticed on the body of Narendra. They were also referred for X-ray examination. Fractures were found on lower end of forearm of Narendra and on left shaft of ulna region of Rajendra. Initially, the offence under Sections 147, 148, 149, 341, 294, 323 and 506B of IPC was registered against the appellants but consequent to death of Rajendra during the course of medical treatment on 22.12.2001, an offence under Section 302 of IPC was added. The intimation regarding death of Rajendra was sent from the Medical College Hospital Jabalpur to the police station and based on which the merg intimation was recorded in terms of Ex.P/19. The dead body of Rajendra was sent for post-mortem examination which was conducted by Dr. Mukesh Shrivastava (PW7) who opined that the death was due to hypovolemic shock as a result of splenic injury and the duration of injuries was within 3-5 days.
(iv) During the course of investigation, statements of witnesses were recorded; spot map was prepared; accused- appellants were apprehended; their memorandum statements were recorded and pursuant to their disclosure statements, weapon of offence i.e. lathis were recovered from their possession; as many as eight lathis were recovered i.e. one from each accused.
(v) After completion of the investigation, charge sheet in respect of offence under Sections 147, 148, 149, 341, 294, 323, 506, 307 and 302 of IPC was filed in the Court of Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 6 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 Judicial Magistrate First Class, Gadarwara who committed the case to the Sessions Court for trial.
3. At the trial, the accused-appellants abjured their guilt and pleaded that they were falsely implicated owing to prevailing animosity between the parties. It was asserted that a counter case with respect to same incident was registered at Crime No.148 of 2001 for the offence under Sections 341 and 307/34 of IPC against Rajendra Sharma, Jainendra Sharma, Nandu @ Narendra Sharma and Geeta Bai on the report lodged by Sainik Ramesh Kumar wherein Roop Singh @ Ram Singh sustained gun-shot injury by means of a firearm carried by Nandu @ Narendra Sharma which is not explained by the prosecution. Therefore, they were put to trial. In Sessions Trial No.65 of 2003 vide judgment dated 29.10.2005, accused Jainu @ Jainendra and Geeta Bai have been acquitted whereas Nandu @ Narendra has been convicted for the offence under Section 307 of IPC. Against which, a separate appeal has been filed being CRA No.2301 of 2005.
4. To bring home the charges, the prosecution examined as many as 15 witnesses namely Suresh Kumar Shukla (PW1), Bhaiyaji Gujar (PW2), Kotwar Ganesh Prasad Mehra (PW3), Inder Singh (PW4), Constable Shyam Sunder (PW5), Dr N.K. Bajpai (PW6), Autopsy Surgeon Dr. Mukesh Shrivastava (PW7), Head Constable Halke Singh (PW8), Patwari Bhagwat Narayan Tiwari (PW9), Constable Devi Singh (PW10), ASI K.S. Baghel (PW11), injured Narendra Sharma (PW12), Investigating Officer Virendra Birthare (PW13), Dr. Prashant Nema (PW14) and ASI B.B. Singh (PW15) and exhibited various documents in support of the case. Ex.P/33 is Dehati Nalishi, Ex.P/34 is the First Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 7 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 Information Report registered by Head Constable Halke Singh (PW8), Ex.P/20 is the merg intimation. Ex.P/22 is the medical report of Rajendra whereas Ex.P/24 is Narendra's medical report. Ex.P/50 is MLC of Rajendra, Ex.P/29 and Ex.P/30 are X-ray reports of Narendra and Rajendra, Ex.P/32 is post-mortem report of Rajendra. In defence, four witnesses namely Dr. N.K. Bajpai (DW1), Dr. Harnarayan Gujar (DW2), Dr. Ashutosh Sisodiya (DW3) and Dr. Arun Saxena (DW4) were examined.
5. On consideration of the entire evidence on record, the learned trial Judge, for the reasons recorded in the impugned judgment, held the appellants guilty of the offences and accordingly convicted and sentenced them in the manner as indicated hereinabove. Being aggrieved thereby, the appellants have preferred the present appeals.
6. Since these appeals arise out of the impugned judgment of conviction dated 29.10.2005 in Sessions Trial No.120 of 2002, they are heard analogously and are being decided by this common judgment. Insofar as cross appeal is concerned being CRA No.2301 of 2005, the same will be decided by a separate judgment in terms of the decision of the Hon'ble Supreme Court in the case of A.T. Mydeen vs The Assistant Commissioner, Customs Department vide Criminal Appeal No.1306 of 2021 decided on 29.10.2021 wherein it is held :
25. So far as the law for trial of the cross cases is concerned, it is fairly well settled that each case has to be decided on its own merit and the evidence recorded in one case cannot be used in its cross case. Whatever evidence is available on the record of the case only that has to be considered. The only caution is that both the trials should be conducted simultaneously or in case of the appeal, they should be heard simultaneously. However, we are not concerned with cross-cases but are concerned with an eventuality Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 8 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 of two separate trials for the commission of the same offence (two complaints for the same offence) for two sets of accused, on account of one of them absconding.
7. Legality and propriety of the impugned convictions have been challenged on the ground that the learned trial Court has grossly erred in convicting and sentencing the appellants for causing death of Rajendra and for attempting to commit murder of Narendra (PW12) with the aid of Section 149 of IPC. It should have been held that the appellants were exercising the right of private defence as the gunshot injury had been caused to Roop Singh by Narendra.
8. Shri Surendra Singh, learned Senior Counsel appearing for the appellants in CRA No.2360 of 2005 and CRA No.2405 of 2005 has raised his arguments basically on the ground that looking to the nature of offence which has been committed by the accused-appellants, the offence does not fall under the category of Section 302 of IPC rather the same clearly falls under the category of Section 304 Part II of IPC. The cause of death of Rajendra is shown to be injuries sustained to spleen. If MLC or the post-mortem report is seen, there is no injury found on the spleen. There are 9 injuries to Rajendra (since deceased) whereas 14 injuries to Narendra. All the injuries were caused by hard and blunt object. The motive behind the incident is previous rivalry. As per the prosecution, the complainant Rajendra and his brother Narendra were going to attend the court proceedings at Gadarwara and on the way, they were intercepted and stopped by the accused persons and they were inflicted injuries by means of lathis. Had it been intention of the accused-appellants to have inflicted injuries in order to cause death of Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 9 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 Rajendra then they could have done the same but the complainant party who being armed with a 12-bore gun was the aggressor. The injuries were inflicted all over the body. One or two injuries were on vital part and rest of them were on non-vital part of the body. Therefore, the intention to cause death could not have been gathered from the nature and situs of injuries which have been inflicted by the accused- appellants. It is pointed out that a cross case has been registered against the complainant party at Crime No.148 of 2001 pointing out that one of the accused i.e. Ram Singh @ Roop Singh sustained gunshot injury through a 12-bore gun fired by Narendra (PW12), therefore, the individual acts are required to be seen.
9. It is argued that none of the witnesses has pointed out that which accused had inflicted which injury on which part of the body of Rajendra and Narendra. It is the statement that all the accused persons came together being armed with lathis and started inflicting injuries, therefore, it cannot be said that they are responsible for their individual acts.
10. Learned Senior Counsel has submitted that as the incident has taken place all of a sudden without any premeditation or pre-meeting of mind and looking to the nature of injuries caused, coupled with the manner in which they have been inflicted, it cannot be said that the accused persons were having intention to cause death of Rajendra. Therefore, the case does not fall under the category of Section 302 of IPC and at the most, it would fall under exception (4) of Section 300 of IPC which is punishable under Section 304 Part II of IPC. He has prayed for partly allowing of the appeals and converting the sentence Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 10 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 from Section 302 of IPC to Section 304 Part II of IPC. The aforesaid vital aspect has not been considered by the learned trial Court. Further, there are material contradictions and omissions in the evidence of the prosecution witnesses.
11. The other counsel Shri Nitin Agrawal appearing in CRA No.30 of 2006 has adopted the arguments raised by learned Senior Counsel Shri Surendra Singh as the allegations are common against all the accused persons.
12. Yet another point which is argued is that the injuries sustained in the counter case to Ram Singh @ Roop Singh are not explained by the prosecution, therefore, benefit of doubt should have been extended to the accused-appellants.
13. Per contra, counsel appearing for the respondent-State has vehemently opposed the contentions and has supported the impugned judgment of conviction stating that there is clear and cogent evidence available on record against the accused-appellants. All of them jointly, after premeditation of minds, armed with lathis, assaulted Rajendra and his brother Narendra causing several injuries on their bodies and during the course of treatment, Rajendra died on 22.12.2001. Therefore, the offence under Section 302 of IPC was added. There were 9 injuries caused to Rajendra and 14 injuries to Narendra, therefore, it cannot be said that there was no intention to cause death. The prosecution has proved its case beyond reasonable doubt against the accused-appellants. He has prayed for dismissal of the appeals.
14. Heard learned counsel for parties and perused the record.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 11 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
15. For the sake of convenience, we have devised to categorize the case under the following headings: (1) genesis of occurrence (2) whether the death of Rajendra is homicidal in nature (3) presence of accused-appellants at the place of incident & recovery of weapon (4) regarding plea of private defence and/or who was the aggressor (5) Members of unlawful assembly and common object (6) Whether non- explanation of injuries sustained by accused Roop Singh is sufficient to discard the entire prosecution case and effect of registration of cross- case (7) conclusion.
Genesis of occurrence
16. The record reveals that pursuant to the incident said to have been taken place on 19.12.2001, a Dehati Nalishi was got registered by injured Rajendra who subsequently died during the course of treatment on 22.12.2001 and the same was exhibited as Ex.P/33 wherein he stated that when he along with his brother Narendra was going to attend the court proceedings, all of a sudden, the accused persons, eight-in- number viz. Roop Singh, Ghanshyam, Mohan Singh, Jagdish Prasad, Komal, Rishikumar, Arjun Singh, Vijay Singh, armed with lathis, stopped their way; hurled filthy abuses and inflicted injuries by means of lathis. The accused persons stopped them from going to court to attend the court proceedings and give their statements. Thereafter, both the injured were taken to hospital for medical examinations. On the same day i.e. 19.12.2001 at 5.10 p.m. Narendra was got examined by Dr. N.K. Bajpai (PW6) who has found 14 injuries on his body and thereafter, Rajendra was got examined by the same medical expert i.e. Dr N.K. Bajpai (PW6) who has found 9 injuries on his body. They were Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 12 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 further referred for X-ray examination and on radiological examinations, fractures were found on frontal parietal region and left ulna bone of Rajendra and fracture was found on ulna bone of forearm of Narendra. Later on, during the course of treatment, on 22.12.2001, injured Rajendra died. Accordingly, the offence under Section 302 of IPC was added. It is not in dispute that a previous criminal case was registered and trial was going on in which the complainants were going to court to give their evidence. Thus, the factum of previous enmity is available in the case.
Whether the death of Rajendra is homicidal in nature
17. To decide the issue, it is necessary to consider the medical evidence. The injuries sustained by Rajendra and Narendra are medically corroborated. Dr. N.K. Bajpai (PW6) has found following injuries :
On the person of Rajendra vide Ex.P/22
(i) lacerated wound size 6 cm x 2 cm over left occipital region
- advised X-ray examination
(ii) Friction abrasion over left maxillary prominal of face 2 x 2 cm
(iii) Contusion over middle 1/3rd of left arm 7 cm x 2 cm over posterio lateral aspect
(iv) Swelling with contusion over right knee joint 3 cm x 2 cm
(v) Friction abrasion over lower part of left patella 2 cm x 1 cm
(vi) Friction abrasion over lower part of left knee 1 x 1 cm
(vii) Lacerated wound with contusion over shin of tibia left lower /3rd - advised X-ray examination
(viii) Contusion over upper part of left lumber region size 5 cm x 2 cm Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 13 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
(ix) Contusion and abrasion over mid scapalin region of face size 4 x 3 cm All the injuries were caused by hard and blunt object (Ex.P/22).
On the person of Narendra vide Ex.P/24
(i) Lacerated wound size 2½ cm x 1 cm x ¼ cm lateral to left eyebrow
(ii) Lacerated wound size 3 cm x ¼ cm x ¼ cm over right forehead and frontal scalp
(iii) Lacerated wound size 2 cm x 1 cm x ¼ cm over right parietal scalp
(iv) Contusion size 6 cm x 4 cm over left upper arm
(v) Contusion size 5 cm x 3 cm below injury no.(iv)
(vi) Lacerated wound size 1½ cm x ½ cm x ½ cm over left upper arm
(vii) Contusion with abrasion size 4 cm x 3 cm over left wrist
(viii) Contusion over left knee size 6 cm x 4 cm
(ix) Contusion size 4 cm x 5 cm over right left
(x) Swelling over left ankle
(xi) Contusion size 10 cm x 4 cm over left forearm
(xii) Contusion size 6 cm x 3 cm over right mid forearm
(xiii) Contusion with abrasion size 4 cm x 3 cm over right forearm lower end.
(xiv) Contusion over left lumbosacral region 10 x 3 cm All the injuries were caused by hard and blunt object (Ex.P/24).
18. Dr. Mukesh Shrivastava (PW7) stated that he was posted as Medical Officer at Medical College Hospital at the relevant time. On 23.12.2001, the dead body of Rajendra was brought at 12.15 p.m. When Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 14 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 he examined the dead body, he noticed that it was a body of average built person, rigor mortis present all over the body, abrasions with scab formation present over left temporal region, post-auricular, left cheek, left side of nose, right post-auricular, left knee, left scapular region. Contusions present over posterior aspect of left arm and posterior aspect of mid of left forearm. A stitched wound length 3 cm present over mid parieto-occipital region of scalp. Sub-scalp hematoma present. Clotted blood present over left side of abdominal cavity around spleen, spleen and pancreas both contused, linear laceration present near hilum of spleen. According to him, the cause of death of Rajendra was due to excessive internal bleeding and rupture of spleen which resulted into hypovolemic shock. He deposed that all the injuries were inflicted by hard and blunt object within 3-5 days of post-mortem examination.
19. Dr. Prashant Nema (PW14), who was working as RSO in Surgical Department of Medical College at relevant time, testified that deceased Rajendra was admitted at Ward No.13 of the Medical College Hospital, Jabalpur. He noticed lacerated wound admeasuring 6 cm present over middle area of scalp, abrasions over left cheek, frontotemporal region & knee and lacerated wound over left leg of Rajendra. According to him, the injuries were grievous in nature.
20. ASI K.S. Baghel (PW11) posted at Police Station Garha District Jabalpur deposed that after recording merg intimation, he proceeded to the Medical Hospital, Jabalpur and inspected the dead body of the Rajendra. He conducted the inquest proceedings and prepared inquest report (Ex.P/6). He found injuries over face, head, right ear and left leg of the deceased. He sent the dead body for post-mortem examination.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 15 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
21. The investigation of the case was entrusted to ASI Virendra Birthare (PW13) who stated that after the incident, he visited the place of occurrence and recorded Dehati Nalishi at the instance of Rajendra (since deceased) in terms of Ex.P/33 alleging therein that the accused- appellants had assaulted Rajendra and his brother Narendra causing serious injuries by means of lathis. He thereafter prepared spot map (Ex.P/38) and sent both the injured for medical examination. He also recorded statement of Rajendra under Section 161 of CrPC. He was cross-examined at length but nothing could be elicited in his cross examination so as to suggest that he was, in any way, interested in securing conviction of the appellants on absolutely false grounds.
22. Looking to the number, nature and situs of injuries sustained by the deceased Rajendra coupled with the ocular evidence available on record, we are convinced that death is homicidal in nature.
Presence of accused-appellants at the place of incident & recovery of weapon
23. It is not in dispute that Rajendra (since deceased) is the author of Dehati Nalishi on the basis of which an FIR (Ex.P/34) was registered by Constable Devi Singh (PW10) for the offences under Sections 147, 148, 149, 341, 294, 323 and 506B of IPC against as many as eight accused persons but after death of Rajendra, the offence under Section 302 of IPC was subsequently added.
24. The Dehati Nalishi (Ex.P/33) recorded at the instance of Rajendra (since deceased) and his statement (Ex.P/39) recorded under Section 161 of the CrPC can be treated as 'dying declaration' after his death.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 16 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 Both reflect presence of eight accused namely Roop Singh Gujur, Rishi Gujur, Ghanshyam Gujar, Komal, Jagdish Gujar, Vijay Gujar, Arjun Gujar and Mohan Singh and they were armed with lathis and assaulted Rajendra and Narendra. The injured sustained grievous injuries. It is said that a man will not meet his maker with lie on his mouth. The latin maxim regarding this, reads thus "Nemo moriturus praesumitur mentire." The Dehati Nalishi was got registered by ASI Virendra Birthare (PW13). He has duly supported Dehati Nalishi and clearly stated that the same has been recorded in the manner in which it was stated by Rajendra. Injured witness Narendra examined as PW12 supported the recording of Dehati Nalishi and inflicting of injuries by all the accused persons by means of lathis jointly. There is recovery of lathis from the possession of accused persons. There is an element of previous enmity between the parties which is reflected from Dehati Nalishi as well as statement of Narendra (PW12) which have been recorded during course of investigation as well as during trial.
25. In this context, the Hon'ble Supreme Court in the case of Pradeep Bisoi vs The State of Odisha reported in (2019) 11 SCC 500 has held as under :
11. Sub-section (2) of Section 162 incorporates a clear exception to what has been laid down in sub-section (1). The statement recorded by police under Section 161, falling within the provisions of clause (1) of Section 32 of the Evidence Act, thus, is clearly relevant and admissible. In Mukeshbhai Gopalbhai Barot Mukeshbhai Gopalbhai Barot v. State of Gujarat, (2010) 12 SCC 224, this Court had the occasion to consider Sections 161 and 162 CrPC and Section 32 of the Evidence Act. ... In paras 16 and 17, this Court held that the statement of persons recorded under Section 161 can be treated as dying declaration after death. In paras 16 and 17, the following has been laid down:Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13
NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 17 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 "16. We have considered the arguments advanced by the learned counsel for the parties. At the very outset, we must deal with the observations of the High Court that the dying declarations Exts. 44 and 48 could not be taken as evidence in view of the provisions of Sections 161 and 162 CrPC when read cumulatively. These findings are, however, erroneous. Sub-section (1) of Section 32 of the Evidence Act, 1872 deals with several situations including the relevance of a statement made by a person who is dead. The provision reads as under:
'32. Cases in which statement of relevant fact by person who is dead or cannot be found, etc., is relevant.--Statements, written or verbal, of relevant facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence, or whose attendance cannot be procured without an amount of delay or expense which, under the circumstances of the case, appears to the court unreasonable, are themselves relevant facts in the following cases--
(1) When it relates to cause of death.--When the statement is made by a person as to the cause of his death, or as to any of the circumstances of the transaction which resulted in his death, in cases in which the cause of that person's death comes into question.
Such statements are relevant whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his death comes into question.' We see that the aforesaid dying declarations are relevant in view of the above provision. Even otherwise, Sections 161 and 162 CrPC admittedly provide for a restrictive use of the statements recorded during the course of the investigation but sub-section (2) of Section 162 deals with a situation where the maker of the statement dies and reads as under:
'162. (2) Nothing in this section shall be deemed to apply to any statement falling within the provisions of clause (1) of Section 32 of the Indian Evidence Act, 1872 (1 of 1872), or to affect the provisions of Section 27 of that Act.'
17. A bare perusal of the aforesaid provision when read with Section 32 of the Evidence Act would reveal that a statement of a person recorded under Section 161 would be treated as a dying declaration after his death. ...."Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13
NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 18 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
26. It is thus clear that the Dehati Nalishi as well as the statement of Rajendra (since deceased) is admissible under Section 32 of the Evidence Act because it gives regarding his cause of death and how he was injured.
27. Further, the statement of Suresh Shukla (PW1) was recorded before the trial Court though he has not supported the prosecution story but he admitted the fact that after the incident, both the injured Rajendra and Narendra went to his house where the incident was narrated by them to him as well as Gram Kotwar Surela. This apart, the factum of registration of counter case is an important aspect which shows the presence of the accused-appellants at the place of incident. Ex.D/1 being an FIR registered in the cross-case shows that place of occurrence to be one and same and also reflects that the injuries were inflicted to Roop Singh @ Ram Singh who was injured in the cross-case by a gunshot and the gunshot is stated to have fired by Nandu @ Narendra. Thus, presence of accused-appellants at the place of commission of offence could not be doubted.
28. Even the author of dehati nalishi i.e. Rajendra (since deceased) has categorically named all the eight accused who were carrying lathis in their hands and inflicted injuries by means of lathis. The factum of previous enmity is also not disputed by them because both the parties have specifically stated that they were going to attend the court proceedings at Gadarwara. The factum of registration of counter case at Crime No.148 of 2001 is also not disputed. Under these circumstances, it is apparently clear that all the accused-appellants were armed with lathis at the time of commission of offence.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 19 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 Regarding plea of private defence and/or who was the aggressor
29. In order to find out whether the right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered.
30. Another important aspect is who is the aggressor in the matter. The deceased Rajendra at the time of recording of Dehati Nalishi has categorically stated that when they reached near Dudhi river darhai, the accused persons were carrying lathis, they stopped them and inflicted injuries to them and during the assault, 12-bore gun as well as the bag containing bullets fell down. The accused-appellants were eight in numbers, armed with lathis, inflicted injuries to two persons. From the inception of the case, presence of all eight accused persons is shown and that of Rajendra and Narendra is shown. In the cross-case which has been registered and exhibited as Ex.D/1, presence of two other i.e. Jenu @ Jainendra and Geetabai is shown. It is not disputed that during trial, two accused namely Jenu @ Jainendra and Geetabai were acquitted vide judgment dated 29.10.2005 in Sessions Trial No.65 of 2003 as prosecution has failed to prove the case against them. Rajendra died during treatment during the trial. Only Nandu @ Narendra has been convicted in the cross-case because the main allegation of firing of gunshot was made against him. In the present case, there are as many as 9 injuries inflicted by hard and blunt object to Rajendra (since deceased) and 14 injuries to Narendra by 8 accused persons which are Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 20 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 medically corroborated. Seizure of lathis is not disputed. It is a clear statement of Rajendra in his Dehati Nalishi that the accused-appellants armed with lathis stopped his way as well as Narendra and inflicted injuries by means of lathis. There is no statement on record that first, Narendra fired a gunshot and then, just to save themselves, they inflicted injuries. Narendra (PW12) in his statement has clearly stated that as soon as the injuries were inflicted to him, he fell down and his 12-bore gun and bag were dropped and in order to save themselves, they ran towards Village Surela. Thus, it is clear that the accused- appellants were aggressor.
31. The argument which has been raised is that the injuries have been inflicted on Rajendra and Narendra while exercising the right of private defence as a gunshot was fired by Narendra through his 12-bore gun who is one of the accused in the counter case being Crime No.148 of 2001. It is to be seen that whether inflicting of injuries whether they have exceeded the right of private defence to bring the case under the category of 304 Part II of the IPC.
32. Insofar the argument with regard to the fact that this case would fall under the offence punishable under Section 304 Part II of IPC, we appositely refer to the recent pronouncement of the Hon'ble Supreme Court in the case of Anbazhagan vs The State represented by the Inspector of Police reported in 2023 (10) SCALE 173 wherein it is held as under :
"46. ...We have noticed something in the aforesaid observations made by this Court which, in our opinion, creates some confusion. We have come across such observations in many other decisions of this Court over and above the case of Jagrup Singh Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 21 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 (1981) 3 SCC 616. What we are trying to highlight is that in Jagrup Singh (supra), although this Court altered the conviction from Section 302 to Section 304 Part II, it took shelter of Exception 4 to Section 300 of the IPC. The question is, was there any need for the Court to take recourse to Exception 4 to Section 300 of the IPC for the purpose of altering the conviction from Section 302 to Section 304 Part II of the IPC. We say so because there is fine difference between the two parts of Section 304 of the IPC. Under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
XXX XXX XXX
60. Few important principles of law discernible from the aforesaid discussion may be summed up thus:--
(1) When the court is confronted with the question, what offence the accused could be said to have committed, the true test is to find out the intention or knowledge of the accused in doing the act. If the intention or knowledge was such as is described in Clauses (1) to (4) of Section 300 of the IPC, the act will be murder even though only a single injury was caused. To illustrate: 'A' is bound hand and foot. 'B' comes and placing his revolver against the head of 'A', shoots 'A' in his head killing him instantaneously. Here, there will be no difficulty in holding that the intention of 'B' in shooting 'A' was to kill him, though only single injury was caused. The case would, therefore, be of murder falling within Clause (1) of Section 300 of the IPC. Taking another instance, 'B' sneaks into the bed room of his enemy 'A' while the latter is asleep on his bed. Taking aim at the left chest of 'A', 'B' forcibly plunges a sword in the left chest of 'A' and runs away. 'A' dies shortly thereafter. The injury to 'A' was found to be sufficient in ordinary course of nature to cause death. There may be no difficulty in holding that 'B' intentionally inflicted the particular injury found to be caused and that the said injury was objectively sufficient in the ordinary course of nature to cause death. This would bring the act of 'B' within Clause (3) of Section Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 22 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 300 of the IPC and render him guilty of the offence of murder although only single injury was caused.
(2) Even when the intention or knowledge of the accused may fall within Clauses (1) to (4) of Section 300 of the IPC, the act of the accused which would otherwise be murder, will be taken out of the purview of murder, if the accused's case attracts any one of the five exceptions enumerated in that section. In the event of the case falling within any of those exceptions, the offence would be culpable homicide not amounting to murder, falling within Part 1 of Section 304 of the IPC, if the case of the accused is such as to fall within Clauses (1) to (3) of Section 300 of the IPC. It would be offence under Part II of Section 304 if the case is such as to fall within Clause (4) of Section 300 of the IPC. Again, the intention or knowledge of the accused may be such that only 2nd or 3rd part of Section 299 of the IPC, may be attracted but not any of the clauses of Section 300 of the IPC. In that situation also, the offence would be culpable homicide not amounting to murder under Section 304 of the IPC. It would be an offence under Part I of that section, if the case fall within 2nd part of Section 299, while it would be an offence under Part II of Section 304 if the case fall within 3rd part of Section 299 of the IPC.
(3) To put it in other words, if the act of an accused person falls within the first two clauses of cases of culpable homicide as described in Section 299 of the IPC it is punishable under the first part of Section 304. If, however, it falls within the third clause, it is punishable under the second part of Section 304. In effect, therefore, the first part of this section would apply when there is 'guilty intention,' whereas the second part would apply when there is no such intention, but there is 'guilty knowledge'. (4) Even if single injury is inflicted, if that particular injury was intended, and objectively that injury was sufficient in the ordinary course of nature to cause death, the requirements of Clause 3rdly to Section 300 of the IPC, are fulfilled and the offence would be murder.
(5) Section 304 of the IPC will apply to the following classes of cases :
(i) when the case falls under one or the other of the clauses of Section 300, but it is covered by one of the exceptions to that Section, (ii) when the injury caused is not of the higher degree of likelihood which is covered by the expression 'sufficient in the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 23 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 ordinary course of nature to cause death' but is of a lower degree of likelihood which is generally spoken of as an injury 'likely to cause death' and the case does not fall under Clause (2) of Section 300 of the IPC, (iii) when the act is done with the knowledge that death is likely to ensue but without intention to cause death or an injury likely to cause death.
To put it more succinctly, the difference between the two parts of Section 304 of the IPC is that under the first part, the crime of murder is first established and the accused is then given the benefit of one of the exceptions to Section 300 of the IPC, while under the second part, the crime of murder is never established at all. Therefore, for the purpose of holding an accused guilty of the offence punishable under the second part of Section 304 of the IPC, the accused need not bring his case within one of the exceptions to Section 300 of the IPC.
(6) The word 'likely' means probably and it is distinguished from more 'possibly'. When chances of happening are even or greater than its not happening, we may say that the thing will 'probably happen'. In reaching the conclusion, the court has to place itself in the situation of the accused and then judge whether the accused had the knowledge that by the act he was likely to cause death.
(7) The distinction between culpable homicide (Section 299 of the IPC) and murder (Section 300 of the IPC) has always to be carefully borne in mind while dealing with a charge under Section 302 of the IPC. Under the category of unlawful homicides, both, the cases of culpable homicide amounting to murder and those not amounting to murder would fall. Culpable homicide is not murder when the case is brought within the five exceptions to Section 300 of the IPC. But, even though none of the said five exceptions are pleaded or prima facie established on the evidence on record, the prosecution must still be required under the law to bring the case under any of the four clauses of Section 300 of the IPC to sustain the charge of murder. If the prosecution fails to discharge this onus in establishing any one of the four clauses of Section 300 of the IPC, namely, 1stly to 4thly, the charge of murder would not be made out and the case may be one of culpable homicide not amounting to murder as described under Section 299 of the IPC.
(8) The court must address itself to the question of mens rea. If Clause thirdly of Section 300 is to be applied, the assailant must Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 24 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 intend the particular injury inflicted on the deceased. This ingredient could rarely be proved by direct evidence. Inevitably, it is a matter of inference to be drawn from the proved circumstances of the case. The court must necessarily have regard to the nature of the weapon used, part of the body injured, extent of the injury, degree of force used in causing the injury, the manner of attack, the circumstances preceding and attendant on the attack.
(9) Intention to kill is not the only intention that makes a culpable homicide a murder. The intention to cause injury or injuries sufficient in the ordinary cause of nature to cause death also makes a culpable hom- icide a murder if death has actually been caused and intention to cause such injury or injuries is to be inferred from the act or acts resulting in the injury or injuries. (10) When single injury inflicted by the accused results in the death of the victim, no inference, as a general principle, can be drawn that the accused did not have the intention to cause the death or that particular injury which resulted in the death of the victim. Whether an accused had the re- quired guilty intention or not, is a question of fact which has to be determined on the facts of each case.
(11) Where the prosecution proves that the accused had the intention to cause death of any person or to cause bodily injury to him and the intended injury is sufficient in the ordinary course of nature to cause death, then, even if he inflicts a single injury which results in the death of the victim, the offence squarely falls under Clause thirdly of Section 300 of the IPC unless one of the exceptions applies.
(12) In determining the question, whether an accused had guilty intention or guilty knowledge in a case where only a single injury is inflicted by him and that injury is sufficient in the ordinary course of nature to cause death, the fact that the act is done without premeditation in a sudden fight or quarrel, or that the circumstances justify that the injury was accidental or unintentional, or that he only intended a simple injury, would lead to the inference of guilty knowledge, and the offence would be one under Section 304 Part II of the IPC"
33. The Hon'ble Supreme Court in the case of Arjun vs State of Chhattisgarh reported in AIR 2017 SC 1150 has held as follows :
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 25 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 "20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs Union Territory of Chandigarh reported in (1989) 2 SCC 217, it has been explained as under:
"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 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..."
34. From the perusal of the aforesaid judgments, it is clear that for bringing the case under Exception (4) of Section 300 of IPC, the incident occurred all of a sudden, grave and sudden provocation, no premeditation of minds is required to be seen. In the present case, eight accused persons armed with lathis inflicting injuries to two persons. In all 23 injuries have been inflicted all over the body of two persons; 9 injuries to Rajendra and 14 injuries to Narendra. It is not a case of single injury being inflicted on a spur of moment rather it is a case wherein eight accused persons armed with lathis stopped two persons as they were going to attend the court for recording of their depositions and thereafter, they were inflicted injuries by eight accused persons. It cannot be said that the altercation took place of a sudden. Eight persons coming together armed with lathis gives a clear impression that there Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 26 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 was a motive to kill them so that they may not record their depositions in the court, therefore, the accused assaulted both of them causing injuries of serious nature, resulting into death of Rajendra. It may be a possibility that the gunshot was fired by Narendra when the injuries by lathis were inflicted to them just to save himself.
35. The aforesaid aspect will be dealt with separately in a criminal appeal being CRA No.2301 of 2005 assailing the conviction of Nandu @ Narendra Sharma who has been convicted under Section 307 of IPC and sentenced to undergo R.I. for 7 years and to pay fine of Rs.500/- and in default, to suffer R.I. for 3 months.
36. Even if the argument regarding private of private defence is accepted, it is suffice to say that inflicting of multiple injuries by the accused persons clearly goes to show that they have exceeded their right of private defence. There is no material on record to justify the argument that there was a grave and sudden provocation to them and the incident occurred all of sudden. Under these circumstances, the argument advanced regarding right of private defence is not accepted in the facts and circumstances of the case. The right of private defence is an act of defence, not an offence. It cannot be used as a shield to justify aggression. Therefore, the same is of no help to the accused.
37. From the above analysis, it is clear that it is the accused- appellants who have inflicted injuries to Rajendra (since deceased) and injured Narendra exceeding the right of private defence. The death is found to be homicidal in nature. Thus, it is clear that they are guilty of causing death of Rajendra and attempting to cause death of Narendra.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 27 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
38. The argument that the cause of death of Rajendra is shown to be rupture of spleen and no injury was inflicted on spleen is of no assistance to the accused-appellants for the reason that when the post- mortem of Rajendra was got conducted, the autopsy report shows that there are as many as 9 injuries caused by hard and blunt object all over the body. The spleen being a delicate part of the body can be ruptured even by falling on the ground. The autopsy surgeon has reported injuries all over the body of Rajendra including that of right forehead parietal scalp and thereafter in the post-mortem report, cause of death was due to hypovolemic shock as a result of splenic injury. Thus, it is clear that the injuries sustained by Rajendra (since deceased) all over the body as a result of which he went into hypovolemic shock due to splenic injury. Thus, the argument raised on behalf of the appellants that the case would fall under Section 304 Part II of IPC is not acceptable.
Members of unlawful assembly and common object
39. There must be reasonable direct or indirect circumstances which lend assurance to the prosecution case that the accused-appellants shared common object of the unlawful assembly. Not only should the members be part of the unlawful assembly but should share the common object at all stages. This has to be based on the conduct of the members and the behaviour at or near the scene of the offence, the motive for the crime, the arms carried by them and such other relevant considerations.
40. Section 149 of IPC postulates an assembly of five or more persons having a common object i.e. one of those named in Section 141 Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 28 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 of IPC and then doing of the act as by the members of it in prosecution of that object. The basis of constructive guilt under Section 149 is mere membership of an unlawful assembly. Under Section 149, if the accused is a member of an unlawful assembly, the common object of which is to commit a certain crime, and such a crime is committed by one or more of the members of that assembly, every person who happens to be a member of that assembly would be liable for the commission of the crime being a member of it irrespective of the fact whether he has actually committed the criminal act or not. There is a distinction between the common object and common intention. The common object need not require prior concert and a common meeting of minds before the attack, and an unlawful object can develop after the assembly gathered before the commission of the crime at the spot itself. There need not be prior meeting of the mind. It would be enough that the members of the assembly which constitutes five or more persons, have common object and that they acted as an assembly to achieve that object. In substance, section 149 makes every member of the common unlawful assembly responsible as a member for the act of each and all, merely because he is a member of the unlawful assembly with common object to be achieved by such an unlawful assembly. At the same time, one has to keep in mind that mere presence in the unlawful assembly cannot render a person liable unless there was a common object and that is shared by that person. The common object has to be found and can be gathered from the facts and circumstances of each case; Rabindra Mahto vs State of Jharkhand reported in (2006) 10 SCC 432 relied on.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 29 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
41. In the present case, all accused-appellants armed with lathis in a pre-planned manner, stopped the way of Rajendra (since deceased) and his brother i.e. injured Narendra and shouted that ^^ge nksuksa Hkkb;ksa dk jkLrk jksd fy;k cksys vkt nksuksa cpus u ik;sa] cgqr fnu ckn feys gS vkSj lHkh ykfB;ksa ls ge yksxksa dh ekjihV ,d lkFk djus yxs^^ and thereafter, inflicted multiple injuries. This version of prosecution has remained consistent throughout; in Dehati Nalishi (Ex.P/33), in Rajendra's statement recorded under Section 161 of CrPC (Ex.P/39) and even in the statement of Narendra (PW12) recorded before the trial Court. There is nothing brought on record to show that the appellants were going to attend the court proceedings, in which case the date was fixed, who were the witnesses to record their depositions etc. It is nowhere explained that why would as many as 8 persons armed with lathis will go to the court to attend the proceedings.
42. Regarding members of unlawful assembly and common object, the Hon'ble Supreme Court in the case of Roy Fernandes vs State of Goa reported in (2012) 3 SCC 221 has held as follows :
18. That leaves us with the question whether the commission of murder by a member of an unlawful assembly that does not have murder as its common object would attract the provisions of Section 149 IPC?
19. Section 149 IPC reads:
"149.Every member of unlawful assembly guilty of offence committed in prosecution of common object.--If an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence."Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13
NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 30 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 A plain reading of the above would show that the provision is in two parts. The first part deals with cases in which an offence is committed by any member of the assembly "in prosecution of the common object" of that assembly. The second part deals with cases where the commission of a given offence is not by itself the common object of the unlawful assembly but members of such assembly "knew that the same is likely to be committed in prosecution of the common object of the assembly".
20. As noticed above, the commission of the offence of murder of Felix Felicio Monteiro was itself not the common object of the unlawful assembly in the case at hand. And yet the assembly was unlawful because from the evidence adduced at the trial it is proved that the common object of the persons comprising the assembly certainly was to either commit a mischief or criminal trespass or any other offence within the contemplation of clause (3) of Section 141 IPC, which may to the extent the same is relevant for the present be extracted at this stage:
"141.Unlawful assembly.--An assembly of five or more persons is designated an 'unlawful assembly', if the common object of the persons composing that assembly is--
First.-- * * *
Second.-- * * *
Third.--To commit any mischief or criminal trespass, or other offence;"
21. From the evidence on record, we are inclined to hold that even when commission of murder was not the common object of the accused persons, they certainly had come to the spot with a view to overawe and prevent the deceased by use of criminal force from putting up the fence in question. That they actually slapped and boxed the witnesses, one of whom lost his two teeth and another sustained a fracture only proves that point.
22. What then remains to be considered is: whether the appellant as a member of the unlawful assembly knew that the murder of the deceased was also a likely event in prosecution of the object of preventing him from putting up the fence? The answer to that question will depend upon the circumstances in which the incident had taken place and the conduct of the members of the unlawful assembly including the weapons they carried or used on the spot. It was so stated by this Court in Lalji v. State of U.P. (1989) 1 SCC 437 in the following words:
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 31 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 "8. ... Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case."
23. The Court elaborated the above proposition in Dharam Pal v. State of U.P. (1975) 2 SCC 596 as:
"11. Even if the number of assailants could have been less than five in the instant case (which, we think, on the facts stated above, was really not possible), we think that the fact that the attacking party was clearly shown to have waited for the buggi to reach near the field of Daryao in the early hours of 7-6-1967, shows pre-planning. Some of the assailants had sharp-edged weapons. They were obviously lying in wait for the buggi to arrive. They surrounded and attacked the occupants shouting that the occupants will be killed. We do not think that more convincing evidence of a preconcert was necessary. Therefore, if we had thought it necessary, we would not have hesitated to apply Section 34 IPC also to this case. The principle of vicarious liability does not depend upon the necessity to convict a required number of persons. It depends upon proof of facts, beyond reasonable doubt, which makes such a principle applicable. (See Yeshwant v. State of Maharashtra [(1972) 3 SCC 639] and Sukh Ram v. State of U.P. [(1974) 3 SCC 656]. The most general and basic rule, on a question such as the one we are considering, is that there is no uniform, inflexible, or invariable rule applicable for arriving at what is really an inference from the totality of facts and circumstances which varies from case to case. We have to examine the effect of findings given in each case on this totality. It is rarely exactly identical with that in another case. Other rules are really subsidiary to this basic verity and depend for their correct application on the peculiar facts and circumstances in the context of which they are enunciated."
43. In the instant case, there is sufficient material available on record which suggests that the accused-appellants were members of an unlawful assembly and the offence was committed in prosecution of the common object. They shared common object and in the course of which assaulted deceased Rajendra and injured Narendra by means of lathis.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 32 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 The conviction of the appellants with the aid of Section 149 of IPC is, thus, justified.
Whether non-explanation of injuries sustained by accused Roop Singh is sufficient to discard the entire prosecution case and effect of registration of cross-case
44. It is to be noted that with respect to the same incident said to have taken place on 19.12.2001, a counter case was also registered against four persons namely Rajendra, Jainendra, and Nandu @ Narendra and Geetabai in respect of offences under Sections 341 and 307 read with Section 34 of IPC at Crime No.148 of 2001 alleging therein that while Roop Singh @ Ram Singh was going to attend the court proceedings at Gadarwara at that time the accused persons stopped him and asked him not to give evidence and in the course of which altercation took place and Nandu @ Narendra fired a gunshot through his 12-bore gun which hit Roop Singh in his stomach. He was thereafter taken by Bhagat and Lakhan to the hospital at Gadarwara. This incident was witnessed by Jagdish, Ghanshyam and Mohan Thakur. The said criminal case was tried in Sessions Trial No.65 of 2003 wherein while acquitting the accused namely Jenu @ Jainendra and Geetabai, the accused-Nandu was convicted vide judgment dated 29.10.2005 for the offence under Section 307 of IPC and sentenced to undergo R.I. for 7 years and to pay fine of Rs.500/- and in default, to suffer R.I. for 3 months. He preferred an appeal being CRA No.2301 of 2005 which is being decided in a separate judgment.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 33 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
45. This Court is required to examine the effect of registration of counter case and the injuries sustained by the accused-Roop Singh not being examined by the prosecution. In this context, reference can be had of the decision of the Hon'ble Supreme Court in the case of James Martin vs State of Kerala reported in (2004) 2 SCC 203 and it has been as follows :
14. The number of injuries is not always a safe criterion for determining who the aggressor was. It cannot be stated as a universal rule that whenever the injuries are on the body of the accused persons, a presumption must necessarily be raised that the accused persons had caused injuries in exercise of the right of private defence. The defence has to further establish that the injuries so caused on the accused probabilise the version of the right of private defence. Non-explanation of the injuries sustained by the accused at about the time of occurrence or in the course of altercation is a very important circumstance. But mere non-
explanation of the injuries by the prosecution may not affect the prosecution case in all cases. This principle applies to cases where the injuries sustained by the accused are minor and superficial or where the evidence is so clear and cogent, so independent and disinterested, so probable, consistent and creditworthy, that it far outweighs the effect of the omission on the part of the prosecution to explain the injuries. (See Lakshmi Singh v. State of Bihar (1976) 4 SCC 394 : AIR 1976 SC 2263) A plea of right of private defence cannot be based on surmises and speculation. While considering whether the right of private defence is available to an accused, it is not relevant whether he may have a chance to inflict severe and mortal injury on the aggressor. In order to find whether the right of private defence is available to an accused, the entire incident must be examined with care and viewed in its proper setting. Section 97 deals with the subject-matter of right of private defence. The plea of right comprises the body or property (i) of the person exercising the right; or (ii) of any other person; and the right may be exercised in the case of any offence against the body, and in the case of offences of theft, robbery, mischief or criminal trespass, and attempts at such offences in relation to property. Section 99 lays down the limits of the right of private defence. Sections 96 and 98 Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 34 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 give a right of private defence against certain offences and acts. The right given under Sections 96 to 98 and 100 to 106 is controlled by Section 99. To claim a right of private defence extending to voluntary causing of death, the accused must show that there were circumstances giving rise to reasonable grounds for apprehending that either death or grievous hurt would be caused to him. The burden is on the accused to show that he had a right of private defence which extended to causing of death. Sections 100 and 101 IPC define the limit and extent of right of private defence.
15. Sections 102 and 105 IPC deal with commencement and continuance of the right of private defence of body and property respectively. The right commences, as soon as a reasonable apprehension of danger to the body arises from an attempt, or threat to commit the offence, although the offence may not have been committed but not until there is that reasonable apprehension. The right lasts so long as the reasonable apprehension of the danger to the body continues. In Jai Dev v. State of Punjab [AIR 1963 SC 612] it was observed that as soon as the cause for reasonable apprehension disappears and the threat has either been destroyed or has been put to route, there can be no occasion to exercise the right of private defence.
16. In order to find whether right of private defence is available or not, the injuries received by the accused, the imminence of threat to his safety, the injuries caused by the accused and the circumstances whether the accused had time to have recourse to public authorities are all relevant factors to be considered. Similar view was expressed by this Court in Biran Singh vs State of Bihar (1975) 4 SCC 161). (See Wassan Singh vs State of Punjab (1996) 1 SCC 458) and Sekar vs State (2002) 8 SCC
354."
46. Relying upon the landmark judgment in the case of Lakshmi Singh vs State of Bihar reported in AIR 1976 SC 2263, the Hon'ble Supreme Court in James Martin (supra) has observed that non- explanation of the injuries sustained by the accused will not affect the prosecution case in all circumstances. The facts and circumstances of Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 35 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 each case are to be dealt with separately on the basis of the evidence available on record.
47. In the present case, although there is a stand taken by the defence that there is a cross-case registered at Crime No.148 of 2001 against the complainant party wherein there is specific allegation of firing a gunshot by the accused-Narendra causing injuries to Roop Singh @ Ram Singh. Apart from the aforesaid statement, the medical report of Roop Singh is also exhibited in the present case. The fact remains that this Court has considered the aspect that the accused-appellants were aggressor in the matter. They assaulted Rajendra and Narendra who sustained 9 and 14 injuries respectively by means of lathis. Rajendra succumbed to the injuries. The Dehati Nalishi was recorded at the spot at the instance of Rajendra and on the basis of which the FIR was lodged and a case was registered. It was not a case where only a single blow was inflicted in the heat of passion.
48. The stand taken by the defence that while the accused-appellants were going to attend the court proceedings at Gadarwara to get their statements recorded, the complainant party stopped them and asked them not to go to the Court to give the statements and on refusing the same, gunshot was fired by Narendra through his 12-bore gun which hit on the stomach of Roop Singh. The said FIR does not disclose that in the same incident, how the injuries are caused to Rajendra and Narendra because the statement of Roop Singh was also recorded in the form of dying declaration wherein he stated that as soon as the gunshot was fired, they ran away. Thus, non-explanation of injuries to either parties is on both i.e. the prosecution of the present case and prosecution in the Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 36 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 cross-case registered against the complainant of the present case. Therefore, individually entire evidence is required to be seen.
49. After going through the entire evidence available on record in the foregoing paragraphs, it is clear that apart of registration of the cross- case, no other evidence has been placed on record in defence.
50. As this Court has already held that the accused-appellants were aggressor and in the course of which they inflicted injuries on Rajendra and Narendra by means of lathis consequent to which Rajendra died during treatment. Under these circumstances, it cannot be said that the accused-Narendra in the cross-case fired a gunshot on Roop Singh through his gun. If the argument of the defence is accepted as it is then there is every possibility that the gunshot may be fired in self-defence because there was only one gunshot injury in the counter case. Merely the injury sustained by the appellant-Roop Singh not being explained by the prosecution will not help the case of the defence in any manner. Conclusion
51. Even though the eyewitness to the incident namely Inder Singh (PW4) has not supported the prosecution and was declared hostile, there is sufficient material available on record to connect the accused- appellants with the crime. There is corroborative medical evidence that the complainant Rajendra (since dead) and his brother Narendra had received injuries on various parts of their bodies and during treatment, Rajendra succumbed to the injuries inflicted upon him. It is clear from the statements of Dr. N.K. Bajpai (PW6), Dr. Prashant Nema (PW14) and Dr. Mukesh Shrivastava (PW7) that there are as many as 9 injuries Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 37 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 over the body of Rajendra and 14 injuries over the body of injured Narendra (PW12) caused by hard and blunt object.
52. Further, injured Narendra (PW12) who is the brother of Rajendra (since deceased) has supported the prosecution case and has narrated the same story. He stated that at about 9.30 in the morning, when he along with his brother Rajendra were going to attend the court proceedings at Gadarwara and as they reached in Surela near Dudhi river, all of sudden the accused persons namely Ghanshyam, Rishi, Vijay, Komal, Mohan Thakur, Roop Singh, Arjun and Jagdish armed with lathis came there and started assaulting them with lathis as a result of which 12-bore gun which he was carrying and the bag containing bullets was dropped. Somehow, they ran away and went to Village Surela in Suresh Shukla's house to save themselves. This witness was cross-examined and nothing could be elicited which may make his evidence suspicious. It is settled position under the law that the evidence of relatives cannot be discarded simply on the ground that they are interested witnesses.
53. Insofar as omission and contradiction is concerned, reference can be had of the decision of the Hon'ble Supreme Court in the case of Baldev Singh vs State of Punjab reported in (2014) 12 SCC 473 wherein it is held as under :
27. We may now consider the submission of Mr Sharan that there were improvements in the deposition of PW 3 over his statements recorded during the investigation under Section 161 CrPC. The Explanation under Section 162 CrPC provides that an omission to state a fact or circumstance in the statement recorded by a police officer under Section 161 CrPC may amount to contradiction if the same appears to be significant and otherwise relevant having regard to the context in which such omission Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13 NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 38 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006 occurs and whether any omission amounts to a contradiction in the particular context shall be a question of fact. Thus, unless the omission in the statement recorded under Section 161 CrPC of a witness is significant and relevant having regard to the context in which the omission occurs, it will not amount to a contradiction to the evidence of the witness recorded in court.
54. The ocular evidence available on record is duly corroborated with the medical evidence coupled with the fact that death of Rajendra is homicidal in nature and the presence of appellants at the place of occurrence is established by the prosecution. Hence, the findings of guilt recorded by the learned trial Court deserve to be confirmed.
55. To sum up, on a re-appreciation of the entire evidence in the light of reasoning assigned by learned trial Judge, it can safely be concluded that the prosecution established its case beyond a reasonable doubt. Thus, in the light of the overwhelming evidence and the factual and legal scenario as projected above, the learned trial Judge did not commit any illegality in holding that it was the appellants who formed an unlawful assembly and in furtherance of common object assaulted Rajendra and Narendra by means of lathis causing grievous injuries on them and subsequently, Rajendra succumbed to the injuries so sustained.
56. For the foregoing reasons, none of the grounds raised against legality and propriety of the impugned convictions is sustainable. Considering the seriousness of offence and the manner in which it was committed, the convictions in question deserve to be and are hereby affirmed as well-merited.
57. In the result, the appeals are dismissed and impugned convictions of the appellants and consequent sentences are hereby affirmed.
Signature Not Verified Signed by: VINOD VISHWAKARMA Signing time: 17-10-2024 11:39:13NEUTRAL CITATION NO. 2024:MPHC-JBP:51063 39 CRA Nos.2360 of 2005, 2405 of 2005 and 30 of 2006
58. The appellant-Jagdish Prasad is in jail. He is directed to serve the remaining part of the sentence as awarded by the trial Court. The other appellants namely Komal, Vijay Singh, Roop Singh, Ghanshyam, Mohan Singh, Rishi Kumar and Arjun Singh are on bail, they are directed to surrender before the trial Court forthwith for serving the remaining jail sentence, failing which trial Court shall be at liberty to issue arrest warrants against them.
59. A copy of this judgment along with the record of the trial Court be sent to the court concerned for information and necessary compliance. Let a copy of this judgment be also sent to the concerned jail authorities for compliance and necessary action.
(G.S. AHLUWALIA) (VISHAL MISHRA)
JUDGE JUDGE
VV
Signature Not Verified
Signed by: VINOD
VISHWAKARMA
Signing time: 17-10-2024
11:39:13