Madhya Pradesh High Court
Rewaram Ahirwar vs The State Of Madhya Pradesh on 17 September, 2019
Equivalent citations: AIRONLINE 2019 MP 1078
Author: Subodh Abhyankar
Bench: Subodh Abhyankar
1
HIGH COURT OF MADHYA PRADESH: JABALPUR
SINGLE BENCH: Hon'ble Mr. Justice Subodh Abhyankar
CRIMINAL APPEAL NO.105 OF 2016
Dorendra alias Durendra Singh & another.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.182 OF 2016
Raghunath Ahirwar.
Vs.
State of Madhya Pradesh.
CRIMINAL APPEAL NO.258 OF 2016
Rewaram Ahirwar.
Vs.
State of Madhya Pradesh.
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Shri Madan Singh, learned counsel for the appellants in
Criminal Appeal No.105/2016.
Shri Anurag Shivhare, Advocate-amicus curiae for the
appellant in Criminal Appeal No.182/2016.
Shri Manish Awasthy, Advocate-amicus curiae for the
appellant in Criminal Appeal No.258/2016.
Shri B.S.Thakur, learned Panel Lawyer for the
respondent/State.
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JUDGEMENT
(Delivered on the 17th day of September, 2019) 2 This judgment shall also govern the disposal of Criminal Appeal No.182/2016 and Criminal Appeal No.258/2016 which have been filed by Raghunath Ahirwar and Rewaram Ahirwar respectively and the present appeal has been filed on behalf of Dorendra alias Durendra Singh and Gajju Singh Lodhi as these criminal appeals have arisen out of judgment dated 26.12.2015 passed in Special ST No.13/2013 by the Special Judge under Scheduled Caste/Scheduled Tribes (Prevention of Atrocities) Act, 1989, Damoh, whereby the present appellants have been convicted and sentenced as under:-
Conviction Sentence Default clause
u/s (additional)
304 (Part-II) r/w RI for eight years RI for three
34 of IPC with fine of months.
Rs.2,000/-.
325 r/w 34 of RI for three years RI for two months.
IPC with fine of Rs.1,000/-.
325 r/w 34 of RI for three years RI for two months.
IPC with fine of Rs.1,000/-.
323 r/w 34 of RI for six months RI for one month.
IPC with fine of Rs.500/-.
2. In brief, the case of the prosecution is that on 27.10.2012 an FIR (Ex.P-1) was lodged by complainant Ramesh Ahirwar stating that on 27.10.2012 at around 10 O'clock in the morning the accused persons formed an unlawful assembly and in pursuance of their common 3 object caused the death of Kashiram and causing grievous injuries to Sirdar Bahu and Ramesh, simple injuries to Vidyarani.
3. The case of the prosecution is that prior to around 15-16 years from the date of incident i.e. 27.10.2012, the complainant Ramesh Ahirwar had committed murder of father of appellant-Raghunath Ahirwar which was a reason for unrest amongst the accused persons, hence on 27.10.2012 at around 10 O'clock in the morning when Ramesh was at his home, at that time appellant Rewa Ahirwar, Surendra Lodhi, Gajju Lodhi, Raghunath Ahirwar came and informed him that the Sarpanch had called him, thus, Ramesh and his brother Kashiram (deceased) accompanied the accused persons and went to the house of accused Bahadur Lodhi, there the accused persons caught hold of the complainant Ramesh as also his brother Kashiram and started assaulting them and when Sirdar Bahu, Vidhyarani and Vandana intervened, they were also assaulted by the accused persons, hence on 27.10.2012 at around 1:45 in the noon the FIR (Ex.P-1) was lodged under Sections 147, 148, 149, 506-B, 307, 323 of IPC and Section 3(2)(v) of the SC/ST (Prevention of Atrocities) Act, 1989. 4
4. After investigation the charge sheet was filed before the competent Court and after recording the evidence of the parties the learned Special Judge of the trial Court convicted the present appellants as aforesaid vide its judgment dated 26.12.2015.
5. Learned counsel for the appellants have submitted that the appellants have been falsely implicated in the case and the learned Judge of the trial Court has wrongly appreciated the evidence on record. It is further submitted that even otherwise no cause under Section 304 (Part-II) of IPC is made out, as even according to the case of the prosecution the appellants had caused injuries with the aid of lathis (stick) only. Thus it cannot be said that the appellants had any common intention or knowledge to commit murder of the deceased (Kashiram). Alternatively learned counsel for the appellants have submitted that the appellants are in jail since 26.12.2015 and looking to the period of incarceration, the sentence of the appellants be reduced to the period already undergone by them. Learned counsel has also relied upon a decision rendered by the Apex Court in the case of Daulat Trimbak Shewale and others vs. State of Maharashtra reported as (2004) 10 SCC 715: 2004 Cr.L.J.2825 to submit that no case 5 under Section 304 of IPC is made out as there was no common intention of the accused person to cause death of the deceased Kashiram.
6. On the other hand, learned counsel for the respondent/State has opposed the prayer of the appellants and has submitted that the case has been proved by the prosecution beyond reasonable doubt, as a person has lost his life in the assault by the appellants. It is further submitted that according to Dr.K.L.Adarsh (PW-
16) deceased Kashiram had received as many as nine injuries vide Ex.P-23 and vide Ex.P-43 and P-25 Dr. Jalaj Bajaj, who performed the postmortem of the deceased found eleven injuries and similarly other persons of the complainant party had also received various injuries including grievous injuries to Sirdar Bahu and Ramesh. Thus, it is submitted that there is ample eye witness account available on record connecting the appellants with the alleged offence and as no illegality or jurisdictional error has been committed by the learned Judge of the trial Court, no case for interference is made out.
7. Heard the learned counsel for the parties and perused the record.
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8. From the record this Court finds that the FIR in the present case was lodged by injured Ramesh Ahirwar (PW-1) on 27.10.2012. In the FIR the names of as many as six persons have been mentioned namely, Bahadur Singh Lodhi, Gajju Singh Lodhi, Durendra Lodhi, Rewa Ahirwar, Kailash Lodhi and Raghunath Ahirwar and out of which Bahadur Singh Lodhi and Kailash Lodhi have already been acquitted by the learned Judge of the trial Court, whereas other accused persons have been convicted as aforesaid. In the FIR complainant Ramesh Ahirwar (PW-
1) has clearly stated that on the date of incident when he was in his house along with his brother Kashiram (deceased) at that time, Bahadur Singh Lodhi came to his house and asked him and his brother to accompany to the house of Rewaram. When these two persons, Ramesh and Kashiram reached there, they were badly assaulted by the accused persons. When the assault was going on, his mother Sirdar Bahu, his wife Vandana and sister-in-law Vidyarani also came to intervene but they were also assaulted by the accused persons. Thus admittedly there are many eye-witnesses to the incident, who have also sustained injuries.
9. Complainant Ramesh Ahirwar (PW-1), in his deposition, although has reiterated his version as 7 narrated in the FIR, however he has also made certain improvements like, that when the accused persons started assaulting his brother, they also poured liquor on his face, this is to get over with the fact that he was drunk at the time of incident. He has also stated that he and his brother were confined in a room by the accused persons and he was also tied by them which is also an omission. In his cross examination he has admitted that he and his brother Kashiram had committed murder of father of accused Raghunath some years ago although it is denied by him that after he came out of jail, he had called Raghunath in a meeting and had again assaulted him in which Raghunath had also suffered a fracture and regarding which a case is pending against them. PW-1 Ramesh has also stated that a political rivalry is also going on between them and accused persons. PW-1 Ramesh has also stated that initially appellant Gajju Singh and Dorendra started assault on them and subsequently the accused Rewaram and Raghunath also came out of house of Vidyarani and started beating them with sticks.
10. Similar statement has been made by Vidhyarani Ahirwar (PW-7), who is the wife of deceased Kashiram. She has also stated that she had gone to intervene in the 8 dispute as also her mother-in-law Sirdar Bahu and sister- in-law Vandana Ahirwar (PW-8) but the accused persons had also assaulted them and they had suffered injuries, although she has not named other accused persons Bahadur Singh and Kailash as the assailants, who have already been acquitted by the trial Court. She has also stated that the incident took place in front of the house of appellant Dorendra. Vandana (PW-8), wife of injured Ramesh Ahirwar (PW-1) has also deposed in the same manner. She has also suffered injuries, as according to her, her head was got injured in the assault.
11. So far as the medical evidence is concerned, the prosecution has examined Dr. K.L.Adarsh (PW-16) who conducted the medical examination of the deceased as also other injured persons. According to him deceased Kashiram had suffered nine injuries and all the injuries were caused by hard and blunt object, which is proved by the MLC (Ex.P-23). He also examined Vidhyarani (PW-7) wife of Kashiram, who had suffered three injuries and all of them were simple in nature vide Ex.P-24. He also examined Sirdar Bahu wife of Magan Ahirwar, who had suffered three simple injuries vide Ex.P-25. He also examined injured Ramesh (PW-1) son of Magan Ahirwar, who had suffered as many as nine injuries and out of 9 which the injuries No.5, 6, 7, 8 and 9 were simple in nature and he was also referred for X-ray and it was found that he had suffered a fracture on his humerus bone as also 5th metacarpal.
12. Dr. Jalaj Bajaj (PW-25) had conducted the postmortem of deceased Kashiram and had found 11 injuries on his body, out of which seven injuries were lacerated wound. However, the injury No.11, which was on the parietal and occipital region of the head he had swelling. In his final opinion it is stated that the cause of death is severe bleeding leading to cardio respiratory arrest. He has also stated that the deceased had received extradural hemorrhage on the parieto occipital region of the head. Admittedly the deceased had not suffered any bony injury. Even according to the prosecution witnesses, the appellants had used lathis only in the assault.
13. On due consideration of the aforesaid evidence on record this Court is of the considered opinion that so far as the common intention attributed to the appellants is concerned, that has already been positively proved by the prosecution, however so far as the intention to cause death of deceased Kashiram is concerned, the same requires some consideration.
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14. From the injuries as have been narrated above and found by Dr. Jalaj Bajaj (PW-25) apparently no fracture was found on the body of the deceased and the deceased had died on account of hemorrhage leading to cardio respiratory arrest. It is true that other witnesses have also received certain injuries but except Ramesh none of them have received any grievous injury and even injured Ramesh had suffered a fracture on the humerus bone, which is located on the upper arm of the body as also 5th metacarpal. Thus it cannot be said that he had received any injury on the vital part of his body and even deceased Kashiram had not suffered any bony injury as on his examination, Dr. K.L.Adarsh (PW-16) has found no injury on the head of the deceased, as all the nine injuries were on the other part of the body, which were simple in nature which suggest that the head injury of the deceased was not visible to eyes.
15. Admittedly the weapons of assault, which were used by the appellants was stick only and no sharp edged weapon was used by them. Thus it cannot be said that the intention of the appellants was to cause death of the deceased in any manner, and although the death has occasioned on account of head injury, but even the head injury was not found to be visible on the face of it as the 11 deceased had suffered internal head injury which led to his death.
16. Learned counsel for the appellants has relied upon the judgment of the Hon'ble Apex Court in the case of Daulat Trimbak Shewale (supra) in which the Hon'ble Apex Court had the occasion to consider the nature of injuries in a death case and while appreciating the evidence, it has been held as under:-
"8. We are in agreement with the finding of the courts below that the appellants did share a common intention. But question for our consideration is: what was the common intention? Is it to murder the deceased as held by the two Courts below or was it to merely assault in an attempt to take possession of the disputed land. An over all consideration of the material on record like the motive, nature of injuries caused, and the fact that there were also injuries on the accused indicates that there was a fight between the two groups of people during which fight the deceased suffered the injuries. It is difficult to come to the conclusion that the appellants went and assaulted the deceased with the intention to kill him. If that was the intention there would have been many more injuries on other vital parts of the body, as also the fact that no attempt was made to kill the other two brothers of the deceased even though they were out numbered. The fact that the appellants had sought police help also indicates that they did not intend to take the law into their own hands in the first instance. Further the fact that though many of the appellants carried axes the doctor who conducted the post mortem found only one incised wound on the forehead. This also indicates that the accused persons did not really intend to kill the deceased. At the same time, it is to be noted that the prosecution has not been able to identify who really caused 12 Injury No.12 which caused the death of the deceased. In such circumstances, we think it is not safe to infer that the appellants shared a common intention of causing the death of the deceased, but it would be more appropriate to hold the appellants guilty of causing grievous hurt an offence which is punishable under Section 326 IPC.
9. For the reasons stated above, while partly allowing the appeal we modify the conviction recorded by the two Courts below to one punishable under Section 326 read with 34 I.P.C. and direct the appellants to undergo RI for a period of 7 years. We maintain the conviction imposed on appellants Nos. 2 and 4 awarded by the Courts below under Section 324 read with Section 34, I.P.C. but direct the said sentence to run concurrently."
(emphasized supplied)
17. In the aforesaid case the assault was made by the accused persons by way of sharp edged weapons, however the Apex Court, under the facts and circumstances, still came to a conclusion that no offence under Section 302 of IPC is made out and in fact an offence punishable under Section 326 of IPC is said to be made out. When the aforesaid facts are applied to the facts of the case on hand, in the present case the assault was made by use of sticks only and no apparent serious injury was inflicted on any vital part of the complainant party and as already stated above the deceased had died due to brain hemorrhage. None of the witnesses have also attributed any specific overt act on the part of any 13 particular accused as only omnibus allegations of assault by sticks have been made. In view of the same, it cannot be said that the accused persons had any knowledge that their act may cause the death of the deceased and this leads the Court to only one inescapable conclusion, i.e., that the appellants cannot be convicted even with the aid of Section 304(Part-II) of IPC. Accordingly, their conviction under Section 304 (Part-II) of IPC is hereby set aside but they are conviction under Section 326 of IPC on account of head injury caused to deceased Kashiram and fracture to complainant Ramesh Ahirwar (PW-1). So far as the conviction of the appellants under Sections 325 and 323 of IPC is concerned, the same is hereby confirmed.
18. So far as the sentence part is concerned, under the facts and circumstances, it is reduced to the period already under gone by the appellants, as appellants Dorendra alias Durendra Singh and Gajju Singh in CRA No.105/2016 have already undergone 5 years, 8 months and 15 days, appellant Raghunath Ahirwar in CRA No.182/2016 has already undergone 6 years, 6 months and 12 days and appellant Rewaram Ahirwar in CRA No.258/2018 has already undergone 5 years, 10 months and 26 days. At present all above mentioned appellants 14 are in jail, hence it is directed that they be released forthwith.
19. Accordingly, all these appeals stand partly allowed to the extent as indicated above.
20. A copy of this judgment be sent to the trial Court for information and compliance, if any.
(Subodh Abhyankar) Judge 17/09/2019 Digitally signed by MANZOOR AHMED Date: 2019.09.18 10:10:49 +05'30' Ansari