Madhya Pradesh High Court
Kishan Kumar And Ors. vs State Of Madhya Pradesh [Alongwith ... on 13 May, 2005
Equivalent citations: 2006(2)MPHT188
JUDGMENT S.L. Kochar, J.
1. Both these appeals arising out of the one and the same judgment and order dated 20-3-2003, passed by the learned Xth Additional Sessions Judge, Indore, in Sessions Trial No. 441/02, hence, they are being decided by a common judgment. By the impugned judgment the appellants in Criminal Appeal No. 329/03 have been convicted under Sections 147 and 302/149 of the Indian Penal Code and sentenced each of them to undergo imprisonment for one year with fine of Rs. 500/- and imprisonment for life with fine of Rs. 500/- respectively. Similarly, the appellant in Criminal Appeal No. 339/03 has been convicted under Sections 148 and 302/149 of the Indian Penal Code and sentenced to rigorous imprisonment for two years with fine of Rs. 500/- and imprisonment for life with fine of Rs. 500/- respectively.
2. The prosecution case as put forth before the Trial Court, in short, is that all the appellants were standing together underneath a Neem Tree in the area known as South Gadra Khedi, Indore, on 14-6-01 in the evening at 7 p.m. They all were abusing each other. Their abuses were over heard by complainant Suresh and his family members. They objected there and also asked them to go away from the said place. The house of the complainant was situated adjacent to the Neem Tree. The appellants asked complainant Suresh to come down from his house. The complainant party including Suresh came down from their house. They were standing on the upper storey. It is said that when deceased Mukesh and complainant Suresh reached near the appellants, appellant Pappan told his companions that both are behaving very rudely, caught them. On this direction given by Pappan to his companions appellant Ranjeet, Premjeet and Golu caught deceased Mukesh from his behind and appellant Kishan caught complainant Suresh. Thereafter, appellant Pappan @ Kishore took out knife. Seeing the knife complainant Suresh and deceased Mukesh raised alarm, attracting mother of Suresh and maternal uncle Tulsiram (P.W. 4) and aunt Sarojbai (P.W. 5). By the time these persons reached near appellant Pappan, appellant Pappan caused a knife blow at the stomach of deceased Mukesh. Mukesh ran away from the scene of occurrence and fell on the ground after going some paces. Thereafter, the appellant fled away from the spot. Deceased Mukesh was taken in auto riksha by complainant Suresh, his maternal uncle Tulsiram, aunt Sarojbai and neighbour Indersingh to M.Y. Hospital, Indore. In M.Y. Hospital Mukesh was medically examined and doctor declared him dead. Complainant Suresh (P.W. 1) lodged 'Dehati Nalish' (Ex. P-l) in police chowki situated in the campus of M.Y. Hospital. On the basis of Dehati Nalish in Police Station Malharganj the Station House Officer G.K. Reddy registered the offence against the appellants under Crime No. 278/01 under Sections 147, 148 and 302/149 of IPC vide FIR Ex. P-18. The spot map (Ex. P-2) was prepared by the Investigating Officer at the instance of complainant Suresh. After completion of inquest of the dead body the same was sent for post-mortem examination and the post mortem was performed by Dr. N.M. Oonda (P.W. 9). His report is Ex. P-5. He found only one stab injury on the chest and one lacerated wound on left arm and one abrasion on left elbow joint. After due investigation charge-sheet was filed against the appellants for the offence as mentioned above.
3. The appellant denied the charges and contended that they were falsely implicated. They examined 3 witnesses in their defence, named Pappan Raghuvanshi, Sunil and Rajesh Jain. Their defence was also that the incident was not witnessed by complainant Suresh (P.W. 1) and later on after registration of the marg intimation report Suresh and other 3 witnesses, i.e., Leelabai (P.W. 2), Tulsiram (P.W. 4) and Sarojbai (P.W. 5) were introduced as eye-witnesses. Learned Trial Court framed charges against the appellants as mentioned hcre-inabove and the appellants were tried. Learned Trial Court after trial convicted the appellants for the offences mentioned above, relying on the testimony of Suresh (P.W. 1), medical evidence and sought corroboration to the testimony of Suresh (P.W. 1) by statements of Leelabai (P.W. 2), Tulsiram (P.W. 4) and Sarojbai (P.W. 5), who according to the Trial Court reached on the spot lateron.
4. The learned Counsel for the appellants has submitted even if the complete prosecution case is accepted, appellants Kishan Kumar, Ranjeet and Golu @ Anil could not be convicted under Sections 147 and 302/149 of IPC and appellant Kishore @ Pappan could not be convicted under Sections 148 of IPC and 302/149 of IPC because the prosecution has failed to establish any motive for the appellants to have intention to commit murder of deceased Mukesh. The prosecution evidence is clearly disclosing the facts that the appellants were talking with each other underneath the Neem tree situated behind of complainant Suresh (P.W. 1). The Neem tree was not standing in the premises owned and in possession of the complainant. It was by the side of the land and appellants were while talking with each other might be also abusing in a friendly relation, but this behaviour of the appellants with each other had offended complainant and his family members and they objected the same. Thereafter complainant Suresh was asked to come from his house and he and deceased reached near the appellants. At that juncture, it is said that appellant Pappan asked to catch hold of the deceased and when deceased Mukesh was caught he dealt a solitary knife blow which landed on the chest of deceased Mukesh, who ran away up to some paces and fell down on the ground. This whole episode is clearly establishing that the incident was not pre-mediated and the same was occurred all of a sudden in a spur of moment on account of trivial issue and appellant Pappan dealt a solitary knife blow to the deceased. It has also been submitted that other simple minor contusion and abrasion found on the person of the deceased have not been explained by the prosecution witnesses. It appears that the deceased sustained the same when fell on the ground. There is no allegation against appellant Pappan that he even tried to cause second blow. For the act of Pappan @ Kishore other appellants could not be held responsible because Pappan was not brandishing knife in his hand and there is no evidence on record that other companions were knowing that Pappan @ Kishore was possessing the knife and will use the same for causing injury to Mukesh, therefore, offence under Section 147 of IPC is not made out because they had formed any unlawful assembly and there standing simplicitor on a public place would not be sufficient to hold that they all formed unlawful assembly and were the members of unlawful assembly. Other appellants were also not having any kind of weapon openly in their hand. Learned Counsel has further submitted that the act of Pappan @ Kishore would squarely fall under Exception 4 of Section 300 punishable under Section 304(1) of IPC and other appellants could not be convicted for offence punishable under Section 302/149 of IPC.
5. In impugnation learned Public Prosecutor for the State has supported the entire judgment and finding of the Trial Court and argued that when there is eye witness account, even if motive is not proved, the statement of eye witness is sufficient for bringing home the guilt of the appellant, as held by the learned Trial Court.
6. Having heard the learned Counsel for the parties and after culling up the entire oral and documentary evidence on record it emerged that the incident had occurred all of a sudden and in sudden fight appellant Pappan (a) Kishore took knife, which was kept by him in his garments and caused a solitary blow landed on the chest of the deceased. He did not cause any other injury to deceased and also did not try to cause all the appellants immediately after injury caused by appellant Pappan ran away from the scene of occurrence. Appellant Pappan had not taken any undue advantage or acted in a cruel or unusual manner. P.W. 1 Suresh, a solitary eye witness relied upon by the Trial Court in his whole deposition has nowhere stated about any kind of previous ill-will or enmity or even strain relation with the appellants. He lodged the Dehati Nalish (Ex. P-ll) and in the said Dehati Nalish names of all the appellants are mentioned and he has named fathers' names of some of the appellants an their addresses, but in Court in Para 7 he has disclosed that he was not knowing the father's name and house number of appellant Kishan, father's name and house number of appellant Golu, father's name and house number of appellant Pappan and house numbers of appellants Ranjeet and Premjeet. He was confronted with Dehati Nalish (Ex.
P-1) and in last part of Para 12 he has admitted that in Dehati Nalish (Ex. P-1) he did not mention the father's name of appellant Pappan, father's name of appellant Golu and said that as to how police had mentioned their fathers' names in Dehati Nalish (Ex. P-l) he could not explain. In Para 15 this witness has also said that appellant Pappan @ Kishore took out the knife which was underneath his pant and shirt. This shows that appellant Pappan was not having knife openly in his hand when Mukesh and Suresh reached near the appellants. There is no evidence on record that other appellants knew the fact of possession of knife by appellant Pappan @ Kishore. The prosecution case itself is that the appellants were abusing each other and this behaviour was objected by Suresh and deceased Mukesh, who were in the apportion of their houses and after their objection they were called to come down if deceased Mukesh and P.W. 1 Suresh would have known the fact of possession of weapon by any of the appellants probably both would not have come down from their houses. This shows that the verbal altercation has culminated into sudden fight/quarrel on account of a trivial issue and during that quarrel appellant Pappan dealt a knife blow. Even there is no evidence on record and the fact stated by P.W. 1 Suresh that when appellant Pappan asked his friends to caught both of them Pappan was having knife in his hand, therefore, the act of Pappan of causing knife blow could be attributed only to him and his act was not pre-meditated Therefore, the other appellants could not be held responsible for the act of causing of solitary knife injury by appellant Pappan. Mere gathering of 5 persons or more than 5 persons is not sufficient to hold that they were having unlawful assembly and common object of the assembly was to commit murder of deceased Mukesh. Even the appellants did not know the fact that their chit chatting or talk with abuses among them will cause over hurt by deceased Mukesh. P.W. 1 Suresh and their family members. They came to know this fact when deceased Mukesh and Suresh raised objection. Therefore, in the light of these facts it would be very difficult to discern that appellants were members of an unlawful assembly whose common object was to commit rioting and also murder of deceased Mukesh. Therefore, the appellants would be responsible for their individual act. According to the statement of P.W. 1 Suresh deceased Mukesh was caught by Ranjeet, Premject and Golu. Premjeet is facing trial before the juvenile Court; therefore, this Court is not recording any finding about him. Appellant Kishan caught P.W. 1 Suresh and for this act all the 3 appellants would be liable for commission of offence of wrongful restrain of deceased Mukesh and P.W. 1 Suresh, punishable under Section 341 of IPC. We, therefore, hold the same. So far as appellant Pappan @ Kishore is concerned, in a sudden quarrel in heat of passion without premeditation and without taking undue advantage he caused only one injury by knife, therefore, his act would fall within the purview of Exception 4 of Section 300, IPC culpable homicide not amounting to murder punishable under Section 304(1) of IPC. For this legal preposition we can safely rely on a Supreme Court decision. Ghapoo Yadav and Ors. V. State of M.P. reported in 2003(2) M.P.H.T. 408 (SC) : AIR 2003 SC 1620.
7. In the result, on the basis of aforesaid factual and legal analysis both the appeals are partly allowed. The conviction and sentence of appellant Pappan @ Kishore under Sections 148 and 302/149 of IPC is set aside, instead he is convicted under Section 304(1) of IPC and sentenced to R.I. for 7 years with fine of Rs. 5,000/-; in default of payment of fine he shall suffer further R.I. for one year. The conviction and sentence of other Kishan, Ranjeet and Anil @ Golu (appellants in Criminal No. 329/03) under Sections 147 and 302/149 of IPC are set aside and they are convicted under Section 341, IPC. At this juncture learned Counsel for the appellant has pointed out that all these appellants remained in jail during the course of trial as well as in this appeal for more than 3 months, whereas for the offence under Section 341 of IPC maximum sentence prescribed is one month simple imprisonment or fine of Rs. 500/- or both, therefore, all these three appellants are sentenced to simple imprisonment for one month and fine of Rs. 500/-; in default of payment of fine they shall undergo S.I. for one month. After realization of the fine amount Rs. 6,000/- be paid as compensation to the legal heirs of deceased Mukesh.