Madhya Pradesh High Court
Deena Nath Mishra vs The State Of Madhya Pradesh on 10 July, 2012
HIGH COURT OF JUDICATURE MADHYA PRADESH,
JABAPLUR
Single Bench: Hon'ble Mr. Justice N.K.Gupta,J.
CRIMINAL APPEAL No.629 OF 2010
Dinanath Mishra & others.
Vs.
State of Madhya Pradesh.
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Shri Aditya Adhikari, Advocate for the appellants.
Shri Ajay Tamrakar, Panel Lawyer for the respondent/State.
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JUDGMENT
(Delivered on the 10th day of July, 2012) This criminal appeal is preferred by the appellants being aggrieved by the judgment and order of sentence dated 17/3/2010 passed by the 5th Additional Sessions Judge (Fast Track Court), Satna in ST No.104/2009, whereby the appellants were convicted for commission of offence punishable under Section 304 (Part- II) read with Section 34 and Section 323/34 of IPC (4 counts) and sentenced for seven years' rigorous imprisonment with fine of Rs.1000/- and one year's rigorous imprisonment with fine of Rs.250/- (on each count) respectively. In default of payment of fine amount, an additional rigorous imprisonment for six months and two months respectively on each count was directed.
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2. Prosecution case, in short, is that on 03.12.2007 at about 9 to 9.15 AM in the morning the appellants Dilip Mishra and Sandeep Mishra were removing the dirt from Ghur on the land of the complainant Deenbandhu Mishra (PW-1). The complainant Deenbandhu Mishra (PW-1) along with the deceased Babulal, Ashok Mishra (PW-8), Hariom Mishra (PW-2) went to the spot and prevented the appellants to remove the dirt from the land which was owned and possessed by complainant Deenbandhu Mishra etc. and thereafter appellants Dilip Mishra and Sandeep Mishra came with sticks and started assaulting the victims Babulal, Ashok and Hariom. They also assaulted the victim Girja Devi by sticks. Victim Babulal sustained grave injuries on his head whereas victims Ashok and Hariom had also sustained some injuries. On making hue and cry Yugal Kishore, Sunit Mishra and Sadashiv Mishra also came with sticks and they assaulted the complainant Deenbandhu Mishra and Girja Devi. They also assaulted the victims Babulal, Ashok and Hariom in such a position when they were lying on the earth. Complainant Deenbandhu Mishra lodged the FIR Ex.P-1 on the same day at about 11:50 AM at Police Station Sabhapur District Satna. Injured persons were sent to the hospital for their medico legal examination and treatment. Dr. Narendra Kumar Mishra (PW-7) examined the victim Hariom and gave his report Ex.P-10. Dr. Punit Singh Parihar (PW-21) had examined the victims 3 Criminal Appeal No.629/2010 Deenbandhu Mishra, Girja Devi & Ashok, and gave his report Ex.P-44, Ex.P-45 and Ex.P-46. He found that they sustained some simple injuries. Dr. Punit Singh Parihar after examination of victim Babulal prepared a report Ex.P-43 and referred the patient to the bigger hospital.
3. Dr. Ashish Tondan (PW-19) examined the victim Babulal at Sarvoday Hospital Jabalpur. He was brought unconscious. He was vomiting and there was possibility of brain hemorrhage. He sustained so many injuries in his skull, and therefore he was referred for city-scan. Dr. S.M. Chincholikar (PW-18) Radiologist in Charak Diagnostic Centre, Jabalpur gave reports relating to city-scan of the victim Babulal that there was a fracture of left temporal, parietal, right frontal, left occipital, left frontal, and bones were found broken and injuries found even on the brain which were filled with the blood. Dr. Tondan (PW-19) removed some pieces of bones. Some powder of the bones from the head of the deceased Babulal was also removed and ultimately Babulal suffered with brain infection and he was treated. Ultimately he was discharged from the hospital without his complete treatment. The deceased Babulal died in the month of April 2008. The postmortem on his body was done by Dr. Sunil Karkhur (PW-22), who submitted a report Ex.P-47. He found that the deceased died due to head injury and its complication. The police Sabhapur District Satna investigated the matter. The Investigating 4 Criminal Appeal No.629/2010 Officer prepared memos relating to condition of the deceased Babulal from time to time. Various accused persons were arrested and sticks etc. were seized from them. The seized property was sent for forensic analysis to the concerned Forensic Science Laboratory. Various scan reports were collected. Ultimately charge sheet was submitted before the Court of Judicial Magistrate First Class, Satna, who committed the case to the Court of Sessions and ultimately it was transferred to the learned 5th Additional Sessions Judge, Satna.
4. The appellants-accused abjured their guilt. They took the plea that they were not involved in the alleged crime. They were falsely implicated in the matter. Actually it was the complainant party who initiated the crime. Deenbandhu Mishra, Ashok and Hariom went to the spot with sticks and started assaulting the appellants Dilip Mishra and Sandeep Mishra, and therefore they tried to save themselves. In support of the defence, Yugal Kishore (DW-1), Shivprasad Vishwakarma (DW-2) and Radhika Prasad Tiwari (DW-3) were examined.
5. After considering the evidence adduced by the parties, the learned 5th Additional Sessions Judge acquitted the accused Yugal Kishore, Sunit Mishra and Sadashiv Mishra from all the charges, but convicted and sentenced the present appellants as mentioned above.
6. I have heard the learned counsel for the parties.
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7. Learned counsel for the appellants has submitted that it is clear that the appellant Dinanath Mishra did not participate in the assault upon the deceased Babulal, and therefore he could not be convicted for commission of offence punishable under Section 304 (Part-II) of IPC with the help of Section 34 of IPC. Similarly, it is not at all established that who assaulted the victim Babulal. There is no specific allegation against either accused Sandeep Mishra or accused Dilip Mishra about that assault, and therefore they could not be convicted for commission of offence punishable under Section 304 (Part-II) of IPC. In the alternate, it is submitted that the appellants remained in the custody for a longer period and looking to the gravity of offence and their custody period, the sentence may be reduced to the period which they have already undergone in the custody.
8. On the other hand, learned counsel for the State has refuted the submission made by learned counsel for the appellants. He has submitted that the conviction as well as the sentence directed by the trial Court appears to be correct, hence no interference is warranted by this Court.
9. For disposal of the instant appeal, the following points may be considered:
(i) Whether the deceased Babulal died due to injuries caused to him and his death was homicidal?
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(ii) Whether the injuries were caused to the deceased Babulal as well as other victims by the appellants?
(iii) Whether the appellants had intended to kill the deceased Babulal or to assault other victims?
(iv) Whether conviction of the appellants may be reduced from the offence under Section 304 (Part-II) of IPC? and
(v) Whether the sentence directed by the trial Court against the appellants may be reduced?
10. Dr. Punit Singh Parihar (PW-21) and Dr. Narendra Kumar Sharma (PW-7) had examined the various injured persons including victims Hariom, Deenbandhu Mishra, Girja Devi, Ashok and Babulal. Looking to the condition of the deceased Babulal, he was immediately referred to the higher hospital. Thereafter he was examined by Dr. Ashish Tondan (PW-19) at Sarvoday Hospital, Jabalpur and he gave his detailed opinion about the condition of the deceased Babulal. By the evidence of Dr. Punit Singh Parihar (PW-21) and Dr. Narendra Kumar Sharma (PW-7), it is established that the victims Deenbandhu Mishra, Hariom, Ashok and Girja Devi sustained simple injuries whereas condition of deceased Babulal was critical. He sustained fracture in his head at 6-7 places. His brain was also damaged and related cavity was full of blood, and therefore some infection was also caused in his head. After sometime, though treatment was 7 Criminal Appeal No.629/2010 going on, he was discharged from the hospital because he could not be cured. The appellants have suggested to so many eye-witnesses and other witnesses that at the time of death, the deceased Babulal was suffering from paralysis and he had suffered bed sores and other problems, and therefore he died due to those problems. Such suggestions were of no use, because each witness denied the suggestions and looking to the report of Dr. Tondan (PW-19) ans scan report of Dr. Chincholikar (PW-18), it is apparent that 6-7 bones in his skull were broken by the assaults. Also brain was damaged, concerned cavity was full of blood. Therefore, his limbs were not reacting. Such condition continued till his death. He was discharged from the hospital, because no hope was left for his survival. Hence it is clear that the deceased Babulal died due to injuries caused to him and his death was homicidal.
11. Deenbandhu Mishra (PW-1), Hariom (PW-2), Ram Naresh (PW-3), Girja Devi (PW-4), Phool Kumari (PW-5), Ashok (PW-8), Sunil Tripathi (PW-11), Pinku Tripathi (PW-12) etc. were examined as eye-witnesses. They have stated that the deceased Babulal was assaulted by all the accused persons and when other victims went to the spot to save the deceased Babulal and victim Deenbandhu Mishra, they were also assaulted by the accused persons. Witness Deenbandhu Mishra had stated that it was such a complicated quarrel that each victim may say differently 8 Criminal Appeal No.629/2010 about the accused who assaulted that victim. Ultimately, it would be apparent from the evidence of these witnesses that they tried to save the accused Sadashiv Mishra. They have admitted that accused Sadashiv Mishra was not present at the time of quarrel, and therefore the trial Court acquitted him. Similarly, witness Pinku Tripathi (PW-12) has stated in para 3 of this statement that accused Yugal Kishore was not present in the scene of crime. Similarly, one more witness has stated that accused Sunit Mishra was also not involved in the alleged crime, and therefore the trial Court acquitted the accused Sunil Mishra as well. It is suggested to the witnesses that the deceased Babulal was not present at the spot from the beginning. He went for the sharpening of his agricultural appliances and he came after sometime. However, it is clear from the evidence of the witnesses that the deceased Babulal did not sustain the injuries due to fall from bicycle but all the injuries that sustained were caused by the appellants. However, each of the eye-witnesses has admitted that appellant Dinanath Mishra scuffled with complainant Deenbandhu Mishra and they remained in that position till the end of the quarrel. It means that the appellant Dinanath Mishra has not assaulted any of the victims by his own except Deenbandhu Mishra. Under such circumstances, it would be clear that the deceased Babulal was assaulted by the appellants Dilip Mishra and Sandeep Mishra.
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12. The various eye-witnesses turned from the prosecution story as depicted in the FIR. They changed the name of various assailants, who assaulted them. Also they changed the position as to how the quarrel started. However, it is established by the evidence of various witnesses that initially the appellants Dilip Mishra and Sandeep Mishra were removing the dirt from the Ghur and therefore Babulal and Deenbandhu Mishra went to the spot to stop them, but they started quarrel. However, no injury of the appellants Dilip Mishra and Sandeep Mishra is proved by which it can be said that quarrel was started by either Babulal or Deenbandhu Mishra. Therefore, no right of private defence had accrued to the appellants. However, the trial Court on the basis of the judgment of the Hon'ble Apex Court in the case of "Sarman & others Vs. State of MP", (1993 Cr.L.J. 63) has held that it is nowhere clear that out of these appellants, who assaulted on the head of the deceased Babulal, and therefore in the light of judgment in the case of Sarman (supra) the trial Court held that the appellants are liable for commission of offence punishable under Section 304 (Part-II) instead of offence under Section 302 of IPC.
13. If the evidence of various eye-witnesses is perused, then they made omnibus allegations against all six accused persons that they assaulted the deceased Babulal and ultimately accused Yugal Kishore, Sunit Mishra and 10 Criminal Appeal No.629/2010 Sadashiv Mishra were acquitted from all the charges as they were given the benefit of doubt, and therefore though the deceased Babulal sustained 6-7 grievous injuries on his head, it cannot be said against any specific accused that he assaulted on the head of the deceased Babulal. Under such circumstances, the view taken by the learned Additional Sessions Judge appears to be correct.
14. Learned counsel for the appellants has placed his reliance on the judgment of the Division Bench of this Court in the case of "Govinda & others Vs. State of MP", [2006(4) MPLJ 287] to show that if it is not known that who caused the fatal injury to the victim, then offence would be of Section 326 of IPC instead of Section 302 of IPC. At present the judgment of this Court in the case of Govind (supra) cannot be applied in the present case, because 6-7 blows were given on the head of the deceased Babulal, and therefore concerned accused persons had the knowledge that by such assault the deceased Babulal could die, and therefore conviction cannot be reduced to the offence punishable under Section 326 of IPC. It is established that appellants Dilip Mishra and Sandeep Mishra were the persons who participated in assaulting the deceased Babulal, and therefore looking to their common intention, they are liable to be convicted for commission of offence punishable under Section 304 (Part-II) of IPC with the help of Section 34 of IPC.
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15. However, it is apparent that there is no allegation against the appellant Dinanath Mishra that he assaulted the deceased Babulal in any manner, on the contrary it is established by the evidence given by eye-witnesses that the appellant Dinanath Mishra scuffled with the complainant Deenbandhu Mishra. Both of them remained in such a position till the end of the quarrel. Under such circumstances, the appellant Dinanath Mishra had no knowledge about the activity of other co-accused persons, hence common intention of the appellant Dinanath Mishra cannot be presumed with co-accused Dilip Mishra and Sandeep Mishra. Under such circumstances, the appellant Dinanath Mishra cannot be convicted for commission of offence punishable under Section 304(Part-II) of IPC or inferior offence of the same nature relating to the deceased Babulal either directly or with the help of Section 34 of IPC, and therefore conviction under Section 304(Part-II) of IPC directed by the trial Court against the appellant Dinanath Mishra appears to be incorrect.
16. No challenge has been made against the conviction for commission of offence punishable under Section 323/34 of IPC (4 counts) against the appellants, and therefore it is not necessary to discuss about that conviction in detail. It is established by the witnesses that all the victims including Girja Devi, Deenbandhu Mishra,Hariom and Ashok were assaulted by the appellants, and therefore 12 Criminal Appeal No.629/2010 it is clear that each of them were intended to assault each of the victims, who were creating hurdles at the spot, and therefore if the appellants are convicted for commission of offence punishable under Section 323 of IPC with the help of Section 34 of IPC, then no interference is required to be made to that conviction directed by the trial Court.
17. So far as the sentence is concerned, there is no need to interfere in the sentence imposed by the trial Court for commission of offence punishable under Section 323/34 of IPC (4 counts). However, it is submitted by learned counsel for the appellants that the appellants Dilip Mishra and Sandeep Mishra remained in the custody from 5.12.2007 to 22.1.2008 and 1.7.2008 to 17.3.2010 and thereafter they are in custody. Hence, they remained in the custody for more than four years. There was no criminal past alleged against the appellants. The quarrel took place in a spur of moment and the appellants were not intended to kill the deceased Babulal, and therefore in light of the judgment of the Division Bench of this Court in the case of "Lurchriya @ Nurchiya Vs. State of MP", [2006(3) MPLJ 366] sentence may be reduced to the period which they have already undergone in the custody. Similarly, reliance is placed on the judgment of the Hon'ble Apex Court in the case of "Kartar Singh Vs. State of Punjab", (AIR 1988 SC 2122) in which the sentence of the accused persons was reduced to the period of five years' rigorous 13 Criminal Appeal No.629/2010 imprisonment in the case of offence punishable under Section 304 (Part-II) of IPC.
18. The facts as mentioned in the judgment of Kartar Singh (supra) are not similar to the present case. It is apparent that the incident took place in a spur of moment and the appellants never intended to kill the deceased Babulal. There is no criminal past shown against the appellants and they remained in the custody for more than four years. In such circumstances, their jail sentence may be reduced to the period which they have already undergone in the custody by enhancing the fine amount upon these appellants.
19. On the basis of aforesaid discussion, the appeal of the present appellants is partly allowed. The conviction directed by the trial Court against the appellants Dilip Mishra and Sandeep Mishra is hereby confirmed for commission of offence punishable under Section 304 (Part- II)/34, 323/34 of IPC (four counts), but the conviction directed against the appellant Dinanath Mishra for commission of offence punishable under Section 304 (Part- II)/34 of IPC is hereby set aside. He is acquitted from that charge. Remaining conviction against the appellant Dinanath Mishra is hereby maintained. Sentence imposed by the trial Court for commission of offence punishable under Section 323/34 of IPC (4 counts) against all the appellants is maintained, but the sentence for commission 14 Criminal Appeal No.629/2010 of offence punishable under Section 304(Part-II)/34 of IPC for the appellants Dilip Mishra and Sandeep Mishra is reduced to the period which they have already undergone in the custody by imposing fine amount of Rs.20,000/- upon each of the appellants namely Dilip Mishra and Sandeep Mishra). In default of payment of fine, each of them shall undergo for two years' rigorous imprisonment. If fine amount is deposited, then a sum of Rs.35,000/- be provided as compensation to the legal heirs of the deceased Babulal.
20. Office is directed to issue supersession warrants according to the judgment of conviction and order of sentence passed by this Court, forthwith.
21. The appellant Dinanath is on bail. His presence is no more required, before this Court, therefore it is directed that his bail bonds shall stand discharged.
22. A copy of this judgment be sent to the concerned trial Court with its record for information and compliance.
(N.K.Gupta) Judge 10/07/2012 Ansari