Madhya Pradesh High Court
Laxmansingh & Ors. vs State Of M.P. on 16 September, 2021
Author: Vivek Rusia
Bench: Shailendra Shukla, Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
D.B.:Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Shailendra Shukla, JJ.
Criminal Appeal No.42/2009
1 Mahendra Singh S/o Shri Mohan Singh
Ji, aged about 25 years, Occupation-
Agriculturist, R/o Village Semalkhedi,
Thana Nalkheda District Shajapur, M.P.
2 Dashrath Singh S/o Shri Mohan Singh
Ji, aged about 22 years, Occupation- Appellants
Agriculturist, R/o Village Semalkhedi,
Thana Nalkheda, District Shajapur, M.P.
3 Noksingh S/o Chandan Singh Ji, aged
about 32 years, Occupation-
Agriculturist, R/o Village Semalkhedi,
Thana, Nalkheda, District Shajapur,
M.P.
V/s
State of Madhya Pradesh through
Police-Station- Nalkheda, District Respondent
Shajapur, M.P.
Shri Nilesh Dave, learned counsel for the appellant No.3 .
Shri Navneet Kishore Verma, learned counsel for the appellant
No.2.
Shri Amit Singh Sisodia, learned Government Advocate for the
respondent/State.
Criminal Appeal No.121/2009
1 Laxman Singh S/o Madan Singh, aged
about 34 years, Occupation-
Agriculturist, R/o Village Semalkhedi,
P.S. Nalkheda, District Shahapur, M.P.
Appellants
2 Bhanvar Singh S/o Madan Singh, aged
about 45 years, Occupation-Agriculturist
R/o Village Semalkhedi, P.S. Nalkheda,
District Shajapur, M.P.
3 Lokendra Singh S/o Bhanwar Singh,
aged about 21 years, Occupation
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Student, R/o Village Semalkhedi, P.S.
Nalkheda,District Shajapur, M.P.
V/s
State of Madhya Pradesh through
Police-Station- Nalkheda, District Respondent
Shajapur, M.P.
Shri Nilesh Dave, learned counsel for the appellants.
Shri Amit Singh Sisodia, learned Government Advocate for the
respondent/State.
JUDGMENT
(Delivered on 16th September 2021) PER VIVEK RUSIA, J:-
Vide judgment dated 31.12.2008, the appellants have been convicted for the offences punishable under Section 147, 148, 302/149 of Indian Penal Code and sentenced to undergo 6 months R.I., 1 year R.I. and imprisonment for life and pay a fine of Rs.5,000/- each, in default of payment of fine to undergo Simple Imprisonment for three years respectively.
(2). Brief facts of the case leading to the filing of these criminal appeals are as under:
On 19.03.2008 near about 03/04:00 PM, the complainant Chandrabhan @ Chintu (PW-1) was sitting in front of west block of Village Semalkhedi and the deceased Dilip Singh was also sitting in front of his house . These six appellants came in their motorcycle with the stick in their hands and they have started assaulting Dilip Singh on his head, back, legs etc. He started bleeding and shouted for help. Dilip Singh Chandrabhan @ Chintu ((PW-1)-1) and Daulatsingh and Rajveer Singh reached there, thereafter, all accused persons fled away from the spot and while going away, the accused persons threatened the deceased that next time they would kill him. Chandrabhan Singh @ Chintu
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called the Maruti vehicle and took the Dilip to Hospital. Chandrabhan Singh lodged an FIR in police station Nalkheda, which was registered at Crime No.61/2008 Ex.P/-1 for the offence punishable under Section 147, 148, 323, 325 and 506 of I.P.C. against all these appellants. After registration of the FIR, information was sent to the Magistrate with a delay of 3 days. The injured Dilip was sent for medical examination. Vide letter Ex.P/24, the police has requested for recording the dying declaration of the deceased but the concerned Doctor has stated that the injured is not in a position to give a statement. After preliminary medical examination at Primary Health Center, the injured was referred to the higher hospital for treatment. On 25.01.2008, Dilip Singh died at 01:14 PM. Information was sent through telephone to the police station Sayogitaganj where it was registered at merg No.133/2008 Ex. P/25 and taken up for investigation.
(3). During the merg investigation, Safina form Ex.P/2 was issued. Dead body panchnama was prepared vide Ex.P/3. After post-mortem, the report was submitted vide Ex. P/29. During the investigation, a spot map was prepared. All the accused persons were arrested vide Ex. P/5 to Ex.P/10. Their memorandum statement vide Ex. P/11 to P/16 were recorded and on their memorandum statement sticks were seized from the appellants vide Ex. P/17 to Ex. P/22. Before the death, the statement of Dilip was recorded under section 161 of Cr.P.C. vide Ex. P/28, which was treated as a dying declaration. The documents related to the treatment of Dilip Singh were seized as articles 1 to 23 vide panchanama Ex. P/27.
(4). After completion of the investigation, the police has filed the charge sheet against all the appellants. The trial was
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committed to the session Court on 28.07.2008. The learned Sessions Judge has framed the charges under Section 147, 148 and 302 of I.P.C. and in alternate 302/149 of I.P.C. The appellants denied all the charges and pleaded for trial.
(5). The prosecution has examined as many as 11 witnesses, got marked 29 documents as Ex.P/1 to Ex. P/29. The appellants in their defence have examined Mansingh as DW-1 and got exhibited four documents as Ex.D1 to Ex. D/4.
(6). After hearing the arguments of defence counsel as well as public prosecutor, learned Sessions has framed four issues for adjudication as follows:-
(i). Whether the death of Dilip Singh was homicidal other than the normal circumstances?
(ii). Whether all the accused have independently or with common intention have murdered Dilip Singh?
(iii). Whether the accused persons have committed the offence with an intention and knowledge?
(iv). Whether the appellants have committed any other offence and if yes then which offence?
(7). After the evidence given by the the prosecution, statements of the accused persons under section 313 of the Code of Criminal Procedure were recorded. They denied all the incriminating circumstances appearing in the evidence of prosecution witnesses.
(8). After evaluating the evidence and perusing the oral and documentary evidence on record came to a conclusion that the prosecution has proved the guilt of the accused persons for the offences alleged against them hence , convicted the accused and also awarded the sentence as mentioned above. This is impugned in this appeal.
We have heard the learned counsel for the parties and perused the record.
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(9). As per the undisputed facts, the appellants and the deceased are residents of Semalkhedi and known to each other.
(10). The prosecution has examined Chandrabhan @ chintu as (PW-1) who has stated that near about 04:00 PM, he was sitting in front of his house situated at Semalkhedi. From the side of the well of Laxman, all the accused viz Laxman, Mahendra Singh, Nok Singh, Dashrath Singh, Lokendra Singh and Bhawnwar Singh came in three motorcycles armed with a stick in their hands. Other side of the road Dilip Singh was sitting and immediately after reaching there, they have started assaulting him with the sticks. Dilip Singh shouted then Rajveer Singh and Daulat Singh reached there , accused persons ran away. After reaching there , he found that the hands and legs of Dilip Singh were broken and one injury back side of the head and he become unconscious. All the accused have said that today he has been saved but next time they would not leave him. Immediately he called Maruti through Bharat and took the injured to Nalkheda Police Station and also lodged a report in Police Station . He has admitted his signature in Ex. P/1 from A to A. From the Nalkheda Hospital, Dilip Singh was referred to Ujjain and from Ujjain to M.Y Hospital where he died. By way of Safina form, he was called by the police. He admitted his signature in Safina form Ex.
P/2. According to him because of the previous enmity, the appellants have assaulted Dilip Singh. He was cross-examined at length by the defence counsel but his testimony remained uncontroverted. He has denied that he is having any ill-will with the deceased to give false evidence because family members of Laxmansingh gave evidence against him in case of Dacoity and murder.
(11). Prosecution has examined Daulatsingh as (PW-2), who has
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also supported the case of the prosecution and he was cross- examined at length. He saw the injuries on both legs, hands and head of the deceased on the spot. He was also cross-examined and various suggestions were given that he is an interested witness for the implication of these appellants. He has denied any dispute with the family of the appellants. He has specifically denied that because of the enmity during the panchayat election, he gave false evidence against the appellants.
(12). Police has recorded the statement of deceased Dilip under section 161 of Cr.P.C. on 23.08.2008 in which he has fully narrated the incident that took place on 19.03.2008. According to him, the appellants have suddenly started hitting on his hands by means of sticks and he sustained injuries on his hands and legs.
Upon shouting Chandrabhan (PW-1), Daulat Singh (PW-2) and Rajveer came there, thereafter he became unconscious and regain the conscious in the hospital at Indore and the report had already been lodged by Chandrabhan (PW-1) in the police station. He has also stated about the previous enmity with the Laxman Singh.
(13). Learned counsel for the appellants submits that the statement under section 161 of Cr.P.C. has wrongly been treated as a dying declaration of the deceased by the learned trial court. The statement of the deceased was given before his death is treated as a dying declaration as per Section 32 of the Indian Evidence Act. There is no prescribed format for giving and recording the dying declaration. Initially, the FIR was registered under section 307of I.P.C. against all the appellants and during the treatment, Dilip died on 25.03.2008. Investigating Officer has already recorded his statement under section 161 of Cr.P.C. on 23.03.2008 in which he has narrated the entire incident as stated by Chandrabhan (PW-1) and Daulat Singh (PW-2) in their
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deposition and within two days of recording the statement of Dilip Singh died. There is corroboration with the statement of PW-1 and PW-2 coupled with the antemortem injuries suffered by Dilip Singh therefore, the statement under section 161 of Cr.P.C. of deceased has rightly been treated as a dying declaration by the trial court. The legal position is therefore well settled that the FIR lodged by the deceased would attain the character and legal status of the dying declaration if the victim dies before examination in the court, as held by the Supreme Court of India in the case of Dharam pal vs State of CG reported in (2008)17 SCC 337. The dying declaration can be the sole basis of conviction only when it is " trustworthy. Voluntary, blemish and reliable as held by the Apex court in the case of Poonam bai vs State of CG. reported in 2019(2)SCC(Cri) 754.
(14). So far as to arrest memos and seizure memos of sticks from the possession of the appellants are concerned although the independent seizure witnesses have turned hostile but they have admitted their signature in all the seizure memos. The police witnesses have duly proved the arrest memos and seizure memos of these appellants, therefore, even if the independent witnesses have turned hostile, the arrest memo and seizure memo cannot be disbelieved, thus there is no reason for the police witnesses to give false evidence against these appellants.
(15). So far as injuries sustained by Dilip are concerned, immediately after the incident, he was taken to the community health center,Nalkheda where he was attended by Dr. J.P. Yadav, Medical Officer, who found seven injuries and referred him to Ujjain for the purpose of X-ray. According to him, all the injuries were caused by hard and blunt objects. The injured was not in a position to give a statement and he was unconscious. Injury No.1
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was a lacerated wound on an occipital region. The rest of the injuries were on the hands and legs. Injury No.5 was a lacerated wound on the left ear. On suggestions given by the defence counsel, he has specifically denied that none of the injuries came due to the accident. After the death, the post-mortem was conducted by Dr. N.M. Hunda (PW-11). According to him, injury No.1 was on the occipital region and all the injuries cumulatively were sufficient to cause the death. During the cross-examination, he has stated that injuries on the head, leg and back were not on the vital part and further clarified in para 6 that no injury was found on the brain and the injury on the head was not fatal. In view of the aforesaid evidence, learned counsel for the appellants submits that there was no intention to murder the deceased. The appellants never went there with the intention to kill him otherwise they would have been armed with the deadly weapon.
(16). As per the medical report, the Dilip did not die in normal circumstances. The death was due to failure of the respiratory system and as a result of injuries sustained by him, therefore, the death of Dilip is homicidal in nature. It is also not in dispute that the deceased immediately after assault become unconscious and was not in a position to give a statement. He remained in treatment for 3-4 days and died. The possibility of death due to infection has been denied by the doctor. Therefore, the trial court has rightly held that the deceased died because of the cumulative effect of all the injuries.
(17). Now the Only issue which requires our consideration is whether the appellants have rightly been convicted under section 302/149 of I.P.C or this is the case of culpable homicide not amounting to murder ?
(18). Learned counsel for the appellants further argued that the
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offence falls under section 304 Part I of I.P.C. as it is culpable homicide not amounting to murder. In support of his contention, he has placed reliance on the judgment passed by the Apex Court in the case of Santhanam Vs. State of T.N. AIR 2009 SC (Supp) 1085 in which the deceased sustained the injury on his head by means of a wooden log the Apex Court has held that the accused therein has wrongly convicted under section 302 of I.P.C.
(19). In view of the above marshalling of the evidence, it is not a case where the crime has been committed out of the sudden provocation or heat of passion. The deceased was sitting in front of his house, the appellants came in the three motorcycles armed with sticks and started assaulting him without any deliberation of altercation with Dilip Singh. They mainly assaulted on both the hands and legs but the deceased sustained one injury on his head.
As per the doctors that injury was not sufficient to cause death as no injury on the brain, although he suffered fractures on his both hands and legs, therefore, there was no intention on part of the appellants to murder the deceased otherwise they would have armed with the deadly weapon. Dilip Singh in his statement recorded under section 161 of Cr.P.C. stated that all of sudden, the appellants have started assaulting his hands and legs. The Apex Court in the case of Santhanam (supra) as per exception 2 and 3 of Section 300 corresponds with clause (b) of Section 299, the distinguishing feature of the mens rea requisite therein is the knowledge possessed by offender regarding the particular in the incident only the intention to causing bodily injury coupled with the offender's knowledge of the likelihood of such injury causing the death of the particular victim, is sufficient to bring killing within the ambit of this clause. Whether the offender intended to inflict the injury in question and once the existence of the injury is
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proved the intention to cause it will be presumed unless the evidence or the circumstances warrant an opposite conclusion. It is not the allegations in the statement recorded under section 161 of Cr.P.C. of Dilip that these appellants came there with the premeditated mind to kill him. They came and started assaulting him on his hands and legs while going from the spot that today he has been survived but next time they would not leave him alive. As per the treatment sheet, the deceased suffered thrombosis in his hand because of fracture and he was advised for operation. As per the consent given by a relative of the deceased that this operation may likely cause his death but despite that operation is a must. After this operation he died, the doctor and surgeon have not been examined in this case by the prosecution, therefore, in our considered opinion, the present case does fall under the mandate of 3rd clause of section 300 I.P.C. hence the appellants are liable to be convicted under section 304 Part I of I.P.C.
(20) In the case of Satish Kumar v. State of Haryana, (2019) 9 SCC 529 it is held by the Supreme Court of India that
9.In view of the aforesaid, we do not think that the condition and man-
date of third clause of Section 300 IPC that the bodily injury intended to be inflicted was sufficient in the ordinary course of nature to cause death has been proved and established beyond doubt. Pertinently, it is under this clause alone that the present appellant has been convicted for murder under Section 302 read with Section 300 IPC and sentenced to life imprisonment. Accordingly, the conviction of the appellant Satish Kumar is converted from Section 302 to Part I of Section 304 IPC. Other convictions are maintained and not interfered with. (21). In the case of Jugut Ram v. State of Chhattisgarh, (2020) 9 SCC 520 the Apex court has held as under :-
6.A lathi is a common item carried by a villager in this country, linked to his identity. The fact that it is also capable of being used as a weapon of assault, does not make it a weapon of assault simpliciter. In a case like the present, of an assault on the head with a lathi, it is always a question of fact in each case whether there was intention to cause death or only knowledge that death was likely to occur. The circumstances, manner of assault, nature and number of injuries will all have to be considered cumulatively to decipher the intention or knowledge as the case may be. We do not consider it necessary to dilate on the first principles laid down in this regard in Virsa Singh v.State of
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Punjab[Virsa Singhv.State of Punjab, 1958 SCR 1495 : AIR 1958 SC 465 : 1958 Cri LJ 818] , which stand well established. Suffice it to notice from precedents that in Joseph v.State of Kerala [Joseph v.State of Kerala, 1995 SCC (Cri) 165] , the appellant dealt two blows on the head of the deceased. The deceased died two days later. The post-
mortem report found lacerated injury on the head and internal examination revealed fracture to the occipital bone extended up to the temporal bone. The High Court convicted the appellant under Section 302 IPC holding that the injury caused by the lathi was sufficient to cause death of the deceased. This Court observed as follows: (Joseph case [Josephv.State of Kerala, 1995 SCC (Cri) 165] , SCC p. 167, para
3) "3. ... The weapon used is not a deadly weapon as rightly contended by the learned counsel. The whole occurrence was a result of a trivial incident and in those circumstances the accused dealt two blows on the head with a lathi, therefore, it cannot be stated that he intended to cause the injury which is sufficient (sic). At the most it can be said that by inflicting such injuries he had knowledge that he was likely to cause the death. In which case the offence committed by him would be culpable homicide not amounting to murder. We accordingly set aside the conviction of the appellant under Section 302 IPC and the sentence of imprisonment for life awarded thereunder. Instead we convict the appellant under Section 304 Part II IPC and sentence him to five years' RI."
7.In Chamru v. State of M.P.[Chamru v. State of M.P., AIR 1954 SC 652 : 1954 Cri LJ 1676] , the appellant dealt a blow on the head of the deceased with a lathi and which proved fatal. The injury was, medically opined, sufficient in the ordinary course to cause death. Conviction under Section 302 IPC followed. This Court observed as follows: (AIR p. 653, paras 5-6) "5. It now remains to consider whether the offence which he committed falls within the first part or the second part of Section 304 of the Penal Code. When the fatal injury was inflicted by the appellant on the head of the deceased by only one blow given in the manner alleged by the prosecution it could as well be that the act by which death was caused was not done with the intention of causing death or of causing such bodily injury as is likely to cause death. The act appears to have been done with the knowledge that it was likely to cause death, but without any intention to cause death or to cause such bodily injury as is likely to cause death within the meaning of Part II of Section 304 of the Penal Code.
6. We accordingly allow the appeal to this extent that the conviction of the appellant under Section 302 of the Penal Code and the sentence of transportation for life awarded to him will be set aside, but the appellant will be convicted of having committed the offence under Section 304 Part II of the Penal Code and will be sentenced to seven years' rigorous imprisonment."
(22) As a result both these criminal appeals are partly allowed and the following order is passed:
(i) The conviction of all the appellants is converted from Section 302/149 of I.P.C. to section 304 Part-I /149 of the Indian Penal Code and they are sentenced to suffer R.I. for 10 years with no change in
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fine amount.
(ii). The conviction of appellants for the offence punishable under sections 147 and 148 of the Indian Panel Code is hereby maintained and fine amount is also maintained.
(iii) All the sentences shall run concurrently.
(iii). Registry is directed to issue a supersession warrant in compliance with the present judgment so that the appellants may be released forthwith if not required in any other case.
Let a record of the trial court be sent back along with the judgment.
( VIVEK RUSIA ) ( SHAILENDRA SHUKLA )
JUDGE JUDGE
praveen/-
Digitally signed by PRAVEEN
NAYAK
Date: 2021.09.20 18:16:47
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