Madhya Pradesh High Court
Nathu Singh And Anr. vs State Of M.P. Through P.S. Porsa on 31 July, 2007
Equivalent citations: 2008CRILJ770, 2008 CRI. L. J. 770, (2007) 58 ALLINDCAS 576 (MPG) (2007) 3 CRIMES 698, (2007) 3 CRIMES 698
JUDGMENT Abhay Gohil, J.
1. Being aggrieved by the judgment of conviction under Section 302/34 IPC dated 20.4.1995 passed by First Additional Sessions Judge, Morena in S.T.No.336/97, the appellants have filed this Criminal Appeal under Section 374 Cr.P.C. challenging their conviction as well as sentence of Life Imprisonment and fine of Rs.2,000/-and in default of payment of fine further three years R.I.
2. Prosecution story in brief is that on 1.9.1995 when Mahesh nephew of complainant Baijnathsingh went for cattle grazing, he was stopped and beaten by one Gudde Singh. Mahesh came back and narrated the incident to the complainant and family members and it was decided that in the morning they will settle the matter with him. Next day on 2.9.1995 in the morning complainant Baijnathsingh along with his brother Nripat Singh, Rajbahadur, Devendra Singh, Ramveer, Ramavtar and Ganpat went to talk with Gudde Singh at the field of Gokulwari and two other accused Balwan Singh and Nathusingh were also present there. The matter was discussed between them. In the meantime all the accused persons started abusing and at that point of time Gudde Singh told that if you allow buffaloes to enter into the field, I will kill by bullet (goli maar dega). On this Nripat Singh asked him that if you want to kill me by bullet, you may do so. At the same time accused Nathusingh and Balwansingh exhorted and said -kill him by bullet (goli maar do) and thereafter Gudde Singh made three repeated fires by his 12 bore gun on Nripat Singh. Nripat Singh sustained gun shot injuries on his chest, hand and neck and thereafter accused persons ran away from the spot. Injured Nripat Singh was taken to the Police Station in the tractor. In the way he succumbed to the injuries. FIR was lodged by Baijnathsingh at Police Station Porsa. Crime No.149/95 was registered. Marg was also registered as Marg No.18/95 and dead body was referred for the post mortem examination. Investigation was undertaken and spot map was prepared. Plain and blood stained soil including the bullet, clothes of the deceased was also seized and they were referred for chemical examination. Statements of witnesses were recorded. Gudde Singh could not be arrested. It was found that he was absconding and Panchnama to that effect was also prepared and after completing investigation,charge sheet was filed in the absence of Gudde alias Jagmohan Singh.
3. During trial accused Gudde remained absconding. The guilt was abjured by the appellants and their defence was that due to enmity because of the election of Sarpanch they have been falsely implicated. In the trial prosecution examined as many as nine witnesses and trial court after considering the evidence on record the allegation of exhortation was found proved against both the appellants and it was found that the exhortation was made with common intention to kill the deceased and convicted them under Section 302/34 IPC and sentenced them as aforesaid, against which both the appellants have filed this appeal.
4. We have heard the learned Counsel for the parties. Shri V.K.Saxena, learned Senior Advocate submitted that only on the basis of the exhortation the appellants can not be convicted under Section 302/34 IPC and it is not a case of common intention. The appellants were present on their field. He further submitted that the case will not fall under Section 302/34 IPC. He also submitted that in the document Ex.D/4, which is a marg intimation report, the fact of exhortation has not been mentioned. In reply Shri V.S.Chaturvedi, learned Public Prosecutor supported the judgment and prayed for dismissal of the appeal.
5. We have examined the evidence of the witnesses. Baijnath Singh (P.W.1), who is the elder brother of deceased Nripat Singh, has deposed that his nephew had gone for cattle grazing. He was stopped by Nathu and his brother Gudde Singh. He was also beaten by them. The incident was informed to him by Mahesh and in the next morning he alongwith his other brother and villagers went on the spot. Firstly there was conversation between them on the question that why they are stopping their cattle from grazing and thereafter there was wordy quarrel between them. He told them that why they will not allow their own cattle grazing in their own field. At that time Gudde Singh told them that he will kill them by bullet (goli maar denge). His younger brother Nripat Singh told him that if you want to kill me on that count, you may do so and thereafter Balwan Singh and Nathu Singh exhorted and said Gudde Singh that what you are seeing, "fire on them with bullet" (goli maar do) and thereafter Gudde Singh repeatedly made three fires at his brother Nripat Singh, who received fire arm injuries on the chest, hands, shoulder and on the neck and thereafter assailants ran away from the spot. Nripat Singh, who was being taken to the police station, succumbed to the injuries in the way. In the cross examination he has admitted that his father Kalyan Singh and mother is alive and they are not having any previous enmity with the accused persons and there was no quarrel between them before this incident and the accused persons are living in another village at the distance of one km. It was suggested that the deceased was killed by the dacoits but he has denied this allegation. He has admitted that the fires were made by only Gudde Singh and the others had not caused any injury to the deceased. He has also denied that except the fire arm injuries, the deceased had not received any other injury. Similar is the evidence of Rajbahadur Singh(P.W.2), Devendra Singh (P.W.3) and they have also supported the evidence of Baijnath Singh. Mahesh (P.W.4) has deposed that though he was not present on the spot, later on he has reached on the spot and had seen that his uncle had received fire arm injuries. Ramveer (P.W.5) has also supported the evidence of Baijnath Singh. From the evidence of all the aforesaid witnesses, it is clear that the allegation against the appellant is of making exhortation to Gudde Singh to kill Nripat Singh by fire arm. All the witnesses have supported that both the appellants had spoken "Ab dekhta kya hai, goli maar do". Considering the aforesaid evidence corroborated by the medical evidence, trial court convicted the appellants under Section 302/34 IPC and sentenced them as above.
6. After hearing the learned Counsel for the parties, the question in this appeal is whether the appellants are the main assailants. Admittedly, they are not. The only allegation against these two appellants is that they exhorted to kill the deceased by saying "Goli Mar De" and the evidence of exhortation is consistent and unrebutted available against the appellants. Shri Saxena submitted that on the aforesaid evidence, offence under Section 302/34 IPC is not made out as their common intention was not to kill the deceased. Both the appellants were present at the field in the morning along with Gudde Singh but they were not armed with any weapon and it was only Gudde Singh who was having gun in his hand. It has also come in the evidence that all the members of the complainant party had also not gone on the spot with intention either to fire or to beat anybody. There was conversation between the complainant party and the accused persons on the question of stopping the buffaloes from grazing in their own field and thereafter there was wordy quarrel between them. Gudde Singh asked them that he will kill them by bullet (goli maar dega) and on that Nripat Singh replied immediately and asked him to fire at him if he can do. As for such a small dispute, Nripat Singh may not be expecting that Gudde Singh will kill him and at that time both the appellants Nripat Singh and Balwan Singh made exhortation that now he should be killed. The offence of exhortation is not defined under the Indian Penal Code. Whether it will be a part of offence of common intention under Section 34 or will come within the purview of abetment, it is a matter to be considered by this Court in this appeal.
7. Word "exhortation" is defined in 'Advance Law Lexicon" IIIrd Edition 2005 Voll.2 at page 1712, which is as under:
Exhort. To preach, to urge, to persuade. TO EXHORT, PERSUADE. A superior exhorts; his words carry authority with them, and rouse to action; a friend and an equal persuade; he wins and draws by the agreeableness or kindness of his expressions. Exhortations are employed only in matters of duty or necessity; persuasions are employed in matters of pleasure or convenience.
8. Section 107 of Indian Penal Code defines 'abetment' reads as under:
Abetment is constituted by:
(1) instigating a person to commit an offence; or (2) engaging in a conspiracy to commit it, or (3) intentionally aiding a person to commit it.
This means that an act which merely amounts to aiding the commission of an offence is not abetment, but "intentionally aiding" with the dominant intention of the person, who aids it, then it can be said to be the abetment.
9. The first ingredient 'instigating a person to commit an offence' may be taken into consideration for the purposes of 'exhortation'. For that, the prosecution has to prove that the accused aided, abetted, counselled or procured the commission of the principal offence and that he had the intent to aid or encourage its commission. The words aid and abet, Counsel and prosecution may all be used together to charge a person who is alleged to have participated in a crime otherwise than as principal or as accessory after the fact.
10. In this case no doubt there was exchange of words exchange of and the co-accused Gudde Singh first said that he will kill them by bullet and thereafter Nripat Singh taking it casually asked him to kill him if he can do so and thereafter two appellants those who were present there exhorted to Gudde Singh to kill him. The appellants cannot be said to be principal offender, looking to their role in the commission of crime. In fact, it is a weak type of evidence.
11. In the aforesaid background, it can be held that the accused Gudde, who was carrying gun in his hand is the principal offender in the offence, who not only first threatened the deceased and complainant party and thereafter made three repeated fires on the deceased. In such circumstances, the question is whether the appellants who made exhortation, can be punished for the offence under Sections 302/34 IPC as principal offender for the common intention shared by them.
12. In the case of Matadin v. State of Maharashtra , while dealing with a case of similar circumstances where coaccused by using abusive term "Maro sale ko" exhorted main accused who thereby assaulted deceased. Statement of eye witnesses was found corroborated with dying declaration and medical examination showing that injury on person of deceased was sufficient to cause death and conviction of main accused for offence of murder was upheld under Section 302/34 IPC. However, it was held that co-accused not sharing common intention with main accused to cause death of deceased. Though words "maro sale ko" were used by Co-accused in abuse way. It was held that he exhorted main accused to kill the deceased and from that co-accused were found guilty for abetment of offence of hurt not of murder and thereafter his conviction under Section 302/34 was altered to one under Section 324/110 IPC.
13. In Mohan Singh and Anr. v. State of M.P. 1999(2) JLJ 171, considering the various circumstances of the of the incident, it was held that there was not a predetermined, planned case of common intention of the three accused to kill the deceased Bhagat Singh. It was held that it is the weakest language used out of the three and is attributed to have been expressed in the last and it was not considered tobe a case of common intention to kill Bhagat Singh and he was granted benefit of doubt by the Court.
14. In the case of Teja Singh v. Mukhtiar Singh it was held that there was only incriminating evidence against accused that he gave 'Lalkara' and in the absence of any over act the benefit of doubt was given to the accused persons and upheld by the Supreme Court.
15. Considering the aforesaid principle of law, in the case in hand, we have also considered that there was no previous enmity between the parties. They are residing in the adjoining villages and are also having the adjoining fields. Main assailant Gudde Singh, who inflicted three gun shot injuries to the deceased, is still absconding as submitted by the learned Counsel for the appellants. There is no evidence of any premeditation or predetermination that these two appellants were present on the spot along with deadly weapons and there is no other evidence that they participated in the commission of crime. There is also no evidence about their overt act in the commission of crime. It was further submitted that both the appellants are in custody for more than 8 and 1/2 hears. Though the appellant Balwan Singh is the brother of Gudde alias Jagmohan Singh, who is still absconding, but certainly for the overt act of Gudde alias Jagmohan, appellant Balwan Singh can not be convicted as he is the brother of the main assailant Gudde alias Jagmohan. Under the aforesaid circumstances, we are of the view that the case of the appellants will not fall under Section 302/34 IPC, but it would fall at the most under Section 304 part II/34 IPC read with Section 110 IPC.
16. Consequently, we partly allow this appeal, set aside the conviction of the appellants under Section 302/34 IPC, instead convict them under Section 304 Part II/34 read with Section 110 IPC. Since both the appellants have already suffered jail sentence of more than 8 and 1/2 years, we are of the view that it is the sufficient jail sentence and they are entitled to be released on undergone jail sentence. Accordingly, it is directed that the appellants be released forthwith, if not required in any other case. Appeal is partly allowed as indicated above.