Madhya Pradesh High Court
Abhiman Patel & Ors. vs The State Of M.P. Judgement Given By: ... on 23 April, 2014
Author: Anil Kumar Sharma
Bench: Anil Kumar Sharma
HIGH COURT OF MADHYA PRADESH : JABALPUR
DB : HON'BLE SHRI JUSTICE RAJENDRA MENON &
HON'BLE SHRI JUSTICE ANIL KUMAR SHARMA, JJ.
Cr. Appeal No.1216/1996
Abhiman Patel and others
vs.
State of Madhya Pradesh
---------------------------------------------------------------------------------------------
Shri P.R. Bhave, learned senior counsel with Shri Bhanu Pratap
Yadav, counsel for the appellant.
Shri Sanjeev Singh, P.L. for respondent/State.
--------------------------------------------------------------
JUDGMENT
(23.4.2014) This appeal has been filed under Section 374(2) of the Code of Criminal Procedure by the appellants/accused against the judgment dated 22.7.1996 passed in S.T. No.53/92 by learned First Additional Sessions Judge, Sidhi (M.P.) whereby each one of the appellant no.1 Abhiman Patel and appellant no.2 Devmani has been convicted for the offence punishable under Sections 302 and 147 of the IPC and sentenced to undergo R.I. for life and with fine of Rs.2000/- for the offence under Section 302 of IPC and to undergo R.I. for 1 year for the offence punishable under Section 147 of IPC. Appellant nos.3, 4, 5, 6, 9 and 10 have been convicted for the offence punishable under Sections 302 read with 149 , 147 and 232 of the IPC and sentenced them to undergo R.I. for life with fine of Rs.2000/- for the offences :: 2 ::
Cr. A No.1216/1996
punishable under Sections 302/149 of IPC and R.I. for 1 year for the offence punishable under Section 147 of IPC and R.I. for 6 months for the offence punishable under Section 323 of IPC. Appellant no.7 Ashwini and appellant no.8 Bhola have been convicted for the offence punishable under Sections 302/149, 147, 353, 332 and 323 of the IPC and sentenced them to undergo R.I. for life and with fine of Rs.2000/- for the offence punishable under Section 302/149 of the IPC, R.I. for 1 year each for the offences punishable under Sections 147 and 353 of the IPC, R.I. for 1½ years for the offence punishable under Section 332 of IPC and R.I. for 6 months for the offence punishable under Section 323 of IPC.
2. Brief facts of the case are that on 24.6.1992 at about 8:30 a.m. measurement of land bearing Khasra No.2049 was conducted by Patwari Sheshmani (PW11) and Suryavansh (PW6) in the presence of more than 100 villagers. The said land belonged to Shalik Ram Patel (PW10). It is alleged that the appellants/accused came to the spot and appellant no.2 Devmani snatched Jareeb (Measurement Chain) and appellant no.8 Bhola gave a lathi blow to Patwari Sheshmani thereafter appellant no.1 Abhiman gave a lathi blow to Chandrabhan, who was sitting under a tree at some distance from the Revenue Officer. Thereafter, accused persons started pelting stones whereupon the mob started running. Merg report (Ex.P19) was lodged by Shalik Ram Patel (PW10) and on the basis of which FIR (Ex.P18) was recorded by Sub Inspector, A.P. Dwivedi (PW16).
:: 3 ::
Cr. A No.1216/1996
3. Learned trial Court after trial of appellant no.2 Devmani for the charges of the offences punishable under Section 147, 353, 302/149 of IPC, appellant no.1 Abhiman Patel for the offences punishable under Section 147 and 302 of IPC and other accused persons for the offences punishable under Sections 147, 323 and 302/149 of the IPC and convicted and sentenced them by the impugned judgment as mentioned in paragraph-1 of this judgment.
4. Being aggrieved by the impugned judgment, appellants have preferred this appeal on the ground that the learned trial Court ought to have disbelieved the FIR as the merg intimation (Ex.P19) was lodged earlier in point of time which mentions name of Abhiman Patel alone. The prosecution has failed to prove the motive and common object of unlawful assembly to kill Chandrabhan as such conviction under Section 302 with the aid of Section 149 of IPC is illegal. The trial Court has erred in not accepting the plea of right to self defence. The version of eye-witnesses is not trustworthy because they failed to give explanation of the injuries sustained by members of accused party. The trial Court completely overlooked the fact that Abhiman came to the spot after the incident was over as narrated by witness Hubb Lal (PW7). As the prosecution has failed to produce the medical report of accused persons despite court's order and clear admission by Sub Inspector A.P. Dwivedi (PW16) that accused party also lodged a report and their presence in the police station before :: 4 ::
Cr. A No.1216/1996
recording of merg intimation (Ex.P19) falsifies the entire prosecution story.
5. Learned trial Court has further overlooked the material contradictions and omissions in the statement of prosecution witnesses which render the prosecution case doubtful.
6. The main point for consideration in this appeal is that whether the learned trial Court is justified in convicting the appellants for the offence punishable under Section 302 or under Section 302/149 of IPC and also for the other offences.
7. Learned senior counsel for the appellants has drawn attention firstly towards the merg intimation (Ex.P19) lodged by Shalik Ram Patel on 24.6.1992 at 9:45 a.m. which shows that while he was getting his land Survey No.2049 demarcated, Abhiman Patel and others armed with lathi and Kudari snatched and thrown the chain from Patwari and after beating Patwari, they have killed is brother by beating him with lathi.
Learned counsel for the appellants has drawn attention towards the FIR (Ex.P18) and submitted that the FIR has also been registered on 24.6.1992 at the same time i.e. 9:45 a.m. by the same person i.e. the Sub Inspector A.P. Dwivedi (PW16) who has admitted in his evidence that he has first recorded the merg intimation and thereafter recorded the FIR and further admitted that he has mentioned same time of recording merg intimation and FIR which is 9:45 a.m. :: 5 ::
Cr. A No.1216/1996
8. Learned senior counsel further submitted that in the FIR names of accused have been mentioned and specific allegation has been made that Devmani Patel snatched the chain from Patwari Sheshmani and inflicted 5-7 lathi blows on him thereafter Abhiman Patel, appellant no.2 inflicted lathi blow on the head of his cousin Chandrabhan Patel by abusing and saying "Chori Se Simankan Kara Raha Hai". When his cousin Chandrabhan fell down, Abhiman again inflicted 3-4 lathi blows on Chandrabhan and other accused persons started beating villagers by throwing stones and by using Kudari. Learned senior counsel further submitted that in the FIR, presence of several villagers has also been mentioned on the spot at the time of measurement.
9. Learned senior counsel for the appellants has submitted that since the merg intimation and FIR have been lodged by the same person Shalik Ram, no details have been mentioned at the time of lodging of merg intimation while in the FIR which is recorded at the same time, the details of offence and individual acts of accused persons have been mentioned.
10. Learned senior counsel for the appellants has drawn attention in detail towards the evidence of witnesses and submitted that in cross-examination Hubb Lal (PW7) has admitted that accused Devmani and Lakhpati asked the Patwari that demarcation has been done without giving intimation to them and also in their absence, therefore, demarcation be done before them. Patwari Sheshmani :: 6 ::
Cr. A No.1216/1996
refused for second measurement. Earlier, in examination-in-chief this witness has stated that at the time of measurement accused Devmani came and stated that his land should not be measured as he is doing it illegally and thereafter snatched and thrown the chain from Ram Prasad and Bhagirathi and thereafter altercation started between Patwari and Devmani. Son of Devmani also joined them and thereafter Bhola also inflicted two lathi blows on the knee of Patwari Sheshmani (PW11) and Bhagirath (PW8) has also confirmed the above statement of Hubb Lal (PW7). Learned senior counsel further submitted that Shalik Ram Patel (PW10) has admitted in his cross- examination that earlier land of Survey No.2049 was a government land and he got Patta of this land from Tahsil in the name of his son and brothers Kalika Prasad, Ramsakha Patel and Rajendra Prasad Patel. He has further admitted that about 19 decimal area of Survey No.2049, 10 are land was shown in possession of Lakhpati who is appellant no.3. He has further admitted that the Patta in the name of his brothers was cancelled by Sub Divisional Officer on appeal filed by Lakhpati.
11. Learned counsel for the appellant submitted that no order or demarcation has been seized or produced by the prosecution. It is also admitted fact that there was no intimation to the accused persons who were in possession of the disputed land Survey No.2049 regarding measurement and it is also admitted fact that measurement was started in the absence of accused persons who were having :: 7 ::
Cr. A No.1216/1996
possession over the said land. Some of the witnesses have stated that the measurement was started at about 5:30 a.m. while according to complainant measurement was started at about 8 a.m. Without going into the controversy as to time at which the measurement started, learned counsel for the appellant submitted that it is admitted fact that measurement was started in the absence of appellants and when they reached the spot and saw that measurement is going on, they objected to it. If the Patwari had accepted their prayer of measurement before the appellants, the incident might not have occurred but due to refusal of Patwari suddenly in a spur of moment, it is alleged that fighting started for which it cannot be said that the incident occurred due to common intention of the accused persons. Initially according to the witnesses, some of the accused persons were having altercation with the Patwari and Patwari was beaten by two persons. Suddenly, even according to the prosecution, appellant no.1 Abhiman Patel inflicted lathi blow on Chandrabhan which cannot be said to be the result of common intention of other accused persons. It is further submitted by the learned counsel for the appellant that Dinesh Prasad (PW14) has stated that Devmani inflicted first lathi blow on the head of Chandrabhan due to which Chandrabhan fell down and after that he started running towards southern side. At that time, lathi blows were inflicted by Abhiman behind the head of Chandrabhan due which Chandrabhan fell down and died. Raj Karan (PW9) has also stated that Devmani inflicted first lathi blow to Chandrabhan and when after rising he started running :: 8 ::
Cr. A No.1216/1996
lathi blows were inflicted by Abhiman on the back side of his neck and thereafter Chandrabhan died.
12. Learned senior counsel further submitted that Shalik Ram (PW10) has not mentioned the fact that Devmani inflicted lathi blow on the head of Chandrabhan in Merg intimation (Ex.P19) or FIR (Ex.P18). Although, Devmani has admitted in his examination under Section 313 of the Code of Criminal Procedure that only he has inflicted lathi blow on Chandrabhan but some of the witnesses as mentioned above has stated that lathi blows have been inflicted on the head of Chandrabhan by Devmani and Abhiman.
13. Shalik Ram (PW10) has stated that Abhiman has inflicted lathi blow on the back side of Chandrabhan's head. Dr. R.R. Mishra (PW15) who has conducted the post mortem of Chandrabhan has found no injury on the back side of Chandrabhan's neck. He has found two lacerated wounds on the head and stated that injury no.1 has resulted in fracture on the head and internal damage which was the cause of death.
14. Learned counsel for the appellant has submitted that Doctor R.R. Mishra (PW15) has admitted that injury no.1 may be caused by forcible throwing of stones.
15. Learned P.L. on the other hand submitted that all the accused persons came on the spot with lathi and Kudari and immediately started beating Patwari and other persons, therefore, the trial Court is :: 9 ::
Cr. A No.1216/1996
justified in convicting all the accused persons for the offences punishable under Section 302/149 of IPC and other offences.
16. Learned senior counsel for the appellant submitted that there was no common intention and the incident might not have happened if the Patwari had agreed for measurement of land in presence of accused but his denial was not pre-supposed, therefore, there was no common intention of all the accused persons behind the incident and further the witnesses have admitted that both the sides have thrown stones on each other and accused were also injured in the incident. Therefore, it is a case of free fight between the parties which was a result of denial of Patwari for measurement in the presence of accused. Further, the Patwari has gone to the spot without any order from the Revenue Court and without giving any intimation to the accused persons who were having possession over the disputed land. Therefore, it cannot be said that accused persons were pre-supposed that Patwari will deny for measurement in their presence and for which they have to use force against Patwari and other persons. Since, stones were thrown by both the sides and there was free fight all the appellants cannot be convicted for the offence punishable under Section 302 of IPC with the help of Section 149 of IPC. Hon'ble Apex Court has held in the matter of Puran vs. State of Rajasthan AIR 1976 SC 912 which was followed by this Court in the matter of Malsingh vs. State of M.P. 2000(3) MPLJ 66 that in a case of sudden mutual fight between two parties there can be no question of :: 10 ::
Cr. A No.1216/1996
invoking Section 149 of Indian Penal Code for the purpose of imposing constructive criminal liability on the accused persons. The accused in such a case can be convicted only for the injuries caused by him by his individual act.
17. Therefore, considering the fact that there was sudden fight, it cannot be said that appellants/accused has formed an unlawful assembly. Therefore, the conviction of appellant nos.3 to 10 for the offence punishable under Section 302/149 of IPC is not sustainable because they have not caused any injury to deceased Chandrabhan.
18. So far as individual acts of appellant nos.3 to 10 are concerned, appellant nos.7 and 8 have caused injury to the Patwari for which they have been convicted for the offences punishable under Sections 147, 343, 332 and 323 of IPC. It has been held that appellants/accused were not the members of unlawful assembly, therefore, offence punishable under Section 147 is also not made out. Further, Patwari was doing measurement of land in official capacity has not been established. No order for measurement of land has been produced by the prosecution. Further, he has not issued notice for measurement to any of the parties. Therefore, conviction of appellant nos.7 and 8 for restraining Patwari from performing his official duty i.e. for the offences punishable under Sections 353 and 332 of IPC is not sustainable. However, their individual acts resulted in injury to Patwari, therefore, their conviction for the offences punishable under Sections 323 of IPC seems to be proper.
:: 11 ::
Cr. A No.1216/1996
19. So far as, appellant nos.3, 4, 5, 6, 9 and 10 are concerned, since there was no unlawful assembly, therefore, their conviction for the offence punishable under Section 147 of the IPC is also not sustainable. However, according to witnesses and Dr. V.K. Khare (PW13), they have caused simple injury to Ambika Prasad (PW4), Sheshmani (PW11), Ramchandra (PW2) and Rajkaran Patel (PW9), therefore, their conviction for the offence punishable under Section 323 of IPC seems to be proper.
20. So far as appellant nos.1 and 2 are concerned, the statements of witnesses as mentioned above show that both of them have inflicted lathi blows on the head of Chandrabhan, although, there is minor contradictions but independent witnesses have confirmed that both of them have inflicted lathi blows on the head of Chandrabhan and one of the injury has resulted in death of Chandrabhan, therefore, both of them are responsible for causing death of Chandrabhan but looking to the fact that the incident took place in a spur of moment and there was no intention to kill Chandrabhan and further considering the judgment of this Court passed in the matter of Hemta vs. State of M.P. 1997 (2) JLJ 47 in which it has been held that the incident ensued on sudden altercation and exchange of hot words, one arrow shot unfortunately falling on vital part, offence made is one under Section 304 Part II. Acquitting the appellant for the offence under Section 302 of IPC, Hon'ble Court has convicted the appellants for the offence punishable under Section 304 Part II IPC and sentenced him :: 12 ::
Cr. A No.1216/1996
to undergo R.I. for four years. In the present case, appellants nos.1 and 2 have been in custody for more than 4 years, therefore, sentence already undergone by them seems to be proper and for the other appellants, the sentence of 6 months awarded for the offence punishable under Section 323 of IPC seems to be proper.
21. Therefore, the appeal is partly allowed. Appellant nos.1 and 2 are acquitted from the charges of offences punishable under Sections 302 and 147 of the IPC instead they are convicted for the offences punishable under Section 304 Part II of IPC and sentenced to undergo R.I. for 4 years which they have already undergone during pendency of trial and this appeal. There will be no change in the fine sentence which is Rs.2000/- which has also been paid by them.
22. Appellant nos.3 to 10 are acquitted from charges of offences punishable under Sections 302/149, 147, 353 and 332 of the IPC. Their conviction for the offence punishable under Section 323 of IPC is maintained and conviction and sentence of 6 months R.I. awarded to them are maintained. The said sentence has already been undergone by them during the pendency of trial and this appeal. The fine of Rs.2000/- each deposited by appellant nos.3 to 10 be refunded by the trial Court to them. The bail bonds of appellants stand discharged.
(Rajendra Menon) (A.K. Sharma)
Judge Judge
PK