Madhya Pradesh High Court
Sudarshan Singh vs The State Of Madhya Pradesh on 15 November, 2017
1 Cr.A.No.210/2009
IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT
AT JABALPUR
Cr.A.No.210/2009
1. Sudarshan Singh, aged about 59
years, s/o Gangadeen Bagari,
occupation-Head Constable R/o
Police Line, Panna, District Panna.
2. Shiv Kumar @ Shiva, aged about
22 years, S/o Ramlal Bagari, R/o
Tighra Bujurg, P.S. Saleha,
District Panna, occupation-
Student.
3. Ajay Kumar @ Chhotebeta aged
about 22 years, S/o Natthu @
Ramniwas Bagari, occupation-
Student.
4. Vinay Kumar Bagari aged about
22 years, S/o Ramashraye Bagari,
occupation-student.
5. Rajendra @ Chhutku, aged about
36 years, S/o Haridas Bagari,
occupation-Student.
(Appellants No. 3, 4 and 5 R/o
Navasta, P.S. Nagod and District
Satna.)
..........Appellants.
Vs.
2 Cr.A.No.210/2009
1. State of Madhya Pradesh, through
Police Station Saleha, District
Panna.
..........Respondent.
.................................................................................................................
Present: Hon'ble Shri Justice C.V. Sirpurkar
..................................................................................................................
Shri Vijay Nayak, counsel for the appellants.
Shri A. Singh, government advocate for the respondent /State.
................................................................................................................
ORDER
(15-11-2017)
1. This criminal appeal against conviction under section 374 (2) of the Code of Criminal Procedure is directed against the judgment dated 24.1.2009 passed by Additional Sessions Judge, Panna, in Session Trial No.150/2004, whereby the accused persons/appellants were convicted and sentenced as hereunder:
CONVICTION SENTENCE
Section Act Imprisonment Fine (In Rs.) Imprisonment
in lieu of fine
147 I.P.C. R.I. For 1 Nil Nil
year
307/149 I.P.C. R.I. For 3 1000/- R.I. for 3
year months
323/149 I.P.C. Nil 1000/- R.I. for 1
month.
3 Cr.A.No.210/2009
All substantive sentences were directed to run
concurrently.
1a. It may be noted in this regard that on the first information report lodged by appellant Sudarshan in police station Saleha Dist. Panna, in respect of the same incident, counter crime no. 60 of 2004 was registered against the victims Balaprasad, Maniklal and Rampal. Against their conviction in aforesaid case counter appeal no.369 of 2009 had been filed in the High Court, which is being disposed of today by a separate judgment.
2. The case of the prosecution before the trial Court was that the field called Bharwa har belonged to victims Manik Lal and Ram Pal and their father Bala Prasad. During the day time on 2.7.2004, accused Sudershan was getting the aforesaid field ploughed by Hubbi Lal's Tractor. First informant Manik Lal stopped Hubbi Lal from ploughing the field. Hubbi Lal agreed and left. At about 10:00 p.m. the same night, appellant/accused Sudershan was ploughing the same field by Ramasre's Tractor; whereon, Manik Lal, Rampal and their father Bala Prasad went to the field to stop him; whereon, accusesd Sudershan struck a blow with a stick on Manik Lal's head, resulting in bleeding. Accused Shiva struck a blow with a stick upon the head of Ram Pal. This injury also resulted in bleeding. Ram Pal fell down on the ground. Co-accused Rajendra @ Chhutku, Ramasre's younger son and Natthu's elder sons arrived with sticks. They also beat Ram Pal. As a result of aforesaid assault, victims Manik Ram and Ram Pal sustained injuries to their hands, legs and back. Ram Pal had become unconscious. Bala Prasad, 4 Cr.A.No.210/2009 Nirbhay and Uma Kachhi had witnessed the incident and interceded in the matter. The accused persons ran away presuming Ram Pal to be dead. They left behind their T.V.S. Suzki motorcycle. The report was lodged in Police Station Devendra Nagar the next morning.
3. The trial Court framed charges against all five accused persons under Sections 147 and 307 read with Section 149 of the I.P.C. The accused persons abjured the guilt and claimed to be tried. Under Section 313 of the Cr.P.C., accused persons Shiv Kumar and Sudershan stated that the land in question belonged to their sister Gulab Bai. They were ploughing the same at the behest of Gulab Bai and the complainant party had assaulted and beaten them. They had caused injuries to Sudershan and Shiv Kumar. They have been falsely implicated in the case and the victim sustained injuries due to fall of their motorcycle on tractor and stones. Accused Ajay Kumar, Rajendra @ Chhutku and Vinay Kumar stated that at the time of the incident, they were not present on the spot and they have been falsely implicated in the case.
4. The trial Court held that the prosecution had succeeded in proving beyond reasonable doubt that the accused persons had constituted an unlawful assembly. The common object of that assembly was to cause death of victims Ram Pal and Manik Ram. In prosecution of aforesaid common object, they had caused simple injuries to Manik Lal and grievous injury to Rampal. Injury caused to the head of victim Manik lal was sufficient in the ordinary course of nature to cause death.
5 Cr.A.No.210/2009Therefore, all accused persons were convicted of rioting and causing simple injuries to Manik Lal and attempt to commit murder of victim Ram Pal. They were convicted and sentence as herein above stated.
5. Learned counsel for the appellants submits that victims Manik Lal and Rampal have entered into a compromise with all the appellants. The application for compounding the offence (I.A.No.3566/2017) filed by victims Manik Lal and Ram Pal has been verified by the Registrar of the Court, who has recorded a finding that the victims have entered into a compromise with the appellants without any coercion, inducement or threat. In the light of aforesaid compromise, it has been urged that the trial Court erred in holding that the appellants were guilty of attempting to commit murder of victim Rampal. At worst, the appellants were guilty of offence punishable under Sections 147 and 323 of the I.P.C., which are compoundable. In support of aforesaid contention, learned counsel for the appellant has invited attention of the Court to the statement of Dr. P.C. Shrivastav (PW-4), who has stated that injury number one sustained by victim Rampal could be dangerous to life. As such, the medical witness himself was not sure whether the injury was life threatening or not; therefore, where two views are possible, the one favourable to the accused ought to be taken.
6. It may be noted in this regard that victim Rampal had sustained two injuries. Injury No.1 was on the head and injury number 2 was on the back. Thus, it is clear that he had sustained only one injury to a vital part of his body. Aforesaid injury was 6 Cr.A.No.210/2009 described by Dr. P.C. Shrivastva (PW-4) as bruise admeasuring 2.5"x1.5", elliptical on the right side on frontal region of the head, which was surrounded by swelling. Dr. Shrivastav had advised X-ray examination for the same. Dr. Shrivastav had also stated that the victim was unconscious and his pulse rate was 96 per minute. He had referred the patient to District Hospital, Panna.
7. Dr. S.G. Vinchurkar (PW-10) had stated that he had conducted X-ray examination of victim Rampal in District Hospital, Panna on 3.7.2004. He had found that the victim had sustained fracture of frontal bone, parietal bone and occipital bone.
8. Dr. V.K. Saxena (PW-13) stated that on 3.7.2004 he was Registrar in Neuro-surgery Department of Medical College, Gwalior. He had examined victim Rampal and had found that there was a bruise on the right hand side of the forehead of victim Rampal. In C.T. Scan internal injuries were found. He was admitted to Dr. S.N. Iyangar's Units. D. Iyangar and Dr. Manish had conducted the operation of the Rampal's. They had performed left frontal trephyne craniyotomy with evacuation of contused brain meaning thereby that frontal side of his cranium was opened and the injured portion of the brain was extracted. The injury was life threatening.
9. In aforesaid circumstances, it is clear that even if it is not recorded in the medical reports in explicit terms that the injury was sufficient in the ordinary course of nature to cause death, it belonged to aforesaid category. The Supreme Court has 7 Cr.A.No.210/2009 observed in the case of Brij Bhukhan and others Vs. State of Uttar Pradesh, AIR 1957 SC 474 that even where medical evidence does not state that anyone of the injuries on the body of the deceased was sufficient to cause death in the ordinary course of nature, it is open to the Court to look at the nature of the injuries found on the body of the deceased and infer from them that the assailant intended to cause death of the deceased.
10. We have already seen that the doctors have opined that the injury was life-threatening. Simply because at one of the places doctor has stated that injury "could have been" life threatening, does not means that it was not life threatening. The victim had sustained three fractures in the head. He had suffered internal injuries to his brain, for which the operation had to be performed to extract injured part of the brain. In these circumstances, it may clearly be inferred that injury number one sustained by victim Rampal was sufficient in the ordinary course of nature to cause death.
11. The Supreme Court has held in the case of Virsa Singh Vs. State of Punjab AIR 1958 S.C. 465 that:
" 8. It was argued with much circumlocution that the facts set out above do not disclose an offence of murder because the prosecution has not proved that there was an intention to inflict a bodily injury that was sufficient to cause death in the ordinary course of nature. Section 300 "thirdly" was quoted :
"If it is done with the intention of causing bodily injury to any person and the bodily injury to any person and the bodily injury intended to be inflicted is suffi- cient in the ordinary course of nature to cause death."
It was said that the intention that the section requires must be related, not only to the bodily injury inflicted, but also to the clause, "and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
9. This is a favourite argument in this kind of case but is fallacious. If there is an intention to inflict an injury that is sufficient to cause death in the ordinary 8 Cr.A.No.210/2009 course of nature, then the intention is to kill and in that event, the "thirdly" would be unnecessary because the act would fall under the first part of the section, namely -
"If the act by which the death is caused is done with the intention of causing death."
In our opinion, the two clauses are disjunctive and separate. The first is sub- jective to the offender :
"If it is done with the intention of causing bodily injury to any person. It must, of course, first be found that bodily injury was caused and the nature of the injury must be established, that is to say, whether the injury is on the leg or the arm or the stomach, how deep it penetrated, whether any vital organs were cut and so forth. These are purely objective facts and leave no room for inference or deduction: to that extent the enquiry is objective; but when it comes to the ques- tion of intention, that is subjective to the offender and it must be proved that he had an intention to cause the bodily injury that is found to be present.
10. Once that is found, the enquiry shifts to the next clause :-
"and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death."
The first part of this is descriptive of the earlier part of the section, namely, the infliction of bodily injury with the intention to inflict it that is to say, if the circum- stances justify an inference that a man's intention was only to inflict a blow on the lower part of the leg, or some lesser blow, and it can be shown that the blow landed in the region of the heart by accident, then, though an injury to the heart by accident, then, though an injury to the heart is shown to be present, the intention to inflict an injury in that region, or of that nature, is not proved. In that case, the first part of the clause does not come into play. But once it is proved that there was an intention to inflict the injury that is found to be present, then the earlier part of the clause we are now examining -
"and the bodily injury intended to be inflicted"
is merely descriptive. All the means is that it is not enough to prove that the in- jury found to be present is sufficient to cause death in the ordinary course of na- ture; it must in addition be shown that the injury is of the kind that falls within the earlier clause, namely, that the injury found to be present was the injury that was intended to be inflicted. Whether it was sufficient to cause death in the ordinary course of nature is a matter of inference of deduction from the proved facts about the nature of the injury and has nothing to do with the question of intention.
11. In considering whether the intention was to inflict the injury found to have been inflicted, the enquiry necessarily proceeds on broad lines as, for example, whether there was an intention to strike at a vital or a dangerous spot, and whether with sufficient force to cause the kind of injury found to have been in- flicted. It is, of course, not necessary to enquire into every last detail as, for in- stance, whether the prisoner intended to have the bowels fall out, or whether he intended to penetrate the liver or the kidneys or the heart. Otherwise, a man who has no knowledge of anatomy could never be convicted, for, if he does not know that there is a heart or a kidney or bowels, he cannot be said to have intended to injure them. Of course, that is not the kind of enquiry. It is broad-based and simple 9 Cr.A.No.210/2009 and based on commonsense: the kind of enquiry that "twelve good men and true"
could readily appreciate and understand.
12. To put it shortly, the prosecution must prove the following facts before it can bring a case under S. 300 "thirdly";
First, it must establish, quite objectively, that a bodily injury is present; Secondly, the nature of the injury must be proved; These are purely objective investigations.
Thirdly, it must be proved that there was an intention to inflict that particular bodily injury, that is to say, that it was not accidental or unintentional or that some other kind of injury was intended.
Once these three elements are proved to be present, the enquiry proceeds fur- ther and, Fourthly, it must be proved that the injury of the type just described made up of the three elements set out above is sufficient to cause death in the ordinary course of nature. This part of the enquiry is purely objective and inferential and has noth- ing to do with the intention of the offender.
13. Once these four elements are established by the prosecution (and, of course, the burden is on the prosecution throughout) the offence is murder under S. 300 "thirdly". It does not matter that there was no intention to cause death. It does not matter that there was no intention to cause death. It does not matter that there was no intention even to cause an injury of a kind that is sufficient to cause death in the ordinary course of nature (not that there is any real distinction be- tween the two). It does not even matter that there is no knowledge that an act of that kind will be likely to cause death. Once the intention to cause the bodily in- jury actually found to be present is proved, the rest of the enquiry is purely objec- tive and the only question is whether, as a matter of purely objective inference, the injury is sufficient in the ordinary course of nature to cause death. No one has a li- cence to run around inflicting injuries that are sufficient to cause death in the or- dinary course of nature and claim that they are not guilty of murder. If they inflict injuries of that kind, they must face the consequences; and they can only escape if it can be shown, or reasonably deduced, that the injury was accidental or other- wise unintentional."
12. In view of aforesaid authoritative pronouncement of the Supreme Court, as reproduce above, it is clear that where the intention of the appellant was to cause such bodily injury or injuries as is/are sufficient in the ordinary course of nature to cause death, the act would fall within the purview of "thirdly" of Section 300 of the I.P.C. defining murder. Regardless of the fact as to whether or not he intended to cause death of the 10 Cr.A.No.210/2009 deceased. Where the act has not resulted in the death of the victim, the act would fall within the ambit of attempt to commit murder.
13. In aforesaid view of the matter, the argument advanced on behalf of the appellant that the act of the appellants would not be punishable under Section 307 but would be punishable under Section 323 of the I.P.C., is not sustainable in the eyes of law.
14. The second argument that has been advanced is that the land on which the incident occurred belonged to Gulab Bai, sister of the appellants and they were ploughing the land at her behest. The victims came and stopped them from ploughing the fields. They also caused injuries to appellants Sudershan and Shiv Kumar which had been proved during the trial. Thus, the right of private defence of person as well as property was available to the appellants and they had caused injuries to the victims in exercise of their right of private defence.
15. Aforesaid aspect of the matter has been considered by the trial Court elaborately in paragraph Nos. 21, 22, 23 and 24 of the impugned judgment.
16. Victim Manik Lal and Rampal have stated that the field in which the incident occurred is owned by them and is in their possession; whereas, the appellants and defence witnesses have stated that aforesaid field belonged to Gulab Bai. In paragraph No.12 of his deposition Investigating Officer R.B. Tiwari (PW-
11) has stated that he had not definitely ascertained as to who was the owner of the field and who was in its possession; however, during the investigation, it was learnt that the land 11 Cr.A.No.210/2009 belonged to State of M.P. He has stated that neither Manik Lal nor Gulab Bai was in possession of the land. In the Site Plan (Ex.P-20) there is no mention of the survey number of the victim. Ram Pal (PW-7) has stated that the land which was being ploughed by the appellant comprised in survey No.1093, 1097 and 1098. These witnesses have stated that survey No.1098 was in his possession of Rampal and survey No.1093 and 1097 were in possession of his brother Manik Lal; however, the prosecution has failed to file any revenue papers to prove the possession of the victims on aforesaid land. Prosecution witnesses Raja Bhaiya (PW-1), Uma Prasad (PW-2) and Nirbha Singh(PW-8) have supported the prosecution and have stated that the land was in possession of Manik lal and Rampal; whereas, defence witnesses Manoj Kumar (DW-1), (DW-2) Daddu and Sudershan (DW-3) have stated that Gulab Bai is in possession of survey No.1097, 1098 and 1099; however, the defence has also not filed any revenue papers to prove the possession of their sister on the disputed land. The appellant have admitted that the land in dispute was received by their sister on lease. Thus, it is clear that the real owner of the land is State of M.P. and there is a dispute between the appellants on one hand and victims on the other regarding possession of aforesaid land resulting in the this quarrel. It is also proved that the appellants had gone to the field to plough it and the victims had gone there to stop the appellants from ploughing the fields. Both the parties have alleged that the other had caused injuries to them. Since, it is not proved that the appellants were in 12 Cr.A.No.210/2009 settled position of the land, it cannot be said that they had right of self defence of the property. In any case, the appellants were five in number and the victims only two. Thus, it cannot be said that they were aggressors. Thus, the right of private defence of the person was also not available to the appellants. Moreover, as per the prosecution story, Sudershan had gone to the field to plough it during the day time and when he was stopped by the first informant, he relented but he went again at night accompanied by other appellants to plough the field, which negates the theory that the victims were in fact aggressors. It is true that two of the appellants namely Sudershan and Shiv Kumar sustained simple injuries in the incident. These injuries are much less significant and then those sustained by the victims. Thus, regardless of the fact that a counter case has been registered in the matter and two of the appellants have also sustained injuries, it cannot be said that the victims were in fact aggressors and they had sustained injuries in the exercise of right of private defence by the appellants.
17. Thus, the arguments advanced by the learned counsel for the appellants are not acceptable. The appellants have rightly been held to be guilty of committing offences punishable under Sections 147 and 307 read with Section 149 and 323 read with Section 149 of the I.P.C.
18. Now, the Court shall consider the effect of compromise on the situation. It has been held by Supreme Court in the case of Narendera Singh Vs. State of Punjab 2014 AIR SCW 2065 that:
13 Cr.A.No.210/200929.6. Offences under Section 307 IPC would fall in the category of heinous and serious offences and therefore are to be generally treated as crime against the society and not against the individual alone. However, the High Court would not rest its decision merely because there is a mention of Section 307 IPC in the FIR or the charge is framed under this provision. It would be open to the High Court to examine as to whether incorporation of Section 307 IPC is there for the sake of it or the prosecution has collected sufficient evidence, which if proved, would lead to proving the charge under Section 307 IPC. For this purpose, it would be open to the High Court to go by the nature of injury sustained, whether such injury is inflicted on the vital/delecate parts of the body, nature of weapons used, etc. Medical report in respect of injuries suffered by the victim can generally be the guiding factor. On the basis of this prima facie analysis, the High Court can examine as to whether there is a strong possibility of conviction or the chances of conviction are remote and bleak. In the former case it can refuse to accept the settlement and quash the criminal proceedings whereas in the latter case it would be permissible for the High Court to accept the plea compounding the offence based on complete settlement between the parties. At this stage, the Court can also be swayed by the fact that the settlement between the parties is going to result in harmony between them which may improve their future relationship. 29.7. While deciding whether to exercise its power under Section 482 of the Code or not, timings of settlement play a crucial role. Those cases where the settlement is arrived at immediately after the alleged commission of offence and the matter is still under investigation, the High Court may be liberal in accepting the settlement to quash the criminal proceedings/investigation. It is because of the reason that at this stage the investigation is still on and even the charge-sheet has not been filed.
Likewise, those cases where the charge is framed but the evidence is yet to start or the evidence is still at infancy stage, the High Court can show benevolence in exercising its powers favourably, but after prima facie assessment of the circumstances/material mentioned above. On the other hand, where the prosecution evidence is almost complete or after the conclusion of the evidence the matter is at the stage of argument, normally the High Court should refrain from exercising its power under Section 482 of the Code, as in such cases the trial court would be in a position to decide the case finally on merits and to come to a conclusion as to whether the offence under Section 307 IPC is committed or not. Similarly, in those cases where the conviction is already recorded by the trial court and the matter is at the appellate stage before the High Court, mere compromise between the parties would not be a ground to accept the same resulting in acquittal of the offender who has already been convicted by the trial court. Here charge is proved under Section 307 IPC and conviction is already recorded of a heinous crime and, therefore, there is no question of sparing a convict found guilty of such a crime.
19. It has been held by the Supreme Court in the case of Manohar Singh Vs. State of M.P. and another AIR 2014 SC 3649 that even though the appellant and the respondent have 14 Cr.A.No.210/2009 arrived at a compromise, the order of conviction cannot be quashed on that ground because the offences involved are not compoundable; however, in such a situation, if the Court feels that the parties have real desire to bury the hatchet, in the interest of peace, it can reduce the sentence of the accused to the sentence already undergone.
20. Likewise, in the cases of Hassi Mohan Vs. State of Assam (2008) 1 SCC 184 it has been held that an accused persons cannot be acquitted on the basis of compromise recorded in a non-compoundable case; however, the factum of compromise may be taken into consideration at the time of passing of the sentence.
21. In the present case conviction under Section 307 of the I.P.C. has been held to be rightly recorded. The appellants were released on anticipatory bail; therefore, they had not undergone any sentence. The incident is about 13 years old; therefore, it would be appropriate to reduce the sentence imposed under Section 147 of the I.P.C. from R.I. for one year to R.I. for six months and under Section 307 read with section 149 from R.I. for three years to R.I. for six months. Remaining part of the sentence may be affirmed. The substantive sentence of R.I. imposed upon the appellants may run concurrently.
22. Consequently, the appeal is partly allowed. Conviction of the appellants under sections 147 and 307 read with 149 and 323 read with 149 is affirmed.
23. The sentence of each of the appellants under section 147 is reduced from R.I. for one year to R.I. for six months and under 15 Cr.A.No.210/2009 Section 307 read with section 149 from R.I. for three years to R.I. for six months. Remaining part of the sentence is be affirmed. The substantive sentence of R.I. imposed upon the appellants shall run concurrently.
24. The appellants shall surrender before the trial Court on 03.01.2018 to undergo the sentence imposed upon them.
(C.V. Sirpurkar) Judge ahd Digitally signed by MOHD AHMAD Date: 2017.11.16 21:15:03 -08'00' IN THE HIGH COURT OF MADHYA PRADESH PRINCIPAL SEAT AT JABALPUR Cr. A. No.210/2009 Sudarshan Singh and others Vs. The State of M.P. ORDER Post for : 15.11.2017 (C.V.Sirpurkar) Judge