Madhya Pradesh High Court
Hari @ Hari Pd. @ Chhoottu & Ors. vs The State Of M.P. on 21 November, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:57036
1 CRA-118-1997
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 21st OF NOVEMBER, 2024
CRIMINAL APPEAL No. 118 of 1997
HARI @ HARI PD. @ CHHOOTTU AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Shreyash Pandit - Advocate for the appellants.
Shri Manas Mani Verma - Public Prosecutor for the State.
ORDER
Per: Justice Vivek Agarwal This appeal is filed being aggrieved of the judgment dated 19.12.1996 passed by learned first ASJ, Mudwara, Katni in Case No.417/1991 whereby the trial Court convicted the appellants under Sections 302/149 IPC for causing homicidal death of Gilsa Bai. The appellants are also convicted under Section 324/149 of the IPC for causing injuries to Chhuttan (PW-4) and also under Section 323/149 for causing injuries to PW-6 (Gyani) and have also been convicted under Section 148 of the IPC and sentenced to undergo RI for two years.
2. It has come on record that during trial one of the accused person, namely, Vishram died during trial and in the year 2007 during the pendency of the appeal Hari @ Hari Prasad @ Chhuttu S/o Vishram died. Thus appeal Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 11/21/2024 7:36:44 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:57036 2 CRA-118-1997 qua Hari stands abated. This appeal is being considered for remaining appellants Kamla @ Jagdish S/o Bisram Patel, Sukhdev Prasad Patel S/o Ramvishal Patel, Vimla @ Vimal Kumar S/o Ghasiram Patel and Mithla @ Mithal Kumar S/o Bhasiram Patel.
3. Shri Shreyash Pandit submits that the appellants are innocent. Provisions of Section 149 are not attracted. It is submitted that the victim Chhutan is dreadly criminal and prior to the incident which took place on 19.04.1991 at about 12:00 noon, they had lodged a report which was registered as Roznamcha Ex. D-6 on 18.04.1991 informing that they were threatened and abused by Chhutan, Babulal Lodhi and Kaluram Lodhi all residents of village - Balkhedi.
4. It is submitted that the incident took place in front of the house of the appellants as can be seen from the spot map EX. P-25, therefore, it cannot be said that the appellants were assailants or aggressor therefore, the provisions of Section 149 of the IPC are not attracted.
5. Reading the evidence of PW-6, it is submitted that PW-6 Gyani has categorically admitted in cross-examination that he saw his wife being beaten by Chhuttu and he had not seen anybody else beating her. He saw Mithla and Vimala were armed with lathi. Thereafter he stated that he had not seen Kamala beating the deceased with handle of an axe. Then he said that Vishram had caused injury to him with a lathi and thus, reading from the statement of PW-6, it is pointed out that there are several contradictions in evidence of PW-6. Similarly PW-5 is a chance witness and he is friend of PW-4 therefore firstly his presence is doubtful and secondly his narration is Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 11/21/2024 7:36:44 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:57036 3 CRA-118-1997 not sufficient for implicating all the accused persons.
6. Reading from evidence of PW-4, it is submitted that though he is an injured witness yet there are contradictions which create doubt to his version. Therefore, the appellants are liable to be acquitted from the charge under Section 302/149 of the IPC especially when single lathi blow was given on the head of Gilsa Bai which resulted in her death as certified by Dr. K.K. Jain (PW-9) who has deposed that body of 52 years old lady was brought for postmortem. There was a stitch wound on the right parietal region measuring 2 1/2 x 5 inches. There was a blood clot on the wound. On further exploration, fracture was found on right parietal bone. On the opening of the skull, near the mid line of the head, there 1 1/2 inch blood clotting was available on parietal and temporal region with some liquid blood. The cause of death was comma on account of head injuries.
7. It is thus submitted that there was only a single injury caused to the head of the deceased and she died after seven days of the incident on 26.04.1991, therefore, for a single injury and that too when intention even if gathered against the accused to cause homicidal death of Chhutan and not of Gilsa Bai who was a chance intervener, the case is liable to be converted from 302 to 304 part II of the IPC.
8. Shri Manas Mani Verma, learned Public Prosecutor in his turn submits that PW-7 (Radha Bai) is the eye witness. Her testimony is unrebutted and she has narrated the case in the same terms as is mentioned in the FIR Ex. P-33 which was lodged on the basis of report Exhibit P-4 which was registered at zero. He further submits that none of the witnesses could be Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 11/21/2024 7:36:44 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:57036 4 CRA-118-1997 contradicted as to availability of all the six accused persons at the time of the incident. They were armed with deadly weapons which too is not contradicted. Therefore, mere presence of the witnesses coupled with the fact that they could make a common object in view of previous day incident as narrated in Exhibit D-6 is proof of common object, formation of unlawful assembly in furtherance of their common object, therefore, no indulgence is called for in the impugned judgment.
9. After hearing learned counsel for the parties and going through the record, it is evident that PW 4 (Chhuttan) is an injured witness. He is also author of report Exhibit P-4 on the basis of which Exhibit P-33 was recorded in the police station. PW-4 has given narration of injuries which were caused to him and they have been verified and supported by PW-17 (Dr. Pramod Singh) who had conducted MLC on Chhuttan, found that there was an incised wound on rear part of right shoulder measuring 4 inch x 1 inch x muscle deep. It was freshly bleeding. There was another incised wound on Ulna bone of right hand measuring 1 1/2 inch x 1/2 inch x skin deep. There was another contusion on the right hand side of the back measuring 08 inch x 1 inch in oblique form. There was another lacerated wound on the back on the right hand side towards the 10th Rib measuring 2 inch x 1 inch x muscle deep. His report is Exhibit P-31. The injuries found on the body of Chhuttan (PW-4) are corroborated by Dr. PW-17. Similarly PW-17 corroborated the injuries of Gilsa Bai and found that at the time of investigation her pulse was 80 per minute, Blood Pressure 136/90. She was semiconscious. There was a lacerated wound on the right of centripetal measuring 5 x 2 x bone deep. On Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 11/21/2024 7:36:44 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:57036 5 CRA-118-1997 account of suspicion of fracture, X ray was advised. There was an injury of abrasion on left shoulder measuring 2 cm x 2 cm there was another abrasion on the right shoulder 2x2 cm and all the injuries were caused by hard and blunt object. The report is exhibited as Ex.P-32.
10. This doctor has also conducted MLC on PW-6 (Gyani) and found that he was complaining pain on the left calf muscle and left thigh but there was no visible sign of external injuries. He was also complaining pain in the left wrist and front portion of left hand and expressed trouble in moving his left hand. He was suggested to undergo X ray. His report is exhibit P-33.
11. Injuries as narrated by PW-4 to have been caused to himself, Gyani (PW-6) and deceased Gilsa Bai are corroborated by PW-17 Dr. Pramod Singh. Injuries of the deceased are also corroborated by doctor PW-9 Dr. Jain who conducted postmortem.
12. On a careful perusal of spot map Exhibit P-25, it is evident that if Chhuttan has to approach his house from the bus stand side, on his way, on the right hand side, there is house of Vishram and on the left hand side it is his house (i.e. of Chhuttan). As per the prosecution case all the accused persons had surrounded Chhutan while he was reaching his home from the bus stand. Thereafter when he was beaten he cried for help then his mother Gilsa Bai, his father Gyani, daughter-in-law Radha Bai (PW-7) came out and Jai Prakash PW-5 who happened to pass through witnessed the incident. It is true that there are certain minor contradictions in the testimony in PW-5 and PW-6 in regard to who had used which weapon and who had assaulted to which of the victims. But there is no contradiction with regard to presence Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 11/21/2024 7:36:44 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:57036 6 CRA-118-1997 of all the six assailants at the place of the incident. It is also true that the narration given by injured witness Chhuttan (PW-4) has remained largely unrebutted.
13. The Supreme Court in the cases of K.C. Mathew and Others v. State of Travancore - Cochin, AIR 1956 SC 241, Mizaji v. of UP, AIR 1959 SC 572 and Sheo Mahadeo Singh v. State of Bihar, 1970 (3) SCC 46 has held that even if the offence is committed, is not in prosecution of common object of the assembly, it may fall under Section 149 of the IPC, if it is found that members knew that it is likely to be committed.
14. In the case of Mizaji (supra) it is held that the first part of Section 149 IPC means that the offence committed in prosecution of the common object must be one which is committed with a view to accomplish the common object. It is not necessary that there should be a preconcert in the sense of a meeting of the members of the unlawful assembly as to the common object, it is enough if it is adopted by all the members and is shared by all of them. In order that the case may fall under the first part, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. Even if the offence committed is not in direct prosecution of the common object of the assembly, it may yet fall under section 149 if it can be held that the offence was such as the members knew was likely to be committed. The expression 'know' does not mean a mere possibility, such as might or might not happen. Though it can be said that when an offence is committed in prosecution of the common object, it would generally be an offence which the members of the unlawful Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 11/21/2024 7:36:44 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:57036 7 CRA-118-1997 assembly knew was likely to be committed in prosecution of the common object that does not make the converse proposition true; there may be cases which would come within the second part, but not with the first. the distinction between the two part of section 149 IPC cannot be ignored or obliterated. In every case it would be an issue to be determined whether the offence committed falls within the first part of S. 149 IPC. When people go armed with lethal weapons to take possession of land which is in possession of others, they must have the knowledge that there would be opposition and the extent to which they were prepared to go to accomplish their common object would depend on their conduct as a whole.
15. In the case of Sheo Mahadev (supra), in paragraph 9 the Supreme Court has held that "Section 149 creates a specific offence and deals with the punishment of that offence. There is an assembly of five or more persons having a common object and the doing of acts by members is in prosecution of that object. The emphasis is on common object. There is no question of common intention in Section 149. The act must be one which upon the evidence appears to have been done with a view to accomplishing the common object attributed to the members of the unlawful assembly. Thus every person who is engaged in prosecuting the same object, although he had no intention to commit the offence, will be guilty of an offence which fulfils or tends to fulfil the object which he is himself engaged in prosecuting in the circumstances mentioned in the section. It is in this sense that common object is to be understood."
16. Thus, when we examine the present case in the light of aforesaid Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 11/21/2024 7:36:44 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:57036 8 CRA-118-1997 decisions of the Supreme Court, then we have no hesitation to hold that the act of the present appellants will fall under second part of section 149 of the IPC. Therefore, the first limb of arguments advanced by Shri Shreyash Pandit that there was no unlawful assembly, needs to be repelled and therefore, we refuse to accept that there was no unlawful assembly or that assembly was not having any common object.
17. As far as death of Gilsa Bai is concerned, both PW-9 and PW-17 have stated that there was a single injury caused to her head. It is immaterial as to who caused that single injury once we have held that unlawful assembly was present with a common object. However, looking to the fact that it was a single injury and Girsa Bai died after seven days of the incident, then third part of Section 299 of the IPC comes into play which provides that whoever causes death by doing an act with the knowledge that he is likely by such act to cause death, commits the offence of culpable homicide.
18. Therefore, since the members of the unlawful assembly had the knowledge that by their act death is likely to be caused, offence will fall under Part II of Section 304 of the IPC. Therefore, we convert conviction of the appellants from Section 302/149 of the IPC to one under Section 304 Part 2 read with Section 149 of the IPC. Other conviction and sentences imposed by the trial Court are maintained as such. As far as sentence for conviction under Section 304-II/149 of the IPC is concerned, in view of judgment of Supreme Court in Shaji v. The State of Kerala, (Criminal Appeal No.2293 of 2023 decided on 07.08.2023), we are of the opinion that looking to the long pendency of the appeal, with a view to meet the interest of justice, appellants Signature Not Verified Signed by: KOUSHALENDRA SHARAN SHUKLA Signing time: 11/21/2024 7:36:44 PM NEUTRAL CITATION NO. 2024:MPHC-JBP:57036 9 CRA-118-1997 are sentenced to undergo RI for Five Years, each with fine of Rs.5,000/- (Rupees Five Thousand only) each with stipulation that in default of payment of fine, they shall further undergo RI for six months, All the sentences to run concurrently.
As per the custody report produced by learned Public Prosecutor, the appellants have already undergone their sentences as under:
Kamala @ Jagdish - 6 years 2 months 17 days;
Hari @ Hariprasad @ Chhuttu - 3 years and 5 days;
Vimla @ Vimalkumar - 3 years 5 months 13 days;
Mithla @ Mithal Kumar - 3 years and 12 days;
Sukhdev Prasad - 3 years and 12 days.
Accordingly, we direct that all the appellants, except the appellant - Kamla @ Jagdish, who has already served more than 5 years jail sentence, be taken into custody to undergo remaining jail sentence as has been imposed hereinabove. The period of jail sentences already undergone by the appellants shall be set off in this period of sentence of five years.
19. With the aforesaid modification in conviction and sentence part of the judgment, this appeal is allowed in part. The case property be disposed off in terms of the order of the trial Court. Record of the trial Court be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
ks
Signature Not Verified
Signed by: KOUSHALENDRA
SHARAN SHUKLA
Signing time: 11/21/2024
7:36:44 PM