Madhya Pradesh High Court
State Of M.P. vs Moti And Others on 16 January, 2017
1 Cr.A.No.200/1999
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
DIVISION BENCH
CRIMINAL APPEAL NO.200/1999
State of Madhya Pradesh
Versus
Moti and others
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Shri J.M. Sahani, learned Panel Lawyer for the State/appellant
assisted by Shri A.K. Jain, learned counsel for the
complainant.
Shri S.K. Tiwari, learned counsel for the respondents.
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Present : Hon. Mr. Justice N.K. Gupta
Hon. Mr. Justice Anand Pathak
JUDGMENT
(17-01-2017) Per Justice N.K. Gupta, The State has preferred the present appeal being aggrieved with the judgment dated 01-09-1998 passed by the Additional Sessions Judge, Sheopurkalan in S.T.No.237/1996 whereby each of the respondent has been acquitted of the charges under Sections 147, 302 read with Section 149, 323 read with Section 149 of IPC.
2- Brief facts of the case in short are that on 20-06- 1996 at about 8 am in the morning the complainant Premchand (PW-1) along with his uncle deceased Gajanand went to the field situated at village Baroda District Morena to plough the field with the help of tractor which was being driven by Jugraj (PW-3). The respondents surrounded the deceased Gajanand and the complainant Premchand (PW-1). There was dispute relating to that field and injunction order Ex-P/29 was available in favour of the deceased Gajanand. Initially, the respondents assaulted the complainant 2 Cr.A.No.200/1999 Premchand with stick and thereafter they turned over to the deceased Gajanand. They had brutally beaten the deceased Gajanand with stick. The tractor driver Jugraj (PW-3) was also beaten with stick. The incident was seen by one Syed Mohammad (PW-4). The complainant Premchand (PW-1) took the injured Gajanand to the Police Station, Badoda where Premchand (PW-1) had lodged the FIR Ex-P/1. The injured were sent for their medico legal examination. Dr. G.C. Shrivastava (PW-2) examined the victim Jugraj (PW-3) and gave the report Ex-P/3. He found one lacerated wound at left side of his head and swelling at left arm and left foot. Dr. G.C. Shrivastava has also examined the deceased Gajanand and gave the report Ex-P/5. According to him, the deceased Gajanand sustained eight injuries which were caused at right leg, left leg, left elbow, left finger, right back, right side of the back and right shoulder. According to Dr. G.C. Shrivastava the injury of left elbow could be grievous in nature and remaining injuries were simple in nature. However, he referred the deceased Gajanand for x-ray examination. Dr. G.C. Shrivastava also examined the complainant Premchand (PW-1) and gave report Ex-P/7. He found four blunt injuries to the complainant Premchand, out of them one was at left side of face near eye and second was at left hand in palm, third was at right side of the head and fourth was at left arm. All the injuries were simple in nature .
3- Dr. R.K. Mishra (PW-5) examined the deceased Gajanand radiologically and gave report Ex-P/5. According to him a fracture of left ulna bone was found to the deceased Gajanand, however, the deceased Gajanand succumbed to the injuries and his postmortem was done by Dr.R.K. Mishra (PW-5) on 21-06-1996, who gave a report Ex-P/10. In the postmortem he found six injuries to the deceased out of them three injuries were on the left side of the chest whereas one injury was at left elbow, one lacerated wound at right leg and lacerated wound was on mid of the chest. On 3 Cr.A.No.200/1999 opening of body 8th, 9th and 10th ribs of the left side of deceased Gajanand were found fractured, below such injuries spleen of the deceased was torn. Huge blood was found in the abdominal cavity. According to Dr. R.K. Mishra deceased died due to the aforesaid injuries added with the tearing of spleen. The death was homicidal in nature. Thereafter, the Investigating Officer arrested the various respondents and one stick was recovered from each of the respondents. After due investigation, the charge sheet was filed before the Judicial Magistrate First Class, Sheopurkalan who committed the case to the Court of Sessions and ultimately, it was transferred to the Additional Sessions Judge, Sheopurkalan. 4- Respondents abjured their guilt and they took the specific plea that they were in possession of the land and the deceased Gajanand was ploughing the land without any authority. However, there was dispute relating to property between the parties, therefore, they were falsely implicated in the matter. In defence, Nandkishore (DW-1), Narsingha (DW-2) and Naib Tahsildar M.S. Quereshi (DW-3) were examined.
5- The trial Court after considering the evidence adduced by the parties acquitted all the respondents from all the aforesaid charges.
6- During pendency of appeal, the respondent
-Heera had expired and therefore, his name was deleted from the cause title.
7- We have heard learned counsel for the parties at length.
8- In the present case, the trial Court has perversely appreciated the evidence and without any reason conclusions were drawn relating to contradictions between the statements of various eye-witnesses and between their evidence and medical reports. In the present case, the complainant Premchand (PW-1), Jugraj (PW-3) and Syed Mohammad (PW-4) were mainly examined as eye-witnesses. Syed 4 Cr.A.No.200/1999 Mohammad (PW-4) is not the interested witness as no interest could be established by the prosecution to show that this witness has not stated truth before the Court. The statement of this witness has been duly corroborated by the timely lodged FIR and medical evidence. Initially, Dr. G.C. Shrivastava (PW-2) examined various injured persons including the deceased Gajanand and he gave the report Ex- P/3, Ex-P/5 and Ex-P/7 for the injured Jugraj (PW-3), deceased Gajanand and the complainant Premchand (PW-1). Jugraj (PW-3) sustained three injuries those were simple in the nature whereas the complainant Premchand (PW-1) sustained four injuries those were also simple in nature. According to Dr. G.C. Shrivastava (PW-2) deceased Gajanand sustained eight injuries which are as under:
i- abrasion 2x3/4 cm., 6 cm. below to the right patella ii- lacerated wound 2-1/2x1/3x1/5 cm., 8 cm. below to the right patella Bct iii- abrasion 6x1cm., 10 cm. below to the left patella iv- swelling with ? fracture 18x7 cm. left elbow joint v- abrasion 1/3x1/4 cm. rankle of left small finger vi- abrasion 2x1/6 cm. below to the lower end of right scapula vii- abrasion 3x1/4cm. below to lower end of right scapula viii- swelling 16x1/7 left scapula. 9- On 21-06-1996, Gajanand expired and Dr. R.K. Mishra (PW-5) performed postmortem of his body and gave the report Ex-P/10. He found six injuries to the deceased Gajanand which are as under:
i- bruise 9x2-1/2cm. obliquely placed over left side of chest extending upto lateral side at the level of nipple.
ii- bruise 6x2 cm. over the left side of chest at the level of 6th and 7th ribs iii- bruise 11x3 cm. over the left side chest extending upto lateral side at the level of 8th 9th and 10th ribs. iv- bruise 6x3cm. over of post of aspect of left elbow. v- lacerated wound 2x1/2x1/2cm. over the in front and middle of right leg.
vi- bruise 4x3cm. in front of chest in the middle of sternum.5 Cr.A.No.200/1999
On opening of body it was found that 8 th, 9th, 10th ribs of the left side of the deceased were found broken and his spleen was found ruptured and due to that rupture abdominal cavity was found full of blood and rupture of spleen was the cause of death of Gajanand. According to Dr. R.K. Mishra, the death of deceased was homicidal in nature. Hence, it was proved beyond doubt that the deceased Gajanand died due to the injuries caused to him.
10- The trial Court has found that there was lot of difference regarding injuries found on the body of the deceased Gajanand in MLC report Ex-P/5 and postmortem report Ex-P/10 proved by Dr. R.K. Mishra (PW-5). It appears that after the incident the deceased Gajanand fell down at ground and he was taken to the Police Station by the complainant Premchand (PW-1). The FIR lodged by the complainant Premchand (PW-1) indicates that the deceased Gajanand was not in a position to inform about the incident. Similarly, it was not mentioned by Dr. G.C. Shrivastava (PW-2) that the deceased Gajanand was conscious at the time of recording of MLC. When patient was not conscious then it was not possible for the doctor to know about all the injuries which were covered by clothes and he can mark only the visible injuries found on the body of deceased but when the postmortem is performed, the doctor has every opportunity to see all the injuries found on the body of the deceased and if no injury was found on the chest of the deceased by Dr. G.C. Shrivastava (PW-2) then it makes no difference. If Dr. G.C. Shrivastava would have examined chest of the deceased Gajanand then he would have referred the deceased Gajanand for x-ray examination but he had referred only for x-ray of elbow. Dr. R.K. Mishra (PW-5) in his report Ex-P/5 found that there was a fracture of left ulna bone on the elbow of deceased Gajanand hence if Dr. Mishra found injuries on the chest of the deceased then his view cannot be discarded 6 Cr.A.No.200/1999 only because Dr. G.C. Shrivastava (PW-2) did not find such injuries on the deceased. The trial Court has committed an error in disbelieving the postmortem report given by Dr. R.K. Mishra (PW-5). Hence, the postmortem report Ex-P/10 as given by Dr. R.K. Mishra is found by this Court to be more authentic and the matter should be decided on the basis of that postmortem report.
11- Various eye-witnesses like Premchand (PW-1), Jugraj (PW-3) and Syed Mohammad (PW-4) have stated that the respondents except Ramprasad assaulted the deceased Gajanand whereas in FIR Ex-P/1 it was mentioned that the respondent -Ramprasad had also participated in crime, however, the FIR Ex-P/1 is not a substantial piece of evidence but it is a piece of corroborative evidence and therefore, when the eye-witnesses of the incident do not state about the overt act of the respondent Ramprasad then he cannot be convicted for any of the offence and it cannot be presumed that he participated in the crime. Therefore, the respondent Ramprasad was not the member of unlawful assembly so that the complainant Premchand (PW-1), Jugraj (PW-3) sustained injuries and the deceased Gajanand has died. In such circumstances, the trial Court had rightly acquitted the respondent Ramprasad in the matter.
12- However, the complainant Premchand (PW-1), witnesses namely, Jugraj (PW-3) and Syed Mohammad (PW-4) have stated about the overt act of respondents, Hajari, Ramesh, Satyanarayan and Heera but there is not a single allegation against the respondent -Moti that he assaulted the deceased Gajanand and particular injury was caused by him, thus, possibility cannot be ruled out to add at least five persons in order to constitute unlawful assembly, the name of respondent -Moti might have been included in the case. After consideration of evidence given by these three eye-witnesses, it cannot be said positively that the respondent
-Moti had assaulted the deceased Gajanand once or 7 Cr.A.No.200/1999 participated in crime, therefore, the trial Court has rightly acquitted the respondent Moti from all the charges appended against him.
13- The eye-witnesses, namely, Premchand (PW-1), Jugraj (PW-3) and Syed Mohammad (PW-4) have stated in omnibus manner that all the respondents except Ramprasad had assaulted the deceased Gajanand and gave various blows of stick. In postmortem report, Dr. R.K. Mishra (PW-5) found six injuries to the deceased Gajanand. However, one single injury was caused to the deceased Gajanand due to which ribs were fractured and spleen was ruptured and resulted in his death, therefore, out of aforesaid respondents there was only one who tried to kill the deceased Gajanand. It would be apparent from the evidence of eye-witnesses, namely, Premchand (PW-1), Jugraj (PW-3) and Syed Mohammad (PW-4) that the respondents did not intend to kill anyone as they started beating the complainant Premchand first and after giving 2-3 blows they left him and started giving blows to the deceased Gajanand. The witnesses have stated that the respondent -Heera inserted a stick in the anal part of the deceased Gajanand. However, no such injury was found to the deceased Gajanand either by Dr. G.C. Shrivastava (PW-2) or Dr. R.K. Mishra (PW-5) in MLC or Postmortem report respectively. Hence, it would be apparent that the witnesses have exaggerated the overt acts of various respondents but due to all that exaggeration, their evidence cannot be discarded on whole. In this connection, the judgment of Hon'ble Apex Court in the case of "Ugra Ahir Vs. State of Bihar" [AIR 1965 SC 277] may be referred in which it has been held that the doctrine of "Falsus in uno, Falsus in omnibus" is not applicable in India. Villagers are rustic person and therefore, possibility cannot ruled out that they would tell falsehood. It is the duty of the court to pick up the grains of truth from the chaff of the falsehood and if it is not possible to do so then the court is not permitted to create a new story on 8 Cr.A.No.200/1999 its own. In the present case when the complainant Premchand (PW-1) and Jugraj (PW-3) found injured then it cannot be presumed that no incident took place and the respondents have not assaulted anyone, hence it was the case in which truth can be picked up from the chaff of the falsehood. Thus, the trial Court committed error in discarding the evidence of eye-witnesses, namely, Premchand (PW-1), Jugraj (PW-3) and Syed Mohammad (PW-4).
14- According to these witnesses, Satyanarayan was only the person who assaulted the complainant Premchand whereas the Jugraj (PW-3) has stated that it was the respondent -Satyanarayan who gave blow of stick on his head and arm, hence it would be apparent that only respondent Satyanarayan had assaulted the complainant Premchand (PW-1) and Jugraj (PW3), hence remaining respondents cannot be convicted of the charge under Section 323 of IPC along with the respondent Satyanarayan. However, eye- witnesses, namely, Premchand (PW-1), Jugraj (PW-3) and Syed Mohammad (PW-4) did not mention that who assaulted on the chest of the deceased Gajanand causing fracture of three ribs. It would be apparent that the respondents had participated in the crime they were armed with stick and virtually they prohibited the deceased Gajanand not to plough the field but when one respondent assaulted the deceased with stick causing fracture on his left arm then the remaining respondents have participated in crime. Thus, their common intention can be presumed for the offence under Section 325 of IPC.
15- When it is apparent that the respondents did not intend to kill the deceased Gajanand and therefore, no one knew that one of them would assault the deceased Gajanand so that he would have sustained fracture of ribs and he would have died due to rupture of spleen, hence it was for the prosecution to prove against a particular accused that he committed such crime and he killed the deceased Gajanand.9 Cr.A.No.200/1999
If it would have been proved that the accused could be convicted for the offence under Section 304 (Part II) of IPC because none of the accused intended to kill the deceased Gajanand, however the remaining respondents cannot be convicted for the offence under Section 304 (Part II) of IPC because they did not intend to cause such fatal injuries to the deceased Gajanand. If the entire overt act of the respondents are considered then nobody gave any blow on the head of the deceased and no vital part of the deceased like heart, liver and lungs have been found ruptured. If the allegations as made by the witnesses relating to the respondent Heera are considered then if he would have inserted a stick in the anal part of the deceased Gajanand upto one feet then the intestine of the deceased would have been ruptured but no such injury was found either by Dr. G.C. Shrivastava (PW-2) or by Dr. R.K. Mishra (PW-5). Hence, it would be apparent that none of the respondents had intended to cause any fatal injury to the deceased and therefore, their common intention or object cannot be presumed that they intended to kill the deceased Gajanand or to cause any fatal injury to the deceased Gajanand to cause death. When the actual culprit who caused injury on the chest of the deceased Gajanand is not located then all the accused cannot be convicted under Section 302 or 304 (Part II) of IPC either directly or with the help of Section 149 of IPC. 16- In the present case when the witnesses have turned in favour of Ramprasad and it is found that there is no participation of the the respondent Moti as shown by the witnesses specifically then the incident would have been caused by four persons and therefore, no unlawful assembly was found to be constituted. Hence, none of the respondent could be convicted of offence under Section 147 of IPC. Therefore, the respondents cannot be held liable for any offence with the help of Section 149 of IPC but their act would be considered under Section 34 of IPC. Since the main charge 10 Cr.A.No.200/1999 of Section 302 of IPC was appended against each of the accused person then they had knowledge of allegation made by the prosecution against him and therefore, if they are convicted for the offence with the help of Section 34 of IPC then no prejudice would be caused to these respondents. 17- In this connection the judgment of Hon'ble Apex Court in the matter of "Pashora Singh and another Vs. State of Punjab"[AIR 1993 SC 1256] may be referred in which it has been laid down that if the main culprit is not located and remaining accused persons had no common intention to kill the deceased or to cause any fatal injury to the deceased then none of the accused can be convicted for murder of culpable homicide not amounting to murder. Under these circumstances, none of the respondents can be convicted for the offence under Section 302 or Section 304 (Part II) of IPC either directly or with the help of Section 34 of IPC. However, it is apparent that the respondents had intended to voluntarily cause grievous hurt to the deceased Gajanand. When they had gathered at the spot with stick and thereafter they used the stick by causing injuries to the deceased Gajanand thus, common intention can be presumed to cause grievous hurt to the deceased Gajanand.
18- As discussed above, the respondents Moti and Ramprasad were properly acquitted by the trial Court thus after the death of respondent Heera, the matter only remained for respondents No.3 to 5, namely, Hajari, Ramesh and Satyanarayan. They took the plea of right of private defence but such plea was not taken properly in the case. They examined one Naib Tahsildar M.S. Quereshi as DW-3 and other defence witnesses to show possession over the property but when the injunction order was passed in favour of the deceased Gajanand which annexed as Ex-P/29 then for Criminal Court it was not necessary to deal with possession of the property. If the deceased Gajanand was not in possession of the property still it was for the 11 Cr.A.No.200/1999 respondents No.3 to 5 to inform the police that he was violating the status quo and interfered in the possession of the respondents. However, instead of doing so they started assaulting the deceased and ultimately the deceased Gajanand died due to injuries. In such circumstances, no right of private defence was available to the respondents. Similarly, if the deceased Gajanand was getting his field ploughed with the help of tractor driven by Jugraj (PW-3) then such act did not give sudden provocation to the respondents on the contrary each of them came to the spot with stick in their hands and therefore, it was a planned overt act of the respondents to restrain the deceased Gajanand from ploughing that field. Hence, in the light of provisions of Section 39 of IPC, the overt act of respondents No.3 to 5 was done voluntarily and therefore, it was proved by the prosecution beyond doubt that respondents No.3 to 5 have voluntarily caused grievous hurt to the deceased and each of them was liable for the charge under Section 325 read with Section 34 of IPC.
19- In the eyes of law, against the judgment of acquittal, if the appellate Court has another view then re- appreciation of evidence cannot be done but in the present case the trial Court has superficially appreciated the evidence to cause miscarriage of justice. There are two witnesses Premchand (PW-1) and Jugraj (PW-3) who sustained injuries and though their injuries were found to be simple in nature, however they were discarded by the trial Court without any cogent reason. In such circumstances, it is a fit case in which interference should be done by the appellate Court in the judgment passed by the trial Court and therefore, in this appeal it would be appropriate to convict respondents No.3 to 5 for the offence under Section 325 read with Section 34 of IPC. Similarly, it is proved that the respondent Satyanarayan had voluntarily caused hurt to the complainant Premchand and victim Jugraj, hence he is also liable on two count charges of 12 Cr.A.No.200/1999 offence under Section 323 of IPC. Since the respondents Hajari and Ramesh did not assault the complainant Premchand or victim Jugraj then they cannot be convicted on any count charge of Section 323 of IPC either directly or with the help of Section 34 of IPC.
20- So far as sentence part is concerned, learned counsel for the respondents has submitted that each of the respondent was first offender and possibility cannot be ruled out that they had exceeded their right or private defence. They have faced the trial and appeal for last 21 years and respondents No.3 to 5 have remained for more than 6 months in custody during trial. In such circumstances, they should not be sent to jail again. Submission made by learned counsel for respondents No.3 to 5 may be accepted and they may be sentenced with jail sentence for which they have already remained in custody but some fine should be imposed upon them.
21- On the basis of aforesaid discussion, the appeal filed by the State is hereby disposed off with the direction that that the appeal filed by the State against respondents No.1 and 6 is hereby dismissed in toto, whereas the appeal filed against respondents No.3 to 5 is hereby partly allowed. Respondents No.3 to 5 are hereby convicted for the charge under Section 325 read with Section 34 of IPC and sentenced with jail sentence for the period for which they have already remained in custody and fine of Rs.5,000/- is imposed upon each of the respondents No.3 to 5 for aforesaid offence. The respondent Satyanarayan is also convicted on two count charges of Section 323 of IPC and sentenced to jail sentence of the period for which he remained in the custody. Respondents No.3 to 5 shall deposit the fine amount before the trial Court within a period of two months from today failing which respondents No.3 to 5 shall undergo 6 months RI. If fine is deposited then the legal representatives of the deceased Gajanand would get a sum of Rs.10,000/- by way of 13 Cr.A.No.200/1999 compensation.
22- All the respondents are on bail and their presence is no more required before this Court, hence it is directed that their bail bond shall stand discharged.
23- Copy of the judgment be sent to the trial Court for information and compliance with the direction that recovery of fine shall be done as per Sections 67 to 69 of IPC.
(N.K. Gupta) (Anand Pathak)
Judge Judge
17/01/2017 17/01/2017
Anil*