Madhya Pradesh High Court
Govinda And Ors. vs State Of M.P. on 2 May, 2006
Author: Brij Mohan Gupta
Bench: Brij Mohan Gupta
JUDGMENT A.K. Gohil, J.
1. In this appeal filed under Section 374 of the Code of Criminal Procedure, appellants have challenged the judgment of their conviction under Sections 302/34, 325/34 and 323 of IPC for life imprisonment, three years' R.I. and six months' R.I. respectively passed by Sessions Judge, Guna in Sessions Trial No. 207/91 for committing the murder of one Bhagchand and causing injuries to Hariram and Suraj.
2. Facts giving rise to this appeal as per prosecution story are that accused persons and the complainant belong to Dhimar community and reside in "Navin" Colony situated at Bajrangarh near "20 Bhuji Mataji". Said colony has been established for rehabilitating the sufferers of submergence due to construction of Gopi Krishna Sagar Dam. The incident took place two days after "Holi". At about 4 PM, people were going to house to house in "Navin" Colony for breaking "Dauji". "Dauji" is a custom which is celebrated in the said community after "Holi" festival. At this occasion villagers used to prepare idol of Lord Ganesha by cow dung in front of their house and after playing "Holi" they used to assemble and visit each and every house together and break that idol. This practise is known as breaking "Dauji". The occupants of the house of which "Dauji" is broken receive the people who arc coming for breaking "Dauji" and distribute them raw sugar "(Gud"). On the date of incident, i.e., on 2-3-91, on the occasion of "Holi", residents of Village Navin Colony were going every house for breaking "Dauji". Hariram (P.W. 1) and his son Dhanesh (P.W. 8) were standing at some distance from the house of appellant Govinda. Villagers came to the house of appellant Govinda and broke the "Dauji" and thereafter they went to the house of Khushal and thereafter when they were going to the house of Haiku Dhimar, in the way they found a Public tap near the house of Govinda. Hariram was about to drink water from that tap, but appellant Govinda came with a "Lathi" and refrained Hariram from drinking water. Hariram protested and said that he will drink water. Mutual abuses were hurled and then Ramesh Dhimar, Nannu Dhimar and Kamlu also came there. Nannu caught hold of Hariram and Kamlu Dhimar, Ramesh Dhimar and Govinda beat him by Lathi. Dhanesh (P.W. 8), seeing his father getting beaten, rushed to his house to inform. In the way he met his brother Suraj to whom he informed about the incident and thereafter Suraj rushed to save his father. Bhagchand also came there. Suraj and Bhagchand were also beaten. When Komal rushed to save Bhagchand, he was also beaten. Bhagchand and Suraj became unconscious and fell on spot. Bhagchand and Suraj were taken to hospital in a "Tonga". In District Hospital Guna, doctors referred Bhagchand to Gwalior Hospital. While he was being taken to Gwalior Hospital, in the way he succumbed to his injuries (hereinafter referred to as "deceased" only). FIR of the incident was lodged by Hariram (P.W. 1) vide Ex. P-1. Panchayatnama Lash was prepared on 3-3-91 and the body of the deceased was referred to post-mortem which was performed on the same day at 11 AM. Matter was investigated and charge-sheet was filed.
3. During trial, appellants abjured their guilt. Their defence was that they have been implicated falsely. Prosecution examined as many as twenty witnesses and in defence three witnesses were examined. Trial Court after considering the evidence on record found that FIR was lodged only against present appellants and subsequently improvements were made and other accused persons were implicated. Therefore, though initially charge-sheet was filed against sixteen accused persons, while one was tried by Juvenile Court, the Trial Court acquitted eleven accused persons and convicted the present four appellants against which appellants have preferred this appeal.
4. Learned Counsel for the appellants submitted that evidence of four eye-witnesses Hariram (P.W. 1), Suraj (P.W. 3), Gajju (P.W. 5) and Komal (P.W. 10) is not consistent. They have made omnibus allegations against the appellants for causing injuries to the deceased by Lathi. Learned Counsel for the appellants took us to the evidence of all the injured and eye-witnesses and submitted that the allegations are omnibus. He submitted that there is improvement in the prosecution story. Witnesses have not been able to assign specific role to each appellant. In nutshell it was argued that initially FIR was lodged only against four persons. Govinda abused and Ramesh, Nannu and Kamlu came with Lathi and gave Lathi blows to Hariram, Bhagchand and Suraj. Nannu and Govinda gave Lathi blows to Bhagchand and Ramesh assaulted by Lathi to Suraj and Kamlu gave Lathi blows to Hariram. Therefore, it was vehemently argued that initially allegations for causing Lathi injuries to the deceased was only against Nannu and Govinda and subsequently before the Court omnibus allegations have been made against all the appellants including acquitted persons. Learned Counsel for the appellants submitted that in view of the decision in the case of Prem Singh v. State of Punjab , the evidence of four eye- witnesses those who are also injured witnesses is not reliable because on the basis of aforesaid evidence, Trial Court has acquitted eleven other accused persons, therefore, appellants are also entitled for the same benefit. In the last he submitted that it is not known that who caused fatal blow to the deceased and as allegations are omnibus against all the appellants, therefore, conviction of the appellants under Section 302/149, IPC is bad in law and the same cannot be affirmed. It was also argued that no independent witnesses have been examined and it is a case of sudden fight, therefore, the conviction be reduced and appellants be released on undergoing jail sentence.
5. In reply, learned Counsel for the respondents supported the judgment of the Court below and prayed for dismissal of appeal.
6. After hearing learned Counsel for the parties, we have perused the evidence on record.
7. It is true that there are four injured eye-witnesses in this case. They are Hariram (P.W. 1), Suraj (P.W. 3), Gajju (P.W. 5) and Komal (P.W. 10). All of them have stated that in the colony they were breaking "Dauji" alongwith other community members and the incident took place because the deceased wanted to drink water from a Public Tap and he was restricted by Govind. All the witnesses have stated that all have inflicted Lathi blows to the deceased and injured. It is also true that there is no specific evidence that who caused fatal blow to the deceased. It is also not specifically mentioned that who inflicted Lathi injuries to injured persons. It is also the position on record that FIR was lodged against four persons and thereafter twelve other persons were implicated in the case. They were all prosecuted, out of which Trial Court acquitted eleven persons and one was tried by the Juvenile Court. It has also come in the evidence of witnesses that the incident took place because of sudden fight. Hariram (P.W. 1) is brother of deceased Bhagchand. Suraj (P.W. 3) is son of Hariram (P.W. 1). Komal (P.W. 10) is also brother of deceased and Gajju is the nephew of Hariram (P.W. 1).
8. Injured Gajju (P.W. 5) was examined by Dr. Pradumn Kulkarni (P.W. 7) and rest of the injured persons were examined by Dr. Satyendra Om Bhola (P.W. 8). As per evidence of Dr. Pradumn Kulkarni (P.W. 7), Gajju (P.W. 5) received four contusions out of which three were on the hand and one was on neck. X-ray was advised for injury No. 1. All the injuries were caused by hard and blunt object within 48 hours. Dr. R.K. Jain (P.W. 9) did not find any bony injury in his right hand. Dr. Satyendra Om Bhola (P.W. 8) has examined Komal (P.W. 10). He received three contusions. Injuries Nos. 1 and 2 were simple in nature and for injury No. 3 X-ray was advised. Suraj (P.W. 3) was also examined by this doctor. He received five contusions. Injury No. 3 was simple in nature and for other injuries X-ray was advised. As per evidence of Dr. R.K. Jain (P.W. 9), no bony injury was found on the body of Suraj (P.W. 3). Hariram (P.W. 1) had received two lacerated wounds on the forehead and on right frontoparietal region and four contusions. X-ray was advised and as per X-ray report, fracture was found in the chest towards right side and in the eighth rib and also in the scapula bone.
Deceased Bhagchand was also medically examined by Dr. S.O. Bhola (P.W. 8) and as per medical report, he received four lacerated wounds in the left occipetal region, left parietal eminence, right parietal eminence and on right leg respectively. He was admitted in the surgical ward at Guna where he was unconscious. Thereafter, he was referred to Gwalior and in the way he died. Post-mortem of the dead body was performed by Dr. V.K. Diwan (P.W. 19). During post-mortem, all the aforesaid lacerated wounds were confirmed with two additional injuries of abrasion. It was found that all the injuries were ante mortem. Nature of death was homicidal and the head injury was sufficient to cause death in the ordinary course of nature. From the aforesaid evidence of doctor, it is clear that the deceased died a homicidal death because of injuries received by him in the incident.
9. Now the question for consideration before us is that who caused those injuries to deceased. As per FIR, it was caused by Nannu and Govinda and as per evidence before the Court, the injuries were caused by all the appellants. Though, there were allegations of causing injuries by other accused persons as well, but the Court below has separated the "grain from chaff" and found that the appellants are responsible for causing and inflicting lacerated injuries to deceased. Now the sole question is whether intention of the appellants was to cause death of deceased or the incident took place all of a sudden.
10. It is not in dispute that the incident took place where all the members of the community were breaking "Dauji" on the occasion of "Holi" and going house to house. The incident took place when the deceased wanted to drink water from a public tap and all of sudden all the appellants had inflicted lathi blows to the injured. It has not come in the evidence that there was any premeditation or enmity between them. There is also no specific evidence that who caused fatal blow to the deceased. It has also not been specifically mentioned that who caused lathi injuries to injured person. Initially the FIR was lodged only against 4 persons and thereafter 12 other persons were implicated.
11. In the case of Sarman v. State of Madhya Pradesh , it has been held that no witness has come forward as to which of the accused has caused which injury. In these circumstances, we find it difficult to award punishment under Section 302/149, IPC. In the case Rewa Ram v. Teja and Ors. reported in 1998 SCC (Cri.) 1350, the Supreme Court has held that in the absence of evidence to show, who caused fatal injuries to the deceased, High Court has rightly convicted the accused under Section 326. In the case of Radhey Shyam v. State of M.P. reported in 1999 SCC (Cri.) 72, the Supreme Court has held that since there was no evidence to show that the appellant had given the fatal blow or any blow which was likely to cause the death of the deceased, the conviction should be under Section 325, IPC.
12. In such circumstances, it is true that in any case the case will not fall within the purview of Section 300, IPC, but looking to the genesis and the nature of the incident which took place all of sudden and as has been held in the aforementioned cases, when it is not known that who caused fatal blow, on the basis of omnibus allegation and as argued by the learned Counsel for the appellants, when except the injured no independent witnesses have supported the version, the case will fall within the purview of Section 326, IPC.
13. Thus, after considering the totality of the facts and circumstances of the case, we partly allow this appeal, set aside the conviction under Section 302/34, IPC and instead, convict the appellants under Section 326/34, IPC. Conviction of the appellants under Sections 325/34 and 323 of IPC is affirmed. The fine amount so imposed by the Trial Court is also affirmed. So far as the jail sentence is concerned, the appellants have already suffered jail sentence of more than two and half years, which appears to be just and proper, therefore, they are entitled to be released on undergone jail sentence. They are on bail, therefore, their bail bonds and surety bonds be discharged.