Madhya Pradesh High Court
Tita Bariya & Ors. vs State Of M.P. on 22 September, 2021
Author: Vivek Rusia
Bench: Shailendra Shukla, Vivek Rusia
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HIGH COURT OF MADHYA PRADESH: BENCH AT
INDORE
D.B. : Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Shailendra Shukla, JJ.
Criminal Appeal No.762/2008
1 Tita S/o Bhurka Bariya, aged about 30
years,
2 Mangliya S/o Paru Bariya, aged about
22 years
3 Paru S/o Vesta Bariya, aged about 50 Appellant (s)
years,
4 Piku S/o Khemchand Bhuriya, aged
about 22 years
5 Revchand S/o Khemchand Bhuriya,
aged about 25 years
6 Bhurji S/o Fakir Bariya, aged about 45
years, All R/o Village Negadiya, P.S.
Kalyanpura, District Jhabua, M.P.
Versus
State of Madhya Pradesh through Police
Station -Kalyanpura, District Jhabua, Respondent (s)
M.P.
Ms. Sharmila Sharma, learned counsel for the appellant.
Shri Amit Singh Sisodia, learned Government Advocate for
the respondent/State.
JUDGMENT
(Delivered on 22nd September 2021) PER VIVEK RUSIA, J: -
Appellants has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 24.06.2008, passed by Additional Sessions Judge, Jhabua, District Jhabua in Sessions Trial No.205/2007, by which the appellants have been convicted
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for offence under Sections 302/149 of Indian Penal Code (for short "IPC") and sentenced to undergo life imprisonment and Rs.250/- each , with usual default stipulation.
(2). The case of the prosecution, in brief, is as follows: -
The complainant Kallu S/o Babu Tahed (hereinafter referred as deceased) lodged a report on 20.05.2007 in Out Post:
Anterveliya, which was registered by, B.S. Baghela Assistant Sub Inspector (PW-11) under Section 294, 323, 324/34 of I.P.C. against these appellants. According to the contents of the FIR accused Paru S/o Vesta was demanding Rs. 1000/- from deceased and for which he called a meeting of Gram Panchayat. The Panchayat took a decision and directed the deceased to return the amount of Rs.1500/- to Paru. The deceased along with his uncle Ravji S/o Raychand (PW-6) went to the house to bring the money. Since there was a delay in returning from the house, the accused Tita S/o Bhurka, Bhurji, Mangaliya, Paru, Piku, Khemchand became annoyed and started abusing him by filthy language. They ran towards him with stone in their hand. The deceased ran away from the spot. Tita threw a stone which hit on the back side of his head and he fell. The Tita took out the axe and gave a blow on his head. Revchand, Bhuriya, Paru joined him and Mangaliya, Bhurji, Piku, Revchand and Paru started assaulting him by means of stones, fists and legs. He sustained injuries on his jaw, cheek, hand, chest and knee. Raoji, Shambhu and his father Babu (PW-1) and Parsingh (PW-5) came and rescued him. Then all the accused persons fled away from the spot. The deceased alongwith his wife Shammabai (PW-2) and uncle Shambhu went to Police Station to lodge a report.
After registration of the FIR, the prosecution set into motion the deceased was sent for medical examination. Dr. Anand
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Atulkar (PW-12) examined his injuries and advised for an X-ray. He gave a query report (Ex.P/17) that the injury on his head could be life-threatening. Spot map Ex. P/15 was prepared. During the treatment, Kallu died and information was sent to Chowki Anterveliya on 21.05.2007, which was registered as merg No.05/2007. Safina form was issued. Dead body Panchawana was prepared vide PW-13. As per the postmortem report, the deceased died because of the injuries caused by the appellants. Accordingly, section 302 of I.P.C. was added in the FIR. A.S.I. R.C. Savliya (PW-13) recorded the statement of witnesses and arrested all the appellants. An axe was recovered vide Ex. P/7 on the disclosure memo of accused Tita. Bloodstain cloths were recovered and sent for chemical test vide Ex. P/18. The report was received vide Ex. P/19. Shareef Khan (PW-10) submitted a charge sheet against the appellants under Section 323, 324, 294, 302, 147, 148, 149 of I.P.C. An additional charge-sheet was filed on 16.11.2007 after the arrest of co-accused Bhurji.
(3). The trial was committed to the Sessions Court. The learned Additional Sessions Judge framed the charges, which were denied and appellants pleaded for trial.
(4). The prosecution has examined as many as 13 witnesses as PW-1 to PW-13 and got marked 19 documents as Ex.P/1 to Ex.
P/19. In defence, the appellants did not examine any witnesses.
(5). After evaluating the evidence that came on record, vide judgment dated 24.06.2008, all the appellants have been convicted and sentenced as stated above. Hence, this appeal before this Court.
(6). Learned counsel for the appellants submitted that the trial court has committed a grave error of law as well as on facts while convicting the appellants under Section 302/149 of I.P.C. Once
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the appellants have been discharged under sections 147 and 148 of I.P.C., then they have wrongly been convicted under section 302/149 of I.P.C. There was no common object between the appellants to commit the offence. The panchayat was called in respect of the return of money by the deceased. Since he was taking so much time to bring the money, hence Tita got annoyed and assaulted him. The dispute occurred suddenly without preplanning. There was no prior meeting of mind to form a common object of an unlawful assembly. In support of her contention, learned counsel for the appellants has placed reliance over the judgment passed by Apex Court in the case of Bhagwan Jagannath Markad Vs. State of Maharashtra: (2016) 10 SCC 537 and Susanta Das vs. State of Orissa : (2016) 4 SCC 371.
(7). It is further submitted that as per the opinion of Dr. Anand Atulkar (PW-12), the injuries, 3,4 and 5 were simple in nature and 1 and 2 were caused by the pointed stone. As per the opinion of Dr G.S. Awasya (PW-7) who conducted the autopsy, the head injury was a lacerated wound that could not have been caused by an axe. Although the human blood was found on the axe it was inconclusive, hence, the blood group of the deceased could not be matched. By way of alternate submission, learned counsel for the appellants submitted that appellant No.1 is in jail and remaining appellants No.2 to 6 have been released on bail long back. The dispute arose because of sudden provocation and in a heat of passion. Hence, appellant No.1 alone is liable to be convicted under section 304 (Part-II) I.P.C. . There are general allegations against appellants No.2 to 6 causing injuries by fist and kicks and also stone. Therefore, at the most, they are liable to be convicted under section 323/149 of I.P.C for which they have undergone more than one year of incarceration, therefore, they may kindly be
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acquitted.
(8). Learned Government Advocate appearing for the respondent/State refuted the above submission by submitting that the appellants have rightly been convicted for the offence punishable under section 302/149 of I.P.C. as they formed the unlawful assembly to commit the crime. Even if the injury was caused by Tita through an axe even then other members of unlawful assembly in prosecution of the common object of the assembly are guilty of the same offence. It is further submitted by the learned counsel that there are mainly two components to section 149 of I.P.C. Firstly, offence committed by members of the unlawful assembly consisting of 5 or more members and secondly, such offence must be committed in prosecution of the common object. It is not necessary to prove which member of unlawful assembly did the overact. In support of his contention, he has placed reliance Chandra Bihari Gautam and others Vs. State of Bihar: (2002) 9 SCC 208, State of Madhya Pradesh Vs. Killu Alias Kailash and others: (2020) 16 SCC 735 and Charan Singh and others Vs. State of U.P (2004) 4 SCC 205. It is further submitted that all the accused were present on the Panchayat and with a common object caused the injuries to the deceased, which turned fatal. As per the query report, the injury No.1 caused by means of the axe was fatal. Hence, no interference is called for. All the appellants are liable to undergo life imprisonment as awarded by the learned Additional Session Judge.
We have heard the learned counsel for the parties and perused the record of the trial court.
(9). The deceased himself lodged an FIR at Out Post:
Anterveliya on 20.05.2007 against the appellants which were
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recorded vide crime No. 028/2007 under Section 294, 323, 324/34 of I.P.C, later on, transferred and registered at Police-Station Kalyanpura at crime No.61/2007. According to the FIR, the Paru S/o Vesta was demanding Rs. 1000/- from the deceased and for which he called the meeting of Panchayat, in which it was decided that he would return the amount of Rs. 1500/- to Paru. When he brought the money from his house, then Tita S/o Bhurka, Bhurji, Mangaliya, Paru, Piku, Khemchand started abusing him with filthy language and ran towards him with stone in their hands. They started pelted the stone, the stone thrown by Tita hit his head and he fell down. Thereafter, Tita gave a blow by axe and other assaulted by stone, leg and fist. Initially, FIR was registered under Section 294,323,324/34 of I.P.C. because there was no report in respect of the nature of injuries. The deceased was sent for medical examination and as per Ex. P/17 report following injuries was noticed:
(1). incised wound- Size 11/2 x ½ above left ear even (left) region skin deep.
(2). Incised wound- Size 1 1/2x ¼ behind Rt ear vertically present.
(3). Lacerated wound- Size ½ x 1/8 over left side of chin skin deep.
(4). Lacerated wound- Size 1/2 x 1/8 over left side of chick clotted blood present.
(5). Contusion- Size 1 ½ x ½ diffuse swelling over Right scapular region Injuries No.1 and 2 were caused by a sharp and hard object.
As per the query report, the injury could be fatal. These appellants were arrested and an axe was recovered on disclosure of Tita. During the treatment, the deceased was died and accordingly, offence under Section 302 of I.P.C. was added.
(11). In order to prove the charges, the prosecution has examined Babu (PW-1) father of the deceased, who was also present in the
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Panchayat and fully supported the case of the prosecution. In cross-examination, he has stated that the Tita was carrying an axe in one hand and a stone in another hand which he threw from the deistance of 25 steps. He has further admitted that before the said incident there was no enmity between the deceased and Tita.
(12). The wife of the deceased Shammabai has been examined as PW-2, who was also present on the spot and witnessed the entire incident. Pappibai (PW-3), Dulesingh (PW-4), Parsingh (PW-5) and Raoji (PW-6) have fully supported the case of the prosecution. Except for Bablu (PW-1), Shammabai (PW-2) and Pappibai (PW-3), all other witnesses are independent witnesses, who were present in the Panchayat meeting and have seen the present appellants assaulting the deceased.
(13). Dr. R.C. Sawaliya (PW-12), who examined the deceased found five injuries as stated above. According to him, the deceased was unconscious. Injuries No.3, 4 and 5 were simple in nature.
(14). Dr. G.S.b Awasya (PW-7) conducted the postmortem, who also found a lacerated wound on the temporal part of the body. He also found a fracture in the temporal region. However, in cross-
examination, he stated that the head injuries were lacerated and could not have been caused by an axe. All the injuries were antemortem. It is clear from the aforesaid evidence the death of the deceased was homicidal in nature.
(15). The only issue which requires consideration is whether the said commission of the crime was pre-planned or premeditated or occurred out of sudden provocation hence falls under any exception of Section 304 of I.P.C.
(16). It is not in dispute that the Panchayat meeting
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was called by Rewa as the deceased was not returning Rs.1,000/- to him. As per the statement of the PW-1 to PW-3 and the version of FIR, the Panchayat directed deceased to return Rs. 1,500/- to Rewa. The deceased went to his house to bring the money. Since there was delay hence, appellants become annoyed and started abusing him with filthy language and pelted stone upon him. One of the stones has hit on his head and he fell down. Thereafter, Tita gave a blow by means of axe due to which he went into a coma and died. Therefore, the incident was not pre-planned but occurred due to sudden heat of passion. Hence, it falls under the category of 304 (Part- II) of I.P.C. not under Section 302 of I.P.C. the appellants have been discharged under sections 147 and 148 of the I.P.C. In the case of Ambalal Sarabhai Enterprise Ltd. vs. Ks Infraspace Llp Ltd. and another [2020 (1) Supreme 57]. because of the sudden fight and absence of pre-meditation, the act committed on the heat of passion the conviction u/s 302 IPC has been converted into 304 Part-II IPC, section 300 exception-4 by the Apex Court. In the case of Smt.Sandhya Jhadav Vs. the State of Maharashtra - [2006 AIR SCW 1678] the offence has been converted u/s 304 Part-II of the IPC instead of section 302 IPC because of the solitary blow causing death after considering the factual situation. Likewise, in the case of Shambhoo Singh vs. State of Rajasthan- [AIR 2008 SC 3200] again due to the sudden quarrel incident taken place out of the land dispute the conviction of the accused of murder has been altered to conviction u/s 304 Part-I IPC.In view of the above discussion we are of the opinion that appellant No.1 :Tita who has caused the injury by means of stone and axe is liable to be punished under Section 304(Part-II) I.P.C. instead of section 302 I.P.C. .
(17). So far as appellants No.2 to 6 are concerned, they have been convicted with the help of section 149 of I.P.C. In the case of
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Dev Karan alias Lambu Vs. State of Haryana (2019) 8 SCC 596, the Apex Court has examined the scope of section 149 of I.P.C. and held that the common object of assembly is normally to be gathered from the circumstances of each case such as the time and place of the gathering of the assembly, the conduct of the gathering as distinguished from the conduct of the individual members. For example, if more than five people gather together and attack another person with deadly weapons eventually resulting in the death of the victim, it is wrong to conclude that one or some of the members of such assembly did not share the common object with those who had inflicted the fatal injuries. The emphasis in section 149 of I.P.C. is on the common object and not on common intention. Where the common object of an unlawful assembly is not proved, the accused persons cannot be convicted with the help of Section 149. The only thing required is that the member of the assembly should have understood that the assembly was unlawful and was likely to commit any of the acts. The word "object" means the purpose or design and, in order to make it "common", it must be shared by all.
(18). Section 141 of I.P.C. defines unlawful assembly, which means five or more persons assembled with common object to commit any offence. Whenever force or violence is used by unlawful assembly or any member in the prosecution of the common object every member of such assembly is guilty of the offence of rioting under section 146. If rioting was done by the deadly weapon then punishment is provided under section 148, which may extend three years and finally under section 149, if the offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, every person at the time of committing of offence is guilty of that offence
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committed by one person in the prosecution of that object. The common object of unlawful assembly has to be inferred from the fact and circumstances disclosed.
It is not the case of the prosecution that, the appellants were gathered in Panchayat for the prosecution of the common object to kill the deceased. The sudden unpremeditated fight started because the deceased was causing the delay in bringing the money from his house. The appellants have been acquitted under sections 147 and 148 of I.P.C. therefore the allegation of using force or violence by the unlawful assembly in prosecution of the common object has not been proved. As held above, out of the heat of passion and without premeditated mind, the Tita and others have started abusing and pelting stone upon him, therefore, appellants No.2 to 6 have wrongly been convicted under Section 302 with the help of section 149 of I.P.C.
They pelted the stone and assaulted the deceased by fist and leg. The injuries No.3,4 and 5 other were simple in nature, thus they are liable to be convicted under Section 323/34 of I.P.C and sentenced to one-year imprisonment with a fine of Rs. 250/- each.
(19). Taking into consideration the above-said facts and circumstances, we proceed to pass the following order:
(i) Criminal Appeal is partly allowed.
(ii) The conviction of appellant No.1 is altered from 302 of I.P.C. to Section 304(Part-II) of I.P.C. and the sentence of life imprisonment is reduced to the period already undergone by him .
(iii). The conviction of appellant No.2 to 6 is altered from 302/149 of I.P.C. to Section 323/34 of I.P.C. and sentenced to one-year imprisonment with a fine of Rs. 250/- each. If the appellants No.2 to 6 have not completed their one-year jail
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sentence, they are directed to surrender immediately before the trial court to undergo their remaining jail sentence. However, they shall be entitled to set off under section 428 of Cr.P.C.
(iv). Registry is directed to issue a supersession warrant in compliance with the present judgment so that the appellant No. 1 may be released forthwith if not required in any other case.
The registry is directed to send back the Trial Court records forthwith along with the copy of this judgment.
( VIVEK RUSIA ) ( SHAILENDRA SHUKLA )
JUDGE JUDGE
praveen/-
Digitally signed by PRAVEEN
NAYAK
Date: 2021.09.24 18:09:58
+05'30'