Madhya Pradesh High Court
Mohansingh And Ors. vs State Of Madhya Pradesh on 22 August, 2005
Equivalent citations: 2005CRILJ4329
Author: S.K. Gangele
Bench: S.K. Gangele
JUDGMENT
1. For taking exception to the judgment and order of conviction and sentence passed against him by learned II Addl. Sessions Judge, Neemuch in the matter of Sessions Trial No. 64/1995, the appellants have approached this Court by preferring this appeal. Learned Judge had convicted the appellants for the offence punishable Under Sections 148, 302/149 and 323/149 of the IPC and sentenced each of the appellants to undergo R.I. for two years and fine of Rs. 1000/-, R.I. for life and fine of Rs. 5000/- and one year R.I. and fine of Rs. 1000/- in respective counts. In default of payment of fine each appellant was further sentenced to undergo one month R.I. six months R.I and one month R.I., in respective sections. However the substantive sentences were directed to run concurrently.
2. Briefly stated the prosecution case as unfolded before the trial Court is that on 7-2-1997 complainant Balwant Singh (P.W. 2) lodged the report in the police station that he was taking tea in his house along with Amar Singh (P.W. 3) and one Basantilal in the evening at 6.00 p.m. At that time his brother-in-law Ramsingh reached over there for calling them for taking supper. At that juncture, appellants having farsa, dharia and lathi tried to surround the deceased Ramsingh upon which Ramsingh ran away to save himself towards his house. They chased him and surrounded him in front of the house of one Fatesingh. Thereafter, they made exhortation to kill deceased Ramsingh and also delivered threat to kill the person who would come to save him. Appellant No. 1 Mohansingh dealt a farsa blow on the head of deceased Ramsingh. Appellant Ramesh S/o Khemraj caused injury on the head by dharia (a sharp edged weapon) resulting into fall of deceased on the ground. Blood was oozing from the wounds, thereafter again appellant. No. 1 Mohansingh caused injury on the back portion of the head of deceased by farsa and appellant Ramesh S/o Khemraj by dharia. Amarsingh (P.W. 3) tried to rescue deceased Ramsingh but he too was assaulted by appellant No. 7 Charansingh by dharia and appellant No. 6 Ramesh Bairagi S/o Kalidas by lathi. Amarsingh also fell on the ground, thereafter also he was assaulted by Charansingh by dharia and appellant No. 6 Ramesh S/o Kalidas by lathi. Thereafter, he (Balwantsingh, P.W. 2) also tried to save them but he was also assaulted by lathi by appellant Rajmal and Babulal. Upon hearing the sound of quarrel, villagers assembled there on which appellants ran away. Balwantsingh (P.W. 2) also mentioned in the FIR (Ex. P.2) that appellant No. 1 Mohansingh abducted the sister-in-law of the deceased Ramsingh in the preceding year from the date of incident and there was a Court case for this because of which they were having animosity. On the basis of the report, police registered the offence and entered into investigation,, Injured Ramsingh was sent for medical examination at Public Health Centre, Jeeran where Dr. Pradeep Sharma (P.W. 8) examined him and found incised injuries on his person. He issued MLC report (Ex. P. 30) and injured Ramsingh was referred for further treatment to Government Hospital, Tehsil Neemuch where he died in the same night. The police of police station, Neemuch received information about death of deceased Ramsingh in the hospital on the basis of which morgue intimation was recorded and R.U. Mansuri (P.W. 9), ASI went to hospital and prepared inquest report (Ex. P3) and thereafter sent the dead body for post-mortem and the same was performed by Dr. N. K. Goyal (P.W. 5), Postmortem report is Ex. P.27. R. U. Mansuri (P.W. 9) sent the murg diary to Jeeran police station in whose jurisdiction the incident was occurred. S.H.O. Dinesh Sharma (P.W. 10) received morgue diary and also registered the offence Under Section 302 of the IPC against the appellants and proceeded into investigation. After necessary investigation, charge-sheet was filed against the appellants for the offences punishable Under Sections 148, 302/149 and 323/149, 324/149 of the IPC and Section 27 of the Arms Act.
3. Before the trial Court appellants denied the prosecution allegations and pleaded innocence. According to them, they were falsely implicated because of enmity. In defence they examined one witness Pandit Saulal Sharma (D.W. 1). The learned trial Court tried the appellants and on the basis of prosecution evidence convicted the appellants as mentioned herein above.
4. The learned Sr. Advocate Shri H. S. Uberoi along with S/Shri P. Prasad and A.K. Saraswat, appearing for the appellants has submitted that the incident had occurred all of a sudden when deceased met on the way to the appellants. All the appellants were not the members of the unlawful assembly whose common object was to commit murder of Ramsingh and in prosecution of the said common object committed murder of Ramsingh and that deceased Ramsingh sustained three injuries caused by sharp edged weapon by two appellants i.e. appellant No. 1 Mohansingh and No. 2 Ramesh S/o Khemraj. Out of those three injuries only one injury proved fatal caused by appellant No. 1 Mohansingh. According to the learned counsel against appellants No. 1 Mohansingh and No. 2 Ramesh, the offence at the most punishable Under Section 304, Part II Of the IPC would be made out and against rest of the appellants offence Under Sections 324 and 323 of the IPC would be made out. The learned counsel has placed reliance on judgments rendered by Division Bench of this High Court in case of Bhanwarlal v. State of M.P., 2004 Cri LR (MP) 334 and in Cr. Appeal No. 222/ 1996 (Babukhan v. State of M.P., decided on 24th Feb. 2004 (Reported in 2004 Cri LJ 3299).
5. Per contra, the learned Dy. A. G. Shri Desai has submitted that all the appellants came together having deadly weapons and lathi in their possession. There was enmity between both the groups on account of abduction of sister-in-law of deceased, Ramsingh by appellant No. 1 Mohansingh. Appellants met deceased on the road, tried to encircle him and assault him but he ran away, thereafter appellants chased him and in front of the house of Fatesingh S/o Doulatram surrounded him, thereafter assaulted him by sharp edged weapon and lathis. When Amarsingh (P.W. 3) and Balwantsingh (P.W. 2) tried to rescue him, the appellants also assaulted both the witnesses and appellants ran away from the place of incident together, when villagers were reaching to the place of incident. The learned counsel has submitted that the Appellants, after forming unlawful assembly started assaulting deceased and the way in which they had acted is' sufficient to hold that the common object of the assembly was to commit murder of deceased Ramsingh and cause injuries to the person or persons who came to save him. Therefore, the learned trial Court has rightly convicted the appellants for the offence as mentioned here-inabove.
6. Having heard the learned counsel for parties and after perusing the entire record, we are of the opinion that though the appellant No. 5 Kishanlal S/o Khernraj was in the company of unlawful assembly of other appellants and also having lathi in his possession but in view of the statements of Balwantsingh (P.W. 2), Amarsingh (P.W. 3) and Nandan (P.W. 4), no overt act was attributed to him. He did not cause any injury to deceased or injured witnesses and also did not make exhortation to assault or commit murder of deceased Ramsingh by other appellants. His presence simpliciter would not be sufficient in the fact and circumstances of the present case to hold him responsible for commission of offence of murder of Ramsingh with the help of Section 149 of the IPC and causing simple injuries to witnesses. His total demeanor and inactiveness during the course of incident is sufficient to hold that he was not having common object to commit murder of deceased Ramsingh and in prosecution of the same participated in the incident along with other accused persons.
7. Injured eye-witness Balwantsingh (P.W. 2) and Amarsingh (P.W. 3) have deposed that they were knowing all the appellants. Deceased Ramsingh was brother-in-law of Balwantsingh (P.W. 2) and brother of Amarsingh (P.W. 3). On the date of incident, in the evening at 6.00 p.m. they were sitting in the house of Balwantsingh (P.W. 2) and taking tea. Deceased Ramsingh came to the house of Balwantsingh to call them for supper. At that time appellants Mohansingh, Ramesh S/o Khemraj, having farsa and dharia respectively in their possession, appellants Babulal, Kishanlal, Ramesh Bairagi S/o. Kalidas having lathi in their hand and appellant Charansingh possessed with dharia, all of a sudden surrounded deceased Ramsingh who ran away from their clutches but by chasing, again surrounded him to front of the house of one Fatesingh and there Ramsingh was assaulted by the appellants. Both the witnesses have described specific overt acts of the appellants. According to them first blow was dealt by appellant No. 1 Mohansingh by farsa and appellant No. 2 Ramesh S/o Khemraj by dharia on the head of deceased resulting into his fall on the ground. Deceased was thereafter again caused injury by farsa by appellant No. 1 Mohansingh and appellant No. 2 Ramesh by dharia. Blood started oozing from the injuries sustained by deceased Ramsingh on his head. When Amarsingh (P.W. 3) rushed to save his brother deceased Ramsingh, he was assaulted by appellant Charansingh by dharia, causing injury on his head and appellant No. 6 Ramesh Bairagi by lathi. Amarsingh fell on the ground. Thereafter Charansingh again dealt a dharia blow and Ramesh Bairagi, a lathi blow on his hand. After assault on Amarsingh and his fall on the ground Balwantsingh (P.W. 2) also tried to save them but he too was assaulted by lathi on his head by appellant No. 3 Rajmal and appellant No. 4 Babulal. In the mean time villagers assembled on the scene of occurrence whereupon appellants fled away. Balwansingh (P.W. 2) has proved his FIR (Ex. P.2) and inquest report (Ex.P.3) of deceased Ramsingh. Both the witnesses were cross-examined by Advocates of the appellants at length and in detail but nothing substantial has come in their cross-examination to attach vulnerability to their testimony. The learned counsel for appellants also could not point out any specific material in cross-examination which may corrode the testimony of both the witnesses. The statement of Balwantsingh (P.W. 2) is duly corroborated on material particulars by his FIR (Ex. P.2) and statements of both the eye-witnesses are also corroborated by medical evidence of Dr. Pradeep Sharma (P.W. 8) and Dr. N. K. Goyal (P.W. 5).
8. Dr. Pradeep Sharma (P.W. 8) examined the deceased first in time on 7-2-1997 in Primary Health Centre, Jeeran and found three incised wounds on right eyebrow, forehead arid right parietal region respectively. According to him incised wounds on eyebrow and forehead were simple in nature but injury No. 3 was grievous in nature. He proved his MLC report (Ex. P. 30). He also examined on the same day Balwantsingh (P.W. 2) arid found lacerated wound on his head upto bone deep, contusion with haematoma on right eye brow. Both the injuries were simple in nature caused by hard and blunt object. He proved MLC report (Ex. P.31). On the person of Amar Singh (P.W. 3) he found one lacerated wound between forehead and left eye brow, contusion haematoma on lateral border of wrist joint pink in colour, incised wound bone deep on middle of scalp and another incised wound on forehead above five inches from the base of nose. He opined that injuries No. 1 and 2 were caused by hard and blunt object and injuries number 3 and 4 by sharp edged weapon. All the injuries were simple in nature. He proved MLC report (Ex. P. 32J. This witness also examined appellants Charan' singh and Mohansingh on 27-2-1997 and ,'found no external injury on their person. They were complaining about sustaining injury by stone. He proved their medical report Exs. P.33 and 34.
9. Dr. N. K. Goyal (P.W. 5) proved the autopsy report of deceased (Ex. P.27). He found six external injuries on the person of deceased out of which three were stitch wounds on parietal region, frontal region and right eye brow and three abrasions near left-thumb on right thigh and right side of the waist. According to this witness, on internal examination, he found fracture of pari, etal bone, frontal bone and nasal bone of the deceased, damage to membranes and lower lobe of the brain was torn on right parietal region. Deceased suffered from intra cerebral hemorrhage and his mode of death was coma. According to autopsy surgeon deceased died because of head injury. This witness has also deposed that when deceased was admitted in Government Hospital, Neemuch, police submitted application (Ex.P.28) for recording of dying declaration of deceased but deceased Ramsingh was not in a condition to give his statement. He proved document to this effect (Ex. P.28). In cross-examination, defence got proved medical report of appellant Babulal vide Ex.D.3, medical report-of appellant Ramesh S/o Khemraj vide Ex. D/4 and of appellant Rajmal Ex. D.5, He examined all these three appellants on 9-2-1997 i.e. after two days and found one contusion, two abrasions on the person of Babulal, one abrasion on right hand of Ramesh and one abrasion on left knee of appellant Rajmal. According to the medical expert all the injuries sustained by these three appellants were simple in nature and caused by hard and blunt object. Injuries were one to three days old. Looking to the medical evidence of Dr. Pradeep Sharma (RW. 8) and autopsy surgeon Dr. N. K. Goyal (P.W. 5), there is no doubt about homicidal death of deceased Ramsingh and the same has also not been controverted by the defence.
10. In cross-examination of Balwant-Singh (P.W. 2), in paragraph seyen, on behalf of appellant Babulal and Kishanlal, the suggestion was given by the defence that they were not present on the scene of occurrence and it was also suggested to the witnesses that there was complete darkness but no suggestion was given and no defence was put up by the appellants that the appellants could not be identified in such situation by the witnesses. The appellants have examined Pandit Sualal Sharma (JD.W. 1) who testified that on 7-2-1997 in Neemuch, sunset was at J5.50 p.m. and was a day of Amavasya (inter lunar) but this defence evidence is of no avail because according to the prosecution, incident occurred on 7-2-1997 at 6.00 p.m. Therefore, in the month of February, even on the day of Amavasya (inter lunar) at 6,00 there could be sufficient light to see and identify the appellants by the witnesses Who were residents of same village arid well acquainted with each other.
11. We have also given thought over the presence of injuries on the person of three appellants Babulal, .Ramesh S/o Khemraj and Rajmal and are of the opinion that they were examined after two days. They did not state anything about sustaining of injury during the course of incident or caused by the! appellants on the date and time of incident. No suggestion to this effect was given to aforesaid eye-witnesses and none of the appellants had lodged any report in the police station regarding sustaining of these injuries. Therefore, this part of evidence is not at all helpful to the appellants who have pleaded the defence of denial.
12. We have also perused the judgment rendered by Division Bench of this High Court in case of Bhanwarlal and Babukhan (supra). The facts of both the cases are altogether different than the facts in the case in hand. In the case of Bhanwarlal (2004 Cri LJ (MP) 334) (supra), appellant "S and B" initially assaulted deceased by farsi and sword, thereafter other appellants reached on the spot because of which those were not convicted for causing fatal injuries by appellants "S and B". In the present case, all the appellants had come together except appellant No. 5 Kishanlal, all the appellants actively participated in causing injury to deceased and eye-witnesses Balwantsingh (P.W. 2) and Amarsingh (P.W. 3). In the case of Babukhan (2004 Cri LJ 3299) (supra), in paragraph 19 it is held that the common object of the appellants was only to obtain written stamp paper regarding loan amount and they attacked only on Laxminarayan (P.W. 6). Laxminarayan' sustained simple injuries and when he was being beaten for return of stamp paper, his brother deceased Pappu reached on the spot all of a sudden and tried to save Laxminarayan. At that point of time, one of the appellants Abid and one unidentified person caused a knife blow to deceased which proved fatal. On these facts Abid was convicted Under Section 302 of the IPC and rest appellants were convicted Under Sections 323/149 and 148 of the IPC.
13. Supreme Court in case of Bhagwan v. State of Kerala, has dealt in .detail the, question of formation of unlawful assembly Whose common object is to commit a particular crime and in prosecution of the same common object, if the crime is Committed, each and every member of the unlawful assembly would be held responsible for the act done by one, two or all five or more members of unlawful assembly: The Supreme Court has observed that whether all the members of unlawful assembly were having knowledge of common object and shared the same can be gathered from the acts and result of such acts as well as surrounding circumstance. Mere presence of a person without any proof by direct evidence or circumstantial evidence about his knowledge of common object of unlawful assembly and if such person has not taken any part by act or gesture, the said person cannot be convicted with the aid of Section 149 of the IPC. Applying the test laid down by the Apex Court in the case in hand, we are of the opinion that all the appellants came together having sharp edged weapon and lathis respectively in their possession. They surrounded and tried to assault the deceased, deceased ran away to save himself, thereafter they chased him and encircled him in front of the house of Fatesingh where appellants No. 1 Mohansingh and No. 2 Ramesh S/o Khemraj caused injury by deadly weapons like farsi and dharia and appellants No. 3 Rajmal, No. 4 Babulal, No. 6 Ramesh S/o Kalidas and No. 7 Charansingh S/o Rajmal also under their respective weapons for causing injury to eye witnesses Balwantsingh (P.W. 2) and Amarsingh (P.W. 3) who reached to save the deceased whereby all these appellants facilitated appellant No. 1 Mohansingh and No. 2 Ramesh S/o Khemraj to cause injuries to deceased and also did not allow both the injured eye-witnesses to save Ramsingh, The overt act attributed to these appellants except appellant No. 5 Kishanlal and totality of the whole episode coupled with previous enmity between the parties on account of abduction of sister-in-law of deceased Ramsingh by appellant No. 1 Mohansingh, we are constrained to hold that except appellant No. 5 Kishanlal all the appellants were having unlawful assembly whose common object was to commit murder of deceased Ramsingh and in pursuance of the said common object assaulted deceased Ramsingh and to Balwantsingh (P.W. 2) and Amar Singh (P.W. 3) who tried to save him:
14. In the result and as a consequence of the foregoing discussion, we allow this appeal in part. Appeal of appellant No. 5 Kishanlal is allowed. His conviction and sentences on all counts are hereby set aside. He is on bail. His bail bond and surety bond stand cancelled. Fine amount, if any, deposited by the appellant Kishanlal be refund to him. However, appeal of appellants No. 1 Mohansingh, No. 2 Ramesh S/o Khemraj, No. 3 Rajmal, No. 4 Babulal, No. 6 Ramesh S/o Kalidas and No. 7 Charansingh is hereby dismissed. Their conviction and sentence as imposed by the trial Court are affirmed. Appellants No. 3 Rajmal, No. 4 Babulal, No, 6 Ramesh S/o Kalidas and No. 7 Charansingh are on bail. Their counsel are directed to intimate them for surrender before the trial Court on 29th September, 2005 before the trial Court to serve out the remainder part of the sentence. The trial Court, on their surrender, is directed to send them to jail under intimation to this Court.