Madhya Pradesh High Court
Ravendra Prasad Tiwari vs The State Of M.P. on 30 October, 2017
Author: Anurag Shrivastava
Bench: Anurag Shrivastava
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Criminal Appeal Nos. 628 of 2003,
629 of 2003 &
685 of 2003.
Parties Name Ravendra Prasad Tiwari
vs
The State of Madhya Pradesh,
Ganga Prasad Tiwari
vs
The State of Madhya Pradesh,
&
Indrakamal
vs
The State of Madhya Pradesh
Bench Constituted Hon'ble Shri Justice S.K. Gangele &
Hon'ble Shri Justice Anurag Shrivastava
Judgment delivered by Hon'ble Shri Justice S.K. Gangele
Whether approved for Yes/No
reporting
Name of counsels for parties For appellant: Shri S.C. Datt, learned
Senior Advocate assisted by Shri
Siddharth Datt, Advocate in Cr.A.
No.628/2003 and Cr.A. No.629/2003.
Shri Y.P. Sharma, Advocate in Cr.A.
No.685/2003.
For respondent/State: Shri Prakash
Gupta, Panel Lawyer.
Law laid down Significant paragraph numbers (J U D G M E N T) Pronounced on :02.11.2017
1. These three appeals have been filed against a common judgment dated 09.04.2003 passed in Sessions Trial No.81/2002.
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Cr.A. No.628/2003, 629/2003 & 685/2003 Hence, all the appeals are tagged together and heard together. The trial Court held the appellants guilty for commission of offence punishable under Section 302/34 of Indian Penal Code and awarded sentence of life alongwith fine amount Rs.1000/- each.
2. Prosecution case in brief is that on 31.03.2002 at around 2 O'clock in the afternoon, in front of a STD booth, Ravendra Prasad, Ramayan Pathak and Ganga Prasad Tiwari had been abusing the deceased Nageshwar Prasad Gupta. The deceased requested them not to abuse him. At that time, Ravendra Prasad inflicted injury on the deceased by an iron rod and Ramayan Prasad by a danda. Ganga Prasad Tiwari catch hold the deceased. The deceased fell down. When other persons reached on the spot, the accused persons ran away. A report was lodged at the police station initially under Section 294, 323 and 506/34 of IPC. Thereafter, deceased was admitted at District Hospital, Sidhi. He was referred to Gandhi Medical Hospital, Rewa. He died on the way. The police added the offence of 302/34 IPC and conducted investigation. After investigation, charge-sheet was filed. The appellants abjured the guilt and pleaded innocent.
3. It is an admitted fact that a counter case was registered against the complainant party also, as mentioned by the trial Judge in para 20 of the judgment. The police filed charge-sheet
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Cr.A. No.628/2003, 629/2003 & 685/2003 against the complainant party. In the said counter case, appellant Ravendra Prasad Tiwari received injuries on his person.
4. Learned Senior Counsel has contended that the trial Court has committed an error of law in holding the appellants guilty for commission of offence punishable under Section 302/34 of IPC. In the free fight, one of the appellant Ravendra Prasad also received injuries on his person. There was a sudden quarrel and the appellant Ravendra Prasad used his right to private defence. The prosecution concealed the genesis of the crime. Hence, the appellants are liable to be acquitted. Learned Senior Counsel further contended that even if, in alternate, the evidence of prosecution be accepted as it is, then the appellant Ravendra Prasad could be punished for commission of offence punishable under Section 304 Part II of IPC.
5. PW-8 Mahendra Kumar Gupta is the brother of the deceased. He is an eye witness. He deposed that the appellants were abusing the deceased. When the deceased told the accused persons not to abuse him, then appellant Ravendra had inflicted blow of rod and the appellant Ramayan had inflicted a blow on deceased of danda. Another co-accused Ganga Prasad had caught hold the deceased. The deceased fell down on the spot. I and other persons including Mr. Trijesh Kumar Gupta, Dinesh Kumar Gupta, Rakesh Gupta, Pramod Gupta and Bachcha Singh were
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Cr.A. No.628/2003, 629/2003 & 685/2003 present on the spot. We had taken the deceased to the police station in a jeep. He was unconscious. I lodged the report at the police station, which is Ex.P/12. Thereafter, the deceased was taken to District Hospital, Sidhi. He was referred to Jabalpur Hospital. He died on the way. PW-8 further in para 6 of his cross- examination admitted that Ravendra also received injuries and he had seen the injury on his head. He further said that there was a scuffle between the deceased and Ravendra, due to which Ravendra may had received the injuries. He admitted the fact that Ravendra lodged a report against him and other persons and a criminal case was registered against them, in his cross- examination.
6. PW-9 Vyas Prasad is another eye witness. He is also the brother of the deceased. He deposed the same facts as deposed by PW-8 that the accused persons had been abusing the deceased and when the deceased requested the accused persons not to abuse him, they had inflicted injuries on him. Ravendra had inflicted blow of rod on the head of the deceased and Ramayan Prasad had inflicted blow of lathi. Thereafter, the deceased fell down and other persons reached on the spot. He admitted in his cross- examination that Ravendra had received injuries.
7. PW-7 Rakesh Kumar Gupta, who had a small shop of betel, deposed that accused persons had been abusing the
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Cr.A. No.628/2003, 629/2003 & 685/2003 deceased. Ravendra had inflicted blow of rod on the deceased and Ramayan and Ganga had inflicted blow by lathi and danda. He fell down. Same facts have been deposed by PW-6 Dinesh Kumar Gupta.
8. PW-1 Trijesh Kumar is also an eye witness. He deposed that he was present on the spot. At around 2 O'clock accused persons had been abusing the deceased and Ramayan had inflicted a blow of danda and Ravendra of rod on the person of the deceased. Deceased fell down and thereafter, he was taken to Sidhi. He further deposed that he had signed the panchnama of dead body of the deceased, which is Ex.P-2, Nanksha Mauka Ex.P-3 and seizure memo Ex.P-4 by which plain earth and red earth was seized from the spot.
9. PW-2 Sheetal Prasad Gupta is the witness of seizure of the rod. He deposed that on the memorandum Ex.P-6 of Ravendra, a rod was seized from the house of Ravendra vide seizure memo Ex.P-7 and he signed the same.
10. PW-3 Dr. Sandeep Bhalla deposed that on 31.03.2002 I was posted at District Hospital, Sidhi as Emergency Medical Officer. On that day, I had examined deceased Nageshwar and noticed following injuries on his person:
I. One lacerated wound on left parietal bone 12cm x 1cm x bone deep.
II. One swelling 8cm x 4 cm on the left eye.
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Cr.A. No.628/2003, 629/2003 & 685/2003 III. There was blood in the right ear and he was in unconscious condition.
11. PW-4 Dr. B.K. Prajapati deposed that I was posted as Medical Officer at District Hospital, Sidhi and I performed postmortem of the deceased. I noticed following injuries on the person of the body of the deceased:
I. Contusion 2 cm x 3 cm on right shoulder.
II. Swelling injury on right hand.
III. Another swelling on the right palm.
IV. One hematoma 12 x 16 cm on the head.
On internal examination, there was one horizontal fracture and one vertical fracture on the head of the deceased. The brain of the deceased was injured. The deceased died due to the injuries sustained by him on the head. Injuries were caused by the hard and blunt object. Death of the deceased was homicidal in nature.
12. PW-11 U.N.S. Parihar is the Investigating Officer. He deposed that I was posted as Station House Officer Incharge at Police Station Jiyawan (Devsar). A merg was recorded, which is Ex.P-16 and I signed the same. Thereafter, I conducted investigation of the case and recorded statements of witnesses Tulsidas Gupta, Gaya Prasad Gupta and Rohini Prasad Gupta on 04.04.2002 and Vyas Prasad, Rakesh Gupta and Ramesh Gupta on 07.04.2002. On the memorandum of Ganga Prasad Ex.P17, a danda was seized vide seizure memo Ex.P-18 and I signed both
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Cr.A. No.628/2003, 629/2003 & 685/2003 the documents. Accused Ganga Prasad was arrested. Arrest memo is Ex.P-18 and I signed the same. Similarly, on the memorandum of Ravendra Ex.P-6, a rod was seized vide seizure memo Ex.P-7 and I signed both the documents. Ravendra was arrested. I seized plain earth and red earth from the spot vide Ex.P-22. In para 12 of his cross-examination, he admitted the fact that a counter case was also registered at the police station and the charge-sheet was filed before the Court.
13. PW-13 Raj Rakhan Choubey deposed that on 31.03.2002, he was posted as Head Constable at the police station and a report was lodged on the aforesaid date, which is Ex.P-2 and he signed the same.
14. The appellants examined two witnesses in their defence.
DW-1 Ishwardeen deposed that he was present on the spot and there was quarrel between the appellant Ravendra and the deceased. Thereafter, Ravendra lodged a report at the police station and a criminal case was registered against the complainant party. DW-2 Ishwari Prasad Dubey deposed that he was present at the place of incident. There was a quarrel between Ravendra and the deceased. The deceased had taken out a rod from his house and both were quarreling.
15. The prosecution witnesses deposed that the appellants had been abusing the deceased and when the deceased objected about
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Cr.A. No.628/2003, 629/2003 & 685/2003 the same, the appellants inflicted injuries on the person of the deceased. The prosecution witnesses including PW-8, PW-9 and other eye witnesses deposed that appellant Ravendra inflicted blow on the head of the deceased by iron rod and Ramayan inflicted blow by lathi. Appellant Ganga Prasad catch hold the deceased. PW-8 Mahendra Kumar Gupta, who is the brother of the deceased, admitted in his evidence that appellant Ravendra also received injuries. He was present on the spot. He further deposed that there was a scuffle between the deceased and Ravendra. A counter case was registered against him and other accused persons. Another eye witness PW-7 Rakesh Kumar Gupta deposed that a counter case was registered against the complainant party also. The Investigating Officer also admitted the same fact in his evidence. A certified copy of the evidence of Dr. K.P. Gupta, who was examined in the counter case, which was registered at S.T. No.158/2002, was filed before the trial Court. He deposed that on 31.03.2002, he was posted as Medical Officer at District Hospital, Sidhi and he had examined Ganga Prasad Tiwari s/o Lakheshwari and Ravendra Prasad Tiwari s/o Thakur Prasad Tiwari. He noticed following injuries on their person:
"eSa fnukad 31@3@2002 dks ftyk fpfdRlky; lh/kh esa fpfdRlk vf/kdkjh ds in ij inLFk FkkA Fkkuk izHkkjh ds vkosnu izkIr gksus ij eSaus f'ko dj.k tk;loky ua0 236 }kjk Jh xaxk izlkn frokjh mez&24 o"kZ yk[ks'ojh xzke cgsjk dk ijh{k.k fd;k Fkk vkSj fuEu pksVsa ik;k Fkk&
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Cr.A. No.628/2003, 629/2003 & 685/2003 pksV dz01%& 8 x<kbZ ls0eh0 vkdkj dk yEck yky fu'kku] ckbZ Hkqtk esa ?kqVus ds ikl Fkk] tks fdlh dMS o ckSFkys vkStkj ls igaqpk;k x;k FkkA lk/kkj.k fdLe dh pksV Fkh] ijh{k.k ls 4 ls 6 ? kaVs ds vanj dh FkhA jksxh dks vLirky esa bykt gsrq HkrhZ dj fy;k x;k FkkA
---blh fnu eSaus jkosnz izlkn frokjh mez&27 o"kZ] firk Bkdqj izlkn frokjh xzke cgsjk dk ijh{k.k fd;k Fkk vkSj fuEu pksVsa ik;k Fkk%& pksV dz0&1 %& fljsa esa ckbZ rjQ 8 xMs< xvk/kklseh vkdkj dk yslhjsVsM ?kko Fkk ftlesa jDr tek gqvk FkkA pksV dz0&2 %& yky lwtunkj pksV 4 x4 lseh vkdkj dh ck, ? kqVus esa FkhA pksV dz0&3 %& 6 x2 lseh vkdkj dk yEck yky fu'kku ck, iSj esa pksV dz0&4 %& ihB esa ckbZ rjQ 4 x2 lseh vkdkj dk yEck yky fu'kkuA"
16. Dr. K.P. Gupta was not examined independently neither called by the defence in the present case. The trial Judge in the judgment under challenge has mentioned the fact that the injuries were sustained by appellant Ravendra Prasad. However, the evidence of Dr. Gupta could not be accepted in the present case because he was not called as a witness, neither the MLC report was exhibited in the present appeals. But, from the evidence of PW-8, PW-7, other eye witnesses and the I.O., it is an admitted fact that a counter case was registered against the complainant party and accused-appellants Ravendra and Ganga Prasad Tiwari received injuries on their person. This fact discredited the evidence of the eye witnesses that all the accused persons were abusing the deceased and Ravendra and Ramayan had inflicted injuries on the person of the deceased. In our opinion, if the fact
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Cr.A. No.628/2003, 629/2003 & 685/2003 as mentioned above, be taken in consideration, then it appears that there was a scuffle between the deceased and some persons had beaten the appellant Ravendra also. Thereafter, Ravendra had inflicted blow of iron rod on the person of the deceased as deposed by the eye witnesses and Ramayan Prasad had inflicted blow of lathi.
17. Now, the question is that what offence could be made out against the accused persons. The Apex Court in the case of Madhavan and others vs The State of Tamil Nadu, JT 2017 (8) SC 38 has held as under when there was a free fight between the parties:
"10. Considering the above and keeping in mind the facts of the present case, the nature of the crime, subsequent conduct of the appellants, the nature of weapon used and all other attending circumstances and the relevant facts including that no subsequent untoward incident has been reported against the appellants and the mitigating circumstances, we are inclined to modify the sentence period in the following terms:
a) The sentence period awarded to appellant nos. 2 and 4 for offences punishable under Sections 147 and 334 respectively of IPC will stand reduced to period already undergone without disturbing the fine amount specified by the Trial Court and affirmed by the High Court.
b) The sentence period awarded to appellant nos. 1, 3 and 5 for offences punishable under Sections 304 part (2) r/w 149 and 304 part (2) of IPC respectively will stand reduced to five years each without disturbing the fine amount awarded by the Trial Court and affirmed by the High Court."
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Cr.A. No.628/2003, 629/2003 & 685/2003
18. The Hon'ble Apex Court further in the case of Litta Singh and Another vs State of Rajasthan, (2015) 15 SCC 327 has held as under in regard to culpable homicide not amounting to murder:
"24. It is well settled proposition of law that the intention to cause death with the knowledge that the death will probably be caused, is very important consideration for coming to the conclusion that death is indeed a murder with intention to cause death or the knowledge that death will probably be caused. From the testimonies of the witnesses, it does not reveal that the accused persons intended to cause death and with that intention they started inflicting injuries on the body of the deceased. Even more important aspect is that while they were beating the deceased the witnesses reached the place and shouted whereupon the accused persons immediately ran away instead of inflicting more injuries with intent to kill the deceased.
25. In the case of Gurdip Singh & Anr. vs. State of Punjab, (1987) 2 SCC 14, this Court came across a similar type of incident, where the prosecution case was that one Maya Bai had two sons and two brothers. She was the mother of accused Nos. 1 and 2 and sister of accused Nos. 3 and 4. The deceased was one Kishore Singh. The accused suspected that Mayabai had illicit relations with the deceased. Hence one day when the deceased was returning from village and when he reached the field of Kashmiri Lal, the accused came out of the wheat field. The first appellant had a kirpan and the second appellant had kappa. It was alleged that the four accused took deceased on wheat field and threw him on the ground. One of the acquitted accused Jit Singh caught hold of arms of the deceased and the two appellants caused injuries with the weapons in their hands. There was an alarm created by Lachhman Singh, PW-3, which had attracted PW-4 and Mohinder Singh. When they reached the spot, the accused ran away with their weapons. The deceased had seven injuries on his body. Injury No.7 was fatal according to the doctor, who examined him. It was argued that the prosecution had not come forward
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Cr.A. No.628/2003, 629/2003 & 685/2003 with true case as to how the incident happened. The trial Judge found two accused Jit Singh and Teja Singh not guilty, since the case against them was not proved beyond the reasonable doubt. The appellants were convicted because they had weapons with them unlike the acquitted accused. This Court on consideration of the entire evidence did not interfere with the findings that the appellants were responsible for the death of the deceased by attacking him with the weapons in their hands, but on reappraisal of the entire evidence, the Court found it difficult to agree with the trial court that the appellants were guilty of the offence under Section 302 IPC. Hence, converting the offence under Section 304 Part I, this Court observed:-
"6. The trial Judge was not wholly justified in observing that there was no evidence about the so-called illicit relationship between Maya Bai and Kishore Singh, the deceased. The materials available create considerable doubt in our mind as to whether the appellants really intended to kill Kishore Singh or whether his misconduct pushed them to wreak revenge against the deceased and in this pursuit attacked him. We are not unmindful of the fact that the 7th injury noted in the post- mortem certificate is in the ordinary course sufficient to cause the death of the deceased. But we are not fully satisfied that the appellants intended to kill the deceased.
The correct approach on the evidence and other circumstances in this case, would according to us, be to find the accused guilty under Section 304 Part I, and to sentence them under that section."
26. After analyzing the entire evidence, it is evidently clear that the occurrence took place suddenly and there was no premeditation on the part of the appellants. There is no evidence that the appellants made special preparation for assaulting the deceased with the intent to kill him. There is no dispute that the appellants assaulted deceased in such a manner that the deceased suffered grievous injuries which was sufficient to cause death, but we are convinced that the injury was not intended by the appellants to kill the deceased."
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Cr.A. No.628/2003, 629/2003 & 685/2003
19. It is not necessary to consider other case laws on this point. After analyzing the entire evidence, it is clear that there was a scuffle between the deceased and appellant-Ravendra.
There was no premeditation of the appellants to kill the deceased. In that scuffle, appellant Ravendra also received injuries and he had inflicted blow by the iron rod on the head of the deceased, due to which, the deceased died. There was no intention on behalf of the appellant Ravendra to kill the deceased. Hence, the offence attributed by the appellant Ravendra is punishable under Section 304 Part II of IPC and he is liable to be convicted for commission of offence punishable under Section 304 Part II and a sentence of RI five years. There is no role of other two appellants Ganga Prasad Tiwari and Indrakamal. It is alleged that Ganga Prasad Tiwari had caught hold the deceased and Indrakamal was standing at the place of incident at the time of incident. There is no act mentioned in the FIR against Indrakamal. It is simply mentioned that Indrakamal was standing on the spot. Hence, in our opinion, the trial Court has committed an error of law in convicting the appellants Ganga Prasad Tiwari and Indrakamal for commission of offence with the aid of Section 34 of IPC. Consequently, appellants Ganga Prasad Tiwari and Indrakamal are acquitted from the offence.
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Cr.A. No.628/2003, 629/2003 & 685/2003
20. In this view of the matter, Criminal Appeal No.628/2003 (Ravendra Prasad Tiwari vs The State of M.P.) is partly allowed.
His conviction and sentence awarded by the trial Court for commission of offence punishable under Section 302/34 of IPC is set aside. He is convicted for commission of offence punishable under Section 304 Part II of IPC and awarded a sentence of RI five years. He is on bail. He shall surrender before the trial Court to undergo the remaining part of the sentence. The Criminal Appeal No.629/2003 (Ganga Prasad Tiwari vs The State of M.P.) and Criminal Appeal No.685/2003 (Indrakamal vs The State of M.P.) are hereby allowed. Their conviction and sentence for commission of offence punishable under Section 302/34 of IPC is hereby set aside. They are on bail. Their bail bonds are discharged.
21. Appellant Ravendra Prasad Tiwari would be eligible to get the benefit of set off against the period of sentence undergone earlier, under Section 428 of Cr.P.C.
(S.K. Gangele) (Anurag Shrivastava)
Judge Judge
vkt
VINOD KUMAR TIWARI
2017.11.06 12:53:11 +05'30'