Madhya Pradesh High Court
Babu @ Rambabu & Ors. vs State Of M.P. on 21 March, 2022
Author: Vivek Agarwal
Bench: Vivek Agarwal
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
ON THE 23rd OF MARCH, 2022
CRIMINAL APPEAL No. 2390 of 1998
Between:-
BABU @ RAMBABU
1.
AGED ABOUT 23 YEARS, (MADHYA PRADESH)
RAJENDRA PRASAD
2.
S/O VIRANLAL VILLAGE KHUJUHA (MADHYA PRADESH)
BHANDARI @ RAM NIWAS
3.
S/O RAMASHARYA VILLAGE KHUJUHA (MADHYA PRADESH)
RAM NARESH
4.
S/O RAMASHARYA CHOURSIA, VILLAGE KHUJUHA (MADHYA PRADESH)
NIBBU @ NAGENDRA
5.
S/O VIRAN VILLAGE KHUJUHA (MADHYA PRADESH)
.....APPELLANT
(BY MS. TANVI KHARE, AMICUS CURIAE )
AND
STATE OF M.P. (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AJAYRAM TAMRAKAR, PL FOR STATE )
JUDGMENT
(23/03/2022) This appeal is filed by appellant no.1/Babu @ Rambabu, appellant no.2/Rajendra Prasad, appellant no.3/Bhandari @ Ram Niwas, appellant no.4/Ram Naresh and appellant no.5/Nibbu @ Nagendra being aggrieved of judgment dated 14/10/1998 passed by 5th Additional Sessions Judge, Rewa in S.T No. 135/1996 convicting each of the accused/appellant under section 147 IPC with R.I for one year, under section 148 IPC with R.I for 2 years and under section 307/149 IPC with R.I for 5 years and fine of Rs.500/- each accused/appellant and in default R.I for one month. All sentences to Signature SAN Not Verified Digitally signed by TARUN KUMAR SALUNKE Date: 2022.04.04 17:11:17 IST 2 run concurrently.
2. Learned counsel for the appellants submit that appellants are innocent. They have been falsely convicted of causing injuries to Hanumandas (PW-4) and Surendra Prasad (PW-5). Injured Hanumandas (PW-4) and one Ramsajeevan were the aggressors. It is submitted that there is plithora of evidence to demonstrate that it was Surendra Prasad (PW-5), who had in fact caused injuries to appellant no.1/Babu @ Rambabu. On the date of incident, PW-5 had forcibly entered into house of Babu @ Rambabu and had carried out marpeet with his mother (Chotagi), son Ramsharey and wife Gendwali.
3. It is submitted that one Suryabali is father-in-law of Surendra (PW-5) against whom some accused persons have filed a case before the Labour Court to the effect that Suryabali is engaging various labourers for the purpose of manufacturing of beedi but was not paying wages to them. It is submitted that all the prosecution witnesses are related to Suryabali. It is submitted that appellant no.1/Babu @ Rambabu, appellant no.3/Bhandari @ Ram Niwas and appellant no.4/Ramnaresh are real brothers, whereas appellant no.2/Rajendra Prasad and appellant no.5/Nibbu @ Nagendra are also real brothers. They all are related to each other, therefore, they have been falsely implicated.
3. It is submitted that no case under section 307 IPC is made out inasmuch as Dr. V.S Satnami (PW-8) has admitted in his cross 3 examination that all the injuries were on the lower limbs and were not dangerous to life. Similarly, Dr. S.C Sinha (PW- 13) has opined that Surendra Prasad Chourasiya (PW-5) was admitted to GMH hospital Rewa, where he found that all injuries sustained were simple in nature.
4. It is submitted that no case under sections 307, 147, 148, 149 IPC is made out against the appellants. They have been falsely implicated. Reliance is placed on the judgment of the Supreme Court in case of Basayya Prabhayya Hallur Vs. State of Karnataka (2009) 17 SCC 55, wherein considering lapse of several years, instead of sending accused to jail to serve remaining jail sentence, their sentence was reduced to period already undergone with fine of Rs.25,000/- each to be paid to wife of the deceased. Reliance is also placed on the judgment of the Supreme Court in Neelam Bahal & another Vs. State of Uttarakhand 2010 (2) SCC 229, where giving benefit of doubt as to whether accused while inflicting two knife injuries, on chest and shoulder deliberately caused simple or grievous injuries, and taking into consideration a fact that injured remained in hospital for 15 days, conviction under section 307 of IPC was converted into section 326 IPC simpliciter and considering a fact that accused having undergone one year's imprisonment in 1987 (when he was 25 years old), his sentence was reduced to period already undergone.
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5. In the light of aforesaid judgments, it is prayed that the appellants conviction under section 307 IPC be converted into section 324 IPC. It is further submitted that all accused/appellants had already deposited the fine amount. Appellant no.1/Ram @ Rambabu and appellant no.2/Rajendra Prasad, were in custody from 07/07/1995 to 12/07/1995. Whereas as per certificate under section 428 Cr.P.C, appellant no.3/Bhandari @ Ramniwas, appellant no.4/Ramnaresh and appellant no.5/Nibbu @ Nagendra had not undergone any sentence during the trial. Trial court delivered it's judgment on 14/10/1998. Appellants' sentence was suspended by a coordinate Bench on 08/12/1998. Thus, accused persons/appellants remained in custody for about 2 months post conviction.
6. Learned Panel Lawyer for State opposes the prayer and submits that Hanumandas (PW-4) and Surendra Prasad Chourasiya (PW-5) are injured eye witnesses. Their testimony is duly corroborated by Dr. V.S Satnami (PW-8) and Dr. S.C Sinha (PW-13), therefore there is no justification in showing any leniency, appellants be directed to undergo remaining jail sentence.
7. After hearing learned counsel for the parties and going through the record, it is evident that Suryabali (PW-2) has admitted in his cross examination that accused had an old enmity with his son- in-law Surendra Chourasiya over business of beetal leafs. He admitted in para 11 of his cross examination that his son-in-law Surendra Chourasiya had purchased certain commodities 1-2 months 5 prior to the incident. There was dispute of payment of billed amount. In para 13, this witness has admitted that Ramniwas had filed Case No. 12/IDA/92 before the Labour Court against him and his elder brother. This witness Suryabali (PW-2) further admitted that Ramniwas, alleged that Suryabali collects money from the company but does not pay to the labourers. In para 15 this witness mentioned that he was inside his house on the date of the incident and after hearing cries for help, when he reached the spot accused had ran away. Thus, it is evident that Suryabali (PW-2) is not an eyewitness and he had not seen as to which of the accused had beaten, which of the injured with which of the weapon.
8. Hanumandas (PW-4) has admitted that his father is involved in the manufacture of beedi on commission. This witness admitted that some of the accused persons filed a case before the Labour Court. This witness admitted in para 10 of his cross examination that he had not seen as to which of the accused were armed with which of the weapon and he had not given any statement in this regard to the police. In para 14 this witness admitted that he was admitted in hospital on 18/05/1995 and discharged on 20/05/1995. In para 15 of his cross examination, this witness has admitted that a case of beating accused/Bhandari @ Ram Niwas's mother, father and wife is pending before the JMFC, Rewa and next date of hearing in that case was 24/07/1998.
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9. Surendra Prasad Chourasiya (PW-5) admitted that a case against him and his brother-in-law Hanuman Prasad and Hariram for the incident which took place on the same day is pending before the competent court. This witness admitted that witness Babulal is his chachiya sasur.
10. Babulal (PW-6) has admitted that if he had not shown presence of Hariram in his case diary statements Ex.D-3, he cannot give reasons for such omission. A perusal of Ex.D-3, which is statement of Baburam, it is evident that PW-6 has not made any mention of presence of Hariram. It has come on record in para 6 that PW-6 admitted that Suryabali is his relative. In para 7 PW-6 admitted that prior to the place of incident, houses of Ramashray, Ramdas, Savitri, Mahavir are located. House of Munnulal Chourasiya is also there and incident had taken place in north of house of Munnulal. He admitted that house of accused/Ramnaresh is at a close distance, from the place of incidence. In para 13 this witness admitted that his younger brother Chotelal is contesting a case against the accused in relation to property at Rewa.
11. Hariram (PW-7) admitted in his cross examination that he had not informed the police in his case diary statement Ex.D-4 that some of the accused were armed with ballam. PW-7 admitted that there was no old enmity with the accused and the complainant. He admitted that he had taken injured to Rewa hospital and outside boundary of the hospital, there is a police chowki. PW-7 admitted that 7 Babulal is his uncle and Suryabali is his grand father. He has admitted that a civil case is pending against accused/Bhandari's father of Ramashray. He admitted that a case of beating mother, father and wife of accused/Bhandari on 17/05/1995 is pending against him, Hanuman and Surendra in the court of JMFC, Rewa.
12. Dr.V.S Satnami (PW-8) who had given first treatment to the injured noted following injuries on the body of injured Hanumdas (PW-4) :-
चोट क.-1 दाहहने पैर पर कटा हुआ 4 x 1 x 5 से. मी. हजसमे खनू आ रहा था चोट क. 2 दाहहने पैर पर एक कटी हुई 1x .5 x.2 हजंसमे लाल रंग का खनू का थाकका बढा हुआ था चोट क. 3 बाए हाथ पर लाल सजू नदार चोट, 10 x 6 से. मी आकार की चोट क. -4 बाए फोर आमर पर लाल सजू नदार चोट 15 x 6 से. मी. के आकर की चोट क. -5 दाहहने नाडी पर लाल सजू नदार चोट 10 x 4 से. मी. की चोट क -6 हसर मे सामने की तरफ लाल सजू नदार चोट 5 x 3 से. मी. के आकर की हजसके बीच मे खरोचदार चोट थी हजसका आकार 1 x .5 से. मी. का था हजसमे लाल रंग का खनू थाकका लगा हुआ था 3// पहली ओर दसू री चोट धारदार दारा पहुचई थी चोटे कीमंक 3 से 6 चोटे कडे ओर भोथले औजार दारा पहुचई गई थी सभी चोटो का समये लगभग 12 घटं े का था चोटो की पकहत गंभीर जैसी लगती थी
13. Similarly, he found 7 injuries on the body of injured Surendra Prasad Chourasiya, which reads as under:-
चोट क. -1 दाहहने पैर पर कटी हुई चोट लाल रंग का खनू का थकका लगा हुआ 3 x 1 x .5 से. मी के आकार की थी चोट क. -2 कटी हुई सटेप चोट बाए पैर पर 3 x 2 x 4 से. मी के आकार की हजसमे खनू बह रहा था 8 चोट क. 3- दाहहने सीने मे आगे की तरफ लाल सजू नदार चोट 10 x 4 से. मी. की तथा सीने बाए तरफ आगे की तरफ लाल सजू नदार चोट 8 x 3 से. मी की चोट क. 5- दाहहने जाँघ पर लाल सजू नदार चोट 15 x 4 से. मी की चोट क. 6 बाए हाथ की इडं ेकस हफंगर मे फटी हुई चोट 1 x .5 x .2 से. मी हजसमे लाल रंग का खनू का थकका जमा हुआ था चोट क. 7 पीठ के पीछे दाहहने तरफ लाल सजू नदार चोट 8 x 2 से. मी. के आकार की
14. Dr.V.S Satnami (PW-8) opined that injury no.1 and 2 on PW-4 Hanuman were caused by a sharp object, whereas injury no.3 to 6 were caused by hard and blunt object. Injuries of the injured appeared to be serious.
15. This witness PW-8 further admits that injury no.2 caused to Surendra Prasad Chourasiya was caused by sharp object, whereas remaining injuries were caused by hard and blunt object.
16. In para 9 of his cross examination PW-8 admitted that as per Ex.P-6 in (injury report of Hanumandas) since no fracture was detected, therefore all the injuries were simple in nature. Similarly injuries relating to Surendra Prasad Chourasiya as mentioned in Ex.P- 7 were simple in nature as there was no injury to any major blood vessels causing continued blood loss. This witness admitted that there was no internal injury to the organs like brain, liver, kidney etc. 9
17. Ramashankar Chourasiya (PW-10) turned hostile. Smt. Savitri (PW-11) also turned hostile. Dr. S C Sinha (PW-13) admitted in his cross examination that no operation was performed on Surendra Prasad Chourasiya. He admits that all injuries as per Ex.P-14 were simple in nature.
18. Defence examined Smt.Chohgi (DW-1), who categorically deposed that Surendra, Hanuman, Ramsajeevan and Harilal had forcibly entered in her house asking for her sons. When she informed that sons are not at home then they started beating her with lathi and danda causing injuries on her back, waist etc. They had also beaten her daughter-in-law. On her cries villagers had reached there and had thrown aggressors out.
19. Similarly Ramasharya Chourasia (DW-2) admitted that his wife, daughter-in-law, etc were beaten by the complainant party and his wife was taken to Rewa hospital. Discharge card is Ex.D-6. According to which DW-1 was admitted in hospital. Lacerated wound was present over left lateral aspect of lower part of upper arm with history of assault over the back region showing swelling and tenderness present over several regions. Query was sent for fracture. Injury no.2 was termed to be grievous in nature. M.K Tiwari (DW-3) had treated Chohgi, wife of Ramniwas Chourasiya, supported the injuries of Chohgi.
20. It is evident that none of the injuries sustained by PW-4 and PW-5 were on any of the vital parts of the body so to constitute 10 an offence under section 307 IPC and as per Dr. V.S Satnami (PW-8) and Dr.S.C Sinha (PW-13) none of the injuries sustained by Hanuman Prasad (PW-4) or Surendra Prasad (PW-5) were such that they would have been sufficient to cause their death.
21. Prosecution has failed to prove intention to commit culpable homicide as all injuries were on the lower part of their body. There was no attack on the vital part of the body to demonstrate as to their acts will fall within ambit of section 307 IPC. Three considerations appears to be essential namely nature of act done, the intention or knowledge of the agent and circumstance under which the act is done. Without the ingredient of knowledge or intention there cannot be any offence of attempt to murder. A great amount of care is to be taken to differentiate between offence under section 307 IPC and other like under sections 324, 325, 326 etc. If the intention or necessary knowledge to cause death as envisaged under section 307 IPC which defines murder is there then it is immaterial whether or not any hurt was caused to victim by the accused. In the present case, however ingredient of section 300 IPC are not available. It is apparent that there was no formation of any unlawful assembly by accused persons.
22. In case of Madanlal Vs. State of U.P, 1990 Cr.LJ 310 (H.P), it is held that when injuries inflicted are not imminently dangerous to life and injuries are simple in nature, then conviction 11 under section 307 IPC is liable to be converted to one under section 324 IPC. In the present case facts are identical. 12
23. Taking into consideration a fact that evidence of PW-8 and PW-13 reveals that injuries were simple in nature. It has come on record that incident took place close to the house of accused persons when victims Hanuman Prasad, Surendra Chourasiya and their accomplice had attacked mother, father and also wife of Ramnaresh. Thus allegation of rioting and formation of unlawful assembly are not made out. It is evident and accepted by PW-4, PW-5 and PW-7, that victims had beaten father, mother and wife of Ramnaresh. Spot Map Ex.P-1 reveals that incident took place close to spot marked as "X". It has come on record and accepted by PW-6 that house of Ramashray, Ramadas, Bebal, Savatri is close to the house of Munnulal Chourasiya. PW-6 also admitted that house of Ramnaresh is at a close distance. Thus, when evidence of PW-6 is read with PW-7, who has admitted in para 11 of his cross examination that on 17/05/1995 in the evening victims had beaten mother, father and wife of accused for which a case is pending against PW-7, Hamnuman and Surendra in the court of JMFC, Rewa and FIR Ex.P-12 is perused then it is evident that incident which took place on 17/05/1995 at 5 PM for which FIR was lodged on 24/05/1995, whereas Police Chowki is available in the hospital campus itself, as has been admitted by PW-7, the close proximity of the events which took place whereby the parents and wife of one of the accused/Ramnaresh were beaten and then accused/appellants have caused injuries to Hanuman (PW-4) and Surendra Prasad (PW-5) there cannot be said to be any unlawful 13 assembly in terms of the provisions contained in section 141 IPC, for which it is necessary to demonstrate that their object was to overawe by criminal force, or to resist the execution of any law, or of any legal process; or to commit criminal trespass, or other offence; or by means of criminal force, or show of criminal force, or to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or other incorporeal right of which he is in possession, or to enforce any right or supposed right.
24. Similarly the elements of rioting as defined under section 146 IPC are also not made out so as to constitute offence under sections 147,148 or 149 IPC.
25. Thus, in the light of the discussion made hereinabove, when offence under section 307 is not made out, then it is a case under section 324 IPC. Accordingly conviction of the appellants under section 147, 148, 307/149 IPC being not sustainable in the eyes of law is set aside instead appellants are convicted under section 324 IPC.
26. Incident took place in the year 1995, this appeal is pending since 1998 and therefore at this distance of 27 years of time, I am of the opinion that since appellants have already undergone incarceration for a period of 2 months and have already deposited fine of Rs.500/- The appellants are sentenced to the period they have already undergone but invoking provisions of Section 357(3) of Cr.P.C., this Court deems it appropriate that Hanuman (PW- 14
4) and Surendra Prasad (PW-5) injured be compensated and, accordingly, directs the appellants to jointly and severally pay a sum of Rs.5000/- (Rupees Five thousand) as compensation within 90 days of communication of this order, failing which learned Sessions Judge Rewa will be obliged to recover the aforesaid amount from the appellants in accordance with law, which will meets the ends of justice. Since the appellants are on bail, their bail bonds are hereby discharged.
27. On production of copy of this judgment, learned amicus curiae will be entitled for grant of remuneration. Record the trial court be sent back.
28. In the above terms, the appeal is disposed of.
(Vivek Agarwal) Judge tarun/