Madhya Pradesh High Court
Sewaram & Ors. vs The State Of M.P. on 12 November, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:55819
1 CRA-940-2000
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 12th OF NOVEMBER, 2024
CRIMINAL APPEAL No. 940 of 2000
SEWARAM & ORS. AND OTHERS
Versus
THE STATE OF M.P.
Appearance:
Shri Siddharth Datt, Advocate for appellants.
Shri Manas Mani Verma, Public Prosecutor for the respondent - State.
JUDGMENT
Per: Justice Vivek Agarwal This appeal is filed on behalf of the convicted accused persons, being aggrieved of the judgment dated 24.03.2000, passed by learned VIII Additional Sessions Judge, Jabalpur (M.P.), in S.T.No.511/1996, convicting the appellants under Section 148 IPC for which they are sentenced to R.I. for one year each, Section 302/149 IPC, they are sentenced to R.I. for life and Section 323 IPC, they are sentenced to undergo R.I. for three months each, with default stipulations, respectively. All substantive sentences to run concurrently.
2. Learned counsel for appellants submits that deceased is Jumman Patel. Incident took place on 30.06.1995. It is submitted that during the pendency of the appeal, Sonelal S/o Shankerlal, Badri Prasad S/o Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 14-11-2024 19:44:45 NEUTRAL CITATION NO. 2024:MPHC-JBP:55819 2 CRA-940-2000 Shankerlal and Shashikant S/o Sevaram died and, therefore, appeal stands abated qua them. Copy of death certificate of Badri Prasad is brought on record showing his death on 29.03.2024.
3. The prosecution case in short is that on 30.06.1995, at Village Birua, in relation to a 'Nali' (drainage), Munna Patel had an altercation. On 01.07.1995 at about 06:00, at Village Birua, close to the sit-out (Dahiya) of Shumbha Thakur, Jumman Patel was beaten by accused Budhraj Singh, sonelal, Sevaram, Ramcharan, Badri, Shashikant, Santosh and Makhan after surrounding him. Sevaram was armed with 'Ballam', Badri Prasad with 'Farsa' and remaining accused persons were armed with lathis. Allegation is that Sevaram had caused injury on head of Jumman with a 'Ballam', whereas, other acused persons had beaten Jumman with lathis and Farsa. As a result of which, Jumman had fallen down. On raising of an alarm, Chhekodilal (PW/2), Munnalal Patel (PW/5), Benee Patel (PW/8) and Ramsewak (PW/3), had gone to rescue Jumman. They too sustained injuries.
4. Report of the incident was lodged at Police Station Katangi by Chhekodilal (PW/2). Jumman, Munnalal Patel (PW/5), Ramsewak (PW/3) and Chhakodilal (PW/2) were medically examined. Jumman sustained grievous injuries, therefore, in semi-conscious state, he was admitted in hospital. On account of semi-conscious state, though police tried to obtain dying declaration of Jumman, but that could not be taken and Jumman on account of such injuries died on 10.07.1995. MLC was Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 14-11-2024 19:44:45 NEUTRAL CITATION NO. 2024:MPHC-JBP:55819 3 CRA-940-2000 prepared by Dr. Anil Kumar Deekar (PW/10) and postmortem was conducted by Dr. D.K. Sakalle (PW/13).
5. It is submitted that in fact, the prosecution case is one sided. As per the spot map Ex.P/22, house of the appellants is on a lower altitude, whereas, house of the complainant party is on higher altitude. Dispute was in regard to drainage of water from the house of complainants to the 'Nali'. In fact, on 01.07.1995, present set of appellants represented by Chhiddilal S/o Budhraj Patel, had recorded case Crime No.121/1995, against complainants of this case under Sections 147, 148, 149, 307 IPC, where, Munna Patel, Ramsewak Patel @ Guthal, Benee Patel, Chhekodi Patel, Gilani Patel, Wakeel Patel and Ballu Patel are the accused persons. In this FIR Ex.D5(C), it is clearly mentioned that the informant was sleeping in his house when mother of Shashikant raised an alarm that Babbu was being beaten. Then, he had gone to the place of the incident and seen Munna Patel armed with 'Farsa', Benee Patel armed with Farsa, Guthal @ Ramsewak Pradhan, Chhikodi, Gilani, Wakeel, Ballu were armed with lathis and Farsa in relation to the dispute over 'Nali', on which a compromise was already entered into in the village, were beating his father and trying to kill him. His father Budhraj became unconscious, when villagers Ramcharan Patel, Sonelal, Santosh, Makhan Patel and the author of the FIR, namely, Chhiddilal had gone to save his father, when Ramcharan, Sonelal, Santosh and Makhan were also beaten causing injuries in their head and leg. Incident was seen by Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 14-11-2024 19:44:45 NEUTRAL CITATION NO. 2024:MPHC-JBP:55819 4 CRA-940-2000 the villagers. His father Budhraj sustained injuries on his head and hands. He was taken to hospital by Ramcharan, Sonelal, Santosh, Makhan Patel with whom he had approached the police station to lodge a report.
6. It is submitted that MLC of Budhraj is Ex.D1(C) proved by Dr. Anil Kumar Deewaker (PW/10), in which it is mentioned that these injuries could have been dangerous to life if not taken care of immediately.
7. Similarly, MLC of Ramcharan is Ex.D2(C), wherein, again it is mentioned that injuries could have been dangerous to life if not taken care of. He had also sustained four incised wounds. Santosh had sustained one contusion and one incised wound which was narrated to be simple in nature. His MLC is Ex.D3(C) and that of Sonelal as Ex.D4(C) and Makhanlal as Ex.D5(C).
8. Thus, it is submitted that in fact, complainant party was the aggressor and in self defence, they had to resort to their safety and, therefore, all the appellants are required to be acquitted.
9. It is also submitted that as per evidence of Dr. Anil Kumar Deewakar (PW/10), examined Jumman S/o Chhekodilal at Health Center Katangi and found that there was an incised wound measuring 2" x 1/2"
x 1/2" bone deep, which was red in colour and fresh over the eyes, as a result of which, there was blackening in the eyes. This wound was situated on left hand side of the parietal region caused by a sharp or Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 14-11-2024 19:44:45 NEUTRAL CITATION NO. 2024:MPHC-JBP:55819 5 CRA-940-2000 penetrating object. He had also found a blunt injury measuring 5" x 5"
on the left shoulder on posterior part caused by hard and blunt object. It is, thus, submitted that the only injury which could have been fatal, was caused to the brain and that is since attributed to Sevaram, conviction of others with the aid of Sections 147, 148, 149 IPC, is not made out.
10. Reliance is placed by learned counsel for appellants on the judgment of Supreme Court in Rukma (Smt) and others Vs. Jala and others [(1997) 11 SCC 579] , wherein, it is held that injuries sustained by the accused not explained by the prosecution witnesses, injuries caused to the complainant's party not in large number held, merely because accused's party received less injuries and the complainant's party received more serious injuries resulting in death of three persons, it cannot be said that the accused were the aggressors. High Court was justified in holding that defence version was more probable than the version given by the prosecution witnesses.
11. Shri Manas Mani Verma, learned Public Prosecutor, supports the impugned judgment and submits that no indulgence is required. Complainant party was brutally beaten causing injuries to several persons and death of Jumman.
12. After hearing learned counsel for the parties and going through the record, it is evident from the record that Jumman is the deceased. Ramsewak (PW/10), sustained simple injuries which were in the form of three contusions. Munnalal sustained one incised wound and two Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 14-11-2024 19:44:45 NEUTRAL CITATION NO. 2024:MPHC-JBP:55819 6 CRA-940-2000 contusions, all were termed to be simple by Dr. Anil Kumar Deewakar (PW/10). Thus, apart from Jumman, there are two persons Ramsewak and Munnalal, who have been cited as prosecution witnesses as PW/3 and PW/5, respectively. There is no other MLC available on record to show that any other person had sustained injuries in the incident.
13. It is also an admitted fact that as far as appellants party is concerned, Budhraj Singh had sustained one incised wound on skull measuring 2 cm x 1 cm x bone deep bleeding from cut vessel elliptical caused by sharp and heavy object and there were another incised wound measuring 3 cm x 1 cm x 1 cm bone deep bleeding on left hand palm and index finger caused by a sharp object, whereas, two blunt injuries were caused. Dr. Anil Kumar Deewakar (PW/10), noted that these injuries could have been dangerous to his life. Ramcharan sustained four incised wound including fracture of bone and, therefore, the fourth injury measuring 10 cm x 3 cm x 2 cm deep on right ankle on medial side with fracture.
14. Santosh Kumar sustained a contusion and an incised wound which have been termed to be simple in nature by Dr. Anil Kumar Deewaker (PW/10). Sonelal sustained two injuries. One incised wound on head measuring 7 cm x 1 cm x 1 cm bone deep elliptical bleeding caused by sharp and heavy object and a contusion over the right shoulder.
15. Makhanlal sustained two incised wounds caused by sharp and Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 14-11-2024 19:44:45 NEUTRAL CITATION NO. 2024:MPHC-JBP:55819 7 CRA-940-2000 heavy object measuring 3 cm x 11/2 cm x 1 cm bone deep elliptical bleeding on right cheek and another measuring 1 cm x 1/2 cm x 1/2 cm x bone deep elliptical bleeding on left face mid 1/3rd radial side caused by sharp and heavy object. Radiological examination of Ramcharan proved fracture on his right ankle. Budhraj sustained a fracture on left hand.
16. These facts reveal that there was a free fight amongst the rival party. Law in relation to free fight is crystal clear. Supreme Court in Kanbi Nanji Virji and others Vs. State of Gujrat (AIR 1970 SC 219) , held that in case of a free fight, there are two groups of persons. Injuries sustained by the persons of both groups in course of such fight where death of two persons also takes place, then only those persons who are proved to have caused injuries or death, can be held guilty for the offence individually committed by them.
17. Similarly, in case of Munir Khan Vs. State of Uttar Pradesh (AIR 1971 SC 335), Supreme Court held that in a mutual fight, there is no common object and none of the accused can be convicted by having recourse to Section 149 IPC. Same is the ratio of law laid down by Supreme Court in State of Uttar Pradesh Vs. Jodha Singh (AIR 1989 SC 1822).
18. In Mangalsingh and others Vs. State of Madhya Pradesh [1996 Cr.L.J. 1908 (MP)] , it is held that there was wordy dual and clashing of arm by parties resulting into free fight in which both sides suffered injuries. It is held that it cannot be said that it was an unlawful assembly.
Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 14-11-2024 19:44:45NEUTRAL CITATION NO. 2024:MPHC-JBP:55819 8 CRA-940-2000 Hence, conviction of accused under Section 302/149 IPC was altered to one under Section304, 325 and 148 IPC.
19. In State of Madhya Pradesh Vs. Sardar [(2001) 6 SCC 433] , it is held that there was a land dispute between parties when accused attacked the deceased and caused grievous injuries which proved fatal. The evidence shows that accused were aggressors and no right of private defence was available to them. The appellant was main assaulter as assault by him was proved by consistent evidence of prosecution evidence. It was held that no benefit of doubt was available to him merely because same was given to other accused who were acquitted.
20. In view of such facts, since evidence is available on record that Sevaram had caused injury with a 'Ballam' on the head of deceased Jumman, which proved to be fatal, conviction of appellant Sevaram under Section 302 IPC is to be made. However, conviction of others under Section 302/149 IPC in a matter of free fight cannot be sustained.
21. Judgment of Rukma (Smt.) and others (supra), is on the aspect of self deence. From the discussions made by us, present case does not appear to be that of self defence, but rather that of a free fight and, therefore, ratio of judgment in case of Rukma (smt.) and others (supra), will be of no assistance.
22. Accordingly, this appeal is partly allowed. It is directed that appellant Sewaram is convicted under Section 302 IPC and he is directed to serve sentence for life and fine of Rs.1,000/- (Rupees One Signature Not Verified Signed by: ASHWANI PRAJAPATI Signing time: 14-11-2024 19:44:45 NEUTRAL CITATION NO. 2024:MPHC-JBP:55819 9 CRA-940-2000 Thousand), with default stipulation of one year R.I. However, appellant No.2 Budhraj, Santosh and Ramcaran are acquitted of the charges underSection 302/149 IPC. However, there are specific allegation on Budhraj, Santosh and Ramcharan of causing simple injuries to the other side with the help of lathi, therefore, looking to the nature of injuries as proved by Dr. Anil Kumar Deewaker (PW/10), they being simple in nature, they are convicted for offence under Section 323/149 IPC. Since Budhraj remained in custody from 25.10.1995 to 06.01.1996, Santosh remained in custody from 07.07.1995 to 22.12.1995 and Ramcharan remained in custody since 18.07.1995 to 22.12.1995, respectively, which they have already undergone, their period of remaining jail sentence is declared to be undergone subject to depositing of fine amount.
23. Record be sent back. Case property be disposed off as per the orders of the trial Court.
24. In above terms, appeal is partly allowed and disposed of.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
A.Praj.
Signature Not Verified
Signed by: ASHWANI
PRAJAPATI
Signing time: 14-11-2024
19:44:45