Kashiram And Others vs State Of M.P. on 3 April, 2018

[Cites 5, Cited by 21]

Madhya Pradesh High Court

Kashiram And Others vs State Of M.P. on 3 April, 2018

1. Appellant No.3 was tried for the offence under Section 302 IPC; whereas Appellants No.1, 2 and 4 were tried for the offence under Section 302/34 IPC for causing death of Geeta who died on the intervening night of 28/29.4.1997 from the injuries which as per :: 2 ::

Criminal Appeal No.709/2000

post mortem report (Ex.P/1) were:

"(1) Abrasion present 5 cm. below tip of Right Shoulder 1.5x0.5 cm vertical, (2) Abrasion over Right forearm lower one-third 8x2.5 cm vertical interrupted, surrounded by contused area in 12x6 cm, bluish in colour.

(3) Rail pattern contusion present over Right Shoulder posteriorly 21x12 cm directing downwards anteriorly, 4 contusions evident, Bluish(green tinged) (present)- colour present.

(4) Abrasion over Right Leg from Right tibial tuberosity to down wards covering 14x2.5 cm area. (5) Abrasion 2 cm below lower end of injury No.4, 4x1 cm directing downwards and medially, with punctured wound on medial end 0.5x0.5x0.5 cm which is surround by abraded area for 0.5 cm in width. (6) Abrasion 6 cm below injury No.5, 6x1 cm vertical. (7) Abrasion on left leg 8 cm above the ankle 2x1 cm vertical, multiple abrasions over middle one third of left leg covering 8x3 cm area having two lacerated wound above & below the abraded area. Size 1x0.5x0.5cm and 0.5 x 0.5 x0.3 cm vertical whole area surrounded by contusion 26x14 cm bluish violet in colour.

(8) Abrasion medial aspect of left knee 1x1 cm. (9) Abrasion over left thigh mid laterally 3x1 cm. vertical. (10) Rail pattern contusion left thigh laterally 3 in number size 12.5x3 cm and anterior one 8x2.5 cm & 8x2.5 cm respectively reddish colour blue in colour. (11) Abrasion medial aspect of left forearm 6 c.m. above the wrist 2x1 cm. Another abrasion 4 cm above 1.5x1.0 cm vertical.

(12) Abrasion over medial aspect of left wrist and back 1x1 cm each.

(13) Contusion rail pattern type left arm medially covering 33x12 cm of covers posterior aspect also, 6 pattern of contusion appreciated.

(14) Abrasion on left shoulder 1x1 cm. (15) Abrasion 5 cm below shoulder tip left side, anteriorly 3x1 cm. and over back of shoulder 2x1 cm transversely, (16) Abrasion over left clavicle mid 4x1 cm. (17) Lacerated wound with abrasion over bridge of nose 1.5x1 cm inside it lacerated wound 0.5x0.3x0.3 cm. Nasal bone fractured.

(18) Lacerated wound(over) 1 cm above left eyebrow having 2 stitches 4cm x 1cm x 0.5cm on removal of stitches, (19) Small multiple abrasions present over right side of the neck 5 cm below mastoid process covering 3x3 cm area.

(20) Abrasion left side of the neck 1x1 cm. (21) Lacerated wound pinna of left ear lower 2/3 rd through & through 3x0.5 cm.

(22) Lacerated wound 1 cm behind injury No.21, 4.5x1.0x0.5cm vertical.

(23) Abrasion over left scapular region 18x6 cm vertical, :: 3 ::

Criminal Appeal No.709/2000

= Both lungs sealed in 10% formalin for histopathological examination.

Opinion:- P.M. examination is done by me and Dr. V.S. Tomar A.S., J.A. Hosp., Gwalior.

= Death was due to cardio-respiratory failure as result of multiple injuries. Injuries are caused by hard & blunt lathi like object & rough object. Homicidal in nature. = Duration of death is within 24 hrs. to 48 hrs. since P.M. examination."

2. Deceased Geeta was the wife of Appellant No.3 Mukesh who has withdrawn himself from the Appeal vide order dated 04/08/2014 and has undergone the sentence. Whereas Appellant No.1, Kashiram died during the pendency of present appeal.

3. The prosecution story is that the complainant, Kashiram (PW/2) father of the deceased lodged a complaint with Police Station City Kotwali, Morena recorded as FIR Ex.P/3 that in the intervening night, the accused Kashiram (father-in-law of the deceased) came to his house and informed that his (complainant's) daughter has died. Complainant along- with his son Ramgyan (PW/3) visited the house of his daughter and found her lying dead on the floor and found multiple injuries on her. On enquiry made from the neighborhood, he was told that Geeta was badly beaten by her husband Mukesh with iron rod and that :: 4 ::

Criminal Appeal No.709/2000

the Appellants No.1, 2 and 4 (father-in-law, mother-in- law and brother-in-law) accomplice with him and that they use to torture Geeta for dowry. The complainant also reported that in the past when Geeta, who was married to Mukesh four years prior to the date of incident, had came to her matrimonial house, she informed that she was tortured by her husband and the in-laws for not having brought the dowry.

4. With lodging of report criminal machinery was set in motion. The dead body was sent for the post mortem. Dr. J.N. Soni (PW/1) performed the autopsy vide Ex.P/1. Recovery of mogri used for the commission of crime was recovered at the instance of Mukesh. After necessary investigation, the charge- sheet was filed. Charges were framed under Section 302 IPC against Mukesh and under Section 302/34 IPC against appellants No.1, 2 and 4.

5. Prosecution, to bring home the charges, examined 12 witnesses. However, Ramgyan (PW/3), Hariknath (PW/5), Shivram (PW/6), Ranveer Singh Bhadoriya (PW/7), Santlal Sikarwar (PW/8), Banti (PW/9), Sultan :: 5 ::

Criminal Appeal No.709/2000

(PW/10) and Devendra Singh Pamar (PW/11) did not support the prosecution story. Shivcharan (PW/4) attributed the commission of offence to Mukesh Appellant No.2.

6. Accused persons abjured their guilt.

7. The trial Court recorded conviction on the testimony of Kashiram (PW/2) and Ramgyan (PW/3).

8. Taking us through the FIR (Ex.P/3) and the diary statement (Exs.P-6, 7, 8, 12, 13 and 14) and the Court statements of Kashiram (PW/2) and Ramgyan (PW/3), it is contended that no act is attributed to these two persons and since there is no eye-witness, the prosecution could not bring home the circumstances against these two appellants. It is urged that where there is no direct evidence incumbent it is upon the prosecution to complete the chain to prove the offence against accused persons beyond reasonable doubt.

9. Reliance is placed on the decisions in Mulak Raj and Others vs. the State of Haryana [AIR 1996 SC 2868], Mula Devi & Another vs. State of Uttarakhand [(2008) 14 SCC 511]. It is contended :: 6 ::

Criminal Appeal No.709/2000

on the strength of these decisions that since the prosecution failed to prove the charges against the Appellants No.2 and 4 beyond reasonable doubt, the trial Court grossly erred in recording conviction against them.

10. Learned counsel appearing for the State on his turn has supported the conviction. It is urged that the prosecution has proved the offence beyond doubt.

Taking us through the evidence on record and more particularly the statement of Dr. J.N. Soni (PW/1) and Kashiram (PW/2) and even of Shivcharan (PW/4), it is contended that all the accused persons jointly living in the house where Geeta was found dead. It is urged that the presence of Appellants No.2 and 4 in the house is natural and the multiple injuries caused to Geeta with hard and blunt object even if it was within close doors by Mukesh, all the Appellants including Appellants No.2 and 4 did not take any step to prevent the beating which establishes the prosecution story that Geeta was tortured by these in-laws. It is urged that as the Appellant No.1 (since deceased), and :: 7 ::

Criminal Appeal No.709/2000

Appellants No.2 and 4 shared common intention, the trial Court is justified in recording conviction under Section 302/34 IPC.

11. Considered the rival submissions. Perused the record.

12. Evidently, there is no eye-witness to the incident.

It is also not in dispute that Geeta was found dead in her house with multiple injuries. Dr. J.N. Soni (PW/1) found as many as 23 injuries on her as recorded in post mortem report, Ex.P/1. In the opinion of the doctor, the cause of death was cardio-respiratory failure as result of multiple injuries. Evident also it is from record that all the accused persons were residing under the same roof. It is unbelievable that with the multiple injuries caused to Geeta, she had not screamed and shouted for help. And though the neighbours did not support. However, Shivcharan (PW/4) does state:-

^^;g lgh gS fd eq>s ekywe iMk Fkk fd yMdh xhrk dh ekjihV eqds'k us dj nh Fkh vkSj mldks ekj Mkyk gSA eq>s ;g ugha irk fd mlds llqjky okys ijs'kku djrs Fks ;k ughaA esjs ls iqfyl us iwNrkN ugha dh FkhA iz-ih-6 ds iqfyl dFku esa , ls , ^^mlds :: 8 ::

Criminal Appeal No.709/2000

llqj & & & ijs'kku djrs Fks** dk dFku iqfyl dks ugha fn;k FkkA eq>s ugha irk fd eqds'k pkfjf=d ykaNu yxkdj ekjihV djrk FkkA eSus iz-ih-6 esa ch ls ch eqds'k &&& djrk Fkk ** dk dFku iqfyl dks ugha fn;k FkkA iz-ih-6 esa lh ls lh ^^?kj ds & & & ekj Mkyk** dk C;ku Hkh iqfyl dks ugha fn;k FkkA eq>s yMdh xhrk us llqjky esa ijs'kku djus okyh ckr ugha crkbZ Fkh iz- ih-6 esa Mh ls Mh ^^yMdh xhrk &&&& crkrh Fkh** dk dFku iqfyl dks ugha fn;k FkkA ;g dguk xyr gS fd eSa vfHk;qDrx.k dks vPNh rjg ls tkurk gwWA ;g dguk xyr gS fd vfHk;qDrx.k ls fey x;k gwW bl dkj.k >wBk dFku ns jgk gwWA**

13. The question is whether in the given facts the prosecution succeeded in knitting the web of circumstances in establishing that Appellants No.2 and 4 shared common intention with Appellant No.3 in causing death of Geeta.

14. Section 34 of Indian Penal Code envisages that when a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone. Thus, the provision is a principle of constructive liability. However, it does not create a substantive offence, it only lays down a principle of liability and being a rule of evidence it is :: 9 ::

Criminal Appeal No.709/2000

the burden of the prosecution to establish that the persons have shared a common intention in commission of a crime.

15. It is well established principal of law that common intention presupposes prior concert. It requires a pre- arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all.

In Pandurang and Others vs. State of Hyderabad [1955 SC 216], it is held:

"32. Now in the case of section 34 we think it is well established that a common intention presupposes prior concert. It requires a pre- arranged plan because before a man can be vicariously convicted for the criminal act of another, the act must have been done in furtherance of the common intention of them all: - 'Mahbub Shah v. Emperor', AIR 1945 PC 118 at pp. 120 & 121 (B). Accordingly there must have been a prior meeting of minds. Several persons can simultaneously attack a man and each can have the same intention, namely the intention to kill, and each can individually inflict a separate fatal blow and yet none would have the common intention required by the section because there was no prior meeting of minds to form a pre- arranged plan. In a case like that, each would be individually liable for whatever injury he caused but none could be vicariously convicted for the act of any of the others; and if the prosecution cannot prove that his separate blow was a fatal one he cannot be convicted of the murder however clearly an intention to kill could be proved in his case: AIR 1925 PC 1 at pp 5 & 6 (A) and AIR 1945 PC 118 (B).

:: 10 ::

Criminal Appeal No.709/2000

As their Lordships say in the latter case, "the partition which divides their bounds is often very thin: nevertheless, the distinction is real and substantial, and if overlooked will result in miscarriage of justice"

16. Thus, it is the burden of prosecution to establish that appellants No.2 and 4 shared a common intention with appellant No.3, who committed the offence.

17. Keeping these parameters in mind it is to be seen as to whether the prosecution succeeded in establishing that the Appellants No.2 and 4 shared the common intention of causing death of Geeta.

18. Kashiram (PW/2), who is father of the deceased, had lodged the complaint about the death of her daughter on the information received from Appellant No.1 (since deceased) father-in-law of the deceased.

19. In his complaint, he categorically stated :

"vkt vk/kh jkr djhc dk'khjke le/kh us vkdj eqjkj esa crk;k fd rqEgkjh eksM+h xhrk ej xbZ gSA geus dkQh iwNk fd dSls ejh rks dksbZ ckr ,slh ugha crkbZ rc vkt losjs ge lHkh ifjokj ds yksx eqjSuk xksikyiqjk viuh eksM+h xhrk dh llqjky esa igqaps tkdj ns[kk fd eksM+h xhrk dejs esa ejh iM+h Fkh ge lcus mldks ns[kk rks mlds flj o iwjs 'kjhj esa pksVsa gksdj [kwu fudyk FkkA eksgYys esa iwNrkN ij ekywe gqvk fd esjh eksM+h dks nekn eqds'k us ekjihV dj ekj Mkyk gSA esjh yM+dh dks llqj dk'khjke] lkl jkenqykjh tsB ds'ko Hkh ijs'kku djrs FksA esjh yMdh dks lHkh ijs'kku djrs FksA bu lcdh lger ls gekjh eksM+h ejh gS vxj ;g yksx pkgrs rks cpk ysrsA eksM+h ehuk Hkh eksM+h ls yM+rh o ijs'kku djrh FkhA esjh eksM+h ds vU; eksM+k eqds'k budss pfjf=d ykPNu ds dkj.k ls ekjihV :: 11 ::

Criminal Appeal No.709/2000

djrk FkkA vkSj ?kj ds lHkh mldk lkFk nsrs FksA lks fjiksVZ djrk gwaA dk;Zokgh dh tkosA"

20. In the statement in Court this witness Kashiram (PW/2) states:

"3- fiNys pSr dh ckr gS] eSa Xokfy;j eqjkj esa vius yM+dksa ds lkFk Fkk] vk/kh jkr dks esjk le/kh dk'khjke esjs ikl vk;k eq>s dk'khjke us crk;k fd yM+dh xhrk ej x;hA eSausa dk'khjke ls iwNk fd esjh yM+dh dSls ej x;h rks dk'khjke us dqN ugha crk;kA lqcg 8 cts ds yxHkx eSa esjh cM+h yM+dh tuds'ojh] esjk yM+dk nkeksnj] o jken;ky vfHk;qDrx.k ds ?kj ij vk;s FksA esjh yM+dh xhrk dh ykl dksBs esa j[kh FkhA esjh yM+dh ds mij diM+k <dk gqvk Fkk eSaus diM+k gVk dj ns[kk rks esjh yM+dh dk flj QwVk gqvk Fkk vkSj dku QwVk gqvk FkkA esjh yM+dh ds gkFk iSj VwVs gq;s FksA"

21. Similarly, Ramgyan (PW/3) in his testimony categorically says:

"3- ?kVuk fnukad dks jkr ds 2 cts esjh cgu ds llqj dk'khjke eqjkj esa jgrs gSa oh x;s Fks] esjk cguksbZ tks mudk Hkkutk gS mldks ysdj x;s gS vkSj ;g dgk Fkk fd rqEgkjh cgu ej x;h gS geus ;g dgk fd ge vk jgs gSaA xkao ds yksx gekjs lkFk] dsnkj] txUukFk] f'kojke] jkes'oj vk;s FksA eSusa dgk fd cgu xhrk ds flj esa dbZ pksV Fkha mlds lfj;k dh pksV Fkha] xhrk ds 'kjhj ds fiNys fgLls esa pksV Fkha] uhy ds fu'kku Fks vkSj geus xhrk dks ejh gqbZ gkyr esa muds ?kj esa ns[kk FkkA xhrk dk dku QVk Fkk mldh ukd esa xM~<k FkkA vkjksihx.k us jkr dks feydj xhrk dh ekjihV dh Fkh blfy, ej x;h FkhA"

22. Thus, these two witnesses i.e. Kashiram (PW/2) and Ramgyan (PW/3) on whose testimony the conviction is recorded does not lend support to the prosecution story as to any overt act on the part of Appellants No.2 and 4 in causing death of Geeta.

:: 12 ::

Criminal Appeal No.709/2000

The question is whether remaining present at the scene of crime which happens to be their own house and not causing any interference with the overt act of their son Mukesh of causing multiple injuries to Geeta would tantamount to sharing a common intention.

23. Merely because these two appellants (Appellant No.2 and 4) have been sharing a common roof will not be sufficient to bring home the charge of they having shared a common intention to do away with the deceased. In view whereof, we find that the prosecution has utterly failed to establish the charge of sharing common intention. Consequently, the conviction of Appellants No.2 and 4 for charges under Section 302/34 IPC is set aside.

24. These Appellants are on bail. Their presence are no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged.

A copy of the order be sent to the Court below along with its record for information.

          (Sanjay Yadav)                              (Ashok Kumar Joshi)
             Judge                                         Judge
     pwn*
Digitally signed by PAWAN
KUMAR
Date: 2018.04.03 19:17:14
+05'30'

Unlock Advanced Research with PRISMAI

Madhya Pradesh High Court