Madhya Pradesh High Court
Santosh Singh And Ors. vs State Of M.P. on 24 July, 2000
Equivalent citations: 2000(3)MPHT507
JUDGMENT S.S. Jha, J.
1. Appellants are convicted for an offence under Section 302, I.P.C.
2. According to the prosecution, on 19.11.91 at about 7.00 O'clock in the morning Thakurdas, Sarpanch was returning from the field of Lakhansingh after attending the call of nature; then he saw that appellants Santoshsingh, Karansingh and Mehthansingh had surrounded his brother Meghsingh. Appellant Santoshsingh said that he has murdered his brother Radheshyam and thrown his body in the well of Darua Gadariya; now we will finish you. Accused Santoshsingh gave a farsa blow to Meghsingh which hit him on right mandible; accused Mehthansingh gave a farsa blow which hit Meghsingh on the right temporal region. Accused Karansingh gave another blow which hit him on the upper portion of the head and Meghsingh fell on the ground. Then, Karansingh gave two blows by axe on the head of Meghsingh. In between Complainant Thakurdas's father Dhansingh, Phupha Birje, Uttam Jamadar and other villagers reached the spot and accused ran away.
3. Prosecution examined as many as 14 witnesses and 30 documents were exhibited. No evidence in defence was filed.
4. P.W.13 Dr. (Smt.) Santosh Dixit has performed autopsy of the deceased Meghsingh. She has written post mortem report Ex.P/28. Deceased has suffered following injuries :--
(1) Big incised wound on right side of neck 7 Inches big, 4 Inches wide and 3 Inches depth from right angle of mandible to right temporal bone-External ear is cut in between.
(2) Right carotid cut. Second incised wound on the left parietal bone 3" big x 1" width x 1" depth, bone cut below Brain matter seen.
5. Learned counsel for the appellants submitted that the deceased has suffered only two injuries; whereas eye-witnesses have stated that injuries were caused by appellants Santoshsingh, Karansingh and Mehthansingh. Specific allegation of assault by Santoshsingh and Karansingh is levied, but allegation of assault by Mehthansingh is not levied. Even otherwise, deceased had suffered two injuries only, therefore, conviction of appellant without the aid of Section 34 of Section 302 I.P.C. is bad in law. The trial Court has not considered impact of each injury. Learned counsel further submitted that P.W. 13 Dr. Smt. Santosh Dixit has deposed that the death was caused on account of cumulative effect of injuries. Thus, in the absence of evidence that each injury was sufficient to cause death, conviction under Section 302 simplicitor is bad in law and deserves to be set aside. Learned counsel further submitted that in the absence of any evidence on record about the murder of the brother of the deceased Radheshyam, appellants' conviction is without evidence on record and deserves to be set aside.
6. In the present case, the trial Court has framed the charges against the appellants for an offence under Section 302 read with Section 34 I.P.C. The language of charges is similar and the appellants were charged for the murder of Radheshyam under Section 302 I.P.C. simplicitor and for the murder of Meghsingh under Section 302 read with Section 34 I.P.C.
7. Learned counsel for appellants then submitted that considering the facts of the case and the evidence on record, unless the act of each assailant under Section 302 I.P.C. is not specified, conviction of appellants is bad in law.
8. The question involved in the ease is whether after the charges were framed under Section 302 read with Section 34 I.P.C., conviction could be only under Section 302 I.P.C.; omission to convict the appellants with the aid of Section 34 I.P.C. is fatal to the prosecution and whether the Appellate Court has power to convict the appellants with the aid of Section 34 I.P.C.?
9. Before entering into the controversy, we shall examine the evidence on record.
10. P.W.1 Thakurdas has deposed that deceased Meghsingh was surrounded by Santoshsingh, Mehthansingh and Karansingh. Santoshsingh gave him a blow by farsa which hit him on right mandible; Mehthansingh gave a farsa blow which cut his ear and Karansingh gave a blow by an axe on the head. Thereafter, Karansingh gave two more blows by axe which hit Meghsingh on the head. In para 4 he has deposed that the dispute is on account of some agricultural lands.
11. P.W. 2 Dhansingh has deposed that when he heard the shout of Meghsingh, he ran towards the spot and saw that the accused were assaulting the deceased by farsa and axe. Santoshsingh was armed with farsa and Karansingh and Mehthansingh were armed with axe. Deceased has suffered injuries on the right side of the head, ear and center of the head. Santoshsingh said that they have murdered Radheshyam and has thrown his body in the well of Darua Gadariya. Extra judicial confession about the murder of Radheshyam was also made before P.W. 1 Thakurdas, wherein Santoshsingh told Meghsingh that he has finished Radheshyam and thrown his body in the well of Darua Gadariya.
12. P.W. 5 Birje has deposed that he has heard the shout of Meghsingh, then he along with Dhansingh ran towards the spot and when they reached near Meghsingh he saw accused Karansingh assaulting Meghsingh with an axe and then Mehthansingh and Santoshsingh assaulting Meghsingh with farsa; later accused ran away when he reached near them.
13. P.W. 6 Parvata is the village Chowkidar and P.W. 14 D.S. Kushwah is the Investigation Officer.
14. Learned counsel for the appellants submitted that considering the discrepancies in the F.I.R. and the statements, the prosecution has failed to prove the case beyond reasonable doubt. Learned counsel invited attention to F.I.R. Ex. P-1 wherein it is mentioned that when the crime was being committed, at that time Thakurdas, father of Thakurdas, Phupha Birje, Uttam Jamadar and other villagers have reached the spot. Learned counsel submitted that Uttam Jamadar is not examined, but Parvata is examined, therefore, prosecution has not produced important eye-witnesses to the incident.
15. We are satisfied from the evidence of eye-witnesses that the appellants have assaulted the deceased. However, considering the question that there are only two injuries on the body of the deceased, whether the appellants can be convicted for the offence under Section 302 I.P.C.
16. In the case of State of Haryana v. Bhagirath and Ors., reported in (1999) 5 SCC 96, it is held in paras 15 and 16 of the judgment as under :--
"15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the Court. If the opinion is bereft of logic or objectivity, the Court is not obliged to go by that opinion. After all opinion what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the Court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.
16. Looking at the width of the wound on the neck (4.5 cm.) and its length (14 cm.) a doctor should not have ruled out the possibility of two successive strikes with a sharp weapon falling at the same situs resulting in such a wide incised wound. If the doctor does not agree to the possibility of causing such a wound the doctor should have put forth cogent reasons in support of such an opinion. But P.W. 7 did not give any such reason for the curt answer given by him that such an injury could not have been caused by two strikes with the same weapon or with different weapons of the same type. We are, therefore, not persuaded to entertain any doubt regarding the prosecution version on that score."
17. In the light of the judgment, we have to examine whether considering the width of the wound and its length, possibility of more than one blow cannot be doubted. The size of injury No. 1 is 7" big, 4" wide and 3" deep. Thus, possibility of more than one blow on injury No. 1 cannot be ruled out. The seizure memo of farsa Ex. P-10 from the accused Mehthansingh discloses that the length of farsa is around 8 to 10 Inches. Similarly, another farm which was seized from accused Santoshsingh is also around 7 to 8 Inches. However, whenever an injury caused by such weapon, its width will be slightly more than the thickness of sharp cutting weapon; the length may be same, but the thickness is important. In the present case, the width of the injury No. 1 is 4 Inches and second injury is 3 Inches x 1 inch. Therefore, possibility of more than one blow over injury No. 1 cannot be ruled out. Thus, it is established as held in the case of State of Haryana (Supra), that all the three accused persons have assaulted Meghsingh cannot be ruled out.
18. Even otherwise, failure of the Appellate Court in mentioning of Section 34 in convicting the appellants is only typographical error. The Appellate Court cannot shut its eyes and acquit the accused simply on the ground that conviction is not with the aid of Section 34 I.P.C. In the case of Narinder Singh and Anr. v. State of Punjab, reported in (2000) 4 SCC 603, it is held that mention of particular Section of the statute i.e. Section 34 is not necessary to convict a person. If ingredients of the Section are present, conviction can be made. In this judgment, it is further held in para 16 of the judgment that mention of the Section in the judgment is not the requirement of law to convict a person. If the ingredients of the offence are present, conviction can be made. It is not material to bring the case under Section 34 I.P.C. as to who, in fact, inflicted the fatal blow.
19. The question of mentioning or non-mentioning of Section 34 I.P.C. was considered by the larger Bench of the Apex Court in the case of Willie (William) Slaney v. State of M.P. reported in AIR 1956 SC 116. In this case both the accused were charged under Section 302 read with Section 34 I.P.C. The language of the charge was in the same wordings. In this case it is held that omission to frame a separate charge under Section 302 I.P.C. was only a curable irregularity which in the absence of prejudice could not affect the legality of conviction under Section 302 I.P.C. In para 46 of the judgment distinction of cases between Section 34 I.P.C. and Section 149 I.P.C. was sought to be drawn. It was contended that no separate charge is necessary when Section 34 is called in aid because Section 34 does not create a separate offence, one is essential for a conviction under Section 149 and that there, at any rate, the absence of a separate charge is fatal. However, in para 57 of the judgment the question of fact that whether there is any material to justify any finding of prejudice? It will turn largely on the differences between Section 302 of I.P.C. and Section 302 read with Section 34 I.P.C. It is held in para 58 of the judgment that accused persons are entitled to know from the charge and in what way does the charge in this case fall short of that.
20. In the present case, specific charge with the aid of Section 34 was framed. Therefore, accused knew right from beginning that charge under Section 302 read with Section 34 I.P.C. is framed, therefore, accused knew right from beginning that they are being prosecuted for an offence under Section 302 read with Section 34 I.P.C.
21. In the case of Gurdial Singh v. State of Punjab, reported in 1995 SCC (Cr.) 947 it is held that out of three accused, one accused is convicted and the conviction shall be made considering the act of each individual.
22. In the case of Rajan v. State of M.P. reported in (1999) 6 S.C.C. 29, it is held that jurisdiction of Appellate Court is coextensive with that of the trial Court in the matter of assessment, appraisal and appreciation of evidence and also to determine disputed issues. Similar view is taken in the case of Jai Bhagwan and Ors. v. State of Haryana, reported in (1999)3 S.C.C. 102; in this case it is held that to apply Section 34 I.P.C. apart from the fact that there should be two or more accused, two factors must be established (i) common intention and (ii) participation of the accused in the commission of an offence. If common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of common intention. It has to be inferred from the facts and circumstances of each case.
23. In the case of Kammari Brahmaiah and Ors. v. Public Prosecutor, High Court of A.P., reported in (1999) 2 SCC 522, the question of omission to frame charge was considered by the Apex Court. It is held that non-framing of a charge would not vitiate the conviction if no prejudice is caused thereby to the accused. The trial should be fair to the vast mass of the people for whose protection penal laws are made. Thus, even, non-framing of a charge is not fatal to the prosecution, if prosecution has been able to demonstrate common intention.
24. In the present case, P.W.1 Thakurdas has categorically stated that deceased was assaulted by all the accused simultaneously, which reflects common intention by each accused. P.W.2 Dhansingh in para 6 of his cross-examination has admitted that Meghsingh was chased upto 25 paces by the accused; thereafter he was assaulted. However, eye-witnesses have also supported the prosecution case.
25. In the light of above, this Court has no hesitation in holding that all the accused had gathered with common intention to assault deceased Meghsingh. They have not only assaulted the deceased Meghsingh, but also Santoshsingh has categorically stated that he has murdered Radheshyam and has thrown his body in the well of Darua Gadariya. Extra judicial confession before witnesses is also corroborated with the fact that the body of Radheshyam was found in the well of Darua Gadariya. Witnesses have admitted previous enmity.
26. Considering the facts and circumstances of the case, as discussed above, we find that no error is committed by the trial Court in convicting the appellants. However, the trial Court has omitted to mention Section 34 I.P.C. But it is amply clear from the evidence on record that all the appellants have joined together with common intention to murder Meghsingh. The common intention is also established by the prosecution beyond reasonable doubt, from the evidence on record.
27. In the result, conviction of appellants under Section 302 I.P.C. is modified to Section 302 read with Section 34 I.P.C. and their sentence of life imprisonment is affirmed.
28. With the aforesaid modification, the appeal fails and is dismissed.