Madhya Pradesh High Court
Jhabbu And Ors. vs State Of M.P. on 29 July, 2003
Equivalent citations: 2003(3)MPHT426
Author: A.K. Shrivastava
Bench: Dipak Misra, A.K. Shrivastava
JUDGMENT A.K. Shrivastava, J.
1. Accused/appellants Laxman, Hariram, Beni and Jhabbu have preferred the aforesaid appeals against the judgment of conviction and order of sentence passed on 22nd January, 1992 by the 1st Additional Sessions Judge, Sagar in Sessions Trial No. 15/1987. Since all the appeals arise from a composite judgment, they are being disposed of by this common judgment.
2. Five persons, namely, Laxman, Hariram, Beni, Jhabbu and Shambhu were tried by the Trial Court. Laxman was charged under Section 302 of the Indian Penal Code (hereinafter referred to as 'the IPC') and the other accused persons were charged under Section 302 read with Section 34 of the IPC. After the decision of the Trial Court, Shambhu has died.
3. The facts which are not in dispute are that Parwati Bai is the wife of Hariram and was a kept of the deceased Rajjan (hereinafter referred to as 'the deceased'). In brief, the case of the prosecution is that in the Village Deori near the Old Fort there is one 'Chabutara' (platform), namely, 'Ganesh Ji ka Chabutara'. It is said that on 6-12-1985 at 4 p.m. the deceased and Radhe Soni were sitting on the said Chabutara. The complainant Pradeep was also sitting slightly ahead. At that juncture, it is said that the accused persons arrived there and on their arrival some altercation took place between the accused persons and the deceased regarding the wife of Hariram, Thereafter, accused Hariram and Shambhu caught hold the hand of Rajjan and threw him beneath the 'Chabutara'. It is alleged that accused Jhabbu and Beni gave blows of fist and kicks to the deceased and thereafter took out the knife and dealt 3-4 blows on the person of the deceased which landed on the abdominal region and face of the deceased, as a result of which the deceased breathed his last on the spot.
4. It is further alleged that on hearing the hue and cry, Narain Patel, Gafur and Raheem arrived at the spot and on account of intervention of these persons in the incident, the accused persons sustained the injuries.
5. The First Information Report (Ex. P-14) was lodged by Pradeep (P.W. 8) which was registered as Merg Report by the police. After the criminal law set in motion, the police party arrived at the spot, prepared the 'Panchanama' of the dead-body and got the spot map prepared by the Patwari. In furtherance to the investigation the Investigating Officer recorded the memorandum under Section 27 of the Evidence Act of the accused Laxman and on account of disclosure in the memorandum, a knife was seized vide Ex. P-6. The investigating agency seized the wearing apparel of the accused persons as they were stained with the blood. The knife which was used as the weapon in the offence was sent to the Doctor for the inquest report which was given in affirmative by him. On serological examination the blood stains on the clothes of the accused persons as well as on the knife were found.
6. After completion of the investigation, a charge-sheet was filed in the Committal Court which committed the case to the Court of Session who tried the case.
7. Accused Laxman was charged under Section 302 of the IPC and rest other accused persons were charged under Section 302 read with Section 34 of the IPC. Needless to emphasise the accused persons abjured their guilt. Their defence is that on the date of the incident the accused Shambhu was going to the market, at that juncture the deceased inflicted a 'Khukhari' blow on him, as a result of which some hue and cry took place and on hearing the same, the other accused persons including Laxman came to the spot. The matter was reported to the police by Shambhu and the police also sent him for medical examination. During the cross-examination of the prosecution witnesses, it was suggested that the deceased stated that at present he has kept the wife of Hariram and now he would keep his mother also. To strengthen their defence, the accused persons examined accused Shambhu, They also examined two witnesses, namely, Komal and Gafur.
8. In order to bring home the charges, the prosecution examined as many as 11 witnesses and placed Exs. P-1 to P-16 the documents on record.
9. The learned Trial Judge after marshalling and appreciating the evidence came to hold that the accused Laxman committed the offence punishable under Section 302 of the IPC and other accused persons committed the offence under Section 302/34 of the IPC, as a result of which all of them have been sentenced to suffer rigorous imprisonment of life. Hence, this appeal.
10. We have heard Shri S.C. Datt, learned Senior Advocate with Shri Siddhartha Datt for the appellants and Smt. Chanchal Sharma, learned Counsel for the State.
11. In order to justify the judgment rendered by the Trial Court, let us now examine the prosecution witnesses. Ramzan Khan (P. W. 1), Puroshot-tam (P.W. 2), Surendra Kumar (P.W. 3), Shiv Prasad (P.W. 4) and Prem Narain (P.W. 5) are the formal witnesses. The star witnesses of the prosecution are Hallu (P.W. 6), Pradeep (P.W. 8) and Narain (P.W. 9) and Radhe Soni (P.W. 10).
12. Pradeep (P.W. 8) has stated that on the fateful day he was sitting nearby the Chabutara, the other persons Rajjan Mishra and Radhe Soni (P.W. 10) were also sitting. At that juncture, all the accused persons came to the spot, they were showering filthy abuses and were, saying that as the deceased had kept the wife of Hariram, they would not spare him. Thereafter Shambhu and Hariram caught hold the hand of the deceased and threw him beneath the 'Chabutara', thereafter accused Jhabbu and Beni gave blows of fists and kicks to the deceased and then the accused Laxman took out a knife and inflicted blows on the persons of the deceased which landed on his abdominal region and on the chest. According to the witness as the deceased was thrown on the ground the blood was coming out from his mouth. On seeing the incident, he screamed, as a result of which Narain (P.W. 9) and one Gafur came to the spot. This witness later on went to the Police Station, Deori and lodged the report (Ex. P- 14). In the cross-examination, this witness denied the suggestion put on behalf of the accused persons that the deceased told that he had kept the wife of Hariram and he would keep his mother also ¼vHkh rks rqEgkjh yqxkbZ gh j[kh gS vc rqEgkjh eka dks Hkh j[ksaxs½-. This witness has admitted in his testimony that during the scuffle with the deceased accused Shambhu fell down, as a result of which he also sustained injuries. However, he categorically denied the suggestion that the deceased inflicted Khukhari blow on Shambhu.
13. Narain (P.W. 9) has corroborated the testimony of Pradeep and has deposed that he saw accused Hariram and Shambhu caught holding the hands of the deceased and were throwing him on the ground, thereafter Beni and Jhabbu gave the fist and kick blows to him and accused Laxman gave knife blows on the abdomen and chest of the deceased. This witness has also proved the memorandum (Ex. P-5) of the accused and further proved the seizure memo of the weapon. In the cross-examination, this witness has admitted that on account of scuffling which took place between the accused Shambhu and the deceased, Shambhu sustained injuries. The last eye-witness who has been produced by the prosecution is Radhelal who has also corroborated the evidence of these two eye-witnesses.
14. On the close scrutiny of the evidence of these eye-witnesses, it becomes clear that except accused Laxman, other accused persons scuffled with the deceased and gave blows of fist and kicks. During the scuffling accused Shambhu did sustain certain injuries. Shri S.C. Datt, learned Senior Advocate appearing for all the accused persons fairly stated that the accused Shambhu received simple injuries. In this view of the matter, the prosecution was not obliged to explain the injuries of the accused Shambhu.
15. Dr. Mahendra Kumar Naik (P.W.7) on examination of the dead-body of the deceased found seven incised wounds; two contusions and five abrasions. The doctor opined that injury Nos. 1, 3, 4, 5 and 6 were sufficient to cause the death. It be noted that the contusions and abrasions sustained by the deceased could have been attributed to the scuffling and could have been caused by the blows attributed to him by fists and kicks, but rest of the incised wounds have been caused by accused Laxman.
16. From the evidence of the eye-witnesses, it transpires that except Laxman, all other accused persons scuffled with the deceased. It is said that Beni and Jhabbu gave blows of fists and kicks, till then the accused Laxman did not cause any injury by knife. He caused the injury after the act of other accused persons was over. There is no evidence that the other accused persons were knowing that the accused Laxman was having knife with him. There is also no evidence that all the accused persons pre-arranged any plan or meeting of minds was developed on the spot. In this view of the matter, it is difficult to hold that the accused persons, namely, Hariram, Beni and Jhabbu shared the common intention to kill the deceased and as such their conviction under Section 34/302, IPC can not be sustained in the eye of law. This is more so, as there is no evidence that when Laxman was stabbing the deceased, the other accused persons caught hold of him. However, looking to the role assigned to them and their individual act, they have definitely committed the offence under Section 323 of the IPC and we accordingly hold so.
17. The next question which we have to decide that what offence Laxman has committed. It is the case of the prosecution that the wife of the accused Hariram was kept by the deceased. From the evidence of the eye-witnesses, it is manifest that first of all scuffle took place between the accused persons and the deceased and thereafter when the accused Shambhu sustained certain injuries, Laxman dealt the knife blows. Gafur Khan (D.W. 1), who is also an eye-witness to the incident and who has been named as an eye-witness examined by the prosecution, has stated that the deceased caused injury to the accused Shambhu by Khukhari (a sharp edged weapon). The injuries sustained by accused Shambhu has not been disputed by the eye-witnesses examined by the prosecution, though they in different spectrum had stated that on account of fall during scuffling Shambhu sustained the injury.
18. Shri Datt, learned Senior Counsel has placed reliance to Para 22 of the decision of the Division Bench of this Court in the case of Abdul Majid Mukeemuddin v. State of Madhya Pradesh, 1963 MPLJ 592, which we think it proper to reproduce :--
"22. The provocative incident is alleged to be the uttering of abuses which the deceased was hurling at the accused/appellant in front of his (accused's) house. While the tempers were thus frayed, there followed an insinuation from the deceased that the accused/appellant had once misbehaved with reference to his pigeon :
¼rqeus ,d ejrck esjs dcwrj ds lkFk esa Hkh gjdr dh½ Though Kallu (P.W. 3) does not give the nature of the abuses, Lalkhan (P.W.4) in his cross-examination has stated that ^eqjlhn ekLVj ds edku ds lkeus [kM+k gksdj eka cfgu dh xkyh ns jgk Fkk*-. We can, therefore, hold that the abuses were filthy and could consequently have provoked the accused/appellant to lose his self-control. This is also evident from the fact that in retaliation the accused/appellant was also provoked to abuse the deceased in return, and even to grapple with him. Thereafter, according to Lalkhan (P.W. 4), the deceased made an insinuating reference to the pigeon incident. We do not know what the pigeon incident was. The witness (P.W.4) was not asked to explain that it was, nor has the accused appellant explained it. It is, however, clear that the expression is capable of bearing the meaning which the learned Counsel for the defence suggested, viz., that the deceased had insinuated that the accused/appellant had sexually misbehaved with his pigeon. The insinuation aforesaid coming closely after the filthy abuses which had led to a scuffle between the deceased and the accused/appellant, we are of opinion that it would amount to a grave and sudden provocation, because any reasonable man belonging to the same class of society as the accused and placed in the situation in which the accused was placed, would be so provoked at the suggestion as to lose his self control. It would be a grave provocation, because it would have been a very serious aspersion on the character of the accused/appellant, and it would also have been sudden because in the midst of abuses, when due to frayed tempers abuses were being hurled by the parties on each other, the accused/appellant could not have expected that the deceased would then make such a scurrilous suggestion when the dispute between them was relating to the flow of household dirty water through a drain leading towards the graveyard."
19. We have quoted hereinabove Para 22 because Their Lordships of the Division Bench categorically held that looking to the averments made it was a case of sudden and grave provocation. In the instant case also, it appears that as the deceased kept the wife of accused Hariram (mother of accused Laxman), it made a cause to accused Laxman for sudden and grave provocation. In the case of Abdul Majid (supra), this Court altered Sections 302 to 304, Par-I of the IPC. In the present case, it has come in the evidence of all the eye-witnesses that when the accused Shambhu fell down from the Chabutara (platform) during the scuffle with the deceased, he sustained injuries and thereafter the accused dealt the knife blows. It is not the case of the prosecution that right from very beginning the accused was aggressive and dealt the knife blow. Looking to the totality of circumstances and the evidence, it could hardly be said that it is a case of culpable homicide amounting to murder. In our considered view the case would rest under the arms of Section 304, Part-I of the IPC.
20. In the result, the conviction of appellants Hariram, Beni, Jhabbu and Shambhu (deceased) under Section 34/302 of the IPC is set aside and they are acquitted from the said charges, however, they are hereby convicted for the offence punishable under Section 323 of the IPC and to suffer rigorous imprisonment of one year each which they had already suffered. The conviction of appellant Laxman under Section 302 of IPC is set aside and in its place he is convicted under Section 304, Part-I of the IPC to suffer rigorous imprisonment of 10 years which he had already suffered. Appellants Hariram, Beni and Jhabbu are on bail. They be discharged of their bail bonds. Appellant Laxman is in custody. He be set at liberty forthwith, if not required in any other case.
21. The criminal appeals are allowed to the extent indicated hereinabove.