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Judgment
Anjuli Palo, J.
The accused persons have challenged their conviction being aggrieved by the judgment dated 20.01.1995, passed by 1st Additional Sessions Judge,
Seoni in S.T. No.14/93, whereby they have been convicted for offences punishable under Sections 302 read with Section 149 and 148 of the IPC and
sentenced to rigorous imprisonment for life with fine of Rs.2,000/- and R.I. for one year with fine of Rs.200/- respectively with default stipulation.
Brief facts of the prosecution case are that on 8.9.1992 at about 4:00 p.m., the deceased Jugraj were taking his cattle with his son Narangi and
servant through the fields of the appellants. The appellant Bhaiyalal tried to stop them for passing his cattle through his field, hence quarrel began
between the appellant Bhaiyalal and Jugraj. All other accused persons came there and started beating Jugraj. The appellants Bhaiyalal and Shyamlal
inflicted blows of axe, whereas other accused persons assaulted him by stones and sickles. Jugraj died on the spot. The matter was reported to the
Police Station Khurai, District Seoni and crime was registered for the offences under Sections 148, 302/149 of the IPC against the appellants. Co-
accused Jaipal is facing trial in the Juvenile Justice Board.
After committal of the case, charges under Sections 148 and 302/149 of the IPC have been framed against the appellants by the trial Court. After
recording the evidence, the trial Court came to the conclusion that as a member of unlawful assembly all the appellants are guilty for rioting and
committing the murder of Jugraj. Hence, they were convicted for offences punishable under Sections 148 and 302/149 of the IPC and sentenced as
mentioned above.
The appellants have challenged their conviction on the grounds that, they were falsely implicated by the complainant party. They are entitled to get
benefit of their right of self defence because Jugraj started quarrel with them. Jugraj (since deceased) was wrong, who entered in the field of the
appellants with his cattle to destroy their crops. Hence, the appellants have prayed to set aside the judgment of conviction and to accquit from the
charges levelled against them.
Learned Govt. Advocate for the State has submitted that the trial Court has rightly held the appellants guilty for commission of offences punishable
under Sections 148 and 302/149 of the IPC and awarded a proper sentence.
We have heard learned counsel for the parties at length and perused the record.
As per prosecution case, at the time of incident Mahesh (PW-3), Narendra (PW-2) (son of the deceased) and Rajendra (PW-1) were present
either on the spot or near by the spot. They witnessed the incident. Narendra (PW-2) is an injured eye witness of the incident. As per the statements
of Rajendra (PW-1), Narendra (PW-2), Mahesh (PW3) and Shivraj, came to the spot and saw the appellants fled away from the seen of occurrence.
The deceased Jugraj was lying on the spot. Mahesh (PW-3) and Hemraj (PW-8) also deposed that Jugraj narrated to him that, he was assaulted by
the appellants. FIR (Ex.P/1) was lodged by Mahesh (PW-3).
We do not find any material contradiction and omission in the testimony of all the above important prosecution witnesses. However, it is true that
some of the prosecution witnesses are close relatives of the deceased. In the case of Arjun Vs. State of Chhattisgadh (2017) 2 MPLJ (Cr.) 305,
Yogesh Singh Vs. Mahabeer Singh & others (2017) 11 SCC 195 and Muttaicose @ Subramani Vs. State of Tamil Nadu (2017) 8 SCC 598, it was
clearly held that the testimony of close relatives should be scrutinized with care. It cannot be discarded because of their relationship with the
deceased, if it is found reliable and trustworthy, conviction can be based on it. Therefore, we find that the ocular evidence is duly supported by the
medical evidence. This fact is unchallenged that during the incident, appellant Bhaiyalal also inflicted simple injuries to Narendra (PW-2). The
testimony of Narendra (PW-2) has also been corroborated by Dr. S.S. Nakhdey (PW-4) vide his MLC report (Ex.P/3), which was unchallenged,
hence, it is treated as admitted fact.
After considering the entire testimony of those witnesses, we also come to the conclusion that, their presence near by the spot is quite natural and
reliable. They were in a position to clearly witness the incident. They all deposed that the appellants caused injuries to Jugraj. One accused was not
identified by them. Appellants Bhaiyalal and Shyamlal inflicted blows by axes on him and other appellants assaulted by their sickles. Jugraj died on the
spot due to the injuries sustained by him on his vital parts of the body i.e. head, chest and neck.
In this regard, the testimony of Dr. S.S. Nakhdey (PW-4) and his postmortem report (Ex.P/2) is very important. Dr. S.S. Nakhdey (PW-4) found
following injuries on the body of the deceased.
(1) Contusion of 6†x 1†over left side of chest parallel to costal margin.
(2) Abrasion of ½†x ½†over xiphisternum.
(3) Contusion of 6†x 4†on the right scapular region.
(4) Contusion of 3†x 3†on the left scapular region.
(5) Contusion on right shoulder of 2†x 2â€.
(6) Multiple abrasions, varying from ¼†to ½†x ¼†to ½†over right thigh outer and upper part.
(7) Contusion of 2†x 2†on the right side of neck.
(8) Contusion on left side of neck of 2†x 2â€.
(9) Lacerated wound on right helix of the ear of 1†x ¼†x cartilage deep.
(10) Abrasion of 1†x ½†on right side of chest just below nipple.
(11) Lacerated wound on right parietal region of 1†x ½†x scalp deep.
(12) Contusion of 4†x 4†over right parietal region.
(13) Lacerated wound of ½†x ½†x muscle deep on root of penis.
(14) Abrasion of ½†x ½†over body of penis.
(15) Two abrasions over left leg middle ½†x ½â€.
(16) Contusion of 2†x 2†on the right side cheek.
Dr. Nakhdey (PW-4) further opined that, he found about 16 injuries on the head, neck, ear and on his private parts of the deceased. He also found
so many internal injuries on the body of the deceased. He found many small wounds in internal side of the neck. The deceased died due to excessive
bleeding and shock. All the injuries were antemortem and homicidal in nature. Further, that all the injuries are sufficient to cause his death in ordinary
course of nature. They were caused by an axe and sickle within 18-24 hours from the postmortem.
As per prosecution case, above injuries are caused by axes and sickles, but Dr. S.S. Nakhdey (PW-4) did not find any incised wound on the body
of deceased. There is some contradiction between the ocular and medical evidence. But for this reason only, whole prosecution case cannot be
brushed aside. It is established that the appellants inflicted aforesaid blows on the deceased.
The next question for consideration is that, whether appellants are liable to be convicted for offences under Section 148 and 302/149 of IPC. In
this regard, it is important to note that the learned trial Court convicted four persons i.e. Bhaiyalal, Shyamlal, Jagvati and Bainjan Bai. In Sections 47,
148 and 149 of the IPC, one of the important ingredient is that the accused persons are essentially in number of five or more, because all the offences
covered with the definition of “unlawful assemblyâ€, which is defined in Section 141 of the IPC as under:-
“An assembly of five or more persons is designated an “unlawful assemblyâ€, if the common object of the persons composing that assembly is
same. If there is less than five persons.â€
In our considered opinion, the offence under Sections 148 and 149 of the IPC would also not be made out because Section 142 defines: Whoever,
being aware of facts which render any assembly an “unlawful assemblyâ€, intentionally joins that assembly, or continues in it, is said to be a
member of an “unlawful assembly.†Further Sections 147 and 148 of the IPC relates to the offence of rioting Section 146 of the IPC defines
“rioting†as under:-
“Whenever force or violence is used by an unlawful assembly, or by any member thereof, in prosecution of the common object of such assembly,
every member of such assembly is guilty of the offence of rioting.â€
Similarly, Section 149 of the IPC defines that:-
“Every member of ‘unlawful assembly’ guilty of offence committed in prosecution of common object. The factor of ‘unlawful
assembly’ is made out with five or more persons.â€
Therefore, in our opinion the learned trial Court has wrongly convicted four accused persons with the aid of Section 149 of the IPC along with
offence under Section 302 of the IPC and for Section 148 of the IPC.
In our opinion, the involvement of all the appellants with their common object is duly established by the prosecution evidence. All the prosecution
witnesses clearly state about their presence and active participation of every appellants at the time of offence. In case of Raj Kishore Purohit Vs.
State of Madhya Pradesh and others (2017) 9 SCC 483, wherein it has been held that:-
“ If the sequence of events and the manner in which the occurrence took place, manifests a pre-concerted plan and a prior meeting of minds. It
has established the common intention of the accused persons, it was further held by the Supreme Court that they need not for attach or possession of
weapon required to establish their common intention.â€
In case of Raj Kishore (supra) in paragraph 10, the observations of earlier decision of the Supreme Court also observed as follows:-
“Though judicial precedents with regard to common intention stand well entrenched, it will be sufficient to refer State of Rajasthan vs. Shobha
Ram, (2013) 14 SCC 732, observing as follows :-
“10. Insofar as common intention is concerned, it is a state of mind of an accused which can be inferred objectively from his conduct displayed in
the course of com- mission of crime and also from prior and subsequent attendant circumstances. As observed in Hari Ram v. State of U.P.6 (SCC p.
622, para 21), the existence of direct proof of common intention is seldom available and, therefore, such intention can only be inferred from the
circumstances appearing from the proved facts of the case and the proved circumstances. Therefore, in order to bring home the charge of common
intention, the prosecution has to establish by evidence, whether direct or circumstantial, that there was plan or meeting of mind of all the accused
persons to commit the offence before a person can be vicariously convicted for the act of the other.â€
Learned counsel for the appellants has placed reliance on the case of Suresh Singhal Vs. State (Delhi Administration), (2017) 2 SCC 737 and
contended that the appellants are entitled for right of private defence under Sections 96, 97 and Section 300 Exception 2 and 4 of IPC. In this regard,
we find that the prosecution witness Rajendra (PW-1) has admitted in his cross-examination that dispute took place due to the fault of Jugraj. Prior to
the incident, there was land dispute between the family of Jugraj and the appellants’ family. Mahesh (PW-3) close relative of the deceased has
also admitted that their land and appellants’ land are adjscent. From the statement of Rajendra (PW-1) at paragraghs 9 & 10, it appears that firstly
Jugraj abused the appellants and he assaulted Bhaiyalal. At that time, Bhaiyalal had no weapon with him.
After sometime, appellant Shyamlal came there with an axe and he tried to separate them, but he failed. Jugraj caught hold both the appellants and
assaulted them. Thereafter, other appellants namely Jagwati Bai and Bainjan Bai came there and they were dragging Jugraj to save Shaymlal and
Bhaiyalal. When Rajendra (PW-1) caught hold the neck of Shyamlal and Bhaiyalal, brother-in-law of Bhaiyalal inflicted blow of lathi on Rajendra.
Jugraj snatched the said lathi from him and started beating Bhaiyalal and Shyamlal.
Narendra Singh (PW-2) has admitted in paragraph-7 of his cross-examination that the place were also adjoining with the field of Shyamlal. Earlier,
their cattle were grazing in the field of Shyamlal and Bhaiyalal. Therefore, the appellants quarrelled with them. Above testimony clearly establish that
the deceased himself was the aggressor and the alleged incident took place at the field of appellants. Objection has been raised by the appellants that
the deceased entered into their field. Therefore, such incident occurred.
Section 97 (2) of the IPC prescribed that, the property, whether movable or immovable, of himself or of any other person, against any act which is
an offence falling under the definition of theft, robbery, mischief or criminal trespass, or which is an attempt to commit theft, robbery, mischief or
criminal trespass. But this right is applicable subject to the restriction contain in Section 99.
Section 99 of IPC defines that, there is no right of private defence against an act which does not reasonably caused the apprehension of death or of
grievous hurt. Right of private defence in no case extents to the inflicting of more harm than it is necessary to inflict for the purpose of defence.
In the light of above provisions, we find no evidence on record to establish that the appellants have sustained any injury during the incident. No
counter report has been registered against the complainant and his associates.
Therefore, the appellant have no right to kill any person in their private defence. Under exception of 2 and 4 of Section 300 of IPC they are liable
to be convicted under Section 304 Part-II of IPC with the aid of Section 34 of the IPC because they have no intention to cause death of the deceased.
Their attack was not premeditated and preplanned. As per medical evidence, doctor did not find any incised wound on the body of the deceased.
In the case of Surain Singh Vs. State of Punjab (2017) 5 SCC 796, it has been held that act of accused was not cruel and he did not take undue
advantage of deceased. Scuffle took place in the heat of passion and all requirements under Section 300 Exception 4 of IPC is satisfied. Hence, the
appellants are liable to be convicted under Section 304 Part-II read with Section 34 of IPC in place of Sections 302/149 of IPC. [see also Ankush
Shivaji Vs. State of Maharastra (2013) 6 SCC 770 and Vijay Pandurang Vs. State of Maharastra (2017) 4 SCC 377]. In the light of above principles,
the act of appellants falls under the Exception 4 of Section 300 of IPC.
In case of Dahari and others Vs. State of Uttar Pradesh, (2012) 10 SCC 256, it was held that:-
“In a case where the prosecution fails to prove that number of members of unlawful assembly is five or more, the Court can simply convict guilty
person with aid of Section 34, provided that there is adequate evidence on record to show that such accused shared a common intention to commit the
crime in question.â€
Similarly, in case of Babu and another Vs. State represented by Inspector of Police, Chennai with Elumalai and another Vs. State represented by
Inspector of Police, Chennai, (2013) 4 SCC 448, it was held that:-
“Accused were charged for offences under Sections 302/149, 148 and 324 of the IPC, if reduction of number of accused to less than five due to
acquittal of some accused, conviction of remaining accused however, sustainable with the aid of Section 34 of the IPC. Non-framing of charge under
Section 34 of the IPC, no effect of conviction of the accused can be altered to one under Sections 302/34 of the IPC.â€
Therefore, discussed above, the appellants are liable to be acquitted from the charges of offences punishable under Sections 148 and 302/149 of
IPC. Accordingly, they are acquitted from the said charges and convicted for offence under Section 304 Part-II read with Section 34 of the IPC.
Looking to the facts and circumstances of the case, they are liable to be sentenced for rigorous imprisonment of five years [see also Ankush (supra)].
The fine imposed upon the appellants and the default sentence awarded to them for offence under Section 302 of IPC shall remain unaltered and
conviction of appellant Bhaiyalal for offence under Section 323 of IPC is also not interfered.
The appeal is partly allowed. The appellants were in jail for more than four years and seven months. At present, the appellants are on bail. The jail
sentence already undergone by the appellants shall be adjusted in the jail sentence. They are directed to surrender immediately before the concerned
trial Court to undergo the remaining jail sentence, failing which the trial Court shall take appropriate action.
Copy of the judgment be sent to the trial Court for information and necessary compliance along with its record.