Hirasai (Dead) and Others vs State of M.P.

Pritinker Diwaker, J.—This appeal has been preferred against the judgment and order dated 15.5.1996 passed by Additional Sessions Judge, Janjgir in Sessions Trial No. 482/1991 convicting the accused/appellants under Sections 304II, 325/34 and 323/34 IPC and sentencing each of them to undergo rigorous imprisonment for four years u/s. 304-II, two years with fine of Rs. 1000 u/s. 325/34 and six months u/s. 323/34 IPC, plus default stipulations. Facts of the case in brief are that on 22.8.1991 at about 10 a.m. FIR Ex. P-25 was lodged by injured Amritlal (PW-6) to the effect that on that day at about 7 am. on account of blocking the flow of water in the field by deceased/accused Panchram, there was seepage in his house as a result of which some dispute cropped up in which accused/appellant Bisahu exhorted to assault the victims as they were always creating a nuisance. Deceased/accused Hirasai and accused/appellant Bisahu assaulted him with club as a result of which he sustained injury on his right palm; deceased/accused Panchram caused injury on his back; his mother Sonkunwar (PW-7) was assaulted by deceased/accused Arjun and Panchram whereas the deceased who happened to be his father was assaulted by all the accused persons with club, hand and first saying that they would kill him, as a result of which there was swelling on his head and blood was coming out from his mouth. It is alleged that the incident was witnessed by Shrawan (PW-8) and Shivcharan (PW-9). Based on this FIR, offences under Sections 294, 323, 506B and 34 IPC against deceased/accused Hirasai, Panchram, Arjun and present appellant Bisahu were registered. Injured Amritlal (PW-6), Sonkunwar (PW-7) and deceased namely Jagatram were medically examined by Dr. P. Mahajan vide Ex. P-16, P-17 and P-18 on 22.8.1991 and after the death of deceased Jagatram post mortem examination was done on his body on 23.8.1991 by Dr. H.K. Dua (PW-14) and according to him cause of death was hemorrhage and shock due to head injury. Vide Ex. P-13, x-ray of Amritlal (PW-6) was taken by Dr. C.S. Sharma (PW-5) and according to the x-ray report there was fracture on his metacarpal bone. After investigation, charge sheet was filed on 20.9.1991 for the offences under sections 302, 325, 294, 323, 506B and 34 IPC against all the accused persons. Court below however framed the charge under Sections 302, 323 and 325 IPC.

In support of its case, prosecution has examined 14 witnesses. Statements of the accused persons were also recorded u/s 313 of the Code of Criminal Procedure in which they denied the charges levelled against them and pleaded their innocence and false implication in the case. Accused Arjun expired during the pendency of trial itself.

After hearing the parties, the Court below has convicted and sentenced the accused/appellants as mentioned above. During the pendency of this appeal, accused/appellants Hirasai and Panchram also expired which has been verified by the State counsel too and therefore, this appeal now remains only to accused/appellant Bisahu.

Counsel for the sole surviving accused/appellant submits that the charge u/s 34 IPC was not added at the time of framing charge and therefore accused/appellant Bisahu cannot be convicted with the aid of said section. As per the post mortem report Ex. P-29 and MLC Ex. P-18 only one injury was found on the head of the deceased but there is no evidence to show as to which accused had caused said injury. Referring to the statements of Amritlal (PW-6) and Sonkunwar (PW-7), counsel for the appellant submits that accused/appellant Bisahu in tact had caused injury to Sonkunwar (PW-7) whereas injury sustained by the deceased Jagatram was caused by deceased/accused Arjun. She submits that taking the entire evidence of the witnesses as it is, the accused/appellant cannot be convicted u/s 304-II with the aid of Section 34 IPC. According to her, there is no evidence to show that there was any common intention on the part of the accused persons to cause death of the deceased and that as the incident had taken place all of a sudden, the only inference which can be drawn against them is that they were intending to cause some injury to the other party. She submits that for the death of deceased Jagatram, accused/appellant Bisahu cannot be held responsible and at best he can be convicted u/s 325 IPC. She further submits that the story narrated in the F.I.R. and in the Court by the eye witnesses is totally different and thus the conviction of the accused/appellant is bad in the eye of law. Counsel for the accused/appellant further submits that copy of the FIR has not been sent to the Magistrate and as the investigating officer has not been examined, entire trial is vitiated. In support of her submissions, counsel for the accused/appellant placed reliance on the decision of the Apex Court in the matter of Purshottam and Another Vs. State of Madhya Pradesh, , in the matter of Bhajan Singh @ Harbhajan Singh and Others Vs. State of Haryana, 1, in the matter of Mukati Prasad Rai @ Mukti Rai and Others Vs. State of Bihar (Now Jharkhand), in the matter of Nagaraja Vs. State of Karnataka, in the matter of State of H.P. Vs. Nazar Singh and Another, nd in the matter of Bellachi (Dead) by LR Vs. Pakeeran,

On the other hand, counsel for the respondent/State supports the judgment impugned and submits that even if the charge u/s 34 has not been added along with other offences, after perusing the evidence, the Court below is fully justified in convicting accused/appellant Bisahu with the aid of section 34 IPC. He submits that it is the accused/appellant Bisahu who is the perpetrator of the incident as he had exhorted the other persons to kill the other party. According to the State counsel, Amritlal (PW-6) and Sonkunwar (PW-7) have categorically stated that all the accused persons had assaulted the deceased namely Jagatram. He submits that independent witness Shivcharan (PW-9) has also supported the case of the prosecution and stated as to the manner in which all the accused persons had assaulted the deceased and other victims. He further submits that based on memorandum of accused/appellant Bisahu, a club was seized from him and the memorandum and seizure have been duly proved by Chand Ram (PW-2). State counsel further submits that as the victim Amritlal (PW-6) had suffered fracture in his metacarpal bone, conviction of the accused/appellant u/s 325/34 IPC is fully justified. He further submits that conviction of accused/appellant u/s. 323/34 for causing injury to others is also justified.

Heard counsel for the parties and perused the material available on record.

Resham Lai (PW-1) - the witness to inquest Ex. P-1 has not stated anything against the accused/appellant. Chand Ram (PW-2) is the witness to seizure and memorandum vide Ex. P-2 to P-10 who has duly supported the case of the prosecution. According to him, memorandum of accused/appellant Bisahu is Ex. P-4 and based on that club was seized vide Ex. P-5. Kanahiya (PW-3) is the ward boy who has not stated anything against the accused/appellant. Prahlad Tiwari (PW-4) is the witness who prepared inquest Ex. P-1 and sent the body of the deceased for post mortem examination. Dr. C.S. Sharma (PW-5) is the radiologist who had taken x-ray of injured Amritlal (PW-6) vide Ex. P-13 and stated that there was fracture in his metacarpal bone. Amritlal (PW-6) has stated that he knew the accused persons and that on the date of incident one Narmada Prasad had gone to take water from the pond where deceased/accused Panchram asked him not to take the same. His father Jagatram (deceased) asked him to allow Narmada Prasad to take water and at that time accused/appellant Bisahu objected to it saying why he was taking the side of Narmada Prasad who was the son of brother-in-law of the deceased Jagatram. He has stated that accused/appellant Bisahu told other accused persons namely Panchram, Hirasai and Arjun that deceased was taking the side of his brother-in-law and therefore, let he be beaten. He intervened in the matter saying that deceased Jagatram be spared and accused/appellant assaulted him also. All the accused persons had beaten his father and made him fall flat. Incident was witnessed by Sonkunwar (PW-7), Shivcharan (PW-9), Balram, Narmada Prasad, Raja (PW-11) and Shiv Dayal. Thereafter, he went to police station Akaltara where the report was lodged and at that time his father Jagatram was unconscious. When his father was taken to Bilaspur and by the time he reached there he was already dead. Post mortem examination on the body of the deceased was conducted at Bilaspur and for his injury x-ray was taken. In cross-examination, this witness has stated that there was some open land between his house and that of deceased/accused Hira Sai and there was no previous enmity between them. According to him, before the incident there were no relations between the accused persons and his father on account of a dispute as once his sister was beaten by deceased/accused Panchram. He has further stated that at the time of incident the accused persons were preparing themselves to go to their field. Shiv Dayal and Shivcharan (PW-9), according to this witness, had seen the entire incident and at the time of lodging the report he had mentioned the names of Balaram, Narmada Prasad and Shiv Dayal but if they are not mentioned in the same he cannot tell the reason. This witness has further stated that he was not aware as to how many assaults were made by the accused persons with club. He has stated that all the four accused persons had assaulted him and his father and at that time he was held by deceased/accused Arjun. According to him, accused Bisahu caused injury on his right palm and that he was assaulted for about 10 times. He has stated that his father was not assaulted by hand and first and that he did not report the matter like that. Son Kunwar (PW-7) has stated that she knew the accused/appellant and that on the date of incident her nephew Narmada who had gone to take water from the pond was beaten by deceased/accused Panchram. Said Panchram is stated to have snatched his bucket also. Her husband Jagatram was beaten by the accused persons and that deceased/accused Arjun was carrying axe and assaulted him with blunt side of it whereas other accused persons had assaulted him with club. She rushed to save her husband and while intervening she too was assaulted by accused/appellant Bisahu. On hearing her cries, the accused persons had left the place and gone inside their houses. This witness has stated that deceased Jagatram was taken to police station and then to Bilaspur and blood was oozing from his mouth. In cross examination, she has stated that at the time of recording her statement she had disclosed to the police that accused/appellant Bisahu had beaten her and if the same is not mentioned therein, she could not say anything for that. In paragraph - 3 she has stated that accused persons assaulted her husband for 15 minutes. Shrawan Kumar (PW-8) has not supported the case of the prosecution and has been declared hostile. Shivcharan (PW-9) - an eyewitness to the incident has stated that deceased Jagatram was assaulted by all the accused persons with club and when he reached the spot, deceased was lying on the ground and at that time deceased/accused Arjun was carrying axe and other accused persons were carrying clubs. According to this witness, accused persons and the deceased are of the same family. Dr. P. Mahajan (PW-10) is the witness who medically examined Amritlal (PW-6) vide Ex. P-17, Sonkunwar (PW-7) vide PW-16 and deceased Jagatram vide Ex. P-18 and found following injuries on their body:

Deceased Jagatram:-

Patient was semi conscious, blood was coming out from both his nostrils, blood had clotted on temporal region. He was referred to Bilaspur.

Amritlal (PW-6):-

Swelling and tenderness over the right hand of upper surface and bruises present over the right super scapular region measuring 10 x 2 cms

Sonkunwar (PW-7):-

Contusion present over the back side of left shoulder joint measuring 3x2 cms.

Rajaram (PW-11) has not supported the case of prosecution and has been declared hostile. Chhotelal (PW-12) is the Patwari who prepared spot map Ex. P-24. Punaram (PW-13) is the witness who recorded FIR Ex. P-25 and sent the injured to hospital vide Ex. P-26 to P-28. Dr. H.K. Dua (PW-14) is the witness who conducted post mortem examination on the body of deceased vide Ex. P-29 and found depressed skull fracture on frontal bone of right parietal region and cause of death was shock and hemorrhage.

Having thus carefully seen the material available on record, this Court arrives at a conclusion that the prosecution has not been able to prove as to by whom the fatal injury was caused to deceased Jagatram. According to Sonkunwar (PW-7), deceased/accused Arjun caused injury to the deceased with blunt side of the axe whereas others assaulted him with club. Amritlal (PW-6) and Shivcharan (PW-9) have stated in their court statement that all the accused persons had assaulted the deceased whereas the record shows that only one injury was caused to him. Once accused/appellant has been convicted u/s 304-II IPC by giving a categorical finding that there was no intention on the part of the accused/appellant to kill the deceased he cannot be convicted with the aid of section 34 IPC. Record further goes to show that the incident had occurred over water dispute and the only intention on the part of the accused persons appears to be only of beating the deceased Jagatram, Amritlal (PW-6) and Sonkunwar (PW-7). In these circumstances the conviction of the accused/appellant u/s 304-II IPC is not sustainable in the eye of law and at the most his act would fall u/s 325 IPC. Order accordingly.

As regards his conviction u/s 325/34 IPC for causing injury to Amritlal (PW-6) and u/s 323/34 IPC for causing injury to Sonkunwar (PW-7) is maintained.

As regards sentence, accused/appellant by now must be aged about 75 years, that the incident appears to have taken place on account of some water dispute, that the appellant is facing the criminal case right from 1991 and that he has already remained in jail for a period of about one year and three months, this Court is of the opinion that it would be the larger interest of justice if the sentence imposed on him is reduced to the period already undergone by him.

The net result of the appeal is that conviction of the accused/appellant would be u/s 325 and not u/s 304-II as has been awarded by the Court below for assaulting deceased Jagatram. It would however remain as it is as far as it relates to the assault of Amritlal (PW-6) and Sonkunwar (PW-7) u/s 325/34 and 323/34 IPC respectively. However, the sentence imposed on him is reduced to the period already undergone by him for the reasons detailed above. However, in lieu thereof, this Court deems it proper to direct the accused/appellant to deposit Rs. 10,000 in the Court below which would be payable to Sonkunwar (PW-7) -wife of the deceased, as compensation u/s 357 Cr.P.C. If the said amount is not deposited by the accused/appellant within a period of six months, he will be required to remain in jail for a period of three months. Appeal thus partly allowed.