Kalam Singh And Others vs State Of Madhya Pradesh

The appellants have filed this appeal against the judgment dated 16.11.1995 passed by Additional Sessions Judge, Narsinghpur in S.T. No.135/1994,

whereby the appellants No.3 & 7 have been convicted for offences punishable under Sections 302 and 148 of the IPC and sentenced to R.I. for life

and three years with fine of Rs.10,000/- respectively and the appellants No.1,2,4,5 and 6 have been convicted for offences punishable under Sections

148, 302/149 of the IPC and sentenced to R.I. for three years and life imprisonment with fine of Rs.10,000/- respectively.

The prosecution story in brief is that on the date of incident i.e. on 5.4.1994 at around 12 O’clock son of Ramcharan Lodhi, Sukhdeo, his

brother’s son Rajju and wife of Ramcharan had been grazing their cattle in the field of complainant party, who belongs to the caste of Chamar.

Yashwant Singh abused them. Wife of Ramcharan Lodhi and children told the incident to Ramcharan Lodhi. Thereafter, Ramcharan Lodhi went to

the house of Yashwant Singh and complained that why their cattle were grazing in our field and why he abused us. He returned back to his house and

thereafter accused persons went to the house of Ramcharan Lodhi. Appellant Yashwant Singh inflicted blow of Lathi on the head of Ramcharan and

appellant Preetam inflicted blow of Lathi on his head. Sukhdeo also received injury on his head. Ramcharan died on the spot. Report of the incident

was lodged at police station in the night at around 1 o’clock. Police conducted investigation and filed charge sheet.

Appellants abjured the guilt and pleaded innocence. The trial Court held that appellants Yashwant and Preetam had killed the deceased. Hence,

they are guilty for commission of offence under Section 302 of the IPC. Other accused persons were the members of unlawful assembly. Hence, they

are also liable to be convicted for commission of offences punishable under Sections 302, 148 and 149 of the IPC. The trial Court awarded sentence

of R.I. for life for commission of offence punishable under Section 302 of the IPC and for three years for commission of offence under Sections 148

and 149 of the IPC.

Learned Senior counsel appearing on behalf of the appellants has submitted that prosecution has failed to explain the injuries suffered by accused

persons also. The incident had happened all of a sudden. Hence, the trial Court has committed an error in convicting the appellants for commission of

offences punishable under Sections 302, 148 and 149 of the IPC. In alternate, learned Senior counsel has submitted that there is allegation that

appellant Preetam had inflicted blow on the head of deceased and two accused persons Yashwant and Gudda @ Chokhelal sustained injuries. Hence,

the appellant Preetam alone would be liable for commission of offence punishable under Section 304 Part-I of the IPC.

Counsel for the State has submitted that appellants entered in the house of deceased. They had inflicted injuries on the person of body of deceased.

Sukhdeo son of deceased also received head injury. Hence, the trial Court has rightly held the appellants guilty for commission of offences punishable

under Sections 302, 148 and 149 of the IPC and awarded a proper sentence.

As per the prosecution story, there was quarrel on the ground of grazing of cattle and in that quarrel, appellants Preetam and Yashwant inflicted

blows of Lathis on the person of deceased. It is also the fact that coaccused Yashwant, Gudda @ Chokhelal lodged a report and they received

injuries. This fact has been proved from the evidence of D. Kumar (DW-1) and Suresh Kumar (CW-1).

Basanti Bai (PW-4) is the wife of deceased. She deposed that accused Yashwant abused Sukhdeo and thereafter, Sukhdeo, Raju and Komal Bai

had taken out cattle from the field of Chamar. They reached at their house and thereafter, they had told the story to their family members. My

husband/deceased Ramcharan went to the house of Yashwant and told him that why he abused Sukhdeo. Ramcharan told that Sukhdeo was not

grazing cattle in your field. He abused Ramcharan and thereafter, Ramcharan came to his house. After sometime, all the accused persons came to

my house. They were armed with lathis. Preetam inflicted blow on the head of Ramcharan. Yashwant also inflicted blow on his head. Thereafter,

other accused persons had beaten Ramcharan. They went to the police station and lodged report at around 1 o’clock. Report is Ex.P/2. Police

prepared spot map. In her cross-examination, she deposed that I did not see that whether Sukhdeo had inflicted injuries to other accused persons.

Sukhdeo (PW-7) son of deceased deposed the same facts as deposed by his mother Basanti Bai (PW-4). He denied the fact that he had beaten

Preetam and Yashwant and incident was happened in front of his house. There are other eye-witnesses of the incident. Chandravati (PW-10)

deposed that accused Preetam inflicted blow on the head of deceased by Lathi. Bhikam (PW-6) has also made the same statement.

Dr. R.S. Chakraverti (PW-12) performed autopsy of the deceased. He deposed that he noticed a lacerated wound of 2.5 cm. x 1.5 cm. x wound

deep on the head of deceased and one injury on right wrist. He further deposed that deceased was died due to injury suffered by him on head. In his

cross-examination, he deposed that he noticed only one injury on the head and due to old age, the bones were weak. Hence, the injury was serious.

Appellants examined Dr. D. Kumar (DW-1), who was posted as Assistant Surgeon at District Hospital, Narsinghpur. He deposed that on

06.04.1994, he examined Yahswant Singh son of Dhan Singh at around 7:15 o’clock and noticed one lacerated wound at left axilla size of 2 cm x

2 cm. x 1 cm. Injury was simple in nature and MLC is Ex.D/2. He further deposed that on the aforesaid date at around 7 O’clock, I also

examined Chokhelal son of Mersingh and noticed one injury on the back side of his chest lacerated wound 3 cm. x 1 cm. and his MLC is Ex.D/3.

Rajesh Pateriya (DW-2), who was reader deposed that he received information and on 07.04.1994, the Court examined one witness Head

Constable Suresh Kumar, who deposed that I was posted in April, 1994 at Police Station, Themi as Head Constable, Mohrir. At around 02:40

O’clock in the night, Yashwant lodged report, which is recorded in Rojnamchasanah. Accused persons Chokhelal and Yashwant were sent for

medical examination. The report is Ex.D/3-A. From the aforesaid evidence, this fact has been proved that accused Yashwant and Gudda also

received injuries in the same incident. This fact has been suppressed by the prosecution. From the evidence of doctor, who performed autopsy of the

deceased, this fact has been proved that deceased received one head injury and there was one injury on his wrist. He died due to head injury.

Hon’ble Apex Court in the case of Mahavir Singh Vs. State of Madhya Pradesh (2016) 10 SCC 220 has held as under in regard to

appreciation of evidence where there is contradiction between medical evidence viz-a-viz ocular evidence:-

“The position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallized to the effect that

though the ocular testimony of a witness has greater evidentiary value vis-Ã -vis medical evidence, when medical evidence makes the ocular

testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes far that

it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.â€​

The Principle of law is that if medical evidence so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence

may be disbelieved.

There is a difference between ocular evidence and medical evidence. The principle of law is that if oral evidence completely ruled out ocular

evidence, then ocular evidence could be ignored. In the present case, the evidence of eye witnesses that other accused persons had also inflicted

injuries on the person of the deceased is contrary to the evidence of doctor, who performed postmortem. Hence, their evidence is not reliable against

other accused persons, except accused Yashwant and Preetam.

The next question is that whether appellants/accused persons would be a member of unlawful assembly. The Apex Court in case of Rattiram and

others Vs. State of Madhya Pradesh and Satyanarayan and others Vs. State of Madhya Pradesh, (2013) 12 SCC 316, wherein it is held as under:-

“Before we proceed to analyse the evidence on this score, we think it appropriate to refer to certain pronouncements pertaining to attractability of

Section 149 IPC. In Baladin and others v. State of Uttar Pradesh, AIR 1956 SC 181 a three-Judge Bench has opined as follows: -

“It is well settled that mere presence in an assembly does not make such a person a member of an unlawful assembly unless it is shown that he

had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under section 142,

Indian Penal Code.â€​

The dictum in the aforesaid case was considered by a four-Judge Bench in Masalti v. The State of Uttar Pradesh, AIR 1965 SC 202, wherein the

Bench distinguished the observations made in the case of Baladin (supra) on the ground that the said decision must be read in the context of special

facts of that case and may not be treated as laying down an unqualified proposition of law. The four-Judge Bench, after explaining the said decision,

proceeded to lay down as follows: -

“It would not be correct to say that before a person is held to be a member of an unlawful assembly, it must be shown that he had committed some

illegal overt act or had been guilty of some illegal omission in pursuance of the common object of the assembly. In fact, S. 149 make it clear that if an

offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that

assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member

of the same assembly, is guilty of that offence; and that emphatically brings out the principle that the punishment prescribed by S. 149 is in a sense

vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.â€​

In Lalji v. State of U.P., (1989) 1 SCC 437, it has been observed that:

“Common object of the unlawful assembly can be gathered from the nature of the assembly, arms used by them and the behaviour of the assembly

at or before scene of occurrence. It is an inference to be deduced from the facts and circumstances of each case.â€​

In Bhargavan and others v. State of kerala, (2004) 12 SCC 414, it has been held that: It cannot be laid down as general proposition of law that unless

an overt act is roved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of an assembly.

The only thing required is that he should have understood that the assembly was unlawful and was likely to commit any of the acts which fall within

the purview of Section 141 IPC.

The Bench emphasised on the word “objectâ€​ and proceeded to state that it means the purpose or design and, in order to make it “commonâ€​, it

must be shared by all.

In Debashis Daw and others v. State of West Bengal, (2010) 9 SCC,111 this Court, after referring to the decision in Akbar Sheikh v. State of W.B.,

(2009) 7 SCC 415, observed that the prosecution in a case of such nature is required to establish whether the accused persons were present and

whether they shared a common object.

In Ramachandran and others v. State of Kerala, (2011) 9 SCC 257, this Court has opined thus: - Thus, this Court has been very cautious in a catena

of judgments that where general allegations are made against a large number of persons the court would categorically scrutinise the evidence and

hesitate to convict the large number of persons if the evidence available on record is vague. It is obligatory on the part of the court to examine that if

the offence committed is not in direct prosecution of the common object, it yet may fall under the second part of Section 149 IPC, if the offence was

such as the members knew was likely to be committed. Further inference has to be drawn as to what was the number of persons; how many of them

were merely passive witnesses; what were their arms and weapons. The number and nature of injuries is also relevant to be considered. “Common

objectâ€​ may also be developed at the time of incident.â€​

In regard to unlawful assembly, the Apex Court in the aforesaid judgment after considering earlier judgments on this point as held that it is

obligatory on the part of the Court to examine that if the offence committed is not in direct prosecution of the common object, it yet may fall under the

second part of Section 149 of the IPC, if the offence was such as the members knew was likely to be committed and it has to be further established

that how many persons of unlawful merely passive witnesses. The number and nature of the injuries in the present case. The deceased sustained only

two injuries. There was a dispute and abusing language was used between the family members of deceased persons and accused persons. Two

accused persons had also sustained injuries. Other accused persons did not inflict any injury on the person of deceased or any other family members.

Hence, in our opinion, other accused persons could not be convicted for commission of offence punishable under Sections 148 and 149 of the IPC. On

the basis of their presence, it cannot be held that they were the members of unlawful assembly.

The next question is that what the offence, appellants Preetam and Yashwant have committed. Evidence is that appellant Preetam had inflicted

blow on the head of deceased and appellant Yashwant also inflicted a blow of Lathi. There was injury on the wrist of deceased, it was caused by hard

and blunt object. From the possession of both the appellants, Lathis were seized. The incident had happened all of a sudden and in a spur of moment.

The Hon'ble Apex Court in case of Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247 has held as under:

“The point falling for consideration is whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the

evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in

altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view,

falls under exception (4) of Section 300 IPC.

To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar vs. Union Territory of

Chandigarh (1989) 2 SCC 217, it has been explained as under:-

To invoke this exception four requirements must be satisfied, namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in

a heat of passion; and (iv) the assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is

it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is

important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the

offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks

up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not

acted cruelly.â€​

Further in the case of Arumugam vs. State, (2008) 15 SCC 590, in support of the proposition of law that under what circumstances exception (4) to

Section 300 IPC can be invoked if death is caused, it has been explained as under:-

“The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender’s having

taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within

Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ‘fight’ occurring in Exception 4 to Section 300 IPC is not

defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in

this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and

more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It

is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of

Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender

has not taken undue advantage or acted in cruel or unusual manner. The expression ‘undue advantage’ as used in the provision means ‘unfair

advantage’.â€​

The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that

have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation.

Injuries as reflected in the post-mortem report also suggest that appellants have not taken “undue advantage†or acted in a cruel manner.

Therefore, in the fact situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are

entitled to the benefit under Section 300 exception (4) IPC.

From the evidence, it is clear that the incident had occurred all of a sudden. There was a sudden fight. No premeditation the act was done in the

heat of passion. The appellant had not taken any undue advantage. Their act was not in cruel manner. Hence, the appellant Preetam is liable to be

convicted for commission of offence punishable under Section 304(I) of the IPC and another accused/appellant Yashwant is liable to be convicted for

commission of offence punishable under Section 324 of the IPC, because injury sustained by the deceased was simple in nature. Both the appellants

were granted suspension vide order dated 05.02.2002. Both the appellants have completed near about 8 years of actual jail sentence and more than 10

years jail sentence including remission. Hence, the appellant Preetam is awarded jail sentence as already undergone 10 years for commission of

offence punishable under Section 304(I) of the IPC. Appellant Yashwant is awarded jail sentence of three years for commission of offence

punishable under Section 324 of the IPC.

Appeal filed by the appellant Nos. 1, 2, 4, 5 and 6 is hereby allowed. Their conviction and sentenced awarded by the trial Court is hereby set aside.

They are acquitted from the charges levelled against them. Their bail bonds stand discharged.

Appeal filed by the appellants No.3 and 7 namely Yashwant Singh and Preetam Singh is hereby partly allowed. Their conviction and sentenced

awarded by the trial Court is hereby set aside. They are convicted and sentenced as mentioned in para 18 of the judgment. They have already

completed the sentence. Hence, there bail bonds are discharged.

Copy of the judgment be sent to the trial Court along with its record for information and necessary compliance.