Lakhan vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present appeal being aggrieved with the judgment dated 7.4.2000 passed by the learned Third Additional Sessions Judge, Damoh in ST No. 166/1995 whereby, he has been convicted for offence punishable under Section 302 of IPC and sentenced to life imprisonment and fine of Rs. 5000/-, in default of payment of fine, additional RI for six months.

The facts of the case, in short, are that on 25.9.1995 the appellant and his companions chased one Kishori, brother-in-law of the deceased Laxman at Village Sankuiya, Police Station Ghaisabad, District Damoh. At about 7.30 p.m the victim Kishori entered inside the house of the deceased Laxman. The appellant and the co-accused surrounded the house and therefore, the deceased Laxman came out and requested the assailants to go back to their respective houses. Then the appellant Lakhan assaulted the deceased Laxman on his head by a ballam (spear) from its blunt side. The other accused had also assaulted the deceased Laxman by sticks on various parts of the body like eyes, shoulder and thighs. When Nawal Kishore (PW3) rushed to save the deceased Laxman, then the accused had also assaulted the witness Nawal Kishore by sticks causing him injuries on both the shoulders, back, both thighs and right thumb. The complainant Uma Prasad, son of the deceased Laxman, had lodged an FIR Ex.P/1 at Police Station Hatta and thereafter, the intimation was transferred to the Police Station Ghaisabad, where the case was registered. Dr. S. Nikhar (PW9) examined the deceased Laxman when he was alive and gave his report Ex.P/31-A. The deceased Laxman expired in the hospital. His dead body was sent for post mortem. Dr. O.P. Dubey (PW12) had performed post mortem upon the body of the deceased at District Hospital, Damoh and gave his report Ex.P/33. He found a lacerated wound to the deceased on right frontal region on the left side of the eyebrow. Below that wound he found subdural haemetoma and hemorrhage on right frontal, right parietal and right occipital region. He also found a contusion below the first wound. On opening of the body a depressed fracture of right frontal bone was found. The deceased died due to head injury. After due investigation a charge sheet was filed before the JMFC, Hatta who, committed the case to the Sessions Court and ultimately it was transferred to the IIIrd Additional Sessions Judge, Damoh.

The appellant abjured his guilt. He took the plea that he was falsely implicated due to previous enmity. However, the defence witnesses Digambar Rao (DW1), Jagdish Prasad (DW2), Ghasota (DW4) and Head Constable Suresh Kumar Mishra (DW3) who, though were examined to show that due to non-payment of bill, electricity line to the street lights was disconnected and the deceased was brought dead to the hospital.

The learned Additional Sessions Judge after considering the evidence adduced by the parties acquitted the remaining accused persons of the charge of Section 302 of I.P.C, the co-accused Kanhai, Ratan and Chidami were convicted for offence under section 323 of IP.C relating to the victim Nawal Kishore whereas, the appellant has been convicted and sentenced as mentioned above.

We have heard the learned counsel for the parties at length.

In the present case Uma Prasad (PW1), Nawal Kishore (PW3), Kishorilal (PW11), Ratiram (PW14) and Pritam (PW16) were examined as eye witnesses. They have narrated the entire incident. A lengthy cross examination was done to these witnesses but, nothing could be brought in their cross examination to disbelieve them. The witnesses have stated that the various accused persons chased the witness Kishorilal (PW11) and he went inside the house of the deceased Laxman. Thereafter, Laxman came out of the house to request the appellant and the other accused persons to go back and do not have any quarrel with the witness Kishorilal. Thereafter, the appellant gave a blow of ballam on the head of the deceased Laxman and he fell down. Before the trial Court the appellant and other accused persons took the plea that the incident took place at about 7.30 p.m and there was no arrangement of street light in the village therefore, the witnesses could not see the actual culprit. In this context the witnesses Digambar Rao (DW1) and Jagdish Prasad (DW2) were examined. These witnesses have proved that the connection to street lights was cut due to non-payment of electricity bill by Panchayat. However, they could not prove beyond doubt that there was a power cut at the time of incident. By various documents of Panchayat, it could not be proved that there was a power cut at the time of incident. It was for the appellant to bring the record of MPEB to show that there was a power cut in the village at the time of incident. In this context the defence witness Ghasota (DW4) who, was Kotwar of the Village has accepted that a bulb was affixed in front of the house of Digambar Mahajan where, the incident took place and he could not say that at the time of incident the bulb was illuminated or not, because he was not an eye witness and he was not present at the time of incident.

The injured witness Nawal Kishore (PW3) has categorically specified that he could see the culprits in the light of various bulbs illuminated in the houses of neighbors. Though such version was not told by him in the case diary statement Ex.D/2 but, he claimed that he saw the incident and also he sustained the injuries therefore, his versions relating to availability of sufficient light should be accepted. The incident took place in the month of September at about 7.30 p.m when there should be darkness in the sky but the assailants could be seen by the witnesses with help of the light of bulbs affixed in the houses of neighbors. If the assailants could not be seen by the witnesses then there would be lot of contradictions in evidence given by the witnesses to the fact as to who, assaulted the deceased Laxman on his head. In the present case as many as 11 accused persons were implicated but, all the eye witnesses have stated about the overt act of the appellant that he was the person who, assaulted the deceased Laxman on his head. Under such circumstances, the testimony of the eye witnesses cannot be discarded on the ground that due to darkness they could not see the actual culprit.

Though a lengthy cross examination was done on the eye witnesses but, no material contradiction could be brought in their evidence. It is true that the appellant and other accused persons were chasing the witness Kishorilal (PW11), who had some enmity with the appellant. However, Ratiram and Nawal Kishore appears to be witnesses against whom the appellant could not establish any enmity. Nawal Kishore is an injured witness who, suffered the various injuries caused by the various accused persons and therefore, the testimony of these witnesses could be believed. The testimony of the witnesses was duly corroborated by the FIR Ex.P/1 which was lodged at Police Station, Hatta because the deceased was taken for his treatment to Hatta and at Hatta he was found dead. Therefore, the FIR was lodged at Police Station Hatta initially. Similarly the testimony of the eye witnesses is duly corroborated by Dr. S. Nikhar (PW9), who proved the M.L.C report Ex.P/31-A when the deceased Laxman was brought before him at Community Health Centre, Hatta. He examined the deceased and found that the deceased Laxman was unconscious. His face was covered with blood. Mainly one lacerated wound was found on right forehead of the deceased and he was referred for treatment. Dr. Nikhar has proved that the deceased was alive when he was brought before him at Hatta. Dr. S. Nikhar (PW9) has examined the deceased Laxman at 1.15 a.m and the FIR Ex.P./1 was lodged at 0.05 a.m on that day. Looking to the condition of the deceased it was for his attendants to take him to the hospital at the earliest and therefore, if some time was consumed in taking the deceased to Community Health Center, Hatta and thereafter, on assistance of the doctor the FIR was lodged.

In this context a Rojnamcha Ex.P/34 is also proved by the witness Head Constable Mitthulal (PW13) that at about 10.00 p.m he had received an information that the appellant and other accused persons assaulted the deceased Laxman Prasad and they had not permitted the relatives of Laxman Prasad to leave the village and lodge an FIR therefore, a Police force was sent to the village Sankuiya to bring the victim Laxman to the hospital. The entry made in the Rojnamcha Ex.P/34 clearly indicates that the FIR could be lodged with delay because the appellant and the accused persons had surrounded the place of incident so that the complainant etc. were not permitted to go either to the Police Station or the hospital and therefore, looking to the activity of the appellant and the other accused persons, it cannot be said that the FIR was lodged with delay. If entire circumstances are considered then it would be clear that the FIR Ex.P/1 was promptly lodged.

The testimony of the eye witnesses is also corroborated by Dr. O.P. Dubey (PW12) who, performed the post mortem on the body of the deceased. He found one major injury to the deceased Laxman on his forehead, due to which he died. Looking to the various fractures below the injury on forehead, the testimony of the witnesses is confirmed that the appellant assaulted the deceased Laxman on his forehead from the blunt side of his ballam. Witness Pritam (PW16) has categorically stated about the appellant that he was the person who, assaulted the deceased Laxman. In Forensic Science Laboratory''s report Ex.P/40, blood stains were found on article "M" i.e. ballam recovered from the appellant though it was not proved that blood stains found on ballam were of human blood but, presence of the blood on ballam also corroborated the testimony of the eye witnesses.

On the basis of the aforesaid discussion the eye witnesses are believable and therefore, on the basis of the testimony of the various eye witnesses, promptly lodged FIR Ex.P/1, medical report of the deceased Ex.P/31-A proved by Dr. S. Nikhar (PW9) and the post mortem report Ex.P/33 proved by Dr. O.P. Dubey (PW13), it is proved beyond doubt that the appellant was the person who assaulted the deceased Laxman on his forehead causing a fatal and grave injury. If the learned Additional Sessions Judge has found such a conclusion that no error has been committed by him.

The learned counsel for the appellant has submitted that the case of the appellant squarely falls within the purview of Section 304 (Part I) of the I.P.C and the trial Court has committed an error in convicting the appellant for offence under Section 302 of I.P.C. In the light of the submissions made by the learned counsel for the appellant, it is true that the appellant and the accused persons were chasing the witness Kishorilal who entered in the house of his brother-in-law Laxman and thereafter, the deceased Laxman came out to request the assailants to go back and therefore, the appellant was not initially intended to kill the deceased Laxman. His target could be the witness Kishorilal. Also it would be apparent that the deceased Laxman sustained only one injury on his forehead which was fatal in nature. Dr. Nikhar (PW9) has found that there was a superficial abrasion on the left side of the chest of the deceased but, such injury was not confirmed by Dr. O.P. Dubey (PW12) who performed the post mortem. It appears that such superficial abrasion was caused due to transportation of the deceased when he was conscious. According to the post mortem report Ex.P/33 proved by Dr. O.P. Dubey (PW12) the deceased has mainly sustained a lacerated wound on right frontal region and one contusion near the first wound. Both the wounds were adjacent and possibility cannot be ruled out that due to a forceful blow given by the appellant both the wounds would have been caused. None of the eye witnesses have stated that the appellant assaulted for the second time. The appellant had a ballam in his hand and if he had intended to kill the deceased then he could use the pointed side of the ballam while assaulting the deceased. Under such circumstances, it would be apparent that the appellant did not intend to kill the deceased Laxman. However, he had caused a fatal injury to the victim Laxman.

In this context the judgment passed by Hon''ble the Apex Court in the case of Vijay Ramkrishan Gaikwad Vs. State of Maharashtra and Another, may be perused in which Hon''ble the Apex Court referred the judgment in the case of Jai Prakash Vs. State (Delhi Administration), and held that from the mere fact that the injury caused is sufficient in the ordinary course of nature to cause death it does not necessarily follow that offender intended to cause the injury of that nature. It is also held that while considering the offence committed by the accused relating to death of the victim, it is to be considered as to the nature of weapon used, the degree of force released in wielding it, the antecedent relations of the party, the manner in which the attack was made that is to say sudden or pre-meditated, whether the injuries were inflicted during struggle or grappling, number of the injuries inflicted and their nature and the part of the body where the injuries were inflicted are some of the relevant factors. In the light of the law laid by Hon''ble the Apex Court in the case of Vijay Ramkishan Gaikwad (supra) and Jai Prakash (supra) if the facts of this case are examined then, there was no pre-meditation found with the appellant to kill the deceased Laxman. He was chasing the witness Kishorilal and when the deceased Laxman came out of the house he gave a single blow on his head. However, he did not repeat any assault. He had a ballam but, be did not use the weapon from its pointed side. Under such circumstances, the case of the appellant squarely falls within the purview of Section 304 (Part I) of the I.P.C and the appellant could not be convicted for offence under Section 302 of I.P.C. The learned Additional Sessions Judge has committed an error in convicting the appellant for offence under section 302 of I.P.C and therefore, the conviction directed against the applicant can be converted for offence under Section 304 (Part I) of I.P.C.

So far as the sentence is concerned, it is informed by the learned counsel for the appellant that the appellant remained in custody for more than 10 years. He is in custody after pronouncement of the judgment by the trial Court. Though it is a case of culpable homicide not amounting to murder but, looking to the crime committed by the appellant it is not necessary that he may be punished with life imprisonment and therefore, after considering the facts and circumstances of the case and crime committed by the appellant, it would be proper to sentence him for 10 years rigorous imprisonment.

On the basis of the aforesaid discussion, the appeal of the appellant can be partly allowed and consequently, it is hereby partly allowed. The conviction as well as the sentence directed by the trial Court for offence under Section 302 of I.P.C is hereby set aside but under the same charge the appellant is convicted for offence punishable under Section 304 (Part I) of I.P.C and sentenced to 10 years rigorous imprisonment with fine of Rs. 5000/-. In default of payment of fine, the appellant has to undergo for six months additional rigorous imprisonment.

The appellant is in custody and therefore, the Registry is directed to arrange for the issuance of super session warrant so that the appellant may be released without any delay as he has already completed his entire sentence.

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