Lakhan vs State of M.P.

Smt. Sushma Shrivastava J.

This judgment shall govern the disposal of Cr. A. No. 668/ 92 and Cr. A. No. 1932/03 arising out of the same judgment dated 24.6.92 passed by Additional Sessions Judge. Multai District Betul in S.T. No. 181/89. Appellants Lakhan and Kailash alongwith one Munna were convicted u/s 302/ 34 of IPC for committing murder of Raju and sentenced to imprisonment for life with fine of Rs. 1,000 each, in default rigorous imprisonment for six months by the impugned judgment. Being aggrieved by the aforesaid conviction and order of sentence, appellant Lakhan preferred Cr. A. No. 668/92, while appellant Kailash filed Cr. A. No. 1932/03. It seems co-convict Munna (reported to have died) did not prefer any appeal.

According to prosecution on 9.8.89 at village Tirmahu, in the evening hours when Raju (hereinafter referred to as ''deceased'') was sitting beneath Guava tree in front of his house & Munna and appellant Kailash were sitting in the nearby house of Bank Rao, his brother-in-law. Babbu came there and entered into some altercation with his son Munna. As the deceased asked them not to make noise. Munna and appellants Kailash and Lakhan alongwith acquitted co-accused Saligram began to assault him. Co-accused Saligram gave him a blow with a Sabbal, while Munna and appellants Kailash and Lakhan gave him Lathi blows. On hearing his cries for help, his mother Bhagwanti, younger brother Kaju, wife Sukiya, sister Rashi and her husband Barik Rao rushed to the place of occurrence and witnessed the incident. They took the deceased inside the Verandah of the house, where he breathed his last in the meantime, the assailants fled away.

The FIR suggesting that appellant Lakhan and his associates had associated the deceased and killed him due to past enmity was lodged by Bhagwanti Bai, the mother of the deceased. Thereupon, an offence was registered against the appellants and two others at Police Station Amla and was investigated. The inquest report was prepared and dead body of the deceased was sent for post-mortem examination. The blood stained and plain earth were seized from the spot. During investigation, Lathi and Sabbal used in the commission of offence were seized from the appellants and co-accused persons. The seized articles were sent for forensic examination. After due investigation, appellants alongwith co-accused persons were prosecuted u/s 302/34 of IPC and put to trial.

Appellants and co-accused persons abjured the guilt and pleaded false implication.

Learned Additional Sessions Judge upon appreciation of the evidence adduced at the trial, acquitted, co-accused Saligram of the charges under 302, 302/34 of IPC, but found appellants Kailash, Lakhan and co-accused Munna guilty u/s 302/34 of the IPC for committing murder of the deceased, convicted and sentenced them as aforesaid.

Learned counsel for both the appellants submitted that the trial court gravely erred in placing implicit reliance upon the inconsistent testimony of related witnesses without due corroboration from the medical evidence. They strenuously contended that in absence of medical opinion as to the cause of death, it could not be held that deceased met homicidal death. Learned counsel for appellant Kailash further urged that the trial court failed to consider that the injuries found on the person of appellant Kailash remained unexplained by the prosecution. It was also submitted that the appellants had no motive and intention to kill the deceased and the alleged incident occurred on the spur of moment in a sudden quarrel and no case u/s 302 of IPC was proved against the appellants.

Learned counsel for the State on the other hand supported the conviction of the appellants and pointed out that there was no reason for the relatives of the deceased to falsely implicate them.

We have gone through the evidence on record. There is evidence of four eyewitnesses. Namely, Sukiya (PW1), Kaju (PW2). Bhagwanti (PW5) and Rashi (PW8), to the effect that appellants Kailash and Lakhan alongwith other convicted person Munna made a joint assault on the body of deceased resulting into his death.

According to Sukiya (PW1), who is the wife of the deceased at the relevant time appellants Kailash, Lakhan and Munna had come near their house and there was some altercation between Munna and his father Babbu causing noise, when the deceased objected to it, appellants Kailash, Lakhan and Munna dragged him near guava tree and Munna assaulted him by Sabbal in his inguinal region, while appellants Kailash and Lakhan assaulted him by means of bamboo sticks on his back and abdomen. According to Kaju (PW2), he had seen Munna assaulting the deceased by Sabbal and appellants Lakhan and Kailash assaulting him by Lathi. As per the statement of Kaju (PW2) his brother, the deceased died on account of injuries inflicted on him by Sabbal.

Bhagwanti (PW5), the mother of the deceased, who also lodged the FIR (Ex.P14), testified that she had seen Lathi in the hands of the appellants and Sabbal (crowbar) in the hands of Munna and also witnessed them assaulting her son, the deceased.

Dr. D. Singh (PW9), who conducted postmortem examination on dead body of the deceased on 11.8.89, found that it was swollen and was in advance putrefaction state and no external injury was visible, all the internal organs were swollen and congested and as the body was in advance putrefaction state, no definite opinion as to cause of death could be given.

Despite extensive cross-examination, no cogent reason to doubt the presence of eyewitnesses on the place of occurrence could be brought on record. Being family members and inmates of the house, it was natural for them to have rushed to the scene located in front of the house only upon hue and cry raised by the deceased.

Although Bhagwanti (PW5), as suggested, was cooking food at the time of occurrence, yet it is clearly reflected from her evidence that her son, who was sitting beneath the guava tree in front of the house, died in the occurrence.

Besides, there is cogent evidence of Sukiya (PW1), the wife of the deceased that she had seen appellants Kailash and Lakhan assaulting her husband by means of bamboo sticks and Munna assaulted him by Sabbal. Although Sukiya (PW1) has been confronted with her police statement (Ex.DW1) on certain points, but there is no contradiction as to her statement regarding assault made by the two appellants by means of stick/lathi on the deceased. Likewise, there are no reasons to disbelieve or discard the statement of Kaju (PW2) and Rashi (PW8) that upon hearing commotion they rushed to the place of occurrence and found their brother Raju was lying on the ground and Munna and appellants, were assaulting him.

In fact, it clearly transpires from the evidence of Sukiya (PW1), Kaju (PW2) and Rashi (PW8) coupled with the evidence of Bhagwanti (PW5) that Raju died in the incident of joint assault made on him by the appellants alongwith Munna.

The principal contention of learned counsel for both the appellants is that in absence of medical evidence as to injuries and cause of death of the deceased, his death could not be held to be homicidal. Reference was also made to the decisions of the Apex Court rendered in the cases of The State of Punjab v. Bhajan Singh and Ors. AIR 1975 SC Page 258. and Bhupendra Nath Prasad v. State of Bihar. AIR 1993 SC Page 300.

In the case of The State of Punjab v. Bhajan Singh (supra), there was no eyewitness of the occurrence and the case was based on the circumstantial evidence, the dead bodies of the deceased persons were also unrecognizable and the doctor could not find the cause of death as the dead bodies were in decomposed state. In aforesaid facts, it was held that the death of the two deceased persons could not be said to be homicidal, likewise, in the case of Bhupendra Nath Prasad v. State of Bihar (supra) also where the case was based on the circumstantial evidence and according to doctor, the death was caused due to cardio respiratory failure either due to taking excess wine or due to poison and Alcoholic smell was also coming from mouth of deceased, the Apex Court held that there was a reasonable doubt as to cause of death.

In the instant case, however, the facts are quite different. As pointed out already, the evidence of Dr. D. Singh (PW9), the Autopsy surgeon indicates that he could not give any definite opinion as to cause of death as the body of deceased was in advance putrefaction state, and the external injuries on the body were not visible. According to him, swelling and bluishness found on the chest of the deceased could be due to injuries or due to putrefaction of the, body. Nevertheless the evidence of Dr. D. Singh (PW9), could not be construed to mean that the death of deceased was not homicidal particularly when there was cogent direct evidence on record that the deceased, who was quite all right before the occurrence, died immediately after the incident of assault made on him by the appellants alongwith Munna by means of Lathi and Sabbal. In the case of Manguli Dei v. State of Orissa AIR 1989 SC Page 483 dealing with an identical situation, the Apex Court held that the evidence of the doctor was not very relevant when there was other overwhelming incriminating evidence against the accused.

As already stated hereinabove, there was direct evidence on record that deceased Raju died consequent to joint assault made on him by the appellants alongwith co-accused Munna by means of Lathi and Sabbal (crowbar). Thus, it could be safely concluded that the deceased met a homicidal death.

Learned counsel for appellant Kailash also submitted that as per the evidence of the doctor (DW1), appellant Kailash also sustained injuries in the incident and a lacerated wound measuring 2" x 1/8" x bone deep was found on his scalp and there was no explanation for injuries caused to appellant Kailash. However, as also discussed by the trial court, there was no evidence that the deceased himself was an aggressor and caused injuries to appellant Kailash or other accused. Needless to add that the suggestions made in this behalf were refuted by Sukiya (PW1), the wife of the deceased.

As regards the non-explanation of injuries found on the person of appellant Kailash, it has been reiterated by the Apex Court in its three Judges Bench decision rendered in the case of Takhaji Hiraji v. Thakore Kubersingh Chamansingh and Ors. 2001 (6) SCC page 144 that it cannot be held as a matter of law or invariably a rule that whenever the accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved.

Thus, in face of the evidence available on record against appellants Kailash and Lakhan and the role attributed to them by the eyewitnesses, we have no hesitation in accepting the finding recorded by the trial Court that Raju died as a result of joint assault made by the appellants Kailash and Lakhan alongwith co-accused Munna by means of lathi and Sabbal.

However, it further transpires from the evidence of the eyewitnesses that the incident occurred when the deceased orally Intervened in the verbal duel between co-accused Munna and his father, a quarrel suddenly ensued in which Munna assaulted him, appellants also gave lathi blows to the deceased in a sudden fight, resulting into death of the deceased. In view of the aforesaid facts, we are of the considered opinion that the Exception 4 to Section 300 would be applicable to the facts of the instant case and the case of the appellants would come within the purview of Section 304 Part I read with Section 34 of IPC. The conviction of appellants Lakhan and Kailash, therefore, deserved to be altered to one u/s 304 Part I read with Section 34 of IPC.

Coming to the question of sentence, as informed, the appellants have already undergone imprisonment for more than ten years and appellant Kailash has also been released by the State Government: therefore, the custodial sentence of ten years with fine of Rs. 1,000 each, as imposed by the trial court would meet the ends of justice.

Consequently, the conviction of appellants Kailash and Lakhan u/s 302 of IPC is altered to one u/s 304 Part I of IPC and the life imprisonment awarded to them is modified and reduced to a term of rigorous imprisonment for ten years. We, however, affirm the sentence of fine of Rs. 1,000 with modification in the term of imprisonment in default of payment of fine to a period of two months only.

Both the appeals stand allowed to the extent indicated above. If the appellants have already served out the sentence of imprisonment imposed on them, they be released forthwith if not required in other case.