Maniram vs State of Madhya Pradesh

N.K. Gupta, J.—The appellant has preferred the present appeal being aggrieved with the judgment dated 25.8.2005 passed by the First Additional Sessions Judge, Chhindwada in ST. No. 170/2004 whereby he has been convicted of offence under Section 302 read with Section 34 of I.P.C and sentenced to life imprisonment with fine of Rs. 500/-; in default of payment of fine R.I of three months.

The prosecution''s case in short, is that, deceased Sumarsi had enmity with the appellant Maniram and co-accused Mishrilal over a land dispute. On 23.3.2004 at about 6.30 p.m Rajesh, son of deceased Sumarsi, was returning home with a herd of goats in Village Churaka Hiri Tola (Police Station Amarwada, District Chhindwada). On way some of the goats strayed in the khaliyan (a place where the ripen crop is collected) and damaged the crop of wheat. Kishan, father of the appellant, abused Rajesh for being negligent. Then deceased Sumarsi came out of the house to confront Kishan. At that point of time appellant Maniram and Mishrilal went inside the house and came back with a lathi (stick) and wooden moosal (column pestle). Mishrilal then gave two blows of wooden moosal on the back of head of Sumarsi whereas, the appellant Maniram gave a blow of lathi on his back. Sumarsi fell down on the ground. Saraswati (PW6), wife of the deceased, Aoliya alias Adalii (PW7) etc. tried to intervene and save the deceased. Ajabsi (PW23) immediately intervened and stopped the accused persons from causing further assault and thereafter, they left Sumarsi on the spot. Ajabsi and Shriram (PW1) took Sumarsi in an unconscious state in the courtyard of his house and thereafter, he was taken on a cot up to Surlakhapa. Thereafter, in a jeep they took Sumarsi to Government Hospital Amarwada but, he died. Dead body of the deceased Sumarsi was sent for post mortem. Dr. A.K. Das (Pw13) had performed postmortem on the body of the deceased Sumarsi and gave his report Ex.P/15. He found two injuries on back of his head caused by a heavy weapon. Below the injuries on head occipital bone was found fractured in pieces. One blunt injury was also found on the back of the deceased. The deceased had died due to head injury. After due investigation a charge sheet was filed before the JMFC, Amarwada who, committed the case to the Sessions Judge, Chhindwada and ultimately, it was transferred to the First Additional Sessions Judge, Chhindwada.

The appellant abjured his guilt. He did not take any specific plea in his defence. However, Dr. S.K. Bindra (DW1), J.N. Singh Baghel (DW2) and Kishan (DW3) have been examined in defence to establish the fact that the appellant was blind and he could not see properly.

The Additional Sessions Judge after considering the evidence adduced by the parties convicted and sentenced the appellant as mentioned above.

We have heard the learned counsel for the parties.

In the present case the appellant tried to show that he was almost blind and therefore, it was not possible for him to assault the deceased. However Dr. Bindra (DW1) and J.N. Singh Baghel (DW2), the officer of the jail, did not confirm the fact that the appellant had any eye sight problem. Kishan (DW3) has stated that his son Maniram is blind. However, such fact could not be corroborated by Shri Baghel (DW2) who, was observing the appellant in the jail and has stated that the behavior of the appellant is normal and he was performing his routine work without any problem. No suggestion was given to any eye witness that the appellant could not see properly. Under such circumstances, the testimony of the witness Kishan (DW3) cannot be believed and the defence evidence led by the appellant cannot be accepted that he was unable to see properly at the time of incident.

In the present case, Saraswati (PW6), Adoliya (PW7), Sunita (PW8), Gopal Prasad (PW10) and Ajabsi (PW23) have been examined as eye witnesses. Out of them Gopal Prasad has accepted that he was away from the spot at the time of incident and therefore, he could not say definitely as to who, assaulted the deceased and by which weapon. Some suggestions were given to these witnesses that at the time of incident, it was dark and therefore, they could not see the actual assailants. However, on considering the answers given by the various witnesses in the cross examination, it would be apparent that when Rajesh came from the field along with the goats there was sunlight. When the assault was caused by the accused persons there was no sunlight but, there was sufficient light so that the witnesses could see the assailants. All the witnesses have stated in one voice that appellant Mishrilal took a wooden moosal from the house of the deceased when the deceased was taken from his house to khaliyan of the appellant. Nobody has stated that the appellant used the wooden moosal. The deceased was promptly taken to the hospital at Amarwada and thereafter, Ajabsi (PW23) had lodged the FIR which was written in Rojnamcha and on the basis of that Rojnamcha the FIR Ex.P/18 was recorded. The testimony of the witnesses is duly corroborated by the timely lodged FIR.

Dr. A.K. Das (PW13) has confirmed that the injuries caused on the deceased as deposed by the eye witnesses and therefore, due to corroboration of medical evidence the testimony of the eye witnesses is rightly believed by the trial Court up to the extent that appellant Maniram gave a blow of lathi on the back of deceased whereas, the co-accused gave two blows of wooden moosal on the back of the head of deceased.

During the trial of the appellant the co-accused had absconded and a separate set of oral evidence was recorded against him, vide judgment dated 24.9.2011 he was convicted and his appeal is also pending, hence it would not be proper to discuss the role of the co-accused Mishrilal in the present appeal. According to the evidence led by the prosecution, it would be apparent that though there was enmity between the parties, the quarrel started suddenly when the goats of the deceased Sumarsi strayed inside the khaliyan of appellant and caused damage to his crop. It is also established that when the appellant and co-accused entered the house of deceased Mishrilal, they had no weapons in their hands. Mishrilal suddenly took a wooden moosal from the house of the deceased and therefore, the appellant did not know about the intention of Mishrilal (co-accused). Appellant gave a single blow with a lathi on the deceased causing a simple injury on his back. There was virtually no force in that blow as no rib was found fractured. It is stated by the witnesses that the appellant continued to assault till the deceased fell down on the ground. However, Dr. Das did not find any third injury on the deceased and therefore, it is not established that the appellant assaulted the deceased more than once. Under such circumstances, whatever would be the intention of the coaccused Mishrilal, the appellant had neither intended to kill the deceased nor to cause him any fatal injury. Looking to the facts and circumstances of the case as well as the overt act of the appellant, his intention can be presumed of offence under Section 325 of I.P.C only.

In this connection the judgment of the Supreme Court in the case of Dharam Pal and others Vs. State of U.P., may be referred wherein it is held that if an accused causes simple injury to the deceased by a lathi and if other accused persons have killed the deceased then it cannot be said that he did share the common intention to murder and therefore, the act of such accused shall fall within the purview of Section 325 of I.P.C.

In the light of the aforesaid judgment, it would be apparent that the appellant did not know that the co-accused would assault with great power resulting into the death of victim. The appellant simply gave a single blow of lathi on the back of deceased and caused only simple injury to him but, when the co-accused took a heavy wooden moosal in his hand then appellant should know that the co-accused could cause a fracture with the help of the heavy weapon and therefore, in the light of the aforesaid judgment of the Apex Court the common intention of the appellant with the co-accused cannot be presumed of offence under Section 302 or 304 of I.P.C. The appellant himself gave a single blow by a lathi to the deceased causing a simple injury and therefore, he did not commit an offence under Section 302, 304 or 325 of I.P.C but, his common intention may be presumed of offence under Section 325 of I.P.C. He should have been convicted of offence punishable under Section 325 read with Section 34 of I.P.C instead of offence under Section 302 read with Section 34 of I.P.C. The trial Court has committed an error in convicting the appellant of offence under Section 302 read with Section 34 of I.P.C.

So far as the sentence is concerned, looking to the offence committed by the appellant he could be sentenced for three to seven years rigorous imprisonment. However, it appears that he remained in the custody for approximately nine years. Under such circumstances, jail sentence of the appellant should be of 7 years which is the period prescribed as a maximum sentence of offence under Section 325 of I.P.C.

On the basis of the aforesaid discussion the appeal filed by the appellant is hereby partly allowed. The conviction as well as the sentence imposed of offence under Section 302 read with Section 34 of I.P.C imposed by the trial Court against the appellant are hereby set aside. He is acquitted from the charge of Section 302 read with Section 34 of I.P.C but, under same head of the charge he is convicted of offence punishable under Section 325 read with Section 34 of I.P.C and sentenced to seven years rigorous imprisonment. There is no need to impose any fine upon the appellant because in lieu of depositing the fine amount the appellant would undergo a default sentence whereas, he has already undergone for more than nine years of his custody in the jail.

The appellant is in jail and therefore, office is directed to arrange for issuance of supersession warrant/release warrant forthwith so that the appellant may be released without any delay.

Copy of the judgment be sent to the trial Court for information and compliance and record of the lower Court be kept in Criminal Appeal No. 2579/2011.