Rajkishore vs State of Madhya Pradesh

N.K. Gupta, J.—The appellants have preferred the present appeal being aggrieved with the judgment dated 31.10.2000 passed by the learned First Additional Sessions Judge, Sidhi in ST No. 37/1992 whereby, the appellants have been convicted and sentenced as under:

The prosecution case, in short, is that on 16.7.1991 at about 9.00 a.m. the victim Banshpati Ram (PW 14) was going to village Ukarha to attend a function of keertan. On way while he was crossing his field at Village Dewri (Police Station Kamarji, District Sidhi), he found that the appellant Onkar Prasad was removing a mango tree. When Banshpati Ram objected the appellant Onkar Prasad asked him to come nearer but, due to suspicion he remained at the place from where he was complaining. In the meantime, all the accused persons surrounded Banshpati Ram. The appellant Surendra Kumar assaulted him with a farsa on his head and thereafter, other accused persons having farsa, tangi (small axe), lathi (stick) etc. also assaulted him. Satanand, son of Banshapati Ram, rushed to the spot, to save his father, but appellants Onkar Prasad and Surendra Kumar assaulted him with their farsa. Satanand sustained grievous injuries and fell down on the spot. The other accused persons had also assaulted him with different weapons. In the meantime, Chandrika Prasad (PW 13) also reached the spot to save Satanand, then the appellants assaulted him with different weapons. Thereafter, Kunjmaniram (PW 15) intervened and sustained various injuries due to assault caused by the accused persons. Satanand succumbed to the injuries on the spot. Janardhan Prasad (PW 9) went to Police Station Kamarji and lodged FIR Ex. P/24. The Police recovered the dead body of deceased Satanand from the spot and sent it for post mortem. Dr. S.K. Mirani (PW 8) performed the post mortem over the body of the deceased Satanand. He found two injuries caused by sharp edged weapons on the body of deceased. Out of them one was a fatal injury caused at right parietal region under which a fracture of right parietal bone was found. The second injury was simple in nature caused on the back of left shoulder. The brain matter and menenges were also found cut. The deceased died due to head injury and in opinion of Dr. Mirani the death of the deceased was homicidal in nature. Dr. Mirani (PW 9) examined Chandrika Prasad and gave his report Ex. P/15. One incised wound was found on his right elbow whereas, no fracture was found below the wound. Dr. Mirani had also examined Kunjmaniram on the same day and gave his report Ex. P/16. He found blunt injuries at four places on the body of victim Kunjmaniram. The victim sustained a fracture of collar bone on the back side. He also gave an X-Ray report Ex. P/18 in that context. He also examined the victim Banshpati Ram and gave his report Ex. P/19. He found as many as six injuries to Banshpati Ram. Out of them four were incised wounds. His first metacarpal bone of the left hand and fifth metacarpal bone of the right hand was found broken. His X-ray report is Ex. P/22. On investigation the Police collected various articles from the spot and sent by the doctor. One tangi and one gandasa were recovered from appellants Surendra Kumar and Onkar Prasad respectively. All the seized articles were sent to the Forensic Science Laboratory for their forensic investigation. On tangi seized from Surendra Kumar and gandasa seized from Onkar Prasad, blood stains were found. After due investigation a charge sheet was filed before the JMFC, Sidhi who, committed the case to the Court of Sessions and ultimately it was transferred to the learned First Additional Sessions Judge, Sidhi.

The appellants abjured their guilt. They took a plea that actually they were not present at the spot. In alternate it was stated that some of them were assaulted by the victims. In support defence witnesses Dr. B.L. Gupta (DW 1), Bharat Prasad Mishra (DW 2), Dr. Sangram Singh (DW 3) and Shiv Kumar (DW 4) were examined.

After considering the evidence adduced by the parties the learned Additional Sessions Judge convicted and sentenced the appellants as mentioned above.

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

In the present case Janardhan Prasad (PW 9), Saraswati Prasad (PW 11), Gulluwa (PW 12), Chandrika Prasad (PW 13), Banshpati Ram (PW 14) and Kunjmaniram (PW 15) etc. were examined as eye witnesses. Out of them Chandrika Prasad (PW 13), Kunjmaniram (PW 15) and Banaspati Ram (PW 14) were injured eye witnesses whereas, the witness Gulluwa (PW 12) has turned hostile. He has stated that on beginning of the quarrel, he had left the spot and went to his house. Thereafter, he found victims like Chandrika Prasad, Banshpati Ram and Kunjmaniram injured whereas, Satanand had died. In the present case Satanand was killed and various other victims had sustained injuries. The witnesses Chandrika Prasad, Kunjmaniram, Banshpati Ram, Janardhan Prasad etc. have stated that Onkar Prasad and Surendra Kumar each assaulted the deceased Satanand with farsa. Some of the witnesses have stated that Onkar Prasad had a gandasa and he gave a blow of gandasa. In FIR Ex. P/24, it was mentioned that some of the accused had gandasa and some of the accused had farsa in their hands. It was mentioned that Onkar Prasad gave a blow with a farsa on the head of Satanand. However, the investigation officer Sub Inspector Bhaiyalal Dwivedi (PW 16) had recovered a gandasa from the appellant Onkar Prasad and prepared a memo Ex. P/26. In this context the witness Banshpati Ram has stated that the shape of gandasa was similar to that of farsa and in his view there was no difference between farsa and gandasa. Under these circumstances, the minor contradiction relating to name of the weapon may be ignored.

Sub Inspector, Bhaiyalal Dwivedi (PW 16) who prepared the seizure memo Ex. P/26 has given a description of the weapon. It is mentioned that a metallic gandasa was fixed with a bamboo with nut and bolt and was also tied with a metallic wire. Hence by considering the description of the weapon, gandasa was fixed with a bamboo and used as a farsa. Hence if a witness thought that the weapon was a farsa then such confusion could take place if weapon was seen from a distance. Therefore, if some witnesses have stated that the appellant Onkar Prasad had farsa and some of them stated that he had a gandasa, then it makes no difference.

The testimony of the eye witnesses is duly corroborated by the timely lodged FIR Ex. P/24 and post mortem report Ex. P/14 proved by Dr. Mirani (PW 8). According to the eye witnesses the appellants Onkar Prasad and Surendra Kumar gave one blow to the deceased Satanand and Dr. Mirani found the injuries on the deceased at the same places of his body as told by the eye witnesses. Amongst the eye witnesses, three were injured witnesses and therefore, their testimony has more weight. Hence, it is proved that the appellants Onkar Prasad and Surendra Kumar assaulted the deceased Satanand, and the blow given by appellant Onkar Prasad was fatal in nature. Witnesses have stated that all the appellants assaulted Satanand but, Dr. Mirani found only two injuries to the deceased Satanand and therefore, it is apparent that except Onkar Prasad and Surendra Kumar, no appellant assaulted the deceased Satanand.

Similarly, relying on the testimony of the eye witnesses, it is established that the appellant Pramod assaulted the victim Chandrika Prasad with a farsa whereas, Kunjmaniram was assaulted by the appellants Ramniwas, Shivkumar with farsa and stick. Banshpati Ram was assaulted by the appellants Surendra Kumar, Rajkishore, Ramyas, Ramniwas and Surendra Kumar by a farsa and sticks. Hence all of the appellants have participated in different crimes committed on victims Chandrika Prasad, Kunjmaniram and Banshpati Ram.

The appellants took a plea of right of private defence in the case. However, they could not prove their plea. If two counter cases were lodged by the victims against the accused persons for the same incident then evidence of one case cannot be read in another case. If the accused takes a plea of right of private defence then it is the duty of the accused to prove his injury report as well as FIR lodged by him for which the counter case was initiated. If the accused does not prove the documents of the counter case or examine any defence witness then his plea of right of private defence cannot be accepted. In the present case, the various defence witnesses like Dr. B.L. Gupta (DW 1), Bharat Prasad Mishra (DW 2), Dr. Sangram Singh (DW 3) and Shiv Kumar (DW 4) were examined to prove the plea of alibi of the appellants Surendra Kumar and Shiv Kumar whereas, no doctor was examined to prove the injury reports of the appellants. Similarly, no FIR was proved on record to show that any of the appellants had lodged the FIR for the same incident. No witness was examined to prove that the quarrel was started by the victim Banshpati Ram. Under such circumstances, in absence of any evidence, it cannot be said that the victims of the present case were the aggressors and any right of private defence had accrued to the appellants.

The defence witnesses Dr. Sangram Singh (DW 3), Bharat Prasad Mishra (DW 2) and Shiv Kumar (DW 3) were examined to prove the plea of alibi of Surendra Kumar and Shiv Kumar. Bharad Prasad Mishra (DW 2) a teacher in the Primary School, has stated that the appellant Surendra Kumar approached him on 14.7.1997 and told him that his father had expired and a custom of barsi was to be observed therefore, he invited him for that function and he has further stated that Surendra Kumar was sick and he was suffering from dysentery. Dr. B.L. Gupta (DW 1) has stated that he gave prescription in a paper Ex. D/3 to appellant Surendra Kumar. The document is dated 19.7.1991. Thereafter he also gave a certificate Ex. D/4 that appellant Surendra Kumar was suffering from illness since 14.7.1991 upto 19.7.1991. When the appellant Surendra Kumar appeared before Dr. B.L. Gupta on 19.7.1991, then there was no basis for Dr. Gupta to issue such a certificate Ex. D/4 that appellant Surendra Kumar was sick since 14.7.1991. The incident took place on 16.7.1991 whereas, appellant Surendra Kumar showed himself to Dr. B.L. Gupta on 19.7.1991 and therefore, by the documents Ex. D/3 and D/4 and the evidence given by Dr. B.L. Gupta (DW 1), no plea of alibi was established in favour of the appellant Surendra Kumar.

Similarly Shiv Kumar has stated that he was suffering from diarrhoea and fever. On 15.7.1991, he visited house of one Lal Bahadur Singh and his treatment was done by Dr. Sangram Singh. Dr. Sangram Singh (DW 3) has stated that he examined appellant Shiv Kumar on 20.7.1991. He had issued the documents Exs. D/7 and D/8 in favour of appellant Shiv Kumar. According to document Ex. D/7 Dr. Sangram Singh examined Shiv Kumar on 16.7.1991 and prescribed some tablets whereas, he had issued a certificate Ex. D/8 that appellant Shiv Kumar remained ill since 15.7.1991 up to 20.7.1991. No repeat entry was made on the prescription Ex. D/7 that appellant Shiv Kumar met the doctor again after 16.7.1991. The certificate Ex. D/8 issued by Dr. Sangram Singh is dependent upon the information given by the appellant Shiv Kumar. Shiv Kumar was neither admitted in the hospital nor he gave any proof that he remained at Satna on or after 16.7.1991. Under these circumstances, no plea of alibi could be established by the appellant Shiv Kumar that he was not present at the spot at the time of the incident.

For proof of plea of alibi there must be documentary evidence to establish beyond doubt that the accused was not present at the spot when the incident took place. Such cognate evidence could not be produced by appellants Surendra Kumar or Shiv Kumar. The trial Court has rightly disbelieved the plea of alibi taken by these appellants.

By the evidence of the prosecution witnesses especially the eye witnesses, it is established that each of the appellants had participated in the quarrel and assaulted some of the victims. Each of the appellants had weapons like tangi, farsa, gandasa and lathi. Therefore, it is established by the prosecution that each of the appellants had participated in the crime of riot having deadly weapons in their hands. Therefore, the trial Court has rightly convicted all the appellants for offence under Section 148 of I.P.C.

It is true that all of the appellants participated in the crime but, it was for the prosecution to establish that they had a common intention to kill deceased Satanand. Actually the quarrel took place when injured Banshpati Ram prohibited the appellants in removing the tree of mango but, the appellants did not kill the victim Banshpati Ram and therefore, it was clear from the very beginning that all of the appellants had no intention to kill any of the victims. When a quarrel was initiated and the appellants assaulted 2-3 different victims then their common intention cannot be gathered by their general conduct. The deceased Satanand sustained only two injuries caused by appellants Onkar Prasad and Surendra Kumar. It would be apparent that except for these two appellants none of the other appellants assaulted the deceased Satanand and therefore, by their mere presence or their conduct that they assaulted other victims, their common intention cannot be presumed with the accused Onkar Prasad and Surendra Kumar. They had constituted unlawful assembly to assault different persons but, it was not established that they had a common object to kill the deceased Satanand.

It is also stated by the witnesses that the deceased Satanand was not the target of the accused persons. When the appellants had assaulted the victim Banshpati Ram, thereafter Satanand intervened to save him and suddenly Onkar Prasad and Surendra Kumar gave him blows of gandasa and farsa. Under such circumstances, when the deceased Satanand had suddenly intervened during the incident then it cannot be said that the appellants except Onkar Prasad and Surendra Kumar had any common intention with the accused Onkar Prasad to kill Satanand. Under such circumstances, the appellants except Onkar Prasad and Surendra Kumar cannot be convicted for offence under Section 302 of I.P.C. with the help of Section 149 of I.P.C. and the learned Additional Sessions Judge has committed an error of law and facts in convicting all of the appellants for offence under Section 302 read with Section 149 of I.P.C.

It is established by the eye witnesses and Dr. Mirani (PW 8) that a powerful blow of gandasa given by the appellant Onkar Prasad was the cause of death of the deceased Satanand. Saraswati Prasad (PW 11) has stated that blow given by the appellant Onkar Prasad was such a powerful one that after giving the blow Onkar Prasad was unable to remove the farsa from the head of the deceased Satanand and therefore, he used his legs to remove the farsa from his head. Under these circumstances, it is established that the appellant Onkar Prasad gave a single blow to deceased Satanand and caused his death.

It is true that the appellant Onkar Prasad gave a single blow but, looking to the power used by Onkar Prasad that by a single blow he killed the deceased Satanand, his intention is visible. He did not leave any chance to give a second blow for killing Satanand. Hence, it is rightly found by the learned Additional Sessions Judge that the appellant Onkar Prasad had intended to kill the deceased Satanand and therefore, appellant Onkar Prasad has been rightly convicted for an offence under Section 302 of I.P.C.

It is also established by the witnesses that the appellant Surendra Kumar also assaulted the deceased Satanand by a farsa causing an incised wound on back of his left shoulder. Some of the witnesses have stated that the appellant Surendra Kumar assaulted the deceased Satanand subsequent to assault caused by Onkar Prasad whereas, some of the witnesses like Chandrika Prasad (PW 13) have stated that Surendra Kumar assaulted the deceased Satanand first and thereafter, Onkar Prasad assaulted him. The testimony of the witness Chandrika Prasad appears to be acceptable on the basis of the circumstances. When the appellant Onkar Prasad assaulted the deceased Satanand in a forceful manner so that he used his two legs to remove the gandasa which was embedded in the head of the deceased Satanand then thereafter, there was no need for anyone to assault the deceased Satanand any more and therefore, there was no possibility that the appellant Surendra Kumar would have assaulted the deceased subsequently to the assault caused by the appellant Onkar Prasad. Therefore, the testimony of the witnesses can be accepted who, have stated that Surendra Kumar assaulted the deceased Satanand first and thereafter, the appellant Onkar Prasad assaulted the deceased Satanand.

In the beginning of the quarrel the various accused persons assaulted the victim Banspati Ram, causing him fracture of two metacarpal bones and some other simple injuries and therefore, the intention of the unlawful assembly was to cause hurt or grievous hurt to the victims so that they would not raise any further objection. Hence the blow caused by the appellant Surendra Kumar by which a simple injury was caused to the deceased Satanand was given with the intention that the victim may be injured so that he might have not raised any opposition to the appellants. Possibility cannot be ruled out that at that time when Surendra Kumar assaulted the deceased Satanand he was not aware that the appellant Onkar Prasad would give such a forceful blow to the deceased Satanand therefore, though the appellant Surendra Kumar participated in giving a blow to the deceased Satanand but, by his overt act it cannot be held that he had common intention with the appellant Onkar Prasad. After the blow given by appellant Onkar Prasad, appellant Surendra Kumar did not assault deceased Satanand and therefore, it would be improper to say that appellant Surendra Kumar had common intention with co-accused Onkar Prasad to kill deceased Satanand. Hence in absence of any common intention, appellant Surendra Kumar even could not be convicted for offence punishable under Section 302 of I.P.C. with the help of Section 149 of I.P.C.

The trial Court has convicted the appellants for offence under Section 325 read with Section 149 of I.P.C. because the victim Kunjmaniram and Banshpati Ram had sustained fractures caused by hard and blunt object. According to Kunjmaniram he was being assaulted by Ramyas and Rajkishore so that his collar bone was broken whereas, Banshpati Ram had stated he was assaulted by the appellant Surendra Kumar with a farsa on his head whereas, he was assaulted by Rajkishore, Shivkumar, Ramyas and Ramniwas by sticks so that he had sustained fractures of various metacarpal bones in his hands. As discussed above all the appellants had intended to cause hurt or grievous hurt to the victims and therefore, all the appellants were responsible for the act committed by each of them so that the victim Banshpati Ram and Kunjamaniram had sustained grievous injuries. Hence the trial Court has rightly convicted all of the appellants of offence under Section 325 read with Section 149 of I.P.C.

Similarly, Chandrika Prasad and Banshpati Ram had sustained simple injuries caused by a sharp cutting weapon. Chandrika Prasad had stated that Pramod had assaulted him with a farsa causing an injury on right elbow whereas, Banshpati Ram stated that he was assaulted by Surendra Kumar with a farsa on his head. All the appellants had participated in causing hurt and grievous hurt to the victims and therefore, their common intention can be presumed with the appellant Surendra Kumar and Pramod. Hence, the trial Court has rightly convicted all of the appellants of offence punishable under Section 324 read with Section 149 of I.P.C.

The injuries of the various victims like Chandrika Prasad, Kunjmaniram and Banshpati Ram were included under Section 325 and 324 of I.P.C. therefore, it was not necessary for the trial Court to convict the appellants for offence under Section 323 of I.P.C. which was an inferior offence of the same nature. However, the sentence imposed for the aforesaid offences have been directed to run concurrently then there is no effect of conviction and sentence imposed by the trial Court upon the appellants of offence punishable under Section 323 read with Section 149 of I.P.C.

So far as the sentence part is concerned, except the appellant Onkar Prasad all the other appellants have got rid of the conviction under Section 302 read with Section 149 of I.P.C. The trial Court has imposed a minimum sentence of offence punishable under Section 302 read with Section 149 of I.P.C. and therefore, there is no possibility of any interference in the sentence passed of offence under Section 302 read with section 149 of I.P.C. The appellant Onkar Prasad has already undergone the sentence of offence under Sections 148, 325/ 149, 324/ 149 and 323/ 149 of I.P.C., hence there is no need to discuss about his sentence for aforesaid offences. However, with regard to remaining offences under Section 148, Section 324 read with Section 149 and Section 323 read with Section 149 of I.P.C. relating to other appellants, contention of the leaned counsel for the appellants may be accepted that they have faced the trial and appeal since 1991. They were the first offenders where the incident was not pre-planned. The quarrel took place on spur of the moment though they could not prove their defence but, they had also sustained injuries and it was a case of fight from both the sides. They have already suffered a lot and were also required to appear before the various Courts since last 23 years. If their custody period during the pendency of trial and appeal is considered then Shivkumar remained in the custody for 131 days whereas Ramniwas remained in custody for 743 days. The appellants remained in custody for sufficient period and therefore, it would be proper to reduce their sentences to the period for which they remained in custody. However, fine imposed of offence under Section 325 read with Section 149 of I.P.C. may be enhanced.

On the basis of the aforesaid discussion the appeal filed by the appellant no. 4 Onkar Prasad cannot be accepted either on merits or on order of sentence therefore, the appeal filed by appellant no. 4 Onkar Prasad is hereby dismissed. However, as discussed above, it was found that the remaining appellants cannot be convicted of offence under Section 302 read with Section 149 of I.P.C. and therefore, their appeal may be accepted in part. Consequently, the appeal filed by the appellants no. 1 to 3 and no. 5 to 7 is hereby partly allowed. Their conviction and sentence of offence punishable under Section 302 read with Section 149 of I.P.C. are hereby set aside. They are acquitted of these charges. However, their conviction under Sections 148, 325 read with section 149, 324 read with Section 149 and 323 read with Section 149 of I.P.C. is maintained but, sentence is reduced to the period for which they have already undergone. Fine amount of offence under Section 325 read with Section 149 of I.P.C. is enhanced from a sum of Rs. 500/- to a sum of Rs. 2500/-. The aforesaid appellants are directed to deposit the fine amount before the trial Court within two months from today failing which each of them shall undergo for six months additional rigorous imprisonment. If fine is not deposited within two months then the trial Court shall proceed under Section 68 of I.P.C. If fine is deposited then a sum of Rs. 7000/-, Rs. 7000/- and Rs. 1000/- be given to the victim Kunjmaniram and Banshpati and Chandrika Prasad respectively out of the fine amount deposited.

Except the appellant no. 4, remaining appellants are on bail. Their presence is no more required before this Court and therefore, it is directed that their bail bonds shall stand discharged.