Rewatiprasad and Others vs State of M. P.

Dwivedi, J.—In this appeal, the above named 4 appellants have challenged their convictions under sections 148 and 302 149 of the I. P. C. for which each of them was sentenced to undergo rigorous imprisonment for two years and imprisonment for life respectively. The sentences have been ordered to run concurrently.

The prosecution case is this: There existed two parties one belonging to the appellants headed by Gariba and the other of the deceased and his brother Prabhu In the year 1962, Gariba and his party assaulted the deceased Parsu which resulted in a prosecution and ultimate aequittal of Gariba and his asnceates. On 14.10.1973. deceased Parsu. Badri (P.W.4) and Ramsingh (P.W. 9) were returning from the night shift of J.C. Mills at about 6.30 P.m. when the appellants and deceased appellant jaipalsingh armed with lathis and iron rods, assaulted Parsu, Badri and Ramsingh near the Tall of Moharsingh (P.W. 11) Jassu (P.W.12) intervened, but he too was assaulted The injured were removed to the police station where Badri (P. W. 4) lodged the F.I.R. Ex. P.5 at 8 a.m.

Dr. D.C. Jain (P.W. 8) examined the following injured persons on 14-10-1973.

(i) Parsu:- As per in Jury report Ex. P.10. he found a lacerated wound and 4 contusions on his person, which could be caused by hard and blunt object. He advised admission of the injured in the hospital for observation and investigation.

(ii) Jassu:- As per injury report Ex. P. 11, he found 2 lacerated wounds, 2 abrassions and 3 contusions on his person which could be caused by hard and blunt object.

(iii) Ramsingh :- As per injury report Ex. P. 12 he found a lacerated wound, an abrassions and 3 contusions on his person which could be caused by hard and blunt object.

Inspite of treatment, Parsu did not gain consciousness and expired after 9 days i.e. on 20-10-1973.

An inquest was held over the dead body of Parsu on 21-10-1973 as per inquest report Ex. P.2

Dr. Jain (P.W. 8) performed the autopsy on the dead body of personal injured which he had found at the time of initial examination faster Ex. P.10. On internal examination. he found a gap of 5" x 1" on the night part to temporal region, small subdural haematoma in the right from regard of brain and fracture of left radius and ulna. These injuries were (sic) in nature. During operation, fracture of right temporal bone was (sic) Parsu died due to the head injury which was fatal in nature and was sufficient to cause death, The injuries could be caused by hard and court object.

The appellants abjured their guilt and pleaded false implication.

The point for decision in this appeal is whether the appellants formed an conlawful assembly with the common object of committing the murder of Parsu.

We have heard Shri J.P. Gupta Advocate for the appellants and Shri M.A. Shah, Dy. Govt. Advocate for the State. We are of the view that Convictions of the appellants are in order.

Before we discuss the prosecution evidence, we may mention that one jaipalsingh was also an accused and alleged to be a participant in the at tack. He too was convicted u/s 148 and 302-149 of the I. P. C. but he has since expired.

Shri J. P. Gupta did not dispute that Parsu is dead and that his death was homicidal Besides the oral evidence, there is the inquest report Ex. P. 2 and the post mortem report Ex. P 9 of Dr Jain (P. W 8) which conclusively established that Parsu had sustained external and internal injuries by hard and blunt object and his death occurred due to the head injury We are therefore, convinced that Parsu is dead and that his death was homicidal.

We will now start with the scrutiny of the prosecution evidence In this case, there is a galaxy of hostile witnesses. They are: Bhoorelal (P. W. 3) named in the F. I. R. Badri (P. W. 4) who had lodged the F. I. R. Mittulal (P W 5), Ramsingh (P. W. 9) who was the injured and Ramjilal (P. W. 14). Though some of these witnesses admitted that a marpit did take place in which Parsu and others were injured, yet they denied that they had seen the assailants or that they were the appellants. The reason for hostility is clear from the evidence of Badri (P. W. 4) who, in para 6, admitted that he had compromised with the appellants and, therefore, he did not want to speak the truth. From this admission, it is apparent that the above named hostile witnesses were purposely suppressing the truth. This further explained why Badri (P. W 4) who lodged the F. I R Ex P. 5, was now disowning its contents No doubt the F. I. R. is not the substantive evidence, but could be used to contradict or corroborate the maker. The hostility of Badri would deprive the prosecution of corroboration, but it is apparent that he was deliberately suppressing the truth like other witnesses, because they have compromised their dispute with the appellants.

There now remains the solitary testimony of Jassu (P. W. 12). The evidence of Dr. Jain (P. W. 8) shows that Jassu had sustained 7 injuries on his person which could be caused by hard and blunt object. Shri Gupta stated that from the presence of injuries on his person, the only inference possible was that he was present at the scene of incident and not that he had either seen the assailants or had recognised them. This cannot be a universal approach to the evidence of an injured person. In Ramaswami Ayyangar and Others Vs. State of Tamil Nadu, it is held that evidence of a person injured in the same transaction is of great value. Thus the evidence of Jassu (P. W. 12) who suffered number of injuries at the time of assault on him, has great evidentiary value.

No doubt Jassu is a solitary witness to the attack, but the law does not require plurality of witnesses. It is permissible to base conviction on the solitary testimony of a witness, provided, he is reliable. Having perused the evidence of Jassu (P. W 12) we are of the view that he is a wholly reliable witness, besides being independent who has no animus against the appellants.

Shri Gupta attacked the evidence of Jassu on the ground that in his initial examination, he spoke having seen the attack on the three injured persons, but in the later part, he confined his having seen the attack on Parsu only and not on Badri (P W. 4) and Ramsingh (P. W. 9). His evidence was further attacked on the ground that he did not know the appellants from before. Regarding the later point, para 5 of the evidence of Jassu shows that he knew the appellants from before and that he himself, being an injured person and his being an independent witness, goes to establish the truthfulness of his version. We find on reason why Jassu who himself was an injured person should leave out the real culprits and implicate imocent persons. From his evidence after considering the draw-backs pointed out to us, we are convinced that Jassu (P. W 12) has remained unshaken in regard to the main plank of the prosecution case, i.e. attack by the appellants on Parsu and Jassu. The evidence of Jassu further shows that the incident took place at about 6 a.m. when there will be sufficient light for recognition of the assailants and Jassu could and no account miss to recognise the assailants, firstly because they were known, had secondly because they were his own assailants. How contradictions on immaterial aspects of the case cannot discredit Jassu on his consistent version that he and Parsu a were the victima at the hands of the assailants who need iron rods and sticks against them. The evidence of Jassu is corroborated by Dr. Jain (P. W. 8) who found injuries on his person and on the person of Parsu which could be caused by hard and blunt object.

Shri Gupta strenuously argued on the basis of the entries in the bed-head ticket that the patient was brought before 6.30 a.m.; while coming back to his residence from the mill and on the way he was beaten by some persons whose names were not known Even from this entry and from other evidence including that of Dr. Jain (P. W. 8). it is apparent that Parsu was unconscious from the beginning till the end and hence he himself was unable to give out the names of the assailants.

Lekhram, uncle of Parsu, is mentioned in the bed head ticket, but he himself is not an eye witness and there is no evidence that Lekhram talked to Jassu (P. W. 12) before the injured was received in the hospital. Jassu stated that he himself had become semi unconscious because of the assault and that Lekhram was not present when he was medically examined. (Para 7) Thus the bed head ticket entry cannot help the defence in wiping out the consistent version of Jassu (P. W 12)

In the aforesaid circumstances, we hold Jassu (P. W. 12) to be a wholly reliable witness and his testimony sufficient to establish that the four appellants were not only his assailants, but were also the assailants of Parsu, the deceased.

Shri Gupta contended that in view of the evidence of Dr. Jain (P. W. 8) the offence even if proved against the appellants, will not go beyond section 304 Part II of the I. P C. In advancing this argument. Shri Gupta contended that the lathis used had no iron shods on them. This argument is of no avail, because Jassu is positive that the lathis and iron rods were used in assaulting him and Parsu Shri Gupta placed reliance on para 15 of the evidence of Dr. Jain that the head injuries are not always fatal, though they are dangerous, to life. It appears that opinion of Dr. Jain in para 4 was lost sight of where he stated that, the victim remained Unconscious till his death and that the injury to the head was fatal and was sufficient to cause death. This opinion is positive in regard to the injuries found on the person of the deceased. The opinion that such injuries are not always fatal, could not help the defence, because in the very next sentence, Dr. Jain stated that these injuries were dangerous to life and as per para 4, they were sufficient to cause death.

In our view the appellants, together With the deceased appellant Jaipalsingh, armed with lathis and iron rods, while attacking Parsu and others, simultaneously, must have the knowledge that the attack by such weapons would result in death Besides, there is no basis to hold that the injuries were either unintentional or accidental. On the other hand, the evidence proved beyond doubt that the attack was deliberate and intentional.

Shri Gupta relied on the following cases to support that the case falls u/s 304 Part II of the I.P.C. We would briefly refer to those cases:

(i) Harjinder Singh alias Jinda Vs. Delhi Administration, . In this case, the appellant found himself one against two the deceased was in couching position presumably to intervene and it was, therefore, held that it could not be said with definiteness that the appellant aimed the blow at this particular part of thigh knowing that it would cut the artery. The appellant had not used the knife While he was engaged in fight, with Dalipkumar and it was used against the deceased who came against him. In these circumstances, intention of the appellant to inflict this particular injury on this particular place was held not proved. The facts of this case are qu te different from the, facts of our case because Parsu and other injured persons were unarmed and the appellants opened simultaneous attack without any provocation from the injured.

(ii) Inder Singh Bagga Singh Vs. State of Pepsu, In this case death occurred after three weeks and there was the doctor''s admission that the injury of that kind was not incurable. The deceased was young and strongly, built man. On these facts, the case was brought u/s 304 Part I of the I.P.C. One of the considerations in reducing the, offence was that the lathi was not having iron shod In our case, 5 persons were on one side against an unarmed Parsu as also, against the unarmed injured persons and they had used iron rods.

(iii) D. Satyanarayana and Another Vs. P.T. Reddy and Others, of this case was used to contend that firearm injury will only establish the presence at the scene of occurrence, but presence alone does not, ensure truthfulness. In this regard. we have already referred to No. 3 jassu (P.W.12) is an independent witness and is named in the F.I.R. (Ext.P.5) His presence as also his being an eye-witness to the attack on Parsu and be himself being the victim of assault at the hands of the appellants could not, therefore, be doubted.

(iv) Ramaswami Ayyangar and Others Vs. State of Tamil Nadu, , In this case, the Doctor did not express any opinion to whether the injuries received by the deceased were sufficient in the ordinary course of nature to cause death. Doctor''s own opinion was that death occurred due to shock and hemorrhage. In our case, Dr. Jain has categorically stated in para 4 that the head injury was fatal and sufficient to cause death.

(v) Hardevsingh and another v. State of Punjab. In this case, the position was entirely different. There were three assailants and two assailants A and C caused simple injuries This indicated that the accused party had not intended either to kill K or to cause any grievous hurt to him. It was also not clear from the evidence that B aimed his Kripan blow at the head of D. Falling of the Kripan on the head of D could not, therefore, be ruled out. In our case, there is no such fact and the attack was deliberate.

(vi) 1978 Criminal Law Reporter (M. P.) Short Motes (Asharam and others v. State of M. P.) In this case, the Doctor did not say that the stab injury was sufficient to cause death in the ordinary course and therefore, conviction u/s 302/149 of the I P. C. was not sustained. Besides this, the Doctor did not state that there was any connection between the stab injury and the cause of death. As stated above Doctor''s opinion in this case is definite that the head injury was fatal and sufficient to cause death.

Shri Gupta further contended that the doctors performing the operation were not examined and relying on M P. Weckly Notes 1976 page 122 (Jatturam and others v. State of M P.) contended that Parsu could have died due to operation and that his death having taken place after 9 days, shows that there was no intention to kill. In this case Dr. Vishnoi (P. W. 12) clearly mentioned that injuries to the intestine did not correspond to any external injury and death of Shivratan would not have taken place but for the operation of the intestine. In these circumstances, it was held doubtful that death had directly resulted from the injuries sustained by the victim in the marpit. In our case, this is not so. Beaides, no question was put to Dr, Jain (P. W.8) who referred to the operation in para 4 of his deposition whether death could be attributed to operation. He is positive that there was an external injury over the right fronto parietal region. The fracture noticed was of the right temporal bone The extra dural haematoma along with bone removed. He clearly mentioned in para 3 of his deposition that bone was removed by operation. No cross examination was directed to ascertain that death could be attributed to the operation The opinion of Dr. Jain remained unshaken that there was an injury to the head accompanied by fracture which was fatal and sufficient to cause death.

In our opinion, the rulings relied upon by Shri Gupta are not applicable to the facts of our case The fact of death having taken place after 9 days is not helpful to the defence because death was the direct consequence of the head injury.

In Rewaram Vs. The State of Madhya Pradesh, , reference has been made to Chilamakur Nagireddy and Others Vs. State of Andhra Pradesh, . Hari Charanilal v. Stare of M. P. 1977 MPLJ 321, and other cases to establish that death has to be the direct consequence of the injuries sustained by The victim. In our case, death was not due to any intervening cause or complication, but the unconsciousness was the direct result of the attack and the head injury being fatal and sufficient to cause death, indicated that the appellants did intend to finish off their victims and did intend to cause injuries as were fatal in nature.

In Bhajan Singh and Others Vs. State of Uttar Pradesh, , it is held as under :

Held that from the commencement of the interception of the complainant''s party by the accused armed with deadly weapons and first accosting of the deceased with a challenging posture upto the running away of the accused together after causing fatal injuries on the deceased, there was no escape from the conclusion that all the accused came and worked with one design and object and they were definitely in the know of the fatal consequences that actually ensued as a result of the conjoint attack to make them all vicariously responsible under S. 149.

Even assuming that the unlawful assembly was formed originally only to beat, it was clearly established in the evidence that the said object was well knit with what followed as the dangerous finale of the beating It was not a case where something foreign or unknown to the object took place all of a sudden. It was the execution of the same common object which assumed the fearful character implicit in the illegal action undertaken by the accused.

Section 149 I. P. C. constituted per se, a substantive offence although the punishment is under the section to which it is tagged being committed by the principal offender in the unlawful assembly known or unknown.

In the aforesaid circumstances, we are of the view that the appellants, along with the deceased appellant Jaipalsingh, formed an unlawful assembly, were armed with iron rods and lathis and in prosecution of their common object, they assaulted Parsu and others and their simultaneous attack by lathis and roc''s must impute knowledge to them that death could occur. The appellants were, therefore, rightly convicted and we find no justification for interference either in the convictions, or the sentences passed thereunder.

For the reasons given above, the appeal fails and is hereby dismissed. Convictions of the appellants Revtiprasad, Vikramsingh, Dhanpal and Ramnarayan under sections 148 and 302 149 of the I. P. C. with sentences of rigorous imprisonment for two years and imprisonment for life respectively to each are confirmed. The sentences shall run concurrently. Appellant Dhanpal is on bail. His bail bonds are cancelled He should surrender to his bail to serve out the sentence.