Sadhna and another vs State of Madhya Pradesh

This appeal under Section 374(2) of Cr.P.C. has been preferred by the appellants/accused persons against the judgment and conviction dated 10.12.2002 passed by Additional Sessions Judge, Multai in S.T. No.67/2001, whereby the appellants/accused persons have been convicted for commission of offences punishable under Sections 148 of IPC and sentenced to undergo rigorous imprisonment for one year, Section 307 read with Section 149 of IPC and sentenced to undergo rigorous imprisonment for seven years and a fine of Rs.500/- each and Section 302 read with Section 149 IPC and sentenced to undergo imprisonment for life and a fine of Rs.500/- each.

The case of prosecution, in short, is that on 26.08.2000 at about 12:30 pm afternoon complainant Bhaiyalal lodged a report at Police Station Amla, stating that on 25.08.2000 around 6 O'' clock in the evening at village Khagarigaya Vani, Bhaiyalal and his son deceased Preetam were sitting in front of their house. Meanwhile accused Munshilal came and asked Preetam as why he keeps enmity with him. A heated talks and thereafter altercation took place between them and they grappled with each other than Bhaiyalal intervened and tried to pacify the quarrel. Thereafter Munshilal went towards his house giving threatening to see Preetam. After half an hour accused Munshilal and other accused Kali and present appellants came to the house of Bhaiyalal armed with lathi and axe. Appellants and accused persons dragged Preetam out of his house and started beating him by their respective weapons. When Bhaiyalal tried to save Preetam, he was assaulted by accused Kali on his mouth and right eye, he fell down than he was beaten by other accused persons. The wife of Bhaiyalal and daughter-in-law tried to save him. After beating Preetam and Bhaiyalal appellants and other accused persons flew away from the spot.

On the report of Bhaiyalal Police registered FIR (Ex.P/1) and Marg intimation (Ex. P/28). Assistant Sub-Inspector M.L. Dhakad, Police Station Amla (PW-9) conducted the inquest, arrived on the spot and prepared spot map (Ex.P/30), panchanama of dead body (Ex.P/29) and sent the body for postmortem. During investigation the memorandum of accused Jaggulal, Munshilal, Tipadu, Anil, Rupesh, Hari, Saheblal and Kali were recorded and on the basis of memorandum the weapons axe, lathi and stones were recovered and seized. The red earth and plain earth was seized from the spot. Bhaiyalal was also got medically examining. The statement of witnesses were recorded and after usual investigation charge sheet has been filed before the Court.

The appellants/accused persons have been charged under Sections 147, 148, 307 / 149, 302 / 149 of IPC. They abjured guilt and pleaded innocence.

The prosecution has been examined twenty two witnesses whereas appellants have examined seven witnesses in their defence.

The trial Court on appreciation of evidence relying upon the statement of Bhaiyalal, held the appellants and other accused persons Saheblal and Kali guilty for commission of offence punishable under Sections 148, 307 / 149, 302 / 149 and sentenced them as mentioned hereinabove.

It is argued by the learned counsel for the appellants that the case of prosecution is not supported by independent witnesses. Trial Court has relied upon sole testimony of father of deceased Bhaiyalal. His statement contains lot of discrepancies, contradictions and exaggeration. There was a quarrel between Munshilal and Preetam. There is no evidence to show that Munshilal left for his house and again returned with other appellants to the spot. Thus, it is not proved that there was unlawful assembly with an object to kill Preetam. There is no specific act or allegations made against the appellants. The prosecution witness has given general statement regarding participation of appellants in the crime. The trial Court on erroneous appreciation of evidence found the appellants guilty for commission of alleged offence. Therefore, appellants may be acquitted.

Heard arguments and perused the record.

It is not disputed by the defense that deceased Preetam had died due to injuries received by him at the time of incident. This fact is duly corroborated by the statement of Bhaiyalal (PW-1), Ram Prasad (PW-5), Karan (PW-6), Ramesh (PW-7), Sudiya (PW-13), Sumarati (PW-14) and Assistant Sub-Inspector M.L. Dhakad (PW-9). Bhaiyalal

lodged FIR (Ex.P/1) on next day i.e. 26.08.2000 at Police Station Amla. ASI M.L. Dhakad (PW-9) conducted the inquest prepared the panchanama (Ex.P/29) of dead body and sent the body for postmortem.

Sameer Shukla (PW-16) deposed that on 27.08.2000 at Primary Health Centre, Amla he had performed the postmortem of deceased Preetam and found about 14 injuries including contusion, abrasion, bruises over head, face, eye, chest, back, fore arm and shoulder of the deceased. On internal examination he found depressed fracture of frontal bone 4.5 X 1 cms, sub dural heamotama 15 X 10 cms over right temporal and parietal region. The frontal lope of brain was raptured. The injuries of head was dangerous to life which resulted into death of the deceased. The statement of doctor is duly corroborated by postmortem report (Ex.P/45). In cross-examination the defense has not challanged the finding recorded by the doctor in his postmortem report. Therefore, it is rightly found proved by the trial Court that deceased Preetam had sustained injuries at the time of incident and died. His death is homicidal.

Now the question arises whether the appellants have formed an unlawful assembly and being member of the assembly, they have committed murder of deceased in furtherance of common object of the assembly ? In this regard main prosecution witness Bhaiyalal (PW-1) who is the father of the deceased deposed that at the time of incident he was sitting with his son Preetam in his house. The accused Munshilal came there and started quarreling with Preetam. An altercation took place there and they scuffled with each other. Munshilal cried for help saying " Daudo Re Mere Ko Maar Rahe Hai" hearing this other accused persons

arrived there. Accused Munshilal, Jaggu, Sahiblal and Kali were armed with axe and other accused persons/appellants were armed with lathi. Accused persons started beating the deceased by axe and lathi, when Bhaiyalal tried to intervene and save the deceased he was also beaten by accused persons. Sudhiya the mother of the deceased was also present there. She called the witnesses Ishwar and Pramila for help thereafter accused persons ran away. Preetam had expired on the spot. He was brought to his house. During night the accused persons were pelting stones at their house. Next day Bhaiyalal went to Police Station and lodged FIR (Ex.P/1). He had been medically examined by the doctor.

In cross-examination we find material discrepancies in his statement and his statement made under Section 161 of Cr.P.C. In his police statement Bhaiyalal had stated that after initial quarrel, Munshilal went to his house and than returned after half an hour with other accused persons and than dragged the deceased out of his house and assaulted him under a Mahua tree. Whereas in his court statement Bhaiyalal deposed that at the time of initial quarrel Munshilal called other appellants for help and all appellants came there and assaulted the deceased. In view of above discrepancies it is not proved that after an initial quarrel, Munshilal returned home and again came with other accused persons to the house of deceased and beaten him. The place of incident is also changed by this witness. In his court statement he has deposed that the incident took place in front of his house whereas the spot map (Ex.P/44 and Ex.P/30) shows that the incident took place under a Mahua tree, which is about 90 feet away from the house of deceased. In this regard witness Sudhiya (PW-13) and

Sumarati (PW-14) deposed that the incident and beating took place under Mahua tree, which is about 50 steps distant from the house.

Bhaiyalal (PW-1) had deposed that accused Munshi, Jaggu, Saheblal, Kali and Munshilal had assaulted the deceased by axe, but in his police statement he had stated that except Kali other accused persons had assaulted the deceased by lathi. This contradiction creates doubt whether Munshilal, Jaggu, Munshi and Saheblal were armed with axe or not. In postmortem report doctor had not found any injury inflicted by axe or any other sharp edged weapon to the deceased. In cross-examination para-13 he deposed that he was beaten by accused Saheblal and Kali only. This shows that other appellants had not assaulted Bhaiyalal. Bhaiyalal is not able to tell about the specific role of each appellants Jaggulal, Hari, Tipuda, Anil, Rupesh, Kisna, Munshi, Mishra and Hiran in beating the deceased. There is general and vague statement of beating is made against these appellants.

Bhaiyalal deposed in cross-examination para-6 that at the time of incident there was altercation and scuffling between accused Munshi and deceased Preetam. At this time Bhaiyalal, his wife Smt. Sudhiya (PW-13) and mother-in-law Sumarati (PW-14) were present inside the house. Bhaiyalal further deposed that Munshilal cried for help and hearing this ten - fifteen persons gathered there. He has admitted that until other villagers had arrived on the spot he did not went on the spot. This shows that hearing the cry of Munshilal other villagers had arrived on the spot. Sudhiya (PW-13) and Sumarati (PW-14) had also admitted this fact and deposed that hearing the cry of Munshilal about fifty - hundred villagers arrived on the spot.

Other prosecution witnesses Sudhiya (PW-13) and Sumarati (PW-14) deposed that they were present in the house with deceased meanwhile appellant Munshilal came there and dragged the deceased Preetam out of house and took him under Mahua tree and assaulted him by axe and lathi, thereafter other accused persons came there and they all have assaulted the deceased by lathi and axe. When Bhaiyalal tried to intervene he was also beaten by appellants. In cross-examination Sudhiya (PW-13) had admitted that during scuffle between Preetam and Munshilal, Munshilal cried for help and hearing this other villagers arrived on the spot. In cross-examination para-7 she had admitted that there was a sudden fight between Preetam and Munshilal and Bhaiyalal had sustained injuries when he tried to intervene. Sumarati (PW-14) had also deposed the similar facts. Both the witnesses had not stated about any specific act of each appellants. There was a general statement that all appellants had beaten the deceased. There is omission in their police statement regarding the fact that Munshilal had dragged the deceased from his house and taken him to Mahua tree. The trial Court had not relied upon the statements of these two witnesses.

Thus, from above evidence, it appears that initially there was a quarrel between appellant Munshilal and deceased Preetam under Mahua tree. They both were fighting and grappling with each other. Hearing the cry of Munshilal a large number of people and villagers gathered there. When Bhaiyalal tried to intervene he was assaulted by Saheblal and Kali only. This shows that at the time of incident accused Saheblal and Kali had arrived at the spot

and they had beaten the deceased Preetam also. This is a case of sudden fight. It is not proved that appellants came together with Munshilal, armed with lathies and axes to beat the deceased. Therefore, it is not proved that there was an unlawful assembly and appellants were members of the unlawful assembly, there was no meeting of mind or sharing the common object. In the case of sudden fight each accused is liable for his individual act. Except Munshilal, Saheblal and Kali the participation of other appellants in beating of deceased is doubtful. There is general and vague allegations made by witness Bhaiyalal, Sudhiya and Sumarati against them. It is possible that these appellants might have arrived on the spot alongwith other villagers who gathered during the incident. The incident took place in the night and Sudhiya (PW-13) had admitted that there was no light on the spot. In view of aforesaid, considering the material discrepancies in the evidence of prosecution witness as discussed above the case of prosecution becomes doubtful against the other appellants except Munshilal. Accused Saheblal and Kali had withdrawn their appeals.

As far as appellant Munshilal is concerned, it appears that he had a fight with deceased Preetam. It is doubtful whether he was armed with axe at that time. Therefore, intention of Munshilal was only to beat the deceased. It cannot be inferred that he had intended to kill the deceased. It is quite possible that the main accused Saheblal and Kali who arrived on the spot during the quarrel had assaulted the deceased by lathi and killed him. Thus, the individual act of Munshilal would be to cause simple injury to the deceased. There is no common intention because there was a sudden fight. Thus, the trial Court on erroneous appreciation of

evidence had arrived at the conclusion that the appellants being member of unlawful assembly had assaulted and killed the deceased. Therefore, the conviction and sentence awarded by the trial Court to appellants under Sections 302 / 149, 307 / 149 and 148 of IPC is not sustainable.

Consequently, the appeal of accused Jaggulal, Hari, Tipudu, Anil, Rupesh, Kishna, Munshi, Mishra, Hiran is allowed. The conviction and sentence for the offence punishable under Sections 302 / 149, 307 / 149 and 148 of IPC inflicted by the trial Court upon them is hereby set-aside and they are acquitted of the charge of aforesaid offence. Their bail bonds stands discharged.

As far as appellant Munshilal is concerned his conviction under Sections 302 / 149, 307 / 149 and 148 of IPC is set aside and he is acquitted of charge of aforesaid offences. Munshilal is held guilty for commission of offence under Section 323 of IPC and sentenced to undergo imprisonment for 6 months. As he has already suffered imprisonment for about three years, therefore, allowing him set off under Section 428 of Cr.P.C., his sentence is undergone and he also be set at liberty. His bail bond stands discharged.

Consequently, the appeal of Munsilal is partly allowed.