Sunderlal and Others vs State of M.P.

U.C. Maheshwari, J.—On behalf of the appellants/ accused this appeal has been directed u/s 374(2) of Cr. P.C. being aggrieved by the judgment dated 17.1.1996 passed by 1st Additional Sessions Judge Balaghat Camp at Waraseoni in S.T. No. 67/93 whereby appellant No. 1, 2 and 4 were convicted u/s 147 and 323/149 of IPC for RI one year separately in both sections with a direction to run the same concurrently while the appellant No. 3 has been convicted u/s 304-11 and 147 of IPC for RI seven years in earlier section while RI one year in later with a direction to run the sentence concurrently. The facts giving rise to this appeal in short are that on 15.11.1992 at about 20.00 O''clock Yograj (P.W.10) lodged the FIR at Police Station Katangi against the appellants and some other persons contending that today at about 9.00 O''clock in the morning his father Chhotelal (deceased) was taken by accused Pendhari to his residence where Panda Khubilal and other persons were also present. They asked his father Chhotelal to remove his witchcraft created on Raganbai, the wife of Pendhari on which Chhotelal said that he had not carried out such activity. On which the appellants and the co-accused along with the persons present at such place started the beating of said Chhotelal by means of fists and kicks. The same was seen by complainant Yograj and his son Nandkishor, as they were also called. Subsequent to such beating Chhotelal was thrown away on the road where he died in the evening. On the aforesaid information a crime for the offence of Section 148, 302 and 342 of IPC was registered against the appellants and some other named in the FIR On completion of investigation the appellants along with co-accused were charge sheeted. After committing the case to the Sessions Court, on evaluation of charge sheet the charge of Section 147, 148 r/w section 302 and 302/34 of IPC were framed against the appellants and co-accused while the charge of Section 109 r/w section 302 of IPC was framed against co-accused Raganbai. All the accused abjured the guilt on which the trial was held. On appreciation of evidence by acquitting the co-accused Pitamlal, Raganbai and Chainlal from the alleged charges the appellant No. 3 Dhaniram @ Karu was held guilty for the offence of Section 304-11 and 147 of IPC while the other co-accused including the appellants were held guilty for the offence of Section 147 and 323/149 of IPC and they were punished with the above mentioned sentence. Being dissatisfied with such conviction and sentence, appellants have come to this Court with this appeal.

Shri Sankalp Kochar learned appearing counsel of the appellants after taking me through the record of the trial Court argued that the prosecution has utterly failed to prove the alleged charges against any of the appellants by cogent and reliable evidence. The material omissions and contradictions between the case diary statements and the depositions of the examined witnesses have not been considered by the trial Court with proper approach. In continuation he said that the conviction of the appellant No. 3 Dhaniram@ Karu u/s 304-11 of IPC being contrary to the record is not sustainable. By referring the case diary statement of alleged eyewitnesses Nandkishor (P.W.9) Ex. D/2 and Yograj (P.W. 10) Ex. D.3, he said that none of them had stated in such statements that the head of the deceased Chhotelal was forcefully pressed on some wall by the appellant No. 3 Dhaniram by which he sustained the head injury and due to that he died later. In fact in the aforesaid interrogatory statements Ex. D.2 and Ex. D.3 the name of co-accused Khubilal was stated as culprit to cause the aforesaid injury to Chhotelal by pressing his head. But on appreciation such Khoobilal was convicted along with appellant No. 1, 2 and 4 only u/s 147 and 323/149 of IPC as stated above. The trial Court by relying on some part of cross- examination of Yograj (P.W. 10) which came on record in response of suggestive question asked by the defence counsel, which was also contrary to the case diary statement of such witness, held guilty to appellant No. 3 u/s 304-II of IPC. According to him firstly such version being contrary to the initial case of the prosecution and the case diary statement of the said witness could not be relied on to hold the conviction against appellant No. 3 u/s 304-II of IPC. Secondly he said that any answer which come in the deposition in response of some suggestive question asked by the defence counsel could not be a foundation for holding conviction against the accused like appellant No. 3. In support of such argument he also placed his reliance on a reported case of Koli Trikam Jivraj and Another Vs. The State of Gujarat, . He further argued that on taking into consideration the entire evidence led by the prosecution as accepted on its entirety even then the material ingredients of formation of unlawful assembly and of common object are not made out against any of the appellants or other convicted co-accused. In such premises the conviction of the appellants u/s 147 and/or 323/149 of IPC is also not sustainable. It was also argued that as per depositions of the above named eyewitnesses more than two hundred persons were present on the spot, out of them none has supported the prosecution case as independent witness and whosoever witnesses have been examined by the prosecution, except the aforesaid Yograj and Nandkishor no other witness has supported the case of the prosecution. With these submission he prayed for acquittal of the appellants from the alleged charge by setting aside the impugned judgment of the trial Court by allowing this appeal.

On the other hand by justifying the conviction and sentence of the appellants State counsel Shri Yogesh Dhande said that same being based on proper appreciation of evidence led by the prosecution do not require any interference at this stage. In continuation he said that only on account of minor discrepancies in the inter-se deposition of witnesses or some minor contradictions and omissions between case diary statement Ex. D.2 and Ex. D-3 and depositions of Nandkishor (P.W.9) and Yograj (P.W.10) the benefit of acquittal could not be extended to the appellants. However, he fairly conceded that while recording the case diary statement, Yograj and Nandkishor had not made any direct allegation against appellant No. 3 for causing the head injury to the deceased Chhotelal. In fact such allegation was made by them against Khubilal in their case diary statements but on recording the deposition of such witnesses such fact was not stated by them in their inchief but in response of some suggestive questions put by defence counsel, it has come in the cross-examination of said Yogiraj that alleged head injury was sustained by the deceased due to the act of appellant No. 3 Dhaniram @ Karu. In this regard he said that mere ommission of such fact in the case diary statement could not be a ground to discard such part of the deposition of Yograj.

Having heard the counsel at length keeping in view their arguments, I have carefully gone through the record of the trial Court along with the impugned judgment. It is apparent fact on record that the deceased Chhotelal was taken from his residence by Pendhari the husband of acquitted co-accused Raganbai to his residence where besides the appellants and co-accused various other persons were also assembled and in their presence the deceased Chhotelal was asked by Pendhari and Panda Khubilal along with some other persons to get rid of witchcraft created by him on Raganbai, till then no incident was happened but on giving reply by Chhotelal that he could not get rid the same as it was not carried out by him then he was subjected to beating by fists and kicks not only by the appellants but by some other persons also and in such beating deceased Chhotelal sustained the alleged injuries. As per case of the prosecution Yograj and Nandkishor were also present at the place of incident and saw the beating of Chhotelal, their father and grand father respectively. It is also apparent that such incident was happened between 9.00 am to 4.00 p.m. and as per medical evidence during such period the alleged injuries were sustained by Chhotelal. In such premises one thing is apparent that appellant along with so many persons including the convicted co-accused were present on the place of the incident and they also participated in the same. In order to prove the participation of the appellants co-accused and other persons in the alleged incident the prosecution has examined said Nandkishore (P.W. 9) and Yograj (P.W. 10) on recording their depositions they categorically made allegations regarding beating of deceased Chhotelal against the appellants as well as the other implicated co-accused. But neither in the FIR lodged by Yograj nor in the case diary statements of any of the aforesaid witnesses the allegations against appellant No. 3 Dhaniram @ Karu for causing the head injury to the deceased Chhotelal was made, on the contrary such allegation was made in the case diary statement of Yograj against Khubilal (Panda). But at trial on recording the deposition, Yograj has not made such allegation against any specific accused in his inchief but in cross examination in response of suggestive questions of defence in paragraph 13 of his deposition it has come that head injury was caused to Chhotelal by appellant No. 3 Dhaniram @ Karu.

It is settled proposition of law that any material fact or circumstance which is projected by the prosecution at the initial stage of the case is not proved in the same manner and at trial contrary to such material fact some other thing comes in the evidence then such subsequent version being contrary to the initial case of the prosecution could not be considered to hold conviction against the accused like appellant No. 3. In other words the same could not be a foundation to hold guilty to the appellant No. 3 for the offence of section 304-II of IPC. It is apparent fact on record that co-accused Khubilal against whom the allegation for causing the head injury was made in the case diary statement of Yograj on appreciation he has been convicted only for the offence of Section 147, 323/149 of IPC and he was acquitted from the charge of Section 304-II of IPC. It appears from the record that he had already suffered the awarded jail sentence during pendency of trial in judicial custody and in such premises he has not filed any appeal. On the other hand the State has also not filed any appeal against acquittal of these appellants and/or other co-accused from the charge of Section 302 of IPC as well as the acquittal of appellant No. 1, 2 4 and other co-accused from the charge of Section 302 and/or 304-II of IPC. So in absence of any such appeal on behalf of the State after nineteen years from the date of the incident, I do not find fit to interfere in such findings of the trial Court or to remit back the matter to the trial Court in this regard.

In view of aforesaid discussion, it has been established that appellant No. 3 Dhaniram Kara was also situated in the similar circumstances on which the other appellants and co-accused are situated. As per available recorded evidence said Khubilal is also situated in the similar situation while as per case diary statement of Yograj he was situated in some different position but such case diary statement could not be a foundation to draw any inference against him, contrary to the evidence led by the prosecution.

Apart the above, it is apparent from the evidence led by the prosecution and other available papers on the record that initially the alleged incident was not happened due to any act of the present appellants on the contrary the same was happened because of Pendhari the convicted co-accused and his wife Raganbai who has been acquitted by the trial Court. In such premises the Court has to answer the question whether there was any meeting of mind between the appellants and co-accused to cause the alleged injury to the deceased Chhotelal in furtherance of their common object, if answer is positive then Court has to consider further sustainability of impugned conviction of the appellants, whether the same is correct or it requires any modification.

In view of aforesaid discussion, it is apparent that present appellants accompanied with other convicted co-accused so with some other persons had participated in the alleged incident in which the deceased Chhotelal sustained the injuries but in the available evidence it could not be deemed that any of them has participated in the alleged incident having knowledge that due to their any act Chhotelal may die. In such premises, they or any of them could not have been convicted either u/s 302 or 304-II of IPC. In the available circumstances taking into consideration the available ocular evidence and the nature of injury sustained by the deceased the trial Court has not committed any error in holding guilty to the appellant No. 1, 2 and 4 and some other co-accused for the offence u/s 147 and 323/149 of IPC. Hence findings of the trial Court in this regard are hereby affirmed.

In view of aforesaid discussion the conviction of appellant No. 3 Dhaniram@ Kara u/s 304-II of IPC being perverse and contrary to the available evidence is not sustainable, hence the same is hereby set aside and instead it he is also held guilty u/s 323/149 of IPC by maintaining his awarded conviction u/s 147 of IPC. Till this extent the impugned conviction of the appellant No. 3 is hereby modified.

Although the appellants did not have any criminal antecedents or history, as such they are first offender but in the available facts and circumstances even after 19 years of the alleged incident, I am not inclined to extend them the benefit of Probation of Offenders Act, hence the same is not being extended to them.

So far oral prayer of the appellants'' counsel for reducing the jail sentence of the appellant No. 1, 2 and 4 u/s 147 and 323/149 of IPC up to the period for which they have already suffered is concerned, I have found some substance in it. As per record he appellant No. 1 Sunderlal suffered the judicial custody in pendency of trial between 17.11.1992 to 20.7.1993 while appellant No. 2 Ram Prasad suffered such custody between 17.11.1992 to 26.7.1993 and appellant No. 4 Mehtarlal suffered such custody between 17.11.1992 to 26.7.1993. Besides this they also suffered the awarded jail sentence between 17.1.1996 the date of the impugned judgment till passing the order for suspending their jail sentence by this Court vide 12.2.1996. So in such premises, considering the circumstances that alleged incident was happened in the year 1992 and since then the appellants are suffering the mental agony of the present matter and they also did not have any criminal antecedents or record, I deem fit to reduce their awarded jail sentence in both the sections up to the period for which they have already undergone i.e. more than eight months as stated above by imposing some amount of fine with a direction to pay the same to Yograj the son of the deceased Chhotelal.

So far imposition of sentence to the appellant No. 3 is concerned, he had suffered judicial custody in pendency of the trial between 17.11.1992 to 27.1.1994 i.e. near about one year and three months. Therefore, I deem fit to punish him u/s 147 and 323/149 of IPC with the same punishment as awarded to other co-appellants i.e. one year RI in each count separately with a direction to run concurrently and no fine is imposed against this appellant because he has already suffered the jail sentence for more than one year as stated above.

In view of aforesaid discussion, by affirming the conviction of the appellant No. 1, 2 and 4 u/s 147, 323/149 of IPC so also the conviction of appellant No. 3 u/s 147 of IPC, this appeal is allowed in part and by setting a side the conviction and sentence of appellant No. 3 u/s 304-II of IPC he is held guilty for the offence u/s 323/149 of IPC and besides the punishment awarded by the trial Court u/s 147 of IPC he is sentenced for one year RI with a direction to run both the sentence concurrently and considering the circumstance that he has already suffered more than one year in the jail custody, no fine is being imposed against him while the jail sentence of appellant No. 1, 2 and 4 awarded u/s 147 and 323/149 is hereby reduced up to the period for which they have already suffered i.e. more than eight months, as stated above by imposition of fine Rs. 1,000/- on each of the aforesaid offence against each of the appellant No. 1, 2 and 4. The amount of fine is to be deposited by them within sixty days from today in the trial Court, failing in depositing the fine the concerning appellant has so suffer further three months RI and on depositing the fine amount within the aforesaid period the same be given to Yograj (P.W. 10) son of the deceased Chhotelal by calling him in the trial Court through summons. Till this extent the impugned judgment is modified while other findings of the same are hereby affirmed. Appeal is allowed in part as indicated above.