Purushottam Patel and others v. State of Madhya Pradesh

As per Rakesh Saksena, J. : — Since the aforesaid appeal as well as revision arise out of the common judgment passed by the Trial Court, both are being disposed of by this common judgment. 2. Appellants have filed Criminal Appeal No. 2015/2006 against the judgment dated 10-10-2006 passed by IInd Additional Sessions Judge, Damoh, in Sessions Trial No. 271/2001 convicting them under sections 304-1/149 and 148 of the indian penal code and sentencing them to Rigorous Imprisonment for 10 years with fine of Rs. 20,000/- and Rigorous Imprisonment for 2 years on each count respectively. 3. Complainant Tajammul Hussain has filed Criminal Revision No. 2232/2006 against the aforesaid accused persons challenging their acquittal under Section 302/149, IPC. Though this revision was filed against all the 23 accused persons tried by the Court below, however, the revision was admitted only against non-applicant Nos. 1 to 6. 4. Facts of the prosecution case are that a dispute existed between the appellants on one side and deceased Rafique on the other over land belonging to one Natthu Lodhi. On 1-12- 2000, at about 11.00 a.m., Jira Bai and Premrani (acquitted co- accused) went to the house of Shafique (P.W. 2) and called him and Rafique, to the house of Moti Patel for resolving the dispute saying that Ramlal Patel and Purushottam Patel had called him. Accordingly, at about 12.30 a.m., Rafique went to the house of Moti Patel on a bicycle. After some time Shafique along with Lalu Ahirwar (P.W. 14) and Kalu Pathan (P.W. 13) also reached there. When they reached near the house of Moti Patel, they saw Rafique standing in the courtyard surrounded by 23 accused persons including the appellants. They all were armed with weapons and were assaulting Rafique. Purushottam Patel, Rajaram and Ghassi had swords, Gajraj had a farsa, Gulab had a ballam Noni Patel had an axe and Ramlal Patel had a gun. Other accused persons assaulted him with fist and kick blows. When Shafique and other persons reached near them, Ramlal Patel fired his gun in the air but when they raised a 'Lalkaar', all the accused persons ran away. They saw bleeding injuries on the body of Rafique. He was squirming and alter some time he expired. 5. The news regarding the incident was received by AS1 Hatta N.P. Tiwari (P.W. 16). He along with police force reached the spot where he recorded Dehati Nalishi (Exh. P-19) given by Shafique (P.W. 12). He also seized blood from the spot. On the basis of Dehati Nalishi, later on First Information Report (Exh. P-18) was recorded at police station. Dead body of Rafique was sent for post-mortem examination. Accused were arrested and weapons were recovered from their possession. After investigation, charge-sheet was filed and case was committed for trial. 6. Defence of the appellants was of denial and false implication. According to them, deceased was of notorious character. In the past, he had been prosecuted for molesting women and for some other offences. On the day of incident he had entered the house of Moti Patel with some ulterior purpose and had been killed inside the house and thereafter his body was thrown outside in the courtyard. Shafique (P.W. 12), Kalu (P.W. 13) and Lalu (P.W. 14) had in fact not witnessed the incident and had been introduced to bolster a false case. Dehati Nalishi (Exh. P-19) was also ascribed at some later stage. 7. At the trial, prosecution case rested mainly on the testimony of eye-witnesses Shafique (P.W. 12), Kalu (P.W. 13), Lalu (P.W. 14) and the medical evidence of Dr. Rakesh Bhardwaj (P.W. 10). Learned Additional Sessions Judge, after trial and upon appreciation of evidence adduced in the case, acquitted the appellants of the charges under Section 302/149, IPC but found them guilty under Section 304-1, IPC and convicted and sentenced them accordingly. However, finding the prosecution evidence insufficient against rest of 17 accused persons, acquitted them of all the charges. 8. Learned Counsel for the appellants submitted that the Trial Court gravely erred in placing implicit reliance on the evidence of the alleged eye-witnesses. They were related to deceased and were interested witnesses. Statement of Kalu under Section 161, Cr.PC was recorded on 27-1-2001, i.e., about one and a half month after the occurrence. Apart from that, learned Counsel submitted that the Trial Court committed error in convicting the appellants under Section 304-1, IPC. since, none of the injury, alleged to have been inflicted by the accused persons, was found on any vital part of the body of deceased, at the most, appellants could have been held liable for the commission of offence under section 304, part ii, ipc. Learned Counsel also placed reliance on Molu and others Vs. State of Haryana, AIR 1976 SC 2499, Sarwan Singh and others Vs. State of Punjab, AIR 1978 SC 1525, Sita Ram and others Vs. State of U.P., AIR 1993 SC 350 and State of U.P. Vs. Satish, AIR 2005 SC 1000. 9. Learned Counsel for the State submitted that the evidence of eye-witnesses was reliable and trustworthy. Merely on the ground of delay in recording the police statement, the evidence of otherwise reliable witness could not be discarded especially when his name was mentioned in Dehati Nalishi recorded immediately after the occurrence. He justified and supported the conviction of the appellants under Section 304-1, IPC. 10. Learned Counsel for the applicant in Criminal Revision No. 2232/2006, on the other hand, submitted that from the circumstances of the case and the evidence on record, a clear case of commission of offence by the accused persons under Section 302/149, IPC was made out, therefore, accused/appellants were liable to be convicted under Section 302/149, IPC and for that purpose the case deserved to be remanded. 11. We have heard the learned Counsel for the parties and have gone through the entire evidence on record. 12. It was no longer disputed that deceased Rafique died of homicidal injuries. It was also reflected from the evidence of Dr. Rakesh Bhardwaj (P.W. 10), who conducted post-mortem examination of the body of deceased and found following injuries in his report [Exh. P-17 (A)]:— (1) Incised wound - over upper part of left leg, below the knee joint 14 cm x 4 cm x 5 cm starting anteriorly covering whole of the back, muscles and blood vessels cut. Both bones cut. (2) Incised wound - 6 cm x 2.5 cm x 1.5 cm over lower part of right forearm, dorsal aspect, blood vessels cut; shaft of right ulna cut in its lower part. (3) Incised wound -.75 cm x.25 cm muscle deep over middle of the right forearm. (4) Linear abrasion - 4.5 cm x.25 cm over antero lateral part of lower middle part of right upper arm. (5) Linear abrasion -10 cm x.25 cm over upper part of right upper arm. (6) Incised wound -.5 cm x.25 cm muscle deep just medial to injury No. 2. (7) Incised wound - over middle part of left forearm 3 cm x 1.5 cm x 2.5 cm. (8) Abrasion - on middle of the left upper arm 6 cm x.25 cm. (9) Haematoma over occipital region of scalp 3 cm x 1 cm. In the opinion of doctor, cause of death of deceased was Cardio respiration as a result of shock due to haemorrhage. 13. Eye-witness Sheikh Shafique (P.W. 12) deposed that on 1-12-2000 at about 11.00 a.m., Jira Bai and Premrani came to his house and told that Ramlal Patel and Purushottam Patel were calling them for a compromise in respect of dispute of land. At about 12.30, his brother Rafique went on a cycle towards the house of Motilal. After about 10-15 minutes, when he, Kalu Pathan and Lalu Ahirwar reached the house of Motilal, they saw accused persons assaulting Rafique. Purushottam, Rajaram and Ghassu Chamar had swords, Gajraj had a farsa, Noni Patel had an axe, Gulab Patel had a spear and Ramlal Patel had a gun. Other accused persons were empty handed. When they were at about 100 feet away from the house of Motilal, they shouted whereupon accused Ramlal fired a gun in the air, but when they reached near, all the accused persons ran away. They saw his brother lying smeared in the blood. There were cut injuries on his leg and both the hands. Rafique could not speak anything and died. He then went to lodge the report with the police. 14. Head Constable Ramswarup Upadhyaya (P.W. 11) stated that an information was received at police station about some quarrel in Village Bori, due to which ASI Tiwari and Constable Ghanshyam proceeded for Village Bori. Dehati Nalishi (Exh. P-19) was brought by Ghanshyam on the basis of which he registered First Information Report (Exh. P-18) on 1-12-2000. Similarly, Assistant Sub Inspector N.P. Tiwari (P.W. 16) deposed that at Police Station, Hatta he received information about the quarrel in Village Bori whereupon he went to the spot. On report by Sheikh Shafique, he registered the crime under sections 147,148,149,302, ipc against 23 accused persons. He recorded Dehati Nalishi (Exh. P-19) as well as merg report (Exh. P-40). He stated that an old man had given information to him at police station about the quarrel and no report was recorded on the said information at Police Station, but he had recorded a brief information in Roznamcha and had proceeded for Village Bori. Thus, the evidence of Sheikh Shafique (P.W. 12) stands corroborated by the evidence of ASI N.P. Tiwari (P.W. 16). 15. Corroborating the evidence of Sheikh Shafique (P.W. 12), Kalu (P.W. 13) stated that at about 12 o'clock when he was going to his filed, Shafique and Lalu met him on way and informed that a panchayat was convened for resolving the dispute about the land of Moti Patel. Then he along with them went to the house of Moti Patel. When he reached there, he saw Purushottam Patel, Gajraj Patel, Gulab and Ghassu Chamar assaulting Rafique by means of swords, farsa, spear, etc. Ramlal Patel, who had a gun, fired it when he saw them approaching to the place of occurrence. When they reached there, accused persons ran away and they saw the body of Rafique lying smeared in the blood. After the occurrence, he went to his filed, but at about 5 o'clock in the evening, Kotwar called him to join the inquest proceedings. Inquest memo (Exh. P-27) was prepared before him and he had signed it. This witness admitted that his statement was recorded by the police about one and half month after the occurrence. According to him, he remained busy at his house and in agricultural operations at his field, but for the first time when police called him he gave his statement. He did not go to lodge the report because the brother of deceased was with him and it was for him to lodge the report. Learned Counsel for the appellants argued that since the police statement of this witness was recorded after an inordinate delay, his evidence was not trustworthy. It is to be seen that the name of this witness was mentioned by the complainant in Dehati Nalishi (Exh. P-19), which was recorded immediately after the incident and that he had also participated in the inquest proceedings, therefore, merely by carelessness or negligence on the part of Investigating Officer in not recording the statement of witness at the earliest, cannot render the evidence of a witness unworthy of reliance only on that account. 16. In State of U.P. Vs. Satish (supra), Supreme Court held "As regards delayed examination of certain witnesses, this Court in several decisions has held that unless the Investigating Officer is categorically asked as to why there was delay in examination of the witnesses the defence cannot gain any advantage therefrom. It cannot be laid down as rule of universal application that if there is any delay in examination of a particular witness the prosecution version becomes suspect. It would depend upon several factors. If the explanation offered for the delayed examination is plausible and acceptable and the Court accepts the same is plausible, there is no reason to interfere". Since no explanation was sought from the Investigating Officer about the delay in recording the statement of this witness, we are unable to hold that the evidence of this witness could be discarded merely on account of delay in recording his police statement. 17. It is also true that Sheikh Shafique (P.W. 12) stated that he had gone to Police Station to lodge the report, but this fact was belied by the evidence of ASI N.P. Tiwari (P.W. 16), who categorically stated that a brief information was given to him at police station by some old man he had recorded that information in the Roznamcha. In our opinion, this discrepancy would not be sufficient to discard the evidence of Sheikh Shafique altogether. 18. Evidence of Sheikh Shafique (P.W. 12) further stands corroborated by the evidence of Lalu (P.W. 14), who stated that though he saw about 20-25 persons assaulting the deceased, but out of them only 8 persons were wielding the weapons and rest of other persons were empty handed. He specifically said that Purushottam Patel had a sword, Gajraj Patel had a farsa, Gulab Patel had a ballarn, Noni Patel had an axe, Rajaram had a sword and Ramlal had a gun. Though this witness stated that the persons, who were empty handed were also assaulting the deceased, but the Trial Court did not find that part of his evidence trustworthy as it was unnatural that when the persons, who were armed with weapons and were assaulting the deceased, other persons, who had no weapons, would also participate in the assault. 19. Trial Court, on appreciating the evidence of aforesaid eye witnesses, concluded that number of persons including other accused persons had assembled for the purpose of resolving the dispute in the Panchayat, therefore, mere presence of all at the spot along with accused persons cannot make them liable for commission of the offence in the absence of proof of their sharing the common object of causing death of Rafique. We are in agreement with the aforesaid finding recorded by the Trial Court. However, the presence of accused/appellants with weapons at the spot indicates their common object of causing death of Rafique. If at all they were interested in resolving the dispute about the land, there was no necessity for them to be armed with lethal weapons. From the evidence of Sheikh Shafique (P. W. 12), Kalu (P. W. 13) and Lalu (P. W. 14), it is clearly established that appellants Purushottam, Noni, Ghassi, Gulab, Gajraj and Rajaram formed an unlawful assembly at the spot having common object to cause injuries of Rafique as a result of which he died. The conclusion in that regard reached by the Trial Court appears to us just and proper and is, therefore, affirmed. 20. Next submission of the learned Counsel for the appellants has been that since no injury was caused by the appellants on any vital part of the body of deceased, their conviction under Section 304-1, IPC was not justified; at the most the appellants might be held liable under section 304, part ii, ipc and their sentence be reduced. On the other hand, learned Counsel for the complainant, submitted that on the basis of evidence of eye-witnesses and the nature of injuries sustained by the deceased, it was clearly established that accused persons were liable to be convicted under Section 302, IPC as their intention to cause death of the deceased was clearly borne out. He, therefore, prayed that the case be remanded to Trial Court. 21. Learned Counsel for the appellants submitted that none of the injuries found on the body of deceased was sufficient in the ordinary course of nature to cause death and that none of the injuries was found on any vital part of the body of deceased. Dr. Rakesh Bhardwaj (P.W. 10) admitted that injury Nos. 3, 4, 5, 6, 7 and 8 found on the body of deceased were simple in nature. He admitted that though injury No. 9 was found on the occipital region of scalp but since there was no fracture, it was also simple in nature. Only injury Nos. 1 and 2 were grievous in nature which were caused by sharp edged weapon. Due to excessive haemorrhage from the injury Nos. 1 and 2 deceased had gone in the state of shock which resulted into his death. Doctor no where stated that the injuries, cumulatively, were sufficient in the ordinary course of nature to cause death. 22. In case of Sarwan Singh Vs. State of Punjab (supra), Supreme Court observed that "if the injuries that are sufficient in the ordinary course of nature to cause death are traced to a particular accused, he will be guilty of an offence under Section 302 without the aid of Section 149, IPC. When the injuries caused are cumulatively sufficient to cause death, it is necessary before holding each of the accused guilty under section 302 read with section 149 to find that the common object of the unlawful assembly was to cause death or that the members of the unlawful assembly knew it to be likely that an offence under Section 302, IPC would be committed in prosecution of the common object". In the case of Sarwan Singh (supra), numerous injuries were caused by sharp edged weapon due to which injured had died, but the Apex Court in view of the fact that the area of the injury could not be said to be a vital part of the body and the injury on the head was only ¼" in depth and had not caused any damage, held that it cannot be said that any of the persons that inflicted injuries intended to cause death or such injuries as were sufficient in the ordinary course of nature to cause death. On a consideration of the circumstances and the nature of the injuries, it was not possible to hold that the common object of the assembly was to cause bodily injury which was sufficient in the ordinary course of nature to cause death. As such it could be said that the common object of the assembly was to cause bodily injury as was likely to cause death which will be an offence under Section 304-1, IPC. However, sentence of accused was reduced to 5 years' Rigorous Imprisonment with fine. 23. In Molu and others Vs. State of Haryana (supra), where one deceased suffered 14 injuries and another deceased suffered 16 injuries including punctured wounds, Apex Court observed that the injuries were caused by lathi and were of minor character. Furthermore, the injuries were not on any vital parts of the body and even those which were on the scalp portion appear to be very superficial. There was nothing to show that the accused intended to cause the deliberate murder of the two deceased persons. There was no evidence to show that any of the accused ordered the killing of the deceased persons or incited or in any way expressed a desire to kill the deceased persons at the spot. In these circumstances, it was held that there was no legal evidence in the case that the accused intended to cause the murder of the deceased. The fact, however, remains that the accused had caused multiple injuries on both the deceased persons on various parts of their bodies and, therefore, they undoubtedly had the knowledge that the cumulative effect of the injuries would result in the death of the deceased. In these circumstances, accused had committed an offence under section 304, part ii of the indian penal code and not one under Section 302, IPC. 24. In Sitaram and others Vs. State of U.P. (supra), Apex Court held :— "4. However, coming to the nature of the offence we find it difficult to convict them under Sections 302/149. The Doctor (P. W. 16) who conducted the post-mortem, found 28 injuries. Only the first three lacerated injuries were on the head and punctured wound Nos. 5,6, 7, 11 and 12 were on the face but the Doctor did not find any internal damage. The Doctor noted that the teeth were artificial and the denture was complete. Only three teeth of the denture were broken. The Doctor even did not say that the injuries cumulatively were sufficient in the ordinary course of nature to cause death. There is no injury on any of the vital organs. This only shows that the common object of the unlawful assembly was only to belabour the deceased, the Manager of the Raja who was getting the land ploughed and according to the accused the ploughing was being done high-handedly. Under these circumstances, we are of the view that it is not safe to convict the appellants under Section 302/249, IPC. Accordingly, we set aside their conviction under Sections 302/149, IPC and sentence of imprisonment for life. Instead we convict them under section 304, part ii, ipc and sentence each of them to undergo seven years' R.I." 25. After bestowing our anxious consideration to the submissions made by learned Counsel for the appellants and in view of the legal position enunciated above, we are of the view that the conviction of the appellants under Section 304-1, IPC was not justified, since neither any single injury found on the body was sufficient in the ordinary course of nature to cause death nor the injuries found on the body, cumulatively, were sufficient in the ordinary course of nature to cause death nor any injury was inflicted on any vital part of the body of deceased. In these circumstances, in our opinion, it could not be held that the injuries by the appellants were caused with the intention of causing death or causing such bodily injury as was likely to cause death of deceased. However, since the appellants wielded weapons like sword, axe, farsa, etc. it can safely be held that they had knowledge that it was likely to cause death of deceased. In these circumstances, the conviction of appellants- under Section 304-1 deserves to be altered to one under section 304, part ii of the indian penal code. 26. We, therefore, allow this appeal only to the extent that the conviction of the appellants is altered from that under section 304-1/149 to under section 304, part 11/149, ipc and their sentences are reduced from 10 years' Rigorous Imprisonment to 7 years' Rigorous Imprisonment. Sentence of fine of Rs. 20,000/- each is also reduced to Rs. 10,000/- per head and in default of payment of fine, appellants shall undergo further Rigorous Imprisonment for a period of one year. Conviction and sentence of appellants under Section 148, IPC is also affirmed. Sentence of imprisonment on both the counts shall run concurrently. 27. In the result, Criminal Appeal No. 2015/2006 is partly allowed and Criminal Revision No. 2232/2006 is dismissed. _____________