IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR SINGLE BENCH : HON’BLE MR. JUSTICE N.K.GUPTA, J.Criminal Appeal No.2179/1996 Kissu & another VERSUS State of Madhya Pradesh --------------------------------------------------------------------------- Shri S.K.Dixit, counsel for the appellants. Shri Ajay Tamrakar, Panel Lawyer for the State/respondent. ---------------------------------------------------------------------------
JUDGMENT
(Delivered on the 21st day of September, 2012) The appellants have preferred this appeal against the judgment dated 13.11.1996 passed by the learned Additional Sessions Judge, Shahdol in S.T.No.69/1994, whereby the appellant was convicted for the offence punishable under section 304 (Part-I) of IPC and sentenced for 10 years' rigorous imprisonment.
2. Prosecution's case, in short, is that, on 14.11.1993, at about 3 p.m., the deceased Ramesh Baiga went to the village Mahimar to invite his friend Faggu (P.W.2) for dinner. In the evening, when the deceased along with Faggu (P.W.2) were going towards the house of the deceased Ramesh, Sadiya met them on the way. Thereafter, when -:- 2 -:- Criminal Appeal No.2179 of 1996 they were passing by the house of the appellants, Ramesh found that the appellants and other persons were quarreling in the house and therefore, Ramesh went inside to resolve the problem. The appellants objected that the deceased Ramesh entered their house with his shoes on and therefore, a new quarrel started between the appellants and the deceased Ramesh. The appellants and their companions had assaulted the deceased. The appellants assaulted the deceased by rod and sticks. The appellant Kissu assaulted the deceased on chest, whereas the appellant Jagaia assaulted the deceased on back and on nose. The deceased died at the spot. An intimation was given to Jugni Bai (P.W.8), wife of the deceased, who had lodged an FIR, Ex.P/6 at Police Station Umariya. The dead body of the deceased was taken by the police after making a Panchnama Lash, Ex.P/3. His dead body was sent for post-mortem. Dr.A.P.Dwivedi (P.W.6) did the post-mortem upon the body of the deceased and gave a report, Ex.P/5. He found a simple injury on the nose of the deceased but, in the chest an oblique contusion was found on the left side, above the nipple. On opening of the wound, it was found that membrane which covers the heart was filled with blood and injury was caused to the heart of the deceased. Due to collection of blood, the deceased died by heart failure and -:- 3 -:- Criminal Appeal No.2179 of 1996 failure of respiratory system. After due investigation, the police had filed a charge-sheet before the Additional Chief Judicial Magistrate, Umariya against so many persons including the appellants, who committed the case to the Sessions Court, Umariya and ultimately, it was transferred to the Additional Sessions Judge, Umariya.
3. The appellants abjured their guilt. They took a plea that the deceased went inside the house of the appellants to outrage the modesty of Asha, wife of the appellant Kissu. On shouting of Asha, the appellants went to the spot and thereafter, the deceased assaulted the appellant Kissu by a rod and then, Jagaia and other persons came to the spot. Jagaia was also assaulted by the deceased and Lalla by rods and sticks. While running away from the spot, the deceased Ramesh fell in front of the main door and died. In defence, Dr.B.M.Shrivasatava (D.W.1) was examined to prove the injury reports of the appellants Kissu and Jagaia.
4. The learned Additional Sessions Judge, after considering the evidence adduced by the parties, acquitted the appellants from the charges of offence punishable under sections 302 of IPC but, convicted them for the offence punishable under sections 304 (Part-I) of IPC and sentenced them as mentioned above. -:- 4 -:- Criminal Appeal No.2179 o”
5. I have heard the learned counsel for the parties.
6. The learned counsel for the appellants has submitted that initially the FIR was lodged against 10 persons. Out of them 8 were acquitted. Each and every eye witness had narrated the case, according to his own wisdom. It was stated by the witnesses that the deceased was assaulted by a rod but, no injury of rod was found upon the victim. The victim sustained a simple injury on his nose, whereas, injury found on his chest was not grave. No rib was found broken. Under such circumstances, it cannot be said that the assault caused by the appellants was forceful. It was the deceased and his brother Lalla, who started the quarrel in the house. The appellants did not knot as to how the deceased died. Under such circumstances, it is prayed that the appellants be acquitted. In the alternate, it is submitted that the appellants had to face the trial and appeal for the last 18 to 19 years and therefore, looking to their harassment, they should not be punished with a harsh sentence.
7. On the other hand, learned Panel Lawyer has submitted that the evidence given by Faggu (P.W.2) appears to be trustworthy. Injuries caused by the appellant Kissu was fatal in nature. Contusion found on the chest was oblique and therefore, it was struck to the deceased in such -:- 5 -:- Criminal Appeal No.2179 of 1996 a manner that it damaged the wall of the heart from the gap of ribs and therefore, no rib was found broken. It was not proved beyond doubt that the deceased went inside the house of the appellants to outrage the modesty of any woman. On the contrary, it is proved by the witness Faggu (P.W.2) that the appellants and their companions were quarreling, before the entrance of the victim in their house. The trial Court has rightly convicted and sentenced the appellants and no interference is required in the appeal.
8. After considering the submissions made by the learned counsel for the parties and looking to the facts and circumstances of the case, it is to be considered as to whether the appeal filed by the appellants can be accepted?. And whether the sentence directed against the appellants can be reduced?.
9. In the present case, Faggu (P.W.2), Kudiya Bai (P.W.3), Bhalua (P.W.4), Dadani (P.W.5) and Jugni Bai (P.W.8) were examined as eye witnesses. Out of them, the witness Bhalua did not support the prosecution's evidence. Looking to the evidence of the witness Dadani, it appears that he went to call the then Sarpanch Daanbahadur Singh when the quarrel started and therefore, he could not say exactly as to who assaulted the deceased. Similarly, it appears that Jugni Bai (P.W.8) reached the spot, after the -:- 6 -:- Criminal Appeal No.2179 of 1996 death of the deceased and therefore, the incident was seen by only two witnesses namely Faggu (P.W.2) and Kudiya Bai (P.W.3).
10. Kudiya Bai (P.W.3) was sister-in-law of the deceased and reason for her presence at the spot, appears to be unnatural but, her presence at the spot has been shown by the FIR, Ex.P/6 lodged by the complainant Jugni Bai. However, the presence of Lalla Baiga was also shown in the FIR but, it would be apparent from the appreciation of the evidence that Lalla Baiga was not with the deceased from very beginning. He went to the spot, after the death of the deceased. In aforesaid circumstances, the evidence given by Kudiya Bai should be considered with caution.
11. Presence of the witness Faggu (P.W.2) is settled from very beginning. It was mentioned in the FIR that the deceased went to the house of Faggu to invite him for the dinner and therefore, both of them were going to the house of the deceased Ramesh. Thereafter, one Sadiya Kol met with the deceased and the deceased Ramesh, Faggu and Sadiya were talking in front of the house of the appellants. Thereafter, upon hearing the shouts and the quarrel, the deceased went inside the house to resolve the quarrel. Soon after his entrance, Faggu and Sadiya also went inside the house. No abnormality has been brought in the cross- -:- 7 -:- Criminal Appeal No.2179 of 1996 examination of the witness Faggu, who has specifically mentioned that the appellants were the persons, who assaulted the deceased Ramesh. It is true that the witness Faggu has stated that the appellants had sticks in their hands, whereas Kudiya Bai (P.W.3) has stated that the appellant Kissu had a rod in his hand and he assaulted the deceased by that rod on his chest. Looking to the medical evidence, evidence given by Kudiya Bai appears to be more correct. The deceased must have been assaulted by a thin object, so as to injure the heart without causing any fracture to the ribs, whereas an assault by a stick must have injured the ribs and therefore, looking to the medical evidence, the statement given by Kudiya Bai appears to be correct that the appellant Kissu assaulted the deceased by a rod on his chest.
12. In the FIR, the complainant Jugni Bai (P.W.8) had implicated 8 to 10 persons in the case, whereas only two injuries were found on the deceased and therefore, learned Additional Sessions Judge acquitted all other accused persons in the trial. Looking to the injuries caused to the deceased, it appears that initially some exchange of words took place between the parties and thereafter, the deceased was assaulted only twice. He was assaulted by the appellant Kissu by a rod on his chest and the appellant Jagaia also -:- 8 -:- Criminal Appeal No.2179 of 1996 assaulted him by a stick on his nose. The appellants took a defence that the deceased entered in the house to outrage the modesty of Asha, wife of the appellant Kissu but, no suggestion was given to any of the eye witnesses about that fact specifically. It was suggested that the deceased had entered in the house behind one girl Kalli. Neither Asha not Kalli was examined before the trial Court as a defence witness. On the contrary, Asha Bai was made an accused in the case. She could get herself examined as a witness on oath. No FIR was lodged either by Asha Bai or by the appellants about that incident and therefore, defence taken by the appellants is not at all proved. It is not acceptable. No doubt is created in the prosecution's story by the defence story.
13. The appellants took a defence that the deceased Ramesh started assaulting the appellants by a rod. Such a defence, appears to be unnatural and concocted. If Ramesh entered in the house after the girl Kalli then, he had no opportunity to get a rod and to assault the appellants. On the contrary, it was possible for the appellants to assault him. In the house of an unknown person, there was no possibility for the deceased to search out a rod and to assault the residents of that house from his side. Looking to the evidence adduced by the prosecution, it appears that -:- 9 -:- Criminal Appeal No.2179 of 1996 after the death of the deceased Ramesh, Lalla, brother of the deceased Ramesh went to the spot and he assaulted the appellants along with his companions. Therefore, if such injuries of the appellants were proved by Dr.B.M. Shrivasatava (D.W.1) then, it makes no difference to the overt-act of the appellants. If the appellants were assaulted by Lalla etc, after the main incident then, by that assault, no effect would be created to the main incident, in which the deceased Ramesh Baiga died.
14. Under such circumstances, the appellants could not prove their defence and therefore, no right of private defence had accrued to them. The deceased had not done anything by which a sudden or grave provocation could be caused to the appellants. It is proved that the appellants assaulted the deceased by a rod and stick. The appellant Kissu assaulted the deceased Ramesh by a rod on his chest causing a fatal injury, whereas, the appellant Jagaia assaulted the deceased by a stick causing him a simple injury.
15. The learned Additional Sessions Judge has rightly found that there was no intention of the appellants to kill the deceased Ramesh. Each of them has given a single blow to the deceased. Out of them, blow given by Jagaia was not fatal. Under such circumstances, offence committed by the -:- 10 -:- Criminal Appeal No.2179 of 1996 appellant Kissu does not fall within the purview of section 304 (Part-I) of the IPC but, looking to the overt-act of the appellant Kissu, it shall fall within the purview of offence punishable under section 304 (Part-II) of IPC. In this context, the judgments passed by Hon'ble the Apex Court in case of “Gurumukh Singh Vs. State of Harayana”., [(2009) 15 SCC 635]. and “Dhan Singh Vs. State of Haryana”. [(2010) 12 SCC 277]., may be referred, in which it is observed that a single Lathi blow was given in a spur of moment, resulting the death of the deceased then, the offence shall fall within the purview of section 304 (Part-II) of the IPC. Under such circumstances, offence of the appellant Kissu falls within the purview of offence punishable under section 304 (Part-II) of IPC.
16. So far as the overt-act of the appellant Jagaia is concerned, he had no knowledge that his companion would assault the victim in such a forceful manner and therefore, his common intention cannot be presumed for the offence punishable under section 304 (Part-II) of IPC. His offence shall be confined to his own overt-act. He had caused a simple injury to the victim by a stick and therefore, he is guilty of offence punishable under section 323 of IPC. In this context, judgment passed by Hon'ble the Apex Court in case of “Laxmanji and another Vs. State of Gujarat”. [(2008) 17 -:- 11 -:- Criminal Appeal No.2179 of 1996 SCC 48]. may be referred, in which it was observed that if the co-accused had no common intention with the main accused then, he would be convicted only for the offence committed by him. Under such circumstances, the appellant Jagaia can be convicted for the offence punishable under section 323 of IPC only.
17. So far as the sentence is concerned, the learned counsel for the appellants has submitted that the appellants have faced the trial and appeal for the last 18 to 19 years and therefore, looking to their harassment, a sympathetic attitude may be adopted. Such a contention, may be accepted for the appellant Jagaia, who remained in the custody for approximately 4½ months during the trial and the fact of his harassment for the last 18 to 19 years, due to trial and appeal, combined with his overt-act, may be sufficient and the appellant Jagaia should not be sent to the jail again but, so far as the overt-act of the appellant Kissu is concerned, his overt-act caused the death of the deceased Ramesh and therefore, he does not deserve to be compensated due to his harassment, which he faced during the trial and appeal that his sentence may be reduced to the period of 4½ months only. In this connection, judgment passed by Hon'ble the Apex Court in case of “Venkatesh Vs. State of Tamil Nadu”., [iR 199.SC 1230]., may be referred, -:- 12 -:- Criminal Appeal No.2179 of 1996 in which the Hon'ble Apex Court had reduced the sentence of the accused convicted for the offence punishable under section 304 (Part-II) of IPC to the period, which he has already undergone in the custody with a heavy fine. Similarly, in case of “Chandalal & others Vs. State of Rajasthan”., [AIR 199.SC 597]., Hon'ble the Apex Court while considering the sentence for the offence punishable under section 304 (Part-II) of IPC, after considering the fact that the appellant had faced the trial and appeal for 20 years, reduced their sentence to the period, which they have already undergone in the custody with a fine of Rs.3,000/- but, in both the cases, custody period of the accused was not in months but, it was in years. Hence, it would be proper to sentence the appellant Kissu for 3 years rigorous imprisonment under the offence punishable under section 304 (Part-II) of IPC. The appellant Kissu is a poor person and therefore, no separate fine may be imposed upon the appellant.
18. On the basis of the aforesaid discussion, the appeal filed by the appellants is hereby partly allowed. Conviction and sentence directed against the appellants for the offence punishable under section 304 (Part-I) of IPC are hereby set aside. Both of them are acquitted from the offence of section 304 (Part-I) of IPC. The appellant Kissu is -:- 13 -:- Criminal Appeal No.2179 of 1996 convicted for the offence punishable under section 304 (Part- II) of the IPC and sentenced for 4 years rigorous imprisonment. His custody period will be adjusted towards the sentence imposed upon him. The appellant Jagaia is convicted for the offence punishable under section 323 of IPC and imposed with a sentence of rigorous imprisonment, which he has already undergone in the custody.
19. The appellants are on bail. Their presence is no more required before this Court. However, it is directed that bail bonds furnished by the appellant Jagaia shall stand discharged. The appellant Kissu is directed to surrender before the trial Court forthwith, so that he may be sent to the jail for serving the remaining jail sentence.
20. Copy of the judgment be sent to the trial Court along with its record for information and compliance. (N.K.GUPTA) JUDGE Pushpendra 21/9/2012