Kripal Singh S/O Panna Lal, and anr. Vs. the State of Madhya Pradesh. - Court Judgment

Excerpt:
ection 11 (2): [b.n. agrawal, g.s. singhvi & aftab alam, jj] contribution due from employer payment priority given by section 11(2) held, the priority given to the dues of provident fund etc., in section 11 is not hedged with any limitation or condition. rather, a bare reading of the section makes it clear that the amount due is required to be paid in priority to all other debts. any doubt on the width and scope of section 11 qua other debts is removed by the use of expression all other debts in both the sub-sections. this would mean that the priority clause enshrined in section 11 will operate against statutory as well as non-statutory and secured as well as unsecured debts including a mortgage or pledge. sub-section (2) was designedly inserted in the act for ensuring that the provident fund dues of the workers are not defeated by prior claims of secured or unsecured creditors. this is the reasons why the legislature took care to declare that irrespective of time when a debt is created in respect of the assets of the establishment, the dues payable under the act would always remain first charge and shall be paid first out of the assets of the establishment notwithstanding anything contained in any other law for the time being in force. it is, therefore, reasonable to take the view that the statutory first charge created on the assets of the establishment by sub-section (2) of section 11 and priority given to the payment of any amount due from an employer will operate against all types of debts.in the instant case the sugar mill had pledged sugar bags with bank as security for repayment of loan. the attachment and sale of these sugar bags for realisation of p.f dues was challenged by the bank on ground that by virtue of the deeds of pledge executed by the sugar mills, the bank had become owner of the sugar bags and the same could not have been attached and sold for realisation of the amount due under the act.held, in the contract of pawn or pledges the pawnee/pledge has only a special property in the pledge but the general property remains with the pawner/pledgor and wholly reverts to him on discharge of debts. the right to property vests in the pledge only so far as necessary to secure his debt. therefore, the deeds of pledge executed by the management of the sugar mills as security for repayment of loan etc., did not have the effect of transferring of the ownership of the sugar bags to the bank and the recovery officer did not commit any illegality by attaching the same and the high courts was fully justified in directing payment of a portion of the sale price to the assistant commissioner for being appropriated towards the provident fund dues of the workers. section 11(2), 7-q & 14-b: provident fund dues priority in payment over all other debts held, sub-section (2) was inserted in section 11 by amendment act no.40 of 1973 with a view to ensure that payment of provident fund dues of the workers are not defeated by the prior claims of the secured and/or of the unsecured creditors. while enacting sub-section (2), the legislature was conscious of the fact that in terms of existing section 11 priority has been given to the amount due from an employer in relation to an establishment to which any scheme or fund is applicable including damages recoverable under section 14-b and accumulations required to be transferred under section 15 (2). the legislature was also aware that in case of delay the employer is statutorily responsible to pay interest in terms of section 17, therefore, there is no plausible reasons to give a restricted meaning to the expression any amount due form the employer and confine it to the amount determined under section 7-a or the contribution payable under section 8. if interest payable by the employer under section 7-q and damages leviable under section 14 are excluded from the ambit of expression any amount due from an employer, every employer will conveniently refrain from paying contribution to the fund and other dues and resist the efforts of the concerned authorities to recover the dues as arrears of land revenue by contending that the movable or immovable property of the establishment is subject to other debts. any such interpretation would frustrate the object of introducing the deeming provision and non obstante clause in section 11 (2). it cannot be said that the amount of interest payable under section 7-q and damages leviable under section 14-b do not form part of the amount due from an employer for the purpose of section 11(2) of the act, and cannot, therefore, be treated as first charge on the assets of the establishment payable in priority to all other debts within the meaning of section 11 (2). 1. appellants have filed this appeal against the judgment dated 02.07.2004 passed by the additional sessions judge, ashta district sehore in sessions trial no.198/2000 convicting the appellants under section 302 read with section 34 of the indian penal code and sentencing each of them to imprisonment for life with fine of rs.2000/-, in default of payment of fine, further rigorous imprisonment for one year.2. according to prosecution, on 23.06.1999 at about 7:00 p.m. when babulal (deceased) was going back to his house after answering the call of nature, in front of the house of lakhanlal, appellants, armed with lathis, confronted him and after abusing, assaulted him with lathis. he suffered injuries on head, hand, back and legs. hearing his cries, lakhan, bhagwat singh, his brother and anandilal, his nephew and other village people reached there and rescued him. it is said that babulal had rebuked to the son of accused panna, as he did not work in the temple of the village, therefore, pannalal and his sons assaulted babulal. on a bullock cart then on a bus babulal was taken to police station ashta where he lodged the first information report ex.p/27. babulal was then sent to ashta hospital where dr.r.c.gupta (pw-9) examined his injuries and referred him to bhopal for further treatment, however, on way to bhopal, babulal died. body of babulal was brought back to ashta hospital on 24.09.1999. dr. r.c. gupta sent intimation of death of babulal to police. on requisition by police, dr. k.k.chaturvedi (pw-10) conducted postmortem examination of the dead body of babulal and gave his report ex.p/23. during investigation, spot map was prepared. accused persons were arrested and on their information under section 27 of the evidence act, lathis were seized from their possession. after completion of investigation, charge sheet against appellants was filed in the regular court. accused kamal singh being juvenile, his charge sheet was filed in the juvenile court.3. trial court framed charges under section 302 and section 302/34 i.p.c. against the accused persons. accused persons abjured their guilt and pleaded false implication. trial court relying on the evidence of witnesses viz. narmada bai (pw-5), bhagwat singh (pw-11), shadilal (pw-12), anandilal (pw-13), sarjubai (pw-14) and on the first information report (ex.p/27) which was got recorded by the deceased himself, held the accused persons guilty and convicted and sentenced them as mentioned earlier.4. shri sushil kumar tiwari, learned counsel for the appellants, submitted that the evidence of the aforesaid prosecution witnesses was not reliable because they were relative witnesses and their evidence was inconsistent inter se. they in fact had not witnessed the occurrence. he further submitted that trial court committed error in placing reliance on the f.i.r. ex.p/27 allegedly lodged by deceased, as a dying declaration because it was belied by the evidence of witnesses who accompanied the deceased after the incident and also that it was not possible for the deceased to have lodged the first information report because of his serious condition and unconsciousness. on the other hand, shri j.k.jain, learned deputy advocate general for the state, contended that the evidence of f.i.r. lodged by the deceased was reliable as it was amply supported by the evidence of other prosecution witnesses. he supported the judgment of conviction and submitted that no interference was called for in the impugned judgment.5. we have heard the learned counsel of both the sides and perused the impugned judgment and evidence on record carefully.6. it is undisputed that deceased suffered injuries and was taken to police station where he himself lodged the report. s.r.sengar sub inspector (pw-15) deposed that complainant babulal lodged the report and he sent him to hospital ashta for medical examination. narmada bai, bhagwat singh, shadilal and anandilal stated that accused persons assaulted babulal by means of lathis as a result of which he suffered injuries. dr.r.c.gupta examined the injuries of babulal and vide his report ex.p/20 found following injuries on his body:- (i) contusion with swelling on right upper arm. suspected fracture of shaft of right upper humerus.(ii) multiple abrasion on left upper arm. (iii) contusion with abrasion on forehead. (iv) contusion with abrasion on back of right shoulder.(v) abrasion on left forearm.(vi) contusion on chest on left anterior side with abdominal distension. all these injuries had been caused by hard and blunt object. general condition of patient was not fair. patient was referred for the needful to bhopal hospital.7. after death of babulal, postmortem examination of his body was conducted by dr.k.k.chaturvedi who found following injuries on his body:-(i) disfiguration and dislocation of the middle of right upper arm with abrasion.(ii) abrasion on left forearm.(iii) reddish blue bruise on left side of chest at the level of 10th rib, costal region.(iv) abrasion on fronto parietal region. (v) abrasion on right shoulder.all injuries were antemortem in nature. on internal examination, doctor found (i) fracture of right side humerus bone; (ii) rupture of liver; (iii) rupture of spleen. abdominal cavity contained huge amount of dark red blood.in the opinion of doctor, the cause of death of deceased was syncope as a result of abdominal injury causing rupture of liver (vital organ) leading to severe internal haemorrhage and shock.8. from the above evidence, it has been clearly established that the deceased died of homicidal death.9. next question before us is whether it has been established that the accused/appellants caused the death of deceased. narmada bai (pw-5) happened to be the wife of elder brother of deceased. according to her, at about 7-8:00 p.m. while she was cooking and there was dark, a girl namely sarita came and informed her that some persons were beating babulal. all the persons of the house went running and brought babulal in the house. he had received many injuries. though she stated that on her asking babulal disclosed to her that accused panna, kripal,hemraj, kamal and prabhu bai assaulted him by iron rod and lathi, but in cross-examination she denied that babulal was brought to her house in injured condition. she also denied that babulal disclosed to her that accused persons assaulted him. she stated that when she saw babulal, he was smeared in blood and was unconscious. he was not able to speak and could not even drink water. he was immediately taken in a bullock cart to ashta after being lifted directly from the place of incident. she admitted that at the time of occurrence, accused pannalal was drinking tea with shadilal, brother of babulal. the evidence of this witness does not appear to be of any use because neither she saw the incident nor she stuck to her statement that deceased narrated the incident to her and named the accused persons.10. bhagwat singh (pw-11), brother of deceased, deposed that at about 7 o'clock in the evening accused persons assaulted babulal in front of the house of lakhanlal. accused hemraj was armed with an iron rod and others had lathis. he took babulal in a bullock cart and then in a mini-bus to ashta police station. when he was being shifted from ashta hospital to bhopal, he died. according to this witness, when he and other persons reached at the place of incident they saw babulal in seriously injured condition. according to him, when babulal reached the police station he was in unconscious state and they alighted him from the bullock cart and kept in the police station. all the persons who accompanied babulal were present in the police station. first of all police inquired about the incident from him and recorded it. learned counsel for the appellants argued that the evidence of this witness is not reliable as an eyewitness because his presence at the time of occurrence is doubtful. his evidence is belied by the evidence of narmada bai (pw-5) who in her chief-examination deposed that at about 7-8:00 p.m. while she was cooking, anandilal, her husband bhagwat singh (pw-11) were in the house and when sarita came and informed them about the beating of babulal, all of them rushed to the spot. thus, the fact that bhagwat singh witnessed the occurrence becomes suspicious.11. similar is the situation with the evidence of shadilal (pw-12) and anandilal (pw-13). shadilal happened to be the real brother of deceased. according to him, when babulal was assaulted by the accused persons,he was at his house. when there was an uproar in the village, he went at the spot and saw accused persons beating babulal. he then went to his house and called anandilal and narmada bai. according to him, he rescued his brother from the accused persons and took him in the bullock cart. in cross- examination, he admitted that his mother sarju bai had come to his house and informed that accused persons had thrown babulal after beating. anandilal and narmada bai had informed him that accused persons had assaulted babulal. though this witness stated that when he reached at the spot the accused persons were still beating, but his evidence seems doubtful in view of his aforesaid admissions.12. according to anandilal (pw-13), the nephew of babulal, when shadilal went to his house and called him saying that accused persons were beating babulal, he went to the spot and intervened, however, a new story was given by sarju bai (pw-14), the mother of babulal that in the night when she was sitting in her 'usaara', there was noise in the village, she rushed to the place and sprawled over her son. at that time narmada bai was with her. prabhu bai picked up a stone over her and then assailants ran away. according to her, she became unconscious, therefore, she did not know as to what happened to her son. she did not say who assaulted babulal.13. on carefully scanning and scrutinizing the evidence of the aforesaid witnesses, it seems doubtful that they witnessed the occurrence. it seems that after hearing hue and cry in the night witnesses reached at the spot and found babulal lying in the injured condition.14. so far as the acceptability and reliability of the first information report ex.p/27 as a dying declaration is concerned, though sub inspector s.r.sengar (pw-15) stated that babulal (deceased) lodged the first information report at the police station and he recorded the same, but bhagwat singh (pw-11) who accompanied the deceased stated that when he brought his brother to police station he was in an unconscious state and first of all police people inquired from him about the incident and recorded the same. he also stated that all the people who had gone to police station remained present with the deceased in the police station. from the evidence of narmada bai (pw-5) also, it is revealed that when she saw babulal, he was unconscious and was not able to speak. from the spot, he was directly taken in a bullock cart. dr.r.c.gupta (pw-9), who examined the injuries of deceased, deposed that he could not say that when babulal was brought before him he was in senses or not. had he been in a speaking condition, he would have recorded the history after asking him. since he was not in a position to give the history, he did not record the same in his report ex.p/20. in these circumstances, in our opinion, no implicit reliance can be placed on the first information report ex.p/27 as a dying declaration. it is not established beyond doubt that the first information report was recorded by s.r.sengar sub inspector (pw-15) from the information/statement given by the deceased. it has not been established beyond doubt that at the relevant time deceased was in fit condition to speak or make a statement. apart from it, at the time when the alleged report was recorded, deceased was in the company of number of other persons. interference by other persons while the report was being recorded could not be ruled out. in these circumstances, we are of the opinion that no implicit reliance can be placed on the first information report ex.p/27 and no sanctity can be attached to it as a dying declaration.15. for the reasons stated above, we are of the view that the prosecution has failed to establish beyond doubt that the accused/appellants caused the death of deceased. trial court did not appreciate the evidence in correct perspective and recorded the finding of conviction of the appellants. accordingly, the judgment of conviction and sentence passed by the trial court is set aside. appellants are acquitted. appellants be released if not required in any other case.16. appeal allowed.

Judgment:
1. Appellants have filed this appeal against the judgment dated 02.07.2004 passed by the Additional Sessions Judge, Ashta District Sehore in Sessions Trial No.198/2000 convicting the appellants under section 302 read with section 34 of the Indian Penal Code and sentencing each of them to imprisonment for life with fine of Rs.2000/-, in default of payment of fine, further rigorous imprisonment for one year.

2. According to prosecution, on 23.06.1999 at about 7:00 p.m. when Babulal (deceased) was going back to his house after answering the call of nature, in front of the house of Lakhanlal, appellants, armed with lathis, confronted him and after abusing, assaulted him with lathis. He suffered injuries on head, hand, back and legs. Hearing his cries, Lakhan, Bhagwat Singh, his brother and Anandilal, his nephew and other village people reached there and rescued him. It is said that Babulal had rebuked to the son of accused Panna, as he did not work in the temple of the village, therefore, Pannalal and his sons assaulted Babulal. On a bullock cart then on a bus Babulal was taken to Police Station Ashta where he lodged the First Information Report Ex.P/27. Babulal was then sent to Ashta Hospital where Dr.R.C.Gupta (PW-9) examined his injuries and referred him to Bhopal for further treatment, however, on way to Bhopal, Babulal died. Body of Babulal was brought back to Ashta Hospital on 24.09.1999. Dr. R.C. Gupta sent intimation of death of Babulal to police. On requisition by police, Dr. K.K.Chaturvedi (PW-10) conducted postmortem examination of the dead body of Babulal and gave his report Ex.P/23. During investigation, spot map was prepared. Accused persons were arrested and on their information under section 27 of the Evidence Act, lathis were seized from their possession. After completion of investigation, charge sheet against appellants was filed in the regular Court. Accused Kamal Singh being juvenile, his charge sheet was filed in the Juvenile Court.

3. Trial Court framed charges under section 302 and section 302/34 I.P.C. against the accused persons. Accused persons abjured their guilt and pleaded false implication. Trial Court relying on the evidence of witnesses viz. Narmada Bai (PW-5), Bhagwat Singh (PW-11), Shadilal (PW-12), Anandilal (PW-13), Sarjubai (PW-14) and on the First Information Report (Ex.P/27) which was got recorded by the deceased himself, held the accused persons guilty and convicted and sentenced them as mentioned earlier.

4. Shri Sushil Kumar Tiwari, learned counsel for the appellants, submitted that the evidence of the aforesaid prosecution witnesses was not reliable because they were relative witnesses and their evidence was inconsistent inter se. They in fact had not witnessed the occurrence. He further submitted that trial Court committed error in placing reliance on the F.I.R. Ex.P/27 allegedly lodged by deceased, as a dying declaration because it was belied by the evidence of witnesses who accompanied the deceased after the incident and also that it was not possible for the deceased to have lodged the First Information Report because of his serious condition and unconsciousness. On the other hand, Shri J.K.Jain, learned Deputy Advocate General for the State, contended that the evidence of F.I.R. lodged by the deceased was reliable as it was amply supported by the evidence of other prosecution witnesses. He supported the judgment of conviction and submitted that no interference was called for in the impugned judgment.

5. We have heard the learned counsel of both the sides and perused the impugned judgment and evidence on record carefully.

6. It is undisputed that deceased suffered injuries and was taken to police station where he himself lodged the report. S.R.Sengar Sub Inspector (PW-15) deposed that complainant Babulal lodged the report and he sent him to hospital Ashta for medical examination. Narmada Bai, Bhagwat Singh, Shadilal and Anandilal stated that accused persons assaulted Babulal by means of lathis as a result of which he suffered injuries. Dr.R.C.Gupta examined the injuries of Babulal and vide his report Ex.P/20 found following injuries on his body:-

(i) Contusion with swelling on right upper arm. Suspected fracture of shaft of right upper humerus.

(ii) Multiple abrasion on left upper arm.

(iii) Contusion with abrasion on forehead.

(iv) Contusion with abrasion on back of right shoulder.

(v) Abrasion on left forearm.

(vi) Contusion on chest on left anterior side with abdominal distension. All these injuries had been caused by hard and blunt object. General condition of patient was not fair. Patient was referred for the needful to Bhopal Hospital.

7. After death of Babulal, postmortem examination of his body was conducted by Dr.K.K.Chaturvedi who found following injuries on his body:-

(i) Disfiguration and dislocation of the middle of right upper arm with abrasion.

(ii) Abrasion on left forearm.

(iii) Reddish blue bruise on left side of chest at the level of 10th rib, costal region.

(iv) Abrasion on fronto parietal region.

(v) Abrasion on right shoulder.

All injuries were antemortem in nature. On internal examination, doctor found

(i) fracture of right side humerus bone;

(ii) rupture of liver;

(iii) rupture of spleen. Abdominal cavity contained huge amount of dark red blood.

In the opinion of doctor, the cause of death of deceased was syncope as a result of abdominal injury causing rupture of liver (vital organ) leading to severe internal haemorrhage and shock.

8. From the above evidence, it has been clearly established that the deceased died of homicidal death.

9. Next question before us is whether it has been established that the accused/appellants caused the death of deceased. Narmada Bai (PW-5) happened to be the wife of elder brother of deceased. According to her, at about 7-8:00 p.m. while she was cooking and there was dark, a girl namely Sarita came and informed her that some persons were beating Babulal. All the persons of the house went running and brought Babulal in the house. He had received many injuries. Though she stated that on her asking Babulal disclosed to her that accused Panna, Kripal,Hemraj, Kamal and Prabhu Bai assaulted him by iron rod and lathi, but in cross-examination she denied that Babulal was brought to her house in injured condition. She also denied that Babulal disclosed to her that accused persons assaulted him. She stated that when she saw Babulal, he was smeared in blood and was unconscious. He was not able to speak and could not even drink water. He was immediately taken in a bullock cart to Ashta after being lifted directly from the place of incident. She admitted that at the time of occurrence, accused Pannalal was drinking tea with Shadilal, brother of Babulal. The evidence of this witness does not appear to be of any use because neither she saw the incident nor she stuck to her statement that deceased narrated the incident to her and named the accused persons.

10. Bhagwat Singh (PW-11), brother of deceased, deposed that at about 7 o'clock in the evening accused persons assaulted Babulal in front of the house of Lakhanlal. Accused Hemraj was armed with an iron rod and others had lathis. He took Babulal in a bullock cart and then in a Mini-bus to Ashta police station. When he was being shifted from Ashta hospital to Bhopal, he died. According to this witness, when he and other persons reached at the place of incident they saw Babulal in seriously injured condition. According to him, when Babulal reached the police station he was in unconscious state and they alighted him from the bullock cart and kept in the police station. All the persons who accompanied Babulal were present in the police station. First of all police inquired about the incident from him and recorded it. Learned counsel for the appellants argued that the evidence of this witness is not reliable as an eyewitness because his presence at the time of occurrence is doubtful. His evidence is belied by the evidence of Narmada Bai (PW-5) who in her chief-examination deposed that at about 7-8:00 p.m. while she was cooking, Anandilal, her husband Bhagwat Singh (PW-11) were in the house and when Sarita came and informed them about the beating of Babulal, all of them rushed to the spot. Thus, the fact that Bhagwat Singh witnessed the occurrence becomes suspicious.

11. Similar is the situation with the evidence of Shadilal (PW-12) and Anandilal (PW-13). Shadilal happened to be the real brother of deceased. According to him, when Babulal was assaulted by the accused persons,he was at his house. When there was an uproar in the village, he went at the spot and saw accused persons beating Babulal. He then went to his house and called Anandilal and Narmada Bai. According to him, he rescued his brother from the accused persons and took him in the bullock cart. In cross- examination, he admitted that his mother Sarju Bai had come to his house and informed that accused persons had thrown Babulal after beating. Anandilal and Narmada Bai had informed him that accused persons had assaulted Babulal. Though this witness stated that when he reached at the spot the accused persons were still beating, but his evidence seems doubtful in view of his aforesaid admissions.

12. According to Anandilal (PW-13), the nephew of Babulal, when Shadilal went to his house and called him saying that accused persons were beating Babulal, he went to the spot and intervened, however, a new story was given by Sarju Bai (PW-14), the mother of Babulal that in the night when she was sitting in her 'Usaara', there was noise in the village, she rushed to the place and sprawled over her son. At that time Narmada Bai was with her. Prabhu Bai picked up a stone over her and then assailants ran away. According to her, she became unconscious, therefore, she did not know as to what happened to her son. She did not say who assaulted Babulal.

13. On carefully scanning and scrutinizing the evidence of the aforesaid witnesses, it seems doubtful that they witnessed the occurrence. It seems that after hearing hue and cry in the night witnesses reached at the spot and found Babulal lying in the injured condition.

14. So far as the acceptability and reliability of the First Information Report Ex.P/27 as a dying declaration is concerned, though Sub Inspector S.R.Sengar (PW-15) stated that Babulal (deceased) lodged the First Information Report at the police station and he recorded the same, but Bhagwat Singh (PW-11) who accompanied the deceased stated that when he brought his brother to police station he was in an unconscious state and first of all police people inquired from him about the incident and recorded the same. He also stated that all the people who had gone to police station remained present with the deceased in the police station. From the evidence of Narmada Bai (PW-5) also, it is revealed that when she saw Babulal, he was unconscious and was not able to speak. From the spot, he was directly taken in a bullock cart. Dr.R.C.Gupta (PW-9), who examined the injuries of deceased, deposed that he could not say that when Babulal was brought before him he was in senses or not. Had he been in a speaking condition, he would have recorded the history after asking him. Since he was not in a position to give the history, he did not record the same in his report Ex.P/20. In these circumstances, in our opinion, no implicit reliance can be placed on the First Information Report Ex.P/27 as a dying declaration. It is not established beyond doubt that the First Information Report was recorded by S.R.Sengar Sub Inspector (PW-15) from the information/statement given by the deceased. It has not been established beyond doubt that at the relevant time deceased was in fit condition to speak or make a statement. Apart from it, at the time when the alleged report was recorded, deceased was in the company of number of other persons. Interference by other persons while the report was being recorded could not be ruled out. In these circumstances, we are of the opinion that no implicit reliance can be placed on the First Information Report Ex.P/27 and no sanctity can be attached to it as a dying declaration.

15. For the reasons stated above, we are of the view that the prosecution has failed to establish beyond doubt that the accused/appellants caused the death of deceased. Trial Court did not appreciate the evidence in correct perspective and recorded the finding of conviction of the appellants. Accordingly, the judgment of conviction and sentence passed by the trial Court is set aside. Appellants are acquitted. Appellants be released if not required in any other case.

16. Appeal allowed.