Madhya Pradesh High CourtPurshottam vs The State Of Madhya Pradesh on 31 March, 2010Author:Rakesh SaksenaBench:S.C.Sinho,Rakesh SaksenaHIGH COURT OF MADHYA PRADESH: JABALPUR                                                 (AFR)



                       CRIMINAL APPEAL NO. 2015/2006

        1. Purushottam Patel, son of Ramlal Patel
        aged about 43 years.
        2. Noni, son of Khuman Patel,
        aged about 60 years.
        3. Ghassi @ Ghasoti, son of Ramsai,
        aged about 45 years.
        4. Gulab Patel, son of Ramlal Patel,
        aged about 28 years.
        5. Gajraj Patel, son of Purushottam Patel,
        aged about 27 years.
        6. Rajju Master alias Rajaram Raikwar,
        son of Nandlal Raikwar, aged about 43 years.
        All cultivators and residents of village
        Bori-Kala, Police Station Hatta,
        District Damoh, M.P.

                                                                         .......Appellants

                                 -Versus-

        State of Madhya Pradesh
                                                                       ........Respondent

--------------------------------------------------------------------------------------------------------
 For the appellant:                Shri S.C.Datt, Senior Advocate with Shri
                                   Siddharth Datt, Advocate.
 For the respondent:               Shri Prakash Gupta, Panel Lawyer.
--------------------------------------------------------------------------------------------------------

                     CRIMINAL REVISION NO. 2232/2006


        Tajammul Hussain, son of Sheikh Rustam,
        aged about 47 years, Resident of village
        Borikala, P.S.Hatta,
        District Damoh (M.P.)                    .......Applicant

                                   -Versus-

        1. Purushottam Patel, son of Ramlal Patel
        aged about 43 years.
        2. Noni, son of Khuman Patel,
        aged about 60 years.
        3. Ghassi @ Ghasoti, son of Ramsai,
        aged about 45 years.
        4. Gulab Patel, son of Ramlal Patel,
        aged about 28 years.
        5. Gajraj Patel, son of Purushottam Patel,
        aged about 27 years.
        6. Rajju Master alias Rajaram Raikwar,
        son of Nandlal Raikwar, aged about 43 years.
                                                   (2)                               Cr.A.2015/2006
                                                                                    Cr.R.2232/2006




        All cultivators and residents of village
        Bori-Kala, Police Station Hatta,
        District Damoh, M.P.
        7. State of Madhya Pradesh
        through P.S. Hatta,
        District Damoh (M.P.)
                                                ........Non-applicants

--------------------------------------------------------------------------------------------------------
         For the applicant                 Shri Mohd.Amzad, Advocate.
         For the respondents: Shri S.C.Datt, Senior Advocate with Shri
                                           Siddharth Datt, Advocate.
                                           Shri Prakash Gupta, Panel Lawyer.
--------------------------------------------------------------------------------------------------------

          Present:             Hon'ble Justice Shri Rakesh Saksena
                               Hon'ble Justice Shri S.C.Sinho
--------------------------------------------------------------------------------------------------------

                                            Date of hearing : 18.03.2010
                                            Date of judgment: 31.03.2010

                                            **********

                                            JUDGMENTPer 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 undersections 304-I/149and148of 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 undersection 302/149I.P.C. Though this

revision was filed against all the 23 accused persons tried by the(3)                    Cr.A.2015/2006Cr.R.2232/2006Court below, however, the revision was admitted only against non-

applicants No. 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 (PW2) 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

p.m., Rafique went to the house of Moti Patel on a bicycle. After

some time Shafique along with Lalu Ahirwar (PW14) and Kalu

Pathan (PW13) 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 after some time he expired.5.    The news regarding the incident was received by ASI Hatta

N.P.Tiwari (PW16). He along with police force reached the spot

where he recorded Dehati Nalshi (Ex.P/19) given by Shafique

(PW12). He also seized blood from the spot. On the basis of Dehati

Nalshi, later on First Information Report Ex.P/18 was recorded at

police station. Dead body of Rafique was sent for postmortem

examination. Accused were arrested and weapons were recovered(4)                    Cr.A.2015/2006Cr.R.2232/2006from 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 (PW12), Kalu (PW13) and Lalu (PW14) had in

fact not witnessed the incident and had been introduced to bolster a

false case. Dehati Nalshi (Ex.P/19) was also ascribed at some later

stage.7.         At the trial, prosecution case rested mainly on the

testimony of eyewitnesses Shafique (PW12), Kalu (PW13), Lalu

(PW14) and the medical evidence of Dr. Rakesh Bhardwaj (PW10).

Learned Additional Sessions Judge, after trial and upon appreciation

of evidence adduced in the case, acquitted the appellants of the

charges undersection 302/149I.P.C. but found them guilty undersection 304-II.P.C. 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 eyewitnesses. They were related to deceased and were

interested witnesses. Statement of Kaluu/s 161Cr.P.C. 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 undersection

304-II.P.C. since, none of the injury, alleged to have been inflicted(5)                   Cr.A.2015/2006Cr.R.2232/2006by 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 undersection 304Part III.P.C. Learned

counsel also placed reliance onMolu 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 eyewitnesses 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 Nalshi recorded immediately after

the occurrence. He justified and supported the conviction of the

appellants under section 304-I I.P.C.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 undersection

302/149I.P.C. was made out, therefore, accused/appellants were

liable to be convicted undersection 302/149I.P.C. 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 (PW10), who conducted postmortem examination

of the body of deceased and found following injuries in his report

Ex.P/17(A):-(6)                  Cr.A.2015/2006Cr.R.2232/2006(1)    Incised wound - over upper part of left leg, below
      the    knee joint 14cm x 4cm x 5cm starting anteriorly
      covering whole of the back, muscles and blood vessels cut.
      Both bones cut.(2)    Incised wound - 6cm x 2.5cm x 1.5cm over lower
      part of right forearm, dorsal aspect, blood vessels cut;
      shaft of right ulna cut in its lower part.
      (3)    Incised wound - .75cm x .25cm muscle deep over
      middle of the right forearm.(4)    Linear abrasion - 4.5cm x .25cm over antero lateral
      part of lower middle part of right upper arm.
      (5)    Linear abrasion - 10cm x .25cm over upper part of
      right upper arm.(6)    Incised wound - .5cm x .25cm muscle deep just
      medial to injury No.2.
      (7)    Incised wound - over middle part of left forearm 3cm
      x 1.5cm x 2.5cm.
      (8)    Abrasion - on middle of the left upper arm 6cm x .
      25cm.
      (9)    Haematoma over occipital region of scalp 3cm x
      1cm.In the opinion of doctor, cause of death of deceased was

Cardio respiration as a result of shock due to haemorrhage.13.          Eyewitness Sheikh Safique        (PW12) 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(7)                    Cr.A.2015/2006Cr.R.2232/2006Motilal, 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 (PW11) 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 Nalshi (Ex.P/19) was

brought by Ghanshyam on the basis of which he registered First

Information Report Ex.P/18 on 1.12.2000. Similarly, Assistant Sub

Inspector N.P.Tiwari (PW16) 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 undersections 147,148,149,302I.P.C. against 23 accused

persons. He recorded Dehati Nalshi Ex.P/19 as well as marg report

Ex.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 (PW12) stands corroborated by the

evidence of ASI N.P.Tiwari (PW16).15.        Corroborating the evidence of Sheikh Shafique (PW12),

Kalu (PW13) stated that at about 12 o'clock when he was going to his

field, 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,(8)                       Cr.A.2015/2006Cr.R.2232/2006farsa, 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 field,

but at about 5 o'clock in the evening, Kotwar called him to join the

inquest proceedings. Inquest memo Ex.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 a 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 Nalshi Ex.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.InState 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(9)                         Cr.A.2015/2006Cr.R.2232/2006prosecution 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 (PW12) 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 (PW16), who categorically

stated that a brief information was given to him at police station by

some old man and 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 (PW12) further stands

corroborated by the evidence of Lalu (PW14), 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 ballam, 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.(10)                    Cr.A.2015/2006Cr.R.2232/200619.        Trial Court, on appreciating the evidence of aforesaid

eyewitnesses, 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 (PW12), Kalu (PW13) and Lalu (PW14),

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 to 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 undersection

304-II.P.C. was not justified; at the most the appellants might be

held liable undersection 304Part III.P.C. and their sentence be

reduced. On the other hand, learned counsel for the complainant,

submitted that on the basis of evidence of eyewitnesses and the

nature of injuries sustained by the deceased, it was clearly

established that accused persons were liable to be convicted undersection 302I.P.C. as their intention to cause death of the deceased(11)                   Cr.A.2015/2006Cr.R.2232/2006was 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 (PW10) admitted that injuries no.3,4,5,6,7 & 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

no.1 & 2 were grievous in nature which were caused by sharp edged

weapon. Due to excessive haemorrhage from the injury no.1 & 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 ofSarwan 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 undersection 302without the aid ofsection 149I.P.C. When the injuries caused are

cumulatively sufficient to cause death, it is necessary before holding

each of the accused guilty undersection 302read withsection 149to 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 undersection 302I.P.C. 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(12)                  Cr.A.2015/2006Cr.R.2232/2006vital part of the body and the injury on the head was only 1/4" 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 undersection 304-

II.P.C. However, sentence of accused was reduced to 5 years

rigorous imprisonment with fine.23.InMolu 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(13)                      Cr.A.2015/2006Cr.R.2232/2006deceased.In these circumstances, accused had committed an offence

under section 304 Part II of the Indian Penal Code and not one under

section 302 I.P.C.24.InSitaram 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 undersections 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

wounds 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 undersections 302/149,

I.P.C. Accordingly, we set aside their conviction undersections

302/149, I.P.C. and sentence of imprisonment for life. Instead we

convict them undersection 304, Part II,I.P.C. 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 undersection 304-II.P.C. 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(14)                   Cr.A.2015/2006Cr.R.2232/2006injuries 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-I deserves to be altered to one undersection 304Part II of theIndian 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-I/149to undersection 304Part II/149I.P.C. 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 undersection 148I.P.C. 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.(Rakesh Saksena)                              (S.C.Sinho)
              Judge                                        Judge
b(15)   Cr.A.2015/2006Cr.R.2232/2006