Anand Ram vs State of M.P.

Chandra Bhushan Bajpai, J.�This appeal arises out of the judgment of conviction and order of sentence dated 22-7-1998 passed by the Second Additional Sessions Judge, Raipur, M.P. (now C.G.) in Sessions Trial No. 90/94 convicting the accused/appellant under Section 304 part II of the Indian Penal Code, 1860 (in short ''the IPC) and sentencing him to undergo rigorous imprisonment for 3 years and to pay fine of Rs. 500/-, in default thereof, to undergo additional rigorous imprisonment for 6 months. The learned trial Court acquitted the other co-accused namely Ghanshyam @ Pappu, Babulal and Ghanaram for the charges under Section 302 of the IPC. In the present case name of the deceased is Mangatu @ Brijram. It is alleged that cooked meat of heron was taken by Mohan without asking for the same from Mangatu @ Brijram. For this, there were quarrel between the deceased and Mohan. Meanwhile, the accused/appellant and the other acquitted co-accused Ghanshyam @, Pappu, Babulal and Ghanaram reached to the spot and they assaulted the deceased by a club. He sustained injuries over his head and other parts of the body. The incident was witnessed by Baisakhu @ Babalu (PW-5). He narrated this to his uncle--complainant Amaru (PW-1, brother of the deceased). When complainant Amaru (PW-1) reached to the spot, he saw his brother Mangatu @ Brijram died in the open verandah. He along with Village Kotwar and other villagers reached to Police Station Gariyaband and lodged the merg intimation (Ex.-P/28) on 29-8-1993 at about 24.00 hrs. at Police Station Gariyaband, Village Darripara. Thereafter, he also lodged the First Information Report (FIR) vide Ex.-P/1. Police of Police Station Gariyaband registered the crime No. as 76/93 against the appellant and the acquitted co-accused persons under Section 302/34 of the IPC. After giving merg notice (Ex.-P/6), the Investigating Officer prepared the inquest vide Ex.-P/7. The postmortem on the body of the deceased was conducted on 30-8-1993 vide Ex.-P/25 by Dr. Snehalata Singh (PW-14) who noticed (i) one lacerated wound of 2 inch x 1/2 c.m. x half of the scalp deep at antero lateral aspect of right parietal region of head; contusion surrounded the injury No. (i) measuring 3 x 2 1/2 inches, clotted blood seen, bluish red contusion, (ii) one more lacerated wound of 3/4 cms. x 1/2 c.m. x half of the scalp deep situated over right postero lateral aspect of head at occipital region, (iii) contusion surrounding the injury No. (ii) clotted blood present; and opined that cause of death was coma may be due to result of intoxication of alcohol. He also noticed presence of alcohol in the abdomen. As per the prosecution, during the incident, the accused/appellant also sustained injuries. He was too examined by Dr. Snehlata Singh (PW-14) who noticed lacerated wound 2 x 1 inches with irregular margin at forehead caused by hard and blunt object, two contusions 5 x 2 inches over both arms caused by hard and blunt object and noticed pain over backside of both palms. She gave her report vide Ex.-P/20. As per investigating Officer, the accused/appellant suffered injuries as he was assaulted with a club by deceased Mangatu @ Brijram. After the completion of the investigation, charge sheet was filed against the appellant and acquitted co-accused under Section 302/34 of the IPC and accordingly charges were framed against the appellant and acquitted co-accused under Section 302 of the IPC.

So as to hold guilty all the accused persons, the prosecution examined as many as 20 witnesses. Statements of the accused persons were recorded under Section 313 of the Code-of Criminal Procedure, 1973 (for short ''the Code'') in which they denied the circumstances appearing against them and pleaded innocence and false implication in crime in question.

The trial Court after hearing counsel for the respective parties and considering the material available on record by the judgment impugned convicted and sentenced the accused/appellant as mentioned in para 1 of this judgment and acquitted the other accused as aforementioned.

Contentions of learned counsel for the appellant are as under:--

(i) even if the entire prosecution case is taken as it is, it is clear that the accused/appellant had no intention to cause death of the deceased, also the death of the deceased is not proved to be homicidal by the autopsy surgeon and as per his opinion cause of death was due to coma as a result of intoxication of alcohol,

(ii) in the present case, homicidal death was not proved by the prosecution,

(iii) apart from this, the accused/appellant assaulted the deceased in his right of private defence of his body as the deceased assaulted him by club and thereby he also sustained injuries over his vital part i.e. head. In his defence the accused/appellant inflicted blow by a club to the thigh of the deceased. Since there was no force by the assault made by the accused/appellant, no injuries were noticed by the autopsy doctor.

(iv) since there was no intention on the part of the accused/appellant to commit murder of the deceased/homicidal death not amounting to murder of the deceased, thus, in the present facts and circumstances of the case, the accused/appellant can at best be held guilty under Section 323 of the IPC and not under Section 304 Part II of the IPC.

(v) lastly, he submits that the prosecution failed to prove its case against the appellant, he assaulted in reply in his defence, hence, he is not liable for any offence, alternatively, he may be convicted under Section 323 of the IPC and as the accused/appellant has already undergone more than 3 months 10 days as part of the sentence, his sentence may be reduced to the period already undergone by him.

On the other hand supporting the judgment impugned, learned counsel for the State/respondent submits that the conviction of the accused appellant is strictly in accordance with law and there is no illegality or infirmity in the judgment impugned warranting interference by this Court.

I have heard learned counsel for the parties and perused the material available on record.

Amaru (PW-1) the lodger of the merg (Ex.-P/28) and the FIR (Ex.-P/l) is not the eye-witness. He had not seen the incident. Baisakhu @ Babalu (PW-5) told him regarding the incident. Kanhaiya (PW-2) turned hostile and not supported the prosecution''s case. Kesar Singh (PW-3) witnessed the incident and deposed at para 2 that he saw accused beating Mangatu by club, he intervened and asked to stop beating. Accused stopped the beating as per his instruction. At para 4, he deposed that the deceased beat accused/appellant Anand and Anand fell down, and as Anand fell down, this witness intervened and stopped the further incident. He further stated that when the accused/appellant fell down thereafter other co-accused assaulted the deceased. Baldev Prasad (P-4) is not eye-witness of the incident, the incident was narrated to him by other villagers, he was unable to recollect their names at the time of his Court statement, this is hearsay witness. As per statement of Baisakhu @ Babalu (PW-5, nephew of the deceased), he saw the incident, he deposed at para 5 that after the dispute regarding taking away the cooked meat by Mohan from the house of the deceased, the deceased assaulted Mohan by a club and thereafter when this witness intervened and separated the deceased and Mohan and he was taking the deceased in the house, the accused/appellant took out a club used for fencing flowers and gave one blow to leg of the deceased. The deceased sustained injury at thigh and thereafter the deceased assaulted by a club to the accused/appellant. The accused/appellant sustained one injury over his head and blood started coming out. Thereafter, the other acquitted co-accused persons came and they assaulted the deceased. He further deposed that the deceased assaulted twice to the accused/appellant before this accused/appellant assaulted the deceased. He improved his police statement (Ex.-D/1) on the point that the accused/appellant took out a club used for fencing flowers and he assaulted from the said club to the deceased. He also made some other improvements from his police statement (Ex.-D/1). Amrit Lal (PW-6) turned hostile and not supported the prosecution''s case against the appellant. Bhagwat (PW-7) not said anything against the accused/appellant. Kacharu (PW-8) not stated anything specific against the accused/appellant. Domanlal (PW-9) also not stated anything against the accused/appellant. Mohan (PW-10) turned hostile and not supported the prosecution''s case. Shriramnath (PW-11) is a witness who saw the accused/appellant in injured condition with injuries over his head. When he asked the accused/appellant, he stated that the deceased assaulted him by a club. This witness did not say anything against the accused/appellant. Dayaram (PW-12) and Sundar Singh (PW-13) turned hostile and they not supported the prosecution''s case. Doctor Snehlata Singh (PW-14) examined the dead body of the deceased and noticed following symptoms and injuries:--

(i) one lacerated wound of 2 inch x 1/2 c.m. x half of the scalp deep at antero lateral aspect of right parietal region of head; contusion surrounded the injury No. (i) measuring 3 x 2 1/2 inches, clotted blood seen, bluish red contusion, (ii) one more lacerated wound of 3 1/2 cms. x 1/2 c.m. x half of the scalp deep situated over right postero lateral aspect of head at occipital region, (iii) contusion surrounding the injury No. (ii) clotted blood present; and opined that cause of death was coma may be due to result of intoxication of alcohol. She gave her report vide Ex.-P/25. She also examined accused/appellant Anand Ram and noticed lacerated wound 2 x 1 inches with irregular margin at forehead caused by hard and blunt object, two contusions 5 x 2 inches over both amis caused by hard and blunt object and noticed pain over backside of both palms. She gave her report vide Ex.-P/20. Thaneshwar Chandrakar (PW-15, Patwari, examined twice also as PW-19), prepared the spot map vide Ex.-P/16. Budhdhu, Sweeper, was examined as PW-16, as per his statement, he had presented 4 sealed packet given by the doctor which were seized vide Ex.-P/26. Gulab Singh, Constable (PW-17) prepared the memo for medical examination of the accused/appellant. He also identified the FIR written by the then In-charge of the police station--Mr. Pandey, as Ex.-P/1. Assistant Sub-Inspector D.P. Tiwari (PW-18) recorded the statement of the witnesses under Section 161 of the Code and conducted part of the investigation. Sub-Inspector L.K. Pandey (PW-20) conducted the investigation and supported the case of prosecution.

Minute examination of the evidence makes it clear that the death of the deceased as homicidal is not proved beyond all doubts by the prosecution. As per the autopsy surgeon cause of death was coma may be due to result of intoxication of alcohol. He also noticed presence of alcohol in the abdomen though the deceased received two injuries over his head skin deep surrounded by contusion but the doctor not stated anything that these injuries caused death of the deceased. In absence of clear admissible, straight evidence, we cannot hold the death of the deceased homicidal. By appreciating the death as homicidal, I am of the view that, the learned trial Court has committed an error. Other witnesses also admitted that that the deceased had consumed liquor. Upon considering the entire facts and circumstances for the death of the deceased, I am of the view that homicidal death is not proved.

Minute examination of the evidence, makes it clear that the appellant was present at the time of incident, he assaulted by a club to the deceased as the deceased assaulted him by a club to his head. In the present case, the deceased and the appellant both sustained injuries over their head though Baisakhu @ Babalu (PW-5) stated that the appellant assaulted by a club at the thigh of the deceased. Kesar Singh (PW-3) deposed that all the accused persons were assaulting the deceased. At para 4, he also stated that the deceased assaulted to accused/appellant and the accused/appellant fell down, he intervened and stopped the incident. Baisakhu @ Babalu (PW-5) also witnessed that before him the accused/appellant assaulted at the thigh of the deceased and thereafter the deceased also assaulted him. The accused/appellant not gave any explanation regarding the two injuries-lacerated wounds found over the head of the deceased. No explanation is offered in reply to the question asked under Section 313 of the Code. Looking to the totality of the evidence, it is clear that the accused/appellant and the deceased both assaulted each other. In absence of explanation regarding the other attending circumstances, it would not be safe to hold that the appellant inflicted injuries for his self defence because as per statement, he assaulted first and thereafter the deceased too assaulted the accused/appellant. The act of the accused/appellant does not come under the ambit of right of private defence though he also sustained injuries over his head. By the same set of witnesses other co-accused were acquitted. The State not preferred any appeal against their acquittal before this Court and the acquittal of the other co-accused persons remained unchallenged. As per story other accused also took part in the incident, I am of the view that there was no intention and knowledge available to the accused/appellant that he will kill the deceased by the assault. Also the deceased not died homicidal death and as the accused/appellant also sustained injury over his head, I am of the view that the act of the accused/appellant not squarely falls under Section 304 Part II of the IPC because homicidal death is not proved. The act of the accused/appellant comes under the ambit of voluntarily causing hurt to the deceased.

Consequently, the conviction of the appellant under Section 304 Part II of the IPC requires interference and instead thereof the appellant is guilty under Section 323 of the IPC. From the record, it appears that the accused/appellant served the part of jail sentence for 3 months 10 days i.e. from 30-8-1993 to 09-12-1993, the incident is about 21 years old, the accused/appellant was the first offender with no criminal past at the time of incident, and even thereafter, as stated, he had not involved in any other similar criminal activities, he too was not directly responsible for the incident as some other person had taken the cooked meat from the house of the deceased without his permission and there was a quarrel between both of them and coincidently the accused/appellant became a part of the second round of the incident and he involved himself as abovementioned. Looking to the entire facts and circumstances, in considered opinion of this Court, sentencing the accused/appellant under Section 323, of the IPC for the period already undergone by him would serve the ends of justice.

In the result, the appeal is allowed in part. Instead of conviction under Section 304 Part II of the IPC, the appellant is convicted under lesser Section i.e. Section 323 of the IPC and is sentenced for the period already undergone] by him along with the fine sentence awarded by the trial Court. The accused/appellant is reported to be on bail, therefore, he be set at liberty forthwith. His bail bond shall continue for a further period of 6 months from the date of the judgment of this Court as per requirement of Section 437-A of the Code.