Dhansampat and Others vs State of M.P.

Rakesh Saksena, J.—Appellants have filed this appeal against the judgment dated 29.11.2008 passed by Additional Sessions Judge in Sessions Trial No. 113/2008, convicting them under Sections 302 and 147 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 500/- and rigorous imprisonment for one year, on each count respectively. In short, the prosecution case is that on 1.7.2008, in village Kukariya Raiyat, at about 7-8 A.M., Kotwar Anup Das informed to residents of village to attend a meeting in ''Badi'' of Laman Singh. All the residents of village including women and children assembled there at about 10-11 A.M. and meeting started. Complainant Dhan Singh, his brother Moolchand and mother Bajrahin Bai were also present there. In the meeting, accused Dhansampat Singh told to people that Bajrahin Bai, Hansi Bai, Mangli Bai and Ahiran Bai were witches and they were harassing the inhabitants of village of their witchcraft due to which people were falling ill. He asked to aforesaid women to tell as to disclose their goddess. People present in the meeting got excited and asked them that there should be no mis-happening in the village and they should refrain from devouring people. In the meantime, number of people including appellants started beating Hansi Bai, Mangli Bai, Ahiran Bai and Bajrahin Bai with fists and kicks. Some how Hansi Bai, Mangli Bai and Ahiran Bai escaped and ran away, but appellants bent upon beating Bajrahin Bai with intent to kill her. As a result of assault, Bajrahin Bai suffered injuries on her face, eyes and other parts of the body. Some persons intervened and tried to pacify assailants. Dhan Singh rescued Bajrahin Bai and took her home. At about 5 O'' clock in the evening, however, Bajrahin Bai succumbed to her injuries.

Dhan Singh went to police station Bajag and lodged the report Ex. P/1, at 11.30 P.M. Police registered an offence under Sections 147 and 302/ 149 of the Indian Penal Code against the accused persons and reached the spot. Investigating Officer Bhagat Singh (PW14) in the presence of Dhan Singh (PW1) and Moolchand (PW2) conducted inquest proceedings and recorded memorandum Ex. P/4. He sent the body of Bajrahin Bai for postmortem examination to Community Health Centre, Bajag. Dr. P.C. Verma (PW13) conducted postmortem examination and found four injuries caused by hard and blunt object on the body. There was no fracture of any bone. In his opinion, death of deceased was caused due to shock hemorrhage and pneumonia as the deceased was old, weak and emaciated woman.

After requisite investigation, charge sheet was filed and the case was committed for trial.

On charges being framed, appellants abjured their guilt and pleaded false implication. According to them, deceased and her family members practiced black magic, therefore, they were denounced. Deceased had died of illness, but false allegation of assault was made against them. It was also suggested in cross examination of some of the witnesses that the son of deceased killed her and levelled false accusation against the appellants.

Prosecution, to prove its case examined 14 witnesses, however, relying on the evidence of eye witnesses viz. Dhansingh (PW1), Moolchand (PW2), Mangli Bai (PW4), Hansi Bai (PW5), Ahiran Bai (PW6) and on the medical evidence of Dr. P.C. Verma (PW13) held the appellants guilty of the charges, convicted and sentenced them as mentioned above.

Learned counsel for the appellants did not assail the finding recorded by the Court below that appellants, in a mob, assaulted deceased as a result of which, she died. However, he submitted that in the facts and circumstances of the case, conviction of appellants u/s 302/149 of the Indian Penal Code was not justified. Since, the incident occurred suddenly in a mob when allegations were being made against the deceased and other women that they practiced witchcraft which engulfed number of residents of village and that no weapon was used in the assault, Court below committed error in holding that appellants intended to commit murder of deceased. He submitted that deceased was an old and ill lady; she was suffering with pneumonia, therefore, merely by trivial assault, she died. Appellants could have been held liable u/s 323 of the Indian Penal Code or at the most u/s 304-11 of the Indian Penal Code. Appellants were already in custody since 2.7.2008. On the other hand, learned counsel for the State submitted that it was clearly established by the prosecution evidence that appellants assaulted an old and frail woman of about 62 years of age, who was suffering with pneumonia. In such circumstances, learned Court below was justified to convict the appellants u/s 302/149 of the Indian Penal Code.

We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully.

It has not been disputed that Bajrahin Bai died on 1.7.2008. Dhan Singh (PW1), Moolchand (PW2), Mangli Bai (PW4), Hansi Bai (PW5) and Ahiran Bai (PW6) categorically stated that accused/appellants assaulted deceased with fists and kicks, as a result of which, she suffered injuries and died. Report Ex. P/1 of the said incident, after the death of deceased was lodged by Dhan Singh (P W1) at Police Station Bajag. Sub Inspector Bhagat Singh (PW14) recorded the said F.I.R. and also amerg report Ex. P/2 and sent the body of deceased for postmortem examination to Community Health Centre, Bajag. He also recorded inquest memorandum Ex. P/4 infront of witnesses indicating that deceased died due to beating. Dr. P.C. Verma (PW13), who performed the postmortem examination found following injuries on the body of deceased:-

(i) Both eyes black,

(ii) contusion/abrasion on forehead area, swelling present,

(iii) contusion on left side of lower chest 3" x 3" bluish in colour &

(iv) contusion on right side of lower chest 3" x 3" bluish in colour.

On internal examination, doctor found that the deceased was an old, weak and emaciated women. Bones of her skull were intact. Both the lungs had sign of pneumonitis. Inflammatory cough was present in thoracic cavity which was blood tinged. In his opinion, death was caused due to shock, hemorrhage and pneumonia. Multiple contusions present on the body were caused by hard and blunt object. Patient was old, weak, and emaciated.

From the above evidence, it is stood clearly established that deceased died due to injuries found on her body.

The next question before us is whether appellants assaulted deceased due to which she died.

From the evidence of complainant Dhan Singh (PW1), it seems that on the day of occurrence at about 1.30 P.M., accused persons called a meeting in the village. In the meeting, head of the village viz. Mansingh, Tihari, Hari Singh, Bhagat Singh, Karan Singh, Sunder Singh and some women were present. When he enquired from ''Mukhiya'' about the purpose for calling meeting, he informed that it was in respect of the witch-craft in the village. Deceased, Hansi Bai, Managli Bai and Ahiran Bai were said to be witches. People in the meeting told that if they did not renounce their powers, they would be punished. Though, some elders tried to intervene, but accused persons did not yield to their request and started assaulting Hansi Bai, Mangli Bai and his mother Bajrahin Bai. Accused persons to whom he knew, assaulted his mother with fists due to which she suffered injuries. Hansi Bai and Mangli Bai ran away and saved themselves. He stated that he lifted and carried his mother to his house, but in the evening at 5.00-5.30 P.M., she died. He then went to police station and lodged the report Ex. P/1. Though, this witness was cross examined at length, but nothing material could be elicited out to render his evidence unreliable. The evidence of Dhan Singh stood supported by Moolchand, Mangli Bai, Hansi Bai and Ahiran Bai, who reiterated the same story. Mangli Bai (PW4) and Hansi Bai (PW5) were also assaulted in the incident and were sent for medical examination through requisitions Ex. P/ 18 and Ex. P/19. They were examined by Dr. P.C. Verma (PW 13), but their injuries could not be proved in the Court since, Dr. Verma did not depose in respect of them in the Court. He confined his statement only in respect of injuries of deceased. Presence of these witnesses at the spot has not been challenged by appellants. Evidence of these witnesses finds further supported from the medical evidence of Dr. P.C. Verma (PW13), who found four injuries on the body of deceased. According to Dr. Verma, injuries of deceased were caused by some hard and blunt object.

On appraisal of the evidence of aforesaid eye witnesses, we find it established that it were appellants, who assaulted deceased by fists due to which she suffered injuries and died. The finding recorded by the Court below in this regard is, therefore, affirmed.

The next question for consideration before us is whether appellants were rightly convicted u/s 302/149 of the Indian Penal Code.

On perusal of the evidence of Dhan Singh (PW1), Moolchand (PW2), Mangli Bai (PW4), Hansi Bai (PW5) and Ahiran Bai (PW6), it is revealed that since a long time number of untimely deaths occurred in the village, people of the village suspected that deceased, Mangli Bai, Hansi Bai and Ahiran Bai practiced black magic or witchcraft and were responsible for the unfortunate deaths. When the meeting was called, under excitement, appellants and some other persons indulged in beating all the aforesaid women. However, others, except the deceased ran away and got saved. When accusation was made against the deceased and other women, it was protested by Ahiran Bai and Hansi Bai, but suddenly in commotion accused persons started beating them. Admittedly, accused persons had no weapons. They assaulted all the aforesaid women. It was admitted by Dhan Singh that different accused assaulted different person separately. Learned counsel for the appellants argued that in such circumstances, it could not be presumed that appellants intended to commit murder of deceased, therefore, the conviction of appellants u/s 302/149 of the Indian Penal Code was not justified. We find substance in the submissions of learned counsel for the appellants. It is apparent that the incident occurred suddenly in a mob. Appellants did not use any weapon, they merely assaulted deceased with fists. Only four injuries were found on the body of deceased. There was no fracture or any kind of grievous hurt on the body of deceased. Dr. P.C. Verma pointed out that the deceased was an old and frail woman and was also suffering with pneumonia. From his evidence, it appears that even by assault by fists and kicks she could have died. Under these circumstances, in our opinion, learned Court below committed error in holding that the intention of the appellants was to cause death of deceased, therefore, the conviction of appellants u/s 302/149 of the Indian Penal Code was not justified. However, from the evidence of Dr. Verma, it has since been established that deceased was a thin, frail and emaciated old woman it could be inferred that appellants knew that the assault on her by fists and kicks was likely to result in her death, therefore, in our opinion, it would be appropriate to hold the appellants guilty of the offence u/s 304-11 of the Indian Penal Code.

In view of the above discussion, conviction of appellants u/s 302/149 of the Indian Penal Code is modified to one u/s 304-11/ 149 of the Indian Penal Code. They are sentenced to rigorous imprisonment for five years. They are also directed to deposit fine of Rs. 1,000/- in the trial Court. In default of payment of fine, they shall undergo further rigorous imprisonment for a period of six months each. Conviction and sentence u/s 147 of the Indian Penal Code is affirmed. Appeal partly allowed.