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Judgment
This Criminal Appeal under Section 374 of Cr.P.C. has been filed against the judgment and sentence dated 5 November 1996 passed by
Sessions Judge, Panna in Sessions Trial No.58/1993, by which the appellants have been convicted under Section 304 Part II read with Section
149 of I.P.C. and have been sentenced to undergo the rigorous imprisonment of 5 years and a fine of Rs.2000/- and the appellant-Babbu has also
been convicted under Section 323 of I.P.C. and has been sentenced to undergo the rigorous imprisonment of 6 months, respectively. Both the
sentences have been directed to run concurrently.
The appellant-Kamta has expired during the pendency of this appeal and, therefore, the appeal filed by Kamta has been dismissed as abated.
The co-accused Sitte @ Sitwa has been acquitted by the Trial Court, however, no appeal against his conviction has been filed.
The necessary facts for the disposal of the present appeal in short are that on 25-3-1993, the deceased Rammilan had gone to the market along
with his brother Kallu and son Pahlwan. While they were returning back from Ajaygarh at about 2 P.M., then on the way, Kallu stopped in order
to drink water, whereas the deceased Rammilan went ahead on his cycle with his son Pahalwan as pillion rider. When the deceased Rammilan and
Pahalwan reached near a bridge, at that time, all the accused persons came there. The appellant Raju was having Ballam, Kamta was having
Farsa, Babbu was having Lathi, Sukhdeo was having axe, Krital was having Lathi and Vishnu was having Farsa. The acquitted accused Sitte was
also there. All the accused persons started assaulting the deceased Rammilan. On hearing the shouts of Rammilan, Kallu got afraid and hided
himself in the bushes. The acquitted accused Sitte was exhorting the other accused persons and was shouting that the deceased should not be left
alive. The appellant Babbu also gave a lathi blow to Pahalwan, which landed on his hand. The injured Pahalwan went to his house and informed
the incident to his mother Ramkali @ Badi Bahu, and Paira wali. Thereafter, Ramkali, Pairawali, Ramnarayan and other villagers went to the spot
and found that Rammilan was lying on the spot with various injuries on his body. In the meanwhile, Ramavtar, Dau Ahir, and Raju of village
Barkola also reached on the spot. The deceased Rammilan was alive at that time. Raju brought a bullock-cart and took the deceased to police
station, however, he died on the way and the F.I.R. was lodged by Kallu Ahir. The dead body of the deceased Rammilan was sent for post-
mortem. In post-mortem report, as many as 24 injuries were found and the death had occurred due to shock and haemorrhage.
The police after recording the statements of the witnesses and completing the remaining formalities, like arresting the accused persons, effecting
recovery, filed the charge sheet against the appellants and the acquitted accused Sitte and Kamta (Died during the pendency of this appeal) for
offence under Section 302 or in the alternative 302 read with Section 149 of I.P.C. The Trial Court by order dated 12-1-1994, framed charges
under Sections 302 or in the alternative 302 read with Section 149 of I.P.C.
The appellants abjured their guilt and pleaded not guilty. The prosecution, in order to prove its case, examined Santosh Singh (P.W.1), Dr. P.C.
Shrivastava (P.W.2), Kallu (P.W.3), Ramnarayan (P.W.4), Rajkumar (P.W.5), Bhaiyadeen (P.W.6), Ramavtar (P.W.7), Pahalwan (P.W.8),
Jageshwar Prasad (P.W.9), Chhote Khan (P.W.10), Raju (P.W.11), Rameshwar (P.W.12), Ramkali (P.W.13), Bhagat (P.W.14) and S.L.
Mishra (P.W.15). The appellants did not examine any witness in their defence.
The Trial Court by judgment and sentence dated 5- November, 1996 acquitted all the accused persons for offence under Section 302 or in the
alternative 302 read with Section 149 of I.P.C. and convicted them for offence under Section 304 Part II read with Section 149 of I.P.C. and also
convicted the appellant Babbu for offence under Section 323 of I.P.C. for causing injury to Pahalwan. Co-accused Sitte was acquitted of all the
charges.
Neither the State nor the complainant has challenged the acquittal of the appellants of the charge under Section 302 or in the alternative 302
read with Section 149 of I.P.C. The acquittal of the co-accused Sitte has also not been challenged. Thus, the only consideration before this Court
is that whether the Trial Court has rightly convicted the appellants for offence under Section 304 Part-II read with Section 149 of I.P.C. and under
Section 323 read with Section 149 of I.P.C. or not? The first question for determination is that whether the deceased Rammilan had died a
homicidal death or not?
Dr. P.C. Shrivastava (P.W.2) had conducted the Post mortem of the dead body of the deceased Rammilan and had found the following injuries
:
1) Contusion 3 1/2 x 1/2 inches on the medial side of the left thigh upper part red in colour.
2) Contusion 2 1/4 x 1 inch on the medial side of the left thigh middle part red in colour.
3) Contusion 2 1/2 x 1 inch on the medial side of the left thigh middle part below injury no.2.
4) Contusion 3 1/2 x 1 inch on the left buttock transverse red in color.
5) Penetrating wound 1 1/2 cms x 1/2 cms x bone deep on the back of the left forearm upper part. Fracture of the upper end of the ulna.
6) Penetrating wound 1 1/4 cms x 1/2 cms x bone deep on the lateral side of the left elbow joint. Fracture of the upper end of the radius present.
7) Penetrating wound 1 1/4 cms x 1/2 cms x bone deep on the medial side of the left arm. Lower part. Fracture of medial ... of the left numerous.
8) Penetrating wound on the lateral side of the left arm. Lower part size 1 1/2 cms x 1/2 cms x bone deep. Fracture of the lower end of the
humorous bone.
Contusion 2 1/2 x 2 inch on the back of the right fore arm. Lower post red in colour deformity present.
Incised wound 3 1/2 cms x 1 1/2 cms x bone deep on the medial side of the right thigh lower part.
Penetrating wound on the back of right elbow size 2 cms x 1/2 cms x bone deep fracture of the upper end of the right ulna present.
Penetrating wound 2 1/2 cms x 1/2 cms x bone deep on the back of the right arm. Fracture of the right humorous bone present the lower end
of the humorous bone protruding from the injury.
Penetrating wound 1 cms x 1 cms x bone deep almost circular in front of the elbow joint.
Penetrating wound 1 cm x 3/4 cms x bone deep on the lateral side of the right forearm upper part.
Penetrating wound 1/4 cm x 1/4 cm x bone deep in front of the right knee joint. Fracture of the patella present.
Incised wound 2 cms x1/2 inch x bone deep on the right side of the scalp.
Incised wound 1 1/2 x 1inchxbone deep on the right side of the scalp in frontal region.
Contusion 8 1/2 cms x 2 cms on the medial side of the right thigh middle part.
Contusion 6 1/2 cms x 2 cms on the right side of the back in upper part.
Contusion 7 cm x 2 cms on the right side of the back in upper part below injury no.19.
Contusion 10 1/2 cms x 2 1/2 inch on the ride side of the back on lower part.
Contusion 13 1/2 cms x 2 cms on the left side of the back in the upper.
Contusion 11 cm x 1 1/2 cm on the left side of the back in middle part.
Contusion 14 1/2 cms x 1 1/2 cms on the left side of the back middle part.
The cause of death was haemorrhage and shock from the various injuries. The Post Mortem report is Ex.P.4C. The seized weapons were sent
to this witness along with the query which was replied by this witness that the injuries could have been caused by the weapons. The query report is
Ex.P.5C. This witness was cross-examined and he was given suggestions that the deceased could have sustained injuries due to fall in the canal,
however, it was replied by the witness that if there are gates with pointed ends and if the deceased fell down on the said gates, only then he can
sustain the penetrating wounds. It was also specifically stated by him that the injuries were sufficient in ordinary course of nature to cause death.
Thus, it is clear that the prosecution has succeeded in establishing beyond reasonable doubt that the deceased-Rammilan had died a homicidal
death. The next question for determination would be that who are the authors of the injuries sustained by the deceased Rammilan.
Kallu (P.W.3) is an eyewitness, who had gone along with the deceased Rammilan and Pahalwan to a weekly market in Ajaygarh. This witness
was on a different cycle, whereas Pahalwan was sitting on the cycle, which the deceased was driving. While they were coming back, this witness
stopped for drinking water whereas the deceased Rammilan moved ahead. While this witness was drinking water, he heard shouts and when he
reached near the canal, he found that the deceased had already fallen down on the earth and his nephew Pahalwan was standing there. Babbu was
having a lathi with attached iron, Kupal was having lathi, Vishnu was having farsa, Kamta was having farsa, Sukhdev was having axe, Rajju was
having ballam and accused Sitte was empty handed. He saw that all the accused persons were assaulting the deceased with the weapons, which
they were carrying in their hands. As this witness became frightened, therefore, he did not try to save his brother, but hided himself in the nearby
bushes. The son of the deceased, namely, Pahalwan was shouting and the appellant Babbu gave a lathi blow on the hand of Pahalwan and after
sustaining lathi blow, Pahalwan ran towards the village, however, the accused continued to assault the deceased. The wife and mother of the
deceased were working in the field situated at some distance and when they noticed that Pahalwan is crying and on information given to them by
Pahalwan, they came running towards the place of incident and they were crying and shouting and by that time also, the accused persons were
assaulting the deceased. The mother and wife of the deceased also tried to save the deceased and lay-down on him and pleaded that the deceased
be not beaten and thereafter, the accused persons went towards different directions. Thereafter, this witness also went to the spot and by that time,
his son and Sarju had also come on the spot and the deceased was alive at that time. His son brought a bullock-cart, however, the deceased
expired. Thereafter, this witness went to the police station on his cycle and lodged the report, Ex.P.6. Marg intimation Ex. P.7 was written and his
thumb impressions were obtained. About 1-11/2 years back, the relatives of the accused persons had assaulted the younger brother of the
deceased, as a result of which, they were facing trial for offence under Section 307 of I.P.C. and since their relative Ramcharan also had enmity
with the deceased, therefore, he was killed. A notice, Ex.P.1 was given to remain present and the receipt of the dead body of his brother is
Ex.P.8. The spot map Ex.P.9 was prepared. This witness was crossexamined in detail, however, nothing could be elicited from his cross-
examination, which may indicate that this witness is not trustworthy.
Pahalwan (P.W.8) is an injured witness who along with the deceased was on the cycle. This witness has stated that while they were coming
back from Ajaygarh, his uncle Kallu stopped near the canal for drinking water. When this witness and the deceased reached near the bridge, at
that time, all the accused persons came there and the appellant Babbu gave a lathi blow to his father. Rajju was having Ballam, Babbu was having
Lathi, Vishnu was having Farsa, Kiratlal was having lathi, Kamta was having farsa, Sukhdeo was having axe and acquitted Sitte was empty
handed. Sitte was exhorting the other accused that the deceased should not be spared and all the accused persons started assaulting the deceased
with the weapons in their hands. Kallu was witnessing the incident from a distance and was hiding in the bushes. While the accused persons were
assaulting his father, this witness was crying and went towards his village and met with his mother and Pairawali to whom he informed the incident.
When he again came back to the spot, his father was alive. This witness was cross-examined and he denied that he had met with a lawyer, who
has tutored him as to what he is to depose. It was further stated that they had gone to Ajaygarh for the treatment of this witness and had taken
treatment from Dr. Munna Shrivastava, who had given an injection as well as also some pills. Some marketing was also done. Kallu had stopped
on the way for drinking water. When they reached near the bridge, then the appellant Babbu gave a lathi blow on the head of his father. The police
party had come to the spot in the night itself. When the accused Babbu had given a lathi blow, then this witness and the deceased had fallen down
from the cycle. Thus, this witness was cross examined in detail, but nothing could be elicited from his evidence, which may make his evidence
unreliable.
Ramkali (P.W.13) has stated that her son Pahalwan came running and was shouting that his father is being assaulted. She immediately went to
the spot and saw that all the accused persons were assaulting the deceased. She fell down on the injured in order to save him. Raju also came on
the spot and her mother-in-law also reached on the spot. The accused thereafter ran away.
Raju (P.W.11) has stated that when he reached on the spot, he saw that the deceased was lying on the ground in an injured condition and his
father Kallu (P.W.3), Ramkali (P.W.13) and Pairawali were also present on the spot. The injured also told this witness that he has been assaulted
by the accused persons. This witness was cross-examined in detail. Certain questions were disallowed by the Court and an attempt was made by
the Counsel for the appellants to get the matter adjourned by making an application for deferring the cross-examination on the ground that they
want to file a criminal revision against the order disallowing questions in the cross-examination. In cross-examination, this witness further admitted
that the fact of oral dying declaration by the deceased is not mentioned in his case diary statement Ex.D.2 and he could not explain why the said
fact is not mentioned. Thus, this witness cannot be relied upon on the question of making of an oral dying declaration. Rameshwar (P.W.12) did
not support the prosecution story and was declared hostile.
Thus, it is clear that the case is based on the direct evidence of Kallu (P.W.3) and Pahalwan (P.W.8) as well as Ramkali (P.W.13). These
witnesses were cross-examined in detail, however, the appellants have failed to demolish the truthfulness of these witnesses.
All the accused persons were present on the spot with different weapons in their hands. As many as 24 injuries were found on the body of the
deceased and those injuries were penetrating wounds, incised wounds and contusions. Thus, it is clear that all the accused persons had assaulted
the deceased and the ocular evidence finds full corroboration from the medical evidence. The F.I.R., Ex. P.6, was lodged by Kallu (P.W.3) on
25- 3-1993 itself at 19:00, whereas the incident took place at 15:00 and the distance of the police station from the place of incident is 12 Kms. In
the F.I.R., all the seven accused persons were specifically named and it was specifically mentioned that all of them have assaulted the deceased.
Thus, the prompt F.I.R. also rules out the possibility of any false implication.
The Trial Court has also come to a conclusion that all the appellants except the accused Sitte were armed with weapons and had assaulted the
deceased and as many as 24 injuries were found on his body and, therefore, they have been held guilty of causing injuries to the deceased.
The Trial Court has come to a conclusion that the manner in which the incident had taken place and the part of the body on which the injuries
were caused, the appellants have committed an offence punishable under Section 304 Part-II of I.P.C. read with Section 149 of I.P.C. and
acquitted the appellants for offence under Section 302 read with Section 149 of I.P.C. Since the acquittal of the appellants for offence under
Section 302 read with Section 149 of I.P.C. has not been challenged, therefore, this Court cannot look into the matter that whether the Trial Court
was right in acquitting the appellants for offence under Section 302 read with Section 149 of I.P.C. or not? Since all the accused persons had
participated in the actual assault and they were the members of the unlawful assembly and had acted in furtherance of common object, therefore, it
is held that the appellants are guilty of offence under Section 304 Part-II read with Section 149 of I.P.C. The appellant Babbu has also been
convicted under Section 323 of I.P.C. for causing simple injury to Pahalwan.
So far as the question of sentence is concerned, it is submitted by the Counsel for the appellants that since the incident took place in the year
1993 and the appellants are on bail and they have not misused their liberty, therefore, a lenient view may be adopted in awarding the jail sentence
and the jail sentence awarded by the Trial Court may be reduced.
Considered the submission made by the Counsel for the appellants. As many as 24 injuries were caused to the deceased with multiple
fractures. The manner in which the incident has taken place, this Court is of the view that the Trial Court by awarding the jail sentence of rigorous
imprisonment of 5 years, has already adopted a very lenient view, which does not require any interference.
Hence, the judgment and sentence dated dated 5 November, 1996 passed by Sessions Judge, Panna in Sessions Trial No.58/1993 is hereby
affirmed. The appellants are on bail. Their bail bonds are hereby cancelled. They are directed to surrender immediately to undergo the remaining
jail sentence. The appeal fails and is hereby dismissed.