Prabhu Lal & Ors. vs The State of Madhya Pradesh

Appellants have filed this appeal under Section 374(2) of Cr.P.C., against the judgment dated 16.07.2009 passed by First Additional Sessions

Judge, Raisen (M.P.) in Sessions Trial No.18/2009. Appellants were prosecuted for commission of offences punishable under Section 148 of IPC

and awarded R.I. for one year (each) and under Section 302/149 of IPC and awarded R.I. for life with fine of Rs. 1000/- (each) in default of

payment of fine R.I. for 3 months.

Prosecution story in brief is that the appellants and deceased Halke Ram are neighbours and resident of village Silwaha. Appellant Prabhu Lal

and Kapoori Bai are husband and wife and other appellants Babu Lal and Bhaiya Lal are their sons. Wife of deceased Halke Ram had expired 10

years ago and he was living with his children. Halke Ram was having illicit relationship with Kapoori Bai and she ran away with Halke Ram about

two months prior to the incident and lived with him. Thereafter, Kapoori Bai returned home about 3 - 4 days prior to the incident. Due to illicit

relationship between Kapoori Bai and Halke Ram the relation between appellants and Halke Ram became strained and inimical. On 15.12.2008

at about 10:30 am in the morning Hakle Ram was standing in front of his house than, appellants and Ku. Bulla, the daughter of Prabhu Lal armed

with axe and lathi came there and started beating him. They caused fatal injuries to Halke Ram by inflicting blows of lathi and axe on his head and

legs and other parts of the body. Seeing the incident Ku. Laxmi the daughter of the deceased, went to the tubewell of witness Sheikh Wahid and

informed him about the incident. Sheikh Wahid rushed to the spot and witnessed the incident, meanwhile other witness Ibrahim Khan also arrived

there. After beating the deceased, appellants ran away. The information of the incident was given at Police Station Salamatpur by telephone.

Balveer Singh, SHO, Salamatpur visited village Silwaha and on information of Sheikh Wahid, recorded Dehati Nalashi (Ex.P/20) and Dehati Marg

intimation (Ex.P/24) and conducted the inquest. The spot map (Ex.P/5) was prepared and plain earth and red earth was seized from the spot.

During investigation an axe was seized at the instance of Bhaiya Lal. Similarly, the lathies were recovered and seized on the basis of memorandum

statements of other appellants. The statements of witnesses were recorded and after usual investigation the charge sheet has been filed against the

present appellants before the Court. One of the accused Ku. Bulla was juvenile and the charge-sheet against her was submitted before Juvenile

Court.

The trial Court has framed the charge of offence punishable under Sections 147, 148, 302/149 IPC against the appellants. They abjured guilt

and pleaded innocence. The prosecution has examined nine witnesses whereas the appellants have given no evidence in their defense.

The trial Court on appreciation of evidence arrived at the conclusion that the present appellants have formed an unlawful assembly and being

member of the assembly they assaulted and committed murder of deceased Halke Ram. The trial Court convicted appellants under Sections 148

and 302/149 of IPC and sentenced them as mentioned hereinabove.

In appeal, it is argued by learned counsel for the appellants that the appellants have been falsely implicated in this offence. The witnesses Sheikh

Wahid and Ibrahim Khan reached on the spot after the incident and they had not seen the incident, but trial Court on erroneous appreciation of

evidence relied upon their testimonies as eye witnesses. Another witness Laxmi is daughter of deceased, she is interested witness. She is tutored by

her relatives to depose against the appellants. Therefore, her testimony is not wholly reliable. All the family members of the appellants have been

falsely implicated in this offence. In view of material discrepancies in the testimonies of prosecution witnesses their evidence cannot be accepted.

The trial Court has committed error and illegality in convicting the appellants for commission of murder of deceased.

Heard arguments and perused the record.

It is not disputed that the deceased has died of injuries sustained by him at the time of incident. Investigating Officer Balveer Singh Jat (PW-9)

deposed that receiving the information of the incident on 15.12.2008 he visited village Silwaha and found the dead body of the deceased lying on

Banskheda - Sanchi road near the house of deceased. He recorded Dehati Marg intimation (Ex.P/24), prepared the spot map and panchanama of

dead body (Ex.P/2) and sent the body for postmortem.

Dr. S.K. Rai (PW-3) deposed that on 16.12.2008 at Community Health Centre, Salamatpur he had conducted the postmortem of dead body

of deceased Halke Ram and found injuries as under:-

i. Lacerated wound 11.5 cm X 4.5 cm X bone and brain material deep on the scalp.

ii. Lacerated wound 5 X 1 cm X skin deep on left leg.

iii. Lacerated wound 3 cm X 1 cm X skin deep on left ankle joint.

iv. Lacerated wound 3 X 1.5 cm skin deep on right leg.

There was fracture of both bones of left fore arm. On internal examination fracture of vertex and frontal bone region of skull was found. Brain

material was stained with blood.

It is opined by the doctor that the injuries are caused by hard and blunt object, antemortem in nature. The death was due to cardio respiratory

failure as a result of shock and excessive hemorrhage with head injury. The statement of doctor is duly corroborated by the postmortem report

(Ex.P/18) given by him. Thus, relying upon the statement of doctor and postmortem report, it is proved that the deceased had suffered fatal injuries

at the time of incident and his death is homicidal.

Now the question arises whether the appellants being member of unlawful assembly caused injuries to the deceased ? In this regard, prosecution

has examined Ku. Laxmi (PW-7), Sheikh Wahid (PW-6) and Ibrahim Khan (PW- 4) as eye witnesses to the incident. Laxmi (PW-7) deposed

that the deceased Halke Ram was her father. At the time of incident she went to purchase tobbaco pouch from the shop situated near her house.

When she was returning home she saw the appellants armed with lathi assaulting her father Halke Ram. Appellants had inflicted blows of lathies on

head, hand and legs of Halke Ram. Seeing the incident she went to call Wahid and informed him about the incident. Wahid and she came on the

spot. Her father was lying on the ground he had sustained injuries on his head, hands and legs. Considering the testimony of this witness, it appears

that although, she is a child witness aged about 8 years, but in cross-examination she has not made any contradictory statement. The statement of

Laxmi is also corroborated by the witness Sheikh Wahid.

Sheikh Wahid (PW-6) deposed that at the time of incident he was present at his tube well, which is situated near the house of appellants and

deceased Halke Ram. There was a quarrel going on between appellants and Halke Ram and appellants were abusing him. Thereafter the

appellants started beating Halke Ram by lathies. Meanwhile, daughter of Halke Ram Ku. Laxmi came to his tube well and told him that appellants

are assaulting her father. Then, Sheikh Wahid rushed to the spot and told Prabhu Lal not to beat Halke Ram, even then Prabhu Lal gave two

blows of lathi to Halke Ram and thereafter all appellants ran away. Sheikh Wahid went to inform village Kotwar, Hari Singh. Hari Singh gave

information to police by telephone. Police arrived on the spot at about 03:00 O'' clock in the afternoon and recorded Dehati Nalashi (Ex.P/20).

Halke Ram died on the spot. In crossexamination this witness further deposed that Ibrahim Khan had also come on the spot at the time of incident.

In cross-examination, we do not find any material discrepancy in the testimony of Sheikh Wahid. He has categorically stated that his tube well

is nearer to the scene of occurrence and the spot where quarrel took place is visible from his tube well. This fact is also verified from the spot map

(Ex.P/5). Although, there is omission in police statement (Ex.D/1) of this witness regarding witnessing the incident from his tube well, but, it is not

material because later on, it is mentioned in police station that this witness has seen the incident when he reached on the spot with Ku. Laxmi.

Considering the distance between tube well and scene of occurrence, which is hardly about 171 steps, it is quite possible for Sheikh Wahid to

reach on the spot during quarrel. Therefore, we can rely upon the statement of Sheikh Wahid as to witnessing the incident. His statement is also

corroborated by Dehati Nalashi (Ex.P/24).

Another witness Ibrahim Khan (PW-4) deposed that at the time of incident at around 10:00 O'' clock in the morning he was going to Sanchi.

When he reached near the tube well of his nephew Wahid he found Halke Ram in injured condition lying on the road. Halke Ram told him that the

appellant Prabhu Lal, his two sons, wife and daughter had assaulted him. Other witness Sheikh Wahid was also present there. In his police

statement (Ex.D/1) it is not mentioned that the deceased had told this witness that the appellants had beaten him. This is material omission.

Therefore, above statement of the witness becomes doubtful. But, it is found that this witness has arrived on the spot soon after the incident.

Thus, the statement of eye witness Laxmi (PW-7) is duly corroborated by other eye witness Sheikh Wahid (PW- 6). Laxmi is a child witness

but there is no evidence to presume that she has been tutored to depose against the appellants. Seeing the appellants assaulting her father it is quite

natural for this witness to go to Sheikh Wahid for seeking help. In Radheshyam v. State of Rajasthan AIR 2014 SC(Suppl.)773 Hon''ble Apex

Court in para 9 observed as under:-

In Panchhi (AIR 1998 SC 2726) after reiterating the same principles, this Court observed that the evidence of a child witness must be

evaluated more carefully and with greater circumspection because a child is susceptible to be swayed by what others tell him and, thus, a child

witness is an easy pray to tutoring. This Court further observed that the courts have held that the evidence of a child witness must find adequate

corroboration before it is relied upon. But, it is more a rule of practical wisdom than of law. It is not necessary to refer to other judgments cited by

learned counsel because they reiterate the same principles. The conclusion which can be deduced from the relevant pronouncements of this Court

is that the evidence of a child witness must be subjected to close scrutiny to rule out the possibility of tutoring. It can be relied upon if the court

finds that the child witness has sufficient intelligence and understanding of the obligation of an oath. As a matter of caution, the court must find

adequate corroboration to the child witness''s evidence. If found, reliable and truthful and corroborated by other evidence on record, it can be

accepted without hesitation.

Sheikh Wahid (PW-6) is an independent witness. He has no enmity with the appellants. His presence near the scene of occurrence is reliable.

He has lodged the report Dehati Nalashi (Ex.P/24) soon after the incident, which corroborates his testimony. Thus, the testimony of Laxmi and

Sheikh Wahid appears to be cogent, reliable and trustworthy. The trial Court on proper appreciation of evidence relied upon their testimonies and

arrived at the conclusion that the appellants had assaulted the deceased and caused him grievous injuries. Since, all the appellants had inflicted

blows of lathies on person of deceased Halke Ram, therefore, it is rightly held by the trial Court that the appellants had formed an unlawful

assembly and assaulted the deceased in furtherance of common object of the assembly.

Now the question is what the offence appellants have committed. There is no evidence on record to show that the appellant Kapoori Bai had

run away with deceased Halke Ram and on account of their illicit relationship the appellants were keeping enmity with the appellants. There is no

evidence to show that the appellants were intending to kill the deceased. From the evidence of witness Sheikh Wahid, it appears that there was a

quarrel between appellants and deceased Halke Ram and they both were abusing each other. During this quarrel the deceased had been beaten by

lathi. There is single blow of lathi on head of the deceased, which resulted into his death. The doctor has not opined that this injury is sufficient to

cause death in ordinary course of nature. Hon''ble Apex Court in case law Rampal Singh Vs. State of Uttar Pradesh (2012) 8 SCC 289 Hon''ble

Apex Court has explained the distinction between Section 299 and 300 of IPC. In para Nos. 13 to 17 Hon''ble Apex Court observed as under:-

Section 300 IPC proceeds with reference to Section 299 IPC. Section 300 IPC states what kind of acts, when done with the intention to causing

death or bodily injury as the offender knows to be likely to cause death or causing bodily injury to any person, which is sufficient in the ordinary

course of nature of cause death or the person causing injury knows that it is so imminently dangerous that it must in all probability cause death,

would a mount to ''murder''. It is also ""murder"" when such an act is committed, without any excuse for incurring the risk of causing death or such

bodily injury.

Hon''ble Apex Court in the case of Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247 in para 21 it is observed that :-

Further in the case of Arumugam vs. State, represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590, in support of the

proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as

under:

....... ""18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender''s

having taken undue advantage or acted in a cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within

Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the ''fight'' occurring in Exception 4 to Section 300 IPC is not

defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down

and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between

two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden

quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the

application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown

that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression ''undue advantage'' as used in the provision

means ''unfair advantage''.

It is further held by Hon''ble Apex Court in case law Arjun and another( Supra) in para 23 as under :-

When and if there is intent and knowledge, then the same would be a case of section 304 Part-I IPC and if it is only a case of knowledge and

not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part- II IPC. Injuries/incised wound caused on

the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and

knowledge to cause the injuries and thus it would be a case falling under Section 304 Part-I IPC.

Thus, keeping in view the facts and circumstances of the case where the deceased has suffered a single blow of lathi on his head without any

intention to kill him, the act of the appellants falls under Section 304 part-I of IPC instead of Section 302 of Penal Code. The trial Court has

committed error in convicting the appellants under Section 302 of IPC. The appellants are held guilty for commission of offence punishable under

Section 304 part-I read with Section 149 of IPC.

As far as offence under Section 148 of IPC is concerned there is no reliable evidence available on record to show that the deceased was

assaulted by an axe. The medical evidence does not show any injury inflicted by hard and sharp object. It is also not proved beyond reasonable

doubt that the appellants were armed with deadly weapon or axe at the time of incident. Therefore, the offence under Section 148 of IPC is not

proved beyond reasonable doubt against the appellants. The trial Court has committed error in convicting the appellants in aforesaid offence. Thus,

the conviction and sentence awarded by the trial Court to appellants under Section 148 of IPC is set-aside.

Consequently, the appeal is partly allowed. The conviction of appellants under Section 302 r/w Section 149 of IPC is modified to under

Section 304 part-I of IPC. The appellants are convicted to undergo R.I for 10 years and fine of Rs.1,000/- each in aforesaid offence. The

appellants be given set off under Section 428 of Cr.P.C.

The appellants Kapoori Bai and Prabhu Lal is shown to be released on bail. Therefore, they are directed to surrender before the trial Court to

suffer remaining part of sentence.