Ramdhani and Others vs State of Madhya Pradesh

S.K. Gangele, J.—This Appeal is preferred by the accused/appellants being aggrieved by the judgment dated 27.1.1998 passed by the Ist ADJ, Rewa in S.T. No.38/91. By the impugned judgment, the trial judge convicted each of the appellants for commission of offence under section 304-II read with section 34 of the IPC with direction to undergo RI 3 years with fine of Rs.1000/-.

The prosecution story in brief is that on 19.2.1990, accused/ appellants had been grazing their cattle in the field of Shiv Prasad. He tried to stop them. In that event, appellants had beaten Shiv Prasad. Other persons also came on the spot. Thereafter, report of the incident was lodged at P.S Hanumana, district Rewa. Shiv Prasad died on the way. After investigation, the charge sheet was filed before the court. Appellants abjured the guilt. After trial, learned trial judge acquitted 2 two persons but found the charges proved against the appellants and awarded the sentence as mentioned above.

Learned counsel appearing on behalf of the appellants submitted that the trial court has committed an error of law in holding the offences proved against the appellants. The trial court failed to appreciate the evidence in proper manner, hence the appellants are entitled for acquittal from the charges framed against them.

On the contrary, learned Panel Lawyer for the State submitted that the trial court has rightly held appellants guilty for commission of the aforesaid offences and awarded proper sentence.

In support of the case, prosecution examined 14 witnesses. Appellants also examined one defense witness in their support.

Sitla Prasad (P.W.1), the Patwari, in his evidence, deposed that he had signed the map Ex.P/1. Rajnath Shukla (P.W.2), Constable had deposed that he had taken the body of the deceased for postmortem. Sukhchand Prasad (P.W.3), Sub Inspector, in his evidence deposed that he had registered the FIR (Ex.P/5) and signed the same. Mahabali (P.W.4), the seizure witness and Shyamlal (P.W.5) who is the witness of memorandum, turned hostile.

Budhsen (P.W.6), in his evidence, deposed that at around 10.30 in the morning, he was cutting-off the pigeon pea crop in his field and, at a distance of 200 meters, Shiv Prasad along with Ramprasad, 3 Rajivlochan and Bhaiyalal was also cutting-off the pigeon pea crop in his own field. At that time, some buffaloes came in the field, on which, Ram Prasad tried to get the buffaloes out of his field. In that event, Rameshwar asked Shiv Prasad why he had taken the buffaloes from his field and also commented him as "kanwa". Thereafter, a quarrel took place. Later-on, this witness turned hostile.

Ramsajeevan (P.W.7), in his evidence, deposed that the spot map (Ex.P/20) was prepared by the police in his presence. Similar facts have been deposed by Bhuvneshwar Prasad Dwivedi (P.W.8).

Dr. Brijesh Kumar Tiwari (P.W.9) who conducted the postmortem of the deceased, in his evidence, deposed that there was bruise over the right side of the abdomen of the deceased. It was 2 cm above from the pubic symphysis to upwards middle between umbilicus and iliac crest measuring 15 cm in length and 6 cm in breadth, bluish in colour. Slight swelling at the side of bruise in comparison to other side. On dissection, he found blood in the muscles. There was some rupture in the intestine and blood was also found in it. Because of the injury caused in the right side of the stomach, there was internal bleeding. There was contusion in the intestine.

Bhaiyalal Tiwari (P.W.10), in his evidence, deposed that on 19.11.90 at around 9 O'' clock in the morning he was in his field along with his uncle Ramprasad and brother Rajivlochan. They had been 4 cutting-off the pigeon pea crop. At that time, accused Rambadan, Ramnidhi, Majnu, Rameshwar, Radhika and Krishnagopal along with their cattle, came in the field of his uncle Shiv Prasad. When Shiv Prasad objected to such act, all accused persons had beaten Shiv Prasad by fists and lathis. When Shiv Prasad was being carried on a cot. On the way, he was died. He further deposed that when he tried to save his uncle Shiv Prasad, accused Radhika inflicted a lathi blow to him.

Ramprasad (P.W.11) also deposed the same facts as Bhaiyalal (P.W.10). He further stated that the accused persons had been grazing their cattle in his field and when they objected about such act, they had beaten Shiv Prasad by fists. In para-24 of his cross-examination, he had deposed that Ramdhani was armed with `lathi'' and rest all the accused persons were unarmed. He further stated that Ramdhani had beaten the deceased Shiv Prasad.

Rajeevlochan (P.W.12), in his evidence, deposed that the accused persons had been grazing their cattle in the field of deceased Shiv Prasad. When he objected to such act then accused Ramdhani, Rameshwar and Krishnagopal had beaten Shiv Prasad by legs and fists. Rameshwar was armed with bamboo and he had beaten deceased by bamboo. At that time, Bhaiyalal also came on the spot. Rameshwar had also inflicted stick (bamboo) blow on Bhaiyalal.

R.K. Shukla (P.W.13), the Asst. Sub Inspector, in his evidence, 5 deposed that from 5.3.86 to 30.8.92, he was posted as Asst. Sub Inspector at Police outpost Hatta. He conducted the investigation and recorded the statements of witnesses on 19.2.90. He also prepared the spot-map of the incident Ex.P/20. He had arrested the accused persons and prepared the arrest memo. He had also recovered the wood-stick (Danda) from the accused persons and prepared the recovery memo.

Shitla Prasad Shukla (P.W.14), who was working as Patwari, in his evidence, deposed that he had prepared the spot map Ex.P/1.

From the evidence of Dr. Brijesh Kumar Tiwari (P.W.9), it is clear that there was one fatal injury to the deceased which was caused by hard and blunt object. He did not mention the other injuries on the body of the deceased. He specifically deposed that the injury which was caused to the deceased could not be caused by fists or legs. He has mentioned that the injury was caused by lathi (hard and blunt object).

Rajivlochan (P.W.12) specifically deposed in his evidence that appellant Rameshwar was lashed with bamboo and he had beaten the deceased by bamboo (stick). The relevant portion of the deposition of the witness reads as under :-

In the FIR (Ex.P/5) which was lodged by Bhaiyalal Tiwari (P.W.10), it is mentioned that accused Rameshwar had inflicted one 6 lathi blow, on the elbow of right-hand whereas; accused Radhika inflicted a lathi blow on the back-side above the waist. From the contents of the FIR, it is clear that appellant No. 2 Rameshwar had inflicted a lathi blow. The fatal injury has been corroborated by the medical evidence. There were no other injuries on the body of the deceased, hence the version of the witnesses that the accused persons had beaten the deceased by fists, legs and lathis is unreliable because medical evidence will prevail over the oral evidence. If there were other injuries caused to the deceased, the doctor must have mentioned such injuries in the postmortem report.

Budhsen (P.W.6) who is the prosecution witness stated that deceased Shiv Prasad had been cutting-off his pigeon pea crop. Some buffaloes came there and Ramprasad had taken the buffaloes to another place and then there was some hot conversation between Rameshwar Prasad and Shiv Prasad. Thereafter Rameshwar Prasad ran away and Shiv Prasad followed him and there was a quarrel. The other prosecution witnesses also deposed that the deceased had been cutting- off the crops and the accused persons came along with their buffaloes. It appears that there was some hot conversation in regard to grazing of buffaloes and, in-between, a lathi blow was inflicted on the deceased. The lathi blow is attributed to appellant No. 2 Rameshwar and this story is also corroborated by Budhsen (P.W.6). Hence, in my opinion, the 7 conviction of accused/appellant No. 2 Rameshwar is proper. However, the other appellants could not be convicted on the basis of section 34 and there is no evidence that they had beaten the deceased or participated in the crime because the incident had occurred on a spur of moment. Hence, the conviction of other appellants is contrary to law and without any evidence.

Consequently, the appeal is allowed in part. The conviction and sentence of appellant No. 2 Rameshwar Prasad is hereby upheld. But the conviction and sentence of the appellants No. 1, 3 and 4, namely, Ramdhani, Krishnagopal and Rambadan respectively is hereby set aside and they are acquitted from the charges leveled against them. These appellants are on bail. Their bail bonds are hereby discharged.

Appellant No. 2 Rameshwar Prasad is directed to surrender himself before the trial court for suffering the remaining part of the jail sentence as awarded by the trial court.

Appeal is allowed in part as indicated above.