Rammanohar @ Kalu vs State Of Madhya Pradesh

This criminal appeal has been filed by as many as 8 appellants being appellant No.1 Rammanohar @ Kalu, appellant No.2 Vijay Kumar @ Vijay,

appellant No.3 Munna @ Harnam Prasad, appellant No.4 Ramu @ Balram Prasad, appellant No.5 Vishal Singh, appellant No.6 Nanhebhai, appellant

No.7 Moti Singh and appellant No.8 Shyamu @ Shyamsunder, against the order of conviction dated 24.12.2004 passed in S.T.No. 59/2001 passed by

the First Additional Sessions Judge, Damoh whereby the learned Judge finding the appellants guilty , convicted them as under :-

In brief the facts of the case are that on 17.12.2000, in the evening at around 5’O Clock when deceased Purushottam Mishra was sitting on the

Chabootra of Shankarji, at that time, appellants armed with sticks and axes came there and started assaulting him. Soon after the incident, he was

taken to the police station on a bullock cart from where he was sent to the District Hospital, Damoh. At the police station, FIR Ex.P/42 was lodged by

the deceased himself wherein names of seven appellants were mentioned except the name of appellant No.8 Shyamu. Dying declaration of the

deceased (Ex.P/37) was also recorded by P.W.17 Ashok Kumar Shukla, Tehsildar, on 18.12.2000 at around 1:25 a.m. wherein he had named all the

eight accused persons. Specific allegations were made in the dying declaration that initially first injury was caused by appellant Vijay Kumar with the

aid of stick on the right leg of deceased Purushottam, axe was used by Vishal Singh to hit the deceased on his hand and while trying to save himself,

deceased Purushottam also received injury on his hands. Rammanohar hit him with an iron rod, Munna also with an iron rod on his nose, Nanhe Bhai

with the aid of stick and Ramu and Shyamu also hit him with sticks. Deceased Purushottam passed away on 11.01.2001 i.e. 22 days after the incident.

Post-mortem was conducted on the same day at around 4 p.m.

The cause of death is shown to be death on account of D.I.C. ( Disseminated intravascular coagulation) Syndrome arising out of complications due

to injuries received by the deceased. In medical term, ‘Disseminated intravascular coagulation’ is a condition in which small blood clots develop

throughout the bloodstream, blocking small blood vessels. The increased clotting depletes the platelets and clotting factors needed to control bleeding,

causing excessive bleeding.

The prosecution has examined 21 witnesses whereas the appellants have not examined any person in their defence.

After recording the evidence, the learned Judge of the trial Court convicted the appellants as aforesaid and being aggrieved of the same, this appeal

has been preferred.

Learned counsel for the appellant has submitted that although in the present case FIR Ex.P/42 is alleged to have been recorded by the deceased

Purushottam himself and thereafter dying declaration Ex.P/37 was also recorded but still the dying declaration which was recorded in front of

Tehsildar (P.W.17) cannot be relied upon on account of the infirmities in recording the dying declaration. In the post-mortem report prepared by

P.W.16 Dr. S.K. Jain as many as 11 injuries have been found on the body of the deceased, out of which one was bone deep lacerated wound on the

right parietal region and other other injuries were on the legs and arms only. It is further submitted that the said witness P.W.16 Dr. S.K. Jain found

that none of the injuries were caused on the vital organs of the body and there was no damage to the organs also and according to his testimony the

cause of death is said to be D.I.C. ( Disseminated intravascular coagulation) Syndrome. Thus, it is submitted that as no injury was inflicted on any vital

part of the body, no case for culpable homicide not amounting to murder is made out against the appellants. So far as dying declaration is

concerned, it is submitted that initially in the FIR, which is also said to be lodged by the deceased Purushottam himself, name of Shyamu was not

mentioned. Subsequently, improvisation has been made by the deceased and in the dying declaration and Shyamu’s name has also been included.

It is further submitted that none of the alleged eye-witnesses have actually seen the incident as even according to the dying declaration and the FIR,

other persons came on the spot subsequently when the incident had already taken place. It is further submitted that at the most the case would fall

under Sections 324 and 326 of the IPC. It is further submitted that no common object to commit the offence has been made out by the prosecution

even assuming for the sake of argument that there was unlawful assembly. It is further submitted that the dying declaration itself is not admissibleÂ

the injuries found on the body of the deceased had not caused the death. Reliance is also placed on the decision of Hon’ble Apex Court reported

in AIR 1964 SC 900 to substantiate that the dying declaration is not admissible in evidence. It is also submitted that the dying declaration was recorded

on the prompting of the deceased which led to falsely implicating the present appellants. Similarly it is submitted that the eye-witness account of

P.W.2 Asharam, P.W.3 Suhagrani, mother of deceased, P.W.4 Damodar, brother of deceased, cannot be relied upon as it has come on record that

they reached the on the spot after the incident was over and as such they cannot be called as eye-witnesses. Thus, counsel has submitted that the

appellants are liable to be acquitted.

On the other hand, learned counsel for the State has opposed the appeal and has submitted that it is a clear case of murder but despite this, the

appellants have been convicted under Section 304 Part II of IPC for commission of culpable homicide amounting to murder, thus, no intereference is

called for in the said conviction.

Counsel for the respondent has further submitted that injuries may not have been inflicted on the vital parts of the body but the nature of the injuries

which had totally decapitated the deceased, cannot be said to have been caused only with a view to hurt or to cause grievous hurt. It is further

submitted that the FIR in the present case was lodged immediately after the incident by the deceased himself and subsequently his dying declaration

was also recorded on 18.12.2000 and except the name of appellant No.8 Shyamu, all the names have been disclosed by the deceased in both the

documents namely the F.I.R. as also the dying declaration. It is further submitted that while recording the dying declaration, the doctor had also

endorsed the mental state of the deceased to be fit. It is further submitted that it cannot be said that the death occurred only because of the

complications and was not the result of the injuries inflicted on the body of the deceased. Thus, it is prayed that no case for interference is made out

and the appeal is liable to be dismissed.

Heard the learned counsel for the parties and perused the record.

The incident had taken place at around 5’ O Clock in the evening of 17.12.2000 whereas the FIR was lodged at around 10’ O Clock in the

night. The delay in lodging the FIR is said to be caused due to the fact that the deceased Purushottam who was injured at that time was carried in a

bullock cart to the police station which is around 9 Kms. away from the place of incident. Admittedly, in the FIR, 7 persons have been named as

accused persons in which name of Shyamu is missing. So far as the injuries caused to the deceased are concerned, prosecution has examined P.W.18

Dr. H.S. Verma, who had conducted X-ray examination of the deceased at the Medical College, Jabalpur. On his examination, he found that the

deceased Purushottam had a fracture on his left tibia fibula, left humerus bone was also fractured, both the bones of forearm were also broken, radius

and ulna of right hands were also fractured. M.L.C. report is Ex.P/38. He has admitted that on account of the injuries which were received by the

deceased, a person can survive, although he has admitted that the fractures were grievous in nature.

Dr. A.K. Jain has been examined as P.W.19. On 11.1.2001 he was posted at Jabalpur District Hospital as surgeon. He had conducted the post-

mortem of the deceased and found that there were five injuries on the person of the deceased on which surgery was performed before the

postmortem examination. According to his opinion, death had caused within 24 hrs of the incident due to D.I.C. (Disseminated intravascular

coagulation)Syndrome on account of the injuries received by the deceased. In his cross-examination, he has admitted that Purushottam had no injuries

on his head or vital organs of the body.

P.W.20 Dr. A.K. Tiwari was posted at District Hospital, Damoh, where deceased was first taken by the police. When the deceased was brought

to the hospital his pulse was 84, whereas B.P. was 110/70. The deceased was conscious. Thus, from the aforesaid discussion of the medical

witnesses there is no doubt about the cause of death was due to D.I.C. (Disseminated intravascular coagulation) syndrome on account of grievous

injuries suffered by the deceased. Disseminated intravascular coagulation is a condition in which small blood clots develop throughout the bloodstream,

blocking small blood vessels. The increased clotting depletes the platelets and clotting factors needed to control bleeding, causing excessive bleeding

Thus, under the facts and circumstances of the case, it cannot be said that the appellants had no knowledge at all that the injuries which were being

inflicted on the deceased would ordinarily result in death. It is true that no internal organ got damaged on account of the injuries received by the

deceased but it is only due to the deceased’s sheer luck that he did not suffer any injury on his vital organs, otherwise all efforts were made by the

appellants to ensure that the deceased should not survive. Thus, this Court holds that the case clearly falls within the Explanation 2 of s.299 of IPC

and it is held that the death was homicidal in nature not amounting to murder.

Now the next question which is to be considered is as to whether the appellants were responsible for such homicidal death and if yes to what

extent. In this behalf prosecution has examined P.W.1. Mohan, who is maternal uncle of the deceased. According to him, on the date of the incident,

Suresh, who happens to be his younger brother’s son, came to him and informed him that Purushottam is being assaulted by the appellants. He

immediately went towards the spot where he found Purushottam lying on a cot and when inquired he informed that firstly appellant Vijay caused injury

by an axe on his leg, Rammanohar hit with rod on his head, Vishal hit with axe on his leg, Munna Chaubey hit with iron rod (Ballam) on his lips,

Shyamu, Moti, Ramu and Nanhe Bai hit with the aid of axes. He has also stated that soon after the incident, he took the deceased on a bullock cart to

the police station as no vehicle was available in the village.

P.W.2 Asharam happens to be the father of the deceased. He has stated that on the date of the incident when he heard commotion outside his

house towards the Shankarji’s Chabootra, he went there and saw the appellants armed with various weapons inflicting injuries to the deceased

Purushottam and after beating him badly they ran away from the spot. He has further stated that he and his wife Suhagrani stayed with the deceased

for a while and thereafter they laid the deceased on a cot and then took him to police station on a bullock cart. He tried to search tractor in the village

but could not find one and they were compelled to take deceased Purushottam on a bullock cart to the police station where F.I.R. was lodged by him.

In his cross-examination he has stated that the deceased was assaulted for more than fifty times in front of his eyes, although he has not seen as to

which accused hit where.

Similarly, P.W.3 Suhagrani has also reiterated the same statement. She has further submitted that she begged the appellants to leave her son. At

that time, she was hit by Ramu and Shyamu by lathis and the accused persons did not listen to her and no other person came to intervene in the

matter. She has admitted that in her cross-examination in chief that she and her husband are the only two persons who had seen the incident. In her

detailed cross-examination, efforts have been made to demonstrate that she was not present on the spot when the incident took place and in fact the

incident was already over when she reached the spot and as such she had not seen the accused persons inflicting injuries on the deceased. She has

also narrated the entire incident alleging specific overt act to each of the accused persons. Although she has admitted that she had informed the police

that she had also received the injuries on the back but why the aforesaid fact is not recorded, she could not tell. Her attention is also invited to the

police statement Ex. D/2 wherein this fact is not recorded that she was also assaulted by the accused persons.Â

P.W.4 Damodar is the person who brought the bullock cart on the spot to take the deceased to the police station.

P.W.5 Mithilesh is the witness to the seizure memo and has deposed that none of the accused persons gave any information regarding recovery of

weapons to the police. He has also stated that none of the arms were seized before him although he has admitted his signature on the documents.

The other witnesses have also turned hostile and have not supported the case of the prosecution. Thus, so far as the recovery of the weapons of

assault is concerned, it cannot be said that the same has been positively established by the prosecution.

P.W.21 R.S. Parmar is the investigating officer. He has stated that on the date of the incident, FIR was lodged at crime No. 280/2000 under

various sections of IPC and subsequently on account of the death of Purshottam, Section 302 of the IPC was also included. He has also stated that he

got recovered various weapons of offence from the accused persons.

P.W.23 Gop Prasad is also a resident of the same village. He is also hearsay witness as he had not seen the incident and someone had informed

him about the incident, who came running down to his place.

After carefully examining the evidence on record, this Court finds that the accused persons have taken defence that no weapons was seized from

them and in their defence under Section 313 of Cr.P.C., they have stated that they were not on the spot at the time and date of the incident but no

evidence was led by them. This Court also finds that although the death was caused due to DIC syndrome and is an exception under Section 300Â of

IPC, the death is of such nature, which has resulted on account of the complications or infections due to injuries suffered by the injured. Thus, this

Court is satisfied that the case falls under Section 304 Part II of the IPC. So far as the evidence, which has come on record, is concerned, it is

apparent that appellant No.8 Shyamu was subsequently included in the dying declaration. The dying declaration has also been recorded by the

Tehsildar after following due procedure of law and it cannot be said that the same is vitiated on account of any technicality. The contention raised by

the counsel for the appellants that the dying declaration cannot be relied upon for the reason that the death did not immediately take place on account

of the injuries caused by the appellants and as such the dying declaration cannot be held to be a dying declaration is not accepted as already observed

that the death was on account of various injuries inflicted by the appellants. This Court also finds that there are two documents which were

recorded by the deceased. One is the FIR whereas the other is the dying declaration. The only difference between these two documents is that the

name of appellant No.8 Shyamu has not been mentioned in the FIR which has been included in the subsequent dying declaration.

This Court also finds that appellant No.4 Ramu @ Balram Prasad, appellant No.7 Moti and appellant No.8 Shyamu @ Shyamsunder have

already been released on bail and their sentence is already suspended by the Court whereas the other appellants have already undergone sentence

imposed upon them. The aforesaid three appellants have already undergone four years of incarnation, out of seven years as awarded by the trial

Court.

This Court finds that deceased Purushottam died after 22 days of the incident and no injury was caused on the vital parts of his body. It is also not

the case of the prosecution that these three appellants were holding any dangerous sharp cutting weapon as all of three appellants are alleged to have

been armed with lathis only.

Under these circumstances, this Court finds that on account of the aforesaid mitigating circumstances, it would not be proper to again send the

appellants back to the jail after they were released on bail in the year 2005. Hence their sentences are reduced to the sentences already undergone by

them and as a result their appeal stands partly allowed. Bail bonds furnished by them are hereby discharged. C.C. As per rules.