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Judgment
Challenge in this appeal filed under Section 378 read with Section 377 of the Cr.P.C. is to the acquittal recorded by the Additional Sessions Judge, Seonda vide judgment dated 10.09.1998 passed in ST No.22/1997, whereby, respondent No.1.-Sohan was acquitted from the charge of Section 302 of IPC but respondent No.1-Sohan was convicted under Section 325 of IPC and sentenced for period already undergone (about 1 year and 9 months) and respondent No.2-Ramdas was acquitted from the charge of Section 302 / 34 of IPC. By the same appeal alternatively enhancement of sentence of respondent No.1-Sohan is also prayed under Section 377 of Cr.P.C.
Brief facts of the case of prosecution is that on 26.11.1996 at about 8a.m., complainant-Shivdayal (PW-3), his elder brother Raghuvar and complainant''s wife Kasturi (PW-7) were cleaning their ruins (khandhar), regarding which dispute was existing between both the parties and case was also pending in the Court of S.D.M. Seonda. At the same time, both the respondents Sohan and Ramdas came their and claimed that this ruins belong to them and why they were cleaning it. Respondents gave filthy abuses, then complainant replied that he is having municipal council''s permission regarding ruins. At the same time, respondent No.1-Sohan with intention to kill assaulted with a stone over the head of the complainant''s elder brother Raghuvar (deceased) and blood was oozing out from his head and Raghuvar fell down and became unconscious. Respondent No.2-Ramdas was abusing at that time and was exhorting Sohan to assault on complainant''s family members. Bharat (PW-2) and Sita had also witnessed the incident. Just after the incident, injured and unconscious Raghuvar was brought by the complainant to the Police Station, Seonda and on the date of incident at 09:30 a.m. complainant''s FIR at police station Seonda was scribed by Sub- Inspector K.S.Ahirwar (PW-8) and signed by Town- Inspection C.R. Chandoriya (PW-9).
The injured Raghuvar was sent to hospital Seonda, where Dr. H.R. Morya (PW-4) found a lacerated wound on left side of Raghuvar''s skull with fracture of parietal bone and recorded MLC report (Ex.P-5). Looking to Raghuvar''s critical condition on the same day, he was referred to J.A. Hospital, Gwalior but during treatment he succumbed to injury at 05:00a.m. in the next morning on 27.11.1996. After receiving intimation about death of Raghuvar from J.A. Hospital, a marg report (Ex.P-7) was recorded at police station Kampoo, Gwalior on 27.11.1996. Head-Constable Ghanshyam (PW-6) after inspecting the dead body in presence of panch- witnesses prepared inquest memo (Ex.P-8) and the dead body was sent to postmortem. Dr. B.S. Tomar (PW-5) conducted the autopsy of Raghuvar on 27.11.1996 and recorded postmortem report (Ex.P- 6). In the opinion of Dr. B.S.Tomar, the death of Raghuvar had caused by coma because of injury to the brain and its effect, but for ascertaining mode of death, he advised that the circumstantial evidence should also be taken into consideration. The investigator C.R. Chandoriya (PW-9) on 27.11.1996 had prepared a spot map (Ex.P-1) and on the same day at 17:30 hours in presence of witnesses seized a red stone weighing about 1kg. from the spot vide seizure memo (Ex. P-2). Respondents were arrested during the investigation. Seized stone and blood stained cloths of the deceased were sent to the FSL Gwalior. After completion of investigation, charge- sheet was filed against the respondents in the Court of JMFC Seonda, who in turn, committed the case to the Court of Session Datia, from where it was received transferred by Additional Sessions Judge, Seonda District Datia conducted the trial.
Respondent No.1 Sohan denied the charge of Section 302 of IPC and respondent No.2 Ramdas denied the charge of 302/34 of IPC framed by the trial Court. In order to prove its case, prosecution examined as many as nine witnesses. Rambharose (PW-1), complainant Shivdayal (PW-3) and complainant''s wife Kasturi (PW-7) were the eyewitnesses. Another alleged eyewitness Bharat (PW-2) had turned hostile. It was the defence of the respondents that they have been falsely implicated due to dispute regarding title of ruins (Khandhar) and litigation relating to it. No defence witness was examined for the respondents. After hearing and considering the evidence, learned trial Judge totally acquitted the respondent No.2-Ramdas and respondent No.1-Sohan was acquitted from the framed charge under Section 302 of IPC, but he was convicted and sentenced under Section 325 of IPC as stated above.
The learned Public Prosecutor for the appellant/State submitted that it was clear from the evidence of complainant Shivdayal (PW-3) and his wife Kasturi (PW-4) that in furtherance of common intention of both respondents, deceased was assaulted by the respondent No.1-Sohan but the trial Judge erred in acquitting each respondent from framed charge and also erred in convicting and sentencing the respondent No.1-Sohan under Section 325 of IPC instead of framed charge under Section 302 of IPC, hence, it is prayed that the acquittal of respondent No.2 Ramdas and acquittal of respondent No.1-Sohan from charged offence and his conviction and sentence under Section 325 of IPC be interfered and each respondent be convicted and sentenced under the charged offences.
Per-contra, learned counsel for the respondents supported the judgment of trial Court, as eyewitness Shivdayal (PW-3) had deposed nothing against respondent No.2-Ramdas and his deposition was not challenged by the prosecution. It has been further argued by the respondent''s counsel that the trial Court rightly recorded the findings that the quarrel had suddenly occurred and in heat of passion without any intention to kill the deceased, respondent No.1 Sohan gave single blow by stone on head of the Raghuvar and prayed for dismissal of the State''s appeal.
Dr. B.S.Tomar (PW-5) deposed that on 26.11.1996 at 10:00AM in hospital Seonda on medical examination of Raghuvar aged about 80 years, he found a lacerated wound on left side of skull of size 2x1inch bone deep with fracture of parietal bone of skull and at that time Raghuvar was unconscious and unable to speak and it was intimated that injured was vomiting and for x-ray examination and treatment, he had referred the injured to higher hospital. Dr. H.R. Morya proved his MLC report (Ex.P-5).
Dr. B.S. Tomar (PW-5) deposed that on 27.11.1996 at J.A. Hospital Gwalior at about 12:00 hours on starting of postmortem of deceased Raghuvar aged about 80 years, following antemortem injuries were found on the dead body:-
One stitched wound over anterior left parietal region of the skull having length of 4.5cm;
A contusion size 3x2.5cm on right forearm;
An abrasion with scab on antero-lateral aspect of size of 7x3.5cm vertically placed;
A contusion present anterior left forehead of size 8x3.5cm vertically placed.
An abrasion, size 3x2.5cm horizontally placed over right leg.
An abrasion, size 9.5x1.5cm on right leg near the right ankle, vertically placed.
In the opinion of Dr. B.S. Tomar, all injuries of the deceased were antemortem. In his opinion except above-mentioned injury No.1, all other injuries were caused by hard and blunt object and only treating doctor was able to give opinion regarding injury found on the head and in his opinion injury to brain and its effect were fatal and he opined that for ascertaining mode of death, circumstantial evidence should be taken into consideration. Dr. B.S. Tomar proved his postmortem report (P-6).
The factum of the death of the deceased and his injuries were not disputed by the respondents. Hence, it was proved that Raghuvar had died due to injury caused to his head. Dr. B.S. Tomar (PW-5) also deposed that on dissection of the dead body in skull, left parietal and left temporal bones were found fractured and subdural haematoma of size 6x4x3cm was present in the brain and in his opinion the injury caused to the brain and its effect were capable to cause death in ordinary course of nature.
Complainant-Shivdayal (PW-3) and his wife Kasturi (PW-7) deposed that on the date of incident at 08:00AM, when complainant was cleaning the ruins (khandhar), then both respondents started abusing them and asked that why they are cleaning the ruins (Khandhar). Complainant- Shivdayal
eposed that the father of the respondent No.1, namely Shrilal was also abusing. Complainant and his wife deposed that at that time, respondent No.2- Ramdas was having an axe in his hand and respondent No.1-Sohan was climbed at attic (Atari). Both these witnesses deposed that respondent No.1- Sohan then came down from the attic (Atari) and, thereafter, Sohan struck by a stone on Raghuvar''s head and immediately Raghuvar fell down and complainant reached to the police station Seonda. Kasturi deposed that after coming down from the attic (Atari), Sohan picked a stone and threw on head of Raghuvar and blood was oozing out and Raghuvar fell down, then she started weeping. These witnesses deposed that this incident occurred due to dispute regarding ruins (Khandhar). Complainant deposed that he lodged FIR (Ex.P-4) at police station Seonda.
Rambharose (PW-1) deposed that on the date of incident at 7-8 AM, he was at his home and after hearing the voice of quarreling, he came out from his house, then he saw that there was happening a wordy altercation between respondent No.1-Sohan and complainant and his wife, in the meanwhile deceased Raghuvar came on the spot and at that time after coming down from the attic (Atari) Sohan struck by a stone over head of Raghuvar and, thereafter, Raghuvar fell down and blood was oozing out, thereafter, he fled away and later on he heard that Raghuvar had died. Rambharose (PW-1) deposed
that at the time of incident, Bharat (PW-2) and Sita were also present on the spot, but Sita was not examined before the trial Court and Bharat (PW-2) deposed that he had not seen any incident. Therefore, Bharat (PW-2) was declared hostile by the prosecution, thereafter, he deposed that respondent No.1-Sohan is his neighbor and Bharat admitted his signature on spot map (Ex.P-1) and seizure memo (Ex.P-2) relating to stone.
It is significant to mention here that eyewitness Rambharose (PW-1) did not mention the presence of respondent No.2 Ramdas on the spot. Evidence of Rambharose (PW-1) was not challenged by the prosecution on this point as he was not declared hostile by the prosecution, hence, in the light of well established legal position, Rambharose''s (PW-1) evidence is binding on the prosecution, which rebuts the evidence of complainant and his wife regarding role of Ramdas. Complainant and his wife deposed that respondent No.2 Ramdas had instigated the respondent No.1-Sohan, but actually what words were spoken by Ramdayal at that moment, there is material contradictions on this point in depositions of complainant and his wife. Though both have deposed that respondent No.2-Ramdas was having an axe at that time, there is no evidence that Ramdas even tried to assault anyone by his axe. Complainant Shivdayal had deposed that Ramdas had asked respondent No.1-Sohan to beat the complainant and
instigated to Sohan to kill anyone, thereafter, Sohan struck by a stone, but complainant''s wife Kasturi (PW-7) deposed that Ramdas uttered that complainant and his family members be assaulted. Complainant''s prompt FIR (P-4) has been proved by its scriber K.R.Ahirwar (PW-8) and T.I. C.R. Chandoriya(PW-9).
In FIR, it was mentioned by complainant that after felling down of his injured brother, Ramdas was abusing and uttering that complainant''s family members be assaulted. It is clear that regarding role of respondent No.2-Ramdas, complainant Rambharose''s (PW-1) deposition is not supported by his FIR and on the point of actually spoken words by Ramdas, the evidence of complainant and his wife are not having uniformity. According to unchallenged testimony of the eyewitness Shivdayal (PW-3) there was no any role of respondent No.2- Ramdas in the incident. It appears from the record that the trial Court has properly and legally analyzed the evidence available on record in relation to alleged role of the respondent No.2 Ramdas. As eyewitness Shivdayal (PW-3) had deposed nothing against Ramdas and his evidence was unchallenged by the prosecution on this point and rebutting the evidence of complainant and his wife, we are of the considered opinion that the trial judge had not erred in acquitting the respondent No.2-Ramdas from the charged offence. In our opinion the appeal in relation to acquittal of respondent No.2 Ramdas is meritless.
So far as role of respondent No.1-Sohan is concerned, it was clear that the incident was not premeditated and quarrel between complainant''s family and Sohan had occurred suddenly. It was clear from the evidence of the complainant and his wife and other witnesses that prior to the incident a dispute was existing between both the parties regarding title and possession of the ruins (Khandhar). Certified copies of continuous order sheets for the hearing dates 25.05.1995, 19.10.1995, 26.10.1996 and 07.11.1996 were produced before the trial Court which revealed that proceedings under Sections 145 and 146 of the Cr.P.C. were pending between Shrilal, father of the respondent No.1-Sohan and complainant Shivdayal (PW-3) before the Court of Sub-Divisional Magistrate Seonda, District Datia. According to the evidence of complainant and his wife, they reached in morning on the date of incident for doing cleaning work over ruins (Khandhar) and due to this suddenly quarrel and altercation started. It is clear from the evidence of eyewitness Kasturi, (PW-7) that after coming down from the attic (Atari) respondent No.1-Sohan picked a stone and struck by that stone and after throwing it towards Raghuvar caused injury over Raghuvar''s head. It is clear from the evidence of complainant and his wife that only a single injury over head of the deceased was caused by the respondent No.1-Sohan which proved fatal. It appears that the other injury found by Dr. B.S.Tomar (PW-5) at the time of conducting autopsy of the dead
body has caused due to falling of Raghuvar on the ground. The trial Court observed that the act committed by the respondent No.1-Sohan was committed in momentary passion and on placing reliance on some citations it has been observed by trial Court that criminal act done in anger-negatives the intention.
The limited scope of interference by this Court in appeals against acquittals is emphasized by learned counsel for the respondents, but so far as respondent No.1-Sohan is concerned, it is not a case of total acquittal, though he has been acquitted from the charge of Section 302 of IPC, but has been convicted and sentenced under Section 325 of IPC as aforesaid.
The above-mentioned findings of trial Court appears to be mutually contradictory as trial Court has held that respondent No.1-Sohan was having no intention to cause death or injury to the deceased. Hence, trial Court''s above-mentioned findings appears to be contradictory and not acceptable. The Apex Court in the case of Kamaljit Singh Vs. State of Punjab, (2003) 12 SCC 155, has observed in last line of para-8 as follows:-
"When the acquittal by the Trial Court was found to be on the basis of unwarranted assumptions and manifestly erroneous appreciation of evidence by ignoring valuable and credible evidence resulting in serious and substantial miscarriage of justice, the High Court cannot in this case be found fault with for its well merited interference " 18. In this case a much important fact has been totally ignored by the trial Court that Raghuvar was an 80 years old man and respondent No.1-Sohan has targeted his head by throwing stone which resulted in fracture of above-mentioned bones of skull and internal damage to the brain. In the case of Anda and others Vs. State of Rajasthan, AIR 1966 SC 148, it is observed that sometimes the nature of the weapon used, sometimes the part of the body on which the injury is caused and sometimes both are relevant. The trial Court has relied on some citations, which all are of short notes on relating cases and the facts and circumstances of those cases are easily distinguishable from the present case. According to prosecution''s case, hurling of stone by respondent No.1-Sohan was not without aim and according to clear evidence of Dr. B.S.Tomar (PW-5) the antemortem and fatal injury caused to the brain of the deceased and its effects were sufficient in ordinary course of nature to cause death. It appears that these important and distinguishing facts were ignored by the trial Court.
In the case of Lalya Dharma Khadkya Vs. State of Maharastra, 1995 Cr.L.J. 564 Bombay, where the accused had killed his own 16 years old son hurling stone on him, it was held that the accused had knowledge that his act was likely to cause the death of the victim but he had no intention to kill him
and in such circumstances it was found that his act squarely falls under Section 304 of the IPC and setting aside his conviction under Section 302 of the IPC and he was awarded RI for 5 years under Section 304 of the IPC. In a recent judgment in the case of Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247, the Apex Court has observed in para-23 as follows:-
"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." 20. The coordinate Bench of this Court in the case of Bhagwan Lal and Ors. Vs. State of M.P., 2017 (2) JLJ 172, has observed in last lines of para-19 as follows:-
"Also, it would be apparent that there is no allegation against the appellant Harkishan that he repeated the assault to deceased Bhaiyalal and hence, when he gave only a single blow to Bhaiyalal then it cannot be said that he intended to kill him. However, by that single blow deceased Bhaiyalal sustained fatal injury and he had died. Appellant Harkishan should know by giving such a forceful blow he would kill the deceased Bhaiyalal and, therefore, he should be liable for his overt act that he gave a powerful blow to deceased Bhaiyalal on his head causing his death though he did not intend to kill deceased Bhaiyalal" In above-mentioned case appellant Harkishan''s conviction and sentence was altered from Section 302 of IPC to conviction and sentence under Section 304
(Part-II) of IPC . In present case also the single blow given by the respondent No.1-Sohan through a stone was such forceful that deceased Raghuvar''s left parietal and left temporal bones of the skull were fractured and subdural haematoma was present beneath it and according to medical evidence, the injury to brain and its effect was the cause of death of the deceased. As the assault was not repeated by the respondent No.1- Sohan and the incident was not premeditated and occurred suddenly due to cleaning of the ruins (Khandhar) by the complainant and his wife, the case of respondent No.1-Sohan shall fall and would be covered under the fourth exception to Section 300 of the I.P.C.
In the light of above-mentioned citations and analysis of the evidence of the case available on record, we are of the considered opinion that the trial Judge has erred in convicting the respondent No.1-Sohan under Section 325 of IPC in place of Section 304 (Part- II) of IPC. Respondent No.1-Sohan''s case was not of total acquittal, hence, in the light of the above- mentioned citations, we are of the considered opinion that the trial Court''s findings regarding the offence committed by the respondent No.1-Sohan needs to be interfered with. Instead of offence punishable under Section 325 of IPC, he should have been convicted of offence under Section 304 (Part-II) of I.P.C. In our considered opinion, the state''s appeal in respect of respondent No.1-Sohan is partly acceptable.
Now we shall consider what would be appropriate sentence to be imposed upon the appellant No.1-Sohan under Section 304 (Part-II) of the IPC. The following facts deserve to be noticed in this regard:-
(I) The incident occurred in the year 1996. (II) The trial Court delivered impugned judgment on 19.09.1998. (III) This appeal is being decided in the year 2017. (IV) At the time of incident the age of appellant was near about 20 years. Now his age would be around 44 years. Thus, he is at present a man of middle age group, and that he may be father of grown-up children whose responsibility he is shouldering. (V) As per record, he has no previous conviction. (VI) He has been suffering agonies of trial in the case for about 22 years. (VII) The age of deceased at the time of incident was about 80 year. At this ripe age, the bones get weaken. (VIII) As per the proven fact, appellant No.1-Sohan hit him with a stone on his head. It is highly probable that the parietal bone of head of the deceased was broken due to said reason, though appellant No.1-Sohan had not hit him with stone forcefully. (IX) Appellant -No.1-Sohan has already suffered jail sentence for a period of 1 year and 9 months. (X) Imposing of imprisonment upon conviction under Section 304 (Part-II) is not mandatory.
Taking into consideration the aforenoted facts, we are of the considered opinion that no useful purpose would be sub-served in enhancing the jail sentence over and above the jail sentence he had already undergone and only awarding of fine sentence would be suffice. We therefore, impose jail sentence of the period the appellant No.1-Sohan had already undergone and fine sentence of Rs.5000/- (Five Thousand) in default whereof to suffer R.I. for six months under Section 304 (Part-II) of IPC. Appellant- No.1-Sohan shall deposit the fine sentence in the trial Court within 3 months from the date of delivering of this judgment, failing which the trial Court shall take steps for sending him to jail to suffer default jail sentence, subject to provision of Section 68 of IPC. We request learned counsel for respondent Shri D.R.Sharma to communicate at his level to Appellant- No.1-Sohan the decision of this Court directing him to deposit the fine sentence within 3 months. The bail bonds furnished by both the appellants shall stand discharged.
Accordingly, this appeal is disposed of with the aforesaid terms.