Sushil Kumar and Another vs State of M.P.

A.K. Mishra, J.

The appellant No.1 Sushil Kumar has been convicted for committing an offence u/s 307/34 IPC and sentenced to four years'' R1. The appellant No. 2 K. Sunderrao has been convicted u/s 307 IPC and sentenced to four years'' R1. Aggrieved thereby, they have preferred the present appeal.

As per the prosecution case, both the accused were serving the Railway Department, at Bilaspur. The complainant Shankerlal (PW 1) is Porter (Khalasi) in IOW Construction Office and S.K. Bhattacharya is Clerk in the said office of Railway Department. The appellant No.1 Sushil Kumar was driver and K. Sunderrao (Appellant No.2) was Helper in the Railway Department at Bilaspur. In the month of May, 1988, accused Sushil Kumar had asked Shankerlal for giving Tarpolin which he refused and on that account, a little altercation took place between them. Thereafter, on the date of the incident i.e. 26.8.88, the complainant Shankerlal, after getting the cement bags unloaded from the truck in Godown, had come to report of unloading, to the clerk S.K. Bhattacharya. At that time, both the accused-appellants were sitting outside the office. When the complainant Shankerlal came out after reporting the unloading, accused persons abused him. Shankerlal did not pay any head to them. Thereafter, K. Sunderrao repeated the abuse and told that whether he was taking him to be a person like Sushil Kumar and K. Sunderrao stood up, caught hold of his hand and felled him down. Thereafter, K. Sunderrao sat on his chest and caught hold of his head with both of his hands and repeatedly dashed his head on the earth. Sushil Kumar was standing and was abusing. Bhattacharya tried to intervene. Sushilkumar abused him. Shankerlal became unconscious for sometime. Thereafter, both the accused went away, leaving Shankerlal there. Other employees of the Railway Department viz PW 3 Amitabh Sarkar and PW 1 P. Chillaiya also reached there. Rickshaw was requisitioned and Shankerlal was taken to the Railway Hospital. Hospital authorites moved the police. S.S. Singh (PW 8) Sub Inspector reached Hospital and recorded Dehati Nalishi -Ex. P.1 on the basis of which, an offence u/s 294, 506 and 323 IPC was registered. Later on, after medical examination report, on 28.8.88 offence u/s 307 IPC was added.

Sushil kumar and K.Sunderrao were arrested; and on medical examination of Shankerlal, Dr. S.K. Khanra (PW 6) as per his report Ex. P-4, found -

(1) Abrasion in the inner side of the lips and mouth.

(2) Abrasion and swelling on the back of the head.

(3) Slight swelling and abrasion on the right side of back of the head.

X-ray was advised. Dr. R.K. Jha (PW 7) performed the medical examination and submitted his opinion on the basis of X-ray report Ex. P-7-A and P-7-B that there was dislocation of atlas on axis and fracture of neural arch of axis. Shankerlal was admitted in the hospital on 26.8.88 and he was discharged on 9.12.88.

Accused abjured the guilt and contended that they were falsely implicated in the case.

Learned counsel for the appellants Shri Munish Saini submitted that it is a case where no offence u/s 307 IPC is made out. Accused K. Sunderrao was not armed with any weapon. He submitted that it is a case where the incident appears to have taken place suddenly and as per the prosecution allegations, K. Sunderrao had felled him (Shankerlal) down and on account of this, Shankerlal appears to have sustained injuries on account of that fall. Thus, according to him, it is, at the most, a case u/s 325 IPC and not the one u/s 307 IPC because, intention was not to cause death and the accused was not having the knowledge that his such act would cause the death of Shankerlal. With respect to the appellant Sushil Kumar, submission of the learned counsel is that in the circumstances the incident has taken place outside the office at the spur of moment, when Sushil Kumar was sitting outside the office alongwith K. Sunderrao. It was K. Sunderrao who was alone responsible for the injuries sustained by the complainant Shankerlal. Appellant Sushil Kumar was not sharing in the act of K. Sunderrao excepting abusing.

Learned counsel for the State supported the judgment passed by the Court below and has submitted that it is a case where the injury of serious nature was suffered by Shankerlal who has been hospitalized for a considerable period. Thus, offence u/s 307 is made out.

The medical evidence on the record goes to show that there were three injuries suffered by the injured Shankerlal (PW 1). The injury has been opined by Dr. R.K. Jha (PW 7) as grievous and also dangerous to life. He has deposed that at times patient dies immediately on sustaining such fracture on cervical region, and at the same time, Doctor has opined that the injury could also be caused by a fall. According to him, if a person who falls down, he can suffer such an injury. Dr. S.K. Khanra (PW 6) had initially examined the injured and he suspected fractures. He has also deposed that when a person falls on a rough surface with pieces of stones spread over it and some one sits on the chest of such fallen person then that person may receive injuries on his back also. Shankerlal (PW 1) injured himself has deposed that he was working as porter (Khalasi) in the Railways and had informed S.K. Bhattacharya regarding unloading of the cement bags in the godown. He say two accused persons sitting on the platform outside the office. When he came out, the accused persons abused him but he did not pay any heed to them. When they repeated abusing, he asked them as to whom they were abusing and why. On this, K. Sunderrao told him whether he considers him to be a person like Sushil Kumar. K. Sunderrao then caught hold of hand and felled him down. There were several stones on the ground on which he fell. After he fell down, K. Sunderrao sat on his chest, caught hold of his head by his hands and dashed his head against the earth. In the meantime, Sushil Kumar (appellant No.1) and inflicted blows by his leg. He has stated that K. Sunderrao has dashed him six to seven times against the earth. There is minor contradiction whether K. Sunderrao caught hold of the complaintant by his collar or caught hold of his hand but the same is not of much consequence. Shankerlal''s deposition has been corroborated by S.K. Bhattacharya (PW 2) also. He has deposed that both the accused were sitting outside the office from before. When Shankerlal came out of the office, K. Sunderrao uttered that the complainant should not consider him to be Sushil and he would set him right. From this, it appears that the accused persons were already present there and as mentioned in the FIR, there was some hot exchange of words and K. Sunderrao stated that the complainant should not consider him to be a feable person like Sushil Kumar and he is a person not to tolerate him and would set him right. This witness has further stated that there was hot exchange of words first between the complainant and the accused K. Sunderrao. Thereafter, he went inside his room. Then, he heard the noise of Shankerlal to help him. Then he came out. Shankerlal was lying and K. Sunderrao was beating him and dashed his head against the earth. He asked accused K. Sunderrao not to repeat it. Sushil Kumar asked him to run away. Thereafter, he went away. Thereafter he arranged for sending the injured to hospital. The witness was unable to say as to how many times head was dashed against the earth, by K.Sunderrao.

Amitabh Sarkar (PW 3) has also stated that K. Sunderrao felled down Shankerlal and caught hold of his hand. It may be seen that Sushil Kumar had not given any beating to the complainant. He has not stated that Sushil Kumar gave beating to Shankerlal. Amitabh Sarkar has also attributed beating part only to K. Sunderrao. Thus, beating has not been attributed to Sushil Kumar. Only abuse part has been attributed to him (Sushil Kumar). In view of the deposition of the eye witnesses available in the case, it is apparent that Sushil Kumar has not given any beating to the complainant. The version that Sushil Kumar inflicted injuries is not corroborated by any other witnesses. Injuries found on the person of injured were three and they were all caused by K. Sunderrao. Sushil Kumar was not responsible for any of the three injuries.

Question arises for consideration whether in the facts and circumstances of the case, it can be said that accused Sushil Kumar had a common intention with the other accused K. Sunderrao. It appears that his presence on the spot was natural since he is serving in the Railways and both the appellants were sitting on the platform before the complainant reached. It appears that the incidednt had taken place after there was exchange of hot words between K. Sunderrao and the complainant Shankerlal. Bhattacharya, on hearing the noise of exchange of hot words between these two, came out and gave them an understanding not to exchage not words, go to their house but still thereafter they continued to quarrel which resulted into K.Sunderrao catching hold of either hand or the collar of Shankerlal and felled him down. There were certain stones as deposed by Shankeralal himself on which he fell down. It appears that the fracture was suffered by Shankerlal because of his fell down on the stones and after that K.Sunderrao sat on his chest. For this act, K.Sunderrao alone was responsible. No doubt that Sunderrao sat on his chest and also dashed his head against the earth but the injury which resulted in the fracture must have been caused when he fell down by great force on the earth. Thus, it is clear that K.Sunderrao was responsible for injuries and co-accused Sushil Kumar never knew that what is going to be the result of the act of the other accused. The incident took place on the spur of the moment. On the contrary, the words uttered by K. Sunderrao that the comlainant should not take him to be a person like Sushil Kumar and he would set him right, go to show that Sushil Kumar had not provoked but rather there was exchange of hot words, and K.Sunderrao initiated the assault and he was responsible for the acts done by him. Sushil Kumar did not share any common intention with the other accused. He did not cause any grievous hurt or injury which may be dangerous to life.

In the case of Chhotu and others Vs. State of Maharashtra, , a similar question came for consideration i.e. common intention where assault was made by three persons on deceased by giving repeated blows upon him for sometime. One of the accused seen standing with knife in his hand. He did not cause any injury, it was held that he cannot be said to have shared common intention simply because of his being present and standing on the spot. Hence, he was given benefit of doubt. In another case Dharam Pal and others Vs. State of U.P., where the accused had inflicted lathi blows which were found only on eye-witness and not on the deceased, it cannot be inferred that he shared common intention to commit murder alongwith other accused. It is a settled principle that a member of the unlawful assembly knew that the complainant is likely to be killed, then, he alone will be liable for the common intention and other will not be liable for the common intention u/s 34 IPC (See Chikkarange Gowda and Others Vs. State of Mysore, .

Thus, the common intention has to be found out from the facts and circumstances of the case involved in the particular case. In the instant case, from the evidence on the record, it is clear that Sushil Kumar did not share the common intention to cause grievous hurt or injury so as to cause danger to life of Sankerlal. Question of common intention is one of fact. Common intention is very difficult to find and it has to be inferred from the facts and circumstances of the case, and the act of the parties, In the instant case, by the acts alleged against the accused Sushil Kumar, that he also joined accused K. Sunderrao and asked the other witness not to intervene and as stated by the complainant, he used his leg for giving blows on him but no such corresponding injury was found. Beating is not supported by other witnesses. Beating by accused Sushil Kumar is not proved. With respect to the act of the accused Sushil Kumar, he cannot be said to have, knowledge or shared the intention of causing grievous hurt or injuries. Even the police had registered the case initially not u/s 307 IPC but later on, on radiological examination, the case was converted to 307 IPC as the injury caused by K. Sunderrao was found to be dangerous to life. As the injury was caused only by K. Sunderrao, he has to be held responsible for causing injury which was dangerous to life.

Considering the facts and circumstances of the case, the appellant Sushil Kumar is acquitted by. ''giving benefit of doubt and the appellant K. Sunderrao is convicted u/s 307 IPC. As the injury suffered by the injured was dangerous to life and further considering the fact that fracture in the cervical bone was suffered by the injured, it is considered proper that the injured Shankerlal is compensated by imposition of some fine. In the absence of any appeal for enhancement of the sentence, imposition of fine would amount to enhancement of the sentence. In order to pay compensation and also considering the fact that no weapon was used by the accused K.Sunderrao and further considering the fact that 12 years have already passed, it is considered proper that the sentence of imprisonment awarded to K.Sunderrao be suitably reduced to two years from four years and a fine of Rs. 10,000/- be imposed and out of the said amount, an amount of Rs. 9,000/- be paid to the injured Shankerlal. The fine amount be paid within six months from the date of the Judgment failing which, the accused K. Sunderrao shall undergo four years R.I.