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2004(2) JLJ 83
S.L. Kochar and Ashok Kumar Tiwari, JJ.
Zitu Singh and others v. State of M.P.
Cri. Appeal No. 434 of 1995; against the judgment of III Additional Sessions Judge, Shajapur, passed in Sessions Trial No. 475 of 1994;
Decided on 21.10.2003.
On 8.1.1992, complainant Shivlal lodged a report that about one and a half months before, there was a quarrel between him and Chandersingh and since then, their relations were strained. On the fateful night of 8.1.1992, the complainant alongwith Baldeo and Bapu were trying to sleep in their field. At that time, the appellants came over there armed with lathis and farsi and started beating them. When the complainant; Bapu and Baldeo got up, the three assailants fled away from the place of occurrence, whom the complainant party identified in the electric light. In the assault, Shivlal sustained injuries on his head, Baldeo on his head, both hands, back and left leg and Babu sustained injuries on his right elbow. [Para 2
Held: In the night, between 11.00and 12.00 p.m. the appellants reached over there and started assaulting them by lathis and handle of farsi, the non-lethal weapons. They were having free hand to assault and commit murder and for that purpose they could have used a sharp-edged weapon farsi to meet their desire if they had pre-meeting of mind, pre-plan and pre-meditation for committing the murder. [Para 10
The number of injuries are also disclosing that though the accused persons were free to cause as many injuries for achieving their goal and there was no intervening factor to prevent them, but, they did not cause such. injuries. The deceased died because of head injury caused by lathi and there is no evidence on record to show as to who is the author of this injury.
Therefore, in view of these features of the prosecution case, it would be easy to discern that the appellants were having common intention to beat the deceased and injured persons and to cause grievous injuries to them and not to commit murder of deceased Baldeo. [Paras 11 & 12
Consequently, the conviction of the appellants for the offence under section 302 read with section 34 of the Indian Penal Code is not sustainable. However, the prosecution has proved its case beyond reasonable doubt for the offence punishable under sections 325 and 323 both read with section 34 of the Indian Penal Code. AIR 1975 SC 1506, AIR 1979 SC 1434, AIR 1976 SC 2069, AIR 1977 SC 1821 and AIR 1994 SC 32 followed. [Paras 13, 14 & 15
(2) Evidence Act, 1872--S. 60 --eye witnesses received injuries in same incident -- their presence cannot be doubted. [Para 6
(3) Criminal Practice--participation of all accused proved by injured eye witnesses, medical report and FIR--participation amply proved. [Para 8
(4) Penal Code, 1860--S.34--common intention for commission of crime-- determination of--prosecution has to establish pre-meeting of mind, pre-meditation and pre-plan between the accused persons. The common intention for commission of crime can be determined on the basis of the surrounding circumstances like motive, nature of weapon of offence, participation of the accused persons, nature of injuries caused and presence of any intervening factor because of which, the accused persons were prevented to finalise their decided plan. The prosecution has to establish pre-meeting of minds, pre-meditation and pre-plan between the accused persons for commission of a particular offence. [Para 10
(5) Evidence Act, 1872--S. 8--victim and accused having strained relation on account of grazing the cattle in field--motive established for commission of crime. [Para 10
(6) Penal Code, 1860--Ss. 325/34 and 323/34--offence under--considerable time elapsed--quarrel on trivial matter--accused persons aged 68, 50 and 40 years--five months and fifteen days‘ sentence duly suffered -- sufficient with fine of Rs. 7,000/- each. [Para 16.
(7) Criminal P.C., 1973--S. 357--fine of Rs. 21,000/- imposed on three accused-- compensation of Rs. 15,000/- ordered to be paid to LRs of deceased, Rs. 3,000/- to victim of grievous injury and Rs. 700/- to victim of simple injury. [Para 16
¼1½ naM lafgrk] 1860&/kkjk 325@34] 323@34 rFkk 302@34& pkgs ftruh {kfr;k¡ dkfjr djus ds fy, ‘kL= dh rh{.k /kkj okyk Hkkx ç;qDr djus dk i;kZIr djus dk i;kZIr volj&rFkkfi vfHk;qDrx.k us Qjlh dh ewB ls xaHkhj vkSj lk/kkj.k {kfr;k¡ dkfjr dh&e`rd dh e`R;q flj esa {kfr ds dkj.k&vijk/k /kkjk 325@34 rFkk 323@34 ds v/khu vkrk gSA
8-1-1992 dks ifjoknh f‘koyky us fjiksVZ nkf[ky dh fd yxHkx Ms<+ ekl iwoZ mlds vkSj panjflag ds e/; >xM+k gqvk Fkk vkSj rc ls muds laca/k rukoiw.kZ FksA 8-1-1992 dh nqHkkZX;iw.kZ jkf= dks cynso vkSj ckiw ds lkFk ifjoknh vius [ksr esa lksus dk ç;kl dj jgk FkkA mlh le; ykfB;ksa vkSj Qjfl;ksa ls l‘kL= vihykFkhZx.k ogk¡ vk, vkSj mUgsa ihVus yxsA tc ifjoknh] ckiw vkSj cynso mBs rc rhuksa geykoj] ftUgsa ifjoknhi{k us fo|qr ds çdk‘k esa ‘kuk[r dj fy;k Fkk] ?kVukLFky ls Hkkx x,A geys esa f‘koyky ds flj ij] cynso ds flj ij] nksuksa gkFk] ihB rFkk ck,¡ iSj ij rFkk ckiw dh nkfguh dqguh ij {kfr;k¡ igq¡phaA ¼iSjk 2½
vfHkfu/kkZfjr % jkf= esa vijkà 11-00 ls 12-00 cts ds e/; vihykFkhZx.k ogk¡ igq¡p dj mu ij ykBh rFkk Qjlh dh ewB ls] tks çk.kgj ‘kL= ugha gSa] geyk djus yxsA os geyk vkSj gR;k djus ds fy, fuckZ/k Fks rFkk ml ç;kstukFkZ rh{.k /kkj;qDr ‘kL= Qjlh dk mi;ksx viuh bPNkiwfrZ ds fy, dj ldrs Fks ;fn gR;k djus ds fy, mUgksaus fopkjksa dh iwoZ&lEefr] iwoZ&;kstuk rFkk iwoZ&fparu fd;k gksrkA ¼iSjk 10½
{kfr;ksa dh la[;k ls Hkh çdV gksrk gS fd ;|fi vfHk;qDr O;fDr vius mn~ns‘; dh iwfrZ ds fy, pkgs ftruh {kfr;k¡ dkfjr djus dks fuckZ/k Fks rFkk mUgsa jksdus ds fy, dqN ugha Fkk] rFkkfi mUgksaus ,slh {kfr;k¡ dkfjr ugha dhA e`rd dh e`R;q ykBh ls flj ij dkfjr {kfr ds dkj.k gqbZ rFkk vfHkys[k ij ,slk lk{; ugha gSa ftlls nf‘kZr gks fd ;g {kfr fdlus igq¡pkbZ FkhA
vr% vfHk;kstu i{kdFku dh bu fof‘k"Vrkvksa dh n`f"V ls] ;g lgtrk ls n`‘; gS fd vihykFkhZx.k dk lkekU; vk‘k; e`rd rFkk {kfrxzLr O;fDr;ksa dks ihVus vkSj mUgsa xaHkhj {kfr igq¡pkus dk Fkk] e`r cynso dh gR;k djuk ughaA ¼iSjk 11 ,oa 12½
ifj.kker% Hkkjrh; naM lafgrk dh /kkjk 34 ds lkFk ifBr /kkjk 302 ds v/khu vijk/k ds fy, vihykFkhZx.k dh nks"kflf) dk;e j[kus ;ksX; ugha gSA rFkkfi] Hkkjrh; naM lafgrk dh /kkjk 34 ds lkFk ifBr nksuksa /kkjk 325 rFkk 323 ds v/khu naMuh; vijk/k ds fy, vfHk;kstui{k us viuk i{kdFku ;qfDr;qDr lansg ls ijs lkfcr dj fn;k gSA , vkb vkj 1975 ,l lh 1506] , vkb vkj 1979 ,l lh 1434] , vkb vkj 1976 ,l lh 2069 , vkb vkj 1977 ,l lh 1821 rFkk , vkb vkj 1994 ,l lh 32 vuqlfjrA ¼iSjk 13] 14 ,oa 15½
¼2½ lk{; vf/kfu;e] 1872&/kkjk 60&çR;{kn‘khZ lk{khx.k dks mlh ?kVuk esa {kfr;k¡ igq¡ph&mudh mifLFkfr ij lansg ugha fd;k tk ldrkA ¼iSjk 6½
¼3½ nkafMd çFkk&lHkh vfHk;qDrksa }kjk Hkkx fy;k tkuk {kfrxzLr çR;{kn‘khZ lkf{k;ksa] fpfdRlh; fjiksVZ rFkk çFke bfÙkyk fjiksVZ }kjk lkfcr&Hkkx fy;k tkuk i;kZIrr% lkfcrA ¼iSjk 8½
¼4½ naM lafgrk] 1860&/kkjk 34&vijk/k djus dk lkekU; vk‘k;&dk vo/kkj.k&vfHkkstui{k dks vfHk;qDr O;fDr;ksa ds e/; fopkjksa dh iwoZ&lEefr] iwoZ&fparu rFkk iwoZ&;kstuk fl) djuk vko‘;d gSA
vijk/k djus ds lkekU; vk‘k; dk vo/kkj.k gsrq] vijk/k esa ç;qDr ‘kL= dh çÑfr] vfHk;qDr O;fDr;ksa }kjk Hkkx fy, tkus] dkfjr {kfr;ksa dh çÑfr rFkk fdlh ,sls e/;orhZ dkjd dh mifLFkfr ftlds dkj.k vfHk;qDr O;fDr viuh fofuf‘pr ;kstuk dks vafre :i ugha ns lds] tSlh lac) ifjfLFkfr;ksa ds vk/kkj ij fd;k tk ldrk gSA vfHk;kstui{k dks vfHk;qDr O;fDr;ksa ds e/; dksbZ fof‘k"V vijk/k djus ds fy, fopkjksa dh iwoZ&lEefr] iwoZ&fparu rFkk iwoZ&;kstuk fl) djuk vko‘;d gSA ¼iSjk 10½
¼5½ lk{; vf/kfu;e] 1872&/kkjk 8&[ksr esa i‘kq pjkus ds dkj.k vkgr vkSj vfHk;qDr ds laca/k rukoiw.kZ&vijk/k djus ds fy, gsrq fl)A ¼iSjk 10½
¼6½ naM lafgrk] 1860&/kkjk 325@34 rFkk 323@34&ds v/khu vijk/k&ikZIr le; O;ixr&rqPN fo"k; ij >xM+k&vfHkqDr O;fDr 68] 50 rFkk 40 o"khZ;&5 ekl vkSj 15 fnu dk naMkns‘k lE;d:is.k Hkksxk&çR;sd ij #- 7]000@& ds tqekZus ds lkFk i;kZIr gSA ¼iSjk 16½
¼7½ naM çfØ;k lafgrk] 1973&/kkjk 357&rhu vfHk;qDrksa ij #- 21]000@& dk tqekZuk vf/kjksfir&e`rd ds fof/kd çfrfuf/k;ksa dks #- 15]000@& xaHkhj {kfr ls vkgr O;fDr dks #- 3]000@& rFkk lknk {kfr ls vkgr O;fDr dks :- 700@& çfrdj lanÙk fd;k tkuk vknsf‘krA ¼iSjk 16½
Kochar, J.--1. The appellants named above, being dissatisfied with the judgment dated 15.5.1995, rendered by the learned Third Addl. Sessions Judge, Shajapur in. S.T. No. 475/94, thereby finding the appellants guilty of the offences punishable under sections 302/34, 325/34 and 323/34 of the Indian Penal Code, convicted and sentenced them each to suffer imprisonment for life with fine Rs. 500/-, in default of payment of fine to suffer RI for three months, RI. for one year and fine Rs. 200/-, in default of payment whereof to suffer R.I. for two months and fine Rs. 100/-, in default of payment of fine to suffer RI. for one month respectively, have preferred this appeal. All the substantive sentences are directed to run concurrently.
2. The brief facts of the prosecution case as unfolded before the trial Court were that on 8.1.1992, complainant Shivlal lodged a report that about one and a half months before, there was a quarrel between him and Chandersingh and since then, their relations were strained. On the fateful night of 8.1.1992, the complainant alongwith Baldeo and Bapu were trying to sleep in their field. At that time, the appellants came over there armed with lathis and farsi and started beating them. When the complainant, Bapu and Baldeo got up, the three assailants fled away from the place of occurrence, whom the complainant party identified in the electric light. In the assault, Shivlal sustained injuries on his head, Baldeo on his head, both hands, back and left leg and Babu sustained injuries on his right elbow. They cried for help but, none turned up to rescue them. Since it was late hours in the night, the report was lodged the next day and investigation ensued.
3. The injured were sent to the hospital for medical examination. The injury-reports of Bapu, Shivlal and Baldeo are Ex. P-3, P-18 and P-19 respectively. Baldeo died during treatment and his postmortem Examination Report is Ex. P-1. Spot map was prepared and statements of witnesses were recorded. After completion of investigation, the appellants were charge-sheeted. They abjured their guilt and claimed trial. The learned trial Court recorded the statements of the witness and after hearing both the parties, found the appellants guilty of the offences with which they were charged convicted and sentenced them each as indicated herein above.
4. We have heard Shri Viveksingh, learned counsel for the appellants and Shri G. Desai, learned Dy. Advocate General, appearing for the State and perused the entire record.
5. Deceased died during the course of treatment. Autopsy on his dead body was conducted by Dr. RC. Sharma (PW 1) and issued the Postmortem Report (Ex. P-1). According to the postmortem report, Baldeo died due to head injury leading to brain. It is, thus, clear that Baldeo met a homicidal death. Even otherwise, the homicidal death of Baldeo has not been challenged by the learned counsel for the appellants before this Court.
6. The conviction of the appellants is based on the eye-witnesses' account given by PW 3 Shivlal and PW 6 Bapu. Both of them have received injuries in the same incident alongwith the deceased Baldeo.
PW 3 Shivlal sustained grievous injury on his right shoulder. He was examined by Dr. R.S. Dangad (PW 10). His injury report is Ex. P-18. Dr. Kapil Sahai (PW 5) proved the X-ray report vide Ex. P-6 and P-7 of Shivlal. Their presence on the spot along with the deceased Baldeo is amply proved by their own statements. Therefore, there is absolutely I no room for doubt that they had witnessed the incident and also sustained injuries in the same incident.
7. PW 3 Shivlal has named three appellants about their presence and participation for causing injuries to deceased Baldeo to him and PW 6 Bapu. Whereas PW 6 Bapu has identified and named only appellant No.3 Chandersingh. Since he did not name and identify the appellants No.1 and 2, he was declared partly hostile. He was medically examined by PW 4 Dr. Anand Kumar Parmar who found two simple i
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