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2017 Supreme(MP) 491
IN THE HIGH COURT OF MADHYA PRADESH
N.K. Gupta and S.K. Awasthi, JJ.
Kok Singh and others v. State of M.P.
Criminal Appeal No. 04 of 2006 (Gwalior); against judgment of conviction and order of sentence dated 16.12.2005 passed by First Additional Sessions Judge, Dabra, District Gwalior in Sessions Trial No. 198 of 2005. Decided on 24.5.2017
Shailendra Singh and Arun Barua for appellants;
Dr. Anjali Gyanani, Public Prosecutor for respondent/State.
Headnote:(1) Penal Code, 1860 -- Ss.302, 326, 324, 147, 148, 149 and 34 -- conviction and sentence under by trial Court -- appeal -- it is not proved that five or more persons entered spot for a particular object to kill deceased or to cause grievous injury to victim Smt. Kranti or causing injuries to complainant -- no unlawful assembly constituted at spot -- trial Court committed error in convicting appellants of offence under sections, 147, 148, 149 and 34 of IPC -- it is accepted that appellants should be dealt with for their individual acts -- appeals filed by various appellants partly allowed.
Held : Hence, it is submitted that the appellants should be dealt with for their individual acts. The submission made by the learned counsel for the appellants is acceptable. There were no five persons or more who had a common object to kill the deceased Mangal Singh.
It cannot be said that the appellants had any common intention or object along with women accused persons to assault the victim Smt. Kranti (PW3).
No unlawful assembly was constituted at the spot. The trial Court has committed an error in convicting the appellants of offence under section 148 or 147 of IPC and also in convicting them with the help of section 149 of IPC. AIR 1985 SC 131 and AIR 2004 SC 5068 referred to.
(2) Penal Code, 1860 -- Ss.302, 326, 324, 146, 147, 148, 149 and 34 -- conviction and sentence under by trial Court -- appeal -- no unlawful assembly constituted at spot -- it is accepted that appellants should be dealt with for their individual acts -- appeal filed by appellant Mohan Singh allowed -- he is acquitted of all charges -- conviction and sentence against remaining various appellants set aside -- conviction and sentence under section 302 of IPC is maintained for appellant Bharat Singh -- conviction and sentence of various offence recorded against appellant Kok Singh set aside -- but under charge of sanction 302 of IPC -- he is convicted of offence under section 324 of IPC -- appeal partly allowed.
Held : In this case, it is apparent that shot of the appellant Kok Singh was not responsible for the death of the deceased Mangal Singh and when he had no common intention with the appellant Bharat Singh then he could not be convicted of offence under section 302 of IPC.
On the basis of the aforesaid discussion, the appeals filed by the various appellants are hereby partly allowed whereas the appeal filed by appellant Mohan Singh is accepted in toto. The conviction and sentence recorded against the appellant Mohan Singh for various offences are hereby set aside. He is acquitted from all the charges. The conviction as well as sentence against the remaining various appellants are hereby set aside, however, the conviction and sentence of offence under section 302 of IPC is maintained for the appellant Bharat Singh whereas the remaining conviction and sentence is set aside. AIR 1974 SC 1256, (2016)1 SCC (Cri.) 793, 2005 SCC (Cri) 1284 and AIR 1982 SC 62 followed.
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vfHkfUkZ/kkfjr % bl ekeysa esa ;g izdV gS fd vihykFkhZ dksd flag dh xksyh e`rd eaxy flag dh e`R;q ds fy, nk;h ugha Fkh rFkk tc og vihykFkhZ Hkkjr flag ds lkFk lkekU; vk'k; ugha j[krk Fkk rc mls naM+ lafgrk dh /kkjk 302 ds vijk/k ds v/khu nks"kfl) ugha fd;k tk ldrk FkkA
iwoZ dfFkr fopkj foe'kZ ds vk/kkj ij fofHkUu vihykFkhZx.k }kjk izLrqr vihysa ,rn~}kjk Hkkxr% eatwj dh tkrh gS tcfd vihykFkhZ eksgu flag }kjk izLrqr vihy tl dh rl Lohdkj dh tkrh gSA vihykFkhZ eksgu flag ds fo:) fofHkUu vijk/kksa ds fy, vfHkfyf[kr nks"kflf) rFkk naM+kns'k ,rn~ }kjk vikLr fd, tkrs gSA mls lHkh vkjksiksa ls eqDr fd;k tkrk gSA 'ks"k fofHkUu vihykFkhZx.k ds fo:) nks"kflf) ds lkFk naM+kns'k ,rn~}kjk vikLr fd;k tkrk gS fQj Hkh vihykFkhZ Hkkjr flag ds fy, naM+ lafgrk dh /kkjk 302 ds v/khu vijk/k dh nks"kflf) rFkk naM+kns'k dk;e j[kk tkrk gS tcfd 'ks"k nks"kflf) rFkk naM+kns'k vikLr fd;k tkrk gSA , vkb vkj 1974 ,l lh 1256] ¼2016½ 1 ,l lh lh ¼fØ-½ 793] 2005 ,l lh lh ¼fØ-½ 1284 rFkk , vkb vkj 1982 ,l lh 62 vuqlfjrA
Gupta, J. 1. The appellants have preferred the present appeal being aggrieved by the judgment of conviction and order of sentence dated 16.12.2005 passed by the First Additional Sessions Judge, Dabra, District Gwalior (M.P.) in Sessions Trial No.198/2005 whereby each of the appellants has been convicted of offence under sections 302 or 302/149, 326/149, 324/149, 147 and 148 of IPC and sentenced to life imprisonment with a fine of Rs.100/-, seven years' RI with a fine of Rs.100/-, three years' RI, one year's RI and two years’ RI respectively.
2. The prosecution's case, in short, is that on 13.3.2005 at about 8:00 a.m., the complainant Raghvendra Singh (PW1) lodged the FIR Ex.P-1 at Police Station Dabra, District Gwalior (M.P.) to the effect that he was the resident of village Chitawani. The appellants Kok Singh and others were also the residents of the same village who had tried to get the possession of the barn (Khalihan) of the complainant and his father and, therefore, they lit fire to the cow-dung cakes, in the barn (Khalihan) that were brought by the appellants and, therefore, a quarrel took place between the parties. On 13.3.2005 at about 7:30, the appellants came near the house of the complainant Raghvendra Singh (PW1). The appellant Kok Singh, Bharat Singh and Mohan had guns and other appellants including the absconded accused Lakshmi, Rati and Shakuntala had daggers and other weapons. When deceased Mangal Singh, father of the complainant Raghvendra Singh (PW1), came out of the house, the appellant Bharat Singh fired with a gun causing injuries on the right side of the back of the deceased Mangal Singh and the bullet crossed the entire chest and exited from the left side of the chest. The appellant Kok Singh fired with a half barrel gun causing injuries to the deceased Mangal Singh through the discharge of pellets. The appellants Harishankar and Kaptan Singh assaulted the complainant Raghvendra Singh (PW1) with daggers causing injuries on his head and fingers of left hand. When Smt. Kranti (PW3), the aunt of the complainant Raghvendra Singh (PW1), rushed to the spot to save him then she was restrained by Lakshmi and thereafter, Laxmi and Shakuntala gave blows of dagger causing injuries on her head, back and back-bone. The appellant Mohan Singh was also firing a half barrel gun and exhorted the other accused persons. Various witnesses like Rakesh Rawat (PW2), Devi Singh (PW5) and Shaitan Singh (PW6) etc. intervened in the matter and as a result the complainant Raghvendra Singh (PW1) could be saved. The deceased Mangal Singh, the complainant Raghvendra Singh (PW1) and victim Smt. Kranti (PW3) were taken to the hospital for their medico-legal examination and treatment. Dr. S.C. Gupta (PW11) examined the deceased Mangal Singh, victim Smt. Kranti (PW3) and the complainant Raghvendra Singh (PW1) and gave his reports Ex.P-19 to P-21 respectively. He found one entry wound on the back of the deceased Mangal Singh and corresponding exit wound on left side of the chest. One entry wound was found on middle of the left hand and the corresponding exit wound was also present. He found two incised wounds to Smt. Kranti (PW3) whereas one incised wound was found to the complainant Raghvendra Singh (PW1) and blunt injury was found on his head. A few injuries were found on the other parts of his body. The victims were referred for their X-ray examination. Dr. Ramesh Mangal (PW20) performed the radiological examination of the victim Smt. Kranti (PW3) and gave a report Ex.P-38. A fracture of right parietal bone was found sustained by her. Ultimately, the deceased Mangal Singh succumbed to his injuries. After observing various formalities, his body was sent for post mortem. Dr. P.L. Gupta (PW12) performed the post-mortem on the body of the deceased Mangal Singh and gave a report Ex.P-23. He found the aforesaid four injuries as indicated by Dr. S.C. Gupta (PW11) and on opening of the body he found that various vital organs of the body w
