Pooranlal vs The State Of Madhya Pradesh

Pooranlal & Anr. Appellant(s)

VERSUS

The State of Madhya Pradesh Respondent(s)

JUDGMENT

Abhay Manohar Sapre, J.

1) This appeal is filed by the two accused persons

against the Judgment/order of the High Court of

Madhya Pradesh at Jabalpur dated 08.12.2006 in

Criminal Appeal No.934 of 1991 whereby the High

Court partly allowed the appeal filed by the State Signature Not Verified

against the acquittal order dated 07.05.1991 of the Digitally signed by ANITA MALHOTRA Date: 2017.10.25 16:59:48 IST Reason: 1 Additional Sessions Judge, Khurai, Dist. Sagar in

Sessions Trial No.340 of 1990. The High Court while

upholding the acquittal of other three accused set

aside the acquittal of the appellants herein and

convicted them for an offence punishable under

Section 304 Part II read with Section 34 of the Indian

Penal Code, 1860 (hereinafter referred to as ‘IPC’) and

awarded each of them to undergo rigorous

imprisonment for a term of five years and to pay a fine

of Rs.2000/- each and, in default of payment of fine, to

further undergo simple imprisonment for a period of

three months.

2) In order to appreciate the issues arising in the

appeal, relevant facts need mention infra.

3) In short, the case of the prosecution on which the

trial against the appellants and other three accused

proceeded was as follows:

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4) One Hariya (deceased) was the resident of Village

Kublai. He was a railway employee. On 30.08.1990, at

around 5.00 a.m., he left for nearby Village-Khurai on

a cycle to catch a Train to join his duty at a nearby

place. At that time, it was heavily raining. When

Hariya was passing through a Mahua tree in village -

Nirtala, one person suddenly got down from the tree

and hit him with the Lathi (stick). Thereafter four

more persons armed with Lathis came there and took

him away from the road. All the five persons then

assaulted him with Lathies saying in Hindi "maro sale

ko, bada panch bana firta hai” (beat him bastard -

what does he think of him by becoming Panch-Head).

5) At that time, two sons of Hariya, namely, Ramesh

(PW-1) and Banshi (PW-2) were also reached there on

their cycle as they were also going to earn their

livelihood in nearby village. One Daryao Singh(PW-3)-a

3 villager, who was going on his tractor to fill diesel in

his tractor, also reached there.

6) These persons witnessed the incident of beating

and, therefore, ran towards Hariya to save him from

the assailants. The assailants, on noticing that a

group of persons is fastly approaching at the scene of

occurrence, ran away from there leaving injured

Hariya lying on the roadside.

7) Ramesh (PW-1), Banshi (PW-2), Daryao Singh

(PW-3) and some other persons took Hariya to Police

Station, Khurai in a tractor where he lodged the FIR

(Ex. P-33). Hariya was then taken to the Civil

Hospital, Khurai for medical treatment. Dr. Rakesh

Saxena (PW-11) found 11 injuries on the body of

Hariya. In the meantime, the SHO Police Station,

Khurai brought Naib Tahsildar, B.P. Shukla (PW-9) in

4 the Hospital for recording dying declaration of Hariya.

It was accordingly recorded (Ex.P-20).

8) Hariya struggled for survival but eventually

succumbed to the injuries on 13.09.1990 almost after

14 days of the incident. Dr. Prabhat Bharadwaj

(PW-14) performed the post mortem of his dead body.

9) According to the prosecution, the assailants and

Hariya belonged to the same caste. There was previous

enmity between one assailant-Gaya Prasad and Hariya

due to some verbal utterances, which were exchanged

between both of them in a marriage wherein the Samaj

Panchayat of which Hariya was the head, had imposed

some fine on Gaya Prasad. It is due to this reason,

this incident took place.

10) The Police Authorities then undertook the

investigation, which included collecting of material

evidence, preparation of site map, blood stained earth

5 from the place of occurrence, apprehending five

accused persons, namely, (1) Pooranlal (2) Gaya

Prasad (3) Mahendra (4) Shyamlal and (5) Ramlal,

their custodial interrogation, recording of statement of

several witnesses, recovery of sticks etc.

11) The five accused persons were accordingly

charged with the offences punishable under Sections

148, 302/149 and 342 IPC. All the accused persons

abjured their guilt and took a stand that they have

been falsely implicated in the case. So far as

Pooranlal, Shyamlal and Ramlal are concerned, they

took a plea that they never had any enmity with the

deceased because they reside in some other village.

12) To prove its case, the prosecution examined 17

witnesses. The learned Trial Judge, in his order dated

07.05.1991, recorded a finding that the prosecution

has failed to prove the charges against all the accused

6 persons beyond the shadow of doubt and accordingly

proceeded to record the finding of "not guilty" against

all of them. In other words, the Trial Court acquitted

all the five accused persons from the charges.

13) Challenging the order of acquittal, the State filed

appeal before the High Court. By impugned judgment,

the High Court partly allowed the appeal filed by the

State. The High Court upheld the acquittal of three

accused, namely, Mahindra, Shaymalal and Ramlal

but reversed the order of acquittal against two accused

persons, namely, Pooranlal and Gaya Prasad and

convicted both the accused under Section 304 Part II

read with Section 34 IPC and sentenced each of them

to undergo rigorous imprisonment for five years’ and a

fine of Rs.2000/- each and, in default of payment of

fine, to further undergo three months’ simple

imprisonment.

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14) Felt aggrieved, accused Pooranlal and Gaya

Prasad have filed this appeal by way of special leave

against the judgment of the High Court challenging

their conviction. So far as the State is concerned, they

accepted the order of the High Court by which three

accused, namely, Mahendra, Shyamal and Ramlal

were acquitted. In this view of the matter, the order of

acquittal of three accused named above has become

final.

15) Therefore, the only question, which arises for

consideration in this appeal, is whether the High Court

was justified in setting aside the order of acquittal of

Pooranlal and Gaya Prasad (appellants herein) and

was also justified in convicting both of them for an

offence punishable under Section 304 Part II read with

Section 34 IPC?

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16) Heard Mr. Vijay Pratap Singh, learned counsel for

the appellants and Mr. Sunny Choudhary, learned

counsel for the respondent.

17) Having heard the learned counsel for the parties

and on perusal of the record of the case, we find no

merit in this appeal. In other words, in our opinion,

the High Court was justified in setting aside the

acquittal order in respect of the appellants and

convicting them under Section 304 Part II read with

Section 34 IPC.

18) This is how the High Court dealt with the case of

the appellants while separating their case from other

three accused in Paras 22 to 26 and found them guilty

for commission of offence in question:

“22. Thus, even after ignoring the eye-witness account available on record, the conviction of R-1 Pooran and R-2 Gayaprasad could be founded on the First Information Report (Ex.P-33), lodged by the deceased, and his dying-declaration (Ex.P-20). In the aforesaid two documents, there is

9 consistency with regard to the motive prevailing in their minds and overt act of accused Pooranlal, who had caused injury on the head of the deceased even though no bony fracture was found and subsequent assault by other including Gayaprasad. However, it is also to be noticed that no opinion has been expressed by Autopsy Surgeon PW-14 Dr. Prabhat Bharadwaj that injury was sufficient in the ordinary course of nature to have caused death. Further, admittedly, the deceased had survived for 14 days after the incident.

23. Keeping all these factors in mind, we are of the opinion that as far as finding of ‘not guilty’ recorded against Mahendra, Shyamlal and Ramlal is concerned, it calls for no interference, as the same is based on proper appreciation of evidence.

Nothing could be pointed out to us that finding against them is also perverse, but as regards the finding in favour of R-1 Pooranlal and R-2 Gayaprasad, it is not only contrary to the evidence on record, but is also perverse and unreasonable.

24. However, as noted already, R-2 Gayaprasad only intended to settle score with Hariya for insulting him by requiring to pay the amount of fine for participating in the marriage of Hariya’s son. In other words, while striking the lathi blows, none of them had any intention to kill Hariya. In this view of the matter, R-1 Pooranlal and R-2 Gayaprasad deserved to be convicted for commission of offence of culpable homicide not amounting to murder and punishable under Secton 304 Part II of the IPC: See AIR 1987 SC 1265 (State of Orissa vs. Bhagwan Barik) and AIR 2000 SC 1374 (Camila Vaz vs. State of Goa.)

25. The incident had occurred nearly 16 years before and the R-1 Pooranlal and R-2 Gayaprasad were released on bail during pendency of this appeal. In these circumstances, sentence of rigorous imprisonment for a term of 5 years with

10 fine of Rs.2000/- would be sufficient to meet the ends of justice.

26. Accordingly, the appeal against acquittal of Mahendra, Shyamlal and Ramlal is hereby dismissed, but stands allowed in part against Pooranlal and Gayaprasad. While affirming their acquittal in respect of the offences punishable under Sections 148, 302, 302 read with 149 and 342 of the IPC, we convict R-1 Pooranlal and R-2 Gayaprasad for having committed an offence punishable under Section 304 Part II read with Section 34 of the IPC. Each one of them is sentenced to undergo rigorous imprisonment for a term of 5 years and to pay a fine of Rs.2000/- and in default of payment of fine, to further undergo simple imprisonment for a period of 3 months.”

19) We find no good ground to interfere with the

aforementioned findings of the High Court. In our

opinion, the findings of the High Court are based on

proper appreciation of evidence which the High Court

was entitled to record in an appeal arising out of the

order of acquittal once the leave to file the appeal to

challenge the order of acquittal was granted to the

State by the High Court.

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20) In other words, the High Court was entitled to

appreciate the evidence with a view to find out as to

whether the finding of acquittal recorded by the Trial

Court was legal or/and proper and was, therefore,

entitled to record its own finding of either affirmance

or reversal.

21) The evidence available on record, in our opinion,

did establish beyond reasonable doubt that the

appellants’ case was capable of being separated from

other three accused with a view to find out their role in

the incident as against the other three accused.

22) This we say for the reasons that, first, there was

no motive on the part of the accused persons

(appellants) to kill Hariya. Second, the intention was

to teach a lesson to Hariya because he had insulted

Gaya Prasad in Panchayat on an incident which had

occurred in marriage in their community in recent

12 past. Third, Dr. Bharadwaj (PW-14) who performed

post mortem did not say in his evidence that injuries

caused to Hariya were sufficient in the ordinary course

of nature to have caused death, and lastly, Hariya

survived for 14 days from the date of incident.

23) In the facts and circumstances of the case as

taken note of supra, we are of the considered opinion

that these factors were rightly taken into consideration

for holding the appellants guilty for committing offence

falling under Section 304 Part II of IPC.

24) Learned counsel for the appellants, no doubt,

vehemently argued that the appellants should also

have been acquitted like the other three accused

named above. It was also his submission that there

was no evidence much less sufficient evidence against

the appellants for holding them guilty for an offence

falling under Section 304 Part II IPC.

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25) However, in the light of what we have discussed

above wherein we have given our reasoning, it is not

possible to accept the submission of learned counsel

for the appellants. Moreover, we cannot again de novo

re-appreciate the evidence. It is not permissible

unless the findings of the High Court are wholly

perverse or against the evidence. Such is not the case

here.

26) In the light of foregoing discussion, we find no

merit in the appeal. The appeal thus fails and is

accordingly dismissed resulting in upholding of the

order of the High Court.

27) As a result thereof, the bail granted to Gaya

Prasad (appellant No.2) by this Court’s order dated

13.04.2009 stands cancelled. He is directed to

surrender and undergo the remaining jail sentence

14 awarded by the High Court in case, he has not so far

undergone awarded sentence.

28) So far as Pooranlal (appellant No.1) is concerned,

since he had not applied for bail, it may be that during

this period he may have completed his full period of

jail sentence. Since learned counsel for the appellants

is unable to make any statement on this issue, we are

of the view that the Trial Court will verify this fact from

jail records and other relevant material and after

ascertaining as to how much jail sentence Pooranlal

had already undergone out of five years, will

accordingly pass necessary orders.

………..................................J. [R.K. AGRAWAL]

.……...................................J. [ABHAY MANOHAR SAPRE] New Delhi;

October 25, 2017

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