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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 673 OF 2008
Ramswaroop and Another ....
Appellant(s)
Versus
State of Madhya Pradesh .... Respondent(s)
J U D G M E N T
P.Sathasivam,J.
1) This appeal has been filed against the judgment and
order dated 25.08.2005 passed by the High Court of Madhya
Pradesh, Bench at Gwalior in Criminal Appeal No. 82 of 1992
whereby the Division Bench of the High Court partly allowed
the appeal and confirmed the judgment dated 02.04.1992
passed by the IInd Additional Session Judge, Shivpuri,
Madhya Pradesh in Session Case No. 157/1989 against the
appellants herein under Sections 148, 302 read with 149,
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452 and 325 read with 149 of the Indian Penal Code, 1860
(for short ‘IPC’).
2) Brief facts:
(a) As per the prosecution, on 09.09.1989, at about 12
noon, two cows belonging to Badri (since deceased) entered
into the field of Ramjilal and Badri (accused), who is having
the same name as that of the deceased and damaged the
crops standing in the field which resulted into an altercation
between them. During altercation, Badri (since deceased)
inflicted a lathi blow on the head of accused-Badri and,
thereafter, he ran away from the spot. Thereafter, the
appellants herein along with Ramjilal, Badri, Roshan and
Brijmohan carrying luhangi (lethal weapon) and lathis in their
hands reached the house of Badri (since deceased).
(b) It is the further case of the prosecution that Chintu
Mahte (Appellant No. 2 herein) dragged him from his house
and Ramswaroop (Appellant No. 1 herein) gave a luhangi
blow on the left rib of the deceased. Ramjilal and Chintu
Mahte gave lathi blows on his neck and left rib respectively.
Roshan gave a lathi blow on his neck and Badri (accused)
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gave a lathi blow on his left cheek. The above said acts of
the accused resulted into severe injuries on the body of the
deceased which were sufficient to cause death in the
ordinary course of nature.
(c) During the above said incident, Gourabai (PW-5),
mother of the deceased, rushed to save her son whereupon
the accused Badri gave a lathi blow on her right hand due to
which she also sustained injuries.
(d) On the very same day, i.e. on 09.09.1989, Badri (since
deceased) along with his mother and son-Narayan (PW-11)
lodged an FIR at Police Chowki Amol Patha based on which
Crime No. 12/1989 under Sections 147, 148, 149, 325 and
452 of IPC was registered against the accused persons.
Thereafter, Badri (since deceased) was immediately rushed
to the hospital for medical examination and treatment but he
died on the way. Gourabai (PW-5) – the injured was also
referred for medical examination.
(e) After completion of the investigation, a charge sheet
was filed against all the accused persons for the offences
punishable under Sections 148, 302 read with Sections 149,
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452 and 325 read with Section 149 of IPC and the case was
committed to the Court of IInd Additional Session Judge,
Shivpuri and numbered as Session Case No. 157/1989.
(f) The Additional Session Judge, by judgment dated
02.04.1992, convicted all the accused persons under
Sections 148, 302 read with Sections 149, 452 and 325 read
with Section 149 of IPC and sentenced them to suffer
rigorous imprisonment (RI) for 1 year under Section 148 of
IPC, life imprisonment under Section 302 read with Section
149 of IPC and RI for 2 years for the offences punishable
under Section 452 and Section 325 read with Section 149 of
IPC.
(g) Aggrieved by the judgment and order of the Additional
Session Judge, all the accused persons preferred an appeal
being Criminal Appeal No. 82 of 1992 before the High Court
of Madhya Pradesh, Bench at Gwalior.
(h) By impugned judgment and order dated 25.08.2005,
the High Court confirmed the conviction and sentence of
accused Ramswaroop and Chintu Mahte (appellants herein)
under all the charges. The appeal in respect of accused
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Badri was abated due to his death during the pendency of
the appeal. The High Court set aside the conviction of rest of
the appellants therein, namely, Ramjilal, Roshan Lal and Brij
Mohan under Section 302 read with Section 149 of IPC while
affirming the conviction under Sections 148, 452 and 325
read with Section 149 of IPC and modified the sentence to
the period already undergone.
(i) Questioning the conviction and sentence, Ramswaroop
and Chintu Mahte, the appellants herein filed the above
appeal.
3) Heard Mr. Lakhan Singh Chauhan, learned counsel
appearing for the appellants-accused and Ms. Vibha Datta
Makhija, learned counsel appearing for the respondent-State.
4) The only point for consideration in this appeal is
whether the prosecution has established its case against the
present appellants beyond reasonable doubt?
5) Since the present appeal relates to Ramswaroop and
Chintu Mahte (appellants herein), there is no need to
traverse the role of all the other accused. There is no serious
dispute about unlawful assembly by the accused persons and
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initial incident of causing damage of crops by the cows of the
complainant. It is also clear from the materials placed by the
prosecution that after the altercation in the field, all the
accused armed with lathis and weapons in their hands
chased the deceased and entered into his house.
6) The prosecution heavily relied on the evidence of the
injured eye-witness Gourabai, who is none else than the
mother of the deceased, who also sustained injuries while
saving her son at the hands of the accused. She was
examined as PW-5.
7) Gourabai (PW-5), in her evidence, has stated that their
cows had damaged the crops standing in the field of Badri.
She also explained that when accused-Badri was trying to
take away their cows to the cattle pond, her son Badri (since
deceased) reached there and there was heated altercation
between them. According to her, the incident took place
near their house and the fields of the accused are also
situated opposite to her house. She explained that after
entering into her house, the accused persons gave lathi
blows to the deceased and when she intervened, she was
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also beaten up and her left hand was broken. She
specifically named the persons including the present
appellants who inflicted fatal blows on the chest of her son.
It is further seen from her evidence that her injured son was
taken to the Police Station and it was he who made a
complaint about the occurrence and from there he was taken
to the hospital for treatment, however, he died on the way to
hospital. Inasmuch as PW-5 being an injured witness, who, in
fact, tried to save her son at the hands of the accused, after
going into her entire statement, we concur with the
conclusion arrived at by the trial Court as well as the High
Court insofar as the present appellants are concerned.
8) It is not in dispute that PW-5 also sustained injuries
while saving her son and was present at the spot. She was
medically examined by Dr. R.K. Goel (PW-14), who submitted
the report which states as under:
“He had seen two contusions. One of size 3 cm x 2 cm on
the middle of right forearm, above this injury, there was a
lacerated wound of size 1 cm x ½ cms. Swelling was also
there and the same was paining on touching. The other
contusion was on the upper side of left forearm of size 1
cm x 1 cm. For injury No.1 X-ray examination was
advised. Injury No.2 was found simple in nature. Both the
injuries were caused by some hard and blunt object.
Ramkishan (PW-10) is the witness of inquest report as well
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as notice (Ex.P/24) which was issued to him for
preparation of the same.”
In such circumstance, we fully accept the evidence of PW-5
and conviction based on her statement is acceptable and
sustainable.
9) Coming to the injuries sustained by the deceased at the
hands of the accused, Dr. S.P. Jain (PW-4) had performed the
post mortem on the dead body and found the following
injuries:
“1. One contusion over left Pectoral region extending upto
amilla of size 8 cm x 4 cm.
2. One abrasion of right side of chest lower part of size 5
cm x 1 cm.
On opening of chest, fractures were found on the 4th, 5th
,
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th and 7th rib. Pleura was also found torn. The middle and
upper part of left lung was also found torn. About one litre
of blood had collected in pleura cavity. Both the chambers
were empty. Injuries were caused by hard and blunt
object within twenty four hours. His examination report is
Ex.P/7. In the re-examination he has submitted that the
injuries mentioned in the post mortem report (Ex.P/7) were
sufficient to cause death in the ordinary course of nature.”
10) Narayan (PW-11), son of the deceased, is also an eyewitness to the incident. He witnessed the incident and
narrated the whole story alleging the role played by each one
of the accused but his statement was recorded after 14 days
and no explanation was offered for the same. Even if we
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eschew the evidence of PW-11, as observed earlier, there is
no reason to disbelieve the version of injured eye-witness
(PW-5), mother of the deceased.
11) The High Court has rightly concluded that the present
appellants, viz., Ramswaroop and Chintu Mahte have caused
fatal blows due to which Badri succumbed to injuries while on
the way to hospital. Also, as per the medical evidence, the
injuries received by him at the instance of the present
appellants were sufficient to cause death in the ordinary
course of nature.
12) Finally, learned counsel for the appellants while pointing
out that Ramswaroop (Appellant No. 1 herein) has served 7
years, 4 months and 18 days in jail and Chintu Mahte
(Appellant No. 2 herein), aged about 80 years, has served 6
years, 4 months and 18 days, pleaded for leniency. We are
unable to accept the above claim of the learned counsel for
the appellants since the prosecution has established its case
beyond reasonable doubt, particularly, the role of the
appellants who caused fatal injuries. Since we are affirming
the conviction under Section 302, the Court cannot impose a
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lesser sentence than what is prescribed by law, however,
taking note of the age of Chintu Mahte (Appellant No. 2
herein), he is free to make a representation to the
Government for remission and if any such representation is
made, it is for the Government to pass appropriate orders as
per the rules applicable. In the above circumstance, the
sentence cannot be altered to the period already undergone
and the said request of the counsel for the appellants is
rejected.
13) Under these circumstances, there is no merit in the
appeal, on the other hand, we fully agree with the conclusion
arrived at by the High Court. Consequently, the appeal fails
and the same is dismissed.
………….…………………………J.
(P. SATHASIVAM)
………….…………………………J.
(JAGDISH SINGH KHEHAR)
NEW DELHI;
MARCH 12, 2013.
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