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PETITIONER: RAMKISHORE PATEL & OTHERS

       Vs.

RESPONDENT: STATE OF MADHYA PRADESH

DATE OF JUDGMENT:       03/10/1996

BENCH: G.N. RAY, G.T. NANAVATI

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T NANAVATI.J.      This is an appeal against the judgment and order of the High Court  of Madhya  Pradesh in Criminal Appeal No. 762 of 1983. The  High Court  set aside  the judgment  and order of acquittal passed  by the  Court of  Sessions Judge, Sidhi in Criminal Case No. 113 of 1981.      On 12.7.81 at about 7.30 A.M. Thakurdin (deceased), His brother  P.W.6  Brijwasi,  son  P.W.8  Bhaiyalal  and  their servant  Budhi   were  working   in  their  ’Bakura’  field. Bhaiyalal and  Budhi were  sowing paddy  and  Thakurdin  and Brijwasi were  extracting grass  in one corner of the field. It was  the prosecution  case that  while these persons were working in their field, all the appellants, with three other accused, came  there armed  with lathis and a ’kudali’. They abused and  assaulted Thakurdin,  Brijwasi and  Bhaiyalal as they were taking water, for irrigating their field, from the field of Ramsiya. Thakurdin was given a ’kudali’ blow on his head and was also beaten by sticks. Brijwasi was given blows with sticks.  As Bhaiyalal raised shouts for help he was hit on his  head with  a ’kudali’ by Hubelal (Accused No.11). He became unconscious  and fell  down on the ground. Thereafter he was given stick blows by the other accused. This incident was seen  by the  neighbouring field  owner P.W.1 Ram Milan. P.W. 7  Shiv Prasad  who was  passing through  the field  of Thakurdin at  that time  was also beaten by the accused with sticks. Hearing the shouts raised by Thakurdin, Brijwasi and Bhaiyalal some  neighbouring   field owners  came there and, therefore, the  accused went away from that place. P.W.1 Ram Milan and  others then  went near  Thakurdin,  Brijwasi  and Bhaiyalal who  had received  injuries and  had fallen  down. They then took them to the village and from there to Churhat where P.W.1  Ram Milan  lodged the  first information report (Exh. P-1).  The three  injured were  then taken  to Churhat Hospital. There they were examined by P.W. 15 Dr. Padole. As he suspected  that all  the three  had received fractures he referred them  to the District Hospital at Sidhi. On the way Thakurdin died.  At the District Hospital P.W. 17 Dr. Sharma examined  them.   He  found   Thakurdin  dead.  He  admitted Bhaiyalal and  Brijwasi in  the hospital for treatment. P.W.

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13 Dr.  Tiwari performed the post mortem on the dead body of the deceased.  P.W. 11  Dr. Mishra  took X-rays of Bhaiyalal and Brijwasi. He found that the 4th and 5th fingers of right hand of  Bhaiyalal were  fractured. 5th  metacorpal bone  of right hand  of Brijwasi was also found fractured. Therefore, for causing  the death of Thakurdin and grievous injuries to Brijwasi and  Bhaiyalal, the  accused  were  tried  for  the offences punishable  under Section 147 and Sections 323, 325 and 302 all read with Section 149 I.P.C.      In order  to prove its case the prosecution relied upon the  evidence   of  eye-witnesses  P.W.1  Ram  Milan,  P.W.6 brijwasi, P.W.7 Shiv prasad, P.W.8 Bhaiyalal, P.W. 10 Ganesh Prasad  and   P.W.  12   Sidha  Nath   and  also  led  other corroborative evidence.  Except Ram  Kishore, Appellant No.1 (Accused No.1),  Ramdhari, Appellant No.5 (Accused No.5) and Jagdish (Accused  No.12 -  since deceased) all other accused denied their  presence  and  involvement  in  the  incident. Accused Jagdish,  Ram  Kishore  and  Ramdhari  took  up  the defence that  while Jagdish  was irrigating   his  field  by taking water  from the  field of Ramdhari he was attacked by Thakurdin, Brijwasi,  Bhaiyalal, P.W.1  Ram Milan,  P.W.  10 Ganesh prasad  and P.W. 12 Sidha Nath. On hearing his shouts Ram Kishore  and Ramdhari  ran to his rescue and that is how all three of them had received injuries. They denied to have caused injuries to Thakurdin and others.      The learned Sessions Judge believed the presence of the eye-Witnesses but  in view  of their  near relationship with the deceased  and in  view of  the ongoing dispute regarding the Bakura  field (Khasra  NO.2106)  between  Thakurdin  and Jagdish and  the proceedings  pending in  that behalf in the Court of  Tehsildar, Gopal  Bans, thought it unsafe to place any  reliance   upon  their   evidence  in  absence  of  any independent  corroboration.In  view  of  the  contradictions appearing in  the evidence  of the eye-witnesses the learned judge was  of the view that probably the incident took place when Thakurdin  and Brijwasi  were trying  to let  the water come in  their field  from the  field of Remsiya and Accused Jagdish obstructed them. He also held that the eye-witnesses had not  given a correct version before the court as regards the manner  and circumstances  in  which  the  incident  had started. He  also took  note of  the fact  that two  persons Shambhu and  Avadhlal were  falsely involved  as accused  by P.W.1. On  the basis  of the  medical evidence  the  learned judge disbelieved  the evidence  of the  eye-witnesses  that Thakurdin, Brijwasi  and Bhaiyalal had become unconscious as a result  of the  injuries received  by them. As Dr. padole, who had  examihed Thakurdin before he had died, did not find any fracture on his person the learned Sessions Judge was of the view  that it  was probable  that the said injuries were caused to  Thakurdin after  the incident, while he was being taken to the hospital, either as a result of travelling in a tractor or  by an  accidental fall. He therefore, recorded a finding  that  the  prosecution  has  failed  o  prove  that Thakurdin died  as a  result of  the injuries  caused to him during the  incident which was stated to have taken place in his field.  As the prosecution witnesses aid not explain the injuries on  the person of the accused, on this ground also, the learned judge doubted correctness of the evidence of the eye-witnesses. Thus,  disbelieving the  prosecution evidence the learned trial judge acquitted all the accused of all the charges levelled against them.      The State  filed an appeal against the acquittal of the accused. The  High Court  on re-appreciation of the evidence maintained acquittal  of A-7  Shambhu and  A-9  Avadhlal  as there was  no evidence to establish their involvement in the

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incident. With  respect to  the other accused the High Court was no  the view  that the  reasons given by the trial court for  acquitting   them  were  not  sound  and  some  of  its conclusions were  based more  on assumptions and conjectures than on  evidence. The  High Court  after appreciating  that eye-witnesses P.W.1, P.W.6 and P.W.8 were closely related to the  deceased   scrutinised  their  evidence  carefully  and thought it  fit to rely upon it as it was corrobrated by the evidence of P.W.7 Shiv Prasad, P.W.12 Sidha nath, the F.I.R. and the  medical evidence.  The High  Court  held  that  the evidence clearly  indicated that  the incident took place in the field Of deceased Thakurdin and not in or near the field of Ramsiya. It also held that Thakurdin and his men were not armed with  weapons and  that the  accused came  there armed with weapons  as they  saw Thakurdin and Brijwasi irrigating their field  with water from Ramsiya’s field and as this was not liked  by them,  because Jagdish  was claiming ownership over that  field. Even  after recording  a finding  that the three main  eye-witnesses had  suppressed the fact of taking water from  Ramsiya’s field while deposing before the court, the High Court found their evidence believable regarding the assault  by  the  accused.  As  regards  non-explanation  of injuries found  on the  accused Ram  Kishore,  Ramdhari  and Jagdish the  High Court  observed that there was no material to show  that they were received by them during the incident and that  they could  have beer self inflicted as deposed by P.W.15 Dr. Padole. Even otherwise also the injuries were not such as could have been noticed easily particularly when the accused were  many. The  doubt raised  by the trial court as the first  information report  was not  lodged by an injured person was  considered by  the High Court as unwarranted and unreasonable. The  High Court also held that the trial court was wrong  in believing  that the  medical evidence  was not consistent  with   ovidence  of  the  eye-witnesses  and  in rejecting their evidence on that ground. The High Court also found that what the trial court considered as contradictions were more  in the nature of omissions as regards the details of the  incident and, therefore, they were not sufficient to justify rejection of the evidence of those witnesses on that ground. As  regards the cause of death of Thakurdin the High Court found  that the finding recorded by the trial court in this behalf  was highly unreasonable as it was based only on the  suggestions   made  by  the  defence.  The  High  Court believing the eye witnesses and holding that Al the injuries to Thakurdin  were caused by the accused and that he died as a result  thereof set aside the Acquittal of all the accused except Shambhu  Prasad and  Avadhlal and  convicted them for the offences  punishable under Sections 147, 302/149,325/149 and 323/149 I.P.C. For the offences punishable under Saction 302/l49 the High Court sentenced them to suffer imprisonment for  life.   For  the  offences  punishable  under  Sections 325/149, 323/149  and 147  the High  court sentenced them to suffer rigorous  imprisonment for  two year,  six months and one year  respectively. ALL the sentences have been directed to run concurrently.      Accused Jagdish  died before  an appeal could be filed. Therefore, the  remaining 10  convicted accused  have  filed this appeal.  Mr Latil,  learned counsel  for the appellants contended that the  High Court overlooked the admission made by P.W.  6 Brijwasi that they had no enmity with the accused and thus  there  waas  no  reason  for  the  accused  to  go Thakurdin’s field  and attack  Thakurdin  and  his  son  and brother. He  also contended  that there  being no consistent and reliable  evidence the  High Court  rightly doubted  the evidence  of   eye-witnesses  as   regards  the  manner  and

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circumstances in  which the  incident began  but commited  a grave error  ln accepting  it as regards the role alleged to have been  played by  the accused. He further contended that the High  Court having  found that  probably accused Jagdish objected to  the taking  of water  from Ramsiya’s  field  by Thakurdin and  Brijwasi ought to have considered the defence version that  they   attacked Jagdish  and hearing his cries other accused went there running, as equally probable.In any cese, no  inference regarding  the accused having  formed an unlawful assembly with the Common object of causinq death of thakurdin   and beating  others could  have been  drawn. The learned counsel also submitted that the findings recorded by the trial court as regards the scene of offence, veracity of the witnesses  and the  cause of death of Thakurdin were not so unreasonable  al to  justifi interference in an acquittal appeal.      The contentich raised by the learned counsel as regards the absence  of any  enmity or motive is really misconceived as it is based upen an assumption and not the evidence. What P.W. 6  has stated  is that  they had  no  enmity  with  the accused, meaning  thereby that  they did not have any grudge against the  accused. The cross-examination of theis witness and other  witnesses clearly  goes to  show that  not only a dispute but  a litigation  was going  on between  Thakurdin, Bhaiyalal and  Brijwasi on  the one  hand  and  A-2  Harbons Patel, and  Jagdish Patel  on the  other hand  regarding the Bakura field   itself.  A-2 and  A-12 were claiming that the field belonged  to them  and it  was their  cases,as can  be noticed from the suggestions made to the witnesses in cross- examination that  tney were  in possession of that field and the deceased,  Bhaiyalal, Brijwasi and their men had gone to that fleld  on that  day to take over possession. Therefore, it is  not correct  to say  that there  was  no  motive  for Jagdis,Harbans and   other  accused who  belonged  to  their party to attack Thakurdin and his son and brother.      The contention  that the  prosecution    Witnesses  had tried to  change the  scene of orfence is aiso misconceived. Neither in  their evidence ror in their statement before the police the  witnesses nad stated that the incident had taken place in  the field  of Ramsiya. The learned counsel for the appellants, however  ,ubmitted that  the earliest version of the witnesses  regarding the  incident was that the incident happened while  Thakurdin and Brijwasi were irrigating their field wlth  water from  the field  of Ramsiya,  that a small brench was  made in  the raised  boundary of  the  field  of Ramsiya so  that the  collected water  naturally flowed into the field of Thakurdin whtch was on a lower revel. It was ln this manner  that Thakurdin  and Brijwasi  were taking water from the field of Ramsiya and not by going there and lifting or  bringing   water  in  any  other  manner.  The  evidnece discloses that  there was  one field  inbetween the field of Ramsiya and  Thakurdin. The  evidence is  that the  incident took place  when  Thakurdin,  Brijwasi  and  Bhaiyalal  were working in  their own  field and were irrigating it with the water coming  from the  field of Ramsiya. The incident, even otherwise, could  not have  happened in or near the field of Ramsiya because  Ramsiya had  no objection  to Thakurdin and Brijwasi taking  water  in  that  manner  and  that  becomes apparent from  the evidence on record that Ramsiya’s son was present in  his field  while the  water was  being taken  by Thakurdin and  Brijwasi. Accused  Jagdish had  no connection with that   field of Ramsiya. Jagdish did not have any field nearby, except  the Bakura  field over which he was claiming ownership. Therefore,  there was no reason for Jagdish to go to that  field of Ramsiya and prevent Thakurdin and Brijwasi

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from taking water from the field of Ramsiya. Jagdnsh and his brother Harbans  were claiming  ownership  over  the  Bakura field and,  therefore, it is more probable that when Jagdish and the  persons supporting  him saw Thakurdin, Brijwasi and Bhaiyalal ploughing  and irrigating  that  field  they  went there to prevent them from carrying on any agricultural more probable. Though  the erefore,  what the  eye-witnesses have deposed about  the place  of the incident appears to be more probable. Though  the eye-witnesses in their examination-in- chief did  not refer  to this  fact  of  taking  water  from Ramsiya’s field,  their  evidence  did  not  deserve  to  be discarded on that ground, as rightly held by the High Court.      As the  High Court  found that the reasons given by the trial court  for  disbelieving  the  evidence  of  the  eye- witnesses were  improper and unreasonable it was entitled to reappreciate the  evidence and  come to  its own conclusion. After carefully  going through  the  evidence  of  the  eye- witnesses we  do not  find that the High Court committed any grave error  in  appreciating  their  evidence.  Though  the learned counsel  for the  appellants was right in submitting that P.W.1  Ram Milan  had wrongly  implicated Two  innocent persons  namely  Shambhu  and  Avadhlal  while  lodging  the complaint, in  view of the explanation given by the witness, it cannot  be said  that it  was  a  deliberate  attempt  to falseiy involve  those two  persons. This  aspect  was  also considered by the High Court while appreciating the evidence of Ram  Milan and  other witnesses.  As a matter of fact, no other  witness  had  involved  them  as  the  assaitants  of Thakurdin, Brijwasi  and  Bhaiyalal  .  Except  drawing  our attention to  some contradictions which are in the nature of omissions the  learned  counsel  could  not  point  out  any serious infirmity  in the  evidence  of  any  of  the    eye witnesses.  Those   omissions  would    nave  achieved  some importance if  it had  become necessary to consider the role played by  each  accused  to  find  out  which  offence  was committed by  him 1ndividually.  All the  accused have  been convicted with  the help  of Section 149 and that conviction can be  sustained in view cf the clear and reliable evidence that they had all gone to the Bakura field where they had no reason to  go and  that  they  had  gone  there  armed  with weapons, leading  to a  reasonable inference they had formed an unlawful  assembly before  going to  that field  and  nad assaulted Thakurdin, Brijwasi and Bhaiyala in prosecution of their common object of beating them.      It was,  however, strenuously  contended by the learned counsel that  the evidence  of the  eye-witnesses should not have teen  relied upon  as  the  medical  evidence  did  not support them.  According  to  the  eye-witnesses  Thakurdin, Brijwasi and Bhaiyalal had become unconscious as a result of the lnjuries  caused to  them but  Dr. Padole of the Churhat Hospital  who   had  examined  them  had  found  that  their condntion was  not serious  and that  tney  were  in  a  fit condition to  speak. It  was not  stated by  the doctor that they could  not  have  become  unconsicous  considering  the nature oF  injuries received by them. Thakurdin had received many injuding  including a  lacerated  wound on his head and fractures of  eight ribs.  Brijwasi had  also received seven injuries. Bhaiyalal  had also received three injuries one of which was  an lncise wound on the right side of his head. It is quite  probable that  they regained  consciousness  later when they  reached the  Churhat Hospital. Therefore, on this ground,  the   medical  evicence   cannot  be   saia  to  be inconsistent with  the evidence of the eye-witnesses. It was next contenced  that rupture  of the spleen of Thakurdin was in all  probability not as a result of any blow given by the

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accused. This  submission was  made  on  the  basis  of  the evidence of  Dr. Padole  who  in  reply  to  a  hypothetical question nad  stated that  if the  spleen  of  a  person  is rutured and  blood  comes  out  he  would  die  immediately. Thakurdin had not died immediately and was alive till he was taken to  the Churhat  Hospital and  examined by Dr. padole. Therefore acording  to the  learned counsel  rupture of  the spleen of   Thakurdin  had taken  place  subsequent  to  the incident and  while he  was being  taken  an  a  tractor  to Churhat. This  contentin of  the learned  counsel cannot  be accepted because  Dr. padole  had explained  in his evidence that wnether  a person  would die  immedietely or  not arter rupture of  his spleen  would  depend  upon  tne  extent  of rupture. Dr.  Tiwari who  had performed  the post mortem was not asked  anything about  the extent  of rupture nor was an attempt made  to ascertain from him as to how long Thakurdin would have  survived as  a resuit  of rupture of his spleen. Therefore, on  this ground  also the medical evidence cannot be said  to be  inconsistent with  the evidence  of the  eye witnesses. It  was further  contended that as Dr. Padole nad not noticed  fracture of any rib of Thakurdin or the rupture of his  spleen and  as Thakurdin  himself had not complained about any  injury on  his chest  or abdomen,  it should have been held  that the prosecution had failed to establish that those injuries  were caused  by the  accused and  therefore, they  were   responsible  for  causing  his  death.  It  was submitted that more probably those injuries were received by Thakurdin while  he was taken in a tractor from the  Village to Churhat or as a result of an accidental  fall. It appears that Dr.  Padole had only superficially  examined  Thakurdin and other  injured witnesses  as he  wanted to see that they were immediately  shifted to  the District hospital at Sidhi for better  treatment. Dr. Tiwari who had examined Thakurdin at the  District Hospital, had found a contusion on the back with multiple  crcssings each  of which was of the dimension of 6  * 1",  5 *  1" and  4* 3"  suaggestive of  three blows having been  received by  Thaurdin on  his back. He had also noticec one  more contusion  on the  back about 1-/12" above that injury.  Dr. Tiwari  had also  noticed one contusion on the abdomen of Thakurd n. Thus, his evidence leaves no doubt whatsoever  tnat   the  serious   internal  injuries  namely fractures on  his eight  ribs and rupture of his spleen were the result  of  forceful  stick  blows  given  to  him.  The submission Thakurdin  miqht have  fallen  down  accidentally from the  tractor is  sheer speculation and does not deserve any serious  consideration. The evdence discloses that while Thakurdin was taken in a tractor he was placed on a cot. Not a single  question was  put to  any of the witnesses who had accompanied him  to suggest  that Thakurdin  had a fall from the tractor.  Therefore, the  contention  that  the  medical evidence does  not support the evidence of the eye-witnesses has no  merit. We find that the High Court has not committed any error  in appreciatina  the evidence of eye witnesses as would induce us to take a different view.      It was  lastly contended  that the   Hign Court has not recorded a  clear finding  that the  death of  Thakurdin was caused in  prosecution of  the common object of the unlawful assembly and, therefore, the conviction of the accused under Section 302  read with  Section 149  should be  regarded  as illegal. This  contention is  also without any substance. In paragraph 12 of the judgment the High Court has recorded its conclusion thus:  we  have  no  hesitation  in  holding  the respondents except  responaents Shambhu Prasad and Awadhlal, guilty of causing death of Thakurdin in furtherance of Their to do so."

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    As we  do not  find any  merit in  this  appeal  it  is dismissed. The  appellants .were  ordered to  be released on bail  by  this  Court.  therefore,    they  are  ordered  to surrender immediately to serve out the remaininq sentence.