RAMSWAROOP AND ANOTHERversusSTATE OF MADHYA PRADESH

                        [2013] 4 S.C.R. 198


A                RAMSWAROOP AND ANOTHER
                                  v.
                 STATE OF MADHYA PRADESH
                (Criminal Appeal No. 673 of 2008)

B                        MARCH 12, 2013
     [P. SATHASIVAM AND JAGDISH SINGH KHEHAR, JJ.]

       Penal Code, 1860 - s. 148, s. 302 rlw s. 149, ss. 452 and
  325 rlw s. 149 - Murder - Unlawful assembly assaulted victim
C with various weapons resulting in his death - One injured eye-
  witness - Conviction of accused-appellants - Justification -
  Held: Justified - No reason to disbelieve the version of injured
  eye-witness (PW-5), the mother of the victim who 'Sustained
  injuries while trying to save her son - High Court rightly
D concluded that the appellants caused fatal blows due to which
  the victim succumbed to injuries while on the way to hospital
  - Also, as per the medical evidence, the injuries received by
  the victim at the instance of the appellants were sufficient to
  cause death in the ordinary course of nature.
E
        Sentence I Sentencing - Murder case - Death caused
  due to assault with various weapons - Accused-appellants
  convicted uls.302 /PC and sentenced to life imprisonment -
  Plea of appellants for leniency in sentencing - Held: Not
F tenable, since prosecution established its case beyond
  reasonable doubt, particularly, role of the appellants who
  caused fatal injuries - Conviction u/s. 302 being affirmed, the
  Court cannot impose a lesser sentence than what is
  prescribed by law, however, taking note of the age of appellant
  no. 2, he is free to make a representation to the -Government
G for remission - Penal Code, 1860 - s. 302.

      The prosecution case was that the cows of the
  deceased had damaged the crops standing in the field
  of the accused-appellants and this bad resulted in a
H                         198
 RAMSWAROOP v. STATE OF MADHYA PRADESH                 199

heated altercation between the parties; that thereafter the    A
accused-appellants and the other accused persons
formed an unlawful assembly and carrying lathis and
other weapons in their hands they chased the deceased
and entered into his house and thereafter assaulted him
with the said weapcms which ultimately proved fatal. PW5,      B
mother of the deceased, also allegedly sustained injuries
while trying to save her son at the hands of the' accused.

    The trial court convicted the appellants and the other
accused persons under Sections 148, 302 read with
Sections 149, 452 and 325 read with Section 149 of IPC         C
and sentenced them to RI for 1 year under Section 148
of IPC, ·1ife imprisonment under Section 302 read with
Section 149 of IPC and RI for 2 years under Section 452
and Section 325 read with Section 149 of IPC. The
conviction and sentence of the appellants was confirmed        D
by the High Court, and therefore the instant appeal.

    Dismissing the appeal, the Court
      HELD: 1. PW-5, in her evidence, has stated that their    E
 cows had damaged the crops standing in the field of
.accused-Badri. She also explained that when accused-
 Badri was trying to take away their cows to the cattle
 pond, her son reached there and there was heated
 altercation between them. According to her, the incident      F
 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 also beaten up and her left hand wa~
 broken. She specifically named the persons including          G
 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
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    200     SUPREME COURT REPORTS            [2013] 4 S.C.R.


A there he was taken to the hospital for treatment, however,
   he died on the way to hospital. Inasmuch as PW-5 was
   an injured witness, who, in fact, tried to save her son at
  the hands of the accused, after going into her entire
  statement, this Court concurs with the conclusion arrived
s at by the trial Court as well as the High Court insofar as
  the present appellants are concerned. The evidence of
  PW-5 and conviction based on her statement is
  acceptable and sustainable. PW-11, son·of the deceased,
  is also an eye-witness to the incident. He witnessed the
c 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 the evidence of PW-11 is eschewed,
  there is no reason to disbelieve the version of injured eye-
D witness (PW-5), mother of the deceased. [Paras 7, 8 and
  10] (204-C~G; 205-C, G-H; 206-A]
     · 2. The High Court has rightly concluded that the
  present appellants have caused fatal blows due to which
  the deceased succumbed to injuries while on the way to
E hospital. Also, as per the medical evidence, the injuries
  received by hin1 at the instance of the present appellants .
  were sufficient to cause death in the ordinary course of
  nature. [Para 11] (206-B-C]

F      3. The plea of appellants for leniency in sentence
  cannot be accepted since the prosecution has
  established its case beyond reasonable doubt,
  particularly, the role of the appellants who caused fatal
  injuries. Since the conviction under Section 302 is being
  affirmed, the Court cannot impose a lesser sentence than
G what is prescribed by law, however, taking note of the
  age of appellant no. 2, 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
H
 RAMSWAROOP v. STATE OF MADHYA PRADESH                       201

circumstances, the sentence cannot be altered to the                 A
period already undergone as requested by the
appellants. [Para 12] [206-C-F]

    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 673 of 2008.                                                     B
    From the Judgment & Order dated 25.08.2005 of the High
Court of Madhya Pradesh bench Gwalior in Criminal Appeal
No. 82 of 1992.

    Lakhan Singh Chauhan, Anil Shrivastav for the Appellants.        c
    Vibha Datta Makhija for the Respondent.

    The Judgment of the Court was delivered by

     P. SATHASIVAM, J. 1. This appeal has been filed against         D
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 llnd Additional Session Judge,              E
Shivpuri, Madhya Pradesh in Ses;;ion Case No. 157/1989
against the appellants herein under Sections 148, 302 read with
149, 452 and 325 read with 149 of the Indian Penal Code,
1860 (for short 'IPC').

    2. Brief facts:                                                  F

      (a) As per the prosecution, on 09.09.1989, at about 12
noon, two cows belonging to Sadri (since deceased) entered
into the field of Ramjilal and Sadri (accused), who is having the
same name as that of the deceased and damaged the crops              G
standing in the field which resulted into an altercation between
them. During altercation, Sadri (since deceased) inflicted a lathi
blow on the head of accused-Sadri and, thereafter, he ran away
from the spot. Thereafter, the appellants herein along with
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     202       SUPREME COURT REPORTS                  [2013] 4 S.C.R.


 A Ramjilal, Sadri, Roshan and Srijmohan carrying luhangi (lethal
   weapon) and lathis in their hands reached the house of Sadri
   (since deceas~d).

         (b) It is the further case of the prosecution that Chintu Mahte
 S (Appellant No. 2 herein) dragged him from his house and
   Ramswaroop (Appellant No. ~ 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 Sadri (accused) gave a lathi blow
   on his left cheek. The above said acts of the accused resulted
 C 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
 D accused Sadri 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, Sadri (since
   deceased) along with his mother and son-Narayan (PW-11)
 E 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, Sadri (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
 F 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,
 G 452 and 325 read with Section 149 of IPC and the case was
   committed to the Court of llnd Additional Session Judge,
   Shivpuri and numbered as Session Case No. 157/1989.

        (f) The Additional Session Judge, by judgment dated
--H 02.04.1992, convicted all the accused persons under Sections
RAMSWAROOP v. STATE OF MADHYA PRADESH                       203
          [P. SATHASIVAM, J.]
148, 302 read with Sections 149, 452 and 325 read with              A
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.                   B

    (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.
                                                                    c
     (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 Sadri
was abated due to his death during the pendency of the appeal.      D
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          E
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              F
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        G
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 initial          H
     204      SUPREME COURT REPORTS                 [2013] 4 S.C.R.


 A 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.
 B
         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.
c
        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-Sadri was trying to take
   away their cows to the cattle pond, her son Badri (since
D 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
E deceased and when she intervened, she was 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
F 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
G 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
H which states as under:
 RAMSWAROOP v. STATE OF MADHYA PRADESH                     205
           [P. SATHASIVAM, J.]
    "He had seen two contusions. One of size 3 cm x 2 cm on A
    the middle of right forearm, above this injury, there was a
    lacerated wound of size 1 cm x % ems. 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. B
    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 as notice
     (Ex.P/24) which was issued to him for preparation of the
    same."                                                      c
    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       D
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.
                                                                   E
    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,
    6th and 7th rib. Pleura was also found torn. The middle and
    upper part of left lung was also found torn. About one litre   F
    of blood had collected in pleura cavity. Both the chambers
    were empty. Injuries were caused by hard and blunt 9bje~~
    within twenty four hours. His examination report is Ex.P/7.
    In the re-examination he has submitted that the injur~es
    mentioned in the post mortem report (Ex.P/7) w~re              G
    sufficient to cause death in the ordinary course of nature."
     10. Narayan (PW-11), son of the deceased, is als~ an eye-
witness 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        H
    .. 206     SUPR.EME. COURT REPORTS              [20l3] 4 S.C.R.


A explanation was.offered for the same. Even if we 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
B appellants, viz;, Ramswaroop and Chintu Mahte have caused
  fatal blows due to which Sadri 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
C 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 andChintu Mahte (Appellant
   No. 2 herein), aged about 80 years, has served 6 years, 4
D 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
E under Section 302, the Court cannot impose a 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
F 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
G 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.
     8.8.B.                                     Appeal dismissed.
H