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2002 DIGILAW 216 (MP)

Prabhoo alias Prabhoo Dayal v. State of M. P.

2002-02-26

RAJEEV GUPTA

body2002
JUDGMENT Gupta, J. -- 1. This judgment shall govern the disposal of Criminal Appeal No. 1200/1990 also. 2. Appellant Prabhoo @ Prabhoo Dayal stands convicted under section 323, IPC with sentence of rigorous imprisonment for 1 year for causing simple' hurt on the back of deceased Kosa Bhumia. Appellant Jugal Jugal Kishore has been found guilty of causing the fatal injury on the head region of the deceased by means of a lathi in the noon of 12.6.1989, leading to his death the same night, vide impugned judgment dated 12.7.1990, passed by Additional Sessions Judge, Sihora, District Jabalpur in S.T. No. 447/89 and, therefore, has been sentenced to imprisonment for life under section 302, IPC. 3. Appellants' conviction is founded on the eye-witness account of PW 1 Kalhi, PW 2 Sushi I Kumar and PW 3 Ganpat, whose evidence was found corroborated by the medical evidence of PW 4 Dr. S.C. Vishnoi and PW 5 Dr. Y.R. Kolhe. 4. Ku. C.V. Rao, the learned'counsel for the appellants, vehemently argued that the trial Court has erred in recording the appellants' conviction on the eye-witness account of PW 1 Kallu, PW 2 Sushil Kumar and PW 3 Ganpat, whose evidence suffers from serious infirmities. 5. PW 2 Sushi I Kumar, son of deceased Kosa Bhumia, has categorically deposed that on the fateful day, both the accused persons, during a wordy quarrel between his father Kosa and the accused persons, dealt lathi blows on him, an a result of which his father fell on the ground. He proved to have lodged the first information report about the incident. Though he was subjected to a lengthy cross-examination running into two pages, but nothing substantial could be elicited by the defence which may render his evidence unworthy of credence. His evidence in the Court stands amply corroborated by his own first information report which was promptly lodged within 6 hours of the incident, containing all the essential seeds of the prosecution case. 6. The two other eye-witnesses; PW 1 Kallu and PW 3 Ganpat, deposing in line with the evidence of PW 2 Sushil Kumar, stated that on the fateful day, accused Jugal @ Jugal Kishore caused injury on the head region of deceased Kosa by means of a lathi, whereas the other accused Prabhoo @ Prabhoo Dayal dealt lathi blows on his back. It is also in their evidence that Kosa succumbed to his injuries the same night. Both these witnesses stood firm in their cross-examination and their evidence could not be shaken at all. We do not find any earthly reason for these witnesses to depose falsely against the accused persons. 7. On a close scrutiny of the evidence of PW 1 Kallu, PW 2 Sushil Kumar and PW 3 Ganpat, we are satisfied that their evidence does not suffer from any infirmity whatsoever and the same can safely be acted upon. We. Therefore, do not find any infirmity in the finding recorded by the trial Court holding appellant Jugal @ Jugal Kishore guilty of causing the fatal injury on the head region of deceased Kosa, resulting in his death, and appellant Prabhoo @ Prabhoo Dayal of causing simple hurt on the back 'of the deceased. 8. The learned counsel for the appellants then submitted that the act of appellant Jugal @ Jugal Kishore of causing the fatal injury on the head region of deceased Kosa by means of a lathi during the course of a wordy quarrel between them, would not amount to the offence of 'murder' punishable under section 302, IPC. 9. The Apex Court, while considering the nature of the offence proved against the accused persons in the case of Krishna Tiwari and another v. State of Bihar reported in JT 2001 (3) SC 331, observed in para 4 : "4. In our view, there is much substance in the contentions raised by the learned senior counsel for the appellants. From the evidence on record, it is apparent that the incident took place all of a sudden. It has been admitted by the prosecution witnesses that prior to the incident; relations between the brothers were cordial. It has been specifically stated by informant PW 7 Anil Tiwari in his cross-examination that they were having best of relations with the accused prior to the incident. He has also denied the suggestion that there was property dispute between them. The witness has also admitted that the appellant Krishna Tiwari came empty handed and that incident took place because they scolded Manoj Kumar and deceased removed him from the middle of the door. He has also stated that after coming down, Krishna Tiwari caught hold of the collar of Paramhans and asked him why his cleaner was beaten. The witness has also admitted that the appellant Krishna Tiwari came empty handed and that incident took place because they scolded Manoj Kumar and deceased removed him from the middle of the door. He has also stated that after coming down, Krishna Tiwari caught hold of the collar of Paramhans and asked him why his cleaner was beaten. So, it is apparent that some quarrel took place between the deceased and Krishna Tiwari. At that moment, it is alleged that Krishna Tiwari uttered the word 'assault' and thereafter Dadan Tiwari inflicted two knife blows. It is true that the first knife blow proved fatal; with regard to the second knife blow, admittedly, it is a simple injury which is skin deep. From the record, it is apparent that the prosecution has suppressed the evidence of other witnesses, particularly that of Manoj Kumar who was the cause of quarrel. However, taking the prosecution case as, it is, it is apparent that the role played by A1 is absolutely limited. Therefore, the trial Court has convicted him by resorting to sections 109 and III of IPC. Further, it is admitted that relationship between the brothers and the family members was cordial prior to the incident. The incident took place all of a sudden and without any premeditation. Manoj, cleaner of the appellant, was standing in the middle of the door and the ladies of the house were having obstruction in coming and going out from the house, therefore, he was scolded by deceased and removed from that place by use of force. It appears that he conveyed something which has not come on record because Manoj is not examined, to the appellants. Appellants came down and the quarrel took place between deceased and Krishna Tiwari (AI). In such a sudden quarrel and in the heat of passion, appellant No.2, son of Krishna Tiwari AI, inflicted a fatal blow to the deceased. Further, he has not acted in any cruel or unusual manner nor he has taken any undue advantage. Hence, at the most, appellant No.2 would be liable to be convicted for the offence punishable under section 304, Part I, IPC and the appellant No.1 for the offence under section 304 Part I read with section 109 and section III IPC. ....." 10. The prosecution has not even suggested any prior ill-will between the accused persons and the deceased. Hence, at the most, appellant No.2 would be liable to be convicted for the offence punishable under section 304, Part I, IPC and the appellant No.1 for the offence under section 304 Part I read with section 109 and section III IPC. ....." 10. The prosecution has not even suggested any prior ill-will between the accused persons and the deceased. The incident of assault on deceased Kosa appears to have taken place suddenly during the wordy quarrel between the accused persons and the deceased over a petty matter. We do not gather any positive material in the evidence of the abovenamed eye-witnesses to indicate with certainty as to what actually transpired between the deceased and the accused persons leading to his assault. In the above factual matrix of the case, We find it difficult to hold that appellant Jugal @ Jugal Kishore, while dealing lathi blows on the deceased, had intended to cause his death. Nevertheless, appellant Jugal @ Jugal Kishore cannot escape from the liability of his above act altogather. In our considered view, the above proved act of the appellant would certainly amount to the offence of 'culpable homicide not amounting to murder' and in the facts of the present case, would be punishable under section 304(1), IPC. 11. As for the sentence, in the facts and circumstances of the present case, rigorous imprisonment for 10 years, in our considered view, would be the sufficient punishment for the offence found proved against appellant Jugal @ Jugal Kishore under section 304(1), IPC and would meet the ends of justice. 12. For the foregoing reasons, the appeal filed by appellant Jugal @ Jugal Kishore is allowed in part. His conviction under section 302, IPC and sentences of imprisonment for life arid fine of Rs. 500/- are hereby set aside. Instead appellant Jugal @ Jugal Kishore is convicted under section 304(1), IPC and is sentenced to rigorous imprisonment for 10 years. 13. The appeal of appellant Prabhoo @ Prabhoo Dayal fails and is hereby dismissed. His conviction under section 323, IPC and sentence of rigorous imprisonment for 1 year are hereby affirmed. 14. From the records. We gather that appellant Jugal @ Jugal Kishore has all along been in custody since his arrest on 14.6.1989, and as such has already undergone whole of the sentence of rigorous imprisonment for 10 years now awarded on his conviction under section 304(1), IPC. 14. From the records. We gather that appellant Jugal @ Jugal Kishore has all along been in custody since his arrest on 14.6.1989, and as such has already undergone whole of the sentence of rigorous imprisonment for 10 years now awarded on his conviction under section 304(1), IPC. We, therefore, direct that appellant Jugal @ Jugal Kishore be set at liberty forthwith, if not wanted in connection with any other case.