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2003 DIGILAW 1137 (MP)

Shubhkaran v. State of M. P.

2003-09-26

DIPAK MISRA, SHANTANU KEMKAR

body2003
JUDGMENT Kemkar, J. -- By this appeal, the appellant is assailing the judgment dated 14.10.1991 passed in Sessions Trial No. 44/88, by the First Additional Sessions Judge, Sidhi, whereby he has been convicted under section 302 of the Indian Penal Code and sentenced to rigorous imprisonment for life and fine of Rs. 1,000/-. The trial Court has, however, acquitted the co-accused persons, namely, Chotelal, Pannalal and Chitanand. According to the prosecution, on 19:1.1988, at about 1.30 p.m. one Bhagwat Prasad while going towards village Panikabandha alongwith Vijay Singh (PW 2), Gopal and Rama heard the sound of cutting of a tree from forest near village Titaria. Bhagwat Prasad was a forest Guard. When he went to the place from where the sound was coming, he saw appellant Shubhkaran and Chitanand cutting a tree by their axes. Bhagwat Prasad asked then not to cut the tree and insisted for handing over their axes to him. Both of them after initial protest handed over their axes to Bhagwat Prasad. Vijay Singh (PW 2) held the axe of Shubhkaran. Thereafter, all' of them left the place and as they reached village Titaria, Shubhkaran suddenly snatched the axe from Vijay Singh (PW 2). At that time Dadna, Chotelal and Pannalal also reached that place. Bhagwat Prasad demanded the axe from Shubhkaran and stated that he would seize the wood also. At that juncture Shubhkaran suddenly inflicted a blow from the blunt side of the axe on the forehead of Bhagwat Prasad as a result of which he fell down and became unconscious. He did on the way while being carried to the hospital. Vijay Kumar lodged the FIR (Ex. P-l) at Police Station Jiyavan. Dr. R.K. Shrivastav (PW 5) conducted the Post-mortem of the deceased Bhagwat Prasad. He in his report (Ex. P-6) gave opinion that Bhagwat Prasad died due to solitary forehead injury. After investigation the police filed the charge-sheet against the appellant and other acquitted co-accussed, persons, namely, Chotelal, Pannalal and Chitanand. The conviction of the appellant is based on the evidence of Vijay Singh (PW 2). Learned counsel for the appellant has argued that the trial Court ought to have disbelieved the evidence of solitary eye-witness. After investigation the police filed the charge-sheet against the appellant and other acquitted co-accussed, persons, namely, Chotelal, Pannalal and Chitanand. The conviction of the appellant is based on the evidence of Vijay Singh (PW 2). Learned counsel for the appellant has argued that the trial Court ought to have disbelieved the evidence of solitary eye-witness. In the alternative, he has argued that the appellant should not have been convicted under section 302 of the IPC as only an offence under section 304 Part II was made out against him even as per the allegations of the prosecution. We have carefully considered the evidence of Vijay Singh (PW 2). He, in his evidence has deposed that while he was proceeding towards village Bandha heard the sound of cutting of a tree. Bhagwat Prasad (deceased) and he went to the place and saw the appellant Shubhkaran and Chitanand cutting a tree by their axes. Bhagwat Prasad asked them not to cut the tree and insisted for handing over their axes to him. He held the axe given by the appellant. Thereafter, all of them when reached the village, Shubhkaran snatched the axe from him. Unable to accept this act, Bhagwat Prasad demanded the axe from Shubhkaran and further threatened that he would seize the wood also. At that point of time, the appellant inflicted an axe blow from the blunt side on the forehead of the Bhagwat Prasad. This evidence of Vijay Singh is corroborated by the FIR (Ex. P-l) lodged by him and also by the medical evidence. Quite apart from the above, there is nothing on record to disbelieve this independent eye-witness Vijay Singh (PW 2) who is not related to the deceased Bhagwat Prasad. Thus, the trial Court has rightly believed the evidence of eye-witness, Vijay Singh (PW 2) and arrived at the conclusion that the appellant alone was responsible for the death of Bhagwat Prasad. The appellant appears to be a tribal. He felt annoyed and harassed on being restrained by the deceased from cutting the tree and subsequent seizure of axe. It therefore, seems that he suddenly thought of beating Bhagwat Prasad, in pursuance of which he inflicted a solitary blow on Bhagwat Prasad from the blunt side of his axe, which unfortunately landed on his forehead. There is no allegation that appellant even attempted to repeat the assault. It therefore, seems that he suddenly thought of beating Bhagwat Prasad, in pursuance of which he inflicted a solitary blow on Bhagwat Prasad from the blunt side of his axe, which unfortunately landed on his forehead. There is no allegation that appellant even attempted to repeat the assault. There appears to be no premeditation in causing the injury to the Bhagwat Prasad which proved fatal. For the above reasons, we are of the considered view that the conviction of the appellant under section 302 of the IPC is neither apt nor justified. Having given our anxious consideration, it is evident that the appellant had only given a singular blow from the blunt side of the axe. The appellant who was having a sharp edged weapon had not caused injury by sharp edged side. In a sudden heat of anger he inflicted a solitary blow which ultimately proved to be fatal. Thus, it is discernible that the appellant had no intention to cause death of the deceased. Accordingly, we deem it fit to set aside the conviction of offence under section 302 of the IPC and instead of it are disposed to convict the appellant under section 304 Part II of the IPC. The appellant is reported to have already suffered more than 10 years of imprisonment. He is, therefore, sentenced to imprisonment for the period already undergone. He be released forthwith, if his detention is not required in connection with any other case. The appeal stands partly allowed.