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Madhya Pradesh High Court · body

2003 DIGILAW 1155 (MP)

Rameshwar v. State of M. P.

2003-10-14

A.K.TIWARI, S.L.KOCHAR

body2003
JUDGMENT Kochar, J. -- These two appeals have been filed by appellant Rameshwar and appellant State against the judgment dated 6.8.1999, passed by learned II Addl. Sessions Judge, Ujjain in Sessions Trial No.51/93, whereby convicted the appellant Rameshwar u/s 302 IPC and sentenced to R.I. for life, while acquitting other co-accused persons Shailendra and Dungarsingh from the charge u/s 302/34 IPC. The State has preferred appeal against acquittal of co-accused persons. The prosecution case in short is that on 29.3.1992, in the morning the deceased Shankarlal reached in the market from his village Panjed on tractor with his driver Jagdish (PW 7) and Bherusingh (PW 1), who came with him for repairing of his motor. The deceased Shankarlal and his companion, after doing purchasing in the market, when reached in front of Gonda Chowky they met on the way appellant Rameshwar and acquitted co-accused Shailendra and Dungarsingh. The appellant Rameshwar exhorted his companions to kill Shankarlal on which co-accused Shailendra and Dungarsingh caught hold of Jagdish (PW 7) and Bherusingh (PW 1) whereas appellant Rameshwar hit by the stone at the backside of head of deceased Shankarlal. The deceased fallen on the ground, thereafter accused persons run away from the spot. FIR (Ex. P-7) was lodged by Jagdish (PW 7). The deceased was got admitted in the hospital in the evening. Dr. Anil Sinha (PW 12) has examined the deceased. The doctor noted two lacerated wound on the head and two on the face. His post-mortem was performed by Dr. Raj Kumar Singh (PW 15). The postmortem report is Ex. P-19. After due investigation, the chargesheet was filed. The learned trial Court framed the charge against the appellant and acquitted co-accused persons u/s 302/34 in alternative 302 of the IPC. They abjured their guilt. Therefore, put on trial. The learned trial Court, after recording the prosecution evidence and hearing both the parties, acquitted the co-accused Shailendra @ Chotu and Dungarsingh whereas Rameshwar has been convicted u/s 302 IPC and sentenced to life. We have heard Shri Yogesh Purohit, learned counsel for appellant and Shri G. Desai, learned Dy. A.G. for respondent. In Criminal Appeal No. 1663/99 none has appeared for the respondents. Therefore, we have appointed learned counsel Shri Yogesh Purohit as amicus curiae on his behalf. We have heard Shri Yogesh Purohit, learned counsel for appellant and Shri G. Desai, learned Dy. A.G. for respondent. In Criminal Appeal No. 1663/99 none has appeared for the respondents. Therefore, we have appointed learned counsel Shri Yogesh Purohit as amicus curiae on his behalf. Learned counsel for appellant, on the strength of judgment reported in AIR 1994 SC 1398 (Chuttan and others v. State of M.P.) made a solitary submission before us that the case against the appellant Rameshwar would not fall within the purview of murder but at the most same would fall u/s 304-II of the IPC. He has not contested the finding recorded by the trial Court regarding homicidal death of deceased in the result of injury caused to him on the head by stone. This is also borne out from the statement of Dr. Anil Sinha (PW 12) who has examined the deceased and eye-witness Jagdish (PW 7). The learned trial Court has reached to the conclusion that prosecution was not able to establish motive for the alleged incident. The learned trial Court has also held in paragraph 25 of its judgment that there is no sufficient evidence available against the co-accused Shailendra and Dungarsingh; therefore, they were acquitted by giving benefit of doubt. In this view of the matter, now this Court is required to see whether appellant Rameshwar was having intention to commit murder. Prosecution case is mainly based on the solitary statement of eye-witness Jagdish (PW 7). According to this witness, appellant Rameshwar was accompanied by two unknown persons and when he reached alongwith the deceased Shailendra in front of Gonda Chowky, the deceased was assaulted by stone by the appellant Rameshwar. The blow was landed on the back side of his head. The deceased fallen on the ground. Thereafter the appellant Rameshwar also hit the deceased by stone. This witness has not mentioned approximate size and weight of the stone. As stated above, the prosecution has not adduced any evidence regarding motive. The statement of Jagdish (PW 7) is also silent on the question of motive and his evidence is clearly disclosing the fact that the incident had occurred all of a sudden in which Rameshwar has caused injury to deceased Shankarlal by a stone, a non-lethal weapon. As stated above, the prosecution has not adduced any evidence regarding motive. The statement of Jagdish (PW 7) is also silent on the question of motive and his evidence is clearly disclosing the fact that the incident had occurred all of a sudden in which Rameshwar has caused injury to deceased Shankarlal by a stone, a non-lethal weapon. Therefore, looking to these facts, we are of the view that the appellant Rameshwar was not having any intention to commit murder of the deceased but he was having knowledge that by causing injury on head by non-lethal weapon like stone the deceased may die. There is no evidence available in the record regarding size and weight of the stone. In appeal filed by the State against appellant Shailendra and Dungarsingh, we find absolutely no substance. The solitary eye-witness Jagdish (PW 7) has not alleged anything against him. Therefore, the same is liable to be dismissed. In view of the above mentioned fact and circumstances of the case, the conviction of the appellant Rameshwar u/s 302 of the IPC is set aside instead there-of he is convicted u/s 304-II of the IPC. With regard to the sentence, having regard to the fact and feature of the case, the sentence of five years and fine of Rs. 5,000/-, in our opinion, meet the ends of justice and in default of payment of fine, he shall further undergo RI for two years. On realisation of fine amount, Rs. 5000/- be paid as compensation to the legal heirs of the deceased. Accordingly, we allow the appeal of appellant Rameshwar in part and to the extent indicated above and the appeal filed by the State against respondents Shailendra @ Chotu and Dungarsingh is hereby dismissed. Original judgment shall be retained in the record of Criminal Appeal No.1187/99 and a copy thereof be placed in the record of Criminal Appeal No. 1663/99.