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2004 DIGILAW 749 (MP)

Viran v. State of Madhya Pradesh

2004-09-08

A.K.SHRIVASTAVA, DIPAK MISRA

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Judgment ( 1. ) IN this appeal preferred under Section 374 (2) of the Code of Criminal Procedure the accused/appellant (hereinafter referred to as *the accused) has called in question the soundness of the judgment passed by the learned Special Judge, Jabalpur in S. T. No. 675/2001 whereby he has recorded a conviction against the accused in respect of offences punishable under Sections 302 and 323 of the Indian Penal Code (in short the IPC) and sentenced him to undergo the rigorous imprisonment for life and pay a fine of Rs. 1,000/-, in default, to suffer further imprisonment of ten days on the first count and fine of Rs. l. 000/-, in default, to suffer imprisonment often days on the second score. ( 2. ) THE prosecution case, in brief, is that on 17-5-2001 in the mid afternoon the father-in-law of the deceased was in his paddy field and the buffalos of the accused entered inside the field and caused damages. Ramvati (P. W. 4), tried to drive away the said animals and at that stage the accused abused and slapped her. Hearing the cry of Ramvati her husband, Dorilal, came there. The accused gave a blow of lathi on his head. At that stage the son of the accused, Dharmendra, also assaulted the deceased Dorilal on the back region with lathi. They also abused the deceased. The said incident was witnessed by Godhan (P. W. 3), and others. The Bhojran (P. W. 1) informed at the Police Station, Belkheda which is situated about 12-13 Kms. away at about 3. 15 p. m. On the basis of First Information Report lodged the investigating agency registered a crime. It is the further case of the prosecution that Dorilal and Ramvati were sent for medical examination to the hospital and during the treatment Dorilal breathed his last. The investigating agency got the autopsy done of the deceased; prepared spot map, seized lathi at the instance of the accused; got certificate of the deceased from the Sarpanch vide Exhibit P-12 as it was alleged that he belonged to Scheduled Caste; and had sent the articles as per Exhibit P-13 to the Forensic Laboratory and examined number of witnesses under Section 161 of the Cr. PC, After conducting the inquiry the investigating agency placed the charge-sheet before the Competent Court, namely, Special Court constituted for trying the offences punishable under SC and ST (Prevention of Atrocities) Act, 1989. ( 3. ) THE accused denied and disputed the indictment and pleaded innocence. He also took a plea of alibi. ( 4. ) THE prosecution in furtherance of its case examined number of witnesses and got certain documents exhibited. ( 5. ) P. W. 1 is Bhojraj, the father-in-law of the deceased; P. W. 2 is Netram who is witness of Panchnama of the dead body; P. W. 3 is Godhan a relation of the deceased; P. W. 4 is Ramvati Bai, wife of the deceased; P. W. 5 is Baijanti Bai is the daughter of the deceased; Chetram Dohaiya (P. W. 6) is a witness to discovery of lathi; Vinod Kumar (P. W. 7) is a witness to seizure who has turned hostile; Rewaram (P. W. 8) is a formal witness; P. W. 9 is R. P. Pathak, P. W. 10 is Dr. H. M. Wadhwani who has initially treated the deceased Denial, P. W. 11 is Dr. M. S. Kukrel who has conducted post-mortem of the dead body and P. W. 12 is Ashish Meshram, the investigating officer. ( 6. ) THE defence chose not to adduce any evidence. ( 7. ) THE learned Trial Judge on the basis of the ocular and documentary evidence, recorded conviction and imposed punishment as has been indicated hereinbefore. ( 8. ) WE have heard Mr. Surendra Verma, learned Counsel for the accused/appellant and Mr. S. K. Rai, learned Government Advocate for the respondent-State and Mr. Jagat Sher Singh for Ramvati Bai, the wife of the deceased. ( 9. ) IT is submitted by Mr. Surendra Verma, learned Counsel for the appellant, that the learned Trial Judge has failed to appreciate about the genesis of occurrence which has led to sudden provocation and there was no intention on the part of the accused appellant in the remotest sense to cause death of deceased Dorilal. It is urged by him that it has come in the evidence of the prosecution that there has been no enmity between the parties. It is urged by him that it has come in the evidence of the prosecution that there has been no enmity between the parties. It is contended by him that the accused has inflicted a singular blow of lathi on the deceased and lathi not being a deadly weapon the culpability of the accused for the purpose of offence of murder is not attracted. The learned Counsel has further submitted that assuming as a matter of fact that the accused has given a blow the offence would not come under Section 302, IPC but it would come under Section 304-II of the IPC. It is further submitted by Mr. Verma that all the witnesses are closely related to the deceased and, therefore, their evidence should not be given total credence and hence, should be viewed and scanned with immense circumspection. ( 10. ) MR, S. K. Rai, learned Government Advocate for the State has submitted that the prosecution has proven the assault by the accused to the hilt as the eye-witnesses have totally stood embedded and nothing has been really elicited to discredit the said witnesses. He has also criticized the proponement that the witness being closely related their version should not be given credence on the ground that there is no justification or reason on the part of the relatives to implicate the accused and allow the guilty to go scot-free. ( 11. ) TO appreciate the rivalised submissions raised at the Bar we have carefully perused the judgment of the learned Trial Judge and gone through the evidence on record. At the outset it is appropriate to mention that the son of the accused was being proceeded before the Juvenile Court as he was the juvenile at that stage. Hence, we refrain from commenting on his act. It is noticeable that the accused Viron had faced charges under Section 3 (2) (v) of the SC and ST (Prevention of Atrocities) Act, 1989 alongwith Sections 323 and 302, IPC and the learned Special Judge has acquitted the accused of the offence under the SC and ST (Prevention of Atrocities) Act. The question that remains is whether the assault by the accused/appellant has been proved. It is not disputed before us that the death of the deceased was due to the injuries caused. The question that remains is whether the assault by the accused/appellant has been proved. It is not disputed before us that the death of the deceased was due to the injuries caused. On a perusal of the evidence of Bhojraj, Ramvati Bai and Godhan it is manifest that accused slapped Ramvati and gave lathi blow on the head region of the deceased. It is perceptible that the son of the accused Vohap has also assaulted Dorilal on the head and waist region of the deceased. Mr. Verma, learned Counsel for the appellant initially endeavoured to criticize the evidence but later on fairly agreed that the accused/appellant had inflicted a singular blow. This is also perceivable from the ocular evidence brought on record which gets corroboration from the medical evidence. The eye-witnesses P. Ws. 1,3,4 and 5 have stood firm and unmoved in their version. Nothing has been elicited in the cross-examination to discredit their testimony. They have unequivocally and categorically stated about the genesis of occurrence, development and the eventual assault by the accused. It is also come in the evidence of P. W. 4 that there has been no previous enmity. True it is, in every case singular blow would not mean that the accused is not guilty of the offence punishable under Section 302, IPC. Mr. Verma has submitted that this is one such case where a singular blow given is significance as the accused and his son did not have any common intention to murder the accused. It is urged by him that the occurrence took place all of a sudden when there was altercation between the accused and Ramvati Bai. It is urged by him that had (he accused wanted to put an end to the life of the deceased he would have given further blows. Learned Counsel for the appellant has submitted that the accused had no intention of causing death or causing such bodily injury which is likely to cause death. In essence, the submission of Mr. Verma is that the present case is a one where the accused appellant should be convicted under Section 304-II inasmuch as at the worst it can be said that the act has been done with the knowledge that it would likely to cause death. Learned Counsel has laid emphasis on the factum that there was no intention to cause death. Verma is that the present case is a one where the accused appellant should be convicted under Section 304-II inasmuch as at the worst it can be said that the act has been done with the knowledge that it would likely to cause death. Learned Counsel has laid emphasis on the factum that there was no intention to cause death. On a scrutiny of the evidence it appears that there was heated altercation and the accused gave a blow on the head with lathi. In the absence of enmity and in view of the fact that some animals had entered to the paddy field of the deceased and the accused gave slap to Ramvati Bai led to this incident. It is perceivable from the evidence that the accused had no intention of causing murder of the deceased nor there was any ill feeling or enmity between the deceased and the accused. The quarrel ensued without any kind of premeditation and a singular blow was given by way of lathi. We are conscious that it can not be said as general proposition of law that when a singular blow is inflicted by the assailant it would fall short of an offence punishable under Section 302 of the Indian Penal Code. It will depend upon the facts of each case. In each situation, the intention of the assailant, the weapon used and amount of force applied and certain other factors are taken note of. As we have discussed above there was no premeditation and at the base of occurrence there was triviality and everything happened all of a sudden we are disposed to think that the death was a homicidal and it would not amount to murder. However, we affirm the conviction under Section 323, IPC as there is nothing to discredit the testimony that accused has assaulted Ramvati Bai. In view of the aforesaid we arc of the considered view that the present case is one where the conviction under Section 302 of the IPC should be converted to one under Section 304-II, IPC and accordingly we so hold. ( 12. ) PRESENTLY, we shall proceed to state that what should be proper sentence in a case of this nature. The appellant as well as the deceased belong to uneducated strata of the society. There is no criminal antecedent of the accused. ( 12. ) PRESENTLY, we shall proceed to state that what should be proper sentence in a case of this nature. The appellant as well as the deceased belong to uneducated strata of the society. There is no criminal antecedent of the accused. As has been stated earlier, there has been no previous animosity. The accused has already undergone the custodial sentence of one year. In view of the aforesaid we arc of the considered opinion that the substantive sentence should be confined to the period already undergone in respect of the offence punishable under Section 304-II, IPC with a further stipulation that the accused appellant shall pay a compensation of Rs. 40,000/- (Rupees Forty thousand only) to Ramvati Bai, the wife of the deceased Dorilal. The said amount shall be deposited before the learned Trial Judge within a period of two months from today. The learned Trial Judge on proper identification shall pay the amount to Ramvati Bai, If the accused/appellant fails to deposit the aforesaid amount he shall suffer further rigorous imprisonment of two years. Out of the fine amount imposed under Section 323, IPC Rs. 750/shall also be paid to Ramvati Bai. ( 13. ) ACCORDINGLY, the criminal appeal is allowed to the extent indicated above.