Research › Search › Judgment

Madhya Pradesh High Court · body

2006 DIGILAW 963 (MP)

Namdeo v. State of Madhya Pradesh

2006-08-07

U.C.MAHESHWARI

body2006
Judgment ( 1. ) APPELLANT has preferred this appeal against the judgment dated 25-9-1990 passed by the Sessions Judge, Chhindwara in Sessions Trial No. 125/89 convicting him under Section 304 Part 2 of IPC with a sentence to undergo for five years Rigorous Imprisonment. ( 2. ) AS per case of the prosecution, on dated 31-7-1989 at about 11. 30 in the morning when Heeradas and Kashiram were looking after the work as mate in Sangam Nursery situated in the territorial jurisdiction of Police Station, Lodhikhera Tehsil Sausar. As per direction of the aforesaid mate various labourers of different villages like Kabarpipla, Kundam etc. were working in such nursery. The deceased Yuvraj resident of Village Kabarpipla was also working there alongwith his brother Dhanraj and some other persons of his village. The aforesaid Kashiram and Heeradas were allotting the work with some discrimination in between the different labourers of different villages as alleged some more work was being allotted to the labourers resident of Kabarpipla while the less work was allotted to labourers of Village Kundam. On account of it some altercation took place in between the said deceased Yuvraj and mate Kashiram. At the same time, appellant Namdeo resident of Village Kundam who was also working near the place of the incident came there and picked up a (FAVADA) Spade as it was laid there and gave the blow on the head of Yuvraj. He sustained injury from its sharp side. Thereafter the appellant ran away from the spot. Yuvraj was taken to Police Station, Lodhikhera. On registration of the offence he was sent to the Hospital Sausar. On medical examination and preliminary treatment he was sent to the District Hospital, Chhindwara for further treatment where during treatment he succumbed to the injury on dated 3-8-1989. So, initially the offence was registered under Section 307 of IPC. During investigation on his death Section 302 of IPC was invoked. After holding the investigation the appellant was charge-sheeted under Section 302 of the IPC. The case was committed to the Sessions Court where charge under Section 302 of IPC was framed against the appellant. On denying the same the trial was held. In order to prove the case, the prosecution has examined as well as 15 witnesses while one witness Kashiram was examined by the appellant in his defence. The case was committed to the Sessions Court where charge under Section 302 of IPC was framed against the appellant. On denying the same the trial was held. In order to prove the case, the prosecution has examined as well as 15 witnesses while one witness Kashiram was examined by the appellant in his defence. At the stage of appreciation of the evidence, the appellant was acquitted from the offence under Section 302 of IPC but held guilty for the offence under Section 304, Part II of IPC and sentenced as said above hence this appeal. ( 3. ) THE learned Counsel for the appellant has submitted that the appellant was falsely implicated in the case as he was not working at the place of the incident he further said that in his village one other Namdeo son of Mahadev was the resident who was working in such Nursery on the date of the incident and has been absconded after the incident but on account of wrong pretext the appellant was implicated in the case. In support of his contention he also referred the document Ex. D-4 certified copy of the Electoral roll of the year 1988 showing the name of Namdeo son of Mahadev a resident of Village Kundam. The appellant is altogether different person. ( 4. ) BESIDES the aforesaid he said that there was no motive with the appellant to cause any injury to the deceased. The appellant was neither the allotment authority of the work nor related with the mate in any manner. If any altercation was happened in between mate and deceased then it was not the matter for the appellant for intervention. It was also submitted that the appellant was involved in the case saying that he was working as labourer in such nursery and incident took place on account of discrimination in allotment of the work then prosecution was duty bound to prove that appellant was working at such place as labourer the same could have been proved by producing the muster roll of the nursery in which the names of all the labourers including appellant and deceased might have been written, in the absence of such muster roll no inference could have been drawn against the appellant that he was working as labourer in the nursery. As per his further submission the presence of the alleged prosecution witnesses on the place of occurrence have also not been proved by producing the aforesaid muster roll so this possibility cannot be ruled out that the appellant was not working in such nursery on that day. In addition, it was also argued that the name of the present appellant was not mentioned in the FIR while the appellant, deceased and other witnesses were not known to each other prior to the date of the incident. In support of his contention he referred some depositions of the prosecution witnesses. According to him, the evidence was not properly appreciated in holding guilt to the appellant while it was a case of acquittal and prayed for the same by allowing his appeal. ( 5. ) WHILE, other hand, the learned Counsel for the State while supporting the judgment of the Trial Court has submitted that the appellant was rightly convicted by the Trial Court on proper appreciation of the evidence and as per his further submission the impugned judgment does not require any interference at this stage and prayed for dismissal of this appeal. ( 6. ) HAVING heard the learned Counsels I have gone through the record of the Trial Court as per First Information Report, Ex. P-1, lodged by Dhanraj brother of the deceased just after one hour of the incident, the entire description was mentioned in it. Even the name of the appellant and the manner in which he caused injury to the deceased Yuvraj was specifically mentioned in it. Besides this, the names of the eye-witnesses namely Rama Lodhi, Chokharam Lodhi and Shanti Bai and presence of other persons are specifically mentioned. The appellant was taken in custody on 2-8-1989 within two days from the date of incident. Hence the submission put forth on behalf of the appellant that the offence was committed by some other Namdeo of his Village Kundam does not appear to be reliable. My aforesaid view is based on the deposition of the prosecution witnesses who are alleged to be the eye-witnesses of the incident. Dhanraj (P. W. 1) brother of the deceased was working at the same place in the said nursery on some visible distance from the deceased. He also saw the altercation in between the mate and deceased. My aforesaid view is based on the deposition of the prosecution witnesses who are alleged to be the eye-witnesses of the incident. Dhanraj (P. W. 1) brother of the deceased was working at the same place in the said nursery on some visible distance from the deceased. He also saw the altercation in between the mate and deceased. He specifically says about act of the appellant causing injury to Yuvraj on his head by means of spade and such version has not been destroyed even in his cross-examination. He also deposed the manner and circumstance in which the deceased was taken to the Police Station and to hospital. Although there is some discrepancies in between his case diary statement and the Court deposition but the same are not material to draw any inference against the prosecution. The other witness Shanti Bai (P. W. 2) stated in her deposition that on account of discrimination in allotment of the work some altercation had taken place in between the mate Kashiram, Heeradas and the labourer the deceased Yuvraj at the same time appellant Namdeo resident of Kundam came there and picking up the spade and given its blow on the head of the deceased. Although in Para 6 of her deposition she stated that she could not identify such Namdeo who gave such blow. But she stated the entire incident. According to her, the other eye-witnesses Dhanraj, Rama and Chaitram were also present alongwith other witnesses she could not identify the accused then on appreciation of the deposition of the other eye-witnesses her statement could be considered for corroboration to the case of the prosecution. ( 7. ) RAMA (P. W. 3) has categorically supported to prosecution as said and stated by Dhanraj (P. W. 1 ). He deposed that on aforesaid alleged altercation in between mate and deceased Yuvraj the present appellant came there and after picking up the spade gave a blow on the head of Yuvraj. In Para 12 of his deposition he categorically said that he known to appellant while working in the said nursery. This story is further supported by Chaitram (P. W. 5) who was also working nearby in such nursery. Even on examining the cross-examination of the aforesaid witnesses I have not found any adverse circumstance on which they could be discarded or disbelieved. This story is further supported by Chaitram (P. W. 5) who was also working nearby in such nursery. Even on examining the cross-examination of the aforesaid witnesses I have not found any adverse circumstance on which they could be discarded or disbelieved. Hence in view of the aforesaid it is held that the Trial Court has not committed any error in holding guilt to the appellant for causing injury to deceased. ( 8. ) AS per deposition of Dr. Sukhdev Sedo (P. W. 9) who examined the Yuvraj he was brought to the Hospital Sausar. He found only one incised injury on his head measuring 15 cm x 1 cm x bone deep the bone of such part of the head was fractured and the bleeding was also present. As per his deposition and MLC report Ex. P-7 injured was not in a position to speak he was trying to say by some indication but the same could not understand by the Doctor. Although this Doctor has not given any opinion regarding nature of the injury in his report or deposition. But, on referring the injured to District Hospital, Chhindwara his X-ray was taken and according to its report Exs. P-16/a and P-16/b the fracture of left parietal bone was found as deposed by Dr. S. K. Dubey (P. W. 15 ). During treatment he succumbed to injury then the autopsy was carried out by Dr. Raghvendra Sthapak (P. W. 7 ). As per his deposition and post mortem report Ex. P-9 he has opined that the said head injury and its consequences were the cause of death. He also found the fracture in left franto region, hence it is apparent that Yuvraj had died because of fracture of left franto parietal region. ( 9. ) IN the foregoing paras it has been held that such injury was caused by the appellant by means of spade and said Doctor have also found such corresponding injuries on preparation of MLC report and the report of post-mortem. There cannot be a debate that fracture of franto parietal bone is sufficient to cause death of a person in ordinary course of nature. In the present case, it appears that there was no intention to cause death of Yuvraj while causing injury but due to said injury during treatment Yuvraj had died. There cannot be a debate that fracture of franto parietal bone is sufficient to cause death of a person in ordinary course of nature. In the present case, it appears that there was no intention to cause death of Yuvraj while causing injury but due to said injury during treatment Yuvraj had died. So as per provision of Section 299 of the IPC, it is a case of out right culpable homicide but in the circumstances the injury was not caused with intention to cause death but knowledge of the consequences of the act was remained with the appellant. Therefore, the appellant was held guilty for the offence of culpable homicide not amounting to murder and also on account of attributing the knowledge he was held guilty under Part 2 of Section 304 of IPC. ( 10. ) SO far motive is concerned, it is apparent on the record that Kashiram and Heeradas were allotting more work to the labourers belonging to village of deceased Yuvraj while the labourers of Village Kundam including the appellant were being allotted some less work and this discrimination was the cause of altercation in between mate and the deceased. Meanwhile, appellant intervened and caused alleged injury to the deceased in order to protect mate as appellant and his villagers were being benefited by mate so motive is apparent. ( 11. ) IN view of the aforesaid circumstances, I have not found any perversity or illegality in the findings of the Trial Court hence it is held that appellant was rightly convicted by the Trial Court on proper appreciation of the evidence resultantly the judgment of the Trial Court is hereby affirmed and in pursuance of it, this appeal deserves to be and is hereby dismissed. ( 12. ) HOWEVER, in the facts and circumstances of the case as the incident took place long back on dated 21-7-1989 and thereafter appellant has already suffered the mental agony regarding pendency of the case for years together up to the stage of this appeal. ( 12. ) HOWEVER, in the facts and circumstances of the case as the incident took place long back on dated 21-7-1989 and thereafter appellant has already suffered the mental agony regarding pendency of the case for years together up to the stage of this appeal. Besides this, it is apparent that the incident took place only on account of heat of passion and he caused only one injury to the deceased and also keeping in view the age factor of the appellant on the date of the incident as he was only 24 years of the age I reduce his jail sentence from 5 years RI to 3 years RI with fine of Rs. 5,000/ -. The same is to be deposited within 60 days from today failing which appellant has to suffer further 6 months RI hence the punishment part of the impugned judgment is reduced and modified till the above mentioned extent while the appeal is dismissed on merits by affirming the judgment of the Trial Court as said above. On depositing such fine amount the same be given to the legal representative of deceased Yuvraj by calling them through summons. ( 13. ) IN view of the aforesaid the appellant is directed to surrender himself in the Trial Court within 30 days from today for facing the remaining jail sentence failing which the Trial Court would be at liberty to pass appropriate order for execution of the remaining jail sentence against the appellant. ( 14. ) ACCORDINGLY, this appeal is dismissed with modification in punishment as indicated above.