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Madhya Pradesh High Court · body

2007 DIGILAW 1280 (MP)

Mithilesh v. State of M. P.

2007-12-11

A.K.GOHIL, N.K.MODY

body2007
JUDGMENT Gohil, J. -- 1. In this appeal filed under section 374 CrPC the appellant has challenged the judgment of conviction under section 302 IPC, and sentence for life imprisonment with fine of Rs. 1 ,000/- passed on 6.1.1997 in Sessions Trial No.1 08/96, by Third Additional Sessions Judge, Bhind. 2. The prosecution story in short is as under: On 16.12.1995 at about 1:30 p.m. at village Akoda deceased Gambhir Singh was giving water in the field of Bachude Khan. Shivpratap Singh and Tilak Singh, two sons of Gambhir Singh were also sitting near the field. Appellant-Mithilesh, who is also nephew of the deceased, came from village side carrying spade in his hand, hurled abuses at Gambhir Singh and asked him to stop operating pump and at the same time gave two spade blows on his head. Deceased sustained injuries and died on spot. Sons of the deceased also came to save their father and thereafter accused went away from the spot with the spade. Shivpratap Singh lodged FIR, Ex. P-l, at P.S. Umari, where crime was registred, matter was investigated and charge sheet was filed. During trial, as many as 10 witnesses were examined. Dr. A.K. Saxena (PW 7) conducted autopsy of the dead body and according to him, the deceased received two lacerated wounds in the head and the deceased died because of excessive bleeding and shock. Trial Court after considering the evidence of the witnesses found the appellant guilty under section 302 IPC, convicted and sentenced him as aforesaid. Against which the appellant has preferred this appeal. 3. We have heard the learned counsel for the parties and perused the evidence on record. 4. At the outset, learned counsel for the appellant submitted that the incident took place all of sudden. The appellant, who is the nephew of the deceased, became furious seeing that the deceased was providing water to the field of Bachude Khan from his own water pump, lost his balance and gave two spade blows to the deceased. The deceased was his Uncle. It is further submitted that Shivpratap Singh (PW 1), who is the son of the deceased, has also submitted in his evidence that the incident took place under heat of sudden provocation, their relations were very cordial and they belong to the same family. The deceased was his Uncle. It is further submitted that Shivpratap Singh (PW 1), who is the son of the deceased, has also submitted in his evidence that the incident took place under heat of sudden provocation, their relations were very cordial and they belong to the same family. Same is the statement of Tilak Singh (PW 2), who is the another son of the deceased Ram Mohan Singh (PW 9), who is also the eye-witness, has not supported the prosecution and he was declared hostile. Therefore, it is submitted that the appellant has already suffered jail sentence of more than eight years and looking to the nature of incident and the weapon used in the commission of crime, it cannot be held that there was any premeditation or intention to cause death of the deceased or the blows were also given with intention to cause death of the deceased. Therefore, it was argued that the case will not fall under section 302 and at the most, it may be a case under section 304 Part II, IPC and submitted that the conviction be altered from section 302 to section 304 Part II, IPC and the appellant be released on undergone jail sentence. In reply, Shri Vivek Khedkar, learned Public Prosecutor, supported the judgment. 5. After hearing the parties we have also perused the evidence on record. It is true that Shivpratap Singh (PW 1) and Tilak Singh (PW 2), who are the sons of the deceased, have admitted that there was no enmity between the deceased and accused persons. The deceased was Uncle of the appellant-accused, they belong to the same family and same village and their relations were also cordial. Though there was no partition of land, but there was no enmity between them. The weapon used in the crime was the spade, which is generally being used in the agricultural operations by the agriculturists and is a common agricultural implement, therefore, it was submitted that the presence of spade is also not uncommon in the case and it was not brought on spot with a view to commit such offence. Thus, it cannot be held that the spade is a dangerous weapon. Thus, it cannot be held that the spade is a dangerous weapon. It was further submitted that Akhilesh and Umesh have denied the presence of both the eye witnesses Shivpratap Singh and Tilak Singh on spot at the time of incident and Ram Mohan Singh (PW 9) has also admitted that he has not seen the incident. It was also submitted that the aforesaid spade was recovered from the field of mustard, after 25 days of the incident and the prosecution has not proved either the identity of the spade or that the same belongs to the accused. 6. After considering the prosecution evidence, it is clear that there was no enmity between the parties and there is also no evidence on record about the pre-meditation. The incident took place suddenly and two spade blows were given out of some grave anger and provocation. Therefore, the contention of the learned counsel for the appellant appears to be reasonable. It is true that the deceased received two lacerated wounds on the head. Though the injury was found to be severe, but there is no opinion of the doctor that the aforesaid injury was sufficient to cause death in the ordinary course of nature. 7. Thus, after considering the evidence available on record, we are of the view that looking to the nature of the offence and the factual background in which the incident took place, the case will not fall under section 302 IPC, but it will fall under section 304 Part II, IPC. Since the appellant has already suffered jail sentence of more than eight years, which also appears to be sufficient and looking to this fact that the deceased and appellant belong to the same family and there was no element of intention to cause death, this appeal is allowed. The conviction of the appellant is altered from section 302 to section 304 Part II, IPC and the appellant is released on undergone jail sentence. 8. Consequently, this appeal is allowed. The conviction of the appellant· is altered from section 302 to section 304 Part II, IPC and the jail sentence is reduced to the sentence already undergone by him. The appellant is on bail, his bail bonds shall stand discharged.