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Madhya Pradesh High Court · body

2007 DIGILAW 1282 (MP)

Prem Singh v. State of M. P.

2007-12-12

AJIT SINGH, RAKESH SAKSENA

body2007
JUDGMENT Saksena, J. -- 1. Since both the appeals arise out of the common judgment, they are being disposed of by this common order. 2. Appellants Prem Singh and Dhyan Singh of Criminal Appeal No. 2315/98 have been convicted under section 323 of Indian Penal Code and sentenced to rigorous imprisonment for one year whereas appellant Jawan Singh of Criminal Appeal No. 2316/98 has been convicted under section 302 of Indian Penal Code and sentenced to imprisonment for life. 3. Aforesaid appellants have filed their respective appeals against the judgment dated 18.9.1998, passed by Additional Sessions Judge, Burhanpur, in Sessions Trial No. 102/92. 4. In short, the prosecution story is that complainant Surpal along with his father-in-law Banshi had gone to the market of village Doifodia. In the market, Nahala (PW 5) also met them. After marketing, at about 7 O'clock, all of them were going to village Magardoh. As soon as they reached near that village, Banshi sat there for urination. In front of that place, there happened to be the house of accused Jawan Singh. Jawan Singh raised call as to who was there, whereupon Banshi and Nahala replied that they were guests. Jawan Singh started hurling fithy abuses, whereupon Banshi and Nahala protested saying as to why he was abusing them. Suddenly Jawan Singh came there with a lathi and assaulted Banshi on his chest. Banshi fell down. Thereafter, Prem Singh and Dhyan Singh also came there and inflicted lathi blow on his neck and waist. Surpal and Nahala picked up Banshi and took him to the house of Surpal. Other accused persons then pelted stones at them and also on the house. Surpal went to village Dhaba and informed Phundia (PW 1) and along with him went to lodge the report at Police Station Khaknar. Shesh Narayan Tiwari, Sub Inspector, recorded first information report (Ex. P-5) under sections 307, 336, 147 and 452 of the Indian Penal Code. By the time police reached village Magardoh, Banshi had already died. After preparing inquest, the dead body of Banshi was sent for postmortem examination. Dr. Arun Kumar (PW 7), Assistant Surgeon, Community Health Centre, Khaknar, performed the postmortem examination and vide his report Ex. P-8 found following injuries on the body of deceased: (1) Abrasion on left lower side of chest on lateral aspect. Size 1/4" x 1/4", red in colour. After preparing inquest, the dead body of Banshi was sent for postmortem examination. Dr. Arun Kumar (PW 7), Assistant Surgeon, Community Health Centre, Khaknar, performed the postmortem examination and vide his report Ex. P-8 found following injuries on the body of deceased: (1) Abrasion on left lower side of chest on lateral aspect. Size 1/4" x 1/4", red in colour. (2) Abrasion in front of chest 2" below and sternal angle on right side, 1/4" x 1/4", red in colour. (3) Abrasion with contusion on top of left shoulder. Size 1/4" x 1/4", greenish blue in colour. On internal examination 5th rib of right side and 6th and 7th ribs of left side were found fractured. Lungs were found ruptured at the site of fractures. Lungs were collapsed. The injuries were ante-mortem in nature and were caused by hard and blunt object. In his opinion, the cause of death was respiratory failure due to shock resulting from laceration of lung on left side and haematoma leading to asphyxia. It was homicidal. 5. After investigation, the charge sheet was filed and the case was committed for trial. 6. Trial Court framed the charge under sections 147, 302 and 149 of Indian Penal Code. All the accused abjured their guilt and pleaded false implication. 7. During trial, prosecution examined eight witnesses to substantiate the accusation. Mainly the prosecution rested on the evidence of Phundia (PW 1), Surpal (PW 4), Nahala (PW 5), Arun Kumar (PW 7) and Shesnarayan Tiwari, Sub Inspector (PW 8). 8. After appreciating the evidence, learned trial Judge held Jawan Singh guilty under section 302 of Indian Penal Code and Prem Singh and Dhyan Singh under section 323 of Indian Penal Code. Except Jawan Singh, all the accused persons were acquitted of the charge under section 302/149 of Indian Penal Code. 9. Learned counsel for the appellants, Ms. Saba Naqvi, submits that the trial Court has committed error in convicting the appellants. The evidence of all the eye witnesses viz. Surpal and Nahala is not reliable. She submits that the appellant Jawan Singh had no intention to cause death of deceased. The incident had erupted suddenly. The assault on deceased was not premeditated. Since there had been a wordy quarrel between the deceased and the accused, appellant Jawan Singh cannot be held guilty under section 302 of Indian Penal Code. Surpal and Nahala is not reliable. She submits that the appellant Jawan Singh had no intention to cause death of deceased. The incident had erupted suddenly. The assault on deceased was not premeditated. Since there had been a wordy quarrel between the deceased and the accused, appellant Jawan Singh cannot be held guilty under section 302 of Indian Penal Code. At the most, it could be a case under section 304-II of Indian Penal Code. She submits that the appellants Prem Singh and Dhyan Singh had remained in custody for a period of one year and fifteen days during course of the trial and appellant Jawan Singh had remained in custody till 15.8.2002. Thereafter he was released on probation. 10. On the other hand, learned counsel for the State, Shri R.S. Patel, Additional Advocate General, submits that the evidence adduced by the prosecution is reliable. From the evidence of Surpal Singh (PW 4) and Nahala (PW 5), it has been established beyond doubt that appellant Jawan Singh had assaulted the deceased by lathi causing dangerous injuries, as a result of which he died. He submits that in the circumstances of the case, the conviction of appellant Jawan Singh, under section 302 of Indian Penal Code, is fully justified. 11. The conviction of the appellants is mainly based upon the evidence of eye witnesses Surpal (PW 4) and Nahala (PW 5). Surpal (PW 4) testified that while he, Nahala and deceased were going to their village, deceased sat for urination in front of the house of Jawan Singh who hurled filthy abuses, whereupon deceased and Nahala objected. Suddenly Jawan Singh inflicted a lathi blow on the chest of deceased, as a result of which he fell down. Thereafter, Prem Singh reached there and inflicted lathi blow on the neck of deceased. Thereafter, Dhyan Singh came and inflicted a lathi blow on his waist. When he and Nahala were carrying Banshi (deceased) to his house, other accused persons pelted stones at them and also at his house. We went to village Jamunia and along with Phundia went to Police Station Khaknar and lodged the report. 12. The incident had occurred around 7 O'clock in the evening. First information (Ex. P-5) was lodged by Surpal (PW 4) at 1:30 O'clock in the night. The distance of police station from village Magardoh is around 17 Kms. We went to village Jamunia and along with Phundia went to Police Station Khaknar and lodged the report. 12. The incident had occurred around 7 O'clock in the evening. First information (Ex. P-5) was lodged by Surpal (PW 4) at 1:30 O'clock in the night. The distance of police station from village Magardoh is around 17 Kms. Thus, it appears that this witness lodged the first information' without any delay. The testimony of this witness finds corroboration from the version given by him in the first information report. On perusal of the evidence of Nahala (PW 5), it is seen that he has also repeated the same story, as given by witness Surpal. The evidence of witness Surpal is fully corroborated from the evidence of this witness. 13. Dr. Arun Kumar (PVV 7), who performed the postmortem examination of the dead body of Banshi, found three abrasions on the chest and shoulder of the deceased. 5th Rib of the right side and 6th and 7th ribs of the left side were found fractured. On the site of fractures, the lungs of the deceased were found lacerated. The death has been caused due to asphyxia. Though, according to this witness, the death was homicidal, but he did not say that the injuries found on the body of the deceased were sufficient in the ordinary course of nature to cause death of the deceased. 14. The evidence of Surpal (PW 4) finds support from the medical evidence as well as from the evidence of Phundia (PW 1). Phundia has categorically deposed that Surpal had come to his house at about 11 O'clock in the night and informed him about the. incident and then both of them went to lodge the report at police station. Along with the police they had gone to village Magardoh, where they found Banshi lying dead. The evidence of all the aforesaid witnesses appear natural and trustworthy. 15. From appraisal of the aforesaid evidence, it has been amply established that the appellants had assaulted the deceased by means of lathis. It has also been established that as a result of injury caused by accused Jawan Singh, ribs of deceased were fractured and his lungs were ruptured by the broken ribs, which caused asphyxia, resulting into his death. 16. From appraisal of the aforesaid evidence, it has been amply established that the appellants had assaulted the deceased by means of lathis. It has also been established that as a result of injury caused by accused Jawan Singh, ribs of deceased were fractured and his lungs were ruptured by the broken ribs, which caused asphyxia, resulting into his death. 16. While dealing with the question as to what offence has been committed, it is relevant to note that appellant Jawan Singh, who opened the assault on deceased, did not know as to who was urinating in front of his house. He suddenly started abusing the deceased. When deceased and Nahala objected, suddenly, on the spur of the moment, he inflicted lathi blow on the chest of the deceased. There appears no premeditation, motive or any intention on his part to cause the death of deceased. The incident appears to be the result of the annoyance caused in the mind of accused Jawan Singh by the act of deceased in urinating in front of his house. It has not been said by any witness that appellant Jawan Singh repeated the blow. In such circumstances we are of the view that the prosecution has failed to establish that Jawan Singh assaulted the deceased with the intention of causing his death or with the intention of causing such bodily injuries, which he knew to be likely to cause the death. Thus, Exception 4 of section 300 of the Indian Penal Code is clearly attracted. However, since he inflicted lathi blow on the chest of the deceased, it can reasonably be inferred that he knew that it was likely to cause his death or such bodily injury that was likely to cause his death. 17. In Ravi Kumar v. State of Punjab, 2005 CriLJ 1742, the apex Court held that for applicability of Exception 4 of section 300 of Indian Penal Code, it has to be established that the act was committed without premeditation, in a sudden fight in the heat of passing upon a sudden quarrel without the offender having taken undue advantage and not having acted in a cruel or unusual manner. Heat of passing requires that there must be no time for the passing to cool down. 18. Heat of passing requires that there must be no time for the passing to cool down. 18. In view of the above discussion, we are of the considered opinion that the conviction of the appellant Jawan Singh under section 302 of Indian Penal Code is not justified. In the factual background of the case, it will be appropriate to convict the appellant Jawan Singh under section 304- II of Indian Penal Code instead of section 302 of Indian Penal Code, as has been done by the trial Court. Accordingly, his conviction is altered to section 304- II of Indian Penal Code. His sentence of life imprisonment is set aside, instead he is sentenced to the period of rigorous imprisonment of five years, already undergone by him. He shall be released forthwith, if not required in any other case. His appeal (Criminal Appeal No. 2316/ 98) is allowed to the aforesaid extent. 19. So far as the conviction of appellants Prem Singh and Dhyan Singh under section 323 IPC is concerned, it has been established from the above evidence that they had caused simple injuries to deceased after the fatal injury was caused by appellant Jawan Singh. The impugned order of conviction and sentence, in this regard, passed by the trial Court is affirmed. Their appeal (Criminal Appeal No. 2315/98) is dismissed. They have already served out their jail sentences. 20. Copy of this order be kept in the file of Criminal Appeal No. 2316/98.