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2007 DIGILAW 470 (MP)

Siroman v. State of M. P.

2007-04-20

SHEELA KHANNA, SUBHASH SAMVATSAR

body2007
JUDGMENT Samvatsar, J. -- 1. This appeal is filed by the accused persons challenging judgment dated 20.9.2002 passed by the Additional Sessions Judge, Seondha Camp District Datia in Sessions Case No. 12712000, whereby the appellant No. 1 Siroman is convicted under section 302 of IPC and appellants Harisingh and Ramsewak are convicted under section 302/34 of IPC and they are sentenced to undergo life imprisonment with fine of Rs. 1,000/- each, in default to undergo six months' RI. 2. As per prosecution case, on 29.7.2000 at about 6:00 A.M. in the morning deceased Naththu alias Jaysingh was irrigating his field alongwith his servant Ajeet Singh. A well is situated on his field. The field of the accused persons is adjacent from two sides to the field of the deceased and a dispute about the demarcation of the field was pending between them. On the date of incident, Siroman appellant No. 1 went there armed with an axe and asked the deceased where is Hetam. The deceased replied that he is at home. Siroman caught hold of the deceased and took him to the boundary in between the fields of the deceased and the accused, in the meantime accused Sevak armed with "ballam" and Mev armed with "farsa" reached the spot and started beating Naththu alias Jaysingh. Siroman gave a "farsa" blow on the back side of deceased Naththu and two other accused caused injuries by "ballam" and "farsa", due to which deceased died. 3. A report of this incident was lodged by Sheela widow of the deceased and the police registered a criminal case against the accused persons. After investigation the police filed the challan and the case was committed to the Sessions Court. After framing of the charges and recording of evidence, the Sessions Court found the accused guilty of the charges levelled against them and sentenced accordingly. Hence this appeal. 4. Shri A.K. Barna, learned senior counsel for the appellants submitted that even though he has raised number of grounds on merit, he does not want to press them and confines his argument only to the sentence part on the ground that even assuming that the prosecution case is proved, the offence under section 302 of IPC is not made out and only offence under section 304 Part-II of IPC is made out. In view of this contention, this Court is not required to go into the details of the evidence about the incident. 5. Contention of learned counsel for the appellants is that from the allegation made in the FIR, which is Ex. P-l it is clear that deceased Naththu alias Jaysingh was irrigating his field with the water from the well, which is situated in his field. The accused Siroman went there and enquired about Hetam. The deceased told him that he is at home. He caught hold of the deceased and took him to the boundary between the two fields, where there was some dispute about the demarcation, in which the incident has taken place. Learned counsel for the appellants pointed out that as per allegation of the prosecution,. accused Siroman has caused only one injury by axe on the head of the deceased, which has resulted into his death. 6. Dr. N.D. Sharma (PW 2) has performed the postmortem of the deceased. While performing postmortem, he has found seven injuries on the body of the deceased, which are as under: (i) One incised wound on occipital region of scalp hemorrhage 3"x3/4" x bone deep. (ii) Two incised wounds on right forearm in upper 3/4"x1/4"x/10"bone deep, second in middle region 3/4"xl/4"x2/10". (iii) One lacerated wound right elbow size l"x1/2"xl/5". (iv) Two bruise on right hip, fracture close to each other 4"x2" each. (v) one bruise on right arm 3"xl 1/2". (vi) One abrasion on right thigh 3/4"x3/4". (vii) Two abrasions on right hip 1 "x3/4". 7. As per said doctor, blood was found plotted to scalp bone and hemorrhage. Injuries No.1 and 2 were caused by sharp and edged weapons, while other injuries were caused by "hard and blunt object. Apart from injury No.1, all injuries were simple in nature. In para 4 of his statement, he has stated that injuries No.4 to 7 can be caused by fall on the hips. He further submitted that injury No.7, which has resulted into death was not fracture. He has admitted that in his report Ex. P-2 he has mentioned that all injuries are simple in nature and deceased died due to coma. Thus, from his statement, it is clear that injury No.1, which is cause of death has not resulted in fracture and it is clear from the fact that axe blow was not hit by full force. 8. P-2 he has mentioned that all injuries are simple in nature and deceased died due to coma. Thus, from his statement, it is clear that injury No.1, which is cause of death has not resulted in fracture and it is clear from the fact that axe blow was not hit by full force. 8. In view of this, contention of learned counsel for the appellants is that even though deceased died due to injury attributed to Siroman, the same was not caused with an intention to commit murder and tl1erefore offence under section 302 of IPC is not made out and this is a case in which the offence can be altered to section 304 Part-I of IPC. 9. Shri Arun Barna, learned senior counsel for the appellants in support of his arguments has placed reliance on the judgment of apex Court in the case of Adu Ram v. Mukna and others [ AIR 2004 SC 5064 ] and has submitted that from the facts of this case offence under section 302 of IPC is not made out, but offence under section 304 Part-I is made out. 10. From perusal of aforesaid judgment, we find that in that case. number of injuries were found on the body of the deceased. The apex Court has held that number of injuries on the deceased person are not always determinative of offence and the Court has to consider number of facts i.e. weapons used, part of the body where injuries were inflicted and nature of injuries. In that injuries were caused by lathis and axes during the course of quarrel. The doctor who conducted the postmortem found 34 injuries including several fracture injuries. The trial Court convicted the accused for commission of offence under section 302 IPC. The High Court altered the said conviction to section 304 Part I, IPC and said order was maintained by the apex Court. 11. The next judgment relied on by learned counsel for the appellants is the case of Dharam v. State of Haryana [ AIR 2007 SC 397 ]. In that case, the incident has taken place on the field of the deceased. The accused attacked them with lethal weapons. The injuries caused to the deceased proved to be fatal. 11. The next judgment relied on by learned counsel for the appellants is the case of Dharam v. State of Haryana [ AIR 2007 SC 397 ]. In that case, the incident has taken place on the field of the deceased. The accused attacked them with lethal weapons. The injuries caused to the deceased proved to be fatal. However, in view of peculiar circumstances in which incident has taken place the apex Court has held that offence under section 304 Part-I, IPC is made out. 12. The last judgment cited by learned counsel for the appellants is the case of Ram Jattan and others v. State of U.P. [ AIR 1994 SC 1130 ] in which the apex Court has altered the sentence in under section 304 Part I, IPC, as the medical report did not clarify which of the injuries was sufficient to cause death. 13. After perusing the evidence and statements of witnesses, it is clear that field of the deceased and the accused were adjacent to each other from two sides and this fact is clear from the spot map Ex. P-16. It has also come on record that a dispute was pending between them about the demarcation. As per prosecution case, appellant No.1 Siroman went near the spot where the deceased was irrigating his field with the water, where he caught hold of the deceased and took him to the disputed boundary. There was some hot talks between them. On hearing cry, appellants No.2 and 3 also went on the spot and this gave quarrel between the parties. It is true that boundary dispute between the parties did not arise on the date of incident. The matter was pending in the Court, but from the fact that the accused went on the spot and there was some hot talks about the boundary dispute between them. It is clear from the medical evidence that except injury No.1, all the injuries were simple in nature. The depth of injury No.1 is 3"x3/4" bone deep. The said injury has not resulted into fracture and the deceased died due to coma, which shows that blow of axe was not with full force. This shows that intention of the accused was not to cause death of the deceased. The depth of injury No.1 is 3"x3/4" bone deep. The said injury has not resulted into fracture and the deceased died due to coma, which shows that blow of axe was not with full force. This shows that intention of the accused was not to cause death of the deceased. Considering these facts, we hold that offence under section 302, IPC is not made out, but we find them guilty for commission of offence under section 304 Part-I of IPC. 14. As regards sentence, learned counsel for the appellants submitted that accused No.1 Siroman has already undergone more than 6 years and 8 months' imprisonment, while accused Nos. 2 and 3 have already undergone more than 3 and 4 years' imprisonment respectively. He submitted that injuries attributed to accused Nos. 2 and 3 are simple in nature and considering this fact he prays that accused may be released on the sentence already undergone by them. 15. Considering the fact that the appellant No.1 Siroman has already undergone for more than 6 years and 8 months RI, we sentence him to the sentence already undergone by him by enhancing the amount of fine from Rs. 1,000/- to Rs. 15,000/-. The enhanced amount shall be deposited within a period of two months from today, failing which he shall have to undergo RI for one year. He is in custody and shall be released, if not wanted in any other case only after depositing enhanced amount of fine. 16. As regards appellants No.2 and 3 are concerned, considering the fact that injuries attributed to them are simple in nature and further considering the fact that they have already undergone for more than 3 and 4 years respectively, we sentence them to the sentence already undergone by them by enhancing the amount of fine from Rs. 1,000/- to Rs. 15,000/each. The enhanced amount shall be deposited within a period of two months from today, failing which they shall have to undergo RI for one year. The bail bonds and sureties of the aforesaid appellants shall stand discharged only after depositing the enhanced amount of fine. 17. In the result of the aforesaid discussions, the appeal is allowed in part. 15,000/each. The enhanced amount shall be deposited within a period of two months from today, failing which they shall have to undergo RI for one year. The bail bonds and sureties of the aforesaid appellants shall stand discharged only after depositing the enhanced amount of fine. 17. In the result of the aforesaid discussions, the appeal is allowed in part. The conviction of the appellants under sections 302 and 302/34 of IPC and sentence thereon is set aside, but instead they are convicted under section 304 Part-I of IPC and each of them is sentenced to suffer imprisonment already undergone by them and to pay a fine of Rs. 15,000/each failing which they shall further suffer RI for one year. Out of theamount of fine realized, 50% shall be paid to the widow of the deceased.