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2008 DIGILAW 1409 (MP)

Mitthu Singh v. State of M. P.

2008-12-04

INDRANI DATTA, S.S.DWIVEDI

body2008
JUDGMENT Dwivedi, J. -- 1. The appellants have preferred this appeal feeling aggrieved by the impugned judgment of conviction and sentence dated 10.6.1998 passed by Additional Sessions Judge, Mungaoli, district Guna in Sessions Trial No.305/96, whereby held all the four appellants guilty for the offence punishable under section 302 read with section 34 of IPC and also under section 324 read with section 34 of IPC and sentenced each of them to imprisonment for life with a fine of Rs.100/- and three years RI with a fine of Rs.100/- on each count. Both the sentences are ordered to run concurrently. 2. Briefly stated the facts of the case are that deceased Khub Singh is the real brother of appellant-accused Mitthu Singh. There was one more brother Hakim Singh, who died 10-12 years before the incident. The land left by deceased Hakim Singh was in possession of the accused-appellant Mitthu Singh, who was ploughing the aforesaid land. It is alleged that deceased Khub Singh being the brother of deceased Hakim Singh was demanding his share in the aforesaid land left by his brother deceased Hakim Singh but accused Mitthu Singh had not responded on the demand of deceased Khub Singh. It is alleged that on 5.7.1996 at village Maholi when the appellant-accused Mitthu Singh with his son while ploughing the concerning land by means of a tractor, at that time deceased Khub Singh reached on the spot and objected the ploughing of the field by the accused Mitthu Singh. At that time it is alleged that accused Kallu @ Kalyan Singh had caused injury to deceased Khub Singh on the head by means of a farsa, thereafter accused Mitthu Singh had also caused injury to deceased Khub Singh by means of a farsa. Thereafter, it is alleged that Bahadur Singh -- third accused, who is admittedly a crippled person, sat on the chest of deceased Khub Singh and caused injury by means of fists to deceased Khub Singh. Thereafter it is alleged that fourth accused Meerabai had also caused injury to deceased Khub Singh by means of an axe and fifth accused Ghasiti Bai had also caused injury to deceased Khub Singh by means of a lathi. The charge-sheet against Ghasiti Bai had been filed before the Juvenile Court, as she was below 16 years. Due to the injuries sustained to deceased Khub Singh, he died on the spot. The charge-sheet against Ghasiti Bai had been filed before the Juvenile Court, as she was below 16 years. Due to the injuries sustained to deceased Khub Singh, he died on the spot. The matter had been reported to police Outpost Malhargarh, on which basis report Ex.P-3 had been registered and the Assistant Sub-Inspector Ramveer Singh Bhadoriya reached on the spot, prepared the inquest Panchnama of the deadbody of deceased Khub Singh and sent the dead body for post-mortem examination to the Government Hospital at Mungaoli, where Dr. Vijay Satpal (PW12) performed the post-mortem of the deadbody of deceased Khub Singh and found near about seven injuries on various parts of his body and opined that excessive bleedings and haemorrhage resulted coma and ultimate death of Khub Singh and the injury sustained on the head was found to be sufficient for causing death; he proved the report Ex.P-21. The same doctor had also examined the injured eye-witness Dashrath son of Khub Singh and found 8 injuries on various parts of his body, for which proved the report Ex.P-20. During investigation, the Investigating Officer had recorded the statements of the witnesses, prepared the spot map, arrested the accused persons, also seized the various weapons from their possession alleged to be used in this incident and after due investigation the charge-sheet has been filed. 3. All the accused persons abjured the guilt and their defence is of false implication in this case. The learned trial Court after due appreciation of the entire prosecution evidence on record held all the accused persons guilty for the offence punishable under section 302 read with section 34 and section 324 read with section 34 of IPC and sentenced them as stated herein above; feeling aggrieved by which the appellants preferred this appeal. 4. Having heard the learned counsel for the appellants and public prosecutor for the State and perused the record. 5. It is submitted by the learned counsel for the appellants that admittedly appellant No.3-accused Bahadur Singh is a crippled person. He is not even able to walk easily without any support due to paralysis in legs and a false allegation has been made against the accused Bahadur Singh that he had also caused an injury to deceased by means of fists. He is not even able to walk easily without any support due to paralysis in legs and a false allegation has been made against the accused Bahadur Singh that he had also caused an injury to deceased by means of fists. Similarly, the involvement of accused No.4 Meerabai in this incident is also false, as the witnesses alleged that she had also caused injury by means of an axe on the chest of deceased Khub Singh, but no such injury on the chest has been found by the doctor concerned, who performed the post-mortem of the dead body of deceased Khub Singh and under these circumstances the conviction of appellant No.3-Bahadur Singh and appellant No.4-Meerabai is erroneous and liable to be set aside. 6. It is further submitted by learned counsel for the appellants that with regard to the conviction of appellants Mitthu Singh and Kallu @ Kalyan Singh is concerned, admittedly the incident had taken place all of a sudden when the deceased Khub Singh came on the spot and tried to obstruct illegally in ploughing act of the accused persons and the accused Kalyan Singh had caused a single injury on the head of deceased Khub Singh without intention of causing death. Under these circumstances the accused persons are having right of private defence of their property, of which the deceased was illegally claiming possession and in such circumstances at the most, the act of the accused Mitthu Singh and Kalyan Singh will come under the purview of offence punishable under section 304 Part II of IPC and not under section 302 of IPC as held by the trial Court. Therefore, prayed for alteration of conviction from section 302 to section 304 Part II of IPC and just reduction of the jail sentence. 7. In reply, learned public prosecutor appearing for the State supported the impugned judgment and submitted that the prosecution has fully proved the case against all the four accused persons. The injured eye-witness had clearly supported the prosecution story and trial Court has rightly held all the four accused persons guilty for the aforesaid offence and no grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial Court, therefore, prayed for dismissal of the appeal. 8. The injured eye-witness had clearly supported the prosecution story and trial Court has rightly held all the four accused persons guilty for the aforesaid offence and no grounds are available for any interference in the impugned judgment of conviction and sentence passed by the trial Court, therefore, prayed for dismissal of the appeal. 8. First of all, with regard to the death of Khub Singh in this incident is concerned, this fact has not been controverted before the trial Court as well as before this Court and the fact of death of deceased Khub Singh had been proved by the prosecution on the basis of statements of Pappu @ Govind Singh (PW3), who is the son of deceased Khub Singh and the eye-witness of the incident; Dashrath (PW4), the second son of deceased Khub Singh; Parikshit (PW5) before whom the inquest Panchnama Ex.P7 had been prepared by the Investigating Officer; Baldevsingh (PW6), Kishore Singh (PW7) and Khilansingh (PW8), who had seen the dead body of deceased Khub Singh on the spot and by the statement of Investigating Officer Ramveer Singh Bhadoriya (PW17), who prepared the inquest Panchnama Ex.P-7 of the dead body of deceased Khub Singh. 9. The cause of death of deceased Khub Singh has been proved by the Medical Officer Dr. Vijay Satpal (PW12), who performed the post-mortem of the dead body of deceased Khub Singh and found seven injuries on various parts of the body, out of which three injuries were found to be caused by some sharp edged weapon; on internal examination found that cause of death is haemorrhage and excessive bleeding due to the injuries sustained to the deceased, which resulted coma and ultimate death. All the injuries were found to be ante-mortem and injury No.1, which is on the head caused by sharp edged weapon, is sufficient to cause death and also proved the post-mortem report Ex.P-21. 10. Thus, on the basis of the aforesaid prosecution evidence on record in our considered opinion prosecution has proved the fact that in this incident one Khub Singh died due to the head injury and his death is homicidal in nature. 11. 10. Thus, on the basis of the aforesaid prosecution evidence on record in our considered opinion prosecution has proved the fact that in this incident one Khub Singh died due to the head injury and his death is homicidal in nature. 11. Now, first of all, with regard to the involvement of the accused No.3-Bahadur Singh and accused No.4-Meerabai is concerned, on perusal of the FIR, which had been lodged by the eye-witness Pappu @ Govind Singh (PW3), in the FIR itself it has been mentioned that the accused Bahadur Singh, who is a crippled person, sat on the chest of his father Khub Singh and caused injury by means of fists, therefore, there is no dispute about the fact that accused Bahadur Singh is a handicapped person, who cannot even walk without any support. In view of that, it cannot be found to be a true version of Pappu @ Govind Singh that such a crippled person can also cause any injury to deceased Khub Singh in a situation when co-accused Kalyan Singh had already caused an injury on the head by means of a sharp edged weapon and blood was oozing from the aforesaid injury, thereafter it cannot be presumed that a crippled person would also sit on the chest of Khub Singh and may also cause any injury by means of fists. In view of that, that part of the statement of Pappu @ Govind Singh (PW3) with regard to accused No.3-Bahadur Singh appears to be not probable and worthy of much reliance. Therefore, the involvement of accused Bahadur Singh in this incident appears to be false. 12. Similarly, with regard to the involvement of fourth accused Meerabai is concerned, it is alleged against her that she had also caused injury to deceased Khub Singh by means of an axe, due to which Khub Singh sustained injury on the shoulder but in post-mortem examination Dr. Vijay Satpal (PW12) had not found any such injury on the shoulder, which may be caused by some sharp edged object like axe, which can be attributed to fourth accused Meerabai. Therefore, the statement of eyewitness Pappu @ Govind Singh (PW3) with regard to the involvement of fourth accused Meerabai that she had also caused any injury by means of an axe on the shoulder of deceased Khub Singh also does not find support by the medical evidence. Therefore, the statement of eyewitness Pappu @ Govind Singh (PW3) with regard to the involvement of fourth accused Meerabai that she had also caused any injury by means of an axe on the shoulder of deceased Khub Singh also does not find support by the medical evidence. Under these circumstances, the involvement of Meerabai for causing any injury to deceased Khub Singh also appears to be false and by this statement appellant No.4-Meerabai cannot be held guilty for causing any injury to deceased Khub Singh and in view of that, she cannot be held guilty for causing death of deceased Khub Singh with the aid of section 34 of IPC. 13. As per statement of other witnesses Dashrath (PW4) and Ramwati Bai (PW9), both these witnesses have improved their statement and stated before the Court that Meerabai had caused an injury by means of an axe from the blunt side of the axe but as stated herein above, when there is no mention of the fact in the FIR by witness Pappu @ Govind Singh that accused Meerabai had caused any injury by means an axe from the blunt side of the axe on the shoulder of deceased Khub Singh then certainly this appears to be material improvement in the statement of these witnesses before the trial Court and on the basis of this discrepancy in the statement the involvement of accused-appellant Meerabai in this incident is also found to be doubtful and on the basis of such evidence she cannot be held guilty for causing any injury to deceased Khub Singh. 14. Therefore, in view of the aforesaid facts and circumstances of the case, in our considered opinion, the involvement of accused No.3-Bahadur Singh and accused No.4-Meerabai in this incident for causing any injury to deceased Khub Singh is found to be doubtful and therefore, the finding of conviction against these two appellants for causing death of deceased Khub Singh is erroneous and liable to be set aside. 15. Now there remains the allegation against only two accused, namely, Mitthu Singh and Kalyan Singh that they had caused injuries to deceased, due to which he died on spot. 15. Now there remains the allegation against only two accused, namely, Mitthu Singh and Kalyan Singh that they had caused injuries to deceased, due to which he died on spot. For this, eye-witness Pappu @ Govind Singh (PW3) clearly stated that first of all accused Kalyan Singh caused an injury to his father by means of farsa on the head and thereafter Mitthu Singh had also caused injury to deceased Khub Singh, due to which Khub Singh fell down and thereafter died on the spot. When he tried to intervene then Kalyan Singh had also caused injury to him by means of farsa on the left hand. His brother when tried to intervene then Mitthu Singh had also caused injury to him. This statement has got further support by the statement of Dashrath (PW4) and Ramwati Bai (PW9) that first of all Kalyan Singh had caused injury on the head of deceased Khub Singh and thereafter Mitthu Singh had also caused injury to him, due to which Khub Singh fell down and died. The aforesaid statement of the prosecution witnesses has got further support by the FIR, which had been lodged by Pappu @ Govind Singh (PW3) immediately after the incident, wherein the involvement of these two accused Kallu @ Kalyan Singh and Mitthu Singh had been clearly mentioned. This has got support by the medical evidence of Dr. Vijay Satpal (PW12) also, who proved the incised injury found on the head and on fronto parietal region, which is the ultimate result of death of Khub Singh. 16. In view of the aforesaid prosecution evidence on record, in our considered opinion, the prosecution has successfully proved the fact that it is the appellants-accused Kalyan Singh and Mitthu Singh, who had caused injuries to deceased Khub Singh, due to which he died on the spot. 17. Now the fact remains that the act of causing injury to deceased by accused Mitthu Singh and Khub Singh will come under the provisions of section 302 of IPC or under section 304 Part I or Part II of IPC. It is apparent that there was dispute between the complainant party and the accused party with regard to the agricultural land, which was left by one Hakim Singh, who was the real brother of both accused Mitthu Singh and deceased Khub Singh and Khub Singh was also demanding his share in he aforesaid property. It is apparent that there was dispute between the complainant party and the accused party with regard to the agricultural land, which was left by one Hakim Singh, who was the real brother of both accused Mitthu Singh and deceased Khub Singh and Khub Singh was also demanding his share in he aforesaid property. Admittedly the land was in possession of Mitthu mgh. On the date of incident also he was ploughing the concerning land, at that time it is alleged that Khub Singh came there and tried to obstruct the act of ploughing of the field. At that time all of a sudden this incident had taken place. Therefore, the intention of accused cannot be gathered and it cannot be inferred that they had any intention for causing death of deceased Khub Singh, as narrated by the statement of prosecution witnesses that when Khub Singh tried to obstruct the ploughing work of Mitthu Singh-accused, at that time without any intention both the accused Mitthu Singh and Kalyan Singh had caused the aforesaid injuries to deceased Khub Singh. Under these circumstances, admittedly when the intention of causing death is not apparent, though the accused persons might have had knowledge that due to the injuries the deceased Khub Singh may die, in our considered opinion the act of accused Mitthu Singh and Kalyan Singh for causing single blow to deceased Khub Singh clearly comes within the purview of Exception 4 of section 300 of IPC, which is punishable not under section 302 but under section 304 Part II of IPC. Under these circumstances, the conviction of appellants under section 302 of IPC may be altered one under section 304 Part II of IPC. 18. The other witnesses examined by the prosecution are Dr. Under these circumstances, the conviction of appellants under section 302 of IPC may be altered one under section 304 Part II of IPC. 18. The other witnesses examined by the prosecution are Dr. Om Prakash Gupta (PW1), who proved the injuries to Govind Singh, for which both the accused Khub Singh and Mitthu Singh have been found guilty for the offence under section 324 of IPC, Shobharam (PW2) proved the seizure memo of clothes of the deceased Ex.P-2, received from the hospital after post-mortem examination; Parikshit (PW5) proved various memos prepared by the Investigating Officer, which are Exts.P-5 to P-15; Baldevsingh (PW6) only saw the injured Khub Singh and Govind Singh, he had been declared hostile because he had not supported the prosecution story; Kishore Singh (PW7) proved the inquest Panchnama Ex.P-6; Khilan Singh (PW8) also proved the inquest Panchanama prepared by the Investigating Officer; Veersingh (PW10) and Mitthulal (PW11) have not proved anything in favour of the prosecution and both these witnesses had been declared hostile by the prosecution; Jaipal Singh (PW13) proved the registration of the FIR at Police Station Mungaoli as Ex.P-3; Amarsingh (PW14) and Ramesh Kumar (PW15) only proved the seizure memo prepared by the Investigating Officer; R.L. Sharma (PW16) and Ramveer Singh (PW17) proved the investigation part of the incident. 19. Thus, on re-appreciation of the entire prosecution evidence on record, in our considered opinion, the learned trial Court has wrongly held appellant No.3-Bahadur Singh and appellant No.4-Meerabai guilty for the offence under section 302 read with section 34 of IPC. Therefore, their conviction and sentence recorded by the trial Court is liable to be set aside. Similarly, conviction of the appellants Mitthu Singh and Kallu @ Kalyan Singh for the offence under section 302 read with section 34 of IPC is also erroneous and they are entitled to get an acquittal from the aforesaid offence. Instead thereof, both the accused persons are held guilty for the offence under section 304 Part II read with section 34 of IPC. 20. Resultantly, the appeal preferred by appellants No.3 and 4-Bahadur Singh and Meerabai is allowed, their conviction under section 302 read with section 34 and section 324 read with section 34 of IPC are set aside and both the appellants are acquitted from the aforesaid charges. They are on bail, their bail bonds stand discharged forthwith. 20. Resultantly, the appeal preferred by appellants No.3 and 4-Bahadur Singh and Meerabai is allowed, their conviction under section 302 read with section 34 and section 324 read with section 34 of IPC are set aside and both the appellants are acquitted from the aforesaid charges. They are on bail, their bail bonds stand discharged forthwith. The fine amount, if any deposited by him be refunded to them. 21. Similarly, the appeal preferred by the accused-appellants No.1 and 2 Mitthu Singh and Kallu @ Kalyan Singh is allowed in part, their conviction and sentence under section 302 read with section 34 IPC are set aside and they are acquitted from the aforesaid charge. Instead thereof, both the accused are held guilty for the offence punishable under section 304 Part II read with section 34 of IPC. They remained in jail for near about five years, therefore, they are sentenced to the period already undergone by them in jail, with a fine of RS.10,000/- (Rupees Ten thousands) on each. In default of payment of fine, they will suffer further imprisonment for one year. Both the accused are also held guilty for the offence punishable under section 324 read with section 34 of IPC and their sentence of three years RI with a fine of Rs.100/- as awarded by the trial Court is affirmed. 22. Out of the realized fine amount of Rs.20,000/- a sum of Rs.18,000/- (Rupees Eighteen thousands) be given to the wife of deceased Khub Singh as compensation amount. The appellants Mitthu Singh and Kalyan Singh are also on bail, their bail bonds shall stand discharged after deposit of fine amount within one month, failing which the trial Court may issue arrest warrant and send them to jail for serving the jail sentence, which has been awarded in default of payment of fine.