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Madhya Pradesh High Court · body

2008 DIGILAW 819 (MP)

Onkarsingh S/o Karansingh v. State Of M. P.

2008-07-03

S.L.KOCHAR

body2008
JUDGMENT : The appellants have filed this appeal, challenging the impugned judgment passed by learned III Addl. Sessions Judge, Mandsaur in ST No. 68/2007, judgment dated 31-12-2007 whereby learned Judge convicted the appellant Onkarsingh under section 304(II) read with 34 of the Indian Penal Code, sentenced to undergo RI for seven years with fine of Rs. 5000/-; in default whereof to undergo six months RI whereas appellant Meharbansingh has been convicted under section 304-II of the Indian Penal Code, sentenced to undergo RI for seven years with fine of Rs. 5000/-; in default of payment of fine further sentenced to undergo six months RI. 2. According to the prosecution case, on 11-5-2007 in the evening at 7.00 p.m. Meharbansingh s/o Kishansingh, Resident of village Dhodhar took his she-buffalow for drinking water to hand pump where he heard the outcry and saw that near the house of Madu Nai deceased Banesingh was being assaulted by the appellants with lathi, kicks and fists and also abusing him. At that juncture, Nagusingh also reached over there upon which appellants went away and while going, issued threat for dire consequences in future. Nagusingh took Banesingh with him and thereafter he was taken on motor cycle by his brother Ransingh and Onkarsingh to Government hospital, Suvasra. Report in the police station was lodged by Meharbansingh on the basis of which police has registered Crime No. 80/2007. The dying declaration of the deceased could not be recorded because he was unconscious. Deceased was shifted to the District Hospital, Mandsaur where he died on 12-5-2007 in the evening at 6.45 p.m.. The post-mortem was performed by Dr. V. S. Mis and initial examination of the deceased was done by Dr. K. R. Patidar (PW.5). Both the appellants were arrested and on disclosure statement of appellant Meharbansingh, one bamboo stick was seized. On completion of investigation, charge-sheet was filed against the appellants for the offence as mentioned hereinabove. 3. The appellants denied the charges, therefore, put to trial and they have examined three witnesses in defence. Their case is that Banesingh sustained injuries on his head by dashing against door of Madusingh Nai. Learned trial Court, after recording the statements of witnesses of both the parties and hearing them, convicted the appellants as mentioned hereinabove. 4. 3. The appellants denied the charges, therefore, put to trial and they have examined three witnesses in defence. Their case is that Banesingh sustained injuries on his head by dashing against door of Madusingh Nai. Learned trial Court, after recording the statements of witnesses of both the parties and hearing them, convicted the appellants as mentioned hereinabove. 4. Having heard the learned counsel for parties and after perusing the entire record, this Court is of the opinion that conviction of the appellant No. 1 Onkarsingh with the aid of section 34 of the Indian Penal Code is not sustainable because there is no evidence on record that he had pre-meeting of mind, premeditation and pre-plan for committing culpable homicide not amounting to murder with appellant No. 2 Meharbansingh. This appellant was empty handed and according to prosecution witnesses, Onkarsingh assaulted deceased by fist. According to post-mortem report, deceased suffered externally only two injuries, both were on head region caused by hard and blunt object. These injuries could have not been caused by the appellant by fist and there is no eye witness account saying that appellant dealt a fist blow on the head of the deceased. 5. It has also come in the statement of prosecution witnesses that while assaulting, appellants were saying the deceased that he was defaming the daughter of appellant No. 1 Onkarsingh and sister of appellant No. 2 Meharbansingh in the village. It appears that dispute arose on account of some sort of ill-talk made by the deceased against daughter of appellant No. 1 Onkarsingh or any kind of mischief played by him against decency and reputation of the daughter of appellant No. 1. There is no strong evidence for any motive which led the appellants to form common intention to commit murder of deceased and in furtherance of the said common intention, they assaulted the deceased. Having lathi in the hand and moving with lathi is a normal feature in the village by the villagers and agriculturists. It appears that both the appellants; father and son were going and deceased met them on the way, thereafter some verbal altercation took place on account of misbehaviour or ill-talk done by the deceased or regarding damaging the reputation of the daughter of the appellant No. 1. Thereafter marpit took place and appellant No. 2 Meharbansingh dealt lathi blows. It appears that both the appellants; father and son were going and deceased met them on the way, thereafter some verbal altercation took place on account of misbehaviour or ill-talk done by the deceased or regarding damaging the reputation of the daughter of the appellant No. 1. Thereafter marpit took place and appellant No. 2 Meharbansingh dealt lathi blows. The post-mortem surgeon found only two external injuries whereas in initial examination Dr. Patidar (PW.5) noted six injuries out of which two injuries were on head, rest were on different parts of the body i.e. bruise and contusions, other injuries could be caused by fall and no opinion has been given by the Doctor that fatal injury could be caused by fist blow. 6. The moment Nagusingh reached on the spot, the appellants left the deceased and while going from the scene of occurrence, warned him for not to repeat the behaviour otherwise he will face the same consequence in future. This warning shows that at the time of incident, appellants were not having intention to commit murder of deceased. In this view of the matter, this Court is of the view that appellants should be liable for their individual act. 7. In the result, this appeal is allowed in part. Conviction and sentence passed against the appellant No. 1 Onkarsingh under section 304-II read with 34 of the Indian Penal Code are hereby set aside, instead thereof he is convicted under section 323 of the Indian Penal Code and sentenced to the period already undergone (five months and four days) and fine of Rs. 1,000/-, in default of payment of fine he shall undergo RI for three months. 8. The conviction of appellant No. 2 Meharbansingh under section 304-II of the Indian Penal Code is upheld but instead of sending him to jail, he is granted benefit of section 6 of the Probation of Offenders Act because on the date of incident he was below 21 years of age which is clear from the age mentioned in the accused statement as well as arrest memo and today learned counsel for appellants filed two original mark sheets of the appellants showing his date of birth 10-4-1987 by which it is also established that appellant No. 2 Meharbansingh was below 21 years of age. Offence under section 304-II of the Indian Penal Code is not mandatorily punishable with jail sentence. Offence under section 304-II of the Indian Penal Code is not mandatorily punishable with jail sentence. The maximum sentence prescribed is 10 years or fine or with both. Since this offence is not punishable with death or life imprisonment and appellant was below 21 years of age on the date of incident, section 6 of the Probation of Offenders Act would come into play which put an injunction upon the Court to send the appellant to jail because he was below 21 years of age and entitled for getting benefit of section 6 of the Probation of Offenders Act unless there are some compelling reasons for not using provisions of this section in favour of this appellant. This Court is not finding any material in the record and nothing adverse has been pointed out and submitted by the learned Prosecutor against the appellant regarding his character or involvement in any other criminal case. This appellant is also not having any criminal antecedent, therefore, in view of Supreme Court judgment passed in case of State of Karnataka vs. Mudappa, 1999(2) MPWN Note 214, Mohammad @ Biliya vs. State of Rajasthan, 2000(10) SCC 486 and judgment rendered by this Court in Criminal Appeal No. 761/1994, the appellant No. 2 Meharbansingh is granted benefit of provision of section 6 of the Probation of Offenders Act. The learned trial Court is directed to release the appellant No. 2 upon his furnishing bail bond of Rs. 20,000/- with one surety in the like amount for keeping and maintaining peace and good behaviour in the locality for three years. Upon commission of breach of this condition, the appellant shall appear before the trial Court for undergoing the sentence of seven years RI. Appellant No. 2 Meharbansingh is on bail. His bail bond and surety bond are discharged. 9. The appeal is allowed in part, in the term indicated hereinabove. Office is directed to send copy of this judgment along with the record to the trial Court immediately.