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Madhya Pradesh High Court · body

2009 DIGILAW 178 (MP)

Gendlal v. State of M. P.

2009-02-05

K.S.CHAUHAN, RAKESH SAKSENA

body2009
JUDGMENT Saksena, J. --1. Since both the appeals arise out of the common judgment of conviction dated 29.6.2001 passed by the First Additional Sessions Judge, Balaghat in Sessions Trial No. 164/2000 convicting the appellants under section 302/34 and 323/34 of the Indian Penal Code and sentencing them to life imprisonment with fine of Rs. 5,000/- and rigorous imprisonment for six months to each of them, are being disposed of by this common judgment. 2. Prosecution case in short is that at about 8.00 a.m. on 25.3.1991, when Johar Sigh (deceased) was sitting in the courtyard of his house, appellants/accused reached there. Accused Dev Singh, the father of accused Gendlal, asked Johar Singh as to why he had held his son. Johar singh told him that he should repay Rs. 2,000/-, which he had taken from him for purchasing bullocks. On this, an altercation ensued, in the course of which both the accused persons assaulted lohar Singh by "Lathi" and "Peedha" Dev Singh dealt with a Peedha blow on his head and Gendlal felled Johar Singh on the ground and tried to press his neck by mounting over his chest. Saniaro Bai (PW-l) and Ramota Bai (PW-2) tried to intervene, but they were. also assaulted by them. Saniaro Bai went to Police Station, Paraswada and lodged a report, which was recorded in Rojnamcha Sanha 638 (Ex. P/17-C). Johar Singh, Saniarobai and Ramota Bai were sent to Community Health Centre, Paraswada for examination of their injuries and treatment. During the treatment at District Hospital Balaghat, on 26.3.1991, Johar Singh expired then the first information report (Ex. P/18), recorded under section 307/34 of the Indian Penal Code, was converted into Section 302/34 of the Indian Penal Code. 3. PW-6 Dr. Ram Rajak examined the injuries of Johar Singh and vide his injury report Ex. P/6 found one bruise 4"x2" with swelling on the left side of his head, swelling 2"x2" on the right side of the occipital region of skull and an abrasion l"x 1/2" on the back side of right hand elbow. He also examined the injuries of Saniaro Bai and Ramota Bai and found one lacerated wound 3"x1/4"x1/4" on the left parietal region of the skull of Saniaro Bai and one lacerated wound 2"x 1/4"x 1/4" on the right side of the occipital region of the skull of Smt. Ramota Bai. Their injury reports are Ex. PI7 and P/8 respectively. 4. He also examined the injuries of Saniaro Bai and Ramota Bai and found one lacerated wound 3"x1/4"x1/4" on the left parietal region of the skull of Saniaro Bai and one lacerated wound 2"x 1/4"x 1/4" on the right side of the occipital region of the skull of Smt. Ramota Bai. Their injury reports are Ex. PI7 and P/8 respectively. 4. PW-8 Dr. G-C. Sharma, Medical Officer of District Hospital, Balaghat performed postmortem examination of the body of Johar Singh. He found (1) one contusion 4"x3" on the left tempo-parietal region of the skull (2) abrasion 1.5cm.xlcm. on right forearm and (3) one contusion 3"x2" reddish in colour on right tempo-parietal region of skull. On internal examination, he found extensive extra cranial red colour haematoma with blood clot under injuries 1 and 3. There was depressed fracture under both the injuries of parieto-temporal region. Fracture extended to both outer and inner table of the skull. Extra dural blood clots were present in dural matter of the brain. In his opinion, the injuries were homicidal in nature and death was caused due to sub-arachnoid and extra-dural haemorrhage leading to compression of brain. 5. After investigation, charge sheet was filed and the case was put for trial. 6. The defence of the accused persons was that they had taken bullock from the deceased for Rs. 2,000/-. The deceased was demanding money immediately, but because of their being his relatives they did not give money immediately, therefore, he got annoyed and while removing a pillar of Marriage "Mandap", when he and other ladies suffered injuries by fall of woods, falsely implicated them. According to accused Gendlal, Imlabai (PW4) was his wife, but she did not want to live with him at his house. 7. Learned trial Court, relying on the evidence of PW-1 Saniaro Bai, PW-2 Ramota Bai, PW-4 Imla Bai the medical evidence of PW-6 Dr. Ram Rajak, PW-8 Dr. G.C. Sharma and PW-10 Dr. P.S. Gour held the accused persons guilty and convicted and sentenced them as mentioned above. 8. Smt. Durgesh Gupta, learned counsel for the appellants submits that the trial Court erred in convicting them under section 302/34 of the Indian Penal Code. According to her, at the most, it could be a case under section 304-II of the Indian Penal Code. The incident had occurred suddenly on the spur of the moment and was not premeditated one. Smt. Durgesh Gupta, learned counsel for the appellants submits that the trial Court erred in convicting them under section 302/34 of the Indian Penal Code. According to her, at the most, it could be a case under section 304-II of the Indian Penal Code. The incident had occurred suddenly on the spur of the moment and was not premeditated one. It cannot be held that accused persons, who were closely related to deceased, in any manner, intended to cause his death. She points out that both the accused persons have suffered actual sentence of imprisonment of about 9 years. Their sentence deserves to be reduced to the period of sentence already undergone by them. Per contra, Shri R.S. Patel, learned Additional Advocate General, for the State submits that the trial Court committed no error in convicting the accused persons under section 302/34 of the Indian Penal Code. The finding of conviction and sentence does not call for any interference. 9. We have heard the counsel of both the sides and perused the oral as well as documentary evidence on record carefully. 10. From the evidence of PW-1 Saniaro Bai, PW-2 Ramota Bai and PW4 Imla Bai, it is revealed that Imla Bai, the daughter of deceased Johar Singh, was married to accused Gendlal. Accused Dev Singh was the father-in-law of Imla Bai. On the date of incident, when Johar Singh was sitting in the courtyard outside his house, both the accused persons reached there and felled Johar Singh on the ground. Dev Singh picked up a "Peedha" (a wooden plank used for sitting) and stuck it against the head of Johar Singh. He also assaulted PW-1Samaro Bai and PW-2 Ramota Bai. Saniaro Bai, in the cross-examination, was confronted with her police statement (Ex. D/I) wherein she mentioned that accused persons came to her house and told to Johar Singh to return the bullock, which he had purchased for Rs. 2,000/- and also to send back Gendlal, who was held by him as "Ghar Jamai" and this led to a wordy quarrel and the assault. Thus, from the evidence of PW-I Saniro Bai, PW-2 Ramota Bai and PW-4 Imla Bai, it is established that accused Gendlal threw Johar Singh to the ground and Dev Singh inflicted injuries by "Peedha" on the head of Johar Singh and also assaulted by it to PW-1 Saniro Bai and PW-2 Ramota Bai. Thus, from the evidence of PW-I Saniro Bai, PW-2 Ramota Bai and PW-4 Imla Bai, it is established that accused Gendlal threw Johar Singh to the ground and Dev Singh inflicted injuries by "Peedha" on the head of Johar Singh and also assaulted by it to PW-1 Saniro Bai and PW-2 Ramota Bai. In the cross-examination, nothing could be elicited to show that the aforesaid witnesses were speaking untrue. In our considered opinion, the trial Court did not commit error in holding that the accused persons, in furtherance of their common intention, caused injuries-to Johar Singh, PW-1 Saniaro Bai and PW-2 Ramota Bai. 11. From the evidence of PW-8, Dr. G.C. Sharma, who performed the postmortem examination of the body of Johar Singh, it has been clearly established that the deceased had suffered two injuries in the skull, which were caused by hard and blunt object. Due to aforesaid injuries, the skull bones were depressed and fractured resulting into extra-dural and sub-dural haemorrhage, which ultimately resulted into his death. 12. In view of the above evidence, we are clearly of the view that appellants/ accused Gendlal and Dev Singh assaulted, Johar Singh by "Peedha" as a result of which he sustained fatal injuries and died in the hospital and that PW-1 Saniaro Bai and PW-2 Ramota Bai suffered simple injuries. 13. As far as the arguments advanced by the learned counsel for the appellants that the acts of the accused persons do not fall under section 300 of the Indian Penal Code is concerned, we find that the facts of the case and the evidence of the prosecution itself indicate that the assault was not premeditated, as the quarrel sparked between them and the deceased resulted in sudden assault by an object like "Peedha" which cannot be termed as a conventional weapon. In these circumstances, in our view, Exception 4 to section 300 of the Indian Penal Code is attracted, which provides as under:- "Exception 4: culpable homicide is not murder if it is committed without premeditation in sudden fight in the heat of passion upon a sudden quarrel and without the offender's having taken undue advantage or acted in a cruel and unusual manner." Therefore, the offence committed by the accused/appellants was culpable homicide not amounting to murder. However, looking to the nature of injuries found on the body of deceased, it seems that they caused the aforesaid injuries to deceased with the intention of causing such bodily injuries as were likely to cause his death. As such, appellants are, liable to be punished under First Part of section 304 of the Indian Penal Code. 14. For the reasons aforesaid, the finding of the learned Additional Sessions Judge holding the appellants guilty of the offence of murder punishable under section 302 of the Indian Penal Code is set aside, instead they are held guilty for commission of offence of culpable homicide not amounting to murder punishable under section 304-1 of the Indian Penal Code and sentenced to undergo rigorous imprisonment for 10 years. The sentence of fine imposed by the trial Court is, however, set aside. Conviction and sentence of appellants under section 323/34 of the Indian Penal Code is also affirmed. 15. The appellants, who are said to have been in custody for over 9 years, on completion of the sentence of 10 years, shall be released forthwith, if not required in any other case. ' 16. Appeals allowed to the extent indicated hereinabove. 17. A copy of this judgment be kept in the file of Criminal Appeal No.1060/01.