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2009 DIGILAW 472 (MP)

Prakash v. State of M. P.

2009-04-13

B.M.GUPTA, S.S.DWIVEDI

body2009
JUDGMENT Dwivedi, J. -- 1. The appellants have preferred this criminal appeal under section 374 (2) of CrPC feeling aggrieved by the impugned judgment dated 16.12.1999 passed by Special Judge and Additional Session Judge, Gwalior in Sessions trial No. 361/98, whereby both the appellants have been found guilty for the offence punishable under section 302/34 of IPC and each of the appellants has been sentenced to life imprisonment. 2. Briefly stated facts of the case are that on 10.8.1999 the complainant Suresh (PW 6) went to his maternal aunt's house situated at Nichlapura, Lashkar, Gwalior. When he was talking to deceased Babulal who is son of his maternal aunt, at that time, it is alleged that both the appellants came there armed with stick, started abusing the deceased Babulal and also caused injury to him by means of stick, due to which, Babulal sustained various injuries on chest and other parts of the body. Witnesses Inder Singh and Autar Singh came there and tried to caught hold the accused persons, thereafter, both the appellants-accused fled away from the spot. First information report has been lodged by Suresh at police Station Madhoganj, Gwalior, on which basis, case under section 307 of IPC has been registered. Injured Babulal was sent to government hospital for his medical examination but on examination doctor found him dead.His death is reported to the police, on which basis, inquest report has been registered and police issued memo for postmortem examination of the dead body of the deceased Babulal and also prepared inquest panchnama of the dead body. Dr. Yogendra Singh (PW 7) performed the postmortem and opined that due to injury on chest which resulted failure of respiratory system and due to injury on the vital organ the deceased died. His death is within 24 hours from the time of examination. During investigation, statement of the witnesses were recorded. Accused persons were arrested and from their possession, bamboo stick was seized and after due investigation, the charge sheet was filed. 3. Both the appellants-accused persons abjured the guilt and their defence was of false implication in this case. Learned trial Court after due appreciation of the entire prosecution evidence held them guilty for the offence under section 302/34 of IPC and sentenced them to life imprisonment. Being aggrieved by which the appellants-accused have preferred this appeal. 4. 3. Both the appellants-accused persons abjured the guilt and their defence was of false implication in this case. Learned trial Court after due appreciation of the entire prosecution evidence held them guilty for the offence under section 302/34 of IPC and sentenced them to life imprisonment. Being aggrieved by which the appellants-accused have preferred this appeal. 4. Heard learned counsel for both the parties perused the record and impugned judgment. 5. Learned counsel for the appellants submitted that appellants are not challenging their involvement in this incident. Counsel for the appellants only submitted that trial Court has wrongly held the appellants guilty for the offence under section 302 of IPC; whereas the incident had taken place all of a sudden because of the some previous dispute in between the parties. The appellants were also not having any prior intention to cause death of the deceased Babulal. They were only armed with a stick and they caused injury by a stick on chest; without any intention to cause death of the deceased in this incident. Other injuries sustained to the deceased are simple in nature and may be caused due to scuffle in between both the parties and in such circumstances, only prayer is for alteration of the conviction of the appellants from 302 to 304 Part I or II of the IPC and just reduction of the jail sentence. 6. Learned Public Prosecutor supported the impugned judgment and submitted that looking to the nature of the injuries sustained to the deceased Babulal on chest' which appears to be sufficient to cause death the trial Court has rightly held the appellants guilty for the aforesaid offence punishable under section 302 of IPC and no grounds are available for any interference in the finding of conviction and sentence recorded by the trial Court, hence prayed for dismissal of the appeal. 7. As before this Court the counsel for the appellants' has not challenged the death of the deceased Babulal in this incident and that fact has also been proved by the prosecution on the basis of statements of Daulat Ram @ Daulatsingh (PW I) real brother of the deceased and.Rekha Kushwah (PW 2) sister of the deceased Babulal. Both these witnesses clearly stated that in this incident their brother Babulal died. Both these witnesses clearly stated that in this incident their brother Babulal died. Similarly, witnesses Karansingh (PW 3), Nattu (PW 5), Suresh Kushwah (PW 6), Indersingh (PW 9) and Omprakash (PW 10) the investigating officer who prepared the inquest panchanama Ex. P-6 also proved the fact that in this incident Babulal died. 8. With regard to cause of death of Babulal is concerned, medical witness Dr. Yogendra Singh (PW 7) performed the postmortem of the dead body and found 10 abrasions on various parts of the body, one injury having swelling on chest and on internal examination found fracture of 2nd, 3rd and 4th rib which also damaged the left lung of the deceased and on which basis opined that due to injury on the chest vital part of deceased which resulted failure of respiratory system the deceased died and his death is homicidal in nature and also proved the report Ex. P-7.In cross-examination he also clarified that internal haemorrhage is due to injury No.3 which sustained on chest and also resulted fracture of 2nd, 3rd and 4th rib bone and in other remaining 10 injuries no severe haemorrhage is found and they were found to be simple in nature on various parts of hand and leg only. 9. Thus, on the basis of aforesaid evidence on record, in our considered opinion, the prosecution has proved the fact that due to injury on chest deceased Babulal died in this incident. 10. Now, the question arise as to whether the appellants-accused had intentionally caused the death of the deceased Babulal in this incident or not for which they can be held guilty for the offence under section 302 of IPC or for the offence under section 304 Part I of IPC. 11. The material eye witness examined by the prosecution is Suresh (PW 6) who has stated that both the appellants had firstly caught hold the deceased Babulal by his belt and brought him out from the house. On the basis of this statement it is apparent that other abrasions found on hand and leg on the body of the deceased are due to aforesaid scuffle when both the appellants tried to pull out the deceased from his house and thereafter it is stated that both the appellants had caused injury to the deceased by means of lathi. 12. As per PM report Ex. 12. As per PM report Ex. P-7 only one injury is found to be grievous, in nature which is sustained to the deceased on chest due to which deceased sustained fracture of 2nd, 3rd and 4th rib bone. Witness Suresh (PW 6) in his cross examination in para 10 has also admitted the fact that incident took place only for 5 minutes and thereafter when the witness Indersingh came there both the appellants ran away from the place of incident. Similar is the statement of alleged eye witness Indersingh (PW 9) who has also stated that he saw both the accused persons causing injury by means of lathi to the deceased. He immediately reached on the spot and asked the accused persons whether they would kill Babulal, on hearing this, both the accused persons ran away from the spot. This conduct of the accused persons itself shows that they had not intended to cause death of the deceased Babulal and only intended to cause injury to the deceased and because of this when witness Indersingh asked them they immediately ran away from the spot. 13. Similarly, this witness Indersingh in cross-examination in para 15 also proved the fact that both the accused persons were having lathi which was only 3-4 ft. in length. This circumstance has also clearly proved that both the accused persons are not having any prior intention to cause death of Babulal and they had without any intention caused injury to the deceased Babulal. Though, they may have knowledge that injury on chest may cause death of the deceased and in such circumstance, the appellants-accused can be held guilty for the offence punishable under section 304 Part-I of the IPC because they are having knowledge that by the act of causing injury by means of lathi on chest the death may occur but they had not intended to cause death of the deceased by the aforesaid act. 14. In similar circumstance, the Hon 'ble apex Court in Kalinder Bharik v. State of H.P., 2000 SCC (Cri) 96 held that "if injury sustained to the deceased is not found to be sufficient in ordinary course of nature to cause death and where death became the consequence because of excessive bleeding from the injury then case will come under fourth clause of section 300 of IPC punishable under section 304 part-2 of and not 302 of IPC". 15. 15. Similarly in another case reported in Sarwan Singh v. State of Punjab, 1978 CAR 323 (SC), the Hon'ble apex Court held that "the incident took place all of a sudden due to some previous dispute of land property. The intention of the accused are only to cause injury to the deceased. The injuries are also not found to be sufficient to cause death then conviction of the appellants is altered under section 304 Part-I from 302 of IPC". 16. Similarly in another case reported in Joseph v. State of Kerala, AIR 1994 SC 34 , the Hon'ble apex Court has held that "death is caused by injury sustained to the deceased by means of some wooden stick (bamboo) by the accused on head, the intention of the accused persons for causing death of the deceased is not made out. The conviction is altered under section 304 Part-II from 302 of IPC". 17. Considering the aforesaid principle laid down by the Hon'ble apex Court in the present case also it is apparent that none of the appellants-accused was having any intention to cause death. The incident took place all of a sudden. The allegation against the appellants are for causing injury by means of some bamboo stick on chest of the deceased. Other injuries are found to be simple abrasions which may be caused during scuffle in between the parties. In our considered opinion, the conviction under section 302 of IPC can be altered under section 304 part- I of IPC. 18. Other witnesses examined by the prosecution are Daulatram (PW 1) and Rekha Kushwah (PW 2) who are said to be eye witness of the incident but they came to know about the incident when alleged eye witness Indersingh (PW 9) came on the spot. Karansingh (PW 3) has not proved any fact against the appellants who has been declared hostile by the prosecution. Rajkumar Singh (PW 4) Police Constable proved that the counter part of the report was delivered to the Magistrate having jurisdiction to try the case. Natthu (PW 5) only proved the fact that injured Babulal was taken up to the hospital. Nahar Singh (PW 8) is the panch witness of the seizure memo Ex. P-9 and Ex. P-10. Omprakash (PW 10) is the investigating officer who registered the FIR Ex. P-3, prepared the spot map and inquest panchnama of the dead body. 19. Natthu (PW 5) only proved the fact that injured Babulal was taken up to the hospital. Nahar Singh (PW 8) is the panch witness of the seizure memo Ex. P-9 and Ex. P-10. Omprakash (PW 10) is the investigating officer who registered the FIR Ex. P-3, prepared the spot map and inquest panchnama of the dead body. 19. Thus, on overall re-appreciation of the entire evidence on record, in our considered opinion, the prosecution has proved the fact that both the appellants had caused injury to the deceased Babulal due to which he died but none of the appellants was having any intention to cause death of the deceased Babulal by causing aforesaid injury. Therefore, the conviction of the appellants under section 302 of IPC is erroneous and liable to be set-aside and they are held guilty for the offence punishable under section 304 Part-I of the IPC. 20. Resultantly, appeal preferred by the appellant is allowed in part. The conviction of the appellants under section 302/34 of IPC and sentence of imprisonment for life are set-aside and they are acquitted from the aforesaid charge. Instead thereof they both are held guilty under section 304 Part-I of IPC. 21. With regard to the sentence is concerned, the appellant Rakesh is in custody since 12.8.1998 and accused Sopatia is in custody since 16.8.1998 and completed more than 10 years jail sentence. Considering the aforesaid detention period both the appellants are sentenced to 11 years RI under section 304 Part-I read with 34 of IPC. 22. With the aforesaid modification in the conviction and sentence, the appeal stands disposed of.