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Madhya Pradesh High Court · body

2009 DIGILAW 553 (MP)

Ashok v. State of M. P.

2009-04-27

S.A.NAQVI, S.L.KOCHAR

body2009
JUDGMENT Kochar, J. -- 1. The appellant has preferred this appeal against the judgment and order dated 4.11.09 passed in Special Case No. 6/99 by the Special Judge, Jhabua whereby convicted the appellant under Section 354 of the IPC read with Section 3 (i) (xi) of the Scheduled Caste and Scheduled Tribes (Prevention of Atrocities) Act, 1989 and sentenced him to undergo two years RI and under Section 302 of the IPC, sentenced for imprisonment of life with fine of Rs. 10,000/- in default of payment of fine 3 years rigorous imprisonment. 2. According to the prosecution case on 7.2.93 in the noon at 2.00 p.m., prosecutrix (PW -1), Mangudi Bai reached at the house of the appellant along with four years old son Shankar and demanded loan amount of Rs. 5,100/- as well as her silver kardhani from the father of the appellant. Mangudi Bai (PW-1) advanced the loan, after withdrawing the cash amount from the bank, @ 3% interest per month. It is said that the appellant and other co-accused cheated Mangudi Bai and when she demanded her money, the appellant threw her son on the ground and also beat her. It is also alleged that the appellant molested the modesty of Mangudi Bai. Mangudi Bai lodged the written report Exhibit P-l in the Sarangi Out-post of Police Station Etalwar Dist-Jhabua in the evening at 5:00 p.m. On the basis of the written report, a report was recorded in daily diary at Serial No. 244 on 7.2.93. Son of the complainant, Shankar was sent for medical examination to Small Primary Health Centre, Sarangi and the doctor after examination immediately referred him to Primary Health Centre, Petlawad who on examination declared him dead. Mangudi Bai again gave intimation to the police of police station, Petlawad about the death of Shankar on the basis of which merg, intimation report Exhibit P-17/C was recorded and police stepped into investigation. Dead body of the deceased was sent for autopsy and the same was performed by Dr. Pushpendra Sharma (PW-13) who also issued post-mortem report Exhibit P-7, Rakesh Kumar Nain (PW-14), the Investigating Officer, prepared the inquest report and recorded the statement of prosecution witnesses acquainted with the facts. Dead body of the deceased was sent for autopsy and the same was performed by Dr. Pushpendra Sharma (PW-13) who also issued post-mortem report Exhibit P-7, Rakesh Kumar Nain (PW-14), the Investigating Officer, prepared the inquest report and recorded the statement of prosecution witnesses acquainted with the facts. On completion of investigation, charge-sheet was filed against the four accused under Section 420, 354 & 302 of the IPC and under Section 3 (ii) (v) as well as under Section 3 (i) (xi) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989. 3. Accused abjured their guilt and submitted that Mangudi Bai (PW-l) took up quarrel with the appellant Ashok and caused injury by tooth bite at his abdomen. Ashok lodged report Exhibit D-2C in the police station and police got him medic allay examined by Dr. Y.N. Dubey (DW-1) who issued MLC report Exhibit D-5. Accused examined two defence witnesses whereas prosecution has examined in all fourteen witnesses and adduced 17 documents in evidence to prove its case. Learned Trial Court while acquitting other three accused, convicted and sentenced the appellant as mentioned herein above. 4. We have heard the learned counsel for the appellant and also perused the entire record carefully. It is borne out from the record that the conviction of the appellant is based on the testimony of the eye-witnesses, Mangudi Bai(PW-l), Shyamlal (PW-2), Rajmal (PW-3) and medical evidence of A.S. Multai (PW-9) as well as Dr. Pushpendra Sharma (PW-13). The learned Trial Court also placed reliance on the testimony of investigating officer and other witnesses for the purpose of proving steps taken during the course of investigation for collecting evidence. 5. Learned counsel for the appellant submitted that in view of the statement of Dr. Pushpendra Sharma (PW-13), the deceased was suffering from hydrocephalus and because of which his head was bigger than the normal boy. He had also given the circumference of the head in his post-mortem report Exhibit P-7. It is also submitted that the appellant was not having any intention to commit murder of the boy and it appears that there was a quarrel between Mangudi Bai (PW-1) and the appellant. He had also given the circumference of the head in his post-mortem report Exhibit P-7. It is also submitted that the appellant was not having any intention to commit murder of the boy and it appears that there was a quarrel between Mangudi Bai (PW-1) and the appellant. During the course of quarrel, the boy fell down on the ground or even thrown by the appellant on the ground, the appellant was not having any intention to commit his murder and at the most he would be liable for punishment under Section 325 of the IPC. 6. Learned counsel for the State has supported the impugned judgment and finding of the learned Trial Court. 7. The only question canvassed before us is whether the appellant would be liable for punishment under Section 302 of the IPC and other offences or under Section 325 of the IPC. It is admitted position that the appellant and Mangudi Bai (PW-I) were not having previolis enmity and the incident occurred all of a sudden when Mangudi Bai reached at the house of the appellant with her son for demanding loan amount. Father of the appellant, Goverdhan requested Mangudi Bai (PW-I) that he will return the amount after some days, but she was insisting upon immediate return of the amount. At that moment, the appellant tried to get rid of the complainant, Mangudi Bai (PW-1). The appellant had also lodged the report first in point of time as per Exhibit D-2C proved by Bhaswar Singh (DW-2) in which he has narrated the quarrel and levelled entire allegations against Mangudi Bai (PW-1). He was also sent for medical examination and examined by Dr. V.N. Dubey (DW-1) who also proved MLC report Exhibit D-5. Dr. V.N. Dubey found several injuries on the person of the appellant which were simple in nature. From the complaint lodged by Mangudi Bai and the appellant, it appears that the place, date and time of the incident is same and both have not explained the injuries sustained by opposite parties. Dr. A.S. Multani (PW9) who attended the deceased, Shankar first in point of time did not find any external injury but looking to his condition, referred him immediately to bigger hospital. He proved the MLC report Exhibit P-5. 8. Dr. Pushpendra Sharma (PW-13) also did not find any external injury on the person of the deceased in post-mortem examination. Dr. A.S. Multani (PW9) who attended the deceased, Shankar first in point of time did not find any external injury but looking to his condition, referred him immediately to bigger hospital. He proved the MLC report Exhibit P-5. 8. Dr. Pushpendra Sharma (PW-13) also did not find any external injury on the person of the deceased in post-mortem examination. Deceased even did not suffer any fracture of skull bone, but underneath the skull bone there was haematoma and damage in the brain membrane which resulted into his death. Dr. Sharma proved the post-mortem report Exhibit P-7. He has nowhere opined that the injury was sufficient in the ordinary course of nature to cause death. Looking to the totality of the circumstances, when the appellant was not having any motive and quarrel occurred on the spur of moment in which he threw the child on the ground to get rid of Mangudi Bai, it could not be said that he had intention to commit murder of the boy or he was having knowledge that because of his act there was every possibility of death of the child. Though, Dr. Sharma has denied any kind of contribution in death of deceased by enlarged skull of the deceased but looking to the enlargement area of the skull, the possibility of sustaining internal damage could not be ruled out. In this situation, in our opinion, the appellant at the most would be liable for punishment for causing grievous injury under Section 325 of the IPC. The appellant did not use any weapon for causing injury to the deceased but in view of Dr. Sharma, there was damage to internal brain membrane and haematoma, therefore, the injury of the deceased would fall under Section 320 sub-section 8 of the IPC, endangering the life of the deceased. 9. The conviction of the appellant under Section 354 of the IPC read with Section 3 (i) (xi) of Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989 is also not sustainable because the appellant intentionally did not molest the modesty of Mangudi Bai (PW-l), his intention was to get rid of Mangudi Bai somehow or the other and Mangudi Bai nowhere stated that the appellant molested her modesty and she felt dishonoured or bad among the public when her body was touched by the appellant. The force used by the appellant against Mangudi Bai would make him liable only for offence punishable under Section 323 of the IPC. 10. In the result, this appeal is allowed in part. Conviction and sentence of the appellant on all the count, passed by the learned Trial Court is hereby set aside instead thereof he is convicted under Section 325 and 323 of the IPC. On the question of sentence, learned counsel for the appellant has submitted that the appellant is facing this prosecution since 16 years. At the time of incident, the appellant was aged 24 years and now he is 40 years of age having responsibility of entire family consisting of wife, old parents and major daughters of marriageable age. On all these grounds, learned counsel has prayed for imposition of sentence already undergone with fine. 11. On the question of sentence, we find substance in the arguments of the learned counsel that now no useful purpose will be served to State, Society or Public at large, if the appellant is sent to jail for some time. For Section 325 of the IPC, minimum jail sentence is not prescribed and for Section 323 of the IPC, jail sentence is not mandatory, therefore, we sentence the appellant in both counts to the period already undergo (three months) and fine of Rs. 15,000/- for the offence under Section 325 of the IPC and Rs. 1,000/- under Section 323 of the IPC, in default of payment of fine, the appellant shall undergo sentence of 1-1/2 years rigorous imprisonment under Section 325 of the IPC and one month rigorous imprisonment in default of fine of Rs. 1,000/- under Section 323 of the IPC. On realisation of the fine amount, Rs. 13,000/- be paid as compensation to Mangudi Bai (PW-l), mother of the deceased, if alive and if she is not alive, to the legal representatives of the deceased. Learned counsel for the appellant submitted that the appellant has already deposited the fine amount of Rs. 10,000/-, if it be so, the appellant is directed to appear before the Trial Court on 28.7.09 and deposit the remaining fine amount. On failure to appear on a given date by the appellant, the learned Trial Court is directed to take suitable legal action against him as well as his surety under intimation to this Court. 10,000/-, if it be so, the appellant is directed to appear before the Trial Court on 28.7.09 and deposit the remaining fine amount. On failure to appear on a given date by the appellant, the learned Trial Court is directed to take suitable legal action against him as well as his surety under intimation to this Court. Office is directed to send the copy of the judgment with record immediately to the Trial Court for compliance.