Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 285 (MP)

Jagesiya @ Jagdish v. State of M. P.

2010-03-10

S.K.GANGELE, S.S.DWIVEDI

body2010
ORDER S.S. Dwivedi, J. -- 1. The appellant has preferred this criminal appeal under section 374 (2) of CrPC feeling aggrieved by the impugned judgment of conviction and sentence dated 3.8.2006 passed by second Additional Sessions Judge to the Court of First Additional Sessions Judge, Guna in Sessions Trial No. 369/05, whereby held the appellant/accused guilty for the offence under sections 302 and 323 of IPC and sentenced to imprisonment for life with fine of Rs. 500/- and 3 months RI, respectively. In default of payment of fine further ordered to suffer imprisonment for 6 months. Both the sentences are directed to run concurrently. 2. Briefly, stated facts of the case are that on 27.9.2005 complainant Ramsingh was in his field situated at village. Sirmoud. The cattle of one Dhansingh entered into the field of Ram singh. Complainant Ramsingh drove away the cattle from the field and also asked Dhansingh why he does not take proper care of cattle. Due to this, elder brother of Dhansingh, present appellant Jagdish carne on the spot and asked why he (complainant) is quarreling with Dhansingh. Thereafter, it is alleged that Jagdish had caused injury by means of stone to the complainant Ramsingh. When Bhavsingh, the brother of the complainant, tried to intervene, at that time, it is alleged that appellant/accused Jagdish had also caused injury to Bhavsingh by stone, due to which, Bhavsingh sustained injury and fell down on the ground. The matter had been reported to the Police Station Bamori, on which basis, police registered a case under section 307 of IPC, sent both the injured for medical examination where injured Bhavsingh died during treatment. Information in this regard was given to the police concerned, on which basis, police registered an inquest report and prepared inquest panchnama and issued a memo for postmortem examination of the dead body of the deceased Bhavsingh. Dr. N.K. Tentwar (PW-8) performed the postmortem of the dead body of Bhavsingh and found lacerated wound on the head and opined that due to head injury resulting coma which is the ultimate cause of his death and proved the postmortem report Ex. P/11. During investigation, spot map had been prepared, accused had been arrested by the police and after due investigation, charge sheet had been filed. 3. Appellant/accused abjured the guilt and his defence was of false implication in this case. P/11. During investigation, spot map had been prepared, accused had been arrested by the police and after due investigation, charge sheet had been filed. 3. Appellant/accused abjured the guilt and his defence was of false implication in this case. Learned trial Court after due appreciation of the entire prosecution evidence on record held the appellant/accused guilty for the offence, under section 302 and 323 of IPC and sentenced him as stated hereinabove, feeling aggrieved by which the appellant/accused has preferred this appeal. 4. Heard learned counsel for both the parties and perused the record and impugned judgment. 5. It is submitted on behalf of the appellant that as per the statement of injured prosecution witness it is apparent that incident took place all of a sudden because of some damage done by cattle of the accused party, the appellant/ accused came on the spot and allegation against him is for causing single injury by means of stone to the deceased Bhavsingh meaning thereby he was not having any intention to cause death of the deceased Bhavsingh and in such circumstances, if the whole prosecution story is believed then untimately the act of the appellant/accused would come within the purview of section 304 of IPC and not under section 302 of IPC as held by the trial Court. Therefore, in such circumstances, only prayer on behalf of the appellant is for alteration of conviction of the appellant from section 302 to 304 Part-II of IPC and just reduction of the jail sentence. 6. In reply, learned Public Prosecutor appearing for the State supported the impugned judgment and prayed for dismissal of the appeal. 7. To bring home the charge as levelled against the appellant, the prosecution has examined injured complainant Ramsingh who clearly stated that some quarrel took place because of the fact that some cattle of the brother of the accused entered into the field of complainant and when he scolded the brother of the accused, at that time, the appellant/accused Jagdish came there and threw stone on him. When his brother Bhavsingh tried to intervene, at that time, the appellant/accused had also caused injury to Bhavsingh by menas of stone on the head, due to injury on the head, his brother Bhavsingh died during treatment. He immediately reported the matter to the police station. The report is Ex. P/1. When his brother Bhavsingh tried to intervene, at that time, the appellant/accused had also caused injury to Bhavsingh by menas of stone on the head, due to injury on the head, his brother Bhavsingh died during treatment. He immediately reported the matter to the police station. The report is Ex. P/1. In detailed cross-examination of the aforesaid injured witness Ramsingh, nothing substantial came, on which basis, his statement given in the trial Court can be disbelieved. 8. Moreover, this witness is also an injured witness and his injury is also proved by the medical evidence namely by the statement of Dr. K.N. Tentwar who on examination of this witness Ramsingh founed two lacerated wounds, one on the left hand and, other on left side of the back and proved the report Ex. P/10. Further, the statement of this witness has got further support by the first information report Ex. P/1 wherein he specifically stated that it is the appellant/accused Jagdish who had caused injury by throwing stone on him as well as on his brother Bhavsingh. 9. Injury of Bhavsingh is also proved by same Dr. N.K. Tantwar (PW-8) and found one lacerated wound on the head of Bhavsingh and similar injury on the right side of cheek and opined that due to excessive hemorrhage due to head injury the deceased died and his death is homicidal in nature and proved the Post Mortem report Ex. P/11. 10. It is true that other alleged eye witnesses namely Reechhu (PW-3), Manojbai (PW-4), Sauka (PW-5), Suresh (PW-6), Monya @ Maniya (PW-7) and Bhuwan Singh (PW-0) have not supported the prosecution story and all these witnesses have been declared hostile by the prosecution but as discussed hereinabove, injured/complainant Ramsingh clearly stated against appellant and this has got further support by the promptly lodged first information report. In view of that, non-support of other eye witnesses, the appellant/accused will not get any benefit. 11. Thus, on the basis of aforesaid evidence on record it is proved that it is the appellant/accused who had caused simple injury to complainant Ramsingh and also to the deceased Bhavsingh. 12. Now, the question remains for consideration as to whether causing injury by throwing stone on the head of the deceased, the act of the accused will come within the purview of section 302 or 304 Part- I of IPC. 12. Now, the question remains for consideration as to whether causing injury by throwing stone on the head of the deceased, the act of the accused will come within the purview of section 302 or 304 Part- I of IPC. As discussed hereinabove, incident took place all of a sudden due to minor quarrel in between the parties because of damage done by the cattle belonging to the accused party. The appellant/accused came on the spot without any arm and picked up the stone from the spot itself and threw it. Under these, circumstances it is apparent that appellant/accused was not having any intention to cause death of Bhavsingh, though he may have the knowledge that by this act the death may be caused. In such circumstances, the act of the appellant/accused will come within the purview of section 304 Part-I of IPC and not under section 302 of IPC as held by the trial Court. For this proposition, reliance can be placed on the decision of the apex Court reported in Baijnath v. State of Uttar Pradesh (2008) 3 SCC (Cri) 940; wherein the Hon'ble apex Court in para 10 held here as under : "We find that Dr. Lalit Kumar (PW-6) who examined the dead body of the deceased for the purpose of post-mortem found the following ante-mortem injury." "Lacerated wound 1 cm x 0.5 cm front on interior part of right side scale, 10 cm above middle right eyebrow, wound is muscle deep." "Doctor's evidence clearly shows that there were fractures of both parietal and frontal bone. He opined that the cause of death was due to coma as a result of head injury. According to the appellant, the doctor admitted that the injury in question could have been sustained due to fall on the iron embedded in the earth. The evidence clearly established that the accused had given a lathi-blow on the head of the deceased. As rightly noted by the High Court the case is clearly covered under section 304 Part I IPC. Considering the nature of the injury and the weapon used clearly show the guilt of the accused. That being so, custodial sentenced of 7 years as imposed, does not suffer from any infirmity." 13. As rightly noted by the High Court the case is clearly covered under section 304 Part I IPC. Considering the nature of the injury and the weapon used clearly show the guilt of the accused. That being so, custodial sentenced of 7 years as imposed, does not suffer from any infirmity." 13. Thus, in view of the aforesaid principle laid down by the Hon'ble Apex Court, we are of the considered opinion that the act of the appellant for causing single injury to the deceased Bhavsingh will come under section 304 Part-I of IPC and not under section 302 of IPC as held by the trial Court. 14. Similarly, with regard to the conviction of the appellant under section 323 of IPC is concerned, as discussed hereinabove, it is proved that this appellant had also caused a simple injury to the complainant Ramsingh and this fact is fully proved by the prosecution. Therefore, the conviction of the appellant under section 323 of IPC and sentence of 3 months as awarded by the trial Court does not appears to be excessive. 15. Resultantly, appeal preferred by the appellant is allowed in part. The conviction of the appellant under section 323 of IPC and sentence of3 months RI as awarded by the trial Court is hereby affirmed but his conviction under section 302 of IPC and sentence of imprisonment for life is hereby set-aside and stead thereof, he is held guilty for the offence punishable under section 304 Part-I of IPC and sentenced to 7 years RI with fine of Rs. 500/-. In default of payment of fine, he will suffer imprisonment of 3 months. 16. With this modification, appeal stands disposed of.