Research › Search › Judgment

Madhya Pradesh High Court · body

2010 DIGILAW 537 (MP)

RAJKUMAR v. STATE OF MP.

2010-05-11

S.K.GANGELE, S.S.DWIVEDI

body2010
Judgment S.S.Dwivedi, J. ( 1. ) The judgment in this appeal shall also govern the disposal of connected Criminal Appeal No.34/1999 (Murari vs. State of Madhya Pradesh). As both the appeals have been preferred against the common impugned judgment, hence they are being decided by this judgment. ( 2. ) The aforesaid two appeals have been preferred by the respective appellants under Section 374(2) of the Code of Criminal Procedure, aggrieved by the judgment of conviction and sentence dated 28.11.1998 passed by Eighth Additional Sessions Judge, Gwalior, in Sessions Trial No.9/97 whereby held all the four appellants guilty for the offence punishable under Sections 302/34 and 323/ 34 of Indian Penal Code and sentenced each of them to imprisonment for life and fine of Rs.200/- respectively on each. In default of payment of fine, further ordered to suffer imprisonment for one month. ( 3. ) Briefly stated the facts of the case are, on 2.10.1996 at about 3.00 p.m. at Shivaji Nagar, Kumharpura, Morar some quarrel took place near the house of one Ganesh Munshi in between appellant/accused Khaddi @ Pappu @Hargovind and Khemchand. The accused Khaddi had slapped Khemchand, thereafter Kalicharan and Chhotu also came there, then accused Khaddi armed with a sword and other accused persons namely Murari, Mahendra and Rajkumar armed with lathi and one wooden pati came there and accused Khaddi @ Pappu @ Hargovind tried to cause injury by means of sword to Chhotu. Deceased Chhotu @ Laxminarayan caught hold the sword concerned, due to which he sustained injury on the fingers of the left hand then the accused Murari caused injury by means of wooden pati on the head of Chhotu and thereafter accused persons ran away from the spot. Due to the head injury Chhotu fell down on the spot and became unconscious. Witness Khemchand, Kalicharan came there and took the injured Chhotu to Police Station Morar, thereafter FIR had been lodged, on which basis the Police registered the case; sent the injured Chhotu to J.A.Hospital, Gwalior for necessary treatment. During treatment in the night at about 9.00 pm Chhotu died in the hospital. The information had been given to the police, on which basis the police prepared the inquest panchnama of the deadbody and issued memo for post-mortem examination and altered the case under section 302 IPC. During treatment in the night at about 9.00 pm Chhotu died in the hospital. The information had been given to the police, on which basis the police prepared the inquest panchnama of the deadbody and issued memo for post-mortem examination and altered the case under section 302 IPC. The Investigating Officer prepared the spot map, recorded the statements of the witnesses, arrested the accused persons, also seized the weapons used by them in this incident and after due investigation the charge sheet had been filed. ( 4. ) All the four appellants/accused abjured the guilt and their defence is of false implication in this case. The learned trial Court after due appreciation of the entire evidence on record held all the four appellants/accused guilty for the offence punishable under Sections 302/34 and 323/34 of IPC and sentenced each of them as stated herein above; aggrieved by which the appellants have preferred these two appeals. ( 5. ) Having heard the learned counsel for the appellants as well as learned Public Prosecutor appearing for the State and perused the record. ( 6. ) It is submitted on behalf of the appellants that as per statement of the alleged eyewitness Suresh, the only allegation is against Khaddi @. Pappu that he had caused an injury by means of a sword on the fingers of the left hand of deceased Chhotu @ Laxminarayan; thereafter allegation against second accused Murari is that he had caused single injury by means of wooden pati on the head of the deceased Chhotu @ Laxminarayan. The only allegation against these two accused persons is for causing a single injury by each of them to the deceased and, in such circumstances, it is apparent that the incident tookplace all of a sudden due to some minor quarrel in between the accused Khaddi and Khemchand. Both the accused persons were not having any intention to cause death of deceased Chhotu @ Laxminarayan, therefore, for causing single injury by each of them at the most they can be held guilty for the offence punishable under section 304 of IPC and not under section 302 of IPC as held by the trial court. Similarly, it is also submitted that the involvement of remaining accused Mahendra and Rajkumar has not been proved on the basis of the evidence on record and the learned trial court. Similarly, it is also submitted that the involvement of remaining accused Mahendra and Rajkumar has not been proved on the basis of the evidence on record and the learned trial court. has wrongly held them guilty for the aforesaid offence. Therefore, prayed for setting aside of the part of the judgment to the extent of appellant Mahendra S/o Babulal and Rajkumar S/o Tularam. With regard to the punishment under section 304 IPC is concerned, it is submitted that accused Murari remain in jail for near about 8 years and the accused Khaddi @ Pappu also remained in jail for more than four years. Therefore, prayed for just reduction of the jail sentence to the custodial period of these two appellants. ( 7. ) In reply, learned Public Prosecutor for the State supported the impugned judgment and prayed for dismissal of the appeals. ( 8. ) To bring home the charge as levelled against the appellants, the prosecution had examined Suresh (PW1), the alleged eyewitness of the incident, who clearly stated that some quarrel took place in between Khaddi and Khemchand. In that quarrel accused Khaddi had slapped Khemchand then the deceased Laxminarayan came out from his house and tried to intervene in the incident, at that time Khaddi had caused an injury by means of sword to Laxminarayan, due to which Laxminarayan sustained injury on the fingers of the left hand, thereafter the accused Murari had caused a single injury on the head of Laxminarayan by means of wooden pati, then Laxminarayan fell down on the ground and became unconscious; thereafter when they reached on the spot then all the accused persons ran away from the spot. From perusal of the aforesaid statement of Suresh it is apparent that actual quarrel took place in between Khaddi and Khemchand and when Laxminarayan tried to intervene, at that time Khaddi had caused a single injury by means of sword to Laxminarayan deceased and then accused Murari had caused another single injury on the head of Laxminarayan and they had not repeated any below to the deceased Laxminarayan. In view of the aforesaid specific statement of this witness Suresh, firstly it is proved that the initial quarrel had not taken place in between deceased Laxminarayan and accused Khaddi. In view of the aforesaid specific statement of this witness Suresh, firstly it is proved that the initial quarrel had not taken place in between deceased Laxminarayan and accused Khaddi. The accused Khaddi only inflicted the injury on Laxminarayan when he tried to intervene in the incident took place in between Khaddi and Khemchand, therefore, the intention of the accused persons for causing death of deceased Laxminarayan cannot be found proved apparently. ( 9. ) Similar is the statement of Ramratan (PW4) that the quarrel took place firstly with Khaddi and Khemchand, thereafter Khaddi had caused injury to Laxminarayan by means of sword on the fingers of the left hand and then Murari had caused single injury on the head of Laxminarayan by means of some wooden piece. In the aforesaid statement also Ramratan had not stated that any of the accused had repeated any below on the deceased Laxminarayan. ( 10. ) The medical evidence - statement of Dr. MadhupKumar (PW3), who performed the post-mortem of the dead body of deceased Laxminarayan is also to the same effect that the deceased sustained lacerated wound on the head, due to which the excessive hemorrhage was found on the head, which is the ultimate result of his death and proved the post-mortem report Ex.P/7. ( 11. ) Thus on perusal of the aforesaid statement of alleged eyewitness Suresh (PW1) and Ramratan (PW4) it is found proved that both the accused persons had caused single injury to the deceased Laxminarayan and actual incident has also not started with the deceased Laxminarayan and, in such circumstances, we are of the considered opinion that none of the accused namely Khaddi and Murari was having any intention to cause death of deceased Laxminarayan. Therefore, their act for causing single injury to the deceased comes within the exception 4 of Section 300 of IPC which reads here as under:- "Exception 4- Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offenders having taken undue advantage or acted in cruel or unusual manner. Explanation- it is immaterial in such cases which party offers the provocation or commits the first assault." ( 12. Explanation- it is immaterial in such cases which party offers the provocation or commits the first assault." ( 12. ) If the act of the accused by causing a single blow to the deceased takes place ail of a sudden without any pre-intention, then the case will come under Section 304 Part II of IPC, for that a reliance can be placed in the case of Chinnathaman Vs. State represented by Inspector of Police, reported in (2007) 14 SCC 690 , wherein the Honble Apex Court in paragraphs 13 and 14 has held as under:- "13. It is not the case of the prosecution that the appellant had acted cruelly, in the sense that he had delivered successive blows to the deceased. There was sufficient time and opportunity to the appellant to give repeated blows. It is not the case of the prosecution that the appellant wanted to deliver other blows and that he was prevented from doing so by any person. So there is reasonable ground to believe that after giving the blow the appellant had stopped and not acted cruelly. As noticed earlier, the appellant was doing his work and was not waiting for the deceased to come. On the facts and in the circumstances of the case, this Court is of the opinion that Exception 1 to Section 300 IPC would apply to the facts of the case and the offence committed by the appellant would be one punishable under Section 304 IPC. There is nothing on record to indicate that the appellant had committed culpable homicide amounting to murder by causing death of the deceased with the intention of causing death of the deceased or of causing such bodily injury as was likely to cause his death. Therefore, the provisions of Part II of Section 304 IPC would apply to the facts of the case on hand. Thus, the appeal will have to be allowed by converting the conviction of the appellant under Section 302 IPC to one punishable under Section 304 Part II IPC. 14. This Court has considered the submissions advanced at the Bar for the purpose of imposition of sentence on the appellant for commission of offence punishable under Section 304 Part II IPC. Thus, the appeal will have to be allowed by converting the conviction of the appellant under Section 302 IPC to one punishable under Section 304 Part II IPC. 14. This Court has considered the submissions advanced at the Bar for the purpose of imposition of sentence on the appellant for commission of offence punishable under Section 304 Part II IPC. As held earlier, there was no premeditation or pre-plan on the part of the appellant to cause death of the deceased and the occurrence had taken place when the deceased with another had entered the field of the appellant and engaged himself in an altercation with the appellant, when the appellant had refused to part with bitter gourd. Having regard to the attending circumstances in which the incident had taken place, this Court is of the opinion that the interest of justice would be served if the appellant is sentenced to rigorous imprisonment for five years for commission of offence punishable under Section 304 Part II IPC." ( 13. ) As discussed herein above, on perusal of the statement of Suresh (PW1) and Ramratan (PW4), the involvement of remaining appellants namely Rajkumar and Mahendra is not proved beyond reasonable doubt that they had also caused any injury to the deceased Laxminarayan, therefore, only on the basis of then- presence on the spot their common intention for causing any injury to the deceased Laxminarayan cannot be inferred. Therefore, the conviction of these two . appellants by the trial court is found to be erroneous and is liable to be set aside. ( 14. ) With regard to sentence under section 304 Part II of IPC to appellants Murari and Khaddi @ Laxminarayan is concerned, admittedly appellant Murari remained in custody as per record for near about eight years; similarly, appellant Khaddi @ Laxminarayan also remained in custody for more than four years. Considering the part taken by them in the incident, in our considered view, for the offence punishable under section 304 Part II of IPC the custodial period of these two appellants appears to be the sufficient sentence for the alleged offence under section 304 Part II of IPC. ( 15. ) Consequently, both the appeals are disposed of in the manner indicated below:- (1) Criminal Appeal No. 647/1998 allowed in part. The conviction of appellant no.1-Rajkumar and appellant no.2. ( 15. ) Consequently, both the appeals are disposed of in the manner indicated below:- (1) Criminal Appeal No. 647/1998 allowed in part. The conviction of appellant no.1-Rajkumar and appellant no.2. Mahendra under sections 302/34 and 323/34 of IPC and sentence thereof as awarded by the trial court are set aside and both these appellants Rajkumar and Mahendra are acquitted from the aforesaid charges. They are on bail, their bail bonds shall stand discharged forthwith. (ii) Similarly, the appeal of appellant no.3-Khaddi @ Pappu @ Hargovind (Cri.Appeal No.647/98) and Criminal Appeal No.34/ 99 preferred by appellant Murari s/o Ghanshyam allowed in part. Their conviction under section 302/34 of IPC and sentence of imprisonment for life is set aside and instead thereof both these appellants are held guilty for the offence punishable under section 304 Part II read with section 34 of IPC and sentenced to the period already undergone by the appellants in jail (appellant Murari remained in jail for near about eight years and appellant Khaddi remained in jail for more than four years). Appellants Murari and Khaddi are also on bail, their bail bonds shall stand discharged forthwith. (iii) Conviction of the appellants under section 323 read with section 34 of IPC is also set aside and all the four appellants are acquitted from the aforesaid charges. Appeal disposed of.