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Madhya Pradesh High Court · body

2012 DIGILAW 1194 (MP)

Jagdish v. State of M. P.

2012-11-20

U.C.MAHESHWARI

body2012
JUDGMENT (Oral) 1. The appellant accused has preferred this appeal being aggrieved by the judgment dated 5.2.2000 passed by Sessions Judge Indore, in S.T. No.195/1997 whereby he has been convicted under section 307 of IPC with a direction to undergo for 6 months with fine of Rs.500/- and in default of depositing the fine further simple imprisonment for a period of one month has been awarded. 2. The fact giving rise to this appeal in short are that on dated 23.10.1996 at about 12:30 in the night some police official of Police Station Pardesipura Indore, has drawn up a DehatiNalishi at the instance of one Jayram, the brother of the victims against the appellant for the offence of section 307 of the IPC on which the original Crime No.515/1996 on the same day at the aforesaid police station was registered at about 1:30 in the night. As per averments of the Dehati Nalishi in the beginning part of aforesaid night at about 9 O’clock after taking the meals said complainants had gone to relax. At about 11 O’clock in the night from the house of his brother, Hemraj who is residing nearby he heard the shouting of some quarrel on which he went towards that side. He saw that Hemraj was crying and seeking help to save his life and the appellant Jagdish was standing there with scissor. At the same time with intention to cause death of Hemraj he gave a blow of such scissor on Hemraj by which he sustained injuries at the right side of the stomach. After sustaining such injuries Hemraj ran way to save himself then again a blow of scissor was given by the appellant on his back. He also gave the blows of such implement on the leg and thigh of said Hemraj. Immediately he went to Hemraj to save his life and saw that from the injury of stomach his intestine has come out and hanging. The huge blood has also been profussed then immediately he brought the towel (cloth) and did bandage of such injuries by such towel. Such a incident was also observed by various person of the locality from their own residence. Subsequent to the incident he with the assistance of one Bhim took the victim Hemraj to the M.Y. Hospital. The huge blood has also been profussed then immediately he brought the towel (cloth) and did bandage of such injuries by such towel. Such a incident was also observed by various person of the locality from their own residence. Subsequent to the incident he with the assistance of one Bhim took the victim Hemraj to the M.Y. Hospital. It is further stated that Jagdish was demanding money for liquor and Hemraj was not prepared to give the same. Consequently, the aforesaid blow of the scissors were given by the appellant on the victim with intention to cause his death. The name of Sumitrabai and Gulabbai the mother of the complainant is also stated as a witness of the incident. On reaching the victim to the Hospital his medical examination was carried out and MLC report was prepared. Looking to the nature of the injury, he was admitted in Hospital, his surgery was also carried out. According to the opinion of the doctor the injury sustained by the victim in his stomach was sufficient to cause death in ordinary course of the nature. After receiving such report and the papers of the bed head ticket and also on holding the investigation in the matter, the appellant was charge sheeted for the offence of section 307 of the IPC. 3. After committing the case to the Session Court on framing the charge of section 307 of the IPC against the appellant he abjured the guilt on which the trial was directed. After recording the evidence on appreciation of the same by holding the appellant guilty for such offence he was punished with the aforesaid punishment. On which the appellant has come to this Court with this appeal for extending the acquittal. 4. Shri S.C. Shrivastava, learned appearing counsel of the appellant after taking me through the record of the trial Court argued that on taking into consideration the deposition of the victim as well as the complainant Jairam as well as the other witnesses as accepted in its entirety even then the offence of section 307 of the IPC is not made out. He also said that the story put forth by the complainant and the victim is not supported by any independent source of the evidence. He also said that the story put forth by the complainant and the victim is not supported by any independent source of the evidence. He further argued that as per case of the prosecution on account of demand of some money by the appellant from his nephew the victim Hemraj, to purchase the liquor the incident was happened and in such premises, there was no any pre-preparation or intention of the appellant to cause any injury to the victim which is sufficient to cause death in the ordinary course of the nature. In continuation he said at the time of the incident appellant being aged 45 years was working as a Tailor and in such profession he was used to use the scissor as per requirement of his profession and at the spur of moment, the alleged incident without any premeditation only in sudden quarrel such incident had happened. So in such premises, this case could not be treated to be the case of section 307 of the IPC but actually it ought to have been treated by the trial Court under section 308 of the IPC and in such premises, the trial Court has committed the mistake in not extending the acquittal from section 307 of IPC. In any case it was not the case of conviction more than section 308 of the IPC and prayed for such modification on affirming the finding of the trial Court holding him guilty for alleged incident. Such modification is also prayed in the light of the different prosecution story stated at different stages. According to FIR the demand of money was made by the appellant for liquor while in the deposition of the Court such demand of money was made to pay the tax of the local authorities. So the question of demanding the money for liquor does not appear to be correct. According to FIR the demand of money was made by the appellant for liquor while in the deposition of the Court such demand of money was made to pay the tax of the local authorities. So the question of demanding the money for liquor does not appear to be correct. With these submissions firstly he said that after the aforesaid modification keeping in view that the appellant is a first offender did not possess any criminal antecedents in his life except the present case he be extended the benefit of Probation of the Offenders Act or in any case if the Court is not inclined to acquit him or does not found fit to extend the benefit of the probation then, by adopting some leniency, his awarded jail sentence be reduced from the period of 6 months to the period for which he has already undergone during trial between 29.10.1996 to 5.11.1996 i.e. 8 days, by enhancing the amount of fine under the discretion of the Court. 5. The aforesaid prayer is opposed by Shri R.S. Bais, learned Deputy Government Advocate saying that the impugned conviction and sentence of the appellant being based on proper appreciation of the evidence and in conformity with law do not require any interference at the stage of this appeal either for extending the acquittal or for modification of the offence as prayed by the appellant counsel or in any case for extending the benefit of the Probation of the Offenders Act or to reduce the awarded jail sentence and prayed for dismissal of this appeal. 6. Having heard the learned counsels keeping in view their arguments I have carefully gone through the record of the trial Court along with the impugned judgment. 7. It is undisputed fact on record that appellant is the uncle of the victim and their houses are situated nearby to each other and the family activities are also being carried out with the joint decisions of this victim and the appellant and also the other brothers of the victim. The victim Hemraj PW2 (since deceased) on recording his deposition stated that the alleged incident was happened on making the demand of the money to pay the tax of the local authority. He has not stated that such demand was made by the appellant for liquor as stated in the FIR. The victim Hemraj PW2 (since deceased) on recording his deposition stated that the alleged incident was happened on making the demand of the money to pay the tax of the local authority. He has not stated that such demand was made by the appellant for liquor as stated in the FIR. It also appears from the deposition of this victim that the incident was happened between him and the appellant during some discussion on some matter. In such premises, it could not be assumed that there was any premeditation or pre-planning in the mind of the appellant to cause any injury to the victim in the intention to cause his death. According to the deposition of victim on giving the reply by him to the appellant that he will not pay the sum of the taxes then suddenly the quarrel took place between them, in which in the hit of passion or provocation the appellant gave the blows of scissors on the person of his nephew i.e. victim Hemraj. True it is Hemraj has sustained such of the injuries in his stomach whereby his intestine has come out and at the time of medical examination the same was hanging out of the stomach. As per the medical jurisprudence this injury itself is sufficient to cause death of the human being in ordinary course of the nature and, therefore, this case is squarely covered with the spirit of the provision of section 299 of IPC wherein sections 307 and 308 of the IPC are also governed. The concerning doctor who prepared the MLC report of the victim Ex.P-4 by proving the same has categorically opined that the aforesaid injury of the stomach sustained by the victim was sufficient to cause his death in ordinary course of the nature, if the same was not treated within time. So in such premises, the approach of the trial Court holding that the aforesaid injury was sufficient to cause death of the victim in ordinary course of the nature could not be said to be contrary to any law or the medical jurisprudence. Hence, till this extent the findings of the trial Court is, hereby, up held. 8. The story put forth by victim Hemraj is also supported by the other alleged eye-witnesses his brother Jairam PW1. Hence, till this extent the findings of the trial Court is, hereby, up held. 8. The story put forth by victim Hemraj is also supported by the other alleged eye-witnesses his brother Jairam PW1. For the sake of arguments it could be said that the above mentioned witness and his brother are the interested witnesses because they are the real brothers but their testimony is further supported by the aforesaid doctor who found the corresponding injuries on the person of the victim and, therefore, mere on account of relationship of Jairam with the victim, his testimony could not be disbelieved and trial Court has not committed any error on relying on such testimony. 9. In the aforesaid premises, it is held that the appellant was rightly held to be responsible by the trial Court to commit the alleged incident and causing the aforesaid injuries to the victims. 10. Now I proceed to consider the question whether impugned conviction of the appellant under section 307 of IPC is sustainable or not in available scenario. It requires some modification or conversion from such section 307 to section 308 Part I or Part II of the IPC. In order to examine such position I would like to consider the matter in view of the provision of section 299 and section 300 of the IPC whereby sections 307 and 308 IPC are also governed. 11. It has been found to be proved that the victim sustained the aforesaid alleged injury on his stomach which was sufficient to cause his death in ordinary course of the nature. In such premises it is held that appellant committed the attempt to commit the culpable homicide defined under section 299 of IPC. Court has to consider whether such attempt to culpable homicide could be treated to be amounting attempt to murder or it could be treated to the attempt of culpable homicide not amounting to murder. The earlier part of section 300 provides the provision to hold the culpable homicide amounting to murder while the later part in which the 5 exception has been given gives the circumstance to hold that the alleged culpable homicide is not amounting to murder. 12. Keeping in view aforesaid provision on examining the case, it is apparent fact on record that the alleged incident was not caused by the appellant with any pre-preparation or premeditation or pre-planning. 12. Keeping in view aforesaid provision on examining the case, it is apparent fact on record that the alleged incident was not caused by the appellant with any pre-preparation or premeditation or pre-planning. Only on spur of moment on demanding the money by the appellant from his nephew the victim, he refused to give the same, then under such provocation the appellant picked up the scissor the implement of his profession and gave the blows of the same on the person of the victim Hemraj PW2 resultantly, he sustained the injuries. In such premises, keeping in view the entire deposition of the victim as well as of Jairam PW1, if the case is examined it could not be said that with intention to cause death of the victim, such injury was caused by the appellant. On the contrary keeping in view the Exception No.1 and the Exception No.4 of section 300 IPC if the case is examined then it is apparent that the case of the appellant was fully covered with such exceptions specially under Exception No.4. Before giving further finding in this regard I would like to reproduce Exception No.1 and Exception No.4 of section 300 of the IPC : “300. Exception 1 : When culpable homicide is not murder. -- Culpable homicide is not murder if the offender, whilst deprived of the power of self-control by grave and sudden provocation, causes the death of the person who gave the provocation or causes the death of any other person by mistake or accident. The above exception is subject to the following provisos : First. That the provocation is not sought or voluntarily provoked by the offender as an excuse for killing or doing harm to any person. Secondly. That the provocation is not given by anything done in obedience to the law, or by a public servant in the lawful exercise of the powers of such public servant. Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation : Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. Exception 4. Thirdly. That the provocation is not given by anything done in the lawful exercise of the right of private defence. Explanation : Whether the provocation was grave and sudden enough to prevent the offence from amounting to murder is a question of fact. 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 offender having taken undue advantage or acted in a cruel or unusual manner. Explanation : It is immaterial in such cases which party offers the provocation or commits the first assault.” 13. In view of the aforesaid provision, I am of the considered view that even on re-appreciation of the available evidence including the hostile testimonies of the victim Hemraj PW2 and the complainant Jairam PW1 and also the medical evidence and other circumstances this was not the case to hold the conviction under section 307 of the IPC but it was a case of holding the conviction under section 308 of the IPC. So in such premises, the trial Court has committed grave error, perversity, illegality and irregularity in holding guilty to the appellant under section 307 of IPC hence the conviction and sentence of the appellant under such section 307 of the IPC is, hereby, set aside. 14. Setting aside the conviction of the appellant under section 307 of the IPC does not mean that appellant is entitled for extending the acquittal. In view of the aforesaid discussion, the alleged act of the appellant comes under the category of the attempt to commit the offence of culpable homicide not amounting to murder defined under section 299 read with Exception No.1 and 4 of section 300 of the IPC and, therefore, in view the above mentioned injury of the victim and the available evidence the appellant is held guilty for the offence of section 308 Part II of the IPC. 15. Before considering the matter for imposition of punishment I would like to consider the question to extend the benefit of Probation of Offenders Act. True it is in the matter of section 308 IPC either Part I or Part II on availability of reasonable circumstances, the Court has authority to extend the benefit of the Probation of the Offenders Act. Before considering the matter for imposition of punishment I would like to consider the question to extend the benefit of Probation of Offenders Act. True it is in the matter of section 308 IPC either Part I or Part II on availability of reasonable circumstances, the Court has authority to extend the benefit of the Probation of the Offenders Act. It is also true that the appellant being a first offender is not having any criminal antecedents against him. But looking to the nature of the case and the manner in which it was committed by the appellant with his own nephew although under the provocation or in sudden quarrel I do not find fit to extend such benefit of probation to the appellant consequently, such prayer is hereby rejected. 16. Coming to consider the case to impose the punishment on the appellant for the offence of section 308 Part II of the IPC is concerned, the trial Court while imposing the sentence under section 307 of the IPC has categorically stated that during pendency of the case some compromise had taken place between the appellant and his nephew the victim. Some indication in this regard was also given by the victim Hemraj PW2 in his deposition and considering such aspect and also taking into consideration that the appellant being a first offender did not possess any other criminal history except the present case and also facing the mental agony of the case since last 16 years during this period he also appeared on various occasions before the trial Court as well as before this Court. Also taking into consideration that the appellant has suffered near about 8 days in jail during pendency of the trial. In all these circumstances, I do not find fit to send him again jail. Instead to it I deem fit to punish him with the jail sentence for which he has already undergone as stated above by imposition of some fine at higher side with a direction to give the same in equal share to Smt. Hemlata the daughter and Shri Hukumchand the son of the Hemraj, the victim (since deceased). Such direction has been given keeping in view the submission of the appellant counsel that during pendency of this appeal the victim Hemraj had passed away. 17. Such direction has been given keeping in view the submission of the appellant counsel that during pendency of this appeal the victim Hemraj had passed away. 17. In view of the aforesaid discussion, by allowing this appeal in part, the appellants conviction under section 307 of the IPC along with its awarded sentence is, hereby, set aside and instead it he is convicted under section 308 Part II of the IPC with the punishment of the jail sentence for the aforesaid period of 8 days which he has already suffered in trial Court but with fine of Rs.15,000/-. The amount of fine which was deposited by the appellant in connection of section 307 of the IPC shall be adjusted in the aforesaid fine amount. The remaining sum of the fine amount is to be deposited by the appellant within 3 months from today failing which, he has to suffer further 6 months rigorous imprisonment. 18. The trial Court is further directed that on depositing the aforesaid sum of the fine, the same be given in equal share to the aforesaid son and daughter of the deceased victim by calling them in the trial Court through summons. The appellant counsel is directed to supply the full name, address and particulars of such legal representatives of the victim enabling the Court to summon them. The appeal is allowed in part as indicated above.