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2012 DIGILAW 198 (MP)

Mangilal v. State of M. P.

2012-02-14

A.K.SHRIVASTAVA, S.R.WAGHMARE

body2012
JUDGMENT A.K. Shrivastava, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29.11.2011 passed by learned Sessions Judge, Dhar, Distt. Dhar in Sessions Trial No. 195/10 convicting the appellant under Section 302 IPC and directing to suffer life imprisonment and fine of Rs. 1,000/-; in default further RI of one month, this appeal has been preferred by the appellant under Section 374(2) Cr.P.C. 1973. 2. In brief, the case of the prosecution is that on 4.3.2010 at 3 p.m. Rahul lodged a report against appellant that he is residing along with his parents and grandmother in village Kushawada and is a labour. His grandparents has encroached upon the govt. land for last 40 years. This land was being cultivated by Bagdiram (hereinafter referred the deceased) and Shaitanbai. However, the appellant was claiming the land on the basis of patta granted in his favour by the State Govt. and he also filed a civil suit in that regard and therefore the appellant was keeping enmity with him. The deceased was the father of the complainant. 3. On the date of the incident appellant in order to allay his enmity, dealt the knife blow on the abdomen of the deceased as a result of which he fell down and appellant by taking of the knife from the abdominal region fled from the place of occurrence. On seeing the incident Ramchandra, Narayan, Anandilal and complainant Rahul caught hold the deceased and Kalu choukidwar tied a towel on the wound which was sustained by the deceased. Further it has stated that Ramchandra and Narayan brought the deceased on the motorcycle at Badnavar hospital and complainant Rahul along with Antarsingh went to police station on a motorcycle and lodged the report. 4. On lodging of the report, the criminal law was triggered and set in motion. The investigating agency sent the deceased who was alive and was in injured condition to Primary Health Center, Badnavar where he was examined by Dr. M.M. Upsani however later on the deceased was shifted to the Indore and while undergoing the treatment the deceased had died on 25.3.2010. 5. The case which was originally registered against the appellant was altered to Section 302 IPC. After the death of the deceased his dead body was sent for postmortem. 6. M.M. Upsani however later on the deceased was shifted to the Indore and while undergoing the treatment the deceased had died on 25.3.2010. 5. The case which was originally registered against the appellant was altered to Section 302 IPC. After the death of the deceased his dead body was sent for postmortem. 6. After the investigation was over, the charge-sheet was submitted in the committal Court which committed the case to the Court of Session where the appellant was tried for offence under Section 302 IPC. 7. The learned Trial Judge framed the charge under Section 302 IPC which appellant denied as a result of which the prosecution examined its witnesses and also proved the documents. The defence of the appellant is of false implication however in support of his defence he did not examine any witness. 8. The learned trial Judge on the basis of the evidence placed on record came to hold that charge under Section 302 IPC has been proved against the appellant and eventually convicted him and passed the sentence which we are mentioned herein above. 9. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 10. The contention of Shri Rathi learned Counsel for the appellant is that from the evidence it is not proved that the appellant has committed the offence under Section 302 IPC and therefore he be acquitted. An alternative submission has also been put forth by him that because the deceased had died after 21 days of the incident on 25.3.2010 on account of complications which arose during the long treatment, therefore at the most the case would come within the ambit and scope of Section 326 IPC and therefore necessary sentence be awarded. 11. On the other hand Shri Yadav, learned Public Prosecutor has argued in support of the impugned judgment and has submitted that the appeal deserves to be dismissed. 12. Having heard learned Counsel for the parties we are of the considered view that this appeal deserves to be allowed in part. 13. In the present case the prosecution has examined complainant Rahul (P.W.1), Anandilal (P.W.2), Narayan (P.W.3) and Indersingh (P.W.4) as eyewitnesses. 12. Having heard learned Counsel for the parties we are of the considered view that this appeal deserves to be allowed in part. 13. In the present case the prosecution has examined complainant Rahul (P.W.1), Anandilal (P.W.2), Narayan (P.W.3) and Indersingh (P.W.4) as eyewitnesses. In the same voice all the eyewitnesses are saying that appellant came and dealt the blow of knife on the person of the deceased as a result of which he fell down and he was brought to the hospital by Anandilal and Narain while the complainant Rahul (P.W.1) went to lodge the report. From their testimony it is also proved that from Primary Health Center at Badnavar looking to the serious condition of the deceased he was shifted to Indore where ultimately he died after 21 days on 25.3.2010. These eyewitness were cross-examined at length but nothing has been carved out from their testimony in order to disbelieve them or to hold that appellant did not cause any injury to the deceased on his abdominal region by knife. Judging from all the angles we find that the testimony of eyewitnesses is clear, cogent and trustworthy. 14. The testimony of the eyewitnesses is corroborated by the testimony of MLC doctor M.M. Upasani (P.W.7) who found one incised wound on the abdominal region of the deceased admeasuring 2½” x 1 cm x 2 cm. This witness has also proved the MLC report of the deceased Ex.P/6. 15. On bare perusal of the testimony of the autopsy surgeon doctor Bharat Prakash (P.W.12) and the postmortem report Ex.P/13 we find that the deceased sustained following injuries : Surgical intervention - Vertical Surgery scar with Syntheses mark from xiphisternum to below umbilicus, 22 cm length from to right to umbilicus, vertical, at upper end (xiphisternum). It is extended left 5 cm 42. Healed ICC scar on below lateral mid chest. Left lobe of liver wound 6 x 1 x 3 cm deep are inferior surface. Little pus collection point, abdominal cavity come 300 ml. reddish fluid. Healed draw wound on right lower abdomen. Infected wound 6 x 4 x ½ cm on mid lower back. Scar are within 2 to 4 wks. prior to death. Liver wound from left lobe inferior surface three loose stitches present. According to the autopsy surgeon the deceased had died on account of infection in the liver. reddish fluid. Healed draw wound on right lower abdomen. Infected wound 6 x 4 x ½ cm on mid lower back. Scar are within 2 to 4 wks. prior to death. Liver wound from left lobe inferior surface three loose stitches present. According to the autopsy surgeon the deceased had died on account of infection in the liver. Specially the autopsy surgeon is saying in examination-in-chief that the pus was found in the liver and thus according to the autopsy surgeon the deceased had died on account of complications arose during the treatment in the liver. 16. By placing reliance on the decision of the Supreme Court B.N. Kavatakar and another Versus State of Karnataka 1994 Supp (1) SCC 304 it has been contended by learned Counsel that because the deceased had died after 21 days of the incident and the death has occurred on account of complications as the pus was found in the liver therefore the case rest under Section 326 IPC and the Supreme Court passed the jail sentence of 3 years RI. 17. On bare perusal of the testimony of the autopsy surgeon we find that the deceased had died on account of complications in the liver as the pus was found in the liver and the deceased had died after 21 days of the incident therefore the appellant has committed the offence under Section 326 IPC and is hereby sentenced to suffer RI of 3 years. However, the amount of fine Rs. 1,000/- imposed by learned Trial Court is enhanced to Rs. 1,00,000/- (Rs. One Lac), which the appellant shall deposit it in the Trial Court; failing which the appellant shall further undergo a jail sentence of 3 years. Let the entire amount of fine of Rs. 1,00,000/- (Rs. One Lac) be paid to the Class-1 heirs of the deceased mentioned in the schedule to Section 8 of the Hindu Succession Act, 1956. On bare perusal of the record of the Trial Court it is gathered that appellant is in custody since 13.3.2010 and is undergoing the sentence, he should suffer the actual jail sentence of 3 years and no remission for these three years be provided to him. In case appellant deposits Rs. 1,00,000/- (Rs. One Lac) in the trial Court he shall be released after undergoing the jail sentence of three years. In case appellant deposits Rs. 1,00,000/- (Rs. One Lac) in the trial Court he shall be released after undergoing the jail sentence of three years. But in case within that period if he fails to deposit Rs. 1,00,000/- (Rs. One Lac), he shall further undergo a jail sentence of three years RI. 18. The Principal Registrar of this Bench is hereby directed to send the record post-haste to the learned trial Court so as to reach that Court prior to 13th March 2012. The Trial Court shall take up the matter on this date and fix a date not beyond a fortnight and will direct the Jail Authorities to send the appellant on the date fixed and thereafter dates may be given according to the convenience of the appellant; so that the amount of fine be deposited. The Trial Court shall also make an enquiry in this regard that who are the Class-1 heirs of the deceased and thereafter disburse the entire amount of compensation equally amongst them. 19. For the reasons stated this appeal succeeds in part with the aforesaid modifications in the sentence.