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2012 DIGILAW 742 (MP)

Shivpratap Singh v. State of M. P.

2012-07-24

A.K.SHRIVASTAVA, BRIJ KISHORE DUBE

body2012
JUDGMENT Shrivastava, J. -- 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 29.9.1998 passed by learned First Additional Sessions Judge, Bhind in Sessions Trial No.93/1997 convicting appellant for the offence punishable under section 302 of IPC and thereby sentencing him to suffer life imprisonment, this appeal has been preferred by the appellant under section 374(2) of the Code of Criminal Procedure, 1973. 2. Indeed four persons including present appellant Shivpratap were tried before the learned trial Court. Except appellant Shivpratap, other acquitted accused persons namely Ran Singh, Sushila Bai and Seema alias Bitto were tried for offence punishable under sections 302/34, 323/34 (two counts) of IPC while appellant Shivpratap was charged for offence punishable under sections 302, 323/34 and 325/34 of IPC. Learned trial Court acquitted the accused persons Ran Singh, Sushila Bai and Seema from all the charges by the impugned judgment. No State appeal has been filed against judgment of their acquittal. 3. The facts necessary for the disposal of this appeal lie in a narrow compass. Suffice it to say that as per case of the prosecution on 25.8.1996 at 6:30 p.m. the author of FIR Ummed Singh was in his house, at that juncture, he heard some hue and cry, which was coming from his field behind his house, as a result of which he rushed towards the field and saw that appellant was carrying ballam while other accused persons were carrying lathi and farsa and were causing injuries to his brother Parwat Singh (deceased). On seeing the incident, author of FIR Ummed Singh, his father Harchand and uncle Jagram rushed to intervene but by that time appellant already inflicted ballam blow on abdominal region of deceased, as a result of which he fell down and thereafter all the accused persons dealt lathi blows upon him. It is said that acquitted accused Sushila dealt farsa blow to the deceased and when Ummed Singh and Jagram tried to intervene they also sustained injuries which were caused by accused persons. Ummed Singh sustained injury on his head, back and leg while Jagram received injuries on his legs. During the course of incident, mother of Ummed Singh namely Phool Kunwar, sister Guddi and younger brother Indrapal Singh also arrived at the spot. The accused persons after causing injuries to deceased and injured, fled from the place of occurrence. Ummed Singh sustained injury on his head, back and leg while Jagram received injuries on his legs. During the course of incident, mother of Ummed Singh namely Phool Kunwar, sister Guddi and younger brother Indrapal Singh also arrived at the spot. The accused persons after causing injuries to deceased and injured, fled from the place of occurrence. The matter was reported by Ummed Singh in the police station on the same day on 25.8.1996 at 11:15 p.m. 4. On lodging of the FIR, the criminal law was triggered and set in motion. The investigating agency prepared the spot map; recorded the statement of witnesses; sent the dead body of deceased for post-mortem and also sent injured persons for their treatment as well as for obtaining their MLC report. 5. After the investigation was over, a charge-sheet was submitted in the committal Court which committed the case to the Court of Session from where it was received by the trial Court for trial. 6. The learned trial Judge on the basis of allegations made in the charge-sheet, framed charges punishable under 302, 323/34 and 325/34 IPC against the appellant while other co-accused persons were charged under sections 302, 323/34 (two counts) of IPC. Needless to say that accused persons abjured their guilt and pleaded complete innocence. 7. In order to bring home the charges against the appellant, the prosecution examined as many as 15 witnesses and placed Ex.P-1 to P-17 the documents on record. The defence of the appellant is that complainant party was aggressor and as a matter of fact members of complainant party attacked upon the accused persons as a result of which they sustained serious injuries. According to the defence, acquitted co-accused Ran Singh sustained five injuries including fracture of meta carpal bone. According to learned counsel, genesis of occurrence has been suppressed by the prosecution and therefore looking to the injuries sustained by acquitted co-accused Ran Singh including fracture of his meta carpal bone at the most case would rest within the purview of section 304 (Part II) IPC because there was no intention of the appellant to kill the deceased. In support of his defence, appellant examined Parsuram as DW1, Dr.Vinod Bajpai as DW2 and Dr. D.C. Dixit as DW3. 8. The learned trial Judge after scanning the evidence, came to hold that charges against other accused persons were not proved and hence acquitted them. In support of his defence, appellant examined Parsuram as DW1, Dr.Vinod Bajpai as DW2 and Dr. D.C. Dixit as DW3. 8. The learned trial Judge after scanning the evidence, came to hold that charges against other accused persons were not proved and hence acquitted them. Learned trial Court further came to hold that charges under sections 323/34 and 325/34 of IPC are also not proved against appellant and acquitted him from those charges but learned trial Court found the charge under sectopm 302 of IPC proved against the appellant. Eventually, he has been convicted to suffer the sentence as mentioned in para 1 of this judgment. 9. In this manner, this appeal has been filed by the appellant assailing his judgment of conviction and order of sentence. 10. It has been contended by Shri T.C. Bansal, learned counsel for appellant that genesis of occurrence has been deliberately suppressed by the prosecution by hiding the fact that the accused persons also sustained injuries in the same incident and in this context learned counsel has invited our attention to the testimony of autopsy surgeon Dr. J.P.S. Kushwaha (PW11) who on 26.8.1996 (one day after the incident) examined one of acquitted accused Ran Singh who sustained as many as five injuries. Learned counsel submits that indeed complainant party was aggressor and they were armed with deadly weapons and in this regard learned counsel has invited our attention to the testimony of Parsuram (DW1) Assistant Sub-Inspector who has proved the FIR lodged on behalf of accused side and on that basis case under sections 324, 325, 323, 147, 148, 149 IPC was registered at Crime No.50/97 against the complainant party and this witness was the Investigating Officer. Learned counsel has also invited our attention to Ex.D-5(c) and submitted that accused persons were in custody and from the jail they sent a written report, on the basis of which, on 12.2.1997 upon the incident dated 25.8.1996 case was registered against the complainant party under sections 324, 325, 323, 147, 148, 149 IPC. Hence, it has been submitted by learned counsel that if in exercise of right of their private defence, the appellant inflicted injury upon the person of deceased, at the most it can be said that right has been exceeded and the case would rest within the purview of section 304 (Part II) IPC. 11. Hence, it has been submitted by learned counsel that if in exercise of right of their private defence, the appellant inflicted injury upon the person of deceased, at the most it can be said that right has been exceeded and the case would rest within the purview of section 304 (Part II) IPC. 11. By inviting our attention to the testimony of author of FIR Ummed Singh (PW4) particularly para 8 it has been contended that even otherwise incident has occurred all of a sudden because there was a dispute between the complainant party and accused persons in respect of way which was going across the field of accused persons. Hence, it has been submitted by learned counsel that conviction of appellant be altered from section 302 of IPC to section 304 (Part II) of IPC. 12. Further it has been contended by learned counsel that aforesaid argument is an alternative argument, although his main argument is that looking to the evidence placed on record, offence is not at all proved against the appellant and therefore he is liable to be acquitted. 13. On the other hand, Sushri Sudha Shrivastava, learned counsel for State argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned trial Court convicting the appellant and therefore the appeal be dismissed. 14. Having heard learned counsel for the parties, we are of the view that this appeal deserves to be allowed in part. 15. In the present case, the prosecution has examined Jagram (PW1), Phoolkunwar Bai (PW3), Ummed Singh (PW4), Indrapal Singh (PW5) and Guddi(PW13) as eye-witnesses. Ummed Singh is also author of FIR Ex.P-5 which was lodged by him on 25.8.1996 i.e. the date of incident at 11:15 p.m. 16. On bare perusal of the testimony of author of FIR Ummed Singh it is gathered that on hearing hue and cry which was coming from his field which is behind his home, he and his other family members arrived at spot and found that appellant was giving blow of ballam on the abdomen region of the deceased, as a result of which he died. The suggestion in regard to aforesaid defence taken by accused persons was also put to him in para 13 of his cross-examination but the suggestion has been denied. The suggestion in regard to aforesaid defence taken by accused persons was also put to him in para 13 of his cross-examination but the suggestion has been denied. The testimony of author of FIR has been corroborated by the evidence of Phoolkunwar (PW3), Indrapal (PW6) and Guddi (PW13). Although on bare perusal of testimony of Phoolkunwar and Guddi as well as on going through the findings of trial Court who after marshalling the prosecution witnesses vis-a-vis to each other came to hold that Phoolkunwar and Guddi came little later on spot and therefore although they cannot be said to be eye-witnesses but certainly they are witnesses of res gestae. At this juncture we would like to scan the testimony of Dr. J.P.S. Kushwaha (PW11) who in para 4 of his cross-examination found following injuries on the person of acquitted accused person Ran Singh, which reads thus : (i) Lacerated wound of 3x0.5x0.5” over right side of head; (ii) Lacerated wound 1x1/2x1/2” over middle of left parietal bone of head. (iii) Contusion 2x1/2” over right side of parietal bone of head. (iv) Lacerated wound 2x1x1/2” on right shoulder. (v) Contusion on left hand thumb. The MLC report of acquitted co-accused Ran Singh is Ex.D-2(c). 17. On x-raying the testimony of autopsy surgeon of Dr. Kushwaha we find two injuries on the person of deceased and they are : (i) Contusion swelling 1 red colour over right upper arm area 3”x1/2” (ii) Punctured wound of 1”x1/2” wide on Rt. lliac fossa, oblique in direction with blood oozing it. Depth of the wound is deep upto Asd cavity. The post-mortem report of deceased is Ex.P-13 and this doctor has proved the post-mortem report. According to autopsy surgeon the injury No.1 was simple in nature while deceased had died on account of second injury sustained by him, which is a punctured wound. There is overwhelming evidence of the witnesses that appellant was carrying a ballam and he inflicted its injury upon the abdominal region of deceased. Thus, oral testimony of eye-witnesses is corroborated by medical evidence. According to us, learned trial Court rightly came to hold that on account of receiving injury No.2 deceased had died. 18. The question now would rest what offence appellant has committed. Thus, oral testimony of eye-witnesses is corroborated by medical evidence. According to us, learned trial Court rightly came to hold that on account of receiving injury No.2 deceased had died. 18. The question now would rest what offence appellant has committed. On bare perusal of the evidence placed on record and by paying heed to Ex.D-5(c) which is a written report sent by the accused persons it is found that when the accused persons were in jail, upon their report, a case under the aforesaid sections was registered against complainant party. The FIR Ex.D-5(c) cannot be said to be afterthought idea of the accused persons for the simple reason that the date when deceased was examined by autopsy surgeon Dr. Kushwaha (PW11) on the same day i.e. 26.8.1996 he also examined acquitted co-accused Ran Singh who sustained five injuries which we have quoted hereinabove. On bare perusal of the testimony of defence witness Dr. D.C. Dixit (DW3) it is gathered that x-ray of Ran Singh were taken out and there was fracture on meta carpal of left hand of Ran Singh, which was caused within 72 hours. Needless to say, the incident had occurred on 25.8.1996. The defence was also put to all eye-witnesses who were examined by the prosecution although suggestions were denied. Thus, it is gathered that prosecution tried to suppress the genesis of occurrence and it appears that in order to save the lives of the accused persons, appellant inflicted ballam blow upon the abdomen region of the deceased, but, looking to his act we are of the view that he exceeded his right and therefore offence is altered to section 304 (Part II) IPC. 19. Apart from what we have held hereinabove, on bare perusal of the cross-examination para 8 of the testimony of eye-witness Ummed Singh (PW4) we find that the complainant side were trying to use the field where incident had taken place, as way of their access which was being resisted and objected by accused persons, as a result of which, on this ground the altercation took place between the complainant side and accused persons. On scanning the testimony of PW4 and other eye-witnesses it is gathered that parties belong to same family and there was a land dispute between the parties. On scanning the testimony of PW4 and other eye-witnesses it is gathered that parties belong to same family and there was a land dispute between the parties. According to accused persons the disputed field where incident took place fell in their share and the complainant side was trying to use that field as way. Therefore, according to us, for this another reason also, the offence which has been committed by the appellant would fall within the ambit and sweep of section 304 (Part II) IPC. 20. Resultantly, this appeal succeeds in part and judgment of conviction of the appellant is altered from section 302 IPC to section 304 (Part II) IPC and he is hereby directed to suffer sentence of 8 years RI. Appellant is on bail. His bail bonds shall stand cancelled after he surrenders before learned trial Court on or before 31.8.2012 failing which learned trial Court shall issue perpetual arrest warrant against him and would also take action against his surety and pass necessary order in accordance with law. If appellant surrenders on or before 31.8.2012, his bail bonds shall stand cancelled and in that case appellant shall be sent to jail to carry out his remaining part of sentence. The Principal Registrar of this Court is hereby directed to send the record to learned trial Court so as to reach to that Court much prior to date fixed. 21. Appeal is partly allowed and disposed of to the extent indicated hereinabove. .............