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Madhya Pradesh High Court · body

2012 DIGILAW 818 (MP)

Sugram S/O Rajan v. State Of M. P.

2012-08-24

RAKESH SAKSENA, T.K.KAUSHAL

body2012
JUDGMENT : This appeal has been preferred against judgment dated 11-9-2000 passed by Second Additional Sessions Judge, Burhanpur, the then District Khandwa (M.P.) in Sessions Trial No. 92/99 convicting the appellants under section 302/34 of Indian Penal Code for committing murder of Jamsingh (since deceased) and sentencing them with life imprisonment and with fine of Rs. 20,000/-. Appellants have been further convicted under section 427 of Indian Penal Code for destroying hut of deceased and sentencing them with fine of Rs. 1,000/-. 2. Facts of the case, in short, are that on 27-2-1999 at about 6:30 p.m. appellants reached to the house of the deceased and started destroying it. With a view to escape, deceased ran away from the house. Subaram, son of the deceased (PW-3) informed the incident to his neighbouring brother Kashiram (PW-1). Appellants chased and drove away the deceased towards the house of Premla (PW-4). Appellant No. 2 dealt a lathi blow to the deceased whereby deceased fell down on the ground. Appellant No. l aimed bow and arrow at the deceased and shot the arrow in his left eye and repeated another arrow on the chest of the deceased. PW-1 and PW-3 saw the incident from their houses and rushed to the spot. Similarly Kaba (PW-2) and his brother Premla (PW-4) also witnessed the incident which occurred in front of their house and rushed to the spot. They found the deceased dead lying on the spot, Prior to the reaching of the witnesses on the spot, appellant, pulled the arrows out from the body of the deceased and fled away from the place. 3. Kashiram, (PW-1) informed the incident to the police persons who were present in the village Bori itself being a market day. A Dehati Nalishi Ex.P-1 under section 302/34 and 427 of Indian Penal Code was registered against the appellants and their brother Mumariya who died pending this appeal. Police prepared (Ex.P-3) Naksha Panchnama of dead body of the deceased (Ex.P-3). At the instance of Kashiram (PW-1) Naksha Mauka (Ex.P-4) was prepared. Nuksani Panchnama (Ex.P-5) was also prepared by the police. FIR (Ex.P-8) was lodged by Kashiram (PW-1) at police station Nimbola. A case at police station Nimbola under section 302/34 and 427 of Indian Penal Code at Crime No. 40/99 was registered against the appellants. 4. Dead body of the deceased was sent to Nehru Hospital Burhanpur for post-mortem. Dr. Nuksani Panchnama (Ex.P-5) was also prepared by the police. FIR (Ex.P-8) was lodged by Kashiram (PW-1) at police station Nimbola. A case at police station Nimbola under section 302/34 and 427 of Indian Penal Code at Crime No. 40/99 was registered against the appellants. 4. Dead body of the deceased was sent to Nehru Hospital Burhanpur for post-mortem. Dr. Pramod Kumar (PW-5) conducted post-mortem of the deceased and found following injuries on person of the deceased- (i) Lacerated wound 2 c.m. X "½ c.m. over lateral left to midline of abdomen. Found clotted blood present and probe was going deep in the wound. (ii) Lacerated wound 2"½ c.m. X "½ c.m. over lateral angle on left eye probe was going deep in the wound. (iii) Lacerated wound "½ c.m. X 1 c.m. left buttock. 5. Dr. Pramod Kumar (PW-5) prepared post-mortem report (Ex.P-7). Cause of death was found to be shock due to injuries on vital organs i.e. in the heart and on the face. Next day i.e. on 28-2-1999 appellants were arrested. At the instance of appellant No. 1, bow and 5 arrows, used in the incident, were recovered. Out of those, 2 arrows were found with blood stained heads. At the instance of appellant No. 2, weapon lathi was recovered. Recovered arrows, lathi, etc. were sent to Forensic Science Laboratory Calcutta for examination. Vide Serologist report Ex.P-18 human blood was found on the 2 arrows. After completing investigation police submitted a charge-sheet against the appellants. 6. Trial Court framed charges under sections 427 and 302 of Indian Penal Code. According to appellants, deceased caused an arrow injury on elbow of accused Mumariya who died during pendency of this appeal. A case under section 324 of Indian Penal Code was registered against the deceased and his son Subaram (PW-3). As a counter blast, this false case has been cooked by the complainant party against the appellants. Appellants, pleading innocence, abjured guilt. 7. To substantiate the case of prosecution, statements of Kashiram, son of deceased (PW-1), Kaba (PW-2), Subaram, son of deceased (PW-3), Premla (PW-4), Dr. Pramod Kumar (PW-5), L. G. Patil, ASI (PW-6), G. R. Goliya, Sub Inspector (PW-7), Jurawar Singh, Patwari (PW-8), Madan Singh (PW-9) and Kotwal (PW-10) were recorded. After appreciating aforesaid evidence trial Court has convicted and sentenced the appellants as above. 8. Pramod Kumar (PW-5), L. G. Patil, ASI (PW-6), G. R. Goliya, Sub Inspector (PW-7), Jurawar Singh, Patwari (PW-8), Madan Singh (PW-9) and Kotwal (PW-10) were recorded. After appreciating aforesaid evidence trial Court has convicted and sentenced the appellants as above. 8. Challenging the impugned judgment, this appeal has been preferred on the grounds that appreciation of evidence is not proper. Mumariya, brother of appellants has sustained an arrow injury caused by the deceased in this incident. Complainant party wanted to dispossess the appellants from the piece of land of the forest occupied by them. Conviction is bad in law and sentence is harsh. Learned Panel Lawyer, on the other hand, supported the findings of conviction and sentence both. 9. Dr. Pramod Kumar (PW-5) found two lacerated wounds on left eye and on chest of the deceased respectively. He also found corresponding laceration wounds in the heart measuring 1"½ c.m. X "½ c.m. and preserved the viscera along with heart. Evidence of PW-1, PW-2, PW-3 and PW-4 is clear on the point that deceased died instantaneous death. Appellant No. l pulled out the arrows from the body of the deceased and took those with him. In such situation there remains no doubt that though apparently lacerated wounds have been found on the body of the deceased and internal organs have been damaged by aforesaid injuries caused by arrows. Death of the deceased was homicidal in nature. 10. At the time of incident, Kaba (PW-2) and Premla (PW-4) both brothers who were present in the house of PW-4 saw the appellants chasing the deceased. PW-2, in para 3 of the statement, said that soon before this incident, deceased and Subaram (PW-3) shot an arrow blow to accused Mumariya. Thereafter appellants came to the house of the deceased. PW-1, PW-2, PW-3 and PW-4 stated that appellant No. 2 assaulted a lathi blow on the buttock of the deceased and deceased fell down on the ground. Then appellant No. 1 shot an arrow first on the left eye of the deceased and another on the chest of the deceased and after pulling out the arrows from the body of the deceased, fled away from the place. There appear no material discrepancy or omissions in evidence of eyewitnesses. Then appellant No. 1 shot an arrow first on the left eye of the deceased and another on the chest of the deceased and after pulling out the arrows from the body of the deceased, fled away from the place. There appear no material discrepancy or omissions in evidence of eyewitnesses. In nutshell, they saw that all the appellants chased the deceased in front of the house of PW-4, caused a lathi blow and when the deceased fell on the ground; caused arrow injuries. 11. Subaram (PW-3) stated that appellants came at his house and quarrelled with his father and broke the walls and tiles of the house. Appellants had a dispute with the deceased about the possession of the forest land which was occupied by the deceased since last 20-25 years. Kashiram (PW-1) living in neighbouring house of PW-3 just 20 steps away, after hearing the cries, came out of his house and saw the appellants, Kashiram (PW-1) and Subaram (PW-3) both stated that appellants drove the deceased upto the house of Premla (PW-4). 12. Kashiram (PW-1) promptly lodged first information report, which was recorded as Dehati Nalishi Ex.P-1 by police in the village itself, Madan Singh (PW-9) also saw the entire incident. He saw the incident from a distance of about 150 ft. and reached near the deceased immediately and found him dead, Though prosecution cited PW-1 also to be an eye-witness but in his cross examination he admitted that he did not see appellants actually causing injuries rather reached at the spot after the incident. 13. In view of the evidence of PW-2, PW-3, PW-4 and PW-9, there remains no doubt that appellant No. l shot arrow blows on the left eye and on the chest of the deceased. Prior to that appellant No. 2 dealt a lathi blow on the buttock of the deceased so he fell down on the ground. 14. G. R. Goliya, Sub Inspector (PW-7) prepared Naksha Mauka (Ex.P-4) at the instance of Kashiram (PW-1) and also prepared Nuksani Panchnama (Ex-P-5). On the basis of report Ex.D-1 of Mumariya (accused who died during pendency of this appeal) a case against deceased and Subaram (PW-3) was registered at Crime No. 40/99 under section 324/34 of Indian Penal Code. 14. G. R. Goliya, Sub Inspector (PW-7) prepared Naksha Mauka (Ex.P-4) at the instance of Kashiram (PW-1) and also prepared Nuksani Panchnama (Ex-P-5). On the basis of report Ex.D-1 of Mumariya (accused who died during pendency of this appeal) a case against deceased and Subaram (PW-3) was registered at Crime No. 40/99 under section 324/34 of Indian Penal Code. Time of the offence in that case was said to be 6:00 p.m. whereas present incident occurred at 6:30 p.m. Though injury report of accused Mumariya was not duly proved in present case but it remains no longer disputed that soon before the present incident Jamsingh (deceased) dealt an arrow blow on the person of the Mumariya accused, the brother of the appellants. In arrest memo of Mumariya (Ex.P-11), there is a clear mention of the fact of injury received by him in elbow of right hand. So far as time of both the incident is concerned, according to FIR (Ex.P-1) and (Ex.D-1), it is 6:30 p.m. and 6:00 p.m. respectively. Meaning thereby accused Murnariya received an injury at 6:00 p.m. caused by the deceased with an arrow and deceased received injury at 6:30 p.m. caused by the appellants. 15. It would not be out of place to mention that prosecution witnesses PW-1, PW-2, PW-3, PW-4 and PW-9 and similarly appellants and deceased all are tribal persons having no sophestication regarding accuracy of the time. Kashiram (PW-1) said that the incident occurred at about 5-6 p.m. Subaram (PW-3) said that the incident to be of about 5:30 p.m. He has denied the suggestion that soon before the incident Subaram (PW-3) along with deceased met with accused Mumariya and shot at him an arrow. Premla (PW-4) said that the incident to be of 6:30 p.m. 16. It is pertinent to note that appellant Mumariya lodged FIR (Ex.D-1) on the next day of the incident at the time of his arrest. But in the aforesaid report time of the incident was mentioned at 6:00 p.m. meaning thereby that it was only 30 minutes prior to the incident of this case. Place of the incident in Ex.D-1 was shown a well near the house of the accused. In present case the place of incident was in front of the house of Premla (PW-4). Place of the incident in Ex.D-1 was shown a well near the house of the accused. In present case the place of incident was in front of the house of Premla (PW-4). In the above situation, in our opinion, this 30 minutes difference in timings of both these incidents cannot be taken with a technical accuracy. In place of this 30 minutes gap between these incidents it may be something more or something less also. 17. On a careful perusal of the spot map (Ex.P-4), the evidence of Kashiram (PW-1), G. R. Goliya, Sub Inspector (PW-7) and Madan Singh (PW-9) it becomes clear that distance between the houses of the appellants and the deceased was about 2 furlongs. Similarly distance between the house of the deceased and the place of incident that is, front of the house of Premla (PW-4) was about 2 furlongs. 18. It is evident that incident began when deceased and his son Subaram (PW-3) shot arrow on the accused Mumariya, and accused Mumariya started bleeding in his hand. He along with his two brothers, the appellants, rushed to the house of the deceased and started demolishing the house and drove away the deceased forward and ultimately caught and assaulted him by stick blow and by the arrows. All this, occurred within a duration of less than half an hour. Place of both the incident are well connected with each other in the fields. There is no evidence, to show that appellants took a break or thought and planned the incident of killing the deceased. What has come on the record, is that after sustaining of the arrow injury in the hand of the accused Mumariya appellants in fact did not avail a slot of time to cool down and having felt provoked by the injury received in his hand, rushed to the house of the deceased and followed the deceased till he was killed. 19. In the above circumstances, it appears that appellants got deprived of their power of the self control due to grave and sudden provocation seeing their brother Mumariya bleeding from his hand, as a result of arrow injury caused by the deceased to him. Acts of the appellants, thus seem falling under Exception 1 of the section 300 of Indian Penal Code, which reads as below :- Exception 1. Acts of the appellants, thus seem falling under Exception 1 of the section 300 of Indian Penal Code, which reads as below :- 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. 20. In view of above, in our opinion, acts of the appellants in causing death of the deceased do not amount to murder but amount to culpable homicide not amounting to murder having been done while deprived of self control by sudden and grave provocation. Appellant No. l caused the arrow injury on the vital parts of the deceased resulting in his death and appellant No. 2 shared common intention with him and assaulted with lathi, making the deceased fail down | on the ground. 21. As discussed above conviction and life sentence of the appellant and under section 302/34 of Indian Penal Code deserves to be and is hereby set aside instead they are convicted under section 304 (Part-I) of Indian Penal Code and sentenced to 10 years R.I. Appeal is allowed in part as indicated above.