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Madhya Pradesh High Court · body

2013 DIGILAW 1076 (MP)

Rum Singh v. State of M. P.

2013-09-06

M.C.Garg, Shantanu Kemkar

body2013
JUDGMENT Kemkar, J. 1. This appeal under section 374 of the Code of Criminal Procedure, 1973 is directed against the judgment dated 24.12.2001 passed by the 2nd Additional Sessions Judge, Barwani in Sessions Trial No.37/2001, whereby convicting the appellant for the offence under section 302 of the Indian Penal Code and sentencing him for life imprisonment. 2. Briefly stated, the prosecution case is that on 26.10.2000 at 08.00 p.m., deceased Jhabar Singh while returning from the house of his elder brother Gul Singh, the appellant Rum Singh, Jaimal and Bishan obstructed him on his way and started abusing him for the demand made by him for giving half of the field and said that they would teach a lesson to him. Having said so, the appellant Rum Singh shot an arrow blow on him, which landed on his stomach. On account of this, blood started oozing out and Jhabar Singh fell down. On this, the appellant and two acquitted accused persons, while walking away threatened him that today he is being spared, but on some other day, he will be killed by them. The incident was seen by Gopal (PW 1). In the injured state Jhabar Singh returned to his village and narrated the incident to Bhuvan and Gildar (PW 5). Report of the incident was lodged next day i.e. on 27.10.2000 at Police Chowki, Ojhar. MLC of his injuries was conducted by Dr. M.L. Pawar (PW 6). Thereafter, on 28.10.2000, Jhabar Singh succumbed to the injuries at District Hospital, Barwani. On his death, postmortem of the dead body was performed; report of which is Ex. P/19. After completion of the investigation, challan was submitted. The accused persons abjured their guilt and pleaded innocence. 3. Before the trial Court the eye witness Gopal (PW 1) turned hostile. The trial Court, treating the first information report lodged by the deceased as dying declaration and taking into consideration the evidence of other witnesses, acquitted the other two accused persons, but convicted the appellant and sentenced him, as aforesaid. Aggrieved, the appellant has filed this appeal. 4. 3. Before the trial Court the eye witness Gopal (PW 1) turned hostile. The trial Court, treating the first information report lodged by the deceased as dying declaration and taking into consideration the evidence of other witnesses, acquitted the other two accused persons, but convicted the appellant and sentenced him, as aforesaid. Aggrieved, the appellant has filed this appeal. 4. Shri M.I. Khan, learned counsel for the appellant has argued that even from the dying declaration of the deceased and the evidence available on record, it is clear that after inflicting single arrow blow, which landed on the stomach of the deceased, he fell down, however, instead of causing further injuries, the appellant along with other two accused persons left the deceased in the injured state and went away by saying that today they are sparing him, but on some other day, he would be killed by them. He, therefore, argued that in view of the aforesaid prosecution case itself, the appellant’s conviction under section 302 of the Indian Penal Code is not well founded and instead, it deserves to be converted into section 304 Part-II of the Indian Penal Code, as though the act was done by the appellant with the knowledge that it is likely to cause death, but was without any intention to cause death. 5. We have considered the aforesaid submission. 6. In our considered view, the prosecution story is well founded and fully proved to hold that the appellant was the perpetrator of crime. However, even accepting the prosecution story in totality, it cannot be said that the appellant had the intention to murder Jhabar Singh. Admittedly, it is a case of single blow, which landed on the stomach of the deceased; the accused persons were three in number, but they did not cause further injuries, but left the spot saying that they are sparing him today but on some other day, he will be killed. Thus, even though the appellant had opportunity to cause death of Jhabar Singh, no further injuries were caused by him and he left the place of incident along with other accused persons. In the circumstances, we are unable to agree that the appellant had intention to cause death of Jhabar Singh. It, however, can be safely held that he had knowledge that by causing injury the deceased would die. 7. In the circumstances, we are unable to agree that the appellant had intention to cause death of Jhabar Singh. It, however, can be safely held that he had knowledge that by causing injury the deceased would die. 7. As a result, we set aside the conviction of the appellant under section 302 of the Indian Penal Code and the sentence of life imprisonment awarded to him and instead, convict him under section 304 Part-II of the Indian Penal Code and impose upon him the sentence of 10 (ten) years rigorous imprisonment. The appellant is in jail. He be released, if he has undergone the sentence and is not wanted in any other case. 8. The appeal is partly allowed.