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2013 DIGILAW 1459 (MP)

Devshankar v. State of M. P.

2013-11-27

A.K.SHRIVASTAVA, VIMLA JAIN

body2013
JUDGMENT Shrivastava, J. 1. Feeling aggrieved by the judgment of conviction and order of sentence dated 16.9.2008 passed by learned Sessions Judge, Chhatarpur in Sessions Trial No. 6/2008 convicting the appellant for the offence punishable section 302 of IPC and thereby sentencing him to suffer life imprisonment and fine of Rs. 5,000/- with default stipulation, the appellant has taken shelter of this Court by preferring this appeal under section 374(2) of the Code of Criminal Procedure, 1973. 2. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this appeal since in elaboration they have been narrated in paras 2 to 6 of the impugned judgment. However, for ready reference, it would be condign to mention that when the complainant Bhagwandas Yadav was inside his home, the appellant arrived and started uttering filthy abuses to him. The complainant did not react. Thereafter appellant went away. It is said that after an hour when complainant came out from his home, the appellant came there armed with stick and after abusing and threatening the complainant started beating him by the stick. On seeing the scene, wife of complainant arrived there and the was also beaten by appellant with the same stick. In between Munnilal Dubey (hereinafter shall be referred to as “deceassed”) came and intervened in the matter, but, blows of stick were dealt by appellant to him also causing injuries on his head, leg and other parts of body and ultimately he died. 3. Dead body of deceased was sent for postmortem where the doctor found that deceased had died on account of injuries sustained by him. Initially the case was registered under section 307 of IPC and the investigating agency also sent a letter to get the dying declaration recorded but by the time dying declaration could be recorded, deceased passed away, as a result of which case was altered to section 302 of IPC. 4. After investigation was over a charge sheet was submitted in the committal Court which on its turn committed the case of the Court of Session where appellant was tried. 5. The learned trial Judge on the basis of the material available in the charge sheet, framed charge punishable under section 302 of IPC against the appellant, which he denied and requested for the trial. 6. 5. The learned trial Judge on the basis of the material available in the charge sheet, framed charge punishable under section 302 of IPC against the appellant, which he denied and requested for the trial. 6. In order to bring home the charges, the prosecution examined as many as 13 witnesses and also proved certain documents on record. The defence of the appellant is of false implication and the same defence he set-forth in his statement recorded under section 313 CrPC. In support of his defence, he examined one witness namely Suresh Awasthy as DW 1 on the point of alibi. 7. The learned trial Court after appreciating and marshalling the evidence came to hold that appellant has committed the offence under section 302 of IPC and eventually convicted him accordingly and passed the order of sentence which we have mentioned in para 1 of this judgment. 8. In this manner, the present appeal has been filed by the appellant the judgment of conviction and order of sentence. 9. The contention of learned counsel for appellant is that because complainant Bhagwandas who is an eyewitness and also the author of FIR (Ex. P/17) and Kunwarbai (PW 2) wife of Bhagwandas and who is also an eyewitness did not support the case of prosecution and they were declared hostile although the case of prosecution is that both of them were also beaten by the appellant. Hence, it has been submitted that this appeal be allowed. An alernative submission has also been put-forth by learned counsel that if this Court comes to the conclusion that on account of blows of stick given by appellant to the deceased, he had died, since there is no previous enmity and incident had occurred all of a sudden when deceased tried to intervence in the scene and if the blows of stick were given by appellant to him, at the most the case would rest within the ambit and sweep of section 304 Part-1 of IPC. It is further submitted by learned counsel that appellant is in jail since 18.9.2007. In support of his argument learned counsel has placed heavy reliance upon the decsion of Supreme Court Parsuram Pandey and others v. State of Bihar AIR 2004 SC 5068 . 10. It is further submitted by learned counsel that appellant is in jail since 18.9.2007. In support of his argument learned counsel has placed heavy reliance upon the decsion of Supreme Court Parsuram Pandey and others v. State of Bihar AIR 2004 SC 5068 . 10. On the other hand, Shri Singh, learned Public Prosecutor argued in support of the impugned judgment and submitted that cogent reasons have been assigned by learned trial Court while convicting the appellant under section 302 of IPC. Hence, it has been prayed that this appeal be dismissed. 11. Having heard learned counsel for the parties, we are of the considered view that this appeal deserves to be allowed in part. 12. True, the injured eyewitness Bhagwandas (PW 1) and Kunwarbai (PW 2) did not support the case of prosecution and they were declared hostile. But, merely on this ground the entire case of prosecution cannot be somersaulted for the simple reason that immediately after the incident on hearing the hue and cry, the witnesses of res gastae Halke Yadav (PW 3), Kashiprasad Dubey (PW 4) and Nathuram (PW 5) arried there and saw the appellant running away from the place of occurrence and deceased was lying in injured condition. In the present case Halke Yadav (PW 3) was examined as eyewitness and he has also deposed that when he arrived at spot, he found that deceased was being beaten by appellant, but this is an omission. However, his presence soon after incident has been duly proved by him. He has categorically stated that deceased was lying in injured condition. Similar type of evidence is of Kashiprasad Dubey (PW 4) and Nathuram (PW 5) since the incident has been visualized by these three witnesses soon after the incident, according to us, their testimony is a relevant piece of evidence under section 6 and 8 of the Evidence Act. The decision of Supreme Court Parasuram Pandey (supra) is not applicable in the present case because these three witnesses were present at Ration Shop which is nearby the place of occurrence. Therefore, according to us, learned trial Court did not commit any error in hoding that on account of causing injuries by appellant to deceased, he had died. We have also gone through the evidence of autopsy surgeon Dr. S.K. Gupta (PW 6) and postmortem report of deceased Ex. Therefore, according to us, learned trial Court did not commit any error in hoding that on account of causing injuries by appellant to deceased, he had died. We have also gone through the evidence of autopsy surgeon Dr. S.K. Gupta (PW 6) and postmortem report of deceased Ex. P/19 in which following injuries were found by the autopsy surgeon on the person of deceased, they are :- 1. Diffuse swelling with deformity. Fracture was found in tibia fibula bone of RT leg. 2. Diffuse swelling in left elbow. 3. Stitched wound on mid frontal region 3 cm long on opening stitches wound is deep to bone. 4. Stitched wound on left parietal region of skull 3 cm long on opening wound is deep to bone. 5. Diffuse swelling over Rt. Temporal parietal region of skull. On opening scalp 8 cm x 4 cm present over the left temporal parietal region underlying temporal parietal bone in fractured. At this juncture, we would like to scan the testimony of MLC Dr. V.P. Shesha (PW 13) and MLC report of deceased Ex. P/22 in which this doctor found following injuries upon the person of deceased when he was alive. 1. Swelling with deformity It. leg expected fracture at leg. 2. I.w.Llt. frontal scalp 2cmx 1/2cmx 1/2 cm 3. I.w. 1 cm ½ cmx 1/2 cm mid frontal scalp. 4. Rt. Parietal blood clot 4 cm 5. rigidity, advised for x-ray 6. Bruises left hand 8x4 cm. In these state of affairs, we are of the view that on account of giving stick blows upon the deceased by the appellant, he had died. 13. Coming to alternative submission put-fourt by learned counsel for appellant that since it is prosecution’s own case that altercation was taken place between the appellant and hostile witness Bhagwandas (PW 1) and Kunwarbai (PW 2) and in between deceased arrived in scene and he was beaten by appellant by stick, thus, according to us, since there was no previous enmity and if in heat of passion appellant has dealt blow upon the deceased, his act would come within Exception 4 to section 30 of IPC. Thus, the conviction of appellant is altered to section 304 Part-1 of IPC and he is directed to suffer 10 years RI. 14. Resultantly, this appeal succeeds in part. Thus, the conviction of appellant is altered to section 304 Part-1 of IPC and he is directed to suffer 10 years RI. 14. Resultantly, this appeal succeeds in part. Conviction of appellant is altered from section 302 IPC to section 304 of IPC and he is sentenced to suffer 10 years rigorous imprisonment with fine as awarded by learned trial Court.