Research › Search › Judgment

Madhya Pradesh High Court · body

2013 DIGILAW 337 (MP)

Satal Singh S/o Ram Singh Gond v. State of M. P.

2013-03-12

RAKESH SAKSENA, VIMLA JAIN

body2013
JUDGMENT : RAKESH SAKSENA, J. 1. Appellants have filed this appeal against the judgment dated 20th November, 2003, passed by Sessions Judge, Sagar in Sessions Trial No. 304/2002, convicting them under section 302/34 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs. 3000/-. In default of payment of fine, further rigorous imprisonment for a period of six months. 2. In short, the prosecution case is that in the night of 6-6-2002, at about 9.00 p.m. appellants along with accused Thakur Singh (acquitted) chased Mardan Singh (deceased) armed with sword, Sang (a sharp pointed weapon) and sticks. When Mardan Singh reached in front of his house, Satal Singh and Vinod Singh dealt blows to him with sword, Sang and Thakur Singh assaulted him with stick. Mardan Singh fell down and died at the spot. Accused persons ran away. Incident was witnessed by Indal Singh (PW-1), Ram Singh (PW-2), Nandlal (PW-3), Tulsiram (PW-4), Pratap (PW-5), Gajrani, Dulaiya and Munna. In the morning of 7-6-2002, Indal Singh went to Police Station, Jaisingh Nagar and lodged report (Ex.P/1). Investigating Officer H.B.L. Patel, after registering the case under section 302/34 of the Indian Penal Code, went at the spot, prepared spot map, seized plain and blood stained earth and conducted inquest proceedings. He recorded inquest memorandum (Ex.P/4) and sent the body of deceased for post-mortem examination to District Hospital, Sagar. Dr. Rajendra Jain (PW-7) conducted post-mortem examination and recorded post-mortem report as Ex.P/9-A. 3. After arrest of accused persons and completion of the investigation charge-sheet was filed and the case was committed for trial. 4. During trial accused persons pleaded false implication due to enmity over a dispute of hedge. They also examined Head Constable Halke Singh (DW-1) and Dropdibai (DW-2) in their defence. 5. Upon trial, after appreciating the evidence on record, learned Sessions Judge held the appellants guilty and convicted and sentenced them as aforesaid. However, finding evidence insufficient against accused Thakur Singh, acquitted him. 6. Aggrieved by their conviction and sentence appellants have filed the present appeal. 7. Shri Sanjay Patel, learned counsel for the appellants, submitted that the learned trial Judge committed error of law and facts. He mis-appreciated the evidence and did not consider the inconsistency between ocular and the medical evidence. However, finding evidence insufficient against accused Thakur Singh, acquitted him. 6. Aggrieved by their conviction and sentence appellants have filed the present appeal. 7. Shri Sanjay Patel, learned counsel for the appellants, submitted that the learned trial Judge committed error of law and facts. He mis-appreciated the evidence and did not consider the inconsistency between ocular and the medical evidence. Learned Sessions Judge also erred in holding that in the night due to darkness it was not possible for the witnesses to have identified the assailants. On the other hand, Shri Umesh Pandey, learned Government Advocate, supported the impugned judgment and justified the finding of conviction recorded by the trial Court. 8. We have heard the learned counsel for the parties and perused the impugned judgment and the evidence on record carefully. 9. It has not been disputed that deceased died of a homicidal death. The first information report (Ex.P/1) was lodged by eye-witness Indal Singh (PW-1) disclosing that appellants caused injuries to deceased with Sang and sword as a result of which he died. After drawing inquest memorandum (Ex.P/4), investigating officer (PW-10) referred the dead body of deceased for post-mortem examination to District Hospital, Sagar where Dr. Rajendra Jain (PW-7), on 7-6-2002, conducted the post-mortem examination. Dr. Rajendra Jain (PW-7) deposed that on 7-6-2002 he found following injuries on the body of deceased: “1. Penetrating wound 2 x 2 cm x cavity deep on right side of back. 2. Penetrating wound 4 x 2 x cavity deep right side middle of back. Both wounds 0.3 cm apart to each other. 3. Abrasion 2 x 2 cm x skin deep irregular on left thigh medially middle. 4. Scrotum and penis swollen. On internal examination doctor found right side lower lobe of lung punctured on posterior side. Thoracic cavity full of blood. All the injuries found on the body of deceased were ante mortem in nature. Injuries No. 1 and 2 were caused by some heavy pointed object. The injuries No. 1 and 2 were sufficient to cause death in ordinary course of nature. The cause of death was haemorrhagic shock and the death was homicidal in nature.” From the aforesaid evidence, we find it established that the death of deceased was homicidal in nature. 10. The next question is whether accused/appellants caused injuries to deceased which resulted into his death. The case rested mainly on the evidence of eye-witnesses viz. The cause of death was haemorrhagic shock and the death was homicidal in nature.” From the aforesaid evidence, we find it established that the death of deceased was homicidal in nature. 10. The next question is whether accused/appellants caused injuries to deceased which resulted into his death. The case rested mainly on the evidence of eye-witnesses viz. Indal Singh (PW-1), Ram Singh (PW-2), Nandlal (PW-3), Tulsiram (PW-4) and Pratap (PW-5). 11. Indal Singh (PW-1) deposed that his house was situated about 10-15 paces away from the house of the deceased. The house of deceased was visible from his house. In the night of occurrence, at about 8-9 p.m. when he was at his house, he heard noise from the side of the house of deceased. He came out of his house and reached at the house of deceased. He saw Satal Singh and Vinod Singh assaulting deceased with sword and Sang. Satal Singh dealt a blow of sword in the abdomen of deceased, as a result of which internal organs of his body protruded out. Vinod Singh dealt a blow with Sang on the left side back of deceased. He denied to have seen anything in the hands of accused Thakur Singh. According to him, at the time of occurrence a kerosene lamp was lit in the verandah. Tulsiram, the elder brother of deceased, wife and Bhabhi of deceased, Pratap, Nandlal, Munna and Ram Singh were also present at the spot. When he tried to stop them, appellants told to him that deceased uttered obscene abuses to them. After the incident, they all ran away. In the morning, he went to police station and lodged first information report (Ex.P/1). 12. Ram Singh (PW-2) and Nandlal (PW-3) deposed that their houses were situated adjacent to the house of deceased. Tulsiram (PW-4), the brother of deceased, deposed that he resided in the same house in which deceased resided. All these witnesses categorically stated that on hearing commotion they saw appellants chasing deceased. When deceased reached at his house, they dealt blows with sword and Sang to him as a result of which he fell down and died. According to Ram Singh, when he asked appellants as to why they were assaulting deceased, they retorted that if he wished to die, he may also come. When deceased reached at his house, they dealt blows with sword and Sang to him as a result of which he fell down and died. According to Ram Singh, when he asked appellants as to why they were assaulting deceased, they retorted that if he wished to die, he may also come. All the aforesaid witnesses were cross-examined at length, but no inconsistency or contradiction could be brought out in their evidence. 13. Learned counsel for the appellants urged that the evidence of these witnesses was inconsistent with the evidence of Dr. Rajendrda Jain (PW-7), who stated that no injury on the abdomen of deceased was noted by him in the post-mortem examination whereas all the witnesses deposed that appellant Satal Singh dealt sword blow in the abdomen of deceased. Therefore, the evidence of eye-witnesses was suspicious and it was doubtful that witnesses were present at the scene of occurrence. Learned counsel placed reliance on a decision of Punjab and Haryana High Court Raj Kumar vs. State of Haryana, 1997 Cri. L.J. 1445 wherein it has been observed that if the evidence of eye-witnesses is found to be wholly inconsistent with medical evidence, contradictory to each other and casting doubt on the presence of eye-witnesses at the time of occurrence and the motive for crime is also not established, accused would be entitled to be acquitted. 14. With due respect, we find that the facts of the present case are not similar to that of the case of Raj Kumar (supra). Dr. Rajendra Jain (PW-7) found two penetrating injuries on the right side back of deceased. Both the injuries were about 3 cm apart to each other. In these circumstances, it could not be held that the evidence of eye-witnesses was inconsistent to the evidence of doctor. Sword and Sang both could be used as penetrating weapons. Sang consists of a rectangular long pointed blade whereas the sword is a sharp edged, pointed and flattened weapon. Out of the two injuries found on the body of deceased, the dimensions of one injury were 2 x 2 cm x cavity deep and the dimensions of other injury were 4 x 2 cm x cavity deep. It is, therefore, quite apparent that injuries found on the body of deceased were caused by two different weapons. Dr. Out of the two injuries found on the body of deceased, the dimensions of one injury were 2 x 2 cm x cavity deep and the dimensions of other injury were 4 x 2 cm x cavity deep. It is, therefore, quite apparent that injuries found on the body of deceased were caused by two different weapons. Dr. Rajendra Jain, after observing the seized weapons, stated that the injuries found on the body of deceased were possible by those weapons. We, therefore, find no substance in the contention of the learned counsel for the appellants that the evidence of eye-witnesses was inconsistent with the medical evidence. 15. Learned counsel for the appellants submitted that it was not possible for the eye-witnesses to have identified the assailants in the night. We are unable to accept this submission in view of the fact that almost all the eye-witnesses deposed that the incident occurred in front of the house of deceased where a kerosene lamp was lit. Apart from it, all the eye-witnesses were neighbours of deceased to whom the accused persons were well known from the past. It has also been stated by the witnesses that they tried to intervene, but accused persons extended threats to them also. 16. The evidence of eye-witness Indal Singh (PW-1) finds corroboration from the first information report (Ex.P/1) lodged by him and also by the medical evidence. His evidence finds further corroboration from the evidence of Ram Singh (PW-2), Nandlal (PW-3), Tulsiram (PW-4) and Pratap (PW-5). The evidence of all the aforesaid eye-witnesses seems consistent, cogent and credit worthy. In our opinion, learned trial Judge committed no error in holding that appellants caused injuries to deceased with sword and Sang which resulted into his death. 17. Now we have to see whether appellants have been rightly convicted under section 302 of the Indian Penal Code for committing murder of deceased. It has come in the evidence of all the eye-witnesses that appellants had come chasing deceased up to his house where the incident occurred. When Indal Singh (PW-1) tried to save deceased, appellants told that deceased had uttered obscene abuses to them pertaining to mother and sister. Similar version was given by Nandlal (PW-3). According to him, on his asking the reason for beating deceased, appellants told that deceased hurled abuses to them pertaining to his daughter also. When Indal Singh (PW-1) tried to save deceased, appellants told that deceased had uttered obscene abuses to them pertaining to mother and sister. Similar version was given by Nandlal (PW-3). According to him, on his asking the reason for beating deceased, appellants told that deceased hurled abuses to them pertaining to his daughter also. They were so much enraged that when he asked as to why they were assaulting deceased, they told that if he wanted to die, he may also come. These facts give an indication that the conduct of deceased in uttering obscene abuses to appellants provoked them so much that they lost self control and chased deceased until they caused injuries to him with their weapons. It can also be inferred that there must have occurred some sudden altercation or quarrel which led appellants to assault deceased. Since the evidence indicated that appellants chased and assaulted deceased spontaneously, it seems probable that there had been no time gap between the conduct of deceased in abusing appellants and appellants' chasing and assaulting him. In this fact-situation, in our opinion, the case of appellants would fall within more than one Exceptions attached to section 300, Indian Penal Code. The conviction of appellants, in our opinion, under section 302/34 of the Indian Penal Code, therefore, was not justified. Since appellants used deadly weapons and caused fatal injuries to deceased, it has, however, to be held that they acted with the intention of causing death of deceased or of causing such bodily injuries to him as were likely to cause his death incurring liability on them to be punished under section 304-I of the Indian Penal Code. 18. For the reasons stated hereinabove, conviction and sentence of appellants under section 302/34 of the Indian Penal Code is set aside, instead they are convicted under section 304-I of the Indian Penal Code and sentenced to rigorous imprisonment for 10 years. 19. Appellants are reported to be in custody since the month of June, 2002. If they have served out sentence imposed hereinabove, they be released forthwith, if not required in any other case. 20. Appeal partly allowed.