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Madhya Pradesh High Court · body

2013 DIGILAW 845 (MP)

Harji v. State of M. P.

2013-07-23

M.C.GARG, SHANTANU KEMKAR

body2013
JUDGMENT M.C. Garg, J. 1. This judgment shall dispose of the aforementioned criminal appeal filed by appellant-Harji assailing the judgment delivered by the learned Additional Sessions Judge in Sessions Trial No. 36/2000, whereby the appellant who was sent for trial along with other accused persons, was asked to face trial under Sections 302/34, 294 and 506 of IPC, but he has been convicted under Section 302 of IPC and has been sentenced to undergo RI for life with fine of Rs. 500/-, in default of payment of fine, to further undergo three months additional imprisonment. Appellant-Harji was sent for trial along with Babu to face charges under Section 302/34 of IPC on the allegation that on 6th of October, 1999 at about 9.45 p.m., in Rekha Colony, Depalpura, he along with other accused persons caused death of Shantilal, the deceased by causing such injuries upon his person which caused his death or which were sufficient to cause his death. Rangji is the complainant in this case. In the complaint (Exh. P-1), which was registered soon after the incident, he informed the police that his elder son Laxman used to stay with Harji, Shantilal used to object Laxman to be taken along with Harji, Babu and Ramesh. On such objection being taken by him, besides abusing the Complainant, appellant also caused injuries on the head of Shantilal by using an axe while Babu and Ramesh caught hold of him. At that time, Kalu, Mangliya and Harish came and tried to mediate. Thereafter, Shantilal was taken to hospital in a Thela. On the basis of the statement made by Rangji, the case was registered under Sections 294, 324 and 506 of IPC. Later on, Shantilal expired after 18 days, therefore, offence under Section 302/34 was also added. After the case was committed to sessions, Harji was charged for the offence under Section 302/34 of IPC as also under Sections 294 and 506 of IPC, but later on while accused-Babu and Ramesh, who were absconder, were sent for trial and acquitted, but the appellant-Harji has been convicted under Section 302 of IPC. He has been acquitted of the other offences. The evidence against the appellant consists of statement made by complainant-Rangji, who has supported what he has stated in the FIR. He has been acquitted of the other offences. The evidence against the appellant consists of statement made by complainant-Rangji, who has supported what he has stated in the FIR. During the course of investigation, police had recorded the statement of Rangji and other witnesses, who gathered at the spot including that of Mangliya, Kalu and Harish. They also recorded the statements of doctors who prepared MLC and conducted the post-mortem on the dead body of the deceased after his death. 2. In so far as the appellant is concerned, he denied his involvement in this case as alleged that he was falsely implicated in this case. However, the Trial Court, on the basis of the statement made by Rangji (P.W. 1), Laxman (P.W. 2), Raghunath (P.W. 4) and Kailash (P.W. 5) and after taking help from the statement made by Dr. Anchal Kumar Silawat (P.W. 6), who prepared MLC and Dr. Anand Kapse (P.W. 7), who conducted post-mortem of the deceased as also the statement of the police officer, convicted the appellant under Section 302/34 of IPC. The reasons which have been given by the Trial Court for reaching to the aforesaid conclusion find mention in Para 21 onwards of the impugned judgment. While relying upon the statement made by Rangji, Laxman, Sunita, Raghunath and Kailash, the Trial Judge has come to the conclusion that the statements prove that the injuries were caused by appellant-Harji upon the person of the deceased Shantilal by using an axe. The injuries, which were caused, were noticed by Dr. Anchal Kumar Silawat at the time of his examination on 6th of October, 1999. Dr. Anchal Kumar Silawat has deposed as under:-- 3. On the basis of the statement made by Dr. Anchal Kumar Silawat, the Trial Judge formed the following opinion:-- 4. Dealing with the question as to whether, the death of the deceased took place on account of injuries caused with the axe on 6th of October, 1999, the Trial Court has discussed the issue in Paras 25 to 27 of the impugned judgment while eliminating the possibility of wrong treatment of the deceased by the doctors namely, Dr. Vivek Kesarwani, Dr. Rakesh Gupta, Dr. Farid Khan and Dr. C.L. Sodhi, who conducted operation on the person of deceased Shantilal, The testimony of Dr. Vivek Kesarwani, Dr. Rakesh Gupta, Dr. Farid Khan and Dr. C.L. Sodhi, who conducted operation on the person of deceased Shantilal, The testimony of Dr. Anand Kapse has been noticed by the Trial Court in Paras 28 to 31 of the impugned judgment, which read as under:-- 5. In the light of the conclusion, which has been drawn from the aforesaid deposition of Doctor, the Trial Court has reached to the conclusion that the death of the deceased took place on account of septicemia because of the infection caused in his brain due to the injuries sustained by the deceased, which were inflicted upon him 30 days ago by the appellant. 6. Para 33 of the impugned judgment is also relevant, which is reproduced hereunder for the sake of reference:-- 7. From the aforesaid, while there is direct evidence about infliction of the injuries by the appellant upon the deceased with an axe, the effect of the injuries caused upon the deceased led to his death on account of septicemia after about 30 days. 8. Learned Counsel appearing for the appellant has argued that in this case, from the nature of injuries, which have been noticed during the post-mortem report, it cannot be said that the death of the deceased has been caused on account of blows given on the deceased by appellant-Harji with an axe. He, therefore, submits that the conviction of the appellant under Section 302 of IPC cannot be sustained. Moreover, it is also argued on behalf of the appellant that in this case, even otherwise, the injuries caused by the appellant upon the deceased does not make out the offence of murder, because the injuries have been caused without pre-meditation. Moreover, there is only one injury allegedly caused by the appellant upon the deceased. He has also not taken undue advantage or acting in a cruel or unusual manner. The injuries were committed without pre-meditation. As such, the case was covered by Exception 4 of Section 300 of the IPC. 9. The question, which has been raised before us by learned Counsel for the appellant is that considering all the facts of this case, no offence under Section 302 of IPC has been committed by the appellant. At the most, this can be under Section 326/34 of IPC. 9. The question, which has been raised before us by learned Counsel for the appellant is that considering all the facts of this case, no offence under Section 302 of IPC has been committed by the appellant. At the most, this can be under Section 326/34 of IPC. They have relied upon the judgment of the Hon'ble Supreme Court in the case of B.N. Kavatakar and another Vs. State of Karnataka, reported in : 1994 Supp. (1) SCC 304. In this case also, death of the deceased took place after 4-5 days because of septicemia. Relying upon the testimony of the doctor who opined in that case also that the death was a result of septicemia secondary to injuries caused and peritonitis and that the deceased died after five days of the occurrence, the Apex Court held that in this case, punishment at the most could have been awarded against the accused only under Section 326/34 of IPC. 10. In that case, however, there was no direct evidence regarding causing of injuries by the appellant. Some paragraphs of that judgment, which also throw light upon the controversy as before us are reproduced hereunder for the sake of reference:-- 7. Mr. Lalit, after taking us through the recorded evidence and the impugned judgment, challenged the finding of the Court below on two grounds. According to him, the evidence is inadequate and insufficient to warrant the conviction against the appellants and secondly, if the evidence even is accepted the offence would not amount to one punishable under Section 302read with Section 34, IPC, but would be only under Section 326 read with Section 34, IPC. 8. It may be noted, in this connection, that the High Court convicted them only under Section 302read with Section 34, IPC. The occurrence has taken place on a moonlit night. Admittedly, P.Ws. 8 and 9 did not sleep near the deceased but they came to the scene of occurrence after hearing the screams of the deceased and P.W. 7. As already stated, P.W. 7 is a star witness, whose evidence establishes the presence of P.W. 7 at the scene of occurrence. Therefore, even if the evidence of P.Ws. 8 and 9 is eschewed, we can safely rely upon the evidence of P.W. 7, which corroborates Exh. P-22, the statement recorded by P.W. 21 in the hospital. As already stated, P.W. 7 is a star witness, whose evidence establishes the presence of P.W. 7 at the scene of occurrence. Therefore, even if the evidence of P.Ws. 8 and 9 is eschewed, we can safely rely upon the evidence of P.W. 7, which corroborates Exh. P-22, the statement recorded by P.W. 21 in the hospital. Therefore, we have no hesitation in accepting the finding of the High Court that the appellants participated in the occurrence and they are the perpetrators of the offence. 9. The next question that comes up for our consideration is what is the nature of the offence that the appellants have committed. The Medical Officer who conducted autopsy on the dead body of the deceased has opined that the death was as a result of septicemia secondary to injuries and peritonitis. As we have indicated above, the deceased died after five days of the occurrence in the hospital. On an overall scrutiny of the facts and circumstances of the case coupled with the opinion of the Medical Officer, we are of the view that the offence would be one punishable under Section 326 read with Section 34, IPC. 11. However, in the present case, the testimony of eye-witnesses prove that the injuries were caused upon the deceased by the appellant by using axe. Of course, there is no injuries, which may show that the axe was used, but the impact of axe on the body of the deceased was found by the doctor, who prepared MLC and has also found when the post-mortem was conducted. The description of the body soon after the injuries were caused and the ultimate effect of the injuries, which led to the infection inside the body and the impact of old injuries found on occipital region of the deceased, which certainly can be co-related to the injuries caused by the appellant to the deceased at the relevant time, it can safely be said that while this may not be a case where the appellant should be convicted under Section 302 of IPC, but he is certainly liable to be convicted under Section 304 of IPC, as has been done in the case of Surajit Sarkar Vs. State of West Bengal, reported in 2013 Cri. L.R. (SC) 216. State of West Bengal, reported in 2013 Cri. L.R. (SC) 216. Considering all over the facts and the evidence which has come on record including the testimony of eye witnesses as well as the evidence of doctors, we are of the considered view that it is a fit case, where conviction of the appellant is required to be converted to offence under Section 304 Part I of IPC. Consequently, conviction of the appellant under Section 302 of IPC is converted in Section 304 Part I of IPC and the sentence of life imprisonment awarded to the appellant is reduced to the period of ten years RI. However, the fine imposed upon the appellant is increased from Rs. 500/- to Rs. 5000/-, which amount on being recovered shall be paid to the legal representatives of the deceased and in case, it is not paid by the appellant, the same shall be recovered as arrear of land revenue. The appellant is already in custody for about ten years. Since the appellant has already undergone the sentence of ten years RI, he is directed to be released forthwith, if not wanted in any other case.