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2014 DIGILAW 256 (CHH)

Amol Singh v. State of Madhya Pradesh

2014-07-10

PRITINKER DIWAKER, YATINDRA SINGH

body2014
JUDGMENT 1. This appeal arises out of the judgment of conviction and order of sentence dated 7.1.1999 passed by the IV Additional Sessions Judge, Bilaspur in S.T. No. 489/96 convicting the accused/appellants under Sections 302, 323 of IPC and sentencing them to undergo life imprisonment and R1 for six months. Both the sentences were directed to run concurrently. Case of the prosecution, in brief, is that accused/appellant No. 1 Amol Singh is son of late Bhelan Singh and name of sister of Bhelan Singh is Chandanbai (PW-2). It is alleged that originally the land in question was in the name of Dhokhiyabai, mother of Bhenal Singh and Chandanbai, and after her death, about 15 acres land came in possession of Chandanbai (PW-2) and rest 20 acres land came in possession of Bhelan Singh. After the death of Bhenal Singh, it is accused/appellant No. 1 Amol Singh who was claiming his possession over the said land. It is alleged that on 9.11.1996 at about 8 a.m. when deceased Jagatram, his son Dhirendra (PW-1) and wife Chandanbai (PW-2) were harvesting the paddy crop in their field, accused/appellant Nos. 1 & 2 Amol Singh and Devsharan accompanied by acquitted accused Baiju Singh came to the field and objected to harvesting of crop by the deceased party and thereafter, they (accused persons) left the place. At about 12 in the noon when the appellants were harvesting paddy crop in a field, which is about 50 yards away from the field where the deceased was harvesting, it is alleged that the deceased accompanied by Dhirendra (PW-1), Chandanbai (PW-2), Santosh (PW-2) and others went there and raised an objection. On this, appellant Nos. 1, 2 & 3 assaulted Chandanbai with clubs causing simple injuries to her, when deceased Jagatram came to her rescue appellant Nos. 1, 2 & 3 also assaulted him with club and thereby caused simple injuries to him as a result of which Jagatram fell down. At this juncture, Dhirendra (PW-1) grappled with appellant No. 4 Budhar Singh, who was armed with axe. He succeeded in snatching axe from him. However, during struggle appellant No. 4 repossessed axe from Dhirendra. In the meantime, Jagatram got up from the field and started running. At this juncture, Dhirendra (PW-1) grappled with appellant No. 4 Budhar Singh, who was armed with axe. He succeeded in snatching axe from him. However, during struggle appellant No. 4 repossessed axe from Dhirendra. In the meantime, Jagatram got up from the field and started running. It is alleged that at that time, appellant No. 4 having snatched axe from Dhirendra gave two axe blows to Jagatram which struck on his head and chest resulting in his death subsequently. In the said incident, PW-1 Dhirendra and PW-2 Chandanbai also suffered injuries. Further undisputed fact is that appellant No. 3 Guruddin, appellant No. 4 Budhar Singh and acquitted accused Rajju Singh also suffered injuries in the same incident. FIR (Ex. P/1) was lodged by Dhirendra (PW-1) on 9.11.1996 at 4.40 p.m. and based on this, offence under Sections 147, 148, 302, 149 of IPC were registered against 8 accused persons including the present appellants. Postmortem on the body of deceased Jagatram was conducted on 10.11.1996 vide Ex. P/6 by Dr. Roopam Mitra (PW-6), who noticed mainly one fatal injury on the head of the deceased and opined that the cause of death is intra-cranial haemorrhage (brain haemorrhage) because of trauma over skull. PW-1 Dhirendra and PW-2 Chandanbai were also medically examined vide Exs. P/8 & P/7 by Dr. Roopam Mitra (PW-6) and according to him, they sustained simple injuries. After investigation, charge-sheet was filed against the accused persons under Sections 147, 148, 149, 302, 323 of IPC and accordingly, charges under Sections 147, 302/149 and 323/149 were framed against them. 2. So as to hold the accused persons guilty, the prosecution examined as many as 11 witnesses. Statements of the accused persons were recorded under Section 313 of Cr.P.C. in which they denied the circumstances appearing against them in the prosecution case, pleaded innocence and false implication. In their defence, they examined one Rambhajan as DW-1. 3. The trial Court after hearing counsel for the respective parties and considering the material available on record, by the impugned judgment while acquitting four accused persons convicted and sentenced the appellants as mentioned in para-1 of this judgment. 4. During pendency of this appeal, accused/appellant No. 3 Gurudin has expired and therefore, the present appeal so far as it relates to appellant No. 4 abates and is dismissed as such. 4. During pendency of this appeal, accused/appellant No. 3 Gurudin has expired and therefore, the present appeal so far as it relates to appellant No. 4 abates and is dismissed as such. It has been informed by the State counsel that appellant No. 4 Budhar Singh has been set free on 17.7.2001 after pardon being granted by the Governor. 5. Learned counsel for the appellants submits as under: (i) that the dispute arose when the accused/appellants were harvesting their field and the deceased and his family members entered their field and objected to their harvesting and as such, it is the deceased party who were aggressor; (ii) that even if the entire prosecution case is taken as it is, the incident occurred all of a sudden on the spur of moment in the heat of passion without any premeditation and therefore, taking into consideration the fact that fatal injury on head of the deceased was allegedly caused by appellant No. 4 Budhar Singh, at best he can be held guilty under Section 304 Part-I of IPC and not under Section 302 of IPC. (iii) so far as accused/appellant Nos. 1 & 2 are concerned, considering the only allegation against them that they caused simple injuries to PW-1 Dhirendra and PW-2 Chandanbai and gave lathi blow to the deceased on his leg, they can be held guilt under Section 323 of IPC alone because there is no evidence to show that they were sharing common intention with the other accused persons of committing murder of the deceased or of causing such bodily injury to him as would result in his death; 6. On the other hand, supporting the impugned judgment it has been argued by learned counsel for the State that conviction of the accused/appellants is strictly in accordance with law and there is no illegality or infirmity in the judgment impugned warranting interference by this Court. Learned State counsel has shown the letter dated 18th July, 2001 of the Law Department wherein it has been mentioned that the sentence imposed on appellant No. 4 Budhar Singh has been pardoned by the Governor and he has been set free on 17.7.2001. 7. Heard learned counsel for the parties and perused the material available on record. 8. PW-1 Dhirendra Singh, son of the deceased, has stated that he knew the accused persons. 7. Heard learned counsel for the parties and perused the material available on record. 8. PW-1 Dhirendra Singh, son of the deceased, has stated that he knew the accused persons. On the date of incident he had gone to his field along with his mother Chandanbai (PW-2), father Jagatram (since deceased), brothers Santosh, Pravan and sisters Ku. Minakshi and Laxmidevi. While they were harvesting their field, at about 8 a.m. the accused persons Amol Singh, Devsharan, Baiju and Gurudin reached there and after abusing them they returned back. Thereafter, at about 12.30 noon the accused persons again came there, accused/appellant No. 3 Gurudin, appellant No. 2 Devsharan, appellant No. 1 Amol Singh and accused Baiju were having clubs in their hands and they started harvesting their (Jagatram's) field. When they were asked not to do so, they started beating his mother and then they also assaulted him and Jagatram. He has stated that accused/appellant No. 3 Gurudin and appellant No. 2 Devsharan assaulted with club on the leg of the deceased and appellant No. 4 Budhar, who was carrying axe in his hand, assaulted his father with axe on his head and chest as a result of which his father died. He has stated that it is he who lodged report Ex. P/1 at the police station. In the cross-examination, but for minor contradiction, this witness remained very firm and has reiterated as to the manner in which the incident took place and the accused persons assaulted his father Jagatram and other persons. 9. PW-2 Chandanbai, widow of the deceased, has made almost similar statement as has been made by PW-1 Dhirendra. She has stated that after snatching axe from the hand of her son Dhirendra, appellant No. 4 Budhar gave axe blow on the head of her husband Jagatram as a result of which he died. She has further stated that report was lodged by her son Dhirendra and the spot map was prepared in her presence. 10. PW-3 Devcharan Lahre, Police Constable, made seizure of certain clothes given to him by the doctor vide Ex. P/1. PW-4 Maheshram is a witness to inquest Ex. P/2, seizure Ex. P/3 of plain and bloodstained soil, seizure Ex. P/4 of Khasra Panchshala from appellant No. 1 Amol Singh. PW-5 Amardas had denied seizure Ex. P/5 by which documents related to partition deed and Will were seized. 11. PW-6 Dr. P/1. PW-4 Maheshram is a witness to inquest Ex. P/2, seizure Ex. P/3 of plain and bloodstained soil, seizure Ex. P/4 of Khasra Panchshala from appellant No. 1 Amol Singh. PW-5 Amardas had denied seizure Ex. P/5 by which documents related to partition deed and Will were seized. 11. PW-6 Dr. Roopam Mitra conducted post-mortem on the body of the deceased vide Ex. P/6 and noticed following injuries on his person: (i) lacerated wound and fracture of the temporal area left parietal bone of the scalp, size 3 cm x 2 cm, (ii) abrasion 1 cm x 2 cm left arm at upper 1/3 laterally; (iii) abrasion 2 cm x 2 cm left arm at lower 1/3 laterally. According to him, injury No. 1 was grievous in nature and the other injuries were simple in nature. He stated that these injuries may be caused by any hard and blunt object. In his opinion, the cause of death is intra-cranial haemorrhage (brain haemorrhage) because of trauma over skull. This witness had also examined PW-1 Dhirendra and PW-2 Chandanbai vide Exs. P/8 and P/7 and according to him, the injuries sustained by these injured were simple in nature. 12. PW-7 R.P. Singh, Assistant Sub-Inspector, helped in the initial investigation. PW-8 Gendram Kurmi, Patwari, prepared the spot map Ex. P/12. PW-9 Santosh, son of the deceased, is an eye-witness to the incident. He has made almost similar statement as have been made by PW-1 and PW-2. He too has stated that it is appellant No. 4 who caused head injury to the deceased by axe as a result of which he died. PW-10 Nankuniram has not supported the prosecution case and has been declared hostile. PW-11 B.L. Kerketta, investigating officer, has duly supported the prosecution case. 13. DW-1 Rambhajan has stated that the land in question where the incident had taken place was sown by accused/appellant No. 1 Amol Singh and he had been harvesting his field. He has further stated that since last 40-50 years appellant No. 1 Amol Singh was in possession of the land in question and last year also the land was sown by him and he was harvesting the same. He has further stated that the land in question was never sown by the deceased. 14. Minute examination of the evidence makes it clear that there is an old land related dispute between the parties. He has further stated that the land in question was never sown by the deceased. 14. Minute examination of the evidence makes it clear that there is an old land related dispute between the parties. From the evidence it appears that a part of the land in question bearing Khasra No. 205 was in possession of the accused/appellant No. 1 Amol Singh and other part of the same was possessed by the family of the deceased. Regarding possession of the said land a civil suit is also pending between the parties. Both the sides were claiming the entire land to be their ancestral property. However, there is no clinching evidence on record to show as to who was in possession of the land where the incident had taken place on the date of incident. The evidence reflects that on the date of incident while the deceased along with his family members was harvesting paddy crop in the field, allegedly owned by him, the accused/appellants reached there, objected to their harvesting and therefore, some hot talk took place between them which ultimately culminated into fight between them and ended in death of Jagatram and minor injuries to both PW-1 Dhirendra, PW-2 Chandanbai as well as to some of the accused persons. As per medical evidence the injury sustained by the deceased on his head proved to be fatal and resulted in his death. According to the eye-witnesses, the said injury was caused by accused/appellant No. 4 Budhar Singh. However, from close scrutiny of the entire evidence it appears that though the said injury was caused by appellant No. 4, but there was no premeditation on his part to cause death of the deceased, the incident occurred in the heat of passion upon a sudden quarrel. He did not act in a cruel or unusual manner, he made a solitary attack on the head of the deceased which unfortunately resulted in his death. Further, looking to the nature of weapon by which assault was made, the force with which the assault was made and the part of the body where assault was made, it can safely be held that appellant No. 4 Budhar Singh had the intention to cause such bodily injury to the deceased as is likely to result in his death. Further, looking to the nature of weapon by which assault was made, the force with which the assault was made and the part of the body where assault was made, it can safely be held that appellant No. 4 Budhar Singh had the intention to cause such bodily injury to the deceased as is likely to result in his death. This being the position, the act of appellant No. 4 is held to be culpable homicide not amounting to murder, it is covered by Exception 4 to Section 300 of IPC and therefore, he is liable to be punished under Section 304Part-I of IPC. 15. So far as accused/appellant Nos. 1 & 2 are concerned, there is no evidence to show that they were sharing common intention with appellant No. 4 Budhar Singh of causing the deceased such bodily injury as would result in his death and therefore, they cannot be convicted with the aid of Section 34 of IPC for the offence under Section 304 Part-I of IPC. As regards their conviction, in the absence of any evidence regarding sharing of common intention by them with appellant No. 4, they would be held guilty for their individual acts. The evidence goes to show that these appellants assaulted the deceased with clubs on his leg as well as Dhirendra (PW-1) and Chandanbai. In the post-mortem report, no injury was found on the leg of the deceased and as per MLC (Exs. P/7 & P/8) of Chandanbai and Dhirendra, the injuries suffered by them were simple in nature. As such, considering the nature of allegations, the role played by them in commission of the offence and the evidence against them, we are of the considered view that the trial Court was justified in convicting them under Section 323 of IPC, but has gone wrong in holding them guilty under Section 302 of IPC. The record reveals that they have already completed more than the maximum sentence as provided under Section 323of IPC. In the result, the appeal is allowed in part. While acquitting appellant Nos. 1 & 2 (Amol Singh & Devsharan) of the charge under Section302 of IPC, their conviction under Section 323 of IPC is maintained. They have already undergone more than the maximum jail sentence prescribed under Section 323 of IPC. In the result, the appeal is allowed in part. While acquitting appellant Nos. 1 & 2 (Amol Singh & Devsharan) of the charge under Section302 of IPC, their conviction under Section 323 of IPC is maintained. They have already undergone more than the maximum jail sentence prescribed under Section 323 of IPC. They are on bail, therefore, then-bail bonds shall continue for a period of six months from today in view of Section 437-A of Cr.P.C. While acquitting appellant No. 4 Budhar Singh of the charges under Sections 302 & 323 of IPC, he is held guilty under Section 304 Part-I of IPC. He has already been set free after pardon being granted by the Governor on 17.7.2001 and as such, no separate order is required to be passed in relation to him. Appeal allowed.