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2014 DIGILAW 31 (CHH)

SIYARAM GOND v. STATE OF M. P. (NOW C. G. )

2014-01-29

R.N.CHANDRAKAR

body2014
JUDGMENT 1. This appeal is directed against the judgment of conviction and order of sentence dated 30.9.1997 passed by 1st Additional Sessions Judge, Rajnandgaon, in Sessions Trial No. 63 of 1997, whereby the appellant has been convicted under Section 304 Part II of the IPC and sentenced to undergo RI for three years and to pay fine of Rs. 500/- in default of payment of fine to further undergo SI for three months. 2. As per case of prosecution, on 6.3.1997 deceased Gajanan was quarreling with Mansharam, father of the appellant. On this, accused Siyaram took Gajanan forcibly from the house to Ashram where Bhagwatpravachan was preaching and on the way the appellant/accused assaulted Gajanan, who fell on the ground. Thereafter, the appellant kicked on the abdomen and just upper private part (kotha) of the body of the deceased by legs. At the time of incident, Devkunwar, wife of the appellant also came there and assaulted Gajanan by fists. When Vijay Kumar, son of the deceased saw that his father was being assaulted by the accused, he rushed to the spot and intervened in the matter. At that time, Dev Prasad (PW 3) and Radhelal (PW 4) also reached there and intervened in the matter. Thereafter, Vijay Kumar, son of the deceased took away his father Gajanan to his house and gave some homely treatment to his father. Bhagirathi, Kotwar (PW 2) also came to see Gajanan. At that time, Gajanan was talking to Kotwar and there was some swelling just on the upper private part (Kotha) of the body of the deceased. After some time Gajanan died. Thereafter, Bhagirathi, Kotwar (PW 2) along with Vijay Kumar (PW 1) went to Police Station and lodged a report (Ex.P/1) and merg intimation (Ex.P/2). 3. Investigating Officer reached the spot and after summoning the witnesses vide Ex.P/5, inquest over the dead body was prepared vide Ex.P/6, spot map was prepared vide Ex.P/4 and dead body was sent for autopsy to Primary Health Centre, Mohla vide Ex.P/8-A where Dr. 3. Investigating Officer reached the spot and after summoning the witnesses vide Ex.P/5, inquest over the dead body was prepared vide Ex.P/6, spot map was prepared vide Ex.P/4 and dead body was sent for autopsy to Primary Health Centre, Mohla vide Ex.P/8-A where Dr. S.R. Mandavi (PW 17) conducted autopsy on the body of the deceased vide Ex.P/8-A and found 1) an abrasion over left elbow joint of 1 cm x 1 cm, black in colour, 2) an abrasion over right shoulder joint of ½" x 1 cm and 3) an abrasion over left side of back of 1 x 1 cm in back in colour and 4) contusion present over left side of abdomen. He opined that cause of death was due to infection of peritonitis. 4. Statements of witnesses were recorded under Section 161 of the Cr. P.C. After completion of investigation, charge sheet was filed against the appellant in the Court of Judicial Magistrate, First Class, Chauki, who in turn committed the ease to the Court of Sessions Judge, Rajnandgaon. Learned Additional Sessions Judge received the case on transfer for trial, who framed charge 302 read with Section 34 of the IPC against the appellant. 5. In order to prove the guilt of the appellants, prosecution examined as many as eight witnesses. Accused/appellant was examined under Section 313 of the Code of Criminal Procedure, where he denied the circumstances appearing against him and innocence and false implication in crime in question is claimed. 6. After affording opportunity of hearing to the parties, learned Additional Sessions Judge convicted and sentenced the appellants as aforementioned. 7. I have heard learned counsel for the parties, perused the judgment impugned and record of the trial court. 8. Learned counsel for the appellant vehemently argued that conviction is based on the evidence of alleged eye-witnesses Vijay Kumar (PW 1), Dev Prasad (PW 3), Radhelal (PW 4) and medical evidence of Dr. S.R. Mandavi (PW 7) whose evidence do not inspire confidence and trustworthy. There are omissions and contradictions in their statements and their evidence are not safe to rely for convicting the appellant. The deceased did not take proper treatment in time. Appellant has not caused grievous injuries to the deceased and no injury was found on the vital part of the body of the deceased. There are omissions and contradictions in their statements and their evidence are not safe to rely for convicting the appellant. The deceased did not take proper treatment in time. Appellant has not caused grievous injuries to the deceased and no injury was found on the vital part of the body of the deceased. If the evidence adduced on behalf of the prosecution is considered together on its face value, then the act of the appellant squarely falls within the ambit of Section 323 IPC and no case is made out under Section 304 Part II of the IPC against the appellant. In support of his arguments, he relied upon the decision of Hon'ble Supreme Court in the matter of Pirthi vs. State of Haryana, AIR 1994 SC 1582 , in which it has been observed that "having regard to the medical opinion, admittedly the injury to the testicles was not the direct cause of death. No treatment was given for two days and it is only on 4.4.1986 that deceased was admitted in the hospital. But, unfortunately, in the meanwhile, gangrene developed. Under the circumstances the offence only amounts to one punishable under Section 323 IPC." 9. Per contra, learned Panel Lawyer appearing on behalf of the State has opposed the arguments of counsel for the appellant and supported the impugned judgment passed by the court below. 10. In order to appreciate the arguments advanced by learned counsel for the parties, I have examined the evidence adduced on behalf of the prosecution. 11. As regards the complicity of appellant in crime in question, appellant has not disputed the fact that he has not caused injuries to the deceased. Even otherwise, same is also established by the evidence of eye-witness Vijay Kumar (PW 1) and medical evidence of Dr. S.R. Mandavi (PW 7). 12. Vijay Kumar (PW 1) has stated in his deposition that on the date of incident he saw that appellant Siyaram was dragging his father Gajanan from his house and thereafter he assaulted his father by legs on the private part of the body of his father. He further stated that at that time Dev Prasad (PW 3) and Radhelal (PW 4) also reached there and intervened in the matter. He took his father to his house. Bhagirathi, Kotwar (PW 2) also came to his house to see his father. After some time, his father died. He further stated that at that time Dev Prasad (PW 3) and Radhelal (PW 4) also reached there and intervened in the matter. He took his father to his house. Bhagirathi, Kotwar (PW 2) also came to his house to see his father. After some time, his father died. Thereafter, he went to Police Station, Mohla and lodged report. Defence has cross-examined this witness at length, but has not been able to elicit anything in his cross-examination to discredit his testimony. The evidence of this witness is corroborated by the evidence of Dev Prasad (PW 3) and Radhelal (PW 4) as also by the evidence of Dr. S.R. Mandavi (PW 7). 13. Dr. S.R. Mandavi (PW 7) has stated in his deposition that he conducted autopsy and found an abrasion over left elbow joint of 1 cm x 1 cm, black in colour, an abrasion over right shoulder joint of ½" x 1 cm and 3) an abrasion over left side of back of 1 x 1 cm black in colour and 4) contusion present over left side of abdomen. He also deposed that cause of death was due to infection. He stated in his cross examination that no injury was found on the vital part of the body of the deceased. 14. From perusal of the above medical evidence, it is clear that in the present case, appellant has caused simple blows to the deceased by leg, no injury on the vital part of the deceased has been noticed and cause of death of deceased Gajanan was due to infection and not by any injury caused by the accused person. Considering the medical evidence and in view of law laid down by Hon'ble the Supreme Court in the matter of Pirthi (supra), I am of the view that the act attributed to the appellant squarely falls within the ambit of Section 323 of the IPC. While convicting and sentencing the appellant under Section 304 Part II of IPC, the court below has not considered the facts and thereby committed illegality. 15. Consequently, the appeal is party allowed. Conviction and sentence awarded to the appellant under Section 304 Part II of IPC are set aside. He is acquitted of the charge framed against him. Instead, he is convicted under Section 323 IPC and sentenced to undergo RI for the period already undergone by him. 15. Consequently, the appeal is party allowed. Conviction and sentence awarded to the appellant under Section 304 Part II of IPC are set aside. He is acquitted of the charge framed against him. Instead, he is convicted under Section 323 IPC and sentenced to undergo RI for the period already undergone by him. It is stated that the appellant has already served more than 5 months jail sentence. It is stated that now the appellant is on bail. His bail bonds shall continue for a period of six months in view of Section 437A of Cr. P.C. Appeal Partly Allowed.