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2017 DIGILAW 1191 (MP)

Bilawar v. State of M. P.

2017-11-21

ALOK VERMA, VIRENDER SINGH

body2017
JUDGMENT Singh, J. -- 1. Being aggrieved by the judgment and order dated 6.2.2017 passed in Sessions Trial No.211/2006 by 6th Additional Sessions Judge (Fast Track), Ujjain, whereby the appellants have been held guilty for the offence punishable under section 302 read with section 34 of IPC and sentenced for life imprisonment with fine of Rs.1,000/- each and in default of payment of fine to undergo simple imprisonment for three months each, the appellants have preferred the present appeal. 2. Background facts sans unnecessary details are that on 19.4.2006, at about 11.30 in the night near cement godown at Railway Station, Ujjain the appellants, who are brothers, came at the camp of the complainant Vinodbai and started abusing her husband Ujgariya. They indulged in scuffle. Bilawar stated that he would kill the deceased. Then, Iqbal caught him (deceased Ujgariya) from behind and Bilawar took out a knife and inflicted it on the chest of the deceased. The complainant Vinodbai tried to intervene and save her husband but they pushed her, due to which she also sustained injuries. Her husband fell down and died on spot. The appellants fled away. Stating that due to a petty scuffle in the morning amongst the children, the appellants have committed the incident. The complainant filed FIR. Crime No.6/2006 under sections 302/34 of IPC was registered at Police Station GRP, Ujjain and investigated by the SHO H.S.Verma (PW-6). 3. During investigation the Police prepared spot map Ex.P-10, called the witnesses, prepared panchnama Lash and sent dead body for post-mortem. Dr. Anil Sinha, Medical Officer, performed post-mortem and opined that the death of Ujgariya was homicidal. The Police took the appellants in custody and interrogated them and seized knife from the possession of appellant Bilawar on the basis of disclosure statement recorded under section 27 of the Evidence Act. The Police made a query to Dr. Anil Sinha, who opined that injury found on the body of the deceased may be caused by the knife seized from Bilawar. After completing other formalities, the Police filed charge sheet, which ended in the conviction of the appellants as stated above. 4. The appellants have preferred this appeal on the grounds that the judgment of the learned trial Court is contrary to the law and facts. After completing other formalities, the Police filed charge sheet, which ended in the conviction of the appellants as stated above. 4. The appellants have preferred this appeal on the grounds that the judgment of the learned trial Court is contrary to the law and facts. Learned trial Court committed error in appreciating the statement of the witnesses and also not considering the exaggeration and contradictions and omissions appeared in the statement of the witnesses. The complainant has stated that during the scuffle, she also sustained injuries but no such injury is proved by the prosecution, therefore, presence of the complainant on the spot is suspicious. Another eye witness Awadha Singh is a 10 years boy and his presence is also suspicious in the late night hours. FIR filed in this case is ante-timed. The incident took place in the night at 11:30 p.m. and there was darkness at the place of incident, therefore, it was not possible for anyone to see the incident. It is further argued that Iqbal has not caused any injury to the deceased. The incident was not pre-planned and no evidence of preparation or premeditation is there. It happened suddenly. The intention of the appellants was not to cause death of the deceased; therefore, it is prayed to allow the appeal and to set aside the judgment and order of the trial Court. 5. The prosecution has opposed the appeal. It is stated by the learned Public Prosecutor that the incident is proved by the statement of the complainant Vinodbai which is supported by the statement of child witness Awadha Singh (PW3) and further corroborated by the statement of Dr. Anil Sinha (PW7) and post-mortem report given by him and also the statement of Investigating Officer H.S.Verma and recovery of the arm/knife used in the incident from the exclusive possession of the appellant Bilawar. The trial Court has rightly relied upon the evidence and has passed the impugned judgment. The learned Public Prosecutor pressed for dismissal of the appeal. 6. We have considered rival contention of the parties and have gone through the record. 7. At about date, time and place of the incident Ujgariya died due to an injury on his chest. The trial Court has rightly relied upon the evidence and has passed the impugned judgment. The learned Public Prosecutor pressed for dismissal of the appeal. 6. We have considered rival contention of the parties and have gone through the record. 7. At about date, time and place of the incident Ujgariya died due to an injury on his chest. The injury was ante-mortem and death was homicidal and was caused within 12 hours of the post mortem, these facts have not been challenged by the appellants and are well established by the statement of complainant Vinodbai (PW1), Awadha Singh (PW3), SHO H.S.Verma (PW6) and Dr. Anil Sinha (PW7). The statements are further supported by the FIR (Ex.P-1), notice (Ex.P-6), panchnama Lash (Ex.P-7), requisition of post-mortem (Ex.P-9) and post-mortem report (Ex.P-15), spot map (Ex.P-10) and seizure of clothes (Ex.P-11). This does not need any detail discussion as the same has already been done by the trial Court. 8. Giving details of the incident, the complainant Vinodbai (PW-1) has stated that on the date of the incident, on the issue of some scuffle between the children the, appellants came at their camp and started abusing her husband. Iqbal caught her husband and Bilawar inflicted knife on the chest of the deceased. When she tried to intervene, they beat her up also. Her husband was died on the spot. Awadha Singh (PW3) has supported her statement. Nothing contrary could be brought on record, even after cross-examination of these witnesses and their statements are further supported by SHO H.S.Verma (PW6) and Dr. Anil Sinha (PW7). They also found corroboration in the FIR, spot map prepared by the Investigating Officer, panchnama Lash, requisition for post-mortem and post-mortem report. Learned trial Court has appreciated all this evidence and has correctly relied upon it. No material contradictions or omissions could be pointed out by the learned counsel appearing for the appellants. 9. The complainant Vinodbai has stated that at the time of the incident the appellants only pushed her or beat her up with kicks and fists, therefore, absence of any mark of injury does not create any doubt. Vinodbai (PW1) has stated that she informed the Police by telephone while SHO H.S. Verma has stated that he does not receive any information on phone but Vinodbai has never stated that she informed H.S.Verma on telephone, therefore, this is not a contradiction in fact. 10. Vinodbai (PW1) has stated that she informed the Police by telephone while SHO H.S. Verma has stated that he does not receive any information on phone but Vinodbai has never stated that she informed H.S.Verma on telephone, therefore, this is not a contradiction in fact. 10. Learned counsel for the appellant invited our attention towards the statement of Vinodbai (PW1) in Para 3 where she has stated that she intimated the Police after two hours of the incident but the FIR is registered at 23.50 and the incident took place at 23.30, thus the FIR is ante-time but the witness is an illiterate lady. The complainant has stated only estimated time and such type of variation in the estimated time is natural. This does not make the statement doubtful. Prakash (PW4) has stated that the scuffle took place at about 9 O'Clock in the night but like Vinodbai he has also only stated estimated time. Otherwise also this witness has never informed the Police. He was neither an eye witness nor his presence is proved on the spot. He is only a witness of seizure of knife; therefore, his statement does not affect the credence of the eye witnesses. 11. The statements of Prakash (PW4) and Mukesh (PW5) are contradictory and are not helpful for the prosecution to prove the issue of the knife from the accused/appellant Bilawar, as they both have stated that they have signed the papers on the instigation of Police and they are not sure that from whose possession knife was seized by the Police. But in this regard statement of H.S. Verma (PW6), who has interrogated the appellants and has seized the knife from the appellant Bilawar on the basis of his disclosure statement are self sufficient and further gets corroboration from memo of arrest (Ex.P-4), memo under section 27 of the Evidence Act (Ex.P-1) and seizure memo (Ex.P-2). All these evidences could not be rebutted by the defence during the cross-examination of Shri H.S. Verma and this evidence further supports the statement of the eye witnesses. All these evidences are sufficient to hold the offence proved and the learned trial Court has rightly did so. 12. It is not disputed that both the parties are related to the same community. They are wanderer and have no fixed abode. They belonged to migratory caste. They live in camps. All these evidences are sufficient to hold the offence proved and the learned trial Court has rightly did so. 12. It is not disputed that both the parties are related to the same community. They are wanderer and have no fixed abode. They belonged to migratory caste. They live in camps. At the time of the incident, their camps were established at the Railway Station. The incident took place on a petty issue of scuffle between children. The appellants had come to complain as to why the deceased had slapped their children on a petty quarrel between them. It appears that the incident had happened in a fit of rage. No sign of preparation, pre-plan or pre-mediation is there. No injury is inflicted by the appellant Iqbal. Only one injury is inflicted by the appellant Bilawar which proved fatal. 13. Considering overall facts and circumstances prevailing at the time of the incident and the nature of incident and manner of causing the injury and the fact that the incident had happened in a heated spur of moment suddenly without preparation and meditation, the appellants inflicted injuries to the deceased Ujgariya, therefore, the case falls under the purview of section 304 Part-II of the IPC. 14. In view of the aforesaid facts and circumstances of the case and the law laid down in Madhvan and others v. State of Tamil Nadu, reported in AIR 2017 SC 3847 , Sikander Kali v. State of Maharashtra, reported in 2017 SC 1150, Elavarasan v. State, reported in AIR 2011 SC 2816 , the appeal is partly allowed. We hold the appellants guilty for committing offence under section 304 Part-II of IPC instead of the offence under section 302 of IPC. The appellants are in jail since 22.4.2006 and have served out imprisonment of almost 11 and half years. Considering the nature of the incident and keeping in view of the facts and circumstances of the case, in our considered opinion the ends of justice would be served if the appellants are awarded punishment for the period of jail sentence already undergone, therefore, we partly allow the appeal. We modify the judgment of the learned trial Court to the extent that instead of section 302/34 IPC, we hold the appellants guilty for commission of the offence under section 304 Part-II of IPC. 15. We modify the judgment of the learned trial Court to the extent that instead of section 302/34 IPC, we hold the appellants guilty for commission of the offence under section 304 Part-II of IPC. 15. With the aforesaid modification the appeal filed by the appellant is partly allowed to the extent as stated above. The appellants be set at liberty forthwith if not required in any other case. 16. The order of the trial Court regarding disposal of the property stands confirmed. Seema Sharma for appellants; Peyush Jain, Government Advocate for respondent/State.