Research › Search › Judgment

Madhya Pradesh High Court · body

2018 DIGILAW 602 (MP)

Vikram v. State of M. P.

2018-07-09

J.K.MAHESHWARI, PRAKASH SHRIVASTAVA

body2018
JUDGMENT Maheshwari, J.--1. This appeal under section 374 (2) of the CrPC has been filed arising out of the judgment dated 15.9.2006 passed by the Sessions Judge, Ujain in S.T. No. 55/2006, by which the appellant is convicted for the charge under section 302 of the IPC while two co-accused namely Sitaram and Sajanbai have been acquitted from the charge under section 302/34 of the IPC and the appellant is sentenced to undergo the life imprisonment with fine of Rs. 3,000/-, in default one year S.I. 2. The prosecution as alleged is that on 25.10.2005 at about 8 p.m. in the night in village Salakhedi, there was some quarrel in-between Rajkunwar and Sajanbai. Deceased Modsingh was present there. He made an attempt to pacify the issue giving advise to Rajkunwar. In the meantime accused Vikram came and said why Modsingh is quarrelling with his mother and on the fraction of moment he assaulted by means of knife on his stomach and ran away from spot. Complainant Mohan brought the Modsingh in a tractor to the hospital, where he was declared dead by doctor. On the FIR of Mohan Singh offence was registered under section 302 read with section 34 of the IPC and section 25(A) of the Arms Act at Crime No. 322/05 by Police Station Tarana. The police has investigated the matter and completed the said investigation. 3. After completion of the investigation, Challan was filed before the competent Judicial Magistrate First Class, Tarana which was registered as Case No. 29/06. As the offence was triable by the Court of Sessions, therefore, it was committed, where the Sessions Judge framed the charge under section 302 of the IPC against the appellant Vikram, while against other two co-accused persons namely Sitaram and Sajanbai charge under section 302/34. The accused persons have abjured their guilt and taken a defence that wife of Modsingh was chopping the vegetable outside the door, at that time there was quarrel in-between them and Modsingh made 3- 4 slaps over the face of his wife, at that time the knife which was in the hand of his wife, Modsingh received injuries due to which he died and the accused persons have been falsely implicated in this case. 4. Learned trial Court has considered the statement of Mohan Singh (PW8) and Rajkunwar Bai (PW10) and also considering the statement of Dr. 4. Learned trial Court has considered the statement of Mohan Singh (PW8) and Rajkunwar Bai (PW10) and also considering the statement of Dr. M.K. Pippal (PW7) and the autopsy surgeon Dr. B.B. Purohit (PW1) and found that as per the statement of the prosecution witnesses charge under section 302/34 of the IPC has not been proved against the coaccused persons Sitaram and Sajan Bai. Simultaneously it was found that looking to the statement of Mohan Singh the assault is made by the accused-appellant Vikram over the stomach of the deceased, which is corroborated by the statement of Dr. B.B. Purohit (PW1) and due to those injuries he was died. However, the other co-accused persons namely Sitaram and Sajanbai have been acquitted, while the accused-appellant Vikram was convicted for the charge under section 302 of the IPC and directed to undergo the sentence as described hereinabove. 5. Learned counsel for the appellant has first made an attempt to demolish the findings of conviction recorded by the trial Court against the appellant referring the statement of PW8 Mohan Singh and PW10 Rajkunwar Bai. It is said that their testimony narrating the prosecution story are quite different, except on the point of making an assault by the appellant, therefore, their testimony is not of sterling character which can be relied upon to convict the appellant maintaining the findings as recorded by the trial Court. It is further urged by him in alternative that in case the prosecution allegation of assault by means of a knife by the appellant is proved, then looking to the prosecution case the incident took place all of a sudden and the appellant has reached on the spot without any premeditation and in a heat of passion under misunderstanding assaulted the deceased by means of a knife, in such an event the case may fall under section 304 Part-II of the IPC, however the conviction of appellant under section 302 IPC deserves to be set aside and the sentence already undergone by the appellant would be sufficient in the facts of the case. In support of his contention reliance has been placed on the judgment of the Hon'ble Supreme Court in the case of Laxman Kalu Nikalje v. State of Maharashtra, reported in AIR 1968 SC 1390 , in the case of Surain Singh v. State of Punjab passed in Criminal Appeal No. 2284/2009 vide order dated 10.4.2017 and in the case of Atul Thakur v. State of Himachal Pradesh passed in Criminal Appeal No. 522-523 of 2016 vide order dated 19.1.2018. 6. On the other hand, Shri Amit Singh learned Government Advocate submits that though learned trial Court has not found the testimony of PW12 Biharilal as worthy to rely but the testimony of Mohan Singh (PW8) and Rajkunwar Bai (PW10) was found reliable on the point of assault by Vikram using knife, therefore, looking to the statement of PW1 Dr. B.B. Purohit conviction of appellant under section 302 of the IPC has rightly been directed by the trial Court, which do not warrant any interference in the facts of this case. 7. After having heard learned counsel appearing on behalf of both the parties and after going through the statement of PW8 Mohan Singh and PW10 Rajkunwar Bai, it is apparent that at the time when Modsingh was trying to settle the issue with Rajkunwar Bai, Vikram Singh came and assaulted by means of a knife restating the fact that why the deceased is quarrelling with his mother. As per the evidence it is also apparent that Vikram Singh was not present when the quarrel took place with the wife of the deceased and Rajkunwar Bai. The trial Court found that Sajan Bai and Sitaram were not found involved in commission of the offence having their common intention to commit the murder of deceased Modsingh. In such a circumstances looking to the findings of the trial Court as well as the evidence brought on record, it is apparent that the incident took place all of a sudden and under some misunderstanding the accused assaulted by means of knife in a heat of passion to the deceased and due to those injuries the deceased died when he was brought to the hospital. It is not the case of prosecution that the accused assaulted the deceased with intent to commit murder. It is not the case of prosecution that the accused assaulted the deceased with intent to commit murder. The trial Court also found that in the statement of Mohansingh (PW8) and Rajkunwar Bai (PW10), their testimony is contradictory to some extent and they deposed in Court over exaggerating the incident. It is also held by the trial Court that there was no dispute of the land or otherwise there was no motive to the accused to commit murder of Modsingh. In such a circumstances it can safely be inferred that the incidence took place all of a sudden, where the accused presumed that Modsingh is quarrelling with his mother and in the said heat of passion assaulted by means of knife over the stomach while there was a sudden quarrel. At that time he has not acted in a cruel or unusual manner. There is no evidence on record to infer that the accused was having an intention but he caused injuries twice by means of knife. Considering all these circumstances and the statement of Dr. B.B. Purohit (PW1), in our considered opinion the conviction of the appellant for the offence under section 302 of the IPC is not in accordance with law. 8. At this stage this Court can safely refer the judgment in the case of Atul Thakur (supra), whereby Hon'ble The Supreme Court after setting aside the conviction under section IPC in a case of repeated blow convicted the appellant for the charge under section 304 Part-II IPC and directed to undergo the sentence of 10 years with fine. Similarly in the case of Surain Singh (supra), the Court set aside the conviction for the charge under section 302 of the IPC and giving benefit of Exception 4 of section 300 of the IPC, convicted the appellant under section 304 Part-II of the IPC. Similarly in the case of Surain Singh (supra), the Court set aside the conviction for the charge under section 302 of the IPC and giving benefit of Exception 4 of section 300 of the IPC, convicted the appellant under section 304 Part-II of the IPC. Therefore, considering the fact of the present case wherein two knife blows were assaulted but the incident has taken place all of a sudden without premeditation in a heat of passion while some dispute was with the deceased and mother of the accused, the accused felt that the deceased was quarrelling with his mother, therefore, he assaulted, in our considered opinion it is a fit case wherein by setting aside the conviction of the charge under section 302 of the IPC, the appellant may be convicted for the charge under section 304 Part-II of the IPC. 9. On perusal of the record it reveals that the appellant is in custody with effect from 28.10.2005 from the date of arrest and he has not been released on bail during trial or during pendency of this appeal, therefore, by this time he has already served his sentence of more than 12 and half years. In such circumstances the sentence already undergone by the appellant would be sufficient for his conviction of the charge under section 304 Part-II of the IPC as discussed above. 10. Accordingly, this appeal is hereby allowed in part. Conviction of the appellant under section 302 of the IPC stands set aside and instead he is convicted for the charge under section 304 Part-II of the IPC. The sentence already undergone by the appellant would be sufficient to prove his guilt for the said charges, therefore, the authorities are directed to release the appellant if he is not required in any other case, on receiving the copy of this order. 11. Registry is directed to send the copy of this order to the jail authorities as well as the trial Court concerned to take appropriate steps in view of the foregoing. 12. It is also our duty to record the word of appreciation to the amicus curiae who assisted the Court in disposal of the appeal which was pending since last more than 12 years, and the accused was also in custody, however his assistance is acknowledged