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2018 DIGILAW 938 (MP)

Heman @ Hemant Mehtar v. State of M. P.

2018-11-01

MOHD.FAHIM ANWAR, P.K.JAISWAL

body2018
JUDGMENT Jaiswal, J.-- 1. This appeal has been filed by the appellant against the judgment and order dated 31.7.2009 passed by 2nd Additional Sessions Judge, Satna in Sessions Trial No. 55/2008 thereby convicting the appellant under section 302 of Penal Code, 1860 (IPC) and sentencing him to imprisonment for life along with fine. 2. Shorn of details, the appellant was tried for the offence under section 302 of IPC by 2nd Additional Sessions Judge, Satna. The case of the prosecuti on is that deceased-Asarfilal was residing at Basore Basti of Purswani Sindhi Mohalla, Satna along with his mother. Smt. Lichchu Basore (PW 1) and Smt. Maya Basore (PW 2), sisters of the deceased was residing around the same locality. Appellant-Heman alias Hemant Mehtar was known to the deceased. On 18.12.2007 at about 2:30-3:00 p.m., Smt. Muniya (PW 6) had seen the deceased roaming around/nearby his house. Thereafter at 5:00 p.m., in the evening, Karan Basore (PW 3) came to the house of the deceased, at that time, his grandmother was not there in the courtyard (aagan) of the house and saw that deceased was lying down on the floor of the room and the appellant was causing stone injuries (patthar ki siloti) to him, however, due to fear he left the place of incident and narrated the incident to her mother-Lichchu Basore (PW 1). Thereafter Lichchu Basore (PW 1), Maya Basore (PW 2), Karan Basore (PW 3), Golu Basore (PW 4) came at the place of occurrence and on seeing the dead body of the deceased, they started shouting. On hearing their shriek, number of persons came to the place of occurrence, thereafter, marg intimation (Ex. P-1) and FIR (Ex. P-2) was lodged by her. After recording the police statement, investigation proceeded and charge sheet has been filed against the appellant before the Judicial Magistrate First Class, Satna who committed the case to the Court of Session from where the matter was committed to trial Court for trial. The trial Court framed charge under section 302 of IPC. The appellant abjured his guilt and prayed for trial. 3. The trial Court after analysing the evidence on record, convicted the appellant under section 302 of IPC and sentenced him to suffer imprisonment for life along with fine. 4. The trial Court framed charge under section 302 of IPC. The appellant abjured his guilt and prayed for trial. 3. The trial Court after analysing the evidence on record, convicted the appellant under section 302 of IPC and sentenced him to suffer imprisonment for life along with fine. 4. Lichchu Basore (PW 1), Maya Basore (PW 2) and Smt. Muniya (PW 6), mother and both sisters of the deceased had seen the accused/appellant running from the place of occurrence. Karan Basore (PW 3), a child witness, was the sole eye witness of the incident. As per his statement, the appellant has caused fatal injury to the deceased which has been medically corroborated by Dr. G. P. Singh (PW 9). As per medical report, deceased sustained the following injuries: “(1) Contusion - 4 ½ x 2” transverse almost all over forehead. (2) Lacerated wound - 1 ½” x ½” x bone deep lateral to left eye on face.” Cause of death is shock due to head injury. It is a case of single injury. Due to injury No. 1, there was fracture of parietal skill in two inches. 5. Learned counsel for the appellant has submitted that Karan Basore (PW 3) is an interested witness. As per para -6 of his statement, when he was going to meet his mother Lichchu Basore (PW 1), he saw number of persons in between, but, he did not narrate the incident to them which shows that he is interested witness and after meeting his mother, the aforesaid story was cooked up and false allegation has been made against the appellant, the learned trial Court has committed an error in relying the evidence of interested witnesses. To support his contention, he has drawn our attention to the judgment of the apex Court in S. K. Yusuf v. State of West Bengal, AIR 2011 SC 2283 and prayed that the impugned judgment be set aside and the appellant may be acquitted from the charge under section 302 of IPC. 6. To support his contention, he has drawn our attention to the judgment of the apex Court in S. K. Yusuf v. State of West Bengal, AIR 2011 SC 2283 and prayed that the impugned judgment be set aside and the appellant may be acquitted from the charge under section 302 of IPC. 6. Per contra, Shri Rai, learned Public Prosecutor, has drawn our attention to the statement of Karan Basore (PW 3) and submitted that his statement has been medically corroborated and Lichchu Basore (PW 1), Maya Basore (PW 2), Smt. Muniya (PW 6) had also seen the accused/appellant running from the house of the deceased, thus, it cannot be said that Karan Basore (PW 3) is interested witness, therefore, his statement is not reliable and prayed for dismissal of the appeal. 7. According to respondent/State, finding recorded by the Court below is supported by the evidence on record which has involved the appellant in commission of the offence and does not warrant any interference. 8. If we go through the statement of all the material prosecution witnesses, there was no enmity between the appellant and deceased. It is a case of single injury. We have carefully considered the oral evidence adduced by the prosecution, particularly evidence of Lichchu Basore (PW1), Maya Basore (PW2), Smt. Muniya (PW6) and Karan Basore (PW3) who was sole eye witness of the incident who saw that deceased was assaulted by appellant with hard and blunt object to which deceased succumbed. In addition to the said oral evidence, other circumstances also linked towards the complicity of the appellant in commission of the crime and the nature of injury suffered by the deceased attributable to the assault by the same hard and blunt object by the appellant. We find that the trial Court has justly analyzed the evidence about the complicity of the appellant in commission of crime. 9. Notably, the evidence on record plainly establishes that there was no fight. It is a case of single assault by the appellant causing serious head injury. There is no shred of evidence, much less even a remote suggestion that appellant had assaulted the deceased with an intention to cause death. At the present, the appellant has completed more than 11 years of jail sentence. It is a case of single assault by the appellant causing serious head injury. There is no shred of evidence, much less even a remote suggestion that appellant had assaulted the deceased with an intention to cause death. At the present, the appellant has completed more than 11 years of jail sentence. After considering the facts and circumstances of the case and the legal position which has been emerging in the present case, we are of the view that the case would fall under section 304 Part -I of IPC instead of section 302 of IPC. 10. In the instant case, it is evident from the material on record that the appellant had no intention of causing the death of the deceased when he committed the act in question. Apart from the incident being the result of a sudden quarrel without premeditation, the law requires that the offender should not have taken undue advantage or acted in a cruel or unusual manner to be able to claim the benefit of Exception I to section 300 IPC. 11. As per evidence which has come on record, it has been duly proved that there is sufficient material to infer the reasonable possibility of grave sudden quarrel, it can be safely inferred that there was no intention on the part of the accused to cause death. However, the injuries on head did prove fatal and knowledge of such effect of the injuries can be fastened against the appellant, the case made out is that of culpable homicide not amounting to murder. 12. At present the appellant has completed about eleven years of jail sentence. The appellant is held guilty for the offence under section 304 Part I of IPC and sentence of rigorous imprisonment for life is reduced and altered to the period of incarceration already undergone by the appellant with fine imposed by the trial Court, in default to undergo further rigorous imprisonment for four months. 13. Accordingly, the appeal is allowed in part to the extent indicated herein above. The appellant is in jail, he be released forthwith, if not required in any other case.