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2019 DIGILAW 500 (MP)

BANESINGH s/o ANARJI SONDHYA v. .

2019-07-09

S.C.SHARMA, VIRENDER SINGH

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JUDGMENT VIRENDER SINGH, J. – Disgruntled with his conviction under section 302 of the Indian Penal Code vide judgment dated 26-6-2007 delivered in Sessions Trial No. 13/2007 by Sessions Judge, Rajgarh (Biaora), the appellant has preferred this appeal. 2. Co-accused Lakhan, who is son of the present appellant was tried before Juvenile Justice Board as he was juvenile at the time of the incident. 3. Succinctly stated prosecution case is that Ramkala Bai was earlier engaged with co-accused Lakhan, but this relation could not be continued and after some dispute, as per the decision of village Panchayat, engagement was ended up for which father of Ramkala Bai also paid compensation to the parents of Lakan. On 27-11-2006, Lakhan went on the field of Ramkala Bai, where she was alone. She asked as why he has come on her field. He replied that he is thirsty and want some water but Ramkala Bai asked him to go back, as she was alone at the field. She addressed Lakhan the way used to address the younger one ^^rq [ksr is D;k ysus vk;k gSaA** Annoyed by the way Ramkala Bai addressed him, towards him Lakhan along with his father Banesingh (appellant) reached home of Ramkala Bai. They both started abusing her. At that moment, her brother, Bhagwan Singh (Deceased) came at home. He heard abuses hurled by Banesingh and Lakhan and asked them as to why they are abusing his sister. Suddenly, Banesingh took out a knife and gave a blow on the back of Bhagwan Singh who fell down on the floor. Lakhan also inflicted “Ballam” twice on the chest of the deceased. Ramkala Bai yelled and called neighbours. Chotelal immediately reached there. Seeing him, both the accused persons fled away. Dilip and Bapulal also reached on the spot. They both picked up injured Bhagwansingh and rushed to District Hospital, Rajgarh by motorcycle, where doctors declared him brought dead. 4. Immediately after the incident, Chotelal reported the matter to the police station Rajghar (FIR Ex.P/3). The police station Rajgarh registered crime No. 377/06 under section 302/34 of the Indian Penal Code. Visited the spot, issued notices to the witnesses, prepared memo of corpse Ex.P/4, prepared spot map, seized plain and blood smudged soil, also seized shoes and sari and Petticoat of wife of deceased Bhagwansingh. During investigation, the police arrested both the accused persons. Recovered knife and Ballam from their possession. Visited the spot, issued notices to the witnesses, prepared memo of corpse Ex.P/4, prepared spot map, seized plain and blood smudged soil, also seized shoes and sari and Petticoat of wife of deceased Bhagwansingh. During investigation, the police arrested both the accused persons. Recovered knife and Ballam from their possession. The police sent all these articles to the FSL vide letter Ex.P14 and received reports Ex.P/17 and 19. After completing investigation, the police filed charge sheet. 5. The appellant was charged under section 302 in alternate 302/34 of the Indian Penal Code. After the trial, he was held guilty for the offence under section 302/34 of the Indian Penal Code and awarded life imprisonment with fine of Rs. 1,000/- in default of payment of fine further to undergo rigorous imprisonment of three months. 6. The appellant has preferred this appeal on the ground that that the judgment of the learned trial Court is contrary to the law and facts available on record. The learned trial Court has committed error in appreciating the evidence of the prosecution and in relying upon the statements of interested witnesses and in discarding the defense version. The learned trial Court committed error in not appreciating that no evidence regarding intention or motive was available on record, therefore, the appellant is entitled for acquittal. 7. The prosecution has examined sister of deceased Bhagwansingh, Ramkala Bai PW/3, mother Dhapu Bai, neighbour Pyaribai PW/4 and Chhotulal PW/2 as eyewitnesses. Ramkala Bai, who was center of the dispute and had faced the entire incident since start has clearly depicted before the trial Court the incident in the manner it happened and the assault made by both the accused persons. Her statement is well supported by her mother Dhapu Bai PW/5 and substantially supported on material points by neighbour Pyari Bai PW/4 and Chhotulal PW/2. The trial Court has appreciated all the evidence and reached on the logical conclusion that all these witnesses have stated truth before the Court and this truth is well supported from the circumstances established by the evidence collected during the investigation and also by medical evidence in the form of statement of Doctor Pradeep Kumar Jain PW/1 and his post mortem report Ex.P/1. This evidence further finds support in the statement of investigation I.O. Shiv Narayan Singh Gaur PW/7 and the document prepared by him during the investigation. 8. This evidence further finds support in the statement of investigation I.O. Shiv Narayan Singh Gaur PW/7 and the document prepared by him during the investigation. 8. Contradictions/discrepancies appeared in the statement of the witnesses in respect of arm used in the incident by co-accused person Lakhan, in respect of its recovery, also in respect of hostility of eye-witness Pyari Bai PW/4, is discussed by the trial Court. It is held that the FIR was lodged immediately after the incident by one of the witnesses who reached on the spot immediately after the incident. Statement of witnesses recorded by the police on the same day in the night, post mortem was conducted on the next day and there is no discrepancies in all these evidences on any material points, rather, they all support each other and very well helpful in arriving at a conclusion of guilt of the accused. 9. The alternate plea is taken by the defense that it is a case of sudden quarrel. There is no pre-meditation, intention or preparation to cause death and there was no motive also. The incident happened all of a sudden. It started not on the basis of malice but on the petty issue of asking water or addressing in a way, it was felt disrespectful. The appellant is the father of the main accused Lakhan who is juvenile. The allegation against the appellant is that he caused injury by knife on the back of the deceased and it was not the cause of death of the deceased. Recovery of knife was not found proved by the trial Court itself (para No. 22 of the impugned judgment). Main allegation is against his son, who according to the prosecution case caused injuries on the chest, therefore, his case is squarely covered under section 304 part II of the Indian Penal Code and the trial Court has erred in convicting him for the offence under section 302/34 of the Indian Penal Code, therefore, his conviction be converted into section 304 part II of the Indian Penal Code. The appellant is in jail since 27-11-2006 and has already served out sentence of 12 year 07 months therefore, his sentence to reduced to the period already undergone. 10. The aforesaid facts are not controverted by the learned public prosecutor. The appellant is in jail since 27-11-2006 and has already served out sentence of 12 year 07 months therefore, his sentence to reduced to the period already undergone. 10. The aforesaid facts are not controverted by the learned public prosecutor. In view of the plead of the appellant and the facts narrated above in the background of the law laid down by the Hon’ble Supreme Court in Madhavan and ors. vs. State of Tamil Nadu, reported in AIR 2017 SC 3847 , Sikandar Ali vs. State of Maharashtra, reported in AIR 2017 SC 2614 and Arjun and anr. vs. State of Chhattisgarh, reported in AIR 2017 SC 1150 , in our considered opinion the act of the appellant satisfies the four requirements necessary to invoke the powers namely, (i) it was a sudden fight; (ii) there was no premeditation; (iii) the act was done in a heat of passion; and (iv) the assailants had not taken any undue advantage or acted in a cruel manner and therefore, the case of the appellant falls under section 304 Part-II of Indian Penal Code instead of section 302 of the Indian Penal Code. 11. Consequently, the appeal is partly allowed. The appellant is held guilty for the offence under section 304 Part-II of the Indian Penal Code instead of section 302/34 of the Indian Penal Code. 12. Considering the nature of the incident, and other prevailing facts and circumstances of the case, we find that the ends of justice would be sub-served by awarding sentence for the period already undergone with fine awarded by the trial Court. In default of payment of fine, he shall further to undergo RI of 1 (one) month. 13. The order of the trial Court regarding disposal of the property is hereby confirmed. 14. The appellant be set free, if not required in any other case, subject to deposit of fine amount. 15. With the aforesaid modification, the appeal is partly allowed and disposed of.