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2019 DIGILAW 84 (MP)

Gulla @ Ramesh Kumar Yadav v. State of M. P.

2019-01-24

B.K.SHRIVASTAVA, HULUVADI G.RAMESH

body2019
JUDGMENT 1. This appeal under section 374(2) of CrPC has been preferred by the appellant/accused against the judgment and conviction dated 6.2.2013, passed by Special Judge, SC/ST (Prevention of Atrocities) Act, 1989, Hoshangabad in Special Case No. 132/2011 whereby the appellant has been convicted for commission of offence under section 302 of IPC and sentenced to undergo R.I for life with fine of Rs. 500, under section 323 of IPC, no separate sentence is awarded and under section 330 of IPC and sentenced to undergo R.I for three years with fine of Rs. 500/- with default stipulations. 2. The case of prosecution in brief is that the deceased Mahesh and injured Sonu were working in Dhaba of the appellant. In the night of 6.7.7.2011 the appellant and injured Sonu went to the house of Mahesh at about 11:00 p.m. and the appellant informed the deceased that a truck containing wood has come, which has to be unloaded. Mahesh thereafter accompanied the appellant and Sonu. When Mahesh did not come back, the mother of the deceased sent her son Nagin to Dhaba where he found that the dead body of Mahesh was lying there. An FIR was lodged. The police reached on the spot and subsequently it was found that the injured Sonu was sitting at a distant place with injuries on his body. He made a statement to the police, that the appellant after taking the deceased from his house, inquired from both of them about the theft of Rs. 1000/- from his pocket. When both of them denied the theft, he started beating both of them. As a result of which the injured also received injuries and Mahesh also received injury on his head apart from other injuries on his body. Injured ran away from the spot and hide himself behind the bushes. On the next day he came out of the bushes and informed about the incident. 3. The trial Court has framed the charges for the offence punishable under sections 302, 323 and 330 of IPC. The appellant abjured guilt and pleaded innocence. The prosecution has examined 11 witnesses in its support whereas the appellant has examined one witness in his defence. 4. The trial Court, on appreciation of evidence adduced by the parties, arrived at the conclusion that the appellant had assaulted the deceased over the theft of Rs. 1000/- and committed his murder. The appellant abjured guilt and pleaded innocence. The prosecution has examined 11 witnesses in its support whereas the appellant has examined one witness in his defence. 4. The trial Court, on appreciation of evidence adduced by the parties, arrived at the conclusion that the appellant had assaulted the deceased over the theft of Rs. 1000/- and committed his murder. The trial Court held the appellant guilty for commission of offence punishable under sections 302, 323 and 330 of IPC and sentenced them as mentioned hereinabove. 5. The appellant being aggrieved by the said judgment of his conviction and sentence under sections 302, 323 and 330 of IPC has preferred present appeal on various grounds mentioned in the appeal. 6. Heard arguments of learned counsel for the parties and perused the record. 7. The argument of the learned counsel for the appellant is that as per prosecution story itself, there is no premeditation or motive or intention for committing offence of murder. PW7 and PW8 are the recovery witness and recovery of wooden peg has been made and the witnesses have turned hostile. However, appellant being owner of Dhaba suspected and interrogated Sonu and other accused. Mahesh and Sonu are the deceased and the injured. The appellant is the proprietor of the Dhaba who is suspected of conduct the act of assault on these two persons deceased and Sonu who sustained injury in the incident regarding the theft of Rs. 1000/- from the pocket of appellant. Two days before this appellant suspected of theft of Rs. 1000/- by deceased and Sonu who sustained injuries and he assaulted them by the wooden pegs. As per the opinion of doctor there are several injuries. 8. However, according to the learned Government Advocate, PW6 and PW8 supported the prosecution story. Even otherwise also Sonu is also one of the injured alongwith deceased Mahesh who witnessed the incident, is shown to be reliable by the appellant/accused. Nothing has been said in cross examination to discard the evidence of injured eye witness. Injuries shown on the body of Sonu are as follows : i. Lacerated wound on left shin. ii. Swelling over right foot. iii. Swelling over right lower linl. iv. Pain and swelling over right forearm. v. No sign of injury over at left upper extremity. 9. Injuries shown on the body of Sonu are as follows : i. Lacerated wound on left shin. ii. Swelling over right foot. iii. Swelling over right lower linl. iv. Pain and swelling over right forearm. v. No sign of injury over at left upper extremity. 9. The accused/appellant was convicted for the offence under section 302 and also for offence under section 323 of IPC read with section 34 for causing injury on the body of Sonu. Both sentences are ordered to be run concurrently. 10. Learned counsel for the appellant submits that the impugned judgment suffers from illegality, as there is no reason to hold him guilty under section 302 of IPC, but, however, what we have seen in the judgment of the trial Court no order has been passed whether sentence has to run concurrently. Offence under sections 323 and 330 of IPC is for causing injuries to deceased and Sonu to compel the restoration of property. The appellant caused injuries to deceased Mahesh with an intention and motive to cause injury by wooden peg. 11. However, learned counsel for the appellant relying upon the judgment of Lakshmi Chand and another v. State of Uttar Pradesh, reported in (2018) 9 SCC 704 contended that the cattle had strayed, which took dispute between neighbours with regard to, genesis of occurrence took place on the spur of the moment without premeditation and assault was not made on vital part of body, hence conviction under section 307/34 set aside, but under section 304 part-II/34 of IPC was confirmed on the ground that no common intention to kill or cause the death with the knowledge, section 307 of IPC is being modified to section 304 part-II of IPC. 12. However, in the instant case, it is noted that few days prior to the incident having suspected of committing theft of Rs. 1000/- from the pocket of the appellant, who were working in Dhaba, were beaten by wooden pegs. 12. However, in the instant case, it is noted that few days prior to the incident having suspected of committing theft of Rs. 1000/- from the pocket of the appellant, who were working in Dhaba, were beaten by wooden pegs. However, in the judgment of Arjun and another v. State of Chhattisgarh, reported in (2017) 3 SCC 247 , it is noted that if there is intent and knowledge, then same would be a case of section 304 part-I and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then same would be a case under section 304 part-II of IPC and in the case Arjun (supra), injuries caused on head i.e. right parietal region and right temporal region and also occipital region of deceased, indicate that appellant had intention and knowledge to cause the injuries and thus, it would be a case falling under section 304 part-I of IPC. However, in that case appellant who was convicted for a offence under section 302/34 of IPC was modified to the section 304 part-I of IPC, wherein the given situation of that case deceased was cutting trees, there was exchange of words, which resulted in altercation and during said altercation, appellants attacked on deceased. Thus incident occurred due to a sudden fight, which falls under Exception 4 to section 300 of IPC. 13. In the instant case, it is noted that there is no motive to commit an offence of murder or premediation, but only suspecting for recovery of Rs. 1000/- and to ascertain return of stolen cash of Rs. 1000/- from the pocket of appellant, as such not used any dangerous weapon and assaulted deceased Mahesh and also Sonu with wooden peg. Sonu had received simple injuries and Mahesh had received injury on the head. Four injuries have been caused on Mahesh by hard and blunt object. Cause of death is due to injury in brain i.e. on vital part of the body. Knowledge can be attributed and there also appears no intention to cause death. In these circumstances the incident happened due to sudden provocation, but falls under section 304 part-I of IPC and not in section 302 of IPC. In the facts situation also regarding the fact of wooden pegs is used for commission of offence appellant is convicted for offence under section 302 of IPC. 14. In these circumstances the incident happened due to sudden provocation, but falls under section 304 part-I of IPC and not in section 302 of IPC. In the facts situation also regarding the fact of wooden pegs is used for commission of offence appellant is convicted for offence under section 302 of IPC. 14. For the reasons stated hereinabove, the conviction of the appellant under section 302 of IPC is altered to that of conviction under section 304 part-I of IPC. 15. Consequently, the appeal filed by the appellant is partly allowed. Modifying the conviction and sentence as awarded by the trial Court, we convict appellant Gulla alias Ramesh under section 304 part-I of the IPC instead of section 302 of IPC and he is sentenced to suffer life imprisonment. So far as conviction of appellant under sections 323 and 330 of IPC is concerned the appellant is held guilty under those sections and his conviction under sections 323 and 330 of IPC is upheld. The appellant is in custody since 06.07.2011 Accused/appellant has undergone almost 8 years. The period already undergone by the appellant be set off, in view of section 428 of Cr.P.C. Accordingly, the appellant be set at liberty, if not required in any other case.