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2020 DIGILAW 142 (MP)

Kailash v. State Of Madhya Pradesh

2020-01-25

S.K.AWASTHI, VIRENDER SINGH

body2020
JUDGMENT 1. Both these appeals have arisen out of the same judgment dated 27.08.2009 delivered by 17th Additional Sessions Judge, (Fast Track Court), Indore in Sessions Trial No.286 of 2008, therefore, they are heard analogously and are being decided by this common judgment. 2. Both the appellants have been convicted under Section 302 of IPC and sentenced to undergo life imprisonment with fine of Rs.50,000/- each, in default of payment of fine, further to undergo one year R.I. The fine amount is awarded to the widow and son of the deceased as compensation. 3. Prosecution case in brief is that on 18.02.2008 at about 2:00 in the afternoon, Mangilal was sitting in the courtyard of his house situated in VillageDannad, his son Ramesh and daughter-in-law Ramkalanbai were embroiling on some domestic dispute. They were vociferously shouting. On hearing their altercation, neighbour Kailash came to see as to what's happening. At the same time, Ramesh also came out of the room grumbling something. Kailash caught and slapped him and also pushed him down on the floor. In the meantime, Ramprasad also arrived. They both (Kailash & Ramprasad) dragged him up to the house of Mukesh beating him. They both continuously beat him by sticks till death. His son Jeewan laid on him to save him, but the appellants did not stop and gave blow of stick on his left calf. Ramesh sustained injuries on back, chest and head and succumbed. Ayodhyabai, Mahesh and Mukesh reached and rescued both of them. The appellants fled away from the spot. 4. Mahesh and Mukesh took Ramesh to the Gurjar Hospital in an Eicher vehicle, where Doctor S.K. Jain (PW-4) declared him brought dead. They took the dead body to the police station, where Mangilal lodged FIR No.41/2008 under Section 302 of IPC (Ex.P/1). Investigating Officer Arjit Patel, SHO (PW-18) investigated the matter. He visited the spot and prepared spot map Exs.P/2 & 7, prepared panchnama lash Ex.P/3, sent the dead body for postmortem and obtained postmortem report Ex.P/8. Doctor opined that the death of the deceased was due to cardio respiratory arrest due to shock caused as a result of injuries caused on the head and chest. The police also sent Jeevan for medical examination and obtained his M.L.C. report Ex.P/10. Doctor opined that the death of the deceased was due to cardio respiratory arrest due to shock caused as a result of injuries caused on the head and chest. The police also sent Jeevan for medical examination and obtained his M.L.C. report Ex.P/10. The police arrested the accused persons vide arrest memos Exs.P/11 & P/12, Recovered sticks from their possession vide Exs.P/13 & P/14, sent them (sticks) to the doctor with a query Ex.P/9-A as to whether the injuries found on the deceased may be caused by these sticks, which was replied positive. Query report is Ex.P/9. The police recorded the statements of the witnesses and after completing investigation, filed the charge-sheet. 5. Both the appellants were charged under Section 302 of IPC. They abjured their guilt and prayed for trial. After the trial, they both were convicted and sentenced as stated in para 2 above. 6. Both the appellants have preferred these appeals on several grounds but during arguments, learned Counsels representing them have submitted that they do not want to press these appeals on merits. Their only prayer is that both the appellants and the deceased belong to the same village. The incident happened all of sudden. There was no intention, preparation or premeditation on the part of the appellants. There was some altercation between husband and wife and the appellants were nothing to do with that. They, as a neighbour, intervened in good faith only with the purpose to exhort the deceased and resolve his disputed with his wife. It was petty domestic dispute, but took a hideous shape. There was some heated altercation and in that charged moment the appellants tried to overpower him with intent to control him but exceeded the power. Their was no motive to kill the deceased. Their was no enmity. The appellants acted in good faith. The offence was not committed brutally. No deadly weapon was used. Unfortunately, the deceased died but there was no intention on the part of the appellants to kill him, therefore, the case of the appellant falls within the purview of Section 304-II and not under Section 302 of IPC and, therefore, their conviction be converted accordingly and their sentence be reduced to the period already undergone, which is now about more than 10 years. 7. 7. Though the learned Public Prosecutor has opposed the prayer but has not controverted the facts stated by the learned Counsel for the appellant. 8. Facts stated by the learned Counsel for the appellants are well supported by the evidence produced by the prosecution and the documents available on the file. Facts of the case shows that the incident happened all of sudden. Both the parties belong to same village. There is no evidence of any intention, preparation or premeditation. No deadly weapon is used in the incident. The appellants have no criminal antecedent. Looking to the surrounding circumstances, the case of the appellant falls within the four corners of the offence punishable under Section 304-II of the IPC. 9. Therefore, having regard to the law laid down by Hon'ble the Supreme Court in the case of 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 ; Arjun and Anr. Vs. State of Chhattisgarh reported in AIR 2017 SC 1150 ; Elavarasan Vs. State and Mahesh Vs. State of M.P. reported in (1996) 10 SCC 668 the appeal is partly allowed. 10. The judgment and order passed by the learned trial Court is set aside to the extent that we hold the appellants guilty for committing the offence under Section 304 part II of IPC instead of the offence under Section 302 of IPC. Considering the nature of incident, gravity of the offence and keeping in view the attaining other facts and circumstances of the case, in our considered opinion, ends of justice would be sub served, if the appellants are awarded imprisonment for the period already undergone which is now more than 10 years without remission along with the fine awarded by the learned trial Court. Order awarding compensation is hereby confirmed. 11. Both the appellants are in jail. They be set at liberty forthwith, if not required in any other case, subject to depositing the fine amount imposed by the learned Trial Court, if already not deposited. 12. With the aforesaid, both the appeals stand disposed off. 13. The order of the learned Trial Court regarding disposal of case property is hereby confirmed.