Research › Search › Judgment

Madhya Pradesh High Court · body

2025 DIGILAW 289 (MP)

Dinesh Kumar v. State of Madhya Pradesh

2025-04-28

DEVNARAYAN MISHRA, VIVEK AGARWAL

body2025
JUDGMENT : Devnarayan Mishra, J. This appeal under Section 374(2) of the Code of Criminal Procedure has been preferred by the appellants being aggrieved with the judgment of conviction and sentence dated 24.03.2023 passed by learned Additional Sessions Judge Bareli, District-Raisen (M.P.) whereby the appellants have been convicted for the offence punishable under Section 302/149 of the Indian Penal Code and sentenced to undergo R.I. for Life Imprisonment with fine of Rs.1,000/- with default stipulation. 2. In nutshell, the prosecution case before the trial Court was that on 02.07.2017 Hoshiyar Singh (PW-1) informed the Police that Dinesh and his father Madan Lal are the real brothers and his father had sold the land to pay the loan of the family and, in the name of accused Dinesh, there was nine acres of agricultural land, in which, he was not giving share to his father. On 02.07.2017, the deceased Madan Lal along with PW-1 went on the field to plough the field, appellant along with the other persons were present there and started assaulting the deceased with danda and iron rod and also assaulted Hoshiyar Singh (PW-1) as a result, both of them suffered injuries. The victim and the deceased were sent for medical examination. Deceased being serious was referred to Bhopal. He was carried to Bhopal Hospital and when he reached there, the doctor declared him brought dead. The dead body was brought returned to CHC Badi, District-Raisen where autopsy was conducted on the dead body. The case was registered and statements of witnesses were recorded. 3. During investigation, spot map was prepared and the blood stains soil and other articles were recovered from the spot. The appellants were arrested and from their possession, the arms used in the offence were recovered and charge-sheet was submitted before the Judicial Magistrate First Class, Badi. On commitment, the case was submitted before the Sessions Judge and on transfer, the case was transferred to trial Court. 4. The trial Court framed the charges under Sections 148, 325/149, 302/149, 294, 506 of the Indian Penal Code and read over to the appellants along with acquitted co-accused person. The appellants and other co-acquitted person abjured the guilt and prayed for trial. 5. The trial Court recorded the prosecution evidence and examined the appellants under Section 313 of the Code of Criminal Procedure. The appellants and other co-acquitted person abjured the guilt and prayed for trial. 5. The trial Court recorded the prosecution evidence and examined the appellants under Section 313 of the Code of Criminal Procedure. The appellants have raised the defence that the deceased along with his son Hoshiyar Singh (PW-1) forcibly wanted to take the possession of the agricultural land that was only in the possession and ownership of the appellant Dinesh. Deceased and Hoshiyar Singh (PW-1) assaulted the appellant Dinesh, in which, appellant Dinesh had also suffered the injury and examined the defence witnesses as appellant Dinesh Kumar (DW-1) himself and Ghanshyam Sahu (DW-2) and Kamlesh Kumar (DW-3). 6. Trial Court after hearing both the parties passed the impugned judgment by which, acquitted Karobai and convicted and sentenced the appellants as stated in para no.1 of the judgment. Hence, this appeal has been filed. 7. Learned counsel for the appellants has submitted that the trial Court has wrongly convicted the appellants and the deceased and his son Hoshiyar Singh (PW-1) went to take possession of the land by force and the appellant Dinesh and his relatives went on the spot to pursue the deceased and his son not to take the possession of the land as the land was of his share but the deceased and his son tried to forcibly cultivate on that land. The protest was made in which, the deceased fell down on cultivator and suffered the injury. The appellants have not caused any injury and on the false basis, the F.I.R. was lodged. 8. Learned counsel for the appellants has further submitted that there was no common intention. The injuries suffered by the victim were not of a such nature that were sufficient to cause death of a person. In that situation, hence they have not exceeded the right to private defence and in that situation, as they have exercised their rights to private defence, they are not liable for any offence and by examining the defence witnesses and admission of the prosecution witnesses, it is clear that the deceased give the opportunity to right to private defence. Hence, the appeal be allowed and the appellants be acquitted. 9. Learned Government Advocate has submitted that the trial Court after due appreciation of evidence, passed the impugned judgment, hence, no interference is called for. 10. Hence, the appeal be allowed and the appellants be acquitted. 9. Learned Government Advocate has submitted that the trial Court after due appreciation of evidence, passed the impugned judgment, hence, no interference is called for. 10. On the point, injury suffered by the deceased and the victim, Dr.Saket Verma (PW-9) has stated that on 02.07.2017, he was posted as a Medical Officer in Community Health Centre, Badi. Injured Madan Lal, s/o Halke Bhaiya, aged about-40 years was brought by Constable Dilip Singh Number 484 at 11:00 am. He found injuries in the left occipital, right parietal forehead in both hands, in right leg, in which, the three injuries were simple and for four injuries, he advised the x-ray examination. On the same day and same time, injured Hoshiyar Singh (PW-1), s/o Madanlal was also brought and on medical examination, he found injuries on left hand admeasuring 8 x 3 cm, right forearm contusion and in the right and left forearm. He further states that after death of Madan Lal, he conducted the autopsy on the dead body of the deceased Madan Lal at 05:00 pm and has described the injuries as below:- (a) Lacerated wound admeasuring 5 x 0.5 cm in the left side of occipital region; (b) Lacerated wound admeasuring 4x 0.5 cm in the right parietal region; (c) Abrasion of 1x1 cm in right side of forehead; (d) Lacerated wound admeasuring 2x.5 and 3x0.5 cm in the right arm, (e) Lacerated wound 2x 0.5 cm in the right dorsal of right hand; (f) Lacerated wound in the left forearm 1x0.5 cm; (g) Lacerated wound 3x0.5cm, a lower 1/3 of right leg. 11. Dr. Saket Verma (PW-9) has opined that there were no other injuries on the body and the deceased died due to excess hemorrhage and shock due to these injuries and denied the suggestion that if he would had treated properly, the deceased would not have died. 12. In conclusion, the deceased suffered only three injuries on the head and rest injuries were caused in hand and leg. In the same way, Hoshiyar Singh (PW-1) suffered injuries in legs and heads and the injuries were simple in nature and the deceased Madanlal died on the same day. 13. 12. In conclusion, the deceased suffered only three injuries on the head and rest injuries were caused in hand and leg. In the same way, Hoshiyar Singh (PW-1) suffered injuries in legs and heads and the injuries were simple in nature and the deceased Madanlal died on the same day. 13. On the point who caused injuries to the deceased, dehatinalishi (Exhibit-P/1) that was recorded by Hoshiyar Singh (PW-1), the injured witness has clearly admitted that he informed the Police on that basis, dehatinalishi (Exhibit-P/1) was recorded. In dehatinalishi (Exhibit-P/1) that has also been proved by R.P. Saxena (PW-16a) A.S.I. that on 02.07.2017. He recorded dehatinalishi (Exhibit-P/1) in Civil Hospital, Badi and from the cross-examination, content of the F.I.R has been verified by the defence. As per dehatinalishi (Exhibit-P/1) that was firstly lodged in the hospital while the deceased and the injured Hoshiyar Singh (PW-1) were brought just after the incident and in that Hoshiyar Singh (PW-1) has stated that on 02.07.2017 at 09:00 am, PW-1 along with his father Madan Lal went to plough the field of Kanwar wala khet and he was driving the tractor. The appellants namely Dinesh, Tulsiram, Than Singh, Chain Singh reached on the spot, armed with danda and farsha and started abusing them and when he stopped the tractor and objected to abuse, appellant Dinesh assaulted with danda to Madanlal and Than Singh with rod and when he intervened, Tulsiram and Chain Singh assaulted him with danda. This was the whole story as put up by the prosecution. 14. One thing that has to be worth mentioned is that in dehatinalishi (Exhibit-P/1), it has been clearly mentioned that the father of the complainant Hoshiyar Singh (PW-1) had sold part of his land to pay the loan and nine acres of the land was in the share of his uncle Dinesh (appellant) and he was not giving share in that agricultural land. 15. Witness Hoshiyar Singh (PW-1) in his cross-examination has admitted that his father were two brothers. His father was elder and appellant Dinesh is younger. His father and uncle have two sisters whose names are Nirmala and Basanti. One month prior to the incident, the family partition was done between Madanlal and Dinesh and written memo of partition was prepared. 15. Witness Hoshiyar Singh (PW-1) in his cross-examination has admitted that his father were two brothers. His father was elder and appellant Dinesh is younger. His father and uncle have two sisters whose names are Nirmala and Basanti. One month prior to the incident, the family partition was done between Madanlal and Dinesh and written memo of partition was prepared. The partition was made in presence of Than Singh and Jawahar Singh, Bhojraj and Lakhan of Village-Uthiya and the written document was prepared by Tulsiram. 16. This witness has further admitted in paragraph no.8 of the cross-examination that joint family were having two tractors one of Mahendra Company make and another make of HMT Company. He has stated that he is not knowing that Mahendra Company Tractor came in the share of his father and HMT Company Tractor came in the share of Dinesh and admitted that his father has brought both the tractors at Badi and as a result, his father got both the tractors and Dinesh was having no tractor. This witness has further admitted in paragraph no.10 of the cross-examination that from Badi Town to Jatanpur, the distance is 8 kilometer. Before partition, his father was having 14 acres of land, the distance between Jatanpur and Kanwar is of 1 kilometer. He is not having the knowledge that his father got agricultural land of which village and admitted that the appellant Dinesh got the share of land at Kanwar in partition whose area is admeasuring 5.7 acres. He showed that he could not disclose how much land his grand parents has kept for their maintenance. This witness in paragraph no.12 has stated that he has not aware that his father has sold whole share of the agricultural land. 17. Witness Pankaj Lowanshi (PW-2) who is the real brother of Hoshiyar Singh (PW-1) and son of the deceased Madan Lal though not eye- witness but has supported the prosecution and in the cross-examination, this witness has also admitted that in the family partition between his father and the appellant/uncle Dinesh had taken place 1-1.5 year prior to dispute. This witness has also admitted that before the partition, there were two tractors in the family. In the partition, partition memo was prepared in the written form and share of property was described in that. This witness has also admitted that before the partition, there were two tractors in the family. In the partition, partition memo was prepared in the written form and share of property was described in that. He has further admitted that each brother got a tractor in the partition and also admitted that his father carried the second tractor also and also admitted that in Village-Badi, whole residential house was given in the share of his father and no share was given to his uncle Dinesh and also admitted that in Village-Jatanpur, half of the residential house was given to his father and half to his uncle. This witness has also admitted that his grandparents have kept 2.5 acres of land in their possession and ownership for their maintenance and rest of the land was distributed between his father and uncle and this witness has also admitted that the agricultural land of Jatanpur was given in the share of his father and he also admitted that the land of village Kanwar was being cultivated by his uncle. 18. Further, this witness Pankaj Lowanshi (PW-2) has admitted that his father had sold land of his share to Shyam Singh, s/o Gyarsilal, r/o of Village-Udiyakhurd on 08.09.2016 and has stated that it was sold to pay the family loan. 19. Thus, these witnesses, who are the sons of the deceased Madan Lal have admitted that family partition had taken place and the agricultural land on which, the dispute arose was in the share of Dinesh and this fact has also been supported by the Revenue Authority, Nagma Shah (PW-15), who was the Halka Patwari of that village and has clearly stated that Survey No.105/2 was of the ownership and possession of Dinesh Kumar, s/o Halke Lal and in the cross-examination, this witness has admitted that Survey No.20/2 of Village-Jatanpur agricultural lands belongs to Madan Lal that was sold to Shyam Singh in 2016-17. The disputed agricultural land was given in the share of Dinesh, he was having possession and was cultivating that field. Thus, from the documentary and oral admissions, it is clear that the land on whose possession the dispute has arisen was in the ownership of Dinesh and he was possession holder of that land. From the statement of complainant itself, it is clear that the deceased and Hoshiyar Singh (PW-1) went to plough that field. Thus, from the documentary and oral admissions, it is clear that the land on whose possession the dispute has arisen was in the ownership of Dinesh and he was possession holder of that land. From the statement of complainant itself, it is clear that the deceased and Hoshiyar Singh (PW-1) went to plough that field. Furthermore, this fact has been also proved by the defence witness Ghanshyam Das Sahu (DW-2) that he has purchased the land of share of Madanlal from the deceased Madanlal. 20. Regarding the conduct of the deceased, it is also clear that in family partition, he got one tractor but he has also taken another tractor that was given to appellant Dinesh. The land of his share was sold by the deceased to other persons and he forcibly wanted to take possession of the land that was ownership/possession of the appellant Dinesh. 21. One things further that is very material in the case is that Bhojraj, s/o Madanlal is the real maternal uncle of the deceased Madanlal and appellant Dinesh. Than Singh is son of Dinesh and they were not having dispute with the deceased or the appellant Dinesh. This has also been admitted by this witness Hoshiyar Singh (PW-1) that appellant Chain Singh is the son of Bhojraj. 22. In the cross-examination, this witness Hoshiyar Singh (PW-1) has stated that he has narrated to the Police while dehatinalishi was being recorded that Ram Charan has assaulted by danda and Santosh with knife and Bhojraj assaulted his father with rod and Chain Singh with pipe and all these facts were contradicted from the report of Exhibit-P/1 and also confronted to prosecution witness R.P. Saxena (PW-16a) and he has denied that these facts were stated by the complainant. 23. In this factual position, it is clear that after lodging the dehatinalishi, when the father of the victim died, they had implicated more and more persons. From the situation, that has brought on record, it appears that the deceased along with his son went to take the possession of the land that was in the share of appellant Dinesh and Dinesh along with his relations went on the field and protest and protect his field and on that, the quarrel has started there in which, the deceased and victim have suffered the injuries. 24. 24. The persons who were present on the spot, the complainant Hoshiyar Singh (PW-1) has stated that all the persons i.e. Dinesh, Than Singh, Tulsiram and Chain Singh assaulted Madan Lal and to him. The conduct of the deceased was that his mother and father have also lodged an F.I.R. against the deceased as admitted by Pankaj Lowanshi (PW-2) in paragraph no.2 of his cross-examination. In that also, it was mentioned that Shashi Bai lodged an F.I.R. stating that after partition, Madan Lal wanted to take possession of the land of the share of Dinesh and his parents. In that situation, when the deceased went to take possession of the dispute land of the appellant Dinesh, he along with his family members went and the dispute had suddenly taken place. 25. The two facts appeared that the injuries were caused to the deceased and the complainant Hoshiyar Singh (PW-1) as a right to private defence as provided in Section 97(ii) of the Indian Penal Code but as per Section 103 of the Indian Penal Code right to private defence was not upto causing the death of the person and was limited within Section 99 of the Indian Penal Code. 26. One another thing is also worth mentioned that the quarrel has suddenly taken place and the injuries were caused by danda and lathi and it appears from the whole case that there was no preparation as no weapon of endangering nature were used. 27. It is also clear that Hoshiyar Singh (PW-1) has stated that Than Singh came with tractor and stopped his tractor by parking the tractor infront of his tractor and Bhojraj caught the collar of his father and thrown him down and Bhojraj also assaulted his father by danda and Dinesh assaulted with hand, fist and rod, Chain Singh with pipe, Santosh with knife, Ramcharan with danda and when he went to rescue his father, Than Singh and Tulsiram have assaulted him but as stated above, these facts were not mentioned in the dehatinalishi (Exhibit-P/1). On dehatinalishi, it is mentioned that Dinesh has assaulted the deceased with danda and Than Singh also assaulted the deceased and Tulsiram and Chain Singh assaulted the victim and in that Hoshiyar Singh suffered the simple injuries. 28. On dehatinalishi, it is mentioned that Dinesh has assaulted the deceased with danda and Than Singh also assaulted the deceased and Tulsiram and Chain Singh assaulted the victim and in that Hoshiyar Singh suffered the simple injuries. 28. The trial Court has wrongly convicted all the appellants whereas, the role of Ramcharan, Santosh and Bhojraj has nowhere mentioned in dehatinalishi (Exhibit-P/1) and if all these persons have assaulted the deceased, the injured have suffered more injuries, whereas, the injuries suffered by the deceased were number of seven in which, the injury on the head proved the fatal and complainant (PW-1) has also suffered the simple injury which, he had stated were caused by Tulsiram and Chain Singh and also stated about the relationship between the parties and also stated that there was no preparation and the quarrel has suddenly taken place and the appellant exceeded the right to private defence, the act of the appellants comes under the purview of culpable homicide not amounting to murder. 29. The trial Court has also convicted the appellants for causing the grievous injury to Hoshiyar Singh but no doctor was examined to prove the x-ray report and without formal proof of the x-ray report, the trial Court has committed error in considering that document. Hence the conviction of the appellants under Section 325 of the Indian Penal Code is converted to Section 323 of the Indian Penal Code. 30. The trial Court, has convicted the appellants with the help of Section 149 and also convicted for the offence punishable under Section 148 of the Indian Penal Code but as stated above, after appreciation, it has been found that only four persons were involved in the offence. Thus, the number of accused persons/appellants came to four and to constitute unlawful assembly, the number of accused persons must be five or more than five persons and in this aspects, the appellants could not be convicted with the help of Section 149 of the Indian Penal Code. But the charge of Section 34 of the Indian Penal Code has not been separately framed but if the charge of Section 149 of the Indian Penal Code is already framed, then the appellants can be convicted for the offence with the help of Section 34 of the Indian Penal Code. 31. Thus, the appellants Ram Charan, Santosh and Bhojraj are acquitted from all the charges. 32. 31. Thus, the appellants Ram Charan, Santosh and Bhojraj are acquitted from all the charges. 32. Regarding the act of appellants namely Dinesh, Chain Singh, Than Singh and Tulsiram is that they were present on the spot and exceeded the right to private defence, but looking to the fact that the quarrel took place suddenly, the appellants could not be convicted for the offence punishable under Section 302 of the Indian Penal Code as held by the Hon'ble Apex Court in the cases of Moorthy Vs. State of Tamil Nadu (2009)16 SCC 443 and State of Rajasthan Vs. Manoj Kumar (2014) 8 S.C.R 589, held that when the incident occurred pursuant to altercation over ownership and possession of the property and death was caused a person and the three persons were accused and one person had fired a gunshot, other two persons were acquitted, the Apex Court has also held that when other persons are accompanied who exceeded the right of private defence, if the accused persons had done any overt act, then constructive liability, as envisaged under Section 34 of the Indian Penal Code, would be attracted. 33. In this case, there is active participation of the appellants. Hence, the conviction of the appellant no.1 Dinesh Singh, appellant no.2 Chain Singh, appellant no.3 Tulsiram and appellant no.4 Than Singh is converted from Section 302/149 to Sections 304(Part-I) read with 34, 323/34 of the Indian Penal Code. All the above appellants are acquitted from the offence punishable under Section 148 of the Indian Penal Code. Further, the appellants namely Ram Charan, Santosh and Bhojraj are acquitted from all the charges. 34. Looking to the facts and circumstances of the case, Dinesh Singh, Chain Singh, Tulsiram and Than Singh shall undergo R.I. for 7 years for the offence punishable under Section 304(Part-I) read with 34 of the Indian Penal Code and fine of Rs.1,000/- and in default of depositing the fine amount, they shall further undergo R.I. for 03 months and for the offence punishable under Section 323 of the Indian Penal Code, each of the above appellants shall undergo R.I. for 06 months and fine amount of Rs.1,000/- and in default of depositing the fine amount, they shall further undergo R.I. for 03 months. 35. With the above observations, the appeal is partly allowed. 36. Bhojraj, Ram Charan and Santosh are already on bail, their bail bonds shall discharge. 35. With the above observations, the appeal is partly allowed. 36. Bhojraj, Ram Charan and Santosh are already on bail, their bail bonds shall discharge. If fine amount deposited by them that shall be refunded to them. 37. Appellant Chan Singh, Tulsiram, Than Singh shall surrender before the trial Court to serve the remaining jail sentence in default. 38. The trial Court shall make arrested the appellants and sent to the jail to serve the remaining jail sentence. 39. The case property is disposed of as per the judgment of the trial Court. 40. With the copy of judgment, the record of the Trial Court be returned back.