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2025 DIGILAW 312 (MP)

Bhaiyalal Adivashi v. State of M. P.

2025-05-09

DEVNARAYAN MISHRA, VIVEK AGARWAL

body2025
JUDGMENT Per: Justice Vivek Agarwal 1. Shri Prakhar Naveriya, learned counsel for the appellant does not wish to press I.A. No.28046/2023, which is an application for suspension of sentence and grant of bail to appellant and prays for hearing the appeal finally. 2. Accordingly, I.A. No.28046/2023 is dismissed as not pressed. 3. With the consent of the learned counsel for the parties, this appeal is heard finally. 4. This criminal appeal under Section 374(2) of the Code of Criminal Procedure, 1973 is filed by appellant being aggrieved of the judgment dated 30.1.2023 passed by the learned VIII Additional Sessions Judge, Sagar, District-Sagar (M.P.) in Sessions Trial No.180/2021, whereby the appellant has been convicted for the offences punishable under section 302 of Indian Penal Code, 1860 and sentenced to undergo for life imprisonment and fine of Rs.500/- with default stipulation of additional R.I. for 01 year and section 323 of Indian Penal Code, 1860 and sentenced to undergo R.I. for 06 months. 5. It is submitted that appellant is innocent. It is a case of single blow. According to the prosecution story, complainant Devki Saur (PW-2) had lodged a report on 13.2.2021 at Moti Nagar Police Station that she is resident of village Bhapel where she was residing with her Nanand Savitri Bai. On 8.2.2021 at about 10-11:00 pm, when she was sitting with her Nanand Savitri Bai in her house at Bhapel then her brother-in-law (Nandoi) accused Bhaiyalal Saur came under the influence of alcohol. Savitri Bai asked him to take his dinner but he did not respond when she asked the complainant (PW-2) to ask him to take dinner but on account of some altercation appellant had taken up a Lathi and had hit Savitri Bai on her head. 6. It is submitted that MLC was carried out at District Hospital Sagar, as contained in Ex.P-5, wherein Dr. Devesh Pateriya (PW-8) observed that there is a history of assault, there was superficial lacerated wound measuring 3x2 cm subcutaneous deep present over right parietal region situated just right lateral to middle. Thereafter, X-ray of skull was taken out and it was found that there was a linear fracture over left parietal and left temporal bone and no bony injury was found on the chest of the victim as is evident from an Ex.P-7. 7. Thereafter, X-ray of skull was taken out and it was found that there was a linear fracture over left parietal and left temporal bone and no bony injury was found on the chest of the victim as is evident from an Ex.P-7. 7. As far as complainant Devki Saur (PW-2) is concerned, her preMLC is Ex.P-8 in which it is mentioned that no bony injury was found. Postmortem report is Ex.P-17 proved by Dr. Rajendra Barav (PW-13) which was carried out at Gandhi Medical College, Bhopal and in the postmortem report, cause of death is mentioned as due to intracranial hemorrhage as a result of head injury caused by hard and blunt object. It is also mentioned that evidence of surgical intervention is present and evidence of hospitalization also present. Thus, it is evident that incident took place on 8.2.2021, it is evident from postmortem report (Ex.P-17) that she died on 12.2.2021 and thereafter, FIR (Ex.P-20) was recorded. 8. Kiran Saur (PW-1), has stated in para-1, of her examination-inchief, that deceased Savitri was earlier married at village in Nirtala Police Station Khurai, thereafter, she was residing with her brother i.e. Bhaiyalal at village Bhapel. The house was given by the family. She was at her residence and she had received phone call from Manish nephew of Kalabai. 9. It is mentioned by Kiran Saur (PW-1) that Devki (PW-2) used to live separately from her husband and on some occasion, she used to come to house of Bhaiyalal who happens to be her brother-in-law (Nandoi). It is also mentioned that antecedents of Devki were not proper and she had relations with several other persons. Thus, it is imputed that there was a dispute between deceased Savitri and her husband on account of frequent visits of Devki Saur (PW-2). 10. Devki Saur (PW-2) who happens to be an eye-witness has stated that the appellant had given a single blow on head with a Lathi to Savitri Bai. She has though denied this fact that Savitri Bai was telling her to leave her home as she had already stayed for 10-12 days but this suggestion has been denied. Devki Bai has admitted that the appellant had not come to the place of the incident armed with a Danda but had picked up a Danda which was lying on the spot and she identified that Danda as Article A-1. 11. Devki Bai has admitted that the appellant had not come to the place of the incident armed with a Danda but had picked up a Danda which was lying on the spot and she identified that Danda as Article A-1. 11. Prembai (PW-7) is another eye-witness. She has admitted that deceased Savitri was her Mausi in relation. She has stated that she was present at the time of incident. She has stated that an altercation had taken place between Bhaiyalal and Savitri and Savitri called Prembai (PW-7). Altercation had taken place at night. She has admitted that there was only one injury on the head of Devki. 12. Dr. Devesh Pateriya (PW-8) had conducted MLC on 8.2.2021. He has admitted that there was one lacerated wound on the head of the victim measuring 3x2 cm subcutaneous deep on the right parietal part of the head which was on the right hand side of the midline. He had prepared medical report (Ex.P-5) as well as query report (Ex.P-9). He has admitted that injuries on the head could have been caused with the object which was presented that is the Danda which was seized. This doctor had also conducted X-ray and given report (Ex.P-7) in which it is mentioned that there was no fracture on the chest but there was linear fracture on left parietal and temporal bone. He has admitted that there are three layers in the head and damage was only to the first layer in the head of Savitri. 13. Dr. Rajendra Barav (PW-13) conducted postmortem on the body of the deceased, admits in his cross-examination that all the injuries can be caused with the single assault. He has further admitted that both the fractures in the head could have been caused with a single assault. 14. Thus, it is submitted that it is a case of single injury. There was no intention of causing culpable homicide, therefore, conviction should be altered from one under section 302 of IPC to section 304 of IPC. It is also submitted that conviction under section 323 of IPC is not maintainable as no injury was found on the body of injured Devki as is evident from the evidence of Dr. Devesh Pateriya (PW-8). 15. It is also submitted that conviction under section 323 of IPC is not maintainable as no injury was found on the body of injured Devki as is evident from the evidence of Dr. Devesh Pateriya (PW-8). 15. Shri Nitin Gupta, learned Government Advocate for the State submits that even if it is presumed that there was a single fatal blow but the consequences are to be seen and therefore, no intelligence or interference is called for. 16. After hearing learned counsel for the parties and going through the evidence. 17. Kiran Saur (PW-1) is a hearsay witness. She had not seen the incident. She admits that she received call from Manish. However, her testimony to the affect that Devki Saur (PW-2) was of doubtful antecedents and her presence in the house of Bhaiyalal was objected by deceased Savitri and in fact Devki Saur (PW-2) was cause of altercation. However, there is no direct evidence to this effect but evidence of Devki Saur (PW-2) and Prembai (PW-7) who is another eye-witness to the incident reveals that there was single blow given by the appellant on the head of the deceased Savitri. The appellant had not taken any undue advantage of the sitaution inasmuch as it is admitted by Devki Saur (PW-2) that he had not brought any Danda with him but picked up a piece of wood lying on the spot. This fact is corroborated by Dr. Deven Pateriya (PW-8) and Dr. Rajendra Barav (PW-13) that there was single injury on the head of the victim Savitri. The object of assault was picked up from the spot and the appellant had not come to the spot with any arms. Thus, when there was no intention to cause death but appellant had knowledge that his act may cause death, case of the person will fall under section 304 Part II of IPC. 18. As far as contention of learned counsel for the appellant, there was no injury on the body of deceased Devki and conviction under section 323 of IPC is required to be set aside is not made out from the evidence of Dr. Deven Pateriya (PW-8) inasmuch as Dr. Deven Pateriya (PW-8) found simple injuries on the body of Devki. There was a lacerated wound measuring 2.5x0.5 cm subcutaneous deep which was obliquely shaped over the left parietal region. This fact is also supported by Devki. Deven Pateriya (PW-8) inasmuch as Dr. Deven Pateriya (PW-8) found simple injuries on the body of Devki. There was a lacerated wound measuring 2.5x0.5 cm subcutaneous deep which was obliquely shaped over the left parietal region. This fact is also supported by Devki. She is injured eye-witness, therefore, when evidence of the witnesses is taken into consideration and looking to the facts that the deceased Savitri was admitted in a hospital from 8.2.2021 to 12.2.2021 when she succumbed to the injuries, we are of the opinion that in the light of the decision of Three Judges of Hon'ble Supreme Court in Jugut Ram v. State of Chhattisgarh, (2020) 9 SCC 520 where Hon'ble Supreme Court has held that assault by accused on head of deceased with Lathi, leading to his death in hospital the next day. Courts are required to examine circumstances, manner of assault, nature and number of injuries. They are required to be considered cumulatively, to decipher intention or knowledge as the case may be. Assault not premeditated but took place in the heat of passion due to some dispute will be an act done with knowledge that it was likely to cause death, but without any intention to cause death. Hence, conviction is required to be altered from section 302 of IPC to section 304 Part II of IPC and accordingly facts of this case being similar to Jugut Ram (supra) where incident took place at the heat of the movement, we are of the opinion that appellant is entitled to conversion of his conviction from one section 302 of IPC to section 304 Part II of IPC. The conviction of the appellant under section 323 of IPC is maintained. 19. Accordingly, we direct the appellant to undergo R.I. for 10 years with fine of Rs.5,000/- with default stipulation of 02 months additional R.I. 20. In above terms, the appeal is partly allowed and disposed of. 21. The case property be disposed of as per the order of the trial Court. 22. With the copy of the judgment, the record of the trial Court be sent back. 23. Pending application(s), if any, also stand disposed of.