Madhya Pradesh High Court
Nagga @ Bhuralal Mangilal Nayak vs State Of M.P. on 9 February, 2018
Bench: Vivek Rusia, Virender Singh
-: 19:- Cr.A.No.1206 of 2007
HIGH COURT OF MADHYA PRADESH, JABALPUR
BENCH INDORE
( Division Bench )
( Hon'ble Shri Justice Vivek Rusia and
Hon'ble Shri Justice Virender Singh)
Criminal Appeal No.1206 of 2007
Nagga @ Bhuralal S/o Mangilal Nayak
VERSUS
State of M.P. through
P.S. Neemuch, Distt. Neemuch
*****
Ms. Archna Maheshwari, learned Counsel for the
appellant.
Ms. Nidhi Bohra, learned Government Advocate for the
respondent/State.
*****
Whether approved for reporting: Yes/No
J U D G M E N T
(Delivered on this 9th day of February, 2018) Per : Virender Singh, J. :
1. The allegation against the present appellant is that he murdered Ratanbai on 08.10.2006, for which he is convicted under Section 302 and punished with life imprisonment and fine of Rs. 5000/- vide judgment dated 29.09.2007 passed in ST No.19/2007 by Sessions Judge, Neemuch.
2. Background facts sans unnecessary details are that on 08.10.2006, villagers of Village Doonglawada including the complainant Nandlal came to know that Ratanbai Gujar, who -: 19:- Cr.A.No.1206 of 2007 had gone for work on her farm in the morning, was missing.
Nandlal along with Satyanarayan, Kailash, Rameshwar and some other villagers searched for her in nearby fields. During search, they sent Satyanarayan to the Police Station to inform about the incident. After searching in nearby areas, they sat for a while on the well of Ratanbai. The appellant Nagga @ Bhuralal also joined them in search operation. After a while, at about 9.00 in the night, he left them stating that he will come back after relieving himself and had gone towards village pond. Nandlal and Kailash again started search for Ratanbai. When they were going towards well of Devilal, in the moon light, they saw the appellant coming from opposite side amongst the bushes with a dead body on shoulders. They threw light on him by torch then he threw dead body and ran away. They found that the dead body was of Ratanbai. They both (Nandlal and Kailash) chased and caught him. He requested them not to beat him and admitted that he has killed Ratanbai by stone and he was going to throw her dead body in the well. Nandlal and Kailash made a clamour. Champalal, Shivam and many other people rushed towards them. By the time, the police also reached there. Nandlal lodged a Dehati Nalishi Ex.P/5 on the spot. After registering the crime on 0/06 under Section 302 of IPC, the Police sent Dehati Nalishi to the Police Station Neemuch Cantt for registration of crime, where after scribing FIR Ex.P/13 a Crime No.453/06 under Section 302 of IPC was registered.
3. On the spot, the Police called the witnesses by issuing notice Ex.P/6, prepared a memo of corpse Ex.P/7, spot map Ex.P/49, seized blood stained and plain soil, stone and some grass vide seizure memo Ex.P/9, seized Darati and ladies' slippers vide Ex.P/10, took photographs of the spot Ex.P/14 to P/46, sent the dead body for postmortem vide requisition Ex.P/1 -: 19:- Cr.A.No.1206 of 2007 and obtained postmortem report Ex.P/2. The police raised query vide memo Ex.P/3 as to the cause of death of Ratanbai, which was replied as Ex.P/4 stating that the cause of death was grievous injury on the head. The police arrested the accused vide arrest memo Ex.P/48, seized his pants and shirt vide seizure memo Ex.P/47, sent all the seized articles to Forensic Science Laboratory vide letter Ex.P/15. Vide report Ex.P/51 Forensic Science Laboratory confirmed presence of human blood on the pants and shirt of the appellant and on saree, blouse and petticoat of the deceased. A team of Dr. R.K.Joshi and Dr.Mrs. Sangeeta Yadav performed postmortem and has given opinion that the death of Ratanbai was due to shock caused due to crush injury to the brain. Duration of death was 24 years from the postmortem. On completion of investigation the police chargesheeted the appellant.
4. The accused/appellant was charged, tried and held guilty for committing murder of Ratanbai and awarded life imprisonment with fine of Rs.5,000/- and in default of payment of fine to further undergo RI of six months.
5. The appellant has preferred the present appeal on the grounds that the judgment and order of the Trial Court is contrary to the law and facts available on the record. The court below erred in relying on the statement of the prosecution witnesses. The whole case of the prosecution is based on circumstantial evidence and the prosecution failed to complete the chain of circumstances. The conviction of the appellant is based on the extra judicial confession which has not been proved in this case. In absence of any medical evidence the Trial Court has erred in presuming that the death was homicidal. The FIR is dated 08.10.2006 but in the spot map, seizure memo etc. date of -: 19:- Cr.A.No.1206 of 2007 FIR is mentioned as 09.10.2006 which shows that all the documents have been prepared at the Police Station itself without visiting the spot. Query report was also given by the Doctors without examining the deceased as this report was given on 09.10.2006 at 9.00 a.m.; whereas the dead body was received by the Doctor after 10.00 a.m.. No finding has been given by the Forensic Science Laboratory regarding group of the blood, therefore, such evidence cannot be used against the appellant. It is clear from the evidence of the prosecution itself that the appellant was also with the other persons, who were searching for Ratanbai upto 9.00 p.m. and just after that he was seen carrying the dead body. This story of prosecution is highly improbable. There is a conflict between the ocular and medical evidence. There was no motive to kill. The evidence produced by the prosecution is suffered from inherent improbabilities, serious omissions and contradictions. No independent witness has been examined by the prosecution. The learned Trial Court erred in relying on the interested or inimical witnesses. Statements of witnesses are identical which shows that acting under a conspiracy, they have given a parrot-like version. The case of the prosecution is highly doubtful and learned court below has committed a grave error in not extending benefit of doubt to the appellant, therefore, it is prayed to set aside the judgment and sentence passed by the learned trial court and to acquit the appellant.
6. Per contra, prosecution has opposed the appeal. It is submitted by the learned Public Prosecutor that the witnesses examined by the prosecution before the Trial Court have given unambiguous statements. In short postmortem report and detail postmortem report both the team of doctors have clearly opined that the death was due to crush injury caused on the head of the -: 19:- Cr.A.No.1206 of 2007 deceased. Looking to the nature of the injury, certainly the death was not natural or accidental but due to injuries caused by an external blow given by some force. Such type of injuries cannot be caused by falling on the floor, particularly in a farm or raw land which is amply clear from the photographs taken on the spot. Witnesses have given true version and truthfulness of their testimony has been examined by the defence on the anvil of cross-examination. Nothing important could be pointed out by the appellant, which made their statements doubtful. Learned Trial Court has appreciated all the evidence correctly, therefore, findings of the learned trial court are unassailable on any ground and the appeal being devoid of merit, deserves to be dismissed.
7. We have considered rival contentions of both the parties and have gone through the record.
8. Although it is true that nature of death has not been stated by Dr. R.K.Joshi in his statement and it is also not mentioned in the postmortem report scribed by him but it is clear from the evidence available on record that in reply to the query raised by the Police, even before the detail postmortem, only on the basis of observation Dr. Joshi replied that the death was due to serious injuries caused on the head of the deceased. On detail postmortem the team of Doctors found fracture of right tempo parietal bone, membrane was torn and brain matter was coming out. There was also a lacerated wound on the middle of the head and contusion on right side of neck. All the injuries were ante mortem and death was caused due to these injuries. The nature of injuries shows the impact and force used in causing the injuries. It is true that Dr. Joshi has admitted in cross- examination that injuries may be accidental but there is no sign that any accident happened there. The incident happened in a -: 19:- Cr.A.No.1206 of 2007 farm land or at a place of raw soil. The injuries as found on the person of the deceased cannot be caused on a simple fall on the floor or simple impact of any hard and blunt object. The deceased was a middle aged woman. On a simple blow of a hard and blunt object, bone would not get fractured and brain matter would not come out. Besides, the witnesses have stated that when they caught the accused carrying dead body, he confessed before them that he caused death of deceased by causing injuries by a stone. No sign of any accident were found on the spot inspection. Nothing is mentioned in the spot map or any other document prepared on the spot and also in the photographs. All these evidence has not been challenged by the appellant. Therefore, considering the evidence in its totality the learned Trial Court has correctly held that the death of the deceased was homicidal.
9. While deposing before the Trial Court Nandlal (PW-3), Kailash (PW-4), Manoharlal (PW-5) and Rameshwar (PW-6) have stated that on the date of incident Ratanbai was missing from her house since morning and they were searching her but did not find any clue. The appellant also joined them at about 9.00 in the night and after few minutes, he left them stating that he will joined them back after relieving himself. During the search, when they reached to the farm of Devilal, they saw in the moon light that the accused was carrying dead body on his shoulder. As they threw light of the torch, he threw the dead body and fled away. They chased and caught him. He confessed before them that he has killed Ratanbai by stone and was going to throw the dead body in the well. Satyanarayan (PW-12) has also supported their statements. Statement of these witnesses remained intact even after cross-examination and nothing substantial is there to disbelieve them. Neither any serious -: 19:- Cr.A.No.1206 of 2007 allegation regarding their impartiality is made nor any evidence is produced to show that the witnesses are either inimical or have some malice towards the appellant. There is no evidence that there was any reason for the witnesses to falsely implicate the appellant. Nothing is there to doubt truthfulness of statements of these witnesses. Nothing contrary is available against the extra judicial confession of the accused as this fact is mentioned since scripting the Dehati Nalishi on the spot. The accused was seen by the witnesses throwing the dead body. He was caught on the spot and human blood stains were found on his clothes. All these facts i.e. appellant was seen and caught with the dead body, his confession and presence of human blood on his clothes either not challenged by the appellant or could not be contradicted or rebutted by him. All this positive evidence which is further supported with the documents prepared during the investigation is sufficient to hold the appellant guilty.
10. This is true that the postmortem was started by the team of Doctors at about 10:00 a.m. while the query is replied at 9:00 a.m. but this does not create any doubt as before starting the postmortem the Police was eager to know about the cause of death because the accused was in their custody and the investigation was to be taken, therefore, the Police in brief wanted to know the cause of death and on a primary observation Doctor opined that the death was due to injuries caused on the head, thereafter they started the postmortem. Thus, the doctors have first given short P.M. report and thereafter they performed detailed post mortem and submitted final report. Therefore, in fact there is no contradiction in time of postmortem and of short postmortem report.
11. It has come in the statement of the witnesses that the -: 19:- Cr.A.No.1206 of 2007 accused was having illicit relation with sister-in-law (Devrani) of the deceased. The deceased came to know about their relations. There was a fear in his mind that she may disclose this to the family and other villagers, therefore, he wanted to eliminate her from his way to get rid of such possibilities of disclosure. But this fact is neither mentioned in the Dehati Nalishi nor in the police statements of all the witness and no reason is assigned for not disclosing this fact at an earlier stage or during investigation before the Police. Therefore, this improvement in the statements cannot be relied upon. But as proof of motive in murder case is not required; therefore, absence of such evidence is not fatal for the prosecution case.
12. Though there are some contradictions or discrepancies in the statement of the witnesses but the learned Trial Court has appreciated all of them and has correctly held that these contradictions or discrepancies are not on any material point, therefore, have no adverse impact on the quality of the prosecution evidence.
13. In this case nobody had seen the appellant causing injury to the deceased. Only one fatal injury was found on the head of the deceased. It is not the case of the prosecution the he gave repeated blow of stone to the deceased. There is no evidence regarding motive of the murder. Motive disclosed by the witnesses appears to be improvement in the statements, which cannot be relied upon. Thus the case of the prosecution regarding motive behind the incident could not be established. There is nothing on record to show preparation or premeditation on part of the accused. The appellant has no criminal antecedent.
14. In this background we examined the law on the subject. In Annamalai Vs. State reported in 2016 CRI.L.J. 2727, the -: 19:- Cr.A.No.1206 of 2007 Division Bench of Madras High Court has considered the mitigating circumstances and has held in para-13 of the judgement as under:-
"Now turning to the punishment, the accused is the sole bread winner of the family. He has got three brothers. He has got a big family to take care. He has no bad antecedents. After the occurrence also, it is not reported that he was involved in any other crime. Further, there are lot of chances for reformation. So far as the aggravating circumstances are concerned, there was no pre-meditation for the accused to commit the murder of the deceased. Having regard to these mitigating as well as aggravating circumstances, we are of the view that sentencing the accused to undergo rigorous imprisonment for five years and to pay a fine of Rs.1,000/- would meet the ends of justice."
15. In Chand Khan Vs. State of M.P. reported in 2006(3) M.P.L.J. 549, the Division Bench of this Court has also converted the conviction of the appellant in attaining facts and circumstances of the case. Para -10 & 11 of the judgment are relevant which reads thus:-
"10. If the present case is considered in the light of the aforesaid decisions of the Supreme Court, it would show that the appellants caused single injury on the head of the deceased by farsa, which is a sharp edged weapon, but unfortunately Aziz Khan (PW-11) and Ishaq Khan (PW-13) have stated that he gave lathi blow on the head of the deceased. Even after considering this contradictory evidence it has to be taken into consideration that it is a case of single farsa blow inflicted by only appellant Chandkhan and appellant Naseem inflicted only lathi blow on the non- vital part of the body and in the absence of this evidence that the injury no.(i) was sufficient to cause death in the ordinary course of nature and also looking to the various other circumstances like that the accused as well as the deceased are close relatives and the deceased was a person of criminal background -: 19:- Cr.A.No.1206 of 2007 and the incident started because of the abuses made first by the deceased himself, we find that the case will not fall within the purview of section 300, Indian Penal Code but it will fall under section 304 Part II, culpable homicide not amounting to murder.
11. consequently, appeal is partly allowed. Conviction of appellants under section 302/34 Indian Penal Code, is set aside and instead they are convicted under section 304 part II, Indian Penal Code, .......... "
16. The Hon'ble Supreme Court has held in Gurpal Singh v. State of Punjab reported in AIR 2017 SC 471. Para 10 of the judgement reads thus:
"10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Sections 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular, according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly."
17. The Hon'ble Supreme Court held in Arjun and Anr. Vs. State of Chhattisgarh AIR 2017 SC 1150 that:
"19. The point falling for consideration is -: 19:- Cr.A.No.1206 of 2007 whether the conviction of the appellants under Section 302 IPC is sustainable. As discussed earlier, the evidence clearly establishes that while Ayodhya Prasad and other witnesses were cutting the trees, there was exchange of words which resulted in altercation and during the said altercation, the appellants attacked the deceased. Thus, the incident occurred due to a sudden fight which, in our view, falls under exception (4) of Section 300 IPC.
20. To invoke this exception (4), the requirements that are to be fulfilled have been laid down by this Court in Surinder Kumar v. Union Territory of Chandigarh (1989) 2 SCC 217 : (AIR 1989 SC 1094, Para 6), it has been explained as under:
"7. To invoke this exception four requirements must be satisfied, 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 assailant had not taken any undue advantage or acted in a cruel manner. The cause of the quarrel is not relevant nor is it relevant who offered the provocation or started the assault. The number of wounds caused during the occurrence is not a decisive factor but what is important is that the occurrence must have been sudden and unpremeditated and the offender must have acted in a fit of anger. Of course, the offender must not have taken any undue advantage or acted in a cruel manner. Where, on a sudden quarrel, a person in the heat of the moment picks up a weapon which is handy and causes injuries, one of which proves fatal, he would be entitled to the benefit of this exception provided he has not acted cruelly.............."
21. Further in the case of Arumugam v. State, Represented by Inspector of Police, Tamil Nadu, (2008) 15 SCC 590 : (AIR 2009 SC 331, Para 15), in support of the proposition of law that under what circumstances exception (4) to Section 300 IPC can be invoked if death is caused, it has been explained as under:
"9. .......
"18. The help of Exception 4 can be invoked if death is caused (a) without premeditation; (b) in a sudden fight; (c) without the offender's having taken undue advantage or acted in a -: 19:- Cr.A.No.1206 of 2007 cruel or unusual manner; and (d) the fight must have been with the person killed. To bring a case within Exception 4 all the ingredients mentioned in it must be found. It is to be noted that the 'fight' occurring in Exception 4 to Section 300 IPC is not defined in the Penal Code, 1860. It takes two to make a fight. Heat of passion requires that there must be no time for the passions to cool down and in this case, the parties had worked themselves into a fury on account of the verbal altercation in the beginning. A fight is a combat between two and more persons whether with or without weapons. It is not possible to enunciate any general rule as to what shall be deemed to be a sudden quarrel. It is a question of fact and whether a quarrel is sudden or not must necessarily depend upon the proved facts of each case. For the application of Exception 4, it is not sufficient to show that there was a sudden quarrel and there was no premeditation. It must further be shown that the offender has not taken undue advantage or acted in cruel or unusual manner. The expression 'undue advantage' as used in the provision means 'unfair advantage'."
18. The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve V/s. State of Maharashtra reported in AIR 2016 SC 2292 that if assault on deceased could be said to be on account of sudden fight without pre-meditation, in heat of passion and upon a sudden quarrel, Conviction of the appellant cannot be sustained under S. 302 and altered to one under Section 304 part-I of IPC. Relevant para 7 of the judgement reads thus:
"7. In the facts and circumstances noted above, there appears merit in the submission advanced by learned counsel for the appellant that in view of Exception 1 or Exception 4 in Section 300 of the IPC the case made out against the appellant is that of culpable homicide not amounting to murder. It would be natural for the family members of juvenile offender Balu on hearing his cries, to rush for his help and when injury on the appellant has also been proved there is sufficient material to -: 19:- Cr.A.No.1206 of 2007 infer the reasonable possibility of a grave and sudden provocation. The assault on the deceased, in absence of intention to cause death could be on account of sudden fight without pre-meditation, in the heat of passion and upon a sudden quarrel. We therefore feel persuaded to and do set aside the conviction of the appellant under Section 302 IPC and substitute the same with conviction under Section 304 Part I of the IPC. The certificate of imprisonment available on record discloses that the appellant has by now undergone more than 12 years of actual imprisonment. The aforesaid period, in our estimate is sufficient to meet the ends of justice. Hence the sentence of imprisonment for life is reduced to imprisonment for the period already undergone by the appellant. In view of such modification in the sentence, the appellant is directed to be released from custody forthwith if not required to be kept in custody in connection with any other criminal case. The appeal stands allowed to the aforesaid extent."
19. In Sikandar Ali Vs. State of Maharashtra reported in AIR 2017 SC 2614 the Court altered the conviction u/s 302 IPC to one u/s 304 part-2 IPC in the following circumstances:
"7. We have no doubt about the complicity of all the accused in the homicide of Sarfraj. A-1 attacked the deceased with the knife and caused injury on his neck which resulted in his death. The other accused assisted him in committing the crime by holding the hands of the deceased. However, the only question that falls for our consideration is whether the accused are liable to be punished for an offence under Section 302 IPC. After considering the submissions made by the counsel for the Appellants and scrutinising the material on record, we are of the opinion that the accused are not liable to be convicted under Section 302 IPC. We are convinced that there was neither prior concert nor common intention to commit a murder. During the course of their business activity the accused reached the dhaba where the deceased was present. An altercation took place during the discussion they were having behind the dhaba. That led to a sudden fight during which A-1 -: 19:- Cr.A.No.1206 of 2007 attacked the deceased with a knife. Exception 4 to Section 300 is applicable to the facts of this case. As we are convinced that the accused are responsible for the death of Sarfraj, we are of the opinion that they are liable for conviction under Section 304 part II of the IPC. We are informed that A-1 has undergone a sentence of seven years and that A-2 to A-4 have undergone four years of imprisonment. We modify the judgment of the High Court converting the conviction of the accused from Section 302 to Section 304 part II of the IPC sentencing them to the period already undergone. They shall be released forthwith."
20. The Hon'ble Apex Court laid down in Madhavan and Ors. Vs. State of Tamil Nadu reported in AIR 2017 SC 3847 that :-
"8. Notably, the High Court has not considered the issue of quantum of sentence at all, but mechanically proceeded to affirm the sentence awarded by the Trial Court. From the factual position, which has emerged from the record, it is noticed that there was a pre-existing property dispute between the two families. The incident in question happened all of a sudden without any premeditation after PW1 questioned the appellants about their behaviour. It was a free fight between the two family members. Both sides suffered injuries during the altercation. The fatal injury caused to Periyasamy was by the use of thadi (wooden log) which was easily available on the spot. The appellants, on their own, immediately reported the matter to the local police alleging that the complainant party was the aggressor. No antecedent or involvement in any other criminal case has been reported against the appellants. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive.
9. We may usefully refer to the decision of this Court (one of us, Justice Dipak Misra speaking for the Court) in the case of Gopal Singh v. State of Uttarakhand (2013) 7 SCC 545 : (AIR 2013 SC 3048) enunciated the necessity to adhere to the principle of proportionality in -: 19:- Cr.A.No.1206 of 2007 sentencing policy. In paragraphs 18 and 19 of the said decision, the Court observed thus:
"18. Just punishment is the collective cry of the society. While the collective cry has to be kept uppermost in the mind, simultaneously the principle of proportionality between the crime and punishment cannot be totally brushed aside. The principle of just punishment is the bedrock of sentencing in respect of a criminal offence. A punishment should not be disproportionately excessive. The concept of proportionality allows a significant discretion to the Judge but the same has to be guided by certain principles. In certain cases, the nature of culpability, the antecedents of the accused, the factum of age, the potentiality of the convict to become a criminal in future, capability of his reformation and to lead an acceptable life in the prevalent milieu, the effect - propensity to become a social threat or nuisance, and sometimes lapse of time in the commission of the crime and his conduct in the interregnum bearing in mind the nature of the offence, the relationship between the parties and attractability of the doctrine of bringing the convict to the value-based social mainstream may be the guiding factors. Needless to emphasize, these are certain illustrative aspects put forth in a condensed manner. We may hasten to add that there can neither be a straitjacket formula nor a solvable theory in mathematical exactitude. It would be dependent on the facts of the case and rationalized judicial discretion. Neither the personal perception of a Judge nor self- adhered moralistic vision nor hypothetical apprehensions should be allowed to have any play. For every offence, a drastic measure cannot be thought of. Similarly, an offender cannot be allowed to be treated with leniency solely on the ground of discretion vested in a Court. The real requisite is to weigh the circumstances in which the crime has been committed and other concomitant factors which we have indicated here-in-before and also have been stated in a number of pronouncements by this Court. On such touchstone, the sentences are to be imposed. The discretion should not be in the realm of fancy. It should be embedded in the conceptual -: 19:- Cr.A.No.1206 of 2007 essence of just punishment.
19. A Court, while imposing sentence, has to keep in view the various complex matters in mind. To structure a methodology relating to sentencing is difficult to conceive of. The legislature in its wisdom has conferred discretion on the Judge who is guided by certain rational parameters, regard been had to the factual scenario of the case. In certain spheres the legislature has not conferred that discretion and in such circumstances, the discretion is conditional. In respect of certain offences, sentence can be reduced by giving adequate special reasons. The special reasons have to rest on real special circumstances. Hence, the duty of Court in such situations becomes a complex one. The same has to be performed with due reverence for Rule of the collective conscience on one hand and the doctrine of proportionality, principle of reformation and other concomitant factors on the other. The task may be onerous but the same has to be done with total empirical rationality sans any kind of personal philosophy or individual experience or any a- priori notion."
10. Considering the above and keeping in mind the facts of the present case, the nature of the crime, subsequent conduct of the appellants, the nature of weapon used and all other attending circumstances and the relevant facts including that no subsequent untoward incident has been reported against the appellants and the mitigating circumstances, we are inclined to modify the sentence period in the following terms:- ........
21. In view of the aforesaid discussion and also the law laid down by the Hon'ble Supreme Court in Madhavan and Ors. Vs. State of Tamil Nadu, Sikandar Ali Vs. State of Maharashtra, Arjun and Anr. Vs. State of Chhattisgarh and Elavarasan Vs. State (supra), we are of the view that the case of the appellant qualifies all parameters. Therefore, the appeal is partly allowed. We hold that the act of the appellant does not fall under the purview of the offence punishable under Section 302 of IPC but -: 19:- Cr.A.No.1206 of 2007 falls under the purview of offence punishable under Section 304 Part-II of IPC.
22. The appellant is in jail since 29.09.2007 and he has served more than 10 years of imprisonment. Considering the nature of incident and keeping in view the facts and circumstances of the case, in our considered opinion, ends of justice would be served if the appellant is awarded punishment for the period of jail sentence already undergone.
23. Consequently, the judgment passed and sentence awarded by the learned trial Court are set aside to the extent that The conviction of the appellant Nagga @ Bhuralal is converted to one under Sections 304 Part II IPC and the sentence is reduced to the period already undergone. The appellant be set at liberty forthwith, if he is not required to be detained in connection with any other case.
Order of the trial Court regarding disposal of property stands confirmed.
( Vivek Rusia) ( Virender Singh)
Judge Judge
ns.
Neeraj
Digitally signed by Neeraj Sarvate
DN: c=IN, o=High Court of Madhya
Pradesh, ou=Administration,
postalCode=452001, st=Madhya
Pradesh,
Sarvate
2.5.4.20=1de5ec9deb10706ff5d36
eb3e8f79e1db6b2b26800a815e3f0
377420c0156e39, cn=Neeraj
Sarvate
Date: 2018.02.15 16:39:45 +05'30'