Madhya Pradesh High Court
Yashwant @ Ishwar Das Kirmi vs The State Of Madhya Pradesh on 28 July, 2017
Author: S.K. Gangele
Bench: S.K. Gangele
CRA-1932-2005
(YASHWANT @ ISHWAR DAS KIRMI Vs THE STATE OF MADHYA PRADESH)
28-07-2017
Shri Maqbool Khan, learned counsel for the appellant.
Shri Prakash Gupta, learned Panel Lawyer for the
respondent/State.
Appellant has filed this appeal against the judgment of conviction dated 9th September, 2005 passed in S.T. No.143/03 by the Court of Smt. Meean Bhatt, Sessions Judge, Damoh M.P. In view of the period of detention of the appellant, with the consent of both the counsel, the appeal is heard finally.
Judgment passed on separate sheets, signed and dated.
(S.K. GANGELE) (ANURAG SHRIVASTAVA)
JUDGE JUDGE
vkt
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT JABALPUR Criminal Appeal No. 1932 of 2005 Yashwant @ Ishwar Das Kurmi Parties Name Vs. The State of Madhya Pradesh Hon'ble Shri Justice S.K. Gangele & Bench Constituted Hon'ble Shri Justice Anurag Shrivastava Hon'ble Shri Justice S.K. Judgment delivered by Gangele Whether approved for No reporting For appellant: Shri Maqbool Khan.
Name of counsels for parties For respondent/State: Shri Prakash Gupta, Panel Lawyer.
Law laid down Significant paragraph numbers (J U D G M E N T) Pronounced on : 28.07.2017
1. Appellant has filed this appeal against the judgment of conviction dated 9 th September, 2005 passed in Sessions Trial No. 143/2003 by the Court of Smt. Meena Bhatt, Sessions Judge, Damoh M.P. The trial convicted the appellant for commission of offence punishable under Section 302 of Indian Penal Code and awarded life imprisonment.
2. Prosecution story in brief is that there was a dispute between the appellant and the deceased in regard to payment of money. Deceased had requested the appellant to return back the money, which was given to the appellant. On this issue, there was a quarrel. Thereafter, the appellant had told the deceased to come to his house to get his money. When the deceased alongwith two other persons reached at the house of the appellant, the appellant went inside his house and he had taken out a double barrel gun from the house and opened fire at the deceased, due to which deceased was died. Dehati Nalishi, Ex.P-15, was lodged by PW-10/Gulab on 11.04.2003. In the report, facts of the case have been narrated. On receiving dehati nalishi, police registered an offence and conducted investigation. After investigation, charge-sheet was filed. The trial Court framed charge and the appellant abjured the guilt. The trial Court after trial, held the appellant guilty for commission of offence punishable under Section 302 of Indian Penal Code and awarded punishment RI for life.
3. PW-7 Bunty Parsai, who is the eye witness, deposed that he and the deceased had gone on a Suzuki Motorcycle near Deviji Chabootara, where the appellant met with the deceased. At that time, the deceased had made a request to the appellant to return back the money, which the appellant had taken from the deceased as a debt. There was some quarrel and both the deceased and the appellant had used filthy language. Thereafter, the appellant told the deceased to come to his house where he would pay the money to the deceased. PW-7 further deposed that thereafter he and the deceased reached at the house of the appellant on a motorcycle. The appellant was sitting inside his house on a chabootra. He went inside the house and had taken out a double barrel gun and abused the deceased and opened fire at the deceased, which had hit below neck to the deceased, due to which the deceased fell down. Thereafter, PW-7 and Gulab ran away from the spot. PW-7 further deposed that he had told the incident to Raja Rai. Thereafter, police reached on the spot and inquired from the accused, and on the instructions of the accused, a double barrel gun, which was licensed, was seized. Memorandum of the accused is Ex.P-8 and the seizure memo is Ex.P-9. He admitted his signatures on both the memos. There is nothing in his cross-examination.
4. PW-10 Gulab, who is also eye witness, deposed that he had lodged the FIR. He deposed that he and Bunty Rai were standing in front of a Grocery Shop, at that time, deceased came there and thereafter, they had gone to the village, where they met accused Yashwant. The deceased requested the accused- Yashwant to return back his money. However, the appellant had told the deceased that there was no money, but, the appellant had requested the deceased to come to his house. He further deposed that when they reached the house of the appellant, the appellant had opened fire at the deceased, due to which, the deceased fell down. Thereafter, he ran away from the spot.
5. PW-12 Raja Rai deposed that there was money lending between the appellant and the deceased. Gulab and Bunty came to him and they had told him that the appellant had killed the deceased. A gun was seized from the appellant on the basis of his memorandum and this fact has also been proved by PW-7 Bunty.
6. PW-5 Vijay Rai also verified the same fact that before him the appellant had given his memorandum and on his memorandum, a gun was seized. Memorandum of the appellant is Ex.P-8 and the seizure memo is Ex.P-9. Arrest memo is Ex.P-10. He admitted his signatures on the aforesaid documents.
7. PW-2 Dr. Y.P. Patel deposed that he had conducted postmortem of the deceased. He had found following injury on the person of the body of the deceased:
1. â4- mlds iS:iSfj;e LVjukbZ ¼LVZue½ ds à ij ,d v.Mkdkj ysljsVsM ?kko Fkk ftldk vkdkj 1-3 ls-eh- X 1-5 ls-eh- Fkk tks fd uhps dh rjQ ihNs dh rjQ ,oa cka;s rjQ >qdk gqvk Fkk mldh pkjksa rjQ dh peM+h esa Ldzksfpax Fkh vkSj VsVksf;ax Fkh yxHkx ,d ls-eh-
Mk;ehVj esa Fkh mlds pkjksa rjQ ds cky Nkrh ds tydj fldqM+ x;s Fks bl ?kko dk fdukjk vanj rjQ eqM+k gqvk Fkk blds fdukjs ij yky Hkwjs jax dk tek [kwu Fkk bl izdkj ;g xu'kkWV dk bUVªh owaM FkkA â He opined that the deceased died due to gun shot injury.
2. PW-13, H.R. Pande, who is Investigating Officer, deposed that on 11.04.2003 he was posted as Station House Officer Incharge Hindoriya and he received information about the death of the deceased. Thereafter, he alongwith the police party reached at the spot. He recorded dehati nalshi Ex.P-15 and signed the same. Thereafter, he recorded statements of Gulab Chand and Bunty Parsai. He prepared the spot map Ex.P-19. He also prepared panchnama of the body of the deceased, which is Ex.P-16. He had sent the body for postmortem vide Ex.P-17. He also seized plain soil and blood stained soil vide Ex.P-12. Other articles were seized vide Ex.P-13. Photographer had taken photographs of the spot. The appellant was arrested from his house vide arrest memo Ex.P-10, and on memorandum of the appellant, a gun was seized vide seizure memo Ex.P-9. Memorandum of the appellant is Ex.P-8. He admitted his signatures on the aforesaid documents. Patwari had prepared spot map, which Ex.P-11. Seized properties were sent to F.S.L., Sagar vide Ex.P-20. Report of F.S.L. Sagar is Ex.P-21.
3. From the evidence of the two eye witnesses Gulab and Bunty, it is clear that the appellant had opened fire at the deceased, who received gun shot injury. This fact has been corroborated by the doctor PW-2, who performed postmortem on the body of the deceased. The cause of death of the deceased is gun shot injury sustained by him. The gun was seized from the appellant vide seizure memo Ex.P-9 on his memorandum Ex.P-8. Other witnesses have also deposed the same facts.
4. Learned counsel for the appellant has submitted that the incident had happened all of sudden in heat of passion. Hence, the offence committed by the appellant would fall under Section 304 part I of IPC. In support of his contention, he relied on the judgment of the Apex Court passed in case of Arjun and another vs. State of Chhattisgarh, reported in 2017 AIR (SC) 1150.
5. We are not inclined to accept the arguments of learned counsel for the appellant. In the present case, the deceased and two other persons had gone to the village, where the deceased met with the appellant and he had demanded money, which was given to the appellant. At that time, there was quarrel between the appellant and the deceased. Thereafter, the appellant told the deceased that he would pay the money at his house and made a request to come to his house. When the deceased and other persons reached the house of the appellant, the appellant went inside the house and had taken out a gun and opened fire, which had hit the deceased below neck. The appellant had sufficient cooling period. There was no interaction or the words at the time of incident when the appellant had opened fire at the deceased. The Apex Court in the case of B.D. Khunte vs Union of India and others, reported in (2015) 1 SCC 286 has held as under in regard to grave provocation within Exception 1 to Section 300 of IPC:
â12. What is critical for a case to fall under Exception 1 to Section 300 IPC is that the provocation must not only be grave but sudden as well. It is only where the following ingredients of Exception 1 are satisfied that an accused can claim mitigation of the offence committed by him from murder to culpable homicide not amounting to murder:
(1) The deceased must have given provocation to the accused. (2) The provocation so given must have been grave.
(3) The provocation given by the deceased must have been sudden.
(4) The offender by reason of such grave and sudden provocation must have been deprived of his power of self-control; and (5) The offender must have killed the deceased or any other person by mistake or accident during the continuance of the deprivation of the power of self-control.
13. Applying the above tests to the case at hand there is no gainsaying that an able bodied youthful Jawan when physically assaulted by his superior may be in a state of provocation. The gravity of such a provocation may be heightened if the physical beating was meant to force him to submit to unnatural carnal intercourse to satisfy the superior's lust. The store room incident involving the appellant and the deceased is alleged to have taken place when the deceased had bolted the door of the store room to keep out any intruder from seeing what was happening inside. By any standard the act of a superior to humiliate and force his subordinate in a closed room to succumb to the lustful design of the former was a potent recipe for anyone placed in the appellantâs position to revolt and retaliate against the treatment being given to him. What may have happened inside the store room if the appellant had indeed revolted and retaliated against the unbecoming conduct of the deceased is a matter of conjecture. The appellant or any one in his position may have retaliated violently to the grave peril of his tormentor. The fact of the matter, however, is that the appellant appears to have borne the assault without any retaliation against the deceased-superior and somehow managed to escape from the room. The critical moment when the appellant could perhaps loose his cool and equilibrium to take retaliatory action against the deceased was thus allowed to pass uneventfully, grave and sudden provocation for any such action notwithstanding.
14. All that the evidence proves is that after the said incident the appellant was seen crying and depressed and when asked by his colleagues he is said to have narrated his tale of humiliation at the hands of the deceased. There is no evidence to prove that after the incident aforementioned the appellant had continued to suffer a prolonged spell of grave provocation. By their nature such provocation even when sudden and grave cool off with passage of time often lapsing into what would become a motive for taking revenge whenever an opportunity arises. That appears to have happened in the present case also for the appellant's version is that he and his colleagues had planned to avenge the humiliation by beating up the deceased in the evening when they all assemble near the water heating point. That apart, the appellant attended to his normal duty during the day time and after the evening dinner, went to perform his guard duty at 2100 hrs. All these circumstances do not betray any signs of grave leave alone grave and sudden provocation to have continued haunting the appellant and disturbing his mental equilibrium or depriving him of self control that is an essential attribute of grave and sudden provocation to qualify as a mitigating factor under Exception 1 to Section 300 IPC. â
2. In view of the law laid down by the Hon'ble Apex Court, in our opinion, the offence committed by the appellant is murder. It would not fall under Exception 1 to Section 300 IPC. Hence, in our opinion, the trial Court has rightly convicted the appellant and awarded proper sentence. We do not find any merit in this appeal. It is hereby dismissed.
(S.K. Gangele) (Anurag Shrivastava) Judge Judge vkt