Madhya Pradesh High Court
Puran Gadariya & Ors. vs The State Of M.P. on 14 February, 2018
Author: Anjuli Palo
Bench: Anjuli Palo
1
HIGH COURT OF MADHYA PRADESH, PRINCIPAL SEAT AT
JABALPUR
Criminal Appeal No. 1276 of 1995
Parties Name Puran Gadariya and another
Vs.
State of Madhya Pradesh
Bench Constituted Hon'ble Shri Justice S.K. Gangele &
Hon'ble Smt. Justice Anjuli Palo
Judgment delivered by Hon'ble Shri Justice S.K. Gangele
Whether approved for No
reporting
Name of counsels for parties For appellant: Shri Abhishek Tiwari,
Amicus Curiae.
For respondent/State: Shri A. N. Gupta,
Government Advocate.
Law laid down Significant paragraph numbers (J U D G M E N T) Pronounced on : 14.02.2018
1. Appellants have filed this appeal against the judgment of conviction dated 27.07.1995 passed in Sessions Trial No.06/91. The trial Court held the appellants guilty for commission of offence punishable under Sections 302/34 and 323/34 of IPC and awarded sentence of RI life and RI six months alongwith fine of Rs.1000/- and Rs. 500/- respectively.
2. Prosecution story in brief is that on 26.10.1990, complainant Bhawanideen was coming back to his house on his bicycle. Both the accused persons namely Puran and Pankhi were
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also coming alongwith their goats. Accused Puran was armed with axe and Pankhi with lathi. Bhawanideen tried to steer his bicycle by one side, in that event, their goats were disturbed and ran away from the place. In that event, Pankhi asked the deceased that why he had done the aforesaid act. Thereafter, Pankhi had inflicted blows of lathi on the head of the complainant and other parts of the body. Complainant Bhawanideen ran away towards his village. After hearing sound of Bhawanideen, his father Deendayal came there from his field. Complainant told his father that both the appellants had beaten him. At that time, both the appellants also reached there. Puran had inflicted injury by axe on the head of Deendayal and Pankhi had inflicted blows of lathi. Complainant's mother and his both the sisters reached on the spot. Both the appellants had also beaten them. Deendayal became unconscious. Deceased was taken to the house, where he died. Bhawanideen lodged report at the police station, on the basis of which, first information report Ex.P4 was registered. Police conducted investigation and filed charge-sheet. The appellants abjured the guilt and pleaded innocence. The trial Court held the appellants guilty for commission of offence and awarded punishment as mentioned above in the judgment.
3. Learned Amicus Curiae for the appellants has submitted that incident had happened all of sudden. Both the appellants have also received injuries. There was no intention to kill the deceased.
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Hence, the act of the appellants would fall under Section 304 Part I of IPC.
4. Learned Government Advocate appearing on behalf of the State has submitted that the appellants have applied sufficient force to kill the deceased. Deceased received number of injuries. There are injured eye witnesses. Hence, the intention of the appellants was to kill the deceased. The trial Court rightly held the appellants guilty and awarded a proper sentence.
5. PW-6 Bhawanideen is the injured eye witness. He is the son of the deceased. He lodged the FIR. He deposed that he was coming back on a bicycle to his house after taking grass. Near Baghe Nala, both the appellants were also coming alongwith their goats. Puran had an axe and Pankhi had a lathi in their hands. I tried to steer my bicycle from one side, however, the goats ran away. Pankhi abused me and told me that why I had disturbed the goats. He inflicted blows of lathi at my head and other parts of the body. I ran away towards the village. My father came there and my sisters Munnibai and Sagunbai and my brothers Ramcharan and Bitale also came there. I told the incident to my father. Thereafter, the appellants had beaten my father. Puran inflicted a blow of axe on the head of my father and Pankhi inflicted blows by lathi. They had also beaten my sisters and other persons. The deceased (my father) became unconscious. We took him to the
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house. He was died after some time. I also received injuries. My mother, my sisters and my brothers also received injuries. He deposed that Puran and Pankhi had not received any injury, however, if they had received any injury, I have no knowledge. Another eye witness is PW-7 Bitale. He deposed that both the appellants Puran and Pankhi had beaten my father by axe and lathi. They had also beaten my mother, brothers and sisters. Thereafter, I ran away from the spot. PW-11 Km. Munni Bai deposed the same facts as deposed by PW-7 Bitale. I reached on the spot. Both the appellants had inflicted injuries to the deceased. One blow of lathi was also given to me on my head. PW-12 Smt. Bittibai is the wife of the deceased. She also deposed the same facts that she reached on the spot and Puran inflicted a blow by axe on the head of the deceased and Pankhi inflicted blows by lathi on the deceased. Pankhi had also beaten me by lathi. PW-17 Tulaiya also deposed the same facts that both the appellants had beaten the deceased and appellant Pankhi had inflicted blows of lathi to other family members. From the possession of the appellant Puran, an axe was seized and from Pankhi, a lathi was seized.
6. PW-13 Sharad Dwivedi deposed that I examined injured Bittibai on 27.10.1990 and noticed one injury on the right side of the head, measuring 7x1x1/2 CM, caused by hard and blunt object. He further deposed that on the same date, I examined
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Munni Bai and noticed one simple injury on the left side of the head, measuring 3x2 CM caused by hard and blunt object. I also examined Ramcharan and noticed one lacerated injury on the middle of the head and another injury on right arm. Both the injuries were caused by hard and blunt object. I also examined Bhawanideen and noticed one lacerated injury on the head and another injury on the right leg. Both the injuries were simple in nature and were caused by hard and blunt object. I also examined Sakunbai and noticed one simple injury on the head and one contusion on the left arm. Both the injuries were simple in nature and were caused by hard and blunt object.
7. PW-14 Dr. H.N. Sharma performed postmortem on the body of the deceased. He deposed that I noticed following injuries on the person of the body of the deceased:
^^pksV dza- ¼1½ ,d QVk gqvk ?kko] tks ekFks esa nkfgus vksj FkkA ftldk vkdkj 1½bapx1@2bap]xgM~Mh dh xgjkbZ rd FkkA bl ij tek gqvk [kwu yxk FkkA pksV dza- ¼2½ ,d cwzt ¼dUVw;tu½ tks flj ij ck;ha vksj isjkbVy Hkkx ij FkhA bldk vkdkj 2bapx1bap FkkA ;g pksV xgjs yky jax dh FkhA ,oa vkM+h fn'kk esa FkhA pksV dza- ¼3½ ,d czwt tks flj ij chpksa chp FkhA bldk vkdkj 1 bap x1bap FkkA ;g xgjs yky jax dh FkhA pksV dza- ¼4½ ,d czwt tks flj ij nkfgus vksj iSjkbVy Hkkx ij FkhA bldk vkdkj Ms<+ bapx3@4 bap FkkA ;g pksV vkM+h fn'kk esa Fkh] ,oa xgjs yky jax dh FkhA pksV dza- ¼5½ 3 czwtt tks lhus esa ck;ah vksj Fkh] buds vkdkj dzek'k% 4bapx1@2bap] lk<+s rhu bapx1@2bap] vkSj 4 bapx3@4 bap FkhA lHkh pksVsa vkM+h fn'kk esa Fkh vkSj xgjs yky jax dh FkhA pksV dza- ¼6½ nks czwt] tks ihB esa chpksa chp] ck;ha vksj FksA budk vkdkj dze'k% 4bapx1@2bap ,oa 3bapx1@2baPk FkkA nksuksa vkM+h fn'kk esa Fkh] vkSj xgjs yky jax dh FkhA pksV dza- ¼7½ ,d [kjksap tks nkfgus ?kqVus ij Fkh] ftldk vkdkj 1@2bapx1@2bap FkkA tks xgjs yky jax dh FkhA^^
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On internal examination I noticed that right parietal bone, left parietal bone, right frontal bone and temporal bone were broken. Brain was damaged. Seventh, Eighth, Ninth and Tenth ribs of left side of the chest were also broken. There was injury in the spleen measuring 1"x1/3"x1/2". He opined that the deceased died due to shock and haemorrhage, due to the injuries caused to the spleen and the brain. Injuries were antemortem in nature, which were caused by hard and blunt object.
In the cross-examination, he admitted the fact that on 30.10.1990, I examined Pankhi and noticed one abrasion on the head 1/2x1/2", which was caused by hard and blunt object. MLC report is Ex.2C. I signed the same. He further admitted that on the same date I examined Puran and noticed one lacerated wound on the head, 1/2x1/2" muscle deep. The injury was simple in nature and was caused by hard and blunt object. MLC report is Ex.D3. I signed the same.
8. PW-17 Azim Khan is the Investigating Officer. He deposed that on 26.10.1990, I was posted as Station House Officer Incharge, Police Station Brijpur. I recorded first information report Ex.P4 and signed the same. I prepared spot map Ex.P23 and signed the same. On 27.10.1990, I prepared panchnama Ex.P3 of the body of the deceased and signed the same. I seized plain asphalt, blood stained asphalt and pieces of
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red bangles vide seizure memo Ex.P16 and signed the same. On the same date, I recorded statements of the witnesses Bitale, Tulaiya, Khilaiya, Bittibai, Bhawanideen, Ramcharan, Sakunbai and Munnibai. I arrested accused persons vide arrest memo Ex.P21 and signed the same. I recorded memorandum of accused Puran Ex.P17 and on the memorandum, I seized an axe from his possession vide seizure memo Ex.P19 and signed both the documents. I also recorded memorandum of accused Pankhi Ex.P18 and on his memorandum, a lathi was seized vide seizure memo Ex.P20. Seized articles were sent to FSL for examination. In his cross-examination, he deposed that I arrested Puran and Pankhi and noticed injuries on their body. They were sent to District Hospital, Panna for examination.
9. From the aforesaid evidence, this fact has been established that both the appellants received injuries on their head. The evidence further discloses that the incident had occurred all of sudden. There was no premeditated plan. The son of the deceased deposed that he was coming on a bicycle after taking grass and he steered his bicycle from one side, in that event some goats ran away. Thereafter, there were hot talks. Thereafter, both the appellants had inflicted injuries on the head and other parts of the body of the deceased. Other persons were also beaten.
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10. The Hon'ble Apex Court in the case of Willie (William) Slaney vs State of M.P., AIR 1956 SC 116 has held as under in regard to the fact that whether the offence would fall under Section 304 Part I of IPC or 302 of IPC:
"89. Coming now to the facts of the present case; William was on terms of intimacy with Beryl P.W. 13. She was the sister of Donald Smythe. The accused was practically living with her in her house. The brother did not like their intimacy and was making attempts to separate Beryl from the accused. On the evening of the day of the occurrence, Donald and his mother went to Beryl's house, There was a quarrel between them and the accused was asked to get away. He left the place but returned a little later with his brother (Ronnie) and asked Beryl who was on the first floor to come down to him. She did not come but Donald came down into the courtyard. There was a heated exchange of words. The accused slapped Donald on the cheek. Donald lifted his fist. The accused gave one blow on his head with a hockey stick with the result that his skull was fractured. Donald died in the hospital ten days later. A plea of alibi was given up in the High Court. The suggestion that Donald fell down and sustained the head injury while descending the stairs was ruled out by the evidence of the eye-witnesses. Nothing was established to justify any exercise of the right of private defence.
90. On these facts, which have been proved, the only question that arises is whether the appellant is guilty of murder under section 302 of the Indian Penal Code, or guilty only of culpable homicide, not amounting to murder, under the second part of section 304. The High Court did not address itself to the nature of the offence. It is obvious that the appellant did not intend to kill the deceased. The evidence of the doctor is that the injury was likely to result in fatal consequences. This by itself is not enough to bring the case within the scope of section
300. There is nothing to warrant us to attribute to the appellant knowledge that the injury was liable to cause death or that it was so imminently dangerous
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that it must in all probability cause death. The fact that Donald lived for ten days afterwards shows that it was not sufficient in the ordinary course of nature to cause death. The elements specified in section 300 of the Indian Penal Code are thus wanting. We take the view, considering all the circumstances that the offence is the lesser one."
11. The Hon'ble Apex Court in the case of B.D. Khunte vs Union of India and others, (2015) 1 SCC 286 has held as under
in regard to provocation:
"12. 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."
12. In view of the aforesaid evidence and the principle of law laid down by Hon'ble Supreme Court, in our opinion, the offence committed by the appellants would fall under Section 304 Part I of IPC. Sentence and conviction of the appellants awarded by the
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trial Court under Section 323/34 of IPC is hereby upheld. Sentence of the appellants was suspended by this Court vide order dated 12.02.2002 and 04.03.2002. They were taken into custody on the date of incident i.e. on 26.10.1990. They have completed actual jail sentence of about 12 years. Hence, in our opinion, it would be just and proper to award a sentence to the appellants as already undergone.
13. Consequently, the appeal filed by the appellants is partly allowed. Conviction and sentence of the appellants awarded by the trial Court is hereby set aside. They are convicted for commission of offence punishable under Section 304 Part I/34 IPC and awarded sentence of already undergone. Their conviction and sentence under Section 323/34 of IPC is hereby upheld. Both the sentences shall run concurrently. They are on bail. Their bail bonds are discharged.
(S.K. Gangele) (Smt. Anjuli Palo)
Judge Judge
Digitally signed by VINOD KUMAR TIWARI
Date: 2018.02.16 12:54:45 +05'30'
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