Madhya Pradesh High Court
Chandabai And Anr. vs The State Of Madhya Pradesh on 22 August, 2022
Author: Subodh Abhyankar
Bench: Subodh Abhyankar, Satyendra Kumar Singh
1
IN THE HIGH COURT OF MADHYA PRADESH AT
INDORE
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 22nd OF AUGUST, 2022
CRIMINAL APPEAL No. 99 of 2014
Between:-
GENDALAL AND ANR. S/O KARU RATHORE (TELI),
AGED ABOUT 50 YEARS, OCCUPATION:
1. AGRICULTURIST VILL.PALSODA P.S.NAMLI DIST.
RATLAM (MADHYA PRADESH)
VISHNU S/O GENDALAL RATHORE (TELI), AGED
ABOUT 23 YEARS, OCCUPATION: AGRICULTURIST
2. VILL-PALSODA, P.S. NAMLI, DISTT-RATLAM
(MADHYA PRADESH)
.....APPELLANTS
(BY MS. INDU RAJGURU, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT.
THRU.P.S.NAMLI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA, G.A.)
CRIMINAL APPEAL No. 103 of 2014
Between:-
CHANDABAI AND ANR. W/O GENDALAL RATHORE
(TELI), AGED ABOUT 47 YEARS, OCCUPATION:
1.
AGRICULTRIST VILLAGE PALSODA P.S. NAMLI
(MADHYA PRADESH)
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 23-08-2022
11:07:05
2
YASHODABAI D/O GENDALAL RATHORE (TELI) W/O
SATISH, AGED ABOUT 21 YEARS, OCCUPATION:
2. AGRICULTURIST & HOUSEWIFE VILL-PALSODA, P.S.
NAMLI, DISTT-RATLAM (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI MANISH YADAV, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THRU. P.S.
NAMLI (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT SINGH SISODIA, G.A.)
____________________________________________________
Reserved on : 03/08/2022
Delivered on : 22/08/2022
____________________________________________________
This appeal coming on for order/judgment this day,
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR passed the
following:
:: JUDGMENT ::
(Passed on 22/08/2022) 1] This judgment shall also govern the disposal of Cr.A. No.99/2014 filed by the appellants Gendalal and Vishnu and Cr.A. No.103/2014 filed by the appellants Chandabai and Yashodabai as both the appeals have arisen out of the common judgment dated 28/12/2013 passed in S.T. No.290/2011.Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 3
2] These appeals have been preferred under Section 374 of Cr.P.C. against the judgment dated 28/12/2013 passed in S.T. No.290/2011 by the Sessions Judge, Ratlam (M.P.) whereby finding the appellants guilty, the learned Judge of the Trial Court has convicted the appellants as under:-
Conviction Sentence
Accused Section Act Imprisonment Fine Imprisonme
nt in lieu of
fine
Gendalal 323/34 and IPC 1 Year RI / Life 1000/- 1 Year RI
302/34 imprisonment each
Vishnu 323/34 and IPC 1 Year RI / Life 1000/- 1 Year RI
302/34 imprisonment each
Chandabai 323/34 and IPC 1 Year RI / Life 1000/- 1 Year RI
302/34 imprisonment each
Yashodabai 323/34 and IPC 1 Year RI / Life 1000/- 1 Year RI
302/34 imprisonment each
3] In brief, the facts giving rise to the aforesaid appeals are that
an FIR at crime No.250/2011 was lodged by the complainant Bhanwarlal Panchal at around 12:14 noon on 29/09/2011, in respect of the incident which took place at around 10:30 in the morning on the same day. It is alleged that the present appellants, all of whom are from one family as appellant No.1 Gendalal happens to be father of appellant No.2 Vishnu and husband of appellant No.1 Chandabai in CRA No.103/2014 and father of appellant No.2 Yashodabai in the said appeal. The FIR has been lodged on the basis of a Dehati Naleshi which was lodged earlier under Section 302, 323, 34 of IPC by the complainant Bhanwarlal who has stated Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 4 that he is a resident of village Palsoda and at around 10:00 O'clock in the morning when his father, the deceased Nagulal S/o Shankarlal Panchal was sitting outside their house, at that time, the appellant Gendalal Rathore, his son Vishnu and his wife Chandabai passed through their house in a bullock cart, to which Nagulal objected and asked them not to pass through that road and after some altercation, all of them went to their house and as his father was sitting outside their house only, and the complainant was in his lime filed at that time he heard his father's scream, to which he came out of the field and saw that the appellant Gendalal Rathore, his son Vishnu, his wife Chandabai and daughter Yashoda were assaulting his father who was lying on the ground. He ran towards them to save his father and at that time, Gendalal also gave him a stick blow. It is alleged that at that time Gendalal was having a stick, Vishnu was having a sharp aged axe and Chandabai and Yashodabai were having Darata in their hands with which they were all assaulting his father who suffered injuries on his head and hand. It is stated that his father Nagulal fell on the ground and at that time his mother Leelabai and his neighbour Ashok Panchal also came to the spot and after seeing this, the appellants ran away from the spot. The injured Nagulal was taken to the Ratlam hospital where the Doctors informed that he has already died. In the Trial, the learned judge of the trial Court vide impugned judgment dated 28/12/2013 has convicted all the appellants as aforesaid. Hence, this appeal.Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 5
4] Learned counsel for the appellants has submitted that the appellants have been falsely implicated in the case as it is a case where all the family members of Gendalal have been falsely implicated due to personal. Counsel has submitted that the deceased was in the business of money lending and had also lent to various persons which also used to lead to disputes with them. Counsel has drawn the attention of this Court to the deposition of PW/6 Bhanwarlal, the son of the deceased who in para 15 of his deposition has admitted that he knows Bherulal, Poonamchand, Sunil, Babu, Banshilal, Mukesh, Ranchhod and Dulichand and has admitted that with all these persons, his father had some dispute and except Bhanwarlal, all of them had set on fire the fence of their fields. Counsel has also submitted that even otherwise, it was a case where the incident took place at the spur of the moment which is also the case of the prosecution wherein it is stated that earlier the appellant Gendalal, his wife and his son had passed by the house of the deceased Nagulal and as a quarrel took place between them on account of an objection taken by the deceased Nagulal for using the road passing through his house, they came back armed with various weapons. Thus, it is submitted that it is not a case of premeditated murder but a case of assault only which has resulted into death of the deceased without there being any intention to cause death. Counsel has also drawn the attention of this Court to deposition of PW/4 Dr. Bharat Ninama who has conducted the post-mortem of the deceased which is proved as Exhibit P/19 and Exhibit P/20 is Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 6 the query report in which he has stated that the injuries suffered by the deceased can be caused by the weapons seized from the accused/appellants. It is further submitted that all the appellants are lodged in jail since 01/10/2011 and as such they have already completed more than 10 years of incarceration. Hence, as the case falls under Section 304 (I) or (II) of IPC, it is submitted that the appellants be released and their sentence be reduced to the sentence already undergone by them.
5] On the other hand, learned counsel for the respondent/State has opposed the prayer and it is submitted that no illegality has been committed by the learned Judge of the Trial Court in appreciating the evidence and convicting the appellants as aforesaid. Thus, it is submitted that the appeals be dismissed.
6] Heard learned counsel for the parties and perused the record. 7] From the record, it is apparent that the deceased Nagulal died on 29/09/2011 itself when the incident took place and as per the post-mortem report Ex.P/19, he had suffered as many as seven injuries on various parts of his body. According to PW/4 Dr. Bharat Ninama, the cause of death is said to be excessive bleeding. As per Dr. Ninama, the deceased had suffered following injuries:-
1. Incised wound on the left parietal region measuring 5x2 cm bone deep.
2. Lacerated wound on the right eyebrow measuring 2x1 cm bone deep
3. Lacerated wound on right ear 4x1 cm Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 7
4. Incised wound on the right parietal region of the skull measuring 4x1 cm by bone deep
5. Fracture of right forearm
6. Two lacerated wounds on the left hand above elbow measuring 2x1 cm and 1x1 cm each
7. Incised wound on the occipital region of the skull measuring 1x1 cm bone deep 8] The query report is proved as Ex.P/20 by him and it is stated that the injuries suffered by the deceased can be caused by the weapons seized from the accused persons, however, in his cross examination he has admitted that he has not mentioned as to from which weapon, which injury can be caused.
9] On a close scrutiny of the deposition of PW/6 Bhanwarlal, who happens to be the son of the deceased and the first person who had seen the incident or who had reached on the spot, it is found that he has mentioned that at the time of incident, he saw Gendalal was having a stick, Vishnu was having an axe and both, Chandabai as also Yashodabai were having Darata in their hands, however, he has not mentioned as to on which part of the body which injury was caused by which of the accused persons.. It is true that in in normal circumstances, it is not expected that a witness should remember all the minute details of the incident but it becomes relevant when all the family members of one family have been implicated including the ladies member.
Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 810] It is also clear that PW/6 Bhanwarlal had also suffered a minor injury on his right hand's thumb which is proved by PW/1 Dr. Yogesh Nikhara who has stated that on 01/10/2011, he had examined Bhanwarlal and had found that he had swelling on his right palm. Thus, the presence of Pw/6 Bhanwarlal cannot be denied on the spot. However, it is also found that he appears to have reached on the spot when the incident had already taken place and when he tried to intervene; appellant No.1 Gendalal gave him a stick blow. This fact is also apparent from para 11 of his cross examination, in which he has stated that when he reached on the spot, he saw his father was already lying on the ground and it was not his case that his father was standing and was being assaulted by the accused persons.
11] It is found that nowhere in his deposition, PW/4 Dr. Bharat Ninama has mentioned that the injuries were sufficient in the ordinary course of nature to cause death, coupled with the fact that it is also not opined by the Doctor that which injury was caused by which of the weapons used by the accused persons and also no specific overt act has been attributed by PW/6 Bhanwarlal to any specific accused and the fact that all the family members of the appellant No.1 Gendalal have been implicated in the case. It is also found that the incident took place in a very short span of time, after a sudden altercation between the parties which was provoked by the deceased himself when he told the A-Gendalal not to pass through the road in front of his house, the appellants went to home and came Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 9 back with weapons which were household items only viz., stick, axe, and darata (sickle) and assaulted the deceased. It is also not known if any injury was actually caused by the A-Chandabai and A- Yashodabai as the doctor has not opined which injury can be caused by which weapon. It also appears rather improbable that A-Gendalal would also bring his wife Chandabai and daughter Yashodabai, 21 years only, to involve them in the murder. Yet another circumstance in favour of the appellants is that in the FSL report Ex.P/37, it has come that none of the weapons seized from the appellants had blood on them.
12] At this juncture, it will also be fruitful to rely upon on a decision rendered by the Supreme Court in the case of Ponnam Chandraiah v. State of A.P., reported as (2008) 11 SCC 640 :
(2008) 3 SCC (Cri) 993, at page 641. It is important to take note of the facts of this case as well so as to form an opinion about the applicability of this decision on the case on hand, the relevant paras of the same read as under:-
"5. On 3-7-2003 morning, PW 1 and the deceased went to the house of the sarpanch and raised a dispute. The sarpanch called A-1 and informed about the incident. A-1 admitted his guilt in the presence of PWs 9 and 10. On the same day at about 6.00 p.m., A-1 to A-16 came to the house of the deceased and attacked him. A-1 beat the deceased with a stick. The deceased ran into the house and bolted the door. In the meanwhile, when PW 2 intervened to rescue the deceased, A-1 beat him with a stick. A-3 broke the doors and all the accused entered the house and beat the deceased. Some of the accused were armed with iron rods and axes. They beat the deceased indiscriminately. Then the deceased ran out from the house. The accused chased and beat him indiscriminately. Finally, Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 10 the deceased fell down at the Gram Panchayat Office on receipt of the injuries. Later, the deceased was taken in an auto to Government Hospital, Sulthanabad. On the advice of the doctor, they went to the police station and gave Ext. P-1, report. On the basis of Ext. P-1, the police registered a crime for the offences under Sections 147, 148, 448, 307, 327 read with Section 149 IPC. Thereafter, the deceased and PW 2, who received injuries, were referred to Government Hospital, Karimnagar.
6. The deceased, while undergoing treatment, succumbed to the injuries. After the death of the deceased, the sections of law were altered in the crime through the alteration memo. The Inspector of Police took up the investigation, prepared the rough sketch, observed the scene of offence, held inquest over the dead body of the deceased, seized MOs 1 and 2 and later sent the dead body for post-mortem examination. The accused were arrested and weapons were recovered. After completion of the investigation, the police laid the charge-sheet. The accused denied the charges and claimed trial."
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13. In Criminal Appeal No. 222 of 2007, this Court has occasioned to deal with the cases of some of the co-accused persons. In that case it was concluded as follows:
"If the evidence on record is considered on the touchstone principles set out above, the inevitable conclusion is that the proper conviction would be under Section 304 Part I IPC instead of Section 302 IPC. The conviction of the appellants is accordingly altered from Section 302 read with Section 149 to Section 304 Part I read with Section 149 IPC. Custodial sentence of 10 years would meet the ends of justice. The findings of the guilt in respect of other offences and the sentences imposed do not warrant interference. The sentence shall run concurrently. In view of what has been stated in the aforesaid criminal appeal, the appeals are allowed to the aforesaid extent."
(emphasis supplied) 13] Testing the facts of the case on hand, on the anvil of the aforesaid dictums of the Supreme Court, in the attending Signature Not Verified Signed by: KHEMRAJ JOSHI Signing time: 23-08-2022 11:07:05 11 circumstances this Court is of the considered opinion that it is not safe to convict the appellants under Section 302/34 of IPC and instead, the case would fall u/s.304 part I/34 of IPC only. 14] Accordingly, the appeals stand partly allowed and the sentence awarded to the appellants under Section 302/34 of IPC is hereby reduced to an offence under Section 304(I)/34 of IPC and considering the fact that all the appellants are in jail since 01/10/2011 i.e. more than 10 years, their sentence is hereby reduced to the sentence already undergone by them. The appellants be released forthwith, if not required in any other case.
Original copy of this order be kept in Cr.A. No.99/2014 and copy whereof be placed in connected appeal.
(SUBODH ABHYANKAR) (SATYENDRA KUMAR SINGH)
JUDGE JUDGE
krjoshi
Signature Not Verified
Signed by: KHEMRAJ JOSHI
Signing time: 23-08-2022
11:07:05