Madhya Pradesh High Court
Karan vs The State Of Madhya Pradesh on 3 September, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
NEUTRAL CITATION NO. 2024:MPHC-JBP:44757
1 CRA-6078-2021
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 3 rd OF SEPTEMBER, 2024
CRIMINAL APPEAL No. 6078 of 2021
KARAN AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Baboo Ji Chourasia, learned counsel for the appellant.
Shri Manas Mani Verma, learned Public Prosecutor for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal This criminal appeal is filed by the appellants- Karan, Sonu alias Monu and Prem Bai being aggrieved by the impugned judgment dated 21/09/2021 passed by learned 1st Additional Sessions Judge, Rehli, Distt. Sagar (MP) in S.T. No.13/2017 whereby appellants have been convicted under Section 302 read with Section 34 of IPC and sentenced to undergo imprisonment for life and fine of Rs.1,000/- to each appellant with default stipulation of R.I. for three months to each appellant.
2. It is submitted that prosecution case, in brief, is that on 07/01/2017 at Village Chandpur at about 9.30 p.m. incident took place near the compressor shop of one of the appellants namely Karan Ahirwar.
Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41NEUTRAL CITATION NO. 2024:MPHC-JBP:44757 2 CRA-6078-2021
3. Complainant- Ashokrani (P.W.1) reported that her husband Ishwar worked as a Mistri. When he did not return home till 9.30 p.m., then Ashokrani (PW-1) along with her daughter Priyanka (PW-2) and both son Vivek alias Gole (PW-11) and Vikas (PW-12) had gone towards Shadi house to look for her husband where she found Ishwar sitting near the shop of Karan Ahirwar and, according to the prosecution story, Karan and Sonu were armed with an axe whereas accused Prem Bai was armed with a lathi and they were quarrelling with Ishwar. Karan and Sonu were abusing Ishwar and when Ishwar asked them not to abuse him, then Karan and Sonu threatened him with life, as a result of which Karan and Sonu armed with an axe had beaten Ishwar. As a result of which blood was oozing. He had sustained injuries in right wrist, right waist and left leg. Prem Bai had also hit Ishwar with a lathi.
4. It is submitted that whole story of prosecution is concocted. Dehati Marg Intimation is Ex.P/1, Dehati Nalsi is Ex.P/2, spot map is Ex.P/3. It is pointed out that in the spot map, place of incident is near Tapra of Sunil which is in between Tapra of Sunil and Compressor shop of Karan. Referring to spot map, it is submitted that the appellants are not aggressors. They were working at their shop and when Ishwar, under the influence of alcohol, tried to create nuisance, at the spur of moment, incident took place.
5. Reading from the evidence of Yashwant (PW-3), it is pointed out that in para-6 of his cross-examination, it is mentioned that it is wrong to say that both Karan and Sonu had hit Ishwar on his head with an axe. He admitted Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44757 3 CRA-6078-2021 that it was Karan only who had hit Ishwar with an axe. Sonu had not hit Ishwar with an axe on his head. Reading from the evidence of Vivek alias Golu (PW-11), son of deceased-Ishwar, it is pointed out that he has admitted in para-17 that his father used to drink alcohol. He has also admitted in para-18 that under influence of alcohol, Ishwar used to engage in altercation with his wife. In para-19 there is another glaring aspect that when these witnesses reached the place of incident, Ishwar was lying on the floor. Later on this witness improvised and stated that Marpeet was going on. In para-29 of cross-examination, this witness has admitted that whenever his father used to get late, they used to lock their house and go out for his search. In para- 30 this witness has deposed that they used to go out and search of their father because they apprehended that he may not indulge in any altercation after consuming alcohol.
6. It is further submitted that there is a suggestion that on the date of incident dispute was in regard to Puja, D/o Prem Bai on whom certain building material had fallen, as a result of work of deceased- Ishwar who was engaged in the occupation of Mishtri.
7. Reading from the evidence of Dr.R.G. Pandey (PW-10), it is pointed out that doctor has admitted that deceased-Ishwar was subjected to post- mortem. He had one injury measuring 1 x 10 cm abrasion on the left hand side of the back. Injury No.2 was a lacerated wound measuring 1 x 4 cm on the left hand wherein injury No.3 was an incised wound measuring 2 cm x 2 cm x 8 cm in the middle of the head caused by hard and sharp object. This doctor has further opined that injury No.3 resulted in excessive bleeding Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44757 4 CRA-6078-2021 causing death. On removal of heir he had found fracture in the head. Cause of death is attributed to cardio respiratory failure on account of damage to the vital centre of brain. Post-mortem report is Ex.P/14 and query report is Ex.P/15. Thus, it is submitted that in a free fight, incident took place resulting in a single injury. In the query report, it is mentioned that the axe which was produced could have caused death. It has come in the cross- examination of Dr. R.G. Pandey (PW-10) that whether one axe was sent along with query or more than one axe were sent. This witness also admitted that it is not mentioned in the query report Ex.P/15 that the axe contained blood marks. Thus, it is submitted that it is only one axe which was used by the assailants which became reason for death of the deceased and if that being so, all persons cannot be convicted with the aid of Section 34 of IPC.
8. It is further submitted that conviction of Prem Bai is uncalled for. Section 34 of IPC has been wrongly invoked to convict Prem Bai. Her presence alone is proved none of the injuries could be proved or attributed to Prem Bai.
9. Learned Public Prosecutor opposes the prayer and submits that this is a fit case to maintain conviction and there is no need for any indulgence.
10. After hearing learned counsel for the parties and going through the record, Section 34 of IPC is invoked when an act is done by several persons in furtherance of common intention. As the facts have been narrated above, common intention could have been gathered even from the place of the incident. If place of incident would have been the house of Ishwar, then it Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44757 5 CRA-6078-2021 could have been said that all the aggressors after forming a common intention approached his house or work place to cause injury which was homicidal in nature. In the present case, spot map Ex.P/3 clearly reveals that place of incident is between the shop of Sunil and Karan. Place of incident is 10 ft. away from the compressor shop of Karan. It is 21 ft. from the shop of Sunil. House of Jagdish is on the other side of the road. No where in the vicinity, house of Ishwar is shown that he was resident of the said place and when incident took place, aggressors had approached his house to cause injuries to him.
11. In view of such facts, merely presence of Prem Bai and then omnibus allegation that she was armed with a lathi, is not a sufficient ingredient to prove common intention so to invoke provisions of Section 34 of IPC. No overact is attributed to Prem Bai to cause injuries to Ishwar. Injuries to the body of Ishwar are attributed to Karan/Sonu. No pre-oriented plan and acting in pursuance of that plan could be established by the prosecution, therefore, conviction of Prem Bai with the aid of Section 34 of IPC is not made out. Hence, conviction of Prem Bai is hereby set aside.
12. Vivek @ Golu (PW/11), who is a child witness has clearly admitted in para 37 of his cross-examination that except for himself, Priyanka (PW/2), Vikas (PW/12) and his mother Ashok Rani (PW/1) and the accused persons, nobody else was available at the place of the incident. This deposition discards the evidence of Yashwant (PW/3).
13. Vivek @ Golu (PW/12), who is a child witness has admitted in para 25 of his cross-examination that the axe which had caused injury on the head Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44757 6 CRA-6078-2021 of his father, was hit by Sonu.
14. In view of such fact that there is a single injury on the head of the deceased Ishwar and that was caused by Sonu, conviction of appellants, namely, Karan S/o Deena @ Komal, Sonu @ Monu S/o Prabhu Ahirwar and Prem Bai D/o Prabu Ahirwar under Section 302 read with Section 34 IPC is legally not sustainable. Firstly, all the three accused could not have been convicted under Section 302 read with Section 34 IPC. Secondly, there has to be conviction of the main accused who appears to be Sonu in the present case, in the light of the evidence of Vivek @ Golu (PW/11) under Section 302 IPC and then there could have been conviction of Karan and Prem Bai under Section 302 read with Section 34 IPC for abetting or adding the crime.
15. However, theoretically, above proposition may be correct, but fact of the matter is that the place of the incident is near the shop of Karan and merely his presence is not sufficient to record conviction with the aid of Section 34 IPC. It is not pointed out that they had any common intention. Similarly, Prem Bai, who is sister of Sonu appears to have been roped in with a view to settle scores with the family, inasmuch as, there is no overt act on the part of Prem Bai. The evidence of witnesses saying that Prem Bai had hit Ishwar with a lathi, is not made out.
16. Dr. R.G. Pandey (PW/10) has admitted that the injuries sustained by Ashok Rani were simple in nature. The injury which was in the nature of incised wound on the head of deceased Ishwar was fatal and Ishwar died of excessive bleading. He has admitted that injury was caused with an axe. Which of the axe was produced before him as Article A/7 and A/8 had Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44757 7 CRA-6078-2021 caused injury, is not mentioned in the query report Ex.P/15.
17. Query report clearly makes a mention that injury could have been caused from the seized axe. It does not make any mention about any injuries caused by lathi or which of the axe could have caused those injuries. Therefore, conviction of Prem Bai is not sustained in the eyes of law. It is, hereby, set aside. Similarly, conviction of Karan is also not made out because none of the ingredients of Section 34 IPC are fulfilled.
18. Since the incident took place at the spur of movement and it is an admitted fact as admitted by Vivek @ Golu (PW/11) in para 30, that they used to go out in search of the deceased Ishwar because they always used to be under apprehension of their father entering into a quarrel under the influence of the alcohol coupled with the fact that defence has been able to bring out a theory that dispute had occurred because some building material over one Pooja, daughter of Prem Bai, it is evident that incident took place at the spur of movement and there was no premeditation. Single injury itself points out towards the fact that there was no intention to cause homicidal death of Ishwar and, therefore, conviction of Sonu @ Monu S/o Prabhu Ahirwar under Section 302 with the aid of 34 IPC is set aside. He is convicted under Section 304 Part-I IPC. He has already undergone incarceration for 07 years, 07 months and 07 days, therefore, he is sentenced to the extent of the period of incarceration already undergone.
19. In above terms, this appeal is partly allowed. Impugned judgment passed by the trial Court is, hereby, set aside. Appellant Prem Bai is on bail, her bail bonds are hereby cancelled. Appellant Karan and Sonu @ Monu are Signature Not Verified Signed by: TULSA SINGH Signing time: 06-09-2024 17:47:41 NEUTRAL CITATION NO. 2024:MPHC-JBP:44757 8 CRA-6078-2021 in jail, they be released forthwith, if not required in any other case.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
ts
Signature Not Verified
Signed by: TULSA SINGH
Signing time: 06-09-2024
17:47:41