Madhya Pradesh High Court
Harjendra @ Golu vs The State Of Madhya Pradesh on 2 May, 2025
Author: Hirdesh
Bench: Anand Pathak, Hirdesh
1
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE ANAND PATHAK
&
HON'BLE SHRI JUSTICE HIRDESH
ON THE 2ND MAY OF 2025
CRIMINAL APPEAL No.383 OF 2023
HARJENDRA ALIAS GOLU
Versus
THE STATE OF MADHYA PRADESH
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Appearance:
Shri Ravi Rahul- learned Counsel for appellant.
Shri Vijay Sundaram- learned Public Prosecutor for respondent- State.
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JUDGMENT
Per Justice Hirdesh :
Today, case is listed on I.A. No.7260 of 2025, third application under Section 389(1) of CrPC for suspension of jail sentence and grant of bail, moved on behalf of sole appellant- Harjendra alias Golu. Earlier applications were dismissed as withdrawn respectively.
2. With the consent of both the parties, matter is heard finally on merits. Accordingly, I.A. No.7260 of 2025 stands closed.
3. The instant criminal appeal under Section 374 of CrPC has been filed by appellant-Harjendra @ Golu assailing the judgment of conviction and order of sentence dated 22/12/2022 passed by First Additional Sessions Judge, Karera, District Shivpuri (M.P.) in Sessions Trial No.186 of 2018, whereby appellant has been convicted under Section 323 of IPC (for causing injury to injured Prabha 2 Joshi) and sentenced to undergo one year's RI with fine of Rs. 500/-, under Section 323 of IPC (for causing injury to injured Jitendra Joshi), sentenced to undergo one year's RI with fine of Rs 500/- and under Section 302 of IPC (for commission of murder of Rahul Rajak) and sentenced to undergo Life Imprisonment with fine of Rs.1,000/- with default stipulations.
4. In brief, the prosecution case is that on 10/07/2018 around 05:15 in the evening, complainant- Prabha Joshi (P.W.1) along-with her son Jitendra Joshi and neighbour- Rahul Rajak in injured condition lodged an FIR (Ex.P1), alleging that on 10/07/2018 around 2.00 pm, appellant- Golu Joshi told her that her son Jitendra used to talk with his daughter Chhaya Joshi (daughter of Ramesh Joshi), whose marriage has already been engaged. Upon which, she told Golu Joshi (appellant) that her son does not do such type of things. Thereafter, Golu Joshi, his father Mahesh Joshi, mother- Meena Joshi and Ramesh Joshi started abusing her. When she refused to do so, all of them started beating her by means of lathi, as a result of which, she got injured on back of her head and left hand and blood started oozing. When her son Jitendra and neighbour- Rahul Rajak intervened, all of them also started beating them due to which, her son Jitendra got seriously injured on his back and neighbour Rahul got injury on his head and started bleeding. Sukhan Rajak and Guddu are the witnesses of alleged incident.
5. On the basis of information given by complainant, FIR vide Crime No. 324 of 2018 was registered by Police Station Karera, District Shivpuri for offence punishable under Sections 324, 323, 294, 506, 34 of IPC against appellant- accused Golu Joshi, co-accused Meena Joshi, Mahesh Joshi and Ramesh Joshi. Injured Prabha Joshi (PW-1), Rahul Rajak and Jitendra Joshi (PW-2) were sent to Community Health Centre, Karera District Shivpuri for medico-legal examination. Rahul Rajak was referred to District Hospital, Shivpuri for further treatment and X-ray examination from where, he was referred to Gwalior. During treatment, in the intervening night of 12-13 th July, 2018. Rahul Rajak died. Due to his death, prosecution enhanced the offence under Section 302 of IPC against 3 the accused. Safina Form Ex.P.3 was prepared, witnesses were summoned and in presence of witnesses, postmortem of deceased was conducted, spot map (Ex.P.2) was prepared, accused were arrested and relevant seizures were made. After completion of investigation and other formalities, charge sheet was filed against all the accused before the competent Court from where the case was committed to the Sessions Court.
6. Charges were framed and read over to the accused. Accused abjured their guilt and pleaded complete innocence. Statements of accused were recorded under Section 313 of CrPC.
7. Prosecution, in order to prove its case, examined as many as 13 witnesses whereas not a single witness was examined on behalf of accused in their defence.
8. After conclusion of trial, the Trial Court on the basis of prosecution evidence as well as exhibited material/documents available on record, acquitted co-accused Mahesh Joshi, Ramesh Joshi and Meena Joshi from offence punishable under Section 323/34, 307/34, 302/34 of IPC and found appellant guilty of alleged offence and sentenced him, as stated in Para 3 of this judgment.
9. It is contended on behalf of appellant that the trial Court has committed an error in convicting present appellant without going through the evidence in proper perspective. Amar Singh (PW-4), Chhaya (PW-6) and Manish (PW-8) have been examined in order to support prosecution version, but they are not actually witnesses of the alleged incident and Sukhan Rajak (PW-3) mother of deceased Rahul Rajak is also not an eye-witness of the incident. Neither any blood was found on the seized lathi nor it was sent for FSL examination, therefore, the prosecution story appears to be doubtful regarding use of lathi by the appellant in the alleged incident. There are contradictions in the police diary statements and Court statements of the prosecution witnesses.
10. Further contention of learned Counsel for appellant that in a heat of passion as well as sudden provocation in hot exchange of words, the alleged incident took place at the spur of moment over the trivial matter. Either there was any 4 intention or any pre-meditation/pre-plan of appellant for inflicting lathi blow, which unfortunately resulted into death of deceased. Therefore, offence against appellant is not proved under Section 302 of IPC. At the most, offence would fall under Section 304 Part II of IPC. On these grounds, it is prayed that the impugned judgment of conviction and order of sentence passed by learned Trial Court deserves to be set aside, by allowing the instant appeal.
11. On the other hand, learned Counsel for State supported the impugned judgment and submitted that on the basis of oral, documentary evidence and medical evidence available on record, appellant was found guilty by prosecution beyond reasonable doubt. The appellant has not produced any evidence in his defence. The findings arrived at by learned Trial Court do not require any interference by this Court. No leniency can be adopted in favour of the appellant. Hence, prayed for dismissal of this appeal.
12. Heard counsel for parties at length and perused the record.
13. The first question for determination of instant appeal is whether death of deceased was homicidal in nature or not ?
14. Dr. Pradeep Sharma (PW-7) in his evidence deposed that on 10 th of July, 2018, he was posted as Medical Officer in Community Health Centre, Karera, District Shivpuri. Upon medico-legal examination vide MLC Ex.P-5, he found a lacerated wound measuring 4x½ cm located in the right upper part of head of Rahul Rajak and edge of wound was curved and redness and towards head from front. Rahul Rajak was in unconscious state at the time of examination. Injury was caused by hard and blunt object within 24 hours of examination. Therefore, Rahul Rajak was referred to District Hospital, Shivpuri for X-ray and further treatment.
15. Dr. H.L. Manjhi (PW-12) in his evidence deposed that on 13 th of July, 2018, he was posted as Medical Officer (Forensic Medicine Department), GR Medical College, Gwalior. The body of deceased Rahul Rajak was brought by Constable Yogendra Singh of PS Kampoo and was identified by his father Amar 5 Singh. Upon autopsy examination, he found injection mark on the right hand of deceased, both eyes and mouth of deceased were closed and pupils were left open and legs were spread apart as well as bruises and redness were visible on the back of body. Sutured wound was present on the parietal region of head with four stitches, 11 cm above the right ear with four stitches. As per his opinion, death of deceased was due to failure of cardiac arrest as a result of head injury caused by hard and blunt object. Duration of death was within 6 to 24 hours before postmortem examination. Nature of death should be decided on the basis of circumstantial evidence and nature of injury should be considered as per evidence of MLC and treating doctors.
16. Considering the medical opinion given by treating doctors, nature of injuries sustained by deceased Rahul Rajak and the evidence of complainant - Prabha Joshi (PW-1), which are substantially rebutted on the point of injury on the body of deceased, it is clear that death of deceased was homicidal in nature.
17. The next question for determination is whether appellant had inflicted lathi blow on the head of deceased or not by which the deceased succumbed to injuries ?
18. This Court thinks it apposite to go through the evidence of following material witnesses:-
19. Injured-complainant Prabha Joshi (PW-1) in her examination-in-chief deposed that on the date of incident, she was at home. Accused Mahesh, Ramesh, Golu (appellant), Meena, Chhaya and her mother Gudiya came to her house and said that her son talks to Chhaya and started abusing her. When she objected, all of them started beating her with lathi due to which, she got injuries on her body and chest. On hearing her scream, her son Jitendra and son of Amar Singh- Rahul came to save her. All the accused together started beating them with intention to kill them, as a result of which, her son Jitendra sustained injuries on his head and back. Appellant Golu with intention of kill inflicted lathi blow on the head of Rahul and everyone started hitting him due to which, he got a head injury and 6 blood oozed out. At the time of incident, Sukhan Rajak and Guddu intervened and saw the incident. Accused left the place after giving a threat. This witness in Paras 6, 7 and 11 of her cross-examination admitted that there was no previous enmity of deceased with accused. Accused Golu came to her house to complain that her son Jitendra talks to Chhaya Joshi D/o Ramesh Joshi and this witness was aware that marriage of accused Golu was engaged with Chhaya Joshi. This witness and accused Golu had a peaceful conversation at her house. She in Para 9 of her cross-examination deposed that she cannot tell who had inflicted injuries on Rahul Rajak and which accused had inflicted injuries on her son Jitendra. This witness further in Para 10 of her cross-examination, deposed that on hearing noise, her son and deceased Rahul Rajak came and Jitendra abused accused Golu and asked him why he came to his house. This witness in Para 17 of her cross- examination deposed that on hearing scream, Rahul and Jitendra came. Apart from this no one had come. After quarrel is over and deceased Rahul Rajak was injured, Guddu and Sukhan came.
20 Another injured witness (son of complainant)- Jitendra Joshi (PW-2) in his evidence deposed that when he tried to save his mother, all accused beat her with lathi due to which, he got injured. Accused Golu inflicted lathi blow at Rahul due to which, Rahul got head injuries and he fell unconscious. Sukhan Rajak intervened and saw the incident. This witness in Para 9 of his cross-examination deposed that accused came inside his house. There was an altercation between his mother and accused Golu. His mother had shouted from inside the house. Rahul and he had gone inside his house after hearing scream. An altercation with accused had also taken place in house. This witness in Para 13 of his cross- examination admitted that accused Golu had come to his house on the basis of complaint made by Chhaya.
21. Sukhan Rajak (PW-3), who is mother of deceased, in her evidence deposed that on the date of incident around 02:00 pm, she was at home. On hearing shouts, she went out and saw that a fight was going on. When she reached there, 7 accused Golu inflicted her son Rahul with lathi from behind, which hit his head due to which, blood started oozing. All the accused had beaten Prabha and Jitendra with intention to kill. She and Bhusan had intervened. This witness in Para 2 of her cross-examination admitted that there was no previous animosity between her son Rahul and accused. This witness in Para 3 of her cross- examination deposed that Rahul was injured at the door outside the house of complainant Prabha Joshi and she was bringing her son Rahul from inside the house and as soon as she came out of house on road, she saw a lathi blow was inflicted to the head of Rahul from behind. This witness in Para 7 of her cross- examination deposed that accused Golu had inflicted lathi blow from behind, but she cannot tell the reason for it as to why this fact is not written in her police diary statement. This witness in Para 8 of her cross-examination deposed that Jitendra, son of complainant Prabha had tried to assault accused Golu and her son Rahul went to intervene there.
22. Amar Singh (PW-4), who is father of deceased, deposed that he had gone for work on the date of alleged incident. He reached home after getting information and found that his son Rahul was lying unconscious on the ground. He had wounds on his head and found bleeding. His son was beaten up by Golu and other co-accused. He took his son to police station and from there, he was sent to Karera Hospital and from where, he was referred to District Hospital, Shivpuri. From Shivpuri also, his son was referred to Gwalior where he was admitted for two days and thereafter, he died during treatment. This witness in Para 3 of his cross-examination deposed that he heard that his son Rahul had gone to mediate the fight between Jitendra and Golu and while intervening in the quarrel took place between Jitendra and Golu, he was inflicted with lathi blow.
23. Considering the evidence of PW1- Prabha Joshi, PW-2 Jitendra Joshi and PW-3 Subkan Rajak and Amar Singh (PW-4), it was found that they are intact in their cross-examination. Substantially, there are no contradictions and omissions in their evidence. So, the evidence of injured witness PW1- Prabha Joshi and 8 PW2 Jitendra Joshi cannot be doubted and there is no reason to discard their evidence. From the evidence of these witnesses, it appears that accused Golu had inflicted a lathi blow on the head of deceased, which leading to his death.
24. The next question for determination is whether appellant had inflicted lathi blow with intention of causing death of deceased or not ?
25. The provision has been enshrined under Section 304 of IPC regarding punishment for culpable homicide not amounting to murder. Regarding awarding appropriate sentence to the accused, the Hon'ble Apex Court in the matter of Gummukh Singh vs. State of Haryana (2009) 15 SCC 635 after considering catena of decisions of Jagrup Singh vs. State of Haryana (1981) 3 SCC 616, Gurmail Singh and Others vs. State of Punjab (1982) 3 SCC 185, Kulwant Rai vs. State of Punjab (1981) 4 SCC 245, Jagtar Singh vs. State of Punjab (1983) 2 SCC 342, Hem Raj vs. State (Delhi Administration), [1990] Supp. SCC 291, Abani K. Debnath and Another vs. State of Tripura (2005) 13 SCC 422 and Pappu vs. State of MP (2006) 7 SCC 391, has observed that when an incident is taken place at the spur of moment, accused inflicted a single blow and is not involved in any overt act, there is no intention or premeditation in the mind of accused to inflict such injury to deceased as was likely to cause death in ordinary course of nature, then conviction of the accused cannot be sustained under Section 302 of IPC and accused ought to be convicted under Section 304 Part II of IPC. (23) The Hon'ble Apex Court in the matter of Gurmukh Singh (supra) in detail has discussed the following relevant factors, which are required to be taken into consideration before awarding appropriate sentence to accused.
''23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:
a) Motive or previous enmity;9
b) Whether the incident had taken place on the spur of the moment;
c) The intention/knowledge of the accused while inflicting the blow or injury;
d) Whether the death ensued instantaneously or the victim died after several days;
e) The gravity, dimension and nature of injury;
f) The age and general health condition of the accused;
g) Whether the injury was caused without pre-
meditation in a sudden fight;
h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;
i) The criminal background and adverse history of the accused;
j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;
k) Number of other criminal cases pending against the accused;
l) Incident occurred within the family members or close relations;
m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?
These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.''
26. Reverting to the genesis of case at hand, on perusal of material available on record, it is crystal clear that there was no previous enmity between deceased Rahul and accused Golu. On the alleged date of incident, accused Golu had come 10 to the house of complainant Prabha Joshi (PW-1) to complain her that Jitendra talks to Chhaya Joshi, daughter of Ramesh Joshi, whose marriage was already engaged. When all of a sudden, a quarrel took place in the house of complainant Prabha Joshi, deceased Rahul, who happens to be a neighbour of complainant had gone to the spot to mediate the fight which was going on between Jitendra and Golu and while mediating, it is alleged that accused Golu inflicted a lathi blow on the head of deceased Rahul from his behind.
27. So far as the injuries sustained by complainant Prabha Joshi (PW-1) and his son injured Jitendra Joshi (PW-2) are concerned, as per the medico-legal examination of both injured conducted by Dr.Pradeep Sharma (PW-7), it is apparent that both the injured had sustained injuries caused by hard and blunt object which were simple in nature. As per allegation, appellant Golu Joshi along with his father Mahesh Joshi, mother Meena Joshi and Ramesh Joshi had gone to the house of complainant where a quarrel took place. Both injured sustained injuries of lathi blows inflicted by accused. Therefore, the trial Court has rightly convicted the accused for commission of offence under Section 323 of IPC. No interference is required in the findings giving by the Trial Court regarding conviction of appellant and sentence in this regard.
28. Considering the law laid down by the Hon'ble Apex Court in the above- cited case of Gurmukh Singh (supra), the evidence available on record indicates that a quarrel took place at the spur of moment in a heat of passion and hot exchange of words in between complainant party and accused party. Neither there was any premeditation or pre-plan nor intention of appellant to cause death by particular injury, which has proved fatal as per medical evidence. Therefore, the offence committed by appellant falls within the ambit of Section 304 of Part II of IPC. This Court instead of convicting appellant under Section 302 of IPC, finds it apposite to convict him under Section 304 Part II of IPC and sentence him to six years' rigorous imprisonment.
29. Resultantly, the instant criminal appeal so far as it relates to appellant stands 11 allowed in part by setting aside the judgment of conviction and order of sentence dated 22/12/2022 passed by First Additional Sessions Judge, Karera, District Shivpuri (M.P.) in Sessions Trial No.186 of 2018 for commission of offence under Section 302 of IPC and instead, appellant is convicted under Section 304 Part II of IPC and sentenced to undergo six years' rigorous imprisonment. The fine amount as awarded by Trial Court stands maintained. In default of payment of fine amount, the appellant shall have to undergo further one year's rigorous imprisonment. On completion of aforesaid period of six years' jail incarceration, after verification of jail authority concerned, the appellant shall be released, if not required in any other offence.
30. A copy of this judgment along with record be sent to concerned Trial Court, so also a copy of this judgment be forwarded to jail authority concerned for information and compliance (ANAND PATHAK) (HIRDESH) JUDGE JUDGE MAHE MKB Digitally signed by MAHENDRA BARIK DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, NDRA 2.5.4.20=8c6d4d6122d7ee987e457a3be c5922cacbc050c998981397a35d9758a2 b55074, postalCode=474001, st=Madhya Pradesh, serialNumber=AB90F893988F10D718D BARIK A01F8065D87F25DDC9B6C8C3FF0E5E2 80DD36D476F6BA, cn=MAHENDRA BARIK Date: 2025.05.22 15:53:54 +05'30'