Madhya Pradesh High Court
Kantu @ Bhojrao & Ors. vs The State Of M.P on 31 January, 2013
Author: Vimla Jain
Bench: Vimla Jain
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HIGH COURT OF MADHYA PRADESH AT JABALPUR
DIVISION BENCH:HON'BLE SHRI JUSTICE RAKESH SAKSENA
HON'BLE SMT JUSTICE VIMLA JAIN
CRIMINAL APPEAL No. 2087/2004
1.Kantu alias Bhojraj
Aged 27 years
S/o Yadorao
2.Gopal
Aged 19 years
S/o Parasnath
3. Sahabrao
Aged 20 years
S/o Santoshrao
4.Punjya
Aged 28 years
S/o Mahangya
All residents of Dolhan
Police Station Saikheda
District Betul (MP)
Appellants
Versus
State of Madhya Pradesh
Through Police Station Saikheda
District Betul (MP)
Respondent
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Shri Himanshu Chourasiya,Advocate with Shri Pramod Thakre,Advocate for the appellants.
Shri Amit Pandey, Panel Lawyer for the State. Date of hearing : 17.1.2013 Date of judgment: 31.1.2013 2 (J U D G M E N T ) Per: Vimla Jain, J Appellants preferred this appeal under Section 374(2) of the Code of Criminal Procedure being aggrieved by the judgment dated 17.11.2004 passed by Additional Sessions Judge, Multai, District Betul in Sessions Trial No.122/03, whereby each of the appellants has been convicted and sentenced as under with the direction to run both the jail sentences concurrently:-
Provision Sentence Under Section 307/34 of Rigorous imprisonment for ten years IPC and fine of Rs.200/-, in default of payment of fine, rigorous imprisonment for one year to each accused.
Under Section 302/34 of Rigorous imprisonment for life and IPC fine of Rs.500/-, in default of payment of fine, rigorous imprisonment for two years to each accused.
2. It is not in dispute that Hemraj alias Khemraj, son of Jagannath (PW.2) died during the course of his treatment at Suretech Hospital, Nagpur on 27.3.2003.
3. Brief facts of the case are that on 17-18/3/2003 in the midnight, Jagannath, S/o Ramrao Kumbi, aged 65 years, R/o Dolhan had gone to keep a watch over his field alongwith his son 3 Hemraj alias Khemraj. Jagannath was sleeping in his field alongwith his son. All of sudden, they heard the noise of pelting of stones. Jagannath woke up and asked as to who is pelting stones. On hearing the voice of Jagannath, accused Kantu alias Bhojrao, Punjya, Sahabrao and Gopal started abusing him and his son in filthy language. When Jagannath asked as to why they are using abusive/filthy language, accused Kantu hit Jagannath on his head by a stick. Accused Punjya also hit Jagannath by stick as a result Jagannath received injuries on his shoulder. Accused Sahabrao and Gopal started beating Jagannath by sticks. When Hemraj alias Khemraj, son of Jagannath, came to save his father, he was also beaten by the accused persons as a result of which, he sustained injuries on his hand, leg, back and ankle. It is alleged that accused persons caused MARPEET with Hemraj due to previous enmity, the report of such MARPEET was lodged by Hemraj at Police Station Saikheda earlier on 2.2.2003 vide Rojnamcha Sanha (Ex.P/52). Injured Jagannath and his son Hemraj alias Khemraj remained in their field during the night. In the morning of 18.3.2003, when Dwarkabai, wife of Jagannath, came to the field, Jagannath narrated the entire incident of last night and Dwarkabai immediately proceeded towards the village and informed about the incident to village Kotwar. Village Kotwar and Shankar reached the spot and 4 took Jagannath and Hemraj with them. On 18.3.2003 at about 10:30 am, Jagannath went to the Police Station, Saikheda and lodged the FIR vide Ex.P/1. Offence under Sections 294, 506, 323/34 of IPC had been registered against the accused persons and investigation commenced. During investigation, injured Jagannath and Hemraj alias Khemraj were sent to the hospital for their medical examination by Head Constable Surendra Shukla. After MLC (Ex.P/ 5 and Ex.P/59), Jagannath and Hemraj alias Khemraj were referred to the District Hospital, Betul for their treatment where they were admitted and treated vide Ex.P/14,15,19 and 20. Spot map was prepared vide Ex.P/3. Statements of witnesses were recorded. Later on, injured Hemraj alias Khemraj was referred to the Suretech Hospital, Nagpur for his betterment where during treatment he succumbed to his injuries on 27.3.2003. Report regarding death of Hemraj alias Khemraj was made to Police Station Dhantoli, Nagpur and the police party registered the marg intimation vide Ex.P/21 and Ex.P/22. Body of deceased Hemraj alias Khemraj was sent for postmortem vide Ex.P/25 to Medical College, Nagpur where postmortem of deceased was conducted vide Ex.P/26. After collecting the requisites documents regarding marg intimation from Police Station Dhantoli, Nagpur, offences under Section 307 and 302/34 of IPC had also been registered against the accused 5 persons and further investigation commenced by the Police Station, Saikheda. All the accused persons were arrested with the weapons used in commission of the offence.
4. After investigation, charge sheet was filed under Sections 302,307,325,323,294,506 read with Section 34 of IPC against the appellants before the Court of Judicial Magistrate First Class, Multai, who committed the case to the Court of Sessions and ultimately it was transferred to the learned Additional Sessions Judge, Multai, District Betul. On being charged with the offences under the said sections, the appellants/accused pleaded not guilty and complete innocence and claimed to be tried with the prayer that they had been falsely implicated in the case.
5. In order to bring home the charges against the appellants, the prosecution examined twenty-four witnesses and proved the documents (Ex.P/1 to P/58) on record. The appellants did not examine any witness in support of their defence.
6. The learned Court below, after scanning the evidence found the charges proved against the appellants, convicted them and sentenced them as hereinabove stated.
7. This appeal has been filed by the appellants assailing the said judgment of conviction and order of sentence. 6
8. The learned counsel for the appellants submitted that the trial Court has committed an error of law in holding that the offence under Section 302/34 of IPC has been made out against the appellants. According to him, the offence deserves to be converted under Section 304 Part II of the IPC. It was further submitted that appellants have already undergone the sentence of more than eight years.
9. On the other hand, learned Panel Lawyer for the State has supported the finding of the trial Court.
10. We have considered the arguments advanced by learned counsel for the parties and perused the record.
11. Injured witness Jagannath (PW .2) stated that he and his son Khemraj were in their KHALIHAN. At midnight at about 12 O'clock, when they were awake and sitting, appellants/accused persons Kantu alias Bhojraj, Punjya, Gopal and Sahabrao came there. Appellant Kantu inflicted blow of lathi on his head. Punjya inflicted blow of lathi on his shoulder. Sahabrao and Gopalrao also pushed him with lathi. He fell down. His son Khemraj came to save him. Then appellants/accused caught Khemraj. Two appellants caught his hands and two appellants caught his legs and beat Khemraj by lathis. Jagannath further stated 7 that he was conscious and he saw MARPEET of his son Khemraj by accused persons but he could not save him. He also stated that he recognized all four accused persons in moonlight. Firstly, accused persons abused him. They were saying that they would beat him. He also stated that he had no enmity with the accused persons. He did not know any reason about the MARPEET by them. After MARPEET,accused persons had gone. He and his son remained there. His son became unconscious and he was not in a position to walk. Therefore, they did not go to their home in the night. Next day his wife came. She saw their injuries and went back to village. She returned with bullock cart alongwith three/four persons. They came to their home by bullock cart. Then he went to Police Station Saikheda by jeep and lodged the report Ex.P/1. The police sent him with his son to Betul Hospital. He had been in the hospital for 7/8 days and his son was sent to Nagpur. After 3 days, his son died in Nagpur.
12. PW.3 Krishnrao, who is the brother-in-law of Jagannath stated that he brought Jagannath and his son by jeep to Poni and took them to Saikheda Police Station to lodge the report. He also went with them to Betul. Before they went to Police Station, 8 Jagannath told him that appellants/accused persons beat them.
13. The testimony of above mentioned injured witness Jagannath (PW.2) has been corroborated by the deposition of Dr. Harcharan Singh Bhatia (PW .23), who performed MLC of Jagannath vide Ex.P/5 and found following injuries on his person:-
1. Lacerated wound left to mid line with blood clotting admeasuring 5 cm X ½ cm X bone deep.
2.Lacerated wound parietal region left side with blood clotting admeasuring 4 cm X ½ cm X bone deep blood clotting.
3. Contusion over left side post surface below scapula red in colour admeasuring 5 cm X 3 cm.
4. Contusion over the left upper arm red in colour horizontally admeasuring 3 cm X 2 cm.
5. Contusion over the left buttock red in colour admeasuring 3 cm X 2 cm.
Opinion:- All injuries were within 24 hours of the examination and may be caused by hard and blunt object. For injury Nos. 1,2,3, surgical check up was advised whereas for injury Nos.9
4 and 5, Orthopedics was advised.
14. Dr.Ramesh Badve (PW.18) deposed that on 19.3.2003, he examined Jagannath and found that when he was brought to the hospital, he was in his senses. He did not vomit. He had a wound on left side of his chest.
The doctor advised Jagannath to go for Orthopedics Expert as well as X-ray. Jagannath remained in the hospital for seven days and was discharged on 26.3.2003. This witness proved the medical report of injured Jagannath vide Ex.P/14.
15. Dr.Yogesh Gadekar (PW.10) examined injured Jagannath on 20.3.2003 vide Ex.P/6 and found fracture of clavicle bone on left side of his shoulder. On query, the doctor opined that injury No.4 fracture of left clavicle bone was grievous in nature whereas injury No.5 on left buttock was simple in nature.
16. Dr.P.K.Tiwari (PW .12) took X-ray of the chest and left shoulder of Jagannath on 21.3.2003 vide Ex.P/7 and found fracture of mid shape clavicle bone of the left side.
17. From the facts of the prosecution on record, particularly the statement of injured witness Jagannath, 10 which is duly supported by the statement of Krishnrao (PW .3), it is established that the victim informed him (Krishnrao) about the incident. He took the victim to the Police Station to lodge FIR and he also went with him to Betul hospital. The evidence given by victim Jagannath is duly supported by the FIR and medical evidence. Therefore, offence under Section 307 of IPC is made out against the appellants. The learned trial Court has rightly convicted and sentenced the appellants for commission of offence punishable under Section 307 of IPC. We affirm the said conviction and sentence.
18. The next question that arises for consideration is whether on the basis of facts and circumstances of the case, as stated in the testimony of the aforesaid eye witnesses, the appellants can be convicted for the offence of murder of Hemraj under Section 302 of IPC or under Section 304 Part II of IPC.
19. The question with regard to nature of offence has to be determined on the facts and in the circumstances of the case. The nature of the injury whether it is on vital or non-vital part of the body, the weapon used, the circumstances in which the injuries are 11 caused and manner in which the injuries are inflicted are all relevant factors, which determine the intention or knowledge of the offenders and the offence committed by them.
20. In the instant case, injured witness Jagannath (PW .2) deposed that when deceased Khemraj came to save him then appellants caught his legs and hands and beat Khemraj by lathis.
21. PW.23 Harcharan Singh Bhatia performed MLC of Khemraj vide Ex.P/59 and found following injuries on his person:-
1. No external injury visible over head seen.
2. Bruise of right knee admeasuring 3 cm X 3 cm.
Opinion:- For injury No.1, chest X-ray and surgical check up were advised and it could have been caused by hard and blunt object. Injury No.2 was simple in nature and it could have been caused by hard and blunt object.
22. PW.18 Dr.Ramesh Badve also examined Khemraj alias Hemraj on 18.3.2003 vide Ex.P/19 and 12 opined that when he was brought to the hospital, he was unconscious. On examination of his head, the doctor found injury on his head. Hemraj was responding to the injury when it was touched.
23. Dr.P.K.Tiwari (PW .12) also examined skull X-ray of Khemraj dated 18.3.2003 vide Ex.P/12 and found soft tissue swelling, haematoma on vault of skull with fracture of left parietal bone.
24. PW.21 Dr.Nirmal Jaiswal of Suretech Hospital, Nagpur, who examined Hemraj, proved his report (Ex.P/56). According to the doctor, Hemraj was admitted in the hospital on the complaint of consumption of poison. His condition deteriorated and he went in coma. He called Dr.Sameer Narayan Paltewar for his surgery.
25. PW.20 Dr.Sameer Narayan Paltewar, Neurosurgeon of Suretech Hospital, Nagpur, who examined Hemraj, proved his death summary (Ex.P/32). According to the doctor, Hemraj was admitted to the hospital as a case of poisoning on 19.3.2003 but when his CT Scan was done, it showed massive extra dural haematoma producing mass effect with brain stern infact hemorrhage contusion in left parietal region with left sided 13 linear fracture of parietal bone but there was no external injury. Immediately, patient was taken to the Operation Theatre and operated by the doctor but could not survive, hence he was declared dead on 27.3.2003 at 11.30 am.
26. PW.8 Dr. Prakash Madhukarrao Mohitey conducted the postmortem of deceased Hemraj on 27.03.2003 vide Ex.P/26 and found following injuries on his person:-
EXTERNAL INJURIES
1. Stitch wound (surgical) transverse over forehead 4 cm above eyebrow. 15 cm in length with 17 stitches.
2. Abrasion over back of left ear. 4 cm X 3 cm with brownish black scab.
3. Abrasion 2 cm postero-lateral to left mastoid, 3 cm X 1½ cm, brownish black scab.
4. Contused abrasion on right ear 2 cm X ½ cm each with brownish black scab.
5. Bedsore over right buttock 3 cm X 3 cm.
INTERNAL INJURIES Under scalp haematoma present all over vault surface as a thin film, reddish brown. Evidence of craniotomy 14 over right frontal bone in 5 cm X 5 cm X 5 cm area stitched corresponding to injury linear oblique tissued fracture over left parietal bone about 13 cm in length with undisplaced middle 3 r d coronal surface fracture. Extra dural haematoma over left parietal region 3 cm X 2 cm X 1 cm and over right forward parietotemporal region in 8 cm X 6 cm X 1 cm reddish brown corresponding to craniotomy stitched pale. Subdural hemorrhage over right fronto parietal and temporal region in both parietal region as a thin film.
In his opinion, deceased expired due to intra-cranial hemorrhage associated with fracture skull due to head injury.
27. It is clear from the evidence of witnesses Jagannath (PW.2) and his wife Dwarkabai (PW.1) that injured Jagannath and deceased Khemraj alias Hemraj remained whole night in their fields in injured condition after the incident. The deceased could get the medical aid on 18.3.2003 at 11:45 pm. It appears that the deceased could get the medical aid after about 23 hours. Such delay in his treatment resulted in the deterioration of his condition. It has also come in the evidence of Dr.Ramesh 15 Badve (PW.18) that in the midnight of 19.3.2003, Jagannath, father of the deceased, willfully had taken deceased from Betul hospital to another hospital for treatment. The deceased died on 27.3.2003 after ten days. Injured Jagannath clearly stated that there was no enmity with the appellants. There is no evidence that they had preplanned with intention to kill the deceased, but they beat deceased by lathis. Though, it is true that the appellants gave the blows on the vital part of the deceased because of which he became unconscious. The appellants also had knowledge that their lathis' blows were dangerous and might cause death or such bodily injuries which were likely to cause death.
28. Having given our anxious consideration to the nature of incident and the cause of death of Khemraj, we find it difficult to hold that the intention of appellants was to cause his death or to cause such injuries, which were sufficient in the ordinary course of nature to cause death. The appellants can, however, be attributed with a knowledge that they were likely to cause his death because they caught his legs and hands and beat Khemraj by lathis.
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29. Considering all the facts and circumstances of the case, we feel that the commission of offence attributed to the appellants/accused would come under Section 304 Part II of IPC. Therefore, we accordingly set aside the conviction of appellants under Section 302/34 of Indian Penal Code and sentence of imprisonment for life awarded thereunder. Instead, they are now convicted under Section 304 Part II of Indian Penal Code and sentenced to rigorous imprisonment for eight years under Section 304 Part II of Indian Penal Code. The appellants are presently in jail and are reported to have undergone the sentence of rigorous imprisonment for more than eight years. We, therefore, direct that the appellants be set at liberty forthwith unless wanted in any other case.
30. In the result, the appeal is partly allowed to the extent indicated above.
(Rakesh Saksena) (Smt.Vimla Jain)
Judge Judge
amit
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