Madhya Pradesh High Court
Devisingh And Anr. vs The State Of Madhya Pradesh on 15 June, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
Criminal Appeal No.249 of 2010 1
IN THE HIGH COURT OF MADHYA PRADESH AT
INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
ON THE 15th OF JUNE, 2023
CRIMINAL APPEAL No. 249 of 2010
BETWEEN:-
DEVISINGH AND ANR. S/O RAMESH, AGED ABOUT 22 YEARS,
1. OCCUPATION: LABOUR GRAM RUPAREL THANA PANCHOR DISTT.
RAJGARH (MADHYA PRADESH)
GOPAL S/O RAMESH, AGED ABOUT 19 YEARS, GRAM RUPAREL,
2.
THANA PANCHORE DISTRICT RAJGARH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI MUKESH SINJONIA, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH GOVT. THROUGH POLICE STATION
PANCHOR DISTT. RAJGARH (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT RAVAL, GOVERNMENT ADVOCATE)
--------------------------------------------------------------------------------------
This appeal coming on for final hearing this day, JUSTICE
VIVEK RUSIA passed the following:
JUDGMENT
The appellant has filed the present Criminal Appeal under Section 374 of the Code of Criminal Procedure, 1973 against the Criminal Appeal No.249 of 2010 2 judgment of conviction and sentence dated 24.12.2009 passed by the Additional Sessions Judge, Narsinghgrah, District - Rajgarh in Sessions Trial No.168/2009, whereby they have been convicted for the offences punishable under Sections 302/34 & 323/34 of the Indian Penal Code and sentenced to undergo Life Imprisonment along with fine of Rs.1,000/- each and one year's rigorous imprisonment along with fine of Rs.500/- each respectively. With default clause to further undergo 01 years' & 02 months' additional imprisonment each respectively.
02. During the pendency of this appeal, appellant No.1 - Devi Singh S/o Ramesh completed the jail sentence and withdrew the appeal on 23.03.2023.
The prosecution story
03. On 05.03.2009 near about 7:00 pm, Devi Singh along with his brothers came to the house of Balram and told him that his mobile has been stolen and all the villagers are gathering in temples, therefore, he should also go there. Moolchand i.e. father of Balram replied that he is an aged person and does not know how to operate the mobile so why he would steal the mobile ? Due to this, all three brothers started abusing his father with filthy language. Thereafter, Krishna Bai and her younger son Toofan Singh came there. When his father objected, Devi Singh gave a blow by stick on the head of his father with the intention to kill him. Ramnarayan also gave a blow by means of a stick on the head of his father. When Balram tried to save his father, Gopal gave a blow by means of Farsi on the head and Toofan Singh gave a blow by means of a stick on the waist. Krishna Criminal Appeal No.249 of 2010 3 Bai pelted a stone which hit on his back. Narayan Singh and Devi Singh intervened in the matter and narrated the entire incident to the Sarpanch. Balram and his father were taken to the police station to lodge a report. Deceased - Moolchand was taken to Primary Health Centre, Pachore from where he was referred to Hamidiya Hospital, Bhopal, where he succumbed to his injuries while taking the treatment. The postmortem was carried out by Dr. Kelu Girwal (P.W-
15). Balram also sustained several injuries.
04. An F.I.R. was registered against Devi Singh, Gopal, Ramnarayan, Toofan Singh and Krishna Bai under Section 307/34 of the IPC at the instance of Balram at Police Station - Pachore. Out of five accused persons, Ramnarayan and Toofan Singh were minors, therefore, a separate charge-sheet was filed before the Juvenile Court. Safina Form (Ex-P/2) was drawn. Naksha Panchayatnama (Ex-P/3) and spot map (Ex-P/4) were prepared. Statements of witnesses were recorded and postmortem report (Ex-P/7) was prepared by Dr. Kelu Girwal. According to doctor, the death of Moolchand was due to cardiac respiratory failure as a result of head injuries and its complications. The injuries were caused by hard, blunt and heavy object and death was homicidal in nature. The accused persons were arrested and from the disclosure of Gopal, a stick was recovered height 4 feet 3 inch. At the instance of Devi Singh also a stick height 5 feet 5 inch was recovered. The MLC report of Balram is Ex-P/13. After completing the investigation, charge-sheet was filed against Devi Singh, Gopal & Krishna Bai. All the accused denied the charges and pleaded for trial.
Criminal Appeal No.249 of 2010 405. The prosecution examined 15 witnesses and exhibited 26 documents as Ex-P/1 to P/21. After appreciating the evidence came on record, learned Additional Sessions Judge has held that the death was homicidal. On a petty issue, dispute suddenly cropped up between the appellants and deceased. There was no previous enmity between them. The accused persons formed the motive immediately on the spot and committed murder of the deceased. The trial Court has also held that Balram did not sustain life threatening injuries. Vide judgment dated 24.12.2009, the learned Additional Sessions Judge acquitted Krishna Bai from all charges and convicted Devi Singh and Gopal for the aforementioned offences. Hence, the present criminal appeal is before this Court.
06. We have learned counsel for the parties at length and perused the record.
07. So far as appellant No.1 - Devi Singh is concerned, he had already withdrawn the appeal, therefore, the findings recorded against him are not liable to be examined in this appeal. So far as appellant No.2 - Gopal is concerned, Balram (P.W-1) deposed in the Court that Gopal came along with Devi Singh and Ramnarayan to his house and started abusing his father that his mobile has been stolen and told his father to go to the temple. When his father denied it, five accused persons started abusing him with filthy language. Devi Singh and Ramnarayan gave blows by means of stick on the head of his father, thereafter, Krishna Bai and Gopal joined them. When Balram tried to save his father, Gopal assaulted him by means of farsi. He has further deposed that his father was assaulted by Krishna Bai by Criminal Appeal No.249 of 2010 5 means of a stone and Toofan Singh by means of a stick. There is a specific allegation against Gopal about assaulting Balram by means of farsi, however, there is no recovery of farsi from Gopal. From Gopal, only a stick was recovered vide seizure memo Ex-P/11 which was sent to Forensic Science Laboratory as Article - D in which, no human blood was found. Hence, Balram is entitled for benefit of doubt.
08. Narayan Singh (P.W-2) and Devi Singh (P.W-3) also stated that Gopal assaulted Balram by means of farsi. They did not depose that Gopal assaulted the deceased by means of a stick.
09. As per the medical report and statement of Dr. Kelu Girwal, only one injury was found on the head and one fracture on left side of the skull in the parietal region and second fracture on the occipital region. The deceased died due to head injuries and its complications. As per the evidence, head injuries were caused by Devi Singh and Ramnarayan for which, Devi Singh has rightly convicted under Section 302 of the IPC. Gopal caused the injuries to Balram for which he has been convicted under Section 323 of the IPC.
10. The appellants have been convicted under Section 302 with the aid of Section 34 of the IPC. The trial Court has held that there was no previous enmity between them and the dispute arose all of a sudden. The deceased only refused to go to the temple and Devi Singh became annoyed and gave a blow on the head by means of stick. Gopal is entitled for benefit of the doubt as there is an allegation of causing injuries by means of farsi, but there is a recovery of stick from him with no blood on it. He said to have Criminal Appeal No.249 of 2010 6 assaulted Balram (P.W-1). He had no intention to kill the deceased and Balram. So far as the applicability of Section 34 is concerned, it is a settled law that there has to be a prior meeting of mind between all the accused to form an intention to commit a crime. There was no prior meeting between appellants to form a common intention, therefore, the appellant - Gopal has wrongly been convicted under Section 302 with the aid of Section 34 of the IPC.
11. Hence, the conviction of appellant No.2 - Gopal under Section 302/34 and 323/34 vide the judgment of conviction and sentence dated 24.12.2009 passed by the Additional Sessions Judge in Sessions Trial No.168/2009 is hereby quashed. Gopal be released from jail forthwith if not required in any other crime.
Criminal Appeal stands allowed.
Record of the trial Court be sent back along with copy of this judgment.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Ravi
Digitally signed by RAVI PRAKASH
Date: 2023.06.20 18:31:32 +05'30'