Madhya Pradesh High Court
Dita vs The State Of Madhya Pradesh on 2 February, 2019
Author: Virender Singh
Bench: Virender Singh
1 CRA No.796 of 2011
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
D.B.: Hon'ble Shri S. C. Sharma and
Hon'ble Shri Virender Singh JJ.
Criminal Appeal No.796 of 2011
Dita S/o Juga Barela
Versus
State of Madhya Pradesh
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Ms. Anuradha Deshpande, learned Counsel for
the appellant.
Shri Vikas Yadav, learned Public Prosecutor for
the respondent/State.
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JUDGMENT
(Delivered on 2/ 02/2019) Per Virender Singh, J.
1. The appellant has preferred this appeal against judgment and order dated 22nd March, 2011 passed in Sessions Trial No.58 of 2010 passed by First Additional Sessions Judge, Badwani whereby the learned Trial Court has acquitted the appellant from the charge under Section 294 of IPC but has convicted him under Section 302 of IPC and awarded life imprisonment with fine of Rs.5,000/- and in default further to undergo rigorous imprisonment of six months.
2. In short, the prosecution case is that on 28.3.2010 2 CRA No.796 of 2011 the work of road construction was in progress. Several labourer, namely, complainant--Vaniya his brother Dunga, nephew Billa and co-villagers Rupsingh, Chandarsingh, Maniya, Sursingh and some other persons were working there. Dunga was packing metal, Dita Barela was filling soil/murram. He scolded Dunga as to why he is not working fast for which Dunga replied furiously and started abusing. They both indulged in some altercation. Suddenly Dita picked up a boulder and threw toward Dunga, which hit on his head and he fell down on the ground. Dita then picked up a spade lying there and stating that he will kill him inflicted the same twice on his head. Dunga fell unconscious. Vaniya, Rupsingh, Chandarsingh, Maniya, Sursingh, Billa and some other persons present there, intervened and rescued him and took him to the hospital but on the way, he died. Vaniya reported the matter to the police. Crime No.49 of 2010 under Sections 302 and 294 of IPC was registered at Police Station--Patti, District--Badwani (Ex. P/1). The Police called the witnesses vide Ex.P/2 and prepared lash panchanama Ex.P/3 and sent the body for postmortem with requisition and obtained report Ex. P/15 and P/20. Doctor opined that the cause of death was cardio respiratory failure due to extra-cerebral hemorrhage or head injury. The police visited the spot, 3 CRA No.796 of 2011 prepared spot map Ex. P/4 and Panchanama Ex.P/10. The police also obtained attendance record Ex. P/13 to show the presence of the deceased and the accused, recovered a spade on pointing of the accused and seized the same and also seized blood stained and plain soil, sent all the articles for chemical analysis to the FSL and filed charge-sheet after completing the investigation.
3. The accused was charged, tried and convicted as stated above.
4. The appellant has preferred this appeal on several grounds but during the course of argument, learned Counsel representing him has submitted that she does not want to press the appeal on merits. Her only contention is that both the deceased and the appellant are labourer. They belong to the same village. There was no previous enmity. The incident happened all of sudden on a petty issue as the deceased asked the accused to work fast, he got annoyed. As per allegation the deceased also abused him. The appellant objectee for the same. He asked him not to abuse him, but when he didn't stop, then suddenly he picked up a stone laying there and threw it towards the deceased which unfortunately hit on his head. Nothing is there to show that the appellant targeted head of the deceased. In that fit of rage, he picked up a spade and inflicted 4 CRA No.796 of 2011 injuries which proved fatal but there was no intention, preparation or premeditation to kill the deceased. They all belong to the same village and the same caste. The appellant is very poor to the extent that he could not afford a Counsel even. His family is fully dependent on him. They are living in penury, as their sole bread winner is in jail since last almost 10 years and now it is very difficult for them to survive. The appellant has no criminal record. No criminal case has ever been registered against him. He didn't took advantage of the situation. No brutality is shown in the crime. It is a simple case. Both the parties belongs to the tribes. Incident was started by the deceased himself as he not only scolded the appellant for the work but also started abusing him in the name of his wife, therefore, he got annoyed. He asked him not to abuse but when he didn't stop and only then he picked up a stone and in that fit of rage, the offence was committed, therefore, the case of the appellant falls within the purview of Section 304-II and not in Section 302 of IPC. He is in jail since 30.3.2010 and, therefore, his sentence be reduced to the period already undergone.
5. Though, the learned Public Prosecutor has opposed the prayer but has not controverted the facts stated by the learned Counsel for the appellant.
6. Facts stated by the learned Counsel for the 5 CRA No.796 of 2011 appellant are well supported by the evidence produced by the prosecution and the documents available on the file that the incident happened all of sudden in a fit of rage. Both the parties belong to poor families and to the same same village. There is no evidence of any intention, preparation or premeditation. No deadly weapon is used in the incident. The appellant has no criminal antecedent.
7. Therefore, having regard to the facts and circumstances of the case and the law laid down by Hon'ble the Supreme Court in the case of Madhavan and Ors. Vs. State of Tamil Nadu reported in AIR 2017 SC 3847; Sikandar Ali Vs. State of Maharashtra reported in AIR 2017 SC 2614; Arjun and Anr. Vs. State of Chhattisgarh reported in AIR 2017 SC 1150; Elavarasan Vs. State and Mahesh Vs. State of M.P. reported in (1996) 10 SCC 668, the case of the appellant falls within the four corners of the ambit of the offence punishable under Section 304-II of the IPC. For these reasons, the appeal is partly allowed. The judgment passed and sentence awarded by the learned trial Court are set aside to the extent that we hold the appellant guilty for committing the offence under Section 304 part II of IPC instead of the offence under Section 302 of IPC and keeping in view the attaining 6 CRA No.796 of 2011 facts and circumstances of the case award him 10 years rigorous imprisonment and fine of Rs. 10,000/-and in default he would suffer 1 (one) year RI.
8. Order of the trial Court regarding disposal of case property stands confirmed.
(S. C. SHARMA) (VIRENDER SINGH)
JUDGE JUDGE
pp
Digitally signed by Pankaj
Pandey
Date: 2019.02.05 10:09:22
+05'30'