Madhya Pradesh High Court
Dwarkaprasad, Central Jail vs State Of M.P. on 17 February, 1987
Equivalent citations: 1987CRILJ1688
JUDGMENT K.L. Shrivastava, J.
1. This appeal is directed against the judgment dt. 6-12-1983 passed by the IVth Additional Sessions Judge, Indore in Sessions Trial No. 107 of 1983 convicting the appellant under Section 304, Part I of the Penal Code and sentencing him td undergo rigorous imprisonment for 10 years.
2. According to the prosecution story in Feb., 1983 the appellant was an inmate in the C. I. Jail, Indore undergoing sentence of life imprisonment for the offence under Section 302 of the I.P.C. The deceased Lotan was also undergoing sentence there and so was Hubbilal (P. W. 5). There was some altercation between the appellant and the deceased, on 20-2-1983. Thereupon the appellant had threatened him. On 21-2-1983 at about 7.00 a.m. the appellant dealt fire-wood blow on the head of Lotan. Hubbilal (P.W. 5) had intervened and in that process had sustained injury on his right hand at the hands of the appellant.
3. Dr. Kailash Lakhotiya (P.W. 20) had examined Lotan at 8.30 a.m. on 21-2-83 and had found that he was unconscious. He also found a contused lacerated wound 4" X 1/2" bone deep on the right parietaL region,
4. Before 10\30 p.m. on 21-2-83, Lotart succumbed td the head injury. Dr. R, S. Chakravarti (P.W. 21) who conducted the post-mortem found that the skull was fractured rind brain was damaged. According to him the head injury was sufficient in the ordinary course of nature to cause death.
5. The appellant was prosecuted for the offence under Section 302 of the I.P.C. At the conclusion of the trial the learned trial Judge convicted and sentenced the appellant as already stated.
6. The defence of the appellant in the trial Court was one of denial. The contention of the learned Counsel for the appellant is that the conviction and sentence passed against the appellant deserve to be set aside.
7. The learned Counsel for the State contends that the impugned judgment is on firm foundation and no interference is called for.
8. The point for consideration is whether the appeal deserves to be allowed.
9. It has not been controverted that Lotan died a homicidal death; The material on record amply proves such death.
10 Now as to the connection of the appellant with the crime in question. The testimony of Hubbilal (P.W. 5) is that the appellant is the author of the fatal injury caused to the deceased Lotan. The same finds ample corroboration in the evidence of other witnesses.
11. On a careful consideration of the material on record I have no hasitation in holding that the conclusion reached by the learned lower Court that the appellant is the author of the crime in question is on firm foundation.
12. The next contention of the learned Counsel for the appellant is that the case is one of solitary wound caused by a piece of fire-wood and the appellant be ascribed the requisite mens rea for the crime under Part I of Section 304 of the I.P.C.
13. As to the intention and knowledge in relation to the offence of murder punishable under Section 302, I.P.C. and the offence of culpable homicide not amounting to murder punishable under Section 304 ibid, the decision in Bhur Singh v. State of M. P., 1985 Cur Cri J 184 (Madh Pra) is pertinent. Here we are concerned only with the question as to whether the culpable homicide not amounting to murder falls under the 1st or the IInd Part of Section 304 of the I.P.C, ibid intention to cause such bodily injury as is likely to cause death is necessary. Part II of Section 304 of the I.P.C. speaks of, knowledge as distinguished from intention.
14. According to the evidence of the autopsy surgeon, the head injury caused to the victim was, no doubt, sufficient in the ordinary course of nature to cause death but on the material on record it would be hazardous to hold that the appellant had the mens rea for the offence covered under Part I of Section 304 ibid. However, in dealing the fatal blow on the head with such force as to result in fracture, the appellant can certainly be ascribed the knowledge that death was likely to be caused thereby. In this connection the decisions in Ram Prasad v. State of M. P. 1985 Cur Cri J (Note) 58 Page No. 117 (Mad Pra) and Harisingh v. State of M, P., 1985 Cur Cri J (Note) 170 Page No. 366 (Madh Pra) may usefully be perused.
15. As a result of the foregoing discussion. I am of the view that the appellant's guilt falls within the ambit of Part II of Section 304 of the I.P.C.
16. This brings us to the question of sentence. We have no record that the appellant had been sent to Dr. V. Dhodhapkar (P.W. 38) in Mental Hospital, Indore and had been sent back on 14-12-1981 with the remark that he was a normal person. It is also on record that he was a T.B. patient.
17. Punishment has to be such as suits the crime as well as the criminal. On a careful consideration I am of the view that a sentence of 5 years' rigorous imprisonment will amply meet the ends of justice in this case.
18. In the result, the appeal is partly allowed. The appellant's conviction under Section 304, Part I of the I.P.C. and the sentence passed thereunder are set aside. Instead he is convicted of the offence under Section 304, Part II ibid and is sentenced to rigorous imprisonment for 5 years.
19. On the date of conviction by the trial Court the appellant was admittedly undergoing imprisonment for life. In view of the provision embodied in Sub-section (2) of Section 427 of the Cr. P.C. 1973, the subsequent substantive sentence of imprisonment is statutorily directed to run concurrently with the previous sentence for life to which the prisoner stands subjected. Thus the sentence imposed on the appellant in this appeal for the offence under Section 304, Part II shall run concurrently with the sentence of life imprisonment to which he had been previously subjected.