Madhya Pradesh High Court
Ganesh Prasad vs The State Of Madhya Pradesh on 12 November, 2021
Author: Satyendra Kumar Singh
Bench: Satyendra Kumar Singh
IN THE HIGH COURT OF JUDICATURE FOR MADHYA
PRADESH AT JABALPUR
S.B : HON.SHRI JUSTICE SATYENDRA KUMAR SINGH
Cr.A. NO.2591/2015
Ganesh Prasad
Vs.
State of Madhya Pradesh.
Shri Paritosh Trivedi, learned counsel for the appellant.
Shri Anil Upadhyay, learned Panel Lawyer for the
respondent/State.
JUDGMENT
(12/11/2021) The appellant has preferred this appeal under Section 374 (2) of the Code of Criminal Procedure, 1973 (2 of 1974) against the judgment dated 17/08/2015 passed in Sessions Trial No.06/2014 by the Court of Sessions Judge, Dindori whereby the appellant has been convicted under Section 294 of the Indian Penal Code and sentenced to deposit fine of Rs.1,000/-, in default of payment of fine rigorous imprisonment for ten days and under Section 304 Part-II of IPC and sentenced to undergo rigorous imprisonment for 10 years with fine of Rs.1,00,000/-, in default of payment of fine, additional rigorous imprisonment for two years.
2. Prosecution story, in brief, is that on 04/11/2013 at 4.50 p.m. deceased-Tulsiram made a report to Police Station, 2 Karanjiya, Distt. Dindori to the effect that on the said date at about 2.00 p.m. when he went to see his paddy field, he saw that cattle of appellant are grazing the paddy and when he was driving the cattle out from the field, at that juncture, appellant came there, abused him in filthy languages and on restraining the same, appellant gave blows of stick (Danda) to him. On hearing hue and cry of the appellant, Indradas and Phagua came to rescue him, then accused fled awat from the spot by giving threat to kill him. During Maarpeet he received injuries on his head and left hand.
3. On the report of deceased-Tulsidas, Police registered Crime No.101/2013 for the offences punishable under Sections 294, 323, 506 of IPC and sent him for medical examination. The matter was taken into investigation. During investigation, Police prepared spot map, recorded the statement of witnesses, victim-Tulsiram was referred to District Hospital, Dindori from Karanjiya hospital and from where he was referred to Medical College, Jabalpur but due to financial problem his family was not in a position to shift him at Jabalpur, therefore, he was kept in District Hospital, Dindori for treatment where on 19/11/2013 he died. On receiving the information about the death of the deceased- Tulsiram, added Section 302 of IPC by registering Merg No.37/2013. Spot map was also prepared by the Patwari and stick (Lathi) was seized at the instance of appellant.
4. After completion of investigation, challan was filed before the Chief Judicial Magistrate, Dindori who vide order dated 29/01/2014 committed the same to the Court of Session.
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5. Learned trial Court after considering the material, prima facie, available on record, framed charges under Sections 204, 506-B, 302 of the Indian Penal Code against the appellant. The appellant abjured his guilt and prayed for trial. In his statement recorded under Section 313 of Cr.P.C, the appellant pleaded his false implication in the matter as there is land dispute between him and deceased, therefore, he has been falsely implicated. The appellant also denied seizure of lathi from his possession. In support of his defence, the appellant did not examine any witness.
6. Learned trial Court, after appreciating the oral as well as documentary evidence available on record, recorded the finding that prosecution proved the case beyond reasonable doubt against the appellant and convicted him under Sections 294, 304 Part-II of IPC, therefore, vide impugned judgment dated 17/08/2015 and sentenced him as mentioned in para-1 of this judgment, however, acquitted him under Section 506 Part-II of IPC. Being aggrieved with the said judgment of conviction and order of sentence, the appellant has preferred this appeal for setting aside the impugned judgment and discharging him from the charges.
7. Learned counsel for the appellant submits that learned trial Court has committed a legal error while appreciating the evidence available on record. Learned trial Court has totally ignored to consider the fact that incident was of 04/11/2013 and statement of the deceased under Section 161 of Cr.P.C. was recorded on 16/11/2013 i.e. after 13 days from the 4 date of incident without any reasonable cause. It is also submitted that trial Court has erred in relying upon the testimony of Indradas (PW-1) as there are so many contradiction and omissions in his testimony, therefore, his evidence ought to have been disbelieved, he is not an eye witness. Trial Court has also failed to appreciate that so many important prosecution witnesses have not supported the case of the prosecution, they have turned hostile. On going through the statement of Sanjay (PW-2), it is apparent that if the prosecution version is accepted it its entirity then the offence is made out only under Section 323 of IPC against the appellant. Deceased-Tulsiram died in absence of proper medical treatment. Learned trial Court has also failed to consider that seizure witnesses Sultan Khan (PW-4) and Rajkumar (PW-13) both have turned hostile and not supported the prosecution case and denied the seizure of lathi from the possession of the appellant.
8. Learned counsel for the appellant also submits that treating doctor i.e. S.S. Udde (PW-5), Dr. Umendra Singh (PW-6) and Dr. Rakesh Kumar Tekam (PW-7) have not deposed that injury caused by the appellant was sufficient for death in ordinary course of nature.. Learned trial Court, itself, has found that due to negligence of the son of the deceased, he died in absence of proper medical facility, therefore, no offence under Section 304 Part-II of IPC is made out against the appellant. Looking to the aforesaid material and evidence available on record, only offence under Section 323 of IPC is made out as there is single blow of lathi over head of the deceased, therefore, it cannot be said that the act was done with the 5 knowledge that it is likely to cause death. Thus, it is prayed that by allowing this appeal, the appellant may be discharged from all the charges.
9. Per-contra, learned counsel for the respondent/State while supporting the impugned judgment of conviction and order of sentence, submits that the judgment passed by the trial Court is based on proper appreciation of evidence and material available on record as the same is well reasoned and established the guilt of the appellant beyond reasonable doubt. It is also submitted by him that deceased succumbed due to injuries caused by the appellant and the allegations alleged against the appellant are of serious in nature, therefore, while affirming the impugned judgment of conviction and order of sentence, the appeal filed by the appellant may be dismissed.
10. Having considered the rival submissions of the parties, after perusing the record of the trial Court, it is apparent that this case is mainly based on the statements of Indradas (PW-1), Sanjay (PW-2), Phagu Singh (PW-8), Arun Patel (PW-12) Head Constable, who registered FIR (Ex.P.16) at P.S. Karanjiya District Dindori.
11. From the statements of the prosecution witnesses Indradas (PW-1), Sanjay (PW-2), Phagu Singh (PW-8) recorded during trial and also suggestion given on behalf of the appellant to them during their cross- examination, it is not disputed that there was a land dispute between the appellant and deceased Tulsiram. During cross-examination of Indradas specific suggestion has been given on behalf of the appellant that at the 6 time of incident there was altercation between the appellant and deceased Tulsiram and both of them assaulted to each other by stick (Lathi), therefore there is no reason to disbelieve or doubt on the statement of Indradas (PW-1) that at the time of incident appellant abused and assaulted on the head and on the left hand of the deceased by stick (Lathi) and caused injuries to him. This evidence find support from the statement of Phagu (PW-8), who stated that at the time of incident quarrel was going on between the appellant and the deceased Tulsiram. This statement of both the witnesses remains unchallenged.
12. Sanjay (PW-2) deposed that after incident he took the deceased P.S.Karanjiya where deceased himself lodged the FIR Ex.P.16. Head Constable Arun Patel (PW.12) deposed that he lodged the FIR on 4.11.2013 (Ex.P.16) on the report of the deceased and nothing was added or omitted by him on his own. Statement of both the witnesses have been challenged on behalf of the appellant and it has been suggested that at the time of lodging of the FIR the deceased was not fit and able to lodge the said FIR (Ex.P.16).
13. Appellant in his appeal memo and written arguments specifically took the defence that injuries found on the body of the deceased were of simple in nature, therefore, merely on the basis of statement of Sanjay (PW-2), it cannot be inferred that the deceased was in unconscious state after the incident. It is quite possible that Sanjay (PW-2) being son of the deceased made such type of statement merely to show grievousness of injury of the deceased. Head Constable Arun Patel (PW-12) specifically denied that the deceased was not fit and able to lodged the FIR (Ex.P.16). 7 There is nothing in his statement on the basis of which his above statement can be doubted or disbelieved. Therefore, it is proved that the deceased Tulsiram himself lodged the FIR (Ex.P.16), which after his death find status of dying declaration.
14. In the FIR (Ex.P.16), it has specifically been mentioned that on 14.4.2013 at about 2.00 pm. appellant abused and assaulted the deceased on the left side of his head and left hand with stick (Lathi) near his field, which is said to be the disputed land. FIR (Ex.P.16) being dying declaration of the deceased is an important piece of evidence and fully supports the statement of Indradas (PW-1). Therefore, on the basis of the evidence of Indradas (PW-1), which find support from the statement of Phaggu (PW-8) and dying declaration (Ex.P.16) of the deceased, it is proved beyond reasonable doubt that on the date of the incident at about 2.00 pm. appellant assaulted the deceased on left side of his head and also on left hand by stick (Lathi) and caused injury to him, as mentioned in MLC report (Ex.P.8) and postmortem report (Ex.P.9).
15. So far argument with regard to nature of injury and intention or knowledge of the appellant to cause the same is concerned, although Dr.S.S. Udde (PW-5) has stated and opined in his report (Ex.P.8) that nature of injury found on the head of the deceased was simple, but Dr. Umendra Singh (PW-6) has stated and opined in his postmortem report (Ex.P.9) that during postmortem of the dead body of the deceased he found haematoma measuring 4"x3" in his head. He specifically stated and opined that deceased was died due to failure of cardio respiratory system because of above haematoma in his head. Therefore, it cannot be 8 said that the injuries found on the body of the deceased were simple in nature.
16. As the above injury was found on the vital part (head) of the deceased and same was caused by stick (Lathi), therefore, it can be very well inferred that appellant knew about the fact that injury caused by him on the vital part of the deceased by stick will cause his death.
16. As the prosecution has failed to prove any premeditation on the part of the appellant and quarrel admittedly occurred all of sudden on a heat of passion therefore, learned trial Court has not committed any error in appreciating the oral as well as documentary evidence available on record and holding appellant guilty for the offence punishable under Section 304-II of IPC, as the act of the appellant comes under Exception 4 of Section 300 of IPC.
17. In view of aforesaid discussion, I do not find any perversity, illegality, irregularity or anything contrary to the propriety of law in appreciation of evidence by the trial Court and holding appellant guilty for the aforesaid offences. Therefore, the finding of the trial Court with regard to conviction of the appellant under Sections 294 and 304-II of IPC is hereby affirmed.
18. So far sentence awarded by the trial Court under Section 304-II of IPC RI for ten years is concerned, it requires some modification, as the incident was occurred all of sudden, in heat of passion and there is no premeditation and appellant has no criminal antecedents except the present case, as per the evidence available on record. 9
18. The appellant was in jail during trial from 23.01.2014 to 14.3.2014 i.e. for a period of one month and 22 days and he is suffering jail sentence since the date of impugned judgment i.e. form 17.8.2015 till today (12.11.2021) i.e. for a period of six years, two months and twenty five days. Thus, the appellant has already suffered actual total jail sentence of Six years, four month and seventeen days, which is sufficient sentence for him, in the interest of justice.
19. Accordingly, this appeal is allowed in part and judgment of conviction passed by the trial Court is hereby affirmed. However, the sentence awarded under Section 304-II R.I. for ten years is hereby modified up to the extent for which he has already undergone i.e. Six years, four month and seventeen days.
20. So far as the amount of fine Rs.1,00,000/- awarded by the trial Court is concerned, the same is hereby affirmed, however in default of payment of fine amount, the appellant shall suffer further RI for one year. It is made clear that subject to depositing the fine amount appellant shall be released forthwith, if his presence is not required in any other case.
(Satyendra Kumar Singh) Judge kkc KRISHAN KUMAR CHOUKSEY 2021.11.12 16:48:06 +05'30'