Madhya Pradesh High Court
Pintu @ Indrapal Singh vs The State Of Madhya Pradesh on 14 December, 2017
Author: J.P. Gupta
Bench: J.P.Gupta
1
Cr.Appeal.No.2011/2006
HIGH COURT OF MADHYA PRADESH,
PRINCIPAL SEAT AT JABALPUR
(DB : HON'BLE SHRI JUSTICE J.K.MAHESHWARI &
HON'BLE SHRI JUSTICE J.P.GUPTA)
Criminal Appeal No.2011/2006
Pintu @ Indrapal Singh
Vs.
State of Madhya Pradesh
Shri Vikalp Soni, Advocate for the appellant-accused.
Smt.M.P.S.Chhukal, P.L. for the respondent-State.
Whether approved for reporting : (Yes / No).
JUDGMENT
(Delivered on __th day of December, 2017) Per J.P. Gupta, J :
1. The appellant has preferred the present appeal being aggrieved by the judgment dated 3.10.2006 passed by First Addl. Sessions Judge, Tikamgarh, in S.T. No.48/2002, whereby the appellant has been convicted for the offence under Sections 302 and 324 of the I.P.C. and sentenced to undergo life imprisonment along with fine of Rs.500/- R.I., in default of fine R.I. for 2 months, and R.I. for three years and R.I. for 3 years respectively. Both the sentences to run concurrently.
2. According to the prosecution story, the appellant and the deceased were neighbours. Their houses were situated in front of each other. It is alleged that on 13.1.2002 at about 11 AM appellant and his father co-accused Prabhudayal and his brother Awadhesh Vanshkar were quarreling with Bablu in front of their house and also abusing deceased son Rakesh, PW6. At that time, deceased Ramdayal, father of Rakesh, PW6, came out of his house and asked 2 Cr.Appeal.No.2011/2006 not to abuse his son. Then accused persons brought sword from their house and while threatening to dire consequences assaulted deceased Ramdayal and caused several injuries on his person due to which he fell down and became unconscious. At the time of incident Geetabai, PW1, daughter of the deceased, was also present and on noticing the incident Rajkumar, PW7, (other son of deceased Ramdayal), and his wife Ramkunwaribai, PW3, rushed towards the spot from their house to save the deceased. However, accused persons also assaulted them and caused injuries. On gathering of people the accused persons flee away. Deceased Ramdayal was taken to hospital. The incident was witnessed by Laxman, PW2 and Siyaram, PW5.
3. Information of the incident was given at Police Station Niwari by Geeta, PW1, on which FIR at Crime no.13/2002 was registered against the accused persons for the offence under Sections 323, 324, 294, 506 and 307/34 of the I.P.C. During investigation the injured were medically examined at C.H.C. Niwari. On 14.1.2002 the deceased was declared dead. The dead body was sent for examination to the Govt. Hospital Jhansi, where examination was done by Dr.Pramod Kumar, PW12, who prepared the post mortem report, Ex.P/17, and found that death of the deceased was homicidal in nature. After death of the deceased offence under section 302 I.P.C. was added. The police summoned the witnesses. During investigation, statements of witnesses were recorded. Spot map, Ex.P/2 was prepared. Blood stained and simple soil were seized from the spot. The accused were arrested. After completion of investigation, the police filed a charge sheet against the appellant/ accused and his father Prabhudayal for offence under sections 323, 324, 506, 294, 307/34 and 302 of the I.P.C. before the J.M.F.C. Niwari, District Tikamgarh and against Awadhesh before the Juvenile court being juvenile. On committal, the case was received 3 Cr.Appeal.No.2011/2006 by Sessions Judge, Tikamgarh and case was tried by I Additional Sessions Judge, Tikamgarh.
4. The learned trial Court framed charge for the offence under Sections 294, 324 and 302 read with section 34 of the I.P.C. against the appellant and co-accused Prabhudayal. However, the appellant / accused abjured the guilt and pleaded for trial. Their defence was that they were innocent and the quarrel had taken place in the complainant's house between the complainant party and Bablu and the appellants have been falsely implicated.
5. Learned trial court, after the trial of the case, acquitted co-
accused Prabhudayal from the aforesaid charges, however, found the appellant to be involved in the incident and assaulted the deceased and found the appellant guilty of the offence under Sections 324 and 302 of the IPC and sentenced him, as mentioned above.
6. Being aggrieved by the aforesaid judgment of conviction and order of sentence, appellant has filed this appeal on the ground that the finding of the learned trial court is contrary to law. The testimonies of witnesses are not reliable as they are full of contradiction and omissions. The learned trial court mainly relied upon the evidence of Geeta, PW1 and statements of Autopsy Surgeon Dr.Pramod Kumar, PW12, Dr.Suresh Sharma, PW9, who conducted the MLC and also medically examined injured Ramkunwarbai, PW3, Rakesh, PW6, and Rajkumar, PW7. Learned counsel for the appellant in view of the statements of the aforesaid witnesses have not challenged the conviction of the appellant and emphasized that the incident had taken place suddenly without premeditation and in a heat of passion appellant assaulted the deceased and he has also not taken any advantage or acted in a cruel or unusual manner, therefore, exception 4 of section 300 of the I.P.C. is attracted and, therefore, in place of conviction for murder of the deceased, the appellant could have been held guilty for the offence of culpable 4 Cr.Appeal.No.2011/2006 homicide not amounting to murder punishable under section 304 Part I of the I.P.C. and accordingly his sentence be modified. He has placed reliance upon the judgment of the Apex court in the case of Hari Shankar Shukla Vs. Sate of U.P., reported in AIR 2017 SC 1959. In the view of the facts and circumstances of the case, prayer is made to allow the appeal and set-aside the impugned judgment of conviction and order of sentence. It is further submitted that the appellant has already undergone more than 11 years of imprisonment, therefore, he be released by sentencing him to the period already undergone by him.
7. On the other hand, learned Panel Lawyer appearing for the respondent / State has argued in support of the judgment and stated that the finding of conviction and sentence of the learned trial court is in accordance with law. Hence, the appeal be dismissed.
8. Having considered the rival contentions of the parties and on perusal of the record, from the statements of Autopsy Surgeon Dr.Pramod Kumar, PW12, who have proved the post mortem report, Ex.P/17 and Dr.Suresh Sharma, PW9, who have proved the MLC report, Ex.P/9, proving the fact that deceased Ramdayal died on 13.1.2002 on account of three stab wounds and two incised wounds on his person caused by hard and sharp object and his lungs were ruptured and he died on account of the shock caused by excessive bleeding. Further, Dr.Suresh Sharma, PW9, has stated that Rakesh, PW6, Rajkumar, PW7 and Ramkunwarbai, PW8, were also examined by him on 13.1.2002 and on their persons incised wounds were found which were caused by hard and sharp objects and their MLC reports Ex.P/9, P/10, P/11 and P/12 respectively were prepared and all the injuries were found. The aforesaid evidence is unimpeachable and establishes the fact beyond reasonable doubt that on 13.1.2002 deceased Ramdayal died on account of injuries sustained by him, therefore, his death was homicidal and Rakesh, 5 Cr.Appeal.No.2011/2006 Rajkumar and Ramkunwaribai also received incised wounds caused by hard and sharp object.
9. Geeta, PW1, daughter of the deceased, has stated that on intervention of his father deceased Ramdayal during the quarrel between Bablu and the appellant /accused; appellant, his father and brother went inside their house and brought sword and assaulted his father Ramdayal. Appellant stabbed sword on the stomach of her father, due to which he fell down, then other co-accused Prabhudayal and Awadhesh assaulted her father and caused injuries to him. When she went ahead to save her father, accused persons also assaulted her and on hearing her hue and cry, her brothers Rajkumar and Rakesh, and mother Ramkunwarbai rushed to the spot. On seeing them appellant and other co-accused persons also assaulted them and caused injuries. Ramkunwarbai, PW3, Rakesh, PW6, and Rajkumar, PW7, have also supported the statements of Geeta, PW1, stating that they had seen the appellant and other accused persons armed with sword at the spot and the deceased lying in injured condition and they were assaulted by the appellant and other accused persons. The learned trial court had appreciated their evidence very minutely and considered that they have not witnessed as to which accused persons has caused which injury to deceased Ramdayal as when they had reached the spot they saw the deceased in injured condition and appellant/accused also flee away and Bablu also ran away to some distance. Considering the aforesaid evidence reliable, the learned trial court has arrived to the conclusion that there is nodoubt that appellant accused assaulted the deceased and caused injuries to him and other witnesses, and accused Prabhudayal has been given the benefit of doubt on the ground that main witness Geeta, PW1, has not assigned specific role of accused Prabhudayal in her examination-in-chief.
10. In view of the aforesaid discussion, in our considered opinion, the learned trial court has not committed any error in holding that 6 Cr.Appeal.No.2011/2006 the appellant has assaulted the deceased and caused deadly injury to him.
11. Now, the question which arises for consideration is as to whether the appellant can be held guilty for committing the murder of the deceased or he can be convicted for commission of culpable homicide not amounting to murder. Geeta, PW1, in her cross examination has stated that all the accused persons had assaulted the deceased with sword and had caused injuries to him. If the aforesaid statement could be read conjointly with the statement given by her in examination-in-chief, it would be evident that the appellant caused injury on the stomach of the deceased, however Autopsy Surgeon Dr.Pramod Kumar, PW12, has not stated that on account of which injury death of the deceased had taken place. He has opined that on account of the excessive bleeding due to the injuries led to the death of the deceased and there is no opinion that the injuries were sufficient to cause death in the ordinary course of nature.
12. The facts and circumstances of the case also show that the incident had taken place suddenly without premeditation and in the heat of passion and the appellant assaulted the deceased repeatedly, therefore, it cannot be said that he had taken undue advantage or acted in a cruel or unusual manner, therefore, his case would fall under exception 4 of section 300 of the I.P.C. In the circumstances, the appellant cannot be convicted for commission of murder of the deceased, hence, his conviction under section 302 of the I.P.C. cannot be upheld and instead he ought to have been convicted for commission of the offence under section 304 Part 1 of the I.P.C.
13. In view of the aforesaid discussion, the conviction of the appellant under section 302 of the I.P.C. is set aside and instead he is convicted for the offence under section 304 Part I of the I.P.C. However, his conviction under section 324 of the I.P.C. is affirmed.
7 Cr.Appeal.No.2011/200614. So far as the sentence is concerned, the appellant has remained in custody during trial from 15.1.2002 to 29.7.2002 and thereafter, from 3.10.2006 till today. Hence, for the offence under section 304 Part I I.P.C. the appellant is sentenced to suffer R.I. for ten years along with fine of Rs.500/-, in default of payment of fine, 2 months further R.I. The sentence of the appellant for the offence under section 324 I.P.C. is affirmed. Both the sentences to run concurrently, as directed by the trial court. The appellant has already suffered more than 11 years imprisonment, hence he be released forthwith, if not required in any other offence.
15. In the result, this appeal is allowed. A copy of this judgment be sent to the trial court and the jail authorities concerned for information and necessary action.
(J.K.MAHESHWARI) (J.P.GUPTA)
JUDGE JUDGE
HS
Digitally signed by
HEMANT SARAF
Date: 2017.12.18 11:44:06
+05'30'