Phoolsingh vs The State Of Madhya Pradesh on 5 February, 2018

[Cites 10, Cited by 0]

Madhya Pradesh High Court

Phoolsingh vs The State Of Madhya Pradesh on 5 February, 2018

Being aggrieved by the judgment dated 27.09.2006 passed by 2nd Additional Sessions Judge (Fast Track Court), Astha in S.T. No.144/06, this appeal has been filed by the appellant, whereby he was convicted for offence punishable under Section 302 of the IPC and sentenced for life imprisonment along with fine of Rs.1000/- with default stipulation.

2. Brief facts of the prosecution case are that on 2.8.2006 at 2 Cr. A. No.2446/2007 about 8:00 p.m. in village Bamuliya Raymal, the appellant assaulted Kripal Singh by a knife. He was lying at the spot. His father Phool Singh lodged FIR against the appellant at Police Station, Jawar District Sehore for offence punishable under Section 307 of the IPC. Kripal Singh died on the same day. Hence, the offence under Section 307 of the IPC was converted into the offence under Section 302 of the IPC. After investigation, charge sheet was filed against the appellant before the concerned Court.

3. Learned trial Court framed the charge under Section 302 of the IPC against the appellant. He abjured his guilt and pleaded innocence. The defence witnesses has also been examined by him.

4. Learned trial Court found that prosecution has successfully established that the appellant committed murder of the deceased by inflicting fatal injuries on his vital part of his body by knife. Due to which, Kripal Singh died. Therefore, the appellant was convicted and sentenced as stated above.

5. Against the aforesaid findings, the appellant has submitted that findings of learned trial Court are contrary to law and facts. Learned trial Court has wrongly relied on the testimony of interested witnesses, which is contradictory. The prosecution story is not fully supported by evidence on record, therefore, the appellant has prayed to set aside and impugned judgment and he be acquitted from the charge levelled against him.

6. Having heard learned counsel for the parties and perused the record.

7. Learned Govt. Advocate has submitted that the trial Court has not committed any error in convicting and sentencing the appellant for 3 Cr. A. No.2446/2007 offence under Section 302 of the IPC. Therefore, it is prayed that the appellant may not be acquitted from the charge levelled against him.

8. It is not in dispute that deceased Kripal Singh aged about 28 years died on the date of incident i.e. on 2.8.2006 due to fatal injuries caused to him on his chest. Dr. K.K. Chaturvedi (PW-5) conducted autopsy of deceased Kripal Singh on 3.8.2006 at Civil Hospital, Ashta and he found following injuries on his body:-

(i) Incised wound about 1/5 cm. x 0.5 cm.

x 1 cm. at right side of chest on secondary rib,

(ii) Incised wound about 2 cm. x 0.5 cm. x 9 c.m. at right side on 5th vertebra,

(iii) Incised wound about 1 c.m. x 0.5 cm. x 1 c.m. over 8th rib,

(iv) Incised wound about 1/2 cm. x 1/4 c.m.

                  x 1/2 cm. below ribs on right side of chest,

                  (v)     Incised wound 3 cm. x 1 c.m. x 5 c.m.
                  at left knee.

As per opinion of Dr. K.K. Chaturvedi (PW-5), all the injuries were ante mortem in nature and caused by hard and sharp object. In external examination of body, he found that 2 nd, 4th, and 5th ribs were in cutting position and blood got collected below it. His right lung was ruptured. An incised wound over right chamber of chest about 1.5 cm. x 0.5 cm. Kripal Singh died due to above injuries because of excessive bleeding and comma within 6-36 hours. During cross-examination, Dr. K.K. Chaturvedi (PW-5) clearly denied that such injuries were caused to the deceased due to fall on any pointed object.

9. Prosecution examined Rajendra (PW-2) as an eye-witness. 4 Cr. A. No.2446/2007 He stated that the deceased was his brother. He saw the incident. At that time, he was present near the house of Karan Singh. He heard some hue and cry. Then, he reached on the spot. In his presence, the appellant inflicted 5 blows of knife on his brother at his chest and stomach. He tried to rescue his brother. Appellant also attempted to assault him. Therefore, he ran away towards his home and informed the whole incident to his father Phool Singh (PW-1).

10. Phool Singh (PW-1) supported the version of Rajendra (PW-2). He immediately reached the spot and saw the injuries of his son Kripal. On the spot, Ghasiram (PW-8) also witnessed the incident and informed it to the father of the deceased. Rajendra (PW-2) also narrated the name of Manohar (PW-10) as an eye-witness. Manohar supported the prosecution story. He is the real brother of the deceased. Their presence on the spot is found natural and reliable. All the witnesses duly corroborated the testimony of each other. We find no inconsistency any contradiction or material omission in their testimony.

11. Dheeraj Singh (PW-11) and Kripal Singh (PW-13, Kalyan (PW-15) and Phool Singh (PW-16) saw the injuries of the deceased after the incident. Whole prosecution evidence inspire confidence about the incident.

12. FIR was promptly lodged on the date of incident by Phool Singh (PW-1) at Police Station, Jawar. Ram Sajeevan Sharma (PW-

7), Head Constable registered the FIR as stated by Phool Singh (PW-1). Facts of the FIR are duly corroborated by the prosecution 5 Cr. A. No.2446/2007 witnesses. R.S.Sharma (PW-7) also registered Roznamcha Sanha Ex. P/13. He narrated that he received telephonic information from witness Kripal Singh who informed about the dispute between the deceased and the appellant. Kripal Singh (PW-13) supported his version. He also narrated that he saw the deceased Kripal Singh and appellant lying injured and in unconscious condition on the spot. He deposed that deceased Kripal Singh was brought to the Hospital at Ashta where doctor declared him dead. The postmortem was conducted by Dr. K.K.Chaturvedi (PW-5). All the above evidence prove that the appellant caused death of the deceased by using knife (sharp weapon.

13. S.N.Pandey (PW-21) seized the knife as per the memorandum of the appellant Ex. P/18 and as per seizure memo Ex. P/16). Aforesaid knife was also examined by Dr. K.K.Chaturvedi (PW-

5). He opined that injuries of the deceased may be caused by such knofe. S.N.Pandey (PW-21) Investigating Officer also seized shirt from the appellant (Ex. P/17) which was blood stained. Two cut marks were also found on his shirt. The statement of the witnesses were promptly recorded by Investigating Officer. We find no fault in the investigation. All the seized articles were sent to FSL, Sagar for chemical examination.

14. As per FSL report (Ex. P/25), it was confirmed that human blood was present over the shirt of the appellant (Article E) and knife (Article D), which were recovered from the appellant. Appellant failed to offer any explanation about the source of human blood stains on 6 Cr. A. No.2446/2007 his shirt and knife. This evidence also directly connect the appellant with the crime.

15. Learned counsel for the appellant urged that the case of the case of the appellant does not fall under the category of murder as defined under Section 302 of IPC. He contended that in the same incident, the appellant also sustained injuries which were suppressed by the prosecution. Therefore, he is entitled to be acquitted from the charges levelled against him.

16. In this regard, we considered the testimony of defence witnesses adduced by the appellant. Dr. A.K.Jain (DW-2) deposed that on 02.08.2006, he examined the appellant and found the following injuries :

(i) Contusion with swelling over the backside of right ear.

(ii) Abrasion over nose.

(iii) Bleeding from nose with some blood clotting.

(iv) Contusion and swelling over the back at 5 spots of size 6x2 cms.

(v) Contusion over right thigh.

(vi) Swelling over right side of head. Abrasion over right elbow.

17. Dr. A.K.Jain opined that all the injuries were caused by hard and blunt object within 6 hours. The appellant was in drowsy condition. He also opined that such injuries were not dangerous to his life.

18. Appellant himself was examined as defence witness (DW-

1). He stated that the deceased Kripal Singh came to him. Kripal was demanding money for drinking liquor. He refused to provide the 7 Cr. A. No.2446/2007 money to the deceased. Then the deceased along with his family members beat him. At that time, he was barehanded.

19. This facts is also narrated by Sidhulal (PW-14). Kripal Singh (PW-13) also corroborated the testimony of defence witness. The testimony of prosecution witness and defence witness has same evidentiary value. Therefore, it cannot be ignored. Investigating Officer also supported the defence version. S.N.Pandey (PW-21) deposed that he registered FIR in crime No. 193/2006 which was lodged by the appellant himself against the deceased and others. In paragraph 16, he deposed that witness Dheeraj informed that the appellant was also injured in the same incident. In his cross- examination, he admitted that on the date of incident, crime was registered against the deceased. At that time, appellant was also in injured and unconscious condition. He was brought to the hospital. This evidence is sufficient to establish that the deceased himself quarreled with the appellant. The appellant also sustained some simple injuries from the complainant side. There is no evidence on record with regard to why appellant was assaulted. It is also important to note that injuries of the appellant were suppressed by the prosecution.

20. Secondly, the prosecution witnesses expressed that there is no prior enmity between the appellant and the deceased. The defence version seems probable that the deceased demanded money from the appellant. When the appellant refused to give money, then 8 Cr. A. No.2446/2007 due to sudden quarrel without any premeditation, this incident happened. There is no evidence on record which establish that the appellant killed the deceased in a pre-planned way.

21. After considering the entire finding of Dr. K.K. Chaturvedi (PW-

5), we are of the view that above injuries were caused to the deceased with intention by sharp cutting weapon.

22. In case of "B.D. Khunte Vs. Union of India and others, (2015) 1 SCC 286" the Hon'ble Apex Court has held as under:-

"What is critical for a case to fall under Exception 1 to Section 300 IPC is that the provocation must not only be grave but sudden as well. It is only where the following ingredients of Exception 1 are satisfied that an accused can claim mitigation of the offence committed by him from murder to culpable homicide not amounting to murder:

(1) The deceased must have given provocation to the accused. (2) The provocation so given must have been grave.

(3) The provocation given by the deceased must have been sudden.

(4) The offender by reason of such grave and sudden provocation must have been deprived of his power of self-control; and (5) The offender must have killed the deceased or any other person by mistake or accident during the continuance of the deprivation of the power of self-control.

23. In case of "Arjun and another Vs. State of Chhattisgarh, (2017) 3 SCC 247", the Hon'ble Apex Court has held as under:-

"The accused, as per the version of PW-6 and eye witness account of other witnesses, had weapons in their hands, but the sequence of events that have been narrated by the witnesses only show that the weapons were used during altercation in a sudden fight and there was no pre-meditation. Injuries as reflected in the post-mortem report also suggest that appellants have not taken "undue advantage" or acted in a cruel manner. Therefore, in the fact 9 Cr. A. No.2446/2007 situation, exception (4) under Section 300 IPC is attracted. The incident took place in a sudden fight as such the appellants are entitled to the benefit under Section 300 exception (4) IPC.

When and if there is intent and knowledge, then the same would be a case of Section 304 Part I IPC and if it is only a case of knowledge and not the intention to cause murder and bodily injury, then the same would be a case of Section 304 Part II IPC. Injuries/incised wound caused on the head i.e. right parietal region and right temporal region and also occipital region, the injuries indicate that the appellants had intention and knowledge to cause the injuries and thus it would be a case falling under Section 304 Part I IPC. (See also: "Ram Autar and others Vs. State of Uttar Pradesh, (2017) 2 SCC 449).

24. In case of Devendra Nath Srivastava Vs. State of Uttar Pradesh and Preeti Srivastava Vs. Devendra Nath Srivastava and another, (2017) 5 SCC 769, the Hon'ble Apex Court has held as under:-

"The offence would be "culpable homicide not amounting to murder", punishable under the first or the second part of Section 304, depending, respectively, on whether the second or the third clause of Section 299 is applicable. If this question is found in the positive, but the case comes within any of the exceptions enumerated in Section 300, the offence would still be "culpable homicide not amounting to murder", punishable under the first part of Section 304, of the Penal Code."

25. In view of the aforesaid discussion, in such circumstances and in the light of the principles laid down by the Hon'ble Supreme Court, we are of the opinion that the appellant caused injuries to the deceased with intention to cause his death in sudden provocation. The facts of the case are duly covered under Exception 4 of Section 300 of the Indian Penal Code in which it is prescribed that : 10 Cr. A. No.2446/2007

"Culpable homicide will not amount to murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel provided that the offender has not taken undue advantage or acted in a cruel or unusual manner."

26. Hence, in our opinion, the appeal is liable to be partly allowed. The offence committed by the appellant would fall under Section 304 Part I of the Indian Penal Code.

27. Consequently, the appeal filed by the appellant is partly allowed. His conviction and sentence under Section 302 of the Indian Penal Code awarded by the learned Trial Court is hereby set aside. The appellant is convicted for commission of offence punishable under Section 304 Part I of the IPC. The appellant is in custody since 2007. He is awarded sentence to the extent already undergone which is more than 10 years. He is further awarded fine of Rs. 5,000/- in place of Rs.1,000/- In case of default of payment of fine, the appellant shall further undergo RI for six months.

28. Copy of this judgment be sent to the Court below for information and compliance along with its record.

                   (S.K. Gangele)                              (Smt. Anjuli Palo)
                      Judge                                         Judge

pn/vidya


 Digitally signed by
 PANKAJ NAGLE
 Date: 2018.02.07
 10:33:44 +05'30'

Unlock Advanced Research with PRISMAI

Madhya Pradesh High Court