Madhya Pradesh High Court
Veeram & 03 Ors. vs State Of M.P. on 7 December, 2021
Author: Vivek Rusia
1
HIGH COURT OF MADHYA PRADESH: BENCH AT INDORE
D.B.: Hon'ble Shri Justice Vivek Rusia
Hon'ble Shri Justice Satyendra Kumar Singh , JJ.
Criminal Appeal No.403/2009
1 Veeram S/o Late Kumar Singh, aged
about 26 years, R/o Village Baliyapura,
District Rajgarh (Biaora)
2 Dulichandra S/o Late Shankar, aged
about 32 years, R/o Village Jamuniya, Appellant (s)
District Rajgarh (Biaora)
3 Suraj Singh S/o Bapulal, aged about 21
years, R/o Village Jamuniya, District
Rajgarh (Biaora)
4 Bane Singh S/o Madanlal, aged about 28
years, R/o Village Chouki, District
Rajgarh (Biaora)
Versus
State of Madhya Pradesh, through Police
Station Biaora, District Rajgarh (Biaora) Respondent (s)
Shri Vivek Singh, learned counsel for the appellant.
Ms. Mamta Shandilya, learned Government Advocate for the
respondent/State.
JUDGMENT
(Heard and reserved on 04.12. 2021)
(Delivered on 07.12.2021)
PER VIVEK RUSIA, J: -
The appellants herein have been convicted and
sentenced as below vide judgment dated 30.03.2009 passed by
Second Additional Sessions Judge (Fast Track Court), Biora,
District Rajgarh in Session Case No.180/2007.
Appellants Conviction Imprisonment Fine In default of
fine
Veeram 302 of I.P.C. Life Imprisonment Nil Nil
Dulichandra 326 of I.P.C. 5 years R.I. Rs. 2,000/- 2 months R.I.
Suraj Singh 323 of I.P.C. 1 year R.I. Rs.1,000/- 1 month R.I.
Bane Singh 324 of I.P.C. 2 years R.I. Rs. 1,500/- 2 Months.
(2) Briefly stated facts relevant and essential for disposal of
the appeal are noted hereinbelow: -
(i) The complainant Harisingh resident of Village Balyapura
lodged an FIR on 27.07.2007 at Police Station Biaora alleging
that he went to village Gindorhat alongwith his father Chain
Singh, brother Parwat Singh and other villagers to earn the
livelihood. After returning to home, he found that Parwat Singh
Bheel is putting bushes in front of his house. Harisingh, Chain
Singh and Parwat Singh have objected to it, then with the
intention to kill appellant No.1 Veeram gave a blow by Farsi to
Parwat Singh near his left ear and right thigh. Harisingh and
Chain Singh tried to break up the fight, then Dulichand gave a
blow by Farsi to Harisingh and due to which he sustained the
injury on his left hand and foot of right leg. The other two
accused, whose names do not know but can identity from their
face have also been assaulted by means of Farsi. The incident was
witnessed by Kalyansingh, Ramkala Bai, Jashodi Bai, Vijay
Singh, Keshar Singh, Nathi Bai, Guddi Bai and Mohan. The
police reached the spot and sent Parwat Singh for medical
examination looking at their health condition. Parwat Singh was
referred to Bhopal for treatment. Parwat Singh succumbed to his
injuries while undergoing treatment. Initial, the FIR was
registered for the offence punishable under Section 147, 148, 149,
294, 307, 506 of I.P.C. After receipt of information about the
death of Parwat Singh offence under Section 302 of I.P.C. was
also added. The dead body was sent for autopsy. The statements
of witnesses were recorded, thereafter, a charge sheet was filed
against the appellant Veeram Singh, Dulichandra, Suraj Singh
Banesingh. Since one of the accused was a juvenile at the time of
offence, therefore, charge-sheet against him was filed before the
Juvenile Court. The remaining four accused / the appellants were
tried after framing of charge under section 148, 302 of I.P.C. and
in alternate 302/34, 323 and 324 of I.P.C. Since the appellants
have denied the charges, therefore, the prosecution was called
upon to give evidence.
(3) The prosecution has examined as many as 14 witnesses and
exhibited 28 documents to prove its case. The accused persons,
upon being questioned under Section 313 Cr.P.C and when
confronted with the circumstances appearing against them in the
prosecution evidence, denied the same, claimed to be innocent
and stated false implication. In defence the appellants did not
examine any evidence but got exhibited Ex. D/1 to Ex. D/5 and
pleaded false implication.
(4) After evaluating the evidence, came on record, the learned
Additional Session Judge has acquitted the appellants for the
offence punishable under Section 148, 302/34 of I.P.C. but
convicted the appellant No.1 for the offence punishable under
Section 302 of I.P.C. Appellant No.2 has been convicted for the
offence punishable under Section 326 of I.P.C., appellant No.3
has been convicted for the offence punishable under Section 323
of I.P.C. and appellant No.4 has been convicted for the offence
punishable under Section 324 of I.P.C. and sentenced as stated
above. Aggrieved by the aforesaid, the Appellants are before this
court in criminal Appeal.
We have heard, Vivek Singh learned counsel for the
Appellant and Ms. Mamta Shandilya, the learned Government
Advocate for Respondent-State.
(5) After arguing at length, Shri Vivek Singh, learned counsel
for the appellants has confined his relief for reduction of sentence
in respect of appellant No.2 to 4 as they did not play an active role
and are on bail. They are the first offender and agriculturists hence
one chance for reformation be given to them. So far as appellant
No.1 Veeram is concerned, Shri Singh submits that it was not a
pre-planned murder, sudden dispute arose because of putting the
bushes by the appellant No.1 Veeram Singh. Out of anger, he gave
a single blow of Farsi on the head of the deceased which become
fatal. The learned Trial Court has held that there was no common
intention between the accused before assaulting to deceased and
other injured persons, therefore, there was no pre-planning to
commit this offence, hence, the offence under Section 302 of
I.P.C. is not made out. At the most, the appellant No.1 Veeram is
liable to be convicted under Section 304 (Part II) and the sentence
is liable to be reduced from the life to the period has already
undergone by him till date .
(6) Ms. Mamta Shandilya, learned Government Advocate
opposes the aforesaid prayer by submitting that the learned trial
court ought to have convicted all the appellants under Section
302/149 of I.P.C.as there was unlawful assembly with common
object to assault the deceased and other injured persons. All
appellants are liable to be convicted under Section 302 of I.P.C.
with aid of 149 of I.P.C. but since there is no appeal on behalf of
the state, therefore, except Veeram Singh, the other appellants
have rightly been convicted for the aforesaid offence. So far as
Veeram is concerned, he gave a blow by means of Farsi to
deceased on his head, hence he alone has rightly been convicted
under Section 302 of I.P.C. thus no interference is warranted.
We have perused the record as well as impugned judgment.
(7) Since there is no challenge to the finding in respect of the
incident, medical evidence, presence of appellants on the spot or
carrying Farsi in their hands, causing the injuries, hence, we
affirm the finding given by the trial court.
(8) Now, it is to be examined whether the act committed by
appellant No.1 Veerma will come within the ambit of Section 302
of I.P.C or section 304 Part-II of IPC and other the appellants have
rightly been convicted and appropriately sentenced by the learned
Additional Session Judge.
(9) The prosecution has examined Harisingh as PW-1,
according to him near about 06:00 pm, he alongwith his brother
Parwat Singh and other villagers came to his house and found that
Veeram has put bushes in front of his house and blocked the way
to approach the house. There was an altercation between them and
thereafter all the accused have assaulted them by means of Farsi.
He sustained the injury on his hand by Dulichandra.
(10) Harisingh (PW-1) was examined by Dr. Sandeep Narayan
(PW-8) and he found a deep incised wound between the fourth
and fifth finger and one incised wound on the left foot and the
third injury was an abrasion by means of a hard object. According
to his opinion, injury No.1 was grievous in nature and the
remaining injuries were simple in nature. Grievous hurt is defined
under Section 320 of I.P.C. and according to which 8 types of
hurts are designated as grievous hurt and the injuries sustained to
Hari Singh is not falling in any of the categories, therefore, the
injuries caused by appellant No.2 Dulichand were not grievous
hurt, hence, he has wrongly been convicted under Section 326 of
I.P.C. It will fall under Section 324 of I.P.C. only an injury caused
by means of an instrument for cutting as a weapon is likely to
cause death. This witness has admitted that there was no previous
enmity with Veeram and before the incident, there was no such
dispute with him in respect to putting the barricade. Thus we
accordingly convict him under Section 324 of I.P.C. and sentence
him 6 months R.I by enhancing the fine amount from Rs.2000/- to
Rs.4,000/-.
(11) Chain Singh (PW-2) has also supported the case of the
prosecution, he was assaulted by Bane Singh and Dulichandra by
means of Farsi. Bane Singh caused injury to his left leg, and he
started bleeding. Dulichandra has assaulted the upper part of his
head. He was also examined by Dr. Sandeep Narayan (PW-8),
who found incised wound size 5 cm x 1 cm and advised for X-ray.
He also found injury No.2 size 2 cm x 0.125 cm and swelling and
was advised for X-ray. In X-ray no such fracture was found. He
did not opine that these injuries come under the category of
grievous hurt. Accordingly, appellant No.4 Bane Singh has rightly
been convicted for the offence punishable under Section 324 of
I.P.C. but the sentence of two years is on the higher side, which is
liable to be reduced six months by enhancing the fine amount
from Rs. 1,500/- to Rs. 3,000/-.
(12) So far as appellant No.3 Suraj Singh is concerned, he has
also been assaulted although is not there in the FIR and none of
the injured made specific allegations against the Suraj for causing
the injury to them. Section 34 of I.P.C. has already been dropped
by the trial court. Hence, Suraj Singh has wrongly been convicted
under Section 323 of I.P.C. thus his conviction is set aside.
(13) That Chain Singh (PW-2) in his statement has deposed that
the dispute arose when Veeram was putting the bushes and he ob-
jected to it. There was no previous enmity with them, therefore, it
is clear that the dispute arose all of sudden without any premedita-
tion or pre-planning. Guddibai (PW-3) has also supported the
prosecution by stating that initially, the altercation took place and
thereafter, appellants have assaulted by means of Farsi. Nato Bai
(PW-4), Kalyan Singh (PW-5) and Keshar Singh (PW-6) have
stated in respect of recovery of Farsi from Veeram, Dhulechandra,
Bane Singh, Suraj Singh. Parwat Singh/deceased who was exam-
ined by Dr. J.K. Shakya (PW-10), who found as many as five in-
juries on his body. According to him, injuries No.1 and 2 were
caused by hard and sharp objects and injury No.1 was sufficient to
cause death. He has referred the injured to a higher side. The post-
mortem was carried out by Dr. Ashok Sharma (PW-13) and ac-
cording to him also the injury No.1 was sufficient to cause the
death of the deceased. Parwat Singh/deceased was examined Dr.
Jai Prakash Paliwal (PW-14) Director, Paliwal Hospital Bairasiya
Road, Bhopal and he found that the physical and mental condition
of the is very serious. His blood pressure reading was Zero,
breathing speed of 28 per minute and looking at his condition op-
eration was not advisable. He found brain was damaged in various
places. It is the intention to cause death. It is the intention that is
important to decide whether it is the case of murder or culpable
homicidal without intention to commit murder. As per evidence, it
is clear that the dispute arose because putting of bushes on the
way to their houses by the appellant No.1 Veeram and the number
of persons was objected to, therefore, the appellants have started
assaulting by means of Farsi. The Farsi is commonly available
with villages/ farmers because it is used for cutting the crop. At
that time of the incident, all were putting the bushes, therefore, the
Farsi was supposed to be in their hands and after some alterca-
tion, they have started assaulting by means of Farsi. The dispute
arose without premeditation, out of anger, hence, appellant No.1
Veeram is liable to be convicted under Section 304 (II) of I.P.C.
We find support from the judgment passed by the apex court in the
case of Lavghanbhai Vs. State of Gujrat reported in (2018) 2 SCC
(Cri) 461 has laid down the parameters which are to be taken into con-
sideration while deciding the question as to whether the case falls un-
der sec 302 or sec.304 Part II of IPC .
This Court in the case of Dhirendra Kumar versus State of Uttarak-
hand [ 2015 (3) SCALE 30] has laid down the parameters which are to
be taken into consideration while deciding the question as to whether a
case falls under Section 302 IPC or 304 IPC, which are the following:
(a) The circumstances in which the incident took place;
(b) The nature of weapon used;
(c) Whether the weapon was carried or was taken from the spot;
(d) Whether the assault was aimed on vital part of body;
(e) The amount of the force used.
(f) Whether the deceased participated in the sudden fight;
(g) Whether there was any previous enmity;
(h) Whether there was any sudden provocation.
(i) Whether the attack was in the heat of passion; and
(j) Whether the person inflicting the injury took any undue
advantage or acted in the cruel or unusual manner.
Keeping in view the aforesaid factors it becomes evident that the case
of the appellant would fall under Section 304 IPC as the incident took
place due to a sudden altercation which was a result of delay in pre-
paring lunch by the deceased. The appellant picked up a wooden object
and hit the deceased. The medical evidence shows that not much force
was used in inflicting blow to the deceased. The prosecution has not set
up any case suggesting that relationship between the husband and wife
was not cordial,otherwise. Manifestly, the incident took place due to
sudden provocation and in a heat of passion the appellant had struck a
blow on his wife, without taking any undue advantage. We are, there-
fore, of the opinion that it was an offence which would be covered by
Section 304 Part-II IPC and not 302 IPC.
(14) In view of the above discussion, we pass the following
order:
(i) Criminal Appeal filed by the appellants is
allowed in part.
(ii) The conviction of appellant No.1 Veeram
under Section 302 of I.P.C is converted into Section
304 Part- II of I.P.C. and he is sentenced to the period
of imprisonment already undergone while confirming
the fine amount.
(iii) The conviction of appellant No.2
Dulichandra under Section 326 of I.P.C is converted
into Section 324 of I.P.C. while reducing the sentence
from 5 years R.I. to 6 months R.I. by enhancing the
fine amount from Rs. 2000/- to Rs. 4,000/-.
(iv) The conviction of appellant No.3 Suraj Singh
under Section 323 of I.P.C. is set aside and he is
acquitted for the said charge.
(v). The conviction of appellant No.4 Bane Singh
under Section 324 of I.P.C is maintained while
reducing the sentence from 2 years R.I. to 06 months
R.I. by enhancing the fine amount from Rs. 1,500/-
to Rs. 3,000/-.
(vi). Since appellants No.2 to 4 are on bail, their bail
bonds stand discharged. If the appellants No.2 and 4
have not completed their jail sentence, they are
directed to surrender immediately before the trial
court to undergo their remaining part of the jail
sentence. However, they shall be entitled to set off
under section 428 of Cr.P.C.
(vii) Appellant No.3 Suraj, who is on bail, has been
acquitted for the charges under Section 323 of I.P.C,
therefore, he is not required to surrender before the
trial court. Fine amount if any deposited by him,
shall be returned to him forthwith.
(viii) Appellant No.1 Veeram be set at liberty, if not
required in any other case.
(ix) The judgment dated 30.03.2009 passed by
Second Additional Sessions Judge, (Fast Track
Court), Biaora, District Rajgarh passed in Sessions
Case No.180/2007 is accordingly modified.
The registry is directed to send back the Trial Court
record forthwith along with the copy of this judgment.
Certified copy as per Rules.
( VIVEK RUSIA ) (SATYENDRA KUMAR SINGH )
JUDGE JUDGE
praveen
PRAVEEN NAYAK
2021.12.07 17:46:01 +05'30'
