Ganesh Prasad vs The State Of Madhya Pradesh
2021 Latest Caselaw 7331 MP

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,

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.

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

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

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

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).

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

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.

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'