Pancham vs The State Of Madhya Pradesh Thr.
2021 Latest Caselaw 5580 MP

                  HIGH COURT OF MADHYA PRADESH
                         BENCH AT GWALIOR


                        Criminal Appeal No.1082/2015
        Pancham son of Kalicharan Aadiwasi,
        aged about 30 years, resident of Village Jhandapura,
        O.P. Magrauni, P.S. Narwar, Distt. Shivpuri
                                                    ... Appellant

                                           Vs.

        State of M.P through SHO,
        P.S. Narwar, Distt. Shivpuri
                                                                   ... Respondent

                                        Coram:

                       Hon. Shri Justice Sheel Nagu &
                       Hon. Shri Justice S.A.Dharmadhikari
-------------------------------------------------------------------------------------------
        Shri D.R.Mahor, Advocate for the appellant.
        Shri Rajesh Shukla, Dy.Advocate General for the
        respondent/State.

-------------------------------------------------------------------------------------------

                              JUDGMENT

(Delivered on this 17th day of September, 2021)

Per Dharmadhikari,J

This appeal has been preferred against the judgment dated

20.08.2015 passed by Additional Sessions Judge, Karera, District

Shivpuri in S.T.No.52/15 whereby the appellant has been convicted

under section 302 of the IPC and sentenced to imprisonment for life

with fine of Rs.2000/-, in default to suffer additional imprisonment for

one year.

:: 2 ::

Criminal Appeal No. 1082/2015

2. The prosecution story, succinctly stated, is that on 9/1/2015,

complainant Pappu Aadivasi along with his maternal uncle Sookha

and Randheera lodged a report to the effect that on 8/1/2015, at about

7-8 PM, when he was at his home, his mother-in-law Neema came

and informed him that her husband and son Pancham were fighting

with each other under intoxication. As complainant reached near the

house of his father-in-law Kalicharan, he found that Kalicharan and

his son i.e. present appellant Pancham were amidst an altercation and

were abusing each other filthily. Pancham was having a Lathi.

Kalicharan was abusing him. Being enraged, Pancham dealt a Lathi

blow on Kalicharan's head near right eye due to which Kalicharan fell

down. He again gave a Lathi blow on right occipital region. Blood

started gushing out and Kalicharan succumbed to the injuries on the

spot itself. The incident was witnessed by Sookha, Randhira and

other inhabitants of the locality, while appellant Pancham fled from

the spot.

It was upon such a complaint that morgue intimation 2/15 was

recorded and a case in respect of the offence punishable under Section

302 of the IPC was registered against the appellant at Crime No.8/15.

After inquest proceedings, the dead body was sent to Community

Health Centre, Narwar for post mortem. Dr. V.S.Uchadiya (PW8)

conducted the autopsy and opined that cause of death was injury to :: 3 ::

Criminal Appeal No. 1082/2015

brain. During investigation, spot map (Ex.P/3) was prepared and

blood stained and control earth were seized vide seizure memo

(Ex.P/6). The appellant was apprehended on 9/1/2015 vide arrest

memo (Ex.P/11) and at his instance the weapon of offence viz. Lathi

was recovered vide seizure memo (Ex.P/13). Seized ordinary and

blood stained soil, and Lathi were sent to FSL Gwalior for forensic

examination. However, the Serologist found that the spots on blood

stained soil were disintegrated and no conclusive opinion could be

given with regard to the Lathi seized at the instance of the appellant.

3. The appellant abjured the guilt and pleaded false implication. In

the examination under Section 313 of the Code of Criminal

Procedure, he pleaded that he had been implicated on the basis of

animosity and that the deceased had died having fallen on a stone.

However, no evidence was led in defence.

4. To bring home the charge, the prosecution examined as many

as 8 witnesses including complainant Pappu Aadivasi (PW1), Sooka

Aadivasi (PW2), Randheera (PW3) and Neema Aadivasi (PW4).

5. Upon a critical appraisal of the entire evidence on record, the

learned trial Judge, for the reasons recorded in the impugned

judgment, came to the conclusion that the appellant, with an intention

to cause death, had assaulted Kalicharan with Lathi thereby causing :: 4 ::

Criminal Appeal No. 1082/2015

his death on the spot and, accordingly, convicted him for the offence

punishable under section 302 of the IPC.

6. Legality and propriety of the conviction has been assailed

primarily on the ground of what is termed as mis-appreciation of

evidence on record. According to the learned counsel for the

appellant, conviction has been recorded despite material witnesses

Sooka (PW2), Randhira (PW3), Neema (PW4), Deepu Kushwah

(PW5) having turned hostile. Besides, the evidence of Pappu Aadivasi

(PW1) is fraught with contradictions and omissions. Even otherwise,

if the prosecution story is accepted as it is, then too the necessary

element of mens rea is missing so as to bring the offence within the

scope of S.300, IPC. As such, the learned trial Judge has erred in

convicting the appellant under section 302 of the IPC. In response,

learned counsel for the State, while inviting attention to the

incriminating pieces of evidence, has submitted that the conviction

was well founded.

7. Before adverting to the merits of the rival contentions in a right

perspective, it would be necessary to first advert to the medical

evidence on record. Dr. V.S.Uchadiya (PW8) during post mortem

examination recorded a lacerated wound of size 3 x 0.5 x 1.5 cm

above right side forehead 1 cm above eyebrow in post mortem report

(Ex.P/17). He found that frontal bone of skull was broken. Clotted :: 5 ::

Criminal Appeal No. 1082/2015

blood was present inside the wound. Dry blood was present above

right side face. No other injury was seen except the aforesaid injury.

On internal examination, the doctor found the dura mater to be

ruputured with brain hemorrhage. The doctor opined that cause of

death was injury no.1 (aforesaid injury) which was dangerous to brain.

The said injury was caused by hard and blunt object within 24 hours

of post mortem examination. Thus, from the medical evidence, it was

clearly established that the death of Kalicharan was homicidal in

nature.

8. Coming to the other evidence on record, Pappu Aadivasi

(PW1), who is immediate neighbour of the appellant, is the

complainant. In his examination-in-chief, he has testified that on the

fateful day, there was a quarrel between appellant and his father and

in an inebriated condition, appellant had dealt a Lathi blow on the

head of Kalicharan and had also kicked his abdomen due to which he

received injury on head and stomach and died on the spot. He has

deposed that as it was night time, he did not go immediately to lodge

report, but reported the incident on the next day. He has also deposed

that mother of appellant, on seeing the incident, had come to his

house. This witness has proved morgue intimation (Ex.P/1), FIR

(Ex.P/2), spot map (Ex.P/ 3), Safina form (Ex.P/4), Lash Panchnama

(Ex.P/5), seizure memo of blood stain and control earth (Ex.P/6), dead :: 6 ::

Criminal Appeal No. 1082/2015

body receipt (Ex.P/7) and Panchnama (Ex.P/8). In his cross-

examination, he has deposed that both appellant and his father were

heavily drunk at the relevant point of time. Previously also they used

to quarrel like this. In paragraph 4 he has denied the suggestion that

the death was caused due to fall on a stone.

Sooka Aadivasi (PW2) has deposed that he was informed the

next day by the Villagers about the incident. He claims not to have

seen the incident and has been declared hostile. Similarly, Randheera

(PW3) has not supported the prosecution version. He has deposed that

he was informed by Pappu (PW1) the next day about the incident and

then he had accompanied Pappu to the Poilce Station for lodging FIR.

Neema Aadivasi (PW4) is the wife of deceased and mother of

appellant. She has deposed that her husband used to consume liquor.

Appellant also used to drink at times. On the date of incident, her

husband, being intoxicated, had fallen down. She brought him home,

where again he fell down on the doorstep and sustained injury. She

has deposed that the appellant did not quarrel with the deceased. She

has not supported the prosecution version and has been declared

hostile.

Deepu Kushwaha (PW5), who has proved the arrest memo

(Ex.P/11), discovery memo (Ex.P/12) and recovery memo (Ex.P/13)

has also turned hostile.

:: 7 ::

Criminal Appeal No. 1082/2015

U.S.Mandeliya (PW6), SHO is the Investigating Officer. He

has proved FIR (Ex.P/2), spot map (Ex.P/3), Safina form (Ex.P/4),

Naksha Panchayatnama of dead body (Ex.P/5) and other relevant

documents including discovery memo (Ex.P/12) and seizure memo

(Ex.P/13) whereby Lathi was recovered at the instance of the

appellant.

Kishan Singh Bhadoriya (PW7) is the Head Constable. He has

proved morgue intimation (Ex.P/1) recorded at the instance of

complainant Pappu Aadivasi.

9. From the above, it is evident that Neema Aadivasi (PW4), who

is wife of the deceased and mother of the appellant, is an interested

witness. The learned trial Court has rightly not attached credence to

her evidence. Although some of the witnesses have turned hostile, yet

their testimonies do not go to shake the genesis of incident in the

backdrop of other incriminating evidence available on record. So far

as the argument with regard to contradictions and omissions in the

evidence of Pappu Aadivasi (PW1) is concerned, the same does not

weigh with this Court. It is well settled in law that the minor

discrepancies are not to be given undue emphasis and the evidence is

to be considered from the point of view of trustworthiness. The test is

whether the same inspires confidence in the mind of the court.

Minor contradictions, inconsistencies or insignificant embellishments :: 8 ::

Criminal Appeal No. 1082/2015

do not affect the core of the prosecution case and should not be taken

to be a ground to reject the prosecution evidence (Mritunjoy Biswas

v. Pranab ((2013) 12 SCC 796, referred to). Further, conviction can

be based on the evidence of a solitary witness. Suffice would be to

refer to the celebrated decision of the Apex Court in Vadivelu

Thevar v. State of Madras AIR 1957 SC 614 that has been

consistently followed in all subsequent decisions on the point

including the one in Namdeo v. State of Maharashtra AIR 2007 SC

(Supp) 100.

However, admittedly, the offence has taken place under

intoxication. The appellant and deceased both were drunk at the time

of incident. The incident appears to have occurred in a heat of passion

and without any premeditation. As such, the appellant cannot be laden

with the necessary "intention", so as to bring his act within the

purview of S.300, IPC, as the same falls within Exception 4 thereto.

10. In view of the aforesaid, the conviction of the appellant under

section 302 of the IPC cannot be sustained and the same deserves to

be altered to one under section 304 Part II of the IPC. The appellant

has already suffered more than six years of incarceration. Taking into

consideration the facts and circumstances of the case interests of

justice would be met if the term of custodial sentence awarded to him

is reduced to the period already undergone.

:: 9 ::

Criminal Appeal No. 1082/2015

11. In the result, the appeal is allowed in part. The conviction of the

appellant is converted from S.302 of the IPC to one under S.304 Part

II of the IPC and the term of custodial sentence is reduced to the

period already undergone, though the fine sentence with default

stipulation is maintained. Appellant is in jail. Subject to depositing the

fine amount, if not already deposited, he be released forthwith if not

required in any other offence.

                     (Sheel Nagu)                            (S.A.Dharmadhikari)
                       Judge                                       Judge

(and)

        ANAND
        SHRIVASTAV
        A
        2021.09.17
        17:58:16
        +05'30'