Madhya Pradesh High Court
Salagram And Anr. vs The State Of Madhya Pradesh on 20 December, 2022
Author: Satyendra Kumar Singh
1
Cr.Appeal No.242 of 2014
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE SUBODH ABHYANKAR
&
HON'BLE SHRI JUSTICE SATYENDRA KUMAR SINGH
ON THE 20th DECEMBER, 2022
CRIMINAL APPEAL No. 242 of 2014
BETWEEN:-
SALAGRAM S/O RAJARAM, AGED 32 YEARS,
OCCUPATION: LABOUR VILL. CHHAYAN
1.
TAPPAR/ BADI, TEH. BAGLI, DISTT. DEWAS
(MADHYA PRADESH)
SMT. MAYABAI W/O SALAGRAM OCCUPATION:
2. LABOUR VIL. CHHAYAN TAPPAR/ BADI, TEHSIL
BAGLI, DISTT. DEWAS (MADHYA PRADESH)
.....APPELLANTS
(BY SHRI C.L. YADAV SR ADVOCATE WITH SHRI
NEERAJ GAUR, ADVOCATE)
AND
THE STATE OF MADHYA PRADESH
THRU.P.S.BAGLI, DEWAS (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI SUDHANSHU VYAS, GOVT. ADVOCATE)
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Reserved on : 11.10.2022
Pronounced on : 20.12.2022
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This appeal having been heard and reserved for orders coming on
for pronouncement this day, JUSTICE SATYENDRA KUMAR SINGH
passed the following:
JUDGMENT
Cr.Appeal No.242 of 2014
Satyendra Kumar Singh, J.,
This appeal under Section 374(2) of the Code of Criminal
Procedure, 1973(2 of 1974) [in short Cr.P.C.] has been preferred against
the judgment dated 23.01.2014, passed by the Court of Additional
Session Judge, Distt. Bagli Distt. Dewas (M.P.) in S.T. No.185/2012,
whereby the appellants have been convicted under Section 302 and 201
of Indian Penal Code, 1860 (in short IPC) and sentenced to suffer Life
Imprisonment with fine of Rs.50,000/-each and R.I. for 07-07 years
with fine of Rs. 5,000/-each respectively . In case of default of payment
of fine to undergo 05 years RI and 01 year SI each.
2. Prosecution story in brief is that:
(i) On 29.01.2012 at about 20:00-20:30 hours, when complainant
Hansraj and Member, Jila Panchayat, Ramesh were standing near square
at village- Badi, they received an information that an injured person
was lying in a pool of blood in the courtyard of Rajaram Bagri (Father
of appellant Salagram), situated in village Chhayan. They rushed to the
place of occurrence and saw a person lying in a pool of blood, whose
throat slitted from front side, due to which he was unable to speak.
Complainant Hansraj identified the injured as Deepak Balai, a resident
of his village- Karondiya. Ramesh informed the police, on which
Constable Rajendra Singh reached the spot and brought the injured
Deepak to Civil Hospital, Bagli, where at about 22:10 hours, Dr.
Prakash Pandit medically examined him and found an incised stab
wound with profused bleeding over his anterior neck as per MLC report
(Ex. P-15). On being asked by the police vide letter (Ex. P-12), he gave
his report (Ex. P-13) that since trachea of the injured was cut seriously,
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therefore he was unable to give his statements. He referred him for X-
ray examination and further treatment to M.Y. Hospital Indore.
(ii) On the same day, at about 23:00 hours, complainant Hansraj
lodged the FIR (Ex. P-1) at Police Chowki Kamlapur, on the basis of
which in the same intervening night on 30.01.2012 at about 02:30
hours, SHO D.N. Rajawat registered the FIR bearing Crime No.
28/2012 (Ex. P-18) at P.S. Bagli, Distt. Dewas, for the offence
punishable u/S 307 of IPC against unknown person. Injured Deepak
Balai succumbed to the injuries, about which at about 02:40 hours,
Merg Intimation report (Ex. P-9) was registered at the same P.S. Bagli.
ASI Chain Singh went to the hospital, called the witnesses, prepared
Nakshapanchayatnama (Ex. P-3) of the body of the deceased Deepak
and sent the same for postmortem examination. Dr. Prakash Pandit
conducted the postmortem of the body of deceased and prepared his
postmortem report (Ex. P-17). He opined that the death of the deceased
ocurred due to extensive heamorrage and shock as a result of large
incised stab wound found above thyriod cartlidge with cut down of
trachea and oesophygus within 12 hours from the time of postmortem
and nature of deathwas homicidal.
(iii) I/O SHO D.N. Rajawat called the Scene of Crime Unit Distt.
Dewas and inspected the place of occurrence and prepared the spot map
(Ex. P-2). He seized the plain and blood soaked soil from the courtyard
as well as from inside the house of the appellants, one blood soaked
bedding (Article-A) and a tapela(container) containing blood mixed
water used for washing vide seizure memo (Ex. P-8). Sr. Scientist,
Scene of Crime Unit Distt. Dewas, Syed Aijazuddin also prepared Spot
Cr.Appeal No.242 of 2014
Inspection report (Ex. P-11). He arrested the appellant Salagram vide
arrest memo (Ex. P-4) and seized the jacket (Article-D), worn by him,
as per seizure memo (Ex. P-5). On 31.01.2012, he recorded his
disclosure statements (Ex. P-6), on the basis of which, on his instance,
seized a blood stained axe (Article-B) and a blood soaked blanket
(Article-C) from his house. Vide letter dated 27.02.2012 (Ex. P-20), sent
all the seized articles to FSL for forensic/ chemical examination. FSL
report (Ex. P-21) was obtained and after completion of investigation
chargesheet was filed against the appellants, before the Court of JMFC
Bagli, who committed the case to the Court of Sessions Judge, Dewas,
who thereafter, made over the same to the Court of Additional Sessions
Judge Bagli, Distt. Dewas.
3. Learned Trial Court considering the material prima-facie
available on record, framed the charges under Sections 302 and 201 of
IPC against the appellants, who abjured their guilt and prayed for trial.
In their statements recorded u/S 313 of Cr.P.C., they pleaded their false
implication in the matter. They have examined appellant Salagram
himself and his brothers Ghanshyam and Bhav Singh in their defence.
4. Learned Trial Court after appreciating the oral as well as
documentary evidence available on record convicted and sentenced the
appellants u/S 302 and 201 of IPC as mentioned in para-1 of this
judgement. Being aggrieved with the said judgment of conviction and
order of sentence, appellants have preferred this appeal for setting aside
the impugned judgment and discharging them from the charges framed
against them.
5. Learned counsel for the appellants submits that the learned Trial
Cr.Appeal No.242 of 2014
Court has committed a legal error while appreciating the evidence
available on record. Prosecution case is based on circumstantial
evidence and prosecution witnesses themselves have supported the
defence taken by the appellants that after the incident injured Deepak
had crawled and entered into the house of the appellants. On the
suggestion of the complainant and other witnesses present on the spot,
injured Deepak was taken out from the house of the appellants, and
provided bedding and blanket to save his life. Blanket was kept in the
house of the appellants on the date of incident itself. Hence, seizure of
the same alongwith axe, said to be made after about two days of the
incident, on the instance of the appellant Salgram from his same house
is highly suspicious and of no use. Appellants were not having any
motive to commit the murder of the deceased. Impugned judgement of
conviction and order of sentence convicting the appellants is without
any basis and the same may be set aside and the appellants may be
acquitted from the charges framed against them.
In support of his contentions, learned counsel for the appellants
has pressed into service, judgments rendered by the Apex Court in the
case of Bhim Singh Vs. State of Haryana[AIR 2003 SC 693], State of
Maharashtra Vs. Girish Ghanshyam Dube [(2000) 9 SCC 400],
Kartarey and Others Vs. State of U.P.[AIR 1976 SC 76], Amar Singh
Vs. State(NCT of Delhi) [AIR 2020 SC 4894].
6. Per contra, learned Public Prosecutor for the respondent-State
while supporting the impugned judgment of conviction and order of
sentence submits that the judgment was passed by the Trial Court after
proper appreciation of evidence available on record. The same is well
Cr.Appeal No.242 of 2014
reasoned establishing the guilt of the appellants beyond a reasonable
doubt. Therefore, confirming the impugned judgment of conviction and
order of sentence, the appeal filed by the appellants may be dismissed.
7. We have heard learned counsel for the parties at length and
perused the record.
8. From the unchallenged testimony of deceased's father Jagdish
Balai (PW-1) and Raju Khan (PW-8), it is undisputed that on the date of
incident i.e. 29.01.2012, at about 13:30 hours, deceased had gone with
Raju on his motorcycle and thereafter, at about 14:00 hours, Raju gave
his motorcycle and sent him to bring diesel. From the statements of
Ravi Balai (PW-10), it seems also undisputed that on the same day at
about 16:00 hours, deceased reached Government School, Chhayan,
where Ravi Balai was working, parked the above motorcycle infront of
the above school, and went on foot towards village Khedakhal,
whereafter, at about 20-20:30 hours, he was found in injured condition
infront of appellants' house, situated in village Chhayan.
9. From the statements of Ramesh Patel (PW-3), Hansraj (PW-4) and
also from the statements of appellant Salagram (DW-1) and his brothers
Ghanshyam (DW-2) and Bhav Singh (DW-3), it seems also undisputed
that after finding the deceased in injured condition infront of appellants'
house, at about 20-20:30 hours, appellant no.1 Salagram's brother
Ghanshyam telephonically informed Ramesh about the incident, on
which Ramesh and complainant Hansraj reached the spot and saw the
deceased Deepak lying in a pool of blood, whose throat was slitted from
front side, due to which he was unable to speak. Complainant Hansraj
identified the injured as Deepak Balai, a resident of his village-
Cr.Appeal No.242 of 2014
Karondiya. Ramesh informed to Police Chowki Kamalpur, on which
police came and took the deceased to Civil Hospital Bagli.
10. Dr. Prakash Pandit (PW-12) deposed that on the same day at about
22:10 hours, he medically examined injured Deepak at Civil Hospital
Bagli, and found an incised stab wound measuring 6" x 2"x 4", caused
by hard and sharp object, with profused bleeding over his anterior neck
and referred him for X-ray examination and further treatment to M.Y.
Hospital Indore as per MLC report (Ex. P-15). Devkaran Balai (PW-5)
and Rameshwar Balai (PW-6) deposed that in the same intervening
night, when they were taking their nephew injured Deepak to Indore, he
succumbed to the injuries. Rameshwar Balai (PW-6) deposed that at
about 02:40 hours, he informed the police about the death of the
deceased, on which Merg Intimation report (Ex. P-9) was registered at
P.S. Bagli. ASI Chain Singh (PW-11) deposed that vide letter (Ex. P-
14), he also informed P.S. Bagli about the death of the deceased. He
deposed that next morning at about 6:30 hours, he went to the hospital,
prepared Nakshapanchayatnama (Ex. P-3) of the body of the deceased
and sent the same for postmortem examination.
11. Dr. Prakash Pandit (PW-12) deposed that he conducted the
postmortem of the body of deceased Deepak and found following
injuries on his body:
(i) Large Incised Wound over anterior neck above thyroid
cartrilage measuring 6" x 2" x 4" with cut down of trachea,
oesophagus, carotora,arteries, nerves and veins etc.
(ii) Multiple Abrasions four in number over left lower interior
part of chest measuring 1"x 1".
Cr.Appeal No.242 of 2014
(iii) Abrasion near left knee joint measuring 1"x 1".
12. Dr. Prakash Pandit (PW-12) deposed that he prepared postmortem
report (Ex. P-17) and opined that mode of deceased's death was
extensive heamorrage and shock due to large incised stab wound above
thyriod cartlidge with cut down of trachea and oesophygus within 12
hours from the time of post-mortem and nature of death was homicidal.
Appellants have not challlenged the aforesaid facts, therefore, this fact
is established that on the date of incident, at about 20:00 hours,
deceased Deepak was assaulted by hard and sharp object and was found
in injured condition infront of appellants' house and thereafter he
succumbed to the injuries. The act of causing such large incised wound
measuring 6"x2"x4", with hard and sharp object over anterior neck
above thyroid cartrilage with cut down of trachea, oesophagus, carotora
arteries, nerves and veins etc. itself shows that the same was caused
with an intent to commit his murder. Hence, this established that
deceased was murdered.
13. So far as the issue whether the aforesaid injuries found on the
body of the deceased - Deepak were caused by the appellants is
concerned, the prosecution case is based on circumstantial evidence.
The circumstances relied upon by the prosecution are as follows:
(i) Deceased Deepak was found in injured condition lying
in a pool of blood, whose throat was slitted from front side,
infront of appellants' house,
(ii) Deceased's blood stains were found all around the
injured and also inside the appellants' house,
(iii) Appellants were present on the spot at the time of
Cr.Appeal No.242 of 2014
incident and they did not furnish any explanation, which
appears to the Court to be probable and satisfactory as to
how room of their house and articles (bedding etc.) placed
therein were stained with the deceased's blood,
(iv) The blood stained axe used in the crime was seized on
the instance of the appellant no.1, from his house.
14. Appellant no.1 - Salagram (DW-1) deposed that at the time of
incident, when he came out of his house on hearing barking of dogs'
from outside, he saw the deceased lying on the road in front of his
house, whose throat was slitted from the front side. His brothers
Ghanshyam (DW-2) and Bhav Singh (DW-3) also made similar
statements. They all deposed that after finding the deceased in injured
condition, Ghanshyam telephonically informed Ramesh Patel, who
came on the spot alongwith Hansraj. Ramesh Patel (PW-3) and Hansraj
(PW-4) both have supported the aforesaid fact and deposed that after
recieving the information, when they reached the spot, they found the
deceased lying in an injured condition in a pool of blood infront of the
house of the appellant no.1 - Salagram. They deposed that blood was all
around the injured. I/O D.N. Rajawat (PW-14) deposed that after
recieving the information, when he reached the spot and inspected the
place of occurance, he found blood stains in appellant no.1 - Salagram's
room, bedding, blanket etc. Sr. Scientist, Scene of Crime Unit Distt.
Dewas, Syed Aijazuddin (PW-P9), in his statement and spot inspection
report (Ex. P-11), also stated so.
15. Appellant no.1 - Salagram (DW-1) as well as his brothers
Ghanshyam (DW-2) and Bhav Singh (DW-3), all deposed that at the
Cr.Appeal No.242 of 2014
time of incident deceased had entered into the appellants' house to save
himself and when Ramesh Patel alongwith Hansraj came on the spot
and told them to take out the deceased from the appellants' house, then
appellant no.1 with the help of his brothers took out the deceased from
his house. They deposed that on the instance of Ramesh Patel, appellant
no.1 gave his bedding (godri) and blanket to the deceased. Ramesh
Patel (PW-3) and Hansraj (PW-4), in their examination-in-chief deposed
that when they reached the spot, they found the deceased at about 15ft
away from the house of the appellant no.1 - Salagram, but during their
cross-examination, on being asked, they stated that when they were
talking with the appellant no.1 and his brothers, deceased had entered
into the appellants' house and thereafter, Ramesh told appellant no.1 to
take out the deceased from his house and to give him bedding and
blanket.
16. From the aforesaid evidence of appellant Salagram (DW-1), his
brothers Ghanshyam (DW-2), Bhav Singh (DW-3) and also suggestions
given to Ramesh Patel (PW-3) and Hansraj (PW-4), during their cross-
examination on behalf of the appellants, there remains no doubt that the
blood stains found in the room of appellants' house and also the blood
stains found on the bedding, blanket etc., were the stains of deceased's
blood. Hence, strong burden lies upon the appellants to establish the
defence that at the time of incident, deceased himself entered into their
house in injured condition to save himself and on the instance of
witness Ramesh Patel, appellant no.1 took the deceased out of his house
and gave bedding and blanket to him, due to which appellants' room,
bedding, blanket and clothes etc. were stained with deceased's blood. In
Cr.Appeal No.242 of 2014
this regard, it is appropriate to rely on the observations made by the
Hon'ble Apex Court in the case of State of Rajasthan Vs. Kashi Ram
(2006) 12 SCC 254, relevant para is as follows:
23. It is not necessary to multiply with authorities. The
principle is well settled. The provisions of Section 106 of the
Evidence Act itself are unambiguous and categoric in laying
down that when any fact is especially within the knowledge of
a person, the burden of proving that fact is upon him. Thus, if
a person is last seen with the deceased, he must offer an
explanation as to how and when he parted company. He must
furnish an explanation which appears to the Court to be
probable and satisfactory. If he does so he must be held to
have discharged his burden. If he fails to offer an explanation
on the basis of facts within his special knowledge, he fails to
discharge the burden cast upon him by Section 106 of the
Evidence Act. In a case resting on circumstantial evidence if
the accused fails to offer a reasonable explanation in
discharge of the burden placed on him, that itself provides an
additional link in the chain of circumstances proved against
him. Section 106 does not shift the burden of proof in a
criminal trial, which is always upon the prosecution. It lays
down the rule that when the accused does not throw any light
upon facts which are specially within his knowledge and
which could not support any theory or hypothesis compatiable
with his innocence, the Court can consider his failure to
adduce any explanation, as an additional link which
completes the chain. The principle has been succinctly stated
in Re. Naina Mohd. AIR 1960 Madras, 218.
17. Since prosecution has not alleged any specific allegation against
appellant no.2 - Maya Bai and the prosecution case itself is that when
Cr.Appeal No.242 of 2014
appellant no.1 saw the deceased in his house with appellant no.2 -
Maya Bai, he assaulted the deceased with axe. In this regard specific
suggestion has been given by the prosecution to the appellant no.1-
Salagram (DW-1), during his cross-examination. There is nothing on
record which indicates that appellant no.2 - Maya Bai assaulted the
deceased or in any way assisted her husband - appellant no.1 Salagram
in assaulting the deceased. Hence, in the light of suggestions given by
the prosecution to the appellant no.1 - Salagram during his cross-
examination, allegations alleged against the appellant no.2 - Maya Bai
that she was involved in committing the crime appears to be very much
doubtful and therefore, learned trial Court has committed error in
convicting the appellant no.2 - Maya Bai for the offence punishable u/S
302 and 201 of IPC.
18. So for as the involvement of appellant no.1 - Salagram is
concerned, as the strong burden lies upon him to establish his defence
that at the time of incident deceased himself entered into his house in
injured condition and when appellant no.1 took the deceased out from
his house and gave bedding and blanket to him, his clothes, bedding,
blanket etc. were stained with deceased's blood, and the evidence
produced by him in this regard are inconsistent and contradictory to his
own statements. Appellant no.1 - Salagram (DW-1), his brothers
Ghanshyam (DW-2) and Bhav Singh (DW-3) deposed that deceased
entered into his house prior to the coming of the witnesses Ramesh and
Hansraj, while Ramesh Patel (PW-3) and Hansraj (PW-4) deposed that
when they reached the spot, deceased was lying about 15 ft away from
the house of the appellants' and deceased entered into the appellants'
Cr.Appeal No.242 of 2014
house when they were talking with the appellant no.1 and his brothers.
The defence taken by the appellant no.1 - Salagram apparently appears
to be unnatural as no injured person, whose throat was slitted from the
front side, would enter into the house of an unknown person to save
himself.
19. Admittedly, appellant no.1 - Salagram's brothers Ghanshyam first
of all informed Ramesh Patel (PW-3) about the incident and therafter
Ramesh Patel informed the police, which clearly indicates that Ramesh
Patel is some how connected with the appellant no.1 - Salagram and is
not an independent witness. Appellant no.1 - Salagram's conduct as
well as his brother's conduct of calling witness Ramesh Patel instead of
police make appellant no.1 Salagram's defence more suspicious.
Nothing has been asked from Dr. Prakash Pandit (PW-12), who
medically examined the deceased, about the ability of the deceased that
whether he was able to enter into the house of appellants by crawling or
not. Deceased's MLC report nowhere reveals that any such injury of
crawling was found on the body of the deceased.
20. In such facts and circumstances of the case, in our considered
opinion, the appellant no.1 -Salagram has failed to offer an explanation on
the basis of facts within his special knowledge that how his room,
bedding, blanket, clothes etc. were stained with deceased's blood, and to
furnish any explanation in this regard, which appears to the Court to be
probable and satisfactory, and to discharge the burden cast upon him by
section 106 of the evidence Act. Hence, there remains no doubt that
deceased was assaulted by none else than the appellant no.1 -Salagram, in
his house and learned Trial Court has rightly convicted the him for the
offence punishable u/S 302 of IPC.
Cr.Appeal No.242 of 2014
21. Prosecution in its support has seized the blood stained 'axe' (Article-
B), the weapon used in the crime, alongwith blood soaked blanket
(Article-C) and jacket (Article-D), worn by the appellant no.1 - Salagram.
I/O D.N. Rajawat (PW-14) deposed that He arrested the appellant no.1
-Salagram vide arrest memo (Ex. P-4) and seized the jacket (Article-D),
worn by him, as per seizure memo (Ex. P-5). On 31.01.2012, he recorded
his disclosure statements (Ex. P-6), on the basis of which, on his instance,
seized a blood stained axe (Article-B) and a blood soaked blanket (Article-
C) from his house. Deokaran (PW-5) has supported his above statements,
but seizure of blood stained 'axe' (Article-B) has vehementally been
challenged by the appellant no.1 -Salagram. It has been argued on behalf
of him that when his house was searched on the date of incident, then the
seizure (Ex. P-5) made after two days of the incident on the basis of his
disclosure statement (Ex. P-6) is apparently false and concocted. Reliance
has been placed on the judgement passed by Hon'ble the Apex Court in the
case of Bhim Singh Vs. State of Haryana [AIR 2003 SC 693].
22. Admittedly, on the date of incident and also on the next day of the
incident searches were made of the house of appellant no.1, therefore,
submission made by the learned counsel for the appellants that the
disclosure statement and seizure memo, said to be made on third day of the
incident are doubtful, have force. But seizure of appellant no.1 Salagram's
jacket, bedding, blanket etc have not been challenged and admittedly all
the above articles were stained with deceased's blood, therefore, only on
the basis of aforesaid mistake committed by the investigating officer, the
whole prosecution story cannot be doubted. It has also been argued on
behalf of the appellants that as this fact has not been brought on record
that the injuries found on the body of the deceased were caused by the
Cr.Appeal No.242 of 2014
weapon 'axe', seized in the matter, therefore, also prosecution case has
becomes doubtful. Reliance has been placed on the judgement passed by
Hon'ble the Apex Court in the cases of State of Maharashtra Vs. Girish
Ghanshyam Dube [(2000) 9 SCC 400], Kartarey and Others Vs. State
of U.P.[AIR 1976 SC 76] and Amar Singh Vs. State(NCT of Delhi)
[AIR 2020 SC 4894].
23. Dr. Prakash Pandit (PW-12) specifically stated in his statement
and MLC report (Ex. P-15), that during medical examination of the
injured Deepak, he found an incised stab wound measuring 6" x 2"x 4",
caused by hard and sharp object, and the facts of this case are very
peculiar, wherein it has been found that deceased was assaulted in the
house of appellant no.1 -Salagram, and he has failed to offer an
explanation on the basis of facts within his special knowledge that who
assaulted him in his house, which appears to the Court to be probable and
satisfactory. Hence, the citations cited by the learned counsel for the
appellants are of no assistance to him.
24. In view of the aforesaid discussion, although prosecution has
proved its case beyond reasonable doubt that appellant no.1 -Salagram
committed the murder of the deceased, but so for as the allegation
withregard to causing disappearance of evidence is concerned, since the
prosecution case itself is that the 'axe' was found in the house of appellant
no.1, and admittedly the same was searched by the investigating officer as
well as team of Scene of Crime Unit, therefore, it cannot be said that he
caused disapearance of evidence by placing the 'axe' in blanket in the same
house. Hence, in our considered opinion, the learned Trial Court has not
committed any error in convicting the appellant no.1 -Salagram for the
offences punishable u/S 302, but his conviction u/S 201 of IPC is not
Cr.Appeal No.242 of 2014
sustainable and, therefore, the same is liable to be set aside.
25. So far as sentence awarded to the appellant no. 1 - Salagram for the
offence punishable u/S 302 of IPC i.e. to suffer Life Imprisonment with
fine of Rs.50,000/- is concerned, learned trial Court has not committed
any error in awarding jail sentence of Life Imprisonment and imposing
fine amount of Rs.50,000/, but the sentence awarded in default of
payment of fine amount i.e. to suffer additional RI for 05 years appears
to be very harsh and the learned Trial Court ought not to have imposed
such sentence for non-payment of fine amount. In this regard, judgment
passed by Apex Court in the case of Shantilal vs. State of M.P. (2007)
11 SCC 243., wherein the Apex Court considered the imprisonment in
default of payment of fine with reference to various provisions of I.P.C.
and the Cr.P.C. and held as under:-
"31. ... The term of imprisonment in default of payment of fine
is not a sentence. It is a penalty which a person incurs on
account of non-payment of fine. The sentence is something
which an offender must undergo unless it is set aside or
remitted in part or in whole either in appeal or in revision or in
other appropriate judicial proceedings or "otherwise". A term
of imprisonment ordered in default of payment of fine stands on
a different footing. A person is required to undergo
imprisonment either because he is unable to pay the amount of
fine or refuses to pay such amount. He, therefore, can always
avoid to undergo imprisonment in default of payment of fine by
paying such amount. It is, therefore, not only the power, but the
duty of the court to keep in view the nature of offence,
circumstances under which it was committed, the position of
the offender and other relevant considerations before ordering
the offender to suffer imprisonment in default of payment of
Cr.Appeal No.242 of 2014
fine. 32. A general principle of law reflected in Sections 63 to
70 IPC is that an amount of fine should not be harsh or
excessive. The makers of IPC were conscious of this problem.
The authors of the Code, therefore, observed: "Death,
imprisonment, transportation, banishment, solitude, compelled
labour, are not, indeed, equally disagreeable to all men. But
they are so disagreeable to all men that the legislature, in
assigning these punishments to offences, may safely neglect the
differences produced by temper and situation. With fine, the
case is different. In imposing a fine, it is always necessary to
have as much regard to the pecuniary 8 Cr. A. No.863/2010
circumstances of the offender as to the character and
magnitude of the offence. (Ratanlal & Dhirajlal's Law of
Crimes, 26th Dec.,2007, p.221)
26. In view of the above judgment passed in the case of Shantilal
(supra), the sentence awarded in default of payment of fine amount is
hereby modified. Rigorous imprisonment of 5 years awarded to the
appellant no.1 - Salagram in default of payment of fine is reduced from
R.I. for 5 years to R.I. for 2 years.
27. In view of the aforesaid discussion, prosecution has very well
proved its case against appellant no. 1 - Salagram for the offence
punishable u/S 302 of IPC. However, we have no hesitation to hold that
prosecution has failed to prove the guilt of appellant no.1 - Salagram for
the offence punishable u/S 201 of IPC and appellant no.2- Maya Bai for
the offences punishable u/s 302 and 201 of IPC beyond reasonable doubt.
Hence, appeal is partly allowed and we pass the following order:
(i) The judgment of conviction and order of sentence dated
23.01.2014, passed by the Court of Additional Sessions Judge,
Dewas in S.T.No.185/2012 is allowed only to the extent that
Cr.Appeal No.242 of 2014
appellant no.1 - Salagram stands acquitted from the offences
punishable under 201 of IPC.
(i) However, considering overall facts of the case, judgment of
conviction and order of sentence as regards appellant no.1 -
Salagram for the offences punishable u/S 302 of IPC is affirmed.
(ii)Fine amount for the offence punishable u/S 201 of IPC (if any)
deposited by the appellant no.1 - Salagram be refunded to him.
(iii) Rigorous imprisonment of 5 years awarded to the appellant no.1 -
Salagram in default of payment of fine of Rs. 50,000/- is reduced
from R.I. for 5 years to R.I. for 2 years.
(iv) The judgment of conviction and order of sentence dated 23.01.2014
passed by the Court of Additional Sessions Judge, Dewas in
S.T.No.185/2012, whereby appellant no.2 - Maya Bai has been
convicted under Sections 302 and 201 of IPC and sentenced to
undergo life imprisonment with fine of Rs.50,000/- and RI for 07
years with fine of Rs. 5,000/- and in default of payment of fine,
additional RI for 05 years and S.I. for 01 year is hereby set aside.
(ii) Appellant no.2 - Maya Bai be set at liberty, if not required in
any other case.
(iii) Fine amount(if any) deposited by the appellant no.2 - Maya
Bai be refunded to her.
(v) For the sake of convenience, table is reproduced below:
Conviction Sentence
Imprisonment Fine Amount Modified Modification
(Rs.) Additional
Imprisonment
in Default of
payment of
Cr.Appeal No.242 of 2014
fine
APPELLANT NO. 1 - Salagram
302 of IPC Life Rs.50,000/- RI for 2 years Convicted
imprisonment
201 of IPC 07 years R.I. Rs. 5,000/- SI for 1 year Acquitted
APPELLANT NO. 2- MAYA BAI
302 of IPC Life Rs.50,000/- RI for 5 years Acquitted
imprisonment
201 of IPC 07 years R.I. Rs. 5,000/- SI for 1 year Acquitted
The Registry is directed to send back the trial Court record
forthwith alongwith the copy of this judgment.
Certified copy as per rules.
(Subodh Abhyankar) (Satyendra Kumar Singh)
Judge Judge
sh/- 20-12-2022 20-12-2022
SEHAR HASEEN
2022.12.20
18:20:31 +05'30'
