Burkiya vs The State Of M.P.
2022 Latest Caselaw 16880 MP

       IN THE HIGH COURT OF MADHYA PRADESH

                             AT INDORE
                                BEFORE
      HON'BLE SHRI JUSTICE RAJENDRA KUMAR (VERMA)

                 CRIMINAL APPEAL No. 1403 of 1998

 BETWEEN:-
 BURKIYA S/O MICHRA BHEEL,
 AGED ABOUT 30 YEARS,
 R/O VILLAGE BHEEL TALPADA,
 DISTRICT:-DHAR (MADHYA PRADESH)
                                                         .....APPELLANT
 (SHRI TOUSIF WARSI APPEARED FOR APPELLANT)

 AND

 THE STATE OF M.P. (MADHYA PRADESH)
 THROUGH POLICE STAION: MANDAV,
 DISTRICT : DHAR,
                                                        .....RESPONDENT
 ( SHRI RAJESH JOSHI, G.A. APPEARING ON BEHALF OF ADVOCATE
 GENERAL/STATE)

       This appeal having been heard and reserved for judgement, coming

on for pronouncement this day, the Court pronounced the following:

****************************************************
                           JUDGEMENT

Reserved on 16.06.2022 Pronounced on 20.12.2022

01. Appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (for short 'the Code') against the judgment dated 5.11.1998 passed by Second Additional Sessions Judge Dhar, Case No.364/1997, whereby the appellant has been convicted for the offence punishable under Section 304 (2) of I.P.C. and sentenced to undergo 07 years R.I with a fine of Rs.5,000/-, in default of payment of fine, to further undergo 500 days R.I. By acquitting the co-accused Muniya and Bhavliya from the charges under Section 302 and 323/34 of IPC.

02. The prosecution story, briefly stated, is that on the deceased Ganga Ram and Nanda is uncle's nephew. 8 days prior to the date of incident, Nanda has taken a box/Kothi from the appellant Burkiya for collecting maize. On 31.10.2017, Burkiya reached to the house of Nanda for taking the same back at 05PM in the evening, but Nanda has refused him to give the same and told him he will give the Kagniya/Kothi (container) to the appellant Burkiya on the next day. Aggrieved accused push the Kothi, the same were fall on the child of Nanda. When Nanda tried to calm him, the accused assaulted him by stone and wooden stick. In the meantime, Gangaram tried to intervene them but the accused Burkiya had also assulted on him trice by stone and also by wooden stick. During the scuffle between, Munsa, Jamnabai and Pappu reached on the spot and they are the eye-witness of the incident. It is also stated that Muniya and Bavliya have also assaulted Gangaram through stone and stick. But due to evening time, Gangaram and Nanda could not reported the matter to the police station and on the next day i.e. on 01.11.1997, FIR was lodged vide Ex.P/25. On the same day, Gangaram and Nanda were taken for treatment. X-ray was advised by the doctor and Gangaram was referred to District Hospital Dhar. Where, on 02.11.1997 at about 4:45PM, Gangaram was died. The police party, after following due procedure, arrested the accused person and registered the case under the provisions of Act. After due investigation, charge-sheet was filed against the appellant/accused persons.

03. Appellant alongwith the co-accused were charged for offence under Section Section 302 and 323/34 of 'the Act'. They abjured their guilt and took a plea that they have been falsely implicated in the present crime and prays for trial.

04. In support of the case of prosecution, the prosecution has examined as many as 11 witnesses namely Dr. Jaypal Singh (PW-1), Dr. B.R. Upadhyay (PW-2), Dr. S.K. Modi (PW-3), Ramesh (PW-4), Govind (PW-

5), Nanda (PW-6), Pappu (PW-7), Hirabai (PW-8), Jamnabai (PW-9), Durga Prasad Saxena (PW-10), Satnam Singh (PW-11).

05. Learned trial Court, on appreciation of the evidence adduced by the parties, pronounced the impugned judgment on 16.06.2022 and finally concluded the case and convicted the appellant for commission of the said offence under the provisions of Section 304-II of IPC while acquitted the co-accused persons as stated above.

06. Learned counsel for the appellant submits that the the appellant is innocent and the learned trial Court has convicted the appellant wrongly without considering the evidence available on record. Counsel for the appellant further submits that the appellant has not caused any fatal injury to the deceased because there is nothing on record to show that the deceased was died due to the injury caused by the appellant. It is further submitted that the co-accused persons having similar allegations against the appellant have already been acquitted by the learned Court below on the same set of facts. It is further submitted that there are material contradictions and omissions in the statements of the prosecution witnesses but the learned trial Court has erred in ignoring the same and in convicting the appellant. It is further submitted that the prosecution has made witnesses of one family who are allegedly to be the eye-witnesses and all of them are interested witnesses. It is further submitted that PW-6 Nanda, who is the eye-witness and he has started the dispute firstly and the appellant was bona fide for taking his article back. It is further submitted that the allegations of pelting stones and assaulting with Lathi are against the co-accused persons also, but there is no mentioning that who caused injuries to whom or on which part of the body. It is further submitted that the prosecution has failed to prove the place of incident and there is difference between the place of incident as per the prosecution case and the prosecution witnesses. It is further submitted that the learned Court below has failed to appreciate the prosecution evidence and has also in convicting the appellant. Hence, prays for acquittal of the appellants.

07. Learned Public Prosecutor has opposed the prayer. Inviting my attention towards the conclusive paragraphs of the impugned judgement, learned public prosecutor has submitted that huge contraband was recovered. It is further submitted that the appellant is not entitled for any lenient view of this Court due to recovery of commercial quantity from the appellant. Hence, prays for dismissal of the appeal.

08. I have considered rival contentions of the parties and have perused the record.

09. From the arguments of learned counsel for the

1. appellant it is clear that the appellant has challenged the conviction mainly on two ground; (i) there was no motive to cause of death Gangaram; (ii) Gangaram was the aggressor.

10. In regard to first submission, learned counsel for the appellant submits that no motive was there to cause death of appellant Gangaram because as per the prosecution story also, he has only assaulted by stone on his abdomen and there was no intention to cause injury to Gangaram.

11. In regard to second ground, learned counsel for the appellant submits that there was quarrel between the appellant and Nanda due to possession of container (Kagniya). The appellant was going back with the container, Gangaram reached on the spot and assaulted the appellant. Counsel for the appellant invites attention of this Court towards para no.61 of cross- examination of PW-6 Nanda in which he has stated that Gangaram assaulted the appellant asking why the appellant had capsized the container and taken the same. This witness also stated that Gangaram assaulted on him twice by stick.

12. It is settled law that where direct evidence is available, motive would not have been an important factor (See AIR 1994 SC 2585) Baldu @ Baldua vs. State of M.P. 2003 (3) MPHT 504 (DB) & Bahadur Singh vs. State of M.P. 2003 (4) MPLJ 243.

13. In Yunis @ Kariya etc. vs. State of M.P. [2003 (2) MPHT 194 SC, the Court has held that the prosecution has failed to prove motive. Failure to prove motive for crime in our view is of no consequence. The role of the accused persons in the crime stands clearly established. The ocular evidence is very clear and convincing. It is settled law that establishment of motive is not a sine qua non for proving the prosecution case.

14. It is pertinent to note that it is not the case of appellant that he caused injury to the deceased Gangaram in right of private defence of his person. No doubt right of defence is available for prosecution against apprehended unlawful aggression. It is a preventive and not a punitive right. [See: Raju @ Virender Singh vs. State of M.P. 2001 (2) MPHT 290].

15. The testimony of PW-6 Nanda, PW-7 Pappu, PW-8 Hirabai and PW- 9 Jamnabai are unchallenged. The information vide Ex.P/25 was given by the deceased Gangaram himself and in this information, he specifically stated that the appellant has assaulted him by stone and stick and caused injury to him which is established/proved by the medical evidence which was the cause of death of Gangaram.

16. So far as the submissions regarding prove of the place of incident, the learned trial Court has considered the same in para no.23 of the impugned judgment and found that only on the basis of this ground, prosecution story cannot be disbelieved because it is well established that the appellant has caused injury to the deceased Gangaram.

17. Hon'ble the Apex Court in the case of State vs. Sanjeev Nanda, AIR 2012 SC 3104 has held that to make out an offence punishable under Section 304 Part II of the Code, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death.

18. In the case in hand, however, the injury has been cased by the appellant to the deceased but the learned Court below has failed to consider that to make out an offence punishable under Section 304 Part II of the Code, the prosecution has to prove the death of the person in question and such death was caused by the act of the accused and that he knew that such act of his is likely to cause death, the appellant was on the spot having some scuffle with the co-injured Nanda, deceased came on the spot and having some quarrel with the appellant, so the act was committed by the appellant in the heated spur of moment, therefore, the provisions of Section 304 Part II of IPC shall not apply in the given facts and circumstances of this case.

19. Therefore, in view of the aforesaid discussion and the law laid down by Hon'ble the Apex Court in the case of State vs. Sanjeev Nanda (supra), in the considered opinion of this Court, the appeal is liable to be and is hereby partly allowed looking to the nature of unintentional injuries so caused by the appellant, the appellant is liable to be and is hereby convicted for the offence punishable under Section 325 of IPC by sentencing him to the period already undergone.

20. The appellant has remained in jail since 09.11.1997 to 01.04.1998, 05.11.1998 to 06.01.1999 and now, he is in jail since 19.01.2022 till now i.e. he has already under for the sentence of approximately one year and four months.

21. Hence, the appeal is partly allowed and the judgment so far as the conviction part is concerned, is confirmed and is modified to the extent of sentence. The appellant is convicted under Section 325 of IPC and sentenced to the period already undergone,

22. He be set at liberty forthwith if not required in jail in any case. His bail bond, if any, shall stand discharged.

23. The judgment regarding disposal of the seized property stands confirmed.

24. A copy of this order be sent the learned Court below concerned for information. Record be sent back immediately.

25. Certified copy, as per rules.

(Rajendra Kumar (Verma)) Judge amit Digitally signed by AMIT KUMAR Date: 2022.12.20 19:54:27 +05'30'