Mohan vs The State Of Madhya Pradesh
2022 Latest Caselaw 1605 MP

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 IN THE HIGH COURT OF MADHYA PRADESH AT INDORE
                              BEFORE
               HON'BLE SHRI JUSTICE VIVEK RUSIA
                                 &
              HON'BLE SHRI JUSTICE PRANAY VERMA

              CRIMINAL APPEAL No. 1692 of 2014

 Between:-
 MOHAN S/O NURJI , AGED ABOUT 42 YEARS,
 OCCUPATION: AGRI. VILLAGE MORVA P.S.
 CHENPUR (MADHYA PRADESH)
                                                    .....APPELLANT
 (BY SHRI VIVEK SINGH, LEARNED COUNSEL FOR THE APPELLANT)

 AND

 THE STATE OF MADHYA PRADESH STATION HOUSE
 OFFICER THRU. P.S. CHENPUR (MADHYA PRADESH)
                                                 .....RESPONDENTS
 (BY SHRI SUDHANSHU VYAS, LEARNED COUNSEL FOR THE
 RESPONDENT/STATE)
JUSTICE VIVEK RUSIA passed the following:

                      JUDGMENT

( Delivered on 04.02.2022) PER VIVEK RUSIA, J: -

This Criminal Appeal is taken up through Video conferencing and heard finally with the consent of parties instead of hearing on the application for suspension of sentence.

Appellant has preferred this appeal under Section 374 of the Code of Criminal Procedure, 1973 (in short "Cr.P.C.") against the judgment of conviction dated 29.10.2014, passed by III Additional Sessions Judge (West Nimar), M.P. in Sessions Trial No.233/2014, by which the appellant have been convicted for an offence under Sections 302 of Indian Penal Code (for short "IPC") and sentenced to undergo life imprisonment with fine of Rs.5000/- with default stipulation.

(2) The case of the prosecution, in brief, is as follows: -

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(a) On 19.05.2014, at about 05:40 AM, Dharam Singh Son of Hama gave information at Police Station Chainpur that partition dispute of his younger brother Jhetra is going on for so many days and due to which on 18.05.2014, near about 11:00 hours at road towards Patel Faliya, accused Mohan infront of his house caused the grievous injury on the head of deceased by means of stone. The said information was recorded at merg No.30/14 (Ex.P/1) and Police reached the spot and found the dead body of Jhetra . Five witnesses were called Panchayat Nama Ex. P/4 was prepared and thereafter Spot Map Ex. P/5 was also prepared. Dead body was sent to the Civil Hospital Jhiranya for postmortem. Vide Ex. P/13, postmortem report was given and the dead body was handed over to Dharam Singh (Brother of the deceased) for cremation. An FIR NO.95/14 Ex. P/2 was registered on 19.05.2014. Blood soaked soil, plain soil, stone containing bloodstain, Kharaliya (wooden stick) were seized by Ex.P/6. Accused Mohan was arrested vide Ex. P/10. Statement of witnesses was recorded under Section 161 of Cr.P.C. The seized articles were sent to FSL Rau vide Ex. P.16, from where report Ex.P/15 was received. Charge-sheet was filed against the appellant before the Judicial Magistrate First Class. The trial was committed to the Sessions Court.

(3) Charges under Section 302 of I.P.C. was framed against the appellant, which he denied and pleaded that he has falsely been implicated in this case. The prosecution has examined as many as 13 witnesses from PW-1 to PW-13 and got marked 17 documents as Ex.P/1 to Ex. P/17. In defence, the appellant did not examine any witness.

(4) After evaluating the evidence that came on record, the learned Third Additional Sessions Judge has convicted the appellant for the offence punishable under Section 302 of I.P.C.

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and sentenced him to undergo life imprisonment. Hence, this appeal before this Court.

(5) The appellant has filed an application for suspension of his jail sentence but all the applications have been rejected. The appellant is in custody since 20.05.2014 till today.

(6) After attempting to establish that the appellant is innocent and he has not committed any offence, learned counsel for the appellant submits that even if it is held that the deceased died due to the injury caused by the appellant by means of a stone and death is homicidal but it does not amount murder because the stone was not thrown with intention of killing him, therefore, the offence would not travel more than 304 Part I and Part II of I.P.C. and appellant is liable to undergo the term of the sentence which he has already undergone. Hence, the appeal may kindly be disposed of by converting the sentence from 302 of I.P.C. to 304 Part I and Part II of I.P.C and jail sentence may kindly be reduced from life to the period already undergone.

(7) Learned Government Advocate opposes the prayer made by the appellant by submitting that the appellant has pelted stone and assaulted by means of Kharaliya (small wooden stick) due to which deceased died. Hence, learned Additional Sessions Judge has rightly convicted the appellant for the offence punishable under Section 302 of I.P.C. thus no interference is warranted.

We have heard the learned counsel for the parties at length and perused the record of the case

(8) The Prosecution has examined Jasabai (PW-1), who is the wife of the deceased. According to her when she was inside the home. She heard the screaming voice of her husband. She alongwith her daughter came outside the home and saw that the

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appellant was assaulting her husband by Kharaliya (Wooden stick) and stone. Her husband sustained the injury on his head. The dispute arose because the appellant was objecting to the mutation of the name of her husband in the revenue record. After causing the injury, he ran by a tractor. Her husband was bleeding from the head. He sustained injuries on various parts of the body apart from the head. In cross-examination, she admits that before the incident, there was no dispute between the appellant and her husband. The accused belongs to Gayatri Family and has a tractor he is a pure vegetarian and does not drink liquor. In para 26 of cross-examination, she stated that when she reached, her husband had already dead.

(9) The prosecution has examined a daughter of the deceased i.e. Pooja as PW-2, who was minor at the time of deposition. She has not alleged that this appellant has assaulted her father. She only saw her father lying dead and bleeding from the head. Another daughter Durga has been examined as PW-3, who has seen this appellant assaulting her father. According to her, there were three stones were lying. Hence there are contradictions in the statements of between two daughters of the deceased . Dharam Singh (PW-4), Shantilal (PW-5) and Akaram (PW-6) have deposed on the basis of the information given them by PW-1 to PW-3. Kailashchandra (PW-7) prepared a spot map. According to Bhangi (PW-8) after committing the crime, this appellant had gone to the house and deposed that the appellant has killed the deceased. In cross-examination, he has admitted he contested the election of Sarpanch against this appellant and lost the election. Likewise, Bheekla (PW-9), Makniya (PW-10) and Omprakash (PW-11) have supported the case of the prosecution to the extent that they saw the dead body of the deceased lying there and

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thereafter police came there.

(10) Dr. R.S. Kanar (PW-12) conducted the postmortem of the deceased and according to him, there was a big wound on the head of the deceased. The bone of the back side was suppressed and fractured and the brain was coming out. Apart from that minor abrasions were there. The death took place due to excess bleeding. In cross-examination, he has admitted that such types of injuries are caused in motor accidental cases. If any person while driving a motorcycle falls down, then such types of injuries can be received.

(11) As per the spot map, the dead body was lying on road towards the agriculture field of Patel. The house of this appellant is just infront of the road. In the spot map as well as Naksa Panchanama, there is no mention about the stones ,but as per seizure memo Ex. P/6 one cement concrete weight 1 kg containing blood stain and Khareliya with length 3 feet 10 inches with bloodstain were found. No motorcycle was found on the spot to establish the road accident. As per FSL report human blood both the stone and Khareliya. Jasabai (PW-1) in para 14 in cross- examination has stated that there was no light where the deceased was lying. The motorcycle was taken by Shantilal on the instruction of the police. The tractor of the appellant was also there. The distance between her house and the appellant is only 500 meters. There is a contradiction in the statement of PW-1, PW-2 and PW-3. The incident took place in the night. There is no light on the spot where PW-1, PW-2 and PW-3 saw the appellant assaulting the deceased by means of stone and Khareliya. Seizure of stone and Khareliya has not been established beyond doubt. The Tractor was there when they reached the spot. Thereafter, motorcycle was removed on the instruction of the police. Other

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witnesses have stated that before this incident there was no dispute between appellant and deceased.

(12) So far as motive is concerned, the allegation is that because of the partition dispute, the appellant has committed the murder but no other details are given by the witnesses. There is no common interest in any of the properties in which the partition dispute is pending. As per PW-1, the partition had already been taken place between brothers of the deceased and the name of all the brothers have been mutated in the revenue record. PW-1 admits that before this incident there was no dispute between the appellant and her husband, therefore the actual motive behind this incident has not been established by the prosecution. The appellant has no criminal background. There is no motive to murder the deceased.

(13) Hence in view of the above discussion, we are of the opinion that the appellant is entitled to the benefits of the doubt. the criminal appeal is allowed. The judgment of conviction dated 29.10.2014, passed by III Additional Sessions Judge (West Nimar), M.P. in Sessions Trial No.233/2014 is hereby set aside. the appellant be released from jail if he is not required in any other crime.

The record be sent back to the trial court with a copy of this judgment

( VIVEK RUSIA ) ( PRANAY VERMA ) JUDGE JUDGE

praveen/-

PRAVEEN NAYAK 2022.02.04 17:38:23 +05'30'