Madhya Pradesh High Court
Prem Narayan Dubey @ Papu Dubey vs The State Of Madhya Pradesh on 13 January, 2022
Author: Sujoy Paul
1
The High Court Of Madhya Pradesh
CRA No. 2313 of 2021
(PREM NARAYAN DUBEY @ PAPU DUBEY Vs THE STATE OF MADHYA PRADESH)
Jabalpur, Dated : 13-01-2022
Heard through Video Conferencing.
Shri Siddhant Kochar, Advocate for the appellant.
Shri S.K. Malvi, Panel Lawyer for the respondent/State.
Shri Raunak Yadav, Advocate for the Objector.
Heard on I.A. No.5470/2021, which is an application for suspension of
sentence and grant of bail on behalf of the appellant.
Appellant who has been convicted vide judgment dated 12.03.2021
passed by Fourth Additional Sessions Judge, Tikamgarh (M.P.) in
S.T.No.101/2017 for commission of offence punishable under Section 302 of
IPC and Sections 25(1)A and 27 of Arms Act and sentenced to undergo for
life imprisonment with fine of Rs.5000/- and 3 years rigorous imprisonment
with fine of Rs.1000/- with usual default stipulation.
Learned counsel for the appellant by taking this Court to para 75 of the
impugned judgment submits that it is clear that there was a free fight between
the appellant and other side. In a case of free fight section 149 of IPC is not
attracted. The reliance is placed on para 119 of the impugned judgment. Shri
Kochar also placed reliance on para 113 of the impugned judgment wherein a
finding is recorded that appellant's family was also injured. Lastly by placing
reliance on para 119 of the judgment learned counsel for the appellant submits
that the Court below in no uncertain terms made it clear that the appellant
used his right of private defence. The appellant was held guilty only because
he used the said right of defence in a disproportionate manner. By placing
reliance on 2010(2) SCC 333 Darshan Singh Vs. State of Punjab and
another, it is argued that by no stretch of imagination the appellant could
have been held guilty for committing offence under Section 302 of IPC, but,
more-so, when all other accused persons have been acquitted.
Shri Malvi, learned Panel Lawyer opposed the said prayer and submits
that there was no occasion for the appellant to use a fire arm to the extent the
deceased could have died.
Shri Raunak Yadav, learned counsel for the Objector placed reliance
on the statements of two eye witnesses namely Jagu Lodhi (PW-2) and
Shyma Bai (PW-3). It is submitted that both the said witnesses have deposed
against the present appellant. The bullet injury was found by doctor (PW-6).
FSL report (P-37) also substantiate the same. Hence I.A. be dismissed.
We have heard the learned counsel for the parties and perused the
record and objection.
In Darshan Singh (supra) the Apex Court recorded as under:-
"57. In Buta Singh Vs. State of Punjab, the Court noted that:
"10.......a person who is apprehending death of bodily
injury cannot weigh in golden scales on the spur of the
moment and in the heat (of circumstances), the number
of injuries required to disarm the assailants who were
armed with weapons. In moments of excitement and
disturbed mental equilibrium it is often difficult to expect
the parties to preserve composure and use (exactly) only
so much force in retaliation..... commensurate with the
danger apprehended to (him) where assault is imminent
by use of force, it would be lawful to repel the force in
self-defence and the right of private defence commences
as soon as the thereat becomes so imminent. Such
situations have to be pragmatically viewed and not with
high powered spectacles or microscopes to detect slight
or even marginal overstepping. Due weightage has to be
given to, and hypertechnical approach has to be avoided
in considering what happens on the spur of the moment
on the spot and keeping in view normal human reaction
and conduct, where self-preservation is the paramount
consideration. But, if the fact situation shows that in the
guise of self-preservation, what really has been done is to
assault the original aggressor, even after the cause of
reasonable apprehension has disappeared, the plea of the
right of private defence can legitimately be negatived, The
Court dealing with the plea has to weigh the material to
conclude whether the plea is acceptable. It is essentially,
(as noted above) a finding of fact."
(Emphasis supplied)
Prima facie, we find substance in the arguments of Shri Kochar that in
the backdrop incident had taken place, it was difficult to expect from an
accused to use such degree of resistance with accuracy and precession. Thus
without giving any conclusive opinion on the merits of the case, we deem it
proper to suspend the remaining jail sentence of the appellant taking into
account the findings given by the trial Court in para 119 of the impugned
judgment. Resultantly, I.A.No.5470/2021 is allowed and the remaining jail
sentence of the appellant- Prem Narayan Dubey is hereby suspended and
it is directed that the appellant be released on bail on his furnishing a personal
bond for a sum of Rs.50,000/- (Rupees Fifty Thousand only) with one
solvent surety of the like amount to the satisfaction of the trial Court with a
further direction to appear before the trial Court Tikamgarh on 22.06.2022
and also on such other dates, as may be fixed by the trial Court in this regard
during the pendency of this appeal.
Certified copy as per rules.
(SUJOY PAUL) (ARUN KUMAR SHARMA)
JUDGE JUDGE
Vin**
Signature Not Verified
SAN
Digitally signed by VINOD SHARMA
Date: 2022.01.14 11:43:44 IST
