Kailash vs The State Of Madhya Pradesh
2022 Latest Caselaw 9976 MP

                                     1
             IN THE HIGH COURT OF MADHYA PRADESH
                           AT INDORE
                                BEFORE
                   HON'BLE SHRI JUSTICE VIVEK RUSIA
                                   &
             HON'BLE SHRI JUSTICE AMAR NATH (KESHARWANI)
                              ON THE 20th OF JULY, 2022

                    CRIMINAL APPEAL No. 366 of 2012

         Between:-
         KAILASH S/O PEERULAL , AGED ABOUT 35
         YE A R S , OCCUPATION: VEGETABLE SELLOR
         PANBIHAR       TEH.GHATIYA   DISTT.UJJAIN
         (MADHYA PRADESH)

                                                                 .....APPELLANT
         (SHRI RAKESH VYAS, ADVOCATE FOR THE APPELLANT)

         AND

         THE STATE OF MADHYA PRADESH GOVT.
         THRU.P.S.MADHAV NAGAR UJJAIN (MADHYA
         PRADESH)

                                                             .....RESPONDENTS
         (SHRI BHASKAR AGRAWAL, GOVT. ADVOCATE FOR THE
         RESPONDENT/STATE)

      This appeal coming on for orders this day, JUSTICE VIVEK RUSIA
passed the following:
                                 JUDGMENT

Today this appeal is listed for orders on the application for suspension of sentence, however, looking to the period of incarceration of the appellant and the fact that the appeal is pending since 2012 the counsel for the appellant has argued this appeal finally.

As per prosecution story, on 21.03.2011 near about 6.30 p.m both appellant and deceased Kali Lalawat, being vegetable retailers, were selling their vegetables in the local market. There was a previous enmity going on between

them also because of professional rivalry. On the date of the incident, the appellant started a dispute with deceased Kali and thereafter he assaulted him by means of Darata repeatedly till he died. After committing his murder, the appellant surrendered before the police station Madhav Nagar on 21.03.2011 at 08.40 p.m along with the arm which was used for committing the murder. The police took him into custody by registering an FIR for the offence punishable under section 302 of the IPC. Thereafter the police reached the spot, took photographs and after investigation filed the charge sheet before the Court.

During trial the appellant denied the charge and pleaded for trial. To prove the charge the prosecution has examined eye witnesses PW/1 Kamal,

PW/2 Neelu & PW/3 Ajay Rawat who are vegetable sellers and who were present on the spot at the time of the incident. They deposed that they witnessed the appellant causing injuries to the deceased by means of Darata till he became sure that the deceased is died. As per the autopsy report and the statement of the doctor B.B.Purohit who performed postmortem of dead body of the deceased there were 13 stabbed deep wounds on various parts of body which were sufficient to cause death of the deceased, therefore, undisputedly the death of Kali was homicidal in nature. After the incident the police has recovered the Darata which was used for committing the murder and blood stained clothes and soil and sent for forensic examination. As per the FSL report Ex.P/37 human blood was found on the seized articles. After evaluating the aforesaid evidence brought on record, learned trial Court has convicted the appellant for the offence punishable under section 302 of the IPC and sentenced to undergo life imprisonment.

At the outset learned counsel for the appellant did not challenge the conviction of the appellant, however, prays for leniency in the matter of

sentence. He submits that both the appellant and the deceased were vegetable sellers and the dispute arose between them all of a sudden because of professional rivalry and out of anger the appellant assaulted the deceased, therefore, the offence against the appellant would not travel beyond the offence punishable under section 304 Part-I of the IPC for which he has already undergone more than 11 years of jail sentence. He was a poor vegetable seller and there is no one in his family to look after his children, hence prays for converting the offence under section 302 IPC to offence under section 304 Part-I of the IPC.

Learned Govt. Advocate appearing for the respondent/State opposes the prayer by submitting that looking to the conduct of the appellant no leniency is liable to be shown to the appellant and no interference is called for in the impugned judgment.

Having heard learned counsel for the parties and on perusal of the record, we are fully satisfied that the trial Court has not committed any illegality or error while convicting and sentencing the appellant on the basis of the evidence came on record. We have seen the photographs of the dead body as well as the autopsy report which clearly show that the appellant has caused as many as 13 stabbed injuries by means of Darata till the deceased is died on the spot, therefore, the appellant has acted in a cruel manner. Had this been a case of one

or two blows by Darata we would have held him guilty under section 304 Part-I IPC but the appellant caused 13 stabbed wounds by means of Darata to the deceased till he died, therefore, looking to the overt act of the appellant and that too in a cruel manner no case for converting the offence from under section 302 IPC to offence under section 304 Part-I IPC is made out. The findings

recorded by the trial Court are based on proper appreciation of evidence which do not call for any interference by this Court. Accordingly, the conviction and sentence of the appellant passed by the trial Court is hereby affirmed.

The appeal is dismissed.

      (VIVEK RUSIA)                            (AMAR NATH (KESHARWANI))
         JUDGE                                          JUDGE
hk/


           Digitally signed by HARI
           KUMAR C G NAIR
           Date: 2022.07.21 18:30:11
           +05'30'