Gopal vs The State Of Madhya Pradesh
2022 Latest Caselaw 3985 MP

                                        1                 Cr.A.No.1890/2018

         THE HIGH COURT OF MADHYA PRADESH
                 BENCH AT GWALIOR

                        (DIVISION BENCH)
                    Criminal Appeal No.1890/2018

Gopal                                                         ..... Appellant
S/o Shri Champalal
Aged about 49 years
R/o village Palkatori, Police Station Isagarh,
District Ashok Nagar (M.P.)

                                    Versus
State of M.P.                                               ..... Respondent
thr. Police Station Isagarh,
District Ashoknagar (M.P.)
--------------------------------------------------------------------------------
CORAM
                      Hon. Mr. Justice Rohit Arya
               Hon. Mr. Justice Milind Ramesh Phadke
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Presence:
Shri S.K.S. Jadoun, learned counsel for the appellant.
Shri Rajesh Shukla, learned Deputy Advocate General for the
respondent/State.


                             JUDGMENT

(Delivered on this 23rd day of March, 2022)

Per Rohit Arya, J.:

This appeal under Section 374 (2) Cr.P.C. is directed against

the judgment of conviction and order of sentence dated

06/01/2018 passed by Second Additional Sessions Judge,

Ashoknagar (M.P.) in Sessions Trial No.100/2015; whereby,

appellant Gopal stands convicted for the offence punishable under

Section 302 of IPC and sentenced to undergo imprisonment for

life with a fine of Rs.1,000/-, in default to suffer R.I. for one

month.

2. As per prosecution story, a ward boy namely Sunil working

at Community Health Center, Isagarh intimated Police Station

Isagarh at 12:25 in the night about the death of deceased-

Harinarayan who had been brought dead to the Community Health

Center, Isagarh. The marg intimation was registered at number

36/2015 and thereafter, for further investigation, the police team

reached the Community Health Center, Isagarh. It was noticed that

blood was oozing out from the mouth and neck of deceased

Harinarayan. Besides there was a serious deep lacerated wound on

the private part of the deceased wherefrom blood was oozing out.

2.1 During Marg enquiry, from the statements of witnesses

Suresh Bairagi, Kailash Kalar & Parmal, it was revealed that the

present appellant had caused homicidal death of deceased Pappu

@ Harinarayan and accordingly Crime No.265/15 was registered

at Police Station Isagarh, District-Ashoknagar (M.P.) for the

offence punishable under Section 302 of IPC. During

investigation, at the instance of the complainant Ghoomansingh,

spot-map (Ex.P-2) was prepared. Blood-stained earth, plain earth,

two buttons and two blood-stained stones were seized from the

spot vide seizure-memo (Ex.P-3). Clothes of appellant and

deceased were seized vide seizure memos Ex.P/9 and Ex.P/10

respectively and the appellant was apprehended on 17/6/15 vide

arrest-memo (Ex.P-13).

2.2 Post-mortem examination of the deceased was conducted by

Doctor B.S. Jamhoria (PW/11) who noted the following injuries in

post-mortem report (Ex.P/8):-

(1). Multiple abrasions with contusions present on collar region of left side of chest of size 8 X 3½ c.m. area, irregular shape. (2). Contusion of size 3 X 2 c.m. area at right side of neck.

(3). Abrasion with contusion on left hypochondrium region of size 6 X 4 c.m. (4). Lacerated wound 3 x 1½ c.m.x bone deep at right inguinal region. Clotted blood is found.

(5). Lacerated wound 4 x 3 c.m. x bone deep below left symphysis pubic upto base of penis.

(6). Abrasion with contusion at right elbow region.

The doctor opined that all injuries were caused by hard and

blunt object and were ante mortem in nature because inflammatory

signs were present. Death was caused due to shock as a result of

rupture of vital organs caused by hard and blunt object. Nature of

death was homicidal.

2.3 After completion of the investigation, charge-sheet against

the appellant was filed in the Court of JMFC, Ashoknagar who

committed the case to the Court of Sessions for trial.

3. On being charged with the offence punishable under Section

302 IPC, the appellant abjured the guilt. In the examination under

Section 313 of the Code of Criminal Procedure, he pleaded false

implication.

4. During trial, eyewitnesses Suresh Bairagi (PW/8) and

Santram (PW/16) amongst others were examined. Their testimony

supports the case of the prosecution and has withstood cross-

examination. However, a glaring fact has emerged, as discussed in

Para-25 of the judgment, that the eyewitness Suresh Bairagi

(PW/8) in his statement recorded under Section 161 Cr.P.C. has

stated that while he was passing through the place of incident in

his tractor after some distance, the tyre of the tractor got punctured

and therefore, he was standing there. During this period, the

present appellant is alleged to have passed through there on his

cycle who was though tried to be stopped but he did not stop

saying that he had killed the deceased and ran away therefrom,

whereas in his deposition before the Court he has stated to have

witnessed the incident at the time of its occurrence. Hence, there is

a glaring discrepancy with no explanation in his deposition

recorded before the Court. Albeit, the testimony of another

eyewitness Santram (PW/16) withstood the cross-examination and

is in conformity with the prosecution case.

5. At this stage, it is relevant to mention that though the police

has seized blood-stained earth, plain earth, two buttons, blood-

stained shirt of the accused and blood-stained stones from the

scene of crime vide seizure-memo (Ex.P-3) and also sent the same

to FSL for chemical analysis. The FSL report only in respect of

buttons seized from the spot and buttons of shirt of appellant has

been received, but the same has not been proved by the

prosecution. There is no FSL report in respect of other articles

such as blood stained stones, blood stained earth, simple earth etc.,

as is well discussed in Para-24 of the impugned judgment.

However, the trial Court has convicted the appellant and sentenced

as aforesaid based upon the evidence of the eyewitnesses Suresh

Bairagi (PW/8) & Santram, (PW/16), of course with statement of

the appellant under Section 315 Cr.P.C. wherein he has stated that

deceased had sent him to buy liquor from the liqour shop and

while he was away, he had sexually abused his wife. Therefore,

having seen the incident, he was under sudden and grave

provocation and therefore, hit the deceased with stone causing

death.

6. Shri S.K.S. Jadoun, learned counsel for appellant, while

taking exception to the impugned judgment submits that for want

of forensic science report of seized items as discussed in Para-24

and the apparent discrepancies in the statement of eyewitnesses

Suresh Bairagi (PW/8) before the Court vis-a-vis his statement

under Section 161 Cr.P.C before the Police, the conviction of

appellant under Section 302 IPC can not be said to be based on

conclusive evidence. In fact, for want of availability of clinching

evidence related to seized items, considerably high-degree of

doubt is raised about the complicity of the appellant in the instant

crime. It is submitted that offence under Section 302 is a serious

offence and required to be proved beyond reasonable doubt based

on such conclusive evidence whereupon except conviction under

Section 302 IPC, the possibility of conviction under any other

provision is ruled out. Such is not the case in hand. Hence, the

findings of the trial court based on misappreciation of evidence on

record has led to an erroneous conclusion convicting the appellant

under Section 302 IPC.

6.1 Learned counsel for appellant further submits that even

otherwise accepting the case of the prosecution as it is, the

deceased is alleged to have been under heavy intoxication. The

alleged incident has occurred in the state of sudden and grave

provocation with no knowledge and intention to cause death of the

deceased. Appellant has already undergone sentence for about 7

years. Appellant has no criminal antecedents. He is a poor person.

Due to long jail incarceration, his family is in penury and at the

verge of starvation. It is a case of culpable homicide not

amounting to murder and at the most appellant may be convicted

for offence under Section 304 part-II as there was no intention to

cause murder of the deceased.

7. Per contra, Shri Shukla, learned Deputy Advocate General

for respondent/State while supporting the impugned judgment

submits that the deposition of eyewitnesses Suresh Bairagi (PW/8)

and Santram (PW/16) were sufficient to conclude about the factum

of occurrence of the incident and involvement of the appellant in

commission of the crime of causing homicidal death of the

deceased. Only for the reason that the forensic science report as

regards stones, blood-stained clothes of appellant, blood stained

and plain earth seized from the spot was not produced and the FSL

report in respect of buttons seized from the spot and those

recovered from shirt of appellant, though produced but neither

proved nor exhibited; shall not be sufficient to acquit the

appellant. The Sessions Court upon critical evaluation of the entire

evidence placed on record has recorded impregnable findings not

open for correction in the obtaining facts and circumstances.

8. Upon hearing learned counsel for the parties, perusal of the

evidence on record and impugned judgment, indeed, the factum of

occurrence of incident has been proved beyond reasonable doubt.

The deceased also died homicidal death due to injuries suffered by

him on his neck, private part and chest wherefrom blood was

found to be oozing out. The post-mortem report (Ex.P/8) also

corroborates that the injuries were caused by hard and blunt object

(stone). However, there is apparent and relevant discrepancies in

the statements of eyewitnesses Suresh Bairagi (PW/8) recorded

during investigation under Section 161 Cr.P.c. and deposition

before the Court as discussed above. Besides, Santram (PW/16) is

also cited as an eye-witness. His deposition suggests that he was

sitting in the same Tractor with Suresh Bairagi (PW/8) while they

are alleged to have seen the incident. Hence, his eye-witness

account is not on any better footing than that of Suresh Bairagi

(PW/8). As such, the ocular evidence qualitatively is not of a

degree required for establishing the offence of murder and

conviction under Section 302 of IPC. Nevertheless, the evidence

brought on record can not be altogether discarded, as the statement

of appellant himself under Section 315 Cr.P.C. suggests the

complicity of the appellant in the crime.

9. At this stage, it is relevant to mention that there is no

evidence on record to suggest that there was a premeditation of

mind or existence of element of mens rea on the part of the

appellant which led to commission of the instant crime. It is also

material that there was no evidence to conclude that the aforesaid

incident occurred with an intention to cause death of the deceased.

In similar circumstances, the Apex Court in the case of Gurmukh

Singh Vs. State of Haryana reported in (2009) 15 SCC 635 has

held thus:-

23. These are some factors which are required to be taken into consideration before awarding appropriate sentence to the accused. These factors are only illustrative in character and not exhaustive. Each case has to be seen from its special perspective. The relevant factors are as under:

a) Motive or previous enmity;

b) Whether the incident had taken place on the spur of the moment;

c) The intention/knowledge of the accused while inflicting the blow or injury;

d) Whether the death ensued instantaneously or the victim died after several days;

e) The gravity, dimension and nature of injury;

f) The age and general health condition of the accused;

g) Whether the injury was caused without pre- meditation in a sudden fight;

h) The nature and size of weapon used for inflicting the injury and the force with which the blow was inflicted;

i) The criminal background and adverse history of the accused;

j) Whether the injury inflicted was not sufficient in the ordinary course of nature to cause death but the death was because of shock;

k) Number of other criminal cases pending against the accused;

l) Incident occurred within the family members or close relations;

m) The conduct and behaviour of the accused after the incident. Whether the accused had taken the injured/the deceased to the hospital immediately to ensure that he/she gets proper medical treatment?

These are some of the factors which can be taken into consideration while granting an appropriate sentence to the accused.

(Emphasis supplied)

Therefore, regard being had to the totality of facts and

circumstances i.e. there was no motive or previous animosity; the

incident occurred on the spur of moment; there was no intention to

cause death of deceased while the accused caused injuries by

means of stones; the injuries were caused without premeditation of

mind due to sudden provocation and appellant has no criminal

antecedents and also bearing in mind the ratio laid down by the

Apex Court in Gurumukh Singh (Supra), we are of the

considered view that appellant is guilty of offence punishable

under Section 304 Part-II IPC and not under Section 302 IPC.

10. Consequently, the impugned judgment is modified

maintaining the findings of the trial court. The appellant is held to

have committed an offence of 304 Part-II IPC.

11. At this stage, Shri S.K.S. Jadoun, learned counsel for

appellant submits that appellant is a poor person aged about 49

years and has already suffered incarceration for about 7 years. He

has no criminal antecedents. Therefore, with the sentence

undergone, the appeal may be allowed in part.

12. The prayer is though opposed by learned Public Prosecutor for

State but regard being had to the facts and circumstances of the

case, the same is acceded to.

13. Consequently, this Criminal appeal is allowed in part. The

conviction of the sole appellant Gopal under Section 302 IPC

awarded by the trial Court stands converted into one under Section

304 Part II and the appellant is sentenced to the period already

undergone by him in jail. However, the fine sentence with

corresponding default stipulation, as awarded by the trial Court, is

affirmed.

14. With the aforesaid, the present Criminal Appeal stands

allowed in part and is hereby disposed of finally.

15. The appellant is reported to be in jail. Subject to depositing

the fine amount (if not already deposited), he be released

forthwith, if not required in any other case.

16. The Registry is directed to send a copy of this judgment

alongwith the original record immediately to the trial Court for

necessary compliance.

                     (Rohit Arya)                     (Milind Ramesh Phadke)
                        Judge                                   Judge
                    (23/03/2022)                            (23/03/2022)

(Dubey)


 SUNEEL
 DUBEY
 2022.03.24
 18:46:07
 +05'30'