Madhya Pradesh High Court
Dilip Singh vs The State Of M.P on 11 October, 2022
Author: Sujoy Paul
1
IN THE HIGH COURT OF MADHYA PRADESH, JABALPUR
BEFORE
SHRI JUSTICE SUJOY PAUL
&
SHRI JUSTICE PRAKASH CHANDRA GUPTA
ON THE 13th OF OCTOBER, 2022
CRIMINA APPEAL No. 660 OF 1995
Between:-
DILIPSINGH S/O OF
RAJARAM RATHOR, AGED
30 YEARS, R/O GEEDHA, PS
DINDORI, DISTRICT-
MANDLA (M.P.)
......APPELLANT
(BY SHRI SIDDHARTH DATT, ADVOCATE)
AND
THE STATE OF MADHYA
PRADESH
.............RESPONDENT
(BY SHRI YOGESH DHANDE, LEARNED GOVERNMENT
ADVOCATE FOR THE RESPONDENT/STATE).
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This criminal appeal coming on for hearing this day, Shri
Justice Sujoy Paul, Judge passed the following :
JUDGMENT
This appeal is filed under Section 374(2) of Cr.P.C. for
questioning the judgment dated 19.04.1995 passed in the Sessions
Case No.127/92 by learned Additional Sessions Judge, Dindori,
whereby the appellant was convicted for committing offence under
Section 302 and Section 323 of the IPC and sentenced to undergo
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AGRAWAL
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life imprisonment for committing offence under Section 302 of IPC
whereas, for other offence Rs.500/- is imposed as fine.
2. In short, the case of the prosecution is that on 07.07.1992 at
around 12 noon, the appellant and co-accused Rajaram were shifting
certain stones from boundary of the agricultural field. Govardhan
Singh (PW-1) asked them not to undertake the aforesaid excercise of
shifting the stones. In turn, Rajaram assaulted Govardhan by means
of stones. The present appellant assaulted him by means of a
'Penari'. Govardhan Singh sustained injuries on his head and on the
left side of the back. His brother Udal made an attempt to save
Govardhan. The accused persons assaulted Udal as well. Govardhan
approached his father Heeraram and brother Murat Singh and
informed them about the incident of assault. In turn, his brother
Murat and father Heeraram reached the scene of crime and asked the
present appellant and Rajaram as to why they assaulted Govardhan
Singh.
3. In turn, they assaulted Heeraram. Dilip Singh assaulted
Heeraram on his head by means of 'Penari'. Heeraram fell down and
became unconscious. He was taken back to his home. Doctor
namely Shankar was called from Dindori who treated Heeraram but
Heeraram died in the morning of 08.07.1992. Immediately
thereafter, the FIR was lodged by Govardhan in concerned Police
Station. During investigation, the appellant was arrested. In turn, the
matter reached to the Sessions Court. The appellant abjured his
guilt.
4. It is admitted between the parties that present appellant and
the deceased are close relatives. The appellant is real nephew of the
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deceased. It is also not in dispute that there is no previous history of
any dispute or animosity between the parties. The incident had taken
place suddenly on 07.07.1992.
5. The Court below after recording the evidence came to hold
that the death is homicidal in nature.
6. Considering the gravity of assault, the Court below opined
that appellant is guilty of committing offence under Section 302 of
the IPC for assaulting Govardhan and Murat Singh. The appellant
was also convicted under Section 323 of IPC. During the trial, co-
accused Rajaram died and therefore, present appellant alone was
convicted and directed to undergo the aforesaid sentence.
7. Shri Siddharth Datt, learned counsel for the appellant by
taking this court to the prosecution story submits that indisputably
there is no iota of previous animosity between the parties. The
incident had taken place suddenly. A small quarrel took a dirty
shape. The Court below in Para-14 of the impugned judgment
clearly held that there was no motive behind the attack/incident.
8. The prosecution did not produce Udal, son of the deceased as
prosecution witness. This creates a doubt about the prosecution
story. By taking this court to the statement of Govardhan (PW-1), it
is argued that this witness is not an eye-witness to the incident. He is
a hearsay witness. On the basis of his statement, the appellant
cannot be held guilty for committing offence under Section 302 of
IPC. Govardhan (PW-1) gathered information from Murat (PW-3).
By placing reliance on the statement of Murat (PW-3), Shri Datt
argued that as per his statement also the necessary ingredients for
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attracting Section 302 of IPC could not be established. The 'Penari'
is an agricultural instrument used to poke the animal so that it works
properly. Thus, no deadly weapon is used by the appellant.
9. In absence of any motive and enmity, the Supreme Court in
Mirza Hidayatullah Baig v. State of Maharashtra, (1979) 3 SCC
321 and Baijnath v. State of U.P., (2008) 11 SCC 738 converted
the conviction from Section 302 of IPC to Section 304 Part-II of IPC
and Section 304 Part -I of IPC respectively. The accused therein was
directed to undergo sentences of seven and six years respectively.
10. Per contra, Shri Yogesh Dhande, learned Government
Advocate for the State submits that considering the grievous injuries
on the vital part of the deceased, it cannot be said that appellant did
not have any knowledge regarding the impact of such blow. The
description of weapon is clearly mentioned in the statement of
Doctor PW-5. Considering the aforesaid, no fault can be found in
the findings of the Court below that appellant has committed an
offence under Section 302 of IPC. Shri Dhande supported the
impugned judgment.
11. The learned counsel for the parties confined their arguments
to the extent indicated above.
12. We have heard learned counsel for the parties at length and
perused the record.
13. In view of the aforesaid stand of the parties, it is not in dispute
that the appellant is real nephew of the deceased. The nature of the
incident leaves no room for any doubt that there was no motive or
premeditation for committing such an offence. No previous history
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of dispute or enmity was brought to the notice of the Court below.
Therefore, the Court below in paragraph-14 of the impugned
judgment gave a specific finding that the prosecution during
investigation and before the Court could not detect and establish any
motive behind the incident.
14. The factual backdrop of the matter shows that a sudden
quarrel had taken place between Govardhan Singh, Rajaram and
Dilip Singh because accused persons were shifting certain stones
from the boundary of the agricultural field. Since Govardhan Singh
asked them not to do the same, a sudden quarrel had taken place
which took an ugly shape. Thus we are fully satisfied that the
incident had taken place suddenly and it is not based on any
premeditation or previous enmity.
15. Interestingly, in the case of Baijnath (supra) there was a
previous dispute between the parties. The relevant paras of this
judgment reads as under:-
"3. Background facts in a nutshell are as
follows:
The appellant-accused, Baijnath and deceased,
Kalika Prasad were real cousins. The father of the
accused, Beche Lal and Khargi, father of Kalika
(hereinafter referred to as "the deceased") who was
the informant, were real brothers and they lived
separately in two adjoining houses. There was some
dispute in between the two families regarding
"nabdan" and fixing of "kuntas" (pegs), which were
used for tying the cattle.
4. On the date of the occurrence, that is, 13-7-1993
at about 7.00 p.m., a panchayat had been called to
settle the dispute in between the two families. The
village pradhan and many others were also present
in the panchayat. Claims and counterclaims were
made by the accused and the deceased. When
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accused Baijnath declared that the disputed land
belonged to him and will not be given to the
deceased who made a counterclaim, accused
Baijnath gave a lathi-blow on the head of the
deceased Kalika Prasad, who sustained head injury,
and on account of this lathi-blow, fell down. Accused
Baijnath ran inside his house.
10. We find that Dr. Lalit Kumar (PW 6) who
examined the dead body of the deceased for the
purpose of post-mortem found the following ante-
mortem injury:
"Lacerated wound 1 cm × 0.5 cm front on interior
part of right side scalp, 10 cm above middle right
eyebrow, wound is muscle-deep."
Doctor's evidence clearly shows that there were
fractures of both parietal and frontal bone. He
opined that the cause of death was due to coma as a
result of head injury. According to the appellant the
doctor admitted that the injury in question could
have been sustained due to fall on the iron rod
embedded in the earth. The evidence clearly
established that the accused had given a lathi-blow
on the head of the deceased which resulted in the
death of the deceased. As rightly noted by the High
Court the case is clearly covered under Section 304
Part I IPC. Considering the nature of the injury and
the weapon used clearly shows the guilt of the
accused. That being so, custodial sentence of 7 years
as imposed does not suffer from any infirmity."
[Emphasis Supplied]
16. A bare perusal of paragraph-4 of the judgment makes it clear
that there existed a dispute between the parties which travelled to
the Village Pradhan and to the relevant Panchayat. The Apex Court
considering the nature of the incident opined that the conviction
deserves to be converted from Section 302 of IPC to Section 304
Part-I of IPC. The appellant therein was directed to undergo a
sentence of 7 years.
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AGRAWAL
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3:33:43 PM
17. Similarly in the case of Mirza Hidayatullah Baig (supra), the
Apex Court opined as under:-
"1. This appeal has been pressed on the
limited point of the applicability of Section 302
to the present case. Mr Kohli appearing for the
appellant has contended that having regard to
the facts and circumstances of this case and the
nature of the weapon used, it cannot be said that
the appellant intended to cause the death of the
deceased Akhtar Hussain. The evidence shows
that an altercation started over the passing of
dirty water through the drain in front of the
house of the deceased. An altercation followed in
course of which the appellant is said to have
given a cane stick blow to the deceased. The
weapon was merely a walking stick and would
not have normally caused the death of the
deceased. In the circumstances we are satisfied
that the appellant did not have the intention to
cause the particular injury which has resulted
from the blow given to the deceased. But as the
appellant aimed the blow at the head of the deceased
which is a vital part of the body, there can be no
doubt that he must be presumed to have the
knowledge that death was the likely result of his act.
In these circumstances, this case clearly falls within
the ambit of Section 302(II) IPC. We, therefore, alter
the conviction of the appellant from Section 302 IPC
to Section 304(II) and reduce the sentence to the
period already undergone as we understand that the
appellant who was not granted bail has already
served about six years. With this modification, the
appeal is dismissed."
[Emphasis Supplied]
In the above case a stick blow was given to the deceased. The
offence was converted from Section 302 of IPC to Section 304 Part-
II of IPC. Appellant therein was directed to undergo a sentence of
six years.
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AGRAWAL
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3:33:43 PM
18. During the course of arguments, learned counsel for parties
fairly submitted that in the instance case, the appellant has already
undergone 8 years of actual sentence.
19. If factual background of the present case is examined in the
light of the aforesaid two judgments of the Supreme Court, it will be
clear that without motive, the appellant suddenly used an
agricultural instrument to assault the deceased person because of
that two head injuries were caused which became reason of death of
Heeraram. In our opinion, the Court below has committed an error
in convicting the appellant under Section 302 of IPC. The element
of assault by means of Penari is established but considering the
factual background of the matter, we are unable to hold that
necessary ingredients for convicting the appellant under Section 302
of IPC were available.
20. Accordingly, we deem it proper to alter the conviction from
Section 302 of IPC to Section 304 Part-II of IPC and impose
sentence of 8 years. The appellant has already undergone actual
sentence of 8 years which in our opinion is sufficient and therefore,
appellant shall be treated to have undergone the sentence of 8 years.
The impugned judgment is modified to the extent indicated above.
21. The appeal is partly allowed.
(SUJOY PAUL) (PRAKASH CHANDRA GUPTA)
JUDGE JUDGE
vai/bks/mishra
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Signed by: VAISHALI
AGRAWAL
Signing time: 10/14/2022
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