Sumersingh vs The State Of Madhya Pradesh
2022 Latest Caselaw 12310 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 AMAR NATH (KESHARWANI)

               ON THE 15th OF SEPTEMBER, 2022

            CRIMINAL APPEAL No. 218 of 2010

 BETWEEN:-
 SUMERSINGH S/O MANMOHARSINGH, CASTE-
 BHEELALA, AGED ABOUT 37 YEARS, R/O
 KHERWA      JAGIR,  THANA   MANAWAR,
 DISTT.DHAR (MADHYA PRADESH)
                                                    .....APPELLANT
 (MS. SHARMILA SHARMA, LEARNED COUNSEL FOR THE
 APPELLANT)

 AND
 THE STATE OF MADHYA PRADESH GOVT.
 THROUGH         POLICE        STATION
 DHAMNOD,DISTT.DHAR (MADHYA PRADESH)
                                                .....RESPONDENT
 (SHRI BHASKAR AGRAWAL LEARNED COUNSEL 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 consideration on an application under Section 389(1) of Cr.P.C.

With the consent of parties, heard finally.

This criminal appeal is preferred under Section 374 of the Cr.P.C. against the impugned judgment of conviction and order of sentence dated 15.02.2010 passed in Special Session Trial No. 282/2009 by II Additional District Judge, Dhar, District Dhar, by

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which the appellant herein has been convicted for an offence under Section 302 of IPC and sentenced to undergo Life Imprisonment with fine of Rs. 500/- to further undergo simple imprisonment for six months for want of failure to pay the fine amount.

The facts of the case in short are as under:

[2] As per prosecution story, on 02.06.2009 near about 09:45 a.m. in front of Aryans Hotel, present appellant assaulted his wife Kalabai by means of wheel pana. She fell on the spot and started bleeding, despite that he gave her repeated blows. He was caught hold by complainant Ajay Patidar and others. They took him to the Police Station. Kalabai was taken to the hospital where she was declared dead. Report was lodged at Police Station Dhamnod at Crime No. 233/2009 under Section 302 of IPC. The police reached to the spot, Naksha Panchnama was prepared, autopsy was carried out. As per Doctor, Ashok Saxena (PW-3), the death was homicidal as the parietal bone was found fractured. [3] Upon completion of the investigation, the appellant was charge-sheeted before the jurisdictional criminal court who committed the trial to the Court of Sessions for hearing and disposal in accordance with the law.

[4] The trial Court framed charges under Section 302 of I.P.C. against the appellant and proceeded on trial. The accused /appellant abjured guilt and entered into the trial. [5] The prosecution in order to bring home the offences examined as many as 8 witnesses and brought on record various documents to prove its case. Statement of the accused / appellant was recorded under Section 313 of the CrPC in which he abjured the guilt and pleaded innocence and false implication, however, he has not produced any witnesses or exhibited any document in

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his defence.

[6] After evaluating the evidence came on record, the learned trial Court not only convicted the appellant for the offence under Section 302 but also directed for prosecution to take action against Ajay (PW-4) who concealed the fact before the Court. Hence, this appeal before this Court.

[7] Learned counsel for the appellant submits that the appellant has not committed any offence, he has falsely been implicated in this case. None of the eye-witnesses have supported the case of prosecution, therefore, the conviction is bad in law. He further submits that even if the appellant was assaulted his wife but that was due to sudden provocation as there was no pre-planned murder. Hence, the offence would not travel more than under Section 304 (Part I) for which he has already been undergone more than 13 years, 3 months his jail sentence. Hence, appellant may kindly be allowed.

[8] Shri Bhaskar, learned counsel for the respondent submits that the appellant has rightly been convicted under Section 302 of IPC. As per the FSL report, human blood was found on his shirt, pant and wheel spanner. Ajay (PW-4) himself took the appellant to the police station but turned hostile before the Court. Therefore, no interference is liable to be called for. So far as the alteration of offence under Section 302 of IPC to 304 (Part I) is concerned, the appellant gave repeated blows to his wife with an intention to kill her as she was restraining him to sale plot. Hence, no case for alteration from under Section 302 of IPC to 304 (Part I) is made out.

We have heard the parties and perused the record. [9] As per the FSL Report as well as the statement of Doctor Ashok Saxena (PW-3), two lacerated wounds were found on head

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of the deceased and as per the internal examination parietal bone was found fractured. There was a hematoma of 2'x2' on left side of head. Therefore, the finding recorded by the Trial Court that death is homicidal and is not liable to be interfered. The prosecution has examined Mannubai (PW-1) who has categorically stated that the appellant wanted to sell the goats and plot which her daughter used to object, thus, he assaulted her inhumanly and killed. So far as other eye-witnesses are concerned, although they have turned hostile but the B.S. Parihar ( PW-8) Investigating Officer has stated that Ajay (PW-4) brought the accused to the Police Station and the said deposition has remained un-controverted. There is no challenge to the FSL Report that human blood was not found on the cloth of the appellant.

[10] So far as the alteration of Section 302 of IPC to 304 (Part I) is concerned, there is no evidence that because of the sudden provocation and in a heat of passion, the appellant has assaulted his wife. He gave repeated blows on her head till she died. Therefore, case will not fall under any exception IV of the 300 I.P.C.

[11] For the aforesaid discussion, this Court is of the view that the Trial Court has not committed any error in convicting the appellant for the offence under Section 302 of IPC, thus the impugned judgment dated 15.02.2010 passed in Special Session Trial No. 282/2009 by II Additional District Judge, Dhar is hereby affirmed. The appeal filed by the appellant is dismissed accordingly.

Certified copy as per rules.

                                     (VIVEK RUSIA)                   (AMAR NATH (KESHARWANI))
                                         JUDGE                                     JUDGE
                 Divyansh

Digitally signed by PRAVEEN
NAYAK
Date: 2022.09.16 15:07:22 +05'30'