Pahalwan @ Pillu vs The State Of Madhya Pradesh
2022 Latest Caselaw 12689 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 22nd OF SEPTEMBER, 2022


            CRIMINAL APPEAL No. 794 of 2013

 BETWEEN:-
 PAHALWAN @ PILLU S/O BABULAL
 SAHU, AGED ABOUT 38 YEARS, 140 NEW
 GORI NAGAR CHANCHAL GENRAL
 STORE MATAJI KA MANDIR INDORE
 (MADHYA PRADESH)
                                               .....APPELLANT
 (MS. SEEMA MAHESHWARI, ADVOCATE)

 AND
 THE STATE OF MADHYA PRADESH
 GOVT.THRU.P.S.SANYOGITAGANJ,IND
 ORE (MADHYA PRADESH)
                                             .....RESPONDENTS

 ( SHRI KAMAL KUMAR TIWARI GOVT.ADVOCATE)


      This appeal coming on for judgment this day, JUSTICE

AMAR NATH (KESHARWANI) passed the following:

                         JUDGMENT

Today this appeal is listed on I.A. No.1416/2022 which is sixth application under Section 389(1) of the Code of Criminal Procedure, 1973 for suspension of jail sentence and grant of bail

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filed on behalf of sole appellant Pahalwan @ Pillu on the ground that appellant has undergone more than 10 years of actual jail sentence. However, with the consent of the parties, appeal is finally heard.

[2] This criminal appeal is preferred under Section 374 of the Cr.P.C. against the impugned judgment of conviction and order of sentence dated 22/05/2013 passed in Sessions Trial No.324/2012 by Sixth Additional Sessions Judge, Indore by which the appellant herein has been convicted for an offence under Section 302 of the IPC and sentenced to undergo imprisonment for life and further sentenced to pay a fine of Rs.5,000/- and 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:

[3] As per prosecution case, on 10.12.2011 at about 0.30 PM one Jagdish, Telephone Operator at M.Y.Hospital, Indore informed the police station Saiyogitaganj that Mamta bai (deceased) has been brought to the hospital in a burned condition for treatment by her brother-in-law Krishnakant (PW-4) at about 23-10 hours and was 74% burned, and was being treated in burn ward. The above said information was entered at Rojnamcha No.899-A (Ex-D-2). On the same day at about 1.45 PM Sub- Inspector, V.B. Mishra, (PW-9) recorded Dehati Nalshi under Section 307 of IPC (Ex-P-9) of Mamta Bai (deceased) in which she stated "that she lives at Ramnagar, Musakhedi, Indore, and she was married to Dalchand 10 years prior to the incident and out of the said wedlock she had three children, who reside with their father Dalchand. She also stated that her husband Dalchand used to drink liquor too much and on instigation of his brothers

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he used to quarrel with her, and beat her, due to which two months back she went to Indore with brother-in-law Krishnakant (PW-4) and started living with him at Ramnagar, Mushakhedi, Indore. Her husband had four brothers out of which one brother was the appellant-Pahalwan @ Pillu who resides at New Gauri Nagar, Indore. On the date of incident, at about 10.30 PM appellant Pahalwan @ Pillu came to her house at Ramnagar, Indore and started quarreling with her and said that "why she left her husband Dalchand" and slapped her three times and set her ablaze by pouring kerosene oil, at that time Krishnakant (PW-4) came there and covered her with a blanket and extinguished the fire. Thereafter, Krishnakant (PW-4) and Anil Sen (PW-5) brought her to M.Y. Hospital, Indore. On the information mentioned above, Dehati Nalshi report (EX-P-9) under Section 307 of IPC was registered against appellant, and thereafter an FIR (EX-P-10) at crime No.1276/2011 was registered against the appellant at Police station Saiyogitaganj District Indore. [4] During investigation, on 10.12.2011 at morning 8.50 AM dying declaration of Mamta was recorded by Nidhi Verma-Naib Tahsildar (PW-2). In dying declaration (Ex-P-2), deceased Mamta reiterated the facts mentioned in Dehati Nalshi (EX-P-9). During investigation, the statements of Krishnakant (PW-4) and (deceased) Mamta Bai were recorded under Section 161 of Cr.P.C, in which they had stated that on 09.12.2011 at about 10.30 PM the appellant Pahalwan @ Pillu set her ablaze by pouring kerosene oil on her. Spot map (Ex-P-11) was drawn. An inspection was conducted by the Scientific Officer of the Office of Scene of Crime Mobile Unit, District Indore and Inspection report (EX-P-6) was prepared and from the place of incident an

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Iron stove in which 100 grams of Kerosene oil, one match box, one burned Saaree, one brown burnt blouse and one brown petticoat were seized vide seizure memo (Ex-P-1). On 15.12.2011 at 6.30 AM, during her treatment Mamta Bai (deceased) expired. Telephone operator of M.Y. Hospital, Indore informed to the police station Saiyogitaganj about the death of Mamta bai and on the said information, Marg No.110/2011 (Ex.P-22) was registered under Section 174 of the Cr.P.C and the investigation was carried out and the charge under Section 307 of IPC was converted into Section 302 of IPC against the appellant. [5] Statement of witnesses were recorded. Naksha Panchanama (Ex-P-17) of dead body was prepared and dead body was sent for P.M. and autopsy was done by Dr. Rohit Manyal (PW-7) and PM report (EX-P-7) prepared and opined that the cause of death was due to severe burn injuries. The seized articles were sent for chemical examination to Forensic Science Laboratory and report (Ex-P-14) was received. The appellant was arrested vide arrest memo (Ex-P-15). Upon completion of the investigation, a charge sheet was filed before the Competent Court against the appellant under Section 302, 307 of IPC. The case was committed to the Sessions Court and thereafter the same made over to Sixth Additional Sessions Judge, District Indore for disposal according to law.

[6] Trial Court framed the charges under Sections 302 of I.P.C. against the appellant which he denied and pleaded for the trial. [7] The prosecution has examined 16 witnesses and exhibited 23 documents to prove its case. The appellant has not examined any witnesses in his defence but exhibited 2 documents. [8] After evaluating the evidence that came on record, the

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learned Sixth Additional Sessions Judge, District Indore vide judgment dated 22.05.2013 convicted and sentenced the appellant for the offence punishable under Section 302 of I.P.C. as mentioned above.

[9] Learned counsel for the appellant submits that the impugned judgment is contrary to law and facts on record. All the independent witnesses remained hostile and have not supported the story of prosecution. The learned trial Court has found accused guilty only on the basis of dying declaration (EX-P-2) which was recorded by Naib Tahsildar -Nidhi Verma (PW-2) and Dehati Nalshi (EX-P-9). Learned counsel for the appellant submits that the evidence reveals that there was a dispute with respect to relationship between the husband and the deceased for which the present appellant has been falsely implicated. The judgment of the lower court is based on assumptions, conjectures and surmises and the conviction is bad in law.

[10] By way of the alternate submission learned counsel submits that even if the entire story is accepted then this case will fall under Exception IV of Section 300 of IPC for which at the most is liable to be convicted under Section 304 Part I of the IPC. It is further submitted that the appellant and the deceased were brother-in-law (Dewar) and sister-in-law (Bhabhi). There was no previous enmity between them and the incident arose only on the reason that the deceased (Mamta) left her husband and children and resided with her brother-in-law (Dewar) Krishnakant (PW-4). The offence was committed out of anger. Learned counsel for the appellant submitted that the appellant has undergone more than 10 years of actual jail sentence and he has no criminal background, hence, the period of sentence may

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kindly be reduced to ten years by altering the charges. [11] Per contra Government Advocate for the respondent/State opposes the aforesaid prayer by submitting that the appellant has committed the murder of her sister-in-law by pouring kerosene oil on her body and set her ablaze, hence the trial Court has rightly convicted the appellant u/s 302 of I.P.C. It is further submitted by the learned Govt. Advocate that there is no reason to disbelieve the Dehati Nalshi (Ex-P-9) and dying declaration (EX-P-2), hence the appeal is liable to be dismissed. [12] We have heard learned counsel for the parties and perused the record of the trial Court and examined the case. [13] As per Dehati Nalshi (Ex-P-9) the date and time of the incident are 09.12.2011 at 10.30 PM and dehati Nalshi (Ex-P-9) was recorded by V.B Mishra , Sub Inspector (PW-9) at 1.45 night in which it is specifically mentioned that the "appellant has ablazed the deceased by pouring kerosene". Similar facts was also mentioned in dying declaration of deceased Mamta, which was recorded on 10/12/2011 at 9.00 AM by Naib Tahsildar Nidhi Verma (PW-2) in presence of doctor. In the fact and circumstances of the case, there is no reason to disbelieve the facts stated in the Dehati Nalshi (Ex-P-9) and dying declaration (Ex-P-2).

[14] Looking at the Dehati Nalshi (Ex-P-9), dying declaration (Ex-P-2), P.M report (Ex-P-7), FSL report (EX-P-14) and statement of Nidhi Verma Naib Tahsildar (PW-2), Dr. Sudhir Sharma, Senior Scientific Officer (PW-6), Dr.Rohit Manyal (PW-

7), Dr.Deepak Phandse (PW-8) and Vijay Bhadur Mishra Sub

-Inspector (PW-9), who scribed the Dehati Nalshi (Ex-P-9) it reveals that finding of the trial Court in respect of conviction is

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based on the evidence adduced before the trial Court. [15] The record of the case reveals that there was no enmity between the deceased and the appellant. They were brother-in- law and sister-in-law. The appellant became annoyed because the deceased Mamta had left her husband and children and resided with her brother-in-law Krishnakant (PW-4). Appellant ablazed the deceased by pouring kerosene under the heat of passion and out of anger.

[16] The Hon'ble Supreme Court has held in Gurpal Singh v. the State of Punjab, AIR 2017 SC 471. Para 10 of the judgment reads thus:

"10. However, in the singular facts of the case and noticing in particular, the progression of events culminating in the tragic incident, we are inclined to reduce the sentence awarded to him. Incidentally, the occurrence is of the year 2004 and meanwhile twelve years have elapsed. Further, having regard to the root cause of the incident and the events that sequentially unfolded thereafter, we are of the comprehension that the appellant was overpowered by an uncontrollable fit of anger so much so that he was deprived of his power of self-control and being drawn in a web of action reflexes, fired at the deceased and the injured, who were within his sight. The facts do not commend to conclude that the appellant had the intention of eliminating any one of those fired at, though he had the knowledge of the likely fatal consequences thereof. Be that as it may, on an overall consideration of the fact situation and also the time lag in between, we are of the view that the conviction of the appellant ought to be moderated to one under Sections 304 Part 1 IPC and 307 IPC. Further, considering the facts of the case in particular,

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according to us, it would meet the ends of justice, if the sentence for the offences is reduced to the period already undergone. We order accordingly."

[17] The Hon'ble Supreme Court has laid down in Prabhakar Vithal Gholve v. the State of Maharashtra, AIR 2016 SC 2292 that if the assault on the deceased could be said to be on account of the sudden fight without premeditation, in heat of passion, and upon a sudden quarrel, Conviction of the appellant cannot be sus- tained under S. 302 and altered to one under Section 304 Part-I of IPC. In Sikandar Ali Vs. The state of Maharashtra, AIR 2017 SC 2614, the Court altered the conviction u/s 302 IPC to one u/s 304 part-2 IPC in the following circumstances:

"7. We have no doubt about the complicity of all the accused in the homicide of Sarfraj. A-1 attacked the deceased with the knife and caused injury on his neck which resulted in his death. The other accused assisted him in committing the crime by holding the hands of the deceased. However, the only question that falls for our consideration is whether the accused are liable to be punished for an offence under Section 302 IPC. After considering the submissions made by the counsel for the Appellants and scrutinising the material on record, we are of the opinion that the accused are not liable to be convicted under Section 302 IPC. We are convinced that there was neither prior concert nor common intention to commit a murder. During the course of their business activity the accused reached the dhaba where the deceased was present. An altercation took place during the discussion they were having behind the dhaba. That led to a sudden fight during which A-1 attacked the deceased with a knife. Exception 4 to Section 300 is applicable to

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the facts of this case. As we are convinced that the accused are responsible for the death of Sarfraj, we are of the opinion that they are liable for conviction under Section 304 part II of the IPC. We are informed that A-1 has undergone a sentence of seven years and that A-2 to A-4 have undergone four years of imprisonment. We modify the judgment of the High Court converting the conviction of the accused from Section 302 to Section 304 part II of the IPC sentencing them to the period already undergone. They shall be released forthwith."

[18] The Hon'ble Apex Court laid down in Madhavan and Ors. Vs. The State of Tamil Nadu, AIR 2017 SC 3847 that:

"8. Notably, the High Court has not considered the issue of quantum of sentence at all, but mechanically proceeded to affirm the sentence awarded by the Trial Court. From the factual position, which has emerged from the record, it is noticed that there was a preexisting property dispute between the two families. The incident in question happened all of a sudden without any premeditation after PW1 questioned the appellants about their behaviour. It was a free fight between the two family members. Both sides suffered injuries during the altercation. The fatal injury caused to Periyasamy was by the use of thadi (wooden log) which was easily available on the spot. The appellants, on their own, immediately reported the matter to the local police alleging that the complainant party was the aggressor. No antecedent or involvement in any other criminal case has been reported against the appellants. Taking oral view of the matter, therefore, we find force in the argument of the appellants that the quantum of sentence is excessive.

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Conclusion

[19] In view of the foregoing discussion, and looking at the verdicts of the Hon'ble Apex Court, the judgement of conviction dated 22/05/2013 is hereby confirmed, and culpability of the appellant is maintained. The conviction of the appellant u/s. 302 of the IPC is set aside and he is convicted for an offence punishable u/s. 304 Part I of the IPC and sentenced to undergo 10 years' rigorous imprisonment with same fine amount as awarded by the trial court. Since the appellant was in custody since the date of arrest i.e. 23.12.2011 therefore the appellant has undergone more than 10 years of actual sentence. Therefore, appellant be released from jail, if he is not required to be kept in jail in any other case.

[20] Thereby this appeal stands partly allowed to the extent mentioned above.

[21] Record of the court below along with a copy of this order be sent forthwith for information and compliance.

      VIVEK RUSIA                            AMARNATH (KESHARWANI)
        (JUDGE)                                        (JUDGE)



          Digitally signed by
          REENA PARTHO
das       SARKAR
          Date: 2022.09.27
          12:05:47 +05'30'