Madhya Pradesh High Court
Lakhan vs The State Of M.P. on 5 April, 2023
Author: Deepak Kumar Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT GWALIOR
BEFORE
HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
ON THE 5 th OF APRIL, 2023
CRIMINAL APPEAL No. 92 of 2005
BETWEEN:-
1. LAKHAN S/O SHYAM LAL BAGHELE, AGED ABOUT
30 YEARS, OCCUPATION: NONE RESIDENT OF
VILLAGE GOBRA, PS BANMORE, DISTRICT
MORENA (MADHYA PRADESH)
2. BALE @ BAL KISHAN S/O SHYAM LAL BAGHELE,
AGED ABOUT 50 YEARS, OCCUPATION:
AGRICULTURE RESIDENT OF HALL PANCHA KA
PURA, JILA GWALIOR P.S. TIGHRA KA BANDHA,
MOOL NIWASI GRAM GOBRA, THANA BAMORE,
DISTRICT MORENA (MADHYA PRADESH)
3. AMAR SINGH S/O SHYAMLAL BAGHELE, AGED
ABOUT 35 YEARS, OCCUPATION: AGRICULTURE
RESIDENT OF GRAM GOBRA P.S. BAMORE
(MADHYA PRADESH)
4. GAMBHIRA @ GAMBHIR SINGH S/O SHYAM LAL,
AGED ABOUT 44 YEARS, OCCUPATION:
AGRICULTURE RESIDENT OF GRAM GOBRA P.S.
BAMORE, DISTRICT MORENA (MADHYA
PRADESH)
.....APPELLANT
(SHRI ARUN PATERIYA, LEARNED COUNSEL FOR THE APPELLANTS)
AND
THE STATE OF M.P. INCHARGE POLICE STATION PS
BANMORE (MADHYA PRADESH)
.....RESPONDENT
( SHRI VIRENDRA PAL- LEARNED COUNSEL FOR THE RESPONDENT-
STATE)
Th is appeal coming on for hearing this day, th e court passed the
following:
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
2
JUDGMENT
The instant criminal appeal has been preferred under Section 374 (2) of
Cr.P.C by the appellants challenging judgment of conviction and order of
sentence dated 03.12.2004 passed by Second Additional Sessions Judge,
Morena in Sessions Trial No.26/2000 whereby, each of the appellants has been
sentenced to undergo 5 years rigorous imprisonment with fine of Rs.500/- with
default stipulation for commission of offence under Section 392 of IPC and
they have further been sentenced to undergo 10 years rigorous imprisonment
with fine of Rs.1,000/- with default stipulation for commission of offence under
Section 304 Part I of IPC. Both sentences have been directed to run
concurrently.
(2) According to prosecution case, at the time of marriage of son of
appellant No.2, Ramprasad (since deceased) was not invited and other co-
accused persons were invited in the marriage and in the said marriage the
daughter of deceased, namely, Sheela was invited. All the present four accused
persons were insulted to her due to which, a dispute was created between
deceased and appellant No.3 and in this regard, a report was lodged by
appellant no.3 at police station concerned whereby deceased, his son and son-
in-law were arrested and thereafter, they were released. Due to this previous
enmity, on 05.10.1999 Rambeti (PW2) at around 6:00 in the morning was
returning her home after attending the call of nature from the agricultural field.
At that time, all the accused were talking each other by standing in the seating
hall. When Rambeti (PW2) entered in her home, the deceased had gone outside
for throwing cow-dung. At that time, appellant No.1 Lakhan armed with lathi
and appellant nos.2 to 4 armed with a axe came there and committed marpeet
with deceased. On hearing hue and cry of deceased, his wife Rambeti (PW2)
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
and son Shiv Singh (PW3) came out from the house and witnessed the incident.
Thereafter, the villagers gathered there. It is alleged that co-accused Somalia,
Ketakbai and Gasoda Bai also inflicted lathi blows on the both thighs on
injured- wife of deceased, Rambeti (PW2). Present appellant Nos.1 to 4 entered
into house of deceased and took away his 12 bore double barrel gun and
caused fire in air. When Rambeti (PW2) came outside of the house, found that
his husband- deceased has already found to be dead. Thereafter, all the accused
persons fled away from place of occurrence after taking blood stained clothes
of deceased with them. Rambeti (PW 2) lodged an oral report at 12:00 pm on
the basis of which Crime No. 169 of 1999 was registered for offfence under
Section 302, 394, 323, 34, 201 of IPC. Spot map was prepared as well as dead
body panchnama was prepared and the dead body of deceased was sent for
postmortem. As per postmortem report, 15 injuries on the body of deceased
was found. On 08.10.1999 appellant no.1- accused Lakhan surrendered before
the Court and from his possession, a 12 double barrel gun along with lathi were
seized. Matter was investigated. Blood stained and plain earth were seized and
same were sent for chemical examination and a positive report was received in
this regard. After completion of investigation and other formalities, charge sheet
was filed before competent Court from where case was committed to Sessions
Court. After recording evidence of witnesses and other materials produced
before it, the learned trial court after conclusion of trial convicted and sentenced
present appellants as mentioned above.
(3) It is contended by learned counsel for the appellants that the trial
court has committed an error in passing impugned judgement. The trial Court
has not properly appreciated evidence of prosecution witnesses. There are
major contradictions and omissions in the evidence of prosecution witnesses.
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
Deceased is the real brother of appellant's family. It is further contended that
wife of deceased Rambeti (PW2) and son of deceased Shiv Singh (PW3) are
related witnesses, therefore, their evidence is not reliable. It is further contended
that the incident had taken place at the spur of moment and there was no
intention of the appellant for causing any injuries to deceased. Deceased and
appellants are members of the same family. Looking to the gravity of situation
and the nature of offence, sometimes charges are altered at discretion of Court
after considering the necessary facts and circumstances of the case. Therefore,
he prayed that the appellants may be convicted and sentenced under Section
304 Part II instead of Section 304 Part I of IPC. Hence, prayed for setting aside
the impugned judgment.
(4) Per contra, learned Counsel for the State supported impugned
judgment of conviction and sentence and submitted that there being no infirmity
in the impugned judgment of conviction and sentence and the findings arrived at
by the Trial Court do not require any interference by this Court. Hence, prayed
for dismissal of present appeal.
(5) Before adverting to merits of the case, it would be necessary to go
through provisions of Section 304 of IPC.
(6) According to Indian Penal Code, Section 304 explains punishments
for culpable homicide not amounting to murder. Section 304 of IPC can be
separated into two parts i.e. Section 304 (Part I) and Section 304 (Part II). The
level of punishment is different and is given accordingly considering gravity of
offence committed. As per Section 304 (Part I) IPC, a person who has
committed a crime falling under the category of culpable homicide not
amounting to murder is to be awarded a punishment of life imprisonment or
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
imprisonment of a term extending up to ten years and a fine. The act of crime
has to be committed with both intentions along with knowledge. Furthermore, it
must be maintained that the act has been committed with knowledge that it is
likely to cause death but without any intention or knowledge to cause death or
any bodily injury resulting in causing death. It can be specified that Section 304
of IPC stresses two factors namely knowledge to determine the amount of
punishment. If an act is committed with both intention and knowledge, Section
304 (Part I) of IPC awards a punishment of imprisonment for life or
imprisonment for ten years and a fine. On the contrary, if it is committed with
knowledge but without intention, under Section 304 (Part II) of IPC, a person
shall be sentenced to a term of imprisonment of ten years or a fine or with both
ten years imprisonment and a fine.
(7) From bare reading of provisions of aforesaid Section, it appears that
where the accused who inflicted fatal injury on the body of deceased which
caused death, without intention to kill him, is liable to be convicted for
commission of offence under Section 304 Part II of IPC.
(8) Heard the learned counsel for the counsel for the appellants as well
as Counsel for the State and gone through evidence of following witnesses.
However, the question is whether present appellants could be convicted under
Section 304 Part I or Section 304 Part II of IPC ?
(9) Wife of deceased Rambeti (PW2) who alleged to be eye-witness of
the incident, in para 4 of her examination-in-chief deposed that appellant no.1
accused Lakhan and other three co-accused who are her brothers-in-law had
been fled away when she came out of her house and her husband -deceased
was lying dead and on his body, various injuries of axe were present. This
witness further deposed that people of village had seen of causing marpeet by
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
present appellants accused with her husband deceased. This witness in para 14
of her cross-examination deposed in her presence there was no talking with her
husband by the appellant no.1 accused Lakhan. She had only seen the incident
only half a minute of committing marpeet with her husband and she was
dragged by the people of the village to her house at the time of incident. This
witness further in para 16 of cross-examination deposed that being an informer,
since her husband used to give information about the dacoits, therefore, there
was a good relationship between the police and her husband and she could not
know as to whether there was a dispute between dacoits and her husband -
deceased, This witness in para 18 of cross-examination admitted that she did
understand the matter from the advocate as to how give evidence before the trial
Court.
(10) PW5 Shiv Singh, the son of deceased, in the last line of para 08 of
his statement deposed that either he had seen anything soon before or after the
incident. This witness in para 10 of his statement deposed that when he reached
spot, he saw that all accused persons were committing marpeet with his father
deceased and his father was already lying on the spot and due to committing
marpeet with his father, his father raised a hue and cry by which other villagers
came there and he has not seen incident and the villagers narrated him about the
incident as well as fleeing away by the accused persons. This witness further
deposed that all accused used to commit marpeet till 09:00 in the morning on
the date of incident and at around 09:00, he used to see incident from a
distance of 15-20 ft of place of occurrence. Other prosecution witnesses,
namely, PW1-Suresh, PW3-Darshanlal, PW4-Ramcharan, PW7-Kishanlal,
PW10-Kampooter Singh and PW11-Gopal Singh did not support prosecution
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
version and turned hostile by prosecution. In their evidence, they deposed that
neither they had seen the incident nor were they present at the scene of
occurrence. Further, PW9- Beniram in his deposition deposed that neither in
his presence, police had prepared arrest memo of accused- appellant no.1
Lakhan nor had prepared seizure memo of 12 bore gun and the lathi. Dr. B.K.
Sen (PW6) who examined injured Rambeti (PW2), wife of deceased, in his
evidence, deposed that injured Rambeti who sustained all three injuries, were
simple in nature. Dr.K.R.Mahore(PW8) who had conducted the postmortem of
deceased Ram Prasad in postmortem report Ex.P.8 opined that the cause of
death of deceased is due to coma as a result of severe head injury and shock
due to excessive hemorrhage from multiple injuries on different parts of body of
deceased and the mode of death of deceased is homicidal in natural and
duration of death of deceased was within 30 hrs. The doctor found 15 injuries
on the part of the body of the deceased. This witness in para 9 of cross-
examination admitted that on the parts of body of deceased, i. e. on the head
and neck of deceased, he could not mention as to whether there was either mark
of cow-dung on the clothes of the deceased or the earth. This witness in para 9
of his cross-examination admitted that at the time of the postmortem
examination he could not mention in postmortem report as to whether the
deceased was wearing clothes or not.
(11) Looking to the overall evidence of the prosecution evidence as well
as the gravity of offence and the nature of injuries suffered by the deceased as
well as the injuries suffered by injured Rambeti (PW2) in the alleged incident
took place at the spur of moment, it cannot be said that the appellants had any
intention to cause the injuries, which proved to be fatal in nature. Although the
deceased had suffered 15 injuries on various parts of his body but in the
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
considered opinion of this Court, the appellants could have been convicted
under Section 304 Part II of IPC in stead of Section 304 Part I of IPC with fine
amount as awarded by the trial Court. Accordingly, appeal to the aforesaid
limited extent by converting conviction of the appellants to under Section 304
Part II of IPC thereof instead of conviction under Section 304 Part I of IPC, is
partially allowed.
(12) So far as sentence of appellants is concerned, learned counsel for
appellants on placing reliance on the judgment of Hon'ble Supreme Court in the
matter of State of UP vs. Jodha Singh passed in SLP (Crl) No.3722 of
1996, submitted that as the incident is very old i.e. took place in the year 1999
and as more than 23 years have passed, the appellants are first offenders, they
have no criminal history either or before the alleged incident and they have
already served more than five years of jail incarceration, therefore, sentence
awarded to the appellants may be reduced to the period already undergone by
them.
(13) So far as the aforesaid contention of the appellants regarding
quantum of sentence is concerned, the same cannot be accepted. However, the
sentence of ten years RI awarded by trial Court for offence under Section 304
Part I of IPC is reduced to five years RI under Section 304 Part II of
IPC with fine amount as awarded by the trial Court. Since the appellants
are on bail, therefore, their bail bonds and surety bonds stand discharged. If
they are found to be already served more than five years rigorous imprisonment,
then they shall be released forth, if not required in any other case, after issuing
super-session warrant by the Court below concerned.
(14) So far as conviction and sentence of theappellants under Section
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
392 of IPC passed by the trial Court is concerned, the same is hereby
maintained.
(15) As a consequence there, present criminal appeal is partly allowed.
(16) The impugned judgment passed by trial Court is modified to the
extent indicated above.
(17) A copy of this judgment along with record be sent to the concerned
trial Court concerned for information.
(DEEPAK KUMAR AGARWAL)
JUDGE
MKB
Signature Not Verified
Signed by: MAHENDRA
BARIK
Signing time: 4/6/2023
6:01:21 PM
