Vijay Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 2137 MP

IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CRA No. 2696 of 2022 (VIJAY SINGH AND OTHERS Vs THE STATE OF MADHYA PRADESH)

Dated : 07-02-2023 Shri Manish Datt - Senior Advocate with Shri Siddharth Datt -

Advocate for the appellant nos. 1 to 5.

Shri Ajay Shukla - Government Advocate for the State of M.P.

IA No. 1557 of 23 filed on behalf of appellant no. 1- Vijay Singh, appellant no.2, Amar Singh @ Pintu Singh, appellant no.3, Ashish Singh @

Sonu Singh and appellant no. 4, Gajendra Singh @ Gajju Singh and I.A.No.21771 of 2022 filed on behalf of appellant no.5- Deepu @ Deependra Singh under Section 389 of the Cr.P.C for suspension of sentence and grant of bail are taken up.

The appellant no. 01 to 4 have been convicted under Section 452 of IPC and sentenced to undergo R.I. for 02 years with fine of Rs.100/-, under Section 324/34 of IPC and sentenced to undergo R.I. for 02 years with fine of Rs.100/-, under Section 323/34 of IPC and sentenced to undergo R.I. for 06 months with fine of Rs.100/- and under Section 302/34 of IPC and sentenced to undergo

R.I. for Life with fine of Rs.100/- with default stipulations.

The appellant no. 5 has been convicted under Section 452 of IPC and sentenced to undergo R.I. for 02 years with fine of Rs.100/-, under Section 324/34 of IPC and sentenced to undergo R.I. for 02 years with fine of Rs.100/-, under Section 323/34 of IPC and sentenced to undergo R.I. for 02 years with fine of Rs.100/- and under Section 302/34 of IPC and sentenced to undergo R.I. for Life with fine of Rs.100/- with default stipulations.

Learned counsel for appellant nos. 1 and 5 submits that this court on Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/8/2023 10:36:05 AM

8.7.2022 was kind enough in permitting the appellant nos. 1 to 5 to renew their applications after completing one year's actual sentence, which they have already undergone. It is submitted that as per prosecution story, the appellant nos. 1 to 5 alongwith one Rajesh assaulted the deceased person on 31.10.2014. The deceased was hospitalized but was discharged from the hospital on 4.11.2014. He died on 19.11.2014 because of thromboembolism. The prosecution has not proved that the injuries caused by the appellant nos. 1 to 5 were sufficient to cause death. The Doctors who have entered the witness box namely Dr. S.K. Pathak (PW-1), Dr. V.B. Singh (PW-5), Dr. Akhal Prakash (PW-17) and Dr. D.K. Mishra (PW-9) did not depose that the death was

homicidal in nature. Thus, the necessary ingredients for attracting Section 302 of IPC are absent. At best, offence under Section 325 of IPC can be made out.

Heavy reliance is placed on the judgment of the Supreme Court reported i n (1998) 5 SCC 150 (G.S. Walia v. State of Punjab). Following paragraphs were relied on :-

6. In order to prove that death of Balwant Singh was due to the injuries inflicted upon him by the accused, the prosecution had produced the bed-head ticket, the post- mortem report and the opinion of Dr Aneja. The prosecution had also examined Dr B.S. Chhabra, PW 1, who had first treated Balwant Singh while he was taken to Civil Hospital, Khanna and Dr H.S. Aneja, PW 2, who had subsequently given an opinion regarding cause of death of Balwant Singh. The medical evidence discloses that the deceased had received in all 13 injuries and three of them had resulted in fractures. The three grievous injuries were on the head and the legs of Balwant Singh. In the post- mortem notes the cause of death of Balwant Singh is stated in the following terms:

€œIn my Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/8/2023 10:36:05 AM

opinion, death in this case was on account of Pulmonary Embolism which means blocking of the main artery to the lungs by piece of clot detached from any other part of the body. This is remote complication of prolonged bed rest which was in that case due to the multiple injuries. The injuries themselves were not sufficient to cause death in the ordinary course of nature and were only indirectly responsible to cause death due to a remote complication which in this case was unavoidable. The injuries were ante-mortem in nature and were on account of blunt weapon.â€Ã ‚ÂÂÂ​

7. After considering all the relevant material, Dr Aneja, PW 2 had opined that the death of Balwant Singh was on account of Pulmonary Embolism and that the said complication had arisen due to prolonged bed rest which was necessitated by multiple injuries received by him. The medical evidence thus clearly shows that though the injuries themselves did not cause the death, they had necessitated bed rest and that led to Pulmonary Embolism. The evidence of Dr Aneja leaves no doubt that the injuries had necessitated bed rest and the complication which had arisen was unavoidable and was the d irec t result of bed rest. The death was the natural consequence of the injuries caused and it was not because of any negligence or external factor. Therefore, there is no substance in the contention raised by Mr U.R. Lalit that the injuries were only indirectly responsible for causing death of Balwant Singh and as his death cannot be said to have been caused due to the injuries caused, the statement made by him would not fall within Section 32 of the Indian Evidence Act. In view of our finding on this point, the decisions in Imperatrix v. Rudra [ILR (1900) 25 Bom 45 : 2 Bom LR 331] , Abdul Gani Bandukchi v. Emperor [AIR 1943 Cal 465 : 47 CWN 332 : 45 Cri LJ 71] , Mallappa Shivlingappa Chanagi, Re [AIR 1962 Mys 82 : (1962) 1 Cri LJ 619] and Moti Singh v. State of U.P. [AIR 1964 SCC 900 : (1964) 1 Cri LJ 727] relied upon by Mr Lalit are of no help to him. In all these cases, the Court had held that there was no evidence or that the evidence led was insufficient to prove that the deceased had died as a result of injuries caused to him. As the statement of Balwant Singh related to the cause of his death it was admissible in evidence under Section 32 and the Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/8/2023 10:36:05 AM

High Court was in error in holding otherwise.

11. We are of the view that the trial court was right in relying upon the evidence of Kesar Singh and the dying declaration and holding the accused guilty for causing injuries to Balwant Singh. But the trial court was not right in convicting the accused under Section 302 read with Section 149 IPC. The medical evidence does not show that the injuries caused to Balwant Singh were sufficient to cause his death in the ordinary course of nature. They were not even stated to be likely to cause his death. The accused had no reason to kill Balwant Singh. In view of the facts and circumstances of the case the only inference that can reasonably be drawn is that their object was only to beat him. No attempt was made by them to cause serious injury on any vital part of his body. Therefore, the accused should have been convicted only for the offence punishable under Section 325 read with Section 149 IPC. We, therefore, allow this appeal, set aside the judgment and order passed by the High Court and hold the accused guilty under Sections 148 and 325 read with Section 149 IPC. For the offence punishable under Section 325 read with Section 149 IPC we sentence them to suffer imprisonment for the period already undergone and to pay a fine of Rs 10,000. In default of payment of fine, they are ordered to suffer further rigorous imprisonment for a period of six months. If the fine is paid then the said amount shall be paid to the widow of the deceased by way of compensation. The respondents are given two months' time to pay the fine.

It is submitted that this court was kind enough in suspending the remaining jail sentence of co-accused Rajesh Singh in Cr.A. No.2979 of 2022 on 30.8.2022. For this reason also the appellant nos. 1 to 5 may be given the similar treatment. More so, when final hearing of this appeal of 2022 is not possible in near future.

T h e prayer is opposed by Shri Ajay Shukla learned Government Advocate for the State on the basis of the objection. Learned Counsel for the State placed reliance on Paras 57, 58 and 59 of the impugned judgment. In Para

-57 itself, learned Court below has given a finding that in postmortem report, it Signature Not Verified Signed by: BASANT KUMAR SHRIVAS Signing time: 2/8/2023 10:36:05 AM

is not mentioned that the death was homicidal in nature.

We have heard both the parties at length on this aspect. Considering the aforesaid factual backdrop and without expressing any conclusive opinion on the merits of the case, we deem it proper to suspend the remaining jail sentence of appellant no.1 and 5.

Accordingly, IA No. 1557 of 23 filed on behalf of appellant no. 1- Vijay Singh, appellant no.2, Amar Singh @ Pintu Singh, appellant no.3, Ashish Singh @ Sonu Singh and appellant no. 4, Gajendra Singh @ Gajju Singh and I.A.No.21771 of 2022 filed on behalf of appellant no.5- Deepu @ Deependra Singh are allowed.

Subject to depositing the fine amount (if not already deposited), the remaining jail sentence of the appellant no.1 to 5 is hereby suspended and it is directed that on furnishing a personal bond for a sum of Rs.30,000/- (Rupees Thirty Thousand Only) each along with one surety in the like amount to the satisfaction of the trial Court by the appellant no.1 to 5, appellant no. 1- Vijay Singh, appellant no.2, Amar Singh @ Pintu Singh, appellant no.3, Ashish Singh @ Sonu Singh, appellant no. 4, Gajendra Singh @ Gajju Singh and no.5- Deepu @ Deependra Singh be released on bail with a further direction to remain present before the Trial Court, Rewa on 8th May 2023 and on such other dates as may be fixed by the trial court in this regard during the pendency of this appeal.

Certified copy as per rules.

                                (SUJOY PAUL)                               (AMAR NATH (KESHARWANI))
                                   JUDGE                                            JUDGE

                          bks

Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 2/8/2023
10:36:05 AM





Signature Not Verified
Signed by: BASANT KUMAR
SHRIVAS
Signing time: 2/8/2023
10:36:05 AM