Kunwar Singh vs The State Of Madhya Pradesh
2023 Latest Caselaw 3763 MP

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                                                    CRA No. 888/2013



  HIGH COURT OF MADHYA PRADESH : BENCH INDORE
                            BEFORE

           HON'BLE SHRI JUSTICE VIVEK RUSIA
                               &
           HON'BLE SHRI JUSTICE ANIL VERMA

              CRIMINAL APPEAL No. 888 of 2013

BETWEEN:-
KUNWAR SINGH S/O VALSINGH, AGED 46 YEARS, OCCUPATION:
LABOUR, R/O. RANIPURA , RAJPUR (MADHYA PRADESH)
                                                .....APPELLANT
(SMT. PURNIMA KANUNGO, LEARNED COUNSEL                FOR     THE
APPELLANT THROUGH LEGAL AID SERVICES.)

AND
THE STATE OF MADHYA PRADESH THRU. P.S. RAJPUR DISTT.
BARWANI (MADHYA PRADESH)
                                             .....RESPONDENTS
(SHRI AMIT SINGH SISODIA, LEARNED GOVT. ADVOCATE FOR
RESPONDENT/STATE.)


Reserved on            :     01.03.2023.
Pronounced on          :     03.03.2023.


      This appeal having been heard and reserved for judgment,

coming on for pronouncement this day, Hon'ble JUSTICE SHRI

VIVEK RUSIA pronounced the following :

                           JUDGMENT

The sole appellant has filed this appeal being aggrieved by judgment dated 14.6.2013 passed in Sessions Trial No. 43/2012 by

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learned First Additional Sessions Judge, Barwani whereby the appellant has been convicted u/s. 302, 307 and 323 of the IPC and sentenced to undergo life imprisonment; 7 years' RI; 6 months' RI and to pay fine of Rs.2,000/-; 1,000/-; and 500/- respectively with default stipulation.

The prosecution story, in short, is as under :

On 18.12.2011 in the morning at 9.30 when Dongersingh was sitting in front of his house, the appellant came there and without telling anything gave a blow by means of spade on the back of head of the complainant - Ranu Bai due to which bleeding started. Dongersingh objected as to why he is assaulting then the appellant said that today he will finish him also and assaulted him by giving repeated blows twice by means of the same spade on his head, due to which he died on the spot. The wife of Dongersingh viz. Bana Bai shouted then the appellant assaulted her also by means of spade due to which she fell down and bleeding was started. Thereafter, the appellant ran away from the spot after leaving the spade. The complainant informed the incident to Lalsingh and Mukesh. Mukesh gave the information to the husband of the complainant and took complainant as well as Bana Bai to Rajpur Hospital for treatment. FIR was lodged by complainant Ranu Bai on 18.12.2011 at 20.40 hours for the offence u/s. 302, 307 and 323 of the IPC against the appellant.

The police reached to the house of the deceased, called the witnesses and drew the Naksha Panchayatnama vide Exh. P/3 and thereafter collected the plain soil and iron spade. The appellant was arrested on 18.12.2011 vide Exh. P/5. The spot map was prepared vide Exh. P/8. The dead body was sent for autopsy which was conducted by Dr. Rajnish Patidar who gave an opinion that

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Dongersingh died due to Coma because of compression of brain by huge haemotoma as a result of injury to skull. The seized articles such as clothes and the spade were sent for FSL examination and as per report vide Exh. P/24 the human blood was found on the spade and shirt of the deceased.

After completing the investigation the charge-sheet was filed before the Court of Judicial Magistrate, First Class, from where it was committed to the Court of Sessions. Charges u/s. 302, 307 and 323 of the IPC were framed against the appellant which he denied and pleaded for trial. The prosecution examined 10 witnesses and got exhibited 24 documents as Exh. P/1 to P/24. In defence, the appellant did not examine any witness. After appreciating the evidence came on record, learned Addl. Sessions Judge has convicted and sentenced the appellant as stated first. Hence, the present appeal before this Court.

Learned counsel for the appellant submits that the appellant has wrongly been convicted. The deceased, injured and the appellant are closed relatives. There are omissions and contradictions in the statement of witnesses which have been ignored by the learned trial Court. The appellant has been convicted without there being any motive established by the prosecution. It is further submitted that the appellant is of unstable mind, he moved an application for examination of his mental status, but the same has wrongly been rejected. The other witnesses have also sated that the appellant was not normal, he was not having any house, he used to sleep wherever he gets the place. Therefore, in such a mental status, when the offence was committed, the appellant was not aware of the consequence of his act, he is entitled for acquittal because of his mental condition.

Learned Govt. Advocate appearing for the respondent/State

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opposes the aforesaid prayer by submitting that the learned trial Court has examined the demeanor of the witnesses as well as of the appellant and found that his condition was normal in the Court. He was understanding all the questions which were asked by the Court. In support of his mental condition, no documents were filed. Therefore, now, he cannot take a plea of lunatic to get an acquittal. The appellant has not only assaulted the deceased, but he also assaulted wife and daughter-in-law of the deceased, but somehow they survived. There is no reason to disbelieve the statement of complainant Ranu Bai who witnessed the entire incident and fully supported the case of prosecution. Hence the appeal is liable to be dismissed.

After having heard the learned counsel for the parties, we have perused the record of Court below.

As per statement of complainant - Ranu Bai who is daughter-in- law of the deceased and injured. According to her, on the date of incident at near about 9.30 am. she was inside the house and the appellant came from outside and with an intention to kill her, he suddenly took the spade and gave a blow on her head. She sustained injuries and thereafter he assaulted her father-in-law by way of repeated blows by means of the same spade. Her mother-in-law tried to save them, but the appellant assaulted her also. Her mother-in-law somehow saved herself by going inside the house of Lala who was in the house. Thereafter, she gone in the house of Mukesh and told him to call her husband Harka. When her husband came there she informed him about the incident and lodged the report. The aforesaid deposition remained controverted. The cross-examination was done only on the point that the appellant is not having a stabled mind. A suggestion was given that the they wants to take possession of the land

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of the accused/appellant, therefore, he has been implicated in this case, which she has denied. Complainant's husband Harka was also examined as P.W.2 and he only stated that he received information from Mukesh about the incident, but Mukesh has not been examined in this case. However, Harka (P.W.2) is an hearsay witness. The prosecution has examined Nainsingh as P.W.3) who did not see the incident but seen Dongersingh lying dead outside the house and took his wife to the Hospital. Thereafter, he was declared hostile. So far as witness - Lalsingh (P.W.4) is concerned, he was informed about the incident by the complainant. He also went to the spot and saw Dongersingh lying dead in front of the house. Likewise, Gildar (P.W.5) who received the information of the incident from Indersingh and saw that deceased Dongersingh is lying dead outside his house. He has also been declared hostile. Therefore, except the complainant (P.W.1), no one has seen the appellant assaulting the deceased Dongersingh. Even the wife of the deceased has not been examined in this case who sustained the injury. Ranu Bai (P.W.1) is said to have sustained injuries on her head, but there is no such MLC on record. She refused to examine herself by a Doctor. But, there is a recovery of spade from the house of the deceased which was lying there. The clothes of the appellant have not been recovered. But, the fact remains that there was no previous enmity between the appellant and the complainant Ranu Bai for his false implication. The only defence which the appellant took is that the deceased and his family members wanted to grab his land. But all the suggestions given to the complainant - Ranu Bai have specifically been denied by her. All other witnesses i.e. P.W.2, P.W.3, P.W.4 and P.W.5 reached to the spot only after receiving the information about the death of Dongersingh.

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Since the complainant - Ranu Bai has not been medically examined and the wife of the deceased Bana Bai has not entered into the witness box, therefore, the conviction of the appellant u/s. 307 and 323 of the IPC is unsustainable. But, so far as conviction of the appellant u/s. 302 of the IPC is concerned, there is no reason to disbelieve the statement of the complainant - Ranu Bai (P.W.1). There is no delay in lodging the FIR. We do not find any ground to interfere with the impugned judgment so far it relates to conviction of the appellant u/s. 302 of the IPC.

Accordingly, this appeal is allowed in part. The conviction of the appellant u/s. 307 and 323 of the IPC is hereby set aside. However, the conviction and sentence of the appellant u/s. 302 of the IPC is hereby affirmed.

         [VIVEK RUSIA]                       [ANIL VERMA]
             JUDGE.                             JUDGE.
Alok/-

Digitally signed by ALOK GARGAV
Date: 2023.03.03 18:08:20 +05'30'