Madhya Pradesh High Court
Sitaram @ Gudda vs The State Of Madhya Pradesh on 29 November, 2023
Author: Vivek Rusia
Bench: Vivek Rusia, Anil Verma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE ANIL VERMA
CRIMINAL APPEAL No. 742 of 2020
BETWEEN:-
SITARAM @ GUDDA S/O CHARAN SINGH, AGED ABOUT
25 YEARS, OCCUPATION: AGRICULTURIST VILLAGE
THULYAPANI, MAAL FALYA, P.S. BARUD, (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI PRADIP KUMAR GUPTA-ADVOCATE)
AND
THE STATE OF MADHYA PRADESH STATION HOUSE
OFFICER THROUGH P.S. OON, (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI AMIT RAWAL-GOVERNMENT ADVOCATE )
This appeal coming on for judgment this day, Justice Vivek Rusia
passed the following:
Heard and reserved on : 22.11.2023
Judgment pronounced on : 29.11.2023
ORDER
With the consent of the parties, this Criminal Appeal is being heard
finally.
T he instant appeal, under Sections 374 (2) of the Code of Criminal
Procedure, has been preferred against the judgment of conviction dated
24.06.2019 passed by learned First Additional Session s Judge, Khargone,
West Nimar in Sessions Trial No. 52/2018 whereby the sole appellant, namely,
Sitaram @ Gudda has been convicted under Sections 302 of IPC and has been
directed to undergo imprisonment for life with fine of Rs.5000 and in default
thereof, to undergo simple imprisonment of one year.
Facts of the case are in short are as under:
2. On 19.07.2018, Bihari S/o Tangya aged about 40 years was brought
dead in Community Health Center Segaon. An information to that effect was
given to Police Station Segaon by the hospital. The said information was
recorded at merg No.17/2018 under Section 174 of Cr.P.C. vide Ex. P/10. For
merg investigation, witnesses were called by drawing Safina form Ex.P/1. In
presence of the witnesses, Naksa Panchnama Ex.P/2 was prepared. In order to
know the cause of death, the dead body was sent to the postmortem and report
was submitted Ex. P/9. As per report, a fracture was found on the head which
become fatal and death was homicidal. The statement of witnesses were
recorded in which wife of the deceased Masribai gave an information to the
police that her husband went to the market of Village Keli. In the fish market,
Sitaram (appellant) and Shobharam of her Village were fighting. Her husband
tried to intervene between them, thus Sitaram become annoyed and took out the
stone and gave a blow on head of her husband. Her husband started bleeding
from nose and ears and thereafter Sitaram and Shobharam ran away from the
spot. Her husband become unconscious, she took the husband to Village with
the help of Ramesh from where he was taken to the Government Hospital,
where he was declared as dead. An FIR was registered at Crime No.147/2018
under Section 302 of IPC. The appellant was arrested. Statement of other
witnesses under Section 161 of Cr.P.C. were recorded. After completion of
investigation, charge sheet was filed before the Court competent. The trial was
committed to the Sessions Court. The appellants denied the charges and plead
for trial.
3. During trial, the prosecution has examined as many as 14 witnesses
and most of them supported the case of the prosecution and exhibited other
documents. In defence the appellant did not examine witnesses. On completion
of recording of evidence, the accused was examined under Section 313 of
Cr.P.C, to which he strongly denied the allegations brought against them by the
prosecution and claimed for trial.
4. After hearing the arguments of both sides and on going through the
evidences and materials available on record, the learned Sessions Judge came to
the conclusion that the appellant sustained the injury by stone to deceased due
to which he died, hence the death was homicidal and convicted the appellant as
mentioned para 1 of judgment.
5. Shri Gupta, learned counsel for the appellant submits that he is not
assailing the findings recorded by the learned Trial Court in respect of date of
incident, cause of incident, injury caused by the appellant by means of stone
and the postmortem report. Even if these findings are upheld as it is, even then
the offence will not travel more than under Section 325 of IPC for which
maximum sentence is 7 years. It is further submitted that that none of the
witnesses have deposed that this appellant caused the injury by stone with
intention to kill the deceased. The stone can not said to be lethal weapon. The
police seized the stone which is only about 1-1/2 Kg. The offence was
committed in heat of passion as appellant was fighting with Shobharam and the
deceased tried to intervene between them and out of anger the appellant gave
blow by means of stone. If under Section 325 of IPC is not made out then at
the most this appellant is liable to be convicted under Section 304 (Part-II) of
IPC for which appellant has already undergone sufficient period of
incarceration in jail. The appellant has no criminal past. Hence, appeal may
kindly be partly allowed.
6 . Learned Government Advocate opposes the aforesaid prayer by
submitting that as per doctor's report, a fracture was found on the head of the
deceased which was caused by means of stone by the appellant. The incident
was witnesses by Masribai (PW-2). The deceased was trying to pacify the
dispute but this appellant become annoyed and gave a blow with intention to kill
the deceased. Hence, he has rightly been convicted for the above offence.
Heard learned learned counsel for the parties and perused the entire
record.
7. As per the statement of Masribai (PW-2), she alongwith her husband
(deceased) went to Keli Market. In the market,this appellant and Shobharam
were fighting, since they both belonged to their Village, therefore, deceased
tried to intervene into their dispute in order to resolve it. The appellant abused
him by filthy language and gave a blow by means of stone to the deceased. She
has nowhere stated that the appellant caused the injury with intention to kill her
husband. The deceased was taken to the Village and in the night he was taken to
the hospital at 10:00 pm where he was declared dead. In cross examination
however, she admitted that during the scuffle between appellant and
Shobharam, this appellant fell down and sustained the injury on head. Apart
from PW-2, no other witnesses were present on the spot and they are the
hearsay witnesses, thus as per the definition of section 320 of IPC, the
deceased suffered grievous injury which was caused by this appellant by means
of stone, therefore, offence will not travel more than Section 325 of IPC as
there was no intention to kill or mens rea.
8. In view of above, we are of the view that in a sudden fight, between
two person, out of which one pelted stone to third person, who died due to
which does not comes under Section 302 that too without the prosecution
proving the intention and motive on the part of accused who had no previous
enmity with the deceased. The present Criminal Appeal is partly allowed. The
conviction of the appellant and sentence awarded to him under Section 302 of
I.P.C. is altered to one under Section 325 of I.P.C., for which, the appellant is
awarded five years' rigorous imprisonment. The fine amount is maintained as
awarded by the learned Trial Court.
9 . In case, the appellant, Sitaram @ Gudda has already served the
sentence awarded to him for the offence under Sections 325 of I.P.C., he shall
be released forthwith, if he is not wanted in any other case.
10. Let the record of Trial Court along with a copy of this judgment be
transmitted forthwith to the learned trial court concerned for necessary
information and compliance.
Certified copy as per rules.
(VIVEK RUSIA) (ANIL VERMA)
JUDGE JUDGE
Praveen
