Madhya Pradesh High Court
Permeswardeen Saket@ Lusai vs The State Of Madhya Pradesh on 30 October, 2023
Author: Sheel Nagu
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SHEEL NAGU
&
HON'BLE SHRI JUSTICE ROOPESH CHANDRA VARSHNEY
ON THE 30th OF OCTOBER, 2023
CRIMINAL APPEAL NO.7507 OF 2021
BETWEEN:-
PARMESHWARDEEN SAKET @ LUSAI
S/O SHRI RAMHIT SAKET, AGED ABOUT
30 YEARS, OCCUPATION LABOUR, R/O
BUDGAWAN, P.S. MANGAWAN,
DISTRICT REWA (MADHYA PRADESH)
.....APPELLANT
(BY SHRI NAGENDRA SINGH GAHARWAR - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH,
THROUGH POLICE STATION,
MANGAWAN, DISTRICT REWA
(MADHYA PRADESH)
.....RESPONDENT
(BY SHRI PRAMOD KUMAR PANDEY - GOVERNMENT
ADVOCATE)
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This appeal coming on for hearing this day, Justice Roopesh
Chandra Varshney passed the following:
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Signed by: ANURAG SONI
Signing time: 03-11-2023
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2
JUDGMENT
CONTEXT
This appeal filed under Section 374(2) of the Cr.P.C. takes
exception to the judgment dated 23/11/2021 passed by VIII
Additional Sessions Judge, Rewa, District Rewa in Sessions Trial
No.600263/2014, whereby the appellant has been held guilty for
committing offence punishable under Section 302 & 323 of I.P.C.
and is directed to undergo sentence of life imprisonment with
Rs.5,000/- as fine and R.I. for six months with fine of Rs.500/-
respectively with default stipulation.
FACTS
2. Facts of the case, in brief, are that on 30.04.2014 a dispute
arose between complainant Butan Saket (PW-2) and wife of
appellant/accused-Parmeshwardeen Saket on a petty issue of stealing
slippers. Thereafter, on 01.05.2014 appellant/accused came to the
house of complainant Butan Saket (PW-2) with lathi and started
hurling abuses, whereon complainant asked him not to do so. On
that, appellant/accused gave a blow of lathi on the head of
complainant and another blow on the wrist of her right hand, due to
which blood started oozing. On hearing hue and cry of the
injured/compalnant, her father-in-law Ramsiya Saket (deceased)
came to intervene. At that point of time appellant gave a lathi blow
on the head of Ramsiya Saket, which landed on his head and blood
started oozing. On an information, a case at Crime No.189/2014
under Section 294, 323, 506 of the IPC was registered at Police
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Station Mangawa. District Rewa. Injured was sent for medical
examination at Primary Health Centre, Mangawa and thereafter was
referred to SGMH, Rewa for higher medical treatment. Since in the
medical report, doctor opined grievous injury, therefore, on
10.05.2014, Section 326 IPC was added. On 18.05.2014, during
treatment, Ramsiya Saket died, whereon on receipt of merg diary
from SGMH Rewa, Section 302 IPC was also added. Body was sent
for post-mortem vide Ex.P-15 and post-mortem report was received
vide Ex.P-20. During Investigation spot map was prepared.
Statements of injured and witnesses were recorded. The
appellant/accused was taken into custody on 11/05/2014 vide Ex.P-
16 and at the instance of appellant the alleged lathi which was used
in the incident was seized in front of witnesses namely
Ramshiromani and Rambali Saket vide Ex.P-6. From the place of
incident, blood stained soil, plain soil (Ex.P-7) and on being
produced by complainant Butan Saket T-Shirt of injured Ramsiya
Saket containing blood stains were seized vide Ex.P-8. Blood
stained soil, plain soil, T-Shirt of injured Ramsiya Saket containing
blood stains and lathi seized at the instance of accused were sent for
chemical examination to the Forensic Science Laboratory, Sagar
vide Ex.P-19, from where report (Ex.P-18) was received. After
investigation, challan was filed before the learned Judicial
Magistrate First Class, Rewa, who after registration of the Criminal
Case No.2049/2014 committed the case to the learned 8th Additional
Sessions Judge, Rewa, District Rewa.
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2.1 Learned Court below framed the charges under Sections 302,
294, 323, 506 Part-II of the IPC against the accused/appellant, who
abjured his guilt and contended that he has not committed any
offence and has been falsely implicated in the case and pleaded for
trial.
2.2 Prosecution examined as many as 13 witnesses, including Dr.
P.S. Gaharwar (PW.1), complainant Butan Saket (daughter-in-law of
deceased) (PW.2), wife of deceased Duasiya Saket (PW.3), son of
deceased Heeralal Saket (PW.4), Head Constable Rajendra Singh
(PW-6), Head Constable Rajendra Prasad Mishra (PW-10), T.I. Asif
Iqbal (PW-11), Dr. S.K. Pathak (PW-12) and Dr. Brijesh Singh
(PW-13). The prosecution has also exhibited documents, which have
been marked as Exhibits-P/1 to P/21, whereas the appellant/accused
examined Kalawati Saket (DW-1) in his defence.
2.3 The learned Trial Court after evaluating the evidence,
pronounced the impugned judgment dated 23/11/2021 and held the
appellant guilty for the offence punishable under Sections 302 & 323
of IPC and sentenced him to undergo life imprisonment with fine of
Rs.5,000/- and R.I. for six months with fine of Rs.500/- respectively
with default stipulations. Being aggrieved by the impugned
judgment, appellant preferred this appeal.
CONTENTIONS
3. Learned counsel for the appellant submitted that the learned
Court below has passed its judgment of conviction against the
appellant only upon the statements of complainant Smt. Butan Saket
(PW-2), Duasiya Saket (PW-3) and Heeralal Saket (PW-4) but their
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testimonies are full of contradictions, omissions and improvements
however ignoring the said aspect, learned Court below has convicted
the appellant.
3.1 The eyewitnesses of the incident i.e. Butan Saket (PW-2) and
Dusaiya Saket (PW-3) are close relatives of the deceased, therefore,
the trial Court ought to have scrutinized the testimony with great
caution and accordingly submits that the impugned judgment of
conviction and sentence is not sustainable. He further submits that
there was no previous enmity of the appellant/accused with the
deceased.
3.2 Learned counsel for the appellant drew the attention of this
Court towards statement of Chief Medical Officer, Dr. S.K. Pathak
(PW-12) who conducted the postmortem of the deceased. It is
submitted that during postmortem Dr. S.K. Pathak (PW-12) found
only one injury on frontoparietal region, which shows that the single
lathi blow was given in a spur of moment, which was caused without
there being any intention or motive to cause death.
3.3 The finding of the learned Trial Court has also been assailed
on the ground that the rival parties are close relatives and only upon
a minor dispute of stealing slippers, the incident took place. There
was no motive and intention of the accused/appellant to kill
deceased Ramsiya Saket. The injury sustained by deceased on his
head in the incident is said to have been caused by using a stick and
the prosecution has failed to prove the guilt of the appellant/accused
beyond reasonable doubt. Thus, necessary ingredients for attracting
offence under Section 302 of IPC are missing. Learned counsel for
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the appellant further submits that even if the whole prosecution story
is believed to be true, then also no offence under Section 302 of the
IPC is made out and at the most offence under Section 304 of the
IPC would be made out against the appellant because the incident
occurred suddenly without any intention or premeditation to cause
death of the deceased. Learned counsel for the appellant further
submits that in the aforesaid circumstances, the case of the appellant
falls within the Exception 4 to Section 300 of the IPC. In this
backdrop, the contention of learned counsel for the appellant is that
the impugned judgment may be interfered with by modifying the
conviction of appellant to Section 304 Part-I of IPC.
3.4 Learned Government Advocate appearing for the
respondent/State has argued in support of the impugned judgment
and stated that the finding of conviction and sentence of the learned
Trial Court is based on legal evidence and is in accordance with law.
No interference is required in the impugned judgment, hence, the
appeal be dismissed.
4. We have heard the contentions of learned counsel for the rival
parties and perused the record.
FINDINGS
5. It is true that the prosecution has examined 13 witnesses and
the learned trial Court has based its judgment on the evidence of
complainant Butan Saket (daughter-in-law of deceased) (PW.2),
wife of deceased Duasiya Saket (PW.3), son of deceased Heeralal
Saket (PW.4), but perusal of their testimonies do not prove that there
was any premeditation to commit murder. None of the said witnesses
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has said anything about pre-existing dispute of stealing slippers,
whereas Duasiya Saket (PW.3) and Heeralal Saket (PW.4), who are
respectively wife and son of the deceased, were supposed to know
the real dispute between the two.
5.1 From bare perusal of impugned judgment, it is clear that the
learned Court below has not cared to consider evidence of the
aforesaid three witnesses from the angle of pre-existing dispute of
stealing slippers which was required just with a view to test the
requisite ingredient about the intention or premeditation, but the
learned Court below has failed to consider this aspect of the matter
and has also not recorded any finding regarding the intention or
premeditation. On the contrary from the testimonies of the said
witnesses as well as from the findings of the learned Court below, it
is clear that the incident took place due to small dispute of stealing
the slippers and certainly the act was done in heat of passion.
Further, there appears only one injury on the head of the deceased
with the use of bamboo stick (lathi), which has been seized at the
instance of appellant vide seizure memo (Ex.P/6).
5.2 From the statement of aforesaid witnesses, it is established that
the incident took place in heat of passion as the accused/appellant
got annoyed due to dispute arose upon stealing of slippers and as a
result of which accused appellant assaulted with lathi on the head of
the deceased.
5.3 In the instant case, in our considered opinion, the prosecution
could not establish a prearranged intention of the accused/appellant
that he was having knowledge that the act which he has committed
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will definitely cause death. Thus, necessary ingredients for attracting
Section 302 of the IPC are absent.
5.4 In view of the aforesaid discussion, we come to the conclusion
that the appellant was the author of the injuries caused to the
deceased but, now the question arises as to whether the appellant can
be held guilty under Section 302 of IPC or not ?
5.5 Before dealing with this aspect, we deem it proper to consider
the judgments on this point. In Budhi Singh vs. State of Himachal
Pradesh, (2012) 13 SCC 663, the Apex Court held as under :-
"25. As we have discussed above, premeditation and
intention to kill are two vital circumstances amongst others
which are to be considered by the Court before holding the
accused guilty of an offence under Section 302 or 304 IPC. At
the cost of repetition, we may notice that from the prosecution
evidence, it is not established that the accused had the
intention to kill the deceased or it was a premeditated crime.
The learned counsel appearing for the State has contended that
the very fact that the accused had come out with a tobru
completely establishes the intention to kill and, thus, the
offence would fall under Section 302 IPC. It cannot be
disputed that the accused came out with a tobru but, at the
same time, it is also clear that this is the most easily available
weapon in that part of the hills and is used regularly by the
communities. Beyond this factor, there is no evidence of
animosity, premeditation or intention to kill. The accused did
give a blow by tobru on the head of the deceased which
proved fatal. This was result of the grave and sudden
provocation where father of both the deceased and the accused
was being abused, assaulted and ill-treated by the deceased,
who was in a drunken state.
26. Thus, in the facts of the present case, a sudden and
grave provocation took place which would bring the offence
within the ambit of exception 1 of Section 300 IPC and hence
under Section 304 Part I IPC as the accused had caused such
bodily injury to the deceased which, to his knowledge, was
likely to cause death as he had inflicted injuries on the head of
the deceased. Having held the accused guilty of an offence
under Section 304 Part I IPC, we award the sentence of 10
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years rigorous imprisonment and to a fine of Rs.5,000/- in
default thereto to undergo further imprisonment of six
months."
5.6 Reference may be made to a judgment delivered by Hon'ble
Apex Court in the case of Udiya vs. State of Madhya Pradesh,
(2019) 15 SCC 65, which reads as under :-
"4. However, we are inclined to accept the plea and
contention that the present case would fall under Exception 4 of
Section 300 IPC. This is not a case of premeditated attack or
violence actuated by a motive and previous feud. It was a case
of sudden fight in which the two brothers got involved and in
the grapple the appellant had picked up a stone and had hit the
deceased Nakuda. Birji (PW-3) has testified that Jeevni (PW-1)
had come to his house and stated that the appellant and Nakuda
were fighting. Similar assertion was made by Laxman (PW-4)
who has stated that Jeevni (PW-1) had informed that the two
brothers were fighting and that they must separate them.
Appellant had not come armed to the spot with a weapon of
offence. No witness has testified as to any past enmity and
acrimony between the two brothers. In fact, Jeevni (PW-1) had
stated that earlier a civil suit had been filed by her deceased
husband and the appellant against two other persons and that
there was no previous enmity between the two brothers though
they sometimes used to quarrel and thereafter would become
friendly. When Jeevni (PW-1) had approached the deceased
Nakuda, he was in a position to speak and had stated that the
appellant had given him a beating with a stone, albeit he did not
give any reason for the violence. Post Mortem Report no doubt
refers to fracture of the third and fourth rib but these could have
been caused when Nakuda had fallen down. No external
injuries were present and noticed in the rib area. Laxman (PW-
4) has deposed that they had proceeded to the appellant's
house. Appellant, who was present, was asked to come out and
was thereupon confronted and informed that Nakuda had
expired and they would be filing a police report. Then, the
appellant on the pretext of easing himself had fled from the
spot. This would indicate that the appellant was not aware that
he had killed his brother, Nakuda. (Even otherwise, there is
hardly any evidence to suggest and show that the injuries
caused were intended, so as to indicate intention of causing
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bodily injury as is sufficient in the ordinary course of nature to
cause death).
5. Accordingly, for the reasons stated above, we would
convert the conviction of the appellant from Section 302 to
Part-I of Section 304 IPC. On the question of sentence, we are
informed that the appellant has already undergone rigorous
imprisonment for over six years, prior to his release on bail, as
directed vide order dated November 30, 2009. The offence was
committed in the year 1999. In the aforesaid circumstance, we
are inclined to modify the sentence to the period already
undergone, which would include default rigorous imprisonment
for a period of one month in lieu of fine of Rs.1,000/-."
5.7 In Buddu Khan Vs. State of Uttarakhand, (2009) 12 SCC
260, the blow had arisen out of a sudden fight. Assault was made by
picking up a brick and inflicting single blow. The conviction was
converted from Section 302 of IPC to Section 304 Part I of IPC.
5.8 Apex Court in a recent judgment of Jugut Ram Vs. State of
Chhattisgarh, (2020) 9 SCC 520, opined that lathi is an item
ordinarily carried by the villagers of this country and is linked to
their identity. This is trite and also held in Jugut Ram (supra) that
the circumstances, manner of assault, nature and number of injuries
needs to be considered to decipher the intention or knowledge as the
case may be. In the said judgment, the Apex Court considered its
previous judgments on the point.
5.9 It is clear from the entire evidence that has come on record that
initially dispute arose between daughter-in-law of the deceased and
appellant/accused and when deceased reached on the spot to
intervene the dispute, appellant/accused also assaulted the deceased
with lathi on his head, which resulted into the death of deceased.
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5.10 In view of the aforesaid discussion, the law discussed above
and in the existing facts and circumstances of the case, it can be said
with all certainty that the accused/appellant had intention to cause
death of the deceased.
5.11 As noticed above, the appellant was not having any enmity
with the deceased. No deadly weapon was used. Considering the
aforesaid, in our opinion, the argument of learned counsel for the
appellant has substantial force that necessary ingredients for
attracting offence under Section 302 of IPC are missing, therefore,
we set aside the impugned judgment to the extent appellant was held
guilty under Section 302 of IPC.
5.12 From perusal of statements of eyewitness i.e. Butan Saket
(PW-2) and Dusaiya Saket (PW-3), it is clear that the appellant came
armed with lathi to the house of complainant-Butan Saket, abused
her and also assaulted on her head with lathi and when deceased
came to rescue her, appellant gave a lathi blow on the head of the
deceased, which is sufficient to held the that the appellant gave a
lathi blow on the head of the deceased with intent to kill him.
5.13 As the injury caused to the deceased was deliberate, but was
not sufficient in the ordinary course of nature to cause death of
deceased, the case would fall squarely within the ambit of 304 Part-I
of IPC.
5.14 In view of above, the conviction of appellant shall be treated to
be under Section 304 Part I of the IPC and he is directed to suffer jail
sentence of 10 years with fine of Rs.5,000/-, in default of payment
of fine, he is sentenced to undergo R.I. for two months. However,
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the part of impugned judgment so far as it relates to conviction of
appellant under Section 323 of the IPC is hereby affirmed.
5.15 With aforementioned modifications, the judgment and
sentence dated 23/11/2021 passed by VIII Additional Sessions
Judge, Rewa, District Rewa in Sessions Trial No.600263/2014 is
hereby affirmed and the appeal is disposed of.
5.16 Let record of the Court below be sent back alongwith copy of
this judgment to the learned Trial Court for information and
necessary compliance.
(SHEEL NAGU) (ROOPESH CHANDRA VARSHNEY)
JUDGE JUDGE
as
Signature Not Verified
Signed by: ANURAG SONI
Signing time: 03-11-2023
16:43:53
