Madhya Pradesh High Court
Durjan Singh Gond vs The State Of Madhya Pradesh on 27 May, 2024
Author: Vivek Agarwal
Bench: Vivek Agarwal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 27 th OF MAY, 2024
CRIMINAL APPEAL No. 57 of 2013
BETWEEN:-
CHAIN SINGH S/O BAJRAHA SINGH GOND, AGED
ABOUT 20 YEARS, VIL. SACHARAHA P.S. RAJENDRA
GRAM ANUPPUR (MADHYA PRADESH)
.....APPELLANT
(BY SHRI PARAS JAIN - ADVOCATE )
AND
THE STATE OF MADHYA PRADESH TH:P.S. BAJAG
DINDORI (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MANAS MANI VERMA- GOVT. ADVOCATE FOR
RESPONDENT/STATE)
CRIMINAL APPEAL No. 123 of 2013
BETWEEN:-
DURJAN SINGH GOND S/O MARU SINGH GOND, AGED
ABOUT 32 YEARS, VILL SACHRAHA P.S. RAJENDRA
GRAM (MADHYA PRADESH)
.....APPELLANT
(MS. SARITHA ACHARY- ADVOCATE)
AND
THE STATE OF MADHYA PRADESH P.S. BAJAG
(MADHYA PRADESH)
.....RESPONDENTS
Signature Not Verified
Signed by: PARMESHWAR
GOPE
Signing time: 5/31/2024
7:10:44 PM
2
( SHRI MANAS MANI VERMA- GOVT. ADVOCATE FOR
RESPONDENT/STATE).
This appeal coming on for hearing this day, Justice Vivek Agarwal
passed the following:
JUDGMENT
This appeal is filed under Section 374(2) of Code of Criminal
Procedure,1973 being aggrieved by judgment dated 05-12-2012 passed by the
learned Additional Sessions Judge, Dindori in Sessions Trial No. 42/2012
whereby appellants - Durjan Singh and Chain Singh have been convicted under
Section 452/34 of IPC and sentenced to RI for 3 years and fine of Rs. 200/-
with default stipulations of 6 months RI. Similarly, they have been convicted
under Section 307/34 of IPC and sentenced to RI for 5 years and fine of Rs.
300/- with default stipulation of 6 months RI. They have also been convicted
under Section 302/34 of IPC with life imprisonment and fine of Rs. 500/- with
default stipulation of 1 year RI. They have also been convicted under Section
342/34 of IPC and sentenced to RI for 6 months and fine of Rs. 100/- with
default stipulation of 1 month RI respectively. All the sentences are to run
concurrently.
2. As per the prosecution story, complainant- Kaushalya is the wife of
Buddu Singh. Their daughter Shrimati Bai had made Durjan Singh appellant as
her husband. Thereafter, there was some dispute when Shrimati Bai had filed a
case against Durjan Singh. Shrimati Bai started living with her parents. On 10-
02-2012 at about 8:00 PM, when Buddu Singh was having his dinner the door
of the house was opened, then the accused Gurjar had come with a boy to their
house and tried to peep inside. When Buddu Singh asked Gurjar as to why he is
peeping inside their house then both the persons i.e. Durjan Singh and an
unknown person entered their house and started fighting with her husband
Buddu Singh. Durjan Singh exhorted that he will finish Buddu Singh and after
saying so, he assaulted Buddu Singh with an axe on the right leg, knee and left
cheek. They all started beating. When complainant-Kaushalya Bai came to
intervene, she was also hit by an axe on her forehead, left eye, left shoulder and
left wrist. They all started bleeding.
3. According to the complainant, both the complainant-Kaushalaya Bai
and her husband had fallen unconscious. When complainant gained
consciousness, they found that the door was locked from outside. She opened
the window and shouted for help then Chhatarsingh, Sukhram and her son
Faggu came and opened the door and thereafter, report was lodged against
Durjan Singh and an unknown person under Sections 452, 307, 342,34 IPC
registered under Crime No. 39/12. Copy of Dehati Nalishi is Ex.P/24 was sent
to police station on the basis of which, FIR Ex. P/18 was recorded registering
Crime No. 39/12. The FIR is named against Durjan Singh and an unknown
person. Injured was sent to the hospital for treatment where Buddu Singh
succumbed to his injuries and died on 11-02-2012.
4. MLC report of Buddu Singh is Ex. P/1, in which it is mentioned that
he had incised wound measuring 5"x1" on the upper side of right knee caused
with hard and sharp object. There was an another incised wound measuring
4.5"x 1" on the lower side of the right knee. There was another incised would
measuring 5"x1" on the left hand palm of the injured Buddu Singh. There was
abrasion measuring 2"x1" on the left side of the cheek. The doctor opined that
the injury Nos. 1, 2, and 3 were grievous in nature and Injury No. 4 was simple
in nature. Author of Ex.P/1 is PW-1.
5. Similarly, Kaushalya Bai was also examined and her MLC is Ex. P/2
proved by PW-1 Dr. Devendra Markam and he noted that there was incised
wound measuring 5cms x 2cms on the left side of hand. Another incised wound
measuring 4cms x 2cms is on the left side of the forearm. Abrasion measuring
2cms x 1cms is on the left shoulder. Patient had come for hospitalisation at
11:30 PM. The doctor opined that the Injury No. 1 &3 were simple in nature
and opinion in regard to injury No. 2 could be given after x-ray. After x-ray (
Ex.P/6), the doctor opined that there was a fracture of radius and ulna bones of
left hand. The postmortem was carried out and the report of postmortem is Ex.
P/5, in which cause of death of Buddu Singh is mentioned as Cardio-
respiratory failure due to hemorrhagic shock as a result of excessive
hemorrhage ( hypo-volumic shock).
6. Ms. Saritha Acharya- learned counsel for the appellant-Durjan Singh
Gond and Shri Paras Jain- learned counsel for the appellant-Chain Singh submit
that it is a false case which has been cooked up against the present appellants.
As far as Dehati Nalishi (Ex. P/12) is concerned, there is no mention of any
overt act on the part of Chain Singh. All the overt acts, be it in relation to the
injury cause to the deceased Buddu Singh or to injured- Kaushalaya Bai are
attributed to appellant-Gurjar Singh. Chain Singh has been falsely implicated.
Chain Singh is innocent. His identification is delayed and his identification
looses its significance because Kaushalya Bai (PW-8) admits in her paragraph-
13 that after one month of the incident, the police had called her for
identification of Chain Singh and the proceedings were drawn by the Munshi.
She had identified Chain Singh after seeing his face and on the completion of
the proceedings, she had put her thumb impression, which is contained in
Annexure- P/15.
7. In paragraph-14, Kaushalya Bai (PW-8) admits that at time of
identification, Chain Singh was handcuffed. Thus, it is evident that the
proceedings of identification were not independent and a person was brought in
handcuffed state and there was neither mixing of persons of same shape and
size to give an opportunity to the witness to identify the correct persons from
amongst 4-5 persons of the same dimensions.
8. It has also come on record that the Executive Magistrate, who carried
out the identification parade too, has not been examined before the court of law,
and, therefore, identification of the Chain Singh becomes doubtful and in view
of the fact that no overt act has been attributed to Chain Singh, his presence
becomes doubtful so also, the sentence handed over to him is without
appreciation of facts and circumstances of case. Thus, Chain Singh deserves
to be acquitted of the charges under Sections 302/34, 452/34, 307/34 and
342/34 of IPC he is hereby honourably acquitted of the charges. His bail bonds
be discharged. The fine amount if deposited be refunded to the appellant-Chain
Singh.
9. As far as Durjan Singh Gond is concerned, he is the son-in-law of
complainant and her husband Buddu Singh. Their daughter Shrimati Bai entered
into a wedlock and as per tribal customs, it is accepted that Durjan Singh is her
husband. It is also not in dispute that Shrimati Bai had filed a complaint against
Shri Durjan Singh to obtain maintenance. There was a talk of compromise going
on between the parties and is admitted by star witness Kaushalya Bai (PW-8).
10. Kaushalya Bai has given contradictory statements. At earlier point of
time, she deposed that the talks of compromise has failed but, later on, she
deposed that compromise was accepted by their family but, Durjan Singh
backed out and ran away. Notwithstanding this, the evidence of Shrimati Bai
(PW-9) is relevant where she deposed that Durjan Singh had killed her father
and injured her mother. She admits that Durjan Singh is not her duly married
husband but, Durjan Singh has made her as his keep. Name of his first husband
is Mahesh. She also admits that she had a girl child aged about 10 years from
Mahesh. She also had one year daughter from Durjan. She also admits that there
was no arrangement of light at the place of incident.
11. Faggu Singh (PW-11) is brother of Shrimati Bai. In paragraph-2 of
his Examination-in-Chief, he admits that Durjan Singh has stayed at their place
for two days prior to the incident. After two days of his going from their home,
he has caused that incident. In paragraph-6, this witness admits that it was
decided that after two days, he will take their sister Shrimati Bai and Shrimati
Bai will withdraw the case which she has filed before the Court. Faggu Singh
(PW-11) in paragraph-9 admits that there was no arrangement of light at the
place of incident. He also admits that there was no arrangement of light at their
residence. He admits that his mother had not informed him that she had fallen
unconscious after scuffle. She had also not informed him that after gaining
consciousness, she opened the window and called for help when villagers
opened their gate.
12. In Lachman Singh vs. State of Haryana (2006) 10 SCC 524, it
is held by the Apex Court that the accused party and victim had worked
themselves into a fury on account of verbal altercation. The accused was guilty
under Section 304 part 1 r/w Section 34 of IPC and not under Section 302 of
IPC. The Apex Court noted that sometimes it becomes very difficult as to
whether a person is liable under Section 325 of IPC for causing grievous hurt or
under Section 304 of IPC for culpable homicide not amounting to murder when
injury results in death of the victim.
13. In Sompal Singh and Anr. vs. State of Uttar Pradesh (2014) 7
SCC 316, the Apex Court has held that when injuries are beyond 'hurt which
endanger life' and clearly fall in the category of 'injuries as are likely to cause
death' even though each injury may not be individually sufficient to cause death
then in such a fact situation, the conviction of the appellant as recorded by the
High Court under Section 304 part 1 of IPC was upheld.
14. In the present case, the incident took place within the confines of
house of the complainant. Admittedly, Dr. Devendra Markam (PW-1) has found
the Injury Nos. 1,2 and 3 on the non-vital part of the body of the deceased
Buddu Singh. Though, he has termed injuries to be of grievous nature but, it has
not been pointed out that any of the injuries were sufficient to cause death in
ordinary course of nature. Therefore, when examined in the light of law laid
down by the Apex Court in Sompal Singh (supra), the injuries falling in the
category of those likely to cause death will help the appellant to get his
sentences converted to one under Section 304 Part 1 of IPC.
15. In view of the legal position of the facts, the impugned judgment is
modified to be one of conviction under Section 304 Part-1 in place of Section
302 r/w Section 34 of IPC.
16. Appellant- Durjan Singh is in custody since 12-03-2012 till date and
he has already spent 12 years in custody hence, he is sentenced to the period
already undergone by him. He be set at liberty forthwith, if not required in any
other case.
17. In above terms, these appeals are disposed off.
18. Record of the court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
PG
