Madhya Pradesh High Court
Vishram Singh vs The State Of Madhya Pradesh on 28 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 28 th OF MAY, 2024
CRIMINAL APPEAL No. 1911 of 2013
BETWEEN:-
VISHRAM SINGH S/O UMRAO SINGH LODHI, AGED
ABOUT 60 YEARS, VILL. PADRI P.S. HATTA, DISTT.
DAMOH (MADHYA PRADESH)
.....APPELLANT
(BY SHRI MADAN SINGH - ADVOCATE)
AND
THE STATE OF MADHYA PRADESH TH: P.S. HATTA
DISTT. DAMOH (MADHYA PRADESH)
.....RESPONDENT
(BY SHRI MANAS MANI VERMA - GOVERNMENT ADVOCATE)
This appeal coming on for orders this day, Justice Vivek Agarwal
passed the following order in open Court:
ORDER
On the request of the parties, the appeal is taken up for final hearing.
This appeal is filed under Section 374(2) of the Code of Criminal
Procedure, 1973 being aggrieved of the judgment passed by the IInd Additional
Sessions Judge, Damoh in S.T. No. 41/2007 vide impugned judgment dated
19/07/2013 convicting the appellant under Section 302 of I.P.C. with life
imprisonment and fine of Rs. 1,000/- with default stipulation of six months R.I.
The prosecution story in short is that Lakhan Singh is the deceased. On
15.3.2006 at about 1:30 pm, in Village Padri in front of the shop of Maddu
Lodhi, Vishram Singh armed with Farsa, Makhan armed with Lathi, Munna
Lodhi armed with Farsa, Santosh armed with Lathi, Khoob Singh armed with
Lathi and Govind armed with Farsa started abusing Komal and Heera. When
Komal and Heera raised an alarm then Lakhan had reached there when he was
surrounded by all the accused persons and then Vishram Singh had hit him on
his head as a result of which bleeding started. Makhan had given him a Lathi
blow on the left calf of Lakhan and Santosh had hit him on his back. Pooran
Singh (PW.5) father of Lakhan Singh came forward to save him then Munna
had hit Farsa on his head resulting in bleeding. Govind had also hit Pooran
Singh on his left wrist resulting in bleeding. Khoob Singh had hit Lathi on his
right shoulder. Mukundi had hit Halli Bai (PW.6) on her hand. The accused
were shouting to kill. The incident was seen by Dhanni and Lakhan Singh
Lodhi.
Learned counsel for the appellant submits that Halli Bai (PW.6) was
declared to be hostile. She deposed that she does not know as to who had hit
Lakhan. It has come on record that the incident took place on 15.3.2006 and
Lakhan died on 5.4.2006 during treatment. It is a case of single Lathi blow.
Pooran Singh (PW.5) has also turned hostile and he is also not an eye-witness
to the incident.
Learned counsel for the appellant submits that it is a case of single blow.
It is submitted that an F.I.R. was registered at Police Station Hatta, District
Damoh registering case crime no. 118/06 on 15/03/2006 by victim Lakhan Singh
against several persons including present appellant Vishram Singh and others
namely Malkhan Lodhi, Munna Lodhi, Govindi Lodhi, Santosh Lodhi, Khoob
Singh Lodhi and Mukundi Lodhi.
It is submitted that allegation on present appellant Vishram Singh is of
giving a Farsa blow on the head of victim Lakhan Singh in a fight which had
erupted all of a sudden.
It is submitted that victim was taken to the hospital where he was treated
for about 20 days before succumbing to the injuries and due to formation of
pus etc.
Referring to M.L.C. Ex. P-32, it is submitted that the Doctor who had
only noted one injury namely incised wound measuring 4x1/4 inch bone deep
middle of the scalp vertically placed caused by hard and sharp object. He was
referred to Surgical Specialist/Radiologist at District Hospital Damoh, by the
concerned Block Medical Officer, Dr. R.K. Bharadwaj, Community Health
Centre, Hatta.
Thereafter, referring to the postmortem report Ex. P-35, it is submitted
that the cause of death is mentioned as cardio respiratory failure, as a result of
Pyogenic meningitis. Thus, it is submitted that the cause of death is not directly
attributable to the appellant and if proper treatment would have been given to
the deceased, then he would have survived.
It is also submitted that there was no intention of the appellant to cause
death, in as much as, it is a case of single blow and not that of repeated blows.
Learned counsel for the appellant in support of his contention has
referred to the evidence of PW-17 Dr. R.K. Shrivastava Civil Surgeon, District
Hospital Damoh who certified that Dr. R.K. Bharadwaj died on 10/05/2006. Dr.
R. K. Bharadwaj had examined injured Lakhan Singh on 15/03/2006 where the
injury was noted as referred to above.
Thereafter, Lakhan Singh was referred to the Surgical Specialist, District
Hospital Damoh. His general condition was good. Pulse was 76 per minute
and blood pressure was 110/70. He had identified the signatures of Dr. R.K.
Bharadwaj on Ex. P-32.
Dr. Ashok Jain who conducted postmortem was also examined as PW-
9. He has deposed in his examination and cross-examination that earlier,
operation was performed on injured Lakhan Singh. He had seen unhealed sign
of wound. When he had opened that part during postmortem, he had found
that it was full of pus. He admitted that the cause of death could be the
infection caused to the said incised wound, as a result of which brain had
turned soft. He also admitted that in such kind of injury, if proper treatment is
not given or if the injured himself or his relative, approach him with dirty
clothes, then use of such inappropriate measures may cause infection. He
further clarified in para 8 that in the postmortem report, he has mentioned cause
of death as pyogenic meningitis which means that there was pus formation and
septicemia in the brain, as a result of which pyogenic meningitis was caused.
Reading from this evidence, it is also pointed out that eye-witnesses are
hostile and, therefore, it is a case of acquittal.
Learned Public Prosecutor Shri Manas Mani Verma reading from the
evidence of eye-witness Komal Singh S/o Tatu Singh PW-4, submits that this
witness had seen Vishram Singh using a Farsa to hit Lakhan Singh in front of
galla of Bhaddu Singh.
It is submitted that evidence of this witness Komal Singh has remained
unrebutted. Similarly, it is submitted that another eye-witness is PW-5 Pooran
Singh who is father of deceased Lakhan Singh, his evidence too has also
remained unrebutted and could not be contradicted.
The third eye-witness is Halli Bai PW-6, though she has turned hostile but
at the same time, since evidence of Komal Singh and Pooran Singh have
remained unrebutted, the impugned judgment does not call for any interference.
After hearing learned counsel for the parties and going through the
evidence, it is evident that Komal Singh (PW-4) has clearly deposed that
Lakhan was hit by Vishram with a Farsa on his head. In his cross-examination,
he has admitted that Vishram was abusing in front of Bhaddu Ka Galla when
Lakhan Singh had reached that place from his house. This witness in para 9 of
his cross-examination admitted that at the earlier point of time when case was
contested for accused Govind, Santosh, Makhan Mukundi and Khoob Singh,
that time he had deposed before the court that he was not knowing as to who
had caused injuries to Lakhan.
Similarly, another eye-witness Pooran Singh (PW-5) after mentioning in
his examination-in-chief that when Vishram Singh was stopped from using
abusive language, he had hit Lakhan Singh with a Farsa on his head. but in the
cross-examination admits that his son Lakhan had fallen unconscious and he
was taken on a motorcycle in an unconscious state to the police station. In para
6 of his cross-examination, he has admitted that after facing the injury, Lakhan
remained unconscious for 17 days and died in an unconscious state.
Therefore, the F.I.R. lodged by Lakhan Singh becomes doubtful.
PW-16 V.P. Upadhyay S/o Gourishankar Upadhyay retired A.S.I. had
mentioned that he had written F.I.R. Ex. P-35. He had recorded statements of
deceased and that he was injured at that point of time. He has categorically
deposed that since Lakhan Singh was talking, therefore, he was not required to
take permission of the Doctor to record his statements Ex. P-37 under Section
161 Cr.P.C.
In view of such facts and also the fact that Dr. Ashok Jain (PW-9) who
had conducted postmortem has admitted in his cross-examination that if injuries
would have been nursed properly, then life of Lakhan Singh could have been
saved and he died of infection, that resulted in formation of pus and Septicemia
resulting in pyogenic meningitis.
There is no suggestion to him that Lakhan Singh was since unconscious,
therefore, his statements could not have been recorded. Therefore, the
statement of father of deceased Lakhan Singh namely Shri Pooran Singh is not
corroborated that at the time of lodging of the F.I.R., Lakhan Singh was
unconscious and that is not mentioned even in the statements of Dr. R. K.
Shrivastava (PW-17) as per whom Dr. Bharadwaj had carried out the M.L.C.
Thus, it cannot be said that the lodging of F.I.R. was an afterthought or
was not lodged by deceased Lakhan Singh.
However, it is evident from the evidence of the eye-witnesses that it is a
case of single blow. There is no contradiction to this evidence.
Thus, in view of the evidence of Dr. Ashok Jain (PW-9), it is evident that
it was a case of single blow which is corroborated by the evidence of the eye-
witnesses.
It is also true that the deceased died of pyogenic meningitis caused due
to septicemia and pus formation after twenty days of the incident.
Exception-4 of Section 300 of the Indian Penal Code, 1860 is that
culpable homicide is not murder if it is committed without premeditation in a
sudden fight, in the heat of passion upon a sudden quarrel and without
offfender's having taken undue advantage or acted in a cruel or unusual manner.
As per explanation given below Exception-4 of Section 300, it is immaterial in
such cases which party offers the provocation or commits the first assault.
When this fact is taken into consideration, the Supreme Court in Dilip
Kumar Mondal & Another versus State of West Bengal (2015) 3 SCC
433 has held that when the incident was not premeditated and scuffle between
the parties led to the causing of injuries to the deceased and considering the
circumstances of the case, the offence would fall under Section 300 Exception-
4 and the conviction of appellant(s) is to be modified and altered under Section
304 Part-II of the I.P.C.
The Supreme Court in Bawa Singh versus State of Punjab 1993
Supp (2) SCC 754 has held that two injuries caused by appellant individually
not sufficient to cause death and the deceased died seven days after in hospital.
The doctor opining that the death caused due to shock and hemorrhage
resulting from both the injuries collectively, in absence of medical evidence that
the injury caused by the appellant was individually sufficient in the ordinary
course of nature to cause death, held, no intention can be attributed to the
appellant to cause death and, therefore, the Supreme Court convicted the
appellant under Section 304 Part-II instead of Section 302 of the I.P.C.
The Supreme Court in Bawa Singh Vs. State of Punjab (supra) has
held that single blow on head and lack of cogent evidence of the eye-witnesses
that accused shared a common intention to commit murder has taken these
factors to be sufficient to commute a sentence from Section 302 to Section 304
I.P.C.
Accordingly, we are of the opinion that this case will fall under Section
304 Part-I of the I.P.C and not under Section 302 of I.P.C. The sentence of the
appellant is altered to that of custody period undergone as he has already spent
more than ten years in custody. He was in custody from 8/09/2009 to
8/04/2010 and, thereafter, from the date of judgment i.e. 19/07/2013 till date.
Thus, he has actually suffered incarceration of more than 11 years.
Thus, the appeal is allowed and disposed of.
If appellant is not required in any other case then he may be released
from prison forthwith.
The order of the trial court in regard to case property is affirmed.
Record of the court below be sent back.
(VIVEK AGARWAL) (DEVNARAYAN MISHRA)
JUDGE JUDGE
vy
