Baba @ Rajkaran Kushwaha vs The State Of Madhya Pradesh
2024 Latest Caselaw 15936 MP

Madhya Pradesh High Court

Baba @ Rajkaran Kushwaha vs The State Of Madhya Pradesh on 29 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 29 th OF MAY, 2024
                  CRIMINAL APPEAL No. 777 of 2018

BETWEEN:-
1.    BABA @ RAJKARAN KUSHWAHA S/O SHRIBHAN
      KUSHWAHA, AGED ABOUT 41 YEARS, VILLAGE
      PARASWAR P.S. BAHARI (MADHYA PRADESH)

2.    SHRIBHAN KUSHWAHA S/O LATE JAGANNATH
      KUSHWAHA, AGED ABOUT 71 YEARS, VILLAGE
      PARASWAR PS BAHARI (MADHYA PRADESH)

                                                            .....APPELLANTS
(BY SHRI PANKAJ KUMAR PATHAK - ADVOCATE)

AND
1.    THE STATE OF MADHYA PRADESH THROUGH P.S.
      AJK SIDHI (MADHYA PRADESH)

2.    SHIVENDRA BANSAL S/O SHRINATH BANSAL,
      AGED ABOUT 20 YEARS, R/O VILLAGE MYAPUR,
      POLICE STATION BAHARI (MADHYA PRADESH)

                                                           .....RESPONDENTS
(SHRI S. K. KASHYAP - GOVERNMENT ADVOCATE)

      This appeal coming on for orders this day, Justice Vivek Agarwal
passed the following:
                                   ORDER

This appeal is filed being aggrieved of the judgment dated 10th January, 2018 passed by the learned Special Judge under SC/ST (Prevention of Atrocities) Act Sidhi in Special Case No. 39/2016.

The prosecution story in short is that on 12/05/2016, complainant Shivendra Bansal had visited his maternal grandfather Lalmani Bansal along with his mother Terasi Bansal at village Paraswar, Police Station Bahari. At about 4:30 P.M., Ritu and Saahil children of complainant's maternal uncle Shivendra Bansal were filling water at the handpump close to the house of Baba Kushwaha when Shribhan Kushwaha and Baba Kushwaha asked them not to fill the water and started abusing them. After hearing cries of abuses, Terasi Bansal, Shivendra reached the place of incident i.e. handpump and Terasi had said that since there is shortage of water, let water be allowed to be filled as they all should live in coordination.

At this, Shribhan taunted Terasi saying that why she is indulging in Panchayat and started abusing her. He had asked his son Baba to kill Terasi on which Baba had hit Terasi with a stick in his hand.

He had hit twice on her head, as a result of which, Terasi had fallen down at the spot and later on, she was taken to hospital when she died.

Learned counsel for the appellants submits that this is a case of single blow. There is no common intention as far as appellant no. 2 Shribhan Kushwaha is concerned, therefore his conviction under Section 302 with the aid of Section 34 I.P.C. is not made out.

It is also submitted that since it is a case of single blow, therefore, the case will fall within the parameters of Section 304 Part-II I.P.C.

Shri Pathak places reliance on the evidence of PW-7 Dr. Laxman Patel who had conducted postmortem and who had found that there was only one injury on the head measuring 5x1x0.5 cm on the occipital area and according to him, that was the cause of death as there was a fracture beneath that injury.

Placing reliance on the evidence of Dr. Pankaj Tiwari who had given

treatment to deceased Terasi Bansal, it is pointed out that apart from abrasion on left elbow joint measuring 1 cm. x 1/2 cm and another abrasion on left wrist measuring 2 cm. x 1cm. and an abrasion on left leg measuring 1 cm. x 1/2 cm., the major injury which became cause of death was a lacerated wound measuring

51/2 cm. x 1/2 cm. bone deep.

Thus, it is submitted that medical evidence corroborates the fact of single blow and that too all of a sudden, on account of a scuffle which took place. There was neither any premeditation nor any concert and common intention.

Shri S.K. Kashyap, learned Government Advocate submits that PW-1 Shivendra Bansal has categorically deposed that his mother was hit twice by appellant Baba @ Rajkaran Kushwaha and, therefore, case will not fall within the Exception 4 under Section 300 I.P.C. Unless, a case falls under an Exception 4 of Section 300 I.P.C., the conviction cannot be converted from one under Section 302 or 302 read with Section 34 to that of 304 I.P.C.

After hearing learned counsel for the parties and going through the evidence, it is evident that it is a case of single lathi blow. This is medically corroborated from the evidence of PW-7, Dr. Laxman Patel, and, PW-9, Dr. Pankaj Tiwari.

The fourth Exception under Section 300 I.P.C reads 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 the offender's having taken undue advantage or acted in a cruel or unusual manner."

Explanation below Exception 4 to Section 300 reads that 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. T h e 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 one under Section 302 to Section 304 I.P.C.

In view of such facts and taking into consideration the medical evidence which has come on record so also the postmortem report Ex. P-11 in which cause of death is mentioned as hemorrhagic shock due to lacerated wound on skull and fracture of skull bone occipital, this court is of the view that conviction of Baba @ Rajkaran Kushwaha is converted from one under Section 302 to 304 Part-II I.P.C. Since Rajkaran has remained in custody from

13/05/2016 till this date i.e. for more than eight years, his sentence is declared to be undergone subject to depositing fine, if not already deposited. If he is not required in any other case, he may be released from jail.

As far as appellant no. 2 Shribhan Kushwaha is concerned, the learned trial court has convicted him with the aid of Section 34.

Section 34 of I.P.C. provides that act should be done by several persons in furtherance of common intention. It provides that when a criminal act is done by several persons in furtherance of the common intention of all, each of such

persons is liable for that act in the same manner as if it were done by him

alone.

It is a well settled law as held in the case of Shyamal Ghosh Vs. State of West Bengal AIR 2012 SC 3539 that common intention means preoriented plan and acting in pursuance to the plan. Thus, common intention must exist prior to the commission of the act in a point of time. As per the law laid down by the Supreme Court in Mrinal Das and others Vs. State of Tripura AIR 2011 SC 3753 , the burden lies on prosecution to prove that actual participation of more than one person for commission of criminal act was done in furtherance of common intention at a prior concert, being not made out, ingredients of Section 34 are not attracted.

Therefore, conviction of Shribhan Kushwaha with the aid of Section 34 is not made out because in this case, it is found that quarrel had suddenly taken place at the spur of the moment, and therefore conviction of Shribhan Kushwaha S/o Jagannath Kushwaha is set aside.

He is acquitted from the charge under Section 302/34 of I.P.C. His bail bonds be discharged. The fine amount if deposited be refunded to Shribhan

Kushwaha.

The order of the trial court in regard to case property is affirmed. In above terms, the appeal is allowed and disposed of.

Record of the court below be sent back.

     (VIVEK AGARWAL)                                     (DEVNARAYAN MISHRA)
          JUDGE                                                 JUDGE
vy


     VAIBHAV
     YEOLEKAR
     2024.05.31
     15:32:22 +05'30'