Madhya Pradesh High Court
Subham Purviya vs The State Of Madhya Pradesh on 5 August, 2025
Author: Vivek Agarwal
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:36285
1 CRA-2586-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 5 th OF AUGUST, 2025
CRIMINAL APPEAL No. 2586 of 2023
AJAY @ AJJU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Rajkumar Raghuwanshi - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the
respondent/State.
WITH
CRIMINAL APPEAL No. 2897 of 2023
SUBHAM PURVIYA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Ajay Kumar Jain - Advocate for the appellant.
Shri Manas Mani Verma - Government Advocate for the
respondent/State.
ORDER
Per: Justice Vivek Agarwal
These Criminal Appeal are filed by the appellants under Section
374(2) of Cr.P.C. being aggrieved of the judgment dated 25.01.2023 passed
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by learned 1st Addl. Sessions Judge, Pipariya District Narmadapuram in S.T.
No. 62 of 2021, whereby learned Trial Court has convicted both the
appellants namely Ajay @ Ajju (Appellant in CRA No. 2586 of 2023) and
Shubham Purviya (Appellant in CRA No. 2897 of 2023) under Section 302
IPC and under Section 302/34 of IPC respectively and sentenced them with
life imprisonment and fine of Rs.3000/- with default stipulations of S.I. for
three months.
2. It is submitted by learned counsel for the appellants that as far as
Ajay @ Ajju (Appellant in CRA No. 2586 of 2023) is concerned, there are
general and omnibus allegations and merely being in company of the main
assailant namely Shubham he will not render him to be guilty of offence
under Section 302 read with Section 34 of IPC. In as much as, incident took
place all of sudden. There was no pre-meditation or pre-consultation
between the two accused persons and therefore, as far as Ajay @ Ajju
(Appellant in CRA No. 2586 of 2023) is concerned, it is a fit case for
acquittal.
3. Shri Ajay Jain, learned counsel for the appellant Shubham
Purviya (Appellant in CRA No. 2897 of 2023) in his turn submits that, as far
as appellant Shubham Purviya is concerned, his case is squarely covered
with the judgment of Supreme Court in the case of Tholan Vs. State of
Tamil Nadu AIR 1984 (SC) 759 equivalent citation (1984)2 SCC 133
wherein under the similar facts and circumstances trial Court converted the
conviction of the appellant from Section 302 of IPC to Section 304 Part-II of
IPC.
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4. Shri Manasmani Verma, learned Government Advocate in his
turn submits that as far as appellant Shubham is concerned, it is evident from
the evidence of the prosecution witnesses who were available on the spot i.e.
Laxmi Narayan (PW-1) that it is not a case of sudden and grave provocation
nor it is a case where conviction can be converted from Section 302 IPC to
Section 304 IPC, especially when Shubham had inflicted a knife blow to the
deceased on his chest which is a vital organ of the body. He placed reliance
on the judgment of Hon'ble Supreme Court of India in the case of Stalin Vs.
State Represented by the Inspector of Police (2020)9 SCC 524.
5. After hearing learned counsel for the parties and going through
the record. Complainant is Laxmi Narayan Vishwakarma (PW-1). He had
appeared before the Police Station Pipariya on 29.05.2021 at 22:48 hrs.,
stating therein that he is resident of Ramvilash Colony, Hathwas Piparia. On
29.05.2021 at about 09:15 p.m. when he was sitting under a tree in front of
the house of Halkevir Raghuvanshi, then Shubham Purviya and Ajay @ Ajju
Purviya had come and asked him, as to why he is sitting in their colony.
Then, he said that he was waiting for his friends Shailendra and Aman, then
Shubham and Ajay entered into an altercation. In the meanwhile, Shailendra
Kushwaha and Aman arrived. Shailendra tried to intervened, then Shubham
Purviya had taken out a knife and had caused injury to the chest of
Shailendra. Allegation is that, Ajay @ Ajju had hit Shailendra with kick. As
soon as, Shailendra had fallen down, both the accused ran away from the
place of the incident. Thereafter, Laxmi Narayan (PW-1) and Aman Sahu
(PW-5) had taken Shailendra to Community Health Center, Pipariya where
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doctors declared him to be dead.
6. In the present case, as far as, postmortem report is concerned, that
has been exhibited as Ex.P-8. It is mentioned in the postmortem report
(Ex.P-8) that, there was a incised stab wound on the left side of chest at mid
clavicular line below the 3rd rib, 08 c.m. from mid of sternum left side.
Wound length is 02 c.m., wound width is 01 c.m. wound is about 08 c.m.
deep. Wound is directed backward, downward and medially. Blood present
all over plural cavity and pericardial cavity. Incised wound over left lung,
upper lobe present, incised wound over left ventricle of heart present. Injury
antemortem in nature, caused by hard and sharp cutting edged object. It is
grievous in nature and sufficient to cause death. Duration of injury within 02
hours prior to death.
7. Dr. Rajkumar Dejwar (PW-11) deposed that he is the person who
was posted as Medical Officer, Community Health Center, Piparia on
30.052021. He had conducted postmortem alongwith Dr. A.K. Agrawal and
Dr. Yogendra Singh Thakur. In para-5 of his cross-examination, he has
admitted that there was a single injury on the body of the deceased and he
died because of this injury alone.
8. Laxmi Narayan (PW-1) is the author of the FIR has narrated the
incident and has clearly mentioned that when Shailendra was intervening in
the altercation, then Shubham had taken out a knife from his waist and had
stabbed him in the chest. Story of prosecution witness that Ajay had hit
Shailendra with a kick is not corroborated by the medical evidence of PW-11
Dr. Rajkumar Dejwar.
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9. It is an admitted fact that incident took place at the spur of the
moment. However, taking the evidence of witnesses on record, it is evident
that there is over implication as far as Ajay @ Ajju is concerned. His
conviction cannot be sustained with the add of Section 34 of IPC in as much
as Section 34 of IPC deals with common intention and provides that if 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.
10. It is a settled law that prosecution has to prove the common
intention and even in absence of an overt act, Section 34 of IPC can be
attracted. In the case of Shyamlal Ghosh Vs. State of West Bengal AIR 2012
(SC) 2539 equivalent citation (2012)7 SCC 646, it is held that common
intention means a pre-oriented 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.
11. It is also settled law as laid down by the Hon'ble Supreme Court
in the case Mrinal Das Vs. State of Tripura (2011)9 SCC 479 that 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 but when these aspects are taken into consideration, we are
of the view that no common intention could be proved by the prosecution as
far as Ajay @ Ajju (Appellant in CRA No. 2586 of 2023) is concerned.
Therefore, we are unable to uphold the conviction of appellant Ajay @
Ajju.
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12. Accordingly CRA No. 2586 of 2023 is allowed . Impugned
judgment of conviction of appellant Ajay @ Ajju is, hereby, set aside. The
appellant Ajay @ Ajju is on bail. His bail bonds are hereby discharged.
13. As far as Shubham is concerned, learned counsel for the
appellant Shri Ajay Jain has been placed reliance on the judgment of
Supreme Court in the case of Tholan Vs. State of Tamil Nadu (supra) . In
this case, Hon'ble the Supreme Court has held that single knife blow,
ordinarily sufficient to cause death, inflicted on chest of the deceased on the
spur of the moment, deceased having no previous dispute with the accused
and his present at the place of the occurrence wholly accidental, even if
Exception I to Section 300 not attracted, held, the requisite intention under
Section 300 absent and therefore, conviction under Section 302 not proper
but the accused having wielded a weapon like knife, he can be attributed
with the knowledge that he was likely to cause injury which was likely to
cause death. Hence, accused must be convicted under Section 304 Part-II
IPC. In the present case, when these facts are taken into consideration, then
it is evident that Hon'ble Supreme Court while deciding the ratio of law in
the case of Stalin (supra) has not taken into consideration the judgment of
Supreme Court in the case of Tholan (supra) . Facts of the present case are
identical with that of Tholan (supra). Only difference is that as per the law
laid down by Supreme Court in the case of Stalin (supra), case will be under
Section 304 Part-I IPC and not under Section 304 Part-II IPC and
accordingly, we modify the conviction of appellant Shubham in CRA No.
2897 of 2023 from under Section 302 IPC to Section 304 Part-I IPC and
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direct him to undergo Rigorous imprisonment for a period of 10 years and
fine of Rs.10,000/- with default stipulation of RI for six months.
14. Accordingly, CRA No. 2586 of 2023 is allowed in part.
15. We have noted that learned trial Court was not conscious of the
proceedings when it has wrongly shown Ex.P-8 i.e. postmortem report to be
proved by PW-2 Tulsi Ram, whereas PW-2 Tulsi Ram has nowhere proved
the postmortem report (Ex.P-8) and it has been in fact proved by Dr.
Rajkumar Dejwar (PW-11). Such mistakes are indicative of gross
carelessness in the conduct of the sessions trial.
16. In above terms, both the appeals are disposed of.
17. The case property be disposed of as per the direction of the Trial
Court.
18. Let record be sent back forthwith.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH)
JUDGE JUDGE
AR
