Madhya Pradesh High Court
Ramesh Kakodiya vs The State Of Madhya Pradesh on 6 February, 2025
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IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DEVNARAYAN MISHRA
ON THE 6 th OF FEBRUARY, 2025
CRIMINAL APPEAL No. 10509 of 2024
RAMESH KAKODIYA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Anshul Tiwari - Advocate for the appellant.
Shri Manoj Kumar Singh - Panel Lawyer for the respondent/State.
JUDGMENT
With the consent of the parties, matter is heard finally at motion
hearing stage.
This Criminal Appeal under Section 374(2) of Cr.P.C has been
preferred being aggrieved by the judgment dated 14.06.2024 in S.T.
No.38/2023 by Ist Additional Session Judge, Betul (M.P.) whereby the
appellant has been convicted for the offence punishable under Section 304
(Part-2) of IPC and sentenced to undergo RI for 05 years with fine of
Rs.500/- with default stipulations.
2. The prosecution case before the trial Court was that on 14.12.2022 at
9 pm, the appellant who is the brother of the deceased, visited the house of
the deceased. Deceased Suman Singh was in his home and his wife
complainant Lalita Kakode (PW-1) was cooking food. Appellant called the
deceased outside the home, on that the deceased came out of his house.
Deceased had to return the money which he had taken from the appellant and
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appellant threatened the deceased that if he did not return the money, he will
kill him. After that the appellant assaulted the victim on his face and head
with iron pipe. On that his both son Shivam Kakodiya (PW-4) and Satyam
Kakodiya (PW-2) reached on the spot and the neighbor Gujar Kumre (PW-6)
also reached there and rescued the victim. After that, appellant ran away
from there. The deceased Suman Singh died at 3 am at night. Information
was sent to Police Station Padhar. S.I. Ravi Thakur (PW-10) in the morning
reached on the spot and recorded Dehati Merg Intimation (Ex.P-1) and
Dehati Nalishi (Ex.P-2), dead body was examined and Naksha
Panchayatnama (Ex. P-5) was prepared. Dead body of the deceased was sent
for postmortem. Spot map was prepared. Appellant was arrested on
19.12.2022 and from his possession, the pipe used in the offence and clothes
that were worn by the appellant at the time of incident, were recovered. After
usual investigation, the challan was filed before the Chief Judicial
Magistrate, Betul. On commitment, the case was submitted before the
Sessions Judge and on transfer, the case was transferred to trial Court.
3. The trial Court framed the charges under Section 302 of IPC and
read over to the appellant. The appellant abjured the guilt and prayed for
trial.
4. The trial Court recorded the statement of the prosecution witnesses,
examined the appellant under Section 313 of Cr.P.C. and after hearing both
the parties passed the impugned judgment and convicted the appellant and
sentenced as stated in para No.1 of the judgment. Hence, this appeal.
5. Learned counsel for the appellant has submitted that there is no eye
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witness in the case as Lalita Kakode (PW-1) has stated that at the time of
incident, she was cooking food, Shivam Kakodiya (PW-4) was also sitting in
the house and his another son Satyam Kakodiya (PW-2) was in the village as
he went to purchase sugar. Prosecution witness Gujar Kumre (PW-6) has not
supported the prosecution case.
6. Learned counsel for the appellant has also submitted that in the
Dehati Nalishi (Ex.P-2) and in the statement of the prosecution witnesses, it
has been stated that iron pipe was used in the offence whereas, the
Investigation Officer has produced the pipe that is made up of plastic having
a nozzle/iron teeth. Thus, iron pipe was not used in the offence. Learned
counsel for the appellant has also submitted that appellant had no intention to
commit the murder of his brother and from these circumstances, the
inference can be drawn only that he caused grievous injuries, therefore,
appellant is not liable for more sentence then for causing the grievous injury
to the deceased that is punishable under Section 325 of IPC, 1860 and has
submitted that the trial Court has wrongly convicted the appellant for the
offence punishable under Section 302 (Part-II) of the IPC and the sentence
imposed on the appellant is disproportionate to the act as there was no
intention to kill his brother. Learned counsel for the appellant has further
prayed that if the appeal is dismissed on the merit, the substantial jail
sentence be reduced to the period already undergone.
7. Learned counsel for the State has supported the judgment passed by
the trial Court and submitted that there is no substance in the appeal, hence,
the appeal be dismissed.
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8. Heard the parties and perused the record.
9. Complainant Lalita Kakode (PW-1) has stated that deceased Suman
Singh was her husband and appellant Ramesh Kakodiya is her brother-in-law
(Jeth). At about 9 pm, she was cooking food and her husband was also in the
home. Her one son Satyam Kakodiya (PW-2) went to grocery shop in the
village and another one Shivam Kakodiya (PW-4) was in the house. The
appellant came and called her husband outside the house (Angan). On that,
her husband asked why he is shouting, on that appellant Ramesh Kakodiya
assaulted the deceased by iron pipe on the front and back side of his head.
The deceased suffered the injuries in head and nose. Hearing noise of
quarrel, wife of the deceased came out of her house and carried her husband
in his house. There was no other person. Due to excessive rain, she was
unable to carry her husband for treatment and she was also not having mobile
phone, hence, she could not inform the police. The village Kotwar informed
the incident and lodged the report in police chowki Padhar. In the morning,
police came and wife of the deceased lodged the Dehati Merg Intimation
(Ex.P-1) and Dehati Nalishi (Ex.P-2). The dead body of the deceased was
examined and Naksha Panchayatnama (Ex.P-5) was prepared. From the spot,
police recovered blood stained soil and simple soil and prepared seizure
memo (Ex.P-6). In the lengthy cross-examination of this witness, no material
omission or contradiction is found.
10. Shivam Kakodiya (PW-4) has clearly stated that the appellant is
his uncle (bade papa ). Deceased was his father. The appellant assaulted his
father Suman Singh by iron pipe, as a result, he died. The incident took place
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at about 8-9 pm. He along with his mother were in the house, appellant
arrived and called his father. On that his father came out from his house, the
appellant assaulted the victim and victim suffered injuries. Shivam and his
mother carried his father inside the house and blood was coming from the
injuries. Appellant returned to his home. As it was raining, they could not
carry their father anywhere and thereafter on the information of Kotwar,
police reached on the spot in the morning.
11. Witness Gujar Kumre (PW-6) has not fully corroborated the
prosecution but has stated that he is the resident of the same village where
the deceased and appellant were residing. Deceased was residing in village
Kuppa along with his family. On the date of incident, it was about 9 pm at
night, he was in front of his house. He heard the noise of shouting from the
house of deceased Suman Singh and saw that the appellant was calling the
deceased Suman Singh to come out of his house and was also abusing the
deceased. On this, he went from the spot to call appellant's brother Shyam
Singh so that he can pacify the dispute but his brother was not found there
and when he returned, he saw that deceased Suman Singh was lying in his
house.
12. Thus, from the statement of these witnesses namely Lalita Kakode
(PW-1), Shivam Kakodiya (PW-4) and Gujar Kumre (PW-6), this fact is well
established that on the date of incident at about 9 pm, the appellant went to
the house of the deceased and was shouting and abusing and also calling the
deceased to come out from his house, on that, the deceased came out of his
house, on this point, there is no doubt. This is also established from the
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statement of the independent witness Gujar Kumre (PW-6) that when he
returned, he saw that deceased was lying in his house.
13. Satyam Kakodiya (PW-2) though tried to be the eye witness but as
he was not on the spot, at the time of incident, he had gone to a grocery shop
of his village to purchase sugar. But just after the incident, he returned and
saw that deceased Suman Singh suffered the injuries on his head and blood
was coming out from the injuries and this witness has also stated that his
father had borrowed Rs.300/- from the appellant and appellant was
demanding that money and in that the incident took place.
14. It has also been brought on record that from the cross-examination
of the prosecution witnesses, there was no previous enmity or quarrel
between the parties. Appellant and deceased were real brothers and before
the incident, they were having a cordial relation and both the parties were
attending family programs in each others house. In this situation, there is no
reason that these witnesses shall falsely implicate the appellant.
15. On the point that deceased was assaulted by pipe. The prosecution
witness Ravi Thakur (PW-10) has stated that he recovered a plastic pipe on
the information of the appellant measuring 26 inch whose circumference was
5 inch, the length of nozzle was 2.5 inch and its circumference was 6.5 inch.
As per seizure memo (Ex.P-9), this pipe was sent for query to medical
officer.
16. The prosecution witness Sandhya Gogu (PW-3) has clearly stated
that she received the letter of query from the Police Station Kotwali, District
Betul and examined the pipe, that was the plastic pipe having a nozzle of iron
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that was 26 inch long and it's radius was 1.5 inch, circumference was 5 inch
and iron nozzle length was 2.5 inch and the length of L side portion was 4
inch and radius was 1.5 inch. She prepared a diagram and showed that from
this pipe, the injuries suffered by the victim may be caused and this pipe was
a deadly weapon and causing injury by that pipe, death of deceased Suman
Singh may be caused.
17. Thus, it is clear that in the incident, the pipe was used as a weapon
of assault. Further, there is an ambiguity in the statement that the pipe was of
iron or plastic and on this point, the prosecution witness has been cross-
examined but it is worth mentioned that at the date of incident, it was night
and raining and one part of the pipe was having nozzle of iron and from the
record, it is also clear that it is the pipe in which optical fiber cable was put
while lying beside the road. In these circumstances, if the prosecution
witnesses had observed it to be iron pipe only on that basis, the evidence of
prosecution witnesses cannot be discarded, when the Doctor has clearly
opined that by that pipe the injury suffered by the victim, may be caused.
18. Doctor Sandhya Gogu (PW-3) has clearly stated that on
15.12.2022, she conducted the postmortem over the dead body and found the
punctured wounds in the left side of the head that was 1.1cm and there was a
contusion all around this injury. Blood was deposited there and when the
scalp was opened, she found that extra dural and sub-dural hemorrhages were
present in the frontal parietal region and stated that the deceased died due to
shock that was originated due to intra cranial bleeding within head and death
was homicidal in nature. No other injury on the body was found.
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19. Furthermore, the prosecution witness has clearly stated that on the
date of incident, it was raining, hence, they could not carry the deceased to
any medical center. It was about 9 pm at night and it was raining but the
village Kotwar informed the police and when the police reached in the
morning, as per Lalita Kakode (PW-1) has informed to S.I. Ravi Thakur
(PW-10) that the appellant assaulted the deceased and the reason of quarrel
was told that the appellant was demanding the borrowed money from the
deceased and when the deceased had not paid the money, the appellant got
annoyed and assaulted the victim/deceased and deceased suffered the injury
and died.
20. Thus, all these circumstances if taken into consideration, it is clear
that it was the appellant only who has caused the death of the deceased
Suman Singh on the date of incident on 14.12.2022 at 9 pm.
21. The trial Court has well considered the nature of the act of the
appellant as there was no intention but the appellant was knowing that it was
probable that by assaulting the victim by the plastic pipe having iron nozzle
may cause the death of the deceased and thus, the trial Court had rightly
convicted the appellant for the offence punishable under Section 304 Part-II
of the IPC. Hence, no ground for interference in conviction of the appellant
under Section 304 Part-II of the IPC is made out.
22. Also considered the point of punishment, the offence under
Section 304 Part-II is punishable up to 10 years of imprisonment or with fine
or with both and looking to the act of the appellant, the trial Court has
already awarded only the 5 years Rigorous Imprisonment and the fine
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amount of Rs.500/-. Thus, the punishment cannot be said to be harsh. Hence,
the order of the trial Court regarding the sentence is also affirmed. Order of
the trial Court regarding the compensation of victim is also affirmed.
23. The trial Court has not passed any order regarding the disposal of
the case property. Hence, it is ordered that case property having no value, and
looking to the fact, the case properties i.e. blood stained soil, simple soil,
clothes of the deceased and appellant and the plastic pipe be disposed by
destroying them.
24. With the above discussion, the appeal is dismissed.
25. The copy of the judgment be sent to the concerned jail authorities
for the information to the appellant.
26. The copy of judgment along with the record of the trial Court be
returned back for information and necessary action, if required.
27. Record of this appeal be consigned to the Record Room.
(DEVNARAYAN MISHRA)
JUDGE
AT
