Madhya Pradesh High Court
Jai Prakash Dubey @ Bablu vs The State Of Madhya Pradesh on 10 February, 2025
Author: Vivek Rusia
Bench: Vivek Rusia, Anuradha Shukla
NEUTRAL CITATION NO. 2025:MPHC-JBP:6693
1 CRA-9403-2023
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SMT. JUSTICE ANURADHA SHUKLA
ON THE 10th OF FEBRUARY, 2025
CRIMINAL APPEAL No. 9403 of 2023
JAI PRAKASH DUBEY @ BABLU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Prakash Upadhyay -Senior Advocate with Shri Joyveer Singh
Saini -Advocate for the appellant.
Shri Akshay Namdeo- G.A for the respondent/State.
WITH
CRIMINAL APPEAL No. 9516 of 2023
BABOL @ RAJEEV BAHELIYA @ JADGA
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Krishna Kumar Gautam - Advocate for the appellant.
Shri Akshay Namdeo -G.A for the respondent/State.
CRIMINAL APPEAL No. 9722 of 2023
RAVI ALIAS HEMANT TIWARI
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Anvesh Shrivastava -Advocate for the appellant.
Shri Akshay Namdeo -G.A for the respondent/State.
Signature Not Verified
Signed by: TARUN KUMAR
SALUNKE
Signing time: 14-02-2025
16:14:00
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ORDER
Per: Justice Vivek Rusia
Today these appeals have been listed for suspension of sentence.
2. Instead of hearing on the application for suspension of jail sentence
and grant of bail of appellants (I.A No. 20931/2023, I.A No. 23045/2023,
and I.A No. 28776/2023), with the consent of parties, these appeals are heard
finally.
3. All these appeals have been filed by the appellants being aggrieved
by the judgment of conviction and sentence dated 30.06.2023 passed by the
First Additional Sessions Judge, Sidhi, District - Sidhi in Sessions Trial
No.17/2017, whereby the appellants have been convicted and sentenced as
under :-
CONVICTION SENTENCE
Section Act Imprisonment Fine if deposited Imprisonment in
details lieu of fine
302/34 IPC Imprisonment of do One year R.I.
life and fine of
Rs.10,000/-
325/34 IPC Two years R.I do Three month R.I
and fine of
Rs.5000/-
323/34 IPC Three month R.I do One month R.I
and fine of
(five Rs.1000/-
count)
4. As per prosecution story, on 19.11.2016 complainant Vinod Mishra
(PW-1) went to the police station Semariya in order to lodge the report that
today at 9.15 he went to the flour mill/shop of Dinesh Gupta of village
Hanumangarh, at that time Ajit Kumar Tripathi, and Dinesh Gupta were
standing in front of the shop, Ravi @ Hemant Tiwari, Jai Prakash Dubey @
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Bablu, and Babol @ Rajeev Baheliya @ Jadga, came there and used the
filthy language. Ajit Tripathi objected it, then in reply Hemant Tiwari again
abused him by filthy language and gave a blow by stick on his back. The
complainant Vinod Mishra tired to save him then Babol caught hold him and
Jai Prakash Dubey started beating him with fist and hands. Ravi @ Hemant
Tiwari assaulted him with stick on his head, he sustained injury on head,
elbow, ear and back. By seeing this incident, Deen Bhandu Gupta came to
save them and then Rajeev Baheliya @ Jadga who was weilded with stick
gave blow on his head, then Ram Khilawan Tripathi also came and objected
as to why you are beating him. All three namely, Ravi @ Hemant Tiwari, Jai
Prakash Dubey @ Bablu, and Babol @ Rajeev Baheliya @ Jadga assaulted
him by means of stick and rod with an intention to kill him, he started
vomiting blood and thereafter, they all ran away by threatening others to see
them in future, if they again come and intervene. The aforesaid incident was
witnessed by Kaushal Prasad Gupta and Guddu @ Shailendra Kumar
Tripathi. Immediately 100 No. was dialed and police was called. Ram
Khilawan Tripathi became unconscious. He was taken to the hospital. On an
information, FIR was registered at crime no. 110/2016 under sections 294,
323, 307, 506, 34 of IPC (Ex.P-1). The said FIR was sent to the police station
Churhat, where it was registered at Crime No. 478/2016 (Ex.P-8).
5. The police started the investigation by drawing spot map, taking
samples of blood stained soil, plain soil (Ex.P-3), Najari Naksha was drawn,
statements of witnesses under section 161 of Cr.P.C were recorded. The
injured witnesses were examined at Primary Health Centre, Semariya and
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treatment was given. Ram Khilawan Tripathi who sustained the grievous
injury was transferred to Chirayu Hospital, Bhopal. He succumbed to the
injuries on 5.01.2017. Information vide Ex.P-27 was sent to the police
station. The accused persons were arrested. On their disclosure, the rod, and
wooden stick were recovered. After completing the investigation, the charge
sheet was prepared and the same was filed before the Court of Judicial
Magistrate First Class, Churhat, from where the trial was committed to the
session court on 15.02.2017.
6. Learned Session Judge framed the charges and read over to the
accused persons. They denied the charges and pleaded for trial. In defence,
Jai Prakash Dubey stated that earlier also family member of Gupta had
lodged a report under section 342, 506, 323, 377 of IPC against him and in
which he was tried and got acquitted. After acquittal they again threaten him
and falsely implicated him in this case. There is political enmity between
them.
7. Learned Session Court framed five issues for adjudication. The
prosecution examined 20 witnesses and exhibited 35 documentary evidence.
In defence, the appellants did not examined any witness. After appreciating
the evidence that came on record, vide judgment dated 30.06.2024, the
appellants have been convicted and sentenced as stated above. Hence, these
appeals before this Court.
8. Learned counsel for the appellant submits that even if the entire
story is believed as it is, then also the appellants have wrongly been
convicted under section 302 of IPC. So far conviction under sections 325,
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323/34 (five count) are concerned, they have already undergone the period of
almost 2 years and 3 months respectively. Therefore, they are assailing the
findings of conviction and sentence recorded under section 302 of IPC.
9. Learned counsel for the appellant submits that the dispute suddenly
started between two groups in which Ram Khilawan Tripathi tried to
intervene. In the said scuffle, he sustained a head injury and died. He was
aged about 83 years and as per medical report, he sustained one contusion,
one lacerated wound and one abrasion. There was no plan or intention to
even assault him by these appellants but he succumb to this minor injury.
Therefore, their conviction and sentence under section 302 of IPC is bad in
law and liable to be set aside.
10. Learned Government Advocate for respondent/State opposed the
aforesaid prayer and submitted that the appellants came with the common
intention to assault the deceased and injured persons and they knew, he was
aged about 83 years, despite that he was given blow on his head with an
intention to kill, therefore, conviction and sentence of appellants under
section 302 of IPC is liable to be maintained.
11. We have heard the learned counsel for the parties and perused the
record.
12. Initially, the FIR was registered under sections 294, 323, 307, 506,
34 of IPC (Ex.P-1) by Vinod Mishra (PW-1) and according to which Ajeet
Tripathi, Dinesh Gupta were standing in the shop, Ravi @ Hemant Tiwari,
Jai Prakash Dubey @ Bablu, and Babol @ Rajeev Baheliya @ Jadga, came
there and dirty conversation started between them, which has followed with
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an blow by stick to Ajeet and then Deen Bhandu Gupta intervened. He was
also assaulted and thereafter, Ram Khilawan Tripathi came there. Although
in FIR he disclosed that all three jointly said that kill him and started
assaulting him. As per medical certificate of cause of death (Ex.P-26), he
was aged about 83 years.
13. As per deposition of Vinod Mishra (PW-1), Ram Khilawan
Tripathi came there and scolded these appellants as to why they are fighting
and Babol @ Rajeev Baheliya gave a blow by rod and Ravi gave blow by
lathi and Jai Prakash assaulted by means of fist and hand. He has not stated
that they assaulted with an intention to kill Ram Khilawan Tripathi. Kaushal
Prasad Gupta (PW-2) also supported the case of the prosecution. However,
he stated that they all assaulted with intention to kill but there was no reason
for them to murder Ram Khilawan Tripathi as there was no previous enmity
between them. The deceased was not even relative of the complainant and
another from whom the dispute was started.
14. As per Dr. Himesh Pathak (PW-6), who examined the deceased
and other injured persons, all sustained contusion, and lacerated wounds by
means of hard blunt object. The deceased sustained a contusion, lacerated
and abrasion. In cross examination, the said doctor has admitted that Ram
Khilawan Tripathi could sustain injury no.1 and 3 by falling. As per Deen
Bandhu Gupta (PW-7), Ram Khilawan Tripathi was aged about 80 years
came there and said why you all are fighting, then accused assaulted him. He
fell down and started vomiting blood. Similar statement was given by Ajit
Kumar Tripathi (PW-9) also. As per Gajadhar Prasad Gupta (PW-11), Ram
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Khilawan Tripathi was passing from that road and saw this incident and tried
to intervene, therefore, it is clear from the aforesaid evidence that Ram
Khilawan Tripathi being aged person was passing from the place of crime
and saw that these appellants and injured were fighting, therefore, he tried to
pacify the dispute but in the said dispute, he was given a blow by stick and
rod and sustained injury. There was no mens rea or intention to kill him by
these appellants. He was given treatment in the Super Specialty hospital, but
he succumbed to the injuries on 19.11.2016. He survived for 1 month and 17
days. Other injured also sustained similar injury but they were not old as
Ram Khilawan Tripathi (83 years of age), therefore, they could survive by
sustaining the similar injuries. The appellants have been convicted and
sentenced under section 323, 325, but since Ram Khilawan Tripathi expired,
therefore, section 302 of IPC has been added.
15. In view of above, we are of the view that in a sudden fight,
between two groups, out of which third person, who is aged about 83 year
came to settle the dispute but sustained injuries and died after 1 months and 7
days, does not comes under Section 302 that too without the prosecution
proving the intention/motive on the part of accused who had no previous
enmity with the deceased. The present Criminal Appeals are partly allowed.
The conviction of the appellants and sentence awarded to them under
Section 302 of I.P.C. is altered to one under Section 325 of I.P.C., for which,
the appellants are awarded 2 years' rigorous imprisonment. The fine amount
is maintained as awarded by the learned Trial Court, in case of non-payment
of default amount, the appellants shall suffer further S.I for two months
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respectively. The fine amount so deposited Rs.10,000/- be given to the
family of the deceased.
16. The conviction and sentence and fine under other sections are not
under challenge therefore, the conviction and sentence of appellants under
section 325/34 and section 323/34 (five counts) IPC is maintained. As the
appellants have already undergone the period of almost 2 years and 3 months
respectively. Appellants be released from the jail and set free after depositing
the fine amount, if not already deposited and if not required to be kept in jail
in any other case.
17. Let the record of the trial Court along with copy of this judgment
be sent to the concerned trial Court for information and necessary action. A
copy of this order be also sent to the jail authorities.
18. Let copy of this order be kept in the record of connected appeals.
(VIVEK RUSIA) (ANURADHA SHUKLA)
JUDGE JUDGE
tarun
