Madhya Pradesh High Court
Kamal vs The State Of M.P. on 15 July, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:18074
1 CRA-1149-2001
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
CRIMINAL APPEAL No. 1149 of 2001
KAMAL
Versus
THE STATE OF M.P.
Appearance:
Shri Vivek Singh - Senior Advocate for the appellant with Shri
Rajesh Yadav - Advocate for the appellant.
Shri H.S.Rathore - Govt. Advocate for the respondent/State .
Reserved on:- 01.05.2025.
Delivered on:- 15.07.2025.
.......................................................................................................................................................
JUDGMENT
Per: Justice Gajendra Singh
This criminal appeal under Section 374(2) of the Cr.P.C., 1973 is
preferred being aggrieved by the judgment dated 19.09.2001 passed in
Session Case No.588/2000 by IIIrd Additional Sessions Judge, Indore
whereby the appellant/accused has been convicted under Section 302 of the
IPC and has been sentenced to undergo Life Imprisonment and fine of
Rs.1,500/- with default stipulation of 03 months additional Simple
Imprisonment.
2. The prosecution case before the trial Court on dated 10/6/2000 at
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about 9.30 p.m. in the village - Pitawali, Tehsil Depalpur, appellant/accused
Kamalsingh assaulted Thakarsingh with woodenstick. Salagram (PW-2)
reported the matter to police station Goutampura, Indore and on that police
registered the offence as Crime No. 72/2000 U/s. 324, 294 and 506 of I.P.C.
Thakarsingh was treated at Preliminary Health Centre, Depalpur and was
transfered to M.Y. Hospital, Indore, after 15 days, on 25/06/2000 Thakar
Singh died & & police altered the case U/s. 302 of 1.P.C. against appellant.
After investigation police submitted the challan of case before J.M.F.C,
Depalpur. Case was committed and transferred to the Court of IIIrd
Additional Session Judge, Indore for trial.
3. Appellant was put to trial on charge under Section 302 and 294 of
the IPC. Appellant abjured the guilt and claimed for trial.
4. To bring home the guilt prosecution examined as many as 16
witnesses including the wife of the deceased and eye witness of the incident
Sourambai (PW-1), brother of the deceased and uncle of the
appellant/accused Salagram (PW-2), cousin of the appellant Bahadur Singh
(PW-3). Formal witnesses Dev Narayan (PW-4), Kailash (PW-5),
Ramprasad (PW-6), cousin of the deceased Tejubai (PW-7), Badrilal (PW-
8), Radiologist Dr. BR Bansal (PW-9), Medical Officer Dr. Anand Kapse
(PW-10), Head Constable No.1861 Ram Prasad Kelwa (PW-11), Chief
Medical Officer Dr. Surendra Dubey (PW-12), Investigating Officer Daulat
Singh Ranawat (PW-13) and Chowkidar Ramchandra (PW-14), Assistant
Surgical Officer M.Y Hospital Dr. Kshitij Dubey (PW-15), Dr. S.K
Shrivastav (PW-16).
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5. In examination under Section 313 of the Cr.P.C., 1973
appellant/accused either denied or expressed ignorance regarding all the facts
and circumstances against him. He admitted the fact that he had purchased a
piece of land from the deceased but stated that land was purchased a
sufficient time ago and there was no dispute regarding that land. He stated
that Sourambai (PW-1) does not possess good mental health he advanced
false implication as defence.
6. Appreciating the evidence trial Court recorded the finding that
Sourambai (PW-1) is competent witness and the injuries due to which
Thakar Singh died were caused by appellant/accused by a stick with iron
ring. The act of the appellant/accused for causing the death of the Thakar
Singh was intentional falling within the purview of Section 300 Clause-I of
the IPC and convicted and sentenced him as per para 01 of the
judgment. Appellant/accused was acquitted from the charge of Section 294
of the IPC.
7. Challenging the conviction as well as sentence this appeal has
been preferred on the ground :-
i. That trial Court erred in relying on prosecution witness.
Prosecution failed to connect the appellant with crime.
ii. That, trial Court erred in considering the statement of Sourambai
(PW-1) whose statement was recorded after 13 days of the incident dated
23.06.2000. Trial Court erred in not considering the fact that statement of
Sourambai (PW-1) comes under the purview of infirm witness and not
reliable as per the finding of trial Court, in para 10 of the judgment that she
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was not in good mental health.
iii. That, trial Court erred in presuming the fact that in para 15 & 17
of the judgment due to death of Thakar Singh this witness is not mentally fit.
But further committed error in deciding the same in para 65 of the judgment
that Sourambai (PW-1) is not infirm and lunatic and her statement is
admissible.
iv. That, trial Court erred in not considering the cross-examination of
the Sourambai (PW-1) in para 50 of the judgment because as per the court
statement of this witness the Court had held that mental condition of the
witness is not well at present and postpone the cross-examination of the
witness for the next date. Sourambai (PW-1) was related witness her
statement is contrary to the medical version.
v. That, trial Court erred in believing the statement of Sourambai
(PW-1) with the help of statement of Teju Bai (PW-7). Trial Court erred in
considering the statement of Salagram (PW-2) and because he never
supported the prosecution them and he clearly stated in para 3 & 6 of the
statement that Police threatened him and forceable lodged the report on his
instance.
vi. That, trial Court erred in holding para 14 of the judgment this
witness lodged the first information report. Trial Court failed to appreciate
the fact that seizure of lohangi from the appellant is not proved by the
independent witness and there are many variations in the identity of seized
article. Trial Court also erred in believing in statement of Investigating
Officer of the case, because there are so many illegalities, infirmities in the
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statement of this witness and trial Court accepted this version in para 55 of
the judgment but erred in believing on the statement of this witness.
vii. No independent witness has been examined despite the fact that
incident occurred in a populated area of village Pitawali. Trial Court further
committed error in recording the finding that act of appellant falls within the
purview of Section 300 of the IPC and appellant intended to kill the deceased
Thakar Singh.
viii. Dr. Anand Kapse (PW-10) earlier in para 13 of his statement
accepted that it was not possible for him to give the duration of injuries but
later he opined that injury No.1 was grievous in nature and dangerous to life
via report Ex.P/20.
ix. At the most act of the appellant falls within the category of
Section 325 of the IPC because death of the deceased was not the direct
result of injury. Injury died after 15 days of occurrence and in between he
was treated and operated by the doctor. The injuries of Thakar Singh were
not sufficient to cause the death because it could not be proved that death of
deceased took place because of injuries.
Heard.
8. Learned counsel for the respondent/State has supported the
conviction and sentence and argued that no case for interference is made out.
Perused the record.
9. Salagram (PW-2) is the younger brother of deceased who stated in
para 02 that he lodged the First Information Report Ex.P/1. He admitted in
cross-examination that he lodged the First Information Report on the
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information from the villagers as he was not present at the time of incident.
He was declared hostile by the prosecution.
10. Bahadur Singh (PW-3) also turned hostile. Teju Bai (PW-7)
daughter of the deceased was in her 'Sasural' at the time of incident.
11. Sourambai (PW-1) stated on 09.11.2000 that her husband was
sitting on otla and appellant/accused inflicted a stick on her husband. The
cause of this incident is stated that due to a land dispute appellant caused
injury to her husband. Her husband sustained injury on his head. In cross-
examination this witness admitted that she is taking treatment regarding her
mental health issues.
12. Before proceeding further this Court is considering the provision
for competency to testify. Section 118 of the Indian Evidence Act, 1872 is
relevant for this purpose which is being reproduced as below:-
"Section 118 - Who may testify.
All persons shall be competent to testify unless the Court considers that
they are prevented from understanding the question put to them, or from giving
rational answers to those questions, by tender years, extreme old age, disease,
whether of body or mind, or any other cause of the same kind.
Explanation-
A lunatic is not incompetent to testify, unless he is prevented by his lunacy
from understanding the questions put to him and giving rational answers to
them."
13. In the light of Section 118 of the Indian Evidence Act, 1872
parameters is not that witness is facing some mental health issues or not and
for this purpose she is taking any treatment or not. But the important thing is
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that witness understand the question put to him or her and witness gives
rational answer to those questions. Explanation of Section 118 of the Indian
Evidence Act, 1872 further clarifies that even a lunatic is not competent to
testify.
14. Trial Court has considered this aspect and perusal of the
statement of Sourambai (PW-1) re-affirm the findings of trial Court that
witness PW-1 was competent to testify and when the witness who are also
the family member of accused may not support the prosecution version and
due to the fact that PW-2 & PW-3 and Devnarayan (PW-4) have not
supported the prosecution version does not demolish the prosecution case.
Para 12 of this witness of PW-1 is not in conformity with the rest of her
statement and this paragraph is the result of postponement of statement on
09.11.2000. Trial Court has rightly not relied on this paragraph. The medical
officer Dr. Anand Kapse (PW-10) was the person who examined Thakar
Singh first time in the night of 11.06.2000 at 2:00 am and found an incized
1.5 inch x 1/2 inch extended upto bone at left temporal just above the left ear
caused by sharp edged weapon. Another injury was found on the posterior of
right palm sized 2 x 2 inch with bruises caused by hard and blunt object and
third injury at left elbow with bruises of 3x 3 inch sized. The deceased was
unconscious and blood was oozing from the nose and there was a capitation
sound demonstrating fracture of the head. He opined that injury No.1 was
dangerous to life.
15. This witness has denied in para 28 that injuries may be caused
due to fall from the olta in intoxicated condition. There is an extensive cross-
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examination of this witness and trial Court has appreciated the cross-
examination of this witness and the finding of trial Court that injury were not
caused due to fall is proper.
16. Doctor Surendra Dubey (PW-12) conducted the autopsy of the
Thakar Singh on 26.06.2001 at M.Y Hospital Indore and he opined vide
Ex.P/23 that cause of death of Thakar Singh was cardio respiratory
failure due to head injury. Dr. Kshitij Dubey (PW-15) with Dr. S.K.
Shrivastava (PW-16) were part of the team that treated Thakar Singh in the
M.Y Hospital Indore under the supervision of Dr. R.K Mathew and Dr. Dilip
Acharya from 11.06.2000 till the death of deceased. Accordingly, the fact
that they were students does not affect the fact that Thakar Singh died due to
the injury on the head caused on 11.06.2000 and the argument of prosecution
that there is no direct link between the injuries inflicted on 11.06.2000 and
death of the deceased on 26.06.2000, the recording of statement of
Sourmabai (PW-1) on 23.06.2000 does affect the prosecution version as FIR
itself was lodged on 11.06.2000 and the deceased was taking a treatment
continuously in M.Y Hospital Indore and Sourambai was the wife of
deceased.
17. The trial Court was right in recording the finding that appellant
was the person who inflicted the injury on 11.06.2000 in village Pitawali and
Thakar Singh succumbed to injuries at 7:30 pm of 25.06.2000 in M.Y
Hospital Indore.
18. Trial Court has convicted the appellant under Section 302 of the
IPC recording the reasons in para 62 of the judgment that act of causing the
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injuries at the house of the deceased using lohangi and selecting the vital part
of the body i.e head discloses the intention of the appellant/accused to
commit the murder of appellant/accused.
19. The above finding is under challenge on behalf of the
appellant/accused and it is argued that trial Court has not considered the fact
that deceased and appellants are the family members and incident occurred
without pre-meditation. The cause of incident is that deceased claimed that
his land is in possession of the appellant/accused and insisted for
demarcation. Appellant/accused has not taken undue advantage. The
deceased survived for a period of 15 days. There is only one injury on the
head. The description of the stick is mentioned in para 07 of Dr. Anand
Kapse (PW-10) that it was a bamboo stick with five knots and one iron ring
at the head of the stick.
20. The intention to cause the death of the appellant cannot be
inferred. At the most it can be concluded that appellant has the knowledge
that the death of the deceased may be caused. Accordingly, act of the
appellant does not fall within the purview of Section 302 of the IPC. It falls
within the purview of Section 304 Part-II of the IPC. Therefore, the finding
regarding the conviction of the appellant under Section 302 of the IPC is
altered from Section 302 of the IPC to Section 304 Part-II of the IPC.
21. The appellant has undergone actual period of custody of 04 years
& 01 month. The ends of justice would be served if sentence of fine is
enhanced and sentence of imprisonment is reduced to the period already
undergone.
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22. Accordingly, this appeal is partly allowed. Conviction of the
appellant is altered from Section 302 of the IPC to Section 304 Part- II of the
IPC and his sentence of imprisonment is reduced to the period already
undergone and the fine is enhanced from Rs.1,500/- (Rupees One Thousand
Five Hundred Only) to Rs.1,00,000/- (Rupees One Lac Only).
23. The fine amount shall be paid to Sourambai (PW-1) under
Section 357(1) of the Cr.P.C., 1973. In case Sourambai (PW-1) does not
survive then the amount of compensation shall be paid to Teju Bai (PW-7),
who is the daughter of deceased.
24. The amount of fine shall be deposited within six months from
the date of passing of this judgment. If there is default in payment of fine
then appellant shall undergo 01 year R.I in default of fine.
25. The record be remitted back to the concerned trial Court for
information and necessary compliance. Let copy of the judgment be supplied
to Sourambai (PW-1) and Teju Bai (PW-7).
With the aforesaid, this criminal appeal stands disposed off.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
akanksha
