Madhya Pradesh High Court
Rajendra @ Raju vs The State Of Madhya Pradesh on 1 March, 2025
Author: Vivek Rusia
Bench: Vivek Rusia
NEUTRAL CITATION NO. 2025:MPHC-IND:5522
1 CRA-6048-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE VIVEK RUSIA
&
HON'BLE SHRI JUSTICE GAJENDRA SINGH
ON THE 1 st OF MARCH, 2025
CRIMINAL APPEAL No. 6048 of 2019
RAJENDRA @ RAJU
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Vivek Singh, learned senior counsel with Shri Rajesh Yadav for
the appellant.
Shri Harish Singh Rathore, learned GA for the respondent/State.
Reserved on 20.02.2025
Delivered on 01.03.2025.
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JUDGMENT
Per: Justice Gajendra Singh:
This appeal under section 374 (2) of the Cr.P.C is preferred being
aggrieved by the conviction under section 302 of the IPC and sentence of life
imprisonment and fine of Rs.1,000/- with default stipulation of one month's
additional RI vide judgment dated 28.06.2019 in S.T.No.117/2015 by 5th
A.S.J, Dhar, district Dhar.
2. Prosecution case before the trial court was that on 22.01.2015 at 9
p.m when deceased Banesingh returned to his home at village Gunawat, PS
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Nalcha, district Dhar, M.P and asked her mother Kankubai (PW/2) water
then her mother served water to her son at the Otla of his house. At that time
appellant Rajendra @ Raju along with his younger brother Sunil @ Bhuru
and brother in law Girdhari came and hurled abusive words alleging that why
they flow water of sewage on his house in front of their house and
threatened to kill Banesingh. Banesingh asked appellant/accused and his
companions not to speak abusive language then Rajendra @ Raju assaulted
Banesingh with axe on head. Banesingh fell down and Kankubai raised
alarm. Dilip and Shankar came to the spot and Banesingh was taken to
district hospital, Dhar for treatment and thereafter a first information report
was lodged at PS Nalcha and a crime no.14/15 was registered at PS Nalcha
under sections 294, 323 & 506 r/w section 34 of the IPC. Banesingh was
referred to MYH, Indore for further treatment and Banesingh died in MYH,
Indore at 5.30 p.m on 23.01.201. A Marg No.047/15 was registered at PS
Snayogitaganj, Indore and autopsy of Banesingh was performed. PS Nalcha
was intimated and section 302 of the IPC was added. After investigation a
final report under section 173 of the Cr.P.C was submitted to the Court of
JMFC, Dhar where criminal case no.577/2015 was registered and matter was
committed to the court of Session Judge, Dhar against appellant along with
Sunil @ Bhuru and Girdhari. Rajendra @ Raju along with Sunil @ Bhuru
and Girdhari were prosecuted under sections 294, 506 Part-II, 302 or
alternatively 302 r/w section 34 of the IPC. All three persons abjured guilt
and claimed for trial.
3. Prosecution examined as many as 17 witnesses including the
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mother of the deceased Kankubai as PW/2, wife of deceased Smt.Sangeeta
as PW/3, witness Anandilal as PW/4, Shyamlal as PW/5, Head Constable
Sakharam as PW/1, Sub Inspector OP Sharma as PW/6, Patwari Smt.Rama
Waskel as PW/7, Prahlad as PW/8, Manoj Rathore as PW/9, Girdhari as
PW/10, Asstt. Professor MGM medical college, Indore Dr.BK Singh as
PW/11, Dr.Devan Unni as PW/16, ASI Trilok Bourasi as PW/12, Arun
Kumar as PW/13, Kailash as PW/14, Kamal Singh as PW/15, ASI Ajit Singh
Kushwah as PW/17. In examination under section 313 of the Cr.P.C
appellant/accused Rajendra @ Raju either denied or expressed ignorance
regarding all the facts and circumstances appeared in prosecution evidence
against him. No evidence was adduced in evidence. Appreciating the
evidence trial court acquitted Sunil @ Bhuru and Girdhari from all charges
and also acquitted the appellant/accused Rajendra from sections 294 & 506
Part-II of the IPC and convicted appellant under section 302 of the IPC and
sentenced as per para-1 of the judgment.
4. Challenging the conviction and sentence, this appeal has been
preferred on the ground that trial court ignored the material omissions and
contradictions in the statement of prosecution witnesses. The conviction is
based on unwarranted inferences and trial court committed error in believing
the prosecution witnesses and discarding the defence version.
5. Heard.
6. Learned Govt. Advocate has supported the conviction and
sentence and argued that no case for interference is made out.
7. Trial Court relied the testimony of Kanku bai (PW/2), Sangeeta
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(PW/3), Anandilal (PW/4) and concluded in para-85 of the judgment that
Rajendra @ Raju caused the death of Banesingh by inflicting injuries using
axe article-A/1 at 9 p.m on 22.01.2015 at the Otla of the house of Kankubai
situated at village Talwada, PS Nalcha, district Dhar and further concluded
that the case does not fall within any exceptions of section 300 of the IPC
and convicted the appellant/accused under section 302 of the IPC.
8. Argument of the defence is that trial court has recorded these
findings without taking into consideration the genesis of the incident and the
fact that the incident happened in spur of the moment. It was not pre-
meditated as both appellant and deceased are neighbours and the incident
occurred in the sudden passion due to the fact that water of sewage was
flowing from the house of appellant and argued that at the most the case falls
within the purview of section 304 Part-II or 304 Part-I of the IPC.
9. In the light of the argument advanced by the appellant/accused,
we reappreciated the testimony of Kankubai (PW/2), Sangeeta (PW/3),
Shyamlal (PW/5), Dr.Devan Unni (PW/16) and ASI Ajit Singh Kushwah
(PW/17).
10. ASI AS Kushwah (PW/17) prepared the spot map Ex.P/2 which
reveals that house of deceased Banesingh and house of accused are adjoining
to each other.
11. Kankubai (PW/2) has stated in answer to the question in para-20
that family members of appellant insisted to draw a drainage so that water
could be passed and on the date of incident also appellant and his brother
Sunil again asked Banesingh for erecting the drainage and Banesingh replied
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that they will discuss the matter with Sarpanch and villagers in the morning
and hearing this reply there was altercation and his son was assaulted with
axe. This witness has stated in para-2 also that the dispute was regarding
passing of drainage water and appellant and his family members were
objected to passing the drainage water of their house through the courtyard
of their house. Shyamlal (PW/5) in para-2 has stated that Kankubai
intimated him that Banesingh and appellant were scuffled due to passing of
drainage water. Dr.Devan Unni (PW/16) is the person who first examined
Banesingh at district hospital, Dhar and found a wound of 6x2x2 cm size in
the skull of Banesingh and Dr.BK Singh (PW/11) opined that cause of death
of Banesingh was craniem cerebral damage due to grievous injuries in the
skull and head and their complications.
12. Re-appreciating all the above evidence reveals that appellant and
deceased were neighbours. The water of drainage of deceased was passing
from the courtyard of the house of appellant and appellant and his family
members were objecting. Prior to the incident also there was antecedents not
to pass drainage water through the house of the appellant and in the
background of this dispute the incident happened. This factual position
attracts exception-1 of section 300 of the IPC which is being reproduced as
below:
Exception 1.--When culpable homicide is not murder.--
Culpable homicide is not murder if the offender, whilst deprived
of the power of self-control by grave and sudden provocation,
causes the death of the person who gave the provocation or
causes the death of any other person by mistake or accident.
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The above exception is subject to the following provisos:--
First.--That the provocation is not sought or voluntarily
provoked by the offender as an excuse for killing or doing harm
to any person.
Secondly.--That the provocation is not given by anything done
in obedience to the law, or by a public servant in the lawful
exercise of the powers of such public servant.
Thirdly.--That the provocation is not given by anything done in
the lawful exercise of the right of private defence.
Explanation.--Whether the provocation was grave and sudden
enough to prevent the offence from amounting to murder is a
question of fact.
13. Accordingly, the finding of the trial court is not sustainable to the
extent of not invoking exception-1 to section 300 of the IPC. The invocation
of exception-1 of section 300 IPC brings the case of the appellant under
section 304 Part-I of the IPC and not under section 302 of the IPC.
14. The punishment under section 304 of the IPC is imprisonment
for life or imprisonment of either description for a term which may extend to
10 years, and shall also be liable to fine. The judgment of the trial court
reveals that there is no criminal antecedents of the appellant Rajendra @
Raju. The record of the trial court does not discloses the exaggerating
circumstances warranting maximum sentence of life imprisonment but para-
104 of the judgment discloses the necessity of imposition of adequate fine so
that dependents of the deceased could be compensated for the loss of bread
earner of the family. Accordingly, this appeal is partly allowed and the
conviction of appellant Rajendra @ Raju is altered from section 302 to
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section 304 Part-I of the IPC and sentence is altered from life imprisonment
and Rs.1,000/- fine to ten years RI and fine of Rs.1,00,000/- (rupees one
lakh), in default of fine amount the appellant/accused shall undergo a further
RI of two years. All the amount of fine shall be paid to Sangeeta w/o late
Banesingh, R/o village Talwada, PS Nalcha, district Dhar.
15. Accordingly, the appeal is partly allowed. Copy of the judgment
be supplied to the appellant through the Superintendent of the concerned jail.
Copy of the judgment be supplied to Sangeeta w/o late Banesingh, R/o
village Talwada, district Dhar. Supersession warrant be prepared and record
be sent to the trial Court for compliance.
(VIVEK RUSIA) (GAJENDRA SINGH)
JUDGE JUDGE
hk/
