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2011 Supreme(MP) 866
2012(1) JLJ 232
Rakesh Saksena and M.A. Siddiqui, JJ.
Bharat Singh v. State of M.P.
Criminal Appeal No.244 of 1994 (Jabalpur) : against the judgment of Second Additional Sessions Judge, Sehore, passed in
Sessions Trial No.98 of 1990; Decided on 30.11.2011.
Siddharth Datt for appellants;
Umesh Pandey, Government Advocate for State.
Headnote:(1) Penal Code, 1860 -- Ss.302, 302/34, 304 Part-I and 304 Part-I/34 -- offence of murder -- omissions in statements of eye-witnesses not of substantial or material nature -- FIR and testimony of witnesses corroborated by medical evidence -- other witnesses also corroborative for prosecution though declared hostile -- injury sufficient in ordinary course of nature to cause death -- offence proved -- but no past enmity between both the parties -- incident occurred on the spur of the moment -- assault took place just in continuation of quarrel and not after a long gap -- no opportunity to give up heat of passion -- conviction modified from u/s 302 and 302/34 to under sections 304 Part-I and 304 Part-I/34 of IPC -- accordingly, sentences reduced to rigorous imprisonment for 10 years instead of life imprisonment.
It can be safely inferred that the incident occurred on the spur of the moment, when accused Bharat and deceased wanted to have eggs first. There is absolutely nothing on record to indicate that there had been any past enmity or bad-blood between them.
No doubt, the prosecution case is that accused Bharat, in the course of quarrel, rushed to his house and brought Gupti for assaulting deceased, but it has come in evidence that the house of both the parties were not away from the place of occurrence. The incident of assault took place just in continuation of the quarrel and not after a long gap, which could have provided opportunity to accused to give up their heat of passion. In our opinion, in these circumstances, the case of accused-appellants would squarely fall within the ambit of Exception 4 of section 300 of the Indian Penal Code, but, since accused Bharat wielded deadly weapon like Gupti and caused as many as six injuries out of which injury No.2, which cut the lung and heart of the deceased, was sufficient in ordinary course of nature to cause his death, it has to be held that accused intended to cause death or to cause such bodily injury as was likely to cause death of deceased. As such, they would be liable to be punished under section 304 Part-I of the Indian Penal Code.
Accordingly, the conviction of appellants under section 302 and 302/34 of the Indian Penal Code and sentence of imprisonment for life awarded to them is modified to under section 304 Part-I and 304 Part-I/34 of the Indian Penal Code, respectively, and their sentences are reduced to rigorous imprisonment for 10 years, especially in view of the fact that at the time of occurrence appellant Bharat was a young boy of about 18 years and that both the appellants have already remained in jail from 7.1.1990 to 28.8.2000.
(2) Evidence Act, 1872 -- S.3 -- evidence of closely related witnesses -- cannot be discarded merely because of their being associated with one side -- however, should be subjected to a careful scrutiny and accepted with caution. 1988(I) MPWN 216 (SC) followed. [Para 13
¼1½ naM lafgr] 1860 && /kkjk 302] 302@34] 304 Hkkx&1 rFkk 304 Hkkx&1@34 && gR;k dk vijk/k && izR;{kn‘khZ lkf{k;ksa ds dFkuksa esa yksi lkjoku~ ;k rkfRod izd`fr ds ugha && izFke bfÙkyk fjiksVZ rFkk lkf{k;ksa ds ifjlk{; ds fy, fpfdRlk lk{; laiqf"Vdkjh && vU; lk{kh Hkh vfHk;kstu ds fy, laiqf"Vdkjh ;|fi i{knzksgh ?kksf"kr && {kfr izd`fr ds lkekU; vuqØe esa e`R;q dkfjr djus ds fy, i;kZIr && vijk/k lkfcr && ijarq] nksuksa i{kdkjksa ds e/; dksbZ iwoZ ‘k=qrk ugha && ?kVuk rRdky gqbZ && >xM+s ds tkjh jgrs gq, gh geyk gqvk u fd yacs varjky ds i‘pkr~ && vkos‘k dh rhozrk R;kxus dk volj ugha && naM lafgrk dh /kkjk 302 rFkk 302@34 ds v/khu nks"kflf) /kkjk 304 Hkkx&1 rFkk 304 Hkkx&1@34 esa mikarfjr && rnuqlkj] naMkns‘k vkthou dkjkokl ds ctk, 10 o"kZ ds dBksj dkjkokl esa de fd;k x;kA
;g fuf‘pr :i ls vuqeku yxk;k tk ldrk gS fd ?kVuk rRdky gqbZ] tc vfHk;qDr Hkkjr rFkk e`rd vaMs igys [kkuk pkgrs FksA vkR;afrd :i ls vfHkys[k ij ;g minf‘kZr djus ds fy, dqN Hkh ugha gS fd muds e/; dksbZ iwoZ ‘k=qrk ;k }s"k FkkA
fu%lansg] vfHk;kstu dk i{kdFku ;g gS fd vfHk;qDr Hkkjr >xM+s ds vuqØe esa] vius ?kj x;k rFkk e`rd ij geyk djus ds fy, xqIrh yk;k] ijarq lk{; esa ;g vk;k gS fd nksuksa i{kdkjksa ds ?kj ?kVukLFky ls nwj ugha FksA geys dh ?kVuk >xM+k tkjh jgus ds nkSjku gh gqbZ u fd yacs varjky ds i‘pkr~] ftlls vfHk;qDrksa dks vius vkos‘k dh rhozrk R;kxus dk volj fey ldrk FkkA gekjh jk; esa] bu ifjfLFkfr;ksa esa vfHk;qDrksa&vihykFkhZx.k dk ekeyk naM lafgrk dh /kkjk 300 ds viokn 4 dh ifjf/k ds Hkhrj mfpr :i ls ykxw gksrk gS] ijarq] D;ksafd vfHk;qDr Hkkjr us ?kkrd vk;q/k ;Fkk xqIrh dk iz;ksx fd;k rFkk N% {kfr;k¡ dkfjr dha ftuesa ls {kfr Ø-2] ftlls e`rd dk QsQM+k rFkk ân; dV x,] izd`fr ds lkekU; vuqØe esa mldh e`R;q dkfjr djus ds fy, i;kZIr Fkh] ;g vfHkfu/kkZfjr fd;k tkuk gS fd vfHk;qDr e`R;q dkfjr djus ;k ,slh ‘kkjhfjd {kfr dkfjr djus ds fy, vk‘kf;r Fkk ftlls e`rd dh e`R;q dkfjr gksuk laHkkO; gksA blfy,] os naM lafgrk dh /kkjk 304 Hkkx&1 ds v/khu nafMr fd, tkus ds fy, nk;h gksaxsA
rnuqlkj] vihykFkhZx.k dh Hkkjrh; naM lafgrk dh /kkjk 302 rFkk 302@34 ds v/khu nks"kflf) rFkk mUgsa fn;k x;k vkthou dkjkokl dk naMkns‘k Øe‘k% Hkkjrh; naM lafgrk dh /kkjk 304 Hkkx&1 rFkk 304 Hkkx&1@34 ds v/khu mikarfjr fd;k tkrk gS rFkk muds naMkns‘k fo‘ks"kr;k bl rF; dks n`f"Vxr j[krs gq, fd ?kVuk ds le; vihykFkhZ Hkkjr yxHkx 18 o"kZ dk uo;qod Fkk rFkk nksuksa vihykFkhZx.k igys dh 7-1-1990 ls 28-8-2000 rd tsy esa jg pqds gSa] 10 o"kZ ds dBksj dkjkokl esa de fd, tkrs gSaA
¼2½ lk{; vf/kfu;e] 1872 && /kkjk 3 && fudV ukrsnkj lkf{k;ksa dk lk{; && muds ,d i{k ds lgpkjh gksus ek= ds dkj.k R;Dr ugha fd;k tk ldrk && rFkkfi] bldh lrdZ tk¡p dh tkuh pkfg, rFkk lko/kkuhiwoZd Lohdkj fd;k tkuk pkfg,A 1988¼1½ e-iz- ohDyh uksV~l 216 ¼mPpre U;k-½ vuqlfjrA ¼iSjk 13
Saksena, J. -- 1. Appellants have filed this appeal against the judgment dated 14.12.1993 passed by II Additional Sessions Judge, Sehore, in Sessions Trial No.98/1990, convicting appellant No.1 Bharat Singh under section 302 of the Indian Penal Code and appellant No.2 Babulal under section 302/34 of the Indian Penal Code and sentencing them to imprisonment for life with fine of Rs.1,000/- each. In default of payment of fine, further rigorous imprisonment for six months.
2. The prosecution case in nutshell is that on 7.1.1990, at about 8:45 in the night, Hari Om (deceased) and Kishorilal went to eat eggs at the shop of Kallu. Accused Bharat Singh was also present there. For some reason, an altercation ensued between them. When Hari Om was going back to his house, Bharat Singh and Babulal came armed with Gupti and Ballam. Acquitted accused Ramesh and Pannalal also reached there. Ramesh had a Lathi in his hand. On way, in front of the shop of Narayan, accused Babulal caught Hari Om from the back side and Bharat Singh dealt 3-4 blows of Gupti in his abdomen. Babulal and Ramesh also assaulted him and Pannalal exhorted them to kill him. On hearing noice, Rajendra Kumar (PW1), brother of Hari Om and Kaluram (PW4), his father also reached there and saw occurrence. Kallu, Kishorilal, Ram Singh and some other persons were also present there. After assaulting Hari Om, accused persons ran away.
3. Rajendra Kumar (PW1) rushed to Police Kotwali, Sehore and lodged the first information report (Ex.P-1) at 9:00 p.m. A case under section 307/34 of the Indian Penal Code was registered against four accused persons. Station Officer, R.S. Chudawat (PW15) rushed to spot and carried Hari Om to District Hospital, Sehore, however, Hari Om succumbed to his injuries. The case then converted under section 302/34 of the Indian Penal Code.
4. Dr. Laxmi Narayan Namdeo (PW16) conducted post-mortem examination of the body of deceased and vide his report Ex.P-26 found six incised wounds on his body. In his opinion, injuries found on the body of deceased were sufficient in ordinary course of nature to cause his death. On the same day, during investigation, statements of prosecution witnesses were recorded and accused were arrested. On the information given by accused Bharat Singh, a Gupti was seized from the bushes near Sindhi Dharamshala. Similarly, on the information of accused Babulal a Ballam was seized. Seized weapons were sent to Forensic Science Laboratory for examination and its report Ex.P-24 was obtained.
5. Accused Bharat Singh had also lodged a report on the same day i.e. on 7.1.1990 at Police Kotwali, Sehore, at 22:00 hours, which was recorded in Rojnamcha Sanha No.594/7.1.1990 by Head Constable Shiv Gopal (DW2). Accused Bharat and Babulal were sent for medical examination and their MLC reports (Exs.D-3 and D-4) were received. On the basis of aforesaid Rojnamcha report, Crime No.15/1990 under section 324 of the Indian Penal Code was registered. However, due to lack of evidence, final report was submitted.
6. After completion of the investigation, charge-sheet was filed and the case was committed to the Court of Sessions for trial.
7. During trial, accused persons abjured their guilt and pleaded false implication. In their statements, recorded under section 313 CrPC, they merely pleaded false implication without putting forth any particular defence version. They however examined Dr. A.B. Niyazi (DW1), Head Constable Shiv Gupta (DW2) and Station Officer R.S. Chudawat (DW3).
8. To substantiate its case, prosecution examined 16 witnesses.
9. Learned trial Judge, relying mainly on the evidence of eye-witnesses viz. complainant Rajendra Kumar (PW1) and Kaluram (PW4) and finding their evidence corroborated by the evidence of Durga Prasad (PW2), Kishorilal (PW3), Satpal (PW9), Hitesh (PW10) and Dr. Laxmi Narayan Namdeo (PW16) held the appellants-accused guilty and convicted and sentenced them, as mentioned above. However, finding the evidence not sufficien
