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2020 Supreme(MP) 225
MADHYA PRADESH HIGH COURT BENCH AT INDORE
Virender Singh, S.K Awasthi, JJ.
Nihaal Singh : Sanju @ Sanjay : Sunil - Appellant
Versus
State Of M.P. - Respondent
CRA Nos.1379/2014, 1391/2014, 1426/2014
Decided On : 25-01-2020
Shri Virendra Sharma, Learned Counsel, for the Appellants; Shri Sandeep Mehta, Learned Public Prosecutor, for the Respondent/State
The central legal point established in the judgment is the application of Section 304 part II of IPC based on the absence of evidence of intention, preparation, or premeditation to kill, and the surrounding circumstances.
Headnote:
IPC - Conviction under section 302/34 and 450 - [302, 34, 450] - The court discussed the evidence and legal provisions related to the intention, use of deadly weapons, criminal antecedents, and surrounding circumstances. The court referred to the cases of Madhavan and Ors. Vs. State of Tamil Nadu, Sikandar Ali Vs. State of Maharashtra, Arjun and Anr. Vs. State of Chhattisgarh, Elavarasan Vs. State and Mahesh Vs. State of M.P. to support its decision to partly allow the appeals and convict the appellants under Section 304 part II of IPC instead of Section 302 IPC.
Fact of the Case:
The appellants were convicted under section 302/34 and 450 of the IPC for causing the death of the deceased during an altercation over fetching water from a hand pump. The appellants appealed against the conviction, arguing that there was no intention to kill the deceased and that the case fell within the purview of Section 304 part II of IPC.
Finding of the Court:
The court found that there was no evidence of intention, preparation, or premeditation to kill the deceased. It considered the surrounding circumstances and the absence of deadly weapons and criminal antecedents of the appellants. The court partly allowed the appeals and convicted the appellants under Section 304 part II of IPC instead of Section 302 IPC.
Issues: The issues revolved around the intention to kill, use of deadly weapons, criminal antecedents, and the nature of the offence.
Ratio Decidendi: The court relied on the absence of evidence of intention, preparation, or premeditation to kill, as well as the surrounding circumstances, to convict the appellants under Section 304 part II of IPC instead of Section 302 IPC.
Final Decision: The court confirmed the conviction and sentence of the appellants under Section 450 IPC and set aside the conviction and sentence under Section 302 IPC. The appellants were convicted under Section 304 part II of IPC and awarded 10 years Rigorous imprisonment with a fine of Rs. 10,000/- each.
JUDGMENT
Virender Singh, J. - All these three appeals have arisen out of same judgment, therefore, they are heard analogously and are being decided by this common judgment.
2. The appellants have preferred these appeals against judgment and order dated 28.08.2014 passed in Sessions Trial No. 337/2013 by VII Additional Sessions Judge, Ujjain, whereby the appellants have been convicted under section 302/34 and 450 of the IPC and have been awarded life imprisonment and 5 years RI with fine of Rs.10,000/-and 2,000/- each respectively and in default of payment of fine, further to undergo rigorous imprisonment for three years and six months respectively.
3. The prosecution case in brief is that on 20.02.2013 at about 09:30 in the night in village Khatikhedi, District Ujjain near the house of Pope Singh, all the accused persons having battle axe and sticks in their hands constituted an unlawful assembly with intend to beat his son Mahipal on account of some altercation took place between Mahipal and the appellants on the preceding night on the issue of fetching water from the hand pump. They accosted the house, but Mahipal ran away. The appellants chased caught and beat him near Jai Maharaj Ka Bada . Here the accused Karan and Rajesh also joined them. They also beat Mahipal, but Amarsingh PW/3 rescued him. The appellant Nihal Singh also threatened him to kill. Mahipal sustained injuries including a severe injury on the head. Sarpanch Mukesh and Jitendra took him to Dewas for treatment. His father Pope Singh lodged FIR No. 18/2013 at Police Station Kaytha, which was registered under section 452, 323, 294, 506/34 of the IPC.
4. In District Hospital, Dewas, Dr. Narendra Raj PW/13 examined him on 21.02.2013 at about 00:35 in the night and advised X-ray of head. He was immediately taken to the MY Hospital, Indore and was admitted there at about 03:18 a.m. In M.Y. Hospital, Dr.Anupam Kulshrestha PW/11 and Mansi Chouhan started treatment, but his family members took him to Synergy Hospital and thereafter, to Aurobindo Hospital, Indore where during treatment, he died on 02.03.2013. The death was intimated to the Police Station Badganga, Indore (Ex.P/6), who sent it to the concerned Police Station Kaytha, District Ujjain, where Merg Ex.P/25 was registered. On 03.03.2013, Dr. Shailendra Patel PW/7 performed post-mortem and submitted report Ex.P/9. He opined that the death of Mahipal was due to injury caused on head and its complications. The police converted the case into one under section 302 IPC and investigated the same.
5. Sub-inspector Madhav Sharma PW/9 investigated the case. He visited the spot, prepared spot maps Ex.P/2 & P/3 of the house and farmland of the deceased, arrested the accused persons vide arrest memo Ex.P/10 to 14, recorded their statements under section 27 of the Evidence Act Ex.P/15 to19, recovered battle axe from appellant Sanju and sticks from other appellants vide seizure memo Ex.P/20 to 24, seized medical papers from Aurobindo Hospital vide seizure memo Ex.P/35 and P/36, seized blood stained and plain soil from the spot, sent all the seized articles to the FSL vide letter Ex.P/32 and filed charge-sheet after completing the investigation.
6. All the accused persons were charge under section 148, 450, 302 in alternate 302/149, 294 and 506 Part II of the IPC. They abjured their guilt and prayed for trial. After the trial, accused Rajesh and Karan were acquitted from all the charges while accused/appellants Sunil, Sanjay and Nihal Singh were acquitted from the charge under section 148, 294, 506 Part II of the IPC , while they were convicted under section 450 and 302 and 302/34 of the IPC and punished as stated in para 2 above.
7. The appellants have preferred these appeals on several grounds, but during arguments learned counsel for the appellant submitted that he does not want to press merits of the appeal and also does not want to press conviction and imprisonment of the appellants under section 450 of the IPC.
8. It is
