Madhav Paw vs State of Madhya Pradesh

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2023 Supreme(MP) 124

IN THE HIGH COURT OF MADHYA PRADESH
Sujoy Paul and Amar Nath (Kesharwani), JJ.
Madhav Paw & Others v. The State of Madhya Pradesh
Criminal Appeal No. 1854 of 2012 (Jabalpur): against the judgment dated 24.7.2012 passed by the Additional Sessions Judge, Anuppur in Sessions Case No. 235/2009;
Decided on 13.3.2023

Advocates:
Khalid Noor Fakhruddin for appellants;
S. K. Kashyap, Government Advocate for respondent/State.

Headnote:
(1) Evidence Act, 1872 -- S. 32 -- dying declaration -- no conclusive finding given by Court regarding trustworthiness of oral dying declaration -- conviction of appellants cannot get stamp of approval on basis of oral dying declaration. [Para 19
(2) Penal Code, 1860 -- Ss. 302/149, 34, 148 and 304 Pt. I -- appellant No. 3 allegedly caused lathi injury -- incident took place suddenly -- right of self-defence also to be considered because deceased persons tried to cultivate land of appellants -- in order to stop them, sudden quarrel and unfortunate incident took place, in which some appellants were also injured -- S. 34 or S. 149 cannot be pressed into service -- witnesses could not establish with accuracy and precision about nature of injury caused by appellant No. 3 by ‘lathi’ -- severe/grievous injury was caused by ‘tangi’ -- not safe to give stamp of approval to conviction of appellant No. 3 u/ss. 148 and 302 r/w S. 149 -- conviction modified to one u/s. 304 Pt. I with sentence of 10 years (2 counts). (1976) 1 SCC 28, (1974) 3 SCC 295, Ishwar (1976) 4 SCC 355, (2013) 12 SCC 76, (2002) 7 SCC 152, (1980) 3 SCC 68, (1996) 8 SCC 678, (1996) 11 SCC 72 and (2011) 12 SCC 235 followed. 2020 (1) MPLJ (Cri.) 7, (2015) 6 SCC 268 and (1998) SCC (Cri.) 906 referred to. [Paras 28 to 31
(3) Penal Code, 1860 -- Ss. 302/149 and 148 -- according to one witness, appellant No. 4 was standing with small child -- according to another witness, she was standing at far-off place and was shouting ‘maro-maro’ -- glaring contradiction in their testimonies
-- does not inspire confidence -- she did not use force or weapon -- her individual role does not bring her overt act within ambit of S. 302 -- she received certain injuries -- her conviction u/s. 148 and 302 r/w S. 149 cannot be approved-- acquitted. [Para 32
¼1½ lk{; vf/kfu;e] 1872 &&/kkjk 32 && e`R;qdkfyd dFku && U;k;ky; us ekSf[kd e`R;qdkfyd dFku dh fo'ouluh;rk ds ckjs esa dksbZ fu.kkZ;d fu"d"kZ ugha fudkyk && ekSf[kd e`R;qdkfyd dFku ds vk/kkj ij vihykFkhZx.k dh nks"kflf) dk vuqeksnu ugha fd;k tk ldrkA ¼iSjk 19
¼2½ naM lafgrk] 1860 &&/kkjk 302@149] 34] 148 rFkk 304 Hkkx 1 && vihykFkhZ Ø-3 us vfHkdfFkrr% ykBh ls {kfr dkfjr dh && ?kVuk vpkud ?kVh && vkRe&izfrj{kk dk vf/kdkj Hkh/;ku esa j[kk tkuk gksxk D;ksafd e`r O;fDr;ksa us vihykFkhZx.k dh Hkwfe dks tksrus dk iz;Ru fd;k Fkk && mUgsa jksdus ds fy,] vpkud >xM+k gqvk vkSj vfiz; ?kVuk ?kVh] ftlesa dqN vihykFkhZx.k Hkh {kfrxzLr gq, &&/kkjk 34 vFkok/kkjk 149 dk vkJ; ugha fy;k tk ldrk && vihykFkhZ Ø-3 }kjk ^ykBh* ls dkfjr {kfr dh izÑfr ds ckjs esa lk{khx.k ;FkkZFkrk vkSj lVhdrk ls fl) ugha dj lds && ^Vkaxh* ls xq#rj@xaHkhj {kfr dkfjr dh xbZ &&/kkjk 148 rFkk 302 lgifBr/kkjk 149 ds v/khu vihykFkhZ Ø-3 dh nks"kflf) dk vuqeksnu ugha fd;k tk ldrk && nks"kflf)] 10 o"kZ ds naMkns'k lfgr]/kkjk 304 Hkkx 1 ds v/khu ¼2 vfHk;ksx½ mikarfjrA ¼1976½1 ,l lh lh 28] ¼1974½3 ,l lh lh 295] ¼1976½4 ,l lh lh 355] ¼2013½12 ,l lh lh 76] ¼2002½7 ,l lh lh 152] ¼1980½3 ,l lh lh 68] ¼1996½8 ,l lh lh 678] ¼1996½11 ,l lh lh 72 rFkk ¼2011½12 ,l lh lh 235 vuqlfjrA 2020¼1½ ,e ih ,y ts ¼fØ-½ 7] ¼2015½6 ,l lh lh 268 rFkk ¼1998½ ,l lh lh ¼fØ-½ 906 fufnZ"VA ¼iSjk 28 ls 31
¼3½ naM lafgrk] 1860 &&/kkjk 302@149 rFkk 148 && ,d lk{kh ds vuqlkj vihykFkhZ Ø-4 NksVs cPps ds lkFk [kM+h Fkh && ,d vU; lk{kh ds vuqlkj og nwjLFk LFkku ij [kM+h Fkh vkSj ^ekjks&ekjks* fpYyk jgh Fkh && muds ifjlk{; esa vfrLi"V fojks/kkHkkl && fo'oklksRiknd ugha && mlus cy ;k gfFk;kj dk mi;ksx ugha fd;k && mldh O;fDrxr Hkwfedk mlds izR;{k dk;Z dks/kkjk 302 dh ifjf/k esa ugha ykrh && mls dfri; {kfr;k¡ igq¡ph &&/kkjk 148 rFkk 302 lgifBr/kkjk 149 ds v/khu mldh nks"kflf) vuqeksfnr ugha dh tk ldrh && nks"keqDrA ¼iSjk 32

JUDGMENT

1. This criminal appeal filed under section 374(2) of Criminal Procedure Code mounts challenge to the judgment dated 24.7.2012 passed in Sessions Case No. 235/2009 decided by learned Additional Sessions Judge, Anuppur whereby four accused persons were held guilty for committing offence under section 148 of I.P.C. and section 302 of IPC read with sections 149 of IPC (two counts) and directed to undergo sentence as under :--

Convicted under sections

Sentenced to undergo

148 of the IPC

302 read with 149 of IPC

(on two counts) for murdering

Toran Paw and Munna Paw.

R.I. for 3 years

Life imprisonment and fine of Rs.100/-

R.I. for 6 months (on each count).

With the direction that all the sentences shall run concurrently

2. At the outset, it is relevant to mention here that during the pendency of this appeal vide order dated 12.5.2015 and order dated 13.3.2023, the name of appellant No. 1- Madhav Paw and appellant No. 2- Mandal Paw were directed to be deleted. Thus, this appeal survives only for appellants No. 3 and 4.

3. Admittedly, the appellant No. 3-Amrika Paw is in actual custody for more than 14 years and 2 months whereas his wife appellant No. 4- Munni Bai got benefit of suspension of sentence on 14.12.2012.

4. In short, the case of the prosecution is that there was a land dispute between the appellants and the other side. On 18.6.2008, Toran Paw and Munna Paw left their house at around 6:00 A.M to cultivate the disputed land. The appellants reached the place of incident and a sudden quarrel had taken place, because of which, the appellants caused multiple injuries to Toran Paw and Munna Paw. As per the prosecution story, ‘lathi’ and ‘tangi’ were used to assault Toran Paw and Munna Paw.

5. The appellant No. 4, as per the prosecution story, was standing at the scene of crime and was using abusive words. Kunwar Paw (PW-4) is an eye- witness, who reached the place of incident. Toran Paw and Munna Paw succumbed to the injuries.

6. The Sarpanch of the village namely Indrapal lodged the ‘Merg’. Intimation/First Information Report. Both the dead bodies were subjected to post-mortem. The post-mortem reports are Ex.P/11 and Ex. P/12. The statements of Madhav Paw, Mandal Paw and Amrika Paw were recorded and on the basis of their memorandums recorded under section 27 of Indian Evidence Act, a ‘tangi’ was recovered from Mandal Paw and a ‘lathi’ was recovered from appellant No. 3- Amrika Paw. Appellants were arrested. The weapons were seized and sent to Forensic Science Laboratory (FSL). After investigation, challan was filed. In due course, the matter was committed and came before the learned Sessions Judge. The appellants abjured the guilt and prayed for full-fledged trial.

7. The Court below framed six points for its determination. After recording the evidence and hearing the parties, the impugned judgment has been passed convicting the appellants for committing offences under sections 148 and section 302 read with section 149 of I.P.C (two counts).

Contention of appellants :-

8. Shri Khalid Noor Fakhruddin, learned counsel for the appellants submits that Kunwar Singh (PW-4) is the alleged eye-witness. In addition, this witness deposed that Munna before his death informed him that all the five accused persons assaulted him. However, the Court below has not given any finding whether this oral dying declaration is trustworthy or not. Thus, oral dying declaration cannot be pressed into service. Moreso, when Sarpanch Indrapal (PW-1) has categorically deposed that when he received the information from various villagers, he gathered that because of assault both the injured persons who later-on died were unable to speak. This contention of appellants was specifically raised and recorded by Court below in Paras 49 and 50 of the judgment but Court below has not given any finding on this content