Bhagirath S/O Devilal Prajapati vs State Of Madhya Pradesh

This Criminal Appeal at the instance of convict, Bhagirath under Section 374 Cr.P.C., has been filed feeling aggrieved by the judgment of conviction and order of sentence dated 04.10.2010 passed in Sessions Trial No.139/2009 by the Sessions Judge, Shajapur (M.P.).

The appellant is convicted under Section 302 of IPC and thereby sentenced him to suffer life imprisonment with fine of Rs.5,000/- with default clause.

The appellant has been acquitted for the offence under Sections 302/34, however, the State has not preferred any appeal against such acquittal. The same has attained finality.

As per prosecution story, on 19.01.2009, the deceased Kamlesh went to his in-laws with his uncle Hazarilal, brother Mukesh situated at village Sandavata. Due to some dispute regarding bringing his wife back to his house, deceased brother-in-law Jitendra slapped him and father-in-law assaulted Kamlesh with a hammer, due to which Kamlesh fell down and blood was oozing. Hazarilal and Mukesh ran away from the spot. Thereafter, Mukesh tried to contact his uncle Gangaram but, unable to contact him and they went to village Boda and narrated the whole incident to Gangaram and others. The injured Kamlesh was taken to Chhapiheda Hospital by the Police, whereafter primary treatment and looking to his serious conduct as per exhibit P/11, he was referred to Rajgarh, and further to Hamidia Hospital, Bhopal where on 20.01.2009, he died during the treatment.

On the basis of information given by one Ms. Sandhya Prajapati, initially marg was registered at crime No.0/09 and the same was duly registered as FIR at crime No.12/09 at Police Station Chhapiheda in respect of alleged incident dated 19/01/2009 for the offence punishable under section 307 IPC against the accused/appellant.

The investigation was carried out. Arrest panchnama prepared and arrested the accused vide exhibit P/5 and recorded his statement vide exhibit P/6 and based on information furnished by him; seized hammer used in the commission of offence vide exhibit P/7. Spot map was prepared vide exhibit P/8, The injured was sent for medical treatment to Primary Health Centre, Chhapiheda. The MLC Dr. Kailash Narayan Bilware (P.W.8) found the following injury:

(i) Stab wound with bleeding one margin shape and other lacerated 2 cm x 2 cm x 4 cm at the (not clear) 3rd and 4th rib of left side of chest by sharp weapon within 24 hours.

After symptomatic and (not clear); referred to District Hopsital, Rajgarh.

Looking to his serious condition, he was further referred to Hamidia Hospital, Bhopal.

During the course of treatment on 20/01/2009 the injured died. The body of deceased was sent for post mortem vide exhibit P/14.

On the basis of Marg No.0/28/09 (exhibit P/15), the FIR (exhibit P/19) at crime No.36/09 was registered at Police Station Chhapiheda against the appellant on 06.02.2009 for offence punishable under Section 302/34 of IPC.

Dr. Geeta Rani Gupta (P.W.7) conducted post mortem (exhibit P/9) and short report vide exhibit P/10 has found various injuries and opined that death was caused due to cardiorespiratory failure as a result of head injury. Injuries have been caused by hard and blunt object. Death is homicidal in nature. Duration of death is within 24 hours of the post mortem.

The Sessions Judge while carefully analyzing the evidence of eye-witness has found that there is consistency in the statements of P.W.2 Mukesh, P.W.9 Hazarilal and P.W.13 Mahesh. On account of overwhelming evidence of occurrence of the incident and involvement of the accused/appellant, naksha panchnama, seizure memo, spot map, etc., [exhibits P/2, P/7, P/8], MLC report (exhibit P/11), post mortem report (exhibit P/9), post mortem short report (exhibit P/10) and evidence of MLC Dr. Kailash Narayan Bilware (P.W.8) & Dr. Geeta Rani Gupta (P.W.7) as well as the FSL reports (exhibits P/22 & 23), the trial Court has concluded that the accused/Bhagirath caused injury by hammer resulting into death of the deceased, Kamlesh. Accordingly convicted and sentenced the accused/appellant as mentioned above.

Learned counsel for the appellant while criticizing the judgment has raised three-fold contention, firstly; there was delay in lodging the FIR, secondly; there was no explanation forthcoming for the injuries caused on the accused and thirdly; the Sessions Judge has committed grave illegality having relied upon the evidence led by cited eye-witness, i.e.,P.W.2 Mukesh, P.W.9 Hazarilal and P.W.13 Mahesh being thickly related with the deceased, Kamlesh while concluding that the appellant committed murder of the deceased.

An alternative submission has also been put-forth by the learned counsel that the accused and deceased closely related and since the incident occurred all of sudden on account of some petty issue and the appellant was not having any intention to kill the deceased, and therefore, at the most the case would rest under the ambit of Section 304 Part - II IPC. The appellant in jail since 04/10/2010 and has undergone about eight and half years of the sentence including the period he was in jail during trial from 12/02/2009 to 20/04/2009 (02 months 07 days), there is no previous criminal conduct of the appellant, the appellant was in service as Lineman and aged about 50 years at the time of incident, hence, his future will be spoiled in the midst of harden criminals inside the jail and, therefore, prays for reduction of jail sentence to the period already undergone by the appellant.

On the contrary, learned Public Prosecutor and the learne counsel for the objector/complainant have supported the impugned judgment and findings arrived at by the trial Court and submitted that the conviction in question is well merited.

In the obtaining facts and circumstances, it is held that there is no delay in lodging the FIR. The injuries on the person of the accused have not been duly proved. Hence, the contention in that regard is rejected.

However, looking to the unimpeachable testimony of the eye-witnesses and the medical evidence, according to us, trial Court did not commit any error in holding that the deceased had died on account of causing injury by the appellant on the person of the deceased.

We shall now advert ourselves to the alternate submission put-forth by the learned counsel for the appellant.

It is borne out from the testimony of the eye-witness and other attending circumstances that the incident had occurred all of a sudden on account of some petty dispute of taking away his wife by the deceased from his in-laws house. The hammer used in the commission of the offence and gave a single blow on the head of the deceased in the heat of passion as a result he fell down and succumbed to the injuries during treatment. Hence, we are of the view that all the ingredients of Exception 4 of section 300 IPC are found proved in the instant case. Thus, according to us,the appellant was not having any intention to kill the deceased and it appears that the incident was occurred all of a sudden in the heat of passion. There was no pre-meditation and pre-plan to kill the deceased and therefore, at the most the present case would rest under Section 304 Part-II of the IPC, because there was no intention of the appellant to kill the deceased but, he was having knowledge that by his act, the deceased may die. Thus, we accordingly hold that the appellant has committed the offence punishable under Section 304 Part II of the IPC, Therefore, we hereby alter the conviction of the appellant from section 302 to section 304 Part-II IPC.

With regard to the sentence awarded is concerned, the appellant has been sentenced by trial Court referred hereinabove. No previous criminal conduct of the appellant has been proved by the prosecution. The appellant has remained in the custody for about eight and half years. The alleged incident took place on 19/01/2009, i.e., about ten years back. As such, the ends of justice shall be sub-served, if the jail sentence of the appellant is reduced to the period already undergone by him.

For the foregoing reasons, we allow this appeal in part. The conviction and sentence of the appellant, Bhagirath are substituted from section 302 to section 304 Part-II IPC with fine of Rs.5,000/- in default of deposit of fine he has to undergo two months additional rigorous imprisonment. Since appellant has already undergone about eight and half years of sentence, he is sentenced to the period already undergone in the jail custody.

The amount of fine, if not, deposited earlier be deposited within a period of two months from today, in default thereof, the defaulting clause will come into play.

The appellant, Bhagirath is in custody, he is set at liberty forthwith, if not required, in any other criminal case.

The Registry is directed to send copy of this judgment immediately along with the record to trial Court, for necessary compliance.