Ishwar Singh vs State Of Madhya Pradesh

This Criminal Appeal at the instance of convict, Ishwar Singh under Section 374 Cr.P.C., has been filed feeling aggrieved by the judgment of conviction and order of sentence dated 19.4.2014 passed in S.T.No.200/2012 by the Additional Sessions Judge, Sarangpur, District Rajgarh (Biaora).

The appellant is convicted under Section 302 of IPC and thereby sentenced him to suffer life imprisonment with fine of Rs.10,000/- & default clause as also under Section 341 of IPC and thereby sentenced him to suffer one month simple imprisonment with fine of Rs.500/- with default clause, respectively and both the sentence shall run concurrently.

The appellant has been acquitted for the offence under Sections 294 and 506 part II of IPC, however, the State has not preferred any appeal against such acquittal. The same has attained finality.

Likewise, the co-accused Shivsingh and Kaniram have been acquitted from the offence under sections 341, 294, 506 Part-II and 302 read with section 34 IPC, however, the State has not preferred any appeal against their acquittal. The same has attained finality.

As per prosecution story, on 17/10/2009, the complainant Beerum alongwith his son, Panchram and two other sons; Gopilal & Ram returning to their camp after grazing cattle, reached near the Charnoi Bhumi (grazing field) where the accused Ishwar alongwith two other accused are grazing buffaloes. The accused, Ishwar stopped them on their way and abused the complainant and his sons with filthy language on the premise not to travel with cattle from that side. Panchram tried to intervene and resisted Ishwar not to abuse them. On this, the accused-appellant threw a stone bolder towards Panchram, son of the complainant, which hit on the head of Panchram as a result Panchram fell down and suffered serious injuries. Thereafter, appellant alongwith other two accused persons assaulted Panchram and his son by kicks and fists. The accused flew away again uttering filthy language and threatened to face dire consequences. Accordingly, the offence under Section 302, 294,, 307, 506 of IPC was registered against the appellant at Crime No.229/2009. After death of Panchram, on 18/10/2009, sections 302 and 302/34 IPC have been added.

P.W.2 Beerum lodged FIR (exhibit P/2) at the Police Station Chhapiheda, District Rajgarh (Biaora). Case was registered under sections 341, 294, 307, 506 read with section 34 IPC and 336 IPC. The investigation was carried out by Yongendra Singh Dangi, Station House Officer (P.W.10). Spot map was prepared vide exhibit P/5 and recovered the stone boulder, simple earth and blood stained soil and prepared panchnama vide exhibit P/18. The injured was sent for medical treatment to Primary Health Centre, Chhapiheda. The MLC Dr. D.R.Pachisiya (P.W.4) found the following injuries:

(i) Bleeding present on the left ear;

(ii) Lacerated 4 cm x 1 cm x bone deep on the introparital region

(iii) Abrasion 3 cm x 1 cm on right leg knee joint.

Nature of injuries (i) & (ii) referred for x-ray of skujll and injury no.(iii) is simple in nature. All the injuries by hard and blunt object. Duration 12 hours.

During the course of treatment on 18/10/209, the injured died.

The body of deceased was sent for post mortem vide exhibit P/10.

Dr. D.R.Pachisiya (P.W.4) conducted post mortem (exhibit P/11) has found the aforesaid injuries antimortem in nature by hard and blunt object and opined that death was caused due to asphyxia and shock due to injury on vital organ. As such, deceased had suffered death within 12-24 hours of the post mortem.

The Additional Sessions Judge while carefully examining the evidence of eye-witness has found that there is consistency in the statement of P.W.2 Beerum, P.W.8 Gopilal alias Gopirao and other independent witness, P.W.1 Bherulal. On account of overwhelming evidence of occurrence of the incident and involvement of the accused/appellant, seizure memos (exhibits P/5 & P/18), post mortem report (exhibit P/11) and evidence of Dr. D.R.Pachisiya (P.W.4) as well as the FSL reports (exhibits P/28 & 29), the trial Court has concluded that the accused/Ishwar Singh caused injury by pelting a stone boulder resulting into death of the deceased, Panchram. Accordingly convicted and sentenced the accused/appellant as mentioned above.

Learned counsel for the appellant while criticizing the judgment contended that the Additional Sessions Judge has committed grave illegality having relied upon the evidence led by cited eye-witness, i.e., P.W.2 Beerum being thickly related with the deceased, Panchram while concluding that the appellant committed murder of the deceased.

An alternative submission has also been put-forth by the learned counsel relying upon the judgment rendered by the Hon'ble Supreme Court in the case of Nawas Vs. The State, Cr. Appeal Nos.1941/2010 & 2153/2013 decided on 22/01/2019 and two division decisions of this Court in Lurchriya @ Nurchiya s/o Butha Vs. State of M.P., 2006(3) MPLJ 366 & Shivlal and another Vs. State of M.P., 2008(I) MPJR 197 that 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 19.4.2014 and has undergone about seven years of the sentence including remission period, there is no previous criminal conduct of the appellant, the appellant is an agriculturist aged about 38 years, 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 has supported the impugned judgment and findings arrived at by the trial Court and submitted that the conviction in question is well merited.

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 by a stone boulder 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 entering cattle into the field where the accused was grazing the buffaloes. A stone boulder used might be lying on the agricultural field. The accused/appellant gave a single blow on the head of the deceased with the stone boulder 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 seven years, one month, eight days including remission as per report dated 12.02.2019 submitted by the Officer of Superintendent, Central Jail, Ujjain. The alleged incident took place on 17.10.2009, 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, Ishwar Singh are substituted from section 302 to section 304 Part-II IPC with fine of Rs.10,000/- in default of deposit of fine he has to undergo one year rigorous imprisonment and under section 341 IPC with fine of Rs.500/- and in default of deposit of fine, he has to undergo seven days imprisonment.

In the obtaining facts and circumstances as the appellant has already undergone about seven years of sentence, he is sentenced to the period already undergone in the jail custody.

Cr. Appeal No.730/2014 (Ishwar Singh Vs. State of M.P.,)

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, Ishwar Singh 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.