Kamlendra Singh vs State Of Madhya Pradesh

This criminal appeal under Section 374 (2) of the Code of Criminal Procedure has been preferred by the appellant being aggrieved of the judgment

dated 14/11/2017 passed by the First Additional Sessions Judge, Panna in ST No.95/2015, whereby the present appellant has been convicted and

sentenced as under:

304 Part-II of IPC RI for 5 years RI for 6 months with fine of Rs.2,000/-

In brief the facts of the case are that on 23.6.2015 at around 11:00 AM when complainant/ deceased Durga Prasad Kewat was going on a

bullockcart along with his son Ram Pratap from Village Damchua to Village Pukhra, and when he came across the house of Vishal Gond, at that time

appellant Kamlendra Singh and juvenile Upendra Singh came with sticks in their hands and due to dispute which had occurred between the parties

around four months ago, started abusing them and Durga Prasad Kewat was dragged from the cart and was beaten by the accused persons, although

his son Ram Pratap tried to stop them, but they did not listen and at that time another accused Guddan alias Lokendra also came on the spot and put

the injured Durga Prasad Kewat back in the cart and also threatened them of dire consequences. A report in this respect was made at around 1:03

PM on the same day i.e. on 23.6.2015 and Crime No.41/2015 was registered against the present appellant, co-accused Guddan alias Lokendra and

juvenile Upendra Singh. Injured Durga Prasad Kewat was taken to the PHC Rakseha where he was referred to the District Hospital, Panna. Dr.

Sharad Chourasiya (PW-1) examined injured Durga Prasad Kewat and gave his MLC report (Ex.P-1), however at around 4:00 O’clock injured

Durga Prasad Kewat succumbed to the injuries hence a marg intimation (Ex.P-11) was also recorded. Postmortem report (Ex.P-16) was prepared by

Dr. Neeraj Jain (PW-16). On account of death of deceased Durga Prasad Kewat, Section 302 of IPC was also added. After investigation, a charge

sheet was filed and the learned Judge of the trial Court after recording the evidence has convicted the appellant as aforesaid. Being aggrieved by the

impugned judgment, the appellant has preferred the present appeal.

Learned counsel for the appellant has submitted that no case under Section 304 (Part-II) of IPC can be made out against the appellant, as even

according to the post-mortem report (Ex.P-16) prepared by Dr. Neeraj Jain (PW-16), the deceased had received as many as 12 injuries but there was

hardly any injury except injury No.9 which was on the head, which can be said to be grievous in nature. Although from the internal examination the

doctor has found that his third, sixth and seventh ribs were fractured and on account of this fracture, his internal organs specially the right lung had an

injury. He had also a fracture on the left humerus and the cause of death is said to be the injury caused on the lung.

Learned counsel for the appellant has further submitted that the appellant had no knowledge that the death is likely to be caused, as the deceased

was thrashed by the appellant only on a spur of moment in order to teach a lesson. Thus, learned counsel for the appellant has submitted that the

sentence of five years is on higher side looking to the fact that the appellant did not cause any injury but also the fact that the appellant was also aged

around 21 years. Learned counsel for the appellant has further submitted that the appellant has already undergone the sentence of more than three

years, and therefore he may be sentenced to the period already undergone by him.

On the other hand, learned counsel for the State has opposed the prayer of the appellant and has submitted that the appellant has rightly been

convicted by the learned Judge of the trial Court, and hence his appeal may be dismissed.

Heard the learned counsel for the parties and perused the record.

After going through the record and the statements made by the prosecution, this Court is of the considered opinion that no illegality or jurisdictional

error has been committed by the learned Judge of the trial Court in convicting the present appellant, as the death of the deceased has rightly been

proved by Dr. Neeraj Jain (PW-16), which was homicidal in nature.

So far as the involvement of the present appellant is concerned, it finds support by the testimony of Ram Pratap Kewat (PW-14), who has clearly

stated that on the date of incident while he was going on a cart with his father, and when they reached near the house of Vishal Gond, at that time

appellant Kamlendra Singh and juvenile Upendra Singh came with sticks in their hands and started abusing them and dragged his father from the cart

and was beaten by the accused persons. Apart from this, the testimony of this witness, which may be said to be an interested witness, however there

is nothing for this Court to disbelieve his statement, as this is an initial story of the prosecution that the deceased was going along with his son Ram

Pratap Kewat. Apart from that there are other eye-witnesses, who have been examined by the prosecution and have not supported the case of the

prosecution, even the seizure witness Pran Krishna (PW-12) has not supported the case of the prosecution, but as already observed that the case of

the prosecution right from the beginning was that the deceased was going along with his son Ram Pratap and as such the deposition of Ram Pratap

(PW-14) cannot be said to be floated in any manner when he has already narrated the story with the same particulars as has been narrated in the FIR

(Ex.P-21) which has been lodged by the deceased himself. The statement of the deceased was also recorded under Section 161 of Cr.P.C. by Sub

Inspector NR Dubey (PW-18) at Police Station Brajpur. Since no other official dying declaration of the deceased could be recorded, the FIR lodged

by him and the statement recorded under Section 161 of Cr.P.C. can be said to be the dying declaration under Section 32 of the Evidence Act, 1872,

as the same relates to cause of his death. There is no reason for this Court to disbelieve the testimony of Sub Inspector NR Dubey (PW-18), who has

recorded the FIR as well as statement under Section 161 of Cr.P.C. nothing substantive could be extracted from the cross examination of this witness

as well. In view of the same, in the considered opinion of this Court, no illegality or jurisdictional error has been committed by the learned Judge of the

trial Court in convicting the present appellant for the aforesaid offence.

So far as the question of quantum of sentence is concerned, the same needs to be modified looking to the injuries which have been extended by the

appellant with the aid of stick and considering the fact that the death has been caused due to internal injury of the lung, which was ruptured on account

of fracture in the ribs. In view of the same, the submission of the learned counsel for the appellant that the appellant may be sentenced to the sentence

already undergone by him, which is 3 ½ years, and the same appears to be reasonable.

In the result, the criminal appeal stands partly allowed. The conviction awarded by the learned Judge of the trial Court against the present

appellant is hereby maintained, but the appellant is sentenced to the period already undergone by him by further imposing an additional fine of

Rs.50,000/-, which shall be deposited by the appellant within a period of 30 days from the date of his release before the trial court, failing which he

shall undergo the remaining part of his jail sentence. If the aforesaid sum is deposited by the appellant, then the same may be disbursed by the trial

Court to the legal representatives of the deceased Durga Prasad Kewat. At present the appellant is in bail, he be released forthwith, if not required in

any other case.

A certified copy of this judgment be sent to the learned court below for compliance, if any.