Maitha vs State of Madhya Pradesh

S.K. Gangele, J.—Since both Criminal Appeal No. 346/1999 and Criminal Appeal No. 573/1999 have been arisen out of common judgment of conviction and order of sentence dated 30/06/1999, passed by the learned First Additional Sessions Judge, Guna (MP) in Sessions Trial No. 382/1998 hence, they are being taken together and disposed of by this common judgment. Appellant Maitha [in Criminal Appeal No. 346/1999] and appellant Phool Singh [in Criminal Appeal No. 573/1999] have been convicted u/s 302/ 34 of IPC and sentenced to suffer imprisonment for life with fine of Rs. 5,000/- with default stipulation.

The prosecution story, in short, is that on 27-10-1998 complainant Ramlal lodged a report of the incident (Ex. P-1) at the police station Sirsi to the effect that on 27-10-1998 at about 14:00 hours he had gone along with his brother Kishanram, Bakar (PW2) and Harlal (PW3) to village Jalampur for grazing lambs. Some of his lambs entered in the land of Phool Singh where crops of pulses were standing. Accused Phool Singh abused Kishanram. On that, Kishanram objected not to abuse him. Thereupon, accused Phool Singh gave a lathi blow on the back of Kishanram and accused Maitha struck a pointed bolder on the stomach of Kishanram, as a result of which Kishanram sustained injuries and died on the spot. During investigation, police prepared Panchnama of the dead body of deceased Kishanram and prepared spot map vide Ex. P4 and Ex. P2. Thereafter, the dead body of the deceased was sent for post mortem examination. Injured-complainant Ramlal (PW1) was also sent for medical examination. A lathi was seized from the possession of appellant-accused Phool Singh vide seizure memo Ex. P11 and stone was seized from the spot vide seizure memo Ex. P9. After completion of investigation and other formalities by the police charge-sheet u/s 302 read with Section 34 of IPC was filed against the appellants-accused before the competent Court from where the case was committed to the Sessions Court for trial.

During trial, the appellants-accused persons abjured their guilt and pleaded their innocence. After conclusion of trial, the learned trial Court after appreciation of evidence, convicted both the appellants u/s 302 read with Section 34 of IPC and sentenced them accordingly as stated above.

Learned counsel appearing for both the appellants have contended that the trial Court committed an error of law in holding the appellants guilty beyond reasonable doubt. It is further contended that in alternative the appellants could be convicted u/s 304 Part II of IPC looking to the evidence available on record. It is prayed by learned counsel for the appellants that the sentence awarded by trial Court to the appellants be modified accordingly and it be reduced to the period already undergone by them because the appellants remained in custody for substantial period i.e. more than five years and six years respectively. In support of the contentions, learned counsel for the appellants have relied on the following judgments:-

(I) Bagdi Ram Vs. State of Madhya Pradesh, and

(II) Ranjitham Vs. Basavaraj and Others,

Contrary to this, learned Public Prosecutor has submitted that there is enough evidence available on record to hold the appellants guilty for commission of offence u/s 302 read with Section 34 of IPC. Learned Public Prosecutor further submitted that first accused Phool Singh inflicted lathi blow on the back of the deceased and thereafter accused Phool Singh struck a pointed bolder on the stomach of the deceased as a result of which the deceased died on the spot. Hence, the trial Court has rightly convicted and sentenced both the appellants-accused u/s 302/ 34 of IPC.

We have heard the learned counsel for the parties and also perused record of the trial Court.

The arguments advanced by learned counsel for the appellant that the trial Court has committed an error in holding the appellants-accused guilty for the offence alleged against them, could not be accepted because the report of the incident was lodged at police station Sirsi by the complainant on the same date at 16:00 hours and complainant Ramlal (PW1) in the FIR as well as in his statement specifically stated that both the appellants inflicted injuries to deceased Kishanram by means of bolder and lathi. In his statement the complainant stated that when he tried to rescue the deceased appellant-accused Maitha also inflicted injuries on his back by means of bolder. The injuries sustained by the deceased and the injured have been corroborated by medical evidence. In our opinion, the trial Court has rightly held the appellant-accused guilty beyond reasonable doubt.

However, we find substance in the arguments advanced by learned counsel for the appellants to the extent that offence against the appellants-accused could not be made out u/s 302 read with Section 34 of IPC. As per version of the FIR and the statements of complainant-injured Ramlal (PW1) and other prosecution witnesses, since the incident took place all of a sudden at a spur of moment in a heat of passion on account of entry of lambs of the complainant in the field appellant-accused Phool Singh and there was no premeditation or pre-planning on the part of the accused-appellants for committing the aforesaid alleged offence.

Dr. P.K. Sharma (PW7) who conducted post mortem of deceased Kishanram, found following injuries on the body of the deceased:-

(1) Abrasion-right side back 1 cm x 1 cm lumber region

(2) Abrasion-back 2 x 2 cm lumber region

(3) Abrasion-right shoulder joint superior 1 x 1 cm

(4) contusion - left side cage 4 x 4 cm colour reddish over 8th 9th 10th left side rib.

As per opinion of the doctor, the death of the deceased was shock due to rupture of spleen and internal bleeding. Duration of death of the deceased was within 48 hours. All the injuries are ante mortem in nature. From the evidence of doctor, it is clear that appellants caused injuries to the deceased by means of lathi and bolder on the back and stomach of the deceased, as a result of which the deceased died on the spot.

Dr. Narendra Kumar Sharma (PW9) who had also examined injured-complainant Ramlal (PW. 1) as per medical report Ex. P18, found only one injury as under:-

(1) Contusion 5x 2 cm over left scapular region, on the back red in colour caused by hard and blunt object.

According to doctor, the injury sustained by injured-complainant Rampal (PW1) was simple in nature.

Hon''ble the Supreme Court in the case of Ranjitham (supra) after considering the earlier judgments of the Court, has held as under in regard to conviction only for culpable homicide not amounting to murder u/s 304 Part II of IPC:-

In AIR 1983 185 (SC) there was an altercation between the appellant and the deceased. The appellant had remarked that the deceased must be beaten to make him behave. He thereafter ran inside the house, brought out a jeli and thrust it into the chest of the deceased. This Court observed that (SCC p. 194, para 3) in the heat of altercation between the deceased on the one hand, and the appellant and his comrades on the other, the appellant seized a jeli and thrust it into the chest of the deceased. This was preceded by his remark that the deceased must be beaten to make him behave. Therefore, it does not appear that there was any intention to kill the deceased. This Court, therefore, set aside the conviction of the appellant u/s 302 IPC and instead convicted him u/s 304 Part II IPC and sentenced him to suffer rigorous imprisonment for five years.

In Jagtar Singh Vs. State of Punjab, , in a trivial quarrel the appellant wielded a weapon like a knife and landed a blow on the chest of the deceased. This Court observed that the quarrel had taken place on the spur of the moment. There was exchange of abuses. At that time, the appellant gave a blow with a knife which landed on the chest of the deceased and therefore, it was permissible to draw an inference that the appellant could be imputed with a knowledge that he was likely to cause an injury which was likely to cause death but since there was no premeditation no intention could be imputed to him to cause death. This Court, therefore, convicted the appellant u/s 304 Part II IPC instead of Section 302 IPC and sentenced him to suffer rigorous imprisonment for five years.

In Hemraj Vs. State (Delhi Admn.) 1999 SCC (Cri.) 713 : 1999 Supp. SCC 291, the appellant and the deceased had suddenly grappled with each other and the entire occurrence was over within a minute. During the course of sudden quarrel, the appellant dealt a single stab which unfortunately landed on the chest of the deceased resulting in his death. This Court observed that (SCC p. 295, para 14) as the totality of the established facts and circumstances show that the occurrence had happened most unexpectedly, in a sudden quarrel and without premeditation during the course of which the appellant caused a solitary injury to the deceased, he could not be imputed with the intention to cause death of the deceased, though knowledge that he was likely to cause an injury which is likely to cause death could be imputed to him. This Court, therefore, set aside the conviction u/s 302 IPC and convicted the appellant u/s 304 Part II IPC and sentenced him to undergo rigorous imprisonment for seven years.

In V. Subramani and Another Vs. State of Tamil Nadu, , there was some dispute over grazing of buffaloes. Thereafter, there was altercation between the accused and the deceased. The accused dealt a single blow with a wooden yoke on the deceased. Altering the conviction from Section 302 IPC to Section 304 Part II IPC, this Court clarified that it cannot be laid down as a result of universal application that whenever death occurs on account of a single blow, Section 302 IPC is ruled out. The fact situation has to be considered in each case. Thus, the part of the body on which the bow was dealt, the nature of the injury and the type of the weapon used will not always be determinative as to whether an accused is guilty of murder or culpable homicide not amounting to murder. The events which precede the incident will also have a bearing on the issue whether the act by which death was caused was done with an intention of causing death of knowledge that it is likely to cause death but without intention to cause death. It is the totality of circumstances which will decide the nature of the offence.

In the present case also the incident took place all of a sudden on account of entering the lambs in the land of accused Phool Singh. The appellants-accused without any intention or premeditation inflicted blows of lathi and bolder on the deceased which resulted into death of the deceased. Hence, in our opinion, offence against the appellants-accused would not amount to culpable homicide amounting to murder but it would be an offence u/s 304 Part II of IPC. Looking to the nature of the case, in our opinion, it would be just and proper to award sentence of rigorous imprisonment for five years.

Consequently, both the appeals filed by the appellants [Criminal Appeal No. 573/1999 and Criminal Appeals No. 573/1999] are partly allowed. The impugned conviction and sentence of the appellants u/s 302 read with Section 34 of IPC is hereby set aside and instead they are convicted u/s 304 Part II of IPC and sentenced to suffer the sentence already undergone by them since the appellants suffered more than five years jail sentence. The bail bonds and surety bonds shall stand discharged.

Resultantly, both the appeals are disposed of with the modification in conviction and sentence as indicated here-in-above. The Registry is directed to send copy of this judgment immediately with the record to the learned trial Court for necessary information and compliance.