Mukesh vs State of M.P

M.C. Garg, J.—This appeal arises out of the judgment dated 20.8.04 delivered by IInd, Addl. Sessions Judge, Guna in Sessions Trial No. 316 of 02, whereby, the appellant has been convicted for commission of offence under sec. 304 Part II of IPC and sentenced to undergo RI for six years besides payment of fine of Rs. 11,000/-. In default of payment of fine, the appellant has been directed to further undergo RI for two years. Briefly stating the prosecution case was that one Sumer (deceased) had lodged a report at Police Station, Jamner on 17.10.02 to the effect that at about 7.00 pm, while he was on his own field, Mukesh Dhakad came along with two associates alarming filthy abuses. The appellant has also been alleged to have inflicted a Farsa blow on the head of the deceased from the blunt side. His two associates, who are unknown and have not been arrested by prosecution (infact not even identified) are alleged to have also beaten the deceased with Lathi. As a result of injuries suffered on his back and right leg besides other injuries on his head, the deceased succumbed to his injuries. It is also alleged that at that time, his brother Jai Narayan (PW 5) also came on the spot. After seeing him, the appellant and two other persons ran away. A report was lodged by the deceased himself at the Police Station. On that basis, first information report bearing no. 288 of 02 was registered against the appellant under sec. 341, 294, 323, 506B and 307/34 of IPC.

During investigation, Sec. 302 of IPC was also added as the deceased succumbed to'' his injuries. After investigation, the challan was filed before the court of Judicial Magistrate First Class and later on the same was committed to the court of Sessions for trial vide order dated 20.12.02.

After concluding the trial, learned Addl. Sessions Judge besides relying upon the statement of deceased form part of first information report; statement of Jainarayan PW5, Ramsingh PW4; Ramdayal PW 6; were also relied upon.

The testimony of all these witnesses were challenged by the appellant on the ground that they were relations of the deceased. A previous enmity regarding the matter pending against the father Imratlal in Raghogarh court, wherein, deceased Sumer was also brought on record. As such the defece (sic. defence) was that, it was a case of previous enmity and because of that reason, the appellant was falsely implicated in the alleged offence.

On the basis of evidence which came on record and the medical evidence in the form of statement made by Dr. J.B. Singh PW.1, the court came to the conclusion that though it was not a case of commission of culpable homicide which make out a case under sec. 302 IPC. The Trial court held that it was a case of sec. 304 Part II of IPC. The opinion of the Doctor stands mentioned in para 25 of the judgment which reporduced hereunder -

It is also relevant to take note of para 26 to 28 of the judgment which are reproduced hereunder.

The Trial Court considering the nature of injuries as opined by the Doctor and could be inferred from the testimony of the witnesses including the first information report, which goes to show that as far as appellant is concerned, he inflicted only one injury from blunt side of Pharsa, the Trial Court came to the conclusion that it was not a case of sec. 302 IPC, but was a case of sec. 304 Part II. The relevant observation made in para 32 of the judgment which also reproduced for the sake of reference.

Taking all these facts in consideration, but without considering the plea of the appellant to release him on probation, the Trial Court convicted and sentenced him as mentioned in para 1 of the judgment. It is this judgment which has been assailed by the appellant.

Learned appellant''s counsel submits that the appellant has already undergone the custodial sentence for number of months, in as much as, after passing of the impugned judgment, he remained in judicial custody since 20.8.04. He was released on bail vicle order dated 4.10.04. Learned counsel also submits that appellant is not a previous convict. The appellant has inflicted only one injury on the deceased which was simple in nature and was not inflicted with an intention to cause death of the deceased. Learned counsel, therefore, prayed that in this case appellant deserves to be granted the benefit of the provisions of Probation of Offenders Act.

On the other hand, learned'' Govt. Advocate submits that in this case, considering the nature of injury inflicted on the body of the deceased by the appellant and his associates, the appellant does not deserve to be released on probation.

Considering all the facts of this case and the cause of death of the deceased and role assigned to the appellant which involves infliction of only a single injury from the blunt side of Pharsa which injury is not responsible for death of the deceased who died on account rupture of lever which is attributable to other accused persons, who have not been identified and brought to the books even till date. The offence for which the appellant can be convicted only for offence under sec. 324 of the Penal Code wherein the sentence which can be imposed upon the accused can be imprisonment of either description for a term which may extend to three years, or with fine, or with both. In view of aforesaid discussions, the appeal is partly allowed. The finding of conviction is altered to sec. 324 of the Penal Code and the appellant is sentenced to the period already undergone, subject to the payment of Rs. 25,000/- as compensation which shall be disbursed to the legal representatives of the deceased. The amount shall be deposited before the Trial Court within one month hereof. In the event the amount is not deposited then the sentence is reduced to the period of three years, the appellant shall surrender before the trial court and shall suffer the custodial sentence of three years. The Trial Court shall take appropriate steps in this regard.