Pradeep And Another vs State Of Madhya Pradesh

J.P. Gupta, J.

The appellants have preferred the present appeal being aggrieved by the impugned judgment dated 7.2.2009 passed by learned Additional Sessions

Judge to the Court of 1st Additional Sessions Judge, Hoshangabad in S. T. No. 202/2008 whereby appellant no.1 Pradeep has been convicted for

commission of offence under Section 302 of the IPC and appellant no. 2 Sandeep has been convicted for commission of offence under Section 302

/34 of the IPC and both the appellants have been sentenced to imprisonment for life along with fine of Rs.200/- in default of payment of fine further 6

months rigorous imprisonment.

The facts giving rise to this appeal in brief are that on 19.5.2008 at about 2:30 O’clock in the noon in village Luhariyakala the appellants and

their younger brother Randeep and one Dhanraj were sitting in their house. Saroj Bai (PW-1), mother of the appellants, and her husband deceased

Kailash also came to the house of the appellants where the appellants hurled filthy languages against Saroj Bai (PW-1) and also pushed her as she

was having illicit relation with deceased Kailash. When the deceased tried to save her, appellants and their younger brother Randeep and one Dhanraj

assaulted the deceased. During the incident, appellant Pradeep and co-accused Dhanraj assaulted with axe on the head of the deceased and other

accused persons assaulted the deceased with lathi. On account of the injuries, the deceased fell down and became unconscious. Santi Bai (PW-1)

called family members of the deceased and thereafter, the deceased was shifted to Itarsi Hospital where Saroj Bai (PW-1) lodged a report with

regard to the incident which was registered as Crime No. 0/08 in Police Station Itarsi under Section 307/34 of the IPC and on the basis of it, FIR

Ex.P/23 was registered at Crime No. 16/08 in Police Station Rampur, District Hoshangabad and Kailash died in the hospital on the same day. After

completion of the investigation, charge sheet was filed under Section 302 of the IPC. Appellants Pradeep and Sandeep were tried together and

Randeep was tried before the Juvenile Justice Board being juvenile and another co-accused Dhanraj was tried separately. By judgment dated

22.7.2013 passed by learned Second Additional Sessions Judge, Hoshangabad he has been acquitted of the charge under Section 302 of the IPC and

the appellants by the impugned judgment has been convicted and sentenced as mentioned earlier.

The finding of the learned trial court has been assailed on the ground that testimony of the eye witness Sarojbai (PW-1) and Karan (PW-2) and

Naval (PW-3) are not reliable and so far as the recovery of weapon is concerned, on the axe presence of human blood has not been established. So

far as blood stains on the cloths wore by the appellants are concerned, there is no evidence about the fact that the appellants do not have blood group

of B which was found on the cloths. Therefore, conviction cannot be based on the aforesaid circumstance and the appellants are entitled to acquittal

of the offence. It is further submitted that the facts of the incident show that all of a sudden a quarrel took place and on the heat of passion without

premeditation, incident happened and there is no evidence that which injury was caused by which accused and another co-accused Dhanraj has

already been acquitted and against his acquittal no appeal has been filed and it was alleged that he also assaulted the deceased with axe. In the

circumstances with all certainty it cannot be said that deadly injury was caused by appellant Pradeep. In such circumstances, the appellants can be

convicted only for commission of offence punishable under Section 304 /34 of the IPC. Accordingly, conviction and sentence be modified.

Learned GA appearing for the respondent / State has argued in support of the impugned judgment and stated that the finding of conviction and

sentence of the learned trial court is based on legal evidence and is in accordance with law. No interference is required in the impugned judgment.

Hence, the appeal be dismissed.

Dr. V. K. Jha (PW-10) or Dr. Jayanti Yadav (PW-7) have stated that on the person of deceased Kailash they found five injuries on his head in

which three injuries were of incised wound caused by sharp and hard object and two injuries were caused by hard and blunt object and autopsy was

conducted by Dr. Jayanti Yadav (PW-7) who found depressed fracture on right and left temporal area and cause of death was cardio respiratory

failure on account of head injury. He has also proved postmortem report as Ex.P/16. The aforesaid testimony of medical expert establishes that the

nature of death of deceased Kailash was homicidal and on the date of incident, he sustained five injuries in which two injuries were caused by hard

and blunt object and rest of the injuries were caused by hard and sharp object, in which, two injuries were on right and left temporal area caused by

hard and sharp object were fatal.

Now the question is that as to who caused the aforesaid injuries to the deceased. Learned trial court has relied on the statement of Sarojbai (PW-

1), Karan (PW-2) and Naval (PW-3) as the eye witnesses, in which, so far as Karan (PW-2) is concerned, in view of us, he was not an eye witness

of the incident. As per prosecution story, he reached on the spot later on and during the investigation, his statement has not been recorded as an eye

witness. In the FIR Ex.P/1 lodged by Sarojbai (PW-1) has also not been mentioned his name as an eye witness. Karan (PW-2) has also admitted that

the police did not record his statement during investigation. He is an elder brother of the deceased. In the circumstances, his testimony as an eye

witness cannot be believed.

However, Sarojbai (PW-1) and Naval (PW-3) are reliable witnesses. Sarojbai (PW-1) has stated that at the time of incident, her three sons,

appellants Pradeep and Sandeep and one Dhanraj and deceased Kailash were sitting in the house and she went for taking water and came back soon

to the house and found that appellants, Dhanraj and deceased Kailash were scuffling each other, in which, deceased Kailash sustained injury on his

head caused by axe and after beating Kailash, appellants and Dhanraj fled away then she went to call brothers of deceased Kailash and they came

within 10 minutes. Thereafter, they took Kailash to Itarsi Hospital where she lodged report Ex.P/1. In her cross examination, she admitted that she did

not see activity of beating. When she came back she found deceased Kailash in an injured condition. Naval (PW-3) has stated that having heard noise

of quarrel, he went to the house of the appellants and saw appellant Pradeep armed with axe and Dhanraj was running away. He also saw injury on

the head of deceased Kailash. He also states that axe was fixed on the head of deceased which was pulled out by appellant Pradeep and thereafter,

Kailash was shifted to Itarsi Hospital from where Kailash was taken to Hamidiya Hospital, Bhopal where he breathed his last. Naval (PW-3) has also

admitted in his cross examination that when he reached the spot and he saw appellant Sandeep and his younger brother going out of the house and

appellant Pradeep was in the house and the deceased was lying on the ground and thereafter, Sarojbai (PW-1) came to the spot.

We have meticulously gone through the statements of Sarojbai (PW-1) and Naval (PW-3) and in view of us, none had seen the appellants

assaulting deceased Kailash but it is established that the deceased was beaten in the house of the appellants and at that time, appellants and their

younger brother Randeep and one Dhanraj were present there and Sarojbai (PW-1) found them quarreling with deceased Kailash and also found

injury on the head of the deceased caused by axe and also running away the appellants from the spot. Sarojbai (PW-1) is the mother of the appellants.

There is no possibility to implicate the appellants falsely in this case. Her statement to the aforesaid extent cannot be discarded merely on the ground

that she had illicit relation with the deceased Kailash. Later on, her statement is also corroborated by the testimony of Naval (PW-3) and substance of

the incident is also found in the FIR lodged by Sarojbai (PW-1). The corroboration is also found from the testimony of the medical experts.

Apart from it, the circumstance of presence of human blood stains on the cloths of the appellant and the presence of blood on the axe and lathi

recovered on the instance of the appellants as proved by the Investigating officer Bharat Singh (PW-11) as well as the FSL report Ex.P/25 and in this

regard no explanation has been given on behalf of the appellants then this circumstance also strengthens the testimonies of Sarojbai (PW-1) and Naval

(PW-3).

In view of the aforesaid discussions, we come to the conclusion that the appellants along with other co-accused were author of the injuries caused

to the deceased. But, now the question is that whether the appellant Pradeep can be held guilty under Section 302 of the IPC and appellant Sandeep

can be held guilty under Section 302/34 of the IPC. In view of us, from the statement of Saroj Bai (PW-1) it is established that the incident had taken

place suddenly in the heat of passion and without any premeditation as the deceased and the appellants and their younger brother Randeep and one

Dhanraj were quarreling and scuffling each other and there is no evidence that which accused had caused which injury to the deceased and co-

accused Dhanraj has been acquitted by the trial court in separate trial and no appeal has been filed against his acquittal. As per the prosecution case,

he was also having axe. In the circumstances it cannot be said with all certainty that all the accused persons had common intention to cause death of

the deceased or to cause such bodily injury which was sufficient to cause death in ordinary course of nature. In the circumstances, the appellants can

be convicted for commission of culpable homicide not amounting to murder under Section 304 Part-I of the IPC.

Learned counsel for the appellant has also placed reliance on a judgment of the Apex Court in the case of Pulicherla Nagaraju Vs. State of A.P

(2006) 11 SCC 444, in which the Apex Court has examined the issue as to what relevant factors should be kept in consideration while deciding the

question as to whether the case in hand falls under section 302 or section 304 Part I or Part II of IPC. The relevant para is 29, which is as under :-

Therefore, the court should proceed to decide the pivotal question of intention, with care and caution, as that will decide whether the case falls

under section 302 or 304 Part I or 304Part II. Many petty or insignificant matters plucking of a fruit, straying of cattle, quarrel of children, utterance of

a rude word or even an objectionable glance, may lead to altercations and group clashes culminating in deaths. Usual motives like revenge, greed,

jealousy or suspicion may be totally absent in such cases. There may be no intention. There may be no pre-meditation. In fact, there may not even be

criminality. At the other end of the spectrum, there may be cases of murder where the accused attempts to avoid the penalty for murder by attempting

to put forth a case that there was no intention to cause death. It is for the courts to ensure that the cases of murder punishable under section 302, are

not converted into offences punishable under section 304 Part I/II, or cases of culpable homicide not amounting to murder, are treated as murder

punishable under section 302. The intention to cause death can be gathered generally from a combination of a few or several of the following, among

other, circumstances : (i) nature of the weapon used; (ii) whether the weapon was carried by the accused or was picked up from the spot; (iii)

whether the blow is aimed at a vital part of the body; (iv) the amount of force employed in causing injury; (v) whether the act was in the course of

sudden quarrel or sudden fight or free for all fight; (vi) whether the incident occurs by chance or whether there was any pre-meditation; (vii) whether

there was any prior enmity or whether the deceased was a stranger;

(viii) whether there was any grave and sudden provocation, and if so, the cause for such provocation; (ix) whether it was in the heat of passion; (x)

whether the person inflicting the injury has taken undue advantage or has acted in a cruel and unusual manner; (xi) whether the accused dealt a single

blow or several blows. The above list of circumstances is, of course, not exhaustive and there may be several other special circumstances with

reference to individual cases which may throw light on the question of intention. Be that as it may.â€​

In view of the aforesaid discussions and the law discussed above, the appeal is partly allowed. The appellants’ conviction under Sections 302

and 302/34 of the IPC and sentence thereof are hereby set-aside. They are convicted for commission of offence punishable under Section 304 Part-I

of the IPC. So far as the sentence part is concerned, the appellants have been in custody since 22.5.2008 till today and the ends of justice would be

achieved by sentencing the appellants to the period already undergone by them in jail. Hence, they are sentenced to the period already undergone by

them in jail which is more than 10 years. They are directed to be released forthwith if not required to be detained in any other case.

A copy of this order be sent immediately to the trial Court and the jail Authorities concerned for information and necessary compliance.