Ramkishan S/O Gopilal vs State Of Madhya Pradesh

Being aggrieved by the judgment dated 10.11.2005 passed by the Sessions Judge, Shajapur in Sessions Trial No.85/05 convicting the appellant for the

charge under section 302 of the IPC and to sentence him for imprisonment of life with fine of Rs.1,000/-, in default of payment of fine, further RI for

3 months, appellant has preferred this appeal under section 374(2) of the Cr.P.C.

In the present case the alleged incident took place on 15.12.2004 in the intervening night at 1.30 P.M in village Kamalsara, Police Station Sarangpur,

district Rajgarh and deceased Umrao died in the incident. As alleged by the prosecution, deceased Umrao was having lease of the land along with

his brother Ramprasad at village Kamalsara and both the brothers with intent to irrigate their field installed a tube-well there. On the date of incident

in the night deceased Umrao went along with his son Ambaram and Sanjay (son of his brother Ramprasad) to sleep over there and they allslept on the

same cot. In the mid night when deceased Umrao get up to answer the call of nature at that time accused Ramkishan came there being with Farsi

(a weapon similar to Farsa) and started toask why you had installed the tube-well on the field and said you would not be allowed to cultivate the said

land and made the assault over the head of the deceased Umrao, due to which he fell down on the land. After hearing the screams Sanjay and

Ambaram made the cry on which the accused gave them threat to kill them if they would continue to cry, and flee away from the scene of

occurrence. Hearing the noise, Mansingh, who is the son of Nagjiram, brother-in-law of deceased, reached on the spot and saw blood was oozing

from the injury received on the head of the deceased and Ambaram and Sanjay narrated the incident to him. At that time deceased was

unconscious, and not in a position to speak. Mansingh immediately rushed to the village and called the bother of the deceased Ramprasad (PW/1) and

wife of the deceased Bhragubai (PW/5) and conveyed the incident. Bhragubai and Ramprasad visited the house of Patel Uttamsingh and brought his

tractor-trolley at the field but by that time Umrao had died. Ambaram and Sanjay have narrated the incident to Ramprasad, who lodged the FIR in the

Police Chowky Uthankhedi in the night at 3.30 A.M upon which Dehati Nalishi under section 302 IPC was registered and sent to Police Station

Sarangpur where the offence was registered at crime No.895/04. The Investigating Officer started investigation on the basis of the Dehati Nalishi

and made necessary seizures. The dead body was sent for autopsy to Govt. Hospital, Sarangpur, where Dr. Mohan Soni (PW-7) carried the post-

mortem. The spot map was prepared and the accused was arrested on 26.04.2005. As per his memorandum, the weapon was seized and it was

sent for FSL examination. After recording the statement of the relevant witnesses investigation was completed and Challan was filed in the

competent Court. The Judicial Magistrate committed the case to the Court of Session, where charge under section 302 of the IPC was framed against

the accused/appellant. In trial the accused abjured his guilt and taken a defence of false implication on the pretext of previous enmity inter alia

contending that on the date of the incident he was not present in the village as he had gone to his uncle Bhagirath's house at village Aliganj, district

Vidisha wherefrom he had gone to his sister's house at village Khandi to perform the work of labour along with his nephew (Bhanja) Mohan for 3-4

months. In the meantime, warrant of arrest was issued against him and he was formally arrested in this case. It is said that he was having enmity

with Sarpanch Uttamsingh and on his insistence he has been implicated in this case. In support of his defence the accused has examined defence

witness Mohan Singh (DW/1) in trial.

The prosecution examined eye-witnesses Sanjay (PW/2) and Ambaram (PW/3). The statement of Ramprasad PW/1, Bragubai (PW/5),

Dashrathsingh (PW/6), Dr.Mohan Soni (PW/7-Autopsy Surgeon), Investigating Officer Kiran Lahkarkar (PW/8) and Head Constable Ghanshyam

Das (PW/9) were also recorded. After perusal of the testimony of the autopsy surgeon Dr.Mohan Soni (PW/7). On the statements of eye-

witnesses Sanjay (PW/2) and Ambaram (PW/3) and of Ramprasad (PW/1), the trial Court found that despite having some discrepancy about the time

of incident and the manner in which the incident took place, but as per the testimony of the eye-witnesses the presence of the accused on the spot is

not doubted and on his information the seizure of the weapon was made. The injury sustained by the deceased Umrao is sufficient to cause death in

ordinary course as opined by the autopsy surgeon, therefore, held that the prosecution has brought the charge under section 302 of the IPC at home,

however, convicted and sentenced the appellant as described hereinabove.

Learned Amicus Curiae appearing on behalf of the appellant submits that as per the prosecution story when deceased get up for call of nature in

the mid night the accused reached on the spot and assaulted him on his head. The statements ofeye-witnesses in the Court remain ocular to say at the

time of the incident they were sitting on cot, although one of them said they were sleeping and got up hearing the voice. Moreso, the time of

incident, as stated by both the eye-witnesses, is different that is to say one has stated that the alleged incident occurred in between 9 to 9.30 PM in the

night whereas the other witness said the incident took place in between 1 to 1.30 A.M. in the mid night. In the light of the aforesaid discrepancy in

their testimony about the timing of the commission of offence by the accused, the defence taken by the accused of false implication and non

availability of him in the village on the date of the alleged incident, is sufficient to prove his innocence but the trial Court has failed to consider this

aspect and believed their testimony merely because the doctor has opined that the injury is homicidal in nature and sufficient to cause death in ordinary

course of nature. The defence witness is disbelieved by the learned trial Court inter alia holding that the said witness has not stated that he too had

gone along with the accused to village Khandi, therefore, trial Court has committed error in holding his testimony is not reliable. In view of the

aforesaid, learned Amicus Curiae argued that the conviction and sentence of the appellant may be set aside and in the alternative it is argued that in

any case looking to the fact that since the incident took place in the mid night, the accused inflicted only one injury to the deceased, the appellant is in

custody from the date of his arrest and he has already undergone sentence of approximately 13 years, the conviction of the appellant under under

section 302 of the IPC may beset aside converting it into an offence under section 304 Part-I of the IPC and the period of sentence undergone by the

appellant may be considered as sufficient to meet the ends of justice.

Per contra, learned Public Prosecutor for the respondent/State argued in support of the findings recorded by the learned trial Court and submits that

the Court after appreciating the evidence properly relied upon the testimony of the eye-witnesses and autopsy surgeon and recorded the findings of

conviction, therefore, interference is not warranted in this appeal. So far as the conversion of conviction and sentence is concerned, it is urged that

it is with the Court to look into the facts of the case and pass appropriate orders.

After having heard learned counsel appearing for the parties and on perusal of the facts and evidence of the case, it is said that as per prosecution

narration when the deceased get up for call of nature in the midnight the accused reached on the spot and assaulted the deceased by means of Farsi.

Nothing is available on record to indicate that there was any altercation prior to the said incident with the accused. No documents are available on

record to show that the land in question was given on Patta to the deceased along with his brother Ramprasad. It is true that in the statement of

both the eye-witnesses i.e Sanjay (PW/2) and Ambaram (PW/3), who are child witnesses, the time of the incident is different. One witness says that

the incident took place in between 9 to 9.30 P.M in the night whereas the other witness says that the incident took place in between 1 to 1.30 P.M

in the mid night but the trial Court has not found such discrepancyso material looking to the presence of the accused on the spot and took support from

the testimony of the autopsy surgeon Dr.Mohan Soni (PW/7) who found only one injury on the forehead of the deceased which was sufficient to

cause death in ordinary course of nature. It is also seen from the testimony of both the eye witnesses that there is some contradiction on the point

that when the incident took place, they were woke up or they were sitting on the cot and looking to the incident but because the presence has not been

doubted, therefore, the aforesaid two contradictions are not of much relevance. As per the statement of eye witnesses and Dr. Mohan Singh (PW-7)

only one injury has been found on the forehead due to which the deceased died. In the present case, the motive has not been proved, however, looking

to the circumstances in which the deceased received the injury and taking guidance from the judgments of Apex Court in the cases of Sangharaj

Bhogappa Kamble Vs. State of Maharashtra reported in (2010) 13 SCC 651, Guljar Hussain Vs. State of U.P. reported in 1993 Supp (1) SCC 554,

Indrasan Vs. State of Uttar Pradesh reported in (2009) 14 SCC 532 and Thangaiya Vs. State of T.N. reported in (2005) 9 SCC 650, in my considered

opinion, conviction of the appellant, in the facts of the case under Section 302 of the IPC is not warranted, therefore, it is set aside. Instead, the

appellant is convicted for the charge under Section 304 part 1 of the IPC. Accordingly, this appeal is hereby allowed in part.

In view of the foregoing discussion, this appeal is allowed in part. The conviction and sentence of the appellant under section 302 of the IPC is set

aside and instead he is convicted under section 304 Part-I of the IPC. As discussed above, the appellant is in custody from the date of his arrest i.e.

on 26.04.2005 and he has already undergone sentence of more than 13 years, therefore, in the considered opinion of this Court, in the facts and

circumstances of the case, the period of jail sentence already undergone by the appellant is sufficient to meet the ends of justice. Consequently, the

appellant be set at liberty forthwith, if not required in any other offence. Let a copy of this judgment be sent to the learned trial Court as well as jail

authorities.

At the end, it is our duty to record the words of appreciation in favour of Amicus Curiae, who assisted this Court in the disposal of this case which

was pending since last 12 years and the accused is in jail, however, his assistance is acknowledged.