1" 'CFb'000062876 ohision Bsnch ('rinwal'i IN THE HIGH COURT OF JBDICATURE AT JABALPUR, HP. Crirainal Appeal No« l'a~f ,^ APPELLANT. (Jh JAU ) ,/61 I'l ^ f&p" \ \'LU'1 v^-> ^•y- ^''\^ ^i' RESPONDENT. Shudul S/o. Prem Prasad aged about 34 years, R/o. Village- Bazarpara, Lakbar^ur PS- Lakbanpur District- Sarguja» MP. -Versas- Tbe State of M.P. tbrough PS- Iiakhanpur District- Sarguja, HP. CRIMINAL APPEAL U/S. 374(2) OF, THE COQE OF CRIMINAI.^^ROCEDlreE. XI-HC-78 *11HMI shHlch 3^'^TraRW, ®Tn'M'l<o,Rldltfy .^..M.:^/£:. c^, cy^O ^ 200 3IT^?T ira^T (yi(^ql^) an^TSRrf^iN; traT3n^Tshlich ST(nwffl?CT3;n^?T 'hl^Fi-lifl-f flTOcff ^' fWl' ttesR ^sTf^q'sn^r DIVISION BENCH HON'BLE MR. L.C. BHADOO AND HON'BLE MR. SATISH AGNIHDTRI, JJ CRSMINALAPPEAtL N0.107/2000 Appellant Versus Respondent Shudul State of M.P. Shri A.K. Prasad counsel for the| Shri U.N.S. Deo Additional Bajpai PL for the respondent/St^ite ORAL JUDOMENT appellant. PUbtic Prosecutor with Shri Sudhir (2S.7.2006) The appellant by this appea| the Code of Criminal Procecjure correctness of the impugnetf by Additional Sessions Judg|e, Trial No. 198/1991 whereljsy section 302 of the IPC and 4 for tife. preferred under section 374 (2) of has challenged the legality and judgment dated 3.12.1999 passed >, Ambikapur (Sarguja) in Sessions he has been convicted under entenced to undergo imprisonment 2. Case of the prosecution in 8.10 a.m. PW-4 Pushpa brief is that on 21.4.1991 at about lo|jged the report Ex. P-2 in police P.T.O. XI-HC-78 5t0 ; 3^'^irai?PT, ®Tn+i'i<s,Rfdiy^< . C^/y^ 4-^^—° *11*1^1 SfltlT^ ^T 200 STT^rtisrgi'('^f3^ET) •z. an^T^f^iN; craTsn^TshHiti BTdTW <rf8(T an^r <tll<lf<1<TM HIHvfi iV f3^ <Rl<-c;K ^STl^R'ST^T statipn Lakhanpur to the adjoining to their house, persons were digging a pi< But her father Devsharan v( of rope land was being father of the accused Shi| she was preparing breakfaj to call her father, Harih^ shouted that accused Stt hearing the shouts she ru^ and saw that Shudul hac| spade as a result of whichl and blood started oozing.l grand-mother also came| receiving this report Stati^ against the accused/appell for the scene of occurrenc< and plain soil and the weaj of occurrence under Ex. P| notice Ex. P-5 to the of the deceased was occurrence were also takei sent for post mortem Dr. M.K. Jain conducted prepared the post mortem effect that on that day at a piace ^ccused/appellant Shudul and other in order to construct a partition wall. |ras objecting to it. When with the help me|asured, Harihar Gupta, Udainath and |dul were present there. At that time it for her father, when she was going ir who was already present there ludul had attacked her father. On |hed towards the ptace of occurrence assaulted her father on head with her father received injuries on head She started weeping there and her to the place of occurrence. On >n House Officer registered a case ll^nt under section 307 of the IPC, left ;^, took into possession btood stained i|j>on of offence i.e. axe from the place 1-3 and P-4 respectively. After giving Panchas, Panchnama Ex. P-6 of the body prejsared. Photographs of the piace of i. Thereafter, body of Devsharan was exarr)ination to Ambikapur Hospital where |the post mortem examination and i|eport Ex. P-8 in which he opined that P.T.O. XI-HC-78 'SSI "4|t|lc|i|, »Tf)<^'IS, Is|c1l+1^< *11*1^tl Sh*<Tqi_C^^^7^ <?£?*3' ^ 200 3[T^?T IRW (yit^ci^) '3- sn^T^rR-fieb ^TT 3TT^T ?)HN) ?RHW trf?CT 3TI^T =til<<lcl<fl-) WRcff ff fg^S <Rf«l< ^3TRilT3T[^T cause of death was coma skull bone. Site plan Ex. P-|' the investigation charge sfy Magistrate First Class, Arfibikapur case to the Court of Ses^i learned Additional Sessicjns case on transfer for trial. lue to the head injury and fracture of 10 was prepared. After completion of eet was flled in the Court of Judicial who in turn committed 'the .ions Judge, Ambikapur from where Judge Ambikapur received the 3. Prosecution in order to accused/appellant examiijied Statement of the accused of the Code of Criminal material appearing again^t stated that at the time of ii he was sent for medical recoilect anything about th^ establish the charge against the as many as 19 witnesses. was also recorded under section 313 Procedure in which he denied the t him in the prosecution case and icident he was mad and on that day treatment and he was not able to incident. 4. Learned Additionat Sessiorts advanced by Additional Pi accused convicted and s^i mentioned in paragraph Nc|. Judge after hearing the arguments iblic Prosecutor and counsel for the sntenced the accused/appellant as .1 of this judgment. df nbt 5. As far as the question concerned the same is appellant. Even otherwis^, Phulbasia and R/V-16 DasNa homicidal death of Devsharan is disputed by the counsel for the fe, from the evidence of PW-11 i, the eyewitnesses to the incident P.T.O. w XI-HC-78 3^'^rrairra', axfly'is, Ridiy^< _. c^..^- ^?-/^-^0 *41^dl g^n^ ••••••••••••••••<•••• ^-q- 200 Sll^l 4a<t> (yit^q^ff) .-1// sn^r^Tf^ira; traTsn^Tshtii'b ^tTTWtrfNsn^T cfti<<Fi'i41-i wHvK ^ fs^v {f^w{ ^?3Tf^T3TI^T who witnessed the spade. In the evidence post mortem examination| that there was an injury bone was also found frad resuit of fracture of skull ocular as well as medicall Devsharan was homicidal acdused (tn assaulting the deceased with t)f Dr. Jain PW-8 who conducted the on the body of Devsharan has stated head in the length of 4" and parietal ttured, cause of death was coma as a ^nd injuries to the brain, in view of the levidence it is established that death of in nature. 6. As far as involvement of| question is concerned, P^ accused assaulted the cie stated that at the time of at a distance of about 150 the land of the deceasetl accused namely Prem. weapon the accused sound, went towards Devsharan, there was oozing fromthe nose place of incident. PW[ Devsharan was her son^ Prem and deceased Devj the purpose of plinth, at there, Shudul came and the accused/appellant in the crims in FV-11 has stated that on the fatefui dav sceased with spade. She has further jncident she was cleansing the utensils ft. and Harihar Master was measuring Devsharan and of the father of the !he does not know as to with which ass^utted the deceased but she heard the |that place, water was offered to a^i injury on his head and blood was an|d accused Shudul ran away from the /1-16 Dasoda has also stated that (in-law, father of the accused namely ^haran were talking regarding iand for that time Harihar was also standing ^ttacked Devsharan with spade on his P.T.O. XI-HC-78 ^l*«?ITSt»^t<*> 3ST >*||<(|cil, »Tn<d'16, fsfcll'yy . C-^.^fd.-l0'-/-^^ (^ ^ sn^r'ra^T (i^f3g^sT) -s— 3n^T?iTR^i<ti (CT 3n^r giHR; ?^TT8!R:;ETf?(T3n^T +i<if^41-< t<iticiT^'te^<Ri«K ^; 3Tf^q-sni^r head as a result of whicjh Devsharan received injuries on the backofthe head. 7. Learned counsel for the infirmity in the evidence the incident, therefore, findings of the trial cou|1: interference by this Court) |appellant is not able to point out any ^f these frwo witnesses who witnessed we are of considered opinion that to this extent do not require any failier 8. Learned counse! for the the evidence of PW-11 come on record that wtt< where Devsharan and standing, accused came Devsharan on his head counsel for the appellantj premeditation and prepa) such the offence alleged| bevond section 304-11 ofthe accused/appellant submitted that from Phulbasia and PW-15 Dasoda it has |en Harihar was measuring the Sand of the accused namely Prem were ^here, picked up spade and assauited ^nd ran away. Thus according to the quarrel took place suddenly without fation, in the heat of passion and as against the appellant does not travel IPC. 9. Onthe other hand Mr. U.| assisted by Shri Sudhir State argued that the mai deceased on his head accused attacked DevsKaran death. .N.S. Deo Additionai Public Prosecutor ^ajpai PL appearing for the respondent kner in which the accused attacked the [with spade makes it clear that the with an intention to cause his P.T.O. XI-HC-78 HI+1WI Stl*ira» 'SSf ^qiqidll, OT(1y'l6, fsjcfiy^< , ^-.^^^•^0-=Q ^T 200 3Tl^Ttra^7 (i^f^^?1') sn^r^rR^iR; (rarsn^rgwR; B;RITW:Hf?tT3I1^T wifefrr wticft''ff te^t-rfSrRR ^iSiRfirsn^T 10.1n order to appreciate thejarguments advanced by counsel for the respective parties, we Dasoda, the mother-in-1 categorically stated that fa^ have perused the evidence of PW-16 law of the deceased who has (her of the accused namely Prem and Devsharan were standing |there and Harihar was measuring the land, at that time accuset! Shudul came there and assaulted Devsharan with spade oi|i his head. There is nothing in her evidence to show that tlfie accused came after making any preparation. From the evijdence of this witness it appears that when Prem, the father oft|he accused was digging the plinth, at that time there was sonl father of the accused rega| le dispute between Devsharan and ^ding some place of plinth and for that purpose the land was b^ing measured and at that moment accused came and assaiplted the deceased with spade. The above fact discloses that the accused assaulted the deceased with spade on head all of] a sudden without any premeditation and preparation in the h^at of passion. As such case of the accused is squarely covet|ed with exception 4 of section 300 of the IPC and for this we ar^ fortified in our view by the judgment of the Supreme Court in t^e matter of Ravi Kumar Vs. State of Pyniab_reported in AIR 2005 SC 1929. The facts of that case •> were that there was som^ dispute between deceased Hashraj and accused Ravi Kumar[ the servant of one Gandharv Singh over a very trivial matter t>n May 29,1996 and on 30.9.1996 at about 7 p.m. when the thr^e brothers were present in Hada Rori P.T.O. XI-HC-78 3^ •^i-iiiM'ii, ®Tn<i'i6,Ric)i'y^< ^IH^tTSh*f|ctl 1-JU.?/^ c=>o O ^; OT^T 4ach (yi(^ai^iT) -7 sn^TW^icb c^TT3TT^Tsb4-ltch STdTWHfN'STI^T °hl<lTfl<fl-f WRff ^' fS^\ <(S|<T<il< ^sTRjtrsn^T aaain of village Jadla, Gandhan|r dispute settled with his Lal and deceased followet Accused Ravi Kumar and present there. Gandhan/ ^ When the talks were going| Kumar and deceased picked up Dhangu, piacec) two blows on the head Mohan Lal (PW-3) raised] Lubhaya also reached the| good his escape. Deceasi Centre, Jadla by Mohan ffrst aid was given and then| sertvant Singh calted deceased to get the accused - Ravi Kumar. Mohan Gandharv Singh to his tube well. pahadur Singh (PW-4) were already iingh placed a Dhangu behind him. |on, a quarrel between accused Ravi ensued. Accused Ravi Kumar behind Gandhan/ Singh and gave bf deceased. Deceased fell down. an alarm. In the meantime. Ram [•e. Accused Ravi Kumar then made |d was taken to the Primary Health (PW-3) and Ram Lubhaya where he was referred to the Civil Hospital. Ual 11 .Similarly, in the present cas land between the fatheil Devsharan and at the timt land accused came therel deceased once on his heaiU question took place in th|i moment and as such th< exception 4 of section 300 appel!ant under section 30: (e also there was a dispute regarding of the accused and deceased ^ when Harihar was measuring the and all of a sudden assautted the with spade. Therefore, the crime in i|e heat of passion on the spur of case of the accused falls under t)f the IPC. Thus the conviction of the ofthe IPC cannot be sustairted. P.T.O. XI-HC-78 *11*1MI ^RT^i -v.^.,^ -gf S^g'^TRRTq', (STflu'KS, (s|dlU^< ^'^M:.^/£^ ^n; 200 3T1^?TI-l^ch (^qt^q^iT) cT- sn^r^irf^TR; (raTSIT^TshHlti gR(TWHf8a'3Tl^T ;•-& ^,-- Af y;^? if! *&! ''' ^ ^ 4° 12.1n the result, the appeal p^rtly succeeds. Impugned judgment of -^ the trial Court convicting the !PC and sentenced td during trial, he shall be sentence imposed on him °tii<<fci<i1-i ^iticiT ff te'^l' A<-(;!< ^aTf^trgn^r he appellant under section 302 of the IPC and sentencing to t(ndergo imprisonment for life are set aside, instead thereof, h4 is convicted under section 304-11 of undergo Rl for 10 years. The period, for which the accused r^mained in police or judicial custody entitled for the set off against the Sd/- L.C.BHADOO Judge Sd/- Satish K. Agnihotri Judge