Chandan Singh And Another vs State Of Mp

This Criminal Appeal under Section 374 of CrPC has been filed against the judgment and sentence dated 27/07/2010 passed by First Additional

Sessions Judge, Bhind in Sessions Trial No.15/2010, by which the appellants have been convicted for offence under Section 323/34 and 304 Part II /34

of IPC and have been sentenced to undergo the rigorous imprisonment of six months and rigorous imprisonment of five years respectively. No fine

amount has been imposed. Both the sentences have been directed to run concurrently.

(2) The necessary facts for the disposal of the present appeal in shortare that on 04/02/2008, at about 03:30 pm, complainant Prem Singh (PW3) and

Bhagunte (PW4) were going to their village Nibasai from village Raun on a Sonalika tractor. On the way, the driver of the tractor Mangal Singh

overtook the bullock-cart, as a result of which the persons who were sitting on the bullock-cart, climbed over the trolley and after catching hold the

driver Mangal Singh, started assaulting him, as a result of which the tractor turned turtle up side down near the culvert and Bhagunte who was sitting

on the Sonalika Tractor, as well as the driver Mangal Singh sustained injuries. The driver Mangal Singh succumbed to his injuries and he was declared

dead. On the report made by complainant Prem Singh (PW3), the police registered a FIR in Crime No.17/2008 for offence under Section 304 of IPC.

After concluding the investigation, the police filed the charge-sheet against the appellants for offence under Section 304/34 of IPC.

(3) The trial Court by order dated 26/03/2010 framed the chargeunder Sections 323/34, 304 Part II/34 of IPC.

(4) The appellants abjured their guilt and pleaded not guilty.

(5) The prosecution, in order to prove its case, examined Dinesh(PW1), Raghvedra Singh (PW2), Prem Singh (PW3), Bhagunte (PW4), Virendra

Kumar (PW5), Dr.B.S. Kushwah (PW6), Dr. Jitendra Shrivastava (PW7), Baijnath Singh (PW8) and Gajendra Singh (PW9). The appellants did not

examine any witness in their defence.

(6) The trial Court after recording the evidence and hearing both theparties, convicted the appellants for offence under Sections 304 Part II/34 and

323/34 of IPC and sentenced them to the rigorous imprisonment of five years and rigorous imprisonment of six months respectively.

(7) Challenging the judgment and the findings given by the trial Court, it is submitted by the counsel for the appellants that complainant Prem Singh

(PW3) and Bhagunte (PW4) who were sitting on the tractor, did not support the prosecution case and they have turned hostile. It is further submitted

that in fact, because of rash and negligent driving by the driver /deceased Mangal Singh, the tractor turned up side down, as a result of which the

deceased Mangal Singh sustained fatal injuries and expired. A simple case of accident has been given a colour of culpable homicide not amounting to

murder.

(8) Per contra, the counsel for the State submitted that although Prem Singh (PW3) and Bhagunte (PW4) might have turned hostile but Dinesh

(PW1), Raghvedra Singh (PW2) and Gajendra Singh (PW9) are the eye-witnesses who have specifically stated that after the deceased Mangal Singh

overtook the bullock-cart, the persons sitting on the bullock-cart caught hold the driver of the tractor and threw him on the ground, as a result of which

the deceased was overrun by the tractor and thereafter, the tractor after dashing against the culvert turned up side down. It is submitted that in the

light of the evidence of Dinesh (PW1), Raghvendra Singh (PW2) and Gajendra Singh (PW9), the trial Court did not commit any mistake in convicting

the appellants.

(9) Heard the counsel for the parties.

(10) Prem Singh (PW3) and Bhagunte (PW4) have not supported theprosecution case merely on the question of identity. However, these witnesses

have stated that they were sitting on the tractor belonging to one Narendra Chuahan of Mangarh and when they reached near a culvert situated near

Raun School, 3-4 persons climbed over the tractor, threw the driver on the ground, as a result of which the tractor turned up side down. The name of

the driver was Mangal Singh. Prem Singh (PW3) has stated that he did not go anywhere and the police itself came on the spot. Prem Singh (PW3)

has stated that although he did not inform the police about the incident but the FIR Ex.P1 bears his signature and spot map is Ex.P2 and inquest

intimation report is Ex.P3. Although this witness was declared hostile as he had not supported the prosecution case on the question of identity, but in

his cross-examination, he has admitted about the incident but again, he did not support the prosecution case with regard to the identity of the

appellants. Similar is the evidence of Bhagunte (PW4), who has also supported the prosecution case with regard to manner in which the incident took

place but he did not support the prosecution case on the question of identity.

(11) Dinesh (PW1) and Raghvendra Singh (PW2) have stated that on 4th February, 2008, they were going to their village from Raun Market and on

the way, they met with Mangal Singh who was driving the tractor. The deceased also enquired as to whether these witnesses are going to the house

or not. These witnesses said that the deceased Mangal Singh may go and they are going by bicycle. It is further stated by these witnesses that near

the school, the tractor collided with the bullock-cart, as a result of which the bullock-cart was damaged and on the instigation, appellants No.1, 2 and

Raju climbed over the tractor and threw the driver Mangal Singh on the ground as a result of which Mangal Singh was overrun by the tractor and

thereafter, the tractor turned up side down. These witnesses stayed back on the spot. After receiving the information, the police came on the spot and

the dead body of the deceased Mangal Singh was taken away. In cross-examination, these witnesses have stated that they did not know that whether

the driver Mangal Singh had licence to drive the tractor or not. However, they stated that the deceased was overrun by the tractor. These witnesses

could not narrate the colour of clothes of the driver. It is further stated that the driver was wearing a muffler. It is further stated that after the incident,

large number of persons had gathered on the spot.

(12) Gajendra Singh (PW9) has also narrated the incident in the samemanner. He too was cross-examined in detail by the appellants, but nothing could

be elicited from his evidence, which may make his evidence unreliable. Even the counsel for the appellants could not point out any infirmity in the

evidence of Dinesh (PW1), Raghvendra Singh (PW2) and Gajendra Singh (PW9). It was submitted by the counsel for the appellants that in fact it

was a case of accidental overturning of a tractor due to rash and negligent driving by the driver Mangal Singh, but the counsel for the appellants could

not point out any circumstance from the record which may support the submissions made by the appellants. Although Prem Singh (PW3) and

Bhagunte (PW4) have partially turned hostile and they have not supported the prosecution case on the question of identity but one thing is clear that

they have supported the prosecution case with regard to the manner in which the incident took place. Thus, this Court is of the considered opinion that

the prosecution has succeeded in establishing beyond reasonable doubt that because of collision of the tractor driven by the driver Mangal Singh and

the bullockcart, the bullock-cart sustained some damages, as a result of which the appellants got annoyed and climbed over the tractor and pulled the

driver Mangal Singh from the tractor, as a result of which he fell down on the ground and he was overrun by the tractor.

(13) Dr. Jitendra Shrivastava (PW7 had conducted the postmortem of the deceased Mangal Singh and in the postmortem report Ex.P7-A, he found

the following injuries:-

''(1) Abrasion with contusion size 6 cm x 3 cm vertical over back on mid line, over 2nd to 3rd lumber vertebra.

(2) Abrasion size 3 cm x 2 cm over right lumber region ofback

(3) Abrasion size 3 cm x 3 cm over medial surface lowerpart of right knee.

According to doctor, all the injuries were caused by hard and blunt object. No specific opinion has been given by the doctor with regard to the

accidental death but it was mentioned that the findings given in the postmortem report may be correlated with the evidence.

Dr. B.S. Kushwah (PW6) had examined Bhagunte (PW4) and found the following injuries on the body of injured Bhagunte:-

''(1) Bleeding through left ear. No external injuries seen. Referred to ENT Department.

(2) Contusion left lateral region of back of chest (back) withabrasion, simple in nature size 4â€​ x 2''.

(3) Abrasion right side back of hip size 1''x 0.5cm, simple innature.

According to the doctor, all these injuries were caused by hard and blunt object. The MLC report is Ex.P-4-A. Dr. B.S.Kushwah was crossexamined

and only two questions were put and he admitted that the injury nos. 2 and 3 could have been caused due to fall on the ground. The question put to

Dr.BS Kushwah is of no relevance because it is the case of the prosecution itself that Bhagunte had sustained injuries because of fall due to

overturning of the tractor.

(14) In this case, Dinesh (PW1), Raghvendra Singh (PW2), Prem Singh(PW3), Bhagunte (PW4) and Gajendra Singh (PW9) have specifically stated

that after collision between the tractor and bullock-cart, the occupants of the bullock-cart i.e. the appellants climbed over the tractor, pulled the driver

of the tractor Mangal Singh on the ground, as a result of which the driver of the tractor was overrun by the tractor and the tractor thereafter turned up

side down and because of injuries sustained by the driver Mangal Singh, he expired. The incident is alleged to have taken place on 04/02/2008. Spot

map was prepared on 04/02/2008 itself at about 17:40. In Ex.P1, the FIR which was lodged by Prem Singh (PW3) on 04/02/2008 at about 16:10, it

was mentioned that there was a collision between the tractor and bullock-cart and thereafter, the occupants of the bullock-cart climbed over the

trolley and the person caught hold the driver of the tractor, as a result of which the tractor collided with culvert situated near the middle school and

therefore, Mangal Singh sustained the injuries. He was brought to the hospital Raun, where he was declared dead. The persons who climbed over the

tractor, in the meanwhile, ran away. Thus, it is clear that the deceased Mangal Singh sustained injuries because he was caught hold by the appellants

while he was driving the tractor, on a trivial issue that the driver Mangal Singh had caused damage to the bullock-cart. Thus, this Court is of the

considered opinion that as the tractor in question was driven by the driver Mangal Singh and as the tractor collided with bullock-cart causing damage

to the bullock-cart, therefore, the occupants of the bullock-cart, out of annoyance, climbed over the trolley, caught hold the driver and he was pulled,

as a result of which the deceased Mangal Singh fell down on the ground and he was overrun by the tractor and thereafter, the tractor turned up side

down, causing injuries to Bhagunte (PW4) also. Although no specific opinion with regard to cause of death has been given by Dr. Jiendra Shrivastava

(PW7) in the postmortem report but the FIR Ex.P1 was lodged with promptness and the spot map Ex.P2 was also prepared on the same day and in

the postmortem report, certain injuries were found on the body of the deceased Mangal Singh. Thus, it is clear that the deceased Mangal Singh

sustained injuries because he was overrun by the tractor as he was pulled by the appellants.

(15) The trial Court, after considering the allegations made against the appellants, has convicted the appellants for offence under Section 304 Part

II/34 of IPC. The manner in which the incident had taken place, it is clear that neither it was the intention of the appellants nor it was within their

knowledge that because of their act, the driver of the tractor would lose his life and accordingly, the conviction of the appellants for offence under

Section 304 Part II/34 of IPC as recorded by the trial Court is affirmed.

(16) At this stage, it is submitted by the counsel for the appellants thatthe appellant No.1 Chandan Singh has remained in jail for two days, i.e. from

3/1/2009 to 05/01/2009, whereas the appellant No.2 Shailu alias Shailendra has remained in jail for a period of 31 days, i.e. from 24/08/2009 to

25/09/2009. It is further submitted that under the facts and circumstances of the case, the jail sentence already undergone by the appellants, is

sufficient to meet the ends of justice.

(17) The submission made by the counsel for the appellants is considered. It is not the case of the prosecution that the deceased was pulled while the

tractor was stationary. It appears that after minor collision between the tractor and the the bullock-cart, the driver of the tractor continued to drive the

tractor and when he did not stop, therefore, the appellants, by climbing over the tractor tried to pull the driver from the moving tractor. It is a matter of

common knowledge that if the driver is pulled from the moving tractor, then some untoward incident may take place. It is fortunate that Bhagunte

(PW4) who was sitting over the tractor did not receive any fatal injury because of overturning of the tractor. As the appellants had pulled the driver of

the moving tractor, therefore, the period already undergone by the appellants cannnot be said to be sufficient to meet the ends of justice. However,

after considering the allegations made against the appellants, this Court is of the considered opinion that the jail sentence of rigorous imprisonment of

five years imposed by the trial Court appears to be on higher side. As no minimum sentence is provided for offence under Section 304 Part II of IPC,

therefore, the jail sentence of rigorous imprisonment of five years for offence under Section 304 Part II/34 of IPC is hereby modified and in place of

rigorous imprisonment of five years, rigorous imprisonment of two years  and fine of Rs.15,000/- to each of the appellants is awarded for offence

under Section 304 Part II/34 of IPC.

(18) So far as the sentence awarded to the appellant for offence underSection 323/34 of IPC is concerned, it does not require any interference.

(19) Accordingly, the sentence awarded by the trial Court is modifiedand the sentence of rigorous imprisonment of six months for offence under

Section 323/34 of IPC as awarded by the trial Court is maintained and the rigorous imprisonment of five years for offence under Section 304 Part

II/34 of IPC, is hereby modified and is reduced to the rigorous imprisonment of two years and a fine of Rs.15,000/- to each of the appellants. Both the

sentences are directed to run concurrently. In default of payment of fine amount, the appellants shall undergo further the rigorous imprisonment of

three months.

(20) Accordingly, judgment and sentence dated 27/07/2010 passed by First Additional Sessions Judge, Bhind in Sessions Trial No. 15/2010, is hereby

affirmed with the aforesaid modification.

(21) The appellants are on bail. Their bail bonds and surety bonds stand cancelled. The appellants are directed to immediately surrender before the

trial Court for undergoing the remaining jail sentence.

(22) The appeal is partly allowed.