Ram Babu & ANR. vs State of M.P.

Appellants -accused have preferred this appeal against the judgment and order dated 26-08-2006 passed by the Second Additional Sessions

Judge (Fast Track), Sheopur in S.T.No.74/2005, whereby appellant No.1 -Ram Babu has been convicted for the offence punishable under

Section 302 of IPC and sentenced to rigorous life imprisonment with a fine of Rs.2,500/- and in the default thereof to serve additional RI for a

period of one year and appellant No.2 -Siya has been convicted for the offence under Section 323 of IPC and sentenced to RI for one year with a

fine of Rs.1,000/- and in default thereof to serve RI for a period of three months.

Precisely stated facts of the prosecution case, for adjudication are that on 03-07-2005 at 10 am Shiv Singh (since deceased) and his brother

Roop Singh (PW-1) were going with their buffaloes in the vicinity of agriculture field of acquitted accused Narayan, while he and appellant Siya

with Lathis, acquitted accused Gopal with Gadasi and appellant -Ram Bau with an axe restrained the path of deceased Shiv Singh and Roop Singh

(PW-1). While hurling abusive language, they asked them not to take buffaloes from their agriculture field. On protest, appellant Ram Babu gave a

blow of axe over deceased Shiv Singh which rendered him injured and blood started oozing out. Appellant Siya with stick gave blows over the

right thigh and left hand of deceased Shiv Singh. When Roop Singh tried to intervene, then acquitted accused Gopal with Gadasi caused injuries

over the left shoulder and left side of forehead of Roop Singh (PW-1). Acquitted accused Narayan gave a blow of stick to Roop Singh (PW-1)

over his right occipital region. On shouting, Roop Singh, Saraswati Bai (PW-3) and other witnesses tried to save Shiv Singh. Deceased Shiv Singh

accompanying with brother Roop Singh (PW-1), lodged the F.I.R. of incident being Ex-P/14. Sub Inspector M.R. Mahore (PW-7) reduced the

F.I.R. into writing and registered the FIR at crime No.110/2005 under Sections 307, 341, 294, 323 & 34 of IPC and he sent deceased Shiv

Singh and Roop Singh (PW-1) with Head Constable Natthilal for medico legal examinations. Samples of blood stained soil and simple soil were

collected vide memo Ex-P/16 in the presence of Saraswati Bai and they were sent for forensic examinations. On the same day, statement of

Saraswati Bai under Section 161 of Cr.P.C. vide Ex-P/9 was taken. City Superintendent of Police, D.S. Parihar (PW-9) arrested the accused

persons vide arrest memos Ex-P/1 to P/4 and thereafter on their information, an axe from appellant -Ram Babu, a Farsa from acquitted accused

Gopal and sticks from acquitted accused Narayan and appellant -Siya were seized vide seizure memos Ex-P/19, Ex-P/21, Ex-P/23 and Ex-P/25

and seizure memos Ex-P/20, Ex-P/22, Ex-P/24 and Ex-P/26 were sent for forensic examinations.

On 25-09-2005, statement of Man Singh under Section 161 of Cr.P.C. was recorded. Dr. R.C. Sharma (PW-4) conducted medico legal

examination and submitted M.L.C. report Ex-P/10 and 11. Shiv Singh succumbed to his injuries Dr. J.N. Soni (PW-8) conducted autopsy on 14-

07-2005 on his dead body and prepared postmortem report Ex-P/18. Veterinary Doctor Bhaskar Prasad Sharma (PW-5) conducted medical

examinations of injured buffaloes and submitted medical report Ex-P/5.

After investigation, the Investigating Officer filed a charge-sheet in the Court of Judicial Magistrate First Class, Vijaypur. The learned JMFC

committed the case to the Court of Session for trial.

Charges were framed against all the accused persons in respect of the offences punishable under Sections 341, 294, 302 of IPC in alternate

Sections 302/34, 307 in alternate 307/34 of IPC and against the accused Gopal offence under Section 25(1-b) of Arms Act and Section 429 of

IPC were also framed. They abjured their guilt and opted for trial. Their defence is false implication, but they did not adduce any evidence in

support of their defence. The leaned trial judge after considering the entire evidence, on record held the death of Shiv Singh homicidal in nature and

further held appellant - Ram Babu guilty for the offence under Section 302 of IPC and appellant Siya under Section 323 of IPC. Other two

accused persons namely, Narayan and Gopal were acquitted from the charges levelled against them. At the time of hearing final arguments, learned

Public Prosecutor informed us that the State had not filed appeal against the orders of acquittal of accused persons, namely, Narayan and Gopal.

Thus, the orders of their acquittals have attained finality. The present appeal is preferred at the instance of Ram Babu and Siya.

Learned counsel for the appellants submitted that the eye-witnesses, do not support the prosecution story. Roop Singh (PW-1), Bhoop Singh

(PW-2) and Saraswati Bai (PW-3) entered into the witness box but they turned hostile. Roop Singh (PW-1) was the brother of deceased Shiv

Singh and he was also an injured witness. But he also refuted the prosecution story. Other material witness was Dr. R.C. Sharma (PW-4) who

examined Roop Singh (PW-1). Similarly M.R. Mahore (PW-7) who registered the FIR supported the prosecution story but his testimony cannot

be believed because deceased Shiv Singh was an illiterate person and used to append his thumb impressions and when the very genesis of the

prosecution case is doubtful then the learned trial judge erred in passing the impugned judgment whereby he convicted the appellants for the

alleged offence as referred to above. He also prayed for conversion of the case from Section 302 of IPC into Section 304 Part II of IPC because

as per FIR, appellant -Ram Babu inflicted only single blow to the deceased without premeditated plan and on the spur of moment in anger.

In reply, learned counsel for the respondent/State opposed the prayer made by the appellants and contended that on the basis of evidence on

record the learned trial judge has rightly convicted appellant -Ram Babu for the offence under Section 302 of IPC and appellant -Siya for the

offence under Section 323 of IPC. He prayed for dismissal of appeal.

We have heard learned counsel for the parties at length and perused the record and the impugned judgment.

Now the first and foremost question for consideration is about nature of death. Roop Singh (PW-1) stated in his statement that his brother Shiv

Singh (since deceased) died due to injuries caused to him. Dr. J.N. Soni (PW-8) examined dead body of Shiv Singh on 14-07-2005 and found

surgically stitched wound present on the right side.

According to Dr. J.N. Soni (PW-8), cause of death was an injury over the head of deceased and therefore, there was break down of general

health and nervous system. Injury was caused from a sharp edged weapon and was sufficient to cause death in the ordinary course of nature.

According to this witness, death was homicidal in nature. In the crossexamination, no facts have come contrary to the finding given by him.

Therefore, it is established that the death of deceased Shiv Singh was homicidal in nature.

Now the question for our consideration is about the complicity of appellant -Ram Babu in causing death to deceased Shiv Singh and injury to

Roop Singh (PW-1) as well as their buffaloes. The prosecution examined Roop Singh (PW-1), Bhoop Singh (PW-2) and Saraswati Bai (PW-3)

as eye-witnesses. Roop Singh (PW-1), who is the brother of deceased Shiv Singh, has identified all the accused persons who were present before

the trial Court at the time of recording his statement but he did not attribute the said act to any of them, rather he narrated a different story.

According to him, some 20-22 people arrived and inflicted injuries to deceased Shiv Singh and him. He specifically stated in his examination -

in -chief that no crops and land disputes would ever exist between the accused persons and them. He further denied the fact that accused persons

assaulted deceased Shiv Singh and him. He even denied the fact of going to Police Station Vijaypur with his brother for lodging the F.I.R. He was

declared hostile and cross examined by the prosecution. He denied the prosecution story to the hilt. He admitted in the cross-examination that his

brother Shiv Singh was illiterate and could not sign and he used to put his thumb impressions only.

Same is the case with Bhoop Singh (PW-2) who also identified the accused persons present before the trial Court but pleads ignorance about

the incident and categorically denied his case diary statement. On crossexamination, he did not support prosecution story at all, and he admitted

that Shiv Singh was illiterate person. Sister in law (Badi Bhabhi) of deceased Shiv Singh and Roop Singh (PW- 1) was Saraswati Bai (PW-3),

who according prosecution story was present on the spot when incident took place and was an eye-witness, also went in the way as Roop Singh

(PW-1) her brother in law went. She was also declared hostile by the prosecution. He denied the prosecution story altogether. She denied the

roles of accused persons for infliction of injuries to deceased Shiv Singh and Roop Singh (PW-1). On cross-examination by the prosecution, she

stood by her examination -in -chief and did not support the story of prosecution.

Sub Inspector M.R. Mahore (PW-7), had recorded the F.I.R. In the absence of support from the eye-witnesses, the evidence of M.R.

Mahore (PW-7) in respect of registration of FIR is believable, even then the involvement of appellant Ram Babu is not established because witness

Roop Singh (PW-1), who according to M.R. Mahore (PW-7) came to Police Station for lodgement of FIR himself, has not supported the

prosecution story, therefore, this fact is partly proved.

Another aspect needs consideration in the case is that deceased Shiv Singh has recorded F.I.R. Ex-P/14 in which he mentioned the names of

all the accused persons including present appellants. He died on 14-07-2005 during treatment. After his death, the F.I.R. lodged by him is treated

as dying declaration and is admissible in evidence as per the mandate of Hon''ble Apex Court in the case of Munnu Raja Vs. State of M.P., AIR

1976 SC 2199, State of M.P. Vs. Khilan Singh, 1994 (1) MPWN SN 128, Nathwa Vs. State, 1972 MPLJ 28, Babulal Vs. State of M.P., AIR

2004 SC 846, Matadin Vs. State, 1984 CCRJMP 117, Teelu Vs. State, 1988 Cr.L.J. 1062.

So far as the contention of the learned counsel for the appellants that at the time of recording of FIR, deceased Shiv Singh in the state of

unconsciousness is concerned, M.R. Mahore (PW-7) has categorically narrated that deceased Shiv Singh lodged the FIR by making oral

statement. This witness accepted the fact that Shiv Singh and Roop Singh came to him in injured conditions, and he categorically denied a

suggestion of the defence that deceased Shiv Singh was injured and unconscious. This witness has categorically stated the recording of FIR by him

at the instance of deceased Shiv Singh.

Similarly, Dr. R.C. Sharma (PW-4) had done medico legal examination of deceased Shiv Singh immediately after the incident, and he also

nowhere mentioned about unconsciousness of deceased Shiv Singh. Dr. J.N. Soni (PW- 8) who performed autopsy over the body of deceased

Shiv Singh has opined that he was in conscious state after two hours of incident. Therefore, it can be safely stated that on the narration of deceased

Shiv Singh, FIR was reduced into writing by M.R. Mahore (PW-7). From a perusal of impugned judgment, it appears that the learned trial judge

has considered the aspect of common intention but did not impress by the arguments advanced by the prosecution in this regard and acquitted

other two accused persons as well as present appellants from the sweep of Section 34 of IPC because the common intention of appellants as well

as other accused persons was not proved.

It appears that appellant -Ram Babu inflicted a blow of axe over deceased Shiv Singh and caused injury to him although it was triggered off

because of a verbal altercation of deceased Shiv Singh with buffaloes going through agriculture field of appellants, therefore, from the testimony of

deceased Shiv Singh duly corroborated by the medical expert, this fact established that appellant Ram Babu inflicted the blow of axe.

Through the course of events, the learned trial judge came to the conclusion that the altercation was precipitated on the spur of moment.

Sudden precipitation of events was due to movement from the agriculture field of appellants. The accused persons did not harbour common

intention to cause death of deceased Shiv Singh by assaulting him. Even FIR Ex-P/14 also indicates that the accused persons neither exhorted nor

caught hold of deceased Shiv Singh when appellant -Ram Babu inflicted a single blow over the head of deceased Shiv Singh with an axe. At this

juncture, this Court has to see whether in the fact situation of the case and course of events warrant consideration of the case of appellant -Ram

Babu to fall under Section 302 of IPC or under Section 304 Part II of IPC. Section 304 defines culpable homicide not amounting to murder reads

as under:

Punishment for culpable homicide not amounting to murder.-Whoever commits culpable homicide not amounting to murder shall be punished

with imprisonment for life, or imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine, if the act

by which the death is caused is done with the intention of causing death, or of causing such bodily injury as is likely to cause death, or with

imprisonment of either description for a term which may extend to ten years, or with fine, or with both, if the act is done with the knowledge that it

is likely to cause death, but without any intention to cause death, or to cause such bodily injury as is likely to cause death.

Part II of said provision contemplates imprisonment of either description for a term which may extend to 10 years or fine or with both, if act is

done with the knowledge that it is likely to cause death but without any intention to cause death or to cause such bodily injury as is likely to cause

death. Section 299 of IPC defines culpable homicide whereas Section 300 of IPC defines murder. For Section 300 of IPC certain exceptions

have been carved out when culpable homicide is not murder and exception -4 can be profitably referred here to reach to the conclusion whether

the present case is an act of culpable homicide not amounting to murder or not. Exception -4 of Section 300 of IPC reads as under:

Exception 4.-Culpable homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden

quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner.

In the present case, in the absence of ocular evidence only reliable evidence is in the form of FIR Ex-P/14 can be taken into consideration as

dying declaration of deceased Shiv Singh. A perusal of the F.I.R. indicates that appellant -Ram Babu inflicted a single blow of axe over head of

deceased Shiv Singh and appellant -Siya inflicted a Lathi blow over his right thigh and another Lathi blow was over his left shoulder.

As far as deceased Shiv Singh is concerned, the blow is single and was not premeditated attempt because the learned trial judge has already

rejected the theory of common intention and rightly so because right from Mahbub Sah Vs. Emperor, AIR (32) 1945 Privy Council 118, the Privy

Council has enunciated the concept and meaning of ""Common Intention"" till today meandering through Mohan Singh and another Vs. State of

Punjab, AIR 1963 SC 174, Sheoram Singh and another Vs. State of U.P., AIR 1972 SC 2555 and in the case of Girjashankar Vs. State of U.P.,

AIR 2004 SC 1808 it is held that common intention within the meaning of Section 34 of IPC implies a prearranged plan. Prior meeting of mind or

pre-concerted efforts are required for application of Section 34 of IPC. Common intention may develop at spot but it must precede the offence.

Since no appeal has been preferred by the State/ Prosecution against acquittal of co-accused persons as well as against the acquittal of appellants

along with other accused persons from the sweep of Section 34 of IPC, finding recorded by the learned trial judge attained finality.

Therefore, it is to be seen whether appellant -Ram Babu had any intention to kill the deceased or the case of appellant Ram Babu falls under

exception-4 of Section 300 of IPC and therefore, can be convicted for culpable homicide not amounting to murder under Section 304 Part -II of

IPC. When FIR Ex-P/14 itself discloses single blow by appellant Ram Babu which was not repeated by him and other accused persons did not

catch hold of deceased Shiv Singh to provide opportunity for other blows either by appellant Ram Babu through axe or by Siya through stick then

logical inference is that they were not intending to kill the deceased Shiv Singh. This intention further gains substance through the course of events

wherein the altercation erupted because of passing of buffaloes through their agriculture field. In rural area, boundaries of agriculture fields are such

sacrosanct in nature that agriculturists relate the four corners of their fields with their own personal identity and treats any intrusion as undermining

their personalities and whole existence. Therefore, altercation erupted on agriculture field, if led to an axe blow, cannot be termed as an act of

murder. Therefore, the benefit of exception 4 of Section 300 of IPC is to be given to appellant -Ram Babu and therefore, instead of conviction

under Section 302 of IPC appellant -Ram Babu deserves conversion of conviction under Section 304 Part II of IPC. Considering the

circumstances, in the light of judgment passed by the Apex Court in case of ""Ranjitham Vs. Basavaraj and others"" [(2012) 2 SCC 414], appellant

-Ram Babu ought to be convicted under Section 304 Part II of IPC.

Now, we will consider the awarding of sentence to appellant Ram Babu under Section 304 (Part II). As per record, it appears that appellant

Ram Babu has been undergoing mental agonies in the case since the year 2005, that he has no criminal antecedents, that at the time of incident he

was a young man of twenty eight years old that not only he but also his father Narayan and Gopal had suffered trauma in the case who were

acquitted of all the charges framed against them by the learned trial judge and that there is no evidence on record that he has misused the liberty of

bail in the case after past conviction. In these circumstances, we award him rigorous imprisonment for eight years under Section 304 Part II.

Insofar as appellant Siya is concerned, he is awarded rigorous imprisonment for a period of one year with a fine of one thousand rupees. As

per the proceedings of trial Court dated 26-08-2006, he had deposited the entire fine sentence. As per the certificate issued by the learned trial

judge he had remained in the prison for a period between 26-09-2005 and 26-08-2006. As such he suffered jail sentence one year six months

and eighteen days exceeding the total period of actual jail sentence.

In the result, we set aside the conviction and sentence awarded to appellant Ram Babu by the learned trial judge under Section 302 of I.P.C.

and instead we convict him under Section 304 Part II only with rigorous imprisonment for a period of eight years, including the period he had been

in the jail. The conviction and sentence awarded to appellant -Siya by the learned trial judge under Section 323 is affirmed. His bail bonds shall

stand cancelled. Appellant Ram Babu is directed to surrender before the Court of Chief Judicial Magistrate, Sheopur within a period of two

months from the date of this judgment to undergo remaining part of jail sentence, failing which the C.J.M., Sheopur shall secure his presence in the

case through arrest warrant and proceed against his surety for recovery of surety bonds in accordance with law.

Accordingly, this appeal is finally disposed of in terms of preceding para.