Madhya Pradesh High Court
Santosh Prasad vs State Of Madhya Pradesh on 30 July, 2025
Author: Avanindra Kumar Singh
Bench: Vivek Agarwal, Avanindra Kumar Singh
NEUTRAL CITATION NO. 2025:MPHC-JBP:35210
1 CRA-2571-2019
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE VIVEK AGARWAL
&
HON'BLE SHRI JUSTICE AVANINDRA KUMAR SINGH
ON THE 30th OF JULY, 2025
CRIMINAL APPEAL No. 2571 of 2019
SANTOSH PRASAD AND OTHERS
Versus
STATE OF MADHYA PRADESH
Appearance:
Shri Amreshwar Pathak - Advocate for appellants No. 1, 2, 4, 5 & 6.
Shri Ram Prakash Yadav - Advocate for appellant No.3.
Shri Manas Mani Verma - Government Advocate for respondent/State.
JUDGMENT
Per: Justice Avanindra Kumar Singh
This appeal is filed being aggrieved of the judgment of conviction and
sentence dated 28/02/2019 passed by learned Second Additional Sessions
Judge, Sidhi in Session Trial No.400139/2015 whereby appellants have
been convicted for the offence punishable under Sections 148 of IPC and
sentenced to undergo RI for 1 year, 323 r/w 149 of IPC (four count) and
sentenced to undergo R.I. for one year (four count) and Section 302/149 of
IPC and sentenced to undergo life imprisonment with fine of Rs.500/- and in
default stipulation S.I. for 6 months.
2. During the pendency of appeal, appellant Surya Prasad @ Saryu Sharan
has expired as per order sheet of this Court dated 18/01/2023 therefore,
appeal qua Surya Prasad stands abated.
Signature Not Verified
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CHOUKSEY
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3 . The facts of the case are that Police at Police Station Kotwali, District
Sidhi registered a case Crime No.169/2015 under Sections 147, 148, 294,
323, 324 and 506 of IPC (FIR-Ex.P/1) against the 6 appellants and co-
accused Damodar Prasad, who expired during trial and Sonu Dwivedi who
has been acquitted, on the basis of report lodged at hospital Chowki Sidhi.
As per prosecution case complainant Lala Prasad Dwivedi and others made
an oral report in Hospital Chowki Sidhi that on 06/04/2015 at about 7:30
AM, injured Krishna Keshav Dwivedi (PW.1), his mother Shashikala (PW.3)
and Shriram Dwivedi (PW.2) had gone to village Bhaluha Khurd Pathar to
collect Mahua and while they were collecting Mahua, at that time appellants
and co-accused Damodar Prasad and Sonu Dwivedi came there carrying lathi
and tangi and started to abuse them and thereafter assaulted Krishna Keshav
by lathi. When Shashikala Dwivedi and Shriram Dwivedi came to rescue him
then appellants also assaulted them. When father and brother of the
complainant came there then all the appellants also assaulted them with lathi
and tangi, as a result of which they sustained injuries.
4. Further case of the prosecution is that Police registered FIR (Ex.P/1), all
the injured were sent for MLC and investigation was done. The report of
MLC is Ex.P/6 to Ex.P/19, prepared mauka naksha Ex.P/2, Spot Inspection
Panchnama (Ex.P/3) and Najri Naksha (Ex,P/4), blood stained soil seizure
memo is (Ex.P/5), prepared memorandum of appellants Ex.P/20, Ex.P/24 to
Ex.P/27 & Ex.P/41 and seized weapons from the appellants vide memo
Ex.P/28 to Ex.P/30, Ex.P/31, Ex.P/39, Ex.P/40 & Ex.P/42, recorded the
statements of witnesses and injured Lalaram vide Ex.P/45. During treatment
injured Lalaram Dwivedi died on 13/04/2015. Police registered Marg
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intimation by Ward boy (Ex.P/36), sent articles to FSL Sagar for
examination vide Ex.P/44. After investigation, police filed charge-sheet
against the appellants and other persons before the competent Court from
where the trial was committed to Sessions Court, which was made over to
Second Additional Sessions Judge, Sidhi, District Sidhi (M.P.) for trial.
5. The trial Court framed the charges against the appellants and co-accused
under Sections 148, 294, 323 r/w 149 and Section 302 r/w 149 of the I.P.C.to
which they denied and submitted that they have been falsely implicated.
There is counter FIR regarding assault by other party.
6. Prosecution has examined 19 witnesses and exhibited 45 documents to
prove its case. The appellants have also examined Sarju Prasad Dwivedi
(DW-1), Mithlesh Prasad Dwivedi (DW-2), Shivkant Dwivedi (DW-3) and
Sonu Dwivedi (DW-4) and produced documents Ex.D/1 to Ex.D/30 to prove
his case.
7. After evaluating the evidence that came on record, learned Additional
Sessions Judge, Sidhi vide judgment dated 28/02/2019 convicted the
appellants for the offence under Sections 148, 323 r/w 149 and 302 r/w 149
of the IPC and sentenced as mentioned in para-1.
8. It is pertinent to note that during the course of arguments, learned
counsel for the appellants filed a copy of judgment dated 28/02/2019 passed
in S.T.No.156 of 2016 (State of M.P. vs. Shriram Dwivedi and others) and
submitted that during the same incident, the appellants/accused persons have
also got injured and complainant party was put to trial in counter FIR Crime
No.168/2015. This fact has also been mentioned in para-2 of the impugned
judgment in S.T.No.400139/2015.
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CHOUKSEY
Signing time: 31-07-2025
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9. Learned counsel for the appellants submitted that the impugned
judgment passed by the trial Court is not based on proper appreciation of
facts, evidence and law and the evidence of witnesses suffers from serious
contradictions and omissions. It is further submitted that complainant party
was infact aggressor for aforesaid alleged incident and the appellants have
used the force, if any, in their defence. The trial Court erred in holding that
the death of deceased Lalaram is homicidal in nature. It is not proved that the
injuries sustained by the deceased were sufficient in ordinary course to cause
death. It is further submitted that there was dispute between appellants and
complainant party with regard to immovable property. The prosecution
witnesses Rudramani Giri (PW-6), Jamuna Vishwakarma (PW-7) and
Mrigendra Prasad Dwivedi (PW-13), Rajkumar Sharma (PW-14) and
Rajkumar Shukla (PW-16) have turned hostile. The trial Court has
committed a mistake by not appreciating that the prosecution has completely
failed to establish the case beyond reasonable doubt against the appellants.
The trial Court has completely failed to appreciate the evidence on record in
proper perspective and has drawn illegal findings of conviction, hence
impugned judgment is wholly perverse and deserves to be set aside.
1 0 . On the other hand, learned counsel for the State supported the
impugned judgment and prayed for dismissal of the appeal.
11. Considered the argument of learned counsel for the parties and perused
the record.
12. On the basis of arguments and record, it is not disputed that regarding
same alleged incident, a counter FIR under Sections 294, 323 (four counts)
and 506 Part-II of IPC vide Crime No.168/2015 has been registered. In the
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CHOUKSEY
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cross case i.e. S.T.No.156 of 2016 vide judgment dated 28/02/2019,
complainant Krishna Keshav, Shriram Dwivedi and Ramkrishna @ Munesh
Dwivedi have been convicted under Sections 323 of IPC and sentenced to
fine of Rs.500/- each and in default S.I. for one month. Krishna Dwivedi is
PW.1 & Shriram Dwivedi is PW.2 in the case under present appeal.
13. In this case also, learned trial Court in Paras -52 of the impugned
judgment acquitted the Sonu Dwivedi from the charges under Sections 148,
294, 323/49 and 302/149 of IPC and similarly in Para -53, Saryu Prasad @
Sarju Sharan Dwivedi, Santosh Prasad Dwivedi and Vivek @ Ramu, Rajesh
Kumar @ Raju, Gulu @ Madan Mohan, Mohit @ Vinay Kumar Dwivedi
have been acquitted from the charges under Section 294 of IPC.
14. Krishna Keshav Dwivedi (PW-1) in his statement in para-42 has stated
that it is correct to say that there was partition of the land between Sarju
Prasad and Madhav Prasad and they have separate kitchen also.
15. Dr. Rajeev Dwivedi (PW-5) has found five injuries on the body of
deceased-Lala s/o Madhav Dwivedi. In para-7 of his cross-examination, it is
stated that on the body of Shashikala, Lala Prasad Dwivedi, Ram Krishna
Dwivedi, Krishna Keshav Dwivedi and Shriram, there was no injury by
sharp edged weapon and regarding Lala Dwivedi he has opined that (i) there
is a lacerated wound measuring 5 cm X 0.5 cm X skin deep found in left side
of head (ii) lacerated wound measuring 4 cm X 0.5 cm X skin deep in right
side of head (iii) injuries no. 1 & 2 are caused by hard and blunt object.
16. Dr. Pradeep Kumar Markam (PW-11), who has conducted the
postmortem of deceased Lala Prasad s/o Madhav Prasad Dwivedi, has stated
that the cause of death of deceased was coma occurred due to head injuries
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caused by hard and blunt object.
17. In the case of Darshan Singh vs. State of Punjab and another (2010) 2
SCC 333, Hon’ble Supreme Court has held thus :-
“36. According to Section 99 of the Penal Code the injury which
is inflicted by the person exercising the right should
commensurate with the injury with which he is threatened. At the
same time, it is difficult to expect from a person exercising this
right in good faith, to weigh “with golden scales” what maximum
amount of force is necessary to keep within the right: every
reasonable allowance should be made for the bona fide defender.
The courts in one voice have said that it would be wholly
unrealistic to expect of a person under assault to modulate his
defence step by step according to attack.
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57. In Buta Singh v. State of Punjab [(1991) 2 SCC 612, the
Court noted that:
“10. … a person who is apprehending death or bodily injury
cannot weigh in golden scales on the spur of the moment and in
the heat [of circumstances], the number of injuries required to
disarm the assailants who were armed with weapons. In moments
of excitement and disturbed mental equilibrium it is often difficult
to expect the parties to preserve composure and use [exactly] only
so much force in retaliation…commensurate with the danger
apprehended to [him] where assault is imminent by use of force, it
would be lawful to repel the force in self-defence and the right of
private defence commences as soon as the threat becomes so
imminent. Such situations have to be pragmatically viewed and
not with high-powered spectacles or microscopes to detect slight
or even marginal overstepping. Due weightage has to be given to,
and hypertechnical approach has to be avoided in considering
what happens on the spur of the moment on the spot and keeping
in view normal human reaction and conduct, where self-
preservation is the paramount consideration. But, if the fact
situation shows that in the guise of self-preservation, what really
has been done is to assault the original aggressor, even after theSignature Not Verified
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CHOUKSEY
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cause of reasonable apprehension has disappeared, the plea of the
right of private defence can legitimately be negatived. The court
dealing with the plea has to weigh the material to conclude
whether the plea is acceptable. It is essentially[, as noted above,] a
finding of fact.”
18. On consideration it is seen that Exception 2 & 4 of Section 300 of
IPC states that :-
Exception 2 :- Culpable homicide is not murder if the offender in
the exercise in good faith of the right of private defence or person
or property, exceeds the power given to him by law and causes the
death of the person against whom he is exercising such right of
defence without premeditation, and without any intention of doing
more harm than is necessary for the purpose of such defence.
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
Explanations- It is immaterial in such cases which party offers the
provocation or commits the first assault.
19. Thus, looking to the facts and circumstances of this case including cross
case and nature of injuries on the body of deceased and weapons of assault
which are hard and blunt objects, property dispute and sudden fight, where
element of cruelty is lacking, only knowledge of death can be attributed to
appellants but there was no intention for causing death, therefore, appeal can
be partly allowed.
20. Therefore, for the reasons mentioned above, we are of the opinion
that conviction of the appellants under Sections 148, 323 r/w 149 of the IPC
(four count) is maintained and the conviction under Section 302 r/w 149 of
IPC is converted to Section 304 Part -II of IPC and they are directed to
undergo rigorous imprisonment for seven years with fine of Rs.500/- each
Signature Not Verified
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CHOUKSEY
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and in default to undergo S.I. for 15 days.
21. Learned Government Advocate has supplied custody report received
from Central Jail, Rewa on 24/07/2025 letter No- 2484/Warrant/2025/Jail
Rewa, which is taken on record where from it is revealed that accused
Santosh Prasad has remained in actual custody for 7 years 3 months 12 days
including period of remission for 9 years 11 months and 9 days, Vivek
Kumar @ Ramu has remained in actual custody for 7 years including period
of remission for 9 years 11 months and 26 days, Rajesh Kumar @ Raju has
remained in actual custody for 7 years including period of remission for 9
years 8 month and 05 days, Gullu @ Madan Mohan has remained in actual
custody for 5 years 2 months 10 days including period of remission for 5
years 09 months 23 days and Mohit @ Rajiv @ Vinay Kumar Dwivedi has
remained in actual custody for 6 years 5 months and 17 days including
period of remission for 9 years.
22. Accordingly, the appeal filed by the appellant is partly allowed to the
extent above.
23. The three appellants except Gullu @ Madan who is on bail be released
forthwith because as per jail report they have served sentence with period of
remission, if not required in any other case. Let Gullu @ Madan surrender to
undergo for remaining sentence. Let Mohit alias Rajiv @ Vinay Kumar
Dwivedi serve remaining sentence. The case property be disposed of in terms
of the judgment of the trial Court. Record of the trial Court be sent back.
(VIVEK AGARWAL) (AVANINDRA KUMAR SINGH) Signature Not Verified Signed by: MANJU CHOUKSEY Signing time: 31-07-2025 12:07:01 NEUTRAL CITATION NO. 2025:MPHC-JBP:35210 9 CRA-2571-2019 JUDGE JUDGE mc Signature Not Verified Signed by: MANJU CHOUKSEY Signing time: 31-07-2025 12:07:01