Madhya Pradesh High Court
Munshikha vs The State Of Madhya Pradesh on 23 December, 2024
Author: Prem Narayan Singh
Bench: Prem Narayan Singh
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IN THE HIGH COURT OF MADHYA PRADESH
AT INDORE
BEFORE
HON'BLE SHRI JUSTICE PREM NARAYAN SINGH
CRIMINAL APPEAL No. 12259 of 2023
MUNSHIKHA AND OTHERS
Versus
THE STATE OF MADHYA PRADESH
Appearance:
Shri Yogesh Kumar Gupta - advocate for the petitioner [P-1].
Shri Palash Choudhary, learned counsel for the petitioner [P-2 & 3].
Shri Surendra Gupta -Govt. Advocate for respondent/ State.
HEARD ON : 28.11.2024
PRONOUNCED ON : 23.12.2024
JUDGMENT
1. Appellants have preferred this criminal appeal under section 374 of
Cr.P.C. being aggrieved by the judgment dated 29.08.2023, passed by
learned Fifth Additional Sessions Judge, Mandsaur, in S.T. No.67/2016
whereby the appellants have been convicted for the offence punishable under
Sections 304(part-II)/34, 323/34, 452 of IPC, 1860 and sentenced to undergo
10 years, 3 months and 5 years RI with fine of Rs.25,000/-, Rs.1,000/- and
Rs.5,000/- each with default stipulations.
2. Prosecution case in a nutshell is that on 10.01.2016, the children of
deceased Madanlal were playing in the place just opposite to their house,
then appellant Munshikha’s son came there and started flying kite. When
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deceased Madanlal forbade him from flying kite and asked him to return
back to his house, then Munshikha’s son started hurling abuses and pelted
stone on deceased’s stomach thereafter, Madanlal and his children went
inside their house. After some time, appellant Munshikha and his two sons
came to deceased’s house, started hurling abuses. It is further alleged that the
accused persons assaulted deceased and his father with sticks, kicks and fists,
so also threatened to kill the complainant party. Deceased Madanlal received
injuries in his stomach and his father sustained injuries in his forehead and
left ribs. The injured persons were admitted in District Hospital, Mandsaur
and as the injuries sustained by Madanlal were grievous in nature he was
shifted to Maharaja Bhoopal Govt. Hospital, Udaipur wherein Madanlal died
during treatment. In this case, dehatinalishi (Ex.-P/6) was registered on the
report of deceased Madanlala and on the basis of that dehatinalishi, FIR was
lodged for the offences under Sections 294, 323, 452, 34 & 506.(Ex-P/7).
3. The police party, after following due procedure, arrested the accused
person and registered the case against the appellants. Since injured Madanlal
died during treatment, Section 302 of IPC has been added. After due
investigation, charge-sheet was filed against the appellants Munshikha and
other co-accused persons before JMFC Mandsaur for offence under Sections
302, 323/34, 307/34, 294, 506-II and Section 452 of IPC, 1860. As
Munshikha’s son Sonu was a juvenile, he has been produced before the
Juvenile Justice Board for further proceedings. The case against the
appellants has been committed to the Court of Sessions, Mandsaur and in
turn vide order dated 30.03.2016 the same was transferred to the Court of
Fifth Additional Sessions Judge, Mandsaur. Thereafter, charges were framed
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under Sections 302, 307, 323 read with Sections 34 and Sections 294, 506
and 452 of IPC. In turn, appellants abjured their guilt and took a plea that
they had been falsely implicated in the present crime and prayed for trial.
4. In support of the case, the prosecution has examined as many as 15
witnesses namely Lalu (PW-1), Mohanbai (PW-2), Mamta (PW-3), Mukesh
(PW-4), Dr. Premchand Arya (PW-5), Ramnarayan Yadav (PW-6), Manish
Lodha (PW-7) Zafar S/oo Lukman Khan (PW-8), Govardhan Rathore (PW-
9), Dr. S.P. Gupta (PW-10), Zafar S/o Burekhan (PW-11), Dr. Mohammed
Irfan (PW-12), Vikram Singh (PW-13) K.S. Choudhary (PW-14) and
Dalchand (PW-15). No witness has been adduced by the appellants in their
defence.
5. Learned trial Court, on appreciation of the evidence and argument
adduced by the parties, pronounced the impugned judgment on 29.08.2023,
finally concluded the case and convicted the appellants for commission of
the said offence under the provisions of Sections 323/34, 304(Part-II)/34 and
452 of IPC 1860.
6. Learned counsel for the appellant, being crestfallen by the aforesaid
findings of the Trial Court, submitted that there is no specific allegation for
causing injuries against the appellant. No deadly weapon has been used in
the offence. The incident occurred on the spur of the moment and there was
no intention to cause death of deceased Madanlal. Hence, the offence under
Section 304 of IPC cannot be made out against them and if the case of the
prosecution is taken as it is, the case of the prosecution would not travel
beyond the offence under Section 325 of IPC.
7. Alternatively, counsel for the appellants has further argued on the
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point of sentence also and prays that since the appellants are in jail more than
one year and 11 months out of the 10 years, their jail sentence be reduced to
the period already undergone. It is further submitted that the appellants
deserve some leniency as the appellants already suffered the ordeal of the
trial since 2016 i.e. for a period of 08 years. It is further submitted that this
appeal be partly allowed and the sentence awarded to the appellants be
reduced to the period already undergone by enhancing the fine amount and
giving compensation amount.
8. Learned Govt. Advocate has opposed the prayer and submitted that
the learned trial Court has rightly convicted the appellants by sentencing
them appropriately. Hence, prays for dismissal of the appeal.
9. I have considered rival contentions of the parties and perused the
record.
10. In view of the evidence available on record and the contentions
advanced by counsel for both parties, this Court has to decide the question as
to whether the findings of learned trial Court regarding conviction under
Sections 304 Part-II/34 and 452 of IPC, are correct in the eyes of law and
facts or not?
11. In this case, the prosecution has relied upon the testimony of
witness Lalu (PW-1). He has stated that on the date of incident, he, his wife
and his daughter-in-law was inside the house and Madanlal was outside the
house. Thereafter, Sonu came and Madanlal stopped Sonu from flying the
kite then Sonu pelted a stone on the stomach of Madanlal, due to which
Madanlal fell down. Munshikha, Rajun Sharhrukh and Sonu came there,
entered into the house and assaulted Madan. Appellant Munshikha has
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assaulted him with a stick. Afterthat, injured was taken to the hospital and
during treatment, the deceased died. Testimony of this witness has not been
controverted in his cross-examination and this witness has also been
supported by statements of Mohanbai (PW-2) and Mamta (PW-3). The
statements of these witnesses have not been shaken in their cross-
examination on material points.
12. That apart, Dr. S.P. Gupta, (PW-10) who has initially examined the
deceased stated that he found that the deceased was admitted in the hospital
after two days of incident and owing to injury, he was having stomachache
and other stomach issues by which death can be caused. He deposed that due
to injuries and damage to intestines and occurence of septicaemia, there is
possibility of death. Even after injuries received by injured, deceased was not
admitted in the hospital after occurrence of incident. Further, Dr.
Mohammad Irfan (PW-12), who has conducted post-mortem of the deceased
(Ex.P/24), found lacerated wound inside of right side of stomach of the
deceased (measuring 10 X 6 c.m.) and injury on downside of stomach
(measuring 1 X 1 to 3 X 2 c.m.). He has also stated that the death of the
deceased was caused due to damages in the intestines and septicaemia.
13. Learned counsel for the appellants has expostulated that all
witnesses are related and interested witnesses, thus, on the basis of their
testimonies, the appellants can not be convicted. Certainly, the witnesses are
related to each other. On this aspect in the case of “Dilip Singh vs. State of
Punjab” reported as AIR 1953 SC 364 , the Full Bench of Hon’ble Supreme
Court observed in para 26 as under:
“26. ……… Ordinarily, a close relative would be the
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last to screen the real culprit and falsely implicate an
innocent person. It is true, when feelings run high and
there is personal cause’ for enmity, that there is a
tendency to drag in an innocent person against whom a
witness has a grudge along with the guilty, but
foundation must be laid for such a criticism and the
mere fact of relationship far from being a foundation is
often a sure guarantee of truth.”
14. So far as the arguments regarding non-availability of independent
witnesses are concerned, it is well settled that no criminal case can be
overboarded due to non-availability of independent prosecution witnesses. In
this regard, the following verdict of landmark judgment of the Hon’ble Apex
Court rendered in the case of Appa Bhai vs. State of Gujarat, AIR 1988 SC
696 is worth referring here as under:
“10…….Experience reminds us that civilized people are
generally insensitive when a crime is committed even in
their presence. They withdraw both from the victim and
the vigilante. They keep themselves away from the
Court unless it is inevitable. They think that crime like
civil dispute is between two individuals or parties and
they should not involve themselves. This kind of apathy
of the general public is indeed unfortunate, but it is
there everywhere whether in village life, towns or cities.
One cannot ignore this handicap with which the
investigating agency has to discharge its duties. The
court, therefore, instead of doubting the prosecution
case for want of independent witness must consider the
broad spectrum of the prosecution version and then
search for the nugget of truth with due regard to
probability if any, suggested by the accused……”
15. In view of the aforesaid proposition of law only on the basis of the
fact that no independent witness has supported the case of prosecution, the
prosecution story which has been supported by eye witness and medical
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evidence, cannot be wiped out. Even the ground of enmity has also not been
raised by the defence. In these circumstances, it can be well assumed that the
appellants have beaten the deceased by kicks and fists on his stomach due to
that injury the deceased succumbed. Now the question is as to whether the
death of the deceased would be treated as culpable homicide not amounting
to murder under Section 304 of IPC, it is contended that the death was
occurred due to injuries on stomach.
16. Now, the question is as to whether the appellants are knowing the
fact that the deceased is suffering stomach pain or not. Actually, at this point,
nothing is adduced by the prosecution in this regard neither the prosecution
has submitted anything nor the defence has furnished anything. During the
course of argument, learned counsel for the appellants has contended that
since there was no knowledge regarding stomach pain of the deceased, the
offence punishable under Section 304 of IPC could not be made out and at
the most the case of prosecution will come under the purview of Section 325
of IPC.
17. In the light of aforesaid discussion, it is evident that if the
prosecution did not adduce any evidence regarding the appellants’ knowledge
of deceased stomach pain and ailment of stomach, the said injuries would not
sufficient to cause death in ordinary course of nature. Therefore, Section 302
or 304 of IPC will not be attracted. It is significant to reveal that in this case,
appellants only used kicks and fists which are not sufficient in ordinary
course of nature to cause death of the deceased. It is also pertinent to
mention that the deceased was died after two days from the incident of
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beating but rather not on the same day.
18. On this aspect, the law laid down by the Hon’ble Apex Court in the
case of Mohd. Ishaq Mohammad vs. State of Maharashtra [1979 Law Suit
(SC) 212] is worth referring here as under:-
“We have heard learned Counsel for the parties and
have gone through the judgment of the High Court and
of the Sessions Judge. The occurrence in the course of
which the deceased was assaulted, took place suddenly
and after hot exchange of abuses, which took place
between the deceased and the appellants. The appellants
are said to have assaulted the deceased with sticks.
There is no evidence to show as to which of the
appellants struck the fatal blow on the deceased. Having
regard therefore to the circumstances of the present case
and the nature of injuries sustained by the appellants,
we are unable to agree with the High Court that the case
falls under Section 302. There is no evidence of any
intention on the part of the appellant either to cause
death of the deceased or cause such injuries of which
the appellant could have the knowledge that it was
likely to cause death although it cannot be doubted that
the appellant had the common intention to cause
grievous hurt to the deceased by lathis. Thus the offence
falls under Section 325/34 and not under Section 302 or
304(1). It appears that the appellants have already
served their sentences or at any rate a substantial part of
it. For these reasons, therefore, we would allow this
appeal to this extent that the conviction of the
appellants are altered from that under Section 302/34 to
one under Section 325/34 and the sentences are reduced
to five years in each case.”.
19. On the same point, Hon’ble Apex Court in the case of Ratan Singh,
Ran Singh & Anr. vs. State of Punjab [1988 Law Suit (SC) 214] has
observed as under:-
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“2. Admittedly according to the prosecution’s
own case Ran Singh and Rattan Singh were
carrying lathis which could be described as
hard and blunt object. Such injuries on the
person of the deceased were either on hands
or on feet and at best what could be attributed
to them could be injuries resulting in
fractures. None of these two appellants could
be convicted for causing injuries individually
which could make out an offence under
Section 302. At best they could only be
convicted under Section 325 of IPC only.”
20. In Mahendra Singh vs. State of Dehli Administration [AIR 1986
SC 309], it is held that grievous hurt caused by blunt weapon like lathi, can
fall within section 325 of IPC and not under Section 326 of IPC. Likewise, in
another case, Halke vs. State of M.P. [AIR 1994 SC 951] , wherein it is held
that the accused caused death of deceased by inflicting blows on him with
stick. Head injury proved to be fatal and deceased died after a week. In this
case, the accused was held liable and punished under Section 325 of IPC.
The following excerpts of the aforesaid judgement is worth to refer here:-
“9………………..No doubt the injury on the head proved
to be fatal after lapse of one week but from that alone it
cannot be said that the offence committed by the two
appellants was one punishable under Section 304 Part II
IPC. The injuries found on the witnesses are also of the
same nature and for the same they are convicted under
Section 325 of IPC.”
21. Having gone through the evidence available on record, since the
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deceased had suffered a stomach injury and he expired during the course of
treatment. The medical evidence also does not bring out that the injury, was
fatal injury in ordinary course of nature to cause death. It is also worth to
mention that dehatinalishi was lodged for the offence under Sections 452,
294, 323, 506 & 34 of IPC by deceased himself, that means at the time of
dehatinalishi, intention of commttting murder was not visualized to the
police authorities. Had the intention of causing death visualized, the FIR
would have lodged under Section 307 of IPC. Hence, in the considered
opinion of this Court, the appellants can only be attributed for committing
the offence punishable under Section 325 of IPC.
22. On substratum of the aforesaid analysis in entirety, the appellants
cannot be convicted under section 304 of IPC but rather the appellants would
be convicted only under Section 325 of IPC. As such, the impugned
judgment passed by learned trial court qua the conviction of the appellants
under Section 304 of IPC, is hereby set aside and the appellants are
convicted under Section 325 of IPC. So far as the offence under Sections
323/34 and 452 of IPC is concerned, it is well proved that the appellants have
entered into the house of deceased/complainant and have caused simple
injuries to deceased Madanlal
23. Now, coming to the question of sentence, the appellants are in jail
for more than 01 year and 11 months . The appellants have already suffered
the ordeal of this case since 08 years, hence, looking the nature of injury and
its result, sentence of three years alongwith fine of Rs.50,000/- under Section
325 of IPC for each appellant would meet the ends of justice. Similarly, for
the offence under Section 452 of IPC, punishment of three years R.I.
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alongwith fine of Rs.25,000/- for each appellant would be sufficient. In so
far as the offence under Section 323/34 of IPC is concerned, in view of the
facts and circumstances of the case, conviction and sentence for the offence
under Section 323/34 of IPC, doesn’t warrant any interference.
24. In the result thereof, the appeal is partly allowed and the appellants
are convicted under Section 325 of IPC and sentenced for 3-3 years R.I. with
enhanced fine of Rs.50,000/- from Rs.25,000/- and convicted under Section
452 of IPC and sentenced for 3-3 years R.I. with enhanced fine of
Rs.25,000/- from Rs.5,000/-. The conviction and sentence under Section
323/34 of IPC is hereby affirmed. In case of failure to deposit the fine
amount, they shall further to undergo for 3-3 months S.I. Out of the total fine
amount, Rs.1,00,000/- shall be paid to the wife of deceased Smt. Mamta as
compensation under Section 357(3) of Cr.P.C. by the trial Court. It is also
clarified that their substantial sentence shall run concurrently while the fine
will be deposited by each of the appellants in each offence separately.
25. The fine amount, if already deposited as well as the compensation
amount paid, if any, shall be adjusted.
26. The appellants are in jail. They shall be released from the jail after
completion of their respective jail sentence and subject depositing the fine
amount or after completion of default sentence. It is clarified that default
sentence will not run concurrently if the fine amount is not deposited by the
appellants.
27. The order of learned trial Court regarding disposal of the seized
property, if any, stands confirmed.
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28. A copy of this order be sent to the concerned trial Court for
necessary compliance.
29. Pending application, if any, stands closed.
Certified copy, as per rules.
(PREM NARAYAN SINGH)
V. JUDGE
Vindesh
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