Mahesh Vs. State of M.P. - Court Judgment

Excerpt:
criminal - conviction - sections 302 and 304 part i of indian penal code, 1860 - trial court allowed exception 4 to section 300 and convicted under section 304 part i - high court reversed finding of trial court and convicted under section 302 - in view of fact that there was no pre-mediation to inflict assault and injury was on account of sudden fight - exception 4 clearly applicable to case - findings of high court unsustainable - findings recorded by trial court restored. - sections 118 & 191 & army rules, 1954, rule 34: [b.n. agrawal, aftab alam & r.m. lodha, jj] general court-martial interval period between service of charges and trial held, there has to be clear ninety-six hours interval between the accused being charged for which he is to be tried and his arraignment and interval time in rule 34 must be read absolute. there is a purpose behind this provision; that purpose is that before the accused is called upon for trial, he must be given adequate time to give a cool thought to the charge or charges for which he is to be tried, decide about his defence and ask the authorities, if necessary, to take reasonable steps in procuring the attendance of his witnesses. he may even decide not to defend the charge (s) but before he decides his line of action, he must be given clear ninety-six hours. a trial before general court martial entails grave consequences. the accused may be sentenced to suffer imprisonment. he may be dismissed from service. the consequences that may follow from non-observance of the time interval provided in rule 34 being interval period provided in rule 34 is held to be directory and its strict observance is not insisted upon, in a given case, an accused may be called upon for trial before general court martial no sooner charge/charges for which he is to be tried are served. the time frame provided in rule 34 has definite purpose and object and must be strictly observed. its non-observance vitiates the entire proceedings. when the interval between the respondent having been informed of the charges for which he was to be tried and his arraignment was less than ninety-six hours, merely because the respondent pleaded guilty that would not save the court martial proceedings from being declared illegal. - c, the trial court vide judgment dated 3.8.1984 came to the conclusion that the evidence given by pw-2 purshottam mehra and pw-6 badda, the two eye- witnesses of the occurrence, was cogent, trustworthy and reliable. 3. in our opinion the appreciation of evidence by the trial court as well as the high court, is sound, correct and proper. in this fact situation, we are of the opinion that exception-4 to section 300 ipc is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under section 304 (part-i) ipc.order1. the appellant was tried for an offence under section 302 ipc for the murder of krishna kumar on 24.7.1983. according to the prosecution case, the deceased along with pw-2 purshottam and pw- 6 badda, were working as agriculture labourers on the field of purshottam sharma pw-1. on 24.7.1983 at about 1.00 p.m. while the deceased and other labourers were ploughing the field belonging to pw-1, the appellant came there for grazing his cattle. as the cattle entered the field of purshottam sharma, pw-1, where the crop of soyabean was standing, the deceased and pw-2 told him to take his cattle away and not let his cattle damage the crop. the appellant, however, did not pay any heed to their request and insisted that he would graze the cattle in that field only. an altercation ensued between the deceased and the accused. thereafter, the appellant dealt a pharsa blow on the head of krishna kumar. on receipt of the blow, krishna kumar fell down on the ground and died instantaneously, pw-2 and pw-6 rushed to inform shri sharma, pw-1, who arrived at the spot. the first information report was lodged by pw-1 purshottam sharma at police station narsinghpur at about 3.00 p.m. on the same day. the investigating officer, shri prakash chand sonkar, pw-9, after registration of the fir, came to the place of occurrence and after preparing the inquest report, sent the dead body of krishna kumar for post mortem examination to the district hospital, narsinghpur, where the autopsy was performed by dr. m.r. khan, pw-10. the doctor found an incised wound on the right parietal region with fracture of the same and damage to the brain. in the opinion of the doctor, the death of krishna kumar was caused as a result of that injury and the injury was found to be sufficient in the ordinary course of nature to cause death. the appellant was arrested on 26.7.1983 and while in custody, he made a disclosure statement under section 27 of the evidence act, leading to recovery of a pharsa from the roof of the upper storey of his house. the pharsa was found to be blood stained and according to the chemical examiner and the serologist, the blood found thereon was of human origin. the appellant was sent up for trial. after recording the evidence on behalf of the prosecution and examining the appellant under section 313 cr.p.c, the trial court vide judgment dated 3.8.1984 came to the conclusion that the evidence given by pw-2 purshottam mehra and pw-6 badda, the two eye- witnesses of the occurrence, was cogent, trustworthy and reliable. the trial court also found that the medical evidence provided by dr. khan, pw-10 lent corroboration to their ocular testimony. the trial court on appreciation of the evidence found that the appellant had caused the injury with the pharsa on the head of the deceased when he prevented the appellant from grazing his cattle in the field of purshottam, pw-1. the trial court, however, after rejecting the plea of self defence found that the case of the appellant was covered by exception-4 to section 300 1pc and after giving reasons in support of that conclusion, held the appellant guilty of an offence under section 304 (part-i) ipc and acquitted him of the offence under section 302 ipc. the appellant was sentenced to two years ri and to pay a fine of rs. 500 and in default of payment of fine, to undergo further ri for four months for the offence under section 304 (part-i) ipc. the state preferred an appeal against the acquittal of the appellant for the offence under section 302 ipc. the high court vide judgment dated 7.9.1992 found that the offence committed by the appellant was punishable under section 302 ipc and that the recording of his conviction for an offence under section 304 (part-i) ipc, was wrong and not justified. consequently, the state appeal was allowed and the appellant was convicted for an offence under section 302 ipc and sentenced to undergo imprisonment for life. on special leave being granted, the appellant is before us.2. we have heard learned counsel for the parties and perused the record.3. in our opinion the appreciation of evidence by the trial court as well as the high court, is sound, correct and proper. the evidence given by pw-2 and pw-6 regarding the occurrence and the manner of assault is cogent, consistent and has impressed us as trustworthy. their evidence has remained unshaken in the cross-examination and nothing has been pointed out which may in any manner discredit their testimony. the evidence of these eye-witnesses coupled with the recovery of pharsa and the medical evidence given by dr. khan, pw-10, un-mistakably connects the appellant with the crime, i.e., the assault on the deceased which resulted in his death. the question, however remains about the nature of the offence.4. from a perusal of the evidence, we find that when the appellant arrived along with the cattle at the filed there was no premeditation for the assault. at the spot, there was an altercation between the parties and in the sudden fight, after the deceased objected to the grazing of the cattle, when possibly hot words or even abuses were exchanged between the parties, the appellant gave a single blow with the pharsa on the head of the deceased. the statement of the appellant and the suggestions given on his behalf to the prosecution witnesses that there was an attempt to assault the deceased with a parena, which was with the deceased, does not appear to be improbable. thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heals. he did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. admittedly, he did not assault pw-2 or pw-6 who were also present also with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of pw-1. this fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. in this fact situation, we are of the opinion that exception-4 to section 300 ipc is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under section 304 (part-i) ipc. the trial court, under the circumstances, was justified in convicting him for the said offence and the high court, in our opinion, fell in error in interfering with it and that too without dispelling any of the reasons given by the trial court. the judgment of the high court convicting the appellant for an offence under section 302 ipc cannot be sustained and we accordingly set it aside and instead convict the appellant for the offence under section 304 (part-i) ipc.5. we, however, find that the sentence of two years ri, and fine of rs. 500 for the offence under section 304 (part-i) ipc, as recorded by the trial court, was grossly inadequate and un-reasonable. considering the facts and circumstances of the case, in our opinion proper sentence in the case would be for the appellant to suffer ri for a period of six years, besides payment of rs. 1,000 as fine for the offence under section 304 (part-i) ipc. in default of payment of fine, the appellant shall farther undergo ri for four months.6. the appeal, therefore, succeeds to the extent indicated above and is disposed of.

Judgment:
ORDER

1. The appellant was tried for an offence under Section 302 IPC for the murder of Krishna Kumar on 24.7.1983. According to the prosecution case, the deceased along with PW-2 Purshottam and PW- 6 Badda, were working as agriculture labourers on the field of Purshottam Sharma PW-1. On 24.7.1983 at about 1.00 p.m. while the deceased and other labourers were ploughing the field belonging to PW-1, the appellant came there for grazing his cattle. As the cattle entered the field of Purshottam Sharma, PW-1, where the crop of Soyabean was standing, the deceased and PW-2 told him to take his cattle away and not let his cattle damage the crop. The appellant, however, did not pay any heed to their request and insisted that he would graze the cattle in that field only. An altercation ensued between the deceased and the accused. Thereafter, the appellant dealt a pharsa blow on the head of Krishna Kumar. On receipt of the blow, Krishna Kumar fell down on the ground and died instantaneously, PW-2 and PW-6 rushed to inform Shri Sharma, PW-1, who arrived at the spot. The First Information Report was lodged by PW-1 Purshottam Sharma at police station Narsinghpur at about 3.00 p.m. on the same day. The Investigating Officer, Shri Prakash Chand Sonkar, PW-9, after registration of the FIR, came to the place of occurrence and after preparing the inquest report, sent the dead body of Krishna Kumar for post mortem examination to the District Hospital, Narsinghpur, where the autopsy was performed by Dr. M.R. Khan, PW-10. The Doctor found an incised wound on the right parietal region with fracture of the same and damage to the brain. In the opinion of the Doctor, the death of Krishna Kumar was caused as a result of that injury and the injury was found to be sufficient in the ordinary course of nature to cause death. The appellant was arrested on 26.7.1983 and while in custody, he made a disclosure statement under Section 27 of the Evidence Act, leading to recovery of a pharsa from the roof of the upper storey of his house. The pharsa was found to be blood stained and according to the chemical examiner and the serologist, the blood found thereon was of human origin. The appellant was sent up for trial. After recording the evidence on behalf of the prosecution and examining the appellant under Section 313 Cr.P.C, the trial court vide judgment dated 3.8.1984 came to the conclusion that the evidence given by PW-2 Purshottam Mehra and PW-6 Badda, the two eye- witnesses of the occurrence, was cogent, trustworthy and reliable. The trial court also found that the medical evidence provided by Dr. Khan, PW-10 lent corroboration to their ocular testimony. The trial court on appreciation of the evidence found that the appellant had caused the injury with the pharsa on the head of the deceased when he prevented the appellant from grazing his cattle in the field of Purshottam, PW-1. The trial court, however, after rejecting the plea of self defence found that the case of the appellant was covered by Exception-4 to Section 300 1PC and after giving reasons in support of that conclusion, held the appellant guilty of an offence under Section 304 (Part-I) IPC and acquitted him of the offence under Section 302 IPC. The appellant was sentenced to two years RI and to pay a fine of Rs. 500 and in default of payment of fine, to undergo further RI for four months for the offence under Section 304 (Part-I) IPC. The State preferred an appeal against the acquittal of the appellant for the offence under Section 302 IPC. The High Court vide judgment dated 7.9.1992 found that the offence committed by the appellant was punishable under Section 302 IPC and that the recording of his conviction for an offence under Section 304 (Part-I) IPC, was wrong and not justified. Consequently, the State appeal was allowed and the appellant was convicted for an offence under Section 302 IPC and sentenced to undergo imprisonment for life. On special leave being granted, the appellant is before us.

2. We have heard learned Counsel for the parties and perused the record.

3. In our opinion the appreciation of evidence by the trial court as well as the High Court, is sound, correct and proper. The evidence given by PW-2 and PW-6 regarding the occurrence and the manner of assault is cogent, consistent and has impressed us as trustworthy. Their evidence has remained unshaken in the cross-examination and nothing has been pointed out which may in any manner discredit their testimony. The evidence of these eye-witnesses coupled with the recovery of pharsa and the medical evidence given by Dr. Khan, PW-10, un-mistakably connects the appellant with the crime, i.e., the assault on the deceased which resulted in his death. The question, however remains about the nature of the offence.

4. From a perusal of the evidence, we find that when the appellant arrived along with the cattle at the filed there was no premeditation for the assault. At the spot, there was an altercation between the parties and in the sudden fight, after the deceased objected to the grazing of the cattle, when possibly hot words or even abuses were exchanged between the parties, the appellant gave a single blow with the pharsa on the head of the deceased. The statement of the appellant and the suggestions given on his behalf to the prosecution witnesses that there was an attempt to assault the deceased with a Parena, which was with the deceased, does not appear to be improbable. Thus, placed as the appellant and the deceased were at the time of the occurrence, it appears to us that the appellant assaulted the deceased in that sudden fight and after giving him one blow took to his heals. He did not cause any other injury to the deceased and therefore it cannot be said that he acted in any cruel or unusual manner. Admittedly, he did not assault PW-2 or PW-6 who were also present also with the deceased and who had also requested the appellant not to allow his cattle to graze in the field of PW-1. This fortifies our belief that the assault on the deceased was made during a sudden quarrel without any premeditation. In this fact situation, we are of the opinion that Exception-4 to Section 300 IPC is clearly attracted to the case of the appellant and the offence of which the appellant can be said to be guilty would squarely fall under Section 304 (Part-I) IPC. The trial court, under the circumstances, was justified in convicting him for the said offence and the High Court, in our opinion, fell in error in interfering with it and that too without dispelling any of the reasons given by the trial court. The judgment of the High Court convicting the appellant for an offence under Section 302 IPC cannot be sustained and we accordingly set it aside and instead convict the appellant for the offence under Section 304 (Part-I) IPC.

5. We, however, find that the sentence of two years RI, and fine of Rs. 500 for the offence under Section 304 (Part-I) IPC, as recorded by the trial court, was grossly inadequate and un-reasonable. Considering the facts and circumstances of the case, in our opinion proper sentence in the case would be for the appellant to suffer RI for a period of six years, besides payment of Rs. 1,000 as fine for the offence under Section 304 (Part-I) IPC. In default of payment of fine, the appellant shall farther undergo RI for four months.

6. The appeal, therefore, succeeds to the extent indicated above and is disposed of.