IN THE HIGH COURT OF MADHYA PRADESH AT JABALPUR CR. APPEAL No.935/2004 1. Tularam aged about 35 years S/o Vipat Lodhi 2. Sakharam, aged about 42 years, S/o Vipat Lodhi Both R/o Village Devrimaal Police Station Chand, District Chhindwara ………… Appellants Vs. State of Madhya Pradesh ………… Respondent PRESENT : Hon’ble Shri Justice Ajit Singh & Hon’ble Shri Justice B.D.Rathi. ---------------------------------------------------------------------------------------------- Smt. Durgesh Gupta, Advocate for the appellants. Shri Amit Pandey, Government Advocate for the respondent- State. ---------------------------------------------------------------------------------------------- JUDGMENT
(1/8/13) The following judgment of the Court was delivered by: B. D. Rathi, J.Being aggrieved with the judgment of conviction and sentence dated 28.5.04 passed in Sessions Trial No.211/2002 by the Court of II Additional Judge to the Court of I Additional Sessions Judge, Chhindwara, this Criminal Appeal has been preferred under Section 374(2) of the Code of Criminal Procedure (for short “the Code”.), whereby appellant no.1 Tularam has been convicted under Section 307 read with 34 and 302 of the Indian Penal Code (for short ::
2. :: Cr. Appeal No.935/2004 “the IPC”.) while appellant Sakharam has been convicted under Section 307 and 302 read with 34 of the IPC and sentenced accordingly.
2. Prosecution case in brief is that on 9.6.2002 at about 6 pm, some altercation took place between Ramnath and co-accused Raju at the Flourmill of former. Thereafter at about 7:30 pm when Ramnath was returning to his home after closing his Flourmill, Raju restrained him wrongfully and started quarrelling. At that time, Bipatlal Lodhi, grandfather of Raju, armed with Lathi, came on the spot and dealt a Lathi blow on Ramnath’s head. On hearing the commotion, nephew Santu and brother Badri Lodhi of Ramnath came to the spot. At that time Tularam, uncle of Raju, armed with a Ballam and Sakharam armed with a Lathi also came there and started quarrelling. Thereafter, Tularam pierced his Ballam on the left side of the chest of Badri as a result of which he fell down. Tularam then pierced a Ballam on the left shoulder of Ramnath. Sakharam dealt two Lathi blows on the head of Santu as a result of which he became unconscious. Raju threw Ramnath on the ground causing him injuries on the head. The incident was witnessed by Jogi Lodhi, Mahasigh, Shivsingh Gond, who also intervened. Thereafter, Badri was lifted and brought to his home, where he was found to be dead. Thereafter, complainant Ramnath along with Santu, Gendlal Lodhi, Suresh Lodhi and Hazari Lodhi lodged the First Information Report at Police Station Chand.
3. On being charged with the offences, the appellants abjured the guilt. In their examination under section 313 of the Code of Criminal Procedure, they pleaded false implication.
4. Accused Raju was convicted under Sections 341 and 323 read with 34 of the IPC, whereas accused Bipat was convicted under Section 323 of the IPC and were sentenced accordingly, but no appeal has been preferred on their behalf. ::
3. :: Cr. Appeal No.935/2004 5. At the outset, learned counsel for the appellants submitted that so far as the prosecution version with regard to the alleged incident was concerned, the same was not disputed. However, she assailed the convictions and sentence by saying that only one Ballam blow was dealt on the chest of Badri (since deceased) by Tularam without intention to cause his death, therefore, appellant no.1 Tularam, at the most, could be convicted under Section 304 Part II instead of Section 302 of the IPC. She further submitted that Ramnath had received a contusion on his left shoulder, and, therefore, in this regard Tularam was liable to be convicted only under Section 323 instead of Section 307/34 of the IPC. On behalf of appellant no.2 Sakharam, she submitted that admittedly he had inflicted two Lathi blows on the head of Santu resulting into lacerated wounds together with a fracture, therefore, in absence of doctor’s opinion, he could be convicted only under Section 325 instead of Section 307 of the IPC and he ought to have been acquitted for the offence under Section 302/34 of the IPC as he had not inflicted any injury to Badri in furtherance of the common intention.
6. In response learned Government Advocate, while making reference to the incriminating pieces of evidence, submitted that the impugned judgment was well merited and did not call for any interference.
7. Having regard to the arguments advanced by the parties, record of the trial Court was perused.
8. Ramnath (PW1) has testified that a Ballam blow was dealt by appellant no.1 Tularam on the left side of the chest of Badri as well as on his left shoulder. He further deposed that when Santu tried to intervene, he was also dealt with a Lathi blow by appellant no.2 Sakharam. Testimony of Ramnath was fully corroborated by the ::
4. :: Cr. Appeal No.935/2004 evidence of Maltibai (PW3), Mahasingh (PW5), Shanta Bai (PW7), Shivsingh (PW8), Jogi (PW10) and Horilal (PW11).
9. Dr. D. Moitra (PW15) examined Ramnath and prepared the corresponding injury report (Ex.P/32A). As per the report, Ramnath had received four simple injuries including a contusion that was present over left shoulder. It is said to have been caused by Tularam. The doctor also deposed that as per X-ray report (Ex.P/24), there was no bony injury. In paragraph 11, he has admitted that the injuries of Ramnath, in the absence of any fracture, could be simple in nature.
10. Therefore, it is clear that Tularam had inflicted only one simple injury on Ramnath and for that he is liable to be convicted under Section 323 of the IPC.
11. Now, we advert to the injuries caused to deceased Badri. It is an admitted fact that a Ballam blow was dealt over left chest of Badri by Tularam. Autopsy was conducted by Dr. S. N. Bhaskar (PW17) vide Post Mortem Report (Ex.P/32). He found one penetrating would having a size of 3”. x ½”. x ¼”. on left 5th intercostals space, medial to left nipple. In his opinion, death was caused as a result of shock due to penetrating wound of heart.
12. Appellants had entered into a sudden and unpremeditated quarrel with the complainant party, but appellant no.1 Tularam gave a blow of Ballam to Badri on left side of his chest. Intention of Tularam in causing death of Badri is clearly reflected from the fact that he caused injury on the chest which is a vital part of the body, with such a force, that it resulted in penetrating the heart. His intention to kill Badri can also be inferred from the force applied in causing the injury and the part chosen for the same, else, he could have assaulted Badri on some not vital part. Therefore, his conviction under Section 302 of the IPC ::
5. :: Cr. Appeal No.935/2004 deserves to be maintained. Further, as indicated above, for the injury caused to Ramnath, he is liable to be convicted under Section 323 of the IPC. Similarly, conviction of appellant no.2 Sakharam under Section 307 of the IPC is improper, in as much as, he had inflicted two Lathi blows on the head of Santu, causing two lacerated wounds, each of size 2 x ½ x scalp deep, on right and left frontal region of his skull. In X-ray examination, fracture on Santu’s frontal bone was noticed. However Dr. D.Moitra (PW15) did not opine regarding nature of injuries, therefore, prosecution has failed to prove that the said injuries were dangerous to life. Despite availability of sufficient opportunities, further blows were not inflicted by Sakharam and, therefore, treating the injuries inflicted by him to be grievous in nature caused by hard and blunt object (Lathi), he is liable to be convicted only under Section 325 of the IPC.
13. In the aforesaid premises, it is clear that the quarrel had taken place all of sudden and without any prior meeting of mind. It is also apparent that Tularam had caused injury only to Badri and Ramnath and none else, while Sakharam had inflicted injuries only on Santu. Had there been any common intention, both of them could have assaulted other members of the complainant party due to availability of sufficient opportunity. Therefore, both the appellants, are liable for their independent incriminating acts only.
14. In view of the above and taking into consideration the facts and circumstances of the case, we are of the considered opinion, that appellant no.1 Tularam is liable to be convicted under Sections 302 and 323 of the IPC, while appellant no.2 Sakharam ought to have been convicted only under Section 325 of the IPC. ::
6. :: Cr. Appeal No.935/2004 15. In the result, the appeal is allowed in part. Conviction and consequent sentneces of appellant Tularam for the offence under Section 302 of the IPC are maintained. However, his conviction and corresponding sentences under Section 307/34 of the IPC are set aside. Instead, he is convicted under Section 323 of the IPC and sentenced to undergo R.I. for 6 months. Impugned convictions and corresponding sentences of the appellant no.2 Sakharam are set aside. Instead, he is convicted under Section 325 of the IPC and sentenced to undergo R.I. for seven years and to pay a fine of Rs.2000/- (Rupees two thousand only), in default to suffer R.I. for 6 months. The custodial sentences shall run concurrently.
16. Copy of the judgment be sent to the trial Court for compliance. Appeal partly allowed. (AJIT SINGH) (B.D.RATHI) JUDGE JUDGE 1 8/2013 1/8/2013 (and)