Full Judgment
A.K. Gohil, J.
1. This appeal under Section 374 of the Code of Criminal Procedure has been preferred against the judgment dated 6-7-1998 passed by First Additional Sessions Judge, Ujjain in ST No. 136 of 1996 convicting the appellant-accused Atmaram under Sections 302 and 323, IPC and sentencing him imprisonment for life and also 3 months RI respectively, which shall run concurrently.
2. Appellant-accused is the son of Nagu. Both were prosecuted before the trial Court. Nagu was convicted under Section 323, IPC and sentenced to fine of Rs. 500/- but he has not filed any appeal against the same.
3. As per prosecution story, on 11-3-1996 at about 11.00 p.m. appellant-accused Atmaram and his father Nagu came in front of the house of Balu and started abusing Balu. Balu and his brother Ramaji tried to persuade the appellant-accused Atmaram not to abuse but the accused said that today he will kill him and thereafter he came with a lathi (Gedia) alongwith his father Nagu. Nagu also started shouting and abusing and said that finish them today, whatever happens he will see. Suddenly accused Atmaram assaulted with lathi (Gedia) on the head of Balu. Balu fell down, his brother also tried to save him, then the accused also gave blow on his head and when Gulabbai and Basantibai, sister-in-laws of the deceased came to save him, then Nagu gave a blow on their head also. Kaniram and Chander both also tried to save them. Balu started bleeding from his nose and got swelling on his eyes. Ramaji had also received injuries on his head and blood was oozing. They brought Balu in the bullock-cart to Chikali and thereafter took him to Police Station, Ingoria in a Matador where Ramaji, his brother had lodged First Information Report (Ex. P-1) at 1.10 a.m. in the night. The distance of police station from the incident is 9 kms. The incident took place at Village Bamnapati, Police Station Ingoria, District Ujjain. Crime No. 49 of 1996 was registered initially under Sections 294, 506 and 323/34, IPC.
4. Looking to the serious conditions of Balu, he was shifted to Civil Hospital, Ujjain where Dr. R.S. Dangarh had examined. His report is Ex. P-22. He was admitted in the Hospital. His bed-head ticket is Ex. P-23, Ramaji was also examined by Dr. R.S. Dangarh. His medical examination report is Ex. P- 21. On the next day Balu died. Basantibai and Gulabbai were also examined by Dr. S. Goyal. Their examination reports are Exs. P-25 and P-26. The post-mortem of the dead body was conducted by Dr. C.M. Puranik and post-mortem report is Ex. P-20. The cause of death of Balu, according to P.W. 12 Dr. Puranik, is on account of coma due to head injury. Post-mortem was performed within 12 to 24 hours of death. Thereafter investigation was conducted, offence was converted from the aforesaid sections to Sections 302 and 323, IPC. After investigation appellant alongwith his father Nagu were charge-sheeted for trial. Appellants abjured their guilt and denied their involvement in the incident. On trial, the trial Court held the appellants guilty, convicted and sentenced them as stated above.
5. We have heard Shri Dilip Kumar Saxena, learned counsel for the appellant and Shri Girish Desai, learned Govt. Advocate for the respondent-State.
6. It was argued on behalf on the appellant that all the eye-witnesses are interested parted being the members of one family and the independent witnesses have turned hostile. It is not disputed before us that the appellant and the complainant party both are residents of Village Bamnapati, Police Station Ingoria, District Ujjain. Both are residing in the same vicinity opposite each other's house. It is not disputed that the appellant-Atmaram is the son of Nagu. It is also not disputed that the deceased Balu died a homicidal death. The question for determination before us is as to whether the appellant-accused is responsible for committing the murder of Balu and causing injuries to Rama, Basantibai and Gulabbai.
7. The prosecution examined as many as 18 witnesses in the trial. In defence 5 witnesses were also examined. Ex. P-1 is the FIR which was lodged by P.W. 1-Ramaji, Ex. P-3 is the Panchayatnama. Ex. P-4 is the receipt of dead-body. Exs. P-6 to P-9 and P-18 are the property seizure memos. Ex. P-10 is the spot-map. Ex. P-11 is the Panchnama. Exs. P-14 and P-15 are the arrest memos. Exs. P-16 and P-17 are the Memorandums. Ex. P-20 is the post-mortem report of deceased Balu. Ex. P-21 is the injury report of Ramaji. Ex. P-22 is the injury report of deceased Balu. Ex. P-25 is the injury report of Basantibai. Ex. P-26 is the injury report of Gulabbai. Ex. P-29 is the Chemical Examiner's report.
8. P.W. 1-Ramaji, P.W. 2-Gulabbai, P.W. 3-Basantibai are the injured eye-witnesses. P.W. 4-Shaitanbai, P.W. 5-Kaniram and P.W. 14-Chander are also the eye-witnesses. All the witnesses, P.W. 1-Ramaji, P.W. 2-Gulabbai, P.W. 3-Basantibai and P.W. 4- Shaitanbai uniformly stated that first appellant-Atmaram started abusing and using filthy language and thereafter appellant and his father Naguji both came alongwilh lathis in their hands, again abused and gave lathi blow.
9. As per injury report Ex. P-22 deceased Balu had received contusion 2' x 2' left side of forehead, left upper eyelid. Another contusion 2' x 2' right parietal region and as per post-mortem report Ex. P-20 cause of death is coma because of the head injury and fracture in the frontal bone and right parietal bone which had caused extensive subdural hcamotoma all over the brain. Post-mortem was performed by Dr. CM. Puranik who was also examined before the Court as P.W. 12 and according to his opinion, the cause of death was also due to head injury by hard and blunt object.
10. We have carefully examined the evidence on record. The prosecution evidence cannot be ignored only on the ground that eye-witnesses belong to one family. It was not disputed before us that deceased Balu died a homicidal death as a result of lathi blow on his head by the appellant. As per the evidence of D.W. 1-Sevaram and D.W. 2-Uma, deceased Balu had called the appellant-Atmaram and there was quarrel between them and it was the deceased Balu who had initiated the incident. It is also not in dispute that the incident took place on the road between the two houses which can be said to be a public place. Learned trial Court found him guilty under Sections 302, 323, IPC, convicted him and sentenced him for life imprisonment and 3 months RI.
11. In this case it is significant to note that the appellant had given only single lathi blow. As per evidence, the cause of death is the blow with lathi due to quarrel between the two neighbours' family on account of the previous incident in which the appellant had abused Rekhabai, daughter of the deceased, on the previous day of Holi. P.W. 2- Gulabbai had admitted in Para No. 5 of her statement that Rekhabai, daughter of the deceased, is also the sister of the appellant-Atmaram. None of the prosecution witnesses stated in their evidence that there was any enmity between the appellant and deceased. From the prosecution evidence it is also not clear that there was any intention on the part of the appellant to kill him and the incident took place at the spur of moment. Therefore, the conviction of the appellant under Section 302, IPC is not proper.
12. Looking to the defence evidence also, the cause of incident is quarrel between the two neighbours on some small incident in which appellant had abused Rekhabai, daughter of the deceased, on the previous day of Holi. As per the defence evidence, the deceased Balu was himself responsible for the incident. In view of the facts and circumstances of the case, the case against the appellant falls within the purview of Section 304 Part II, IPC and, therefore, the appellant is held guilty only under Section 304 Part II, IPC instead of under Section 302, IPC.
13. In the result this appeal succeeds and is hereby partly allowed. The conviction of the appellant under Section 302, IPC and sentence of life imprisonment is set-aside. Instead, the appellant is convicted under Section 304 Part II, IPC and is sentenced to undergo imprisonment for 7 years. However, the conviction and sentence passed under Section 323, IPC is maintained. Both the sentence shall run concurrently. The appellant is in jail. He is directed to serve out the remaining part of his sentences.
14. Record of the Court below be returned.