1. Appellant has filed this appeal against the judgment dated 29.7.2000, passed by the Second Additional Sessions Judge, Seoni, in Sessions Trial No. 77/1996, convicting him under Section 302 read with Section 34 of the Indian Penal Code and sentencing him to imprisonment for life.
2. In short, the prosecution case is that on 1.6.1996 appellant and co-accused Hariram took lift in Truck Number U.P.-77-5811, which was being driven by Kedarnath Shukla. Ashok (deceased) was the second driver. Accused Hariram stretched his leg outside the window of the running truck, which was objected by Ashok. On this, there occurred an altercation between them. At Metewani Dhaba, truck was parked and all the persons alighted from the truck. When Ashok went to drink water, accused Hariram inflicted a blow on him by means of a bamboo stick. Accused Radheshyam gave fist blows to him. Ashok suffered injuries on his head and other parts of body. Kedarnath took Ashok to Police Station Kurai. Since Ashok was not able to speak, he lodged the report of the incident (Ex.P/6). A Case under Section 302 read with Section 34 of the Indian Penal Code was registered against the accused persons. Ashok was sent for medical examination and treatment to Primary Health Centre, Kurai. He was thereafter referred to District Hospital, Seoni and ultimately to Medical College, Nagpur. On 2.6.1996, at about 8.30 p.m., Ashok succumbed to injuries.
3. After investigation, charge sheet was filed and the case was committed for trial.
4. During trial, appellant abjured his guilt and pleaded false implication.
5. Prosecution, to substantiate its case, examined nine witnesses.
6. Trial Court, relying mainly on the evidence of Ghanshyam (PW-2), Kedarnath Shukla (PW-8), Dr. S.S. Naphde (PW-1) and Dr.A.N.Kewalia (PW-3), held both the accused persons guilty and convicted and sentenced them as mentioned above.
7. Co-accused Hariram had filed Criminal Appeal No.2131/2000 before this Court, which was finally heard and decided on 21.07.2009. Appellant filed the present appeal after about 8 years and 342 days of his conviction. In view of the fact that appellant remained ignorant about the fact that his appeal was not filed until co-accused Hariram was released from jail, the present appeal was entertained.
8. Learned counsel for the appellant submitted that the allegation against the appellant was only of assaulting the deceased by hands. Co-accused Hariram, in the circumstances of the case, was acquitted of the charge under section 302/34 I.P.C. and was found liable only under section 304-II I.P.C. and his sentence was reduced to period of custody undergone by him. Counsel submitted that in these circumstances conviction of appellant under section 302 of the Indian Penal Code was erroneous. He submitted that appellant has already served out sentence of more than ten years.
9. Learned counsel for the State submitted that the finding of conviction of the appellant under Section 302 read with Section 34 of the Indian Penal Code was fully justified.
10. According to PW-2 Ghanshyam and PW-8 Kedarnath Shukla, Kedarnath was taking the truck from Nagpur to Kanpur. Second driver Ashok and conductor Munna were also with him. From Khawas border accused Hariram and Radheshyam along with a woman and a girl boarded the truck. On way, Hariram stretched his leg outside the window. When Ashok objected to it, there occurred a wordy quarrel between them. Near Metewani, Kedarnath stopped the truck and all the persons got down for taking tea. According to Kedarnath Shukla (PW-8), both the accused persons assaulted Ashok by Dandas as a result of which he suffered injuries on the head. However, according to Ghanshyam (PW-2) after all of them got down from the truck there occurred an altercation between accused Hariram and the deceased. Deceased admonished Hariram that instead of truck he ought to have travelled in Maruti. They then indulged in scuffle. Suddenly, appellant inflicted a blow by blunt side of axe on the head of Ashok, as a result of which Ashok fell down. Driver Kedarnath went to police station and lodged the report. In para 14 of his statement, Ghanshyam (PW-2), when he was confronted with his police statement Ex.D/1, could not explain as to why the fact that accused Radheshyam inflicted blow by axe on the head of Ashok, was not mentioned by him. Apart from it, from the first information report Ex.P/6, it appears that Radheshyam assaulted deceased only with his hands. In these circumstances, in our opinion, it cannot be held that appellant inflicted injuries to deceased by blunt side of axe. However, it was clear that in furtherance of common intention with accused Hariram he assaulted the deceased.
11. Evidence of aforesaid eyewitnesses finds corroboration from the medical evidence. Dr.S.S.Naphde (PW-1) examined the injuries of Ashok. According to his report (Ex.P/1), he found one lacerated wound 21/2" x 1/4" on left parietal region of the skull. According to him, this injury was caused by hard and blunt object. He referred Ashok to District Hospital for X-ray examination and treatment. Ashok was then referred to Indra Gandhi Medical College, Nagpur, where he was admitted on 2.6.1996. However, in the night, at about 8.30 p.m. he died. On postmortem examination of his body, Dr. A.N. Kewalia (PW-3) found as many as eight injuries. Two injuries were only on left and right temporal region of skull; one was 6 cm. x 1 cm. and other was 1 cm. x 1 cm. Other injuries were superficial abrasions on abdomen, arms, thigh and back. He also detected a fracture of right parietal bone of his skull. There was sub-dural haemetoma in the brain. In his opinion, the death of deceased was homicidal in nature. Postmortem report is Ex.P/2.
12. Other two witnesses PW-5 Ashabai and PW-4 Makkhu were also examined as eyewitnesses of the incident, but they did not support the case of the prosecution. Though PW-2 Ghanshyam and PW-8 Kedarnath were subjected to lengthy cross-examination but except some minor contradictions nothing could be elicited out to render their testimony unreliable. On scanning the evidence of aforesaid two eyewitnesses carefully, we find it established that in furtherance of common intention accused Hariram caused injury to Ashok on his head which resulted into his death.
13. The next question before us is as to what offence in the facts and circumstances of the case is made out against the appellant. PW-2 Ghanshyam and PW-8 Kedarnath categorically stated that the incident occurred suddenly after an altercation when deceased objected to Hariram that he should not stretch his leg out of the window in running truck. Accused persons were not known to deceased from before. The incident of assault occurred at the spur of moment in the sudden quarrel. There was no evidence to indicate that the assault was premeditated. However, since the appellant acted in furtherance of common intention with accused Hariram who wielded stick and inflicted its blow on the head of deceased, it could be inferred that he knew that he was likely to cause his death. In these circumstances, conviction of appellant under Section 302 read with Section 34 of the Indian Penal Code was not justified. He was liable to be punished only under Section 304-II of the Indian Penal Code.
14. In similar circumstances, in Criminal Appeal No.2131/2000, the conviction of co-accused Hariram under section 302/34 I.P.C. was also modified to one under section 304-II of the Indian Penal Code.
15. For the foregoing reasons, conviction and sentence of the appellant under Section 302 read with Section 34 of the Indian Penal Code is set aside and instead he is convicted under Section 304-II of the Indian Penal Code and sentenced to imprisonment already undergone by him, which comes to be over ten years.
16. Appellant, who is in custody, shall be released forthwith, if not required in any other case.
17. Appeal partly allowed.